United States v. Louisville & N.R. Co.

• Decision Date: 18 February 1909
• Docket Number: 1,796.
• Citation: 167 F. 306
• Parties: UNITED STATES v. LOUISVILLE & N.R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

167 F. 306

UNITED STATES v. LOUISVILLE & N.R. CO.

No. 1,796.

United States Court of Appeals, Sixth Circuit.

February 18, 1909

George Du Relle, for plaintiff in error.

T. K Helm, for defendant in error.

Before SEVERENS, Circuit Judge, and KNAPPEN and SANFORD, District judges.

SEVERENS Circuit Judge.

This is an action of debt brought by the United States in the District Court against the Louisville & Nashville Railroad Company to recover a penalty of $100 for the alleged violation of section 6 of the 'Safety Appliance Act' of March 2, 1893 (Act March 2, 1893, c. 196, 27 Stat. 532, as amended by Act April 1, 1896, c. 87, 29 Stat. 85 (U.S. Comp St. 1901, p. 3175)). The cause of action stated in the petition is that the defendant 'hauled a car with interstate traffic over its line of railroad in and about Louisville, in the state of Kentucky, within the jurisdiction of this court, when the coupling and uncoupling apparatus on the 'B' end of said car was out of repair and inoperative, the chain connecting the lock pin or lock block to the uncoupling lever being broken on said end of said car thus necessitating a man or men going between the ends of the cars to couple or uncouple them, and when said car was not equipped with couplers coupling automatically by impact and which could be uncoupled without the necessity of a man or men going between the ends of the cars, as required by section 2 of the safety appliance act, as amended by section 1 of the act of March 2, 1903. ' The defendant pleaded not guilty, and, further answering, made other averments, most of which were stricken out on motion of the district attorney, apparently because supposed irrelevant. Thereupon the attorneys for the parties made and filed a stipulation in writing, as follows:

'It is hereby stipulated that the law and facts of this case may be submitted to the court without the intervention of a jury, and a jury is hereby waived.'

The case came on for trial and was heard. The record states that the court 'delivered an opinion in writing, which is filed, and pursuant and upon consideration of the testimony heard in this cause, it is found, considered, and adjudged by the court that the defendant, the Louisville & Nashville Railroad Company, is not guilty of the charge and violation of law alleged against it in the plaintiff's petition, and said petition is dismissed for that reason'; and that the court declined to make a special finding of facts. A bill of exceptions was tendered and settled; and from this it appears that upon the trial it was--

'stipulated and agreed by the parties hereto that the facts in this case are as follows:

'Interstate Commerce Commission Inspectors Belknap and Coutts, on March 26, 1907, at Louisville, Kentucky, at 7:55 a.m., inspected C. & O. coal car No. 26,285, on track 13 Water-street yard of the defendant at which time the chain connecting the lock pin or lock block to the uncoupling lever was broken on the 'B' end of the car; to operate this coupler required a man to go between the cars.

'It was inspected and marked by the railroad inspector 'loose lift chain 3-26.'

'Engine 313 of the defendant was used to haul this in this condition to the siding of the Ewald Iron Company at 10:30 a.m., same date.

'This car contained pig iron consigned from the Kelly Nail & Iron Company, Ironton, Ohio, to Ewald Iron Company, Louisville, Kentucky.

'The defendant is a corporation organized and doing business under the laws of the state of Kentucky, and is a common carrier engaged in interstate commerce by railroad.

'It is further stipulated that witnesses for the defense will testify as follows:'

Here follows the testimony of several witnesses by question and answer concerning facts incident to the location of tracks, the inspection of the cars including this one, the time when the defect was discovered, and the measures taken for remedying it.

The plaintiff having brought the case here by a writ of error, the defendant moved to dismiss it upon the grounds:

'(1) That the proceeding is criminal, and the judgment of the District Court is not subject to review.

'(2) That as the District Court tried the case on the facts, without the intervention of a jury, its finding is not subject to review.'

The first of these is the only one which can be considered upon the motion to dismiss. The second is presented upon the consideration of the errors assigned, if the writ be not dismissed. Upon the question whether the judgment of the court below is subject to review, we think it is sufficient to refer to the opinion and decision of this court in the case of United States v. Baltimore & Ohio Southwestern Railway Company, 159 F. 33, 86 C.C.A. 223, and especially to what we said at pages 38 and 39 of 159 Fed., page 228 of 86 C.C.A., on petition for rehearing. It being a civil action and not a criminal proceeding, the party complaining of the judgment was entitled to remove the case to this court, as it has done. If, indeed, the violation of this act were a criminal offense, the trial by the judge was a void proceeding, for the Constitution of the United States declares that...