CASES ON REHEARING CASES IN THE UNITED STATES CIRCUIT COURTS OF APPEALS IN WHICH CASES ARGUED AND DETERMINED IN THE UNITED STATES CIRCUIT COURTS OF APPEALS AND THE DISTRICT COURTS BALTIMORE & O. R. CO. v. UNITED STATES. (Circuit Court of Appeals, Sixth Circuit. May 8, 1917.) No. 2911. 1. MASTER AND SERVANT 13-HOURS OF SERVICE-EXCUSES. In an action for penalties for keeping a freight train crew on duty more than 16 hours, where the weather was extremely cold, with deep snow and a bad storm, the jury might have found that delays caused by the breaking of a knuckle, the freezing of the air hose and a broken knuckle lock were due to unavoidable accidents or causes which could not have been foreseen, within the proviso of Hours of Service Act March 4, 1907, c. 2939, § 3, 34 Stat. 1416 (Comp. St. 1916, § 8679), that the provisions of such act shall not apply to delays so caused. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 14.] 2. MASTER AND SERVANT 13-HOURS OF SERVICE-EXCUSES. Under Hours of Service Act, § 3, providing that such act shall not apply to any case of unavoidable accident, nor where the delay was the result of a cause not known when the employé left the terminal and which could not have been foreseen, while the circumstances may make it imperative and lawful that a crew should continue at work until the train reaches a relay point, the carrier cannot arbitrarily add to the specified 16 hours the amount of any delay arising from the excepted causes, nor arbitrarily keep the crew on duty until the end of the run, or the nearest regular relay point. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 14.] 3. MASTER AND SERVANT 13-HOURS OF SERVICE-EXCUSES. Under the proviso of Hours of Service Act, § 3, the prescribed penalties do not accrue for such excess service as is the proximate result of the unavoidable accident, but the suspension of the statute exists only to the extent that the unavoidable accident was and continues to be the moving cause of the excess service. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 14.] 4. APPEAL AND ERROR 1064(4)—HARMLESS ERROR-INSTRUCTIONS. In an action for penalties for keeping a freight train crew on duty more than 16 hours, defended on the ground that delays were due to unavoidable accidents and causes which could not have been foreseen, where the issue was close, instructions which were not wholly clear, and might have been misunderstood by the jury, concerning the degree of diligence required to avoid keeping the men on duty longer than 16 hours and the effect of delays due to excusable causes, was prejudicial. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4224.] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 242 F.-1 5. MASTER AND SERVANT 17-HOURS OF SERVICE-PENALTIES-QUESTION FOR JURY. A freight train crew went on duty at 11:30 a. m., and left Newark for a run of 87 miles to Chicago Junction, usually requiring about 81⁄2 hours, at 12:45 p. m. The weather and other causes delayed the train, so that it did not leave L., 53 miles from Newark, until midnight. At A., the next station, there was a delay of 11⁄2 hours, at N., 63 miles from Newark, which the train reached at 2:47, a delay of 50 minutes, and at S., 10 miles further, which it reached at 5:10, a delay of 2 hours, during which the crew was relieved by a crew sent out from Chicago Junction on the regular train, leaving at 5:20. The delays at A., N., and S. might have been found to be excusable. Held, that defendant's motion for an instructed verdict was properly denied, as the jury might have found that, in the exercise of a high degree of diligence, it was the carrier's duty to send relief by a special train, without waiting for the regular train. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 16.] 6. MASTER AND SERVANT 13-HOURS OF SERVICE-EXCUSES. Under Hours of Service Act, § 3, where there is a delay from unavoidable accident, or a cause not known to the railroad's agents when a freight train leaves its terminal, and which could not have been foreseen, the railroad is entitled to add to the 16 hours permitted by statute all the delay, and only such delay as occurs as the result of this cause, provided it exercised reasonable diligence from the beginning of the trip to avoid delays, exercised a high degree of effort or extreme diligence to get the train through to the end of the run within the time limit, when it became or should have become apparent that there was danger of not getting through on time, used that same high diligence to prevent excess service by laying up the train, sending relief, or any other practicable way, as soon as excess service became fairly probable, and continually and until the service ended used the same high diligence and by the same means to make the excess service as short as possible. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 14.] In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; John H. Clarke, Judge. Action by the United States against the Baltimore & Ohio Railroad Company for penalties. Judgment for the government, and defendant brings error. Reversed, and new trial awarded. S. H. Tolles and R. C. Hyatt, both of Cleveland, Ohio, for plaintiff in error. Philip J. Doherty, of Washington, D. C., and E. S. Wertz, U. S. Atty., of Cleveland, Ohio, for the United States. Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges. DENISON, Circuit Judge. In the court below, the government alleged that the defendant, the railroad company, had violated the Hours of Service Act (34 Stat. p. 1415) by keeping on duty more than 16 hours, on December 25 and December 26, 1914, the crew of a freight train bound from Newark to Chicago Junction. The crew consisted of 2 engineers, 2 firemen, a conductor, and 2 brakemen. The defendant admitted that more than 16 hours service had been rendered by the employés, but claimed that the delays which caused the excessive service resulted from casualty, unavoidable accident, or the act of God. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes The issues were submitted to a jury, which found for the government. The railroad company alleges that there was error in the reception of evidence and in the instructions to the jury. The case involves a construction and application of the proviso of section 3 of the act, which is: "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 employé at the time said employé left a terminal, and which could not have been foreseen." This makes it necessary to state the facts somewhat fully. The distance from Newark to Chicago Junction was 87 miles. This train was scheduled to leave Newark at 10:35 a. m., and arrive at Chicago Junction at 7 p. m.-a regular running time of about 81⁄2 hours. On this occasion, the crew went on duty at 11:30 a. m., but did not leave Newark until 12:45 p. m. The train was heavy, having 82 cars with 2 engines, there was a bad storm and it was very cold, the work at the stops was difficult and slow and other trains had to be waited for. The result is that this train did not leave Lexington, 53 miles from Newark, until midnight, after the men had been on duty 12 hours, and about 11 hours after it left Newark. It cannot fairly be claimed that any delay which had occurred up to this time is within the proviso in question. At the next station, Alta, there was a delay of an hour and a half, caused by the breaking of a knuckle and in the necessary replacement and repairs. The train left Alta at 2 a. m., and reached the next station, North Siding, 63 miles from Newark, at 2:47. The crew had then been on duty 154 hours. Here there was a delay of 50 minutes, caused by the air hose freezing, and the necessary repairs. Leaving North Siding at 3:57, the train reached Shelby Junction, 10 miles further, at 5:10. Here there was a further delay of 2 hours on account of a broken knuckle lock, the breaking in two of the train and the necessary repairs and clearing the track; but at about 6 o'clock, after 182 hours of service, the crew was relieved by a crew which had been sent back from Chicago Junction on the regular train leaving there at 5:20. [1] Under the circumstances of this case, and considering the extent to which the extreme cold and deep snow and storm would aggravate occurrences otherwise less serious, we are inclined to think that the described delays at Alta, North Siding, and Shelby Junction might have been found by the jury to result from unavoidable accident or from a cause which could not have been foreseen by the agents in charge when the train left Newark. We think this conclusion not out of harmony with our holding in No. 2910 (a case of the same title, opinion filed herewith) that the disabling of the water pipe could not be such an accident. Not only is there in that case nothing tending to show that ordinary inspection and care would not have prevented the trouble, but in making concrete application of the term "unavoidable accident," there is a necessary distinction between a fixed water pipe in a tank and freight car apparatus subjected to severe strains of transportation under difficult conditions. We find, then, that the evidence tended to show that at the end of the 18 hours and 30 minutes of actual service, delays amounting to about 3 hours and 30 minutes had occur red, which were attributable to unavoidable accident-delays of the class which, for convenience, we hereafter call "excusable"-and that since, when the train left Lexington, it had 34 miles to go, and had less than 4 hours of the 16 remaining in which to make that distance, including several stops, it should then have been apparent to the train dispatcher that there was a serious danger, if not a probability, that the 16 hours would be exceeded before Chicago Junction could be reached. In this situation, defendant requested two instructions. One was that the defendant was entitled of right to add to the 16 hours the time of whatever delay was attributable to an unavoidable accident, and the other was that when the unavoidable accident happened causing delay beyond 16 hours, the defendant was entitled to keep the crew in service until the end of the run or the nearest regular relay point. The refusal of these instructions is alleged as error. [2] We cannot think that defendant was entitled to either instruction. It is true that the Interstate Commerce Commission, soon after the enactment of the law, ruled that an employé so delayed might be continued on duty to the end of the run ("The proviso quoted removes the application of the law to that trip." I. C. C. Conference Ruling 88, June 25, 1908); but when read in connection with other administrative rulings (see discussion of same in San Pedro R. v. United States, 220 Fed. 737, 744, 136 C. C. A. 343, and in Atchison Ry. v. U. S., 220 Fed. 748, 136 C. C. A. 354 1) we doubt whether it was intended to lay down any general and universal rule. At any rate, since such a construction of the act would not infrequently remove altogether the time prohibition and permit unlimited service to be exacted, it would be so in conflict with the general purpose and scope of the act so often. declared that we cannot be satisfied to adopt it, although it is plain enough that the circumstances of a given case may make it imperative and lawful that the crew should continue at work until the train reaches a relay point. Nor can we think that the statute carries any arbitrary and certain permission to add to the specified 16 hours the amount of any delay arising from the excepting causes. It is contrary to the spirit of the act to suppose that if there had been 3 hours excusable delay in the early part of the trip and there still remained ample time to finish the run within 16 hours, the railroad could arbitrarily or unnecessarily allow additional delays, so as to call for 19 hours' service. On the other hand, it seems equally clear that, through lost connections or impossibility of relief or the necessity of paying due regard to the public right to the operation of other trains, that very same delay might make necessary excessive service of more than 3 hours. To adapt the spirit of the statute to all these varying circumstances, some other rule must be found than the mere addition of a time equal to the period of excusable delay. [3] The application of the proviso undoubtedly develops ambiguities, but the prevention of excessive service was the substantial thing at which the statute was aiming, and when the proviso says that in case 1 Affirmed by Supreme Court, June 4, 1917. 244 U. S. 336, 37 Sup. Ct. 635, 61 L. Ed. |