author: HIGGINS, J.

text:
    SOUTHERN PAC. CO. v. EVANS.
    (No. 546.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 17, 1916.)
    1. Master and Servant <©=5286 — Injuries to Servant — Actions — Evidence — Sueei-ciency.
    In an action by a switchman injured between the runnihg boards of two cars, evidence held to raise the issue of negligence with respect to defective drawheads or coupling appliances allowing the cars when switched to come too close together on striking, and so that issue was properly submitted. •
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. <@=286.]
    2. Master and Servant <@=286 — Injuries to Servant — Negligence.
    In an action by a switchman injured when a car was let down against the cars on which he was riding, the question of negligence in propelling the last car at an excessive speed, held not raised by the evidence and improperly submitted.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. <@=286J
    3. Master and Servant <@=139 — Injuries to Servant — Negligence.
    Where the railroad company let down a car against those on which plaintiff, a switch-man, was riding without a switchman to control the movement of the last car contrary to its rules, such negligence does not, where that car was not moving at an excessive speed and the impact was not unusual, warrant recovery for injuries which plaintiff sustained by being crushed between the running boards of the ears, such negligence not being the proximate cause of the injury.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 275, 282, 289, 296; Dec. Dig. <@=139.]
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Action by John Evans against the Southern Pacific Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Beall, Kemp & Nagle, of El Paso, for appellant. Geo. E. Wallace and P. E. Gardner, both of El Paso, for appellee.
   HIGGINS, J.

Evans brought this suit to recover of appellant damages resulting from personal injuries sustained by him while he was in the service of appellant as a switch-man working in its yards in Los Angeles, Cal. While engaged in the operation of switching cars in said yard, and while standing upon the brake platform of a car, it is alleged a string of cars was switched onto tie track where lie was working, and struck the car upon the brake platform whereon he was standing, and by the force of the collision the cars were driven close together, and he was caught between the running boards and injured.

As grounds of negligence, plaintiff alleges that the defendant had a rule or custom prohibiting the switching of cuts of cars on any side track without having and maintaining on said cut of cars a switchman whose duty it was to control same, and that the car which was switched and struck against the cut of cars upon which plaintiff was riding was switched at a rapid and dangerous rate of speed without having a switchman on said car, and without giving plaintiff notice or warning of the approach of said car, and that the drawhead or drawheads or coupling appliances of the two cars upon or between which plaintiff was working were out of order, broken, unsafe, and dangerous, old, worn, and defective, and that the running boards on said two cars last mentioned were too long, and extended out over the ends of the cars too far. That by reason of the fact that either one or both of said drawheads between the two ears where plaintiff met with his accident, or some appliance or part of said drawhead or drawheads was old, worn, defective, or out of order, when said two cars were struck by the other moving cut of cars it caused and permitted the drawheads to give way and allowed the cars to come too close together and so close together as to allow and permit an insufficient space to be and remain between the ends of the running boards, and thereby caused plaintiff to be caught between the ends of the running boards and seriously and permanently injured.

The jury was instructed that:

“If you find that while plaintiff was on a cut of cars then being switched and attempting to control the same by the use of the brakes, defendant’s other employés engaged in switching cars with plaintiff, without any notice or warning to him, switched another' cut of ears in on the same side track at a rapid and dangerous rate of speed, if they did, without notice or warning to plaintiff, and without having a switchman riding thereon to control the movement of said cars, if such was a fact and you so find, and that by reason thereof said cut of cars struck the cut on which plaintiff was riding with such force and violence as to cause plaintiff to be thrown from the position he then occupied on the said cars, and caused him to be caught between the ends of the running boards of said two cars and injured, as alleged by him, if such was a fact and you so find, and you further find that defendant and its employés was or were guilty of negligence, as that term has heretofore been defined and explained to you, in switching said cut of cars in on said side track at the rate of speed you find they were being switched, and without any notice or warning to plaintiff, if he had no notice, or warning and none was given him, and without having a switchman stationed on said cut of cars to control the movemént of the same, if there was none, and that such negligence, if any. on the part of the said defendant, or its emnloyés, was the direct and proximate cause of plaintiff’s ■ accident and consequent injury, if any, and you do not find for defendant under another or other paragraph of this charge, then in that event your verdict will be for the plaintiff; or, if you find and believe from a preponderance of the evidence that the drawheads and coupling appliances on one or both of the two cars between which plaintiff was riding was or were defective and out of order, and that defendant failed to use ordinary care to provide and keep reasonably safe such drawheads and coupling appliance and that 'by such failure, if any, defendant was negligent, and such negligence, if any, was the proximate cause of the injury, if any, to plaintiff, alleged by Mm, you will find for the plaintiff, unless you find for the defendant under another or other paragraph of this charge.”

Error is assigned to the submission of any issue of negligence with respect to defective drawheads or coupling appliances because there was no evidence raising such issue.

Plaintiff testified he was on a string of two Pacific Express Company cars Nos. 5298 and 3916 going towards the icehouse when he was directed by the foreman to stop them, which he did with the brakes; he was in between these cars on a brake platform and had reached down with his club to knock the dog off the ratchet, so as to slack the brake when another ear came down and hit the string of cars he was on; it did not couple but rebounded and struck again; when it first struck it drove him backwards between the running boards and when it struck the second time- it caught him between the running boards and crushed him. The brake platforms were on the ends of the two cars and about 18 or 20 inches below the top. Prom my own knowledge, gained in work as a railroad man and switchman in the yards, together with my knowledge of the manner of switching these cars, the P. P. E. Company cars, if the drawheads and coupling appliances are in a reasonably safe condition for use, I will state that in the ordinary switching of cars and allowing them to be struck, when they couple together, these end boards will not come together close enough to catch you. The drawheads hold them apart. They are equipped with a follow plate and springs, and then when the drawhead comes up against the ends of the car the springs keep them apart. * * * These drawheads hold the end beams of the car apart. Unless something gives, in the ordinary switching of ears by means of striking with the other cars, or an engine, it is not possible for them to come close enough together to catch me, a man of my size, between the ends of those two running boards.

