TRIEBER, Dstirict Judge
(after stating the facts as above), f 1 ] The constitutionality of this act has been conclusively settled by the Supreme Court in Baltimore & Ohio R. R. Co. v. Interstate Commerce Commission, 221 U. S. 612, 31 Sup. Ct. 621, 55 L. Ed. 878. Therefore, the only questions of law left for determination are the construction of the provisions contained in the proviso of section 3 of the act, so far as the evidence applies to them. That proviso reads:
“Provided that the provisions of this act shall not apply in any case of casualty or unavoidable accident or the act of God; nor where the delay was the result of a cause not known to the carrier or its officers or agents in charge of such employ'd at' the time said employe left a terminal, and which could not have been foreseen; provided, further, that the provisions of this act shall not apply to the crews of wrecking or relief trains.”
As there was no evidence whatever tending to show that the delay in any of the counts occurred because the employes or any of them were acting as members of the crew of a wrecking or relief train, the plea in the fourth paragraph of the answer may be disregarded, leaving for determination the defenses set up in the third paragraph only.
[2] The act being remedial, for the purpose of preventing accidents to trains and consequent injuries to passengers and employes, it is the duty of the courts to construe it liberally in order to accomplish the purpose of its enactment. Johnson v. Southern Pacific R. R. Co., 196 U. S. 1, 25 Sup. Ct. 158, 49 L. Ed. 363.
Experience has shown that many serious accidents to trains causing great loss of life or permanent disabilities to passengers, as well .as employes, are often due solely to the fact that members of the train crew had become exhausted by reason of being required or permitted to remain on duty for too long a period, and therefore unable to give that care and attention necessary for the safety of the train. To prevent accidents from such causes the Congress, in its wisdom, enacted this statute prohibiting railroads not only from requiring any employe subject to the act to remain on duty for a longer period than 16 consecutive hours, but also “permitting” it.
[3] The defenses set up in defendants third paragraph are in a proviso. The office of a proviso ordinarily is to restrain or modify -.the enacting clause of a statute. United States v. Dickson, 15 Pet. [476]*476141, 165, 10 L. Ed. 689; Dollar Savings Bank v. United States, 19 Wall. 227, 22 L. Ed. 80; Leavenworth, etc., R. R. Co. v. United States, 92 U. S. 733, 758, 23 L. Ed. 634; Ryan v. Carter, 93 U. S. 78, 23 L. Ed. 807; Schlemmer v. Buffalo, etc., R. R. Co., 205 U. S. 1, 10, 27 Sup. Ct. 407, 51 L. Ed. 681; Boston Safety Deposit Co. v. Hudson, 68 Fed. 758, 15 C. C. A. 651; Gould v. New York Life Ins. Co. (D. C.) 132 Fed. 927; McRae v. Holcomb, 46 Ark. 306.
As to how a proviso should be construed Mr. Justice Story, in United States v. Dickson, said:
“The general rule of law which has ordinarily prevailed and become consecrated, almost, as a maxim in the interpretation of statutes, is that where the enacting clause is general in its language and objects, and a proviso is after-wards introduced, that proviso is construed strictly, and takes no ease out of the enacting clause which does not fall fairly within its meaning. In short a proviso carves special exceptions only out of the enacting clause, and those who set up any such exception must establish it as being -within the words as well as within the reason thereof.”
[4] From these authorities it follows that the defendant, to sustain its plea, must bring itself strictly within the letter as well as within the reason of the proviso in order to escape the penalty provided by that act.
