William Wheeler Thornton.

A treatise on the Federal employers' liability and safety appliance acts, and on the federal statutes on hours of labor, including Interstate commerce commission's rules and diagrams for equiments of cars online

. (page 83 of 102)
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with the law. Inasmuch as inability alone will not excuse
a company from a literal compliance with the law, it is the
duty of such company to have the material and facilities
on hand at every repair point to make repairs of the kind



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APPENDIX G. '''^5

necessary to comply with the provisions of the safety-appli-
ance act. And if a defect exists at a repair point, or at
any place where such defect could have been repaired, and
the company moves the car while in the defective condition,
it does so at its peril, and it becomes then subject to the
penalty of the law. The law is not satisfied by the exercise
of reasonable care to this end; but the company must at its
peril discover and repair all defects before removing a car
from a repair point.

A railway company is under no obligation to receive from
any other company cars defective as to safety appliances,
and when it does receive cars from another company at any
point it must know at its peril that each car so received is
equipped with the safety appliances required by law, and
that such appliances are in good order and condition.

The penalty under the safety-appliance act applies to every
defective car hauled contrary to its provisions, whether or
not each car was hauled separately or in a train together;
and it matters not how far each car was hauled; it is the
use of the car in a defective condition that the law seeks
to prevent and not the length of the haul.

Now, as to the difl!erent counts:

In the first and second counts of 13757 you are instructed
to find for the plaintiff.

The third count charges the hauling of C, B. & Q. car No.
61488 when the coupling and uncoupling apparatus was
missing from the B end and when said car was chained to
another car. If you •believe that the defendant so hauled
this car from Truckee in this condition, and that Truckee
was a repair point along the line of the defendant company,
your verdict should be for the Government.

The fourth count charges the hauling of S. P. car No.
48602, when the knuckle was missing from the' A end and
when the car was chained to another car. You are instructed
that the law lays an unqualified duty upon a railroad com-
pany to keep its coupling devices in a certain prescribed con-
dition, and if an employee of such company deliberately puts



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776



FEDERAL SAFETY APPLIANCE ACT.



such devices in another condition, which condition the law
undertakes to prevent, then the company is liable to respond
under the penalty for the unlawful act of the employee, and
if you believe from the evidence that the knuckle was removed
from this car for the purpose of chaining it to another car,
and that the car was so hauled in interstate traffic in that
condition, and in that condition it would be necessary for a
man to pass between the end of that car and an adjacent car
in order to couple and uncouple them, your verdict should
be for the Government.

The fifth count charges the hauling of B. & 0. car No.
57286, when the keeper or inner casting was broken on one
end and the uncoupling lever hanging down on the coupler.
If you believe that this uncoupling lever was in such con-
dition that any reasonable effort would not operate the same,
and that in order to uncouple this car from another car it
would have been reasonably necessary for a man to go between
the cars, -and that in that condition the car was hauled over
the line of defendant's road in interstate traffic, then your
verdict should be for the Government on that count.

The sixth count charges the hauling of C, M. & St. P. car
No. 58960, when the bottom clevis pin was missing on th^
A end. If you believe that the car was in that condition,
and that the absence of this pin rendered the uncoupling
lever inoperative, and that in order to uncouple this car
from another car it was reasonably necessary for a man to
go between the ends of the cars, and that in that condition
the car was hauled over the line of defendant's road in inter-
state traffic, then your verdict should be for the Government.

The seventh count refers to a ** kinked" chain. If this car
left Truokpe while the chain was so ** kinked,'* and while in
this condition the coupler was inoperative, requiring the rea-
sonable necessity of a man to go between the cars to couple
or uncouple them, your verdict should be for the (Jovemment.

The eighth and ninth counts are similar to the fifth and
seventh counts, respectively, and what I have said in regard
to those, you can apply to these counts.

