Transcript of Record — United States v. Seaboard Air Line Railroad

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SUPF: . OURT. U.S.

TRANSCRIPT OF RECORD

SUPREME COURT OF THE UNITED STATES ©

OcToBER- TERM, 195 es

No. toe “oO

UNITED STATES OF AMERICA, PETITIONER,

, VS.

SEABOARD AIR LINE RAILROAD COMPANY

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR CERTIORARI FILED NOVEMBER °6, 1958

CERTIORARI GRANTED JANUARY 12, 1959

SUPREME COURT OF THE UNITED STATES

OcTOBER TERM, 1958

: No. 40 ; : t

; . - \

UNITED STATES OF AMERICA, PETITIONER,

Vs,

SEABOARD AIR LINE RAILROAD COMPANY

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR. THE FOURTH CIRCUIT

INDEX

; Original Print

Record from the U.S.D.C. tor the Eastern District of >

Virginia , /1 l

Caption (omitted in. printing ) “4 *~

Complaint 2 2

Answer : s° 5

Letter from Court to counsel dated April 4, 1957 11 +

Findings of fact and conelusions of Jaw entered June

28, 1957 — : ie oe | s

Letter from Court te counsel dated ine 2s, 1957 oT | Ms

Judgment ' ‘ ; 29 14

Transcript of testimony | 15

Appearances l 15

Stipulations of counsel —. 7 1

Testimony of Charles R. Meyrick

Direct . % 16

Cross _ ; . as 27

Redirect ’ ae 37

Recross ee 6] 30

Redirect iis 4 40

li INDEX

Record from “he ULSD... tor the Eastern’ Di-triet of

Virginia Continued

Transeript of testimony — Continued -

Te-timony of Chester E. Roy Original

; Direct . ti),

Testimony of Roy BE. Kean

Direet — 2 nae : . 74

Cross y 100

Testimony of Joseph R. Hoag

Direct ° 110

Cross . 17

Testimony of W. F. Morrison - ;

Direct. |

Reporter's certificate (omitted in) printing) 133

Opinion, Haynsworth, J. 134

Opinion, concurring in part and dissenting in part 146

Judgment 160)

Order extending time to file petition for wnt of certioran 161

Order allowing certiorari 163

‘e

{fol.1) - [Caption omitted]

fol. 2] ) [File endorsement omitted]

IN UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA |

- Civil No. 2364

THe Usirep States or America, Plaintiff.

Vv.

Seapoarp Arm Line Raitroap Company, Defendant

ea /

CompLaint—Filed June 4, 1956

1. The United States of America, by Lester S. Parsons,

Jr. United States Attorney for the Eastern District of

Virginia, brings this action under the. Aets of Congress

known as the Safety Appliance Acts (U.S. Code, title 45,

sections 1 to 16, inclusive), against the Seaboard Air Line

Railroad Company, a corporation: organized and doing

- business under the laws of the States of Virginia and North

Carolina, and having an office and place of business at

Hopewell, Virginia, this action being brought upon Sug

vestion of the Attorney General of the United Stat®, at

the request of the Interstate Commerce Commission, and

upon information furnist.ed by said: Commission. ,

[fol 3] Kora First Cause of Action

2. Plaintiff alleges that defendant during all the times

mentioned herein was a-common carrier engaged in inter

state commerce by railroad in the State of Virginia.’

*. That in violation of the provisions of the U.S. Code,

tithe 45, sections 1 to 10, inclusive, as modified by an order

of the Interstate Commerce Commission of June 6, 1910,

requiring that wheneversany train Ix operated with power

or train brakes

not less than Sd percent of the cars of such train shall

have their brakes used and operated by the emvineer

of the locomotive drawing such train, and all power:

braked cars in-every such tram whieheare assdcated

-fogether with the So pereent shad) have ther brakes se

used and operated,

defendant, on Mareli a, 16. operated. on its line of -rail

road, over a part of a highway of interstate commerce, one

train, to wit: its tran-fer. Consisting of twenty-six cars,

drawn by diesel locomotive engine No. 1745, said) train

heing one operated with power or train brakes.

That on said-date defendant operated said trai over

its ine of railroad frome Lead Praek at Allied Chemical and

Dye Company plant westward to THopewell Yared. in and

about. Hopewell, Virginkt-within the jurisdiction of this

court, When none of the cars in satd train had their brakes

used and operated be the chgifieer of the locomotive draw

ing sald trai, and when less than SS percent. of the ears

which composed said train had their brakes used'and oper-

ated by the engineer of said locomotive ¢ nyine drawing said

train.

Derendamtis therefore liable to plaintiff in the sum of

one hundred doflars.

[fol. 4] — Fora Second Cause of Aetion

6. Plaintiff alleges that defendant during all the times

mentioned herein was a commow carrier engaged in imter-

state commerce by railroad.in the State of Virginia.

That in violation of the provisions ef the U.S. Code,

tithe fo. sections Tito TO. inelwsive, as modified by an order

of the Unterstate Comnieree Commission of June. 6, 1910,

requiring that whenever auy train is operated with power

rottain brakes

not less than So percent of the ears of such train shall

have them brakes used and operated by the engineer

of the locomotive drawing sueh train, and all power:

‘Brakeel cars in-every such train which are associated

together with the So percent shall have their brakes so

used wid ope rated, | i

defendant, on Mareh Oo. 1956, operated on its line of rail

road, over a part of a highway of interstate Gommeree, one

Train, te wits its transfer, consisting of twenty-eight cars,

drawn by diesel locomotive cag No. Pi45. sata trai

bei one @perated with power or train brakes,

That on ~itiel date: detonelint ~— vated said train over

7 fine of railroad trom Prack Nooo. Hopewell Yard. east

ward to dead Track at \ilied Cheaiten! and lve OMpany

plant, in amd about Plopewell, Virginia, within the juris:

—aietion of this Court, When Hone of the cars iu said) train

Heuvel their | brakes se “dca toprensrte “af hy ihe nh erneer of the

Jraroorotive drawing site tesatn, sine me th dess that SO per

eentoof the ears whieh composed said train had their brakes

need and opertuted by the engineer of -aid locomotive engine

drawing said train.

Defendant is therefore liable to plait’ in the sum of

one hundred dollars.’

[tol 5] Kora Third Catise of Action 7 “

IO. Phaintat allewes that defendand during all the times

nentioncd herein Was a common carrier engaged in inter:

state commeree by railroad in the State of Viteinia.

1. Phat in violation of the provisions of the U.S. Code,

tithe 45, sections 1 to 10, inclusive, as modified by an orde 1

of the Tuterstate Commerce Commission of June G, 1910,

requiring that whenever any train is operated with power

or train brakes ¢ |

cal : }

not less than So percent of the cars of such train shail

have their brakes used and operated’ by the cngineer

of the locomotive drawing sueh train, nd all power

Aaked cars in évery such train which are associated

together with the So percent shall have theit brakes so

used and operated,

defendant oon Mareh 5, 1950, operated on its line of railroad,

over a partofa highway of titerstate commerce, one train,’

tO wit: its transfer, consisting of twenty-nine cars, drawn

by diesel locomotive engine No, 1758, saticl train beige one

operated with power or tram brakes,

That on said date defendant operated said train over

its line of railrejad from Track Now oS near Adied Chemica!

and Pye Company plant westward to Norfotk and Western

Tnterehairge frack. thence to Hopewell Yard, in and about

Hopewell, Virginia, within the jurisdiction of this court,

When none of the cars in said train had their brakes used

and operated by the engineer of the locomotive drawing

said train, and when less than So percent of the ears which

composed said traimhad their brakes used and operated: by

Hie engineers of said locomotive engine drawing said tran,

13. Defendant is therefore liable to plait? in the sum of

one hundred dollars.

[fol ol}: Fora Fourth Cause of Netion

4. Plaintiff alleges that defendant during all the times.

mentioned herein Was a common carrier engaged in inter

eel commerce by railroad in the St: ite of -Virginia.

That inv idlation of the provisions of the U.S. Code,

a ‘4D. sections. 1 to 10, ine lusive, as modified by an order

of the Interstate Coniumercee Commisston of June 6, 1910,

requiring that whenever any train is operated with power

or train brakes ,

; not less than So percent of the cars of such traim.shall

have their brakes used and operated by the engineer

of the locomotive drawing such train, and all power.

braked cars in every such-train which are associated

together with the $5 percent shall have their brakes x0

used and operated, : -

~ defendant, on March 6, 1956, operated on its line of railroad,.

over a part of a highway of interstate commerce, one train,

to Wit: its transfer, consisting of twenty three cars, drawn

by diesel locomotive engine No, 1798, said train being one

operated with power or train brakes. | |

16. That on said date defendant opérated said train over

its line of railroad from track No. 3, Hopewell vard, east-

ward to Lead track, Continental Can Compiiny plant, in

and about Hopewell, Virginia, within the jurisdiction of

this court, when none of the cars in said train: had their

brakes used and operated by the engineer of the locomotive

drawing said train, and when less than 8 percent of the

cars which composed said train had their brakis used and

operated by the engineer of said locomotive engine drawing

so train,

Defendant is therefore lable to plaintitt in the sum of

Crtice anid dollars.

: 7 ; $

[fol. 7] 1S. Wherefore, plaintil® prays judgment against

snd defendant in the sum oof fonr bundred dollars sad ite

costs herein expended,

Lester S. Parsons, Jr. United States Attorney,

oi 8

[fol. 8] - [ile endorsement omitted |:

“Is Usrrep Srates Disricer Counr ror rik Kasrens

‘Disrricr oF Virginia, Ricnaroxp Divisios

. (Title omitted]

ANSWER ‘iled July 2, 1956

(1). Defendant, Seaboard Air Line Ratlroad anges

admits the allegations Contained in paragraphs oa &

wa 14.

(2) Defendant, | ie Air Line Railroad Company,

admits that on’ March 5, 1956, it operated its diesel loco-

motive engine No. 1745) from the Lead Track at Allied

Chemical and ‘Dye Company plant westward to Hopewell

Yard nf the City-of Hopewell, Virginia, with certain. rail-

road cars thereto attached, but denies that said movement

Was a train movement but rather a switching movement

not within the provisions of U.S. Code, title 45, seetions

1 to 10, inclusive, as modified by an order of the Interstate

Commerce? Commission -of June 6, 1910, With respect to

power or train brakes.

(3) Defendant, Seaboard Air Line Railroad Company,

admits that on Mareh 5, 1956, it operated its diesel loco-

motive engine No, 1740 from Track No.5, Hopewell Yard,

eastward to Lead Track at Allied Chemical and Dye ¢om-

[rol 9], pany plant, in the City of Hopewell, Virginia, with

certain railroad cars thereto attached, but denies that said

movement Wasca train movement but rather ao switehine

movement not within the. provisions of U.S. Code, title 45,

sections T-to 10, inelusive, as modified by an order of the

Interstate Commerce Commission of June 6, TOTO, with,

respect to power or train brakes. *

(4) Defendant, Seaboard Air Line Railroad Company,

adits that on Mareh 5, 1956, Vit operited its diesel loco

6°

motive engine No. 1758-from Track No. 38 near Allied

~ Chemical and Dye Company plant westward to Norfolk and

Western Interchange track, thence to Hopewell) Yard, in

the City of Hopewell, Virginia, with certain railroad cars

thereto attached, but denies that said movement was a train

movement but rather a switching movement not within the

provisions of U.S, Code, title 45, sections 1 to 10, inclusive.

as modified by an order of the Interstate oo Com-

inission of June 6, 1910, with respect to power 0 * tram

brakes,

(5) Defendant, Se ‘aboard Air Line Railroad Company,

admits that on March 6, 1956, it operated its diesel loco-

motive engine No, 17908 from Track No.3, Hopewell Yard,

eastward to Lead Track, Continental Can Company -plant,-

in the City of Hopewell, Virginia, with certain railroad cars

thereto attached, but denies that spid movement was a train

movement but rather a switching movement not within the

Provisions of ULS. Code, title 45, sections 1 to 10, inclusive,

aus modified by an order of the Interstate Commerce Com-

inission of June 6, 1910, with respect ‘to power or. train

brakes.

(6) This defendant denies that it is liable to the plaintiffs

in any ammount on account of the alleged actions set forth

din the first, second, third and fourth causes of aetion of

[fol. 10] the complaint, and particularly in paragraphs 5,

915, 17 and 18 thereof.

Wherefore, this defendant asks judgment of this Honor-

able Court im its behalf, with its costs -hereia expended. -

The defendant requests a jury tpi: ul of this case.

Seaboard Air Line Railroad ‘Comany, a Corpory-

tion, by Eppa Hunton, IV, Its Counsel.

Certificate of service (omitted i printing).

(fol. 11] . [File endorsement omitted]

Ix Usirep States District Court ror KastTeRN

District oF VinGInia

Lerren-— Filed April 4, 1957.

April 4, 1957.

Henorable LL. So Patrsons. Jr. United States Attorney,

Richmond, Virginia.

Eppa Hunton, TV, Esquire, Blectrié Building, Richmerid,

Virginia.

(TENTLEMEN:

Re: The United States of Aimerica v. Seaboard Air bine |

Railroad Company. Riehnond Civil Action No, 2364 -

Upon consideration of the record,the argument of counsel

and the memoranda of arguments aml authorities submitted

in the above ease, | have reached the eomelusion that under

the facts présested: the movements complained of were

<witehing Crations rather than train movements and

therefore not covered by the Safety Appliance Acts.

~T have given consideration to the terms of the statutes

and-to the ease law called-to my attention and Tam mindful

of the purposes and wisdom of the statute involved. Tam_

also conscious’ of the fact that the safety record of the

(fol. 12]. defendant and the added cost of operation are not

controling. However they are worthy of consideration

along with the other facts.

After considering Kale wings whe cited, I. find the ‘language

‘used in United States vu C.. Bod Q. R. Co., 199 Fed (24),

223 (ole Cory particular i" apt, where the Court said:

“Neither Congress nor the’ Interstate Commerce

~ Commission hax seen fit to define the meaning of the

word ‘train’? as employed in the Act. This perplexing:

problem unfortunately, so we think, has been left ‘to the

courts. After wrestling with it. for some fifty years,

courts have accomplished little other than to decide on

the particular facts of the case whether the movement

was that ofva train within the meaning of the Act. It is

apparent. therefore, that a holding in one ease carries

little weight as a rule for decision in another. Even

when the facts of the case are disclosed, the question

inust depend largely upon the opinion or judgment of

the court called upon to make the decision. And where

the facts bring the case within the twilight zone, as we

think they do in the eases before us, the opinion of one

judge or court is likely to be as good as that of

another.”

lL am-also in accord with the opinion there expressed that

there are decided cases which afford support for both of

[fols. 13-20] the contentions here made. In this situation

each case is controlled by the facets presented.

Considering all the facts, including the number and nature.

of the grade crossings referred to and the physical aspect

of the vard and the operations, T have reached the conclu-

sion stated. —. ae

It is suevested that Counsel for. the respective parties

~ubmit proposed findings of fact and conclusions of law in

recordance with the views here expressed,

Very truly vours, Sterling Hutcheson, United States

District Judge.

[fol 21] [hil endorsement omitted]

Ix Uxirep States Disrrier Courr ror tire Master

District oF Viretnra at RieumMonp

Civil Action No. 2364

Unxirep-Sratres or America, Plaintiff,

¥.

Sianoanp Air Line Ramroap Company, Defendant

ixpines of Fact AND CONCLUSIONS oF J, aw—Filed —

June ZS, 1957

The above entitled cause having come on regularly for

triabon January 31, 1957, and the Court having duly con--

sidered. the evidence and the post-trial briefs, now-makes

the following

Findings of Fact

. The defendant, Seaboard Air Line Railroad Company,

is a common ¢earrier by railroad engaged in interstate com-

meree within the jurisdiction of this Court and subject to.

the provisions of the Acts of Congress known as the Safety

Appliance Aets (U.S. Code, Title 45, Sections 1 to 16,

inclusive), and the order of the Sitntitintt (Commerce Com-

mission of June 6, 1910, requiring 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 engi-.

neer of the locomotive drawing such train and_ all

power-braked cars in every such train which are asso-

ciated together with the 85 per -eent shall have their

brakes so used and operated.”’

The main line of the defendant runs from Riehmond,

Virginia, to points in the State of North Carolina, and other

[fol. 22] States, from which main line it operates a branch

for freight service only from a point in Chesterfield County,

‘Virginia, known as Bellwood, te the City of Hopewell,

Virginia. :

*. In said City of Hopewell the defendant has established

vard Iimits for the movement of its locomotives, cars and

trains, within which yard limits all of the movements com-

}ained of and hereinafter described ‘took place. Included

within said yard limits are a large number of tracks which

taken as a whole are known as its classification or assembly

yard to or from which all trains moving beyond the city

limits of Hopewell come or go. In said classification yard

trains arriving at Hopewell are broken up and the ears

composing the same are separated and reassembled aceord.

ing to their consignees and the location of the place at whieh

loaded gars are to be unloaded or empty cars are to be

spotted for loading or intereliange made with the Norfolk

and Western Railroad (N. & W.)..

