206 F. 838 | D. Idaho | 1913
The action is brought to recover the penalty prescribed in what is popularly known as the “Hours of Service Act” (Act March 4, 1907, c. 2939, 34 Stat. 1415 [U. S. Comp. St. Supp. 1911, p. 1321J). The act is entitled “An act to promote the safety of employes and travelers upon railroads by limiting the hours of service of employés thereon.” The term “employes” is therein defined as meaning “persons actually engaged in or connected with the movement of any train” ; and common carriers are thereby prohibited from requiring or permitting any employe to remain on duty for a longer period than 16 consecutive hours. The government charges that in the year 1912 the defendant permitted one of its locomotive firemen, Ed. Burgen, to remain on duty continuously from 6 o’clock a. m. of July 10th to 6 o’clock a. tn. of July 11th, upon a train running from Hillyard, in the state of Washington, to La Clede, in the state of Idaho.
From the written stipulation of facts upon which the cause has been submitted, it appears that the defendant is a common carrier engaged in interstate commerce by railroad in and through the states of Washington, Idaho, and Montana. Upon July 10, 1912, it directed Burgen, one of its locomotive firemen, to fire its locomotive engine which was to pull, and did pull, a freight train carrying commodities moving in interstate commerce, from Hillyard to Ua Clede, over what is known as the Spokane division of the defendant’s railway system. He began firing and the train left the station of Hillyard at 6 o’clock a. m. on July 10th, and he continued to discharge his duties as fireman while the train was moving to Ua Clede, at which point it arrived at 9:59 o’clock p. m. of the same day, a period of 15 hours and 59 minutes. Upon the arrival of the train at Ua Clede it was run into the siding or side track leading out of and into the main line of the defendant’s main track, and thereupon it occupied only the side track, leaving the main line clear for the unobstructed movement of trains approaching and passing through Ua Clede station. The switches at each end of the side track were thereupon locked, and thereafter remained locked in such position that the train could not leave the side track, and no other train could pass from the main line to and upon the side track. The brakes were set so that neither the train nor the engine could move without first releasing the brakes. After the train was thus “tied up,” as the process is called, at 10:30 o’clock p. m. on July 10th, it remained stationary on the siding, and no member of its crew, including Burgen, received or was obliged or permitted to receive any order with reference to the future movement of the train or engine. Burgen, however, was permitted and required to remain upon the engine continuously thereafter, until 6 o’clock the next morning, during which time he was on duty as an engine watchman, charged
From this abstract of the facts, as stipulated, it appears that Burgen 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 Burg-en’s service as engine watchman was not directly or indirectly connected with the movement of the train, he was primarily a locomotive fireman, and, as such, an “employé,” as defined by the act, and was therefore subject to its operation. The defendant takes the position that by temporarily turning aside from his regular duty the employé becomes, and for the time being remains, exempt; but to this view I am unable to assent. While the statute is susceptible to such a construction, its prohibition is not, in terms at least, limited to service having to do directly or indirectly with the movement of trains. The language of the second section is:
“It snail be unlawful » * * to permit any employs subject to this act to be or remain on duty for a longer period than 16 consecutive hours.”
There is here no express limitation of the operation of the act to a specific duty or class of duties; the limitation is rather to a class of employés, namely, those “actually engaged in or connected with the movement” of trains. The act must therefore be construed, and being remedial in its nature it must receive such construction as will give to its general purpose reasonable effect. United States v. Kansas City S. Ry. Co. (D. C.) 189 Fed. 471; United States v. Missouri Pacific Ry. Co., 206 Fed. 847 (decided by District Court for District of Kansas March 22, 1913).
Now the defendant’s position is that the time Burgen was engaged in watching the engine is not to be counted, because, during , such period, he was performing a duty having no connection with the movement of any train. Plainly in that view the test, and the only test, is the relation of the specific service to the movement of trains. Log•ically, therefore, it is wholly immaterial whether the service as watch,man follows or precedes the service as fireman, or intervenes. It has ,no more connection with the movement of trains in the one case than in the other, and if want of such connection operates to- exclude it
As to the penalty, I entertain no doubt that the defendant acted in good faith, upon the belief that it was not violating the law, and it is therefore thought that a fine of $100 will satisfy the ends of justice. Judgment will be entered for that amount.