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kinds of rolling stock, whereas 'freight cars' is a specific designation of certain kinds of cars, and its meaning is not to be extended beyond the precise terms used. In the Johnson Case the court said: “Tested by context, subject-matter and object “any car" meant all kinds of cars running on the rails, including locomotives, and this fact is supported by the dictionary definitions and by many judicial decisions, some of them having been rendered in construction of this act.' We think, in view of the language of the act and its purpose, it was intended to include within the term 'freight cars' all cars used in the movement of freight, whether freight was actually stored in them or they were used for the purpose of moving the train, and that there is included therein the locomotive at the head of the train and the caboose at the other end. The evils to be remedied and the dangers to be averted were just as great and demanded legislation as much in the case of a locomotive as in the case of any car in the train. But all doubt is removed by Act March 2, 1903, c. 976, 32 Stat. 943, [110 Fed. Stat. Ann. 375), which amended the prior act, and enacted that its provisions and requirements relating to automatic couplers and heights of drawbars, etc., “shall be held to apply to all trains, locomotives, tenders, cars and similar vehicles used on any railroad engaged in interstate commerce.' In Southern Railway v. United States, 222 U. S. 20, the court said that the effect of this

amendment was to enlarge the scope of the prior act. Said the court: 'For these reasons it must be held that the original act, as enlarged by the amendatory one, is intended to embrace all locomotives, cars and similar vehicles used on any railroad which is a highway of interstate commerce."

Noncompliance with standard height. — In Atchison, T. & S. F. R. Co. v. United States, (C. C. A. 7th Cir. 1912) 198 Fed. 637, it. appeared that in a train used in interstate traffic the defendant had a car whose draw. bar was less than the standard height above the rails. This condition was observed by the government inspector 15 minutes before the train left the yard. The court said: “Violation of the statute is questioned on the ground that the condition resulted, not from any defect in the drawbar itself, or in its attachment to the frame of the car, but from the breaking of a king pin, whereby the frame to which the drawbar remained securely attached was lowered. But the statute (section 5) provides that ‘no cars, either loaded or unloaded, shall be used in interstate traffic which do not comply with the standard above provided for.' So it is immaterial whether the lowering was caused by the sagging of the drawbar from the frame or the sagging of the entire frame; and the resulting condition of noncompliance with the standard height would be as observable in the one case as in the other."

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The exception from the operation of this This amendment does not make it necesact of cars which are “used upon street rail- sary for a locomotive and tender to have an ways" includes only cars used solely on automatic coupler between them. Pennell street railways and does not apply to inter- v. Philadelphia & R. Ry. Co., (1914) 231 urban cars although they are run over the U. S. 675, 34 S. Ct. 220. tracks of a street railway proper, or to the The act as amended applies to Porto Rico. cars of a street railway that are also used - American R. Co. of Porto Rico v. Didrick

an interurban line. United States v. sen (1913) 227 U. S. 145, 33 S. Ct. 224, Spokane & I. E. R. Co. (E. D. Wash. 1912) 57 U. S. (L. ed.) 456, wherein the court 206 Fed. 988.

said: “Though for all purposes the Island


of Porto Rico has not been fully incorporated into the United States, it obviously is not foreign territory, nor its citizens aliens. Gonzales v. Williams, (1904) 192 U. S. 1, 15. Its organization is in most essential that of those political entities known as territories. It has a territorial legislature

and a territorial system of courts. By the fourteenth section of the Foraker Act of April 12, 1900, 31 Stat. 77, 80, c. 191, 'the statute laws of the United States not locally inapplicable

have the same force and effect in Porto Rico as in the United States, except the revenue law.”

1909 Supp., p. 581, sec. 1.

The constitutionality of this act has been conclusively settled. United States v. Kansas City Southern Ry. Co., (W. D. Ark. 1911) 189 Fed. 471.

Transportation when interstate commerce.

In Northern Pac. R. Co. v. State of Washington, (1912) 222 U. S. 370, 32 S. Ct. 160, 56 U. S. (L. ed.) 237, the court, on the question whether the facts in the showed that the transportation was interstate commerce, said: "The train, although moving from one point to another in the

state of Washington, was hauling merchandise from points outside of the state des. tined to points within the state and from points within the state to points in British Columbia, as well as in carrying merchandise which had originated outside of the state and was in transit through the state to a foreign destination. This transporta tion was interstate commerce, and the train

an interstate train, despite the fact that it may also have been carrying some local freight."



