MCCORMICK, Circuit Judge. W. E. Maupin, the plaintiff in error, was a section hand in the employ of the defendant in error, the Texas & Pacific Railway Company. His petition charged that on or about the 24th day of August, 1897, while he, together with other section hands, was returning from his work, the hand car on which they were riding, provided by the defendant for their use in going to and returning from their work, was derailed and ran off the track, and threw the plaintiff to the ground, on a lot of rocks, a distance of about 10 feet, inflicting on him serious injuries, for which he claims damage on the ground that the car was defective, out of repair, and in a condition unfit for use; that the wheels were old, worn out, defective, cracked, and broken, and the axles old, worn, crooked, defective, and out of repair, and the whole car worn, defective, and out of repair; that the cogs of the running gear were worn, defective, and out of repair; that the defective condition of the car caused it to leave the track, and caused the injuries to the plaintiff; that the defendant knew of the defective and unfit condition of the hand car, or could have known the same by the use of proper care; that the plaintiff did not know of the defective condition, and could not have known thereof; that the brake on the hand car was old, worn, defective, and out of repair, and in such defective and worthless condition that the hand car, while in motion, could not be stopped by the use of the brake; that the defendant knew this, or should have known it by the use of proper care; that while the plaintiff and other section men were riding on this car it ran upon another hand car on the same track; that, by reason of the defective condition of the hand car which the defendant was on, it could not be stopped by applying the brake; and that by reason thereof it ran into the front car, and was knocked off the track, and the plaintiff was thrown to the ground and injured. The defendant answered by a general demurrer, a general denial, and these special pleas:

"(3) Defendant says the car on which plaintiff was riding when injured was in good condition, and, if there was any defect, it was such a defect that did not contribute nor cause the injury. (4) The plaintiff knew, or by ordinary care could have known, of said defect, and assumed the risk of being injured as he was injured. (5) Defendant says, if there was any negligence of any person that caused the injury to plaintiff, it was the negligence of one of plaintiff's fellow servants, for which defendant is not liable."

There was a conflict in the testimony as to the condition of the hand car which left the track. There was substantially no dispute as to any other material issue of fact.

The court charged the jury, on its own motion, giving in connection with other instructions, not excepted to, the following:

"If the parties in charge of that hand car had instructions not to run closer to the front car than 90 feet, or any other number whatever You may remember from the evidence, and there was evidence upon that subject. My recollection is that Lonis testified that he had repeatedly cautioned them not to run closer than 90 feet, one hand car following the other. Now, if the parties in charge of the rear hand car disregarded that instruction, and ran at a closer distance, and ran into the front car, without using care to prevent a collision, then that is negligence upon the part of that hind crew, there, of which Mr. Maupin was a member, and a recovery could not be had."

The part of the charge just quoted is made the basis of the second assignment of error, in which it is said that the giving of this charge was error, because the proof showed that there was no rule or regulation requiring the two cars to be kept any distance apart, and because Maupin had never been notified of any such rule or regulation, if it existed, and had never been notified not to allow the cars to run close together. It is our opinion that this assignment of error is well taken.

The plaintif in error duly excepted to the giving of that part of the charge which we have quoted, and submitted a request to charge, which request pointed out to the court clearly the defect in the charge given. The refusal of this request to charge is made the ground of the third assignment of error. It is not clear that this third assignment is well taken, because the requested charge involves several propositions, the soundness of some of which, and their ap plicability to the case on trial, may be questioned. Among other things, the request asked the court to instruct the jury that:

"If the brake was defective, and defendant was negligent in requiring plaintiff to use the car, as herein defined, then the plaintiff can recover, notwithstanding the negligence of his fellow servants may have contributed to produce the wreck, provided such defective brake was the proximate cause of the wreck."

From the exception taken to the portion of the general charge. specified, and from the terms above quoted of the requested charge, the attention of the court was fully drawn to the rule of law on which the plaintiff relied, and of which he desired the benefit in a proper instruction to the jury. That rule of law is stated in the text books thus:

"The principle is universal that where the negligence of the principal and that of a fellow servant, together, produce injury, the principal is liable therefor." Bailey, Mast. Liab. p. 439.

In Railway Co. v. Cummings, 106 U. S. 700, 1 Sup. Ct. 493, 27 L. Ed. 266, it is said:

"If the negligence of the company contributed to (that is to say, had a share in producing) the injury, the company was liable, even though the negligence of a fellow servant of Cummings was contributory also. If the negligence of the company contributed to, it must necessarily have been an immediate cause of, the accident, and it is no defense that another was likewise guilty of wrong."

