Northern Pacific Ry. Co. v. Weinberg

• Decision Date: 18 November 1943
• Docket Number: No. 313.,313.
• Citation: 53 F. Supp. 133
• Parties: NORTHERN PACIFIC RY. CO. v. WEINBERG et al.
• Court: U.S. District Court — District of Minnesota

53 F. Supp. 133

NORTHERN PACIFIC RY. CO. v. WEINBERG et al.

No. 313.

District Court, D. Minnesota, Fifth Division.

November 18, 1943.

L. B. daPonte, M. L. Countryman, Jr., and F. J. Gehan, all of St. Paul Minn., and Donald D. Harries (of Gillette, Nye, Harries & Montague), of Duluth, Minn., for plaintiff.

Harry E. Weinberg and Albert R. Scanlon, both of Duluth, Minn., for defendants.

NORDBYE, District Judge.

The ordinance reads as follows:

"Section 1. (a) That the word `person' as used in this ordinance is defined to mean any person, firm, partnership, association, corporation, trustee, receiver or other court officer, and the plural of each.

"(b) That the word `locomotive' as used in this ordinance is defined to mean any and all railway engines, however propelled, when in use in the switching or transferring of railway cars upon railroad tracks within the corporate limits of the City of Duluth.

"Section 2. That to promote and protect the safety and welfare of employes operating locomotives on railroad tracks within the corporate limits of the City of Duluth, and to protect and promote public safety within the corporate limits of the City of Duluth where railroad tracks cross streets or avenues at grade, it shall be unlawful for any person to operate any locomotive, or cause or permit the same to be operated, upon any railroad tracks within the corporate limits of the City of Duluth, unless each such locomotive shall be then manned with a crew of not less than one qualified engineer or operator and one qualified fireman or helper.

"Section 3. That any person violating the provisions of this ordinance shall, upon conviction thereof, be punished by a fine not exceeding one hundred ($100.00) dollars, or by imprisonment for a period not exceeding eighty-five (85) days.

"Section 4. That each day any such locomotive is operated in violation of the provisions of this ordinance shall be deemed a separate offense.

"Section 5. That this ordinance shall take effect and be in force thirty (30) days from and after its passage and publication."

It is recognized by all parties that the Duluth Union Depot & Transfer Company is the so-called service unit of the plaintiff herein. The Duluth Union Depot is the passenger terminal of the Northern Pacific Railroad and other roads entering Duluth, and the Duluth Union Depot & Transfer Company services some nine passenger trains which use the Union Depot as a terminus. Generally speaking, the servicing consists of moving empty coaches to a train wye near Twentieth Avenue West in Duluth, the movement to the coach yard for servicing, and the transfer from the coach yard to the Union Depot. The switch movements may be described more in detail as follows:

The switch engine moves the empty passenger coaches some fifteen blocks through the yards of the plaintiff company to the wye. In this movement, the engine heads the train. After the train completes its movement through the wye, there is a backward movement of some blocks to the part of the yard known as the coach yard, where the coaches are cleaned and serviced. Usually an hour or so before train departure, the particular train is placed on one of the seven tracks of the depot, and when departure is made a regular road engine is used. In the movements referred to, the switch engine is at all times ahead of the train except in passing over one of the arms of the wye and in moving cars to and from the coach yard. However, at all times the movements of the engine in switching or backing are controlled by the switch crew. The track over which the movement takes place is free from curves except at the wye and except a slight curve in the train movement as it passes over the switches leading to the coach yard. The yards, however, at the place where the switching operations and movement take place are wide and spacious and free from obstruction except at Twenty-first Avenue West, where there is a building at the northeast corner of the street intersection with the tracks. All of the operations are on the private right-of-way of the plaintiff company except where the movement crosses Twenty-first Avenue West, a public crossing approximately at a point some fifty feet from its terminus on certain private property. While in the past the switching operations referred to at times cross Fifth Avenue West, which is protected by a switchman, gates and warning bell, it is stipulated that the proposed switching operation which is sought to be free from the mandate of the ordinance in question shall not cross Fifth Avenue. The usual speed of the switching engine as it moves in these operations is from ten to twelve miles an hour and does not exceed fifteen miles per hour. Across these tracks are some four viaducts for foot passengers which are an average distance of some four blocks apart, but notwithstanding these means afforded for pedestrian traffic, there are numerous paths across the tracks which are used by licensees as well as trespassers. However, when persons cross the tracks on any of the paths that may be found there, such persons would be in full, unobstructed view at all times. The terrain is flat and the width of the yard is substantially three hundred feet.

These switching operations have heretofore been carried on by a steam locomotive, with an engineer and a fireman in attendance and a switch crew of three trainmen. Plaintiff, intending to perform these services by the use of a small one-man Diesel engine, purchased from the General Electric Company a 44-ton Diesel electric locomotive at a cost of $38,150. This Diesel engine is designed and constructed for operation by one man. After the contract of purchase, but before the engine was delivered, the City of Duluth passed an ordinance forbidding, under heavy penalties, the operation of any engine when in use in the switching or transfer of railway cars upon railway tracks within the corporate limits of the City unless such locomotive be manned by a crew of not less than one qualified engineer or operator and one qualified fireman or helper.

The cab of the Diesel in question is centrally located midway between the front and rear of the body of the engine. The engineer sits on the right side of the cab, or he may stand. In either position, he has an unrestricted 360 degree view. While the evidence is not in agreement as to the impairment of his vision on the left side while he is seated, it fairly appears that the maximum impairment on the left side is approximately a distance of fifteen feet from the left rail and a distance of some twenty-five feet immediately ahead of the engine. This impairment is apparently due to the height of the engine casing or hood fore and aft. However, when the engineer stands, he can see "practically everything." The cab is equipped with mirrors which are, or can be, placed so as to enable the operator to see the track when he is seated without any substantial impairment. These mirrors may be installed on the inside or the outside of the cab. It does appear, however, that most operators do not use the mirrors in actual operation. The use of a small Diesel engine with one operator has been in general use by a number of railroads for some years. Many are thus used in switching operations in yards where train traffic is exceedingly dense; others are used on short road runs. The safety of operation of a one-man Diesel as experienced by numerous other railroads in switching and road service is fully sustained by the evidence.

Plaintiff contends that the ordinance is not authorized by the City Charter. In view of the conclusions hereinafter indicated, a lengthy discussion of this question is not suggested. It may be observed in passing that, under its Home Rule Charter adopted in 1912, the City of Duluth has, in addition to, and not limited by, the specific enumeration of powers in the 1900 charter, "all municipal power, functions, rights, privileges and immunities of every name and nature whatsoever." That this general grant in the Home Rule Charter confers power and authority tantamount to that granted under a general welfare clause seems apparent from the language of the Supreme Court of Minnesota in State ex rel. Zien v. City of Duluth, 1916, 134 Minn. 355, 361, 159 N.W. 792, 794, Ann.Cas. 1918A, 683, when that court stated in considering the language above quoted, "What is meant by `all municipal power' is not defined, but as here used the expression is obviously broad enough to include all those powers which are generally recognized as powers which may properly be given to and be exercised by municipal corporations." Whether the City can enact legislation under a general welfare clause controlling switching operations on a railroad's private property is at least a close question. The showing herein would not sustain a finding that the health, safety and well-being of the public at large would be affected or jeopardized in any way by the operation of a one-man locomotive on the private property...