4+. Between the classification vard of the defendant and

the lead tracks of the Alhed Chemical and Dye Company

(Allied Chemical) and Continental Can Company (Can

('o.), a distance of approximately two miles, all within the

Hopewell yard limits of the defendant, there are the fol-

10.

lowing street and railroad crossings in order, commencing

at the classification vard: Tlopewell Street, Palm Street,

N. & W. track, private road, two N. & W. tracks, private

road, Randolph Street (Virginia State Route 10), Terminal

Street, DuPont Cor Hopewell) Street, N. & W. track. The

tracks of the No & W. parallel those of the defendant from

the Allied Chemical and Can Cauptints to Palm Street. The

only crossings of streets or railroads where the N.& W. does

not parallel those of the defendant are those at Hopewell

and Palm Streets. Between the two N. & W. tracks and the

private road before reaching Randolph Street there is an

(fol. 23] interchange track-for the interchange of ears be-

tween the N.& We an€ the defendant. In conducting move-

ments alone this, track, which is 7 to S feet distant from the

track of the defendant, the No & W. does not connect the

heses between the eneines and cars. There are vine mdus

trial sidings or spur tracks of the Seaboard branching off

the various potuts from its raiks between the classification

vard and Atiied Chemiieal and Can Co. Locomotives of the

Athed Chenvieal the No& Woo and the defendant use the lead

track at the Adlied plant. Athed Chemical plaut locomotives

also use a portion of defendant ’s track a short distance

hevond the confines of seid plant. :

» The NO& W. tracks grossed at grade are used by that

railroad to serve industries only. Fixed sigus known as

Stop Boards" are located on the NL & We tracks and anove-

ems thereon are required fo come tod stop hefore crossuis

the tracks of the defendant. Movements on the tracks of tlie’

detendant across those of the NO& W. duive the right-of-way.

H0 Maeh street crossing ots provided with all warning

deviees required: by law for the protection of travelers on

toe diehway. Randolph Street crossing is protected by man-

nally operated crossing gates operated by a wateliman.

¢. Prafiic over the private crossings is generally lielit.

Poufiie over the street crossings varies from moderate -to

Heavy depending on the time of day, the heavy traffie occur.

rine at hours whieh do not coincide with the usual hour for

revements along the tracks here involved, but there are no

schedaled movements over these tracks.

s. The Hopewell Fire Department anaintains four pieces

of fire-fighting equipment and an emergeney rescue vebicle

atits engine house on Terminal Street withina few hundred

feet of the tracks here involved. There is no evidence that

the movements complained of or similar movements have

ut any time or in any way interfered therewith. -

{fol. 24} 9. All movements within the defendant's yard

Jimits at Hopewell, Virginia, are made under the direction

of its agent there.- .

~10. On March 5 and 6, 1956, on complaints made by the

Brotherhood of Railway Trainmen, two inspectors from the

Interstate Commerce Commission observed four movements .

of cars within the yard limits of Hopewell to or from de-

fendant ‘s classification yard to or from the Allied Chemieal.

~ and Can Co, plants. Failure to use air brakes on these four

movements, which were entirely within the yard limits, iw

the basis for this action. aerte:

11. The first movement observed by the inspectors origi-

nated at the Allied Chemical plant on Mareh 5, 1956, at

12:09 p.m. It consisted of 26 cars and traveled to defend-

ant’s classification yard, a distance of approximately 11,000

feet, the maximum distance traveled in these movements.

Rynning speed was approximately 10:-miles per hour.

12. The second movement originated at defendant's clas-_

sification yard on Mareh 5, 1956, af 12:37 p.m. It consisted

of 28 cars, thirteen ahead of the engine and fifteen behind.

It traveled to the Can-Co. plants.

13. The third movement at the Allied Chemical

plant at 3:26 pan. on Marehe5, 1956.. It proceeded with 29

cars to ait interchange with the N. & W., approximately

half way between the Allied Chemieal plant and defendant's

classification vard, At the interchange, the switch engine

disconnected the ears from the Allied Chemieal plant,

coupled on 20 cars at the interchange, and then again

coupled on the 28 just uncoupled. It then proceeded to the

saggy yard,

| The fourth movement or iginated at defendant's clas

“if whe yard at 11:57 a.m. on Mareh 6, 1957. It consisted

[fol. 25] of 23 cars, eight ahead of the engine and 15 behind.

It proceeded to the Allied Chemical and Can Co, plants.

15. There is no perceptible grade on any of the tracks |

involved in the four movements plaintiff complains of.

bé. The speed limit in the Hopewell vard whieh embraces

wll the tracks invelved in this action, is fixed by the rules of

the defendant at yard speed; that is, the movement must

not be made at such a speed that it cannot be stopped within

half the range of vision along the tracks regardless of

whether air brakes are used or not.

17. In the 27 years since the line into Hopewell was estab-

lished, there have been four er ossing accidents; two in 1941,

one in 1944, and one in 1954. There has never been an injury

to an employee on a movement between the classification

vard and the industrial plants, spurs and sidings or inter-

change with the N. & W. in Hopewell. .

18. For the defendant to connect the air hoses on move-

ments between its classification yard and Allied Chemical

and Can Co, and intermediate spur tracks, sidings and inter-

change, would result in a delay of approximately forty

minutes in each movement and entail an additional annual

expense of $30,000 for wages alone, and other expenses.

19. The movements complained of would not have been

less hazard« ‘sto employees or the — if air brakes had

been coup’ *nd used.

20. The ements complained of were shite move-

ments and not train movements. , . -

’Conelusions of Law

1. No absolute standard is available for determining

whether a particular movement is a train movement, so that

[fol. 26] under applicable Interstate Comimeree Commis-

sion regulations 80° of the cars must have air brakes

capable of being operated by the cugineer of the locomotive,

or whether it is a shifting movement, in whieh ease it is:

not necessary that air brakes be funetioning on the ears.

Instead, each case must be decided on its merits, giving full

consideration to the purpose behind the statute and its

implementing regulations and all pertinent facts.

The evidence shows that the. movements in ‘question -

were shifting movements and not train movements and that”

there has been no violation of the provisions of U.S. Code,

Title 45, Sections 1 ‘to 16, inclusive, as modified by the order

of the Interstate Commeree Commission of June 6, 1910.

The action wiil be dismissed with -costs to the de-

fendant. * |

Sterling Hutcheson, U.S. District Judge, June 2,

1957.

{fol. 27] I~ Usrrep States District Court ror THE

EasteERN District oF VirGiINia

Letrer—Filed June 28, 1957

: June 28, 1957.

Edwin J. Slipek, Esquire, mie

Assistant United States Attorney,

Post Office Building, ~

Richmond, Virginia. |

Eppa Hunton, IV, Esquire,

Electric Building,

Richmond, Virginia.

_ GENTLEMEN > .

‘Re: The United States of Nmerica ve Seaboard Air Line:

- Railroad Company, Richmond Civil Action No. 2364

1 have examined the proposed findings of facet and con- °

clusions of law submitted by counsel in the above ease. It is

my conclusion that the findings and conclusions submitted

by the defendant correctly set forth the situation, with the

following amendments:

1, On page 2, paragraph numbered 4, line 8, following

the words ‘* Randolph Street *, T have inserted “(Virginia

State Route 10)".

2. On page 3, at the conclusion of paragraph numbered 4,

I have inserted the following language: ‘‘Locomotives of

(fol. 28] the Allied Chemieal, the N. & W., and the defend-

ant use the lead track at the Allied plant. Allied Chemical

plant locomotives also use a portion of defendant's track a

short distance bevond the confines of said plant.’* Tt will be

noted that this language is substantially’the same as sue-

vested by éounsel for the plaintiff and would appear to be

supported ‘by testimony of the witness Roy BE. Kean on

page 76 of the transcript.

The findings of fact and conclusiows of law suggested by

defendant, amended as stated, have been filed today.

If counsel are of opinion that any further order is re-

quired, T shall be glad to have proposed draft.

Very truly yours, Sterling Hutcheson, United States

District Judge.

[fols. 29-35] — (File endorsement omitted] |

Ix Ustrep States Distrreer Cocrr ron THe

EasterN District oF VirGcinia

“ Civil No. 2364

Tue Unirep States or Averica, Plaintiff,

ns v.

Seapoarp Arr Line RarLroap Company, Defendant

JcupGMENT—July 3, 1997

This action came on to be tried before the Court, and the

evidence adduced by the parties having been heard, and the

action having been argued by counsel, and the Court having

maturely considered the samé and having made ifs findings

of fact and conclusions of law, it is hereby

Adjudged, that this action he, and it hereby is, dismissed

on the merits and judgment i is accordingly entered for the

defendant, Seaboard Air Line Railroad Company.

July 3, 1957 0 .

Enter: Sterling Huteheson, United States District

Judge.

| ask for this: Eppa Hunton, IV, Counsel for Seaboard

Air Line Railroad Company, defendant. Seen objected to:

Kdwin J. Slipek, Assistant United States Attorney.

[fol. 1) Is tue Usrrep States District Court FoR THE

Mastern Distiset of Virerxia, RicumMonxp Diviston

[Title omitted]

Transcript of Testimony. Jamiary 31, 1997

Before Honorable Sterling Hute heson, United State 's

Pistrret Judge.

APPEARANCES:

Edwin J. Slipek, Esq., Assistant United States Attorney,

and Henry L. Hilzinger, Esq. Attorney for the Interstate

Commerce Commiseion, For the P laintiff. |

Messrs. Hunton, Williams, Gay, Moore & Powell, hy Eppa

Hunton, IV. Esq., For the Defendant.

[fol. 2] STIPULATIONS GF COUNSEL

Mr. Slipek: To expedite the case, counsel for the Govern-

ment and counsel for defendant have agreed on certain

stipulations, whieh Mr. Hunton will present te the Court.

Mr. Hunton: If Your Honor please, it has been stipulated

“and agreed between counsel in this matteg that the plat

which [have here of the Cit¥ of Hopewell, entitled **Map

of Hopewell, Virginia, Office of City Engineer—Secale One

Foot Equals 600° Feet——January 1, 1955,"° may be intro-

duced and considered in evidence as Government's Exhibit

Past fully proven: that the plat entitled ¢* Map Showine

Curve and Alignment of Prince George & Laereen Rail

way, Bellwood, Virginia, to Hopewell, Vi Seale One

Ineb Kquals 1,000 Feet— February 1s, 1925, Review June

25, Office of Chief! Construction Engineer, Norfolk, Vir-

‘ginia’’; and a third one entitled, ‘Layout Hopewell, Vir—

ginia—Seale One Inch Equals 20 Feet—-Part of Chief Engi

neer’s Drawing No. 12051," may be considered as Defend.

wuts Exhibits 1 ane 2 respectively,

It is stipulated and agreed between counsel that the move

nents in question were made without the 85 percent of air

brakes connected and operating, as alleged, as well as the

[fol. 3] other admissions contained in the answer. filed.

CHarves R. Meyrick, called as a witness by and on behalf

of the plaintiff; and being: first duly sworn, testified as

follows: i

Direct examination.

By Mr. Slipek:

(Q. Mr. Meyrick, kindly state your name, residence, and

occupation, please, sir. :

A. Charles Ro Meyrick, Robert Bruce Drive, Bon Air.

Virginia; Toanmt an inspector for the Interstate Commerce

Commission.

(). How long have vou been so employed, sir?

A. Approximately two and a half years.

Q). What was your occupation prior to becoming an

inspector? ‘

A. To was ai bri akeman and conductor for the a &

Albany Railroad.

(). How long were you so employed?

A. Twelve years and two months.

. Will vou ples ise outline to the Court your duties as a

safety Inspector?

A. As ai safety appliance inspector ~T am expected to

. Inspect the installation and maintenance of various types

[fol. 4] of safety appliances on railroad locomotives and

carriers; to investigate complaints which may have been.’

initiated by the traveling publie and employees Upon rail

roads as to unsafe practices, defective safety appliances or

things used on train tracks; to investigate accidents in which

there is serious or extensive damage to property or loss of

. ge : |

What is vour area of oper: ations?

4 It comprises nearty the entire State of Virginia,

nearly the entire State of West Virginia, the State of Dela-

ware, the District of Columbia, and approximately half of

the State’of Maryland.

Directing your attention to the: dates on or about

Mareh o and 6, 1956, did you have oceasion to conduct an

‘investigation inthe Hopewell area and, specifieally, did you

have oceasion to investigate the Seaboard Air. Line Rail-

way? :

A. Yes, sir, I did.

. Will vou, then, sir, give the Court in your own words

Ri ‘results and findings of your investigation on those

dates? ;

The Witness. May I refer to notes? s./*

The Court: Yes, sir.

A. On the oth of March, 1956, T was in the vicinity of

Allied Chemical & Dye Company's plant at Hopewell and

observed Seaboard Air Line Engine 1745 depart from that -

(fol. 5] point at 12:09 p. m., with twenty-six cars. 1 also

observed that. the air hose between the engine and the first

car azas, not coupled; consequently, the brakes on none of

the cars could be operated. ,

Q. W ill you speak so the Court can hear you,

A. I'm sorry. 1 observed this Seaboard Air Line Engine

1745 depart from this point with twenty-six cars and the

air brakes operative on none of these cars. That departed

at 12:09 p.m, and arrived at the Seaboard’s Hopewell vard

at 1:22 p.m.

Q. Did you accompany the it mov vement?

A. Yes, T did.

Q). What was your position on the train during such

movement?

A. T rode one of the cars of the movement.

Q). Approximately where was that car loeated in’ the |

train? '

A. It would be difficult-to state accurately at the present

time. :

(). Well, toward the frout, rear, or middle?

A. TL would say it would be nearer the front of the cut of

Cars, . ts.

( What kind of car were you riding?

A. IT believe it was a tank ear.

—Q. Inthe run fromthe Allied Chemieal Plant to the Hope-

[fol 6) well yard, were there any switching operations con-

ducted by that locomotive in connection with this train?

= There were none.

. It was a direct run?

i It wasa direct movement from Allied Chemieal & Dye.

plant to the Tlopewell vard.

(). What is the approximate distance from the: Allied

( hemigal & Dye plant to the Hopewell vard?

A. Approximately 11,000 feet.

Few

Q. That would be—- ©

A. Well, roughly, a little over two miles.

(). T notice that you have the time of departure from the

Allied Chemical plant and you also liave the, time of arrival

at the Hopewell vard and vou have the distance between?

the points. At what speed was this train traveling?

A. It would be approxiniately ten miles an hour. +

(). And that is from your own notes of the investigation?

A. Yes, it Is. .

Mr. Slipek : May [ ask a question of counsel?

(Mr. Slipek spoke with Mr. Hunton.) 7

Q. Mr. Meyrick, -hand you Defendant's Exhibit No. 2,

. sir. Display the map so the Court can see it. If you will,

take the blue pencil that T have handed you and start with

[fol. 7). that particular run that you referred to, on March

o, and. indicate in-blue the intersections that this run trav-

ersed (and T mean street intersections) and, at the same

time, call the Court’s attention to any rarlroad crossings,

that is, beginning with the Allied Chemical plant and work-

ing your way to the Hopewell vard.

A. To begin with, there is a crossing at isabe with tlie

Norfolk & Western Railway at this point, here. It is out-

lined in green pencil. You want me to mark it in blue, vou

Ray? x

Q. Yes. a

A. Then, immediately after that there is a highway cross-

ing at grade, which is Dupont Street, and that is approxt-

— at that point (indicating).

. Is it called Dupont-Street on-that map? .

i The map indicates that it is Hopewell Street, but-the

street signs indicate that it is Dupont Street.

Q). Very well. Now, pausing right there, what is the

nature of that street crossing?

A. It isa public highway crossing at grade and it pro-

vides access—is one of the means of access to these indus

trial plants, Allied Chemical & Dye and Continental Can

Company. :

Q. Is it used by these plants in hauling material and

supplies to these plants and away from these plants?

[fol. S]° A. Yes, it is.

’ tend

Do you have any idea what number of people are

ued in these plants that it serves?

A. Lam sorry, I do not. —

"(. Will you say it is a small number, or substantial?

A. | would say it would be a very substantial number,

(). But you can *t-—— .

A. I'm sorry, I wouldnt care to estimate.

Q. Now, sir, carry on to the next crossing, if you will.

‘AL I find « on the mapa green line and, according to my

notes, there is uothing at this point and, consequently, |

don't know what this green line would: indicate.

Q. Well, go on with vour. notes, then, and disregard that

for the moment.

A. The tiext crossing, according to my notes, is Terminal

Street, which is approximately here, another street crossing

at grade, at approximately this poimt.

(). Will you mark it clearly i ini blue, sir?

(The witness made the designation on the map.)

Q). Now, what type of crossing is that?

A. A street-crossing at grade.

"(Y. Where does it go to? Where does it lead:to on either

[fol. 9] side?

A: On the righthand. side in the divection of movement

it would lead into Hopewell Street. At the intersection. of

Terminal and Hopewell Streets: is the headquarters: and

inain fire station of the Hopewell Fire Department.

(). How many pieces of equipment are maintained at that

Fire Department?

A. The Fire Department has four pieces of equipment

but the building also houses the emergency equipment of the

Hopewell Emergency Squad.

(). Do they have occasion to use that crossing?