This doctrine is fully recognized in the state courts in Texas. Railroad Co. v. Zapp (Tex. Civ. App.) 49 S. W. 673; Railway Co. v. Hannig, Id. 116; Railroad Co. v. Bonatz (Tex. Civ. App.) 48 S. W. 767.

It is unnecessary to further discuss the errors assigned, as the rulings complained of may not occur on a second trial. On the ground already presented, the judgment of the circuit court is reversed, and the cause remanded to that court, with directions to award the plaintiff a new trial.

to the commission for relief, under the proviso of the fourth section, by which the commission, upon proper application, is empowered to authorize carriers, in special cases, to charge less rates for the longer than for the shorter distance. Accordingly the commission found that the defendant carriers had violated the fourth section of the act, and made an order requiring the defendant carriers "to cease and desist from charging or receiving any greater compensation in the aggregate for the transportation of like kind of property from New York, Boston, Philadelphia, Baltimore, or other Atlantic Seaboard cities. for the shorter distance to Chattanooga, than for the longer distance, over the same line, in the same direction, to Nashville." The order was entered December 30, 1892; but its operation was suspended until February 1, 1893, to enable the defendants to apply to the commission for special authority, under the proviso of the fourth section, to charge the less rate for the longer distance to Nashville. The commission did not definitely decide that the rates to Chattanooga were unreasonable in and of themselves, and they did not decide whether the competition at Nashville was of such a character that, if application had been made to them, they would have made it a special case, and authorized the less charge for the longer distance, though there are sentences in the opinion of Commissioner Knapp from which it is to be inferred that the commission were inclined to think that the rates to Chattanooga were unreasonably high, in violation of the first section, and that the competition at Nashville would not justify making the case an exception to the general operation of the fourth section. The carriers failed to apply to the commission for relief as suggested in the order, or to comply with the order. Thereupon, on March 24, 1893, the interstate commerce commission filed the petition in equity against the defaulting carriers upon which the decree appealed from is founded. The petition set out, by averments and exhibits, the proceedings before it, its findings of fact, its conclusions of law, its order thereon, and the refusal of the defendants to obey, and concluded with a prayer for process, hearing, and enforcement of the order by injunction.

Because of the disqualification of Judge Clark, who had been of counsel, and also because of the pendency of cases in the supreme court, the decision of which it was thought by counsel for both parties would be controlling, the cause did not come on for hearing until December, 1897. Judge Severens decided the case in February, 1898. He held that the commission erred in its view that the defendant carriers were not entitled to rely upon competition of other carriers subject to the interstate commerce law as a condition rendering the fourth section of the act (the long and short haul clause, so called) inoperative without making special application to the commission for relief from its provisions, and thus did not concur in the sole ground upon which the commission expressly based its order. Proceeding to review the whole body of the evidence, however, he found that the competition at Nashville did not render the conditions and circumstances under which defendant carriers conducted transportation thither so unlike those existing at Chattanooga as to take the case out of the long and short haul clause, and that, even if the contention of counsel for the carriers that any real dissimilarity, however slight, in conditions of transportation, took the case out of the fourth section, could be sustained, the discrimination against Chattanooga in the existing rates was so great as to be undue and unjust, within the third section of the act. He therefore concluded that the order of the commission was a proper one on other grounds than that upon which it was based, and entered a decree enjoining the carriers in accordance with its terms. He intimated in his opinion that there was sufficient evidence to sustain a finding that the Chattanooga rates were unreasonably high in and of themselves, but he deemed it sufficient merely to enforce the order of the commission as drawn.

The evidence shows that merchandise consigned from New York and other Eastern Seaboard points (and for the purposes of this case it will hereafter be sufficient to instance the typical case of New York) to Nashville is shipped by a great many different lines, but they are of two classes. One class is made up of east and west trunk lines (so called) lying north of the Ohio river to Cincinnati, and of the Louisville & Nashville Railroad to Nashville. The other is made up of a line, either all rail or by water, to a point in Southern territory, i. e. in Virginia or further south, near or on the seaboard, and thence