1909 Supp., p. 582, sec. 2.

"The purpose of this legislation is the Congress' had in view in the passage of protection of the lives of employés of rail- the act the safety of both those traveling road companies, and also the lives and prop- on and those engaged in operating interstate erty intrusted to the railroads as common railway trains, to be accomplished by affordcarriers. It recognizes that there is a limit ing protection against the uncertain working to human endurance, and that hours of rest of the minds of its employees overtaxed by and recreation are needful to the health and long-continued service, loss of sleep, etc. In efficiency of men engaged in the hazardous so providing it classified the offices in which work of railroading. The benefit it is in- telegraphic operators engaged in handling tended to confer is to better enable em- train orders worked as day offices only and ployés to serve their employers, and to pro- those open for the transaction of such busimote the needs of commerce, and also to ness during both the day and night. As to promote the safety of travelers upon rail. the latter class, it limited the hours of serv. roads. The limiting of hours of labor of ice of such operators to 9 out of 24. As to those who are in control of dangerous agen- the former class, where the office was open cies, it is believed, will relieve the employés for business only during the daytime, it limof overfatigue and resulting indifference, and ited the hours of service of such operators thus avert accidents which lead to injuries to 13, unless in case of emergency the period and destruction of life and property.” of service should be extended to 17 hours United States v. Yazoo & M. V. R. Co., (W. without violating the statute. Such appears D. Tenn. 1913) 203 Fed. 159.

to be the reasonable construction of the act Experience has shown that many serious and the one given, at least in principle, from accidents to trains causing great loss of life those courts in which it has received conor permanent disabilities to passengers, as sideration. United States v. Missouri, K. & well as employees, are often due solely to T. Ry. Co., (D. C. Kan. 1913) 208 Fed. 957. the fact that members of the train crew had Liberal construction. — The act being become exhausted by reason of being re- remedial, for the purpose of preventing acciquired or permitted to remain on duty for dents to trains and consequent injuries to too long a period, and therefore unable to

passengers and employees, it is the duty of give that care and attention necessary for the courts to construe it liberally in order the safety of the train. To prevent acci- to accomplish the purpose of its enactment. dents from such causes the Congress, in its United States v. Kansas City Southern Ry. wisdom, enacted this statute prohibiting Co., (W. D. Ark. 1911) 189 Fed. 471. See railroads not only from requiring any em- to the same effect United States v. Great ployee subject to the act to remain on duty Northern Ry. Co., (N. D. Idaho 1913) 206 for a longer period than sixteen consecutive Fed. 838; United States v. St. Louis, Southhours, but also from “permitting" it. United western Ry. Co. Texas, (W. D. Tex. 1911) States v. Kansas City Southern Ry. Co., 189 Fed. 954. (W. D. Ark. 1911) 189 Fed. 471.

1909 Supp., p. 583, sec. 3.

“This law was passed to meet a condition road employés so excessively as to impair of danger incidental to the working of rail. their strength and alertness. It is highly

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remedial, and the public, no less than the in stations that are "continuously operated
employés themselves, is vitally interested in only during the daytime.” United States v.
its enforcement. For this reason, although St. Louis Southwestern Ry. Co. of Texas,
penal in the aspect of a penalty provided for (W. D. Tex. 1911) 189 Fed. 954.
its violation, the law should be liberally con- The word "orders" as used in the section
strued in order that its purposes may be is not confined to what the railroads tech-
effected." United States Kansas City nically call “train orders,” that is, such or-
Southern Ry. Co., (C. C. A. 8th Cir. 1913) ders as emanate from the train dispatcher's
202 Fed. 828.

oflice, and are reduced to writing and handed In United States v. Chicago, M. & P. S. to the conductor and engineer of a train. R. Co., (E. D. Wash. 1912) 197 Fed. 624, An order affecting train movements may be the court said: “While the statute is penal given by a wave of the hand or the flash in its nature, it is in some aspects remedial of a lantern, and its disobedience might and should be so construed as to promote the cause as dire consequences as the failure to apparent policy and object of the legisla- obey a written message. Necessarily an orture, and not entirely defeat its purpose.” der affecting train movements can be given

A state statute which attempts to regu- by any subordinate having to do with trains late the hours of service of persons engaged and switches, such as a towerman. United in interstate commerce is in conflict with States v. Houston Belt & Terminal Ry. Co., this section and is therefore void. State v. (C. C. A. 5th Cir. 1913) 205 Fed. 344. Wabash R. Co., (1911) 238 Mo. 21, 141 S. An office is "continuously operated night W. 646.

