The opinion of the court was delivered by: TIMBERS
In this civil action brought by the United States against The New York Central Railroad Company to recover penalties totalling $3,000, pursuant to the Hours of Service Act, 45 U.S.C. §§ 61-64 (1964),
arising out of work performed by six employees of defendant - concededly members of the crew of a wrecking train - during a period exceeding 16 consecutive hours on December 6 and 7, 1965, the question presented is whether defendant is exempt from the provisions of the Act by virtue of the last proviso clause of 45 U.S.C. § 63 (1964) which reads, " Provided further, that the provisions of said sections shall not apply to the crews of wrecking or relief trains."
The Court holds that the employees here involved, although on duty for more than 16 consecutive hours, were engaged as members of the crew of a wrecking train under circumstances which Congress intended to exempt defendant from the provisions of the Act. Defendant accordingly is entitled to judgment dismissing the complaint, with costs.
After trial to the Court without a jury, the Court makes the following findings of fact and conclusions of law pursuant to Rule 52, Fed. R. Civ. P.
(1) Defendant, The New York Central Railroad Company (hereinafter "the railroad"), at all times here involved, was a common carrier engaged in interstate commerce by railroad in the State of New York and within the jurisdiction of this Court.
(2) The instant action to recover penalties for alleged violations by the railroad of the Hours of Service Act (hereinafter "the Act") was timely brought by the United States Attorney for this District on November 18, 1966, within one year after the alleged violations are claimed to have occurred on December 6 and 7, 1965, between DeWitt and St. Johnsville, New York, within the jurisdiction of this Court.
(3) At all times here involved, the following employees of the railroad constituted the crew (hereinafter "the DeWitt crew") of wrecking train No. Extra 8331, drawn by diesel locomotive No. 8331 and engaged in or connected with the movement of interstate commerce:
(4) By the instant action, the United States (hereinafter "the government") seeks recovery of penalties from the railroad totalling $3,000 ($500 for each of the six members of the DeWitt crew) on the ground that the railroad required or permitted that crew to remain on duty for a period longer than 16 consecutive hours, i.e. from 11:45 P.M. on December 6, 1965 to 7:10 P.M. on December 7, 1965.
(5) By its answer, the railroad denies the material allegations of the complaint, except it admits that at all times here involved it was engaged as a common carrier in interstate commerce by railroad in the State of New York; and it alleges as an affirmative defense that the employees named in the complaint were members of the crew of a wrecking train and as such were specifically exempt from the Act.
(6) At some time before midnight on the night of December 6, 1965, a wreck occurred on the railroad's main line at CP-18, approximately two miles east of St. Johnsville, New York; the wreck involved the 55 car eastbound freight and coal hopper train BA-2, 14 cars of which were derailed and tipped over due to a burned out journal; the wreck blocked all traffic on the eastbound and westbound main tracks (tracks 1 and 2).
(7) In order to clear the tracks of the wreck, the railroad ordered one wrecking train to proceed from Selkirk (near Albany) to the east end of the wreck and a second wrecking train (the crew of which is the subject of the instant action) to proceed from DeWitt (near Syracuse) to the west end of the wreck. The distance between DeWitt and Selkirk is approximately ...