Upon these grounds, we are of opinion that substituted service of process against Ogilvie was inadmissible, and that the District Court did not err in quashing the service and setting aside the proceedings based thereon, nor in refusing appellant's petition for enforcement of the decree against him. Final orders affirmed.

TEXAS & PACIFIC RAILWAY COMPANY v.

RIGSBY.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.

No. 523. Argued February 21, 1916.-Decided April 17, 1916.

Disregard of the Safety Appliance Act is a wrongful act; and, where it results in damage to one of the class for whose especial benefit it was enacted, the right to recover the damages from the party in default is implied: ubi jus ibi remedium.

An employee of a railroad company has a right of action against the company for damages sustained by reason of defective appliances in violation of the Safety Appliance Act even though he was engaged at the time in intrastate, and not interstate, commerce.

Congress may, in the exercise of the plenary power to regulate commerce between the States, require installation of safety appliances on cars used on highways of interstate commerce irrespective of the use made of any particular car at any particular time. When Congress enters a field of regulation within its paramount authority, state regulation of that subject-matter is excluded; and so held that, without leave of Congress, a State can no more make or enforce laws inconsistent with the Federal Safety Act giving redress for injuries to workmen or travelers occasioned by absence or insecurity of such safety devices than it can prescribe the character of the appliances.

The right of private action by an employee injured while engaged in duties unconnected with interstate commerce, but injured by a defect in a safety appliance required by act of Congress, has such relation to the operation of such act as a regulation of interstate commerce that it is within the constitutional grant of authority to Congress over that subject.

Argument for Plaintiff in Error.

241 U. S.

Although § 4 of the Safety Appliance Act of 1910 relieves the carrier from statutory penalties while a car is being hauled to the nearest available point for repairs, it does not relieve the carrier from liability in a remedial action for the death or injury of an employee caused by, or in connection with, the movement of a defectively equipped car. Whether the defective condition of a car under the Federal Safety Appliance Act is or is not due to negligence of the carrier is immaterial, as the Act imposes an absolute and unqualified duty to maintain the appliance in secure condition; nor under § 8 of the Act of 1893 and § 5 of the Act of 1910 is an employee deemed to have assumed the risk although continuing in the employment after knowledge of the defect.

222 Fed. Rep. 221, affirmed.

THE facts, which involve the construction of the Safety Appliance Act and the validity of a verdict against the carrier, are stated in the opinion.

Mr. F. H. Prendergast for plaintiff in error:

Defendant in error received injury caused by a defective ladder on a box car while he was working as a switchman in the yard at Marshall, Texas.

He recovered under the Safety Appliance Act.

To recover he must bring himself under the Safety Appliance Act and under the Employers' Liability Act. Both the car and the man must be engaged in interstate commerce. Ill. Cent. Ry. v. Behrens, 233 U. S. 474; Pederson v. Railway, 229 U. S. 146; Southern Ry. v. United States, 222 U. S. 27.

The car was not under the Act because it had been withdrawn from all service for several weeks.

The car was not under the Safety Appliance Act because it was not being used at the time in any character of commerce, but was being taken from the railroad yard into the shops to be repaired. Ill. Cent. Ry. v. Behrens, 233 U. S. 474; Rev. Stats. Texas, 1911, Art. 6581; Southern Ry. v. Snyder, 205 Fed. Rep. 870; Safety Act, 1910, § 2.

Defendant in error was not under the protection of the Safety Appliance Act because he was not at the time engaged in interstate commerce. Boyle v. Penn. Ry., 221

241 U. S.

Argument for Defendant in Error.

Fed. Rep. 455; Del., Lack. & West. R. R. v. Yerkomis, U. S. Sup. Court; Howard v. Ill. Cent. R. R., 207 U. S. 490; Ill. Cent. R. R. v. Behrens, 233 U. S. 474; Mondou v. N. Y. & N. H. Ry., 223 U. S. 51; Pederson v. Del., Lack. & West. R. R., 229 U. S. 146.

Defendant in error was not under the protection of the Safety Appliance Act because at the time he was injured he was not coupling nor uncoupling cars. Bishop, Noncontract Law, 446; The Eugene F. Moran, 212 U. S. 472; Howard v. Ill. Cent. R. R., 207 U. S. 490; Mondou v. N. Y. & N. H. Ry., 223 U. S. 51; Potter's Dwarris Stat. 128, 140; Sherman & Redfield on Negligence, § 8; Safety Appliance Act, 1893, § 4; Williams v. Chicago & Alton R. R., 135 Illinois, 491.

