# Petition for Writ of Certiorari — United States v. Chicago, Burlington & Quincy Railroad

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1953
- **Citation:** 345 U.S. 908

## Text

INDEX
Page
NE 45.2 ih cys Shean cde Wee = bei See ae een 2
UMMA ss sicck cog Saco ba ba es Ses Une er ee 2
I NINO oo is ie i ean e ep wine cee ees se cewen tis 2
Statutes and order involved ................. 00 cece eee eee 2
EE trai ere Nek ot ih A aieeate Pye tM ies eae Miers 4
Reasons for granting the writ...................0.--0005. 9
ISOMER eS al tears Pe OTe O PSR SER Ra ee 21
CITATIONS
Cases:
Chicago, St. Paul, M. & O. Ry. Co. v. United States, 36
F. 2d 670 . Peri tant re thet inmete nel nade eee areca 11
Illinois Central R. Co. Vv. U nited States, 14 F. ‘2d 747, cer-
MOPETT GUINOE: Bia Ut. COn.... 6.5 ic Rivets cease 11
Louisville & Jeffersonville Bridge Co. v. United States,
249 U.S. 534. sear essen OR OY AO Ah ea eS . 10, 12, 13, 16
United States v. Chicago, Burlington & Quincy R. R. = 237
UN IMG: AS ti MES i Bam Gr ah pues amie SRI ye ge 15, 16, 19
United States v. Elgin, J. & E. Ry. Co., 182 F. ‘2d 2. uss hy eee
United States v. Erie R. R., 237 U.S. 402 Bice caraart a 15, 16, 17

United States vy. Northern Pacific Ry. Co., 254 U.S. 251,
10, 14, 16, 18
United States v. South Buffalo R. Co., 168 F. 2d 948, eer-

tiorari denied, 335 U.S. 870......... 9,11
United States v. Southern Pacific Co., 60 F. 2d 864, cer-
tiorari denied, 287 U.S. 667........... 11

Statutes and order:

The Act of March 2, 1893, ce. 196, 27 Stat. 531:

ee Le a ee | ee ere 2
See. 6 [45 U.S.C., 1946 ed., 6].............000 000. 3

The Act of March 2, 1903, c. 976, 32 Stat. 943 amending
the 1893 Act:

Bes. 3 i465 URC., 1006 of., 9)... 6... ces. 3
Order of the Interstate Commerce Commission, dated June
Oy 1GRO C40 Calis AOL). eke veceeesatecsces 4
Miscellaneous :
H. Rep. No. 1678, 52nd Cong., Ist sess................. 18
S. Rep. 1049, 52nd Cong., Ist sess..................... 18
(1)

205409

Inthe Supreme Court of the Wnited States

OctToBER TERM, 1952

No. 550
UnitTEp STATES OF AMERICA, PETITIONER
Vv.

Cuicaco, Burtincton & Quincy Rartroap Com-
pany and Gur, Mosite & Onto RaiwRoap Com-
PANY

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SEV-
ENTH CIRCUIT

The Solicitor General, on behalf of the United
States, prays that a writ of certiorari issue to re-
view the judgments of the United States Court of
Appeals for the Seventh Circuit (R. C. 64; R. G.
56) ' affirming judgments dismissing actions to re-

1'The record with respect to the proceeding involving Chi-
cago, Burlington, & Quincy Railroad Company is referred to
herein by the designation “R. C.,” and the record with respect

to Gulf, Mobile & Ohio Railroad Company by the designa-
tion “R. G,”
(1)

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SOUT SESE EN

2

cover penalties for alleged violations of the Safety
Appliance Act.

OPINION BELOW

The opinion of the Court of Appeals (R. C. 58-
63; R. G. 50-55) is reported at 199 F. 2d 22s.

JURISDICTION

The judgments of the Court of Appeals were en-
tered October 16, 1952 (R. C. 64; R. G. 56). The
jurisdiction of this Court is invoked under 28
U.S. C. 1254(1).

QUESTION PRESENTED

Whether movements of intact units consisting of
an engine and 33 and 23 cars, respectively, in un-
interrupted trips of one and a half and two miles,
were train movements under the Safety Appliance
Act.

STATUTES AND ORDER INVOLVED

The Act of March 2, 1893, ¢. 196, 27 Stat. 531,
provides: .

See. 1 [45 U.S. C. 1] * * * it shall be un-
lawful for any common carrier engaged in in-
terstate commerce by railroad to use on its line
any locomotive engine in moving interstate
traffic not equipped with a power driving-
wheel brake and appliances for operating the
train-brake system, or to run any train in such
traffic * * * that has not a sufficient number
of cars in it so equipped with power or train
brakes that the engineer on the locomotive
drawing such train can control its speed with- |

3

out requiring brakemen to use the common
hand brake for that purpose.

« * *

: Sec. 6 [45 U.S. C. 6] * * * any such com-
mon earrier using any locomotive engine, run-
ning any train, or hauling or permitting to be
hauled or used on its line any car in violation
of any of the provisions of this act, shall be
4 liable to a penalty of one hundred dollars for
| each and every such violation, to be recovered
in a suit or suits to be brought by the United
A States district attorney in the district court
of the United States having jurisdiction in the
locality where such violation shall have been
committed * * *.

: The Act of March 2, 1903, ¢. 976, 32 Stat. 943,
q amending the 1893 Act, provides: é

Sec. 2 [45 U. 8. C. 9] * * * whenever, as
provided in said Act [of March 2, 1893, supra], &
any train is operated with power or train €
brakes, not less than fifty per centum of the
cars in such train shall have their brakes used
and operated by the engineer of the locomotive
drawing such train; and all power-braked
ears in such train which are associated to-
gether with said fifty per centum shall have
their brakes so used and operated ; and, to more
fully carry into effect the objects of said Act,
the Interstate Commerce Commission may,
from time to time, after full hearing, increase
the minimum percentage of cars in any train
required to be operated with power or train
brakes which must have their brakes used and

eT ee ae

4

operated as aforesaid; and failure to comply
with any such requirement of the said Inter-
state Commerce Commission shall be subject
to the like penalty as failure to comply with
any requirement of this section.

The order of the Interstate Commerce Commis-
sion, dated June 6, 1910 (49 C. F. R. 132.1), pro-
vides:

On and after September 1, 1910, on all rail-
roads used in interstate commerce, whenever,
as required by the Safety Appliance Act as
amended March 2, 1903, any train is operated
with power or train brakes, not less than 85
per cent of the cars of such train shall have
their brakes used and operated by the engineer
of the locomotive drawing such train, and all
power-brake cars in every such train which
are associated together with the 85 per cent
shall have their brakes so used and operated.

STATEMENT

The court below has considered together, in one
opinion, two judgments dismissing, after trial,
complaints against railroads charging violations
of the air-brakes provision of the Safety Appliance
Act.

1. The complaint against the Chicago, Burling-
ton & Quincy Railroad, filed in the District Court
for the Northern District of Illinois, alleged four
causes of action, but it was stipulated and agreed
that the movement of cars alleged in the first cause
of action was similar to the movements in the other

. guy ltt Sut TOE
Basi ou sor Bnt Yet ayaa eaten ey RS Rin tah BO ATT SA RII DRIES GIES SINE OR SOR

5
three causes and that the decision of the court on
the first cause should be binding upon the parties
as to the other causes (R. C. 47).

The district court found that the movement in
question consisted of 23 freight cars drawn by a
diesel engine from respondent’s Freight House
Yard at Aurora, Illinois, for a distance of s'ightly
over two miles, to its West Yard at Kola, [linois,
without power or air brakes in operation an any
of the cars (R. ©. 47-48). The cars had been as-
sembled in the Freight House Yard and were
hauled intact to the Kola yard to be coupled into
outgoing trains (R. C. 49-50). No cars were
picked up or set out enroute (R. C. 48). The
movement was at a speed of eight to ten miles
per hour (R. C. 48). The movement was over a
‘lead track’’® paralleling respondent’s three main
tracks and crossed two public crossings, one across
a much-traveled street protected by automatic

“CURSES. pee

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flashing light signals and bells, and the other at a@ >

graveled highway, having an open view in all di-
rections. (R. C. 48-49.)

At the Freight House, the lead track was ten
feet below the main tracks and was at an ascend-
ing grade until it reached a level with the main
tracks at the Eola yard. No through passenger
train used the lead track, but the ‘‘second class”’
freight trains, Nos. 83 and 84, running between the
Eola yard to West Chicago, a short distance beyond

2The term “lead track” was employed in the proceeding
below to designate the track leading from the Freight House
trackage to the Eola yard.

6

Aurora, used one and one-half miles of the track
daily. These trains did switching beyond Aurora.
(R. C. 29, 48.) The entire distance of the lead
track was ‘‘within the yard limits’’ of Aurora, and
all operations of trains Nos. 83 and 84 and of switch
engines were based on an operating rule permit-
ting the track to be used as it was ‘‘seen and known
to be clear”? (R. C. 48-49). The entrance to the
main tracks was controlled by interlocking
switches, and derails on the lead and entrance
tracks protected against trains entering the main-
line tracks without proper signal indications (R.
C. 49). The movement here in question was under
the direction and control of the yardmaster and
the engine was manned by a switching crew; no
caboose was attached and no train markers were
carried (R. C. 49-50.) According to the district
court’s finding, at the speed at which the train
moved, it could be controlled ‘‘quickly’’ by the
engineer, using the locomotive brakes, and the cars
could be stopped ‘‘as quickly”? as if the power
brakes were available ‘‘except in any emergency”’
(R. C. 48.)

