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MEMORANDA OF DECISION ON MERITS OF CASE. Pollock, District Judge:

This action, in three counts, was brought by the Government to recover penalties provided for violations of act of Congress, March 4, 1907 (34 Stat., 1415), commonly designated as the hours-ofservice act.

The facts, as stipulated by the parties in the several counts of the petition, are briefly summarized as follows:

Count 1. The defendant permitted its locomotive fireman, Roy Scott, to go on duty on October 18, 1911, at 6 a. m. The run of this engine was from Pueblo, Colo., to the station of Horace, this State. That at 10 p. m. on the night of that day the engine, not having completed its run, and having reached the station of Keyser, this State, the fireman signed the "rest register," but was by de fendant company thereafter permitted to remain on his engine as watchman in charge until the engine was drawn by another engine to the end of the run, Horace Station, which was reached at 11:30 p. m. that night, the hours of continuous service of Scott on that day being as locomotive fireman from 6 a. m. to 10 p. m., as watchman in charge of the engine from 10 p. m. to 11:30 p. m.; total, 171⁄2 hours.

Count 2. That on the following day said Scott as locomotive fireman was required to go out on his run from Horace, this State, to Pueblo, Colo., at the hour of 8 o'clock a, m., without having had 10 hours of rest from his former day's service as required by the statute, if the time he was engaged as watchman on the previous day should be computed as hours of service within the purview of the act.

Count 3. The defendant, on October 20, 1911. permitted its locomotive fireman, O. M. Provorse. on a run from Pueblo, Colo., to Horace, this State, to remain on duty as fireman preparatory to going out on his run from 5:30 a. m. to 6:30 a. m., and to serve as fireman of the locomotive on his run from 6:30 a. m. to 9:30 p. m., and as watchman in charge of his engine while it was drawn by another engine from Sheridan Lake. Colo., to the end of the run at Horace, Kans., which station was reached at the hour of 3:50 a. m. on the morning of October 21, thus permitting and requiring its said locomotive fireman, Provorse, to be on duty preparatory to going out on his run 1 hour, to be actually engaged as locomotive fireman on his run 15 hours, and to act as watchman of his engine while being drawn to the station of destination 6 hours, or a continuous service of 22 hours, if the space of 6 hours in which he watched the engine while it was being drawn shall be computed.

From the statement made it is obvious the question presented is, Shall the time spent by the fireman as watchman in charge of his engine being drawn by another engine to the terminal station be computed in the hours of service as contemplated by the statute?.

As stated in the stipulation of the parties, the duties of the fireman so engaged as watchman in charge of his engine are to keep a certain amount of fire in the furnace, to see the water does not run too low in the boiler, and that a certain amount of steam pressure is preserved. Aside

from such duties the engine employed in drawing the train is in charge of another crew, as is the movement of the train itself.

The term "employee," as employed in and defined by the act itself. is "persons actually engaged in or connected with the movement of any train." While it is quite clear a watchman so in charge of an engine has no control over the train movement, hence is not actually engaged in such movement, it is not so clear he is in no manner connected with the movement of the train.

While the question presented is, so far as I find, of first impression, yet, considering the remedial nature and humane purpose of the act, the character of the duties imposed upon such watchman, as stipulated by the parties, and all the facts and circumstances presented by the record to which consideration should be given, I am forced to the conclusion the time so spent by a locomotive fireman in watching his engine must be computed as hours of service within the purview of the act, and for the following, among other reasons which might be given.

The humane feature of the statute being considered, it must be thought the Congress intended, at or before the expiration of the 16-hour period of service provided therein, an employee engaged in the movement of the train would, from exhaustion of body and mind, be in need of relaxation and rest. freed from all responsibility and care for the safety of himself and others. That the cab of a moving engine in which such watchman is required to ride is not such place as in the absence of any duty to be performed is conducive to that rest and relaxation required by the statute, is a matter of common experience and knowledge. However, when to this self-evident fact, as in this case, there is superadded the duties imposed on one so situate, as by the parties stipulated, the question of relaxation, rest, and sleep required by the statute must be almost if not altogether impossible.

Again, aside from the humane purpose of the act, regarded from the standpoint of the welfare of the employee himself, and looking alone to the safety of the employee and others, it is evident the nature of the duties required of such watchman, if from loss of vigilance through exhaustion or sleep, he should permit the water in the boiler to be entirely consumed, the danger from wreck of the train or other disaster by explosion, involving himself and others, is apparent.

