United States v. Kansas City Southern Ry. Co.

• Decision Date: 24 January 1913
• Citation: 202 F. 828
• Parties: UNITED STATES v. KANSAS CITY SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

202 F. 828

UNITED STATES v. KANSAS CITY SOUTHERN RY. CO.

United States Court of Appeals, Eighth Circuit.

January 24, 1913

Rehearing Denied March 29, 1913. [Copyrighted Material Omitted]

William J. Gregg, U.S. Atty., of Muskogee, Okl., and Philip J Doherty, Sp. Asst. U.S. Atty., of Washington, D.C.

James B. McDonough, of Ft. Smith, Ark. (S. W. Moore, of Kansas City, Mo., on the brief), for defendant in error.

Before HOOK and SMITH, Circuit Judges, and VAN VALKENBURGH, District judge.

VAN VALKENBURGH, District Judge.

This suit was brought against the Kansas City Southern Railway Company to recover penalties for violation of the act of Congress of March 4, 1907, known as the 'Hours of Service Law.' Chapter 2939, 34 Stat. 1415, 1416 (U.S. Comp. St Supp. 1911, pp. 1321, 1322). The complaint is in five counts in each of which the maximum penalty of $500 is prayed. In these several counts it is charged that five employes of defendant, a conductor, engineer, fireman, and two trainmen, were required and permitted to remain on duty for a period of 17 hours and 5 minutes, or 1 hour and 5 minutes in excess of the maximum of 16 hours provided by law. These violations are alleged to have been committed in connection with the running of one of defendant's freight trains between Mena, Ark., and Stilwell, Okl., on May 10 and 11, 1910. At the trial the following admission was made by defendant:

'It is admitted there was an hour and 35 minutes overtime for the engineer and fireman; the others were a few minutes less, but we admit they were in the employ over 16 hours, as claimed by the government.'

By its answer, as amended, defendant pleaded that the admitted delays were occasioned principally by coal that would not steam properly, although alleged to have been procured from mines producing good steaming coal, and to have been inspected before purchase. Additional causes of delay pleaded were the meeting of other of defendant's trains, switching, and cleaning fires. It is alleged that these causes were unknown and could not have been foreseen by the defendant, its officers, agents, or employes, at the time the train left the Menaterminal. Although the answer contained no such averments, evidence was admitted tending to show that a shaker rod connected with the grates of the engine, whereby these grates can be cleaned while the train is in motion, did not work properly, and that this made it necessary to clean the grates with a rod while the train was stationary; also, that the flues of the engine leaked, which caused a failure of steam.

It being conceded that the employes named had remained on duty for a longer period than 16 consecutive hours, substantially as charged, the defendant railway assumed the burden of discharging itself from liability therefor by seeking to bring itself within the following provision of the act:

'Provided, that the provisions of this act shall not apply in any case of casualty or unavoidable accident, or the act of God, nor where the delay was the result of a cause not known to the carrier, or its officer or agent in charge of such employe at the time said employe left a terminal, and which could not have been foreseen.'

The train in question left Mena 45 minutes later than its stated time; it reached Poteau still behind time, and there took on coal and water; it next proceeded to Spiro, where 30 minutes were consumed in cleaning the fire grates, and 35 minutes more in meeting other trains; at Gans, the next station specified, an hour was lost in meeting train No. 51; between Sallisaw and Windsor an hour and 10 minutes were lost because of the alleged failure of the engine to steam properly; at Windsor there was a delay of 50 minutes occasioned by meeting two other trains; the distance from Sallisaw to Bunch is 19 miles, and the time consumed in making this distance, exclusive of the 50 minutes lost at the intermediate station of Windsor, was 3 hours and 10 minutes. This slow time is charged principally to engine failure. From Bunch to Stilwell, the terminal, the distance is 14 miles; there then remained 57 minutes within which to make this distance within the 16-hour limit. The conductor, acting upon his own initiative, or the direction of the train dispatcher, reduced his tonnage by a little more than one-half and proceeded with the remaining cars to Stilwell. Because of further alleged engine failures an hour and 45 minutes were consumed in making this distance, and 30 minutes more elapsed before the crew were released. The following additional delays were encountered in the earlier stages of the trip: Twenty-five minutes for meeting an extra train; at Poteau, 30 minutes for weighing cars of lumber, 30 minutes for luncheon, and 20 minutes for taking on coal and water; at Panama, 15 minutes for switching and setting out cars. It is conceded that these additional delays were usual to operation and that defendant is entitled to no time credit therefor. It is claimed, however, that the 30 minutes consumed in cleaning fires at Spiro was due to the broken or bent condition of the shaker rod, which prevented the grates from being cleaned while the train was in motion, and that this, together with the engine failures due to leaking flues and poor steaming coal, was the proximate cause of the subsequent delays in meeting other trains; that the slow progress between stations was because of the faulty condition of flues and fuel. The court below was of opinion that the railway company had fully established its defense and directed a verdict in favor of the defendant.

The burden was upon the government to establish that the defendant had required or permitted its employes to remain on duty longer than 16 hours; this, being conceded, made a prima facie case. The excuses embodied in the proviso are separate and affirmative defenses (C., B. & Q.R. Co. v. U.S., 115 C.C.A. 193, 195 F. 241), which must be pleaded in the answer; and the burden is upon the defendant to sustain such allegations. Counsel for the railway company recognized this rule by the particularity with which they pleaded a latent defect in the coal, both at the outset and later by amendment, and also by assuming the burden of proof. If reliance was placed upon defects in the engine, such as a broken shaker rod and leaky flues, these defects should have been pleaded. The government should have been advised of the defenses it would be required to meet. The answer contains no such specific averments, and a general denial was insufficient for the purpose. It is contended, however, that court and counsel, by common consent, tried the case as though such alleged defects were embraced within the issues, and it is probably true that the record does not disclose any sufficiently specific objection to their consideration. Therefore, they will be treated as though set out in the answer.

Of a closely analogous statute-- the Safety Appliance Law-- the Supreme Court, in Johnson v. Southern Pacific Co., 196 U.S. 1, loc. cit. 17, 25 Sup.Ct. 158, 161 (49 L.Ed. 363) has said:

'The primary object of the act was to promote the public welfare by securing the safety of employes and travelers, and it was in that aspect remedial, while for violations a penalty of $100, recoverable in a civil action, was provided for, and in that aspect it was penal. But the design to give relief was more dominant than to inflict punishment, and the act might well be held to fall within the rule applicable to statutes to prevent fraud upon the revenue, and for the collection of customs; that rule not requiring absolute strictness of construction. (Citing cases.)

'Moreover, it is settled that, 'though penal laws are to be construed strictly, yet the intention of the Legislature must govern in the construction of penal as well as other statutes; and they are not to be construed so strictly as to defeat the obvious intention of the Legislature.' United States v. Lacher, 134 U.S. 624 (10 Sup.Ct. 625, 33 L.Ed. 1080).'

This law was passed to meet a condition of danger incidental to the working of railroad employes so excessively as to impair their strength and alertness. It is highly remedial, and the public, no less than the employes themselves, is vitally interested in its...