A. Yes, they do.

Q). Your investigation revealed that they do?

A. Yes, they da. “ | :

(. You say they have four pieces-of equipment plus— --

A. .Emergeiicy vehicles for the Hopewell Emergeney

Squad. , ers

Q). Do you have any idea of the frequency of their runs

across that ¢ ‘rossing’? ,

A. That would vary with conditions, and it would be hard’

to give any hard and fast figure on that.

Q: Carry on, sir, to the next crossing.

A. That was Terminal Street, .and the next crossing is

Randolph Street, or Virginia State Route 10, which is also

a public road crossing at grade, and it is at this point

[fol. 10] (indicating).

Q. Will you tell the Court what type of safety movies

are at that junction?

AL That: particular crossing ‘is’ protected by saa

operatéd crossing gates, operated by an operator in the

tower Su_one of the angles of the intersection.

(). And that is a widely traveled highway, is it not?

A. Very heavily traveled.

Q. All right. You, of course, have been approaching this

last intersection of Randolph Street on Route 10 from the

Allied plant, have you not? . ee.

A. Yes; that is true.

Q. What situation obtains if you are moving from the

Hopewell yard to the Allied plant in reference to that inter

section ? -

A. There is a very sharp curve which materially restricts

Visibility in the immediate vicinity of the crossing approach-

ing from either direction.

4). Then, the same situation would obtait—— ~>

A. It would apply in either direction.

—Q. Very well, sir. Now, if you will, go on to the next

crossing.

A. There is a ee road crossing at about this point

. (indicating). It is not indicated-on the map. It provides

access to a yard in which materials which have been

(fol. 11] cleaned—materials which have been removed from

cars cleaned out preparatory to loading by the Norfolk &

Western) Railway, are stored; in) other words, waste

material. :

-Q. What evidence was there that these operations were

heme carried on?

A. Oh, there was a large ‘quantity of these waste mate-

rials piled along the track. —

(). Will you explain to the Court how that operation

works? |

A. AS ears are emptied and returned to the railroad, they

are placed ona particular track in the yard and there is a

force Whose daty it is to clean out these ears for future

loading, and the waste material removed from these cars

is: piled beside the track and removed from that point:

Q). Arfd your investigation indicated that particular area

was used for removing the debris and dunnage from that

pile?

A. Yes.

Q. All right. Continue, will you.

By the Court:

(). That is removed by whom? By the raiJroad, or truck!

A. Frankly, I don’t know who would* remove it, whether

it is done on a contract basis, or whether the railroad re-

moves it, itself, but I imagine it would be removed by motor

[fol. 12] vehicles, rather than by railroad equipment.

We next have a crossing at grade with the Norfolk &

Western Railroad at this point, and as we progress from

the yard we come to the interchange track between the

Norfolk & Western Reilway and the Seaboard Air Line

Railroad, which is at this point. -

By Mr. Slipek:

(). Now, going back to the point before the one you are

on-now, where is that point? So the record will show where

you are in there. You say “at this point.”

A. The interchange track—is that what you are referring

to? Or.the crossing of the Norfolk & Western Railway?

Q. Tam asking you tO pinpoint the crossing with a little

more certainty. ae

A. All rights This last crossing of the Norfolk «&

Western is at this point (indicating), and as we proceed

toward the yard—— |

Mr. Hunton : May L interrupt just to clarify the situation ?

By Mr. Hunton.

(). The Norfolk & Western crossing is not a railroad

crossing, but’ the crossing of the railread?

A. No, sirs the crossing T referred to was a crossing au

rade with the Norfolk & Western Railway

“ys we leave that point we proceed cna Hopewell vard

[fol. 13] and the next point is the Norfolk & Western Rail-

way and Seaboard Air Line Railroad interchange track,

pt renee ne

*)»)

which is loeated at this point (indieating). Leaving the

Norfolk & Western Railway interchange track, here again

I find a gFeen line which would indicate some sort of cross-

ing but which docs not show up in my notes.

By Mr. Slipek:

All right. Continue.

: As we leave the Norfolk & Western Railway inter-

change track we come to another crossing with the Norfolk

& Western Railway at grade at this point (indicating). This

heat crossing is a private road crossing also at grade.

Q). And where does that private crossing lead to?

A. It leads to what is indicated on the map as the Tubize

Artificial Silk Company.

Leaving that crossing, next we come to another railroad

crossine at grade with the Norfolk & Western. Railway at

this point (indicating). Immediately after we cross the

Norfolk & Western Railway at grade, we come to a public

street crossing at grade. This is Palm Street crossing and

i ix located approximately here (indicating).

Proceeding on from Palm Street we come to Hopewell

Street, which is another public read crossing at grade and

ix located at this point (indicating).

(). Where does that last street lead to?

[fol. THA. It leads to Hereules Powder Company.

hie that a big establishment, or a small oper ration:

. Ht isa relatively large plant.

4 Do the enyployees use that crossing in going to and

‘coming from work?

A. Yes, they do.

Y. You have no idea how many people are employed

there? :

A. | heard: the fivure five hundred used as an estimate.

Mr. Hunton: Tf Your Honor please, I object on the ground

that it is hearsay.

The Court: Yes.

——

bv Mr. Slipek :

Dont vo into wh: vs someone told vou. That will eon-

r hak that portion.

IT now hand you a copy of Government’s Exhibit 1. Where

dees this entire movement take place? %. so

A. That is the course of the first movement as outlined,

from this point, approximately this point, following the

line of the Seaboard Railroad, which is indicated in red,

neross the various crossings and into the Hopewell yard,

which is at this point. —

Q. And where is the whole movement? Orient that move-

ment in connection with the town of Hopewell, sir.

(fol. 15] <A. Entirely within the city limits. —

Q. Can vou indicate in blue the position of the fire house

that vou referred to on the other map?

A. Surely, if T can find Terminal Street. It should be

approximately there: it is marked on the map at this point.

Mr. Hunton: If Your Honor please, it is stipulated and

agreed between counsel for the parties that there is no

necessity for the witness to repeat his testimony with re-

spect to the various crossings and things as to each one of

the counts here involved, but that testimony may be taken

as going to all four counts here in question.

The Court: Very well. The movements ‘were over the

same general trackage? .

Mr. Hunton: That is right, sir.

I take it that goes not only for your witnesses, but mine

as well.

Mr. Slipek: Yes, indeed, but I won't bar vou from includ

ing a few more crossings.

By Mr. Shipek:,

(). Now, direct your attention to the next investigation

vou mede on that day.

A. That consisted of a movement’ from Hopewell yard

to the plants of Allied Chemical & Dye and Continental Can

(‘ompany.

[fol. 16] QQ. This was in the opposite direction?

A. It was. |

(). This is from the Hopewell yard to the Alhed Chemical

plant.

A. That consisted of Engine 1245 with twenty-eight cars, .

> thirteen of whieh were ahead of the engine and _ fifteen

behind the engine. The movengnt departed from Hopewe!!

vard at 12:37 “ee arrived at the plant of Continental Can

(‘ompany at 12

Q. Did vou “ide this particular movement ; ;

A. Yes, | rode this movement.

(). And where were you riding?

A. [can’t recall specifically whether Twas on. the engine

or on one of the cars in the train.

Q. From your notes, how fast was that train traveling?

_A. Approximately fifteen minutes elapsed from the time —

‘he left Hopewell vard until he arrived at the Continental

(‘an Company's plant, which would indicate between ten

and thirteen miles an hour.

(). Was this a direct run?

A. This was a direet run with no stops en route,

Q. With no switching operations?

A. No switching operations whatsoever.

(). And it made the same crossings as vou stated de ‘hee

[Yol. 17] - A. Yes, it did. .-

(). How many emplovees were there on that train?) Do

vou know? i

A. It consisted of either five or six men. TP don’t recall

Whether they used three brakemen on that run or net, but

it did consist of a fireman, an engineer, and two brakemen,

and possibly three brakemen.

Would that hold’ true for cach of these movements?

A. That would hold true for each of these movements,

Do vot know where these brakemen were, sir?

\. There again Lam voing to have toe trust to memory, |

would sav that thes were probably in position on cars of

the tran,

In this particular move ment we are pushing thirteen ears

dhead of the train, Phere was aman on the leading car and

Jean’t recalbif there was aman betwee thhimeand the engine

or not,

. Do vour notes indicate anvthing in connection with

the nimiber of ears traversing these respective intersections

atthe time of thissrun? |

A. Do vou mean velicular trafic on the public street

8 wae . ,

Crossihes..

() Vehicular or pedestrian.

A. Lam sorry, | have nothing in my notes that pertains

- te the volume of trate over any of these crossings. | do

eet ell

{fol. 18] an that in the vicinity of the industrial plants

traflic at certains — — of day would be heavy.

Mr. Hunton: If Your Honor please, 1 object to the evi-

dence of what traflie there might be in the vicinity of par-

ticular plants. Tt.is what traffic was there at this particular

tine, are

The Court: T think the point is well taken. The objection

is sustained.

By Mr. Slipek cg

(). Continue, sir.

A. The next instance was one in which Engine 1758 de

parted from Track 38 at the Allied Chemical & Dye Com-

pany plant with twenty-nine cars and traversed the usual

route up to the point of the Norfolk & Western interchange,

at which-—- °

4 What date was that? ;

. That was Mareh 5.

All right, continue,

i At this particular interehd nge track between the two

railroads twenty additional cars were picked up and added

to the train.

(). Point that out to the Court, please, on Defendant's

Mixhibit No. 2.

A. This is the location of the interchange track and the

point at which the additional cars were added to the train

[fol LO) Cindieating to the Court on the exhibit).

Then what happened to the train? |

A. The train proceeded as usual over the normal route

to Hopewell vard. Incidentally, this movement departed

from Allied Chemical & Dye Company plant at 3:26 p. m.,

and arrived at Hopewell vard at 3:52 p.m., the difference in

elapsed-time being due to the stop topick up the twenty cars.

And no operation took place on that particular move-

ment other than stopping and. coupling on additional cars?

A. That was the only movement; there were no’ other

movements Involved,

No cars were cut out of the train? ~

A. No.

(). Or rearranged in any way?

A. None whatsoever,

;

(). What was the distance from the starting point to the

interchange? In other words, vou started out at Allied

Chemical and vou went to the interchange? _ .

A. It is approximately midway between the Allied Chemi-

cal & Dye Company plant and Hopewell vard, perhaps not’

‘quite midway. | would ¢say it would be closer to Hopewell

yard than to the Allied Chemical & Dye Company plant. [

can’t find in my notes the exact distance between the inter-

change track A Hopewell vard.

[fol 20] Q. But vou say it is ApPrOnuGnely hallway :

A. Yes, I would. a

() Including the stopping for the pie king up of this

alditional string of ears, what was the average speed of

that movement?

A. The notes indicate that five minutes aaeedl at the

interchange track at which these twenty cars were picked ap,

soif we subtract five minutes from twenty-six minutes, the

total time elapsed) between Mlied Chemical & Dye an!

Hopewell vard is twenty-one minutes, and slightly over ten

miles, That would be approximately—-forgive. me while |

inake these computations,

(). Take your time, now.

ry That should come ont to ai average speed Of six title

an hour,

(J. Explain in greater detailexacth: what oceurred at that

interchange track. |

A. As we arrived at the interchange track the movement

stopped at the clearance point of switch which led to the

interchange track. At this point the engine was detached

from the cars it had brought from Allied Chemical & Dye.

It moved over -the switeh to the intereh: Inge, then onto the

track, coupled to the cars on that track, pulled them over

the track and pulled them over the swite h to the cars anl

dS SOOM as they liad coupled ont de parted. for Hopewell

vard,

frol 2b] Q. Making no steps en route?

a No stops en route, ;

Ch AU right. sir Continue on with the next movement,

please. sin. .

A. DT have a movement Which. took place on the 6th of

March. This moyement was from Hopewell vard to the

rants of Allied Chemical & Dye and Continental Can Com

pany. It consisted of Engine 1758 with eight cars ahead of

the engine and fifteen cars behind the engine, for a total of

twenty-three cars. This movement departed from Hopewell

vard at 11:57 aloe. and arrived at the industrial plants,

Continental Can and Allied Chemical & Dye, at 12:15 p.m.

with no stops en route. Total elapsed time of eighteen

minutes.

Q. That would make an average speed of what?

A. 1 would say that would put the average between five

sae seven miles an hour. ;

And you rode this particular movement yourself? ?

\ Yes, | did.

Now, these locomotives vou are hore ing to through-

a a Whole thing were all Seaboard Air Line locomotives,

were they not?

A. They were, ;

[fol 22 | Cross-examination.

bv Mr. Hunton:

Mr. Meyrick, vou have described in your direct testi-

mony certain crossings of streets and of the Norfolk &

Western Railroad tracks. Ave there any spurs leading off

of this track into industrial tracks along the way, and if

so, Would vou be good enough to start at the Continental

Can end there on Dupont Street and number the tracks as

they lead off into the industrial plants?

A. May T take the map again?

Q). Certainly. Which one would you like?

The one on which we originally marked,

(The exhibit was landed to the witness. )

A. (Continuing) | have no notes of industrial tracks:

consequently, bam reconstructing this trem. memory, Mt

this point the Seaboard Air Line freight house, and immedi

ately bevond this there is a track—that serves this—and

immediately bevond this there is a warehouse, | believe, at

Which TP noticed a number of cars vesterday. That would be

No.2. Pthought that would more likely be between Terminal

Street and Randolph Street, rather than where [located it.

Then, moving toward Llopewell vard there is a grade cross-

ing with the Norfolk & Western Railway at this point.

re, —— pa" «er i tii ali sll — —

However, this track Is also accessible from the Seaboard Airy

(fol. 25] Line track. [ noticed there at that point vesterday

‘there were several tank cars at some sort of industry. -[

-would not say it was an industrial plant, but it is some sort

of a delivery track. This main line here, which I do not have

in my notes, FE can’t comment upon. As the map indicates,

this point at which the Norfolk & Western Railway crosses

the Seaboard: Air Line at grade, the track is also accessible |

from the Seaboard track and the map indicates that this

particular track leads to Tubize Artificial Silk Company.

I have no reason to suspect that the map is not correct. |

have not gone into that in any great detail.

(). There is likewise a Seaboard track going in there,

isn’t there?

A. Yes. That track would be used interchangeably by

sc of the two railroads. |

. It does belong to the track that you are talking about?

Lam sorry, Lam not in position to establish ownership

of that track.

~(). Well) which tracks are you in. position to shone the

ownership of, as shown on the map?

A. Actually, if T were to have to introduce evidence to

o— ate ownership of any of the tracks, | could not do it.

Then, vou are just guessing as to Which are Seaboard

. +; < and which are Norfolk & Western?

fol. 24] A. Lam going on the basis of certain fixed sienals

there whiéheare used exclusively by the Norfolk & Western

ut Sayers crassing, to establish ow nership.

Didn’t vou indeate this track soing into the Tubize

Pe As ial Silk Company?

A. Well, these Norfolk & W eters Railroad fixed signals

are What is called a stop board, which means that before

Norfolk & Western engines come to that crossing, they

must stop hefore proceeding. |

* * + * *. a 7

- .

(fol. 25) ©. Would vou identify that point that vou are

referring re in some way?

A. Approximately here (indicating).

(). For the record, mark that with an X, if vou will, please,

(The witness made the indication on the exhibit.)

A. fdon’t know where that track leads, but it does paral

lel the Norfolk & Western Railroad track leading to the

Hereules Powder Company. . )

A. Then, from that point we proceed to that point at

Which the Norfolk & Western Railway crosses the Seaboard

Air Line at grade, and there is another switch and a track

which parallels His Norfolk & Western Railway track,

Which leads in this direction, which would apparently lead

to Hopewell China Company, from this ma).

(), Mark that with Y. will vou, please?

AL After we cross Palm Street we come toa wye switel:

(fol. 26] whieh be ads. to the Hopewell Subdivision main

trae ‘k.

(). Now, all of those are industrial spurs, are they, that

You have testified te? .

A. Pwouldn't say that this is an industrial spur: I don't

know where it le ads: it is at spur track. Nor can T state that

this isan industrial spur. bE would state |

Q).. What boaskhed vow was if vou. would start «at. the

Continental Cau Company and point out and enumerate the

industrial spurs branching off from the Seaboard between

tliat point and the classifieation vard, up here.

A. From positive knowledge, all Lean state is that there

are three tracks whieh might be considered industriz!

tracks, . |

() Which are those?

\. The one which serve ~ the freight house, the one Which

serves: the warehouse and packing plant located between

Terminal Street and Randolph Street, and one at this point.

at whieh I noticed Ove ral ti mk « ears Vesterday,

(. Do vou know whether all of the tracks shown on that

Mipeare within the vad limits of the Seaboard at Hopewell?

[fol 27] OAL Tt is my understanding that they are.

(). What passenger service is there on tue trae ‘ks in ques

tien, Mr. Meyrick? .

A. None,

tie. 2Oe —_——— _—, - ee

(). On the tracks in question, did vou make any inquiry

aus to where the trains, if they are trains, came from and

went to?

A. Would vou clarify that just a little bit, please ?

(). Tsay. on the tracks complained of in the complaint in

this case and the movements complained of on the tracks

overWhich those movements went, where did tie trains

come from and go to?) What was their point of origin and

point of destination?