[5] None of the evidence on behalf of the defendant would justify a finding that the delays were caused by “an act of God.” While it is not advisable to give an exact definition of that phrase which will cover every phase, it has been generally defined as something which occurs exclusively by the violence of nature; at least an act of nature which implies an entire exclusion of all human agencies. In Gleeson v. Virginia Midland R. R. Co., 140 U. S. 435, 439, 1 Sup. Ct. 859, 35 L. Ed. 458, an accident was caused by' a landslide caused by a heavy rain, and this, it was claimed, was an act of God relieving the defendant from .liability. This contention was overruled by the court, Mr. Justice Lamar delivering the opinion of the court, saying:
“There was no evidence that the rain was of extraordinary character or that any extraordinary results followed it. It was a common, natural event; such as not only might have been foreseen as probable, but also must have been foreknown as certain to come. Against such an event it was the duty of the company to have guarded. Extraordinary floods, storms of unusual violence, sudden ’tempests, severe frosts, great drouths, lightnings, earthquakes, sudden deaths, and illness have been -held to be ‘acts of God’; but we know of no instance in which a rain of not unusual violence, and the probable results thereof in softening the superficial earth, have been so considered.”
In The Majestic, 166 U. S. 375, 386, 17 Sup. Ct. 597, 41 L. Ed. 1039, it was held that the “act of God” which would exempt one from liability is an act in which no man has any agency whatever.
In Bullock v. White Star Steamship Co., 30 Wash. 448, 70 Pac. 1106, it was held that “an act of God to relieve from the performance of a contract must be such as a person of reasonable prudence and foresight could not have guarded against.”
For additional authorities on this subject see 1 Am. & Eng. Ency. Law (2d Ed.) 584, Harrison v. Hughes, 128 Fed. 860, 60 C. C. A. 442, and 1 Words & Phrases, pages 118 to 126.
[477]*477[6] Does the evidence establish the fact that there was any casualty or unavoidable accident within the meaning of the proviso? Casualty has been defined as an act which proceeds from an unknown cause or is an unusual effect of a known cause. Chicago, etc., R. R. Co. v. Pullman Southern Car Co., 139 U. S. 79, 86, 11 Sup. Ct. 490, 35 L. Ed. 97. As there is no evidence to warrant a finding that any of the delays were caused by “casualty” within the meaning above described, that question need not be considered further.
[7]
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TRIEBER, Dstirict Judge
(after stating the facts as above), f 1 ] The constitutionality of this act has been conclusively settled by the Supreme Court in Baltimore & Ohio R. R. Co. v. Interstate Commerce Commission, 221 U. S. 612, 31 Sup. Ct. 621, 55 L. Ed. 878. Therefore, the only questions of law left for determination are the construction of the provisions contained in the proviso of section 3 of the act, so far as the evidence applies to them. That proviso reads:
“Provided that the provisions of this act shall not apply in any case of casualty or unavoidable accident or the act of God; nor where the delay was the result of a cause not known to the carrier or its officers or agents in charge of such employ'd at' the time said employe left a terminal, and which could not have been foreseen; provided, further, that the provisions of this act shall not apply to the crews of wrecking or relief trains.”
As there was no evidence whatever tending to show that the delay in any of the counts occurred because the employes or any of them were acting as members of the crew of a wrecking or relief train, the plea in the fourth paragraph of the answer may be disregarded, leaving for determination the defenses set up in the third paragraph only.
[2] The act being remedial, for the purpose of preventing accidents to trains and consequent injuries to passengers and employes, it is the duty of the courts to construe it liberally in order to accomplish the purpose of its enactment. Johnson v. Southern Pacific R. R. Co., 196 U. S. 1, 25 Sup. Ct. 158, 49 L. Ed. 363.
Experience has shown that many serious accidents to trains causing great loss of life or permanent disabilities to passengers, as well .as employes, are often due solely to the fact that members of the train crew had become exhausted by reason of being required or permitted to remain on duty for too long a period, and therefore unable to give that care and attention necessary for the safety of the train. To prevent accidents from such causes the Congress, in its wisdom, enacted this statute prohibiting railroads not only from requiring any employe subject to the act to remain on duty for a longer period than 16 consecutive hours, but also “permitting” it.
