tion under the federal statute. It is urged, | pend upon negligence, and to make the carhowever, that the court should have allowed rier absolutely liable for any injury resultan amendment. The statute of limitation ing from the use of a car the couplers of had barred an action based upon the act of which did not in fact couple automatically Congress before leave to amend was asked. by impact, even although their failure to do It was then too late for such an amendment, so was not occasioned by any negligence on under repeated decisions of this court, of its part, and could not have been prevented which the earliest is A., T. & S. F. R. Co. by any practicable degree of diligence. v. Schroeder, 56 Kan. 731, 44 Pac. 1093, When this case was here before, this court where it was said: "A plaintiff cannot de- adopted the first stated of these two views prive a defendant of the benefit of the stat- upon grounds set out in the opinion. Since ute of limitations by ingrafting upon a case then, however, an expression of the federal commenced in time another cause of action Supreme Court seems to have committed barred by the statute. ** * ** The stat- that tribunal to the other. In St. Louis & ute of limitations, as applied to such new Iron Mountain Ry. v. Taylor, 210 U. S. 281, cause of action, treats the action as com- 294, 295, 296, 28 Sup. Ct. 616, 620, 621, 52 menced when the amendment was incorpo- L. Ed. 1061, a construction was placed upon. rated into the pleadings, and not as begun that part of the safety appliance law which when the action itself was commenced." provides for the fixing of a standard height (Syllabus.) In 1905 a stipulation was signed of drawbars for freight cars, and forbids the and filed in the case stating facts showing use in interstate traffic of any cars "which that the car at the time of the injury was do not comply with the standard." being used in interstate commerce, and this opinion it was said: "The evidence showed is relied upon as supplying the omission of that the drawbars which, as originally conthe petition. The stipulation expressly re- structed, are of standard height, are lowered cited that it was made to avoid the necessi- by the natural effect of proper use; that, ty of taking depositions, adding that it might in addition to the correction of this tendency be read in lieu thereof, but that its state-by general repair, devices called shims, ments should be subject to objections as to competency and relevancy. An agreement so made could not enlarge the issues made so made could not enlarge the issues made by the pleadings. Its purpose, as clearly indicated by its recitals, was merely to obdicated by its recitals, was merely to obviate the inconvenience and expense of taking depositions. It had no function except as a substitute for the testimony of witnesses, and, even if made before the statute

of limitation had run, could not have op

In the

which are metallic wedges of different thick-
ness, are employed to raise the lowered
drawbar to the legal standard; and that in
drawbar to the legal standard; and that in
the caboose of this train the railroad furnish-
ed a sufficient supply of these shims, which
it was the duty of the conductor or brake-
man to use as occasion demanded.
state of the evidence the defendant was re-
fused instructions, in substance, that if the de-
fendant furnished cars which were construct-

On this

erated as a waiver of any defect in the pe-ed with drawbars of a standard height, and

tition.

The considerations already stated are de- furnished shims to competent inspectors and terminative of the case and require an af- trainmen and used reasonable care to keep firmance of the judgment, for the evidence the drawbars at a reasonable [the standard?] did not warrant a recovery independent of height, it had complied with its statutory the federal statute. Nevertheless, the cir- duty, and, if the lowering of the drawbar cumstances give occasion to consider the resulted from the failure to use the shims, other question presented-the meaning of that was the regligence of a fellow servant, that statute. Section 2 makes it unlawful for which the defendant was not responsible. for any common carrier engaged in inter- In deciding the question thus raised upon state commerce by railroad "to haul or per- which the courts have differed (St. Louis & mit to be hauled or used on its line any car S. F. Ry. v. Delk, 158 Fed. 931, 86 C. C. A. used in moving interstate traffic not equip- 95), we need not enter into the wilderness ped with couplers coupling automatically by of cases upon the common-law duty of the impact, and which can be uncoupled with- employer to use reasonable care to furnish out the necessity of men going between the his employé reasonably safe tools, machinends of the cars." Two views have been ery, and appliances, or consider when and taken of this provision by courts that have how far that duty may be performed by had occasion to construe it. One view is delegating it to suitable persons for whose that Congress intended to require railroad default the employer is not responsible. In companies to equip their cars with automatic the case before us, the liability of the decouplers, but that, when this had been done, fendant does not grow out of the commona company was to be liable for an injury law duty of master to servant. The Conresulting from a failure of the device to gress, not satisfied with the common-law work only in case such failure was due to duty and its resulting liability, has prescribsome negligence on its part according to the ed and defined the duty by statute. We have ordinary rules. The other view is that the nothing to do but to ascertain and declare intention was to do away altogether with the meaning of a few simple words in which

