Brotherhood of R. R. Trainmen, In re

• Decision Date: 24 April 1967
• Docket Number: No. A--52,A--52
• Citation: 49 N.J. 174,229 A.2d 505
• Parties: In the Matter of the Formal Complaint of BROTHERHOOD OF RAILROAD TRAINMEN, Brotherhood of Locomotive Engineers and Brotherhood of Locomotive Firemen, etc., Alleging Unwarranted, Unreasonable and Unsafe Conditions, etc. The PENNSYLVANIA RAILROAD COMPANY and Pennsylvania Reading Seashore Lines, Appellants, v. BOARD OF PUBLIC UTILITY COMMISSIONERS, DEPARTMENT OF PUBLIC UTILITIES and Brotherhood of Railway Trainmen, et al., Respondents.
• Court: New Jersey Supreme Court

Page 174

49 N.J. 174

229 A.2d 505

In the Matter of the Formal Complaint of BROTHERHOOD OF RAILROAD TRAINMEN, Brotherhood of Locomotive Engineers and Brotherhood of Locomotive Firemen etc., Alleging Unwarranted, Unreasonable and Unsafe Conditions, etc. The PENNSYLVANIA RAILROAD COMPANY and Pennsylvania Reading Seashore Lines, Appellants, v. BOARD OF PUBLIC UTILITY COMMISSIONERS, DEPARTMENT OF PUBLIC UTILITIES and Brotherhood of Railway Trainmen, et al., Respondents.

No. A--52.

Supreme Court of New Jersey.

Argued Feb. 13, 1967.

Decided April 24, 1967.

Richard N. Clattenburg, Philadelphia, Pa., for appellants (O'Mara, Schumann, Davis & Hession, Jersey City, attorneys, Charles E. Mechem and William P. Quinn, Philadelphia, Pa., on the brief).

James M. Davis, Jr., Mount Holly, for respondent, Brotherhoods (Powell & Davis, Mount Holly, attorneys).

Alan B. Handler, First Asst. Atty. Gen., for respondent, Board of Public Utility Commissioners (Arthur J. Sills, Atty. Gen. of New Jersey, attorney, Avrom J. Gold, Asst. Atty. Gen., and William Gural, Deputy Atty. Gen., of counsel).

The opinion of the court was delivered by

JACOBS, J.

Effective October 18, 1964, the Railroads made rule changes which included the elimination of flagging requirements in automatic block signal territory and in manual block signal territory when absolute block is in effect. Thereafter the Brotherhoods filed a complaint before the Board of Public Utility Commissioners primarily attacking the rule changes as not consistent with reasonable safety. After due hearings, a hearing examiner submitted a report with various recommendations including one that the preexisting flagging requirements be reinstated. On January 12, 1966, the Board adopted the examiner's recommendations and entered an order which directed, Inter alia, that the Railroads (a) 'restore Rules 99 and 152 to the wording in effect prior to October 18, 1964, insofar as said wording pertains to protection by flagging'; and (e) 'maintain headlights on each train in conformity with the applicable regulations of the Interstate Commerce Commission.' The Railroads appealed to the Appellate Division and we certified before argument there.

The Railroads have long maintained block systems for regulating train movements so as to space trains properly and avoid collisions. A block is a length of track within defined limits and may be controlled manually or automatically. In the manual block system, permission to enter a block and advice as to whether it is clear is given by an employee, normally by a signal indication at the entrance to the block. In manual absolute block territory (Rule 316), the train is signaled to stop at the entrance of the block containing the preceding train, whereas in manual permissive block territory (Rule 317) it may be permitted to enter the block with speed restriction and warning as to the presence of the preceding train. In automatic block territory, signal indications as to the conditions in each block are given automatically. Electrical circuits in the rails detect the presence of trains and the signals at the entrances to the blocks are governed accordingly. Automatic block signals are so set up as to show the conditions of more than one block ahead. Where the block about to be entered contains a preceding train, the automatic signal is designated as 'stop and proceed' which calls upon the engineer to stop and then to proceed with caution at restricted speed not exceeding 15 miles per hour.

In manual block territory, the employee may of course display a false signal which may contribute to a disastrous collision. The possibility of such human error is self-evident and was acknowledged by the Railroads during the hearings before the examiner. Similarly, in automatic block territory, there may be false signals resulting from mechanical or electrical failures and through the malfunction of safety devices. During the hearings, the Railroads introduced evidence as to the high degree of reliability of the automatic signal system. However, they acknowledged that through the years there have been many failures in the operation of the automatic system but stressed that most of these resulted in more restrictive and therefore non-dangerous signals, rather than in 'false-proceed' signals which would dangerously call for less restriction than warranted by the actual conditions. During the hearings, the Pennsylvania Railroad's Engineer, Signals and Catenary, testified that from 1955 to 1964 it reported to the Interstate Commerce Commission, false proceed failures on its entire system which ranged between 3 and 10 in number Per annum. During the same period, 6 rear-end accidents occurred in New Jersey and in some of those the absence of flagging was reported as a possible cause.

