Southern Pac. Co. v. Brown
| Decision Date | 11 April 1956 |
| Citation | 295 P.2d 861,207 Or. 222 |
| Parties | SOUTHERN PACIFIC COMPANY, a corporation, Respondent, v. Kenneth E. BROWN, District Attorney for Marion County, Oregon, successor in interest to Edward O. Stadter, Jr.; and Norman O. Nilsen, Labor Commissioner of the State of Oregon, successor in interest to William E. Kimsey, Appellants. |
| Court | Oregon Supreme Court |
Roy C. Atchison, Asst. Atty. Gen., argued the cause for appellants. With him on the brief were Robert Y. Thornton, Atty. Gen., Kenneth E. Brown, Dist. Atty., and Gerald C. Knapp, Asst. Atty. Gen., Portland.
Oglesby H. Young, Portland, argued the cause for respondent. On the brief were Koerner, Young, McColloch & Dezendorf and Joseph Larkin, Portland.
Before WARNER, C. J., and TOOZE, ROSSMAN, LUSK, BRAND and PERRY, JJ.
This is a suit for a declaratory judgment to determine the meaning of § 113-613, O.C.L.A., ORS 764.150, brought by Southern Pacific Company, a corporation, as plaintiff, against Kenneth E. Brown, district attorney for Marion county, Oregon, successor in interest to Edward W. Stadter, Jr., and Norman O. Nilsen, labor commissioner of the state of Oregon, successor in interest to William E. Kimsey, as defendants. From a decree in favor of plaintiff, defendants appeal.
Section 113-613, O.C.L.A., ORS 764.150, provides:
'(1) No person owning, controlling or operating any line of railroad in this state shall build, construct, reconstruct or repair railroad car equipment or motive power in the state without first erecting and maintaining at every division terminal, or other point where five employes or more are regularly employed on such work, a shed over a sufficient portion of the tracks used for such work, so as to provide that all men regularly employed in such work are sheltered and protected from rain and other inclement weather.
'(2) This section does not apply at points where less than five men are regularly employed in such work, nor at points where it is necessary to make light repairs only on equipment or motive power, nor to equipment loaded with time or perishable freight, nor to equipment when trains are being held for the movement of equipment. As used in this subsection, 'light repairs' does not include repairs usually made in roundhouse, shop or shed upon well-equipped railroads.' (Italics ours.)
Plaintiff is a Delaware corporation authorized to do business and doing business as a railroad corporation within the state of Oregon. It operates a well-equipped railroad, conducting a part of its operations at Salem, in Marion county, Oregon. In connection with its business at Salem, plaintiff employs workmen who, in the capacities of lead machinist, machinist, machinist's helper and electrician, perform certain types of repair work on locomotives. An average of nine locomotives work in and out of the Salem yards. When the suit was commenced, some of those locomotives were steam powered, but as of January 23, 1955, all steam locomotives were removed from service, and all rolling stock of plaintiff on the entire Portland division (extending from Portland in a southeasterly direction to Crescent Lake and southerly to Ashland) is now moved by diesel power. That includes the locomotives working in and out of the Salem yard.
Plaintiff maintains no roundhouse at Salem. A substantial part of the repair work on locomotives at that place is done in the open, except that part of the work is done in locomotive cabs or in pits under locomotives, and except further that adjoining the tracks on which work is performed there are shelter sheds in which are located and stored certain mechanical tools and in which some items of work are performed. All tools used by locomotive repairmen in the open are in the category of hand tools. More than five men are regularly employed in the Salem yard.
The greater portion of the open yard work performed by plaintiff's employes at Salem consists of servicing operations on locomotives, a type of work to which the above statute has no application. The remaining portion of the work at said place consists of minimum repairs made to keep locomotives in operating condition and in compliance with the regulations of the Interstate Commerce Commission, in the making of which repairs only portable hand tools are used and only short and intermittent periods of work are involved.
Prior to trial the parties entered into a written stipulation in which are set forth 24 different items of repair work and inspecition performed at the Salem yard. It would unnecessarily extend this opinion to quote the stipulation as a part hereof. It is a matter of record in the case.
Plaintiff maintains complete roundhouse and shop facilities at its Brooklyn yard in Portland, and in Eugene. Those places are fully equipped to perform all major repairs on locomotives; in fact, they are equipped to take a locomotive fully apart and put it together again. However, many of the repairs to locomotives such as are performed in the Salem yard are often performed in the open at the Brooklyn and Eugene yards, although they are also performed under cover in connection with major repairs.
Plaintiff called as witnesses three expert railroad men who testified that all the repairs mentioned in the stipulation were deemed 'light repairs' within railroad parlance. Defendant called one witness, an expert employed at the Brooklyn yard, who testified that the several repairs mentioned in the stipulation were what he called 'running repairs,' and that they were at times performed under cover at the Brooklyn yard, although at other times they were performed in the open. He admitted that 'running repairs' and 'light repairs' meant the same thing.
Mr. C. P. Davis, now retired, but formerly roundhouse foreman at the Salem yard, defined what is meant by the term 'light repairs.' He testified on direct examination as follows:
Mr. W. O. Brown, master mechanic of the Portland division of the plaintiff railroad company, testified as follows:
'Q. Are you familiar with the term used in railroad language of 'light repairs'? A. Yes, sir.
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