There was no common-law negligence giving defendant in error a right to recover damages. Flanagan v. C. & N. W. Ry., 45 Wisconsin, 98; S. C., 50 Wisconsin, 462; Watson v. H. & T. C. Ry., 58 Texas, 439.

Mr. S. P. Jones for defendant in error:

Car from which defendant in error fell was in use on an interstate highway, and the injury was caused by a defective safety appliance. Delk v. St. L. & S. F. Ry., 220 U. S. 580; N. C. & H. R. Ry. v. Carr, 238 U. S. 260; Johnson v. Sou. Pac. Ry., 196 U. S. 13; Southern Ry. v. United States, 222 U. S. 23.

The Safety Appliance Law gives a cause of action to employees injured by defects while car is in use on an interstate highway, though the employee is not engaged at the time in interstate commerce. Southern Ry. v. United States, 222 U. S. 23; United States v. C., B. & Q. Ry., 237 U. S. 410; United States v. Erie Ry., 237 U. S. 402. Under Texas Safety Appliance Laws, or independent of safety appliance laws, the defendant in error was entitled to an instructed verdict. Texas Safety App. Laws, Gen. Laws, 1909, p. 64.

MR. JUSTICE PITNEY delivered the opinion of the court.

The defendant in error, Rigsby, while in the employ of plaintiff in error as a switchman in its yard at Marshall, Texas, was engaged, with others of the yard crew, in taking some "bad order" cars to the shops there to be repaired. The switch engine and crew went upon a spur track, hauled out three cars, and switched them upon the main line, intending to go back upon the spur track for others, to be taken with the three to the shops, which were on the opposite side of the main line from the spur track. Rigsby, in the course of his duties, rode upon the top of one of the cars (a box car) in order to set the brakes and stop them and hold them upon the main line. He did this, and while descending from the car to return to the spur track he fell, owing to a defect in one of the handholds or grab-irons that formed the rungs of the ladder, and sustained personal injuries. This car had been out of service and waiting on the track spur for some days, perhaps a month. The occurrence took place September 4, 1912. In an action for damages, based upon the Federal Safety Appliance Acts, the above facts appeared without dispute, and it was admitted that the main line of defendant's railroad was in daily use for the passage of freight and passenger trains in interstate commerce. The trial court instructed the jury, as matter of law, that they should return a verdict in favor of plaintiff, the only question submitted to them being the amount of the damages. The Railway Company excepted to this charge, and requested certain specific instructions based upon the theory that the car was out of service and marked "bad order," which was notice to Rigsby of its condition; that there was no evidence that the condition of the car had resulted from any

1 Act of March 2, 1893, c. 196; 27 Stat. 531; amendatory act of March 2, 1903, c. 976; 32 Stat. 943; supplementary act of April 14, 1910, c. 160; 36 Stat. 298.

negligence of defendant; that it was at the time being taken to the shop for repairs; and that for these reasons plaintiff could not recover. The instructions were refused, and exceptions taken. The resulting judgment was affirmed by the Circuit Court of Appeals. 222 Fed. Rep. 221. It is insisted that Rigsby was not within the protection of the Act because he was not coupling or uncoupling cars at the time he was injured. The reference is to § 4 of the act of March 2, 1893, which requires "secure grab-irons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars." This action was not based upon that provision, however, but upon § 2 of the amendment of 1910, which declares: "All cars must be equipped with secure sill steps and efficient hand brakes; all cars requiring secure ladders and secure running boards shall be equipped with such ladders and running boards, and all cars having ladders shall also be equipped with secure handholds or grab irons on their roofs at the tops of such ladders." There can be no question that a box car having a handbrake operated from the roof requires also a secure ladder to enable the employee to safely ascend and descend, and that the provision quoted was intended for the especial protection of employees engaged in duties such as that which plaintiff was performing.

It is earnestly insisted that Rigsby was not under the protection of the Safety Appliance Acts because at the time he was injured he was not engaged in interstate commerce. By § 1 of the 1903 amendment its provisions and requirements and those of the act of 1893 were made to apply “to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate comand to all other locomotives, tenders, cars, and similar vehicles used in connection therewith," subject to an exception not now pertinent. And by § 5 of the 1910 amendment the provisions of the previous acts

merce