Prior to October 18, 1964, Rule 99 directed that when a train stops under circumstances in which it may be overtaken by another train, the flagman must go back immediately with flagman's signals, 'a sufficient distance to insure full protection,' placing torpedoes and, when necessary, lighted fusees. A note stipulated that when operating under automatic block system rules, Rule 99 will have been complied with 'when full protection is afforded against trains moving at restricted speed.' The October 18th changes provided (1) that when trains are operating under automatic block system rules, 'the requirements of Rule 99 to not apply for following movements on the same track,' and (2) that when trains are operating under manual block system rules, 'the requirements of Rule 99 will not apply for following movements on the same track when Rule 316 is in effect, except when required by train order or timetable instructions.'

Several witnesses testified on behalf of the Brotherhoods to the effect that the elimination of the flagman removed an additional safety protection which was reasonably required. They referred to a relatively recent accident which might have been averted by proper flagging activity, and to various accident investigations which have disclosed rusty tracks and other equipment deficiencies likely to lead to failures in the automatic system. Several witnesses on behalf of the Railroads took the position that the elimination of the flagman would increase rather than decrease safety by placing full rather than divided responsibility on the engineer. Mr. Rathvon, Manager of Operating Rules of the Pennsylvania, put the matter this way: 'I think that by removing the flagman we have removed the temptation for the engineman to rely on still another signal after he had been given a signal that the track is occupied. I believe in this respect we have created a rule that will improve the safety of our operations significantly.'

The hearing examiner, in recommending that Rule 99 be restored to its wording prior to October 18th insofar as it applied to protection by flagging, flatly rejected the position of the Railroads on the safety issue, noting that 'it is evident that the signal systems both automatic and manual are not perfect, and that any means of maintaining a check on possible errors is desirable.' He also rejected the change in Rule 152 which eliminated the flagman requirement in cases where trains crossed over to or obstructed other tracks, pointing out that it would remove any responsibility for protection from the train crew and would place it 'solely upon the tower operator, who may be located many miles from the scene.' He expressed the view that the elimination of the flagman requirement would be 'a reduction in the safety of operation.'

In its decision adopting the examiner's recommendations, the Board of Public Utility Commissioners referred not only to the testimony before him but also to earlier investigations by the Board of railroad accidents which were found by it to have been caused by human, electrical or mechanical failures or by the failure of safety devices to produce expected results. Cf. Pennsylvania Railroad Co. v. Dept. of Public Utilities, 14 N.J. 411, 427, 102 A.2d 618 (1954). The Board pointed out that consideration must be given 'to the use of every reasonable, incremental safety measure available, for this may be the very margin needed to prevent a serious accident.' It recognized that the use of flag protection may cause some delay to trains but concluded that the safety aspects of rear-end flagging outweigh that consideration and that through flagging 'a human or mechanical failure otherwise of tragic consequence may be overcome.' It did not accept the Railroads' contention that the elimination of rear-end flagging was actually a safety improvement but determined instead that the flagging requirements of Rules 99 and 152 should be reinstated as reasonably essential to the safety of the traveling public and railroad personnel.

The Railroads urge that the Board's order restoring the flagging requirements was not supported by substantial evidence in the record and was 'an abuse of administrative discretion.' The Board is expressly authorized by statute to impose reasonable safety requirements on railroads operating within New Jersey. R.S. 48:2--23, N.J.S.A.; R.S. 48:2--25, N.J.S.A.; Pennsylvania Railroad Co. v. Dept. of Public Utilities, supra, 14 N.J., at p. 425, 102 A.2d 618. R.S. 48:2--23, N.J.S.A., provides that the Board may require any public utility to furnish safe, adequate and proper service; and R.S. 48:2--25, N.J.S.A., provides that it may fix just and reasonable practices to be followed by any public utility. See also R.S. 48:2--13, N.J.S.A.; R.S. 48:3--3, N.J.S.A. An order of the Board fixing safety requirements may be reviewed judicially but will not be upset where there was reasonable basis for its entry. R.S. 48:2--46, N.J.S.A.; In re Greenville Bus Co., 17 N.J. 131, 137--138, 110 A.2d 122 (1954); Penna.--Reading Seashore Lines v. Bd. of Pub. Utility Com'rs, 13 N.J.Super. 540, 548--549, 81 A.2d 28 (App.Div.), affirmed 8...