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Argument for Plaintiff in Error.

and should be so construed as to prevent the mischief and advance the remedy. C., M. & St. P, R. R. v. Voelker, 129 Fed. Rep. 522; Wall v. Platt, 48 N. E. Rep. 270; Holy Trinity v. United States, 143 U. S. 457; Potter's Dwarris on Statutes, 234; Brady v. Daly, 175 U. S. 156; Reed v. Northfield, 13 Pick. 94; Huntington v. Attrill, 146 U. S. 665; United States v. Lacher, 5 Wheat. 76; Am. Fur Co. v. United States, 2 Pet. 358; United States v. Morris, 14 Pet. 464; United States v. Reese, 92 U. S. 214; United States v. Hartwell, 6 Wall. 385; United States v. Winn, 3 Sumn. 209; United States v. Mattock, 2 Sawy. 148.

So construing the law, the word "car" must be held to be used in section 2 of said act in a generic sense and as embracing a locomotive or a tender as well as the other cars composing a train. This view is, moreover, sustained by definitions in the standard dictionaries and also by decisions of the courts. Fleming v. Southern R. R., 131 N. Car. 476; East St. Louis R. R. v. O'Hara, 150 Illinois, 580; K. C., M. & B. R. R. v. Crocker, 9 Alabama, 412; Thomas v. Ga. R. R., 38 Georgia, 222; New York v. Third Avenue R. R., 117 N. Y. 444, 646; Benson v. Railraod Co., 75 Minnesota, 163.

Locomotives and tenders fall within the reason of the law, as injury to or loss of life or limb of employés is as likely to occur in coupling or uncoupling a locomotive or tender as in case of cars of other descriptions. Winkler v. P. & R. R. R., 53 Atl. Rep. 90; S. C., 4 Pennywell, 384.

Even though the locomotive or tender is not to be construed as a car, under sec. 2, the dining car was not equipped so as to couple automatically by impact with the vehicle it was intended to be coupled with, and was therefore not equipped as required by the act of Congress. B. & O. R. R. v. Baugh, 149 U. S. 378; Mobile v. Kimball, 102 U. S. 691.

The history of the act of Congress shows that its purpose was not to require cars to be maintained in a condition of equipment with automatic couplers, but rather to govern the equipments only at such times as it was necessary to couple them together. 5th Annual R. Inter. Com. Comm., 1891,

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apx. G; 6th Annual R., 1892, 69; 7th Annual R., 1893, 76; 10th Annual R., 1896, 94; 16th Annual R., 1902, 61; The President's Annual Messages, 1889, 1890, 1891, 1892.

Automatic couplers were already in use when this act of Congress was passed, and the evils that were to be remedied were such as grew out of the want of interchangeability between different kinds of automatic couplers so that it is a solecism to say that the statute requires the use of automatic couplers.

Nor can such interpretation of the statute be justified by its practical operation because the railroads of the country, recognizing the necessity of regulations requiring coupling appliances to be interchangeable, had adopted such regulations as a condition of receiving cars. See address of Mr. Haines, Pres. Am. Ry. Assn., at Hotel Brunswick, N. Y., 1892, published in "American Railway Management."

A common carrier cannot be compelled to receive from, and transport for, a connecting line a car defective in safety appliances. Oregon Short Line &c. v. N. P. Ry. Co., 51 Fed. Rep. 465; Mich. Cong. Water Co. v. Railway Co., 2 I. C. C. Rep. 594; Railway Co. v. Curtis, 71 N. W. Rep. 42; Railroad Co. v. Snyder, 45 N. E. Rep. 559; Wilson v. Railroad Co., 129 Fed. Rep. 774 (citing Railroad Co. v. Wallace, 66 Fed. Rep. 506); Railroad Co. v. Mackey, 157 U. S. 72, 91; Felton v. Bullard, 94 Fed. Rep. 781.

Congress did not create a "coupler monopoly," because the adoption of a type merely prescribed a condition. See Report of Hearings before House Committee on Interstate and Foreign Commerce in relation to the bill for protection of trainmen, Feb. 18, 1892; Hearing before Senate Committee on Interstate Commerce, Feb. 10, 1892.

Before the enactment of the Safety Appliance Law the railroads had adopted a uniform interchangeable type of coupler. See proceedings of Master Carbuilders' Assn., 1887, 1888 and 1894; Massachusetts R. R. Repts. for 1884, 1886, 1888, 1891. The intent of the law is that the couplers actually used on

196 U.S.

Argument for Plaintiff in Error.

two cars must couple with each other automatically on impact. To hold that the phrase, "couplers coupling automatically by impact," means not couplers coupling with each other but with other couplers not used, is to do violence to the natural meaning of the words and to import into the statute language which will, to a large extent, render it nugatory. A construction of a law contrary to the obvious meaning of its language and which takes from under its operation a case clearly within its reason, should not be indulged.

Automatic couplers were already in use when the act of Congress was passed and the evils to be remedied were those growing out of the want of interchangeability between the different kinds of automatic couplers used rather than the absence of such couplers.

