commerce between the United States and any foreign country, including corporations engaged in insurance, and to attend to such other duties as may be hereafter provided by law.

§ 496 (353). The remaining sections of the act.-Section 7 deals with the control of the fur-seal and other Alaskan fisheries, the immigration of aliens; section 8 with the annual reports to congress and special investigations and reports; section 9 with the custody of the department buildings, property, records, etc. Section 10 with the transfer of duties and powers of heads of executive departments, and their duties, powers, etc., for the secretary of the treasury, seamen, shipping, etc. Section 11 provides for the co-operation of the state department in the matter of consular reports. Section 12 provides for the transfer to this department of offices, bureaus, etc., engaged in scientific work to this department. The remaining sections of the act dealt with the time of taking effect of the transfers provided for and for the administrative details in the matter of appropriations, transfer of officers, clerks, etc., and the occupation of buildings. See supra, § 59.

THE SAFETY ACT OF 1893, AMENDED 1896.

497. Section 1 of the act.

SECTION 1

498. Railroads subject to the act.

499. The common law duty of the carrier in relation to safety appliances.

500. Petition and procedure under the act.

501. Federal question in suits under the act.

502. The act in the state courts.

AN ACT To promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving-wheel brakes, and for other purposes.

§ 497 (354). Driving-wheel and train brakes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled: Sec. 1. That from and after the first day of January, eighteen hundred and ninety-eight, 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 with a power driving-wheel brake and appliances for operating the trainbrake system, or to run any train in such traffic after said date that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose.

§ 498 (355). Railroads subject to the act.-This act, as also the Accident law, is made applicable to any common carrier engaged in interstate commerce by railroad, while the Interstate Commerce Act applies only to the interstate traffic of railroad carriers, except in the requirement of annual reports under section 20 of that act. In United States v. Geddes, 131 Fed. 452 (1904), C. C. A., sixth circuit, which was a suit on behalf of the United States for the recovery of penalties under this act, the court held that a narrow gauge railroad wholly in Ohio which connected at one of its termini with an interstate road but neither shipped nor received any traffic under a through bill of lading, or any other arrangement, and charged local

freight tariffs on its own line, assuming payment of the Baltimore & Ohio advance charges with weekly settlements was not engaged in interstate commerce within the meaning of this act and was therefore not subject to penalties for non-compliance The court said that under the rulings of the supreme court, express and sleeping car and railroad companies were limited t the nature of their business, making it local or interstate or both as they pleased, and that assuming the payment of the charges of the delivering road did not constitute a continuous carriage necessary to make the business of interstate commerce. See also 180 Fed. 480.

But a stock yards company owning and maintaining a live stock depot of all railroad companies doing business at that point, and owning and maintaining several miles of track connecting with several railroad companies, and which by its own locomotives and servants transports for hire over its tracks shipments accepted by other railroad companies, is a common carrier within the meaning of the Safety Appliance law, although the cars in which it transports such shipments are in every instance the cars of the other companies, and although the stockyards company receives its compensation from the railroads and not the shippers. Union Stockyards Co. v. U. S., 169 Fed. 404 (1909), C. C. A., eighth circuit, affirming 161 Fed. 919.

The same decision was made in the circuit court of the seventh circuit as to the belt railroad in Cook county, Illinois, forming connections with trunk lines and acting only as an agent for the trunk line, see 168 Fed. 542 (1909), to move a train of freight cars containing one from a point on one railroad in Illinois to a point on another railroad in Wisconsin. Such a transfer constituted in effect a continuous carriage over both the roads and defendant was therefore engaged in interstate commerce and within the Safety Appliance Act.

In U. S. v. Southern Railway, 164 Fed. 347, district court of Alabama (1908), the act was broadly held to apply to all vehicles running on interstate highway, and that it was immaterial that the cars were loaded with commodities from one point to another in the same state, and that it was sufficient that the cars were hauled over a portion of the interstate highway.

