219 F. 342 | W.D. Mich. | 1914
This is a suit to recover penalties for violations of the Flours of Service Act of March 4, 1907, in keeping telegraph operators on duty for more than 13 hours during periods of 24 hours. The complaint or declaration contains 24 counts, in each of which a separate and distinct violation is alleged. The defendant confesses liability under 14 of the counts, but denies liability under the other 10 counts. The decision of the case in each of 8 counts hinges upon the question of whether or not the time for meals of the operator should be deducted from the hours of his service. The stipulated facts in this regard are as follows:
“As to counts 2, 3, 7, 9, 30, 11, 12, and 13 the employés in each instance were off duty for dinner, or supper or both for full regular periods of one hour for each meal sufficient to reduce the period of service to less than 13 hours. And as to these counts it is agreed that the testimony shows thát the employé always has a full hour off duty for dinner and also for supper as a uniform and regular practice; that they have no definite recollection as to the particular days in question; that if during a meal hour an unexpected train should arrive at their station they would give it the necessary attention and complete their meal hour after doing so as a common practice; that they were paid for the full amount of overtime charged; and also for their regular service.”
“A regular passenger train, through from Calumet, Mich., to Chicago, 111., over the Duluth, South Shore & Atlantic Railway and Chicago & Northwestern, due to be delivered to the Chicago & Northwestern Railway at Ishpeming, Mich., at 6:15, and due out of Ishpeming at 6:30 p. m., was not delivered to the Chicago & Northwestern so that it could leave there until 10 o’clock p. m.: that on its departure the employé went at once off duty; that the operator knew about 5 o’clock p. m. that the train was late; that Ishpeming is a daytime station, and there are no other operators there in the employ of the defendant.”
Delays in the arrival and departure of trains are of frequent occurrence and are usual incidents in the ordinary operation of railroads. The fact that the defendant received the through train in question from another railroad is of no consequence. Delays in the departure
“A carnival company was loading its stuff in Norway for removal to Green Bay, Wis. Some of its employes were intoxicated and ran a wagon off a flat car which caused a long delay in the train’s departure. On account of physical conditions, this train was of necessity loaded on one of the main lines, and it was necessary to clear said line as soon as possible. The assistant superintendent was on- the ground and directed the employé to stay as he did to assist in getting orders for that train. The carnival company had been in Norway several days and was due to leave there at 9 o’clock of the night of Sunday, the 21st. The regular assigned hours for which the employé was regularly paid, including meal hours, were from 7 a. m. to 7 p. m. and the employé was paid overtime from 7 to 12 p. m.”
It thus appears that the accident which caused the delay in the departure of the circus train occurred a considerable time before the expiration of the period during which the operator might lawfully have worked. He had been continuously on duty since 7 o’clock in the morning, and the train was not due to leave until 9 o’clock at night. There is no showing that another operator could'not have been procured. Accidents of this character often happen and are to be expected. They furnish neither justification nor excuse for a violation of a remedial statute like the one under consideration. United States v. Southern Pac. Ry. Co., 209 Fed. 562, 126 C. C. A. 384.
Judgment will be entered in favor of the plaintiff and against the defendant for the sum of $100 upon each count of the declaration. Plaintiff will recover costs of suit to be taxed.