delivered the opinion of the court.
Thе defendant in error, Rigsby, while in the employ of plaintiff in error as a switchman in its yard at Marshall, Texas, was engaged, with others of the yard crew, in taking some “bad order” cars to the shops there to be repaired. The switch engine and crew went upon a spur track, hauled out three cars, and switched them upon the main line, intending to go back upon the spur track for others, to be taken with the three to the shops, which were on the opposite side of the, main line from the spur track. Rigsby, in the course of his duties, rode upon the top of-ene of the cars (a box car) in order to set the brakes and stop them and hold them upon the main line. He did this, and while descending from the car to return to the spur track he fell, owing to a defect in one of the handholds or grab-irons that formed the rungs of the ladder, and sustained personal injuries. This car had been out of service and waiting on the track spur for some days, perhaps a month. Thе occurrence took place September .4, 1912. In an action for damages, based upon the Federal Safety Appliance Acts, 1 the above facts appeared without dispute, and it was admitted that the main line of defendant’s railroad was in daily use for the passage of freight and passenger trains'in interstate commerce. The .trial court instructed the jury," as matter of law, that they should return a verdict in favor of plaintiff, the only question submitted to them being the amount of the damages. The Railway Company excepted to this charge, and requested certain specific instructions based upon the theory that the car was out of service and marked “bad order,” which was notice to Rigsby of its condition; that there was no evidence that the condition of the car-had resulted from any *37 negligence of defendant; that it was at the time being taken to the shop for repairs; and that for these reasons рlaintiff could not recover. The instructions were refused, and exceptions taken. The resulting judgment was affirmed by the Circuit Court of Appeals. 222 Fed. Rep. 221.
It is insisted that Rigsby was not within the protection of the Act because he was not coupling or uncoupling cars at the time he was injured. The reference is to § 4 of thе act of March 2, 1893, which requires “secure grab-irons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars.” This action was not based upon' that provision, however, but upon § 2 of the amendment of 1910, which declares: “All cars must be equipped with secure sill steрs and efficient hand brakes; all cars requiring secure ladders and secure running boards shall be equipped with such ladders and running boards, and all cars having ladders shall also be equipped with secure handholds or grab irons on their roofs at the tops of such ladders.”. There can be no question that a box car having а handbrake operated from the roof requires also a secure ladder to enable the employee to safely ascend and descend, and that the provision quoted was intended for the especial protection of employees engaged in duties such as that which plaintiff was pеrforming.
It .is earnestly insisted that Rigsby, was not uhder the protection of the Safety Appliance Acts because at the time he was injured he was not engaged in interstate commerce. By § 1 of the 1903 amendment its provisions and requirements and those of the act of 1893 were made to apply “to all trains, locomоtives, tenders, cars, and similar vehicles used'on any railroad engaged in interstate commerce . . . and to all other locomotives, tenders, cars, and similar vehicles used in connection therewith,” subject to an exception not now pertinent. And by § 5 of the 1910 amendment the provisions of the previous aсts
*38
were made to apply to that act, with a qualification that does not affect the present case. In
Southern Ry
v.
United States,
It is argued that' the authority of that case goes no further than to sustain .the penal provisions of the Act,
*39
and does not uphold a right of action by an employee injured through a violation of its provisions, unless he was engаged in interstate commerce. That the scope of the legislation is broad enough to include all employees thus injured, irrespective of the character of the commerce in which they are engaged, is plain. The title of the Act, repeated in that of each supplement, is general: “An act to promote the. safety of employees and travelers,” etc.; and in the proviso to § 4 of the supplement of 1910 there is a reservation as to “liability in any remedial action for the death or injury of any railroad employee.” None of the Acts, indeed, contains express language conferring a right of action for the death or injury of an employee; but the safety of employees and travelers is their principal object, and the right of private action by an injured employee, even without the Employers’ Liability Act, has never been doubted. (See
Johnson
v.
Southern Pacific Co.,
Plaintiff’s injury was directly attributable to a defect in an appliance which by the 1910 amendment was required to be secure, and the Act must therefore be deemed to create a liability in his favor, unless it be beyond the power of Congress under the commerce clause of the Constitution to create such a liability in favor оf one not employed in interstate commerce. In
Ill. Cent. R. R.
v.
Behrens,
*41 The doing of plaintiff’s wdrk, and his security while doing it, cannot be said to have been wholly Unrelated to. thе safety Of the main track as a highway of interstate commerce; for a failure to set the brakes so as temporarily to hold the “bad order” cars in place on that track would have been obviously dangerous to through traffic; while an injury to the brakeman had a tendency to cause delay in cleаring the main line for such traffic. Perhaps upon the mere ground of the relation of his work to the immediate safety of the main track plaintiff’s right of action might be sustained.
But we are unwilling to place the decision upon so narrow a ground, because we are convinced that there is no constitutional obstacle in the way of giving to the Act in its remedial aspect as broad an application as was accorded to its penal provisions in
Southern Railway
v.
United States, supra.
In addition to what has been quoted from the opinions in that case and the
Behrens Case,
the following considerations are pertinent. In the exercise of its plenary power to regulate commerce between the States, Congress has deemed it proper, for the protection of employees and travelers, to require certain safety appliances to be installed upon railroad cars used upon a highway of interstate commerce, irrespеctive of the use made of any particular car at any particular time. Congress having entered this field of regulation, it follows from the paramount character of its authority that state regulation of the subject-matter is excluded.
Southern Ry.
v.
R. R. Comm., Indiana,
It is argued that the statute does not apply except where the car is in use in transportation at the time of the injury to the employee, and that since it does not appear that thé car in question was in bad order because of any negligence on the part of the railway company,
*43
and it was being taken to the shop for repairs at the time of the accident, there is no liability for injuries to an employee who had notice of its bad condition and was engaged in the very duty of taking it to the shop. This is sufficiently answered by our recent decision in
Great Northern Ry.
v.
Otos,
Of course, the employee’s knowledge of the defect does not bar his suit, for by § 8 of the Act of 1893 an employee injured by any car in use contrary to the provisions of the act is not to be deemed to have assumed the risk, although continuing in the employment of the carrier after the unlawful use of the car has been brought to his knowledge; and by § 5 of the Act of 1910 the provisions of the 1893 act are made applicable to it, with a qualification that does not affect remedial actions by employees
The Circuit Court of Appeals correctly disposed of the case, and its judgment is
Affirmed.
Notes
Act of March 2, 1893, c. 196; 27 Stat. 531; amendatory act' of March 2, 1903,"c. 976; 32 Stat. 943; supplementary act of April 14, 1910, c.' 160; 36 Stat, 298.