D. W. Bowers, an experienced car repairer and former car inspector, testified as an expert as follows:

“If you have two cars coupled together, with the brakes on one of them and the cars are standing still, and you let another car down the same track, just one car run down, and strikes these two cars on the end of one of them, with this car running four miles an hour, if these couplers are in good condition, coupler and coupler appliances are in a reasonably safe condition, that blow will not be sufficient to break anything, if they are in good condition. If the drawheads and coupling appliances are in a reasonably safe condition and you let two cars as I have mentioned be struck by another car running four miles an hour down a 1 per cent, grade, it could not possibly drive them closer together than 18 inches — I mean the running boards. The cars themselves would come about 33 to 36 inehes, just the average of the couplers. That is as close as they could possibly be driven, unless there was something wrong. The defect that would allow the cars to come closer together than 36 inehes would be the coupler head would have to break off, or the coupler would have to be shoved clean under the car — shoved clean through the end sill and shove the coupler back under the car to let them come together. If these couplers are properly placed on the cars and are in a reasonably safe condition, it couldn’t possibly get the cars closer together than a certain distance, not under 33 inches. I am talking about these P. IT. E. cars; not other cars. With that class of couplers it would not be under 33 inches; it could not be under 33 inches. Now, if I, as an expert, would see the ears come close enough together so-that the end of the running boards would catch a man the size of this man and mash him so as to break his pelvis, then I would say that there was something wrong with the appliances, because it couldn’t occur otherwise.”

W. O. White traveling ear inspector for appellant, testified:

“These are separated 31 inehes when shoved together. If they come closer than 3l inehes, then there is something wrong; they have got to be — in other words, there is a defect; that is, if you have got the same sized couplers, it would be a defect — if they come any closer than 31 inches. If those cars did, as a matter of fact, come closer than 31 inehes and catch Hr. Evans, then it was due to some defect in their gear or coupling appliances somewhere; it would have to be. If there was a defect in those cars and they could be brought together closer than the 31 inches, they are not supposed to come any closer than that, and they cannot come any closer than that if they are in a reasonably safe condition. If they do come closer than that they are not in a reasonably safe condition. * * * They could not get any closer than that. The couplers in a compact position, when striking the striking plate, or end sill of the car, the ends of the two running boards would be 12% inches apart. * * * Then, according to my measurement here, those cars could not come closer than 12% inches — the ends of the running boards — they couldn’t get any closer than that. I am talking about what holds them apart — 12% inches is what the figures would be.”

Alfred Cross, chief car inspector of the appellant, testified:

“With all the force you can get on these two cars they ought not — if the drawheads and coupling appliances are in a reasonably safe condition, they ought not — to come closer than 31 inches to each other. They could not do that. If they do come nearer than 3l inches, it is not due to some defect in the coupler or coupling appliances. It might be due to the end sill. It would be due to some of the appliances which are put on there to hold them a certain distance apart. It may be in the coupler, it may be in the drawhead, or it may be in the end sill; but it must be that there is a defect somewhere that allows them to come closer than 31 inches. They can’t get any further; can’t get in there unless there is a defect in the end sill, the two end sills. The end sill — the two end sills — and the drawheads are placed in there for the purpose of keeping the cars a certain distance apart. One of the objects is, when you are jambing them together they must not come nearer than 31 inches of each other. They could not; that is, the object of those appliances is to keep them separated 31 inches, even if there is pressure on both ends.”

According to the testimony of Bowers the ends of the running boards on these cars, If the projections of the ends were in accordance with the regulations of the Interstate Commerce Commission could not come closer together than 18 inches, whereas, according to the testimony of White and Cross, such ends might come as close as 12% inches.

There is evidence by appellant’s witnesses showing inspections made of the cars immediately after the accident, and that the draw-heads and coupling appliances were in good condition; but the testimony of plaintiff and Bowers shows that there must have been some defect therein if the accident occurred in the manner detailed by plaintiff. This testimony was sufficient to raise the issue as to such defect. It was circumstantial evidence of a positive nature directly tending to establish the truth of the allegations concerning defective drawheads or coupling appliances. Such being its character, appellee’s case does not rest upon the doctrine of res ipsa loquitur (Brewing Co. v. Willie, on rehearing 52 Tex. Civ. App. 550, 114 S. W. 186), and certain rules applicable under this doctrine and raised under this assignment have no application. From what has been said it follows that the court did not err in submitting this issue.

Error is next assigned to that portion of the charge quoted in submitting the issue of negligence arising from excessive speed of the car which struck the string upon which plaintiff was riding.

All of the testimony upon this phase of the case is as follows: Plaintiff testified:

“The car came down hard enough to knock me off of them. * * * In order to make an automatic coupling it is necessary that the car be shoved with a reasonable amount of force, or it won’t couple at all. I don’t know of my own knowledge at what speed the car came down that coupled into me. 1 don’t know about that at all. * * * The car that struck me hit a pretty good lick; I could tell that by the jar I got. In switching there, to make that coupling, to strike it as hard as it did, I think, about the way I felt, the way it felt, it must have hit along about four miles an hour. That is downgrade there. * * * It was about four car lengths. When the cars struck my cut of cars it was not going over four miles an hour. He didn’t shunt it down or kick it down. I didnjt see the car. I don’t know,how fast it was going, but I guess about four miles an hour, that is not too much speed. I am acquainted with the yards there in Los Angeles. There is about a 1 per cent, grade there, and I know it is customary for the man following the engine to give what he calls the pin signal, which means to give enough slack to pull the pin, and then let the car run down of its own momentum. That’s the way they make those, in that part of the yards, I knew that, I had been working there in the yards for three years. I knew where the upgrades were and where the downgrades were.”

J. D. Sullivan, a witness for defendant, testified as follows:

“We started him down with two cars and then dropped another one down and he was to take those ears on down the line to the ice-house — the first two cars — these cars rolled about three or four car lengths. Then I sent down another car. I sent that ear down; we just let it go down, let the slack out and cut it off. The car rolled of its own momentum. The reason it went of its own momentum and was not pushed or shoved by the engine was that there was grade enough for it to go by itself. It was not kicked. I gave the engineer this signal (indicating) that means to slacken the pin so you can puli the pin. When you pull the pin the ear starts on its way. I said that the car was not kicked.”

1-Ie further testified that the distance to go in this instance was three or four car lengths, about 100 or 120 feet, something like that.

