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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


3. A dining car regularly engaged in interstate traffic does 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. 976, treats as correct the view herein expressed and is declaratory thereof.



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,

196 U. S.

Argument for Plaintiff in Error.

and should be so construed as to prevent the mischief and advance the remedy. C., M. & St. P. R. R. v. Voelker, 129 Fed. Rep. 522; Wall v. Platt, 48 N. E. Rep. 270; Holy Trinity v. United States, 143 U. S. 457; Potter's Dwarris on Statutes, 234; Brady v. Daly, 175 U. S. 156; Reed v. Northfield, 13 Pick. 94; Huntington v. Attrill, 146 U. S. 665; United States v. Lacher, 5 Wheat. 76; Am. Fur Co. v. United States, 2 Pet. 358; United States v. Morris, 14 Pet. 464; United States v. Reese, 92 U. S. 214; United States v. Hartwell, 6 Wall. 385; United States v. Winn, 3 Sumn. 209; United States v. Mattock, 2 Sawy. 148.

So construing the law, the word "car" must be held to be used in section 2 of said act in a generic sense and as embracing a locomotive or a tender as well as the other cars composing a train. This view is, moreover, sustained by definitions in the standard dictionaries and also by decisions of the courts. Fleming v. Southern R. R., 131 N. Car. 476; East St. Louis R. R. v. O'Hara, 150 Illinois, 580; K. C., M. & B. R. R. v. Crocker, 9 Alabama, 412; Thomas v. Ga. R. R., 38 Georgia, 222; New York v. Third Avenue R. R., 117 N. Y. 444, 646; Benson v. Railraod Co., 75 Minnesota, 163.

Locomotives and tenders fall within the reason of the law, as injury to or loss of life or limb of employés is as likely to occur in coupling or uncoupling a locomotive or tender as in case of cars of other descriptions. Winkler v. P. & R. R. R., 53 Atl. Rep. 90; S. C., 4 Pennywell, 384.

Even though the locomotive or tender is not to be construed as a car, under sec. 2, the dining car was not equipped so as to couple automatically by impact with the vehicle. it was intended to be coupled with, and was therefore not equipped as required by the act of Congress. B. & O. R. R. v. Baugh, 149 U. S. 378; Mobile v. Kimball, 102 U. S. 691.

The history of the act of Congress shows that its purpose was not to require cars to be maintained in a condition of equipment with automatic couplers, but rather to govern the equipments only at such times as it was necessary to couple them together. 5th Annual R. Inter. Com. Comm., 1891,

Argument for Plaintiff in Error.

196 U. S.

apx. G; 6th Annual R., 1892, 69; 7th Annual R., 1893, 76; 10th Annual R., 1896, 94; 16th Annual R., 1902, 61; The President's Annual Messages, 1889, 1890, 1891, 1892.

Automatic couplers were already in use when this act of Congress was passed, and the evils that were to be remedied were such as grew out of the want of interchangeability between different kinds of automatic couplers so that it is a solecism to say that the statute requires the use of automatic couplers.

Nor can such interpretation of the statute be justified by its practical operation because the railroads of the country, recognizing the necessity of regulations requiring coupling appliances to be interchangeable, had adopted such regulations as a condition of receiving cars. See address of Mr. Haines, Pres. Am. Ry. Assn., at Hotel Brunswick, N. Y., 1892, published in "American Railway Management."

A common carrier cannot be compelled to receive from, and transport for, a connecting line a car defective in safety appliances. Oregon Short Line &c. v. N. P. Ry. Co., 51 Fed. Rep. 465; Mich. Cong. Water Co. v. Railway Co., 2 I. C. C. Rep. 594; Railway Co. v. Curtis, 71 N. W. Rep. 42; Railroad Co. v. Snyder, 45 N. E. Rep. 559; Wilson v. Railroad Co., 129 Fed. Rep. 774 (citing Railroad Co. v. Wallace, 66 Fed. Rep. 506); Railroad Co. v. Mackey, 157 U. S. 72, 91; Felton v. Bullard, 94 Fed. Rep. 781.

Congress did not create a "coupler monopoly," because the adoption of a type merely prescribed a condition. See Report of Hearings before House Committee on Interstate and Foreign Commerce in relation to the bill for protection of trainmen, Feb. 18, 1892; Hearing before Senate Committee on Interstate Commerce, Feb. 10, 1892.

Before the enactment of the Safety Appliance Law the railroads had adopted a uniform interchangeable type of coupler. See proceedings of Master Carbuilders' Assn., 1887, 1888 and 1894; Massachusetts R. R. Repts. for 1884, 1886, 1888, 1891. The intent of the law is that the couplers actually used on

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Argument for Plaintiff in Error.

two cars must couple with each other automatically on impact. To hold that the phrase, "couplers coupling automatically by impact," means not couplers coupling with each other but with other couplers not used, is to do violence to the natural meaning of the words and to import into the statute language which will, to a large extent, render it nugatory. A construction of a law contrary to the obvious meaning of its language and which takes from under its operation a case clearly within its reason, should not be indulged.

Automatic couplers were already in use when the act of Congress was passed and the evils to be remedied were those growing out of the want of interchangeability between the different kinds of automatic couplers used rather than the absence of such couplers.

A phrase, "any car used in moving interstate traffic," embraces a car regularly employed in that business until permanently withdrawn. A car being used in interstate traffic between two termini, making trips back and forth, is employed in interstate traffic to the same extent while being turned or prepared for a return trip as when actually en route. Voelker v. C., M. & St. P. R. R., 116 Fed. Rep. 867; Pullman Car Co. v. Pennsylvania, 141 U. S. 19; Crawford v. N. Y. C. R. R., 10 Am. Neg. Rep. 166.

The construction by the court below of this phrase is too narrow and would result in a divided jurisdiction. Under it, while actually moving en route, the car would be subject to regulation by Congress, but when it reaches its destination and is being moved preparatory to its return, it will be subject to state regulation. Regulation cannot be in this way "split up." It must be wholly in Congress or wholly in the State. Hanley v. Kansas City Southern Ry. Co., 187 U. S. 620; Lord v. S. S. Co., 102 U. S. 541; Pacific Coast S. S. Co. v. R. R. Commissioners, 9 Sawyer, 253.

There is a distinction between a car or instrument used in moving interstate commerce and the commerce itself. A car used in interstate traffic is one thing and the point of time

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