and day" although it is closed each day of "Common carrier" as including railroad in twenty-four hours four times for the period hands of receiver. - This section is applicable of one hour. United States v. St. Louis to railroads in the hands of a receiver. Southwestern Ry. Co. of Texas, (W. D. Tex. United States v. Ramsey, (C. C. A. 8th Cir. 1911) 189 Fed. 954. 1912) 197 Fed. 144, wherein the court said: Employees included in statute. — An em“Congress, in passing the act in question, ployee to be within the protection of the must have intended to use the term 'common statute must be engaged in work which has carrier' in the usual and ordinary accepta- some connection, though it may be remote. tion of the term, to wit, as one engaged in with the safety of the train, or with the the business of carrying persons and prop- safety of persons who might be injured by erty from one place to another, for compen- the movement of the train. Schweig v. Chisation, for all who should apply to have cago, M. & St. P. Ry. Co., (D. C. Minn. their goods transported or to be transported 1913) 205 Fed. 96. in person.

The mere fact that the statute Employees on intrastate trains hauling in. in question is a penal one does not require terstate freight. — Within this rule, that the words 'common carrier should re- ployees of a railway company, engaged in ceive a restricted interpretation.

It hauling freight, from some intermediate seems to us clear that the term 'common point on the railway line to another point carrier' had a well-defined meaning, and that in the same state where it is taken up by the receiver of a railroad came within the the regular trains for interstate shipment, are designation 'common carrier'; that Congress, "employed in interstate commerce, and the in using the term 'common carrier,' used it railway company itself is engaged in interin the sense in which such words are gen- state commerce. United States v. Chicago, erally meant and understood; that the ob- M. & P. S. R. Co., (E. D. Wash. 1912) 197 ject and purpose of the statute would be Fed. 624. entirely defeated in all cases in which a Part of duty not connected with movement railroad or other common carrier is oper- of train. — Under a proper construction of ated by a receiver, if the words 'common car- the act, locomotive firemen, engineers, conrier should be given a more restricted mean- ductors, and other members of train crews, ing than generally understood. It seems being "employés” as that term is defined, clear that a receiver, in the operation of a cannot be permitted to be on duty for more railroad, is a common carrier within the than 16 consecutive hours, regardless of the meaning of the statute; and though he is question whether such duty consists in whole not personally liable, he is liable in his or only in part of work directly connected official capacity, and the payment of any with the movement of trains. Thus where judgment obtained would be subject to the a locomotive fireman at the end of a run is order of the court appointing the receiver in required to act as watchman on his engine the exercise of its equitable powers."

so that the combined time of his work as The expression “on duty," as used in this fireman and watchman exceeds the sixteen section, means to be actually engaged in hours, the statute is violated. United States work or to be charged with present respon- v. Great Northern Ry. Co., (N. D. Idaho sibility for such should the occasion for it 1913) 206 Fed. 838; United States v. Misarise."

United States v. Denver & R. G. R. souri Pac. Ry. Co., (D. C. Kan. 1913) 206 Co., (D. C. N. M. 1912) 197 Fed. 629.

Fed. 847. The classification of telegraph operators is Deductions allowed in computing sixteen not arbitrary, thereby rendering the act void, hour period - The time allowed for meals since it discriminates between operators en- should not be deducted in computing the sir

in stations that are "continuously teen hour period. — United States v. Chicaperated night and day" and those employed go, M. & P. S. R. Co., (E. D. Wash. 1912) F. S. A. Supp.-52.




197 Fed. 624, wherein the court said: “The latter train being uncertain, and the duty statute uses the terms, 'sixteen consecutive existing upon the crew of the former train hours,' and 'continuously on duty’; and to resume the journey immediately upon while, literally speaking, 'consecutive' means such arrival, such crew is “on duty" during succeeding one another in regular order, the period of waiting and such interval in with no interval or break, and the word the operation of the train does not consticontinuously' means substantially the same, tute a break in the “sixteen consecutive yet it is manifest that no such strict or hours” necessary to a violation of this act. literal meaning of these expressions was in. This principle is not interfered with by the tended. The purpose of the statute, as in- fact that during such period of waiting the dicated by its title, is to promote the safety switch is locked, the headlight of the wait. of employés and travelers upon railroads, ing train is extinguished, its conductor is by limiting the hours of labor of those who reading, and its brakemen are asleep. Unitare in control of dangerous agencies, lest by ed States v. Denver & R. G. R. Co., (D. C. excessive periods of duty they become fa- N. M. 1912) 197 Fed. 629. tigued and indifferent, and cause accidents The time between reporting for duty and leading to injuries and destruction of life. starting on a run should be counted in com

