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not enforced, and it can not be enforced without a sufficient number of inspectors to follow up violations closely and secure evidence for their prosecution in the courts, as well as keep the Commission advised of the conditions in which they find the equipment.
Cases involving violations of the safety-appliance act against the following-named carriers have been settled during the year by the payment of money penalties:
Denver & Rio Grande Railroad Company.
Illinois Central Railroad Company. The pending informations for violations of this act as lodged with the proper United States attorneys are against the carriers named below:
Wabash Railroad Company.
St. Louis, Vandalia & Terre Haute Railroad Company. As stated in the Commission's last annual report, the Colorado & Southern and Denver & Rio Grande railroads were granted an extension of time relating to the provisions of the amended law until July 1, 1904, to enable them to come to Congress with a view to securing an amendment to the law permitting these roads to dispense with the driving-wheel brake on their narrow-gauge locomotives engaged in road service and substitute the water brake therefor. The roads
presented a bill for this purpose, and it was favorably reported by the committees of both Houses at the last session, but did not come to a vote. The Commission, therefore, on application of the roads and in view of the fact that the bill had been favorably reported in both Houses, and only failed to be voted upon through the action of the Congress itself and not by fault of the railroads concerned, extended the time until March 1, 1905, so as to enable the Congress to act.
COURT DECISIONS RELATING TO THE SAFETY-APPLIANCE LAW.
In the case of W. O. Johnson v. The Southern Pacific Company, to which reference was made in the Commission's Sixteenth Annual Report, argument was had before the Supreme Court October 31, 1904, both Attorney-General Moody and Solicitor-General Hoyt appearing for the Government, and the latter presenting oral argument in the case. Owing to the fact that the resources of the Government were by direction of Attorney-General Knox employed in preparing this case for presentation to the Supreme Court, the questions involved were much more fully presented than could have been done by a private party. A decision sustaining the integrity of the law on all points wherein it had been weakened by the decision of the circuit court of appeals has just been announced by the Supreme Court of the United States. This decision is a sweeping reversal of the lower courts.
A copy of this decision appears in the appendix. This is believed to be the first instance wherein the Government has intervened in a private suit to sustain the integrity of a law. The result fully justifies the action of the Attorney-General (Mr. Knox) in using all the resources of his Department to bring the matter to the attention of the Supreme Court.
The case of the United States v. J. K. Geddes, Receiver of the Ohio River & Western Railway Company, decided by the circuit court of appeals for the sixth circuit (131 Fed. Rep., 452), is of importance as bearing on the question of what constitutes a movement of interstate traffic. This case was brought for the recovery of penalties for violation of the provisions of the safety-appliance acts. It was conceded that the defendant company used cars which were not equipped with couplers “coupling automatically by impact,” as required by section 2 of the law, and that those cars were so used in moving traffic consigned from one State to another and in process of transportation from one State to another. It is held, however, that the defendant company was not engaged in interstate commerce by railroad within the meaning of the act, although it actually hauled such commerce, because its part of the haul was wholly within a single State, the State of Ohio, and was not “under common control, management, or arrangement" with its connection for a continuous carriage from the point of shipment in one State to the point of consignment or delivery in another.
The language of the act in defining the carriers subject to its provisions, “any common carrier engaged in interstate commerce by railroad,” is plain and unambiguous, and if literally construed embraces, and evidently was intended to embrace, all carriers of interstate commerce; but the ruling of the circuit court of appeals limits the field of operation of the act, and exempts therefrom a large number of carriers and a large amount of interstate commerce which fall within both the letter and the reason of the law, and which should therefore be held subject to its provisions.
In the case of Voelker v. Chicago, Milwaukee & St. Paul Railway Company, which was extensively discussed in our Sixteenth Annual Report, the decision of the circuit court was reversed by the United States circuit court of appeals and a new trial directed. This new trial was had, and on December 12, 1904, the presiding judge held that, on the facts shown, Voelker had been guilty of contributory negligence. He therefore took the case from the jury and ordered a verdict for the defendant railroad company.
The circuit court of appeals for the eighth circuit in another case (Gilbert v. Burlington, Cedar Rapids & Northern Railway Company, 128 Fed. Rep., 529) decided that the safety-appliance law which makes it the duty of common carriers to equip their cars engaged in interstate traffic with couplers which can be uncoupled without the necessity of men going between the ends of the cars,” imposes upon the employees the correlative duty of using these couplers when furnished and of refraining from unnecessarily going between the ends of cars to uncouple them. The court therefore held that the failure of an employee to discharge this duty, which directly contributed to his injury, is fatal to an action for damages on account of it, and said:
The place into which the plaintiff ventured was dangerous--so perilous that Congress had enacted a statute to relieve the plaintiff from the duty of exposing himself to its danger,
and his ignorance of the particular danger from the unblocked guard rail, while he knew the general and imminent danger of the place, constituted no legal excuse for his want of ordinary care, and can not be permitted to relieve him from its fatal effect.