The district court found, as a conclusion of law,
that the movement was ‘‘a switching movement and
not a train movement,” and he therefore dismissed
the causes of action (R. C. 50).’

3 The district judge’s reasoning is indicated in an oral state-
ment (R. C. 43-45) in which he concluded that “all the facts
and circumstances” must be examined. Without attributing
decisive force to any one circumstance, he relied on the fol-
lowing aspects: use of a yard crew (R. C. 44), absence of a
caboose (R. C. 44), absence of flags to indicate the classifica-
tion of train (R. C. 44), movement within the limits of one

aaa PPG APPA Nt

7

2. The complaint against the Gulf, Mobile &
Ohio Railroad, filed in the Southern District of
Illinois, alleged a movement of locomotive and 33
freight cars from its Venice, Llinois, yards to the
yards of the Terminal Railroad Association at
East St. Louis, Missouri, without brakes in opera-
ation on the cars (R. G. 3-4).

The district court found the movement to have
covered a distance of approximately one and one-
half miles, at the rate of four to five miles per
hour, without air brakes in operation on the cars,
and no showing appeared that any switching was
done enroute, although in similar movements cars
not going all the way to the Terminal yards were
sometimes switched off to the intermediate portion
of the Venice yards (R. G. 42-43). The cars in ques-
tion had been assembled from four incoming trains
and all ‘were designated for the Terminal Rail-
road’? and by this movement transferred to that
railroad’s yard (R. G. 42). The movement, until
it entered the Terminal yards, was through the
Gulf, Mobile & Ohio’s Venice yards, which were ex-
tensive, and consisted of three sections. Freight
trains were made up and broken up in these yards,
and the yards adjoined the Terminal yards (R. G.
41.) No trains passed through the Venice yards

yard, “the Aurora-Eola yard” (R. C. 44), and the use of the
track “only for yard purposes” because the two freight trains
Nos. 83 and 84 traveled such a short distance beyond the
Aurora yard that it was “no more or less than a switching
movement” (R. C. 44-45). The district judge considered it
“not determinative” that no switching took place in the dis-
we of over two miles and that highways crossed the track
. C. 45).

COLLIE LAIN AOR LEN

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(R. G. 42), and the movement here in question
crossed no main-line tracks of any railroad. The
movement crossed a paved street known as State
Route 3, at which a crossing watchman was posted.
Since the movement began only 40 to 50 feet from
this crossing, the speed at the crossing was only
three miles per hour (R. G. 42).

The movement was under yard rules and under
control and supervision of the yardmaster, who
was located in a tower, and could communicate with
crews by a system of loudspeakers, but there was
no finding of any communication during the move-
ment (R. G. 41). The movement was drawn by a
diesel switch-engine and handled by a switching
crew; it was not made pursuant to any regular
schedule (R. G. 41). No injury had arisen out
of such a movement within the past 40 years (R. G.
42).

The district judge concluded, as a matter of law,
that the Gulf, Mobile & Ohio movement ‘‘was a
yard switching movement and did not constitute
a train movement”’ (R. G. 43), relying primarily,
according to his memorandum (R. G. 38), upon the
precedent of United States v. Elgin, J. & E. Ry.
Co., 182 F. 2d 1 (C. A. 7).

On appeal, the court of appeals affirmed both
judgments of the district courts, holding the opera-
tions in both cases to be switching operations and
not to involve train movements. It stated (R. C.
61-62) :

The lack of any uniform definition as to
what constitutes a train movement is aptly
illustrated by two recent decisions, United

9

States v. South Buffalo R. Co., 168 F. 2d 948,
decided by the Second Circuit, and United
States v. Elgin, J. & E. Ry. Co., 182 F. 2d
1, decided by this court. A fine-tooth comb is
required to differentiate between the facts of
the two cases. The Second Circuit, however,
decided that the operation in question was a
train movement and reversed the District
Court, which had held that it was a switching
movement. On the other hand, this court de-
cided on the facts before it that the operation
was not a train movement and affirmed the
District Court. These two cases with strik-
ingly similar facts but with opposite results
are typical of others which could be cited.
REASONS FOR GRANTING THE WRIT

1. a. The passage quoted immediately above
shows that the Seventh Circuit itself recognizes
that the Second and Seventh Circuits are reaching
‘opposite results’’ in cases with ‘‘strikingly simi-
lar facts.’ The Second Cireuit’s decision in
United States v. South Buffalo R. Co., 168 F. 2d
948, certiorari denied, 335 U. S. 870, involved a
movement of 15 cars for two miles entirely within
the carrier’s yard by a carrier engaged only in
yard operations. The only diffevence in critical
facts between that case and those at bar is that a
lesser number of cars was hauled in the South
Buffalo case.

b. The attempted distinction between the South
Buffalo case and the Elgin case relied on below was
based on an appraisal of the degrees of danger
involved. But this Court has explicitly held this

10

factor immaterial. In United States v. Northern
Pacific Ry. Co., 254 U. 8. 251, 255, it declared that
‘‘Congress has not imposed upon courts applying
the act any duty to weigh the dangers incident to
particular operations.”’

Similarly, under the decision below, the trier of
fact is allowed to consider other protections af-
forded at grade crossings in determining whether
the movement of cars was dangerous enough to
be a ‘‘train’’ within the meaning of the statute.
But in Louisville & Jeffersonville Bridge Co. v.
United States, 249 U. S. 534, 539, the Court stated:

It is argued that coupling of the train brakes
was not necessary for the reason that the street
crossings used were protected by gates, that
a yard master from an elevated tower watched
over the main line movements, and that the
coupling of the train-brake appliances would
involve more danger to the employees than the
movement of the cars without their being used
and operated. These suggestions serve to em-
phasize the dangerous character of the move-
ment. But the construction which the act
should receive is not to be found in balancing
the dangers which would result from obeying
the law with those which would result from
violating it, nor in considering what other pre-
cautions will equal, in the promotion of safety,
those prescribed by the act. Such considera-
tions were for Congress when enacting the law
* * *. [Italics supplied. ]

Clearly the danger involved cannot determine
whetier a movement of a number of cars is a train.

11

Switching movements may well be as dangerous
as ‘“‘train’’ operations. Particularly incongruous
is the apparent weight accorded below to the num-
ber of grade crossings and prior accidents in e-
termining whether a particular movement is a
train. The court of appeals noted here that in the
Chicago, Burlington & Quincy case, the track
crossed two ‘“‘public highways’’ (R. C. 62, R. G.
54), and that in the Gulf, Mobile and Ohio case a
single state highway was protected by a watchman
(R. G. 54). In the South Buffalo case the only
grade crossing was one ‘‘adequately protected”
private industrial crossing 168 F’. 2d at 950 n. But
such factors, and fine distinctions based thereon,
can hardly be decisive in interpreting the word
“‘train.”’

e. The decision below also conflicts with United
States v. Southern Pacific Co., 60 F. 2d 864 (C. A.
9), certiorari denied, 287 U. S. 667, Chicago, St.
P., M. & O. Railway Co. v. United States, 36 F.
2d 670 (C. A. 8), and Illinois Central R. Co. V.
United States, 14 F. 2d 747 (C. A. 8), certiorari
denied, 273 U. S. 752. In the Southern Pacific
case, the Ninth Circuit held that the Act applied to
movements of between 10 and 26 cars for a distance
of one mile along a ‘‘drag track’’ between two parts
of a yard in San Francisco. In the Chicago, St. P.
M. & O. case the movement held to constitute a
train was of 16 cars for 1% miles between parts of
ayard. In the Illinois Central case, the movement
of 18 cars was for slightly less than a mile on a
lead track between parts of a yard. The three

saauncnenneed , ER cee i ee : ——

12

eases last cited differ from the instant cases and
the South Buffalo case only in that there were
a larger number of grade crossings.

It is apparent from this analysis of the cases in
the courts of appeals that on substantially identical
facts the Safety Appliance Act has been applied in
the Second, Eighth and Ninth Circuits, but that
it is not being applied to railroads in the Seventh
Circuit. This in itself would warrant review by
this Court in order to insure that the Act be ap-
plied uniformly throughout the country. In addi-
tion, as we shall show, the decision below disre-
gards the standards of interpretation approved by
this Court.

2. The court below has so misconceived the de-
cisions of this Court as to make application of the
Safety Appliance Act, in the court’s own language,
‘*depend largely upon the opinion or judgment of
the court called upon to make a decision’’, with the
result that ‘‘the opinion of one judge or court is
likely to be as good as that of another’’ (R. C. 61,
R. G. 53). The decision below thus thrusts upon
the courts the essentially legislative function of de-
ciding whether power brakes are in their opinion
desirable in a particular operation, contrary to the
warning of this Court in Louisville & Jeffersonville
Bridge Co. v. United States, 249 U.S. 534, 539, that
‘the construction which the act should receive is
not to be found in balancing the dangers which
would result from obeying the law with those which
would result from violating it, nor in considering
whet other precautions will equal, in the promotion

13

of safety, those prescribed by the act.’ Moreover,
the decision below, in permitting the courts to make
the decision as to the applicability of the Act on an
ad hoc basis depending largely on their concept of
danger, permits consideration of all sorts of cri-
teria other than the one fixed by the statute as in-
terpreted by the decisions of this Court, including
criteria rejected by this Court. The result of such
an interpretation must inevitably be confusion
and lessening compliance with the safety provisions
prescribed by Congress, a result which the decision
below itself demonstrates.

