# Popular Science Monthly/Volume 41/June 1892/Wanted: A Railway Court of Last Resort

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* WANTED—A RAILWAY COURT OF LAST RESORT.
By APPLETON MORGAN.
WHILE the debates in Congress which resulted in the passage of the act to regulate interstate commerce were in progress, and during the first few months of the enforcement and interpretation of that act, I contributed to The Popular Science Monthly a series of criticisms of that act and of its policy.
To me, and to thousands of others, the policy of the act seemed un-American and paternal; or, if not un-American and paternal, then a policy which could and should be applied to other than the transportation industry—to places of public amusement, or to professional pursuits, to the business of the physician or the ​lawyer, or to hundreds of others. I pointed out that, if rigidly enforced, the act would amount to a confiscation of private property; since, if the investment of private capital in any business can be compelled to make charges for services in accordance with a tariff not framed with any reference to the capital invested or the value of the service rendered; or if the value of services can be estimated by the person served, and paid for only in accordance with his estimate, and without hearing from the party performing the service, the value of private property invested in plants used to render services to others than its owner would speedily disappear. In other words, the principle upon which the Interstate Commerce Act appeared to me to proceed was one which, if pronounced proper, would justify—and if rigidly enforced might even result in—the operation of all railways by the Government. But, however that policy might work in European countries, it seemed to me impossible of other than despotic and ruinous application in the United States with its five hundred railways, their vast united capital and their enormous aggregate of fixed indebtedness held in the shape of negotiable securities, and very largely held in England and upon the European continent. At least it seemed to me impossible without a peremptory, and so a paternal, fixing of values at which the Government should acquire the railway road-beds and plants, not to mention the creation of a tremendous civil list, which in itself would probably precipitate the very evils and tyrannies which the socialists and alarmists foresaw from the private ownership of railways, and the consequent accumulation of occasional private fortunes beyond the actual appreciation of services of the employments of capital.
The Interstate Commerce Act has now been in operation about four years. Its enforcement, so far from being rigid, has been marked by extreme leniency and enlightened judgment upon the part of the commission appointed to administer it—a judgment in which the echoes of public clamor or the verdicts of the marketplace have found no recognition; and the result has been, it seems to me, an entirely unforeseen situation one still more favorable to the railway companies and charitable to their procedure, if possible, than was the situation—prior to the enactment of any Interstate Commerce law whatever. Before proceeding to demonstrate a few of the anomalies of this, from my own standpoint, entirely satisfactory condition of affairs, it is only fair to the railway companies to state that they, immediately upon the appointment of the commission, began to enforce the most implicit obedience to the letter of the Interstate Commerce law, and that—whatever diplomacy there may have been on their part—it has never resulted in the administration in a single case of the penal processes with which the commission was empowered by ​the act to, in its judgment, follow up a recalcitrant railway company.
The inventors of the act of Interstate Commerce designed it to cheapen freights to the people by compelling railways to sharply compete, and to relieve the country from what were claimed to be discriminations, and to adjust local inequalities. They put the act upon the statute-book. But—by a strange deliverance of affairs—none of these objects were accomplished. No sooner did the act become law than it operated to relieve the railways from competition, increased freights, and shifted, without lifting or adjusting, what were called "discriminations." But, while powerless to advance the objects for which its projectors had fondly drafted and urged it, the act did accomplish one great good and one not local, as were the grievances, if any, it was framed to remedy, but a national and general good, which it is needless to say its framers and proponents never dreamed of subserving. That national good was nothing less than the appreciating of American railway securities in the European exchanges.
I am not exactly certain that the railway companies themselves foresaw this result when they yielded so prompt and unanimous an obedience to the Interstate Commerce Act, but it is indisputable that this acquiescence and obedience brought about this happy desideratum. It has not been unsuspected that, just as the past few years have seen the "Trust" devised by capital to meet and offset and checkmate the waste and unreasonableness of the labor-unions, so the railway companies, upon finding the popular opposition to them crystallizing into a Federal statute, by a single coup turned the statute itself into an aegis, and made it (as the old maxim says of the device of a mortgage) a shield as well as a sword. But, however this may have been, the immediate result was as I have said. The European investor, who had often looked askance at American railway securities, because he had somehow absorbed a notion that our United States railway companies were more or less unregulated by statute, and so more or less lawless, upon seeing them brought under Federal regulation (always with his old-time ideas of the paternal and constabulary benefits of government control), did not hesitate to bestow upon our railway securities the confidence with which he already regarded our Government securities. As I have said, it is an open question whether the railroad companies themselves foresaw this result; but it remains another and a very curious cumulative instance of how (as I have before noted) the Interstate Commerce Act worked upon the railway companies, much as the prophet Baalam is related to have worked upon the children of Israel. He was employed to curse them, but he blessed them superlatively.
