United States v. Chesapeake & O. Ry. Co.

• Decision Date: 27 February 1914
• Docket Number: 1228.
• Parties: UNITED STATES v. CHESAPEAKE & O. RY. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

213 F. 748

UNITED STATES v. CHESAPEAKE & O. RY. CO.

No. 1228.

United States Court of Appeals, Fourth Circuit.

February 27, 1914

D Lawrence Groner, U.S. Atty., of Norfolk, Va., and Philip J Doherty, Sp. Asst. U.S. Atty., of Washington, D.C. (Hiram M Smith, Asst. U.S. Atty., of Richmond, Va., on the brief), for the United States.

David H. Leake, of Richmond, Va. (D. H. and Walter Leake, both of Richmond, Va., on the brief), for defendant in error.

Before PRITCHARD and WOODS, Circuit Judges, and DAYTON, District judge.

PRITCHARD Circuit Judge.

This action was begun by the United States on August 6, 1912, to recover $200 from the defendant in error, the Chesapeake &amp Ohio Railway Company, for violation of the Safety Appliance Act. The declaration contained two counts, the first count relating to a violation of the act in the use by the railway company of a New York, New Haven & Hartford Railroad car, No. 75,653, while the same was in a defective condition, and the second count relating to a Southern Railway car, as to which there is no controversy on this writ of error. The jury, by direction of the court, found against the United States as to the first count and for the United States as to the second count. A motion was made by the United States to set aside the verdict, which was overruled. (The interstate character of the railway and the cars in question is admitted.)

The evidence, so far as it relates to the first count of the declaration, as to which, as just stated, the jury found against the United States, briefly, is as follows:

Car No. 75,653 of the New York, New Haven & Hartford Railroad Company was brought into the Seventeenth Street yard of the Chesapeake & Ohio Railway Company at Richmond, Va., on February 29, 1912. This car formed part of a train which arrived at the yard about 3:15 p.m., and, on its arrival, was inspected by government inspectors, who found the chain at the 'B' end of the car connecting the lock and Climax Coupler broken, so that there was no connection between the uncoupling lever and the uncoupling mechanism, and, in its then condition, it was impossible to couple the car or open the coupler otherwise than by going in between the cars.

Shortly after this discovery by the inspectors the car was inspected by the railroad inspector located at the Seventeenth Street yard, and a bad order mark was placed on it, and it was thereupon switched from point to point several times, with a number of other cars and placed on different tracks. Late in the afternoon while it was standing on the track near the scales, Brakeman John Scott went in between the end of the defective car and another car for the purpose of raising the mechanism and separating it from the other car, shortly after which engine 44 was coupled to the car and pushed it down from the Seventeenth Street yard onto track No. 9, in the Broad Street yard; the trip consuming about ten minutes, the distance being about three-quarters of a mile. The car, both when it arrived at the Seventeenth Street yard and later in the day when it arrived at the Broad Street yard, was loaded with corn and sealed, and remained at the Broad Street yard from the 29th day of February until the 12th day of March, without having the repairs made, and on the latter date it was returned to the Seventeenth Street yard and shifted almost to the identical point which it had occupied when it was removed from there to the Broad Street yard, 12 days before, and was then and there repaired.

The witness for the railroad testified that a lock block and a new lock chain were required to make the repairs, and that such repairs could have been and were eventually made in about ten minutes; that it was not necessary to take the car to the shops; that there were more facilities for repairing the defects at the Seventeenth Street yard than at the Broad Street yard; and that the inspector who actually made the repairs, to wit, W. J. Gibson, intended, when he put the bad order mark on it, that it should be, as later it was, repaired at the Seventeenth Street yard.

At the conclusion of the evidence, both plaintiff and defendant moved for an instructed verdict, and the court instructed the jury to find a verdict for the defendant on the first count, and the case now comes here on writ of error.

It is contended by the defendant below that the following proviso in the amendment of 1910 exempts it from liability in this instance:

'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

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