Pennsylvania Railroad Co. v. Chesapeake & Ohio R. Co.

• Decision Date: 07 February 1956
• Docket Number: No. 12346.,12346.
• Citation: 229 F.2d 721
• Parties: The PENNSYLVANIA RAILROAD COMPANY, Appellant, v. The CHESAPEAKE & OHIO RAILROAD COMPANY, and The Louisville & Nashville Railroad Company, Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

229 F.2d 721 (1956)

The PENNSYLVANIA RAILROAD COMPANY, Appellant, v. The CHESAPEAKE & OHIO RAILROAD COMPANY, and The Louisville & Nashville Railroad Company, Appellees.

No. 12346.

United States Court of Appeals Sixth Circuit.

February 7, 1956.

Thomas W. Bullitt, Louisville, Ky., Wm. Marshall Bullitt, R. Lee Blackwell, Bullitt, Dawson & Tarrant, Louisville, Ky., on brief for appellant.

Porter M. Gray, Ashland, Ky., Wm. L. Wallace, Lexington, Ky., Strother Hynes, Richmond, Va., on brief, for appellee C. & O. R. R.

James Park, Lexington, Ky., Charles S. Landrum, Lexington, Ky., for appellee L. & N. R. R.

Before SIMONS, Chief Judge, and MARTIN and McALLISTER, Circuit Judges.

MARTIN, Circuit Judge.

This case possesses novelty, but, when analyzed, is not difficult to decide.

On July 14, 1919, in a conference among their representatives — superintendents, train masters and chief clerks — three interstate railroad carriers, being operated by the United States Railroad Administration, reached an agreement to cover "handling the interchange" among their lines, including the use of a railroad bridge owned by one of the carriers. The agreement was to become effective on August 1, 1919. The three contracting parties were The Pennsylvania Railroad Company, The Chesapeake & Ohio Railway Company, and The Louisville and Nashville Railroad Company: all parties to this action.

The Louisville and Nashville owned a railroad bridge which spanned the Ohio River from a point in Newport, Kentucky, to a point on the opposite shore in Cincinnati, Ohio. The agreement provided for billing among them for use of the engines and crews of the respective carriers, and contained this important clause: "(8) Each road to consider engines and crews of the other road, while on its rails, as its own and to be responsible for any and all accidents or damage thereto or thereby, except that in the operation of Pennsylvania and C&O engines on L&N rails, between Newport, Ky., and Pt. Isabella, the L&N Railroad will not be responsible for accidents, losses, damages and injuries to persons or property if caused by defective equipment, and will look for reimbursement therefor to the delivering line. Liability to be determined by joint investigation by roads involved."

During 1921, correspondence among the carriers confirmed their understanding of Clause 8 of the agreement of July 14, 1919. For instance, on October 20, 1921, the Superintendent of the Chesapeake & Ohio Railway Company wrote the Superintendents of the Pennsylvania and Louisville & Nashville railroads a letter containing the following paragraph: "With reference to the liability clause, the way we understand it is that each road will be responsible for any and all accidents and damage to property occurring while on its rails regardless of whose engine or crew is involved, with the single exception that the L&N will not be responsible for any accidents due to defective equipment, and, in such instances, will look to the delivering line for reimbursement."

Nearly eleven years later, on March 29, 1932, the Superintendent of the Pennsylvania Railroad wrote the Superintendents of the Chesapeake & Ohio and Louisville & Nashville railroads a letter containing the following paragraph: "So far as our records indicate, the agreement of July 14, 1919, has never been abrogated, and is still in effect; but in order to avoid any future controversy as to the time of engines, personal injuries or damage of any kind while C&O or PRR engines and crews are on L&N rails, I feel that it would be well, in view of some doubt which seems to exist at this time, for each of us to have in our files a letter showing that the 1919 agreement is still in effect, except insofar as it conflicts with the agreement of October 29, 1926, between the L&N and PRR." From the amended and substituted answer of the Louisville & Nashville, it appears that on October 29, 1926, the Louisville & Nashville and the Pennsylvania entered into a separate written agreement in relation to the interchange between the Lower and Undercliff Yards of the Pennsylvania and the yards of the Louisville & Nashville at Latonia and DeCoursey, Kentucky, over the Newport-Cincinnati Bridge. This supplemental agreement was evidently immaterial to the issue here involved. Responsive letters from the superintendents of the other two railroads confirmed the continuing effectiveness of Clause 8 of the agreement of July 14, 1919.

We think, as did the United States District Judge, that it was established that Clause 8 was in effect on October 5, 1946, at the time of the occurrence of the unusual accident which was causative of this litigation.