'no cars, either loaded or unloaded, shall be used in interstate traffic which do not comply with the standard.' There is no escape from the meaning of these words. Explanation cannot clarify them, and ought not to be employed to confuse them or lessen their significance. The obvious purpose of the Legislature was to supplant the qualified duty of the common law with an absolute duty deemed by it more just. If the railroad does, in point of fact, use cars which do not comply with the standard, it violates the plain prohibitions of the law, and there arises from that violation the liability to make compensation to one who is injured by it. It is urged that this is a harsh construction. To this we reply that, if it be the true construction, its harshness is no concern of the courts. They have no responsibility for the justice or wisdom of legislation, and no duty except to enforce the law as it is written, unless it is clearly beyond the constitutional power of the lawmaking body. It is said that the liability under the statute, as thus construed, imposes so great a hardship upon the railroads that it ought not to be supposed that Congress intended it. Certainly the statute ought not to be given an absurd or utterly unreasonable interpretation leading to hardship and injustice, if any other interpretation is reasonably possible. But this argument is a dangerous one, and should never be heeded where the hardship would be occasional and exceptional. It would be better, it was once said by Lord Eldon, to look hardship in the face, rather than break down the rules of law. But, when applied to the case at bar, the argument of hardship is plausible only when the attention is directed to the material interest of the em- WHITNEY et al. v. SPRING RIVER POWployer to the exclusion of the interests of the employé and of the public. Where an injury happens through the absence of a safe drawbar, there must be hardship. Sucn an injury must be an irreparable misfortune to some one. If it must be borne entirely by him who suffers it, that is a hardship to him. If its burden is transferred, as far as

plers, and there is enough difference in the language of the two sections to afford ground for a reasonable distinction. But the whole act either has for its purpose merely the regulation of the character of appliances to be used-the forms of mechanical devices to be employed-or it has a broader scope and is designed as well to shift the burden of accidental, nonnegligent injuries occurring in connection with such appliances from the injured employé, where the common law placed it, to, the employer, in accordance with the modern theory that as a matter of legislative policy losses arising from injuries to workmen resulting from the use of complicated machinery should be counted as a part of the cost of production or operation. In declaring that "the obvious purpose of the Legislature was to supplant the qualified duty of the common law with an absolute duty deemed by it more just," the Supreme Court characterizes the whole act as one cast in the larger mold. Its interpretation is authoritative and final. It follows that the instructions originally given by the district court as to the effect of the federal statute were correct. Certainly statute were correct. But, as the statute of limitation had barred an action under the federal law before an attempt was made to amend the petition so as to show that the case fell within that act as it existed when

it is capable of transfer, to the employer, it is a hardship to him. It is quite conceivable that Congress, contemplating the inevitable hardship of such injuries, and hoping to diminish the economic loss to the community resulting from them, should deem it wise to impose their burdens upon those who could measurably control their causes, instead of upon those who are in the main helpless in that regard. Such a policy would be intelligible, and, to say the least, not so unreasonable as to require us to doubt that it was intended, and to seek some unnatural interpretation of common words."

It is true that that case involved only section 5 of the law, relating to the height of drawbars, while the present one involves only section 2, relating to automatic cou

the injury occurred, no recovery by the plaintiff is possible.

The judgment for the defendant is therefore affirmed. All the Justices concurring.

ER CO. et al.

(Supreme Court of Kansas. Nov. 6, 1909.) APPEAL AND ERROR (§ 338*)-PETITION IN ER

ROR-DISMISSAL.

On

An order made at chambers on May 27, 1909, discharging a temporary injunction, was excepted to, and the time for filing a petition in error to review it was fixed at 30 days. June 18, 1909, the petition in error was filed. A motion is made to dismiss the proceedings in this court because an appeal was not taken as provided in the Civil Code of 1909, nor a petition in error filed until after the repeal of the old Code. Held, that in view of the provisions of section 754 of the new Code, and rule 4 of this court (104 Pac. vii), the motion cannot be sustained.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1882; Dec. Dig. § 338.*] (Syllabus by the Court.)

Error from District Court, Cherokee County; C. A. McNeill, Judge.

Action by T. D. Whitney and others against the Spring River Power Company and others. and others. From an order discharging a temporary injunction, plaintiffs bring error. Motion to dismiss denied.

