1920. HOLLIS v. KUTZ. Affirmed. 1231, 1232, 37 Sup. Ct. Rep. 732. In Public Utilities Commission of the Dis- Rule to show cause discharged. Mr. Roscoe F. Walter argued the cause and filed a brief for appellants: The supreme court of the District had Interstate Commerce Commission v. [452] WILLIAM HOLLIS and Sam Good- L. ed. 431, 433, 33 Sup. Ct. Rep. 185; man, Appts., V. CHARLES W. KUTZ, Chairman, Louis Commissioners of the District of Colum bia, and as Such Constituting the Public Utilities Commission of the District of Columbia, and the Washington Gas Light Company. (See S. C. Reporter's ed. 452-455.) attack Public Utilities Commission on rate orders – necessity of previous resort to commission. 1. A formal complaint and hearing benot conditions fore the commission are a suit in equity, brought precedent to under the Act of March 4, 1913, § 8, ¶ 64, by a person interested and dissatisfied with rate-making orders of the Public Utilities Commission of the District of Columbia, to have such orders declared void. Constitutional law gas rates. 2. Constitutional discrimination rights of private customers of a gas company are not in vaded by rate-making orders of the Public Utilities Commission of the District of Columbia, increasing the rates as to such customers, but leaving untouched the existing lower statutory rates charged the United States and the District, since such customers have no right to require equality with the government. [For other cases, see Constitutional Law, IV. [No. 397.] Argued March 2, 1921. Decided March 21, 1921. A Note. As to right to discriminate be- V. Skinner & E. Corp. v. United States, 249 The power of the commission to relieve Houston, E. & W. T. R. Co. v. United The action of the commission in fixing the 90-and 95-cent rates to the private consumers without, at the same time, determining and fixing a reasonable rate to the governments, and, of course, without regard to such government rate, was beyond the authority of the commission, and illegal. Southern P. Co. v. Interstate Commerce Commission, 219 U. S. 433, 441, 444, 55 L. ed. 283, 285, 287, 31 Sup. Ct. Rep. 288. The 90- and 95-cent rates prescribed by the orders of the Public Utilities Commission are confiscatory, depriving appellants of their property without due process of law; and such orders are therefore unconstitutional and void, and this power to fix rates to the governments and regardless of whether the commission has all others not private consumers. Willcox v. Consolidated Gas Co. 212 U. S. 19. 53 L. ed. 382, 48 L.R.A. (N.S.) 1134, 29 Sup. Ct. Rep. 192, 15 Ann. Cas. 1034; Hooker v. Interstate Commerce Commission, 188 Fed. 248. The failure of the Utilities Commission to give the statutory notice rendered the on the application for the second rate inorder made in pursuance of the hearings crease null and void. 727 Interstate Commerce Commission v. Louisville & N. R. Co. 227 U. S. 88, 91, 57 L. ed. 431, 433, 33 Sup. Ct. Rep. 185; Wilmington City R. Co. v. Taylor, 198 Fed. 159. Mr. Benjamin S. Minor argued the cause, and, with Messrs. H. Prescott Gatley and Hugh B. Rowland, filed a brief for the Washington Gas Light Company. Mr. F. H. Stephens argued the cause, and, with Mr. Conrad H. Syme, filed a brief for the Public Utilities Commission. Mr. Justice Holmes delivered the opinion of the court: This is a bill in equity brought by private consumers of gas to have two orders of the Public Utilities Commission that increase the rate for gas to private consumers declared void. The first order, Number 254, March 15, 1918, raised the rate from 75 cents per thousand feet to 90 cents. The second, No. 314, March 15, 1919, raised it to not exceeding 95 cents; the orders being made under the authority of the Act of March 4, 1913, chap. 150, § 8, 37 Stat. at L. 938, 974, et seq., establishing the Public Utilities Commission of the District of Columbia and fixing its powers. The bill and the appeal to this court are said to be based upon 64 of § 8, 37 Stat. at L. 988. It is alleged that the orders violate the plaintiffs' constitutional rights because the rate to be charged to the United States and to the District remains the statutory rate of 70 cents, and to certain other takers still less, and that if the United States and District had paid 90 cents for the year 1918, the Gas Company would have received a return of about 6 per cent. It is said that the difference is an unlawful discrimination, and that the plaintiffs are required to make up the loss incurred by furnishing the gas to the government and the district at less than cost. The bill was dismissed by the supreme court for want of equity, and because not filed within one hundred and twenty days after the entry of the order of March 15, 1918, as required by § 8, 65. The court of appeals affirmed the decree on the different ground that [454] a formal complaint and hearing before the commission were a condition of the right to sue