UNITED STATES v. INTERNATIONAL & G. N. R. CO., 174 F. 638

SHERBY, Circuit Judge (after stating the facts as above).

The petition alleges that the defendant in error is a common carrier engaged in interstate commerce between the several states and territories of the United States; that its line of railroad is a part of a through highway over which interstate traffic is being continually hauled; that on a uaihed day it hauled a certain car, No. 11217, loaded with cotton, consigned from one point in the state of Texas to another point in the same state; that this car was hauled in a train one car of which contained interstate traffic; and that at the same time said car No. 11217 had its coupling and uncoupling apparatus in such defective condition as to require the presence of an employé between the ends of the car and the one to which it was attached in order to uncouple them.

The trial court sustained a demurrer to the petition, and, the plaintiff declining to amend, dismissed the cause. We are of opinion that the petition copied in the statement of the case states a good cause of action under the safety appliance act of Congress of March 2, 1893 (27 Stat. 531, c. 196 [U. S. Comp. St. 1901, p. 3174]), as amended March 2, 1903. The effect of the amendment is to apply the provisions and requirements of the act to all cars used on any railroad engaged in interstate commerce and to all other cars used in connection therewith. Act March 2, 1903, c. 976, 32 Stat. 943 (U. S. Comp. St.

Supp. 1909, p. 1143). If it is so used, it makes no difference if the defective car was empty, or how it was loaded at the time. The act, as amended, applies to all cars and trains operated by a railroad carrier of interstate commerce over an interstate railway, irrespective of whether the defective car is being hauled from one point to another in the same state or not; it being part of a train engaged in interstate traffic. Wabash R. Co. v. United States, 168 Fed. 1, 93 C. C. A. 393; Pacific Coast Ry. Co. v. United States (C. C. A.) 173 Fed. 448; Johnson v. Southern Pacific Company, 196 U. S. 1, 25 Sup.

Ct. 158, 49 L. Ed. 363. The judgment of the District Court is reversed, and the cause remanded, with instructions to overrule the demurrer.