i ^ 
 
Digitized by the Internet Archive 
 
 in 2007 with funding from 
 
 Microsoft Corporation 
 
 http://www.archive.org/details/digestofdecisionOOkentrich 
 
A DIGEST OF DECISIONS 
 
 [INCLUDING DICTA] 
 
 UNDER THE FEDERAL SAFETY APPLIANCE AND 
 HOURS OF SERVICE ACTS 
 
 Act March 2, 1893 (27 Stat. L., 531), as amended April 1, 1896 (29 Stat. L., 85) ; 
 
 Act March 2, 1903 (32 Stat. L., 943); Act April 14, 1910 (36 Stat. L., 298); 
 
 Act March 4, 1907 (34 Stat. L., 1415) 
 
 With references to or excerpts from additional cases in which the 
 
 Acts have been construed; Orders and Administrative Rulings 
 
 of the Interstate Commerce Commission 
 
 PREPARED BY 
 
 OTIS BEALL KENT 
 
 ATTORNEY, INTERSTATE COMMERCE COMMIS^ON 
 
 BT DIRECTION OV THE COMMIS9IOX 
 
 WASHINGTON 
 
 GOVERNMENT PRINTING OFFICE 
 
 1915 
 
.e;!^'^ 
 
 .\>' 
 
 ADDITIONAL COPIES 
 
 or THB PUBLICATION MAY>E PBOCUEED FBOM 
 
 THS SX7PEBINTENDENT OF DOCUMENTS 
 
 OOYEBNMENT PBINTINO OFFICE 
 
 WASHINGTON, D. C 
 
 AT 
 
 50 CENTS PER COPY 
 
PREFACE 
 
 This volume, prepared by direction of the Interstate Commerce 
 Commission, is designed for the convenience of United States attorneys 
 and railway officials engaged in the administration of the Safety 
 Appliance and Hours of Service Acts. It comprehends the subject 
 matter of ^^An Index-Digest of Decisions under the Federal Safety 
 Apphance Acts/' pubHshed by the Commission in 1910, and includes, 
 in addition thereto, a digest of decisions under the Hours of Service 
 Act, and of cases decided subsequent to January 1, 1910, in which 
 the Safety Apphance Acts have been construed. 
 
 Since the pubhcation of the former volume several controverted 
 questions have been settled. In Chicago, B. cfc Q. By. Co. v. Z7. S. 
 (220 U. S., 559), the Supreme Court applied, in a penal action under 
 the Safety Apphance Acts, the rule of absolute habihty previously 
 announced by that tribunal in the Taylor Case (210 U. S., 281), as 
 apphcable in an action for personal injury; and in Delk v. St Louis db 
 S. F. B. Co. (220 U. S., 580), this rule was cited as established law. 
 
 In Southern By. Co. v. U. S. (222 U. S., 20), the Safety Appliance 
 Acts were construed as apphcable to all cars moved over any railroad 
 which is a highway of interstate commerce. 
 
 Other principles of interpretation not decided by the Supreme 
 Court have come to be so well established by decisions of the various 
 District Courts and Circuit Courts of Appeals that they are no longer 
 seriously contested. 
 
 Consideration of these questions in the present volume therefore 
 has been restricted in each instance to an affirmative statement of 
 the proposition involved, together with a hteral excerpt or excerpts 
 from one or more of the decisions in which the point has been 
 decided or discussed, and appropriate references to other decisions 
 in which these ruhngs have been cited with apparent sanction, o» 
 in which a similar conclusion has been reached. 
 
 On the other hand, new questions have arisen under the proviso in 
 the Safety Apphance Act of April 14, 1910, and imder the Hours of 
 Service Act, and, notwithstanding the practical unanimity of judicial 
 utterance in the premises, these points are frequently contested in 
 the courts. In their presentation, therefore, in the present volume, 
 the various decisions of the courts in favor of or adverse to the points 
 involved are quoted in extenso. 
 
 m 
 
lY PREFACE. 
 
 The initial citations under each topic are from the Supreme Court, 
 where the question involved has been considered by that body, fol- 
 lowed in order by decisions or dicta of the Grcuit Courts of Appeals, 
 of the Circuit and District Courts of the United States, and of state 
 tribunals. Decisions or expressions of opinion at variance with 
 what is regarded as the weight of authority are presented in smaller 
 type at the conclusion of each topic, while excerpts from the statutes 
 and from the Orders of the Commission are exhibited in black-face 
 type. 
 
 The Digest comprehends appropriate excerpts from or references 
 to all pertinent decisions pubhshed prior to October 15, 1914, and 
 from or to all the available unpubhshed decisions rendered prior to 
 that date in which the Acts have been construed. Some of the latter 
 decisions have been pubhshed by the Commission, but inasmuch as 
 they have not yet been included in the Official Reports they are 
 shown herein, respectively, as '^imreported." 
 
 The text of the Federal Safety Apphance and Houra of Service 
 Acts, with relevant excerpts from other statutes, will be found in 
 the Appendix (p. 237), together with the Orders and Administrative 
 Rulings of the Interstate Commerce Commission pursuant thereto. 
 A subject index (p. 257) is also appended for convenient reference to 
 the principles of interpretation comprehended in the following pages 
 
 O. B. K. 
 
 Oppioes op the Interstate Commerce Commission, 
 
 Washin-gton, D. C, January I, 1916 
 
TABLE OP CONTENTS 
 
 Tables of Cases, VII. 
 
 Part I. The Safety Appliance Acts, 1 : 
 
 A. Nature and Purpose of the Acts, 7; 
 
 B. Construction and Interpretation of the Acts, 9; 
 
 C. Scope of th.e Acts, 28; 
 
 D. Power Driving Wheel Brakes and Train Brake Systems, 65; 
 
 E. Couplers, 68; 
 
 F. Grab Irons or Handholds, 88; 
 
 G. Standard Height of Drawbars, 86; 
 H. Handbrakes, 80; 
 
 I. Exceptions to the Application of the Acts, 90. 
 
 Part II. The Hours of Service Act, 102 : 
 
 A. Nature and Purpose of the Act, 106; 
 ' B. Construction and Interpretation of the Act, 108; 
 
 C. Scope oi the Act, 120; 
 
 D. Exceptions to the application of the Act, 159; 
 
 E. Carriers' Hours of Service Reports, 173. 
 
 X Part II I. Interstate Commerce, 178 : 
 
 A. "Interstate Commerce" defined, 179; 
 
 B. Federal Control of Interstate Commerce, 186. 
 
 Part IV. Construction of Statutes, 192 : 
 
 General Kules of Statutory Construction as applied in cases under 
 the Safety Appliance and Hours of Service Acts, 192. 
 
 Part V. General Rules of Evidence, Pleading, Practice, and Pro- 
 cedure applied in cases under the Safety Appliance and Hours of 
 Service Acts, 199: 
 
 A. Evidence, 201; 
 
 B. Pleading, Practice, and Procedure, 211. 
 
 Part VI. Actions for Personal Injury, 220: 
 
 General Rules of law applied in cases under the Safety Appliance and 
 Hours of Service Acts, 220. 
 
 Appendix, 235 : 
 
 THE SAFETY APPLIANCE ACTS, 237: 
 
 Act of March 2, 1893, as amended April 1, 1896, 237; 
 Act of March 2, 1903, 239; 
 Act of April 14, 1910, 240; 
 
 Sundry Civil Act of June 28, 1902, Reference to, 243; 
 Sundry Civil Act of March 4, 1911, Excerpt from, 243. 
 Orders of the Interstate Commerce Commission: 
 
 of June 6, 1910, In re Minimum Percentage of Power 
 
 Brakes, 244; 
 of October 10, 1910, In re Standard Height of Drawbars, 244, 
 Administrati via. Ruling joj „tte . Interstate Commerce Commia«» 
 sion, No. 67, May 4, 1908, Handholds-Passenger Cars, 245. 
 
VI TABLE OF CONTENTS. 
 
 Appendix — Continued. 
 
 THE HOURS OF SERVICE ACT, 246: 
 Act o£ March 4, 1907, 246; 
 
 Act to regulate commerce, Excerpt from Section 20, 248. 
 Orders of the Interstate Commerce Commission: 
 
 of June 28, 1911, In re Method and Form of Monthly Reports 
 of Hours of Service of Employees on railroads subject to the 
 Act of March 4, 1907, 249; 
 of April 8, 1912, In re Alteration in the Method and Form 
 of Monthly Reports of Hours of Service of Employees on 
 railroads subject to the Act of March 4, 1907, 249. 
 Administrative Rulings of the Interstate Commerce Commission: 
 No. 56, April 7, 1908, Street Railways, 252; 
 No. 74, May 5, 1908, Deadheading, 252; 
 No. 88, June 26, 1908, Provisos in Sections 2 and 3, 252; 
 No. 108, November 10, 1908, Ferry Employees, 253; 
 No. 275, April 4, 1910, Train Baggagemen, 253; 
 No. 287, March 16, 1908, General Interpretation of the 
 
 Hours of Service Act, 260; 
 No. 342, February 12, 1912, Use by Trainmen of the Tele- 
 graph or Telephone, 263. 
 THE ASH PAN ACT, 264. 
 INDEX, 267. 
 
TABLES OF CASES. 
 
 I. CASES UNDER THE FEDERAL SAFETY APPLIANCE ACTS, WITH 
 OTHER CASES IN WHICH THE ACTS HAVE BEEN CONSTRUED. 
 
 A. — Penal Actions. 
 
 Page. 
 Atchison, T. & S. F. Ry. Co. v. U. S. (172 Fed., 1021), Per Curiam [CCA-7]. . 11 
 
 Atchison, T. & S. F. Ry. Co. v. U. S. (198 Fed., 637), Baker, C. J. [CCA-7]. . 53, 54, 89 
 Atchison, T. & S. F. Ry. Co. v. U. S. (172 Fed., 194), Grosscup, C. J. [CCA-7]. 20-21 
 Atchison, T. & S. F. Ry. Co., U. S. •?;. (unreported), Wellborn, D. J. [DC]. . 13, 15 
 Atchison, T. & S. F. Ry. Co., U. S. v. (unreported), Sloan, D. J. [DC] .... 15, 
 
 35, 44, 63, 69, 75, 87, 95, 201, 204, 206 
 Atchison, T. & S. F. Ry. Co., U. S. v. (unreported), Landis, D. J. [DC] .. 20, 206, 208 
 Atchison, T. & S. F. Ry. Co., U. S. v. (167 Fed., 696), De Haven, D. J. [DC]. . 11, 
 
 63, 69, 75, 80, 94, 95, 97, 202 
 Atchison, T. & S. F. Ry. Co., U. S. v. (150 Fed., 442), Lewis, D. J. [DC] 
 
 [reversed by CCA-8, 163 Fed., 517] 7,15 
 
 Atchison, T. & S. F. Ry. Co., U. S. v. (163 Fed., 517), Van Devanter, C.J. 
 
 [CCA-8] [revemng DC, 150 Fed., 442] 11, 13, 19, 24 
 
 Atlantic Coast Line R. Co. v. U. S. (168 Fed., 175), Pritchard, C. J. [CCA-4] 
 
 [affirming DC, 153 Fed., 918] 7, 10, 11, 20, 24, 195, 213, 222 
 
 Atlantic Coast Line R. Co., U. S. v. (182 Fed., 284), Speer, D. J. [DC] 20, 215 
 
 Atlantic Coast Line R. Co. and Southern Ry. Co., U. S. v. (unreported), 
 
 Brawley, D. J. [DC] 12,13,15,20,37,39,45,181,184,204 
 
 Atlantic Coast Line R. Co., U. S. v. (214 Fed., 498), Call, D. J. [DC] 8, 50, 55 
 
 Atlantic Coast Line R. Co., U. S. v. (153 Fed., 918), Pumell, D. J. [DC] 
 
 [affirmed by CCA-4, 168 Fed., 175] 10,21,24,197,214,222 
 
 Baltimore & 0. R. Co., U. S. v. (26 App. D. C, 581), McComas, Justice • 218 
 
 Baltimore & O. R. Co., U. S. v. (184 Fed., 94), McDowell, D. J. [DC] . . 47, 84, 85, 194 
 
 Baltimore & O. R. Co., U. S. v. (unreported), Dayton, D. J. [DC] 10, 
 
 12, 13, 20, 46, 47, 63, 85, 95, 96, 201, 202, 207, 208 
 
 Baltimore & O. R. Co., U. S. v. (unreported), Sater, D. J. [DC] 12, 
 
 14, 20, 37, 75, 179, 202, 206, 207 
 Baltimore & O. R. Co. and Toledo Terminal R. Co., U. S. v. (unreported), 
 
 Cochran, D.J. [DC] 12, 14, 20, 37, 39, 47, 74, 75, 80, 85, 96, 201, 202, 204, 206 
 
 Baltimore & O. R. Co., U. S. v. (unreported), Anderson, D. J. [DC] 20, 77 
 
 Baltimore & O. R. Co., U. S. v. (170 Fed., 456), Orr, D. J. [DC] 11, 
 
 13, 15, 19, 37, 40, 69, 195, 204, 207, 225 
 
 Baltimore & 0. R. Co., U. S. v. (176 Fed., 114), Orr, D. J. [DC] 20, 66, 202 
 
 Baltimore & 0. R. Co., U. S. v. (185 Fed., 486), Buffington, C. J. [CCA-3].. 217 
 
 Belt Ry. of Chicago, U. S. v, (unreported), Landis, D. J. [DC] [affirmed by 
 
 CCA-7, 168 Fed., 542] 32,49,59,181 
 
 Belt Ry. of Chicago v, U. S. (168 Fed., 542), Baker, C. J. [CCA-7] [affirming 
 
 DC, unreported] 31, 32, 33, 48, 53, 59, 180 
 
 Boston & M. R. Co., U. S. v. (168 Fed., 148), Dodge, D. J. [DC] 10, 
 
 19, 38, 74, 83, 85, 202, 203 
 
vm TABLES OF CASES. 
 
 Page. 
 
 Central of Georgia Ry. Co., U. S. v. (157 Fed., 893), Hundley, D. J. [DC]. . 7, 
 
 36, 62, 68, 69, 73, 179, 181, 192, 201, 202 
 
 Central Vermont Ry. Co. v. U. S. (205 Fed., 40), Dodge, C. J. [CCA-1].. . . 46, 72, 217 
 
 Chesapeake & 0. Ry. Co., U. S. v. (unreported), Keller, D. J. [DC] 20, 
 
 37, 39, 44, 66, 69, 73, 202 
 
 Chesapeake & O. Ry. Co., U. S. v. (213 Fed., 748), Pritchard, C. J. [CCA-4] 49, 98 
 
 Chicago & N. W. Ry. Co., U. S. v. (157 Fed., 616), Hunger, D. J. [DC] [re- 
 versed by CCA-8, 168 Fed., 236] 8, 39, 43, 44, 45, 46, 47, 84, 184, 195, 197 
 
 Chicago & N. W. Ry. Co. v. U. S. (168 Fed., 236), Amidon, D. J. [CCA-8] 
 
 [reversing DC, 157 Fed., 616] 8, 39, 40, 44, 45, 93, 182 
 
 Chicago, B. & Q. Ry. Co., U. S. v, (156 Fed., 180), Munger, D. J. [DC] [af- 
 firmed by CCA-8, 170 Fed., 656] 13, 14, 192 
 
 Chicago, B. & Q. Ry. Co. v. U. S. (170 Fed., 556), Adams, C. J. [CCA-8] 
 [affirming DC, 156 Fed., 180] 11, 13, 14, 15, 20, 21 
 
 Chicago, B. & Q. Ry. Co. v. U. S. (220 U. S., 559), Harlan, Justice [SC] [af- 
 firming CCA-8, 170 Fed., 556] 11,12,13,19,24,108,112,114 
 
 Chicago, B. & Q. Ry. Co. v. U. S. (211 Fed., 12), Amidon, D. J. [CCA-8] . . 27, 
 
 50 61 73 99 100 203 229 
 
 Chicago Great Western Ry. Co., U. S. v. (162 Fed., 775), Reed, D. J. [DC]. . .' ' 7, 
 
 8, 14, 19, 26, 38, 39, 48, 69, 94, 95, 179, 180, 201, 204, 205 
 
 Chicago, M. & P. S. Ry. Co., U. S. v. (unreported), Dietrich, D. J. [DC] [af- 
 firmed by CCA-9, 196 Fed., 882] 19, 71, 88 
 
 Chicago, M. & P. S. Ry. Co. v. U. S. (196 Fed., 882), Gilbert, C. J. [CCA-9] 
 
 [aflirming DC, unreported] 18, 19, 46, 47, 71, 79, 87, 88, 89 
 
 Chicago, M. & St. P. Ry. Co., U. S. v. (149 Fed., 486), McPherson, D. J. [DC] 
 
 [affirmed by CCA-8, 165 Fed. , 423] 7, 14, 
 
 21, 27, 28, 45, 46, 68, 73, 75, 97, 184, 186, 196, 197 
 
 Chicago, M. & St. P. Ry. Co. v. U. S. (165 Fed., 423), Hook, C. J. [CCA-«] 
 [affirmingDC,149Fed.,486] 11,13,37,40,44,46,47,48,50,95,97 
 
 Chicago, P. & St. L. Ry. Co. etal., U. S. v. (143 Fed., 353), Sanborn, D. J. 
 [DC] 21,217 
 
 Chicago, R. I. & P. Ry. Co., U. S. v. (173 Fed., 684), McPherson, D. J. [DC]. 7, 20, 
 
 21.26,192,197 
 
 Chicago,' St. P. M. & 0. Ry. Co. v. U. S. (162 Fed., 835), Adams, C. J. [CCA-8] 
 [aflirming DC, 151 Fed., 84) 112, 117 
 
 Cincinnati, H & D. R. Co., U. S. v. (unreported), Tayler, D. J. [DC] 17 
 
 Colorado & N. W. R. Co., U. S. v. (157 Fed., 321), Sanborn, C. J. [CCA-8] 
 [certiorari denied (209 U. S., 544)] 22, 30, 33, 179, 181, 184, 186, 187, 193, 194, 195 
 
 Colorado & N. W. R. Co., U. S. v. (157 Fed., 342), Sanborn, C. J. [CCA-8]. . 22, 33, 183 
 
 Colorado Midland Ry. Co., U. S. v. (202 Fed., 732), Sanborn, C. J [CCA-8]. . 98, 101 
 
 Denver & R. G. R. Co., U. S. v. (163 Fed., 519), Van Devanter, C. J. [CCA-8]. 11, 13, 
 
 18, 19, 62, 69, 71, 72, 76, 79, 87, 217 
 Detroit, T. & I. Ry. Co. v. State of Ohio (91 N. E., 869), Summers, C. J. [Ohio]. 187, 189 
 
 Elgin J. & E. Ry. Co. v.V.S. (168 Fed., 1), Baker, C. J. [CCA-7] 10, 30, 
 
 39, 40, 42, 44, 50, 179, 185, 187, 209, 217 
 
 El Paso & S. W. R. Co., U. S. v. (unreported), Doan, D. J. [DC] 35,73 
 
 El Paso & S. W. R. Co., U. S. v. (unreported), Maxey, D. J. [DC] 14, 15 
 
 Erie R. Co. v. U. S. (197 Fed., 287), Buffington, C. J. [CCA-3]. . 7, 39, 49, 50, 56, 59, 62 
 Erie R. Co., U. S. v. (166 Fed., 352), Lanning, D. J. [DC]. . 11, 24, 30, 37, 40, 42, 180, 195 
 Erie R. Co., U. S. v. (212 Fed., 853), Buffington, C. J. [CCA-3] 60, 67 
 
SAFETY APPLIANCE ACTS. ix 
 
 Page. 
 Galveston, H. & S. A. Ry. Co. v. U, S. (183 Fed., 579), Per Curiam [CCA-5]. 12 
 
 Galveston, H. & S. A. Ry. Co. v. U. S. (199 Fed., 891), Pardee, C. J. [CCA-5]. 12, 27, 
 
 94, 97, 98, 100, 101 
 Geddes, U. S. v. (131 Fed., 452), Richards, C. J. [CCA-6] [affirming DC, 
 
 180 Fed., 480] 22,29,33,180 
 
 Geddes, U. S. v. (180 Fed., 480), Thompson, D. J. [DC] [affirmed by CCA-6, 
 
 131 Fed., 452] 22,33 
 
 Grand Trunk Ry. Co. of Can., U. S. v. (203 Fed., 775), Hazel, D. J. [DC]. 16, 38, 54, 62 
 Great Northern Ry. Co., U. S. v. (145 Fed., 438), Whitson, D. J. [DC]. . 43, 48, 185, 190 
 Great Northern Ry. Co., U. S. v. (150 Fed., 229), Whitson, D. J. [DC]. . 11, 14, 21, 80 
 
 Illinois Central R. Co., U. S. v. (156 Fed., 182), Evans, D. J. [DC] [reversed 
 
 by CCA-6, 170 Fed., 542] 12, 14, 15, 17, 20, 76, 81, 196, 197 
 
 Illinois Central R. Co., U. S. v. (170 Fed., 542), Severens, C. J. [CCA-6] 
 
 [reversing DC, 156 Fed., 182; certiorari denied, 214 U. S., 520] 12, 14, 
 
 19,20,21,76,217 
 Illinois Central R. Co., U. S. v. (177 Fed., 801), Knappen, C. J. [CCA-6]. ... 12, 71, 
 
 76, 78, 192, 214 
 
 Illinois Central R. Co., U. S. v. (166 Fed., 997), Wright, D. J [DC] 40,201 
 
 Indiana Harbor R. Co., U. S. v. (157 Fed., 565), Landis, D. J. [DC] 14, 76 
 
 International & Great Northern R. Co., U. S. v. (174 Fed., 638), Shelby, C. J. 
 [CCA-6] 36,39,44,48 
 
 Lehigh Valley R. Co., U. S. v. (162 Fed., 410), McPherson, D.J. [DC].... 11,97 
 Lehigh Valley R. Co., U. S. v. (unreported) McPherson, D. J [DC]. . 7, 15, 20, 69, 201 
 Louisville & N. R. Co. v. U. S. (186 Fed., 280), Severens, C. J. [CCA-6].. 30,37, 
 
 40,207,208,214 
 
 Louisville & N. R. Co., U. S. v. (156 Fed., 195), Evans, D. J. [DC] 95 
 
 Louisville & N. R. Co., U. S. v, (167 Fed., 306), Severens, C. J. [CCA-6] 
 
 [affirming DC, 156 Fed . , 193] 21 
 
 Louisville & N. R. Co., U. S. v. (156 Fed., 193), Evans, D. J. [DC] [affirmed 
 
 by CCA-6, 167 Fed., 306] 95 
 
 Louisville & N. R. Co., U. S. v. (162 Fed., 185), Toulmin, D. J. [DC].. 13,14,19, 
 
 44, 69, 71, 75, 201 
 
 Montpelier & W. R. R. Co., U. S. v. (175 P^ed., 874), Martin, D. J. [DC]. 71, 82, 201, 217 
 
 Nevada County N. G. R. Co., U. S. v. (167 Fed., 695), De Haven, D. J. [DC]. 68, 69, 
 
 74, 75, 201 
 New York Central & H. R. R. Co., U. S. -y. (205 Fed., 428), Hazel, D. J. [DC]. 62 
 
 Norfolk & W. Ry. Co., U. S. v. (184 Fed., 99), McDowell, D. J. [DC].... 47,85 
 Norfolk & W. Ry. Co. v. U. S. (177 Fed., 623), Dayton, D. J. [CCA-4].. 11,18, 
 
 27, 37, 40, 47, 73, 81, 82, 205, 206, 207, 217 
 Norfolk & W. Ry. Co. v. U. S. (191 Fed., 302), Pritchard, C. J. [CCA-4]. 12, 203, 210, 216 
 Northern Pacific Ry. Co., U. S. v. (unreported), Cushman, D. J. [DC].. 12,16, 
 
 20, 26, 42, 46, 62, 69, 72, 73, 83, 90, 91, 92, 99, 100, 195, 202 
 Northern Pacific Terminal Co., U. S. v. (144 Fed., 861), Wolverton, D. J. 
 . [BC] 32,36,43,44,76 
 
 Oregon Short Line R. Co., U. S. v. (180 Fed., 483), Dietrich, D. J. pC].. 7, 13 
 
 Pacific Coast Ry. Co., U. S. v. (173 Fed., 453), Wellborn, D. J. [DC] [affirmed 
 
 by CCA-9, 173 Fed., 448] ^184 
 
TABLES OF CASES. 
 
 I'age. 
 
 Pacific Coast Ry. Co. v. U. S. (173 Fed., 448), Gilbert, C. J. [CCA-9J [allinii- 
 
 ing DC, 173 Fed., 453] 49, 181 
 
 Pennsylvania II. Co., U. S. v. (162 Fed., 408), McPherson, D. J. [DC].... 11 
 
 Pennsylvania R. Co., U. S. v. (unreported), Orr, D. J. [DC] 10, 12, 69 
 
 Pennsylvania R. Co., U. S. v. (unreported) McPherson, D. J. [DC] 7,13, 
 
 15, 20, 26, 27, 69, 75, 81, 201 
 
 Pere Marquette R. Co., U. S. v. (211 Fed., 220), Sessions, D. J. [DC] 12, 16, 
 
 27, 39, 51, 55, 193 
 
 Philadelphia & R. Ry. Co. v. U. S. (191 Fed., 1), Gray, C. J. [CCA-3] 16, 34 
 
 Philadelphia & R. Ry. Co., U. S. v. (162 Fed., 403), McPherson, D. J. [DC]. . 11 
 
 Philadelphia & R. Ry. Co., U. S. v. (162 Fed., 405), McPherson, D. J. [DC] 11, 97 
 Philadelphia & R. Ry. Co., U. S. v. (unreported), McPherson, D. J. [DC]. 13, 69, 75, 201 
 Philadelphia & R. Ry. Co., U. S. v. (160 Fed., 696), McPherson, D. J. [DC] 7, 
 
 13, 69, 75, 81, 201 
 Pittsburgh, C. C. & St. L. Ry. Co., U. S. v. (143 Fed., 360), Thompson, D. J. 
 
 [DC] 52 
 
 Raihoad Com. of Ind., Southern Ry. Co. v, (100 N. E., 337), Myers, J. [Indi- 
 ana] 37,42,84,187,189 
 
 Rio Grande Western Ry. Co., U. S. v. (174 Fed., 399), Sanborn, C. J. [CCA-8]. 75, 93 
 
 St. Louis I. M. & S. Ry. Co., U. S. v. (164 Fed., 516), McCall, D. J. [DC]. ... 37, 
 
 43, 44, 73, 95, 97 
 St. Louie S. W. Ry. Co. v. U. S. (183 Fed., 770), Per Curiam [CCA-5]. ... 20, 25, 214 
 St. Louis S. W. Ry. Co. of Texas, U. S. v. (184 Fed., 28), Shelby, C. J. [CCA-5] 7, 
 
 20, 21, 26, 38, 46, 119, 193 
 
 Southern Pacific Co., U. S. v. (167 Fed., 699), De Havi^n, D. J. [DC]. 11, 
 
 13, 14, 17, 27, 39, 46, 62, 63, 69, 73, 77, 94, 96, 97, 201, 203, 206 
 
 Southern Pacific Co., U. S. v. (169 Fed., 407), Adams, C. J. [CCA-8] 11, 
 
 13, 15, 19, 39, 45, 92, 93 
 
 Southern Pacific Co., U. S. v. (154 Fed., 897), Woh i^rton, D. J. [D.C] 11, 
 
 13, 14, 15, 63, 94, 97 
 
 Southern Pacific Co., U. S. v. (unreported), Farriiurton, D. J. [DC] 12, 
 
 16, 20, 39, 46, 47, 48. 52, 64, 69, 75, 96, 97, 179, 201, 202, 205 
 Southern Ry. Co. v. Raih-oad Com. of Ind. (100 N. E., 837), Myers, J. [Indi- 
 ana] 37, 42, 84, 187, 189 
 
 Southern Ry. Co. v. U. S. (222 U. S., 20), Van Devanter, Justice [SC] [affirming 
 
 DC, 164 Fed., 347] " 8, 9, 27, 34, 41, 50, 58, 129, 180, 185, 190, 193 
 
 Southern Ry. Co., U. S. v. (135 Fed., 122), Humphrey, D. J. [DC] 7, 
 
 13, 21, 26, 75, 192, 196 
 
 Southern Ry. Co., U. S. v. (170 Fed., 1014), Boyd, D. J. [DC] 7, 
 
 11, 13, 20, 37, 40, 44, 46, 47, 69, 75, 192, 201, 202 
 Southern R> . Co., U. S. v. (164 Fed., 347), Hundley, D. J. [DC] [affirmed by 
 
 SO, 222 U. S., 20] 10, 24, 30, 42, 49, 187, 190, 191 
 
 Spokane & I. E. R. Co., U. S. v. (unreported), Rudkin, D. J. [DC] 209 
 
 Spokane & I. E. R. Co. v, U. S. (210 Fed., 243), Ross, C. J. [CCA-9] [affirming 
 
 DC, 206 Fed., 988] 33, 209 
 
 Spokane & I. E. R. Co., U. S. v. (206 Fed., 988) Rudkin, D. J. [DC] [affirmed 
 
 by CCA-9, 210 Fed., 243] 34,37 
 
 State of Ohio, Detroit, T. & I. Ry. Co. v. (91 N. E., 869), Summers Ch. J. [Ohio]. 187, 189 
 
 Terminal R. Assn. of St. L., U. S. v. (unreported), Dyer, D. J. [DC] 20, 81 
 
 Trinity & B. V. Ry. Co., U. S. v. (211 Fed., 448), Call, D. J. [CCA-5]. 12, 14, 98, 212, 215 
 
SAFETY APPLIANCE ACTS. 
 
 Page. 
 Union Stock Yarda Co. of Omaha v. U. S. (169 Fed., 404), Van Devanter, C. J. 
 
 [CCA-8] [affirming DC, 161 Fed., 919] 29, 50 
 
 Union St<x)k Yards Co. of Omaha, U. S. v. (161 Fed., 919), Munger, D.J. 
 
 [DC] [affirmed by CCA-8, 169 Fed., 404] 29, 30 
 
 U. S. V. Atchison, T. & S. F. Ry. Co. (unreported). Wellborn, D. J. pC]. . . . 13, 15 
 
 U. S. V. Atchison, T. & 8. F. Ry. Co. (unreported), Sloan, D. J. [DC] 15, 
 
 as, 44, 63, 69, 75, 87, 95, 201, 204, 206 
 U. S. V. Atchison, T. & S. F. Ry. Co. (unreported), Landis, D. J. pC]. . . 20, 206, 208 
 U. 8. V. Atchison, T. & S. F. Ry. Co. (167 Fed., 696), De Haven, D. J. [DC]. . 11, 
 
 63, 69, 75, 80, 94, 95, 97, 202 
 U. S. V. Atchison, T. & S. F. Ry. Co. (150 Fed., 442), Le^v-is, D. J. [DC]. .. 7, 15 
 U. S. V. Atchison, T. & S. F. Ry. Co. (163 Fed., 517), Van Devanter C. J. 
 
 [CCA-8] [reversing DC, 150 Fed., 442] 11,13,19,24 
 
 U.S., Atchison, T. & S. F. Ry. Co. v. (172 Fed., 194), Groeecup, C. J. [CCA-7] 20, 21 
 U. S., Atchison, T. & S. F. Ry. Co. v. (172 Fed., 1021), Per Curiam [CCA-7]. 11 
 
 U. S.. Atchison, T. & S. F. Ry. Co. v. (198 Fed., 637), Baker, C.J. [CCA-7]. 63,64,89 
 
 U. S. r. Atlantic Coast Line R. Co. (unreported), Brawley, D. J. pC] 12, 
 
 13, 15, 20, 37, 39, 45, 181, 184, 204 
 
 U. S. V. Atlantic Coast J^ne R. Co. (153 Fed., 918), Pumell, D. J. pC] 10, 
 
 21, 24, 197, 214, 222 
 U. S., Atlantic Coast Line R. Co. v. (168 Fed., 175), Pritchard, C. J. [CCA-4] 
 
 [affirming DC, 153 Fed., 918] 7,10,11,20,24,195,213,222 
 
 U. S. V. Atlantic Coast Line R. Co. (182 Fed., 284), Speer, D. J. [DC] 20,215 
 
 U. S. V. Atlantic Coast Line R. Co. (214 Fed., 498), Call, D. J. [DC] 8, 50, 55 
 
 U. S. V. Baltimore & 0. R. Co. (26 App. D. C, 581), McComaa, Justice 218 
 
 U. S. V. Baltimore & O. R. Co. (unreported), Daj-ton, D. J. [DC] 10, 
 
 12, 13, 20, 46, 47, 63, 85, 95, 96, 201, 202, 207, 208 
 
 U. S. V. Baltimore & O. R. Co. (unreported), Sater, D. J. [DC] 12, 
 
 14, 20, 37, 75, 179, 202, 206, 207 
 
 U. 8. V. Baltimore & O. R. Co. (unreported), Cochran, D. J. pC] 12, 
 
 14, 20, 37, 39, 47, 74, 75, 80, 85, 96, 201, 202, 204, 206 
 
 U. S. V. Baltimore A O. R. Co. (unreported), Anderson, D. J. pC] 20, 77 
 
 U. 8. V. Baltimore & O. R. Co. (170 Fed., 456), Orr, D. J. [DC] 11, 
 
 13, 15, 19, 37, 40, 69, 195, 204, 207, 225 
 
 U. 8. V. Baltimore & O. R. Co. (176 Fed., 114), Orr, D. J. [DC] 20,66,202 
 
 U. S. V. Baltimore & O. R. Co. (185 Fed., 486), Buffington, C. J. [CCA-3]. . - 217 
 
 U. S. V. Baltimore & O. R. Co. (184 Fed., 94), McDoweU, D. J. [DC].. 47,84,85,194 
 V.S.v. Belt Ry. Co. of Chicago (unreported), Landis, D. J. [DC] [affirmed 
 
 by CCA-7, 168 Fed., 542] 32,49,59,181 
 
 U. S., Belt Ry. Co. of Chicago v. (168 Fed., 542), Baker, C. J. [CCA-7] 
 
 [affirming DC, unreported] : 31,32,33,48,53,59,180 
 
 U. 8. V. Boston & M. R. Co. (168 Fed., 148), Dodge, D. J. [DC] 10, 
 
 19,38,74,83,85,202,203 
 
 U. S. V. Central of Ga. Ry. Co. (157 Fed., 893), Hundley, D. J. [DC] 7, 
 
 36, 62, 68, 69, 73, 179, 181. 192, 201, 202 
 U. 8., Central Vermont Ry. Co. v. (205 Fed., 40), Dodge, C. J. [CCA-l]... 46,72,217 
 
 U. 8. V. Chesapeake & O. Ry. Co. (unreported), Keller, D. J. [DC] 20, 
 
 37,39,44,66,69,73,202 
 U. 8. V. Chesapeake & 0. Ry. Co. (213 Fed., 748), Pritchard, C. J. [CCA-4]. . 49, 98 
 U. 8. V, Chicago & N. W. Ry. Co. (157 Fed., 616), Munger, D. J. pC] [re- 
 versed by CCA-8, 168 Fed., 236] 8,39,43,44,45,46,47,84,184,195,197 
 
 U. 8., Chicago & N. W. Ry. Co. v. (168 Fed., 236), Amidon, D. J. [CCA-^] 
 [reversing DC, 157 Fed., 616] 8,39.40.44,4-^93,182 
 
xn TABLES OF CASES. 
 
 Page. 
 U. S. V. Chicago, B. & Q. Ry. Co. (156 Fed., 180), Hunger, D. J. [DC] [affirmed 
 
 by CCA-8, 170 Fed., 556] 13, 14, 192 
 
 U. S., Chicago, B. & Q. Ry. Co. v. (170 Fed., 556), Adams, C. J. [CCA-8] 
 
 [affirming DC, 156 Fed., 180] 11, 13, 14, 15, 20, 21 
 
 U. S., Chicago, B. & Q. Ry. Co. v. (220 U. S., 559), Harlan, Justice [SC] 
 
 [affirming CCA-8, 170 Fed., 556] 11, 12, 13, 19, 24, 108, 112, 114 
 
 U. S., Chicago, B. & Q. Ry. Co. v. (211 Fed., 12), Amidon, D. J. [CCA-8]. . 27, 
 
 50,61,73,99,100,203,229 
 
 U. S. V. Chicago G. W. Ry. Co. (162 Fed., 775), Reed, D. J. [DC] 7, 
 
 8, 14, 19, 26, 38, 39, 48, 69, 94, 95, 179, 180, 201, 204, 205 
 U. S. V. Chicago, M. & P. S. Ry. Co. (unreported), Dietrich, D. J. [DC] 
 
 [affirmed by CCA-9, 196 Fed., 882] 19,71,88 
 
 U. S., Chicago, M. & P. S. Ry. Co. v. (196 Fed., 882), Gilbert, C. J. [CCA-9] 
 
 [affirming DC, unreported] 18, 19,46, 47, 71, 79, 87, 88, 89 
 
 U. S. V. Chicago, M. & St. P. Ry. Co. (149 Fed., 486), McPherson, D. J. 
 
 [DC] [affirmed by CCA-8, 165 Fed., 423] 7, 
 
 14, 21, 27, 28, 45, 46, 68, 73, 75, 97, 184, 186, 196, 197 
 U. S., Chicago, M. & St. P. Ry. Co. v. (165 Fed., 423), Hook, C. J. [CCA-8] 
 
 [affirming DC, 149 Fed., 486] 11, 13, 37, 40, 44, 46, 47, 48, 50, 95, 97 
 
 U. S. V. Chicago, P. & St. L. Ry. Co. et al. (143 Fed., 353), Sanborn, D. J. 
 
 [DC] 21,217 
 
 U. S. r. Chicago, R. I. & P. Ry. Co. (173 Fed., 684), McPherson, D. J. [DC]. . 7, 
 
 20,21,26,192,197 
 U. S., Chicago, St. P., M. & O. Ry. Co. v. (162 Fed., 835), Adams, C. J. [CCA-8] 
 
 [affirming DC, 151 Fed., 84] 112, 117 
 
 TJ. S. V. Cincinnati, H. & D. R. Co. (unreported), Tayler, D. J. [DC] 17 
 
 U. S. V. Colorado & N. W. R. Co. (157 Fed., 321), SSnborn, C. J. [CCA-8] 
 
 [certiorari denied, 209 U. S., 544] 22, 30, 33, 179, 181, 184, 186, 187, 193, 194, 195 
 
 U. S. V. Colorado & N. W. R. Co. (157 Fed., 342), Sanborn, C. J. [CCA-8]. . 22, 33, 183 
 U. S. V. Colorado Midland Ry. Co. (202 Fed., 732), Sanborn, C. J. [CCA-8]. . . . 98, 101 
 U. S. V. Denver & R. G. R. Co. (163 Fed., 519), Van Devanter, C. J. [CCA-8]. 11, 
 
 13, 18, 19, 62, 69, 71, 72, 76, 79, 87, 217 
 
 U. S. V. El Paso & S. W. R. Co. (unreported), Doan, D. J. [DC] 35, 73 
 
 U. S. V. El Paso & S. W. R. Co. et al. (unreported), Maxey, D. J. [DC] 14, 15 
 
 U. S., Elgin, J. & E. Ry. Co. v. (168 Fed., 1), Baker, C. J. [CCA-7] 10, 
 
 30, 39, 40, 42, 44, 50, 179, 185, 187, 209, 217 
 U. S. V. Erie R. Co. (166 Fed., 352), Lanning, D. J. [DC]. 11, 24, 30, 37, 40, 42, 180, 195 
 
 U. S. V. Erie R. Co. (212 Fed., 853), Buffington, C. J. [CCA-3] 60, 67 
 
 U. S., Erie R. Co. v. (197 Fed., 287), Buffington, C. J. [CCA-3]. 7, 39, 49, 50, 56, 59, 62 
 U. S., Galveston, H. & S. A. Ry. Co. v. (183 Fed., 579), Per Curiam [CCA-5]. . 12 
 
 U. S., Galveston, H. & S. A. Ry. Co. v. (199 Fed., 891), Pardee, C. J. [CCA-5]. . 12, 
 
 27, 94, 97, 98, 100, 101 
 U. S. V. Geddes (131 Fed., 452), Richards, C. J. [CCA-6] [affirming DC, 180 
 
 Fed., 480] 22,29,33,180 
 
 V. S. V. Geddes (180 Fed., 480), Thompson, D. J. [DC] [affirmed by CCA-6, 
 
 131 Fed., 452] 22,33 
 
 U. S. V. Grand Trunk Ry. Co. of Canada (203 Fed., 775), Hazel, D. J. [DC]. . 16, 
 
 38, 54, 62 
 U. S. V. Great Northern Ry. Co. (145 Fed., 438), Whitson, D. J. [DC]. . 43, 48, 185, 190 
 U. S. V. Great Northern Ry. Co. (150 Fed., 229), Whitson, D. J. [DC]... 11, 14,21, 80 
 U. S. V. Illinois Central R. Co. (156 Fed., 182), Evans, D. J. [DC] [reversed 
 
 by CCA-6, 170 Fed., 542] 12, 14, 15, 17, 20, 76, 81, 196, 197 
 
SAFETY APPLIANCE ACTS. xin 
 
 Page. 
 U. S. V. Illinois Central R. Co. (170 Fed., 542), Severens, C. J. [CCA-0] 
 
 [reversing DC, 156 Fed., 182, certiorari denied, 214 U. S., 520] 12, 
 
 14, 19, 20, 21, 76, 21T 
 
 U. S. V. Illinois Central R. Co. (166 Fed., 997), Wright, D. J. [DC] 40, 201 
 
 U. S. V. Illinois Central R. Co. (177 Fed., 801), Knappen, C. J. [CCA-6] 12, 
 
 71, 76, 78, 192, 214 
 
 U. S. V. Indiana Harbor R. Co. (157 Fed., 565), Landis, D. J. [DC] 14, 76 
 
 U. S. V. International & G. N. R. Co. (174 Fed., 638), Shelby, C. J. [CCA-5]. . 36, 
 
 39, 44, 48 
 U. S. V. Lehigh Valley R. Co. (unreported), McPherson, D. J. [DC]. ... 7, 15, 20, 69, 201 
 
 U. S. V. Lehigh Valley R. Co. (162 Fed., 410), McPherson, D. J. [DC] 11, 97 
 
 U. S. V. Louisville & N. R. Co. (156 Fed., 193), Evans, D. J. [DC] [affirmed 
 
 by CCA-6, 167 Fed., 306] 95 
 
 U. S., Louisville & N. R. Co. v. (186 Fed., 280), Severens, C. J. [CCA-6].... 30, 
 
 37, 40, 207, 208, 214 
 
 U. S. V. LouisviUe & N. R. Co. (156 Fed., 195), Evans, D. J. [DC] 96 
 
 U. S. V. Louisville & N. R. Co. (167 Fed., 306), Severens, C. J. [CCA-6] 
 
 [affirming DC, 156 Fed., 193] 21 
 
 U. S. V. Louisville & N. R. Co. (162 Fed., 185), Toulmin, D. J. [DC] 13, 
 
 14, 19, 44, 69, 71, 75, 201 
 U. S. V. MontpeUer & W. R. R. Co. (175 Fed., 874), Martin, D. J. [DC]. . 71, 82, 201, 217 
 U. S. V. Nevada County N. G. R. Co. (167 Fed., 695), De Haven, D. J. [DC] . . 68. 
 
 69, 74, 75, 201 
 U. S. V. New York Central & H. R. R. Co. (205 Fed., 428), Hazel, D. J. [DC]. . . 62 
 
 U. S. V. Norfolk & W. Ry. Co. (184 Fed., 99), McDoweU, D. J. [DC] 47, 85 
 
 U. S., Norfolk & W. Ry. Co. v. (177 Fed., 623), Dayton, D. J. [CCA-43 11, 
 
 18, 27, 37, 40, 47, 73, 81, 82, 205, 206, 207, 217 
 U. S., Norfolk & W. R. Co. v. (191 Fed., 302), Pritchard, C. J. [CCA-4] . . 12, 203, 210, 216 
 
 U. S. V. Northern Pac. Ry. Co. (unreported), Cushman, D. J. [DC] 12, 
 
 16, 20, 26, 42, 46, 62, 69, 72, 73, 83, 90, 91, 92, 99, 100, 195, 202 
 U. S. V. Northern Pacific Terminal Co. (144 Fed., 861), Wolverton, D. J. 
 
 [DO] 32,36,43,44,75 
 
 U. S. V. Oregon Short Line R. Co. (180 Fed., 483), Dietrich, D. J. [DC] 7, 13 
 
 U. S. V. Pacific Coast Ry. Co. (173 Fed., 453), Wellborn, D. J. [DC] [affirmed 
 
 by CCA-9, 173 Fed., 448] 184 
 
 U. S., Pacific Coast Ry. Co, v. (173 Fed., 448), Gilbert, C. J. [CCA-9] [affirm- 
 ing DC, 173 Fed., 453] 49,181 
 
 U. S. V. Pennsylvania R. Co. (unreported), McPherson, D. J. [DC] 7, 
 
 13, 15, 20, 26, 27, 69, 75, 81, 201 
 
 U. S. V. Pennsylvania R. Co. (unreported), Orr, D. J. [DC] 10, 12, 69 
 
 TJ. S. V. Pennsylvania R. Co. (162 Fed., 408), McPherson, D. J. [DC] 11 
 
 IT. S. V. Pere Marquette R. Co. (211 Fed., 220), Sessions, D. J. [DC] 12, 
 
 16, 27, 39, 51, 55, 193 
 U. S. v. Philadelphia & R. Ry. Co. (unreported), McPherson, D. J. [DC]. 13, 69, 75, 201 
 U. S. V. Philadelphia & R. Ry. Co. (162 Fed., 403), McPherson, D. J. [DC]. . 11 
 
 U. S. V. Philadelphia & R. Ry. Co. (162 Fed., 405), McPherson, D. J. [DC]. . 11, 97 
 U. S. V. Philadelphia & R. Ry. Co. (160 Fed., 696), McPherson, D. J. [DC]. . 7, 
 
 13,69,75,81,201 
 
 U. S., Philadelphia & R. Ry. Co. v. (191 Fed., 1), Gray, C. J. [CCA-3] 16, 34 
 
 U. S. V. Pittsburgh, C. C. & St. L. Ry. Co. (143 Fed., 360), Thompson, D. J. 
 
 [DC] 52 
 
 U. S. V. Rio Grande Western Ry. Co. (174 Fed., 399), Sanborn, C. J. [CCA-8]. . 75, 9S 
 
XIV TABLES OF CASES. 
 
 Page. 
 
 U. S. V. St. Louis, I. M. & S. Ry. Co. (154 Fed., 516), McCall, D J. [DC] 37, 
 
 43, 44, 73, 95, 97 
 U. S. V. St. Louis S. W. Ry. Co. of Texas(184 Fed., 28), Shelby, C. J. [CCA-5].. 7, 
 
 20, 21, 26, 38, 46, 119, 193 
 
 U S., St. Louis S. W. Ry. Co. v. (183 Fed., 770), Per Curiam [CCA-5] 20, 25, 214 
 
 U. S. V. Southern Pacific Co. (unreported), Farrington, D. J. [DC] 12, 
 
 16, 20, 39, 46, 47, 48, 52, 64, 69, 75, 76, 97, 179, 201, 202, 205 
 
 U. S. V. Southern Pacific Co. (154 Fed., 897), Wolverton, D. J. [DC] 11, 
 
 13,14,15,63,94,97 
 
 U. S. V. Southern Pacific Co. (167 Fed., 699), De Haven, D. J. [DC] 11, 
 
 13, 14, 17, 27, 39, 46, 62, 63, 69, 73, 77, 94, 96, 97, 201, 203, 206 
 
 U. S. V. Southern Pacific Co. (169 Fed., 407), Adams, C. J. [CCA-8] 11, 
 
 13, 15, 19, 39, 45, 92, 93 
 
 U. S. V. Southern Ry. Co. (135 Fed., 122), Humphrey, D. J. [DC] 7, 
 
 13, 21, 26, 75, 192, 196 
 U. S. V. Southern Ry. Co. (164 Fed., 347), Hundley, D. J. [DC] [affirmed by 
 
 SO, 222 U. S., 20] 10,24,30,42,49,187,190,191 
 
 U. S., Southern Ry. Co. v. (222 U. S., 20), Van Devanter, Justice [SC] 
 
 [affirming DC, 164 Fed., 347] 8,9,27,34,41,50,58,129,180,185,190,193 
 
 U. S. V. Southern Ry. Co. (170 Fed., 1014), Boyd, D. J. [DC] 7, 
 
 11, 13, 20, 37, 40, 44, 46, 47, 69, 75, 192, 201 , 202 
 
 U. S. V. Spokane & I. E. R. Co. [unreported], Rudkin, D. J. [DC] 209 
 
 TJ. S., Spokane & I. E. R. Co. v. (210 Fed., 243), Ross, C. J. [CCA-9] [affirming 
 
 DC, 206 Fed. , 988] 33, 209 
 
 U. S. V. Spokane & I. E. R. Co. (206 Fed., 988), Rudkin, D. J. [DC] [affirmed 
 
 by CCA-9, 210 Fed., 243] 34,37 
 
 U. S. V. Terminal R. Ass'n. of St. L. (unreported). Dyer, D. J. [DC] 20, 81 
 
 U. S. V. Trinity & B. V. Ry. Co. (211 Fed., 448), Call, D. J. [CCA-5]. 12, 14, 98, 212, 215 
 U. S. V. Union Stock Yards Co. of Omaha (161 Fed., 919), Munger, D. J. 
 
 [DC] [aflarmed by CCA-8, 169 Fed., 404] 29, 30 
 
 U. S., Union Stock Yards Co. of Omaha v. (169 Fed., 404), Van Devanter, 
 
 C.J. [CCA-8] [affirming DC, 161 Fed., 919] 29,50 
 
 U. S. V. Wabash R. Co. (unreported), Humphrey, D. J. [DC] [affirmed by 
 
 CCA-7, 168 Fed., 1] 69,71,202,205 
 
 U. S., Wabash R. Co. v. (168 Fed., 1), Baker, C. J. [CCA-7] [affirming DC, 
 
 unreported] 10,30,39,40,42,44,50,179,185,187,209,217 
 
 U. S. V. Wabagh R. Co. (unreported), Wright, D. J. [DC] [affirmed by 
 
 CCA-7, 172 Fed., 864, as to 3 counts and reversed as to 1] 13, 179 
 
 U. S. V, Wabash R. Co. (172 Fed., 864), Grosscup, C. J. [CCA-7] [aflfirming 
 
 DC, unreported] 13,18,19,46,79,87 
 
 U. S. V. Wabash-Pittsburgh Terminal Ry. Co. (unreported), Orr, D. J. [DC]. . 84 
 
 U. S. V. Western & A. R. Co. (184 Fed., 336), Newman, D. J. [DC]. . 37, 40, 49, 52, 181 
 
 U. S. V. Wheeling & L. E. R. Co. (167 Fed., 198), Tayler, D. J. [DC] 10, 
 
 11, 13, 23, 27, 36, 37, 43, 44, 191 
 
 Wabash R. Co. v, U. S. (168 Fed., 1), Baker, C. J. [CCA-7] [affirming DC, 
 
 unreported] 10, 30, 39, 40, 42, 44, 50, 179, 185, 187, 209, 217 
 
 Wabash R. Co. v. U. S. (172 Fed., 864), Grosscup, C. J. [CCA-7] [affirming 
 
 DC, unreported] 13, 18, 19, 46, 79, 87 
 
 Wabash R. Co., U. S. v. (unreported), Wright, D. J. [DC] [affirmed by CCA~7, 
 
 172 Fed., 864, as to 3 counts and reversed as to 1] 179 
 
 Wabash R. Co., U. S. v. (unreported), Humphrev, D. J. [DC] [affirmed by 
 
 CCA-7, 168 Fed., 1] ' 69, 71, 202, 205 
 
SAFETY APPLIANCE ACTS. xv 
 
 Page. 
 Wabash- Pittsbiirgh Terminal Ry. Co., U. S. v. (unreported), Orr, D. J. 
 
 [DC] 84 
 
 Western & A. R. Co., U. S. v. (184 Fed., 336), Newman, D. J. [DC]. . 37, 40, 49, 52, 181 
 
 Wheeling & L. E. R. Co., U. S. v. (167 Fed., 198), Tayler, D. J. [DC] 10, 
 
 11, 13, 23, 27, 36, 37, 43, 44, 191 
 
 B.— Actions for Personal Injury. 
 
 Allen, Southern Pacific Co. v. (106 S. W., 441), Neill, J. [Texas] 223 
 
 Allen V. Tuscarora Valley R. Co. (78 Atl., 34) Mestrezat, J. [Pennsylvania]. . 217, 
 
 222, 232 
 American R. Co. of Porto Rico v. Didrickeen (227 U. S., 145), Lurton, Justice 
 
 [SC] 64 
 
 Arrighi, Denver & R. G. R. Co. v. (129 Fed., 347), Hook, C. J. [CCA-8] 222, 229 
 
 Atlantic Coast Line R. Co. v. Whitney (61 So., 179), Hocker, J. [Florida]. . 12, 222, 233 
 
 Baker, Cleveland, C. C. & St. L. Ry. Co. v. (91 Fe4., 224), Woods, C. J. 
 [CCA-7] 223 
 
 Baltimore & N. Y. Ry. Co., Donegan v. (165 Fed., 869), Noyes, C. J. [CCA-2]. 11, 72, 230 
 Barker v. Kansas City, M. & O. Ry. Co. (129 Pac., 1151), West, J. [Kansas]. . . 184 
 
 Benson, Lake Shore & M. S. Ry. Co. v. (97 N. E., 417) Donahue, J. [Ohio]. 7, 47, 193 
 
 Brady, Union Pacific R. Co. v. (161 Fed., 719), Hook, C. J. [CCA-8] 73, 74, 229 
 
 Bresky v. Minneapolis & St. L. Ry. Co. (132 N. W., 337), Bunn, J. [Minne- 
 sota] '. 37, 183 
 
 Briggs V, Chicago & N. W. Ry. Co. (125 Fed., 745), Thayer, C. J. [CCA-8]. . . 228 
 
 Brinkmeier v. Missouri Pacific Ry. Co. (105 Pac., 221), Mason, J. [Kansas] 
 
 [afl5rming93Pac., 621; affirmed in 224 U. S., 268] 8,12,42 
 
 Brinkmeier v. Missouri Pacific Ry. Co. (224 XJ. S., 268), Van Devanter, Jus- 
 tice [SC] [affirming 105 Pac . , 221] 42 
 
 Brinkmeier, Missouri Pacific Ry. Co. v. (93 Pac., 621), Graves, J. [Kansas] 
 
 [reversing 77 Pac., 586; affirmed in 105 Pac., 221] 12, 42, 193, 231 
 
 Bromberg, Mobile, J. & K. C. R. Co. v. (37 So., 395), Dowdell, J. [Alabama]. . 47, 52 
 
 Brooks V. Southern Pacific Co. (207 U. S., 463), White, Justice [SC] 116 
 
 Brown, Chicago, R. I. & P. Ry. Co. v. (185 Fed., 80), Grosscup, C. J. [CCA-7] 
 
 [aflarmed in 229 U. S., 317] 10, 73, 222, 229, 230, 233 
 
 Brown, Chicago, R. I. & P. Ry. Co. v. (229 U. S., 317), McKenna, Justice 
 
 [SC] [affirming 185 Fed ., 80] 71, 229 
 
 Buffalo R. & P. Ry. Co., Schlemmer v. (205 U. S., 1), Holmes, Justice [SC] 
 
 [1st appeal; 207 Pa. St., 198, reversed] 27, 40, 46, 47, 193, 211, 218, 223, 229 
 
 Buffalo R. & P. Ry. Co., Schlemmer v. (220 U. S., 590), Day, Justice [SC] 
 
 [2d appeal; 222 Pa. St., 470, affirmed] 221,223,228 
 
 Burho V. Minneapolis & St. L. Ry. Co. (141 N. W., 300), Holt, J. [Minnesota] 12, 
 
 42, 70, 74, 232 
 Burlington, C. R. & N. Ry. Co., Gilbert v. (128 Fed., 529), Sanborn, C. J. 
 [CCA-8] 17,73,74,229 
 
 Campbell, Rio Grande Southern R. Co. v. (96 Pac., 986) Gabbert, J. [Colo- 
 rado] 49 
 
 Campbell v. Spokane & I. E. R. Co. (188 Fed., 516), Rudkin, D. J. [CC]. ... 39, 44, 226 
 CaroUna & N. W. R. Co., Montgomery v. (80 S. E., 83) Clark, Ch. J. [North 
 
 Carolina] 12, 68, 71, 75, 80, 222 
 
 Carson v. Southern Ry. Co. (46 S. E., 525), Pope, C. J. [South Carolina] 
 
 [affirmed in 194 U. S., 136] 12 
 
XVI TABLES OF CASES. 
 
 Page. 
 
 Carson, Southern Ry. Co. v. (194 U. S., 136), Fuller, Chief Justice [SCJ [affirm- 
 ing 46 S. E., 525] 226 
 
 Central of Georgia Ry. Co., Snead v. (151 Fed., 608), Speer, D. J. [CC] 43, 48 
 
 Charleston & W. C. Ry. Co., Lyon v. (56 S. E., 18), Woods, J. [South CarolinaJ . 65 
 
 Chesapeake & 0. Ry. Co. et al., Nichols v. (105 S. W. 481), Barker, J. [Ken- 
 tucky] 216 
 
 Chesapeake & O. Ry. Co., Nichols v, (195 Fed., 913), Denison, C. J. [CCA-6]. 12, 
 
 71,72,222,229,230 
 
 Chicago & 0. R. R. Co., Devine v. (102 N. E., 803), Vickers, J. [Illinois].. 30, 
 
 35,42,49,52,230,231 
 
 Chicago & N. W. Ry. Co., Briggs v. (125 Fed., 745), Thayer, C. J. [CCA-8] . . 228 
 
 Chicago Great Western Ry. Co., Dodge v. (146 N. W., 14), Withrow, J. [Iowa] . 231 
 
 Chicago Great Western Ry. Co., Johnston v. (164 S. W., 260), Johnson, J. 
 
 [Missouri] 17, 37, 42, 46, 73, 182, 184, 229, 230 
 
 Chicago Junction Ry. Co. v. King (169 Fed., 372), Baker, C. J. [CCA-7] 
 
 [affirmedin222U. S., 222] 10,13,15,16,39,92,223 
 
 Chicago Junction Ry. Co. v. King (222 U. S., 222), White, Chief Justice [SC] 
 [affirming 169 Fed., 372] 10 
 
 Chicago, M. & St. P. Ry. Co., Voelker v. (116 Fed., 867), Shiras, D. J. [CC] 
 
 [reversed in 129 Fed., 522] 7,35,44,76,224,227,231 
 
 Chicago, M. & St. P. Ry. Co. v. Voelker (129 Fed., 522), Van Devanter [CCA-8] 
 
 [reversing 116 Fed., 867] 68,74,76,181,194,224,225 
 
 Chicago, R. I. & P. Ry. Co. v. Brown (185 Fed., 80), Grosscup, C. J. [CCA-7] 
 [affirmed in 229 U. S., 317] 10,73,222,229,230,233 
 
 Chicago, R. I. & P. Ry. Co. v. Brown (229 U. S., 317), McKenna, Justice [SC] 
 [affirming 185 Fed., 80] 71, 229 
 
 Chicago, R. I. & P. Ry. Co., Steams v. (148 N. W., 128), Deemer, J. [Iowa]. 12, 
 
 27,42,57,232 
 
 Chicago, R. I. & P. Ry. Co., Dawson v. (114 Fed., 870), Thayer, C. J. [CCA-8]. 83 
 
 Choctaw, O. & S. R. Co., Suttle v. (144 Fed., 668), Adams, C. J. [CCA-8]. 47, 73, 74, 229 
 
 Cleveland, C, C. & St. L. Ry. Co. v. Baker (91 Fed., 224), Woods, C. J. 
 [CCA-7] 22S 
 
 Coley V. North Carolina Ry. Co. (57 L. R. A., 817), Furches, J. [North Carolina] 222 
 
 Conarty, St. Louis & S. F. R. Co. v. (155 S. W., 93), McCuUoch, Ch. J. 
 [Arkansas] 12, 62 
 
 Crawford v. New York, C. & H. R. R. Co. (10 Am. Neg., 166), Dickey, J. 
 [New York] 26, 51 
 
 Crockett, Southern Ry. Co. v. (234 U. S., 725), Pitney, Justice [SC] 8, 
 
 42, 46, 47, 79, 87, 88, 192, 193 
 
 Dailey v. Southern Ry. Co. (unreported), Sanford, D. J. [CC] 222, 229, 231 
 
 Dawson v. Chicago, R. I. & P. Ry. Co. (114 Fed., 870), Thayer, C. J. [CCA-8]. 83 
 
 Delk, St. Louis & S. F. R. Co. v. (158 Fed., 931), Severens, C. J. [CCA-6] 
 
 [reversed in 220 U. S., 580] 12, 14, 76, 92, 180, 222 
 
 Delk V. St. Louis & S. F. R. Co. (220 U. S., 580), Harlan, Justice [SC] 
 
 [reversing 158 Fed., 931] 11, 13, 51, 112, 114 
 
 Denver & R. G. R. Co. v. Arrighi (129 Fed., 347), Hook, C. J. [CCA-8] 222, 229 
 
 Denver & R. G. R. Co., Felt v. (110 Pac, 215), Per Curiam [Colorado]. 39, 42, 44, 181 
 Denver & R. G. R. Co. v. Gannon (90 Pac, 853), Goddard, J. [Colorado]. ... 222 
 
 Devine v. Chicago & C. R. R. Co. (102 N. E., 803), Vickers, J. [Illinois]. ... 30, 
 
 35, 42, 49, 52, 230, 231 
 Devine v. Illinois Central R. Co. (156 111. App., 369), Freeman, J. [Illinois], 
 
 27, 42, 44, 230 
 
SAFETY APPLIANCE ACTS. xvn 
 
 Didricksen, American R. Co. of Porto Rico v. (227 U. S., 145), Lurton, Jus- 
 tice [SC] 64 
 
 Dodge V. Chicago Great Western Ry. Co. (146 N. W., 14), Withrow, J. [Iowa]. 231 
 
 Donegan v. Baltimore & N. Y. Ry. Co. (165 Fed., 869), Noyes, C. J. 
 
 [CCA-2] 11,72,230 
 
 Elder, International & Great Northern Ry. Co. v. (99 S. W., 856), Conner, 
 Ch. J. [Texas] 49 
 
 Employer's Liability Cases (207 U. S., 463), White, Justice [SC] 116 
 
 Erie R. Co., Rosney i;. (135 Fed., 311), Coxe, C. J. [CCA-2] 52,62 
 
 Erie R. Co. V. Russell (183 Fed., 722), Noyes, C. J. [CCA-2] 37, 52, 181, 230 
 
 Felt V. Denver & R. G. R. Co. (110 Pac, 215), Per Curiam [Colorado], [Col- 
 orado] 39,42,44,181 
 
 Flippo, Kansas City, M. & B. R. Co. v. (35 So., 457), Dowdell, J. [Alabama] 
 
 80, 219, 229 
 
 Galveston, H. & S. A. Ry. Co. v. Kurtz (147 S. W., 658), James, Ch. J. [Texas]. 12, 
 
 17,216,222,228 
 Gannon, Denver & R. G. R. Co. v. (90 Pac, 853), Goddard, J. [Colorado].. . 222 
 
 Gilbert v. Burlington, C. R. &' N. Ry. Co. (128 Fed., 529), Sanborn, C. J. 
 
 [CCA-8] 17, 73, 74, 229 
 
 Gordon, Toledo, St. L. & W. R. Co. v. (177 Fed., 152), Anderson, D. J. 
 
 [CCA-7] 229 
 
 Grand Trunk Western Ry. Co. v. Lindsay (201 Fed., 836), Per Curiam [CCA-7] 
 
 affirmed in 233 U. S., 42] 210,216,222,223,228,229,233 
 
 Grand Trunk Western Ry. Co. v. Lindsay (233 U. S., 42), White, Chief 
 
 Justice [SC] [affirming 201 Fed., 836] 52, 232 
 
 Gray v, Louisville & N. R. Co. (197 Fed., 874), Sanford, D. J. [CC]. . 7, 23, 35, 52, 193, 197 
 Great Northern Ry. Co., Johnson v. (178 Fed., 643) Hunger, D. J. [CCA-8]. . 11, 
 
 26, 44, 52, 74, 229, 230 
 Great Northern Ry. Co., Kelley v. (152 Fed., 211), Morris, D. J. [CC] 10 
 
 Hazeh^g, Norfolk & W. Ry. Co. v. (170 Fed., 551) Severens, 0. J. [CCA-6] 
 
 [1st appeal; CC reversed] 12, 14, 73, 224, 229 
 
 Hazehigg, Norfolk & W. Ry. Co. v. (184 Fed., 828), Knappen, C. J. [CCA-6] 
 
 [2d appeal ; CC affirmed] 72, 73, 74, 222, 229, 230, 233 
 
 Henry, Nashville, C. & St. L. Ry. Co. v, (164 S. W., 310) Clay, C. [Ken- 
 tucky] 12,14,52,71,205,226 
 
 Hohenleitner v. Southern Pacific Co. (177 Fed,, 796), Bean, D.J. [CC].37, 39, 44, 71, 77 
 
 Hood, Mallott v. (66 N. E., 247) Boggs, J. [Illinois] 44 
 
 Howard v. Illinois Cent. R. Co. (207 U. S., 463) White, Justice [SC] 116 
 
 Illinois Central R. Co., Devine v. (156 111. App., 369) Freeman, J. [Illinois]. 27, 
 
 42, 44, 230 
 
 Illinois Central R. Co., Howard v. (207 U. S., 463) White, Justice [SC] 116 
 
 Illinois Central R. Co., Willet v. (142 N. W., 883), Taylor, Com'r. [Minnesota]. 12, 71, 78 
 International & Great Northern Ry. Co. v. Elder (99 S. W., 856), Conner, Ch. J. 
 [Texas] 49 
 
 Johnson v. Great Northern Ry. Co. (178 Fed., 643), Hunger, D. J. [CCA-8].. 11,26, 
 
 44,52,74,229,230 
 Johnson v. Southern Pacific Co. (117 Fed., 462), Sanborn, C. J. [CCA-8] 
 
 [Reversed in 196 U. S., 1] 7, 8, 12, 44, 46, 48, 75, 192, 193, 194, 197, 223 
 
 50611—15 II 
 
xvni TABLES OF CASES. 
 
 Page. 
 Johnson v. Southern Pacific Co. (196 U. S., 1), Fuller, Chief Justice, [SO] 
 
 [reversing 117 Fed., 462] 7, 9, 19, 21, 27, 
 
 39, 42, 44, 46, 47, 48, 49, 67, 68, 71, 75, 82, 108, 182, 192, 193, 194, 196, 197 
 Johnston v. Chicago Great Western Ry. Co. (164 S. W., 260), Johnson, J. 
 
 [Missouri] 17,37,42,46,73,182,184,229,230 
 
 Kansas City, M. & O. Ry. Co., Barker v. (129 Pac, 1151) West, J. [Kansaa]. . 184 
 Kansas City, M. & B. R. Co. v. Flippo (35 So., 457), Dowdell, J. [Alabama]. 80, 219, 229 
 Kansas City, M. & O. Ry. Co., Thornbro v. (139 Pac., 410) Benson, J. [Kan- 
 sas] 37, 42, 230, 232 
 
 Kelley v. Great Northern Ry. Co. (152 Fed., 211), Morris, D. J. [CC] 10 
 
 King, Chicago Junction Ry. Co. v. (169 Fed., 372), Baker, C. J. [CCA-7] 
 
 [affirmed in 222 U. S., 222] 10,13,15,16,39,92,223 
 
 King, Chicago Junction Ry. Co. v. (222 U. S., 222), White, Chief Justice 
 
 [SC] [affirming 169 Fed., 372] 10 
 
 Kurtz, Galveston, H. & S. A. Ry. Co. v. (147 S. W., 658) James, Ch. J. 
 [Texas] 12,17,216,222,228 
 
 Lake Shore & M. S. Ry. Co. v. Benson (97 N. E., 417) Donahue, J. [Ohio]. . . 7, 47, 193 
 Lake Shore & M. S. Ry. Co., Luken v. (94 N. E., 175) Farmer, J. [IlUnois]. 12, 
 
 15,42,44,49,189,222 
 Lake Shore & M. S. Ry. Co., Luken v. (154 111. App., 550) Holdom, P. J. 
 
 [Illinois] 7,12,80,193,222 
 
 La Mere v. Ry. Trans. Co. of Minneapolis (145 N. W., 1068) Dibell, Com'r. 
 
 [Minnesota] 8,39,56,193,222.226,230 
 
 Larabee v. New York, N. H. & H. R. Co. (66 N. E., 1032) Holmes, Ch. J. 
 
 [Massachusetts] 47 
 
 Lindsay, Grand Trunk Western Ry. Co. v. (201 Fed., 836) Per Curiam [CCA-7] 
 
 [affirmed in 233 U. S., 42] 210,216,222,223,228,229,233 
 
 Lindsay, Grand Trunk Western Ry. Co. v. (233 U. S., 42), White, Chief 
 
 Justice [SC] [affirming 201 Fed., 836] 52, 232 
 
 Louisville & N. R. Co., Gray v. (197 Fed., 874), Sanford, D. J. [CC] 7, 23, 35, 52, 193, 197 
 Luken v. Lake Shore & M. S. Ry. Co. (94 N. E., 175), Farmer, J. [Illinois]. . 12, 
 
 15, 42, 44, 49, 189, 222 
 Luken v. Lake Shore & M. S. Ry. Co: (164 111. App., 550) Holdom, P. J. 
 
 [IlUnois] , 7,12,80,193,222 
 
 Lyon V. Charleston & W. C. Ry. Co. (56 S. E., 18), Woods, J. [South Carolina]. . 65 
 
 Mallott V. Hood (66 N. E., 247), Boggs, J. [Illinois] 44 
 
 Minneapolis & St. L. Ry. Co., Bresky v. (132 N. W., 337), Bunn, J. [Minne- 
 sota] 37,183 
 
 Minneapolis & St. L. Ry. Co., Burho v. (141 N. W., 300), Holt, J. [Minne- 
 sota] 12,42,70,74,232 
 
 Minneapolis, St. P. & S. S. M. Ry. Co., Popplar v. (141 N. W., 798), Hallam, J. 
 [Minnesota] 12,42,52,71,73,229,232 
 
 Missouri Pacific Ry. Co. v. Brinkmeier (93 Pac, 621), Graves, J. [Kansas] 
 [reversing 77 Pac, 586; affirmed in 105 Pac, 221] 12, 42, 193, 231 
 
 Missouri Pacific Ry. Co., Brinkmeier v. (105 Pac, 221) Mason, J. [Kansas] 
 [affirming 93 Pac, 621; affirmed in 224 U. S., 268] 8,12,42 
 
 Missouri Pacific Ry. Co., Brinkmeier v. (224 U. S., 268) Van Devanter, Justice 
 [SC] [aflirming 105 Pac, 221] 42 
 
 Mobile, J. & K. 0. R. Co. v. Bromberg (37 So., 395) Dowdell, J. [Alabama]. . 47, 52 
 
SAFETY APPLIANCE ACTS. xix 
 
 Pag«. 
 Montgomery v. ( arolina & N. W. R. Co. (80 S. E., 83) Clark, Ch. J. [North 
 
 Carolina]..... 12,68,71,75,80,222 
 
 Morris v. St. Louis S. W. Ry. Co. of Tex. (158 S. W., 1055) Willson, C. J. 
 
 [Texas] 76,215 
 
 Myrtle v. Nevada C. & 0. Ry. Co. (137 Fed., 193) Hawley, D. J. [CC] 216 
 
 Nashville, C. & St. L. Ry. Co. v. Henry (164 S. W., 310) Clay, C. [Ken- 
 tucky] 12,14,52,71,205,226 
 
 Neal, St. Louis, I. M. & S. Ry. Co. v. (78 S. W., 220) Riddick, J. [Arkansas] 
 [affirmed in 98 S. W., 958] 12,87,222 
 
 Neal, St. Loub, I. M. & S. Ry. Co. v. (98S. W.,958),Hill, Ch. J. [Arkansas] 
 [affirming 78 S. W., 220; reversed in 210 U. S., 281] 216 
 
 Nevada, C. & 0. Ry. Co., Myrtle v. (137 Fed., 193) Hawley, D. J. [CC] 216 
 
 New York, Central & H. R. R. Co., Crawford v. (10 Am. Neg., 166), Dickey, 
 J. [New York] 26,61 
 
 New York Central & H. R. R. Co., Siegel v. (178 Fed., 873) Archbald, D. J. 
 [CC] 12, 16,40,42,44,52,93,100,182,197 
 
 New York, N. H. & H. R. Co., Larabee v. (66 N. E., 10,32) Holmes, Ch. J. 
 [Massachusetts] 47 
 
 Nichols V. Chesapeake & 0. Ry. Co. et al. (105 S. W., 481), Barker, J. [Ken- 
 tucky] 216 
 
 Nichols V. Chesapeake & O. Ry. Co. (195 Fed., 913), Denison, C. J. [CCA-6]. . . 12, 
 
 71,72,222,229,230 
 
 Norfolk & W. Ry. Co. v. Hazelrigg (170 Fed., 651), Severens, 0. J. [CCA-6] 
 [1st appeal; CC reversed] 12,14,73,224,229 
 
 Norfolk & W. Ry. Co. v. Hazelrigg (184 Fed., 828), Knappen, C. J. [CCA-6] 
 [2d appeal; CC affirmed] 72,73,74,222,229,230,233 
 
 North Carolina Ry. Co., Coley v. (57 L. R. A., 817) Furches, Ch. J. [North 
 CaroUna] 222 
 
 Northern Pacific Ry. Co., Plummer v. (152 Fed., 206) Hanford, D. J. [CC]. 10, 11, 222 
 
 Pennell v. Philadelphia & R. Ry. Co. (203 Fed., 681) Buffington, C. J. 
 
 [CCA-3] [affirmed in 231 U. S., 675] 70 
 
 Pennell v. Philadelphia & R. Ry. Co. (231 U. S., 675), McKenna, Justice 
 
 [SC] [affirming 203 Fed., 681] 27,28,70,193,198 
 
 Philadelphia & R. Ry. Co., Pennell v. (203 Fed., 681) Buffington, C, J. 
 
 [CCA-3] [affirmed in 231 U. S., 675] 70 
 
 Philadelphia & R. Ry. Co., Pennell v. (231 U. S., 675) McKenna, Justice 
 
 [SC] [affirming 203 Fed., 681] 27,28,70,193,198 
 
 Philadelphia & R. Ry. Co., Winkler v. (53 Atl., 90) Lore, Ch. J. [Delaware] 
 
 [affirmed in 56 Atl., 112] 36,41,47,75,222,225,226,228,229,232 
 
 Philadelphia & R. Ry. Co. v. Winkler (56 Atl., 112) Boyce, J. [Delaware] 
 
 [affirming 53 Atl., 90] 10,12,47,71,75,225,226,228 
 
 Plummer v. Northern Pacific Ry. Co. (152 Fed., 206), Hanford, D. J. [CC]. . 10, 11, 222 
 Popplar V. Minneapolis, St. P. & S. S. M. Ry. Co. (141 N. W., 798), Hallam, J. 
 
 [Minnesota] 12,42,52,71,73,229,232 
 
 Quincy, O. & K. 0. Ry. Co., Shohoney v. (122 S. W., 1025), Valliant, J. [Mis- 
 souri] *. 30, 226 
 
 Ry. Trans. Co. of Minneapolis, La Mere v. (145 N. W., 1068), Dibell, Com*r. 
 
 [Minnesota] 8,39,56,193,222,226,230 
 
 Republic Iron & Steel Co. , Taggart v. (141 Fed. , 910), Richards, C. J. [CCA-6] 80 
 
XX TABLES OF CASES. 
 
 Pae«. 
 
 Rio Grande Southern R, Co. v. Campbell (96 Par., 986), Gabbert, J. [Colo- 
 rado] 49 
 
 Rosney v. Erie R. Co. (135 Fed., 311), Coxe, C. J. [CCA-2] 52, 62 
 
 Russell, Erie R. Co. v. (183 Fed., 722), Noyes, C. J. [CCA-2] 37,52,181,230 
 
 Russell, Wheeling Terminal Ry. Co. v. (209 Fed., 795), Rose, D. J. [CCA-4]. 42, 
 
 52, 183, 202 
 
 St. Louis& S. F. R. Co. v. Conarty (155 S.W., 93), McCiilloch, Ch. J. [Arkansas]. 12, 52 
 
 St. Louis & S. F. R. Co. v. Delk (158 Fed., 931), Severens, C. J. [CCA-6] 
 [reversed in 220 U. S., 580] 12, 14, 76, 92, 180, 222 
 
 St. Louis & S. F. R. Co., Delk v. (220 U. S., 580), Harlan, Justice [SC] [revers- 
 ing 158 Fed., 931] 11,13,51,112,114 
 
 St. Louis, I. M. & S. Ry. Co. v. York (123 S. W., 376), Frauenthal, J. [Arkan- 
 saa] 73,229,230,232 
 
 St. Louis, I. M. & S. Ry. Co. v. Neal (78 S. W., 220), Riddick, J. [Arkansas] 
 
 [affirmed in 98 S. W. , 958] 12, 87, 222 
 
 St. Louis, I. M. & S. Ry. Co. v. Neal (98 S. W., 958), Hill, Ch. J. [Arkansas] • 
 [affirming 78 S. W., 220; resversed in 210 U. S., 281] 216 
 
 St. Louis, I. M. & S. Ry. Co. v. Taylor (210 U. S., 281), Moody, Justice [SC] 
 
 [Reversing 98 S. W., 958] 8, 10, 11, 12, 13, 17, 86, 87, 108, 112, 113, 114, 115, 195 
 
 St. Louis S. W. Ry. Co. of Tex., Morris v. (158 S. W., 1055), Willson, Ch. J. 
 
 [Texas] 76,215 
 
 Schlemmer v. Buffalo, R. & P. Ry. Co. (205 U. S., 1), Holmes, Justice [SC] 
 (1st appeal; 207 Pa. St., 198, reversed] 27, 40, 46, 47, 193, 211, 218, 223, 229 
 
 Schlemmer v. Buffalo, R. & P. Ry. Co. (220 U. S., 590), Day, Justice [SC] 
 [2d appeal; 222 Pa. St., 470, affirmed] 221, 223, 228 
 
 Sellers, Toledo, St. L. & W. R. Co. v. (184 Fed., 885), Grosscup, 0. J. [CCA-7]. 215 
 
 Shohoney v. Quincy, 0. & K, C. Ry. Co. (122 S. W., 1025), Valliant, J. [Mis- 
 souri] 30, 226 
 
 Siegel V. New York Central & H. R. R. Co. (178 Fed., 873), Archbald, D. J. 
 
 [CC] 12,16,40,42,44,52,93,100,182,197 
 
 Simmons, Southern Ry. Co. v. (55 S. E., 459), Keith, Pres. [Virginia] 68 
 
 Snead v. Central of Georgia Ry. Co. (151 Fed., 608), Speer, D. J. [Georgia]. . 43, 48 
 
 Snyder v. Southern Ry. Co. (unreported), Sanford, D. J. [CC] [reversed in 
 
 187 Fed., 492] 7,10,27,44,97,193,230 
 
 Snyder, Southern Ry. Co. i>. (187 Fed., 492), Knappen, C. J. [CCA-6] [Ist 
 
 appeal; CC reversed] 37,44,45,49,52,92,193 
 
 Snyder, Southern Ry. Co. v. (205 Fed., 868), Knappen, C. J. (CCA-6] [2d 
 
 appeal; DC affirmed] 39, 45, 52, 92, 222 
 
 Southern Pacific Co. v. Allen (106 S. W., 441), Neill, J. [Texas] 223 
 
 Southern Pacific Co., Brooks v. (207 U. S., 463), White, Justice [SC] 116 
 
 Southern Pacific Co., Hohenleitneri;. (177 Fed., 796), Bean, D..J. [CC]. 37, 39, 44, 71, 77 
 
 Southern Pacific Co., Johnson v. (117 Fed., 462), Sanborn, C. J. [CCA-8] 
 
 [reversed in 196 U. S., 1] 7, 8, 12, 44, 46, 48, 75, 192, 193, 194, 197, 223 
 
 Southern Pacific Co., Johnson v. (196 U. S., 1), Fuller, Chief Justice [SC] 
 
 [reversing 117 Fed., 462] 7,9,19,21,27, 
 
 39, 42, 44, 46, 47, 48, 49, 67, 68, 71, 75, 82, 108, 182, 192, 193, 194, 196, 197 
 
 Southern Ry. Co., Carson v. (46 S. E., 525), Pope, Ch. J. [South Carolina] 
 
 [affirmed in 194 U. S., 136] 12 
 
 Southern Ry. Co. v. Carson (194 U. S., 136), Fuller, Chief Justice [SC] [affirm- 
 ing 46 S. E., 525] 226 
 
 Southern Ry. Co. v. Crockett (234 U. S., 725), Pitney, Justice [SC] 8, 
 
 42, 46, 47, 79, 87, 88, 192, 193 
 
SAFETY APPLIANCE ACTS. xxi 
 
 Page. 
 
 Southern Ry. Co., Dailey v. (unreported), Sanford, D. J [CO] 222, 229, 231 
 
 Southern Ry. Co. v. Shnmons (55 S. E., 459), Keith, Pres. [Virginia] 68 
 
 Southern Ry. Co., Snyder v. (unreported), Sanford, D. J. [CC] [reversed in 
 
 187 Fed. 492] 7,10,27,44,97,193,230 
 
 Southern Ry. Co. v. Snyder (187 Fed., 492), Knappen, C. J. [CCA-6] [Ist 
 
 appeal; CC reversed] 37,44,45,49,52,92,193 
 
 Southern Ry. Co. v. Snyder (205 Fed., 868), Knappen, C. J. [CCA-6] [2d 
 
 appeal; DC affirmed] 39, 45, 52, 92, 222 
 
 Southern Ry. Co., Troxler v. (32 S. E., 550), Clark, J [North Carolina] 227 
 
 Spokane & I. E. R. Co., Campbell v. (188 Fed., 516), Rudkin, D. J. [DC]. . . . 39, 44, 226 
 Stearns v. Chicago, R. I. & P. Ry. Co. (148 N. W., 128), Deemer, J. [Iowa]. . 12, 
 
 27,42,57,232 
 Suttle V. Choctaw, O. & G. R. Co. (l44 Fed., 668), Adams, C. J. [CCA-8] . 47, 73, 74, 229 
 Swearingen, Texas & Pacific Ry. Co. v. (122 Fed., 193), McCormick, C. J. 
 
 [CCA-5] 222 
 
 Taggart v. Republic Iron & Steel Co. (141 Fed., 910), Richards, 0. J. [CCA-6]. 80 
 
 Taylor, St. Louis, I. M. & S. Ry. Co. v. (210 U. S., 281), Moody, Justice 
 
 [SC] [reversing 98 S. W., 958]. . . . 8, 10, 11, 12, 13, 17, 86, 87, 108, 112, 113, 114, 115, 195 
 Texas & Pacific Ry. Co. v. Swearingen (122 Fed., 193), McCormick, 0. J. 
 
 [CCA-5] 222 
 
 Thombro v. Kansas City, M. & 0. Ry. Co. (139 Pac., 410), Benson, J. [Kan- 
 sas] 37,42,230,232 
 
 Toledo, St. L. & W. R. Co. v. Gordon (177 Fed., 152), Anderson, D. J. [CCA-7]. 229 
 
 Toledo, St. L. & W. R. Co. v. Sellers (184 Fed., 885), Grosscup, 0. J. [CCA-7]. 215 
 
 Troxler v. Southern Ry. Co. (32 S. E., 550), Clark, J. [North Carolina] 227 
 
 Tuscarora Valley R. Co., Allen v. (78 Atl., 34) Mestrezat, J. [Pennsyl- 
 vania] 217,222,232 
 
 Union Pacific R. Co. v. Brady (161 Fed., 719), Hook, 0. J. [COA-8] 73, 74, 229 
 
 Union Pacific R. Co., Yost v. (149 S. W., 577) Blair, 0. [Miseouri] 74,232 
 
 Voelker v. Chicago, M. & St. P. Ry. Co. (116 Fed., 867), Shiras, D. J. [CC] 
 [reversed in 129 Fed., 522] 7,35,44,76,224,227,231 
 
 Voelker, Chicago, M. & St. P. Ry. Co. v. (129 Fed., 522), Van Devanter, 
 
 C. J. [CCA-8] [reversing 116 Fed., 867] 68, 
 
 74,76,181,194,224,225 
 
 Wheeling Terminal Ry. Co. v. Russell (209 Fed., 795), Rose, D. J. [CCA-4]. . 42, 
 
 52,183,202 
 
 Whitney, Atlantic Coast Line R. Co. v. (61 So., 179), Hooker, J. [Florida]. 12, 222, 233 
 
 Willett V. IlUnois Central R. Co. (142 N. W., 883), Taylor, Com'r. [Min- 
 nesota] - 12, 71, 78 
 
 Winkler v. Philadelphia & R. Ry. Co. (53 Atl., 90), Lore, Ch. J. [Delaware] 
 [aflarmed in 56 Atl., 112] 36, 41, 47, 75, 222, 225, 226, 228, 229, 232 
 
 Winkler, Philadelphia & R. Ry. Co. v. (56 Atl., 112), Boyce, J. [Delaware] 
 
 [affirming 53 Atl., 90] 10,12,47,71,75,225,226,228 
 
 York, St. Louis, I. M. & S. Ry. Co. v. (123 S. W., 376), Frauenthal, J. [Ar- 
 kansas] 12,73,229,230,232 
 
 Yost V. Union Pacific R. Co. (149 S. W., 577), Blair, C. [Missouri] 74,232 
 
xxn TABLES OF CASES. 
 
 II.— CASES UNDER THE FEDERAL HOURS OF SERVICE ACT, WITH 
 OTHER CASES IN WHICH THE ACT HAS BEEN CONSTRUED. 
 
 A. — Penal Actions. 
 
 Page. 
 Atchison, T. & S. F. Ry. Co., U. S. v. (177 Fed., 115), Landis, D. J. [DC] 
 
 [reversed in 177 Fed., 114] .^ 122, 131, 147, 150, 151 
 
 Atchison, T. & S. F. Ry. Co. v. U. S. (177 Fed., 114), Grosscup, 0. J. [CCA-7] 
 
 [affirmed in 220 U. S., 37, reversing 117 Fed., 115] 150, 151, 152 
 
 Atchison, T. & S. F. Ry. Co., U. S. v. (220 U. S., 37) Holmes, Justice [SC] 
 
 [177 Fed., 114, affirmed, 177 Fed., 115, reversed] 140, 141, 143, 144, 149, 151 
 
 Atchison, T. & S. F. Ry. Co., U. S. v. (212 Fed., 1000), Sawtelle, D. J. [DC]. . 101, 
 
 163, 165, 168, 170, 198 
 
 Atlantic Coast Line R. Co., U. S. v. (211 Fed., 897), Knapp, C. J. [CCA-4]. . 106, 
 
 116, 144, 147, 148, 150, 158, 193 
 
 Baltimore & 0. R. Co. v. Int. Com. Com. (221 U. S., 612), Hughes, Justice 
 
 [SC] 34,108,111,116,122,128,130,1.34,174 
 
 Boston & M. R. Co., U. S. v. (unreported), Aldrich, D. J. [DC] 119, 128, 171 
 
 Chicago, M. & P. S. Ry. Co., U. S. v. (195 Fed., 783), Hanford, D. J. [DC]. . 113, 
 
 125, 127, 175, 177, 194 
 Chicago, M. & P. S. Ry. Co., U. S. v. (197 Fed., 624), Rudkin, D. J. [DC]. . 106, 
 
 125, 132, 138, 139, 140, 141, 150, 170, 171, 181, 193 
 Chicago, M. & St. P. Ry. Co., U. S. v. (212 Fed., 574), Sanborn, D. J. [DC]. . 170 
 
 (Mcago, M. & St P. Ry. Co., State v. (117 N. W., 686), Dodge, J. [Wisconsin] . . 109, 
 
 116, 122, 129, 186, 188, 189, 19T 
 Chicago, R. I. & P. Ry. Co., U. S. v. (unreported). Van Valkenburgh, D. J. 
 
 CDC] 131,146,156 
 
 Cleveland, C. C. & St. L. Ry. Co., U. S. v. (unreported), HoUister, D. J. [DC]. . 109, 
 
 118,146,154 
 
 Delaware, L. & W. R. Co., U. S. v. (unreported), Hazel, D. J. pC] 106, 112, 162 
 
 Denver & R. G. R. Co., U. S. v. (197 Fed., 629), Pope, D. J. [DC] 125, 
 
 126,127,140,141,170,198 
 
 Erie R. Co., People of New York v. (91 N. E., 849), Hiscock, J. [New York], 
 [reversed in 233 U. S., 671] 107,189 
 
 Brie R. Co. v. New York (233 U. S., 671), McKenna, Justice [SC] [reversing 
 91N. E., 849] .- 187,189 
 
 Oalveston, H. & S. A. Ry. Co., U. S. v. (unreported), Foster, D. J. [DC]. 169, 170, 215 
 
 Grand Rapids & I. Ry. Co., U. S. v. (unreported). Sessions, D. J. [DC] 106, 149 
 
 Grand Trunk Ry. Co., U. S. v. (unreported), Aldrich, D. J. [DC] 131 
 
 Great Northern Ry. Co., U. S. v. (206 Fed., 838), Dietrich, D. J. [DC] 
 
 [affirmed in 211 Fed., 309] 106,120,132,134,135,136,137 
 
 Great Northern Ry. Co. v. U. S. (211 Fed., 309), Morrow, C. J. [CCA-9] [af- 
 firming 206 Fed., 838] 132,170 
 
 Great Northern Ry. Co., U. S. v. (unreported), Willard, D. J. [DC] [affirmed 
 by CCA-9; unreported] * 119, 136, 168, 216 
 
 Houston B. & T. Ry. Co., U. S. v. (205 Fed., 344), Foster, D. J. [CCA-5]. . . . 116, 
 
 124, 145, 146, 153, 158, 211 
 
HOURS OF SERVICE ACT. yyttt 
 
 Pago. 
 
 Illinois Central R. Co., U. S. v. (180 Fed., 630), Morris, D. J. fDC] 109, 
 
 125, 126, 127, 232 
 Int. Com. Com., Baltimore & O. R. Co. v. (221 U. S., 612), Hughes, Justice 
 [SC] 34,108,111,116,122,128,130,134,174 
 
 Kansas City Southern Ry. Co., U. S. v. (202 Fed., 828), Van Valkenburgh, 
 
 D. J. [CCA-3] 21, 106, 111, 114, 115, 116, 168, 169, 170, 172, 201, 211, 212, 213, 215 
 
 Kansas City Southern Ry. Co., U. S. v. (189 Fed., 471), Trieber, D. J. [DC]. . 106, 
 
 109, 116, 128, 160, 162, 163, 169, 170, 171, 211, 213, 215 
 
 Minneapolis, St. P. & S. S. M. Ry. Co., U. S. v. (unreported), Amidon, D. J. 
 
 [DC] 108,117,118,119,169,170 
 
 Missouri, K. & T. Ry. Co. of Texas v. U. S. (231 U. S., 112), Hohnes, Justice 
 
 [SC] 116,118,119,125,128,138,139,140,141,169,170 
 
 Missouri, K. & T. Ry. Co of Texas, U. S. v. (unreported), Russell, D. J. [DC] 
 
 [affirmed in 231 U. S., 112] 169,170,215 
 
 Missouri, K. & T. Ry. Co., U. S. v. (208 Fed., 957), Pollock, D. J. [DC].. 107, 
 
 143, 150, 153 
 Missouri, K. & T. Ry. Co. et al., U. S. v. (unreported), Pollock, D. J. pC]. . 212 
 
 Missouri Pacific Ry. Co. v. XT. S. (211 Fed., 893), Carland, C. J. [CCA-8]. ... 123, 
 
 144, 156, 157 
 Missouri Pacific Ry. Co., U. S. v. (unreported), Van Valkenburgh, D. J. [DC] 
 
 [reversed in 211 Fed., 893] 106,116,144,146,155,193 
 
 Missouri Pacific Ry. Co., U. S. v. (206 Fed., 847), Pollock, D. J. [DC] 106, 
 
 122, 132, 135, 137, 195, 196 
 Missouri Pacific Ry. Co., U. S. r. (213 Fed., 169), Sanborn, C. J. [CCA-8]... 160,197 
 Missouri Pacific Ry. Co., State v. (Ill S. W., 500), Lamm, J. [Missouri].. 30, 
 
 188, 189, 195 
 
 New York v. Erie R. Co. (91 N. E., 849), Hiscock, J. [New York] [reversed 
 
 in 233 U. S., 671] 107,189 
 
 New York, Erie R. Co. v. (233 U. S., 671), McKenna, Justice [SC] [91 N. E., 
 
 849 reversed] 187,189 
 
 Northern Pacific Ry. Co. v. State of Washington (222 U. S., 370), White, Chief 
 
 Justice [SC], [53 Wash., 673 reversed] 129, 179, 187, 188 
 
 Northern Pacific Ry. Co. v. U. S. (213 Fed., 162), Sanborn, C. J. [CCA-8]. 175, 194, 197 
 
 Northern Pacific Ry. Co. v. U. S. (213 Fed., 577), Ross, C. J. [CCA-9] 134 
 
 Northern Pacific Ry. Co., U. S. v. (213 Fed., 539), Rudkin, D. J. [DC]. . 139, 170, 193 
 
 Northern Pacific Ry. Co., U. S. v. (215 Fed., 64), Ross, C. J. [CCA-9] 166 
 
 Northern Pacific Ry. Co., State v. (93 Pac, 945), Brantly, J. [Montana] 188, 189 
 
 Northern Pacific Ry. Co., U. S. v, (unreported), Cushman, D. J. [DC] 116, 
 
 125, 128, 137, 139, 141, 142, 169, 170, 171, 202 
 
 Oregon-W. R. & N. Co., U. S. v. (213 Fed., 688), Rudkin, D. J. [DC]. . 112, 113, 115, 116 
 Oregon-W. R. & N. Co., U. S. v. (unreported), Rudkin, D. J. [DC] 176 
 
 People V. Erie R. Co. (91 N. E., 849), Hiscock, J. [New York] [reversed in 
 233U. S., 671] 107,189 
 
 Ramsey, U. S. ». (197 Fed., 144), Munger, D. J. ICCA-«] 29, 109, 121 
 
XXIV TABLES OF CASES. 
 
 Page. 
 St. Louis S. W. Ry. Co. of Texas, U. S. v. (189 Fed., 954), Maxey, D. J. [DC].. 21, 
 
 109, 110, 116, 143, 150, 152, 193 
 San Pedro, L. A. & S. L. R. Co. v. U. S. (213 Fed., 326), Hook, C. J, [CCA-8]. 106, 
 
 116, 120, 122, 128, 130, 131 
 
 Southern Pacific Co., U. S. v. (209 Fed., 562), Carland, C. J. [CCA-8] 106, 
 
 109, 159, 168, 172 
 
 Southern Ry. Co., U. S. v, (unreported), Smith, D. J. [DC] 106, 163, 167 
 
 State V. Chicago, M. & St. P. Ry. Co. (117 N. W., 686), Dodge, J. [Wiscon- 
 sin] 109,116,122,129,186,188,189,197 
 
 State V. Missouri Pacific Ry. Co. (Ill S. W., 500), Lamm, J. [ilissouri]. 30, 188, 189, 195 
 
 State V. Northern Pacific Ry. Co. (93 Pac, 945), Brantly, J. [Montana] 188, 189 
 
 State V. Texas & N. O. R. Co. (124 S. W., 984), Pleasants, Ch. J. [Texas].... 188, 189 
 
 State V. Wabaeh R. Co. (141 S. W., 646), Woodson, J. [Missouri] 188, 189 
 
 State, Northern Pacific Ry. Co. v. (222 U. S., 370), White, Chief Justice [SC] 
 [53 Wash., 673, reversed] 129, 179, 187, 188 
 
 Texas & N. O. R. Co., State v. (124 S. W., 984), Pleaaants, Ch. J. [Texas].. 188, 189 
 
 U. S., Atchison, T. & S. F. Ry. Co. v. (177 Fed., 115), Landis, D. J. [DC] 
 
 [reversed in 177 Fed., 114 and 220 U. S., 37] 122, 131, 147, 150, 151 
 
 U. S., Atchison, T. & S. F. Ry. Co. v. (177 Fed., 114), Grosscup, C.J. [CCA-7] 
 
 [reversing 177 Fed., 115; affirmed in 220 U. S.,37]. 150, 151, 152 
 
 U. S. V. Atchison, T. & S. F. Ry. Co. (220 U. S., 37), Hohnes, Justice [SC] 
 
 [177 Fed., 114, affirmed; 177 Fed., 115, reversed] 140, 141, 143, 144, 149, 151 
 
 U. S. v. Atchison, T. & S. F. Ry. Co. (212 Fed., 1000), Sawtelle, D. J. [DC]. . 101, 
 
 163, 165, 168, 170, 198 
 U. S. V. Atlantic Coast Line R. Co. (211 Fed., 897), Knapp, C. J. [CCA-4]. . 106, 
 
 116, 144, 147, 148, 150, 158, 193 
 
 U. S. V. Boston & M. R. Co. (unreported), Aldrich, D. J. [DC] 119, 128, 171 
 
 U. S. V, Chicago, M. & P. S. Ry. Co. (195 Fed., 783), Hanford, D. J. [DC]. . 113, 
 
 125, 127, 175, 177, 194 
 U. S. V. Chicago, M. & P. S. Ry. Co. (197 Fed., 624), Rudkin, D. J. [DC]... 106, 
 
 125, 132, 138, 139, 140, 141, 150, 170, 171, 181, 193 
 U. S. V. Chicago, M. & St. P. Ry. Co. (212 Fed., 574), Sanborn, D. J. [DC]. . 170 
 
 U. S. V. Chicago, R. I. & P. Ry. Co. (unreported). Van Valkenburgh, D. J. 
 
 [DC] , 131,146,156 
 
 U. S. V. Cleveland, C. C. & St. L. Ry. Co. (unreported) Hollister, D. J. [DC]. . 109, 
 
 118, 145, 154 
 
 U. S. V. Delaware, L. & W. R. Co. (unreported), Hazel, D. J. [DC] 106, 112, 162 
 
 U. S. V, Denver & R. G. R. Co. (197 Fed., 629), Pope, D. J. [DC] 125, 
 
 126, 127, 140, 141, 170, 193 
 U. S. V. Galveston, H. & S. A. Ry. Co. (unreported), Foster, D. J. [DC].. 169, 170, 215 
 
 U. S. V. Grand Rapids & I. Ry. Co. (unreported). Sessions, D. J. [DC] 106, 149 
 
 U. S. V. Grand Trunk Ry. Co. (unreported), Aldrich, D. J. [DC] '. 131 
 
 U. S. V. Great Northern Ry. Co. (206 Fed., 838), Dietrich, D. J. [DC] [affirmed 
 
 in 211 Fed., 309] 106, 120, 132, 134, 135, 136, 137 
 
 U. S. V. Great Northern Ry. Co. (unreported), Willard, D. J. [DC] [affirmed 
 
 byCCA-9; unreported] 119,136,168,215 
 
 U. S., Great Northern Ry. Co. v. (211 Fed., 309), Morrow, C. J. [CCA-9] 
 
 [affirming 206 Fed., 838] 132,170 
 
 U. S. V. Houston B. & T. Ry. Co. (205 Fed., 344), Foster, D. J. [CCA-5].... 116, 
 
 124,145,146,153,158,211 
 
HOURS OF SERVICE ACT. xxv 
 
 Page. 
 
 U. S. V, Illinois Central R. Co. (180 Fed., 630), Moms, D. J. [DC] 109, 
 
 125, 126, 127, 232 
 U. S. V. Kansas City Southern Ry. Co. (189 Fed., 471), Trieber, D. J. [DC].. 106, 
 
 109, 116, 128, 160, 162, 163, 169, 170, 171, 211, 213, 215 
 U. S. V. Kansas City Southern Ry. Co. (202 Fed., 828), Van Valkenburgh, 
 
 D. J. [CCA-8] 21, 106, 111, 114, 115, 116, 168, 169, 170, 172, 201, 211, 212, 213, 215 
 
 U. S. V. Minneapolis, St. P. & S. S. M. Ry. Co. (unreported), Amidon, D. J. 
 
 PC] 108,117,118,119,169,170 
 
 U. S. V. Missouri, K. & T. Ry. Co. (208 Fed., 957), Pollock, D. J. [DO] 107, 
 
 143, 150, 153 
 U. S. V. Missouri, K. & T. Ry. Co. of Texas (unreported), Russell, D. J. [DC] 
 
 [affirmed in 231 U. S., 112] 169,170,215 
 
 U. S. V. Missouri, K. & T. Ry. Co. et al. (unreported). Pollock, D. J. [DC]. . 212 
 
 U. S., Missouri, K. & T. Ry. Co. of Texas v. (231 U. S., 112), Holmes, Justice 
 
 [SC] 116,118,119,125,128,138,139,140,141,169,170 
 
 U. S. V. Missouri Pacific Ry. Co. (206 Fed., 847), Pollock, D. J. [DC] 106, 
 
 122, 132, 135, 137, 196, 196 
 U. S. V. Missouri Pacific Ry. Co. (213 Fed., 169), Sanborn, C. J. [COA-8]... 160,197 
 U. S. V. Missouri Pacific Ry. Co. (unreported). Van Valkenburgh, D. J. [DC] 
 
 [reversed in 211 Fed., 893] 106, 116, 144, 146, 155, 193 
 
 U. S., Missouri Pacific Ry. Co. v. (211 Fed., 893), Carland, C. J. [CCA-8]. . . . 123, 
 
 144, 156, 157 
 U. S. V. Northern Pacific Ry. Co. (213 Fed., 539), Rudkin, D. J. [DC].. 139, 170, 193 
 
 U. S. V. Northern Pacific Ry. Co. (215 Fed., 64), Ross, C. J. [COA-9] 166 
 
 U. S. V. Northern Pacific Ry. Co. (unreported), Cushman, D. J. [DC] 116, 
 
 125, 128, 137, 139, 141, 142, 169, 170, 171, 202 
 U. S., Northern Pacific Ry. Co. v. (213 Fed., 162) Sanborn, 0. J. [COA-8].. 175, 
 
 194, 197 
 
 U. S., Northern Pacific Ry. Co. v. (213 Fed., 577) Ross, 0. J. [COA-9] 134 
 
 TJ. S. V. Oregon-W. R. & N. Co. (unreported) Rudkin, D. J. [DC] 176 
 
 U. S. V. Oregon-W. R. & N. Co. (213 Fed., 688), Rudkin, D. J. [DC]- . 112, 113, 115, 116 
 
 U. S. V. Ramsey (197 Fed., 144), Munger, D. J. [COA-8] 29, 109, 121 
 
 U. S. V. St. Louis S. W. Ry. Co. of Texas (189 Fed., 954), Maxey, D. J. [DO]. 21, 
 
 109, 110, 116, 143, 150, 152, 193 
 U. S., San Pedro, L. A. & S. L. R. Co. v. (213 Fed., 326), Hook, 0. J. [CCA-8] 106, 
 
 116, 120, 122, 128, 130, 131 
 
 U. S. V. Southern Pacific Co. (209 Fed., 562) Carland, 0. J. [COA-8] 106, 
 
 109, 159, 168, 172 
 
 U. S. V. Southern Ry. Co. (unreported). Smith, D. J. [DO] 106, 163, 167 
 
 U. S. V. Yazoo & M. V. R. Co. (203 Fed., 159), McCall, D. J. [DO] 107, 
 
 113,175,176,194,195,196 
 
 Wabash R. Co., State v. (141 S. W., 646), Woodson, J. [Missouri] 188,189 
 
 Yazoo & M. V. R. Co., U. S. v. (203 Fed., 159) McCall, D. J. [DO] 107, 
 
 113, 175, 176, 194, 195, 196 
 
 B. — ^Actions for Personal Injury. 
 
 Chicago, M. & St. P. Ry. Co., Schweig v. (205 Fed., 96), Willard, D. J. [DC]. 122, 
 
 215,231 
 Cincinnati, N. O. & T. P. Ry. Co., Osborne's Adm'r. v. (164 S. W. 818), 
 Carroll, J. [Kentucky] 106, 126, 128, 136, 139, 170, 198, 231 
 
xxvT TABLES OF CASES. 
 
 Pags. 
 
 Lloyd V. North Carolina R. Co. (66 S. E., 604) Hoke, J. [North Carolina]. ... 189 
 
 McWhirter, St. Louis, I. M. & S. Ry. Co. v. (140 S. W., 672), Settle, J. [Ken- 
 tucky] [reversed in 229 U. S., 265] 107,109,113,222,226 
 
 McWhirter, St. Louis, I. M. & S. Ry. Co. v. (229 U. S., 265), White, Chief 
 Justice [SC] [reversing 140 S. W., 672] 113, 226, 231 
 
 North Carolina R. Co., Lloyd v. (66 S. E., 604), Hoke, J. [North Carolma]. . 189 
 
 Osborne's Adm'r. v. Cincinnati, N. O. & T. P. Ry. Co. (164 S. W., 818) Car- 
 roll, J. [Kentucky] 106,126,128,136,139,170,198,231 
 
 St. Louis, I. M. & S. Ry. Co. v. McWhirter (140 S. W., 672), Settle, J. [Ken- 
 tucky] [reversed in 229 U. S., 265] 107,109,113,222,226 
 
 St. Louis, I. M. & S. Ry. Co. v. McWhui;er (229 U. S., 265), White, Chief 
 
 Justice [SC] [reversing 140 S. W., 672] 113,226,231 
 
 Schweig V. Chicago, M. & St. P. Ry. Co. (205 Fed., 96), Willard, D. J. [DC]. . 122, 
 
 215, 231 
 O.— Miscellaneous Cases. 
 
 Black V. Charleston & W. C. Ry. Co. (69 S. E., 230), Hydrick, J. [South 
 Carolina] 120,163 
 
 Charleston & W. C. Ry. Co., Black v. (69 S. E., 230), Hydrick, J. [South 
 Carolina] 120,163 
 
 Kansas City Southern Ry. Co. v. Quigley (181 Fed., 190), Rogers, D. J. [CC]. 21T 
 
 Magruder, Washington, P. & 0. Ry. Co. v. (198 Fed., 218), Rose, D. J. [DC]. 152, 
 
 169, 170 
 
 Quigley, Kansas City Southern Ry. Co. v. (181 Fed., 190), Rogers, D. J. [CC]. 217 
 
 Washington, P. & 0. Ry. Co. v. Magruder (198 Fed., 218), Rose, D. J. [DC]. . 152, 
 
 169, 170 
 III.— COLLATERAL CITATIONS; 
 
 Adair V. U. S. (208 U. S., 161) 9.108 
 
 American R. Co. of Porto Rico v. Birch (224 U. S., 547) 64 
 
 American Trans. Co., Moore v, (24 How., 1) 38 
 
 Arkansas, Hammond Packing Co. v. (212 U. S., 348) Ill 
 
 Armour Packing Co. v. V. S. (153 Fed., 1) Ill, 117 
 
 Armour Packing Co. v. U. S. (209 U. S., 56) 111,117 
 
 Armstrong v. U. S. (13 Wall., 154) '. 219 
 
 Atchison, T. & S. F. Ry. Co., U. S. v. (166 Fed., 160) 161,163,171 
 
 Atchison, T. & S. F. Ry. Co. v. U. S. (178 Fed., 12) 119 
 
 Atlantic Coast Line R. Co., U. S. v. (173 Fed., 764) 119,161,162 
 
 Bachtel V. Wilson (204 U. S., 36) 218 
 
 Bagley, Railway Co. r. (56 Pac, 759) 193 
 
 Baltimore & O. S. W. R. Co. v. U. S. (220 U. S., 94) 118 
 
 Barlow, Whitney Arms Co. v. (63 N. Y., 62) 175 
 
 Barry, Brown r. (3 Dall., 365) 197 
 
COLLATEEAL CITATIONS. xxvn 
 
 Page. 
 
 Bennett, Gray V. (3 Met., 522) 21 
 
 Bevans, U. S. v. (3 Wheat, 336) 123,158 
 
 Bidwell, Downs i;. (182 U. S.,258) 218 
 
 Bidwell, Mosle v. (130 Fed., 334) 19T 
 
 Binnsi;. U. S. (194 U. S., 486) 196 
 
 Birch, American R. Co. of Porto Rico v. (224 U. S., 547) 64 
 
 Blake, Northern Pacific R. Co. v. (63 Fed., 45) 228 
 
 Bonnellv. Griswold (80 N. Y., 128) 175 
 
 Boston* A. R. Co., Carson v. (164 Mass., 523) 38 
 
 Boston Safe Deposit & T. Co. i;. Hudson (68 Fed., 758) 2U 
 
 Brady v. Kansas City, St. L. & C. R. Co. (102 S. W., 978) 73,230,232 
 
 Brown V. Barry (3 Dall. , 365) 197 
 
 Bucklew V. Central Iowa Ry. Co. (21 N. W., 103) 229 
 
 Bullock V. White Star Steamship Co. (30 Wash., 448) 163 
 
 Buttfield V. Stranahan (192 U. S., 470) 10 
 
 Cahaw. U. S. (152U. S., 211) 21» 
 
 Caldwell v. North Carolina (187 U. S., 622) 184 
 
 Campbell v. Lambert (51 Am., ] ) 193 
 
 Carson v. B. & A. R. Co. (164 Mass., 523) 38 
 
 Carter, Ryanv. (93 U. S., 78) 211 
 
 Carter V. Sioux aty Co. (141 N. W., 26) 58 
 
 Castles, Welles v. (69 Mass., 325) 162 
 
 Central Iowa Ry. Co., Bucklew v. (21 N. W., 103) 229 
 
 Chaffee r. U. S. (18 Wall., 516) 217 
 
 Champlin, Ins. Co. v. (116 Fed., 858) 193 
 
 Chapman, Fish v. (2 Ga., 349) 161 
 
 C. & 0. Ry. Co., Powers V. (169 U. S., 92) 216 
 
 Chicago & N. W. Ry. Co., Pierson v. (102 N. W., 149) 73 
 
 Chicago, B. & Q. Ry. Co. v. McGuire (219 U. S., 549) 109,135 
 
 Chicago, B. & Q. Ry. Co. v. U. S. (195 Fed., 241) 211,212 
 
 Chicago, St. L. & N. 0. R. Co. v. P. S. Car Co. (139 U. S., 79) 160 
 
 Choctaw 0. & G. R. Co. V. McDade (191 U. S., 64) 224 
 
 City of New York, Sheean t). (75 N. Y. Supp., 802) 159 
 
 Clyde et al. v. Richmond & D. R. Co. (59 Fed., 394) 161 
 
 Coe v. Errol (116 U. S., 517) 180 
 
 Cohens v. Virginia (6 Wheat., 264) 218 
 
 Cold Blast Transp. Co. v. Kansas City B. & N. Co. (114 Fed., 77) 193 
 
 Collard, Jenkins V. (145 U.S., 546) 219 
 
 Conroy, New England R. Co. v. (175 U. S., 323) 219 
 
 Cook, State ex. rel. v. (171 Mo., 357) 31 
 
 Coy, Turnpike Co. v. (13 Ohio St., 84) 193 
 
 Cox, Crystal Spring Dist. Co. v. (49 Fed., 555) 162 
 
 Crutcher r. Kentucky (141 U. S., 47) 184 
 
 Crystal Spring Dist. Co. v. Cox (49 Fed., 555) 162 
 
 Dacey r. Old Colony R. Co. (26 N. E., 437) 38,57 
 
 Daniel Ball, The (10 Wall., 557) 180 
 
 Danner, Western Gas Co. v. (97 Fed., 882) 210 
 
 Davie v. Mining Co. (53 N. W., 625) 193 
 
 Dearing, F. & M. Nat. Bank v. (91 U. S., 29) 21 
 
 Debs, In re (158 U. S., 564) 187,191 
 
 Denny v. New York Central & H. R. R. Co. (13 Gray., 481) 119 
 
 Detroit Street Ry. v. Mills (85 Mich., 634) 88 
 
xxvm TABLES OF OASES. 
 
 Page. 
 
 Dickson, U. S. D. (15 Pet., 141) 211,212,213 
 
 Dinsmore V. Racine M. R. Co. (12 Wis., 649) 29 
 
 Dixon V. U. S. (1 Brock., 177) 161 
 
 Dobson V. Whisenhant (8 S. E., 126) 210 
 
 Doggettr. R. Co. (99U. S., 72) 194 
 
 Dollar Savings Bank v. V. S. (19 Wall., 227) 211 
 
 Downes v. Bidwell (182 U. S., 244) 218 
 
 Dreyer v. People (58 N. E., 620) 162 
 
 Duluth S. S. & A. Ry. Co., Morris v. (108 Fed., 747) 73 
 
 Ecker, Tays v. (24 S. W., 954) 162 
 
 EUisv. U. S. (206U. S., 246) 172 
 
 Elmore v. Seaboard Air Line Ry. Co. (41 S. E., 786) 80, 227 
 
 Errol, Coe v. (116 U. S., 517) 180 
 
 F. &M. Nat. Bankr. Bearing (91 U. S., 29) 21 
 
 First Nat. Bank of Anamoose v. U. S. (206 Fed., 374) 123, 158 
 
 Fish V. Chapman (2 Ga., 349) 161 
 
 Fisher, U. S. V. (2 Cr., 358) 194 
 
 Fitzgerald v. Quann (17 N.E., 354) 197 
 
 Flemister V. U. S. (207 U. S., 372) 119 
 
 Florida, Osbom i;. (164 U. S., 650) 184 
 
 Four Hundred Twenty Dollars, 11.8 1). (162 Fed., 803) 175 
 
 Gibson v. Jinney (15 Mass., 205) 197 
 
 Gila Valley Ry. Co. «. Lyon (203 U. S., 465) 210 
 
 Gleeson v. Virginia Midland R. R. Co. (140 U. S., 435) 162 
 
 Gould V. New York Life Ins. Co. (132 Fed., 927) 211 
 
 Gray V. Benrett (3 Met., 522) 21 
 
 Grand Trunk Western Ry. Co. v. Poole (93 N. E., 26) 26, 73, 74, 216, 226, 229, 230 
 
 Green Bay & Miss. Canal Co., Kaukauna Water Power Co. v. (142 U. S., 254) . . 218 
 
 Greenlee v. Southern Ry. Co. (30 S. E., 115) 225,227 
 
 Griswold, Bonnell v. (80 N. Y., 128) 175 
 
 Hale v. Henkel (201 U. S., 43) Ill 
 
 Hall, Southern Pacific Co. v. (100 Fed., 760) 210 
 
 Hamilton v. Rathbone (175 U. S., 414) 194 
 
 Hammock V. Loan & Trust Co. (105 U. S., 77) 195 
 
 Hammond Packing Co. v. Arkansas (212 U. S., 322) Ill 
 
 Hanley v. Kansas City Southern Ry. Co. (187 U. S., 617) 35, 180 
 
 Hanmore, Pier f. (86 N. Y., 95) 175 
 
 Hans V. Louisiana (134 U. S., 1) 218 
 
 Harriman v. Northern Securities Co. (197 U. S., 244) 218 
 
 Harrison v. Hughes (125 Fed., 860) 163 
 
 Harvey, Texas & Pacific Ry. Co. v. (228 U. S., 319) 229 
 
 Harzburgv. Southern Ry. Co. (44 S. E., 75) 163 
 
 Heath v. Wallace (138 U. S., 573) 198 
 
 Henkel, Hale V. (201 U. S., 74) Ill 
 
 Hennick, Stoutenburgh r. (129 U. S., 141) 35 
 
 Henry County v. Salmon (201 Mo., 161) 31 
 
 Hepner v. U. S. (213 U. S., 103) 215 
 
 Holcomb, McRae v. (46 Ark., 306) 211 
 
 Holy Trinity Church r. U. S. (143 U. S., 457) 196 
 
 Hudson, Boston Safety Deposit & T. Co. v. (68 Fed., 758) 211 
 
 Hughes, Harrison v. (125 Fed., 860) 163 
 
COLLATERAL CITATIONS. xxix 
 
 111. T. & S. Bank, Magoun v. (170 U. S., 283) 109 
 
 In re Debs (158 U. S., 564) 187,191 
 
 Jenkins v. Collard (145 U. S., 546) 219 
 
 Jinney, Gibson v. (15 Mass., 205) 197 
 
 Johnson v. Mammoth Vein Coal Co. (114 S. W., 722) 7 
 
 Jones V. U. S. (137 U. S., 202) 219 
 
 Kansas City V. Scarritt (169 Mo., 485) 31 
 
 Kansas C. B. & N. Co., Cold Blast Transp. Co. v. (114 Fed., 77) 193 
 
 Kansas City, St. L. & C. R. Co., Brady v. (102 S. W., 978) 73, 230, 232 
 
 Kansas City Southern Ry. Co., Hanley v. (189 U. S., 617) 35, 180 
 
 Kaukauna Water Power Co. v. Green Bay & Miss. Canal Co. (142 U. S., 254) 218 
 
 Kelly, State V. (70 L. R. A., 450) 46 
 
 Kentucky, Crutcher i;. (141 U. S., 47) 184 
 
 Kimball, Mobiles. (102 U. S., 691) 187 
 
 Kirby, U. S. V. (7 Wall., 482) 197 
 
 Knight V. U. S. Land Ass'n. (142 U. S. 161) 219 
 
 Knox Co. V. Morton (68 Fed., 787) 194 
 
 Lacher, U. S. v. (134 U. S., 624) 192, 195 
 
 Lake County v. Rollins (130 U. S., 662) 194 
 
 Lake Superior & M. R. Co. v. U. S. (93 U. S.,442)...: 29 
 
 Lambert, Campbell v. (51 Am. 1) 193 
 
 Leavenworth, etc., R. Co. v. U. S. (92 U. S., 733) 211 
 
 Lewis V. Pennsylvania R. Co. (69 Atl., 821) 232 
 
 Loan & Trust Co., Hammock v. (105 U. S., 77) 195 
 
 Louisiana, Hans v. (134 U. S., 1) 218 
 
 Lyon, Gila Valley R. Co. v. (203 U. S., 465) 210 
 
 McDade, Choctaw O. & G. R. Co. v. (191 U. S., 64) 224 
 
 McGuire, Chicago, B. & Q. Ry. Co. v. (219 U. S., 549) 109, 135 
 
 McRaev. Holcomb (46 Ark., 306) 211 
 
 Magoun r. 111. T. & S. Bank (170 U. S., 283) 109 
 
 Majestic, The (166 U.S., 375) 163 
 
 Mammoth Vein Coal Co., Johnson v. (114 S. W., 722) 7 
 
 Mason v. Richmond & D. R. Co. (16 S. E., 698) 227 
 
 Massachusetts, Plumley v. (155 U. S., 461) 218 
 
 Matthews v. Patterson (26 Pac, 812) 176 
 
 Memphis & C. R. Co. v. Reeves (10 Wall., 176) 119 
 
 Miller, St. Louis Cordage Co. v. (126 Fed. 495) 222 
 
 Mills, Detroit Street Ry. v. (85 Mich., 634) 38 
 
 Mining Co., Davie v. (53 N. W., 625) 193 
 
 Mobile v. Kimball (102 U. S., 691) 187 
 
 Moore V. American Trans. Co. (24 How., 1) 38 
 
 Morris v. Duluth S. S. & A. Ry. Co. (108 Fed., 747) 73 
 
 Morsman, U. S. v. (42 Fed., 448) 184 
 
 Morton, Knox Co. v. (68 Fed., 787) 194 
 
 Mosle et al. v. Bidwell (130 Fed., 334) 197 
 
 New England R. Co. v. Conroy (175 U. S., 323) 219 
 
 Newport News & M. V. Co. v. U. S. (61 Fed., 488) 161 
 
 New York Central & H. R. R. Co., Denny v. (13 Gray., 481) ^ 119 
 
 New York Central & H. R. R. Co. v. U. S. (165 Fed., 833) 211 
 
 New York Life Ins. Co., Gould v. (132 Fed., 927) 211 
 
XXX TABLES OF CASES. 
 
