Norfolk & W. Ry. Co. v. United States

• Decision Date: 04 March 1910
• Docket Number: 944.
• Parties: NORFOLK & W. RY. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

177 F. 623

NORFOLK & W. RY. CO. v. UNITED STATES.

No. 944.

United States Court of Appeals, Fourth Circuit.

March 4, 1910

This was an action of debt brought by the United States to recover penalties authorized by the safety appliance act. The declaration contained nine counts. Upon trial in the court below the plaintiff abandoned its claim to recover under the second count and dismissed it. Of the remaining counts, the first charged the railroad company with operating its freight car 21158 in interstate commerce with coupling apparatus out of repair and inoperative, contrary to section 2 of the original act as amended by section 1 of the act of March 2 1903. The second, third, fourth, fifth, and sixth counts charge the hauling by the company in a train containing interstate traffic its passenger cars numbered 512, 527, 547 and 524, respectively, without the same being equipped with the grab irons or handholds required by section 4 of the act as so amended. The seventh and ninth counts charge the hauling in a train wherein was a car engaged in interstate traffic, a Pullman parlor car, 'Blanche,' and a Pullman parlor car, 'Margaret,' respectively unequipped with such grab irons. The eighth count charges the company with hauling its passenger car 533 at the time engaged in interstate traffic without such equipment. Demurrer to the declaration and each count thereof was entered, overruled, and exception taken. The defendant plead the general issue and filed a specification of grounds of defense. The plaintiff filed 149 interrogatories, which, on motion of the defendant, were stricken out, to which action the plaintiff excepted. A trial resulted in a verdict and judgment for $800 for the plaintiff. Seventeen bills of exceptions were saved to defendant to the rulings of the court in admitting certain testimony and rejecting certain other, the giving of certain instructions, the refusal to give certain others, to the overruling of the demurrer and of motions to direct verdict for defendant, to set aside the verdict and grant a new trial, and to the rendering of judgment. The defendant has sued out this writ of error, and the plaintiff has sued out a cross-writ of error, assigning as basis therefor the action of the court in striking out the interrogatories filed by it and the refusal to require the production of certain documentary evidence.

Theodore W. Reath and Roy B. Smith (Robertson, Smith & Wingfield, on the brief), for Norfolk & W. Ry. Co.

Thomas L. Moore, U.S. Atty., and Phillip J. Doherty, Special Asst U.S. Atty. (Wade H. Ellis, Assistant to the Atty. Gen., and Samuel H. Hoge, Asst. U.S. Atty., on the brief).

Before GOFF and PRITCHARD, Circuit Judges, and DAYTON, District Judge.

DAYTON District Judge (after stating the facts as above).

Neither in brief nor oral argument has the cross-writ of error sued out by the United States been discussed by counsel. It may be assumed to have been abandoned, but, whether this be true or not, an examination of the record and the alleged errors assigned by it has fully convinced us that its grounds are without merit and it will be dismissed. Counsel for both sides in oral argument and in the very able briefs filed by them have reduced the errors assigned to five propositions.

First. Should the demurrer to the declaration have been sustained because it did not charge the appliance to be defective because of negligence and want of care on the part of the company?

Second. Did instruction No. 2 given by the court for the plaintiff in effect require of the defendant different appliances than those required by the safety appliance act?

Third. Does section 4 of the act, requiring grab irons, apply to passenger cars?

Fourth. Does this act reach or can it apply to cars containing domestic commerce not connected with or coupled to cars containing interstate commerce?

Fifth. Was it error to give instructions Nos. 4, 5, and 7 for the plaintiff, to the effect that the evidence of the company's inspector was negative, while that of the government's inspectors was positive, in character?

