Chicago, M. & St. P. Ry. Co. v. United States

• Decision Date: 27 November 1908
• Docket Number: 2,640.
• Citation: 165 F. 423
• Parties: CHICAGO, M. & ST. P. RY. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

165 F. 423

CHICAGO, M. & ST. P. RY. CO. v. UNITED STATES.

No. 2,640.

United States Court of Appeals, Eighth Circuit.

November 27, 1908

J. C Cook (H. Loomis, on the brief), for plaintiff in error.

Luther M. Walter (Marcellus L. Temple, on the brief), for defendant in error.

Before HOOK and ADAMS, Circuit Judges, and CARLAND, District Judge.

HOOK Circuit Judge.

This was an action by the United States against the Chicago Milwaukee & St. Paul Railway Company, a railroad corporation engaged in interstate and local commerce, to recover penalties for four separate violations of the safety appliance statute. Act March 2, 1893, c. 196, 27 Stat. 531 (U.S. Comp. St. 1901, p. 3174), amended by the acts of April 1, 1896, c. 87, 29 Stat. 85, and March 2, 1903, c. 976, 32 Stat. 943 (U.S. Comp. St. Supp. 1907, p. 885). Judgment was rendered against the company upon each of the four counts of the petition, but the only complaint here is of the recovery upon the first and fourth.

The evidence under the first count showed these facts without dispute: A west-bound freight train of the company was wrecked near Elmira, in the state of Missouri, and some of the cars were ditched. Among them was an empty, foreign refrigerator car. In replacing this car on the track the coupler at one end was pulled out and the draft timbers and sills so broken as to be useless. It was then taken to the town of Elmira, the damaged end was chained to another car which was also injured in the wreck, and in that condition the two cars were incorporated in an east-bound freight train of the company and sent to its general repair shops at Dubuque, in the state of Iowa, about 350 miles from Elmira. During this interstate journey the refrigerator car moved upon its own trucks, was empty, and was not equipped at its damaged end with the safety appliances prescribed by the statute.

Our conclusion is that the hauling by a railroad company from one state to another of a car not equipped with the required safety appliances, upon its own trucks, as a part of a train of other cars moving in interestate commerce, is a use of the defective car in violation of the act of Congress, though it is empty and is being transported to a repair shop in the state of its destination. Had the car in question been put upon a flat car and so transported from Missouri to Iowa that would have been a movement in interstate commerce, for traffic may as well consist of the property of carriers as of the property of merchants.

In such a case the law would have required that the flat car be equipped with safety appliances. But instead of adopting that course the company used the injured car as the vehicle of its own movement, and it would seem as though the duty to comply with the requirements of the statute still remained. Even if the car did not itself carry traffic, it was engaged in intercourse between the states. The particular purpose of the movement or the character of the vehicle running on the rails between points in different states is not important. The statute applies to an engine which hauls but does not carry freight, to a dining car for the refreshment of passengers (Johnson v. Southern Pacific, 196 U.S. 1, 25 Sup.Ct 158, 49 L.Ed. 363), to an empty freight car (Voelker v Railway (C.C.) 116 F. 867), and even to a steam shovel car consisting of machinery bolted to a platform supported on trucks (Schlemmer v. Railway, 205 U.S. 1, 27 Sup.Ct. 407, 51 L.Ed. 681). In the last case the court said the phrase 'used in moving interstate traffic' occurring in the act of March 2, 1893, should not be taken in a narrow sense. The car in question was one of the connecting links between the engine and the caboose, and was a constituent part of a train moving on an interstate mission. Moreover, the case is wholly within the spirit of the act of Co...