Ralph H. Groves, a witness for defendant, testified that he was handling the engine at the time, under the direction of the engineer, who was present. He further testified as follows:

“As to how the ear was let down, let loose, just before Evans was hurt, I got the signal from Mr. Sullivan, the pin signal; that is a signal to give the slack of the cars, so as to pull the pin; they give the signal for a little slack, so as to get the pin, and I just opened my throttle a trifle. When he gave me that signal, I just touched the throttle, and he gave me the stop signal. It was right at the switch. I did not want to go down another track, and I just touched the throttle a trifle; that is the way they do for a pin signal. There is a grade there, just a slight grade. * * * When I got this signal, I was going ahead, moving. We were moving very slow, going about four miles an hour, I judge; not faster than that. I only gave the engine enough steam to give the pin. We were going about four miles an hour. I had to move the engine that fast to let the car go. Then I had to move the engine faster than the cars were going, so as to take the slack up; naturally, the engine was holding the cars there. I had to give the engine a little steam, so he could pull the pin, and then the cars had a certain momentum, and they left my engine at about four miles an hour. We were on downgrade. * * * When I got a signal to give the slack, I was standing still at that time. I was standing still when he gave me the signal, and when I say four miles an hour I mean that I gave them a start that I thought would be just about that: a very slow gait. I was not moving the cars at all up to the time I got his signal.”

This evidence, in our judgment, is insufficient to raise an issue of negligence with respect to excessive speed. It is shown that the moving car must have had some momentum in order to effect an automatic coupling, and it is further shown that this car was moving very slowly. There is nothing to show that it was moving at a rate of speed or had a momentum greater than was necessary to effect the coupling automatically. There is nothing to indicate that the force of the impact was anything unusual. This issue should not have been submitted.

Error is also assigned to the refusal of a special charge to the effect that there was no evidence of negligence proximately causing injury to plaintiff by reason of failing to have a switchman on the car which struck and coupled to the cars whereon plaintiff was at the time of the accident and withdrawing from the jury any issue of negligence in this respect. To this assignment appellees reply that under the pleadings and evidence it was a question of fact for the jury to determine whether or not the defendant was guilty of negligence in failing to follow the custom and practice of having a switchman ride the cars for the purpose of controlling the same.

There is evidence in the record tending to show that under its rules and custom it was incumbent upon appellant to have had a switchman upon the car which was shoved against the string plaintiff was on; but if it be conceded that defendant was negligent in failing to follow its rule and custom upon this occasion, nevertheless such negligence could not be made the basis of a recovery, unless it was a proximate cause of the injury. It was alleged that he was required to be there for the purpose of controlling the movement of the car by means of the hand brakes. In passing upon the preceding assignment, it is shown that the impact and movement of the car was in nowise improper. The impact and movement being proper there was no necessity in the instant movement that any one should have been upon the car to control the same. This question is intimately connected with that which has just been passed upon, and if the impact and movement was proper, the failure to have a switchman on the car which was shoved against the string whereon plaintiff -was, whose duty it was to control its movement, could not have been a proximate cause of the injury. For this reason the requested instruction should have been given.

From what has been said it follows that the cause must be reversed, and it is therefore unnecessary to pass upon the remaining assignments.

However, it may be remarked that we regard as improper the argument of appellee’s counsel complained of in the seventh assignment, and that it probably presents reversible error.

Reversed and remanded.
      <$E5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BROOKE, J.

license: Public Domain

text:
    STATE v. BEAUMONT & G. N. R. R. et al.

    (No. 59.)
    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 27, 1916.
    Rehearing Denied Feb. 10, 1916.)
    1. Commerce <®=>8 — Interstate Commerce— Resulations.
    When ears or locomotives which are required to be equipped with safety appliances under the federal Safety Appliance Act March 2. 1893, c. 196, 27 Stat. 531 (U. S. Comp. St. 1913, §§ 8605-S623), are used upon or pass over a railroad -which, is used for interstate commerce, the federal act applies and is supreme.
    [Ed. Note. — Eor other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. <®u=>8.]
    2. Evidence <®=j20 — Judicial Notice.
    The state courts will take judicial notice that practically all of the railroads in the state are engaged in interstate commerce.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 24; Dec. Dig. <®=o20.]
    8. Commebce <§=m8 — Interstate Commerce-Federal Regulations.
    The federal Safety Appliance Act, enacted under Const U. S. art. 1, § 8, subd. 3, giving Congress power to regulate interstate commerce, declares that nothing in the act shall apjfiy to trains composed of four-wheel ’ cars, or trains composed of eight-wheel standard logging cars, where the height of such car from the top of the rail to the center of the coupling does not exceed 25 inches, or to locomotives used in hauling such trains when such cars or trains are exclusively used for the transportation of logs. The journals of Congress show that the exception as first offered was intended to prevent regulations from requiring reshipment of coal loaded on mine cars, and that it was later extended to ordinary logging trains. Texas Safety Appliance Act (Rev. St. 1911, arts. 6709, 6710), declaring that it shall apply only to carriers engaged in intrastate commerce, purports to regulate the brakes on logging trains, etc. Seld that, as to a railroad engaged in interstate commerce, the state laws are inoperative; Congress by its inaction and the exception clearly showing that no regulation of logging trains should be made by the states.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. <®=»8.]
    Appeal from District Court, Polk County; L. B. Hightower, Judge.
    Action by the State of Texas against the Beaumont & Great Northern Railroad and others. From a judgment for defendants, the state appeals.
    Affirmed.
    J. L. Manry and S. H. German, both of Livingston, for the State. Chas. C. Huff and A. H. MeKnight, both of Dallas, for appel-lees.

      Application ior writ of error pending in Supreme Court.

   BROOKE, J.

As filed, this was a suit for penalties aggregating $840,000 for alleged violations of the Texas Headlight Law and that part of the state Safety Appliance Act embodied in articles 6709 and 6710 of the Revised Civil Statutes of 1911. By an amended petition, the state reduced the number of alleged violations of the Headlight Law and of each of the articles of the statute mentioned to 50, and demanded a penalty of $1,000 for each such violations, a total of $150,000. Appellees filed a motion under article 335 of the Revised Civil Statutes, questioning the right of the attorneys bringing the suit to prosecute the same, and asking that they be cited to appear and show by what authority they were proceeding. At the hearing upon this motion, it was conceded by the attorneys that they were without authority to institute or prosecute the suit for penalties under the Headlight Law, not having been requested by the Railroad Commission of Texas or instructed by the Attorney General to do so; and that part of the cause of action was dismissed. The court, however, sustained their power to bring and prosecute so much of the cause of action as relates to the Safety Appliance Act, holding that no request from the Railroad Commission or instruction from the Attorney General was necessary under it. But upon considering the general demurrer to the petition and a special demurrer based upon the proposition that Congress, by passing the federal Safety Appliance Acts, had covered this field of Legislation, the court held that the state Safety Appliance Act is inoperative and sustained said demurrers. Appellant having declined to amend, the case was dismissed. The sole question presented upon this appeal, therefore, is the correctness of the ruling of the trial court on these demurrers.

