United States v. Denver & R. G. R. Co.

• Decision Date: 01 May 1912
• Docket Number: 126.
• Citation: 197 F. 629
• Parties: UNITED STATES v. DENVER & R.G.R. CO.
• Court: U.S. District Court — District of New Mexico

197 F. 629

UNITED STATES v. DENVER & R.G.R. CO.

No. 126.

United States District Court, D. New Mexico.

May 1, 1912

Syllabus by the Court

S. B Davis, Jr., U.S. Atty., and Monroe C. List and P. J. Doherty Sp. Asst. U.S. Attys.

E. N Clark and A. C. Campbell, both of Denver, Colo., and Renehan & Wright, of Santa Fe, N.M., for defendant.

POPE District Judge.

This suit is brought by the government under section 2 of the Hours of Service Act of March 4, 1907 (34 Stat. 1415), which, so far as here material, reads as follows:

'Sec. 2. 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 again to go on duty until he has had at least ten consecutive hours off duty.'

The complaint is in four counts, the first three arising from the hours of service of the conductor and two brakemen of a freight train crew, and the fourth from the service of a telegraph operator. The liability of the company for the overservice of the last is not questioned on the argument. The controversy is as to whether the railroad is liable because of the hours of service of the train crew. The state of the record as to the controlling facts is fairly stated in the brief for the railroad as follows:

On November 10, 1910, the three members of the crew were called to take charge of a freight train leaving Alamosa, Colo., for Chama, N.M., at 4:20 p.m. There was a rule of the company requiring the train crews to report for service 30 minutes before leaving time, and, pursuant to this, each person was at the point from which the train departed 15 minutes prior to 4:20 p.m., and thus at 4:05 p.m. The pay of the trainmen began, however, only at 4:20 p.m., the leaving time. The train actually left at 4:30 p.m. Between Alamosa and Chama the train was delayed at Osier station 55 minutes, awaiting the arrival of east-bound train No. 442. During this period it was on a side track with the headlight out and the switch locked. The brakemen spent a part of this waiting time asleep, the conductor in reading. They, however, were paid for this period the same as for actual running. The train arrived at Chama at 8:15 a.m., November 11, 1910, at which time the trainmen were relieved of all responsibility for the train.

It will thus be noted that this relief from duty occurred 15 hours and 45 minutes from the hour of leaving, and 16 hours and 10 minutes from the hour at which the crew reported for the trip. At 4:45 p.m. on November 11, 1910, and thus less than 10 hours-- or, to be more exact, 8 hours and 30 minutes-- from the expiration of the previous service the same crew was sent out on another trip. The suit is based upon the utilizing of the crew for further service when less than the 10 hours required by the statute above quoted had elapsed since a 16-hour service. The case turns, first, upon whether in computing the 16-hour period, the preparatory service of 15 minutes is included; and, second, whether the 55-minute stop at Osier broke the continuity of the service, so that after all it did not include as much as 'sixteen consecutive hours.' In other words, the decisive question is whether the crew was 'on duty' during both of these periods. It is doubtful if any definition of the words 'on duty' can be clearer than the words themselves. Manifestly, however, they mean to be either actually engaged in work or to be charged with present responsibility for such should occasion for it arise. Tested by this definition, the crew during the preparatory 15 minutes was clearly on duty. They were at the starting point pursuant to a rule of the defendant company requiring them to be there. They were engaged in work necessary to the trip. The conductor, according to the proofs, was getting his bills and orders, the brakemen were looking over the train to detect defective cars and equipment and in going to the roundhouse to bring the engines and to couple them to the train. With all of these unperformed the train could not have moved. With some unperformed the train would probably have moved only to destruction for lack of orders or of safe equipment. These duties were quite as important as those after the train started, and, contrary to what counsel contend, impress us as constituting quite as...