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accident was due to their negligence in a duty reasonably imposed upon them, and, though they were fellow servants, yet under this statute their negligence was that of the master. The fellow-servant rule has been so much ingrained in both bench and bar that this point was not made on the trial; but it was directly in the evidence and justified a refusal to dismiss for lack of the defendant's negligence.
Besides, there was also evidence in the case that the rear of the train was not lighted, that no warning was given of the train's approach, and that the man at the rear, although he saw the lights, waited too long before trying to check the train. Since the accident happened at night, and the train was running swiftly and without any ready means of control, I think the case is clearly differentiated from Aerkfetz v. Humphreys, 145 U. S. 418, 12 Sup. Čt. 835, 36 L. Ed. 758, and I certainly do not think that as matter of law there was no negligence in operating in a freight yard four cars under their own impetus, after dark, without warning and without light. None of the cases cited by the defendant have a set of facts similar to this. Upon these two grounds therefore, and without considering the question of the necessity of stationing a man to watch the three, I am satisfied that there was evidence of the defendant's negligence.
The only important exception which remains is to that part of the charge which permitted the jury to find the defendant negligent in not stationing some one to watch the gang of men while at work. It was possible under the charge for the jury to find that, although there were lights upon the train, and that the trainman acted reasonably in not trying to stop the train before he did, yet the defendant was negligent in not giving standing instructions in such cases for some employee to watch for trains.
Such a person might have to engage in the work from time to time; but it is at least a fair question of fact whether some one should not all the time watch for the approach of trains. Had I myself sat upon such a jury, I should have thought that it was a reasonable necessity for the safety of the men, regardless of the practice of other roads, and that a railroad should have a rule instructing its employees always to maintain a watch, while at work in the dark.
It seems quite clear that, unless this is done, the attention of all will of necessity at times become directed upon the work rather than upon the danger.
The remaining question is of the application of the act of 1908, and that turns on whether the plaintiff was employed in interstaté commerce. The act in question was passed after the decision of the Supreme Court in the Employers' Liability Cases, 207 U. S. 463, 28 Sup. Ct. 141, 52 L. Ed. 297, in which a similar act was declared unconstitutional by a divided court, because it applied generally to all carriers engaged in interstate commerce. Some questions, however, were decided by the whole court in those cases, and one of these was that the act was not unconstitutional because it regulated the relation of master and servant; all the justices recognizing that Congress might regulate those relations while the master and servant were employed in interstate commerce. The present act was clearly passed to meet the objection of that decision, and I think it should therefore be construed as intending to include within the term “person employed in such commerce" all those persons who could be so included within the constitutional power of Congress; that is to say, the act meant to include everybody whom Congress could include. Under this construction the inquiry becomes whether Congress could constitutionally have passed a statute regulating the relation between a carrier-master and a servant who was engaged in the repair of a track used both for interstate and intrastate commerce. * Preliminarily the distinction should be noted that the act will not necessarily apply to the same person in all details of his employment. One man might have duties including both interstate and intrastate commerce, and he would be subject to the act while engaged in one and not the other. This being so, the question is whether his repairing of a switch is such employment, when the switch is used indifferently in both kinds of commerce. Suppose the track had crossed a corner of a State, and there was only one station within that State so that all trains crossing over that track must necessarily be engaged in interstate commerce. Would not a track worker engaged in the repair of such a track be engaged in interstate commerce ? I do not think that he would be any the less so engaged than the engineer on the locomotive or the train dispatcher who kept the trains at proper intervals for safety. Of course, it is not necessary that the man must personally cross a State line. If the repair of such a track be interstate commerce, does it cease to be such because there are two stations within the State and some of the trains start at one and stop at the other? I can not think that this is true, although counsel have referred me to no case upon the subject and I have found none. The track is none the less used for interstate commerce, because it is also used for intrastate commerce, and the person who repairs it is, I think, employed in each kind of commerce at the same time.
