United States v. Seaboard Air Line Railroad Company

258 F.2d 262

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 10, 1958
• Docket: 7534
• Status: Published

Opinions

HAYNSWORTH, Circuit Judge.

This is a proceeding under § 6 of the Safety Appliance Act (45 U.S.C.A. § 6) to collect the statutory penalties for violations of the Act. The violations are said to have occurred when, on four occasions, the railroad moved cars without coupling their brakes so that they could be operated by the engineer. It is admitted that, in each instance, the only operable brakes were those upon the engine, so the only issue is whether or not the movements were train movements within the contemplation of the Act (45 U.S.C.A. § 9) and the supplementary orders of the Commission.

In distinguishing between “train movements,” in which the brakes of the cars must be coupled and operable, and switching movements, in which they need not be, courts have considered so many circumstances as affecting the character of the movement that we should first refer to the trackage and operations of the Seaboard in Hopewell, Virginia, where the movements occurred.

Hopewell, Virginia, is served by a branch line of the Seaboard which connects with the main line at Bellwood and terminates at Hopewell. Incoming trains from Bellwood arrive at a classification yard where they are broken up and from which the cars are distributed to consignees in Hopewell. Much of the distribution is effected over a lead track, which winds through the industrial section of Hopewell for a total distance of approximately two miles. Nine spurs, springing from the lead track, serve industrial customers whose plants are adjacent to them, and some of them are used for car storage. The spur, or customer lead, track most distant from the classification yard serves a plant of Continental Can Co., while the one second in distance from the classification yard serves a plant of the Allied Chemical & Dye Co. A track for the interchange of traffic with the Norfolk and Western also springs from the lead track at a point approximately midway between the classification yard and the end of the lead at Continental Can Co.

The Norfolk and Western has lead tracks paralleling the Seaboard lead throughout most of the length of the latter, and several of the Norfolk and Western industrial spurs cross the Seaboard lead track. At such crossings, the Seaboard has the right of way, and Norfolk and Western crews must bring their engines to a complete stop before crossing the Seaboard lead track. The leads of both railroads cross several streets and private ways. The crossing of one of these streets, a state highway carrying a substantial amount of traffic, is protected by a watchman and manually operated gates. The crossings of other streets and ways are protected only by stationary signs.

There is no perceptible grade on the Seaboard lead, and all movements over it are at yard speeds and under yard control. It is a part of the Hopewell Yard, and serves no purpose other than the distribution of cars from inbound trains broken up in the classification yard and the assembly of cars to be made up, in the classification yard, into outbound trains.

When an incoming train has been broken up in the classification yard, a switch engine couples on to those cars which are to be delivered over the lead track. Acting under orders of the local freight agent, the switching crew proceeds to distribute the cars over the lead track. Those consigned to customers on Seaboard spurs are spotted on the appropriate spur, while those destined to points on the Norfolk and Western are placed upon the interchange track. Because of the specialized needs for different types of cars,^{1 2}the crew may be required, en route, to pick up cars from storage tracks and place them upon other spurs for loading. On the return trip,³ the switching crews pick up from the spurs loaded outbound cars and empty cars for which the customer has no need, and, from the interchange track, cars which had been placed there by the Norfolk and Western for delivery to the Seaboard. These cars are then distributed to storage tracks breaking from the lead track or to the classification yard as circumstances may require. Outbound cars are then made up in the classification yard into an outbound train.

No question has been raised about any movement in either direction over the lead track during which the crew worked a spur relatively near the classification yard. It is asserted, however, that an isolated movement in either direction becomes a train movement if only the more distant spurs are worked. Thus, the charges here are based upon two movements from the classification yard to the Continental Can lead track without intermediate stops and upon two movements from the Allied Chemical lead track to the classification yard during at least one of which there was an intermediate stop en route to pick up additional cars from the interchange track.³

The fact that less than all of the nine spurs may be worked during a particular movement has no controlling significance. Nor do we believe the answer is to be found in an identification of the spurs actually worked. The nature of the work, its purpose and character are precisely the same, whether every other spur is to be worked, only those between the classification yard and the interchange track or only those, or one of them, between the interchange track and the end of the lead track. Whether these spurs are to be worked or those, the business of the switch engine and its crew here is the distribution of cars from trains which have completed their over-the-line run and the collection and assembly of cars to be made up into outgoing trains.

