PRITCHARD, Circuit Judge.
This is an action instituted in th<; District Court of the United States for the Western District of Virginia to recover penalties for alleged violations of the “Safety Appliance Act.” The plaintiff alleges 12 causes of action and demands $1,200 aggregate penalties. Eleven of these causes are alike, alleging the violation of section 2 of the federal Safety Appliance Act approved March 2, 1903, demanding judgment.for $1,100 aggregate penalties. The eighth cause of action is in a class by itself (involving defective coupler, finally disposed of by the lower court).
Section 2 of the Safety Appliance Act, upon which plaintiff relies, is in the following language:
“Sec. 2. That whenever, as provided in said act, any train is operated with, power or train brakes, not less than fifty per centum of the cars in such train shall have their brakes used and operated by the engineer of the locomotive drawing such train; and all power-braked cars in such train which are associated together with said fifty per centum shall have their brakes so used and operated; and, to more fully carry into effect the objects of sstid act, the Interstate Commerce Commission may, from time to time, after full hearing, increase the minimum percentage of cars in any train required to be [50]*50operated with power or train brakes which must have their brakes used, and operated as aforesaid; and failure to comply with any such requirement of the said Interstate Commerce Commission shall be subject to the like penalty as failure to comply with any requirement of this section.”
By anorder entered November 15, 1905, the Interstate Commerce Commission increased the minimum percentage of power-braked cars as specified in the above section from 50 to 75 per cent., and on June 6, 1910, the percentage was further increased by the Commission from 75 to 85 per cent., the increáse to take effect September 1, 1910. The order requiring the last increase is in the following language
“That, on and after September 1, 1910, on all railroads used in interstate commerce, whenever, as required by the Safety Appliance Act as amended March 2, 1903, any train is operated with power, or train brakes, not less than 85 per cent, of the cars of such train shall have their brakes used and operated by the engineer of the locomotive drawing such train; and all power brake cars in every such train which are associated together with the 85 per cent, shall have their brakes so used and operated.”
It is insisted by the government:
“That the cars admitted to have possessed the air brake equipment but which equipment was not operated or so connected up as to be operated were power brake cars within the meaning of that term as used in section 2 of the act of 1903, and that the use of such cars in the condition described and in the manner alleged and admitted by the defendant was unlawful and in violation of the order of the Interstate Commerce Commission.”
In order to decide the point thus presented we must determine as to whether a railroad company, after having placed in its train 85 per cent, of cars equipped with workable air brakes, is then precluded from using any cars that have been cut out for defects in the remaining 15 per cent. The history of the safety appliance legislation shows that it was the purpose of Congress to secure the highest possible protection for employés and passengers. To accomplish this end railroad companies were required on and after the passage of this act to have at least 50 per cent, of the cars of any train equipped with proper air brakes, and later, as we have stated, this per cent, was increased to 75 by the Interstate Commerce Commission, and now the amount is fixed at 85 per cent., and it may be that at some future date the railroads will be enjoined with the duty of having 100 per cent, of the cars that may be operated in any train equipped with workable air brakes. However, such is not the case at this time, which leaves us to decide as to whether the use of cars with cut out brakes, but capable of being used for the purpose of transmitting air to cars properly equipped with brakes, is in violation of the act. Was it the intention of Congress that where a car had once been equipped with a workable air brake, but which became defective, should never be used again in a train made up of cars properly-equipped with the required percentage of air brakes?
It is conceded by counsel for the government that the cars equipped with old-fashioned hand brakes may be used as the 15 per cent, allowed by the requirements of the Interstate Commerce Commission. Inasmuch as 85 per cent, .of the train in question was composed of cars equipped with workable air brakes, which is deemed by the Interstate Commerce Commission to be sufficient to insure the safety of em[51]*51plo}’és and passengers, it became immaterial as to whether the remaining cars were equipped with air brakes or the ordinary hand brakes, and we cannot think of any possible reason why there should be any distinction made between the cars equipped with ordinary hand brakes and those with air brakes that had been cut out. It would be unreasonable, we think, for the government to make any such demand, and we do not believe that a fair, interpretation of the statute warrants a ruling to that effect. The statute which requires a railroad to equip its cars with proper air brakes was enacted for the sole purpose of having a sufficient number of cars thus equipped in every train so as to insure safety, and we think this, and this only, is the extent to which Congress intended that the law should be applied.
Among other things, the order of the Interstate Commerce Commission quoted above provides that:
“ * * s Whenever, as required by the Safety Appliance Act as amended March 2, 1903, any train is operated with power, or train brakes, not less than 85 per cent, of the cars of such train shall have their brakes used and operated by the engineer of the locomotive drawing such train.”
