Chicago, R.I. & P. Ry. Co. v. United States

• Decision Date: 06 August 1915
• Docket Number: 2228.
• Citation: 226 F. 27
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: CHICAGO, R.I. & P. RY. CO. v. UNITED STATES.

226 F. 27

CHICAGO, R.I. & P. RY. CO. v. UNITED STATES.

No. 2228.

United States Court of Appeals, Seventh Circuit.

August 6, 1915

By this writ of error it is sought to reverse a judgment rendered on a directed verdict and based on six several violations of the Hours of Service Act (34 Stat. 1415). Section 2 of the act after making it unlawful for a common carrier subject to the act to permit employes to remain on duty longer than 16 hours, continues as follows: 'Provide, that no operator dispatcher, or other employe who by use of the telegraph or telephone dispatches, reports, transmits, receives, or delivers orders pertaining to or affecting train movements shall be required or permitted to be or remain on duty for a longer period than nine hours in any twenty-four hour period in all towers, offices, places, and stations continuously operated night and day,' except in certain contingencies not now in question. Section 1 defines 'employes' as follows: 'The term 'employes' as used in this act shall be held to mean persons actually engaged in or connected with the movement of any train.'

Violation of the statute is conceded if the employes in question come within the class designated in the proviso and if the telephone communications made by them are included within the word 'orders' as used in the statute. Defendant's freight yards were located on the west side of its main line at about 124th street. Trains entered from the south by a switch connected with the east-bound main line and left by means of a switch connected with the west-bound main line. The employes in question were stationed at the location of the two switches; they were the switch tenders; their switch shanty was just east of the east-bound main line; in this there was a telephone, one of an eight party line. Some four miles north of this point, at Gresham, the Baltimore & Ohio Railroad crossed defendant's main line. At this crossing there was an interlocking plant. When the tower leverman threw his lever in order that defendant's train might cross, he thereby operated the Baltimore & Ohio derail, and vice versa, so that it was physically impossible for the trains to come in contract at the crossing. Defendant's passenger trains coming north into the city were, however frequently held up at the crossing if it was blocked to let a Baltimore & Ohio freight train pass. To obviate these delays it was part of the duty of the switchmen in question to telephone the towerman at the crossing that defendant's passenger train was coming. Then, until the passenger train passed the crossing, the Baltimore & Ohio freight train would not be allowed to cross.

A. B Enoch, of Chicago, Ill., for plaintiff in error.

Charles F. Clyne and Frederick Dickinson, both of Chicago, Ill., and Philip J. Doherty, of Washington, D.C., for the United States.

Before BAKER, KOHLSAAT, and MACK, Circuit Judges.

MACK Circuit Judge (after stating the facts as above).

1. Defendant contends that what the switch tenders did in relation to the towerman was to impart information, not to transmit orders. It concedes, in accordance with the decisions in United States v. Houston B. & T. Ry. Co., 205 F. 344, 125 C.C.A. 481 (C.C.A., 5th Circuit) and M.P. Ry. Co. v. United States, 211 F. 893, 128 C.C.A. 271 (C.C.A., 8th Circuit), that orders are not confined to technical written train orders; that any specific direction or instruction which a subordinate is bound to obey would be an order; but it urges that only such orders 'the violation of which might result in some accident' fall within the purpose and therefore within the scope of the statute.

Unquestionably the important object of the statute was to conserve the safety of the traveling public and of railroad employes; the relation between...