244 F. 38 | 8th Cir. | 1917
Lead Opinion
The United States bi ought this action against the Railway Company to recover penalties for violations of the Hours of Service Act (34 Stat. 1415). The complaint in 12 counts charged that the Railway Company permitted certain operators at Arlington, Boone, Sheridan Lake, and Haswell, Colo., to be and remain on duty for longer hours than allowed by law in any 24-hour period.
The Railway Company answered each count of the complaint except the fourth and ninth by pleading facts which it claimed consti
The questions for consideration, therefore, are as follows: (a) Did the court err in sustaining the demurrer of the United States to the Railway Company’s plea of emergency to the first, second, and sixth counts of the complaint? (b) Did the court err in overruling the demurrer of the United States to the plea of emergency contained in the answer of the Railway Company to the fifth count of the complaint? (c) Did the court err in overruling the demurrer to the defense pleaded in counts 3, 4, 5, 7, 8, 9, 10, 11, and 12, to the effect that the 24-hour period within which a violation of the statute is alleged should be counted from the time the employé first goes on duty for his day’s work. No error is assigned by the Railway Company as to the ruling of the court on the defense of emergency contained in thé answer to counts 3, 7, 8, 10, 11, and 12, as judgment’was rendered in its favor on these counts by reason of the other defense pleaded.
“Defendant, during the twenty-four hour period beginning at the hour of 3:00 o’clock p. m., on September 6, 1914, at its office and station at Sheridan Lake, in the state of Colorado, and within the jurisdiction of- this court, required and permitted its certain telegraph operator and employs, to wit, AY. I1. Coughlin, to be and remain on duty for a longer period than nine hours in said twenty-four hour period, to wit, from said hour of 3:00 o’clock p. m. on said date to the hour of 5:10 o’clock p. m. on said date, and from the hour of 7:00 o’clock a. m. on September 7, 1914, to the hour of 3:00- o’clock p. m. on said date.”
Answer:
“Further answering the third count or cause of action in said complaint, defendant says that the station Sheridan Lake, mentioned therein, is what is known as a two-man station, and that the hours of service of employSs thereat at the time in question were as follows: Agent’s hours from 7:00 a. m. to 4:00 p. m.; operator’s hours from 7:45 p. m. to 4:45 a. m. Office closed from 4:00 p. m. to 7:45 p. m. and from 4:45 a. m. to 7:00 a. m.
“That AY. F. Coughlin, the employé mentioned in said count, was the agent at said station, and went on duty each day at the hour of seven o’clock a. m., and did so on September 6, 1914, and was on duty until the hour of 1:30 o’clock p. m. on said day, when he was definitely excused and entirely relieved from duty until the hour of 3:00 o’clock p. m. on said day, when he*41 returned to work and remained on duty until tlie hour of 5:10 o’clock p. m on said day. a tier which time he was not on duty again until 7:00 o’clock a. m. on September 7, 1914, when he went on duty in regular course and remained on duty until 4:00 o’clock p. m. on said last-mentioned day, and defendant says that the twenty-four hour period referred to in the act relied on by plaintiff, so far as said .agent was concerned, began on September 6, 1914, at the hour of 7:00 o’clock a. m., and not at the hour of 3:00 o’clock p. m. on said day, and that said agent was not on duty more than nine hours during the twenty-four hour period beginning at 7:00 o’clock a. m. on September 6, 1914.”
The proviso of section 2 of the Hours of Service Act reads as follows :
“Provided, that no operator, train dispatcher, or other employé 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 tor a longer period than nine hours in any twenty-four 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 the daytime, except in case of emergency, when the employés named in this proviso may he permitted to be and remain on duty for lour additional hours in a twenty-four hour period on not exceeding throe days in any week.”
In the case of the United States v. A. T. & S. F. Ry. Co., 220 U. S. 37, 31 Sup. Ct. 362, 55 L. Ed. 361, the United States contended that when 9 hours have passed from the moment of beginning work the statute allows no more labor within the 24 hours from the same time, even though the 9 hours have not all been spent in work. The Supreme Court refused to sustain this contention, and decided that a man employed for 6 hours, and then, after an interval, for 3, in the same 24, is not employed for a longer period than 9 hours. It, therefore, was permissible for the Railway Company to divide the hours of service provided those hours of service did not exceed 9 hours in any 24-hour period. As against the demurrer the facts stated in the defense to the third count above set forth are of course admitted. It is therefore admitted that W. E. Coughlin, the employé mentioned in the third count, “went on duty each day at the hour of 7 o’clock a. m., and did so on September 6, 1914, and was on duty until the hour of 1:3Q o’clock p. m. on said day, when he was definitely excused and entirely relieved from duty until the hour of 3 o’clock p. m. on said day, when he returned to work and remained on duty until the hour of 5:10 o’clock p. m. on said day, after which time he was not on duty again until 7 o’clock a. m. on September 7, 1914, when he went on duty in regular course and remained on duty until 4 o’clock p. m. on said last-mentioned day.”