 Page. 
 
 North (3arolina, Caldwell v. (187 U. S., 622) 184 
 
 North Carolina R. Co. v. Zachary (232 U.S., 248) 24, 44, 139, 181 
 
 Northern Bank V. Porter Township (110 U. S., 608) 218 
 
 Northern Pacific R. Co. v. Blake (63 Fed., 45) 228 
 
 Northern Securities Co., Harriman v. (197 U. S., 244) 218 
 
 Old Colony R. Co., Dacey v. (26 N. E., 437) 38,57 
 
 Olympia, The (61 Fed., 120) 161 
 
 Osbornv. Florida (164 U. S., 650) 184 
 
 Patterson, Matthews v. (26 Pac, 812) 175 
 
 Pekoe, Vogelv. (42 N.E., 386) 193 
 
 Pennsylvania R. Co., Lewis v. (69 Atl., 821) 232 
 
 People, Dreyer v. (58N. E.,620) 162 
 
 PeopletJ. Spencer (201 N. Y., 105) 119 
 
 Phelps, RaUway Co. V. (137 U. S., 528) 194 
 
 Pier v. Hanmore (86 N. Y., 95) 175 
 
 Piersonv. Chicago&N. W. Ry. Co. (102N.W., 149) 78 
 
 Pittsburgh, C. C. & St. L. Ry. Co. v. State (87 N. E., 1034) 189 
 
 Plumley V.Massachusetts (155 U.S., 461) 218 
 
 Poole, Grand Trunk Western Ry. Co. v. (93 N. E., 26).... 26,73,74,216,226,229,230 
 
 Porter Township, Northern Bank v. (110 U. S., 608) 218 
 
 Powersi;. C. &0. Ry. Co. (169U. S., 92) 216 
 
 P. S. Car Co., Chicago, St. L. & N. 0. R. Co. v. (139 U. S., 79) 160 
 
 Quann, Fitzgerald V. (17 N. E., 354) 197 
 
 Racine M. R. Co., Dinsmore v. (12 Wis., 649) 29 
 
 Railway Co. v. Bagley (56 Pac, 759) 193 
 
 Railway Co., Doggett v. (99 U. S., 72) 194 
 
 Railway Co., Shaw V. (101 U. S., 557) 197 
 
 Rathbone, Hamilton v. (175 U. S., 414) 194 
 
 Reeves, Memphis & C. R. Co. v. (10 Wall., 176) 119 
 
 Richmond & D. R. Co., Clyde v. (59 Fed., 394) 161 
 
 Richmond & D. R. Co., Mason v. (16 S. E., 698) 227 
 
 Rollins, Lake County t?. (130 U. S., 662) 194 
 
 Romero v. U. S. (1 WalL, 721) 219 
 
 RyanetaL v. Carter et aL (93 U. S., 78) 211 
 
 Ryan, Woolsey v. (54 Pac, 664) 193 
 
 Railway Co. v. Sage (71 Fed., 40) 194 
 
 St. Joseph Stock Yards Co. v. U. S. (187 Fed., 104) 117 
 
 St. Louis & S. F. Ry. Co. v. Scale (229 U. S., 156) 183 
 
 St. Louis & S. F. Ry. Co. v. V. S. (169 Fed., 69) 117 
 
 St. Louis Cordage Co. v. Miller (126 Fed., 495) 222 
 
 St. Louis, I. M. & S. R. Co. r. State (143 S. W., 913) 164 
 
 St. P., M. & M. Ry. Co. v. Phelps (137 U. S., 528) 194 
 
 St. P., M. & M. Ry. Co. v. Sage (71 Fed., 40) 194 
 
 Salmon, Henry County i). (201 Mo., 161) 31 
 
 San Francisco Bridge Co., U. S. v. (88 Fed., 891) 114 
 
 Scarritt, Kansas City v. (169 Mo., 485) i 31 
 
 Seaboard Air Line Ry . Co., Elmore v. (41 S. E., 786) 80, 227 
 
 Scale, St. Louis&S. F. Ry. Co. -y. (229U. S.,156) 183 
 
 Shaw V. Railway Co. (101 U. S., 557) 197 
 
 Sheean v. City of New York (75 N. Y. Supp. , 802) 159 
 
COLLATEEAI CITATIONS. xxxi 
 
 Page. 
 
 I, Swartsr. (117 Fed., 13) 194 
 
 Sioux City Co., Carter r. (141 N. W., 26) ..,. 58 
 
 Smith i;. Southern Ry. Co. (40 S. E., 86) 162 
 
 Smith, Stensgaard t;. (44 N. W., 669) 193 
 
 Southern Indiana Exp. Co. v. U. S. Exp. Co. etal. (88 Fed., 659) 184 
 
 Southern Pacific Co. r. Hall (100 Fed., 760) 210 
 
 Southern Pacific Co., U. S. -y. (157 Fed., 459) 161,170 
 
 Southern Ry. Co., Greenlee V. (30 S. E., 115) 225,227 
 
 Southern Ry. Co., Harzburg v. (44 S. E., 75) • 163 
 
 Southern Ry. Co., Smiths. (40 S. E., 86) 162 
 
 Spencer, People V. (201 N. Y., 105) 119 
 
 Sprague v. Wisconsin Central Ry. Co. (116 N. W., 104) 229, 232 
 
 State ex rel. v. Cook (171 Mo., 357) 31 
 
 State, Pittsburgh, C, C. & St. L. Ry. Co. v. (87 N. E., 1034) 189 
 
 State, St. Louis, I. M. & S. R. Co. v. (143 S. W., 913) 164 
 
 State V. Kelly (70 L. R. A., 450) 46 
 
 Stensgaard I'. Smith (44 N. W., 669) 193 
 
 Stoutenburgh v. Hennick (129 U. S., 141) 35 
 
 Stowell, U. S. V. (133 U. S., 1) 21 
 
 Stranahan, Buttfield v. (192 U. S., 470) 10 
 
 Swarts V. Siegel (117 Fed. , 13) 194 
 
 Taylor v. U. S. (3 How., 197) 21 
 
 Tays-y. Ecker(24S. W.,954) 162 
 
 Teschmaker, U. S. v. (22 How., 392) 219 
 
 Texas & Pacific Ry. Co. v. Hkrvey (228 U. S., 319) 229 
 
 The Majestic (166 U. S., 375) 163 
 
 The Olympia (61 Fed., 120) 161 
 
 Trans-Missouri Freight Ass'n., U. S. v, (166 U. S., 290) 198 
 
 Turnpike Co. v. Coy (13 Ohio St. , 84) 193 
 
 Union Bridge Co. V. U. S. (204 U. S., 364) 10 
 
 Union Central Life Ins. Co. v. Champlin et al. (116 Fed., 858) 193 
 
 Union Pacific R. Co., U. S. v. (169 Fed., 65) 161 
 
 U. S., Adair v. (208 U. S., 161) 9,108 
 
 U. S., Armour Packing Co. t>. (153 Fed., 1) 111,117 
 
 U. 8., Armour Packing Co. V. (209 U.S., 56) 111,117 
 
 U. S., Armstrong i;. (13 Wall., 154) 219 
 
 U. S. V. Atchison, T. & S. F. Ry. Co. (166 Fed., 160) 161,163,171 
 
 U. S., Atchison, T. & S. F. Ry. Co. v. (178 Fed., 12) 119 
 
 U. S. u. Atlantic Coast Line R. Co. (173 Fed., 764) 119,161,162 
 
 U. S., Baltimore & 0. S. W. R. Co. v. (220 U. S., 94) 118 
 
 U. S. V. Bevane (3 ^^lieat., 336) 123,158 
 
 U. S., Binns i;. (194 U. S., 486) 196 
 
 U. S.,Cahav. (152U. S., 211) 219 
 
 U. S., Chaffee V. (18 Wall., 518) 217 
 
 U. S., Chicago, B. & Q. R. Co. v. (195 Fed., 241) 211, 212 
 
 U. B,v. Dickson (15 Pet., 141) 211,212,213 
 
 U. S., Dixon t'. (1 Brock., 177) 161 
 
 U.S., Dollar Savings Bank v. (19 WalL, 227) 211 
 
 U. S., Ellis i;. (20G U. S., 246) 172 
 
 U. S. Exp. Co., Southern Indiana Exp. Co. v. (88 Fed., 659) 184 
 
 U. S., First Nat. Bank of Anamoose v. (206 Fed., 374) 123, 158 
 
TTTTT TABLES OF CASES. 
 
 Page. 
 
 U.S. V. Fisher (2 Cr., 358) 194 
 
 U.S., Flemisterv. (207 U. S., 372) 119 
 
 U. S. V. Four Hundred Twenty Dollars (162 Fed., 803) 175 
 
 U. S., Hepner v. (213 U. S., 114) 215 
 
 U. S., Holy Trinity Church v. (143 U. S., 457) 196 
 
 U. S., Jones v. (137 U. S., 202) 219 
 
 U. S. v. Kirby (7 Wall., 482) 197 
 
 U. S., L. S. & M. R. Co. v. (93 U. S., 442) 29 
 
 U. S. V. Lacher (134 U. S., 624) 192, 195 
 
 U. S., Leavenworth, etc., R. Co. v. (92 U. S., 733) 211 
 
 U. S. -y. Morsman (42 Fed., 448) 184 
 
 U. S., Newport News & M. V. Co. v. (61 Fed., 488) 161 
 
 U. S., New York Central & H. R. R. Co. v. (165 Fed., 833). ^ 211 
 
 U.S., Romero v. {I Wall., 721) 219 
 
 U. S., St. Joseph Stock Yards Co. v. (187 Fed., 104) 117 
 
 U. S., St. Louis & S. F. R. Co. v. (169 Fed., 69) 117 
 
 U. S. V. San Francisco Bridge Co. (88 Fed., 891) 114 
 
 U. S. V. Southern Pac. Co. (157 Fed., 459) 161, 170 
 
 U. S. v. Stowell (133 U. S., 1) 21 
 
 U. S., Taylor i;. (3 How., 197) 21 
 
 U. S. V. Teschmaker (22 How., 392) 219 
 
 U. S. v. Trans-Missouri Freight Ass'n. (166 U. S., 290) 198 
 
 U.S.Union Bridge Co. r. (204 U. S., 364) 10 
 
 U. S. v. Union Pacific R. Co. (169 Fed., 65) 161 
 
 U. S., Wilson V. (221 U. S., 361) : Ill 
 
 U. S. V. Wiltberger (5 Wheat., 76) 193 
 
 U. S. -y. Wong Kim Ark (169 U. S., 649) 218 
 
 U. S. Land Ass'n., Knight i;. (142 U. S., 161) 219 
 
 Virginia, Cohenfl v. (6 Wheat., 264) 218 
 
 V. M. R. R. Co., Gleeson v. (140 U. S., 435) 162 
 
 Vogel V. Pekoe (42 N. E., 386) 193 
 
 Wallace, Heath v. (138 U. S., 573) 198 
 
 Watson's Trial (32 How., St. Tr., 125) 210 
 
 Welles V. Castles (69 Mass., 325) 162 
 
 Western Gaa Co. v. Danner (97 Fed., 882) 210 
 
 Whisenhant, Dobson t>. (8 S. E., 126) 210 
 
 White Star Steamship Co., Bullock v. (30 Waah., 448) 163 
 
 Whitney Arms Co. -y. Barlow (63 N. Y., 62) 175 
 
 Wilson, Bachtel v. (204 U. S., 36) 218 
 
 Wilson V. U. S. (221 U. S., 361) Ill 
 
 Wiltberger, U. S. v. (5 Wheat., 76) 193 
 
 Wisconsin Central Ry. Co., Sprague v. (116 N. W., 104) 229, 232 
 
 Wong Kim Ark, U. S. V. (169 U. S., 649) 218 
 
 Woolsey v, Ryan (54 Pac, 664) 193 
 
 Zachary, North Carolina R. Co. t>. (232 U. S ., 248) 24, 44, 139, 181 
 
A DIGEST OF DECISIONS 
 
 UNDER THE 
 
 FEDERAL SAFETY APPLIANCE AND HOURS OF 
 SERVICE ACTS, 
 
 With references to or excerpts from additional cases in which the Acts 
 
 have been construed; Orders and Administrative Rulings 
 
 of the Interstate Commerce Commission. 
 
 Part I. THE SAFETY APPLIANCE ACTS. 
 
 A. NATURE AND PURPOSE OF THE ACTS, 7; 
 
 B. CONSTRUCTION AND INTERPRETATION OF THE ACTS, 9; 
 
 C. SCOPE OF THE ACTS, 28; 
 
 D. POWER DRIVING WHEEL BRAKES AND TRAIN BRAKE SYSTEMS, 66; 
 
 E. COUPLERS, 68; 
 
 F. GRAB IRONS OR HANDHOLDS, 83; 
 
 G. STANDARD HEIGHT OF DRAWBARS, 86; 
 H. HANDBRAKES, 89; 
 
 I. EXCEPTIONS TO THE APPLICATIONS OF THE ACTS, 90. 
 
 A. NATURE AND PURPOSE OF THE ACTS. 
 
 1. The Acts are — 
 
 (a) Beneficent, 7; 
 
 (b) Civil, 7; 
 
 (c) Meritorious, 7; 
 
 (d) Penal, 7; 
 
 (e) Preventive, 7; 
 
 (f) Remedial, 7. 
 
 2. The essential purpose of the Acts is the protection of the lives and limbs ol 
 employees and passengers, 7 : 
 
 (a) And the distribution of the economic loss arising from accidents, 8; 
 
 3. The purpose of the Amendment of 1903 was to enlarge the scope of the original 
 Act, 8. 
 
 B. CONSTRUCTION AND INTERPRETATION OF THE ACTS. 
 1. The Acts are constitutional, 9: 
 
 (a) The delegation to the Interstate Commerce Commission and the American 
 Railway Association of authority to designate the standard height of draw- 
 bars is not unconstitutional, 10. 
 , : 2. The Acts impose upon the carriers subject to their terms an absolute and un,- 
 conditional duty, not only, in the first instance, to provide the requisite equip- 
 ment, but, at all times thereafter and under all circumstances, to maintain 
 appliances in a condition of repair, 10: 
 
 50611—15 1 1 
 
SA^ETX APPLIANCE ACTS. 
 
 (ay.Jt)il^hc«* in' th^ :dis:cQC'ery and repair of defects is not a defense to prose- 
 cutions under the Acts, 13 ; 
 (i) But the exercise of such diligence on the part of carriers will, in great 
 measure, obviate occasion for prosecution, 14; 
 ■(b) Prior knowledge on the part of carriers, with respect to the existence of 
 defects, is not an element of violations of the Acts, 14; 
 
 (c) A willful intention on the part of carriers to disregard the Acts is not an 
 element of their violation, 16; 
 
 (d) The fact that it may be inconvenient for a carrier to observe the Acts does 
 not excuse their violation, 16; 
 
 (e) The absolute duty of carriers under the Acts Is not to be evaded by assign- 
 ment or otherwise, 16 ; 
 
 (i) And the decision of a conductor as to the disposition of a defective car is, 
 in effect, the decision of the carrier by which he is employed, 16; 
 
 (f) A carrier is liable under the Acts for the defective condition of a safety 
 appliance, even though the deliberate act of an employee may have rendered it 
 inoperative or inefficient, 17, 
 
 (i) But no violation of the Acts results from the failure of an employee effi- 
 ciently to operate equipment, provided such equipment is actually opera- 
 tive, 17; 
 
 (g) Safety appliances designed to secure compliance with the Acts must be 
 operative, 18. 
 
 3. Proceedings on behalf of the Government for the recovery of the penalties pro- 
 vided by the Acts are civil actions, 19: 
 
 (a) And the payment to the United States of the penalties recovered does not 
 render such proceedings criminal actions, 20; 
 
 (b) An action in the nature of an action in debt is appropriate for the lecoveiy 
 of the penalties provided by the Acts, 20. 
 
 4. The Acts are to be construed similarly (a) to the Customs and Bevenue 
 Laws, 21; 
 
 (b) To the Hours of Service Act, 21 ; 
 
 (c) And to the Pure Food and Drugs Acts, 21. 
 
 (d) But they are not in pari materia with the Act to regulate commerce, 22; 
 
 (e) And are distinguishable, in their construction, from the Employers' Liability 
 Acts, 23. 
 
 6. Whatever constitutes a violation of the Acts in a personal action for damages is 
 likewise a violation in an action for the statutory penalty, 24. 
 
 6. A violation of the Acts resulting in personal injury entails two penalties — 
 one of $100, accruing to the Government ; the other to the employee injured by 
 reason thereof, in the abrogation of the defense of assumption of risk, 24. 
 
 7. In a prosecution for the recovery of the statutory penalty the defendant is liable 
 as to each and every car used or hauled in violation of the Acts, 26. 
 
 8. In a prosecution for the recovery of the statutory penalty the ownership of the 
 cars involved is immaterial, and the defendant is liable for the use or hauling 
 of a foreign car in violation of the Acts, 26: 
 
 (a) But a carrier need not accept defective cars from a connecting line, 27. 
 
 9. The Amendment of 1903 is affirmative and declaratory of the original Act, 27. 
 
 10. A custom of railroads in the observance of practices condemned by the Acts 
 does not excuse their violation, 27. 
 
 11. The Standardization Order of the Interstate Commerce Commission, made 
 in pursuance of the Act of 1910, is persuasive as to the meaning of the statute, 28. 
 
 12. Defective cars may be hauled on flat cars properly equipped, 28. 
 
SCOPE. 
 
 C. SCOPE OF THE ACTS. 
 
 1. Provisions of the Law, 28: 
 
 (a) "Railroad" defined, 29; 
 
 (b) "Common carrier" defined, 29; 
 
 (i) Railroads devoted to public use are common carriers, 29; 
 
 2. The Acts apply to railroads generally engaged in interstate commerce, 30; 
 
 (a) And courts may take judicial notice of the fact that trunk line railroads are 
 generally engaged in interstate commerce, 80. 
 
 3. The Acts apply to intrastate railway companies that participate in the move- 
 ment of interstate traffic, 31 ; 
 
 (a) And community of control, management, or arrangement with other carriers 
 is not prerequisite to the application of the Acts to such traffic, 33. 
 
 4. The Acts apply to interurban electric railway companies that participate in the 
 movement of interstate traffic, 33. 
 
 5. A car hauled or used by one carrier over the lines of another, under a contract 
 or trackage agreement, is hauled or used "on the line"- of the operating com- 
 pany within the purview of the Acts, 34. 
 
 6. The Acts apply to all railroads participating, and to all vehicles hauled or 
 used, in the movement of commerce within the Territories of the United 
 States, 35, 
 
 7. The Acts apply to all cars containing interstate traffic, 35. 
 
 8. The Acts apply to all cars used or hauled in interstate trains, 36: 
 
 (a) "Haul" defined, 37; 
 
 (b) "Used" defined, 37; 
 
 (c) The term "Used" is of broader significance than the word "hauled," 38; 
 
 (d) "Train" defined, 38. 
 
 9. The Acts apply to all cars used or hauled in connection with interstate cars, 39; 
 (a) And cars so hauled or used in connection with interstate cars need not be 
 
 coupled nor contiguous to such cars in order to come within the purview ol 
 the Acts, 40. 
 
 10. The Acts apply to any car the movement of which is necessary to the move- 
 ment of an interstate car, 40. 
 
 11. The Acts apply to all cars used or hauled on any railroad which is a highway 
 of interstate commerce, 41. 
 
 12. The Acts apply to all cars regularly used in interstate commerce, 42. 
 
 13. The Acts apply to empty cars, 44; 
 
 (a) The hauling of a car itself is commerce within the purview of the Acts, 45, 
 
 14. The Acts apply to all cars commercially used by an interstate carrier, 46; 
 
 (a) And cars used or hauled by an interstate carrier for the transportation ol 
 its own products or property are commercially used within the purview of the 
 Acts, 45. 
 16. The expression "any car", as used in the Acts, comprehends all cars running 
 
 on the rails, 46: 
 
 (a) Locomotives, 48: 
 
 (i) The locomotive at the head of a freight train is a "freight car" within 
 the purview of the Acts, 46; 
 
 (b) Locomotive tenders, 47; 
 
 (c) Shovel cars, 47 ; 
 
 (d) Caboose cars, 47; 
 
 (e) PA333ii2;5r cirs, 47; 
 
 (f) rxining cars, 48. 
 
 16. Cars to which the Acts apply are subject to their terms even while such ve- 
 hicles are bsin^ moved within the boundaries of a single State, 48. 
 
SAFETY APPLIANCE ACTS. 
 
 17. The Acts apply no less to inter-yard or switching movements than to main- 
 line operations, 49; 
 
 (a) The distance a defective car is hauled in violation of the Acts is imma- 
 terial, 62. 
 
 18. The Acts impose upon all carriers subject to their terms an obligation to main- 
 tain repair points at suitable intervals along their lines of railroad, and to provide 
 at such points such appropriate material and facilities for repair as will enable 
 them to comply with the requirements of the statute, 63. 
 
 ' 19. The Acts extend to the Island of Porto Rico, 64. 
 
 D. POWER DRIVING-WHEEL BRAKES AND TRAIN-BRAKE SYSTEMS. 
 
 1. Provisions of the Law, 65: 
 
 (a) "Associated," as used in section 2 of the Act of 1903, defined, 66. 
 
 2. In computing the percentage of operative air-brake equipment in any given train, 
 the engine and tender are to be counted as two cars, 66. 
 
 3. The Acts do not directly prohibit the use of individual cars on which the air 
 brakes have been "cut out" 66. 
 
 4. In the absence of evidence of insufficient air-brake equipment, the use of hand 
 brakes, not to control the speed of a train but to insure the safety of its move- 
 ments, is not a violation of the Acts, 66. 
 
 6. The requirement of efficient air-brake equipment presupposes that such 
 
 equipment shall be inspected at terminals. 67. 
 6. The air-brake provisions of the Acts apply no less to inter-yard or switching 
 
 movements than to main-line operations, 49, 63. 
 
 E. COUPLERS. 
 
 1. Provisions of the Law, 68: 
 
 2. The provision of the Act of 1893 that couplers shall be operative "without the 
 necessity of men going between the ends of the cars" applies to coupling as well 
 as to uncoupling operations, 68. 
 
 3. The Acts require that couplers shall be operative on both ends of cars, 69; 
 
 (a) But the Acts do not require automatic couplers between engines and tend- 
 ers, 70. 
 
 4. The Acts require that couplers shall be operative in an ordinary and reasonable 
 manner, 70; 
 
 (a) And repeated unsuccessful efforts to operate a coupler in an ordinary and 
 reasonable manner afford some evidence that it is defective, 71. 
 
 5. The Acts require that the couplers actually used or attempted to be used at any 
 given time shall be operative of their own mechanism, 71; 
 
 (a) But if a coupler is in fact defective, it is not necessary that it shall be actually 
 used or attempted to be used in order to constitute a violation of the Acts, 71 ; 
 
 6. The Acts do not contemplate that employees shall be required to go around, 
 
 over, or under cars in order to operate couplers by means of the levers on the 
 opposite sides of adjacent cars, 72. 
 
 7. The preparation of a coupler for impact is a part of the coupling operation within 
 the purview of the Acts, 74 ; 
 
 (a) But the coupling of air hose between cars is no part of such coupling oper- 
 ation, 74. 
 
 8. The Acts prohibit the use of a coupler operative only by means of a chain con- 
 necting with the platform handrail, 74. 
 
 9. The Acts prohibit the use of couplers which will not couple automatically by 
 impact when cars are brought together 75 : 
 
 (a) By reason of a clevis pin having been removed, 75 ; 
 (i) And the fact that a pin is missing from a coupler at the termination of a 
 given trip affords some evidence that the coupler was defective at the com- 
 mencement of the journey, 76: 
 
COUPLERS— GRAB IRONS OR HANDHOLDS. 
 
 (b) By reason of being worn out, 76 ; 
 
 (c) By reason of an uncoupling chain being kinked in the coupler head, 76; 
 
 (d) By reason of the curvature of the track on which the cars in question are 
 attempted to be coupled, 77 ; 
 
 (e) By reason of the cars to which they are attached being so laden with lumber 
 or other material projecting beyond their ends as to preclude the automatic 
 operation of such couplers, 78; 
 
 (f) The Acts prohibit the use of a car on which a coupler is inoperative even 
 though the defect may be so obvious that no reasonably prudent employee 
 would attempt to use such coupler, 79. 
 
 10. The use of a car on which a coupler is inoperative is the same in legal effect 
 as if such car had never been equipped with automatic couplers, 80. 
 
 11. A carrier is liable under the Acts for the failure of an employee to connect an 
 uncoupling chain as well as for allowing such a chain to become disconnected, 
 80. 
 
 12. The Acts, while permitting such equipment, do not require that cars shall be 
 equipped with double levers, 81; 
 
 (a) But if double levers are provided, the Acts require that they shall be opera- 
 tive from either side of the cars to which they are attached, 82. 
 
 13. The operation of automatic couplers is a proper subject for expert testimony, 209. 
 (a) The exhibition of model couplers to the jury, merely for the purpose of illus- 
 trating particular defects, is permissible, 210. 
 
 14. Congress, in drafting the Acts, took cognizance of the mechanical difficulties 
 incident to the interchange of couplers, 82. 
 
 15. The use by a railroad company of a switch engine having no uncoupling 
 levers does not constitute a violation of the Acts unless it is shown that such 
 levers are necessary to enable the engine to be coupled automatically by impact 
 and to be uncoupled without the necessity of men going between such engine 
 and the vehicle from which it is to be uncoupled, 82. 
 
 F. GRAB IRONS OB HANDHOLDS. 
 
 1. Provisions of the Law, 83. 
 
 2. The purpose of handholds is to secure the safety of man engaged in coupling 
 and uncoupling cars, 83. 
 
 3. Handholds are required in the ends and sides of all cars to which the Acts 
 apply, 84; 
 
 (a) And the maintenance of only one handhold on each side of a car is not a 
 compliance with the Acts, 84. 
 
 4. Any reasonable substitute for a handhold is a handhold within the purview of 
 the Acts, 85; 
 
 (a) But the necessity of handholds on passenger equipment is not obviated by 
 the presence thereon of air, steam, or signal hose, coupling chains, hand- 
 brake shafts, or other appliances affording some measure of security to 
 employees while coupling and uncoupling cars, 85. 
 
 (b) And the necessity of handholds in the sides near the rear ends of tenders is 
 not obviated by the fact that uncoupling levers extend practically across the 
 rear ends thereof, in such a position and of such a character as to serve as 
 handholds, unless it is shown that handholds, if applied, would not con- 
 tribute to the greater security of employees in coupling and uncoupling cars, 86; 
 
 (c) The determiiiation of what is, and what is not, a handhold within the pur- 
 view of the Acts is within the province of the jury, 208 ; 
 
 (i) The competency of openings in the buffers on the ends of cars, as substi- 
 tutes for handholds, is not a proper subject for expert testimony, where such 
 openings are subject to the personal inspection of the jury, 209. 
 
6 SAFETY APPLIANCE ACTS. 
 
 G. STANDARD HEIGHT OF DRAWBAKS. 
 
 1. Provisions of the Law, 86. 
 
 2. Standard height of drawbars, 86; 
 (a) "Shims" defined, 87. 
 
 3. The Acts prohibit the use of a coupler the drawbar of which is lower than the 
 standard height, even though such coupler is on the front end of a locomotive 
 and is not used after an attempt to use it has been unsuccessful, 87. 
 
 4. If a drawbar is lower than the standard height, it is immaterial whether such 
 condition results from the sagging of the drawbar from the frame or from the 
 sagging of the entire frame, 89. 
 
 5. The delegation to the Interstate Commerce Commission and the American 
 Railway Association of authority to designate the standard height of drawbars 
 is not unconstitutional, 10. 
 
 H. HAND BRAKES. 
 
 1. Provisions of the Law, 89, 
 
 2. "Efficient," as used in the second section of the Act of 1910, defined, 90. 
 I. EXCEPTIONS TO THE APPLICATION OF THE ACTS. 
 
 1. Provisos in the Acts, 90 ; 
 
 (a) "Necessary," as used in the proviso in the Amendment of 1910, defined, 
 91; 
 
 (b) "Nearest available point," as used in the proviso in the Amendment of 
 1910, defined, 92. 
 
 2. The Acts, as amended prior to April 14, 1910, permitted the necessary move- 
 
 ment of defective cars to the nearest point at which repairs might be effected, 
 
 provided they were excluded from commercial use and dissociated from other 
 
 cars commercially employed, 92; 
 (a) But it was never intended by the Acts that a defective car should be removed 
 
 from a repair point without repairs of statutory defects being made, 95 ; 
 
 (i) Nor that a carrier should excuse a failure to repair a statutory defect at the 
 point of its discovery by showing that the car involved was also defective 
 in other respects which could have been repaired only at the point to which 
 the car was moved, 97. 
 
 3. The proviso in the Amendment of 1910 is declaratory of the judicial interpre- 
 tation placed upon the Acts as previously amended, 97. 
 
 4. A defendant carrier must bring itself strictly within the terms of the proviso 
 in order to avail itself of the immunity thereby afforded, 212. 
 
 6. In order to bring itself within the terms of the proviso in the Act of April 14, 
 1910, a carrier seeking to justify the movement of a defective car to a particular 
 point: 
 
 (a) Must establish the necessity of the movement alleged to have been made 
 for the purpose of repair, 98 ; 
 
 (b) And must show that the defect to be repaired was of such a nature that it 
 could not have been repaired at the point of its discovery, 100. 
 
 (c) The necessity of a movement for the purpose of repair is generally a question 
 for the jury, 100; 
 
 6. The proviso in the Act of 1910 does not permit the hauling of defective cars 
 by means of chains instead of drawbars in revenue trains or in association 
 with other cars commercially used unless such defective cars contain live 
 stock or perishable freight, 100. 
 
 7. The proviso in the Act of 1910 has no retrospective application to a violation of 
 the Acts as previously amended, 101. 
 
NATURE AND PURPOSE. 
 
 A. NATURE AND PURPOSE OF THE ACTS. 
 
 1. The Acts are — 
 
 — (a). Beneficent: 
 
 VoelJcer v. Chicago, M. S St. P. Ry, Co., 116 Fed., 867; U. S. v. 
 Chicago Great Western Ry. Co., 162 Fed., 775; Erie R. Co, v. 
 U. S., 197 Fed., 287; Johnson v. Mammoth Vein Coal Co., 114 
 S. W., 722; Lulcen v. Lalce Shore cfe M. S. Ry. Co., 154 111. App., 
 550. See also Lalce Shore <Sg M. S. Ry. Co. v. Benson, 97 N. E., 417. 
 
 —(b). Civil: See Item B-3, p. 19, post, 
 
 — (c). Meritorions: 
 
 U. S. y. Southern Ry. Co., 135 Fed., 122. 
 
 District Court, Southern District of Illinois, March 2, 1905. 
 
 The Act is so highly meritorious, so generous in its purposes, 
 
 so in harmony with the best sentiment of a humane people and a 
 
 progressive government that it appeals strongly to the courts for 
 
 its prompt and vigorous enforcement. — Humphrey, D. J., p. 129. 
 
 —(d). Penal: 
 
 Johnson V. Southern Pacific Co., 117 Fed., 462; U. S. v. Southern 
 Ry. Co., 135 Fed., 122; Z7. S. v. Chicago, M. cfc St. P. Ry. Co., 
 149 Fed., 486; V. S. v. Atchison, T. & S. F. Ry. Co., 150 Fed., 
 442; TJ. S. v. Philadelphia <& R. Ry. Co., 160 Fed. 696; Atlantic 
 Coast Line R. Co. v. U. S., 168 Fed., 175; U. S. v. Chicago, 
 R. I. dc P. Ry. Co., 173 Fed., 684; V. S. v. Oregon Short Line 
 R. Co., 180 Fed., 483; V. S. v. St. Louis S. W. Ry. Co. of Texas, 
 184 Fed., 28; V. S. v. Lehigh Valley R. Co., D. C, E. D. 
 Pennsylvania, Mar. 17, 1908, McPherson, D. J. [unreported]; 
 TJ. S. V. Pennsylvania R. Co., D. C, E. D. Pennsvlvania, Mar. 
 18, 1908, McPherson, D. J. [unreported]. 
 
 — (e). Preventive: 
 
 V. S. V. Chicago, R. 1. cfc P, Ry. Co,, 173 Fed., 684. 
 
 — (f). Remedial: 
 
 Johnson v. Southern Pacific Co., 196 U. S., 1; U. S. v. Chicago, 
 M. & St. P. Ry. Co., 149 Fed., 486; V. S. v. Central of Georgia 
 Ry. Co., 157 Fed., 893; TJ. S. v. Southern Ry. Co., 170 Fed., 
 1014; TJ. S. V. Chicago, R. L c£? P. Ry. Co., 173 Fed., 684; Grayy. 
 Louisville <& N. R.Co., 197 Fed., 874; Snyder v. Southern Ry. 
 Co., C. C, E. D. Tennessee, Jan. 21, 1910, Sanford, D. J. 
 [unreported]. 
 
 2. The essential purpose of the Acts is the protection of the lives and 
 limbs of employees and passengers; 
 
 VoelJcer v. Chicago, M. & St. P. Ry. Co., 116 Fed., 867. 
 
 Circuit Court, Northern District of Iowa, June 16, 1902. 
 
 The statutes, state and federal, requiring railway com- 
 panies to equip their cars with automatic couplers, were not 
 
SAFETY APPLIANCE ACTS. 
 
 enacted to protect the freight transported therein, but for the 
 protection of the life and limb of the employees who were ex- 
 pected to handle these cars. — Shiras, D. J., p. 873. 
 V. S. V. Chicago Great Western By. Co., 162 Fed., 775. 
 District Court, Northern District of Iowa, May 6, 1908. 
 
 This law, gentlemen, is a benficent one, and is intended to 
 
 Erotect the public generally, and persons and propert}' that are 
 eing transported by railroads, and particularly is it intended to 
 protect the life and limbs of employees engaged in the dangerous 
 and hazardous business of operating railroad trains, and railroad 
 companies engaged in such commerce are required to strictly 
 comply with its provisions and obey this law. — Eeed, D. J., p. 778. 
 Z7. 8. V. Atlantic Coast Line R. Co., 214 Fed., 498; La Mere v. Ry. 
 Trans. Co. of Minneapolis, 145 N. W., 1068. 
 
 — (a). And the distribution of the economic loss arising from accidents; 
 St. Louis, L M. db S. Ry. Co. v. Taylor, 210 U. S., 281. 
 Supreme Court, May 18, 1908. 
 
 It is quite conceivable that Congress, contemplating the 
 inevitable hardship of such injiu-ies, and hoping to diminish the 
 economic loss to the community resulting from them, should 
 deem it wise to impose their biu-dens upon those who could meas- 
 urably control their causes, instead of upon those who are in the 
 main helpless in that regard. — Moody, Justice, pp. 295-296. 
 Brinkmeier v. Missouri Pacific Ry. Co., 105 Pac, 221. 
 
 3. The purpose of the Amendment of 1903 was to enlarge the scope of 
 the original Act. 
 
 Chicago (& N. W. Ry. Co. v. U.S., 168 Fed., 236. 
 
 (Srcuit Court of Appeals, 8th Circuit, March 10, 1909. 
 
 The amendment of 1903, 32 Stat., 943, had three objects: 
 First, to extend the Safety Appliance Act to traffic in the District 
 of Columbia and the Territories ; second, to remove the doubt as 
 to the meaning of the term ''cars" as used in the Act, created 
 by the decision of this court in the Johnson Case, 117 Fed. 
 462 ; third, to enlarge the scope of the Safety Appliance Act, so as 
 to include not only '' the cars, locomotives, tenders, and similar 
 vehicles,'' etc., therein referred to, but also to embrace "all other 
 locomotives, tenders, cars and similar vehicles used in connection 
 therewith." — Amidon, D. J., p. 237. 
 
 Southern Ry. Co. v. Crockett, 234 U. S., 725. See also Southern Ry. 
 Co. V. V. S., 222 U. S., 20; U. S. v. Chicago & N. W. Ry. Co., 
 157 Fed., 616. 
 
CONSTRUCTION AND INTERPRETATION. 
 
 B. CONSTRUCTION AND INTERPRETATION OF THE ACTS. 
 
 1. The Acts are constitutional: 
 
 Adair Y. U. S.,20SV. S., 161. 
 
 Supreme Court, January 27, 1908. 
 
 In this connection we may refer to Johnson v. Railroad ^ 
 196 U. S., 1, relied on in argument, which case arose under 
 the Act of Congress of March 2, 1893 [27 Stat., 531, c. 196]. 
 That Act required carriers engaged in interstate commerce to 
 equip their cars used in such commerce with automatic couplers 
 and continuous brakes, and their locomotives with driving- 
 wheel brakes. But the Act upon its face showed that its object 
 was to promote the safety of employees and travelers upon rail- 
 roads; and this court sustained its validity upon the ground 
 that it manifestly had reference to interstate commerce and was 
 calculated to subserve the interests of such commerce by afford- 
 ing protection to employees and travelers. It was held that 
 there was a substantial connection between the object sought to 
 be attained by the Act and the means provided to accomplish 
 that object. — Harlan, Justice, p. 177. 
 
 Southern By. Co. v. U. S., 222 U. S., 20. 
 Supreme Court, October 30, 1911. 
 
 We come then to the question whether these Acts are within 
 the power of Congress under the commerce clause of the Consti- 
 tution, considering that they are not confined to vehicles used 
 in moving interstate traffic, but embrace vehicles used in moving 
 intrastate traffic. The answer to this question depends upon 
 another, which is: Is there a real or substantial relation or con- 
 nection 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 move- 
 ment? Or, stating it in another way: Is there such a close or 
 direct relation or connection between the two classes of traffic, 
 when moving over the same railroad, as to make it certain that 
 the safety of the interstate traffic and of those who are employed 
 in its movement will be promoted in a real or substantial sense by 
 applying the requirements of these Acts to vehicles used in 
 moving the traffic which is intrastate as well as to those used in 
 moving that which is interstate ? If the answer to this question, 
 as doubly stated, be in the affirmative, then the principal ques- 
 tion must be answered in the same way. And this is so, not 
 because Congress possesses any power to regulate intrastate com- 
 merce, as such, but because its power to regulate interstate com- 
 merce is plenary and competently may be exerted to secure the 
 safety of the persons and property transported therein and of 
 those who are employed in such 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 commerce. * * * These 
 
10 SAFETY APPLIANCE ACTS. 
 
 practical considerations make it plain, as we think, that the ques- 
 tions before stated must be answered in the affirmative. — Van De- 
 vanter, Justice, pp. 26-27. 
 'Chicago Junction Ry. Go. v. King, 222 U. S., 222; Plummer v. 
 Northern Paaific Ry. Co., 152 Fed., 206; Kelley v. Great North- 
 ern Ry. Co., 152 Fed., 211; U. S. v. Atlantic Goast Line 
 R. Co., 153 Fed., 918; U. S. v. Southern Ry. Co., 164 Fed., 347; 
 V. S. V. Wheeling <& L. E. R. Co., 167 Fed., 198; Wahash R. Go. 
 Y. U. S. and Elgin, J. & E. Ry. Go. v. TJ. S., 168 Fed., 1 ; U.S. v. 
 Boston & M. R. Go., 168 Fed., 148; Atlantic Goast Line R. Go. v. 
 TJ. S., 168 Fed., 175; Chicago Junction Ry . Go. v. King, 169 Fed., 
 372; Chicago, R. I. c& P. Ry. Go. v. Brown, 185 Fed., 80; Phila- 
 delphia & R. Ry. Go. V. Winkler, 56 Atl., 112; TJ. S. v. Balti- 
 more cfc O. R. Co., D. C, N. D. West Virginia, Jan. 18, 1909, 
 Dayton, D. J. [unreported]; TJ. S. v. Pennsylvania R. Co., 
 D. C, W. D. Pennsylvania, Nov. 3, 1909, Orr, D. J. [unreported]; 
 Snyder v. Southern Ry. Go., C. C., E. D. Tennessee, Jan. 21, 
 1910, Sanford, D. J. [unreported]. 
 
 (a). The delegation to the Interstate Commerce Commission and the 
 American Railway Association of authority to designate the 
 standard height of drawbars is not unconstitutional. 
 St. Louis, I. M. cfe S. Ry. Co. v. Taylor, 210 U. S., 281. 
 Supreme Court, May 18, 1908. 
 
 It is contended that there is here an unconstitutional delega- 
 tion of legislative power to the Railway Association and to the 
 Interstate Commerce Commission. This is clearly a Federal 
 question. Briefly stated, the statute enacted that after a date 
 named only cars with drawbars of uniform height should be used 
 in interstate commerce, and that the standard should be fixed by 
 the Association and declared by the Commission. Nothing need 
 be said upon this question except that it was settled adversely 
 to the contention of the plaintiff m error in Buttfield v. Stranahan, 
 192 U. S., 470, a case which in principle is completely in point. 
 And see Union Bridge Co. v. U. S., 204 U. S., 364, where the cases 
 were reviewed. — Moody, Justice, p. 287. 
 
 2. The Acts impose upon the carriers subject to their terms an abso- 
 lute and unconditional duty, not only, in the first instance, to 
 provide the requisite equipment, but, at all times thereafter and 
 under all circumstances, to maintain appliances in a condition 
 of repair: 
 St. Louis, 7. M. c& S. Ry. Co. v. Taylor, 210 U. S., 281. 
 Supreme Court, May 18, 1908. 
 
 The Congress, not satisfied with the common-law duty and 
 its resulting liability, has prescribed and defined the duty by 
 statute. We have nothing to do but to ascertain and declare 
 the meaning of a few simple words in which the duty is described. 
 It is enacted that ''no cars, either loaded or unloaded, shall be 
 used in interstate traffic which do not comply with the standard.' ' 
 There is no escape from the meaning of these words. Explana- 
 tion can not clarify them, and ought not to be employed to con- 
 fuse them or lessen their significance. The obvious purpose of 
 
CONSTRUCTION AND INTERPRETATION. H 
 
 the Legislature was to supplant the qualified duty of the common 
 law with an absolute duty deemed by it more just. — Moody^ 
 Justice, pp. 294-295. 
 
 Chicago, B. & Q. Ry. Co. v. U. S., 220 U. S., 559. 
 Supreme Court, May 15, 1911. 
 
 In view of these facts, we are unwilling to regard the ques- 
 tion as to the meaning and scope of the Safety Appliance Act, so 
 far as it relates to automatic couplers on trams moving in 
 interstate traffic, as open to further discussion here. If the court 
 was wrong in the Taylor Case [210 U. S., 281] the way is open for 
 such an amendment of the statute as Congress may, in its discre- 
 tion, deem proper. This court ought not now disturb what has 
 been so widely accepted and acted upon by the courts as having 
 been decided in that case. A contrary course would cause infinite 
 imcertainty, if not miscliief, in the administration of the law in 
 the federal courts. To avoid misapprehension, it is appropriate 
 to say that we are hot to be understood as questioning the sound- 
 ness of the interpretation heretofore placed by this court upon 
 the Safety Appliance Act. We only mean to say that until Con- 
 gress, by an amendment of the statute changes the rule an- 
 nounced in the Taylor Case, this court will adhere to and apply 
 that rule. -^Harlan, Justice, p. 577. 
 
 DelJc V. St. Louis & S. F. R. Co., 220 U. S., 580. 
 Supreme Court, May 15, 1911. 
 
 The construction of the statute, adopted by a majority of 
 the Circuit Court of Appeals to the effect that the Act did not 
 impose upon the carrier an absolute duty to provide and keep 
 proper coupler at all times and under all circumstances, but was 
 bound only to the ext: nt of its best endeavor to meet the require- 
 ments of the statute, has been rejected by this court in Chicago, 
 B. dc Q. Ry. Co. v. U. S. [220 U. S., 559], just decided, and on the 
 authority of that case we hold that the Circuit Court of Appeals 
 erred in the particular mentioned. — Harlan, Justice, pp. 586-587. 
 
 U. S. V. Great Northern Ry. Co., 150 Fed., 229; Plummer v. North- 
 ern Pacific Ry. Co., 152 Fed., 206; TJ. S. v. Southern Pacific 
 Co., 154 Fed., 897; U. S. v. Philadelphia cfc R. Ry. Co., 162 Fed., 
 403; U. S. V. Philadelphia & R. Ry. Co., 162 Fed., 405; TJ. S. v. 
 Pennsylvania R. Co., 162 Fed., 408; U. S. v. Lehigh Valley R. 
 Co., 162 Fed., 410; U. S. v. Atchison, T. & S. F. Ry. Co., 163 
 Fed., 517; U. S.y. Denver & R.G.R. Co., \mYQdi.,bl^; Chicago, 
 M. cfc St. P. Ry. Co. V. TJ. S., 165 Fed., 423; Donegan v. Balti- 
 more & N. Y. Ry. Co., 165 Fed., 869; U. S. v. Ene R. Co., 166 
 Fed., 352; V. S. v. Wheeling & L. E. R. Co., 167 Fed., 198; U. 
 S. V. Atchison, T. & S. F. Ry. Co., 167 Fed., 696; TJ. S. v. South- 
 ern Pacific Co., 167 Fed., 699; Atlantic Coast Line R. Co. v. TJ. 8., 
 168 Fed., 175; TJ.S.v.Southern Pacific Co., IQ9 Fed., ^07; U.S. v. 
 Baltimore c& 0. R. Co., 170 Fed., 456; Chicago, B. cfc Q. Ry. Co., 
 V. U. S., 170 Fed., 556: U. S. v. Southern Ry. Co., 170 Fed., 
 1014; Atchison, T. & S. F. Ry. Co., v. U. S., 172 Fed., 1021; 
 NorfolJc db W. Ry. Co. v. U. S., 177 Fed., 623; Johnson v. Great 
 Northern Ry. Co., 178 Fed., 643; Siegel v. New YorJc Central d; 
 
12 SAFETY APPLIANCE ACTS. 
 
 H, R, R. Co., 178 Fed., 873; Galveston, H. cfe ^S'. A. Ry. Co. v. 
 V.S., 183 Fed., 579; Norfolk & W. Ry. Co. v. U. S., 191 Fed., 
 302; Nichols v. Chesapeake <& 0. Ry. Co., 195 Fed., 913; Galves- 
 ton, H, cfe S. A. Ry. Co. v. U. S., 199 Fed., 891; U. S. v. Pere 
 Marquette R. Co., 211 Fed., 220; U. S. v. Trinity & B. V. Ry, 
 Co., 211 Fed., 448 ; Philadelphia cfc R. Ry. Co. v. Winkler, 56 Atf., 
 112; Luken v. Lake Shore <& M. 8. Ry. ^Co., 94 N. E., 175; (7ar- 
 sonv. Southern Ry. Co., 4:6 S. E., 525; Montgomery y. Carolina cfc 
 N. W. R. Co., 80 S. E., 83; Brinkmeier v. Missouri Pacific Ry. 
 Co., 105 Pac, 221; St. Louis, L M. <& S. Ry. Co. v. Neal, 78 
 S. W., 220; St. Louis, 1. M. cfc S. Ry. Co. v. York, 123 S. W., 
 376; Galveston H. & S. A. Ry. Co. v. Kurtz, 147 S. W., 658; 
 St. Louis cfc S. F. R. Co. v. Conarty, 155 S. W., 93; NashviUe, 
 C. <& St. L. Ry. Co. V. Henry, 164 S. W., 310; Burho v. Minne- 
 apolis <& St. L. Ry. Co., 141 N. W., 300; Popplar v. Minneapolis, 
 St. P. & S. S. M. Ry. Co., 141 N. W., 798; WiUett v. Illinois 
 Central R. Co., 142 N. W. 883; Steams v. Chicago, R. I. cfe 
 P. Ry. Co., 148 N. W., 128; Atlantic Coast Line R. Co. v. 
 Whitney, 61 So., 179; Luken v. Lake Shore (& M. S. Ry. Co., 154 
 111. App., 550; U. S. v. Baltimore cfc 0, R. Co., D. C, N. D. West 
 Virginia, Jan. 18, 1909, Dayton, D. J. [unreported]; U. S. v. 
 Southern Ry. Co. and U. S. v. Atlantic Coast Line R. Co., D. C, D. 
 South Carolina, Feb. 24, 1909, Brawley, D. J. [unreported]; U. S. 
 V. Pennsylvania R. Co., D. C, W. D. Pennsylvania, Nov. 3, 1909, 
 Orr, D. J. [unreported]; U. S. v. Southern Pacific Co., D. C, D. 
 Nevada, Nov. 24, 1909, Farrington, D. J. [unreported]; U. S. v. 
 Northern Pacific Ry. Co., D. C, W. D., Washington, Dec. 6, 1913, 
 Cushman, D. J. [unreported]. See also Z7. S. v. Illinois Central 
 R. Co., 177 Fed., 801. 
 
 Per Contra: 
 
 Johnson V. Southern Pacific Co., 117 Fed., 462; U. S. v. Illinois Central R.Co., 156 
 Fed., 182; St. Louis & S. F. R. Co. v. Delk, 158 P^ed., 931; U. S. v. Illinois 
 Central R. Co., 170 Fed., 542; Norfolk & W. Ry. Co. v. Hazelrigg (1st appeal), 170 
 Fed., 551; Missouri Pacific Ry. Co. v. Brinkmeier, 93 Pac, 621; U. S. v. Baltimore 
 & 0. R. Co., D. C, S. D. Ohio, June 10, 1909, Sater, D. J. [unreported]; U. 
 S. V. Baltimore & 0. R. Co. and U. S. v. Toledo Terminal R. Co., D. C, N. D. 
 Ohio, June 15, 1909, Cochran, D. J. [unreported]. See also *Galveston, H. & 
 S. A. Ry. Co. V. U. S., 199 Fed., 891. 
 
 *In the case of GalveMon, H. & S. A. Ry. Co. v. U. S., 199 Fed., 891, decided by 
 the Circuit Court of Appeals for the 5th Circuit, October 7, 1912, the following is to be 
 noted: 
 
 Involving the construction of the Safety Appliance Acts, two classes of suits, one for injury to employees 
 and the other to penalize the railroads for noncompliance, have been passed upon by the courts. In the 
 first it has been substantially settled that the duty on the railroads was absolute, and noncompliance with- 
 out excuse, St. Louis, I. M. & S.Ry. Co. v. Taylor, 210 U. S.,281. In the other class, decisions have 
 been conflicting; the Supreme Court not having passed on the precise question involved. 
 
 In thus distinguishing between actions for personal injury and suits for the re- 
 covery of statutory penalties, the decision of the Supreme Court in the Burlington 
 Case [220 U. S., 559], decided May 15, 1911, was apparently overlooked. In this 
 connection, however, it is to be noted that in a later decision by the same appellate 
 court, U. S. V. Trinity & B. V. Ry. Co., 211 Fed., 448, in which the Burlington Caseis 
 cited with approval, it is expressly held that "the duty to have and maintain in good 
 order the safety appliances required is a positive duty imposed on the carrier by the 
 statute." See Item B-5, p. 24, post. 
 
CONSTRUCTION AND INTERPRETATION. 13 
 
 (^a). Diligence in the discovery and repair of defects is not a defense 
 to prosecutions under the Acts : 
 
 WahasJi R. Co. v. U. S„ 172 Fed., 864. 
 
 Circuit Court of Appeals, 7th Circuit, eJune 23, 1909. 
 
 The second question is raised by the following instruction 
 to the jury, to which exception was duly entered: ^'* * * 
 The mere fact that the defendant had used diligence or care to 
 keep those cars in a reasonably safe condition is not a question 
 before you. That is no defense to this suit. This statute is 
 commanding, and requires the defendant at its peril to keep 
 these couplers in such condition so that the men whose business 
 it is to couple them will not be required to go between the cars 
 to do it; * * *." 
 
 Since this case was brought here and the briefs filed, this 
 question has been disposed of against the contentions of the 
 plaintiff in error in the case of St. Louis, I. M. <& S. Ry. Co. v. 
 Taylor, 210 U. S., 2S1. — Grosscup, C J., pp. 865-866. 
 
 U. S. V . Southern Pacific Co., 169 Fed., 407. 
 
 Circuit Court of Appeals 8th Cncuit, April 3, 1909. 
 
 Since the decision by the Supreme Court of the case of St. 
 Louis, L M. <& S. Ry. Co. v. Taijlor, 210 U. S., 281, we have 
 uniformly held that the Safety Appliance Law imposed an abso- 
 lute duty upon carriers of interstate commerce to equip and 
 maintain their engines and cars used m or in connection with that 
 service in the way prescribed by that law, and that the perform- 
 ance of this duty is not excused by the exercise of reasonable 
 care. — Adams, C. J., p. 409. 
 
 St Louis, L M. cfc S. Ry. Co. v. Taylor, 210 U. S., 281 ; Chicago, B. db 
 Q.Ry.Co.y. U. S. ,220V. S.,559; DeTkY.St.Louis&S. F.R.Co., 
 220 IT. S., 580; V. S. v. Southern Ry. Co., 135 Fed., 122; U. S. v. 
 SouthernPadfic Co., 154:Fed., S97 ; U.S. v. Chicago, B.SQ.Ry. Co., 
 156 Fed., 180; U. S. v. Philadelphia <Sb R. Ry. Co., 160 Fed., 696; 
 V. S. V. Louisville & N. R. Co., 162 Fed., 185; TJ. S. v. Atchison, 
 T. & S. F. Ry. Co., 163 Fed., 517; V. S. v. Denver & R. G. R. 
 Co., 163 Fed., 519; Chicago, M. cfc St. P. Ry. Co. v. V:S., 165 
 Fed., 423; V. S. v. Wheeling & L. E. R. Co., 167 Fed., 198; U. S, 
 V. Southern Pacific Co., 167 Fed., 699; Chicago Junction Ry. Co. 
 V. King, 169 Fed., 372; U.S. v. Baltimore & 0. R. Co., 170 Fed., 
 456; Chicago, B. & Q. Ry. Co. v. U. S., 170 Fed., 556; U. S. v. 
 SouthemRy. (7o., 170 Fed., 1014; U.S. v. Oregon ShoH Line R. Co., 
 180 Fed., 483; U. S. v. Wahash R. Co., D. P., E. D. Illinois, Nov. 
 19, 1907, Wright, D. J. [unreported]; U. S. v. Philadelphia dc R. 
 Ry. Co., D. C, F. D. Pennsylvania, Mar. 17, 1908, McPherson, 
 D. J. [unreported]; U. S. v. Pennsylvania R. Co., D. C, E. D. 
 Pennsylvania, Mar. 18, 1908, McPherson, D. J. [unreported]; 
 U. S. V. Atchison, T. <& S. F. Ry. Co., D. C, S. D. California, 
 June 6, 1908, Wellborn, D. J. [unreported]; U. S. v. Baltimore <& 
 0. R. Co., D. C, N. D. West Virginia, Jan. 18, 1909, Dayton, 
 D. J. [unreported]; U. S. v. Southern Ry. Co., and U. iS. v. 
 Atlantic Coast Line R. Co., I). (\, D. South Carolina, Feb. 24, 
 1909, Brawley, D. J. [unreported]. 
 
^4 SAFETY APPLIANCE ACTS. 
 
 Per Contra: 
 
 U. 8. V. Illinois Central R. Co., 153 Fed., 182; St. Louis & S. F. R. Co. v. 
 Delk, 158 Fed., 931; U. S. v. Illinois Central R. Co., 170 Fed., 542; Norfolk <fc 
 W. Ry Co. V. Hazelrigg (1st appeal), 170 Fed.. 551; U. S. v. Baltimore & 0. R. 
 Co.. D. C, S. D. Ohio. .Tune 10, 1909, Sater, D. J. [unreported]; U. S. v. Balti- 
 more & 0. R. Co., and U. S. v. Toledo Terminal R. Co., D. C, N. D. Ohio, 
 June 15, 1909, Cochran, D. J. [unreported]. 
 
 — (i). But the exercise of sucli diligence on tlie part of carriers will, in 
 great measure, obviate occasion for prosecution: 
 U. S. V. Indiana Harbor R. Co., 157 Fed., 565. 
 
 District Court, Northern District of Illinois, November 20, 1906. 
 Without regard to what the rule of liability may be, the 
 exercise of the greatest care in the matter of equipment and 
 maintenance will keep coupling appliances in such condition as 
 to exclude, except in very remote instances, the necessity of 
 prosecutions for the enforcement of the Act. — Landis, D. J., 
 pp. 566-567. 
 
 (b). Prior knowledge on tbe part of carriers, with respect to the exist- 
 ence of defects, is not an element of violations of the Acts : 
 U. S. V. Trinity cfc B. V. Ry. Co., 211 Fed., 448. 
 
 Circuit Court of Appeals 5th Circuit, December 1, 1913. 
 
 Bear in mind that under the Safety Appliance Act of 1 893, 
 and the amendments, ignorance of defects does not excuse. — Call, 
 D. J., p. 452. 
 Chicago, B. & Q. Ry. Co. v. U. S., 170 Fed., 556. 
 
 Circuit Court of Appeals, 8th Circuit, April 24, 1909. 
 
 Whether a defendant carrier knew its cars were out of order 
 or not is immaterial. Its duty was to know they were in order 
 and kept in order at all times. — Adams, C. J., p. 558. 
 U. S. y. Southern Pacific Co., 154 Fed., 897. 
 
 District Court, District of Oregon, April 1, 1907. 
 
 The railroad companies are charged, as I have shown, with 
 the duty of hauling only such cars as are provided with automatic 
 couplers in suitable repair, so as to be operative without the 
 necessity of employees going between the cars ; and it would go 
 far to subvert the law and the purpose thereof if they were per- 
 mitted to say that they had no knowledge of the defect, and that 
 therefore they were not liable under the Act. The companies 
 must ascertain for themselves and at their peril whether or not 
 they have taken up or are hauhng cars with defective couplers. 
 Their intention to do right does not relieve them. [Z7. S. v. 
 Great Northern Ry Co., 150 Fed., 229.] I hold, therefore, that want 
 of knowledge of the defects on the part of the defendant com- 
 pany does not constitute a defense. — Wolverton, D. J., p. 900. 
 U. 8. V. Chicago, M. & St. P. Ry. Co., 149 Fed., 486; U.S. 
 V. Chicago B. cfc Q. Ry. Co., 156 Fed., 180; V. S. v. Louisville & 
 N. R. Co., 162 Fed., 185; U. S. v. Chicago Great Western Ry. Co., 
 162 Fed., 775: U. S. v. Southern Pacific Co., W7 ¥ed.,Q99; Nash- 
 ville G. & St. L. Ry Co. v. Henry, 164 S. W., 310; U. S. v. El 
 Paso cfc S. W. R. Go. et al, D. C., W. D. Texas, Apr. 10, 1907, 
 Maxey, D. J. [unreported]; U. S. v. Lehigh Valley R. Go. D. C.,. 
 
CONSTRUCTION AND INTERPRETATION. 15 
 
 E. D. Pennsylvania, Mar. 17, 1908, McPherson, D. J. [unre- 
 ported]; TJ. S. V. Pennsylvania R. Co., D. C, E. D. Pennsylvania, 
 Mar. 18, 1908, McPherson, D. J. [unreported]; U. S. y. Atchi- 
 son, T. & S. F. Ry. Co., D. C, S. D. California, June 6, 1908, 
 Wellborn, D. J. [unreported]; U. S. v. Atchison, T. <& S. F, Ry. 
 Co., D. C, D. Arizona, July 17, 1908, Sloan, D. J. [unreported]. 
 
 Per Contra: 
 
 U. 8. V. Atchison, T. & S, F.fRy, Co., 5l501Fed.,5442;lZ7.l>S.5v.!/ZZmow Central 
 E. Co., 156 Fed., 182. 
 
 (c). A willful intention, on the part of carriers, to disregard the Acts, 
 is not an element of their violation : 
 Chicago, B. d) Q. Ry. Co. v. U. S., 170 Fed., 556, 
 
 Circuit Court of Appeals, 8th Circuit, April 24, 1909. 
 
 Tiiis was by clear and unequivocal language of the law- 
 maker made an absolute duty not dependable upon the exer- 
 cise of diligence or the existence of any wrong intent on the part 
 of the railroad companies. — Adams, C. J., p. 558. 
 V. S, V. Southern Pacific Co., 154 Fed., 897. 
 
 District Court, District of Oregon, April 1, 1907. 
 
 The companies must ascertain for themselves, and at their 
 peril, whether or not they have taken up or are hauling cars with 
 defective couplers. Their intention to do right does not relieve 
 them. — Wolverton, D. J., p. 900. 
 U, S. V. Baltimore db 0. R. Co., 170 Fed., 456. 
 
 District Court, Western District of Pennsylvania, May 17, 1909. 
 I say to you that the matter of willful negligence dees not 
 enter into this case at all; because the law makes it an absolute, 
 imperative duty upon the railroad company to keep its cars so 
 equipped. — Orr, D. J., p. 458. 
 Luken v. LaTce Shore & M. S. Ry Co., 94 N. E., 175; U. S, v. El Paso 
 cfe S. W. R. Co. et al, D. C, W. D. Texas, Apr. 10, 1907, 
 Maxey, D. J. [unreported]; U. S. v. Southern Ry. Co., D. C, D. 
 South Carolina, Feb. 24, 1909, Brawley, D. J. [imreported]. 
 
 (d). The fact that it may be inconvenient for a carrier to observe 
 the Acts does not excuse their violation : 
 
 Chicago Junction Ry. Co. v. King, 169 Fed., 372. 
 
 Circuit Court of Appeals, 7th C ircuit, February 3, 1909. 
 Now, if the exercise of reasonable care in maintaining the 
 statutory standard of equipment will not exempt a car move- 
 ment as being beyond the spirit, and therefore the reach, of the 
 statute [citing cases], much less will mere convenience be ac- 
 cepted as an excuse. — Balcer, C. J., p. 377. 
 TJ. S. V. Southern Pacific Co., 169 Fed., 407. 
 
 Circuit Court of Appeals, 8th Circuit, April 3, 1909. 
 
 Conformity to the requirements of the law, as so inter- 
 preted, it must be admitted, will often be inconvenient and 
 sometimes impracticable; but Congress had before it for con- 
 sideration the important question of promoting the safety of 
 employees and travelers upon railroads, and in the accomplish- 
 
16 SAFETY APPLIANCE ACTS. 
 
 ment of its purpose it may well be that the legislative mind con- 
 sidered the inconvenience and impracticability of a literal com- 
 pliance at times with the law, and the consequent infliction of 
 the light penalties imposed for its violation to be of little moment 
 compared with the greater importance of protecting life, limb 
 and property. — Adams, C. J., p. 409. 
 
 V. S. V. Southern Pacific Co., [unreported]. 
 
 District Court, District of Nevada, November 24, 1909. 
 The company can not discriminate between repair points 
 or haul a car defective, as to safety appliances, from one repair 
 point to another more fully equipped tor makmg such repairs, 
 and where they might be more conveniently made. Mere con- 
 venience can not be accepted as an excuse, and the movement 
 of such defective car from one repair point to another is beyond 
 the spirit, and therefore the reach, of the law. — Farrington, D. J. 
 
 Siegel v. New Yorlc Central & H. R. R. Co., 178 P^ed., 873; U. S. 
 V. Grand Trunk Ry. Co. of Canada, 203 Fed., 775: V. S. v. Pere 
 Marquette R. Co., 211 Fed., 220; U. S. v. Northern Padfic Ry Co., 
 D. C, W. D. Washington, Dec. 6, 1913, Cushman, D. J. [unre- 
 ported]. 
 
 (e). The absolute duty of carriers under the Acts is not to be evaded 
 by assignment or otherwise; 
 Philadelphia & R. Ry. Co. v. V. 8., 191 Fed., 1. 
 
 Circuit Court of Appeals, 3rd ( ircuit, November 6, 1911. 
 The fact, if it be a fact, that in this case the inspection of 
 the cars was made by the servants of the C entral Railroad of 
 New Jersey, can not relieve the defendant from the liability 
 imposed by the Act. It can not by contract dispense with any 
 care required of it by law, and the most that could be said of such 
 a situation would be that it had voluntarily made the inspectors 
 of the other company its own. — Gray, C. J., p. 4. 
 Chicago Junction Ry. Co. v. King, 169 Fed., 372. 
 
 Circuit Court of Appeals, 7th Circuit, February 3, 1909. 
 
 Upon the carrier the statute lays the duty of seeing to it 
 that no oars are hauled or used on its line that are not equipped 
 according to the statutory requirements. This direct statutory 
 duty can not be evaded by assignment or otherwise. — Baker, 
 C. J., p. 378. 
 
 — (i). And the decision of a conductor as to the disposition of a defect- 
 ive car is, in effect, the decision of the carrier by which he is 
 employed ; 
 Chicago Junction Ry. Co. v. King, 169 Fed., 372. 
 Circuit Court of Appeals, 7th K ircuit, February 3, 1909. 
 
 This direct statutory duty can not be evaded by assignment 
 or otherwise. Therefore the act of the conductor who had charge 
 of the train in deciding what should be done with the defective 
 • car was the act of the defendant. — Baker, C. J., p. 378. 
 
CONSTRUCTION AND INTERPRETATION. 17 
 
 (f). A carrier is liable under the Acts for the defective condition of a 
 safety appliance, even though the deliberate act of an employee 
 may have rendered it inoperative or inefficient ; 
 U. S. V. Southern Pacific Co., 167 Fed., 699. 
 
 District Court, Northern District of California, December 4, 1908. 
 
 You are instructed that the law lays an unqualified duty 
 upon a railroad company to keep its coupling devices in a certain 
 prescribed condition, and if an employee of such company delib- 
 erately puts such devices in another condition, which condition 
 the law undertakes to prevent, then the company is liable to 
 respond, under the penalty, for the unlawful act of the employee, 
 and if you believe from the evidence that the knuckle was 
 removed from this car for the purpose of chaining it to another 
 car, and that the car was so hauled in interstate traffic in that 
 condition, and in that condition it would be necessary for a man 
 to pass between the end of that car and an adjacent car in order to 
 couple and uncouple them, your verdict should be for the 
 Government. — De Haven, D. J., pp. 701-702. 
 U. S. V. Cincinnati, H. <& D. R, Co., [unreported]. 
 
 District Court, Northern District of Ohio, June 24, 1908. 
 
 Where an act lays the unqualified duty upon a railroad com- 
 pany to keep its coupling devices in a certain condition and one 
 of its employees deliberately puts it in another condition, which 
 is a condition that the law undertakes to prevent, then the cor- 
 poration is required to respond, under this penalty, for the unlaw- 
 ful act of its employees. * * * 
 
 If I catch the spirit of this law as that spirit has been declared 
 especially in this latest case decided by the Supreme Court on the 
 18th of May [St. Louis, I. M. & S. Ry. Co. v. Taylor, 210 U. S., 281], 
 then certainly it must be said that the fact that the condition in 
 which the lever which ought to be attached to a coupling device 
 is found is due to the willful act of an employee, yet since the 
 result is the failure to perform an unquaUfied duty laid upon the 
 railroad company by Congress it must be said to be a violation of 
 the law. — Tayler, D.J. 
 But see Galveston, E. cfc S. A. Ry Co. v. Kurtz, 147 S. W., 658. 
 
 — (i). But no violation of the Acts results from the failure of an 
 employee efficiently to operate equipment, provided such equip- 
 ment is actually operative; 
 U. S. V. niinois Central R. Co., 156 Fed., 182. 
 
 District Court, Western District of Kentucky, November 1, 1907. 
 The Act requires equipment, and, although there is no 
 express language to that efiect, the Act must be construed to 
 mean equipment which, if there, is capable of being operated; 
 but no penalty is imposed if, being there, it is not in fact efficiently 
 operated by those in charge of the train. Equipment only is the 
 required thing, and not the proper manipulation of that equip- 
 ment by the employees. — Evans, D. J., p. 193. 
 But see Gilbert v. Burlington, C. R. & N. Ry.'Co,, 128 Fed., 529; 
 Johnston v. Chicago Great Western Ry. Co., 164 S. W., 260. 
 50611—15 2 
 
18 SAFETY APPLIANCE ACTS. 
 
 (g) . Safety appliances designed to secnre compliance with the Acts must 
 be operative. 
 
 Norfolk & W. Ry. Oo. v. LI S., 177 Fed., 623. 
 
 Circuit Court of Appeals, 4th Circuit, March 4, 1910. 
 
 On the other hand, there is no restriction upon the placing 
 of two such levers, one on oa<:*h side, on the end of any or all its 
 cars, if the companies desire or deem it conducive of more effec- 
 tive operation of the coupling automatically by impact without 
 the necessity of men going betw^een the ends of the cars. But 
 while this is true, these levers, whether one or more, become 
 parts of the coupling device itself, and we think a fair construc- 
 tion of the statute requires us to hold that the device itself must 
 be in such repair as to be capable of operation, and if the levers 
 furnished to operate it, whether one or two at the end of the 
 car, should, as such parts of it, be kept in condition to operate 
 it; that, if there be two, one on each side of the end of a car, 
 and one be maintained in a condition capable of operation and 
 the other not, the latter is calculated only to deceive the em- 
 ployee and under some conditions perhaps create a necessity, 
 m other conditions at least a temptation, to be negligent and 
 step between the care to uncouple them by hand. The defective 
 lever has no business there and should be either made operative 
 or taken away, as it renders, in the true sense of the statute, the 
 couplmg device of which it is a part, defective. — Dayton, D. J., 
 p. 627. 
 
 See also: 
 
 Chicago, M. <& P. S. Ry. Co. v. U. S., \m Fed., 882. 
 Circuit Court of Appeals, 9th Circuit, May 6, 1912. 
 
 It may be true that no reasonably prudent railroad employee 
 would have attempted to couple to tJie front end of the loco- 
 motive with knowledge of its condition, but that fact does not 
 avoid the violation of the statute. The defective drawbar 
 remained a danger and a menace, and when all is said, the fact 
 remains that its use in that condition was prohibited. [Citing 
 V. S. V. Denver & R. G.R. Co., 163 Fed., 519, and other cases.] We 
 are referred to WahasJiR. Co. v. U. S., 172 Fed., 864, as authority 
 for the proposition that a locomotive engine used in interstate 
 commerce need not necessarily have an automatic coupler at both 
 ends. The court in that case held there was no violation of 
 the Safety Appliance Act in the use of an engine which had been 
 originally equipped with, automatic couplers at the A-end and the 
 B-end, but thereafter the lock-chain had been disconnected and 
 the knuckle removed from the coupler at the B-end, leaving that 
 coupler in such condition that no other car could be coupled 
 thereto or uncoupled therefrom, and where it appeared that the 
 coupler at the A-end was the only one used at the time in question 
 in moving interstate traffic. While with all respect for that court 
 we are inclined to doubt the correctness of that ruling, we find it 
 sufficient for the present case to point to the difference-between 
 that case and this. There the coupler had been disconnected and 
 the knuckle taken out ''in pursuance of a purpose that it should 
 not be used." In the case at bar the plaintiff in error was found 
 
CONSTRUCTION AND INTERPRETATION. 1^ 
 
 using a defective coupler at one end of the engine, and thereafter 
 having revei-sed the engine, was found using the other end for 
 the purpose of (ransforring cars. Nothing was shown indicative 
 of a purpose to refrain from using both ends of the locomotive 
 for coupling, and no portion of the coupling device was removed. 
 That device remained as it was before, a trap to the unwary. 
 The law may not require that a locomotive shall be equipped with 
 couplers at both ends, but it does require that, if a locomotive is 
 so equipped, the couplers shall be such as to comply with the 
 Safety AppUance Act.— Gilbert, 0. J., pp. 884-885. 
 U. S. V. OJiicago, M. d; P. S. Ry. Go. [unreported]. 
 District Court, District of Montana, May 2, 1911. 
 
 As I view the law, it is illegal for a railroad company to use 
 an engine in the condition in which this onghie undoubtedly was, 
 even though the defective end was not actually employed. By 
 the law it was intended to prohibit a railroad company from using 
 a car or engine hav-ing a defective coupler only upon one end, even 
 though that coupler was so defective that a reasonably prudent 
 man would not undertake to make a coupling tlierewith. The law 
 was intended to protect the lives and safety of all employees, 
 whether they are reasonably prudent or not. As I view it, an 
 engine in the condition in which this was was a possible source of 
 
 treat danger, in that if an employee were standing upon the foot- 
 oard and the head of the detective coupler was so low as not to 
 engage with the coupler upon a car in proper condition, thus 
 permitting the two cars to come close together, the employee 
 might be crushed. Or, upon the other hand, an employee of little 
 experience or caution might undertake, in case of emergency, to 
 couple the defective coupling with that of another car, and thus 
 imperil his safety or his life. In that view I have excluded the 
 testimony offered on behalf of the defendant and declined to give 
 certain requested instructions, and it becomes your duty to find a 
 verdict in favor of the plaintiff in accordance with the prayer of 
 the coniplaint. — Dietrich, D. J. [Affirmed in Chicago, M. <Ss St, 
 P. Ry. Co. V. U. S.y 196 Fed., 882, arUe.] 
 But see Wahash R. Co. v. U. S., 172 Fed., 864. 
 
 3. Proceedings on behalf of the Government for the recovery of the 
 penalties provided by the Acts are civil actions ; 
 Johnson V. Southern Pacific Co., 196 U. S., 1. 
 Supreme Court, December 19, 1904. 
 
 The primary object of the Act was to promote the public 
 welfare by securing the safety of employees and travelers, and 
 it was in that aspect remedial, while for violations a penalty 
 of $100, recoverable in a civil action was provided for, nnd in 
 that aspect it was ponal. — Fuller, Chief Justice, p. 17. 
 Chicago, B. d^ Q. Ry. Co. v. V. S.. 220 U. S., 559; U. S. v. 
 Louisville cfc .V. R. Co., 162 Fed., 185; Z7. S. v. Chicago Great 
 Western Ry. Co., 162 Fed., 775; V. S. v. Atchison, T. <& S. K 
 Ry. Co., 16.3 Fed., 517; U. S. v. Denver & R. G. R. Co., 163 
 Fed., 519; TJ. S. v. Boston & M. R. Co.. 168 Fed., 148; TJ. iS.Jv. 
 Southern PaciHc Co., 169 Fed., 407; U. S. v. Baltimore cfe O. 
 R. Co., 170 Fed., 456; U. S. v. Illinois' Central R. Co., 170 Fed., 
 
20 SAFETY APPLIANCE ACTS. 
 
 542; Chicago, B. <& Q. Ry. Co. v. V. S., 170 Fed., 556; U, S. v. 
 Southern Ry. Co., 170 Fed., 1014; U. S. v. Chicago, R. I. <& P, 
 Ry. Co., 173 Fed., 684; V. S,,y. Baltimore cfc 0. R. Co., 176 Fed., 
 , 114; TJ. S. V. Atlantic Coast Line R. Co., 182 Fed., 284; St. 
 Louis S. W. Ry. Co. v. U. S., 183 Fed., 770; U. S. v. St. 
 Louis S. W. Ry. Co. of Texas, 184 Fed., 28; U. S. v. Philadel- 
 phia (& R. Ry. Co., and V. S. v. Lehigh Valley R. Co., D. C, 
 , E. D. Pennsylvania, Mar. 17, 1908, McPherson, D. J. [unre- 
 ported]; U. S. V. Pennsylvania R. Co., D. C, E. D. Pennsyl- 
 vania, Mar. 18, 1908, McPherson, D. J. [unreported]; U. S. v. 
 Terminal R. Ass^n. of St. Louis, I). C, E. D. Missouri, June 3, 
 1908, Dyer, D. J. [unreported]; U. S. v. Chesapeake dc 0. Ry. 
 Co., D. C, S. D. West Virginia, Dec. 2, 1908, Keller, D. J. 
 [unreported]; TJ. S. v. Baltimore c& 0. R. Co., D. C, N. D. 
 West Virginia, Jan. 18, 1909, Dayton, D. J. [unreported]; 
 U. S. V. Southern Ry. Co. and U. S. v. Atlantic Coast Line R. 
 Co., D. C, D. South Carolina, Feb. 24, 1909, Brawley, D. J. 
 [unreported]; U. S. v. Baltimore & 0. R. Co., D. C, S. D. Ohio, 
 June 10, 1909, Sater, D. J. [unreported]; TJ. S. v. Toledo Ter- 
 minal R. Co. and U. S. v. Baltimore & 0. R. Co., D. C, N. D. 
 Ohio, June 15, 1909, Cochran, D. J. [unreported]; TJ. S. v. 
 Southern Paciic Co., D. C, D. Nevada, Nov. 24, 1909, Far- 
 rington, D. J. [unreported]; TJ. S. v. Atchison, T. c£* ^S'. F. Ry. 
 Co., D. C, N. D. Illinois, Dec. 27, 1909, Landis, D. J. [unre- 
 ported]; U. S. V. Baltimore cfc 0. R. Co., D. C, D. Indiana, 
 Dec. 13, 1910, Anderson, D. J. [unreported]; TJ. S. v. Northern 
 Pacific Ry. Co., D. C, W. D. Washington, Dec. 6, 1913, Cush- 
 man, D. J. [unreported]. 
 
 Fer Contra: 
 
 ■ U.S.y. Illinois Central R. Co., 156 Fed. 182; Atchison, T. & S. F. Ry. Co. v. U.S., 
 172 Fed., 194. 
 
 *— (a). And the payment to the United States of the penalties recovered 
 does not render such proceedings criminal actions : 
 ■ U. S. V. Illinois Central R. Co., 170 Fed., 542. 
 
 Circuit Court of Appeals, 6th Circuit, March 27, 1909. 
 
 Assuming that the punishment is just, the consequences 
 Q to the defendant are not far different from those which happen 
 in civil actions, only it is the Government which is the plaintifi. 
 
 The consequences of the judgment are substantially the 
 same to him as il the penalty was bestowed upon a private party, 
 except with regard to the scintilla of interest lie has in the public 
 revenue. If tlie public may for a sufficient reason compel the 
 defendant to pay a fine, it is of little importance to him whether 
 the Government keeps it for its own purposes or turns it over to 
 another who is already indemnified. — Severens, C. J., p. 544. 
 
 (b). An action in the nature of an action in debt is appropriate for the 
 recovery of the penalties provided by the Acts. 
 
 Atlantic Coast Line R. Co. v. U. S., 168 Fed., 175. 
 
 Circuit Court of Appeals, 4th Circuit, March 1, 1909. 
 
 While this suit is in the nature of a penal action, yet it does 
 not follow that it is a criminal prosecution. It is really an action 
 for debt.—Pritchard, C. J., p. 176. 
 
CONSTRUCTION AND INTERPRETATION. 21 
 
 Z7. S. V. Louisville cfc N. R. Co,, 167 Fed., 306. 
 
 Circuit Court of Appeals, 6th Circuit, February 18, 1909. 
 This is an action of debt broui^ht by the United States in the 
 District Court against the T^ouisville & Nashville Railrocid. Com- 
 pany to recover a penalty of $100 for the alleged violation of sec- 
 tion 6 of the Safetv Appliance Act of March 2, 1893. — SeverenSy 
 a J., p. 306. 
 OUcago, B. & Q. By. Go. v. U. S., 170 Fee.., 556. 
 
 Circuit Court of Appeals, 8th Circuit, April 24, 1909. 
 
 This is not a criminal case. It is a civil action in the nature 
 of the action of debt to recover a penalty which Congress in its 
 wisdom saw fit to impose upon railroads to secure compliance 
 with certain specified regulations made to promote the safety of 
 passengers and freight carried in interstate commerce and to 
 protect employees engaged in that service. — Adams, C. J.j 
 pp. 557-558. 
 V. S. V. Chicago, P. cfc St. L. Rv. Co. et al, 143 Fed., 353; U. S, 
 V. Atlantic Coast Line R. Co.. 153 Fed., 918: U. S. v. Illinois 
 Central R. Co., 170 Fed., 542; U. S. v. St. Louis S. W. By Co. of 
 Texas, 184 Fed., 28. 
 
 4. The Acts are to be construed similarly (a) to the Customs and Reve- 
 nue Laws ; 
 Johnson v. Southern Pacific Co., 196 U. S., 1. 
 Supreme Court, December 19, 1904. 
 
 But the design to give relief was more dominant than to 
 inflict punishment, and the Act might well be held to fall within 
 the rule applicable to statutes to prevent fraud upon the revenue, 
 and for the collection of customs, that rule not requiring absolute 
 strictness of construction. [Taylor v. TJ. S., 3 How., 197; TJ. S. 
 V. Stoioell, 133 U. S. 1, 12, and cases cited; F. & M. Nat. Banlc 
 V. Bearing, 91 U. S., 29, 35 ; Gray v. BenneU, 3 Met. (Mass.) 522].— 
 Fuller, Chief Justice, p. 17. 
 TJ. S. V. Southern Ry. Co., 135 Fed., 122; TJ. S. v. Great Northern 
 Ry. Co., 150 Fed., 229; U. S. v. Chicago, R. 7. cfe P. Ry. Co., 
 173 Fed., 684. But see Atchison, T. c& S. F. Ry. Co. v. TJ. S., 
 172 Fed., 194. 
 
 — (b). To the Hours of Service Act; 
 
 TJ. S. V. Kansas City Southern Ry. Co., 202 Fed., 828. See also U, 
 S. V. >S'^. Louis S. W. Ry. Co. of Texas, 189 Fed., 954. 
 
 — (c). And to the Pure Food and Drugs Acts: 
 U. S. V. Southern Ry. Co., 135 Fed., 122. 
 
 District Court, Southern District of Illinois, March 2, 1905. 
 . It [the Act] is in the same category with the question of intent 
 under the revenue laws and of good laith under statutes against 
 handling adulterated goods, drugs, etc. — Humphrey, B. J., 
 pp. 127-128. 
 V. S. V. Chicago, M. & St. P. Ry. Co., 149 Fed., 486. 
 
 District Court, Southern District of Iowa, November 27, 1906. 
 
 Such an attempt to distinguish those cases from the one at 
 
 bar is not an answer. Take the cases for violations of the pure- 
 
22 SAFETY APPLIANCE ACTS. 
 
 food laws. It is no defense for the seller that he believed the 
 food was pure. — McPherson, D. J., pp. 491-492. 
 
 -(d). But they are not in pari materia with the Act to regulate com- 
 merce : 
 
 V. S. V. Colorado ct' A'. W. R. Co., 157 Fed., 321. 
 
 Circuit Court of Appeals, 8th Circuit, November 2o, 1907. 
 The rule in pari materia, which counsel for the company in- 
 voke, the rule that the similar terms of statutes enactecl for Uke 
 purposes should receive like interpretations, is inapplicable to 
 the Interstate Commerce Act and the Safety Appliance Acts, 
 because the provision of the latter relative to the question be- 
 fore us is plain and explicit, -and a statute falls under that rule 
 only when its terms are ambiguous or its significance is doubtful 
 [Endlich on Interpretation of Statutes, sec. .53, p. 67], and because 
 the evils to be remedied, the objects to be accomplished, and the 
 enactments requisite to attain them are radically different. 
 * * * Neither in their subjects, in the mischiefs they were 
 enacted to remove, in the remedies rec^uired, nor in the remedies 
 provided do these Acts relate to similar matters, and the rule 
 that the words or terms of acts in pari matena should have similai* 
 interpretations, ought not to govern their construction. — San- 
 horn, C. J., p. 330. 
 See also Z7. S. v. Colorado db N. W. R. Co., 157 Fed., 342. But see: 
 
 U. S. v. Geddes, 131 Fed., 452. 
 
 Circuit Court of Appeals, 6th Circuit, June 8, 1904. 
 
 In one sense the two Acts are in pari materia; in another, not. 
 Both relate to the regulation of commerce among the States under 
 the supervision of the Interstate Commerce Commission. The 
 first deals largely with rates and fares — the cost of the commerce; 
 the second, with locomotives and cars — the instrumentalities used 
 to carry it on. The first was intended, primarily, to protect ship- 
 pers; the second, railroad employees; both, ultimately, to pro- 
 mote the best interests of the public. In each Act Congress seeks 
 to regulate commerce. What commerce? Commerce among 
 the several States. It was desirable, therefore, in the first Act 
 to define that commerce. Having done this oiice, it was suffi- 
 cient in the second Act to apply its provisions to carriers ' ' engaged 
 in interstate commerce," adopting the definition of the first. — 
 Richards, 0. J ., p. 455. [Affirming the decision of the District 
 Court for the Southern District of Ohio in TJ. S. v. Geddes, 180 
 Fed., 480.] 
 
 Gray v. Louisville cfc N. R. Co., 197 Fed., 874. 
 
 Circuit Court, Eastern District of Tennessee, April 3, 1912. 
 Furthermore, the Hepburn amendment of 1906 to the Inter- 
 state Commerce Act provides that the term ''railroad'" as used in 
 the Act shall include ' ' all the road in use by any corporation operat- 
 ing a railroad, whether owned or ojjerated undsr a contract or 
 agreement or lease, and shall also include all switches, spurs, 
 tracks and terminal facilities of every kind used or necessary in 
 the transportation of the persons or property designated herein." 
 In TJ. S. V. Geddes, 131 Fed., 452, it was held by the Circuit Court 
 of Appeals for this Circuit that the Interstate Commerce Act and 
 
. CONSTRUCTION AND INTERPRETATION. 23 
 
 the Safety Appliance Act were in pari materia to such an extent 
 that ths definition of interstate commerce given in the Interstate 
 Commerce Act should be followed in construing the Safety Appli- 
 ance Act. By a parity of reasoning I am or opinion that the 
 definition of a raikoad ^ven in the Hepburn amendment is to 
 such extent in pari materia with the Safety Appliance Act that the 
 fine of the carrier's railway referred to m tne Safety Appliance 
 Act should be construed according to the definition of a railroad 
 in the Hepburn amendment to the Interstate Commerce Act. — 
 Sanfordj D. J ., p. 876. 
 
 (e). And are distinguishable, in their construction, from the Employ- 
 ers' Liability Acts. 
 U. S. V. Wheeling <& L. E. R. Co., 167 Fed., 198. 
 
 District Court, Northern District of Ohio, June 16, 1908. 
 
 But much more may be said in favor of the propriety of this 
 legislation, having in view the decision of the Supreme Court in 
 the Employers' Liability Cases. It is true that the Supreme 
 Court in that case held the Employers' Liability Act unconsti- 
 tutional, because it made the railroad company Hable to any of 
 its employees, without restricting the liabihty to those who were 
 engaged in interstate commerce; but a parity of reasoning would 
 not require that we should say the same thing of the Safety 
 AppUance Act because it refers to all cars used on any railroad 
 engaged in interstate commerce. It seems to me that, in the 
 respect complained of, there is no analogy between the decision of 
 the Supreme Court in the Employers' Liability Cases and the 
 theory of the defendant's counsel as to the constitutionaUty of the 
 Safetv Appliance Act. An employee of a railroad company en- 
 gaged in mterstate commerce does not, merely because he is such 
 employee, sustain the same relation to interstate commerce as a 
 car used on a railroad engaged in interstate commerce sustains to 
 interstate commerce on that road. Certainly, the Federal Govern- 
 ment owes no duty to, and has no authority over, an employee of a 
 railroad which is engaged in interstate commerce, if the employee 
 himself is not engaged in the work of interstate commerce. That 
 employee is subject, in respect to his relations with the railroad 
 company, to the laws of the State in which the service is per- 
 formed. There is no reason why the power of the State should 
 not be sufficient for his protection, or why the Federal Govern- 
 ment should interfere with respect to that or any other matter 
 relating to that employee in respect to his work with the railroad 
 company, so long as it does not relate to the interstate commerce 
 of the company. 
 
 But this is not true of a car used by a railroand engaged in 
 interstate commerce. All of the cars used by a railroad engaged in 
 interstate commerce, in the natural course of their use, are instru- 
 mentahties of interstate commerce; whether they carry inter- 
 state traffic themselves or are hauled in a train which contains 
 interstate traffic the effect is the same. They stand in a certain 
 and important relation to that interstate commerce over which 
 Congress has control; and it is quite apparent that Congress, in 
 undertaking to determine the manner in which interstate com- 
 merce shall be carried on, and especially in making effective the 
 
24 SAFETY APPLIANCE ACTS. 
 
 useful and beneficent purpose of providing for the safety of 
 employees, would necessarily have a regard lor the cars which 
 the interstate-commerce railroad had in use. And thus, discov- 
 ering a very marked and practical distinction between a car used 
 by an interstate-commerce railroad and a person in the employ 
 of an interstate-commerce railroad, we see how one, in the nature 
 of things, becomes properly the subject of federal legislation, 
 while the other, depending upon the character of his work, may 
 or may not become properly the subject of federal legislation. — 
 Tayler, D. J., pp. 200-201. 
 Z7. S. V. Southern Ry. Co., 164 Fed., 347. But see North Carolina 
 R. Co. V. Zachary, 232 U. S., 248, 260, to the effect that the 
 statutes are in pari materia. 
 
 — Per Contra: 
 
 U. S. V. Erie R. Co., 166 Fed., 352. 
 
 6. Whatever constitutes a violation of the Acts in a personal action 
 for damages is likewise a violation in an action for the statutory 
 penalty. 
 Atlantic Coast Line R. Co. v. V. S., 168 Fed., 175. 
 
 Circuit Court of Appeals, 4th Circuit, March 1, 1909. 
 
 The Circuit Court of Appeals for the Eighth Circuit, in the 
 case of U. S. v. Atchison, T. c& S. F. Ry. Co., 163 Fed., 517, held 
 that the duty placed upon the railroads by the Act is the same in 
 both instances, and therefore that that which would be deemed 
 a violation in an action to recover for personal injuries is also to 
 be deemed a violation in an action to recover the statutory 
 penalty. — Pritchard, C. J., p. 184. 
 U. S. V. Atchison, T. & S. F. Ry. Co., 163 Fed., 517. 
 
 Circuit Court of Appeals, 8th Circuit, August 22, 1908. 
 
 Indeed, a survey of the entire statute leaves no room to 
 doubt that all violations thereof are put in the same category, 
 and that whatever properly would be deemed a violation in an 
 action for personal injuries is to be deemed equally a violation 
 in an action to recover a penalty. — Van Devanter, C. J., p. 518. 
 [Cited with apparent approval in Chicago, B.&Q. Ry. Co. v. V. S., 
 220 U. S., 559.] 
 But see proviso in section 4, Act April 14, 1910, p. 91, post. 
 
 6. A violation of the Acts resulting in personal injury entails two pen- 
 alties — one of $100.00 accruing to the Government; the other to 
 the employee injured by reason thereof, in the abrogation of the 
 defense of assumption of risk. 
 TJ. S. V. Atlantic Coast Line R. Co., 153 Fed., 918. 
 
 District Court, Eastern District of North Carohna, May 21, 1907. 
 In other words, whenever a carrier uses a car in violation of 
 the provisions of the Act the United States shall have a right to 
 the penalty of $100 and the injured employee shaU be protected 
 from the defense of ^'assumption of risk." There are. therefore, 
 two penalties fixed upon the carrier. One is the $100 payable to 
 the IJnited States and the other is the denial of assumption of 
 risk as a defense when sued by an injured employee. — rurneU, 
 D. J., p. 921. 
 
CONSTRUCTION AND INTERPRETATION. 25 
 
 7. In a prosecution for the recovery of the statutory penalty, the 
 defendant is liable as to each and every car used or hauled in 
 violation of the Acts. 
 St. Louis S. F. Ry. Co. v. U. S., 183 Fed., 770. 
 
 Circuit Court of Appeals, 5th Circuit, January 10, 1911. 
 
 The hauhng by any carrier engaged in interstate commerce 
 of a car not furnished with the safety appliances required by 
 the laws of the United States is a violation of the statute, which 
 entitles the United States to recover a penalty of $100; and as 
 this penalty attaches for each and every such violation, it is 
 recoverable for each and every car not furnished with the 
 requisite safety appliances hauled in violation of the Act. 
 
 Whether the hauling be of several cars by one act or by 
 several acts is immaterial, so that if several cars, each without 
 the requisite appliances, are hauled by the carrier at one and 
 the same time, there are several distinct violations, for each and 
 every of which the penalty is due and recoverable. — Per Curiam , 
 pp. 770-771. 
 
 U. 8. V. St Louis S. W. Ry. Co. of Texas, 184 Fed., 28. 
 
 Circuit Court of Appeals, 5th Circuit, December 13, 1910. 
 The defendant contends that there has been but one viola- 
 tion of the Act, and that, therefore, the court ruled correctly in 
 assessing only one penalty. The contention is that the defend- 
 ant "has committed only one act; that it, by one act, hauled 
 three cars, in one movement, not equipped with safety appli- 
 ances as required by law." If this contention is well founded, a 
 defendant who used on the same trip a defectively equipped 
 engine and a defectively equipped car could be made to pay one 
 penalty only, although the use of the engine is made unlawful 
 by section 1 and the use of the car by section 2 or 4. It would 
 also follow that a defendant who hauled or used 20 defective 
 cars could not be made to suffer a larger penalty than a defend- 
 ant who hauled or used only one defective car. It is difficult to 
 believe that such was the intention of Confess. The words of 
 the sections — 2 and 4 — designating the unlawful act, point, it 
 seems to us, at the car and not at the train. It is made unlaw- 
 ful to haul or use "any car." If it had been made unlawful to 
 haul any train containing a car or cars not eq^uipped as required, 
 it is easy to see that the number of defective cars would not 
 increase the penalty. But the Act makes the haiding or use of 
 the defective car the unit of the offense, and prescribes the 
 penalty "for each and every such violation." The hauling or 
 use of each car is, it is admitted, a violation for which the penalty 
 may be infhcted. But the contention is that the hauling or use 
 of each car must be separate, or there is but one offense. In 
 view of the purpose of the Act to protect life and Hmb by the 
 enforced equipment of every car, and its being made unlawful 
 to haul or use any car not equipped as required, it seems to us 
 that the construction contended tor by the defendant is so nar- 
 row as to defeat the intention of Congress. If the three defec- 
 tive cars had been hauled or used by the same engine, but only 
 one moved at a time at intervals of one minute or less, it is 
 
26 SAFETY APPLIANCE ACTS. 
 
 not denied by defendant's contention that three penalties could 
 be recovered. The three penalties would have been recovered 
 for the reason that the statute makes unlawful the hauling or use 
 of ''any car," or each car not equipped as required. It seems 
 strained to say that the statute requires for its complete appli- 
 cation an interval and that the condemnation and penalty is not 
 the same if the three cars are hauled or used at the same time. — 
 Shelby, a J., p. 31. 
 
 S. In a prosecution for the recovery of the statutory penalty, the 
 ownership of the cars involved is immaterial, and the defendant 
 is liable for the use or hauling of a foreign car in violation of 
 the Acts;* 
 U, S. V. CUcago Great Western Ry. Co., 162 Fed., 775. 
 
 District Court, Northern District of Iowa, May 6, 1908. 
 
 It appears from the evidence that some of the cars alleged to 
 bave been hauled or used by the defendant in violation of the law 
 were not its own cars, but were the cars of some other company. 
 This fact is wholly immaterial. If such cars were in a defective 
 condition, as contended on behalf of the plaintiffs, no matter to 
 whom they belonged, the defendant would incur the same penalty 
 in hauling such cars when in such defective condition that it 
 would if they were its own cars. — Reed, D. J., p. 781. 
 Crawford v. New YorJc Central & E. R. R. Co., 10 Am. Neg., 166. 
 Supreme Court of Westchester Co., N. Y., April Term, 1901. 
 Now, the defendant says it was not the owner of these cars, 
 and counsel has argued that that is a defense to the action. I 
 say to you, as matter of law, that has nothing to do with the 
 cause of action at all. It does not matter whether the defendant 
 was the owner or not, because the statute prohibits the use on the 
 Hne of the road or the permitting to be hauled on the Une of the 
 road, any of these cars not equipped as the statute provides. So 
 that if they permitted to be hauled or used on their roads any such 
 cars, even though they belonged to other companies, they would 
 offend against this provision of the statute. — Dickey, J., p. 169. 
 JJ. S. V. Pennsylvania R. Co. [unreported]. 
 
 District Court, Eastern District of Pennsylvania, March 18, 1908. 
 It was not one of its owti cars ; it was a car belonging to the 
 Boston & Albany Railroad; nevertheless, that makes no dififer- 
 ence. As you know, railroads are continually interchanging cars, 
 and the Act of Congress makes no difference between cai-s that 
 are owned by a railroad and cars that come upon its system and 
 are hauled by it over its rails. — McPJierson, D. J. 
 Johnson V. Great Northern Ry. Co., 178 Fed., 643; Grand TrunJc 
 Western Ry. Co. v. Poole, 93 N. E., 26; U. S. v. Northern Pacific 
 Ry, Co., D. C, W. D. Washington, Dec. 5, 1913, Cushman, D. J. 
 [unreported.] 
 
 *An "M. C. B. Defect Card" is one prescribed by the Master Car Builders' Associa- 
 HoQ as notice to connecting lines of the existence of particular defects discovered 
 IQ the car to which it is affixed at the time of its receipt in interchange. See U. S. v. 
 Southern Ry. Co., 135 Fed., 122. 
 
 A "Bad Order Card " is one affixed to a car by a company inspector to indicate that 
 it is in such a defective condition that it must not be moved except for the purpose of 
 lepair. Such a card is never employed as notice to connecting lines. See u. S. v. 
 Ckicago, R. I. rC: P. Ry. Co., 173 Fed., 684. 
 
CONSTRUCTION AND INTERPRETATION. 27 
 
 — (a). But a carrier need not accept defective cars from a connecting 
 line. 
 
 U. S. V. Southern Pacific Co., 1 67 Fed., 699. 
 
 District Court, NorthernDistrict of California, December 4, 1908. 
 A railway company is under no obligation to receive from 
 any other company cars defective as to safety appliances, and 
 when it does receive cars from another company at any point it 
 must know at its peril that each car so received is equipped with 
 the safety appliances required by law, and that such appliances 
 are in good order and condition. — De Haven, D. J., p. 701. 
 
 U. S. V. Pennsylvania R. Co. [unreported]. 
 
 District Court, Eastern District of Pennsylvania, March 18, 1908. 
 If a car is not in proper operative condition, it is the duty of 
 the railroad to refuse to receive it, as it has a perfect right to do. — 
 McPherson, D. J. 
 
 U. S. V. Chicago, M. & St. P. Ry. Co., 149 Fed., 486. See also: 
 
 That when any person, firm, company, or corporation engaged in in- 
 terstate commerce by railroad shall have equipped a suflB.cient number 
 of its cars so as to comply with the provisions of section 1 of this Act, it 
 may lawfully refuse to receive from connecting lines of road or shippers 
 any cars not equipped suflBiciently, in accordance with the first section 
 of this Act, with such power or train brakes as will work and readily 
 interchange with the brakes in use on its own cars, as required by this 
 Act.— Sec. 3, Act March 2, 1893 [27 Staf. at L., 531]. 
 
 9. The Amendment of 1903 is affirmative and declaratory of the 
 
 original Act. 
 
 Johnson v. Southern Pacific Co., 196 U. S., 1. * 
 
 wSupreme Court, December 19, 1904. 
 
 As we have no doubt of the meaning of the prior law, the 
 subsequent legislation can not be regarded as intended to oper- 
 ate to destroy it: Indeed, the latter Act is affirmative and 
 declaratory, and, in effect, only construed and apphed the former 
 Act. — Fuller, Chief Justice, p. 21. 
 
 ScMemmer v. Buffalo R. cfc P. Ry. Co., 205 U. S., 1. 
 Supreme Court, March 4, 1907. 
 
 The later Act of March 2, 1903, enacting that the provision 
 shall be held to apply to all cars and similar vehicles, may be 
 used as an argument on either side, but in our opinion indicates 
 the intent of the original Act. — Holmes, Justice, p. 10. 
 
 U. S. V. Wheeling & L. E. R. Co., 167 Fed., 198; NorfolJc <& W. 
 Ry. Co. V. U. S., 177 Fed., 623; Galveston, H. dcS.A.Ry. Co. 
 V. U. S., 199 Fed., 891; Chicago, B. cfc Q. Ry. Co. v. TJ. S., 211 
 Fed., 12; TJ. S.v. Pere Marquette R. Co., 211 Fed., 220; Devine 
 V. Illinois Central R. Co., 156 HI. App., 369; Snyder v. Southern 
 Ry. Co., C. C, E. D. Tennessee, Jan. 21, 1910, Sanford, D. J. 
 [unreported]. See also Southern Ry. Co. v. U. S., 222 U. S., 20. 
 
 10. A custom of railroads in the observance of practices condemned by 
 
 the Acts does not excuse their violation. 
 Pennell v. Philadelphia & R. Ry. Co., 231 U. S., 675. See also 
 Stearns v. Chicago R. I. c& P. Ry. Co., 148 N. W., 128. 
 
28 SAFETY APPLIANCE ACTS. 
 
 11. The Standardization Order of the Interstate Commerce Com- 
 
 mission, made in pursuance of the Act of 1910, is persuasive as to 
 the meaning of the statute. 
 PenneU v. PJiiladelpJiia & R. Ry. Co., 231 U. S., 675. See also 
 Part IV, Item 7, p. 198, post. 
 
 12. Defective cars may be hauled on flat cars properly equipped. 
 V. S. V. Chicago, M. 8c St. P. Ry. Co., 149 Fed., 486. 
 
 District Court, Southern District of Iowa, November 27, 1906. 
 If slight, they [repairs] could have been made at near-by 
 points. If extensive, and which could be made only at Dubuque, 
 then the evidence without conflict shows that this empty box 
 car, with the trucks detached as they were, could easily have been 
 placed on a flat car properly equipped. And all the witnesses 
 who testified on the subject, defendants included, say that such 
 is easily and often done. — McPherson, D. J., p. 490. 
 
 C. SCOPE OF THE ACTS. 
 
 1. Provisions of the Law : 
 
 That from and after the first day of January, eighteen hundred and 
 ninety-eight, it shall be unlawful for any common carrier engaged in 
 interstate commerce by railroad to use on its line any locomotive engine 
 in moving interstate traffic not equipped with a power driving-wheel 
 brake and appliances for operating the train-brake system, or to run 
 any train in such trafBic after said date that has not a sufificient num- 
 ber of cars in it so equipped with power or train brakes that the engi- 
 neer on the locomotive drawing such train can control its speed without 
 requiring brakemen to use the common hand brake for that purpose. — 
 Sec. ], Act March 2, 189S [27 Stat, at L., 531]. 
 
 That the provisions and requirements of the Act entitled "An Act 
 to promote the safety of employees and travelers upon railroads by 
 compelling common carriers engaged in interstate commerce to equip 
 their cars with automatic couplers and continuous brakes and their 
 locomotives with driving-wheel brakes, and for other purposes," 
 approved March second, eighteen hundred and ninety- three, and 
 amended April first, eighteen hundred and ninety-six, shall be held to 
 apply to conunon carriers by railroads in the Territories and the Dis- 
 trict of Columbia and shall apply in all cases, whether or not the 
 Couplers brought together are of the same kind, make, or type; and 
 the provisions and requirements hereof and of said Acts relating to 
 train brakes, automatic couplers, grab irons, and the height of draw- 
 bars shall be held to apply to all trains, locomotives, tenders, cars, and 
 similar vehicles used on any railroad engaged in interstate commerce, 
 and in the Territories and the District of Columbia, and to all other 
 locomotives, tenders, cars, and similar vehicles used in connection 
 therewith, excepting those trains, cars, and locomotives exempted by 
 the provisions of section six of said Act of March second, eighteen hun- 
 dred and ninety-three, as amended by the Act of April first, eighteen 
 hundred and ninety-six, or which are used upon street railways. — Sec. 
 1, Act March 2, 1903, [32 Stat, at L., 943.] 
 
SCOPE. 29 
 
 (a). "Railroad" defined: 
 
 U. S. V. Union Stock Yards Co. of Omaha, 161 Fed., 919. 
 District Court, District of Nebraska, February 21, 1908. 
 A railroad has been defined as a road or way on which iron 
 rails are laid for wheels to run on for the conveyance of heavy 
 loads and vehicles. [Dinsmore v. Racine M. R. Co., 12 Wis., 649.] 
 Such a track is a railroad independently of the use made of the 
 track in the hauling of cars over it, as was pointed out in L. S. db 
 M. R. Co. V. U. S., 93 U. S., 4:42.— Munger, D. J., p. 923, 
 See also: 
 
 * * * The term "railroad," as used in this Act, [Act to regulate commerce] 
 shall 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 also include aU switches, spurs, tracks, and terminal 
 facilities of every kind used or necessary in the transportation 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 property; * * *.~Sec. 1, Ad February 4, 1887 [24 Stat, at L., 
 379], as amended June 29, 1906 [34 Stat, at L., 584]. 
 
 (b). " Common carrier " defined : 
 U. S. V. Ramsey, 197 Fed., 144. 
 
 Circuit Court of Appeals, 8th Circuit, May 27, 1912. 
 
 "A common or pubUc carrier is one who by virtue of his 
 business or calling undertakes, for compensation, to transport 
 personal property from one place to another, either by land or 
 water, and deliver the same, for all such as may choose to 
 employ him; and every one who undertakes to carry and 
 dehver, for compensation, the goods of all persons indifferently, 
 is, as to liability, to be deemed a common carrier." — [Moore on 
 Carriers, p. 18]. — Hunger, D. J., p. 146. 
 
 — (i). Eailroads devoted to public use are common carriers. 
 
 Union Stock Yards Co. of Omaha v. U. S., W9 Fed., 404. 
 Circuit Court of Appeals, 8th Circuit, April 2, 1909. 
 
 True there is a temporary stoppage of the loaded cars at the 
 transfer track, but that is merely incidental and does not break 
 the continuity of the transit any more than does the usual trans- 
 fer of such cars from one carrier to another at a connecting point. 
 And it is of httle significance that the Stock Yards Company 
 does not hold itself out as ready or willing generally to carry live 
 stock for the pubUc, for all the railroad companies at South 
 Omaha do so hold themselves out and it stands ready and willing 
 to conduct, and actually does conduct, for hire a part of the 
 transportation of every live stock shipment which they accept 
 for carriage to or from that point, including such shipments as 
 are interstate. — Van Devanter, C. J., p. 406. 
 U. S. V. Union Stock Yards Co. of Omaha, 161 Fed., 919. 
 District Court, District of Nebraska, February 21, 1908. 
 
 The defendant, having chosen to devote its railroad tracks 
 to a public use, must be held to be a common carrier. — MuvAier, 
 D.J,, p. 924. ^ 
 
 See also U. S. v. Geddes, 131 Fed., 452. 
 
30 SAFETY APPLIANCE ACTS. 
 
 2. The Acts apply to railroads generally engaged in interstate 
 commerce : 
 TJ. 8. y. Colorado cfc N. W. R. Co,, 157 Fed., 321. 
 
 Circuit Court of Appeals, 8th Circuit, November 25, 1907. 
 Each of these transportations from the respective points in 
 Missouri and Nebraska to the places of consignment of the goods 
 in Colorado was a single interstate carriage and transaction and 
 the Northwestern Company, by reason of its transportation of 
 these and like shipments through a part of their interstate car- 
 riage, necessarily became a ''common carrier engaged in inter- 
 state commerce by railroad" and thus fell within the literal terms 
 and the ordinary meaning of the provision of the Safety Appli- 
 ance Acts, which declare that it shall be unlawful for '' any com- 
 mon carrier engaged in interstate commerce by railroad to haul 
 cars used in moving interstate traffic unequipped with automatic 
 couplers." — Sanborn, C. J., p. 324. 
 U. S. V. Union Stock Yards Co, of Omaha, 161 Fed., 919; V, S. v. 
 Southern Ry, Co,, 164 Fed., 347; Wabash R. Co, v. V. S,, 168 
 Fed., 1; Bevine v. Chicago cfe C R. R. Co., 102 N. E., 803. 
 
 Per Contra: 
 
 LouisvilU iSc N. R. Co. v. U. S., 186 Fed., 280. 
 
 Circuit Court of Appeals, 6th Circuit, March 3, 1911. 
 
 These considerations lead us to the conclusion that the amendment of 
 1903 was intended to be a regulation of railroads while they are engaged in inter- 
 state commerce, and that the language means the same thing as if tlie word 
 "when" were interposed before the word "engaged." And, indeed, this is 
 not a forced construction, but is one of the natural constructions wliich the 
 words actually used would bear, for "engaged" might with equal propriety 
 refer to a continuous period or to a definite time. And this fact would found 
 the duty of adopting the latter definition. And, so construed, the statute is 
 relieved of the objection that Congress has no power to regulate the domestic 
 commerce of a State. — Severen^, C. /., p. 284. 
 ^ See also U. S. v. Ene R. Co., 166 Fed.. 352. 
 — (a). And courts may take judicial notice of the fact that trunk-line 
 railroads are generally engaged in interstate commerce. 
 
 Shohoney v. Quincy, 0. & K. C. Ry. Co., 122 S. W., 1025. 
 Supreme Court of Missouri, November 27, 1909. 
 
 All the trunk-line railroads in the country are engaged in 
 interstate commerce, and they must all conform to the acts of 
 Congress passed in pursuance of the federal Constitution on 
 that subject. — Valliant, J., p. 1036. 
 State V. Missouri Pacific Ry. Co., Ill S. W., 500. 
 Supreme Court of Missouri, June 6, 1908. 
 
 May we, or may we not, take judicial notice of the fact that 
 the Missouri Pacific Railway Company is engaged in interstate as 
 well as intrastate commerce ? It is argued on behalf of the State 
 that we may not (absent proof or allegation in the indictment, as 
 here) assume defendant is so engaged. But it seems to us we 
 ought not to allow controlling force to that suggestion. And 
 this, because the trend of the judicial mind is to expand the 
 judicial horizon and, as decided cases ripen into precedents, it is 
 made manifest that the list of things of which courts take judicial 
 notice is being sensibly added to by growth. For instance, in 
 
SCOPE. 31 
 
 Kansas City v. Scarritt, 169 Mo., 485, it is said: ''Almost anyone 
 knows that a burial ground does not enhance the value oi the 
 surrounding property, and there is no reason why courts should 
 pretend to he more ignorant than the rest of mankind.'' 
 
 As put in another case, Henry County v. Salmon, 201 Mo.» 
 161: ''To this end we may assume a knowledge of events of 
 current public history; for courts ought not to proceed on the 
 theory tney do not know what everyone else does know," 
 
 It was said in State ex rel. v. Cool, 171 Mo., 357-358: ''1% 
 is a fact of common knowledge, of which the court may take 
 cognizance, that in 1891 there were several foreign railroad com- 
 panies which had theretofore approached our border with their 
 roads and, under the express leave of the statute above quoted, 
 had extended their lines mto this State, some crossing it from one 
 side to the other, some penetrating it to St. Ix)uis, and some to 
 Kansas City, and some to other points.' 
 
 If now, as held in the Coolc Vase, we may take judicial notice 
 of things there enumerated, would we not be (to borrow an in- 
 spired metaphor — Matthew xxiii, 24) "blind guides, which strain 
 at a gnat and swallow a camel,"' if we refused to take judicial 
 notice of the patent and large fact that defendant is now and 
 always has been actively engaged in interstate commerce? As 
 pointed out by defendant's learned counsel, we know as well that 
 defendant's railroad is a main- traveled highway, a throbbing 
 artery of commerce, stretching from St. Louis on the eastern line 
 of this State to Kansas City on the western line and away into 
 other States, as we know that the Missouri River exists as a 
 navigable stream and takes the same course. 
 
 Let us look at it from another point of view, viz: That de- 
 fendant has the charter power to do an interstate commerce 
 business no one would question. That defendant is organized 
 for the very purpose of commercial gain as a common carrier no 
 one would question. Given such power and such congenital and 
 organized appetite for profit, would any court requu'e proof that 
 defendant was using such power and appeasing such appetite in 
 ways ready to its hand ? As well (speaking m a homely way) 
 require a solemn allegation or proof that fishes swim or that birds 
 fly as to require allegation or proof that a gomg railroad cor- 
 poration is doing what it was born to do, to wit, engage in inter- 
 state commerce, when the alluring gains of such traffic are spread 
 like a feast before its eager corporate eyes and nothing is nigh to 
 hinder. — Lamm, J., p. 504. 
 
 3. The Acts apply to intrastate railway companies that participate in. 
 the movement of interstate traffic : 
 Belt Ry. Co. ^ Chicago v. V. S., 168 Fed., 542. 
 
 Circuit Court of Appeals, 7th Circuit, February 3, 1909. 
 The railroad tracks of plaintiff in error He wholly within 
 Cook County, III. There are 21 miles of main Une and about 
 90 miles of switching and transfer tracks. The main line con- 
 stitutes a belt that intersects the trunk hnes leading into Chi- 
 cago. By leads and Ys direct physical connection with the 
 trunk lines is maintained. Plaintiff in error's business consists 
 
Jg SAFETY APPLIANCE ACTS. 
 
 in transporting cars between industries located along its line, 
 between industries and trunk lines, and between trunk lines. 
 The first two kinds need not be noticed as the transportation 
 here involved was between trunk lines. The train in question 
 contained among others a car laden with lumber, and consigned 
 from a point in Illinois on the Chicago & Eastern Illinois to a 
 point in Wisconsin on the Chicago & Northwestern. This car 
 was taken by plaintiff in error from the tracks of the Eastern 
 Illinois over the Belt Line and put on the tracks of the North- 
 western. For services of this kind plaintiff in error makes 
 arbitrary charges of so much a car, which are collected monthly 
 from the railroad companies for which the services are rendered. 
 In such operations plaintiff in error has no dealings with the 
 shippers and pays no attention to the class of traffic. Its rela- 
 tion to the traffic was stated by the general superintendent as 
 follows: "The Belt Company acts practically as an agent for 
 the trunk lines in the handling of cars from one connection to 
 another through its yards." * * * 
 
 We are of opinion that the transportation in question [by 
 the Belt Ry. Co.] was the same in legal effect as if the Eastern 
 Illinois by means of its own locomotive and track had put the 
 through car on the Northwestern's track. In this view there 
 was evidence from which the inference of fact might warrantably 
 be drawn by the jury that there was a common arrangement for 
 a continuous carriage over the Eastern Illinois and the North- 
 western; and so, with respect to the movement in question, 
 plaintiff in error was engaged in interstate transportation. — 
 BaJcer, 0. J., pp. 543-544, 545. 
 U. S. v. Northern Pacific Terminal Co., 144 Fed., 861. 
 District Court, District of Oregon, April 2, 1906. 
 
 When, therefore, the Terminal Company is engaged in 
 effecting a transfer of one of these cars from one line of railway 
 to another, it is itself engaged in hauling a car used in moving 
 interstate traffic. — Wolverton, D. J.j p. 863. 
 U. S. V. Belt Ry. Co. of Chicago [unreported]. 
 
 District Court, Northern District of Illinois, January 23, 1908. 
 
 The question, therefore, presented is whether the Belt Rail- 
 way Company, at the time of the movement of the train, was 
 engaged in interstate commerce; and on this point I charge you 
 that when a commodity originating at a point in one State, 
 destined to a point in another State, is put aboard a car, and 
 that car begins to move, interstate commerce has begun, and 
 that interstate commerce it continues to be until it reaches its 
 destination. If, therefore, between the point of origin of this 
 sliipment and the point of destination, the car in which it is 
 being vehicled passes over a fine of track wholly within a city, 
 within a county, within a State, the railway company operating 
 that line of track while moving such car is engaged in inter- 
 state commerce. — Landis, D.J. [Affirmed by the Circuit Court 
 of Appeals for the 7th Circuit in Belt Ry. Co. of Chicago v. 
 U. S., 188 Fed., 542, ante.] 
 
SCOPE. 33 
 
 — (a). And community of control, management, or arrangement with 
 other carriers is not prerequisite to the application of the Acts to 
 such traffic. 
 
 V. S. V. Colorado dc N. W, R. Co., 157 Fed., 321. 
 
 Circuit Court of Appeals, 8tli Circuit, November 25, 1907. 
 And if the Congress '' should be intended to mean what they 
 have plainly expressed'' they must have meant that no common 
 carrier engaged in such commerce by railroad, whether its rail- 
 road was long or short, whether it was within one or many States, 
 whether it was engaged much or little in that commerce, and 
 whether it operated independently or under a common control, 
 management, or arrangement with some other carrier, could 
 lawfully move interstate traffic in its cars without first equipping 
 them with automatic couplers, for so the Congress plainly 
 enacted. * * * The amendatory Act of June 29, 1906, is a 
 demonstration that the original Act was not intended to, and 
 did not, regulate all common carriers engaged in interstate com- 
 merce by railroad within the power of Congress, for the amend- 
 ment applies the provisions of the Act to common carriers 
 engaged in interstate commerce wholly by railroad who are 
 exempt from any common control, management, or arrange- 
 ment with other carriers, and applies its provisions to many 
 other carriers not subject to the terms of the original Act. — 
 Sanborn, C. J., pp. 324-325, 329-330. 
 
 U. S. V. Colorado db N, W. R. Co., 157 Fed., 342. 
 
 Circuit Court of Appe*als, 8th Circuit, November 25, 1907. 
 Our conclusion is that a common carrier which operates a 
 railroad entirely within a single State and transports thereon 
 articles of commerce shipped in continuous passages from places 
 without the State to stations on its road, or from stations on its 
 road to points without the State, is subject to the provisions of 
 the Safety Appliance Acts, although it carries the property free 
 from a common control, management, or arrangement with 
 another carrier for continuous carriages or shipments of the 
 goods. — Sanborn, C. J., p. 345. 
 
