Baltimore & O.S.W.R. Co. v. United States

• Decision Date: 18 May 1917
• Docket Number: 2959.
• Parties: BALTIMORE & O.S.W.R. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

242 F. 420

BALTIMORE & O.S.W.R. CO. v. UNITED STATES.

No. 2959.

United States Court of Appeals, Sixth Circuit.

May 18, 1917

George Hoadly, of Cincinnati, Ohio, for plaintiff in error.

Philip J. Doherty, Sp. Asst. U.S. Atty., of Washington, D.C., for the United States.

Before WARRINGTON and DENISON, Circuit Judges, and SANFORD, District judge.

SANFORD District Judge.

This action was brought by the United States to recover from the Railroad Company penalties for alleged violations of the Federal Safety Appliance Acts. The defendant answered the first cause of action alleged in the petition. A demurrer to this answer was sustained; and, the defendant not desiring to plead further, judgment was rendered against it for the statutory penalty, with costs which judgment it now seeks to review under its writ of error.

The single question presented is whether, as a matter of law, the answer set forth a valid defense to the cause of action alleged.

The petition alleged that the defendant, a common carrier engaged in interstate commerce by railroad, had, on November 11 1915, hauled over its line, as part of a train engaged in the movement of interstate traffic, a freight car having a draw-bar of less than the standard height.

The answer alleged that the defendant received this car on its line from a connecting line of railroad; that immediately on receipt thereof, and before it was moved or hauled, the defendant's inspectors discovered it to be defective that at the place where it was discovered to be defective the defendant had no facilities for repairing, and it was impossible to repair it; and that thereupon the defendant hauled it to its shop, the nearest place at which it could be repaired; and that this was the same hauling which was alleged as the cause of action.

As this defective car was not being hauled alone, but in a train in connection with cars commercially used, such movement of the car, though for the purpose of repair merely, would clearly have created absolute liability for the statutory penalty under sections 5 and 6 of the original Safety Appliance Act of March 2, 1893, c. 196, 27 St. 531 (Comp. St. 1916, Secs. 8609, 8610), as amended by section 1 of the Act of March 2, 1903, c. 976, 32 St. 943 (Comp. St. 1916, Sec. 8613). See Great Northern Railway v. Otos, 239 U.S. 349, 351, 36 Sup.Ct. 124, 60 L.Ed. 322; Southern Railway v. Snyder (6th Circ.) 187 F. 492, 497, 109 C.C.A. 344; Erie Railroad v. United States (6th Circ.) 240 F. 29, 31; and Chesapeake Railway v. United States (4th Circ.) 226 F. 683, 686, 141 C.C.A. 439.

The defendant, however, contends that the hauling of this car to the nearest available repair point under the circumstances set forth in its answer, brings such movement within the proviso of section 4 of the Supplemental Act of April 14, 1910, c. 160, 36 St. 298, and thereby relieves it from liability.

Section 4 of this Act, which supplements the Act of March 2, 1893, as amended by the Acts of April 1, 1896, and March 2, 1903, provides:

'That any common carrier subject to this Act using, hauling, or permitting to be used or hauled on its line, any car subject to the requirements of this Act not equipped as provided in this Act, shall be liable to a penalty of one hundred dollars for each and every such violation: * * * *provided, That where any car shall have been properly equipped, as provided in this Act and the other Acts mentioned herein, and such equipment shall have become defective or insecure while such car was being used by such carrier upon its line of railroad, such car may be hauled from the place where such equipment was first discovered to be defective or insecure to the nearest available point where such car can be repaired, without liability for the penalties imposed * * * if such movement is necessary to make such repairs and such repairs can not be made except at such repair point; * * * and nothing in this proviso shall be construed to permit the hauling of defective cars by means of chains instead of draw bars, in revenue trains or in association with other cars that are commercially used. * * * '

Section 5 of this supplemental Act further provides:

'That except that, within the limits specified in the preceding section of this Act, the movement of a car with defective or insecure equipment may be made without incurring the penalty provided by the statutes, but shall in all other respects be unlawful, nothing in this Act shall be held or construed to relieve any common carrier' from any of the provisions, liabilities or requirements of the Act of 1893, as amended by the Acts of 1896 and 1903; 'and, except as aforesaid,' all of the provisions, requirements and liabilities of said Act of 1893, as so amended, 'shall apply to this Act.'

The fact that this car was being hauled for repair in connection with cars in commercial use, does not, as heretofore held by this court, take such movement out of the proviso of the Act of 1910, if otherwise coming within its terms. Erie Railroad v. United States (6th Circ.) 240 Fed.supra, at page 32.

We are of opinion, however, that the movement shown in the answer is, for other reasons, not within the terms of the proviso. The general rule of statutory construction is that a proviso carves special exceptions only out of a general enacting clause; and that those who set up any such exception must establish it as being within the words as well as the reason thereof. United States v. Dickson, 15 Pet. 141, 165, 10 L.Ed. 689; Ryan v. Carter, 93 U.S. 78, 83, 23 L.Ed. 807; Schlemmer v. Buffalo Railway, 205 U.S. 1, 10, 27 Sup.Ct. 407, 51 L.Ed. 681; United States v. Trinity Railway (5th Circ.) 211 F. 448, 453, 128 C.C.A. 120. Thus it has been held that as the proviso in question relates in terms only to the movement of a car for repair after it has been discovered to be defective, it does not relieve the carrier from liability for hauling a defective car before the defect has been discovered. Chicago Railroad v. United States (8th Circ.) 211 F. 12, 15, 127 C.C.A. 438; United States v. Trinity Railway (5th Circ.) 211 Fed.supra, at page 452, 128 C.C.A. 120; Chesapeake Railway v. United States (4th Circ.) 226 Fed.supra, at page 686, 141 C.C.A. 439; United States v. Chesapeake Railway (D.C.) 242 F. 161, per Cochran, J., Safety Appliance Decisions, No. 2980. Furthermore, section 5 of the Act of 1910 provides, 'with unmistakable iteration,' that, except within the limits specified in section 4, the movement of a car with defective equipment 'shall in all other respects be unlawful. ' See Great Northern Railway v. Otos, 239 U.S.supra, at page 352, 36 Sup.Ct. 124, 60 L.Ed. 322.

The defendant's answer does not bring the movement of the car in question within the exception contained in the proviso of section 4 of the Act of 1910, in two respects:

1. It does not aver that the car had been properly equipped with a...