ATCHISON, TOPEKA AND SANTA FE RAILWAY CO. v. United States, 9988.
| Decision Date | 20 November 1968 |
| Docket Number | No. 9988.,9988. |
| Parties | The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
William J. Ross, Oklahoma City, Okl. (Rainey, Flynn, Welch, Wallace, Ross & Cooper, Oklahoma City, Okl., on brief) for appellant.
Givens L. Adams, Asst. U. S. Atty., and J. Thomas Furphy, Trial Atty., Dept. of Transportation (B. Andrew Potter, U. S. Atty., on brief) for appellee.
Before PHILLIPS, HILL and SETH, Circuit Judges.
The United States brought this action against The Atchison, Topeka and Santa Fe Railway Company to recover penalties for violations of § 1 of the Safety Appliance Act (45 U.S.C.A. § 1, 27 Stat. 531), which in part here pertinent reads:
"It shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving-wheel brake * * *."
Section 8 of the Safety Appliance Act (45 U.S.C.A. § 8, 32 Stat. 943) provides that the provisions and requirements of § 1, supra, relating to power brakes on all locomotives, shall apply to any railroad engaged in interstate commerce, regardless of whether such locomotives are being used in moving interstate or intrastate traffic.1
From a judgment in favor of the United States, the Railway Company has appealed.
The facts are not in dispute.
On September 21, 1966, the Railway Company was engaged in interstate commerce by railroad and operated its self-propelled Burro Crane No. 1754 at its Nowers Yard in Oklahoma City, Oklahoma, which was a part of its system of interstate commerce. On that day and at that place, the crane was used by the Railway Company to pull two push cars and push one flat car over tracks in such yard, a distance of 4,600 feet, and on the same day and in the same yard the crane was used by the Railway Company to pull and push other like cars in four other like movements.
The crane, in carrying out such movements, was being operated or used as a locomotive. The cars were loaded with material to be unloaded and used in conjunction with the crane.
The crane was equipped with foot brakes, which could be operated from the cab of the crane. It was not equipped with power brakes, which could be actuated with compressed air, electrical, steam, or vacuum power, and it was not equipped with a valve nor a brake reservoir.
The clause in the statute, "power driving-wheel brake," refers to the source of the power. It means brakes on the driving wheels of the locomotive. It is actuated by compressed air.2
Normally, there are two separate brake valves or appliances on the locomotive cab, one for operating the locomotive brakes independently of the train brakes, and one for the train air brakes.
"Power brake" was defined by an order of the Interstate Commerce Commission, reading as follows:
(App. to 49 C.F.R. § 132.3, and §§ 132.10-132.17.)3
The legislative history of this statute lends support to the Commission's construction of § 1.4
The adjudicated cases also support the construction stated above.5
We think United States v. Ogden Union Railway and Depot Company, 10 Cir., 370 F.2d 540, is clearly distinguishable from the instant case. That case involved the requirement of § 9 that cars be equipped with air brakes. The instant case involves the requirement of § 1 that locomotives be equipped with power brakes on their driving wheels. In the Ogden case, the court simply held that § 9 did not apply to cars in switching operations, when such cars were not part of a train movement. Here, the locomotive was used by a railroad engaged in interstate commerce to move cars on tracks in its yard which were a part of its interstate system. We hold the locomotive was required by § 1, supra, to be equipped with power brakes on its driving wheels, even though it was only being used to move cars in its yard and the movements involved were not normal switching operations and were not train movements.
Hence, we conclude the decision of the trial court was correct, and the judgment is affirmed.
1 See Southern Railway Company v. United States, 222 U.S. 20, 24-26, 32 S.Ct. 2, 56 L.Ed. 72; Southern Railway Company v. Railroad Commission of Indiana, 236 U.S. 439, 445, 35 S.Ct. 304, 59 L.Ed. 661; Texas & Pacific Railway Co. v. Rigsby, 241 U.S. 33, 41, 36 S.Ct. 482, 60 L.Ed. 874.
3 These sections have been renumbered in App. to 49 C.F.R. as § 232.3 and §§ 232.10-232.17 (1967).
5 United States v. Fort Worth & Denver City Ry. Co., N.D.Tex., 21 F.Supp. 916, 919; In New York, New Haven & Hartford R. Co. v. Leary, 1 Cir., 204 F.2d 461, cert. denied 346 U.S. 856, 74 S.Ct. 71, 98 L.Ed. 370, the court held that the power brake provision in 45 U.S.C. §§ 1, 9, very...
To continue reading
Request your trial
-
Santillanes v. Union Pac. R.R. Co.
...and used in conjunction with the crane, over tracks, "was being operated or used as a locomotive" in Atchison, T. & S. F. Ry. Co. v. U. S., 403 F.2d 211, 212 (10th Cir. 1968).15 In a personal injury action byrailroad worker, the trial court held, and the Supreme Court of Alabama affirmed, t......
-
Illinois Cent. Gulf R. Co. v. Haynes
...id., and that this is true even when the pushing and pulling is only inside the railroad's yard. Id. See Atchison, T. & S.F. R.R. v. United States, 403 F.2d 211 (10th Cir.1968). The Tenth Circuit in Garcia found that the vehicle in that case, an Electronic Tamper, was not a locomotive since......
-
Garcia v. Burlington Northern R. Co.
...the railroad's own yard, the vehicle is acting as a locomotive and, thus, is a locomotive under the BIA. Atchison, T. & S.F. Ry. v. United States, 403 F.2d 211, 212-13 (10th Cir.1968). In Mazzucola v. Pennsylvania R.R., 281 F.2d 267 (3d Cir.1960), the court further defined this requirement ......