In the case of Kansas City, Memphis & Birmingham Railroad Company v. Flippo (35 Am. and Eng. R. R. Cases, N. S., 486), the supreme court of Alabama held that the provision of the safetyappliance acts that any common carrier engaged in interstate commerce which fails to equip its cars with automatic couplers, as required therein, shall not avail itself, against an employee injured by such failure, of the doctrine of the assumption of risk, is within the power of Congress; and that whether a car was being used in interstate commerce at the time an employee was injured is a question for the jury.

The same court, in the case of Mobile, Jackson & Kansas City Railroad Company v. Bromberg (37 Am. and Eng. R. R. Cases, N. S., 823), held that the safety-appliance acts apply not only in cases where the cars are at the time actually moving interstate traffic, but to cases where the injury occurs in making up the trains for the purpose of moving interstate traffic; that where a brakeman is required. to go between cars in making a coupling, which can be made with greater safety by going between the cars on one side than by going in on the other side, he is not chargeable with contributory negligence in going in on the more dangerous side, if he could not do the work as well by going in on the safer side; that a plea of assumption of risk in an action against a carrier for injuries to an employee resulting from a failure to comply with the act is frivolous; and that in an action against a railroad company for the death of a servant caused by defendant's failure to comply with the act the court will take judicial notice of what the act provides, and its introduction in evidence is immaterial.

Miscellaneous decisions.—In a case arising in the Texas court of civil appeals it was held that where the rate as filed with this Commission had not been posted in the station at the shipping point and the carrier's agent there was not notified of its existence, but acted on the tariff sheet in his possession and contracted with reference thereto to carry hay for a shipper, the carrier was liable in an action by the shipper for charges in excess of such contract rate collected at the point of destination at the rate specified in the new tariff. (C., R. I. & P. Ry. Co. v. Gardner, 86 S. W., 793.)

The decision of the Texas court of civil appeals in the case of Gulf, C. & S. F. Railway Company v. Moore, cited in our last annual report, to the effect that suits for money damages for violation of provisions of the act to regulate commerce could legally be instituted in State courts has recently been reversed by the supreme court of that State, which holds that a State court has no jurisdiction of such an action. (83 S. W., 362.) But subsequently the court of civil appeals of that State has held, in the case of the Abilene Cotton Oil Company .. Texas & Pacific Railway Company (85 S. W., 1052), that a shipper, in a case of interstate carriage, could be granted relief in a State court

at common law from unreasonable rates, notwithstanding such unreasonable rates had been filed by the carrier under the provisions of the act to regulate commerce.

In Caledonian Coal Company v. Baker (196 U. S., 432), the question whether Territorial district courts can take cognizance of suits for damages authorized by the act to regulate commerce was raised by the United States Supreme Court, but not passed upon. “The questions suggested by these inquiries were not much discussed by counsel," said that court," and we pass them as being, in our view of the case, not necessary to be now decided."

In shipments over more than one line, where damage is alleged, the question often arises whether the contract with the initial carrier was for a through shipment. In Northern Pacific Railway Company v. American Trading Company (195 U. S., 439), it appeared that a shipper in New York made a written contract with an agent of the Northern Pacific for shipment of lead to Tacoma and thence by vessel to Japan. The railway company had a contract with the steamship company authorizing it to make through rates to Asiatic ports. The lead reached Tacoma, but failed to be transported upon the boat desired. Meanwhile the price of lead had fallen and the lead was sold at a loss. In an action by the shipper against the Northern Pacific it was held that the contract made by the agent was on behalf of the railway company, which assumed responsibility beyond the line of its own road. It was also declared that such contract is not affected by a provision in the bill of lading, delivered after the shipment of the goods, to the effect that the responsibility of the carrier issuing the bill of lading ceases at the terminus of its own line.

The statute of Georgia imposing upon the initial carrier the duty of tracing the freight and informing the shipper by which carrier the freight was lost, damaged, or destroyed was held by the United States Supreme Court in Central of Georgia Railway Company v. Murphey (196 U. S., 194), when applied to interstate commerce, to be a violation of the commerce clause of the Constitution. The court said:

The statute in question prevents the carrier from availing itself of a valid contract, unless such carrier comply with the provisions of the statute by obtaining information which it has no means of compelling another carrier to give, and yet if the information is not obtained the carrier is to be held liable for the negligence of another carrier over whose conduct it has no control. This is not a reasonable regulation in aid of interstate commerce, but a direct and immediate burden upon it.

The question as to when an interstate shipment becomes intrastate and subject to local regulation arose in the case of Southern Railway Company v. Greensboro Ice & Coal Company (134 Fed. Rep., 82). The facts in this case showed that the railroad company refused to place on the Ice & Coal Company's siding several carloads of coal shipped from other States to Greensboro, N. C. Upon complaint to

the North Carolina corporation commission, that body ordered the railway to place the cars on the siding, but the United States circuit court for the eastern district of North Carolina, upon application, issued an injuction against the enforcement of such order upon the ground that it was an interference with interstate commerce and therefore void. The court declared that until interstate commerce ceased to be such no State regulations can apply. Congress has by legislation undertaken to regulate the matter by the act creating the Interstate Commerce Commission. Having so legislated, the State could not legislate on the subject. Consequently the court held that interstate freight retains its character as such until the actual delivery to the consignee takes place.