These facts standing admitted, the Railway Company claims that the 24-hour period, so far as this employé was concerned, began on September 6, 1914, at the hour of 7 o’clock a. m., and not at the hour of 3 o’clock p. m., and that said employé was therefore not on duty more than 9 hours during the 24-hour period beginning at 7 o’clock a. m. on September 6, 1914.
• Referring now to the charge against the Railway Company as to count 3, we find it alleged that during the 24-hour period, beginning at the hour of 3 o’clock p. m. on September 6, 1914, at the office of the Railway Company at Sheridan Rake, Colo., said Railway Company
The position of the United States does not seem to us to be fair to the Railway Company, and it must be conceded that nothing but fairness is desired in the enforcement of the law. The Railway Company is the party which must obey the law. It ought in all fairness to know before the employé is permitted to work just what is being done with reference to hours of service, so that the law may not be violated. It, therefore, by agreement with its employé, fixes the time that the hours of service shall commence and when they shall end. This being done, an inspector in' the employ of the United States appears, and, looking over the record of the hours of service, arbitrarily and contrary to the agreement between the Railway Company and the employé, establishes, after the service has been rendered, a different time for the commencement of the 24-liour period, and, by combining certain isolated hours of service performed on different days, seeks to show a violation of the law. We are of the opinion that the law or justice will not permit this to be done.
It is claimed that any construction of the law which will permit the Railway Company to do that which is alleged to have been done in the. answer to count 3 would nullify the statute. To show that this is so, it is contended that a 9-hour operator might be required to work for 17 hours without rest. For instance, taking the employé described in count 3 for illustration, it is claimed that he could be worked from 7 a. m. to 8 a. m. on September 6th, and then be excused from duty until 11 p. m. of the same day, and then be required to work through until 7 o’clock the next morning, when he again would be obliged to begin his regular day’s work and work through until 4 p. m. that day. In view of the fact that no instance of this kind is shown to have ever occurred, and the improbability that it will ever occur, we may say, in the language of the Supreme Court in the case above cited, “This hardly is ¿ practical suggestion.” If any such abuse of the law shall happen, Congress undoubtedly will regulate the matter by proper legislation.
The employé mentioned in the third count had an unbroken rest between the time when he finally quit work on September 6th and the time when he again resumed his duties on September 7th of 13 hours and 50 minutes, so that it appears that he was not overworked or deprived of a proper period of rest. In using the expression “any
In the Congressional Record for March 3, 1907, vol. 41, p. 4543, it appears that while Senator Patterson was speaking on this same statute he asked Senator Flint, who was acting as spokesman for the Conference Committee having the hill in charge, {he following questions: “Is the twenty-four hour period to be fixed arbitrarily by the company? Is the twenty-four hour period a calendar day? Is the twenty-four hour period to commence with each individual workman as he enters upon the duties of his twenty-four hours of labor?” Senator Flint answered the questions as follows: “The last statement of the Senator is the correct statement.” We are of the opinion that the trial judge did not err in his ruling upon this question.
The Railway Company, to justify this excess of service of more than 13 hours during the 24-hour period, alleges that there had been delivered to the Railway Company at Arlington for transportation over its line of railway and connecting lines to Denver, Colo., three carloads of live stock, which live stock had been loaded on the cars of the Railway Company early on the morning of the day mentioned in the first count, and which the dispatcher intended to have picked, up and transported in a train passing through Arlington about 10 o’clock a. m. on said day, but said dispatcher, through inadvertence and oversight, failed to give orders to said train to pick up said cars of live stock, and in order to avoid holding said live stock at Arlington until the following day, and thus cause loss and damage to the shipper and to the Railway Company, said dispatcher ordered the next following train to pick up said cars of live stock and transport the same; that said cattle were unloaded from said cars awaiting the arrival of said next following train, which in ordinary course would have arrived and picked up said live stock and would have left Ar
“Further answering the second count or cause of action of said complaint, defendant says that the station of Boone mentioned therein was what is known as a two-man station, the agent’s hours being from 6 o’clock a. m. to 3 o’clock p. m., and the operator’s hours from 3 o’clock p. m. to 12 o’clock midnight, and the office under ordinary circumstances being closed from midnight until 6 o’clock a. m.; that on September 2, 1914, the telegraph operator and employé mentioned in said count was on duty from 3 o’clock p. m. until midnight, and was also on duty from 1:30 o’clock a. m. on September 3, 1914, to 3:30 o’clock a. m. on said date, but defendant says that-an emergency existed justifying said operator being on duty for a period of 11 hours in the 24-hour period beginning with 3 o’clock p. m. on September 2, 1914, in that defendant’s dispatcher in charge of dispatching trains on the division of defendant’s railroad from Pueblo, Colo., to Hoisington, Kan., had been misinformed as to the time of arrival of a train load of silk known as a silk special, to be delivered by the Denver & Bio Grande Railroad Company to this defendant at Pueblo for transportation over defendant’s line of railroad east, and that said silk special arrived at Pueblo at 2:45 o’clock a. m. on September 3, 1914, instead of two hours later, as it had been reported to defendant’s dispatcher that said silk special would arrive and be delivered to this defendant; that the transportation of silk is very profitable to the carriers handling same, and in order to secure said business it is necessary to handle said silk specials with great expedition and promptness and to lose no time in the transportation thereof; that the danger of theft in handling such shipments is very great, making it inadvisable to permit same to remain at terminals or elsewhere longer than is absolutely necessary to make up trains, and that, to avoid a delay of at least two hours to said silk special at Pueblo, it was necessary for said dispatcher to call said operator on duty at 1:30 o’clock a. m. on September 3, 1914, in order to have said operator hold another train at his said station and receive orders in reference thereto, and thus permit the prompt moving of said silk special, and that said operator was held no longer than was absolutely necessary for this purpose."