The allegations of appellant with reference to the violation of the Safety Appliance Acts were as follows:

“That each and every day from the 10th day of February, 1914, to the 11th day of March, 1914, Sundays excepted, and each and every day from the 1st day of May, 1915, to the 1st day of June, 1915, since the institution of this suit, Sundays excepted, the said defendants have used on their said line of railway, in Polk county, Tex., in moving intrastate traffic, one certain locomotive engine which was not equipped with a power driving wheel brake and appliances for operating the train brake system, as required by the terms of article 6709, R. S. of 1911 of the State of Texas, and the said engine so used by the defendants without said equipment and appliances, during said days aforesaid,_ has been used and engaged in pulling and hauling a log train, composed of standard logging cars, such cars and locomotive engine being used exclusively for the transportation of logs, wholly within the county of Polk and state of Texas; and said locomotive engine was used by said defendants at least one time each and every day during the time aforesaid and was used and operated by the said defendants wholly within the state of Texas, and was used in moving intrastate traffic only, and was in no manner engaged or used in the moving of interstate cars and in the transportation of logs as aforesaid. That by the violation of the said article 6709 of the Revised Statutes of 1911 of the State of Texas, as aforesaid, the said defendants have become liable and are liable to the state of Texas in the sum of $1,000 for each and every day said engine was so used by defendants within said Polk county, as aforesaid, and said statute has been thereby violated once each and every day during the dates aforesaid; that is, a total of 50 days, aggregating the sum of $50,-000 for said violations as aforesaid.”
“That each and every day from the 10th day of February, 1914, to the 11th day of March, 1914, Sundays excepted, and each and every day from the 1st day of May_, 1915, to the 1st day of June, 1915, since the institution of this suit, Sundays excepted, the defendants, as such common carriers of intrastate commerce as aforesaid, have hauled and permitted to be hauled and used on said line of railroad, in Polk county, Tex., and wholly within the state of Texas, one certain locomotive, tender, cars, and similar vehicles, employed in moving intrastate traffic only and wholly within the county of Polk and state of Texas, which said locomotive, tender, cars, and similar vehicles were not equipped with couplers coupling automatically by impact, and which could be coupled and uncoupled without the necessity of men going between the ends of locomotives, as is required by article 6710, R. Statutes of 1911 of the State of Texas, and the said locomotive, tender, cars, and similar vehicles so hauled and permitted to be hauled and used by defendants without said equipment and appliances have 'been used and employed and engaged in pulling and hauling a log train, composed of standard logging cars, such locomotive, tender, cars, and similar vehicles and logging cars being used exclusively for the transportation of logs, wholly within the county of Polk and state of Texas; and the same was in no manner and at .no time engaged in the moving of interstate commerce, but was wholly used in the transportation of intrastate traffic, as aforesaid, wholly within the county of Polk and state of Texas. That by reason of the aforesaid violations of said article 6710, R. S. 1911, of the State of Texas, the said defendants have become and are liable to the state of Texas in the sum of $1,000 for each and every violation thereof, to wit, one violation thereof each ‘day for the time and times aforesaid, or a total of 50 days, making an aggregate of $50,000 for which said defendants are liable to the state of Texas for said violations as aforesaid.”

The special exception of appellee was as follows:

“To the third and fourth paragraphs, because articles 6709 and 6710 of the Revised Statutes of 1911, upon which the same are based, cover a field of legislation of which the Congress of the United States has lawfully taken possession under subdivision 3. § 8, art. 1, of the Constitution of the United States, in the passage of the Safety Appliance Acts, approved March 2, 1893, March 2, 1903, and April 14, 1910. The said articles of the Texas statute are void or inoperative, the acts of Congress covering the same subject-matter being supreme.”

By appellant’s first assignment of error, the action of the court below is assailed in sustaining the general demurrer of defendants to plaintiff’s first amended original petition, because said petition alleges and states a good and sufficient cause of action under the laws of Texas.

Appellant’s second assignment of error is as follows:

“The court erred in sustaining special exception of defendant Beaumont & Great Northern Railroad and in holding the state Safety Appliance Act invalid and inoperative, because the same covers a field of legislation over which Congress cannot lawfully exorcise authority, and in which it has expressly declined to.legislate, leaving the same free for the exercise of the police power of the state of Texas; and said Safety Appliance Act deals with instru-mentalities and agencies of commerce local in their nature and application, and over which Congress has expressly declined to act, and as to which Congress has adopted the regulations established by the state.”

The assignments will be considered as a whole.

As stated above, there is but one question for decision in this case. It has been settled by the Supreme Court of the United States that, when cars or locomotives which are required to be equipped with safety appliances under the federal act are used upon or pass over a railroad that is used for interstate commerce, then the federal act applies and is supreme.

Articles 6709 and 6710, Revised Civil Statutes of Texas, read as follows:

“Art. 6709. It shall be unlawful for any common carrier engaged in intrastate commerce by railroad within the state of Texas to use on its lines in moving, intrastate traffic within said state any locomotive engine not equipped with a power driving wheel brake and appliances for operating the train brake system, or to run any train in such traffic that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemem to use the common hand brake for that purpose, or to run any train in such traffic that has not all of the power or train brakes in it used and operated by such engineer, or to run any train in such traffic that has not at least seventy-uve per centum of the cars in it equipped with power or train brakes; and for the purpose of fully carrying into effect the objects of this and the five succeeding articles, the railroad commission of Texas may, from time to time, after full hearing by public order, increase the minimum percentage of cars in any train which shall be equipped with power or train brakes; and after such minimum percentage has been so increased it shall be unlawful for any common carrier to run any train in such traffic which does not comply with such increased minimum percentage.
“Art. 6710. It shall be unlawful for any common carrier, engaged in commerce as aforesaid, to haul or permit to be hauled or used on its line of railroad within the state of Texas, any locomotive, tender, car or similar vehicle employed in moving intrastate traffic within the said state which is not equipped with couplers, coupling automatically by impact, and which can be coupled and uncoupled without the necessity of men going between the ends of locomotives, tenders, cars and similar vehicles.”