The decisions of this Court leave no room for the
ad hoc application of the statute and the resulting
confusion pictured by the court below. The stat-
ute speaks of ‘‘any train’, and the decisions o*
this Court have made clear what a train is. In
Louisville & Jeffersonville Bridge Co. v. United
States, 249 U.S. 534, which involved a company
engaged in operating only a terminal yard, this
Court pointed out the nature of the determination
to be made in these cases (p. 938) :

An engine and twenty-six cars, assembled
and coupled together, not only satisfies the dic-
tionary definition of a ‘“‘train of cars,’’ but
would certainly be so designated by men in
general and in any fair acceptation of the term
must be regarded as constituting a train within
the meaning of the statute. It was a train
greater in length than most regularly sched-
uled trains were when this Safety Appliance
Act was passed twenty-six years ago, and even

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14

yet, probably, exceeds in length, passenger and
freight trains considered, more than a ma-
jority of the regular road trains in this coun-
try.

The work done with the cars, as described,
was not a sorting, or selecting, or classifying of
them, involving coupling and uncoupling, and
the movement of one or a few at a time for
short distances, but was a transfer of the
twenty-six cars as a unit from one terminal
into that of another company for delivery,
without uncoupling or switching out a single
car, and it cannot, therefore, with propriety
be called a switching movement. [Italics sup-
plied. ]

In United States v. Northern Pacific Ry. Co.,
254 U.S. 251, this Court disposed of the contention,
apparently pieced together from bits of incidental
language of earlier decisions, that if the movement
was not over a main line no ‘‘train’’ could be said
to be involved. Mr. Justice Brandeis, speaking for
a unanimous Court, said (at pp. 254-255) :

* * * Tf use of the road as part of a main
line were essential in order that operations on
it be controlled by the Safety Appliance Act,
the requirement would be satisfied in this case
* * * But there is nothing in the act which
limits the application of the provision here in
question to operations on main line tracks.
The requirement that train brakes shall be
coupled so as to be under engine control is in
terms (32 Stat. 943) applicable to ‘‘all trains
* * * [Transfer trains, like those here in-

15

volved, are ‘‘trains’’ within the meaning of
the act. A moving locomotive with cars at-
tached is without the provision of the act only
when it is not a train; as where the operation
is that of switching, classif™. 7 and assembling
cars Within railroad yards for the purpose of
making up trains.‘ [Italics supplied. ]

See also United States v. Erie R. R., 237 U.S. 402,
and United States v. Chicago, Burlington & Quincy
R.R., 237 U.S. 410, both clear holdings that ‘‘trans-
fer trains’’ taking groups of cars ‘‘as a unit’? (237
U.S. at p. 412) from one place of receiving, break-
ing-up, assorting, storing, and distributing, to an-
other, were subject to the safety requirement, since
their operation was for the transporting of a train
of cars and not for the distributing and assembling
which would alone be excepted from the brake re-
quirements.

This Court has thus laid dow» clear and simple
criteria of what constitutes the movement of a
train within the purview of the Safety Appliance
Act. The movement of an assembled group of cars
with an engine for an appreciable distance without
transferring or adding other cars is the movement
of a train for the purposes of the Act. The de-

‘It may be noted, as against further misunderstanding de-
rived from isolated verbiage, that this quotation does not take
a movement out of the status of being a train merely because
it is “within railroad yards” or is “for the purpose of making
up trains.” These are not substitutes or alternates for the
basic requirement for exemption that the operation itself be a
switching operation, since a train of cars hauled across the
country “for the purpose of making up trains” at a distant city
would nevertheless remain a train, and so, too, would a train
passing “within railroad yards.”

- ewe Fe Lode EN Degg RG Rina ATC ek Ae ON STR, RA MOTE. —

16

cision below, in holding that movements here in-
volved, i.e., 23 cars for over two miles, and 33 cars
for one and one-half miles, were not movements
of trains within the purview of the Act is clearly
contrary to the above-cited decisions of this Court.’

3. When the decision below is read in conjunc-
tion with the earlier opinion of the same court in
United States v. Elgin, J. & BE. Ry. Co., 182 F. 2d 1,
on which it largely relied, it is evident that the court
below thought that the Supreme Court cases re-
ferred to above were not controlling because in the
Elgin and the instant cases the movements were
within a single railroad yard. As we have pointed
out, the Second, Kighth and Ninth Circuits have
reached a contrary conclusion as to this. Further-
more, in the instant cases, that premise is not sup-
ported by the facts. The Chicago, Burlington, and
Quincy’s yards in Aurora, Illinois and Eola, Ili-
nois were connected by only narrow trackage, even
though no signs were posted establishing yard
limits between the two substantially separated

5In United States v. Erie R.R., 237 U.S. 402, 404, 406,
supra, each transfer train had about 25 cars and the distance
of the trips was from two to three and one-half miles. In
United States v. Chicago, Burlington, and Quincy Railroad,
237 U.S. 410, 411-412, the trains ranged from 36 to 42 cars
and the trips were about two miles; in Louisville & Jefferson-
ville Bridge Co. v. United States, 249 U.S. 534, 538, a 26-car
train moved about three-quarters of a mile; and in United
States v. Northern Pacific Railroad Co., 254 US. 251, 40-car
and 48-car trains moved four miles. :

The speed of the movement was not mentioned in the Chi-
cago, Burlington and Quincy opinion; it was noted in Ene,
Louisville & Bridge, and Northern Pacific, respectively, at
seven to eighteen miles per hour, up to 15 miles per hour, and
three to eighteen miles per hour.

ApS AL an OK ae ea bea Mahe Debit ek See MRD Nile lies CR ih Mea

17

yards and separate operations. Similarly, an ex-
amination of the Gulf, Mobile & Ohio’s Exhibits 14
and 15 will disclose that the sections respectively
labelled (and correctly so) as Venice Yard and
Brooklyn Yard are separate switching areas con-
nected by trackage apparently adapted for the
transfer of assembled groups of cars rather than
for assembling or breaking-down operations in
themselves. Moreover, the yard to which the Gulf,
Mobile & Ohio movement was directed was not even
one of Gulf, Mobile & Ohio’s yards, but that of the
Terminal Railroad Association of St. Louis and
was clearly connected only by a transfer track
(Gulf, Mobile & Quiney Exhibit 13; R. G. 43). We
believe the language of this Court in United States
v. Erie Railroad, 237 U.S. at p. 406 is clearly ap-
plicable: ‘‘They [the three yards] doubtless are
important accessories to the defendant’s eastern
terminal, but that does not make them one yard.
They lie from two to three and one-half miles
apart, are not so linked together that cars may be
moved from one to another with the freedom which
is usual and essential in intra-yards movements,
and are in actual practice treated as separate
yards.’’ ©

® The irrelevance of the factor of technical retention of the
operation within the nominal limits of a switchyard or lead
track is further illustrated by the facts of these cases. A
wreck in either of the narrower portions of the yards or lead
tracks could spill cars or wreckage onto outside territory or
main-line tracks, particularly in such a situation as that of
the Gulf, Mobile & Ohio, where the main-line tracks (see Gulf,
Mobile & Ohio Exs. 14 and 15) run immediately alongside
the tracks upon which the transfer trains operate.

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In any event, neither the opinion below nor the
prior Elgin opinion treats the factor of movement
within a single yard as in itself sufficient to dis-
tinguish a train movement from a switching opera-
tion. Rather, the court below apparently consid-
ered the fact of transfer within a single yard as
bringing the cases within the ‘‘twilight zone”
which, in its view, necessitates consideration of the
many ‘particular facts’? in each case. Nothing,
however, in the opinions of this Court justifies the
substitution of the amorphous standard of the court
below for the clear and precise definition by this
Court of the unlimited statutory term ‘“‘train’’
merely because a single yard is involved.

The legislative history of the Act plainly shows
that a substantial purpose of the Act was not
merely to prevent wrecks but to preclude the neces-
sity of using brakemen atop the cars who were
required to man the hand-brakes due to the insuf-
ficiency of engine brakes to deal with a train of
an; length, particularly on a grade. (H. Rep. No.
1678, 52nd Cong., Ist sess., pp. 1, 3, 4-5; S. Rep.
1049, 52nd Cong., Ist sess., 29-31, 109-110.) Thus,
the simple standard of whether a number of as-
sembled cars drawn by one engine travels for an
appreciable distance is directly related to the dan-
ger which Congress was seeking to prevent.

4. Other factors given weight by the court below
have been treated as irrelevant by this Court. The
fact of passage over a main line was considered
significant by the court below in the Elgin opinion.
It characterized United States v. Northern Pacific

MERU RO RTO PT AE RR PM II NT NIE RO TE OIA R RIEL NEF RSNA

19

Ry. Co., 254 U.S. 241, as holding that the ‘‘transfers
* * * constituted main line transportation in the
meaning of the Act’’ (182 Fed. 1, 3), ‘‘whereas the
whole effect of the decision (see supra, pp. 14-15)
was to negate the necessity of main-line transpor-
tation to the definition of a ‘‘train.’’? The court be-
low in its recital of the facts also mentioned that
the cars involved carried no caboose or markers,
whereas this Court in the Chicago, Burlington &
Quincy case, 237 U.S. at p. 413, said:

* * * That [the trains] carried no caboose
or markers is not material. If it were, all
freight trains could easily be put beyond the
reach of the statute and its remedial purpose
defeated. Neither is it material that the men
in charge were designated as yard or switching
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 to
those engaged in it.

