177 F. 623 (4th Cir. 1910), 944, Norfolk & W. Ry. Co. v. United States

Docket Nº:944.
Citation:177 F. 623
Case Date:March 04, 1910
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 623

177 F. 623 (4th Cir. 1910)




No. 944.

United States Court of Appeals, Fourth Circuit.

March 4, 1910

Page 624

This was an action of debt brought by the United States to recover penalties authorized by the safety appliance act. The declaration contained nine counts. Upon trial in the court below the plaintiff abandoned its claim to recover under the second count and dismissed it. Of the remaining counts, the first charged the railroad company with operating its freight car 21158 in interstate commerce with coupling apparatus out of repair and inoperative, contrary to section 2 of the original act as amended by section 1 of the act of March 2, 1903. The second, third, fourth, fifth, and sixth counts charge the hauling by the company in a train containing interstate traffic its passenger cars numbered 512, 527, 547, and 524, respectively, without the same being equipped with the grab irons or handholds required by section 4 of the act as so amended. The seventh and ninth counts charge the hauling in a train wherein was a car engaged in interstate traffic, a Pullman parlor car, 'Blanche,' and a Pullman parlor car, 'Margaret,' respectively, unequipped with such grab irons. The eighth count charges the company with hauling its passenger car 533 at the time engaged in interstate traffic without such equipment. Demurrer to the declaration and each count thereof was entered, overruled, and exception taken. The defendant plead the general issue and filed a specification of grounds of defense. The plaintiff filed 149 interrogatories, which, on motion of the defendant, were stricken out, to which action the plaintiff excepted. A trial resulted in a verdict and judgment for $800 for the plaintiff. Seventeen bills of exceptions were saved to defendant to the rulings of the court in admitting certain testimony and rejecting certain other, the giving of certain instructions, the refusal to give certain others, to the overruling of the demurrer and of motions to direct verdict for defendant, to set aside the verdict and grant a new trial, and to the rendering of judgment. The defendant has sued out this writ of error, and the plaintiff has sued out a cross-writ of error, assigning as basis therefor the action of the court in striking out the interrogatories filed by it and the refusal to require the production of certain documentary evidence.

Theodore W. Reath and Roy B. Smith (Robertson, Smith & Wingfield, on the brief), for Norfolk & W. Ry. Co.

Thomas L. Moore, U.S. Atty., and Phillip J. Doherty, Special Asst. U.S. Atty. (Wade H. Ellis, Assistant to the Atty. Gen., and Samuel H. Hoge, Asst. U.S. Atty., on the brief).

Before GOFF and PRITCHARD, Circuit Judges, and DAYTON, District Judge.

Page 625

DAYTON, District Judge (after stating the facts as above).

Neither in brief nor oral argument has the cross-writ of error sued out by the United States been discussed by counsel. It may be assumed to have been abandoned, but, whether this be true or not, an examination of the record and the alleged errors assigned by it has fully convinced us that its grounds are without merit and it will be dismissed. Counsel for both sides in oral argument and in the very able briefs filed by them have reduced the errors assigned to five propositions.

First. Should the demurrer to the declaration have been sustained because it did not charge the appliance to be defective because of negligence and want of care on the part of the company?

Second. Did instruction No. 2 given by the court for the plaintiff in effect require of the defendant different appliances than those required by the safety appliance act?

Third. Does section 4 of the act, requiring grab irons, apply to passenger cars?

Fourth. Does this act reach or can it apply to cars containing domestic commerce not connected with or coupled to cars containing interstate commerce?

Fifth. Was it error to give instructions Nos. 4, 5, and 7 for the plaintiff, to the effect that the evidence of the company's inspector was negative, while that of the government's inspectors was positive, in character?

We will consider these questions in the order set forth. That the duties imposed upon railroad companies to equip their cars with the safety appliances required by these acts is an absolute one and relief from the penalty for noncompliance cannot be obtained by showing reasonable care and want of intentional violation we regard as fully determined by this court in Atlantic Coast Line R. Co. v. United States, 94 C.C.A. 35, 168 F. 175. Nothing need be, if indeed anything can be, added here to re-enforce the logic of that decision. It may be stated that in our judgment this ruling has been fully sustained and upheld in such cases as St. Louis, Iron Mt. R. Co. v. Taylor, 210 U.S. 281, 28 Sup.Ct. 616, 52 L.Ed. 1061; Southern Ry. Co. v. Carson, 194 U.S. 136, 24 Sup.Ct. 609, 48 L.Ed. 907; U.S. v. Colo. & N.W. R. Co., 85 C.C.A. (Eighth Circuit) 27, 157 F. 321, 15 L.R.A. (N.S.) 167; U.S. v. Atchison, T. & S.F. Ry. Co., 90 C.C.A. (Eighth Circuit) 327, 163 F. 517; U.S. v. Denver & R.G. Ry. Co., 90 C.C.A. (Eighth Circuit) 329, 163 F. 519; Chicago, M. & St. P. Ry. Co. v. U.S., 91 C.C.C.A. (Eighth Circuit) 373, 165 F. 423, 20 L.R.A. (N.S.) 473; Chicago, B. & Q. Ry. v. U.S., 95 C.C.A. (Eighth Circuit) 642, 170 F. 556; Chicago Junction Ry. Co. v. King, 94 C.C.A. (Seventh Circuit) 652, 169 F. 372; Wabash R. Co. v. U.S., 97 C.C.A. (Seventh Circuit) 284, 172 F. 864; Donegan v. Balto. & N.Y. Ry. Co., 91 C.C.A. (Second Circuit) 555, 165 F. 869; U.S. v. Southern Ry. Co. (D.C.S.D. Ill.) 135 F. 122; U.S. v. Phila. & R. Ry. Co. (D.C.E.D. Pa.) 160 F. 696; U.S. v....

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