It will be conceded that the tracks and station of the terminal company are used in facilitating interstate commerce. The passengers, baggage, and express moved over its tracks and through its station are in course of transportation between the District of Columbia and the States. A ticket sold by the agent of the terminal company for one of the tenant railroad companies entitles the purchaser to a continuous passage for himself and baggage over the lines of the terminal company and the connecting lines of the tenant company. The tracks, stations, shops, roundhouses, engines, agents, and employees of the terminal company, therefore, become efficient and instrumental agencies in conducting trade and commerce in the District of Columbia, and between the District and the different States of the Union.

It is contended that the Washington Terminal Company does not own a car nor carry a passenger, and cannot therefore be held to be a common carrier. To make it a common carrier within the commerce clause of the Constitution, it is not necessary that it should own a car or carry a passenger. As we have observed, it owns a railroad and station, and, through its agents, controls the operation of the trains over its tracks and into and out of its station. With its engines it shifts the empty cars over its tracks and makes up the outgoing trains. It is not essential that a car be loaded, to be engaged in interstate commerce. Johnson v. Southern P. Co. 196 U. S. 1, 49 L. ed. 363, 25 Sup. Ct. Rep. 158; Voelker v. Chicago, M. & St. P. R. Co. 116 Fed. 867. Neither do we think it is necessary that a railroad should actually own cars in order to be a common carrier engaged in interstate commerce. It is sufficient if it owns and controls one of the instrumentalities essential in carrying on trade and commerce between different points, without the use and subjection to the control of which such trade and commerce cannot be conducted. Steam railroad passenger traffic entering and leaving the city of Washington is exclusively managed, operated, and controlled by the Washington Terminal Company while within the zone occupied by its station and tracks. In the case of the Union Stockyards Co. v. United States,

94 C. C. A. 626, 169 Fed. 404, it appears that the Union Stockyards Company owns and conducts extensive stock yards at South Omaha, Nebraska. In connection with the operation of the yards, it owns 35 miles of railroad track. It owns its engines, which are operated by its employees. The only cars owned by it are three flat cars used for hauling refuse, and one box car used as a tool storage car. All traffic destined to and from the stock yards is delivered to the stockyards company at a common point called the transfer track, where the loaded cars are turned over to the stockyards company to be hauled by its engines, under control of its employees, to the yards, pens, and sheds of the company. All outgoing freight from the yards, empty cars, and cars loaded with the products of the large packing houses immediately adjoining the stockyards, are delivered by it to the respective railroad companies at the transfer tracks. The question involved was whether the stockyards company was a common carrier within the provisions of the safety appliance act of Congress. Mr. Justice Van De-vanter, speaking for the circuit court of appeals, said: "It must be conceded that the stockyards company would not be a common carrier, nor the property used by it a railroad, if its operations were confined to maintaining the sheds or pens, to unloading shipments thereto, to loading shipments therefrom, and to feeding, watering, caring for, and otherwise handling live stock therein. But its operations are not thus confined. On the contrary, they include the maintenance and use of railroad tracks and locomotives, the employment of a corps of operatives in that connection, and the carriage for hire over its tracks of all live stock destined to or from the sheds or pens, which, in effect, are the depot of the railroad companies for the delivery and receipt of shipments of live stock at South Omaha. The carriage of these shipments from the transfer track to the sheds or pens, and vice versa, is no less a part of their transit between their points of origin and destination than is their carriage over any other portion of the route.”

It matters not that the safety appliance act was there involved. The same rule of construction will be applied to the

employers' liability act. Both derive their authority from the same source, and the general intendment of each is the same. Neither is it important that the stockyards company charged a fixed rate of $1.50 per car for hauling the cars to and from the transfer tracks, while in the case at bar a monthly rental, based upon the proportional number of engines and cars moved over the terminal company's lines, is paid by the respective railroad companies for the use and service rendered by the terminal company. The situation would not be different if the terminal company received a percentage on each passenger ticket sold, since, in the last analysis, the tenant roads in each instance are afforded the services of the tracks, engines, and employees of the terminal company for hire.