in the courts. The provision in ¶ 67 for the transmission of any new evidence taken in the suit to the commission for its further consideration, and other details, were thought to indicate that the suit was in the nature of an appeal. We are unable to agree with the opinion of the court of appeals. Assuming that the bill is based upon the statute, the language of 64 is that any person interested and dissatisfied with any order fixing any rate may commence a proceeding in equity. We do not perceive any advantage in requiring a party to file a complaint asking the commission to review a decision just reached by it after a public hearing, nor do we see such a requirement in the statute. On the other hand, we see no requirement that the plaintiffs in equity should have appeared in the original hearing upon the rate. They are parties to the order equally whether they saw fit to argue the case to the commission or not; and when they stand upon supposed constitutional rights there seems to be no necessity of raising the point until they get into court. This suit is not for a revision of details, but for a decree that the orders are void as matter of law. That by reason of their pecuniary interest the plaintiffs are persons interested within the statute may be assumed for the purposes of decision. Interstate Commerce Commission v. Diffenbaugh, 222 U. S. 42, 49, 56 L. ed. 83, 88, 32 Sup. Ct. Rep. 22, s. c. F. H. Peavey & Co. v. Union P. R. Co. 176 Fed. 409, 416, 417. See Detroit & M. R. Co. v. Michigan R. Commission, 235 U. S. 402, 59 L. ed. 288, 35 Sup. Ct. Rep. 126. On the merits, however, there is no doubt that the decree was right. We do not wish to belittle the claim of a taker of what for the time has become pretty nearly a necessity to equal treatment while gas is furnished the public. But the notion that the government cannot make it a condition of allowing the establishment of gas works that its needs and the needs of its instrument, the District, shall be [455] satisfied at any price that it may fix, strikes us as needing no answer. The plaintiffs are under no legal obligation to take gas, nor is the government bound to allow it to be furnished. If they choose to take it, the plaintiffs must submit to such enhancement of price, if any, as is assignable to the government's demands. We do not consider whether the commission has power to raise the price to the excepted class because, even if it has, the plaintiff's have no right to require equality with the government, and they have no other ground upon which to found their supposed right. Decree affirmed. ANNA LANG, as Administratrix, etc., of, Argued March 1, 1921. Decided March 28, Oscar G. Lang, Deceased, Petitioner, 2. Nothing in the provisions of the Federal Safety Appliance Acts gives any warrant for saying that they are intended to provide a place of safety between colliding cars. On the contrary, they affirmatively show that the principal purpose in their enactment was to obviate the necessity for men going between the ends of the cars. [For other cases, see Master and Servant, II. a, 2, d, in Digest Sup. Ct. 1908.] Master and servant- Safety Appliance proximate cause. 3. A carrier's failure to have the end Acts breach of a loaded freight car standing on a siding equipped with the coupler and drawbar prescribed by the Federal Safety Appliance Acts, the purpose of which is to obviate the necessity for men to go between the ends of the cars, was not an actionable breach of duty towards a brakeman who was injured in a collision between such car, of whose defects he was aware, and another car on which he was riding, which the engine had kicked on the same siding, although had these appliances been present there would have been sufficient room between the ends of the two cars to prevent the injury, where there was no present intention to disturb, couple, or move the defective car, since the collision was not the proximate result of the defect, but of the brakeman's failure to perform his duty to stop the moving car in time to avoid the collision. [For other cases, see Master and Servant, II. 1921. If the defective coupling contributed in whole or in part to the death of intestate, that is sufficient to establish absolute liability. Neither contributory negligence nor assumption of risk can avail defendant as a defense. Union P. R. Co. v. Huxoll, 245 U. S. 535, 62 L. ed. 455, 38 Sup. Ct. Rep. 187; San Antonio & A. P. R. Co. v. Wagner, 241 U. S. 476, 60 L. ed. 1110, 36 Sup. Ct. Rep. 626; Atlantic City R. Co. v. Parker, 242 U. S. 56, 61 L. ed. 150, 37 Sup. Ct. Rep. 69; Louisville & N. R. Co. v. Layton, 243 U. S. 617, 61 L. ed. 931, 37 Sup. Ct. Rep. 456; Texas & P. R. Co. v. Rigsby, 241 U. S. 33, 60 L. ed. 874, 36 Sup. Ct. Rep. 482; Delk v. St. Louis & S. F. R. Co. 220 U. S. 580, 55 L. ed. 590, 31 Sup. Ct. Rep. 617; Spokane & I. E. R. Co. v. Campbell, 133 C. C. A. 370, 217 Fed. 524; Grand Trunk Western R. Co. v. Lindsay, 233 U. S. 42, 58 L. ed. 838, 34 Sup. Ct. Rep. 581, Ann. Cas. 1914C, 168; Great Northern R. Co. v. Otos, 239 U. S. 349, 60 L. ed. 322, 36 a, 2, d; Proximate Cause, III. in Digest Sup. Ct. Rep. 124; Texas & P. R. Co. Sup. Ct. 1908.] [No. 290.] Note. As to liability under Federal and state railway safety appliance acts see notes to Chicago, M. & St. P. R. Co. v. United States, 20 L.R.A.