The opinion of the court was delivered by: KNIGHT
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 to 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 and 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 not 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 New York harbor; the connecting tracks passed over several switches and traversed part of the same line over which 15 regular through and local trains moved each day. The distinction is plain, and this language of the court is pertinent: 'But it is otherwise with the various movements in railroad yards whereby cars are assembled and coupled into outgoing trains, and whereby incoming trains which have completed their run are broken up. These are not train movements, but mere switching operations, * * * .'
Again, in Louisville & Jeffersonville Bridge Co. v. United States, 249 U.S. 534, 39 S. Ct. 355, 63 L. Ed. 757, the movement was over a main line track across many connections with other tracks, and street crossings, with stops and startings on the main track.
The same is true in the following cases cited by the plaintiff: United States v. Northern Pacific R. Co., 254 U.S. 251, 41 S. Ct. 101, 65 L. Ed. 249; United States v. Chicago, Burlington & Quincy R. Co., 237 U.S. 410, 35 S. Ct. 634, 59 L. Ed. 1023; United States v. State of California, 297 U.S. 175, 56 S. Ct. 421, 80 L. Ed. 567; United States v. Galveston, H. & H.R. Co., 5 Cir., 255 F. 755; Chicago & Erie R. Co. v. United States, 7 Cir., 22 F.2d 729; Great Northern R. Co. v. United States, 8 Cir., 288 F. 190; Illinois Central R. Co. v. United States, 8 Cir., 14 F.2d 747; United States v. Southern Pacific Co., 9 Cir., 60 F.2d 864; United States v. Great Northern R. Co., 9 Cir., 73 F.2d 736; United States v. Southern Pacific Co., 9 Cir., 100 F.2d 984.
It will be seen that some of the foregoing decisions are decisions in the Circuit Courts where the Supreme Court rendered later opinions.
The plaintiff draws certain conclusions from the foregoing cases, with some of which we agree and with some of which we disagree. Movement of a car for considerable distance without uncoupling cars or switching may or may not be a switching movement, dependent upon the particular situation. The mere fact that a railroad company designates a large tract as a yard does not of itself make every operation therein a switching operation, though in the instant case all of the movements were within a comparably short space. The distance between the so-called yards was largely caused by extensive switching tracks of the Bethlehem Steel Company. The movement of cars between parts of the same yard wherein, in such movement, no cars are set out or picked up is not necessarily a train movement nor does the mere fact that the assemblage of cars is transferred by an operation without time tables or block signals with a switching engine and yard crew make such transfer a switching movement. It is a fact to be taken into consideration in determining character of the movement and the character of the line over which transportation was made between the two yards, whether on the main line of the railroad or on another line, but it alone is not controlling. In the instant case, as we view it, the particular line between the two yards was in fact a 'switching' line. Its whole use was for that purpose. It is quite true, as asserted by the plaintiff, that the controlling test of the statute's application lies in the 'essential nature of the work done' rather than in the names applied to those engaged in it. We say the 'essential nature of the work done' here was a 'switching' operation rather than a 'train movement.' It is true, as stated by the plaintiff, the assembling of cars prior to their movement or distribution after the movement is completed does not control. However, as pointed out, the fact that these cars and other cars were returned for deliveries to industries along defendants' system seems clearly to indicate a switching movement. It is true that 'the construction which the Act should receive is not to be found in balancing the dangers which would result in obeying the law from those which would result in violating it nor in considering what portion will equal in safety those prescribed by the Act.' But weight should be given to the fact that the short connection here crossed no railroad, and no street or ...