We will consider these questions in the order set forth. That the duties imposed upon railroad companies to equip their cars with the safety appliances required by these acts is an absolute one and relief from the penalty for noncompliance cannot be obtained by showing reasonable care and want of intentional violation we regard as fully determined by this court in Atlantic Coast Line R. Co. v. United States, 94 C.C.A. 35, 168 F. 175. Nothing need be, if indeed anything can be, added here to re-enforce the logic of that decision. It may be stated that in our judgment this ruling has been fully sustained and upheld in such cases as St. Louis, Iron Mt. R. Co. v. Taylor, 210 U.S. 281, 28 Sup.Ct. 616, 52 L.Ed. 1061; Southern Ry. Co. v. Carson, 194 U.S. 136, 24 Sup.Ct. 609, 48 L.Ed. 907; U.S. v. Colo. & N.W. R. Co., 85 C.C.A. (Eighth Circuit) 27, 157 F. 321, 15 L.R.A. (N.S.) 167; U.S. v. Atchison, T. & S.F. Ry. Co., 90 C.C.A. (Eighth Circuit) 327, 163 F. 517; U.S. v. Denver & R.G. Ry. Co., 90 C.C.A. (Eighth Circuit) 329, 163 F. 519; Chicago, M. & St. P. Ry. Co. v. U.S., 91 C.C.C.A. (Eighth Circuit) 373, 165 F. 423, 20 L.R.A. (N.S.) 473; Chicago, B. & Q. Ry. v. U.S., 95 C.C.A. (Eighth Circuit) 642, 170 F. 556; Chicago Junction Ry. Co. v. King, 94 C.C.A. (Seventh Circuit) 652, 169 F. 372; Wabash R. Co. v. U.S., 97 C.C.A. (Seventh Circuit) 284, 172 F. 864; Donegan v. Balto. & N.Y. Ry. Co., 91 C.C.A. (Second Circuit) 555, 165 F. 869; U.S. v. Southern Ry. Co. (D.C.S.D. Ill.) 135 F. 122; U.S. v. Phila. & R. Ry. Co. (D.C.E.D. Pa.) 160 F. 696; U.S. v. Wheeling & L.E. Ry. Co. (D.C.N.D. Ohio) 167 F. 198; U.S. v. Southern Ry. Co. (D.C.W.D.N.C.) 170 F. 1014.

In view of this great weight of authority with which we are in full accord and against which stands alone, so far as we can discover, the two opinions of the Circuit Court of Appeals for the Sixth Circuit in St. Louis & S.F.R. Co. v. Delk, 86 C.C.A. 95, 158 F. 931, and United States v. Illinois Central R.R. Co., 170 F. 542, 95 C.C.A. 628, we do not deem it incumbent upon us to certify the question to the Supreme Court as suggested by counsel, and especially so as that court has awarded a writ of certiorari in the Delk Case. We hold, therefore, that the court below did not err in overruling the demurrer to the declaration.

Did instruction No. 2 in effect require of the company different appliances than those required by the act? This instruction, which related especially to the freight car 21158 whose coupling appliance was charged in the first count to be defective, was:

'(2) In the second section of the statute it is provided as follows: ' * * * It shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.' The court instructs you that passing from one side of a train to the other by going over the couplers between the ends of the cars is 'going between the ends of the cars' within the meaning of the statute. The court also instructs you that the word 'necessity' as used in the second section of the statute does not mean absolute necessity, and also does not imply a physical impossibility of uncoupling except by going between the ends of the cars. The possibility of uncoupling by crawling under a car, or climbing over a car, or by going around the end of a train, does not prevent the existence of a 'necessity' within the meaning of the statute of men going between the ends of the cars in order to uncouple. if the uncoupling lever at either end of any car is so inoperative that it is necessary in order to uncouple to go between the cars, or to go around the train, or to climb over a car, or crawl under a car, or to climb over or crawl under the couplers, then such car is in such condition of disrepair that it is unlawful to use it in the movement of interstate traffic.'

That part of the instruction italicized is the part objected to, and it is insisted that, in effect, it charged the jury that an appliance must be furnished with a lever on both sides of each end of every car, thus requiring an appliance not designated by the act. It is suggested that it might be true that the coupling lever on one side could not be worked but the one on the other side could, and a perfectly safe way existed at the time for the brakeman to go across the top or platform of the car to use the other lever to work the same coupling, and that under such circumstances the company would have furnished exactly what the act requires, namely, an automatic coupler which could be operated by one of the levers without the necessity for men going between the ends of the cars. And yet it is insisted, under this instruction, such evidence would result in a fine for an offense purely imaginary, not designated or within the letter or spirit of the law. The four cases of Morris v. Duluth, S.S. & A. Ry. Co., 47 C.C.A. 661, 108 F. 747, Gilbert v. Burlington, C.R. & N. Ry. Co., 63 C.C.A. 27, 128 F. 529, Suttle v. Choctaw, O. & G.R. Co., 75 C.C.A. 470, 144 F. 668, and Union Pac. R. Co. v. Brady, 88 C.C.A. 579, 161 F. 719, are cited to show that it is negligence to go between the ends of cars merely because the coupling could not be worked by one of the levers if the coupling could have been operated by the other on the far side of the car from the brakeman.

It is to be noted that these four cases, all decided by the Circuit Court of Appeals for the Eighth Circuit, were cases wherein brakemen were seeking to recover for negligence on account of inoperative coupling...