Weinberg v. Northern Pac. Ry. Co.

• Citation: 150 F.2d 645
• Decision Date: 19 July 1945
• Docket Number: No. 12872.,12872.
• Parties: WEINBERG et al. v. NORTHERN PAC. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

150 F.2d 645 (1945)

WEINBERG et al. v. NORTHERN PAC. RY. CO.

No. 12872.

Circuit Court of Appeals, Eighth Circuit.

July 19, 1945.

Albert R. Scanlon, of Los Angeles, Cal. (A. G. McKnight and Harry E. Weinberg, both of Duluth, Minn., on the brif), for appellants.

Donald D. Harries, of Duluth, Minn. (L. B. daPonte, M. L. Countryman, Jr., and F. J. Gehan, all of St. Paul, Minn., and Gillette, Nye, Harries & Montague, of Duluth, Minn., on the brief), for appellee.

Before GARDNER, JOHNSEN, and RIDDICK, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from a decree which permanently enjoined appellants, defendants below, from enforcing a certain ordinance passed by the City of Duluth, insofar as such ordinance prohibits the use of a certain General Electric 44-ton Diesel electric engine in performing certain switching movements in the switching yards of appellee in the said city, unless the engine be manned with a crew of not less than one qualified engineer or operator and one qualified fireman or helper. Defendants, who are here appellants, are officers of the City of Duluth, Minnesota, while the plaintiff is a railway company organized under the laws of the State of Wisconsin, owning and operating a system of railroads extending from a point on Lake Superior, in Wisconsin, into and through the State of Minnesota, with lines from St. Paul, Minnesota, to Duluth, Minnesota, and through and into the State of North Dakota and other states, and is a common carrier by railroad of interstate and intrastate commerce. The parties will be referred to as they were designated in the lower court.

Ordinance No. 6617 of the City of Duluth, the enforcement of which was enjoined as to certain area, was passed January 25, 1943, after the plaintiff had purchased a 44-ton Diesel electric engine. The ordinance defines a locomotive as "any and all railway engines, however propelled, when in use in the switching or transferring of railway cars upon railroad tracks within the corporate limits of the City of Duluth." Section 2 of the ordinance reads as follows:

"That to promote and protect the safety and welfare of employes operating locomotives on railroad tracks within the corporate limits of the City of Duluth, and to protect and promote public safety within the corporate limits of the City of Duluth where railroad tracks cross streets or avenues at grade, it shall be unlawful for any person to operate any locomotive, or cause or permit the same to be operated, upon any railroad tracks within the corporate limits of the City of Duluth, unless each such locomotive shall be then manned with a crew of not less than one qualified engineer or operator and one qualified fireman or helper."

Section 3 provides punishment for violation by fine not exceeding One Hundred Dollars, or by imprisonment not exceeding eighty-five days. Section 4 provides that each day any locomotive is operated in violation of the provisions of the ordinance shall be deemed a separate offense.

The complaint alleges that the ordinance is arbitrary, unreasonable and void; that the 44-ton Diesel engine may be operated safely by one man in both yard and road service and over roads and streets; that the Diesel engine was purchased for use and would be used only within the terminal at Duluth; that five or six times daily it will cross Twenty-first Avenue West with several passenger cars for the purpose of turning the same on the wye; that said Twenty-first Avenue is but little used by the public.

Admitting diversity of citizenship and other jurisdictional allegations, defendants by their answer put in issue the material allegations of plaintiff's complaint.

The trial court, responding to the issues joined by the pleadings, made findings of fact. Findings numbered VI to XIV, inclusive, read as follows:

"VI. The area within which the plaintiff seeks to restrain enforcement of the ordinance is limited to the Duluth Union Depot switch yards, extending from the Depot sheds west of Fifth Avenue West in the City of Duluth, westward to the turning wye situated south of the southerly or lakeward end of the traveled portion of Twentieth Avenue West therein, and such additional distance west of Twentieth Avenue West as may be necessary to take the rear ends of trains beyond the westerly leg of said wye in order to permit trains to take or clear the switch to the wye in executing the turning about of trains.