[3] The defenses set up in defendants third paragraph are in a proviso. The office of a proviso ordinarily is to restrain or modify -.the enacting clause of a statute. United States v. Dickson, 15 Pet. [476]*476141, 165, 10 L. Ed. 689; Dollar Savings Bank v. United States, 19 Wall. 227, 22 L. Ed. 80; Leavenworth, etc., R. R. Co. v. United States, 92 U. S. 733, 758, 23 L. Ed. 634; Ryan v. Carter, 93 U. S. 78, 23 L. Ed. 807; Schlemmer v. Buffalo, etc., R. R. Co., 205 U. S. 1, 10, 27 Sup. Ct. 407, 51 L. Ed. 681; Boston Safety Deposit Co. v. Hudson, 68 Fed. 758, 15 C. C. A. 651; Gould v. New York Life Ins. Co. (D. C.) 132 Fed. 927; McRae v. Holcomb, 46 Ark. 306.
As to how a proviso should be construed Mr. Justice Story, in United States v. Dickson, said:
“The general rule of law which has ordinarily prevailed and become consecrated, almost, as a maxim in the interpretation of statutes, is that where the enacting clause is general in its language and objects, and a proviso is after-wards introduced, that proviso is construed strictly, and takes no ease out of the enacting clause which does not fall fairly within its meaning. In short a proviso carves special exceptions only out of the enacting clause, and those who set up any such exception must establish it as being -within the words as well as within the reason thereof.”
[4] From these authorities it follows that the defendant, to sustain its plea, must bring itself strictly within the letter as well as within the reason of the proviso in order to escape the penalty provided by that act.
[5] None of the evidence on behalf of the defendant would justify a finding that the delays were caused by “an act of God.” While it is not advisable to give an exact definition of that phrase which will cover every phase, it has been generally defined as something which occurs exclusively by the violence of nature; at least an act of nature which implies an entire exclusion of all human agencies. In Gleeson v. Virginia Midland R. R. Co., 140 U. S. 435, 439, 1 Sup. Ct. 859, 35 L. Ed. 458, an accident was caused by' a landslide caused by a heavy rain, and this, it was claimed, was an act of God relieving the defendant from .liability. This contention was overruled by the court, Mr. Justice Lamar delivering the opinion of the court, saying:
“There was no evidence that the rain was of extraordinary character or that any extraordinary results followed it. It was a common, natural event; such as not only might have been foreseen as probable, but also must have been foreknown as certain to come. Against such an event it was the duty of the company to have guarded. Extraordinary floods, storms of unusual violence, sudden ’tempests, severe frosts, great drouths, lightnings, earthquakes, sudden deaths, and illness have been -held to be ‘acts of God’; but we know of no instance in which a rain of not unusual violence, and the probable results thereof in softening the superficial earth, have been so considered.”
In The Majestic, 166 U. S. 375, 386, 17 Sup. Ct. 597, 41 L. Ed. 1039, it was held that the “act of God” which would exempt one from liability is an act in which no man has any agency whatever.
In Bullock v. White Star Steamship Co., 30 Wash. 448, 70 Pac. 1106, it was held that “an act of God to relieve from the performance of a contract must be such as a person of reasonable prudence and foresight could not have guarded against.”
For additional authorities on this subject see 1 Am. & Eng. Ency. Law (2d Ed.) 584, Harrison v. Hughes, 128 Fed. 860, 60 C. C. A. 442, and 1 Words & Phrases, pages 118 to 126.
[477]*477[6] Does the evidence establish the fact that there was any casualty or unavoidable accident within the meaning of the proviso? Casualty has been defined as an act which proceeds from an unknown cause or is an unusual effect of a known cause. Chicago, etc., R. R. Co. v. Pullman Southern Car Co., 139 U. S. 79, 86, 11 Sup. Ct. 490, 35 L. Ed. 97. As there is no evidence to warrant a finding that any of the delays were caused by “casualty” within the meaning above described, that question need not be considered further.
