United States v. Great Northern Ry. Co.

• Decision Date: 14 February 1916
• Docket Number: 2636.
• Citation: 229 F. 927
• Parties: UNITED STATES v. GREAT NORTHERN RY. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

229 F. 927

UNITED STATES v. GREAT NORTHERN RY. CO.

No. 2636.

United States Court of Appeals, Ninth Circuit.

February 14, 1916

Francis A. Garrecht, U.S. Atty., of Spokane, Wash., and Philip J Doherty and M. C. List, Sp. Asst. U.S. Attys., both of Washington, D.C.

Charles S. Albert and Thomas Balmer, both of Spokane, Wash., for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

An action consisting of 12 counts was brought against the defendant in error to recover penalties for violations of the Safety Appliance Act approved March 2 1893, c. 196, 27 Stat. 531, as amended by Act April 1, 1896 c. 87, 29 Stat. 85, and by Act March 2, 1903, c. 976, 32 Stat. 943. It was alleged that the defendant ran on its line of railroad, in interstate commerce, certain freight trains drawn by its own locomotive engines, but that at times the speed of the trains was controlled by brakemen who were required to use common hand brakes for that purpose. There was a stipulation between the parties that each engine was equipped with a power driving wheel brake and appliances for operating a train brake system; that in each train not less than 85 per cent. of the cars therein were equipped with power or train brakes, which were used and operated by the engineer of the locomotive drawing such train to control its speed, in connection with the hand brakes. The court below sustained a demurrer to the complaint, on the ground that none of the counts therein set forth facts sufficient to constitute an offense against the United States.

The statute of March 2, 1893, provides:

'That from and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving wheel brake and appliances for operating the train brake system, or to run any train in such traffic after said date that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose.'

The amendment of April 1, 1896, imposes a penalty upon any such common carrier--

'using any locomotive engine, running any train, or hauling or permitting to be hauled or used on its line any car in violation of any of the provisions of this act.'

The amendment of March 2, 1913, provides (section 2):

'That whenever, as provided in said act, any trains operated with power or train brakes, not less than fifty per centum of the cars in such train shall have their brakes used and operated by the engineer of the locomotive drawing such train; and all power braked cars in such train which are associated together with said fifty per centum shall have their brakes so used and operated.'

The act gave the Interstate Commerce Commission authority from time to time to increase the minimum percentage of cars in any train required to be operated with power, or train brakes, and at the time of the acts complained of the percentage of cars required to have their brakes used and operated by the engineer of the locomotive drawing the train had been increased to 85.

The court below construed the acts and amendments thereto as permitting the use of hand brakes in connection with the specific power brakes referred to in the act. The plaintiff assigns error to that construction, and contends that it was the intention of the act to require that the movement of all such trains must be controlled by power brakes, and that no brakeman should be required to use hand brakes. We have carefully considered the questions involved, and have reached these conclusions: First. Aside from the language of the act and the amendments, there is external evidence that it was the intention of Congress thereby to make it unlawful to require brakemen to use hand brakes in the ordinary management and movement of freight trains in interstate commerce. This is shown by the title of the act and the reports of committees during the passage of the bill through Congress. The title of the act is:

'An act to promote the safety of employes 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.'

The House Committee on Interstate Commerce, in its report on the bill, after referring to the number of train hands killed in falling from trains and engines, said:

'It is the judgment of this committee that all cars and locomotives should be equipped with automatic couplers, obviating the necessity of men going between the cars, and continuous train brakes that can be operated from the locomotive, and dispense with the use of men on the tops of the cars; that the locomotive should be provided with power driving wheel brakes, rendering them easy of control. The brakes now have to be largely operated by the brakemen, traveling over the tops of the cars by night and day, through sleet and rain, exposed to great danger of falling from the cars, or from overhead obstructions.'

The chairman of the committee which had charge of the bill in the Senate explained the bill by saying:

'When we get the cars of this country equipped with uniform couplers, with air brakes, so that the men will not be required to go between the cars, so that the men who are on top of the cars to-day will be taken off and thereby relieved from the danger of such positions, there will be no cause for any further legislation on the subject, in my judgment.'

The Interstate Commerce Commission also so understood the act. In its Eleventh Annual Report it said:

'The requirement, therefore, is not that a carrier shall equip its cars with the brake or the coupler, but that it shall not use in interstate traffic a train which is not controlled by the train brake.'

In its Thirteenth Annual Report the Commission, anticipating the time when the law should go into effect, said:

'The men will not then be obliged to use the tops of the cars for braking, nor to walk on the running boards. The freight train will be as completely under control of the engineer as passenger trains are at the present time.'

Second. The act by its terms expresses with sufficient certainty the intention of Congress that hand brakes shall not be used on freight trains in the ordinary movement of such trains in interstate commerce. By the act Congress adopted for freight trains the system of braking that was in use on passenger trains. It made no specific mention of the number of cars in a train that should be equipped with power brakes, but it enacted in general terms that the train should be sufficiently equipped to be run without requiring the use of the common hand brake. The clause 'without requiring brakemen to use the common hand brake,' as found in the first section of the act, is used in the same sense as the words 'without the necessity of men going between the ends of the cars,' in the second section, which provides for automatic couplers. The language of the act was equivalent to declaring that after the date named freight trains should not only be equipped to run, but should actually be run without requiring brakemen to use the common hand brake. No implication to the contrary is to be found in the provision in section 2 that all cars must be equipped with 'efficient hand brakes,' a provision which is ascribable to the necessity of controlling the movement of cars in yards and elsewhere, when trains have been broken up or are being made up. In an act, the express purpose of which is to relieve brakemen from the danger of using hand brakes, a...