and scarcely requires to be distinguished from the Gotschall or Caldwell Cases. The facts were these:

A number of cars were standing upon a track about two car lengths from five other cars on the same track. An engine, pushing one stock car ahead of it, came through the switch and attempted to couple by impact to these five cars. It struck with such force that the five loaded cars were driven over the intervening two car lengths of space, and collided so violently with the other cars standing on the track that the plaintiff, who was on one of the five cars for the purpose of releasing the brakes, was thrown to the ground and injured. The engine, with the stock car attached, stopped within a half a car length after the impact. The stock car failed to couple automatically with the five cars, as was contemplated by the switching movement, owing to the fact that the stock car was not equipped with automatic couplers which would couple by impact, as is required by the law.

The question discussed in the opinion is as to whether the failure to comply with the Safety Appliance Act was a proximate cause of the injury. Upon the facts as I have stated them, it is, as I have said, difficult to see any difference between them and the facts of the Gotschall Case or of the Caldwell Case. In the Gotschall Case the train broke in two, owing to a defective coupler, and Gotschall, being on that train in the performance of his duty, was thrown to the ground and injured. In the Caldwell Case the train likewise broke in two for the same reason, and Caldwell either was on or had ascended the runaway cars, and was trying to stop them when they collided with other cars, throwing him to the ground. In the Layton Case the injured employé was on one of the five cars for the purpose of releasing the brakes as a part of the hauling movement in contemplation at the time the effort to couple automatically was attempted.

Thus we see that the facts are quite narrow, and it also seems to me that the broad inference, drawn from the language used in the opinion, that an interstate carrier is liable under any and all circumstances to an injured employé working in and about a crippled car, cannot be sustained. Mr. Justice Clarke was distinguishing the narrow language which had been used in the Conarty Case. As a result of that language some members of the legal profession were asserting that the automatic coupling requirement was designed for the benefit and protection only of persons required to go between the cars to make couplings, and was not for the benefit and protection of employés in other situations, injured as a result of the failure to comply with such provisions. In view of the absolute duty thus to equip cars, and the absolute liability imposed for hauling cars not thus equipped, obviously all employés are and were intended to be within its beneficent provisions. It was this view that Mr. Justice Clarke was emphasizing, and his language is not to be taken as modifying the fundamental rule that a causal relation between the violation of the Safety Appliance Act and the employé's injuries must always exist.

That this was the Supreme Court's understanding of the decision in the Layton Case is made clear by its recent decision in Lang v.

(273 F.)

New York Central R. Co., 255 U. S., 41 Sup. Ct. 381, 65 L. Ed. - decided March 28, 1921. In this case the court's understanding of the Layton Case and of the rules of law under consideration is made much clearer by the dissenting opinion of Mr. Justice Clarke, concurred in by Mr. Justice Day. Plaintiff here, in effect, bases his right to recover upon the law stated in this dissenting opinion, and not upon the law, as I understand it, pronounced in the court's opinion. The Lang Case must be taken as controlling, not only because it is the latest expression of that court, the decisions of which we are bound to follow, but also because of the careful review of the earlier cases.

Upon the facts, the court say it is not in conflict with the Layton Case. Briefly stated, the facts were that at a place called Silver Creek there were some 11 cars in the yard upon a side track. The train crew, of which Lang was a member, had orders to pick up at Silver Creek one of these cars destined for Farnham, and, in the opinion, called the Farnham car. When Silver Creek was reached, the conductor of the train and Lang, one of the brakemen, on looking for the Farnham car, found it was practically in the middle of a string of 11 cars, one of which, next to it, was a car from which the drawbar was missing. In order to get out the Farnham car, it was necessary to pull out the six cars, of which the Farnham car was farthest from the end and next to the crippled car. This was done, and after the Farnham car had been set out upon the track, where it might later be picked up, the engine switched two of the remaining cars on the one side track, and kicked the three remaining cars back again onto the track from which they had been taken, and where the crippled car was standing. Lang, the brakeman, was on the rear end of that one of these three cars next to the crippled car, and had gotten there in the line of his duties for the purpose of setting the brakes and stopping it before it came into contact with the crippled car. Owing to some miscalculation, whether of a defective brake, or whether he failed to apply the brake soon enough, or some other cause not made apparent, the car upon which he was riding was not stopped as had been contemplated by him, but ran into and collided with the crippled car. He was standing with one foot down on the brake step, and, owing to the absence of the drawbar, the two cars came so close together that his leg was caught between the two, and he was so crushed that death resulted.

