United States v. Southern Ry. Co.

• Decision Date: 02 March 1905
• Docket Number: 10,637.
• Citation: 135 F. 122
• Parties: UNITED STATES v. SOUTHERN RY. CO.
• Court: U.S. District Court — Southern District of Illinois

135 F. 122

UNITED STATES v. SOUTHERN RY. CO.

No. 10,637.

United States Circuit Court, S.D. Illinois.

March 2, 1905

Thos Worthington, U.S. Atty., and H. A. Converse, Asst. U.S. Atty.

Edward C. Kramer, for defendant.

The material averments of the declaration are as follows: First that the defendant is a common carrier engaged in interstate commerce by railroad; second, that on the 29th day of November, 1904, in the county of St. Clair, in the Southern District of Illinois, the defendant hauled and used on its line of railway car No. 1,353, and marked 'L.E. & St L.C.R.;' which car had on the 'A' end thereof an inoperative uncoupling mechanism, so faulty that in handling said car it could not be uncoupled without the necessity of a person going between the end of said car and the one to which it might be coupled; third, that said car was then used in moving interstate traffic. The declaration also negatives the proviso contained in section 6 by averring that the car was not a four-wheel car, nor an eight-wheel standard logging car. In support of the first averment it was admitted on trial by counsel for the defendant that the defendant at the time stated in the declaration operated a line of railroad from East St. Louis, Ill., to Louisville, in the state of Kentucky. In further support of this averment the plaintiff introduced the waybill on which said car was hauled by the defendant, showing that it was billed by the defendant company from New Baden, Ill., to East St. Louis, Ill consigned to the St. Louis Coal Company (the name of C. A. Ringhoff, Howard Station, 'Bridge,' and 'Pacific,' being written on the bill), and that at East St. Louis, Ill., the defendant company issued another waybill for the same car to the Missouri Pacific Railroad at St. Louis, Mo., and under the heading 'Consignee and Final Destination' appeared, 'C. A. Ringhoff, Howard Station, St. Louis, Missouri. ' It appeared that the car was loaded with coal from certain mines at New Baden, Ill., and that said coal was conveyed by the car to its destination at or near St. Louis, Mo. Said waybills were also offered to support the third averment in the declaration, namely, to show that the car at the time was engaged in moving interstate traffic. In support of the second averment, Messrs. Wright and Belnap, inspectors of the Interstate Commerce Commission, testified that they first inspected this car between 2 and 3 p.m. on November 29, 1904, on tract No. 14 in the new yard or the Denver-side yard of the Southern Railway Company at East St. Louis, Ill., and found that the clevis, which is a part of the chain (also called 'pin-chain') connecting the lever of the uncoupling mechanism with the lock pin, was missing from the 'A' end of the car, rendering the uncoupling mechanism entirely inoperative on that end of the car. It further appeared from the testimony of said witnesses and the witnesses J. J. O'Briene and J. J. Devanney, that, with the uncoupling mechanism of said car in the condition in which it was found, it was impossible to uncouple the car at its 'A' end from the car to which it might have been coupled without the necessity of a man going between the ends of the cars in order to lift the lock pin, or 'lock block,' as it is sometimes called. There was no testimony contradicting these statements. Said car was discovered in its defective condition at about the same time that eight other cars in the same drag were discovered to be in bad order as to their safety appliances. The yard of the defendant company in which the car was found is about two miles from the yard of the Terminal Railroad Association, near the Eads Bridge, to which it was delivered by the defendant company about 4:25 p.m. on November 29, 1904. The Terminal Railroad Association, to which the car was delivered, is a road engaged in transfer business by which passengers and freight are transferred to and from between St. Louis, Mo., and East St. Louis, Ill., by way of the Eads Bridge, and the Terminal received this car upon the billing of the defendant company for the purpose of transferring it to its destination in Missouri. It further appeared from the evidence that, after the second or transfer billing was made out by the defendant company, the car was hauled by it under said billing from its Denver-side yards, a distance of about two miles, to the yards of the Terminal Railroad Association. The inspectors of the Interstate Commerce Commission went with said drag of cars, including the car involved in this case, from the Denver-side yards of the defendant company to the yards of the Terminal Railroad Association, and there called the attention of Mr. J. J. Devanney, foreman of the car department of the Terminal Railroad Association, to its defective condition. He noted the defect, and ordered the car repaired by the agents of the Terminal Railroad Association, and it was repaired by its employes C. E. Jones, and John Waddell before the car crossed the river to St. Louis. At the time that Mr. Devanney ordered this car to be repaired, there was no mark upon it, made by the agents of the defendant company, showing that it was in bad order, and no directions were given by any agent of the defendant company for its repair. Morris Mehan, switchman for the defendant company at its Denver-side yards, testified that he frequently had to go between the ends of said cars to make uncouplings.

