Argument for the United States. 196 U.S. It is significant that notwithstanding the opposing argument as to engines, this engine was properly equipped; the dining car was in reality the offending thing. No engine of the company at this time, either passenger or freight, was furnished with a Miller hook. This in itself sharply accentuates the necessity for construing the law to include engines, and the plain duty of supplying interchangeable appliances between engines and ordinary cars. The act of March 2, 1903, which extended the provisions of the act of 1893 relating to automatic couplers, etc., to apply to trains, locomotives, and tenders, did not change or enlarge the earlier law, but should be viewed as a legislative construction and merely declaratory thereof. United States v. Freeman, 3 How. 556; Stockdale v. Insurance Co., 20 Wall. 323; Koshkonong v. Burton, 104 U. S. 668; Cope v. Cope, 137 U. S. 682; Bailey v. Clark, 21 Wall. 284. The provision that the act of 1903 should not take effect until six months after its passage does not weaken this argument, because the suspension evidently related to the new features introduced into the law as to the minimum number of cars in a train to be operated by train brakes. The suspension did not affect a case arising under the original law and involving the meaning of the word "car" or the scope of the automatic coupling requirement, because it was specifically provided by the later act that nothing therein contained should be construed to relieve any common carrier from the liabilities or requirements of the act of 1893. At the very least some cars must have been equipped as directed by the act of 1893, and the act of 1903 was not intended to operate as a further extension of time as to them. Did the act of 1903 mean that until September 1 of that year it was not necessary to equip passenger and freight cars with couplers "coupling automatically by impact, etc.?" The requirement of the law was not complied with by the equipment with couplers which would couple automatically by impact with others of their own type, but which were not 196 U. S. Argument for the United States. interchangeable with those actually presented. The test of compliance is in the words "without the necessity of men going between the ends of the cars." The loss of life and injuries to railroad employés due to the old link and pin couplings, and especially to the combination of these with patent couplings not working together, and the dilemma as to interchanges of automatic couplers of different types, were clearly in the mind of Congress at the time of the passage of the act of 1893, as appears from an examination of the messages of the President for the years 1889-1892 and from the reports of Senate and House committees and the debates upon the bill. These are proper to refer to in order to show the situation as it existed and was pressed upon the attention of Congress. American Net: & Twine Co. v. Worthington, 141 U. S. 468; Holy Trinity Church v. United States, 143 U. S. 457; Dunlap v. United States, 173 U. S. 65; Downes v. Bidwell, 182 U. S. 244. The result was that Congress passed an act in which ample provision was made to cover the difficulty and to compel the railroads, whatever particular devices they respectively adopted, to act with such degree of uniformity that the danger should be eliminated by the principle of interchangeability. The act is remedial and should be liberally construed. Taylor v. United States, 3 How. 197; Clicquot v. United States, 3 Wall. 114; United States v. Hodson, 10 Wall. 395; Smythe v. Fiske, 23 Wall. 374; United States v. Stowell, 133 U. S., 12. Even if it should be conceded that the act is penal in a strict sense, yet it should not be construed so strictly as to defeat the intention of Congress; the construction should be fair and reasonable, so as to effectuate the law rather than destroy it, and to avoid absurd and unjust results. United States v. Lacher, 134 U. S. 624; United States v. Wiltberger, 5 Wheat. 76; and cases cited on brief of plaintiff in error. But the act is not strictly penal; it is hardly penal at all; it simply imposes a moderate fine, which is to be recovered in a "suit"-that is, a civil action. Atcheson v. Everitt, 1 Cowp. 382; Ketland v. The Cassius, 2 Argument for Defendant in Error. 196 U. S. Dall. 365; United States v. La Vengeance, 3 Dall. 297; The Sarah, 8 Wheat. 394. The clause "without the necessity of men going between the ends of the cars" applies to the act of coupling as well as uncoupling. Chicago, Milwaukee & St. Paul Ry. Co. v. Voelker, 129 Fed. Rep. 522; Carson v. Southern Ry. Co., 46 S. E. Rep. 525. The car was "used in moving interstate traffic," regularly and continuously, as the evidence shows. That phrase of the act does not refer merely to a single trip, nor contemplate that a car shall be actually moving on an interstate journey at the particular moment, but that it shall be ordinarily or customarily employed in that manner, as was the car in question. There is nothing to show that the car was empty; on the contrary, the necessary presumptions are the other way. The statute applies to all cars, whether empty or loaded, and