kept in proper repair for use, and moreover as such was the law of the state, even if the act of congress had not specifically imposed this duty. The court said that in this ruling no right was specifically set up or claimed under the act of congress, and the writ of error was dismissed. 502. The act in the state courts.-As there is no exclusive jurisdiction vested by the act in the federal courts its effect is to create a new standard of duty and liability in interstate commerce, which is the law of the land both as to the federal and state courts. This was illustrated in the Schlemmer Case, supra, wherein the supreme court of Pennsylvania held that the plaintiff was barred from recovering by reason of his own contributory negligence, which was reversed by the supreme court of the United States on the ground that this ruling, which was in conformity with that enforced in the courts of the state in actions for personal injuries, was inconsistent with the rule of nonassumption of risk which was declared by the Safety Act and was applicable to the interstate employment wherein plaintiff was engaged. As this federal right was duly asserted in the case and denied a federal question was presented and the judgment of the state court was reviewable by the supreme court. See same case, second appeal, infra, § 523. § 503. Section 2 of the act. SECTION 2. 504. Coupler equipment under section 2. 507. An absolute duty imposed upon carriers by the act to provide and maintain automatic equipment. 508. When cars are in interstate commerce. § 503 (359). Automatic couplers.-SEC. 2. That on and after the first day of January, eighteen hundred and ninetyeight, 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 cars. § 504 (360). Coupler equipment under section 2.-The requirement of automatic couplers in section 2 was construed by the circuit court of appeals for the eighth circuit in Chicago, Milwaukee & St. Paul R. Co. v. Voelker, 129 Fed. 522, reversing 116 Fed. 867, decided March, 1904. The court said that the act of congress forbade the use of a coupler which required the operator to go between the ends of the cars to prepare the coupler for the impact. The preparation of the coupler for the impact is not distinct from the act of coupling. Both are connected with the indispensable parts of the larger act, which is regulated by the statute and the performance of which is intended to be released from unnecessary risk and danger. The court ruled that when an automatic car coupler had been permitted to become worn and defective so the lever would not lift the pin from the socket, and the knuckle could not be drawn open by leaning toward the coupler and using one hand, but required the presence of the operator's entire body between the ends of the cars and the draw bars and the use of both his hands, it failed to meet the requirements of the act and constituted actionable negligence. It was held in Briggs v. C., N. & W. R. Co., 125 Fed. 745 (1903), that when a railroad company in order to comply with section 2 of the act removed the long pilot from in front of the engine and substituted a shorter one in order to put the automatice coupler in front of the engine, an accident which could have been prevented by a long pilot does not make the company liable. § 505 (361). Automatic couplers of different makes.-The amendment of 1903 provides that the act shall apply in all cases whether or not the couplers brought together are the same kind, make or title, and the provisions and requirements relating to train brakes, automatic couplers, grab irons and the height of draw bars apply to all trains, locomotive tenders and cars, and similar vehicles used on any railroad in interstate commerce and saving those excepted by the act. In a suit brought prior to the amendment of 1903 it was held by the supreme court in Johnson v. Southern Pacific R. Co., 196 U. S. 1, 49 L. Ed. 363 (1904), reversing the circuit court of the eighth circuit in 117 Fed. 462, that the couplers required must be of such a nature and character that they must couple automatically and save the employes from going between the cars, and that the use of automatic couplers which did not couple automatically on the same train whether of the same make or not violated the act. As stated above however this requirement is now enforced by the amended statute of 1903. § 503 (362). The meaning of "car" in section 2.-In the same case the term "car" as used in section 2, which was held by a majority of the court of appeals, Thayer, J., dissenting, not to include locomotives, and that there was no language in the act which would make it unlawful to use in interstate commerce locomotive engines which were not equipped with automatic couplers. This ruling was reversed by the supreme court which held that the law must be construed with reference to the danger to employes which it sought to remedy, and that for the purposes of safety appliances, locomotives were cars within the meaning of the act and are required to be equipped with automatic couplers, and that it was even more necessary that locomotives should be so equipped than it was that freight, dining and passenger cars should be, since locomotives had occasion to make couplings more frequently. The word car was therefore used in a generic sense as including both the locomotive and its tender. In the Schlemmer Case, supra, the court reaffirmed the ruling of the Johnson Case and said that a shovel car attached to an interstate train was within the meaning of the statute as well as the locomotive, and that the words, "used in moving interstate traffic," should not be taken in a narrow sense; and the supreme court of Pennsylvania was held to have erred in holding that such a car was not within the meaning of the section. The court said the amendatory act of March 2, 1903, indicated the intent of the original act. § 507. An absolute duty imposed upon carriers by the act to provide and maintain automatic equipment.