The Circuit Court of Appeals for the Second Circuit, in International Railway Company v. United States, 238 Fed., 317, held that singly operated electric cars, not used in trains nor hauled, need not be equipped with automatic couplers, "for the reason," as stated by the court, "that there would be no use for such a contrivance if it existed, and that Congress can be held to have decreed no such absurdity."

The Circuit Court of Appeals for the Sixth Circuit handed down three very important decisions:

In Erie R. R. v. United States, 240 Fed., 28, the court held that the proviso of the act did not prohibit the movement for repair of defective cars in revenue trains unless hauled by means of chains.

In Pennsylvania Co. v. United States, 241 Fed., 824, the court held that the movement of a "hospital" train of 33 cars, the majority of which required heavy repairs and all of which were defective as to safety appliances, a distance of 100 miles, from a yard which was a repair point, over an interstate highway, through other repair points, with the menace not only to the employees upon this train but also to other traffic upon the road, was not justified by the conjecturally possible, but apparently improbable, saving of a few days' time in effecting the repairs.

In Baltimore & Ohio Southwestern R. R. Co. v. United States, 242 Fed., 420, the court held that a carrier's right to haul cars for the purpose of repair is limited to those cars which become defective upon its own line, and that it has no right to receive defective cars in interchange from a connecting carrier even for the purpose of thereafter repairing them.

The Circuit Court of Appeals for the Ninth Circuit, in Great Northern Railway v. United States, 244 Fed., 406, reaffirmed its former decision, 229 Fed., 927, in which it was held to be unlawful to require brakemen to use the common hand brake to assist the engineer in controlling the speed of a train.

In United States v. Denver & Rio Grande, decided September 6, 1916, the District Court for the District of Utah held that the convenience of the carrier, or the question of economy, in making repairs is not the test in determining what is the "nearest available point" where repairs can be made; also that a so-called "hospital" train, containing defective cars, some loaded with revenue freight, was a revenue train, notwithstanding the fact that while the ultimate intent of the carrier was to move such cars for repair, it did not limit such movement to the "nearest available point where repairs could have been made. This case has been carried on writ of error by the carrier to the Circuit Court of Appeals for the Eighth Circuit.

The District Court for the District of Massachusetts, in United. States v. Boston & Maine R. R. Company, decided in September, 1916, not reported, ruled that the movement of a car with defective coupler, coupled to the end of a commercial train by its good coupler for the purpose of moving such defective car to a place of repair, was lawful.

The District Court for the Eastern District of Michigan, in United States v. Grand Rapids & Indiana Ry Co., decided October 5, 1916, not yet reported, held that the safety appliance acts impose upon carriers the duty of controlling the speed of their trains with the power brakes, and that such control by means of the hand brakes is unlawful. This case is now pending in the Circuit Court of Appeals for the Sixth Circuit.

In United States v. Louisville & Jeffersonville Bridge Co., 236 Fed., 1001, the District Court for the Western District of Kentucky held that under the safety appliance acts the movement of a string of cars for some distance through the yards on tracks used by regular trains in interstate commerce, the string being transferred from the yards of one company to those of another, was not a mere switching operation, and the string of cars must be considered a train, so that the operation without using the power brakes on 85 per cent of the cars with the engine was in violation of the acts.

HOURS OF SERVICE ACT.

During the past fiscal year there were transmitted to the several United States district attorneys for prosecution 113 cases, involving 1,197 counts, of violations of the hours of service act.

Cases involving 811 counts were confessed and 444 counts were tried, of which 125 were decided in favor of the Government and 198 in favor of the carriers. The remaining 121 counts are still pending decision, 48 of which are in the district courts and 73 in the circuit courts of appeal.

Cases involving 878 counts were dismissed, 841 of which were based upon the carriers' failure to report all instances of excess service, as required by an order of the Commission. This action was taken after the Supreme Court of the United States rendered its decision in the Northern Pacific case, hereinafter referred to.

Two cases were decided by the Supreme Court of the United States, one against and one in favor of the Government.

In the circuit courts of appeal 8 cases, involving 44 counts, were decided in favor of the Government, and 3 cases, involving 14 counts, were decided in favor of the carriers. Cases involving 185 counts are still pending in the circuit courts of appeal.

JUDICIAL INTERPRETATION OF THE HOURS OF SERVICE ACT.

The Supreme Court of the United States, in United States v. Northern Pacific Railway, 242 U. S., 190, involving the failure of the carrier to include in its monthly report to the Commission several instances wherein its trainmen had been on duty longer than 16 consecutive hours, held that the penalty of $100 per day could not be exacted where such omission was caused by an honest mistake in a genuinely doubtful case.

In Atchison, Topeka & Santa Fe Railway v. United States, 244 U. S., 336, the Supreme Court affirmed the judgment of the Circuit Court of Appeals for the Ninth Circuit, 220 Fed., 748. In this case it was the contention of the carrier that the delay to a train by reason of an unavoidable accident automatically suspended the operation of the hours of service act to the crew of such train, thus giving the carrier the right to continue such delayed crew on duty until they reached the terminal or end of their customary run. The Supreme Court, however, held that an unavoidable delay to a train did not relieve the carrier from the obligation of thereafter providing relief when that train reached a point where such relief was obtainable.

The Circuit Court of Appeals for the Second Circuit, in Brooklyn Eastern District Terminal v. United States, 239 Fed., 287, held that the defendant was not a common carrier and therefore not subject to the provisions of the hours of service act. The Supreme Court, on April 9, 1917, on petition of the Government granted a writ of certiorari in the case. 243 U. S., 647.