Nor do we accept the Government’s contention that “since the defendant moved (cars) between designated points in its yard for a distance of about 2 miles without picking up or setting out any car en route,” the movement must necessarily have been a train movement requiring operable train brakes. Substantially every switching operation involves such movements, many for comparable distances, but they take on the appearance of train movements only when lifted from their context of switching operations and separated from their function and purpose. It is not enough, ignoring what transpires before and what follows, to say that cars were moved from this point to that; the character of the operation is to be determined by a look at the whole and with due regard to all elements of its setting.

Thus viewed, we agree with the District Court that these movements were properly classified as switching movements. In the average day there were ten of such movements, and they do not fall into separate categories solely upon the basis of a classification, in terms of relative distance from the classification yard, of the spurs worked. The lead track, the spurs that break from it and the classification yard are all parts of one yard, and its extremities are not so distant as to deprive a movement from one end of the yard to the other of the flavor of its function in breaking up and making up trains.

Unlike other sections of the Safety Appliance Act which apply to the use or haulage of a locomotive or a car, the train brake provisions apply only to the running of trains. The difference in language is an appropriate expression of Congressional intention, in the adoption of the train brake provisions, to distinguish between an over-the-line run, during which the need of useful train brakes was great and obvious and compliance with the requirement would not unduly hinder railroad transportation, and switching operations, during which there is little or no need for train brakes and general and strict compliance with the requirement would be impossible or highly impractical. The distinction was pointed out by the Supreme Court in the first case involving the train brake provisions to come before it. United States v. Erie Railroad Company, 237 U.S. 402, 35 S.Ct. 621, 59 L.Ed. 1019, and, a week later, the Supreme Court declared the controlling test to be “the essential nature of the work done.” United States v. Chicago Burlington & Quincy Railroad Company, 237 U.S. 410, 35 S.Ct. 634, 636, 59 L.Ed. 1023.

But movements of trains and cars are so varied that the distinction between the fast, through train and the simplest switching operation is not always easily applied. Functionally, a transfer movement between separated yards may be a switching operation, but, particularly if it moves over main line tracks, it has elements of similarity to movements between major terminals and many of the underlying reasons for the train brake requirement are present. Train brakes are usually required in such movements. United States v. Erie Railroad Company, 237 U.S. 402, 35 S.Ct. 621, 59 L.Ed. 1019; United States v. Chicago, Burlington & Quincy Railroad Company, 237 U.S. 410, 35 S.Ct. 634, 59 L.Ed. 1023; Louisville & Jeffersonville Bridge Co. v. United States, 249 U.S. 534, 39 S.Ct. 355, 63 L.Ed. 757; United States v. Northern Pacific Railway Company, 254 U.S. 251, 41 S.Ct. 101, 65 L.Ed. 249; Chesapeake & O. R. Co. v. United States, 4 Cir., 226 F. 683; Illinois Central R. Co. v. United States, 8 Cir., 14 F.2d 747; Chicago & E. R. Co. v. United States, 7 Cir., 22 F.2d 729; United States v. Southern Pacific Co., 9 Cir., 60 F.2d 864; United States v. Southern Pacific Co., 9 Cir., 100 F.2d 984. Movements for the distribution and collection of cars have been held subject to the train brake provisions when conducted over main line tracks, United States v. Panhandle & Santa Fe Ry. Co., 5 Cir., 203 F.2d 241; United States v. Thompson, 8 Cir., 252 F.2d 6, but similar movements over yard tracks have generally been held to be exempt switching operations. United States v. Great Northern R. Co., 9 Cir., 73 F.2d 736; United States v. New York, C. & St. L. R. Co., 7 Cir., 77 F.2d 215; United States v. Elgin, J. & E. Ry. Co., 7 Cir., 182 F.2d 1; United States v. Chicago, Burlington & Quincy R. Co., 7 Cir., 199 F.2d 223; United States v. Pennsylvania Railroad Co., D.C.Md., 80 F.Supp. 965; United States v. Great Northern Ry. Co., D.C.W.D.Wis., 103 F.Supp. 889; United States v. Staten Island Rapid Transit Railway Company, D.C.E.D.N.Y., 151 F.Supp. 911. Cf. United States v. South Buffalo R. Co., 2 Cir., 168 F.2d 948. Even though the movements with which he was concerned were over main line tracks, Judge Hutcheson, now Chief Judge of the Court of Appeals for the Fifth Circuit, held that the train brake requirements were inapplicable because of the short distances between the spurs to be worked. United States v. Texas & N. O. R. Co., D.C.S.D.Texas, 13 F.2d 429.