The court below also mentioned that switching
crews were used for the operation, that the move-
ments were not on a regular schedule, and that the
trains were under orders of yardmasters. The
opinions, in both Erie and Chicago, Burlington &
Quincy, supra, show that this Court was clearly
aware of the use of switching crews, and the ab-
sence of regular train markers, and was aware, in
those cases and Northern Pacific as well, that the
movements were not on a necessarily regular sched-
ule. The opinions in Frie, Louisville, and North-
ern Pacific also noted that the trains were under

20

orders of yardmasters, but ascribed no necessary
consequence to the fact that only switching opera-
tions and not trains could be put through a yard by
a yardmaster.

This consistent departure in detail from the hold-
ings of this Court is merely a reflection and neces-
sary consequence of the more basic departure from
the simple criteria established by this Court as to
what constitutes a train within the meaning of the
Act. The court below has substituted for the
simple, common-sense definition of train established
by this Court, a concept which requires in any
doubtful case the weighing of innumerable impond-
erables without any guiding standards, and leaves
‘the ultimate result largely dependent on the ap-
proach to the statute adopted by the individual :
trier of fact.

The practical effect on enforcement of leaving
‘such considerations to the courts is illustrated by
the course of opinions in the court below. In the
Elgin case, the court found no element of danger,
although the trackage involved crossed two private |
crossings at grade. Thereafter, faced with the in- |
stant cases, where, in the Chicago, Burlington case |
two public streets, one much traveled, were crossed, |
and in the Gulf, Mobile case a public highway was
crossed, the court still found no danger, apparently
because no accident had yet occurred. To permit
enforcement only after an accident on the particu-
lar stretch of track involved is hardly a proper
manner in which to construe an Act designed to
protect the public safety.

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hl i sl RL in OR. eA SE ally

21

CONCLUSION

That a law regarding the safety of railroad op-
erations has been given so nebulous a meaning in
a judicial circuit which embraces the important
railroad center of Chicago is in itself sufficient to
warrant the grant of certiorari in these cases. In
addition, unless the misinterpretation of the de-
cisions of this Court is corrected and the conflict
with the decisions of the Second and other Circuits
resolved, there is bound to be general confusion
among the circuits as to the applicability of the Act,
with consequent relaxation in compliance. The
problem involves no mere disagreement as to par-
ticular factual situations. It arises from a sub-
stantial misconception of the entire required basis
of decision.

It is therefore respectfully submitted that this
Court should grant the petition for writ of cer-
tiorari.

WatrTer J. CUMMINGS, JR.,
Solicitor General.
JANUARY, 1953,

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IN THE

Supreme Court of the United States

Octroser Term, 1952.
No. 550

UNITED STATES OF AMERICA,
Petitioner,

vs.

CHICAGO, BURLINGTON & QUINCY RAILROAD
COMPANY anp GULF, MOBILE & OHIO RAILROAD

COMPANY,
Respondents.

RESPONDENT CHICAGO, BURLINGTON & QUINCY
RAILROAD COMPANY’S BRIEF IN OPPOSITION
TO PETITION FOR CERTIORARI.

Expon Martin,
Joun L. Rice,

Anprew C. Scort,
Counsel for Respondent.

THE GUNTHORP-WARREN PRINTING COMPANY, CHICAGO

SCRE SESE ta eet ire TD ALES HONE EAS RTI

se ee — . ;
es soe, Rowe

Mea SESS

INDEX. p

PAGE y
Record Incomplete—Map and 9 Photographs Missing 1 2
Question Presented..........+-..eeeeeee reece eeeees 2 b
oe cc caawads orbs nahedeveusseecseseseess 3 ‘

Reasons for Denying Petition for Writ of Certiorari.. 4

This Court in Four Cases Has Determined the Prin-
ciples Governing the Use of Air Brakes Under the
Safety Appliance Act; and There Is Therefore no
Occasion to Grant Certiorari in This Case in Order to
Resolve a Supposed Conflict Between Circuits, In-
volving the Same Principles.........-----+--++++: 7

Petitioner Has Already Had Two Trials, in Both of
Which the Facts and Law Were Resolved Against It 10

ir Ste Er RSS
PASO HOW DAE

Me
Bs '
%,
ii
ra
a
g 4
a
ol
a
Eta
te
wr

ii
CITATIONS.
Chicago, St. P., M. & O. Ry. Co. v. United States,

Rh. ie i Bs ice haa dbn ene yiaerrvuecues 11
Graver Mfg. Co. v. Lindy Co., 336 U. S. 271, 275...... 2, 12
Howard v. Chicago, Burlington & Quiney R. Co.

iS Fe ee Ee erry nmr 2
Illinois Central R. Co. v. United States, C. C. A. 8, 14

A Oe ck KEG TEE Rha eee Awe see eee ee 11
Louisville & J. Bridge Co. v. United States, 249 U. S.

ETRE Toa ieee Pas ae ONoE yf Bi cay taser ein 7,9
Sublette, et al. v. Servel, Inc., C. C. A. 8, 124 F. 2d 516,

UE WE hd 0s oR ERS Coe CAV OER Ie 2
United States v. C. B. & Q. R. Co., 237 U. S. 410...... 7,8

United States v. Erie Railroad Co., 237 U. S. 402.... 7,8
United States v. Great Northern Ry. Co., C. C. A. 9,

73 F. 2d 736, certiorari denied 295 U.S. 752........ 11
United States v. Northern Pacifie Ry. Co., 254 U. S.
SE hp ak hs nada eek EON Ce ho need tae een 7,9
United States v. Southern Pacifie Co., C. C. A. 9, 60
ie ies 6 Gbsos da OK eREKE Ooh 3 0 baeean en 11
United States v. Title Guaranty & Trust Co., C. C. A.
See Fs ek Ohad Res eeededesa cheenecerteen 2

Supreme Court Rule.
Supreme Court Rule 10, paragraph 3................ 2

Law Review Article.

‘*Denial of Certiorari Despite a Conflict,’? by Robert
L. Stern, 66 Harvard Law Review, pp. 465-472.... 12

IN THE

Supreme Court of the United States

Ocroper Term, 1952.

No. 550.

UNITED STATES OF AMERICA,
Petitioner,
vs.

CHICAGO, BURLINGTON & QUINCY RAILROAD
COMPANY ann GULF, MOBILE & OHIO RAILROAD
COMPANY,

Respondents.

RESPONDENT CHICAGO, BURLINGTON & QUINCY
RAILROAD COMPANY’S BRIEF IN OPPOSITION
TO PETITION FOR CERTIORARI.

RECORD INCOMPLETE—
MAP AND NINE PHOTOGRAPHS MISSING.

Petitioner failed to include in the record in the Court of
Appeals and in this Court nine exhibits that were before
the trial court at the time the findings of fact were made.
Petitioner’s Exhibit 1 was a large map showing the switch
yards involved, together with the location of the various
industries, freight house, shops and location where cars
were assembled into trains at Eola (R. 13-15). This map
was referred to by the government witness (R. 17) and by

the court in connection with its analysis of the evidence
(R. 45),

i

2

Respondent’s Exhibits 1 to 8, inclusive, were a collection
of photographs showing the location of the switching lead
over which the switch movement in the Aurora-Kola yard
occurred, and also the complete isolation of this switch yard
from Respondent’s main line tracks by virtue of the high
fill on which the main-line tracks were located (R. 21-28).
Exhibit 6 also showed the excellent vi2w and the infre-
quency of travel over the only unprotected highway cross-
ing (R. 24).

Where petitioner seeks to review the trial court’s findings
of fact, and fails to produce all the evidence before the
trial court, especially where the omitted evidence consists
of a map and photographs which cannot be adequately
portrayed in the printed record, petitioner is not entitled
to have a second review of the trial court’s findings and
conclusions, particularly where the trial court and the
Court of Appeals have reached the same conclusion (St-
preme Court Rule 10, Par. 3; Sublette, et al. v. Servel, Inc.,
C. C. A. 8, 124 F. 2d 516, 517; United States v. Title Guar-
anty & Trust Co., C. C. A. 6, 133 F. 2d 990, 995; Howard v.
Chicago, Burlington & Quincy R. Co., C. C. A. 8, 146 F. 2d
316; Graver Mfg. Co. v. Linde Co., 336 U. S. 271, 275).
Accordingly, Respondent Chicago, Burlington & Quincy
Railroad Company respectfully moves that the petition for
certiorari herein be denied insofar as it seeks a review of
case No. 10617 in the United States Court of Appeals.

QUESTION PRESENTED.