The question disputed was whether or not the case came within the Conarty or the Layton Case. On this point the Appellate Division of the Supreme Court of New York (187 App. Div. 967, 175 N. Y. Supp. 908) held that it came within the Layton Case. Upon appeal, the Court of Appeals (227 N. Y. 507, 125 N. E. 681) reversed the judgment of the trial court and of the Appellate Division, and directed the complaint be dismissed, because that court was of the opinion that it fell within the Conarty Case. The opinion of the United States Supreme Court, delivered by Mr. Justice McKenna, says:

"Two questions are hence presented for solution: (1) Was the Court of Appeals estimate of the Conarty Case correct? (2) Was it properly applied to Lang's situation?

"(1) The court's conclusion that the requirement of the Safety Appliance Act 'was intended to provide against the risk of coupling cars' is the explicit declaration of the Conarty Case. There, after considering the act and the cases in exposition of it, we said: 'Nothing in its provisions "gives any warrant for saying that they are intended to provide a place of safety between colliding cars. On the contrary, they affirmatively show that a principal purpose in their enactment was to obviate the necessity for men going between the ends of the cars." * * The case was concerned with a collision between a switch engine and a defective freight car, resulting in injuries from which death ensued. The freight car was about to be placed on (we quote from the opinion) ‘an isolated track for repairs, and was left near the switch leading to that track while other cars were being moved out of the way-a task taking about five minutes. At that time a switch engine with which the deceased was working came along the track on which the car was standing and the collision ensued.' The deceased was on the switch engine, and it was on its way to do some switching at a point some distance beyond the car and was not intended and did not attempt to couple it to the engine or to handle it in any way. Its movement was in the hands of others.'

"(2) That case. therefore, declares the same principle of decision as the Court of Appeals declared in this. and, while there is some difference in the facts, the difference does not exclude the principle. In neither case was the movement of the colliding car directed to a movement of the defective car. In that case the movement of the colliding car was at night, and it may be inferred that there was no knowledge of the situation of the defective car. In this case the movement of the colliding car was in the daytime, and the situation of the defective car was not only known and visible, but its defect was known by Lang. He therefore knew that his attention and efforts were to be directed to prevent contact with it. He had no other concern with it than to avoid it. 'It was not,' the trial court said, 'the intention of any of the crew [of the colliding car] to disturb, couple onto, or move the crippled car.' It was the duty of the crew. we repeat. and immediately the duty of Lang, to stop the colliding car and to set the brakes upon it. 'so as not to come into contact with the crippled car,' to quote again from the trial court. That duty he failed to perform, and, if it may be said that notwithstanding he would not have been injured, if the car collided with had been equipped with draw bar and coupler, we answer, as the Court of Appeals answered, 'Still the collision was not the proximate result of the defect'; or, in other words, and as expressed in effect in the Conarty Case, that the collision under the evidence cannot be attributable to a violation of the provisions of the law, 'but only that, had they been complied with, it [the collision] would not have resulted in the injury to the deceased.'"

Little or nothing can be profitably added by me. However, it may be said that the defective car might be regarded as in use, so as to bring it within the Safety Appliance Act. It was not standing on at dead track, or repair track, for the purpose of being hauled to a place of repair, or of being put into shape that it might thus be hauled. It was and had been mixed with sound cars and shifted about the yard from day to day preparatory to being unloaded. In this respect, the tacit assumption is that the defective car was hauled, or permitted to be hauled, or used, on the line of an interstate carrier. The decision is rested on the ground that there was no causal connection, in a legal sense, between the violation of the Safety Appliance Act and the injury. In this view the defect, as well as the presence of the defective car, was a condition of the injury, and not a proximate cause of the injury.