But if the policy of Federal regulation of railroads is to be ​permanent, it should be as perfect in operation and as nicely adjusted as possible; and to this end there are two details still desirable. In order that the subjects of the regulation, as well as its administrators, should be able to know exactly what is required of them: exactly what to expect, and be forever—the one as well as the other—confident that no rules and regulations, penalties or punishments, should be at any time "sprung" upon them, or be enforced by way of surprise; or without, as the phrase goes, that due process of law, "of which" notice "has been held to be the most essential part": it is necessary and vital that there should somewhere be and remain a court of last resort.
Now, the tribunal or office which we know as the "Interstate Commerce Commission"—with headquarters in Washington—is not a court of last resort, or, indeed, a court of any sort. It is nothing, indeed, but a referee or master-in-chancery, whose only authority is to find and report a fact or a state of facts. (This has been repeatedly held, not only by the lower courts, but by the Federal Supreme Court itself.) Moreover, this Interstate Commerce Commission has no power to award a judgment; or, if it does award a judgment, to enforce that judgment by process or execution. However penal in character its decrees may be, the summary process must issue elsewhere.
Assuming that the American principle that all government derives its charter from the consent of the governed has been satisfied by the obedience rendered to the provisions of the Interstate Commerce law by the railway companies, it follows that the railway companies are entitled not only to know exactly what is expected of them, but to know to what tribunals they are amenable in case of any future disobedience or inadvertence or misunderstanding as to the provisions or edicts by which they are governed. And, further, the governed are entitled to a single statute or set of statutes, and to a single tribunal or succession of tribunals, and to be relieved from the confusion of conflicting collateral statutes and collateral tribunals. If they, the governed railway companies, are not entitled to know just exactly what they are to do and what to leave undone, then they are entitled to the public sympathy rather than to the public surveillance; and, no matter what they do or leave undone, can plead such a conflict of collateral laws and of decisions and of decrees of courts as will leave it impossible for them to be guided by anything—in any given case—but their own sovereign discretion.
Is there at present such a state of affairs as renders the railways entitled to act upon their own sovereign discretion, equitably if not legally; and to plead mistake in case of an arraignment for any consequences or any result of such action? Remembering that the law of the land, the common law, was not written for ​railway companies, who are only persons (or at the most common carriers in the eye of the common law), certainly they are entitled as persons that statutes passed to regulate them as railway companies should be definite, fixed, single, and certain. It is as abhorrent to justice that a corporation, or a railway corporation, as it is that a natural person, should be compelled by law to act at his peril. But the situation is exactly this: Anomalous and intolerable and abhorrent to justice as it may appear, our United States railway companies are compelled by law to act at their peril. For every single one of our forty-four sovereign States, and about all of the Territories, have copious and dictatory statutes concerning railways, and these statutes are in every case to be added to—not held appealable to or reconcilable with, but collaterally additional to—the Act of Interstate Commerce! And each governed and regulated railway company must either select some course of procedure which shall contain some three or four, some larger or smaller, groups of these State and Federal statutes, or else disobey one or more groups of them at its peril; or in almost every possible case presented to it for its discretion institute suit for a construction of all these statutes in each particular case, and carry it to the court of highest resort, the Supreme Court of the United States! Indeed it is only, as I have said, because the Interstate Commerce Commission has thus far been composed of gentlemen and jurists who have used the utmost personal judgment, conservatism, and leniency in administering the statute, that every railway company in the land has not been driven to one or the other of these procedures (and this not once but hundreds or thousands of times* almost daily, in fact),viz., either to flatly disobey, or else to maintain a suit up to the Supreme Court of the United States. But from the calmness and conservatism of a tribunal as once, at present or at any one time constituted, unhappily no warrant for the future or for any other time can be drawn. A change of personnel, always possible, might ingraft or enforce a new policy at a moment's notice, with what results nobody could predicate or prophesy. But one can always state that, in whatever form the result came, it would amount to an interruption of public business and of the course of commerce.
