Brown v. Pere Marquette Railway Co.

Sharpe, C. J. Defendant reviews by writ of error a judgment recovered by plaintiff under the Federal employers’ liability act for damages for injuries sustained by him in a collision between two trains on the defendant road. An extra freight train (No. 1114) left Saginaw at 3 p. m. on January 12, 1923, for Toledo in the State of Ohio. The crew consisted of Engineer Salow, Fireman Yerebeck, Conductor Elliott, rear Brakeman Fredericks, and plaintiff as head brakeman. It reached Plymouth, a distance of 82 miles from Saginaw, at 12:10 a. m. without incident. It took on some coal there and left at 1:50. It then consisted of 78 cars. The night was cold. Soon after leaving Plymouth, engine trouble developed, due in part to the coal which, was taken on there and to leaks in the flues of the boiler. Occasional stops between stations were made to get up sufficient steam to move the train. It stopped for water at Monroe, and with occasional stops passed through Erie and reached Alexis Booth, a flag station three miles out of the Toledo yards. The plaintiff, who was riding on the engine, had assisted the engineer and fireman in their *532 efforts to keep up steam. As the train was pulling into Alexis Booth, he alighted from the engine and went into the way car. It then lacked but a few minutes of 7 o’clock, at which time the crew would have completed 16 hours of continuous service. The train was stopped by shutting the throttle and applying the brakes. As plaintiff alighted, he spoke to the engineer about informing the dispatcher of their whereabouts and what had occurred, and said that their time was up at 7 o’clock. There was, a side track on which the train could have been placed. No effort was made to do so. The engineer testified: “Q. You did not try to back in, as a matter of fact? “A. I did not have time to back in. “Q. You mean by that, Mr. Salow, on account of your 16 hours expiring you did not have time to back in? “A. That way I understood the law, yes. “Q. If you had continued on, notwithstanding this 16-hour law, you could have backed the engine in? “A. Yes.” The plaintiff testified that the train could have been placed on the passing track, but that the 16 hours of continuous service would have been exceeded in that work. Just before stopping, the engineer blew the whistle to advise the conductor and rear brakeman that a flag should be put out to protect the rear of the train. In the nighttime, torpedoes are placed on the track to take the place of a flag. The engineer went to a telephone box, near which the engine had stopped, called the dispatcher at Saginaw, and informed him that they were at Alexis Booth; that “Our time is up at 7 o’clock, and the engine is in very bad condition that he heard the dispatcher call Ottawa yards and say that “Extra 1114 was at Alexis, time up at 7 a. m., and must have help to get in;” and that he was advised that a relief engine and crew would be sent from the Toledo yards to take the train in. That *533 the train was on the main track was not mentioned. Plaintiff testified that his intention when he left the engine was to take advantage of the rest period provided for by the statute hereafter referred to. As soon as he entered the caboose, 'he took the bedding which the train men themselves provided, made up a bed, lay down and went to ‘sleep. The rear brakeman and conductor did likewise. Before doing so, the conductor filled out and signed his daily report, which showed that 'he and the two brakemen went off duty at 7 a. m., and that they had been working for 16 hours. The plaintiff testified that when he entered the caboose he asked the rear brakeman if he had put out the signals and was informed that he had. At 7:10 that morning defendant’s fast express left Detroit for Toledo. At 8:56 it collided with the rear end of the freight train. The rear brakeman on the freight train and a student fireman on the express were killed, and plaintiff and the conductor were injured. Plaintiff’s action is brought under what is known as the Federal employers’ liability act (35 U. S. Stat. p. 65 et seq.). Right of recovery thereunder is limited to employees engaged in interstate commerce and to one “suffering injury while he is employed by such carrier in such commerce,” etc. It is conceded that plaintiff was engaged in interstate commerce while assisting in the movement of the train from Saginaw to Alexis Booth. The serious question here presented is whether he was in the employment of the defendant at the time he was injured. It was raised by defendant by a motion to direct a verdict in its favor when the proofs were closed, which was taken under advisement by the court. On renewal after verdict, the motion was denied. The Federal statute (34 U. S. Stat. p. 1416 et seq.), commonly spoken of as the “hours of service act,” is *534 so readily accessible that we refrain from quoting it in full. It provides that— “it shall be unlawful for any common carrier * _ * * to require or permit any employee subject to this act to be or remain on duty for a. longer period than sixteen consecutive hours that he then must be relieved and not— “permitted again to go on duty until he has had at least ten consecutive hours off duty.” The act contains a proviso, reading as follows: “Provided, That the provisions of this act shall not apply in any case of casualty or unavoidable accident or the act of God; nor where the delay was the result of a cause not known to the carrier or its officer or agent in charge of such employee at the time said employee left a terminal, and which could not have been foreseen.” Carriers violating the act are liable to a penalty of not less than $100 nor more than $500, to be ¡recovered in a suit brought in the district court of the United States. It is defendant’s claim that plaintiff’s employment ceased when he left the locomotive and went to the caboose and made up his bed and went to sleep thereon; in other words, that he had quit work, and, without violating the law, the defendant could not have required him to perform service or even permitted him to do so until the 10 hours of rest to which he was entitled had expired. Plaintiff’s counsel insist that until the train crew was relieved by another crew arriving and taking charge of the train they were still on duty and in the employ of the defendant. In 2 Roberts’ Federal Liability of Carriers, § 892 et seq., the purpose, scope, validity and interpretation of the hours of service act are discussed and the Federal cases construing and applying it are cited, and *535 many of them are quoted from and commented upon. This chapter may be read with profit. The purpose of the act is to promote the safety of interstate commerce; to protect the lives of railroad employees and the lives and property intrusted to railroads as carriers. The employees are not penalized if they work overtime. In San Pedro, etc., R. Co. v. United