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The court held that it was a question for the jury whether the cars had been in fact withdrawn from commercial interstate use at the time of the injury to plaintiff.

In U. S. v. C. & N. W. R. Co., 157 Fed. 616, district court of Nebraska, it was held that under this act as amended in March, 1903, there was no room for distinction in a car actually engaged in interstate commerce and the hauling of one that is generally used therein, and that the hauling of an empty car from one state to another for purposes of repair was engaging in interstate commerce, and that an engine was a car within the meaning of the act. See also Wabash v. U. S., 168 Fed. 1, C. C. A., seventh circuit (1909), where the same ruling was made. In this case the court construed the word "used" as applying to all cars and trains operated over an interstate highway, whether they were operated between points in the same states or whether they were empty, or whether the traffic carried is interstate traffic or not. See also U. S. v. St. Louis, etc., Co., district court of Tennessee, 154 Fed. 516 (1906).

In Erie R. Co. v. Russell, 183 Fed. 722, the circuit court of appeals, second circuit (Dec., 1910), held that a car with a defective coupler billed for the repair shop which was not sent there. but was left on the track in ordinary use on the switching track to be repaired by the switchmen, and that car coupled to other cars were being "used" within the meaning of the statute; and where such a car, though empty, was brought into the station in an interstate train it was being used in interstate commerce, not only while being moved in the train but also while being. repaired in the yards. In an action to recover for death of a switchman killed in repairing the defective coupler, the question of whether the defective coupler was the proximate cause of his death was held properly submitted to the jury, as was also the question of contributory negligence, and the judgment for plaintiff was affirmed.

In Southern Ry. Co. v. U. S., decided Nov. 1911, it was held by the supreme court that the law applies to all equipment on a highway of interstate commerce, whether at the time the car is carrying state or interstate commerce, and that the act so construed was within the constitutional power of congress. See also U. S. v. Western & A. R. R. Co., 184 Fed. 336 (1910), Dist. Ct. N. D. of Georgia.

SECTION 3.

509. Section 3 of the act.

510. The use of defective cars forbidden.

§ 509 (364). When carriers may refuse to receive cars.SEC. 3. That when any person, firm, company, or corporation engaged in interstate commerce by railroad shall have equipped a sufficient number of its cars so as to comply with the provisions of section one of this act, it may lawfully refuse to receive from connecting lines of road or shippers any cars not equipped sufficiently, in accordance with the first section of this act, with such power or train brakes as will work and readily interchange with the brakes in use on its own cars, as required by this act.

§ 510 (366). The use of defective cars forbidden.-The prohibition of the statute is against the use, and not against the ownership of a car, defective in its required equipment. There is no right of recovery by a terminal railroad, which has been mulcted in damages in a suit by an employe for injuries sustained in handling a car, wanting in equipment, from the carrier company owning the car; as it was its duty to refuse to receive the defective car; and therefore it was so far a wrong doer that it could not recover over from the owning company. Union Stockyards of Omaha v. C. B. & Q. R. R. Co., 196 U. S. 217, 49 L. Ed. 453 (1905). This case did not arise under the Safety Act, but was decided under the common law principles, with reference to the duty of the carrier and the right of contribution in case of damages for neglect of duty.

SECTION 4.

§ 511. Section 4 of the act.

512. Construction section.

§ 511 (365). Grab irons and handholds.-SEC. 4. That from and after the first day of July, eighteen hundred and ninety-five, until otherwise ordered by the Interstate Commerce Commission, it shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grab irons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars.

§ 512. Construction of section.-In U. S. v. B. & O. R. R. Co., district court, W. D. of Virginia, November, 1910, 184 Fed. 94, the court held that this section was indefinite as to the number of handholds and as to the intended location thereof on the ends and sides of cars. It was not indefinite so far as it required handholds to be provided both on the ends and sides of cars, and that a yard engine used in interstate commerce was not equipped as required where no handholds were provided in the sides near the rear end of the tender, though the tender was equipped with a running board and an vncoupling level bar which ran nearly across the entir back of the tender and was so located and of such a character that it might serve as a handhold; it not appearing that the prenence n the handhold as required would not tend to greater security.

§ 513. Section 5 of the act.

SECTION 5.

514. The delegation of power sustained.

§ 513 (367). Standard height of drawbars for freight cars.— SEC. 5. That within ninety days from the passage of this act the American Railway Association is authorized hereby to designate to the Interstate Commerce Commission the standard height of drawbars for freight cars, measured perpendicular from the level of the tops of the rails to the centers of the drawbars, for each of the several guages of railroads in use in the United States, and shall fix a maximum variation from such standard height to be allowed between the drawbars of empty and loaded cars. Upon their determination being certified to the Interstate Commerce Commission, said Commission shall at once give notice of the standard fixed upon to all common carriers, owners, or lessees engaged in interstate commerce in the United States by such means as the Commission may deem proper. But should said association fail to determine a standard as above provided, it shall be the duty of the Interstate Commerce Commission to do so, before July first, eighteen hundred and ninety-four, and immediately to give notice thereof as aforesaid. And after July first, eighteen hundred and ninety-five, no cars, either loaded or unloaded, shall be use in interstate traffic which do not comply with the standard above provided for.

§ 514. The delegation of power sustained.-Legislative power is not unconstitutionally delegated to the American Railway Association and the Interstate Commerce Association by this section. St. Louis, I. M. & S. R. Co. v. Taylor, 210 U. S. 281, 52 L. Ed. 1061 (1907). The court said that whether or not legislative power was unconstitutionally delegated was a federal question which allowed a writ of error from the supreme court to the supreme court of Arkansas; but the court found that the legislative power was not unconstitutionally delegated, and that the state court erred in holding that under the section the draw bars of unloaded freight cars are required to be of uniform and standard height, but those of loaded cars need not be of a uni

*Note.-Prescribed standard height of drawbars: Standard-gauge roads, 341⁄2 inches; narrow-gauge roads, 26 inches; maximum variation between loaded and empty cars, 3 inches.

form height, provided that they did not vary from the three inches prescribed as the maximum permitting variation from the standard. The court also held that the statutory duty imposed upon the carriers in absolute terms by this section, of using in interstate commerce only such freight cars as comply with the standard fixed as the height for draw bars, is not discharged by furnishing cars constructed with draw bars of the standard height and by furnishing to competent inspectors and trainmen a sufficient number of metallic wedges or "shins" to use as occasion demands to raise to the legal standard draw bars lowered by the natural effect of proper use, reversing 83 Ark. 591.

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