Now, there are two remedies for this state of things: one of which has been urged before, and by a no means inconsiderable or thoughtless or turbulent or revolutionary element of the population; and the other of which has been certainly suggested, though not, as I am aware, ever very seriously discussed. The first remedy is the purchase and operation of the railways by the Government; and the second is either the abolition of State railway statutes and of State Boards of Railway Commissioners, or else the making of the Federal Board of Interstate Commerce an appellate ​court from the court of the State Railway Commissioners, thus either subordinating or conforming all State railway statutes to the Federal statute of Interstate Commerce, amending the railway statutes to the statute of Interstate Commerce in as far and as often as the same may he amended or altered or enlarged by the Federal Congress.
The first of these remedies?—the Government purchase and operation of railways—I have so fully and at length discussed in these pages that it would seem superfluous to touch the matter further, unless the reasons then given to show that the project was impracticable and impossible (or, if practicable and possible, then unconstitutional) can be disposed of. I may briefly state that the principal of those reasons were: first, that the immense number of competing railways would make the operation of more than one of them between terminals an act of bankruptcy on the part of the Government (which would attempt to compete with itself), while to discontinue a competing road would be to deprive local stations of business facilities to which they would be entitled as well as the terminals; and, secondly, as above stated, that to operate the five hundred railways in the United States, or any considerable number of them, would necessitate a civil service so enormous and costly that, even if administered with the most rigid economy, it would absolutely and superlatively realize for this people the worst effects which the most hectic of the popular railway reformers have prophesied from the continuance of the present system. In addition to these practical objections the constitutional objection was, that the purchase of our railways would be impossible at present, whatever it might have once been, since no price at which the railway plants could be purchased could be arrived at. To purchase them at more than their value would be a robbery of the non-railway public; to purchase them at less than their value would be a robbery of the owners of the railways; while to purchase them at their exact value, admitting that it could be reckoned, would be in itself a confiscation (and so a robbery), as forcing innocent holders to relinquish such legitimate investments for their capital as they had lawfully seen fit to select.
As to the second remedy, there is, I think, something indeed, a great deal to be said in its favor, not only from the side of the railway companies, but from the side of the people of this country (from the shippers, as we may perhaps call the non-railroad operating population; of course, an enormous majority of the whole). And as to this I respectfully offer the following considerations, not in behalf of the railways, but of the customers of the railways.
Congress has more than once passed a national bankruptcy act, and, I believe, always with beneficial results. Moreover, I ​think no sooner has a national bankruptcy act expired or been repealed, and the various State insolvency laws more or less taken its place, than the public credit has felt the change unfavorably, and the business interests of the community have clamored for the re-enactment or rehabilitation of the national statute. Now, if the Interstate Commerce Act stood alone, both the railway companies and the people would know exactly what was expected of each, independently and reciprocally. A codification of the procedure thereunder would place the whole simply at everybody's hand. The railway company would have no excuse for disobedience, and the aggrieved shipper would have not only his grievance but his remedy at his tongue's end. And not only would the shipper have a right to prosecute the company for disobedience or inadvertence or neglect or mistake, but the railway company might proceed against a recalcitrant shipper to compel him to obey the law: and this to the benefit not only of the railway company, but of his co-shipper or neighbor, to the quieting of all possible railway "discrimination."
If it is necessary in the present paper to demonstrate that as the Federal law stands, and as all these State and Territorial laws stand, neither of the great interests involved, neither the people nor the railways, can know where they stand, either independently or reciprocally, the demonstration is easily forthcoming.
