OPINION ON REHEARING.
The opinion of the court was delivered by
Graves, J. :After the opinion had been filed in this case the interstate- commerce commission requested' that a rehearing be granted and that it be permitted, through special counsel, to present an argument, both oral and printed, .upon the questions involved in the case. The defendant in error joined in this request. Appreciating the deep interest taken by this national tribunal in all cases arising under the provisions of the safety-appliance statute, and being anxious to receive all the light possible upon the questions involved, the rules applicable to ordinary actions were waived and the request granted.
At the rehearing extended arguments were pre-sented, accompanied by an elaborate citation of au*23thorities. We have carefully examined the briefs and decisions submitted, and have reconsidered the questions discussed; but are unable to accept the contention of defendant in error as to the meaning of the federal statute when applied to the facts of this case, and therefore adhere to the opinion heretofore filed.
In the argument our attention was called to a question which was overlooked when the case was decided. It was urged before, and is insisted upon now, that the safety appliance act should not be considered, for the reason that the plaintiff’s petition does not allege a violation of any of its provisions. The force of this position is found in the following facts; The injury complained of was received November 12, 1900. At that time .section 2 of this statute prohibited railroad companies from hauling any car used in moving interstate traffic and not equipped with the appliance required. In 1903 the law was amended so as to make its provisions apply, not to a car used in moving interstate traffic merely, but to all trains or cars used on any railroad engaged in interstate commerce. The petition, does not allege that the car which caused the injury was being used in moving interstate traffic. It is, therefore, insufficient under the law as it stood when the injury occurred. It was held to be sufficient, however, because it contained averments which, by a very liberal construction, could be said to allege that the car by which the injury was inflicted constituted a part of a train owned and qperated by a railroad company engaged in interstate commerce, which made it sufficient under the law as amended some three years after the cause of action accrued. The importance of these dates was not clearly indicated in the first argument, and was overlooked when the case was first considered.
The plaintiff in error was entitled to a reversal of the judgment upon this ground alone, and the case might have been so decided, if these facts had' been clearly presented. We- are satisfied, however, with the position taken in the opinion, and still adhere to it.
*24In view of the foregoing facts we now place the judgment of reversal both upon the ground that the petition does not state a cause of action under the statute and because the trial court erred in its instructions to the jury.
The original opinion is affirmed.