 — Per Contra: 
 
 U. S. V. Geddes, 131 Fed., 452; Id. v. Id., 180 Fed., 480. See also Belt Ry. Co. of 
 
 Chicago v. U. S., 168 Fed., 542. 
 
 4. The Acts apply to interurban electric railway companies that 
 participate in the movement of interstate traffic. 
 
 Spolcane & I. E. R. Co. v. V. S., 210 Fed., 243. 
 
 Circuit Court of Appeals, 9th Circuit, January 5, 1914. 
 
 There is testimony to the effect — and none to the contrary — 
 that the sharpness of the curves on the street car fine is such as 
 to make it impossible to run cars over that fine having grab irons 
 or handholds on the end of the cars . Conceding that to be true, it is 
 no answer to the Government's action if the Act of Congress in 
 question is applicable to the company's interurban lines. To 
 hold with the plaintiff in error on this point would be to hold that, 
 because the company uses the tracks of its street car fines for a 
 mere trifle of the distance between its terminal points in order to 
 50611—15 3 
 
34 SAFETY APPLIANCE ACTS. 
 
 reach the center of the city of Spokane, its entire interurban line, 
 which has all of the characteristics in build and operation of a 
 standard steam road, is not subject to the Safety Apphance Act. 
 That would, indeed, be a case of 'Hhe tail wagging the dog." 
 
 We are of the opinion that the Act of Congress does not admit of 
 such an interpretation, especially in view of the manifest purpose of 
 the legislation. The exception from its operation of cars ''used 
 upon street railways," we think, means, ii not those solely used 
 on street railways, at least such as are used on such railways in 
 street railway traffic, which was not the cas*^ here, according to the 
 testimony of the company's own witnesses. .* * * 
 
 The use of such interurban cars as we have here, engaged as 
 they are in intei-state commerce, for a comparatively short and 
 relatively inconsiderable distance on a street railwaj^ in order to 
 reach the city terminus of the company handling no street car 
 business, can hardly be considered an intermingling of trafhc; 
 but if so, it would, in our opinion, no more make inappUcable the 
 Safety Apphance Act to the interurban Une than does the inter- 
 mingling of intrastate wdth interstate traffic defeat the power of 
 Congress over the latter. See Baltimore & 0. R. Co. v. /. C. (7., 
 221 U. S.. 612; Southern Ry. Co. v. U. S., 222 U. S., 20.— Ross, 
 C. J., p. 246. [Affirming the judgment of the District Court 
 for the Eastern District of Washington in U. S. v. Spolcane <& 
 I. E. R. Co., 206 Fed., 988.] 
 
 5. A car hauled or used by one carrier ov^r the lines of another, under 
 a contract or trackage agreement, is hauled or used ''on the line" 
 of the operating company, within the purview of the Acts. 
 PMladelpJiia cfc R. Ry. Co. v. U. S., 191 Fed., 1. 
 
 Circuit Court of Appeals, 3rd Circuit, November 6, 1911. 
 
 There was abundant evidence tending to show that this car 
 and the train of which it was a part was a car and train in the 
 management and control of the defendant company, in the con- 
 duct of its interstate traffic, and that for the purposes of this case, 
 and within the meaning of the Act, it was a car being used and 
 hauled in the conduct of such traffic on the fine of the defendant 
 company. It is true that the tracks upon which the evidence 
 places the car were the tracks of another corporation, to wit, the 
 Central Railroad of New Jersey, but the evidence tends to show 
 that the defendant company was in lawful use of these tracks for 
 the conduct of its interstate traffic, under a contract with the 
 corporation owning the same. 
 
 The fact that in conducting its train over these tracks the 
 defendant company did so, subject to such rules and regulations 
 of the other company as were necessary for the safe and conven- 
 ient conduct of its business, in nowise mihtates against the prop- 
 osition that the defendant company had a legal right to the use 
 of these tracks, and that during such use they were properly the 
 line of the defendant company, within the meaning or the "Safety 
 Appliance Act." It was therefore in violation of the Act that it 
 allowed the car in question to be hauled in its own train, in the 
 control of its own employees, over a fine upon which it had a legal 
 right to conduct its interstate traffic. Such contracts are not 
 unusual, since we find cases in the books arising out of litigation 
 
SCOPE. 35 
 
 concerning such agreements. The fact, if it be a fact, that in 
 this case the inspection of the cars was made by the servants of 
 the Central Railroad of New Jersey, can not reUeve the defend- 
 ant from the liabiHty imposed by the Act. It can not by con- 
 tract dispense with any care required of it by law, and the most 
 that could be said of such a situation would be that it had volun- 
 tarily made the inspectors of the other company its own. — Grdyi 
 C. J., p. 4. 
 Gray v. Louisville & N. R. Co., 197 Fed., 874. See also Devine v. 
 Chicago ck C. JR. R. Co., 102 N. E., 803; and definition of "miZ- 
 road,^' as used in the Act to regulate commerce, p. 29, ante, and 
 as used in the Hours of Service Act, p. 121, "post. 
 
 6. The Acts apply to all railroads participating, and to all vehicles 
 
 hanled or used, in the movement of commerce within the Terri- 
 tories of the United States. 
 
 v. S. V. El Paso & S. W. R. Co., [unreported]. 
 
 District Court, Second District of Arizona, January 30, 1907. 
 The plaintiff in this case in each instance has alleged that 
 the car alleged to have been handled in violation of the Act was 
 ''a car gene rail jr used in the movement of interstate traflB.c," or 
 '^was engaged m moving traffic in and between the Territories 
 of the United States,'^ and although the complaint did not in so 
 many words allege that the defendant was a common carrier 
 engaged in interstate commerce by railroad," it did allege that 
 it was "a common carrier engaged in commerce- by railroad 
 among the several Territories of the United States, particularly 
 the Territories of Arizona and New Mexico," which allegation, 
 under the provisions of section 1 of the Act of 1903, that declares 
 that the '' Safety Appliance Act" shall be held to apply to com- 
 mon carriers by railroad in the Territories and the District of 
 Columbia, is sufficient, the interterritorial commerce therein al- 
 leged being equivalent under the Act of 1903 to interstate com- 
 merce under the original Act of March 2, 1893. — Doan, D. J. 
 
 V. S. V. Atchison, T. <& S. F. Ry. Co. [unreported]. 
 
 District Court, Fourth District of Arizona, July 17, 1908. 
 Neither is it Jiecessary, in case of a prosecution to recovei 
 the penalty for a violation that occurs within this Territory, 
 that the car be engaged in interstate traffic. It is sufficient 
 under section 1 of the amendment of 1903 if the defective car be 
 hauled by a common carrier within the Territory, even though 
 the carrier be not engaged in interstate commerce, provided the 
 car does not come within the exceptions embraced in section 6 
 of the original Act as amended April 1, 1896, or is not used upon 
 a street railway. — Sloan, D. J. 
 .See also Stoutenhurgh v. HennicJc, 129 U. S., 141; Hanley v* 
 Kansas City Southern Ry. Co., 187 U. S., 617. 
 
 7. The Acts apply to all cars containing interstate traffic. 
 Voellcer v. Chicago, M. cJ& St. P. Ry. Co., 116 Fed., 867. 
 
 Circuit Court, Northern District of Iowa, June 16, 1902. 
 
 Whenever cars are designed for interstate traffic, the com- 
 pany owning or using them is bound to equip them as required 
 
36 SAFETY APPLIANCE ACTS. 
 
 by the Act of Congress; and when it is shown, as it was in this 
 case, that a railway company is using the car for transportation 
 purposes between two States, sufficient is shown to justify the 
 court in ruling that the Act of Congress is apphcable to the 
 situation. — Shiras, D. J., p. 874. 
 U. S. V. Northern Pacific Terminal Co., 144 Fed., 861. 
 District Court, District of Oregon, April 2, 1906. 
 
 The fact that the cars in question were at the time caiTying 
 a commodity that had been shipped from one State into or 
 through another demonstrates the averment, however, that it 
 was then engaged in moving interstate traffic. — Wolverton, D. J., 
 p. 863. 
 U, S. V. Central of Georgia Ry. Co., 157 Fed., 893. 
 
 District Court, Northern District of Alabama, Sept. 27, 1907. 
 It has been proven in this case, and there is no conffict in the 
 evidence, that both of the cars in question were carr^Tiig traffic 
 consigned from a point in one State to a point in another State. 
 This makes such traffic interstate traffic. While the evidence 
 does not show that the defendant hauled the car across the State 
 line, still the defendant is engaged in interstate traffic, no matter 
 how short the movement, if the traffic hauled is in course of 
 movement from a point in one State to a point in another. — 
 Hundley, D. J., p. 894. 
 U. S. V. Wheeling cfc L. E. R. Co., 167 Fed., 198. 
 
 District Court, Northern District of Ohio, June 16, 1908. 
 All of the cars used by a raikoad engaged in intei*state com- 
 merce, in the natural course of their use, are instrumentaUties of 
 interstate commerce. Whether they carry interstate traffic 
 themselves or are hauled in a train which contains interstate 
 traffic, the effect is the same. — Tayler, D. J., p. 200. 
 WinUer v. Philadelphia & R. Ry. Co., 53 Atl., 90. 
 Superior Court of Delaware, June 10, 1902. 
 
 If, however, the car being moved had come from a point 
 out of the State with freight to be here delivered, it would be 
 moving interstate commerce. This would be so even though the 
 car to which the tender was being coupled was not the car used 
 in interstate traffic, if the removal of such car was a necessary 
 step in getting at and moving said interstate car. — Lore, Ch. J., 
 pp. 91-92. 
 
 8. The Acts apply to all cars used or hauled in interstate trains: 
 U. S. Y. International <& Great Northern R. Co., 174 Fed., 638. 
 Circuit Court of Appeals, 5th Circuit, December 21, 1909. 
 The Act, as amended, apphes to all cars and trains operated 
 by a railroad carrier of interstate commerce over an interstate 
 railway, irrespective of whether the defective car is being hauled 
 from one point to another in the same State, or not, it being 
 part of a train engaged in interstate traffic. — Shelby, C. J.,p. 640. 
 Chicago, M. <& St. P. Ry. Co. v. U. S., 165 Fed., 423. 
 
 Circuit Court of Appeals, 8th Circuit, November 27, 1908. 
 Our conclusion is that the hauling by a railroad company 
 from one State to another of a car not equipped with the re- 
 
SCOPE. 87 
 
 quired safety appliances, upon its own trucks, as a part of a 
 train of other cars moving in interstate commerce, is a use of 
 the defective car in violation of the Act of Congress, though it 
 is empty and is being transported to a repair shop in the State 
 of its destination * * *. The car in question was one of the 
 connecting Unks betw^een the engine and the caboose and was a 
 constituent part of a train movmg on an interstate mission.— 
 Hoolc, C. J., pp. 424-425. 
 V. S. V. St. Louis, I. M. & S. Ry. Co., 154 Fed., 516; V. S. v. Erie 
 R. Co., 166 Fed., 352; U. S. v. Wheeling <& L. E. R. Co., 167 
 Fed., 198; U.S. v. Baltimore & 0. R. Co., 170 Fed., 456; V. S. 
 V. Southern Ry. Co., 170 Fed., 1014; Norfolk cfc W. Ry Co. v. 
 U. S., 177 Fed., 623: Hohenleitner v. Southern Pacific Co., 177 
 Fed., 798; Erie R. Co. v. Russell, 183 Fed., 722; V. S. v. Western 
 & A. R. Co., 184 Fed., 336; Louisville & N. R. Co. v. U. S., 186 
 Fed., 280; Southern Ry. Co. v. Snyder, 187 Fed., 492; Southern 
 Ry. Co. -v. Railroad Com. of Ind., 100 N. E., 337; Breslcy v. Min- 
 neapolis dc St. L. Ry. Co., 132 N. W., 337; V. S. v. Chesapealce cfc 
 0. Ry. Co., D. C, S. D. West Virginia, Dec. 2, 1908, Keller, 
 D. J. [unreported]; U. S. v. Southern Ry. Co. and tl. S. v. Atlantic 
 Coast Line R. Co., D. C, D. South Carolina, Feb. 24, 1909, 
 Brawley, D. J. [unreported]; U. S. v. Baltimore & 0. R. Co.y 
 D. C, S. D. Ohio, June 10, 1909, Sater, D. J. [unreported]; 
 TJ. S. V. ToTedo Terminal R. Co., and U. S. v. Baltimore <& 0. R, 
 Co., D. C, N. D. Ohio, June 15, 1909, Cochran, D. J. [unreported] . 
 See also Thornhrov. Kansas City,M. & 0. Ry. Co., 139 Pac, 410. 
 And see Johnston v. Chicago Great Western Ry Co. 164 S. W., 
 260, with respect to the application of the Acts to work trains. 
 
 (a). "Haul" defined: 
 
 V. S, V. St. Louis, L M. & S. Ry. Co., 154 Fed., 516. 
 
 District Court, Western District of Tennessee, June 11, 1906. 
 To '^hauJ" means (1) to ''drag w^th force or violence, 
 to puU, to draw, to tug, to drag; (2) to carry or convey in a 
 cart or other vehicle."— Worcester's Dictionary. Defendant 
 insists that the word ' 'haul" as used in the Act of Congress takes 
 the second definition given above — that is, to ' 'carr}' or convey in 
 a cart or other vehicle" — that is, that these two cars must have 
 been at the time actually in use conveying commodities of 
 interstate commerce. Such a construction woiild so far negative 
 the purpose of the Act in question as to well-nigh render it of 
 no practical use. — McCall, D. J., p. 518. 
 
 (b). "Used" defined: 
 
 TJ. S. V. Spokane & L E. R. Co., 206 Fed., 988. 
 
 District Court, Eastern District of Washington, Sept. 17, 1912. 
 The term "used" means "emploj^ed for a purpose," and 
 imports a certain degree of permanence. 
 
 Section 7 of the act of Congress of March 3, 1851, entitled 
 ' 'An act to limit the liability of shipowners and for other pur- 
 poses," contained the following exception or saving clause : "This 
 act shall not apply to the owner or owners of any canal boat, 
 barge, or lighter, or to any vessel of any description whatever 
 used in rivers or inland navigation." 
 
88 SAFETY APPLIANCE ACTS. 
 
 And in construing the term '^used" in Moore v. American 
 Trans. Co., 24 How., 1, the court said: ^'This word used means, 
 in the connection found, employed, and doubtless, in the mind of 
 Congress, was intended to refer to vessels solely employed in 
 rivers or inland navigation." — Rudkin, D. J., pp. 990-991. 
 
 (c). The term "Used" is of broader significance than the word 
 "Hauled:" 
 U. S. v. St. Louis S. W. Ry. Co. of Texas, 184 Fed., 28. 
 
 Circuit Court of Appeals, 5th Circuit, December 13, 1910. 
 The statute foroids hauling and using. Why were both 
 words used? If the car was fully loaded and on the track 
 ready to be started as a part of an interstate train, with engine 
 attached and fired, and requiring only the touch of the engineer 
 to start, would not the car be ''used" or in use, within the 
 statute, before it was hauled ? If it was without the automatic 
 coupler, so that the brakeman would have to go between the 
 cars to couple them, it would clearly be within the mischief the 
 statute was intended to prevent. ''Used" has other meanings 
 than "hauled." It is a broader word. — Shelby, C. J., p. .32. 
 
 (d). "Train" defined. 
 
 TJ. S. V. Chicago Great Western Ry. Co., 162 Fed., 775. 
 
 District Court, Northern District of Iowa, May 6, 1908. 
 
 If you find from the evidence that train No. 73, mentioned 
 in counts 7 and 8 and in coimts 9 and 10 of the petition, was 
 scheduled to run regularly as one train between Chicago and 
 Oelwein, and that it did so run between said points then I am 
 of the opinion, and so charge you, that within the meaning of 
 this law it was but a single train, though certain of the cars com- 
 posing it when it started on the run may have been set out and 
 others placed therein at different stations along the line; and 
 even though the train crew and the engine and caboose were 
 changed and another engine and another crew hauled it from 
 Dubuque to Oelwein. — Reed, D. J., p. 780. 
 TJ. S. V. Boston & M. R. Co., 168 Fed., 148. 
 
 District Com-t, District of Massachusetts, January 5, 1909. 
 By "tram" I understand one aggregation of cai-s drawn 
 by the same engine, and if the engine is changed I understand 
 there is a different train. — Dodge, D. J., p. 153. 
 TJ. S. V. Grand Trunk Ry. Co. of Canada, 203 Fed., 775. 
 
 District Court, Western District of New York, March 8, 1913. 
 In Webster's Dictionary the word "train" is defined as a 
 "connected line of cars or carriages on a railroad." In Detroit 
 Street Ry. v. MUls, 85 Mich., 634, it is stated that "a train 
 is a continuous or connected line of cars or carriages on a rail- 
 road." In Dacey v. Old Colony R. Co., 153 Mass., 112, and 
 in Carson v. B. dfe A. R. Co., 164 Mass., 523, a train is defined 
 to be "a locomotive and one or more cars coupled together and 
 run upon a railroad." These definitions induce the belief that 
 Congress in enacting the Safety Appliance Act used the word 
 "tram", in the ordinary and not the technical sense regardless of 
 the varying rules and practices of carriers. 
 
SCOPE. 39 
 
 The Supreme Court of the United States in Johnson v. South- 
 ern Pacific By. Co., 196 U. S., 1, supports the view that even 
 though the statute was in derogation of the common law, it 
 should not be so strictly construed as to defeat the purpose of 
 Congress, and it was there held that locomotive engines are 
 included in the Act under the words ''any car." By a parity 
 of reasoning the words ''any train'' are believed to clearly in- 
 clude all trains having cars coupled together and locomotives 
 drawing them, irrespective of whether a caboose is attached or 
 markers displayed. — Hazel, D. J., p. 776. 
 See also Erie R.Co. v. U. S., 197 Fed., 287; U. S. v. Pere Mar- 
 quette R. Co., 211 Fed., 220; La Merev.Ry. Trans. Co. of Minne- 
 apolis, 145 N.W., 1068. 
 
 9. The Acts apply to all cars used or hauled in connection with inter- 
 state cars: 
 U. S. Y.- International <& Great Northern R. Co., 174 Fed., 638. 
 Circuit Court of Appeals, 5th Circuit, December 21, 1909. 
 'The effect of the amendment is to apply the provisions and 
 requirements of the Act to aU cars used on any railroad engaged 
 in interstate commerce and to all other cars used in connection 
 theTewith..— Shelly, C. J., p. 640. 
 Chicago Junction Ry. Co. v. King, 169 Fed., 372. 
 
 Circuit Court of Appeals, 7tb Circuit, February 3, 1909. 
 The movement tliat was intended and under way when the 
 plaintiff was caught was of a defective interstate car in connec- 
 tion with other cars on an interstate highwav, and so was within 
 the letter of the original Act of 1893 as well as of the interpre- 
 tative amendment of 1903. — Balcer, C. J., p. 377. 
 Chicago cfc N. W. Ry. Co. v. TJ. S., 168 Fed., 236. 
 
 Circuit Court of Appeals, 8th Circuit, March 10, 1909. 
 
 Reading these two statutes [original and amended Acts] 
 together, as the^r have been interpreted by the courts, thev 
 include, first, vehicles actually moving interstate traffic; second, 
 such vehicles, though empty, when moving to points for the 
 purpose of receiving interstate traffic, or otherwise commerciallv 
 used by the carrier; and third, vehicles used in connection with 
 vehicles embraced in either of the two former classes. — Amidonj 
 D. J., p. 237. 
 U. S. V. Chicago dc N. IF. Ry. Co., 157 Fed., 616; U. S. v. 
 Chicago Great Western Ry. Co., 162 Fed., 775; U. S. v. Southern 
 Pacific Co., 167 Fed., 699; Wabash R. Co. v. U. S. and Elgin 
 J. cfc E. Ry. Co. V. U. S., 168 Fed., 1; U. S. v. Southern Padfic 
 Co., 169 Fed., 407; Hohenleitner v. Southern Pacific Co., Ill 
 Fed., 796; Campbell v. Spolane <& I. E. R. Co., 188 Fed., 516; 
 Southern Ry. Co.'y. Snyder,' 205 Fed., 868; Felt v. Denver db 
 R. G. R. Co., 110 Pac, 215; U. S. v. Chesapeake & 0. R. Co., 
 D. C, S. D. West Virginia, Dec. 2, 1908, Keller, D. J. [unreported]: 
 TJ. S.v. Southern Ry. Co. and U. S.v. Atlantic Coast Line R. Co., 
 D. C, D. South Carohna, Feb. 24, 1909, Brawley, D. J. [imre- 
 ported]; U. S: v. Baltimore dc 0. R. Co. and U. S. v. Toledo 
 Terminal R. Co., D.C., N. D. Ohio, June 15, 1909, Cochran, D. J. 
 [unreported]; TJ. S. v. Southern Pacific Co., D. C, D. Nevada, 
 
40 SAFETY APPLIANCE ACTS. 
 
 Nov. 24, 1909, Farrington, D. J. [unreported]. But see Siegel 
 V. New York Central & H. R. R. Co., 178 Fed., 873. 
 
 — (a). And cars so hauled or nsed in connection with interstate cars 
 need not be coupled nor contiguous to such cars in order to come 
 within the purview of the Acts. 
 Norfolk dc W. Ry. Co, v. U. S., Ill Fed., 623. 
 
 Circuit Court of Appeals, 4th Circuit, March 4, 1910. 
 
 Nor do we think it can be successfully contended, as sought 
 to be done by the fourth proposition, that the Act does not 
 apply to a car containing only domestic commerce, although 
 hauled m a train with other cars containing interstate commerce, 
 unless it be coupled to a car containing interstate commerce. 
 The overw^helming weight of authoritj" is against such conten- 
 tion. [ TJ. 8. V. Erie R. Co., 166 Fed., 352 ; ScUemmer v. Buffalo, 
 R. & P. Ry. Co., 205 U. S., 1 : Walasli R. Co. v. TJ. ^.,168 Fed., 
 1 ; Chicago, M. <& St. P. Ry. Co. v. U. S., 165 Fed. 423; Chicago 
 (& N. W. Ry. Co. V. U. S.,'l68 Fed., 2:6: V. S. v. Southern Ry. 
 Co., 170 Fed., 1014; U. S. v. Baltimore cfc 0. R. Co., 170 Fed., 
 466.]— Dayton, D. J., p. 628. 
 Louisville d; N. R. Co. v. U. S., 186 Fed., 280, 
 
 Circuit Court of Appeals, 6th Circuit, March 3, 1911. 
 
 Then, further, it is argued that the ''connection" of the car 
 carrying interstate freight which the Act intends is an immediate 
 connection with cars not properly equipped and that there was 
 neither allegation nor proof tnat these conditions existed. 
 Because the Act visits a penal consequence upon its violation and 
 of other considerations which we need not dwell upon, there was 
 some ground for argument that thelaw^shoidd have such restricted 
 operation. But the trend of decision in the circuit courts and the 
 circuit courts of appeals has been the other way, and is to the 
 effect that the connection of the cars in a train is not required to 
 be immediate, and we are not so far convinced that those deci- 
 sions are wrong as to justify us in holding to the contrary. — 
 Sever ens, C. J., p. 284. 
 V. S. V. Western c& A. R. Co., 184 Fed., 336. 
 
 District Court, Northern District of Georgia, December 1, 1910. 
 It seems perfectly clear to me, and such, I think, is the effect 
 of all decisions that have been rendered, that it is immaterial 
 whether the car wliich is engaged in interstate commerce, carry- 
 ing an interstate shipment, is immediately connected with the 
 car having the defective appliance or not, so long as it is in the 
 same train of cars. — Newman, D. J., p. 337. 
 See also Item 8, p. 36, ante. 
 
 — Per Contra : 
 
 U.S.w. Illinois Central R. Co., 166 Fed., 997. 
 
 10. The Acts apply to any car the movement of which is necessary 
 to the movement of an interstate car. 
 Winkler V.Philadelphia & R. Ry. Co., 53 Atl., 90. 
 Superior Court of Delaware, June 10, 1902-. 
 
 If, however, the car being moved had come from a point out 
 of the State, with freight to be here delivered, it would be moving 
 
SCOPE. 41 
 
 interstate commerce. This would be so even though the car to 
 which the tender was being coupled was not the car used in inter- 
 state traffic, if the removal of such car was a necessary step in 
 getting at and moving said interstate car. — Lore, CJi.J., pp. 91-92. 
 
 11. The Acts apply to all cars used or hauled on any railroad which 
 is a highway of interstate commerce. 
 Southern By. Co. v. U. S., 222 U. S., 20. 
 Supreme Court, October 30, 1911. 
 
 The real controversy is over the true significance of the words 
 ''on any railroad engaged" in the first clause of the amendatory 
 provision. But for them the true test of the application of that 
 clause to a locomotive, car, or similar vehicle would be, as it was 
 under the original Act, the use of the vehicle in moving interstate 
 traffic. On the other hand, when they are given their natural 
 signification, as presumptively they should be, the scope of the 
 clause is such that the true test of its application is the use of the 
 vehicle on a railroad which is a highway of interstate commerce, 
 and not its use in moving interstate traffic. And so certain is 
 this that we think there would be no contention to the contrary 
 were it not for the presence in the amendatory provision of the 
 third clause ''and to aU other locomotives, tenders, cars, and 
 similar vehicles used in connection therewith." In this there 
 is a suggestion that what precedes does not cover the entire 
 field, but at most it is only a suggestion and gives no warrant 
 for disregarding the plain words "on any railroad engaged" 
 in the first clause. True, if they were rejected, the two clauses, 
 in the instance of a train composed of many cars, some moving 
 interstate traffic and others moving intrastate traffic, would by 
 their concurrent operation bring the entire train within the 
 statute. But it is not necessary to reject them to accomplish 
 this result, for the first clause, with those words in it, does even 
 more ; that is to say, it embraces every train on a railroad which 
 is a highwaj^ of interstate commerce mthout regard to the class 
 of traffic which the cars are moving. The two clauses are in no 
 wise antagonistic, but, at most, only redundant, and we perceive 
 no reason for believing that Congress intended that less than full 
 effect should be given to the more comprehensive one, but, on the 
 contrary, ^ood reason for believing otherwise. As between the 
 two opposing views, one rejecting the words "on any railroad 
 engaged" in the first clause and the other treating the third 
 clause as redundant, the latter is to be preferred, first, because it 
 is in accord with the manifest purpose, shown throughout the 
 amendatory Act, to enlarge the scope of the earlier one and to 
 make it more effective, and, second, because the words which it 
 would be necessary to reject to give effect to the other view were 
 not originally in the amendatory Act, but were inserted in it by 
 way of amendment while it was in process of adoption [Cong. 
 Rec, 57th Cong., 1st Sess., vol. 35, pt. 7, p. 7300; id., 2d Sess., 
 vol. 36, pt. 3, p. 2268], thus making it certain that without them 
 the Act would not express the will of Congress. 
 
42 SAFETY APPLIANCE ACTS. 
 
 For these reasons it must be held that the original Act as 
 enlarged by the amendatory one is intended to embrace all loco- 
 motives, cars, and similar vehicles used on any railroad which is 
 a highway of interstate commerce. — Van Devanter, Justice, 
 pp. 24-25-26. [Aflfirming the judgment of the District Court for 
 the Northern District of Alabama in U. S. v. Southern Ry. Co., 164 
 Fed., 347.] 
 Brinkmeier v. Missouri Pacific Ry. Co., 224 U. S., 268; ]]^hash 
 R. Co. v. U. S.Sind Elgin, J. & E. Ry. Co. v. V. S., 168 Fed., 
 1; Southern Ry. Co. v. Railroad Com. of Ind., 100 N. E., 337; 
 Devine v. Chicago d) C. R. R. Co., 102 N. E., 803; Missouri 
 Pacific Ry. Co. v. BrinJcmeier, 93 Fac, 621; Brinhmeier v. 
 Missouri Pacific Ry. Co., 105 Pac, 221; Felt v. Denver & R. 
 G. R. Co., 110 Pac, 215; Burho v. Minneapolis & St. L. Ry. Co., 
 141 N. W., 300; Popplar v. Minneapolis, St. P. & S. S. M. Ry. 
 Co., 141 N. W., 798; Stearns v. Chicago, R. I. <& P. Ry. Co., 148 
 N. W., 128; Devine v. Illinois Central R. Co., 156 III. App. 369; 
 V. S. V. Northern Pacific Ry. Co., D. C, W. D. Washington, 
 Dec. 6, 1913, Cushman, D. J. [unreported]. See also Southern 
 Ry. Co. V. Croclcett, 234 U. S., 725; Thomhro v. Kansas City, 
 M. & 0. Ry. 6^0., 139 Pac, 410; Johnstonv. Chicago Great West- 
 em Ry. Co., 164 S. W., 260. 
 
 Per Contra: 
 
 U. S. V. Erie R. Co., 166 Fed., 352. See also Siegel v. New Yorh Central <5e H. 
 R.R. Co., 178 Fed., 873; Lulen v. Lake Shore <k M. S. Ry. Co., 94 N. E., 175. 
 
 12. The Acts apply to all cars regularly ased in interstate com- 
 merce. 
 Johnson V. Southern Pacific Co., 196 U. S., 1. 
 Supreme Court, December 19, 1904. 
 
 Confessedly this dining car was under the control of Congress 
 while in the act of making its interstate journey, and in our 
 judgment it it was equally so when waiting for the train to be 
 made up for the next trip. It was being regularly used in the 
 movement of interstate traffic and so within the law. — Fuller, 
 Chief Justice, p. 22. 
 Wheeling Terminal Ry. Co. v. Russell, 209 Fed., 795. 
 
 Circuit Court of Appeals, 4th Circuit, December 8, 1913. 
 The cars had been employed in interstate commerce. It 
 was not shown that they had been withdrawn from its service. 
 The reasonable presumption, therefore, is that thej^ remained in 
 it. In practice such presumption will not work injustice. The 
 defendant carrier will usually have Httle difficulty in showing, 
 when it wishes to do so, where the cars were to be taken and for 
 what purpose. For the plaintiff to trace them may be difficult 
 and expensive. — Rose, D. J., p. 799. 
 Wabash R. Co. v. U. S.; Elgin, J. & E. Ry. Co. v. U. S., 168 Fed., 1- 
 Circuit Court of xAppeals, 7th Circuit, February 3, 1909. 
 
 It is not reasonable to suppose that Congress intended to 
 cover only the smaller part of the dangers; and since the lan- 
 guage employed is entirely consistent with the larger meaning, 
 section 2 of the Act of 1893 should be held to forbid an interstate 
 carrier from haufing or using on its line any car that is custom- 
 
SCOPE. 43 
 
 arily or generally employed in moving interstate traffic, and 
 that is not equipped with automatic couplers, even though at the 
 particular time the car be empty or be moving intrastate traffic. — 
 Baker, C. J., p. 3. 
 
 Snead v. Central of Georgia Ry. Co., 151 Fed., 608. 
 
 Circuit Court, Southern District of Georgia, March 25, 1907. 
 While the original Safety AppHance Act made it unlawful 
 for common carriers engaged in mterstate commerce to haul 
 cars not properly equipped when ^'used in moving interstate 
 traffic," the amendatory Act of 1903 declared that the ori^nal 
 provisions should be held to apply to **all trains, locomotives, 
 tenders, cars, and similar vehicles used on any railroad engaged 
 in interstate commerce." Obviously, this was an explicit recog- 
 nition hj Congress of its constitutional right to control the instru- 
 mentaUties, and prescribe conditions for all interstate common 
 carriers. This is also the construction given in the recent case of 
 U. S. V. Great Northern Ry Co., 145 Fed., 438, where the court 
 held that the amended Act applied to all cars regularly used on 
 any railroad engaged in interstate commerce, not only while 
 actually in use in such commerce, but at all times when in use on 
 such road. — Speer, D. J., pp. 624-625. 
 
 U. S. V. Northern Pacific Terminal Co., 144 Fed., 861. 
 District Court, District of Oregon, April 2, 1906. 
 
 It makes but little difference, therefore, whether the car 
 contained at the time any commodity being carried as freight 
 or not, if the car was one being used in moving interstate traffic, 
 not in the sense that at the particular time it was going loaded 
 or.partially so with a commodity being shipped from one State into 
 another or others, but that it was being employed in a service 
 that was moving interstate traffic. — Wolverton, D. J., p. 863. 
 
 Z7. S. V. .S'^. Louis, I. M. & S. Ry. Co., 154 Fed., 516. 
 
 District Court, Western District of Tennessee, June 11, 1906. 
 The phrase ''used in moving interstate traffic" does not only 
 mean that the car must be actually loaded with interstate traffic 
 and on its journey from State to State at the time of the alleged 
 violation, but its more natural meaning is that it is a car that 
 has been used for such purpose, stands ready, and is intended 
 to be used for such purpose whenever needed. — McCall, D. J., 
 p. 518. 
 
 U. S. V. Chicago cfc N. W. Ry. Co., 157 Fed., 616. 
 
 District Court, District of Nebraska, December 30, 1907. 
 It [the amendment of 1903] left no room for a distinction 
 between the hauling of a car actually engaged in interstate com- 
 merce and the haiding of a car which is generally used in moving 
 interstate commerce, although not actually so engaged at the 
 time when the offense is charged as being committed. — Hunger, 
 D. J., p. 617. 
 
 U. S. V. Wheeling & L. E. R. Co., 167 Fed., 198. 
 
 District Court, Northern District of Ohio, June 16, 1908. 
 Endless confusion woiUd arise if any distinction was made 
 under such conditions between a car loaded with interstate 
 
44 SAFETY APPLIANCE ACTS. 
 
 traffic and an empty car regularly used in the movement of 
 interstate traffic but at the time unloaded and coupled to an- 
 other car actually in use in the movement of interstate traffic. 
 Of course the same thing must be said of the loaded car, what- 
 ever the character of the freight it carried, if it is a car regularly- 
 used in the movement of interstate traffic. — Tayler, D. J., pp. 
 201-202. 
 Hoherdeitner Y . Southern Pacific Co., 177 Fed., 796; CampheU v. 
 Spolcane & I. E. R. Co.,. 188 Fed., 516; Felt v. Denver c& 
 R. G. R. Co., 110 Pac, 215; Devine v. Illinois Central R. Co., 
 
 156 111. App., 369; Snyder v. Southern Ry. Co., C. C, E. D. 
 Tennessee, Jan. 21, 1910, Sanford, D. J. [unreported]. 
 
 Per Contra: 
 
 Johnson v. Southern Pacific Co., 117 Fed. 462. 
 
 13. The Acts apply to empty cars: 
 
 Johnson V. Southern Pacific Co., 196 U. S., 1. 
 Supreme Court, December 19, 1904. 
 
 Besides, whether cars are empty or loaded, the danger to 
 employees is practically the same, ana we agree with the observa- 
 tion of District Judge Shiras in Voelker v. nailway Company, 116 
 Fed., 867, that '4t can not be true that on the eastern trip 
 the provisions of the Act of Congress would be binding upon the 
 company, because the cars wore loaded, but would not be binding 
 upon the return trip, because the cars are empty." — Fuller, Chief 
 Justice, pp. 21-22. 
 North Carolina R. Co. v. Zachary, 232 U. S., 248; Voellcer v, 
 Chicago, M. cfc St. P. Ry. Co., 116 Fed., 867; U. S. v. Northern 
 Pacific Terminal Co., 144 Fed., 861; V. S. v. St. Louis, I. M, 
 <& S. Ry. Co., 154 Fed., 516: U. S. v. Chicago cfc N. W. Ry. Co., 
 
 157 Fed., 616; Z7. S. v. Louisville <& N. R. Co., 162 Fed., 185; 6%^- 
 cago,M. ck St. P. Ry. Co. v. U.S., 165¥ed.,42S: U.S.v. Wheeling c& 
 L. E.R. Co. ,167¥e.d., 198; WahashR.Co.v. U. 8., and Elgin, J. ii)E. 
 Ry. Co. V. U. S., 168 Fed., 1 ; Chicago cfe N. W. Ry. Co. v. U.S., 168 
 Fed.,236; U.S. v. Southern Ry. Co., 170¥ed.,10U; U.S. v. Inter- 
 nxitional dc Great Northern R. Co., 174 Fed., 638; Hohenleitner v. 
 Southern Pacific Co., Ill Fed., 796; Southern Ry. Co. v. Snyder, 
 187 Fed., 492; Campbell y. Spolcane cfc /. E. R. Co., 188 Fed., 516; 
 Felt V. Denver (& R. G. R. Co., 110 Pac, 215; Lulcenv. Lalce 
 Shore & M. S. Ry Co., 94 N. E., 175; U S. v. Atchison, T. <& 
 S. F. Ry. Co., D. C. Arizona, July 17, 1908, Sloan, D. J. [unre- 
 ported]; U. S. V. ChesapeaJce & 0. Ry Co., D. C, S. D. West 
 Virginia, Dec. 2, 1908, Keller, D. J. [unreported]; Snyder v. 
 Southern Ry. Co., C. C, E. D. Tennessee, Jan. 21, 1910, Sanford, 
 D. J. [unreported]. See dl^o Johnson v. Great Northern Ry. Co., 
 178 Fed., 643; Siegel v. New Yorlc Central cfc H. R. R. Co., 178 
 Fed., 873; MaUott v. Hood, 66 N. E., 247. 
 
 Per Contra: 
 
 Johnson v. Southern Pacific Co., 117 Fed. 462. 
 
SCOPE. 45 
 
 (a). The hauling of a car itself is commerce within the purview of 
 the Acts. 
 Z7. S. V. Chicago & N. W- %• (^o,, 157 Fed., 616. 
 
 District Court, District of Nebraska, December 30, 1907. 
 The mere hauling of the car itseK was engaging in commerce. 
 If the car was taken apart and loaded upon another car and 
 hauled by it, no question could be made that it would constitute 
 commerce as much as if the car was loaded with wheels or rails 
 or ties for use by the raih'oad. — Hunger, D. J., p. 619. 
 
 14. The Acts apply to all cars commercially used by an interstate 
 carrier ; 
 Chicago c& N. W. Ry. Co. v. U. S., 168 Fed., 236. 
 
 Circuit Court of Appeals, 8th Circuit, March 10, 1909. 
 
 Reading these statutes [original and amended Acts] together, 
 as they have been interpreted by the courts, they include, first, 
 vehicles actually moving interstate traffic; second, such vehicles, 
 though empty, when moving to points for the purpose of receiv- 
 ing interstate traffic, or otherwise conmaercially used hj the car- 
 rier; and third, vehicles used in connection with vehicles em- 
 braced in either of the two former classes. — Amidon, D. J., p. 237. 
 U. S. y. Southern Pacific Co., 169 Fed., 407. 
 
 Circuit Court of Appeals, 8th Circuit, April 3, 1909. 
 
 As a corollary to the classification so made [in C. cfc N. W. 
 Ry. Co. V. U. S., 168 Fed., 236] we reached and stated the 
 conclusion that any movement of vehicles after they became 
 defective, for the purpose of repairing them, must, in order to 
 escape the penalties imposed by the Act, be 'VhoUy excluded 
 from commercial use themselves, and from other vehicles which 
 are commercially employed." — Adams, C. J., p. 409. 
 See also Southern Ry. Co. v. Snyder, 187 Fed., 492; Southern Ry, 
 Co. V. Snyder, 205 Fed., 868; and Item 11, p. 41, ante. 
 
 — (a). And cars used or hauled by an interstate carrier for the trans- 
 portation of its own products or property are commercially used 
 within the purview of the Acts. 
 U. S. y. Chicago, M. <& St. P. Ry. Co., 149 Fed., 486. 
 
 District Court, Southern District of Iowa, November 27, 1906. 
 Another defense pleaded is that, as the company was haul- 
 ing its own rails, and would receive no compensation, it was not 
 engaged in commerce or traffic. That is to sav, that construc- 
 tion trains with cars both hauled and used, both locally and 
 across state lines, and cars hauled and used, as just stated, for 
 hauling its own products, can still be equipped with links and 
 pins and fastened with chains, and can be carried back and 
 forth over thousands of miles of roads. Counsel wiU not expect 
 me to discuss that. — McPherson, D. J., pp. 490-491. 
 TJ. S. V. Southern Ry. Co. [unreported]. 
 
 District Court, District of South Carolina, February 24, 1909. 
 
 It (the court) wiU instruct you that if the car referred to, 
 
 containing sand, was being moved from South Carolina into 
 
 North Carolina for the company's own purposes, if it was car- 
 
46 SAFETY APPLIANCE ACTS. 
 
 ried in a train which was engaged in interstate commerce, and 
 this car was defective, it faUs within the denunciation of the 
 statute still. — Brawley, D. J. 
 V. S. V. CMcago cfc N. W. Ry. Co., 157 Fed., 616; Johnston v. 
 Chicago Great Western Ry. Co., 164 S. W., 260. 
 16. The expression "any car," as used in the Acts, comprehends all 
 cars running on the rails : 
 Johnson V. Southern Pacific Co., 196 U. S., 1. 
 Supreme Court, December 19, 1904. 
 
 And manifestly the word "car" was used [in the statute] 
 in its generic sense. There is nothing to indicate that any 
 particular kind of car was meant. Tested by context, subject 
 matter, and object, "any car" meant all kinds of cars running 
 on the rails, including locomotives. — Fuller, Chief Justice, 
 pp. 15-16. 
 
 V. S. V. St. Louis S. W. Ry. Co. of Texas, 184 Fed., 28; Central 
 Vermont Ry. Co. v. V. S., 205 Fed., 40. 
 
 — (a). Locomotives; 
 
 Johnson V. Southern Pacific Co., 196 U. S., 1 ; Schlemmer v. Buffalo, 
 R. d: P. Ry. Co., 205 U. S., 1 ; U. S. v. Chicago, M. c& St. P. 
 Ry. Co., 149 Fed., 486; U. S. v. Chicayo cfc N. W. Ry. Co., 157 
 Fed., 616; Chicago, M. & St. P. Ry. Co., v. TJ. S., 165 Fed., 
 423; TJ. S. V. Southern Pacific Co., 167 Fed., 699; V. S. v. South- 
 em Ry. Co., 170 Fed., 1014; State v. Kelly et aZ., 70 L. R. A., 450; 
 U. S. V. BaUimore cfc 0. R. Co., D. C, N. t). West Virginia, Jan. 
 18, 1909, Davton D. J. [unreported]; TJ. S. v. Southern Pacific 
 Co., D. C, D;^ Nevada, Nov. 24, 1909, Farrington, D. J. [unre- 
 ported]; TJ. S. Y. Northern Pacific Ry. Co., D. C, W. D., Wash- 
 mgton, Dec. 6, 1913, Cushman, D. J. [imreported]. See also 
 Southern Ry. Co. v. Crockett, 234 U. S., 725. 
 
 — Per Contra: 
 
 Johnson v. Southern Pacific Co., 117 Fed., 462; Wabash R. Co. v. U. S., 172 
 Fed., 864. 
 
 — (i). The locomotive at the head of a freight train is a "freight car" 
 within the purview of the Acts. 
 
 Chicago, M. S P. S. Ry. Co. v. V. S., 196 Fed., 882. 
 Circuit Court of Appeals, 9th Circuit, May 6, 1912. 
 
 We think, in view of the language of the Act and its purpose, 
 it was intended to include within the term ^ 'freight cars " all cars 
 used in the movement of freight, whether freight was actually 
 stored in them or they were used for the purpose of rnoving the 
 train, and that there is included therein the locomotive at the 
 head of the train and the caboose at the other end. The evils to 
 be remedied and the dangers to be averted were just as great 
 and demanded legislation as much in the case of a locomotive as 
 in the case of any car in the train. But all doubt is removed by 
 Act March 2, 1903, which amended the prior Act, and enacted 
 that its provisions and requirements relating to automatic 
 couplers and heights of drawbars, etc., "shall be held to applv to 
 all trains, locomotives, tenders, cars, and similar vehicles used on 
 
SCOPE. 47 
 
 any railroad engaged in interstate commerce.'' — Gilbert, C. J., 
 pjx 883-884. [Affii-ming the judgment of the District Court for 
 the District of Montana, and cited with apparent approval by the 
 Supreme Court in Souihern Ry. Co. v. Oroclcett, 234 U. S., 725.] 
 
 -(b). Locomotive Tenders: 
 
 U. S. V. Southern Ry. Co., 170 Fed., 1014; V. S. v. Baltimore cfc 
 0. R. Co., 184 Fed., 94; WinUer v. Philadelphia & R. Ry, Co.\ 
 53 Atl., 90; Philadelphia <& R. Ry. Co. v. Winller, 56 Atl., 112; 
 U. S. V. Baltimore <& 0. R. Co., D. C, N. D. West Virginia, 
 Jan. 18, 1909, Dayton, D. J. [unreported]. 
 
 -Per Contra: 
 
 Larahee v. New York, N. H. & H. R. Co., 66 N. E., 1032. 
 
 -(c). Shovel Cars: 
 
 ScJilemmer v. Buffalo, R. c& P. Ry. Co., 205 U. S., 1; U. S. v. 
 Chicago cfc N. W. Ry. Co., 157 Fed., 616; Chicago. M. & St. P. 
 Ry. Co. V. U. S., 165 Fed., 423. But see Lalce Shore <& M. S, 
 Ry. Co. V. Benson, 97 N. E., 417, Avith respect to the non-applica- 
 tion of the Acts to a locomotive crane. 
 
 -(d). Caboose Cars: 
 
 Suttle V. Choctaw, 0. <h G. R. Co., 144 Fed., 668; Chicago, M. db 
 
 P. S. Ry. Co. V. U. S., 196 Fed., 882; MoUle, J. c& K. C. R. 
 
 Co. V. Bromberg, 37 So., 395; TJ. S. v. Toledo Terminal R.'Co., 
 
 D. C, N. D. Ohio, June 15, 1909, Cochran, D. J. [unreported]; 
 
 U. S. V. Southern Pacific Co., D. C., D. Nevada, Nov. 24, 1909, 
 
 Farrmgton, D. J. [unreported]. 
 
 -(e). Passenger Cars: 
 NorfolJc S W. Ry. Co. v. V. S., 177 Fed., 623. 
 
 Circuit Court of Appeals, 4th Circuit, March 4, 1910. 
 
 The Supreme ( ourt, in Johnson v. Southern Pacific (7o., 
 196 U. S., 1, held the word '^car" used in sections 2, 6, and 8 
 of the original Act to have been used in its generic sense intended 
 to include ''all kinds of cars running on the rails," and that it 
 did include a locomotive which could not couple automatically 
 with a dming car. Section 6, so construed, expressly pre- 
 scribed a penalty for the use of ''any car in violation of any of 
 the pro visions " of the Act, of course including section 4 — the* 
 grab-iron section — which by the amended and declaratory Act 
 of March, 1903, was to apply to "all cars and similar vehicles 
 used on any railroad engaged in interstate commerce." The 
 Johnson Case has been cited and approved since in Schlemmer v. 
 Buffalo, R. c& P. Ry. Co., 205 U. S., 1. The contention that 
 these cases, not having under specific consideration this particu- 
 lar section 4, do not apply here, and leaves the question of its 
 application to passenger cars, we think untenable. — Daytonj 
 D. J., p. 628. 
 V. S. V. Norfolk & W. Ry. Co., 184 Fed., 99. 
 
 District Court, Western District of Virginia, November 28, 1910. 
 
 The contention that section 4 of the Safety Appliance 
 
 Act was never intended to apply to passenger cars deserves 
 
 some consideration. The original Act of 1893 in terms applied 
 
48 SAFETY APPLIANCE ACTS. 
 
 to ''any car.'' In passing the amendment of 1896, Congress 
 did not see fit to make any exception as to passenger cars, and 
 the amendment of 1903 not only does not in the slightest indi- 
 cate any intention to except passenger cars from the operation of 
 section 4, but it emphasizes the point that the requirements as 
 to couplers^ grab irons, etc., appiy to ''all cars" used in inter- 
 state commerce. * * * And whether the witness above 
 quoted is indisputably right or not (and I think he is) in stating 
 tnat handholds in the ends of passenger coaches would at least 
 at one stage of the proceedings be of assistance, the possibility 
 that he may be right seems to be a sufficient reason for refusing 
 to construe such language as "any car" and "all cars" as not 
 embracing passenger cars. — McDowell, D. J., pp. 101, 102. 
 See also: 
 
 Handholds. — The law makes no distinction be- 
 tween passenger and freight cars, and handholds must, 
 therefore, be placed on the ends of passenger cars and 
 cabooses. — Aam. Ruling No. 67. 
 
 — (f). Dining Cars. 
 
 Johnson v. Southern Pacific Co., 196 U. S., 1; U. S. v. Great 
 Northern By. Co., 145 Fed.. 438; Snead v. Central of Georgia Ry. 
 Co., 151 Fed., 608; Chicago, M. & St. P. Ry. Co. v. U. S., 165, 
 Ted., 423; U. S. y. Southern Pacific Co., D. C, D. Nevada. 
 Nov. 24, 1909, Farrington, D. J. [unreported]. But see Johnson 
 V. Southern Pacific Co., 117 Fed., 462. 
 
 16, Cars to whicli the Acts apply are subject to their terms, even while 
 such vehicles are being moved within the boundaries of a single 
 State. 
 U. S. V. International ch Great NoHhem R. Co., 174 Fed., 638. 
 Circuit Court of Appeals, 5th Circuit, December 21, 1909. 
 The Act, as amended, appfies to all cars and trains operated 
 by a railroad carrier of interstate commerce over an interstate 
 railway, irrespective of whether the defective car is bein^ hauled 
 from one point to another in the same State or not, it being part 
 of a train engaged in interstate traffic. — Shelby, C. J., p. 640. 
 Belt Ry. Co. of Chicago v. U. S., 168 Fed., 542. 
 
 Grcuit Court of Appeals, 7th Circuit, February 3, 1909. 
 
 " If between the point of origin of this commodity and the 
 point of destination of this commodity, the car in which it is being 
 vehicled from origin to destination passes over a line of track 
 wholly mthin a city, within a county, or within a State, the rail- 
 way company operating that line of track while moving this com- 
 modity, so originating and destined from one point to another 
 point, intrastate, is engaged in interstate commerce." [Charge 
 of lower court sustained.] — Baker, C. J., p. 543. 
 U. S. V. Chicago Great Western Ry. Co., 162 Fed., 775. 
 
 District Court, Northern District of Iowa, May 6, 1908. 
 
 The fact that that car was hauled wholly within the State of 
 Iowa is not material if in the same train that it was hauled there 
 were other cars loaded with traffic from a point without the State, 
 
SCOPE. 49 
 
 or from a point within the State consigned to a point without the 
 Stsite.— Reed, D. J., p. 782. 
 U. S. V. Southern By. Co., 164 Fed., 347. 
 
 District Court, Northern District of Alabama, Sept. 25, 1908. 
 Whether this interstate highway is used in the hauling of 
 vehicles in the condition alleged in the petition, from a point in 
 one State to a point in another State or between points entirely 
 within the same State is immaterial in the application of the 
 Safety Appliance Statutes. — Hundley, D. J., p. 358. 
 Pacific Coast Ry. Co. v. U.S., 173Fed.,448; U.S.v.Westernd) A.R. 
 Co., 184 Fed., 336; Southern Ry. Co. v. Snyder, 187 Fed., 492; 
 Devine v. Chicago & C. R. R. Co., 102 N. E., 803; U. S. v. Belt 
 Ry. Co. of Chicaao, D. C, X. D. IlHnois, Jan. 23, 1908, Landis, 
 D. J. [unreported]. 
 
 Per Contra: 
 
 International & Great Northern Ry. Co.. v. Elder, 99 S. W., 856. See also Rio Grande 
 Southern R. Co. v. Cam^pbell, 96 Pac. 986; Luken v. Lake Shore d: M. S. Ry. 
 Co., 94 N. E., 175. 
 
 17. The Acts apply no less to inter-yard or switching movements 
 than to main-line operations. 
 
 Johnson V. Southern Pacific Co., 196 U. S., 1. 
 Supreme Court, December 19, 1904. 
 
 Confessedly this dining car was under the control of Congress 
 while in the act of making its interstate journey, and in our judg- 
 ment it was equally so when waiting for the train to be made up 
 for the next trip. It was being regularly used in the movement 
 of interstate traffic and so mthin the law. — Fuller, Chief Jus- 
 tice, p. 22. 
 U. S. v. Chesapeale d) 0. Ry. Co., 213 Fed., 748. 
 
 Circuit Court of Appeals, 4th Circuit, February 27, 1914. 
 
 To hold that this proviso applies only to trauus operated 
 on lines between stations would m a large measure deny pro- 
 tection to those for whose benefit the law was passed and give 
 a narrow and artificial construction to the statute. 
 
 We do not deem it necessary to review the many authorities 
 cited by counsel for the Government, as well as those cited by 
 defendant, further than to say that we have carefully considered 
 the case of Erie R. Co. v. Z7. S. [197 Fed., 287], decided 
 by the Circuit Court of Appeals for the Third Circuit. That 
 case supports the defendant s contention, notwithstanding the 
 facts upon which it is based differ somewhat from the case at 
 bar. While we have the greatest respect for that court in its 
 decision, yet a careful consideration of the statute impels us to 
 dissent from the views therein expressed. 
 
 To hold that the words "while such car was being used by 
 such carrier upon its line of railroad" are intended to limit the 
 statute in its application to the main line, would in a large degree 
 nullify the Act. When we consider the statute in regard to 
 safety appliances, we are forced to the conclusion that it must 
 have been the intention of Congress that the same should apply 
 to sidetracks and yard tracks as well as the main lines. — Pritch- 
 ard, C. J., pp. 751-752. 
 50611—15 4 
 
50 SAFETY APPLIANCE ACTS. 
 
 WahasJi R. Co. v. V. S.; Elgin, J. d; E. By. Co. v. U. S., 168 Fed., 1. 
 Circuit Court of Appeals, 7th Circuit, February 3, 1909. 
 
 The risks incurred in coupling and uncoupling are more 
 imminent on switching tracks where trains are made up and dis- 
 tributed, and where empty cars are set out at freight houses or 
 factory platforms to be loaded, than on the main lines. It is not 
 reasonable to suppose that Congress intended to cover only the 
 smaller part of the dangers; and since the language employed is 
 entirely consistent with the larger meaning, section 2 of the Act 
 of 1893 should be held to forbid an interstate carrier from hauling 
 or using on its line any car that is customarily or generally em- 
 ployed in moving interstate traffic, and that is not e(][uipped 
 with automatic couplers, even though at the particular time the 
 car be empty or be moving intrastate traffic. — Baker, C. J., p. 3. 
 Chicago, M. <& St. P. Ry. Co. v. U. S., 165 Fed., 423. 
 
 Circuit Court of Appeals, 8th Circuit, November 27, 1908. 
 
 There had been no delivery of the car in question at its ulti- 
 mate destination, and the switching of it from the time it was 
 taken by defendant's employees on the exchange track to the 
 time of the discovery of the defect was in the course of such 
 delivery and constituted a use in interstate commerce. — Hoolc, 
 G. J., p. 426. 
 Union Stock Yards Co. of OmaM y.U. S., 169 Fed., 404. 
 Circuit Court of Appeals, 8th Circuit, April 2, 1909. 
 
 The carriage of these shipments from the transfer track to 
 the sheds or pens and vice versa is no less a part of their transit 
 between their points of origin and destination than is their car- 
 riage over any other portion of the route. — Van Devanter, G. J.y 
 p. 406. 
 CUcago, B. cfc Q. Ry. Co. v. V. S., 211 Fed., 12. 
 
 Circuit Court of Appeals, 8th Circuit, November 28, 1913. 
 
 It is first urged by the company that this movement was a 
 switching operation and not ''on the line" of the company 
 within the meaning of the statute; in other words, that section 
 2 of the Act does not relate to the movement of cars in switching. 
 The coupling and uncoupling of care, however, is confined 
 almost wholly to such operations, and to hold that it is not a 
 violation of the law to have the coupling and uncoupling appa- 
 ratus in a defective condition at such times, would be a clear 
 nullification not only of the language of the statute but of its 
 manifest purpose. This assignment of error is, therefore, wholly 
 devoid of merit. — Amidon, D. J., p. 14. 
 U. S. V. Atlantic Coast Line R. Co., 214 Fed., 498. 
 
 District Court, Southern District of Florida, May 28, 1913. 
 
 The Supreme Court, in Southern Ry. Co. v. Z7. S. [222 U. S. 
 20], on page 26, have this to say: ''For these reasons it must be 
 held that the original Act as enlarged by the amendatory one is 
 intended to embrace all locomotives, cars, and similar vehicles 
 used on any railroad which is a highway of interstate commerce," 
 and then holds said Act so constructed within the powers of Con- 
 gress. The decision in the case of Erie R. Co. v. TJ. S. [197 Fed., 
 
SCOPE. 51 
 
 287], and line of reasoning can have no bearing on the decision 
 of this question. The charge in the second count is for a failure 
 to have the car properly equipped with a coupling as required by 
 the Act. It is no defense to this charge to say, ''It is true the car 
 was not properly equipped, but we are switching it and other 
 cars on our line or m our yards." There is no denial that the 
 defendant was a railroad engaged in interstate commerce and the 
 cars mentioned engaged in interstate commerce, except it be by 
 reason of the switching operations, and the Supreme Court in the 
 case above referred to has construed the requirements of these 
 Acts in no uncertain terms. — Call, D. J., p. 500. 
 U. S. V. Pere Marquette R. Co., 211 Fed., 220. 
 
 District Court, WesternDistiict of Alichigan, September 5, 1913. 
 
 Wyoming Yard and Freight House Yard are both within the 
 general yard limits of the city of Grand Rapids, but they are about 
 2 miles apart and each has its own system of switching tracks. 
 Trains passing from one yard to the other must run for the entire 
 distance upon defendant's main line over which its regular pas- 
 senger and freight trains as well as switching and transfer trains 
 are operated. This part of the main line has some minor grades 
 and curves and crosses at grade five city streets and a street car 
 line. * * * 
 
 On March 5, 1912, 16 or 17 cars which had been brought into 
 the Wyoming Yard in other trains were switched and formed into 
 a train and then pushed by a switch engine from that yard over 
 the main line of tracks to Freight House Yard to be unloaded or 
 to have their cargoes rearranged. At least one of the cars con- 
 tained an interstate shipment. * * * 
 
 The sole question to be determined is whether or not the 
 provisions of the Safety Appliance Acts apply to car and train 
 movements like the one above described. It must be conceded 
 that 16 cars and a locomotive coupled and moved together for 2 
 miles upon the main tracks of a railroad line through a large city 
 and across several streets constitute a train within the purview of 
 the statute. Plaintiff's witnesses have called the movement of 
 this train a ''transfer" movement, while defendant's witnesses 
 insist that it was purely a "switching" movement. The name 
 given to the movement is of no importance and its character 
 may not be controlling. That the use of a car whose coupling 
 apparatus is inoperative upon the tracks of a railroad company 
 engaged in interstate commerce and in connection with such 
 commerce, either in a switch yard or in actual road service upon 
 the main Une, is a violation of the Safety Appliance Acts is no 
 longer an open question [Delk v. St. Louis c& S. F. R. Co., 220 U. 
 S., bm.]— Sessions, D. J., pp. 221-222. 
 Crawford v. New YorTc Central & H. R. R. Co., 10 Am. Neg., 166. 
 Supreme Court of Westchester Co., N. Y., April Term, 1901. 
 
 The other claim of the defense is that as to these particular 
 cars they were not in use for interstate commerce, because they 
 were not on the road in matter of tra nsit at the time, but were in 
 
 ^:.:j 
 
52 SAFETY APPLIANCE ACTS. 
 
 the yard itself. As to that, I charge you if the cars were cars 
 engaged and being used in interstate commerce, it matters not 
 whether they were being made up in the yard or were moving at 
 the time out on the road, because the statute is intended to pro- 
 tect brakemen against the danger of such work, so far as it can 
 protect them against such dangers, and it matters not whether 
 mtei-state-commerce cars were being niade up to start out on the 
 road or whether they were actually moving along between the 
 States at the time, so far as the purpose and intent of the statute 
 is concerned. In fact, in the making up there is more necessity 
 for the brakemen to be at their work, coupling the cars, bringing 
 them together, than in the operation of the cars after they once 
 start out from New York for Boston, New Haven, Chicago, or 
 elsewhere. — Dickey, J., p. 169. 
 
 MoUle, J. & K. C. R. Co. v. Bromherg, 37 So., 395. 
 Supreme Court of Alabama, May 17, 1904. 
 
 It would be a narrow and limited construction of this statute 
 to say that it was only applicable in cases where the cars at the 
 very moment of the injury are bemg actually used in moving 
 interstate traflB.c, and not to cars where the injury occui-s in the 
 making up of a train of cars for the purpose of moving interstate 
 traffic. The language employed in the statute, as well as the 
 beneficent purpose for which it was enacted — the preservation 
 of human life — forbids an interpretation so narrow. — Dowdell, 
 J., p. 398. 
 
 U, S. V. Southern Pacific Co., [unreported]. 
 
 District Court, District of Nevada, November 24, 1909. 
 
 The Safety Appliance Act prohibits the use of any car 
 defective as to safety appfiances either upon the main line of 
 the railroad or merely in switching movements within the yards 
 of the company. — Farrington, D. J. 
 
 U. S. V. Pittshurgh, C. C. & St. L. By. Co., 143 Fed.. 360; Johnson v- 
 Great Northern Ry. Co., 178 Fed., 643; Erie R. Go. v. Russelh 
 183 Fed., 722; U. S. v. Western & A. R. Co., 184 Fed., 336; 
 Southern Ry. Go. v. Snyder, 187 Fed., 492; Gray v. Louisville 
 & N. R. Co., 197 Fed., 874; Southern Ry. Co. v. Snyder, 205 
 Fed., 868; Wheeling Terminal Ry. Go. v. Russell, 209 Fed., 795; 
 Devine v. Chicago cfc G. R. R. Co., 102 N. E., m^^Poyylar v. 
 Minneapolis, St. P. dc S. S. M. Ry. Co., 141 N. W., 798; St. 
 Louis cfc S. F. R. Go. v. Gonarty, 155 S. W., 93. See also Grand 
 Trunk Western Ry. Co. v. Lindsay, 233 U. S., 42: NashviUe, 
 G. & St. L. Ry. Go. v. Henry, 164 S. W., 310. But see Rosney 
 V. Erie R. Co., 135 Fed., 311; Siegel v. New York Central & 
 H. R. R. Co., 178 Fed., 873. 
 
 [It is to be noted that in the foregoing decisions 
 the appfication of the Acts to switching operations has 
 been essentially restricted hy the facts in issue to the 
 movement of defective cars, the requir. ments with re- 
 spect to air-brake equipment being not directly involved. 
 In the following cases, however, the air-hrake provisions 
 of the statute are affirmatively construed as extending to 
 the operation of trains in inter-yard or switching move- 
 ments.] 
 
SCOPE. 53 
 
 Belt By. Co. of Chicago v. U. S., 168 Fed., 542. 
 
 Circilit Court of Appeals, 7th Circuit, February 3, 3 909. 
 
 The Belt Line physically connected its track with those of 
 the Eastern Illinois and of the Northwestern, so that a continuous 
 highway across State lines was formed, on which interstate traffic, 
 loaded on interstate cars, was moved from origin to destination 
 without change of cars. * * * The Belt Line, issuing no bills 
 of lading because of having no dealings with the shipper or with 
 anyone on his behalf, performing its gateway service on account of 
 and as agent of the trunk lines, made its track the track of its prin- 
 cipals. Consequently the character of the transportation should 
 be determined by considering the transporation as the act of such 
 principals. Trunk-line yards are in some instances so related to 
 each other that through cars can be transferred without the inter- 
 vention of a go-between. We are of opinion that the transporta- 
 tion in question was the same in legal effect as if the Eastern 
 Illinois by means of its own locomotWe and track had put the 
 through car on the Northwestem's track. In this view there 
 was evidence from which the inference of fact might warrantably 
 be drawn by the jury that there was a common arrangement for a 
 continuous carriage over the Eastern Illinois and the North- 
 western; and so, with respect to the movement in question, plain- 
 tiff in error was engagea in interstate transportation. — BaJcer, 
 C. J., p. 545. 
 
 Atchison, T. d; S. F, By. Co. v. Z7. S., 198 Fed., 637. 
 
 Circuit Court of Appeals, 7th Circuit, April 23, 1912. 
 
 Less than the required number of cars in the train had air 
 brakes under the control of the engineer. Corwith is an outer 
 Chicago yard, where incoming trains used in interstate traffic 
 are stopped and the cars are distributed upon various tracks. 
 Cars that are destined to plaintiff in error's inner yard at 
 Eighteenth Street are assembled at Corwith mto a train and 
 moved about 8 miles to Eighteenth Street over switch tracks, 
 leads, and main tracks of plaintiff in error, across a drawbridge 
 and three railroads, at the rate of 6 to 8 miles per hour. Beyond 
 Corwith the trains are under the jurisdiction of the train dis- 
 patcher; between Corwith and the Eighteenth Street yard, of the 
 yardmaster. At Corwith the regular ''road" crews give up the 
 trains, and from there to Eighteenth Street trains are handled by 
 ''switching" crews. From Corwith to Eighteenth Street the 
 railroad is w^holly within Cook County, 111. * * * 
 
 From the use of the words "run," "speed," and "brake- 
 men" in the original Act plaintiff in error argues that this pro- 
 vision for the engineer's control of the train by means oi air 
 brakes applies only to "road" trains. But, in our opinion. Con- 
 gress, in requiring a train to be ' 'so equipped with power or train 
 brakes that the engineer on the locomotive drawmg such train 
 can control its speed without requiring brakemen to use the com- 
 mon hand brake for that purpose," employed the word "brake- 
 men " generically as including any and all men, whether speci- 
 fically known as "conductors" or "brakemen" or "yard fore- 
 man" or "switchmen," whose duties in connection with the 
 train would oblige them to use the common hand brakes in the 
 
54 SAFETY APPLIANCE ACTS. 
 
 absence of air brakes, and intended that the engineer should be 
 able to "control the speed'' and bring quickly to a standstill a 
 train moving slowly through a congested region of drawbridges 
 and railroad crossings, as well as a train moving rapidly on a single 
 clear track in the country. Interstate cars destined to Eight- 
 eenth Street did not complete their interstate journey until 
 they reached that point; and the dangers to the men engaged in 
 moving those cars and to the interstate traffic itself were at least 
 as imminent as the dangers on the "road." — Baker, G. /., pp. 
 638-639. 
 V. S. V. Grand TrunTc By. Co. of Canada, 203 Fed., 775. 
 
 District Court, Western District of New York, March 8, 1913. 
 
 The undisputed facts show that the cars constituting the 
 train were hauled from Black Rock in Buffalo to Bridgeburg 
 in Canada, a distance of approximately 2 miles, over a draw- 
 bridge crossing the barge canal and over the International 
 Bridge across Niagara River. The cai*s were not engaged in the 
 performance of a switching operation, nor were they moving in 
 the yard of the defendant company, but the evidence as to one 
 cause of action set forth in the complaint shows that 9 cars were 
 coupled and loaded and hauled by a locomotive; and as to the 
 other cause of action, that there were 25 coupled loaded cars 
 similarly hauled on the main track to Bridgeburg, from whence 
 they were destined to other points. I think the journey was fairly 
 initiated at Buffalo, and that the cars coupled to the locomotive 
 constituted a train, and that the operators of the train consti- 
 tuted a train crew, even though orders from the train dispatcher 
 of the defendant were not ^iven to them at Buffalo, but were 
 given to another crew relieving them at Bridgeburg. * * * 
 
 Upon the question of whether those in charge of the train 
 between Buffalo and Bridgeburg constituted a regular train 
 crew, the decision of the Circuit Court of Appeals for the Sev- 
 enth Circuit in Atchison, T. cfc S. F. By. Co. v. Z7. S. 198 Fed., 
 637, may profitably be considered. There the train, carrying 
 cars, caboose, and markers, was coupled together by switching 
 crews from localities on the outskirts of Chicago, and hauled 
 from different sidetracks onto the main tracks across a draw- 
 bridge at a rate of from 6 to 8 miles an hour and proceeded a dis- 
 tance of 6 miles, the crews at the time being under the super- 
 vision of the yardmaster and not of the train dispatcher. The 
 only material difference between that case and the one at bar is 
 as to the distances covered by the trains. While it is true that 
 the trains in the latter case traveled a distance of only about 2 
 miles over the land and water, there seems to be no ^ood reason 
 why the air hose should not have been coupled up directly after 
 the switching operation was completed and the cars coupled and 
 moved. 
 
 There is no appreciable hardship to the defendant in requir- 
 ing compliance with the provisions of the Act, which obviously 
 was passed to minimize dangers and risks to w^hich brakemen 
 and switchmen are subjected. It would probably be more con- 
 
SCOPE. 55 
 
 venient for the defendant to couple and uncouple the air hose at 
 Bridgeburg, across the river, where its train dispatcher is located 
 and where another crew assume control of the train, but the 
 train crew — for such I think they were — accompanying the train 
 to Bridgeburg were entitled to the protection which the statute 
 obviously designed they should receive as soon as the locomotive 
 and cars, engaged in interstate commerce, were coupled together 
 and started on the main track toward their destination. — 
 Hazel, D. J., pp. 776-777. 
 U. S. V. Atlantic Coast Line R. Co., 214 Fed., 498. 
 
 District Court, Southern District of Florida, May 28, 1913. 
 
 Under these Acts it is unlawful ''to use any train in such 
 traffic" without the safety appliances named therein. Do these 
 words or the context mean only while the train is moving from 
 point to point in the journey, or do they mean any running of 
 a train of cars so engaged ? 
 
 It would seem that the movement of such a train for the 
 purpose of placing cars in position for delivery or for the pur- 
 pose of making up a train would still be a violation of the Act 
 unless the provisions were complied with. The absence of 
 power brakes from a sufficient number of cars to handle the 
 train from the engine would endanger the lives of the brakemen 
 on such a train as much as would their absence in the train after 
 it had been made up. And we must not lose sight of the fact 
 that Congress intended to protect this very class in providing 
 for the use of power brakes instead of the hand brake in aU 
 interstate traffic. I am constrained to think that a train of 
 cars used in interstate traffic falls within the meaning of the Act 
 as amended, whether used in regular transit or switching opera- 
 tions, and that therefore the demurrer to the second plea to the 
 third count is well taken. — Call, D. J., pp. 499-500. 
 U. S, V. Pere Marquette R. Co., 211 Fed., 220. 
 
 District Court, Western District of Mchigan, September 5, 1913. 
 
 Should the statutory requirement concerning the use, con- 
 nection, and operation of train brakes be given a different con- 
 struction or interpretation from that which has been applied 
 by the courts to the provisions relating to car-coupUng appara- 
 tus ? Clearly not. The two sections of the statute are identical 
 in the form of language employed, in legislative intent, in reme- 
 dial purpose, and in the mandatory obedience thereto which 
 is required, the only difference being that in the one the unit is 
 a train or combination of cars and in the other a single car. If 
 section 1 of the original Safety AppHance Act stood alone, there 
 would be at least room for argument that its provisions were 
 intended by Congress to apply solely to trains made up for road 
 service. But this section does not stand alone. It must be 
 construed in connection with the other sections of the same 
 statute, and particularly in connection with and with reference 
 to the modifying and explanatory Act of March 2, 1903. In 
 and by the latter Act Congress has removed whatever doubt, 
 uncertainty, or ambiguity existed in the former one and has 
 
56 SAFETY APPLIAITCE ACTS. 
 
 said plainly and unequivocally that the provisions and require- 
 ments of the earlier Act ''shall be held to apply to all trains, 
 locomotives, tenders, cars, and similar vehicles used on any 
 railroad engaged in interstate commerce." The legislative 
 intent so plainly expressed must be respected. The beneficial 
 and remedial purposes of these statutes must not be defeated 
 by strained construction and must not be made subordinate to 
 either convenience or economy of railroad operation. On March 
 5, 1912, the Pere Marquette Railroad was engaged in interstate 
 commerce, the 17 cars and switch engine here in controversy 
 constituted a train, at least 1 car of that train contained an in- 
 terstate shipment, the train was run and operated upon defend- 
 ant's main line of tracks, the coupHng apparatus upon each of 
 2 cars was so out of repair as to be moperative, and the air brakes 
 were not coupled up and connected so that they could be oper- 
 ated by the engineer from the locomotive. There is, therefore, 
 no escape from the conclusion that the law was violated in the 
 manner set forth in each of the counts of plaintiff's declaration. 
 
 Counsel for defendant rely upon the case of Erie R. Co. v. 
 27. S., 197 Fed., 287, decided by the Circuit Court of Appeals 
 of the Third Circuit. That case differs from the present 
 one in some material respects, but in the main it supports de- 
 fendant's contention. I nave the profoundest respect for that 
 court and its decisions, and it is with much diffidence and hesi- 
 tation that I feel compelled to reach a different conclusion. In 
 the Erie Case, however, the court seems to have entirely over- 
 looked, ignored, and disregarded the controlling effect of the 
 modifying and explanatory Act of 1903. After careful and 
 patient study I am also convinced that the decision in the Erie 
 Case is in conflict with both the spirit and the letter of the utter- 
 ances of the Supreme Court. — Sessions, D. J., p. 223. 
 La Mere v. Ry. Trans. Co. of Minneapolis, 145 N. W., 1068. 
 Supreme Court of Minnesota, March 13, 1914. 
 
 The defendant is a transfer company. It is conceded that 
 the operation in which it and the plaintiff were engaged at the 
 time of his injury was an interstate operation. It was taking 
 some 15 cars, all or all except one loaded, sometimes called a 
 ^'drag," from its yards to the Chicago, Milwaukee & St. Paul 
 yards, referred to sometimes as the Milwaukee Transfer. An 
 miportant question is whether these cars with the locomotive 
 hauling them constituted a train within the meaning of the 
 Safety Appliance Act. The cars had been loaded at the mills 
 and switched onto track numbered 7, which was set apart for 
 the use of the Milwaukee road. They were equipped with air 
 brakes, and the air hose connections were coupled while they 
 stood on track 7. There was no air in the air line; that is, 
 there was no connection with the engine. The cars were in use 
 in interstate commerce. They were about to start on an inter- 
 state journey and their fii'st movement was to the Milwaukee 
 yards. In making this movement the train went on an upgrade 
 onto the northbound main line of the Minneapolis & St. Louis 
 
SCOPE. 57 
 
 Railroad Company, passed by a cross-over to the southbound 
 main line, followed it a short distance, crossed in its course a 
 number of switches, and passed onto the Milwaukee Transfer. 
 The main lines of the Minneapolis & St. Louis were traversed for 
 something like four blocks. The length of this particular move- 
 ment was some six or seven blocks, something like a half mile. 
 The danger wa^ less than if the haul had been longer, just as the 
 danger of one haul wa^ les^ than of several. There was more 
 danger because of traversing and crossing the two main lines of 
 the Minneapolis & St. Louis. There was less danger than if 
 there had been a number of main lines to cross and less danger 
 than if a main line had been traversed a greater distance. The 
 defendant hauled the transfers for four roads. It connected the 
 air on all trains except those of the Milwaukee. The Milwaukee 
 was the shorter haul. The danger from not using air in the 
 Milwaukee haul may have been different in degree from the 
 danger in other hauls, and sometimes it may have been different 
 in kmd, and it may have differed at times in degree and in kind 
 from a main line haul, at times being greater and at times less. 
 In general the dangers were similar. They came from the fact 
 that the engineer, without the air connected, was not in control 
 of his train, and what the particular result might be on a long 
 haul or a short haul, or on a main track line, or on a haul through 
 the transfer yards, either to the trainmen or to the public, no 
 one could foretell. 
 
 We are of the opinion that it should be held that the so- 
 called "drag'' was a train within the meaning of the Safety 
 Appliance Act. The switching had been finished when the cars 
 were on track 7 and coupled. They were then starting on their 
 way. It was not in a proper sense a switching operation at all. 
 It is not important that no caboose was attached. It is not 
 important that when the train got to the Milwaukee yards the 
 cars might be rearranged and go to different destinations as 
 parts of different trains. It is not important that the engine 
 w^as in a backward instead of a forward movement. The cars 
 were on an interstate journey when they left track 7 and they 
 made up a train. The trainmen were subject to the dangers 
 against which the Safety Appliance Act sought to guard them 
 by requiring the au* to be connected. The cars and engine 
 come within the ordinarv^ definition of a train. [Dacey v. Old 
 Colony R. Co., 153 Mass. ,"^112, 26 N. E., 4S7.]—DiheTl, Comm'r., 
 p. 1070. 
 Steams v. Chicago, R. 1. cfc P. Ry. Co., 148 N. W., 128. 
 Supreme Court of Iowa, June 29, 1914. 
 
 Plaintiff was employed by the Milwaukee Company as a 
 switchman in its yards at Cedar Rapids, and on the day of the 
 accident, which was on June 17, 1910, he was in control and 
 charge of a crew consisting of himself, an engineer, fireman, 
 and two other helpers, engaged in switching a refrigerator car 
 to the freight house of his company, which was located some 
 distance west of the Rock Island crossing. * * * Going 
 
58 SAFETY APPLIANCE ACTS. 
 
 back now to the statutes of the State, we may remark that our 
 own statute as to the couplmg of the air hnes upon all or any 
 given percentage of cars m a train is not required. And in 
 construing this section we have held [Carter v. Sioux City Co., 
 141 N. W., 26] that it is not necessary, as a matter of law, to 
 have any of the cars connected up, especially where the engine 
 is spotting cars. So that it can not be said that plaintiff, as a 
 matter of law, violated our statute in not having the air con- 
 nected up on the car. The federal statute and the order of the 
 Interstate Commerce Commission do make an absolute rule 
 upon this subject and require a certain percentage of the cars 
 to be coupled. Each of these trains was upon a main line, 
 and not upon side or passing tracks, and the Rock Island Com- 
 pany was engaged in switching within its own yards. The 
 Milwaukee was not in its own freight vards, which were some 
 distance westward of the point of collision, and the car was 
 being taken to these yards from what are known as its '^east 
 yards,'' nearly a mile away. 
 
 That the federal statute was and is appMcable to the case, 
 although there is no showing that at the particular time any 
 object was being moved in interstate commerce, is held in the 
 recent case of Southern Ry. Co. v. U. S., 222 U. S., 20. 
 
 No matter what our views upon this question, that deci- 
 sion is final and controlling. But appellee's counsel say that 
 it was the custom of the Milwaukee Companv not to observe 
 this requirement, and they made some proof in this respect, 
 while other testimony to the same effect was rejected. This 
 testimony, they think, was inadmissible, as tending to reheve 
 * plaintiff of his nonobservance of the law, even though he had 
 knowledge of the custom. The provisions of this law were 
 made for his own as well as for the safety of others, and he 
 could not, as we think, neglect the observance of this law, 
 although it was customary for others in the employ of the Mil- 
 waukee Company, as well as himself, to disobey. A statute of 
 this kind can not be avoided by proof of custom. Surely it 
 would be no defense to criminal habiUty, and, as a rule, one 
 who violates a criminal law made for his own safety is himself 
 guilty of neghgence. 
 
 The only other point made is that there is no requirement 
 of law that trains and engines engaged in switching should be 
 so equipped and coupled. In other words, it is insisted that 
 the courts should ingraft an exception on the law to this extent 
 at least. We are not disposed at this time to do more than say 
 that we shall not, in any event, acknowledge any exception, 
 unless it be to trains and engines actually engaged in switching 
 or spotting cars within their own yards, and not to trains on 
 main lines entering yards, which are being used to take cars 
 from some other places outside the yards to be left there, no 
 matter for what purpose. 
 
 A railway crossing is always an exceedingly dangerous 
 point, and there is no place where there is more necessity for a 
 full equipment of brakes, under the interstate commerce rule, 
 
SCOPE. 59 
 
 than at such crossings. Under the testimony the car was being 
 taken from the Milwaukee ''east yard" to the freight house, 
 they being approximately a mile apart, and the train was 
 required to cross a number of railway and street crossings, in 
 addition to the one in question. We are constrained to hold that 
 plaintiff, having charge of the make-up of this particular train, 
 violated the statute, and that this, with other facts which we 
 shall presently relate, was one of the causes which contributed 
 to his injury. — Deemer, J., pp. 129, 131-132. 
 U. S. V. Belt Ry. Co. of Chicago [unreported]. 
 
 District Court, Northern District of Illinois, January 23, 1908. 
 
 It appears in evidence that the defendant's train was made up 
 of 43 freight cars, including C, R. I. & P. car 85176 and an engine 
 and caboose, and that the car mentioned contained lumber under 
 shipment from a point in Illinois to a point in Wisconsin; it also 
 appears that power or train brakes were used on but 15 cars com- 
 posing this train, and that on the remainder of the cars, being the 
 difference between 15 and 43, the power or train brake was not 
 used. 
 
 The question, therefore, presented is whether the Belt Rail- 
 way Company, at the time of the movement of the train, was 
 engaged in interstate commerce; and on this point I charge you 
 that when a commodity originating at a point in one State, des- 
 tined to a point in another State, is put aboard a car, and that car 
 begins to move, interstate commerce has begun, and that inter- 
 state commerce it continues to be until it reaches its destination. 
 If, therefore, between the point of origin of this shipment and the 
 point of destination, the car in which it is beiag vehicled passes 
 over a line of track whoUy within a city, within a county, within 
 a State, the railway company operating that line of track while 
 moving such car is engaged in interstate commerce. 
 
 So, applying this rule of law, if it has been shown to you that 
 on the occasion named the Belt Railway Company was engaged 
 in interstate commerce, and while so engaged moved a train of 
 which less than 75 per cent of the cars were equipped and operated 
 with power or train brakes from the engine, you vnH find m favor 
 of the United States. If, on the contrary, it has not been so 
 shown, your verdict will be for the defendant — Landis, D. J, 
 [Affirmed by the Circuit Court of Appeals for the 7 th Circuit in 
 Belt Ry. Co. of Chicago v. U. S.y 168 Fed., 542, ante.] • 
 
 Per Contra : 
 
 Erie R. Co. V. U. S., 197 Fed., 287 [Ist appeal]. 
 
 Circuit Court of Appeals, 3rd Circuit, June 21, 1912. 
 The blue print in evidence in this case shows that Bergen, Weehawken, and 
 Jersey City are outposts of the triangular terminal system of the Erie Railroad, 
 Jersey City and Weehawken being situate under 4 miles apart on the Hudson 
 River and Bergen about 1^ miles inland from Jersey City and 3^ miles from Wee- 
 hawken. At Weehawken there are about 80 tracks where cars are received by 
 rail and lighter. These tracks are used for the storage and preliminary classifica- 
 tion of cars. After this initial classification the cars are either transferred to other 
 terminals by lighter or hauled in trains to Bergen, where they undergo a further 
 and final classification, and where trains are made up to go out over the road . 
 * * * The question here involved is whether in making such transfers from 
 
60 SAFETY APPLIANCE ACTS. 
 
 the Jersey City and Weehawken yards, respectively, to the Bergen yard, the rail- 
 road must couple up the air brakes on such trains of cars. To us it seems clear 
 that there was evidence tending to show that the whole triangle formed by the 
 Bergen, Jersey City, and Weehawken yards constitutes unitedly a single terminal 
 classification yard. While the distance between two of these points is over 3 
 miles, it is e\^dent from the narrow strip of land that is left along the river front 
 by the Palisades that this wide spread of space is topographically required to 
 permit the complicated car transfer and classification of a gieat railroad's terminal 
 traffic. * * * These tliree yards are all under one yardmaster, are all known 
 as the Jersey City Terminal, and cover about 140 miles of track space, and, as we 
 have seen, topographically a part of this yard has to be located at Bergen and to 
 be reached by tunnel. All the work in the Erie Terminal is done by switching 
 crews and engines, and during every movement of the cars in this terminal yard 
 they are not handled in any way by train crews or train engines, nor is there any 
 movement by schedule. * * * Under these facts we think the court could 
 not say to the jury, as a matter of law, the railroad was guilty of violating the law. 
 To us it is clear that this beneficent law is made to fulfill its purpose when it is 
 applied to trains finally made up for road service. It is to lessen the danger inci- 
 dent to such servdce, to averting collisions, to control train movements on grades, 
 to obA^ate as far as possible the danger to men of working hand brakes on icy foot- 
 ings, and other dangers incident to road conditions, that this statute was meant 
 to cover. The Government, recognizing that the statute could not be applied to 
 switching operations, has not contended it should be applied there. But it is 
 urged that considerable numbers of the cars initially classified at the three respec- 
 tive points are moved on the main freight tracks to and through the tunnel, and 
 that they constitute trains, and such movement therefore falls within the wording 
 of the statute, pf course 35 cars coupled together and drawn by a locomotive 
 make a train, for such connected cars are drawn and follow in the engine's train; 
 but this mere word definition does not settle the question before us. It is not a 
 
 . wrangle over mere names, but rather whether the railroad is here doing a bona 
 Me switching work which the law confessedly was not meant to cover. * * * 
 We are pointed to no conditions incident to this short run which make the use of 
 the air brakes essential to the safety of the shifting crew. The run is a brief one. 
 There are neither grades to encounter, stops to be made, or protracted exposure. 
 Under such circumstances, we think the court was not warranted in taking this 
 case from the jury and itself holding the law had been violated. On the contrary, 
 we think it should have admitted the rejected evidence, which constitutes the 
 first assignment of error, that these were yard movements of cars and should have 
 submitted to the jury the question whether the Bergen, Jersey City, and Wee- 
 hawken yards together were or were not in fact a single shifting yard and that the 
 car movements in and between the same were switching operations. — Buffington, 
 C. J., pp. 289, 290, 291. 
 
 U. S. V. Erie R. Co., 212 Fed., 853 [2nd appeal]. 
 
 Circuit Court of Appeals, 3rd Circuit, April 2, 1914. 
 
 It would seem, therefore, that none of these cases involved the question 
 here involved, namely, the compulsory use of air brake equipment in switching 
 operations. On that question, which is one of statute construction, we hold the 
 Act does not compel the air coupling of cars in switching movements. We so 
 hold, amongst others for these reasons: First, because had Congress meant to 
 compel air coupled switching, it would have said so; second, by providing 
 automatic coupling Congress had already provided as far as it could against the 
 avoidable dangers incident to switching; third, if the law includes switching, 
 it covers all switching without limitation or exception, an impracticable and 
 impossible thing; fourth, if the Act covered switching, and Congress meant to 
 except any switching therefrom, it neither did, nor by language made it possible 
 to now decide what switching was excepted. Indeed, a careful study of this Act 
 shows the use in the statute of terms and words which, in common use, are applied 
 TO road, as contrasted with switching operations. The Act deals first with the 
 locomotive alone as distinguished from the train. It makes it unlawful for the 
 railroad ' 'to use on its line" — and line, main line, is a word which, in the common 
 speech of railroad work, distinguishes the line of the road from switches and 
 terminal yards. But the Act proceeds, ' *to use on its line any locomotive 
 engine in moving interstate traffic." Surely the words "in moving interstate 
 traffic," in connection with the use of a locomotive on its line, is aptly appUed 
 
SCOPE. 61 
 
 to draft of trains in their transit between States. But the Act proceeds, the 
 locomotive * *on its line" which is ' 'moving interstate traffic' ' must be equipped 
 with "appliances for operating the train brake system." Surely these words, 
 "operating the train brake system," mean that' the system, the train brake 
 system, operated by the locomotive "on its line" and in "moving interstate 
 traffic," refers to a running, rather than a switching, movement. And the 
 further words of the statute, which make it unlawful for the road ' 'to run any 
 such train in such traffic * * * that has not a sufficient number of cars in 
 it so equipped with power or train brakes that the engineer on the locomotive 
 drawing such train can control its speed without requiring brakemen to use the 
 common hand brake for that purpose," are words that aptly describe train 
 movement. The operation of ' 'the locomotive drawing such train' ' is in marked 
 contrast with the push and pull of a switching engine, and * 'control its speed' ' 
 refers to a train that is speeding, for the appliances must be such that ' 'the 
 engineer on the locomotive drawing such train can control its speed without 
 requiring brakemen to use the common hand brake for that purpose." All 
 these terms and words of railroad parlance are applicable to line travel and fitly 
 descriptive thereof. In railroading, "line" is contrasted with "switch," 
 * 'yard, " and ' 'terminal"; main line, branch line, with switches. A ' 'locomotive 
 drawing such train' ' is in contrast with the push and pull of a yard switching 
 engine. And not only is this the common and practical meaning of the words, 
 but when the practical operative consequences of giving these words the meaning 
 here contended for are considered, the unwisdom of such construction is 
 apparent. — Buffington, C. J., pp. 860-861. 
 Chicago, B. & Q. Ry. Co. v. U. S., 211 Fed., 12. 
 
 Circuit Court of Appeals, 8th Circuit, November 28, 1913. 
 
 Defendant has two yards at Kansas City, Missouri, one known as the Twelfth 
 Street Yard, south of the Missouri River, and the other the Murray Yard north of 
 that river. These two yards together constitute a terminal yard. Trains coming 
 in from the west are broken up in the Twelfth Street Yard, and such cars as are 
 to go forward to eastern points are distributed upon tracks according to the prac- 
 tice in modem railroading. Strings of these cars are then drawn out at the eastern 
 end of the system of tracks by a switch engine, and transferred to the Murray 
 Yard, where they are again redistributed according to the connecting carriers 
 who are to move them forward to eastern points. The distance between the yards 
 is about two miles. The line on the bridge across the Missouri River is a single 
 line, and is about 3,000 feet long. The tracks between the two yards are inter- 
 sected by the terminal road at Kansas City. The line across the bridge is used not 
 only by defendant, but by the Wabash and Rock Island Railroad Companies for 
 both freight and passenger trains. The movement of trains in this territory is 
 controlled by block signals. Ti-ains such as those here complained of have no 
 schedule and are not under the control of the train dispatcher, but are moved by 
 the yardmaster. * * * 
 
 It is not controverted by the Go-\emment that the provisions of the Safety 
 Appliance Act in regard to air brakes have not heretofore been regarded as appli- 
 cable to switching operations. This has been the interpretation of executive 
 officers charged with the enforcement of the Act, and is justified by the language 
 of the statute. The words "on its line," "in moving interstate traffic," "to run 
 any such train in such traffic," are properly applicable to trains mo\dng from 
 point to point rather than to switching operations. We do not think the Act of 
 1903 was intended to make any change in the original statute in this respect. * * * 
 The word "train " of course covers any string of cars hauled by an engine. But if 
 the statute is to be applied to all trains falling within this definition, then it would 
 cover all movements of cars by means of a locomotive in switching operations, 
 and it would make no difference whether that movement was on a main track or a 
 siding. Such a result reduces the reasoning to an absurdity, because its applica- 
 tion to railroads would operate as an embargo upon commerce. Because of these 
 results, as well as from the language of the statutes, we are of the opinion that 
 the air-brake sections of the Safety Appliance Acts were not intended to 
 apply to switching operations. — Amidon, D. /., pp. 16-17-18. 
 
62 SAFETY APPLIANCE ACTS. 
 
 See also: 
 
 U. S. V. New York Central & H. R. R. Co., 205 Fed., 428. 
 
 District Court, Western District of New York, May 26, 1913. 
 
 The undisputed facts show that the train, consisting of 39 empty freight cars, 
 only 25 of which were equipped with air brakes, was transferred from the yard of 
 the defendant at Charlotte Junction, N. Y., to its Rochester yard terminal, a dis- 
 tance of 4 miles, where the cars were customarily classified and inspected. * * * 
 
 Assuming that the locomotive and cars in question constituted a train, as 
 that term is defined in Webster's Dictionary and in various adjudications cited in 
 U. S. y. Grand Trunk Ry. Co., 203 Fed.^ 775, recently decided by this Court, and 
 assuming that in order to reach the main yards it was necessary for such train to 
 go over part of the through highway over which interstate traffic was customarily 
 transported, it must nevertheless, I think, be conceded by the Government that 
 the Safety Appliance Acts were never intended to apply to switching operations. 
 Erie R. Co. v. U. S., 197 Fed., 287. The primary object of the statute was to 
 require railroads to equip trains engaged in interstate traffic with air brake appli- 
 ances, so as to mininuze the dangers to the passengers and crews; but obviously 
 
 it was never intended to require such appliances to be coupled up or connected 
 while cars are being hauled by a switching engine from one yard to another, or 
 shunted out at different points, and not actually engaged in interstate traffic — 
 Hazel, D. /., pp. 428, 429. 
 Rosney v. Erie R. Co., 135 Fed., 311. 
 
 (a). The distance a defective car is hanled in violation of the Acts 
 is immaterial. 
 U. S. V. Denver c& R. G. R. Go., 163 Fed., 519. 
 
 Circuit Court of Appeals, 8th Circuit, August 22, 1908. 
 
 The criticism made of this allegation is that it does not 
 specify how far the hauling was continued, or its purpose, and 
 is silent respecting any actual use of the defective coupler; but 
 the answer to this is that the allegation does sufficiently show 
 an actual and substantial hauling in moving interstate traffic 
 and that, this being so, it is immaterial, under the statute, how 
 far the hauling was continued or whether there was any actual 
 use of the defective coupler. — Van Devanter, G. J., p. 521. 
 TJ, S, V. Gentral of Georgia Ry. Go., 157 Fed., 893. 
 
 District Court, Northern District of Alabama, Sept. 27, 1907. 
 While the evidence does not show that the defendant hauled 
 the car across the state line, still the defendant is engaged in 
 interstate traffic, no matter how short the movement, if the 
 traffic hauled is in course of movement from a point in one 
 State to a point in another. — Hundley, D. J., p. 894. 
 U. S. V. Southern Pacific Go., 167 Fed., 699. 
 
 District Court, Northern District of California, Dec. 4, 1908. 
 The penalty under the Safety Appliance Act applies to 
 every defective car hauled contrary to its provisions, whether 
 or not each car was hauled separately or in a train together; 
 and it matters not how far each car was hauled. It is the use 
 of the car in a defective condition that the law seeks to prevent, 
 and not the length of the haul. — De Haven, D. J., p. 701. 
 U. S. V. Northern Pacijic Ry. Go., [unreported]. 
 
 District Court, Western District of Washington, Dec. 5, 1913. 
 
 It is no defense for the defendant to say that a car defective 
 
 as to safety appliances was only hauled a short distance, or that 
 
 during such haul no attempt was made nor became necessary to 
 
 actually use the appliance complained of as being defective. 
 
SCOPE. 63 
 
 The length of the haul is not material nor is the prohibition in 
 the Act aimed at the use of any particular appliance; that is, it 
 is not necessary for the Government to show that an employee 
 actually jeopardized his life or limb in attempting to use some 
 particular defective appliance. — Cushman, B. J. 
 U. S. V. Southern Pacific Co., 154 Fed., 897. 
 
 18. The Acts impose upon all carriers subject to their terms an obli- 
 gation to maintain repair points at suitable intervals along their 
 lines of railroad, and to provide at such points such appropriate 
 material and facilities for repair as will enable them to comply 
 with the requirements of the statute. 
 TJ, S. V. Atchison, T. cfc S. F. Ry. Co., 167 Fed., 696. 
 
 District Court, Northern District of California, Dec. 1, 1908. 
 You are instructed that it is the duty of a railroad company, 
 subject to the provisions of the Safety Appliance Act, to estab- 
 lish reasonable repair points along its line of railway for the 
 making of repairs of the kmd necessary to comply with the law — 
 that is to say, repair points at places where they are reasonably 
 required; that it is also the duty of such railroad company to 
 have on hand at such repair pomts the material and facilities 
 necessary to make all such repairs, and that such railway com- 
 pany must use reasonable foresight in providing material and 
 facilities for such purpose; * * *. — Be Haven, B. J., p. 698. 
 TJ, S. V. Southern Pacific Co., 167 Fed., 699. 
 
 District Court, Northern District of Calif orma, Dec. 4, 1908. 
 And it is the duty of every railway company subject to this 
 law to esta,blish reasonable repair points along its line of railroad 
 for the making of all repairs necessary to comply with the law; 
 that is, it is its duty to establish repair points at all places along 
 the line of road where it is reasonably necessary that they should 
 be established, in order faithfully to comply with the law. 
 
 Inasmuch as inability alone will excuse a company from 
 a literal compliance with the law, it is the duty of such company 
 to have the material and facilities on hand at every repair point 
 to make repairs of the kind necessary to comply with the provi- 
 sions of the Safety Appliance Act.— Be Haven, B. J., p. 701. 
 U. S. V. Atchison, T. <& S. F. Ry. Co., [unreported]. 
 
 District Court, Fourth District of Arizona, July 17, 1908. 
 Inasmuch as inability alone will excuse the common car- 
 rier from a literal compliance with the Act, it is the duty of 
 the common carrier to nave the material and facilities on hand 
 at each repair point which may be needed to make repairs of the 
 kind necessary to comply with the requirements of the Safety 
 Appliance Acts. It is tne duty of the common carrier to use 
 reasonable foresight in providing material and facilities for such 
 purpose. — Sloan, B. J. 
 TJ. S. V. Baltimore & 0. R. Co. [unreported]. 
 
 District Court, Northern District of West Virginia, Jan. 18, 1909. 
 
 Now, that you may understand that more fully, let me say to 
 
 you that it is entirely reasonable that a railroad company should 
 
64 SAFETY APPLIANCE ACTS. 
 
 be required to maintain repair shops or repair material and make 
 inspections and repairs at places within reasonable distances of 
 each other; that in establisning such repair points the company 
 has the right, in the ordinary operation of their trains between 
 those repair points, when a train is in operation and defects arise, 
 reasonably, to carry the car the appliances on which are broken 
 or defective, to the first repair point, but they do not have the 
 right, having carried it to that point, to take it beyond that 
 point without discovering and without making the necessary 
 repairs to those safety appliances attached to that car, and if 
 they do carry it beyond tnat point they are liable to the penalty 
 provided for by this law. — Dayton^ D. J . 
 U. S. V. Southern Padjic Co. [unreported]. 
 
 District Court, Di-itrict of Nevada, November 2-1, 1909. 
 
 It is the duty of a railroad C)mpany, subject to the pro- 
 visions of the Safety Appliance Act, to establish reasonable 
 repair points along its line of railway for the making of repairs of 
 the kind necessary to comply with the law — that is to say, repair 
 points at places where they are reasonably required; it is also 
 the duty of such a company to have on hand at such repair points 
 the material and facilities necessary to make all such repairs, and 
 such railway company must use reasonable foresight in providing 
 the material and facilities for such purpose. — Farrington, D. J, 
 
 19. The Acts extend* to the Island of Porto Bico: 
 
 American R. Co. of Porto Rico v. Bidricksen, 227 U. wS., 145. 
 Supreme Court, January 27, 1913. 
 
 That it [Employers' Liability Act] did extend to Porto Rico 
 was expressly decided in American R. Co. of Porto Rico v. Birch, 
 224 U. S., 547. The question as to whether the Safety AppUance 
 Act extended to that island was reserved in the Birch Case. We 
 are of opinion that the Act does extend to Porto Rico. * * * 
 It is not easy to see how eUect can be given to the Employers' 
 Liability Act of 1908 in Porto Rico without concluding that this 
 Act of 1903 is also in force there, since the former, as pointed 
 out in the Birch Case, provides in its third section 'Hhat no 
 employee who may be injured or killed shall be held to have 
 been guilty of contributory negligence in any case where the 
 violation by such common carrier of any statute enacted for 
 the safety of employees contributed to the injury or death." 
 The fourth section contains a like provision concerning assump- 
 tion of risk. These considerations lead to the conclusion that 
 the court below did not err in ruling that the Act extended to 
 Porto Rico. — Lurton, Justice, pp. 148-149. 
 
 * By Executive Order ol President Roosevelt, dated January 6, 1909, the require- 
 ments of the Acts were extended to the Panama Canal Zone. 
 
POWER BRAKES. 65 
 
 D. POWER DRIVING-WHEEL BRAKES AND 
 TRAIN-BRAKE SYSTEMS. 
 
 1. Provisions of the Law: 
 
 That from and after the first day of January, eighteen hundred and 
 ninety-eight, it shall he unlawful for any conunon carrier engaged in 
 interstate commerce by railroad to use on its line any locomotive engine 
 in moving interstate traflS.c not equipped with a power driving-wheel 
 brake and appliances for operating the train-brake system, or to run 
 any train in such traffic after said date that has not a sufiB.cient num- 
 ber of cars in it so equipped with p'ower or train brakes that the 
 engineer on the locomotive drawing such train can control its speed 
 without requiring brakemen to use the common hand brake for that 
 purpose.— ^ec. 1, Act March 2, 1893 [27 Stat, at L., 531]. 
 
 That whenever, as provided in said Act, any train is operated with 
 power or train brakes, not less than fifty per centum of the cars in such 
 train shall have their brakes used and operated by the engineer of the 
 locomotive drawing such train; and all power-braked cars in such train 
 which are associated together with said fifty per centum shall have 
 their brakes so used and operated; and, to more fully carry into effect 
 the objects of said Act, the Interstate Commerce Commission may, 
 from time to time, after full hearing, increase the minimum percentage 
 of cars in any train required to be operated with power or train brakes 
 which must have their brakes used and operated as aforesaid; and 
 failure to comply with any such requirement of the said Interstate Com- 
 merce Commission shall be subject to the like penalty as failure to 
 comply with any requirement of this section. — Sec. 2, Act March 2, 1903 
 [32 Stat. atL., 943]. 
 
 It is ordered, That on and after September 1, 1910, on all railroads 
 used in interstate commerce, whenever, as required by the Safety Ap- 
 pliance Act as amended March 2, 1903, any train is operated with power 
 or train brakes, not less than 86 per cent of the cars of such train shall 
 have their brakes used and operated by the engineer of the locomotive 
 drawing such train, and all power-brake cars in every such train which 
 are associated together with the 86 per cent shall have their brakes so 
 used and operated. — Order of the Commission of June 6, 1910. 
 
 (a). ''Associated," as used in section 2 of the Act of 1903, defined. 
 Lyon V. Charleston & W. C. By. Co., 56 S. E., 18. 
 
 Supreme Court of South Carolina, December 17, 1906. 
 
 The statute does not require all cars which may be equipped 
 with power brakes to be coupled or associated together but only 
 50 per cent of such cars, but it does require all that may have 
 been equipped with power brakes and actually associated with 
 50 per cent to be controlled by the engineer from the locomotive. 
 The statute contemplates and allows that there may be cars 
 in the train equipped with air brakes and not associated with 
 the 50 per cent operated from the engine. The word ^'asso- 
 ciated," as here used, manifestly means the cars immediately 
 connected with the 50 per cent equipped with power brakes 
 and operated from the engine; and tnose associated cars are 
 also required to be operated from the engine. But the terms 
 of the statute not only fail to require all cars of the train to be 
 
 50611—15 5 
 
66 SAFETY APPLIANCE ACTS. 
 
 equipped with air brakes operated from the engine, but im- 
 pliedly excludes such requirement, by expressing the require- 
 ment that such cars when associated with the minimum number 
 of cars shall be so equipped. — Woods, J., p. 22. [The minimum 
 percentage of power or train-braked cars to be used and operated 
 was by order oi the Commission dated November 15, 1905, increased 
 from 50 per cent, to 75 per cent., and by order of June 6, 1910, to 
 85 per cent.] 
 
 2. In computing the percentage of operative air-brake equipment in 
 
 any given train, the engine and tender are to be counted as two 
 cars. 
 U. S. V. Qhesapeake <& 0. R]i. Oo. [unreported]. 
 
 District Court, Southern District of West Virginia, Dec. 2, 1908. 
 Now, I think that is a correct interpretation of the law, that 
 in determining the proportion of cars controlled by air you should 
 count the engine and the tender as two of the cars, they being, unless 
 shown to be otherwise, equipped with air, because the engineer 
 controls the air from the engine. — Keller, D. J. 
 
 3. The Acts do not directly prohibit the use of individual cars on which 
 
 the air brakes have been "cut out." 
 U. S. V. Baltimore cfe 0. R. Co., 176 Fed., 114. 
 
 District Court, Western District of Pennsylvania, Jan. 18, 1910. 
 It was admitted at the trial that said four cars were defec- 
 tive and out of repair. It did not appear how long their brakes 
 had been unused. The testimony showed that they had their air 
 ''cut out"; that is, cut off in the pipes extending from the main 
 air line of the train to the brakes. The air was not interfered 
 with in passing through said cars to other cars. It seems plain 
 that with brakes cut out for defects they ceased to be power- 
 braked cars and became part of the allowed percentage offhand- 
 braked cars. The Act nowhere imposes a penalty for using an 
 air-braked car with a cut-out brake, as it does for using one with 
 a defective coupler, or one without grab-irons or handholds. — 
 Orr, D. J., pp. 118-119. 
 
 4. In the absence of evidence of insufficient air-brake equipment, the 
 
 use of handbrakes, not to control the speed of a train but to 
 insure the safety of its movements, is not a violation of the Acts. 
 TJ. S. V. Baltimore & 0, R. Co., 176 Fed., 114. 
 
 District Court, Western District of Pennsylvania, Jan. 18, 1910. 
 That the Act of 189.3 and its amendments did not prohibit 
 the use of hand brakes is clear. There is no such prohibition in 
 them. The first section of the Act of 1893 intends that the engi- 
 neer should control the speed of the train without requiring 
 brakemen to use the common hand brake for that purpose. The 
 power to the Interstate Commerce Commission to extend the 
 time for compliance with the Act and to enlarge the minimum 
 requirement, and the indefinite extension as indicated by fixing 
 the minimum at 75 per cent, all support the same view. * * * 
 It is urged, however, that the air-brake provision is so similar to 
 the coupler provision of the Act (in the second section) that 
 decisions construing the latter should apply to the former. The 
 coupler provision of the Act makes it unlawful to use any car in 
 
POWER BRAKES. 67 
 
 interstate traffic ''not equipped with couplers coupling auto- 
 matically by impact, and which can be uncoupled without the 
 necessity of men going between the cars." Clearly it prohibits 
 the use of certain couplers. As stated in Jolmson v. Southern 
 Pacific Co., 196 U. S., 1, 19, the test of compliance is whether 
 men must go between the cars to couple or uncouple them. The 
 Act does not prohibit men from going between the cars. It is a 
 well-known fact, and admitted by plaintiff at the trial, that men 
 are required to go between the cars for the purpose of connecting 
 the air line of the power-brake system in use as required by the 
 Act. Proof of the mere fact that men would go between the cars 
 would not be proof that the couplings were not such as were 
 required. Just as in the case at bar, proof of the mere fact that 
 hand brakes were used on the Sand ratch grade would not be 
 evidence that the trains were not properly equipped with the 
 requisite number of power-brake cars. — Orr, D. J., pp. 117-118. 
 
 The requirement of efficient air-brake equipment presupposes that 
 such equipment shall be inspected at terminals. 
 
 U. S. V. Erie R. Co., 212 Fed., 853. 
 
 Circuit Court of Appeals, 3d Circuit, April 2, 1914. 
 
 These proofs show that the air coupling of trains, such as 
 covered by the present indictments, to make the switch movement 
 through the tunnel and between the Bergen, Jersey City, and 
 Weehawken subyards, would require a delay of 1 hour and 25 
 minutes in the movement of eacn train. In this connection we 
 pass by as untenable the contention of the Government that 
 part oi the delay might be avoided b}^ dispensing with testing; 
 that the Government officers would be satisfied with coupling. 
 We can not accede to this, and we think on mature reflection it 
 would not be pressed. It suffices to say that if Congress meant 
 that cars were to be air coupled while being switched, it did not 
 intend to relieve the railroad from a thorough inspection of such 
 couplings before they were used. It would not only be negli- 
 gence for the company to fail to so inspect, but the manifest 
 injustice of leading men to place reliance on the efficiency of 
 untested appliances borders so near on positive and misleading 
 wrong that we dismiss such contention without further discus- 
 sion. We hold that air coupling in switching was not included 
 in the statute. If we are wrong in that, if air-coupled switching 
 is the statutory duty, then there must go with it such prelim- 
 inary tests of such appliances as will insure their fitness to fulfill 
 the statutory purposes in view, namely, that the engineer on the 
 locomotive drawing such train be able to control its speed with- 
 out requiring brakemen to use the common hand brake for that 
 purpose. To forego inspection and the time needed therefor is 
 not to be countenanced. The mere fact that the cars in these 
 terminals come from other systems, whose standards of mainte- 
 nance differ, would of itself require a more careful and thorough 
 test and inspection before the cars were subjected to the exactions 
 of an air-coupled service. — Buffington, C. J., p. 861. 
 
 The air-brake provisions of the Acts apply no less to inter-yard 
 or switching movements than to main line operations. See 
 Item C-17, pp. 49, 53, ante. 
 
68 SAFETY APPLIANCE ACTS. 
 
 E. COUPLERS. 
 
 1. Provisions of tlie Law: 
 
 That on and after the first day of January, eighteen hundred and 
 ninety-eight, it shall be unlawful for any such common carrier to haul 
 or permit to be hauled or used on its line any car used in moving 
 interstate traflSLc not equipped with couplers coupKng automatically 
 by impact, and which can be uncoupled without the necessity of men 
 going between the ends of the cars. — Sec. 2, Act March 2, 1893 [27 Stat, at 
 L., 531]. 
 
 That the provisions and requirements of the Act entitled "An Act 
 to promote the safety of employees and travelers upon railroads by 
 compelling common carriers engaged in interstate commerce to equip 
 their cars with automatic couplers and continuous brakes and their 
 locomotives with driving-wheel brakes, and for other purposes," 
 approved March second, eighteen hundred and ninety- three, and 
 amended April first, eighteen hundred and ninety-six, shall be held to 
 apply to common carriers by railroads in the Territories and the Dis- 
 trict of Columbia and shall apply in all cases, whether or not the 
 couplers brought together are of the same kind, make, or type; and 
 the provisions and requirements hereof and of said Acts relating to 
 • train brakes, automatic couplers, grab irons, and the height of draw- 
 bars shall be held to apply to all trains, locomotives, tenders, cars, 
 and similar vehicles used on any railroad engaged in interstate com- 
 merce, and in the Territories and the District of Columbia, and to all 
 other locomotives, tenders, cars, and similar vehicles used in connec- 
 tion therewith, excepting those trains, cars, and locomotives exempted 
 by the provisions of section six of said Act of March second, eighteen 
 hundred and ninety-three, as amended by the Act of April first, 
 eighteen hundred and ninety-six, [i. €., trains composed of four-wheel cars or 
 to trains composed of eight-wheel standard logging cars where the height of such 
 car from top of rail to center of coupling does not exceed twenty-five inches, or to 
 locomotives used in hauling such trains when such cars or locomotives are exclu- 
 sively used for the transportation of logs'] or which are used upon street 
 railways.— iSec. 7, Act March 2, 1903 [32 Stat, at L., 943]. 
 
 2. The provision of the Act of 1893 that couplers shall be operative 
 
 '^ without the necessity of men going between the ends of the 
 cars" applies to coupling as well as to uncoupling operations. 
 
 Johnson V. Southern Pacific Co., 196 U. S., 1. 
 Supreme Court, December 19, 1904. 
 
 We dismiss as without merit the suggestion, which has been 
 made, that the words "without the necessity of men ^oing 
 between the ends of the cars," which are the test of comphance 
 with section 2, apply only to the act of uncoupling. The phrase 
 literally covers both coupling and uncoupling, and if read, as 
 it should be, with a comma after the word '^uncoupled," this 
 becomes entirely clear. — Fuller, Chief Justice, pp. 18-19. 
 
 Chicago, M. cSc St.. P. Ry. Co. v. Voellcer, 129 Fed., 522; U. S. 
 V. Chicago, M. cfc St. P. By. Co., 149 Fed., 486; V. S. v. 
 Central of Georgia Ry. Co., 157 Fed., 893; If. S. v. Nevada 
 County N. G. Ry. Co., 167 Fed., 695; Southern Ry. Co. v. Sim- 
 mons, 55 S. E.. 459; Montgomery v. Carolina & N. W. R. Co., 
 80S. E., 83. 
 
COUPLERS. 69 
 
 3. The Acts require tliat couplers shall be operative on both ends* 
 of cars: 
 
 U. S. V. Denver cfc R. G. R. Co,, 163 Fed., 519. 
 
 Circuit Court of Appeals, 8th Circuit, August 22, 1908. 
 
 An all-sufficient answer to this contention [that an uncoup- 
 ling between a defective and an operative coupler may be effected 
 by means of the lever attached to the operative coupler] is that 
 the statute in terms requires that every car to which it applies 
 shall be equipped with '^couplers" of a prescribed operative type, 
 and the reasonable attainment of its manifest object renders it 
 necessai;^ that the coupler at each end of the car shall conform to 
 this requirement. — Van Devanter, 0. J., p. 521. 
 
 U. S. V. Central of Georgia Ry. Co., 157 Fed., 893. 
 
 District Court, Northern District of Alabama,September 27, 1907. 
 The Safety Appliance Act requires that each coupler on a car 
 be operative in itself, so that an employee will not have to go to 
 another car to couple or uncouple the car in question. The pro- 
 visions as to coupling and uncoupling apply to the coupler on 
 each end of every car subject to the law. It is wholly immaterial 
 in what condition was the coupler on the adjacent car or any other 
 car or cars to which each car sued upon was, or was to be, coupled. 
 The equipment on each end of these two cars must be m such 
 condition that whenever called upon for use it can be operated 
 without the necessity of men gomg between the ends of the cars. — 
 Hundley, D. J., pp. 894-895. 
 
 U. S. Y.'^ PUladelpUa cfe R. Ry. Co., 160 Fed., 696; U, S. v. 
 Louisville <& N. R. Co., 162 Fed., 185; U. S. v. Chicago Great 
 Western Ry. Co., 162 Fed., 775; U. S. v. Nevada County N. G. R. 
 Co., 167 Fed., 695; V. S. v. Atchison, T. c& S. F. Ry. Co., 167 
 Fed., 696; U. S. v. Southern Pacific Co., 167 Fed., 699; U. S. v. 
 Baltimore cfc 0. R. Co., 170 Fed., 456; U. S. v. Southern Ry. Co., 
 170 Fed., 1014; U. S. v. Wahash R. Co., D. C, S. D. Illinois, 
 June 6, 1907, Humphrev, D. J. [unreport.. d]; U. S. v. Philadel- 
 phia & R. Ry. Co. and tl. S. v. Lehigh Valley R. Co., D. C, E. D. 
 Pennsylvania, Mar. 17, 1908, McPherson, D. J. [unreported]; 
 U. S. V. Pennsylvania R. Co., D. C, E. D. Pennsylvania, Mar. 
 18, 1908, McPherson, D. J. [unreported]; U. S. v. Atchison, T, cfe 
 S. F. Ry. Co., D. C, D. Arizona, July 17, 1908, Sban, D. J. 
 [unreported]; JJ. S. v. ChesapeaJce c& &. Ry. Co., D. C, S. D. 
 West Virginia, Dec. 2, 1908, Keller, D. J. [unreported]; U. S. v. 
 Pennsylvania R. Co., D. C, W. D. Pennsylvania, Nov. 3, 1909, 
 Orr, D. J. [unreported]; U. S. v. Southern Pacific Co.,D. C, D. 
 Nevada, Nov. 24, 1909, Farrington, D. J. [unreported]. 
 But see: 
 
 U. S. V. Northern Pacific Ry. Co. [unreported]. 
 
 District Court, Western District of Wasliington, Dec. 5, 1913. 
 
 In connection with the claim regarding this caboose, that 
 
 the coupling device was out of repair, and that it was necessary 
 
 *The end of the car on which the brake staff is located is known in practice as the 
 "J5 " end, the opposite end of the car being known as the "-4" end. When there 
 are two brake staffs on the same car, as well as on cars without any brake staff, 
 the end of the car toward which the push rod travels is knowTi as the "S" end. 
 
70 SAFETY APPLIANCE ACTS. 
 
 for some one to go in between the ends of the cars to uncouple 
 them, there was some testimony by the conductor that he went 
 to the other end of the caboose and removed the clevis and 
 repaired this defect. You \vi\\ understand that if there was one 
 end of the caboose that was not in use, if it was not actually used 
 during the operations of this train, that it would not be a violation 
 of the law it the one end that was in use was properly equipped, 
 because it would not be necessary for a man to go around to the 
 hind end of the train to do any coupling or uncoupling. — Gush- 
 man, D. J. 
 
 — (a). But the Acts do not require automatic couplers between engines 
 and tenders. 
 Pennell v. Philadelphia & R. By. Co., 231 U. S., 675. 
 Supreme Court, Januai-y 5, 1914. 
 
 Engine and tender are a single thing; separable, it may be, 
 but never separated in their ordinary and essential use. The 
 connection between them ; that is, between the engine and tender, 
 it was testified, was in the nature of a permanent coupling, and 
 it was also testified that there was practically no opening between 
 the engine and tender, and that attached to the engine was a draw- 
 bar which fitted in the yoke of the tender, and the pin was dropped 
 down to connect drawbar and yoke. The necessary deduction 
 from this is that no dangerous })Osition was assumed by an em- 
 ployee in coupHng the engine and tender for the reason that the 
 pin was dropped through the bar from the tank of the tender. 
 The case at bar, therefore, is not brought either within the mis- 
 chief or the remedy of the Act. * * * But this Act [of 19031 
 does not destroy the integrity of the locomotive and tender. It 
 is entirely satisfied by requiring the automatic coupler between 
 the tender and the cai*s constituting the train; that is, to the 
 rear end of the tender. And this requirement fulfills the pur- 
 pose of the statute, which, we have seen, does not regard the 
 strength of the connections between the cars, even if it may be sup- 
 posed that an automatic coupler is the stronger, but does regard 
 safety in making and unmaking the connections. * * * It is 
 of special significance, therefore, that in its order under the Act of 
 Apiil 14, 1910, which was supplemental of the other Acts, desig- 
 nating the number, dimensions, location and manner of applica- 
 tion of certain appliances, it [the Interstate Commerce Commis- 
 sion] provided as follows: '^ Couplers: Locomotives shall be 
 equipped with automatic couplers at rear of tender and front 
 of locomotive." That is, couplers were required where danger 
 might be incurred bv the employees. — McKenna, Justice, pp. 
 678, 679-680. [Affirming the judgment of the Circuit Court of 
 Appeals for the 3rd Circuit in Pennell v. Philadelphia cfc B. Ry. 
 Co., 203 Fed., 681.] 
 
 4. The Acts require that couplers shall be operative in an ordinary 
 and reasonable manner. 
 Burho V. Minneapolis & St. L. By. Co. ,1^1 N. W., 300. 
 Supreme Court of Minnesota, May 9, 1913. 
 