The Beaumont & Great Northern Railroad is a highway of interstate commerce, and it is admitted that, if the federal Safety Appliance Acts apply to the operation of logging cars and log trains and locomotives employed in pulling and hauling logging trains and cars exclusively in the transportation, then the state Safety Appliance Act has been suspended and is inoperative.

The exception incorporated in the federal Safety Appliance Acts is as follows:

“Provided, that nothing in this act contained shall apply to trains composed of four-wheel cars or to trains composed of eight-wheel standard logging cars where 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.” Articles 8605 to 8623, inclusive.

It is contended by the appellant that Congress, although having entered the field of legislation, has not legislated with reference to the particular equipment and agencies sought to be made subject to the state law in this case, and that, Congress having failed to legislate, it must be determined whether or not its failure or declination to act is a declaration on the part of Congress that these agencies shall remain free from legislation and control, either by Congress or the states, or is the nonaetion of Congress a declaration that the same shall be left by Congress to be regulated by and made subject to the police power of the respective states.

It is further contended by appellant: That in the regulation of interstate commerce there are three powers, viz., the exclusive state-power, exclusive national power, and the concurrent power; and that while it may be admitted that in those eases where the laws are from their nature national in their character instead of being of local nature, and affecting interstate commerce incidentally, the silence of Congress indicates that it wills that such commerce shall be free and untrammeled by state legislation to this extent, and that for the sake of argument it might be further admitted that the aegneies sought to ■be regulated in this case do not belong exclusively to the state power, but it is contended that the regulation of these instrumentalities (logging ears and logging trains used exclusively in the transportation of logs) does not require laws national in their character and scope, nor does the operation of such agencies affect interstate commerce in its nation-wide aspect; hence it necessarily follows that these instrumentalities fall in that class where the power to. control is concurrent. That in this class fall subjects of a local nature, and that “immense mass of legislation usually referred to as the police power of the state, which may affect incidentally or facilitate foreign or interstate commerce, and regulate, for the protection of the health, morals, or general welfare of the state, the instrumentalities of commerce, so long as Congress itself does not cover the subject with regulations which conflict with the state regulations.”

, Appellant cites the cases of Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. 564, 31 L. Ed. 508; M., K. & T. Ry. Co. v. Harris, 234 U. S. 412, 34 Sup. Ct. 790, 58 L. Ed. 1377, L. R. A. 1915E, 942; Savage v. Jones, 225 U. S. 501, 32 Sup. Ct. 715, 56 L. Ed. 1182; Reid v. Colorado, 187 U. S. 137, 23 Sup. Ct. 92, 47 L. Ed. 108; G. C. & S. F. v. Hefley, 158 U. S. 98, 15 Sup. Ct. 802, 39 L. Ed. 910; Covington Bridge Co. v. Kentucky, 154 U. S. 204, 14 Sup. Ct. 1087, 38 L. Ed. 902 — as upholding its views.

It is further argued by appellant: That, in view of the exception stated in the federal statute and the decisions above referred to, there is no conflict whatever between the federal and state law, so far as it is sought to apply them, as in this case, to logging cars, logging trains, etc., and that Congress has ■expressly exempted them from the operation of the federal law, while the state law makes no exception, but applies alike to all equipment and 'instrumentalities of intrastate traffic. That the state law was intended to reach and regulate that which Congress has seen fit to leave unregulated, and that the subject was one which was local in its nature, and one with which the state power was peculiarly adapted to be controlled. That the two statutes, federal and state, were enacted in pursuance of a common purpose to afford a remedy as broad as the mischief. That to hold that the state law is inoperative as applied to logging trains and equipment, even though they may be operated over a railroad used for interstate commerce, is to declare that this traffic, which directly and indirectly involves the safety of hundreds of human lives and the general welfare of the public, is to be unrestrained and unregulated. That this traffic is not touched or affected by the federal statute which expressly exempts it from its operation and prohibitions, and that to hold that the state law has been stricken down and is impotent because Congress has entered the field of legislation is in effect to say that Congress has left this perilous traffic untrammeled and stands with the sword of its paramount authority uplifted to strike down the arm of the state if it should dare to raise it against such commerce.

On the other hand, appellees claim: That Congress, exercising the power imposed upon it by the commerce clause of the federal Constitution, has covered the whole field of legislation to which the state Safety Appliance Acts apply, and that, its enactment being superior to that of the state, no penalty can be recovered for a violation of the law. That the articles 6709 and 6710, while limited to intrastate commerce, are not confined to common carriers engaged exclusively in such commerce. That they apply as well to carriers engaged in both intrastate commerce and interstate commerce. That Congress has passed Safety Appliance Acts containing substantially the same requirements as articles 6709 and 6710, which are applicable to all railroads on which interstate commerce is handled. The record shows that appellees handle interstate commerce over the line of railroad involved in this case. The question of a conflict in the exercise of power by the state Legislature, on one hand, and by Congress, on the other hand, therefore, at once suggests itself.

Congress, in passing the Safety Appliance Acts, proceeded under authority given it by the commerce clause of the federal Constitution. The supremacy of Congress in the field of interstate commerce is not now open to question, and, when it enters this field, the right of the states to legislate with respect to the subject-matter covered by its enactments, or to enforce legislation previously enacted, ceases to exist.

In Northern Pacific Ry. Co. v. Washington, 222 U. S. 378, 32 Sup. Ct. 161, 56 L. Ed. 237, the court said:

“It is elementary, and such is the doctrine announced by the cases to which the court below referred, that the right of a state to apply its police power for the purpose of regulating interstate commerce, in a case like this, exists only from the silence of Congress on the subject, and ceases when Congress acts on the subject or manifests its purpose to call into play its exclusive power.”

In Chicago, Bock Island & Pacific Ry. Co. v. Hardwick Farmers’ Elev. Co., 226 U. S. 435, 33 Sup. Ct. 176, 57 L. Ed. 284, 46 L. R. A. (N. S.) 203, it is said:

“The elementary and long-settled doctrine is that there can be no divided authority over interstate commerce and that the regulations of Congress on that subject are supreme.”

In Erie R. Co. v. New York, 233 U. S. 681, 34 Sup. Ct. 759, 58 L. Ed. 1149, 52 L. R. A. (N. S.) 266, Ann. Cas. 1915D, 138, it is said:

“The relative supremacy of the state and national power over interstate commerce need not be commented upon. Where there is conflict, the state legislation must give way. Indeed, when Congress acts in such a way as to manifest its purpose to exercise its constitutional authority, the regulating power of the state ceases to exist.”

