224 F. 160 | E.D.N.C. | 1915
■ On the 8th day of May, 1914, one J. W. Fitzgerald commenced an action against defendant Atlantic Coast Dine Company, returnable before a justice of the peace, from whose judgment an appeal was taken triable before the recorder’s court, at Smithfield, N. C., which court meets every Monday, and generally holds not to exceed half the day. Operator P. H. Ethridge, whose “trick” commenced at 4 o’clock p. ni. and. continued until midnight, was served with a subpoena on the evening of May 25, 1914, to appear as a witness for the defendant before said recorder’s court, at Smithfield, N. C., at 9 o’clock a. m. on May 26,1914. He obtained permission from defendant’s chief dispatcher at Rocky Mount, N. C., to obey the subpoena, with the .understanding, with said dispatcher, that he would return to Kenly, on defendant’s train No. 80, which passed Smithfield at 2:10 p. m. and was scheduled to reach Kenly at 2:30 p. m. on May 26, 1914. Ethridge, on the morning of May 26th, arose at' 4 o’clock and called five other witnesses for the defendant in the same case. Instead of going on the' train which passed Kenly at 5:30 a. m., reaching Smithfield, N. C., at 6 o’clock a. m., he accepted the invitation of a friend to go by automobile, which resulted in his leaving Kenly at 7 o’clock a. m. and reaching Smithfield at 9 o’clock a. m. He remained in the court during the morning and until 1 o’clock p. m. The case of Fitzgerald v. A. C. L. R. R. Co. was not called for trial at the morning session. Ethridge walked three-quarters of a mile to the telegraph office, and wired, to the chief dispatcher that the case would not be reached before evening and to look out for the “second trick.” The case was tried about 4 o’clock p. m. and was dismissed. Ethridge returned by automobile to Kenly, reaching there at 7:30 p. m. and, by reason of being up since 4 o’clock a. m., was fatigued and reported that he was sick. This report was made to operator Scott, who went, at the instance of the chief dispatcher, to have Eth-ridge resume his “trick.” At the time the chief dispatcher received the message from Ethridge from Smithfield, defendant’s train No. 89 had left Rocky Mount, and the only other passenger train on which he could possibly have sent a substitute to take Ethridge’s place was due to reach Kenly at 10:02 o’clock p. m. Defendant, on account oithe condition created by the absence of Ethridge, required and permitted its operator F. W. Scott, to remain on duty from the hour of 8 o’clock a. m. until 8 o’clock p. m/on May 26, 1914, and,its operator B. T. A'll-s-broolc to remain on duty from the-hour of 8 o’clock, p. m., May 26th,
Plaintiff demands judgment on each count for the penalty prescribed by section 3 of the act. Upon the facts agreed, the sole question presented is whether, in permitting the operators to remain on duty, continuously, for longer period than nine hours, it violated the prohibitory provisions of the statute. The answer to that question is dependent upon the construction to be given the words “except in case of emergency,” because,’in such case, the act permits the operator “to be and remain on duty for four additional hours in a twenty-four hour period on not exceeding three days in any week.” This last period was not exceeded by either of the operators.
“We have nothing to do hut to ascertain and declare the meaning of a few simple words in -which the duty is described. * * * Explanation, cannot clarify them, and ought not to he employed to confuse them or lessen their significance. * * * It is urged that this is a harsh construction. To this vre reply that, if it he the true construction, its harshness is no concern of the courts. * *• * Certainly the statute ought not to he given an al)surd or utterly unreasonable interpretation, leading to hardship and injustice, if any other interpretation is reasonably possible.”
This language was approved by the court in C., B. & Q. Ry. v. U. S., 220 U. S. 559, 31 Sup. Ct. 612, 55 L. Ed. 582 and may now be regarded as the settled rule of construction of this statute.
“All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the Legislature intended exceptions to its language, which would avoid results of this*164 character. 'The reason of the law in such cases should prevail over its letter.” United States v. Kirby, 7 Wall. 482, 19 L. Ed. 278.
When the measure of duty is prescribed and the rule commanded to be observe .1, or the conduct prohibited, is clear and absolute, the court will, enforce the duty by enforcing the remedy prescribed by the Legislature. Atlantic R. R. Co. v. United States, 168 Fed. 175, 94 C. C. A. 35, and numerous other cases.