[7] While some authorities hold that “unavoidable accident” is synonymous with “act of God,” the better definition, in the opinion of the court, is that it must be an inevitable accident which could not have been foreseen and prevented by the exercise of that degree of diligence which reasonable men would exercise under like conditions and without any fault attributable to the party sought to be held responsible.
In Clyde v. Richmond & D. R. R. Co. (C. C.) 59 Fed. 394, it was held that “an unavoidable accident is one which occurs without any apparent cause, at least without fault attributable to any one.”
In Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393, it was held that,
“An unavoidable accident is synonymous with inevitable, and means any accident produced by physical causes which are inevitable, such as lightning, storms, perils of the sea, earthquakes, inundations, sudden death or illness.”
In Dixon v. United States, 1 Brock (U. S.) 177, Fed. Cas. No. 3,934, the court held “the words ‘unavoidable accident’ must be construed as any accident which renders a breach of the condition inevitable.”
This question has been frequently before the courts in the construction of the 28-hour law relating to the transportation of live stock. In Newport News & Mississippi Valley Co. v. United States, 61 Fed. 488, 9 C. C. A. 579, Mr. Justice Lurton, then Circuit Judge, delivering the opinion of the court in an action arising under the act of March 300, 1873, c. 252, 17 Stat. 584, digested as section 4386 R. S. (U. S. Comp. St. 1901, p. 2995) said:
“An effect attributable to the negligence of the appellant is not an unavoidable cause. The negligence of the carrier was the cause; the unlawful confinement and unreasonable detention but an effect of that negligence.”
The exception in that act was “unless prevented from so unloading by storm or other accidental cause.” The trial judge in that case nad charged the jury in substance: ,
“That if they found that the live stock had been confined in the cars of the defendant company for a longer period than 28 consecutive hours without unloading for rest, food, and water it would be no defense that such confinement had been caused by an accident to the train due to the negligence of defendant.”
This charge was approved by the appellate court as a correct interpretation of the statute.
In the later 28-hour law, enacted June 29, 1906, c. 3594, 34 Stat. 607 (U. S. Comp. St. Supp. 1909, p. 1178), the exception reads:
[478]*478“Unless prevented by storm or by other accidental or unavoidable cause, which cannot be anticipated or avoided by the exercise of due diligence and foresight.”
The construction of this exception by the courts has been uniform that only some unavoidable cause which could not have been guarded against by the exercise of due diligence and foresight is within its meaning. United States v. Southern Pacific R. R. Co. (D. C.) 157 Fed. 459; United States v. A. T. & S. F. Ry. Co. (D. C.) 166 Fed. 160; United States v. Union Pacific R. R. Co., 169 Fed. 65, 94 C. C. A. 433; United States v. Atlantic Coast Line, 173 Fed. 764, 98 C. C. A. 110. Other’cases not arising under the 28-hour law, but holding as was held in the case above cited, are Clyde v. Richmond & D. R. R. Co. (C. C.) 59 Fed. 394; The Olympia, 61 Fed. 120, 9 C. C. A. 393.
In United States v. A., T. & S. F. Ry. Co., it was held that, for a carrier to avail itself of a breakdown or wreck as an excuse, it must be shown that the circumstances relied on resulted from a cause which could not'have been avoided by the exercise of due diligence and foresight.
In United States v. Atlantic Coast Line it was held that the failure of a conductor to examine a waybill is not a legal excuse.
In Welles v. Castles, 69 Mass. 325, it was held the term “unavoidable accident” has a much more restricted meaning, and comprehends only damage and destruction arising from supervening and uncontrollable forces or accident. Other cases to the same effect are Dreyer v. People, 188 Ill. 40, 58 N. E. 620, 59 N. E. 424, 58 L. R. A. 869; Smith v. Southern Railway Co., 129 N. C. 374, 40 S. E. 86; Tays v. Ecker, 6 Tex. Civ. App. 188, 24 S. W. 954; Crystal Springs Distillery Co. v. Cox, 49 Fed. 556, 1 C. C. A. 365.