 To say that the law has been complied with when the coupler 
 can be made to work only after extraordinary efforts, or sporad- 
 
COUPLERS. 71 
 
 ically, or by opening the knuckle thereof with the hand, would 
 give very little protection and relief to employees. If a coupler 
 fails to work when an honest and reasonable effort is made to 
 operate it, under circumstances and in the manner it is designed 
 to be operated, w'e conclude the law is not complied with. — Holt, 
 J., p. 302. 
 Popplar V. Minneapolis, St. P. d^ S. S. M. Ry. Co., 141 N. W., 798; 
 Willett V. Illinois Central R. Co., 142 N. W., 883. See also 
 Chicago, R. I. & P. Ry. Co. v. Brown, 229 U. S., 317. 
 — (a).. And repeated unsuccessful efforts to operate a coupler in an 
 ordinary and reasonable manner afford some evidence that it is 
 defective. 
 i\ichols V. Chesapealce <& 0. Ry. Co., 195 Fed., 913; Montgomery v. 
 Carolina & N. W. R. Co., 80 S. E., 83; Nashville, C cfc St. L. Ry. 
 Co. V. Benry, 164 S. W., 310. 
 
 6. The Acts require that the couplers actually used or attempted 
 to be used at any given time shall be operative of their own 
 mechanism : 
 
 Johnson v. Southern Pacific Co., 196 U. S., 1. 
 Supreme Court, December 19, 1904. 
 
 But we think that what the Act plainly forbade was the 
 use of cars which could not be coupled together automatically 
 by impact, by means of the couplers actually used on the cars 
 to be coupled. — Fuller, Chief Justice, p. 16. 
 
 TJ. S. y. Louisville cfc N. R. Co., 162 Fed., 185. 
 
 District Court, Southern District of Alabama, April 9, 1908. 
 The law forbids the use of cars which could not be coupled 
 together automatically by impact by means of the couplers 
 actually used on the cars to be coupled, and the object of the 
 law is to render it unnecessary for a person operating the couplers 
 to go between the ends of the cars to uncouple them. — Toulmin, 
 D. J., p. 186. 
 
 TJ. S. V. TUinois Central R. Co., 177 Fed., 801 ; Chicago, M. c& P. S. 
 Ry. Co. V. U. S., 196 Fed., 882; U. S. v. WaUsh R. Co., D. C, 
 S. D. Illinois, June 6, 1907, Humphrey, D. J. [unreported]; 
 U. S. V. Chicago, M. cfc P. S. Ry. Co., D. C., D. Montana, May 2, 
 1911, Dietrich, D. J. [unreported]. See also Hohenleitner v. 
 Southern Pacific Co., 177 Fed., 796; Philadelphia <& R. Ry. Co. 
 V. WinUer, 56 Atl., 112. But see U. S. v. Montpelier & W. B. 
 R. Co., 175 Fed., 874. 
 
 — (a). But if a coupler is in fact defective, it is not necessary that it 
 shall be actually used or attempted to be used in order to con- 
 stitute a violation of the Acts: 
 U. S. v. Denver cfc R. G. R. Co., 163 Fed., 519. 
 
 Circuit Court of Appeals, 8th Circuit, August 22, 1908. 
 
 The criticism made of this allegation is that it does not 
 specify how far the hauling was continued, or its purpose, and is 
 silent respecting any actual use of the defective coupler; but the 
 answer to this is that the allegation does sufficiently show an 
 actual and substantial hauling in moving interstate traffic and 
 
72 SAFETY APPLIANCE ACTS. 
 
 that, this being so, it is immaterial under the statute, how far 
 the hauling was continued or whether there was any actual use 
 of the defective coupler. — Fa?i Devanter, C. J., p. 521. 
 Z7. S. V. Northern Pacific Ry. Co., D. C, W. D. Washington, Dec. 5, 
 1913, Cushman, D. J. [unreported]. 
 
 The Acts do not contemplate that employees shall be required to 
 go around, over or under cars in order to operate couplers by 
 means of the levers on the opposite sides of adjacent cars. 
 Central Vermont By. Co. y. U. S., 205 Fed., 40. 
 
 Circuit Court of Appeals, 1st Circuit, May 13, 1913. 
 
 Uncoupling levers on the adjoining ends of two cars, it 
 appeared, are customarily located upon opposite sides, and to 
 get from the operating end of one of these levers to the operating 
 end of the other it is necessary to go over, under, or around the 
 train. * * * The District Court refused to rule that upon 
 the evidence the plaintiff could not recover the penalties demand- 
 ed under the Act, or to rule that in order to recover them plain- 
 tiff must prove it impossible to uncouj)le each car in question 
 from the car to which it was coupled Avithout the necessity of a 
 man's going between the two cars, or to rule that if it was possi- 
 ble so to uncouple the two cars the Act was not violated, even 
 though one of tne two coupled cars did not have an uncoupling 
 lever in working order. * * * We think the refusals and 
 rulings were right. — Dodge, C. J., p. 41. 
 Donegan v. Baltimore <& N. Y. Ry. Co., 165 Fed., 869. 
 
 Circuit Court of Appeals, 2nd Circuit, November 16, 1908. 
 His first obligation was to use the safety appliance. He 
 attempted to use the appliance on his side of the car, but it was 
 broken. He could only nave used the appliance on the opposite 
 side of the car — provided it was in worlang order — by in some 
 way going around or across the moving train. He could hardly 
 have accomplished this before reaching the west yard switch. 
 He attempted to obey his order by uncoupHng by hand. Under 
 the circumstances it can not be said as a matter of law that he 
 adopted a dangerous method of discharging his duty when a com- 
 paratively safe means was open to him. — Noyes, C. J., p. 872. 
 Nichols V. Chesapealce & 0. Ry. Co., 195 Fed., 913. 
 
 Circuit Court of Appeals, 6th Qrcuit, April 2, 1912. 
 
 It is true that it would have been possible for him to climb 
 over the train and operate the lever on the other side or to refuse 
 to go between the cars until the train had stopped; but we 
 can not say as a matter of law that it was his unquestionable 
 duty to do either one of these things. [Norfolk cfc W. Ry. Co. v. 
 Hazelrigg, 184 Fed., S2S].—Denison, C. J., pp. 918-919. 
 U. S. V. Denver <& R. G. R. Co., 163 Fed., 519. 
 
 Circuit Court of Appeals, 8th Circuit, August 22, 190S. 
 
 But it is said that m truth a coupling between such an inoper- 
 ative coupler and an operative one can be automatically effected 
 by impact, and an uncouphng thereof can also be effected, with- 
 out the necessity of a m.an going between the ends of the cars, if 
 he happens to be on that side of the track from which the lever of 
 
COUPLERS. 73 
 
 the operative coupler can be manipulated, or if he crosses to that 
 side by going airound, climbing over, or crawling under the cars. 
 That this is so has been shown in other cases which have been 
 before this court. [Citing cases.] But passing the question 
 whether we can here take notice of the fact so asserted and shown, 
 we can not assent to the contention which is founded upon it, 
 namely, that an inoperative coupler — that is, one which can not 
 be properly manipulated preparatory to effecting a coupling or an 
 uncoupling, as the case may be, without a man going between the 
 ends 01 the cars — is yet to be regarded as conforming to the statute, 
 because another coupler C£i,pable of being so manipulated can be 
 coupled therewith and uncoupled therefrom, without a man going 
 between the cars, if he submits to whatever of inconvenience or 
 risk may be incident to getting at the lever of the operative 
 coupler. — Van Devanter, 0. J., pp. 520-521. 
 
 V. 8. V. Southern Pacific Co., 167 Fed., 699. 
 
 District Court, Northern District of California, December 4, 1908. 
 The law" also means that each car must be equipped with an 
 uncoupling lever on each end thereof, by means of which such car 
 can be at all times uncoupled from another car by a man standing 
 at one end on the side of the car, and without the reasonable 
 necessity of going between such car or any other car, or without 
 going around the end of the train in which said car might be 
 hauled, or without crawling under or over said cars, in order to 
 reach the uncoupling lever of the adjacent car. — Be Haven, D. J., 
 p. 700. 
 
 U. S. v. CJdcago, M. & St. P. By. Co., 149 Fed., 486; U. S. v. 
 Central of Georgia By. Co., 157 Fed., 893 : Norfolk cfe W. B. Co., v. 
 U. S., 177 Fed., 623; NorfoR & W. By. Co. v. Hazelrigg, 184 Fed., 
 828; Chicago, B. I. dc P. By. Co. v. Brown, 185 Fed., 80; Chicago^ 
 B. cfc Q. By. Co. V. U. S., 211 Fed., 12; St. Louis, I. M. cfc S. By, 
 Co. V. Yorl, 123 S. W., 376; Popplar v. Minneapolis, St. P. cfc S. 
 S. M. By. Co., 141 N. W., 798; U. S. v. El Paso & S. W. B. Co., 
 D. C, D. Arizona, Jan. 30, 1907, Doan, D. J. [unreported]; TJ. S. 
 V. Chesapeake & 0. By. Co., D. C, S. D. West Virginia, Dec. 2, 
 1908, Keller, D. J. [unreported]. IJ. S. v. Northern Pacific By. Co., 
 D. C, W. D. Washington, Dec. 5, 1913, Cushman, D. J. [unreported]. 
 See also U. S. v. St. Louis, L M. dc S. By. Co., 154 Fed., 516; 
 Grand Trunk Western By. Co. v. Poole, 93 N. E., 26; Pierson v. 
 Chicago & N. W. By. Co., 102 N. W., 149; Brady v. Kansas aty, 
 St. L. & C. B. Co., 102 S. W., 978; Johnston v. Chicago Great 
 Western By. Co., 164 S. W., 260. 
 
 Per Contra [to the extent of defeating recovery in an action for per- 
 sonal injury]: 
 
 Gilbert v. Burlington C. R. & N. Ry. Co., 128 Fed., 529; Suttle v. Choctaw, 
 0. & G. R. Co., 144 Fed., 668; Union Pacific R. Co. v. Brady, 161 Fed., 719; 
 Norfolk & W. Ry. Co. v. Hazelrigg (1st appeal), 170 Fed., 551. 
 
 But see: 
 
 Chicago, B. cfc Q. By. Co. v. U. S., 211 Fed., 12. 
 
 Circuit Court of Appeals, 8th Circuit, November 28, 1913. 
 The argument of plaintiff in error in support of this con- 
 tention is based mainly upon the decisions of this court in Morris 
 
74 SAFETY APPLIANCE ACTS. 
 
 V. Duluth S. S. & A. Ry. Co., 108 Fed., 747; Gilbert v. Burling- 
 ton, C. R. dc N. Ry. Co., 128 Fed., 529; Suttle v. Choctaw, 0. <& 
 G. R. Co., 144 Fed., 668; and Union Pacific Ry. Co. v. Brady, 
 161 Fed., 719. In those cases it was held that a switchman 
 was guilty of contributory negligence in going between cars to 
 uncouple them if the lever upon either car was operative. The 
 opinions contain no suggestion, however, that the company in 
 suffering the coupling appliance upon one car to be inoperative 
 was not guilty of a violation of the Safety Appliance Act. On 
 the contrary, all those decisions proceed upon the ground that 
 the company was guilty of such a violation of the law, but held 
 that the plaintiff was guilty of contributory negligence, which 
 defeated his right of recovery, because, notwithstanding the 
 company's breach of duty, there was a safe way in which the 
 employee could have uncoupled the cars, and he was bound to 
 choose that way rather than the dangerous method of going 
 between the cars. — Amidon, D. J., p. 14. 
 Norfolk c& W. Ry. Co. v. Hazelrigg (2nd appeal), 184 Fed.. 828. 
 
 7. The preparation of a coupler for impact is a part of the coupling 
 
 operation within the purview of the Acts : 
 Chicago, M. cfc St. P. Ry. Co., v. Voelker, 129 Fed., 522. 
 Circuit Court of Appeals, 8th Circuit, March 26, 1904. 
 
 The preparation of the coupler and the impact are not iso- 
 lated acts, but connected and indispensable parts of the larger 
 act which is regulated by these statutes and the performance of 
 which is intended to be relieved of unnecessary risk and danger. — 
 Van Devanter, C. J., p. 527. 
 U. S. V. Nevada County N. G. R. Co., 167 Fed., 695. 
 
 District Court, Northern District of California, Nov. 28, 1908. 
 The jury is instructed that if it believes from a preponder- 
 ance of the evidence that the defendant hauled the car, as alleged 
 in the first count of plaintiff's petition, when the coupling and 
 uncoupling apparatus on either end of said car was so constructed 
 that in order to open the knuckle w^hen preparing the coupler 
 for use it was reasonably necessary for a man to place part of his 
 body, his arm, or his leg in a hazardous or danojerous position, 
 then its verdict should be for the Government. — De Haven, D. J., 
 p. 696. 
 Burho V. Minneapdis & St. L. Ry. Co., 141 N. W., 300; Grand 
 Trunk Western Ry. Co. v Poole, 93 N. E., 26. 
 
 — (a). But the coupling of air hose between cars is no part of such 
 coupling operation. 
 Yost v. Union Pacific R. Co., 149 S. W., 577 [and cases there cited]. 
 But see Johnson v. Great Northern Ry. Co., 178 Fed.. 643; U. S. 
 V. Boston ch M. R. Co., 168 Fed., 148. 
 
 8. The Acts prohibit the use of a coupler operative only by means of 
 
 a chain connecting with the platform hand-rail. 
 Z7. 8. V. Toledo Terminal R. Co. [unreported]. 
 
 District Court, Northern District of Ohio, June 15, 1909. 
 The only defense that is asserted in regard to that car is that 
 for the convenience of the men they had a chain connecting with 
 
COUPLERS. 75 
 
 the hand-rail by which the apparatus might be uncoupled by 
 using that chain. I do not think that complies with the law, and 
 hence that is no defense in the case. — Cochran, D. J. 
 U. S. V. Southern Pacific Co. [unreported]. 
 
 District Court, District of Nevada, November 24, 1909. 
 
 You are also instructed that a caboose car which has for the 
 convenience of the employees a chain running from the coupler 
 to the handrail, b}' means of which the car may be uncoupled 
 by a man jumping upon the platform of the caboose and pulling 
 the chain, is not equipped in compliance with section 2 of the 
 Safety Appliance Act. This is true provided this is the only 
 device for uncoupling the cars, and the car is used in interstate 
 traffic. — Farrington, D. J . 
 
 9. The Acts prohibit the use of couplers which will not couple auto- 
 matically by impact when cars are brought together : 
 Johnson V. Southern Pacific Co., 196 U. S., 1. 
 Supreme Court, December 19, 1904. 
 
 But we think that what the Act plainly forbade was the 
 use of cars which could not be coupled together automatically 
 by impact by means of the couplers actually used on the cars 
 to be coupled. — Fuller, Chief Justice, p. 16. 
 TJ. S. V. Southern Ry. Co., 135 Fed., 122; U. S. v. Northern 
 Pacific Terminal Co., 144 Fed., 861; V. S. v. Chicago, M. & 
 St. P. Ry. Co., 149 Fed., 486; V. S. v. Philadelphia dc R. Ry. Co., 
 160 Fed., 696; TJ. S. v. Louisville & N. R. Co., 162 Fed., 185; 
 TJ. S. V. Nevada County N. G. R. Co., 167 Fed., 695; TJ. S. v. 
 AtcUson, T. & S. F. Ry. Co., 167 Fed., 696; TJ. S. v. Southern 
 Ry. Co., 170 Fed., 1014: TJ. S. v. Rio Grande Western Ry. Co., 
 174 Fed., 399; WinJcler v. Philadelphia dc R. Ry. Co., 53 AtL, 
 90; Philadelphia cfc R. Ry. Co. v. WinJcler, 56 AtL, 112; Mont- 
 gomery V. Carolina & N. W. R. Co., 80 S. E., 83; TJ. S. v. 
 Philadelphia d^ R. Ry. Co., D. C, E. D. Pennsvlvania, Mar. 
 17, 1908, McPherson, D. J. [unreported]; TJ. S. v. Pennsyl- 
 vania R. Co., D. C, E. D. Pennsylvania, IVIar. 18, 1908, ]\ic- 
 Pherson, D. J. [unreported]; TJ. S. v. Baltimore dc 0. R. Co., 
 D. C, S. D. Ohio, June 10, 1909, Sater, D. J. [unreported]; 
 TJ. S. V. Toledo Terminal R. Co., D. C, N. D. Ohio, June 15, 
 1909, Cochran, D. J. [unreported]; V. S. v. Southern Pacific Co,, 
 D. C, D. Nevada, Nov. 24, 1909, Farrington, D. J. [unreported]. ' 
 
 Per Contra: 
 
 Johnson v. Southern Pacijic Co., 117 Fed., 462. 
 
 — (a). By reason of a clevis pin having been removed; 
 
 U. S. V. Atchison, T. c£' S. F. Ry. Co. [unreported]. 
 
 District Court, Fourth District of Arizona, July 17, 1908. 
 It is a violation of law rendering the common carrier liable 
 under the statute to use a car with the clevis pin of the chain con- 
 necting the lock block to the uncoupling lever broken or removed 
 for any cause, when the effect would be to render the uncoupling 
 mechanism inoperative without the necessity of a man going 
 between the ends of the cars. — Sloan, D. J. 
 
76 SAFETY APPLIANCE ACTS. 
 
 — (i). And the fact that a pin is missing from a coupler at the 
 termination of a given trip affords some evidence that the coupler 
 was defective at the commencement of the journey: 
 TJ. S. V. Indiana Harbor R. Co., 157 Fed., 565. 
 
 District Court, Northern District of Illinois, November 20, 1906" 
 The fact that the pin was missing at the end of the journey 
 is strongly indicative that the defect existed at the point of 
 origin — that is to say, that the pin either was not then present or 
 was so badly worn or loosened that proper inspection would have 
 disclosed the fact. — Landis, D. J.', p. 566. 
 
 Per Contra: 
 
 U. S. V. Illinois Central R. Co., 156 Fed., 182. 
 
 District Court, Western District of Kentucky, November 1, 1907. 
 
 The presumption of innocence will leave no room for the inference that the 
 cars were not properly equipped when that journey was begun, especially as no 
 intelligent person can shut his eyes to the fact that the rapid motion, rough jos- 
 tling, and jolting of the trains and their immense weight may at some time result 
 m injury to such equipment. There can not be much nicety in the movements 
 of freight trains. — Evans, D. J., p. 187. 
 
 — (b). By reason of being worn out: 
 
 VoeXker v. Chicago, M. & St P. By. Co., 116 Fed., 867. 
 
 Circuit Cornet, Northern District of Iowa, June 16, 1902. 
 
 If a railway uses in its business cars which do not conform 
 fco the statutory requirements, either because they never were 
 equipped with automatic couplers, or because the company, 
 through negligence, has permitted the couplers originally suffi- 
 cient to become worn out and inoperative, then the company is 
 certainly m)t performing the duty and obligation imposed upon 
 it by the statute, and is clearly, therefore, chargeable with negli- 
 gence in thus using an improperly ec|uipped car; and the com- 
 pany is bound to know that if it caUs upon one of its employees 
 to make a coupling with a coupler so defective and inoperative 
 that it will not couple by impact, and that to make the coupling 
 the emplo3^ee must subject -himself to all the risks and dangers 
 that inhered in the old and dangerous link-and-pin method of 
 coupling, it is subjecting such employee to the very risk and 
 danger which it is the purpose of the statute to protect him 
 against, so far as that is Treasonably possible. — SJiiras, D. J ., 
 pp. 874-875. 
 
 TJ. S. V. Illinois Central R. Co., 177 Fed., 801. [citing /S^. Louis <& 
 S. F. R. Co. V. Dellc, 158 Fed., 931: U. S. v. Illinois Central R. 
 Co. 170Fed., 542 ; Chicago, M. & St. P. Ry. Co. v. Voellcer, 129 Fed., 
 522.] But see Morris v. St. Louis S. W. Ry. Co. of Texas, 158 S. 
 W., 1055. 
 
 — (c) . By reason of an uncoupling chain being kinked in the coupler 
 head: 
 
 U. S. Y, Denver <& R. G. R. Co., 163 Fed., 519. 
 
 Circuit Court of Appeals, 8th Circuit, August 22, 1908. 
 
 This allegation could be improved in point of directness, but 
 it was evidently intended to mean, and we think it does mean, 
 that the coupler on the ''B" end of the car was out of repair in 
 
COUPLEES. , 7.7 
 
 that the uncoupling chain was Idnked, and that, m consequence; 
 that coupler was moperative in that it would not couple auto- 
 matically by impact, and could not be uncoupled without the 
 necessity of a man going between the ends of the cars. If that 
 was so, one of the couplers with which the car was equipped did 
 not meet the requii-ements of the statute. — Van Devanter, C. J., 
 p. 520. 
 V.S.Y. Southern Paci-fic Co., 167 Fed., 699. 
 
 DistrictCourt, NorthernDistrict of California, December 4, 1908. 
 If this car left Truckee while the chain was so ''kinked," and 
 while in this condition the coupler was inoperative, requiring the 
 reasonable necessity of a man to go between the cars to couple or 
 uncouple them, 3'our verdict should be for the Government. — 
 Be Haven, D. J., p. 702. 
 
 V. S. V. Baltimore & 0. R. Co. [unreported]. 
 
 District C ourt. District of Indiana, December 13, 1910. 
 
 The Government's witness says that he saw that chain 
 kmked ; that he undertook to manipulate that coupler and found 
 it was impossible because of the kmk. On the other hand, one 
 witness for the defendant, as I recall, testified that the chain was 
 too long, and it did kmk, but that he succeeded in puUmg it out. 
 Now, it is not difficult for a person who is used to- weighing 
 evidence to determnie where the truth lies there, and you do not 
 have to impute perjury to anybody. The witnesses for the rail- 
 road themselves testified that the chain kinked because it was too 
 long, which, to my mind, is evidence sufficient to sustain the ver- 
 dict on that count — to sustain a finding that the coupling was 
 defective, and was not such a coupling as would uncouple by this 
 appliance without the necessity of a man going in between the 
 cars. — Anderson, D. J. 
 
 -(d). By reason of the curvature of the track on which the cars in 
 
 question are attempted to be coupled : 
 HoTienleitner v. Southern Pacific Co., 177 Fed., 796. 
 Circuit Court, District of Oiegon, March 7, 1910. 
 
 There is no charge in the complaint that the cars were not 
 
 Erovided with couplers which would couple by impact when 
 rough t together, but the averment is that the lead track in the 
 yards, where the plaintiff's intestate was at work at the time of 
 his death, had a curve of about 20°, so that when the couplers 
 in use on the cars by which he was killed met they passed by 
 each other and would not couple without a person going between 
 the cars to adjust them, and that while the deceased was between 
 the cars for that purpose he was struck and killed. * * * 
 The cars must not only be provided with couplers, but the 
 couplers must be such that when used they will couple together 
 automatically If the cars hauled or used by a carrier engaged 
 in such commerce will not so couple, the law is violated, whether 
 it is due to the character of the car, the kind of equipment used, 
 or, in my opinion, the manner in which tracks employees are 
 required to use in coupling or uncoupling cars or making up 
 trains are located or built. The ultimate end sought by the 
 
78 SAFETY APPLIANCE ACTS. 
 
 law is the coupling and uncoupling of cars used in interstate 
 traffic without the necessity of going between them. This is 
 the test of the compliance with it. As repeatedly pointed out 
 by the courts, especially the Supreme Court in the Johnson Case 
 [196 U. S., 1], the design is to prevent the necessity of railroad 
 employees going between cars in order to make a coupling, and 
 thus protect their lives and limbs. The point to be accom- 
 plished by the law is that emplo3'ees of railroad companies 
 engaged in interstate commerce shall not be required to go be- 
 tween the cars for the purpose of coupling or uncoupling them, 
 and this would be circumvented if the companies are permitted 
 to so construct and maintain their tracks in 3^ards or depot 
 grounds, or other places where employees are required, in the 
 course of their employment, to couple or uncouple cars, in such 
 a condition that the cars used by them will not couple automati- 
 cally with the equipment provided. — Bean, D. J., pp. 797-798. 
 
 Willett V. Illinois Central R. Co., 142 N. W., 883. 
 Supreme C ourt of Minnesota, July 25, 1913. 
 
 The curve in track No. 4, as shown by the plat introduced 
 in evidence by defendant, is what is termed a "ten degree 
 curve," and graduall}- changes to a straight line. The evidence 
 does not show very clearly how much the track curved where 
 the coupling was attempted, but there was some curve at that 
 place. Plaintiff testified that he had made couplings at the 
 same place daily for a year and half preceding the accident, 
 and that the couplings never before failed to make automatically. 
 
 In view of this testimony, and of the testimony as to the 
 extent to which the drawbars in question could be crowded out 
 of line, and of the fact that, at the time of the accident, they 
 were out of line to such an extent that the coupling would not 
 make on impact, the court can not hold as a matter of law that 
 the coupling was attempted at an improper place, or that the 
 couplers ware not defective within the meaning of the Safety 
 Appliance Act. These were questions for the jury and were 
 properly submitted to the jury. — Taylor, CommW., p. 884. 
 
 (e). By reason of the cars to which they are attached being so 
 laden with lumber or other material projecting beyond their 
 ends as to preclude the automatic operation of such couplers: 
 
 V. S. V. Illinois Central R. Co., 177 Fed., 801. 
 
 Circuit Court of Appeals, 6th Circuit, April 5, 1910. 
 
 We can see no substantial difference in principle, so far as 
 concerns the question here involved, between the case of a coupler 
 temporarily inoperative by reason of being out of repair and one 
 rendered equally inoperative because of the loading of the car in 
 such way that the act of uncoupling could not be accomplished 
 without the necessity of a man going between the cars. The 
 latter case, which is presented here, is equally within the mischief 
 which the statute is designed to prevent. * * * 
 
 We are not impressed by the contention of defendant that 
 the facts stated in the declaration do not make it appear that it 
 was necessary to go between the cars to effect an uncoupling, 
 from the fact that such act could be accomplished by getting on 
 
COUPLERS. 79 
 
 top of the car and removing the kimber from over the lever. So 
 long as the lumber was so loaded ^'as to project out over the 
 uncoupling lever" and so as to '' prevent the operation of the 
 uncoupling lever * * * thus necessitating a man or men 
 going between the ends of said car * * * and the car adja- 
 cent to couple or uncouple them/' the automatic apparatus was 
 wholly inoperative, and the situation during the existence of that 
 state of facts was as much fraught with danger to the employee, 
 and as much within the mischief the statute was intended to pre- 
 vent, as if the car were not equipped with automatic devices. — ■ 
 Knappen, 0. J., p. 804. 
 
 (f). The Acts prohibit the use of a car on which a coupler is inop- 
 erative even though the defect may be so obvious that no reason- 
 ably prudent employee would attempt to use such coupler. 
 
 Chicago, M. & P. S. Ry. Co. v. U. S., 196 Fed., 882. 
 Circuit Court of Appeals, 9th Circuit, May 6, 1912, 
 
 It may be true that no reasonably prudont railroad employee 
 would have attempted to couple to the front end of the loco- 
 motive with knowledge of its condition, but that fact does* not 
 avoid the violation of the statute. The defective drawbar 
 remained a danger and a menace, and when all is said, the fact 
 remains that its use in that condition was prohibited. [Citing 
 U. S. V. Denver cfc R. G. R. Co., 163 Fed,, 519, and other cases.] 
 We are referred to Wabash R. Co. v. U. S., 172 Fed., 864, 
 as authority for the proposition that a locomotive engine 
 used in interstate commerce need not necessarily have an 
 automatic coupler at both ends. The court in that case 
 held there was no violation of the Safety Appliance Act in 
 the use of an engine which had originally been equipped 
 with automatic couplers at the A-end and the B-end, but there- 
 after the lock-chain had been disconnected and the knuckle 
 removed from the coupler at the B-end, leaving that coupler in 
 such condition that no other car could be coupled thereto or 
 uncoupled therefrom, and where it appeared that the coupler at 
 the A-end was the only one used at the time in question in moving 
 interstate traffic. While with all respect for that court we are 
 inclined to doubt the correctness of that ruling, we find it suffi- 
 cient for the present case to point to the difference between that 
 case and this. There the coupler had been disconnected and the 
 knuckle taken out ''in pursuance of a purpose that it should not 
 be used." In the case at bar the plaintiff in error was found 
 using a defective coupler at one end of the engine, and thereafter 
 having reversed the engine, was found using the other end for 
 the purpose of transferring cars. Nothing was shown indicative 
 of a purpose to refrain from using both ends of the locomotive 
 for coupling, and no portion of the defective coupling device was 
 removed. That device remained as it was before, a trap to the 
 unwary. — Gilbert, C. J., pp. 884-885. [Affirming the judgment of 
 the District' Court for the District of Montana, and cited with 
 apparent approval by the Supreme Court in Southern Ry. Co. y. 
 Crockett, 234 U. S., 725.] 
 
80 SAFETY APPLIANCE ACTS. 
 
 10. The use of a car on which a coupler is inoperative is the same 
 in legal effect as if such car had never been equipped with auto- 
 matic couplers. 
 
 TaggartY. Republic Iron db Steel Co., 141 Fed., 910. 
 
 Circuit Court of Appeals, 6th Circuit, November 13, 1905. 
 To the suggestion that the presence of the automatic coup- 
 lers changed the situation, it may be said that such a coupler to 
 be effective must work. * * * But, however that may be, a 
 car with an automatic coupler that v^dll not work is to all intents 
 and purposes a car without an automatic coupler, and the switch- 
 man must handle it in the old way, dangerous though that may 
 be. — Richards, C. J., p. 912. 
 Elmore v. Seaboard Air Line Ry. Co., 41 S. E., 786. 
 
 Supreme Court of North Carolina, June 13, 1902. 
 If the automatic coupler was out of repair for a length of 
 time reasonably sufficient to have it repaired, and this was not 
 done, it was the same thing as the failure to have the automatic 
 coupler on that car. — Clark,, J, p. 787. 
 Montgomery v. Carolina <& N. W. R. Co., 80 S. E., 83; Luken v. Lake 
 Shore cfe M. S. Ry Co., 154 lU. App., 550. 
 
 Per Contra: 
 
 Kansas City, M. & B. R. Co. v. Flippo, 35 So., 457; U. S. v. Toledo Terminal R. 
 Co., D. C., N. D. Ohio, June 15, 1909, Cochran, D. J. [unreported]. 
 
 11. A carrier is liable under the Acts for the failure of an employee 
 to connect an uncoupling chain as well for allowing such a 
 chain to become disconnected. 
 
 U. S. V. Great Northern Ry. Co., 150 Fed., 229. 
 
 District Court, Eastern District of Washington, Nov. 28, 1906. 
 If a common carrier can excuse itself because a particular 
 equipment is out of repair, without even explaining why, then 
 it could equip all of its cars, leaving the equipment disconnected, 
 which would require brakemen to enter between them for the 
 purpose of couplmg the same, thereby defeating the purposes of 
 the law altogether. * * * In such a case, until the chain is 
 connected, a car is not equipped with couplers '^ which can be 
 uncoupled without the necessity of men going between the ends 
 of the cars." * * * There are two phases of the case, there- 
 fore, which are conclusive against the defendant: First, indulging 
 the theory that apparatus, the working parts of which were in 
 perfect order, and which only needed to be connected to make the 
 appliance available, was out of repair because not connected, the 
 defendant fails, because it was its duty in this regard to keep the 
 car in repair; second, if the chain never had been connected, then 
 the defendant never did equip the car in the manner provided by 
 law, and in the absence of explanation, it must be presumed that 
 this is the fact.— Whitson, D. J., pp. 230-231. 
 
 JJ. S. V. Atchison, T. cfe S. F. Ry. Co., 167 Fed., 696. 
 
 DistrictCourt,NorthernDistrictof California, December 1, 1908. 
 
 You are instructed that section 2 of the Safety Appliance 
 
 Act imposes upon the defendant an unqualified duty to equip 
 
COUPLERS. 81 
 
 its cars with couplers coupling automatically by impact, and 
 which can be uncoupled without the necessity of men going 
 between the ends of the cars; and if the defendant hauled over 
 its lines of railroad any cars which could not be so operated, 
 either by reason of being improperly equipped or by reason of 
 the original equipment being out of order or disconnected, or 
 otherwise inoperative, your verdict should be for the Govern- 
 ment as to each and every car so hauled. — De Haven, D. J., 
 p. 697. 
 U. S. V. Terminal R. AssWt. of St. Louis [unreported]. 
 
 District Court, Eastern District of Missouri, June 3, 1908. 
 There is no dispute, therefore, that the chains were un- 
 coupled; and it makes no difference whether the chains were 
 broken in fact in the links of the chain or were merely discon- 
 nected. It was the duty of the railroad company and its em- 
 ployees to see that those chains were in condition so that they 
 could be used as this Act contemplates. They should be in 
 such condition that they could be used without necessitating a 
 man going in between the cars. I fail to find any difference, 
 under the provisions of this Act, between a chain that happens 
 to be broken in a link and a chain that is uncoupled and inopera- 
 tive. — Dyer, D. J. 
 
 Per Contra : 
 
 U. S. V. Illinois Central R. Co., 156 Fed.. 182. 
 
 12. The Acts, while permitting such equipment, do not require that 
 cars shall be equipped with double levers: 
 U. S. V. PhiladelpUa cfc R. Ry. Co., 160 Fed., 696. 
 
 District Court, Eastern District of Pa., March 17, 1908. 
 In some instances the lever comes entirely across the ends 
 of the car, so that at whichever side the brakeman or employee 
 happens to be standing he may perform whatever operation is 
 necessary for the purpose of uncoupling. On some of the cars, 
 perhaps the most of them, as the testimop.y would seem to indi- 
 cate, I believe it is only upon one side, and then, of course, they 
 can only be used from that side, but nevertheless they can be 
 so used. That is the provision of the statute. — McPJierson, D. J., 
 p. 698. 
 U. S. V. Pennsylvania R. Co. [unreported]. 
 
 District Court, Eastern District of Pa., March 18, 1908. 
 
 That [uncoupling] is done necessarily through the use of a 
 lever, sometimes of a lever that runs across the entire end, and 
 sometimes of a lever that runs only halfway across, and is, as 
 has been testified to you, always upon the left-hand side of the 
 car as one faces it. Either lever complies with the provision 
 of the statute. — MrPTierson, D. J. 
 Norfollc cfc W. Ry. Co. v. U. S., 177 Fed., 623. 
 .^0611—15 6 
 
82 SAFETY APPLIANCE ACTS. 
 
 — (a). But if double levers are provided, the Acts require that they 
 shall be operative from either side of the cars to which they are 
 attached. 
 Norfolk & F. Ry. Co. v. V. 8., 177 Fed., 623. 
 
 Circuit Court of Appeals, 4th Circuit, March 4, 1910. 
 
 On the other hand, there is no restriction upon the placing 
 of two such levers, one on each side, on the ejid of any or all its 
 cars, if the companies desire or deem it conducive of more effec- 
 tive operation of the coupling automatically by impact without 
 the necessity of men going between the ends of the cai-s. But 
 while this is true, these levers, whether one or more, become 
 parts of the coupling device itself, and we think a fair construc- 
 tion of the statute requires us to hold that the device itself must 
 be in such repair as to be capable of operation, and if the levers 
 furnished to operate it, whether one or two at the end of the 
 car, should, as such parts of it, be kept in cojidition to operate 
 it; that, if there be two, one on each side of the end of a car, 
 and one be maintaiiied in a condition capable of operation and 
 the other not, the latter is calculated only to deceive the em- 
 ployee and under some conditions perhaps create a necessity,. 
 in other conditions at least a temptation, to be negligejit and 
 step between the cars to uncouple them by hand. The defective 
 lever has no business there and should be either made operative 
 or taken away, as it renders, in the true sense of the statute, 
 the coupling device of which it is a part, defective. — Dayton, 
 D. J., p. 627. 
 
 13. The operation of automatic couplers is a proper subject for expert 
 
 testimony: See Part V, Item 8 p. 209, post 
 
 — (a). The exhibition of model couplers to the jury, merely for the pur- 
 pose of illustrating particular defects, is permissible. See Part 
 V, Item 8-(a), p. 210, post. 
 
 14. Congress, in drafting the Acts, took cognizance of the mechanical 
 
 difficulties incident to the interchange of couplers. 
 
 Johnson v. Southern Pacific Co., 196 U. S., 1. 
 Supreme Court, December 19, 1904. 
 
 The diUgence of counsel has called our attention to changes 
 made in the bill in the course of its passage, and to the debates in 
 the Senate on the report of its committee, 24 Cong. Bee, pt. 2, 
 pp. 1246, 1273, et seq. These demonstrate that the difhculty 
 as to interchange ability was fully in the mind of Congress and 
 was assumed to be met by the language which was used. — 
 Fuller, Chief Justice, p. 20. 
 16. The use by a railroad company of a switch engine having no 
 uncoupling levers does not constitute a violation of the Acts 
 unless it is shown that such levers are necessary to enable the 
 engine to be coupled automatically by impact and to be un- 
 coupled without the necessity of men going between such engine 
 and the vehicle from which it is to be uncoupled. 
 U. S. V. Montpelier & F. H. R. Co., lib Fed., 874. 
 
GRAB IRONS OR HANDHOLDS. 83 
 
 F. GRAB IRONS OR HANDHOLDS. 
 
 1. Provisions of the Law: 
 
 That from and after the first day of July, eighteen hundred and 
 ninety-five, until otherwise ordered by the Interstate Commerce 
 Commission, it shall be unlawful for any railroad company to use any 
 car in interstate commerce that is not provided with secure grab irons 
 or handholds in the ends and sides of each car for greater security to 
 men in coupling and uncoupling cars. — Sec. 4, Act March 2, 1893 [27 Stat. 
 at L., 531]. 
 
 That on and after July first, nineteen hundred and eleven, it shall 
 be unlawful for any common carrier subject to the provisions of this 
 Act to haul, or permit to be hauled or used on its line, any car subject 
 to the provisions of this Act not equipped with appliances provided 
 for in this Act, to wit: All cars must be equipped with secure sill 
 steps and efficient hand brakes; all cars requiring secure ladders and 
 secure running boards shall be equipped with such ladders and running 
 boards, and all cars having ladders shall also be equipped with secure 
 handholds or grab irons on their roofs at the tops of such ladders: 
 Provided, That in the loading and hauling of long commodities, re- 
 quiring more than one car, the hand brakes may be omitted on all 
 save one of the cars while they are thus combined for such purpose. — 
 Sec. 2, Act April U, 1910 [36 Stat, at L., 298^. 
 
 2. The purpose of handholds is to secure the safety of men engaged 
 
 in coupling and uncoupling cars. 
 Dawson v. Chicago, R. I. & P. Ry. Co., 114 Fed., 870. 
 
 Circuit Court of Appeals, 8th Circuit, March 31, 1902. 
 
 The purpose of requiring grip irons or handholds to be 
 placed at the end of cars used in interstate commerce seems to 
 have been to aft'ord greater security for employees when they 
 are hi the act of couphng or uncoupling cars. — Thayer, C. J., 
 p. 871. 
 U. S. Y. Boston c& M. R. Co., 168 Fed., 148. 
 
 District Court, District of Massachusetts, January 5, 1909. 
 Now, taking that section as it stands, and giving due 
 weight to the language in which the requirements are expressed, 
 we have to consider just what they mean as appHed to the 
 question arising in this case, and I shall instruct you, gentlemen, 
 that section 4 requires secure grab irons or handholds at those 
 points in the end of each car where they are reasonably necessary 
 in order to afford to men coupling or uncoupling cars greater 
 security than would be afforded them in the absence of any grab 
 iron or handhold at that point or of any appliance affording 
 equal security with a grab iron or handhold. — Dodge, D. J., 
 pp. 150-151. 
 
 U. S. V. Northern Pacific Ry. Co. [imreported]. 
 
 District Court, Western District of Washington, Dec. 5, 1913. 
 
 This handhold or grab iron must be secure — that is, so it 
 
 would not fail a man when he needed it — and it must be so placed 
 
 and of such nature as to conduce to the greater security of a man 
 
 who is coupling or uncoupling the cars. * * * As the 
 
84 SAFETY APPLIANCE ACTS. 
 
 reading of the Act indicates, these handholds are for the protec- 
 tion of the men engaged in the work of coupling or uncoupling 
 cars. In order to faithfully comply with the law these hand- 
 holds should be so located on a car and at such points where they 
 are reasonabh^ required in order that a brakeman or switchman 
 may be afforded greater security than would be afforded him in 
 the absence of such handholds. — Cushman, D. J . 
 
 3. Handholds are required in the ends and sides of all cars to which 
 the Acts apply; 
 
 TJ. S, V. Chicago & N. W. Ry. Co., 157 Fed., 616. 
 
 District Court, District of Nebraska, December 30, 1907. 
 No reason is perceived why a different intention should be 
 imputed to Congress in requiring grab irons upon cars and in 
 recjuiring automatic couplers upon the same cars. The mis- 
 chief to be avoided was the same in either case, and the remedy 
 sought by Congress was obviously the same, and the assimilation 
 of the language in the amendatory Act to that used in sections 
 1 and 2 oi the original Acts leads to the conclusion that it was 
 for the purpose of broadening the Act from its original purpose, 
 as expressed in section 4, in order to make it necessary to pro- 
 vide grab irons on a car whenever it was necessary to provide 
 automatic couplers and a train-brake system. — Munger, D. J., 
 p. 618. 
 
 U. S. V. Baltimore cfc 0. R. Co., 184 Fed., 94. 
 
 District Court, Western District of Virginia, November 28, 1910. 
 As it is not possible to properly assert that in enacting sec- 
 tion 4 Congress was requiring the performance of an act which all 
 men will agree would be entirely useless, it must be admitted 
 that Congress may itself have passed judgment on the utility of 
 handholds, in addition to other appliances, in both the ends and 
 sides of all cars. If so, it is certain that neither judges nor juries 
 have any power to review the judgment of Congress; and, if so, 
 it would have been submitting to tne jury the wisdom or want of 
 it displayed by Congress to have submitted the case at bar to the 
 jury. * * * Aslconstruethestatute, it indicates that Congress 
 has itself passed judgment on the utility of handholds in the ends 
 and sides of cars, and it must be read as an absolute requirement. 
 In a case, therefore, where it is admitted that there were no hand- 
 holds in the sides of the cars, I am unable to perceive that there 
 was any question of fact to be left to the jury. — McDowell, D. J., 
 pp. 97, 98. 
 
 Southern Ry. Co. v. Railroad, Com. of Ind., 100 N. E., 337. See also 
 Adm. Ruling No. 67, cited at p. 48, ante. 
 
 — (a). And the maintenance of only one handhold on each side of a 
 car is not a compliance with the Acts. 
 
 TJ. S. V. Wahash-Pittshurgh Terminal Ry. Co. [unreported]. 
 
 District Court, Western District of Pennsylvania, Nov. 3, 1909, 
 
 Now, I hold, and so instruct you, that the maintenance of 
 
 one grab iron or handhold on each side of the car near the ^^B" 
 
 end thereon is not a compliance with the Act of Congress. I 
 
 think the necessity of having such grab irons or handholds upon 
 
GRAB IRONS OR HANDHOLDS. 85 
 
 the sides of the car near either end of the car is fairly contem- 
 plated by the very language of the Act, because it contemplates 
 in this language, ^'secure grab irons or handholds in the sides of 
 each car." It contemplates, it seems to me, although it is not 
 exactly plam, that the side of each car ought to have more than 
 one grab iron or handhold. — Orr, B.J. 
 
 4. Any reasonable substitute for a handhold is a handhold within 
 the purview of the Acts : 
 
 V. S. V. Boston & M. R. Co., 168 Fed., 148. 
 
 District Court, District of Massachusetts, January 5, 1909. 
 If at any place in the end of this car there was not a grab iron 
 or handhold, properly speaking, but some other appliance, such 
 as a ladder or brake lever, or whatever else you please, which 
 afforded equal security with a grab iron or a handhold at that 
 point, then I shall instruct you that the law has not been violated 
 so far as a grab iron or handhold at that point is concerned. 
 Having something there which performs all the functions of a 
 grab iron or a handhold is just the same thing as having what is 
 properly called a grab iron or a handhold at that point. It may 
 not be possible to say that a coupling lever or a ladder is a grab 
 iron or a handhold, but if it affords the same security to a man 
 who may need to use one that a grab iron or a handhold, prop- 
 erly speaking, would afford, then, in my judgment, the statute 
 has not been violated. — Bodge, B. J., p. 151. 
 
 Z7. S. V. Baltimore <& 0. R. Co., D. C, N. D. West Virginia, Jan. 
 18, 1909, Dayton, D. J. [unreported]; Z7. S. v. Bcdtimore <& 
 0, R. Co., D. C, N. D. Ohio, June 15, 1909, Cochran, D. J. 
 [unreported]. 
 
 — (a). But the necessity of handholds on passenger equipment is not 
 obviated by the presence thereon of air, steam, or signal hose, 
 coupling chains, hand-brake shafts, or other appliances affording 
 some measure of security to employees while coupling and uncou- 
 pling cars ; 
 TJ, S. V. Norfollc & W. R. Co., 184 Fed., 99. 
 
 — (b). And the necessity of handholds in the sides near the rear ends of 
 tenders is not obviated by the fact that uncoupling levers extend 
 practically across the rear ends thereof, in such a position and 
 of such a character as to serve as handholds, unless it is shown by 
 the defendant that handholds, if applied, would not contribute 
 to the greater security of employees in coupling and uncoupling 
 cars: 
 TJ. S. V. Baltimore cfc 0, R. Co., 184 Fed., 94. 
 
 — (c). The determination of what is, and what is not, a handhold within 
 the purview of the Acts, is exclusively within the province of the 
 jury. See Part V, Item 7, p. 208, post. 
 
 (i). The competency of openings in the buffers on the ends of 
 cars, as substitutes for handholds, is not a proper subject for ex- 
 pert testimony, where such openings are subject to the personal 
 inspection of the jury. See Part V, Item 8-(a), p. 209, post. 
 
86 SAFETY APPLIANCE ACTS. 
 
 G. STANDARD HEIGHT OF DRAWBARS. 
 
 1. Provisions of the Law : 
 
 That within ninety days from the passage of this -'':ct the Amexi- 
 can Bailway Association is authorized hereby to designate to the 
 Interstate Commerce Commission the standard height of di-awbars 
 for freight cars, measured perpendicular from the level of the tops 
 of the rails to the centers of the drawbars, for each of the several 
 gauges of railroads in use in the United States, and shall fix a maxi- 
 mum variation from such standard height to be allowed between the 
 drawbars of empty and loaded cars. Upon their determination being 
 certified to the Interstate Commerce Commission, said Commission 
 shall at once give notice of the standard fixed upon to all common 
 carriers, owners, or lessees engaged in interstate commerce in the 
 United States by such means as the Commission may deem proper. 
 But should said Association fail to determine a standard as above 
 provided, it shall be the duty of the Interstate Commerce Commis- 
 sion to do so, before July first, eighteen hundred and ninety-four, and 
 immediately to give notice thereof as aforesaid. And after July first, 
 eighteen hundred and ninety-five, no cars, either loaded or unloaded, 
 shall be used in interstate traffic which do not comply with the standard 
 above provided ioT.—Sec. 5, Act March 2, 1893 [27 Stat, at L., 531]. 
 
 * * " Said Commission is hereby given authority, after hearing, 
 to modify or change, and to prescribe the standard height of draw- 
 bars and to fix the time within which such modification or change 
 shall become effective and obligatory, and prior to the time so fixed it 
 shall be unlawful to use any car or vehicle in interstate or foreign 
 traffic which does not comply with the standard now fixed or the 
 standard so prescribed, and after the time so fixed it shall be unlawful 
 to use any car or vehicle in interstate or foreign traffic which does not 
 comply with the standard so prescribed by the Commission. — Sec. 3, Act 
 April 14, 1910 [36 Stat, at L., 298, 299}. 
 
 [The text of the Commission's Order prescribing 
 the height of drawbars will be found in the Appendix, 
 p. 244, post.] 
 
 2, Standard height of drawbars. 
 
 St Louis, I. M. dc S. Ry, Co. v. Taylor, :2m\]. S., 281. 
 Supreme C ourt, May 18, 1908 
 
 We thmk that it [the Act] requires that the center of the 
 drawbars of freight cars used on standard gauge railroads shall 
 be, when the cars are empty, 34J mches above the level of the 
 tops of the rails; that it permits, when a car is partly or fully 
 loaded, a variation in the height downward, in no case to exceed 
 3 inches; that it does not require that the variation shall be 
 in proportion to the load, nor that a fully loaded car shall ex- 
 haust the full 3 inches of the maximum permissible variation 
 and bring its drawbars down to the height of 31 J inches above 
 the rails. If a car, when unloaded, has its drawbars 34^ inches 
 above the rails, and, in any stage of loading, does not lower its 
 drawbars more than 3 inches, it complies with the requirements 
 
STANDARD HEIGHT OF DRAWBARS. 87 
 
 of the law. If, when unloaded, its drawbars are of greater or 
 less height than the standard prescribed by the law, or if, when 
 wholly or partially loaded, its drawbars are lowered more than 
 the maximum variation permitted, the car does not comply vvdth 
 the requirements of the law. — Moody, Justice, p. 289. 
 
 U, S. V. Atchison, T. cfc S. F. Ry. Co. [unreported]. 
 
 District Court, Fourth District of Arizona, July 17, 1908. 
 The Act also provides that it shall be unlawful for any such 
 coimnon carrier to use any freight car equipped with a drawbar 
 which, measuring perpendicularly from the level of the tops of 
 the rails to the center of such drawbar, shall be more than 
 34 J inches in height or less than 3H inches in height; it being 
 assumed in such measurement that the rails are on the same 
 level as the car equipped with such drawbar. — Sloan, D. J. 
 
 See also Southern Ry. Co. v. CrocJcett, 234 U. S., 725; Chicago, 
 M. cfe P. S. Ry. Co. V. U. S., 196 Fed., 882; St. Louis, I. M. c& 
 S. Ry. Co. V. Neal, 78 S. W., 220. 
 (a). **Shims" defined. 
 
 St. Louis, L M. & S. Ry. Co. v.' Taylor, 210 U. S., 281. 
 Supreme Court, May 18, 1908. 
 
 The evidence showed that drawbars which, as originally con- 
 structed, are of standard height, are lowered by the natural effect 
 of proper use; that, in addition to the correction of this tendency 
 by general repair, devices called shims, which are metallic wedges 
 of different thickness, are employed to raise the lowered drawbar 
 to the legal standard; and that in the caboose of this train the 
 railroad furnished a sufficient supply of these shims, which it 
 was the duty of the conductor or orakeman to use as occasion 
 demanded. — Moody, Justice, p. 294. 
 
 3. The Acts prohibit the use of a coupler the drawbar of which is 
 lower than the standard height, even though such coupler is on 
 the front end of a locomotive and is not > d after an attempt to 
 use it has been unsuccessful. 
 Chicago, M. cfc P. S. Ry. Co. v. U. S., 196 Fed., 882. 
 Circuit Court of Appeals, 9th Circuit, May 6, 1912. 
 
 It may be true that no reasonably prudent railroad employee 
 would have attempted to couple to the front end of the loco- 
 motive with knowledge of its condition, but that fact does not 
 avoid the violation of the statute. The defective drawbar 
 remained a danger and a menace, and when all is said, the fact 
 remains that its use in that condition was prohibited. [Citing 
 163 Fed., 519, and other cases.] We are referred to Wahash R. 
 Co. V. U. S., 172 Fed., 864, as authority for the proposition that 
 a locomotive engine used in interstate commerce need not neces- 
 sarily have an automatic coupler at both ends. The court in 
 that case held there was no violation of the Safety Appliance 
 Act in the use of an engine which had originally been equipped 
 with automatic couplers at the A-end and the B-end, but there- 
 after the lock-chain had been disconnected and the knuckle 
 removed from the coupler at the B-end, leaving that coupler in 
 such condition that no other car could be coupled thereto or 
 uncoupled therefrom, and where it appeared that the coupler at 
 
88 SAFETY APPLIANCE ACTS. 
 
 the A-end was the only one used at the time in question in moving 
 interstate traffic. While with all respect for that court we are 
 inclined to doubt the correctness of that ruling, we find it suffi- 
 cient for the present case to point to the difference between that 
 case and this. There the coupler had been disconnected and the 
 knuckle taken out '4n pursuance of a purpose that it should not 
 be used." In the case at bar the plaintiff in error was found 
 using a defective coupler at one end of the engine, and thereafter 
 having reversed the engine, was found using the other end for 
 the purpose of transferring oars. Nothing was shown indicative 
 of a purpose to refrain from using both ends of the locomotive 
 for coupling, and no portion of the defective coupling device was 
 removed. That device remained as it was before, a trap to the 
 unwary. — Gilbert, C. J., pp. 884-885. [Affirming the judgment of 
 the District Court for the District of Montana, and cited with 
 apparent approval by the Supreme Court in Southern Ry. Co. v. 
 Crockett, 234 U. S., 725.] 
 
 TJ. S. V. Chicago, M. c& P. S. Ry. Co. [unreported]. 
 District Court, District of Montana, May 2, 1911. 
 
 As I view the law, it is illegal for a railroad company to use 
 an engine in the condition in which this engine undoubtedly was, 
 even though the defective end was not actually emjtloyed. By 
 the law it was intended to prohibit a railroad company from using 
 a car or engine having a defective coupler only upon one end, even 
 though that coupler was so defective that a reasonably prudent 
 man would not undertake to make a coupling therewith. The law 
 was intended to protect the lives and safety of all employees, 
 whether they are reasonably prudent or not. As I view it, an 
 engine in the condition in whicn this was was a possible source of 
 great danger, in that if an emplo;^ee were standing upon the foot- 
 board and the head of the deiective coupler was so low as not to 
 engage with the coupler upon a car in proper condition, thus 
 permitting the two cars to come close together, the employee 
 
 ^ might be crushed. Or, upon the other hand, an employee of little 
 experience or caution might undertake, in case of emergency, to 
 couple the defective coupling with that of another car, and thus 
 imperil his safety or his life. In that view I have excluded the 
 testimony offered on behalf of the defendant and declined to give 
 certain requested instructions, and it becomes your duty to ffiid a 
 verdict in favor of the plaintiff in accordance with the prayer of 
 the complaint. — Dietrich, D. J. [Affirmed by the Circuit Court 
 of Appeals for the 9th Circuit in Chicago, M. <& P. S. Ry. Co. v. 
 U. S., 196 Fed., 882, ante.] 
 
 See also: 
 
 Southern Ry. Co. v. Crockett, 234 U. S., 725. 
 Supreme Court, June 22, 1914. 
 
 We deem the true intent and meaning to be that the provi- 
 sions and requirements respecting train brakes, automatic coup- 
 lers, grab irons, and the height of drawbars shall be extended to 
 all railroad vehicles used upon any railroad engaged in interstate 
 commerce, and to aU other vehicles used in connection with 
 
STANDARD HEIGHT OF DRAWBARS— HANDBRAKES. 89 
 
 them, so far as the respective devices and standards are capable 
 of being installed upon the respective vehicles. It follows that 
 by the Act of 1903 the standard height of drawbars was made 
 api)hcable to locomotive engines as well as to freight cars. And 
 so it was held by the Circuit Court of Appeals for the Ninth 
 Circuit in CJdcago, M. ch P. S. Ry. Co. v. U. S., 196 Fed., 882.— 
 Pitney, Justice, pp. 737-738. 
 
 4. If a drawbar is lower than tlie standard height, it is immaterial 
 
 whether such condition results from the sagging of the drawbar from 
 the frame or from the sagging of the entire frame. 
 
 Atchison, T. c& S. F. Ry. Co. v. U. S., 198 Fed., 637. 
 
 Circuit Court of Appeals, 7th Circuit, April 23, 1912. 
 
 In a train used in interstate traffic plaintiff in error had a 
 car whose drawbar was less than the standard height above the 
 rails. This condition was observed by the Government mspector 
 15 minutes before the train left the yard. Violation of the 
 statute is questioned on the ground that the condition resulted, 
 not from any defect in the drawbar itself or in its attachment to 
 the frame of the car, but from the breaking of a king-pm whereby 
 the frame to which the drawbar remained secm-ely attached 
 was lowered. But the statute (sec. 5) provides that '^no cars, 
 either loaded or unloaded, shall be used m interstate traffic 
 which do not comply with the standard above provided for." 
 So it is immaterial whether the lowering was caused by the sag- 
 ging of the drawbar from the frame or the sagging of the entire 
 frame; and the resulting condition of noncompliance with the 
 standard height would be as observable in the one case as in the 
 other.— ^G^er, C. J., pp. 637-638. 
 
 5. The delegation to the Interstate Commerce Commission and the 
 
 American Railway Association of authority to designate the 
 standard height of drawbars is not unconstitutional. 
 
 See Item B-l-(a), p. 10, ante. 
 
 H. HANDBRAKES. 
 
 1. Provisions of the law: 
 
 That on and after July first, nineteen hundred and eleven, it shall 
 be unlawful for any common carrier subject to the provisions of this 
 Act to haul, or permit to be hauled or used on its line any car subject 
 to the provisions of this Act not equipped with appliances provided 
 for in this Act, to wit: All cars must be equipped with secure sill 
 steps and efficient hand brakes; aU cars requiring secure ladders and 
 secure running boards shall be equipped with such ladders and run- 
 ning boards, and all cars having ladders shall also be equipped with 
 secure handholds or grab irons on their roofs at the tops of such 
 ladders : Providedy That in the loading and hauling of long commodi- 
 ties, requiring more than one car, the hand brakes may be omitted 
 on all save one of the cars while they are thus combined for such 
 purpose.— 5ec. 2, Act April 14> 1910 [36 Stat, at L., 298\. 
 
90 SAFETY APPLIANCE ACTS. 
 
 2. "Efficient," as used in the second section of the Act of 1910, defined. 
 
 JJ. S. V. Northern Pacific Ry. Co. [unreported]. 
 
 District Court, Western District of Washington, Dec. 5, 1913. 
 Another section of the Act provides each car shall be 
 equipped with an eflicient hand brake. Now, it is claimed by 
 the Government that this hand brake was not efficient. All the 
 court can tell you about what efficiency means is that it shall be 
 effective as a hand brake. If it is so out of order that it was 
 ineffective as a hand brake, the other qualifications being present 
 that I pointed out to you, it would be a violation of the law to 
 haul or use a car in that condition. If it was somewhat out of 
 order and it was still effective and efficient as a hand brake, it 
 would be no violation. * * * In considering the efficiency of 
 a hand brake, the jury will take into consideration the manner in 
 which hand brakes are generally operated and the purpose of the 
 ratchet key. The efficiency of a hand brake has reference to two 
 things: Its efficiency for the purpose of stopping a car or train, 
 or to hold the same, and its efficiency as a matter of safety to the 
 brakeman or switchman or other employee engaged in that work 
 calling for the use of the hand brake. Therefore, if you believe 
 that the ratchet key was missing, and its absence rendered that 
 hand brake incapable of being efiiciently operated in the regular 
 and usual manner and would subject an employee using the 
 same to greater danger than he would be subjected to if the 
 ratchet key were present, you should find on that issue for the 
 Government. — Cushman, D. J. 
 
 I. EXCEPTIONS TO THE APPLICATION OF THE ACTS. 
 
 1. Provisos in the Acts. 
 
 * * * Provided, That nothing in this Act contained shall apply to 
 trains composed of four-wheel cars or to trains composed of eight- 
 wheel standard logging cars where the height of such car from top of 
 rail to center of coupling does not exceed twenty-five inches, or to 
 locomotives used in hauling such trains when such cars or locomotives 
 are exclusively used for the transportation of logs. — Sec. 6, Act March 2, 
 1893 [27 Stat, at L., 631], as amended April 1, 1896 [29 Stat, at L., 85]. 
 
 * * * and the provisions and requirements hereof and of said Acts 
 relating to train brakes, automatic couplers, grab irons, and the height 
 of drawbars shall be held to apply to all trains, locom.otives, tenders, 
 cars, and similar vehicles used on any railroad engaged in interstate 
 commerce, and in the Territories and the District of Columbia, and to 
 all other locomotives, tenders, cars, and similar vehicles used in con- 
 nection therewith, excepting those trains, cars, and locomotives ex- 
 empted by the provisions of section six of said Act of March second, 
 eighteen hundred and ninety-three, as amended by the Act of April 
 first, eighteen hundred and ninety-six, or which are used upon street 
 railways.— 5'ec. 1, Act March 2, 1903 [32 Stat, at L., 943]. [But see Item C-4, 
 p. 33, ante.] 
 
 * * * All cars must be equipped with secure sill steps and efficient 
 handbrakes; all cars requiring secure ladders and secure running 
 
EXCEPTIONS. 91 
 
 boards shall be equipped with such ladders and running boards, and all 
 cars having ladders shall also be equipped with secure hand holds or 
 grab irons on their roofs at the tops of such ladders: Provided, That in 
 the loading and hauhng of long commodities, requiring more than one 
 car, the hand brakes may be omitted on all save one of the cars while 
 they are thus combined for such purpose. — Sec. 2, Act April 14, 1910 [36 
 Stat, at L., 298]. 
 
 That any common carrier subject to this Act using, hauling, or 
 permitting to be used or hauled on its line, any car subject to the 
 requirements of this Act not equipped as provided in this Act, shall 
 be liable to a penalty of one hundred dollars for each and every such 
 violation, to be recovered as provided in section six of the Act of March 
 second, eighteen hundred and ninety- three, as amended April first, 
 eighteen hundred and ninety-six: Provided, That where any car shall 
 have been properly equipped, as provided in this Act and the other Acts 
 mentioned herein, and such equipment shall have become defective 
 or insecure while such car was being used by such carrier upon its 
 line of railroad, such car may be hauled from the place where such 
 equipment was first discovered to be defective or insecure to the 
 nearest available point where such car can be repaired, without lia- 
 bility for the penalties imposed by section four of this Act or section 
 six of the Act of March second, eighteen hundred and ninety- three, as 
 amended by the Act of April first, eighteen hundred and ninety-six, if 
 such movement is necessary to make such repairs and such repairs 
 can not be made except at such repair point; and such movement or 
 hauling of such car shall be at the sole risk of the carrier, and nothing 
 in this section shall be construed to relieve such carrier from liability 
 in any remedial action for the death or injury of any railroad employee 
 caused to such employee by reason of or in connection with the move- 
 ment or hauling of such car with equipment which is defective or 
 insecure or which is not maintained in accordance with the require- 
 ments of this Act and the other Acts herein referred to; and nothing 
 in this proviso shall be construed to permit the hauling of defective 
 cars by means of chains instead of drawbars, in revenue trains or in 
 association with other cars that are commercially used, unless such 
 defective cars contain live stock or "perishable" freight. — Sec. 4, Act 
 April 14, 1910 [36 Stat, at L., 29, 
 
 (a). "Necessary," as used in the proviso in the Act of 1910, defined: 
 
 TJ. S. V. Northern Ps^ciHc Ry. Co. [unreported]. 
 
 District Court, Western District of Washington, Dec. 6, 1913. 
 Regarding the other two counts which concern missing 
 coupling and uncoupling levers at Auburn, you will determine 
 whether or not it was necessary to haul those cars on beyond 
 Auburn, in order to repair these defects, to some repair point. 
 Now, what is necessary, you are to determine as practical men. 
 It means what was reasonably necessary, operatmg a road as 
 practical men should, in view of this law. It does not mean 
 whether it would have been possible with the utmost endeavor 
 to have repaired them there, taking unlimited time; it does not 
 mean anything of that kind. * * * 
 
92 SAFETY APPLIANCE ACTS. 
 
 And by "necessary" is not meant that it was impossible to 
 repair said cars at Auburn, by sending out repair car or sending 
 men from the shops to repair the same; but if you believe that 
 the only practicable method of railroading requires' that such 
 cars when out of repair should be taken to the shops for that 
 purpose, and that it was reasonably necessary in view of the 
 practicable )perati)n of railroading to repair such cars in the 
 shops, then tne movement thereof for such purpose was not a 
 violation of the law, and you will find for the defendant on these 
 causes of action. — Cushman, D. J. 
 
 (b). "Nearest available point" as used in the proviso in the Amendment 
 of 1910, defined. 
 U. S. V. Northern PaciHc Ry. Co., [unreported]. 
 
 District Court, Western District of Washington, Dec. 6, 1913. 
 The law provides that cars, after the discovery of defect, if 
 properly equipped, the sense of it being if they are properly 
 equipped when they left the last repair point, and the discovery 
 of the detect has occurred while it is in use along the line, it 
 must be taken to the nearest available repair point. The nearest 
 available repair point means the nearest available repair point 
 for making repairs of the kind that that car needs. Of course 
 you can understand, as far as this law is concerned, an engine 
 comes within it. There could be an engine partly destroyed, 
 and there might be very few repair points where it could be 
 repaired. I state this extreme illustration to give you a means 
 of understanding what the word '^ available" means there. — 
 Oushman, D. J. 
 
 2. The Acts, as amended prior to April 14, 1910, permitted the 
 necessary movement of defective cars to the nearest point at 
 which repairs might be effected, provided they were excluded from 
 commercial use and dissociated from other cars commercially em- 
 ployed ; * 
 Southern Ry. Co, v. Snyder, 187 Fed., 492. 
 
 Circuit Court of Appeals 6th Circuit, May 3, 1911. 
 
 While a carrier ma}' move empty cars by themselves to 
 repair shops for the purpose of having them placed in condition 
 to comply with the Safety Appliance Acts, without being guilty 
 of a violation of those Acts while engaged in an honest effort 
 to meet their requirements, yet the cars in any movement for 
 the purpose of repairing them after they so become defective 
 must, in order not to be subject to the Act, be wholly excluded 
 from commercial use themselves and from other vehicles which 
 are commercially employed. [St. Louis <& S. F. R. Co. v. DeTkj 
 158 Fed., 931; TJ. S. v. Southern Pacific Co., 169 Fed., 407; 
 Chicago Junction Ry. Co. v. King, 169 Fed., 372]. — Knappen, 
 C. J., p. 497. 
 Southern Ry. Co. v. Snyder, 205 Fed., 868. 
 
 C^cuit Court of Appeals, 6th Circuit,. June 3, 1913. 
 
 In our former opinion we pointed out, in effect, that while 
 a carrier may, without violating the Safety Appliance Acts, 
 move empty cars by themselves for the purpose of having them 
 
 * But see Item B-2, p. 10, ante. 
 
EXCEPTIONS. 93 
 
 placed in condition to comply with those Acts, yet, in any 
 movement for the purpose even of repairs, after they have 
 become so defective, such cars must, in order to escape subjec- 
 tion to the Act, be wholly excluded from commercial use and 
 from connection with other vehicles commercially employed. — 
 Knappen, C. J., p. 870. 
 
 Chicago <& N. W. Ry. Co. v. U. S., 168 Fed., 236. 
 
 Circuit Court of Appeals, 8th Circuit, March 10, 1909. 
 The only practical method of railroading requires that such 
 vehicles when out of repair shall be taken to the shops; and if 
 they are wholly excluded from commercial use themselves, and 
 from other vehicles which are commercially employed, they do 
 not fall within any of the classes covered by the Safety Appliance 
 Acts. A carrier may move one or more cars by themselves to 
 repair shops for the purpose of having them placed in a condition 
 to conform to the Safety Appliance Acts without being guilty of 
 a violation of those Acts wnile thus engaged in an honest effort 
 to meet their requirements. — Amidon, D. J., p. 238. 
 
 U.-S. V. Southern Pacific Co., 169 Fed., 407. 
 
 Circuit Court of Appeals 8th Circuit, April 3, 1909. 
 
 As a corollary to the classification so made [in C. <& N. W, 
 Ry. Co. V. U. S., 168 Fed., 236] we reached and stated the con- 
 clusion that any movement of vehicles after they became defec- 
 tive, for the purpose of repairing them must, in order to escape 
 the penalties imposed by the Act, be ' 'wholly excluded from 
 commercial use themselves, and from other vehicles which are 
 commercially employed." — Adams, C. J., p. 409. 
 
 U. S. V. Rio Grande Western Ry. Co., 174 Fed., 399. 
 
 Circuit Court of Appeals, 8th Circuit, November 19, 1909. 
 Complaint is made that the court charged the jury that if 
 they believed from the evidence as. to any; particular count that 
 the defendant moved the car therein specified, that when it was 
 so moved its coupling apparatus was so defective that it would 
 not couple automatically by impact, or could not be uncoupled 
 without the necessity of a man going between the ends of the 
 cars coupled together, they should find the defendant guilty as 
 to such count unless the movement and the only movement 
 made was necessary for the purpose of repairing the defective 
 coupler. If this instruction was correct in its application to the 
 evidence upon the issues involved in the trial of any single count 
 of the petition, it must be sustained. * * * There was no 
 evidence that this car was hauled over to the shop for any other 
 purpose than to have the necessary repairs made upon it or that 
 its trip to the shop tracks was or could have been used for any 
 other purpose than to secure the making of these necessary 
 repairs. In this state of the case the charge of the court was 
 warranted by the decision and opinion of this court in Chicago c& 
 N. W. Ry. Co. V. U. S. [168 Fed., 236], and the judgment below is 
 affirmed. — Sanhorn, C. J ., p. 400. 
 
 SiegelY. New Yorlc Central cfc H. R. R. Co., 178 Fed., 873. 
 
94 SAFETY APPLIANCE ACTS. 
 
 See also: 
 
 Galveston, H. dc S, A. Ry. Co. v. U. S., 199 Fed., 891. 
 
 Circuit Court of Appeals, 5th Circuit, October 7, 1912. 
 
 Under the Act of March 2, 1903, before its amendment of 
 1910, I think the carrier, if its trails left a repair point properly 
 equipped, is not compelled upon discovery of a defect oetween 
 repair points, to hold its tram at the point of discovery until 
 the defect is remedied, in cases where it can not be remedied at 
 such point with the means at hand, but has the right to move 
 the train in its disabled condition to the nearest repair point, if 
 necessary to accomplish the repairs. 
 
 The" courts are in conflict as to whether the statute permits 
 this movement in connection with other cars being commercially 
 used. The original and amendatory statutes prescribe no sucn 
 limitation, and it does not seem to me that a movement can be 
 said for that reason alone to be inhibited as a matter of law. — 
 Gruhh, D. J. [concurring], ])p. 896-897. 
 U. S. V. Southern Pacific Co., 154 Fed., 897. 
 
 District Court, District of Oregon, April 1, 1907. 
 
 Admittedly, if a breakage occurs between stations where 
 repair shops are located, and the repair can not be made without 
 taking the car to such a place, the company can not be held liable 
 until it has had the opportunity of matdng the repair, and in that 
 event it would be justiiied in hauling the car in the train to the 
 succeeding station, where such repairs could be made. — Wolver- 
 t(m,D.J.,j>. 901. 
 U. S. V. Chicago Great Western Ry. Co., 162 Fed., 775. 
 
 District Court, Northern District of Iowa, May 6, 1908. 
 
 But if such means and appUances were not at hand to so 
 remedy the said defects, the defendant would have the right, 
 without incurring the penalty of the law, to haul the cars upon 
 which said air brakes so became defective or inoperative to the 
 nearest repair point on its line of railroad, where such defects 
 could be repaired and the cars and air brakes put in an operative 
 condition. — Reed, D. J., p. 780. 
 U. S. V. Atchison, T. & S. F. Ry. Co., 167 Fed., 696. 
 
 District Court, Northern District of Cahfornia, December 1, 1908. 
 But if it did not at such time and place have the requisite 
 means or apphances at hand to remedy such defect and put the 
 couplers and grab irons in operative condition, then it [defendant] 
 would have the right, without incurring the penalty of the law, to 
 haul such car or cars to the nearest repair point on its hne where 
 such defects could be repaired and the apphances put in operative 
 condition. — De Haven, D. J., p. 698. 
 U. S. V. Southern PaciHc Co., 167 Fed., 699. 
 
 District Court, Northern District of California, December 4, 1 908. 
 
 Should such defect be of a heavy nature only to be made at 
 
 repair stations, then the company would have the right, without 
 
 incurring the penalty of the law, to haul such car to the nearest 
 
 place where such repairs can be made. — De Haven, D. J., p. 701. 
 
EXCEPTIONS. 95 
 
 v. S. V. Atchison, T. <& S. F. Ry. Co., [unreported]. 
 
 District Court, Fourth District of Arizona, July 17, 1908. 
 I charge you further that in the case of a car which may have 
 its drawbar pulled out en route it is the duty of the common car- 
 rier to make the necessary repair at the nearest point where such 
 repair can be made. It may haul such car to such nearest point 
 and no farther, using such care and caution as may be needed to 
 insure the highest degree of safety and security while, being so 
 hauled. — Sloan, D. J. 
 U. S. V. Louisville & N. R. Co., 156 Fed., 193; V. S. v. Louisville db 
 N. R. Co., 156 Fed., 195; U. S.Y.Baltimore & 0. R. Co., D. C, 
 N. D. West Virginia, Jan. 18, 1909, Dayton, D. J. [unreported]. 
 But see: 
 Chicago, M. & St. P. Ry. Co. v. V. S., 165 Fed., 423. 
 
 Circuit Court of Appeals, 8th Circuit, November 27, 1908. 
 Our conclusion is that the hauKng by a railroad company 
 from one State to another of a car not equipped with the required 
 safety appliances, upon its own truclcs, as a part of a train of other 
 cars moving in interstate commerce, is a use of the defective car 
 in violation of the Act of Congress, though it is empty and is being 
 transported to a repair shop in the State of its destination.— 
 Hoolc, C. J.,ip. 424. 
 U. S. y. St. Louis, L M. & S. Ry. Co., 154 Fed., 516. 
 
 District Court, Western District of Tennessee, June 11, 1906. 
 On June 27 tliey [the defective cars involved] were hauled as 
 a part of this freight train, composed of about thirty cars, out of 
 the State of Tennessee into the State of Arkansas by defendant 
 railroad company. These two particular cars were way-biUed 
 to Baring Cross shops, Arkansas, near Little Rock, to be repaired. 
 * * * The fact that these two cars were being hauled to the 
 repair shops in the manner disclosed by the evidence can not 
 avail the defendant. The statute makes no such exception. — 
 McCall, D. J., pp. 517-518, 519. 
 
 (a). But it was never intended by the Acts that a defective car 
 should be removed from a repair point without repairs of statutory 
 defects being made; 
 V. S. V. Chicago Great Western Ry. Co., 162 Fed., 775. 
 
 District Court, Northern District of Iowa, May 6, 1908. 
 But if such defective or inoperative condition of the cou- 
 plers and grab irons existed at a repair point on defendant's line, 
 or at a place where such defects could have been remedied, then 
 if it hauled said car or cars from such place in such condition, 
 it would do so at its peril and be liable for the statutory penalty 
 for so hauling or using such car described in any count of the 
 petition.— i?ee(Z, D. J., pp. 779-780. 
 U. S. y. Atchison, T. c& S. F. Ry. Co., 167 Fed., 696. 
 
 District Court, Northern District of California, Dec. 1, 1908. 
 
 But if such defective or inoperative condition of the couplers 
 
 and grab irons existed at a repair point on defendant's line, or 
 
 at a place where such defects could have been remedied, then 
 
 if it hauled said car or cars from such place in such condition it 
 
96 SAFETY APPLIANCE ACTS. 
 
 would do so at its peril and be liable for the statutory penalty 
 for so hauling or using such car described in any count of the 
 petition. * * * 
 
 You are instructed that if the defendant hauled any car 
 over its line of railroad from or through any point in a defective 
 condition it is wholly immaterial that the defendant had no 
 shops, material, or facilities for repairing the defects at that 
 place if it can be shown that said car had started from a repair 
 point upon the line of defendant's railroad in the same defective 
 condition, and where such repairs could have been made had 
 the defendant exercised reasonable diligence and foresight in 
 providing such repair point with the proper material and facili- 
 ties for the making of all repairs necessary to comply with the 
 Safety Appliance Act, your verdict should be for the Govern- 
 ment as to each and every car so hauled. — De Haven , D. J., 
 p. 698. 
 
 U. S. V. Southern Pacific Co., 167 Fed., 699. 
 
 District Court, Northern District of California, Dec. 4, 1908. 
 And if a defect exists at a repair point, or at any place 
 where such defect could have been repau-ed, and the company 
 moves the car while in the defective condition, it does so at its 
 peril, and it becomes then subject to the penalty of the law. — 
 ue Haven, D. J., p. 701. 
 
 U. S. V. Baltimore <& 0. R. Co. [unreported]. 
 
 District Court, Northern District of West Virginia, Jan. 18, 1909. 
 Now that you may understand that more fully let me say 
 to you that it is entirely reasonable that a railroad company 
 shoidd be required to maintain repair shops or repair material 
 and make inspections and repairs at places within reasonable 
 distances of each other; that in establishing such repair points 
 the company has the right, in the ordinary operation of their 
 trains between those repair points, when a train is in operation 
 and defects arise, reasonably, to carry the car, the appliances on 
 which are broken or defective, to the first repair point, but they 
 do not have the right, having carried it to that point, to take it 
 beyond that point without discovering and without making the 
 necessary repairs to those safety appliances attached to that car, 
 and if they do carry it beyond that point they are liable to the 
 penalty provided for by this law. — Dayton, D. J. 
 
 U. S. V. Baltimore cfe 0. R. Co. [unreported]. 
 
 District Court, Northern District of Ohio, June 15, 1909. 
 
 Now, I think that if a railroad company hauls a car out of an 
 
 inspection and repair yard when a reasonable inspection would 
 
 ascertain the defect, why, the railroad company is liable under 
 
 this modified view of the meaning of the statute. — Cochran, D. J. 
 
 U. S. V. Southern Pacific Co. [unreported]. 
 
 District Court, District of Nevada, November 24, 1909. 
 
 But if such a defective or inoperative condition of the cou- 
 plers existed at a repair point on defendant's line, or at a place 
 where such defects could have been remedied, then if it hauled 
 such car or cars from such place in such condition, it would do so 
 at its peril and be liable for the statutory penalty for so hauling 
 or using such car. — Farrington, D. J. 
 
EXCEPTIONS. 97 
 
 Snyder v. Southern Ry. Co. [unreported]. 
 
 Circuit Court, Eastern District of Tennessee, January 21, 1910. 
 
 However, under the proof in this case it appeared that the 
 car in question had arrived at the Coster yards of the defendant 
 in a defective condition several days before the accident ; that it 
 had not been repaired at the Coster shops where it coiild have 
 been repaired, but had been hauled away from this repair point 
 enroute to the repair shops at Lenoir City, several miles away, 
 for the purpose of being there repaired. 
 
 I think it clear, under the authorities, that when the car was 
 put in use even to be hauled to another repair shop after it had 
 been for some time at a repair shop where it could have been 
 repaired it was being hauled in this defective condition in viola- 
 tion of the Safety Appliance Act. [ TJ. S. v. Chicago, M. <& St. P. 
 Ry. Co., 149 Fed., 486; U. S. v. St. Louis, I. M. cfc S. Ry. Co., 
 154 Fed., 516; TJ. S. v. Lehigh Valley R. Co., 162 Fed., 410-412; 
 JJ. S. V. Philadelphia & R. Ry. Co., 162 Fed., 405-409; Chicago, 
 M. & St. P. Ry. Co. V. V. S., 165 Fed., 423; U. S. v. Atchison, 
 T. & S. F. Ry. Co., 167 Fed., 696; TJ. S. v. Southern Pacific Co., 
 167 Fed., 699; TJ. S. v. Southern Pacific Co., D. C, D. Nevada, 
 Nov. 24, 1909, Farrington, D. J. (unreported)]. 
 
 Having undertaken to haul the car away from a repair point, 
 
 it obviously remained, I think, within the provisions of the Act, 
 
 even although the effort was afterwards made to detach the car 
 
 and return it to the KnoxviUe yard for repairs. — Sanford, D. J. 
 
 TJ. S, V. St. Louis, I. M. dc S. Ry, Co., 154 Fed., 516. 
 
 — (i). Nor that a carrier subject to the Acts should excuse a failure to 
 repair a statutory defect at the point of its discovery by showing 
 that the car involved was also defective in other respects which 
 could have been repaired only at the point to which the car was 
 moved. 
 
 TJ. S. V. Southern Pacific Co., 154 Fed., 897. 
 
 District Court, District of Oregon, April 1, 1907. 
 
 A combining of other car defects with the defects com- 
 plained of can afford no excuse for delaying the repairs requisite 
 to a compliance with the law; and for this reason alone the 
 answers are whoUy insufficient. — Wolverton, D. J., p. 899. 
 
 3. HELD : The proviso in the Amendment of 1910 is declaratory of the ju- 
 dicial interpretation placed upon the Acts as previously amended. 
 Galveston, H. & S. A. Ry. Co. v. TJ. S., 199 Fed., 891. 
 
 Circuit Court of Appeals, 5th Circuit, October 7, 1912. 
 
 By incorporating the provision just quoted, [proviso in the 
 Act of 1910], and declaring the same as a supplement to the Act 
 of 1893, we may safely infer that it was intended by Congress 
 to give the proper construction to the Act of 1893. — Pardee, 
 C. J., p. 896. 
 
 While the language of section 2 of the Act of March 2, 1903, 
 might permit of a construction that would impose an absolute 
 duty on the carrier, and absolute liability for the penalty pro- 
 vided for operating its train when not equipped as rec[uired, 
 and while some courts have so construed it, I agree with the 
 
 50611—15 7 
 
98 SAFETY APPLIANCE ACTS. 
 
 majority opinion that this would not be a reasonable interpre- 
 tation of the original statute, and that the amendatory Act of 
 April 14, 1910, was intended to be declaratory only of the court's 
 interpretation, to meet the decisions mentioned. — Gruhh, D. J. 
 [concurring], p. 896. 
 But see TJ. S. v. Colorado Midland Ry. Co., 202 Fed., 732. 
 4. A defendant carrier must bring itself strictly within the terms 
 of the proviso in order to avail itself of the immunity thereby 
 afforded. See Part V, Item B-2-(a), p. 212, post. 
 6. In order to bring itself within the terms of the Proviso in the Act 
 of April 14, 1910, a carrier seeking to justify the movement of a 
 defective car to a particular point: 
 — (a). Must establish the necessity of the movement alleged to have 
 been made for the purpose of repair. 
 U. S. V. Chesapealce & 0. Ry. Co., 213 Fed., 748. 
 Circuit Court of Appeals, 4th Circuit, February 27, 1914. 
 
 However, in this instance, it is admitted by the railroad 
 that it was not necessary to haul the car in q|uestion to the 
 shops or to any particular point in order to repair the defective 
 eqmpment. It could have been repaired at the Seventeenth 
 Street yard, where the defect was discovered, or it could have 
 been repaired at the Broad Street yard ; and no excuse is shown 
 for not making the repairs while the car was kept at either of 
 these places. In other words, we think the statute contem- 
 plates that if when the defective equipment is discovered it can 
 be repaired at the point where the discovery is first made, then 
 it is incumbent upon the railroad company to repair the same 
 as soon as the services of a repair man can be had, but if the 
 defect is of such character that it can not be repaired at the 
 point where discovered, such car may be hauled to the nearest 
 available point for that purpose, and not used in the meantime 
 on its lines between stations or in its yards. 
 
 The failure on the part of a railroad company, as in this in- 
 stance, to repair defective equipment, as to the existence of 
 which the company had had knowledge for the space of 12 days, 
 during which time such car had been moved from one place to 
 another, from time to time, on its tracks, indicates that it was 
 unmindful of the duty imposed upon it by the statute. — Pritch- 
 ard, C. J., p. 752. 
 Galveston, H. cfc S. A. Ry. Co. v. TJ. S., 199 Fed., 891, 
 
 Circuit Court of Appeals, 5th Circuit, October 7, 1912. 
 
 The courts are in conflict as to whether the statute permits 
 this movement in connection with other cars being commer- 
 cially used. The original and amendatory statutes prescribe 
 no such limitations, and it does not seem to me that a move- 
 ment can be said for that reason alone to be inhibited as a 
 matter of law. The question in each case depends upon whether 
 there is shown to exist a reasonable necessity for moving the 
 train to accomplish the repairs, and this is, ordinarily, properly 
 determinable by a jury. — Gruhb, D. J. [concurring], pp. 896, 897. 
 U, S. V. Trinity <& B. V. Ry. Co., 211 Fed., 448. 
 
 Circuit Court of Appeals, 5th Circuit, December 1, 1913. 
 
 Unless the evidence of the defendant tends to show, in addi- 
 
EXCEPTIONS. 99 
 
 tion to the facts above recited, to wit (that the car was properly 
 equipped at starting on the journey, and became defective 
 while being used on the line of railroad of defendant), that the 
 movement of the car in the train was necessary to repair the 
 defect, and that the repair could not have been made except 
 at such repair pomt, then the defendant has not brought itself 
 under the proviso, and there was no question of disputed facts 
 to submit to the jury. — Call, D. J., p. 452. 
 
 Chicago, B. & Q. Ry Co. v. Z7. S., 211 Fed., 12. 
 
 circuit Court of Appeals, 8th Circuit, November 28, 1913. 
 The trial court submitted to the jury the question whether 
 the car was defective when it started from the Twelfth Street 
 yard, or became defective in the course of its journey from that 
 yard to the Murray yard, charging them that if the defect arose 
 while the car was in transit, the company would not be liable. 
 The jury accepted the testimony of the Government inspectors, 
 and found that the car was defective before it started upon 
 the movement complained of. It is quite clear, therefore, 
 that the company is not protected by the proviso upon which 
 it relies. That is so for two reasons: First, the defect was of 
 a character that could have been supplied in the Twelfth Street 
 yard. It consisted of a small clevis which had fallen out of 
 the coupling appliance. This could have been supplied as well 
 in one yard as the other, and a car can be moved for purposes 
 of repair under the proviso only when such a movement^ is 
 necessary; that is, when the repair is of a character which 
 requires the taking of the car to some particular point. Second, 
 the movement which is permitted must be for the purpose of 
 maldng repairs, and the evidence showed that the movement 
 complained of was not of that character. — Amidon, D. J., p. 15. 
 
 U. S. V. Northern Pacific Ry. Co., [unreported]. 
 
 District Court, Western District of Washington, December 5, 1913. 
 This same law provides that if a car is properly equipped— 
 the court interprets that to mean, and instructs you — that is, 
 if it is properly equipped when it leaves a terminal where it is 
 the duty to inspect and repair cars, that if it is properly equipped 
 when it leaves such point, and then becomes defective out on 
 the line when it is being used, that it then may be removed to 
 the nearest available repair point, providing the movement of 
 the car is necessary to repair it, and providing that it could not 
 be repaired except at such repair point. — Cushman, D. J. 
 
 U. S. V. Northern Pacific Ry. Co., [unreported]. 
 
 District Court, Western District of Wasliington, December 6,1913. 
 The court instructs you that the same statute prohibiting 
 the movement of defective equipment as above explained also 
 provides that where any car shall have been properly equipped 
 with automatic coupling devices, and suflScient handholds and 
 hand brakes, and such car shall become defective while being 
 used, it may be hauled from the place where such equipment 
 was first discovered to be defective or insecure to the nearest 
 available point where the car can be repaired, without incurring 
 liability for the penalties imposed, provided such movement is 
 
100 SAFETY APPLIANCE ACTS. 
 
 necessary to make the repairs and such repairs could not be 
 made except at such repair point. — Cushman, D, J. 
 But see Siegel v. New York Central & H. R. R. Co., 178 Fed., 873. 
 
 — (b). And must show that the defect to be repaired was of such a 
 nature that it could not have been repaired at the point of its 
 discovery. 
 Chicago, B. & Q. Ry. Co. v. U. S., 211 Fed., 12. 
 
 Circuit Court of Appeals, 8th Circuit, November 28, 1913. 
 It is quite clear, therefore, that the companjr is not pro- 
 tected by the proviso upon which it relies. That is so for two 
 reasons: First, the defect was of a character that could have 
 been suppUed in the Twelfth Street yard. It consisted of a 
 small clevis which had falleu out of the coupling appliance. 
 This could have been suppUed as well in one yard as the other, 
 and a car can be moved for purposes of repair under the proviso 
 only when such a movement is necessary; that is, when the 
 repair is of a character which requires the taking of the car to 
 some particular point. Second, the movement which is per- 
 mitted must be for the purpose of making repairs, and the evi- 
 dence showed that the movement complained of was not of that 
 character. — Amidon, D. J., p. 15. 
 
 — (c). The necessity of a movement for the purpose of repair is gen- 
 erally a question for the jury. 
 Galveston, H. cfc S. A. Ry. Co. v. U. S., 199 Fed., 891. 
 
 Circuit Court of Appeals, 5th Circuit, October 7,1912. 
 
 The question in each case depends upon whether there is 
 shown to exist a reasonable necessity for moving the train to 
 accomplish the repairs, and this is, ordinarLl}^, properly deter- 
 minable by a jury. It is true the facts in tliis case are undis- 
 puted, but an inference is required to be drawn from them, viz. 
 whether they constituted the reasonable necessity demanded by 
 the statute, or whether the carrier should have sent a mechanic 
 from Sanderson to Longfellow to repair the air pump, or sent the 
 disabled engine to Sanderson for that purpose, to be returned to 
 Longfellow to take in the train with air power, or sent a relief 
 engine to Sanderson for that purpose, instead of hauling the train 
 to Sanderson with the disabled engine by hand brakes. — Grubby 
 D. J. [concurring], p. 897. 
 
 6. The proviso in the Act of 1910 does not permit the hauling of defect- 
 ive cars by means of chains instead of drawbars, in revenue trains 
 or in association with other cars commercially used, unless such 
 defective cars contain live stock or perishable freight. 
 TJ. S. V. Northern Paciiic Ry. Co., [unreported]. 
 
 District Court, Western District of vYashington, Dec. 6, 1913. 
 The question, then, in this case, if you find from the evi- 
 dence, if you believe from the evidence, that those two cars 
 mentioned in the first two causes of action were hauled from 
 Auburn; that when they left Auburn they were using chains 
 instead of drawbars, and that there was room on the tracks there 
 at Auburn to switch them out, then there is no excuse for their 
 being used by the defendant company, unless being used to 
 transport either live stock or perishables. * * * 
 
EXCEPTIONS. ••'; \ '■; , \1 ''/ 101 
 
 But it is also provided in said statute that the said defective 
 equipment shall not be hauled by means of chains instead of 
 drawbars, in revenue trains or in association with other cars that 
 are commercially used, unless such defective cars contain live 
 stock or perishable freight. * * * 
 
 If the defendant on May 20, 1912, hauled Northern Pacific 
 cars 55653 and 36182 from Auburn in a revenue train by means 
 of chains instead of drawbars, it can not be excused thereby 
 because it could not have made the repairs at Auburn unless, as 
 I have instructed you, the cars were bemg used to haul live stock 
 or perishables, and providing there were means at Auburn for 
 cutting these cars out of the train and leaving them there on 
 storage tracks or switches. — Cushman, D. J. 
 See also Z7. S. v. AtcUson, T. cfc S. F. By. Co., 212 Fed., 1000. 
 
 7. The proviso in the Act of 1910 has no retrospective application to 
 a violation of the Acts as previously amended. 
 
 U. S. V. Colorado Midland Ry. Co., 202 Fed., 732. 
 
 Circuit Court of Appeals, 8th Circuit, December 21, 1912. 
 
 It is an indisputable canon of construction that unless the 
 intention of the legislative body that a law should operate ret- 
 rospectively is clear, it should not be given that effect. 
 
 There is no provision or term in this Act which expresses any 
 intention of the Congress to release offenders who prior to ite 
 passage had found and hauled cars with defective or insecure 
 equipment in the manner described in the proviso of section 4 
 from the liabilities for penalties which they had admittedly 
 incurred by such acts under the earlier Safety Appliance Acts. 
 On the other hand, the proviso of section 4 and the other pro- 
 visions of the Act of 1910 relating to this subject use expressions 
 which either customarily or naturally refer to the future. The 
 proviso reads that a car whose proper equipment has become 
 defective or insecure ''may be hauled" to the nearest available 
 repair point without liability for the penalties imposed by the 
 earlier Safety Appliance Acts and by that Act. The Act speaks 
 at the time of its passage. This provision means that after that 
 time, after the passage of the Act, a car may be hauled without 
 liability, and under tlie rule that the expression of one excludes 
 other like times or conditions this provision excludes the thought 
 that at any previous time a car could have been so hauled with- 
 out liability for the penalties. There is nothing in the Act to 
 indicate that it was the purpose of Congress to release offenders 
 from liabilities already incurred. Its purpose appears to have 
 been to permit common carriers to avoid, possible liabilities in 
 the future, and upon a consideration of its purpose, its terms, 
 and its provisions the conclusion is that the proviso of section 4 
 of the Act of April 14, 1910, is inapplicable to violations of the 
 Safety Appliance Acts prior to its passage, and that the Act did 
 not release offenders who had hauled cars with defective or inse- 
 cure equipment in the manner described in the proviso of section 
 4 from liabilities for penalties incurred by such previous viola- 
 tions of the earlier Safetv Appliance Acts. — Sanborn, C. J., pp. 
 734-735. 
 But see Galveston, E. ck S. A. Ry. Co. v. Z7. S., 199 Fed., 891. 
 
Part II. THE HOURS OF SERVICE ACT. 
 
 A. NATURE AND PURPOSE OF THE ACT, 106 ; 
 
 B. CONSTRUCTION AND INTERPRETATION OF THE ACT, 108 
 
 C. SCOPE OF THE ACT, 120; 
 
 D. EXCEPTIONS TO THE APPLICATION OF THE ACT, 169; 
 
 E. CARRIERS' HOURS OF SERVICE REPORTS, 173. 
 
 A. NATURE AND PURPOSE OF THE ACT. 
 
 1. The Act is— 
 
 (a) Civil, 106; 
 
 (b) Remedial, 106; 
 
 2. Purpose of tlie Act, 106. 
 
 B. CONSTRUCTION AND INTERPRETATION OF THE ACT. 
 
 1. Tlie Act is constitutional, 108; 
 
 (a) The classification of operators in the Act is not unconstitutional, 109; 
 
 (b) The Act is not invalid on account of ambiguity, 110; 
 
 (c) The Order of the Interstate Commerce Commission, requiring carriers 
 subject to the Act to report all instances of excess service occurring on their 
 respective lines, is not invalid as being repugnant to the Fourth and Filth 
 Amendments to the Constitution of the United States, 111. 
 
 2. The liability of carriers subject to the Act, in cases to which the Act applies, 
 
 is absolute. 111 : 
 
 (a) And neither the lack of actual contemporaneous knowledge on the part of 
 a carrier that the Act is being violated, nor its previous instructions to the 
 contrary, is a defense to a prosecution under the Act, 113 ; 
 
 (b) The exercise of discretion on the part of an employee, in continuing on 
 duty in excess of 16 hours, under the assumption that he can reach a terminal 
 within the statutory period, does not supersede the mandate of the law, 114. 
 
 (c) The word "permit," as used in the Act, means 'a failure to prohibit by 
 one who has the power and authority to do so," 116, 
 
 (d) Carriers subject to the Act are chargeable with knowledge of the acts of 
 their officers and agents, 116; 
 
 (i) And the expression 'all its officers and agents," as used in the Act, is not 
 restricted to the general officers or agents of a carrier, 116. 
 
 3. The Act, being remedial, should be liberally construed, 116; 
 
 4. Proceedings on behalf of the Government for the recovery of the penalties pro- 
 
 vided by the Act are civil actions, 116; 
 6. The Act is analogous to the Safety Appliance Acts, 116; 
 
 (a) But is distinguishable from the Employers' Liability Acts, 116; 
 
 (b) And from the 28-Hour Law, 116 ; 
 
 (c) Violations of the Hours of Service Act: HELD more serious than those 
 of the Safety Appliance Act and of the 28-Hour Law, 117. 
 
 6. A substantial violation of the Act should never be satisfied by a merely nominal 
 penalty, 118; 
 
 (a) The Act prescribes a separate penalty for each and every employee who 
 remains on duty in excess of the permitted periods, 118; 
 
 (b) But the amounts of such penalties are determinable by the courts, 119. 
 102 
 
CONSTRUCTION AND INTERPRETATION— SCOPE. 103 
 
 7. Fatigue is as truly a physical cause of railroad accidents as broken rails and 
 open switches, 119. 
 
 8. The inability of carriers to compel employees to rest during their intermissions 
 from actual service is a remote contingency, 120. 
 
 9. A carrier can not escape liability to a passenger for laying off a train and con- 
 sequentially delaying his arrival at his destination, on the theory that such a 
 course may have been necessary in order to avoid a violation of the Act, if the 
 delay responsible for the situation was attributable to its own negligence, 120. 
 
 C. SCOPE OF THE ACT. 
 
 1. Carriers subject to the Act, 120: 
 
 (a) "Common carrier" defined, 121; 
 
 (b) "Railroad," as used in the Act, defined, 121; 
 
 2. The receiver of a railroad company, as such, is a common carrier within the 
 
 purview of the Act, 121 ; 
 
 3. Employees subject to the Act, 122. 
 
 (a) A fireman or other employee subject to the Act, while engaged in watching 
 an engine is "connected with the movement' ' of a train within the purview of 
 the Act, 131 ; 
 
 (b) " Other employee, ' ' as used in the proviso in section 2 of the Act, defined, 123. 
 
 4. Limitations of service, 124. 
 
 5. "On duty," and "off duty," as used in the Act, defined, 124: 
 
 (a) Employees while deadheading on freight or passenger trains, if relieved 
 from all responsibility in connection with the movement of such trains, are 
 not on duty within the purview of the Act, 126 ; 
 
 (b) The service of an employee subject to the Act, preliminary or supplemen- 
 tal to his regular duties, is to be computed in his period on duty, 126; 
 
 (c) The application of the Act to employees otherwise within its terms is not 
 to be evaded by a commingling of their duties with respect to interstate and 
 intrastate operations, 128; 
 
 (d) An employee subject to the Act may not engage in any railroad service, 
 howsoever unconnected with the movement of any train, if the total time 
 devoted to such service and to his regular duties exceeds the periods of 
 service permitted by the statute, 130; 
 
 (i) A fireman or other employee subject to the Act, while engaged in watching 
 an engine, is on duty within the purview of the Act, 131 ; 
 
 (a) And it is immaterial whether such service as engine watchman 
 precedes, intervenes, or succeeds the service as fireman or as other 
 employee so subject to the Act, 136; 
 
 (b) Duties of an engine watchman defined, 137: 
 
 (e) The words "consecutive" and "continuous," as used in the Act, are not 
 restricted to unbroken intervals of time, 137; 
 
 (i) A respite from duty so brief, or granted under such circumstances, as to 
 preclude the rest and recuperation contemplated by the Act, even though 
 for a definite and predetermined interval, does not break the continuity of 
 service, 138; 
 
 (ii) And a respite from duty, even for a reasonably extended interval, does 
 not break the continuity of service, unless the duration of such interval 
 is definitely anticipated and predetermined at its inception, 140; 
 
 (ill) Such a release from service, in order to suspend the operation of the 
 Act, must be granted in good faith, at a time and place and under circum- 
 stances that permit of rest and recuperation ; must be for a definite and sub- 
 stantial interval of time ; and must be predetermined at the inception of such 
 period, 142. 
 
104 HOURS OF SERVICE ACT. 
 
 6. The service of operators or other employees handling train orders in continu- 
 ously operated offices is limited by the Act to 9 hours in a 24-hour period; 
 that of such employees in offices operated only during the daytime, to 13 hours 
 out of 24; except in cases of emergency, when the service of either class of 
 employees may be extended 4 hours on not exceeding 3 days in any week, 143 : 
 (a) "Places," as used in the Act, defined, 143. 
 
 7. The proviso in section 2 of the Act applies to all offices in which train orders are 
 handled affecting the movement of interstate traffic, irrespective of the number 
 or the frequency of such orders, 144: 
 
 (a) The term "orders," as used in the Act, comprehends every communication 
 of information or instruction relative to the movement of any train, 146. 
 
 8. The classification of an office as "continuously operated" or "operated only 
 during the daytime" is determined by the length of time it is kept open* and not 
 by the character of the service therein performed ; provided only that such serv- 
 ice comprehends the handling of train orders as occasion may require, 147: 
 
 (a) An office is continuously operated, within the purview of the Act, if it is 
 kept open for such a number of hours in the aggregate as necessarily to include 
 a material or substantial portion of the night, 147; 
 
 (b) Trifling interruptions do not break the continuity of operation of an office 
 otherwise continuously operated, 149. 
 
 9. "Period," as used in the Act, defined, 160. 
 
 (a) An operator employed for 6 hours, and then, after an interval of 3, for an 
 additional period of 3 hours, is not on duty for a longer period than 9 hours 
 in a 24-hour period, 161. 
 
 (b) But if such an employee remains on duty in a continuously operated office 
 for more than 9 hours in a 24-hour period, it is immaterial that such service 
 may not be continuous, 162. 
 
 10. Towermen and switch tenders who use the telephone for the communication 
 of information or instructions relative to the movement of trains, are subject 
 to the proviso in section 2 of the Act, 153. 
 
 11. The service of an operator at a local station is as clearly within the purpose of 
 the Act as is that of a similar employee in a train-dispatcher's office, 168. 
 
 D. EXCEPTIONS TO THE APPLICATION OF THE ACT. 
 
 1. The proviso in section 2, 169 : 
 
 (a) "Emergency," as used in the Act, defined, 169. 
 
 (b) "Week," as used in the Act, defined, 159. 
 
 2. Provisos in section 3, 160: 
 
 (a) The first proviso in section 3 of the Act is applicable to the service of opera- 
 tors and other employees handling train orders no less than to that of em- 
 ployees in train service, 160. 
 
 (i) And where an operator remained on duty for a period of 7 hours in excess 
 of his normally permitted service, on account of a wreck resulting from 
 an unavoidable cause: HELD, that such service was not limited to the 4 
 additional hours permitted in cases of emergency, 160. 
 
 (b) "Casualty," defined, 160; 
 
 (c) "Unavoidable accident," defined, 160; 
 
 (d) "Act of God," defined, 162; 
 
 (i) An act of God will not excuse a carrier from the liability imposed upon 
 it by the law unless it is shown that the results thereof could not have 
 been prevented by any foresight, pains, or care reasonably to have been 
 expected in the premises, 163; 
 
 (e) It is the duty of carriers subject to the Act to provide appropriate stopping 
 places along their lines where employees may rest, 163 ; 
 
EXCEPTIONS— HOURS OF SERVICE REPORTS. 105 
 
 (f) "Terminal," as used in the Act, defined, 163; 
 
 (g) The occurrence, after a crew has left a terminal, of a casualty, an unavoid- 
 able accident or an act of God, resulting in the detention of the crew on duty 
 in excess of 16 hours, suspends the operation of the statute for the given 
 trip, 165. 
 
 3. The excess service of employees subject to the Act is not to be excused by 
 the occurrence of conditions ordinarily to be expected in the operation of 
 trains, 168: 
 
 (a) Broken rails, 169; 
 
 (b) Cleaning fires, 169; 
 
 (c) Congestion of traffic, 169; 
 
 (d) Delay in starting trains, 169 ; 
 
 (e) Engine failures due to mechanical defects, 169; 
 
 (f) Frost on rails and heavy tonnage, necessitating doubling, 169; 
 
 (g) Hot boxes, 169; 
 
 (h) Injectors failing on account of insufficiency or quality of water, 169; 
 
 (i) Intermissions for meals, 170; 
 
 (j) Meeting or passing trains, 170; 
 
 (k) Poor coal, 170; 
 
 (1) PuUed-out or broken drawbars, 170; 
 
 (m) Running for or taking water, 170; 
 
 (n) Unnecessary hauling of defective cars by means of chains instead of draw- 
 bars, 170; 
 
 (o) Waiting for a helper engine, 171 ; 
 
 (p) Waiting for orders, 171; 
 
 (q) Wrecks, if preventable by the exercise of diligence and foresight, 171; 
 
 (r) But excessive heat in certain circumstances: HELD to be an excuse 
 within the purview of the Act, 171 ; 
 
 (s) And, while the sudden illness of an operator will not in all cases justify 
 the retention of another employee on duty in excess of the permitted periods, 
 such illness, coupled with the inability of the carrier to procure a relief oper- 
 ator, may, in certain circumstances, constitute an emergency within the 
 purview of the Act, 172; 
 
 (t) But economical reasons alone can never justify a violation of the Act, 172. 
 E. CARRIERS' HOURS OF SERVICE REPORTS. 
 
 1. The Interstate Commerce Commission is authorized by section 20 of the Act to 
 regulate commerce to require all carriers subject to the Hours of Service Act to 
 report all instances of excess service occurring on their respective lines. 173; 
 (a) And a carrier is not excused from the necessity of filing such reports by the 
 
 failure of the Commission to have included with its Order of June 28, 1911, as 
 served upon such carrier, the forms therein described, 176. 
 
 2. It is not within the province of a court to impose upon a carrier, for its violation 
 of the Commission's Order requiring reports, a smaller penalty than that pre- 
 scribed by section 20 of the Act to regulate commerce — $100 per day for each and 
 every day such carrier shall have continued in default, 176. 
 
 3. The Orders of the Commission requiring reports of excess service are not in 
 contravention of the Fourth and Fifth Amendments to the Constitution of the 
 United States, 111. 
 
106 HOURS OF SERVICE ACT. 
 
 A. NATURE AND PURPOSE OF THE ACT. 
 
 1. The Act is — 
 
 — (a). Civil: See Item B-4, p. 116, post 
 
 — (b). Remedial: 
 
 U. S. V. Kansas City Southern By. Co., 189 Fed., 471; U. S. v. 
 Chicago, M. & P. S. By. Co., 197 Fed., 624; U. S. v. Kansas 
 City Southern By. Co., 202 Fed., 828; U. S. v. Great Northern By. 
 Co., 206 Fed., 838; U. S. v. Missouri Pacific By. Co., 206 Fed., 
 847; U. S. V. Southern Pacific Co., 209 Fed., 562; U. S. v. Atlantic 
 Coast Line B. Co., 211 Fed., 897; San Pedro, L. A. c& S. L. B. 
 Co. V. U. S., 213 Fed., 326; Osborne's Adm'r. v. Cincinnati, 
 N. 0. & T. P. By. Co., 164 S. W., 818; V. S. v. Grand Bapids 
 db I. By Co., D. C, W. D. Michigan, Dec. 31, 1912, Sessions, 
 D. J. [unreported]; U. S. v. Missouri Pacific By. Co., D. C, 
 W. D. Missouri, May 8, 1913, Van Valkenburgh, D. J. [unreport- 
 ed]; U. S. V. Delaware, L. cfc W. B. Co., D. C, W. D. New York, 
 May 22, 1913, Hazel, D. J. [unreported]; U. S. v. Southern 
 By. Co., D. C, W. D. South Carolina, Oct. 30, 1913, Smith, 
 D. J. [unreported]. 
 
 2. Purpose of the Act. 
 
 U. S. V. Atlantic Coast Line B. Co., 211 Fed., 897. 
 
 Circuit Court of Appeals, 4th Circuit, February 3, 1914. 
 
 Obviously that purpose was to promote the safety of 
 employees and the traveling pubhc by prohibiting hours of 
 service which presumably result in impaired efficiency for 
 discharging their important duties. — Knapp, C. J., p. 900. 
 U. S. V. Kansas City Southern By. Co., 202 Fed., 828. 
 
 Circuit Court of Appeals, 8th Circuit, January 24, 1913. 
 This law was passed to meet a condition of danger incidental 
 to the working of railroad employees so excessively as to impair 
 their strength and alertness. — Van Valkenburgh, D. J., p. 832. 
 San Pedro, L. A. & S. L. B. Co. v. U. S., 213 Fed., 326. 
 Circuit Court of Appeals, 8th Circuit, March 27, 1914. 
 
 In tliis legislation Congress had in view the many serious 
 railroad accidents caused by the unfitness for duty of men 
 engaged in or having to do with the movements of trains, who 
 had endured excessive periods of continuous, unbroken service 
 without intervals for rest. The remedy adopted was by Hmiting 
 the maximum of the hours of service and the minimum for the 
 intervals between. It was thought futile to attempt to control 
 the employees in their use of their off time; therefore, as being 
 more practical and efl&cient, the command was laid upon and 
 confined to those who gave them employment in their regular 
 occupations. — HooJc, C. J., p. 328. 
 U. S. V. Chicago, M. & P. S. By. Co., 197 Fed., 624. 
 
 District Court, Eastern District of Washington, April 10, 1912. 
 
 The purpose of the statute, as indicated by its title, is to 
 
 promote tlie safety of employees and travelers upon railroads by 
 
NATURE AND PURPOSE. 107 
 
 limiting the hours of labor of those who are in control of dangerous 
 agencies, lest by excessive periods of duty tliey become fatigued 
 and indifferent and cause accidents leading to injuries and de- 
 struction of life. [New York v. Erie R. Co., 198 N. Y., 369.]— 
 Rudkin, D. J., p. 627. 
 V. S. V. Yazoo & M. V. R. Co., 203 Fed., 159. 
 
 District Court, Western District of Tennessee, Feb. 22, 1913. 
 The purpose of this legislation is the protection of the lives 
 of employees of railroad companies and also the lives and prop- 
 erty entrusted to the railroads as common carriers. It recognizes 
 that there is a limit to human endurance, and that hours of rest 
 and recreation are needful to the health and efficiency of men 
 engaged in the hazardous work of railroading. The benefit it is 
 intended to confer is to better enable employees to serve their 
 employers, and to promote the needs of commerce, and also to 
 promote the safety of travelers upon railroads. The limiting 
 of hours of labor of those who are in control of dangerous agen- 
 cies, it is believed, will relieve the employees of overfatigue and 
 resulting indifference, and thus avert accidents which lead to 
 injuries and destruction of life and property. Such purpose 
 could scarcely be said to be of less importance than making of 
 annual reports, showing in detail the amount of capital stock 
 issued, the amounts paid therefor, the dividends paid, the surplus 
 funds, etc., unless we have unhappily fallen upon times when 
 it is of greater moment to enact and enforce laws, the purpose of 
 which is to safeguard the financial interests of the public and 
 the carrier, than it is to enact and enforce laws the purpose of 
 which is to protect the lives and limbs of human beings. To this 
 latter doctrine I can not subscribe, and am therefore unable to 
 agree with the contention of the defendant. The provision of 
 the Act under consideration indicates that it was the purpose of 
 Congress to prohibit common carriers from subordinating the 
 welfare of their employees or passengers aboard their trains, 
 either in health, life, or limb, to the interest of earnings or divi- 
 dend sheets.— i/cOaZZ, D. J., pp. 161-162. 
 U. S. y. Missouri, K. & T. Ry, Co., 208 Fed., 957.' 
 
 District Court, District of Kansas, January 13, 1913. 
 
 In the passage of the Act in question the Congress had in 
 view the safety of both those traveling on and those engaged in 
 operating interstate railway trains, to be accomplished by afford- 
 ing protection against the uncertain working of the minds of its 
 employees overtaxed by long-continued service, loss of sleep, 
 etc.— Pollock, D. J., pp. 958-959. 
 St. Louis, I. M. cfe S. Ry. Co. v. McWhirter, 140 S. W., 672. 
 
 Court of Appeals of Kentucky, November 17, 1911. 
 
 In conclusion, we are moved to say that the salutary object 
 designed by the enactment of the statute, su^ra, would, in our 
 opinion, be defeated if we should hold its provisions inapplicable 
 to a case like the one at bar. Its aim is the protection of the 
 lives of employees of railroad companies, and also the lives and 
 property intrusted to the railroads as common carriers. It rec- 
 
108 HOURS OF SERVICE ACT. 
 
 o^nizes that there is a limit to human endurance, and that hours 
 01 rest and recreation, as well as the use of good machinery and 
 appliances, are neediul to the health and safety of men engaged 
 in the hazardous work of railroading, and that the benefit it is 
 intended to confer will better enable them to serve their employ- 
 ers and promote the ends of commerce. The application of the 
 provisions ot the statute may sometimes bear harshly upon an 
 offending railroad company, but on the whole their just enforce- 
 ment, in all proper cases, is bound to be promotive of the public 
 welfare. — Settle, J., p. 679. 
 V. S. V. Ilinneapolis, St P. cf? S. S. M. Ry. Co. [unreported]. 
 District Court, District of North Dakota, January 21, 1913. 
 The statute has behind it the purpose to reduce the appalling 
 record of death and injury caused by American railroads. The 
 yearly statistics on this subject leave no room to doubt the im- 
 perative necessity for the law, and furnish ample justification for 
 its rigid enforcement. — Amidon, D. J. 
 
 B. CONSTRUCTION AND INTERPRETATION OF THE ACT. 
 
 1. The Act is constitntional : 
 
 Baltimore cfc 0. R. Co. v. 7. C. C, 221 U. S., 612. 
 Supreme Court, May 29, 1911. 
 
 And thus, many employees who have to do with the move- 
 ment of trains in interstate transportation are, by virtue of 
 practical necessity, also employed m intrastate transportation. 
 
 This consideration, however, lends no support to the con- 
 tention that the statute is invalid. For there can not be denied 
 to Congress the effective exercise of its constitutional authority. 
 By virtue of its power to regulate interstate and foreign com- 
 merce, Congress may enact laws for the safeguarding of the 
 persons and property that are transported in that commerce and 
 of those who are employed in transporting them. [Johnson v. 
 SoutJiern Paciiic Company, 196 U. S., 1; Adair v. U. S., 208 
 U. S., 177 r St. Louis, I. M. & S. Ry. Co. v. Taylor, 210 U. S., 
 281 ; Chicago, B. <& Q. Ry. Co: v. V. S., 220 U. S., 559.1 The 
 fundamental question here is whether a restriction upon the 
 hours of labor of employees who are connected with the move- 
 ment of trains in interstate transportation is comprehended 
 within this sphere of authorized legislation. This question 
 admits of but one answer. The length of hours of service has 
 direct relation to the efficiency of the human agencies upon 
 which protection to life and property necessarily depends. This 
 has been repeatedly emphasized in official reports of the Inter- 
 state Commerce Commission, and is a matter so plain as to 
 require no elaboration. In its power suitably to provide for the 
 safety of employees and travelers. Congress was not limited to 
 the enactment of laws relating to mechanical appfiances, but it 
 was also competent to consider, and to endeavor to reduce, the 
 dangers incident to the strain of excessive hours of duty on 
 the part of engineers, conductors, train dispatchers, telegraphers. 
 
CONSTRUCTION AND INTERPRETATION. 109 
 
 and other persons embraced within the class defined by the Act. 
 And in imposing restrictions having reasonable relation to this 
 end there is no interference with liberty of contract as guaranteed 
 by the Constitution. [Ohicago, B. & Q. Ry. Co. v. McGuire, 
 219 U. S., 549.] * * * 
 
 It is said that the words ''except in case of emergency'' 
 make the application of the Act so uncertain as to destroy its 
 validity. But this argument in substance denies to the legis- 
 lature the power to use a generic description, and if pressed to 
 its logical conclusion would practically nullify the legislative 
 authority by making it essential that legislation should define 
 without the use of generic terms, all the specific instances to be 
 brought within it. In a legal sense there is no . uncertainty. 
 Congress, by an appropriate description of an exceptional class, 
 has estabhshed a standard with respect to which cases that 
 arise must be adjudged. 
 
 Nor does the contention gather strength from the broad 
 scope of the proviso in section 3, for if the latter, in limiting the 
 effect of the entire Act, could be said to include everything that 
 may be embraced within the term ''emergency" as used in sec- 
 tion 2, this would be merely a dupHcation which would not 
 invalidate the Act. — Hughes, Justice, pp. 618-619, 620. 
 U. S. V. Illinois Central R. Co., 180 Fed., 630; U. S. v. Kansas 
 aty Southern Ry, Co., 189 Fed., 471; U. S. v. St. Louis S. W. 
 Ry. Co. of Texas, 189 Fed., 954; U. S. v. Ramsey, 197 Fed., 144; 
 TJ. S. V. Southern Pacific Co., 209 Fed., 562; State v. Chicago, 
 M. & St. P. Ry. Co., 117 N. W., 686; St. Louis, 7. M. & S. Ry. 
 Co. V. McWhirter, 140 S. W., 672; TJ. S. v. Cleveland, C. C. cSj 
 St. L. Ry. Co., D. C, S. D. Ohio, Dec. 12, 1911, Hollister, D. J. 
 [unreported]. 
 
 (a). The classification of operators in the Act is not nnconstitutional : 
 
 U. S. V. St. Louis S. W. Ry. Co. of Texas, 189 Fed., 954. 
 
 District Court, Western District of Texas, August 16, 1911. 
 But it is insisted by counsel for the defendant that the classi- 
 fication of the telegraph operators is arbitrary, rendering the 
 Act void, since it discriminates between operators engaged 
 in stations that are "contiuously operated night and day" and 
 those employed in stations that are ^' continuously oj)erated only 
 during the daj^time." Just why the classification is unconsti- 
 tutional it is difficult for the court to conceive. And it is still 
 more strange that the Supreme Court in construing the Act in 
 its entirety, should have overlooked what counsel appear to 
 regard as so vital an objection to its constitutionaHty. The pro- 
 viso, referring to operators, train dispatchers, etc., was consid- 
 ered by the court, and there is no intimation in the opinion that 
 the classification is either unjust or arbitrary. Where Congress 
 has power to legislate in reference to the hours of labor of em- 
 ployees, no hard and fast rule of classification may for all cases 
 be prescribed. Thus it was said by the court in Magoun v. III. 
 ' T. <& S. Banlc, 170 U. S., 296: "There is therefore no precise 
 application of the rule of reasonableness of classification, and 
 
110 HOURS OF SERVICE ACT. 
 
 the rule of equality permits many practical inequalities. And 
 necessarily so. In a classification for governmental purposes 
 there can not be any exact exclusion or inclusion of persons and 
 things." 
 
 The objection of counsel that the classification in the Act 
 provided is unreasonable and arbitrary, and therefore void, is 
 untenable. — Maxey, D. J., p. 961. 
 
 (b) . The Act is not invalid on account of ambiguity : 
 
 V. S. V. St. Louis S. W. Ry. Co. of Texas, 189 Fed., 954. 
 
 District Court, Western District of Texas, August 16, 1911. 
 
 It is also urged by counsel for defendant that there exists in 
 the provisions of the statute, respecting periods of time, such 
 uncertainty and ambiguity as, under recognized rules for the 
 construction of penal statutes, render it void or partially inop- 
 erative. In support of this contention it is said by counsel: 
 "The last clause of the first paragraph of the Act reads: 'And the 
 term employees as used in this Act shaU be held to mean persons 
 actually engaged in or connected with the movement of any 
 train.' The second paragraph of the Act makes it unlawful for 
 a carrier to require or permit 'any employee subject to this Act 
 to remain on duty for a longer period than 16 hours consecu- 
 tively.' The contention is that an operator, train dispatcher, or 
 other employee, who assists in receiving, transmitting, or deliver- 
 ing orders pertaining to train movements is a person 'actually 
 engaged in or connected with the movement of a train,' and as 
 such is an employee within the scope of the second paragraph of 
 the Act." 
 
 And it is further said by counsel, using substantially their 
 own language: That the effect of the proviso contained in the 
 second paragraph, restricting the employment of telegraph oper- 
 ators to 9 and 13 hours, "is to import an inconsistency and 
 ambiguity into the meaning of the statute, and to make it diffi- 
 cult, if not impossible, to state with certainty which provision 
 of the statute is applicable to the case of operators and train 
 dispatchers." 
 