-An absolute duty to provide a car used in moving interstate traffic with automatic couplers and to maintain them in proper condition at all times and in all conditions is imposed upon interstate carriers by this act, which is not discharged by properly equipping the car with automatic couplers and using due diligence to keep them in good working order. This rule of absolute duty was definitely declared by the supreme court in a prosecution by the government for penalty for non-compliance with the act under section 6 of the act, C. B. & Q. R. Co. v. U. S., 220 U. S. 612, 55 L. Ed. (June, 1911), and also in private actions by employes for personal injuries sustained through the absence of defective conditions of the automatic couplers required by the act. St. L., I. & M. R. Co. v. Taylor, 210 U. S. 281, 52 L. Ed. 1061 (1909), and also in Delk v. St. L. & St. F. R. Co., 220 U. S. 617, 55 L. Ed. — (June, 1911). In the latter case the court reversed the judgment of the circuit court of appeals of the sixth circuit, 158 Fed. 931. The court said in the latter case that this absolute duty not only required the carrier to provide the automatic couplers, the kind prescribed by congress, but also an absolute duty to keep the cars in good order at all times. In this case the car had a defective coupler and the company had sent for the required appliances and would repair the car when it was received, but the court said the company could only use the car in this defective condition under the penalty of the law, and as the injury was suffered by the employe in attempting to force a coupling in this defective condition the company was liable. In this Delk Case the trial court had submitted the issue of contributory negligence to the jury which rendered a verdict for plaintiff. This was reversed by the circuit court of appeals and the case taken to the supreme court by writ of certiorari. The supreme court reversed the judgment of the circuit court of appeals and affirmed the judgment of the circuit court. § 508 (363). When cars are in interstate commerce.-Another important ruling was made in the Johnson case. The injury in this case was caused in coupling a freight engine with a dining car which had been detached from a through train, turned on the turn-table and was to be drawn by a freight engine to the turn-table, turned, and then moved to a side track to wait another through train moving in the opposite direction. As the car was standing empty on the side track when the plaintiff was injured, the majority of the court held that it was not engaged in interstate commerce, and therefore at the time of the accident the locomotive and dining car were not being used in moving interstate traffic within the meaning of the act. The supreme court in the case cited, and in the same opinion, reversed this decision, and held that the dining car, though empty and on a side track, was engaged in interstate commerce within the meaning of the act. In the Delk Case, supra, it was held by the supreme court that a freight car, loaded with interstate freight and placed on a side track in the railway yard at destination to await repairs to the automatic coupler, was used in moving interstate commerce within the meaning of the act when a coupling with another car is thereafter attempted by the carrier's order during the course of switching operations. Thus, it is immaterial whether the car is full or emptey. See Johnston v. Great Northern Railway Co., 178 Fed. 643, circuit court of appeals, eighth circuit (1910). In this case the cars were awaiting delivery on the switch track, and the company was held liable. See U. S. v. L. & N. R. R. Co., 186 Fed. 280, C. C. A., sixth circuit. In Southern Railway Co. v. Snyder, 187 Fed. 492, sixth circuit (1911), the court held that cars being hauled to a place of repair in an intrastate train composed only of such cars, or while on a repair track out of all connection with cars in commercial use, were not subject to the act, and that while a railroad could move empty cars by themselves to repair shops, yet in so moving them the cars must be wholly excluded from commercial use and from connection with other vehicles which were commercially used. The court, however, emphasized the duty of the carrier to exercise a high degree of diligence in discovering and repairing the defect in the coupler and withdrawing the car from commercial use while the defect existed. |