I cannot believe that by the expres- puting the sixteen hours period of duty, notsions, 'sixteen consecutive hours,' and 'con- withstanding the pay of the employee begins tinuously on duty,' Congress intended to in- only at the starting time. United States v. clude only those who are employed for 16 Denver & R. G. R. Co., (D. C. N. M. 1912) hours, without interruption for meals or 197 Fed. 629, wherein the court said: “It otherwise. Congress was no doubt mindful is doubtful if any definition of the words of the fact that no laboring man works for ‘on duty' can be clearer than the words them16 consecutive hours, or is on duty continu. selves. Manifestly, however, they mean to ously for that period, without food or drink, be either actually engaged in work or to be except in cases of dire necessity, and the act charged with present responsibility for such should not be so restricted. It may be said should occasion for it arise. Tested by this that trainmen are on duty and subject to definition, the crew during the preparatory call during meal hours, but this is only be- 15 minutes was clearly on duty. They were cause such is the will of their employers. at the starting point pursuant to a rule of If a railroad company may relieve its em- the defendant company requiring them to be ployés from service during meal hours, it there. They were engaged in work necessary may also relieve them from service every to the trip. The conductor, according to time a freight train is tied up on a side the proofs, was getting his bills and orders, track waiting for another train, and thus de- the brakemen were looking over the train to feat the very object the legislature brad in detect defective cars and equipment and in view."

going to the roundhouse to bring the engines A lay-off while on a trip for an indefinite and to couple them to the train. With all period waiting the arrival of a delayed en- of these unperformed the train could not gine is not to be deducted in computing the have moved. With some unperformed the sixteen hour period. United States v. Chi- train would probably have moved only to cago, M. & P. S. R. Co., (E. D. Wash. 1912) destruction for lack of orders or of safe 197 Fed. 624, wherein the court said: “If

equipment. These duties were quite as imthis crew had been laid off for a definite

portant as those after the train started, and, period of three hours at a terminal or other

contrary to what counsel contend, impress place where the crew might rest, such layoff would no doubt break the continuity of

us as constituting quite as great a strain the service. But such was not the case here.

upon the nervous and physical energies as The crew was laid off for an indefinite pe

arose after the train was actually in motion.

We believe such to have been as much in riod, awaiting the arrival of a delayed engine. They did not know at what moment

the congressional mind in declaring what the train might move, and had no place to

length of duty shall call for rest as those go except to a bunk house, or remain in the

connected with a train actually moving. caboose. They chose the latter course. This,

Nor does it detract from this view that the in my opinion, was a trifling interruption. men were paid nothing for this preliminary The facts in this case demonstrate the ab- work. The defendant can hardly be heard to surdity of the company's claim. According

contend this in the face of its rule requiring to its view of the law, it may work its em- this very service. Presumably, however, in ployés for the full period of 16 hours, allow fixing a rate of compensation beginning in them two hours and forty-five minutes off terms only with the starting time, the emofor their meals, lay them off for 3 hours at ployés and the railroad took into consideraa siding in the mountains to wait for a tion the rule just mentioned, so that after helper, and thus leave them two hours and all this preliminary work was not really 15 minutes for sleep and recreation. Such done gratuitously, but was merged into a a policy would illy protect the safety of scale of wages mutually satisfactory to all either the employés or the traveling public." concerned. At any rate, labor does not

Train held at siding waiting for another cease to be such because not paid for, nor train.—Where a train is held upon a siding does duty cease to exist because performed at a station for 55 minutes to allow another without compensation in connection with train to pass, the exact time of arrival of the duty for which there was compensation."



The effect of the violation of this act is ute may amount to an offense, although the not to create an unconditional liability for act does not involve turpitude or moral all accidents happening during the period wrong.

