United States v. Atlantic Coast Line R. Co.

• Decision Date: 21 May 1907
• Citation: 153 F. 918
• Parties: UNITED STATES v. ATLANTIC COAST LINE R. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

153 F. 918

UNITED STATES v. ATLANTIC COAST LINE R. CO.

United States District Court, E.D. North Carolina.

May 21, 1907

Harry Skinner, U.S. Atty., and Luther M. Walter, Asst. U.S. Atty.

Junius Davis and Geo. B. Elliott, for defendant.

PURNELL District Judge.

A bill was filed asking for penalties, 45 in number of $100 under each for violations of the act of March 2, 1893, known as the 'Safety Appliance Act' (Act March 2, 1893, c. 196 Sec. 1, 27 Stat. 531 (U.S. Comp. St. 1901, p. 3174)), as amended by Act April 1, 1896, 29 Stat. 85 and Act March 2 1903, c. 976, Sec. 1, 32 Stat. 943 (U.S. Comp. St. Supp 603). The bill of complaint alleges that defendant is a common carrier engaged in interstate commerce, and is a corporation organized and doing business under the laws of the states of Virginia, North Carolina, and other states having an office and place of business at South Rocky Mount in the state of North Carolina. Of the offenses made the basis of this suit, 41 were violations of section 2 of the act (defective couplings) and 4 were violations of section 4 (failure to have secure grab irons and handholds). The defendant has filed a demurrer to each count and sets up 9 specific grounds of demurrer. Only 3 general grounds were urged in support of the demurrer at the hearing:

First. That the complaint is defective, in that it alleges the violation 'on or about' a particular date, and one other adverted to, to wit, that the act of Congress is unconstitutional, but this position was not vigorously insisted on. A pleading in a civil suit need not be as precise in naming dates as when the prosecution is by indictment. It is provided by federal statute that, as to matters of practice and pleading, the courts of the United States shall conform as near as may be to the practice and pleadings and forms and mode of proceeding to the state courts. Rev. St. 914 (U.S. Comp. St. 1901, p. 684). It follows, therefore, that whether the petition is defective in the regard complained of depends upon the practice in the courts of North Carolina. Section 6 of the safety appliance act provides that the penalty for a violation of the act shall be $100, 'to be recovered in a suit or suits to be brought by the United States district attorney in the District Court of the United States having jurisdiction in the locality where such violations shall have been committed. ' This is an action in debt. United States v. Southern Railway Company, 135 F. 122. The rule in North Carolina is that in cases of this nature the naming of a specific date is not necessary in stating the cause of action in the complaint. In Lumber Co. v. Railroad, 141 N.C. 171, 53 S.E. 823, it was held that in a suit to recover penalties against a defendant on account of discriminating in overcharges on shipments of logs it was sufficient to locate the time of shipments between the 15th day of November, 1898, and the 30th day of April, 1901, inasmuch as the defendant could ask for a bill of particulars. The defendant is clearly put upon its defense. The number of the car and nature of the traffic and the date given in each count sufficiently advise the defendant of the time of the violation, so that it can intelligently prepare its defense. This is sufficient.

Second. Complaint does not negative proviso in section 6. Another ground urged in support of the demurrer is that the complaint does not allege that the cars mentioned in the various causes of action were not four-wheel cars or eight-wheel standard logging cars. The Supreme Court of the United States in the case of Schlemmer v. B.R. & P. Ry. Co. (October term, 1906, decided March 4, 1907) 27 Sup.Ct. 407, 51 L.Ed. . . . , says on that point, Justice Holmes delivering the opinion:

'A faint suggestion was made that the proviso in section 6 of the act that nothing in it shall apply to trains composed of four-wheeled cars was not negatived by the plaintiff. The fair inference from the evidence is that this was an unusually large car of the ordinary pattern; but, further, if the defendant wished to rely upon this proviso, the burden was upon it to bring itself within the exception. The word 'provided' is used in our legislation for many other purposes besides that of expressing a condition. The only difference expressed by this clause is that four-wheeled cars shall be excepted from the requirements of the act. In substance, it merely creates an exception which has been said to be the general purpose of such clauses. Baird Case. 194 U.S. 25, 36, 37, 24 Sup.Ct. 563, 48 L.Ed. 860, 865, 866. ' The general rule of law is that a proviso carves special exceptions only out of the body of the act; and those who set up any such exception must establish it.' The rule applied to construction is applied equally to the burden of proof in a case like this.'

