Copyright
Thomas Johnson Michie.

A treatise on the law of carriers (Volume 4) online

. (page 67 of 214)
Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 67 of 214)
Font size
QR-code for this ebook


applies to the interstate highway as an 70. Car not used in interstate corn-
instrument of commerce; and, congress merce. — Southern R. Co. v. Snyder, 109
having taken affirmative action in refer- C. C. A. 344, 187 Fed. 492.
ence thereto, its control of the interstate 71. United States v. Erie R. Co., 16C
highway being thereby conclusive, the Fed. 352.

statute requiring vehicles running on in- The provision of Act March 2, 1903, c.

terstate highways to be provided with 976, § 1, 32 Stat. 943 (U. S. Comp. St.

certain appliances embraces all uses of the Supp. 1909, p. 1143), amendatory of the

highway, whether for the transportation Safety Appliance Acts of March 2, 1893

of interstate traffic or for the transporta- (ch. 196, § 6, 27 Stat. 532), and April 1,

tion of traffic from a point within the 1896 (29 Stat. 85 [U. S. Comp. St. 1901, p.

state to another point in the same state 3175]), extending the provisions of such

by carriers engaged in interstate com- acts relating to train brakes, automatic

mcrce. United States v. Southern R. Co., couplers, grabirons, and the height of

164 Fed. :!47. drawbars to "all trains, locomotives, ten-

68. Construed with reference to Inter- dcrs, cars, and similar vehicles used on



§ 3842



CARRIE^RS.



3454



Part of Cars Not Engaged in Interstate Commerce. — A train, composed
of cars some of which are and some of which are not engaged in interstate traffic,
is subject to the regulation of congress, all the cars in the train being required to
comply with the safety appliance actsJ^ If a car which is defective as to its
coupling appliances or handholds is hauled in a train containing another car
loaded with interstate traffic, the statute is violated though the defective car does
not contain interstate traffic." ^ Where a train is composed of cars, some of
which are and some of which are not engaged in interstate traffic, the whole train
is subject to the Safety Appliance Act, and it is immaterial whether the car not
properly equipped is coupled to a car containing interstate commerce or not in
order to establish a liability on the railroad company .'■•*

Engaged in Intrastate Commerce Only. — State affairs are under the ex-
clusive control of the respective states, and the act of Congress requiring railroads
engaged in interstate commerce to equip their cars with automatic couplers can
not be extended to cars of such companies when employed only in the carriage of
commerce between points in the state." °

Car Standing on Switch. — A foreign freight car, moved by one railroad
company from one state into another, loaded, and there delivered to defendant
company, and by defendant to the consignee, and after being unloaded placed
by defendant on a switch track, from which it was afterwards redelivered to the
original company, again loaded by it, and returned into the state whence it came,,
was, when on defendant's switch track awaiting redelivery, a car in use in inter-
state commerce, and subject to the requirement of the Safety Appliance Act, as
to equipment with automatic coupling devices in such condition as to be opera-
tive, and its movement on such track by defendant, when so defective that it
would not couple by impact, was a violation of such act.^*'



any railroad engaged in interstate com-
merce," is intended as a regulation of
such railroads only when engaged in in-
terstate commerce, and does not apply to
a road when engaged in the domestic
commerce of a state. Louisville, etc., R.
Co. V. United States, 108 C. C. A. .326, 186
Fed. 280.

Act March 2, 1893, c. 196, 27 Stat. 531
(U. S. Comp. St. 1901, p. 3174), requiring
automatic couplers on railroad cars mov-
ing interstate traffic, has not exclusive
control and regulation of a car operated
by a railroad over a track commonly used
in interstate traffic in a train actually at
the time so engaged; but such car, being
then loaded with intrastate, as distin-
guished from interstate, traffic, is within
the control and regulation of 98 Ohio
laws, p. 7.5, providing for automatic coup-
lers on cars moving state traffic. De-
troit, etc., Railway v. State, 21-31 O. C.
D. 20, 11 O. C. C, N. S., 482.

