BAKER, Circuit Judge
(after stating the facts as above). [1] By subsequently amending its complaint plaintiff waived its exception to the ruling that required the amendment; and if the record were otherwise free from error, we should not take up this question of pleading. But since a new trial must be ordered on account of errors duly preserved for review, we deem it proper to put plaintiff in position to move the trial court to strike .out the amendment.
[2] The principle (for the rule is not a mere artificiality) is this; If a statute puts an exception or limitation into the definition of duty, then a plaintiff, counting on a breach of the duty, must plead and prove the negative of the exception or limitation. Example: A statute requires a railroad to maintain fences along its right of way except at highway crossings and within the limits of cities and towns. Plaintiff, damaged by reason of a break in the fence, must plead and prove, in *633•order to establish a failure in duty, that the break in the fence existed outside of highway crossings and the limits of cities and towns. If, however, a statute gives a general definition of duty and then subsequently provides that a violator shall not be liable under such and such circumstances, plaintiff need plead and prove no more than the violation of the duty as defined, and defendant must plead and prove the circumstances that save him from liability. Example: A railroad fencing statute in the same words as above, which then adds that the statute shall not apply in any case of casualty or unavoidable accident or act of God unless the railroad has failed to use diligence in making repairs after actual or constructive notice of the break. Under such a statute, plaintiff must plead and prove, as before, the negative of the limitation in the definition, but not the negative of all possible legal excuses; if any such exists, it must be pleaded and proven as a defense against the consequences of the violation of the defined duty. As the proviso in the hours of service statute is not an exception or limitation in the definition of duty, but only subsequently affords certain exemptions from liability for violations of the defined duty, the court erred in requiring plaintiff to amend its complaint by negativing all possible legal excuses for the violations that were duly set forth. Teel v. Fonda, 4 Johns. (N. Y.) 304; Hart v. Cleis, 8 Johns. (N. Y.) 41; Smith v. U. S., Fed. Cas. No. 13,122; McGear v. Woodruff, 33 N. J. Law, 213, and cases cited; Chicago, B. & Q. Rld. v. Carter, 20 Ill. 391.
[3-5] To protect the lives of employés and of the traveling public against accidents due to loss of efficiency from overwork was the purpose of limiting the hours of continuous service. Actions for violations are civil; and the statute, in view of its purpose, should be liberally construed to accomplish the intended cure. If affirmative defenses are pleaded, the proof should bring the case clearly within the letter as well as within the spirit of the proviso. U. S. v. Ill. Centr. Rid. (D. C.) 180 F. 630" court="N.D. Iowa" date_filed="1910-06-23" href="https://app.midpage.ai/document/united-states-v-illinois-cent-r-8775954?utm_source=webapp" opinion_id="8775954">180 Fed. 630; U. S. v. Kansas City So. Rld. (D. C.) 189 F. 471" court="W.D. Ark." date_filed="1911-07-03" href="https://app.midpage.ai/document/united-states-v-kansas-city-southern-ry-co-8780085?utm_source=webapp" opinion_id="8780085">189 Fed. 471; U. S. v. Denver & R. G. Rld. (D. C.) 197 F. 629" court="D.N.M." date_filed="1912-05-01" href="https://app.midpage.ai/document/united-states-v-denver--r-g-r-8783931?utm_source=webapp" opinion_id="8783931">197 Fed. 629; U. S. v. Kansas City So. Rld., 202 F. 828" court="8th Cir." date_filed="1913-01-24" href="https://app.midpage.ai/document/united-states-v-kansas-city-southern-ry-co-8786827?utm_source=webapp" opinion_id="8786827">202 Fed. 828, 121 C. C. A. 136; U. S. v. Great Northern Rld. (D. C.) 206 F. 838" court="D. Idaho" date_filed="1913-07-09" href="https://app.midpage.ai/document/united-states-v-great-northern-ry-co-8788879?utm_source=webapp" opinion_id="8788879">206 Fed. 838; U. S. v. Mo. Pac. Rld. (D. C.) 206 F. 847" court="D. Kan." date_filed="1913-03-24" href="https://app.midpage.ai/document/united-states-v-missouri-pac-ry-co-8788883?utm_source=webapp" opinion_id="8788883">206 Fed. 847; Great Northern Rld. v. U. S., 211 F. 309" court="9th Cir." date_filed="1914-02-24" href="https://app.midpage.ai/document/great-northern-ry-co-v-united-states-8791094?utm_source=webapp" opinion_id="8791094">211 Fed. 309, 127 C. C. A. 595; U. S. v. Atchison, T. & S. F. Rld. (D. C.) 212 F. 1000" court="D. Ariz." date_filed="1914-04-10" href="https://app.midpage.ai/document/united-states-v-atchison-t--s-f-ry-co-8791627?utm_source=webapp" opinion_id="8791627">212 Fed. 1000.
