United States v. Atchison, T. & S. F. R. Co.
| Decision Date | 12 January 1921 |
| Docket Number | 5495. |
| Citation | 270 F. 1 |
| Parties | UNITED STATES v. ATCHISON, T. & S.F. RY. CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Roscoe F. Walter, Sp. Asst. U.S. Atty., of Washington, D.C. (Summers Burkhart, U.S. Atty., of Albuquerque, N.M., and J. O. Seth Asst. U.S. Atty., of Santa Fe, N.M., on the brief), for the United States.
William C. Reid, of Albuquerque, N.M., and Gardiner Lathrop, of Chicago, Ill. (James L. Coleman and Emmet Trainor, both of Chicago, Ill., on the brief), for defendant in error.
Before SANBORN and CARLAND, Circuit Judges, and MUNGER, District Judge.
The United States brought this action at law against the defendant railway company in 15 counts, to recover 15 penalties of $500 each, for requiring 5 of its employes on each of three trains to remain on duty continuously for more than 16 hours, in violation of the Hours of Service Act of March 4, 1907, 34 Stat. 1415, 1416, 1417 (U.S. Comp. Stat Secs. 8677, 8678, and 8679). The defendant answered that the detention in each case was caused by an unavoidable accident which was not and could not have been foreseen; that such accident caused a delay that was the result of a cause which was not known and could not have been foreseen by it, or its officers or agents in charge of the employes at the time the latter left the terminal. The parties to the action waived a jury; the case was tried by the court, which made special findings of facts, and rendered a judgment for the defendant. The plaintiff assigned 52 alleged errors, but an examination thereof discloses the fact that the assignment presents only 2-- Nos. 24 and 34-- which challenge any ruling reviewable by an appellate federal court.
No. 24 charges error in sustaining the objection to a cross-question addressed to F. L. Myers, superintendent of the defendant who on his direct examination had testified regarding the accident and delay of the train with engine No. 1655, which left Las Vegas at 11:45 p.m. on January 4, 1917, and arrived a Albuquerque on January 5, 1917. This was the train whose delay resulted in the alleged violation of the act of Congress set forth in the first 5 counts of the complaint. The cross-question was:
'Now, in regard to tying up crews at Lamy: Did you not, on January 11th, tie up Rathburn, engineer, Hayes, engineer at 9:10 p.m.?'
To this question counsel for the defendant objected on the ground that--
'That is a different transaction; different circumstances; would compel us to go into an entirely different case.'
No questions had been asked this witness on his direct examination, nor had he testified, about any transaction on January 11th, and it is too clear for discussion or comment that the court committed no error not to permit the plaintiff to enter upon the trial of such a second and different transaction.
The thirty-fourth specification of error is:
'The court erred in entering judgment for the defendant because the facts found do not support the judgment.'
But among the facts found by the court below and set down in its special findings were these: That the delays of the three trains on account of which the employes were detained in service more than 16 consecutive hours were caused by unavoidable accidents, which were the results of causes not known to the carrier or its officers or agents in charge of the employes at the times they respectively left the terminals; that these causes and accidents could not have been foreseen; that the detention of these employes on these trains on duty more than 16 hours was caused wholly by these accidents; and that the keeping of them on duty for more than 16 consecutive hours could not have been avoided by the defendant by the exercise of reasonable diligence after the respective accidents. It is clear that the facts thus found would have been fatal to any judgment for the plaintiff, and they are not insufficient to sustain the judgment for the defendant. The other alleged errors which counsel for the United States assign and discuss relate to matters not reviewable by this court in this case.
The question whether or not the evidence was sufficient to sustain the special findings of facts, or any of them, or the judgment itself is not reviewable...
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