Whether the movement of a locomotive and 23 freight
ears, for a distance of two miles, for the purpose of incor-
porating the cars into freight trains, involves a train
movement or a switching operation—(1) where the move-
ment is wholly within the switch limits of Respondents
Aurora-Eola freight yard (R. 22, 32, 44; Findings 9, 11 and

3

13, R. 48-49) ; (2) over a switching lead track not used by
main-line passenger or freight trains (R. 31-32) ; (3) where
the switching lead track does not cross or intersect the
tracks of any other railroad or the main line tracks of
Respondent (Plaintiff’s Ex. 1, omitted from the record,
R. 45); (4) where the switching movement does not exceed
ten miles an hour, the movement could as readily be con-
trolled by the locomotive power brakes as by the automatic
train brakes, and the automatic train brakes could not and
would not be used, if available, because it would result in
damaging the lading at such slow speeds (R. 31, 32, 33;
Finding 4, R. 48); (5) where the movement was under the
jurisdiction of a yardmaster and the operation was con-
trolled by switch crews (R. 22, 20, 44, 45; Findings 10 and
14, R. 49-50); and (6) where, for 45 consecutive years,
1907-1952, the movement had been so effectively controlled
by the locomotive power brakes that no one had ever been
injured (R. 30, 32-33).

STATEMENT.

Respondent invites the court’s attention to what it con-
ceives to be two erroneous statements contained in peti-
tioner’s statement. The judgment of the trial court was
based, in part, at least, on a finding that the movement from
the freight house tracks to the tracks where trains were
made up was within the confines of a single freight yard
(R. 44), and the court directed preparation of findings of
fact not inconsistent with the findings of the court con-
tained on pages 44-45 of the record (R. 45). The court’s
language with respect to this being a movement within a
single freight yard follows:

‘‘Here it was a movement of a locomotive and 23
ears by a yard crew, by means of a yard engine. They
had no caboose with them. They had no flags on their

engine or their last car to indicate the classification of
the train which was moving. * * * The movement was

ae itr ABR GIR SE TO A lage AA ESE I PN ADAGE LIB NREL A BEIGE ALE GALA DEOL GALL ay a 0 ae

4

within the limit of one yard * * * I don’t say that a
train may not move within one yard. Of course, it can,
But I say the fact that it was wholly within one yard
is a matter to be considered in determining whether or
not this was a train. The movement was wholly within
the Aurora-Kola yard.’’ (R. 44.) (Emphasis supplied.)

Inasmuch as the court’s judgment is obviously based, in
part, on the foregoing language, and as that language of
the court is supported by the testimony (R. 22, 31), it
would seem that the judgment ought not be impaired by
the statement in finding No. 3 that the movement occurred
between the freight house yard and the Eola train yard
(R. 47-48). Particularly where the foregoing languaye of
finding 3 also conflicts with findings 11 and 12 (R. 49-50),
wherein it is correctly stated that the movement began on
the freight house tracks (Cyclopedia Federal Procedure
(3rd Ed), Vol. 14, p. 182).

On page 6 of the petition, reference is made to finding
4 to the effect that the cars could be stopped as quickly
with the locomotive brakes as with the power brakes ‘‘ex-
cept in any emergency’’. While it is true that the quoted
language appears at the end of finding 4, there is no evi-
dence in the record to sustain this part of the finding. The
evidence was that the speed of the movement was so slow it
could be stopped as readily with the locomotive power
brakes as with the automatic air brakes, and that the auto-
matic air brakes would not be used if available because it
would result in rough handling of the lading (R. 31, 32, 33).

REASONS FOR DENYING PETITION FOR WRIT OF CERTIORARI.

At pages 9-20 of the petition, counsel argue the writ
should be granted because of an alleged conflict between
the decision herein (199 F. 2d 223) and a previous decision
of the Seventh Circuit (182 F’. 2d 1) with an earlier deci-
sion of the Second Circuit (168 F. 2d 948). Petitioner also

5

claims the Seventh Circuit has failed to heed decisions of
this court, and that that Cireuit’s decision herein conflicts
with previous decisions of the Eighth Cireuit (36 F. 2d 670
and 14 F. 2d 747) and the Ninth Cireuit (60 F. 2d 864).

Nevertheless, when counsel for petitioner was presenting
the same citations to the trial court in an effort to obtain a
judgment that the movement herein was a ‘‘train’’ instead
of a switching operation, he said:

‘‘T have cited various cases yesterday, and quoted
from the opinions thereof as to the various factors that
are considered in establishing this question and an-
swering the question whether this is a switching or a
train movement.

‘‘No single case can be designated as completely in
point, in that the factors or situations differ from case
to case; therefore, it is necessary to bring out factors
that have been determined by the various cases. (Km-
phasis supplied.)

‘*We have shown that the distance involved is not a
controlling factor * * * also the question will arise
whether the factor of switching tock place before the
movement starts, and did switching again take place
after the movement reached its destination. That
should be considered in determining this question. * * *
The speed of the movement is not controlling. * * * The
use of the main line is not essential to establish whether
the movement is that of a train or merely switching.
*** Tn all of these cases there is this similarity, how-
ever. The fact that switching crews have handled
these trains and in most cases the yardmasters have
had control of the movements * * *. So all of these
cases have come up on the issue of switch engines, and
switch crews can perform train movements as well as
switching movements. The use of that type of crew is
not controlling or guiding. * * *

‘‘The question of stopping and setting out cars dur-
ing some period from the beginning of the movement
complained of to the end has arisen in numerous cases.
*** Tn a number of cases, this factor was disregarded

MERE DAL ITED Mr SOL

ak tetas

PAW Liew BilEe a2 ays RY Tietiwe

to the extent that the entire movement was looked at
as a train movement.

‘“‘There has been some question in other courts, in
other jurisdictions, indicating that switching took place
which interrupted a train movement, therefore the
entire movement may have been regarded as switeh-
ing.’’ (R. 40-41.)

Respondent believes counsel for petitioner was correct in
advising the trial court that no previous decision of the
Supreme Court or of any Court of Appeals compelled a
decision herein that this was a train movement as distin-
guished from a switching operation. As counsel then
pointed out, each decision rests on its own peculiar facts.

If the word ‘‘train’’, as used in the statute, had been
given its ordinarily accepted meaning in the railroad in-
dustry, the problem presented would be readily solved by
simply differentiating the operations handled by train
crews from those handled by switch crews in the yards.
But the courts went further and construed the word
‘¢train’’ so as to include many operations, otherwise switch-
ing in character, on the theory that such operations in-
volved dangers that were sought to be eliminated by the
statute. This extension of the statute by means of judicial
construction has necessarily prevented the ruling in any
one case being wholly applicable to the facts in another
case. It was for this reason that counsel for petitioner
advised the court no previous decision was wholly in point.
For like reason, there can be no legal conflict between the
circuits.

This Court in Four Cases Has Determined the Principles
Governing the Use of Air Brakes Under the Safety
Appliance Act; and There Is Therefore No Occasion to
Grant Certiorari in This Case in Order to Resolve a
Supposed Conflict Between Circuits, Involving the Same
Principles.

The Government asks certiorari chiefly on the claims that
the holding of the Seventh Circuit below differs from that
of the Second, and that a decision of this Court is needed
to settle the difference. The fundamental error in this con-
tention is its disregard of the fact that the Supreme Court
already has enunciated the rules of construction and ap-
plication of the Air Brake Safety Appliance Act, rendering
further consideration unnecessary. The meaning and ap-
plication of the statute (45 U. S. C. A. Sec. 6) has been
before the Court four times:

United States v. Erie R. R., 237 U.S. 402.

United States v. C. B. & Q. R. R., 237 U.S. 410.
Louisville & J. Bridge Co. v. U. S., 249 U.S. 534.
United States v. Northern Pac. Ry., 254 U. 8. 251.

These decisions make plain that the question whether a
given movement of a locomotive and cars constitutes a
‘‘train’’ within the meaning of the Act, depends on the
‘nature of the work done’’ (Louisville, etc., 249 U. S. 534,
540). Thus, a ‘‘train’’ is not involved ‘‘where the opera-
tion is that of switching, classifying and assembling cars
within railroad yards”’ (Northern Pacific Ry., 254 U.S. 251,
254).

But, since work in and about yards and terminals em-
braces a multitude of varying circumstances, such as num-
bers of cars handled, distances moved, couplings and un-
couplings made, streets crossed, main tracks and switch
tracks used, speed employed, other movements encountered,

FSET RASS YGF LAS PE 2 alg ms aaa Pte i tas WEISER

pre ces

Lan.

eae Ase RT ge SE ee

and so on, the question whether a given operation falls
outside the domain of switching and constitutes a move-
ment requiring air brakes as a ‘‘train’’ is one of fact, the
Court in effect rules, to be determined in each case on its
own evidence. To achieve the safety which this statute was
designed to secure, this Court, in settling such question of
fact in each case before it, has minutely inquired into the
circumstances of the operation to see what the hazards and
dangers were, in view of the character of the movement
made.

Thus in the Erie case, 237 U. S. 402, 405, 406, 408, the
Court was at pains to point out and consider the facts that
the movement was of twenty-five cars, for three and one-
half miles, at speeds from seven to eighteen miles an hour,
between separate yards, over main line tracks used by
other trains, through nearly a mile of very dark tunnel,
over several switches leading to other tracks, and across
other tracks at grade used daily by approximately thirty-
five trains. Faced with these hazards, the Court concluded
the movement was one requiring the safety of air brakes,
and, therefore, one to be treated as a ‘‘train’’.

Again in the C. B. & Q. case, 237 U. S. 410, 411, 412, the
Court deals at length with the facts of hazard, reciting that
the three movements involved consisted of forty-two, thirty-
six and thirty-nine cars, between yards two miles apart,
lying on opposite sides of the Missouri River, connected by
main line tracks, 3,000 feet of which was single track on
the bridge and used by trains of the Rock Island, Wabash
Railroads, as well as those of the C. B. & Q., and that off the
bridge the tracks used passed through the tracks of the
Union Depot, and intersected at grade twelve or fifteen
tracks of other companies. Following the Erie decision,
this Court held that the hazard and nature of the work done
were such as to bring the operation within the purview of
the air-brake provision.

