United States v. New York, N.H. & H.R. Co., 1488.

• Citation: 274 F. 321
• Decision Date: 29 June 1921
• Docket Number: 1488.
• Parties: UNITED STATES v. NEW YORK, N.H. & H.R. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

274 F. 321

UNITED STATES v. NEW YORK, N.H. & H.R. CO.

No. 1488.

United States Court of Appeals, First Circuit.

June 29, 1921

Alonzo H. Garcelon, Sp. Asst. U.S. Atty., of Boston, Mass. (Daniel J. Gallagher, U.S. Atty., of Boston, Mass., and Stacy H Myers, Sp. Asst. U.S. Atty., of Washington, D.C., on the brief), for the United States.

John L Hall, of Boston, Mass., for defendant in error.

Before BINGHAM and JOHNSON, Circuit Judges, and ALDRICH, District judge.

JOHNSON Circuit Judge.

In this action the United States sought to recover penalties provided for violations of the federal Hours of Service Act of March 4, 1907, c. 2939, Sec. 2, 34 Stat. 1416, Comp. Stat. Sec 8678, the material part of which is as follows:

'Provided, that no operator, train dispatcher, or other employee who by the use of the telegraph or telephone dispatches, reports, transmits, receives, or delivers orders pertaining to or affecting train movements shall be required or permitted to be or remain on duty for a longer period than nine hours in any twenty-four hour period in all towers, offices, places, and stations continuously operated night and day, nor for a longer period than thirteen hours in all towers, offices, places, and stations operated only during the daytime, except in case of emergency, when the employees named in this proviso may be permitted to be and remain on duty for four additional hours in a twenty-four hour period on not exceeding three days in any week.'

The defendant employed at its station at Marlboro Junction in the state of Massachusetts one Charles W. Crane as a telegraph operator. Two operators were employed by it at this station, which was one falling within the class of offices designated under the statute as 'continuously operated night and day,' although at certain hours it was closed. United States v. B. & M.R.R. (C.C.A.) 269 F. 89.

The question presented by the assignment of errors, is whether one of these operators, who went on duty at 4 o'clock p.m., and was not finally released from duty until 4 o'clock a.m., by reason of certain releases, during which time he was not required to stay at the station and was not subject to call, was employed more than 9 hours in the period of 24 hours upon 5 different days during the month of June, 1916.

Upon the days in question this operator went on duty at 4 p.m. and remained until from 7:20 to 7:27 p.m., when he was released from duty by the train dispatcher to return at periods varying on the different days from 8:35 p.m. to 9:20 p.m., during which time he was not subject to any call, nor required to remain upon the railroad premises, and could do what he chose with his time, which he employed, as he testified, sometimes in sleeping, sometimes in reading, and sometimes attending the theater. After this definite release he returned to his post and remained to an hour varying from 10 p.m. to 10:14 p.m., when he was again definitely released, under the same conditions, by the train dispatcher from service on 1 day until 12:15 a.m., and upon the other 4 days until 12:30 a.m., and after his return to duty at the end of the second period of release he remained on duty until 12:52 a.m. upon 2 of the days in question, 12:55 a.m. upon 2 others, and 12:58 upon the fifth, when he received a third release from duty until 3 o'clock a.m. upon two days, 3:05 a.m. upon the third day, 3:20 a.m. upon the fourth day, and 2:45 a.m. on the fifth day, and after his return to duty at the expiration of this release he remained at his post until 3:35 a.m. on one day, 3:58 a.m. upon the second day, 3:41 a.m. the third day, 4:10 a.m. the fourth day, and 3:55 a.m. the fifth day. Upon these days the aggregate of his actual service varied from 5 hours 13 minutes upon one day to 6 hours 9 minutes upon another, and his periods of release aggregated from 5 hours 46 minutes to 6 hours 41 minutes. If these periods of release are not to be deducted from his total hours of service, this telegraph operator was on duty nearly 12 hours out of the 24-hour period upon the days in question, and he received pay from the defendant company for the whole period of service.

The case was heard by the learned judge of the District Court without a jury, who has found that the release periods allowed to the operator should be deducted from his total hours of service, and that when he was released for a definite time by the train dispatcher he was not 'on duty'; that these interruptions in the service of the operator--

'were at a time when Crane did not require meals, but did require rest. They were unrestricted; they were opportune. Crane was not subject to call during each period; and, while he was not advised, on the day before, of his exact number of minutes of rest on the following day, he was advised by his experience that these periods were to present substantial opportunities for release, from an hour to more than 2 1/2 hours.

'Upon the testimony I am constrained to find that the times of release were of so substantial and definite a period that they clearly gave means of rest and recuperation. They were of a character which tended to prevent the dangers which arise to employees and to the public from continuing men in a hazardous occupation for a time so long and so indefinite as to render them unfit to give a service essential to their protection.

'Upon the testimony it cannot be said that Crane was, within the meaning of the statute, 'on...