SANBORN, Circuit Judge.
The Colorado & Northwestern Railroad Company, a corporation, owned and operated a railroad about 10 miles in length from Boulder to Sunset, and two branches each about 18 miles in length, to Eldora and Ward, respectively. This railroad had a narrow gauge and was entirely within the state of Colorado, but its track had a physical connection with the tracks of the narrow gauge [343]*343railroads of other companies so that cars could be hauled over narrow gauge railroads from points without the state of Colorado to Boulder, and thence over the railroad of the Northwestern Company. This railroad company was handling express matter over its railroad in accordance with the terms of a contract between its predecessor and Wells, Fargo & Company, an independent express company, whereby the railroad company provided upon each of its passenger, mail, and express trains space and facilities in suitable cars for the storing and handling of, and received and carried on its railroad, all freight, packages, and treasure which the express company tendered to it for transportation, and the express company paid the railroad company therefor 50 per cent, of the gross earnings received by the express company in its operation on the lines of the railroad company, and on through and interchanged business, upon an appraisement based on local merchandise rates. In accordance with this practice the Northwestern Company hauled on July 16, 1906, for the express company, from Boulder to Sunset on its railroad, with an engine that was not equipped with an automatic coupler, a box of liquor which had been received by the express company at St. Louis in the state of Missouri, consigned to Sunset in the state of Colorado, and which was carried by the express company upon its through bill of lading to and delivered at Sunset. The railroad company did not receive, issue a bill of lading for, handle or deliver the package, except as it received it in its car and carried it for the express company in conformity to the practice which has been described. The United States brought an action against the Northwestern Company for the penalty fixed by the safety appliance acts (Act March 2, 1893, c. 196, § 1, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174] ; Act April 1, 1896, c. 87, 29 Stat. 85 ; Act March 2,1903, c. 976, § 1, 32 Stat. 943 [U. S. Comp. St. Supp. 1907, p. 885]) for its use in moving interstate traffic of an engine unequipped with an automatic coupler, and upon the facts which have been recited the court instructed the jury to return a verdict for the defendant. The United States insists that this ruling was erroneous, and counsel for the railroad company endeavor to sustain it on the grounds (1) that the express company was not a common carrier subject to the provisions of the interstate commerce act of February 4, 1887, c. 104, § 1, 24 Stat. 379 [U. S. Comp. St. 1901, p, 3154], and hence the railroad company which carried its packages was not engaged in interstate commerce by railroad within the meaning of the safety appliance acts, and (2) because the Northwestern Company was not subject to the interstate commerce act for the reason that it did not transport the express package, or any other articles of interstate commerce “under a common control, management or arrangement (with another carrier) for a continuous carriage or shipment” and hence was not “engaged in interstate commerce by railroad” within the meaning of the safety appliance acts. It was upon these theories that the. case was tried and the verdict was directed below.
But although the express company was not one of the common carriers engaged in interstate commerce to which the original interstate commerce act applied (U. S. v. Morsman [D. C.] 42 Fed. 448; South[344]*344ern Indiana Exp. Co. v. U. S. Exp. Co. [C. C.] 88 Fed. 659), the box of liquor it caused to be transported from Missouri to Colorado was an article of interstate commerce, its carriage was a transaction of that commerce, and the express company’s participation in its transportation was engaging in interstate commerce. Crutcher v. Kentucky, 141 U. S. 47, 57, 58, 59, 11 Sup. Ct. 851, 35 L. Ed. 649; Osborne v. Florida, 164 U. S. 650, 655, 17 Sup. Ct. 214, 41 L. Ed. 586; Caldwell v. North Carolina, 187 U. S. 622, 629, 23 Sup. Ct. 229, 47 L. Ed. 336. Moreover, the interstate commerce act had been so amended that express companies were subject to its provisions before the transportation here in issue was conducted. Act June 29, 1906, c. 3591, §§ 1 and 11, 34 Stat. 584, 595 [U. S. Comp. St. Supp. 1907, pp. 892, 911]. The safety appliance acts declare that “it shall be unlawful for any common carrier engaged in interstate commerce by railroad” (27 Stat. 531, § 1) “to haul or permit to be hauled or used on its line any car” (or engines — Johnson v. Southern Pac. R. Co., 196 U. S. 1, 25 Sup. Ct. 158, 49 L. Ed. 363 — except four-wheeled cars and certain logging cars, section 6), “used in moving interstate traffic unequipped with couplers coupling automatically by impact” (section 2), and that every such carrier shall be liable to a penalty of $100 for each violation of the statute. The Northwestern Company transported the box of liquor upon its railroad from Boulder to Sunset for the express company, on its continuous passage from its origin in one state to its prescribed destination in another, and evidence was rejected upon the trial that it was a daily occurrence for this railroad to carry express matter in its cars which had been consigned from points without to places within the state of Colorado. That rejected evidence should have been received because it had a tendency to show that the railroad company was engaged in interstate commerce and if the testimony had fulfilled the promise of the question propounded to elicit it and had been uncontradicted, the fact would have been established that the company was thus engaged within the meaning of the safety appliance acts. The transportation by a common carrier by railroad of articles of interstate commerce for an independent express company is engaging in interstate commerce by railroad as effectually as their carriage by it for the vendors or consignors.