9

In like manner in the Louisville and Jefferson Bridge
case, 249 U. S. 534, 537, 538, in deciding the question of
fact of ‘‘the essential nature of the work done’’, the Court
inquires with detail into the evidence and points out that
twenty-six cars were transferred three-fourths of a mile
from one terminal into that of another company, moving
part way along a main line, over connections with other
tracks on which other engines and crews must have been
working habitually, across four city streets at grade—one
at fifteen miles per hour; that on leaving defendant’s yard
the group of cars entered upon a track of the Illinois Cen-
tral used by the Big Four and Chesapeake & Ohio as main
line; and that the movement was a back-and-forth opera-
tion, crossing three of the streets once, two of them twice,
and one four times. On these facts the Court held that air
brakes should have been used in order to secure the safety
which it was the purpose of the Act to provide.

In the Northern Pacific decision, 254 U. 8. 252, 253, the
two movements involved were of forty and forty-eight ears
for four miles between Rice’s Point and Furnace. In de-
ciding whether air brakes should have been coupled, the
Court details the following additional facts as ‘‘material’’.
Two segments of the run aggregating more than a mile
were on single track; two streets were crossed at grade,
one of which carried streetcars; five tracks of three inde-
pendent railroad companies were crossed on which freight
and passenger trains were operated ; two other independent
companies use about a mile of this road as a freight line to
piers between Rice’s Point and Furnace. At the two inter-
mediate points of Berwind and Boston, cars are frequently
picked up and set out on, respectively, tracks nine and six.
Reviewing all these facts and citing the C. B. & Q. decision
as to hazard, the Court held that power brakes should have
been employed.

This review makes plain that the Supreme Court already

10

has fully set forth the guiding principles for determining
when a given operation exceeds switching, classifying and
assembling cars for the purpose of making up trains and
becomes a movement requiring use of brakes to obtain the
safety aimed at by Congress.

As the opinions of the Court demonstrate, these princi-
ples are that (1) the facts of each case must be examined
by the trial court to ascertain ‘‘the essential nature of the
work done’’; that is, whether the same was switching,
classifying or assembling cars, or something beyond that;
and that (2) as an aid to reaching the answer to such
inquiry, the hazards are to be looked to, in order to see
whether in view of all the circumstances of the particular
case air brakes were needed to provide the safety Congress
sought. These principles have been so clearly and re-
peatedly set forth in the four decisions rendered that it
would seem wholly unnecessary, and indeed a waste of the
Court’s time and energy, to grant certiorari in order again
to repeat these rules. The lower Courts already have had
the path laid out for them.

Petitioner Has Already Had Two Trials, in Both of Which
the Facts and Law Were Resolved Against It.

If a train movement be viewed in the commonly-accepted
meaning of the term in the railroad industry, there can be
no question but what the movement involved herein is a
switching movement and not a train operation. The move-
ment occurred wholly within the Aurora-Kola freight yard,
was under the jurisdiction of a single yardmaster, was
wholly manned by switch crews, switching occurred at both
the beginning and the termination of the movement, and
the purpose of the movement was to move the cars from the
freight house tracks to the point where they would be in-
corporated into outgoing trains (R. 44-45; Findings 11 and

’
Sig A ag te pee “ We es PRAT AS RS ATS a a tr RT oh Norm Dn Sh ts igen s Meanie 92s eee a

a wk cass 6 OPAC AE RIES SE Re PAIGE ee TRB BES EME NELLA LIERE ARAL LAER ALS DEERE SH REMG SNA AOE A NN RA TER IY

11

13, R. 49-50). Under similar circumstances, the Court of
Appeals for the Ninth Circuit in United States v. Great
Northern Ry. Co., 73 F. 2d 736, declined to permit the gov-
ernment to isolate the switching movements at each end so
as to convert the intermediate switching operation into a
train movement. Moreover, this court declined to grant a
petition for certiorari, although practically everything said
herein as a basis for granting the writ could have been said
as a basis for granting the writ in the foregoing decision
by the Ninth Cireuit. That is to say, it could have been
said that the opinion of the Ninth Cireuit in 73 F. 2d 736
was in conflict with United States v. Southern Pac. Co., 60
F. 2d 864 (C. C. A. 9); Chicago, St. P., M. & O. Ry. Co. v.
United States, 36 F. 2d 670 (C. C. A. 8), and Illinois Cen-
tral R. Co. v. United States, 14 F. 2d 747 (C. C. A. 8), as
petitioner has claimed with respect to the decision herein
of the Seventh Circuit at pp. 11-12 of its petition.

But this court should deny the petition herein for the
same reason that it was denied in United States v. Great
Northern Ry. Co., C. C. A. 9, 73 F. 2d 736, certiorari denied
295 U. S. 752, because the determination of whether or not
any given switching movement should be treated as a train
movement involves the weighing and considering of a multi-
tude of facts and details which not only vary from ease to
case, but which necessarily limit the application of any
final determination in any particular case.

Where a plaintiff has enjoyed the benefit of two trials on
the facts and the law, and has lost both trials, and where
petitioner has brought up an incomplete and unsatisfactory
record for review, it would hardly appear to be appropriate
for this court to issue the writ for the purpose of according
a third trial on the facts and the law. As this court has
said ‘‘A court of law, such as this court is, rather than a
court for correction of errors in fact finding, cannot under-
take to review concurrent findings of fact by two courts

12

below in the absence of a very obvious and exceptional
showing of error. Goodyear Tire & Rubber Co. v. Ray-0-
Vac Co., 321 U. 8. 275; District of Columbia v. Pace, 320
U. S. 698; Williams Mfg. Co. v. United Shoe Machinery
Corp., 316 U. 8. 364; Baker v. Schofield, 243 U. S. 114, 118.”
(Graver Mfg. Co. v. Linde Co., 336 U. S. 271, at 275.)

There would appear to be special merit in applying the
foregoing principle herein where the switching operation
involved has been continuously performed for a period of
45 years without anyone’s having sustained physical injury
of any kind or character (R. 30, 32, 33). Even if there
were a conflict between the circuits, the problem is not suff-
ciently important to grant the petition (see ‘‘ Denial of Cer-
tiorari Despite a Conflict,’’ by Robt. L. Stern, 66 Harvard
Law Review 465-472). |

Respondent respectfully submits the petition for a writ of
certiorari herein, insofar as it relates to the record below —
in case No. 10617, should be denied.

Respectfully submitted,

Epon Martin,

Joun L. Rice,

Anprew C. Scort, |
Counsel for Respondent.

Uiice - SUBTeme UO

pee een ee oe
FER 16 1

tian ~ Ay -

_No. 5 50

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1952

UNITED STATES OF AMERICA,
Petitioner,
versus

CHICAGO, BURLINGTON & QUINCY RAILROAD
COMPANY AND GULF, MOBILE & OHIO RAIL-
ROAD COMPANY.

SEPARATE ANSWER OF RESPONDENT, GULF, MO-
BILE AND OHIO RAILROAD COMPANY, TO PETI-
TION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT.

Epmunp Burks,
Louis F. Guiespm,
Freperick H. Stone,
508 Reisch Building,
Springfield, Illinois,
Cuaries F. Turner,
104 St. Francis St.,
Mobile, Alabama,
Attorneys for Respondent,
Gulf, Mobile € Ohio
Railroad Company.

———————————E——EEE>oIllUylyIii))ly])y)y)y))))]]]]] _ [===

> ecvnere @ BARNES, PRINTERS, SPRINGFIELD, ILL.

INDEX
Page
ID 5 oy Gas 8 ak ae ke he be 1
PES Sc VaknveCneces kes haksanineeaea wine ees 4

SUMMARY OF ARGUMENT

The Courts below considered and applied the law as
heretofore construed by this Court in reaching

Sn: EOE srrcescg ous ewireueces ile eweeaes 4-8
An analysis distinguishing each of the cases from
other Courts of Appeals, cited by Petitioner.... 8-9
Each case must be governed by the facts before the
SD 65:5 WSK ESA Ta LEED TIA a ees 9-10
Reasons in opposition to granting the Writ........ 10-11
TABLE OF CASES

Chicago & Erie R. Co. v. United States, 22 Fed. 2d 729 11
Chicago, St. P., M. & O. Railway Company v. United

oe ee ey ern 8
Illinois Central R. Co. v. United States, 14 Fed.

Ne eats (nw i 5 dane REESE CRRA RRR) 8
Louisville & Jeffersonville Bridge Company v.

United Gtates, 240 U. &. G34 oo. ove ccc enecnces 4,5
United States v. Chicago, Burlington & Quincy

Railroad Company, 237 U.S. 410 .............. 4,5
United States v. Elgin, J. & E. Ry. Co., 182 Fed.