The Circuit Court of Appeals for the Sixth Circuit, in Baltimore & Ohio Railroad v. United States, 243 Fed., 153, held that the carrier that kept one of its telegraph operators on duty for a longer period than that fixed by the statute and sought to justify the operator's excess service by the occurrence of a casualty or unavoidable accident, violated the statute, notwithstanding the occurrence of such casualty or unavoidable accident, by failing to relieve the operator in question when it was possible to do so. The court also held that the casualty proviso of section 3 of the act applies to telegraph operators as well as to other employees.

The same court in Baltimore & Ohio Railroad v. U. S., 242 Fed., 1, upheld the Government's contention with respect to the necessity of providing relief for a train crew delayed by a casualty or unavoidable accident. The court held that up to the time it became apparent or should have become apparent that there was danger of a crew not completing their run within 16 hours the carrier was only required to exercise reasonable care to avoid delays, but thereafter it was required to exercise a very high degree of care or extreme diligence to get the train through to the end of the run within the time limit, and that as

soon as it became fairly probable that excess service would otherwise be necessary the railroad must use that same high diligence to prevent excess service either by laying up the train or by sending relief or in any other practicable way. The court also ruled that the carrier was not entitled to an instruction that it had the right to add the time of whatever delay was attributable to an unavoidable accident to the 16 hours' permissible service. It was also decided in this case that the carrier was not entitled to an instruction that when the unavoidable accident happened, causing delay beyond the 16 hours, the defendant was entitled to keep the crew in service until the end of the run or the nearest regular relay point.

Five important decisions were handed down by the Circuit Court of Appeals for the Eighth Circuit:

In Denver & Interurban Railway v. U. S., 236 Fed., 685, that court held that the hours of service act was applicable to a telegraph operator whose general employment included the receipt and transmission of orders affecting the movement of interstate trains, and that the carrier was liable for excess service of such telegrapher, although on the day of the alleged offense neither the employee nor the carrier did any work relating to interstate trains.

In Atchison, Topeka & Santa Fe Railroad v. United States, 236 Fed., 906, the carrier maintained telegraph offices, both in charge of the same station agent, at Guthrie and South Guthrie, Okla., situated about four-tenths of a mile apart. Both are within the railroad district designated by the carrier as the Guthrie yard. At Guthrie the telegraph operator worked from 7 p. m. to 7 a. m. At the latter hour he stopped his work and went to South Guthrie, where he personally delivered the train register, train orders, and block sheet, and all undelivered messages to another operator, who went on duty there at that hour. The latter receipted for the papers delivered him, and thereafter, until 7 p. m., performed the same telegraphic duties as were performed at Guthrie during the night. At 7 p. m. he went to Guthrie and returned the train register, etc., and took a receipt for the same. The court held, affirming the lower court, that Guthrie and South Guthrie, taken together, were one office, place, and station "continuously operated' night and day," and that the operators therein were limited to 9 hours' service in each 24-hour period.

In Illinois Central Railroad v. United States, 241 Fed., 667, the judgment of the lower court, 234 Fed., 433, was affirmed. This case involved a two-office question similar to that in the Atchison, Topeka & Santa Fe case just referred to. The Supreme Court denied the carrier's petition for writ of certiorari, 244 U. S., 658.

In Minneapolis, St. Paul & Sault Ste. Marie v. U. S., 240 Fed., 315, the court held that lack of knowledge of superior officers of the

carrier was not a defense in a case where the excess service of an engineer and fireman was due to a violation by them of general orders, but that knowledge of the employees themselves was imputed to the carrier by the terms of the statute. The court held that the word "permit" in this statute is to be interpreted as synonymous with "suffer" in the sense that one who suffers the doing of a thing which he might have prevented permits it.

In Atchison, Topeka & Santa Fe v. United States, decided April 9, 1917, 243 Fed., 114, the court held that no emergency existed where an operator was kept on duty for more than nine hours to handle United States mail for a train that was late, it appearing that the delay of four hours to the train was not due to an emergency, also that a carrier must use diligence to provide and keep in repair couplers that will stand the stress of the lateral and vertical curvature of the track.

In Missouri Pacific Ry. Co. v. United States, decided June 5, 1917, 244 Fed., 381, affirming 235 Fed., 944, it was held that "any 24-hour period," as those words are used in section 2 of the act, mean any 24hour period beginning only at the time an operator starts his day's work. Upon this question one of the judges dissented. All the judges concurred in the holding that the requirement of service of a railroad telegrapher in excess of the statutory period was not justified as an emergency within the meaning of the hours of service act, where such operator exceeded the prescribed hours (a) by reason of the fact that the dispatcher inadvertently and through oversight failed to give orders to a train to pick up certain cars of live stock; (b) by a dispatcher being misinformed as to the time of the arrival of a trainload of silk; (c) or because a passenger train was delayed owing to broken packing rings in one of the cylinders of the engine necessitating the sending of a relief engine to handle the train.

The Circuit Court of Appeals for the Ninth Circuit, in Oregon Short Line Railroad v. United States, 234 Fed., 584, in which the question of "knowledge" was considered, held that the hours of service act imposes upon the carrier an absolute duty to see that no employee exceeds the statutory period of service.

Four district courts have rendered decisions within the past year upon a most important question, i. e., the right of a carrier to release. train and engine crews during certain foreseen or anticipated periods of inactivity with the view of deducting such periods from the employees' "on duty" periods.

In United States v. Oregon Short Line Railroad, in the District Court for the District of Utah, decided in September, 1916, it was held that releases from active duty for periods of 53 and 60 minutes, respectively, which, except for the hours of service act, would not have been given by the carrier or accepted by the em