 To the position assumed by counsel it may be replied: (1) 
 The hours of service Act is not, strictly speaking, a penal statute, 
 requiring the appficaton of the rules of strict construction, and 
 (2) a reasonable view of the Act removes the difiiculty in ascer- 
 taining the clause applicable to operators and dispatchers in 
 contradistinction to the clause which embraces other employees. 
 * * * It wiU be observed that the first part of the section 
 refers to employees generally, subject to the Act, and renders it 
 unlawful for a carrier to require or permit any employee to be or 
 remain on duty for a longer period tnan 16 consecutive hours, etc. 
 The proviso, however, excepts operators and train dispatchers 
 from the general language thus employed and provides tor them 
 a special rule. For reasons deemed wise by the Congress it was 
 thought that telegraph operators and train dispatchers should 
 have shorter hours for work and longer intervals of rest; and 
 hence, the provision, directly applied to them, that their work 
 hours should be limited to 9 and 13, respectively, accordingly as 
 
CONSTRUCTION AND INTERPRETATION. HI 
 
 thev might be employed in stations continuously operated night 
 anci day or in stations operated only during the daytime. Is there 
 any uncertainty or ambiguity in the language of the Act? It is 
 thought by the court that the langauge is too plain to be misun- 
 stood. The obscurity suggested by counsel is rather imaginary 
 than real. The proviso of section 2 relates solely to the operator, 
 train dispatcher, or other employee ''who * * * reports, 
 transmits, receives, or delivei*s orders ])ertaimng to or affecting 
 train movements," while the first part of the section embraces afl 
 other employees subject to the Act. — Maxey, D, /., pp. 961-962, 
 963. 
 
 (c). The Order of the Interstate Commerce Commission, requiring 
 carriers subject to the Act to report all instances of excess service 
 occurring on their respective lines, is not invalid as being repug- 
 nant to the Fourth and Fifth Amendments to the Constitution 
 of the United States. 
 Baltimore cfe 0. R. Co. v. /. C. C, 221 U. S., 612. 
 Supreme Court, May 29, 1911. 
 
 There is the final objection that to compel the disclosure by 
 these reports of violations of the law is contrary to the fourth 
 and fifth amendments of the Constitution of the United States. 
 
 The order of the Commission is suitably specific and reason- 
 able, and there is not the faintest semblance of an unreasonable 
 search and seizure. The fourth amendment has no application. 
 
 Nor can the corporation plead a privilege against self- 
 crimination under the fifth amendment [Hale v. Henkel, 201 
 U. S., 74; Hammond Packing Company v. Arkansas, 212 U. S., 
 348; Wilson v. U. S.j 221 U. S., 361.] With respect to its officers, 
 it would be sufficient to say that the privilege guaranteed to 
 them by this amendment is a personal one which can not be 
 asserted on their behalf by the corporation. But the trans- 
 actions to which the required reports relate are corporate trans- 
 actions subject to the regulating power of Congress. And, with 
 regard to the keeping of suitable records of corporate administra- 
 tion, and the making of reports of corporate action, where these 
 are ordered by the Commission under the authority of Congress, 
 the officers of the corporation, by virtue of the assumption of their 
 duties as such, are bound by the corporate obligation and can 
 not claim a personal privilege in hostility to the requirement. — 
 Hughes, Justice, pp. 622-623. 
 
 2. The liability of carriers subject to the Act, in cases to which the 
 Act applies, is absolute : 
 
 U. S. V. Kansas City Southern By. Co., 202 Fed., 828. 
 
 Circuit Court of Appeals, 8th Circuit, January 24, 1913. 
 The Act under consideration does not employ the words 
 "knowingly" and "willfully." The carrier is made liable if it 
 requires or permits any employee to be or remain on duty in vio- 
 lation of stated provisions. This case then faUs within that class 
 where purposely doing a thing prohibited by statute may amount 
 to an offense, although the act does not involve turpitude or moral 
 wrong. [Armour Packing Co. v. U. S., 153 Fed., 1; Id. v. Id., 
 
112 HOURS OF SERVICE ACT. 
 
 209 U. S., 56; Chicago, St P., M. & 0. By. Co. v. U. 8., 162 
 Fed., 835.] By the terms of the proviso the carrier is excused 
 "where the delay is the result of a cause not known * * * at 
 the time said employee left a terminal, and which could not have 
 been foreseen." Not merely which was not foreseen, but which 
 could not have been foreseen. The phrase "by the exercise of 
 due diligence and foresight'' is not present. Counsel argue that 
 by leaving out this phrase Congress mtended to limit the liability 
 of the carrier; that it meant to imply that what was not actually 
 foreknown could not, in contemplation of this law, have been 
 foreseen. We can not assent to this interpretation. Clearly 
 Congress did not intend to relieve the carrier from responsibility 
 in guarding against delays in a matter deemed to be of such im- 
 portance. By this Act it sought to prevent railroad employees 
 from working consecutively longer than the period prescribed, 
 as completely and effectively as could be accomplished by leg- 
 islation. — Van Valkenburgh, D. J., p. 833. 
 
 U. 8. V. Oregon-W. R. cfc N. Co., 213 Fed., 688. 
 
 District Court, Eastern District of Washington, April 23, 1914. 
 It is now well settled that the Safety Appliance Act and 
 kindred statutes impose positive and absolute duties on carriers 
 the nonperformance of which is not excused by the exercise of 
 reasonable diligence or due care on their part, and the Hours of 
 Service Act admits of no other rational construction. [8t. Louis, 
 I. M. cfe 8. By. Co. V. Taylor, 210 U. S., 281; Chicago, B. cfc Q. 
 By. Co. V. TJ. 8., 220 U. S., 559; Delh v. 8t. Louis c& 8. F. B. 
 Co,, 220 U. S., b^{).]—Budkin, D. J., p. 690. 
 
 V. 8. V. Delaware, L. cfc W. B. Co. [unreported]. 
 
 District Court, Western District of New York, May 22, 1913. 
 Now, this statute absolutely provides that the emploj^ees 
 of railroad companies, having charge of the movements of trains, 
 shall not perform their duty more than 16 consecutive hours, 
 unless conditions arise which exculpate or excuse the defendant, 
 such as I have read. * * * It is wholly immaterial that the 
 employees, themselves, may be perfectly willing to perform 
 their duties in excess of the 16 hours. The statute prescribed, 
 absolutely, that there shall be no performance of duty beyond 
 that period, for the reasons stated before; so the willingness of 
 the employee to work longer, or the receipt by him of compensa- 
 tion for working beyond the time, is wholly immaterial. * * * 
 I call your attention to another rule of law, and that is that it 
 need not be shown by the Government that these were willful or 
 intentional delays; and the theory that the defendant has inten- 
 tionally done, or omitted to do, something that resulted in the 
 delay, is of no importance. It is not enough that the defendant 
 has given evidence that the delay was caused by the wreck, or 
 the blowing out of the cylinder head, or some other cause which 
 interfered with the trains going in a westerly direction, but it 
 must be shown — and on that the defendant has the burden of 
 proof — that the cause of the delay could not have been avoided 
 or foreseen by tlie exercise of proper care and diligence. — ■ 
 Hazel, D. J. 
 
CONSTKUCTION AND INTERPRETATION. 113 
 
 *St Louis, I. M. db S. By. Co. v. McWUrter, 140 S. W., 672. 
 Court of Appeals of Kentucky, November 17, 1911. 
 
 Recurring to the appellant's violation of the provisions of the 
 statute prohibiting it from requiring its employees to remain on 
 duty longer than 16 consecutive hours, we fuid that the language 
 of the provision in question is mandatory, and that the duty it 
 imposes is a definite, absolute duty. Its nonperformance may 
 not, therefore, be excused by a showing on the part of the rail- 
 road company that it used ordinary care or reasonable diUgence 
 to perform it, but was unable to do so. * * * 
 
 The requirements of the statute with respect to the safety 
 appliances to be used on appellant's trains are no more imperative 
 or mandatory than is the statutory restriction here involved upon 
 its right to suffer its employees to engage in its service more than 
 16 consecutive hours. The violation of the statute in either case 
 invites the penalty prescribed, and the offender will not be 
 excused upon a showing of reasonable effort or diligence in 
 attempting to comply with the statutory requirements. — 
 Settle, J., p. 678. 
 
 See also TJ. S. v. Chicago, M. db P. S. Ry. Co., 195 Fed., 783; U. S. v. 
 Yazoo & M. V. R. Co., 203 Fed., 159. 
 
 — (a). And neither the lack of actual contemporaneous knowledge on tho 
 part of a carrier that the Act is being violated, nor its previous 
 instructions to the contrary, is a defense to a prosecution under the Act : 
 V. S. V. Oregon-W. R, & N. Co., 213 Fed., 688. 
 
 District Court, Eastern District of Washington, April 23, 1914. 
 
 From this stipulation it appears * * * that before 
 the employee Longabaugh had performed any excessive hours 
 of service ne was instructed by his superior officer not to work 
 in excess of 9 hours in any 24-hour period, either as agent or 
 operator, or in both capacities, and that he remained on duty 
 for a longer period than 9 successive hours in violation of sucn 
 instructions and without the actual knowledge of his superior 
 officers. The sole question presented for decision, therefore, is: 
 Did the instructions to the employee not to violate the law, or 
 want of knowledge of a violation of the law on the part of his 
 superior officers, constitute a defense ? 
 
 It is now well settled that the Safety-Appliance Act and 
 kindred statutes impose positive and absolute duties on carriers 
 the nonperformance of which is not excused by the exercise of 
 reasonable diligence or due care on their part, and the Hours-of- 
 Service Act admits of no other rational construction. [St. LouiSf 
 
 * It is to be noted that the judgment of the Circuit Court, affirmed by the Court of 
 Appeals of Kentucky, in this proceeding, was thereafter reversed by the Supreme 
 Court of the United States, in St. Louis, I. M. & S. Ry. Co. v. McWhirter, 229 IJ. S., 
 265. The basis of the reversal, however, appears to have been the failure of the plain- 
 tiff to have established a causal connection between the excess service of deceased and 
 the accident resulting in his death, together with the erroneous interpretation of the 
 Appellate Court that, by operation of law, the carrier was an insurer of the safety 
 of all its employees while working beyond the statutory time. It would seem, there- 
 fore, that the characterization of the statutory duty of carriers under the Act is unaf- 
 fected by the order of reversal. 
 
 50611—15 8 
 
114 HOUHS OF SERVICE ACT. 
 
 7. M. & S. By. Go. v. Taylor, 210 U. S., 281; Chicago, B. <& Q, 
 By. Co. Y. U. S., 220 U. S., 559; Delk v. St. Louis & S. F. B. 
 Co., 220 U. S., 580.] 
 
 It is urged that the words ^'require or permit" imply con- 
 sent or knowledge on the part of the employer, and this is per- 
 haps theii' common significance; but the word ''permit'' also 
 means a failure to prohibit by one who has the power and 
 authority to do so, and in my opinion the term is here used in 
 the latter sense. 
 
 In U. S. V. San Francisco Bridge Co. [88 Fed., 891], cited 
 by the defendant, section 2 of the act under consideration 
 expressly provided: ''That any officer or agent of the Govern- 
 ment of the United States or of the District of Columbia, or any 
 contractor or subcontractor whose duty it shall be to employ, 
 direct, or control any laborer or mechanic employed upon any 
 of the public works of the United States or of the District of 
 Columbia, who shall intentionally violate any provisions of this 
 act, shall be guilty of a misdemeanor.'' 
 
 The criminal intent was there made a part of the offense by 
 express legislative enactment, and the word "permit" was of 
 necessity given the meaning here contended for by the defend- 
 ant. But the Act now under consideration expressly provides 
 in section 3 that "in all prosecutions under this Act the common 
 carrier shall be deemed to have had knowledge of all acts of all 
 its officers and agents," and this provision eliminates all ques- 
 tions of knowledge or criminal intent. 
 
 Nor can the expression, "all its officers and agents," be 
 limited to general officers and agents, as claimed by the defend- 
 ant. The knowledge of such general officers or agents is imputed 
 to the company by the common law, and it is very apparent that 
 the statute in question is not merely declaratory of the common 
 law. [Citing St Louis, L M. <& S. By. Co. v. Taylor, 210 U. S., 
 281] * * * 
 
 For these reasons I am of opinion that the knowledge of the 
 agent Longabaugh was the knowledge of the company and that 
 the instructions given by his superior officer not to work exces- 
 sive hours, or a want oi knowledge on the part of his superior 
 officers that he did in fact work excessive houi*s is no defense. — 
 RudJcin, D. J., pp. 689-690, 691. 
 
 (b). The exercise of discretion on the part of an employee, in continuing 
 on duty in excess of 16 hours, under the assumption that he can 
 reach a terminal within the statutory period, does not supersede 
 the mandate of the law : 
 U. S. V. Kansas City Southern By. Co., 202 Fed., 828. 
 
 Circuit Court oi Appeals, 8th Circuit, January 24, 1913. 
 The train dispatcher, throughout the trip, at least as far as 
 Bimch, was fully aware of the progress this train was making 
 and what trouble it was in. The conductor and crew were sub- 
 ject to his control. In travehng from SaUisaw to Bunch, a 
 distance of 19 miles, 3 hours and 10 minutes had been consumed. 
 At the latter station, by lightening his train a little more than 
 one-half, the conductor, acting presumably, or at least con- 
 
CONSTRUCTION AND INTERPRETATION. US 
 
 structively, under the orders of the train dispatcher, assumed 
 that he could reach Stilwell — 14 miles away — in less than an 
 hour. The condition of engine and flues was then weU known. 
 The court below thought this was a reasonable exercise of dis- 
 cretion, but there is no provision that such discretion can super- 
 sede the mandate of the law. Economical reasons alone will not 
 suffice. — Van VallcenburgTi, D. J., p. 835. 
 
 (c). The word "permit," as used in the Act, means a * 'failure to pro- 
 hibit by one who has the power and authority to do so:" 
 
 U. S. V. Oregon- W. R. <& N. Co,, 213 Fed., 688. 
 
 District Court, Eastera District of Washington, April 23, 1914, 
 It is urged that the words ''require or permit imply coBr 
 sent or knowledge on the part of the employer, and this is per- 
 haps their common significance; but the word ''permit" also 
 means a failure to prohibit by one who has the power and author- 
 ity to do so, and in my opinion the term is here used in the latter 
 sense. — Rudkin, D. J., p. 690. 
 
 (d) . Carriers subject to the Act are chargeable with knowledge of the 
 acts of their officers and agents. 
 
 * * * In all prosecutions under this Act the common caxxier 
 shall be deemed to have had knowledge of all acts of all its oficezs 
 and agents: * * *.—Sec. S, Act March 4, 1907 [34 StaL at L., 1415, 1416], 
 
 — (i). And the expression "all its officers and agents," as used in the 
 Act, is not restricted to the general officers or agents of a carrier, 
 U. S. V. Oregon-W. R. <& N. Co., 213 Fed., 688. 
 
 District Court, Eastern District of Washington, April 23, 1914, 
 Nor can the expression, "all its officers and agents," b© 
 limited to general officers and agents, as claimed by the defend- 
 ant. The knowledge of such general officers or agents is imputed 
 to the company by the common law, and it is very apparent that 
 the statute in question is not merely declaratory of the commoa 
 law. [Citing St. Louis, L M. cfc S. Ry. Co. v. Taylor, 210 U. S., 
 281].— i?u(?H7i, D. J., p. 690. 
 But see: 
 
 It will be noted that the penalties for violation of 
 this Act are against the *' common carriers, or any officer 
 or agent thereof, requiring or permitting any employee 
 to go, be, or remam on duty " in violation of the law. 
 It is clear that the officers and agents of carriers who 
 are liable to the penalties provided in the Act are those 
 who have official direction or control of the employees ; 
 and that the penalties do not attach to the employees 
 who, subject to such supervision or control, perform the 
 service prohibited. — Adm. Ruling No. 287-j. 
 
 3, The Act, being remedial, should be liberally construed. 
 JJ. S. y. Kansas City Southern Ry. Co., 202 Fed., 828. 
 
 Circuit Court of Appeals, 8th Circuit, January 24, 1913. 
 The law was passed to meet a condition of danger inci- 
 dental to the working of railroad employees so excessively as to 
 impair their strength and alertness. It is highly remedial, and 
 
116 HOURS OF SERVICE ACT. 
 
 the public, no less than the employees themselves, is vitally inter- 
 ested in its enforcement. For this reason, although penal in the 
 aspect of a penalty provided for its violation, the law should be 
 liberally construed m order that its purposes may be effected. 
 [U. S. V. Kansas City Southern Ry. Co., 189 Fed., 471; U. S, v. 
 St. Louis S. W. Ry. Co. of Texas, 189 Fed., 954.]— Van ValJcen- 
 hurgh, D. J., p. 832. 
 U. S. V. Kansas City Southern Ry. Co., 189 Fed., 471; San Pedro, 
 L. A. (& S. L. R. Co. V. U. S., 213 Fed., 326; U. S. v. Missouri 
 Pacific Ry. Co., D. C, W. D. Missouri, May 8, 1913, Van Valken- 
 burgh, D. J. [unrepprted]. 
 
 4. Proceedings on behalf of the Government for the recovery of the 
 
 penalties provided by the Act are civil actions. 
 
 U. S. V. Kansas City Southern Ry. Co., 202 Fed., 828; U. S. v^ 
 Houston B. ck T. Ry. Co., 205 Fed., 344; V. S. v. Atlantic Coast 
 Line R. Co., 211 Fed., 897; TJ. S. v. Missouri Pacific Ry. Co., 
 D. C, W. D. Missouri, May 8, 1913, Van Valkenburgh, D. J. 
 [unreported]; TJ. S. v. Northern Pacific Ry. Co., D. C, W. D. 
 Washington, Feb. 13, 1914, Cushman, D. J. [unreported]. See 
 also Missoun, K. & T. Ry. Co. of Texas v. [7. .S^., 231, U. S., 112; 
 TJ. S. V. St. Louis S. W. Ry. Co. of Texas, 189 Fed.. 954; TJ. S. v. 
 Oregon-W. R. <& N. Co., 213 Fed., 688. 
 
 5. The Act is analogous to the Safety Appliance Acts : 
 
 TJ. S. V. Kansas City Southern Ry. Co., 202 Fed., 828. 
 See also TJ. S. v. St. Louis S. W. Ry. Co. of Texas, 189 Fed., 954. 
 
 — (a). But is distinguishable from the Employers' Liability Acts: 
 Baltimore & 0. R. Co. v. /. C. C, 221 U. S., 612. 
 Supreme Court, May 29, 1911. 
 
 The statute, therefore, in its scope, is materially different 
 from the act of June 11, 1906, chapter 3073, 34 Stat., 232, which 
 was before this court in the Em'ployer's Liability Cases, 207 U. S., 
 463. There, while the carriers described were those engaged in 
 the commerce subject to the regulating power of Congress, it 
 appeared that if a carrier was so engaged the act governed its 
 relation to every employee although the employment of the lat- 
 ter might have nothing whatever to do with interstate com- 
 merce. In the present statute, the limiting words govern the 
 employees as well as the carriers. — Hughes, Justice, pp. 617-618. 
 But see StaU v. Chicago, M. cfc St. P. Ry. Co., 117 N. W., 686. 
 — (b). And from the 28 -Hour Law. 
 
 TJ. S. V. Kansas City Southern Ry. Co., 202 Fed., 828. 
 
 Circuit Court of Appeals, 8th Circuit, January 24, 1913. 
 
 The trial court, in sustaining defendant's motion for a 
 directed verdict, indicated the view that the railway com- 
 pany was held to the exercise of ordinary care in anticipating 
 causes of delay that might interfere with observance of this 
 law. This also is the position of defendant in error, and we 
 are asked to apply the rule of construction adopted with respect 
 to the 28-hour law [34 Stat. L., 607], which was enacted to 
 prevent cruelty to animals by long confinement without rest 
 
GONSTRUCTION AND INTERPRETATION. 117 
 
 while in transit by railroad. It is there provided that the 
 carrier shall not confine domestic animals in cars for a longer 
 period than 28 hours, without unloading them for rest, water, 
 and feeding, unless prevented by causes 'Vhich can not be 
 anticipated or avoided by the exercise of due diUgence and 
 foresight.'' The carrier is liable for a penalty only when it 
 ''knowingly and willfully" fails to comply with the provision 
 of the law. This court has held that the words ''knowingly and 
 willfully'' are designed to describe the attitude of a carrier, 
 which, having a free will or choice, either intentionally disregards 
 the statute or is plainly indifferent to its requirements. [;S'^. 
 Louis cfc S. F. R. Go. v. U. S., 169 Fed., 69; St. Joseph Stock 
 Yards Co. v. U. S., 187 Fed., 104.] At all times the carrier 
 has been held to the exercise of due dihgence and foresight. 
 The degree of such dihgence, foresight, and care required 
 depends largely upon the object aimed at and the situation 
 presented; and whether the defendant has discharged the full 
 duty laid upon it is to be determined from the facts and circum- 
 stances in each case. 
 
 The Act under consideration does not employ the words 
 ''knowingly" and "willfully." The carrier is made liable if it re- 
 quires or permits any employee to be or remain on duty in viola- 
 tion of stated provisions. This case then falls within that class 
 where purposely doing a thing prohibited by statute may amount 
 to an offense, although the act does not involve turpitude or 
 moral wrong. [Armour Packing Co. v. V. S., 153 Fed., 1; Id. 
 V. Id., 209 U. S., 56; Chicago, St. P., M. <& 0. By. Co. v. U. 
 S., 162 Fed., 835.]— Van ValkenhurgJi, D. J., pp. 832-833. 
 
 -(c). Violations of the Honrs of Service Act: HELD more serious than 
 
 those of the Safety Appliance Act and of the 28-Hour Law. 
 Z7. S. V. Minneapolis, St. P. c& S, S. M. Ry. Co. [imreported]. 
 District Court, District of North Dakota, January 21, 1913. 
 The defendant in each of these actions is charged with 
 violating the Act of March 4, 1907 [34 Stat. L., 1415], limiting 
 the hours of continuous employment of men engaged in the 
 railway service. Their counsel first caU my attention to the 
 difference between the penal clause of this Act and the penal 
 clause of the Safety Appliance Act and the 28-hour law in 
 regard to live stock. In the latter statutes a minimum fine of 
 $100 is fixed, whereas no minimum limitation is prescribed by 
 the statute here involved ; and for this reason, counsel says. Con- 
 gress has indicated that the first-mentioned statute is less 
 serious than the others, and its violation might properly be pun- 
 ished by a merel;^ nominal fine. I can attach no significance to 
 the difference which has been pointed out. It would be impos- 
 sible for any rational mind to find a rational foundation for tha 
 differences in the penal clauses of our federal criminal laws. For 
 example, a clerk who embezzles postal fimds may be punished 
 with a nominal fine, but a clerk who embezzles the funds of a 
 national bank can not be given a less punishment than five years 
 in the penitentiary. Such contrasts as this show how impossible 
 it is to attach significance to variations in penal clauses. That 
 
118 HOURS OF SERVICE ACT. 
 
 is a subject to which Congress has never yet given any compre- 
 hensive consideration. Courts must therefore look at the sub- 
 ject matter of laws, to ascertain whether public welfare is seri- 
 ously or only slightly involved in their violation. 
 
 Adopting that course, I must regard all substantial viola- 
 tions of the statute Umiting the period of continuous employ- 
 ment of men engaged in the railroad service as serious, much 
 more serious than either of the other statutes referred to. The 
 violation of the 28-hour law concerns only live stock; that of 
 the Safety Appliance Act will, as a rule, only affect a single 
 employee; whereas a violation of the statute here involved may 
 cause injury not only to the traveling public, but to large groups 
 of employees. The statute has behind it the purpose to reduce 
 the appalling record of death and injury caused by American 
 railroads. The yearly statistics on this subject leave no room 
 to doubt the imperative necessity for the law, and furnish ample 
 justification for its rigid enforcement. — Amidon, D. J. 
 
 6. A substantial violation of the Act should never be satisfied by a 
 merely nominal penalty : 
 U, S. V. Cleveland, C, C. & St. L. Ry. Co. [unreported]. 
 
 District Court, Southern District of Ohio, December 12, 1 911. 
 If there had been any flagrant violation of the law or any 
 willful intention not to keep within its terms, then it would be 
 a proper case to inflict possibly the maximum — at any rate a 
 severe penalty. — Hollister, D. J. 
 17. S. y. Minneapolis, St. P. cfe S. S. M. Ry. Co. [unreported]. 
 District Court, District of North Dakota, January 21, 1913. 
 No truth of science, however, is better established than that 
 fatigue is not simply a matter of muscles, but that it involves 
 nerves and brain as well, and extends to all the faculties of the 
 mind itself. It produces physiological changes which deaden 
 the will and impair the sense of sight and of hearing. It is as 
 truly a physical cause of accident as are open switches and broken 
 rails. 
 
 Such being the fact, a substantial violation of the statute 
 here involved can never justify a merely nominal fine. It 
 involves human Hfe — the safety not only of large numbers of 
 employees, but of the general traveling pubhc. — Amidon, D. J* 
 
 (a). The Act prescribes a separate penalty for each and every employee 
 who remains on duty in excess of the permitted periods : 
 Missouri, K. & T. Ry. Co. of Texas v. U. S., 231 U. S., 112. 
 Supreme Court, November 10, 1913. 
 
 The main question is whether, when several persons thus 
 are kept beyond the proper time by reason of the same delay of 
 a train, a separate penalty is incurred for each or only one for 
 aU. The Circuit Court of Appeals decided for the Government 
 without discussion. 
 
 The petitioner cites many cases m favor of the proposition 
 that generally, when one act has several consequences that the 
 law seeks to prevent, the liabiHty is attached to the act, and is 
 but one. It argues that the delay of the train was such an act 
 and that the principle, which is a very old one, applies. [Balti- 
 
CONSTRUCTION AND INTERPRETATION. 119 
 
 more <& 0. S. W. R. Co. v. U.S., 220 U. S., 94.] But unless the 
 statute requires a different view, to call the delay of the train 
 the act that produced the wrong, is to beg the question. [Mem- 
 pJhis cfe C. R. Co. V. Reeves, 10 Wall., 176; Denny v. New York 
 Central cfc E. R. R. Co., 13 Gray, 481.] The statute was not 
 violated by the delay. That may have made keeping the men 
 overtime more likely, but was not in itself wrongful conduct 
 quoad Jioc. The wrongful act was keeping an employee at work 
 overtime, and that act was distinct as to each employee so kept. 
 Without stopping to consider whether this argument would oe 
 met by the proviso declaring a " delay '^ in certain cases not to be 
 within the statute, it is enough to observe that there is nothing 
 to hinder making each consequence a separate cause of action or 
 offense, if by its proper construction the law does so [Flemister 
 V. U. 8., 207 U. S., 372]; so that the real question is simply 
 what the statute means. The statute makes the carrier who 
 permits ''any employee" to remain on duty in violation of its 
 terms liable to a penalty ''for each and every violation.'* The 
 implication of these words can not be made much plainer by 
 argument. But it may be observed, as was said by the Govern- 
 ment, that as toward the public every overworked man presents 
 a distinct danger, and as toward the employees each case of 
 course is distinct. [ U. 8. v. 8t. Louis 8. W. Ry. Co, of Texas^ 
 184 Fed., 28; People Y. 8pencer, 201 N. Y., 105].— Holmes, Justice, 
 pp. 118-119. [Affirming the judgment of the Circuit Court of 
 Appeals for the Fifth Circuit and of the District Court for the 
 Eastern District of Texas (both unreported).] 
 
 — (b). But the amounts of such penalties are determinable by the courts. 
 
 Missouri, K. cfc T. Ry. Co. of Texas v. Z7. 8., 231 U. S., 112. 
 Supreme Court, November 10, 1913. 
 
 It is argued that the amount of the penalty was for the 
 jury, the proceeding being a civil suit. But the penalty is a 
 deterrent not compensation. The amount is not measured by 
 the harm to the employees, but by the fault of the carrier, and 
 being punitive, rightly was determined by the judge. [Z7. 8, v. 
 Atlantic Coast Line R. Co., 173 Fed., 764; Atchison, T. <& 8. F, 
 Ry. Co.Y. U. 8., 178 Fed., 12.]— Holmes, Justice, pp. 119-120. 
 [Affirming the judgment of the Circuit Court of Appeals for the 
 Fifth Circuit and of the District Court for the Eastern District 
 of Texas (both unreported)]. 
 
 U. 8. V. Boston c& M. R. Co., D. C, D. New Hampshire, October 
 29, 1912, Aldrich, D. J. [unreported]; 11. 8. v. Great Northern Ry, 
 Co., D. Minnesota, June 4, 1913, Willard, D. J. [unreported]. 
 
 7. Fatigue is as truly a physical cause of railroad accidents as broken 
 rails and open switches. 
 
 U. 8. V. Minneapolis, 8t. P. & 8. 8. M. Ry. Co. [unreported]. 
 District Court, District of North Dakota, January 21, 1913. 
 We are still more or less under the spell of the "old idea that 
 care is wholly a matter of the will. No truth of science, how- 
 ever, is better established than that fatigue is not simply a 
 matter of muscles, but that it involves nerves and brain as well, 
 
120 HOURS OF SERVICE ACT. 
 
 and extends to all the faculties of the mind itself. It produces 
 physiological changes which deaden the will and impair the 
 sense of sight and of hearing. It is as truly a physical cause of 
 accident as are open switches and broken rails. — Amidon, D. J. 
 
 8* The inability of carriers to compel employees to rest during their 
 intermissions from actual service is a remote contingency. 
 U. S. V. Great Northern Ry. Co., 206 Fed., 838. 
 District Court, District of Idaho, July 9, 1913. 
 
 It has been suggested that the carrier has no power to com- 
 pel its employees to rest, and when given the opportunity for rest 
 they may use the time in laboring upon their own account or for 
 some other employer, but such a contingency is remote in the 
 extreme; at least it is one with which we are not presently con- 
 cerned. — Dietrich, D. J., p. 841. 
 See also: 
 
 San Pedro, L. A. & S. L. R. Go. v. V. S., 213 Fed., 326. 
 Circuit Court of Appeals, 8th Circuit, March 27, 1914. 
 
 In this legislation Congress had in view the many serious 
 raiboad accidents caused by the unfitness for duty of men 
 engaged in or having to do with the movements of trains, who 
 had endured excessive periods of continuous, unbroken service 
 without intervals for rest. The remedy adopted was by limiting 
 the maximum of the hours of service and the minimum for the 
 intervals between. It was thought futile to attempt to control 
 the employees in their use of their off time; therefore, as being 
 more practical and efficient, the command was laid upon and 
 confined to those who gave them employment in their regular 
 occupations. — Hoolc, G. J., p. 328. 
 
 9. A carrier can not escape liability to a passenger for laying off a 
 train and consequentially delaying his arrival at his destination, 
 on the theory that such a course may have been necessary in 
 order to avoid a violation of the Act, if the delay responsible for 
 the situation was attributable to its own negligence. 
 Black V. Gharleston dc W, G, Ry. Go., 69 S. E., 230. 
 
 C. SCOPE OF THE ACT. 
 
 1. Carriers subject to the Act. 
 
 That the provisions of this Act shall apply to any common carrier or 
 carriers, their officers, agents, and employees, engaged in the trans- 
 portation of passengers or property by railroad in the District of Co- 
 lumbia or any Territory of the United States, or from one State or 
 Territory of the United States or the District of Columbia to any other 
 State or Territory of the United States or the District of Columbia, or 
 from any place in the United States to an adjacent foreign country, or 
 from any place in the United States through a foreign country to any 
 other place in the United States. * * *.—Sec. 1, Act March 4, ■ 1907 
 [S4Stat. atL., 1415,1416]. 
 
 Scope of the Act. — The provisions of this Act 
 apply to all common carriers by railroad in the District 
 of Columbia, or in any Territory of the United States, or 
 
 c. 
 
SCOPE. 121 
 
 engaged in the movement of interstate or foreign traffic; 
 and to all employees of such common carriers who are 
 engaged in or connected with the movement of any train 
 carrying traffic in the District of Columbia, or m any 
 Territory, or carrying interstate or foreign traffic. — Adm. 
 Ruling No. 287a. 
 
 Electric railways — Street-car companies. — 
 Upon inquiry whether the Hours of Service law applies 
 to electric street car lines which are interstate carriers: 
 Held J That it appUes to all railroads subject to the pro- 
 visions of the Act to regulate commerce, as amended, 
 including street railroads when engaged in interstate 
 commerce. — Adm. Ruling No. 66. 
 
 (a). "Common Carrier'* defined. 
 TJ, 8. V. Ramsey, 197 Fed., 144. 
 
 Circuit Court of Appeals, 8th Circuit, May 27, 1912. 
 
 "A common or public carrier is one who, by virtue of his 
 business or calHng, undertakes, for compensation, to transport 
 personal property from one place to another, either by land or 
 water, and deliver the same, for all such as may choose to employ 
 him; and everyone who undertakes to carry and deliver, for 
 coinpensation, the goods of all persons indifferently, is, as to 
 liability, to be deemed a common carrier." Moore on Carriers, 
 p. 18. — Hunger, D. J., p. 146. 
 
 (b). "Railroad," as used in the Act, defined. 
 
 * * * The term "railroad" as used in this Act shall include all 
 bridges and ferries used or operated in connection with any railroad, 
 and also all the road in use by any common carrier operating a railroad, 
 whether owned or operated under a contract, agreement, or lease; 
 * * *.—Sec. 1, Act March 4, 1907 [34 Stat, at L., 1415, 14I6]. 
 
 2. The Eeceiver of a railroad company, as such, is a common carrier 
 within the purview of the Act. 
 U. S. V. Ramsey, 197 Fed., 144. 
 
 Circuit Court of Appeals, 8th Circuit, May 27, 1912. 
 
 From a consideration of the foregoing authorities it seems 
 to us clear that the term '^common carrier" had a well-defined 
 meaning, and that the receiver of a railroad came within the 
 designation '^ common carrier;" that Congress, in using the 
 term *' common carrier," used it in the sense in which such words 
 are generally meant and understood; that the object and pur- 
 pose of the statute would be entirely defeated in all cases in 
 which a railroad or other common carrier is operated by a 
 receiver if the words "common carrier" should be given a more 
 restricted meaning than generally understood. It seems clear 
 that a receiver in the operation of a railroad is a common carrier 
 within the meaning of the statute; and though he is not per- 
 sonally liable, he is liable in his official capacity, and the pay- 
 ment of any judgment obtained would be- subject to the order 
 of the court appointing the receiver in the exercise of its equi- 
 table powers. — Hunger, D. J., p. 148. 
 
122 HOTIES OF SERVICE ACT. 
 
 S. * Employees subject to the Act. 
 
 * * * the term "employees" as used in this Act shall be held to 
 mean persons actually engaged in or connected with the movement 
 of any train.— -Sec. i, Act March 4, 1907 [34 Stat, at L., 1415, 14I6]. 
 
 Employees subject to the Act. — The Act does not 
 specify the classes of employees that are subject to its 
 terms. All employees engaged in or connected Avith the 
 movement of any train as described in section 1 are 
 within its scope. Train dispatchers, conductors, engi- 
 neers, telegraphers, firemen, brakemen, train baggage- 
 men who, by rules of carriers, are required to perform 
 any duty in connection with the movement 01 trains, 
 yardmen, switch tendei-s, tower men, block-signal oper- 
 ators, etc., come within the provisions of the statute. — ■ 
 Adm. Ruling No. 287-c. 
 
 Feery employees. — ^The Houi-s of Service law does 
 not apply to employees on a ferry, even though the 
 ferry be owned by a railroad company. The law applies 
 to employees connected with the movement of trains, 
 and hence does not embrace employees engaged only 
 in the operation of a ferry. This ruling does not apply 
 to car ferries. — Adm. Ruling No. 108. 
 
 Train baggagemen. — The provisions of section 1 
 of the Hours of Service law apply to train baggagemen 
 who are employees of the railway company and who are 
 required by the rules of the company to perform or to 
 hold themselves in readiness, when called upon, to 
 perform any duty connected with the movement of any 
 train. — Adm. Ruling No. 275, 
 
 U, S. V. Missouri Pacific Ry. Co., 206 Fed., 847. 
 
 District Court, District of Kansas, March 24, 1913. 
 
 The term ''employees," as employed in and defined bv the 
 Act itself, is ''persons actually engaged in or connected with the 
 movement of any train." — Pollock, U. J., p. 849. 
 JJ. 8. V. AtcUson, T. <Sb S. F. Ry, Co., 177 Fed., 115; San Pedro, 
 L.A. & S. L. Ry. Co., v. U. S., 213 Fed., 826. See also Schwdgy, 
 Chicago. M. & St. P. Ry. Co., 205 Fed., 96; State v. Chicago, M. 
 cfe St. P. Ry. Co., 117 N. W., 686. 
 See also: 
 
 Baltimore cfc 0. R. Co. v. I. C. C, 221 U. S., 612. 
 Supreme Court, May 29, 1911. 
 
 No difficulty arises in the construction of this language. 
 The first sentence states the application to carriers and em- 
 ployees who are "engaged in the transportation of passengers or 
 property by railroad"' m the District of Columbia or the Terri- 
 tories, or in interstate or foreign commerce. ^ The definition in 
 the second sentence, of what the terms "railroad" and "em- 
 ployees" shall include, qualify these words as previously used, 
 
 *By Executive Order of President Taft, dated November 23, 1909, the require- 
 ments of the proviso in section 2 of the Act were extended to the employees of the 
 Panama Railroad Company. 
 
SCOPE. 123 
 
 but do not remove the limitation as to the nature of the trans- 
 portation in which the employees must be engaged in order to 
 come within the provisions of the statute, if the definition, in 
 the last part of the sentence, of the words used in the first part 
 be read in connection with the latter the meaning of the whole 
 becomes obvious. The section, in effect, thus provides: ''This 
 Act shall apply to any common carrier or carriers, their officers, 
 agents, and employees (meaning by ^employees' persons actually 
 engaged in or connected with the movement of any train), en- 
 gaged in the transportation of passengers or property by rail- 
 road (meaning by 'railroad' to include all bridges and ferries 
 used or operated in connection with any railroad) in the Dis- 
 trict of Columbia or any Territory * * * or from one State 
 * * * to any other State," etc. In short, the employees 
 to which the Act refers, embracing the persons described in the 
 last sentence of the section, are those engaged in the transpor- 
 tation of passengers or property by railroad in the district, terri- 
 torial, interstate or foreign commerce defined; and the railroad, 
 including bridges and ferries, is the railroad by means of which 
 the defined commerce is conducted. — Hughes, Justice, p. 617. 
 
 (a). A fireman or other employee subject to the Act while engaged in 
 watching an engine is connected with the movement of a train 
 within the purview of the Act. 
 See Item 5-(d)-(i), p. 131, 'post. 
 
 (b). "Other employee," as used in the proviso in section 2 of the Act, de- 
 fined. 
 Missouri Pacific Ry. Co. v. U. S., 211 Fed., 893. 
 
 Circuit Court of Appeals, 8th Circuit, February 16, 1914. 
 The proviso ought not to be construed so broadly as to 
 anihilate the general language of the section. We think that 
 under a well-established rule of construction the words **or 
 other employee" found in the proviso, must be construed to 
 mean an employee engaged in the same character of service as 
 a train dispatcher or operator, who by the use of the telegraph 
 or telephone performs the work described in the proviso. In 
 other words, Congress intended the 9-hour provision to apply 
 to employees whose primary duty was to dispatch, report, 
 transmit, receive, or deliver orders pertaining to or affecting 
 train movements. * * * Where general words follow an 
 enumeration of particular classes of persons or things, they will 
 be construed as applicable only to persons or thmgs of the same 
 general nature or class as those enumerated. The particular 
 words are presumed to describe certain species and the general 
 words to be used for the purpose of including other species of 
 the same genus. The rule is based on the obvious reason that, 
 if the legislature had intended the general words to be used in 
 their unrestricted sense, they would have made no mention of 
 the particular classes. The words ''other" or "any other," fol- 
 lowuig an enumeration of particular classes, are therefore to be 
 read as "other such like," and to include only others of like kmd 
 or character. [Citing First Nat. Bank of Anamoose V. TJ. S., 
 206 Fed., 374, and U. S. v. Bevans, 3 Wheat., 336.] * * * 
 
124 HOURS OF SERVICE ACT. 
 
 As the word ''employee" in the proviso in section 2 includes 
 "operator" and ''train dispatcher," for the latter are both em- 
 ployees, the conclusion here is irresistible that Congress intended 
 by the use of the words "other employee" to mean an employee 
 engaged primarily in the same class of service as would be per- 
 formed by an operator or train dispatcher. — Garland, G. J., 
 pp. 896, 897. 
 
 But see U. S. v. Houston B. & T. Ry. Go., 205 Fed., 344. 
 
 4. limitations of service. 
 
 That it shall be unlawful for any common carrier, its officers or 
 agents, subject to this Act to require or permit any employee subject to 
 this Act to be or remain on duty for a longer period than sixteen con- 
 secutive hours, and whenever any such employee of such common car- 
 rier shall have been continuously on duty for sixteen hours he shaU be 
 relieved and not required or permitted again to go on duty until he has 
 had at least ten consecutive hours off duty; and no such employee who 
 has been on duty sixteen hours in the aggregate in any twenty-four- 
 hour period shall be required or permitted to continue or again go on 
 duty without having had at least eight consecutive hours off duty: 
 Provided, That no operator, train dispatcher, or other employee who 
 by the use of the telegraph or telephone dispatches, reports, transmits, 
 receives, or delivers orders pertaining to or affecting train movements 
 shall be required or permitted to be or remain on duty for a longer period 
 than nine hours in any twenty-four-hour period in all towers, offices, 
 places, and stations continuously operated night and day, nor for a 
 longer period than thirteen hours in all towers, offices, places, and sta- 
 tions operated only during the daytime, except in case of emergency, 
 when the employees named in this proviso may be permitted to be and 
 remain on duty for four additional hours in a twenty-four-hour period 
 on not exceeding three days in any week: * * *. — Sec. S, Act March ^, 
 1907 [34 Stat. L., 1415, 1416]. 
 
 6. "On duty" and "off duty," as used in the Act, defined. 
 
 The requirement for ten consecutive hours off duty 
 appHes only to such employees as have been on duty 
 for sixteen consecutive hours. The requirement for 
 eight consecutive hours off duty applies only to em- 
 ployees who have not been on duty sixteen consecu- 
 tive hours, but have been on duty sixteen hours in the 
 aggregate out of a twenty-four-hour period. Such 
 twenty-four-hour period begins at the time the em- 
 ployee first goes on duty after having had at least eight 
 consecutive hours off duty. The term "on duty" in- 
 cludes all the time during which the employee is per- 
 forming service, or is held responsible for performance 
 of service. An employee goes "on duty" at the time 
 he begins to perform service or at which he is required 
 to be in readiness to perform service, and goes "off 
 duty" at the time he is relieved from service and from 
 responsibihty for performance of service. — Adm. Ruling 
 No. 287-b. 
 
SCOPE. 125 
 
 Missouri, K. c& T. Ry. Co. of Texas v. U, S., 231 U. S., 112. 
 Supreme Court, November 10, 1913. 
 
 One of the delays was while the engine was sent off for 
 water and repairs. In the meantime the men were waiting, 
 doing nothing. It is argued that they were not on duty during 
 this period and that if it be deducted, they were not kept more 
 than sixteen hours. But they were under orders, liable to be 
 called upon at any moment, and not at hberty to go away. 
 They were none the less on duty when inactive. Their duty 
 was to stand and wait. [U. S. v. Chicago , M. & P. S. By. Co., 
 197 Fed., 624; TJ. S. v. Denver & R. G. R. Co., 197 Fed., 629.]— 
 Holmes, Justice, p. 119. [Affirming the judgment of the Cir- 
 cuit Court of Appeals for the Fifth Circuit and of the District Court 
 for the Eastern District of Texas (both decisions unreported)], 
 
 V. 8 V. Chicago, M. & P. S. Ry. Co., 195 Fed., 783. 
 
 District (Jourt, Western District of Washington, April 29, 1912. 
 An employee is on duty when he is at his post in obedience 
 to rules or reauirements of his superior and ready and willing 
 to work, whetner actually at work or waiting for orders or for 
 the removal of hindrances from any cause. The words ''on 
 duty'^ appear to have been intelligently chosen and used in 
 the composition of the statute to bar all excuses for noncom- 
 pliance with its requirements by any pretext of misunder- 
 standing its meaning. [U. S. v. Illinois Central R. Co., 180 
 Fed., ^ZO.y-Hanford, D. J., p. 785. 
 
 U. 8. v. Northern Pacific Ry. Co. [unreported]. 
 
 District Court, Western District of Washington, Feb. 13, 1914. 
 An employee goes on duty, within the meaning of the law, 
 at the time he reports for work, as required by the rules of the 
 company, and begins the work of looking after his train and 
 seeing that it is in proper condition for road service. He remains 
 on duty while he is in charge of his train, performing service in 
 and about the same, or held responsible for the performance of 
 such service should the occasion therefor arise. 
 
 An employee is not off duty until he is relieved from all 
 responsibility as to his train and becomes his own free agent to 
 go and do as he pleases. Brief interruptions, such as time neces- 
 sary for meals while on the road, meeting trains, waiting for 
 orders, delays on account of congestion of traffic, can not be con- 
 sidered as time off duty, although during such detention no 
 active service whatever may be required of such employee. 
 
 Of course, what is a brief interruption is a relative term; in 
 determining what a brief interruption is as covered by this in- 
 struction you will take into consideration what I have already 
 told you. You can underetand if a man was engaged in a ''tug 
 of war'' that if he had 2 hours and 45 minutes off it would be a 
 substantial rest from that occupation, and so here you must use 
 your practical judgment and experience as men in determining 
 whether this interruption in this service such as is claimed by the 
 defendant was of substantial benefit for the purpose that Con- 
 gress intended this law, to enable the men to revive and recu- 
 perate and rest, so that they might renew their service and duty. 
 After an employee in train service starts on his trip he can not be 
 
126 HOURS OF SERVICE ACT. 
 
 said to be off duty, within the meaning of the law, until he reaches 
 the end of his run, unless before reaching his destination he is 
 released from all service in connection with his train or from all 
 responsibility therefor should the occasion arise, and is given an 
 unqualified, bona fide release, and for a definite and substantial 
 period. — CusJiman, D.J. 
 V. S. V. Denver c& R. G. R. Co., 197 Fed., 629. 
 
 (a). Employees while "deadheading" on freight or passenger trains, 
 f relieved from all responsiblity in connection with the movement 
 of such trains, are not on duty within the purview of the Act. 
 ''Deadheading.'^ — Employees deadheading on 
 passenger trains or on freight trains and not required to 
 perform, and not held responsible for the performance 
 of, any service or duty in connection with the movement 
 of the train upon which they are deadheading, are not 
 while so deadheading "on duty'' as that phrase is used 
 in the Act regulating the hours of labor. — Adm. Ruling 
 No. 74. 
 Osborne's AdmW. v. Cincinnati, N. 0. cfe T. P. Ry. Co., 164 S. W., 818. 
 Court of Appeals of Kentucky, March 24, 1914. 
 
 Although we have made a very thorough examination of the 
 cases involving the construction of this Act, we have not found 
 one presenting or deciding the question whether an employee 
 who is "deadheading" is engagea in service connected with the 
 movement of any train within the meaning of the Act. 
 
 The Interstate [Commerce] Commission, however, has pro- 
 mulgated rule No. 74, providing that "employees 'deadheading' 
 on passenger trains or on freight trains and not required to per- 
 form, and not held responsible for the performance of, any 
 service or duty in connection with the movement of the train 
 upon which they are 'deadheading,' are not, while so 'dead- 
 heading ' ' on duty ' as that phrase is used in the Act regulating 
 the hours of labor." This construction, although it does not 
 have the binding force of a court decision, is yet entitled to great 
 weight on account of the important duties this high Commission 
 exercises in administering these remedial federal statutes, and 
 we concur in its soundness when applied to the facts of this 
 case. — GarroU, J., p. 822. 
 
 (b) . The service of an employee subject to the Act, preliminary or supple- 
 mental to his regular duties, is to be computed in his period on duty. 
 V. S. V. Illinois Central R. Co., 180 Fed., 630. 
 
 District Court, Northern District of Iowa, Jime 23, 1910. 
 The question here is as to the effect of the rule of the com- 
 pany requiring men to report 30 minutes before the leaving 
 time of the train to do the things required by the rule, coupled 
 with the fact that this man did comply with that rule. 
 
 I do not think the custom of the company not to strictly 
 enforce the rule makes any difference. This man complied with 
 the rule. He arrived at the engine 30 minutes before the leaving 
 time of the train, and was actually engaged in doing the things 
 required by the rule, and the question here is whether he was 
 during that time, within the meaning of the Act, actually engaged 
 
SCOPE. 127 
 
 in or connected with the moving of that train. That is the ques- 
 tion here. In in y opinion this m an was on duty, within the mean- 
 ing of the Act, from the time he went there and commenced to 
 supervise, or overlook, that engine in preparation for the trip. It 
 does not make any difference whether he was j^aid for this time 
 or not, that was the time his work and the strain on him began. 
 The work of an engineer, an emploj^ee of the railroad, begins when 
 under the rule of the company he is there and is at work in con- 
 nection with the preparation of the engine for the moving of the 
 train. He must look over that engine. He must see that it is oiled 
 up. He niust see that the air brakes are all right. He must move 
 the engine down over the tracks and across the switches to connect 
 it with the train. And in my opinion he is on duty, within the 
 meaning of the Act, during the time he is doing these things. If 
 he goes there a half an hour before the time to start to do these 
 things, during the time he is there doing them he is on duty. 
 That is my view of it. — Morris, D. J., pp. 630-631. 
 U. S. V. Chicago, M. & P. S. Ry. Co., 195 Fed., 783. 
 
 District Court, Western District of Washington, April 29, 1912. 
 
 Does the statutory limitation of time of continuous service 
 applicable to engineers, firemen, conductors, and brakemen em- 
 ployed in the operation of trains include, or exclude, the time 
 on duty preceding and subsequent to the time of service in 
 actual operation of trains between the terminal points at which 
 their runs are commenced and ended ? 
 
 There is no ambiguity in the statute; therefore, it does not 
 have to be construed in order to ascertain its meaning. It is man- 
 datory in declaring: ''That it shall be unlawful for any common 
 carrier, its officers or agents, subject to this Act to require or 
 permit any employee subject to this Act to be or remain on duty 
 for a longer period than 16 consecutive hours." 
 
 This broad rule is restricted only by the exceptions speci- 
 fied in the Act itself. These include cases of casualty or una- 
 voidable accident or the act of God or where delay was the result 
 of a cause not known to the carrier, its officer or agent in charge 
 of such employees at the time when they leave a terminal and 
 crews operating wrecking and relief trains, and the court is not 
 authorized to add other exceptions by construing the Act in a 
 way to extend the duration of permissible contmuous service. 
 An employee is on duty when he is at his post in obedience to 
 rules or requirements of his superior and ready and wilUng to 
 work, whether actually at work or waiting for orders or for the 
 removal of hindrances from any cause. The words ''on duty" 
 appear to have been intelfigently chosen and used in the composi- 
 tion of the statute to bar aU excuses for noncompliance with its 
 requirements by any pretext of misunderstanding its meaning. 
 [U. S. V. niinois Central R. Co., 180 Fed., QSO].—Hanford, D, /, 
 p. 785. 
 U. 8, y. Denver <& R. G, R. Co., 197 Fed., 629. 
 
 District Court, District of New Mexico, May 1, 1912. 
 
 The case turns, first, upon whether in computing the 16-hour 
 period the preparatory service of 15 minutes is mcluded, and, sec- 
 ond, whether the 55 minutes' stop at Osier broke the continuity 
 
128 HOURS OF SERVICE ACT. 
 
 of the service, so that after all it did not include as much as ^'16 
 consecutive hours/' In other words, the decisive question is 
 whether the crew was ''on duty" during both of these periods. 
 
 It is doubtful if any definition of the words ''on duty" can 
 be clearer than the words themselves. Manifestly, however, they 
 mean to be either actually engaged in work or to be charged 
 with present responsibility for such, should occasion for it arise. 
 Tested by this definition, the crew during the preparatory 15 
 minutes was clearly on duty. They were at the starting point 
 pursuant to a rule of the defendant company requiring them to 
 be there. They were engaged in work necessary to the trip. The 
 conductor, according to the proofs, was getting his biUs and orders ; 
 the brakemen were looking over the train to detect defective cars 
 and equipment and in going to the roundhouse to bring the engines 
 and to couple them to the train. With all of these unperformed 
 the train could not have moved. . With some unperformed the 
 train would probably have moved only to destruction for lack of 
 orders or of safe equipment. These duties were quite as important 
 as those after the tram started and, contrary to what counsel con- 
 tend, impress us as constituting quite as great a strain upon the 
 nervous and physical energies as arose after the train was actually 
 in motion. We believe such to have been as much in the congres- 
 sional mind in declaring what length of duty shall call for rest as 
 those connected with a train actually moving. Nor does it de- 
 tract from this view that the men were paid nothing for this pre- 
 liminary work. The defendant can hardly be heard to contend 
 this in the face of its rule requiring this very service. Presum- 
 ably, however, in fixing a rate of compensation beginning in terms 
 only with the starting time the employees and the railroad took 
 into consideration the rule just mentioned, so that after all this 
 preliminary work was not really done gratuitously, but was 
 merged into a scale of wages mutually satisfactory to aU con- 
 cerned. At any rate, labor does not cease to be such because not 
 paid for, nor does duty cease to exist because performed without 
 compensation in connection with duty for which there was com- 
 pensation. — Pofe, D. J., pp. 631-632. [Cited with apparent 
 approval by the Supreme Court in Missouri, K. <& T. By. Co. of 
 Texas v. U. S., 231 U. S., 112]. 
 U, S. V. Kansas City Southern Ry, Co., 189 Fed., 471 ; San Pedrof 
 L. A. (&.S. L. R. Co. V. TJ. S., 213 Fed., 326; Oshorne's Adm'r.y. 
 Cincinnati, N. 0. cfc T. P. Ry. Co., 164 S. W., 818; U. S. v. 
 Boston c& M. R. Co., D. C, D. New Hampshire, Oct. 29, 1912, 
 Aldrich, D. J. [unreported]; V. S. v. Northern PaciHc Ry. Co., 
 D. C.,W. D.Washington, Feb. 13, 1914, Cushman, D. J. [unre- 
 ported]. 
 
 (c). The application of the Act to employees otherwise within its 
 terms is not to be evaded by a commingling of their duties with 
 respect to interstate and intrastate operations. 
 Baltimore S 0. R. Co. v. /. C C, 221 U. S., 612. 
 Supreme Court, May 29, 1911. 
 
 But the argument undoubtedly involves the consideration 
 that the interstate and intrastate operations of interstate car- 
 
SCOPE. 129 
 
 riers are so interwoven that it is utterly impracticable for them 
 to divide their employees in such manner that the duties of 
 those who are engaged in connection with interstate commerce 
 shall be confined to that commerce exclusively. And thus, 
 many employees who have to do with the movement of trains 
 in interstate transportation are, by virtue of practical necessity, 
 also employed in intrastate transportation. * * * 
 
 If, then, it be assumed, as it must be, that in the further- 
 ance of its purpose Congress can limit the hours of labor of 
 employees engaged in interstate transportation, it follows that 
 this power can not be defeated either by prolonging the period 
 of service through other requirements of the carriers or by the 
 commingling of duties relating to interstate and intrastate oper- 
 ations. — HugJies, Justice, pp. 618, » 19. 
 Northern Pacific Ry. Co. v. State of Washington, 222 U. S., 370. 
 Supreme Court, January 9, 1912. 
 
 The train, although moving from one point to another in 
 the State of Washington, was hauling merchandise from points 
 outside of the State destined to points within the State and 
 from points within the State to points in British Columbia, as 
 well as in carrying merchandise which had originated outside of 
 the State and was in transit thi'ough the State to a foreign 
 destination. This transportation was interstate commerce, 
 and the train was an interstate train, despite the fact that it 
 may also have been carrying some local freight. In view of 
 the unity and indivisibility of the service of the train crew and 
 the paramount character of the authority of Congress to regu- 
 late commerce, the Act of Congress was exclusively controlling. 
 [Southern Ry. Co. v. U. S., 222 U. S., 20.]— White, Chief Justice , 
 pp. 375-376. 
 Erie R. Co. v. New YorTc, 233 U. S., 671. See also: 
 State V. Chicago, M. & St. P. Ry. Co., 117 N. W., 686. 
 Supreme Court of Wisconsin, September 29, 1908. 
 
 The direction and dispatching of every train on an interstate 
 railway necessarily involves knowledge in the train dispatcher of 
 all other trains which are in the same vicinity at the same time, 
 and also abihty to control such other trains. An interstate train 
 from Milwaukee to Chicago can not be safely forwarded if, under 
 the direction of a separate employee, a local train may be moving 
 between Milwaukee and Racine over the same track at the same 
 time, or nearly so. The very switching at local stations must be 
 within the knowledge and under the control of him who is to 
 decide upon and direct the most important of interstate trans- 
 portation. Obviously division of authority over these subjects 
 would be frauglit with great perils and delays to both kinds of 
 transportation. Hardly any act of a train dispatcher on a busy 
 railroad can be conceived which does not affect both interstate 
 and domestic commerce. He can not move or stop the most dis- 
 tinctively local train without affecting the interstate train, or 
 vice versa. No extra ^or special can be put on the division with- 
 50611—15 ^9 
 
130 HOimS OF SERVICE ACT. 
 
 out 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 severance of 
 control over State from interstate trains involved so much of con- 
 fusion and probability of danger, and its possibility even is so 
 doubtful and experimental, that no legislature would absolutely 
 precipitate it without careful consideration nor without provid- 
 ing in the act for the event of the failure of such experiments. 
 For this reason as well we are convinced that tlie legislative pur- 
 pose involved what the legislative words include, the regulation 
 of services of all operators, and would in no wise be satisfied, even 
 in part, by a restriction to those whose acts affect only domestic 
 commerce, if, indeed, there are any such. — Dodge, J., pp. 690-691 . 
 
 (d). An Employee subject to the Act may not engage in any railroad 
 service, howsoever unconnected with the movement of any train, 
 if the total time devoted to such service and to his regular 
 duties exceeds the periods of service permitted by the statute. 
 The prime purpose of this law is to secure addi- 
 tional safety by preventing employees from working 
 longer hours than those specified in the Act. There- 
 fore a telegraph or telephone operator who is employed 
 in a night and day ofhce may not be required to per- 
 form duty in any capacity or of any kind beyond nine 
 hours of total service in any twenty-four hour period. — 
 Adm. Ruling No. 287-e. 
 Baltimore cfc 0. R. Co. v. /. C. C, 221 U. S., 612. 
 Supreme Court, May 29, 1911. 
 
 If, then, it be assumed, as it must be, that in the furtherance 
 of its purpose Congress can limit the hours of labor of employees 
 engaged m interstate transportation, it follows that this power 
 can not be defeated either by prolonging the period of service 
 through other requirements of the carriers or oy the commin- 
 
 fUng of duties relating to interstate and intrastate operations. — 
 lughes, Justice, p. 619. 
 San Pedro, L. A. & S. L. R. Co. v. U. 8., 213 Fed., 326. 
 Circuit Court of Appeals, 8th Circuit, March 27, 1914. 
 
 It is to be noted that the employees within the statute are 
 those "actually engaged in or connected with the movement of 
 any train," but obviously the purpose of the legislation would be 
 defeated if they might be required or permitted hj their em- 
 ployers to occupy the hours intended for rest with railroad 
 service of another kind. The particular character of the labor 
 required or permitted in the intervals would seem immaterial. 
 In Baltimore S 0. R. Co. y. I .C. C, 221 U. S., 612, it was said: 
 ''The length of hours of service has a direct relation to the 
 efficiency of the human agencies upon which protection to life 
 and property necessarily depends. * * * If, then, it be 
 assumed, as it must be, that in furtherance of its purpose Con- 
 gress can Hmit the hours of labor of employees engaged in inter- 
 state transportation, it follows that this power can not be defeated 
 
SCOPE. 131 
 
 either by prolonging the period of service through other reqfuire- 
 ments of the carriers or by the commingling of duties relating to 
 interstate and intrastate operations/^ — Hoolc, C. J,, p. 328. 
 
 TJ. S. V. Grand Trunk Ry. Co. [unreported]. 
 
 District Courl, District of New Hampshire, October 30, 1912. 
 The Government says it is not open to an employer, or a 
 carrier, to work the man a substantial part of 9 hours as oper- 
 ator, and thru lengthen his service beyond the 9 hours bv put- 
 ting him at work m some other branch of the service, and 1 am 
 inclined for the purposes of this case to adopt that view, and 
 construe the statute as meaning that where a substantial service 
 is performed by the employee at the telegraph and he uses up 6 
 of the 9 hours, that whatever service he does after that in the 
 performance of duty in the general work of the carrier that the 
 employment, taken all together, should not exceed 9 hours. — 
 AJdrich, D. J, 
 
 U. S. V. Chicago, R. I. & P. Ry. Co. [unreported]. ^ 
 
 District Court, Western District of Mi^-souri, March 5, 1914. 
 Congress intended the nine-hour provision to apply to em- 
 ployees of a certain class whose employment embraced tne duties 
 enumerated in the provi o. It is not necessary, however, that 
 such employees should be engaged exclusively and continuou-ly 
 in the discharge of the prescribed duties of di patching train - by 
 the use of the telegraph or the telephone, if sucn is a part of their 
 work, and if they must hold themselves in readiness while on 
 duty to perform such service whenever the occasion may arise. 
 * * * So I think it may be assumed that so far as the spirit 
 of this law is concerned, these men are on duty from the time 
 their watch begins; that their work of operating the electric 
 staff machine, which is but a mechanical form of transmitting 
 train orders, would weary them and diminish their alertness, 
 perhaps quite as much as though they were actually engaged in 
 using the telegraph or telephone. At any rate, I think it clear 
 that if, after having been engaged in such employment, the 
 machine should fail to work and they should proceed with dis- 
 patching, reporting, transmitting, receiving, and delivering or- 
 ders by telegraph, and should continue in ser^ace thus for an 
 aggregate of more than nine hours, the law would be violated. — 
 Van ValkenhurgTi, D. J. 
 
 See also U, S. v. Atchison, T. cfc S. F, Ry. Co., 177 Fed., 115. 
 
 (i). A fireman or other employee subject to the Act, while engaged 
 in watching an engine, is on duty within the purview of the Act. 
 San Pedro, L. A. & S. L. R. Co. v. U. S., 213 Fed., 326. 
 Circuit Court of Appeals, 8th circuit, March 27, 1914. 
 
 It is contended that the excess service here was of another 
 kind, and being at the end of the 16 hours is therefore im- 
 material, as it does not appear when thereafter the fireman re- 
 turned to work. That is too narrow a view of the legislation, 
 since it ignores the effect upon their efficiency of excessive hours 
 of service of any kind without rest. But, taldng the narrower 
 view, it can not be seriously doubted that the statute would be 
 
132 HOURS OF SERVICE ACT. 
 
 violated if the other service immediately preceded the 16 con- 
 secutive hours in a train movement. The attentiveness of mind 
 so essential to safety in transportation might be as effectively 
 impaired by loss of rest while oiling machinery in the shops or 
 attending an engine on a siding as while serving on a moving 
 train. Likewise if the train service aggregating 16 hours in a 
 24-hour period were divided by intervening service of another 
 kind. [U. S. v. Chicago, M. cfc P. S. Ry. Co,, 197 Fed., 624.] 
 If this were not so the requirements of a minimum of 10 hours' 
 rehef after 1 6 consecutive hours of duty and of but 8 hours' reUef 
 after an aggregate of 16 hours of duty out of 24 would often work 
 inconsistently. The shorter rest might foUow the longer labor if 
 the employee could without restraint be shifted in his work. We 
 also think a railroad company can not lawfully require or permit 
 an employee, within the statute, who has served tne 16 hours to 
 turn then to other duty without the prescribed rehef. [ JJ. S. v. 
 Great Northern Ry. Co., 206 Fed., 838.] The 10-hour and 8-hour 
 periods for rest were proportioned to 16 hours of duty, not to 
 16 hours of one kind plus an indefinite number of another. This 
 conclusion makes it unnecessary to consider whether a fireman 
 who, after 16 consecutive hours of service as such, watches his 
 engine on a siding and keeps it in a state of preparedness for his 
 successor is performing a duty in connection with the movement of 
 the train. [JJ. S. v. Missouri Pacific Ry. Co., 206 Fed., 847.]— 
 Eoolc, C. J., pp. 328-329. 
 Great NoHhem Ry. Co. v. U. S., 211 Fed., 309. 
 
 Circuit Court of Appeals, 9th Circuit, February 24, 1914. 
 The plaintiff in error contends that while their fireman was 
 acting as engine watchman on the locomotive, for the period 
 during which their freight train and locomotive were tied up on 
 the siding, the employee was not a person ' ' actually engaged in 
 or connected with the movement of any train" within the 
 meaning of those words as used in the Act of Congress; and, 
 further, that the final 8 hours during which their employee was 
 engaged as and performing the duties of engine watchman on 
 their locomotive, and while it was tied up and sidetracked on 
 their siding as aforesaid, constituted no portion of the period of 
 duty covered by the Act of Congress, ana that so far as the final 
 period of 8 hours is concerned the Act does not appl v . 
 
 With respect to the first of these contentions we do not think 
 that the narrow interpretation insisted upon by the plaintiff in 
 error can be applied to the language of the Act above quoted. 
 We can not believe that it was the intention of Congress that 
 the word '^movement" should be restricted to the actual resolu- 
 tion of the wheels of a train or locomotive engaged in interstate 
 commerce; for if that interpretation were the correct one obvi- 
 ously the very object of the Act — the promotion of the safety of 
 employees and travelers upon railroads — would be frustrated. 
 The sidings of a railroad are a part of its system and are indis- 
 pensable to the proper operation and mov^ement of its trains. 
 Tying up on a siding for any purpose, whether to await orders 
 or for the passing of other trams or for any other purpose con- 
 nected witn the transportation of freight or passengers, is as 
 
SCOPE. 13a 
 
 much a part of the general movement of a train as the actual 
 running thereof on the main hne and at scheduled periods. 
 The fact that, as in this case, the delay was for a period of 8 
 consecutive hours, does not operate to make it any the less a 
 delay occurring in the ordinary course of the general movement 
 of the trains of the plaintiff in error. Such delays are a part of 
 the general operations whereby traffic over railroads is conducted. 
 Following this contention of the plaintiff in error to its logical 
 conclusion, the result would be that the freight train and loco- 
 motive in this case could have been sidetracked and tied up for 
 an hour at a time, at intervals of an hour, and its employee 
 required to remain on duty as fireman and as engine watchman, 
 alternately, for an indefinite period, yet it would not have been 
 guilty of a violation of the Act under consideration. 
 
 It is next contended by the plaintiff in error that the final 8 
 hours during which their employee was engaged in performing the 
 duties of engine watchman on their locomotive, while it was tied 
 up and sidetracked on their siding, constituted no portion of the 
 period of duty covered by the Act. The duties of an engine 
 watchman, as appears from the agreed statement of facts in this 
 case, consisted in watching the quantity of water in the boiler of 
 the engine which he was employed to watch, and in replenishing 
 the same so that the engine could always have an adequate supply 
 of water whereby steam could be adequately and efficiently and 
 promptly generated, so that when the engme was again to be 
 moved it could move under its own steam without delay incident 
 to waiting until the engine could have again developed sufficient 
 steam; and likewise to watch the fire in the fire box of the engine, 
 and to replenish the same with fuel, so that the fire would be 
 kept up to such an extent that steam would be generated, so that 
 when it was next desired to move the engine the same could 
 move without delay by means of the steam so generated by means 
 of the fire. But wherein did these duties of the employee as 
 engine watchman differ from his duties as fireman ? In no essen- 
 tial particular as we view it. It is true that when a locomotive is 
 actually running the duties of a fireman with respect to keeping a 
 proper amount of water in the boiler and a proper amount of fire 
 m tne fire box may be more strenuous and occupy his time to a 
 greater extent than when the locomotive is sidetracked and tied 
 up on a sidmg; but that would be merely a question of degree and 
 would not affect the general nature of the duties of his occupa- 
 tion. The all-important fact not to be lost sight of in this case 
 is that the employee was required and permitted to continue to 
 apply himself to and perform for a period of 8 consecutive hours 
 (after 16 consecutive hours of labor) duties very similar to those 
 which he had been performing for the 16 hours immediately 
 before, without being granted any period during which he might 
 have an opportunity for rest. The argument of the plaintiff in 
 error in connection with the contention now under consideration 
 is that the safety of its employees and of the travelers upon its 
 railroad was not imperiled by the employee remaining on duty 
 the additional period of 8 hours as engine watchman. Conceding 
 that this might be true as to the employees and travelers upon 
 
134 HOURS OF SERVICE ACT. 
 
 other trains, the fact would still remain that had the fireman, 
 Burgen, during this additional period while he was acting as 
 engine watchman, through fatigue and general debility due to 
 excessive hours of labor, permitted the water in his locomotive 
 to become so low that an explosion would have been caused 
 thereby, his own safety, and perhaps the safety of the other mem- 
 bers of the crew of the tram, who had during that period retired 
 to rest upon the train, would have been imperiled. 
 
 There is another and a much stronger argument which we 
 think fully frupports the views which we have stated. The Act 
 prohibits any common carrier from requiring or permitting any 
 ' employee '^ to be and remain on dutjr for a longer period than 
 16 consecutive hours. There is no distinction made in the Act as 
 to any particular duty or duties which an employee may be per- 
 forming during the wliole time, or any portion of the time, he is 
 on duty. In this case, when Burgen's duties were changed from 
 those of fireman to those of engine watchman, he continued to be 
 no less an employee of the railroad company. In other words, 
 had he been employed as an engine watchman during the entire 
 period of 24 consecutive hours, there could be no question but that 
 such employment would have constituted a violation of the Act. 
 The fact that during the 24-hour period he was employed for 16 
 hours as fireman and for 8 hours as engine watchman does not 
 lessen the offense. — Morrow, C. J., pp. 311-313. [Affirming the 
 judgment of the District Court for tne District of Idaho in TJ. S, 
 V. Great Northern Ry. Co., 206 Fed., 838.] 
 Northern Pacific Ry. Co. v. U. S., 213 Fed., 577. 
 
 Circuit Court of Appeals, 9th Circuit, May 4, 1914. 
 
 The contention of the plaintiff in error is that, as in each of 
 the present instances, the train and engine were sidetracked 
 within 16 hours, and their crews laid off for rest, and that there- 
 after the respective firemen were placed in charge of then* re- 
 spective engines only for the purpose of keeping up the fires and 
 steam and otherwise watching the engines; they were not dur- 
 ing such time actually engaged in or actually connected with the 
 movement of a train, and therefore were not permitted or re- 
 quired by the railroad company to be or remain on duty for a 
 longer period than 16 hours within the meaning of the Act of 
 Congress; and the decision of the Supreme Court in the case of 
 Baltimore & 0. R. Co. v. /. C. C, 221 U. S., 612, is cited by 
 counsel as sustaining that contention. We cau not take that 
 view of that case. In so far as it bears upon the question we 
 have here we think the proper conclusion to be drawn from it is 
 quite the reverse and sustains our conclusion that the intent of 
 tne Act was and is to compel rest for each member of the train's 
 crew at the termination of the 16-hour period, to the end that his 
 next and succeeding hours of service may be efficient. For in 
 the case cited the court, at page 619, distinctly says: ^'The 
 length of hours of service has direct relation to the efficiency of 
 the human agencies upon which protection of life and property 
 necessarily depends. This has been repeatedly emphasized in 
 official reports of the Interstate Commerce Commission and is 
 
SCOPE. 135 
 
 a matter so plain as to require no elaboration. In its power 
 suitably to provide for the safety of employees and travelers 
 Congress was not limited to the enactment of laws relating to 
 mechanical appliances, but it was also competent to consider, and 
 to endeavor to reduce, the dangers incident to the strain of ex- 
 cessive hours of duty on the part of engineers, conductors, train 
 dispatchers, telegraphers, and other persons embraced within 
 the class defined by the Act. And in imposing restrictions 
 having reasonable relation to this end there is no interference 
 with liberty of contract as guaranteed by the Constitution. 
 [Chicago B. & Q. Ry. Co. v. McGuire, 219 U. S., 549.] If, then, 
 it be assumed, as it must be, that in the furtherance of its pur- 
 pose Congress can limit the hours of labor of employees engaged 
 in interstate transportation, it follows that this power can not be 
 . defeated either by prolonging the period of service through other 
 requirements of the carriers or by the commingling of duties 
 relating to interstate and intrastate operations.'' [See also 
 U. S. V. Great Northern Ry. Co., 206 Fed., 838; U. S. v. Missouri 
 Pacific Ry. Co., 206 Fed., 847.1 
 
 That the present case does not come within either of the 
 provisions of the Act declaring that it "shall not apply in any 
 case of casualty or unavoidable accident or the act of God; nor 
 where the delay was the result of a cause not known to the car- 
 rier or its officer or agent in charge of such employee at the time 
 said employee left a terminal, and which could not have been 
 foreseen" is obvious, if for no other reason, because the uncon- 
 tradicted evidence, as weU as the answer of the defendant com- 
 Eany itself, shows that each of the trains in question was stopped 
 y direction of the railroad company, sidetracked, and their 
 respective crews laid off for rest within 16 hours from the time 
 thev left Missoula for the very purpose of complying with the 
 said statute, excepting only the two named firemen, who were 
 continued at a duty which the company claims was not within 
 the inhibition of the law; the mistake made was its own mistake 
 in continuing one of each of the crews — the fireman — at the duty 
 of watching the engines. — Ross, C. J., pp. 580-581. [Afl5rming 
 the judgment of the District Court for the District of Mont anal. 
 U. S. V. Missouri Pacific Ry. Co., 206 Fed., 847. 
 
 District Court, District of Kansas, March 24, 1913. 
 
 From the statement made it is obvious the question pre- 
 sented is: Shall the time spent by the fireman as watchman in 
 charge of his engine being drawn by another engine to the ter- 
 minal station be computed in the hours of service as contem- 
 plated by the statute 2 * * * 
 
 While the question presented is, so far as I find, of first 
 impression, yet, considering the remedial nature and humane pur- 
 pose of the Act, the character of the duties imposed upon such 
 watchman, as stipulated by the parties, and all the facts and cir- 
 cumstances presented by the record to which consideration 
 should be given, I am forced to the conclusion the time so spent 
 by a locomotive fireman in watching his engine must be com- 
 puted as hours of service within the purview of the Act, and for 
 the following, among other reasons which might be given. 
 
136 HOURS OF SERVICE ACT. 
 
 The humane feature of the statute being considered, it must 
 be thought the Congress intended, at or before the expiration of 
 the 16-hour period of service provided therein, an employee 
 engaged in the movement of the train would, from exhaustion of 
 body and mind, be in need of relaxation and rest, freed from all 
 responsibility and care for the safety of himself and others. 
 That the cab of a moving engine in which such watchman is re- 
 quired to ride is not such place as in the absence of any duty to 
 be performed is conducive to that rest and relaxation required 
 by the statute, is a matter of common experience and knowledge. 
 However, when to this seK-evident fact, as in this case, there is 
 superadded the duties impo-ed on one so situate, as by the parties 
 stipulated, the question of relaxation, rest, and sleep requu*ed by 
 the statute must be almost if not altogether impossible. 
 
 Again, aside from the humane purpose of the Act, regarded 
 from the standpoint of the welfare of the employee himself, and 
 looking alone to the safety of the employee and others, it is 
 evident the nature of the duties required of such watchman, if 
 from loss of vigilance through exhaustion or sleep, he should 
 permit the water in the boiler to be entirely consumed, the 
 danger irom wreck of the train or other disaster by explosion, 
 involving himself and others, is apparent. 
 
 All things considered, I am of the opinion it must be held 
 such watchman is in a manner actually engaged in connection 
 with the movement of the train, and to such extent as brings the 
 time so consumed within the hours of service as contemplated 
 by the Act. If such construction of the statute is correct, and it 
 shall impose a burden too severe on railroad companies, the 
 remedy lies with the law-making power, not the courts. — Pollocky 
 D. J., pp. 848, 849. 
 IJ. S. V. Great Northern Ry. Co., D. C, D. Minnesota, June 4, 1913, 
 Willard, D. J. [unreported]. See also Osborne^ s Adm'r. v. Cincin- 
 nati, N. 0. & T. P. Ry. Co., 164 S. W., 818. 
 
 (a). And it is immaterial whether such service as engine watchman 
 precedes, intervenes, or succeeds the service as fireman or as other 
 employee so subject to the Act. 
 
 V. S. V. Great Northern Ry. Co., 206 Fed., 838. 
 
 District Court, District of Idaho, July 9, 1913. 
 
 Now, the defendant's position is that the time Burgen was 
 engaged in watching the engine is not to be counted, because 
 during such period he was performing a dut);^ having no con- 
 nection with the movement of any train. Plainly in that view 
 the test, and the only test, is the relation of the specific service 
 to the movement of trains. Logically, therefore, it is wholly 
 immaterial whether the service as watchman follows or precedes 
 the service as fireman or intervenes. It has no more connection 
 with the movement of trains in the one case than in the other, 
 and if want of such connection operates to exclude it from con- 
 sideration it is to be excluded the same in one case as in another. 
 * * * True, the violation of the spirit of the statute is more 
 apparent in such a case, where the service as watchman precedes 
 the service as fireman, than where, as here, it follows such serv- 
 
SCOPE. 137 
 
 ice, but the difference is one of degree onl;y^, and the courts can 
 not with nicety distinguish between service which materially 
 impairs and that which impairs only to an inappreciable extent 
 the efficiency of a trainman. That 24 hours of continuous service 
 without sleep is unnatural can not be gainsaid, and that if persisted 
 in for any considerable length of time, even with liberal inter- 
 vals of rest, it might injuriously affect the trainman's efficiency 
 is not unreasonable to believe. — Dietrich, D. J., p. 840-841. 
 
 — (b). Duties of an engine watchman defined. 
 
 U. S. V. Great Northern Ry, Co., 206 Fed., 838. 
 District Court, District of Idaho, July 9, 1913. 
 
 Burgen, however, was permitted and required to remain 
 upon the engine continuously thereafter until 6 o'clock the next 
 morning, during which time ho was on duty as an engine watch- 
 man, charged with the performance of no other duty or work 
 than that of engine watchman. These duties consisted of 
 watching the quantity of water in the boiler of the engine and 
 in replenishing the same, so that the engine would always have 
 an adequate supply of water whereby steam could be efhciently 
 and promptly generated, so that when the engine was again to 
 be moved it could be moved under its own steam and without 
 the delay incident to waiting until steam coul^l be generated 
 afresh, and in watching the fire in the firebox and replenishing 
 the same with fuel, so that there would always be sufficient fire 
 to generate steam. — Dietrich, D. J., p. 839-840. 
 
 U. S. y. Missouri Pacific Ry. Co., 206 Fed., 847. 
 
 District Court, District of Kansas, March 24, 1913. 
 
 As stated in the stipulation of the parties, the duties of the 
 fii-eman so engaged as watchman in charge of his engine are to- 
 keep a certain amount of Gxe in the furnace, to see the water 
 does not run too low in the boiler, and that a certain amount of 
 steam pressure is preserved. Aside from such duties, the engine 
 employed in drawing the train is in charge of another crew, as 
 is tne movement of the train itself. — PollocJc, D. J., pp. 848-849. 
 
 (e). The words "consecutive" and "continuous", as used in the Act, 
 are not restricted to unbroken intervals of time. 
 U. S. V. Northern Pacific Ry. Co. [unreported]. 
 
 District Court, Western District of Washington, Feb. 13, 1914. 
 You wiU understand what the words ''consecutive" and 
 '4n the aggregate" mean. This law prohibits men working 
 consecutively for one of these roads over 16 hours; that means 
 1 hour after another -without break, without substantial break. 
 Where it says 16 hours in the aggregate it contemj)lates where 
 there has been a substantial break m the service, in the duty 
 that they have been discharging. You can understand that in 
 determining what a substantial break in the service is, or the 
 performance or the discharge of the duty is, you should take 
 mto consideration what the purpose of the law was. The pur- 
 
 Eose of this law was that it was considered when men that nad 
 een on duty 16 hours consecutively or 16 hours in the aggre- 
 gate, in order to render them fit to discharge the duty of rail- 
 roading, it was necessary that they should have in one instance 
 
138 HOTIRS OF SERVICE ACT. 
 
 10 hours off duty for rest and recuperation, and in the other 
 instance 8 hours off duty. Therefore, to determine what may 
 be a substantial break in the hours of service it is your duty to 
 consider whether the break was sufficient in length of time and 
 under circumstances which would allow the men to gain some 
 rest or recuperation. You understand what that means. You 
 were here in court when we took recesses during the trial of 
 cases for certain purposes, and in schools children take recesses, 
 are permitted to take recesses for certain purposes, and in these 
 matters, the operation of these trains, having in mind what the 
 purpose of the law was, that the trainmen in order to be suffi- 
 ciently alert and wide-awake and active in mind and in body, 
 so as to be entrusted with the handUng of these trains, that they 
 should not be required to be on duty more than 16 hours con- 
 secutively, or 16 hours in the aggregate in the other case. — 
 Oushman, D. J. 
 U. S, V. Chicago, M. cfc P. S. Ry. Co., 197 Fed., 624. 
 
 (i). A respite from dnty so brief, or granted under snch circumstances, 
 as to preclude the rest and recuperation contemplated by the Act, 
 even though for a definite and predetermined interval, does not 
 break the continuity of service. 
 U. S. V. Chicago, M. S P. S. Ry. Co., 197 Fed., 624. 
 
 District Court, Eastern District of Washington, April 10, 1912. 
 The crew was allowed from 30 to 4.5 minutes for breakfast 
 and about one hour each for the midday and evening meals. 
 At meal time the crew was relieved from duty and a watchman 
 placed in charge of the traiu. * * * Nor should the brief 
 periods allowed for meals be deducted from the time of ser\ace 
 in order to break its continuity. The statute uses the terms 
 "sixteen consecutive hours," and ** continuously on duty"; 
 and, while literally speaking, '^ consecutive" means succeeding 
 one another in regular order, with no interval or break, and the 
 word ''contiuuously" means substantially the same, yet it is 
 manifest that no such strict or literal meaning of these expressions 
 waa intended. * * * I can not beUeve that by the expres- 
 sions ''sixteen consecutive hours" and ''continuously on duty" 
 Congress intended to include only those who are employed for 16 
 hours without interruption for meals or otherwise. Congress 
 was no doubt mindful of the fact that no laboring man works 
 for 16 consecutive hours, or is on duty continuously for that 
 period without food or drink, except in cases of dire necessity, 
 and the Act should not be so restricted. It may be said that 
 trainmen are on duty and subject to call during meal hours, but 
 this is only because such is the will of their employers. If a 
 railroad company may relieve its employees from service during 
 meal hours, it may also refieve them from service every time a 
 freight train is tied up on a side track waiting for another train, 
 and thus defeat the very object the le^slature had in view. The 
 brief interruptions for meals were "trifling interruptions," in the 
 language of the court in the Atchison Case [220 U. S., 37]. — RudJcin, 
 D. J., pp. 626, 627, 628. [Cited with apparant approval by the 
 Supreme Court in Missouri, K. <& T- Ry- Co. of Texas v. TJ. S. 
 231 U. S., 112.] 
 
SCOPE. 139 
 
 U. S. V. NoHhem Pacific Ry. Co., 213 Fed., 539. 
 
 District Court, Eastern District of Washington, April 21, 1914. 
 The sole question presented for decision is, therefore, does 
 a definite lay on or release from duty for a period of 1 hour and 30 
 minutes, under the circumstances stated, break the continuity 
 of the service within the meaning of the law ? I am of the opinion 
 that it does not. In the case of 77. S. v. Chicago, M. & P. S. 
 Ry. Co., 197 Fed., 624, I held that a lay off of from 30 to 45 
 minutes for breakfast and of about 1 hour each for the midday 
 and evening meals did not break the continuity of the service. 
 I further held in the same case that an indefinite lay off of 3 hours 
 while the train crew was awaiting the arrival of a helper engine 
 at a small way station did not break the continuity of the service. 
 This decision was cited with apparent appro\ al in the case of Mis- 
 souri, K. & T. Ry. Co. of Texas v. V. S., 231 II. S., 112. That case, 
 it seems to me, is controlling here. The purpose of the statute is 
 plain, and it must be so construed as to promote its policy. The 
 hours of service of railway trainmen are long at best, leaving only 
 8 hours for rest and recreation, and if this brief period can be 
 broken into fragments the purpose and policy of the law will be 
 entirely frustrated. If a train crew may be laid off for an hour 
 and a half at one point to suit the con\ enience or necessities of the 
 company, it may oe laid off for a like period at another, and the 
 members of the crew thus wholly depiived of any substantial 
 period for either sleep or rest. If this crew had not been released 
 from duty at Auburn, the members would have been compelled 
 to remain idle until the time of departure arrived, and the release 
 for the brief period allovxd by the company permitted them to do 
 little else. The release was of no benefit to the crew and could 
 subserve no substantial purpose except to obviate the penalty 
 imposed by law. Perhaps it can not be said as a matter of law 
 in all cases whether a release from duty for a fixed period of time 
 will or will not be sufhcient to break the continuity of the service. 
 No doubt in extreme cases the court may declare as a matter of 
 law that a given period is so short as not to break the continuity 
 of the serv^ice, or that another period is so long as to break the 
 continuity of the service; but between these extremes there is 
 a twilight zone, w^here the question becomes a mixed one of law 
 and fact. This case, however, has been submitted to the court 
 for decision, and whatever inferences are to be drawn from the 
 admitted facts must be drawn by the court, and under the ad- 
 mitted facts I am of the opinion that the plain spirit and policy 
 of the law has been violated. — Rudkin, 2>. ./., pp. 540-541. 
 
 Oshome's Admr. v. Cincinnati, N. 0. cfe T. P. Ry. Co., 1 64 S. W., 818; 
 U. S. V. Northern Pacific Ry. Co., D. C, W. D. Washington, 
 Feb. 13, 1914, Cushman, D. J. [unreported]. See also: 
 
 NoHh Carolina R. Co. v. Zachary, 232 U. S., 248. 
 Supreme Court, February 2, 1914. 
 
 Again, it is said that because deceased had left his engine 
 and was going to his boarding house, he was engaged upon a 
 personal errand, and not upon the carrier's business. Assuming 
 (what is not clear) that the evidence fairly tended to indicate 
 the boarding house as his destination, it nevertheless also appears 
 
140 HOXTRS OF SERVICE ACT. 
 
 that deceased was shortly to depart upon his nin, having just 
 
 Erepared his engine for the purpose, and that he had not gone 
 e^^ond the Umits of the railroad yard when he was struck. 
 There is nothing'to indicate that this brief visit to the boarding 
 house was at all out of the ordinary, or was inconsistent with his 
 duty to his employer, it seems to us clear that the man was 
 still ''on duty," and employed in commerce, notwithstanding 
 his temporary absence from the locomotive engine. [Missouri, 
 K cfe T. By. Co. of Texas v. U. S., 231 U. S., U2].~-Pitney, 
 Justice, p. 260. 
 
 — (ii). And a respite from duty even for a reasonably extended interval, 
 does not break the continuity of service unless tke duration of such 
 interval is definitely anticipated and predetermined at its inception. 
 
 V. S. V. Chicago, M. cfc P. S. Ry. Co., 197 Fed., 624. 
 
 District Court, Eastern District of Washington, April 10, 1912. 
 The train crew in question ran from vSeattle to I^aconia, and 
 on the 16th day of June, 1911, left the former station at about 
 1.30 a. m. At some point on the line they were to be met by a 
 helper to assist them up the mountain grade. They arrived at 
 the point where the helper was to join them at 9.55 a. m. Upon 
 their arrival there the helper was delayed for some cause, and the 
 trainmaster, or some officer of the railway company, immediately 
 relie\ed the crew from duty until the helper should arrive. 
 This, as it afterwards transpired, was a period of about three 
 hours, or not until 1 o'clock p. m. The crew then proceeded 
 upon its way, and arrived at its destination at about 7.25 p. m. 
 If the three hours lay-off is deducted from the time of service the 
 crew was not employed for 16 consecutive hours, but if not so 
 deducted the time of service exceeded that limited by law. If 
 this crew had been laid off for a definite period of three hours at 
 a terminal or other place where the crew might rest, such lay-off 
 would no doubt break the continuity of the service. Atclii- 
 son Case [220 U. S., 37], supra. But such was not the case here. 
 The crew was laid off for an indefinite period, awaiting the 
 arrival of a delayed engine. They did not know at v/hat moment 
 the train might move, and had no place to go except to a bunk 
 house or remain in the caboose. They chose the latter course. 
 This, in my opinion, was a trifling interruption. — RudHn, D. J., 
 pp. 628-629.. [Cited with apparent approval by the Supreme 
 Court in Missouri, K, cfc T. Ry. Co. of Texas v. U. S., 231 U. S., 
 112.J 
 
 Z7. S. V. Denver & R. G. R, Co., 197 Fed., 629. 
 
 District Court, District of New Mexico, May 1, 1912. 
 
 But it is said by defendant that, however this may be, there 
 was no consecutive service of 16 hours because of the layout of 
 55 minutes at Osier. This latter, as we have seen, was in order 
 that east-bound train No. 442 might pass. The record shows 
 that the hour of arrival of this latter was uncertain, except that 
 it seems to have been momentarily expected. It might come 
 in a few minutes or it might not arrive m an hour. Pending its 
 arrival the train here involved was rendered safe by being put 
 into a siding and the switch locked. As a matter presumably of 
 
SCOPE. 141 
 
 economy, the headlight was extinguished. All this done, the 
 crew retired to the caboose, the brakemen to utilize the uncer- 
 tain interval in a nap, the conductor in reading. There was, 
 however, no release of the crew by the train dispatcher, and 
 their pay covered the time they were held at Osier. It is said 
 that upon this state of facts the crew ceased to be on duty during 
 the wait upon the siding. This, however, is clearly untenable. 
 True, as the conductor in effect testified, they ceased to be re- 
 sponsible during this period for the operation of the train for 
 it was not in motion. It is evident, however, that they became 
 instead intrusted with its custody. It was further their duty 
 to know immediately of the arrival of No. 442, whether this 
 occurred in 10 minutes or in 55, and immediately upon such 
 arrival they were charged with the responsibility of relighting 
 the headlight, leaving the siding, and proceeding to destination. 
 As long ago as Milton it was said: ''They also serve who only 
 stand and wait.'' It detracts nothing irom this great truth 
 as applied to the present situation that the tired crew at this 
 hour of the night utilized the wait in sleep or in a book. They 
 were there on pay; they were there in charge of the train; they 
 were there subject to active duty as soon as No. 442 whistled 
 for the station. Suppose that the latter train instead of taking 
 55 minutes to arrive had arrived in only 10. Would it be con- 
 tended that such an interval would have broken the continuity 
 of duty? And yet the principle in each case is precisely the 
 same. We are of opinion that such a view of the statute as is 
 here contended for by the defendant would ill accord with the 
 purpose of the law as declared in its title, "To promote the safety 
 of employees and travelers upon railroads by limiting the hours 
 of service of employees thereon." A delay under the circum- 
 stances here disclosed constituted at most sim])ly "a trivial 
 interruption," such as under TJ. S. v. Atchison, T. <& S. F. Ry. 
 Co., 220 U. S., 37, ''will not be considered." To hold otherwise 
 will be practically to nullify the statute. — Pope, D. J., p. 632. 
 [Cited with apparent approval by the Supreme Court in Missourij 
 K <& T. Ry. Co. of Texas v. V. S., 231 U. S., 112.] 
 
 U. S. V. Northern Pacific Ry. Co., D. C, W. D. Washington, 
 Feb. 13, 1914, Cushman, D. J. [unreported]. See also: 
 
 Missouri; K. & T. Ry. Co. of Texas v. TJ. S., 231 U. S., 112. 
 Supreme Court, November 10, 1913. 
 
 One of the delays was while the engine was sent off for water 
 and repairs. In the meantime the men were waiting, doing 
 nothing. It is argued that they were not on duty during this 
 period, and that if it be deducted, they were not kept more than 
 16 houi-s. But they were under orders, liable to be called upon 
 at any moment, and not at liberty to go away. They were none 
 the less on dutv when inactive. Their duty was to stand and 
 wait. [TJ. S. V. Chicago, M. & P. S. Ry. Co., 197 Fed., 624; 
 TJ. S. V. Denver <& R. G.R. Co., 197 Fed., 629]. Holmes, Justice, 
 p. 119. [Affirming the judgment of the Circuit Court of Appeals 
 for the 5th Circuit and of the District Court for the Eastern Dis- 
 trict of Texas (both decisions unreported).] 
 
142 HOURS OF SERVICE ACT. 
 
 (hi). Such a release from service, in order to suspend the operation 
 of the Act, must be granted in good faith; at a time and place 
 and under circumstances that permit of rest and recuperation; 
 must be for a definite and substantial interval of time ; and must 
 be predetermined at the inception of such period. 
 U. S. V. Northern Pacific By. Co. [unreported]. 
 
 District Court, Western District of Washington, Feb. 13, 1914. 
 
 An employee goes on duty, within the meaning of the law, 
 at the time he reports for work, as required by the rules of the 
 company, and begins the work of looking after his train and seeing 
 that it is in proper condition for road service. He remains on 
 duty while he is in charge of his train, performing service in and 
 about the same, or held responsible for the performance of such 
 service should the occasion therefor arise. 
 
 An employee is not off duty until he is relieved from all 
 responsibility as to his train and becomes his own free agent to 
 go and do as he pleases. Brief interruptions, such as time 
 necessaiy for meals while on the road, meeting trains, waiting 
 for orders, delays on account of congestion of traflic, can not be 
 considered as time off duty, although during such detention no 
 active service whatever may be required of such employee. 
 
 Of course, what is a brief interruption is a relative term; in 
 determining what a brief interruption is as covered by this 
 instruction you will take into consideration what I have akeady 
 told you. You can understand if a man was engaged in a " tug 
 of war" that if he had 2 hours and 45 minutes off it would be a 
 substantial rest from that occupation, and so here you must use 
 your practical judgment and experience as men in determining 
 whether this interruption in this service such as is claimed by 
 the defendant was of substantial benefit for the purpose that 
 Congress intended this law, to enable the men to revive and re- 
 cuperate and rest, so that they might renew their service and 
 duty. After an employee in train service starts on his trip he 
 can not be said to be off duty, within the meaning of the law, 
 until he reaches the end of his rim, unless before reaching; his 
 destination he is released from all service in connection with his 
 train or from all responsibihty therefor should the occasion arise, 
 and is given an unqualified, bona fide release, and for a definite 
 and substantial period. 
 
 A honafide release is one given to the employee for the pur- 
 pose of giving him an opportunity for rest, and not given merely 
 to cover a delay at a certam place which the company knows must 
 be encounteied, hoping thereby to evade the law. * * * 
 
 If it appeared to the company that a certain train would 
 probably be delayed at a station for a certain time, by reason of 
 a congested condition of traffic or on account of having to coal 
 the engine by baud, and the carrier notified the employees on 
 that train that they were released for a certain time, which was 
 approximately the time the company saw they would be delayed 
 at that place, and the only reason for such release was for the 
 pm-pose of extending the time within which the employees 
 might operate their train, and neither the purpose nor effect of 
 
SCOPE. 143 
 
 the release was to afford the trainmen any rest, the jury would 
 be warranted in finding that such release was not honajide but 
 merely a subterfuge. — Cushman, D. J. 
 
 6. The service of operators or other employees handling train orders in 
 continuously operated offices is limited by the Act to 9 hours in 
 a 24-hour period ; that of such employees in offices operated only 
 during the daytime to 13 hours out of 24; except in cases of 
 emergency, when the service of either class of employees may be 
 extended 4 hours on not exceeding 3 days in any week. 
 
 * * * Provided, That no operator, train dispatcher, or other em- 
 ployee who by the use of the telegraph or telephone dispatches, reports, 
 transmits, receives, or delivers orders pertaining to or affecting train 
 movements shall be required or permitted to be or remain on duty 
 for a longer period than nine hours in any twenty-four-hour period 
 in all towers, offices, places, and stations continuously operated night 
 and day, nor for a longer period than thirteen hours in all towers, 
 offices, places, and stations operated only during the daytime, except 
 in case of emergency, when the employees named in this proviso may 
 be permitted to be and remain on duty for four additional hours in a 
 twenty-four-hour period on not exceeding three days in any week: — 
 Sec. 2, Act March 4, 1907 [S4 Stat, at L., 1415, 1416.'] 
 
 U. S. V. Missouri, K. & T. Ry. Co., 208 Fed., 957. 
 
 District Court, District of Kansas, January 13, 1913. 
 
 In so providing it classified the offices in which telegraphic 
 operators engaged in handling train orders worked as day offices 
 only and those open for the transaction of such business during 
 both the day and night. As to the latter class, it limited the 
 hours of service of such operators to 9 out of 24. As to the 
 former class, where the office was open for business only during 
 the daytime, it limited the hours of service of such operators 
 to 13, unless in case of emergency the period of service should be 
 extended to 17 hours without violating the statute. Such ap- 
 pears to be the reasonable construction of the Act and the one 
 given, at least in j)rinciple, from those courts in which it has 
 received consideration. [ Z7. S. v. Atchison, T. c& S. F. Ry. Co,, 
 220 U. S., 37; U. S. v. St. Louis S. W. Ry. Co. of Texas, 189 Fed., 
 954.]—Polhclc, D. J., p. 959. 
 
 (a). "Places," as used in the Act, defined, 
 
 ''Towers, offices, places, and stations." — The 
 phrase "towers, offices, places, and stations" is inter- 
 preted to mean particular and definite locations. The 
 purpose of the law and of the proviso for nine hours 
 of service may not be avoided by erecting ofiices, 
 stations, depots, or buildings in close proximity to 
 each other and operating from one a part of the day 
 while the other is closed, and vice versa. The statute 
 is remedial in its intent and must have a broad con- 
 struction so that the purpo-e of the Congress may not 
 be defeated. — Adm. Ruling No. 287-f. 
 
144 HOURS OF SERVICE ACT. 
 
 See also: 
 
 *Z7. S. V. Missouri Pacific Ry. Co. [unreported]. 
 
 District Court, Western District of Missouri, May 8, 1913. 
 Furthermore, the different words used cover every sort of 
 a connection with the transmission of such orders, not limited 
 to the mere issuance of them, or mere handling of them, as one 
 from whom they originally emanated, or his agent. But it 
 would seem to be anybody who dispatches, reports, transmits, 
 receives, or dehvers such orders, or those in any way having any- 
 thing to do with the putting of such orders into commission and 
 final execution. And this is made to my mind more certain 
 from the fact that the ''places" where these employees work as 
 disclosed clearly contemplate that such a per. on who is within 
 the purview of this Act is not limited to the regular places where 
 operators and train dispatchers and tho e of the specific char- 
 acter insisted iipon by defendant work; but the Act says, towers 
 and offices and stations and places. So that very clearly any 
 place where any man works, and has anything to do with the 
 use of a telephone in the dispatching, reporting, tran-^mitting, 
 receiving, or deUvery in any sense of orders is meant by the 
 Act. — Van VaTkeriburgh, D. J. 
 
 7. The proviso in section 2 of the Act applies to all offices in which 
 train orders are handled affecting the movement of interstate 
 traffic, irrespective of the number or the frequency of such orders. 
 U. 8. V. Atchison, T. <& S. F. Ry. Co., 220 U. S., 37. 
 
 Supreme Court, March 13,1911. 
 
 The antithesis is between places continuously operated ni^ht 
 and day and places operated only during the daytime. We thmk 
 that the Government is right in saying that the proviso is meant 
 to deal with all offices, and if so, we should go farther than other- 
 wise we might in holding offices not operated only during the 
 daytime as falling under the other head. A trifling interruption 
 would not be considered, and it is possible that even three hours 
 by night and three hours by day would not exclude the office 
 from all operation of the law, and to that extent defeat what we 
 believe was its intent. — Holmes, Justice, pp. 43-44. 
 v. S. V. Atlantic Coast Line R. Co., 211 Fed., 897. 
 
 Circuit Court of Appeals, 4th Circuit, February 3, 1914. 
 
 The terms employed are plainly intended to include every 
 sort of place where train orders are handled, however infre- 
 quently, by telegraph or telephone. There is nothing to suggest 
 that the permitted hours on duty, whether 9 or 13, are deter- 
 mined by the number of train orders handled, if they are handled 
 at all, or by the proportion of time which the employee spends in 
 that particular service. Surely the descriptive words, "towers, 
 offices, places, and stations," negative any intention to confine 
 the 9-hour limitation to those offices, however designated, in 
 
 * The judgment of the District Court in this proceeding was reversed by the 
 Circuit Court of Appeals for the 8th Circuit, in Missouri Pacific Ry. Co. v. ^7. 5., 211 
 Fed., 893, but the scope of the word "places," as defined by the District Court, is 
 apparently unaffected by the order of reversal. 
 
SCOPE. 145 
 
 which the principal work of the operator is connected with the 
 movement of trams. In short, we deem it beyond dispute that 
 the classification of an office is fixed by the length of time it is 
 kept open, and not in the least by the nature of the duties per- 
 formed, if only those duties include the handling of train orders 
 as occasion may require. — Knapp, G. J., p. 900. 
 
 (a). The term "orders," as used in the Act, comprehends every com- 
 munication of information or instruction relative to the movement 
 of any train. 
 
 U. S. V. Houston B. d; T. Ry. Co., 205 Fed., 344. 
 
 Circuit Court of Appeals, 5th Circuit, May 5, 1913. 
 
 It is contended on behalf of the railroad company that the 
 word ''orders" in the statute must be construed to mean what 
 the railroads technically call ''train orders"; that is, such orders 
 as emanate from the train dispatcher's office and are reduced to 
 writing and handed to the conductor and engineer of a train. We 
 can not agree with this contention. To do so would be to pervert 
 the plain meaning oi the statute. An order affecting train move- 
 ments may be given by a wave of the hand or the flash of a lan- 
 tern, and its disobedience might cause as dire consequences as the 
 failure to obey a written message. Necessarily, an order affect- 
 ing train movements can be given by any subordinate having to 
 do with trains and switches such as a towerman. 
 
 The raih'oad fuither contends, however, that the telephone 
 between these towers is not used to transmit "orders" in any 
 sense of the word. Regarding this, it is evident, from the testi- 
 mony of the towerman quoted above, that they use the telephone 
 to repeat signals from the trainmen, which indicate the routing of 
 the train as originally made by the train master. That they give 
 information over it that trains have started, on receipt of which 
 information the other towerman must throw switches, line up 
 tracks, and hold other trains, as a matter of duty and without 
 discretion on his part, and that they run trains in both directions 
 over a single track and instruct the other towermen by the tele- 
 phone as to holding traffic. It is therefore evident that these 
 towermen use the telephone to dispatch, report, transmit, receive, 
 and deliver orders appertaining to, or affecting, train movements. 
 To say that these towermen only used the telephone for the giv- 
 ing of information, not covered by the statute, would be the 
 merest sophistry. Indeed, it is difficult to conceive how any- 
 thing could be a more imperative order affecting train move- 
 ments than for one towerman to notify another that he had 
 started a train, at the same time telling him to hold all traffic in 
 the opposite direction over the same track. — Foster, D. J"., pp. 
 347-348. 
 
 U. S. y. Cleveland, C C. & St. L. Ry. Co. [unreported]. 
 
 District Court, Southern District of Ohio, December 12, 1911. 
 These two men, Davidson and Betts, were employed as 
 switchmen at the switches you have heard described, both orally 
 and by illustration on the blackboard. There is no dispute that 
 they received communications relative to the movement of trains 
 and. received them by telephone. Their end of the telephone was 
 60611—15 10 
 
146 HOURS OF SERVICE ACT. 
 
 at what has been called the "shanty," at or near the switches. 
 It was there that the communications were received, and so it 
 may fairly be said that that was a place where they receive com- 
 munications, which were, in effect, orders. That is using ths 
 word "order" in its ordinary plain meaning, as we would all un- 
 derstand from the use of the word what its meaning is. And so, 
 under the testimony here, it would seem as if, when its ordinary 
 plain meaning is given to the word "order" or "orders," that the 
 defendant had failed to comply with the law. — Hollister, D. J. 
 * U. S. V. Missouri Pacific Ry. Co. [unreported]. 
 
 District Court, Western District of Missouri, May 8, 1913. 
 
 Now, the term "order" as used here can not be limited to an 
 interpretation placed upon it by the railroad itself. It can not be 
 limited to any formal kind of an order, any order reduced to 
 ^vriting, originating in any specific form, and put in circulation 
 in any specific form; but it is any kind of an order which means 
 a direction, something emanating, for that purpose at least, from 
 a controlling authority, which another man, who receives it, is 
 bound to and will recognize and obey. Any order of that kind 
 is the kind of an order that the law is broad enough to cover, and 
 I do not think that a highly remedial Act of this nature should be 
 limited to any specific course of business, or to any narrow 
 method of operation, but, on the contrary, that the law should 
 be broad enough to adapt itseK to anything reasonably and fairly 
 within the implication of its terms, and coming fairly and reason- 
 ably within the spirit and object that the law was intended 
 to effect and that, to my mind, would certainly be anything 
 that affected the movement or pertained to the movement 
 of the train in any particular in connection with interstate com- 
 merce. * * * 
 
 In other words, I believe that any order or any direction or 
 communication by telephone or telegraph which has the operative 
 effect of an order which is to be followed and obeyed by the em- 
 ployees of the company is an order which the terms of this law 
 are broad enough to cover and the spirit of the law fully covers. 
 [Citmg U. S. V. Houston B. & T. Ry. Co,, 205 Fed., SU]—VanVal' 
 Jcenburgh, D. J. 
 But see: 
 Z7. S, V. Chicago, R. I. & P. Ry. Co. [unreported]. 
 
 District Court, Western District of Missouri, March 5, 1914. 
 
 The second point for consideration is whether defendant's 
 employees are telegraph operators, on duty within the meaning 
 of the proviso, by reason of the alleged statement that "if the 
 
 *The judgment of the District Court in this pocceding was reversed by the 
 Circuit Court of Appeals for the 8th Circuit, in Missouri Pacific Ry. Co. v. U. S., 
 211 Fed., 893, but in reviewing the scope of the term '^orders/' as defined by the 
 District Court, this expression by the Court of Appeals is to be noted: 
 
 In other words, Congress intended the 9-ho ir provision to apply to employees whose primary duty 
 was to dispatch, report, transaiit, receive, or deliver orders pertaining to or affecting train move- 
 ments. We do not mean by this that the word "orders" should be limited to technical train orders 
 described in what are known as standard rules for the raove:nent of trains. Congress was dealing 
 with a class of employees engaged primarily in a particular ser\dce, and the mere form of tlie order 
 pertaining to or affecting train movements is immaterial if it is dispatched, reported, transmitted, 
 received, or delivered by the use of the telegraph or telephone,— CarZand, C. J., p. 896. 
 
SCOPE. 147 
 
 said electric staff machine so installed at the station of Winthrop; 
 Missouri, had become out of repair or failed to work, it would 
 have been the duty of the said M. M. Whalen and W. K. Cousins, 
 respectively, under the direction of the chief dispatcher of the 
 defendant, by the use of the telegraph, to dispatch, report, 
 transmit, receive, and deliver orders pertaining to or affecting the 
 movement of defendant's trains engaged in interstate commerce 
 into and out of the said station of Winthrop, Missouri." If the 
 statement respecting their duties had ended here, I should say 
 that they were employees within the meaning of the proviso, 
 whose consecutive hours of service should be limited to 9. * * * 
 As a matter of fact, the record presents no instance of an em- 
 ployee ti-ansmitting orders by telephone or telegraph who 
 worked beyond the 9-hour period. The machines have never 
 yet failed to work. * * * j^ the face of this declaration the 
 presumption of innocence should be indulged, and a concrete 
 violation must be awaited. — Van ValkenhurgTi, D. J. 
 
 8. Tlie classification of an office as ** continuously operated" or "oper- 
 ated only during the daytime" is determined by the length of 
 time it is kept open, and not by the character of the service therein 
 performed, provided only that such service comprehends the han- 
 dling of train orders as occasion may require. 
 U. S. V. Atlantic Coast Line R. Co., 211 Fed., 897. 
 
 Circuit Court of Appeals, 4th Circuit, February 3, 1914. 
 
 The answer to tms argument is twofold. In the first place, 
 we find nothing in the language of the Act to support such a dis- 
 tinction. The terms employed are plainly intended to include 
 every sort of place where tram orders are handled, however infre- 
 quently, by telegraph or telephone. There is nothing to suggest 
 that the permitted hours on diity, whether 9 or 13, are determined 
 by the number of train orders handled, if they are handled at all, 
 or by the proportion of time which the employee spends in that 
 particular service. Surely the descriptive words, ^'towers, 
 offices, places, and stations," negative any mtention to confine 
 the 9-hour limitation to these offices, however designated, in 
 which the principal work of the operator is connected with the 
 movement of trains. In short, we deem it beyond dispute that 
 the classification of an office is fixed by the length of time it is 
 kept open, and not in the least by the nature of the duties per- 
 formed, if only those duties include the handling of train orders 
 as occasion may require.— Kn/ipp, C. J., p. 900. 
 See also U. S. v. Atchison, T. & S. F. Ry. Co., 177 Fed., 115. 
 
 (a). An office is "continually operated," within the purview of the Act, 
 if it is kept open for such a number of hours in the aggregate as 
 necessarily to include a material or substantial portion of the night. 
 ''Continuously Operated." — The Commission 
 interprets the phrase ''continuously operated night and 
 day" as applying to aU offices, places, and stations 
 operated during a portion of the day and a portion of 
 the night a total ot more than thirteen hours. 
 
 The phrase "operated only during the daytime" 
 refers to stations which are operated not to exceed thir- 
 
148 HOTTES OF SEBVICE ACT. 
 
 teen hours in a twenty-four hour period, and is not con- 
 sidered as meanino^ that the operator thereat may be 
 employed only during the daytmie. — Adm. Ruling No. 
 287-g: 
 U. S. y. AUantic Coast Line R. Co., 211 Fed., 897. 
 
 Circuit Court of Appeals, 4th Circuit, Februarv 3, 1914. 
 
 It is conceded tnat an office need not Uterally be kept open 
 every minute of the 24 hours in order to be witnin the 9-hour 
 restriction. But if it may be closed for one or more substantial 
 intervals of time and still remain in the 9-hour class, where shall 
 the line of division be drawn? In the Atchison Case, above 
 cited, the office was shut from noon to 3 p. m., and from mid- 
 night to 3 a. m., or 6 hours in all out of the 24, and the Supreme 
 Court strongly intimated, though the point was not directly 
 involved, that it should be classed as a 9-hour office, because the 
 proviso was meant to deal with all offices, and therefore "we 
 should go further than otherwise we might in holding offices not 
 operated only during the daytime as falUng under the other 
 head." But where is the logical place to stop? The words 
 ** operated only during the daytime are quite as much entitled 
 to be made enective as the words '* continuously operated night 
 and dav." Manifestly, if we look only at the surface meaning 
 of words, these two definitions are inconsistent, or at least over- 
 lap each other, since there must be many offices which could 
 not be fairly described as ''operated only during the daytime'* 
 and yet are not, in any absolute sense, ''continuously operated 
 night and day." For example, in a case ai^ed at the same 
 time with this, the office was open throughout the 24 hours, 
 except from 1.30 a. m. to 6.30 a. m. To say that such an office 
 is operated only in the daytime is to do violence to the commonest 
 uncferstanding. 
 
 This is plainly a case where the natural significance of terms 
 must yield to the necessity for giving to the entire proviso such 
 reasonable meaning as will promote its beneficial purpose. If it 
 seems a strained and unwarranted construction to hold that an 
 office which is generally closed at 10.15 p. m., and never later 
 than 11, and kept closed till 6.30 a. m., is nevertheless "continu- 
 ously operated night and day," is it not equally strained and un- 
 warranted to hold that an office which is kept open from 6.30 a. m. 
 to 10.15 p. m.^ or later, is nevertheless "operated only during the 
 daytime." Since the office in question must be assigned to one 
 class or the other, we are of opinion on the whole that it will be 
 more correctly and usefully placed in the night-and-day class than 
 in the daytime class. If this conclusion gives greater effect to 
 the words "operated only during the daytime" than to the words 
 "continuously operated night and day," we think the objects of 
 the law requke that preference be accorded to a construction 
 which recognizes the legislative intent to permit 13 hours of serv- 
 ice in offices kept open only such number of hours in the aggregate 
 as do not materially or substantially exceed the length of an ordi- 
 nary day, and to prohibit more than 9 hours service in offices 
 kept open such number of hours in the aggregate as necessarily 
 
SCOPE. 149 
 
 include a material or substantial portion of the night. — Knapp, 
 a J., pp. 901-902. 
 
 The defendant contends that " continuoasly " means without 
 cessation, and that the offices, etc., ''continuously operated ni^ht 
 and day" can only include places operated ^vithout cessation 
 through the night and day. The context and the purpose of the 
 statute shows that this is not the sense in which the words were 
 used. The statute was intended to cover all telegraph offices. 
 [U. S. V. Atchison, T. & S. F. Ry. Co., 220 U. S., 37.] If the 
 defendant's construction were adopted, it would cover only day 
 offices and offices operated throughout the day and night, leaving 
 out the offices operated during the day and into the night. There 
 is some reason for attributing the meaning of habitually or regu- 
 larly to the word '' continuously" ; but the plain construction and 
 that which will give the statute its full signification is to take the 
 whole phrase "offices, places, and stations continuously operated 
 night and day" to mean offices whose operation is continued 
 from the day into the night. The statute assumes that all offices 
 will be operated during the daytime, and for those operated dur- 
 ing the daytime only it makes the 13-hour requirement; for those 
 which are operated during the daytime with a continuance of 
 operation into the night it makes the 9-hour requirement. — 
 Woods, C. J. [concurring], p. 902. 
 But see: 
 
 TJ. S. V. Grand Rapids (& I. Ry. Co. [unreported]. 
 District Court, Western District of Micliigan, Dec. 31, 1912. 
 
 Can it be said that an office which is closed for seven con- 
 tinuous hours from 9.30 o'clock p. m., to 4.30 o'clock a. m., or 
 for seven and one-half continuous hours from 11 o'clock p. m. to 
 6.30 o'clock a. m., is one '* continuously operated night and 
 day" ? To so hold would do violence to the ordinary and plain 
 meaning of the language used. The period during which each 
 of these offices was closed constitutes the major part, and during 
 the summer season almost the whole of the night time or hours 
 of darkness. It is also to be noted that the time during which 
 these offices were closed is the part of the day usually devoted 
 to sleep and rest. The service required of these operators did 
 not prevent their obtaining sufficient rest and recreation and 
 did not endanger in any degi-ee the persons or property of em- 
 ployees or patrons of the railroad and, therefore, did not con- 
 travene in any way the remedial purpose of the Act of Con- 
 gress, — Sessions, D. J. 
 
 (b). Trifling interruptions do not break the continuity of operation of 
 an office otherwise continuously operated. 
 U. S. V. Atchison, T. cfc S. F. Ry. Co., 220 U. S., 37. 
 Supreme Court, March 13, 1911. 
 
 The antithesis is between places continously operated night 
 and day and places operated only during the daytime. We 
 think that the Government is right in saying that the proviso is 
 meant to deal with aU offices, and if so, we should go farther than 
 otherwise we might in holding offices not operated only during 
 the daytime as falling under the other head. A trifling inter- 
 
150 HOURS OF SEEVICE ACT. 
 
 rution would not be considered, and it is possible that even three 
 hours by night and three hours by day would not exclude the 
 office from all operation of the law, and to that extent defeat 
 what we believe was its intent. — Holmes, Justice, pp. 43-44. 
 
 U. S. V. St Louis S. W. By. Co. of Texas, 189 Fed., 954. 
 
 District Court, Western District of Texas, August 16, 1911. 
 In the present case the office was closed each day of 24 
 hours four times for the period of 1 hour only. The court is 
 clearly of the opinion that the office was, within the contempla- 
 tion of law, continuously operated night and day. If the de- 
 fendant may interrupt the continuity of the working hours by 
 closing the office for an hour and thus evade the statute, why 
 may it not do so by closing the doors for a period of 30 or even 
 15 minutes ? But it can do so in neither case. 
 
 It is not within the power of a carrier by resorting to shifts 
 and evasions of any kind or character to nullify a statute obvi- 
 ously intended, as was the present Act, to promote the safety of 
 employees and of the traveling public. — Maxey, D. J., p. 964. 
 
 V. S. V. Missouri, K. & T. Ry. Co., 208 Fed., 957. 
 District Court, District of Kansas, January 13, 1913. 
 
 On the contrary, it is contended by defendant, as the 10 
 hours of service performed by its operators were not continuous, 
 but were broken by the intervention of 1 hour, and as the office 
 was not open for the purpose of telegraphic communications 
 regarding the movement of trains from 6 a. m. until 8 a. m. each 
 day, it was not a night and day office within the meaning of the 
 section of the Act quoted. That is to say, it is the contention 
 of defendant neither the hours of service of its employees nor the 
 operation of its Coffeyville office were so continuous as required 
 by the Act to make it both a night and day office. 
 
 From the facts as stipulated I am of the opinion, on both au- 
 thority and the very reason of the matter, defendant has violated 
 the Act as charged in counts 1 to 6, inclusive, of the amended 
 petition. — Pollock, D. J., p. 958. 
 
 U. S. V. Atchison, T. cfc S. F. Ry. Co., 177 Fed., 115; U. S. v. 
 Atlantic Coast Line R. Co., 211 Fed., 897. See also U. S. v. 
 Chicago, M. dc P. S. Ry. Co., 197 Fed., 624. 
 
 "Period," as used in the Act, defined: 
 Atchison, T. & S. F. Ry. Co. v. U. S., 177 Fed., 114. 
 
 Circuit Court of Appeals, 7th Circuit, January 4, 1910. 
 
 The position of the Government is therefore reduced to its 
 contention respecting the word ''period," that ''period" is "a 
 term," "a cycle," something "continuous" between a definite 
 beginning and a de&iite end — whereby invoking the canon of 
 strict construction in criminal statutes, the period was a period 
 of 12 hours, notwithstanding the intermission. 
 
