United States v. Northern Pac. Ry. Co.
| Decision Date | 03 December 1923 |
| Docket Number | 4080. |
| Citation | 293 F. 657 |
| Parties | UNITED STATES v. NORTHERN PAC. RY. CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Rehearing Denied January 7, 1924.
Thos P. Revelle, U.S. Atty., and C. E. Hughes, Asst. U.S. Atty both of Seattle, Wash. (M. C. List, Sp. Asst. U.S. Atty., of Washington, D.C., of counsel), for the United States.
Geo. T. Reid, C. H. Winders, L. B. Da Ponte, all of Seattle, Wash., for defendant in error.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
The complaint in this case contains 18 causes of action, each cause of action charging a violation of the Safety Appliance Act and the orders of the Interstate Commerce Commission made and issued pursuant thereto. The answer of the defendant admitted the interstate character of its business and denied each and every other allegation of the complaint. By way of an affirmative defense, but not as a defense to any particular cause of action, the answer averred that on the 1st day of July, 1922, the joint shop craft employees of the railway company, including those engaged in the work of inspecting and repairing cars and the doing of general mechanical work in connection with their upkeep, ceased their employment and withdrew from the service of the company in protest of an award made by the United States Labor Board; that such employees left the service of the company without fault on its part, and notwithstanding the order and findings of the Labor Board; that the defendant, pursuant to the directions of the Labor Board, used its best efforts to obtain the services of other employees, and endeavored to perform its duties to the shipping public and its other duties as a common carrier; that it used many of its official staff for the purpose of keeping its railway system in operation; that by reason of the withdrawal of its employees, it was impossible for several weeks to keep an accurate record of the condition of its cars; that all cars were properly inspected; that it handled its equipment in a reasonable manner, and did not permit the use of any equipment that would endanger the safety of operation, or of its employees or others having business with the company; that if any of the cars were defective, as alleged in the complaint, the defects were the result of an emergency beyond the control of the defendant; that the defects, if any, were remedied as soon as consistent, in view of the emergency and after movement made necessary thereby, at the then nearest and most available point therefor.
This affirmative defense was moved against and demurred to, but the motion and demurrer were overruled. The assignments of error are based on these rulings, upon the admission and exclusion of testimony over objection, and upon the charge of the court and the refusal to charge as requested. The jury returned a verdict in favor of the defendant as to the first 17 causes of action and a like verdict as to the eighteenth cause of action by direction of the court.
The act under which the action was brought declares that any common carrier, subject to the act, using, hauling, or permitting to be used or hauled on its line, any car subject to the requirements of the act, not equipped as therein provided, shall be liable to a penalty for each and every such violation, provided that, where any car shall have been properly equipped as provided in the act and the other acts mentioned therein, and such equipment shall have become defective or insecure while such car was being used by such carrier upon its line of railroad, such car may be hauled from the place where such equipment was first discovered to be defective or insecure to the nearest available point where such car can be repaired, without liability for the penalties imposed, if such movement is necessary to make such repairs and the repairs cannot be made except at such repair point. 36 Stat. 299 (Comp. St. Sec. 8621).
Measured by this statute, it becomes at once apparent that the affirmative answer states no defense and that the ruling on the demurrer was erroneous. Under the statute only two defenses are permissible: First, a denial of the use of the defective car as charged; or, second, an affirmative defense stating that the car had been properly equipped, that such equipment became defective or insecure while in use by the carrier upon its line of railroad, that the car was being hauled from the place where the equipment was first discovered to be defective or insecure to the nearest available point where the defect could be repaired, that such...
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