BENSON, J. A motion is presented to dis- ing provisions so as to include remedies as miss the proceedings in error.

is

1. §§ 291, 294, 298, and Code Civ. Proc. 1895, | and Judge McClernan thereafter refused to $$ 1150-1158, 1173, subd. 2 (Rev. Codes, $$ settle the bill. Counsel for Girard then 6783-6792, 6796), and Laws 1907, p. 89, complied with when the party seeking the set- applied to this court for a writ of mandate tlement of a bill of exceptions presents the pro- to compel Judge McClernan to settle the bill posed bill and amendments to the trial judge of exceptions, and in the affidavits filed in on five days' notice to the adverse party, or delivers the same to the clerk, or to the judge, support of the petition sets forth the foreand, when the proposed bill and amendments going facts and others not necessary to be are delivered to the judge, he must settle and noticed now. Upon the return of the alternasign the bill at that time, or at such future tive writ, a motion to quash was first intime as he may designate. an answer was filed, but the answer merely terposed, and, this being overruled pro forma, sets forth the proceedings somewhat more in detail, and does not raise any issue of fact. The matter was then submitted to this court for determination.

[Ed. Note.-For other cases, see Exceptions, Bill of, Dec. Dig. § 50.*]

Application for a writ of mandate by Louis Girard against John B. McClernan, Judge of the Second judicial district in and for Silver Bow county, to compel the settlement of a bill of exceptions. Writ issued.

J. L. Wines, for plaintiff. John J. McHatton and Coleman & Cohen, for defendant.

In the view we take, it is wholly immaterial that notices for the several hearings upon the settlement of the proposed bill were given by counsel for Girard, and the objections made by McHatton on August 7th to the notice given by Girard on July 31st were therefore not of any avail, and Judge 'McClernan must have acted upon the objection made by counsel for McHatton on July 30th. Recalling, then, that the proposed bill was served on July 8th, that the amendments were served on July 17th, that the proposed bill and amendments were delivered to the judge by Girard on July 24th, and that July 30th was the first day upon which settlement was sought, the full import of McHatton's objection to a settlement on that day becomes apparent. The objection is that the proposed bill and amendments were not within 10 days after the amendments were served presented by Girard to the judge for settlement upon five days' notice to McHatton. This objection was sustained, and evidently upon the authority of Burns v. Napton, 26 Mont 360, 68 Pac. 17.

HOLLOWAY, J. During the month of May, 1909, there was tried in the district court of Silver Bow county, and in that department over which the Honorable John B. McClernan presides, a certain action entitled, "John J. McHatton, Plaintiff, v. Société Anonyme des Mines de Lexington, a Corporation, Edouard Berthemet, Louis Girard, and Charles C. Rueger, Defendants," and such trial resulted in a verdict and judgment in favor of the plaintiff. Within due time the defendant Girard gave notice of his intention to move for a new trial, and that his motion would be made upon a bill of exceptions thereafter to be prepared. The trial court granted him until July 9th to prepare and serve his bill of exceptions. On July 8th a draft of such proposed bill was served upon the attorneys for McHatton, and on July 17th certain proposed amendments to the bill were presented to, and served upon, Burns v. Napton was an original procounsel for Girard. These amendments were ceeding in this court by Burns to compel not accepted. On July 24th counsel for Gir- Judge Napton to settle a bill of exceptions ard delivered the proposed bill and amend- in the case of Burns v. Kelly, in which latments to Judge McClernan, who ever since ter case Kelly had prevailed. On June 3d has had them. The proposed bill was noticed Burns had prepared and served a proposed for settlement for July 30th, at which time bill of exceptions, and on June 4th had decounsel for McHatton, being present, in- livered it to the clerk of the court. On terposed an objection to the settlement, and June 11th Kelly proposed and served amendthe hearing was continued until August 7th. ments, which were not accepted. On June On July 31st counsel for Girard gave writ- 25th Burns gave notice that the proposed ten notice of the hearing for August 7th, bill and amendments would be presented for and on August 7th counsel for McHatton filed settlement on July 1st. It did not appear written objections to the notice last above that Burns, the moving party, ever delivered mentioned. Judge McClernan being absent or presented the amendments to the court, on August 7th, no further proceedings were judge, or clerk, and, in disposing of the matthen taken. Some time subsequently Judge ter, this court said, "In the case at bar, the McClernan fixed September 4th as the time plaintiff neither presented the proposed bill for considering the settlement of the pro- and amendments to the judge (on notice or posed bill and hearing the objections to such without notice) nor delivered them to the settlement. On September 4th the hearing clerk within 10 days after June 11th, which was again continued until September 7th, was the day on which the amendments were on which last-named day a hearing was had, served"; and relief was denied to Burns. and on the 11th of September the objection The court further observed: "We remark, in interposed by counsel for McHatton to the passing, that if the delivery of the proposed settlement of the proposed bill was sustained, I statement on June 4th had been followed by *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