whether temporarily delayed or actually en route, which are "used" in interstate commerce. Malott v. Hood, 99 Ill. App. 630; Kelley v. Rhoads, 188 U. S. 1, and cases cited by plaintiff in error. Mr. Maxwell Evarts, with whom Mr. Martin L. Clardy and Mr. Henry G. Herbel, were on the brief, for respondent and defendant in error: The dining car was not an interstate car, while it had been in such use and might be thus used again. When it was not so used it maintained its local character and did not come under the act. The mere intention to make a commodity a subject of interstate commerce does not of itself impress the article with that character. Norfolk &c. Ry. v. Commonwealth, 93 Virginia, 749, 752; Coe v. Errol, 116 U. S. 517; Turpin v. Burgess, 117 U. S. 504, 507; Morgan Co. v. Louisiana, 118 U. S. 455, 465; Smith v. Alabama, 124 U. S. 465, 482; Kidd v. Pearson, 128 U. S. 1, 20; Pullman Co. v. Pennsylvania, 141 U. S. 18, 25; Postal Tel. Co. v. Adams, 155 U. S. 688, 698; Adams Express Co. v. Ohio, 165 U. S. 194; American Ref. 196 U.S. Argument for Defendant in Error. Trans. Co. v. Hall, 174 U. S. 70; Diamond Glue Co. v. U. S. Glue Co., 187 U. S. 611, 616; Diamond Match Co. v. Ontonagon, 188 U. S. 82; United States v. Boyer, 85 Fed. Rep. 432; Cotting v. Stock Yards Co., 82 Fed. Rep. 839, 844; S. C., 183 U. S. 79; Chi., St. P. &c. Ry. v. Becker, 35 Fed. Rep. 883; Union Ref. & Trans. Co. v. Lynch, 18 Utah, 378; Winkley v. Newton, 67 N. H. 80. When the commodity has actually started the interstate commerce feature commences. The Daniel Ball, 10 Wall. 557, 565. There is a distinction between the commodity and the vehicle. The character of the vehicle must be determined by the destination of the commodity with which it is burdened; or, if empty, the purpose for which the train, of which it forms. a part, is being moved at the time of the alleged injury. In other words, it must either be loaded with interstate freight or actually be a part of a train which is moving on an interstate mission. The mere intention. to use an isolated car standing in a railroad yard for that purpose is insufficient to give it an interstate character. There is nothing in the car itself to indicate its character; but, chameleon like, it changes its hue according to the use to which it is put at any particular time. Railway Gross Receipts Case, 15 Wall. 284, 294; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365, 374. See analogous ruling in Munn v. Illinois, 94 U. S. 113, 135, as to warehouses. The statute must be strictly construed. The rule of liberal construction of remedial statutes does not apply. Where a statute creates a liability, where none existed before, it must be strictly and literally construed. Sutherland on Stat. Construction, § 371. There was no duty on the railroad company to equip its engines with automatic couplers under the common law. When language is clear it needs no construction. Yerke v. United States, 173 U. S. 439; Thornley v. United States, 113 U. S. 310, and words are to be construed according to their popular sense. Millard v. Lawrence, 16 How. 251, 261. See Argument for Defendant in Error. 196 U. S. also Bryce v. Burlington &c. Ry. Co., 119 Iowa, 274; Lake County v. Rollins, 130 U. S. 662, and cases cited on p. 670; United States v. Reese, 92 U. S. 214, 220. The engine is not within the statute. A penal statute cannot be construed by equity to extend to cases not within the correct and ordinary meaning of the expressions of the law. United States v. Harris, 177 U. S. 309; Sarlls v. United States, 152 U. S. 575; United States v. Sheldon, 2 Wheat. 119, 122. The policy of the Government does not necessarily call for a liberal construction of the act. Hadden v. Collector, 5 Wall. 107, 111; St. Paul &c. Ry. v. Phelps, 137 U. S, 528, 536. The amendatory act of 1903, 32 Stat. 943, shows that the act originally did not include engines. Neither the engine nor dining car were at the time instruments of interstate commerce, The Daniel Ball, 10 Wall. 557; Chi., St. P. &c. Ry. v. Becker, 35 Fed. Rep. 883. The interstate commerce act does not apply. It is a penal statute and fails to reach this case. United States v. Harris, 177 U. S. 305, 309; Sarlls v. United States, 152 U. S. 570. Plaintiff assumed the risk. Railway v. Smithson, 45 Michigan, 212, 220; Hodges v. Kimball, 44 C. C. A. 193; Whitcomb v. Oil Co., 153 Indiana, 513, 519; Boland v. Railway, 106 Alabama, 641; Kohn v. McNulta, 147 U. S. 238. Plaintiff's contributory negligence was such as to bar this action. San Antonio Traction Co. v. De Rodriquez, 77 S. W. Rep. 420; Houston &c. Ry: v. Martin, 21 Tex. Civ. App. 207; Denver & R. G. Ry. Co., v. Arrighi, 129 Fed. Rep. 347; Norfolk &c. Ry. v. Emmert, 83 Virginia, 640, 645; Brooks v. Railway Co., 47 Fed. Rep. 687; So. Ry. Co. v. Arnold, 114 Alabama, 183, 189; Cleary v Railway Co., 66 N. Y. Supp. 568. As plaintiff admitted he had been furnished with written rules by the company and had read and was familiar with them, his breach thereof precluded him from recovering for his injuries. Fluhrer v. Railway, 121 Michigan, 212; Platton v. So. Ry., 49 C. C. A. 571; Erie Ry. v. Kane, 55 C. C. A. 129; K. &c. Ry. v. Dye, 16 C. C. A. 604. |