United States v. Carbon County Railway Company

• Decision Date: 29 November 1961
• Docket Number: No. C-97-61.,C-97-61.
• Citation: 199 F. Supp. 726
• Parties: UNITED STATES of America, Plaintiff, v. CARBON COUNTY RAILWAY COMPANY, Defendant.
• Court: U.S. District Court — District of Utah

199 F. Supp. 726

UNITED STATES of America, Plaintiff, v. CARBON COUNTY RAILWAY COMPANY, Defendant.

No. C-97-61.

United States District Court D. Utah, Central Division.

November 29, 1961.

Wm. T. Thurman, U. S. Atty., Salt Lake City, Utah, for plaintiff.

Richard C. Davis, Washington, D. C., for Interstate Commerce Commission.

Keith E. Taylor, Salt Lake City, Utah, Parsons, Behle, Evans & Moffat, Salt Lake City, Utah, for defendant.

CHRISTENSON, District Judge.

This is an action by the United States of America for statutory penalties for the alleged failure of the defendant, Carbon County Railway Company, to make brake tests required by Sections 1 to 16 inclusive of Title 45 United States Code Annotated (particularly Sections 6 and 9 thereof as amended), and Section 132.13 (e) (1), Title 49, Code of Federal Regulations. Jurisdiction of the Court is invoked under Section 1345, Title 28 United States Code, and is not disputed.

Plaintiff claims that on January 18, 1961, the defendant railroad operated a transfer train consisting of sixty-seven (67) cars over its line of railroad from Columbia Junction, Utah, when the power brakes on each car had not been tested as required by law. In a second claim the plaintiff asserts a similar failure occurred on the same day with reference to a transfer train consisting of forty-seven (47) cars operated over its line from Horse Canyon Mine.

Defendant says that its railroad is operated wholly as a switching railroad and hence is not subject to the requirement relied upon by the Government; that the car movements of which complaint is made, constituted mere switching movements exempted from the brake test provisions; that in making the movements in question defendant did in fact comply with the test requirements as properly interpreted, assuming arguendo that these provisions were applicable, and that if the meaning and interpretation to be accorded Section 132.13(e) (1) of the Code is to require the visual inspection of the brakes of each car as contended by the Government, this requirement as applied to the operations in question would be arbitrary, unreasonable, bearing no relation to the end sought, and therefore unconstitutional.

Section 132.13(e) (1) of Code of Federal Regulations reads as follows:

"Transfer train and yard train movements not exceeding 20 miles, must have the air brake hose coupled between all cars, and after the brake system is charged to not less than 60 pounds, a 15 pound service brake pipe reduction must be made to determine that the brakes are applied on each car before releasing and proceeding."

The defendant railway company is a wholly owned subsidiary of United States Steel Corporation, and it is the owner of a railroad 11.03 miles in length. The function of the defendant railroad is to assemble and move coal shipments from the mines of the United States Steel Corporation to an interchange or switching yard at Columbia Junction, which is owned by the Denver and Rio Grande Western Railroad Company and the defendant, and the switching, return and distribution of empty cars delivered by the Denver and Rio Grande Western at the interchange.

The defendant also assembles and moves coal shipments in cars other than its own from the Book Cliff Mines to the interchange yard. The movement of Book Cliffs coal represents approximately four percent of all movements over the defendant's line, approximately all of which portion is moved in interstate commerce.

The line traverses over negligible grades a desert country uninhabited except for the town of Columbia, the population of which is approximately four hundred, and three coal mines where a total of approximately one thousand men are employed. It crosses a public highway, which serves the town of Columbia, this crossing being protected by both bell and flashing signals, and one private right of way to the coal mine at Columbia, which latter crossing is protected by stop signs standard in the State of Utah. Curves on the line vary from a maximum of twelve degrees to zero. The operation is subject to no substantial physical hazards such as falling rocks or landslides.