The tenth and the last count in No. 13757 charges the use



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APPENDIX G. 777

of a locomotive engine when the coupler was missing from
the A or front end. It is not necessary that this end of the
locomotive was used or was coupled to any car, that is, front
end or A end; it is the use of the locomotive in a defective
condition that the law seeks to prevent, and if you believe
that this locomotive was used by the defendant upon its
line of railroad in connection with other cars engaged in
hauling interstate traflBc, and not used for the purpose
of taking it to the nearest point where it could be
repaired, your verdict should be for the Government. Of
course, if you find that it was only taken to Sparks, and
find that that was the nearest place where it could be re-
paired, and that it was only taken there for that purpose,
then your verdict should be for the defendant on that count.

The first and second counts, and the only counts, in case
No. 13760, charge the hauling of two cars chained together.
If you believe that these cars were delivered to the Southern
Pacific Company in such a condition by another company,
that is, if you believe they were delivered to them in such
a condition as has been testified to by the witnesses for the
Government, and you should find that the defendant in
hauling interstate traffic used them on its train engaged in
interstate traffic, your verdict should be for the Government.
One carrier can not receive a defective car from another
carrier and exccuse itself; it must discover such defect at
its peril before it receives and hauls any such car in inter-
state traffic.

I need not say to you, but I will say to you, that you are
the exclusive judges of the credibility of the diflPerent wit-
nesses who have testified in your hearing; that is, you must
determine for yourselves which witness or witnesses you
will believe, and then after you have fixed that in your mind
you are al^o the exclusive judges of what ultimate facts are
shown by such testimony.

In considering this testimony, positive testimony is to be
preferred to negative testimony, other things being equal;



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778 FEDERAL SAFETY APPLIANCE ACT.

that is to say, when a credible witness testifies as to the
existence of a fact at a particular time and place and an-
other equally credible witness testifies to having failed to
observe such fact, the positive declaration is ordinarily to
be preferred to the negative in the absence of other testi-
mony or evidence corroborating the one or the other. Never-
theless, that is a question for you solely in passing on the
weight to be given to this positive and negative testimony.
If, in your judgment, the testimony of the witness who says
that he did not see a thing is entitled to weight; that the
circumstances surrounding him at that time, at the time
he made the examination, were such that if the fact had
existed he would have seen it, then as a matter of course
you would be at liberty to find that the fact did not exist;
that is simply a rule of common sense in weighing testimony.

In regard to the burden of proof, the burden of proof is
on the Government to establish by preponderance of evi-
dence the facts charged in the difl!erent counts of the peti-
tion. And by a preponderance of evidence is not meant the
greater number of witnesses, but it means that evidence
which to your mind is the most satisfactory and is entitled
to the greatest weight.

A Juror. I should like to ask a question: In taking that
engine from Truckee to Sparks, is it a breaking of the law
as interpreted by hitching it to a train, or does it have to
go down alone?

The Court. If Truckee was a repair point and a place
where the engine ought to have been repaired, and it was
attached to a train engaged in interstate traffic and taken
to Sparks, that would be a violation of the law. But if
Truckee was not a repair point, and the engine could not have
been repaired at Truckee, and was simply taken down to
Sparks for the purpose of repair, I should say that that
would not be a violation of the statute.

Another Juror. I should like to ask a question in regard
to the two cars at Richmond: Would those two cars be con-
sidered as engaged in interstate traffic!



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APPENDIX G. 779

The Court. That is a question for the jury to determine
from the evidence in this case. If they were attached to
other cars engaged in interstate traflBc, then they wouM be
engaged in interstate traffic.

Another Juror. If the engine referred to needed re-
pairs, and could only be repaired at Sparks, but was used
between Truckee and Sparks in the hauling of a train as
far as that point, should we find for the Government?

The Court. If the engine could not be repaired at
Truckee, and the company, under the law I have laid down
before you, was not required to be able to repair it there,
and it was moved to Sparks for the purpose of being re-
paired, I should say that the mere fact that it was attached
to an interstate traffic train would not render the company
liable if the main purpose in removing was to repair it.

