United States v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 19 January 1907
• Docket Number: 1,953.
• Citation: 150 F. 442
• Parties: UNITED STATES v. ATCHISON, T. & S.F. RY. CO.
• Court: U.S. District Court — District of Colorado

150 F. 442

UNITED STATES v. ATCHISON, T. & S.F. RY. CO.

No. 1,953.

United States District Court, D. Colorado.

January 19, 1907

This action is for the recovery of $100 as a penalty for the violation of the safety appliance act, approved March 2 1893, c. 196, Sec. 2, 27 Stat. 531 (U.S. Comp. St. 1901, p 3174), and the amendments thereto (Act April 1, 1896, c. 87 29 Stat. 85 (U.S. Comp. St. 1901, p. 3175), and Act March 2 1903, c. 976, 32 Stat. 943 (U.S. Comp. St. Supp. 1905, p. 603)), in that, as alleged, the defendant 'hauled over its line of railway one car, to wit: S.W.S.C. 2511, used in moving interstate traffic * * * when the coupling and uncoupling apparatus on the A end of said car was out of repair and inoperative, the chain connecting the lock pin, or lock block, to the uncoupling lever being broken on said end of said car, thus necessitating a man, or men, going between the ends of the cars to couple or uncouple them, ' etc.

On the trial the following facts appeared: The car in question was a loaded freight car brought from Fierro, in the Territory of New Mexico, consigned to the C.F. & I. Co., at Minnequa, a suburb of Pueblo in the state of Colorado. The defendant brought it from the east in one of its freight trains, composed of about forty cars, arriving at its yards in Pueblo at about 7:30 p.m., March 30, 1906. This string of cars remained in its yards overnight. Immediately on arrival, four of defendant's servants, whose duties consist exclusively of inspecting cars on arrival, inspected this string of cars, two working from the rear and two from the front end of the train. These men were equipped, each with a long handle lantern made for that purpose, in order that the light might be placed under and between the cars, for the purpose of thoroughly inspecting their condition. They found no defect in this car, although defects in other cars were discovered and repaired. The next morning about eight o'clock, witnesses Ensign and Wright, acting in the discharge of their duties as government employes, discovered on this car the defect complained of. At that time there were about twenty cars in the string. These two witnesses remained with the car until about 11 a.m. The string of twenty cars was first moved to another part of the yards by the defendant, to what was called the 'rabbit' track, where they were cut in two, and the car in question, with several others attached to it, was then taken by the defendant to the transfer track for delivery to the C. & W.R.R., to be taken by it to Minnequa. On reaching the transfer track, one of the defendant's repair men discovered the broken chain in question and immediately repaired it. Shortly after it was repaired, joint inspectors employed by the defendant and other roads entering Pueblo, as was their custom, inspected this string of cars for the purpose of discovering defects, if any, before delivery to the C. & W. road. No defect was found by them on this car. as the one in question had been repaired shortly before they reached it. It did not appear from the evidence to what extent, if any, the car in question had been handled during the night of March 30th, and after it had been inspected on first reaching the defendant's yards. Neither did it appear that anyone was required to go between the cars to couple or uncouple them on account of the defect after it was discovered by the government's witnesses. The jury found a verdict for the defendant.

E. M. Cranston, U.S. Atty., and Luther M. Walters, for the United states.

Henry T. Rogers, for defendant.

LEWIS District Judge (after stating the facts).

The motion for a new trial is leveled against the instructions of the court; because, first, the jury were directed that the defendant was held to reasonable care and diligence in the inspection of its cars, and if it used such care, and did not discover the defect in question, it was not liable; and, second, the defendant was held to reasonable care in putting the coupling in good repair after it ascertained that it was out of repair.

The action seeks to recover a forfeiture. The statute, for the purposes now under consideration, is penal. Johnson v. So. Pac. Co., 196 U.S. 1, 17, 25 Sup.Ct. 158, 49 L.Ed. 363.

Counsel for the government insists that the defendant should be held to the letter of the act, and that, on proof of a defective coupling that will not operate as provided in the act, the liability of the defendant is absolute. In support of that contention he cites U.S. v. Southern Ry. Co. (D.C.) 135 F. 122. This rule makes the railway company an insurer of the workable condition of its couplers at all times-- indeed, at every instant; therefore, when a coupler becomes defective, as it must, it results in a race of vigilance between railroad employe and government agent as to who shall get there first. Indeed, the very act of repairing a defective coupler, which will not operate, makes a case and works a forfeiture. I have not been able to bring myself to this view. The act was passed for practical purposes. It does not assume the impossible, and lay a forfeiture against the laws of nature; for couplers must break.

The cases cited by Judge Humphrey in U.S. v. Southern Ry. Co., supra, are exceptional. They are departures from the general rule. They do not announce the better rule. They have been sharply criticised.

In Bishop on Statutory Crimes (2d Ed.), at section 1126, the author had under consideration statutes making it an offense to sell adulterated milk, and it is there said:

...