(dissenting). The car which caused the injury had a defective coupler. It would not couple automatically. As a result, the plaintiff below, under orders, went between it and the car it was to be coupled to, and tried to force a coupling by using his foot. In consequence, his foot was caught in the impact of the cars and seriously injured. In the opinion of the majority, the question is discussed whether the car was being used in interstate traffic, and it was held by one of the judges, a view in which I concur, that the testimony showed the car was being so used. That question being so determined, it seems to me that, .under the facts as shown by the record, the court was right in charging the jury as it did.
After the coupler became defective and could not be coupled without going between the ends of the cars, it became unlawful for the railroad company to haul it, or permit it to be hauled, or used, on its line. It then became the duty of the railroad company to withdraw the car from use, and have it repaired to conform with the law before using- it further. It did not do this, but continued to use the car in its defective condition. It could only do this under the penalty of the law. The car was defective, liable at any time to cause an accident, and it could not be kept in use at the constant risk of a serious accident, either upon the excuse that it would be inconvenient to withdraw it from the service, or that the company had sent for the required appliance, and would repair-the car when it should be received.
Certainly no ground is suggested why the employé, to protect whose life and limb this act was passed, should be deprived of its benefit in a case like the present, where he has already suffered the very injury which a compliance with it would have prevented.
This is a case peculiarly within the provisions of the act. A car loaded and being used in moving interstate traffic was found with a defective coupler. The car was marked “in bad order,” and a repair piece sent for. After thus being notified of its condition, the car should have been withdrawn; but it was not, and the company kept on moving it about in connection with other cars, and finally ordered the injured employé to couple it.to another car. This he tried to do, with the natural result, and he has been crippled for life. The case amply justifies.the verdict, and the judgment should be affirmed.