All things considered, I am of the opinion it must be held such watchman is in a manner actually engaged in connection with the movement of the train, and to such extent as brings the time so consumed within the hours of service as contemplated by the act. If such construction of the statute is correct, and it shall impose a burden too severe on railroad companies, the remedy lies with the law-making power, not the courts.

It follows, on the agreed facts, judgment on all counts must enter for the plaintiff. However, as the defense is meritorious and the question presented thereby one of first impression, the amount of the penalty assessed on each count will be the sum of $100.

Let judgment enter for $100 and costs on each count of the petition.

It is so ordered.

Correspondence

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Articles must be written on one side of the paper only. Noms de plume may be used, but every article must be signed with full name and address of the writer as a guarantee of good faith, and to insure insertion. No anonymous letters will be published under any circumstances.

While the Editor does not assume responsibility for opinions expressed by contributors to this department, he is held responsible in both law and moral ethics for admitting that which will injure or create ill feeling. Hence all communications are subject to revision or rejection if the Editor deems it necessary.

C. H. SALMONS. Editor and Manager.

A Song for Old-timers.

We are going, one by one,
Soon old-timers will be gone
To the graveyards of the past.
For a lengthened spell to last.
Where they'll sigh or smile no more.
All our struggles shall be o'er.

Yet we love those dear old times,
Which I'm jingling in my rhymes.
But we had to mind our eye,
When the Boss was sneaking by;
Once he'd turn his haughty back,
We felt as if we owned the track;
Quick and sharp and fond to learn,
We'd hold the fort till he'd return.

Oh, how I loved to polish brass,
I at it labored like an ass.
Until I'd get a sickly shine.

And then she'd run along the line,
And everyone who'd pass her by
Would look with an approving eye
Upon the dazzling bands and bell,
While I was wishing her in-well!

And where are we? While life remains
We'll man the engines and the trains.
We'll aid the roads with fists and votes,

Yes, and may be gorge our foemen's throats.
We've lately made a compact true,

'T will benefit both me and you;

It should have been made long ago,

'T would save us many a painful blow.

The times have changed and so have we.
We'll prove to all we can agree;

And when the oriflamme of war

Bursts on our sight, if near or far.

You'll see us marching breast to breast,
We'll always be each other's guest.

We'll never more parade alone
While we have Carter and have Stone.

Thank God we live to tell the tale
Of reformation on the rail;
Upon some roads I know today
The men can boast of right of way.

The managers of years ago,

Who used to flap their wings and crow, Are now-God bless them-just as mild As mamma's angelic child.

If now too sharp we feel the goad
The boys all say. "Let's poll the road;"
But forty long-gone years ago
We'd little else than loads of woe
And frozen grub, and hills of toil,
And not a smell of waste or oil,
And bosses' kicks and nine-tail cats.
But say! they're all near dead, the brats.
SHANDY MAGUIRE.

Bro. Chas. W. George, Div. 135.

HORNELL, N. Y., Aug. 30, 1913. EDITOR JOURNAL: The subject of this letter is one of the faithful old members of the Brotherhood of Locomotive Engineers who helped to make this grand old organization what it is today.

Bro. Charles W. George was born March 12, 1838, and in 1865 commenced his railroad career as a switchman in the yards of the Erie Railroad at Hornell, N. Y., working there for about 18 months, when he was given a position as fireman, and in 1869 was promoted to engineer. He was assigned to a regular switching engine in Hornell yard and was also used for extra work on the Buffalo and Allegheny divisions.

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In August, 1877, Brother George "exchanged rights" with engineer Joshua Martin of Jersey City, George going to Jersey City on the Eastern division and Martin to Hornell on the Western division.

Brother George was initiated into Div. 47, B. of L. E., at Hornell, N. Y., in 1871 and transferred to Div. 135, at Jersey City, N. J., December 6, 1877, of which Division he is still an honored member. He has been a faithful worker in the B. of L. E. during all the long years of continuous membership and is the proud possessor of a badge of honorary membership in the G. I. D. His photo, taken on his 75th birthday, March 12, 1913, shows him to be what he really is, a hale, hearty, jovial, young-old fellow, who felt that he was good for many years' service as an engineer even when retired from service by the Erie Railroad Company on March 12, 1908, because he had been so careless as to reach the age of 70 years.

Being retired, he naturally thought of social relations and scenes of his earlier life and Brother George returned to Hornell, where he started railroading, to watch the cars go by.

