United States v. Chicago, St. P., M. & O. Ry. Co.

Decision Date18 August 1930
Docket NumberNo. 8843.,8843.
Citation71 ALR 507,43 F.2d 300
PartiesUNITED STATES v. CHICAGO, ST. P., M. & O. RY. CO.
CourtU.S. Court of Appeals — Eighth Circuit

Lewis L. Drill, U. S. Atty., of St. Paul, Minn., and Monroe C. List, Sp. Asst. to U. S. Atty., of Washington, D. C.

R. N. Van Doren and Nelson J. Wilcox, both of Chicago, Ill., and William T. Faricy, of St. Paul, Minn., for appellee.

Before KENYON, BOOTH, and GARDNER, Circuit Judges.

GARDNER, Circuit Judge.

This action was brought to recover a penalty prescribed by the Safety Appliance Acts as extended by the Interstate Commerce Commission's order of June 6, 1910. Judgment was in favor of the defendant, and the government has appealed. The facts were stipulated and are substantially as follows: On October 18, 1928, the railway company, an interstate carrier, was operating over its line in St. Paul, Minn., in an easterly direction for a distance of two miles, a certain passenger train consisting of a locomotive engine and tender, eleven passenger cars, and a pusher locomotive engine with its tender attached. All of the cars, locomotives, and tenders were equipped with power brakes, more than 85 per cent. of which were operated by the engineer of the head engine. A sufficient number of the cars in the train were so equipped with power brakes that the engineer of the locomotive drawing the train could and did control its speed without requiring brakemen to use the common hand brake for that purpose. The pusher engine and its attached tender were coupled to the rear end of the train and did not have their power brakes used and operated by the engineer of the head engine. Had they been so coupled up, they could have been controlled by the engineer of the head engine, and in case of emergency the engineer of the pusher engine could have applied the emergency brake and stopped the train. The grade from St. Paul upon which the train was proceeding ranged from 1.25 to 2 per cent. At the end of the two miles, the pusher engine and its attached tender was uncoupled while the train was in motion by a switchman operating the uncoupling lever. This method of operating had been used by the defendant for more than fifteen years and by the United States Railroad Administration when the railroad was being operated by the government. The same practice has been followed by other railroads in various parts of the country. During the past fifteen years no accidents have resulted on any railroad in or about St. Paul from the practice in question. The speed of the train in question was not in excess of twenty miles per hour. At other points on its railroad the defendant carries out the same practice, under similar circumstances, to wit, at Knapp, Wis. and at Hudson, Wis. In order to have had the power brakes of the pusher engine used and operated by the head engineer, it would have been necessary for the air hose between the last car and the pusher engine to be connected and the angle cock on each hose to be opened by hand by men going between the cars for that purpose, which would be done while the train was standing at the Union Depot at St. Paul. In order to uncouple the pusher engine and attached tender from the rest of the train while in motion, it would have been necessary first for the angle cocks to be closed and the air hose to be disconnected by hand, which would require a man to go between the last car and the pusher engine while in motion, while the operation of the pusher engine and attached tender, as actually done in the instant case, did not require the presence of a man between the rear car and the pusher engine, as the pusher engine was uncoupled from the rear of the train by a switchman standing on the footboard and operating the uncoupling lever from the side of the engine. The presence of a man between the pusher engine and the last car, in order to close the angle cocks and disconnect the air hose while the train was in motion, would have resulted in some risk to the employee. The alternative to such a practice, had the power brakes on the pusher engine been connected up with the rest of the train, would have been the stopping of the train for the purpose of closing the angle cocks and disconnecting the air hose while the train was standing. Such stopping, where the pusher engine was actually uncoupled in the instant operation, would have left the train standing on an ascending grade too steep for the head engine with the eleven cars to negotiate from stop position without the assistance of the pusher engine, and, therefore, in order to reach a stopping place where the train could have started again without the aid of the pusher engine, it would have been necessary for the train to have proceeded an additional distance of four miles with the aid of its pusher engine. After a stop, and for the purpose of turning the angle cocks and disconnecting the air hose, additional time would be consumed for the train again to get up speed, all of which would consume several minutes, whereas the method of uncoupling the pusher engine from the rear car in the instant case was done without slowing up the train.