 We can not concur in this view. The statute was passed 
 with custom as a background. According to custom, 9 hours 
 work unquestionably means 9 hours actual employment, 
 whether broken by an intermission for lunch or on account of 
 some other occasion. According to custom, too, especially in 
 
SCOPE. 151 
 
 railroading in the new western States, the actual service of em- 
 ployees is divided, necessarily divided, throughout the day to 
 correspond with the arrival and departure of trains. Certainly 
 Congress did not intend to override these existing customs; mak- 
 ing it necessary either that the railroad company should not ^ive 
 intermissions, or that the employees should be paid notwith- 
 standing the intermissions; and making it necessary at many 
 stations (presumably well known to Congress) that the railroad 
 should employ a different telegraph operator for every train that 
 came and went (trains on western roads being often more than 
 9 hours apart), irrespective of the fact that the actual service 
 for each train was a very short period of time. The contention 
 of the Government gives to this word ''period,'' all things consid- 
 ered, a highly strained meaning. Disregarding a meaning so 
 strained, and reading the word in connection with the context, 
 and in the light of ordinary custom, we are clear that the acts 
 proven do not constitute an offense within the meaning of the 
 law. — Grosscuj), C. J., p. 118. [Affirmed by the Supreme Court 
 in U. S. V. Atchison, T. cfe S. F. By. Co., 220 U. S., 37.] 
 
 Per Contra: 
 
 U. S. V. Atchison, T. & S. F. By. Co., 177 Fed., 115. 
 
 District Court. Northern District of Illinois, April 21, 1909. 
 "Period" is the antithesis of "age^regate." It implies continuity, unbroken- 
 ness, uninterruptedness, as distinj:;ui3hed from "ae^gregate," which signifies the 
 sum or total or gross amount of separate and distinct particles. Thus reference 
 is made to the "Revolutionary period," the "Reconstruction period," the 
 "twenty-four-hour period" (as used in the Act itself), each of which expressions 
 has a definite and well-understood meaning which is diametrically opposed to 
 and which excludes the idea that is the basis of the defendant's claim. More- 
 over, immediately preceding the provision under consideration is the language 
 used by Congress in dealing with the same subject as related to railway employees 
 in general, which, as before observed, distinctly provides a limitation on' the 
 hours of service in the aggregate, as distinguished from continuous or unbroken 
 service. Landis, D. ./., p. 116. [Reversed by the Circuit Court of Appeals for 
 the 7th Circuit in Atchison, T. & S. F. Ry. Co. v. U. S., 177 Fed., 114, ante.] 
 
 (a). An operator employed for 6 hours, and then, after an interval of 3, 
 for an additional period of 3 hours, is not on duty for a longer 
 period than 9 hours in a 24-hour period. 
 U. S. V. Atchison, T. <& S. F. Ry. Co., 220 U. S., 37. 
 Supreme Court, March 13, 1911. 
 
 But if we concede the Government's first proposition it is 
 impossible to extract the requirement of 15 hours' continuous 
 leisure from the words of the statute by grammatical construc- 
 tion alone. The proviso does not say 9 '' consecutive" hours, 
 as was said in the earUer part of the section, and if it had said so, 
 or even ^'for a longer period than a period of 9 consecutive 
 hours," still the defendant's conduct would not have contra- 
 vened the literal meaning of the words. A man employed for 
 6 hours and then, after an interval, for 3, in the same 24, is not 
 employed for a longer period than 9 consecutive hours. Indeed, 
 the word consecutive was struck out, when the bill was under 
 discussion, on the suggestion that otherwise a man might be 
 worked for a second 9 hours after an interval of half an hour. 
 
152 HOURS OF SEEVICE ACT. 
 
 In order to bring about the effect contended for it would have 
 been necessary to add, as the section does add in the earlier part, 
 a provision for the required number of consecutive hours off 
 duty. The presence of such a provision in the one part and its 
 absence in the other is an argument against reading it as imphed. 
 The Government suggests that if it is not imphed a man might be 
 set to work for 2 hours on and 2 houi-s off alternately. This 
 hardly is a practical suggestion. We see no reason to suppose 
 that Congress meant more than it said. On the contrary, the 
 reason for striking out the word consecutive in the proviso given, 
 as we have mentioned, when the bill was under discussion, and 
 the alternative reference in section 2 to '' 16 consecutive hours" 
 and '' 16 hours in the aggregate, ''show that the obvious 
 possibility of two periods of service in the same 24 hours was 
 before the mind oi Congress, and that there was no oversight 
 in the choice of words. — Holmes, Justice, pp. 44-45. [Affirming 
 the judgment of the Circuit Court of Appeals for the 7th Circuit, 
 in Atchison, T. cfc S. F. By. Co. v. U. S., 177 Fed., 114.] 
 See also Wasliington, P. dh 0. By. Co. v. Magruder, 198 Fed., 
 218, 229. 
 
 -(b). Bntif such an employee remains on duty in a continuously operated 
 ofSce for more than 9 hours in a 24-hour period, it is immaterial 
 that such service may not be continuous. 
 V. S. y. St. Louis S. W. By. Co. of Texas, 189 Fed., 954. 
 
 District Court, Western District of Texas, August 16, 1911. 
 
 Finally, it is insisted that the defendant has not violated the 
 provisions of the Act, for the reason that the operators were not 
 engaged in work for a longer continuous period than 9 hours in a 
 24-hour period. And it is said by counsel in their brief: ''The 
 way these operators were handled they were on duty for two 
 distinct periods in a 24-hour period. Those two periods added 
 together made 10 hours, but neither one of them was longer than 
 9 hours. We therefore confidently submit to the court that 
 neither of the allegations of facts shows that the statute was 
 violated in letter or in spirit." 
 
 The words of the law are that no operator or train dispatcher, 
 etc., "shall be required or permitted to be or remain on duty for a 
 longer period than 9 hours in any 24-hour period in all towers, 
 offices, places, and stations continuously operated night and 
 day," et€. 
 
 It has been shown (1) that the East Waco office was one con- 
 tinuously operated night and day, and (2) that the two operators 
 remained on duty 10 hours for each day mentioned in the peti- 
 tion. Since then the office was a continuously operated night- 
 and-day office, and Scarff and Afford were permitted to remain 
 on duty for a longer time than 9 hours in a 24-hour period, it 
 follows, if the language of the Act be given its ordinary significa- 
 tion, that the defendant infringed the law in thus permitting its 
 operators to work for a longer time than that prescribed by the 
 statute. — Maxey, D. J., p. 964. 
 
SCOPE. 153 
 
 TJ. S. V. Missouri, Z. cfc T. Ry. Co., 208 Fed., 957. 
 
 District Court, District of Kansas, January 13, 1913. 
 
 It is thus seen the day operator employed by defendant at 
 this station on May 30 to June 2, both inclusive, was continu- 
 ously on duty from 8 a. m. to 7p. m., except 1 hour from 12 
 noon until 1 p. m., or 10 hours of service out of 11 consecutive 
 hours. And Night Operator Webster, during the same period, 
 extending to the morning of June 1, a similar number of con- 
 secutive hours, except 1 hour from 12 midnight to 1 a. m.,10 
 hours of service out of 11 consecutive hours. * * * 
 
 From the facts as stipulated, I am of the opinion, on both 
 authority and the very reason of the matter, defendant has 
 violated the Act as charged in counts 1 to 6, inclusive, of the 
 amended petition. — Pollock, D. J., p. 958. 
 
 10. Towermen and switch-tenders who use the telephone for the com- 
 munication of information or instructions relative to the move- 
 ment of trains are subject to the proviso in section 2 of the Act. 
 Scope of the Act— Operators. — The proviso in 
 section 2 covers every en ployee who, by the use of the 
 telegraph or telephone, handles orders pertaining to or 
 affecting train moven ents. In order to preserve the 
 obvious intent of the law this provision must be con- 
 strued to include all en ployees who, by the use of an 
 electrical current, handle train orders or signals which 
 control movements of trains. — Adm. Ruling No, 287 -d, 
 U. S. V. Houston B. <& T. Ry. Co., 205 Fed., 344. 
 
 Circuit Court of Appeals, 5th Circuit, May 5, 1913. 
 
 The following facts are undisputed. Defendant is a com- 
 mon carrier engaged in interstate comn erce and operates two 
 signal towers in its yard at Houston. Tower No. 1 is about 400 
 yards from the rr ain station and the train dispatcher's oJjice and 
 tower No. 2 is about three-quarters of a mile further out around 
 a curve. The towers are not visible from each other and are 
 connected by telephone, which, however, has no connection 
 with the train dispatcher's office or any other points. Each 
 tower controls about 25 switches and a double- track main line 
 connects with them. The towers are operated continuously day 
 and night. Two operators are en -ployed in each tower, each 
 working 12 hours continuously, and the towermen communicate 
 with each other over the telephone. * * * 
 
 It is contended on behalf of the railroad company that the 
 word ^'orders" in the statute must be construed to n]ean what 
 the railroads technically call ''train orders"; that is, such orders 
 as en anate from the train dispatcher's office, and are reduced to 
 writing and handed to the conductor and engineer of a train. 
 We can not agree with this contention. To do so would be to 
 pervert the plain meaning of the statute. An order affecting 
 train movements may be given by a wave of the hand or the flash 
 of a lantern and its disobedience nught cause as dire consequences 
 as the failure to obey a written message. Necessarily an order 
 affecting train movements can be given by any subordinate 
 having to do with trains and switches such as a towerman. 
 
154 HOURS OF SERVICE ACT. 
 
 The railroad further contends, however, that the telephone 
 between these towers is not used to transmit ''orders" in an^y 
 sense of the word. Regarding this, it is evident, from the testi- 
 mony of the towerman quoted above, that they use the telephone 
 to repeat signals from the trainmen which indicate the routing 
 of the train as originally made by the train master. That they 
 give information over it that trains have started, on receipt of 
 which information the other towerman must throw switches, 
 line up tracks, and hold other trains, as a matter of duty and 
 without discretion on his part, and that they run trains in both 
 directions over a single track and instruct the other towermen 
 by the telephone as to holding traffic. It is therefore evident 
 that these towermen use the telephone to dispatch, report, trans- 
 mit, receive, and deliver orders appertaining to, or aJffecting, train 
 movements. To say that these towermen only used the tele- 
 phone for the giving of information, not covered by the statute, 
 would be the merest sophistry. Indeed it is difficult to conceive 
 how anything could be a more imperative order affecting train 
 movements than for one towerman to notify another that he 
 had started a train, at the same time telUng him to hold all 
 traffic in the opposite direction over the same track. — Foster , 
 D. J., pp. 345, 347-348. 
 R S. V. Cleveland, C. C. db St L. By. Co. [unreported]. 
 
 District Court, Southern District of Ohio, December 12, 1911. 
 
 These two men, Davidson and Betts, were employed as 
 switchmen at the switches you have heard described, both orally 
 and by illustration on the blackboard. There is no dispute 
 that they received communications relative to the movement of 
 trains and received them by telephone. Their end of the tele- 
 phone was at what has been called the " shanty '' at or near 
 the switches. It was there that the communications were re- 
 ceived, and so it may fairly be said that that was a place where 
 they receive communications, which were in effect orders. 
 That is using the word "order" in its ordinary plain meaning, 
 as we would all understand from the use of the word what its 
 meaning is. And so, under the testimony here it would seem as 
 if, when its ordinary, plain meaning is given to the word "order" 
 or "orders," that the defendant had failed to comply with the 
 law. 
 
 But if I am wrong about that there are other considera- 
 tions which make me think it right to sustain the motion of the 
 Government; one is that it is shown, and not disputed, as I 
 understand the testimony, that it is possible, that is to say it 
 might happen, that if one of these switchmen on duty should 
 forget one of these communications, and by reason thereof a 
 tram should pass through the switch instead of stopping, what- 
 ever the cause of its passing through might be — whether neglect 
 of duty on the part of the engineer or not would not seem to be 
 material — an accident might result. So that if you consider 
 the purpose of the statute; which was to secure, so far as prac- 
 ticable, alertness and activity of mind and wakefulness on the 
 part of employees of the railroad engaged in such service, it 
 would seem that if there was any doubt about the language of 
 
SCOPE. 155 
 
 the statute, yet, if in the operation of trains at this point an acci- 
 dent could happen by reason of the exhausted or tired condition 
 of the switchman in charge in mind or body, or both, it was just 
 such a case as the Congress had in mind. And further than 
 that, and as another reason for the conchision I have thought 
 right, it was testified by Mr. Bailey this morning that the func- 
 tion performed by these switchmen was the same as if they were 
 stationed in a tower there or near by; and if I did not read all of 
 that statute I should have done so, because it provides that it 
 shall be ap])licable to persons in towers — operating in towers — 
 if I am not mistaken. — HolUster, D. J. 
 U. 8. V. Missouri Pacific By. Go. [unreported]. 
 
 District Court, Western District of Missouri, May 8, 1913. 
 
 [The employees in question were switch tenders or operators 
 located at a little house or shanty about six blocks north of the 
 Union Station in Kansas City, IVIo. In the shanty were three 
 telephones connecting with other towers and offices of the 
 Missouri Pacific Railway Co. These switch tenders reported 
 by telephone the movement of trains in either direction to one 
 01 the towers toward which the train was going. They operated 
 8 or 10 ground switches by hand, as became necessary from time 
 to time, to route these trains according to the information or 
 instruction received over the telephone. When a train was 
 about to enter the Union Station, they announced that fact by 
 telephone to the Burlington tower, and the operator in the 
 Burlington tower telephoned in reply ''Hold them'' or ''All 
 right," as the case might be. The same general rule appfied to 
 movements in the opposite direction. In case of a train coming 
 from the Union Depot they got four rings from the Burlington 
 tower, from which they understood that a train was coming. 
 
 They did not turn a switch until they got a clearance from 
 the Burlington tower. On the switch stands were signals 
 normallv set at danger and changed to signify safety by the 
 manipulation of the switch lever by these switch operators. 
 
 These switch operators also give trains signals by hand or 
 by lantern, based on information received by them over the 
 telephone. — Statement of facts.] 
 
 I have not left out of mind the suggestion by counsel — 
 and it is important — that the words "other employees" and the 
 language respecting the place of employment should be read in 
 connection with the preceding terms and designations of employ- 
 ees and, in view of the fact that this proviso excepts, out of the 
 general category of employees, a specific character of employees, 
 that in such cases the Act should be read as a whole, so as to carry 
 out the specific purpose that was in the mind of Congress in enact- 
 ing this legislation. But I think that the entire subject matter 
 dealt with should be the controlhng matter in determining to 
 what the term ejusdem generis shaU apply and be understood. 
 And, as the Act says, the reference is to any operator, train dis- 
 patcher, or "other employee" who, by the use of the telegraph 
 or telephone, dispatches, reports, transmits, receives, or delivers 
 orders pertaining to or affecting train movements. Now, the 
 use of the words "other employee" means that somebody 
 
156 HOURS OF SERVICE ACT. 
 
 besides an operator or a train dispatcher was in the contempla- 
 tion of Congress and that some use of the telegraph or telephone 
 other than that of a telegraph operator or train dispatcher was 
 contemplated and meant. 
 
 Furthermore, the difi'ercnt words used cover every sort of a 
 connection with the transmission of such orders, not limited to 
 the mere issuance of them, or mere handling of them, as one from 
 whom they originally emanated, or his agent. But it would 
 seem to be anybody who dispatches, reports, transmits, receives, 
 or dehvers such orders, or those in any way having anything to 
 do with the putting of such orders into commission and hnal 
 execution. And this is made to my mind more certain from the 
 fact that the ''places" where these employees work as disclosed 
 clearly contemplate that such a person who is within the purview 
 of this Act is not limited to the regular places where operators and 
 train dispatchers and those of the specific character insisted upon 
 by defendant work; but the Act says, towers and offices and 
 stations and places. So that very clearly any place where any 
 man works, and has anything to do with the use of a telephone 
 in the dispatching, reporting, transmitting, receiving, or delivery 
 in any sense of orders is meant by the Act, * * * 
 
 Now, reference has been made to debates in Congress. When 
 this Act was in conference it is disclosed to me by quotations from 
 the Congressional Record that Messrs. Hepburn and Sherman, 
 managers on the part of the House of Representatives, made a 
 report [Cong. Rec, pp. 4619-4620-4621] in which it was said that 
 the amendment prepared in conference also brought within the 
 provisions of the law all towermen and interlocking switchmen 
 who did not operate either through a telephone or telegraph, and 
 yet whose duties are important. That was stricken out, but the 
 very fact that it was presented shows it was contemplated that 
 the Act did cover all such towermen and interlocking switchmen, 
 and these certainly belong to this latter class, who did operate in 
 the performance of their duties either through telephone or tele- 
 graph, and so the law was left in form to include them. This is 
 not at all conclusive upon the court, but it is a further indication 
 of what the spirit and purpose of the law was. — Van Vallcenr 
 hurghy D. J. [Judgment reversed by the Circuit Court of Appeals 
 for the 8th Circuit, in Missouri Pacific Ry. Co. v. U. S.,211 Fed., 
 893, cited on the following page. 
 But see : 
 U. S. V. Chicago, R. I. & P. Ry. Co. [unreported]. 
 
 District Court, Western District of Missouri, March 5, 1914. 
 
 I am constrained to hold that the mechanical device for 
 dispatching trains in use by the defendant company does not 
 constitute dispatching by means of the telegraph or telephone 
 within the meaning of the hours of service law. It is true that 
 signals actuated by electricity are employed, but in this Act 
 I believe the word ^ 'telegraph^' was employed in its commonly 
 accepted meaning and that it would constitute legislation to 
 extend that meaning to embrace contrivances clearly not con- 
 templated by the Congress. It must be conceded that it is within 
 
SCOPE. 157 
 
 the bounds of possibility, and even of probability, that means 
 may be deviseci whereby the dangers sought to be averted may 
 be entirely removed and to which the reasons underlying the 
 law may no longer have application. It is undoubtedly true 
 that safety in the dispatching of trains was the object primarily 
 sought to be attained; but if it be deemed wise and necessary 
 to make the 9-hour limit apply to all acts, forms, or methods 
 connected with such dispatching, and the communication of 
 orders incidental thereto, it is lor Congress so to declare in 
 sufficiently explicit terms. That it has expressly refrained from 
 doing so IS apparent. An inspection of the latest utterance of 
 the court of appeals for this circuit [Missouri Pacific Ry. Co. v. 
 U. S., 211 Feci., 893] convinces that such is the view entertained 
 by that court upon a matter of interpretation of this nature. — ■ 
 Van Valkenburgh, D. J. 
 
 See also: 
 
 Employees in train service. — A trainman re- 
 quired by the rules of the carrier, in conjunction with 
 his duties as trainman, to send, receive, or deliver orders 
 affecting the movement of trains comes within the pro- 
 viso of section 2 of the Hours of Service Act; and there- 
 fore a carrier may not require a trainman who has been 
 on duty longer than the limit of time fixed for a tele- 
 graph or telephone operator to send, receive, or deliver 
 orders affecting the movement of trains as a part of 
 the duties regularly assigned to him. 
 
 But upon inquiry whether the practice of requiring 
 conductors of trains delayed at stations where there is 
 no regularly assigned telegraph or telephone operator 
 on duty, and conductors of trains about to be overtaken 
 b^ superior trains, to telephone or telegraph the train 
 dispatcher for instructions is in accord with the Act and 
 with the Commission's order of interpretation of June 
 25, 1908 [Adm. Ruling No. 88]: Held, That a trainman 
 who has been on duty for more than 9 hours or for more 
 than 13 hours is not prohibited from occasionally using 
 the telegraph or telephone to meet an emergencv- — 
 Adm. Ruling No. S42. 
 
 Per contra : 
 
 Missouri Pacific Ry. Co. v. U. S., 211 Fed., 893. 
 
 Circuit Court of Appeals, 8th Circuit, February 16, 1914. 
 Wlien all is said about the duties of these men, it comes to this: Their primary 
 duty was to throw these switches, whenever necessary, and the telephones were 
 used to inform them from time to time what was wanted in regard to the switching 
 and in reporting to those who intended to use the switches, the preparation that 
 had been made for such use. It did not differ except in complexity of operation 
 from the service performed by a brakeman who runs ahead of his train, turns a 
 switch, and swings his hand by day, or lantern by night, to signal the engineer. 
 If one is within the proviso of section 2, so is the other, unless it be held that the 
 mere use of the telephone brings one switchman within the 9-hour provision and 
 leaves another who does not use it under the 16-hour clause, although the service 
 performed is the same. But we apprehend that there will be no contention that 
 Congress fixed the period of 9 hours for certain employees because of the use of 
 the telephone. The difference in the hours of labor fixed by section 2 was based 
 upon the character of the service rendered by the employee, not upon the use of 
 the telephone. R. Connell and J. W. King, beyond question, were not operators 
 
158 HOURS OF SERVICE ACT. 
 
 or dispatchers. They were employees, but were they employees within the 
 meaning of section 2, who by the use of the telegraph or telephone dispatched, 
 reported, transmitted, received, or delivered orders pertaining to, or affecting 
 train movements? * * * We think that under a well-established rule of con- 
 struction the words "or other employee," found in the proviso, must be construed 
 to mean an employee engaged in the same character of service as a train dis- 
 patcher or operator, who by the use of the telegraph or telephone performs the work 
 described in the proviso. In other words, Congress intended the 9-hour provision 
 to apply to employees whose primary dut}- was to dispatch, report, transmit, 
 receive, or deliver orders pertaining to or affecting tram movements. We do 
 not mean by this that the word "orders" should be limited to technical train 
 orders described in what are known as standard rules for the movement of trains. 
 Confess was dealing with a class of employees engaged primarily in a particular 
 service and the mere form of the order, pertaining to or affecting train movement, 
 is immaterial, if it is dispatched, reported, transmitted, received, or delivered 
 by the use of the telegraph or telephone. Where general words follow an enu- 
 meration of particular classes of persons or tilings the ' will be construed as applica- 
 ble only to persons or things of the same general nature or class as those enumer- 
 ated. The particular words are presumed to describe certain species and the 
 general words to be used for the purpose of including other species of tlie same 
 genus. The rule is based on the obvious reason that, if the legislature had intended 
 the general words to be used in their unrestricted sense, they would have made 
 no mention of the particular classes. The words "other" or "am^ other," follow- 
 ing an enumeration of particular classes, are therefore to be read as "other such 
 like," and to include ordv others of like kind or character. [First Nat. Bank of 
 Anamoose v. U. S., 206 Fed., 374; U. S. v. Bevans, 3 Wheat., 336.] * * * 
 
 As the word "employee" in the proviso of section 2 includes "operator" 
 and "train dispatcher," for the latter are both employees, the conclusion here is 
 irresistible that Congress intended bv the use of the words "other employee" to 
 mean an employee engaged primarily in the same class of service as would be 
 performed by an operator or train dispatcher. If this be the right construction 
 to place upon the proviso, then II. Connell and J. W. King were not in any sense 
 employees, whose primar;/ duty was to dispatch, report, transmit, receive, or 
 deliver by the use of the telegraph or telephone orders pertaining to or affectina 
 train movements witliin the meaning of the proviso. Wliile, as has been saia 
 before, we must give the law such a construction as will promote the purpose of 
 the law, in our zeal to do so, however, we must not attempt to legislate ourselves. 
 We are cited to the case of U. S. v. Houston B. & T. Ry. Co., 205 Fed., 344. In 
 regard to this case, it is sufficient to say that the facts which appear in the report 
 of that case differ from the facts in the present record. — Carland, C. J., pp. 895, 
 896, 897. 
 
 11. The service of an operator at a local station is as clearly within 
 the purpose of the Act as is that of a similar employee in a train- 
 dispatcher's office. 
 U. S. V. Atlantic Coast Line R. Co., 211 Fed., 897. 
 
 Circuit Court of Appeals, 4th Circuit, February 3, 1914. 
 
 In the second place, it is not to be assumed that the tele- 
 grapher in a train dispatcher's office or other similar office per- 
 forms more wearisome labor or becomes sooner fatigued than 
 the operator at an ordinary local station. The latter, it is true, 
 may average only a small number of train orders in the course 
 of a day, but nevertheless he ma}^ have, and usually does have, 
 other duties which are varied and often onerous. Even if he is 
 not called upon to act as station agent and does little but use the 
 telegraph or telephone, the orders and messages of the company 
 not relating to trains and the commercial business of the com- 
 munity may involve exertion and responsibility quite as 
 fatiguing as the work of a telegrapher engaged mainly in the 
 transmission of train orders. In other words, and for the reasons 
 here suggested, it seems to us that operators at local and sub- 
 ordinate stations are scarcely less liable than operaU^rs at main 
 
SCOPE— EXCEPTIONS. 159 
 
 offices to suffer loss of alertness and efficiency from excessive 
 hours of duty. In our judgment, neither the terms and purpose 
 of the statute nor the conditions of actual service justify us 
 in upholding the contention here considered. — Knapp, G. J., 
 pp. 900-901. 
 
 D. EXCEPTIONS TO THE APPLICATION OF THE ACT. 
 
 1. The proviso in Section 2: 
 
 * * * Provided, That no operator, train dispatcher, or other em- 
 ployee who by the use of the telegraph or telephone dispatches, reports, 
 transmits, receives, or delivers orders pertaining to or affecting train 
 movements shall be required or permitted to be or remain on duty for 
 a longer period than nine hours in any twenty-four-hour period in all 
 towers, ofl3.ces, places, and stations continuously operated night and 
 day, nor for a longer period than thirteen hours in all towers, ofl3.ces, 
 places, and stations operated only during the daytime, except in case 
 of emergency, when the employees named in this proviso may be per- 
 mitted to be and remain on duty for four additional hours in a twenty- 
 four-hour period on not exceeding three days in any week: * * *. — 
 Sec. 2, Act March 4, 1907 [34 Stat, at L., 1415, I4I6]. 
 
 (a). "Emergency", as used in the Act, defined. 
 
 Emergencies. — -The Act provides that operators 
 employed at night and day stations or at daytime 
 stations may, in case of emergency, be required to 
 work four additional hours on not exceeding three days • 
 in any week. Manifestly, the emergency must be real 
 and one against which the carrier can not guard. — 
 Adm. Ruling No. 287-h. 
 
 U. S. V. Southern Pacific Co., 209 Fed., 562. 
 
 Circuit Court of Appeals, 8th Circuit, November 13, 1913. 
 It does not appear that Congress used the word ''emergency" 
 in any other than its ordinary or popular sense. Webster 
 defines the word "emergency" as "Any event or occasional 
 combination of circumstances which calls for immediate action 
 or remedy; pressing necessity; exigency." The Century Diction- 
 ary defines the word as follows: "Sudden or unexpected happen- 
 ing; an unforeseen occurrence or condition." The definition as 
 given by the Century Dictionary was approved in SJieean v. 
 City of New Yorl [75 N. Y. Supp., 802]. * * * Congress 
 no doubt used the word "emergency" with reference to the 
 business of dispatching trains when conducted in the exercise 
 of the ordinary care required in such business. ^(7a7'Za?2^, 
 a J., p. 565,567. 
 
 (b). "Week",* as used in the Act, defined. 
 V. S. V. Southern Pacific Co., 209 Fed., 562. 
 
 Circuit Court of Appeals, 8th Circuit, November 13, 1913. 
 We also think that the word "week" in the statute was 
 intended to mean a period of seven days and not necessaiily 
 
 *"In any week" is construed to mean in any calendar week, beginning with 
 Sunday. — Adm. Ruling No. 287-h. 
 
160 HOURS OF SERVICE ACT. 
 
 a calendar week, and that the statute is not violated if no 
 employee worked overtime more than three days out of seven. — 
 Carland, G. J., p. 567. 
 
 2. Provisos in Section 3: 
 
 * * * Provided, That the provisions of this Act shall not apply 
 in any case of casualty or unavoidable accident or the act of God; nor 
 where the delay was the result of a cause not known to the carrier 
 or its officer or agent in charge of such employee at the time said 
 employee left a terminal, and which could not have been foreseen: Pro- 
 vided further y That the provisions of this Act shall not apply to the crews 
 of wrecking or relief trains. * * *. — Sec. S, Act March 4, 1907, [S4 Stat, 
 at L., 1415, 1416]. 
 
 (a). The first proviso in section 3 of the Act is applicable to the 
 service of operators and other employees handling train orders no 
 less than to that of employees in train service. 
 V. S. V. Missouri Pacific Ry. Co., 213 Fed., 169. 
 
 Circuit Court of Appeals, 8th Circuit, March 21, 1914. 
 
 And the result is that the plain terms of the statute, the 
 reason of the case, and the rules and authorities upon the con- 
 struction of statutes to which reference has been made have 
 convinced that the proviso of section 3 of the ''Act to promote 
 the safety of employees and travelers upon railroads by limiting 
 the hours of service of employees thereon," approved March 4, 
 1907, commonly known as the Hours of Service Act, exempts a 
 , common carrier from liability for the penalty specified therein 
 when in a case of casualty, unavoidable accident, or the act of 
 God, it necessarily requires or permits a telegraph operator, 
 train dispatcher, or other employee of their class to serve beyond 
 the time limited for his service by section 2 of that Act.— ^Sanhom, 
 
 a J., p. 175. 
 
 (i). And where an operator remained on duty for a period of 7 hours 
 in excess of his normally permitted service, on account of a wreck 
 resulting from an unavoidable cause : HELD, that such service 
 was not limited to the 4 additional hours permitted in cases of 
 emergency. 
 D. S. V. Missouri Pacific Ry. Co., 213 Fed., 169. 
 (b). ''Casualty" defined. 
 ''Casualty," like its s3rnonyms "accident" and "misfortune,'' 
 may proceed or result from negligence or other cause known or 
 unknown. — Words and Phrases Judicially Defined, vol. 2, 1003. 
 U. S. V. Kansas City Soutliern Ry. Co., 189 Fed., 471. 
 
 District Court, Western District of Arkansas, July 10, 1911. 
 
 Casualty has been defined as an act which proceeds from 
 
 an unknown cause or is an unusual effect of a known cause. 
 
 [Chicago, St. L. & N. 0. R. Co. v. PullTnan Southern Car Co., 139 
 
 U. S., 79.]--Trieher, D. J., p. 477. 
 
 (c). "Unavoidable accident" defined. 
 
 U. S. V. Kansas City Southern Ry. Co., 189 Fed., 471. 
 
 District Court, Western District of Arkansas, July 3, 1911. 
 While some authorities hold that "unavoidable accident" 
 
EXCEPTIONS. 161 
 
 is synonymous with ''act oi God," the better definition, in the 
 opinion of the court, is that it must be an inevitable accident 
 which could not have been foreseen and prevented by the exer- 
 cise of that degree of diligence which reasonable men would exer- 
 cise under like conditions and without any fault attributable to 
 the party sought to be held responsible. 
 
 In Clyde Y.Richmond di D.R. Co., 59 Fed., 394, it was held 
 that ''an unavoidable accident is one which occurs without any 
 apparent cause; at least without fault attributable to anyone.'* 
 
 In Fishy. Chapman, 2 Ga., 349, it was held that "an una- 
 voidable accident is synonymous with inevitable and means any 
 accident produced by physical causes which are inevitable, 
 such as lightnings, storms, perils of the sea, earthquakes, inunda- 
 tions, sudden death, or illness.'* 
 
 In Dixon v. V. S., 1 Brock, 177, the court held the words 
 "unavoidable accident" must be construed as any accident 
 which renders a breach of the condition inevitable." 
 
 This question has been frequentl^p- before &he courts in the 
 construction of the 2S-hour law relating to the transportation 
 of live stock. In Newport News <& M. F. Co. v. V. S., 61 Fed., 
 488, Mr. Justice Lurton, then circuit judge, deliveriag the opin- 
 ion of the court in an action arising under the act of March 3, 
 1873, said: "An effect attributable to the negligence of the 
 appellant is not an unavoidable cause. The negligence of the 
 carrier was the cause, the unlawful confinement and unreasonable 
 detention but an effect of that negligence." 
 
 The exception in that act was "imless prevented from so 
 unloading by storm or other accidental cause." The trial judge 
 in that case had charged the jury in substance "that if they 
 found that the live stock had been confined in the cars of the 
 defendant company for a longer period than 28 consecutive 
 hours without unloading for rest, food, and water it would be 
 no defense that such confinement had been caused by an acci- 
 dent to the train due to the neghgence of defendant." This 
 charge was approved by the appellate court as a correct inter- 
 pretation of the statute. 
 
 In the later 28-hour law, enacted Jime 29, 1906, chapter 
 3594, 34 Stat., 607, the exception reads:^ "Unless prevented by 
 storm or by^ other accidental or unavoidable cause which can 
 not be anticipated or avoided by the exercise of due diligence 
 and foresight." 
 
 The construction of this exception by the courts has been 
 uniform that only some unavoidable cause which could not 
 have been guarded against by the exercise of due diligence and 
 foresight is within its meaning. [ U. S. v. Southern Pacific Co., 
 157 Fed., 459; U. S, v. Atchison, T. & S. F. Ry. Co., 166 Fed., 
 160; U. S. V. Union Pacific R. Co., 169 Fed., 65; TJ. S. v. Atlantic 
 Coast Line R. Co., 173 Fed., 764.] Other cases not arising 
 under the 28-hour law, but holding as was held in the case above 
 cited, are Clyde v. Richmond c& D. R. Co., 59 Fed., 394; ''The 
 Olympia,'' 61 Fed., 120. 
 
 In V. S. V. Atchison, T. <& S. F, Ry, Co. [166 Fed., 160], 
 supra, it was held that for a carrier to avaU itself of a break- 
 50611—15 ^11 
 
162 HOURS OF SERVICE ACT. 
 
 down or wreck as an excuse it must be shown that the circum- 
 stances relied on resulted from a cause which could not have 
 been avoided by the exercise of due diligence and foresight. 
 
 In TJ. S. Y. Atlantic Coast Line R. Co. [173 Fed., 764] it was 
 held that the failure of a conductor to examine a waybill is not 
 a legal excuse. 
 
 In Welles v. Castles, 69 Mass., 325, it was held ''The term 
 'unavoidable accident' has a much more restricted meaning and 
 comprehends only damage and destruction arising from superven- 
 ing and uncontrollable forces or accident. " 
 
 Other cases to the same effect are Dreyer v. People, 58 N. E., 
 620; Smith v. SoutJiern Ry. Co., 40 S. E., 86; Tays v. EcJcer, 24 
 S. W.,954; Crystal Spring Dist. Co. v. Cox, 49 Fed., 555. — Trieher, 
 D. J., pp. 477-478. 
 U. S. V. Delaware, L. cfc W. R. Co. [unreported]. 
 
 District Court, Western District of New York, May 22, 1913. 
 
 Now, for the purpose of giving consideration to the proper 
 elements in this case, it might be weU f or me to define the term 
 ' * 'unavoidable accident." This term has been defined by the 
 courts to be such an occurrence as happens without fault attrib- 
 utable to anyone and which could not have been foreseen or 
 prevented by the exercise of such a degree of care and diligence 
 as a man of ordinary prudence would use under like conditions, 
 and the courts have given examples, in cases wherein a train has 
 been delayed by storms, extraordinariljr severe rains, Hghtning, 
 unexpected floods, earthquakes, sudden illness, or death. — Hazel, 
 D.J. 
 
 (d). "Act of God" defined. 
 Act of God. — ^Any accident due to natural causes directly and 
 exclusively without human intervention, such as could not have 
 been prevented by any amount of foresight, and pains, and care 
 reasonable to have been expected. — Bouvier's Law Dictionary, 
 vol. 1, 79. 
 Z7. S. V. Kansas City Southern Ry. Co., 189- Fed., 471. 
 
 District Court, Western District of Arkansas, July 3, 1911. 
 While it is not advisable to give an exact definition of that 
 phrase which will cover every phase, it has been generally defined 
 as something which occurs exclusively by the violence of nature; 
 at least an act of nature which implies an entire exclusion of aU 
 human agencies. In Gleeson v. V. M. R. R. Co., 140 U. S., 435, 
 an accident was caused by a landslide caused hj a heavy rain, 
 and this, it was claimed, was an act of God relieving the defend- 
 ant from liabiHty. This contention was overruled by the court, 
 Mr. Justice Lamar dehvering the opinion of the court, saying: 
 "There was no evidence that the rain was of extraordinary char- 
 acter or that any extraordinary results followed it. It was a 
 common, natural event ; such as not only might have been fore- 
 seen as probable, but also must have been forelaiown as certain 
 to come. Against such an event it was the duty of the company 
 to have guarded. Extraordinary floods, storms of unusual vio- 
 lence, sudden tempests, severe frosts, great droughts, lightnings, 
 earthquakes, sudden deaths, and illnesses have been held to be 
 
EXCEPTIONS. 16B 
 
 ''acts of God"; but we know of no instance in which a rain of 
 not unusual violence and the probable results thereof, in soften- 
 ing the superficial earth, have been so considered. " 
 
 In ''Tie Majestic, " 166 U. S., 375, it was held that the ''act 
 of God" which would exempt one from liability is an act in which 
 no man has any agency whatever. 
 
 In Bullock V. White Star Steamship Co., 30 Wash., 448, it was 
 held that "an act of God to relieve from the performance of a 
 contract must be such as a person of reasonable prudence and 
 foresight could not have guarded against. " 
 
 For additional authorities on this subject see Harrison v. 
 Hughes, 125 Fed., 860, and 1 Words and Phrases, pages 118 to 
 \2Q.—Trieber, D. J., p. 476. 
 
 (i). An act of God will not excuse a carrier from the liability imposed 
 upon it by the law unless it is shown that the results thereof 
 could not have been prevented by any foresight, pains, or care 
 reasonably to have been expected in the premises. 
 BlacTc V. Charleston cfc TF. C. Ry. Co., 69 S. E., 230 [citmg Harzburg 
 V. Southern Ry. Co., 44 S. E., 75]. See also TJ. S. v. Kansas City 
 Southern Ry. Co., 189 Fed., 471 [citing U. S, v. Atchison, T. <& 
 S. F. Ry. Co., 166 Fed., 160]. 
 
 (e). It is the duty of carriers subject to the Act to provide appropriate 
 stopping places along their lines where employees may rest. 
 V. S. V. Southern Ry. Co. [unreported]. 
 
 District Court, Western District of South Carolina, Oct. 30, 1913. 
 A passenger train or a freight train might meet an unavoid- 
 able accident at a way station. If it is possible to avoid it, the 
 reason of the rule is not to delay and hold up a train of passengers, 
 and if it is a freight train you can not hold up a freight train il at 
 the point of the accident it could be held to the eight hours rest 
 that is required by the statute only at the risk of danger to other 
 trains; therefore the statute makes certain provisions regulating 
 in such cases the enforcement of the statute, and I construe that 
 to mean that the provisions of the Act, so far as requiring 16 con- 
 secutive hours of labor, mean only that the train may be op- 
 erated after that limit until a suitable stopping place can be 
 reached, and it is the railroad's duty to have suitable stopping 
 places where rest can be had for its employees at proper places 
 along its route, proportionate to the exigencies of the business. — 
 Smith, D, J. 
 
 (f). '• Terminal,** as used in the Act, defined. 
 
 V. S. V. Atchison, T. & S. F. Ry. Co., 212 Fed., 1000. 
 District Court, District of Arizona, April 10, 1914. 
 
 Thus it appears that the Commission to which was entrusted 
 the execution of this law, and whose duty it was to ascertain 
 whether or not its provisions were being observed, not only 
 ruled that "Employees unavoidably delayed by reason of causes 
 that could not, at the commencement of a trip, have been 
 foreseen, may lawfully continue on duty to the terminal or end 
 of that run,'' but actually used the words "terminal" and "end 
 of that run" synonymously. In other words, they not only 
 
164 HOURS OF SERVICE ACT. 
 
 defined the word ''terminar' to mean the equivalent of the end 
 ot that run, but actually held that employees unavoidably de- 
 tained by reason of causes that could not, at the commencement 
 of the trip, have been foreseen, may ''lawfully continue on duty 
 to the terminal or end of that run." * * * 
 
 It does not appear that the word ''terminal" has been 
 judicially defined. According to the usage of railroad men in 
 the United States, as shown by the evidence in this case, each 
 train crew is assigned by the officers of the company to a definite, 
 fixed run, beginning and ending at fixed points or places on its 
 line of railroad, and in my judgment these fixed beginning and 
 ending points of a given run lor a given crew are the ' ' terminals ' ' 
 of that run within the meaning of the word "terminal" as used 
 in the proviso in section 3 of this Act. In the usage of railroad 
 men there are different "runs" for different train crews and also 
 different runs for different employees on the same train, and the 
 run of an engineer on a passenger train might be different from 
 the run of a conductor or brakeman. There may be one run for 
 a freight crew and another run for a passenger crew, and these 
 runs may not be, and usually are not, coterminous, and one run 
 or several runs for freight crews may lie between the terminals 
 of the run of a single passenger crew, and each of these runs has 
 its own terminals. And in applying this Act to a given case 
 regard must be had to the line of service in which the train crew 
 or employees in question were engaged at the time of the alleged 
 violation of the Act, and to that olone.—Sawtelle, D. J., pp. 
 1005, 1007. 
 
 See also: 
 
 St. Louis, L M. & S. R. Co. v. State, 143 S. W., 913. 
 Supreme Court of Arkansas, January 29, 1912. 
 
 A railroad corporation has organized departments to which 
 are intrusted certam duties. Amongst these is the duty to pro- 
 vide and keep in proper repair and to operate the equipment 
 which its passenger and freight traffic may require. In order to 
 effectively conduct and operate its trains, its line of railroad is 
 separated into divisions. The division is the longest undivided 
 part of its line, and within such division the operation of its 
 trains is managed and supervised by separate and distinct 
 officials who are known as division officers, with different titles, 
 according to their varied duties. Within such division there is 
 a place or point where these officials are located, and such place 
 is Known as division headquarters. This is the place where the 
 division officials who manage, control, and superintend the 
 operation and repair of trains and equipments which are em- 
 ployed within such division are located. Such a place is a 
 division point. Each division has its beginning and end fixed 
 upon the line of railroad. At these limits of the divisions trains are 
 made up and employees operating such trains take charge thereof 
 to make their rmis from one end of the division to the other. 
 At these places, upon the end or beginning of a division, the 
 trains end their runs. Here engines and cars are inspected and 
 repaired, or taken out of the train altogether, and the train is in 
 
EXCEPTIONS. 165 
 
 effect made up again and either returned upon its trip on the 
 same division, or sent on to another division in the course of its 
 run. Here the employees or crews operating the trains leave 
 them and take their rest preparatory for another run, or the 
 crews of the trains are here changed. At the place where this 
 is done regularly and constantly or substantially so, it is usual 
 that the engines and cars are repaired or new ones constructed. 
 Such work is also ordinarily done at the place where the division 
 headquarters are located. These places, then, are division 
 points. — Frauenihalj J., pp. 914-915. 
 
 (g). The occurrence, after a crew has left a terminal, of a casualty, an 
 unavoidable accident or an act of Grod, resulting in the detention 
 of the crew on duty in excess of 16 hours, suspends the operation 
 of the statute for the given trip. 
 
 Proviso in Sec. 3. — The instances in which tlie Act 
 will not apply include only such occurrences as could 
 not be guarded against; those which involved no 
 neglect or lack of precaution on the part of the carrier, 
 its agents, or officers; and they serve to waive the ap- 
 plication of the law to employees on trains only until 
 such employees, so delayed, reach a terminal or relay 
 point. — Adm. Ruling No. 287-i. 
 
 Proviso in Sec. 3. — Section 3 of the law provides 
 that: "The provisions of this Act shall not apply in any 
 case of casualty or unavoidable accident or the act of 
 God; nor where the delay was the result of a cause not 
 known to the carrier or its officer or agent in charge of 
 such employee at the time said employee left a terminal, 
 and which could not have been foreseen." 
 
 Any employee so delayed may therefore continue 
 on duty to tne terminal or end of that nm. The pro- 
 viso quoted removes the 'appHcation of the law to that 
 trip. — Adm. Ruling No. 88-b. 
 U. S. V. Atchison, T. c& S. F. Ry. Co., 212 Fed., 1000. 
 District Court, District of Arizona, April 10, 1914. 
 
 We can not adopt the interpretation contended for by the 
 Government in this case, namely, that, if the train was delayed 
 by reason of any of the causes set out in the proviso in section 3 
 of the Act, the train crew may not lawfully continue on duty to 
 the terminal or end of that run. This court holds that in such 
 a case there is nothing in the Act which requires a carrier to pro- 
 ceed to the next suitable stopping place and there tie up and 
 reheve the crew, or which prevents the crew from continumg on 
 duty and proceeding on their trip to the terminal or end of that 
 run, which in this case was at Parker, even though at the time 
 they left Summit, the place where the train was delayed and 
 remained on account of the unavoidable accident or casualty 
 which occasioned the delay, they had no reasonable expectation 
 of being able to reach the end of their run, Parker, within the 
 16-hour fimit. In the opinion of this court, such a construction 
 is not authorized. — Sawtelle, D. J., p. 1006. [See defiiiition of 
 "termina'l" as used in the Act, Item 2-(f), p. 163, ante,] 
 
166 HOURS OF SERVICE ACT. 
 
 See also: 
 
 V, S. V. Nortliern Pacific Ry. Co., 215 Fed., 64. 
 
 Circuit Court of Appeals, 9th Circuit, August 3, 1914. 
 
 The evidence showed without conflict that, on the occasion in 
 question, the crew in question left Tacoma on train 303 at 1.40 
 p. m., of May 12, 1913, and was due to meet passenger train 
 No. 362 of the Oregon-Washington Eailroad & Navigation 
 Company at the station of South Tacoma at 1.56 p. m., of the 
 same day, but that train 362 was derailed between Lake View 
 and South Tacoma at about 1.50 p. m., about 6 minutes before 
 the regular time of the meeting of the two trains. That derail- 
 ment tore up the track, overturned the engine and coaches of 
 train 362, resulting in the death and mjury of a number of 
 passengers, and prevented train 303, on which was the crew here 
 m question, from proceeding on to Portland until about 6 p. m. 
 of the same day, when that crew, with the passengers of train 303, 
 were transferred to passenger train 314, whicli had come up 
 from Portland. Tram 314, with the crew and passengers of 
 train 303, was then backed to a place near Centraha, wnere it 
 was turned around and then proceeded to Portland, reaching 
 there at 12.30 a. m of May 13th. The crew in question, after 
 being off duty about 6 hours and a half at Portland, returned to 
 Tacoma on its regular run on train 308, and in doing so was on 
 duty about 17 hours without having had 8 hours off duty. 
 
 The demoralization of the traffic over the road at the time 
 in question, growing out of the derailment, is clearly shown by 
 the uncontradicted testimony in the case; indeed, it is expressly 
 conceded by counsel for the Government that the delay of the 
 crew in question on its regular run from Tacoma to Portland 
 was due to the * 'unavoidable accident at South Tacoma.'' 
 It is equally plain from the undisputed evidence that the accident 
 was the sole cause why the crew in question was engaged on 
 its run for more than 16 hours without a rest of 8 consecutive 
 hours, so that the question is whether the circumstances of the 
 case bring it within the first proviso to section 3 of the Act of 
 Congress, upon which the action is based. 
 
 Undoubtedly the train dispatcher both at Tacoma and at 
 Portland would, under ordinary conditions, be held to have known 
 that the delay of train 303 at South Tacoma, and the transfer of 
 its crew and passengers to train 314, could not have enabled them 
 to reach Portland in time for the same crew to return to Tacoma 
 on its regular train 308 without being kept on duty for more 
 than 16 hours without a consecutive rest of 8. hours; but the 
 evidence is uncontradicted to the effect (indeed, it could hardly 
 have been otherwise) that both dispatchers were deeply en- 
 grossed in arranging and caring for the movement of the large 
 number of trains, including the necessary wrecking outfits, 
 together with the numerous mcidentals, necessarily growing out 
 of such a disaster. Under such circumstances, it would not, 
 we think, be reasonable to hold the company liable for their 
 failure to check up the time of service of the various crews of 
 the very numerous trains passing over this particular piece of 
 road at that particular time.— Ross, C. J., pp. 66-67. 
 
EXCEPTIONS. _ 167 
 
 But see: 
 
 TJ. S. V. Southern By. Co. [unreported]. 
 
 District Court, Western District, South Carolina, Oct. 30, 1913. 
 
 Now, I charge you, gentlemen, that if this accident causing 
 delay had occurred, say, between Greers and Spartanburg, or 
 before reaching Greei-s, or if the train had left Spartanburg with 
 the reasonable expectation of being able to make Greenville 
 within the 16 hours, and there occurred an unexpected and un- 
 avoidable delay from the act of God, or unavoidable casualty or 
 unavoidable accident between Spartanburg and Greenville, that 
 in that case the railroad would have had a right to require these 
 train operators to operate that train to the first proper stopping 
 place, which might vary according as it was a passenger or a 
 freight train; but at the first proper stopping place where its 
 crews could be replaced or the tram could be tied up the crew 
 should have been given a rest; and that if Spartanburg was a 
 proper stopping place, or if Spartanburg Junction was — and 
 from this testimony if you believe it was — at which this train 
 could have either had its crew replaced or at which it could have 
 tied up so as to give the crew on service necessary rest, then it 
 was the duty of the rajlway officials to so provide, as they knew 
 that it could not reach Greenville within the stipulated time. 
 And the same thing as to Greers ; when the train was reported at 
 Greers it had already exceeded the statutory limit of time serv- 
 ice, and I charge you that from the testimony it appears that the 
 train could have tied up at Greers, and it does not appear that 
 it was a passenger train, or that there was any extraordinary 
 * exigency that required this freight train to go on to Greenville 
 so as to exceed the statutory limit of time. Therefore, if you 
 find that either at Spartanburg or at Greers this train rea- 
 sonably could have been tied up, under this testimony, so as to 
 give the employees the rest required by the statute, the railroad 
 oflicials were not justified in permitting them to exceed the 
 statutory limit of labor. * * * 
 
 On that I rule that the occurrence of an accident or delay 
 by the act of God or any case of casualty or unavoidable accident 
 while the train is in course of transit from one terminal point to 
 another does not mean that the entire Act is suspended as to 
 that train. To hold that the entire. Act would be suspended as 
 to that train would be to hold that the 16 hours limit did not 
 apply to any train between terminals during the progress of 
 whose transit between terminals any delay occurred from the 
 exempting causes named in the statute. The delay might be any 
 number of hours, from 5 to 10, and I hold that the statute does 
 not mean that as to that train the operative period of service is 
 extended from 16 to 21 or 26 hours, according as some delay 
 from the exempting causes may occur whilst the train is in 
 transit. I construe the statute to mean that the hours of serv- 
 ice shall be extended in such cases only so far as may be necessary 
 to permit the train to be operated to a point at which, due re- 
 gard being had to all the circumstances of the particular case and 
 the character of the train, the train crew could be relieved or be 
 allowed to take the rest required by the statute. — Smithj D, J, 
 
168 M HOUES OF SEEVICE ACT. 
 
 TJ. S. V. AtcUson, T, <& S. F. Ry. Co., 212 Fed., 1000. 
 District Court, District of Arizona, April 10, 1914. 
 
 The proviso in the statute allows the carrier credit for all 
 lawful delays caused to a train crew on its run by casualty, una- 
 voidable accident, or act of God, or by any cause not known to, 
 or which could not have been foreseen by, the officers or agents 
 of the carrier at the time the crew started from its terminal on 
 its run, but allows no credit for delays not covered by the proviso ; 
 and consequently if the train is delayed by casualty, accident, 
 act of God, or other lawful cause for one hour at one place, and 
 another hour at another place, and then is delayed another hour 
 at another place by a cause which was known to or could have 
 been foreseen by the officers and agents of the carrier at the 
 time the crew left the terminal or started on its run, and the 
 regular schedule time of the train was 16 hours, and in conse- 
 quence of the delays mentioned the time taken for the nm is 19 
 hours, the carrier is liable, because it was entitled to have spent 
 18 hours only on the run, and not 19 hours. It bein^ thus 
 unlawful to haul this car with chains, and the evidence without 
 dispute showing that delays to the train between Cliffs and 
 Winslow were caused by this car, it follows that such delays were 
 not the result of casualty or unavoidable accident, and not 
 within the proviso. — Sawtelle, D. J., p. 1008. 
 
 U, S. V. Great Northern Ry. Co. [unreported]. 
 
 District Court, District of Minnesota, June 4, 1913. 
 
 I passed upon the question of the materiality of this evidence 
 when it was offered, and ruled it out on the theory that if an 
 unavoidable accident did occur which delayed a train 5 hours, 
 and I will say for the sake of illustration the first 5 hours out of 
 the 16 hours, so that the obstruction caused by unavoidable 
 accident was entirely removed and the train started agaiii after 
 5 hours, that that would not justify a railroad company in run- 
 ning that crew by any number of stations where it could be tied 
 up, or running by a station when the 16 hours had expired. The 
 theory of the defendant is that, the delay having been caused 
 by an unavoidable accident for 5 hours, the company had the 
 right to use the crew for so much longer. I am satisfied that 
 this is an incorrect construction of the statute, and on that 
 theory I ruled it out. — Willard, D. J. 
 
 3. The excess service of employees subject to the Act is not to be ex- 
 cused by the occurrence of conditions ordinarily to be expected 
 in the operation of trains : 
 U. 8. V. Southern Pacific Co., 209 Fed., 562. 
 
 Circuit Court of Appeals, 8th Circuit, November 13, 1913. 
 The case first cited [U. S. v. Kansas C. S. Ry. Co., 202 Fed., 
 828] was an action under the first clause of section 2 of the law 
 now under consideration. This court in that case simply held 
 that all the usual causes of delay incident to the operation of 
 trains standing alone would not excuse the railroad company 
 under the terms of the first proviso of section 3, but that the 
 company must further show that such delays could not have been 
 foreseen and prevented by the high degree of diligence demanded. 
 Of course this must be so. If the usual causes of delay incident 
 
EXCEPTIONS. 169 
 
 to operation were to excuse, then the statute would be wholly 
 ineffective to accomplish its purpose. — Carland, C. J., p. 566. 
 
 V. S. V. Kansas City Southern Ry. Co., 202 Fed., 828. 
 
 (a). Broken rails. 
 
 U. S. V. Galveston, E. cfe S. A. Ry. Co. [unreported]. 
 
 District Court, Western District of Texas, January 12, 1912. 
 There is another delay claimed when the train lost 15 
 minutes at Weimer because of a broken rail. I do not think 
 that this is entitled to consideration as an unforeseen delay. 
 The track ought to have been heavy enough to bear the ordinary 
 traffic over it. — Foster, D. J. 
 
 (b). Cleaning fires. 
 
 U. S. V. Kansas City Southern Ry. Co., 189 Fed., 471 ; U. S. v. Kan- 
 sas City Southern Ry. Co., 202 Fed., 828. 
 
 (c). Congestion of traffic. 
 
 U. S. V. Northern Pacific Ry. Co., D. C, W. D. Washington, Feb. 13, 
 1914, Cushman, D. J. [unreported]. 
 
 (d). Delay in starting trains. 
 
 TJ. S. V. Kansas City Southern Ry. Co., 189 Fed., 471; Z7. S. v. Kan- 
 sas City Southern Ry. Co., 202 Fed., 828. 
 
 (e). Engine failures dne to mechanical defects. [Defective shaker 
 rods, leaky flues, etc. ] 
 
 U. S. V. Kansas City Southern Ry. Co., 189 Fed., 471; Washington 
 P. cfe C. Ry. Co. V. Magruder, 198 Fed., 218; Z7. S. v. Kansas 
 City Southern Ry. Co., 202 Fed., 828. See also Missouri, K. <& 
 T. Ry. Co. of Texas v. TJ. S., 231 U. S., 112 [affirming the judg- 
 ment of the Circuit Court of Appeals for the 5th Circuit, and, 
 in turn, of the District Court for the Eastern District of Texas 
 (both decisions unreported)]. 
 
 (f). Frost on rails and heavy tonnage, necessitating doubling. 
 
 U. S. V. Missouri, K. cfe T. Ry. Co. of Texas, D. C, E. D. Texas, 
 May 30, 1912, Russell, D. J. [unreported]. Refusal of theDisrict 
 Court to direct a verdict for the defendant on the ground of this 
 assumed defense, inter alia, sustained by the Circuit Court of Ap- 
 peals for the 5th Circuit [unreported] and in turn by the Supreme 
 Court in Missouri, K. cfc T. Ry. Co. v. TJ. S., 23r U. S., 112. 
 
 (g). Hot boxes. 
 
 TJ. S. V. Kansas City Southern Ry. Co., 189 Fed., 471; Washington, 
 P. c& C. Ry. Co. V. Magruder, 198 Fed., 218; TJ. S. v. Minne- 
 apolis, St. P. cfc S. S. M. Ry. Co., D. C, D. North Dakota, 
 Jan. 21, 1913, Amidon, D. J. [unreported]. 
 
 (h). Injectors failing on account of insufficiency or quality of water. 
 Missouri, K. cfc T. Ry. Co. of Texas v. U. S., 231 U. S., 112. 
 Supreme Court, November 10, 1913. 
 
 It is urged that in one case the delay was the result of a 
 cause, a defective injector, that was not known to the carrier, 
 and could not have been foreseen when the employees left a 
 terminal, and that therefore by the proviso in section 3 the Act 
 does not apply. But the question was raised only by a request 
 
170 HOURS OF SERVICE ACT. 
 
 to direct a verdict for the defendant and the trouble might have 
 been found to be due to the scarcity and bad quahty of the 
 water, which was well known. — Holmes, Justice, p . 11 9 . [Affirmhig 
 the judgment of the Circuit Court of Appeals for the 5th Circuit, 
 in turn affirming that of the District Court for the Eastern 
 District of Texas (both decisions unreported).] 
 
 — Per Contra. 
 
 U. S. V. Chicago, M. & St. P. Ry. Co., 212 Fed. 574. 
 — (i). Intermissions for meals. 
 
 U. S, V. Chicago, M. cfc P. S. Ry. Co., 197 Fed., 624; U. S. v. 
 Kansas City Southern Ry. Co., 202 Fed., 828; U. S. v. Northern 
 Pacific Ry. Co., 213 Fed., 539; Osborne's AdrnW. v. Cincinnati, 
 N. 0. cfc T. P. Ry. Co., 164 S. W., 818; TJ. S. v. Northern 
 Pacific Ry. Co., D. C, W. D. Washington, Feb. 13, 1914, Cush- 
 man, D. J. [unreported]. 
 
 ' — (j). Meeting or passing trains. 
 
 U. S, V. Kansas City Southern Ry. Co., 189 Fed., 471 [citmg U. S. v. 
 Southern Pacific Co., 157 Fed., 459]; U. S. v. Denver & R. G. R. 
 Co., 197 Fed., 629; U. S. v. Kansas City Southern Ry. Co., 202 
 Fed., 828; Great Northern Ry. Co. v. U. S., 211 Fed., 309; 
 U. S. V. Galveston, H. & S, A. Ry. Co., D. C, W. D. Texas, 
 Jan. 12, 1912, Foster, D. J. [unreported]; U. S. v. Missouri, 
 K. cfc T. Ry. Co. of Texas, D. C, E. D. Texas, May 30, 1912, 
 Russell, D. J. [unreported]. Refusal of District Court to direct 
 a verdict for defendant on the groimd of such delays, inter alia, 
 sustained by the Court of Appeals for the 5th Circuit [unreported] 
 and in turn by the Supreme Court, in Missouri, K. cfe T.Uy. Co. 
 of Texas v. TJ. S., 231 U. S., 112; TJ. S. v. Northern Pacific Ry. 
 Co., D. C, W. D. Washington, Feb. 13, 1914, Cushman, D. J. 
 [um-eported]. 
 
 — (k). Poor coal. 
 
 TJ, S, V. Kansas City Southern Ry. Co., 189 Fed., 471; Washington, 
 P. cfc C. Ry. Co. V. Magruder, 198 Fed., 218; TJ. 8, v. Kansas 
 City Southern Ry. Co., 202 Fed., 828. 
 
 — (1). Pnlled-out or broken drawbars. 
 
 U. S. V. Galveston, H. dc S. A. Ry. Co., D. C, W. D. Texas, Jan. 12, 
 1912, Foster, D. J. [unreported]; TJ. S. v. Minneapolis, St. P. & 
 S. S. M. Ry. Co., D. C, D. North Dakota, Jan. 21, 1913, Amidon, 
 D. J. [unreported]. See also Item (n), post. 
 
 ' — (m). Rnnning for or taking water : 
 
 U, S. V. Missouri, K. d; T. Ry. Co. of Texas, D. C, E. D. Texas, 
 May 30, 1912, Russell, D. J." (unreported). [Refusal of District 
 Court to direct a verdict for defendant on the ground of such 
 delay, inter alia, sustained by the Circuit Court of Appeals for 
 the 5th Circuit (imreported) and in turn by the Supreme Court 
 in Missouri, K & T. Ry. Co. of Texas v. TJ, S,, 231 U. S., 112]. 
 
 — (n). Unnecessary hauling of defective cars by means of chains 
 instead of drawbars: 
 TJ, S, V. Atchison, T, cfc S, F. Ry. Co., 212 Fed., 1000. See also 
 Itbu"(L)/' ante. 
 
EXCEPTIONS. 171 
 
 (o). Waiting for a helper engine. 
 U, S. V. Chicago, M. <& P. S. By. Co,, 197 Fed., 624. 
 (p). Waiting for orders. 
 
 U. S. V. Northern Pacific By. Co., D. C, W. D. Wasliington, Feb . 
 13, 1914, Cushman, D. J. [unreported]. 
 
 (q). Wrecks, if preventable by the exercise of diligence and fore- 
 sight. 
 
 V. S. V. Kansas City Southern By. Co., 189 Fed., 471 [citing U. S, 
 V. Atchison, T. & S. F. By. Co., 166 Fed., 160]. 
 
 (r). But excessive heat in certain circumstances : HELD to be an 
 excuse within the purview of the Act. 
 
 U. S. V. Boston 6s M.B. Co. [unreported]. 
 
 District Court, District of New Hampshire, October 29, 1912. 
 But there is substance in the evidence that the excessive 
 heat was such that the men who were charged with the duty of 
 landing this train at Intervale, a distance of 73 miles, were not 
 able to do full work and that delay resulted; and the conductor 
 says it was a local train and that they made 15 stops, at which 
 they left or took on freight; and that there were heavy packages 
 or commodities, consisting of fruits, meats, etc., for the summer- 
 houses ; and that at some places they left cars and did switching 
 and operated on the sidings ; and the engineer described that the 
 heat was so excessive m the engine whenever the engine stopped 
 it was necessary for him to get off the train and get onto the 
 ground, and that the temperature was up to 120*^ or thereabouts, 
 and that the box cars were excessively heated. You know about 
 these things. You have worked in connection with box cars, I 
 suppose, and loiow about those things, and you know — I am 
 perfectly well satisfied that you know about the cold of New Eng- 
 land, and I trust you know something about the heat and the effect 
 of heat, whether it depresses a man, whether he can perform the 
 usual amount of physical and mental labor in excessive heat dur- 
 ing periods of excessive heat or whether he can not. You know 
 all about that; the situation has been described; I can't add 
 anything to it. One witness said he thought if a man did two- 
 thirds what he would do imder normal conditions that he did all 
 that he could do — all that he could be expected to do. Now, if 
 you think by reason of the excessive heat, which I suppose coun- 
 sel will agree was a result of the act of God, at all events it was 
 something unforeseen at 4 or 5 o'clock in the morning, there was 
 a delay equal to 30 minutes, you should deduct that from the 16 
 hours and a half. If it was 30 minutes or more, you should 
 deduct it, and after deducting whatever delay you think was 
 incident to the heat, if the time left was less than 16 hours, or not 
 exceeding 16 hours, then there should be a verdict for the defend- 
 ant, so far as the counts are concerned, which relate to the engi- 
 neer and fireman. — Aldrich, D. J. 
 
172 HOURS OF SERVICE ACT. 
 
 — (s). And, while the sudden illness of an operator will not in all cases 
 justify the retention of another employee on duty in excess of the 
 permitted periods, such illness, coupled with the inability of the 
 carrier to procure a relief operator, may in certain circumstances 
 constitute an emergency within the purview of the Act. 
 TJ. S, V. Southern Pacific Co., 209 Fed., 562. 
 
 Circuit Court of Appeals, 8th Circuit, November 13, 1913. 
 
 Applying the law to the facts, the (question arises: Did the 
 illness of Johnson, coupled with the inability of the company to ob- 
 tain a man to take his place during the time he was ill, constitute 
 an emergency within the meaning of the statute, so as to relieve 
 the company from the penalties which would otherwise result 
 from requiring Hoover, Sewall, Small, and Miller to remain on duty 
 for a longer period than 9 hours in a 24-hour period ? * * * 
 
 EUis y. TJ. S. [206 U. S., 246] is a case where the Supreme 
 Court decided that the disappointment of a contractor with 
 regard to obtaining some of nis materials, did not create an 
 extraordinary emergency within the meaning of act of August 1, 
 1892 [27 Stat., 340]. In disposing of this particular question, the 
 court said: '^He found more difficulty than he expected, although 
 he expected some trouble in getting certain oak and pine piles 
 called for by the contract, and, having been delayed by that cause, 
 he permitted his associate in the business to employ men for nine 
 hours, in the hurry to get the work done. The judge instructed 
 the jury that the evidence did not show an 'extraordinary emer- 
 gency' within the meaning of the Act. The judge was right in 
 ruling upon the matter. Even if, as in other instances, a nice 
 case might be left to the jury, what emergencies are within the 
 statute is merely a constituent element of a question of law, since 
 the determination of that element determines the extent of the 
 statutory prohibition and is material only to that end." * * * 
 
 Speaking generally, sickness and death are the common lot 
 of all and must be expected, but within the expectancy of life 
 health and not sickness is the general rule. In view of the show- 
 ing that for a period of seven years only one other unexpected 
 absence of an employee on account of illness or other cause had 
 occurred, we think the company was not so negligent in not 
 having an extra dispatcher on hand to take Johnson's place as 
 to deprive it of the privilege granted by the law. * * * 
 
 We do not decide that sudden illness in all cases or standing 
 alone would constitute an emergency. Each case must depend 
 upon its own facts. Sudden illness might continue for such a 
 number of days as to cease to be an emergency. Under our 
 rulmg in the Kansas City Southern Case, supra, [202 Fed., 828] — 
 to the effect that the statute in question, being highly remedial, 
 should be liberally construed so that its purposes maybe effected — 
 we think the illness of Johnson, coupled with the inabihty of the 
 company to secure other help during the time he was sick, con- 
 stituted an emergency within the meaning of the law. — Carland, 
 C. J., pp. 565, 566, 567. 
 
 — (t). But economical reasons alone can never justify a violation of 
 the Act. 
 
 U. S. V. Kansas City Southern Ry. Co., 202 Fed., 828. 
 
HOURS OF SERVICE REPORTS. 178 
 
 E. CARRIERS' HOURS OP SERVICE REPORTS. 
 
 1. Tlie Interstate Commerce Commission is authorized by Section 20 
 of the Act to regulate commerce to require all carriers subject 
 to the Hours of Service Act to report all instances of excess serv- 
 ice occurring on their respective lines. 
 
 * * *; and if any carrier, person, or corporation subject to the 
 provisions of this Act shall fail to make and file said annual reports 
 within the time above specified, or within the time extended by the 
 Commission, for making and filing the same, or shall fail to make 
 specific answer to any question authorized by the provisions of this 
 section within thirty days from the time it is lawfully required so to 
 do, such party shall forfeit to the United States the sum of one hun- 
 dred dollars for each and every day it shall continue to be in default 
 with respect thereto. The Commission shall also have authority by 
 general or special orders to require said carriers, or any of them, to 
 file monthly reports of earnings and expenses, and to file periodical 
 or special, or both periodical and special, reports concerning any mat- 
 ters about which the Commission is authorized or required by this or 
 any other law to inquire or to keep itself informed or which it is 
 required to enforce; and such periodical or special reports shall be 
 under oath whenever the Commission so requires; and if any such car- 
 rier shall fail to make and file any such periodical or special report 
 within the time fixed by the Commission, it shall be subject to the 
 forfeitures last above provided. Sec. 20 ^ Act February 4, 1887 [24 Stat, at L., 
 S79], as amended June 29^ 1906 [34 Stat, at L., 684], and June 18, 1910 [36 Stat, 
 at L., 539,556.] 
 
 It is ordered, That all carriers subject to the provisions of the Act 
 entitled "An Act to promote the safety of employees and travelers 
 upon railroads by limiting the hours of service of employees thereon," 
 approved March 4, 1907, report v^dthin 30 days after the end of each 
 month, under oath, aU instances where employees subject to said Act 
 have been on duty for a longer period than that provided in said Act . 
 
 It is further ordered, That the accompanying forms entitled "Inter- 
 state Commerce Commission Hours of Service Report," and the 
 method embodied in the instructions therein set forth, be, and the 
 same are hereby, adopted and prescribed; and all common carriers 
 subject to said Act are hereby notified to use and follow the said pre- 
 scribed fonns and method in making monthly reports of hours of 
 service of employees on duty for a longer period than that named in 
 said Act, commencing with and making the first report for the month 
 of July, 1911. — Order of the Commission of June 28, 1911. 
 
 It is ordered, That the accompanying forms entitled "Interstate 
 Commerce Commission Hours of Service Report," and designated as — 
 Form No. 1. — Oith and summary for use when there is excess 
 service; Form No. 8. — Oath for use when there is no excess service; 
 Form No. 2. — Employees on duty more than 16 consecutive hours; 
 Form No. 3. — Employees returned to duty after 16 hours continuous 
 service, without 10 consecutive hours of duty; Form No. 4. — Em- 
 ployees returned to duty, after aggregate service of 16 hours, without 
 8 consecutive hours off duty; Form No. 6. — Employees continued on 
 
174 HOURS OF SERVICE ACT. 
 
 duty after aggregate service of 16 hours; Form No. 6. — Employees 
 at continuously operated day-and-night oflaiees, who dispatch, report, 
 transmit, receive, or deliver orders affecting train movements, and 
 who were on duty more than 9 hours in any 24-hour period; Form 
 No. 7. — Employees at offices operated only during the daytime, or 
 not to exceed 13 hours in a 24-hour period, who dispatch, report, 
 transmit, receive, or deliver orders affecting train movements, and 
 who are on duty for a longer period than 13 hours in any 24-hour 
 period; and the method embodied in the instructions therein set forth, 
 be, and the same are hereby, adopted and prescribed; and all common 
 carriers subject to said Act are hereby notified to use and follow the 
 said prescribed forms and method in making monthly reports of 
 hours of service of employees on duty for a longer period than that 
 named in said Act, commencing with and making the first report for 
 the month of July, 1012. — Order of the Commission of April 8, 1912. 
 
 Baltimore cfc 0. R. Co. v. /. C. C, 221 U. S., 612. 
 Supreme Court, May 29, 1911. 
 
 Finding that the objections to the validity of the statute are 
 not well taken, we are brought to the question whether the Inters 
 state Commerce Commission has authority to require the reports 
 called for by its order. 
 
 Section 4 of the Act provides: ^'It shall be the duty of the 
 Interstate Commerce Commission to execute and enforce the 
 
 Provisions of this Act, and all powers granted to the Interstate 
 ommerce Commission are hereby extended to it in the execu- 
 tion of this Act." 
 
 The Commission then may call to its aid in the enforcement 
 of the Act "all powers granted" to it. And, although there 
 might have been doubt as to the adequacy of the authority of 
 the Commission, under the law as it formerly stood, to require 
 these reports, there can be none now in view of the amendment 
 of section 20 of the Act to regulate commerce by the Act of 
 June 18, 1910, chap. 309 [36 Stat., 556]. As so amended, this 
 section contains the following proAdsion: '^The Commission shall 
 also have authority by general- or special orders to require said 
 carriers, or any of them, to file monthly reports of earnings and 
 expenses, and to file periodical or special, or both periodical and 
 special, reports concerning any matters about which the Com- 
 mission is authorized or required by this or any other law to 
 inquire or keep itself informed or wluch it is required to enforce ; 
 and such periodical or special reports shall be under oath when- 
 ever the Commission so requires; * * * '» 
 
 This clearly embraces the power which the Commission 
 here asserts, and it is certainly now entitled to promulgate an 
 order requiring reports to be made. It follows that as, under 
 the stipulation of record here, the requirement of the Commis- 
 sion is to operate whoUy in the future and it has been suspended 
 awaiting the final determination of this cause, the question of 
 the authority of the Commission at the time the order was made 
 has become a moot one. Were there no other question before 
 us the appeal would accordingly be dismissed, and to justify a 
 
HOURS OF SERVICE REPORTS. 175 
 
 reversal of the judgment and the sustaining of the complainant^s 
 bill other grounds must appear. 
 
 Nor can it be said, so far as the scope of the requirement of 
 the order is concerned, that it goes beyond the authority which 
 has been conferred upon the Commission. The order relates to 
 the employees who are ''subject to said Act." The bill alleges 
 that, in the original forms prescribed, the carrier was required 
 to show the employees who were "either on duty for a period of 
 time in excess of that contemplated by the Act or who had not 
 been off duty after any period of service for the length of time 
 prescribed by the Act, and in the case of every such employee 
 the carrier was required to state the cause of and the facts, if any, 
 explanatory of the excess service thus rendered by the employee." 
 By the amended instructions set forth in the stipulation, it 
 appears that ''in case no employee has been employed in excess 
 01 the time named in said Act, and in case no employee has gone 
 on duty with less than the statutory period off duty," a separate 
 form of oath to that effect will be accepted in Heu of the forms 
 which are to be used in detailing excess service. And, as akeady 
 noted, the reports are to be made by the secretary or similar 
 officer. 
 
 To enable the Commission properly to perform its duty to 
 enforce the law, it is necessary that it should have full informa- 
 tion as to the hours of service exacted of the employees who are 
 subject to the provisions of the statute, and the requirements ta 
 which we have referred are appropriate for that purpose and are 
 comprehended within the power of the Commission. — Hughes, 
 Justice, pp. 620-622. 
 
 TJ. S. V. Yazoo c& M. V. R. Co., 203 Fed., 159. See also U, S. v, 
 Chicago, M. & P. S, By. Co., 195 Fed., 783. 
 
 But see: 
 
 Northern Pacific Ry. Co. v. U. S., 213 Fed., 162. 
 
 Circuit Court of Appeals, 8th Circuit, March 21, 1914. 
 
 Reason and authority aUke teach that the act of omitting 
 from a periodical report filed in good faith an instance or item 
 which should have teen included therein, or a mistake in the 
 information which the report contains, is not the offense of fail- 
 ing to Gie any such periodical report. [ U. S. v. Four Hundred 
 Twenty Dollars, 162 Fed., 803; BonneU v. GriswoU, 80 N. Y., 
 128; Pier v. Hanmore, 86 N. Y., 95; Matthews v. Patterson, 26 
 Pac, 812; Whitney Arms Co. v. Barlow,^ 63 N. Y., 62.] 
 
 ^ And the conclusion is that an omission by a carrier from the 
 periodical report of the instances of excessive service of its em- 
 ployees made and filed in good faith within the time prescribed 
 therefor by the Interstate Commerce Commission, under the 
 amendment of section 20 of the Act to regulate commerce [36 
 ' Stat, at L., 556], of one or more instances that should have been 
 included therein, or any mistake of law or fact therein made in 
 good faith, does not subject the carrier to liability for the pen- 
 alties or forfeitures denounced by that amendment for the 
 failure to file a periodical report. — Sanhom, C. J., p. 168. 
 
176 HOURS or SERVICE ACT. 
 
 (a). And a carrier is not excused from the necessity of filing such 
 reports by the failure of the Commission to have included with its 
 Order of June 28, 1911, as served upon such carrier, the forms 
 therein described. 
 
 TJ. S. V. Oregoiv- W. R. <& N. Co. [unreported]. 
 
 District Court, Eastern District oi Washington, April 20, 1914. 
 The sole defense interposed was that a copy of the forms 
 was not served upon the company together with the order as 
 required by law and the order of the Commission. This defense 
 is highly technical and in my opinion should not prevail. The 
 notices and processes referred to in the act creating the Com- 
 merce Court are notices and processes of a jurisdictional nature 
 in suits or proceedings inter partes pending before the Commis- 
 sion or the Commerce Court, and the provision as to service 
 of such notices and processes has no application to general 
 administrative orders affecting all caiTiers such as the one now 
 under consideration. The requirement of service of this order 
 rests entirely on the terms of the order itself and the service was 
 intended for no other purpose than to impart notice to the 
 carriers affected by it. The order as served referred to the forms 
 to be used, the carrier actually received the forms and made 
 reports on them for the veiy months during which the delin- 
 quencies complained of occurred, but the name and excessive 
 hours of service of the employee in question were omitted there- 
 from by inadvertence or mistake. The company had therefore 
 full notice of the order and its requirements and full opportunity 
 to comply with its provisions, and the most formal service could 
 accomplish nothing beyond this. — RudJcin, D. J. 
 
 It is not within the province of a court to impose upon a carrier 
 for its violation of the commission's order requiring reports, 
 a smaller penalty than that prescribed by section 20 of the Act 
 to regulate commerce — $100 per day for each and every day such 
 carrier shall have continued in default. 
 
 TJ, S. V. Yazoo cfc M. V. R. Co,, 203 Fed., 159. 
 
 District Court, Western District of Tennessee, Feb. 22, 1913. 
 The defendant admits the allegations in the petition and 
 thereby says that it is technically guilty of disobeying the order 
 of the Interstate Commerce Commission; but it insists that it 
 should not be subjected to a penalty of $100 for each day it so 
 failed to report to the commission the particular infractions 
 charged after the report was due because of the situation existing 
 at the time of the failure to report. 
 
 At the hearing it was conceded in open court that the viola- 
 tions of the 16-hour Act, set out in the petition of the Govern- 
 ment, occurred at a time when the defendant company was oper- 
 ating its railroad in and out of Memphis under the most unfavor- 
 able circumstances, growing out of a strike by its employees in 
 its yards. A detailed statement of the conditions existmg at that 
 time is not necessary, but it is sufficient to say that they were 
 of such character that the court should take them into con- 
 sideration in fixing the penalties in this case, if authority for so 
 doing can be found under the law. 
 
HOURS or SERVICE REPORTS. 177 
 
 The only question presented for decision, therefore, is 
 whether it is discretionary with the court to impose a less or a 
 different penalty than is prescribed by the twentieth section of 
 the Act to regulate commerce, approved June 18, 1910. [36 
 Stat, at L., 556.] * * * It is urged that there is a difference 
 between the mandatory provision that a carrier shall forfeit 
 $100 per day for failing to file its annual report and the provision 
 in resi)ect to its failure to file special reports, which provides 
 that "it shall be subject to the forfeitures last above provided," 
 and argues that had Congress intended that the same mandatory 
 penalty should accrue as to special reports as accrue in reference 
 to annual reports the same language would have been employed. 
 
 The exact difference in the language employed by Congress is 
 that in the one instance, to wit, the failure to file the annual 
 report, the Act provides that ^'such party shall forfeit to the 
 United States the simoi of one hundred dollars for each and every 
 day it shall continue to be in default in respect thereto," and in 
 the other instance, to wit, the failure to file the special report, it 
 provides: ''and if such carrier shall fail to make and file any 
 such periodical or special report within the time fixed by the 
 commission it shall be subject to the forfeitures last above pro- 
 vided," which forfeiture last above provided is the penalty of 
 $100 per day. * * * 
 
 I am of the opinion that the statute is mandatory in respect 
 to the penalty for failure to comply with the order of the com- 
 mission in question, and that the court has no discretion in the 
 premises. — McCall, D. J., pp. 160, 161, 162. 
 See also U. S. v. Chicago, M. db P. S. By. Co., 195 Fed., 783. 
 
 Tlie Orders of the Commission requiring reports of excess service 
 are not in contravention of the Fourth and Fifth Amendments to 
 the Constitution of the United States. 
 See Item B-1-(c), p. Ill, ante. 
 50611—15 12 
 
v^ 
 
 Part III. INTERSTATE COMMERCE. 
 
 "INTERSTATE COMMERCE" DEFINED. 
 
 Jnterstate commerce consists essentially of commercial intercourse between the 
 
 * States, 179; 
 
 (a) Traffic hauled from one point in a State to another point in the same 
 State, passing en route through a portion of another State, is interstate com- 
 merce, 180. 
 
 2. The interstate character of a shipment attaches when it begins to move as an 
 
 article of interstate commerce, and continues until its ultimate destination 
 is reached, 180; 
 
 (a) And the temporary stoppage of a car, even for repair, does not withdraw 
 it from the uses of interstate commerce, 181. 
 
 (b) Employees on work trains, engaged in picking up logs along the right of 
 way for interstate shipment, are engaged in interstate commerce, 182; 
 
 3. A car moved for the purpose of being laden with an interstate shipment is 
 
 used in interstate commerce, 182 ; 
 (a) And in the absence of evidence to the contrary, the fact that a car was sub- 
 sequently hauled by a carrier to an interstate destination is properly to be 
 considered by the jury in determining its intended destination at the time 
 it was moved for lading, 183. 
 
 4. The weighing of cars to determine the weight of their interstate contents is 
 interstate commerce, 183. 
 
 6. The transportation by a railroad company of interstate shipments for an inde- 
 pendent express company is interstate commerce, 183. 
 
 6. The transportation by an interstate carrier of its own products or property is 
 interstate commerce, 184. 
 
 7. Merely rebilling a shipment does not affect its interstate character, 184; 
 
 (a) But a diverting order changes, ab initio, the destination of a shipment, 184. 
 
 8. The relation between interstate and intrastate commerce is so intimate, and 
 their functions so commingled, that conditions injuriously affecting the latter 
 jeopardize the former, 185. 
 
 B. FEDERAL CONTROL OF INTERSTATE COMMERCE. 
 
 1. The power to regulate commerce is general, 186. 
 
 2. All commerce is subject either to federal or to state control, 186. 
 
 3. Federal power over interstate commerce is as complete on land as on the 
 navigable waters of the nation, 187. 
 
 X 4i The power of Congress over interstate commerce is supreme and paramount to 
 ^ the authority of all the States, 187. 
 
 6. One system of regulation of interstate commerce is alone appropriate, 187; 
 
 (a) And a state statute which attempts to regulate interstate commerce or con- 
 flicts with a valid federal regulation of such commerce is void, 187; 
 
 (i) Even pending the effective date of such federal statute, 188; 
 (n) And even though the limitations of the state enactment are less stringent 
 than those permitted by the federal statute, 189; 
 
 (b) But a state statute which merely regulates the instrumentalities of com- 
 merce without encroaching upon the prerogatives of the Federal Government 
 is valid as an exercise of the police power of the State, 189; 
 
 178 
 
V 
 
 FEDERAL CONTROL— DEFINITIONS. 179 
 
 (i) And the safety appliance act of a State is not invalid as being repugnant 
 to tlie federal Acts if tlie provisions of the former are consistent with the 
 latter with respect to the appliances prescribed, 189. 
 
 6. In the regulation of interstate commerce Congress may incidentally regulate V 
 intrastate or local commerce, 190. 
 
 7. The regulation of interstate commerce comprehends the power to regulate its 
 agencies and instrumentalities, 190; 
 (a) And the rails and roadway of, as well as the cars used on, interstate railroads 
 
 are instrumentalities of interstate commerce, 190. 
 
 8. The obstruction of interstate commerce is unlawful, 191. 
 
 A. "INTERSTATE COMMERCE" DEFINED. 
 
 1. "Interstate Commerce" consists essentially of commercial inter- 
 course between the States: 
 WahasTi R. Co. v. V. S.; Elgin, J. <& E, By. Co. v. TJ, S., 168 Fed., 1. 
 Circuit Court of Appeals, 7th Circuit, February 3, 1909. 
 
 Interstate commerce, iii its broadest sense, is commercial 
 intercourse between the States; the obverse of which would seem 
 to be that commercial intercourse that is wholly within the State is 
 not interstate commerce. — Grosscwp, C. J, [concurring], p. 8. 
 TJ. S. Y. Chicago Great Western Ry. Co., 162 Fed., 775. 
 
 District Court, Northern District of Iowa, May 6, 1908. 
 
 By ''interstate traffic" is meant, as you all know, traffic that 
 is moved from one State or Territory into or through some other 
 State or Territory. — Reed, D. J., p. 781. 
 U. S. V. Wahash R. Co. [unreported]. 
 
 District Court, Eastern District of Illinois, November 19, 1907. 
 Interstate commerce, as you understand, of course, is traffic 
 between one State and another State — shipments from one State 
 to another State. That is interstate traffic. — Wright, D. J. 
 U. S. V. Baltimore <& 0. R. Co. [imreported]. 
 
 District ( ourt, Southern District of Ohio, June 10, 1909. 
 The defendant is engaged in interstate commerce, which 
 means commerce between different States of the Union. — Sater. 
 
 TJ. S. V. Southern Pacific Co. [unreported]. 
 
 District Court, District of Nevada, November 24, 1909. 
 
 Interstate traffic is traffic originating in one State and des- 
 tined and consigned to some point in another State. — Farringtony 
 D.J. 
 
 TJ. 8. V. Central of Georgia Ry. Co., 157 Fed., 893; TJ. S. v. Colorado 
 & N. W. R. Co., 157 Fed., 321. See also: 
 
 Northern Pacific Ry. Co. v. State of Washington, 222 U. S., 370. 
 Supreme Court, January 9, 1912. 
 The train, although moving from one point to another in 
 the State of Washington, was hauling merchandise from points 
 outside of the State destined to points within the State and 
 from points within the State to points in British Columbia, as 
 well as in carrying merchandise which had originated outside 
 of the State and was in transit through the State to a foreign 
 destination. This transportation was interstate commerce, and 
 
180 INTEESTATE COMMERCE. 
 
 the train was an interstate train, despite the fact that it may 
 also have been carrying some local freight. In view of the 
 imity and indivisibility of the service of the trabi crew and 
 the paramount character of the authority of Congress to regu- 
 late commerce, the Act of Congress was exclusivel}' controlluig 
 [Southern By. Co. v. U. S,, 222 U. S., 20].— White, Chief Justice, 
 pp. 375-376. 
 
 (a). Traffic hauled from one point in a State to another point in the 
 same State, passing en route through a portion of another State, 
 is interstate commerce. 
 U. S. V. EHe R. Co., 16G Fed., ?>b2. 
 
 District Court, District of New Jersey, January 12, 1909. 
 If merchandise be consigned from one point m a State to 
 another point in the same State, but is in transit carried through 
 a portion of another State, the transaction constitutes inter- 
 state commerce [Hanley v, Kansas City Southern Ry. Co., 187 
 U. S., Q17].—Lanning, D. J., p. 355. 
 U, 8, V. Chicago Great Western Ry. Co., 162 Fed., 775. 
 
 2.iThe interstate character of a shipment attaches when it begins 
 to move as an article of interstate commerce, and continues until 
 its ultimate destination is reached: 
 U. S, V. Geddes, 131 Fed., 452. 
 
 Circuit Court of Appeals, 6th Circuit, June 8, 1904. 
 
 In the cases oi The Daniel Ball, 10 Wall., 557, 565, and 
 Coe V. Errol, 116 U. S., 517, 528, it was held that ''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." — Richards, C. J., pp. 453-454. 
 St. Louis db S. F. R. Co. v. Delk, 158 Fed., 931. 
 
 Circuit Court of Appeals, 6th Circuit, March 3, 1908. 
 
 The question which seems first in order is oiie raised by the 
 plaintiff in error, and is whether the car to which the defective 
 coupling was attached was at the time of the accident employed 
 in interstate commerce. The plaintiff in error claims that it was 
 not, and was laid by for repairs. But we are incUned to think 
 otherwise. Its cargo had not yet reached its destination, and 
 was not then ready for the deUvery to the consignee wherewith 
 the commerce would have ended. Its stoppage in the yard was 
 an incident to the transportation. The injury to the coupler 
 was one easily repaired without being taken to a repair shop, and 
 the car was being hauled upon the track when the accident 
 occurred. — Severens, C. J., p. 933. 
 Belt Ry. Co. oi Chicago v. U. S., 168 Fed., 542. 
 
 circuit Court of Appeals, 7th Circuit, February 3, 1909. 
 ''I charge you that when a commodity originating at a 
 point in one State and destined to a point in another State is 
 put aboard a car, and that car begins to move, interstate com- 
 merce has begun, and that interstate commerce it continues to 
 be until it reaches its destination" [Charge of lower court sus- 
 tained], — Baker, C. «/., p. 543. 
 
DEPINITIONS. 181 
 
 Chicago, M. cfc SL P. Ry. Co. v. VoelJcer, 129 Fed., 522. 
 
 Circuit Court of Appeals, 8th Circuit, March 26, 1904. 
 
 Whether that [the ultimate destination] was near by or 
 remote is not material, because the shipment had originated in 
 another State and was already impressed with the character of 
 interstate traffic, which would follow it at least until the actual 
 transit ceased. — Van Devanter, C. J., p. 528. 
 U. S. V. Colorado cfc N. W. R. Co., 157 Fed., 321. 
 
 Circuit Court of Appeals, 8th Circuit, November 25, 1907. 
 Every part of every transportation of articles of commerce 
 in a continuous passage from an inception in one State to a pre- 
 scribed destination in another is a transaction of interstate com- 
 merce. Goods so carried never cease to be articles of interstate 
 commerce from the time thfey are started upon their passage in 
 one State until their delivery at their destination in the other is 
 completed and the}^ there mingle with and become a part of the 
 great mass of propert}' within the latter State. — Sanoom, C. J., 
 p. 323. 
 Pacific Coast Ry. Co. v. ^.-^S'., 173 Fed., 448. 
 
 Circuit Court of Appeals, 9th Circuit, October 4, 1909. 
 
 It [the decision of the court below] rests upon the fact that 
 the movement of the consigned goods to their ultimate destina- 
 tioQ from the point at which they were shipped in another State 
 was in part condm ted upon the road of the plaintiff in error, 
 and that the interstate character of the shipment did not end 
 until the transportation had reached its ultimate completion. 
 [Sustained]. — Gilbert, C. J., p. 452. 
 U. S. V. Central of Georgia Ry. Co., 157 Fed., 893. 
 
 District Court, Northern District of Alabama, Sept. 27, 1907. 
 It has been proven in this case, and there is no conflict in the 
 evidence, that both of the cars in question were carrying traffic 
 consigned from a point in one State to a point in another State. 
 This makes such traffic interstate traffic. While the evidence 
 does not show that the defendant hauled the car across the state 
 line, still the defendant is engaged in interstate traffic, no matter 
 how short the movement, if the traffic hauled is in course of 
 movement from a point in one State to a point in another. — 
 Hundley, D. «/., p. 894. 
 V. S. V. Western cfc A. R. Co., 184 Fed., 336; U, 8. v. Chicago, 
 M. cfe P. S. Ry. Co., 197 Fed., 624; Felt v. Denver <& R. G. R. 
 Co., 110 Pac, 215; TJ. S. v. Belt Ry. Co. of Chicago, D. C, N. D. 
 Illinois, Jan. 23, 1908, Landis, D. J. [unreported]; U. S. v. South- 
 em Ry. Co. and U. S. v. Atlantic Coast Line R. Co., D. C, D. 
 South Carolina, Feb. 24, 1909, Brawley, D. J. [unreported]. See 
 also North Carolina R. Go. v. Zachary', 232 U. S., 248. 
 
 (a). And the temporary stoppage of a car, even for repair, does 
 
 not withdraw it from tlie nses of interstate commerce : 
 Erie R. Co. v. Russell, 183 Fed., 722. 
 
 Circuit Court of Appeals, 2nd Circuit, December 2, 1910. 
 It is pointed out that the car was not being hauled at the 
 time of the accident, but was standing upon a switch track for 
 
182 INTERSTATE COMMERCE. 
 
 the insertion of the knuckle in the coupling apparatus, and it is 
 contended that it was not then being used within the contem- 
 plation of the statute. 
 
 We think upon the authority of Johnson v. Southern Pacific 
 Co., 196 U. S., 1, that this contention is not well founded. Tlie 
 car with the defective coupler was not withdrawn from use. 
 Although billed to the repair shop, it was not sent there, nor 
 was it sent to any place used especially for making repairs. The 
 insertion of the knuckle was a simple matter. The car was 
 stopped only temporarily, and it was intended to couple it to 
 the other cars as soon as repaired. These facts seem clearly 
 to distinguish this case from those cases cited in the defendant's 
 brief, where accidents occurred when cars had been sent to 
 repair shops or placed upon dead tracks used for repair pur- 
 poses. — Noyes, U. J., pp. 724-725. 
 But see Siegel v. New Yorh Central & 11. R. R. Co., 178 Fed., 873 . 
 
 —(b). Employees on work trains, engaged in picking up logs along 
 the right of way for interstate shipment, are engaged in inter- 
 state commerce. 
 Z7. S. V. Chicago, M. & P. S. Ry. Co., 197 Fed., 624. 
 
 District Court, Eastern District of Washington, April 10, 1912. 
 
 The train in question was what is commonly kno^\Ti as an 
 extra or work tram operating between the stations of East on 
 and Keechelus, in Kittitas County. The train crew was engaged 
 in picking up logs along the right of way, loading them onto 
 the cars and hauling the loaded cars to Whittier station, in 
 Edttitas County, where they were taken up by one of the defend- 
 ant's regular trains and transported to St. Joe, in the State of 
 Idaho. * * * 
 
 Within this rule [that a commodity is impressed with the 
 character of interstate traffic as soon as it begins to move as an 
 article of trade from one State to another] employees of a rail- 
 way company engaged in hauling freight from some interme- 
 diate point on the railway line to another point where it is 
 taken up by the regular trains for interstate shipment are 
 employed in interstate commerce, and the railway company 
 itself is engaged in interstate commerce. — RudJcin, D. /., pp. 
 626, 627. 
 See also Johnston v. Chicago Great Western Ry Co., 164 S. W., 260. 
 
 8« A car moved for the purpose of being laden with an interstate 
 shipment is used in interstate commerce : 
 Chicago dh N. W. Ry. Co. v. U. S., 168 Fed., 236. 
 
 Circuit Court of Appeals, 8th Circuit, March 10, 1909. 
 
 Reading these statutes together, as they have been inter- 
 preted by the courts, they include, first, vehicles actually mov- 
 mg interstate traffic; second, such vehicles, though empty. 
 
DEFINITIONS. 183 
 
 when moving to points for the purpose of receiving interstate 
 traffic, or otherwise commercially used by the carrier; and, third, 
 vehicles used in connection with vehicles embraced in either of 
 the two former classes. — Amidon, I). J., p. 237. , 
 Bresky v. Minneapolis db St. L. By. Co,, 132 N. W., 337. 
 Supreme Court of Minnesota, August 11, 1911. 
 
 There is an important distinction between merchandise 
 which may be the subject of interstate commerce and the car 
 in which such merchandise is moved. The merchandise is not 
 an article of interstate commerce before transportation begins, 
 but the car or engine is within the Safety Appliance Act if used 
 as an instrunaent in moving interstate commerce, and such use 
 begins when it is moved for the purpose of receiving merchan- 
 dise to be shipped out of the State. — Bunn, J., p. 339. 
 
 — (a) . And in the absence of evidence to the contrary, the fact that a 
 car was subsequently hauled by a carrier to an interstate desti- 
 nation is properly to be considered by the jury in determining 
 its intended destination at the time it was moved for lading : 
 Bresky v. Minneapolis <& St. L. Ry. Co., 132 N. W., 337. 
 Supreme Court of Minnesota, August 11, 1911. 
 
 Defendant offered no testimony to show that it was not its 
 intention, when it ordered the car moved, to ship the scrap iron 
 out of the State. In view of this failure to attempt to prove 
 that it had no such intention, a fact which was much easier for 
 defendant to prove than for plaintiff to show the contrary, we 
 think the evidence of the subsequent shipment to Minneapolis 
 of the scrap iron loaded in this car was sufficient to make the 
 question one for the jury. If it was not defendant's purpose to 
 snip the scrap iron, why was it loaded in cars ? If it was not its 
 intention to ship to Minneapolis, where did it intend to ship it, 
 and why was the plan changed ? Scrap iron in carload lots is too 
 valuable to throw away. It is a fair inference, in the absence 
 of evidence, that it was necessary, in order to obtain its value, 
 to get it to the markets or mills in one of the larger cities East. — 
 Bunn, J., p. 339. 
 
 4. The weighing of cars to determine the weight of their interstate 
 
 contents is interstate commerce. 
 Wheeling Terminal Ry. Co. v. RusseU, 209 Fed., 795. 
 
 Circuit Court of Appeals, 4th Circuit, December 8, 1913. 
 The cars were being weighed to determine the net we^ht 
 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. [St. 
 Louis & S. F. Ry, Co. v. Seale, 229 U. S., 156].— -Rose, D. /., 
 pp. 798-799. 
 
 5. The transportation by a railroad company of interstate shipments 
 
 for an independent express company is interstate commerce. 
 U. 8. V. Colorado cfc N. W. R. Co., 157 Fed., 342. 
 
 Circuit Court of Appeals, 8th Circuit, November 25, 1907. 
 But although the express company was not one of the com- 
 mon carriers engaged in interstate commerce to which the origi- 
 
184 INTERSTATE COMMERCE, 
 
 nal Interstate Commerce Act applied [ V, S. v. Morsman 42 Fed., 
 448; Southern Indiana Exp. Co. v. U. S. Exp. Co., 88 Fed., 
 659], the box of liquor it caused to be transported from Mis- 
 souri to Colorado was an article of interstate commerce, its car- 
 riage was a transaction of that commerce, and the express com- 
 pany's participation in its transportation was engaging in inter- 
 state commerce. [Crutcher v. Kentuclcij, 141 U. S., 47, 57, 58, 59; 
 Osborne v. Florida, 164 U. S., 650, 655; Caldwell v. North Carolina, 
 187 U. S., 622, 629]. Moreover, the Interstate Commerce Act had 
 been so amended that express companies were subject to its 
 provisions before the transportation here in issue was conducted. 
 * * * The transportation by a common carrier by railroad 
 of articles of mterstate commerce for an independant express 
 companv is engaging in interstate commerce by railroad as 
 effectually as their carriage by it for the vendors or consignors. — 
 Sanhom, C. J., pp. 343-344. 
 
 6. The transportation by an interstate carrier of its own products or 
 
 property is interstate commerce. 
 
 U. S. v. CUcago, M. cfc St. P. Ry. Co., M9 Fed., 486. 
 
 District Court, Southern District of Iowa, November 27, 1906. 
 Another defense pleaded is that, as the company was haul- 
 ing its own rails, and would receive no compensation, it was not 
 engaged in commerce or traffic. That is to sav, that construc- 
 tion trains with cars both hauled and used, both locally and 
 across state lines, and cars hauled and used, as just stated, for 
 hauling its own products, can stiU be equipped with links and 
 pins and fastened with chains, and can be carried back and 
 forth over thousands of miles of roads. Counsel will not expect 
 me to discuss that. — McPherson, D. J., pp. 490-491. 
 
 TJ, S. V. Southern Ry. Co. [unreported]. 
 
 District Court, District of South Carolina, February 24, 1909. 
 It (the com-t) will instruct you that if the car referred to, 
 containing sand, was being moved from South Carolina into 
 North Carolina for the company's own purposes, if it was car- 
 ried in a train which was engaged in interstate commerce, and 
 this car was defective, it falls within the denunciation of the 
 statute still. — Brawley, D. J. 
 
 Johnston V. Chicago Great Western Ry. Co., 164 S. W., 260. See 
 also TJ. S. V. CUcago c& N. W. Ry. Co., 157 Fed,, 616; Barlcer v. 
 Kansas City, M. cfc 0. Ry. Co., 129 Pac, 1151. 
 
 7. Merely rebilling a shipment does not affect its interstate character : 
 V, S. V. Colorado cfe N. W. R. Co., 157 Fed., 321. 
 
 Circuit Court of Appeals, 8th Circuit, November 25, 1907. 
 The rebilling practiced by the railroad companies without 
 any new consents or contracts with the owners could not destroy 
 or affect the interstate character of the shipments or of the trans- 
 portation. — Sanborn, C. J., p. 324. 
 
 — (a). But a diverting order changes, ab initio, the destination of a 
 shipment. 
 U. S. V. Pacific Coast Ry. Co., 173 Fed., 453. 
 
 District Court, Southern District of California, June 13, 1908. 
 After that order had been sent to the agent at San Jose it 
 
DEFINITIONS. 185 
 
 was as though the original contract had read that Careaga, or 
 whatever was the point to which it was to be diverted, was the 
 ultimate destination. In other words^ the original contract was 
 so changed as to substitute Carea^a, or the other points on the 
 defendant's local line, for the points on the Southern Pacific 
 given in the wavbill as it was originally executed. — Wellborn, 
 D. J., p. 455. 
 
 The relation between interstate and intrastate commerce is so 
 intimate, and their functions so commingled, that conditions inju- 
 riously affecting the latter may jeopardize the former. 
 Southern By. Co. v. V. S., 222 U. S., 20. 
 
 Supreme Court, October 30, 1911. 
 
 Speaking only of railroads which are highways of both inter- 
 state and intrastate commerce, these things are oi common know- 
 ledge: Both classes of traffic are at times carried in the same car, 
 and when this is not the case the cars in which they are carried 
 are frequently commingled in the same train and in the switching 
 and other movements at terminals. Cars are seldom set apart 
 for exclusive use in moving either class of traffic, but generally 
 are used interchangeably in moving both; and the situation is 
 much the same with trainmen, switchmen, and like employees, 
 for they usually, if not necessarily, have to do with both classes 
 of traffic. Besides, the several trains on the same railroad are 
 not independent in point of movement and safety, but are inter- 
 dependent, for whatever brings delay or disaster to one, or results 
 in disabling one of its operatives, is calculated to impede the prog- 
 ress and imperil the safety of other trains. And so the absence 
 of appropriate safety appliances from any part of any train is a 
 menace not only to that train but to others. — Van Bevanter, Jus- 
 tice, p. 27. 
 Wabash R. Co. v. U. S.; Elgin, J. db E. By, Co. v. U. S., 168 Fed., 1. 
 
 Circuit Court of Appeals, 7th Circuit, February 3, 1909. 
 
 Now, if the same interstate carrier may haul on the same 
 interstate highway cars that need not be equipped because, 
 though regularly used in interstate traffic, they are empty at the 
 time [the Wahash Case] and also cars that need not be equpped 
 because they are laden with intrastate traffic exclusively [the Elgin 
 Case], the purpose of equpping the cars that are carrying inter- 
 state traffic would manifestly be largely impaired or destroyed; 
 for in switching movements, in derailments, and in collisions 
 disaster would come to the interstate car quite irrespective of the 
 character of the other cars involved. — Baker, C. J,, p. 5. 
 U. S. V. Great NoHhem By. (?o.,145 Fed., 438. 
 
 District Court, Eastern District of Washington, June 11, 1906. 
 Cars containing state traffic could be commingled with those 
 containing interstate traffic, and thus defeat the purposes of the 
 legislation upon the subject. The effect of this would be to 
 endanger the train engaged in interstate traffic. Again a carrier 
 could use trains engaged entirely in state traffic upon its lines, 
 without the requisite ecjuipmentj which might result in injury to 
 passengers by commg in collision with a train engaged in inter- 
 state traffic. — Whitson, D. J., p. 439. 
 
186 INTERSTATE COMMERCE. 
 
 State V. OUcago, M. & St. P. Ry. Co., 117 N. W., 686. 
 Suprome Court of Wisconsin, September 29, 1908. 
 
 The direction and dispatching of every train on jin inter- 
 state railway necessarily involves knowledge in the train dis- 
 paxher of all other trains which are in the same vicinity at the 
 same time, and also ability to control such other trains. An 
 interstate train from Milwaukee to Chicago can not be safely 
 forwarded if, imder the direction of a separate employee, a local 
 train may be moving between Milwaukee and Racine over the 
 same track at the same time, or nearly so. The very switching 
 at local stations must be within the knowledge and under the 
 control of him who is to decide upon and direct the most impor- 
 tant of interstate transportation. Obviously division of author- 
 ity over these subjects would be fraught with great perils and 
 delays to both kinds of transportation. Hardly any act of a 
 train dispatcher on a busy railroad can be conceived which does 
 not affect both interstate and domestic commerce. He can not 
 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 
 coin-se, also, every interstate train carries some purely intra- 
 state freight or passengers. Many purely domestic trains carry 
 some freight or passengers in transit to extrastate destination. 
 It would seem tliat any severance of control over state from 
 interstate trains involved so much of confusion and probability 
 of danger, and its possibility even is so doubtful and experi- 
 mental, that no legislature would absolutely precipitate it with- 
 out careful consideration nor without providing in the act for 
 the event of the failure of such experiments. — Dodge, J., pp. 690- 
 691. 
 
 B. FEDERAL CONTROL OF INTERSTATE COMMERCE. 
 
 1. The power to regulate cominerce is general. 
 
 U. S. V. Colorado & N. W. R. Co., 157 Fed., 321. 
 
 Circuit Court of Appeals, 8th Circuit, November 25, 1907. 
 The power to regulate commerce among the States is general, 
 and includes authority to regulate aU its parts, (1) the subjects 
 of commerce, the articles, information, intelligence transported 
 from State to State; (2) the transactors of commerce, the mer- 
 chants, carriers, laborers who carry it on; (3) the means, the 
 vehicles, the cars, steamboats, coaches, wagons by which subjects 
 of commerce are carried; (4) the operation, the contracts, terms, 
 rates under which it is conducted. — Sanborn, C. J., p. 325. 
 
 2. All commerce is subject either to federal or to state control. 
 TJ, S. V. Chicago, M. & St. P. Ry. Co., 149 Fed., 486. 
 
 District Court, Southern District of Iowa, November 27, 1906. 
 In so far as commerce can be regulated or controlled, it falls 
 within the power of a State or of Congress. To say that it falls 
 within the power of neither is to argue an absurdity, and to say 
 that up in the air somewhere is a subject matter not grappled 
 with by either the State or Nation. I do not for one moment 
 believe in that kind of talk. — McPherson, D, J., p. 488. 
 
FEDERAL CONTROL. 187 
 
 3. Federal power over interstate commerce is as complete on land 
 
 as on the navigable waters of the nation. 
 
 TJ. S. V. Colorado cfc N. W. R. Co., 157 Fed., 321. 
 
 Circuit Court of Appeals, 8th Circuit, November 25, 1907. 
 The power to regulate interstate commerce is as complete 
 upon the land as upon the navigable waters of the nation, and 
 congressional regulation upon the former must be interpreted by 
 the same rules and enforced with the same efficiency as like regu- 
 lations upon the latter. * * * Congress has the same '^ full- 
 ness of controP' over interstate commerce carried upon railroads 
 and other artificial highways upon the land that it has over that 
 borne upon the navigable waters of the nation [In re Debs, 158 
 U. S., 564-591].— 5'a7i6om, C, J., pp. 326, 331-332. 
 
 4. The power of Congress over interstate commerce is supreme and 
 
 paramount to the authority of all the States. 
 
 Wabasli R. Co. v. V. S.; Elgin, J. (& E. Ry. Co. v. U. S., 168 Fed., 1. 
 Circuit Court of Appeals, 7th Circuit, February 3, 1909. 
 
 Therefore, Congress, under the power *Ho make all laws 
 which shall be necessary and proper for carrying into execution 
 the foregoing powers" of regulating interstate commerce, had 
 the right to make the laws in question: and they are paramount, 
 of course, to all laws of the States. — Baker, C. J., p. 5. 
 
 V. S. V. Colorado cfc N. W. R. Co., 157 Fed., 321. 
 
 Circuit Court of Appeals, 8th Circuit, November 25, 1907. 
 The people of the United States carved out of their sover- 
 eign power, reserved from the States, and granted to the Con- 
 gress of the United States exclusive and plenary power to regu- 
 late commerce among the States and with foreign nations. That 
 power is not subordinate, but is paramount to all the powers of 
 the States. If its independent and lawful exercise of this con- 
 gressional power and the attempted exercise by a State of any of 
 its powers impinge or conflict, the former must prevail and the 
 latter must give way. The Constitution and the acts of Con- 
 gress passed in pursuance thereof are the supreme law of the 
 Isind.San'born, C. J., pp. 330-331. 
 
 Erie R. Co. v. New York, 233 U. S., 671; Southern Ry. Co v. Rail- 
 road Com. of Ind., 100 N. E., 337 [and cases there cited]. 
 
 6. One system of regulation of interstate commerce is alone appro- 
 priate : 
 U, 8. V. Southern Ry. Co., 164 Fed., 347. 
 
 District Court, Northern District of Alabama, Sept. 25, 1908. 
 Uniformity of regulation affecting all the States is not only 
 permissible but is required. There must be only one system of 
 rules applicable alike to the whole country, which Congress alone 
 can prescribe [Mobile v. Kimball, 102 U. S., 691]. — Hundley, 
 D. J., p. 357. 
 
 — (a). And a state statute which attempts to regulate interstate com- 
 merce or conflicts with a valid federal regulation of such com- 
 merce is void. 
 
 Northern Pacific Ry. Co. v. State, 222 U. S., 370; Erie R. Co. v. 
 New York 233 U. S., 671; Detroit, T. c& I. Ry. Co. v. State, 91 
 
188 INTERSTATE COMMERCE. 
 
 N. E., 869; State v. Missouri Pacific Ry. Co., Ill S. W., 500; 
 State V. Texas & N. 0. R. Co., 124 S. W., 984; State v. Walash 
 R. Co., 141 S. W., 646; StateY. Northern Pacific Ry. 6'o.,93Pac., 
 945; State v. Chicago, M. <& St. P. Ry. Co., 117 N. W., 686. 
 
 — (i). Even pending the effective date of such federal statute; 
 
 Northern Pacific Ry. Co. v. State of Washington, 222 U. S., 370. 
 Supreme Court, January 9, 1912. 
 
 !But we are of opinion that this view is not compatible with 
 the paramount authority of (^ongress over interstate commerce. 
 It is elementary, and such is the doctrine announced by the cases 
 to which the court below referred, that [the right of a State to 
 apply its police power for the purpose of regulating interstate 
 '\/ conmerce, in a case like this, exists only from the silence of Con- 
 gress on the subject, and ceases when Congress acts on the sub- 
 ject or manifests its purpose to call into play its exclusive 
 powerj This being the conceded premise upon which alone the 
 state "Taw could have been made applicable, it results that as 
 the enactment by Congress of the law in question was an asser- 
 tion of its power, by the fact alone of such manifestation that 
 subject was at once removed from the sphere of the operation of 
 the authority of the State. To admit the fundaPiiental principle 
 and_ yet to reason that because Congress chose to make its pro- 
 hibitions take effect only after a year, the matter with which 
 Congress dealt remained subject to state power, is to cause the 
 Act of Congress to destroy itself; that is, to give effect to the 
 will of Congress as embodied in the postponing provision for 
 the purpose of overriding and rendering ineffective the expres- 
 sion of the will of Congress to bring the subject mthin its con- 
 trol — a manifestation arising from the mere fact of the enact- 
 ment of the statute. 
 
 We do not pause to cite authorities additional to those 
 referred to by the court below, but we observe in passing that 
 the aspect in which we view the question was cogently stated 
 by the Supreme Court of the State of Missouri in State v. Missouri 
 Pacific Ry. Co., 212 Mo., 658, and has also been lucidly ex- 
 pounded by the Supreme Court of the State of Wisconsin in 
 State V. Chicago, M. & St. P. Ry. Co., 136 Wis., 407. 
 
 But if we pass these considerations and consider the issue 
 before us as one requiring merely an interpretation of the statute, 
 we are of opinion that it becomes manifest that it would cause 
 the statute to destroy itself to give to the clause postponing its 
 operation for one year the meaning which must be affixed to it 
 in order to hold that during the year of postponement state 
 
 Eolice laws applied. In the first place, no conceivable reason 
 as been, or we think can be, suggested for the postponing pro- 
 vision if it was contemplated that the prohibitions oi state laws 
 should apply in the meantime. Tliis is true because if it be that 
 it was contemplated that the subject dealt with should be con- 
 trolled during the year by state laws, the postponement of the 
 prohibitions of the act could accomplish no possible purpose. 
 This is well illustrated by this case, where, by the ruling below, 
 
FEDERAL CONTROL. 189 
 
 a state regulation substantialljr similar to that contained in the 
 Act of Congress is made applicable. In the second place, the 
 obvious suggestion is that the purpose of Congress in giving 
 time was to enable the necessary adjustments to be made by 
 the railroads to meet the new conditions created b^ the Act, a 
 purpose which would of course be frustrated by giving to the 
 provision as to postponement a significance w^hich would destroy 
 the very reason which caused it to be enacted. — White, Chief 
 Justice, pp. 378-379-380. 
 Erie R. Co, v. New York, 233 U. S., 671 [Reversing the judgment 
 of the Court of Appeals of New York in People v. Erie R. Co.j 91 
 N. E. 849]; State v. Missouri Pacific Ry. Co., Ill S. W., 500; 
 State V. Texas & N. 0. R. Co., 124 S. W., 984. But see Lloyd v. 
 North Carolina R. Co., 66 S. E., 604; State v. Northern Pacific 
 Ry. Co., 93 Pac, 945. 
 
 -(ii). And even thougli the limitations of the state enactment are less 
 stringent than those permitted by the federal statute : 
 
 State V. Chicago, M. & St. P. Ry. Co., 117 N. W., 686; State v. 
 Northern Pacific Ry. Co., 93 Pac, 945; State v. Missouri Pacific 
 Ry. Co., Ill S. W., 500; State v. Texas dc N. 0. R.Co., 124 S. W., 
 984; State v. Wabash R. Co., 141 S. W., 646. See also EHe R. 
 Co., V. New York, 233 U. S., 671. [Reversingthe judgment of the 
 Court of Appeals of New York in People v. Erie S. c/o., 91 N. E., 
 849]. But see Lloyd v. North Carolina R. Co., 66 S. E., 604. 
 
 -(b). But a state statute which merely regulates the instrumentalities 
 of commerce without encroaching upon the prerogatives of the 
 Federal Government is valid as an exercise of the police power 
 of the State: 
 
 Detroit, T. cfc /. Ry. Co. v. State of Ohio, 91 N. E., 869. 
 Supreme Court of Ohio, March 15, 1910. 
 
 The regulation of commerce among the States is within the 
 exclusive jurisdiction of Congress, but it is well settled that a 
 state statute, enacted in the exercise of its police power, not 
 regulating or directly affecting interstate commerce or in conflict 
 with federal regulations, but merely regulative of the instrumen- 
 talities of commerce, is not void; and when such state regulations 
 do conflict with federal regulations they are not void on the 
 ground that the State has exercised a power exclusively in Con- 
 
 fress, but because the Constitution and the laws of the United 
 tates made in pursuance thereof are the supreme law of the 
 land. — Summers, Ch. J., p. 871. 
 Luken v. Lake Shore cfc M. S. Ry. Co., 94 N. E., 175. 
 
 -(i). And the safety appliance act of a State is not invalid as being 
 repugnant to the federal Acts if the provisions of the former are 
 consistent with the latter with respect to the appliances prescribed. 
 
 Southern Ry. Co. v. Railroad Com. of Ind., 100 N. E., 337; Luken v. 
 Lake Shore & M. S. Ry. Co., 94 N. E., 175. See also PiUs- 
 hurgh, C, C. cfc St. L. Ry. Co. v. State, 87 N. E., 1034 [full-crew 
 law of Indiana]. 
 
190 Iin:ERSTATE COMMERCE. 
 
 6. In the regulation of interstate commerce Congress may inci- 
 
 dentally regulate intrastate or local commerce. 
 Southern By. Co. v. U. S., 222 U. S., 20. 
 Supremo Court, October 30, 1911. 
 
 Is there such a close or direct relation or connection between 
 the two classes of traffic, wlien moving over the same railroad, 
 as to make it certain that the safety of the interstate traffic and 
 of those who are employed in its movement will be promoted in a 
 real or substantial sense by applying the requirements of these 
 Acts to vehicles used in moving the traffic which is intrastate as 
 well as to those used in moving 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 power to regu- 
 late intrastate commerce as such, but because its power to regu- 
 late interstate commerce is plenary and competently may be 
 exerted to secure the safety of the persons ana property trans- 
 ported therein and of those who are employed in such transpor- 
 tation, no matter what may be the source of the dangers which 
 threaten it. That is to say, it is no objection to such an exer- 
 tion of this power that the dangers intended to be avoided arise, 
 in whole or in part, out of matters connected with intrastate 
 commerce. — Van Devanter, Justice, pp. 26-27. 
 
 7. The regulation of interstate commerce comprehends the power to 
 
 regulate its agencies and instrumentalities : 
 TJ. S. V. Great Northern Ry. Co., 145 Fed., 438. 
 
 District Court, Eastern District of Washington, June 1 1 , 1906. 
 To sustain the demurrer would be to hold that it is beyond 
 the power of Congress to control the instrumentalities through 
 which interstate commerce may be carried on. But the pre- 
 rogative necessarily carries with it the authority to prescribe the 
 rules and regulations which shall apply to those engaged in it. — 
 Whitson, D. J., p. 439. 
 U. S. V. Southern Ry. Co., 164 Fed., 347. 
 
 District Court, Northern District of Alabama, Sept. 25, 1908. 
 From what has been said above, and the authorities cited, 
 it is plain, therefore, that ICongress. in regulating those instru- 
 mentahties of commerce, to wit, '' trains, locomotives, tenders, 
 cars, and similar vehicles used on any railroad engaged in inter- 
 state commerce," was acting entirely within the scope of its 
 authority conferred by the Constitutioju\and the first four 
 grounds of the demurrer are, therefore, not weU taken. — Hund- 
 ley, D. J., p. 354. 
 
 — (a). And the rails and roadway of, as well as the cars used on, inter- 
 state railroads are instrumentalities of interstate commerce. 
 V. S. V. Southern Ry. Co., 164 Fed., 347. 
 
 District Court, Northern District of Alabama, Sept. 25, 1908. 
 The engine engaged in interstate commerce is an instru- 
 mentaHty of that commerce and may be regulated by Congress. 
 The cars and the rails upon which the cars are run are all instru- 
 mentalities of commerce. The highway upon which the cross- 
 
FEDERAL CONTROL. 191 
 
 ties and the rails rest, when this highway with its crossties and 
 rails run from one State to another, is an instmmentaHty of 
 commerce falling within the purview of the Constitution, which 
 confers upon Congress the right to regulate interstate com- 
 merce. — Hundley, D. J., p. 354. 
 
 U, S, V. Wheeling & L. E. R. Co,, 167 Fed., 198. 
 
 District Court, Northern District of Ohio, June 16, 1908. 
 All of the cars used by a railroad engaged in interstate com- 
 merce, in the natural course of their use, are instrumentalities 
 of interstate commerce; whether they carry interstate traffic 
 themselves or are hauled in a train which contains interstate 
 traffic the effect is the same. — Tayler, D. J., p. 200. 
 
 8. The obstruction of interstate commerce is nnlawfuL 
 U. S. V. Southern Ry. Co., 164 Fed., 347. 
 
 District Court, Northern District of Alabama, Sept. 25, 1908. 
 It was decided in the Dehs Case, 158 U. S., 564, that the 
 obstruction of such [foreign or interstate] commerce was unlaw- 
 ful under the laws of the United States,\£Ould be suppressed by j/ 
 the armies of the United States, and, "at the instance of the 
 United States, could be enjoined in its courts- — Hundley, D. J.^ 
 p. 353. 
 
