Argument for Petitioners. 231 U. S. Tinsdale, 10 Abb. Pr. (N. S.) 374; State v. Comfort, 22 Minnesota, 271. For cases in which the act, though involving two or more persons or things, was held to constitute a single offense, see Crepps v. Durden, Cowp. 640; Regina v. Giddens, 41 E. C. L. 344; Clem v. State, 42 Indiana, 420; Hoiles v. United States, 3 McArthur, 370; United States v. Patty, 2 Fed. Rep. 664; United States v. Scott, 74 Fed. Rep. 213; Hurst v. State, 86 Alabama, 604; Ben v. State, 22 Alabama, 9; Westfall v. State, 62 S. E. Rep. 558; Peck v. State, 111 S. W. Rep. 1019; Scott v. State, 81 S. W. Rep. 950; State v. Warren, 39 Am. St. Rep. 401; State v. Nelson, 29 Maine, 329; Woodford v. People, 62 N. Y. 117; Gordon v. State, 46 Oh. St. 607. The working of five employés engaged on the same piece of work at one and the same time is but a single offense. Muckenfuss v. State, 55 Tex. Crim. 229; State v. Hennessy, 25 Oh. St. 339; Smith v. State, 59 Oh. St. 350; State v. Egglesht, 41 Iowa, 547; Commonwealth v. Crowell (Ky.), 60 S. W. Rep. 179; State v. Batson, 108 Louisiana, 479; Ward v. State, 90 Mississippi, 294; State v. Douglas, 26 Nevada, 196; People v. Thomas, 17 Wardell, 475; State v. Clark, 46 Oregon, 140; Cornell v. State, 104 Wisconsin, 527; State v. Stevens, 70 Atl. Rep. 1060. A consideration of other acts of Congress leads to the same conclusion. Had it been intended that a penalty should be incurred for each employé, Congress would have clearly so provided, as it did in other statutes. See §§ 4, 5, of the Alien Immigration Act of March 3, 1903; § 2 of the Accidents Reports Act of May 6, 1910; § 20 of the Act to Regulate Commerce as amended June 24, 1906; § 6 of the Act to Regulate Commerce as amended June 18, 1910. Cases arising under the Safety Appliance Acts holding that a penalty can be recovered for each car or each engine handled in violation of the statute are by the Circuit Courts of Appeals and the District Courts, and this court has not passed upon the question. It may reach a different conclusion. See United States v. Chi. G. W. Ry. Co., 162 Fed. Rep. 775. A member of a train crew while not actually engaged in or having a duty to perform in connection with the movement of his train, his time being at his disposal, is off duty within the meaning of the Hours of Service Act. The term "on duty" cannot be made plainer by discussion. United States v. Denver & R. G. R. R. Co., 197 Fed. Rep. 629; Atchison &c. Ry. Co. v. United States, 177 Fed. Rep. 118; S. C., 220 U. S. 37; but see United States v. Chi., M. &c. R. Co., 197 Fed. Rep. 627. Under the Federal eight-hour law for laborers, the meal hour is never treated as time on duty. During periods of waiting brakemen are not actually engaged in the movement of the train nor are they connected with the movement thereof. Atchison, T. & S. F. R. Co. v. United States, 177 Fed. Rep. 118; United States v. Illinois Central R. R. Co., 180 Fed. Rep. 630; United States v. Chicago, M. & P. S. Ry. Co., 195 Fed. Rep. 183; United States v. Kansas City So. R. Co., 189 Fed. Rep. 471; United States v. Chicago, M. & P. S. Ry. Co., 197 Fed. Rep. 624; United States v. D. & R. G. Ry. Co., 197 Fed. Rep. 629. The failure of an injector, caused by impure water, where, owing to a protracted drouth, water cannot be procured that will not foam and thus cause injector failures, is an unavoidable accident within the meaning of the Hours of Service Act. As to what is an unavoidable accident within the meaning of this proviso, see United States v. Kansas City So. R. Co., 189 Fed. Rep. 471; S. C., 202 Fed. Rep. 828. Under the facts in these cases the delay was the result of a cause not known to the defendant or its officer or agent Argument for the United States. 231 U. S. in charge of the employés at the time they left the terminal, and which could not have been foreseen. Upon the request of either party the penalty to be assessed in a case arising under the Hours of Service Act should be submitted to the jury, even where the court instructs a verdict for the Government. Suits by the Government for penalties under the Hours of Service Act are actions at law for debt, and, as such, are civil suits. Hepner v. United States, 213 U. S. 103; United States v. Atlantic C. L. R. Co., 182 Fed. Rep. 285; United States v. St. Louis S. W. Ry. Co., 184 Fed. Rep. 32; United States v. Sioux City Stock Yards Co., 167 Fed. Rep. 126; United States v. Kansas City So. R. Co., 202 Fed. Rep. 828. In a civil suit, where the damages or penalties are not made certain and fixed by the terms of a contract or statute, the court, upon request, should submit to the jury the question of assessing the damages or penalties. Renner v. Marshall, 1 Wheat. 