In the case of M., K. & T. v. Harris, 234 U. S. 417, 34 Sup. Ct. 792, 58 L. Ed. 1377, L. R. A. 1915E, 942, it is said:

“It is, of course, settled that, when Congress has exerted its paramount legislative authority over a particular subject of interstate commerce, state laws upon the same subject are superseded.”

In Southern Ry. Co. v. Railroad Commission of Indiana, 236 U. S. 439, 35 Sup. Ct. 304, 59 L. Ed. 661, the court said:

“Until Congress entered that' (the safety appliance) field, the states could legislate as to equipment in such manner as to incidentally affect without burdening interstate commerce. But Congress could pass the Safety Appliance Act only because of the fact that the equipment of cars moving on interstate roads was a regulation of interstate commerce. Under the Constitution the nature of that power is such that when exercised it is exclusive, and ipso fac-to supersedes existing state legislation on the same subject.”

Counsel for appellant concedes the correctness of this proposition, and frankly admits that the state law is inoperative as to railroad equipment generally, and it is said that they are induced to this by thq opinions in Southern Ry. Co. v. U. S., and Southern Ry. Co. v. Railroad Commission of Indiana; the first case expressly holding that the federal law applies to all equipment used on railroads engaged in interstate commerce, and the other, that the acts of Congress are exclusive. But appellant insists that by the proviso to section 3 of the original federal Safety,Appliance Act, as amended in 1896, Congress has left the states free to regulate safety appliances on logging equipment as they deem proper.

It is argued that counsel for appellant mistakes the purpose of Congress in enacting the proviso, and that clearly what Congress intended was, not that the states might regulate logging equipment, but that it should go unregulated.

It is conceded that the federal acts apply to all" equipment used on interstate highways, except logging equipment. What reason is there for leaving logging equipment to the jurisdiction of the states? The necessity for federal regulation of this class of equipment, if it ought to be regulated, is as great as the necessity for such regulation of other equipment; and, Congress having entered the field, the only reasonable conclusion is that it made all the regulations deemed necessary.

It is further contended: That, if Congress has occupied the field, the nature of its enactment is immaterial. It legislates as truly when it states that a subject shall be exempt from its regulations as when it brings the subject under them. In other words, its manifestation of a purpose that any subject shall go unregulated is as effective to prevent action by the states as the strictest regulations would be, and that in-hibitive congressional regulation is not necessary. That a state cannot go further than Congress has seen fit to go. That the only test is whether Congress has manifested a purpose to enter the field, and that, if it has, its occupation is exclusive.

In Houston v. Moore, 5 Wheat. 1, 5 L. Ed. 19, Mr. Justice Washington, speaking for the court, said:

“I am altogether incapable of comprehending how two distinct wills can, at the same time, be exercised in relation to the same subject, to be effectual, and, at the same time, compatible with each other. If they correspond in every respect, then the latter is idle and inoperative; if they differ, they must, in the nature of things, oppose each other, so far as they do differ. If the one imposes a certain punishment, for a certain offense, the presumption is that this wa3 deemed sufficient, and, under all circumstances, the only proper one. If the other Legislature impose a different punishment, in kind or degree, I am at a loss to conceive how they can both consist harmoniously together.
“I admit that a legislative body may, by different laws, impose upon the same person, for the same offense, different and cumulative punishments; but then it is the will of the same body to do so, and the second, equally with the first, law, is the will of that body; there is therefore, and can be, no opposition of wills. But the case is altogether different where the laws flow from the will of distinct co-ordinate bodies.”

In Priggs v. Pa., 41 U. S. (16 Pet.) 539, 10 L. Ed. 1060, it is said:

“If Congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner, and in a certain form, it cannot be that the state Legislatures have a right to interfere, and, as it were, by way of complement to the legislation of Congress, to prescribe additional regulations, and what they may deem auxiliary provisions for the same purpose. In such a case, the legislation of Congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be any further legislation to act upon the subject-matter. Its silence as to what it does not do is as expressive of what its intention is as the direct provisions made by it”

In Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. 564, 31 L. Ed. 508, the court says:

“The grant of power to Congress in the Constitution to regulate commerce with foreign nations and among the several states, it is conceded, is paramount over all legislative powers which, in consequence of not having been granted to Congress, are reserved to the states. It follows that any legislation of a state, although in pursuance of an acknowledged power reserved to it, which conflicts with the actual exercise of the power of Congress over the subject of commerce, must give way before the supremacy of the national authority. As the regulation of commerce may consist in abstaining from prescribing positive rules for its conduct, it cannot always be said that the power to regulate is dormant because not affirmatively exercised. And when it is manifest that Congress intends to leave that commerce, which is subject to its jurisdiction, free and unfettered by any positive regulations, such intention would be contravened by state laws operating as regulations of commerce as much as though these had been expressly forbidden. In such cases, the existence of the power to regulate commerce in Congress has been construed to be not only paramount but exclusive, so as to withdraw the subject as the basis of legislation altogether from the states.”

The case of Northern Pacific R. Co. v. Washington seems to be applicable. The federal Honrs - of Service Act was passed March 4, 1907 (Act’ March 4, 1907, c. 2939, 34 Stat. 1415 [U. S. Comp. St. 1913, §§ 8677-8680]), but did not become effective until March 4, 1908. The state of Washington undertook to enforce during this interim an act regulating the hours of service of railway employés passed by its Legislature, but the Supreme Court said this could not be done. After stating the supremacy of Congress in this field of legislation, the court said:

‘‘This being the conceded premise upon which alone the state law could have been made applicable, it results that as the enactment by Congress of the law in question was an assertion of its power, by the fact alone of such manifestation that subject was at once removed from the sphere of the operation of the authority of the state. To admit the fundamental principle, and yet to reason that, because Congress chose to make its prohibitions take effect only after a year, the matter with which Congress dealt remained subject to state power, is to cause the act of Congress to destroy itself; that is, to give effect to the will of Congress as embodied in the postponing provision for the purpose of overriding and rendering ineifective the expression of the will of Congress to bring the subject within its control — a manifestation arising from the mere fact of the enactment of the statute. * * *
“But if we pass these considerations and consider the issue before us as one requiring merely an interpretation of the statute, we are of opinion that it becomes manifest that it would cause the statute to destroy itself to give to the clause postponing its operation for one year the meaning which must be affixed to it in order to hold that during the year of postponement state police laws applied. In the first place, no conceivable reason has been, or we think can be, suggested for the postponing provision if it was contemplated that the prohibitions of state laws should apply in the meantime. This is true because, if it be that it was contemplated that the subject dealt with should be controlled during the year by state laws, the postponement of the prohibitions of the act could accomplish no possible purpose. This is well illustrated by this case, where, by the ruling below, a state regulation substantially similar to that contained in the act of Congress is made applicable. In the second place, the obvious suggestion is that the purpose of Congress in giving time was to enable the necessary adjustments to be made by the railroads to meet the new conditions created by the act, a purpose which would, of course, be frustrated by giving to the provision as to postponement a significance which would destroy the very reason which caused it to be enacted.”