Rrom the foregoing it is manifest that it was not the purpose of Congress to require every car in a train equipped with power or train brakes to be used and operated by air. If such had been the original purpose of Congress, the duty would have been enjoined upon the railroads to keep 100 per cent, of its cars at all times equipped with air brakes that were in first-class condition and capable of being used. .
The Interstate Commerce Commission, in pursuance of the authority conferred upon it by Congress, undoubtedly has the right to require railroads to equip 100 per cent, of their cars with air brakes, but up to the present time they have not seen fit to adopt this policy. This is a function that rests solely with the Commission, and so long as the percentage remains as now fixed by it the courts have no authority to change the same.
The act further provides that:
“All power-braked cars in such train, which are associated together In said 50 per cent., shall have their brakes so used and operated.”
This provision clearly indicates that it was the purpose of the Congress that the railroad companies might use power brake cars not associated with the 50 per cent, that the railroad was not required to have operated as “p°wer brake cars” in a workable condition.
In the case of United States v. Baltimore & Ohio Railroad Co. (D. C.) 176 Fed. 114, District Judge Orr said:
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PRITCHARD, Circuit Judge.
This is an action instituted in th<; District Court of the United States for the Western District of Virginia to recover penalties for alleged violations of the “Safety Appliance Act.” The plaintiff alleges 12 causes of action and demands $1,200 aggregate penalties. Eleven of these causes are alike, alleging the violation of section 2 of the federal Safety Appliance Act approved March 2, 1903, demanding judgment.for $1,100 aggregate penalties. The eighth cause of action is in a class by itself (involving defective coupler, finally disposed of by the lower court).
Section 2 of the Safety Appliance Act, upon which plaintiff relies, is in the following language:
“Sec. 2. That whenever, as provided in said act, any train is operated with, power or train brakes, not less than fifty per centum of the cars in such train shall have their brakes used and operated by the engineer of the locomotive drawing such train; and all power-braked cars in such train which are associated together with said fifty per centum shall have their brakes so used and operated; and, to more fully carry into effect the objects of sstid act, the Interstate Commerce Commission may, from time to time, after full hearing, increase the minimum percentage of cars in any train required to be [50]*50operated with power or train brakes which must have their brakes used, and operated as aforesaid; and failure to comply with any such requirement of the said Interstate Commerce Commission shall be subject to the like penalty as failure to comply with any requirement of this section.”
By anorder entered November 15, 1905, the Interstate Commerce Commission increased the minimum percentage of power-braked cars as specified in the above section from 50 to 75 per cent., and on June 6, 1910, the percentage was further increased by the Commission from 75 to 85 per cent., the increáse to take effect September 1, 1910. The order requiring the last increase is in the following language
“That, on and after September 1, 1910, on all railroads used in interstate commerce, whenever, as required by the Safety Appliance Act as amended March 2, 1903, any train is operated with power, or train brakes, not less than 85 per cent, of the cars of such train shall have their brakes used and operated by the engineer of the locomotive drawing such train; and all power brake cars in every such train which are associated together with the 85 per cent, shall have their brakes so used and operated.”
It is insisted by the government:
“That the cars admitted to have possessed the air brake equipment but which equipment was not operated or so connected up as to be operated were power brake cars within the meaning of that term as used in section 2 of the act of 1903, and that the use of such cars in the condition described and in the manner alleged and admitted by the defendant was unlawful and in violation of the order of the Interstate Commerce Commission.”
In order to decide the point thus presented we must determine as to whether a railroad company, after having placed in its train 85 per cent, of cars equipped with workable air brakes, is then precluded from using any cars that have been cut out for defects in the remaining 15 per cent. The history of the safety appliance legislation shows that it was the purpose of Congress to secure the highest possible protection for employés and passengers. To accomplish this end railroad companies were required on and after the passage of this act to have at least 50 per cent, of the cars of any train equipped with proper air brakes, and later, as we have stated, this per cent, was increased to 75 by the Interstate Commerce Commission, and now the amount is fixed at 85 per cent., and it may be that at some future date the railroads will be enjoined with the duty of having 100 per cent, of the cars that may be operated in any train equipped with workable air brakes. However, such is not the case at this time, which leaves us to decide as to whether the use of cars with cut out brakes, but capable of being used for the purpose of transmitting air to cars properly equipped with brakes, is in violation of the act. Was it the intention of Congress that where a car had once been equipped with a workable air brake, but which became defective, should never be used again in a train made up of cars properly-equipped with the required percentage of air brakes?
