Before LUMBARD, Chief Judge, and CLARK and SMITH Circuit Judges.
Plaintiff's decedent, Edward Kane, was employed as a "platform man" for St. Johnsbury Trucking Company, an interstate freight common carrier. His duties were to unload trucks and trailers of that company at its New York City terminal. Defendant Branch Motor Express Company, is also a common carirer engaged in the hauling of interstate freight. Pursuant to a Trailer Interchange Contract between the two carriers, Branch delivered to St. Johnsbury on February 5, 1957 a semi-trailer :3062, over which complete control and supervision passed at that time, under the terms of the agreement, to St. Johnsbury. The trailer was sent on a freight run to Portland, Maine and returned to St. Johnsbury's New York terminal on February 9. It was at that time parked on the roof of the terminal to await subsequent unloading.
On the night of February 10-11 Kane was working a late night shift on the freight platform. The Branch trailer :3062 was brought down from the roof and backed into an unloading bay shortly after midnight. The trailer was uncoupled from the "switching tractor" which had brought it down; pieces of wood as wheel chocks were placed in front of the left rear tandem wheels and between the two sets of wheels on the right side. About 3:00 a.m., Kane and one Arthur Adrian began unloading the trailer. The work proceeded by means of either a hand cart or a motorized "hi-lo" depending upon the size and weight of the packages being unloaded.
The evidence is uncontradicted that the floor of the trailer was higher than the platform. Testimony of various witnesses, however, placed the gap between two and six inches. The court below adopted the latter figure, a finding for which there is ample support in the record. Because of the "gap" a steel ramp was employed to enable Kane, operating the hi-lo, to climb up into the trailer bed. At 7:15 a.m., after nine such previous trips, Kane and the hi-lo were climbing the ramp to unload the last crate. At this juncture, the trailer started rolling away from the platform; the front wheels of the hi-lo dropped off the edge of the ramp causing the machine to flip completely over on its back. Kane, trapped in the hi-lo, was killed almost instantly.
A jury having been waived, the case was tried to the court, Herlands, J. Plaintiff proceeded below on two theories. She claimed that Branch failed to fulfill safety requirements promulgated by the Interstate Commerce Commission and therefore negligently caused Kane's death. Her second cause of action was based on a common law negligence theory. Defendant contended that the ICC regulations were meant to apply only in an "on-the-road" situation and not while the trailer was being unloaded - and that those Regulations, even if applicable, did not require any kind of effective parking brakes on a semi-trailer. Branch also denied any common law negligence. The trial court found that the regulations were applicable to terminal unloading. In this it was clearly correct. Joe D. Hughes, Inc., 23 M.C.C. 563, 564 (1940). It held, however, that they did not require effective braking mechanism of any kind for a parked trailer. Judge Herlands also found against plaintiff on the common law count.
Appellant argues that the court below gave too little weight to the general provisions of the ICC Regulations requiring "operative" brakes "acting on all wheels," Title 49, C.F.R. §§ 193.42, 193.48, and that the District Court erroneously read sections 193.40, 193.41 and 193.43 as dispensing with the necessity for providing any effective braking system for an uncoupled, parked trailer save for a fifteen minute emergency breakaway requirement sepecified in § 193.43. Although the question is not free from doubt, we agree with appellant that the trial court erred in this finding.
§ 193.42 provides, with exceptions not here relevant, that "Every motor vehicle shall be equipped with brakes acting on all wheels * * *" This general requirement that all wheels of all vehicles be "equipped" with brakes is further strengthened by § 193.48's demand that "All brakes with which motor vehicles are equipped shall be operative at all times * * *"
The foregoing provisions set out in broad and sweeping strokes the clear concern of the Interstate Commerce Commission with the necessity for an adequate, always operative, braking system on interstate common carriers. The desirability of - indeed, the absolute need for - maintenance of the most stringent standards governing brakes on these heavy, potential rolling killers, in the interests of safety, is only too evident. Interpretation of ICC safety regulations must be approached with these considerations always foremost in mind.
Taken in its entirety, that subpart of the Regulations dealing with the brakes on carriers, §§ 193.40-193.52, is, regrettably, not nearly so clear as it might be. The aforecited provisions calling for operative brakes at all times apply to all "motor vehicles," which category includes semitrailers such as the one involved in the instant case. 49 C.F.R. § 190.1. Section 193.40, however, provides that
"Every bus, truck, truck-tractor, and combination of motor vehicles * * * shall be equipped with brakes adequate to control the movement of, and to stop and to hold, such vehicle or combination of vehicles. Two separate means of brake application shall be provided. One such means shall be a parking brake * * *"
That section is followed by § 193.41, setting down more specific requirements for parking brakes. The latter section literally applies to "every singly driven motor vehicle and every combination of motor vehicles."
Another section pointed to by defendant is § 193.43. That section deals with the emergency breakaway situation - where tractor and trailer have come uncoupled while in motion on the road. It requires that there be an emergency braking system on the trailer, independent of the tractor for its operation, which will remain effective at least 15 minutes.
Interpreting these sections singly, the trial court concluded that sections 193.40 and 193.41, by specifically enumerating those types of vehicles which must be equipped with parking brakes, excluding mention of trailers, obviated the necessity of furnishing semi-trailers with parking brakes Judge Herlands further reasoned that if § 193.43 demanded only that a trailer's air brakes hold at least fifteen minutes in case of a breakaway, there was no flat requirement that air brakes be completely leak free so as to qualify as an effective, permanent parking ...