240 F. 28 | 6th Cir. | 1917
These two cases present the same question, with regard to separate, but similar, incidents. In actions brought to recover the statutory penalties for violation of the Safety Appliance Act (27 Stat. 531) as amended (29 Stat. 85, and 32 Stat. 943), a verdict was directed against defendant on five counts, involving five cars; and to review judgments imposing the penalty of $100 for each violation, the railroad brings these writs of error.
It appeared without dispute that defendant’s N K yard at Youngstown is an interchange yard between various railroads; that government inspectors at this yard, as these cars came into the yard, found them defective because they would not couple by impact, and marked them as “bad order”; that, after each car was so marked, the railroad hauled it, for the purpose of being repaired, from its N K yard four miles to its Brier Hill yard, in a train in which there were other cars engaged in interstate traffic, and in which there were mixed empties and loaded cars in commercial use, and none of which trains was strictly a “hospital train”; and that no one of the cars contained live stock or perishable fruit. By conceded facts, or by the railroad’s offer to prove, it further appeared, or might be inferred, that the cars had serious injuries requiring major repairs; that they had once been properly equipped as provided by law, but had become defective while being used; that they were first discovered to be defective while in the N K yard; that there' was no shop or repair track at that yard; that it was necessary to haul the cars to the Brier Hill yard, which did have
The essential parts of the statute which must determine defendant’s liability are as follows:
Section 2 of the act of March- 2, 1893, as amended (29 Stat. 85): “That on and after the first day of January, 1S98, it shall he unlawful for any ⅞ * * common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the ears.”
Act of March 2, 1903 (32 Stat. 943): “ * * ⅞ The provisions and requirements hereof and of said acts relating to train brakes, automatic couplers, grab irons, and the height of drawbars shall be held to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce.”
From section 4 of the act of April 14, 1910 (36 Stat. 298): “Provided, that where any car shall have been properly equipped, as provided in this act and the other acts mentioned herein, and such equipment shall have become defective or insecure while such car was being used by such carrier upon its line of railroad, such car may be hauled from the place where such equipment was first discovered to be defective or insecure to the nearest available point where such car can be repaired, without liability for the penalties imposed by section 4 of this act or section 6 of the act of March 2, 1893, as amended by the act of April 1, 1896, if such movement is necessary to make such repairs and such repairs cannot be made except at such repair point; and such movement or hauling of such car shall be at the sole risk of the carrier, and nothing in this section shall be construed to relieve such carrier from liability in any remedial action for the death or injury of any railroad employs caused to such employs by reason of or in connection with the movement or hauling of such car with equipment which is defective or insecure or which is not maintained in accordance with the requirements of this act and the other acts herein referred to; and nothing in this proviso shall be construed to permit the hauling of defective ears by means of chains instead of draw-bars, in revenue trains or in association with other cars that are commercially used, unless such defective cars contain live stock or ‘perishable’ freight.”
From section 5 of the act of April 14, 1910: “That except that, within the limits specified in the preceding section of this act, the movement of a car with defective or insecure equipment may be made without incurring the penalty provided by the statutes, but shall in all other respects be unlawful, nothing in this act shall be held or construed to relieve any common carrier.”
Prior to 1910, the prohibition in the Safety Appliance Act against hauling cars which would not couple automatically by impact seemed to be absolute and unconditional. It was obvious that cars would become defective in this particular, or be discovered to be so defective, either while they were in transit between stations or while they were upon a side track or in a yard where it was impossible to make repairs. If this occurred in transit where there was no side track, the defective car could not be set out from the train, unless it happened to be the last
It was not expressly /decided in the Snyder Case that a bad-order car could be hauled to a repair point, if it was hauled alone and not in connection with cars commercially used. . That question was not presented by the Snyder Case. So far as what this. court there said may imply that such a movement would be permitted, it is not now necessary to consider whether such implication was correct. The Supreme Court in Southern Ry. Co. v. United States, 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72, held that it is immaterial whether the bad-order car was or not used in connection with interstate cars, and that the prohibition, which was absolute in form, was directed broadly against any railroad engaged in interstate commerce. Whether or not the distinction between hauling a bad-order car alone and hauling it in connection with cars commercially used was based on the supposed force of the words “used in connection therewith,” in section 1 of the act of 1903 (Chicago & N. W. Ry. v. United States, 168 Fed. 236, 93 C. C. A. 450, 21 L. R. A. [N. S.] 690), and whether or not the logical basis of the distinction disappeared when the Supreme Court held that this clause “used in connection therewith” was redundant and ineffective, it is enough to say that the decision in Southern Ry. Co. v. United States, taken in connection with the view of the statute adopted in St. Louis, etc., Ry. Co. v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061, and when both were read in the light of the unqualified prohibition of the statute, created such a situation that the Senate committee, in reporting this amendment, said:
“There is, therefore, great doubt as to the right of a railroad company to move even a defective car to a point of repair.”