It is conceded by counsel for the government that the cars equipped with old-fashioned hand brakes may be used as the 15 per cent, allowed by the requirements of the Interstate Commerce Commission. Inasmuch as 85 per cent, .of the train in question was composed of cars equipped with workable air brakes, which is deemed by the Interstate Commerce Commission to be sufficient to insure the safety of em[51]*51plo}’és and passengers, it became immaterial as to whether the remaining cars were equipped with air brakes or the ordinary hand brakes, and we cannot think of any possible reason why there should be any distinction made between the cars equipped with ordinary hand brakes and those with air brakes that had been cut out. It would be unreasonable, we think, for the government to make any such demand, and we do not believe that a fair, interpretation of the statute warrants a ruling to that effect. The statute which requires a railroad to equip its cars with proper air brakes was enacted for the sole purpose of having a sufficient number of cars thus equipped in every train so as to insure safety, and we think this, and this only, is the extent to which Congress intended that the law should be applied.
Among other things, the order of the Interstate Commerce Commission quoted above provides that:
“ * * s Whenever, as required by the Safety Appliance Act as amended March 2, 1903, any train is operated with power, or train brakes, not less than 85 per cent, of the cars of such train shall have their brakes used and operated by the engineer of the locomotive drawing such train.”
Rrom the foregoing it is manifest that it was not the purpose of Congress to require every car in a train equipped with power or train brakes to be used and operated by air. If such had been the original purpose of Congress, the duty would have been enjoined upon the railroads to keep 100 per cent, of its cars at all times equipped with air brakes that were in first-class condition and capable of being used. .
The Interstate Commerce Commission, in pursuance of the authority conferred upon it by Congress, undoubtedly has the right to require railroads to equip 100 per cent, of their cars with air brakes, but up to the present time they have not seen fit to adopt this policy. This is a function that rests solely with the Commission, and so long as the percentage remains as now fixed by it the courts have no authority to change the same.
The act further provides that:
“All power-braked cars in such train, which are associated together In said 50 per cent., shall have their brakes so used and operated.”
This provision clearly indicates that it was the purpose of the Congress that the railroad companies might use power brake cars not associated with the 50 per cent, that the railroad was not required to have operated as “p°wer brake cars” in a workable condition.
In the case of United States v. Baltimore & Ohio Railroad Co. (D. C.) 176 Fed. 114, District Judge Orr said:
“ « * s it ig averred in plaintiff’s statement of claim that, while the train had 75 per cent, of its cars used and operated by the engineer, there were associated together in said train with said 75 per cent, four additional train brake cars which did not have their brakes operated by the engineer. This charges a breach of the provisions of section 2 of the act of March 2, 3903, above quoted. It was admitted at the trial that said four cars were defective and out of repair. It did not appear how long their brakes had been unused. The testimony showed that they had their air ‘cut out’—that is, cut off in the pipes extending from the main air line of the train to the brakes. The air was not interfered with in passing through said cars to other cars. It seems plain that with brakes cut out for defects they ceased to be power-braked cars and became part of the allowed percentage of hand-braked cars. [52]*52The act nowhere imposes a penalty for using an air-braked car with a cut out brake, as it does for' using one with a defective coupler, or one without grabirons or handholds. Again, the act does not say all power-braked cars in a train shall have their brakes used and operated. There is a qualification which must mean that only such power-braked éars ‘which are associated together with said’ 75 per cent, shall have their brakes used. That clearly contemplated that there'might be some power-braked cars not associated with the 75 per cent., which need not have their air brakes used and operated. All the cars in the train, except the four cut-out cars, and the caboose, not complained of, were associated together in the air brake operations by the engineer of the locomotive. When the Interstate Commerce Commission shall, in the exercise of its powers, fix a minimum percentage of cars in any train required to be operated with power or train brakes, which must have their brakes used and operated as required by the act, at a minimum much greater than that which now is the standard, there may be some right' to recover upon a cause of action in which the allegations and proofs are similar to those in the case at bar.”
The Interstate Commerce Commission under authority conferred upon it by Congress has provided that in the making up of a train the railroad company must equip 85 per cent, of its cars with workable air brakes, and where the railroad, as in this instance, has fully complied with this requirement it is immaterial as to whether the remainder of the train is made up of cars equipped with- cut out air brakes or the ordinary train brakes. We think it is contrary to common sense and justice to hold otherwise.
Therefore the judgment of the court below is affirmed.