226 F. 220 | N.D.W. Va. | 1915
The declaration in this case contains 30 counts, setting forth the alleged violations of the act in question. The parties have come to an agreement as to the causes of action covered by the first 10 counts, and the questions arising upon the last 20 counts have, by proper stipulation, been submitted to the court for trial without a jury, upon the pleadings and an agreed statement of facts.
Counts 11 to 20, inclusive, involve the alleged violation of the act, in that two telegraph operators at a day and night station known as Pine drove, W. Va., and one at a place laiown as the Pine Grove and Hundred, in the same state, on the 26th day of December, 1912, worked a greater number of hours than prescribed by statute, to wit, the operators at Fine Grove continuously for 12 hours in a 24-hour period, and the one at Pine Grove and Hundred for a period of 13 hours and 59 minutes; and counts 21 to 30, inclusive, involve a like charge, in that it is averred that two of the three telegraph operators of the defendant company were required on the 26th of January, 1913, at Wheeling, W. Va., a day and night station, continuously to remain on duty for a period longer than 9 .hours, to wit, 12 hours, in a day of
The defendant earnestly insists that it was not in default, for the reason that under the law regulating hours of employment of em-ployés engaged in interstate traffic, it- was exempt from liability, and hence not required to make report, where the extra hours of service were caused by an emergency, in which event its employes were permitted to be and remain on duty for 4 additional hours in the 24-hour period for not exceeding 3 days in any one week, and that both as respects the alleged charge of extra hours at Pine Grove and at Wheeling there was such an emergency as warranted the continuance of its telegraph operators in service for 12, instead of 9, hours; that in each instance the extra duty only lasted 4 hours for one day in • one week; that the emergency at Pine Grove arose from a wreck on the road, which necessitated -sending one of their three operators to the scene of the wreck; and that the emergency at Wheeling was caused by one of the three operators being detained from reporting for duty at the proper hour, because of the sudden illness of his wife, which caused the extra hours of work to be performed there. Defendant further insists that, as respects the third operator at Pine Grove and Hundred, it was not required by law to make any report of the extra hours of service, because the duty was performed at a wreck, and under the terms of the act referred to the same did not apply to crews of wrecking or relief trains.
The. case thus, stated presents two legal questions for determination, namely, whether the defendant is required to make report of - extra service hours where the same does not exceed more than 4 hours in each day of 24 hours for 3 days in a week, and whether the report of extra hours is required where telegraph operators are engaged at a wreck. These will be considered in the order mentioned.
First. The defendant insists that, having been charged specifically in the declaration with a failure to comply with the order of the Interstate Commerce Commission of the 28th of June, 1911, it is only liable for an infraction of that order, and that the government cannot rely upon a subsequent order of the Commission, dated the 8th of April, 1912, set up in its replication to the defendant’s pleas filed herein, and further says that the requirement imposed by the order of the 28th of June, 1911, “to report within 30 days after the end of each month, under oath, all instances where employes subject to said act have been on duty for a longer period than that provided in said act,” imposed no obligation upon it to make report where the extra hours of service of such employés did not exceed 4 hours a day fof 3 days in one week. .
“See. 2. - * Provided, that no operator, train dispatcher, or other employ? 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-tour 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 ihe day time, except in casts of emergency, when the employés named in this pmniso may be permitted to be and remain on. duty for four additional hours in a twenty-four hour period of not exceeding three days in any week. '• v *
•‘See. 3. 0 ° Provided further, that the provisions of this act shall not apply to the crews of wrecking or relief trains.”
The terms of the act seem clearly to sustain the defendant’s contention as respects the duty to make reports as to this class of em-
An order will be entered awarding judgment for $400 against the . defendant, with costs.