It was also held in the circuit court of appeals of the ninth circuit, Pacific Coast Ry. Co. v. U. S., 173 Fed. 448 (1909),

that the act applies to a railroad which takes part in the transportation of interstate commerce on any point of its way to the point of final destination, though operated wholly within a single state, independently of connecting lines and without any traffic arrangement. See also U. S. v. Colorado, etc., Co., 157 Fed. 321, C. C., eighth circuit (1907), where the same ruling is made as to the transportation for an independent express company by railroad operating entirely within the state if the articles carried are for continuous passage to or from places out of the state; and it is immaterial that the property is carried free or from a common control of management or arrangement with another carrier.

See also U. S. v. International, etc., Co., 174 Fed. 638 (1909), circuit court of appeals of the fifth circuit.

§ 499 (356). The common law duty of the carrier in relation to safety appliances. It was held by the supreme court of North Carolina that the action of the Interstate Commerce Commission in extending the date at which the act should go into force could not set aside the principle of law that failure to provide the appliances was negligence per se, and that such postponement could not have any other effect than to postpone the date at which the use would impose the penalty for failure to do so. In other words, that the court would take notice of the act as establishing by legislative recognition a measure of legal duty of the railroad company in providing safe appliances, that is, modern self-coupling devices, for its emeployes. Troxler v. Southern Ry. Co., 122 N. C. 902, 44 L. R. A. 313 (1899). See also Greenlee v. Southern Railway Co., 122 N. C. 982, 41 L. R. A. 99 (1899).

In Schlemmer v. R. R. Co., 207 Pa. 198 (1907), the court intimated that it was doubtful whether the act had any applicability to actions for negligence in Pennsylvania, but did not decide this point as the plaintiff was non-suited for contributory negligence. This judgment, however, was reversed by the supreme court of the United States, 205 U. S. 1, 51 L. Ed. 681, on the ground that this ruling of the state court was inconsistent with the provision of section 8 of the act as to non-assumption of risk.

In New England Railroad Co. v. Conroy, 175 U. S. 323, 44 L. Ed. 181 (1899), a case not arising under the act, but involv

ing the question of the responsibility of the engineer, the court said that as railroads are now operated, the engineer is a much more important functionary in the actual movements of the train than the conductor, and particularly has this become the case since the introduction of the air brake train system, and the court referred to the first section of this act of March 2, 1893, providing for air brakes under the control of the engineer, saying: "We do not refer to this statute as directly applicable to the case in hand, but as a legislative recognition of the dominant position of the engineer." See also Northern Pacific R. R. Co. v. Tynan, 56 C. C. A. 192, 119 Fed. 288 (1902), where the court says that prior to the passage of this act there had been numerous decisions rendered by the courts of this country, where it was held that the railroad companies were guilty of negligence in using the Miller coupler in connection with the ordinary link draw bars. See also Texas & Pacific R. Co. v. Archibald, 170 U. S. 665, 42 L. Ed. 1188 (1898).

§ 500 (357). Petition and procedure under the act.-Held in Voelker v. R. R. Co., 116 Fed. 867 (1902), and affirmed on this point by the court of appeals, that it is not necessary for the petition for personal injuries suffered under violation of the act to refer to the act, although the burden is on the plaintiff to show that the car on which he was injured was engaged in interstate commerce, Winkler v. Pennsylvania R. Co. (Del.), 53 Atl. 90; and it is a question for the jury whether railroad companies comply with the act. Crawford v. Railroad Co., 10 Am Negligence Reps. 166.

§ 501 (358). Federal question in suits under the act.-The instruction by a court to a jury that railroads are required t keep their appliances in good and suitable order, raised no ques tion under the act so as to make a claim of a federal right under section 709, R. S., which can be the basis of a writ of error from the supreme court to the highest court of the state. Southern Ry. Co. v. Carson, 194 U. S. 136, 48 L. Ed. 907 (1904). It was objected in this case that the instructions in the state court assumed that if the automatic coupling was out of order the company failed to comply with the act of congress, and the supreme court of the state held that there was no error in this, as congress must have intended that the couplers should have been