Chicago & N.W. Ry. Co. v. United States

• Decision Date: 10 March 1909
• Docket Number: 2,794.
• Citation: 168 F. 236
• Parties: CHICAGO & N.W. RY. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

168 F. 236

CHICAGO & N.W. RY. CO. v. UNITED STATES.

No. 2,794.

United States Court of Appeals, Eighth Circuit.

March 10, 1909

C. C Wright (B. T. White and B. H. Dunham, on the brief), for plaintiff in error.

Luther M. Walter, Sp. Asst. U.S. Atty. (Charles A. Goss, U.S. Atty and A. W. Lane, Asst. U.S. Atty., on the brief), for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and AMIDON District judge.

AMIDON District Judge.

This action was commenced by the government to recover penalties under Act March 2, 1893, c. 196, Sec. 1, 27 Stat. 531 (U.S Comp. St. 1901, p. 3174), as amended by Act March 2, 1903, c. 976, Sec. 1, 32 Stat. 943 (U.S. Comp. St. Supp. 1907, p. 886). The complaint alleges that:

'The defendant, on or about June 7, 1906, hauled on its line of railroad one car, to wit, its own No. 69581; said car being an empty car and generally used in the movement of interstate traffic, said car, at the time of the violation of the above act, being consigned from Omaha, in the state of Nebraska, to Council Bluffs, in the state of Iowa.'

It was further alleged that when the car was so hauled the grab iron or handhold on the right-hand side of the 'B' end of the car was missing. The answer admits these facts, and alleges that the defect in the car was discovered while it was in the yards at South Omaha, Neb.; that the most convenient place of repair was at the defendant's shops in Council Bluffs; that the car was empty, and was moved from Omaha to Council Bluffs for the sole purpose of being repaired. A general demurrer was interposed to this answer, and sustained. Thereupon the court found the defendant guilty, and adjudged it to pay a fine of $100 and costs, and the present writ of error is brought to review that judgment.

Section 4 of the act of March 2, 1893 (27 Stat. 531), is as follows:

'That from and after the 1st day of July, 1895, until otherwise ordered by the Interstate Commerce Commission, it shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grab-irons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars.'

The amendment of 1903 (32 Stat. 943) had three objects: First, to extend the safety appliance act to traffic in the District of Columbia and the territories; second, to remove the doubt as to the meaning of the term 'cars,' as used in the act, created by the decision of this court in the Johnson Case, 117 F. 462, 54 C.C.A. 508; third, to enlarge the scope of the safety appliance act, so as to include not only 'the cars, locomotives, tenders, and similar vehicles,' etc., therein referred to, but also to embrace 'all other locomotives, tenders, cars, and similar vehicles used in connection therewith.'

Reading these statutes together, as they have been interpreted by the courts, they include, first, vehicles actually moving interstate traffic; second, such vehicles, though empty, when moving to points for the purpose of receiving interstate traffic, or otherwise commercially used by the carrier; and,...