(B.) STATUTES OF THE STATES AND TERRITORIES.

CASES ADJUDGED

IN THE

SUPREME COURT OF THE UNITED STATES,

AT

OCTOBER TERM, 1904.

JOHNSON v. SOUTHERN PACIFIC COMPANY.
SAME v. SAME.

ERROR AND CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

Nos. 32, 87. Argued October 31, 1904.-Decided December 19, 1904.

1. Statutes in derogation of the common law and penal statutes are not to be construed so strictly as to defeat the obvious intention of Congress as found in the language actually used according to its true and obvious meaning.

2. Locomotive engines are included by the words "any car" contained in the second section of the act of March 2, 1893, 27 Stat. 531, c. 196, requiring cars engaged in interstate commerce to be equipped with automatic couplers. And although they were also required by the first section of the act to be equipped with power driving wheel brakes, the rule that the expression of one thing excludes others does not apply, inasmuch as there was a special reason for that requirement and in addition the same necessity for automatic couplers existed as to them as in respect to other

cars.

3. A dining car regularly engaged in interstate traffic docs not cease to be so when waiting for the train to make the next trip.

4. The equipment of cars with automatic couplers which will not automatically couple with each other so as to render it unnecessary for men to go between the cars to couple and uncouple is not a compliance with the law.

5. The act of March 2, 1903, 32 Stat. 943, c. 97b, treats as correct the view herein expressed and is declaratory thereof.

VOL. CXCVI-1

(1)

Argument for Plaintiff in Error.

196 U. S.

JOHNSON brought this action in the District Court of the First Judicial District of Utah against the Southern Pacific Company to recover damages for injuries received while employed by that company as a brakeman. The case was removed to the Circuit Court of the United States for the District of Utah by defendant on the ground of diversity of citizenship.

The facts were briefly these: August 5, 1900, Johnson was acting as head brakeman on a freight train of the Southern Pacific Company, which was making its regular trip between San Francisco, California, and Ogden, Utah. On reaching the town of Promontory, Utah, Johnson was directed to uncouple the engine from the train and couple it to a dining car, belonging to the company, which was standing on a side track, for the purpose of turning the car around preparatory to its being picked up and put on the next west-bound passenger train. The engine and the dining car were equipped, respectively, with the Janney coupler and the Miller hook, so called, which would not couple together automatically by impact, and it was, therefore, necessary for Johnson, and he was ordered, to go between the engine and the dining car, to accomplish the coupling. In so doing Johnson's hand was caught between the engine bumper and the dining car bumper and crushed, which necessitated amputation of the hand above the wrist.

On the trial of the case, defendant, after plaintiff had rested, moved the court to instruct the jury to find in its favor, which motion was granted, and the jury found a verdict accordingly, on which judgment was entered. Plaintiff carried the case to the Circuit Court of Appeals for the Eighth Circuit and the judgment was affirmed. 117 Fed. Rep. 462.

Mr. W. L. Maginnis, with whom Mr. L. A. Shaver and Mr. John M. Gitterman were on the brief, for petitioner and plaintiff in error:

The act of Congress of March 2, 1893, in as far as it aims to protect the lives and limbs of men, is remedial in its character,