A. The points of ortgin and destination would depend on

the direction of movement. The movements to the plants

originated at Hopewell vard with delive ‘ry to Allied Chemi-

sr ‘. Dve and Continental Can,

This point, the classification vard.

o. So that all of the movements were within the vard

limits, were they not, of Hopewell?

A. Yes, they were,

(). Now, let me ask vou this question, Mr. Meyrick : Stat-

ing at Continental Can Company, how far are the tracks

of the Seaboard paralleled by the tratks of the Noreen &

[foi 2s) Western Railway?

AL You want me to indicate a pomt onthe map?

Q) Yes. sir starting at the Continental Can Company.

AL Well, let as assume that this is Continental Can, It is

not very well defined at this point. The Norfolk & Western

gps parallels it from here,

. Putan A there at the beginning, if vou will, pleasy.

. (Marking the exhibit} From this point along ~

rae tand around this curve .

(). Wt passes the Seaboard Freight Station, does it not?

A. It aloes. Then across ‘Terminal Street, across Ran-

dotph Street: the Norfolk & Western classification vard ts

appro\imately at this point and the tracks are roughly.

parallel to one another and at this interchange track they

are still parallel, and the Norfolk & Western Railway shas

a track wiieh TP ounderstand serves the Hercules Powder

Company and would parallel the Seaboard track to. this

point. é

Q). Which is just north of Palm Street, [ believe, is) it

not? |

A. Yes.

~. Mark that B, will vou, please?

All right (marking on the exhibit).

~ When vou were there or March 5 and 6—I1 believe

Pr 29] were the dates—did you observe any movements

on the Norfolk and Western track parallel to the Seaboard

track? .

A. DT believe there were movements, but T didn’t pay any

particular attention to these movements. At some point

hetween where the Norfolk & Western begins to parallel the

Seaboard and where it stops, Lam positive there were move-

ments on those dates which PE must have observed but to

Which T paid no attention.

Q). Did vou notice whether the air brakes were connected

on the Norfolk & Western trains?

[fol 30) A. TF did not notice,

By Mr. Hunton:

(). You were there for the purpose of observing whether

or not air brakes were connected on trains operating in

(fol. 31) this vicinity, were vou not?

Pe Only Seaboard Air Line trains.

Why did you only look at the Seaboard’s?) Are vou

Fes nee solely to inspection of Seaboard Air Line trains?

¥ * *

(). Why did) you examine only the Seaboard Air Line

. | was investigating a specifie complaint alleging non-

Use ive train brakes on transfer movements on the Seaboard

Air Line Railway in Hopewell, Virginia.

Q). By whom was the complaint made? '

= The Brotherhood of Railway Trainmen.

To whom?

: It was made to our office in: Washington.

. Isnt it your duty to make this inspeetion withont

respect to complaints?

A. Not when specifically instructed to investigate a por

ia 32] ticular complaint.

. What were vour instructions with regard to this, then,

mh, ” Meyrick!

* A. To investigate the complaint I have previously out-

lined and to render a report and if, in the opinion of Inspee-

tor Rey and myself, the provisions of the law have been

v iolated, ‘to submit evidence for prosecution of the carrier.

Q. Have you got a copy of the complaint?

A: I don't have one with me, no:

Q. Can you get a copy?

A. 1 can get you a copy of my instructions,

- \ Have you got a copy of your instructions?

A, I don't have thosé with me, no, but I edn provide those.

Q. Were you instructed to investigate, the operations

eenerally, or were you instructed to investigate a specific

movement? )

A. Twas instructed to investigate thé transfer movements

in question and to determine, in conjunction with Inspector

Roy, whether the air brake provisions of the safety appli-

ance law had been violated.

Q? It is a question of your judgment of whether they

have been violated?

[fols. 85 "7 . Have you any instr uctions from the Inter-

state omumotee - ommission as to what constitutes a viola-

tion on which you are to form your correlusions?

A. Would you be « little more specific, please?

[fol 3s]: ‘By Mr. Hunton:

(). Mar. Meyrick, are there any imstruetions to vou from

the Interstate ( ommerce Commission as to what is to deter-

mine whether a movement is a swite ‘hing movement ora

train movement? .

AA. As vou have pointed out, it is very poorly defined, but

it'is our opinion that any movement of a substantial number

of cars between two points with no stops en route to set out

r pick up would be deemed a train movement:

‘By the Court:

(). With no what?

A. NO stops en route to either set out or pick ap cars.

2 33

By Mr. Hunton:

(). I repeat my question : You say that is your opinion?

A. That is one of the opinions.

(), And the other opinion is that it may be merely a

‘switching movement?

A. No, there isn'ta doubt in my mind, that it was a train

movement. \

Q. I say, there isa contrary opinion, isn’t there?

_[fol. 389) - A. Yes—vours.

Q. Tliat is right. Are there any rules of regulations or

anything published by the Interstate Commeree Commis-

-sion for your information?

A. No, sir.

Q. Or for the information of the railroads?

A. No. For that matter, it is my understanding that

these eases are based upon past court decisions, and that is

about all T have as a guide.

Q). All right, siv. Ail hat « Cases have you read? W hat « cases

are vou relying on?

A. Not specifically on any case in particular, May T.

outline the procedure?! :

Q. Surely. That is what ] am trying to find out.

A. We inspectors in the field are expe ted to investigate

- a situation, evaluate it to the best of Gur ability, and submit

‘our findings to Washington, at which time these findings

gre subject to further review, and if in Washington they

are satisfied that the evidence. is conclusive enough, they

a lodge the complaint for a prosecution of the earrier.

Now, vou said that whether these cases were brought

Wits sp keed ae upon conrt decisions, did vou not?

A. Would you repeat the question? ;

Q). That previous court decisions determined the question |

[fols. 40-44] of whether these questions were brought.

A. That is a factor. : .

Q). Now, what‘are those court decisions? Do vou know?

A. T'*m sorry, IT can't state specifically.

(). Have you read any of them?

A. I have, Yes,

°(. What ones are you relying on?

A. I’m sorry, 1 ean‘t tell vou. -

Q. Have vou any record of them?

A. T have notes at home.

Q. You haven't got anything with you here?

A. No, I haven't.

[fol. 45] Q. Mr. Meyrick, TP hand you a copy of a ed

dated Richmond, Virginia, Mareh 9, 1956, to Mr. C. W.

Taylor, Director of Safety and Service, luterst: oa Cine

meree Commission, Washington, Dp. C.. and ask if that

letter was written by vou?

A. Yes, it was, in conjunetion with Inspector Roy.

Q). T notice in reading this letter that vou call attention

to the fact that in seme of these movements cars were

pushed by bias locomotive as well as being pulled by the

locomotive? :

A. That is right.

(). Would it mmake any difference in your conclusions if

they were not pushed, but all pulled?

A. L consider the pushing of cars amore hazardous than

the ptHing of ears behind the engine.

Q). Tsay, would it make any difference in your conclusion

that this was a train movement if it were all pulled insfead

of being part pushed and part pulled?

A. It woukd not. Px.

(). T notice, alse, you say the distances iacotted 3 in move-

ments from Hopewell vard to the plants of the Hercules

Powder Company and the. Celanese ( ‘orporation are short,

[fol. 46] well under a mile, and not of sufficient length to

be deemed train movements ; consequently, these movements

are given no further consideration in this report. Those

movements also ¢ross the same streets,.do they not, within

the actual space, as the movements here complained of ?

A. Herenles Powder Company?) Tunderstand the move-

ments te Here ules Powder € ompany are handled ewelusively

by the Norfolk & © Western.

Q. Then, why did you mention them in your report of

Se alone v iolations ?°

AL Beeanse they were nie ditioncdl j in mV istructious,

4. Then, your instrnctions did cover the Norfolk &

Western? :

AL No, sir, The movements to Herenules and Celanese

were among those alleged to be train movements,

Q. By what line? a

A. The Seaboard Air ‘Line Railroad.

\ .

Q). And you found out. they were Norfolk & Western?

A. The one to Hercules is handled exclusively by the

Norfolk & Western and the one to ( ‘alanese is a Seaboard

movement,

Q. As fF understand it from reading your report, you

disregarded the movements to Hereules. and Celatiese be-

cause they were under one mile in length?

A. They were short movements, ves.

[fols. 47-49] Q. At what distance,:then, does a movement

become a train movement and not a shifting niovement?

A. There again, there is no hard and fast rule.

Q. There areashifting movements of two miles in length,

-are there not? be ee

Shite A Onn. i, a or

Ifol. oO] By Mr. Hunton:

Q. So that the same number of cars. with the same ar-

rangement of its air brakes, or lack of operation of its air

brakes, moving over identically the same traeks and the

same crossings, would be considered by you in one instance

asa ftrand movement and in another instance as a switehing -

movement; is that correct?

A. You have. not phrased that entirely as | would. We

have not moved over the same number of crossings if we

deliver only to the Norfolk & Western interchange.

Q. No. Lam talking about between those two points, the

Norfolk & Western interchange, and the so-called Hopewell

vard—the same number of cars, the same locomotive, the

same number of loads—in one instance with the brakes

coupled and in another instance with the brakes uncoupled.

In one case you say it was a train movement and in the

other vou say it was a switching movement, merely beeause

[fol. 51] it. would beva train moveme nt if it went beyond

that point. ne

By Mu. Slipek:

Q. " that what you said-- merely because it went beyond

that point? ; +

A. Not ‘merely because it went beyond that point, but

because the movement was so much longer.

By Mr. Hunton: »

(). Well, how far ‘beyond that point does it have to go

before it becomes a train movement? —

A. Tam not prepared to say.

(J. Does it have to go ten feet!

A. Lam sorry, I could not-say. :

(). All right. Lét’s start at this end. Suppose it stops

when it reaches the track leading into the Allied Chemical,

on the north of Dupont Street. Would it be a train move-

Inent. then? oe

A. Would you trace the movement you. have in mind,

ph ‘ase?

(). Yes, sir. The same movement that you talk about and

sav is not to be considered a train movement, except to go

to the Allied Chemieal plant.

Mr. Slipek: May it please the Court, what these hypo-

thetical questions have to do to aid the Court, T simply

don’t know.

[fol. 52] bé determined, so far as the factual issue is con-

cerned, a matter of opinion?

Mr. Slipek: The Court’s opinion?

The Court: Yes, sir.

Mr. Slipek: Yea, sir.

The Court: W eH, the Witness is an inspector, who has had

two and ai half years’ experiencé m making inspections.

I would like to know his answers to the questions. I would |

have to form my opinion somewhat upon the opinion of

others, to a certain extent, and, never having conducted a

sWitehing operation myself, I have to be guided by the testi-

mony hereSPhe witness is Fomewhat of an expert. [think

the examination is proper.

* , vs - * » *

[fol oo] By Mr. Tlunton:

(). Mr. Meyrick, in vour letter of March 9 you say: ‘‘The

distances involved in movements from Hopewell yard to

plants of the Hercules Powder Company and the Celanése

Corporation are short, well under one mile, and not of

sufficient lefigth to be deemed train movements. Conse-

quently, these moveme nts are, given no further considera-

tion in this report.’

Now, [ say, assume exactly the same movement and

extend it a half a mile; does it become a train movement!

A. A mile and a half? ;

Q. A half a mile beyond what these are that you de onwet

consider train movements on the tracks here in question,

A. I think, actually, now, you are asking for my epinion !

Q. That is all I can ask for, sir.

A. I think, actually, a movement from Hopewell yard to

the Norfolk & Western interchange track, With no stapes en

[fols. 54-58] route to either set out or pick up cars, could

be considered a train movement, but I think it might: be

difficult to prove, and, as has been already brought out,

these are more or Jess individual decisions.

By the Court:

(). Mr. Meyrick, let me ask you this question: From Hope-

well yard to the interchange, I believe you say, you cross

two railroad tracks and the intersections? :

A. Three road crossings, and two railroad crossings at

grade.

Q). Those railroad crossings—when T say ‘railroad cross-

ings’? 1 refer to the movement of the train in question—the

highway crossings and the railroad crossings, three of one

and two of the other; that is five. Are they any more or any

less dangerous crossings or titersections than those be-

tween the interchaige track and the Continental Can Com-

pany? Are they of a different type, I should have perhaps

said, ; .

A. Basically, they are the same. I would be hard put to

differentiate between them. As far was highway traffie is

concerned on the rail-highway crossing, that would vary

according to conditions, which, would also hold true on the

raibroad crossings -at grade, and it would be very difficult

to pinpoint it.

[ fol. 59] Reddircet examination.

iv Mr. Slipek:

(). Now, directing your attention to all four of these train’

movements simultancously, was any of them a= sorting

operation?

A. None.

~Q. Was any of them a selecting operation?

A. No.

Q. Was any of them a classifying operation?

A. No. .

(). On the last question you stated that if there was some

movement in the classification yard, you would not consider

it a train movement?

A. That is right. .

Q. And it is there that the sorting, selecting, and classify-

ing take place? .

A. Yes.

~Q. I think in general I understand you to say » at if the

train left the Hopewell classification yard and proceeded

on to the Norfolk & Western interchange track, you, in your

‘opinion, would consider that at train movement?

A. Yes, I would.

(). And your superiors might not deem it a sufficient case

(fol. 60] for prosecution; is that right?

A. That is right.

Q. And in your opinion and from your experience and

knowledge of the type of operation, you would classify

that as

Mr. Hunton: If Your Honor please, | have not been

objecting to the leading questions because of the absence of,

a jury, but I think counsel has gone todo far and I do object

to that question.

The Court: I think the questions are definitely leading,

Mr. Slipek.

By Mr. Slipek:

-(. Did L understand you to say that if the train left the

Hopewell vard and then proceeded non-stop—that is, a

locomotive with a string of cars attached—to the Norfolk «

& Western, you would consider that a train mov ement?

aA. Yes, I would. :

“Mr. Slipek: T will stop right there.

That is all. Thank you very much.

By the Court:

(). Perhaps I misunderstood the quotation from the let-

ter, or report. 1 thought in that report you expressed the -

opinion that it would not constitute a train movement.

A. May I be permitted to clarify that?

Q. Yes, sir.

[fol.61] A. Inspector Roy and I concluded that due to the

length of the movement, our office would not be interested

in prosecuting it because it would be a hard ease to prove,

because it was a short movement. My own opinion was that

movement of the ears from the classification yard to the

Norfolk & Western interchange could be nothing but a train

movement.

The Court: I see.

* Reeross-examination.

By Mr. Hunton: '

Q. If T may read the paragraph in questi6n again from

the letter: “The distances involved in rhovements from

Hopewell vard to plants*of the Hercules Powder Company

and the Celanese Corporation are short, well under one

mile, an! not of sufficient length to be deemed train move-

ments. Consequently, these movements are given no further

consideration in this report.’

Do T understand you now to say that vou do consider

them train movements?

A. I did, under. those ¢irecumstances, but 1 did not think

my office would aecept them and, consequently- —

(). Then, may To ask why you wrote this letter to the

Bureau of Safety and said you did not consider them train

movements? “

[fol. 62]. A. IT said that due, to the length of the trains |

thought it would be a hard case to prosecute.

(). Well, why didn’t, you say that, instead of saying they

would not be deemed train movements?

A. TL suppose, actually, it is just a question of phrase-

ology. |

Q). Take vour letter there and read it over and Jet me

know how much of it is just a question of phraseology and

how much of it is not—how much of it vou meant and how

much of it you did not mean?

A. Do you wish to refer specifically to this. first para-

graph again?

(). No, sir; I want tie refer to the whole letter.

A. I. would let it stand as it is.

Q. That is the only paragraph, then, that you repudiate?

A. I don’t repudiate that.

Q. Well, what do you do with it?

A. My personal opinion is, if I were to make the decision,

] would consider it a train movement.

Q. Why didn't vou so i to your superiors in Wash-

ington? '

A. The report is dated Murch 9 and I do not remember

too many of the circumstances connected with it. I do feel

that the motivating factor was that it would not be con-

[fol. 68] sidered a good case because of the short movement.

Q. But you do feel that the other movement would be a

good case because it would be. twice the length?

A. Yes.

Q. And that is the only difference between the two,

isn’t it? | |

A. Yes.

Mr. Hunton: I have no further questions.

By the Court: is

Q). Is there any difference in the grade between the Hope-

well yard and Continental Can, or is it all pretty much the.

same grade —level ?

A. There is no perceptible difference. There may be

some difference in grade existing. That IT have not gone

into with the Engineering Department, but the difference

in gerade is not perceptible. ‘

+ . 7 . . . .

| fol. 64] Redirect examination.

Q. What increase in hazard is incurred by the fact that

~ the run is longer? | . TOS

A. I do not really believe it is an increase in the actual

hazard involved, but the fact that it is easier to prove it is

a train movement. Tn other words, if it comes to a trial,

T think the position ts that it is easier to prove a long move-

ment a train movement than ga relatively short movement.

tween, the two, or which you call a distinetion between a

short run and a long one, assuming that. they have practi-

cally the same terraimand the same approximate intervals -

between crossings? What would be the distinetion between

the two?