(N.S.) 473, and Lake Shore & M. S. R. Co. v. Benson, 41 L.R.A. (N.S.) 49. On liability of railroad companies to switchmer or brakeman for injuries received while coupling cars-see notes to Kohn v. McNulta, 37 L. ed. U. S. 150, and Northern P. R. Co. v. Everett, 38 L. ed. U. S. 373. v. Rigsby, 241 U. S. 33, 60 L. ed. 874, 36 Sup. Ct. Rep. 482; Schlemmer v. Buffalo, R. & P. R. Co. 220 U. S. 590, 55 L. ed. 596, 31 Sup. Ct. Rep. 561; Chicago, B. & Q. R. Co. v. United States, 220 U. S. 559, 55 L. ed. 582, 31 Sup. Ct. Rep. 612; St. Louis, I. M. & S. R. Co. v. Taylor, 210 U. S. 281, 52 L. ed. 1061, 28 Sup. Ct. Rep. 616, 21 Am. Neg. Rep. 464. The intestate was within the protection of the act. Louisville & N. R. Co. v. Layton, 243 U. S. 617, 61 L. ed. 931, 37 Sup. Ct. Rep. 456; Minneapolis & St. L. R. Co. v. Gotschall, 244 U. S. 66, 61 L. ed. 995, 37 Sup. Ct. Rep. 598, 14 N. C. C. A. 865; Kimball v. New York C. R. Co. 223 N. Y. 711, 120 N. E. 865; Erie R. Co. v. Russell, 106 C. C. A. 160, 183 Fed. 724; Erie R. Co. v. Schleenbaker, 168 C. C. A. 617, 257 Fed. 667; Director General of Railroads v. Ronald, C. C. A. 265 Fed. 143. Mr. Maurice C. Spratt argued the cause and filed a brief for respondent: This case is ruled by St. Louis & S. F. R. Co. v. Conarty, 238 U. S. 243, 59 L. ed. 1290, 35 Sup. Ct. Rep. 785. drawbar, the draft timber, and the coupling apparatus on the westerly end of this car were gone. This car had been on the siding at Silver Creek several days, loaded with iron consigned to a firm at Silver Creek, waiting to be unloaded. Its condition was known to the crew of the way freight generally, and to the plaintiff's intestate prior to the accident. In fact, its crippled condition was the subject of conversations between him and the train conductor only shortly before the accident happened. In getting out the car for Farnham the engine went into the siding from the westerly end, pulled out a Mr. Justice McKenna delivered the string of six cars, including the Farnopinion of the court: at Silver Action for damages laid in the sum of $50,000 for injuries sustained by petitioner's intestate, Oscar G. Lang, while assisting in switching cars Creek, New York. The injuries resulted in death. The Safety Appliance Act is invoked as the law of recovery. There was a verdict for $18,000, upon which judgment was entered. It and the order denying a new trial were affirmed by the appellate division, March 5, 1918, by a divided court. The court of appeals reversed the judgments and directed the complaint to be dismissed, to review which action this certiorari is directed. commerce. In general description the court said: "In the case before us the defendant [respondent] was engaged in interstate A car without drawbar or coupler was standing on the siding. The plaintiff's intestate was a brakeman, and was riding on a second car kicked upon the same siding. A collision occurred, and the deceased was crushed between the car upon which he was riding and the defective car." [227 N. Y. 509, 125 N. E. 681.] ham car, then shunted the Farnham car onto an adjoining track, placed two of the other cars they had hauled out onto a third track, and then kicked the other three cars back onto the track where For the crippled car stood. Plaintiff's in- car. The statement that, "owing to the absence of the coupler attachment and bumpers on the crippled car, intestate's [458] leg was caught between the ends of the two cars," is disputed as a consequence or as element of decision independently of what Lang was to do and did,-indeed, it is the dispute in the case. Based on it, however, and the facts recited, the contention of petitioner is that they demonstrate a violation of the Safety Appliance Act, and justify the judgment of the trial court and its af firmance by the appellate division. For this Louisville & N. R. Co. v. Layton, 243 U. S. 617, 61 L. ed. 931, 37 Sup. Ct. Rep. 456, is cited. The The opposing contention of respond There is no dispute about the facts; there is dispute about the conclusions from them. We may quote, therefore, the statement of the trial court, passing upon the motion for new trial, as sufficient in its representation of the case. It is as follows: "The defendant had a loaded car, loaded with iron, which had been placed on a siding at the station at Silver Creek, New York. On the same track was also standing another car destined for Farnham, the [457] next station east. At Silver Creek this way freight had orders to leave a couple of cars and to take on the car going to Farnham. The car loaded