Federal Safety Appliance Act March
2, 1893, § 4, as amended by Act March
2, 1903, § 1, applies to cars commonly
used on railways engaged in interstate
commerce, although engaged at the time
in intrastate commerce. Southern R. Co.
V. Railroad Comm., 179 Ind. 23, 100 N. E.
337.

72. Where part of cars not engaged in
interstate commerce. — United States v.
Erie R. Co., 166 Fed. 352.

The provision of Act March 2, 1903, c.
976, § 1, 32 Stat. 943 (U. S. Comp. St.
Supp. 1909, p. 1143), amendatory of the



Safety Appliance Acts of March 2, 1893'
(ch. 196, § 6, 27 Stat. 532), and April 1,
1896 (ch. 87, 29 St. 85 [U. S. Comp. St.
1901, p. 3175]), that the requirements of
such acts relating to train brakes, auto-
matic couplers, etc., shall be held to apply
to all trains, locomotives, tenders, cars,
and similar vehicles used in interstate
commerce, "and all other locomotives,
tenders, cars and similar vehicles used in
connection therewith," does not require
that the connection between a car not
equipped as therein required and one used
in interstate commerce shall be immediate
to bring it within the statute, but it is
sufficient if they are in the same train.
Louisville, etc., R. Co. v. United States, .
108 C. C. A. 326, 186 Fed. 280.

73. United States v. Baltimore, etc., R.
Co., 170 Fed. 456.

74. Norfolk, etc., R. Co. v. United
States, 101 C. C. A. 249, 177 Fed. 623.

A defective car, which is being hauled
in a train that contains cars that are be-
ing used in moving interstate commerce,
is within Federal Safety Appliance Act
March 2, 1893, c. 196, 27 Stat. 531 (U. S.
Comp. St. 1901, p. 3174), as amended by
Act March 2, 1903, c. 976, 32 Stat. 943 (U.
S. Comp. St. Supp. 1909, p. 1143), though
the defective car is not itself being used
in interstate commerce. Bresky v. Minn-
eapolis, etc., R. Co., 115 Minn. 386, 132
N. W. 337.

75. Intrastate commerce. — Rio Grande
Southern R. Co. z: Campbell, 44 Colo.
1, 96 Pac. 986.

76. Car standing on switch. — Johnson



3455



REGULATION AND CONTROL.



§ 3842



Where Car on Exchange Track. — Where a freight car loaded with lumber
brought from another state was delivered to defendant railroad company on an
exchange track a few blocks from its final destination, and after being moved
from such track by defendant without inspection was found to have a broken
coupler, so that it could not be coupled without going between the cars, it was
being used by defendant in interstate commerce in violation of Act March 2,
1893 J 7

Carriage of Empty Car. — The Federal Safety Appliance Act does not apply
to cars which, though standing on the tracks of railroads engaged in interstate
commerce, were not being used in such commerce ; and where, after an inter-
state carriage a car is unloaded, it ordinarily ceases to be used in interstate com-
merce, as where it is used in intrastate traffic, or remains idle, awaiting repairs
or such future use as may afterwards be determined; but where, after an inter-
state carriage, it is to return empty to the state from which it came, it is within
the act throughout the trip, including the time between the unloading and the
beginning of the return trip J ^ The hauling by a railroad company from one state
to another of a car not equipped with the ret^uired safety appliances, upon its own
trucks, as a part of a train of other cars moving interstate commerce, is a use of
the defective car in violation of the safety appliance act, though it is empty and is
being transported to a repair shop in the state of its destination^^

During Stoppage in Transit. — Where a car loaded with lumber and shipped
from another state had not been delivered to the consignee at the time it was
stopped in a railroad yard at destination and placed on a side track for repairs
to the automatic coupler, which had become defective, the stoppage in the yard
was an incident to the transportation, so that the car was still engaged in inter-
state commerce at the time plaintiff was injured while endeavoring to move it in
conducting switching operations on such track, before the repairs had been made,
within Safety Appliance Act of March 2, 1893, requiring carriers engaged in in-
terstate commerce to be equipped with couplers coupling automatically by impact,



7'. Great Northern R. Co.. 102 C. C. A. 89,
178 Fed. 643.