The movements here were not over main line tracks, nor even inter-yard connecting tracks. They moved, entirely within the confines of one yard, over a lead track only two miles long from which there sprang nine spurs and an interchange track. Since the.nature of the work was clearly the distribution and collection of cars following the breakup of trains and preparatory, to the make-up of others, we ar.e convinced they were switching operations, exempt from the requirement of train brakes.

The classification of cars, narrowly considered, is but one of several exempt switching activities. Spotting cars upon a team track alongside classification tracks is equally exempt. Delivering cars to spurs is no less typical of switching than classification, and the considerations which exclude the one from the train brake requirement are applicable to the other. Movements over the lead track, from one spur requiring attention to the next, are an inseparable part of the switching activity, when the lead track is used, in fact, as an integral part of a yard in which the cars have been received or from which they are to be dispatched. Nor can we say, having due regard for the nature of the track, its connections and its use, that two miles is an unreasonable distance to travel without train brakes, when the “nature of the work done” is so clearly switching.

Much of the emphasis in the submission of the case has been upon the crossings of streets and of spurs of the Norfolk and Western, the Government pointing to them as potential hazards, while the railroad advances its safety record under the precautions of yard rules and asserts that the use of train brakes will increase, rather than minimize the risk of injury to trainmen, for they will be required to pass between the cars to couple the hose. Consideration of such crossings of streets and tracks is not irrelevant, for they are a part of the physical setting in which the movement must be viewed in order to determine its nature and character. A switching operation does not cease to be a switching operation, however, merely because the movement crosses a highway or spur track. IVEany an industrial spur crosses a public or private way, but spotting a car on such a spur does not become a line haul on that account. Movements over or across main line tracks may stand upon a different basis, where the switching movement becomes a potential hazard in the operation of main line trains, but crossing other yard tracks is a common incident in switching and their ownership by another railroad is not a significant circumstance.

It is not contended here that the Act properly or rationally may be construed to require the use of train brakes on every switching movement which crosses streets or highways or the yard tracks of another railroad. On the contrary, it is conceded that movements over these same crossings are exempt from the requirement if shifting is done relatively near the classification yard, a circumstance having no relation to the suggested hazard of the crossings. Whether or not a car has been placed upon a particular spur, the risk of collision with vehicular traffic at Randolph Street, and the other crossings, is precisely the same.

Where Congress has commanded the use of train brakes, the courts cannot excuse a failure to use them because of the use of other devices and measures, however effective in assuring safety they may be. If it were accepted that the Act should be construed to require train brakes whenever their use would contribute substantially to the safety of operations, an appraisal of the effectiveness of other measures would be necessary to decision, but it is not even contended that the Act has any such meaning.

Equally irrelevant, if Congress has required the use of air brakes, is consideration of the substantial cost to be imposed upon the railroad and of delay in the handling of freight. But if the use of train brakes on these movements is costly, delays shipments and creates new risks of injury without substantially contributing to the alleviation of existing risks, it is a reminder that courts should not extend the requirement beyond the intention of the Congress or needlessly chip away major portions of the long-established exemption of switching operations.

Affirmed.

1 . Most of the material delivered to Allied Chemical & Dye, for instance, is in coal hopper cars and boxcars, but most of its product is shipped out in tank cars.

2 . It is possible that the operation in the two directions may overlap to some extent. If cars are to be delivered to a spur and other cars picked up from the same spur, it may be that both operations would be performed at the same time, but the record before us does not disclose the practice here.

3 . On one of tlio movements toward the classification yard, the engine left the Allied Chemical lead track with twenty-nine loaded cars, stopped at the interchange track to pick up six loaded and fourteen empty cars and arrived at the classification yard with forty-nine cars. On the other questioned movement in that direction, records of the railroad indicate the engine left the Allied Chemical lead track with four loaded and one empty car, stopped at the interchange track to pick up one loaded and twenty empty cars and arrived at the classification yard with twenty-six cars, but an inspector for the Commission had testified that all twenty-six cars were moved from the Allied Chemical lead track without a stop at the interchange track.

The two movements from the classification yard to the Continental Can lead track were of twenty-eight and twenty-three cars, respectively. In each of these movements, some of the cars were ahead of the engine and others were behind it.