SRR ALA aa AM eee canes Fee 4, 8,10
United States v. Erie Railroad Company, 237

eR Rey enon aentimanias 4,5, 7,9, 10
United States v. Northern Pacific Railway Company,

PEE OE Vis Vidss ss ceycneeneceseadeuteas 4,6
United States v. South Buffalo R. Co., 168 Fed.

i EE ka 50s dh ye her Rae es Mewes teeeea eee 10

United States v. Southern Pacific Co., 60 Fed. 2d. 864 8

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ne . : ¥ sete ae
x é
£

No. 550

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1952

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UNITED STATES OF AMERICA,
Petitioner,
versus

CHICAGO, BURLINGTON & QUINCY RAILROAD
COMPANY AND GULF, MOBILE & OHIO RAIL-
ROAD COMPANY.

SEPARATE ANSWER OF RESPONDENT, GULF, MO-
BILE AND OHIO RAILROAD COMPANY, TO PETI-
TION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT.

STATEMENT

The statement, by Petitioner, relating to the Respondent,
Gulf, Mobile and Ohio Railroad Company, omits several
salient facts which appear to have been quite persuasive
upon the lower courts in reaching the conclusion that only
a switching operation was involved, which we here supply:

The movement, in question, took place in the yards of
the Respondent, located at Venice, Illinois. It con-
tained numerous tracks for the conduct of its switching
operations and was made up of three subdivisions

2

which included the Venice Yard on the North, the Brook-
lyn Yard, adjacent to it on the South and the Middle Yard,
which was adjacent to, and South of the Brooklyn Yard.
(R. G. 16.) The Venice Yard is a classification yard and
the Brooklyn Yard is where the Respondent accepts de-
liveries and makes up trains, and the same is true of the
Middle Yard. (R. G. 23.) The particular movement, of
which complaint was made, consisted of thirty-three
freight cars from the Venice Yards through the Brooklyn
Yards to the South end of the Middle Yard, a distance of
one and one-half miles. (R. G. 9, 26.) In routing this
particular movement the yardmaster does and may send
it over any one of fifteen tracks in the Brooklyn Yard.
(R. G. 31.) The movement is not made on any regular
schedule and is only made when there are enough cars to
warrant the use of an engine and crew to make the trans-
fer. The movement, complained of, was drawn by a switch
engine on December 4, 1950, and did not move under any
train orders, (R. G. 18), but was entirely a yard move-
ment. (R. G. 19.) Jt was stipulated that this movement
was within yard limits and under yard rules. (R. G. 19.)
While it is true there was no finding that there was any
communication from the yardmaster during this particular
movement, the trial Court did find that the Respondent’s
operations in the yards, including the movement com-
plained of, and all similar movements, were carried on
under the supervision of a yardmaster located in a tower
in the yards who had visual control of the movement, and
throughout the yards there was an intercommunication
system which permitted him to constantly control it.
(Finding No. 3, R. G. 41.) The cars that were included
in this particular movement came to the Venice Yards
from four separate freight trains that had terminated in
the Venice Yards and were designated for other railroads,

3

(R. G. 35), and they were transferred by this movement
to the Terminal Railroad Association within yard limits.
(R. G. 19.) The cut of cars was assembled not over forty
or fifty feet North of a public highway, having a crossing
watchman, with the engine thirty to forty feet from the
edge of the pavement, before it started the movement
across the paved street, and it moved at the rate of approx-
imately three miles per hour. (R.G. 19.) It did not cross
any other highway and did not cross the line of any rail-
road, nor did it cross the main line of the Respondent.
(R. G. 20.)

| 2G

ARGUMENT

We do not believe that the Court of Appeals for the
Seventh Circuit has reached opposite results from other
circuits in cases with similar facts, as is contended by Pe-
titioner. Upon examination of the record in this cause and
the opinion below, it is apparent that the Court of Appeals
gave consideration to, and followed, four decisions of this
Honorable Court construing the application of the Safety
Appliance Act. In the instant case the Court of Appeals
relied upon its previous decision in United States v. Elgin,
J. & E. Ry. Co., 182 F. 2d 1. In the latter case the Court
considered the four cases relied upon so heavily by the
Petitioner herein, which were United States v. Erie Rail-
road Company, 237 U. S. 402, United States v. Chicago,
Burlington & Quincy Railroad Company, 237 U. 8. 410,
Louisville & Jeffersonville Bridge Company v. United
States, 249 U.S. 534, and United States v. Northern Pacific
Railway Company, 254 U.S. 251.

The air brakes law was obviously passed by Congress to
provide for the safe control of a train, as it is a matter
of common knowledge that in the ordinary train movement
a number of hazards are encountered which may require the
sudden use of brakes which can only be effectually applied
by air, under the control of the engineer and that, con-
versely, no such occasion, requiring air brakes, arises in
the ordinary switching movement. These hazards have
been considered in other opinions and include the crossing
of highways, both public and private, the crossing of main-
lines of other railroads, the running upon the mainline
tracks of railroads, the operation at great distances where
there is no visual supervision or control other than that
of the train crew, and operations at high speed.

SERMON ERIT HE A INNA AS SSE Re SOA RA IA Se EE

5 »

This Court in United States v. Erie Railroad Company, :

237 U, S. 402, 407, construed the Safety Appliance Act when é

it stated that a train movement is within the operation of :

the Air Brakes Act and that a mere switching movement is iy
not.

In that case it was found that the movement was that of ;

a train because it used mainlines as other trains and was &
exposed to hazards which made it essential that appliances
be at hand for readily checking and controlling the move-
ment.

In the same year that the Erie Case was decided, this
Court in United States v. Chicago, Burlington & Quincy
Railroad Company, 237 U. S. 410, found that a movement
of approximately two miles across a single track bridge
spanning the Missouri River, intersecting at grade 12
or 15 tracks of other companies, passing through the Union
Depot tracks and upon the same line, which passenger
trains and freight trains of other railroads used, was a
train movement within the meaning of the Act. The
Court, in finding this to be a train movement, again con-
sidered whether or not the hazards usually found in con-
nection with train movements were present, and the Court,
finding that the hazards common to train movements were
present, held that the Safety Appliance Act applied.

5
;
*

In Louisville ¢ Jeffersonville Bridge Company v. United
States, 249 U.S. 534, the Court again considered the haz-
ards common to train movements in finding that a move-
ment of a train of cars of 1100 feet in length for a distance
of three-quarters of a mile crossing at grade, three city
streets, two of them twice, one of them three times, a
main track movement of 2600 feet with two stops and
starts on the main track, was a train movement within
the meaning of the Act. The train moved at a speed of
15 miles per hour.

a —_ ham igh 2 eo < sp — _— . 1 Oke tinne ane Qeeaend

6

In Umted States v. Northern Pacific Railway Company,
204 U.S. 251, the Court, in finding a train movement was
involved, said, at page 253:

‘*These additional facts are material: The road for
a distance of a mile at the beginning and for less at
the end is single track. It crosses at grade two streets
on one of which run street cars. It crosses at grade,
at five places in all, lines of three independent rail-
road companies which run freight trains to piers situ-
ated between Rice’s Point and Furnace. One of these
companies also runs passenger trains across defend-
ant’s tracks. In addition, two other independent com-
panies use, under the usual traffic-right agreements,
about a mile of this railroad as a part of their freight
lines to piers situated between Rice’s Point and Fur-
nace.”’

* * * * *

‘Not only were these (the defendant’s) trains ex-
posed to the hazards which that provision was intended
to avoid or minimize, but, unless their engineers were
able readily and quickly to check or control their move-
ments, they were a serious menace to the safety of
other trains which the statute was equally designed
to protect.’’ (p. 254)

This Court has stated in the foregoing cases that the
controlling test of the statute’s application lies in the es-
sential nature of the work done, and the Court has, in de-
termining the character of a particular movement, consid-
ered whether it had the hazards common to a train move-
ment, which the statute was designed to control, namely,
whether or not the movement was such that there were
hazards that would require immediate application of ef-
fective brakes which could only be done by air in charge
of the engineer.

In the instant case, the movement started 50 feet from a
public highway crossing, which was protected by a cross-

7

ing watchman, and crossed the highway at the rate of
3 miles per hour, did not touch the main line track of any
railroad, and proceeded along one of 15 different switching
tracks, according to the directions of the yard-master. Af-
ter crossing the highway, the movement proceeded at ap-
proximately four to five miles per hour and covered the
distance of approximately one and one-half miles within
the yards, consuming the time of thirty-nine minutes, the
entire movement being under the supervision of a yard-
master in a tower in the yard, who not only had visual
supervision of the movement throughout the yard, but who
had control of the movement through an interecommuni-
cation system which allowed him to page the switching crew
by means of loud speakers on tall poles spaced throughout
the yards. There was also provided means of talk-back
whereby any member of the switching crew from short
intervals along the tracks could talk back to the yard-
master. The movement was a result of four freight trains
terminating in the yards of the Respondent, the cars in-
volved being destined for various railroads, but being
switched by the Respondent upon switching tracks to the
adjoining yards of the Terminal Railroad Association,
but yet witihin yard limits. (R. G, 41-42.) The very pur-
pose of the Respondent’s yards was to receive and break
up trains for further transfer of cars and to make up
trains to be dispatched along the road. No trains, either
passenger or freight, passed through the Defendant’s yard.
This Court, in United States v. Erie Railroad Company,
237 U.S. 402, 408, has defined this to be a switching move-
ment, in the following language:

‘But it is otherwise with the various movements
in railroad yards whereby cars are assembled and
coupled into outgoing trains, and whereby incoming
trains which have completed their run are broken up.
These are not train movements, but mere switching

TARR ath RL ET Mee ROT ey

i ag ELE Ne NA ASH eS Wanye een

operations, and so are not within the air-brake pro-
vision.’’
We submit that the Court below followed this language
in reaching its decision in United States v. Elgin, J. & E.
Ry. Co., 182 Fed. 2d 1, and in the instant case.