Probably the clause “under a common control, management or arrangement for a continuous carriage or shipment” in the first section of the interstate commerce act qualified carriers “partly by railroad and partly by water” only, although there is high authority to the contrary (U. S. v. Geddes, 65 C. C. A. 320, 131 Fed. 452; Interstate Commerce Commission v. Bellaire, Z. & C. Ry. Co. [C. C.] 77 Fed. 942; Ex parte Koehler [C. C.] 30 Fed. 867; U. S. v. Chicago, K. & S. R. Co. [C. C.] 81 Fed. 783) and it is certain that this clause is thus-limited in its effect-since the passage of the amendatory act of June 29, 1906 (34 Stat. 584, 595, c. 3591, §§ 1, 11 [U.- S. Comp. St. Supp. 1907, pp. 892, 911]). Conceding, however, but not deciding or admitting}, that, this-.clause qualified and specified the common carriers wholly by. railroad that were subject.-.to -the. provisions of the interstate commerce .act prior, to the. .amendments of 1906, the clause, is [345]
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SANBORN, Circuit Judge.
The Colorado & Northwestern Railroad Company, a corporation, owned and operated a railroad about 10 miles in length from Boulder to Sunset, and two branches each about 18 miles in length, to Eldora and Ward, respectively. This railroad had a narrow gauge and was entirely within the state of Colorado, but its track had a physical connection with the tracks of the narrow gauge [343]*343railroads of other companies so that cars could be hauled over narrow gauge railroads from points without the state of Colorado to Boulder, and thence over the railroad of the Northwestern Company. This railroad company was handling express matter over its railroad in accordance with the terms of a contract between its predecessor and Wells, Fargo & Company, an independent express company, whereby the railroad company provided upon each of its passenger, mail, and express trains space and facilities in suitable cars for the storing and handling of, and received and carried on its railroad, all freight, packages, and treasure which the express company tendered to it for transportation, and the express company paid the railroad company therefor 50 per cent, of the gross earnings received by the express company in its operation on the lines of the railroad company, and on through and interchanged business, upon an appraisement based on local merchandise rates. In accordance with this practice the Northwestern Company hauled on July 16, 1906, for the express company, from Boulder to Sunset on its railroad, with an engine that was not equipped with an automatic coupler, a box of liquor which had been received by the express company at St. Louis in the state of Missouri, consigned to Sunset in the state of Colorado, and which was carried by the express company upon its through bill of lading to and delivered at Sunset. The railroad company did not receive, issue a bill of lading for, handle or deliver the package, except as it received it in its car and carried it for the express company in conformity to the practice which has been described. The United States brought an action against the Northwestern Company for the penalty fixed by the safety appliance acts (Act March 2, 1893, c. 196, § 1, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174] ; Act April 1, 1896, c. 87, 29 Stat. 85 ; Act March 2,1903, c. 976, § 1, 32 Stat. 943 [U. S. Comp. St. Supp. 1907, p. 885]) for its use in moving interstate traffic of an engine unequipped with an automatic coupler, and upon the facts which have been recited the court instructed the jury to return a verdict for the defendant. The United States insists that this ruling was erroneous, and counsel for the railroad company endeavor to sustain it on the grounds (1) that the express company was not a common carrier subject to the provisions of the interstate commerce act of February 4, 1887, c. 104, § 1, 24 Stat. 379 [U. S. Comp. St. 1901, p, 3154], and hence the railroad company which carried its packages was not engaged in interstate commerce by railroad within the meaning of the safety appliance acts, and (2) because the Northwestern Company was not subject to the interstate commerce act for the reason that it did not transport the express package, or any other articles of interstate commerce “under a common control, management or arrangement (with another carrier) for a continuous carriage or shipment” and hence was not “engaged in interstate commerce by railroad” within the meaning of the safety appliance acts. It was upon these theories that the. case was tried and the verdict was directed below.
