CHICAGO, R. I. & P. RY. CO. v. UNITED STATES, 226 F. 27

MACK, Circuit Judge (after stating the facts as above). 1. Defendant contends that what the switch tenders did in relation to tlie towel Juan was to impart information, not to' transmit orders. It concedes, in accordance with the decisions in United States v. Houston B. & T. Ry. Co., 205 Fed. 344, 125 C. C. A. 481 (C. C. A., 5th Circut) and M. P. Ry. Co. v. United States, 211 Fed. 893, 128 C. C. A. 271 (C. C.

A., 8th Circuit), that orders are not confined to' technical wrlnmi train orders; that any specific direction or instruction which a subordinate is bound to' obey would be an order; but it urges that only such orders “the violation of which might result in some accident” fall within the purpose and therefore within the scope of the statute. Unuuestiouably, the important object of the statute was to conserve the safely of the traveling public and of railroad employés; the relation bet ween industrial fatigue and inefficiency was recognized; the statute aims to obviate the latter by checking the former.

Not merely safety, but general efficiency, promptness of service is thereby promoted, Concededly, greater regularity in the passenger service is secured, if the defendant’s trains are no longer slowed down and held tip at the crossing. Orders designed to accomplish even this result would, therefore, be within the purview of the act. But who can say that the violation of any order pertaining to or affecting train movements might not result in some accident?

That other measures obviated the possibility of a collision at {he Gresham crossing is immaterial, for surely regularity, of service at that point might well prevent an accident at some other point. The information telephoned by the switchman was equivalent to a direction to the lever-man to let the oncoming passenger train pass; an order, originated, it is true, by some superior officer, not by the switchman, but none the less an order transmitted by him. 2.

The principal contest is whether the words “other employe who by the use of the telegraph or telephone dispatches, reports, transmits, receives or deli vera orders pertaining to or affecting train movements'’ are 1o be limited by the application of the ejusdem generis rule of construction, to a class of which operators and train dispatchers arc representatives. In a case practically identical with the instant case, this construction has been adopted. M. P. Ry. Co. v. United States, supra; contra, United States v. C., C., C. & St. L. Ry.

Co. (oral decision Dec. 12, 1911, United States District Court, Southern District of Ohio; writ of error dismissed by stipulation Oct. 15, 1912). The contrary view was also assumed to be correct in the Houston Case, supra, in reference to towermen. The class is held in the M. P. Ry. Cast; to be those employés whose duties primarily involve the use of the telegraph and telephone in connection with such orders. This decision was followed in United States v. Florida East Coast Ry. Co., 222 Fed. 33, - C. C. A. — (C. C.

A., 5th Circuit, Judge Walker dissenting), in the case of a train conductor, partly on the ground that his “primary and principal duty” did not require him to operate telegraphic instruments and telephones for transmitting such orders, but also on the further ground that stopping at a station to transmit or receive an order affecting his immediate train is a mere incidental service, not done in the fixed place, held to be implied in the phrase “to remain on duty for a longer period, etc., in all towers, offices, places and stations.” It is unnecessary to consider this last point because these employes were regularly stationed at the shanty in which the telephone was located; their duty to transmit the information by telephone to the Gresham leverman was not incidental, but regular and habitual.

It was not, however, in any sense their principal and primary duty; that was to attend to the Blue Island freight yard switches. We cannot, however, agree that tire words “other employé who by the use,” etc., transmits such orders, are to be qualified by an implied' limitation to those whose primary and principal duty is thus described.

The remedial purpose of this act, to .protect human life and to promote railroad efficiency, demands that despite its penal character its provisions shall be construed and the intent of Congress found from the language actually used, interpreted according to its fair and obvious meaning.

Congress may well have deemed it unsafe to permit employes whose duty it is, not primarily or principally, but ordinarily and habitually, to transmit such important orders, and in doing so to exercise whatever measure of skill, care, alertness, and attention the use of either telegraph or telephone requires, to work 16 hours, however simple or nonfatiguing their ordinary tasks may be.

Furthermore, the class that includes only those whose principal duty is to transmit such orders by telegraph or telephone does not include all who concededly are within the proviso; an operator or train dispatcher may also be a station agent, and his primary and principal duties may be in the latter capacity. If, unlike United States v. Mescall, 215 U. S. 26, 30 Sup. Ct. 19, 54 U.

Ed. 77, the particular words, “operators and train dispatchers,” do not exhaust the class and thus make the rule of ejusdem generis inapplicable, the only all embracing designation covering those concededly within the proviso, is an em-ployé who ordinarily and habitually uses the telegraph or telephone for the purposes stated. Defendant’s employés here in question come within this class. The judgment will therefore be affirmed.