United States v. Thompson

• Decision Date: 29 January 1958
• Docket Number: No. 15798.,15798.
• Citation: 252 F.2d 6
• Parties: UNITED STATES of America, Appellant, v. Guy A. THOMPSON, Trustee, Missouri Pacific Railroad Company, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

252 F.2d 6 (1958)

UNITED STATES of America, Appellant, v. Guy A. THOMPSON, Trustee, Missouri Pacific Railroad Company, Appellee.

No. 15798.

United States Court of Appeals Eighth Circuit.

January 29, 1958.

Leo Meltzer, Attorney, Department of Justice, Washington, D. C. (Warren Olney III, Asst. Atty. Gen., Osro Cobb, U. S. Atty., James W. Gallman, Asst. U. S. Atty., Little Rock, Ark., and Floyd R. Benny, Attorney, Interstate Commerce Commission, Washington, D. C., were with him on the brief), for appellant.

R. Ben Allen, Little Rock, Ark. (Pat Mehaffy, Little Rock, Ark., was with him on the brief), for appellee.

Before SANBORN, WOODROUGH and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

This action was brought by the United States to recover statutory penalties for alleged violations of the Safety Appliance Acts, 45 U.S.C.A. §§ 1-16. Jurisdiction is based on 45 U.S.C.A. § 6. The complaint contained seven causes of action. Issues were joined and the case was tried to a jury, which returned a verdict in favor of the defendant (appellee) on each cause of action. Judgment was entered on the verdict. The Government has appealed from the judgment as to the Sixth and Seventh causes of action only, upon the grounds that the District Court erred in denying the Government's motion for a directed verdict in its favor and its motion, after verdict, for judgment notwithstanding, upon those two causes of action.

The Sixth cause of action stated in the complaint is that on March 26, 1955, the defendant operated over its tracks a train consisting of nineteen cars drawn by a diesel locomotive "from Track No. 7, Hold Yard, to Tie Plant, in and about North Little Rock, Arkansas, * * * when none of the cars * * * had their brakes used and operated by the engineer of the locomotive drawing said train," contrary to 45 U.S.C.A. § 9 and the order of the Interstate Commerce Commission of June 6, 1910, 49 C.F.R. 132.1, requiring that when a "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 * * *."

The Seventh cause of action is the same as the Sixth, except that it refers to a train of twenty-five cars operated from "Lead Track, Tie Plant, to Locust Street Yard, in and about North Little Rock, Arkansas."

There was no dispute as to the car movements of March 26, 1955, having been made substantially as alleged in the complaint "while the power brakes were in use on the locomotive only."¹ The question was whether the movements were train movements or switching operations.

The record shows that the switching limits of the Missouri Pacific Railroad at North Little Rock include the areas known as the Hold Yard, the Locust Street Yard, and the Tie Plant; that switching limits are set up by agreement with the Railroad Union; that officers of the Railroad can set up yard limits, but not switching limits which constitute the area within which switching operations are conducted by switch crews; that the distance between the Tie Plant and the north end of the Locust Street Yard is a mile and a quarter; that from that end of the Locust Street Yard to its south end is 8,000 feet; that from the south end of that yard to the north end of the Hold Yard is around 2,200 feet, a half mile; that within this area train movements are controlled by electric signals; that in thirty-five years there has never been an accident in the area as a result of switching operations; that between the Hold Yard and the Tie Plant there are two private crossings, which "are gated and kept locked"; that switch movements to the Tie Plant are not scheduled; that the service is usually performed by the same switch engine on duty; that a number of switch engines operate within the area, and also road crews on engines doing road work, and yard crews within the switching limits doing switching work.

With respect to the movements in suit, the record shows that on March 26, 1955, a diesel locomotive of the switch-engine type, with nineteen cars attached, was in the defendant's Hold Yard; that all the cars had power brakes, but that the air was not coupled between the locomotive and any of the cars; that when the locomotive and cars left Track 7 they followed "Old Lead Track to the Valley `Y' Wye Connection," and then went onto the east or main track of the Missouri Pacific for 1.21 miles until they reached the Tie Plant, a total distance of 2.92 miles; that the movement did not exceed in speed fifteen miles an hour for the entire distance; that there was no stopping and setting out of a car or cars or taking on a car between the Hold Yard and the Tie Plant, and that the order in which the cars were assembled was not changed in any way; that the locomotive was stopped "clear of the track that goes into the Tie Plant"; that the locomotive was cut off, "reached into a lead track," and "got 25 loaded cars already lined up and together"; that the locomotive picked up the 19 cars on the main track, shoved all the cars onto the lead track of the Tie Yard,...