It should be noted, also, that if there was any special force in the word “use,” as found in the act of 1893 and the amendment of 1903, so that the hauling of a car, from the place where it was found defective even to the nearest side track where it was set out, could be excused on the ground that such car was not .“in use,” that possibility has disappeared, through the form fixed by the amendment of 1910 for the first part of section 4, which penalizes “permitting to be used or hauled on its line any car,” etc., thus reaching even any “hauling” (if any there be) which might not be “use.”
“Nothing in this proviso shall be construed to permit the hauling of defective cars by means of chains instead of drawbars, in revenue trains or in association with other cars that are commercially used,” etc.
This exception or proviso is capable of more than one construction. It may refer only to cars where the coupling devices are so defective that the cars must be hauled by chains, instead of drawbars. This we call the first construction. If this is to be adopted, it excepts such chained-up cars from the general hauling permission given in the body of the proviso, and, as to them, restricts that permission to some method which does ont involve hauling them in association with other cars commercially used, and thus, by inference, permits the hauling of a chained-up car to the nearest available repair point by an engine devoted only to that car, or in “hospital trains,” or perhaps in some other way. By what we call the second construction, the subproviso refers to three different classes of cars, and forbids the hauling of defective cars: (a) By means of chains instead of drawbars; (b) in revenue trains; or (c) in association with other cars commercially used. If this is right, defective cars cannot be hauled at all by means of chains instead of drawbars, nor can they be taken even to the nearest repair point, unless by themselves and, not in association with commercial cars. This second construction is the one contended for by the government and adopted by the court below; the first is urged by the plaintiff in error.
However, to determine the meaning of a statute on such grounds is usually to be overnice; we elaborate this matter, not as entirely satisfactory support for our view, but to demonstrate that the other meaning is not required by the most literal adherence to the words and the grammar of the law. Since both constructions are open, it is merely to beg the question to say that the first is the natural and obvious one; yet this impression cannot be resisted, and is, in some measure, confirmed by observing that Mr. Justice Van Devanter said, in United States v. Erie R. R., 237 U. S. 402, 409, 35 Sup. Ct. 621, 624 (59 L. Ed. 1019), while reciting the effect of the subproviso according to what he evidently thought was the obvious meaning, that the subproviso “declares that nothing therein shall be construed to permit the hauling of' defective ca'rs ‘by means of chains instead of drawbars’ in association with other cars in commercial use.” He evidently interprets the sub-proviso according to the construction which we have thought the right one; and this is some indication that it is the meaning naturally to be attributed to the language used.
In getting the right viewpoint for the amendments of 1910, it is further to be remembered that, under the former acts, the conflict between the canons that a penal statute should be strictly construed and a (so-called) remedial statute liberally was resolved in favor of the latter view largely — and, it seems, mainly — in order to give effect to the supposed dominant intent of tire law that the employés’ right to recover for personal injuries should not be impaired by any relaxation of the restrictions; and this right the 1910 amendments expressly and fully preserve. However we interpret “nearest available point,” and even if “hospital trains” of chained-up cars may be moved to a repair point, and even if défective cars not chained may be hauled in a revenue train to the nearest available repair point, this underlying purpose to give the employé an unimpaired right of action is not touched; he may recover, regardless of the fact that the movement to the repair point was perfectly lawful. The rule disappears when its reason does; hence the rule of construing strictly against the railroad the provisions of the act, as that rule was established before 1910, has its force distinctly lessened, at least, as applied to this amendment.
Another consideration leading to the samé result is that many cars are injured so that the drawbars will not work and so that chains must be used; these injuries occur everywhere and anywhere on the road; the necessity for moving, to suitable repair places, cars with this kind of injury, is often more apparent than with the cars that have less injuries ; yet, upon the second construction, that favored by the government, cars so injured cannot be moved at all, and as to them the whole broad purpose of the proviso of section 4 utterly fails; they must be left where they are, beyond the reach of repair, and perhaps blocking
We are cited to some comment in the committee’s report to the Senate, as tending to show that it was not intended to allow damaged cars to move in connection with those commercially used. As to this comment, it may be said, first, that it is ambiguous, and very likely was intended to refer only to hauling generally, and not to refer to hauling only to the nearest repair point; and, second, that the comment was made before this subproviso was a part of the act. We get no help from this report. It may as well be argued that the later insertion of the subproviso was expressly intended to cure a defect indicated by this comment.
These views require that the judgment shall be reversed, and the case remanded for a new trial.
The record did not require the conclusion that the cars had become defective before they came to be used by defendant on its line.