The pertinent provisions of the acts of Congress and order of the Interstate Commerce Commission are as follows:

"It shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving-wheel brake and appliances for operating the train-brake system, or to run any train in such traffic that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose." Section 1, c. 196, Act March 2, 1893 (45 USCA § 1).

Also:

"Whenever * * * any train is operated with power or train brakes not less than 50 per centum of the cars in such train shall have their brakes used and operated by the engineer of the locomotive drawing such train; and all power-braked cars in such train which are associated together with said 50 per centum shall have their brakes so used and operated." Section 2, c. 976, Act March 2, 1903 (45 USCA § 9).

Pursuant to authority conferred upon it by a provision of this last quoted section of the act of 1903, the Interstate Commerce Commission on June 6, 1910, promulgated an order reading as follows:

"That on and after September 1, 1910, on all railroads used in interstate commerce, whenever, as required by the Safety Appliance Act as amended March 2, 1903, any train is operated with power or train brakes, not less than 85 per cent of the cars of such train shall have their brakes used and operated by the engineer of the locomotive drawing such train, and all power-brake cars in every such train which are associated together with the 85 per cent shall have their brakes so used and operated."

The lower court held that the pusher engine with its attached tender was not a car within the meaning of the above quoted statutes and order, and that the pusher engine with its attached tender was not an associated unit of equipment with the cars and engine to which it was attached. This appeal, therefore, presents two questions: (1) Was the pusher engine and its tender, a car within the air brake provisions of the Safety Appliance Act, and (2) was the pusher engine and its tender, associated together with the 85 per cent. of the cars of the train which had their brakes used and operated by the engineer of the locomotive drawing the train? If either one of these questions be decided in the negative, then the judgment of the lower court must be sustained; but if both of these questions are decided in the affirmative, then the judgment of the lower court must be reversed. These acts of Congress and orders of the Commission should be liberally construed for the purpose of relieving trainmen of the danger in the use of hand brakes, and to control the safety of trains and of persons and property being transported in interstate commerce. New York Central R. R. Co. v. United States, 265 U. S. 41, 44 S. Ct. 436, 68 L. Ed. 892; Johnson v. Southern Pacific Co., 196 U. S. 1, 25 S. Ct. 158, 49 L. Ed. 363. The national courts have uniformly held that the provisions of these Safety Appliance Acts are mandatory and impose an absolute duty upon the carrier. St. L., I. M. & S. v. Taylor, 210 U. S. 281, 28 S. Ct. 616, 52 L. Ed. 1061; C., B. & Q. Ry. Co. v. United States, 220 U. S. 559, 31 S. Ct. 612, 55 L. Ed. 582; United States v. A., T. & S. F. Ry. Co. (C. C. A.) 163 F. 517. If, therefore, the statute is applicable to the equipment and train movement involved in this action, any question of utility or convenience must be put aside.

It is the contention of the government that under the doctrine announced by the Supreme Court in Johnson v. Southern Pacific Co., supra, the pusher engine and its attached tender constituted a car within the provisions of the above quoted acts and order. In that case the appliance involved was an automatic coupler, and the court held that locomotives were required to be equipped with such couplers, even though the act did not use the word "locomotive," but used the words "any car." From this it is argued that a locomotive and a car are the same for all purposes of the Safety Appliance Acts. It is to be observed that the Safety Appliance Act in question makes separate provisions for brakes in regard to locomotives and in regard to cars. As to locomotives it provides that:

"It shall be unlawful for any common carrier * * * to use on its line any locomotive engine * * * not equipped with a power driving-wheel brake and appliances for operating the train-brake system."

As to cars, it provides that it shall be unlawful "to run any train in such traffic that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the...

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