Despite the earlier ruling in Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23, it has in recent times been stated several times by the Supreme Court that State statutes may indirectly regulate interstate commerce, even though Congress may at any time itself under its proper constitutional powers, enact a provision of directly opposite tenor. (Sherlock v. Alling, 93 U. S. 99, 23 L. Ed. 819; Reid v. Colorado, 187 U. S. 137, 23 Sup. Ct. 92, 47 L. Ed. 108.) If, as was held in those cases, a State has the power to regulate such commerce until Congress intervenes, because it is as well within the State's proper powers, must not the corollary be true as well, that Congress may intervene, even when the effect of that intervention be incidentally the regulation of intrastate commerce as well ? Could not Congress, for example, provide that all tracks used in interstate commerce must be of a standard width and weight? Would that not affect all tracks used in such commerce, although they likewise were used for intrastate commerce? Of course, anyone could use any other tracks he chose for intrastate commerce; but it can surely not be a ground to limit Congress's proper powers that the track has a joint use. If so, the repair of such tracks must be a part of interstate commerce, and under the Employers' Liability Cases, supra, the relations of master and servant arising between the railroad and its employees engaged in repairing the track are similarly within the power of Congress.
I am therefore of opinion that the plaintiff was at the time engaged in interstate commerce and entitled to the rights secured by this act. That being so, it is a matter of no consequence whether the train that struck him was engaged in that commerce or not. It is true that the act is applicable to carriers only “while engaged” in interstate commerce, but that includes their activity when they are engaging in such commerce by their own employees. In short, if the employee was engaged in such commerce, so was the road, for the road was the master, and the servant's act its act. The statute does not say that the injury must arise from an act itself done in interstate commerce, nor can I see any reason for such an implied construction.
I will therefore deny the new trial and direct judgment on the verdict. The defendant, if it wishes, may have a certificate on the jurisdictional point direct to the Supreme Court, though that opens only a limited review.
HOURS OF LABOR OF EMPLOYEES ON
ON RAILROADS_FEDERAL STATUTE-TIME ON DUTY-United States v. Minois Central Railroad Company, United States District Court for the Northern District of Iowa, 180 Federal Reporter, page 630.-The United States brought an action against the company named for a violation of the law of March 4, 1907 (34 Stat. 1415), which limits the hours of labor of certain employees on railroads to 16 in any 24-hour period. The particular point involved was the rule of the company requiring men to report 30 minutes before the time for their trains to leave, which time the company contended should not be counted as a part of the duty period. This view was rejected by the court, as appears from the following quotation from the opinion, which was delivered by Judge Morris:
The question here is as to the effect of the rule of the company requiring men to report 30 minutes before the leaving time of the train to do the things required by the rule, coupled with the fact that this man did comply with that rule.
I do not think the custom of the company not to strictly enforce the rule makes any difference. This man complied with the rule. He arrived at the engine 30 minutes before the leaving time of the train, and was actually engaged in doing the things required by the rule; and the question here is whether he was during that time, within the meaning of the act, actually engaged in or connected with the moving of that train. That is the question here. In my opinion this man was on duty, within the meaning of the act, from the time he went there and commenced to supervise, or overlook, that engine in preparation for the trip. It does not make any difference whether he was paid for this time or not. That was the time his work and the strain on him began. The work of an engineer, an employee of the railroad, begins when under the rule of the company he is there and is at work in connection with the preparation of the engine for the moving of the train. He must look over that engine. He must see that it is oiled up. He must see that the air brakes are all right. He must move the engine down over the tracks and across the switches to connect it with the train. And in my opinion he is on duty, within the meaning of the act, during the time he is doing these things. If he goes there a half an hour before the time to start to do these things, during the time he is there doing them he is on duty. That is my view of it.
