183 Ky. 409 | Ky. Ct. App. | 1919
Judge Quin
Affirming.
In the first section of the act referred to is this language: “. . . and the term ‘employes,’ as used in this act shall be held to mean persons actually engaged in or connected with the movement of any train.”
Section 2 is as follows: ‘ ‘ That it shall be unlawful for any common carrier, its officers or agents, subject to this act to require or permit any employe subject to this act to be or remain on duty for a longer period than sixteen consecutive hours, and whenever any such employe of such common carrier shall have been continuously on duty for sixteen hours he shall be relieved and not required or permitted again to go on duty until he has had at least ten consecutive hours off duty; and nc> such employe who has been on duty sixteen hours in the aggregate in any twenty-four-hour period shall be required or permitted to continue or again go on duty without having had at least eight consecutive hours off duty; Provided, That no operator, train dispatcher, or other employe who by the use of the telegraph or telephone dispatches, reports, transmits, receives or delivers orders pertaining to or affecting train movements shall be required or permitted to be or remain on duty for a longer period than nine hours in any twenty-four-hour period in ,all towers, offices, places and stations continuously operated night and day, nor for a longer period than thirteen hours in all towers, offices, places and stations operated only during the daytime, except in case of emergency, when the employes named in this proviso may bo permitted to be' and remain on duty for four additional hours in a twenty-four hour period on not exceeding three days in any
Tn section 3 it is provided that the provisions of the act shall not apply to the crews of wrecking or relief irains.
The Employers ’ Liability Act of 1906, which was approved June 11, 1906, 34th Stat. at Large, 232, chap. 3070, embraced, and included “any employe of an interstate carrier.” Many cases have come before this, and other courts, seeking a construction of said last named statute, as to its applicability to certain named employes, and it has been held to embrace practically every class of persons employed by an interstate carrier, the test being that the employe received his injury “while engaged in interstate commerce for the company. ’ ’ A very full discussion of those embraced in the act will be found in Probus v. I. C. R. R. Co., 181 Ky. 7.
In the employers’ liability cases, 207 U. S. 463, 498, in discussing the act of 1906, Mr.,Justice White said:
“Thus, the liability of a common carrier is declared to be in favor of ‘any of its employes.’ As the word ‘any’ is unqualified, it follows that liability to the servant is co-extensive with the business done by the employers whom the statute embraces; that is, it is in favor of any of the employes of all carriers who engage in interstate commerce. This also is the rule as to the one who otherwise vmuld be a fellow servant, by whose negligence the injury or death may have been occasioned, since it is provided that the right to recover on the part of any, servant will exist, although the injury for which the carrier is to be held resulted from ‘ the negligence of any of its officers, agents or employes.’ ”
In construing this Employers’ Liability Act of 1906, together with the amendments thereto, the court, in Hardwick v. Wabash R. Co., 181 Mo. App. 156, 168 S. W. 328, held that an employe of the company who was doing the same character of work as the appellant in this case, was engaged in interstate commerce and therefore within the act.
It is clear, however, from a reading of the two statutes that congress intended by the Hours of Service Act to restrict and limit the persons to be affected by it, by
In discussing the difference between the two statutes above referred to this court in L. & N. R. R. Co. v. Walker’s Admr., 162 Ky. 209, thus states: “The Federal Hours of Labor Act, making it unlawful for any carrier to permit an employe subject to the act to be or remain on duty for a longer period than sixteen consecutive hours, defines employes as ‘persons actually engaged in or connected with the movement of any train.’ Osborne’s Admr. v. C. N. O. & T. P. Ry. Co., 158 Ky. 176. But the Federal Employers’ Liability Act, providing that the common carriers subject to the act shall ‘be liable in damages to any person suffering injury while he is employed by such carrier in such commerce . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employes of such carrier’ does not undertake to define the meaning of the word ‘employed’ as used in the act or to describe, except as indicated, the employes to whom the act applies.”