by the Southern lines to Chattanooga, and thence by the Nashville, Chattanooga & St. Louis Railroad to Nashville. The business of the east and west trunk lines north of the Ohio river is so great that the rates of freight in force on them are generally much lower (perhaps 33% per cent.) than those in force on the Southern lines, which embrace, generally, all lines in states south of the Ohio and east of the Mississippi. The Louisville & Nashville Railway Company, though a Southern line, has put in force from Cincinnati to Nashville, a distance of 295 miles, the trunk-line rates, so that freight rates on merchandise coming to Nashville, by way of Cincinnati, are substantially less than they would be were the usual Southern rates of freight charged from Cincinnati to Nashville. Of the Southern lines from New York to Nashville, the chief ones are the ocean lines, either to Norfolk, to Charleston, to Savannah, and to Brunswick, and thence by rail through Chattanooga to Nashville, or the all-rail lines to Hagerstown, Maryland, and Alexandria, Maryland, and thence by the Southern Railway through Chattanooga to Nashville. Eighty per cent. of these all-rail lines are in Southern territory, and all the railroads connecting with the Southern steamship lines are also in Southern territory. If Southern rates on Nashville business were charged on that part of the through lines lying in Southern territory, the total freight rate to Nashville would be much higher than that charged via the trunk lines to Cincinnati, and via the Louisville & Nashville road to the same point. Therefore the Southern lines reduce their charges to such a figure that the total rate becomes the same at Nashville by the Southern lines through Chattanooga, as by the Louisville & Nashville road from Cincinnati and New York. As a result, more than 50 per cent. of the through Eastern business to Nashville is carried over the Southern lines. The Southern lines, however, maintain the Southern rates to Chattanooga.

Chattanooga is 330 miles from Cincinnati, with which it is connected by the Cincinnati Southern Railway, under lease to the Cincinnati, New Orleans & Texas Pacific Railway Company. The latter company does not charge east and west trunk-line rates on through business from New York to Chattanooga, but fixes its rates according to the Southern tariff, though they are less than local rates; and in this way Chattanooga rates, from the East through Cincinnati, are maintained on a Southern basis. The rates in the South at Chattanooga and elsewhere are fixed or agreed upon by the Southern lines through an association known at different times by different names,-at one time as the Southern Railway & Steamship Association, at another as the Southern States Freight Association, and now the Southeastern Freight Association. The association has pursued the policy of grouping towns for the same through rate from the Eastern Seaboard. Chattanooga is for this purpose grouped with many cities to the south. As to this the commission made the following finding:

"As appears from tariffs on file with the commission, the following cities and towns, among others, are grouped with Chattanooga, and take the same rail and water rates on classified traffic, to wit: Dalton, Rome, Atlanta, Americus, Athens, Columbus, Ft. Gaines, and Griffin, in the state of Georgia; Huntsville, Decatur, Sheffield, Tuscumbia, Florence, Gadsden, Oxford, Talladega, Anniston, Birmingham, Opelika, Montgomery, Selma, and Eufaula, in the state of Alabama; and Enterprise and Meridian, in the state of Mississippi. Of these, Dalton, Rome, Atlanta, Americus, Athens, Columbus, Griffin, Anniston, Gadsden, Oxford, Opelika, and Eufaula have higher all-rail class rates than Chattanooga, their all-rail rates on the six numbered classes being as follows: 1 5 6

122

2 104

3

91

4

"The rates to Chattanooga and the above-named common points, both rail and water and all rail, are established by the Southern Railway & Steamship Association, of which the defendant lines herein are members. and all traffic to those points is governed by the classification of that association."

The grouping is illustrated by the following sketch taken from the brief of counsel for the carriers:

With this explanation of the way in which the differing rates have come to be fixed, it is proper to make a definite statement of exactly what the differing rates are, and their effect. For transportation and rate fixing, merchandise is classified. There are six classes. The Southern classifications differ somewhat from the trunk-line or official classification, but the differences are not great enough to be material in this discussion. The commission found as follows:

"The following are the through rates from New York and Boston to Chattanooga, Nashville, and Memphis, respectively:

"It thus appears that the rates from New York and Boston are less to Nashville than to Chattanooga, on the six classes, respectively, by 23 cents, 20 cents, 26 cents, 31 cents, 24 cents, and 18 cents; and less to Memphis than to Chattanooga by 14 cents, 13 cents, 21 cents, 28 cents, 22 cents, and 14 cents. These differences prevail in favor of Nashville and Memphis on all goods transported to those cities from Eastern Seaboard points through Chattanooga; the distance to Nashville being 151 miles, and to Memphis 310 miles, further than to Chattanooga.

*

"The following comparison shows the difference between the local rate from Cincinnati to Nashville, and the amounts added to the trunk-line rate to the former place to make the through rate to the latter from New York: