Jones v. Louisville & N.R. Co.

• Citation: 209 S.W. 350,183 Ky. 409
• Parties: JONES v. LOUISVILLE & N. R. CO.
• Decision Date: 28 February 1919
• Court: Kentucky Court of Appeals

209 S.W. 350

183 Ky. 409

JONES v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

February 28, 1919

Appeal from Circuit Court, Bullitt County.

Action by Will Jones against the Louisville & Nashville Railroad Company. Demurrer sustained to amended petition, and plaintiff appeals. Affirmed.

C. P Bradbury, of Shepherdsville, for appellant.

J. F Combs, of Shepherdsville, and Moorman & Woodward and Benjamin D. Warfield, all of Louisville, for appellee.

QUIN J.

The appellant, Will Jones, was a section hand employed by the appellee, and at the time complained of in the petition was engaged in sweeping snow from the switches connected with the tracks in the company's yards at Shepherdsville, Ky. and which include the main tracks of the appellee. Appellant alleges that he was required by the company to work for a period of 24 hours on January 13, 1917, in violation of what is known as the Hours of Service Act, passed by the federal Congress March 4, 1907 (34 Stat. 1415, c. 2939 [U. S. Comp St. Supp. 1911, p. 1321; U.S. Comp. St. §§ 8677-8680]), and that while so engaged, on account of the excessive number of hours he was required to labor, his feet were frozen, and he was permanently injured. The lower court sustained a demurrer to the petition as amended, and plaintiff has taken an appeal to this court.

In the first section of the act referred to is this language:

"* * * And the term 'employés' as used in this act shall be held to mean persons actually engaged in or connected with the movement of any train."

Section 2 is as follows:

"That it shall be unlawful for any common carrier, its officers or agents, subject to this act to require or permit any employé subject to this act to be or remain on duty for a longer period than sixteen consecutive hours, and whenever any such employé of such common carrier shall have been continuously on duty for sixteen hours he shall be relieved and not required or permitted again to go on duty until he has had at least ten consecutive hours off duty; and no such employé who has been on duty sixteen hours in the aggregate in any twenty-four hour period shall be required or permitted to continue or again go on duty without having had at least eight consecutive hours off duty: Provided, that no operator, train dispatcher, or other employé who by the 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, nor for a longer period than thirteen hours in all towers, offices, places, and stations operated only during the daytime, except in case of emergency, when the employés named in this proviso may be permitted to be and remain on duty for four additional hours in a twenty-four hour period on not exceeding three days in any week: Provided further, the Interstate Commerce Commission may after full hearing in a particular case and for good cause shown extend the period within which a common carrier shall comply with the provisions of this proviso as to such case."

In section 3 it is provided that the provisions of the act shall not apply to the crews of wrecking or relief trains.

The Employers' Liability Act of 1906, which was approved June 11, 1906 (34 Stat. at Large, 232, c. 3073), embraced and included "any employé of an interstate carrier." Many cases have come before this, and other courts, seeking a construction of said last-named statute, as to its applicability to certain named employés, and it has been held to embrace practically every class of persons employed by an interstate carrier, the test being that the employé received his injury "while engaged in interstate commerce for the company." A very full discussion of those embraced in the act will be found in Probus v. I. C. R. R. Co., 181 Ky. 7, 203 S.W. 862.

In the Employers' Liability Cases, 207 U.S. 463, 498, 28 S.Ct. 141, 145 (52 L.Ed. 297), in discussing the act of 1906, Mr. Justice White said:

"Thus the liability of a common carrier is declared to be in favor of 'any of its employés.' As the word 'any' is unqualified, it follows that liability to the servant is coextensive with the business done by the employers whom the statute embraces; that is, it is in favor of any of the employés of all carriers who engage in interstate commerce. This also is the rule as to the one who otherwise would be a fellow servant, by whose negligence the injury or death may have been occasioned, since it is provided that the right to recover on the part of any servant will exist, although the injury for which the carrier is to be held resulted from 'the negligence of any of its officers, agents or employés.' "

In construing this Employers' Liability Act of 1906, together with the amendments thereto, the court, in Hardwick v. Wabash R. Co., 181 Mo.App. 156, 168 S.W. 328, held that an employé of the company who was doing the same character of work as the appellant in this case was engaged in interstate commerce, and therefore within the act.

It is clear, however, from a reading of the two statutes that Congress intended by the Hours of Service Act to restrict and limit the persons to be affected by it, by confining its provisions to those employés or persons "actually engaged in or connected with the movement of any train." This fact is emphasized by the provision in section 2 relative to operators, same being limited to operator, train dispatcher, "or other employé who by the use of the telegraph or telephone dispatches, reports, transmits, receives or delivers orders pertaining to or affecting train movements."

In discussing the difference between the two statutes above referred to this court, in L. & N. R. R. Co. v. Walker's Adm'r, 162 Ky. 209, 172 S.W. 517, thus states:

"The federal Hours of Labor Act, making it unlawful for any carrier to permit an employé subject to the act to be or remain on duty for a longer period than 16 consecutive hours, defines employés as 'persons actually engaged in or connected with the movement of any train.' Osborne's Adm'r v. C., N. O. & T. P. Ry. Co., 158 Ky. 176 [164 S.W. 818, Ann.Cas. 1915D, 449]. But the Federal Employers' Liability Act, providing that the common carriers subject to the act shall 'be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employés of such carrier, * * *' does not undertake to define the meaning of the word 'employed' as used in the act, or to describe, except as indicated, the employés to whom the act applies."

In Osborne's Adm'r v. C., N. O. & T. P. Ry. Co., 158 Ky. 176, 164 S.W. 818, Ann.Cas. 1915D, 449, plaintiff's decedent was a brakeman in the employ of the railway company. The main question involved in this case related to the actual time that decedent was on duty, but after referring to rule No. 74, promulgated by the Interstate Commerce Commission, relative to employés deadheading on trains, the court, in answering the argument that, although Osborne did not have any duties to perform in connection with the movement of the train on which he was riding or the movement of any other train, he was nevertheless on duty in the sense that he was acting under the orders and directions of a superior, and did not have the full and free opportunity contemplated by the statute to take subject to his own volition the rest allowed, says:

"There is much force in this position, and if the act permitted us to do so we would be disposed to say that an employé was engaged in service when he was acting under the orders and directions of a superior, although these orders or directions might not impose upon him the performance of any particular duty in connection with the movement of any train. But the act is not fairly susceptible of this construction. In carefully chosen words it describes an employé as a person who is 'actually engaged in or connected with the movement of any train,' and the hours of service feature of the act only apply to such a described person. Manifestly Osborne was not actually engaged in or connected with the movement of the train on which he was 'deadheading,' because the uncontradicted evidence is that he had no duties of any kind or character to perform in connection with the movement of this train, and was not charged with any responsibility in relation thereto; nor could he have been engaged in or connected with the movement of the train on which he was to leave Oakdale at 6:15 a. m. the following morning, for the train on which he was riding as a 'deadhead' reached Oakdale at 12:45, and the train on which he was a brakeman was not due to leave there until 6:15 a. m. The hours of service he was engaged in did not begin when he was ordered to 'deadhead' any more than they did when he was called at 5:30 a. m. to leave his boarding house. The plain reading of the act forbids its application to an employé who is not actually engaged in or connected with the movement of any train, and the railroad company does not violate the act, nor does the employé come within its protecting provisions, unless it be shown that he was actually engaged in or connected with the movement of the train in the manner we have described for a longer period than the act allows without having the rest allowed by the act."

What then is meant by the movement of any train? Webster's International Dictionary thus defines the word "movement":

"Act of moving; change of place, position, or posture;

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