Osborne’s Admr. v. C. N. O. & T. P. Ry. Co., 158 Ky. 176. Plaintiff’s decedent was a brakeman in the employ of the railway company. The main question involved in this case related to the actual time that decedent was on duty, but after referring to rule No. 74, promulgated by the Interstate Commerce Commission, relative to employes dead-heading on trains, the court, in answering the argument that although Osborne did not have any duties to perform in connection with the movement of the train on which he was riding or the movement of any other train, he was, nevertheless, on duty in the sense that he was acting under the orders and directions of a superior and did not have the full and free opportunity contemplated by the statute to take subject to his own volition the rest allowed, says:
*412 “There is much force in this position, and if the act permitted us to do so we would be disposed to say that an employe was engaged in service when he was acting under the orders and directions of a superior, although
The Interstate Commerce Commission on March 16, 1908, issued certain rulings interpreting the act of 1907 as follows:
“The act does not specify the classes of employes that are subject to its terms. All employes engaged in or connected with the movement of any train, as described
In Schweig v. Chicago, M. T. St. P. R. Co., 205 Fed. 96, the court held that an employe whose duties were to assist in driving cattle from the yard and chutes into cars; to place boards so that the live stock could pass from the platform into the cars; to fill the water troughs, with which some of the cars were equipped, and-to put sand upon the floor of the cars did not come within the provisions of the act, and this although the stock cars were for interstate shipment. The court uses this language: “I cannot see how he can be said to have been engaged in the movement or operation of a train when he was around these stockyards. He was directed to get these cars ready for service by putting boards between the platforms and the cars, so that the cattle could pass over them into the cars. He was simply getting the car ready for movement; but he was not moving it, nor was he engaged in the movement of it. He was not engaged, within the terms of this statute, in the movement or operation of any train.”
“ ‘The length of hours of service has direct relation' to the efficiency of the human agencies upon which protection to life and property necessarily depends. This has been repeatedly emphasized in official reports of the Interstate Commerce Commission, and is a matter so plain as to require no elaboration. In its power suitably to provide for the safety of employes and travelers, congress was limited to the enactment of laws relating to mechanical appliances; but it was also competent to consider, and to endeavor to reduce, the dangers incident to the strain of excessive hours of duty on the part of engineers, conductors, train dispatcher's, telegraphers and other persons embraced within the class defined by the act.’
“It is true that the Supreme Court did not undertake to name all the persons to whom the act could extend; but it seems that, in naming certain persons to whom the act does extend, it intended to indicate that to come within the act any one not named must be one who comes somewhere near being engaged in duties similar to those mentioned. ’ ’
The foregoing case was affirmed by the Circuit Court of Appeals, 216 Fed. 750, and from the opinion of the latter court we quote as follows: “In riding upon the
In speaking of the reasons leading up to the passage of the act we find this statement in United States v. Kansas City Southern Ry. Co., 189 Fed. 471: “Experience has shown that many serious accidents to trains, causing great loss of life or permanent disabilities to passengers, as well as employes, are often due solely to the fact that members of the train crew had become exhausted by reason of being required or permitted to remain on duty for too long a period, and therefore unable to give that- care and attention necessary for the safety of the train. To prevent accidents from such causes the Congress, in its wisdom, enacted the statute prohibiting railroads, hot only from requiring any employe subject to the act to remain on duty for a longer period than 16 consecutive hours,' but also ‘permitting’ it.”