A. Well, there is a greater nunrber. of crossings to be

[fol..65] traversed and, consequently, there is an‘ increase

in hazard, but to what extent, T would not be prepared to

say. That. too, would vary with conditions at the time of

the movement.

; * : * a ‘i . *

Cnester KB. Roy, called as a Witness by and on behalf of

the plaintiff, and being first duly sworn, testified as fotlows :

Direct Examination.

By Mr. Slipek:

(). Mr. Roy, state vour name, residence, and occupation,

please. 7

A. Chester KE. Roy, Inspector of Safety Appliances, Inter-

state Commerce:-Commission, Washington, D.C.

Q). Tell me, sir, how long have vou been so employed ?.

A. Approximately six-years. |

(). In that same capacity?

A. Yes, |

(). What was vour occupation prior to your present serv-

ie with the ICC?

A. L was employed in train service as a conductor and

[fol. 66] brakeman on the. Kentueky and Tennessee Rail-

road, ’

Q. Over what period of time?

A. From 1922 until 1951, near the middle of 751.

(). Almost thirty years?

A. Approximately.

* * ¥ * * * *

(fol. 67] Mr. Hunton: May it please the Court, this gentle-

man is also an inspector and made the inspection with the

original witness, Mr. Meyrick. I am perfeetly willing to

stipulate that lis testimony would be the same and that he

would testify to the same facts, to save time. -

Cfol. 68] The Court: He has been in the courtroom and has

heard the testimony of Mr. Meyrick.

42 :

That is correct, is it not, Mr. Roy? .

The Witness: Yes, I heard the testimony.

By Mr. Slipek:

Q. Well, after hearing the testimony, if you were called

upon to testify further in connection with these four par:

ticular offenses, would you say, sir, that your testimony

would be in substantial accord: with the t testimony of Mr.

Meyrick?

A. My'testimony will substantiate his testimony in regard

to these particular movements, but there are one of two

other items that I would not substantiate; that is, all these:

Various questions.

Mr. Slipek: Very well, sir. | 9

May it please the’ Court, in view of the statement just

made with regard to stipulating that his testimony would

he the same, we can go ahead and have it so admitted, sub

ject to the reservations that he has now made, and we could

then go into the subject of the reservations.

The Court: Is that agreeable, Mr. Hunton?

Mr. Hunton: That is entirely agreeable.

The Court: Very well.

fol. 69] By Mr. Slipek :

(). Now, sir, vou stated that vour testimony would vary

in some particulars from the. testimony of Mr. Mevvick.

One-by one, will vou enumerate or spell ott the differences !

There is a skeht variation ino the computation of

distances. May | refer to these notes?

The Court: Yes, sir.

A. (Continuing) Computing the distance from the en

trance to Hopewell yard—that was the last switeh just off

of Hope ‘well Street—to this interchange track was roughly

JOST feet, We arrived at that figure by walking it, tallying.

the rails, and multiplied by the- standard rail length of 3°

feet. My notes show that itis 77 rail lengths from the switeh

in Hopewell vard to the switel leading onto the interchange

track. That is one point..

(). Before we goon to the second point, will you, with this

re al pencil, Madicate the position of the switch at the: Hope

well classification vard?

A. Now, which switch do vou mean?

(). From where vou started your computation.

A. We did not use any of these distances down in here.

‘ We started at this switch, at this point, here.

(). Make a big X there. Label it Switch,’ if vou will.

\. (Marking on the map) We continued on down—Do

(fol. 70] vou have that marked *tInterchange’’?

(Now You trace it the best vou can. Just take all the

time vou need. .

AL There is Hopewell Street. TP have a sketeh here that I

made from niv notes, which is rough—-very rough,

() Albright. sir. Consult vour sketch,

\. Here is Palm Street and N. & W. Railroad. This

shontd be the interchange track right in here, | Would say,

I think this is it, right here. |

Q). Orient yourself in connection with it and make your

* sure, ;

. This thing is turned bae kward to me,

. All vight. Turn it aay way ven would like.

A. Lam looking at it upside down.

That is the area von walked; is that right?

A. Yes. This should be the interchange, right along in

here, in this vieinity. Tam not too familiar with this map.

It is alone in here somewhere. .

(). A want vou to put the swite)i on the interchange.

X. Well. from this Matp) Dam. still not sure that Is your

interchange,

(h. Wello maybe if Feould get another map, be vou think

ver could locate it more readily on the City of Hopewell

rianp?

(Usneding the witness another may.)

fol TE) ON. This interchange is right.in this vieintty, right

in there somewhere,

Q) Put adie N there. :

\. Richt there Gmarking@on the map).

(9 Now, vo hack to the classification vard, You were

talking ebhout the distanee from the Hopewell classification

vard to the interchange switch. Will vou please continue?

You were telling the Court the differences between vour

testimony and that of Mr. Meyrick, and the last point of

difference was the distance from the switch at the classifica.

et I rr oem At EN AE OI AI 2 ee - UCr

i . e

tion vard in Hopewell to the switch at the interchange track.

That brings vow right up to where vou were,

A. The difference is not in the testimony, but my notes

I wanted to testify, that Is. niv notes show, that this distance

Was dipproximutely 2087 fect as computed by us.

(). Now, have vou finished with that distinetion ?

AS That's right. Tam through.

A) Will vou. then, goon to the next point of difference?

A. Phere is no difference in the testimony between what

I would have to offer and what Mr. Meyrick said. The only

point that was not brought out was in connection with the

No & W. Railroad tracks.

(). Well, what about it?

[fels. 7272) A. The No & W. Railroad together with the

Seaboard Air Line serves these industries down ino the

Vieinity of Continental Can, Allied Chemical, and Nitrogen.

The cars to be delivered from the Seaboard to these plants

are classified and bunched in the Seaboard classification

vardat thopewell. Phe cars that the No& W. Railroad places

to thesessame plants are classified and bunched in the N. &

Woovard at Topewell. the cast end of which is dlmost ad

jacent owell, TP would say it is almost equivalent to the

Randolph Street crossing. That is the crossing that is pre

tected with gates. So. trams from the No & W. delivering

to this plant would originate at this classification vard at

Randolph Street and weald traverse approximately 4,000

foot, that ds,parallel with the Seaboard tracks leading inte

the plant, which world be under a mile distance.

‘-

Mr Stipek: Do vondave any other distinctions or differ

entiations to make? \ ;

The Witness: Phat is all TP have.

ffols. 74.75] Rov BE. Keas, called as a witness by and on

behalf of the defendant, betne first duly sworn, testitied as

follows:

Direct examination.

By Mr. Hunton:

[fol. 7H] (). Mr. Wean, would vou he cood enough to de

sertbe to the Court the crossings, both of highways and of

other railroads, and the spur tracks breaking off from the

Seaboard tracks from the Continental Can Company to the

Hopewell classification vard, please, sir?

A. Starting at the Continental Can Company, there are |

four tracks which break out into this plant, two of which -

_are contrelled by the Norfolk & Western Railroad and two

of which are controlled by the Seaboard. The two tracks

controlled by the Seaboard. whieh lead: in a southward °

direction to the switches at the plant of the WWhed Chemical

& Dye Compaiuy, some 5,000 fect, are known as the Hummel.

Ross lead and the Roosevelt track. These are the two oper

ating tracks that we use. There is a track breaking to the left

into the Solvay Division of the Allied Chemical plant. There

isa switch breaking to the right that goes into the Allied

Chemical & Dye. tn addition to the Norfolk & Western and

the Seaboard operating over these tracks “into both sides

of the plant, the Alfied Chemical & Dye also has engines

Which operate in that area, and there is a common road

crossing known as Lopewell Street. where there is a CTOSS-

ing at grade with the Norfolk & Western Railroad and a

[fols. 77-79) road crossing. You continue southward—no,

that first street is Dupont Street and then vou have Hope-

well Street. You continue south and on a’slight curve to

Terminal Street, whieh is State Road No. 10, whieh is a

crossing at grade protected by gates manually operated by

What We ferme crossing watchmen.

(J. Is that the main traveled highway from Hopewell to

Petersbure ?

AJ OWell. frankly, don’t think so, Your TFonor. There is

some travel that way, but that is the main traveled way

between Richmond and Norfolk, and farther southwest, is

State Road 36, whieh is the main traveled road between

Hopewell and Petersburg.

(). That is the one that goes in by Camp Lee?

A. Yes, sir.

(). This ix No. 10?

A. Yes, sir,” |

(). It goes down toward Smithfield and Surry?

AL That is right; down in that area, there.

[fol SO] By Mar. Hunton:

() Mr. Kean. is there any passenger service to Llopewell?

A, Ae passenger Service,

Isy_the Court:

Dosany of these tracks between the one terminus and

the other which have been discussed today ‘arry through

trains? |

~A. None at all, Your Honor; all switching movements.

). All switching movements?

\. Yes, sir

(): No through trafic goes through there?

\. No, sir.

(). Nothing is brought over those tracks by a train in the

ordinary course of operation?

A. No, sir, FE Wwervthing in this area is moved between

our assembling yard, which ¢s across Hopewell Street, which

is just opposite the Hereules plant, and the various indus-

tries out in the Hopewell area

[fol. 81] By Mr. Hunton:

Mr Kean, are there any trains or cars delivered by a

locomotive from a point toward Bellwood beyond the Hope-

well yard limits that-do not stop at the classification yard

in Hopewell?

A. There are none, no.

By the Court:

(). Let me askvone question there. If incoming freight

consigned to Hopewell comes in, it-goes first.to the chassifi-

cation vard? wea

A. Uf To may deseribe it this way, an incoming freight

train terminates at the classification yard and there the

work is taken over by the vard or switch engine crew, which-

ever vou may want to call it, but that is the terminus of the

freight train.

The Court: TP see. si re

Iv Mr. Hunton:

(J. What happens to the train when it arrives: at the —

classification yard so far as the distribution of cars’ is

—vonce rned?

fo oANS The cars are switched and blocked scteedine to ‘the

consignee intended.

By the Court:

(). Is this swite hing vard used by both the Seaboard and

ak Norfolk & Western?

[fols. 82-84] AL Nop sit ‘There are two separate opera

ae over there from a switching standpoint.

» This interchange is where--—-

: T hat is where we interchange cars between the two

lines.

Q: And not in your switching vards?

A. It is what we know as.a designated interchange track.

(). But that is not in the switching-vard proper, is it?

A. It is within the switehing vard limits. [| will have to

= Benen A

What. TE mean to say is that it is not-within the ¢ ‘lassifi

eS vard?

A. Oh, no. ;

The Court: | was using the term incorrectly myself.

by Mr. Hunton:

Mr. Kean, if vou would point out to His LLonor on the

plat the location of the Seaboard Classification vard and

the location of the Norfolk & Western clas@ification vard

I think that might clarify it.

By the Court:

(). The Seaboard classification yard ‘is right here _(indi-

cating) ?

[fol. 85] By Mr. Hunton:

Q. Now, Mr. Kean, what is the speed limit for the Hope-

well vard area of the Seaboard?

A. In our. Operating Rules our moyements are termed ,

‘Yard Speed,’ which is the ability to stop within one-half

the range of vision.

Q. Have vou the rule book containing that rule?

A. Yes, sir, which rule is defined on page 11 of our eur-

[fol. 86] rent Operating Book.

By the Court:

Q. When you refer to range of vision, that will vary, I

assume, over the track?

A. Oh, ves, and wehther conditions.

Q. At points your vision is much farther than at other

points ?

A. That is right.

Q). As coming around a curve?

A. That is right.

By Mr. Hunton:

- Q. What is the rule to which veu referred? Read it into

the record, please, sir.

A.-It is our Yard Rule No. 93, which reads in part as

follows: >

‘Stations having vard limit boards: will be desig-

“nated in the time tables and by special instructions and

the liinits will be indicated by wayside signboards read-

ing * Yard Limits.’ Trams and engines must not exceed

yard speed on moving ow yard tracks. *’

That is found in our Rule 93, page 31 of the current Rule

Book of Operations,

Q. Do you know whether or not-the yard at Hopewell is

so marked? |

[fols. 87-88] A. It is; yes.

Q. And is the yard at Hopewell so designated in your

operatthy time table?

A. It is, and the current time table is Issue No. 4+ which

Was issued effective December 3, 1956.

By the Court :

Q. Well, what about this rule concerning operating so

you can stop within half the distance of visibility? Is that

a written rule?

A. Yes, that is a written rule, found on page 10 of the

"Rule Book and the definition of ‘speed’? is ‘ta speed that

will permit stopping within one-half the range of vision.’’

[fol. 89] By Mr. Hunton:

(). Who determines when a train, or one of these cuts of

cars, or Whatever you call it, is to move out of: the classifiea-

tier yard toward Continental Can?

A. That, of course, comes under the immediate jurisdic-

tion of the agent, Mr. Morrison.

[fols. 90- 1) Q). And who determines when a similar move-

ment in the reverse direction, from Continental Can, is to

be made ? | )

A. Again, that would be the immedin TSSUPCrVISOF, | M:

Morrison. '

(). Hlow does a train crew know where ty. stop. and cut off

cars, if any, or where to pick up additional ears?

“AL Generally speaking, it is based on the listing of the care

and on the instructions received from the agent, who is Mr.

Morrison.

[fol. 92] .Q. Mr. Kean, approximately when was the line

established by the Seaboard into Hopewell?

“A. To the _ of my recollection, it was 193% or 1932.

(fol. 93] Q. ko vou have records with respect to accident»

that may have occurred avithin the yard limits of Hopewell?

A. The records indieate that in 141 there were two

-erossing accidents invelving a train and vehicular traflie,

one at Hopewell Street and one at Palm Street. There was

another accident, in 1944, on the crossing at Hopewell

Street, and there was another accident at, Palm Street in

1054. That is the only record we have of any accidents

occurring in that area. |

By the Court :

Q. Were they collisions with motor vehicles!

A. Yes, sir.

By Mr. Hunton:

Q. Did any of those accidents occur at a time when air

brakes were in use? ,

A. Strangely cnough, the one occurring in 1954 occurred

with an engine and twelve ears in whieh there: were air

brakes im service,

Q. Did the others occur when air brakes were used?

A. Air brakes were not in serviee.

By the Court:

Am I correet in understanding from your answer that

at p Sao air brakes are in serviee in these movements upd at

other times they are not in service? .

(fol. 047) Mr. Hunton: Twas going to develop that, if Your

Honor please, right now.

The Court: I beg your pardon.

By Mr. Hunton:

Q). Will you state over what period of time these move.

ments into Hope well yard have been handled with air brakes

in use and over what perion of time without the use of air

brakes?

A. Air brakes were first 1 sed on these movements in

Hopewell vard September 7, 1951. They were continued up

until January 10, 1956.

By the Court :

(). Prior to 1951 they had not been used at all?

A. They had not been used at all:

Now, along in the first part of September, there was a

visit made to. the Hopewell Terminal by Inspectors Roy

and Dennis, I believe, ‘at which time they voiced the opinion

that the air brakes should be coupled on these movements

and the Seaboard acquiesced in their request, and-that was.

when it was first started. On January 10, 1956, mostly for

operating reasons, we discontinued coupling the air on these

Cars “and went back to the old procedure of operation, which

resulted in the visit of Inspectors Roy and Meyrick on or

about Mareh 5 or 6.

| a5 | Ry Mr. Hunton:

Q. W m did you start using air brakes again?

A. Pending the decision in this particular ease, we

started back to using air brakes on-Mareh 10, 1956.

Q). What has been the effect so far as time-is concerned in

the use of the air brakes?

A. It has affeetedthe work in that it slows the work

down, beenuse, as has been deseribed: here this morning, the

overall movement is slightly in excess of two miles. For

-example, you have a eut of cars, regardless of the number

but we will take the average number of twenty ears, leaving

the classification vard, on which all of the air hose have got

ta be laced and the train charged

(). Explain to the Court the technical terms ‘laced’? and.

eee

. The air hoses are the hose between each car which

mus ni he coupled between cach ear and, after that, they are

coupled to the air hose on the locomotive w hich, in turn, is

attached to the compressor and pump and that charges the

train line for the purpose of applying and releasing the

brakes. Normally, vou can figure fifteen to twenty minutes

longer in getting a movement started, and then when you

reach the ultimate end of the trip, or the run that you are

‘making, before these cars can be switched out it is necessary

that you then go along and bleed, by means of a bleed cock

[fol. 96] which is attached to the reservoir and the air

brake system on the car—the air has go to be bled off on

every one of those cars and normally you can figure twenty

minutes longer on that. So, on each movement that we

operate we estimate that it takes, forty minutes longer to

make the movement than if we did not make the movement

with the air brakes coupled.

Vv the Court:

Q. Does it require additional personel?

A. Yes, sir. In faet, for the first time in ‘the history of

the operation at Hopewell, we had to put oi five engines

over there due to the operating difficulties we were running

into over there, due to this and other things, which is two

more than we ordinarily work over there. a,

().. That-was on account of the difference in time?

A. It was due to'this. Of course, there were other things

entered into it, too, but thix was one of the contributing

factors. |

bv Mr. Hunton:

What is vour estimate as to the increase in cost in the

use of air hose?

