187 F. 492 | 6th Cir. | 1911
(after stating the facts as above). The record presents the auestion whether the federal safety appliance statutes (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174], and Act March 2, 1903, c. 976, 32 Stat. 943 [U. S. Comp. St. Supp. 1909, p. 1144]) apply to all cars of an interstate carrier by railroad which makes no classification of its cars between interstate and intrastate traffic, but uses such cars without discrimination and interchangeably in both classes of traffic, and without reference to whether a car is or is not, at the time of the alleged violation, actually engaged in or used in connection with an interstate movement of traffic, and whether the act, if construed to so apply, is constitutional.
The question now presented has been passed upon in but few cases. The nearest approach to a decision of the question which lias been made by the Supreme Court is found in Johnson v. Southern Pacific Ry. Co., 196 U. S. 1, 22, 25 Sup. Ct. 158, 49 L. Ed. 363, where it was held that a dining car regularly engaged in interstate traffic does not cease to be so engaged -when waiting for a train to make the next or return trip; the court saying (through Chief Justice Fuller):
“It (the ear) was being regularly used in the movement of interstate traffic and so within the law.”
The dining car in question in the Johnson Case had, in fact, been used only in interstate business, and was awaiting its return trip.
In Wabash R. R. Co. v. United States, 168 Fed. 1, 93 C. C. A. 393, the Circuit Court of Appeals for the Seventh Circuit held that a car belonging to a railroad engaged in interstate commerce, and which cal-is customarily and generally employed in moving interstate traffic, is subject to the federal safety appliance act. This holding was made in a case heard upon demurrer, the effect of which was to admit that r
“The defective car was not part of an interstate train, was not itself being moved on an interstate journey, and was not exclusively devoted to the carriage of commodities in interstate traffic.”
Judge Seaman dissented from the judgment of the court, upon the ground that the statute so construed would be unconstitutional. Several decisions have been made by District Courts recognizing the proposition asserted in Wabash Ry. Co. v. United States, supra, although in some at least of these cases the proposition decided in the Wabash Case seems not to have been necessary to the decision actually made. See United States v. Great Northern Ry. Co. (D. C.) 145 Fed. 438; Kelly v. Great Northern Ry. Co. (C. C.) 152 Fed. 211; United States v. Chicago & N. W. Ry. Co. (D. C.) 157 Fed. 616; United States v. Southern Ry. Co. (D. C.) 164 Fed. 347; Hohenleitner v. Southern Pacific R. R. Co. (C. C.) 177 Fed. 796; United States v. St. Louis, I. M. & S. R. Co. (D. C.) 154 Fed. 516.
We also think the trial judge erred in making the subjection of the car to the act depend, not upon the commercial use of the car or upon its use in connection with vehicles themselves in commercial use, in switchyards or elsewhere, but solely because used at all on the road, even if wholly withdrawn from commercial use. The learned judge seems to have treated the car as in use, within the meaning of the act. if unnecessarily and improperly removed from the Coster yards for the purpose of repair. Assuming that the car was generally subject to the safety appliance act, it is clear that it was defendant’s duty to exercise a high degree of diligence in discovering and repairing the defect in the coupler, and in withdrawing the car from commercial use while such defect existed.
But the court did not, in our opinion, err in refusing to instruct a verdict for defendant. Plaintiff’s declaration alleges that the cars between which plaintiff was caught and injured “were in use, and had been in common and regular use, upon the lines of road of the- defendant engaged in moving and transporting interstate commerce and’ traffic, and that they were at the time of said accident being used in connection with other cars of the defendant in the making up and distribution of trains for the purpose of transporting and moving interstate commerce and traffic over the defendant’s said line of railroad.” The car in question is thus, in substance, alleged to have been itself actually engaged at the time in interstate traffic, and to have been in use at the time in connection with vehicles so engaged.
Although the injury did not occur while the car was in a train bound for Lenoir City, but while employed in switching and transfer operations, there was testimony tending to show that it had not been withdrawn from connection with cars commercially employed. Unless so withdrawn, the car, if otherwise subject to the act, would not be relieved therefrom by its own withdrawal from commercial use. There was also testimony tending to show that the car in question was at the time of the accident employed in connection with cars engaged in interstate traffic, and thus made subject to the act, even if not itself a car engaged in such interstate commerce. The testimony tended to show that the car was, through the fault of the defendant, placed on the transfer track in question; that this track was used without discrimination for both state and interstate traffic in connection with the making up and unmaking of trains; that on this track at the time were cars employed in commerce generally, as well as cars actually engaged in interstate commerce, whose movement in fact precipitated the collision and consequent injury to plaintiff.
For other eases see same topic & § eumbish in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes