222 F. 221 | 5th Cir. | 1915
Lead Opinion
It follows that the judgment should be affirmed; and it is so ordered.
Dissenting Opinion
(dissenting). The first section <?f the act of March 2, 1893 (27 Stat. at Large, c. 196, p. 531), provides that after the 1st'day of January, 1898:
“It shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped witbi a power-driving * * * brake and appliances * * * operating the train-brake system,” etc.
Section 2 of the same act provides that after the same date:
“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 the cars.”
Section 4 of the same act providing for safety appliances, grabirons, etc., provides that:
“It shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grabirons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars.”
It vas these provisions that were under consideration in Southern Railway Co. v. United States, 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72, which was a case in which cars were hauled over a railroad engaged in interstate commerce, part of the cars involved being loaded with interstate traffic and part intrastate traffic, and all charged with having defective couplers. In that case the Supreme Court held that the original act, as enlarged by the amendatory one, is intended to embrace all locomotives, cars, and similar vehicles USED (capitals mine) on any railroad which is a highway of interstate commerce. The word “used” refers to use in moving interstate traffic, as well as in moving intrastate traffic, for just following, in considering the question of the constitutionality of the act as so interpreted, the court said:
“We come, then, to the question whether these acts are within the power of Congress under the commerce clause of the Constitution, considering that they are not confined to vehicles used in moving interstate traffic, but embrace vehicles used in moving intrastate traffic. The answer to this question depends upon another, which is: Is there a real or substantial relation or connection between what is required by these acts in respect of vehicles used in moving intrastate traffic and the object which the acts obviously are designed to attain, namely, the safety of interstate commerce and of those who are employed in its movement? Or, stating it in another way: Is there such a close or direct relation or connection between the two classes of traffic, when moving over the same railroad, as to make it certain that the safety of the interstate traffic and of those who are employed in Its movement will be promoted In a real or substantial sense by applying the requirements of these acts to vellidos used in moving the traffic which is intrastate as well as to those used in moving that which is interstate? If the answer to this question, as doubly stated, be in the affirmative, then the principal question must be answered in the same- way. And this is so, not because Congress possesses any power to regulate intrastate commerce as such, but because its power to regulate interstate commerce is plenary, and competently may be exerted to secure the safety of the persons and property transported therein and of those who are employed in such transportation, no matter what may be the source of the dangers which threaten it. That is to say, it is no objection to such an exertion of this power that the dangers intended to be avoided arise, in whole or in part, out of matters connected with intrastate commerce.” Southern Hallway Co. v. United States, 222 U. S. 20, 27, 82 Sup. Ct. 4, 56 L. Ed. 72.
In the Rigsby Case it is not proven nor claimed that the car in which Rigsby was injured was at the time being used in either interstate or intrastate traffic, or e.ven being used at all. The undisputed facts ap
Certainly, under the harshest view to be taken of the requirements of the act of Congress, to penalize the railroad the out-of-order or disabled car must be used on a railroad engaged in interstate commerce ; and in the Rigsby Case the question was whether the disabled car on which Rigsby was injured was at the time being used within the meaning and purview of the said act of Congress, and this under the evidence in the case was a question of fact which should have been submitted to the jury.
For error in directing the verdict, the case should be reversed.