(The jury returned the following verdict: In case 13760,
for the United States; in case 13757, for the United States
on the Ist, 2d, 3d, 4th, 5th, 6th, 7th, 8th, and 9th causes
of action set forth in the complaint; and for the defendant
on count 10.)



UNITED STATES v. BOSTON & MAINE RAILROAD

COMPANY.

(In the District Ckmrt of the United States for the District of
Massachusetts. )

[168 Fed. 148.]
Decided January 5, 1909,

(Syllabus by the court.)

1. Section 4 of the safety appliance act requires secure grab-irons or
handholds at those points in the end of each car where they are
reasonably necessary in order to afford to men coupling and un-
coupling cars greater security than would be afforded them in the
absence of any grab-iron or handhold at that point or of any appli-
ance affording equal security with a grab-iron or handhold.



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780 FEDERAL SAFETY APPLIANCE ACT.

2. If at any place in the end of a car there is not a grab-iron or hand-

hold, properly speaking, but some other appliance, such as a ladder
or brake lever, which afforded equal security with a grab-iron or a
handhold at that point, the Federal safety appliance law so far as
grab-iron or handhold at that point is concerned has not been vio-
lated. Having something there which performs all. the functions of
a grab-iron or handhold is just the same thing as having what is
properly called a grab-iron or handhold at that point.

3. Unless the Government satisfies a jury by a preponderance- of the

evidence that there was no grab-iron or handhold on the car where
there should have been one, the jury should find for the railroad
company.

4. A man engaged in connecting or disconnecting the air hose between

the cars is engaged in coupling or uncoupling cars within the mean-
ing of the safety appliance act, if it is necessary for him to connect
or disconnect that hose in order to connect or disconnect the cars.

6. Where a car is not properly provided with grab-iron on a given day,
and the train stops for a certain time and then goes on again, there
are not two violations of the law, but only one, because the car is
all the time being moved in the same train. It makes no difference
that it is being so moved on two different days.

6. A "train" is one aggregation of cars drawn by the same engine, but
if the engine is changed then there is a different train.

William H. Garland, assistant United States attorney,
and Phillip J. Doherty, special assistant United States
attorney, for the United States.

Charles S. Pierce, for defendant.



instructions to jury.

Dodge, District Judge (charging jury) :

The statute which we are considering in this case is a
statute passed by Congress under the power which is in-
trusted to Congress by the Constitution to regulate com-
merce between the several States. Congress makes this law
in regulation of interstate commerce; it has the power to
make such regulations. If we were dealing here with a rail-
road or a train which was not engaged in interstate com-



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APPENDIX G. 781

merce at all, this statute would not apply. It does not
seem to be disputed in this case that the defendant railroad,
and the car with which you are concerned, were both en-
gaged in interstate commerce, and therefore were subject to
the provisions of the statute. The defendant railroad is
charged in the declaration which the Government has filed
against it with five different violations of the statute. It
is for the jury to say as to each of those violations charged
whether the defendant has committed it or not.

As to three of the violations charged, while the jury is still
to say whether this defendant has committed them or not,
they are saved the trouble of deciding any disputed questions
of fact, as this case goes to them. As to the violation of
the statute charged in the second count of the declaration,
the defendant admits that it has been committed, and that
the jury may find for the plaintiff upon the count. The
same as to the third count of the declaration, the jury are
to find for the plaintiff also on that count by consent of the
defendant.

As to the fourth count of the declaration, the court has
ruled that the evidence is not sufficient to warrant a verdict
for the plaintiff, and the jury therefore will find for the
defendant as to that count by direction of the court. You
are aware, gentlemen, that in all cases tried before you,
questions of law are for the court and questions of fact are
for the jury. The question presented here on the fourth
count of the declaration is an example of a question of law.
The court takes upon itself the responsibility of directing
the jury to find for the defendant on that count. In this
instance, and in all other instances where either party
thinks that the court has decided the question wrongly, they
have a remedy by appeal. They may go to the Circuit
Court of Appeals within this circuit and have that court
determine whether this court has rightly decided the ques-
tion or not. But it is for you to follow the direction of this
court for the time being, in order that the question may b^



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782 PEBEBAL SAFETY APPLIANCE ACT.

properly presented on appeal. Therefore although your
verdict as to the fourth count is by direction of the court
a finding for the defendant, it is a verdict of which the
court takes the entire responsibility.