MINE REGULATIONS-INSPECTION—GOOD FAITH AS DEFENSE AGAINST LIABILITY FOR INJURY--Aetitus v. Spring Valley Coal Company, Supreme Court of Illinois, 92 Northeastern Reporter, page 579.This was an action by Charles Aetitus to recover damages for an injury received by him on January 21, 1907, while employed by the company named as a miner. Aetitus and another were directed by the mine manager to cut recesses for timbers in an entryway to be converted into a stable, and while so engaged rock fell upon and injured the plaintiff. The mining law of Illinois, chapter 93, Hurd's R. S. 1909, requires a legally qualified mine examiner to inspect working places before men are set to work therein and to mark dangerous places. The mine manager, the assistant mine manager, and the mine examiner testified that they had each examined the working place in question and that it was not a dangerous place, so that no report of danger was made nor were any danger marks placed. The jury found on the evidence that the place was in fact dangerous and that it should have been so marked. Damages were awarded in the circuit court of Bureau County and affirmed on appeal to the appellate court. The company again appealed to the supreme court, which in turn affirmed the judgment for damages, June 29, 1910, though by a divided court. The point on which the court differed was as to the duty of the inspector and the employer's right to rest on a bona fide performance thereof. On this point Judge Hand, who delivered the opinion of the court, said in part:
The case was apparently tried by plaintiff in error on the theory that if the mine examiner and the mine manager looked the place over where the injury occurred and thought it was not dangerous, and their determination of that fact was made in good faith, the plaintiff in error would not be liable for the injury to defendant in error even though the jury were justified, from the evidence, in finding the place was dangerous and should have been marked as a dangerous place; in other words, that "good faith” on the part of the owner or operator of a coal mine in a suit for a willful violation of the mines and mining act is a defense. We do not think the owner or operator of a mine can excuse himself from liability growing out of a willful violation of the mines and mining act—that is, from a conscious violation of the act-in failing to properly examine the mine and mark dangerous places therein which are known to him, on the ground that his examiner or manager in good faith thought the place was not dangerous. If this were the law, the right of recovery would not rest upon a conscious violation of the statute but upon the opinion of the owner or operator or his vice principal-that is, his examiner or manager--as to whether the mine was safe or in a dangerous condition. It has been repeatedly held by this court that it is the duty of the owner or operator of a mine to have his mine examined and if it is in a dangerous condition to have the dangerous places designated by the statutory marks, and if he fails in either particular, with knowledge of its dangerous condition or with knowledge of facts from which he ought to know of its dangerous
condition, he is liable to a person in the mine under his employ who is injured as a result of his willful failure to obey the mandates of the statute. If the mine is in a dangerous condition, and the owner or operator has failed, with knowledge of its condition, to comply with the statute, he is liable, and he can not excuse himself on the ground that he had the mine examined and in good faith thought it was not dangerous. His liability does not rest upon the ground that in good faith or bad faith he thought there was no danger in the mine, but upon the ground that he has, knowing the facts which made the mine dangerous, failed to have the statutory marks properly placed in the mine. When the mine owner or operator is advised of the conditions in the mine, he must place in the mine, if it is dangerous, the statutory marks, and, if he fails to do so, he acts at his peril, and he can not excuse himself because he or his examiner or manager may think the mine safe. To so hold would be to permit the mine owner or operator, or his examiner or manager, to usurp the functions of the court and jury, and to pass upon a question which, in every case like this, is a matter of proof and is to be determined as a fact by the jury.
It is said by the plaintiff in error that the duties imposed upon the owner or operator of a mine by the mines and mining act in some instances are mandatory, while in others the performance of the duties imposed by that act upon the owner or operator involves the exercise of judgment, and that the performance of the latter class of duties, among which is that of discovering and marking dangerous places in the mine, involves only the exercise of good faith on the part of the owner or operator. We do not think the distinction pointed out a valid one, but are of the opinion this court is committed to a different doctrine. In Eldorado Coal and Coke Company v. Swan [227 Ill., 586, 81 N. E., 691), the claimed violation was the failure to maintain a light at the bottom of the shaft. The evidence showed there was a light at that place, but was conflicting as to the size and power of the light. The statute required a light sufficient to show the landing and surrounding objects distinctly, and the contention was made that the determination of the question whether the light was sufficient to show the landing and its surroundings distinctly involved the exercise of judgment, and, if the appellant company had attempted in good faith to comply with the requirements of the statute in that particular, it was relieved from liability, The court held otherwise. On page 590 of 227 Ill., page 692 of 81 N. E., it was said: “Appellant's most serious contention is that, even if it be conceded that the light was not fully up to the legal requirements in respect to the amount of light, still, when the evidence all shows that appellant had made an honest effort to comply with the statute and had partially failed, it can not be adjudged guilty of a willful violation of the law even if its partial failure arises from negligence on its part in the selection of the means or the method of their application with the view of complying with the statute. This argument is more ingenious than sound. The fallacy of the argument results from the assumed meaning of the word 'willful,' as it is used in the miners' act. If it were necessary to show an evil intent or any blamable conduct to establish the willfulness contemplated by this statute, then there would be more force in this contention. But no such construction of this statute