It will be observed, however, that the provisions of the statute under consideration in these cases are free from obscurity and contain no dispensing clause. In the Hours of Service Act, for manifest reasons, Congress deemed it essential for the enforcement of one of the purposes in view (the safety of the traveling public) to make provision for conditions which experience taught that, notwithstanding the highest possible degree of foresight, would sometimes arise. In the Safety Appliance Act, the kind, character, size, and adjustment of appliances generally understood and not difficult to be provided by the railroad companies were prescribed. When, however, Congress came to deal with the question of continuous service of employes, the human element, with its well-understood limitations and contingencies, it was found much more difficult to prescribe an absolute rule and measure of duty. This fact is recognized in the provisions found in the statute upon which this action is prosecuted. It was well known to the lawmakers that in maintaining telegraph offices and stations for the transmission of orders, messages, and instructions, controlling the, movement of trains, conditions and contingencies would arise when, to enforce an absolute, inflexible rule, as to period of service, would defeat the purpose of the law and endanger the safety of travelers, as was said by Judge Sanborn, in U. S. v. Mo. Pac. Ry. Co., 213 Fed. 169, 130 C. C. A. 5:
“Congress perceived, and reflection will convince any one, that the protection, safety, and welfare of travelers and employés upon railroads require that in such cases hard and fast rules shall yield to the demands of humanity and the necessities of the cases. The times when such casualties will occur and when such cases will arise cannot be foreseen.”
We find, therefore, that, after prescribing the number of hours of continuous service permitted, provision is made for “cases of emergency,” in which four additional hours are permitted, with the limitation, in this respect, of “not exceeding three days in a week.” In these exceptions to the measure of duty imposed upon the railroad companies, it is not difficult to interpret the legislative mind and to understand the contingencies for which it was making provision. The lawmakers, while seeking to protect the employé from unreasonable demands, and the traveling public from the danger which a knowledge of the extent of the power ofi human endurance had taught was a safe measure of limitation,* upon such power, also recognized the fact that the character of the service, the location of the stations and offices, at which, in many instances, the service must be rendered, and the fact that its efficiency was dependent upon the human element, with its manifold liabilities to unforeseen and unforeseeable conditions, made provision for an extended service of four hours in “case of
“There is a manifest distinction between, a proviso and an exception. If an exception occurs in the description of the offense in the statute, the exception must be negatived or the party will not be brought within the description. But if the exception comes by way of proviso, and does not alter the offense, but merely states what persons are to take advantage of it, then the defense must be specially pleaded or may be given in evidence under the general issue, according to circumstances.” Simpson v. Ready, 12 M. & W. 736.
“An exception exempts absolutely from the operation of an engagement or an enactment. A proviso defeats their operation conditionally. An exception takes out of an engagement or enactment something which would otherwise be part of the subject-matter of it. A proviso avoids them by way of defeasance or excuse.” West. Assur. Co. v. Mohlman, 83 Fed. 811, 28 C. C. A. 157, 40 L. R. A. 561: United States v. Cook, 17 Wall. 108, 21 L. Ed. 538.
Such force as may be attached to' the placing of the exceptive words does not relate so much to the rules of pleading, or the burden of proof, as to the suggestion that the provisos, found in section 3, indicate that the word “emergency” was used by Congress in a sense different from “casualty,” “unavoidable accident,” “act of God,” or other like terms found therein.
It will be observed that, in prescribing the number of hours of service permitted to employés coming within the first clause of section 3 of the act, no exemption is prescribed. The penalty imposed for its violation can be avoided only by an appeal to the proviso found in section 3, whereas for an alleged violation of that clause of section 2, relating to telegraph operators, defendant is entitled to invoke the exemptive language found in the body of the enactment “a case of emergency.” It will be observed that no terms, such as “extraordinary”
“The apparent and natural meaning of the terms of a statute is always to be preferred to any curious, hidden signification deduced by the reflection and ingenuity of acute and powerful intellects; and, where the language of a statute is unambiguous and its meaning is plain, no room is left for construction.” U. S. v. Mo. Pac., Ry. Co., 218 Fed. 169, 130 C. C. A. 5.