Another ground urged in support of the demurrer is that the complaint does not allege that the defect was discovered, or could by reasonable inspection have been discovered, so that the car could have been repaired before it was hauled or moved, as alleged in the complaint. This precise question-- that is, whether, in order to establish a violation of the safety appliance act, it is necessary or incumbent upon the plaintiff to show that the defendant had not used due care or ordinary diligence in making an inspection and in repairing such defects as that inspection may have shown to exist-- is one of the most important which has yet arisen in the enforcement of the safety appliance act. If the contention of the defendant in this respect be correct, then a restriction has been placed upon the provisions of the act, which will seriously hamper the government in its efforts to enforce the provisions of the statute. The title of the act of March 2, 1893, is:

'An act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving wheel brakes, and for other purposes.'

By section 1 of the act it is made unlawful for a carrier engaged in interstate commerce by railroad to use a locomotive engine not equipped with power driving-wheel brakes and appliances for operating the train brake system. By section 2 it is made unlawful to use a car not equipped with automatic couplers. By section 4 it is made unlawful to use a car not provided with secure grab irons or handholds. By section 5 it is made unlawful to use a car whose drawbars do not conform to the standard height. By section 6 it is provided that the United States shall have a right of action to recover a penalty from the common carrier using, hauling, or permitting to be hauled or used on its line 'any car in violation of any of the provisions of this act.

' By section 8 it is provided that, whenever an employe is injured by 'any locomotive, car, or train in use contrary to the provision of this act,' he shall not be deemed to have assumed the risk occasioned by such use of the locomotive, car or train. In other words, whenever a carrier uses a car in violation of the provisions of the act, the United States shall have a right to the penalty of $100, and the injured employe shall be protected from the defense of 'assumption of risk.' There are therefore two penalties fixed upon the carrier. One is the $100 payable to the United States, and the other is the denial of assumption of risk as a defense when sued by an injured employe. The primary test as to whether the two penalties should be applied is the same in each instance, viz., Was the car used in violation of the provisions of the act? The United States can recover the penalty of $100 under all circumstances where the injured employe has the benefit of the denial of the doctrine of 'assumption of risk' as a matter of defense by the carrier.

One of the first cases arising under the safety appliance act was that of an injured employe, decided by the Circuit Court of Appeals for the Eighth Circuit, wherein certain conclusions as to the provisions of the act were announced by that court. Johnson v. Southern Pacific Railway, 117 F. 462, 54 C.C.A. 508. The facts in that case were as follows: The defendant, Southern Pacific Railway Company, was an interstate common carrier by railroad, operating trains between San Francisco, Cal., and Ogden, Utah. In the course of its operations it had occasion to run as a part of the equipment of a certain passenger train a dining car which, at a certain station in the state of Utah, was left on a side track to be picked up and returned to its initial terminal by a west-bound train of the same company. For the convenient execution of the return movement, Johnson, a brakeman in the employ of the defendant company, undertook, under orders, to couple one of the defendant's engines to said dining car for the purpose of taking it to a neighboring turntable, to be there turned around and placed in position to resume its return journey. The engine was equipped with power driving-wheel brakes and also with a Janney coupler, and the dining car was equipped with a Miller coupler. Each of these couplers was a so-called 'automatic' or 'safety' coupler, which would couple by impact with couplers of its own type, but the two would not couple by impact with each other because of differences in construction or type. Johnson knew that the couplers would not couple automatically, and he undertook to make the coupling by using a link and pin. To make the coupling in such manner it was necessary for him to go between the ends of the engine and the dining car, and he did so. Two attempts to make the coupling failed, and in the course of the third attempt his hand was crushed so that it became necessary to...