
    UNITED STATES v. CHICAGO, M. & ST. P. RY. CO.
    District Court, W. D. Wisconsin.
    April 16, 1914.
    Master and Servant (§ 17) — Railroads—Hours of Service Daw — Unavoidable Accident.
    Where a railroad company’s violation of the Hours of Service Law (Act March 4, 1907, c. 2939, 34 Stat. 1415 [U. S. Comp. St. Supp. 1911, p. 1321]) resulted from a train being required to take impure water from a creek, due to heavy switching while the train was being run over a temporary logging road, causing the injectors, which were in good order, to fail to work properly, such delay was the result of an unavoidable accident which could not have been foreseen and prevented by the use of ordinary care, and hence the company was not liable for a penalty.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 16; Dec. Dig. •§ 17.]
    At Raw. Action by the United States against the Chicago, Milwaú-kee & St. Paul Railway Company. Judgment for the United States.
    Otis B. Kent, Special Asst. U. S. Atty., of Washington, D. C., for the United States.
    Rodger M. Trump, of Milwaukee, Wis., for defendant.
    
      
       For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   SANBORN, District Judge.

Action at law for violation of the Hours of Service Act of March 4, 1907 (34 Stat. 415). It appears from the'agreed facts that four employés of defendant were on duty July 8, 1912, 1814' hours, being an excess of 2% hours. A plea of guilty to a technical violation of the law was filed.

Defendant owns and operates a railroad between Star Lake and Buswell, Wis., 22^/2 miles; about midway between the two places a temporary logging road branches off from Boulder Junction to Ryan’s Spur, 14 miles. The train started from Star Lake and ran northwest to Buswell, then retraced 11% miles to Boulder Junction. Prom there it went out on the logging spur to Ryan’s Spur, where there was considerable heavy switching, and then back to Boulder Junction. By this time the engine was out of water. There is no water tank between Star Lake and Buswell, nor would any be needed except for the extra 28-mile run to Ryan’s Spur. There is, however, a creek on the main line between Boulder Junction and Buswell, where freight trains had been accustomed to obtain water. The engine was run from Boulder Junction to this creek, 2% miles, and water raised into the tank. A pipe was lowered into the stream, and connecting the boiler steam with the pipe near its upper end, thus creating a partial vacuum in this end, and “aspirating” the water into the tank. The weather was warm, and the water low in the stream, and the result was warm, impure water in the tank, making it difficult for the injectors to work, in order to force water into the boiler. The engine returned to Boulder Junction and took up the train for Star Lake. The injectors worked properly for about three miles, and the crew were able to get the train within four miles of Star Lake, when the engine was cut off and run to the water tank at Star Lake, the cars being necessarily left on the main track. As soon as the tank was filled up with colder water the injectors again worked properly, and the train was then brought into Star Lake. By this time the men had been on duty 18% hours. There was no defect in the injectors; their temporary failure being caused by the high temperature and impurity of the creek water.

Of course no railway company can be excused for not providing plenty of water on its permanent lines of road. But this 14-mil'e logging road was only a temporary affair, which might last a month or six months, and then be taken up. The company was not required to build a water tank on this extension, or at Boulder Junction on the main line, unless this was reasonably necessary under all the surrounding conditions. The creek had been found adequate, and sufficient water was actually supplied by it, but the water proved not to be suitable for the injectors, although the train was brought nearly to a junction point before it was found necessary to cut off the engine. It looks to me as if all this complication of circumstances, being the heavy switching work, the low, warm water in the stream, the injectors working up to within four miles of a water tank and then failing, may be called so unexpected as to be regarded as unavoidable. The violation was technical only. The inj ectors were in good order, but the foaming of the warm, impure water caused their temporary failure. Such failure was an unavoidable accident, which could not have been foreseen and prevented by the use of ordinary care. United States v. Kansas City Southern R. Co. (D. C.) 189 Fed. 471, Id., 202 Fed. 828, 121 C. C. A. 136.

Defendant having confessed to a technical breach of the law, judgment against it for costs only should be entered.  