UNITED STATES v. DELANO et al., 246 F. 107

EVANS, Circuit Judge. This action is brought by the government to enforce the Hours of Service Act, enacted March 4, 1907, entitled “An act to promote the safety of employés and travelers upon railroads by limiting the hours of service of employes thereon” (sections 8678, 8679, U. S. Comp. Stat. 1916), and was tried by the court without a jury upon stipulation of the parties and upon an agreed statement of facts.

The material facts agreed upon are as follows: Defendant on June 18, 1913, maintained a night and day telegraph station at Ashley-Hudson, Ind., a small village, and employed three operators, Edson, Shepard, and Butler; the former going on duty at 1 p. m., and each operator working eight hours. On this day Operator Shepard, while on her way to work at about 8:30 p. m., became “violently ill and fainted,” and “thereby became and was unable to assume and discharge her duties as such operator.” Edson continued his service, and notified the chief operator at Montpelier, Ohio, at 9:30 p. m. of the illness of Shepard.

There were no relief operators obtainable at Ashley-Hudson, but Operator Butler lived within 10 minutes’ walk of the station. He was not called to relieve Edson. The nearest relief operator was one Smith, located and employed at the city of Montpelier, Ohio. Immediately upon receiving notice of Shepard’s illness, the chief dispatcher sent Smith to Ashley-Hudson on the first available train, which left at- 2 a. m. on June 19th, and arrived at Ashley-Hudson at 4 a. m. Smith assumed his duties immediately upon his arrival. Two questions are submitted: (

a) Does the proviso of

section 3 of this act relate to telegraph operators? (

b) If so, does the evidence establish a defense under the emergency clause of

section 2, or the casualty or unavoidable accident proviso of

section 3 ? The government’s contention that the proviso of

section 3 does not apply to telegraph operators or train dispatchers must be overruled upon the authority of United States v. Missouri Pacific R. R., 213 Fed. 169, 130 C. C. A. 5; San Pedro, L. A. & S. L. R. R. v. United States, 220 Fed. 737, 136 C. C. A. 343; United States v. Atlantic Coast Line Co. (D. C.) 224 Fed. 160; United States v. N. Y., O. & W. Ry. (D. C.) 216 Fed. 702. We think it was the intention of Congress to make the proviso appearing in

section 3 of the act apply to all employés affected by the act. But defendant’s contention that the evidence fully justified the excess service on the part of Edson cannot be accepted. Whether we deem the sudden illness of the operator as “a case of emergency,” within the proviso of

section 2, or “a case of casualty, unavoidable accident or the act of God,” within the provision of

section 3, the result must be the same. If the sickness was such “an emergency” as is specified in the proviso of

section 2, still the carrier is not excused in the present case, for the operator was kept on duty 15 continuous hours, or 2 hours more than the maximum period allowed in “a case of emergency” by

section 2. If it be admitted that the sudden and unexpected illness of Operator Shepard was “a casualty,” within the language of the proviso in

section 3, then it appears in this case that the carrier failed to exercise that high degree of diligence required of it under such circumstances. The degree of diligence required of the carrier under such circumstances has been announced in the following cases: Atchison, Topeka & S. F. R. R. Co. v. United States, 220 Fed. 748, 136 C. C. A. 354; San Pedro, L. A. & S. L. R. R. v. United States, 220 Fed. 737, 136 C. C. A. 343; United States v. Atchison, Topeka & S. F. R. R. Co. (D. C.) 236 Fed. 154; Northern Pacific R. R. v. United States, 213 Fed. 577, 130 C. C. A. 157; Chicago & N. W. R. R. v.

United States, 234 Fed. 268, 148 C. C. A. 170; Baltimore & Ohio R. R. v. United States, 242 Fed. 1,-C. C. A. --. See, also, Indiana Harbor Belt Ry. v. United States, 244 Fed. 943,-C. C. A.-, decided by this court July 24, 1917. In the present case the carrier knew that the relief operator, Smith, could not reach Ashley-Hudson until 4 a. m., or until after Edson had been on continuous duty for 15 hours. Any delay in the train service would have increased this period. On the other hand, Operator Butler was within 10 minutes’ walk of the station and was available for the relief of Edson.

He could have gone on duty at 12 o’clock, and his service thereafter, until Smith arrived, or even for a longer period, would not have been violative of the statute, and would have been consistent with the purpose and object of the act, which was to secure greater safety to passengers and employés through the shortening of the continuous hours of service of railway employés. Upon the stipulated statement of facts we conclude the carrier failed to establish diligence in not calling Butler after it learned of the sickness of Shepard.

Judgment is reversed, and the cause remanded to the District Court, with directions to enter judgment in plaintiff’s favor.