Denver, & I. Ry. Co. v. United States

TRIEBER, District Judge (after stating the facts as above). The contention of the plaintiff in error is that neither the defendant, nor its employé, I. R. Ream, were engaged in interstate commerce, and therefore not subject to the requirements of the act of Congress, for the violation of which the penalty sought to be recovered by this action was assessed. Another ground upon which the plaintiff in error relies is that even if the defendant was engaged in interstate commerce at times, and the telegrapher was also so engaged at times, neither of them was engaged in interstate commerce on the day that the statute is alleged to have been violated. The plaintiff in error was engaged in interstate commerce by railroad between Marshall and Eldorado Springs, and between those stations it carried interstate passengers, baggage, and express, although it was hauled to Marshall by the Colorado & Southern Railroad, and none of that traffic ever passed through Globeville over the plaintiff in error’s road. The operator, Ream, was in the employ of the-plaintiff in error, and under the control of the chief train dispatcher of the Colorado & Southern Railway Company. As such operator he controlled the electric cars in trains of the plaintiff in error as they moved northward from Globeville toward Boulder. Some of these trains were special passenger trains of the plaintiff in error, which were sometimes operated between Denver and Eldorado Springs. Trains passing north from Globeville before reaching Boulder, or Eldorado Springs, went over the interstate highway of the Colorado & Southr ern Railway Company; the two roads maintaining joint trackage rights over that part of the road, which is a part of the through highway of interstate commerce over which the interstate trains of the Colorado & Southern Railway Company are operated. / At times the cars and trains of the plaintiff in error, while being operated over portions of said line of railway have passing points with interstate passenger and freight trains of the Colorado & Southern Railway Company, and at such times it must protect its trains against all trains having special rights. In order to prevent accidents it is necessary that they should have telegraphic train orders, and oc- ■ casionally train orders relating to passing or meeting points of delaye-d passenger' ttains on the Colorado & Southern Railway Company. These orders were transmitted through this operator, Ream. Occasionally orders were in the same way issued and transmitted through this operator relating to meeting and passing places of extra Colorado & Southern interstate trains and defendant’s trains. ■ That part of the plaintiff in error’s road from Marshall to Eldorado Springs is clearly an interstate highway, and so are the tracks from Vesuvius Mine to Boulder Junction and from Rouisville Junction to Boulder, which were used by the Colorado road for its interstate trains and by the plaintiff in error for all its trains going to Boulder. The operator at Globe-ville received his orders from the chief train dispatcher of the Colorado & Southern Railway Company, and he had to direct his trains in accordance therewith. This clearly made the plaintiff in error a [689] road engaged in interstate commerce, and Mr. Ream an employe engaged in the operation of trains. Baltimore & Ohio R. R. Co. v. United States Interstate Commerce Commission, 221 U. S. 612, 31 Sup. Ct. 621, 55 L. Ed. 878; N. Y. Central R. R. v. Carr, 238 U. S. 260, 35 Sup. Ct. 780, 59 L. Ed. 1298; Seaboard Air Line v. Koennecke, 239 U. S. 353, 355, 36 Sup. Ct. 126, 60 L. Ed. 324; St Joseph & Grand Island R. R. v. United States, 232 Fed. 349, 146 C. C. A. 397. In Baltimore & Ohio R. R. Co. v. Interstate Commerce Commission, it was held: “If. then, it be assumed, as it must be, that in the furtherance of its purpose Congress can limit the hours of labor of employes engaged in interstate transportation, it follows that this power cannot be defeated either by prolonging the period of service through other requirements of the carriers or by the commingling oí duties relating to interstate and intrastate operations.” In the Carr Case it was held that a brakeman on an interstate car in a train consisting of both intra and inter state cars, who is engaged in cutting out the intrastate cars, so that the train may proceed, is, while so doing, engaged in interstate commerce. The proper transmission of train orders through this operator at Globeville, was at times essential to the safe operation of trains intra as well as inter state, on the lines used jointly by these two roads, and when the plaintiff in error required this operator 1o receive orders from the train dispatcher of the. Colorado & Southern Railway Company and transmit them to its employes in charge of its trains, which were operated on an interstate highway, it and the operator were clearly engaged in interstate transportation, and the operation of in' terstate trains. The fact that on that particular day this operator at Globeville had received no orders relating to interstate trains is wholly immaterial. This act differs in this respect from the Employers’ Inability Act. The latter is expressly limited to employes injured “while engaged in interstate business,” while the Honrs of Service Act applies to all employes actually engaged in or connected with the movement of any interstate trains, regardless of the fact whether at the time the offense was committed he was so employed. There was a joint traffic arrangement over this line and that of the Colorado & Southern Railway Company, over certain parts of an interstate highway, and all trains using that highway were under the control of one. person, the train dispatcher of’ the Colorado & Southern, admittedly an interstate railway, from whom this operator received his orders, which he was bound to transmit. The courts have been very liberal in construing who are employes of a railroad engaged in interstate transportation. Southern Railway Co. v. United States, 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72; Pedersen v. Delaware, L. & W. R. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153; Illinois Central Ry. Co. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163; Houston & Texas Ry. v. United States, 234 U. S. 342, 34 Sup. Ct. 833, 58 L. Ed. 1341. And in our opinion the defendant and its operator were clearly engaged in interstate commerce. Upon the agreed facts the judgment of the court below was right, and is accordingly affirmed.