Part IV. CONSTRUCTION OF STATUTES. 
 
 GENEBAL BITLES OF STATUTORY CONSTRUCTION AS APPLIED 
 
 IN CASES UNDER THE SAFETY APPLIANCE AND 
 
 HOURS OF SERVICE ACTS. 
 
 1. The construction of a statute is controlled by the intention of the legislative 
 body therein expressed or necessarily implied, 192 ; 
 
 (a) And this purpose is exhibited in its title and enacting clause, 193 ; 
 
 (b) But a secret intention of the legislative body should not be construed into 
 a statute, 193. 
 
 3. Judicial interpretation is out of place with respect to statutes which are un- 
 ambiguous, 194. 
 
 8. Uncertainty in the interpretation of statutes may sometimes be removed by 
 appropriate punctuation, 194. 
 
 4. Courts should not concern themselves with the harshness of particular 
 legislation, 195; 
 
 (a) But must enforce the law as they find it, 195; 
 
 (b) And if the burden devolved by a statute upon the individuals subject to 
 its terms is too severe, the remedy lies with the law-making power and not 
 with the courts, 196. 
 
 6. Courts in construing statutes may consult their legislative history, 196. 
 
 6. Statutes modifying the common law should be strictly construed, 197; 
 
 (a) But all statutes are to be sensibly construed, 197; 
 
 (b) And no statute should be frittered away by judicial construction, 197. 
 
 7. The interpretation placed upon a statute by those intrusted with its execution 
 is entitled to the most respectful consideration of the courts, 198. 
 
 1. The construction of a statute is controlled by tlie intention of the 
 legislative body therein expressed or necessarily implied. 
 
 Johnson v. Southern Pacific Co., 196 U. S., 1. 
 Supreme Court, December 19, 1904. 
 
 Moreover, it is settled that "though penal laws are to be 
 construed strictly, yet the intention of the legislature must 
 govern in the construction of penal as well as other statutes; 
 and they are not to be construed so strictly as to defeat the 
 obvious intention of the legislature." [U. S. v. Lacher, 134 
 U. S., 624.]— FuZZer, Chief Justice, pp. 17-18. 
 
 Southern By. Co. v. CrocTcett, 234 U. S., 725; Johnson v. Southern 
 Pacific Co., 117 Fed., 462; V. S. v. Southern By. Co., 135 Fed., 
 122; U. S. V. Chicago, B. cfc Q. By. Co., 156 Fed., 180; TJ. S. 
 V. Central of Georgia By. Co., 157 Fed., 893; TJ. S. v. Southern 
 By. Co., 170 Fed., 1014; V. S. v. Chicago, B. I. & P. By. Co., 
 173 Fed., 684; TJ. S. v. Minois Central B. Co.. 177 Fed., 801; 
 
 192 
 
GENERAL RULES. 193 
 
 TJ. S. V. St. Louis S. W. By. Co. of Texas, 184 Fed., 28; Southern 
 By. Co. V. Snyder, 187 Fed., 492; Gray v. Louisville cfe N, B, 
 Co., 197 Fed., 874; TJ. S. v. Pere Marquette B. Co., 211 Fed., 
 220; Lalce Shore cfc M. S. By. Co. v. Benson, 97 N. E., 417; 
 La Mere v. By. Trans. Co. of Minneapolis, 145 N. W., 1068; 
 Missouri Pacific By. Co. v. Brinkmeier, 93 Pac, 621; LuJcen v. 
 Lalce Shore & M. S. By. Co., 154 111. App., 550; Snyder v. 
 Southern By. Co., C. C.. E. D. Tennessee, Jan. 21, 1910, 
 Sanford, D. J. [unreported]. See also TJ. S. v. St. Louis S. W 
 By. Co. of Texas, 189 Fed., 95 i; TJ. S. v. Chicago, M. cfc P. S, 
 By. Co., 197 Fed., 624; TJ. S. v. Atlantic Coast Line B. Co., 211 
 Fed., 897; U. S. v. Northern Pacific By. Co., 213 Fed., 539; 
 TJ. S. V. Missouri Pacific By. Co., D. C, W. D. Missouri, May 8, 
 1913, Van Valkenburgn, D. J. [unreported]. 
 
 (a). And this purpose is exhibited in its title and enacting clause: 
 
 Southern By. Co. v. CrocJcett, 234 TJ. S., 725. 
 Supreme Court, June 22, 1914. 
 
 In each of these cases [Johnson v. Southern Pacific Co., 
 196 U. S., 1; Schlemmer v. Buffalo, B. cfe P. By. Co., 205 U. S., 
 1 ; Southern By. Co. v. TJ. S., 222 U. S., 20; and Pennell v. Phil- 
 adelphia cfc B. By. Co., 231 U. S., 675] the letter of the Act 
 was construed in the light of its spirit and purpose, as indicated 
 by its title no less than by the enacting clauses. The same 
 guiding principle should be adhered to in considering the ques- 
 tion now presented. — Pitney, Justice, p. 735. 
 
 See also TJ. S. v. Chicago, M. <& P. S. By. Co., 197 Fed., 624; 
 TJ. S. V. Denver db B. G. B, Co., 197 Fed., 629. 
 
 -(b). But a secret intention of the legislative body should not be 
 construed into a statute. 
 
 Johnson V. Southern Pacific Co., 117 Fed., 462. 
 
 Circuit Court of Appeals, 8th Circuit, August 28, 1902. 
 
 But it is the intention expressed in the law or contract, and 
 that only, that the courts may give effect to. They can not 
 lawfully assume or presume secret purposes that are not indi- 
 cated or expressed by the statute itself and then enact provisions 
 to accomplish these supposed intentions. While ambiguous 
 terms and doubtful expressions may be interpreted to carry out 
 the intention of a legislative body which a statute fairly evi- 
 dences, a secret intention can not be interpreted into a statute 
 which is plain and unambiguous, and which does not express it. 
 The legal presumption is that the legislative body expressed 
 its intention, that it intended what it expressed, and that it 
 intended nothing more. [TJ. S. v. Wiltherger, 5 Wheat., 76; Ins. 
 Co. V. Champlin, 116 Fed., 858; Cold Blast Trans. Co. v. Kansas 
 C. B. & N. Co., 114 Fed., 77, 81 ; Bailway Co. v. Bagley, 56 Pac, 
 759; Woolsey v. Byan, 54 Pac, 664; Davie v. Mining Co., 53 
 N. W., 625; Vogel v. Pelcoc, 42 N. E., 386; Campbell v. Lambert, 
 51 Am., 1; TurnpiJce Co. v. Coy, 13 Ohio St., 84; Stensgaard v. 
 Smith, 44 N. W., m^.]— Sanborn, C. J., p. 465. 
 U. S. V. Colorado cfc N. W. B. Co., 157 Fed. 321. 
 50611—15 13 
 
194 CONSTRUCTION OF STATUTES. 
 
 2. Judicial interpretation is out of place with respect to statutes 
 
 which are unambiguous. 
 
 Johnson v. Southern Pacific Co., 117 Fed., 462. 
 
 Circuit Court of Appeals, 8th Circuit, August 28, 1902. 
 
 Construction and interpretation have no place or office 
 where the terms of a statute are clear and certain and its mean- 
 ing is plain. In such a case they serve only to create doubt 
 and to confuse the judgment. When the language of a statute 
 is unambiguous, and its meaning evident, it must be held to 
 mean what it plainly expresses, and no room is left for con- 
 struction. [Swarts V. Siegel, 117 Fed., 13; Knox Co. v. Morton, 
 68 Fed., 787, 789; By. Co. v. Sage, 71 Fed., 40, 47; U. S. v. 
 Fisher, 2 Cr., 358, 399; Ry. Co. v. Phelps, 137 U. S., 528, 536.]— 
 Sanborn, C. J., p. 465. 
 
 V. 8. V. Colorado cfe N. W. R. Co., 157 Fed., 321. 
 
 Circuit Court of Appeals, 8th Circuit, November 25, 1907. 
 But construction and interpretation have no place or func- 
 tion where the terms of the statute are clear and certain, and its 
 meaning is plain. In Lalce County v. Rollins, 130 U. S., 662-670, 
 the Supreme Com-t, after discussing the apphcation of this rule 
 to contracts and constitutions, said: "So also where a law is 
 expressed in plain and imambiguous terms, whether those terms 
 are general or limited, the legislature should be intended to 
 mean what they have plainly expressed, and consequently no 
 room is left for construction.'' [Z7. S. v. Fisher, 2 Cr., 358, 399: 
 Doggett v. R. Co., 99 U. S., 72.]— Sanhorn, C. J., p. 324. 
 
 U. S. V. Baltimore & 0. R. Co., 184 Fed., 94 [citing Hamilton v. 
 RatUone, 175 U. S., 414]; U. S. v. Chicago, M. & P. S. Ry. Co., 
 195 Fed., 783; U. S. v. Yazoo & M. V. R. Co., 203 Fed., 159. 
 See also Northern Padiic Ry. Co. v. TJ. S., 213 Fed., 162. 
 
 3. Uncertainty in the interpretation of statutes may sometimes be 
 
 removed by appropriate punctuation. 
 
 Johnson V. Southern Pacific Co., 196 U. S., 1. 
 Supreme Court, December 19, 1904. 
 
 We dismiss as without merit the suggestion which has been 
 made, that the words "without the necessity of men going 
 between the ends of the cars," wliich are the test of compliance 
 with section 2, apply only to the act of uncoupling. The phrase 
 literally covers both coupling and imcoupling, and if read, as it 
 should be, with the comma after the word "uncoupled," this 
 becomes entii^ely clear. [Chicago, M. & St. P. Ry. Co. v. 
 VoeTker, 129 Fed., b22.]—FuUer, Chief Justice, pp. 18-19. 
 
 Chicago, M. cfc St. P. Ry. Co. v. Voellcer, 129 Fed., 522. 
 Circuit Court of Appeals, 8th Circuit, March 26, 1904. 
 
 If there be uncertainty in the congressional Act, it is obvi- 
 ated by merely inserting a comma after the word " uncoupled '^ 
 in that portion of the Act which calls for "couplers coupling 
 automatically by impact, and which can be uncoupled without 
 the necessity of men going between the ends of the cars." The 
 concluding phrase then hteraUy applies to both the coupling 
 and uncoupling. Punctuation is a minor, and not a controlling, 
 
GENERAL RULES. 195 
 
 element in interpretation, and courts will disregard the punctua- 
 tion of a statute, or repunctuate it, if need be, to give effect to 
 what otherwise appears to be its purpose and true meaning. 
 [Hammock v. Loan c& Trust Oo., 105 U. S., 77, 84; U. S. v. 
 Lacker, 134 U. S., 624, Q2S.]— Van Devanter, 0. J., pp. 526-527. 
 U. S. V. ErieR. Co., 166 Fed., 352. 
 
 District Court, District of New Jersey, January 12, 1909. 
 The word "engaged" does not relate to its immediate sub- 
 stantive "railroad," but to the preceding substantives "trains, 
 locomotives, tenders, cars, and similar vehicles." If a comma 
 be inserted after the word "railroad" (as Chief Justice Fuller 
 inserted one after the word "uncoupled" in the second sectioD 
 of the Act of March 2, 1893—566 196 U. S., 18), the meaning is 
 clear, and the language consistent with the subsequent parts of 
 the section. Such construction was suggested in U. S. v. CTii- 
 cago & N. W. Ry. Go., 157 Fed., QlQ.—lanning, D. J., p. 355. 
 
 4. Courts should not concern themselves with the harshness of par- 
 ticular legislation: 
 St Louis, L M. c& S. Ry. Co. v. Taylor, 210 U. S., 281. 
 Supreme Court, May 18, 1908. 
 
 It is urged that this is a harsh construction. To this we 
 reply that, if it be the true construction, its harshness is no con- 
 cern of the courts. — Moody, Justice, p. 295. 
 U. S. V. Baltimore <& 0. R. Co., 170 Fed., 456. 
 
 District Court, Western District of Pennsylvania, May 17, 1909. 
 And the question of hardship upon the railroad company, I 
 say, is not a matter to be considered in this case at all, because 
 the Act of Congress has specified what the railroad company was 
 to do in order to change the conditions that previously existed, 
 and, whether it is hard upon a railroad company or not, it was 
 within the province of Congress to so enact, and until Congress 
 changes the law we must hold to its meaning. — Orr, D. J., pp. 
 458-459. 
 U. S. V. NortJiern Pacific Ry. Go,, D. C, W. D. Washington, Dec. 
 6, 1913, Cu-hman, D. J. [unreported]. See also U. S. v. Yazoo 
 c& M. V. R. Co., 203 Fed., 159; U. S. v. Missouri Pacific Ry. 
 Co., 206 Fed., 847: State v. Missouri Pacifi^c Ry. Co., Ill S. W., 
 500. 
 
 — (a). But must enforce the law as they find it. 
 
 Atlantic Coast Line R. Co. y.U. S., 168 Fed., 175. 
 
 Circuit Court of Appeals, 4th Circuit, March 1, 1909. 
 
 The courts do not possess the power to read an exception 
 into a statute so as to modify or change the nature of the same 
 and thus defeat the purposes for which the law was intended. — 
 Pritclmrd, C. J., p. 185. 
 V. S. V. Colorado <& N. W. R. Co., 157 Fed., 321. 
 
 Circuit Court of Appeals, 8th Circuit, November 25, 1907. 
 But where the Congress makes no exception from the clear 
 and certain declaration of a statute, there is ordinarily a presump- 
 tion that it intended to make none. [Citing cases]. By so much 
 
196 CONSTETJCTION OF STATUTES. 
 
 the more is it true that where the law-making body has made excep- 
 tions to the 2;eneral terms of an act, as in this instance, the pre- 
 sumption is that it intended to make no more. Again, if Congress 
 intended to make this exception it was a secret intention \vnich 
 the Safety Apphance Acts not only failed to express but which 
 their terms expressly negatived. It is the intention expressed, or 
 necessarily impUed, in the law, and that alone, to which courts 
 may lawfully give effect. — Sanborn, G, J., p. 332. 
 U. S. V. Southern Ry. Co., 135 Fed., 122. 
 
 District Court, Southern District of Illinois, March 2, 1905. 
 The courts can not by judicial legislation read into the Act 
 any language which will excuse offenders any more than they can 
 read into it language which would increase tneir hability. Cfourts 
 must enforce the law as they find it. — Humphrey, D. J., p. 127. 
 U. S. V. Illinois Central R. Co., 156 Fed., 182. 
 
 District Court, Western District of Kentucky, Nov. 1, 1907. 
 We are not, however, permitted to depart from the words of 
 the Act of Congress or to read exceptions into it unless upon 
 estabhshed principles of interpretation which would authorize it. — 
 Evans, D. J., p. 188. 
 
 — (b). And if the burden devolved by a statute upon the individuals 
 subject to its terms is too severe, the remedy lies with the law- 
 making power and not with the courts. 
 U, S. V. Yazoo cfc M. V. R. Co., 203 Fed., 159. 
 
 District Court, Western District of Tennessee, Feb. 22, 1913. 
 It is pressed upon the court that the statute in question and 
 the rule of the Commission thereunder are harsh and bear too 
 heavily upon common carriers. 
 
 When the lan^age of a statute is plain and unambiguous, 
 its harshness should not be ameliorated by construction of the 
 courts. Those interested must apply to the lawmaking body 
 enacting such statutes for rehef, and imtil Confess changes the 
 law now under consideration we must enforce it as it is plainly 
 written.— McCall, D. J., p. 162. 
 U. S. V. Missouri Pacific Ry. Co., 206 Fed., 847. 
 ^. Courts, in construing statutes, may consult their legislative history . 
 Johnson V. Southern Pacific Co., 196 U. S., 1. 
 Supreme Court, December 19, 1904. 
 That this was the scope of the statute is confirmed by the 
 circumstances surrounding its enactment, as exhibited in pubUc 
 documents to which we are at liberty to refer [Binns v. U. o., 194 
 U. S., 486, 495; Holy Trinity Church v. U. S., 143 U. S., 457, 
 iQS].— Fuller, Chief Justice, p. 19. 
 U. S. V. Chicago, M. <& St. P. Ry. Co., 149 Fed., 486. 
 
 District Court, Southern District of Iowa, November 27, 1906. 
 A statute, Uke a contract, must be held up by the four cor- 
 ners and examined, and when remedial in its nature it must be 
 examined in the light of its history and its purposes and the then 
 existing evils which were to be corrected, remedied and pre- 
 vented. — McPherson, D. J., p. 487. 
 
GENERAL EULES. 197 
 
 V. S. V. Chicago & N, W. By. Co., 157 Fed., 616. 
 
 District Court, District of Nebraska, December 30, 1907. 
 While the court in construing the law may not inquire what 
 individual Members of Congress supposed the bill to mean, it may 
 consult the history of the Act and the reports of the committees 
 having it in charge [Mosle v. Bidwell, 130 Fed,, 334.] — Munger^ 
 D. J., p. 618. 
 State V. Chicago, M. cfc St. P. Ry. Co., 117 N. W., 686. 
 6. Statutes modifying the common law should be strictly construed: 
 Johnson v. Southern Pacific Co., 117 Fed., 462. 
 
 Circuit Court of Appeals, 8th Circuit, August 28, 1902. 
 A statute which thus changes the common law must be 
 strictly construed. The common or the general law is not further 
 abrogated by such a statute than the clear import of its language 
 necessarily requires. [Shaw v. R. Co., 101 U. S., 557; Fitzgerald v. 
 Quann, 17 N. E. 354; Brown v. Barry, 3 Dall., 365].— ^anftom, 
 C. J., p. 466. 
 
 — (a). But all statutes are to be sensibly construed: 
 Johnson v. Southern Padjic Co., 196 U. S., 1. 
 Supreme Court, December 19, 1904. 
 
 And, as Chief Justice Parker remarked, conceding that 
 statutes in derogation of the common law are to be construed 
 strictly, ''they are also to be construed sensibly, and with a view 
 to the object aimed at by the legislature.'' [Gibson v. Jinney, 
 15 Mass., 205]. — Fuller, Chief Justice, p. 17. 
 U. S. V. Illinois Central R. Co., 156 Fed., 182 [citing U. S. v. Kirhyy 
 7 WaU., 486]; U. S. v. Chicago, R. I. cfc P. Ry. Co., 173 Fed., 684; 
 Siegel v. New York Central dc H. R. R. Co., 178 Fed., 873; North- 
 ern Pacific Ry. Co. v. U. S., 213 Fed., 162; U. S. v. Missouri 
 Pacific Ry. Co., 213 Fed., 169. 
 
 — (b). And no statute should be frittered away by judicial construe* 
 tion. 
 
 R S. V. CJiicago, M. <& St P. Ry. Co., 149 Fed., 486. 
 
 District Court, Southern District of Iowa, November 27, 1906. 
 It is an elementary rule of construction that the statute 
 can not be broadened by construction so as to cover acts or 
 omissions not clearly within the spirit and language of the statute. 
 But while this is conceded, another rule equally important and 
 as clearly established is that statutes are not to be frittered away 
 by courts by construction. — McPherson, D. J., p. 487. 
 TJ, S. V. Atlantic Coast Line R. Co., 153 Fed., 918. 
 
 District Court, Eastern District of North Carolina, May 21, 1907. 
 
 Such a construction must be given the statute as will 
 
 accomplish the evident intent of Congress. The statute must 
 
 not be frittered away by judicial construction. — PumeU, D. J., 
 
 p. 924. 
 
 Cray v. Louisville <k N, R. Co., 197 Fed., 874. 
 
198 CONSTRUCTION OF STATUTES. 
 
 7. Tlie interpretation placed upon a statute by those entrusted with 
 its execution is entitled to the most respectful consideration of 
 the courts. 
 U. S. V. Atchison, T. & S. F. Ry. Co., 212 Fed., 1000. 
 District Court, District of Arizona, April 10, 1914. 
 
 That the ''construction of a statute by those charged with 
 the execution of it is always entitled to the most respectful con- 
 sideration, and ought not to be overruled without potent rea 
 sons,'' was the rule announced at a very early day oy the Su- 
 preme Court of the United States and reiterated in a very large 
 number of cases. [Heath v. Wallace, 138 U S , 573.] — Saw- 
 telle, Z>. J., p. 1005. 
 Oshome's AdmW, v. Cincinnati, N. 0. d; T. P. Ry. Co., 164 S. W., 
 818. See also TJ. S. v. Trans- Missouri Freight Ass'n.y 166 U. S., 
 290; PenneU v. Philadelphia & R. Ry. Co., 231 U. S., 675. 
 
Part V. General Rules of EVIDENCE, PLEADING, PRACTICE 
 
 and PROCEDURE applied in cases under the Safety 
 
 Appliance and Hours of Service Acts. 
 
 A. EVIDENCE. 
 
 1. The burden of proof is on the Government in actions for the penalties pro- 
 vided by the federal Safety Appliance and Hours of Service Acts, 201 ; 
 
 (a) But such proceedings being civil actions, the preponderance of evidence 
 is sufficient to establish the allegations of the plaintiff's declaration, 201; 
 
 (b) "Preponderance of evidence" defined, 202. 
 
 2. Government inspectors of safety appliances are not required to advise the 
 carriers on whose lines inspections are made with respect to their discovery ol 
 particular defects, and their failure so to do is not to be considered by the Jury 
 as discrediting their testimony in an action for the recovery of the penalties 
 provided by the Acts, 203. 
 
 3. In an action for the recovery of the penalties provided by the federal Safety 
 Appliance Acts, no witness is to be discredited by the jury merely by reason of 
 his personal interest as an inspector of the Government or as an employee of a 
 defendant carrier, 206. 
 
 4. Other things being equal, positive testimony is to be accorded greater weight 
 than negative testimony, 206; 
 
 (a) But the testimony of a company inspector that he inspected particular cars 
 in the furtherance of his duty, and that he failed to find particular defects, is 
 positive testimony of a negative fact, 207. 
 6. A memorandum made by a government inspector from original waybills, show- 
 ing the origins, destinations, consignors, and consignees of particular ship- 
 ments, may be read to the jury as an original memorandum made at the time 
 of his inspection, and, in the absence of evidence to the contrary, may be 
 inferred to have been correctly made, 207. 
 
 6. Becords kept by the defendant for the purpose of giving necessary information 
 on which the carrier itself would rely, although not proved, as would be neces- 
 sary if offered by the defendant for self-serving purposes, are admissible when 
 offered by the plaintiff as in the nature of admissions, 208. 
 
 7. The determination of what is and what is not a handhold within the purview 
 of the federal Safety Appliance Acts is within the province of the jury, 208; 
 (a) The competency of openings in the buffers on the ends of cars as substi- 
 tutes for handholds is not a proper subject for expert testimony, where such 
 openings are subject to the personal inspection of the jury, 209. 
 
 8. The operation of automatic couplers is a proper subject for expert testimony, 209 ; 
 (a) The exhibition of model couplers to the jury, merely for the purpose of 
 
 illustrating particular defects, is permissible, 210 ; 
 
 B. PLEADING, PRACTICE, AND PROCEDURE. 
 
 1. The purpose of a proviso ordinarily is to restrain or modify the enacting clause 
 of a statute, 211. 
 
 2. In actions under the federal Safety Appliance and Hours of Service Acts, 
 the Government is not required in its declarations to negative the provisos in 
 those statutes, 211 ; 
 
 (a) But the defendant carriers in such actions must bring themselves strictly 
 within the terms of such provisos in order to avail themselves of the immuni- 
 ties thereby afforded, 212. 
 
 199 
 
200 PLEADING, PRACTICE, AND PROCEDURE. 
 
 3. If an action under the federal Hours of Service Act is so tried by court and 
 counsel as tacitly to imply that circumstances not specifically set out in the 
 answer are embraced within the issues, they will be treated by an appellate 
 court as though they had been set out in the answer, 213. 
 
 4. The allegation in the plaintiff's declaration that a violation of the federal 
 Safety Appliance Acts occurred "on or about " a certain date is not fatally defec- 
 tive for want of deflniteness, 213. 
 
 6. In a penal action based upon the defective condition of a coupler the allegation 
 in the plaintiff's declaration that the car in question was "not equipped with 
 couplers coupling automatically by impact, etc.," is a conclusion or statement 
 of result, and not a substantive charge, 214. 
 
 6. Actions under the federal Safety Appliance and Hours of Service Acts being 
 civil, if the Government in any case establishes by uncontradicted evidence 
 the facts recited in the declaration, it is entitled to a directed verdict, 214; 
 
 (a) And the refusal of the trial judge, in a proper case, to direct a verdict for 
 the Government is a reversible error, 216; 
 
 (b) But a directed verdict is permissible only when all reasonable men would 
 deduce the same conclusions from the facts which condition the issue, 216; 
 
 (c) Where the judgment of a trial court is reversed, on appeal, for error in denying 
 a motion for a directed verdict at the close of the evidence, such decision, 
 even though not unanimous, is the law of the case on retrial, and requires 
 the granting of a similar motion, unless the evidence is such as to change 
 the state of facts to which the law in the previous case applied, or until 
 the decision of the Circuit Court of Appeals is reversed by the Supreme 
 Court, 216. 
 
 7. Where a party submits to the court for instruction a charge defectively prepared, 
 it is the duty of the court to correct the defect and submit the issue, and failure 
 so to do may be assigned as error, 216; 
 
 (a) But where the court refuses a specific prayer, and then in its general charge 
 or in another prayer covers the point in question, even though the court may 
 have erred in refusing the prayer, such error is not prejudicial and is there- 
 fore harmless, 216. 
 
 8. A petition for removal will be sustained if the pleadings are amended so as 
 to transform a nonremovable cause into a removable one, 216. 
 
 9. The amendment of a petition in such a manner as to bring within the federal 
 Safety Appliance Acts a case not otherwise within their purview is not merely 
 a restatement or a statement in a different form of the same cause of action, 
 but is the averment of a statutory cause of action in which the liability is greater 
 than in an action at the common law, 217. 
 
 10. Where the trial court grants a compulsory nonsuit on the ground of insufficient 
 evidence to sustain a verdict on any count, its action will not be reversed by 
 an appellate court if the record is in such condition as to render it impossible 
 to determine what evidence applies to each specific count, 217. 
 
 11. Court of Appeals decisions on a given question are entitled to greater weight 
 than decisions of a District Court, 217. 
 
 12. A suit for specific performance of a contract to locate and maintain a railroad 
 division terminal at a point where its continuance would impose a burden 
 upon interstate commerce or preclude the carrier's observance of the federal 
 Hours of Service Act is unsustainable 217. 
 
 13. In a joint action under the federal Safety Appliance Acts, judgment may be 
 rendered against either or both of the defendants involved, 217. 
 
PLEADING, PRACTICE, AND PROCEDURE— EVIDENCE. 201 
 
 14. Courts will take cognizance of the facts and law of any instant case alone, and 
 
 expressions of opinion as to the application of the law to facts essentially different 
 
 are not controlling in another case, 217. 
 16. The Supreme Court may consider questions not specifically mentioned in the 
 
 court below if such consideration is necessary to the determination of the 
 
 questions actually presented, 218. 
 
 16. The Supreme Court of the District of Columbia has jurisdiction of cases under 
 the federal Safety Appliance and Hours of Service Acts, 218. 
 
 17. Courts will take judicial notice of the federal Safety Appliance and Hours of 
 Service Acts, 219; 
 
 (a) And of the Orders of the Interstate Commerce Commission made in the 
 furtherance thereof, 219. 
 
 A. EVIDENCE. 
 
 1. The burden of proof is on the Government in actions for the penalties 
 provided by the federal Safety Appliance and Hours of Service 
 Acts: 
 
 V. S. V. Philadelphia & R. Ry. Co., 160 Fed., 696. 
 
 District Court, Eastern District of Pa., March 17, 1908. 
 
 The United States has the burden of proof upon it in order 
 to make out its case. It has the burden of proof from the begin- 
 ning to the end of it. It never shifts. It is bound to make out 
 its case, and it is bound to make it out by evidence that is clear 
 and satisfactory to the jury. That is the obligation that is laid 
 upon it. — McPherson, D. J., p. 699. 
 
 Z7. S. V. Central of Georgia Ry. Co., 157 Fed., 893; U. S. v. 
 Louisville c& N. R. Co., 162 Fed., 185; U. 8. v. Chicago Great 
 Western Ry. Co., 162 Fed., 775; IJ. S. v. Illinois Central R. Co., 
 166 Fed., 997; U. S. v. Southern Pacific Co., 167 Fed., 699; 
 U. S. v. Southern Ry. Co., 170 Fed., 1014; U. S. v. Montpelier cfe 
 W. R. R. Co., 175 Fed., 874; U. S. v. Philadelphia & R. Ry. Co., 
 and v. S. v. Lehigh VaUey R. Co., D. C, E. D. Pennsylvania, 
 Mar. 17, 1908, McPherson, D. J. [unreported]; TJ. S. v. Penn- 
 sylvania R. Co., D. C, E. D., Pennsylvania, Mar. 18, 1908, 
 McPherson, D. J. [unreported] ; TJ. S. v. Atchison, T. dc S. F. 
 Ry. Co., D. C, D. Arizona, July 17, 1908, Sloan, D. J. [unre- 
 ported]; U. S. V. Baltimore &'^0. R. Co., D. C, N. D. West 
 Virginia, Jan. 18, 1909, Dayton, D. J. [unreported]; U. S. v. 
 Toledo Terminal R. Co., and U. S. v. Baltimore cfe 0. R. Co., D. C, 
 N. D. Ohio, June 15, 1909, Cochran, D. J. [unreported]; U. S. v. 
 Southern Pacific Co., D. C, D. Nevada, Nov. 24, 1909, Far- 
 rington, D. J. [unreported]. See also Z7. S. v. Kansas City 
 Southern Ry. Co., 202 Fed., 828. 
 
 — (a). But such proceedings being civil actions, the preponderance of 
 evidence is sufficient to establish the allegations of the plaintiff's 
 declaration : 
 
 U. S. V. Nevada County N. G. R. Co., 167 Fed., 695. 
 
 District Court, Northern District of CaHfornia, Nov. 28, 1908. 
 The jury is instructed that if it believes from a preponder- 
 ance of the evidence that the defendant hauled the car, as alleged 
 in the first count of plaintiff's petition, when the coupling and 
 
202 EVIDENCE. 
 
 uncoupling apparatus on either end of said car was so constructed 
 that in order to open the knuckle when preparing the coupler 
 for use it was reasonably necessary for a man to place part of 
 his body, his arm, or his leg in a hazardous or dangerous position, 
 then its verdict should be for the Government. You are in- 
 structed that if you beheve from a preponderance of the evidence 
 that the defendant hauled the car as alleged in the first count 
 of plaintiff's petition, when said car was not equipped with 
 couplers coupling automatically by impact, and which could 
 be both coupled and uncoupled without the reasonable necessity 
 of a man gomg between the end sills of said cars, then your ver- 
 dict should be for the Government. — Be Haven, D. J., p. 696. 
 
 V. S. V. Southern Ry. Co., 170 Fed., 1014. 
 
 District Court, Western District of North Carolina, May 7, 1909. 
 In this case it being, as stated, a civil action, the law saj^s 
 that the plaintiff, to estabhsh the allegations of the complaint, is 
 required to produce a preponderance of evidence ; in other words, 
 the burden is on the plaintiff to present to the jury facts and cir- 
 stances tending to sustain the contentions which outweigh, 
 when put together, the testimony to the contrary. — Boyd, D. J., 
 p. 1017. 
 
 V, S. V. Northern Pacific Ry. Co. [unreported]. 
 
 District Court, Western District of Washington, Feb. 13, 1914. 
 This is not a criminal action and the Government is not 
 required to prove to you beyond a reasonable doubt that the 
 law was violated. It is only required to prove to you by a fair 
 preponderance of the evidence that the employees in question 
 were required and permitted to be and remain on duty for a 
 longer period than 16 consecutive hours. — Cushman, D. J. 
 
 U. S. V. Atchison, T. & S. F. Ry. Co., 167 Fed., 696; U. S. v. 
 Boston (& M. R. Co., 168 Fed., 148; Z7. S. v. Baltimore & 0. R. 
 Co., 176 Fed., 114; Wheeling Terminal Ry. Co. v. Russell, 209 
 Fed., 795; U. S. v. Wahash R. Co., D. C, S. D. Illinois, June 6, 
 1907, Humphrey, D. J. [unreported]; U. S. v. Chesapealce & 0. 
 Ry. Co., D. C, S. D. West Virginia, Dec. 2, 1908, Keller, D. J. 
 [unreported]; V. S. v. Baltimore & 0. R. Co., D. C, N. D. 
 West Virginia, Jan. 18, 1909, Dayton, D. J. [mu-eported] ; V. S. 
 V. Baltimore cfc 0. R. Co., D. C, S. D. Ohio, June 10, 1909, 
 Sater, D. J. [unreported]; U. S. v. Toledo Terminxil R. Co., D. C, 
 N. D. Ohio, June 15, 1909, Cochran, D. J. [unreported]; TJ. S. v. 
 Southern Pacific Co., D. C, D. Nevada, Nov. 24, 1909, Farring- 
 ton, D. J. [unreported]; TJ. S. v. Northern Pacific Ry. Co., D. C., 
 W. D. Washington, Dec. 5, 1913, Cushman, D. J. [unreported]. 
 — (b). "Preponderance of evidence" defined. 
 
 U. 8. V. Central of Georgia Ry. Co., 157 Fed., 893. 
 
 District Court, Northern District of Alabama, Sept. 27, 1907. 
 By the preponderance of the evidence, you are not to under- 
 stand that the Government must make out its case beyond a 
 reasonable doubt. It is sufficient if you are satisfied in your own 
 mind from all the evidence that the defendant did the act com- 
 plained of. — Hundley, D. J., p. 895. 
 
GENEEAL RULES. 203 
 
 V. 8. V. Southern Pacific Co.^ 167 Fed.^ 
 
 District Court, Northern District of California, December 4, 1908. 
 
 And by a preponderance of evidence is not meant the greater 
 
 number of witnesses, but it means that evidence which to your 
 
 mind is the most satisfactory and is entitled to the greatest 
 
 weight. — De Haven, D. J., p. 703. 
 
 Z7. 8. y. Boston cfc M.R. Co., 168 Fed., 148. 
 
 District Court, District of Massachusetts, January 5, 1909. 
 A preponderance of the evidence in this case is sufficient; 
 and what does that mean ? It means that after balancing and 
 considering the evidence on the one side and on the other you are 
 not left in doubt, but that you find that the evidence for the 
 Government outweighs the evidence brought here to meet it. — 
 Dodge, D. J., p. 151. 
 
 2. Government inspectors of safety appliances are not required to ad- 
 vise the carriers on whose lines inspections are made with respect 
 to their discovery of particular defects, and iheir failure so to do 
 is not to be considered by the jury as discrediting their testi- 
 mony in an action for the recovery of the penalties provided by 
 the Acts. 
 
 Norfolk cfc F. By, Co. v. U, 8., 191 Fed., 302. 
 
 Circuit Court o^^ Appeals, 4th Circuit, October 14, 1911. 
 It is also insisted that the court below erred in granting an 
 instruction, at the request of counsel for the Government, to the 
 effect that the government inspector was under no legal obliga- 
 tion to inform the railroad company of defective cars. Congress 
 by the enactment of the statute by virtue of which this suit was 
 instituted evidently intended to hold the railroad companies to 
 a high degree of dihgence in equipping and maintaining their 
 cars with the proper safety appliances. If it is the intention of 
 the law that when an inspector goes from place to place and 
 when he finds a car in a defective condition that it is his duty to 
 notify the company of the same before the car is transported, 
 then it would be impossible to secure anything like a fair enforce- 
 ment of the law which penalizes the railroads for not properly 
 equipping and maintaining their cars with safety appliances. 
 * * * Under the circumstances of this case, and in view of 
 the requirements of the statute, we think the court did not err in 
 granting this instruction. — PritcJiard, C. J., pp. 307, 308. 
 
 Chicago, B. & Q. R. Co. v. U. 8., 211 Fed., 12. 
 
 Circuit Court of Appeals, 8th Circuit, November 28, 1913. 
 The company also urges that it was the duty of the govern- 
 ment inspectors when they discovered the defective condition of 
 the car in the Twelfth Street yard to inform the company's em- 
 ployees, so that the defect could be supplied before the car was 
 moved. Such a ruhng would make it almost impossible for the 
 Government to enforce the statute. It would be difficult, indeed, 
 to show at the conclusion of a trip that the car was defective when 
 the movement started. Such evidence could only be obtained 
 from railway employees, and, as a rule, would show that the wit- 
 nesses themselves were guilty of negligence in not remedying a 
 known defect. Government inspectors are no part of the com- 
 
204 EVIDENCE. 
 
 pany's repair force. It is their duty to ascertain whether or not 
 the company is violating the statute. They can do that effec- 
 tively in no other way than that adopted by the inspectors in the 
 present case. — Amidon, D. J., pp. 15-16. 
 
 JJ, 8, y. Chicago Great Western Ry. Co., 162 Fed., 775. 
 
 District Court, Northern District of Iowa, May 6, 1908. 
 
 The inspectors of the Government were not required to 
 inform the employees of the railroad company, when they made 
 the inspection of these cars, of the defects in the appliances, if 
 any they discovered, and you should not discredit their testi- 
 mony solely because thev did not so inform them. — Reed, D. J., 
 p. 779. 
 
 U. S. y. Baltimore cfc 0. R. Co., 170 Fed., 456. 
 
 District Court, Western District of Pennsylvania, May 17, 1909. 
 I have been asked to charge you that it was not necessary for 
 the agents or officers of the Intei'state Commerce Commission 
 to notify the railroad company of these defects, and I will so 
 charge you that there was no legal liability upon them to do so. 
 But 1 can not help but feel that, in view of the purpose for which 
 this Act was passed, and in view of the fact that those points 
 were repair pomts, it was a matter of common ordinary honesty, 
 for the purpose, a matter of common ordinarv human obligation, 
 to have informed the railroad company, it they had time to 
 inform them, or to inform the officers in charge of the repairing 
 and inspecting of the cai*s there, before permitting those cars 
 to go out upon the road as a menace to people who might have 
 to use them, of defects found. I will charge you that there was 
 no legal liability upon them to do so, but I have expressed myself 
 as I have done because I think that is right. — Orr, t). J., p. 461. 
 
 TJ. 8. V. Atchison, T. di 8. F. Ry. Co. [unreported]. 
 
 District Court, Fourth District of Arizona, July 17, 1908. 
 
 The inspectors for the Government are not required to 
 
 notifj the employees of the railroad company of existing defects 
 
 previous to or at the time of movement of defective cars, though 
 
 such inspectors previously discovered such defects. — Sloan, D. J. 
 
 U. 8. V. Atlantic Coast Line R. Co. [unreported]. 
 
 District Court, District of South Carolina, February 24, 1909. 
 Inspectors in the employ of the Interstate Commerce Com- 
 mission are not required to mform the employees of the defend- 
 ant, when they make the inspection of the cars sued upon, of the 
 defects found in the appliances; the jury should not discredit 
 their testimony because the inspectors did not so inform the 
 employees of the defendant. — Brawley, D. J. 
 
 TJ. 8. V. Baltimore & 0. R. Co. [unreported]. 
 
 District Court, Northern District of Ohio, June 15, 1909. 
 It is also argued and claimed that tliese government in- 
 spectors did not report to the railroad company or the railroad 
 employees the defects which they found. It is testified to, how- 
 ever, by the government inspectors that their instructions were 
 not to report them to the railroad company. Now, the rules 
 under which they were acting did not permit their doing so. 
 
GENERAL RULES. 205 
 
 That rule may be a wise or an unwise rule; but, if that is so, I 
 don't see how that circumstance affects the weight of the testi- 
 mony of these men. Possibly if they had no such rule, no such 
 instruction for their guidance, and they did not report the 
 defects to the railroad company so that they might be remedied, 
 that might to a certain extent affect the weight of their testi- 
 mony. — Cochran, D. J. 
 
 U. S. V. Southern Pacific Co. [unreported]. 
 
 District Court, District of Nevada, November 24, 1909. 
 There is no legal obligation on the part of the government 
 inspectors to notify a railway company of defects found in its 
 equipment. — Farrington, D. J. 
 
 See also NashviUe, C, cfe St L. By. Co. v. Henry, 164 S.W., 310. 
 
 In an action for the recovery of the penalties provided by the 
 federal Safety Appliance Acts, no witness is to be discredited by 
 the jury merely by reason of his personal interest as an inspector 
 of the Government or as an employee of a defendant carrier. 
 Norfolk & W. By. Co. v. U. S., 177 Fed., 623. 
 
 Circuit Court of Appeals, 4th Circuit, March 4, 1910. 
 
 We think the District Court for the Northern District of Ohio, 
 in U. S. y. Baltimore dbO. B. Co. (not reported) [but cited post] 
 Judge Cochran, charging the jury in a similar case, has rightly 
 held: '^In considering the testimony of witnesses, the jury should 
 not give either more or less weight to the testimony of any witness 
 because of the fact that such witness testifies on behalf of the 
 Government, or on behalf of the railroad company, but the jury 
 should give to the testimony of each witness that weight which 
 in its judgment it is entitled to from all the facts and circum- 
 stances in the case." — Dayton, D. J., pp. 629-630. 
 U. S. V. Chicago Great Western By. Co., 162 Fed., 775. 
 
 District Court, Northern District of Iowa, May 6, 1908. 
 
 You should not discredit the testimony of any witness solely 
 because he is in the employ of either the Government as an inspec- 
 tor of railroad trains or cars, or in the employ of the defendant 
 railroad company, but you will determine the credibihty of such 
 witness and the weight to be given to the testimony of each as I 
 have already said to you; and when you have determined that, 
 then you mil determine where the greater weight of the testi- 
 mony is upon these different questions of fact about which they 
 have testified before you. — Bern, D. J.,p. 779. 
 U. S. V. Wahash B. Co. [unreported]. 
 
 District Court, Southern District of Illinois, June 6, 1907. 
 All these considerations you have a right to weigh in making 
 up your judgment as to the weight to be given to the testimony 
 of any witness, but in doing this you will not give either more or 
 less weight to the testimony of any witness because of the fact that 
 such witness testifies on behalf of the Government, or because of 
 the fact that such witness is an employee of the railroad company, 
 but you will give to the testimony of each witness that degree of 
 weignt which, in your judgment, it is entitled to, from all facts 
 and circumstances in the case. — Humphrey, D. J. 
 
206 EVIDENCE. 
 
 TJ. S, V. Atchison, T. dc S. F. Ry. Co. [unreported]. 
 
 District Court, Fourth District of Aiizona, July 17, 1908. 
 In considering the testimony of the witnesses who have testi- 
 fied before you, you have a right to weigh, in making up your 
 judgment, the testimony of any witness, but in doing this you 
 will not give either more or less weight to the testimony of any 
 witness because of the fact that such witness testifies on behalf 
 of the Government or because of the fact that such witness testifies 
 on behalf of the railroad company. But you will give to the 
 testimony of each witness that weight which, in your judgment, 
 it is entitled to from all the facts and circumstances in the case. — 
 Sloan, D.J. 
 
 U. 8. V. Baltimore S 0. R. Co. [unreported]. 
 
 District Court, Southern Distiict of Ohio, June 10, 1909. 
 These men who testified before you, whether they are rail- 
 road employees or inspectors, are not to be disbelieved simply 
 because they work for the defendant or are in the Government's 
 8er^dce, as the case may be. — Sater, D. J. 
 
 TJ. 8. V. Atchison, T. <h 8. F. Ry. Co. [unreported]. 
 
 District Court, Northern District of Illinois, December 27, 1909. 
 You have no right to disregard the testimony of any witness 
 merely because he is employed by somebody. You can not cast 
 out the testimony of these two witnesses for the United States 
 because they are inspectors in the employ of the Interstate Com- 
 merce Commission; you can not cast out the testimony of the 
 defendant's witnesses because they are in the employ of the 
 defendant or in the employ of other railway companies, though all 
 of those things are to be taken into consideration by the jury in 
 determining the probable weight which you will give to their testi- 
 mony. — Landis, D. J. 
 
 U, 8. V. Baltimore^dc 0. R. Co., D. C, N. D. Ohio, June 15, 1909, 
 Cochran, D. J. [unreported but cited with approval by District 
 Judge Dayton, in Norfolk <& W. Ry. Co. v. TJ. 8., 177 Fed., 623, 
 ante.] 
 
 Other things being equal, positive testimony is to be accorded 
 
 greater weight than negative testimony: 
 TJ. 8. V. Southern Pacific Co., 167 Fed., 699. 
 
 District Court, Northern District of California, Dec. 4, 1908. 
 In considering this testimony, positive testim.ony is to be 
 preferred to negative testimony, other things being equal; that 
 IS to say, when a credible witness testifies as to the existence of a 
 fact at a particular time and place, and another equally credible 
 witness testifies to having failed to observe such fact, the positive 
 declaration is ordinarily to be preferred to the negative in the 
 absence of other testimony or evidence corroborating the one or 
 the other. — De Haven, D.J.,ip. 703. 
 TJ. 8. V. Atchison, T. cfe 8. F. Ry. Co., [unreported]. 
 
 District Court, Fourth District of Arizona, July 17, 1908. 
 In this connection it is proper to state that positive testi- 
 mony is to be preferred to negative testimony, other things being 
 equal; that is to say, when a credible witness testifies to having 
 
GENERAL RULES. 207 
 
 observed a fact at a particular time and f)lace, and another 
 equally credible witness testifies to having failed to observe the 
 same fact, with the same or equal opportunity to observe such 
 fact, the positive declaration is to be preferred to the negative, 
 in the absence of other testimony or evidence corroborating the 
 one or the other. — Sloan, D.J. 
 
 V. 8. V. Baltimore <& 0. R. Co., [unreported]. 
 District Court, Northern District of West Virginia, Jan. 18, 1909. 
 Under the ordinary rules of evidence, positive testimony is 
 stronger than negative testimony where that negative testimony 
 is not so strong as to make it apparent that the witnesses stating 
 the positive fact are mistaken or untruthful. — Dayton, D. J. 
 
 TJ. S, V. Baltimore cfc 0. R. Co. [unreported]. 
 
 District Court, Southern District of Ohio, June 10, 1909. 
 Positive testimony is to be preferred to negative testimony, 
 other things being equal. That is to say, when a credible wit- 
 ness testifies to having observed a fact at a particular time and 
 place, and another equally credible witness testifies to having 
 failed to observe the same fact, having the same or equal oppor- 
 tunity so to observe such fact, the positive declaration is to be 
 preferred to the negative in the absence of other testimony 
 corroborating the one or the other. — Sater, D. J. 
 
 V. S. V. Baltimore & 0. R. Co.. 170 Fed., 456. 
 
 — (a.) Bnt the testimony of a company inspector that lie inspected par- 
 ticular cars in the furtherance of his duty, and that he failed to find 
 particular defects, is positive testimony of a negative fact. 
 Norfolk cfc Western Ry Co. v. U. S., 177 Fed., 623 [and cases cited]. 
 
 5. A memorandum made by a government inspector from original 
 waybills, showing the origins, destinations, consignors and 
 consignees of particular shipments, may be read to the jury as an 
 original memorandum made at the time of his inspection, and, 
 in the absence of evidence to the contrary, may be inferred to have 
 been correctly made. 
 Louisville & N. R. Co. v. U. S., 186 Fed., 280. 
 
 Circuit Court of Appeals, 6th Circuit, March 3, 1911. 
 
 Another witness named Cash, who was a car inspector 
 employed by the Interstate Commerce Commission for the pur- 
 pose of detecting violations by railroads of the Safety Appliance 
 Acts, testified that he saw the original waybills in the caboose 
 of the train containing the cars in question, and that he made a 
 meniorandum of them showing the origin of the shipments, 
 destinations, and the names of the consignors and of the con- 
 signees. This was offered in evidence. The record shows that 
 this memorandum was read to the court and jury without objec- 
 tion. Subsequently, and at the close of his evidence, counsel 
 for the railway company moved to exclude the testimony of the 
 witness, ^'because," as they said, "it is not shown as a matter 
 of fact whether this was properly done or whether it is the 
 original.'' Assumiug, without deciding, that the objection was 
 seasonably made, we understand that the last objection must 
 
208 EVIDENCE. 
 
 refer to the question whether the memorandum produced was 
 his original memorandum. But the evidence was such as might 
 satisfy the court and jury that it was the original memorandum 
 which he made at the time. 
 
 And as to the question whether ''it was properly done" it 
 might fairly be inferred that when he said he made a memoran- 
 dum of the bills he meant that he made it correctly. — Severens, 
 C. J., p. 285. 
 
 Records kept by the defendant for the purpose of giving necessary 
 information on which the carrier itself would rely, although not 
 proved as would be necessary if offered by the defendant for self- 
 serving purposes, are admissible when offered by the plaintiff as 
 in the nature of admissions. 
 
 Louisville d: K R. Co. v. U, S., 186 Fed., 280. 
 
 Circuit Court of Appeals, 6th Circuit, March 3, 1911. 
 
 Proof of what the car contained might have been made by 
 the original waybills, but they were not the only competent 
 evidence of the facts. They were not contractual instruments 
 
 . between these parties and were not the necessary proof of the facts 
 which they might have a tendency to prove. An admission of 
 the facts made by the defendant would be competent evidence to 
 prove them, independently of the waybills. The records kept 
 and preserved by the agent at Paris, employed for the purpose 
 by his company, were competent, thougn doubtless not incon- 
 testible, evidence to prove an admission of the fact by the rail- 
 road company. For this purpose it would not be necessary to 
 establish all the necessary conditions of proof which would be 
 required if the railroad company were offering these records for 
 some self-serving purpose oi its own. These records were kept 
 for the very purpose of giving necessary information on which 
 the company itself would rely. — Severens, C. J., pp. 284-285. 
 
 The determination of what is, and what is not, a handhold within 
 the purview of the federal Safety Appliance Acts is within the 
 province of the jury : 
 
 U. S. V. Baltimore & 0. R. Co. [unreported]. 
 
 District Court, Northern District of West Virginia, Jan 18, 1909. 
 Gentlemen, it is for you to determine, touching the hand- 
 hold on the engine in this case, whether or not the appliance that 
 was testified to by the witness Johnson, at the end or corner of 
 the tender and the release bar, was a fair and proper substitute 
 for the ordinary grab irons referred to in this statute. — Dayton, 
 B,J. 
 v. S. V. Atchison, T. cfc S. F. Ry. Co. [unreported]. 
 
 District Court, Northern District of Illinois, December 27, 1909. 
 What is a secure grab iron or handhold the statute has not 
 definitely and distinctly defined. It is for you to answer that 
 question and determine whether or not this coupling lever that 
 was provided was a secure grab iron or secure handhold within 
 the meaning of this statute. — Landis, D. J. 
 
GENERAL RULES. 209 
 
 U. S. V. Spolcane <& I. E. R. Co. [unreported]. 
 
 District Court, Eastern District or Washington, Oct. 31, 1912. 
 The purpose of the handhold is obvious. As declared by 
 the statute, it is for the greater security of men in coupling ana 
 imcoupling cars. In order to subserve that purpose it must be 
 located at the proper place ; it must be located so that it can be 
 seen, and it must be of such form and size that it can be readily 
 seized in an emergency. Whether it satisfies these requirements 
 is not, in my opinion, a matter for experts to determine, but is 
 within the common knowledge of all men of ordinary intelli- 
 gence. * * * The jury in this case heard the testimony and by 
 consent of parties viewed and inspected the so-called handholds 
 in question as well as the handholds in use on one of the steam 
 railways passing through the city; and from such view in the 
 light of the testimony they were better able to determine the 
 issue correctly than if it had been clouded and obscured by the 
 biased opinions of partisan experts. — RudMn, D. J. 
 
 (a). The competency of openings in the buffers on the ends of cars, 
 as substitutes for handholds, is not a proper subject for expert 
 testimony, where such openings are subject to the personal 
 inspection of the jury. 
 Spolcane c& I. E, R. Co. v. U. S., 210 Fed., 243. 
 
 Circuit Court of Appeals, 9th Circuit, January 5, 1914. 
 
 In its instructions to the jury regarding this matter the court 
 told them that the Act of Congress relative to safety appliances 
 provided that raihoad cars ^^used in. interstate commerce shall 
 be provided with secure grab irons or handholds on the ends and 
 sides of each car for greater safety to men in coupling and uncoup- 
 ling cars, ' ' and insti:ucted them as follows : * * * " Gentlemen, 
 you have heard the testimony in this case, and you have ex- 
 amined the handholds in question, and it is for you to say from 
 that testimony and from your personal examination of the cars 
 whether the appliance provided by this company complies with 
 the Act of Congress; in other words, whether it affords tnat safety 
 and protection to employees which the law contemplates and 
 requires. * * *" 
 
 We are of the opinion that the plaintiff in error has no valid 
 ground of objection to these instructions and agree with the trial 
 judge that the question as to whether the openings ia the buffer 
 on the ends of the cars afforded the security intended by the Act of 
 Congress was not the subject of expert testimony, and that the 
 personal inspection of such openings by sensible jurors was a 
 safer guide to the truth in regard to the matter than the mere 
 opinion of witnesses. — Ross, v. J., pp. 248-249. 
 
 8. The operation of automatic couplers is a proper subject for expert 
 testimony : 
 WabasJiR. Co. v. U. S.; Elgin J. cfc E. Ry. Go. v. TJ. S., 168 Fed., 1- 
 Circuit Court of Appeals, 7th Circuit, February 3, 1909. 
 
 In our judgment the mode of operation of automatic cou- 
 pling mechanism and the effect of various conditions thereof were 
 proper subjects for expert testimony. — Baker, C. J., p. 5. 
 
 50611—15 14 
 
210 EVIDENCE. 
 
 Grand Trunk Western Ry. Oo. v. Lindsay, 201 Fed., 836. 
 
 Circuit Court of Appeals, 7th Circuit, November 25, 1912. 
 Miller had worked for several years as a brakeman, and 
 coupling was a large part of his work. We think he was suffi- 
 ciently qualified. He had already testified that he had put his 
 "heel against the knuckle trying to push it in, and it would not 
 go." His testimony (objected to) that couplers in ordinary 
 repair can be closed with the foot as well as the hand might be 
 deemed a matter of fact learned from observation and experience; 
 but, if it be taken as a matter of opinion, we consider the testi- 
 mony admissible. Automatic couplers, like buffers, switches, 
 frogs, cattle guards, spark arresters, and other railroad machines 
 and appliances, are not to be supposed to come so fully within 
 the knowledge of average jurjmen that experts may not properly 
 be allowed to testify respectmg their nature, operation, and nor- 
 mal condition. [Oila Valley Ry. Co. v. Lyon, 203 U. S., 465.] — 
 Per Curiam, p. 844. 
 
 (a). The exhibition of model couplers to the jury, merely for the 
 purpose of illustrating particular defects, is permissible. 
 Norfolk cfc W. R, Co. v. U.S., 191 Fed., 302. 
 
 Circuit Court of Appeals, 4th Circuit, October 14, 1911. 
 
 The model in question was used merely for the purpose of 
 aiding the court and the jury in ascertaining as to whether there 
 was any defect in the coupler, and it was admitted by the Gov- 
 ernment that this model was not exactly like the coupler attached 
 to the car in question. It was not introduced in evidence, but 
 the court permitted the use of the same to illustrate the condition 
 of the coupler just as maps and drawings are used in the trial of 
 ejectment suits. * * * Thus it will be seen that this 
 model was used solely for the purpose of illustrating the exact 
 condition of the chain at the time the inspection was made. 
 Where, in a trial like the one at bar, there is a question as to 
 complicated machinery, it is competent to use any model or 
 drawing that may illustrate the condition of such machinery, so 
 as to give the jury a clear and distinct idea as to the nature and 
 character of tne defect, in order that they may intelligently deal 
 with the question that is submitted for their consideration. 1 
 Wigmore on Evidence, sec. 791, contains the following statement 
 as to the rule : ' ' The use of models, maps, and diagrams as modes 
 of conveying a witness' knowledge is illustrated in manifold 
 rulings, as well as in the daily practice of trials " [citing Watson^ 8 
 Trial, 32 How. St. Tr., 125.] 
 
 Also in the following cases this rule is announced : Western 
 Gas Co. V. Banner, 97 Fed., 882; Southern Pac^c Co. v. Hall, 100 
 Fed.760; Dohson v. WhisenJiant, 8 S. E., 126. We think the action 
 of the court below in permitting the use of models merely for the 
 purpose of illustration was not prejudicial to the rights of the 
 defendant. — Pritchard, C.J.., p. 305. 
 
GENERAL RULES. 211 
 
 B. PLEADING, PRACTICE, AND PROCEDURE. 
 
 1. The purpose of a proviso ordinarily is to restrain or modify the 
 
 enacting clause of a statute. 
 U. S. V. Kansas City Southern Ry. Co., 189 Fed., 471. [Citing 
 U. S. V. Dickson, 15 Pet., 141; Dollar Savings Bank v. Z7. /S., 
 19 Wall., 227; Leavenworth, etc., R. Co. v. V. S., 92 U. S., 733; 
 Ryan r. Carter, 93 U. S., 78; Schlemmer v. Buffalo R. <& P. R» 
 Co., 205 U. S., 1; Boston Safe Deposit Co. v. Hudson, 68 Fed., 
 758; Gould v. New York Life Ins. Co., 132 Fed., 927; McRae 
 V. Holcomb, 46 Ark., 306.] 
 
 2. In actions under the federal Safety Appliance and Hours of Service 
 
 Acts, the Government is not required in its declarations to nega- 
 tive the provisos in those statutes. 
 U. S. V. Houston B. c& T. Ry. Co., 205 Fed., 344. 
 
 Circuit Court of Appeals, 5th Circuit, May 5, 191". 
 
 The railroad still further contends that the rulings of the 
 court were correct because plaintiff did not negative that the 
 acts and conduct of the defendant complained of came within 
 the exception of the Act, which reads as follows: ''* * * in 
 case of emergency, when the employees named in this proviso 
 may be permitted to be and remam on duty for four additional 
 hours in a twenty^our hour period on not exceeding three days 
 in any week." We are agam forced to disagree. The action, 
 though for a penalty, is civil in its nature, and the pleader is 
 not required to state his cause of action with the exactness 
 and particularity that would be necessary in a criminal indict- 
 ment. In the nature of things, in most cases arising under the 
 Act, facts briuging the case within the exception would be only 
 within the knowledge of the railroad, and the Government 
 should not be required to allege that of which it knows nothing 
 simply to conform to a mere technicality of pleading. If facts 
 existed that would bring the case within the exception, they 
 constituted a defense that the railroad should have pleaded 
 and proved. [New York Central c& H. R. R. Co. v. U. 8., 165 
 Fed., 833; U. S. v. Kansas City Southern Ry. Co., 202 Fed. 
 S28.]— Foster, D, J., p. 348. 
 U. S. y. Kansas City Southern Ry. Co., 202 Fed., 828. 
 
 Circuit Court of Appeals, 8th Circuit, January 24, 1913. 
 
 The burden was upon the Government to establish that the 
 defendant had required or permitted its employees to remain on 
 duty longer than 16 hours; this, being conceded, made a prima 
 facie case. The excuses embodied in the proviso are separate 
 and affirmative defenses [Chicago, B. <& Q. R. Co. v. U. S., 195 
 Fed., 241], which must be pleaded in the answer; and the burden 
 is upon tfie defendant to sustain sucli allegations. Counsel for 
 the railway company recognized this rule by the particularity 
 with which they pleaded a latent defect in the coal, both at the 
 outset and later by amendment, and also by assuming the burden 
 of proof. If reliance was placed upon defects in the engine, such 
 as a broken shaker rod and leaky flues, these defects should have 
 
212 PLEADING, PRACTICE, AND PROCEDURE. 
 
 been pleaded. The Government should have been advised of the 
 defenses it would be required to meet. The answer contains no 
 such specific averments, and a general denial was insufficient for 
 the purpose. — Van VallcenburgJi, D. J., p. 832. 
 Per contra [in actions under the proviso in section 2 of the Hours of 
 Service Act] : 
 
 U. S. V. Missouri, K. & T. Ry. Co. etal, D. C, D. Kansas, Feb. 21, 1911, Pollock, 
 D. J. [unreported]. 
 
 — (a). But the defendant carriers in sucli actions mnst bring themselves 
 strictly within the terms of such provisos in order to avail themselves 
 of the immunities thereby afforded. 
 U. S. V, Trinity & B. V. Ry. Co., 211 Fed., 448. 
 
 Circuit Court of Appeals, 5th Circuit, December 1, 1913. 
 
 By all the canons of construction it [the defendant in the 
 instant case] must clearly bring itseK within the terms of the pro- 
 viso before it can demand inmiunity. \U. 8. v. Dickson, 15 Pet. 
 141, 165-166.]— CaZZ, D. J., p. 453. 
 . U. S. V. Kansas City Southern Ry. Co., 202 Fed., 828. 
 
 Circuit Court of Appeals, 8th Circuit, January 24, 1913. 
 
 It being conceded that the employees named had remained 
 on duty for a longer period than 16 consecutive hours, substan- 
 tiallv as charged, the defendant railway assumed the burden of 
 discharging itself from liability therefor by seeking to bring 
 itself within the following provision of the Act: ^'Provided, That 
 the provisions of this Act snail not apply in any case of casualty 
 or unavoidable accident, or the act of God ; nor where the delay 
 was the result of a cause not known to the carrier, or its officer 
 or agent in charge of such employee at the time said employee 
 left a terminal, and which could not have been foreseen." * * * 
 The excuses embodied in the proviso are separate and affirmative 
 defenses [Chicago, B. & Q. R. Co. v. U. S., 195 Fed., 241] which 
 must be pleaded in the answer; and the burden is upon the 
 defendant to sustain such allegations. Counsel for the railwav 
 company recognized this rule by the particularity with whicn 
 they pleaded a latent defect in the coal, both at the outset and 
 later oy amendment, and also by assuming the burden of proof. 
 If reliance was placed upon defects in the engine, such as a 
 broken shaker rod and leaky flues, these defects should have 
 been pleaded. The Government should have been advised of 
 the defenses it would be required to meet. The answer contains 
 no such specific averments, and a general denial was insufficient 
 for the purpose. * * * 
 
 To bring itself within the exceptions stated, the carrier 
 must be held to as high a degree of diUgence and foresight as may 
 be consistent with the object aimed at and the practical operation 
 of its railroad. Conformably to this view, it has been uniformly 
 held by the courts that ordinarily delays in starting trains by 
 reason of the fact that another train is late; from sidetracking 
 to give superior trains the right of way, if the meeting of such 
 trams could have been anticipated at the time of leaving the 
 starting point; from getting out of steam or cleaning fires; from 
 defects m equipment; from switching; from time taken for 
 
GENEEAL RULES. 213 
 
 meals; and, in short, from all the usual causes incidental to 
 operation, are not, standing alone, valid excuses within the 
 meaning of this proviso. The carrier must go still further and 
 show that such delays could not have been foreseen and pre- 
 vented by exercise of the high degree of diligence demanded. — 
 Van Vallcenburgh, D. J., pp. 831, 832, 833, 834. 
 Z7. S. V. Kansas City Southern Ry. Co., 189 Fed., 471. 
 
 District Court, Western District of Arkansas, July 3, 1911. 
 As to how a proviso should be construed, Mr. Justice Story, 
 in Z7. 8. V. Dickson [15 Pet., 141], said: ''The general rule of law 
 which has ordinarily prevailed and become consecrated almost 
 as a maxim in the intei'pretation of statutes is that where the 
 enacting clause is general in its language and objects, and a pro- 
 viso is afterwards introduced, that proviso is construed strictly 
 and takes no case out of the enacting clause which does not fall 
 fairly within its meaning. In short, a proviso carves special 
 exceptions only out of the enacting clause, and those who set 
 up any such exception must establish it as being within the 
 words as well as within the reason thereof." 
 
 From these authorities it follows that the defendant, to sus- 
 tain its plea, must bring itself strictly within the letter as well 
 as within the reason of the proviso in order to escape the penalty 
 provided by that Act. — Tneher, D. J., p. 476. 
 
 3. If an action under the federal Hours of Service Act is so tried by 
 
 court and counsel as tacitly to imply that circumstances not specifi- 
 cally set out in the answer are embraced within the issues, they 
 will be treated by an appellate court as though they had been 
 set out in the answer. 
 Z7. S. V. Kansas City SoutJiem Ry. Co., 202 Fed., 828. 
 
 Circuit Court of Appeals, 8th Circuit, January 24, 1913. 
 If reliance was placed upon defects in the engine, such as a 
 broken shaker rod and leaky flues, these defects should have 
 been pleaded. The Government should have been advised of 
 the defenses it would be required to meet. The answer contains 
 no such specific averments, and a general denial was insufficient 
 for the purpose. It is contended, however, that court and coun- 
 sel, by common consent, tried the case as though such alleged 
 defects were embraced within the issues, and it is probably true 
 that the record does not disclose any sufficiently specific objec- 
 tion to their consideration; therefore they will be treated as 
 though set out in the answer. — Van Valkenhurgfi, D. J., p. 832. 
 
 4. The allegation in the plaintiff's declaration that a violation of the 
 
 federal Safety Appliance Acts occurred "on or about" a certain 
 date is not fatally defective for want of deflniteness. 
 Atlantic Coast Line R. Co. v. U. S.,168 Fed., 175. 
 
 Circuit Court of Appeals, 4th Circuit, March 1, 1909. 
 
 The court below, in passing upon this point, [the sufficiency 
 of an allegation that the violation occurred *'on or about" a par- 
 ticular date] held that a pleading in a civil suit need not be as 
 specific in alleging dates as in a criminal proceeding where prose- 
 cution is by indictment. [Sustained.] — Pritchard, C. J., p. 176. 
 
214 PLEADING PRACTICE, AND PROCEDURE. 
 
 Louisville (& N. R. Co. v. TJ. S., 186 Fed., 280. 
 
 Circuit Court of Appeals, 6th Circuit, March 3, 1911. 
 
 The first of these grounds taken by the demurrer raises a 
 question of pleading. It is whether the paragraph commencing 
 ^Plaintiff further alleges that on or about said date defendant 
 hauled said car, " etc., is sufiiciently connected with the preceding 
 paragraph in time, place, and circumstances to show that it refers 
 to the same occurrence so as to be a more specific allegation of 
 what had in part already been stated. It must be admitted to be 
 loose and rather inconsequential pleading. But a majority of 
 the court is inclined to hold that the pleader intended to signify 
 that the later averments were of the identical matter stated in the 
 former and that this was made sufficiently apparent. — Severens, 
 C, J., p. 282. 
 
 U. S, V. Atlantic Coast Line R, Co., 153 Fed., 918. 
 
 6. In a penal action based npon the defective condition of a conpler, 
 the allegation in the plaintiff's declaration that the car in 
 question was "not equipped with couplers coupling automati- 
 cally by impact, etc.," is a conclusion or statement of result, and 
 not a substantive charge. 
 U. 8. V. lUinois Central R. Co., 177 Fed., 801. 
 
 Circuit Court of Appeals, 6th Circuit, April 5, 1910. 
 
 The specific violation charged in the declaration is that the 
 car in question was hauled in interstate traffic ^^when the coupling 
 and uncoupling apparatus on the ^A' end of said car was inoperor- 
 tive, the said lumoer on said car, M, J. <x K. C. No. 2/^2, being 
 loaded thereon so as to project out over the uncoupling lever on said 
 end of said car, and prevented the operation of the uncoupling lever 
 of said coupler, thus necessitating a man or men going between the 
 ends of the said car 2J^ and the car adjacent to couple or uncouple 
 them, and when said car 242, as above described, was not equipped 
 with couplers coupling automatically by impact, and which could 
 be uncoupled without the necessity of a man or men going between 
 the ends of the cars, as required by section 2 of the Safety 
 Appliance Act, etc." 
 
 The clause following the italicized portion of the allegation 
 quoted from the declaration is not relied upon by the Govern- 
 ment as a substantive charge, but was inserted rather by way of 
 conclusion or statement of result, there being no claim on the 
 part of the Government that the coupling and imcoupHng appara- 
 tus was inherently defective, the charge being simply that the 
 coupling and uncoupling apparatus was rendered wholly inopera- 
 tive by reason of the method of loading the lumber on the car. — 
 Knappen, C. J., pp. 801-802. 
 
 6. Actions under the federal Safety Appliance and Hours of Service 
 Acts being civil, if the Government in any case establishes by 
 uncontradicted evidence the facts recited in the declaration, it 
 is entitled to a directed verdict: 
 St. Louis, S. W. Ry. Co. v. U. S., 183 Fed., 770. 
 
 Circuit Court of Appeals, 5th Circuit, January 10, 1911. 
 On reason and weight of authority it is considered that 
 actions to recover the statutory penalties for violations of the 
 
GENERAL RULES. 215 
 
 Safety Appliance law are so far civil in their nature that the 
 strict construction applicable in criminal proceedings is not 
 required, and the United States may recover upon the prepon- 
 derance of evidence, and the trial judge may in proper cases 
 direct a verdict. — Per Curiam, p. 771. 
 
 V, S. V. Atlantic Coast Line R. Co., 182 Fed., 284. 
 
 District Court, Southern District of Georgia, May 14, 1910. 
 The law on this subject, as announced by Mr. Justice Harlan, 
 in stating the conclusions of the court in Hepner v. 27. iS., 213 
 U. S., on page 114, after summing up all the authorities, is: "If, 
 in a civil action to recover a penalty, the defendant is entitled, 
 the evidence being undisputed, to nave a peremptory instruc- 
 tion in his behalf, it is difficult to perceive why the Government 
 is not entitled to a peremptory instruction in its fa\ror, where 
 the undisputed testimony left no facts for the jury to consider, 
 but established, beyond all question and as matter of law, its 
 right to judgment for the prescribed penalty." 
 
 This is a civil case; otherwise there would have been an 
 indictment. The reasoning of the Supreme Court and its con- 
 clusion is controlling on my action. — Speer, D. J., pp. 284-285. 
 
 U. S. V. Galveston, H. cfc S. A. Ry. Co., D. C, W. D. Texas, Jan. 
 12, 1912, Foster, D. J. [unreported]; U. S. v. Missouri, K. cfe 
 T. Ry. Co. of Texas, D. C, E. D. Texas, May 30, 1912, Kussell, 
 D. J. [unreported]; TJ. 8. v. Great Northern Ry. Co., D. C, D. 
 Minnesota, June 4, 1913, Willard, D. J. [unreported]. See also 
 U. S. V. Trinity cfc B. V. Ry. Co., 211 Fed., 448; Morris v. St. 
 Louis S. W. Ry. Co. of Texas, 158 S. W., 1055; Schweig v. Chicago, 
 M. cfc St. P. Ry. Co., 205 Fed., 96. .; .%tSiHl 
 
 (a). And the refusal of tlie trial judge, in a proper case, to direct a 
 
 verdict for the Government is a reversible error; 
 V. S. V. Trinity & B. V. Ry. Co., 211 Fed., 448. 
 
 -(b). But a directed verdict is permissible only when all reasonable 
 men would deduce the same conclusions from the facts which 
 condition the issue. 
 V. S. V. Kansas City Southern Ry. Co., 202 Fed., 828. 
 
 Circuit Court of Aj)peals, 8th Circuit, January 24, 1913. 
 
 The rule of law is well settled that it is only when all rea- 
 sonable men, in the exercise of a fair and impartial judgment, 
 would draw the same conclusions from the facts which condition 
 the issue, that it is the duty of the court to withdraw that 
 question from the jury. — Van ValJcenhurgh, D. J., p. 835. 
 U. S. V. Kansas City Southern Ry. Co., 189 Fed., 471. 
 
 (c). Where the judgment of a trial court is reversed, on appeal, for 
 error in denying a motion for a directed verdict at the close 
 of the evidence, such decision, even though not unanimous, is the 
 law of the case on retrial, and requires the granting of a similar 
 motion, unless the evidence is such as to change the state of 
 facts to which the law in the previous case applied, or until the 
 decision of the Circuit Court of Appeals is reversed by the Su- 
 preme Court. 
 
 Toledo, St. L. <& W. R. Co. v. Sellers, 184 Fed., 885. 
 
216 PLEADING, PEACTICE, AND PROCEDURE. 
 
 7. Where a party submits to the court for instruction a charge 
 
 defectively prepared, it is the duty of the' court to correct the 
 defect and submit the issue, and failure so to do may be assigned 
 as error [Texas Practice] : 
 
 Galveston, H. & S. A. Ry Co v. KuHz, 147 S. W., 658. 
 
 — (a). But where the court refuses a specific prayer, and then in its 
 general charge or in another prayer covers the point in question, 
 even though the court may have erred in refusing the prayer, such 
 error is not prejudicial, and is therefore harmless. 
 ■ Norfolk & W. Ry. Co. v. O. S., 191 Fed., 302; Grand Trunk Western 
 Ry. Co. V. Lindsay, 201 Fed., 836. See also Grand Trunk West- 
 ern Ry. Co. v. Poole, 93 N. E., 26. 
 
 8. A petition for removal will be sustained if the pleadings are amended 
 
 so as to transform a non-removable cause into a removable one. 
 MyHle v. Nevada, C. <& 0. Ry. Co., 137 Fed., 193. 
 Circuit Court, District of Nevada, April 22, 1905. 
 
 In this petition it is alleged that the amended complaint 
 involves the question of the liability of petitioner, under the pro- 
 visions of the Constitution of the United States, and the Act of 
 Congress entitled ' 'An Act to promote the safety of employees, 
 etc., * * *." 
 
 The law is now well settled that an amendment to a com- 
 plaint in the state court which transforms a nonremovable case 
 mto a removable one allows the suit to be removed into the Cir- 
 cuit Court, if the defendant acts promptly. — Hawley, D. J., 
 . pp. 194-195. 
 
 St, Louis, L M. <& S. Ry. Co. v. Neal, 98 S. W., 958. 
 Supreme Court of Arkansas, November 19, 1906. 
 
 When an amendment transforms a nonremovable case into 
 a removable one, then the defendant may have and sustain a 
 second petition for removal [Moon on Removal of Causes, 157; 
 Powers V. C <& 0. Ry. Co., 169 U. S., 92].— Hill, Ch. J., p. 963. 
 NichoU V. Chesapeake & 0. Ry, Co. et al., 105 S. W., 481. 
 Court of Appeals of Kentucky, November 22, 1907. 
 
 Under the light of the foregoing authorities it is impossible 
 to avoid the conclusion that the defendant was entitled to remove 
 the case to the federal court after the filiug of the amended 
 petition pleading the federal statute. It may be that plaintiff 
 could have made out a case of actionable negligence against the 
 defendants under common-law principles; but if it had appeared 
 that under the evidence adduced, the plaintiff, under common- 
 law principles, assumed the risk of the accident by which he was 
 hurt, then his ri^ht to recover, if he had such right, would rest 
 upon the operation of the federal statute, which relieved him 
 from the assumption of the risk in question. So that the case 
 seems to fall necessarily in the category of cases which arise under 
 a law of the United States, and, this being true, was removable 
 by defendants under the federal statute regulating the jurisdic- 
 tion of the United States Circuit Courts and the removal of 
 actions from the state to the federal courts. — Barker, J,, p. 484. 
 
GENERAL RULES. 217 
 
 9. The amendment of a petition in sucli a manner as to bring 
 
 within the federal Safety Appliance Acts a case not otherwise 
 within their purview is not merely a restatement or a statement 
 in a different form of the same cause of action, but is the aver- 
 ment of a statutory cause of action in which the liability is 
 greater than in an action at the common law. 
 Allen V. Tuscarora Valley R. Co., 78 Atl., 34. 
 
 10. Where the trial court grants a compulsory nonsuit on the ground 
 of insufficient evidence to sustain a verdict on any count, its action 
 will not be reversed by an appellate court if the record is in such 
 condition as to render it impossible to determine what evidence 
 applies to each specific count. 
 
 U. S. V. Baltimore <& 0. R, Co., 185 Fed., 486. 
 
 11. Court of Appeals decisions on a given question are entitled to greater 
 weight than decisions of a District Court. 
 
 : Central Vermont Ry, Co. v. TJ. S., 205 Fed., 40. 
 
 Circuit Court of Appeals, 1st Circuit, May 13, 1913. 
 
 U. S. Y. Montpetier & W. R. R. Co., 175 Fed., 874, decided in 
 the District Court for Vermont, related to an engine having no 
 coupHng lever, and its authority, if it decides anything to the 
 contrary of the above [FaSasA R. Co. v. TJ. S., 168 Fed., 1 (C. C. 
 A.-7th Circuit); U. S. v. Denver & R. G. R. Co., 163 Fed., 519, 
 (C. C. A.-8th Circuit); Norfolk cfc W. Ry. Co. v. U. S., 177 Fed., 
 623 (C. C. A.-4th Circuit)] must yield to that of the Court of 
 Appeals decisions above cited. — Dodge, C. J., p. 41. 
 
 12. A suit for specific performance of a contract to locate and main- 
 tain a railroad division terminal at a point where its continuance 
 would impose a burden upon interstate commerce or preclude the 
 carrier's observance of the federal Hours of Service Act is 
 unsustainable. 
 
 . Kansas City SoutJiem Ry. Co. v. Quigley, 181 Fed., 190. 
 
 13. In a joint action under the federal Safety Appliance Acts, judg- 
 ment may be rendered against either or both of the defendants 
 involved. 
 
 U. S. y. Chicago, P. & St L. Ry, Co. et al., 143 Fed., 353. 
 
 District Court, Southern District of Illinois, January 19, 1906. 
 
 Under the case of Chaffee v. U. 8., 18 Wall., 516-538, 1 am of 
 
 opinion that judgment may be rendered against both or either of 
 
 the companies under these declarations. — Sanborn, D. /., p. 355. 
 
 14. Courts will take cognizance of the facts and law of any instant 
 case alone, and expressions of opinion as to the application of the 
 law to facts essentially different are not controlling in another case. 
 
 V. S. V. niinois Central R. Co., 170 Fed., 542. 
 
 Circuit Court of Appeals, 6th Circuit, March 27, 1909. 
 
 The facts and law of the instant case only are in the eye and 
 thought of the court. But expressions of opinion as to how 
 the law would be upon facts essentially different from those in 
 issue are not controlling in another case when such different 
 facts and issues are presented. These rules have been declared 
 
218 PLEADING, PRACTICE, AND PEOCEDUEE. 
 
 on many occasions by the Supreme Court itself, and no appellate 
 tribunal has more strongly emphasized them. [Cohens v. Fir- 
 ginia, 6 Wheat., 264, 399; Northern Bank v. Porter Tp., 110 U. S., 
 608; Plumley v. Massachusetts, 155 U. S., 461, 471, 474; Hans v. 
 Louisiana, 134 U. S., 1; TJ. S. v. Wong Kim Aric, 169 U. S., 
 649, 679; Harrivfian v. Northern Securities Co., 197 U. S., 244; 
 Do'imis V. Bidwell, 182 U. S., 25Sl—Severen8, C. J., p. 547. 
 
 15. The Supreme Court may consider questions not specifically men- 
 tioned in the court below if such consideration is necessary to the 
 determination of the questions actually presented. 
 
 Schlemmer v. Buffalo R. <& P. By. Co., 205 U. S., 1. 
 Supreme Court, March 4, 1907. 
 
 We certainly do not mean to qualify or limit the rule that, 
 for this court to entertain juiisdiction of a writ of error to a state 
 court, it must appear affirmatively that the state court could not 
 have reached its judgment without tacitly, if not expressly, 
 deciding the federal matter. [Bachtel v. Wilson, 204 U. S., 36.] 
 But on the other hand, if the question is duly raised and the 
 judgment necessarily, or by what appeai-s in fact, involves such 
 a decision, then ims court will take jurisdiction, although the 
 opinion below says nothing about it. [Kaukauna Water Power 
 (Jo. V. Oreen Bay & Miss. Canal Co., 142 U. S., 254.] — Holmes, 
 Justice, p. 11. 
 
 16. The Supreme Court of the District of Columbia has jurisdiction 
 of cases under the federal Safety Appliance and Hours of Service 
 Acts. 
 
 TJ. S. V. Baltimore & 0. R. Co., 26 App., D. C, 581. 
 
 Supreme Court of the District of Columbia, February 6, 1906. 
 
 It would seem, therefore, that when Congress, in section 6 
 of this statute, iiii posed a penalty for every violation of these 
 Safety Appliance Statutes, and directed that the same should be 
 recovered in a suit to be brought in the District Court of the 
 United States ''having jurisdiction in the locality" where such 
 violation shall have been committed. Congress intended to include 
 the court of the United States in the District of Columbia, which 
 was the proper tribunal to take jurisdiction in this locality of 
 such a suit for a penalty incurred by reason of a violation of this 
 statute in this District. * * * 
 
 Therefore, when Congress extended the Safety Appliance 
 Acts to the District of Columbia, Congress knew that the special 
 term described as the Circuit Court of the District of Columbia 
 was the court to take jurisdiction of a suit for the penalty pre- 
 scribed in section 6, and the United States district attorney 
 properly brought the suit in that court as the court ''having 
 jurisdiction in the locality where such violation" had been 
 committed. * * * 
 
 We are of opinion, therefore, that such power to try com- 
 mon-law civil actions such as this suit, for this penalty. Congress 
 intended should be tried in the circuit court special term of the 
 Supreme Court of the District of Columbia. — McComas, J., pp. 
 586-587, 588-589. 
 
GENERAL RULES. 219 
 
 17. Courts will take judicial notice of the federal Safety Appliance 
 
 and Hours of Service Acts: 
 See New England R. Go. v. Convoy, 175 U. S., 323, 342. See also 
 
 Kansas City, M. & B. R. Co. v. Flippo, 35 So., 457. 
 —(a). And of the Orders of the Interstate Commerce Commission 
 
 made in the furtherance thereof. 
 CaTia V. U. S., 152 U. S., 211, 222. [Citing U. S. v. TeschmaTcer, 
 
 22 How., 392; Romero v. TJ. S., 1 Wall., 721; Armstrong v. 
 
 U. S., 13 Wall., 154; Jones v. TJ. S., 137 U. S., 202; KnigTit v. 
 
 V. S. Land Ass'n., 142 U. S., 161; Jenkins v. CoUard, 145 U. S., 
 
 546.] 
 
Part VI. ACTIONS FOR PERSONAL INJURY. 
 
 GENEBAL RULES OF LAW APPLIED IN CASES UNDER THE SAFETY 
 APPLIANCE AND HOURS OF SERVICE ACTS. 
 
 1. In an action for personal injury based upon a violation of the federal Safety 
 Appliance Acts, the defense of assumption of risk is abrogated, 221; 
 
 (a) And assumption of risk is not to be charged against a plaintiff under the 
 the name of contributory negligence, 223. 
 
 2. "Assumption of risk" defined and distinguished from "contributory 
 negligence," 223; 
 
 (a) Assumption of risk presupposes knowledge of, or the means of knowing, 
 the manner in which the work involved is done, 224; 
 
 (b) Working on defective cars does not constitute assumption of risk, 224; 
 
 (c) An employee's continuance in the service of a carrier after the existence 
 of particular defects is brought to his knowledge does not constitute assump> 
 tion of risk, 225. 
 
 3. In an action for personal injury, the burden of proving negligence is on the 
 plaintiff, 226. 
 
 4. The violation by a carrier of a statutory duty resulting in the injury of an em- 
 ployee is negligence, per se, 226; 
 
 (a) And requiring an employee to use defective equipment is negligence on 
 the part of the carrier, which becomes actionable in event of injury to such 
 employee resulting therefrom, 226; 
 
 (b) But the temporary substitution by a carrier of a "stub pilot" for the long 
 pilot previously used, in order to install an automatic coupler, does not con- 
 stitute actionable negligence, 228. 
 
 6. In an action for personal injury based upon a violation of the federal Safety 
 Appliance Acts the defense of contributory negligence is unimpaired, 228 ; 
 (a) But the burden of proving contributory negligence is on the defendant, 
 229; 
 
 6. If an employee, in the course of his employment, enters between cars or 
 steps between the rails in order to examine or to operate a coupler and is 
 thereby injured, he is not chargeable, for this reason alone, with contributory 
 negligence so as to preclude his recovery of damages, 229; 
 
 7. In an action for personal injury the question of contributory negligence is or- 
 dinarily one for the jury, 230; 
 
 (a) Knowledge and experience in the work performed are proper elements to 
 be considered in determining what is contributory negligence, 230. 
 
 8. In an action for personal injury, the question of proximate cause ordinarily 
 is one for the jury, 230; 
 
 (a) But where the facts are undisputed, and are such that all reasonable minds 
 must reach the same conclusion, the question of the proximate cause of an 
 injury is one of law, 230. 
 
 9. In order to bring an action for personal injury within the purview of the federal 
 Hours of Service Act or the federal Safety Appliance Acts, it is necessary that some 
 causal relation or connection be established between a violation of the statute 
 and the injury* sustained, 231; 
 
 (a) But if all the facts necessary to bring an action for personal injury within the 
 purview of either of the Acts are stated in the declaration, it is immaterial 
 that the statute itself is not described in terms therein, 281. 
 220 
 
aENEEAL BULES OF LAW. 221 
 
 10. Irrespective of any statute, it is the duty of carriers to provide reasonably safe 
 appliances and tools and to promulgate and enforce efficient rules in the further- 
 ance of the safety of employees, 232 ; 
 
 (a) But the mere promulgation of such rules without their enforcement will 
 not protect a carrier from liability under a mandatory statute, 232. 
 
 11. Where one of the grounds in a motion for a new trial is that the amount of the 
 verdict is excessive, and the trial court has denied such motion, an appellate 
 court, in passing upon an assignment of error based thereon, will not disturb 
 the verdict on such grounds, unless the verdict is such as to shock its judicial 
 conscience or as to indicate that the jury must have been unduly influenced in 
 some way, or swayed by bias, prejudice, or passion, 233. 
 
 12. In an action for personal injuries based upon a violation of the federal Safety 
 Appliance Acts, evidence of such injury sustained by reason of the defendant's 
 use in interstate commerce of cars so defective as to be incapable of being 
 coupled without some one going between them establishes a prima facie case, 
 even though the precise nature of the defect is not disclosed, 233. 
 
 13. Where the declaration in an action for personal injuries alleges that defendant 
 was at the time of the accident engaged in operating a train in interstate com- 
 merce, and that plaintiff was employed by defendant in such operation, it will 
 be inferred, after verdict, that the train was moved by defendant, although not 
 so alleged in terms, 233. 
 
 14. The Acts are intended, not to increase the difficulty of securing compensation 
 for injuries sustained by reason of defective appliances, but to decrease the 
 number of instances in which such injuries occur, 233. 
 
 1. In an action for personal injury based upon a violation of the fed- 
 eral Safety Appliance Acts, the defense of assumption of risk is 
 abrogated : 
 
 That any employee of any such common carrier who may be 
 injured by any locomotive, car, or train in use contrary to the pro- 
 vision of this Act shall not be deemed thereby to have assumed the 
 risk thereby occasioned, although continuing in the employment of 
 such carrier after the unlawful use of such locomotive, car, or train 
 had been brought to his knowledge.— 5ec. 8, Act March 2, 1893 [27 Stat, at 
 L., 531, 532], 
 
 * * * and such movement or hauling of such car [to the nearest 
 available repair point] shall be at the sole risk of the carrier, and nothing 
 in this section shall be construed to relieve such carrier from liability 
 in any remedial action for the death or injury of any railroad employee 
 caused to such employee by reason of or in connection with the move- 
 ment or hauling of such car with equipment which is defective or 
 insecure or which is not maintained in accordance with the require- 
 ments of this Act and the other Acts herein referred to; * * *. — 
 Sec. 4, Act April 14, 1910 [36 Stat, at L., 298, 299.] 
 
 Schlemmer v. Buffalo, R. cfc P. Ry. Co., 220 U. S., 590. 
 Siipreme Court, May 15, 1911. 
 in the present case, the statute of Congress expressly provides 
 that the employee shall not be deemed to have assumed the risk of 
 injury if such is occasioned by his continuing in the employ of 
 the carrier after the unlawful use of the car or train in the failure 
 to provide automatic couplers has been brought to his knowl- 
 edge. — Day, Justice, p. 596. 
 
222 ACTIONS FOR PERSONAL INJURY. 
 
 Atlantic Coast Line R. Co. v. TJ. S., 168 Fed., 175. 
 
 Circuit Court of Appeals, 4th Circuit, March 1, 1909. 
 
 That the effect of section 8 is to change the relation of master 
 and servant by abrogating the doctrine of assumption of risk, in 
 so far as it relates to this class of cases, is, we think, well settled. — 
 PriUhard, C. J., p. 180. 
 
 Texas <& Pacific Ry. Co. v. Swearingen, 122 Fed., 193. 
 Circuit Court of Appeals, 5th Circuit, April 7, 1903. 
 
 The passage by the Congress of the United States of the Act 
 to promote the safety of travelers and employees upon railroads, 
 etc., * * * clearly indicates the propriety and necessity of 
 modifying the terms and limiting the application of the rules 
 theretofore announced by courts of the highest authority with 
 reference to the doctrine of assumed risks. — McCormiclc, C. J., 
 p. 205. 
 
 St. Louis c& 8. F, R. Co. v. Delk, 158 Fed., 931. 
 
 Circuit Court of Appeals, 6th Circuit, March 3, 1908. 
 
 And section 8 declares that the employee shall not be deemed 
 to have assumed the risk occasioned by the failure of the railroad 
 company to equip its cai-s as required by the second section. — 
 Severens, C. J., p. 936. 
 
 St. Louis Cordage Co. v. Miller, 126 Fed., 495. 
 
 Cii-cuit Court of Appeals, 8th Circuit, November 12, 1903. 
 The factory act of Missouri [2 Rev. Stat., 1899, sec. 6433] 
 does not abolish the defense of assumption of risk ia cases which 
 fall under its provisions. In this respect it differs from the Act 
 of the Congress of the United States [Act March 2, 1893, chap. 
 196, 27 Stat, at L., 531, U. S. Comp. Stat., 1901, p. 3174], which 
 requires cars engaged in intei-state commerce to be equipped with 
 automatic couplers. Congress in that Act expressly provided 
 that in case the raihoad companies failed to comply with its terms 
 the employees should not be deemed to have assumed the risk 
 thereby occasioned. — Sanhorn, C. «/., p. 509. 
 
 Denver & R. G. R. Co. v. ArrigU, 129 Fed., 347; Plummer v. 
 ' Northern Pacific Ry. Co., 152 Fed., 206; U. S. v. Atlantic Coast 
 Line R. Co., 153 Fed., 918; Norfolk & W. Ry. Co. v. Hazelrigg, 184 
 Fed., 828; Chicago, R. I. <& P. Ry. Co. v. Brown, 185 Fed., 80; 
 Nichols V. Chesapeake cfc 0. Ry. Co., 195 Fed., 913; Grand Trunk 
 Western Ry. Co. v. Lindsay, 201 Fed., 836; Southern Ry. Co. v. 
 Snyder, 205 Fed., 868; Coley v. North Carolina Ry. Co., 57 L. R. 
 A., 817; iMken v. Lake Shore & M. S. Ry. Co., 94 N. E., 175; 
 Winkler v. Philadelphia <& R. Ry. Co., 53 Atl., 90; Allen v. Tus- 
 carora Valley R. Co., 78 Atl., 34: Montgomery v. Carolina <& N. W. 
 R. Co., 80 S. E., 83; Atlantic Coast Line R. Co. v. Whitney, 61 So., 
 179; St. Louis. I. M. & 8. Ry. Co. v. Neal, 78 S. W., 220; Galves- 
 ton, 11. cfc S. A. Ry. Co. V. Kurtz, 147 S. W., 658; La Mere v. 
 Ry. Trans. Co. of Minneapolis, 145 N. W., 1068; Denver cfe R. G, 
 R. Co. V. Gannon, 90 Pac, 853; Luken v. Lake Shore cfe M. 8. 
 Ry. Co., 154 111. App., 550; Dailey v. Southern Ry. Co., C. C, E. 
 D. Tennessee, Jan. 10, 1911, Sanford D. J, [unreported]. See 
 also St. Louis, I. M. <& S. Ry. Co. v. McWhirter, 140 S. W. 672. 
 
GENERAL RULES OF LAW. 223 
 
 Per Contra: 
 
 Cleveland, C. C. & St. L. Ry. Co. v. Baher, 91 Fed., 224; Johnson v. Southern 
 Pacific Co., 117 Fed., 462. 
 
 — (a). And assumption of risk is not to be charged against a plaintiff 
 under the name of contributory negligence. 
 Schlemmer v. Buffalo, R. cfc P. Ry. Co., 205 U. S., 1. 
 Supreme Court, March 4, 1907. 
 
 The preliminary conduct of getting into the dangerous 
 employment or relation is said to be accompanied by assumption 
 of the risk. The act more immediately leadiag to a specific acci- 
 dent is called negligent. But ths difference between the two is 
 one of degree rather than of kind ; and when a statute exonerates 
 a servant from the former, if at the same time it leaves the defense 
 of contributory negligence still open to the master, a matter upoD 
 which we express no opinion, then, unless great care be taken, 
 the servant's rights will be sacrificed by simply charging him with 
 assumption of the risk under another name. — Holmes, Justice, 
 pp. 12-13. 
 
 Chicago Junction Ry. Co. v. King, 169 Fed., 372. 
 
 Circuit Court of Appeals, 7th Circuit, February 3, 1909. 
 The statute would be honored only m its breach if the same 
 facts that would defeat the employee imder the common-law rule 
 of assumed risk can be used to defeat him under the name of con- 
 tributory negligence. — Baker, C. J., p. 377. 
 Southern Pacific Co. v. Allen, 106 S. W., 441. 
 
 Court of Civil Appeals of Texas, December 4, 1907. 
 
 If, in cases where the same facts which would make out the 
 defense of assumed risk (were such defense not abolished) would 
 also constitute the defense of contributory negligence, the latter 
 defense should be allowed to prevail, the humane and beneficent 
 purpose of Congress would in a large number of cases be rendered 
 abortive. Therefore, as a statute should be so construed as to 
 accomplish its evident intention and purpose, we are of the 
 opinion that the Act, in abolishing the defense of assumed risk, 
 did away with any other defense, though of a different name, which 
 would be constituted by identically the same facts which go to 
 establish that of assumed risk. — Neill, J., p. 446. 
 See also Grand Trunk Western Ry Co. v. Lindsay, 201 Fed., 836. 
 
 2. "Assumption of risk" defined and distinguished from contributory 
 negligence : 
 Schlemmer v. Buffalo, R. c& P. Ry. Co., 205 U. S., 1. 
 Supreme Court, March 4, 1907. 
 
 Assumption of risk in this broad sense obviously shades into 
 negligence as commonly understood. * * * ^j^q preliminary 
 conduct of getting into the dangerous employment or relation is 
 said to be accompanied by assumption of the risk. The act more 
 immediately leading to a specific accident is called negligent. — 
 Holmes, Justice, p. 12. 
 Schlemmer v. Buffalo, R. & P. Ry. Co., 220 U. S., 590. 
 Supreme Court, May 15, 1911. 
 
 In the absence of statute taking away the defense, or such 
 obvious dangers that no ordinarily prudent person would incur 
 
224 ACTIONS FOR PERSONAL INJURY. 
 
 them, an employee is held to assume the risk of the ordinary 
 dangers of the occupation into which he is about to enter, and 
 also those risks and dangers which are known, or are so plainly 
 observable that the employee may be presumed to know of them, 
 and if he continues in the master's employ without objection, he 
 takes upon himself the risk of injury from such defects. Choc- 
 taw , 0. cfc G, R. Co, V. McDade, 191 U. S., 64, and former cases 
 in this court therein cited. 
 
 Contributory negligence, on the other hand, is the omission 
 of the employee to use those precautions for his own safety which 
 ordinary prudence requires. — Day, Justice, p. 596. 
 Norfollc c& W. By. Co. v. Hazelrigg, 170 Fed., 551. 
 
 -Circuit Court of Appeals, 6th Circuit, April 19, 1909. 
 
 The assumption of those risks of the employment which are 
 known to him, or would be known hj the exercise of common 
 intelligence, is a term of the contract with his employer, and con- 
 tinues to be so from the beginning. 
 
 If a new risk becomes apparent, he may refuse to go on until 
 it is removed. It is not a risk which he had assumed. If he does 
 go on, he is deemed to have assumed the new risk also, and the 
 original contract is modified to that extent, and the employer will 
 understand that the employment is to continue upon the new con- 
 ditions. The Safety Appliance Act ehminates this element of 
 assumption of risk from the contract of emplo j^ment when the risk 
 arises from the nonperformance of the duties imposed by the Act 
 upon the employer. Contributory negligence is a different matter. 
 It consists of mutual faults, the concurrence of which causes the 
 mischief. In a case like this the fault of the employer consists 
 in the creation of, or permitting the continuance of, a condition 
 of danger; the fault of the emploj^ee is that, seeing the dangerous 
 condition, he does not conduct himself with reasonable prudence 
 to avoid injury. His contributory negUgence is wholly alien to 
 the contract of employment. The contract is not affected by 
 the circumstance of the accident. The latter is an incident occur- 
 ring during its execution. — Severens, G. J., pp. 553-554. 
 
 (a). Assumption of risk presupposes knowledge of, or the means of know- 
 ing, the manner in which the work involved is done : 
 Voelker v. Chicago, M. & St P. Ry. Co., UQ Fed., 867. 
 
 Circuit Court, Northern District of Iowa, June 16, 1902. 
 When the claim is made that an employee has assumed the 
 risk caused hj the manner in which the business of the master 
 is conducted, it must be shown that the employee knew, or had 
 means of knowing, the manner in which the work was done, so 
 that the inference may be fairly drawn that by continuing in 
 the employ of the master, having knowledge, or its equivalent, 
 of the risks to which he would be subjected, he intended to 
 assume such risks. — STiiras, D. J., p. 875. 
 
 (b). Working on defective cars does not constitute assumption of risk: 
 Chicago, M. & St. P. Ry. Go. v. Voellcer, 129 Fed., 522. 
 Circuit Court of Appeals, 8th Circuit, March 26, 1904. 
 
 Of this evidence it is sufficient to say that, working under 
 such circumstances with a <^ar in use contrary to the congres- 
 
GENERAL KULES OF LAW. 225 
 
 sional Act does not, in the presence of section 8, amount to an 
 assumption of the risk arising therefrom, and the court very 
 properly instructed the jury to that effect. — Van Devanter, G. J., 
 p. 530. 
 (c). An employee's continuance, in the service of a carrier after the 
 existence of a particular defect is brought to his knowledge does 
 not constitute assumption of risk. 
 
 U. S. V. Baltimore db 0. R. Co., 170 Fed., 456. 
 
 District Court, Western District of Pennsylvania, May 17, 1909. 
 There is another phase of the Act to which it is perhaps not 
 necessary to call your attention here— that is, that a railway 
 employee does not assume the risks occasioned by continuing 
 in the employ of a railroad company after knowledge of defects 
 on the cars or the failure of the railroad company to keep its 
 cars equipped as provided by the Act. This law changed the 
 common law with respect to that. — Orr, D. J., p. 458. 
 
 Greenlee v. Southern By. 6^., 30 S. E., 115. 
 
 Supreme Court of North Carolina, May 26, 1898. 
 
 Congress has enacted that self-couplers should be used. 
 For their lack, this plaintiff was injured. It is true the defend- 
 ant replies that the plaintiff remained in its service knowing it 
 did not have self -couplers. If that were a defense, no railroad 
 company would ever be liable for failure to put in life-saving 
 devices, and the need of bread would force employees to con- 
 tinue the annual sacrifice of thousands of men. But this is not 
 the doctrine of ' 'assumption of risk." That is a more reasonable 
 doctrine, and is merely that when a particular machine is defec- 
 tive or injured, and the employee knowing it continues to use 
 it, he assumes the risk. That doctrine has no application where 
 the law requires the adoption ot new devices to save life or limb 
 (as self -couplers), and the employee, either ignorant of that 
 fact or expecting daily compliance with the law, continues in 
 service with the appliances formerly in use. — GlarJc, J., p. 116. 
 
 Winkler v. PUladelpUa cfe R. Ry. Co., 53 Atl., 90. 
 Superior Court of Delaware, Jure 10, 1902. 
 
 The law manifestly conten^plates that the car shall be so 
 equipped that the coupling shall actually be made automatically 
 aTid if not so equipped the plaintiff did not assume the risk arising 
 therefrom, even though he continued in the employment of the 
 compa?iy after such unlawful use of the cars had come to his 
 knowledge. — Lore, C7i. J., p. 92. 
 
 PUladelpUa & R. Ry. Co. v. Winkler, 56 Atl., 112. 
 Supren-e Court of Delaware, Jure 19, 1903. 
 
 Applyi^^g to this case the pri7i( iple thus announced, we are 
 of the opinion that the court below correctly charged that 
 "The law manifestly contemplates that the car shall be so 
 equipped that the coupUng shall actually be made automatically; 
 if not so equipped the plaintiff did not assume the risk arising 
 therefrom, even though he continued in the employment of the 
 company after such unlawful use of the cars had come to his 
 knowledge." — Boyce, J., p. 114. 
 
 But see CMcago, M. & St. P. Ry. Co. v. Voelker, 129 Fed., 522. 
 50611—15 15 
 
226 ACTIONS FOR PERSONAL INJTTRY. 
 
 3. In an action for personal injury, the burden of proving negligence 
 
 is on the plaintiff. 
 Winkler v. Philadelphia dh R. Ry. Co., 53 Atl., 90. 
 Superior Court of Delaware, June 10, 1902. 
 
 This action is based upon the negligence of the defendant 
 , company. Such negligence is never presumed, but must be 
 proved, to entitle the plaintiff to a verdict. The burden of 
 proving such negligence is upon the plaintiff. — Lore, Oh. J., pp. 
 91-92. 
 Philadelphia cfc R. Ry. Co. v. Winkler, 56 Atl., 112. 
 Supreme Court of Delaware, June 19, 1903. 
 
 It was claimed by the plaintiff that at the time of the acci- 
 dent he was engaged in moving interstate traffic for the defend- 
 ant company with an engine and tender not equipped according 
 to the statutory requirement. The burden of proof was upon 
 him to show this. — Boyce, «/., p. 114. 
 
 4. The violation by a carrier of a statutory duty resulting in the 
 
 injury of an employee is negligence per se: 
 Campbell v. Spokane <Sc 1. E. R. Co., 188 Fed., 516. 
 
 Circuit Court, Eastern District of Washington, April 17, 1911. 
 When a statute is designed to protect a particular class of 
 persons against a particular class of injuries, a violation of the 
 statutory duty constitutes negligence per se, whenever one of 
 the protected class is injured from a cause against which the 
 statute was designed to protect him. — Rvdkin, D. J., pp. 517-518. 
 See also Grand Trunk Western Ry. Co. v. Poole, 93 N. E., 26; 
 La Mere v. Ry. Tr ns. Co. of Minneapolis, 145 N. W., 1068; St. 
 Louis, L M. cfc S. Ry. Co. v. 'McWhirter, 140 S. W. 672; NashviUe, 
 C. cfe St. L. Ry. Co. V. Henry, 164 S. W., 310. But see St. Louis, 
 L M. c& S. Ry. Co. v. McWhirter, 229 U. S., 265. See also: 
 Shohoney v. Quincy, 0. <& K. C. Ry. Co., 122 S. W., 1025. 
 Supreme Court of Missouri, November 27, 1909. 
 
 Whilst the Leeds coupler, as it was being used in the case 
 now before us, was an automatic coupler and did not require 
 the switchman to go between the cars, yet because it would not 
 couple automatically with one of its kind it did not measure 
 up to the standard prescribed by the Act of Congress. But an 
 act is not per se negligence at common law because it fails to 
 meet the requirement of a statute. * * * So, although the 
 Leeds coupler may have come under the ban of the Act of Con- 
 gress, yet unless it could be shown to have not been reasonably 
 safe for the uses to which it was put, it furnished no cause of 
 action for the plaintiff in this case. — Valliant, J., p. 1035. 
 
 — (a). And requiring an employee to use defective equipment is neg- 
 ligence on the part of the carrier, which becomes actionable in 
 event of injury to such employee resulting therefrom. 
 Southern. Ry. Co. v. Carson, 194 U. S., 136. 
 Supreme Court, April 18, 1904. 
 
 The trial court in one of its instnictions set forth this pro- 
 vision, and told the jury that if they found the railway company 
 was engaged, and these cars were being used, in interstate traffic, 
 
GENERAL RULES OF LAW. 227 
 
 and that they were not equipped with the automatic couplers 
 required, such failure was negligence; and it was further charged 
 that raUroads were required to keep their appliances in safe and 
 suitable order. * * * By this ruling no right specifically set 
 up or claimed under the Act of Congress by defendant below was 
 decided against. There was no pretense that the Act of Congress 
 provided that the automatic couplers need not be kept in order, 
 and whether the cars in question were used in moving interstate 
 traffic and whether the coupling appliances were defective or not, 
 were facts left to the jury and determined by their verdict. The 
 recovery was not sought on the single ground of want of safe 
 appliances. That was important in its connection with Carsjn's 
 bemg ordered to go between the cars, and it was negligence while 
 he was obeying that order, which was chiefly relied on. — Fuller 
 Chief Justice, pp. 140-141. 
 
 VoelJcer v. Chicago, M. cfc St. P. Ry. Co., 116 Fed., 867. 
 
 Circuit Court, Northern District of Iowa, June 16, 1902. 
 
 Subjecting an employee to risk life and limb by calling 
 upon him to use appliances which have become defective and 
 inoperative through the failure to use proper care on part of 
 the master is certainly negligence, which will become actionable 
 if injury results therefrom to the employee, and liability therefor 
 can not be avoided by the plea that if the company was thus 
 guilty of actionable negligence in this particular it can not be 
 held responsible therefor because it was guilty of another act of 
 negligence which aided in causing the accident. — Shiras, D. J., 
 p. 875. 
 
 Greenlee v. Southern Ry. Co., 30 S. E., 115. 
 
 Supreme Court of North Carolina, May 26, 1898. 
 
 In any aspect of this case, the defendant is liable, whether 
 the plaintiff was or was not guilty of contributory negligence; 
 for the negligence of the defendant in not having seK-couplers, 
 and in sending a man to couple cars at all, was a continuing neg- 
 ligence, which existed subsequent to the contributory neglis^ence, 
 if there had been any, of the plaintiff, and was the proximate 
 cause — the causa causans — of the injury. — Clarlc, J., p. 115. 
 
 Troxler v. Southern Ry. Co., 32 S. E., 550. 
 
 Supreme Court of North Carolina, March 21, 1899. 
 
 It has been heretofore held, in Greenlee v. Railway Co., 30 
 S. E., 115, that failure of a railroad company to equip its freight 
 cars with modern self -coupling devices is negligence per se, con- 
 tinuing up to the time of an injury sustained by an employee in 
 coupling cars by hand, and renders the company liable, whether 
 sucn employee was negligent in the manner of making the coup- 
 ling or not. The same ruling had been previously made as to the 
 duty of furnishing automatic car couplers on passenger trains in 
 Mason v. Railroad Co., 16 S. E., 698.— CZar^, J., p. 550. 
 
 Elmore v. Seaboard Air Line Ry. Co., 41 S. E., 786. 
 
 Supreme Court c f North Can lina, June 13, 1902. 
 
 This propositi( n is settled in the cases abave cited, to wit, it 
 is the duty of the defendant to use automatic couplers, and if, on 
 failure so to do injury occurs to an employee which would not 
 
228 ACTIONS FOR PERSONAL INJURY. 
 
 have happened if there had been a coupler, this is a continuing 
 negligence en the part of the emplcyer, which cuts cff the defense 
 cf ccntributory negligence; such failure being the causa causans — 
 Clarlc, J., p. 787. 
 Grand Trurik Western By. Co. v. Lindsay, 201 Fed., 836; WinTcler v. 
 PUladelpUa cfc R. By. Co., 53 Atl., 90; Philadelphia ck B. By. Co. 
 V. Winkler, 56 Atl., 112; Galveston H. <& S. A. By. Co. v. KuHz, 
 147 S. W., 658. 
 
 -(b). But the temporary substitntion by a carrier of a "stub pilot'* 
 for the long pilot previously used, in order to install an automatic 
 coupler, does not constitute actionable negligence. 
 
 Briggs v. Chicago cfc N. W. By. Co., 125 Fed., 745. 
 
 Circuit Court of Appeals, 8th Circuit, October 26, 1903. 
 
 It was its duty, or at least its privilege, to equip its engine, 
 as it did, with an automatic coupling appliance, which it could 
 only do by removing the long pilot and substituting a shorter one. 
 The shorter pil( t which it adopted was then in general use on 
 other roads, and was regarded as a reasonably safe appliance, and 
 at the time of the accident it was in nowise out of repair. As a 
 general rule, a railroad company is not required to use upon all 
 cf its cars the safest possible appliances, or those of the latest and 
 most improved pattern, but is at liberty to make use of such 
 appliances as are at the time in general use on other well-managed 
 railroads, and are of the kind that are regarded as reasonably 
 safe. [Northern Pacific R. Co, v. Blake, 63 Fed., 45.] In the case 
 in hand it appears that stub pilots are in general use, and are the 
 only ones that can be successfully empl( yed when engines are 
 fitted with automatic couplers. In what respect, then, was the 
 defendant company guilty of any negligence ? Counsel for the 
 plaintiff in error says that he concedes that the company was not 
 negligent in leaving its road unfenced, but he suggests that as the 
 engine in question happened to be employed at tne time in what 
 is termed "open-range country," where cattle roamed at will, the 
 defendant company was negligent in removing the long pilot and 
 substituting a shorter one. We can not adopt this view. As 
 locomotive engines are liable to be used en any portion f f a rail- 
 road, and as they may be needed at any moment to handle inter- 
 state traffic, we think that an interstate carrier like the defendant 
 company is entitled to have all of its engines so equipped that they 
 may at any time be used in such service without viclation of the 
 Act of Ccngress, and that it can not be foimd guilty of negfigence 
 in so doing. — Thayer, C. J.,^. 747. 
 
 In an action for personal injury based upon a violation of the 
 federal Safety Appliance Acts, the defense of contributory negli- 
 gence is unimpaired: 
 Schlemmer v. Buffalo, B. & P. By. Co., 220 U. S., 590. 
 Supreme Court, May 15, 1911. 
 
 But there is nothing in the statute absolving the employee 
 from the duty of using ordinary care to protect himself from 
 injury in the use of the car with the appliances actually fur- 
 nished. In other words, notwithstanding the company failed 
 
GENEEAL RULES OF LAW. 229 
 
 to comply with the statute, the employee was not for that 
 reason absolved from the duty of usmg ordinary care for his 
 own protection under the circumstances as they existed. This 
 has been the holding of the courts in construing statutes enacted 
 to promote the safety of employees. [Citing cases]. — Bay, Jus- 
 tice, pp. 596-597. 
 Denver & R. G. R. Co. v. Arrighi, 129 Fed., 847; Toledo, St. L. & 
 W. R. Co. V. Gordon, 177 Fed., 152; Poppkir v. Minneapolis, 
 St. P. S S.S. M. Ry. Co.. 141 N. W., 798; Dailey v. Southern Ry. 
 Co., C. C, E. D. Tennessee, Jan. 10, 1911, vSanford, D. J. 
 [unreported]. But see Johnson v. Great Northern Ry. Co., 178 
 Fed., 643. 
 
 — (a). But the burden of proving contributory negligence is on the 
 defendant. 
 WinUer v. Philadelphia cfc R. Ry. Co., 53 At!., 90. 
 
 6, If an employee, in the course of his employment, enters between 
 cars or steps between the rails in order to examine or to operate 
 a coupler and is thereby injured, he is not chargeable, for this 
 reason alone, with contributory negligence so as to preclude his 
 recovery of damages. 
 
 SMemmer v. Buffalo, R. <& P. Ry. Co,, 205 U. S., 1. 
 Supreme Court, March 4, 1907. 
 
 We are clearly of opinion that Schlemmer's rights were in 
 no way impaired by his getting between the rails ^nd attempting 
 to couple the cars. So far he was saved by the provision that 
 he did not assume the risk. — Holmes, Justice, pp. 13-14. 
 
 Chicago, R, L <& P. Ry, Co, v. Brmmiy 229 U. S., 317. 
 Supreme Court, June 10, 1913. 
 The movement of trains requires prompt action, and we 
 can not hold that as a matter of law Brown, in leaning forward 
 to remove a pin which would have yielded to his effort, was 
 guilty of neghgence because he did not anticipate that his foot 
 might slip and be caught in on open frog rail of which he had or 
 could be charged with knowledge. The case is within the ruling 
 in Texas & Pacific Ry. Co. v. Harvey, 228 U. S., 319. — McKenna, 
 Justice, pp. 321-322.' 
 
 Norfolk & W. Ry. Co. v. Hazelrigg, 184 Fed., 828; Chicago, R. I, 
 <x P. Ry. Co. V. Brown, 185 Fed., 80; Nichols v. Chesapeake 
 <& 0. Ry. Co., 195 Fed., 913; Grand Trunk Western Ry. Co. v. 
 Lindsay, 201 Fed., 836; St. Louis, L M. c& S. Ry. Co, v. York, 
 123 S. W., 376; Johnston v. Chicago Great Western Ry. Co., 
 164 S. W., 260; Kansas City M. & B. R. Co. v. FUppo, 35 So., 
 457; Sprague v. Wisconsin Central Ry. Co., 116 N. Wt, 104. See 
 also Grand Trunk Western Ry. Co. v. Poole, 93 N. E., 26; Buck- 
 lew V. Central Iowa Ry. Co., 21 N. W., 103. 
 
 Per Contra: 
 
 ToUdo, St. L. & W. R. Co. v. Gordon, 177 Fed., 152. See also Qxlhert v. Burling- 
 ton a R. & N. Ry. Co., 128 Fed., 529; SiUtle v. Choctaw, 0. & G. R. Co., 144 
 Fed., 668; Union Pacific R. Co. v. Brady, 161 Fed., 719; Norfolk & W. Ry. Co. 
 V. fia2gZn^(7 (1st appeal). 170 Fed., 551. But see Chicago, B. & Q. Ry. Co. v. 
 ?7. 5-., 211 Fed., 12. 
 
!2d© ACTIOlSrS FOE PERSONAL INJURY. 
 
 7. In an action for personal injury the question of contributory negli- 
 
 gence is ordinarily one for the jury. 
 
 Donegan v. Baltimore dc N. Y. Ry. Co., 165 Fed., 869. 
 
 Circuit Court of Appeals, 2nd Circuit, November 16, 1908. 
 Without attempting to differentiate between the defense 
 of assumption of the risk, which can not be set up in an action 
 based upon the Safety Appliance Law, and the defense of con- 
 tributory negligence, it is sufficient to say that the question of 
 contributory negligence here was one for the jury. * * * 
 
 It was peculiarly within the province of the jury to look 
 into all the facts ana circumstances and determine whether the 
 plaintiff used the ordinary care required of him in carrying out 
 the order which was given him. — Noyes, C. J., p. 872. 
 
 Johnson V. Great Northern Ry. Co., 178 Fed., 643; Chicago, R. L 
 <fh P. Ry. Co. V. Brown, 185 Fed., 80; Nichols v. ChesapeaJce c& 
 0. Ry. Co., 195 Fed., 913; Grand Trunk Western Ry. Co. v. 
 Poole, 93 N. E., 26; La Mere v. Ry. Trans. Co. of Minneapolis, 
 145 N. W., 1068; Brady v. Kansas City, St. L. & C. R. Co., 
 102 S. W., 978; St. Louis, I. M. cfc S. Ry. Co. v. Yorlc, 123 
 S. W., 376; Johnston v. Chicago Great Western Ry. Co., 164 
 S. W., 260. 
 
 (a). Knowledge and experience in the work performed are proper 
 elements to be considered in determining what is contributory 
 negligence. 
 
 Norfolk cfc W. Ry. Co. v. Hazelrigg, 184 Fed., 828. 
 
 8. In an action for personal injury, the question of proximate cause 
 
 ordinarily is one for the jury: 
 
 Donegan v. Baltimore & N. Y. Ry. Co., 165 Fed., 869. 
 
 Circuit Court of Appeals, 2nd Circuit, November 16, 1908. 
 It is generally tno province of the jury to determine the 
 proximate cause of an injury. * * * it was for the jury to 
 determine whether the failure of the defendant to equip the cars 
 with the appliances required by the statute was, in view of all the 
 facts and circumstances, a proximate cause of the accident. — 
 Noyes, C. J., pp. 871-872. 
 
 Erie R. Co. v. RusseU, 183 Fed., 722; Grand Trunk Western Ry. 
 Co. V. Poole, 93 N. E., 26; La Mere v. Ry. Trans. Co. of Min- 
 neapolis, 145 N. W., 1068; Thornhro v. Kansas City, M. c& 0. 
 Ry. Co., 139 Pac, 410; Devine v. Illinois Central R. Co., 156 
 lU. App., 369; Snyder v. Southern Ry. Co., C. C. E. D. Teimessee 
 Jan. 21, 1910. Sauford, D. J. [unreported]. 
 
 — (a). But where the facts are undisputed, and are such that all rea- 
 sonable minds must reach the same conclusion, the question of the 
 proximate cause of an injury is one of law. 
 Devins v. Chicago <& C. R. R. Co., 102 N. E.. 803. 
 
GENEEAL RULES OF LAW. 231 
 
 9. In order to bring an action for personal injury within the purview 
 of the federal Hours of Service Act or the federal Safety Appliance 
 Acts, it is necessary that some causal relation or connection be 
 established between a violation of the statute and the injury 
 sustained. 
 
 Devine v. Chicago cfc C. R. R. Co., 102 N. E., 803. 
 Supreme Court of Illinois, June 18, 1913. 
 
 But the locomotive had no hrake. It could only be stopped 
 by reversing the lever. This imparted a swaying motion to it, 
 which, in connection with the defective track, caused the derail- 
 ment, and the deceased was jostled from the footboard after the 
 locomotive got off the rails. Under these facts, the direct and 
 proximate cause of the injury was the derailment of the loco- 
 motive, and the derailment was an independent cause, not in any 
 way connected with the defect in the coupling appliances, that 
 that caused the injury. If the failure to have the locomotive 
 equipped with an automatic coupler such as is required by the 
 statutes does no more than to bring about a condition which 
 makes the injury possible by the intervention of some other dis- 
 connected cause, then the negligence complained of is not the 
 proximate cause of the injury. It seems to us that the most 
 that can possibly be said of the negligence charged in the declara- 
 tion is that it produced a condition which, being operated upon 
 by other disconnected acts of negligence, caused the injury com- 
 plained of. — Vickers, J., p. 807. 
 
