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United States v. New York C. R. Co.

United States District Court for the District of Massachusetts

January 15, 1946

Civ. A. No. 3341


 [*499]  The United States sues the defendant railroad under the Hours of Service Act (hereinafter referred to as the 'Hours Act'), 45 U.S.C.A. §§ 61-64 in two counts. The complaint alleges that the defendant, in December 1944, in violation of the Act permitted a telegrapher (Section 62) employed by it to be and remain on duty for a period of twelve hours during a twenty-four-hour period.

The defendant in its answer admits it did require two of its employees to serve for the periods and in the capacity alleged and alleges further it did so as the result of an emergency within the meaning of Section 2 of the Hours Act, 45 U.S.C.A. § 62.

The pertinent facts have been stipulated and are as follows:

The defendant employees three operators at its train-order office at Worcester, Massachusetts, each being on duty eight hours out of twenty-four, since the office is continuously operated night and day. Two of these operators are men, Murphy and Reim, and the third is a woman,  [**2]  Mrs. B. M. Gilmour. Mrs. Gilmour is on duty from 7:59 a.m. until 3:59 p.m. The remaining sixteen hours are divided between Reim and Murphy.

Section 56 of Chapter 149 of the Massachusetts General Laws (Ter.Ed.), as amended by St. 1941, cc. 574, 610, reads, in part, as follows: 'No child and no woman  [*500]  shall be employed or permitted to work in, or in connection with, any factory or workshop, or any manufacturing, mercantile or mechanical establishment, hospital, telegraph office or telephone exchange, * * * more than nine hours in any one day, * * * ; and in no case shall the hours of labor exceed forty-eight in a week, * * * .'

In order to comply with the state statute referred to in the preceding paragraph, it is the practice to relieve Mrs. Gilmour by an extra operator when she completes forty-eight hours of service as operator within a given week. On December 4, 1944, when Mrs. Gilmour had completed the usual forty-eight hours of service, the extra operator who usually relieved her was not available because he had been directed by his superior officers to fill an assignment at another office, due to the illness of the operator in that other office. Mrs. Gilmour having [**3]  been the Massachusetts statute, and the usual extra operator not being available, Operator Murphy, who came on duty at 11:59 p.m., December 3, 1944, was instructed by the proper officials to remain on duty until 11:59 a.m., December 4, 1944. Operator Reim was instructed by proper authority to go on duty at 11:59 a.m., December 4, 1944 and continue on duty until 11:59 p.m., on the same date. Each of the two operators named was required and permitted to be and remain on duty for twelve consecutive hours during the twenty-four-hour period beginning at 11:59 p.m., December 3, 1944 and ending at 11:59 .m., on December 4, 1944, during which time both operators handled train orders pertaining to or affecting the movement of trains.

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64 F. Supp. 499 *; 1946 U.S. Dist. LEXIS 2934 **



emergency, Hours Act, employees, railroad, hours of service, circumstances, telegraphers, confronted, meaning of a section, twenty-four-hour, illness