A freight car loaded with interstate
freight, and placed on a side track in the
railway yard at destination, to await
simple repairs to the automatic coupler,
is U'sed in moving interstate commerce
within the meaning of Safety Appliance
Act March 2, 1893, c. 196, 27 Stat. 531 (U.
S. Comp. St. 1901, p. 3174), when a coup-
ling with another car is thereafter at-
tempted by the carrier's order, during the
course of switching operations. Delk t'.
St. Louis, etc., R. Co., 220 U. S. .580, .55
L. Ed. 590, 31 S. Ct. 617, reversing judg-
ment 86 C. C. A. 95, 158 Fed. 931, 14 Am.
& Eng. Ann. Cas. 233.

77. Where car on exchange track.—
Chicago, etc., R. Co. v. United States, 91
C. C. A. 373, 165 Fed. 423, 20 L. R. A., N.
S., 473.

78. Carriage of empty car. — Bresky v.
Minneapolis, etc., R. Co., 115 Minn. 386,
132 N. W. 337.

79. Chicago, etc., R. Co. v. United
States, 91 C. C. A. 373, 165 Fed. 423, 20
L. R. A., N. S., 473.

In injury actions against railroads,
where violation of the P'ederal Safety
Appliance Act (Act March 2, 1893, c. 196,
27 Stat. 531 _ [U. S. Comp. St. 1901, p.
3174]), requiring the use of automatic
couplers on cars employed in interstate



traffic is claimed, it is not necessary to
allege or prove that a car was loaded
with interstate traffic. Felt v. Denver,
etc., R. Co., 48 Colo. 249, 110 Pac. 215,
1136, 21 Am. & Eng. Ann. Cas. 379.

A car which had been actually engaged
in moving interstate traffic, and was held
in the railroad yards to be sent on an in-
terstate trip whenever required, and had
not been segregated from the class of
cars used in such traffic, was, though un-
loaded, being so used, within the Federal
Safety Appliance Act (Act March 2, 1893,
c. 196, 27 Stat. ,531 [U. S. Comp. St. 1901,
p. 3174]), requiring such cars to be
equipped with automatic couplers. Felt
V. Denver, etc., R. Co., 48 Colo. 249, 110
Pac. 215, 1136, 21 Am. & Eng. Ann. Cas.
379.

A car which has just come in from an
interstate trip and is being placed in the
yards of a manufacturer at the time of
plaintiff's injury to be loaded for another
interstate trip was not in use in in-
terstate commerce so as to authorize a
recovery for the violation of § 4 of the act
of congress (Act March 2, 1893, c. 196,
27 Stat. 531 fU. S. Comp. St. 1901, p.
3174]), requiring that cars used in inter-
state commerce shall be provided with
secure grabirons. Campbell v. Chicago,
etc., R. Co., 149 111. App. 120, judgment
affirmed in 243 111. 620, 90 N. E. 1106.



§§ 3842-3844 carriers. 3456

and which can be uncoupled without the necessity of going between the ends of
the cars.^**

Shifting Cars in Yard. — The Federal Safety Appliance Act applies to a de-
fective car or engine used in moving a box car from one switch track to another in
defendant's yards, when the purpose of moving such car is to load it with mer-
chandise for shipment into another state."* ^

Stockyard Company. — A union stockyards company operating thirty-five
miles of railroad, over which are hauled all cars offered for shipment by any in-
dustry located on the line of the road and all cars consigned to such industry, and
all cars from one railroad to another in course of shipment from one state to an-
other for which an arbitrary switching charge is made in operating such road, is
a common carrier engaged in interstate commerce within the Safety Appliance
Act.82

