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

• Decision Date: 05 April 1918
• Docket Number: 3063,3064.
• Citation: 249 F. 805
• Parties: CHESAPEAKE & O. RY. CO. v. UNITED STATES (two cases).
• Court: U.S. Court of Appeals — Sixth Circuit

249 F. 805

CHESAPEAKE & O. RY. CO. v. UNITED STATES (two cases).

Nos. 3063, 3064.

United States Court of Appeals, Sixth Circuit.

April 5, 1918

John Galvin and Maurice L. Galvin, both of Cincinnati, Ohio, for plaintiff in error.

Thomas D. Slattery, U.S. Atty., of Covington, Ky., and Philip J Doherty, Sp. Asst. U.S. Atty., of Washington, D.C.

Before KNAPPEN and DENISON, Circuit Judges, and SATER, District Judge.

SATER District Judge.

These cases were brought by the United States to recover from the railway company, as defendant, penalties for alleged violations of the Safety Appliance Act of March 2, 1893 (27 Stat. 531), as amended April 14, 1910 (36 Stat. 298, 299).

The defendant, an interstate carrier, at the times mentioned in the pleadings maintained yards, car inspectors, and repair men at Silver Grove, Ky., but not at Covington, which is an intermediate point between Silver Grove and the defendant's western terminus at Cincinnati, Ohio. On arrival of defendant's west-bound freight trains at Silver Grove, they are taken in charge and broken up by the yard men. The cars are inspected and, if need be, repaired and are then delivered to the proper connecting lines at Cincinnati. The cars received from such connecting lines are inspected before they are received, and are thence transported by the yard men across the Ohio river, through Covington, to Silver Grove, some 10 miles distant, where they are placed in the appropriate east-bound trains. Government inspectors discovered that certain east-bound cars received by the defendant from connecting carriers at Cincinnati were each on their arrival at Covington in bad order as to some portion or portions of their safety appliances, and that certain west-bound cars coming from the Silver Grove yards were each on their arrival in Covington likewise defective. The discovery thus made was not communicated to the defendant, whose yard men moved the east-bound cars in their defective condition to Silver Grove and the west-bound cars in like condition to Cincinnati. On account of the transportation of such cars from Covington these suits were brought, the recovery sought in each count of each petition being $100.

The defendant, as to all of the counts here involved, answered that it made no inspections at Covington and had no inspectors, repair men, or facilities for making repairs at that place, and that, 'as to most, if not all, of said cars,' the defects of which complaint was made were found on the arrival of such cars at Silver Grove or Cincinnati, as the case might be, and on discovery were repaired, and that those places were the first at which the repairs could be made after the defects occurred and were detected. The defendant further alleged that, when the west-bound cars left its yards at Silver Grove and the east-bound cars left the terminals at Cincinnati, the safety appliances on each were in a safe and proper condition, and that, if they were in fact defective, as charged, when examined by the government inspectors in Covington, the defects arose after they started on their journeys from Silver Grove and Cincinnati respectively, and could not have been discovered and corrected, as regards the west-bound cars, until they arrived at Cincinnati, or, as to the east-bound ears, until they reached the yards at Silver Grove. A demurrer, which admitted all well-pleaded facts, was sustained to the answer in each case, and, as the defendant did not wish to plead further, judgment was entered against it by Judge Cochran, whose opinion is found in 242 F. 161. A reversal of both judgments is sought.

Although some of the defects in the cars were confessedly slight, and it would seem, were susceptible of prompt repair at almost any point on the defendant's line as soon as discovered, if defendant's trains were ordinarily equipped to meet such situations, and although the answers are with much show of reason assailed as faulty on the ground that an excusing averment in each is alleged in the contingent or hypothetical, and not in the issuable, form (6 Ency.Pl. & pr. 270; Suit v. Woodhall, 116 Mass. 547), we shall consider the cases as presented by the defendant on its own liberal and favorable construction of its pleadings. The situation, then, is this:

The defendant's cars were in good order when they were started on their journey from Silver Grove and Cincinnati respectively, but became in disrepair while in transit to Covington. The defendant transported such cars over its line without inspection, and in ignorance of their defects, from Covington, Ky., to the nearest station, where the defects were discovered by it and repaired. It maintains that under any reasonable interpretation of the law it...