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.

MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court.

This case was brought here on certiorari, and also on writ of error, and will be determined on the merits, without discussing the question of jurisdiction as between the one writ and the other. Pullman's Car Company v. Transportation Company, 171 U. S. 138, 145.

The plaintiff claimed that he was relieved of assumption of risk under common law rules by the act of Congress of March 2, 1893, 27 Stat. 531, c. 196, entitled "An act to promote the safety of employés 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."

The issues involved questions deemed of such general importance that the Government was permitted to file brief and be heard at the bar.

The act of 1893 provided:

"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."

"SEC. 2. 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 traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars."

"SEC. 6. 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 liable to a penalty of one 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 jurisdiction in the locality where such violation shall have been committed, and it shall be the duty of such district attorney to bring such suits upon duly verified information being lodged with him of such violation having occurred."

"SEC. 8. That any employé of any such common carrier who may be injured by any locomotive, car, or train in use 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."

The Circuit Court of Appeals held, in substance, Sanborn, J., delivering the opinion and Lochren, J., concurring, that the locomotive and car were both equipped as required by the act, as the one had a power driving-wheel brake and the other a coupler; that section 2 did not apply to locomotives; that at the time of the accident the dining car was not "used in moving interstate traffic;" and, moreover, that the locomotive, as well as the dining car, was furnished with an automatic coupler so that each was equipped as the statute required if section 2 applied to both. Thayer, J., concurred in the judgment on the latter ground, but was of opinion that locomotives were included by the words "any car" in the second section, and that the dining car was being "used in moving interstate traffic."

We are unable to accept these conclusions, notwithstanding the able opinion of the majority, as they appear to us to be inconsistent with the plain intention of Congress, to defeat the object of the legislation, and to be arrived at by an inadmissible narrowness of construction.

The intention of Congress, declared in the preamble and in

sections one and two of the act, was "to promote the safety of employés 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," those brakes to be accompanied with "appliances for operating the train-brake system;" and every car to be "equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars," whereby the danger and risk consequent on the existing system was averted as far as possible.

The present case is that of an injured employé, and involves the application of the act in respect of automatic couplers, the preliminary question being whether locomotives are required to be equipped with such couplers. And it is not to be successfully denied that they are so required if the words "any car" of the second section were intended to embrace, and do embrace, locomotives. But it is said that this cannot be so because locomotives were elsewhere in terms required to be equipped with power driving-wheel brakes, and that the rule that the expression of one thing excludes another applies. That, however, is a question of intention, and as there was special reason for requiring locomotives to be equipped with power driving-wheel brakes, if it were also necessary that locomotives should be equipped with automatic couplers, and the word "car" would cover locomotives, then the intention to limit the equipment of locomotives to power driving-wheel brakes, because they were separately mentioned, could not be imputed. Now it was as necessary for the safety of employés in coupling and uncoupling, that locomotives should be equipped with automatic couplers, as it was that freight and passenger and dining cars should be, perhaps more so, as Judge Thayer suggests, "since engines have occasion to make couplings more frequently."

And manifestly the word "car" was used in its generic There is nothing to indicate that any particular kind

sense.