§ 3843. Appliances Required by Act. — Drawbars of unloaded freight cars
are recjuired, by the act to be of uniform and standard height ; but those of loaded
cars need not be of uniform height, provided that they do not vary more than the
three inches prescribed as the maximum permitted variation from the standard. ^^
The statutory duty imposed upon carriers in absolute terms by the act of using
interstate commerce only such freight cars as comply with the standard fixed as
the height for drawbars, is not discharged by furnishing cars constructed with
drawbars of the standard height, and by furnishing to competent inspectors and
trainmen a sufficient number of metallic wedges, or "shims," to use as occasion
demands to raise to the legal standard drawbars lowered by the natural effect
of proper use.^^

§ 3844. Enforcement of Act. — An action by the United States to recover
from a carrier the penalty prescribed for violations of the Safety x\ppliance Act
is a civil and not a criminal action. ^^ A petition states no cause of action under
the original Safety Appliance Act, making it unlawful for any railroad carrier
engaged in interstate commerce "to haul or permit to be hauled or used on its line
any car used in moving interstate traffic, not equipped with couplers coupling auto-
matically by impact," where there is no allegation that either of the cars was, at
the time of the accident, or at any time, used in moving interstate traffic^*''

80. Stoppage in transit. — St. Louis, etc., ments of the law. Tf, when unloaded, its
R. Co. z: Delk. 86 C. C. A. 95, 158 Fed. drawbars are of greater or less height
931, 14 Am. & Eng. Ann. Cas. 233, re- than the standard prescribed by the law,
hearing denied in 162 Fed. 145. or if, when wholly or partially loaded, its

81. Shifting cars in yard. — Bresky v. drawbars are lowered more than the max-
Minneapolis, etc., R. Co., 115 Minn. 386, imum variation permitted, the car does
132 N. W. 337. not comply with the requirements of the

82. Stockyard company.— United States law. St. Louis, etc., R. Co. v. Taylor, 210
V. Union Stock Yards Co., 161 Fed. 919. U. S. 281, 52 L. Ed. 1061, 28 S. Ct. 616.

83. Appliances required by act.— The 84. St. Louis, etc., R. Co. v. Taylor, 210
act requires that the center of the draw- U. S. 281, 52 L. Ed. 1061, 28 S. Ct. 616.
bars of freight cars used on standard guage 85. Proceedings to enforce statute.—
railroads shall be, when the cars are Chicago, etc., R. Co. v. United States, 220
empty, 34^ inches above the level of the U. S. 559, 55 L. Ed. 582, 31 S. Ct. 612.
tops of the rails; it permits, when a car 86. "The petition, if liberally construed,
is partly or fully loaded, a variation in charged that defendant was a common
the height downward, in no case to ex- carrier engaged in interstate commerce
ceed three inches; it does not require by railroad; that the cars in question were
that the variation shall be in proportion not equipped with couplers of the pre-
to the load, nor that a fully loaded car scribed type, and that the plamtifif's mju-
shall exhaust the full three inches of the ries proximately resulted from the ab-
maximum permissible variation and bring sence of such couplers; but there was no
its drawbars down to the height of 31 1/^ allegation that either of the cars was then
inches above the rails. If a car, when or at any time used in moving interstate
unloaded, has its drawbars 34^2 inches trafific. The supreme court of the state
above the rails, and, in any stage of load- held that in the absence of such an alle-
ing, does not lower its drawbars more than gation the petition did not state a cause
three inches, it complies with the require- of action under the original act. We



3457



REGULATION AND CONTROL.



S§ 3845-3846



§ 3845. Train Crew. — Congress, in its discretion, may take entire charge
of the whole subject of the equipment of interstate cars, and estabhsh such reg-
ulations as are necessary and proper for the protection of those engaged in in-
terstate commerce. But it has not done so in respect to the number of em-
ployees to whom may be committed the actual management of interstate trains
of any kind. It has not established any regulations on that subject, and until
it does, the statutes of the state, not in their nature arbitrary, and which really
relate to the rights and duties of all within the jurisdiction, must control.^'^