 Dodge v. Chicago Great Western Ry. Co., 146 N. W., 14; Dailey v. 
 Southern Ry. Co., C. C, E. D. Tennessee, Jan. 10, 1911, San- 
 ford, T>. J. [unreported]. See also St. Louis, I. M. cfe S. Ry. Co, 
 V. McWUrter, 229 U. S., 265; Schweig v. Chicago, M. & St. P. 
 Ry. Co., 205 Fed., 96; Osborne's AdmW. v. Cincinnati, N. 0. <Sb 
 T. P. Ry. Co., 164 S. W., 818. 
 
 — (a). But if all the facts necessary to bring an action for personal 
 injury within the purview of either of the Acts are stated in the 
 declaration, it is immaterial that the statute itself is not described 
 in terms therein. 
 Voelker v. Chicago, M. cSs St. P. Ry. Co., 116 Fed., 867. 
 
 Circuit Court, Northern District of Iowa, June 16, 1902. 
 As matter of pleading, it certainly can not be said that in 
 order to base a right of recovery on the provisions of the statute 
 it was necessary to cite the statute or its provisions in the peti- 
 tion. * * * It was not necessary, nor, indeed, permissible, 
 under the rules of pleading that the petition should set forth the 
 law which had been violated.— ^S^iras, D. J., p. 871. 
 Missouri Pacific Ry. Co. v. BrinJcmeier, 93 Pac, 621. 
 Supreme Court of Kansas, April 6, 1907. 
 
 It is unnecessary to specifically mention this Act of Congress 
 in a cause of action predicated thereon. It is sufficient if the 
 pleading contains facts which would suggest to a person familiar 
 with such Act that its provisions had been violated. — Graves, 
 J., p. 622. 
 
232 ACTIONS FOR PERSONAL INJURY. 
 
 Allen V. Tuscarora Valley R. Co., 78 Atl., 34. See also Grand Trunk 
 Western Ry Co. v. Lmdsey, 233 V. S., 42. But see Lewis v. 
 Pennsylvania R. Co., 69 Atl., 821. 
 
 10. Irrespective of any statute, it is the duty of carriers to provide 
 reasonably safe appliances and tools and to promulgate and 
 enforce efficient rules in the furtherance of the safety of employees : 
 Winller v. PUladelpMa cfc R. Ry. Co., 53 Atl., 90. 
 Superior Court of Delaware, June 10, 1912. 
 
 It is the duty of the master to provide for his employees a 
 reasonably safe place in which to work and reasonably safe tools 
 and apphances with which to work, and also to keep them in a 
 reasonably safe condition. The place, tools and macninery need 
 not be of the best, nor of the latest pattern, nor of the most 
 improved kind, but must be reasonably safe and adapted to the 
 purpose for which the;y are to be used. If the master fails to 
 perform his duty, and injury results from such failure alone, he 
 18 liable. It is the duty of the master to make, promulgate, and 
 enforce proper rules for the government of his business where it is 
 so large or complicated as to make his supervision impracticable. — 
 Lore, Ch, J., p. 91. 
 
 — (a). But the mere promulgation of such rules without their enforce- 
 ment, will not protect a carrier from liability under a mandatory 
 statute. 
 
 Burlio V. Minneapolis & St. L, Ry. Co., 141 N. W., 300. 
 Supreme Court of Minnesota, May 9, 1913. 
 
 It is plain that the promulgation of rules, which are allowed 
 to remain unenforced and dormant until invoked as a shield in a 
 lawsuit, is then to be given scant consideration, and will not 
 serve to protect from liability for failure to comply with a man- 
 datory statute. — Holt, J., p. 303. 
 
 Popplar V. Minneapolis, St. P. c& S. S. M. Ry. Co., 141 N. W., 798. 
 Supreme Court of Minnesota, May 23, 1913. 
 
 Ordinarily the violation by an employee of a rule of the 
 employer, made for the protection of employees, constitutes 
 negligence per se. But this doctrine is not an absolute one. It 
 yields to practical necessity, [88 N. W., 974; 131 N. W., 329.] 
 If the employer has himself failed to comply with some require- 
 ment of law and such failure makes it impossible for the employee 
 to do his work in the usual way, this may excuse him in the viola- 
 tion of such a rule. It does excuse him if he follows a method of 
 doing the work which is the only method reasonably practicable 
 under these circumstances, or which is a method wluch a reason- 
 ably prudent man would follow. — HaUam, J., p. 800. 
 
 See also Sprague v. Wisconsin Central Ry. Co., 116 N. W., 104; 
 Prady v. Kansas aty, St. L. <& C. R. Co., 102 S. W., 978; St 
 Louis I. M. <^ S. Ry.^Co. v. York, 123 S.W., 376; Yost v. Union 
 Pacific R. Co., 149 S. W., 577; Thomhro v. Kansas City, M. & 0. 
 Ry. Co., ir9 Pac, 410. See also TJ. 8. v. Illinois Central R. Co., 
 180 Fed., 630; SUams v. Chicago, R. /. cfe P. Ry. Co., 148 N. W., 
 128. 
 
GENEEAL RULES OF LAW. 233 
 
 11. Where one of the grounds in a motion for a new trial is that 
 
 the amount of the verdict is excessive, and the trial court has 
 denied snch motion, an appellate court, in passing upon an as- 
 signment of error based thereon, will not disturb the verdict on 
 such grounds, unless the verdict is such as to shock its judicial 
 conscience or as to indicate that the jury must have been unduly 
 influenced in some way, or swayed by bias, prejudice, or passion. 
 Atlantic Coast Line R. Co. v. WJiitneyj 61 So., 179. 
 
 12. In an action for personal injuries based upon a violation of the 
 federal Safety Appliance Acts, evidence of such injury sustained 
 by reason of the defendant's use in interstate commerce of cars 
 so defective as to be incapable of being coupled without some 
 one going between them establishes a prima facie case, even 
 though the precise nature of the defect is not disclosed. 
 
 Norfollc c& W. R. Co. v. Eazelrigg, 184 Fed., 828. 
 
 13. Where the declaration in an action for personal injuries alleges 
 that defendant was at the time of the accident engaged in operat- 
 ing a train in interstate commerce, and that plaintiff was em- 
 ployed by defendant in such operation, it will be inferred, after 
 verdict, that the train was moved by defendant, although not 
 so alleged in terms. 
 
 Grand Trunk Ry. Co, v. Lindsay, 201 Fed., 836. 
 
 14. The Acts are intended, not to increase the difficulty of securing 
 compensation for injuries sustained by reason of defective appliances, 
 but to decrease the number of instances in which such injuriei 
 occur. 
 
 Chicago, R. L & P, Ry. Co. v. Br<mn, 185 Fed., 80. 
 
APPENDIX. 
 
 Federal Safety Appliance, Hours of Service, and Ash Pan Acts, 
 
 with pertinent excerpts from other statutes — Orders and 
 
 Administrative Rulings of the Interstate Commerce 
 
 Commission — Index. 
 
 235 
 
THE SAFETY APPLIANCE ACTS. 
 
 Act of March 2, 1893 [27 Stat, at L., 631], as amended by 
 Act of AprU 1, 1896 [29 Stat, at L., 86]. 
 
 AN ACT To promote the safety of employees and travelers upon 
 railroads by compelling common carriers engaged in interstate 
 commerce to equip their cars with automatic couplers and con- 
 tinuous brakes and their locomotives with driving-wheel brakes, 
 and for other purposes. 
 
 Be it enacted hy the Senate and House of Representatives 
 of the United States of America in Congress assembled, 
 That from and after the first day of January, eighteen ^^riv^-^whwi 
 hundred and ninety-eight, it shall be unlawful for any 
 common carrier engaged in interstate commerce by rail- 
 road to use on its line any locomotive engine in moving 
 interstate traffic not equipped with a power driving- 
 wheel brake and appliances for operating the train-brake 
 system, or to run any train in such traffic after said date 
 that has not a sufficient number of cars in it so equipped 
 with power or train brakes that the engineer on the loco- 
 motive drawing such train can control its speed without 
 requiring brakemen tb use the common hand brake for 
 that purpose. 
 
 Sec. 2. That on and after the first day of January, ^^pf^o "»»**«» 
 eighteen hundred and ninety-eight, it shall be unlawful 
 for any such common carrier to haul or permit to be 
 hauled or used on its line any car used in moving inter- 
 state traffic not equipped with couplers coupling auto- 
 matically by impact, and which can be uncoupled without 
 the necessity of men going between the ends of the cars. 
 
 Sec. 3. That when any person, firm, company, or corpo- mr^Spfi^??- 
 ration ens^aged in interstate commerce by railroad shall ^"se to receive 
 
 ^ o J cars from connect* 
 
 have equipped a sufficient number of its cars so as to com- ^^ "^es or ship- 
 ply with the provisions of section one of this Act, it may 
 lawfully refuse to receive from connecting lines of road or 
 shippers any cars not equipped sufficiently, in accordance 
 with the first section of this Act, with such power or train 
 brakes as will work and readily interchange with the 
 brakes in use on its own cars, as required by this Act. 
 
 Sec. 4. That from and after the first day of July, eight- h^SSiid??'' ^^ 
 een hundred and ninety-five, until otherwise ordered by 
 
 237 
 
238 SAFETY APPLIANCE ACTS. 
 
 the Interstate Commerce Commission, it shall be unlawful 
 for any railroad company to use any car in interstate 
 commerce that is not provided with secure grab irons or 
 handholds in the ends and sides of each car for greater 
 security to men in coupling and uncoupling cars. 
 h tiht* ^t^Arl^ ^^^' ^' ^^^^ within ninety days from the passage of this 
 bars for freight Act the American Railway Association is authorized 
 
 cars. . "^ 
 
 hereby to designate to the Interstate Commerce Commis- 
 sion the standard height of drawbars for freight cars, 
 measured perpendicular from the level of the tops of the 
 rails to the centers of the drawbars, for each of the several 
 gauges of railroads in use in the United States, and shall 
 fix a maximum variation from such standard height to be 
 allowed between the drawbars of empty and loaded cars. 
 Upon their determination being certified to the Interstate 
 Commerce Commission, said Commission shall at once 
 give notice of the standard fixed upon to aU common car- 
 riers, owners, or lessees engaged In interstate commerce in 
 the United States by such means as the Commission may 
 deem proper. But should said Association fail to d(^ter- 
 mine a standard as above provided, it shaU be the duty 
 of the Interstate Commerce Commission to do so, before 
 July first, eighteen hundred and ninety-four, and imurne- 
 diately to give notice thereof as aforesaid. And after July 
 first, eighteen hundered and ninety-five, no cars, either 
 loaded or unloaded, shall be used in interstate traffic which 
 do not comply with the standard above provided for. 
 
 Penalty. Sec. 6. [As amended April i, 1896] That any such 
 
 common carrier using any locomotive engine, running any 
 train, or hauling or permitting to be hauled or used on its 
 line any car in violation of any of the provisions of this 
 Act, shall be hable to a penalty of one hundred dollars for 
 each and every such violation, to be recovered in a suit or 
 suits to brought by the United States district attorney 
 in the district court of the United States having jurisdic- 
 tion in the locahty where such violation shall have been 
 committed ; and it shall be the duty of such district attor- 
 ney to bring such suits upon duly verified information 
 being lodged with him of such violation having occurred; 
 and it shall also be the duty of the Interstate Commerce 
 Commission to lodge with the proper district attorneys in- 
 formation of any such violations as may come to its knowl- 
 
 Exoeptions. edge : Provided, That nothing in this Act contained shall 
 apply to trains composed of four-wheel cars or to trains 
 composed of eight-wheel standard logging cars Where the 
 
AMEITOMENT OF 1896— ACT OF 1903. 239 
 
 height of such car from top of rail to center of coupUng 
 does not exceed twenty-five inches, or to locomotives used 
 in hauling such trains when such cars or locomotives are 
 exclusively used for the transportation of logs. 
 
 Sec. 7. That the Interstate Commerce Commission may gtfte'^^^^S'er^ 
 from time to time upon full hearing and for good cause J'^SSf'^ttae o° 
 extend the period within which any common carrier shall ^^^^Yth this xStl 
 comply with the provisions of this Act. 
 
 Sec. 8. That any employee of any such common carrier ^J^Pj^yj®^ "^J 
 who may be injured by any locomotive, car, or train in use JS^mwit.'*' ®™' 
 contrary to the provision of this Act shall not be deemed 
 thereby to have assumed the risk thereby occasioned, 
 although continuing in the employment of such carrier 
 after the unlawful use of such locomotive, car, or train 
 had been brought to his knowledge. 
 
 Act of March 2, 1903 [32 Stat, at L., 943]. 
 AN ACT To amend an Act entitled "An Act to promote the safety 
 of employees and travelers upon railroads by compelling common 
 carriers engaged in interstate commerce to equip their cars with 
 automatic couplers and continuous brakes and their locomotives 
 with driving-wheel brakes, and for other purposes," approved 
 March second, eighteen hundred and ninety-three, and amended 
 April first, eighteen hundred and ninety-six. 
 
 Be it enacted by the Senate and House of Representa- 
 tives of the United States of America in Congress assem- 
 bled, That the provisions and requirements of the Act en-an(»ActofMar^ 
 titled *'An Act to promote the safety of employees andbyAcTo^^pr.i, 
 travelers upon railroads by compelling common carriers in Tei^itOTie?MjJ 
 
 !•.,., . • J.-L • 'xT- District of Colum- 
 
 engaged m mterstate commerce to equip theu* cars withbia. 
 automatic couplers and continuous brakes and their loco- safetjT App1ianc« 
 motives with driving-wheel brakes, and for other pur- pieS Saif apply 
 poses, '^ approved March second, eighteen hundred andcoup???s\r« 
 ninety-three, and amended April first, eighteen hundred ^^^ '*°^^* ^' 
 and ninety-six, shall be held to apply to common carriers 
 by railroads in the Territories and the District of Co- 
 lumbia and shall apply in all cases, whether or not the 
 couplers brought together are of the same kind, make, or 
 type ; and the provisions and requirements hereof and of 
 said Acts relating to train brakes, automatic couplers, grab ancf ^Acts^^aii 
 irons, and the height of 'drawbars shall be held to apply IqPJ'ip^niVnfJf 
 to all trains, locomotives, tenders, cars, and similar ve- |S|ed ^lL°^?nterI 
 hicks used on any railroad engaged in interstate com-^'**^®*^°"°^®'"°®' 
 merce, and in the Territories and the District of Colum- 
 bia, and to aU other locomotives, tenders, cars, and similar 
 vehicles used in connection therewith, excepting those Exceptions. 
 
240 SAFETY APPLIANCE ACTS. 
 
 trains, cars, and locomotives exempted by the provisions 
 of section six of said Act of March second, eighteen hun- 
 dred and ninety-three, as ameaded by the Act of April 
 first, eighteen hmidred and ninety-six, or which are used 
 upon street railways. 
 
 Sec. 2. That whenever, as provided in said Act, any 
 train is operated with power or train brakes, not less than 
 fifty per centum of the cars in such train shall have their 
 brakes used and operated by the engineer of the locomo- 
 tive drawing such train; and all power-braked cars in 
 such train which are associated together with said fifty 
 per centum shall have their brakes so used and operated; 
 and, to more fully carry into effect the objects of said Act, 
 Com mission the Interstate Commerce Commission may, from time to 
 
 may increase . e ^ ■,% i • • . . 
 
 minimum per- tmic, after luU hearing, increase the minimum percentage 
 
 •entage of power ' . • • i i i • i 
 
 or trato brake of cars in any train required to be operated with power or 
 
 cars to be used. ^ t. r r 
 
 train brakes which must have their brakes used and oper- 
 ated as aforesaid; and failure to comply with any such 
 requirement of the said Interstate Commerce Commission 
 Penalty. shall be subject to the like penalty as failure to comply 
 with any requirement of this section. 
 
 Sec. 3. That the provisions of this Act shall not take 
 effect until September first, nineteen hundred and three. 
 Nothing in this Act shall be held or construed to relieve 
 any common carrier, the Interstate Commerce Commis- 
 sion, or any United States district attorney from any of 
 the provisions, powers, duties, liabilities, or requirements 
 of said Act of March second, eighteen hundred and ninety- 
 three, as amended by the Act of April first, eighteen hun- 
 powera7dutiM,re^ dred and ninety-six; and all of the provisions, powers, du- 
 uabiiSS 'speci- tics, requirements, and liabilities of said Act of March sec- 
 5^. 2^1893,^ and ond, eighteen hundred and ninety- three, as amended by 
 1^, apply fo^his the Act of April first, eighteen hundred and ninety-six, 
 ^^' shall, except as specifically amended by this Act, apply to 
 
 this Act. 
 
 Act of April 14, 1910 [36 Stat, at L., 298]. 
 AN ACT To supplement "An Act to promote the safety of em- 
 ployees and travelers upon railroads by compelling common car- 
 riers engaged in interstate commerce to equip their cars with auto- 
 matic couplers and continuous brakes and their locomotives with 
 driving-wheel brakes and for other purposes," and other safety 
 appliance Acts, and for other purposes. 
 
 Be it enacted hy the Senate and House of Representa- 
 tives of the United States of America in Congress assem- 
 
ACT OF 1910. 241 
 
 Ued, That the provisions of this Act shall apply to rJg^app&i?'' 
 every common carrier and every vehicle subject to the 
 Act of March seeond, eighteen hundred and ninety-three, 
 as amended April first, eighteen hundred and ninety-six, 
 and March second, nineteen hundred and three, com- 
 monly known as the " Safety Appliance Acts.*' 
 
 Sec. 2. That on and after July first, nineteen hundred cars to b* 
 and eleven, it shall be unlawful for any common carrier Hi steps, hand 
 subject to the provisions of this Act to haul, or permit to running board*; 
 be hauled or used on its line any car subject to the pro- 
 visions of this Act not equipped with appliances provided 
 for in this Act, to wit: All cars must be equipped with 
 secure sill steps and efficient hand brakes; all cars re- 
 quiring secure ladders and secure running boards shall 
 be equipped with such ladders and running boards, and 
 all cars having ladders shall also be equipped with 
 secure hand holds or grab irons on their roofs at the tops 
 of such ladders : Provided, That in the loading and haul- 
 ing of long commodities, requiring more than one car, 
 the hand brakes m.ay be omitted on all save one of the 
 cars while they are thus combined for such purpose. 
 
 Sec. 3. That within six months from the passage of, commission to 
 
 r fe to designate num- 
 
 this Act the Interstate Commerce Commission, after hear- ?®^' dimensions. 
 
 ' location, and 
 
 mg, shall designate the number, dimensions, location, and^J^®^^' |pp}}; 
 manner of application of the appliances provided for by*^**^- 
 section two of this Act and section four of the Act of 
 March second, eighteen hundred and ninety-three, and 
 shaU give notice of such designation to all common car- 
 riers subject to the provisions of this Act by such m.eans 
 as the Commission may deem proper, and thereafter said 
 number, location, dimensions, and manner of application 
 as designated by said Commission shaU remain as the 
 standards of equipment to be used on all cars subject to 
 the provisions of this Act, unless changed by an order of 
 said Interstate Commerce Commission, to be made after 
 fuU hearing and for good cause shown; and failure to 
 comply with any such requirement of the Interstate Com- 
 merce Commission shall be subject to a like penalty as 
 failure to comply with any requirement of this Act: Pro- ^®"«* ^ ««*- 
 vided, That the Interstate Commerce Commission may, ®^^®^***- 
 upon full hearing and for good cause, extend the period 
 within which any common carrier shall comply with the 
 provisions of this section with respect to the equipment 
 of cars actually in service upon the date of the passage 
 50611—15 ^16 
 
242 SAFETY APPLIANCE ACTS. 
 
 may*^™©*"!?? ^^ *'^^^ ^^^- ^^^^ Commission is hereby given authority, 
 he^t of draw- ^f ter hearing, to modify or change, and to prescribe the 
 standard height of drawbars and to fix -the time within 
 which such modification or change shall become effective 
 ard^"}ght^of fl-iid obfigatory, and prior to the time so fixed it shall be 
 drawbars legal, unlawful to usc any Car or vehicle in interstate or foreign 
 traffic which does not comply with the standard now 
 fixed or the standard so prescribed, and after the time so 
 fixed it shall be unlawful to use any car or vehicle in 
 interstate or foreign traffic which does not comply with 
 the standard so prescribed by the Commission. 
 Penalty. Sec. 4. That any common carrier subject to this Act 
 
 using, hauling, or permitting to be used or hauled on its 
 line any car subject to the requirements of this Act not 
 equipped as provided in this Act, shall be liable to a 
 penalty of one hundred dollars for each and every such 
 violation, to be recovered as provided in section six of the 
 Act of March second, eighteen hundred and ninety-three, 
 as amended April first, eighteen hundred and ninety-six: 
 may \iQh&n}Qd to Provided, That where any car shall have been properly 
 repair point. equipped, as provided in this Act and the other Acts men- 
 tioned herein, and such equipment shall have become de- 
 fective or insecure while such car was being used by such 
 carrier upon its line of railroad, such car may be hauled 
 from the place where such equipment was first discovered 
 to be defective or insecure to the nearest available point 
 where such car can be repaired, without liability for the 
 penalties imposed by section four of this Act or section six 
 of the Act of March second, eighteen hundred and ninety- 
 three, as amended by the Act of April first, eighteen hun- 
 dred and ninety-six, if such movement is necessary to 
 make such repairs and such repairs can not be made ex- 
 uevedfromiiabii-cept at such repair point; and such movement or hauling 
 iSu^'^ ^^*^ °^ of such car shall be at the sole risk of the carrier, and noth- 
 ing in this section shall be construed to relieve such carrier 
 from liability in any remedial action for the death or 
 injury of any railroad employee caused to such employee 
 by reason of or in connection with the movement or haul- 
 ing of such car with equipment w hich is defective or inse- 
 cure or which is not maintained in accordance with the 
 requirements of this Act and the other Acts herein re- 
 Hauiing by f erred to; and nothing in this proviso shall be construed 
 to permit the hauling of defective cars by means of chains 
 instead of drawbars, in revenue trains or in association 
 with other cars that are commercially used, unless such 
 defective cars contain live stock or "perishable" freight. 
 
ACT OF 1910— SUNDEY CIVIL ACTS. 243 
 
 Sec. 5. That except that, within the limits specified in lievS^ISm^pen- 
 the preceding section of this Act, the movement of a carJ'*^'sg®g*^^*o?e 
 with defective or insecure equipment may be made with- ^™«i- 
 out incurring the penalty provided by the statutes, but 
 shall in all other respects be unlawful, nothing in this Act 
 shall be held or construed to relieve any common carrier, 
 the Interstate Commerce Commission, or any United 
 States attorney from any of the provisions, powers, du- 
 ties, liabilities, or requirements of said Act of March 
 second, eighteen hundred and ninety-three, as amended 
 by the Acts of April first, eighteen hundred and ninety-six, 
 and March second, nineteen hundred and three ; and, ex- 
 cept as aforesaid, all of the provisions, powers, duties, re- 
 quirements, and liabilities of said Act of March second, 
 eighteen hundred and ninety-three, as amended by the 
 Acts of April first, eighteen hundred and ninety-six, and 
 March second, nineteen hundred and three, shall apply to 
 this Act. 
 
 Sec. 6. That it shall be the duty of the Interstate Com- Enforcement, 
 merce Commission to enforce the provisions of this Act, 
 and all powers heretofore granted to said Commission are 
 hereby extended to it for the purpose of the enforcement 
 of this Act. 
 
 Excerpt from the Sundry Civil Act of March 4, 1911 [36 Stat, 
 at L., 1397]. 
 
 That the jurisdiction of the Interstate Commerce Cora- j^Jy<* ™^™^8^|^, 
 mission to extend the period within which any common piemStor^^Acr 
 carrier shall comply with the provisions of section three 
 of the Act entitled, "An Act to supplement 'An Act to 
 promote the safety of employees and travelers upon 
 railroads by compelling common carriers engaged in 
 interstate commerce to equip their cars with automatic 
 couplers and continuous brakes and their locomotives 
 with driving-wheel brakes, and for other purposes,' and 
 other safety-appliance Acts, and for other purposes," ap- 
 proved April fourteenth, nineteen hundred and ten, shall 
 apply to cars actually placed in service between the date 
 of the passage of said Act and the first day of July, nine- 
 teen hundred and eleven, in the same manner and to the 
 same extent that it applies to cars actually in service upon 
 the date of the passage of said Act. 
 
 The Interstate Commerce Commission is authorized by the Sundry Civil Act of June 
 28, 1902 132 Stat, at L., 444], to employ "inspectors to execute and enforce the require- 
 ments of the Safety Appliance Acts." 
 
ORDERS OF THE INTERSTATE COMMERCE COMMISSION. 
 Order of June 6, 1010, In re Minimum Percentage of Power Brakes. 
 
 The Commission having under consideration the question of 
 requiring an increase in the minunum percentage of power brakes 
 to be used and operated on trains and railroads engaged in inter- 
 state commerce, as provided by section 2 of the Act of Marcli 2, 
 1903, and it appearing to the Commission after full hearing had 
 on May 5, 1909, due notice of which was given all common carriers, 
 owners, and lessees engaged in interstate commerce by railroads in 
 the United States, and at which time all interested parties were 
 given an opportunity to be heard and submit their views, that to 
 more fully secure the objects of the Act to promote the safety of 
 employees and travelers on railroads, the minimum percentage of 
 power-brake cars to be used in trains, as established by its order 
 of November 15, 1905, should be further increased: 
 
 It is ordered, That on and after September 1, 1910, on all railroads 
 used in interstate commerce, whenever, as required by the Safety 
 Appliance Act as amended March 2, 1903, any train is operated 
 with power or train brakes, not less than 85 per cent of the cars 
 of such train shall have their brakes used and operated by the engi- 
 neer of the locomotive drawing such train, and all power-brake cars 
 in every such train which are associated together with the 85 per 
 cent shall have their brakes so used and operated. 
 
 Order of October 10, 1910, In re Standard Height of Drawbars. 
 
 Whereas, by the tliird section of an Act of Congress approved 
 April 14, 1910, entitled ''An Act to supplement 'An Act to promote 
 the safety of employees and travelers upon railroads by compelling 
 common carriers engaged in inteistate commerce to equip their cars 
 with automatic couplers and continuous brakes and their locomo- 
 tives with driving-wheel brakes and for other purposes/ and other 
 safety appliance Acts, and for other puiposes," it is provided, among 
 other things, that the Interstate Commerce Commission is hereby 
 given authority ,^ after hearing, to modify or change and to prescribe 
 the standard height of drawbars and to fix the time within which 
 such modification or change shall become effective and obligatory; 
 and 
 
 Whereas, a hearing in the matter of any modification or change 
 in the standard height of drawbars was held before the Interstate 
 244 
 
OEDERS AND ADMINISTEATIVE ETJIHrGS. 245 
 
 Commerce Commission at its office ia Washington, D. C, on June 
 7, 1910: 
 
 Now, therefore, in pursuance of and in accordance with the pro- 
 visions of said section 3 of said Act, 
 
 It is ordered, That (except on cars specified in the proviso in 
 section 6 of the Safety Appliance Act of March 2, 1893, as the same 
 was amended April 1, 1896), the standard height of drawbars here- 
 tofore designated in compliance with law is hereby modified and 
 changed in the manner hereinafter prescribed, to wit: The maximum 
 height of drawbars for freight cars measured perpendicularly from 
 the level of the tops of rails to the centers of drawbars for standard- 
 gauge railroads in the United States subject to said Act shall be 
 34^ inches, and the minimum height of drawbars for freight cars 
 on such standard-gauge railroads measured in the same manner 
 shall be 31i inches, and on narrow-gauge railroads in the United 
 States subject to said Act the maximum height of drawbars for 
 freight cars measured from the level of the tops of rails to the cen- 
 ters of drawbars shall be 26 inches, and the minimum height of 
 drawbars for freight cars on such narrow-gauge railroads measured 
 in the same manner shall be 23 inches, and on 2-foot-gauge railroads 
 in the United States subject to said Act the maximum height of 
 drawbars for freight cars measured from the level of the tops of 
 rails to the centers of drawbars shall be 17i inches, and the mini- 
 mum height of drawbars for freight cars on such 2-foot-gauge rail- 
 roads measured in the same manner shall be 14^ inches. 
 
 And it is further ordered, That such modification or change shall 
 become effective and obligatory December 31, 1910. 
 
 ADMINISTBATIVE RULING OF THE INTERSTATE COMMERCE 
 
 COMMISSION. 
 
 May 4, 1908, No. 67; Handholds on Passenger Cars, — The law 
 makes no distinction between passenger and freight cars, and hand- 
 holds must therefore be placed on the ends of passenger cars and 
 cabooses. 
 
THE HOUES OF SERVICE ACT. 
 
 Act of March 4, 1907 [34 Stat, at L., 1415]. 
 
 AN ACT To promote the safety of employees and travelers upon rail- 
 roads by limiting tlie hours of service of employees thereon. 
 
 Be it enacted by the Senate and House of Representatives 
 
 of the United States of America in Congress assembled^ 
 
 Common car- That the provisions of this Act shall apply to any comit] on 
 
 tiers and em- . '■ . \ • m i i 
 
 pioyees subject carrier or carriers, their oincers, agents, and employees, 
 engaged in the transportation of passengers or property 
 by railroad in the District of Columbia or any Territory 
 of the United States, or from one State or Territory of 
 the United States or the District of Columbia to any 
 other State or Territory of the United States or the Dis- 
 trict of Columbia, or from any place in the United States 
 to an adjacent foreign country, or from any place in the 
 United States through a foreign country to any other 
 
 term* "raiSdd/' P^*^® in the United States. The term " railroad " as used 
 in this Act shall include all bridges and ferries used or 
 operated in connection with any railroad, and also all the 
 road in use by any common carrier operating a railroad, 
 whether owned or operated under a contract, agreement, 
 
 term**e°mp!oy-^^ lease; and the term ''employees'' as used in this Act 
 
 ®«*" shall be held to mean persons actually engaged in or con- 
 
 nected with the movement of any train. 
 
 Sec. 2. That it shall be unlawful for any common car- 
 rier, its officers or agents, subject to this Act to require or 
 permit any employee subject to this Act to be or remain 
 sixteen ^^urs on duty for a longer period than sixteen consecutive 
 
 continuous serv-^ours, and whcncvcr any such employee of such common 
 
 ice of trainmen. ' "^ , i i * - 
 
 carrier shall have been continuously on duty for sixteen 
 hours he shall be relieved and not required or permitted 
 Ten j^^^^^g again to go on duty until he has had at least ten consecu- 
 duty. tive hours off duty; and no such employee who has been 
 
 on duty sixteen hours in the aggregate in any twenty-four- 
 hour period shall be required or permitted to continue or 
 again go on duty without having had at least eight con- 
 te1??iftph^ndsecutive hours off duty: Provided, That no operator, train 
 teig)hone opera- ^^^^^j^^^^^ ^^ ^^^^^ employee who by the use of the tele- 
 
 246 
 
ACT OF 1907. 247 
 
 graph or telephone dispatches, reports, transmits, re- 
 ceives, or delivers orders pertaining to or afiFecting train 
 movements shall be required or permitted to be or remain 
 on duty for a longer period than nine hours in any twenty- 
 four-hour period in all towers, oflBces, places, and stations 
 continuously operated night and day, nor for a longer 
 period than thirteen houre in all towers, offices, places, 
 and stations operated only during the daytime, except in 
 case of emergency, when the employees namied in this 
 proviso may be permitted to be and remain on duty for 
 four additional hours in a twenty-four-hour period on not 
 exceeding three days in any week: Provided further, The^j^^o^J^^^l^^on 
 Interstate Commerce Commission may after full hearing p®"^- 
 in a particular case and for good cause shown extend the 
 period within which a common carrier shall comply with 
 the provisions of this proviso as to such case. 
 
 Sec. 3. That any such common carrier, or any officer ^«°***y- 
 or ag nt thereof, requiring or permitting any employee 
 to go, be, or remain on duty in violation of the second 
 section hereof, shall be liable to a penalty of not to 
 exccc d five hundred dollars for each and every violation, 
 to bo recovered in a suit or suits to be brought by the 
 United States district attorney in the district court of ^"***^"°°*- . 
 the United States having jurisdiction in the locafity where 
 such violation shall have been committed; and it shall be 
 the duty of such district attorn<^ y to bring such suits upon 
 satisfactory information being lodged with him; but no 
 such suit shall be brought after the expiration of one 
 year from the date of such violation; and it shall also be 
 the duty of the Interstat" Commrrce Commission to lodge ^ 
 with the proper district attorneys information of any such 
 violations as may come to its knowledge. In all prose- 
 cutions under this Act the common carrier shall be deemed 
 to have had knowl dge of aU acts of all its officers and 
 agents: Provided, That the provisions of this Act shall not acSSents'etc^^* 
 apply in any case of casualty or unavoidable accident or 
 the act of God; nor where the d< lay was the result of a 
 cause not known to the carri- r or its officer or agent in 
 charge of such employee at the time said employee left 
 a terminal, and which could not have been foreseen: 
 Provided Jurther, That th^^ provisions of this Act shall not crZl * ^ '^ * "" « 
 apply to the crews of wrecking or relief trains. 
 
 Sec. 4. It shall be the duty of the Interstate Commerce Enforcement. 
 Commission to execute and enforce the provision of this 
 
248 HOTTES OF SEEVICE ACT. 
 
 Act, and all powers granted to the Interstate Commerce 
 Commission are hereby extended to it in the execution 
 of this Act. 
 
 Sec. 5. That this Act shall take effect and be in force 
 one year after its passage. 
 
 Excerpt from Section 20 of the Act [to regulate commerce] of 
 February 4, 1887 [24 Stat, at L., 3791, as amended June 29, 
 1906 [34 Stat, at L., 684], and June 18, 1910 [36 Stat, at L., 
 639]. 
 
 Said detailed reports shall contain all the required sta- 
 tistics for the period of twelve months ending on the 
 thirtieth day of June in each year, or on the thirty-first 
 day of December in each year if the Commission by order 
 substitute that period for the year ending Jmie thirtieth 
 and shall be made out under oath and filed with the 
 Commission at its office in Washington within three 
 months after the close of the year for which the report is 
 made, unless additional time be granted in any case by 
 the Commission; and if any carrier, person, or corpora- 
 tion subject to the provisions of this Act shall fail to make 
 and file said annual reports within the time above &peci- 
 fied, or within the time extended by the Commission, for 
 making and filing the same, or shaD fail to make specific 
 answer to any question authorized by the provisions of 
 this section within thirty days from the time it is lawfully 
 required so to do, such party shall forfeit to the United 
 States the sum of one hundred dollars for each and every 
 day it shall continue to be in default with respect thereto. 
 antoOTked^fo^JThe Commission shall also have authority by general or 
 qi^ro^perfcxiicai gpecial Orders to require said carriers, or any of them, to 
 file monthly reports of earnings and expenses, and to file 
 periodical or special, or both periodical and special, re- 
 ports concerning any matters about which the Commis- 
 sion is authorized or required by this or any other law to 
 inquire or to keep itself informed or which it is required 
 to enforce ; and such periodical or special reports shall be 
 under oath whenever the Commission so requires; and if 
 any such carrier shall fail to make and file any such 
 periodical or special report within the time fixed by the 
 Commission, it shall be subject to the forfeitures last 
 above provided. 
 
ORDERS OF THE INTERSTATE COMMERCE COMMISSION. 
 
 Order of June 28, 1911, In re Method and Form of Monthly Reports of 
 Hours of Service of Employees on Railroads Subject to the Act of March 4, 
 1907. 
 
 The method and form of monthly reports of hours of service of 
 employees upon railroads subject to the Act of March 4, 1907, having 
 been considered by the Commission: 
 
 It is ordered, That aU carriers subject to the provisions of the Act 
 entitled "An Act to promote the safety of employees and travelers 
 upon railroads by limiting the hours of service of employees thereon," 
 approved March 4, 1907, report within 30 days after the end of each 
 month, under oath, all instances where employees subject to said Act 
 have been on duty for a longer period than that provided in said Act. 
 
 It is further ordered. That the accompanying forms entitled ''Inter- 
 state Commerce Commission Hours of Service Keport," and the 
 method embodied in the instructions therein set forth, be, and the 
 same are hereby, adopted and prescribed; and all common carriers 
 subject to said Act are hereby notified to use and follow the said pre- 
 scribed forms and method in making monthly reports of hours of 
 service of employees on duty for a longer period than that named in 
 said Act, commencing with and making the first report for the month 
 of July, 1911. 
 
 And it is further ordered, That copies of said forms, together with 
 a copy of this order, be forthwith served upon all common carriers 
 subject to said Act. 
 
 Order of April 8, 1912, In re Alteration in the Method and Form of Monthly 
 Reports of Hours of Service of Employees on Railroads Subject to the 
 Act of March 4, 1907. 
 
 The matter of alteration in the method and form of monthly 
 reports of hours of service of employees upon railroads subject to the 
 Act of March 4, 1907, being under consideration: 
 
 It is ordered. That the accompanying forms entitled *' Interstate 
 Commerce Commission Hours of Service Report," and designated 
 as Form No. 1. — Oath and summary for use when there is excess 
 service; Form No. 8. — Oath for use when there is no excess service; 
 Form No. 2. — Employees on duty moro than 16 consecutive hours; 
 Form No. 3. — Employees returned to duty after 16 hours continuous 
 service, without 10 consecutive hours off duty; Form No. 4. — Em- 
 
 249 
 
250 HOURS OF SERVICE ACT. 
 
 ployees returned to duty, after aggregate service of 16 hours, without 
 8 consecutive hours off duty; Form No. 5. — Employees continued 
 on duty after aggregate service of 16 hours; Form No. 6. — Employees 
 at continuously operated day-and-night offices, who dispatch, r. port, 
 transmit, receive or deliver orders affecting train movements, and who 
 were on duty more than 9 hours in any 24-hour period ; Form No. 7. — 
 Employees at offices operated only during the daytime, or not to 
 exceed 13 hours in a 24-hour period, who dispatch, report, transmit, 
 receive, or deliver orders affecting train movements, and who are on 
 duty for a longer period than 13 hours in any 24-hour period; and 
 the method embodied in the instructions therein set forth, be, and 
 the same are hereby, adopted and prescribed; and all common 
 carriers subject to said Act are hereby notified to use and follow the 
 said prescribed forms and method in making monthly reports of 
 hours of service of employees on duty for a longer period than that 
 named in said Act, commencing with and making the first report for 
 the month of July, 1912. 
 
 Avd it is further ordered, That copies of said forms, together with a 
 copy of this order, be forthwith served upon all common carriers 
 subject to said Act. 
 
 ADMINISTRATIVE BUUNOS OF THE INTERSTATE COMMERCE 
 
 COMMISSION. 
 
 March 16, 1908. No. 287. General Interpretation of the 
 Hours of Service Act. — (a) The provisions of this Act apply to all 
 common carriers by railroad in the District of Columbia, or in any 
 Territory of the United States, or engaged in the movement of inter- 
 state or foreign traffic; and to aU employees of such common carriers 
 who are engaged in or connected with the movement of any train 
 carrying traffic in the District of Columbia, or in any Territory, or 
 carrying interstate or foreign traffic. [See Rule 56.] 
 
 (6) Sec. 2. The requirement for ten consecutive hours off duty 
 applies only to such employees as have been on duty for sixteen con- 
 secutive hours. The requirement for eight consecutive hours off 
 duty applies only to employees who have not been on duty sixteen 
 consecutive hours, but have been on duty sixteen hours in the aggre- 
 gate out of a twenty-four-hour period. Such twenty-four-hour 
 period begins at the time the employee first goes on duty after having 
 had at least eight consecutive hours off duty. The term "on duty" 
 includes all the time during which the employee is performing service, 
 or is held responsible for performance of service. An employee goes 
 *'on duty" at the time he begins to perform service or at which he 
 is required to be in readiness to perform service, and goes **off duty'* 
 at the time he is reheved from service and from responsibihty for 
 performance of service. [Qualified by Rule 74.] 
 
ADMINISTRATIVE EUIINGS. 251 
 
 (c) The Act does not specify the classes of employees that are 
 subject to its terms. All employees engaged in or connected with 
 the movement of any train as described in section 1 are within its 
 scope. Train dispatchers, conductors, engineers, telegraphers, fire- 
 men, brakemen, train baggagemen who, by rules of carriers, are 
 required to perform any duty in connection with the movement of 
 trains, yardmen, switch tenders, tower men, block-signal operators 
 etc., come within the provisions of the statute. [Quahfied by Rules 
 108 and 275. See also Rule 88.] 
 
 (d) The proviso in section 2 covers every employee who, by the 
 use of the telegraph or telephone, handles orders pertaining to or 
 affecting train movements. In order to preserve the obvious intent 
 of the law this provision must be construed to include all employees 
 who, by the use of an electrical ciu-rent, handle train orders or signals 
 which control movements of trains. [See Rule 88.] 
 
 (e) The prime purpose of this law is to secure additional safety by 
 preventing employees from working longer hours than those specified 
 in the Act. Therefore a telegraph or telephone operator who is 
 employed in a night and day office may not be required to perform 
 duty in any capacity or of any kind beyond nine hours of total service 
 in any twenty-four hour period. 
 
 (/) The phrase 'lowers, offices, places, and stations" is interpreted 
 to mean particular and definite locations. The purpose of the law 
 and of the proviso for nine hours of service may not be avoided by 
 erecting offices, stations, depots, or buildings in close proximity to 
 each other and operating from one a part of the day while the other is 
 closed, and vice versa. The statute is remedial in its intent and must 
 have a broad construction so that the purpose of the Congress may 
 not be defeated. 
 
 ig) The Commission interprets the phrase '' continuously operated 
 night and day'' as applying to all offices, places, and stations oper- 
 ated during a portion of the day and a portion of the night a total 
 of more than thirteen hours. 
 
 The phrase ** operated only during the daytime" refers to stations 
 which are operated not to exceed thirteen hours in a twenty-four- 
 hour period, and is not considered as meaning that the operator 
 thereat may be employed only during the daytime. 
 
 (h) The Act provides that operators employed at night and day 
 stations or at daytime stations may, in case of emergency, be required 
 to work four additional hours on not exceeding three days in any 
 week. Manifestly, the emergency must be real and one against which 
 the carrier can not guard. "Tn any week" is construed to mean in 
 any calendar week, beginning with Sunday. 
 
 (i) Sec. 3. The instances in which the Act will not apply include 
 only such occurrences as could not be guarded against; those which 
 involved no neglect or lack of precaution on the part of the carrier, 
 
262 HOURS OF SERVICE ACT. 
 
 its agents, or officers; and they serve to waive the application of the 
 law to employees on trains only until such employees, so delayed, 
 reach a terminal or relay point. [See Rule 88.] 
 
 'Casualty/' like its synonyms "accident" and ** misfortune, '* may 
 proceed or result from negU^ence or other cause known or unknown. 
 [Words and Phrases JvdidaUy Defined, vol. 2, 1003.] 
 
 ''Act of God." Any accident due to natural causes directly and 
 exclusively without human intervention, such as could not have been 
 prevented by any amount of foresight, and pains, and care reasonably 
 to have been expected. [Bouvier^s Law Dictionary, vol. 1, 79.] 
 
 (j) It will be noted that the penalties for violation of this Act are 
 against the "common carriers, or any officer or agent thereof, requir- 
 ing or permitting any employee to go, be, or remain on duty" in 
 violation of the law. It is clear that the officers and agents of car- 
 riers who are liable to the penalties provided in the Act are those 
 who have official direction or control of the employees; and that the 
 penalties do not attach to the employees who, subject to such super- 
 vision or control, perform the service prohibited. 
 
 (k) Sec. 4. To enforce this Act the Interstate Commerce Commis- 
 sion has all the powers which have been granted to it for the enforce- 
 ment of the Act to regulate commerce, including authority to appoint 
 employees, to require reports, to examine books, papers, and docu- 
 ments, to administer oaths, to issue subpoenas, and to interrogate 
 witnesses. 
 
 April 7, 1908. No. 56. Street Railways. — Upon inquiry whether 
 the Hours of Service Law applies to electric street car hues which are in- 
 terstate carriers: Held, That it applies to all railroads subject to the 
 provisions of the Act to regulate commerce, as amended, including 
 street railroads when ei^aged in interstate commerce. [See Rule 
 287.] 
 
 May 6, 1908, No. 74. Deadheading. — Employees deadheading 
 on passenger trains or on freight trains and not required to perform, 
 and not held responsible for the performance of, any service or duty 
 in connection with the movement of the train upon which they are 
 deadheading, are not while so deadheading "on duty" as that phrase 
 is used in the Act regulating the hours of labor. [See Rule 287-6.] 
 
 June 25, 1908. No. 88. Provisos in Sections 2 and 3. — (a) The 
 specific proviso [in section 2] of the law in regard to hours of service is: 
 
 "That no operator, train dispatcher, or other employee who by the 
 use of the telegraph or telephone dispatches, reports, transmits, re- 
 ceives, or delivers orders pertaining to or affecting train movements 
 shall be required or permitted to be or remain on duty for a longer 
 period than nine hours in any twenty-four-hour period in aU towers, 
 offices, places, and stations continuously operated night and day, nor 
 for a longer period than thirteen hours in all towers, offices, places, 
 and stations operated only during the daytine, except in case of 
 emergency, when the employees named in this proviso may be per- 
 mitted to be and remain on duty for four additional hours in a 
 twenty-four-hom- period or not exceeding three days in any week." 
 
ADMnnSTEATIVE RULINGS. 253 
 
 These provisions apply to employees in towers, offices, places, and 
 stations, and do not include train employees who, by the terms of the 
 law, are permitted to be or remain on duty sixteen hours consecu- 
 tively or sixteen hours in the aggregate in any twenty-four-hour 
 period, and who may occasionally use telegraph or telephone instru- 
 ments for the receipt or transmission of orders affectmg the move- 
 ment of trains. [See Rule 287.] 
 
 (h) Section 3 of the law provides [inter alia] that: 
 
 *^The provisions of this Act shall not apply in any case of casualty 
 or unavoidable accident or the act of God; nor where the delay was 
 the result of a cause not known to the carrier or its officer or agent in 
 charge of such employee at the time said employee left a terminal, 
 and which could not have been foreseen/' 
 
 Any employee so delayed may therefore continue on duty to the 
 terminal or end of that run. The proviso quoted removes the appli- 
 cation of the law to that trip. [See Rule 287.] 
 
 November 10, 1908. No. 108. Ferry Employees. The Hours of 
 Service Law does not apply to employees on a ferry, even though 
 the ferry be owned by a railroad company. The law applies to 
 employees connected with the movement of trains, and hence does 
 not embrace employees engaged only in the operation of a ferry. 
 This ruling does not apply to car ferries. [See Rule 287.] 
 
 Ajpril 4, 1910. No. 275. Train Baggagemen.- The provisions 
 of section 1 of the Hours of Service Law apply to train baggagemen 
 who are employees of the railway company and who are required by 
 the rules of the company to perform or to hold themselves in readi- 
 ness, when called upon, to perform any duty connected with the 
 movement of any train. [See Rules 74 a ad 287.] 
 
 February 12, 1912. No. 342. Use by Trainmen of the Tele- 
 graph OR Telephone. — A trainman required by the rules of the 
 carrier, in conjunction with his duties as trainmen, to send, receive, 
 or deliver orders affecting the movement of trains comes within 
 the proviso of section 2 of the Hours of Service Act, and therefore a 
 carrier may not require a trainman, who has been on duty longer 
 than the limit of time fixed for a telegraph or telephone operator, to 
 send, receive, or deUver orders affecting the movement of trains as 
 a part of the duties regularly assigned to him. 
 
 But upon inquiry whether the practice of requiring conductors of 
 trains delayed at stations where there is no regularly assigned tele- 
 graph or telephone operator on duty, and conductors of trains about 
 to be overtaken by superior trains, to telephone or telegraph the train 
 despatcher for instructions is in accord with the Act and with the 
 Commission's order of interpretation of June 25, 1908: Held, That 
 a trainmen who has been on duty for more than 9 hours or for more 
 than 13 hours is not prohibited from occasionally using the telegraph 
 or telephone to meet an emergency. 
 
THE ASH-PAN ACT. 
 Act of May 30, 1908 [35 Stat, at L., 476]. 
 
 AN ACT To promote the safety of employees on railroads. 
 
 Be it enacted hy the Senate and House of Representor- 
 
 tives of the United States of America in Congress assem- 
 
 Ash-pan equip. &ZecZ, That On and after the first day of January, nineteen 
 
 Stat© commerce. ' hundred and ten, it shall be unlawful for any common 
 carrier engaged in interstate or foreign commerce by rail- 
 road to use any locomotive in moving interstate or foreign 
 traffic, not equipped with an ash pan, which can be 
 dumped or erriptied and cleaned without the necessity of 
 any employee going under such locomotive. 
 
 m^?'^S^^Si^ Seo. 2. That on and after the first day of January, 
 
 tricfofSumbS"^^^^®^ hundred and ten, it shall be unlawful for any 
 common carrier by railroad in any Territory of the 
 United States or the District of Columbia to use any 
 locomotive not equipped with an ash pan, which can be 
 dumped or emptied and cleaned without the necessity 
 of any employee going under such locomotive. 
 Penalty. Seo. 3. That any such common carrier using any loco- 
 
 motive in violation of any of the provisions of this Act 
 shall be Hable to a penalty of two hundred dollars for 
 each and every such violation, to be recovered in a suit or 
 suits to be brought by the United States district attorney 
 in the district court of the United States having jurisdic- 
 tion in the locaUty where such violation shall have been 
 Enforoement. committed; and it shall be the duty of such district 
 attorney to bring such suits upon duly verified informa- 
 tion being lodged with him of such violation having oc- 
 curred; and it shall also be the duty of the Interstate 
 <^°iissionC!onmfierce Commission to lodge with the proper district 
 
 *^- attorneys information of any such violations as may 
 
 come to its knowledge. 
 
 to^m^ffl.^ Sec. 4. That it shall be the duty of the Interstate Com- 
 merce Commission to enforce the provisions of this Act, 
 and all powers heretofore granted to said Commission are 
 hereby extended to it for the purpose of the enforcement 
 of this Act. 
 254 
 
ACT OF 1908. 255 
 
 Sec. 5. That the term "common carrier" as used incj^^^^®^ ^' 
 this Act shall include the receiver or receivers or other 
 persons or corporations charged with the duty of the 
 management and operation of the business of a common 
 carrier. 
 
 Sec. 6. That nothing in this Act contained shall apply ig^^^s£.^y. 
 to any locomotive upon which, by reason of the use of 
 oil, electricity, or other such agency, an ash pan is not 
 necessary. 
 
INDEX. 
 
 Page. 
 
 *'A"and "B" ENDS OF CARS, defined 69 
 
 ABSOLUTE duty of carriers: 
 
 under Safety Appliance Acts — 10 
 
 not to be evaded by assignment 16 
 
 under Hours of Service Act Ill 
 
 ACCIDENT, Unavoidable, defined 160 
 
 See Actions for Personal Injury; Provisos 
 ACTIONS 
 
 in nature of actions in debt appropriate for recovery of penalties under 
 
 Safety Appliance Acts 20 
 
 Proceedings for recovery of penalties, civil: 
 
 under Safety Appliance Acts 19 
 
 under Hours of Service Act 116 
 
 for penalties not rendered criminal by payment of proceeds to Govern- 
 ment 20 
 
 ACTIONS FOR PERSONAL INJURY 
 
 Construction of Safety Appliance and Hours of Service Acts in 220 
 
 Violations of Safety Appliance Acts in, likewise violations in actions for 
 
 recovery of penalties 12, 24 
 
 ACT OF GOD 
 
 defined 162 
 
 not an excuse from statutory liability if resulting injury preventable by 
 
 foresight, pains and care 163 
 
 waives application of Hours of Service Act to operators 160 
 
 occurring after departure of crew from terminal suspends operation of 
 
 Hours of Service Act for given trip 165 
 
 ACTS 
 
 Digest of decisions under 
 
 Safety Appliance 1 
 
 Hours of Service 102 
 
 See Act to regulate commerce; Customs and Revenue Laws; Em- 
 ployers' Liability Acts; Pure Food and Drugs Acts; Twenty- 
 Eight Hour Law. 
 ACT TO REGULATE COMMERCE 
 
 not in pari materia with Safety Appliance Acts 22 
 
 Requirement of reports authorized by section 20 of 173 
 
 ACTUALLY USED 
 
 Couplers, must be operative of their own mechanism 71 
 
 Defective couplers need not be, to constitute a violation of Safety Appli- 
 ance x\cts 71 
 
 ADJACENT CARS, Employees not required to go around, over or under 
 
 cars to operate couplers by means of levers on opposite sides of 72 
 
 ADMINISTRATIVE RULINGS OF THE COMMISSION: 
 
 under the Hours of Service Act 260 
 
 under the Safety Appliance Act 245 
 
 50611—15 17 257 
 
258 INDEX. 
 
 Page. 
 
 AGENCIES, Regulation of interstate commerce comprehends regulation of its. 190 
 
 AGENCY: Decision of conductor as to disposition of defective car, in legal 
 
 effect, decision of carrier by which employed 16 
 
 AGENTS: See Officers and Agents. 
 
 AGREEMENT: See Trackage Agreement. 
 
 AIR BRAKES: See Power Brakes. 
 
 AIR HOSE, Coupling of, no part of coupling operation 74 
 
 AMBIGUITY, Hours of Service Act not unconstitutional by reason of 110 
 
 AMENDMENT of pleadings to bring within Safety Appliance Acts a case not 
 otherwise within their terms, averment of statutory cause of action in 
 which liability of defendant is greater than at common law 217 
 
 AMENDMENT OF 1903 designed to extend original Safety Appliance Act. . . 8 
 
 affirmative and declaratory of original Act 27 
 
 AMENDMENT OF 1910, Proviso in 
 
 declaratory of judicial interpretation of Safety Appliance Acts as pre- 
 viously amended 9T 
 
 has no retrospective application to prior violations 101 
 
 AMERICAN RAILWAY ASSOCIATION, Delegation to, of authority to 
 
 designate height of drawbars, constitutional 10 
 
 AMOUNTS of penalties under Hours of Service Act determinable by courts. . . 119 
 
 "ANY CAR " comprehends all cars running on rails 46 
 
 APPLIANCES, Common law duty of carriers to provide reasonably safe 232 
 
 See Safety Appliances. 
 
 AROUND, OVER OR UNDER cars, Employees not required to go, to operate 
 
 couplers by means of levers on opposite sides of adjacent cars 72 
 
 ARRANGEMENT: See Common Control, Management or Arrangement. 
 
 ASSIGNMENT, Duty of carriers under Acts not to be evaded by 16 
 
 "ASSOCIATED, " as used in Act of 1903, defined 65 
 
 ASSOCIATION with cars commercially used. Act of 1910 prohibits hauling 
 
 of defective cars in revenue trains or in 100 
 
 ASSUMPTION OF RISK: 
 
 abrogated by Safety Appliance Acts 221 
 
 defined and distinguished from contributory negligence 223 
 
 not to be charged under name of contributory negligence 223 
 
 presupposes knowledge of manner in which work is done 224 
 
 Working on defective cars, not 224 
 
 Continuance in service with knowledge of defects, not 225 
 
 Abrogation of, one penalty for violation of Safety Appliance Acts 24 
 
 AUTOMATIC BY IMPACT, Operation of couplers must be 75 
 
 AUTOMATIC COUPLERS: 
 
 not required between engines and tenders 70 
 
 Operation of, a proper subject for expert testimony 209 
 
 See Couplers. 
 
 "BAD ORDER CARD, " defined 26 
 
 "B" ENDS OF CARS, defined 69 
 
 BENEFICIENT, Safety Appliance Acts are 7 
 
 BRAKES: See Hand Brakes; Power Brakes. 
 
 BROKEN DRAWBARS not an excuse for excess service 170 
 
 BROKEN RAILS 
 
 not an excuse for excess service 169 
 
 Fatigue as truly a physical cause of accidents as 119 
 
INDEX. 259 
 
 BURDEN OF PROOF 
 
 on Government in actions nnder Acts 201 
 
 of negligence, on plaintiff in actions for personal injury 22ft 
 
 of contributory negligence, on defendants in such actions 22^ 
 
 CABOOSE CARS, Safety Appliance Acts apply to 47 
 
 CANAL ZONE, Provisions of Safety Appliance Acts extend to Panama 64 
 
 CARDS: See ''Bad Order Card;" "M. C. B. Defect Card." 
 CARRIERS 
 
 Duty of, under Safety Appliance Acts: 
 
 absolute 10 
 
 not to be evaded by assignment 16 
 
 Diligence on the part of 
 
 not a defense to actions under Safety Appliance Acts 13 
 
 will obviate occasion for such prosecutions 14 
 
 Decision of conductors, as to disposition of defective cars, in legal effect, 
 
 decision of 16 
 
 Inconvenience of, not an element of violations 16 
 
 Willful intention of, not an element of violations 16 
 
 Prior knowledge of, not an element of violations 14 
 
 liable for: 
 
 hauling defective foreign cars 26 
 
 defectd due to deliberate acts of employees 17 
 
 failure of employees to connect uncoupling chains 80 
 
 hauling of defective cars over lines of other carriers 34 
 
 need not accept defective cars from connecting lines 27 
 
 required to provide necessary repair points 63 
 
 in order to justify movement of defective carb: 
 
 must establish necessity of movement for repair 98 
 
 must show that defects involved could not have been repaired at 
 
 point of discovery 100 
 
 Intrastate, participating in interstate commerce, subject to Safety Appli- 
 ance Acts 31 
 
 Common control of facilities not prerequisite to application of Safety Ap- 
 pliance Acts to intrastate 33 
 
 Inspectors of Commission need not advise, of defects 203 
 
 subject to Hours of Service Act 120 
 
 Absolute liability of Ill 
 
 chargeable with knowledge of acts of officers and agents 115 
 
 required to provide resting places for employees 163 
 
 not excused from filing reports by failure of Commission to include 
 
 with Order of June 28, 1911, forms therein described 176 
 
 Inability of, to compel employees to rest during intermissions from 
 
 duty, a remote contingency 120 
 
 See Common Carriers; Electric Railways; Railroads. 
 CARRIERS' REPORTS: See Hours op Service Reports. 
 CARS 
 
 running on rails, "Any car" comprehends all 46 
 
 Safety Appliance Acts apply to all: 
 
 containing interstate traffic '. 35 
 
 hauled or used in interstate trains 36 
 
 hauled or used in connection with interstate cars *. 39 
 
 movement of which is necessarj^ to movement of interstate cars 40 
 
 hauled or used on highway of interstate commerce 41 
 
260 INDEX. 
 
 CARS — Continued. Page. 
 
 regularly used in interstate commerce 42 
 
 empty 44 
 
 Cars hauled in connection with interstate cars need not be contiguous to 
 
 such : 40 
 
 Hauling of, commerce 45 
 
 to which Safety Appliance Acts apply, subject to their terms while moved 
 
 within a single State 48 
 
 hauled under trackage agreement, hauled on line of operating company. . 34 
 
 moved for lading, used in interstate commerce 182 
 
 Subsequent movement of, to interstate destination, evidence of intended 
 
 destination at time of movement for lading 188 
 
 Weighing of, to determine weights of interstate contents, interstate com- 
 merce 183 
 
 Handholds required in ends and sides of 84 
 
 Purpose of handholds to secure safety of men in coupling 83 
 
 may be, but are not required to be, equipped with double levers 81 
 
 Couplers required to be operated on both ends of . . . '. 69 
 
 with power brakes cut out, not power-braked 66 
 
 Engine and tender counted as two, in computing percentage of power 
 
 brakes in any train • 66 
 
 Employees entering between, not chargeable with contributory negligence. 229 
 See Caboose Cars; Defective Cars; Dining Cars; Locomotives; Pas- 
 senger Cars; Tenders. 
 
 CASUALTY, defined 16« 
 
 See Provisos. 
 CAUSAL CONNECTION must be established between violation of statute and 
 resulting injury, to bring a case within purview of Safety Appliance Acts 
 
 or Hours of Service Act 231 
 
 CAUSES OF DELAY 
 
 ordinarily to be expected in operation of trains not an excuse for excess 
 
 service 168 
 
 See Broken Rails; Cleaning Fires; Congestion of Traffic; Delay in 
 Starting Trains; Economical Reasons; Engine Failures; Frost 
 ON Rails; Heat; Hot Boxes; Injectors Failing; Intermissions; 
 Meeting or Passing Trains; Poor Coal; Pulled out Drawbars; 
 Running for or Taking Water; Sudden Illness; Unnecessary 
 Hauling of Chain ed-up Cars; Waiting for Helper Engine; 
 Waiting for Orders; Wrecks. 
 CHAINED UP CARS 
 
 Act of 1910 does not permit hauling of, in revenue trains or in association 
 
 with cars commercially used 106 
 
 Unnecessary hauling of, not an excuse for excess service 170 
 
 CHAINS 
 
 Carriers liable for failure of employees to connect : 80 
 
 connecting with handrails, Safety Appliance Acts prohibit couplers 
 
 operative only by means of 74 
 
 CHARACTER: See Interstate Character. 
 CIVIL ACTIONS, proceedings under: 
 
 Safety Appliance Acts 19 
 
 Hours of Service Act 116 
 
 CLEANING FIRES not an excuse for excess service 169 
 
 CLEVIS PIN, removed, Safety Appliance Acts prohibit use of a coupler with. . 76 
 See Pin. 
 
INDEX. 261 
 
 Page. 
 
 COAL, Use of poor, not an excuse for excess service 170 
 
 COLLISIONS: See Wrecks. 
 
 COMBINING OF DEFECTS. Delay in making repairs not justified by 97 
 
 COMMA: See Punctuation. 
 
 COMMERCE, Hauling of car itself is 45 
 
 See Interstate Commerce. 
 
 COMMERCIALLY USED 
 
 by interstate carriers, Safety Appliance Acts apply to cars 45 
 
 Cars used for transportation of company property, are : . . 45 
 
 Act of 1910 prohibits hauling of chained up cars in revenue trains or in 
 
 association with cars 100 
 
 COMMINGLING 
 
 of interstate and intrastate commerce, dangers affecting 185 
 
 of employee's duties, Application of Hours of Service Act not to be evaded 
 
 by , 128 
 
 COMMISSION. /Sffi Interstate Commerce Commission. 
 
 COMMON CARRIERS: 
 
 defined 29 
 
 Railroads devoted to public use are 29 
 
 Receivers of railroad companies, as such, are 121 
 
 See Railroads. 
 
 COMMON CONTROL, MANAGEMENT OR ARRANGEMENT not prerequi- 
 site to application of Safety Appliance Acts to intrastate carriers- 33 
 
 COMMON LAW, Statutes modifying, to be strictly construed 197 
 
 COMPANY PROPERTY, Hauling of, by interstate carrier, interstate com- 
 merce 184 
 
 CONDUCTOR, Decision of, as to disposition of defective car, in legal effect 
 
 decision of carrier by which employed 16 
 
 CONFLICT OF LAWS: Invalidity of state statutes seeking to regulate inter- 
 state commerce 187 
 
 CONGESTION OF TRAFFKJ not an excuse for excess service- 169 
 
 CONGRESS 
 
 in regulating interstate commerce, may incidentally regulate intrastate 
 
 traffic .* 190 
 
 in drafting Safety Appliance Acts, took cognizance of difficulties incident 
 
 to interchange of couplers 82 
 
 Intention of, controls interpretation of federal statutes 192 
 
 •ONNECTION 
 
 with interstate cars, Safety Appliance Acts apply to all cars hauled or used 
 
 in 39 
 
 Cars hauled or used in, need not be contiguous to such cars 40 
 
 Causal, must be established between violation of statute and injury sus- 
 tained, to bring action within purview of Acts 231 
 
 "CONSECUTIVE " as used in Hours of Service Act, not restricted to unbroken 
 
 intervals of time -. 137 
 
 CONSTITUTIONAL: 
 
 Safety Appliance Acts are 9 
 
 Hours of Service Act is 108 
 
 Classification of operators in Hours of Service Act is 109 
 
 Orders of Commission requiring reports are Ill 
 
262 INDEX. 
 
 CONSTRUCTION AND INTERPRETATION Page. 
 
 of Safety Appliance Acts 9 
 
 of Hours of Service Act 108 
 
 CONSTRUCTION OF STATUTES, General nilee governing, as applied in 
 
 caaes under Acts 192 
 
 CONTEMPORANEOUS INTERPRETATION of those entrusted with exe- 
 cution of citatutes, entitled to respectful consideration of courts 198 
 
 CONTENTS, Weighing of interstate, interatate commerce 183 
 
 CONTIGUOUS to interstate cars. Cars used in connection with, need not be. . 40 
 CONTINUITY OF SERVICE unbroken by intermissions from duty; 
 
 if indeterminate 140 
 
 if too brief to permit of rest 138 
 
 unless given in good faith and under circumstances that permit of rest . 142 
 CONTINUOUS 
 
 as used in Hours of Service Act, not restricted to unbroken periods of time. . 13T 
 If an operator remains on duty for more than 9 or 13 hours in a 24-hour 
 
 period, it is immaterial that such service may not be 162 
 
 CONTINUOUSLY OPERATED 
 
 as used in Hours of Service Act, defined 14T 
 
 Trifling interruptions do not break continuity of operation of oflfices other- 
 wise 149 
 
 CONTRACT: See Specific Performance; Trackage Agreement. 
 CONTRIBUTORY NEGLIGENCE 
 
 distinguished from assumption of risk 223 
 
 Assumption of risk not to be charged under name of 223 
 
 Defense of, unimpaired by Safety Appliance Acts 228 
 
 Burden of proving, on defendant, in actions for personal injury 229 
 
 Question of, for jury 230 
 
 Knowledge and experience to be considered by jury in determining what is . 230 
 
 Employees entering between cars, not chargeable with 229 
 
 CONTROL 
 
 of interstate commerce. Federal 186 
 
 All commerce subject to federal or to state 186 
 
 CONVENIENCE not an element of observance of Safety Appliance Acts 15 
 
 COUPLERS 
 
 General requirements of Safety Appliance Acts, with respect to 68 
 
 between engines and tenders need not be automatic 70 
 
 required to be operative ^ 
 
 on both ends of cars 69 
 
 of their own mechanism 71 
 
 in an ordinary and reasonable manner 70 
 
 must be susceptible of being coupled as well as uncoupled without neces- 
 sity of men going between ends of cars 68 
 
 if defective, need aot be actually used, to constitute violation of Safety 
 
 Appliance Acts 71 
 
 Safety Appliance Acts prohibit use of, which will not couple automat- 
 ically by impact 76 
 
 by reason of being worn out •. 76 
 
 by reason of clevis pin removed 75 
 
 by reason of chain kinked in coupler head 76 
 
 by reason of curvature of track 77 
 
 by reason of projecting load , 78 
 
INDEX. 263 
 
 COUPLERS— Continued. Page, 
 operative only by means of chains connecting with handrails, not in com- 
 pliance with Safety Appliance Acts 74 
 
 Defective, may not be used, even though defects so obvious that no reason- 
 ably prudent employee would attempt to use 79 
 
 Operation of automatic, a proper subject for expert testimony 209 
 
 Exhibition of models to illustrate defects in, permissible 210 
 
 Temporary substitution of "stub pilot" to install automatic, not action- 
 able negligence 228 
 
 Preparation of, for impact, part of coupling operation 74 
 
 Congress, in drafting Safety Appliance Acts, took cognizance of difficulties 
 
 incident to interchange of 82 
 
 Use of car on which a coupler is inoperative, same in legal effect as if such 
 
 car had never been equipped with automatic 80 
 
 COUPLING 
 
 of air hose no part of coupling operation 74 
 
 Provisions of Acts that couplers shall be operative without necessity of 
 men going between ends of cars, applicable to, as well as to uncoupling 
 
 operations 68 
 
 COUPLING OPERATION 
 
 Preparation of couplers for impact, part of 74 
 
 Coupling of air hose between cars, no part of 74 
 
 COURTS 
 
 may take judicial notice of 
 
 Safety Appliance and Hours of Service Acts 219 
 
 Orders of the Interstate Commerce Comjnission made in pursuance 
 
 thereof 219 
 
 fact that trunk-line railroads are generally engaged in interstate com- 
 merce 30 
 
 have no authority to impose for carriers' failure to report a smaller penalty 
 
 than that provided by section 20 of Act to regulate commerce 176 
 
 should not concern themselves with harshness of legislation 196 
 
 must enforce law as they find it 195 
 
 in construing statutes may consult their history 196 
 
 should give respectful consideration to contemporaneous interpretation of 
 
 statutes by those entrusted with their execution 198 
 
 Penalties under Hours of Service Act, determinable by 119 
 
 Refusal of, in proper cases, to direct a verdict, reversible error 216 
 
 CREW: See Employees. 
 
 CURVATURE IN TRACK, Safety Appliance Acts prohibit use of couplers" 
 
 inoperative by reason of 77 
 
 CUSTOMS AND REVENUE LAWS, Safety Appliance Acts to be construed 
 
 similarly to 21 
 
 CUT OUT CARS: See Power Brakes. 
 
 DANGER to intrastate commerce jeopardizes interstate commerce 185 
 
 DAYTIME, Offices operated only during, defined 147 
 
 DEADHEADING Employees, exempted from application of Hours of Service Act 126 
 DEBT, Penalties under Safety Appliance Acts recoverable in actions in nature 
 
 of actions in 20 
 
 DECLARATIONS 
 
 in cases under Acts need not negative provisos 211 
 
 Allegations in, that cars are ''not equipped with couplers coupling auto- 
 matically by impact, ' ' a statement of result, not an affirmative charge . . 214 
 
 See Pleading, Practice and Procedure. 
 
264 INDEX. 
 
 Page. 
 DEFECTIVE, Repeated unsuccessful efforts to operate couplers, evidence that 
 
 they are .' 71 
 
 DEFECTIVE CARS 
 
 may be hauled on flat cars properly equipped 28 
 
 may not be hauled by means of chains in revenue trains 100 
 
 permitted to be hauled to nearest available repair point 92 
 
 not permitted to be hauled away from a repair point 95 
 
 Carriers need not accept ■ 27 
 
 Decision of conductor as to disposition of, decision of carrier by which em- 
 ployed 16 
 
 Distance hauled in violation of Safety Appliance Acts, immaterial 62 
 
 Necessity of movement of, for purpose of repair, must be established under 
 
 proviso in Act of 1910 98 
 
 0^vnership of, immaterial in actions under Safety Appliance Acts 26 
 
 Working on, not assumption of risk 224 
 
 Unnecessary hauling of, by means of chains instead of drawbars, not an 
 
 excuse for excess service 170 
 
 DEFECTS 
 
 Diligence in repair of 
 
 not a defense in actions under Safety Appliance Acts 13 
 
 will obviate occasion for such prosecutions 14 
 
 may not not be combined so as to jastify delay in making repairs 97 
 
 must be repaired, if possible, at point of discovery 100 
 
 Carrier's knowledge of, not an element of violations of Safety Appliance 
 
 Acts. • 14 
 
 Carriers liable for, resulting from deliberate acts of employees 17 
 
 Engine failures, due to mechanical, not an excuse for excess service 169 
 
 Exhibition of model couplers for illustration of, permissible 210 
 
 Employee's continuance in service of carrier with knowledge of, not as- 
 sumption of risk 225 
 
 See Defective Cars. 
 DEFENDANTS 
 
 must bring themselves strictly within terms of proviso 212 
 
 Judgment may be rendered against either or both of two joint 217 
 
 DEFENSE 
 
 to actions under Safety Appliance Acts: 
 
 Diligence not a IS 
 
 Lack of knowledge of defects, not a 14 
 
 Lack of intention to violate statute, not a ^ 15 
 
 Inconvenience, not a 15 
 
 Custom of carriers in observance of practice ^ condemned by statute, 
 
 not a 27 
 
 to actions under Hours of Service Act: 
 
 Lack of knowledge of violations or previous instructions to contrary, 
 
 not a 113 
 
 Occurrence of conditions ordinarily to be expected in operation of 
 
 trains, not a 168 
 
 Economical reasons alone, never a 172 
 
 See Exceptions. 
 DELAY IN STARTING TRAINS not an excuse for excess sendee 169 
 
INDEX. 265 
 
 Page. 
 
 DELEGATION OF AUTHORITY to designate height of drawbars, consti- 
 tutional 10 
 
 DERAILMENTS: See Wrecks. 
 
 DILIGENCE 
 
 not a defense to actions under Safety Appliance Acts .• 1^ 
 
 will obviate occasion for such prosecutions 14 
 
 DINING CARS, Safety Appliance Acts apply to 4& 
 
 DINNER: See Meals. 
 
 DIRECTED VERDICT 
 
 permissible only when all reasonable men would deduce same conclusion 
 
 from facts which condition issue 215 
 
 Government entitled to, if case established by uncontradicted evi- 
 dence 214 
 
 Refusal of trial judge, in proper case to order, reversible error 215 
 
 DISCRETION of employee in continuing on duty in excess of permitted 
 
 periods can not supersede mandate of law 114 
 
 DISTANCE defective cars hauled in violation of Safety AppUance Acts, im- 
 material 62 
 
 DISTRICT OF COLUMBIA 
 
 Provisions of Safety Appliance Acta extend to 28 
 
 Jurisdiction of actions under Acts, vested in Supreme Court of 218 
 
 DIVERTING ORDER changes destination of shipment 1 84 
 
 DIVISION POINT 
 
 defined 164 
 
 Suit for specific performance of contract to maintain, where continuance 
 
 would preclude observance of Hours of Service Act, unsustainable 217 
 
 DOUBLE LEVERS 
 
 permitted but not required by Safety Appliance Acts 81 
 
 if applied, must be operative 82 
 
 DOUBLING on hill, account of frost on rails, not an excuse for excess service . . 169 
 
 DRAWBARS 
 
 General requirements with respect to 86 
 
 may not be used on front ends of locomotives if lower than standard 
 
 height 87 
 
 Causes of depression of, below standard height, immaterial 89 
 
 pulled out, not an excuse for excess service 170 
 
 Unnecessary hauling of defective cars by means of chains instead of, not 
 
 an excuse for excess service 170 
 
 See Couplers. 
 
 DUTIES 
 
 of engine watchmen, defined 137 
 
 of employees, Application of Hours of Service Act not to be evaded by 
 
 commingling of 128 
 
 DUTY OF CARRIERS 
 
 under Safety Appliance Acts, absolute 10 
 
 under Hours of Service Act, absolute Ill 
 
 not to be evaded by assignment 16^ 
 
 to provide appropriate places along their lines: 
 
 where statutory defects may be repaired 63 
 
 where employees may rest 163 
 
 ECONOMICAL REASONS alone, never an excuse for excess service 172 
 
 ECONOMIC LOSS resulting from accidents, Acts designed to distribute 8 
 
266 INDEX. 
 
 Page. 
 
 " EFFICIENT," aa descriptive of handbrakes, defined 90 
 
 ELECTRICAL CURRENT, Proviso in section 2 of Hours of Service Act, 
 
 applicable to all employees handling train orders by means of 153 
 
 ELECTRIC RAILWAYS engaged in interstate commerce, subject to: 
 
 Safety Appliance Acts 33 
 
 Hours of Service Act 121 
 
 EMERGENCY 
 
 as used in Hours of Service Act, defined 159 
 
 Employees in train service may occasionally use telephone in cases of 157 
 
 Sudden illness may constitute an 172 
 
 EMPLOYEES 
 
 entering between cars, not chargeable with contributory negligence 229 
 
 on work trains assembling logs for interstate shipment, engaged in inter- 
 state commerce 182 
 
 subject to Hours of Service Act 122 
 
 in train service may occasionally use telephone 157 
 
 may not prolong service by duties unconnected with movement of any 
 
 train 130 
 
 while deadheading, exempted from application of Hours of Service 
 
 Act 126 
 
 Separate penalties recoverable for each and all who remain on duty in 
 
 excess of permitted periods 118 
 
 Safety Appliance Acts designed to promote safety of 7 
 
 Hours of Service Act designed to promote safety of 106 
 
 Carriers liable for defects chai^eable to deliberate acts of 17 
 
 Carriers liable for failure of, to connect chains 80 
 
 No violation of Safety Appliance Acts results from failure of, to operate 
 
 equipment 17 
 
 One penalty for \'iolation of Safety Appliance Acts accrues to, in abro- 
 gation of assumption of risk 24 
 
 Safety Appliance Acts prohibit use of cars on which appliances are so 
 obviously defective as not to be attempted to be used by reasonably 
 
 prudent 79 
 
 Purpose of handholds to secure safety of 83 
 
 Discretion of, in continuing on duty in excess of permitted periods does 
 
 not supersede mandate of law 114 
 
 Inability of carriers to compel rest of, a remote contingency 120 
 
 Preparatory or supplemental service of, to be computed as time on duty .. 126 
 Application of Hours of Service Act to, not to be evaded by commingling 
 
 of duties 128 
 
 Duty of carriers to provide suitable places along their lines for rest and 
 
 recuperation of 163 
 
 Excess service of, not excused by occurrence of conditions ordinarily to 
 
 be expected in operation of trains 168 
 
 "Other", as used in Hours of Service Act, defined 123 
 
 See Ferry Employees; Train Baggagemen. 
 EMPLOYERS' LIABILITY ACTS distinguished 
 
 from Safety Appliance Acts 28 
 
 from Hours of Service Act 116 
 
 EMPTY CARS, Safety Appliance Acts apply to 44 
 
INDEX. 267 
 
 ENACTING CLAUSE Page. 
 
 Purpose of statute exhibited in title and 193 
 
 Purpose of proviso to restrain or modify 211 
 
 ENDS AND SIDES OF CARS, Handholds required in 84 
 
 ENDS OF CARS 
 
 defined 61 
 
 Automatic couplers required on both 61 
 
 ENGINE, Waiting for helper, not an excuse for excess service 171 
 
 ENGINE FAILURES, not . n excuse for excess service 16» 
 
 ENGINES AND TENDERS 
 
 counted as two cars in computing percentage of air 66 
 
 Automatic couplers not required between 70 
 
 ENGINE WATCHMEN 
 
 Duties of, defined 13T 
 
 . Firemen as, on duty within purview of Hours of Service Act 131 
 
 Immaterial whether service as, precedes, intervenes, or succeeds regul^ 
 
 serAdce 136 
 
 EQUIPMENT 
 
 prescribed by Safety Appliance Acts must be maintained in appropriate 
 
 repair 10 
 
 No violation of Safety Appliance Acts results from failure of employees to 
 
 operate 1 IT 
 
 EVIDENCE, General rules of 201 
 
 EXCEPTIONS to the application of the 
 
 Safety Appliance Acts 90 
 
 Hours of Service Act 159 
 
 EXCESSIVE HEAT, Held to be an excuse for excess service 171 
 
 EXCESS SERVICE, See Hours of Service Act. 
 
 EXCUSES: See Defense. 
 
 EXECUTION OF STATUTES, interpretation of those intrusted with, entitled 
 
 to respectful consideration of courts 198 
 
 EXPERT TESTIMONY 
 
 Operation of automatic couplers a proper subject for .• 20D 
 
 Competency of openings in buffers on ends of cars as substitutes for hand- 
 holds, not a proper subject for 20© 
 
 EXPRESS MATTER, Transportation of, for independent express company 
 
 to interstate destination, interstate commerce 18$ 
 
 FACILITIES FOR REPAIR, Carriers required to provide 63 
 
 FAILURES OF ENGINES: 6'ee Engine Failures. 
 
 FATIGUE as truly a physical cause of accidents as open switches and broken 
 
 rails 119 
 
 FEDERAL CONTROL of interstate commerce, generally 186 
 
 FERRY EMPLOYEES exempted from application of Hours of Service Act. . 122 
 FIFTH AMENDMENT not infringed by Order requiring Hours of Service 
 
 Reports Ill 
 
 FIREMEN WATCHING ENGINES: See Engine Watchmen. 
 
 FIRES, Cleaning of, not an excuse for excess service 169 
 
 FLAT CARS, Defectivecars may be hauled on 28 
 
 FLUES LEAKING not an excuse for excess service 169 
 
 FOOD AND DRUGS ACTS, Safety Appliance Acts analogous to 21 
 
 FOREIGN CARS, Carriers liable for hauling of defective 26 
 
 FORMS, Failure to include, with Order of June 28, 1911, no defense to carrier's 
 
 failure to file reports 176 
 
288 INDEX. 
 
 Page. 
 FOURTH AMENDMENT not infringed by Order requiring Hours of Service 
 
 Reports Ill 
 
 FREIGHT CARS, Locomotives at heads of freight trains 46 
 
 FROST ON RAILS, not an excuse for excess serAdce 169 
 
 GENERALLY ENGAGED in interstate commerce 
 
 Safety Appliance Acts apply to railroads 30 
 
 Courts may take judicial notice that trunk line railroads are 30 
 
 GOVERNMENT 
 
 entitled to directed verdict, if case established by uncontradicted evidence . 214 
 
 need not negative provisos in statutes 211 
 
 Burden of proof on, in cases under Acts 201 
 
 Inspectors of, need not advise carriers of defects 203 
 
 See United States. 
 
 GRAB IRONS: See Handholds. 
 
 HAND* BRAKES 
 
 Requirements of Safety Appliance Acts witJi respect to 89 
 
 Use of, to insure safety of trains, not a violation of Safety Appliance Acts. . 66 
 
 ' * Efficient, ' ' as used in section of Acts requiring, defined 90 
 
 HANDHOLDS 
 
 Requirements of Safety Appliance Acts with respect to 83 
 
 Purpose of, to secure safety of men in coupling cars 83 
 
 required in ends and aides of cars 84 
 
 Any reasonable substitute for, compliance with Safety Appliance Acts 85 
 
 Determination of what are, a question for jury 208 
 
 Necessity of, not obviated by presence of other devices affording some 
 
 measure of safety 85 
 
 Competency of openings in buffers on ends of cars, as substitutes for, not a 
 
 proper subject for expert testimony 209 
 
 HANDRAILS, Safety Appliance Acts prohibit use of couplers operative only 
 
 by means of chains connecting with 74 
 
 HARSHNESS of particular legislation, no concern of courts 195 
 
 "HAUL," defined 37 
 
 HAULED OR USED, Cars subject to Safety Appliance Acts if: 
 
 in interstate trains 36 
 
 in connection with interstate cars 39 
 
 on any highway of interstate commerce 41 
 
 in territories of United States 35 
 
 by one carrier over tracks of another, under trackage agreement 34 
 
 HAULING 
 
 of car itself, commerce 45 
 
 of each car in Adolation of Acts, a separate offense 25 
 
 See Provisos. 
 
 HEAT, Held an excuse for excess service 171 
 
 HELPER ENGINE, Waiting for, not an excuse for excess service 171 
 
 HIGHWAY of interstate commerce. Safety Appliance Acts apply to all cars 
 
 hauled or used on 41 
 
 HISTORY, Courts in construing statutes, may consult their 196 
 
 HOSE: See Am Hose. 
 
 HOT BOXES not an excuse for excess service 169 
 
 HOURS OF SERVICE ACT 
 Federal: 
 
 Nature and Purpose - 106 
 
 Construction and Interpretation 108 
 
INDEX. 269 
 
 HOURS OF SERVICE ACT— Continued. Page. 
 Federal— Continued. 
 
 Scope 120 
 
 Exceptions 15d 
 
 Text 246 
 
 to be construed similarly to Safety Appliance Acts 116 
 
 distinguishable from Twenty-Eight Hour Law and Employers' Lia- 
 bility Acts 116 
 
 Violations of, Held more serious than of Safety Appliance Acts and 
 
 Twenty-Eight Hour Law 117 
 
 Government need not negative proAdsos in 211 
 
 of a State, invalid if in conflict with federal Act 189 
 
 HOURS OF SERVICE REPORTS 
 
 General requirements \vith respect to 173 
 
 Commission's Order requiring, not unconstitutional Ill 
 
 ILLNESS may be an emergency within purview of Hours of Service Act 172 
 
 IMPACT, Operation of couplers must be automatic by 75 
 
 INJECTORS FAILING, not an excuse for excess service 169 
 
 INJURY: See Actions for Personal Injury 
 IN PARI MATERIA 
 
 Safety Appliance Acts and Employers Liability Acts 24 
 
 Safety Appliance Acts and Act to regulate commerce, not 22 
 
 INSPECTION of air brake equipment required at terminals 67 
 
 INSPECTORS 
 
 of Interstate Commerce Commission 
 
 need not advise carriers of defects 203 
 
 not to be discredited on account of employment 205 
 
 Memoranda of, made from original waybills, may be read to jury 207 
 
 of carriers 
 
 not to hi discredited on account of employment 205 
 
 Testimony of, with respect to inspection of particular cars and failure 
 
 to discover particular defects, positive testimony of negative fact. . 207 
 INSTRUCTIONS to employees not to violate Hours of Service Act, not a 
 
 defense 118 
 
 INSTRUMENTALITIES OF INTERSTATE COMMERCE 
 
 Regulation of Interstate commerce, comprehends power to regulate 190 
 
 States may regulate, under police power 189 
 
 Rails and roadway of interstate carriers are 190 
 
 INTENTION 
 
 of legislature controls construction of statutes 192 
 
 Secret, of legislature not to be construed into statutes 193 
 
 of carriers to violate Safety Appliance Acts, not an element of their vio- 
 lation 15 
 
 INTERCHANGEABILITY OF COUPLERS, Difficulties of, before Congress, 
 
 in drafting of Safety Appliance Acts 82 
 
 INTEREST 
 
 of witnesses no reason for discrediting their testimony 205 
 
 INTERMISSIONS 
 
 for meals, not an excuse for excess service 170 
 
 if indeterminate, do not break continuity of service 140 
 
 if too brief to permit of rest, do not break continuity of service 138 
 
 to break continuity of service, must be given in good faith 142 
 
 Inability of carriers to compel employees to rest during, a remote contin- 
 gency 120 
 
270 INDEX. 
 
 INTERPRETATION Page. 
 
 of Safety Appliance Acts 9 
 
 of Hours of Service Act 108 
 
 Uncertainty in, removed by appropriate punctuation 194 
 
 See Construction op Statutes. 
 
 INTERRUPTIONS: See Intermissions. 
 
 INTERSTATE AND INTRASTATE COMMERCE so commingled that con- 
 ditions injuriously affecting one, jeopardize the other 185 
 
 INTERSTATE CARRIERS 
 
 Safety Appliance Acts apply to cars commercially used by 46 
 
 Hauling by, of their own products, interstate commerce 45 
 
 Rails and roadway of, instrumentalities of interstate commerce 190 
 
 INTERSTATE CARS 
 
 Safety Appliance Acts apply to: 
 
 all 35 
 
 all cars used or hauled in connection with 39 
 
 all cars movement of which is necessary to movement of 40 
 
 Cars hauled or used in connection with, need not be contiguous to 40 
 
 INTERSTATE CHARACTER 
 
 attaches when shipment starts to move as article of interstate commerce 
 
 and continues until ultimate destination is reached 180 
 
 Rebilling of interstate shipments does not affect 184 
 
 INTERSTATE COMMERCE ' 
 
 Definitions of 179 
 
 Federal control of 186 
 
 One system of control of, alone appropriate 187 
 
 State statutes interfering with, invalid 187 
 
 Congress in regulating, may regulate intrastate commerce 190 
 
 Regulation of, comprehends regulation of instrumentalities 190 
 
 Rails and roadway of interstate carriers are instrumentalities of 190 
 
 Obstruction of, unlawful 191 
 
 Application of Hours of Service Act to employees not to be evaded by 
 
 commingling of duties with respect to intrastate and 128 
 
 Safety Appliance Acts apply to all cars regularly used in 42 
 
 Acts apply to all cars hauled or used on any highway of 41 
 
 Acts apply to electric railways participating in movement of 33 
 
 Acts apply to intrastate railways participating in movement of 31 
 
 Territorial commerce equivalent to, in subjection to Acts 35 
 
 Acts apply to railroads generally engaged in 30 
 
 Courts may take judicial notice that trunk line-railroads are generally 
 
 engaged in 30 
 
 INTERSTATE COMMERCE COMMISSION 
 
 Inspectors of, need not advise carriers of defects 203 
 
 Delegation of authority to, to designate standard height of drawbars, not 
 
 unconstitutional 10 
 
 See Orders of the Interstate Commerce Commission. 
 
 INTERSTATE DESTINATION, Movement of car to, evidence of intended 
 
 destination at time of movement for loading 183 
 
 INTERSTATE HIGHWAY, Safety Appliance Acts apply to all cars hauled 
 
 over an 41 
 
 INTERSTATE TRAFFIC, Safety Appliance Acts apply to all cars containing. . 35 
 See Interstate Commerce. 
 
 INTERSTATE TRAINS, Safety Appliance Acts apply to all cars hauled or 
 
 used in 36 
 
INDEX. 271 
 
 Page. 
 
 INTERURBAN RAILWAYS, Safety AppUance Acte apply to 33 
 
 INTERVALS OF TIME, ''Consecutive" and "continuous, " as used in Hours 
 
 of Service Act, not restricted to unbroken 137 
 
 See Intermissions 
 
 INTERYARD MOVEMENTS, Safety Appliance Acts apply to 49 
 
 INTRASTATE COMMERCE, 
 
 Dangers affecting commingling of interstate and 185 
 
 Congress in regulating interstate commerce may incidentally regulate 190 
 
 INTRASTATE RAILWAYS participating in interstate commerce subject to 
 
 Safety Appliance Acts 31 
 
 ISLAND OF PORTO RICO, Provisions of Safety AppUance Acte extend to. . 64 
 
 JOINT ACTIONS, Judgment may be rendered against either or both defend- 
 
 ante in 217 
 
 JUDICIAL CONSTRUCTION 
 
 out of place where statutes are unambiguous 194 
 
 No statute should be frittered away by 197 
 
 See Construction op Statutes. 
 
 JUDICIAL NOTICE may be taken 
 
 of Safety Appliance and Hours of Service Acts, and of 
 
 Orders of Commission in furtherance thereof 219 
 
 of fact that trunk-line railroads are generally engaged in interstate com- 
 merce 30 
 
 JURISDICTION of actions under Safety Appliance and Hours of Service 
 
 Acts, Supreme Court of District of Columbia has 218 
 
 JURY 
 
 Determination of what is a handhold, within province of 208 
 
 Competency of substitutes for handholds, a question for 209 
 
 Exhibition of model couplers to, permissible 210 
 
 Necessity of movement for repair, a question for 100 
 
 Proximate cause of an injury, a question for '.' 230 
 
 Contributory negligence, a question for 230 
 
 KINKED CHAINS, Safety Appliance Acts prohibit use of couplers inopera- 
 tive by reason of 76 
 
 KNOWLEDGE 
 
 not an element of violations of 
 
 Safety Appliance Acte 14 
 
 Hours of Service Act 113 
 
 of acte of officers and agente, chargeable to carriers 115 
 
 LADING, Cars moved for, used in interstate commerce 182 
 
 LAW: See Statutes. 
 
 LEAKY FLUES not an excuse for excess service 169 
 
 LEGISLATURE 
 
 Intention of, controls construction of statutes 192 
 
 Secret intention of, not to be construed into a statute 193 
 
 If burden of statute too severe, remedy lies with 196 
 
 LENGTH OF HAUL of defective cars, immaterial 62 
 
 LEVERMEN IN TOWERS, Proviso in section 2 of Hours of Service Act, 
 
 applies to 153 
 
 LEVERS 
 
 Use of switch engine without, not a violation of Safety Appliance Acte 
 unless it is shown that such levers are necessary to automatic operation 
 of couplers 82 
 
272 INDEX. 
 
 LEVERS— Continued. Pag,. 
 
 Double, permitted, but not required by Safety Appliance Acta 81 
 
 Double, if applied, must be operative 82 
 
 on opposite sides of trains. Safety Appliance Acts do not contemplate that 
 employees shall go around, over or under cars to operate couplers by 
 means of 72 
 
 LIABILITY ACTS: See Employers' Liability Acts. 
 
 LIABILITY OF CARRIERS 
 absolute under 
 
 Safety Appliance Acts 10 
 
 Hours of Service Act Ill 
 
 not to be evaded by assignment 16 
 
 not to be excused by act of God unless resulting injury unpreventable by 
 
 foresight, pains and care 168 
 
 LIMITATION OF SERVICE 
 
 of trainmen 124 
 
 of operators and similar employees 143 
 
 LOADS: See Projecting Loads. 
 
 LOCAL STATIONS, Service of operators at, within purpose of Hours of Service 
 
 Act : 158 
 
 LOCOMOTIVES 
 
 subject to Safety Appliance Acts 46 
 
 at heads of freight trains, freight cars 46 
 
 LOCOMOTIVE TENDERS: See Tenders. 
 
 LOGS, Employees on work trains assembling, for interstate shipment, engaged 
 
 in interstate commerce 182 
 
 LUMBER: See Projecting Loads. 
 
 MAINTENANCE of equipment prescribed by Safety Appliance Acta 10 
 
 MANAGEMENT: See Common Control, Management or Arrangement. 
 MASTER AND SERVANT: See Actions for Personal Injury. 
 
 M. C. B. DEFlStlT CARD defined 26 
 
 MATERIAL 
 
 Hauling by interstate carrier of its own, interstate commerce 45 
 
 for repairs required to be provided by carriers subject to Safety Appliance 
 
 Acts , 6S 
 
 MEALS, Intermissions for, do not break continuity of service 170 
 
 MECHANICAL DEFECTS, Engine Failures due to, not an excuse for excess 
 
 service 16d 
 
 MECHANISM, Couplers must be operative of their own 71 
 
 MEETING OR PASSING TRAINS, not an excuse for excess service 170 
 
 MERITORIOUS, Acts are 7 
 
 MEMORANDUM made by government inspector from original waybills, may 
 
 be read to jury 207 
 
 MODEL COUPLERS admissible in evidence for illustration of particular 
 
 defects 210 
 
 MOVEMENTS 
 
 of cars for loading, use in interstate commerce 182 
 
 of any car subject to Safety AppUance Acts, if necessary to movement of 
 
 interstate car 40 
 
 Safety AppUance Acts apply to switching 4d 
 
 See Provisos. 
 
 NATURE AND PURPOSE 
 
 of Safety Appliance Acts 7 
 
 of Hours of Service Act 106 
 
INDEX. 273 
 
 Page. 
 
 NAVIGABLE WATERS, Federal power over interstate commerce as com- 
 plete on land as on 187 
 
 NEAREST REPAIR POINT 
 
 defined 92 
 
 Defective cara permitted to be hauled for repair to 92 
 
 NECESSARY ■ 
 
 as used in Act of 1910, defined 91 
 
 movement of defective cars for purpose of repair permitted by proviso in 
 
 Act of 1910 : 92 
 
 NECESSITY of movement for repair 
 
 ordinarily a question for jury 100 
 
 must be established by carriers seeking to bring themselves within proviso 
 
 in Act of 1910 98 
 
 NEGATIVE TESTIMONY entitled to less weight than positive testimony. . . 206 
 
 NEGLIGENCE 
 
 Burden of pro%dng, on plaintiff, in actions for personal injury 226 
 
 Violation of statutory duty 226 
 
 Carriers can not escape liability to passengers for laying off trains under 
 
 Hours of Service Act, if delays result from their own 120 
 
 NOTICE: See Judicial Notice. 
 
 OBSTRUCTION of interstate commerce unlawful 191 
 
 "OFF DUTY," as used in Hours of Service Act, defined 124 
 
 See On Duty. 
 
 OFFICES 
 
 in which train orders are handled, Hours of Service Act appUes to all 144 
 
 "Continuously operated," defined .' 147 
 
 "Operated only during daytime," defined 147 
 
 Operators at local, as clearly within purpose of Hours of Service Act as 
 
 those in train dispatchers' 158 
 
 OFFICERS AND AGENTS 
 
 Carriers chargeable with knowledge of acts of 115 
 
 as used in Hours of Service Act, not restricted to general offieers and agents. 115 
 
 ^*0N DUTY" 
 
 as used in Hours of Service Act, defined 124 
 
 Employees while deadheading, not 126 
 
 Firemen watching engines 131 
 
 ''ON ITS LINE" 
 
 Cars hauled by an operating company over the tracks of another carrier 
 
 under trackage agreement, hauled 34 
 
 "ON OR ABOUT," not fatally defective as describing occurrence of violation 
 
 of Safety Appliance Acts ^ 213 
 
 OPEN SWITCHES, Fatigue as truly a physical cause of accidents as broken 
 
 rails and 119 
 
 OPERATED ONLY DURING THE DAYTIME, as used in Hours of Service 
 
 Act, defined 147 
 
 See Continuously Operated. 
 
 OPERATORS 
 
 Limitation of service of 143 
 
 on duty 6 hours, then after interval of 3, for 3 additional hours, not on 
 
 duty for longer period than 9 hours in 24-hour period 151 
 
 on duty more than 9 or 13 hours in 24-hour period need not be continu- 
 ously on duty to constitute violation of Hours of Service Act 152 
 
 50611—15 18 
 
274 INDEX. 
 
 OPERATORS— Continued. Page. 
 may continue on duty in excess of the normally permitted periods in case 
 
 of ca8ualt3% unavoidable accident or act of God 160 
 
 Wrecks attributable to unavoidable causes, Held to excuse excess service 
 
 of 160 
 
 SerA'ice of. at local stations, Avithin purpose of Hours of Service Act 158 
 
 ORDERS 
 
 comprehends any communication of information or instructions relative 
 
 to movement of train 145 
 
 Waiting for, not an excuse for excess service 171 
 
 Diverting, change destinations of shipments 184 
 
 ORDERS OF THE INTERSTATE COMMERCE COMMISSION 
 
 Re Percentage of Power Brakes 244 
 
 Re Standard Height of Drawbars 244 
 
 Re Hours of Service Reports 249 
 
 persuasive as to meanings of statutes 28 
 
 "OTHER EMPLOYEES," as used in Hours of Service Act, defined 123 
 
 OWNERSHIP OF DEFECTIVE CARS, immaterial 26 
 
 PANAMA CIANAL ZONE, Provisions of Safety Appliance Acts extend to. . . . 64 
 
 PARI MATERIA: See In Pari Materia. 
 
 PARTICIPATION in interstate commerce renders carriers subject to Safety 
 
 Appliance Acts 31 
 
 PASSENGER CARS, Safety Appliance Acts apply to 47 
 
 PASSENGERS 
 
 Acts designed to promote safety of : 7 
 
 Carriers can not escape liability to, for laying off trains under Hours of 
 
 Service Act, if delay attributable to their own negligence 120 
 
 PASSING OR MEETING TRAINS, not an excuse for excess service 170 
 
 PENAL, Safety Appliance Acts are 7 
 
 PENALTIES 
 
 recoverable in civil actions 
 
 under Safety Appliance Acts 19 
 
 under Hours'of Service Act 116 
 
 Payment of, to United States, does not render actions criminal 20 
 
 recoverable in actions in nature of actions in Debt. . 20 
 
 Violation of Safety Appliance Acts entails two 24 
 
 Separate, recoverable for each car hauled in violation of Safety Appliance 
 
 Acts 25 
 
 Whatever constitutes a violation in action for damages likewise a violation 
 
 in action for 12, 24 
 
 Separate, recoverable for each employee remaining on duty in excess of 
 
 permitted periods 118 
 
 under Hours of Service Act, determinable by courts 119 
 
 for violations of Order requiring reports fixed by section 20 of Act to regulate 
 
 commerce 176 
 
 Substantial violations of Hours of Service Act sho\ild never be satisfied by 
 
 merely nominal 118 
 
 PEREMPTO !y INST:?UCTI0NS: See Directed Verdict. 
 PERIOD 
 
 as used in Hours of Service Act, defined 150 
 
 An operator on duty for 6 hours, then after interval of 3, for 3 additional 
 
 hours, not on duty for longer, than 9 hours 151 
 
 See Intermissions. 
 
INDEX. 275 
 
 Pago. 
 
 ''PERMIT " as used in Hours of Service Act, defined 115 
 
 PERSONAL INJURY 
 
 General rules of law applied in actions for * 220 
 
 Acts designed to decrease number of instances of 233 
 
 See Actions for Personal Injury. 
 PERSONAL INTEREST of witnesses no reason for discrediting testimony.. . 205 
 PIN. Absence of, at end of trip, evidence of defective condition at commence- 
 ment of journey 76 
 
 See Clevis Pin. 
 
 '* PLACES," as used in Hours of Service Act, defined 143 
 
 PLEADING, PRACTICE AND PROCEDURE, General rules of 211 
 
 POINTS: See Repair Points. 
 
 POLICE POWER of States validly exercised in regulation of instrumentalities 
 
 of commerce 189 
 
 POOR COAL, Use of, not an excuse for excess service 170 
 
 PORTO RICO, Provisions of Safety Appliance Acts extend to 64 
 
 POSITIVE TESTIMONY 
 
 jjreferable to negative testimony 206 
 
 of negative fact, Testimony of company inspector with respect to inspection 
 
 of particular cars and failure to discover particular defects 207 
 
 POWER 
 
 to regulate commerce, general 186 
 
 of Congress over interstate commerce : 
 
 as complete on land as on navigable waters J 87 
 
 supreme and paramount to authority of all States 187 
 
 POWER BRAKES 
 
 General requirements with respect to 65 
 
 required in interyard or switching movements 52 
 
 Engine and tender to be counted as two cars in computing percentage of . . 66 
 
 Cars with brakes cut out cease to be cars equipped with 66 
 
 Requirement of efficient, presupposes terminal inspection of 67 
 
 "Associated," defined, as used in section of Acts requiring 65 
 
 POWER DRIVING WHEEL BRAKES AND TRAIN BRAKE SYSTEMS 65 
 
 PRACTICE, General rules of 211 
 
 PREPARATION OF COUPLERS, part of coupling operation 74 
 
 PREPARATORY SERVICE of employees subject to Hours of Service Act, 
 
 computed as time on duty 126 
 
 PREPONDERANCE OF EVIDENCE 
 
 defined 202 
 
 sufficient to establish allegations in declarations under Safety Appliance 
 
 and Hours of Service Acts 201 
 
 PREVENTIVE, Safety Appliance Acts are 7 
 
 PROCEDURE, General rules of 211 
 
 PRODUCTS, Hauling by an interstate carrier of its own, interstate commerce . . 45 
 PROJECTING LOADS, Safety Appliance Acts prohibit use of couplers inop- 
 erative by reason of 78 
 
 PROOF: See Burden of Proof. / 
 
 PROPERTY, Hauling by ititerstate carrier of its own, interstate commerce. . . 46 
 
 PROSECUTIONS, Diligence will obviate occasion for 14 
 
 PROVISOS 
 
 Office of, generally 211 
 
 Defendants must bring themselves strictly within terms of 212 
 
 Government need not negative, in actions under Acts 211 
 
276 INDEX. 
 
 PROVISOS— Continued. 
 
 in Safety Appliance Acts: Page. 
 
 General provisions 90 
 
 declaratory of judicial interpretation of Acts as previously amended . . 97 
 Carriers in order to bring themselves within terms of, 
 
 must establish necessity of movement for repair 98 
 
 must show that defects could not have been repaired at point of 
 
 discovery 100 
 
 do not permit movement of defective cars by means of chains in 
 
 revenue trains 100 
 
 have no application to violations of Acts as previously amended 101 
 
 in section 2 of Hours of Servdce Act: 
 
 General pro\dsions of 159 
 
 apply to all offices in which train orders are handled 144 
 
 in section 3 of Hours of Service Act: 
 
 General pro\dsions of 160 
 
 apply to service of operators no less than to that of employees in train 
 
 service 160 
 
 PROXIMATE CAUSE in actions for personal injury: 
 
 ordinarily a question for jury 230 
 
 a question of law where facts are undisputed 230 
 
 PULLED OUT DRAWBARS not an excuse for excess service 170 
 
 PUNCTUATION, Uncertainty in interpretation of statutes may be removed 
 
 by appropriate 194 
 
 PURE FOOD AND DRUGS ACTS, Safety Appliance Acts to be construed 
 
 similarly to 21 
 
 PURPOSE 
 
 of Safety Appliance Acts ". 7 
 
 of Hours of Service Act 106 
 
 RAILROADS 
 
 Definitions, general 29 
 
 as used in Hours of Service Act, defined 121 
 
 devoted to public use are common carriers 29 
 
 Receivers of, are common carriers 121 
 
 generally engaged in interstate commerce subject to Safety Appliance Acts . 30 
 
 as highways of interstate commerce 41 
 
 engaged in interstate commerce, Courts may take judicial notice of 30 
 
 RAILS 
 
 and roadway of interstate carriers, instrumentalities of interstate commerce . 190 
 
 "Any car," comprehends all cars running on 46 
 
 Broken, not an excuse for excess service 169 
 
 Frost on, not an excuse for excess service 169 
 
 Fatigue as truly a physical cause of accidents as broken 119 
 
 Employees entering between, not chargeable with contributory negligence . 229 
 
 REASONABLE SUBSTITUTES for handholds, compliance with Safety 
 
 Appliance Acts 85 
 
 REASONABLY SAFE TOOLS AND APPLIANCES, common law duty of 
 
 carriers to provide 232 
 
 REBILLING of shipments does not affect interstate character 184 
 
 RECEIVERS of railroads, common carriers 121 
 
 RECORDS of defendant carriers admissible when offered by Government 
 
 without strict proof, as in nature of admissions 208 
 
 REGULARLY USED in interstate commerce. Safety Appliance Acts apply 
 
 to all cars '*2 
 
 See Generally Engaged. 
 
INDEX. 277 
 
 RELEASE FROM DUTY, in order to break continuity of service must be 
 granted in good faith and under such circumstances as will permit of rest 
 
 and recuperation 142 
 
 See Intermissions. 
 
 REMEDIAL 
 
 Safety Appliance Acts are 7 
 
 Hours of Service Act is 116 
 
 REPAIR V 
 
 Safety Appliance Acts require that appliances shall be maintained in 
 
 appropriate 10 
 
 Temporary stoppage of car for purpose of, does not withdraw it from uses 
 
 of interstate commerce 181 
 
 Necessity of movement for, a question for jury 100 
 
 Carriers under proviso in Act of 1910, must establish necessity of movement 
 
 alleged to have been for purpose of 98 
 
 REPAIR POINTS 
 
 must be maintained by carriers at reasonable intervals along their lines C3 
 
 Defective cars never permitted to be hauled away from 95 
 
 See Nearest Repair Point. 
 
 REPORTS OF EXCESS SERVICE: See Hours op Service Reports. 
 
 REVENUE LAWS, Safety Appliance Acts analogous to 21 
 
 REVENUE TRAINS, Proviso in Act of 1910 does not permit us© or hauling of 
 
 defective cars by means of chains in 100 
 
 ROADWAY AND RAILS of interstate carriers, instrumentalities of inter- 
 state commerce 190 
 
 RULES 
 
 Duty of carriers to promulgate, for safety of employees 232 
 
 Mere promulgation of, without enforcement, does not excuse a carrier from 
 
 UabiUty under mandatory statute 232 
 
 RUNNING FOR OR TAKING WATER, not an excuse for excess service. . . 170 
 
 SAFETY APPLIANCE ACTS 
 
 Federal: 
 
 Nature and Purpose 7 
 
 Construction and Interpretation 9 
 
 Scope 28 
 
 Power Brakes 65 
 
 Couplers 68 
 
 Handholds 83 
 
 Drawbars 86 
 
 Handbrakes 89 
 
 Exceptions 90 
 
 Text 237 
 
 analogous to Hours of Service Act 116 
 
 distinguishable from Employers' Liability Acts 23 
 
 not in pari materia with Act to regulate commerce 22 
 
 Government need not negative provisos in 211 
 
 of a State, not invalid, ir consistent with provisions of federal Acts 189 
 
 SAFETY APPLIANCES designed to secure compliance with the Acts must 
 
 be operative 18 
 
 SCOPE 
 
 of Safety Appliance Acts 28 
 
 of Hours of Service Act 120 
 
278 INDEX. 
 
 Pago. 
 
 SECRET INTENTION of legislature not to be construed into a statute 193 
 
 SENSIBLY CONSTRUED, All statutes to be 197 
 
 SERVICE 
 
 of employees subject to Hours of Service Act, not to be extended by duties 
 
 unconnected with movement of train 130 
 
 Brief intermissions do not break continuity of 138 
 
 Indeterminate intermissions do not break continuity of 140 
 
 Intermissions, in order to break continuity of, musj; be granted in good faith . 142 
 If an operator remains on duty in excess of 9 or 13 hours in a 24- hour period, 
 
 immaterial that he may not be engaged in continuous 152 
 
 Carriers' Reports of Excess 173 
 
 SHAKER RODS, Defective, not an excuse for excess service 169 
 
 "SHIMS," defined 87 
 
 SHOVEL CARS, Safety Appliance Acts apply to 47 
 
 SPECIFIC PERFORMANCE of contracts not to be enforced, to maintain 
 division point where continuance would preclude observance of Hours of 
 
 Service Act 217 
 
 STANDARD HEIGHT OF DRAWBARS: ^ee Drawbars. 
 STANDARDIZATION ORDER of the Commission, persuasive as to meaning 
 
 of Safety Appliance Acts 28 
 
 STATES 
 
 Interstate commerce consists essentially of commercial intercourse be- 
 tween 179 
 
 Interstate commerce comprehends traffic hauled from one point in a 
 State to another point in same State, passing en route through an- 
 other State or 180 
 
 Police power of, over instrumentalities of interstate commerce, may be 
 
 validly exercised consistently with provisions of fedeial Acts 189 
 
 Cars to which Safety Appliance Acts apply, so subject to their t^nns 
 
 while moving within single 48 
 
 statutes conflicting with valid federal Acts are void 187 
 
 STATUTES 
 
 modifying common law should be strictly construed 197 
 
 to be sensibly construed - 197 
 
 Courts in construing, may consult history of 196 
 
 ConBtruction of, out of place where unambiguous 194 
 
 Purpose of, exhibited in title and enacting clause 193 
 
 of States interfering with interstate commerce, void 187 
 
 need not be described in terms if sufficient facts are stated in declaration 
 
 to bring case within 231 
 
 Purpose of provisos ordinarily to restrain or modify enacting clauses of 211 
 
 not to be frittered away by judicial construction 197 
 
 Text of 
 
 Safety Appliance Act 
 
 of March 2, 1893 as amended April 1, 1896 237 
 
 of March 2, 1903 239 
 
 of April 14, 1910 240 
 
 Sundry Civil Act of March 4, 1911 [Excerpt] 243 
 
 Sundry Civil Act of June 28, 1902 [Reference to] 243 
 
 Hours of Service Act 246 
 
 Act to regulate commerce ]Excerpt] 248 
 
 Ash Pan Act 254 
 
 STATUTORY CONSTRUCTION, General rules of 192 
 
INDEX. 27^ 
 
 Pa«e. 
 STOPPAGE OF CAR, for repair, does not withdraw it from uses of interstate 
 
 commerce 181 
 
 STREET CAR COMPANIES: -See Electric Railways. 
 
 STUB PILOTS, Substitution of, for long pilots previously used, to install 
 
 automatic couplers, not a violation of Safety Appliance Acts 228 
 
 SUBSTITUTES P^OR HANDHOLDS, 
 
 Any reasonable, compliance with Safety Appliance Acts 85 
 
 Sufficiency of, a question for jury 208 
 
 SUDDEN ILLNESS may constitute an emergency within purview of Hours 
 
 of Service Act 172 
 
 SUPPLEMENTAL SERVICE of employees subject to Hours of Service Act, 
 
 to be computed as time on duty 126 
 
 SUPREME COURT OF DISTRICT OF COLUMBIA has jurisdiction of 
 
 actions under Safety Appliance and Hours of Service Acts 218 
 
 SWITCHES, Fatigue as truly a physical cause of accidents as open 119 
 
 SWITCHING MOVEMENTS, Safety AppUance Acts apply to 49 
 
 SWITCH TENDERS, using telephone for communication of train orders, 
 
 subject to proviso in section 2 of Hours of Service Act 153 
 
 TAKING OR RUNNING FOR WATER not an excuse for excess service 170 
 
 TELEPHONE AND TELEGRAPH 
 
 Levermen and switchtenders, using, for communication of train orders, 
 
 subject to provisions of section 2 of Hours of Service Act 158 
 
 Employees in train service may occasionally use, in cases of emergency. . . 157 
 
 TENDERS, Safety Appliance Acts apply to 47 
 
 TENDERS AND ENGINES to be counted as two cars in computing percent- 
 age of power brakes 66 
 
 TERMINAL, as used in Hours of Service Act, defined 163 
 
 TERMINAL INSPECTION of power brake equipment required 67 
 
 TERRITORIES, of United States, Safety Appliance Acts apply to traffic 
 
 hauled within 35 
 
 TESTIMONY, Positive, preferable to negative 206 
 
 See Evidence. 
 
 TOOLS, Duty of carriers to provide reasonably safe 232 
 
 TOWERMEN AND SWITCHTENDERS handling train orders by means of 
 
 telephone or telegraph, subject to proviso in section 2 of Hours of Service 
 
 Act 15S 
 
 TOWERS, OFFICES, PLACES AND STATIONS, as used in Hours of Service 
 
 Act, defined 143 
 
 See Places. 
 TRACK, Safety Appliance Acts prohibit use of couplers inoperative by reason 
 
 of curvature in 77 
 
 TRACKAGE AGREEMENT, Cars hauled by one carrier over tracks of another, 
 
 under, hauled "on the line " of operating carrier 34 
 
 TRAFFIC 
 
 hauled between points in same State, passing en route through portion of 
 
 another State, is interstate commerce 180 
 
 Congestion of, not an excuse for excess service 169 
 
 See Interstate Commerce. 
 
 TRAIN BAGGAGEMEN subject to Hours of Service Act 122 
 
 TRAIN BRAKE SYSTEMS: See Power Brakes. 
 
 TRAIN DISPATCHER'S OFFICE, Service of an operator at local station 
 
 as clearly within purpose of Hours of Service Act, as that of similar 
 
 employee in 15t 
 
280 INDEX. 
 
 Page. 
 
 TRAIN ORDERS, Hours of Service Act applies to all offices handling 144 
 
 See Orders. 
 TRAINS 
 
 defined 38 
 
 Delay in starting, not an excuse for excess service 169 
 
 Excess service not to be excused by delays ordinarily to be expected in 
 
 operation of 168 
 
 Meeting or passing, not an excuse for excess service 170 
 
 Safety Appliance Acts apply to all cars hauled in interstate 36 
 
 Use of handbrakes to secure safety of, not prohibited by Safety Appliance 
 
 Acts 66 
 
 "Order," as used in Hours of Service Act, comprehends any communica- 
 tion of information or instructions relative to movement of 145 
 
 See Revenue Trains; Work Trains. 
 
 TRIFLING INTERRUPTIONS to not break continuity of operation of 
 
 offices otherwise continuously operated 149 
 
 See Intermissions. 
 
 TRIP, Occurrence of excusable delay after departure of crew from terminal, 
 
 suspends operation of Hours of Service Act for given 165 
 
 TRUNK LINE RAILROADS, generally engaged in interstate commerce, 
 
 Courts may take judicial notice of 30 
 
 TWENTY-EIGHT HOUR LAW 
 
 Hours of Service Act distinguishable from 116 
 
 Violations of Hours of Service Act, Held more serious than those of 117 
 
 UNAVOIDABLE ACCIDENT defined 160 
 
 See Provisos. 
 
 UNBROKEN INTERVALS OF TIME "Continuous" and "Consecutive" 
 
 not restricted to 137 
 
 UNCERTAINTY in interpretation of statutes may sometimes be removed by 
 
 appropriate punctuation 194 
 
 UNITED STATES, Payment to, of penalties recovered under Safety Appli- 
 ance and Hours of Service Acts, does not render actions thereunder crimi- 
 nal prosecutions .- 20 
 
 See Government. 
 
 UNIT OF VIOLATION 
 
 of Safety Appliance Acts: Cars hauled in violation of statute 25 
 
 of Hours of Service Act: Employees remaining on duty in excess of per- 
 mitted periods 118 
 
 UNCOUPLING LEVERS: See Levers. 
 
 UNCOUPLING OPERATIONS, Provisions of Safety Appliance Acts that 
 men shall not be required to go between cars, apply to coupling as 
 well as to 68 
 
 UNLOADED CARS: See Empty Cars. 
 
 UNNECESSARY HAULING OF CHAINED UP CARS, not an excuse for 
 
 excess service 170 
 
 USE of each car in violation of Safety Appliance Acts, a separate violation . . 25 
 
 '^USED" 
 
 defined 37 
 
 of broader significance than "hauled " 38 
 
 See Actually Used; Commercially Used; Regularly Used. 
 
 VERDICT: See Directed Vhrdict. 
 
IKDEX. 281 
 
 VIOLATIONS 
 
 of Safety Appliance Acts: Page. 
 
 Knowledge not an element of 14 
 
 Inconvenience not an element of 15 
 
 Intention not an element of IS 
 
 Failures of employees to operate equipment, not 17 
 
 Whatever constitutes, in actions for personal injury, likewise viola- 
 tions in penal actions 12, 24 
 
 entail two penalties 24 
 
 Hauling of each car in defective condition, separate 25 
 
 not excused by diligence 13 
 
 not excused by carriers' custom 27 
 
 Operated handbrakes to insure safety of trains, not 66 
 
 Proviso in Act of 1910 has no retrospective application to previous. . 101 
 
 of Hours of Service Act: 
 
 Knowledge not an element of 113 
 
 Previous instructions to contrary not an element of 113 
 
 Held more serious than those of 28-hour law 117 
 
 If substantial, should not be satisfied by merely nominal penalties. . 118 
 
 Economical reasons alone can never justify 172 
 
 of Commission's Order requiring reports, punishable by penalty fixed by 
 
 section 20 of Act to regulate commerce 176 
 
 of statutory duty negligence per se 226 
 
 In order to bring case within purview of Acts, causal connection must be 
 
 established between injuries sustained and 231 
 
 WAITING FOR HELPER ENGINE not an excuse for excess service 171 
 
 WAITING FOR ORDERS, not an excuse for excess service 171 
 
 WATCHING ENGINES: ^ee Engine Watchmen. 
 WATER 
 
 Taking or running for, not an excuse for excess service 170 
 
 Injectors failing on account of warmth of, not an excuse for excess service. 169 
 WEATHER: 5ee Heat. 
 
 "WEEK," as used in Hours of Service Act, defined 159 
 
 WEIGHING of interstate cars, interstate commerce 183 
 
 WILLFUL intention to violate Acts, not an element of their violation 15 
 
 WITNESSES, Testimony of, not to be discredited on account of personal inter- 
 est 20* 
 
 See Evidence. 
 WORK TRAINS 
 
 Employees on, assembling logs for interstate shipment, engaged in inter- 
 state commerce 182 
 
 Application of Safety Appliance Acts to 37 
 
 WORN OUT COUPLERS, Safety Appliance Acts prohibit use of 76 
 
 WRECKS 
 
 not an excuse for excess service if preventable by diligence and foresight- . 171 
 
 excuse excess service of operators if occasioned by unavoidable causes 160 
 
 YARD MOVEMENTS, Safety AppUance Acts apply to 49 
 
 ZONE, Provisions of Safety Appliance Acts extend to Panama Canal 64 
 
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