A. Well, we figure. with the crew wages alone on a switeh

engine crew if costs us ten cents an hour, and where three

<witeh engines— and T-believe it has been running that,

approximately ten moves are made between these various

(fol. 7] industrial locations and the ward. Figuring ten

moves at forty minutes te the move, that is 400 minutes.

You gan very readily see, if vou have nearly an eight-hour

minimum day. it will cost vou around eighty hours a day,

and based on/365 days acvear, it is running in the vicinity

of $50,000 a vear for erew members alone.

By the Coprt :

Q). That is for mentions) crew members that you would

ret necd otherwise?

A. That is right.

. . 7 . .

{fol 9S) GQ. Mr. Kean, do vou go to Hopewell frequently?

A. Oh, ves.

m3 Have you seen the trains of ears and locomotives of

the Norfolk & Western?

A. Oh, Ves,

(). Operating parallel to the Seaboard?

A. Fea.

Have vou observed whether they operate with air

brakes or without air brakes?

A. They operate without air brakes.

Q. Have you ever seen them operate with air brakes on

the Norfolk & Western in this particular area?

A. Not to my knowledge, no,

By the Court:

(). Mr. Kean, do vou have a record with re-peet.to in

juries to erewomembers in these operations .during the

period When you oper: ated with and When you operated

without air brakes?

A. We have had only two tijurjes that have oeeurred

over there, tomy knowledge. and neither of those was cue

Inoamyvowas te the movement between tdustries and the

fol OO} ela-sifiention vard. Tn fact. these injuries that

ocenired, one of them oceurred froma man getting off of a

cardi the process of switehing in the classification vard, and

the other one occurred when ao mam permitted bis arm to

SHipoand ane ina grabeiren while be was swinging on the

she. -

(). Ca, the car moving?

The car was moving, but it weuld not have made iy

difference at all beeause bis hand slipped onthe grab-iron,

Q). You mean Hes ‘voare the only Injuries vou have had in

the vard over there

AN. They are the er ones | know of.

(). Both of them, were on classification movements?

A. Both of them were on classification movements.

(). You had no injuries in this movement from the classi-

fication vard over to the industry?

A. Not that TL know of, Your Honor.

[fol. 100) Mr. Hunton: No further questions. The witness

is with you. 7

(‘ross-exXamination.

sv Mr. Slipek:

~Q. Mr. Kean. TP believe vou stated that Route No, 10

was on Terminal Street, didn’t vou?) Did T understand you

correctly :

A. Possibly T did. ¢

(). | would dike for you to consult a map and see if that

is Still your answer,

A. No, that-is incorrect. Route 10 is south of Terminal

Street. .

(). What street does it run over?

A. Randolph Street,

Q). Very well. hank vou, sir.

Now, vou read to the Court from the hook certain yard

rules,

A. That is right.

Q. Are vou tellin ev the Court that those vard rules are

alw: aves ohe fi “ll, ‘min? :

A. To the best of my knowledge, TP have got to answer

that Ves, |

[fol POL} GQ) Albright, <tr. Thank vou.

Now, directing vour attention to the four accidents- | de

net have the dates von say inone vear there were two?

In 14D there were twe, one at Palm Street and one at

Hopewell Street. Tray have the month on that for vou,

(). Neo, that ix net essential Now. the next one occurred

when?

AL 144.

). And that was at Hopewell Street?

AL Hopewell Street, ves, sir.

). And the next one oceurved at Hopewell Street?

A. Nov at Palin Street, ‘4.

By the Court:

(). Is Palm Street the crossing which has the manually

operated —- . ia * F

A. Nogsir, Randolph Street, or Route 10, The protection

of these crossings where the accident occurred is the

standard cross-buck signs.

et. @

hy Mr. Slipek:

Q. Phe only street that has manually operated protection

in Randolph Street?

A. That is right.

Q. And the others are protected by the cross-buek sign?

[fols. 102-107] A. The others are protected by thie cross-

buck Sign. . a

Q. You stated, ** Mostly for operating reasons, and other

reasons, we have discontinued the use of brakes."* When

was that? *

A. That was ur January; on January, 10, 1956.

Q). What were those operating reasons that-you have re-

ferred to here?

A. Trouble—

Q. Outside of the time element.

A. The time clement detinitely was involved.

Q. What other reasons?

A. Welk the operating reason was the dispateh and the

receipt of the traffic coming in-and out of that area. There

Was an dinerease, TP would say, of some thirty or thirty-five

pereent in business in that particular area along about this

tithe. |

[fol Tas} GQ) When vou discontinued the brakes, then,

What vou actually did) was equate the safety factor against

the expense foetor and decide to dispose of the Arising ix

that riche?

NON no time didi the equasion of the safety factor

natist the Np Se factor enter inte the argumeat. We

were trving tacoperate a rathroad,

(0. dl von consider the safety factor? .

A. The facet that there have been no aceidents and: ie

injuries ~ ocenrriile toemplovees and the Jaet that there lave

heen so few erossing accidents or veieuhar’ accidents, |

think, -peatks for itself.

. Did you take safety into consideration ?

‘ My friend, we alw: IVs take safety into consideration,

Then, did it enter into: your deliberations as to whether

you 8 discontinue these brakes or not?

A. Would vou restate the question, please?

Q. | asked vou whether vou considered safety and Vvour

answer was that vou did. .

A. We always consider safety.

Q. And properly so. The next question was, Then you

[fol 109] did take safety into consideration when you de-

eided to dispense with the use of these air brakes?

A. Definitely. we did.

Q. What were vour thoughts then on the safety factor,

at that time?

A. My thoughts were that there was no undue or unusual

risk, and that is borne out by the fact that during the sixty-

dav period that we did operate there without the brakes:

nothing unusual happened; there were no injuries and no

crossing accidents.

[fol 110} Jostra Re Toag, called asa witness by and on

behalf of the defendant, and being first duly sworn, testified

as follows: —

Direct examination.

sy Mr. Hunton:

* (). Mr. Hoag, wentth [you state your name, residence, and

occupations please?

A. Joseph Ro Tloag: Jacksonvilley Florida, is my rest-

dence: and my occupation, | retired from Civil Service em-

ployment and am doing a little work now for the Seaboard

ona monthly retainer basts.

Q. Before your retirement as a Civil Service employee,

What was your oecupation? y)

A. Twas an lispector of Safety ia aaa

_ And for what organization?

The Interstate Commerce Commission.

Q. How long were vou 1 employed in that eapacity, Mr.

Hoag?”

A. Thirty-two vears,

(). Prior to that, what was your -oceupation?

\. 1 was working on the Northern Pacitie for twenty

vears. Twas a brakeman and conductor and two vearsas a

TPraiimaster, . | |

Qo} think we have gone back far enough, Mr. loa.

Did vou. at the request of officials of the Seaboard, make

A [fol. 111] any Gxamination with respect to the movement

of trains, or cuts of cars, or transfer movements fPor the

classification. vard at Topewell to the industries between

there and the James River?

i idl.

[fol V2) Qk Was there aiiy difference between your

duties and these of Mr. Meyrick. who testified here this

morning)

A. No, they were the same duties,

Q. Mr. Hoag. would vou state, in the light of vour experi:

enee with the DPnterstate Commerce Commission, ‘what in

vour opinion Wires the nature of the movement from the

Hopewell classifieation vard to the Continental Can

[fol TLS} Company? fy |

AL Dondy made that ene inspection up there: TE have auly

been in Plopewell one time,-amad Toamade a report on it te

Mr. Stone. Lean read to vou iy report if vou eare to hear it.

Did vou consider it oa train movement, a swite Wing

movement, a transfer movement, or what?

A. Leonsidered it a switching movement.

\ Q). Did vou <e advise the Seaboard Air Line:

A. Yes.

Q. What were the factors that led vou to that conclusion?

A. Well. T figured it was merely a switehing movement

for the distribution of cars to the different industries around

Hopewell and was controlled by vard speed, which was: a

ee, speed that enable them to stop within sone- half the range

oof vision. T believe two railroads crossed at yvrade. Those

) railroads were spur tracks of the other line and they were

protected by fixed signals, namely, a stop board on that line: -

where their trains had to step before crossing over, the

Seaboard tracks; the Seaboard had the right of way. The

most important crossing was protected by gates. The other

hs — re

crossings were protected by railroad crossing signs, what

we call cross-buek signs, and the speeds being so slow and

the number of cars Tasked about the average number of

ffols: P14 115) cars thatewere handled in the train and they

said if would run around twenty-five cars, the average nam-

ber, and, moving at vard speed, | figured the engineman

could control the speed of the train and stop within one-half

his Yange of vision and there would be no danger in the

movement. les

(fol. 116) QQ. Ts the question of whether the movement

takes place on admain dine or on a vard track material?

A. Not toomuch, A violation can take place on a yard

track provided that there are safety hazards on it and other

trains using it, and whether the view is good, and whether

the speed is -regulated on that track.

—Q. Is the fact that other trains move from one destination

to another a material considerition—between two stops,

sav? .

AL Yes. it is a material consideration, but it is not a

binding fact. ; .

Q. In determining whether it is a train movement, does

the question of whether there are movements on regular

-chedule enter into the question?

“AL Yes, it. would have something to do with it:

Q. Tf the movement were a scheduled movement, would.

vou consider it more likely to be operated as a train move-

ment oras a shifting movement ?-

A. T would be more likely to treat it as a train movement.

LYol 117] Cross-examination.

By Mr. Shipek :

. a * * *

= * .

[fol lis} Qo. dP wanted to clarify that in my mind. Thank.

vou, sir. Then, sir, vou have no knowledge of your own in

regard to the four movements with which we are concerned

today?

A. No, sir.

(). None whatever?

A. None wlhiatever.

Q). And vou did not render an opinion on these particular

four movements, did you?

A. No.

‘

Q. Isn't it true that in your duties as an inspector for the

ICC you could have a non-seheduled movement and it would

still be held to bea train movement rather than a switching

movement?

A. Oh, ves. Extra trains are non-scheduled trains on any

railroad, . .

Q. And isn't it true that in the course of vour duties the

yard speed vould be exactly that in the book and it could

still be held to be a train movement instead of a switching

movement?) Do vou understand that?

A. Repeat that. |

(). My question is this, sir: In your investigations. con-

[fols, 119-120) ducted while you were an ICC inspector,

isn’t it true that you could have had a situation in whieh

the train and the cars maintained the vard speed and vet

it could be considered to be a train movement instead ofa.

switching movement?

“A. Oh, Ves,

Q. And that would be likewise true even if there were a

switching crew-on the train?

A. Yes.

Q. And it would aise be true ne matter how many cars

were on It isn't that right?

A: Yes

. 7 hastiil is what Twas getting ut. May IT see that booklet,

plese a |

A. (Handle d to counsel) Do you want me to open it?

Q. No, sir, but-will you tell the Court the date of that

hooklet, please?

A. Tt is July 1940,

Q. Isncteit true that there have been some changes in

that book and some supplements to it-sinée that time?

A. Yes, very true. There is a supplement issuéd every

vear, :

Q. And these supplements do sometimes contain changes,

do they not?

A 3m.

‘rol. T21]) W. FL Mornisox, ealled as a witness by and on

behalf of the defendant, being first duly sworn, testified asx

follows:

Direct examination.

By M r. Hunton:

J. State vour name, residence, and occupation, please.

A.W. F. Morrison; residence, Hopewell, Virginia: ocen-

pation, Agent for the Seaboard Railroad.

(fol. 122] Q. How long have you been Agent for the Sea-

hoard at’ Hopewell, Mr. Morrison?

A. Since Mareh of 1954. <¢"

(). How long have you been employed by the Seaboard?

: Since January of 1957,

(). State briefly. if vou will, please, what your duties ar®

1s agent of the Seaboard at Hopewell. - ”

. The supervision of the entire terminal.

That is the reason [said ‘*briefly..*) What in general

re those duties?

A. Well, the supervision of the yard, the ageney, the

mechanical department, and any problems that may come

up with the gompany.

(). What is vour relationship to the movement of ears

mtaoroutof the Seaboard classification vard at Hopewell?

A. Well, we issue instrictions te our vard people as to

the destination, as to where the ears on the outbound move

cond on the inbound move, as to what ‘industries they are

foo be placed at. OF course, we aceept the orders for the

lends, and where to he spotted, and what empties to te

minced,

Q) For instanee, in-connection with an order for cars to

move out oof the Atmospheric Nitrogen plant of Allied

Chemical how would that order be handled with vou?

fro dopo AL Well, sir, the plant farnishes us with a list

with the correct initial and number, and that information is

LH on to the vard people to vo to the plant and pull

these ears and line them upon the train accordingly.

Q) State whether or not that movement of the engime

(

comes under your jurisdiction, ?

A. You, ab. .

Q). Where is vour office, Mr. Morrison?

A. The office is in the freight station.

(J. Where is that with reference to the classification vard

and with reference to the Continental Can ompany plant?

A. Do you mean in distance?

(). Yes. Approximately how far is itt{rom each of those

vines, one at one end and one at the othgr?

A. Well, | would say approximatelyMalf a mile from the

Continental Can—I am speaking of the office to the vard

now—from the A.C.) Corporation

— QQ. And where is the office with respect to the interchange

for the Nortolk & Western?) About how far apart are they?

A. Just about two blocks from the Norfolk & Weste en.

Tam speaking-of their office, now.

Q). How far is it from the interchange track?

A. Less than half a mile. ;

[fol. 124]. Q. Haves there been any accidents during the

time that vou have been the agent at Hopewell. either erosy-

ing aecidents or injuries to traine personnel, Seaboard

emplovees ! | ee

WA. As to the crossing accidents. there has been none, sir,

Now, vou say injuries to the Seaboard personnel?

- ?

(). Yes, to emplovees,

A. We refer toa personal injury, now. A traimman step-

ping down from the sill step deft his arm hanging in-the

“rab-iren. That had nething to do with the movement of

the train. ? a

(). Where did that oceur? f

\. One was in the classification vard and the other was

inthe Cabtrack. The train had come toa complete stop and

The dnan stepped down and left his armain the grab iron.

Q. What are the protections provided at the several,

street crossing wy) TP believe it has heen testified that Route

TWerosses the Seaboard track here ip Hopewell. .

AL Yess Thats the Randolph Road erossine.

Q). What kind of crossing protection is there?

A. They have gates. naa

Q). And what is the crossing protection provided at the:

other street crossings?

They have cross-bucks.

-@). That is the

A. Cross-arms,

the Continental Can Company's plant arid the classifieation:

vard? he

= Do vou want me to name them?! /

If vou can, yes, sir, and use thy plat if vou want to

iteeat your memory,

X. No, sir, | know them from memory.

Coming off the Hamimel-Ross lead, or the Continental Car

load, first, proceeding to the vard, we cross Dupont Street :

next would be the Terminal Street crossing: next, Randolph

Road; vour footpath; another little crossing going into

Wag sntneue doesn't even have a name; then vou come over

» Hopewell Street: then vour ratm Street crossing: and

— enter the vard.

Whieh is the most heavily traveled of all iese!

t Of course, the Randolph Road crossing is the Inost

heavily traveled,

(). How about the Terminal Street ‘crossing?

Volume of traffie is up there?

- | could not give*vou the exact number of ears---——-

If you could give something in comparison with the

Randolph Street crossing. That is what I mean.

A. Oh, there is practically nothing there as compared

with Randolph Street? Randolph Street is the main high-

wav there, :

1). How about the Diepont Street crossing?

[fol t26] A. Well, ef course, your cars coming from the

plants, or clruployees of the plants going back and forth

through there, there is considerable traffic through there.

C0 What times de changes of the traftie oceur?

AN. To would siiv in the morning around seven a. m.. and:

the the afternoon gets lpr or four-thirty, when thre plants

are age ineing shifts, r three-thitty.

. What is the ciae: -I don*t mean the precise hour, ut

When are these movements into and out of the Allied Chemi-

cal& Dye and the Continental Can generally made?

A. Normally, the movements into the plants are made ie

theommorning. Phat ts the delivery ef the empties.

). At what time? , :

A. We have to get in thereat ten a. m., and coming out,

putiiue the loads im the afternoon, any time from four:

ocloek up to seven or eight at nighttime.

[fol. 125] Q. How many street ~—o are there between

low much

the volunte of traffic there as. compared with the Randolph

Street crossing?’ ya

“AL The Hopewell Street crossing Is the crossing that

handles the traffie that moves into the Hereules Powder

Company plant. That is practically all the traflic that moves

in there.

Q). What time does the traffic move into and out of that. -

[fol 127] plant, generally?” °

a » Prior to eight a. m., and at four o’clock in the after-

noon; between three-thirty and four in the afternoon.

().\[ think vou said that there was a footpath in there. By

whom th used? - -

\. I thik some of the people that live in B Village over

there use it to go-to the groe ery store. It is just°a little old

path that they have been using there for years. 1 don't

know of anybody. that actually uses it other than those

people that live avound there. ers

Q). Now, the next crossing, 1 believe, .is Palm Street,

isn"t it? |

A. Palm Street, is correct. :

Q. What is the traffie on Palm Street as compared to/

Randolph Street?

A. Well, the Palm Street en oe is much lighter than the |

Randolph Street traffic, because the people going to Peters.

burg. leaving the Hereules plant, come aeross Hopewell

Street and come up Palm Street and head toward -Peters-

bure and Colonial Heights. That is mostly in the afternoon,

too, and in the morning: |

(). What is the next crossing, please ?