a delivery of the proposed amendments with- | settlement of a statement of the case, as disin 10 days succeeding the service of them, tinguished from a bill of exceptions. These with the avowed intention on the part of the same provisions remained in force and were plaintiff to leave both the statement and carried into the Compiled Statutes of 1887 amendments for the judge, the statute might as sections 291 and 298, respectively, of the have been satisfied in the respect mention- First Division. There was also added a ed. The delivery of the amendments to provision contained in section 294, and the clerk for the judge would doubtless be these provisions continued in force and are tantamount to a new delivery of the state- brought into the Code of Civil Procedure of ment." But the court fell into error in pro- 1895. Under the Revised Statutes of 1879, nouncing an obiter dictum, as follows: "If, there does not appear to have been any dihowever, the amendments are not agreed to, rect provision for the settlement of a bill the party seeking settlement must, unless of exceptions, but the practice prevailed of the time be enlarged or sufficient excuse for having such bill settled immediately. To a delay be shown, do one of two things within certain extent this apparent oversight was 10 days after the service of the proposed corrected in the Compiled Statutes of 1887 amendments: First, he must present the pro- by the addition of the provision found in secposed bill and amendments-not one, but tion 294 referred to above; but with this both to the judge upon 5 days' notice to the added provision the proposed bill could still adverse party; or, secondly, he must deliver be delivered to the judge. In the Code of the proposed bill and amendments-not one, Civil Procedure of 1895 the subject "excepbut both to the clerk of the court for the tions" is treated in sections 1150-1158, injudge. Such is the plain language and clusive, and in subdivision 2 of section 1173 meaning of section 1155, supra." Section (Rev. Codes, §§ 6783-6792, 6796). Section 1155, Code Civ. Proc. 1895, now section 6788, 1155 provides: "When a party desires to Rev. Codes, does not contain the language have exceptions taken at a trial settled in a attributed to it by the learned justice who bill of exceptions, he may * * * prepare wrote the opinion. The section does provide: a draft of a bill, and serve the same, or "The proposed bill and amendments must, a copy thereof, upon the adverse party. within ten days thereafter, be presented by * * * Within ten days after such service the party seeking the settlement of the bill, the adverse party may propose amendments to the judge who tried or heard the case, up- thereto and serve the same, or a copy thereon five days' notice to the adverse party, or of, upon the other party. The proposed bill be delivered to the clerk of the court, or and amendments must, within days judge." The opinion in Burns v. Napton thereafter, be presented by the party seekwould lead one to suppose that the language ing the settlement of the bill, to the judge is, "or be delivered to the clerk of the court who tried or heard the case, upon five days' for the judge"; but that is not correct. The notice to the adverse party, or be delivered language is, "or be delivered to the clerk to the clerk of the court, or judge." A proof the court, or judge." The word "or" is vision for the settlement of a statement of not a misprint. It is contained in the en- the case, similar to the provision contained rolled bill of the act on file in the office of in subdivision 3, § 287, Rev. St. 1879, and the Secretary of State, and that it was used subdivision 3, § 298, Comp. St. 1887, is found advisedly, or at least intentionally, a history in subdivision 3, § 1173, Code Civ. Proc. 1895, of the statutes relating to the settlement of where the same clause, "or be delivered to bills of exceptions seems clearly to indicate. the clerk of the court for the judge," is Section 281, First Division, Rev. St. 1879, found; but in the same connection, viz., with provides: "The point of the exception shall reference to the settlement of a statement of be particularly stated, except as provided in the case, as distinguished from a bill of exrelation to instructions, and may be deliv- ceptions. By an act of the Tenth legislaered in writing to the judge, or if the par- tive assembly (Laws 1907, p. 89), section 1173 ty require it, it shall be written down by the was so far amended as to eliminate subdiviclerk. *** When not delivered in writ- sion 3 altogether, and such amendment likeing, or written down as above, it may be wise eliminated from the Code of Civil Proentered in the judge's minutes, and after- cedure the clause "or be delivered to the wards settled in a statement of the case as clerk of the court for the judge"; but the provided in this act. * * This section section as thus amended still retained the related to the allowance of exceptions tak- provision of subdivision 2 above. Sections en during the course of a trial; but it like- 1155 and 1173, as thus amended, are carwise governed in the settlement of a bill of ried into the Revised Codes of 1907 as secexceptions in support of a motion for a new tions 6788 and 6796, respectively. And thus trial, as shown by subdivision 2 of section the law stood at the time this controversy 287. The settlement of a statement of the arose. It is conceded in the brief of counsel, case was governed by subdivision 3 of sec- and is perfectly apparent from the papers betion 287; and it was in this latter subdivi- fore us, that counsel for Girard proceeded sion that the clause "or delivered to the under section 6788, Rev. Codes (section 1155, clerk of the court for the judge" is to be Code Civ. Proc. 1895), and under the provi