GALVESTON, H. & S. A. RY. CO. v. UNITED STATES, 199 F. 891

PARDEE, Circuit Judge. Involving the construction of the Safety Appliance Acts, two classes of suits, one for injury to employés and the other to penalize the railroads for noncompliance, have been passed upon by the courts. ' In the first it has been substantially settled that the duty on the railroads was absolute, and noncompliance without excuse. St. Louis & Iron Mountain R. v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061. In the other class, decisions have been conflicting; the Supreme Court not having passed on the precise question involved.

Without reviewing the many cases cited in the briefs, or attempting to distinguish or harmonize them further than to note that in nearly all no distinction is made as to whether the violation was voluntary, or the result of accident, without fault,, and the resulting necessities, reference is made to two decisions in the Circuit Courts of Appeal which seem to the writer correctly reasoned and decided: Chicago, Northwestern Ry. Co. v. United States, 168 Led. 236, 93 C. C. A. 450, 21 L. R. A. (N.

S.) 690, where it is said: “The object of the safety appliance statutes was manifestly to require interstate carriers to maintain their rolling stock in a certain condition of safety. It could not have been the intention of Congress to impose this duty upon carriers, and at the same time deprive them of the only practical method of meeting its requirements. Rolling stock must necessarily become defective, within the terms of these statutes, both by use and by accident. Repair shops cannot be kept on wheels. Such shops cannot be brought to the defective vehicle.

The only practical method of railroading requires that such vehicles, when out of repair, shall be taken to the shops; and if they are wholly excluded from commercial use themselves, and from other vehicles which are commercially employed, they do not fall within any of the classes covered by the safety appliance acts. A carrier may move one or more cars by themselves to repair shops, for the purpose of having them placed in condition to conform to the safety appliance acts, without being guilty of a violation of those acts while thus engaged in an honest effort to meet their requirements.” And United States v.

Illinois Central R. Co., 170 Led. 542, 95 C. C. A. 628, holding: “An intersi ate railroad is guilty of violating Safety Appliance Act March 2, 1893, c. 190, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), if it starts in transit a car containing interstate commerce with a defective coupling, which could have been discovered by inspection, but not so if the car, when started, had no discoverable defect, but developed one in transit, and there was no subsequent lack of diligence either in discovering or repairing the same.” Pending this suit, Congress passed

an act, approved April 14, 1910 (36 Stat. 298, c. 160 [U. S. Comp. St. Supp. 1911, p. 1327J), the title of which is as follows: “Chap. 160.

An act to supplement ‘An act to promote the safety of employés 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,’ and other safety appliances acts, and for other purposes:” The proviso in

section 4 of that act is as follows: “Provided, that where any car shall have been properly equipped, as provided in this act and the other acts mentioned herein, and such equipment shall have become defective or insecure while such car was being used by suck carrier upon its line of railroad, suck ear may be hauled from the place where such equipment was first discovered to be defective or insecure, to the nearest available point where such car can be repaired, without liability for the penalties imposed by

section 4 of this act, or

section 6 of the act of March second, eighteen hundred and ninety-three, as amended by the act of April first, eighteen hundred and ninety-six, if such movement is necessary to make such repairs, and such repairs cannot be made except at such repair point.”' By incorporating the provision just quoted, and declaring the same as a supplement to the act of 1893, we may safely infer that it was intended by Congress to give the proper construction to the act of 1893.

If this view is correct, then it seems clear that the instant .case should be reversed and remanded, with instructions to award a new trial and thereon, on the same evidence being given, to direct a verdict for defendant below, for the case shows that the engine and train were admittedly in perfect condition as required by the statute when started, and that the break occurred suddenly after going at least 300 miles, and that, as there were no facilities for repairs at the point where the break occurred, it was carried to the first and nearest repair point for the purpose of repair.

However this may be, this court is of opinion that on the evidence in this'case the question of good faith and proper diligence in clearing the tracks and in, moving the train for repairs was one of fact, and should have been submitted to the jury. The judgment of the District Court is reversed, and the cause is remanded, with instructions to award a new trial. SHELBY, Circuit Judge, dissents.