While the courts will endeavor to ascertain and enforce the legislative will, they will not, by strained and forced construction of statutes, give to them such effect as will render their enforcement harsh and oppressive. It is neither reasonable as a rule of construction, nor consistent with the genius of our system of government, to attribute to the legislative department an intention or purpose to entangle the citizen, either natural or corporate, into guilt, and impose punishment and penalties by strained construction of language. To do so would not only make our laws odious but undermine that feeling of confidence in the justice of the Legislature and the court, so essential to cheerful obedience and patriotic service.
“An act which is not clearly an offense by the expressed will of the legislative body before it was done may not be lawfully or justly made such by construction after it is committed, either by the interpolation of expressions or by the expunging of its words by the judiciary.” U. S. v. Mo. Pac. Ry. Co., supra.
■ If, therefore, the defendant was confronted, on May 26, 1914, with an “emergency” and, rather than endanger the safety of travelers on its passenger trains and its employés in charge of both freight and passenger trains, permitted its operators at Kenly “to be and remain on duty for four additional hours,” as the statute authorized it to do, no penalty was incurred. We find that the English word “emergency” is derived from the Latin “emergo,” “to arise out of,” as “something which arises suddenly out of the currents of events.” Brewer, 416. Its synonym is “exigency.” Crabb. It does not appear to be synonymous with “accident” or “casualty.” It manifestly is not so with “act of God.” It is a condition which may arise out of either. That the, failure of defendant’s operator Ethrjdge to return to Kenly at 2:30 o’clock pi m. arose out of, or was caused by, the unexpected failure of the recorder’s court at Smithfield to dispose of the case, in which he was a witness, during the morning, is too clear for debate. “Emergency” is defined as:
“Any event, or occasional combination of circumstances, which calls for immediate action or remedy; pressing necessity; exigency.” Webster.
*167 “A sudden and unexpected happening; an unforeseen occurrence or condition.” Century Dictionary; U. S. v. Sou. Pac. R. R. Co., supra.
It would seem that, accepting these definitions as correct, the failure of Ethridge to return to Kenly at 2:30 o’clock p. m., in time to take his “trick” at 4 o’clock p. m., presented “a case of emergency,” within the statute. Of necessity, each case, as it is presented, must depend largely upon the facts therein.
In U. S. v. Sou. Pac. Ry., 209 Fed. 562, 126 C. C. A. 384, to the suggestion that the company should have had extra train dispatchers, under pay, ready to take the place of one who became ill, Carland, J., says:
“The law recognizes the fact that, emergencies may arise. Congress, no doubt, used the word ‘emergency* with reference to the business of dispatching trains when conducted in the exercise of the ordinary care required in such business. If Congress had intended that the railroads should provide against all emergencies, then there was no use in granting to the company the right to require longer hours in the case of emergency.”
In that case one of the operators was taken ill. The train dispatcher was unable to procure an operator to take his place. This condition continued from August 27 to September 3, 1912, during which time the other operators were on duty for more than 9, but not exceeding 12, hours. It was held that the chief dispatcher was not required to take the place of the one who was sick.
In U. S. v. Mo. Pac. Ry. Co., 213 Fed. 169, 130 C. C. A. 5, the operator was on duty in excess of the 9 hours prescribed by the statute and the additional 4 hours permitted to- meet an emergency. Defendant was therefore compelled to rely, for a defense, upon the provisos to section 3. It appeared that the necessity grew out of a wreck on its road.
“Every possible effort was made to clear away the wreck at once. When the wreck occurred, the defendant expected to clear it away by II o’clock p. m., December 11th, which would have been 3 hours within the 17 hours of service permitted in case of accident. The company could have procured a relief operator at the time the wreck occurred, but it did not know and could not foresee that one would be necessary. It expected and believed 1liat the wreck would be cleared by 11 o’clock. Subsequent unavoidable difficulties delayed the clearance until 5 a. m., December 12th, and made the continuous service necessary until 6:35 a. in. of that day.”
The court held that “this was a case of unavoidable accident,” and the continuous service necessary.