It is claimed further that Congress intended to cover the whole field of equipment used on interstate highways, and that it is clearly shown by the Act of March 2, 1903, c. 976, 32 Stat. 943 (U. S. Comp. St. 1913, §§ 8613-8615), which states that the provisions and requirements of the federal law relating to train brakes, automatic couplers, grab-irons, and to the height of drawbars, shall be held to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce.

In Southern Ry. Co. v. U. S., 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72, the Supreme Court says:

“It must be held that the original act, as enlarged by the amendatory one, is intended to embrace all locomotives, cars, and similar vehicles used on any railroad which is a highway of interstate commerce.”

In Southern Ry. Co. v. Railroad Commission of Indiana, 236 U. S. 439, 35 Sup. Ct. 304, 59 L. Ed. 661, the court said: r

“Without, therefore, discussing the many cases sustaining the. right of the states to legisjate on subjects which, while not burdening, may yet incidentally affect interstate commerce, it is sufficient here to say that Congress has so far occupied the field of legislation relating to the equipment of freight cars with safety appliances as to supersede existing and prevent further legislation on that subject.”

A history of the legislation, it is claimed, also makes manifest the purpose of Congress to cover the whole field. The act, as originally introduced, did not contain an exemption clause, but during its discussion in the Senate, and after its passage by the House, Sen. Blodgett offered the following amendment:

“•Provided that nothing in this act shall apply to trains composed of four-wheel cars or to locomotives used in hauling such trains.”

In stating the reason for the amendment, he said:

“I presume most Senators understand that coal from the mines is transported to the seaboard in four-wheel cars. The custom is to run such cars to the junction points of lateral roads and from those junction points to the mines where they are loaded. The four-wheel cars are used because it would be practically impossible to run an eight-wheel ear to the mines over the sharp grades and around the sharp curves necessary in reaching the mines. The coupling construction is a peculiar one, and is adapted to that peculiar work. A hook arrangement and link are used, with considerable lost motion between the cars.
“It is necessary to use that appliance, as I said, in order to go around the sharp curves. I believe it would be practically impossible to place the train brake and automatic coupler upon cars such as are used in that traffic, and, if the bill is not amended as I propose, it will compel a reshipment of coal at all the junction points on the lateral roads to the main stem.” Discussion of H. B. 9350, Cong. Bee. vol. 24, p. 1477.

The amendment was adopted and concurred in by the House, and the President approved the bill as amended. Before the act took effect, however, the proviso was changed to its present form, which is as above quoted.

Preceding the adoption of the amended proviso by the Senate, Sen. Wolcott, stating the reason for it, said:

“There has just come over from the other House a bill to amend the act to promote the safety of employés and travelers. A similar bill was unanimously reported from the Committee on Interstate Commerce of the Senate, the effect of which is merely to provide that trains used exclusively for logging may be relieved from tlie provisions of the act. The cars used in logging trains, of which there are about 400 in the United States, are only 24 inches high, and it is physically impossible to equip them with grabirons and other appurtenances required by law. The act goes into force very soon, and I hope the bill may now be passed. It has passed the House of Representatives and a similar bill has passed our committee unanimously.” Discussion of H. R. 5828, Cong. Rec. vol. 28, pt. 4, p. 3129.

Therefore it is claimed: That nothing in any of the cases cited by appellant applies to this particular case, and that those cases do not conflict with the ones upon which appellees rely. That they simply announce and apply the principle that in matters of this class the states may not dispute —that in matters of this class the states may legislate until Congress enters the particular field covered by the state legislation, and that there is nothing in them that can be construed as authority for the proposition that the state law can be enforced as to logging equipment. That none of them involves an attempt by a state to regulate a matter which Congress has said shall be exempt from regulation, and that the legislation sustained by them was sustained, not because of a divided authority, but because it was held that as to the particular subject-matter Congress had not manifested a purpose' to deal with it.

He are referred to the following cases to sustain appellees’ position: Articles 8605-8623, U. S. Compiled Statutes, 1913; Southern Ry. Co. v. U. S., 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72; Southern Ry. Co. v. Railroad Commission of Indiana, 236 U. S. 439, 35 Sup. Ct. 304, 59 D. Ed. 661; Northern Pac. Ry. Co. v. Washington, 222 U. S. 370, 32 Sup. Ct. 160, 56 L. Ed. 237; Chicago, Rock Island & Pac. Ry. Co. v. Hardwick Farmers’ Elev. Co., 226 U. S. 426, 33 Sup. Ct. 174, 57 L. Ed. 284, 46 L. R. A. (N. S.) 203; Erie R. R. Co. v. New York, 233 U. S. 671, 34 Sup. Ct. 756, 58 L. Ed. 1149, 52 L. R. A. (N. S.) 266, Ann. Cas. 1915D, 138; M., K. & T. v. Harris, 234 U. S. 412, 34 Sup. Ct. 790, 58 L. Ed. 1377, L. R. A. 1915E, 942; Minnesota Rate Cases, 230 U. S. 352, 33 Sup. Ct. 729, 57 L. Ed. 1511; Texas & P. R. Co. v. U. S., 234 U. S. 342, 34 Sup. Ct. 833, 58 L. Ed. 1341; Southern Ry. Co. v. Reid, 222 U. S. 424, 32 Sup. Ct. 140, 56 L. Ed. 257; Houston v. Moore, 18 U. S. (5 Wheat.) 1, 5 L. Ed. 19; Prigg v. Pennsylvania, 41 U. S. (16 Pet.) 539, 10 L. Ed. 1060; Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. 564, 31 L. Ed. 508; Charleston & W. C. Ry. Co. v. Varnville Furniture Co., 237 U. S. 597, 35 Sup. Ct. 715, 59 L. Ed. 1137, decided by the United States Supreme Court, June 1, 1915; Congressional Record, vol. 24, p. 1477; Congressional Record, vol. 28, part 4, p. 3129.

