
    ST. LOUIS & S. F. R. CO. v. DELK.
    (Circuit Court of Appeals, Sixth Circuit.
    June 27, 1908.)
    No. 1,747.
    On motion to rehear.
    For former opinion, see 158 Fed. 931.
    Before BURTON, SEVERFNS, and RICHARDS, Circuit Judges.
   PER CURIAM.

Motion to rehear denied.

RICHARDS, Circuit Judge

(dissenting). Although no opinion has been handed down upon the denial of the motion, 1 think for certain reasons I ought to state the grounds I dissent from it. This case was decided March 3, 1908, and I dissented then, stating my grounds. Subsequently, on May 18, 1908, the Supreme Court of the United States decided the case of St. Louis, Iron Mountain & Southern Ry. v. Taylor, Adm’x, 28 Sup. Ct. 616, 52 L. Ed. -; Mr. Justice Moody delivering the opinion. In the course of the opinion it became necessary for the court to express its view of tlie operation and obligation of the safety appliance law, and it stated that, in enacting the law:

“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.”

This was the view taken by the court below, and I could not do other- than dissent from this court reversing the judgment because of action based on'it. I dissent now for the purpose of pointing out that while the case has been sent back to grant a new trial, to be conducted in accordance with the contrary view taken by this court of the effect of the act, seemingly such view is inconsistent with the one announced since by the Supreme Court.  