163 F. 519 | 8th Cir. | 1908
The matter here in controversy is the sufficiency of the complaint in a civil action to recover penalties under the safety appliance law of Congress. Act March 2, 1893, c. 196, 27 Stat. 531; Act April 1, 1896, c. 87, 29 Stat. 85 (U. S. Comp. St. 1901, p. 3174) amended by Act March 2, 1903, c. 976, 32 Stat. 913 (U. S. Comp. St. Supp. 1907, p. 885). There are four counts in the complaint, each charging a distinct hauling of a car in moving interstate traffic when one of the couplers witli which it theretofore had been properly equipped was out of repair and inoperative. In the District Court all the counts were held insufficient upon demurrer. 'I'he particular reason for the ruling is not disclosed, hut in support of it the defendant makes several objections to the
The third objection is that there is no allegation of any failure on the part of the defendant to exercise reasonable care in maintaining the coupler in operative condition. It must also fail, because the duty which the statute imposes upon a railroad company, in that regard is not qualified by the common-law rule of reasonable care, but is absolute, as has been recently and authoritatively settled in St. Louis, Iron Mountain & Southern Ry. Co. v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061. See, also. United States v. Atchison, Topeka & Santa Fe Ry. Co. (C. C. A.) 163 Fed. 517.
The last objection is that there is no sufficient allegation of a hauling of the car. It must share the fate of the others. The statute inhibits a hauling “in moving interstate traffic,” and the complaint, taking the second count as an illustration, alleges that the defendant “hauled over its line of railroad one car, to wit, Pere Marquette 41,918, used in moving interstate traffic to wit, bullion consigned from Murray, in the state of Utah, to-New York Harbor, in the state of New York,” and “hauled said car, with said interstate traffic, over its line of railroad out of its yards at Minturn, in the state of Colorado, in an easterly direction, when” one of the couplers thereon was out of repair and inoperative, as before stated. The criticism made of this allegation is that it does not specify how far the hauling was continued, or its purpose, and is silent respecting any actual use of the defective coupler ; but the answer to this is that the allegation does sufficiently show an actual and substantial hauling in moving interstate traffic, and that, this being so, it is immaterial, under the statute, how far the hauling was continued or whether there was any actual use of the defective coupler.
As the objections made to the complaint are untenable, and as none other is perceived by us, the judgment is reversed with a direction to overrule the demurrer and to take such further proceedings as may be agreeable to law.