In the Cincinnati area, there had long been heavy interchange traffic among these three important railway systems. The agreement of July 14, 1919 obviously was made to expedite this traffic. The only railroad bridge available for this interchange traffic over the Ohio River leads into Cincinnati, Ohio, from the Kentucky side, and is owned by the Louisville & Nashville Railroad Company. The Chesapeake & Ohio Railway line enters Newport, Kentucky, on the south side of the Ohio River and there intersects a line of the Louisville & Nashville. The Chesapeake & Ohio has a railroad yard some seven or eight miles from Newport; and the yards of the Louisville & Nashville are located at nearby DeCoursey and Latonia, Kentucky. These two carriers make up trains in their respective yards.

Across the Ohio River, the Pennsylvania has constructed its railroad in the State of Ohio to a point of intersection with the Louisville & Nashville lines on the north side of the river. Its railroad tracks do not enter the State of Kentucky. On the Kentucky side of the Ohio River, the Chesapeake & Ohio trains are compelled to use a portion of the Louisville & Nashville tracks to reach the bridge and to travel over it.

In the early morning hours of October 5, 1946, a Chesapeake & Ohio train, pulled by Engine No. 981, was made up in its yard to be carried over its tracks into Newport, thence over part of the Louisville & Nashville tracks in Newport; and then over the latter's tracks on its railroad bridge to Point Isabella, where the Louisville & Nashville tracks converge into those of the Pennsylvania Railroad. It was intended that the Chesapeake & Ohio train should proceed from Point Isabella over the Pennsylvania Railroad tracks into the Undercliff Yard of the Pennsylvania. The Chesapeake & Ohio train consisted of a steam locomotive engine (No. 981), thirty loaded cars, two empties, and a caboose. Tests of the condition of the engine and cars were made at its yard. All equipment was found to be in satisfactory condition for transportation of the train. The Chesapeake & Ohio train proceeded over its own tracks to Newport; and, after some switching had taken place there, traveled on to the Louisville & Nashville tracks. Further tests of its equipment were made; and all was found again to be in satisfactory working shape.

At Newport, a Louisville and Nashville engine was attached to the rear of the Chesapeake & Ohio train to aid it up the incline of the Louisville & Nashville bridge. The operator of the Chesapeake & Ohio in the road's tower in Newport communicated with the Louisville & Nashville dispatcher, who, in turn, communicated with the operator or dispatcher of the Pennsylvania Railroad in its tower on the Ohio side of the river. After some conversation between the dispatchers, and by mutual understanding, the Chesapeake & Ohio train, pulled by its engine No. 981 and pushed from the rear by the Louisville & Nashville engine, was given clearance to pass over the bridge. The Chesapeake & Ohio train entered upon the Louisville & Nashville tracks, climbed the ascending grade of the bridge after passing through the streets of Newport, and reached the top of the grade without incident.

The engineer, in conformity with customary practice, undertook to stop before the entire train passed over the apex of the bridge. He applied his service air brakes for the evident purpose of releasing the Louisville & Nashville pusher engine and then proceeded in usual fashion down-grade to the intersection with the Pennsylvania tracks. But he could not accomplish his purpose. As was said by the trial judge: "There is not the slightest indication in this proof that that engineer expected to do anything except to observe the rules and to observe the customary procedure. There is nothing to indicate that he intentionally or maliciously ran the red light located at the entrance to the Pennsylvania tracks. Unfortunately, those brakes didn't hold. What caused those brakes to fail is a matter of dispute; but whatever caused it, they didn't hold. The train gathered momentum as it descended from the bridge. The engineer blew his whistle. He realized what was about to happen and he wanted to avoid, as far as possible, hurting anybody. He blew that whistle when he discovered that his train had become out of control. It was out of his control. He was entirely helpless, as far as controlling that train was concerned."

A long west-bound Pennsylvania train was waiting on one of its own tracks in Cincinnati, for the purpose of traveling south over the Louisville & Nashville bridge after the Chesapeake & Ohio train had crossed the river and passed the intersection of the Louisville & Nashville tracks with the Pennsylvania tracks. The Pennsylvania operator had told the Louisville & Nashville dispatcher that the Pennsylvania train was waiting to pass over the bridge after the Chesapeake & Ohio train had crossed it. This operator had control of the switches at Point Isabella. He knew that, if the switches were not turned at Point Isabella, the Chesapeake & Ohio train — unless stopped before reaching the intersection — would come onto the westbound track on which the Pennsylvania train was standing. The Chesapeake & Ohio train's planned routing was that the train should...