215; Aurora v. West, 7 Wall. 104; Armstrong v. Carson, 2 Dall. 302; Kenyon v. Gilmer, 131 U. S. 22; Hines v. Darling, 57 N. W. Rep. 1081; McDaniel v. Gate City Gas Light Co., 3 S. E. Rep. 693. In a consolidated cause, involving two suits of five counts each, where in any event but one penalty can be recovered in each case, it is plain error for the court to instruct the jury to find against defendant on each count and to assess a penalty on each count. United States v. T. & C. R. Co., 176 U. S. 242; United States v. Pennsylvania, 175 U. S. 500; School District v. Hall, 106 U. S. 428. Mr. Assistant Attorney General Denison for the United States: The question whether separate penalties are to be imposed for every employé who is worked over hours is exclusively a question of construction of the statute involved, and this statute clearly so intends. Hours of 231 U. S. Argument for the United States. Service Act, 34 Stat. 1415; Twenty-Eight-Hour Law, 34 Stat. 607; Baltimore & Ohio R. R. Co. v. United States, 220 U. S. 94; Chicago &c. R. R. Co. v. People, 82 Ill. App. 679; Commonwealth v. Jay Cooke, 50 Pa. St. 201; O'Neil v. Vermont, 144 U. S. 323; People v. Spencer, 201 N. Y. 105; People v. New York Cent. R. Co., 13 N. Y. 78; Southern Ry. Co. v. State, 165 Indiana, 613; United States v. Chicago &c. R. Co., 197 Fed. Rep. 624; United States v. Denver & R. G. R. Co., 197 Fed. Rep. 629; United States v. St. Louis S. W. R. Co., 184 Fed. Rep. 28; United States v. Chicago G. W. Ry. Co., 162 Fed. Rep. 775. The train crew in this case were "on duty," within the meaning of the act, 19 hours and 40 minutes. United States v. C., M. & P. S. R. Co., 195 Fed. Rep. 625; United States v. Denver & R. G. R. Co., 197 Fed. Rep. 629; United States v. C., M. & P. S. R. Co., 195 Fed. Rep. 783; United States v. Kan. City Ry. Co., 189 Fed. Rep. 471; United States v. St. Louis S. W. R. Co., 189 Fed. Rep. 954; United States v. Ill. Cent. Ry. Co., 180 Fed. Rep. 630. The cause of the delay to train No. 404 was not within the exception. Gleeson v. Virginia Midland R. Co., 140 U. S. 435; The Majestic, 166 U. S. 375; United States v. Garbish, 222 U. S. 257. The size of the penalty (within the maximum) was a question for the court and not for the jury. Atchison &c. Ry. Co. v. United States, 178 Fed. Rep. 12; Boyd v. United States, 116 U. S. 616; Chi., B. & Q. R. Co. v. United States, 220 U. S. 559; Hepner v. United States, 213 U. S. 103; Hines v. Darling, 57 N. W. Rep. 1081; Johnson v. So. Pac. Co., 196 U. S. 1; Lees v. United States, 150 U. S. 476; Missouri, K. & T. Ry. Co. v. United States, 178 Fed. Rep. 15; McDaniel v. Gate City Co., 3 S. E. Rep. 693; O'Connell v. O'Leary, 145 Massachusetts, 311; United States v. Zucker, 161 U. S. 475; United States v. Atlantic Coast Line, 173 Fed. Rep. 764; United States v. Southern Pacific Co., 162 Fed. Rep. 412; United States v. Southern Pacific Co., 157 Fed. Rep. 459; United States v. Boston & Albany R. Co., 15 Fed. Rep. 209. MR. JUSTICE HOLMES delivered the opinion of the court. This case brings up two suits that were consolidated and tried together, both being suits for penalties under the Hours of Service Act of March 4, 1907, c. 2939, 34 Stat. 1415, for keeping employés on duty for more than sixteen consecutive hours. The main question is whether, when several persons thus are kept beyond the proper time by reason of the same delay of a train, a separate penalty is incurred for each or only one for all. The Circuit Court of Appeals decided for the Government without discussion. The petitioner cites many cases in favor of the proposition that generally, when one act has several consequences that the law seeks to prevent, the liability is attached to the act, and is but one. It argues that the delay of the train was such an act and that the principle, which is a very old one, applies. Baltimore & Ohio Southwestern R. R. Co. v. United States, 220 U. S. 94. But unless the statute requires a different view, to call the delay of the train the act that produced the wrong, is to beg the question. See Memphis & Charleston R. R. Co. v. Reeves, 10 Wall. 176. Denny v. New York Central R. R. Co., 13 Gray, 481. The statute was not violated by the delay. That may have made keeping the men overtime more likely, but was not in itself wrongful conduct quoad hoc. The wrongful act was keeping an employé at work overtime, and that act was distinct as to each employé so kept. Without stopping to consider whether this argument would be met by the proviso declaring a 'delay' in certain cases not to be within the statute, it is enough to observe that there is nothing to hinder making each consequence a separate cause of action or offence, if by its proper construction the law does so; see Flemister v. United States, 207 U. S. 372, |