[8] Applying these rules to the facts as established by the evidence in this case,’ did they justify a peremptory instruction to return a verdict for the defendant? The rule of law is well settled that it is only when all reasonable men in the exercise of a fair and impartial judgment would draw the' same conclusions from the facts which condition the issue that it is the duty of the court to withdraw that question from the jury.
[9] Is a delay in starting caused by reason of the fact that another train is late an excuse within the rneaning of the proviso ? That was a matter which was known to the carrier or its officers in charge of the employes at the time they left the terminal, and they knew that it would cause delay in the .employes getting off duty. There is nothing-unforeseen in this.
But it is contended by learned counsel for defendant that the time during which the train was delayed should not be included within the time the crew was on duty. No reason is given for such a construction, and there is nothing in the act to justify it. The employé goes on duty when required by the rules of the employer to report for duty, and if for any reason he is delayed unless it is for some cause excepted by the proviso of the act the time he is on duty runs. United States v. Illinois Central R. R. Co, (D. C.) 180 Fed. 630. Any other construction would, to a great extent, defeat the object of the statute [479]*479to prevent employés of railroads from working for so many hours as to unfit them to discharge their duties intelligently and with safety to the train. It may and does happen frequently that trains are delayed in starting five or six or even eight hours. If the employés composing the crew on that train are required to remain on duty during that time and then remain on duty for 16 hours while the train is being operated, would they be in physical condition to manage that train with safety?
It is claimed that time lost by reason of side-tracking to give passenger or superior freight trains the right of way is an excuse, but it has been expressly held in United States v. Southern Pacific Railway Co. (D. C.) 157 Fed. 459, that this is no excuse if the meeting of such trains could have been anticipated at the time the train was dispatched from its starting point. Of course the roadmaster or chief train dispatcher of defendant must have known that other trains would be met, and, as shown by the evidence of the witnesses for the defendant, passenger trains and certain other freight trains were superior trains and had the right of way over those trains, and it was then-duty to take the side track to enable the superior trains to pass.
There was some time lost by reason of hot boxes, and this it is claimed was an unavoidable accident. It is a matter of universal knowledge that science has not yet been able to discover the means of preventing hot boxes entirely, but a careful examination of them before starting a train and examination at stopping points will reduce accidents of that nature to a minimum. But in no event can it be said that a hot box is an unavoidable or unforeseen accident. The officials of defendant could reasonably anticipate that hot boxes are likely to occur on every train, more especially on freight trains such as these were, and it was their duty to take that fact, as well as the frequency with which other trains would be met, into consideration in establishing the division or terminal yards and determining the distances for them. If they failed to do so, and by reason of such failure the crews on its trains are required to remain on duty for a longer period than 16 consecutive hours, it is guilty of a violation of this act. United States v. A., T. & S. F. Ry. Co. (D. C.) 166 Fed. 160.
The time lost by reason of the locomotive getting out of steam or cleaning fires could by the exercise of reasonable diligence certainly have been anticipated and prevented. The coal, although testified to that it was as good as that sold to other railroads, evidently was not a good steam coal, or else the engines must not have been in proper condition. In fact, the evidence of the engineers of defendant shows that the engines used on the train were old and the coal, owing to a good deal of slack, would cake and not burn as freely as lump coal. If fires will give out as frequently as the evidence in this case shows, there must certainly be a remedy for it. What would become of the defendant’s through passenger trains if this condition existed on their locomotives? All the delays shown by the evidence to have occurred could have been prevented by the exercise of reasonable diligence or at least anticipated, and the court is unable to find, after a careful reading of all the testimony, that any delays were caused by casualty, [480]*480unavoidable accident, or act of God, or by any .cause which could not have been foreseen. The view most favorable to the defendant is that the cause is one which ought to have been submitted to the jury for determination.
Entertaining these views the court, with great reluctance, in view of the high regard it has always entertained for the learning and ability of the great jurist who tried this case, feels that it is its duty to sustain the motion for a new trial, as the responsibility rests upon it.