A. Going into the vard?

(). Going into the yard. | .

ry Palm Street would be the last one.

[fol 128] Q. What is the one*before that?

A. To beg your pardon. It is Hopewell crossing, going

into the yard. Palm Street is the one just prior to that.

(). What is the plant that has heen closed down and moved

if South Ameriea?

A. Well, that ts the old Tubize. Celanese Corporation is

the one that moved to Charlatte.

Q. Which street serves the old Tubize plant? .

A. Well), sir, the Pahn Street crossing, which Crosses our

tracks going into the Hereules lead track, and also the lead

of the Norfolk & Western going into Hercules.

Q. Mr. Morrison, where is the Norfolk & Western i

located ‘that serves the Allied Chemical plant and the Con

tinental Can plant?

A. Its adjacent to our track, right there at the freight

station, going into the plant.

(). Does if run parallel or across your tracks?

A. It runs parallel by the freight station |

Q). Can you see the ‘trains moving onde Norfolk &

Western tracks fronr your office. window ?

A. Definitely so, sir.

Q. Can you see whether or not the air brakes are con-

nected on those trains?

A. Yes, sir. .

Lrols. 129-132] @. In your observation, have you ever seen

the air brakes connected on those Norfolk & Western move-

ments by your window? |

A. Not to my knowledge, no, sir, not, going into the plant

or coming out, no, sir, a . ae

(). When I was in the office the other day, did you notice +

ae Norfolk & Western train passing?

= Yes, sir.

. Was the air brake connected on it?

Z It was not, nos sir.

Q. W here was that movement on the Norfolk & Western

going?

A. Sir, they were pulling empties out of the plant at

that time.

Q. What plant was that?

A. Allied Chemieal & Dye. — : a

lroh Wo] Reporter's Certificate to foregoing transcript

omitted.in printing,

[fol. 4] Is Usrren SATES Court oF APPEALS For 1HP

Fourruo Circuit. ,

No. T)54

Uxickp Starks or America, Appellant,

versus

Seaboany Aik Link Watunoaw Company, Appellee

Appeal from the United States District Court ‘for the

KRastern District of Virginia, at Richmond ~

Argued March 6, 1958.

Before Sobeloff and Haynusworth, Cireuit Judees, and

Wiliams, District Judge

Mdwin J. Slipek, Assistant United States Attor ney, (L.

Parsons, Jr, United States Attorney, and Henry “8

Hilzinger, Attorney, Interstate Commerce Commission,

on brief) for Appellant, and Lewis Thomas Booker and

Kppa Hunton, IV, (Hunton, Williams, Gay, Moore &

Powell on brief) for Appellee.

[fol. 135] Orixnton--Decided June 320, 1958

Hayxswortn, Circuit. Judge:

This is a proceeding under § 6 of the Safety Appliance

Act (45 US.CLA. § 6) to collect the statutory penalties

- for violations of the Act. ‘The violations are said to have

oceurred when,on four ogeasions, 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 ULS.CLA,

$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 ino Hopewell,

Virginia, where the movements ove urred,

Hopewell, Virginia, is served by a branch line of the Sea

hoard whieh connects. with the main line at Bellwood and

terminates at Llopewell. Incoming trains from Bellwood

arrive atea classification vard 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 Lope

well fora total distance of approximately two miles. Nine

spurs, springing from the lead track, serve industrial cus

tomers whose plants aire adjacent to them, and some of them

ave used for car-starage. The spur, or customer lead, track

most distant from the classification vard serves .a plant of

{fol, 136] Coutinental Can @o., while the one seeond in dis:

tance from the classification yard serves a plant of the

Allied Chemical & Dye Co. A track for the interchange of

rate with the Norfolk and Western also springs from the

lead track at a point approximately midway between the

classification vard and the end of the lead at Continental

Can Co,

The Norfolk nnel Western las lead tracks paralleling the

Seaboard lead throughout most of the length ‘of the latter,

and several of the Norfolk and Western industrial spurs

eross the Seaboard lead track. At such crossings, the Sea

hoard has the right of way, and Norfolk and Western crews

must bying 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 earrying a substantial amount

of trafic, is protec ‘ted by a watchman and manually operated

eates. The crossings of other streets and ways are protected

only by stationary signs.

There is no perceptible erade on th. Seaboard lead, and

all movements over it are-at vard 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 vard and the assembly

of cars to be made up, in the classification, yard, into out

Hound trains.

When an incoming train has been broken up in the lassi-

lication vard, 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 erew proceeds to

distribute the cars over the lead track. Those consigned to

(fol. 137] 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. ne ause of the specialized needs for different types

‘of cars,’ the crew may be required, enroute, to pick up cars

from storage tracks and place them upon other spurs for

loading. On the return trip” the switching ¢rews pick up

from the spurs loaded outbound cars and enrpty 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 fo the classification vard as circumstances may require. |

Outbound cars are then made ap 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

hecomes a train movement if only the more distant spurs

are worked. Thus, the charges here are based upon two

movements from the classification vard to the Continental

Can lead track without intermediate stops and upon two

-movements from the Allied Chemical ‘ead track to the

classification yard during at least one of which there was

(fol. 138] an intermediate stop en route to pick up addi

tional cars from the interchange track. -

' Most of the material delivered to Allied Chemical & Dye,

for instance, is in coal hopper cars and boxears, but most of:

its product is shipped out in tank cars.

* It is possible that the operation in the two directions

may overlap to some extent. Lf cars are to be delivered to a

spur and other cars picked up from the same spur, it may

he that both operations would be performed at the same

time, but the record before us does not disclose the prac tice

here. ;

*On one of the movements toward the classification vard,

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 ears and arrived at the

classific: ition yard with forty-nine cars. On the other ques

The fact that less than all-of the nine spurs may be worked

during a partifflar moveinent has no controlling signiti-

cance, 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 vard 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

he worked or those, thecbusiness 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 de fondant moved (cars) between designated

eee in its vard for a distance of about 2 miles without

picking up or setting out any ear enroute,’ the movement

[fol. 1380] must necessarily have been a train movement

requiring operable train brakes. Substantially every switch-

ing operation involves such movements, wht for com-

parable distances, but they take on the appearanceof train

movements only when lifted from their context of switching

oper ations and se yy arated 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.

tioned movement in that direetion, records of the railroad

indicate the engine left the Allied Chemical lead track with

four loaded and ane empty, car, stopped at the interchange

track fo piek up one loaded and twenty empty cars and

arrived at the classification vard 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 vard to. the

(Continental Can lead track were of twenty-eight: and twenty-

three cars, respectively. In cach of these movements, some

of the cars were ahead of the engine and other s were behind

it.

GR ° : | | - ’?

Thus viewed; we agree with the District Court that these

anevements were properiv classified as switching move

ments. In the average day there were ten of such move

ments, and they do not fall into separate categories solely .

upon the basis of & classification, in terms of relative dis-

tance from the classification yard, of the spurs) worked,

The lead track, the spurs that break from it and the classi-

fication vard are all parts of one vard, and its extremities

are not so distant as to deprive a movement from one end

of the vard to the other of the favor of its function in break.

ing up anid making up trains.

Unlike other sections of the Safety Appliance Aet 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 rim,

-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 opera-

tions, during which there is little or no need for train brakes

and general and strict compliance with the “requirement

[fol. 140] .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. Uwited States v. Erie Railroad Company, 237 U.S. 402,

BOS. Ct. 621, 50 LL. Ed. 1019, and, a-week later, the Supreme

Court declared the controlling’ test to be ‘tthe essential

nature of the work done.’ United States v. Chicago, Bur-

lington & Quincy Railroad Company, 237 U.S. 410, 35.8. t.

634, 090 1. ld. 10238.

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. Fune-

tionally, a transfer movement between separ: ated vards: may

he 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

reasous for the train brake requirement are present. Train

brakes are ustally—required. ins such movements. United

pale Vv. Erie Railroad Company, 237 UL S. 402,25 S.Ct.

G21, 50 L. Md, 1019: United States v. Chicago. Burlington

& Quincy Railroad Company, 237 U.S. 410, 35 S. Ct. 634.

oO LL. Kd. 1025: Louisralle and Jeffersonville Bridge Co. v.

United States, 249 UL S. 554. 39-8, Ct. 355, 65 LL, Ed. 757:

United States vNerthern Pacific Railay Company, 254

UL S. 251, 41S. Ct. 101, 65 LL. Md. 249: Chesapeake & O. Ry:

Co.vi United States, 4 Cir, 226 BF. 683; Mimois Central R.

Cov. United States. s Cir, 14 F.2d 7475 Chicago GE, R.Co.

v. Cnited States, 7 Cir. 22 BF. 2d T7203; United States -v.

Southern Pacific Co., 9 Cir, GO FL 2d. S864: Cited States v.

Southern Pacific Co. & Cir. WO BF. 2d O84. Movements for

the distribution and collection of cars have been held sub-

ject to the train brake provisions when conducted over main

dine tracks, Uvited States v. Pauhaudle & Saute Fe Ry. Co.,

dD Cir. 205 BL 2d 241s United States v. Thompson, Trustee,

[fol. 141] S Cir, 2o2 FL 2d 6, but similar movements over

vard tracks have generally been held to be exempt switching

operations. United States v. Great Northern Ry. Co,, 9 Cin,

73 BL 2d Th6; United States ve New York, Cod St. L. Ry. Co.,

7 Cin, 77 BL 2d 215; United States ve Elgin, Jo EL Ry. Co.,

7 Cir, IS2 BL 2d 1s United States v. Chicago, Burlington &

Quincy RCo. 7 Cir, 199 BL 2d 223; United States ve Penn-

sylvania Railroad Co., DW. C.. Meal SOB. Supp. 965; United

States v. Great Northern Ry, Co.. W.., Wis., 103 F. Supp.

S80; United States ve Staten Island Rapid Transit Railiedh

Company, hk. D X.Y. 151 BL Supp. S11. CR. Cnated States

ve South Buffalo RL Co., 2 Cir. 168 F.2d 948. Even though

— the movements with which le was concerned were over main

line tracks, Judge Hutcheson, now Chief Judge of the Court

6f Appeals for the Fifth Cirenit, held that the train brake

requirements were inapplicable because of the short) dis-

fanees between the spurs to) be worked. United States vx,

Teras & NL OOK. Co. SoD. Texas, 15 FY 2d 429.

The movements here were not over main line tracks, nor

even inter vard connecting tracks. They moved, entirely

within the confines of one vard, over a lead track only two

miles lone from which there sprang nine spurs and an inter:

-change 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-uplof others, we are

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 alongsjde classification tracks is equally

exempt. Delivering cars to spurs is no less typical of

[fol. 142] switehing than classification, and the considera-

tions whieh exelude the one from the train brake require

ment are applicable to the other, Movements over the lead

track, from one spur requiring attention to the next, are an

inseparable part of the switehing activity, when the lead

track is used, in fact, asan ifitegral part of a vard 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 emphi isis in the dulilincion of the case has

heen upon the crossings of streets and of spurs of the Nor-

folk 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 coupile the hose. Consideration

of such crossings of streets and tracks is not irrelevant,

for they are a part of tlie 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 move-

ment crosses a highway or spur track. Many an industrial

spur-erosses.a public or private way, but spotting a ear on

such a spur does not become a line haul on that aeeount.

Movements over or across main line tracks may stand upon

adifferent basis, where the switching movement becomes

a potential hazard in the operation of main line trains, but

crossing other vard tracks is a common incident in switeh-

ing and their ownership by another railroad is not a sig

nificant circumstance. . .

[fol 145] - 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 vard tracks of another railroad. On

the contrary, it is conceded that movements over these same_

crossings are exempt from the 1 requirement if shifting is

‘

done relatively near the classification yard, a cireumstance

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 exeuse a failure to use them because of

‘tthe use of other,devices and measures, however effective in

-assuring safety tliey 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 meas-

ures would be necessary to decision, but it is not even con-

tended 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 move

ments 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 Con-

[fols. 144-145] gress or needlessly chip away major por-

-tions of the long established) exemption” of switching

operations.- - 1 oo |

Affirmed..

Separate opinion by Sose.orr, Circuit Judge, concurring

in part and dissenting in part.

[fol. 146] Is Usrrep Srases Cocurr or APPEALS FoR THE

Focrru Cirevre

No. 7334

Uxrrep Srares or America, Appellant,

versus

SEABOARD Af Line Haiiacap Company, Appellee

Appeal from the Uhited ‘States District Court for the

Kastern Distr ict of Virginia, at Richmond

Argued March 6, 1958. Decided June 30, 1958

Opinion BY Sopecorr, Crrecir Jupce, Conccrrese mm Parr

AND Dissenting tx Parr —Filed>July 10, 1958

Before Sobelotf and Haynsworth, Cireuit Judges, and

Williams, District Judge >

Edwin J. Slipek, Assistant United States Attorney (L. S.

Parsons, Jr, United States Attorney, and Henry “Figg

Hilzinger, Attorney, Interstate Commerce Commission,

[fol. 147] on brief) for Appellant, and Lewis Thomas

Booker and Kppa Hunton, IV, (tfunton, Williams, Gay,

Moore & Powell on brief) for Appellee.

SoOBELOFF, Circuit Judge, concurring in part and dissenting

in part: ,

After four and one-half vears of operating its ‘railroad ¢

‘ars between the Tlopewell classification yard and the plants

of the Continental Can Company and Allied Chemical &

Dye Company in compliance with the airbrake provisions

of the Safety Appliance Act (45 U.S.CLAS See. 9), the

defendant, in March, 1956, ceased using are ‘fakes. IT g¢an-

not-agree that the change in practice was legally justified,

and after consideration. of the very persuasive majority

opinion, }am nevertheless constrained to dissent from the

holding that none of the four mov ements in question con-

stitutes a ‘train’? movement within the meaning of the Act.

As to three of them at least, those in which there was no

picking up or shunting of cars en route,’ the Act seems

clearly applicable.

The facts of the case have been painstakingly stated and,

with few exceptions, require no amplification. These ex-

ceptions are, however, crucial. It should be mentioned as

more than, coincidence that three of the four movements.

were accomplished without stops en route. The defendant’s.

own evidence is that Seaboard’s agent at Hopewell, Mr.

(fol. 148] Morrison, customarily receives lists from the

various industrial plants along the line, informing him of

the cars to be picked up by Seaboard. The ‘‘yard people’

are then issued instructions as to the cars to be moved to

and from-the plants. Therefore, as to the first movement in

question (count namber 1), when Seaboard’s crew coupled

together an engine and 26 cars at the Allied Chemical and

Dye Company plant on March 5, 1956, it was known to them

that they would proceed, non-stop, for a distance of two

miles, and, in the second movement on that day (count

number 2) and the one in petion which oeeurred the next.

day (count number 4), 28 and 25 cars, respectively, ‘were

assembled for. uninterrupted two-mile runs from the Tone-

well classification yard to the Allied Chemical and Dye

Company and the Continental Can Company’s -plants. Ex-

cept for their rele in the topographical setting, therefore,

the presence of a number of other closely-spaced industrial

spurs which may, at different times, be worked is irrelevant

to this ease. The fact that, on other oceasions, frequent

stopping and shifting of cars might make the process vd

coupling and uneoupling airbrakes utterly impractieal,

equally unimportant so far as the movements here ane

ure concerned. This - feature of the ‘ase should not be

ignored.

‘The question, then, is whether a train, to be subject to

the Aet, im: iv consist of a locomotive and 23 or-more ears

which have been either assembled from incoming trains or

picked up at one location, and which are to proeeed, non-

stop, for a distance of approximately two miles, where, at

1 Although there was a conflict in the evidence whether

one or two of the movements were interrupted by switching

operations en route, the Distriet Judge resolved the con-

flict by finding a Stop for switching in only one of the four,

he one alleged as the third violation. —

74 :

their destination, they are either unloaded or reassembled

into outgoing trains.

In terms; the Act requires airbrakes to be used on ‘all

trains... used on any railroad.’’ As my colleagues have

[fol. 149] observed, however, the Supreme Court, ina series

of four cases, drew a distinetion between ‘*train’’ and

‘switching’? operations, ruling that the airbrake require-

ment was inapplicable to the latter, and declaring the. test

to be ‘*the essential nature of the work done.’