In United States v. Pennsylvania R. Co., 239 Fed. 576 (District Court), the court held that a yardmaster in a railroad yard, to whom was given certain duties to aid and inform operators of trains and enable them to regulate and control such movements was included in the statute, buildings where the yardmaster was stationed being equipped with telephones and speaking tubes, the yardmaster directing what track should be used by the trains. The court says that there might be room for argument as to whether a yardmaster was within the act but for rule 706 of the company, which expressly classifies yardmasters among employes who give orders “affecting train movements;” for said rule expressly provides that yardmasters “have charge of the movements of trains within the parts of the yard limits assigned to their charge'; and under rule 707 it is provided that freight conductors “must obey -orders of yardmasters. ”,
The court admits that the case is a close one, and says: “As remarked before in other cases, a given case may require us to stand so near the dividing line that its ruling partakes too much of the character of a ‘rescript’ to be altogether satisfying. ’ ’ That even this case was the “dividing line,” and a “close one,” as stated by the court, is shown by Missouri Pac. Ry. Co. v. United States, 211 Fed. 893, where the Circuit Court of Appeals, in reversing the District Court for the Western District of Missouri, held that a switch tender whose duty it was to operate certain switches regulating trains, pursuant to directions given him by telephones connected with a shanty erected at his place of employment, was not embraced within the terms “other employe,” in section 2 of the statute; and the railroad company was not liable for a penalty thereunder because it required such employe to work beyond the specified hours. We quote from this opinion as follows: “As the word ‘employe’ in the proviso of section 2 includes ‘operator’ and ‘train dispatcher,’ for the latter are both employes, the conclusion here is irresistible that Congress intended by the use of the words ‘other employe’ to mean an employe engaged primarily in the same class of service as would be performed by an operator or train dispatcher. If this
United States v. Great Northern Ry. Co., 206 Fed. 838. This wás a proceeding to recover a penalty a,gainst the company for a violation of the act. The train, on which the employe involved was a fireman, was placed on a siding and there .remained for a considerable period of time. All the employes except Bergen, the fireman, were relieved of all duties pertaining to the train, and he was required to remain on duty as an engine watchman. The court says: “From this abstract of the facts, as stipulated, it appears that Bergen was actually engaged as fireman a little less than 16 hours, but as fireman and engine watchman he was on duty continuously for 24 hours, and the question for determination therefore is whether, under the circumstances, his service as engine watchman brings the case within the statute. Conceding, as urged, but not deciding, that Bergen’s service as engine watchman was not directly connected with the movement of the train, he was primarily a locomotive fireman, and, as such, an ‘employe’ as.defined by the act, and was therefore subject to its operation.”
In affirming the judgment of the District Court, the Circuit Court of Appeals (211 Fed. 309) held that Bergen’s duties in watching the engine were in effect the same as those he performed as fireman, stating that in no sense or particular were they different; that when a locomotive is actually running, the duties of the fireman may be more strenuous and occupy his time to a greater extent than when the locomotive is tied up on a siding, but that would be merely a question of degree and would not affect the general nature of the duties of his occupation.
It is claimed by appellee that appellant failed to al.lege that his injury was due to the fact that he was required or permitted to work for more than 16 hours, and that he does not show that the injury complained of happened beyond the 16 hour period. Because of the conclusion we have reached on the other phase of the case we do not find it necessary to discuss this question, but suffice it to say that the Supreme Court of the United States, in St. L. Iron Mtn. & S. Ry. v. McWhirter, 229 U. S. 265, has held that in order to render the carrier'liable under the Hours of Service Act there must be proof showing some connection between the exeeessive hours of employment and the injury.
To hold that an employe, performing duties such as appellant was engaged in at the time he received the injuries complained of, was embraced within the provisions of the Hours of Service Act, would, in our opinion,
The federal court has not gone so far. For example, they reluctantly held that a yardmaster was included, and only did so because a rule of the company stated that yardmasters performed duties pertaining to the movement of trains. A switch tender has been held not to be included in the words “other employes” in section 2, relating to operators, etc. And in another case the District Court was unwilling to decide whether a man watching an engine was included, but the Circuit Court of Appeals held that such an employe was included because he was, in effect, performing the duties of a fireman, which was said employe’s regular occupation.
Aside from these cases we think the language of the Supreme Court of the United States, in the case last ¿ibove cited, is conclusive of this question, where, in referring to the duties of a switch tender, who was held to come within the operator class, it is said that he received and delivered orders pertaining to train movements, not mere switching movements withm■ the yard, thus drawing a distinction between the movement of trains as contemplated by the statute and mere switching movements within the yard. We can see no difference between switching movements in the yard and the cleaning of snow from switches. As we understand the work being done by appellant it was not necessary to the movement of through trains, or train movements within the intendment of the act, but was only to keep the switches in such condition in the yard at Shepherdsville that the switches might be used for switching or yard purposes. But for the yard tracks there would have been no more necessity to have cleared these switches than it would have been to keep the snow from every switch on the company’s line.
We have found no case holding that a section hand or anyone engaged in similar work, was included in the act. Were we to so hold, it is difficult to conceive of any employe having outside work for the company who would not be included. The act is not so comprehensive. The reasons leading to its passage we have heretofore given. It was not the intention to give it as wide a scope as the Employers’ Liability Act.
The demurrer to the petition as amended was properly sustained.
The judgment is affirmed.