To outline it as briefly as possible: At the appearance upon our statute-books of the act of Interstate Commerce, the art of railroading, in spite of all and singular the State statutes (some of them absolutely ridiculous, more of them unconstitutional, arbitrary, and penal, and almost prohibitive, and almost all of them inequitable to a large degree, as my prior papers have perhaps demonstrated), was rapidly approaching the state of an exact science. But, by the appearance of that act, this art or science of railroading was arrested and thrown back upon itself in a sort of "chaos by act of Congress." The enormous fixed or mortgage debts of the American railways—a large, perhaps the largest part of which was held in Europe (where, to a degree almost impossible to adequately describe to one not familiar with these matters, it involved the national credit itself)—had rendered the pooling system imperative. This pooling system had not been "sprung" by the railways upon the people, nor was it for the benefit of higher rates, or in the nature of a combination against trade, or of a "Trust." On the contrary, it had been evolved slowly—by long and costly experiments, and by extended deliberation on the part of the railway companies, and had expedited an absolute cheapening of freights, and a consequent impetus to manufactures, the reclamation of waste lands to agricultural purposes, and so had resulted in an unexampled—and ​promised a still more enlarged—prosperity. Not only was it found impossible for the moment to equate rates, or to know what to charge the public for railway service, but among the railway companies themselves it was impossible to contract or hold each other to their agreements, covenants, or mutual obligations. Moreover, every or any insignificant local railway in the land (of five or ten miles long, or even of less) might and did solicit and accept freight to any point in the United States, Canada, or Mexico at arbitrary rates—deliver the freight at the end of its haul to other, and this to yet other, lines—so finally forwarding that freight to its destination at a rate absolutely prohibitive to a trunk line extending directly from the shipping to the destinative point of that very freight; and this from motives, not of competition, but of, say, jealousy, or looking to the depreciation of securities, and so of ultimate absorption, or control, or "wrecking" of the trunk line. Into this confusion stepped the State railway boards, each lending a hand, until for a time it seemed as if the business of railroading was about the most undesirable and unprofitable of employments not only, but a sort of punishment in itself. In short, it was as a last gasp, or a forlorn hope, that the railway companies, to save themselves, invented "pools," and begged acquiescence in them of the short local lines—in the hope of being able to earn their operating expenses, and possibly a prophetic fraction of their fixed charges. Imagine their consternation at an act of Congress which appeared and prohibited pooling!
What the railway companies or the national credit would have done, had it not been for the first important decision of the Interstate Commerce Commission (known as the Louisville and Nashville decision), it is impossible to conjecture. That decision, coming at the right time, declared that, while the text of the act forbade "pools" or "discriminations," or "the charging more for a short than a long haul," the spirit of the act was to do the railway companies as well as the shippers justice under the circumstances of each case. In short, that circumstances must control.
Under, I say, that benign decision, the railways have been able to exist and to prosper and pay their fixed charges. The "Gentlemen's Agreement"—nothing more or less than a series of "pools," called "associations"—only created by a sort of national instead of local consent (that is, by the principal railways acting as a unit instead of by groups of railways here and there grouped by local or competitive considerations), has enabled the interest on American railway securities to be met abroad, and so the national credit maintained in the sensitive European markets, and all for the time has been well. The expense, to be sure, has been borne by the people—the shippers. There has been a ​form advance in freights. But this advance the people have felt was a small enough price to pay for the principle of Federal control of railways; and, as I say, the railway companies have acquiesced.
But, while the situation is just at present satisfactory, and while the railway companies, up to the present time, have been able to "pull through," it is impossible to deny that there is cause for considerable uneasiness, and indeed for considerable positive alarm, in the railway situation. It can not be too often repeated that the enormous mortgage debt of our five hundred American railway companies, averaging some fifteen thousand dollars per mile for some 200,000 miles of railway, being largely held abroad and payable in gold, most intricately and indissolubly controls our national credit. It must not be for a moment forgotten that the payment of the interest on this vast debt or loan is dependent upon the earnings of all this mileage, and that, if the shipper can not pay what the railway earns, this interest can not be paid. It is for these reasons that the subject of a conflicting Federal and State supervision of railways, and of their relations with the people, is of popular interest, and deserves discussion in The Popular Science Monthly, instead of being treated only in financial articles, which only reach the banker, the investor, and the capitalist. Nay, more, the direct interest of the people in the question of a collateral and possibly conflicting State and Federal jurisdiction over railway companies is even more immediate than as above outlined. Indeed, this direct popular interest can be traced into so many channels, each one of them ramifying into so many more, that one quite despairs of exhausting them within the limits of a single paper. Some of the more important of these channels may be, however, briefly indicated:
First, it is directly to the public interest: to the interest of each individual, capitalist, investor, or professional or working man, bread-winner or consumer: that values should fluctuate as little as possible, which is only another way of saying that capital should always be able to find remunerative investment. But (as shown before in these pages) if the capital now locked up in railways is not a remunerative investment, the next step is the railway bankruptcy, the stock-"waterer," and the railway-wrecker. Admitting, then, that the enormous fortunes, the accumulations of vast resources in the hands of one or two individuals which was the constant argument of our Mr. Hudson and his ilk, and always is and always will be the argument of the communist and the anarchist—comes from stock-watering and railway-wrecking, it is the direct popular interest that our railway companies should earn their fixed charges. And to earn their fixed charges they must first, as we have said, earn their operating expenses: and to ​earn these, or either of these, they must first of all be left in peace, and not at their peril to lawfully do all lawful business which comes to them.
