Denver & R.G.R. Co. v. United States

• Decision Date: 18 February 1918
• Docket Number: 4862.,4861
• Citation: 249 F. 822
• Parties: DENVER & R.G.R. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

249 F. 822

DENVER & R.G.R. CO. v. UNITED STATES.

Nos. 4861, 4862.

United States Court of Appeals, Eighth Circuit.

February 18, 1918

E. N Clark, of Denver, Colo. (Waldemar Van Cott, E. M. Allison Jr., and William D. Riter, all of Salt Lake City, Utah, on the brief), for plaintiff in error.

Philip J. Doherty, Sp. Asst. U.S. Atty., of Washington, D.C (William W. Ray, U.S. Atty., of Salt Lake City, Utah, on the brief), for the United States.

Before CARLAND, Circuit Judge, and AMIDON and MUNGER, District Judges.

AMIDON District Judge.

These are two civil actions brought by the United States against the Denver & Rio Grande Railroad Company to recover penalties for alleged violations of the Safety Appliance Act. They were tried together in the District Court upon an agreed statement of facts, resulting in judgments in favor of the government. The railroad company brings error.

Case No. 4861 involves the hauling between the stations of Helper and Salt Lake City of 11 cars that were coupled by means of chains, instead of drawbars. Case No. 4862 involved the hauling of 5 cars similarly defective.

The trains were what is known as 'hospital trains.' They were composed entirely of cars so defective as to make them unfit to be handled in ordinary freight trains until they were repaired. These trains were moved only in the daytime, and were in charge of special crews under special officers to see that they were carefully handled. They had on board a force of repair men for the purpose of making any temporary repairs that should become necessary for their movement in their defective condition. They picked up cars and set out cars at numerous stations along the line. The stations at which cars were set out were of two classes: First, the station for which the cargo was destined; second, when the cargo was destined for a station on a branch line the cars were set out at the terminus of that branch to be later hauled to the station for which they were destined. When the train involved in case 4861 started from Helper, it consisted of a caboose, 10 empties, and 1 loaded car. In the course of its journey it picked up at way stations 93 cars, set out 35 cars, and arrived at Salt Lake City with 58 cars. With the exception of 31 empties, all the cars handled in the train were loaded and proceeding in the direction of their final destination. The other train involved a similar state of facts, though the number of cars moved was not so numerous. The company kept a force of car repairers and equipment at the intermediate stations at Helper, Thistle, Provo, and Midvale; but its shops, with extensive facilities for making repairs, were maintained at the terminal at Salt Lake City. The intermediate points just mentioned were stations on the main line from which branch lines extended, and the repairs made at those points were chiefly confined to defects arising upon the branch lines. Foreign cars, and cars of the company becoming defective on the main line, were taken to such important repair points as Salt Lake City for repair. The company received pay for the loaded cars in these hospital trains, the same as if they had been moved in ordinary freight trains. It is also true, and that these cars could not be repaired until they had first been unloaded.

The answer of the carrier, and the recitals in the agreed statement, admit all the allegations in the complaints. The defense rests entirely upon the claim made in the answer that each hauling of the cars involved was for the purpose of repair; the defendant claiming that the particular circumstances set forth in the statement of facts furnished a justification for the movements in question under the proviso of section 4 of the Act of April 14, 1910. The proviso reads as follows:

'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 by section four of this act or section six of the act of March second, eighteen hundred and ninety-three as amended by the act of April first, eighteen hundred and ninety-six, 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 drawbars, in revenue trains or in association with other cars that are commercially used, unless such defective cars contain live stock or 'perishable' freight.'

The movement of a defective car is restricted by this proviso--

1. To what is 'necessary' for its repair. If it can be repaired where the defect is discovered, it cannot be moved at all in its defective condition. If the defect is such that it must be moved to repair it, the movement is restricted to what is necessary for the repair.

2. To hauling it from the point where the defect is first discovered to the nearest available point of repair. This and the first restriction, taken together, forbid every hauling or handling of the car for any other purpose than repair. It may not be handled for the purpose of delivering its load to the consignee, even when unloading is necessary for its repair, unless it be affirmatively shown that such delivery involves no more movement or handling of the car than unloading it or...