Now, gentlemen, I come to the two counts which are sub-
mitted to you for your consideration. They both relate to
the same car — a car No. 24089, a car marked **New York,
New Haven & Hartford Railroad,'' a box car — and the
Government charges as to that car, while being hauled in a
train from Springfield to the Brightwood yard, that on
September 19, 1907, it was not provided with a grab-iron
or handhold such as the law requires. And in the fifth count,
as to the same car, the Government charges that on September
20, 1907, while being moved from the Brightwood yard
northerly, it was not provided with a grab-iron or handhold
such as the law requires. It is not disputed, as I have
stated, that this car was being used in interstate commerce
at these times. Now, the question for you to decide is: Did
that car, or did it not, have on it grab-irons or handholds
such as the statute requires that it should have while it was
being moved by the railroad in interstate commerce!

I will read to you once more the language of the section
of the statute with which we are concerned:

**From and after the first day of July, eighteen hundred
and ninety-five, until otherwise ordered by the Interstate
Commerce Commission, it shall be unlawful for any railroad
company to use any car in interstate commerce that is not
provided with secure grab-irons or handholds in the ends
and sides of each car for greater security to men in coupling
and uncoupling cars.''

There is no question made either on September 19 or
September 20 about the sides of this car. We are concerned
only with the ends. Now, taking that section as it stands,
and giving due weight to the language in which the require-
ments are expressed, we have to consider just what they
mean as applied to the question arising in this case, and I



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APPENDIX G. 783

shall instruct you, gentlemen, that section 4 requires secure
grab-irons or handholds at those points in the end of each
car where they are reasonably necessary in order to afford
to men coupling or uncoupling cars greater security than
would be afforded them in the absence of any grab-iron or
handhold at that point or of any appliance affording equal
security with a grab-iron or handhold. If at any place in
the end of this car there was not a grab-iron or handhold,
properly speaking, but some other appliance, such as a ladder
or brake lever, or whatever else you please, which afforded
equal security with a grab-iron or a handhold at that point,
then I shall instruct you that the law has not been violated
so far as a grab-iron or handhold at that point is concerned.
Having something there which performs all the functions
of a grab-iron or a handhold is just the same thing as having
what is properly called a grab-iron or a handhold at that
point. It may not be possible to say that a coupling lever
or a ladder is a grab-iron or a handhold, but if it affords
the same security to a man who may need to use one that
a grab-iron or a handhold, properly speaking, would afford,
then, in my judgment, the statute has not been violated.

The question of fact, therefore, for you is: Are you satis-
fied by a preponderance of the evidence that there was any-
where in the end of this car a grab-iron or a handhold want-
ing where it should have been according to the test which
I have given you; that is, where a grab-iron or a handhold
would be reasonably necessary in order to afford to men
coupling or uncoupling cars greater security than would be
afforded them in the absence of any grab-iron or handhold
at that point!

Now, that question you are to determine by a prepon-
derance of the evidence here. You have listened to the evi-
dence of the two inspectors of the Interstate Commerce
Commission, who tell you that they examined this car on
the two days referred to, and they described to you pretty
fully what they found on the end of the car in question, and



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784 FEDERAL SAFETY APPLIANCE ACT.

they tell you that at a certain place there was no grab-iron
or handhold.

Now, on the other hand, you have the evidence introduced
by the defendant railroad, which may induce you to think
that the presence of a grab-iron or a handhold where the in-
spectors have said that one was absent would make no dif-
ference, so far as affording greater security to men is con-
cerned.

You are to be satisfied by the Government in this case
by a preponderance of the evidence that there was no grab-
iron or handhold where there should have been one. If
you are so satisfied, you should find for the plaintiff, for the
Government in this case. Unless the Government has so satis-
fied you by a preponderance of the evidence, you should find
for the defendant.

