Biggs, Maris and Staley, Circuit Judges.
The sole question raised by this appeal is whether the district court erred in finding as a matter of law that a railroad employee whose duties were to sweep and clean certain switches was actually engaged in or connected with the movement of any train within the meaning of the Hours of Service Act, 45 U.S.C. § 61 et seq.
The relevant facts may be summarily stated as follows: Plaintiff's husband, Donald Jopek, was employed by the New York Central as a welder at its Ashtabula, Ohio, yards. At 4:30 o'clock A.M. on the morning of December 10, 1962, Jopek left his home in Dunkirk, New York, en route to his job in Ashtabula. Due to bad weather, he was unable to reach his planned destination. Consequently, he checked in at the defendant's yard in Erie, Pennsylvania. After the foreman had made a routine check with Ashtabula, Jopek was assigned certain work beginning around 7:30 o'clock A.M. He spent most of the daylight hours working in the Erie yard and on track patrol. After assisting in the replacement of a defective rail, Jopek and his co-worker, Cash, returned to the Erie depot at about 5:30 o'clock P.M. The track supervisor asked them if they would like to work that evening, and they both replied affirmatively. They were told to take an hour or so off and then to report to a place along the defendant's main line known as Harbor Creek.
Jopek and Cash arrived at Harbor Creek within the allotted time and reported to the dispatcher via telephone. At Harbor Creek there were located a number of switches on defendant's main line which, due to the cold weather and deep snow, could freeze or otherwise malfunction. The two men were to sit in one of the defendant's trucks and watch for a signal light which could be flashed by the dispatcher. When the light came on, Jopek and/or Cash would cross the tracks and pick up the phone. The dispatcher would tell them that a certain switch was not functioning properly; they would clean that switch and report back via phone. On the night and early morning in question, Jopek and Cash received four calls and cleaned three switches. Cash answered the fourth call around 3:00 o'clock A.M. and returned to the truck to discover Jopek slumped over the steering wheel apparently in an unconscious state. An ambulance was summoned; Jopek, however, was pronounced dead on arrival at the hospital. Expert testimony adduced at the trial listed the cause of death as myocardial fibrosis, a degenerative heart disease, unknown to either the deceased or the defendant. Further expert testimony also established the more immediate cause of death as overexertion and overexposure.
Plaintiff predicated her right to recover under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., on two theories: failure to provide a safe place to work (general negligence) and violation of the Hours of Service Act, 45 U.S.C. § 61 et seq. (negligence per se). The district court determined as a matter of law that plaintiff's husband was an employee within the meaning of the Hours of Service Act and submitted the issue of causation to the jury along with the standard charge on failure to provide a safe place to work. The jury rendered a general verdict*fn1 for the plaintiff from which this appeal followed.
The relevant sections of the Hours of Service Act provide that:
"It shall be unlawful for any common carrier, its officers, or agents, subject to sections 61-64 of this title to require or permit any employees subject to said sections to be or remain on duty for a longer period than sixteen consecutive hours, and whenever any such employee of such common carrier shall have been continuously on duty for sixteen hours he shall be relieved and not required or permitted again to go on duty until he has had at least ten consecutive hours off duty; and no such employee who has been on duty sixteen hours in the aggregate in any twenty-four-hour period shall be required or permitted to continue or again go on duty without having had at least eight consecutive hours off duty * * *." 45 U.S.C. § 62.
"* * * The term 'employees' as used in said sections [61-64] shall be held to mean persons actually engaged in or connected with the movement of any train." 45 U.S.C. § 61.
It has been well established since the case of Atchison, T. & S.F. Ry. v. United States, 244 U.S. 336, 61 L. Ed. 1175, 37 S. Ct. 635 (1917), that the Act is remedial in nature and was passed for the protection of the public and railroad employees from the dangers inherent in long, uninterrupted periods on duty by railroad employees. The Act should be construed in the light of its purpose, Chicago & Alton R.R. v. United States, 247 U.S. 197, 200, 62 L. Ed. 1066, 38 S. Ct. 442 (1918), which has uniformly been held to mean that it should be liberally or broadly construed. United States v. Atlantic Coast Line R.R., 153 F.2d 243 (C.A. 4, 1946); United States v. Baltimore & O.R.R., 133 F.2d 831 (C.A. 4, 1943); St. Joseph & G.I. Ry. v. United States, 232 Fed. 349 (C.A. 8, 1916); San Pedro, L.A. & S.L.R.R. v. United States, 213 Fed. 326 (C.A. 8, 1914); United States v. Northern Pac. Ry., 224 F. Supp. 303 (D. Minn., 1963); United States v. Detroit, T. & I.R.R., 205 F. Supp. 860 (E.D. Mich., 1962), rev'd on other grounds, 315 F.2d 802 (C.A. 6, 1963).
For the purpose of this appeal, appellant has conceded that Jopek was on duty for more than sixteen hours. It raises no issue with regard to the consecutiveness of the hours of his employment on December 10th and 11th of 1962. Its sole contention here is that Jopek was not an employee within the meaning of the Act. It argues that Jopek was not "actually engaged in or connected with the movement of any train."
There is no question that if Jopek was actually engaged in or connected with the movement of any train during his final working hours on the days in question, then this case would fall under the Act. United States v. Great No. Ry., 206 Fed. 838 (D. Idaho, 1913), aff'd, 211 Fed. 309 (C.A. 9, 1914), cert. denied, 234 U.S. 760, 58 L. Ed. 1580, 34 S. Ct. 776; see also Baltimore & O.R.R. v. ICC, 221 U.S. 612, 619, 55 L. Ed. 878, 31 S. Ct. 621 (1911). Commingling of duties will not avoid application of the Act. San Pedro, L.A. & S.L.R.R. v. United States, 213 Fed. 326. Thus, it is clear that the duties of Jopek at the time of his death must be scrutinized to ascertain coverage or non-applicability of the Act.
The testimony of Charles D. Criscione, a track supervisor, fully described the type of work being performed by Jopek when he ...