Armour Packing Co. United beyond the statutory time irrespective of States, (C. C. A. 8th Cir. 1907) 153 Fed. 1, proof showing a connection between the acci- 14 L.R.A.(N.S.) 400, (1908) 209 U. S. 56, dent and the working over time; in other 28 S. Ct. 428, 52 U. S. (L. ed.) 681; Chicago, words the carrier is not an insurer of the St. P., M. & 0. Ry. Co. v. United States, safety of all his employees while working (C. C. A. Sth Cir. 1908) 162 Fed. 835. beyond the statutory time. St. Louis, I. M. By the terms of the proviso the carrier is & S. R. Co. v. McWhirter, (1913) 229 U. S. excused 'where the delay is the result of 265, 33 S. Ct. 858, 57 U. S. (L. ed.) 1179, cause not known

at the time rerersing (1911) 145 Ky. 427, 140 S. W. said employee left a terminal, and which 672, wherein the court said: “We are un could not have been foreseen.' Not mereable to discover in the text of the statute ly which was not foreseen, but which could any support for the conclusion that it was not have been foreseen. The phrase by the purpose of Congress in adopting it to the exercise of due diligence and foresight' subject carriers to the extreme liability of is not present. Counsel argue that by leavinsurers which the view taken of the act by ing out this phrase Congress intended to the court below imposes. We say this be- limit the liability of the carrier; that it cause although the act carefully provides meant to imply that what was not actually punishment for a violation of its provisions, foreknown could not, in contemplation of nowhere does it intimate that there was a this law, have been foreseen. We cannot purpose to subject the carrier who allowed assent to this interpretation. Clearly Conits employees to work beyond the statutory gress did not intend to relieve the carrier time to liability for all accidents happening from responsibility in guarding against deduring such period without reference to lays in a matter deemed to be of such im. whether the accident was attributable to the portance. By this act it sought to prevent act of working over time. And we think railroad employees from working consecuthat where no such liability is expressed in tively longer than the period prescribed, as the statute it cannot be supplied by impli- completely and effectively as could be accation. It requires no reasoning to demon- complished by legislation. To bring itself strate that the general rule is that where within the excepțions stated, the carrier negligence is charged, to justify a recovery must be held to as high a degree of diliit must be shown that the alleged negligence gence and foresight as may be consistent was the proximate cause of the damage. The with the object aimed at, and the practical character of evidence necessary to prove such operation of its railroad. Conformably to causation we need not point out, as it must this view it has been uniformly held by the depend upon the circumstances of each case. courts that, ordinarily, delays in starting Conceding that a case could be presented trains by reason of the fact that another where the mere proof of permitting work train is late; from side-tracking to give beyond the statutory time and the facts and superior trains the right of way, if the meetcircumstances connected with an accident ing of such trains could have been antici. might be of such character as to justify not pated at the time of leaving the starting only the conclusion of negligence, but also point; from getting out of steam or clean. the inference of proximate cause, such con- ing fires; from defects in equipment; from cession can be of no avail here, since the switching; from time taken for meals; and instruction of the trial court and the ruling in short from all the usual causes inciaffirming that instruction were based upon dental to operation-are not, standing alone, the theory that the mere act of negligence in valid excuses within the meaning of this permitting an employee to work beyond the proviso. The carrier must go still farther statutory period created liability irrespective and show that such delays could not have of the connection between the alleged negli- been foreseen and prevented by exercise of gence and the injury complained of.”

the high degree of diligence demanded.” But in St. Louis, M. & S. R. Co. v. Mc- Casualty has been defined as an act which Whirter, (1911) 145 Ky. 427, 140 S. W. proceeds from an unknown cause or is an 672, it was held that a carrier is liable for unusual effect of a known cause. United the death of a train employee while engaged States v. Kansas City Southern Ry. Co., in its service, in violation of the restriction (W. D. Ark. 1911) 189 Fed. 471. contained in this section, the violation of the Unavoidable accident. — "While some austatutory duty being negligence per se. thorities hold that “unavoidable accident"

Necessity that act of carrier involve turpi- is synonymous with 'act of God, the better tude or moral wrong.

- In United States v. definition, in the opinion of the court, ig. Kansas City Southern Ry. Co., (C. C. A. that it must be an inevitable accident which 8th Cir. 1913) 202 Fed. 828, the court said: could not have been foreseen and prevented “The act under consideration does not em- by the exercise of that degree of diligence ploy the words “knowingly' and 'willfully.' which reasonable men would exercise under The carrier is made liable if it requires like conditions and without any fault ator permits any employee to be or remain tributable to the party sought to be held on duty in violation of stated provisions. responsible.” United States v. Kansas City This case then falls within that class where Southern Ry. Co., (W. D. Ark. 1911) 189 purposely doing a thing prohibited by stat. Fed. 471.

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