States, 213 Fed. 326, 130 C. C. A. 28, it was said: “It was thought futile to attempt to control the employees in their use of their off time; therefore, as being more practical and efficient, the command was laid upon and confined to those who gave them employment in their regular occupations.” The prohibition against requiring, or even permitting, employees to remain on duty for a longer period than 16 consecutive hours has been applied with considerable strictness in actions brought in the Federal courts for the recovery of the penalty. The courts have held that the law means just what it says, that employees within its provisions must have at least 10 continuous hours of rest afforded them after having worked for 16 hours. The work period begins when employees, acting under orders, report for duty, and the carrier is bound to relieve them when they have been on duty for 16 hours, unless excess service be required because of the unforeseen casualties provided for in the act. In the event of such a casualty, they must be relieved if the train is at a place where such relief is possible. Should it occur between stations, they may continue in service until relieved by another erew, or, if possible, they may take their train into the next station on their run. Rule 99 of the defendant provides: “When a train stops or is delayed, under circumstances in which it may be overtaken by another train, the flagman must go back immediately with stop signals a sufficient distance to insure full protection, and place one torpedo upon the rail on the engineman’s side *536 of an. approaching train. When recalled, he must place an additional torpedo not more than 200 feet from the first one and at night or in fog or severe storm place one lighted red fusee outside the rail on engineman’s side before returning to his train. “The front of a train must be protected in the same way by the head brakeman, or, when necessary, by the fireman.” The plaintiff alighted from the engine and went to the way car because his 16 hours of continuous service had expired. If still on duty, he should have remained on the engine or protected it as provided for in the rule. It is certain that he was performing no actual service for his employer when he lay asleep in his bed. To use a common expression, “he had quit work” and was not called upon to perform any other service until the collision occurred. Whatever duty may have rested on the engineer or fireman to look after their engine until the relief crew arrived, it is clear that none rested on the conductor or brakemen. They had no duty to perform; there was nothing that they could do in the service of the defendant. Nor would they have been' called upon to do anything on the arrival of the relief crew. The conductor had made out and signed his daily trip sheet, and had left it in the usual place in the caboose, to be taken by the conductor of the relief crew. In it he stated that he and the brakeman had gone “off duty” at 7 a. m., and that the train was “tied up at Alexis.” His work and that of the brakemen, so far as the further movement of the train was concerned, was at an end when they lay down to sleep. They expected, and had a right to expect, that their train would be pulled into the yards by another engine, in charge of another train crew. Had not the collision occurred, they would have ridden in in the way car in which they were sleeping. In railroad parlance, this is called “deadheading.” They would not have been required *537 to perform, nor would they have been held responsible for the performance, of any service or duty while so riding, and would not have been “on duty” during that time. Osborne’s Adm’r v. Railway Co., 158 Ky. 176 (164 S. W. 818, Ann. Cas. 1915D, 449). On July 9, 1919, the superintendent of the division on which this train was running had sent a “general notice” to “all concerned,” stating: “All employees who come under the hours of service law must not exceed their hours of service except only on written instructions signed by the superintendent.” It is apparent that these employees construed this notice literally. When the train reached Alexis Booth, and their 16 hours of continuous service had expired, they quit work. The daily report made by the engineer stated that the train was “tied up at Alexis on account of 16 hrs.” Had the engineer and conductor not so concluded, it seems certain that they would have placed the train on a side track. The cases in the Federal courts involved prosecutions of the carriers for violating the law in requiring or permitting the employees to work longer than 16 hours. In those cases, the carriers Were insisting that certain services were not within the act, or that there had been intervening hours of rest, or that a casualty relieved them from the operation of the law under the proviso in the act. The courts, after stating the purpose of the act, declined to permit any excuse for its violation not fairly within its terms. The words “on duty” used in the statute very clearly express the legislative intent. An employee may be inactive, and yet on duty. He is on duty if at his post and ready and willing to work, though he may be but awaiting orders or the removal of hindrances Which prevent him from performing his duties. Denver, etc., R. Co. v. United States, 233 Fed. 62, 147 C. C. A. 132. *538 In Great Northern R. Co. v. United States, 211 Fed. 309, 127 C. C. A. 595, a freight train was run into a siding, the 16-heur period of service having elapsed. The train crew other than the fireman retired to rest in the caboose. The fireman remained on the- engine to keep up steam. Permitting him to perform this work, after he had been on duty as a fireman for 16 hours, was held to be a violation of the statute. No claim, however, was made that the employees at rest in the caboose were on duty. It is urged that the plaintiff was not relieved by any order from the superintendent or train dispatcher. But a man does not have to receive an order to quit work when his hours of daily service have expired. The plaintiff knew this. He did not inquire of the conductor, his superior in the operation of the train, whether any further or other service was required of him. He treated the statute and the notice of the superintendent as a command, and in obedience thereto he left the engine, where his- duty, if at work, required him to remain, and went to the caboose and made up his bed and lay down upon it and went to sleep: In our opinion he was not on duty at the time the collision occurred, and the defendant’s motion for a directed verdict should have been granted. The judgment entered is reversed and set aside and the cause remanded, with directions to the trial court to enter a judgment for defendant on its motion non .obstante veredicto, with costs of both courts to defendant. Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred with Sharpe, C. J. Snow, J., did not sit.