216 F. 702 | N.D.N.Y. | 1914
The defendant, the New York, Ontario & Western Railway Company, operates a railroad from. Weehawken, N. J., to Oswego, N. Y., with a division headquarters at the city of Norwich, N. Y., where at the time in question it employed train dispatchers and also assistants, or copy operators, so called, both day and night. It was the duty of these copy operators to copy the records of the movements of trains and act generally in a clerical capacity for the dispatcher, but two of them were in fact competent in emergencies to act as dispatcher. However, it was no part of the duty of either of them, when or while acting as copy operator, to direct or control the movement of trains.
On November 14, 1912, and July 22, 1913, and' at all intermediate dates, the defendant had three regular train dispatchers in its employ at the Norwich office, and also three assistants or copy operators. The hours of service of these dispatchers, or “tricks,” as they are called, at the times in question, were as follows: Dispatcher Marshall, from 7 a. m. to 3 p. m.; Dispatcher Doody, from 3 p. m. to 11 p. m.; Dispatcher Brookins, from lip. m. to 7 a. m. On the dates in question one Towner was copy operator, and his trick, or hours of service, was from 8 a. m. to 4 p. m. At midnight on each of the occasions in question he had been off duty 8 hours.
In the evening of November 14, 1912, the mother of Dispatcher Brookins, and who was a member of his household, died suddenly and unexpectedly. In consequence of such death Brookins, who was to go on duty and relieve Doody at 11 p. m. reported his inability to do so.
On the evening of July 22, 1913, Dispatcher Brookins, whose hours of duty commenced at 11 p. m., was taken ill, suddenly and unexpectedly, a'nd, as his illness continued and increased, he was unable to report for duty, and thereupon in this emergency the superintendent continued Dispatcher Doody on duty until 12 o’clock midnight, as before, when Copy Operator Towner,’the only available man, and who had been off duty since .4 o’clock p. m., was called to relieve Doody, which he did. Towner served.as dispatcher until 7 a. m., when he was relieved by Marshall as before.
So far as disclosed by the evidence, there had been no previous time when these dispatchers and their copy operators had not been able to properly fill and fully perform the duties of their positions without the necessity of overtime work. During all of this time the defendant had in its employ at this office, or within call, operators qualified to take the place of copy operators who should be called upon to discharge the duties of dispatchers. Upon neither of the occasions aforesaid did Operator Towner act as an operator, train dispatcher, or other em-ployé, who by the use of the telephone and telegraph dispatches reported, transmitted, received, or delivered orders pertaining to or affecting train movements, for a longer period than 9 hours in the 24-hour period; but upon each occasion such operator reported, transmitted, received, or delivered orders pertaining to or affecting train movements only from 12 o’clock midnight until 7 o’clock a. m.
“Provided that the provisions of this act shall not apply in case of casualty, or unavoidable accident, or the act of God.”
As to the transaction of July 22, 1913, the sudden and unexpected sickness of Brookins absolutely disabled him. It was not an accident, within the commonly accepted definition of the word. Was it a casualty? Brookins was a part of the railroad itself, in that he was one of its employés engaged in the running and operation of its trains. Without Brookins and others like him the road could not operate, and hence, when he broke down suddenly and unexpectedly, the railroad itself, through its operating forces, was acted upon. If Brookins, on his way to take his trick, had been run over by an automobile and killed or seriously injured, without fault on his part, so as to disable him, there would have occurred, not only an accident (unavoidable so far as he
“Happening or coming to pass without apparent cause, without design on the part of the agent, in an unaccountable manner, or as a mere coincidence or accident; coming by chance; accidental; fortuitous; indeterminate; as a casual encounter.”
And “a casual” is one who is admitted into a hospital or a workhouse at irregular and uncertain periods, or because of some accident. “Casualty” is defined by the same authority as:
“Chance, or what happens by chance; accident; contingency. (2) An unfortunate chance or accident, especially one resulting in bodily injury or death. Specifically, disability or loss of life in battle or military service from wounds,” etc.
Here, as to July 22, 1913, Brookins without fault, at home, resting, and preparing to take his trick at 11 p. m., was taken sick without fault on his part and disabled. It was unforeseen, and unexpected, and unusual. It happened and began to be without design. It was a fortuitous event, if this sickness was the result of some act of Brookins, as overeating, or eating impure food, or exposure, it was an event happening without the concurrence of his will, or that of the cook or any other person. The Century Dictionary says:
“Accident. Tn general, anything that happens or begins to be without design, or as an unforeseen effect; that which falls out by chance; a fortuitous event or circumstance. (2) Specifically, an undesirable or unfortunate happening ; an undesigned harm or injury; a casualty or mishap. In legal use, an accident is (a) an event happening without the concurrence of the will of the person by whose agency it was caused.”
