# Transcript of Record — United States v. Seaboard Air Line Railroad > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0199%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1959 - **Citation:** 361 U.S. 78 ## Text Lior,s RY 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 7 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 Print 41 {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: to 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, ae ~~ 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 ; $ a [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). - o s (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 . ‘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. 14 [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. 16 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. ~ 17 . 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 18 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. 8 ’ tend 19 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. 20 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 21 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. 23 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] thirteen of whieh were ahead of the engine and _ fifteen behind the engine. The movengnt departed from Hopewe!! 24 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 25 {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, 26 ; (). 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 27 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 — — 28 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 . +; ‘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. 49 [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 ol 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 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 73 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,