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Bro. W. H. Shull, Div. 459.

HARRISBURG, PA., March 24, 1913. EDITOR JOURNAL: Inclosed find a photo of Bro. Wm. H. Shull, member of Div. 459, and his two sons, Samuel P. to his right, and Ross C. to his left.

Brother Shull has been employed by the P. R. R. for over 42 years, and been in the passenger service well onto a score of years.

The older son, Samuel P., is a wellknown passenger conductor on the P. R. R., running from Harrisburg to Altoona, the same as his father, and has often conducted his father's train.

Ross C. is a machinist, also employed by the P. R. R. at Harrisburg.

Brother Shull is a wide-awake B. of L. E. man, and never fails to tell of its merits to the young engineer and urge him to join with us and participate in the benefits of our grand old Brotherhood and also help to further the splendid cause of our noble Order.

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Brother Shull was for many years a member of Div. 74, but has transferred lately to Div. 459, where he works with the same energy as in his younger days. He is always found in his place in the Division unless detained by unavoidable circumstances.

No doubt Brother Shull's familiar face will be readily recognized by many of the boys who were pillars in our Order many years ago.

While he is very near the retiring age, yet he is young in spirit and ever ambitious. May he long be spared to give us counsel and may we profit thereby. Fraternally,

A MEMBER OF DIV. 459.

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The Signal and the Answer.

BY C. A. CRESSY.

As I sat in a village home today.

Reading some poems to friends whom I knew,
A train up the track was making its way."
And mine hostess saw it. The whistle blew,
And she flew to the door-there to wave her hand-

A signal to him who was in command

Of the engine that pulled its heavy load
Around the long curve of the iron road.

As the train was passing the village through,
She waved to her husband-the engineer-
A hearty salute-one of loving cheer-
Who caught the signal, and the whistle blew
Responsive answer, that to her should tell
That he was still safe, and that all was well.
'Twas a beautiful sight! It me impressed,
That signal from her to her loved and best,
The answer he made to her waving hand.
Which messages each could well understand.

It comes to me now, with this lesson sweet,
As I musing sat in my cot today,
That we may with loving messages greet
The friends who may pass us along life's way
A kindly word or a wave of the hand

Is something the poorest can understand.

It cheers up the heart 'neath the burden's load

Of care and toil, and-too often-the pain

We have to endure 'mid the weary strain

Of cares that beset us along our way.
Friends daily pass; some are passing away!
A loving word, or a wave of the hand,
As they pass us-bound for the other land-
May bring us answer, a signal to tell
To our listening hearts that "all is well!"
Walden Cot, March 20, Newport, Minn.

Montreal Union Meeting.

RENSSELAER, N. Y., Aug. 30, 1913. EDITOR JOURNAL: I am directed by the members of Rensselaer Div. 752 and Albany Div. 46, B. of L. E., and G. I. A.

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Div. 358, to send you the inclosed pictures taken by Sister Meehan on the trip representing those organizations to the union meeting of the B. of L. E. and G. I. A. held in Montreal, Canada, August 4 to 8, 1913.

The publication of the pictures in the JOURNAL would be very highly appreciated by the organizations in whose behalf I am writing.

We would also like to express our sincere thanks for the many courtesies extended to us while in Canada by the executive and subordinate committee of the B. of L. E. and G. I. A. who were assigned to look after our comfort.

We feel that the union meeting not only promoted our interests as representatives of important organized railroad bodies, but afforded us the highest enjoyment in becoming acquainted with

our Sisters and Brothers in the Dominion and the beautiful country where they are employed.

Thanking you for all past favors, I am, Yours fraternally,

H. C. BOUTON, S.-T. Div. 752.

An Auxiliary to Div. 823.

EDITOR JOURNAL: On July 18, Mrs. J. R. Crittenden, Grand Organizer of the G. I. A., organized Division 379, at New Smyrna, Fla., Mrs. W. L. Riley, President, and Mrs. T. H. Moore, Secretary.

After the organization, the evening was taken up by a social gathering at the hall, being well attended by members of the B. of L. E. and G. I. A. and friends. Music was furnished by Bro. F. N. Holley, Miss Ruth Holley and Miss Courtney. Sister Crittenden gave us a very able and interesting talk as to the work being

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CHARTER MEMBERS OF DIVISION 379. G. I. A.-Courtesy Member Div. 823, G. I. A.

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