The opinion of the court was delivered by: BYERS
This cause involves an alleged breach of the Safety Appliance Act, 45 U.S.C.A. § 1 et seq., on the part of the defendant in connection with a movement of freight cars in its St. George Yard on Staten Island on September 16, 1953; the question for decision is whether that operation was so conducted as to incur the penalty which the Government seeks to exact, by reason of the failure of the defendant to cause the air brake system to be coupled from the engine to the freight cars being moved.
The complaint alleges two causes, a westerly movement from about the Yard Office to the plant of the U.S. Gypsum Company, of empty cars, and the reverse movement from that plant back to the Yard Office of a string of loaded cars and one empty.
The precise question is whether a train movement or a switching movement was involved in each instance -- if the former, the penalty has been incurred; if the latter, it has not.
There are no contested questions of fact presented by the record.
The statute and order involved are:
Section 9, which deals with the necessity for the use of power or train brakes as to not less than 50% of the cars in a given train to be used and operated by the engineer of the locomotive drawing such trains.
The Interstate Commerce Commission duly issued an order dated June 6, 1910, increasing the 50% requirement to 85%.
It has been authoritatively decided that in construing the Safety Appliance Act, it is required to ascertain the essential nature of the work being done, in order to determine whether under given circumstances a train movement, or switching movement is disclosed in the evidence.
See United States v. Chicago, B. & Q.R. Co., 237 U.S. 410, 35 S. Ct. 634, 59 L. Ed. 1023; Louisville & Jeffersonville Bridge Co. v. U.S., 249 U.S. 534, 39 S. Ct. 355, 63 L. Ed. 757; United States v. Great Northern R. Co., 9 Cir., 73 F.2d 736, certiorari denied 295 U.S. 752, 55 S. Ct. 833, 79 L. Ed. 1696; United States v. Northern Pacific Ry. Co., D.C., 121 F.Supp. 397.
The present factual situation may be conveniently recapitulated as follows:
(1) The defendant's railroad property involved is clearly shown on U.S. Exhibit 1, which portrays the St. George Yard running from east to west along the northerly shore of Staten Island, terminating at the western end at a point west of the U.S. Gypsum plant, which lies north of the right of way. It will be seen that the tracks here involved curve to the left or south as a string of cars are moved in the westerly direction.
(2) The distance traversed by these cars is agreed to be 6,010 feet, namely the distance between the Yard Office and the place at the U.S. Gypsum plant where the westerly movement came to an end.
(3) The motor power was furnished by a 1,000 h.p. diesel locomotive No. 489; in the westerly movement there were 3 box cars and 8 hopper cars, all empty -- of these, two cars were being pushed ahead by the diesel and nine were being pulled behind; in the easterly movement there were 9 loaded hopper cars, 1 empty box car and 1 loaded box car -- of these, one box car was behind the diesel and the others were being pushed ahead.
The empty cars were left at the Gypsum plant, and the second movement was of cars, nine of which had been loaded there. The loaded cars, on reaching the Yard Office, were weighed and then routed as their several destinations required.
(4) On each movement the diesel was equipped with an automatic brake but there was no air brake connection between it ...