"Such area is confined to the private right-of-way and property of the plaintiff Company and its wholly owned subsidiary, Duluth Union Depot & Transfer Company, except where the movement of trains takes them across a public crossing in said City of Duluth designated as Twenty-first Avenue West, at a point thereon approximately fifty (50) feet from the terminus of said Avenue on certain private property.

"The general nature of the operations which the plaintiff seeks by this action to pursue free from the restraint of said ordinance consists of the transfer of passenger cars from the Duluth Union Depot to the turning wye described above, the turning of trains or cars upon said wye, the movement of passenger cars to the coach yards immediately west of the Duluth Union Depot tracks, the transfer of cars from said coach yard to the passenger depot tracks, the making up of passenger trains in said depot, including the switching of express freight cars to be handled in such passenger trains, the handling and transfer of such railway cars as are strictly for the purpose of providing supplies and materials for use at the Duluth Union Depot, and such movements of the 44-ton Diesel electric locomotive employed in such operations as may be incidental to the foregoing, including travelling to and from the Northern Pacific's Roundhouse and machine shops located west of Garfield Avenue and South of Michigan Street in said city.

"VII. The use of the small Diesel engine with one operator in switching operations in yards where train traffic is dense has been general for some years on a number of other railroads, and the safety of operation thereof as experienced by such other railroads is fully sustained by the evidence.

"VIII. The switching operations which are carried on by the Duluth Union Depot & Transfer Company are relatively simple and free from any extra-hazardous conditions, and the yards at the place where these switching operations and movement take place are wide and spacious. The terrain is flat and the width of the yard is substantially three hundred feet.

"IX. The usual speed of the switching engine of the Duluth Union Depot & Transfer Company as it moves in the switching operations hereinbefore described is from ten to twelve miles per hour and does not exceed fifteen miles per hour.

"X. The cab of the Diesel engine purchased by plaintiff for use in the Duluth Union Depot operation is centrally located midway between the front and rear of the body of the engine, and the operator has an unrestricted 360 degrees view. By standing up the operator can see practically everything. When persons cross the tracks used in said switching operations, they are in full, unobstructed view of the operator or a switchman at all times.

"XI. The engine used in said switching operation is at all times under the direction and control of a switch crew, consisting of a foreman and two switchmen, in addition to the operator of the engine, and the Court finds as a fact that the switching operations of the Duluth Union Depot & Transfer Company can be safely made with this crew without the presence of a qualified fireman or helper.

"XII. The evidence proves that the presence of trespassers and licensees crossing plaintiff's tracks from time to time, presents no safety problem which requires a second man at all times to assist in the operation of the Diesel engine in question.

"XIII. There is no suggestion in the evidence that requiring the switchman to be on, or to cross over to the operator's side of the Diesel engine to give signals in the switching operations in question, presents any safety problem.

"XIV. The evidence shows that under all circumstances and conditions which are ordinarily and usually present, a 44-ton Diesel electric locomotive with only the engineer and the switch crew in attendance can be operated day after day in the switching operations of the Duluth Union Depot & Transfer Company with reasonable safety to the trainmen and to the public, and the employment of a fireman or helper thereon would be mere surplusage, and the contribution to the safety of operation by his addition would be negligible."

The decree did not enjoin the enforcement of the ordinance generally but enjoined its enforcement as to the switching movements herein described insofar as those movements were effected by the use of the 44-ton Diesel engine.

In seeking reversal defendants contend: (1) That the ordinance was passed in the exercise of the police power of the city, and hence was authorized, and that the question of the safety in operation was fairly debatable; (2) that certain evidence was improperly received.

In addition to the foregoing, there is presented the question as to whether under its Home Rule Charter, the City of Duluth had power to enact this ordinance. The trial court in its opinion, referring to this question, among other things, said:

"Whether the City can enact legislation under a general welfare clause controlling switching operations on a railroad's private property is at least a close question. The showing herein would not sustain a finding that the health, safety and well-being of the public at large would be affected or jeopardized in any way by the operation of a one-man locomotive on the private property of the plaintiff. Certainly, this is true as applied to the limited operations of a 44-ton Diesel."

The trial court, however, did not find it necessary to pass upon this question, and although the question is presented by the record we shall follow...