United States v. South Buffalo Ry. Co.

• Decision Date: 17 April 1947
• Docket Number: Civ. No. 2095.
• Citation: 71 F. Supp. 461
• Parties: UNITED STATES v. SOUTH BUFFALO RY. CO.
• Court: U.S. District Court — Western District of New York

71 F. Supp. 461

UNITED STATES v. SOUTH BUFFALO RY. CO.

Civ. No. 2095.

District Court, W. D. New York.

April 17, 1947.

George L. Grobe, U. S. Atty., and R. Norman Kirchgraber, Asst. U. S. Atty., both of Buffalo, N. Y., and Henry J. Vinskey, Sp. Asst. to U. S. Atty., of Washington, D. C., for plaintiff.

Kenefick, Cooke, Mitchell, Bass & Letchworth, of Buffalo, N. Y. (Gravath, Swaine & Moore, Bruce Bromley and Frank M. McGarry, all of New York City, of counsel), for defendant.

KNIGHT, District Judge.

This is a civil action brought to collect a penalty for violating the Safety Appliance Act, Title 45 U.S.C.A. §§ 1 to 16, and an order of the Interstate Commerce Commission, issued pursuant thereto, dated June 6, 1910. The original complaint was based on 10 causes of action. Eight of them were based on defective safety appliances, other than air brakes, while the remaining two are based on the allegations of violations in respect to the equipment and operation of trains without the required per cent of cars operated by brakes by the engineer drawing the train.

The pertinent sections of said Title 45 are 1, 6 and 9. Section 9 is entitled "Number of cars to be operated with power or train brakes; increase of number." It provides in part that when "any train is operated with power or train brakes not less than 50 per centum of the cars * * * 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; * * *." This section authorizes the Interstate Commerce Commission "after full hearing" to "increase the minimum percentage of cars in any train required to be operated with power or train brakes which must have their brakes used and operated as aforesaid; * * *." It also provides that failure to comply with the requirement of the Interstate Commerce Commission shall subject the offender to the penalty fixed by the Act.

Pursuant to such authority, on June 6, 1910, the Interstate Commerce Commission issued an order, effective as of September 1, 1910, providing, among other things, that "* * * whenever, * * * 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 determinative question in applying the Act in the instant case is whether defendant's operations were "switching movements" or "train movements." The word "train" in the Act and the said Order refers to "train" movement, and it is distinguished, as hereinafter shown, from what is commonly known as a "switching" movement.

A recent opinion of this court, United States v. South Buffalo Railway Co. et al., D.C., 69 F.Supp. 456, contains a description of the South Buffalo Railroad system, which it does not seem necessary to repeat. Suffice it to say that the system comprises an area about six miles long and three miles wide, and contains many switches serving numerous industrial plants, and particularly the Bethlehem Steel Company. These switches ultimately also connect with a lead track by which connection is made between these plants, a number of long haul railroads and tracks of defendant's yards.

The third cause of action relates to the movement by the defendant in the afternoon of December 4, 1944, of a cut of cars consisting of 15 freight cars drawn by its yard engine from a point opposite the Buffalo Sintering Corporation buildings, at Buffalo, N. Y., to the yard near the Bethlehem Steel Company's plant at Lackawanna, a distance of about two miles. It is not denied that only the first 10 cars, or less than 85% of the total 15, had their air brakes used and operated by the locomotive engineer. No cars were picked up or set out en route.

The sixth cause of action involves an operation in the afternoon of December 5, 1944, of another cut of cars also consisting of 15 freight cars and drawn by a yard engine in direction reverse from that described in the third cause of action, i. e., from opposite the police guard building at Lackawanna to defendant's Marilla Street yard opposite the Buffalo Sintering plant. It is not denied that none of these cars had their air brakes used and operated by the engineer; that no cars were picked up or set out in the movement, and in the movement defendant passed over one private highway crossing at grade.

In both instances the cars were assembled at one point in defendant's yard and removed intact to another point in the yard over a single track line connecting these points. It seems to be undenied that the defendant's whole system includes only a single yard.

The undisputed facts are that switching cars is the sole business of the defendant; its trains are used only in switching service; its entire equipment, with possible exception of a few cars, is suitable only for use in switching service; no public streets, highways or tracks of other railroads are crossed at grade in any of the movements complained of herein, except one private industrial crossing owned by the Bethlehem Steel Company and restricted in its use to the latter's employees and others to whom permission is given by such Company to pass into the Company's property; these movements on the track are effected by switching engines; they are under the supervision and control of the yard master and crews; the movements are not made under train order or time table schedules; there is no block system; the movements are made at slow speed during which a member of the crew is stationed at the forward end of the locomotive in order to watch the track ahead.

The applicable provisions of the Safety Appliance Act impose an absolute duty. Admittedly it does not apply to the aforesaid two charges, unless the trains were engaged in a "train movement." The plaintiff has cited numerous decisions of the Supreme and other courts. Each one of these is distinguishable on its facts from the instant suit. Safety of operation is the intent of the Act. It never was contemplated that the railroads should be compelled to provide and use operational facilities such as those claimed to be lacking here to insure safety of individuals in strictly switching operations. Hazard is what Congress sought to lessen. It was not intended to burden railroads with some operational acts wholly unnecessary. It is not necessary to quote pertinent language from all of the plaintiff's cited authorities. All disclose generally similar operations with each other. The forerunner of these Supreme Court cases is: United States v. Erie R. Co., 237 U.S. 402, 35 S.Ct. 621, 624, 59 L.Ed. 1019. There the connecting tracks were the main tracks over which freight moved from and to points around...