But although the express company was not one of the common carriers engaged in interstate commerce to which the original interstate commerce act applied (U. S. v. Morsman [D. C.] 42 Fed. 448; South[344]*344ern Indiana Exp. Co. v. U. S. Exp. Co. [C. C.] 88 Fed. 659), the box of liquor it caused to be transported from Missouri to Colorado was an article of interstate commerce, its carriage was a transaction of that commerce, and the express company’s participation in its transportation was engaging in interstate commerce. Crutcher v. Kentucky, 141 U. S. 47, 57, 58, 59, 11 Sup. Ct. 851, 35 L. Ed. 649; Osborne v. Florida, 164 U. S. 650, 655, 17 Sup. Ct. 214, 41 L. Ed. 586; Caldwell v. North Carolina, 187 U. S. 622, 629, 23 Sup. Ct. 229, 47 L. Ed. 336. Moreover, the interstate commerce act had been so amended that express companies were subject to its provisions before the transportation here in issue was conducted. Act June 29, 1906, c. 3591, §§ 1 and 11, 34 Stat. 584, 595 [U. S. Comp. St. Supp. 1907, pp. 892, 911]. The safety appliance acts declare that “it shall be unlawful for any common carrier engaged in interstate commerce by railroad” (27 Stat. 531, § 1) “to haul or permit to be hauled or used on its line any car” (or engines — Johnson v. Southern Pac. R. Co., 196 U. S. 1, 25 Sup. Ct. 158, 49 L. Ed. 363 — except four-wheeled cars and certain logging cars, section 6), “used in moving interstate traffic unequipped with couplers coupling automatically by impact” (section 2), and that every such carrier shall be liable to a penalty of $100 for each violation of the statute. The Northwestern Company transported the box of liquor upon its railroad from Boulder to Sunset for the express company, on its continuous passage from its origin in one state to its prescribed destination in another, and evidence was rejected upon the trial that it was a daily occurrence for this railroad to carry express matter in its cars which had been consigned from points without to places within the state of Colorado. That rejected evidence should have been received because it had a tendency to show that the railroad company was engaged in interstate commerce and if the testimony had fulfilled the promise of the question propounded to elicit it and had been uncontradicted, the fact would have been established that the company was thus engaged within the meaning of the safety appliance acts. The transportation by a common carrier by railroad of articles of interstate commerce for an independent express company is engaging in interstate commerce by railroad as effectually as their carriage by it for the vendors or consignors.
Probably the clause “under a common control, management or arrangement for a continuous carriage or shipment” in the first section of the interstate commerce act qualified carriers “partly by railroad and partly by water” only, although there is high authority to the contrary (U. S. v. Geddes, 65 C. C. A. 320, 131 Fed. 452; Interstate Commerce Commission v. Bellaire, Z. & C. Ry. Co. [C. C.] 77 Fed. 942; Ex parte Koehler [C. C.] 30 Fed. 867; U. S. v. Chicago, K. & S. R. Co. [C. C.] 81 Fed. 783) and it is certain that this clause is thus-limited in its effect-since the passage of the amendatory act of June 29, 1906 (34 Stat. 584, 595, c. 3591, §§ 1, 11 [U.- S. Comp. St. Supp. 1907, pp. 892, 911]). Conceding, however, but not deciding or admitting}, that, this-.clause qualified and specified the common carriers wholly by. railroad that were subject.-.to -the. provisions of the interstate commerce .act prior, to the. .amendments of 1906, the clause, is [345]*345not found in any of the safety appliance acts, those acts plainly declare that it is unlawful for any common carrier engaged in interstate commerce by railroad to use cars unequipped with automatic couplers to move interstate traffic, and notwithstanding the opinion of the Circuit Court of Appeals of the Sixth Circuit in U. S. v. Geddes, 65 C. C. A. 320, 131 Fed. 452, which has been thoughtfully considered with that profound respect and deference which is due to the views of the eminent judges who announced it, our minds have been forced to the conclusion that the exception of common carriers using cars upon railroads wholly within single states to move interstate traffic free from “a common control, management or arrangement” with another carrier for a continuous carriage or shipment, may not be lawfully imported by construction into the safety appliance acts. The reasons which have led us to this conclusion have been stated in the opinion in United States v. Colorado & Northwestern Railroad Company, 157 Fed. 321, which is filed herewith, and it is useless to repeat them here.
Our conclusion is that a common carrier which operates a railroad entirely within a single state and transports thereon articles of commerce shipped in continuous passages from places without the state to stations on its road, or from stations on its road to points without the state, is subject to the provisions of the safety appliance acts, although it carries the property free from a common control, management, or arrangement with another carrier for continuous carriages or shipments of the goods.
In the light of this conclusion error crept into the trial of the case in the court below because it followed the contrary view, and for this reason the judgment below must be reversed, and the case must be remanded to the District Court for a new trial, and it is so ordered.