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Argument for Plaintiff in Error.

196 U. S.

when the character of interstate commerce attaches to a commodity is another. Coe v. Errol, 116 U. S. 525, and others cited by defendants, distinguished.

The dining car was generally used in moving interstate commerce and such general use renders it subject to the Safety Appliance Act, although empty at the time of the accident. Voelker v. Railway Co., 116 Fed. Rep. 867, 873; Crawford v. Railroad Co., 10 Am. Neg. Rep. 166; The R. W. Parsons, 191 U. S. 17; The Old Natchez, 9 Fed. Rep. 476; The Daniel Ball, 10 Wall. 557; Delaware & Hudson Canal Co. v. Pennsylvania, 1 L. R. A. 232.

There is no distinction between a loaded car and an empty car, as Congress was dealing with a vehicle. Gibbons v. Ogden, 9 Wheat. 1; In re Lennon, 54 Fed. Rep. 746; Malott v. Hood, 99 Ill. App. 360; Winkler v. P. & R. R. R., 53 Atl. Rep. 90.

None of the three things laid down in Kelley v. Rhoads, 188 U. S. 1, which would take a car out of interstate traffic, to wit: an indefinite delay, (2) awaiting transportation at the commencement of the journey, (3) or waiting sale or delivery at the termination, existed in this case.

The use of the Miller hook with the Janney coupler, because it greatly increased the danger, was negligence, and should be left to the jury. Greenlee v. Ry. Co., 122 N. Car. 977, 982; Troxler v. Ry. Co., 124 N. Car. 191; Mather v. Rillston, 156 U. S. 391; Railway Co. v. Carlin, 111 Fed. Rep. 778; Dissenting opinion in Kilpatrick v. Railroad Co., 121 Fed. Rep. 16.

The question of contributory negligence was not considered either in the Circuit Court or the Circuit Court of Appeals; section 8 of the Safety Appliance Law expressly states that any employé injured by reason of defective equipment shall not be deemed to have assumed the risk. If there is any question of contributory negligence it should be left to the jury under proper instructions by the court. Greenlee v. Ry. Co., 122 N. Car. 977; Railroad Co. v. Ives, 144 U. S. 409; Carson v. Railroad, 46 S. E. Rep. 525.

The amendatory act of March 2, 1903, expressly providing,

196 U. S.

Argument for the United States.

amongst other things, that the car coupler provision of section 2 of the original act shall apply to locomotives and tenders as well as ordinary cars, is merely declaratory of the intent of Congress in the original act and is a legislative construction of that act.

The Attorney General and the Solicitor General for the United States:

The testimony shows that the engine "backed up" and the tender was therefore presented for the coupling. This is in accordance with common usage and ordinary observation in practical railroading. A tender is certainly a car; but either a locomotive or a tender is a car within the meaning of section 2 of the act of March 2, 1893. The generic meaning of "car" under the definitions and authorities includes engine and tender. Winkler v. P. & R. Ry. Co., 53 Atl. Rep. 90; East St. Louis Ry. Co. v. O'Hara, 150 Illinois, 580; K. C., M. & B. R. R. Co. v. Crocker, 9 Alabama, 412; Thomas v. Georgia R. R. &c. Co., 38 Georgia, 222; New York v. Third Ave. Ry. Co., 117 N. Y. 404. The fact that the first section. of the act requires a locomotive engine to be equipped with a power brake, and section 2 forbids the use of any car not equipped for coupling as directed, ought not to exclude the full import of the term car in the second section, when the general intent of Congress and the necessary and invariable use of an engine or tender to make couplings are regarded. Nor should the fact that part of the language of section 2 is restricted to the conception of something drawn by the traction power exclude the engine. The language is, "it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its lines," etc. Considering the evil and the remedy, the words "or used" ought to be viewed as intentionally enlarging the category so as to include an engine, which is of course more frequently used than any other vehicle of a train in moving traffic. Use is the word applied to an engine in the first section.

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.

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