Sudden illness has been stated to be an act of God. Gleeson v. Virginia Midland Railroad Co., 140 U. S. 435-439, 11 Sup. Ct. 859, 861, 35 L. Ed. 458. It was not so decided as the precise point was not involved; but the opinion of the court by Mr. Justice Lamar said with evident approval:
“Extraordinary floods, storms of unusual violence, sudden tempests, severe frosts, great droughts, lightnings, earthquakes, sudden deaths and illnesses, have been held to be ‘acts of God.’ ”
In Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393, it was held that:
“An unavoidable accident is synonymous with inevitable, and means any accident produced by physical causes which are irresistible, such as lightning, storms, perils of the sea, earthquakes, inundations, sudden death, or illness.”
In The Majestic, 166 U. S. 375, 386, 17 Sup. Ct. 597, 41 L. Ed. 1039, it was said that the “act of God” which would exempt one from liability is an act in which no man has any agency whatever. In Bullock v. White Star Steamship Co., 30 Wash. 448, 70 Pac. 1106, it was held that an “act of God” such as would relieve from thé performance of a contract must be such as a person of reasonable prudence and foresight could not have guarded against. In the case of lightnings, storms, earthquakes, and inundations, no man has any agency whatever so fax as their occurrence is concerned. In the case of illnesses, or even déáth it may he brought on by the willful act or willfully negligent act or acts
“The provisions of this act shaE not apply in ease of casualty, or unavoidable accident, or the act of God.”
“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 for 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 be permitted to be and remain on duty for four additional hours in a twenty-four hour period on not exceeding three days in any week”
■ — must be reasonably construed to effect the purpose of its enactment. If we read the words, “shall not apply in any case of casualty or unavoidable accident or the act of God,” as applicable whenever there is a sudden death in the household of the railroad employé (that of a relative, of course), the transaction of November 14, 1912, is within the proviso of the act, and the provisions of the act have no application whatever, and the complaint must be dismissed.
It must be conceded that the main purpose of the section quoted — ■ that part relating to train operators, who direct and control the movement of trains by telephone or telegraph — was to secure the presence of operators who are not overworked, tired out, sleepy, dull for want of sleep, etc., and thus secure, so far as such precautions can, the safety of the traveling public. It was not the purpose to compel a railroad
Is it necessary that the casualty should have been of a physical nature operating directly on the employé? Or that the unavoidable accident should have been to the employé directly, so as to physically disable him, or that the act of God should have struck or operated directly on such employe? If a father, with a wife and child, as he is about to leave his house to take his trick as dispatcher, sees them or either of them stricken with sudden and severe illness, or death, is not that a case of casualty, or of an act of God, such as would make the act regulating hours of labor inapplicable in case the employer found it necessary to do as was done here ? The father could go to the office of the company and take his trick, and neglect those at home; but the employer, if he knew the facts, would not permit, and the father’s thoughts would be at home, and not on his work. The same is true, to an extent, when death strikes the father or mother, a member of the household. It is hard to draw the line, and somewhat dangerous to the strict enforcement of the law, perhaps, to hold that a casualty, or an unavoidable accident, or an act of God not operating directly on the em-ployé or the employer, brings a case within the proviso of the act; but I think it the more just and reasonable to hold that it does, provided the employé by its operation is incapacitated from the proper performance of his duty, and the employer has done its duty in providing a reasonable number of employés for the duty. If the casualty, or accident, or act of God is such that it operates directly or indirectly on the employé performing a certain duty, and relied on by the employer to perform such duty, and thereby in fact incapacitates such employé from discharging that duty, and makes it necessary for the railroad company to tie up its trains or work a train dispatcher overtime, there being no negligence, it seems to me the Hours of Labor Act does not apply.
In this case there was no negligence on the part of the defendant railroad company. It had three regular dispatchers, and three assistants or copy dispatchers ready and competent to take their places, and at least two extra copy dispatchers able and competent to take the place
It is contended that he was not within the description of section 2 until he assumed the duty of operator at midnight. I do not think this contention can be sustained. Towner was an employé of the defendant in this line of work, but he acted as copy operator only, and was to do so continuously unless called upon to take the place of the regular operator, whose duties he- was qualified to perform in an emergency. He had been at work as copy operator for the 8 or 9 hours preceding 4 o’clock p. m., and he was then off 8 hours, and then he went on duty as regular operator or train dispatcher, and worked 8 hours, or until 7 a. m. I think Towner was within the reason and the spirit of the act. He could not within a given 24-hour period work 8 or 9 hours as copy operator, and later and within the same 24-hour period work 8 or 9 hours more as train dispatcher. T'he very object or purpose of the law would forbid this.
I think that on the other grounds stated the plaintiff has failed, and that defendant has established:
“1. That the requirement of Operator Towner to remain on duty for a longer period than 9 hours in the 24-hour period on November 14, 1912, was because of a casualty, or act of God, and the provisions of the federal Hours of Service Act prohibiting such employment did not apply.
*709 “2. That the requirement of Operator Towner to remain on duty for a longer period than 9 hours in the 24-hour period on July 22, 1913, was because of a casualty, unavoidable accident, or act of God, and the provisions of the federal Hours of Service Act prohibiting such employment did not apply.
“3. That the defendant is entitled to judgment dismissing the complaint”
There will be a judgment accordingly.