A typical days operation is this: defendant's crew reports for work at nine a. m., attaches two engines and a caboose against empty cars at Columbia Yard and pushes them to Columbia Mine, a distance of two miles. After putting the cars on empty tracks at Columbia Mine, the defendant's crew picks up loaded cars there, moves two miles to Columbia Yard, proceeds hence with engines and caboose three miles to Columbia Junction to pick up empty coal cars on which brakes already have been set by the Denver and Rio Grande Western when the cars were set out. The cars set out at Columbia Yard and thirty or forty additional cars are picked up in a block for Horse Canyon and Book Cliffs Mine eight miles distant, loads are picked up at these points, moved eight miles to Columbia Yard and assembled with Columbia Mine loads previously set out and retainers set and moved three miles to Columbia Junction. In the meantime, the Denver and Rio Grande Western Railroad has set out more empty cars with brakes applied so the defendant moves the cars three miles to Columbia Yard where, if additional cars are required for Horse Canyon Mine, the defendant picks up such additional cars in Columbia Yard, moves the empty cars eight miles to Horse Canyon, picks up loads of coal there, stops in seven miles at Columbia Mine and picks up loads, moves two miles to Columbia Yard, stops and sets up retainers and proceeds three miles to Columbia Junction, returning to Columbia Yard with caboose to tie up.

A jury was impaneled to try the questions of fact thought to be involved in this case. At the close of the evidence I ruled as a matter of law that the two movements in question, one with a train of sixty-seven cars from Columbia Junction, and the other with one of forty-seven cars from Horse Canyon Mine, were train movements within the meaning of the regulation and the statute, and not merely switching operations. It was believed that the evidence in the case indicated no substantial difference from the situation before this Court in a case involving the same parties during the preceding year (C-160-59, United States of America v. Carbon County Railway Company) and that my unpublished memorandum decision in that case dated April 22, 1960, noted some of the controlling points and authorities. It was then said:

"After carefully considering the rather difficult question involved, I am of the view that the plaintiff must prevail. I do not believe that the defendant's operation, viewed in its entirety, or on a basis of the particular hauls directly involved here, can be considered no more than a switching operation, even though both before and after the hauls in question switching operations were carried on; nor do I think that its entire system could be regarded merely as a yard within which only switching operations could be conducted.

"The collection of cars referred to in the respective counts appear to have been transfer trains (United States v. Northern Pac. Ry. Co., 254 U.S. 251, 41 S.Ct. 101, 65 L.Ed. 249). Train movements by a carrier engaged in Interstate Commerce were involved within the contemplation of the statute. In connection with such movements a fifteen pound service brake pipe reduction was not made by defendant after the makeup of the respective trains to determine that the brakes were applied on each car before releasing and proceeding as required by Section 132.13(e) (1), Title 49, Code of Federal Regulations. Notwithstanding the respective contentions as to what actually was required in making such determination (whether by car by car check or otherwise — and I am not passing upon this point), it seems clear that in any view there was not substantial compliance with the reduction requirement if it be assumed that train movements were involved. If there could be train movements within the defendant's system, the two referred to in the complaint would be such movements. I think they were train movements.

"There being train movements involved, the degree of risk, the extra trouble that might be occasioned by the test, or other precautions equally as helpful which the defendant may have taken, do not preclude the application of the statute and the regulations. I regard United States v. Seaboard Air Line Railroad Company, 361 U.S. 78, 80 S.Ct. 124, 4 L.Ed.2d 25, controlling here, especially in view of the decision of the lower court which it reversed, 4 Cir., 258 F.2d 262. Equally or more convincing is the decision of the Seventh Circuit in United States v. Terminal Railroad Ass'n of St. Louis, 260 F.2d 884, following most of the reasoning of defendant here, but reversed without opinion by the Supreme Court in 361 U.S. 116, 80 S.Ct. 204, 4 L.Ed.2d 154. In the Terminal case actual hazards and the scope of the movements appear minimal. The lower court relied, among other cases, upon United States v. Elgin, J. & E. Ry. Co., 7 Cir., 182 F.2d 1; United States v. Chicago, Burlington & Quincy R. Co., 7 Cir., 199 F.2d 223 and various other cases cited by the defendant here. The Supreme Court's decision cannot be reconciled with defendant's interpretation of these cases, nor with the theory that in the case before me the defendant's entire operation is a switching movement and within its system there are no train movements and hence that the company is immune from application to it of the regulation under all circumstances."

A penalty was assessed in the 1960 case by reason of the defendant's failure to make the fifteen pound service brake pipe reduction required by Section 132.13(e) (1) Title 49 Code of Federal Regulations, supra. There was not reached in that case the further question, directly involved here, whether there was required in connection with this reduction a visual inspection of the train to determine whether the brakes applied on each car. In ...