The defendant, as a defense, insisted, first, that the car in question was hauled by it from New Baden, Ill., to East St Louis, Ill., and from there it was consigned to the Terminal Railroad Association for delivery across the Mississippi river from East St. Louis, Ill., to its destination in St. Louis, Mo., and that at the time when the defendant company hauled said car the car was not engaged in hauling interstate traffic, and that the defendant company did not transfer the car across the river. Secondly, it was insisted on behalf of defendant that the car in question had been originally so supplied with safety couplers as to comply with the federal statute, that in handling such a car the defendant could only be required to exercise reasonably diligence to see that it was kept in repair, that it had exercised such diligence in this case, and that it could not be held responsible for any defect which was not discovered by the exercise of such reasonable care. In support of this position it attempted to show by its chief car inspector and other inspectors that all cars were carefully inspected when they came into its yards, and that this car and others involved in these cases had been so inspected soon after they entered the yard; also that it again inspected cars made up in trains to go out to the eastward, but did not again inspect cars made up in drags to go to the Terminal. It was further insisted that an arrangement existed between the defendant company and the Terminal Railroad Association by which cars were delivered by the former to the latter, and, if found defective in any respect, they were to be repaired, and the expense charged to the defendant company. In this connection the defendant offered an 'M.C.B. defect card,' which says, among other things, 'will be received at any point on this company's lines with the following defects. ' This card was to be tacked on the car on which the defect was found. It was admitted by Mr. Holloway, the chief inspector for the defendant, that this card was used by the defendant to cover defects under the safety appliance act, as well as other defects. Mr. O'Briene, foreman of the car department of the Terminal Railroad Association, testified that his company would not put this card on a car to cover defects under the safety appliance act, and that the card was used to show that connecting lines would not be charged with the defects noted thereon. Counsel for defendant further insisted that it was not practicable to again inspect these cars before sending them to the Terminal Railroad Association; that the original inspection given them when they arrived in the Southern Yards was sufficient, and a further inspection was unnecessary, as the Terminal Railroad Association was in duty bound to inspect these cars upon their receipt from the Southern Railway Company, and before sending them across the river. But the chief inspector for the defendant company further testified that it would have been practicable to further inspect them before sending them to the Terminal Railroad Association if a sufficient force of inspectors was provided. It further appeared that the defendant company is now inspecting the drags before sending to the Terminal. It further appeared from the evidence that at the time this car was discovered the defendant employed one day and one night inspector, and one day and one night light repairer, in the switchyards, and eight repairers on the repair tracks, while now it has three light repairers in the switchyards and twelve men working at the repair tracks; making an increase of 200 per cent. in light repairs since the filing of these suits, and 50 per cent. increase on their repair tracks. The inspection cards used by the yard inspector of the defendant were introduced in evidence, showing that the cars in question were not marked in bad order; but on cross-examination the inspector admitted that it was not his custom to note on the card such defects as appear in this case, but that he called the attention of the light-repair man to them, and directed him to make the repairs. Upon this showing it was insisted upon behalf of the plaintiff that these cards become entirely valueless as evidence, as they were not even supposed to show the defect in question. The evidence further showed that this particular car arrived in the Denver-side yards on ...