“Further answering said fifth count or cause of action, defendant says that if the twenty-four hours beginning with the hour of 3:00 o’clock p. m. on September 28, 1914, constituted a twenty-four hour period within the meaning of the act referred to, an emergency existed justifying the employs'! mentioned in said cause of action being on duty for such time in excess of nine hours as he was on duty during that period, in that seven cars of freight train known as ‘Extra Bast 1280’ were derailed at mile post 416, about one mile west of Bay, a station on the line of defendant east of Sheridan Bake, on account of a drawbar pulling out of car O. & N. W. 73908 in said train, and falling on the track, and notwithstanding the diligent efforts of the defendant, the track was not cleaved until 4:15 p. m. on said last-mentioned day, as a result of which passenger train No. 1 west-bound to Sheridan Bake and points west thereof was greatly delayed, and could not and did not reach Sheridan Bake until 5:4» o’clock p. m. on said last-mentioned day, though but for said derailment said train No. 1 would have reached Sheridan Lake before the hour of 4 o’clock p. m. of said day, but on account of said derailment, and said train No. 1 being late as aforesaid, it was necessary to hold said employé on duty after the hour of 4:00 o’clock p. m., when he would otherwise have been relieved from duty for the twenty-four hour period beginning at 7:00 o’clock a. m. on September 28, 1914, and to retain said employé on duty until the hour of 5:40 o’clock p. m. on said day, when said train No. 1 arrived at Sheridan Bake, for the purpose of handling United States mail to and from said train and caring for passengers.”
We are of the opinion that the facts above stated do constitute an emergency within the meaning of the law.
“Further answering the sixth count or cause of action in said complaint, defendant says that an emergency existed justifying the employé mentioned in said count being on duty for any time for which he was on duty in excess of nine hours during the twenty-four hour period in question, in that passenger train No. 3 westbound, which was due to and did arrive at Sheridan Lake at 3:15 o’clock a. m. on October 10, 1914, and which was due to depart therefrom at said last-mentioned hour, was delayed at said station owing to broken packing rings in one of the cylinders of engine No. 1247 which was hauling said train, which rendered said engine incapable of moving out of Sheridan Lake, which necessitated sending a relief engine for said train from Horace, Kansas, which was the nearest station at which said relief engine could be secured, which relief engine did not reach Sheridan Bake until 5:20 o’clock a. in.' on said last-mentioned day, and which necessitated retaining said em-ployé on duty after the hour when he would ordinarily have been released, to wit, 4:45 o’clock a. m. on said day, and until the arrival of said relief engine for the purpose of dispatching said train No. 3 out of said station.”
In our opinion the facts above pleaded do not constitute an emergency within the meaning of the law. In United States v. Southern Pacific Co., 209 Fed. 562, 126 C. C. A. 384, we decided that with reference to the question of emergency each case must depend upon its own facts. While we may consider the dictionary as to the meaning of the word “emergency,” we cannot wholly be guided by that definition in the practical operation of a railroad. The courts must de
No error appearing in the record, the judgment below is affirmed.
Dissenting Opinion
(dissenting).
I feel constrained to dissent from that portion of the judgment and opinion which holds that the 24-hour period contemplated by the statute does not mean “any 24-hour period.” The statute is highly remedial, designed to protect the lives and property of the employés and of the public from casualties occasioned through lack of vigilance of employés caused by overwork.
That construction should be adopted which will best preserve that object. The illustration in the above opinion of the court demonstrates that, under the construction contended for by the Railway Company, an employé whom the statute determined it would be unsafe to keep employed longer than 9 hours out of 24 could be employed 17 hours uninterruptedly -yvithout violating the law. In my judgment, the objections to a construction permitting such overwork are not met by the view that it is improbable of occurrence. The particular illustration certainly reveals the possibilities. The very instances involved in this case show the probabilities of conditions differing only in degree, but not in kind, from the illustration.
I agree with the court that one of the considerations to be borne in mind in construing the law is fairness to the railway in the practical operation of its business. The law was not intended to burden the carrier any further than necessary to properly effectuate its main object. On the other hand, the railway must bear such burdens as are intended to be placed upon it by the statute, and the prime one of those' is to so arrange the hours of its employés that, outside of the excepted instances named in the statute, none of them shall, under any circumstances, be employed exceeding the stated number of hours, as the statute reads, “in any twenty-four hour period.”