By appellees’- second counter proposition, it is claimed that the state Safety Appliance Act being in part inoperative, and the part, if any, which it was within the jurisdiction of the state Legislature to" pass being so intermingled with the part over which the Legislature had no jurisdiction that one cannot be separated from the other and the court cannot say the good would have been passed without the bad, the act must fail in whole, citing Western Union Tel. Co. v. State, 62 Tex. 630; Ill. Central Ry. Co. v. McKendree, 203 U. S. 529, 27 Sup. Ct. 153, 51 L. Ed. 298; Employers’ Liability Cases, 207 U. S. 501, 28 Sup. Ct. 141, 52 L. Ed. 297; El Paso & Northeastern Ry. Co. v. Gutierrez, 215 U. S. 87, 30 Sup. Ct. 21, 54 L. Ed. 106; State v. Mo. Pac. Ry. Co., 212 Mo. 658, 111 S. W. 500.

The argument in favor of this proposition is very persuasive. The following is from the Employers’ Liability Cases:

“As tlie act before us by its terms relates to every common carrier engaged in interstate commerce and to any of the employes of every such carrier, thereby regulating every relation of a carrier engaged in interstate commerce with its servants and of such servants among themselves, we are unable to say that the statute would have been enacted had its provisions been restricted to the limited relations of that character which it was within the power of Congress to regulate. On this subject the opinion in the Trade-Mark Cases, 100 U. S. 82 [25 L. Ed. 550], where an act of Congress concerning trademarks was held to be unconstitutional, because too broad in its scope, is pertinent and instructive. The court said (page 99 of 100 U. S. [25 L. Ed. 550]: ‘If we should, in the case before us, undertake to make 'by judicial construction a law which Congress did not make, it is quite probable we should do what, if the matter were now before that body, it would be unwilling to do, namely, make a trade-mark law which is only partial in its operation, and which would complicate the rights which parties would hold, in some instances under the Act of Congress, and in others under state law. Cooley, Const. Lim. 178, 179; Commonwealth v. Uitchings, 5 Gray (Mass.) 482.’ ”

It was held that the provisions of the statute were inseparable as to the matters mentioned, and therefore they could not -stand as to any employes.

The Illinois Central Ry. Co. v. McKendree Case, supra, involved the validity of an order of the Secretary of Agriculture, covering both intrastate and inthrstate commerce. The court said it had no means of knowing whether the Secretary would have made the order if limited to interstate commerce, it being in terms single and indivisible, and declared it void in whole. The following from United States v. Reese, 92 U. S. 221, 23 L. Ed. 563, was qhoted with approval:

“We are therefore directly called upon to decide whether a penal statute enacted by Congress, with its limited powers, which is in general language broad enough to cover wrongful acts without as well as within the constitutional jurisdiction, can be limited by judicial construction so as to make it operate only on that-which Congress may rightfully prohibit and punish. For this purpose, we must take these sections of the statute as they are. We are not able to reject a part which is unconstitutional, and retain the remainder, because it is not possible to separate that which is unconstitutional, if there be any such, from that which is not. The proposed effect is not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not now there. Each of the sections must stand as a whole, or fall together. The language is plain. There is no room for construction, unless it be as to the effect of the Constitution. The question, then, to be determined, is whether we can introduce words of limitation into a penal statute so as to make it specific, when, as expressed, it is general only.”

In Railway Co. v. Gutierrez, supra, it is stated by the court that the question to be considered in cases of this kind is as follows

“It remains to inquire whether it is plain that Congress would have enacted the legislation had the act been limited to the regulation of the liability to employes engaged in commerce within the District of Columbia and the territories. If we are satisfied that it would not, or that the matter is in such doubt that we are unable to say what Congress would have done omitting the unconstitutional feature, then the statute must fall” — citing Ill. Central Ry. Co. v. McKendree, supra, and Employer’s Liability Cases, 207 TJ. S. 501, 28 Sup. Ct. 141, 52 L. Ed. 297.

The Western Union Telegraph Company Case well illustrates the application of the principle. It involved the question whether a law taxing telegraph messages, which had been declared void as to interstate telegrams by the Supreme Court of the United States, could be enforced as to state telegrams. The court held that it could not, saying:

“We are of the opinion that the different parts of the act under consideration are so intimately connected that the invalidity of a part of the law renders the entire law invalid.”

It is claimed by appellees that to apply this test no part of the act can stand, even if it be admitted that Congress has not occupied the whole field. The state law applies to all equipment used in handling intrastate commerce. Logging equipment, conceding that the logging business is so conducted as to make it intrastate commerce — a question not now before the court — is a very small, perhaps not one-hundredth, part of such equipment. Practically all the railroad companies in the state are engaged in interstate commerce, a fact which the court judicially knows (State v. Mo. Pac. Ry. Co., 212 Mo. 658, 111 S. W. 500), and therefore, upon any theory, the federal law, which had been long in force when the state acted, covers the greater part of the equipment to which the state law is applicable. That at the time the state law was passed, however, the opinion in Southern Ry. Co. v. United States, 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72, had not been handed down, and the Legislature doubtless thought the federal law would be construed as limited to equipment used in handling interstate commerce. At any rate, it intended that its enactment should be enforced as to all equipment except that used in interstate commerce. But since the Supreme Court has held this cannot be done, it necessarily follows that the state law must have a much more limited application than the Legislature intended.

We have examined all the decisions referred to and cited, together with all decisions available, with reference to matters applicable. Counsel have been happy in their presentation of this cause, and have been of great assistance to the court. After a most careful investigation, we are- led to the conclusion that Congress, exercising power- conferred upon it by the commerce clause of the federal Constitution, has entered upon and covered the field of legislation to which the state Safety Appliance Act (articles 6709, 6710), applies, and that, its enactment being superior to that of the state, no penalties can be recovered for a violation of the state law in that respect.

We therefore are of opinion that the trial court did not commit error in sustaining demurrers to plaintiff’s petition. . Appellant’s assignments are overruled, and the judgment of the lower court is in all things affirmed.
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