515. Section 6 of the act.

SECTION 6.

516. Enforcement of act by prosecution.

517. The supreme court on prosecution for penalty under the act. 518. The burden of proof under the proviso.

§ 515 (368). Penalty for the violation of the provisions of this act.-SEC. 6. (As amended April 1, 1896). That any such common carrier using any locomotive engine, running any train, or hauling or permitting to be hauled or used on its line any car in violation of any of the provisions of this act, shall be liable to a penalty of one hundred dollars for each and every such violation, to be recovered in a suit or suits to be brought by the United States district attorney in the District Court of the United States having jurisdiction in the locality where such violation shall have been committed; and it shall be the duty of such district attorney to bring such suits upon duly verified information being lodged with him of such violation having occurred; and it shall also be the duty of the Interstate Commerce Commission to lodge with the proper district attorneys information of any such violations as may come te its knowledge: Provided, That nothing in this act contained shall apply to trains composed of fourwheel cars or to trains composed of eight-wheel standard logging cars were the height of such car from top of rail to center of coupling does not exceed twenty-five inches, or to locomotives used in hauling such trains when such cars or locomotives are exclusively used for the transportation of logs.

§ 516 (369). Enforcement of the act by prosecution.—This act has been applied and enforced not only in suits for damages against the railroad companies for alleged non-compliance with the act, but also in suits by the government under this section. An action by the government under this statute to recover this penalty has been held not to be a criminal prosecution, but a civil action. See U. S. v. Oregon State Line R. R. Co., 180 Fed. 483, Dist. of Idaho (1908). In this case it was held that it was not necessary to allege that the company acted knowingly or negligently, as the penalty was enforced for the non-compliance with the statutory duty. See also U. S. v. P. & Reading R. R., 160 Fed. 696 (1908).

It was held by the circuit court of appeals, fifth circuit, in St. Louis Southwestern Ry. Co. v U. S., 184 Fed. 28 (January, 1910), that where several cars, each without the requisite appliances required by this act, are hauled by a carrier in interstate commerce at one and the same time, there are as many distinct

violations of the act as there are cars not properly equipped, for every one of which the statutory penalty is recoverable. It was also held that actions to recover these statutory penalties are so far civil in their nature that the United States may recover upon the preponderance of evidence, and the trial judge may in proper cases direct a verdict.

See also U. S. v. Western & A. R. Co., 184 Fed. 336, district court, northern district of Georgia, where the court passed upon the sufficiency of a declaration to recover penalties for violation of the act. It was held that it was sufficient that a car not properly equipped is moved in a train containing cars carrying interstate commerce, though the defective car was not immediately connected to that carrying the interstate shipment; and the declaration was held sufficient which showed that the car had not arrived at its point of final destination.

§ 517. The supreme court on prosecution for penalty under the act.-In C. B. & Q. R. Co. v. U. S., supra, the supreme court affirmed the judgment of the circuit court eighth circuit, 170 Fed. 556, wherein judgment had been affirmed in favor of the United States in a suit to recover penalties for violation of the Safety Appliance Act. It was claimed that the ruling in the Taylor Case, supra, was not applicable as that was an action by an individual to recover damages for a personal injury, whereas the present action was to recover a penalty; but the court said the contention was unsound as the action for recovery of penalty was a civil one. It was therefore competent for the trial court to withdraw the case from a jury and direct a verdict if the evidence was uncontradicted and raised only a question of law. The penalty could not be escaped by showing that the carrier had exercised reasonable care in equipping its cars with required safety appliances and had used due diligence to keep them in repair by usual inspection; but the statute imposed an absolute duty upon the carrier which was not discharged by the exercise of reasonable care or diligence.

§ 518. The burden of proof under the proviso.—The burden of proof is upon a railroad to bring itself within this exception in favor of four wheel cars. The effect of the proviso is to create an exception; and whoever claims under such an exception must set it up and prove it through this case. Schlemmer v. R. R., supra, § 502.

§ 519. Section 7 of the act.

SECTION 7.

520. Discretion of the commission in delaying enforcement of the act.

§ 519 (370). Power to extend time.-SEC. 7. That the Interstate Commerce Commission may from time to time upon full hearing and for good cause extend the period within which any common carrier shall comply with the provisions of this act.