A second ramification of this question of conflicting Federal and State laws may seem at first far-fetched, but on examination it will, I think, be found to be very intricately connected with the public interest. In the President's last message to Congress his Excellency says:
"I have twice before urgently called the attention of Congress to the necessity of legislation for the protection of the lives of railroad employés, but nothing has yet been done. During the year ending June 30, 1890, 369 brakemen were killed and 7,841 maimed while engaged in coupling cars. The total number of railroad employés killed during the year was 2,451, and the number injured, 22,390. This is a cruel and largely a needless sacrifice. The Government is spending nearly one million dollars annually to save the lives of shipwrecked seamen; every steam-vessel is rigidly inspected and required to adopt the most approved safety appliances. All this is good; but how shall we excuse the lack of interest and effort in behalf of this army of brave young men, who, in our land commerce, are being sacrificed every year by the continued use of antiquated and dangerous appliances? A law requiring of every railroad engaged in interstate commerce the equipment each year of a given per cent of its freight-cars with automatic couplers and air-brakes would compel an agreement between the roads as to the kind of brakes and couplers to be used, and would very soon and very greatly reduce the present fearful death-rate among railroad employés."
It seems to me that this passage brings us exactly to the question before us, for, while the President's recommendation is on the side of humanity, it is possible to see how considerable inequality and injustice might result from a carrying out of the suggestion. Even humanitarian laws are not always laws for the greatest good of the greatest number. For example, it might be asked, Why interstate railways only? (of course, in a message to Congress only interstate railways could be mentioned, as under its jurisdiction, though this is only true in a measure and not, as I take it, necessarily so)—and, if interstate railways only, how if State laws should also provide for the use of an automatic coupler, and supposing a State law should decree the use of one kind and the Federal law decree the use of another? Before the railway company could ask for a reconciliation of the two decrees, or even in good faith endeavor to provide an equivalent, how many litigants might arise to sue for a penalty under one law or the other, or how many railway accidents be added to the fatality list? And let it not be forgotten that, strange as it may appear, the ​enforcement of the President's suggestion would actually work a hardship to the employés themselves by throwing thousands of them out of employment. (Of course, the hoary old question as to whether improvements in machinery in the long run do actually throw laborers out of employment might be discussed just here, but I fancy that while we were discussing it a great many brakemen might starve.)
If such a matter as this could be left by all the States, by unanimous consent, to the Federal power, and if, instead of so sweeping a law as the President suggests, a statute might be provided requiring the draw-heads of all freight-cars manufactured or admitted into the United States to be of a uniform height and to be within projecting frame corners from the rail surface, everybody can see that not only humanity but perfect justice both to the railway company and to the employé would be subserved.
We are not at present discussing the question of automatic couplers; but this illustration shows: first, the necessity of a single and uniform railway law-maker, and that the law-maker should be guided only by expert knowledge and act only after adequate discussion and deliberation as to the best methods for not only preserving the lives of employés, but of conserving to them the opportunity of earning a living, and to the railway company the opportunity to earn the money to pay them their wages. It is certainly not necessary to go further into the subject already so fully discussed in these pages; but when the reader of former papers remembers the absurd and arbitrary laws passed by certain State Legislatures, such as prescribing the size and cost of station-houses, the number and distance even, without the slightest regard to the business or the earnings of the company, he will see at once how prohibitive of profitable railway enterprises (and so how perilous to the public, and even to the national prosperity) it may be, to leave all statutory control and regulation of railways in its present indifferent, undecided, and altogether chaotic state. It seems to me that it is the interest of the nation, of the public at large, of the railway companies, of their employés—in short, of all concerned—that such an adjustment may be arrived at as will secure, if at all, a Federal control of railways in the spirit of ​the present Act of Interstate Commerce, by making that act superior to and controlling all State laws: at any rate, some single tribunal whose decisions may make a body of railway law for the protection as well as for the discipline of railway companies. If a possible dissenting voice should urge that there was a difference between a "State" and an "interstate" railway, I may add that it has been held repeatedly by the Interstate Commerce Commission, and never denied by the courts, that a railroad which is wholly within a single State, if engaged in the transportation of passengers and freight going to or coming from another State, is engaged in interstate commerce and is therefore subject to congressional control; and the Commission have repeatedly asserted, and are in this upheld by the highest authority, that Congress may with respect to all the subjects of foreign and interstate commerce, the power engaged in, and the instruments by which it is carried on. It gives the power to prescribe the rules by which it shall be governed and the conditions upon which it shall be conducted. It embraces within its control all the instrumentalities by which that commerce may be carried on, and the means by which it may be aided and encouraged; and, if I am not in error, this power has been extended, by the present Interstate Commerce Commission, to the regulations and the workings and maintenance of a bridge over which freight having an interstate destination is transported! With such an interpretation of the constitutional clause, it would not seem to be going too far if the Commission should assume a veto power over the State Commissioners; and I am sure it would not be difficult to use it with the highest possible regard for the interests of all concerned.