In the case of Arrighi v. The Denver & Rio Grande Railroad Company (129 Fed. Rep., 347) the circuit court of appeals of the eighth circuit said:
It can not be assumed that by the passage of a salutary law, designed for the protection of those engaged in a hazardous occupation, Congress intended to offer a premium for carelessness or to grant immunity from the consequences of negligence. The reasonable conclusion is that the defense of contributory negligence is as available to a railroad company after as before the passage of the act of Congress, although it has not complied with its requirements.
The plaintiff in this case was injured while endeavoring to make a coupling between two cars equipped with link-and-pin couplers, in direct conflict with the requirements of the act, and yet the court held that as a matter of law the plaintiff had been guilty of contributory negligence, and would not permit the matter of the defendant company's negligence in failing to comply with the statute to be passed on by the jury. This has been the course adopted by the lower Federal courts recently in a number of instances.
- It would seem, therefore, that the common-law defense of contributory negligence remains available to the employer in practically all cases, notwithstanding the express declaration of the safety-appliance act that an employee who is injured by the use of prohibited equipment shall not be deemed to have assumed the risk of his employment.
At the end of the last fiscal year, June 30, 1904, the record of railroad casualties under the accident law of March 3, 1901, as compiled from the returns made monthly to the Commission by the railroad companies, had been kept for three years. A summary of these statistics is given in the appendix. The principal totals are shown in the following table:
Casualties to passengers and employees, years ending June 30.
It should be borne in mind that the above totals are not comparable with those given in the Commission's annual statistical reports, for the reason that the monthly reports deal only with accidents to passengers and to employees while actually on duty, and take no account of accidents to "other persons." The class “other persons” in the annual reports includes casualties at highway crossings, to trespassers and persons walking along the track, accidents to employees in shops, and all other accidents.
The increase in the number of deaths to passengers in train accidents in 1904 over 1903 is 647 per cent. The fact that there were ten unusually disastrous railroad accidents in the year under review is well known to the public, the circumstances of each having been widely discussed in the newspapers. Notes concerning the causes of these accidents will be found in the appendix.
If any further evidence were needed to show the usefulness of the accident-report law of 1901, in presenting to the public trustworthy information concerning the risks of railroad travel and the dangers
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pertaining to the everyday life of railroad employees, it may be found in the accident bulletins covering the last fiscal year. These bulletins record ten train accidents (collisions or derailments) which were responsible for 233 deaths and 277 injuries, an average of 23 deaths and 27 injuries per accident. The number of deaths resulting from these ten accidents (eight of which were collisions) is about 23 per cent of the total number killed in all the train accidents of the year, numbering over 6,000 collisions and 4,800 derailments.
One of the most disastrous accidents of the year was a derailment which occurred in December, 1903, causing the death of 65 passengers, with but four exceptions the largest number of fatalities that had ever accompanied a railroad accident in the United States up to that time. This derailment was due to an accidental obstruction of the track. The notes concerning it are also given in the Appendix. Since the close of the fiscal year a still greater disaster has occurred, the washing out of a bridge in the month of August, causing the almost entire destruction of a passenger train and the death of no less than 88 persons. (See Appendix.)
The unusual severity of the train accidents of the year and the wide publicity given the facts concerning them have led to a very earnest discussion of the whole subject in the public press. Although this discussion has, on the whole, been more intelligent and reasonable than in former years, it is noticeable that the very magnitude of the question involved appears to have produced some confusion, and in the multitude of causes assigned the real question at issue has in many cases been lost sight of. As was pointed out in our last annual report, the paramount requirement is an effective measure for the prevention of collisions, and this should not be lost sight of in the discussion of other questions.
For the prevention of collisions we are bound to urge, with added emphasis, if possible, the same means recommended in our last annual report, namely, the adoption of the block system. If any competent authority on the subject, or any mouthpiece of public opinion, or any railroad officer or expert has offered any adverse criticism on the proposals made in that report, such criticism has not come to our notice. On the contrary, the report and the accompanying draft of a proposed law requiring the gradual introduction of the block system on all passenger railroads have been the subject of careful and intelligent criticism by many prominent newspapers, and the recommendations of the Commission have been widely indorsed.
"Mention has been made of the possibility that the cost of introducing the block system would be a burden on the railroads; but we have seen no definite claim on this point and it has been mentioned only in a vague way. There have been a few suggestions that the railroads ought to introduce the block system on their own inotion, each com