Southern Pac. Co. v. United States

• Decision Date: 23 February 1915
• Docket Number: 2463.
• Citation: 222 F. 46
• Parties: SOUTHERN PAC. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

222 F. 46

SOUTHERN PAC. CO. v. UNITED STATES.

No. 2463.

United States Court of Appeals, Ninth Circuit.

February 23, 1915

Francis M. Hartman, of Tucson, Ariz., and Charles J. Heggerty and Knight & Heggerty, all of San Francisco, Cal., for plaintiff in error.

Thomas A. Flynn, U.S. Atty., of Phoenix, Ariz., and Philip J Doherty, Sp. Asst. U.S. Atty., of Washington, D.C.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge.

The complaint filed in this case contains 12 counts. The first 6 only are involved in the present controversy. It is charged in the complaint that the defendant is a common carrier; that in violation of the act of Congress, entitled 'An act to promote the safety of employes and travelers upon railroads by limiting the hours of service of employes thereon,' approved March 4, 1907 (34 Stat. 1415), the defendant beginning at the hour of 5:30 a.m. on December 21, 1912, upon its line of railroad between the stations of Lordsburg, in the state of New Mexico, and Benson, in the state of Arizona required and permitted the conductor, B. T. Sullivan, the engineer, Billy F. Eaker, the fireman, Frank H. Kempf, and three trainmen, W. E. Brown, H. F. Peacock, and C. G Harrison on regular local freight train extra west, drawn by locomotive engine No. 2813, engaged in interstate traffic, to be and remain on duty for a longer period than 16 consecutive hours. The defendant's answer denied any violation of the act of Congress.

The case was tried before the court and a jury. At the close of the evidence the plaintiff moved for a directed verdict in its favor upon each of the causes of action here involved. A similar motion was made by the defendant, with the further request that, in case such motion be denied, it have leave to go to the jury. The motion of the plaintiff was granted, and that of the defendant, including the motion for leave to go to the jury, was denied. The rule that, where each party asks the court for a peremptory instruction for a directed verdict in his favor, the proceeding is equivalent to a request for a finding of facts by the court, and, if the court directs the jury to find a verdict for one of the parties, both are concluded on the findings of fact (Beuttell v. Magone, 157 U.S. 154, 15 Sup.Ct. 566, 39 L.Ed. 654), is not applicable here, in view of the additional motion of the defendant that in case its motion for a directed verdict in its favor be denied it have leave to go to the jury. 9, 28 Sup.Ct. 607, 52 L.Ed. 931, 15 Ann.Cas. 70. The validity of the peremptory instruction in favor of the plaintiff must therefore depend upon whether the evidence was so undisputed, or was of such a conclusive character as would have made it the duty of the court to set aside the verdict, if the case had been given to the jury and a verdict returned in favor of the defendant. Empire State Cattle Co. v. Atchison Ry. Co., supra, 210 U.S. 1, 10, 28 Sup.Ct. 607, 52 L.Ed. 931, 15 Ann.Cas. 70.

'A case cannot properly be withdrawn from the consideration of the jury simply because, in the judgment of the court, there is a preponderance of evidence in favor of the party asking a peremptory instruction. If the facts are entirely undisputed or uncontradicted, or if, upon any issue dependent upon facts, there is no evidence whatever in favor of one party, or, what is the same thing, if the evidence is so slight as to justify the court in regarding the proof as substantially all one way, then the court may direct a verdict according to its view of the law arising upon such a case. ' Smith-Booth-Usher Co. v. Detroit Copper Mining Co., 220 F. 600, 136 C.C.A. 58.

Whether in the present case there was any testimony tending to show that the defendant had not in fact required or permitted the employes named to be and remain on duty for a longer period than 16 consecutive hours depends in part upon the construction of the statute. Section 2 of the act of March 4, 1907 (34 Stat. 1415), provides as follows:

'That it shall be unlawful for any common carrier, its officers or agents, subject to this act to require or permit any employe subject to this act to be or remain on duty for a longer period than sixteen consecutive hours, and whenever any such employe of such common carrier shall have been continuously on duty for sixteen hours he shall be relieved and not required or permitted to again go on duty until he has had at least ten consecutive hours off duty; and no such employe 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.'

There are two separate and distinct periods of duty provided for in this section. The first period is that referred to in the first clause of the section, and that period is designated as 'sixteen consecutive hours.' The second period is that referred to in the second clause of the section, and that period is designated as 'sixteen hours in the aggregate.' The purpose of the distinction in the two periods of duty is found in the following provision requiring succeeding periods of rest. When an employe has been continuously on duty for 16 hours, he must be relieved, and not required or permitted again to go on duty until he has had at least 10 consecutive hours off duty; and when he has been on duty 16 hours in the aggregate in any 24-hour period, he must not be required or permitted to continue or again go on duty without having at lease 8 hours off duty.

It is not charged that, after the periods of duty or service between Lordsburg and Benson, the employes were required or permitted to continue or again go on duty without having had the period of rest provided for in the statute. The complaint is that between these two stations, and between the hours of 5:30 a.m. December 21, 1912, and 12:40 a.m. December 22, 1912, there was a continuous duty for the employes, and in the performance of that duty they were required and permitted to be and remain on duty for a longer period than 16 consecutive hours. The defense is that, by reason of unavoidable delays in operating the train, the conductor and trainmen were released from duty at Bowie, an intermediate station, from 9:15 a.m. until 11:40 a.m. December 21st, and again from 1:20 p.m. to 2:20 p.m. on that date, and that the engineer and fireman were released from duty at the same station from 1:30 p.m. to 2:30 p.m., and again at Cochise at 10:29 p.m., when the release was final, and they were carried deadhead to Benson. It is claimed that the two periods of release of the conductor and trainmen at Bowie, aggregating 3 hours and 25 minutes, should be deducted from the total time, reducing the aggregate of the two periods of actual duty to 15 hours and 45 minutes, and that the release of the engineer and fireman of one hour at Bowie and their final release and discharge at Cochise at 10:29 p.m. should be deducted from the total time, reducing the aggregate of their periods of actual duty to 15 hours and 59 minutes.

The government contends that these deductions, other than the final release and discharge of the engineer and fireman at Cochise, cannot be made; that when a train crew starts with a train to a designated terminal, and has the duty of taking that train to such terminal, it remains on duty within the meaning of the statute, notwithstanding any...