Two recent decisions of State courts involving the favorable or unfavorable attitude of a railroad toward the transportation of certain raw materials over its line, according to the way it affected its "business interests," are of importance. The North Carolina supreme court, in Hilton Lumber Company v. Atlantic Coast Line Railroad Company (48 S. E., 813), held that, under the laws of that State providing that any carrier charging one person more than another for the same service is guilty of discrimination, a railroad carrying raw material to factories could not charge a factory which agrees to ship the manufactured product by the same road less for the same service than it charged a factory which would make no such agreement.

The supreme court of Georgia, in Central of Georgia Railway Company v. Augusta Brokerage Company (69 L. R. A., 119), declared that a carrier might discriminate in facilities against shipments of cotton seed, because such shipments diverted from the road profitable shipments of articles manufactured out of the seed.

A statute of Maryland requires carriers to provide separate coaches for the transportation of white and colored passengers, and makes it an offense for a passenger to refuse to occupy the seat to which he is assigned by the conductor. The constitutionality of this law was tested this year, and the supreme court of Maryland held it valid in so far as it affects commerce wholly within the State, but invalid as to interstate passengers under the commerce clause of the Federal Constitution. (Hart v. State, 60 Atl., 457.)

SAFETY APPLIANCES.

Within the past year a decided improvement has taken place in the condition of safety appliances on all railroads subject to the provisions of the statute, and at no time since the safety-appliance law became effective have the results of its operation been so satisfactory as at present.

This gratifying condition is in great measure due to the action of the courts in clearly defining the statute, leaving no room for doubt

concerning its proper interpretation and application. In the last annual report of the Commission reference was made to the decision of the Supreme Court of the United States in the case of Johnson v. Southern Pacific Company, which sustained the integrity of the law and construed it in important particulars which had previously been subject to doubt.

Following this decision, on March 2, 1905, the law was further strengthened and enforced by a decision of Judge Humphrey in the district court of the United States for the southern district of Illinois, in the case of United States v. Southern Railway Company. A copy of this decision appears in the appendix. These decisions, coupled with the efforts of the Commission through its force of inspectors, have resulted in a uniform understanding of the requirements of the law, so that practice with regard to the maintenance of safety appliances is now substantially uniform throughout the country.

Another important factor in the betterment of conditions is the abrogation of local agreements at many prominent interchange points, whereby carriers, with the idea of facilitating the movement of traffic, received and delivered cars in defective condition. These agreements had the effect of keeping defective cars in constant movement throughout the various yards at interchange points, thus constituting a menace to the safety of employees. The Commission's attention having been called to these agreements, steps were taken to secure their abrogation. Conferences were held with railroad officials at the points most seriously affected, with the result that the old agreements have been abolished, so far as they pertain to the safety appliances required by law, at many of the prominent interchange points, such as Chicago, St. Louis, Buffalo, St. Paul, Minneapolis, Omaha, Kansas City, Indianapolis, Columbus, Toledo, and also at other points of lesser importance. The rule now coming into general observance is that cars will neither be received from nor delivered to connecting roads when safety, appliances are not in all respects in condition to meet the requirements of the law.

As was to be expected, this improvement in the condition of equipment is reflected in the Commission's accident statistics, which show a considerable decrease in fatalities and injuries to employees from coupling accidents. It can not be doubted that this decrease is the result of an improved condition of equipment, and it is confidently predicted that a further decrease will be shown by succeeding reports. There is a noticeable tendency toward uniformity in couplers and uncoupling attachments and an increase in their strength. The different makes of couplers used are steadily decreasing in number, the new cars turned out being equipped with one or another of four or five standard makes. These new couplers are generally stronger than

the old ones, and this improvement in the strength of couplers has reduced the number of defects.

Grab irons are receiving much better attention than formerly, and it is now the exception to find cars unequipped with these important safety devices. Loose and bent grab irons are much less frequently found in service, and the practice of using uncoupling levers in lieu of grab irons is also being discontinued. It is noticeable, however, that sill steps, ladders, and roof hand holds, which appliances are not covered by the statute, are frequently found in dangerous condition. The proper maintenance of sill steps, ladders, and roof hand holds is just as necessary for the safety of employees as is the maintenance of those appliances covered by the law. Defects in these appliances introduce a grave element of danger, especially when such devices are used at night or in the hurry that precludes close observation of their condition, which almost always accompanies switching operations. These important safety appliances should, therefore, be placed under the regulation of the statute.

It is noticeable that the great progress made in the use of air brakes during the past few years has been accompanied by a marked deterioration in the condition of hand brakes. Air brakes are generally well maintained, but scant attention is given the condition of hand brakes. Whole trains of cars are frequently encountered with hand brakes in such poor condition that should an emergency arise rendering the air-brake mechanism unserviceable trainmen would be powerless to control the speed of train. It is often the case that a number of unserviceable hand brakes are associated together on the rear end of a train behind air-brake cars and entirely disconnected from train line. Should these rear cars break off they would be entirely beyond control, and on grades would greatly endanger following trains; in fact, collisions of this character are within the knowledge of the Commission. The switching of cars, especially in gravity yards when hand brakes are not in a serviceable condition, is also a dangerous operation, and closer attention should be paid to the condition of these important safety appliances.

The condition of air-brake equipment shows a marked improvement. There is still room for improvement in the maintenance of retaining valves. On level roads these appliances are little used, and as a consequence but little attention is paid to their condition. On mountain roads these appliances are a positive necessity in maintaining proper control of trains, and no condition should be permitted to exist which interferes with their proper operation at all times.

INCREASE IN PERCENTAGE OF POWER BRAKES.

Serious collisions and parting of trains from causes previously noted, and also presumably by reason of an insufficient number of