A phrase, "any car used in moving interstate traffic," embraces a car regularly employed in that business until permanently withdrawn. A car being used in interstate traffic between two termini, making trips back and forth, is employed in interstate traffic to the same extent while being turned or prepared for a return trip as when actually en route. Voelker v. C., M. & St. P. R. R., 116 Fed. Rep. 867; Pullman Car Co. v. Pennsylvania, 141 U. S. 19; Crawford v. N. Y. C. R. R., 10 Am. Neg. Rep. 166.

The construction by the court below of this phrase is too narrow and would result in a divided jurisdiction. Under it, while actually moving en route, the car would be subject to regulation by Congress, but when it reaches its destination and is being moved preparatory to its return, it will be subject to state regulation. Regulation cannot be in this way "split up." It must be wholly in Congress or wholly in the State. Hanley v. Kansas City Southern Ry. Co., 187 U. S. 620; Lord v. S. S. Co., 102 U. S. 541; Pacific Coast S. S. Co. v. R. R. Commissioners, 9 Sawyer, 253.

There is a distinction between a car or instrument used in moving interstate commerce and the commerce itself. A car used in interstate traffic is one thing and the point of time

Argument for Plaintiff in Error.

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when the character of interstate commerce attaches to a commodity is another. Coe v. Errol, 116 U. S. 525, and others cited by defendants, distinguished.

The dining car was generally used in moving interstate commerce and such general use renders it subject to the Safety Appliance Act, although empty at the time of the accident. Voelker v. Railway Co., 116 Fed. Rep. 867, 873; Crawford v. Railroad Co., 10 Am. Neg. Rep. 166; The R. W. Parsons, 191 U. S. 17; The Old Natchez, 9 Fed. Rep. 476; The Daniel Ball, 10 Wall. 557; Delaware & Hudson Canal Co. v. Pennsylvania, 1 L. R. A. 232.

There is no distinction between a loaded car and an empty car, as Congress was dealing with a vehicle. Gibbons v. Ogden, 9 Wheat. 1; In re Lennon, 54 Fed. Rep. 746; Malott v. Hood, 99 Ill. App. 360; Winkler v. P. & R. R. R., 53 Atl. Rep. 90.

None of the three things laid down in Kelley v. Rhoads, 188 U. S. 1, which would take a car out of interstate traffic, to wit: an indefinite delay, (2) awaiting transportation at the commencement of the journey, (3) or waiting sale or delivery at the termination, existed in this case.

The use of the Miller hook with the Janney coupler, because it greatly increased the danger, was negligence, and should be left to the jury. Greenlee v. Ry. Co., 122 N. Car. 977, 982; Troxler v. Ry. Co., 124 N. Car. 191; Mather v. Rillston, 156 U. S. 391; Railway Co. v. Carlin, 111 Fed. Rep. 778; Dissenting opinion in Kilpatrick v. Railroad Co., 121 Fed. Rep. 16.

The question of contributory negligence was not considered either in the Circuit Court or the Circuit Court of Appeals; section 8 of the Safety Appliance Law expressly states that any employé injured by reason of defective equipment shall not be deemed to have assumed the risk. If there is any question of contributory negligence it should be left to the jury under proper instructions by the court. Greenlee v. Ry. Co., 122 N. Car. 977; Railroad Co. v. Ives, 144 U. S. 409; Carson v. Railroad, 46 S. E. Rep. 525.

-The amendatory act of March 2, 1903, expressly providing,

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Argument for the United States.

amongst other things, that the car coupler provision of section 2 of the original act shall apply to locomotives and tenders as well as ordinary cars, is merely declaratory of the intent of Congress in the original act and is a legislative construction of that act.

The Attorney General and the Solicitor General for the United States:

The testimony shows that the engine "backed up" and the tender was therefore presented for the coupling. This is in accordance with common usage and ordinary observation in practical railroading. A tender is certainly a car; but either a locomotive or a tender is a car within the meaning of section 2 of the act of March 2, 1893. The generic meaning of "car" under the definitions and authorities includes engine and tender. Winkler v. P. & R. Ry. Co., 53 Atl. Rep. 90; East St. Louis Ry. Co. v. O'Hara, 150 Illinois, 580; K. C., M. & B. R. R. Co. v. Crocker, 9 Alabama, 412; Thomas v. Georgia R. R. &c. Co., 38 Georgia, 222; New York v. Third Ave. Ry. Co., 117 N. Y. 404. The fact that the first section of the act requires a locomotive engine to be equipped with a power brake, and section 2 forbids the use of any car not equipped for coupling as directed, ought not to exclude the full import of the term car in the second section, when the general intent of Congress and the necessary and invariable use of an engine or tender to make couplings are regarded. Nor should the fact that part of the language of section 2 is restricted to the conception of something drawn by the traction power exclude the engine. The language is, "it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its lines," etc. Considering the evil and the remedy, the words "or used" ought to be viewed as intentionally enlarging the category so as to include an engine, which is of course more frequently used than any other vehicle of a train in moving traffic. Use is the word applied to an engine in the first section.