In Southern P. Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498, 55 L. ed. 310, 31 Sup. Ct. Rep. 279, an attempt was made to enjoin an order of the Interstate Commerce Commission requiring the appellant companies to desist from granting and giving Young, a shipper of cotton seed products, at the port of Galveston, Texas, undue preferences and advantages. The Southern Pacific Terminal Company was organized to construct and maintain wharves and docks for the accommodation of vessels, and tracks and terminal facilities for what is known as the Southern Pacific Railroad & Steamship System. It appeared that the Southern Pacific Railroad Company owned 99 per cent of the capital stock of the railroad companies whose lines centered at this terminal, and also 99 per cent of the capital stock of the terminal company. In transferring freight from the railroads to the vessels, the tracks and warehouses of the wharfage company were used, for which compensation was paid. In holding that the terminal company was a common carrier, Mr. Justice McKenna said: "We assume that the wharves in the pending case are the instruments of a common carrier. This is, however, denied, and it is asserted that the terminal company is purely a wharfage company, and 'has no power under its charter to act as a common carrier.' The contention is based on a partial view of the conditions. The terminal company was incorporated to execute

the purposes expressed in the act of the legislature of the State of Texas, that is, to construct terminal facilities for the Southern Pacific Railroad & Steamship Systems, and to accommodate the export and import traffic at Galveston; and, necessarily, as instrumentalities of such traffic, wharves and piers are as essential as steamships and railroads, and are, in fact, as they were intended to be by the charter of their authorization, parts of a system."

Again it matters not that the Southern Pacific Railroad Company owned 99 per cent of the stock of both the terminal company and the railroads centering there. It was held to be a part of the system used for the movement of commerce. The case at bar is even stronger, since the Baltimore & Ohio and the Philadelphia, Baltimore, & Washington Railroad Companies own all the stock of the Washington Terminal Company and own all the railroad lines immediately connecting therewith. The other tenant roads of the terminal company are also tenants of these two owning companies, and compelled to connect with the lines of the terminal company over their roads.

While the cases cited differ somewhat in fact from the case at bar, there is no difference in principle. In the former case. the terminal facilities furnished by the stockyards company were held to constitute a part of the means employed for the transportation of interstate commerce to and from the South Omaha stock yards. In the latter case the terminal tracks, wharves, docks, and piers were held to form a connecting link in the system, over which all commerce between the vessels and the centering lines of railroad must pass. In the case at bar the terminal company's railroad and station form a part of the system over and through which all commerce centering at the Washington union station must pass. In each instance the agencies in question are no less common carriers, engaged in trade and commerce, than are any other parts of the tenant or connecting lines of railroad. If we accord to the act the liberal construction essential to make it apply to the subject sought to be regulated by Congress, we must hold that the

Washington Terminal Company is a common carrier within the meaning and intent of the employers' liability act.

It is urged by counsel for plaintiff that the verdict of the jury should have been taken subject to the opinion of the court. There is great force in this contention. Rule 52 of the supreme court of the District of Columbia provides for just such an emergency as confronted the trial court in this case. No injury nor injustice could have been inflicted upon the defendant had this course been pursued. As it is, the entire expense and delay attendant upon a new trial will again have to be incurred. No valid excuse is apparent why, in a case like this, the rule should not be followed. Courts should be eager to avail themselves of every opportunity to facilitate the despatch of business, curtail cost, and discourage litigation, when it can be accomplished with equal justice to all concerned.

The entry of a separate judgment in favor of the Baltimore & Ohio Railroad Company is assigned as error. We will not pass upon the propriety of the action of the court in directing a separate verdict in its favor, and entering a judgment thereon over the objection of plaintiff before all the evidence in the case had been submitted. It may be suggested that if the judgment in favor of the terminal company could be sustained, the action of the court in releasing its codefendant would present a question of law, not necessary in the present state of the case to be decided, but sufficiently apparent to serve as a warning against the further indulgence of the practice. It is impossible for us to determine what a new trial may develop touching the joint liability of the defendants, and, lest the plaintiff might be prejudiced were the judgment in favor of one of the codefendants permitted to stand, the judgments will both be reversed, and the relation of the parties restored as it originally existed.

Inasmuch as a new trial must be ordered, it is unnecessary to consider the other questions raised by this appeal. They may not be involved in another hearing, and, if they are, we cannot foresee the circumstances and facts that might be be fore the court if again called upon to rule thereon.