Chesapeake & O. Ry. Co. v. United States

• Decision Date: 14 September 1915
• Docket Number: 1323.
• Citation: 226 F. 683
• Parties: CHESAPEAKE & O. RY. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

226 F. 683

CHESAPEAKE & O. RY. CO. v. UNITED STATES.

No. 1323.

United States Court of Appeals, Fourth Circuit.

September 14, 1915

David H. Leake, of Richmond, Va. (Walter Leake, of Richmond, Va on the brief), for plaintiff in error and cross-defendant in error.

Hiram M. Smith, Asst. U.S. Atty., of Richmond, Va., and Philip J Doherty, Sp. Asst. U.S. Atty., of Washington, D.C. (Richard H. Mann, U.S. Atty., of Petersburg, Va., on the brief), for the United States.

Before KNAPP and WOODS, Circuit Judges, and CONNOR, District Judge.

KNAPP Circuit Judge.

The United States sued the Chesapeake & Ohio Railway Company to recover penalties for alleged violations of the safety appliance laws. The declaration contains two counts, charging the defendant (1) with hauling in and about the city of Richmond, Va., on September 23, 1913, a car with coupling apparatus in such defective condition that the car could not be coupled automatically by impact; and (2) with hauling in and about the city of Richmond, on September 25, 1913, a train of cars in transfer service without having the required percentage of cars operated with the power or train brake system.

In support of the first count the testimony of the government's inspectors was to the effect that they examined the car in question in the Second Street yard of defendant, and found that the clevis, which connects the uncoupling lever with the lock block of the coupler, had been broken; that the broken parts were rusty, and appeared to have been broken 'for some length of time'; that the car in this condition could not be coupled or uncoupled without a man's going between the cars; that shortly afterwards the car was cut loose from another, a brakeman going between them for that purpose, and shifted to the scale track in the same yard; that a few minutes later this car with several others, was hauled from the Second Street yard, over the main line of defendant, down to and through the Ninth Street yard, to a private siding about two squares beyond, where it was placed for unloading; that they discovered nothing else out of order with that end of the car; that when the car was moved from the Second Street yard it did not show any defect in the draft rigging that would permit the coupler to pull out far enough to break the clevis; that the defect of a broken clevis is easily repaired by using a piece of wire or other appliance to make the connection, or by putting in a new clevis; and that the defect in question could have been so repaired at any place without taking the car to a repair shop.

Upon this testimony the government requested the following instruction:

'The court charges that, if you believe from the evidence that the Chesapeake & Ohio car No. 22387 was moved from the Second Street yard to Forbes track (the place where it was unloaded) by the defendant company, and that when the said car was thus moved the clevis on the B end of the said car was broken so that the coupling on the said car could not be uncoupled without the necessity of a man's going between the ends of the cars, and that the movement aforesaid was not for the purpose of repairing the said car, then you must find for the United States on the first count of the declaration in this case.'

The refusal of this instruction, and the instruction actually given, to which exception was taken, present the questions to be determined.

The evidence on behalf of defendant tended to show that the conductor of the train which brought the car to Richmond on the 21st of September-- the car being then placed in the Fulton yard-- observed no defects in the coupling apparatus while the car was in his charge; that defendant's inspectors at the Fulton yard examined the cars of that train on the same day, and found nothing out of order with the coupling apparatus or draft rigging of the car in question; that the yard conductor, who had charge of shifting the car from Fulton yard to the Second Street yard, discovered no defects of the kind mentioned; that the company had no inspector at the Second Street yard; that its inspectors at the Ninth Street yard examined the car on the 23d of September at Forbes siding, where it was placed that day for unloading, as above stated, and found the draft rigging out of order and the lift lever defective, so that the car would not couple automatically by impact; that the car, when unloaded, was shifted to another siding near by, where it remained for a couple of days, when it was moved back through the Ninth Street and Second Street yards to the Fulton yard for repairs; and that this was the nearest point at which the needed repairs could be made, as there were no facilities at either of the other yards named.

In view of this evidence the defendant contended, and the trial court charged the jury in substance, that if the car was inspected at the Fulton yard and found in good order, and from there transferred to the Second Street yard and thence to Forbes siding, where it was discovered by defendant's inspectors to be in a defective condition, and if the car was not thereafter moved, except to be taken to the company's shops for repairs, and such movement was necessary, because it was impracticable to make the needed repairs at the place where the defects were discovered, then the defendant was not liable for hauling the car in that condition, notwithstanding the fact...