The opinion
Mr. Justice Cartee, dissenting:
I cannot agree with the conclusion stated in the opinion that the defective coupler was not the proximate cause of the injury. The evidence of at least two witnesses shows that in making such a switch or movement as was going on at the time of the accident there was no reason why the coupling pin could not be raised either before or at the time the cars were started, provided the appliances were such that the pin could be-held up when once raised. It also shows that there ■ were different kinds of couplers in general use which would hold the pin. up under such circumstances, and thereby render it unnecessary and useless for a switchman to ride between the engine and car in making a kicking switch. The uncontradicted evidence shows there was no way to keep the coupling on the engine here in question up, when once raised, except by holding it up by the hand; that if it was not thus held up it would immediately drop back into place and thereby lock the coupler. The Federal and State acts that bear on this subject make it unlawful for any common carrier subject to the provisions of the acts to haul or use on its line any engine or car “not equipped with couplers coupling automatically by impact and which can be uncoupled without the necessity of a man going between the ends of the cars.” This necessarily means, also, between the end of the engine and a car. It was contrary to both of these statutes to use the engine in question with a coupler in such condition that it was necessary for a switchman to go between the engine and the car to uncouple them in making a switch. These statutes leave it to the carriers to adopt whatever particular kind of coupler they prefer, provided that the coupler used be such as will couple automatically and can be uncoupled without the necessity of a man going between the engine and the cars. If there were no couplers which would permit an engine and car to be uncoupled without the necessity, of a man going between them to malee a kicking switch like the one in question it might be claimed that the statutes were unreasonable, but the evidence in this record is that such couplers are in use. If the exercise of reasonable care in maintaining the statutory standard of equipment will not exempt a car movement as being beyond the spirit of the statute, much less will mere convenience be accepted as an excuse. Chicago Junction Railway Co. v. King, 94 C. C. A. 657 .
The evidence shows that it was the custom in this yard for the switchmen to ride between the engine and car, as deceased did, when making a switch of this kind, but I can not concur in the conclusion that this custom necessarily existed irrespective of any kind of coupler on the engine. I find no evidence in the record in conflict with the testimony of the two witnesses in question that there were couplers in general use which were so constructed that they could be uncoupled in such a. switching movement without the necessity of men going between the engine and car. Neither do I agree with that part of the opinion that states, even though the failure to comply with the law as to the coupler in question required deceased to ride upon the running-board of the locomotive, such failure to comply with the law was not the proximate cause of the injury.