United States v. Minneapolis & St. L. R.

WADE, District Judge (after stating the facts as above). The petition contains 19 counts, each count charging violation of the act of Congress “limiting the hours of service of employés” upon railroads, approved March 4, 1907. There were four groups of employés, all in the freight service, on comparatively short runs, with the usual stops and delays for connections, and in all things practically typical of such service. There is no question under the issues but that, as to each group, more than 16 hours’ continuous service was required of the employés, unless in computing such service there be deducted certain periods of absolute release for a definite time. Group 1 was in serVice from 9:40 p. m. December 10th to 3:20 p. m. December 11th, 17 hours and 40 minutes, with a period of absolute release of 2 hours and 20 minutes from 4:35 a. m. to 6:55 a. m. [417] Group 2 was in service from 6:30 a. m. December 27th until 11:45 p. m. December 27th, 17 hours and 15 minutes, with a period of absolute release from 5 to 7 o’clock p. m., a period of 2 hours. Group 3 entered service on January 20th at 8:45 a. m. and continued until 2 o’clock a. m. January 21st, 17 hours and 15 minutes, with an absolute release of 2 hours from 3:35 p. in. to 5:35 p. m. Group 4 entered upon service at 6:15 p. m. January 28th and terminated service at 12:10 p. m. January 29th, and were in continuous service for 17 hours and 55 minutes, except for an absolute release for 2 hours — 4:50 a. m. to 6:50 a. m. January 29th. [1] So that the real questions to be determined in this case are whether the periods of release aforesaid broke the continuity of the service so that the employés were not required to remain on duty “for a longer period than sixteen consecutive hours.” Evidence was introduced showing what certain of the employés did during the periods of release, and disclosing the opportunities, under the circumstances, for rest. It will be observed that these periods .of rest of 2 hours and 20 minutes in one case, and 2 hours in the others, occurred at a time when the men had to eat, and 1 think this fact has some bearing in the case. The circumstances and the conduct of the different employes appear to be fairly typical of the circumstances and conduct of railway employés generally who might be given a release at the times and places involved, or at similar times- and places. As to one group, the period of release was at Oskaloosa, one of the terminals of the service, and in the other three, at Marshalltown, one of the terminals in their service. So that the question is fairly presented as to whether or not a period of release for 2 hours, or 2 hours and 20 minutes at a terminal, at meal lime, .is such a period .as to break the continuity of service, and avoid the penalty for violation of 1he act. After a careful study of all the cases, I am content to adopt the conclusion in Southern Pacific Co. v. United States (9th Cir.) 222 Fed. 46, 137 C. C. A. 584, which recognizes the rule that there may be “intermissions” of such period and under such circumstances as to break the continuity of the service. In this case it is held, and in my judgment properly held, that whether these intermissions are such as the law will recognize depends upon their character as periods of substantial rest. It is also held: “That the release of the employs must be definite and certain as to the period of time, and substantial and opportune as to the period of rest. A release for meals, or to stand and wail, for another train, is not sufficient. There must be a substantial and opportune period; otherwise, the duty is a continuous one.” Taking into consideration the purpose of the law “to promote the safety of employés and travelers,” were the periods of release in this case “periods of substantial rest” ? Were they “substantial and opportune as to the period of rest” ? In view of the adjudicated cases, I confess that this is a close question. It must be conceded that the statute is entitled to a liberal con418 structíon, with a view to effectuate the intention of Congress and promote the purpose which it had in view. . The statute is still in the early stage of interpretation. In the present view of the courts, it is purely a question of -fact as to whether a certain interval of time, during which an employe has an absolute release, is of such a character as to avoid the application of the rule. Applying the test announced in Southern Pacific Co. v. United States, supra, it is my judgment that the periods of release were not such as to break the continuity, and that therefore, as to each and all of the employes, the service was continuous within the meaning of the statute. I am not prepared to hold that an absolute release for a period of two hours at a time, other than at meal time, would not be such a period as might be considered “substantial and opportune” for rest. No arbitrary period can be fixed. The circumstances must determine. Sixteen hours’ continuous service is a long service in such work. The employes in this case were out upon their trips 17 hours and 40 minutes, 17 hours and 15 minutes, 17 hours and 15 minutes, and 17 hours and 55 minutes, respectively; out of 24 hours, there was less than 7 hours left. The periods of release, in the very nature of things, could not be periods of “substantial rest.” Rest is largely psychological. The circumstances must be such as to induce rest. The problem is not solved by saying that the men could have gone to bed and slept for an hour, or an hour and 20 minutes,- aside from the time they were at their meals. We are dealing with human nature. The public is interested in actual rest, not in opportunities for rest; and, while I realize that the employer cannot be held responsible for failure of employes to rest when the opportunity is given them, yet I feel that the opportunity, to be “substantial and opportune,” must be under such circumstances that the average employé will in fact rest. The law contemplates results and effects. It seeks to keep the dangerous business of railroading in the hands of men who are not worn out by fatigue and loss of sleep. I can readily see where, if employés were given an absolute release for 2 hours, in the middle of the afternoon, or at 10 o’clock at night, that the tendency might be to immediately seek repose; while, on the other hand, it must be apparent that where, as illustrated in this case, the engineer has a release for 2 hours and 20 minutes, he leaves his engine, goes to the roundhouse and registers, walks two blocks to a restaurant, gets ready for breakfast, and has his breakfast, followed probably by a smoke, the circumstances and his natural feelings would not be such as to lead him to go and lie down to rest or to sleep. It is a time of more or less diversion, and the natural tendency would be to do, what most of these men did, “sit around” and talk and visit, and “kill time” until ready to start on the return trip. An engineer must look over his engine; he must make his report; he must be back at his engine at a certain time. If he should go to sleep, he would have to be called at least 15 or 20 minutes before time in order to be ready. So that, when we consider all of these things, 2 hours, or 2 hours and 20 minutes, is a very short period. [419] It has been held, and I think properly held, that an hour at, meal time does not break the continuity of the service. It has been held that three hours of absolute release would break the continuity of the service. It is my holding that, when the release is at such time as that a meal is eaten during the period, under ordinary circumstances, 2 hours, or 2 hours and 20 minutes, is not a period of “substantial rest.” It is not an “opportune period” for rest, and, this being my view, there will be a judgment against the defendant in this case upon the 19 counts. [2] As to the amount of the judgment: It appears that the defendant has proceeded in the fixing of these periods of release with the purpose of complying with the law, and that it is in good faith in its claim that the periods of release exempts it from liability. I realize that the case is in a sense a “test case,” and I do not believe that the defendant should be made to suffer a heavy penalty under the circumstances. I feel that the ends of justice will be subserved by imposing in this case a fine of $100 upon each count — a total of $1,900. Counsel for defendant ask for a finding of facts. This I have made, and am filing herewith, together with the judgment herein.