Although the Petitioner (Petition, p. 12) states that it
is apparent that the Safety Appliance Act is not being
applied to railroads in the Seventh Circuit, the opinions
rendered in the Seventh Circuit not only show this state-
ment to be untrue, but that the Seventh Circuit has given
careful consideration to the Safety Appliance Act and the
decisions of this Court construing it.

A few excerpts from the opinions rendered in safety
appliances cases from the several circuits show that any
diversity in their conclusions arises from the facts rather
than any misapplication of the law:

United States v. Southern Pacific Co., 60 F. 2d. 864,
865, (CA 9): ‘‘8 city streets are crossed at grade.’’

Chicago St. P.,M. € O. Railway Company, v. United
States, 36 Fed. 2d. 670, (CA 8): ‘‘Four city streets
used by the public were crossed, and two tracks of
other railroads, not used for main line traffic, were
crossed.”’

Illinois Central R. Co. v. U. 8. (8th Cir.), 14 F. 2d
747: (p. 748) ‘‘* * This movement was through the
business or warehouse part of the City. * * * The plat
shows that this particular track intersects at grade
Nicholas and Fourteenth streets, much used by trucks
and other traffic; that Webster and Cass streets, used
by employees of the Union Pacific Railroad going to
and from the railroad shops, were crossed at grade,
as well as some switch tracks of the Chicago & St. Paul
Railroad at Fourteenth street, and the Missouri Pacific
tracks at California street; also that a portion of this

cages” . ’ x saith Te ee pe TT wie 7 nif alabene ‘ eneaeednaen

9

track between Webster and California streets was
jointly used by defendant and the former road.’’

(P. 749) ‘** * The streets of a busy city and tracks
of other railroads were crossed at grade, and there
was ever present the probability that the train might,
at any time, have to be stopped suddenly to avoid an
accident. This could not be done without the use of
train brakes. There was a serious danger, not only
to the crew of this particular train, but to the public
and other trains and employees as well, which it was
the object of the law to minimize as far as possible.

‘«** * As we have already shown, this so-called
Grace street yard was divided into two sets of switch-
ing tracks, a considerable distance apart, and con-
nected by a single lead track, from which the public
was not excluded. This part of the yard, at least, was
used by other railroads, and was not the private prop-
erty of the plaintiff in error.’’

We submit that the movement, in question, was a mere
switching operation within the language of this Court as
set forth in United States v. Erie Railroad, 237 U. S. 402,
408 and that each case must be decided upon the factual
situation before it, in the light of the rules laid down by
this court; that if the several circuits have reached differ-
ent conclusions that it is because of the difference in the
facts before them rather than a difference of opinion as
to the applicable law and that so long as the courts consider
the essential nature of the work done that their conclusions
will be governed by the facts before them in each case that
is presented.

The Respondent, GULF, MOBILE AND OHIO RAIL-
ROAD COMPANY, cannot agree with the contention
of the Petitioner that the law regarding the safety of rail-
road operations has been given a nebulous meaning in the
Seventh Circuit, or that the fact that the Seventh Circuit

© 4
a

10

embraces the railroad center of Chicago, in itself is suffi-
cient to warrant the grant of certiorari in this case. An
examination of the decisions of the several circuits will
disclose that the diversity of their opinions as to what are
train movements arises, in each instance, out of the dif-
ference in the particular factual situation under consid-
eration rather than any misconception of the law. We be-
lieve that the facts of each case must govern the Court
in determining what may be a train or a mere switching
operation. The opinion of the Second Circuit in the case
of United States v. South Buffalo R. Co., 168 Fed. 2d 948,
upon which Petitioner heavily relies, discloses a situation
wholly unlike that presented in the instant case. The facts
which distinguish it are stated as follows: (950)

‘«* * This crossing was protected by a guard and was
used by employees and business visitors of that com-
pany but there was uncontradicted evidence that a
considerable number of people crossed the tracks there,
particularly at the beginning of the morning and at
the end of the day when the plant closed. There is
further evidence by an inspector of safety appliances
for the Interstate Commerce Commission who had
had thirty-two years railroad experience, that there
was grave danger in moving these cuts of cars over
the grades involved in the movements without hav-
ing the air brakes hooked up. * * * *”?

In the case of United States v. Elgin J dé E Ry. Co., 182
Fed. 2d 1 (CCA 7), and in the instant case, there was no
evidence tending to show any such hazards as were present
in the South Buffalo case and the Seventh Circuit in apply-
ing the law laid down in United States v. Erie R. R. Co.,
237 U. S. 402, 408, properly found that there was no train
movement involved within the meaning of the Act. There
was not involved any grade, in the instant case, over which
the movement, in question, passed, nor was there present
a situation similar to that of the South Buffalo case. Had

-_— eR ee eee ee aoe

11

there been, the Seventh Circuit would, undoubtedly, have
reached the same conclusion as the Second Cireuit in find-
ing that a train movement was involved. We desire to
point out that the Seventh Circuit had no hesitancy in find-
ing that a train movement was involved under more com-
pelling facts in the case of Chicago & Erie R. Co. v. United

States, 22 Fed. 2d 729. The decisions of the several cir- i
cuits are based upon the factual situations before them 4
and they are not in conflict with each other as to the law. i
There is, therefore, no need for this Court to again con- by
sider the air brake sections of the Safety Appliance Act. ¢
In omitting any definition of a ‘‘train’’ in the enactment Z
of the Safety Appliance Act, Congress clearly recognized
that the application of the air brake provisions would in &

every instance be dependant upon the facts, and intended
that it should be.

CR.

For the reasons above set forth it is respectfully sub-
mitted that this Court should deny the petition for writ
of certiorari.

Respectfully submitted,

Epmunp Burkg,
Louis F’. GruesPte,
Freperick H, Stone,
508 Reisch Building,
Springfield, Illinois,
Cuaries F. Turner,
104 St. Francis St.,
Mobile, Alabama,
Attorneys for Respondent,
Gulf, Mobile € Ohio
Railroad Company.

Pea san we i SE ey rR es KANNAN St AE A TENE I MAN RI Ci ee |

¥
;
:
Inthe Supreme Court of the Bnited States |
&
OcToBER TERM, 1952 ‘
No. 550 :
UnitTep STATES OF AMERICA, PETITIONER
v. i
CuicaGco, BURLINGTON & QUINCY RAILROAD
CoMPANY, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SEV-
ENTH CIRCUIT
REPLY MEMORANDUM FOR THE UNITED STATES
The respondent, Chicago, Burlington & Quincy :
Railroad Company, opens its brief in opposition
with an objection to the failure of the Government F

to include in the record nine exhibits. The first of
these (Pet.’s Exh. 1, R. 18) was a large map of the :
trackage involved. The other eight exhibits (Re- 5
spondent’s Exhs. 1-8, R. 22-25, 28) were photo- E
graphs of the track. Upon receiving the brief in
opposition, petitioner wrote respondent, offering to
stipulate that the documents in question, which had
not been certified to the court of appeals, be treated
as part of the record in the Supreme Court. Re-
spondent’s counsel has declined so to stipulate,

(1)

2

though forwarding the photographic exhibits, and
stating that he is ‘‘ willing that you make any use
of same to which you are entitled under the law
and the Federal rules.’’ Copies of this correspond-
ence are on file with the Clerk.

It appears that the map, although never for-
mally introduced in evidence (having been marked
only for identification, R. 13), was used as the
basis for the examination of the witnesses during
the trial (R. 13-17), and indeed was referred to
and relied upon in the district court’s opinion (R.
45). Since the district court, with the obvious
consent of the parties, took notice of the map, even
though it was not introduced in evidence, the ap-
pellate courts are, we submit, entitled similarly to
take judicial notice of it. The map accordingly is
filed herewith for such use as the Court may feel to
be appropriate.

Although the map is extremely bulky and cum-
bersome, we hope the Court will examine it, for
it shows—much more effectively than can any de-
scriptive statement such as is found in the petition
for certiorari—that the track in question (the red
line) is a single track, paralleling three main
tracks, between two areas containing large num-
bers of tracks which would commonly be called
yards. This shows that the case is indistinguish-
able from United States v. Southern Pacific Co.,
60 F. 2d 864 (C. A. 9), certiorari denied, 287 U. 8.
667 ; Chicago, St. P., M. & O. Railway Co. v. United
States, 36 F. 2d 670 (C. A. 8); and Illinois Central
R. Co. v. United States, 14 F. 2d 747 (C. A. 8),

— . - 7 . nal -_ aes xa eae
NEPA LIM TDS EP OLLI EINES PEL ON ERE IRE SAEED HE REN PDI IOI ME EMAILS EOE PRIA -— S
¢

3

-certiorari denied, 273 U. S. 752, cited on page 11 of
our petition as being in conflict with the decision
of the court below.

We also are filing herewith the eight photo-
graphic exhibits introduced by the respondent
which neither party sought to have certified to the
Court of Appeals.

Respectfully submitted,

/ phe of x. .

Acting Solicitor General.
Marcu 1953.

VY U. S. GOVERNMENT PRINTING OFFICE: 1953 244241 1234

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_1497%3A1. Public record. Not legal advice.