§ 3846. Hours of Labor. — The protection of life and property in connec-
tion with the operation of interstate trains is necessarily dependent upon the
efificiency of the human agencies employed in the movement of such trains ; and
as the length of hours of service has a direct relation to the efficiency of such
agencies, it follows that a restriction upon the hours of labor of employees con-
nected with the movement of trains in interstate transportation is comprehended
within the sphere of authorized legislation under the interstate commerce clause
of the federal constitution. In its power suitably to provide for the safety of
property and of employees and travelers, therefore, congress is not limited to
the enactment of laws relating to mechanical appliances, but it is also competent
to consider, and to endeavor to reduce, the dangers incident to the strain of ex-
cessive hours of duty on the part of engineers, conductors, train dispatchers,
telegraphers, and other persons employed in connection with the operation of
interstate trains. And in imposing restrictions having reasonable relation to this
end there is no interference with the liberty of contract as guaranteed by the
constitution. ^^^



think that ruling was right. The terms
of that act were such that its application
depended, first, upon the carrier beiog en-
gaged in interstate commerce by railroad,
and. second, upon the use of the car in
moving interstate traffic. It did not em-
brace all cars used on the line of such
a carrier, but only such as were used in
interstate commerce. Southern R. Co. z'.
United States. 222 U. S. 20, 56 L. Ed. 72,
32 S. Ct. 2. The act was amended March
2, 1903. 32 Stat, at L. 943, chap. 976, U. S.
Comp. Stat. Supp. 1909, p. 1143, so as to
include all cars 'used on any railroad en-
gaged in interstate commerce,' but the
amendment came too late to be of any
avail to the plaintiff." Brinkmeier z'.
Missouri Pac. R. Co., 224 U. S. 268, 56 L.
Ed. 758, 32 S. Ct. 412.

88. Train crew. — Prescribing a mini-
mum of three brakemen for freight trains
of more than 25 cars, operated in the
state, as is done by Laws Ark. 1907, No.
116, does not amount to an unconstitu-
tional regulation of interstate commerce
when applied to a foreign railway com-
pany engaged in such commerce. Chi-
cago, etc., R. Co. V. Arkansas, 219 U. S.
453, 55 L. Ed. 290, 31 S. Ct. 275, affirming
judgment 111 S. W. 456, 86 Ark. 312.

89. Hours of labor. — Baltimore, etc., R.
Co. V. Interstate Commerce Comm., 221
U. S. 612, 55 L. Ed. 878, 31 S. Ct. 621;
Chicago, etc., R. Co. v. McGuire, 219 U.
S. 549, 55 L. Ed. 328, 31 S. Ct. 259.

Congress, in the exercise of its power
over commerce, could enact the provi-
sions of Act March 4, 1907, c. 2939, 34
Stat. 1415 (U. S. Comp. St. Supp. 1909, p.



1170), restricting the hours of labor of
railway employees who are connected
with the movement of trains in interstate
or foreign commerce. Baltimore, etc., R.
Co. v. Interstate Commerce Comm., 221
U. S. 612. 55 L. Ed. 878, 31 S. Ct. 621.

Act Cong. March 4, 1907, c. 2939, § 2,
34 Stat. 1416 (U. S. Comp. St. Supp. 1909,
p. 1170), regulating the hours of labor of
train dispatchers, etc., is not invalid, be-
cause applying to both interstate and in-
trastate commerce, though an employee
the act may engage in the movement of
both interstate and intrastate trains.
People V. Erie R. Co., 119 N. Y. S. 873,
135 App. Div. 767, order reversed in 198
N. Y. 309, 91 N. E. 849.

Act Cong. March 4, 1907, c. 2939, 34
Stat. 1415 (U. S. Comp. St. Supp. 1909, p.
1170), provides that no railroad telegraph
or telephone operator receiving or trans-
mitting orders affecting train operations
shall be required or permitted to remain
on duty for a "longer" period than nine
hours in any twenty-four hour period in
all towers, offices, places, and stations
continuously operated day and night.
Held, that such act was only intended to
prescribe a general rule applicable to con-
ditions throughout the country in the
movement of interstate commerce, and
hence did no so cover the subject as to
preclude the state from passing Labor
Law (Consol. Laws, c. 31, § 8) § 7a, mak-
ing it unlawful for any corporation or re-
ceiver operating a railroad in New York
to permit any telegraph or telephone op-
erator spacing trains by telegraph or tele-
phone under the block system to remain



§ 3846



CARRIERS.