with iron, above referred to, was defective. ent is that "the proximate cause of the accident was the failure of the deceased to stop the cars before they came in collision with the defective car. The absence of the coupler and drawbar was not the proximate cause of the injury, nor was it a concurring cause." To support the contention St. Louis & S. F. R. Co. v. Conarty, 238 U. S. 243, 59 L. ed. 1290, 35 Sup. Ct. Rep. 785, is adduced. The court of appeals considered the Conarty Case controlling. This petitioner contests, and opposes to it the Layton Case, supra, and contends that the court failed to give significance and effect to the fact that the car in the Conarty Case was out of use, and that, while out of use, the car upon which Conarty was riding collided with it; whereas in the case at bar, it is insisted that the defective car was in use by defendant, and was required to be used by the intestate. The trial court made this distinction and expressed the view that the defective car in the case at bar "must be deemed to have been in use within the meaning of the statute." The distinction, as we shall presently see, is not justified. It is insisted upon, however, and to what is considered its determination is added a citation from the Layton Case, declaring that the Safety Appliance Act makes "it unlawful for any carrier engaged in interstate commerce to use on its railroad any car not" equipped as there provided. And further: "By this legislation the qualified duty of the common carrier is expanded [459] into an absolute duty in respect to car couplers," and by an omission of the duty the carrier incurs "a liability to make compensation to any employee who" is "injured by it." But necessarily there must be a causal relation between the fact of delinquency and the fact of injury, and so the case declares. Its concluding words are, expressing the condition of liability, "that carriers are liable to employees in damages whenever the failure to obey these Safety Appliance Laws is the proximate cause of injury to them when engaged in the discharge of duty." The plaintiff recovered because the case came, it was said, within that interpretation of the statute. The court of appeals was of the view that it was the declaration of the Conarty Case that § 21 of the Safety Appliance Act "was intended to provide against the risk of coupling and uncoupling, and to obviate the necessity of men going between the ends of the cars. It was not intended to provide a place of safety between colliding cars," and that "the absence of a coupler and drawbar was not a breach of duty toward a servant in that situation." [227 N. Y. 508, 125 N. E. 681.] It further decided that Lang was in "that situation," and he "was not one of the persons for whose benefit the Safety Appliance Act was passed." [460] Two questions are hence presented for solution: (1) Was the court of appeals' estimate of the Conarty Case correct? (2) Was it properly applied to Lang's situation? (1) The court's conclusion that the requirement of the Safety Appliance Act "was intended to provide against the risk of coupling cars" is the explicit declaration of the Conarty Case. There, after considering the act and the Cases in exposition of it, we said, nothing in its provisions "gives any warrant for saying that they are intended to provide a place of safety between colliding cars. On the contrary, they affirmatively show that a principal purpose in their enactment was to obviate the necessity for men going between the ends of the cars. March 2, 1893, 27 Stat. at L. 531, chap. 196, Comp. Stat. § 8606, 8 Fed. Stat. Anno. 2d ed. p. 1161.'" The case was concerned with a collision between a switch engine and a defective freight car, resulting in injuries from which death ensued. The freight car was about to be placed on (we quote from the opinion) "an isolated track for repairs, and was left near the switch leading to that track while other cars were being moved out of the way,-a task taking about five minutes. At that time a switch engine with which the deceased was working came along the track on which the car was standing and 1 Sec. 2 of the Safety Appliance Act is as follows: "On and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier [one engaged in interstate comWe need not comment further upon merce] to haul or permit to be hauled or the case, nor consider the cases which used in its line any car used in moving it cites. There is no doubt of the duty interstate traffic not equipped with couplers of a carrier under the statute and its coupling automatically by impact, and imperative requirement, or of the con- which can be uncoupled without the necessequences of its omission. But the in- sity of men going between the ends of the quiry necessarily occurs, to what sit-cars." 27 Stat. at L. 531, chap. 196, Comp. uation and when, and to what employees, Stat. § 8606, 8 Fed. Stat. Anno. 2d ed. p. do they apply? 1161. 731 |