The character and extent of the ‘‘switehing’’ omiiing:

and the relative weight due the various criteria in the ap-

plication of the ‘‘egsential nature’’ test, can’ best be aseer-

tained by examining and appraising the various contexts

in which they were judicially created and authoritatively

applied. Resort tothe Supreme Court cases, in some detail,

becomes necessary. os a

The first was United States v. Erie R. R., 237 U.S. 402,

decided by a unanimots Court in 1915. The defe ‘ail-

road operated a freight yard at Bergen, New Jersey, where

regular eastbound freight trains were stopped ahd broken

up and regular westbound freight trains madé up and

started. Following the break-up of the egsfbound trains,

and before the assembly of westbound trains, temporary

groupings of cars, known as “‘transfer trai is,’? were made

up and moved to and from two qther freight yards. The

first, the Jersey City yard, was TRated two miles from

Bergen, and the other, the Weehawken yard, three ‘and

one-half miles from Bergen. The trains ran only between

these yards, usually had about’ twenty-five cars, carried no

caboose, were operated by crews and engines specially en-

gaged in that. service, and at irregular intervals under the

orders of yardmasters, at speeds of seven to eighteen miles

per hour. Without using the requisite number of aiftbrakes,

nine transfer trains were hauled from Jersey City to Ber-

gen, six from Bergen to Weehawken, two from W eehawken

to Bergen, and one from Bergen to Jersey City. These oper-

ations, similar, to.the ones in question here, were held to be

(fol. 150], train operations within the meaning of the Safety

Appliance Act. :

It is, of course, arguable that a distinction exists between

the work done in Frie and the instant ease, in that the ears

here were being hauled to and from their ultimate con-

ue | OF. 95

signees, whereas in the Erre case, the cars received by the

Jersey City and Weehawken vards were then to be delivered

further to their industrial and commercial consignees. Such

a distinction, if suggested, would not be a valid one, and

the rie’ opinion itself refutes it. In summing up the deé-

cision in Erie, the Court, through Mr. Justice Van Devanter,

<aid: ‘*We, therefore, conclude. and hold that it (the air-

brake provision of the Safety Appliance Act] embraced

these transfer trains. Its applicability to this class of.trains

was considered and sustained in... United States v. Pere —

Marquette Railroad; 211 Fed. Rep. 220 [D. Ct. W. D. Mich.,

1913)...’ The approval and adoption by the Supreme ~ -

Court of the decision in Pere Marquette is signifieant, be-

‘cause the District Court held in that sai that the transfer

of a string of 17 cats, assembled from incohung trains which

ul been brokenfip, for-a distance of -two miles within the -

ceneral yard Mmits of the Citv-of Grand Rapids, the ears

to bet unlogyded at their destination, constituted a ‘‘train”’

movement within the meaning of the Safety Appliance Act.

Thus, as early as thé Erie case, it was decided that a ‘‘trans-

fer train’? may consist of a string of cars hauled a short

—«distinee for unloading as well as further forwarding.

A week after its decision in Erie. the Supreme Conrt

rendered its decision in the second of the pertinent cases,

Cuited States v. Chi. Burl. & Q. R. R.. 237 U.S. 410 (1915).

Again dealing with transfer trains hauled for a short dis-

tance (2 miles), this time around Kansas ‘City, Missouri,

(fol. 151] the Court concludes that the trains in- question -

Were ‘exposed to: the hazards*’ which the airbrake provi-

sion *twas intended to avoid or minimize,"? and the move.

ments were held to be train movements. P. 412. The rail-

road argued that the: work of moving the transfer trains

was being done by switching crews, and in answer to this

contention, the Court formulated what has become known

as the *tessential nature” test: ‘¢Neither is it material that ..

the.men in charge were designated as yard or switehing——

crews; for the controlling test of the statute’s application

lies in the essential nature of the work done rather. than in

the names applied against it.’??) P. 4138.

In the third of the Supreme Court decisions, Louisville

de. Bridge Co. xv. United States, 249 U.S. 534 (1918), mov-

ing, for a distanee of three-quarters of a’ mile, a string of

Y6 cars which had been assembled for delivery to another

railroad, was held to be a train movement. Mr. Justice

Clarke, writing for the Court, stated: ‘*An engine and

twenty-six. cars, assembled and coupled together, not only

satisties the dictionary definition of a ‘train’ of cars, but

would certainty be so designated by men in general and in

any fate acceptation of the term must be regarded as con-

ostituting a train within the meaning of the statute.’* P. 33s,

— the argument that the work done was merely

partof a switching operation, Justice Clarke pointed out

that the tatuee considered gencrally as constituting ex-

empt switehing movements, were not present: ‘*The work

done with the cars, as deseribed, was not a sorting, or se-

Jecting, or classifving of them, involving coupling and un-

coupling, and the movement of one or a few at a time for

short distances, but was a transfer of the twenty-six cars.

as aunit from one terminal into that of another company

for delivery, without uncoupling or switehing out a single

[fol 152] car, and it cannot, therefore, with propriety be

called a i movement."” PL 53s.

‘Finally, in. red States ve Northern Pac. Ry. Co., 254

tS. Zt 1S: oy. the Supreme Court was presented with a

fact situation almost identical to the one in question here,

and again without dissent, the Court held that the move-

thents Luvelved coustituted train movements. The history of

the Mortheru Pac. ease is interesting for two reasons. First,

the facts are more fully developed tn the Court of Appeals

opinfon ane, second, the Court of Appeals, which was. re-

versed. took the same approach to the case as have my

colleagues here,

Sonth of the main tracks at) Duluth, Minnesota, were

‘Several tracks known as the Duluth Terminal’’ or **D. TP.

Tracks.° They were operated as ao single yard, and ne

part of them was ever used by any trains running between

stations. freight or passenger, but, as in our case, they were

need “exclisively 2... to supply the industries along these

tracks with londed cars or empties to be loaded for out:

weing freight. for delivery to the main line.) 244 BL 655,

HoT, GOS. The trains were not operated according to fixed

schedules. but were meved under the vardmaster’s orders at

“neh speeds that. they could be stopped at vision. Two

strings of freight cars, consisting of 40 and 48 cars, respec-

tively, were run along this line for a distance of approxi-

nately 4 miles at speeds varying between three and eighteen

niep.l. The Court of Appes ls for the Eighth Cireuit thought

the ecarier Supreme Court cases distinguishable in that the

movements involved in those cases were along main Jine

tracks and not devoted exclusively to the servicing of local

industries, Affirming a directed verdict for the defendant

railroad, the Eighth Cireuit held: ‘* From these facts no

other conclusion can be reached than that of the learned

ffol. 153) trial judge, that these train movements were mere

<witehing operations, and therefore not within the airbrake

provision of the Act of Congress, as determined in the Erie

amd Chicago, Burlington & Quiney Railroad cases, supra.”’

255K. 655, 658, |

The Supreme Court, in an opinion by Justice Brandeis,

isaereed. It -held that the movements along the D. T.

Tracks in the Duluth area were movements of transfer

trates Within the doetrine of the three prior casessand were

hoi switeling. operations exempt from the Act. The Su-

preme Court found it ttmaterial’’ that the tracks crossed

two streets at grade: five tracks of other railroads, one

of whieh carried passenger trains; and that, for a distance

of about one mile, two other railroad companies, **under

the usual trathe-right agreements,’ also used the D. T.

Tracks for delivering cars to consignees, Although, at two

intermediate points along the DoT. Tracks there were

amd 6 tracks, respectively, where cars avere frequently set

outoor picked up by the transfer trains, the Court noted

that the two movements mb question were accomplished

without stops. The fact that on other occasions the locality

Was Used for switching operations was not permitted te

ontweigh the facet that at the times under imyuiry, no stapes

were mmade to swifeh cars? Tn our case, not only were there

no suel stops Dut, as before mentioned, three of the runs

were begun with the fore-knowledge that io stopping or

<witehing would be required.

In answer to the argument that the trains were not Oper.

ated on acnain tine, Justice Brandeis stated that if use of

oniain ine were essential, the requirement would be satis

lied Dw the presence of other freight trains, quoting the

lansirige of Justice Van Devanter ui the Chi. Burl a Q.

RoW ease that the defendant’ s trains and those of other

(fol. 154] railroads ‘‘ whieh the statute was equally de-

signed to protect," “were exposed to the hazards whieh

that provision was intended to avoid or minimize.’* 254 ULS,

Jot. ** But, continued Justice Brandeis, ‘there is nothing

inthe Act which limits the application of the provision here

in question to operations on main line traeks.2* Thus he.

made it plain that even if there had been no other trains *

using the tracks, the legal result would have been the same.

The inescapable rationale of the four Supreme Court

cases, as developed and refined in the Northern Pacific Ry.

Co. case, is that transfer movemigits, even of the nature

shown here (to and from industrial and commercial con-

signees), and even on tracks specially used for that pur-

pose, are train movements subject to the airbrake provi-

sions of the Act if they are not accompanied by the pick-

ing up and delivery of cars en route (which would neces-

sitate the frequent coupling and uncoupling of air heses),

and if-there is an exposure to the hazards which the Act

was designed to avoid or minimize.

Our inquiry should then turn te discover the purposes of

the Act and to examine whether the existing factual er

cumstances Involve the dangers sought to be avoided.

In Lowsrdle de. Bridge Co., Justice Clarke stated that.

it is the purpose of the Act to secure the ‘safety of em-

plovees, of passengers and of the publie. £27 2EY US. 934,

aos. Tn distinguishing between‘ passengers "and ‘the pub

he’ the Court made it.elear that, as interpreted by them,

the Aet was designed to extend protection to more than

emplovees and users of railroads. Viewing the general pub

he as direct and not meidental benetietartes of the Net's

provisions, the topographical setting of the Hopewell area,

especially the presence of intersecting streets and railroads,

[fol Loo) comes inte focus as an essential element in deter

mining the issue whether the activities involved are ‘train.

movements. 77 .

Passing to the details of the territory throngh whieh the

questioned moverments were mades it should first be noted

that ao number of tracks of the Norfolk and Western Rat

wav cross those of Seaboard at grade, and the Norfolk

nel Westernwhich also maintains tracks stuilar te Sen

board ’s here and whieh paratlel Seaboard ’s, uses the inter

~ecting tracks toamake deliveries of cars to the various in-

. ae 79

dustrie, along the route. Moreover, according to the testi-

mony of Mr. Roy HK. Nhean, Seaboard’s assistant superin-

tendent at Richmond, engines of the Norfolk and Western

Railway and the Adled Chemical.and Dye Company, asx

Well as those of the defendant, operate over the defendant ’s

tracks in the vieinity of Allied Chemical and Dye for a short

distance. '

Tn addition to private road crossings, five public streets

intersect the defendant's tracks. One, known as DuPont

Street, is the means of access to Allied ’s plant. Another,

Terminal Street, is the situs of the headquarters and main

fire station of the Hopewell Fire Department, which also -

houses automotive equipmert of the Hopewell Emergency

Squad. The evidence showed that vehicles of the Fire De-

partment have occasion to use the Terminal Street inter:

section, although there was no direct evidenee of there

having been interference, by the defendant, with the passing

of their vehicles. Randolph Street, also known as Virginia

State Route TO, is the mate antomobile route between Rich-

mond and Norfolk: It is a ‘heavily travelled’? road, and at

the point where it crosses the Seaboard trac ‘ks, there is a

sharp curve which materially restricts visibility of railroad

ears approaching the crossing From either direction. While

itis true that the crossing is protected by manually oper-

[fol. 156] ated gates, the Supreme Court in Louisville de.

Bridge Co, declared that the very presence of gates at street

crossings ‘serve[s] to emphasize the dangerous character

of the movement.?* 249 U.S. 534, 539,

Palin Street and Hopewell Street also cross the Seaboard

tracks, and the latter leads to the Hereules Powder Com-

pau plant, deseribedin the testimony asa ‘relatively large

plant.*’ These two intersections have been the scenes of

four collisions with automobiles since 1941, and three -of

them involved trains not having their airbrakes in opera

lion. ;

Although the Randolph Street intersection is the only

‘one protected with more than stetionary signs, as the Dis-

triet Judge found, fraffic over the street crossings varies

from moderate to heavy. The moderate traffie, which occurs

4tMbours coinciding with the usual hours of the defendant’s:

movements along the tracks, is by no means insubstantial.

The evidence, moreover, shows that Seaboard frequently

operates its trains with a number of ears in front of the-

locomotive as well.as behind it, thereby increasing the dan-

ger, Two of the movements in question here (counts 2 and

4) were made with 13 and 8 cars, respectively, ahead of

the engine. Because the engineer's range of vision is con-

sequently reduced, there is, in these situations, still more

reason for requiring the use of airbrakes. J. Re Hoag, a

‘retired LELC. inspector, who is employed by Seaboard as

Safety Consultant, was sent to Hopewell to survey thearea

sad in a fetter to Seaboard 's General Superintendent, he

wrote, “2... In cases Where any considerable number of cars,

probably more than ten, are pushed ahead of the engine,

then the air brakes should be coupled on those ears and a

}fol. 157] tail hose provided so the trainman on the le aiding

car can control the movement in case of emergency.”* He

vise advised that ‘‘there is no question that where air

brakes are coupled’ and in use on a cut of cars, quicker

stops can be made from any speeds.’’ ;

Since it appears that an important factor in the essential

nature of the work done is the potential hazard to those

Whom the Act is designed to protect, and sinee the Act has

been construed as having heen designed to inelude the ewen-

eral public in its protection, the sum of the elements in this

‘ase makes it more than evident that Seaboard has violated

the Safety Appliance Act as to at least three. of the move-

nténts in question.

The majority opinion relies on several cases which, under

facts similar to those before us, held the movements only

switching operations, exempt from the requirements of the

Act. Notable are three cases from the Seventh Circuit.

In the first of these, (uited States v. New York, Co & St. L.

Ry. Co. 77 Field 215 (1935), the Court cited Lowiscidle de.

Bridge Co. v. United States, 249 US. 534 (1919), as the

closest Supreme Court case, and distinguished it) on its

facts. The Northern Pacific case, 254 U.S. 251, which is

indistinguishable, Was apparently overlooked. Fifteen years

later, however, when (United States v. Elgin S. & EL Ry. Co...

Is2 F.2d 1 (1950), was before that Court, Northern Pacific

was cited to it, and the Seventh Circuit distinguished it on

the basis of there having been two street crossings and

five rail crossings at grade in Northern Pacific, whereas in

blaine, ho public streets or other railroads were crossed at.

erade, only two private roadways. The third case, United

Slates vv. Chicago, Bool . R. Co. 199 F.2d 223 (1952

gs — two vears after Alam. Although in ¢ iaretae.

Bok QO. one of the questioned movements was a two-mile

nok 158-100) straight roa wiach crossed two public streets

at grade, and rode over a track used by two through trains

passing between Bola and West Chicago, the Court never-

theless followed ifs decision in Klgie and held that it Wits

only a switehing movement. Again the indisputably con-

trary. Northerw Pacifie case went undistinguished and

unmentioned, a . |

There is ne need to labor over decisions irreconcilable.

with those of the Supreme Court, for it is‘our duty to fol

low the iw as laid down by that beady, and not the contrary

holdings of other courts.

The Second Cireuit, on the other hand, in Uweted States .

ov. Sveth Buffalo BR. Co, 168 F.2d 948 (1948), held that the

crossings of a private way in movements similar to those

here was a sufficient clement to render the movements those

of trains’ within the meanime of the Act. Judge Augustus

Hand, speaking for the Court, declared: **We think it un-

desirable for the courts by their decisions to enable rail-

roads to climinate safety appliances where hazards un-

doubtedly exist to some substantial degree and where the

use of such appliance would insure increased protection.""

168 Fd 948, 952. The Second Cireuit is, TE think, in har-

mony with coutrolling authority.

I would afirm as to count 5, and reverse as to counts 1.

2 and 4.

[fol 160] Ts Ustrep Srates Cover or Nrrrats ron vite

KRouria Cirecrr

No. 7534

Uxtiep States of AMERICA, Appellint

Vs. | .

SEABOARD Ati Lint Harrow Company, Appellee

SciGMENT lantered — 30, 1s

Appeal from the United States District Court) for the

Mastern Distriet of Virginia 7

This cause came on to be heard on the record from the

United States Distriet Court for the Eastern District. of

Virginia, and was argued by counsel.

On consideration Whereof, it is now here ordered and

adjudged hy this Court that the judgment of the said Dis

trict Gourt appealed from, in this cause, be, and the same is

hereby, aflirmed,

June 30, 1958, 2

Clement FF. Waynswoyth, or. United States Cireuit

Judge.

August PS, 1958, mandate issued and transmitted to Clerk

of the United States Distriet Court at Richmond, Virginia.

[fols. 161-162] Supreme Court or tHe Usitep States,

, Ocroper Term, 1958

No. -

7 ' [Title omitted]

Oper Exrexoixe Time vo tine Prrivioxs ror Wror or

Crrriorant—September 25, 1958

Upon Consideration of the application: of counsel for

petitioner.

It Is Ordered that the time for fling petition for writ of

certiorari? in the above entitled cause be, and-the same -is

hereby, extended to and ineluding November 28th, 1958.

- z :

Karl Warren, Chief Justice of the United States.

Dated this 2ord day of September, 1s.

[fols) 165-164] Scpreme Covrr ov rat Unxirep Spates,

Ocroper. Term, 19s :

No. 040

Vxrrep Srares or AMertoa, Petitioner

VS,

Srvpoanp Atk hiske Ratios Company

Orpen Atcowine Crerrronanr January 12. 1990.

The petition herem for a wrt of certiorari: to the United |

States Court of Appeals for the Fourth Cireuit is granted,

and the case is-transferred to the summary calendar.

And itis farther ordered thatthe duly eertified copy of

the transeript of the proceedings below which accompanied

the petition shall de treated as though filed in response to

such writ, :

Mr. Justice Frankfurther took no part in the considera

tion or decision of this application.

S COVERNMENT PRINTING CRFICE 198% 4c7736 11088

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