In United States v. N. Y., O. & W. Ry. Co. (D. C.) 216 Fed. 702, it appeared that one of the operators was taken suddenly sick, thereby causing another operator to remain on duty — held to be a casualty. In the same case it appeared that the mother of one of the operators, who was living with him, died suddenly and unexpectedly, and that for this reason he did not report for duty, and another operator was required to work for more than nine hours. In an interesting discussion, Judge Ray decides that these conditions were casualties. In U. S. v. Denver & R. G. R. Co., 220 Fed. 293, 136 C. C. A. 275, one of the operators, on September 8, 1912, became insubordinate and was, for that cause, dismissed. It was impossible to obtain another operator to take his place until September 10, 1912, which rendered it necessary
In San Pedro, R. A. & S. Ry. Co. v. U. S., 220 Fed. 737, 136 C. C. A. 343, it appeared that the company, as in the instant case, employed three operators at Kelso, whose regular hours of service were the same as here. One of them was taken ill January 16th. An operator was started on the -17th, from the nearest available point, to relieve the other two, in time to have reached Kelso within three days, “but unfortunately the train on which he was proceeding was derailed, * * * blocking the main line,” resulting in a delay which rendered it necessary for the other operators to be and remain on duty in excess of the prescribed hours during January 20th and 21st. The court held that these conditions relieved the road of the penalty.
In Delano v. U. S., 220 Fed. 635, 136 C. C. A. 243, the only question decided was that the company does not escape liability for requiring a train dispatcher to remain on duty for a longer period of time than prescribed by the statute, by showing that, during a part of the time, he was employed otherwise than as a train dispatcher. The sole point decided in U. S. v. Ch. & N. W. Ry. Co. (D. C.) 219 Fed. 342, is that delays in the 'departure of trains is not an emergency, within the statute. This is manifestly true.
As to the first count, it would seem that the defendant, in permitting operator Scott to remain on duty from, 8 o’clock a. m. until 8 o’clock p. m. on May 26th, being 3 hours in excess of the 9 hours prescribed, except “in case of emergency,” is not liable to the penalty.
Ethridge returned to Kenly at 7:30 p. m.; “by reason of being up since 4 o’clock a. m. was fatigued and reported that he was sick.” It is admitted that operator Scott “went at the instance of the chief dispatcher to have Ethridge resume his ‘trick.’ ” It is admitted that no substitute coidd have reached Kenly until 10:02 of the night of the 26th. It does not appear at what hour the chief dispatcher at Rocky Mount was notified that Ethridge reported at Kenly “sick.” Alls-brook went on duty at 8 o’clock a. m. on the 27th. Conceding that the sickness of Ethridge was an emergency, and that it arose at 7:3Q p. m. of the 26th, the question is presented whether the chief dispatcher should not have caused a supply to be at Kenly on the train reaching there at 10:02 p. m., which leaves Rocky Mount at 8:32 p. m., or shown that one could not be had. It was the duty of Ethridge to report promptly his physical condition upon reaching Kenly. It is provided that:
“In alt prosecutions under this act the common carrier shall be deemed to have knowledge of all acts of its officers and its agents.”
The chief dispatcher was notified at 1 o’clock p. m. that Ethridge was detained at Smithiield beyond the schedule time of the train reaching Kenly at 2:30 p. m. It (loes not appear whether he was informed that he could or would return on an automobile. Assuming that he was notified that Ethridge had returned to Kenly at 7:30 o’clock, sick, he knew that Allsbrook, the operator going on at 8 o’clock p. m., would be compelled to remain on duty more than 9 hours, unless Scott, who had been on 12 hours, took his trick at 5 o’clock á. m. There is no suggestion that he did not have an operator at Rocky Mount, whom he could have sent to relieve the situation at Kenly. The sole question, therefore, is whether, when the emergency caused by Ethridge’s sickness arose, the defendant was prevented by a casualty, or unavoidable accident, from meeting it, and thereby avoiding the necessity for the extended service from 5 a. m. to 8 a. m. of the 27th. In the cases cited, wherein there was a sick emergency, the chief dispatcher promptly undertook to supply tlie missing or sick operator, hut was prevented by casualties or accidents. Here there was no effort made to do so. While I do not follow the argument of counsel that, for the purpose of fixing liability on the company, Ethridge is to be regarded as on duty from 4 o’clock a. m. until 7:30 p. m., and that therefore no defense, under the exemptive terms of the statute, is open, to the defendant, I am unable to find that the extended period of service from 5 a. m. to 8 a. m. on the morning of the 27th was caused by an emergency or by a
On the second count judgment will be entered for plaintiff for $100 and cost.
