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It was the intention of the proviso in § 3, not to relieve the carrier from a diligent effort to avoid exceeding the limits of service which the act specifies, but only to afford relief in cases where service beyond those limits is necessarily entailed by the causes mentioned in the proviso.

If, as the result of delay due to unavoidable accident, a train crew will not be able to take the train to the terminal of their normal run without serving beyond the time limit prescribed by the act, it becomes the carrier's duty to prevent such excessive service by substituting a fresh crew whenever, in the exercise of all reasonable diligence, it is able to do so.

220 Fed. Rep. 748, affirmed.

THE case is stated in the opinion.

Mr. Paul Burks, with whom Mr. Robert Dunlap, Mr. E. W. Camp and Mr. Gardiner Lathrop were on the brief, for plaintiff in error.

Mr. Assistant Attorney General Underwood, with whom Mr. Alex Koplin was on the brief, for the United States.

MR. JUSTICE DAY delivered the opinion of the court.

The United States brought an action in the District Court of the United States for the Southern District of California, Southern Division, against the Atchison, Topeka & Santa Fe Railway Company, to recover the sum of $1500 for three alleged violations of the Hours of Service Act of March 4, 1907, 34 Stat. 1415, 1416, the relevant parts of which are as follows:

"Sec. 2. That it shall be unlawful for any common carrier, its officers or agents, subject to this Act to require or permit any employee subject to this Act to be or remain on duty for a longer period than sixteen consecutive hours, and whenever any such employee of such common carrier shall have been continuously on duty for sixteen hours he shall be relieved and not required or permitted again to go on duty until he has had at least ten consecutive

Opinion of the Court.

244 U.S.

hours off duty; and no such employee who has been on duty sixteen hours in the aggregate in any twenty-fourhour period shall be required or permitted to continue or again go on duty without having had at least eight consecutive hours off duty:

"Sec. 3. 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.

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From the stipulated facts the following appears: That the Atchison, Topeka and Santa Fe Railway Company is a corporation duly organized and existing under the laws of Kansas, and was at the times mentioned in the complaint a common carrier engaged in interstate commerce by rail. That at the times mentioned in the petition this railway company operated a certain interstate passenger train from Los Angeles, California, to Phoenix, Arizona, known as train No. 18, and a similar train from Phoenix to Los Angeles known as train No. 17. That this latter train customarily, and on the dates in question, moved from Phoenix to Parker, Arizona, in charge of train and engine crews, which crews were changed at Parker, where there was attached to the train an engine in charge of a crew which ran from Parker to Barstow, California, a distance of 183.5 miles. That at Parker train No. 17 was taken in charge of and handled from that point to Los Angeles, a distance of 335.3 miles, by a passenger train crew, consisting of a conductor and two brakemen, who were the employees of the railroad company mentioned in the complaint.

That the terminals for the passenger train crews engaged in the operation of trains Nos. 17 and 18 are Los Angeles and Parker. That the employees described in

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the complaint resided and had their homes in Los Angeles, from which point they customarily left for Parker in charge of train No. 18, which arrived at Parker at or about 1:15 o'clock A. M., whereupon they were relieved until 10:40 o'clock P. M., on the same day. That during the interval they were permitted to enjoy the accommodations for rest at Parker, which was their "away-from-hometerminal." That at 10:40 o'clock P. M. they reported for the return trip to Los Angeles on train No. 17, and customarily reached Los Angeles at or about 10:15 o'clock A. M. on the next day, from which time until 10:30 o'clock P. M. on the following day they were not on duty, and during that time they were permitted to repair to and remain at their respective homes in Los Angeles, which was their "home-terminal."

That on October 2nd and 3rd, 1912, passenger train No. 17 was operated between Parker and Los Angeles by the employees named in the complaint, and that they were compelled to be and remain on duty in connection with the movement of that train from 10:40 o'clock P. M. on October 2nd, until 8:25 o'clock P. M. on October 3rd, under the circumstances hereinafter set forth.

That the employees named reported for duty at Parker, at 10:40 o'clock P. M. on October 2nd, and at 11:10 o'clock P. M. departed from Parker in charge of train No. 17, which arrived at Barstow, California, at 7:10 o'clock A. M. on October 3rd, having been delayed for a period of two hours and thirty minutes on account of washouts, the cause of this delay not being known to the defendant, or to any of its officers or agents in charge of the employees at the time they left Parker, and incapable of being foreseen. That train No. 17 was scheduled to leave Barstow at 4:45 o'clock A. M. on October 3rd, but by reason of the delay in reaching Barstow it actually left that point at 7:45 o'clock A. M., with ample time then remaining to reach Los Angeles within less than sixteen hours after

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the conductor and brakemen entered upon their service, but at 8:30 o'clock and while the train was being operated between Barstow and San Bernardino, California, an axle broke under the tank of the engine, whereby the movement of the train was necessarily and unavoidably delayed for a period of six hours and ten minutes, with the result that instead of reaching San Bernardino at 7:35 o'clock A. M., according to its usual schedule, or at 10:35 o'clock A. M., as it would have done but for the delays in reaching and leaving Barstow, it actually arrived at San Bernardino at 5:30 o'clock P. M., and that instead of reaching Los Angeles at 10:15 o'clock A. M., in accordance with its usual schedule, or at 1:16 o'clock P. M., as it would have done but for the delays in reaching and leaving Barstow had there been no further delays, it actually reached Los Angeles at 8:25 o'clock P. M. on October 3rd, the employees having been on duty for twenty-one hours and forty-five minutes. That the breaking of the axle whereby the train was delayed for six hours and ten minutes was a casualty and an unavoidable accident, and the delay to the train caused thereby was the result of causes not known to defendant, or to any of its officers or agents in charge at the time the employees left Parker, and which could not have been foreseen.

That train No. 17, after having been delayed in reaching and leaving Barstow, and after having been delayed six hours and ten minutes by the broken axle, proceeded to Los Angeles in charge of the employees who were in charge when it left Parker, and that in going to Los Angeles the train and employees passed through the station of San Bernardino, California, which is a point known and designated as a division terminal, and which was a place appointed and customarily used as a terminal from and to which crews of certain other passenger and freight trains of the defendant brought their trains, but which was not a terminal for train crews in charge of trains Nos. 17 and 18

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or of any other trains operating between Parker and Los Angeles. That at and previous to the time the employees in charge of train No. 17 had been continuously on duty for a period of sixteen hours, defendant had in its employ at Los Angeles and also at San Bernardino passenger train crews which were customarily assigned to other passenger trains, and crews which were subject to call which were customarily used in operating freight trains, who were qualified should necessity require to operate passenger trains between San Bernardino and Los Angeles. That the employees in charge of train No. 17 could have been relieved at San Bernardino and the train placed in charge of one of such other freight or passenger train crews at a time which would have permitted the employees in charge of train No. 17 to "deadhead" from San Bernardino to Los Angeles on that train without performing any service.

That before the delay of six hours and ten minutes which resulted from the broken axle had expired, and before the damage which had caused such delay had been repaired, and before the train left the point where the damage occurred, it was known to the defendant and its officers and agents that such employees would have been on duty in excess of sixteen hours by the time they reached San Bernardino, but that no effort was made to relieve them before they had been on duty continuously in excess of sixteen hours, either previous to or at the time of their arrival at San Bernardino, or at any time before they reached Los Angeles.

That it is commonly understood by railroad men with a knowledge of the practical operation of trains that the word "terminal" has reference to certain train or trains or certain crew or crews, and means the beginning or the end of the employee's run or the point at which in the regular course of business he would go on duty as a member of a particular crew, or at which in the regular course

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