One of the jurisdictions proposed for such a tribunal of railway last resort as I have suggested is that of restricting the construction of proposed railway lines by decreeing whether or not a proposed railway line is necessary or desirable between two given points. I think it is entirely safe to say, however, that no such jurisdiction will ever be assumed, or, if assumed, will ever be exercised by any tribunal or court within the United States. This people would resent (and no class of it sooner than that of men of the Hudson caliber, who see in railways the approaching cataclysm of the nation), as intolerable, the idea of any arbitrator however lofty deciding upon an individual's right to invest his own capital entirely as seemed to him good; but principally because such a power, if granted, would not be confined to a negative action alone. The right to forbid the building of a railway between two certain points would lead up to, and in time arrogate, the right ​to decree the building of another railway between two other points; and as the one would be impossible, so the other would be absurd.
For all that is said about superfluous and over-railway construction, I confess that I would like to hear mentioned the one of our five hundred United States railway lines which is superfluous, or which the community which is served by it would consent to have torn up or to otherwise dispense with. I have myself cajoled, argued, and fought for rights of way, and finally brought condemnation and sundry other legal proceedings in order to construct a railway; but, once constructed, I think it would be dangerous to limb or life to suggest a discontinuance of that railway to the very people who once resisted, to their last extremity, its location.
The people of the United States are indebted to their railways in a sense which obtains in no other country on this planet. To say that the railways have turned forests into farms and made the desert blossom as the rose does not express this obligation. It is a greater one than that. To the United States as to no other nation the railways have brought wealth by a present realization of prospective revenues so enormously as to quite amount to an actual creation of values. In other countries railways have been built when populations demanded them, or could not exist longer without them—when great cities were to be brought together and great industries to be served. In the United States the railways have preceded and created the demand, the interests, the cities themselves.
The percentage in error of judgment is at least no greater in the promoting of railway enterprises than in any other branch of human procedure. Nor is it impossible to argue that even a forced railway construction—where actually no demand can be premised, no interests subserved, where no capital seeks legitimate investment, and no traffic exists, and for only ulterior purposes (such as "selling out")—is entirely a disadvantage to a community. Even the debentures of such a railway are not a public burden. For, while a promise to pay value is not perhaps a creation of value at the start, if interest be paid upon that promise and it is finally funded and ultimately paid in cash, it becomes a contribution to the public wealth (however meanwhile that promise or the guarantee of it may work criticism or prophecy of national ruin, or the elocution of the agitator or the communist about bloated or unhealthy private fortunes and the like). Large views and considerations of "the long run," do not, I think, warrant any paternal surveillance over private capital or the laws of supply and demand. What is wanted is either a surcease of railway commissions, Federal, State, and Territorial, in the United States, ​or else that those tribunals which do exist be created into an intelligible succession, with one of last resort at the top, whose decrees shall be final to protect, as well as to discipline, both the railway company and its customers.
* ↑ I think such a law as this would be a better one than one directing the use of an automatic coupler, for it would not throw any brakemen out of their jobs. As to the loss of life spoken of by the President, the larger number of instances will, I think, be found to have occurred at night, when brakemen, not knowing of course the height of the drawheads of the cars approaching them, and often while using every precaution, might be caught and crushed by a different build of car with flush corners, or higher or lower timbered corners. Such a law, prescribing uniformity in this detail, and mulcting the company owning the car or cars causing the death or mutilation with adequate damages, would be, I think, a salutary and an exemplary one.
* ↑ 93 U. S., 103-114. Id., 196.