§ 520 (371). Discretion of the commission in delaying the enforcement of the act.-This statute, which as amended is the only enactment for the safety of railroad employes in the federal regulation of railroad transportation, has been construed by the commission from time to time in connection with the discretionary power lodged with the commission under section 7 of the act for the extension of the period of time in which the railroads are required to comply with the act. The commission has ruled that this discretionary power was designed to afford relief in cases which would otherwise inflict special hardships upon the public and the carriers and should only be exercised under such circumstances and for such short lengths of time as are contemplated by the framers of the statute and are plainly inferable from its terms. 9 I. C. C. R. 522; 8 I. C. C. R. 643, 662; 6 I. C. C. R. 332.

§ 521. Section 8 of the act.

SECTION 8.

522. Contributory negligence under the act.

523. Contributory negligence distinguished from assumption of rich 524. Responsibility of carrier for cars out of condition.

§ 521 (372). Employees not deemed to assume risk of employment.-SEC. 8. That any employee of any such common carrier who may be injured by any locomotive, car, or train in use contrary to the provision of this act shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employment of such carrier after the unlawful use of such locomotive, car, or train had been brought to his knowledge.

§ 522 (373). Contributory negligence under the act.-It is provided in section 8 of the original act that the continuance in the employment of the carrier by an employe after knowing of the violation of the act shall not be deemed an assumption of the risk. It has been held in some of the state courts that this provision clearly indicates the modification of the terms and limiting the applications theretofore announced by the courts with reference to the assumption of the risk by the employe. See Texas, etc., R. Co. v. Swearingen, 122 Fed. 193 (1903). See also Narramore v. Railroad Co., 96 Fed. 298, C. C. A., sixth circuit (1899), construing the Ohio statute to the same effect.

But it was held by the United States circuit court of appeals for the eighth circuit in Gilbert v. Burlington C. R. & N. R. Co., 128 Fed. 529 (1904), afg. 123 Fed. 832, that the devolution of the duty upon the common carriers to so equip their cars, that they could be uncoupled without requiring their servants to go between the ends of the cars, necessarily imposed upon their servants the railroad's duty of using the equipment thus used upon them, and refraining from going between the ends of the cars to couple or uncouple them unless compelled to do so by necessity. Under this legislation the breach of either of these duties constituted a want of ordinary care and constituted actionable negligence. The court also said the principle was applicable, that where there is a comparatively safe and a more dangerous way of discharging the duty known to the servants, it was negligence for him to select the more dangerous method, and if his negli

gence contributed to his injury, his negligence is fatal to recovery therefore. See also Northern Pacific Ry. Co. v. Tynan, 119 Fed. 288, and 56 C. C. A. 192, ninth circuit, 1902, where the court left the issue of contributory negligence to the jury. See also Railway Co. v. Baker, 33 C. C. A. 468, 91 Fed. 224, in the seventh circuit, where plaintiff was held guilty of contributory negligence for failing to exercise reasonable care for his own safety in the absence of grab irons or hand holds; and Denver & Rio Grande R. Co. v. Arrighi, 129 Fed. 347 (C. C. A., eighth circuit). In this case the court said that the defense of contributory negligence was as available to the railroad company after as before the passage of the act of congress, although it had not complied with its requirements. In this case the plaintiff rested his case entirely on the failure of the defendant to comply with the act. The court said that the rationale of the doctrine of assumption of risk was not that which supported the rule of contributory negligence.

It was held in the Voelker Case, supra, that a switchman does not assume the risk where the car requiring couplers is not so equipped, and is not marked or isolated as one in bad repair, and its movement at the time is not with the view to its isolation or repair, though he continues in the employment with knowledge of the unlawful use of the car.

It was ruled by the supreme court in the Taylor Case, supra, that the Safety Appliance Act imposed upon the railroad companies an unqualified and absolute duty, and that they move cars in a defective condition at their peril. This same ruling has been followed in suits for damages by or on behalf of employes in Atlantic Coast Line v. U. S., 168 Fed. 175, by the circuit court of appeals of the fourth circuit; in Wabash R. R. v. U. S., circuit court of appeals, seventh circuit, supra; by the circuit court of appeals, eighth circuit, in U. S. v. Southern Pacific, 169 Fed. 407 (1909); in C., B. & Q. R. R. v. U. S., 170 Fed. 556, and by the sixth circuit in U. S. v. Illinois Central R. R., 177 Fed. 801. It therefore follows that the employe cannot be charged with assuming the risk when the company fails in the performance of this statutory duty. See also Employer's Liability Act of 1908, p. 514, infra. See also U. S. v. Anderson Tobacco, etc., Co., 163 Fed. 517, C. C. A. eighth circuit (1908), reversing 150 Fed. 442.