United States v. Fort Worth & Denver City Ry. Co.

• Decision Date: 14 July 1937
• Docket Number: No. 848.,848.
• Citation: 21 F. Supp. 916
• Parties: UNITED STATES v. FORT WORTH & DENVER CITY RY. CO.
• Court: U.S. District Court — Northern District of Texas

21 F. Supp. 916

UNITED STATES v. FORT WORTH & DENVER CITY RY. CO.

No. 848.

District Court, N. D. Texas, Amarillo Division.

July 14, 1937.

Clyde O. Eastus, U. S. Atty., and Frank B. Potter, Asst. U. S. Atty., of Fort Worth, Tex., and M. C. List, Atty. for the Interstate Commerce Commission, Bureau of Safety, of Washington, D. C., for the United States.

Thompson & Barwise, of Fort Worth, Tex., and Morgan, Culton, Morgan & Britain, of Amarillo, Tex., for defendant.

JAMES C. WILSON, District Judge.

This is an action to recover a penalty brought under the Safety Appliance Act in which the government alleged that the defendant, which was engaged in interstate commerce, operated over its railroad, a highway of interstate commerce, a locomotive engine designated as a Browning steam locomotive crane, which was not equipped with a power driving wheel brake.

The parties waived a jury, and agreed that the cause be submitted to the court upon an agreed statement of facts. From the agreed statement it appears that the defendant operated a line of railroad extending from Pampa, Tex., to Childress, Tex., and that in operating this line it was engaged in interstate commerce. On the date the alleged violation of the Safety Appliance Act occurred the defendant was engaged in construction work upon this line of railroad at a point three-fourths of a mile north of Meldavis on such line and at another point about two and one-half miles from Meldavis. In conveying the materials needed in this construction work from the switch at Meldavis to the construction work a locomotive crane had attached to it a car used for carrying fuel and water needed in the operation of the crane and two flat cars loaded with heavy boulders, which it moved from the switch at Meldavis to the construction work. The crane would then unload the heavy boulders from the flat cars at the point where they were needed in the construction work, return the flat cars to the switch at Meldavis, pick up other cars loaded with boulders, and move them to the construction work.

The locomotive crane consisted of the arm of the crane, cables, and pulleys and a cab which contained the steam engine and appliances for controlling the equipment, all mounted on a short flat car at the ends of which were couplers. It was propelled by power furnished by the steam engine, and was not equipped with a power driving wheel brake.

The defendant is charged with violating section 1 of the Safety Appliance Act; section 1 of title 45 of the U.S.Code, 45 U.S. C.A. § 1, which reads: "Section 1. Driving-wheel brakes and appliances for operating train-brake system. 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." As amended by section 8 of title 45 of the U.S. Code, 45 U.S.C.A. § 8, which reads: "§ 8. Provisions of chapter extended. * * * And the provisions and requirements relating to train brakes, automatic couplers, grab irons, and the height of drawbars shall be held to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce."

The defendant contends that under the facts it is not guilty of violating the provisions of the Safety Appliance Act because the locomotive crane is not a locomotive within the meaning of the act; because section 8 of title 45 of the U.S.Code, 45 U.S.C. A. § 8, does not by the use of the term "train brakes" include "power driving wheel brakes," so that the Safety Appliance Act does not require that a locomotive not used in "moving interstate traffic" be equipped with power driving wheel brakes, and the equipment in question here was not used in "moving interstate traffic"; because the operations in question were not train movements, and therefore the provisions of the Safety Appliance Act relating to power driving wheel brakes do not apply.

I believe these are the only questions presented by this record, and, if the defendant is correct in any one of them, it should have judgment in its favor.

In speaking of the Safety Appliance Act, the United States Supreme Court in New York Central Railroad Company v. United States, 265 U.S. 41, 44 S.Ct. 436, 437, 68 L. Ed. 892, speaking through Justice Butler, said: "The acts of Congress and orders of the Commission above referred to should be liberally construed, to relieve trainmen of the labor and danger involved in the use of hand brakes to control the speed of trains, and to promote the safety of trains and of persons and property thereon."

Jarvis v. Hitch, 161 Ind. 217, 67 N.E. 1057, 1060, and Lake Shore & M. S. R. Co. v. Benson, 85 Ohio St. 215, 97 N.E. 417, 419, 41 L.R.A.,N.S., 49, Ann.Cas.1913A, 945, cited by both sides, are not in point, but the cases do furnish a definition of "locomotive" which I think is correct.

In Jarvis v. Hitch, supra, the Supreme Court of Indiana, in determining whether a pile driver mounted upon a flat car, which was self-propelling, was a locomotive under the statutes of Indiana, said: "By the term `locomotive engine' used in said clause, the Legislature only intended an engine constructed and used for traction purposes on a railroad track." The court based this definition upon an English case, Murphy v. Wilson, 48 Law Times, N.S., 788, 52 Law Journal Q. B. D. 524, 525, from which the court quoted, saying: "the alleged `locomotive engine' was a `machine consisting of a crane and a steam engine working it, both being mounted on the same truck and forming one machine, and so constructed that the engine served the double purpose of moving the machine from place to place and of raising stone by means of the crane.' * * * `This machine was a steam crane, so fixed on a trolley that, by means of shifting gear working on the axles of the trolley, the crane and trolley could be moved from one place to another along rails which in the present case were only temporary. * * * Now the term "locomotive engine" has a well-known significance, and is used generally for an engine to draw a train of trucks or cars along a permanent or temporary set of rails. * * * The machine in this case is intended to lift heavy weights of stone and other materials used in constructing a railway, having, besides, an incidental power of applying its steam force to the trolley'" and it was therefore held not to be a locomotive.

In Lake Shore & M. S. R. Co. v. Benson, supra, the question...