[6] A consideration of the proviso will furnish a basis for determining the other assignments of error. If the view that was acted upon by the court throughout the trial is correct, namely, that “casualty” means any occurrence or happening, whether unavoidable or avoidable by the exercise of due care on the part of the railroad, and therefore excuses all delays except those knowingly and willfully caused by the railroad, then it seems clear to us that Congress stands convicted •of having followed up “casualty” with a series of meaningless and purposeless expressions. But, if the result can fairly be reached, courts must ascribe a meaning and a purpose to every part of a statute. Rooking at the proviso as a whole, and with the intent of leaving, if possible, vitality in all its parts, we conceive that Congress said to the railroads: You need not pay penalties for violations in the following instances: Act of God. You are excusable for delay caused by violence of nature *634in which no human agency participates by act or omission. For example, a washout due to an unprecedented flood that was not and could not reasonably have been anticipated. Unavoidable accident. You are excusable if, at the time and place of the accident that cáused the delay, you, through your employes, were in the exercise of due care. For example, a switchtender falls dead at an open switch and a collision immediately follows without any one’s fault. Last clause of the proviso, explanatory of unavoidable accident. But you are not excusable if, at the time a train leaves a terminal, you, through your inspectors, either knew or by the exercise of due care might have foreseen a cause that would be likely to produce an accident and consequent delay. For example, incompetent trainmen or defective or inefficient drawbars or air hose, particularly if you had notice of a succession of accidents due to those causes. Casualty (which must differ from the other defenses and must not be so broad as to deprive them of meaning and use). You are excusable for delay from an occurrence or happening due entirely to an outside human agency. For example, your train is overturned by a train of another railroad at a crossing by reason of the other road’s trainmen’s disobedience of the interlock signals. And finally, if you cannot establish one of these defenses by a fair preponderance of the evidence, you must pay the penalty for keeping your employés on duty an excessive time.
Error was therefore committed in giving, and in refusing to give, the instructions quoted in the statement of the case.
[7] Excuse for the delays in this case as shown by the evidence could only come under the head of unavoidable accident. Against defendant’s claim of excuse plaintiff was entitled to prove, as it offered, that during several months preceding the accidents in question instances of like trouble were of daily occurrence. A defendant of course is not to be convicted of a particular violation by showing that at other times he committed other violations. And defendant in this case would be entitled to an instruction limiting the purpose and effect of this evidence. But it was clearly admissible “as tending to show a negligent habit of the officers and agents of the railroad company.” Grand Trunk Rld. v. Richardson, 91 U.S. 454" court="SCOTUS" date_filed="1876-01-17" href="https://app.midpage.ai/document/grand-trunk-railroad-v-richardson-89200?utm_source=webapp" opinion_id="89200">91 U. S. 454, 470 (23 L. Ed. 356); District of Columbia v. Armes, 107 U.S. 519" court="SCOTUS" date_filed="1883-05-18" href="https://app.midpage.ai/document/district-of-columbia-v-armes-90786?utm_source=webapp" opinion_id="90786">107 U. S. 519, 2 Sup. Ct. 840, 27 L. Ed. 618" court="SCOTUS" date_filed="1883-05-18" href="https://app.midpage.ai/document/district-of-columbia-v-armes-90786?utm_source=webapp" opinion_id="90786">27 L. Ed. 618; Cleveland, etc., Rld. v. Newell, 104 Ind. 264" court="Ind." date_filed="1885-12-12" href="https://app.midpage.ai/document/cleveland-columbus-cincinnati--indianapolis-railroad-v-newell-7048122?utm_source=webapp" opinion_id="7048122">104 Ind. 264, 3 N. E. 836, 54 Am. Rep. 312; Rockford Gas Co. v. Ernst, 68 Ill. App. 300" court="Ill. App. Ct." date_filed="1896-12-09" href="https://app.midpage.ai/document/rockford-gas-light--coke-co-v-ernst-6997817?utm_source=webapp" opinion_id="6997817">68 Ill. App. 300; 29 Cyc. 611, 612. Phillips v. Town of Willow, 70 Wis. 6, 34 N. W. 731, 5. Am. St. Rep. 114, relied on by defendant as holding to the contrary, is distinguishable because the court notes that the evidence of the prior accident was offered, not to show notice of defect, but to prove that the stone (the claimed defect) was in the traveled part of the highway.
On the evidence in the record the case was one to be submitted to the jury under proper instructions.
The judgment is reversed for further proceedings not inconsistent with this opinion.