(dissenting in part). I am unable to concur in the conclusions of the court upon the second, third, and fourth counts, which charge defendant with moving on its line of railroad three trains in which the tfain brakes on the prescribed percentage of cars were not connected. Each string of cars, one of 32, another of 36, and the third of 39 was hauled as a unit, without switching in transit, from one of .defendant’s yards to another. The yards at their nearest points were about two miles apart. The movement over this intervening distance was by a main line track used constantly in the freight and passenger traffic of three great railroad systems into and out of Kansas City, Mo.—the Burlington, the Rock Island, and the Wabash. Three thousand feqt of this distance was by the defendant’s single-track Hannibal bridge across the Missouri river, one of the important and most congested arteries of commerce in that part of the country. About 4,000 feet including the bridge was used by the passenger trains of the three railroad systems in gaining access to the Union Station. This stretch of main line track intersected a track 'of another railroad company and from 12 to 15 tracks of a terminal company.
Defendant’s contentions which the court sustains are: First, that the train-brake provisions of the Appliance Acts (27 Stat. 531; 29 Stat. 85; 32 Stat. 943) do not apply to switching operationssecond, that the movements of the cars in question were of that character. I will not stop to consider the first of these, except to say that in some Switching operations compliance with the requirement in question may be impracticable, and for that reason may not have been enforced as to them. But it is another tiling to declare generally that switching operations are without the statute, and then to attribute to that phrase such a broad meaning as to impair the very intent of Congress. The test of the application of the statute is in the essential nature of the conditions presented, not in the words by which they may be conveniently described. Otherwise the fate of the legislation would depend upon extraneous phraseology. It is noteworthy that the phrase “switching operations” does not appear in the statute, though that would have been the easy, obvious way had Congress broadly intended to exempt them. Here that result is reached by construction. The last act (32 Stat. 943) declares that the provisions and requirements “relating to train brakes * * * shall be held to apply to all trains * * * used on any railroad engaged in interstate commerce.” No broader declaration can be conceived. No exception like that urged upon us appears, and a court should be most careful in inserting one by construction. If to observe the intent of an act of Congress “any car” includes a locomotive engine (Johnson v. Southern Pacific, 196 U. S. 1, 25 Sup. Ct. 158, 49 L. Ed. 363), it would seem that the expression “all trains used on any railroad engaged in interstate commerce” should be held to include the three trains of defendant. In view of the decisions of the courts *21it is too late to say the three strings of cars with their engines were not “trains” within the meaning of the law.
An argument in aid of the exemption of switching operations is deduced from the expression “on its line” in section 1 of the act of March 2, 1893. Whatever force there may have been in this disappeared when Congress provided by the act of March 2, 1903, that the requirements should be held to apply to all trains used on any railroad engaged in interstate commerce. If we keep in view the letter and the spirit of the law and the evils intended to be lessened or prevented, it seems to me the defense of switching operations is manifestly untenable. Among the dangers which Congress had in mind were those which arose from the movement of trains not quickly controllable by coupled power brake appliances. It also appears from the proceedings in Congress that the dangers to brakemen from the slippery tops of cars and overhead obstructions were especially regarded. The train-brake provisions would take the brakemen from the places of peril while the trains were moving.
_ _ The purpose of defendant in making up these trains at the point of origin and its intended disposition at destination are purely adventitious, and so of the absence of markers and the movement by switch engines and crews." In tire passage of the trains all the dangers were present as patently as if they had been solid through trains from distant cities, as to which no one would doubt the applicability of the statute. Two of the three trains in question, each composed of an engine and more than 30 cars, moved from the Murray yards north of, the Missouri river to the Twelfth Street yards in Kansas City. If they had been preceded by a freight train from Chicago, separated by a passenger train from Omaha and followed by'a freight train from St. Louis, all five moving on the same stretch of main line track used in interstate commerce, only the last three, according to defendant, would have been within the train-brake provisions of the statute. Yet in each case every condition suggested by the letter and spirit of the legislation would be present: Each a train; each on a railroad engaged in interstate commerce; each moving with the same character of motive power; each at every stage of its progress menaced by similar dangers, and each equally a source of danger to others; the same intersections; the same overhead obstructions. Though three would be subject to the statute, it is said two would not, and the anomaly is sought to be justified by the contention that the movements of the two from yard to yard were “switching operations,” employing a phrase not found in the statute. There may be reasons in practice for the exemption of some such operations, but if admitted it should be with a much narrower scope than that claimed in this case. It should not be held to cover the transfer of long strings of cars over extended distances of main line track in the midst of through traffic. The exemption has been allowed here for reasons of inconvenience, not impracticability.