(concurring). — On this record, the most favorable view possible for respondent is that her husband was fireman on a locomotive drawing a train of empty freight cars from Moulton in Iowa to Moberly in Missouri, on the Wabash, an interstate railroad. These ears, the testimony shows, were mostly headed for St. Louis, Missouri, belonged to other roads, and were intended for distribution at St. Louis to the carriers owning them. On such a record, though doubting much at the hearing, I am constrained to concur in the opinion of our learned Presiding Judge, putting my'concurrence on the ground that the final arbiter on the question has spoken.
In North Carolina R. R. Co. v. Zachary, Administrator of Burgess, 232 U. S. 248, where-the precise point was in judgment, Mr. Justice Pitney spoke for the whole court in holding, first, that the Federal Employers ’ Liability Act is in pari materia with the Federal Safety Appliance Act; and, second, that the hauling of empty cars from one State to another is interstate commerce within the meaning of said Employers ’ Liability Act.
*489An excerpt from that case, encompassing the snm of the matter, will not be amiss:
“There seems to be no clear evidence as to the contents of these cars, and it is argued that, in the absence of evidence, it is as reasonable to infer that they were empty as that they were loaded; and that it was incumbent upon defendant to show that they contained interstate freight. We hardly deem it so probable that empty freight cars would be hauled from the Virginia point to Spencer. But were it so, the hauling of empty cars from one State to another is, in our opinion, interstate commerce within the meaning of the act. Such is the view that has obtained with respect to empty cars in actions based upon the Safety Appliance Act of March 2, 1893 (27 Stat. 531, c. 196). [Johnson v. Southern Pacific Co., 196 U. S. 1, 21; Voelker v. Railway Co., 116 Fed. 867, 873.] And the like reason applies, as we think, to actions founded upon the Employers’ Liability Act, which, indeed, is in pari materia with the other. ’ ’
As appositely put by Hook, Circuit Judge, speaking for the Circuit Court of Appeals, in Chicago, M. & St. P. Ry. Co. v. United States, 165 Fed. 423, if these cars, had been loaded on flat cars and were being transported in that fashion from Iowa to Missouri, there could be no shadow of question but that their carriage would be interstate commerce. Such being the case, what difference does it make in principle that they were being run on their own wheels and coupled by their own coupling to each other and to the engine? In other words, the traffic of interstate commerce “may as well consist of the property of carriers as the property of merchants.”
Learned counsel for appellant cite a line of cases under the Safety Appliance Act showing that under circumstances here the Safety Appliance Act would apply; hence if that act, as held by Mr. Justice Pitney, supra, is in pari materia with the Federal Employers’ *490Liability Act and if the two are to be construed together, that line of cases is directly in point. It was on that'theory such cases were used by Mr. Justice Pit-net to support the judgment in Forth Carolina Ry. Co. v. Zachary, Admr.
That when the Congress of the United States, under its constitutional power of regulating interstate commerce, has occupied the field by its statute, the State damage act must give way, pro tanto, where the two overlap in remedy, is not to be questioned for a moment. However much the State bench and bar may revere the old landmarks of our statute on damages, they must be willing to see that statute yield when the paramount authority of the Federal Government once takes over any phase of the regulation of interstate commerce and the liability of carriers in that line of business, as it has done in this instance.
Wherefore, I vote to concur.