Now, you are to remember in this case that you are to
decide it according to a preponderance of the evidence. In
all the other cases to which you have listened here and
which, as I recall it, have been criminal cases, I have in-
structed you that the Government, in order to convict, must
prove its case beyond a reasonable doubt. This not being a
criminal case, according to my view, the same rule does
not prevail. A preponderance of the evidence in this case
is sufScient; and what does that meant It means that after
balancing and considering the evidence on the one side and on
the other you are not left in doubt, but that you find
that the evidence for the Government outweighs the evi-
dence brought here to meet it. If your minds after weighing
and considering the evidence on both sides are left in doubt,
if they are left equally balanced on the question, there is
no preponderance of the evidence; and in that event, as
I have told you, your verdict should be for the defendant.
It is necessary, in order to find a verdict for the plaintiff,
that the evidence for the Government should outweigh that
for the defendant.

I have stated to you that grab-irons or handholds are re-
quired by the statute to be at such points in the end of



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APPENDIX G. 785

this car where they are reasonably necessary in order to
aflford greater security to men in coupling or uncoupling
cars. Something has been said here about men connecting
or disconnecting the air hose with which the air brakes are
operated, and the question has been raised, is a man between
the cars simply to connect or disconnect air hose a man
engaged in coupling and uncoupling cars within the mean-
ing of the statute! Now, on that point I instruct you that
a man engaged in connecting or disconnecting the air hose
between the cars is engaged in coupling or uncoupling cars
within the meaning of the statute if it is necessary for him
to connect or disconnect that hose in order to connect or
disconnect the cars.

The Grovemment claims here that it has proved to you by a
preponderance of the evidence not only one violation of the
statute, but two. Now, on that point, gentlemen, you will
consider whether or not this car, in the first place, was un-
provided with grab-irons or handholds, as it should have
been, and, in the second place, whether it was moved by
this railroad in more than one train. Let us suppose that
you have found that that car was on a given day not properly
provided with grab-irons and handholds as the statute re-
quires. Let us suppose that that car was at the time being
moved in a train. Let us suppose that that train stopped
for some purpose, no matter what, for a while, and, after
having so stopped for a certain time, started up and went
on again. Now, in a supposed case like that, my instruction
to you would be that there were not two violations of the
law, but only one, because the car was all the time being
moved in the same train. I should instruct you. jsrentleraen,
that so long as the car is being all the time moved in thf»
same train, it makes no difference that it is being so moved
on two different days ; that so long as the car continups be-
ing moved by the railroad on the same train it makes no
difference that September 19 has run out and September
20 has come in; that that does not make two distinct viola-
tions of the statute, but the movement of the car being,



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786 FEDERAL SAFETY APPLIANCE ACT.

though on those two different days, all the time in one
train, there has only been one violation of the statute. You
will consider upon the evidence to which you have listened
whether this car has been moved in more than one train.
If you so find, it will be proper, provided you have been
satisfied by a preponderance of the evidence that it was
being so moved without the grab-irons and handholds which
the law requires, to find for the plaintiff both on the first
count and on the fifth count. If, on the other hand, you
are not satisfied by a preponderance of the evidence that the
car was moved in two trains, but was only so moved in one,
that both on September 19 and on September 20 the car
was continued all the time in one train, you should then find
for the plaintiff only on one of those counts, either the first
or the fifth, but you should not find for the plaintiff on
both of them.

Is there anything else which counsel desire me to speak to
the jury about!

[Counsel confer with the court at the bench.]

The Court. In regard to what makes a train, Mr. Foreman
and gentlemen, by ** train'* I understand one aggregation
of cars drawn by the same engine, and if the engine is



Online LibraryWilliam Wheeler ThorntonA treatise on the Federal employers' liability and safety appliance acts, and on the federal statutes on hours of labor, including Interstate commerce commission's rules and diagrams for equiments of cars → online text (page 83 of 102)