United States v. Pennsylvania R. Co.

• Decision Date: 14 February 1917
• Docket Number: 4042.
• Citation: 239 F. 576
• Parties: UNITED STATES v. PENNSYLVANIA R. CO.
• Court: U.S. District Court — Eastern District of Pennsylvania

239 F. 576

UNITED STATES v. PENNSYLVANIA R. CO.

No. 4042.

United States District Court, E.D. Pennsylvania.

February 14, 1917

Robert J. Sterrett, Asst. U.S. Atty., and Francis Fisher Kane, U.S Atty., both of Philadelphia, Pa.

John Hampton Barnes, of Philadelphia, Pa., for defendant.

DICKINSON District Judge.

This action is to recover the penalty for a noncompliance with the Hours of Service Act. The sole question may be characterized as one of law, involving the proper construction of the act of Congress, or as an ultimate fact finding of whether the employes with whom the case concerns itself are engaged in the kind of train service defined in the act. The case was by agreement tried before the court without the intervention of a jury, the right to a trial by jury having been waived. The stipulations entered into dispense with the necessity for any other findings than the one above indicated. This will be determined both as a conclusion of law and as a finding of fact. There is no controversy over the evidentiary facts. If either party, however, desires any special findings to be made part of the record, leave to present requests is granted, and the requests and answers will be made part hereof.

The question is whether the yardmasters, whose number of hours of service exceeds that of 'operators and train dispatchers,' should be limited to a like number. The pertinent words of the act are 'Operator, train dispatcher, or other employe who by the use of the telegraph or telephone dispatches, reports transmits, receives, or delivers orders pertaining to or affecting train movements,' etc.

The general purpose of the act is to provide against the danger described in the phrase 'he was asleep at his post,' by limiting the hours of continuous service. There is a recognition of the fact that man, regarded as an instrument of service, cannot be an efficient or dependable instrument if exhausted or 'dead from loss of sleep.' The command had issued to all trial courts to liberally construe this act of Congress so as 'to repress the evil and advance the remedy. ' Baltimore v. I.C.C., 221 U.S. 612, 31 Sup.Ct. 621, 55 L.Ed. 878.

There is also, however, recognition of the fact that railroading is a very practical occupation, the work of which must be governed by a system or organization which is necessarily very complex, and service in which will not readily lend itself to arbitrary time limits. The effort is therefore made to have the act apply to a class having a recognized existence in such systems, and to enlarge it by adding those who perform the kind of service, the hours of which Congress for the public good, was seeking to regulate. The general thought is clear enough. The persons desired to be reached are those whose duties have to do with 'train movements.' Inasmuch, however, as in such an organization every one connected with it is working toward the accomplishment of a common end (which necessarily involves 'train movements'), the work of every one 'pertains to or affects' such movements. Such a designation of the persons meant is in consequence far more broad than intended. The risk which Congress had in mind to minimize is one flowing from the wrong moving of trains, resulting in collisions or other causes of injury to persons and property. Such movements could be made only at the will of some employe. In the final analysis this would be the engineer or other operator of the mechanism, but, as he moves at the direction of some other employe, without exercising any other will of his own than that of obedience, the 'order' to move, of which we are in search, comes from such other employe. This other employe, in his turn, does not act, except upon knowledge of the conditions, and this he gathers from information conveyed to him by still others. There is here a distinction. As before observed, there must be a mind which directs the movement. Whenever this is manifested, there is an order to move. The distinction is between the information upon which the mind acts and the act.

There are times when the two are difficult to distinguish, and the one blends into the other, and each becomes both. Take the instance of a train run on schedule and by the block signal system. The signal is both information and an order to the engineer. If it is not against him, it tells him the track is clear, and orders him to run to the next block. If some one, not a signalman, stands on the track waving a flag or his hat, the engineer will stop the train; but this could not be said to be an order to stop. The distinction and the difference and the test are here alike obvious, assuming the general orders to be that the engineer must obey the signal. Where the brakeman of a stalled train goes back to signal a following train, or a switchman waves to the engineer after throwing a switch, the distinction remains, and the test is the same, but the difference practically disappears. Railroad parlance supplies us with the required phrase-- the brakeman is said 'to flag' the train. Another illustration is afforded by a station agent, who informs the engineer that a train ahead of him is in difficulties and may become stalled. Still another is afforded by the rule(not in the Book of Rules) put in evidence by the defendant and relied upon to support the defense. This rule informs those in charge of the train that it is likely to meet other trains within yard limits, and orders them to so run their train as that it may be stopped within the range of their vision.

The test, of course, is whether, in the cases instanced, the engineer uses his own judgment upon the information given, or whether he is without choice, and has no discretion in respect to what he will do. Practical railroading recognizes the distinction and classifies employes accordingly. Dispatchers and operators of block signal towers are recognized as those who direct, and because of this give 'orders' for, train movements. Switchmen and brakemen do not give 'orders.' Congress, wishing to apply the act, not only to those who in the railroad sense directed train movements, but also to those through whose acts trains did in fact move, designated 'dispatchers' and 'operators' eo nomine, and added all employes whose duty it was to give information which pertained to or affected train movements, through being the practical equivalent of an order. It was at once seen, however, that if the enactment was so phrased the language was entirely too broad and general, and it was because of this limited to those who conveyed the information by telegraph or telephone. There were several reasons for a limitation of this kind. One was that it defined the class with practical precision, and excluded employes not meant to be embraced, because it was impractical to embrace them. Another was that this limitation confined the act to a class who were, because of the character of their employment, required to be mentally alert and wide awake, and were most likely to succumb to the strain of long hours, because they would be without the physical activity which would keep them alert and on the move. This gives us the fair meaning of the act of Congress, and it only remains to apply that meaning to the employes with whom we are now concerned.

In railroad parlance they are neither dispatchers nor operators, nor have they to do with train movements. They are what the name by which they are known implies-- 'yardmasters.' The question, therefore, is whether they are brought into the class by the description of their duties. They are employed, as the name given to them indicates, within the limits of a yard. Within this yard there are tracks set apart for a variety of purposes. They have primary uses and occasional or emergency uses. One such primary purpose and use is to arrange the cars in convenient trains compacted of cars having destinations such as will facilitate deliveries. This is the classification of cars and making up of trains. Another purpose is to store cars. Another is for yard movements. There are also tracks which extend through the yard without being in the strict sense part of it. Two of these are main tracks used for passenger service having nothing to do with the yard. These others (two known as west-bound, and one as east-bound) are used for freight service, which goes through the yard without being of the yard operations. These three tracks are, however, also used for yard movements (as also are at times even the passenger tracks), and are so used at times without regard to the indicated intended direction of travel. This latter movement is called 'bucking the track.'

When the tracks, which have been spoken of as extending through (without being part of) the yard, are used for through travel, the movement of the trains is directed by the dispatcher in the usual way. All employes connected with such movements are in the short hours class. Normally these tracks are open to and free for through yard movements. The yard movement of trains is regulated by the special rule and the Book of Rules already...