Southern Pac. Co. v. United States

• Decision Date: 05 December 1927
• Docket Number: No. 7893.,7893.
• Parties: SOUTHERN PAC. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

23 F.2d 61 (1927)

SOUTHERN PAC. CO. v. UNITED STATES.

No. 7893.

Circuit Court of Appeals, Eighth Circuit.

December 5, 1927.

E. R. Wright, of Santa Fé, N. M. (Guy V. Shoup, of San Francisco, Cal., and Del W. Harrington, of El Paso, Tex., on the brief), for plaintiff in error.

H. S. Bowman, Asst. U. S. Atty., of Santa Fé, N. M. (John W. Wilson, U. S. Atty., of Albuquerque, N. M., and M. C. List, Sp. Asst. U. S. Atty., of Washington, D. C., on the brief), for the United States.

Before LEWIS, Circuit Judge, and POLLOCK and SCOTT, District Judges.

SCOTT, District Judge.

This action was brought by the United States against the Southern Pacific Company in the District Court of the United States for the District of New Mexico, under the act of Congress known as the Safety Appliance Act, approved March 2, 1893, as amended by the acts approved April 1, 1896, March 2, 1903, and April 14, 1910 (45 USCA § 1 et seq.; Comp. St. § 8605 et seq.), to recover the penalty therein provided. Briefly stated, the violation complained of is that the defendant is a common carrier engaged in interstate commerce by railroad in the state of New Mexico, and that it hauled its car B. I. G. X. tank No. 109, over a part of a highway of interstate commerce, viz. over its line of railroad from Duran, N. M., toward Tucumcari, in said state, when the coupling and uncoupling apparatus on the B end of said car was out of repair and inoperative; the uncoupling lever being disconnected from lock lift of coupler, thus necessitating a man going between the ends of the cars to couple or uncouple them. The defendant answered, pleading substantially the facts later agreed to and found. A jury was waived as provided by law, and the case tried to the court. The facts were stipulated, and the stipulated facts found by the court, and the court as a conclusion of law found that the defendant had violated the Safety Appliance Act and assessed penalty in the sum of $100. The defendant brings the case here on error.

From the record thus made up it appears: That the defendant is a common carrier engaged in interstate commerce in the state of New Mexico, and operates a line of railway from El Paso, Tex., to and through Carrizozo, N. M., to Tucumcari, N. M. That Carrizozo is a division point and freight terminus, where freight cars and tank cars are inspected and repaired. That Tucumcari is a division point and freight terminus 187 miles from Carrizozo, where freight cars and tank cars are inspected and repaired. That Duran, intermediate Carrizozo and Tucumcari, is a division point, but where inspectors and repair facilities are not maintained. That Pastura is intermediate Duran and Tucumcari. That the train and crew in question left Carrizozo early in the morning of October 13, 1926, reached Duran, a distance of 70 miles, where it stopped 11 minutes and changed engines and train crews, and proceeded onward toward Tucumcari. That while the train was stopped at Duran it was inspected by two Interstate Commerce Commission inspectors and the defect described found to exist. That the inspectors did not notify the train crew. It was not their duty to do so. Chicago, B. & Q. Ry. Co. v. United States (C. C. A.) 211 F. 12. When the train reached Pastura it was delayed, and inspected by the train crew, and a member of the train crew discovered the defect described. Acting under his instructions, "he immediately repaired the defect in question, taking only a minute or two for such work, and thereafter the car continued its journey in said train to Tucumcari in good condition."

The Safety Appliance Act as originally approved March 2, 1893, in section 2 (45 USCA § 2; Comp. St. § 8606), reads as follows: "That on and after the first day of January, eighteen hundred and ninety-eight, 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."

By the Act of March 2, 1903 (45 USCA §§ 8-10; Comp. St. § 8613-8615), the provisions of the original act were made to apply to all cars used on any railroad engaged in interstate commerce. On April 14, 1910, the act was again amended, and in section 4 (45 USCA § 13; Comp. St. § 8621) appears the following proviso: "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, * * * if such movement is necessary to make such repairs and such repairs cannot be made except at such repair point; and such movement or hauling of such car shall be at the sole risk of the carrier, and nothing in this section shall be construed to relieve such carrier from liability in any remedial action for the death or injury of any railroad employee caused to such employee by reason of or in connection with...