[2] Let us apply the rules of law and these authorities to the facts of this case. The defective car was standing with some six other cars

(273 F.)

on track 444. This was a storage track for crippled cars, upon which were placed cars found to be defective and in need of repair, and was used for no other purpose. They were removed from that track once or twice every 24 hours by a separate engine in a separate train to a repair shop some 2,000 or 3,000 feet distant. After crippled cars were thus placed on this dead track, it became and was necessary to make improvised couplings, by chains or otherwise, in order that they might thus be moved. The car in question was the second from the east end of a string of six, and had been placed there some time between 12 o'clock midnight and 6:30 in the morning of the accident, and some one, during the same period, had made a chain coupling of the car in question to the end car. Plaintiff's decedent, Newell J. McCalmont, was a car inspector, boss, or foreman. At some time during the forenoon of the day, some witnesses say about 8 o'clock and others about 10, he was making an inspection of these cars, accompanied by an assistant by the name of Joseph Robassi. It was a part of his duties to inspect these six cars, and it may be assumed that it was also a part of his duties either to make improvised couplings or to cure any defects or insufficiencies which might appear in such as were already made as a result of his inspection. Coming to the car in question, he observed to his assistant that there was too much slack in the chain coupling, and announced that they would go between the cars and correct it. At this juncture his assistant, Kobassi, called his attention to the fact that there were no blue flags out to protect the string of cars standing on this dead track; but, in disregard of this warning, the deceased proceeded with the work, giving instructions to his assistant to follow him. They went between the cars and were engaged in remaking the chain coupling, when another car, kicked onto this track from the yard, collided with the end of the string and crushed McCalmont between the two cars, causing his death.

The evidence is clear that this string of cars was not protected by a blue flag and that the colliding car was merely being set in upon this same track as the other cars had already been set there, and for the same purpose. The crew of the engine thus setting it in are not shown to be the crew or engine which would at some later period move these cars to the repair shop, and were not contemplating at the time moving the string of six cars, or, indeed, driving the car into contact with them. In other words, there is no evidence tending to show negligence under the federal Employers' Liability Act, but the plaintiff can recover, if at all, only because of the violation of the federal Safety Appliance Act. The rules of the company, introduced in evidence, bearing on the situation, are 26 and 723. Rule 26 provides:

"A blue flag by day and a blue light by night, placed at one or both ends of an engine, car, or train, indicate that workmen are under or about it; when thus protected, it must not be coupled to or moved. Workmen will display the blue signal, and the same workmen are alone authorized to remove them. Other cars must not be placed on the same track, so as to intercept the view of the blue signals without first notifying the workmen."

Rule 723 provides:

"The car inspector, in the absence of a foreman, will perform the same duties as the foreman in the district assigned to him. When inspecting or repairing cars, he must protect himself by displaying the blue signals as prescribed by rule 26."

It was these rules which the assistant, Robassi, had in mind when he called the attention of the decedent to the absence of a blue signal immediately before the decedent went between the cars.

Upon these facts, is it not true that the Wiles Case is controlling? It seems so to me. The duty of McCalmont is clear; its performance was easy. There was nothing to extenuate his negligence or to confuse his judgment. He knew, not only the imminent danger of the situation, but also how to avert it by complying with the rules of the employer. It was his negligence which was the moving cause of the accident. The condition of the defective car must, in the light of the Conarty and the Lang Cases, be regarded, at most, only as a condition and not as a proximate cause, of the accident. For a discussion of proximate as distinguished from remote cause, see Railroad Co. v. Keeves, 10 Wall. 176, 19 L. Ed. 909; Scheffer v. R. R. Co., 105 U. S. 249, 26 L. Ed. 1070.

In addition thereto, it does not seem to me that the car which caused the injury was in use within the meaning properly to be given to that word under the Safety Appliance Act. The defendant was not hauling it, or permitting it to be hauled or used, on its line. It had taken it out of use and placed it on a dead track, and the hauling or the movement of it from that dead track to the repair place, which is permitted to be done only at the risk of the defendant, had not yet begun and was not then in immediate contemplation. What McCalmont was doing was not so intimately associated with, or related to, that hauling or movement as to be practically a part of it. He was merely making a temporary repair to the car upon the dead track, so that at some future time it might thus be moved or hauled. The law does not forbid or prohibit work in or about a car upon a dead track, so as to put it into condition thus to be moved or hauled; nor does the law impose an absolute liability upon the interstate carrier for injuries sustained by one engaged in doing that kind of work. In that situation, and while doing that kind of work, the applicable law, it seems to me, would be the negligence rules provided by the federal Employers' Liability Act, and not the absolute liability of the Safety Appliance Act.

For the foregoing reasons, I am of opinion that defendant's motion should be granted. An exception is allowed plaintiff.