3458



Exclusive Power of Congress. — The power of congress over interstate com-
merce is plenary, and, as incident thereto, it may regnlate the instrumentalities
engaged in the business, and may prescribe the number of consecutive hours an
employee of a carrier so engaged may be required to remain on duty, and, when it
does legislate on the subject, its act supersedes any and all state legislation on the
subject.^" It is elementary that the right of a state to apply its police power for
the purpose of regulating interstate commerce, in a case like his, exists only from
the silence of congress on the subject, and ceases when congress acts on the
subject, or manifests its purpose to call into play its exclusive power.^^ _ Congress
has so acted upon the subject of the hours of labor of interstate railway em-
ployees by enacting the Hours of Service Act ^^ ^s to preclude a state during
the period between the date of that act and the time when, by its express temis,
it should go into effect, from making or enforcing as to such employees a local
regulation limiting hours of labor.^^

Time Statute Took Effect.— The act of congress of March 4, 1907, regu-
lating the hours of labor of train dispatchers, is a law from its passage,_ though
its operation is suspended for a year, and from the date of its passage it is ef-
fective as a declaration of the purpose of congress to deal with the matter, and
a state law, adopted after such passage, on the same subject, is not in force.^-*



on duty for more than eight hours in a
twenty-four hour period. People v. Erie
R. Co., 198 N. Y. 369, 91 N. E. 849, 29
L. R. A., N. S., 240, 19 Am. & Eng. Ann.
Cas. 811, reversing order 119 N. Y. S.
873. 135 App. Div. 767.

Intrastate railroads and employees
-wholly engaged in local business were
not afifected by the provisions of Act
March 4, 1907, c. 2939, § 2, 34 Stat. 1416
(U. S. Comp. St. Supp. 1909, p. 1170),
making it "unlawful for any common car-
rier, its' officers or agents, subject to this
act, to require or permit any employee
subject to this act to be or remain on
duty" for a longer period than that pre-
scribed, since such carriers and employees
are defined in § 1 as those who are en-
gaged in the transportation of passengers
or property by railroad in the District of
Columbia or the territories, or in inter-
state or foreign commerce, although that
section further defines "railroad" as in-
cluding all bridges and ferries used or op-
erated in connection with any railroad,
and also all the road in use by any car-
rier operating a railroad by contract,
agreement, or lease, and "employees" as
meaning persons actually engaged in, or
connected with, the movement of any
train. Baltimore, etc., R. Co. v. Interstate
Commerce Comm., 221 U. S. 612, 55 L.
Ed. 878, 31 S. Ct. 621.

90. Exclusive power of congress. — At-
kinson c'. Northern Pac. R. Co., 53 Wash.
673, 102 Pac. 876, 17 Am. & Eng. Ann.
Cas. 1013.

Until March 4, 1908, the date on which
it went into effect, Act Cong. March 4,
1907, c. 2939, 34 Stat. 1415 (U. S. Comp.
St. Supp. 1907, p. 913), regulating the
hours for the continuous employment of
employees of carriers of interstate com-
merce, did not suspend or supersede Act
June 12, 1907 (Laws 1907, p. 25, c. 20),



relating to the same subject. Atkinson 7/.
Northern Pac. R. Co., 53 Wash. 673, 102
Pac. 876, 17 Am. & Eng. Ann. Cas. 1013.

91. Exclusive or controlling operation of
statute. — Northern Pac. R. Co. v. Atkin-
son. 222 U. S. 370, 56 L. Ed. 237, 32 S. Ct.
160.

92. Act March 4, 1907, c. 2939, 34 Stat.
1415, U. S. Comp. Stat. Supp. 1909, p.
1170. •

93. The train, although moving from
one point to another in the state of Wash-
ington, was hauling merchandise from
points outside of the state, destined to
points within the state, and from points



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 67 of 214)