TEXAS & P. RY. CO. v. RIGSBY, 222 F. 221

WALKER, Circuit Judge.

We understand that the provisions of the Safety Appliance Act are made applicable to any common carrier engaged in interstate commerce by railroad, that that act forbids such carrier to haul or to permit to be hauled or used on its line any car defective in a particular specified in the act, and penalizes such a movement unless it is one from a place where the equipment was first discovered to be defective or insecure to the nearest available point where such car can be repaired, even that movement being penalized unless it is necessary to get the required repairs made, and such repairs cannot be made except at such repair point.

And we understand that the civil liability which may result from a violation of the act attaches if the movement of the car is a prohibited one, though it is not one which subjects the carrier to the criminal penalty prescribed by the act. U. S. Comp. St. 1913, §§ 8605, 8613, 8617, 8618, 8621, 8622. The hauling of such a car over the line of such a carrier is within the prohibition of the act, though that movement does not constitute a use of the car in interstate commerce. It was a purpose of the statute to prevent the movement of such a car over such a line.

Congress had the power to prescribe this prohibition as a means of securing the safety of persons and property transported in interstate commerce. Southern Railway Co. v. United States, 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72. The prohibited movement need not be

an act of interstate commerce in order to render the carrier civilly liable to one injured as a result of the car being defective in a particular specified in the act. In this respect there is a marked difference between the Safety Appliance Act and the Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1913, §§ 8657-8665]).

The evidence in this case was without conflict to the effect that the injury to the defendant in error, a switchman employed by the plaintiff in error, a common carrier engaged in interstate commerce by railroad, was due. to the defective condition of one of the rungs or grabirons constituting the ladder to the top of a box car which at the time was standing, on the plaintiff in error’s main line at Marshall, Tex., while switching was going on which was required to complete a movement previously started of that with other cars from another track in the yard to the plaintiff in error’s repair shop at that place.

There was an absence of evidence tending to. prove that the defect which caused the injury could not as well have been repaired or removed without making the movement of the car which had been partially executed when the injury occurred. We are of opinion that the evidence showed a right off recovery in the defendant in error, and that there was no reversible error in any ruling complained of. It follows that the judgment should be affirmed; and it is so ordered.