WOODROUGH, Circuit Judge.
This civil action was brought under the Hours of Service Act of March 4, 1907, entitled "An act to promote the safety of employés and travelers upon railroads by limiting the hours of service of employés thereon." 45 U.S.C.A. §§ 61-64. Sections 62 and 63 read, in part, as follows:
"62. Hours of service limited. It shall be unlawful for any common carrier, its officers, or agents, subject to sections 61-64 of this title to require or permit any employees subject to sections 61-64 of this title to be or remain on duty for a longer period than sixteen consecutive hours, and whenever any such employee of such common carrier shall have been continuously on duty for sixteen hours he shall be relieved and not required or permitted again to go on duty until he has had at least ten consecutive hours off duty; * * *."
"63. Penalty; suits therefor; exceptions from operation of act. * * * Provided, That the provisions of sections 61-64 of this title shall not apply in any case of casualty or unavoidable accident or the act of God; nor where the delay was the result of a cause not known to the carrier or its officer or agent in charge of such employee at the time said employee left a terminal, and which could not have been foreseen: Provided further, That the provisions of this chapter shall not apply to the crews of wrecking or relief trains."
The plaintiff charged that defendant had violated section 62, by requiring and permitting five named employees connected with the movement of trains to be and remain on duty for a longer period than sixteen hours between the hour of 6:30 o'clock a.m., on March 31, 1942, and 5:50 a.m., of April 1, 1942. The defendant admitted that the named employees did remain on duty for a longer period than sixteen hours, as charged, but the defense was that they were, during all of the time, working as members of a crew of a wrecking train, and that by reason of the last proviso of section 63 the provisions of the Act relating to the limitation of hours of service did not apply to them.
On the trial of the case to the court without a jury, the facts were found as follows:
"That the defendant Guy A. Thompson was at all times mentioned in the complaint the duly appointed, qualified and acting trustee of the Missouri Pacific Railroad Company; that said railroad was at the time mentioned in the complaint, an interstate carrier of freight and passengers, operating lines of railway through the State of Missouri and adjoining states; that said company owns and operates a double track, main line railroad from the suburbs of St. Louis, Missouri, to the City of Jefferson, where a division point is maintained; that said company also operates two lines of railroad from Jefferson City, Missouri, to Kansas City, Missouri; that one of the lines of railroad from Jefferson City to Kansas City is called the river route and the track is laid along the south bank of the Missouri River; that the other line of railroad from Jefferson City to Kansas City, Missouri runs over the hills and prairies through the towns of California, Sedalia, Warrensburg and other points, and merges with the river route at Kansas City; that the river route is a water grade line of railroad, while the overland route between Kansas City and Jefferson City has numerous excessive grades for freight service; that practically all of the freight received by the Missouri Pacific at Kansas City, Missouri, and points beyond, destined for St. Louis, is and was routed by the railroad company over its river route because of the low grade and because of the fact that one train on such route can do the work of three to five trains over the overland route between the same points; that said river route is a one-track railroad; that on the morning of March 24, 1942, a wreck occurred on the said river route of the defendant at a point about three miles east of Boonville, Missouri and about 41 miles west of Jefferson City, Missouri; that approximately 35 or 40 cars were derailed, some of which were totally destroyed and others of which were repaired and later removed from the scene of the wreck; that the derailed cars were loaded with all kinds of merchandise, including some 800 head of livestock, one or more loads of fresh meat, fresh salmon, cabbage and other articles of food; that approximately 160 head of livestock were killed and scattered along the right-of-way and mixed with the debris of the wreck.
"The Court further finds that at Jefferson City, Missouri, the defendant continuously maintains a wrecking train, which is ready for service at all times; that said wrecking train consists of a wrecker outfit mounted on wheels, a car carrying a tank of water, another car loaded with car trucks, another car loaded with all kinds of wrecking equipment ordinarily used in cleaning up a wreck, and another car containing ties, rails, spikes and other materials commonly and generally used in the performance of a wrecking train; that such train also includes a commissary car where meals can be cooked and served to the members of the wrecking train crew; that said train is maintained at all times for immediate use, and steam is kept alive in the boiler of the wrecker at all times; that as soon as notice of the wreck was received at Jefferson City, Missouri, the Trainmaster called the individuals named in the complaint herein, as members of the crew of said train, and ordered the train to proceed to the scene of the wreck; that the Trainmaster accompanied the train and remained with it until the work of restoring the track and cleaning up the wreck was completed; that the wrecking train arrived at the scene of the wreck on the morning of March 24, 1942; that this wrecking train worked on the east end of the wreck, while a similar wrecking train from Kansas City worked on the west end of the wreck; that the crews of both wrecking trains first made a pathway through the wreckage in order that the wrecking trains could move over the track between the wrecked cars, and in order that regular freight trains might pass the scene of the wreck; that a temporary track was laid for this purpose, to one side of the regular road bed; that this temporary passageway was completed late in the morning of March 25 and the wrecking trains crews then took a rest; that they resumed the work of clearing the wreck on March 26 and continued the same work on the 27, 28, 29 and 31 of March; that the members of the wrecking train mentioned in the complaint began work on March 31 at 6:30 a.m. and continued their work at the scene of the wreck until about 10 p. m. the same day, at which time they moved their train to Boonville, a distance of three miles to the west, arriving at Boonville at 10:15 p.m.; that upon arriving at Boonville the crew was fed, the engine was watered and coal was taken; that at the time there were approximately 29 cars which were damaged in the wreck standing on the only passing track at Boonville, Missouri; that many of these cars had no drawbars nor brakes; that they could not be put in any train and had to be chained together in order...
