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UNITED STATES v. BALTIMORE & O. R. CO.

June 11, 1951

UNITED STATES
v.
BALTIMORE & O.R. CO.



The opinion of the court was delivered by: GOURLEY

This is a proceeding by the United States of America against The Baltimore and Ohio Railroad Company to recover penalties for alleged violation of Section 2 of the Federal Safety Appliance Act, 45 U.S.C.A. § 9.

The Act, as it relates to the question before the Court, provides: 'Whenever, as provided in sections 1-7 of this title any train is operated with power or train brakes not less than 50 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 cars in such train which are associated together with said 50 per centum shall have their brakes so used and operated; and, to more fully carry into effect the objects of said sections, 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 operated as aforesaid; and failure to comply with any such requirement of the said Interstate Commerce Commission shall be subject to the like penalty as failure to comply with any requirement of this section.'

 Under authority of the section just quoted, the Interstate Commerce Commission by order of June 6, 1910 increased this percentage to 85.

 The defendant railroad contends that each of the operations was performed solely by switching crews and constituted switching movements, rather than train movements in interstate commerce.

 The sole question of law is whether the movements set forth in the four causes of action are trains requiring the use of air brakes on at least 85% of the cars, or are they mere switching operations.

 Findings of Fact

 First Cause of Action

 1. The defendant is a common carrier by railroad in the State of Pennsylvania and elsewhere, and was operating said train in interstate commerce.

 2. On April 7, 1948, the defendant's yard industrial engine operated by a yard crew hauled 34 freight cars, both loaded and empty, from the interchange track of the McKeesport Connecting Railroad, National Tube Company Plant, to its Demmler Yard, all at McKeesport, Pennsylvania.

 3. That during said movement, the air brakes were in use and operation on the locomotive, tender and head car only; the air hose between the head car and following car was disconnected, thus rendering the air brakes on the remaining cars inoperative.

 4. Said movement was made intact for a distance of 7620 feet, of which 384 feet was over side tracks and the remaining distance of 7236 feet over main-line tracks.

 5. In performing this movement, the engine and all cars traversed at grade crossings, two switching tracks of the Pennsylvania Railroad, two main tracks of the Pittsburgh & Lake Erie Railroad, one main track of the defendant, and four public street grade crossings.

 6. No additional cars were picked up or set out en route from the time of the commencement to the termination of said movement, and during said movement the speed of the engine and cars did not exceed six miles per hour.

 7. Permission to make this movement was given by the interlocking tower operator, who also gave permission to cross the Pittsburgh and Lake Erie Railroad Company and Pennsylvania Railroad Company tracks.

 8. During said operation the defendant did not have at least 85% of the cars, which comprised said train, operating with air brakes.

 9. Said movement of the train did not constitute a switching operation under the terms and provisions of the Federal Safety Appliance Act.

 10. Said operation constituted a train movement in interstate commerce, which required the use of air brakes on at least 85% of the cars in said train movement.

 Second Cause of Action

 1. The defendant is a common carrier by railroad in the State of Pennsylvania and elsewhere, and was operating said train in interstate commerce.

 2. On April 8, 1948, the defendant's yard industrial engine operated by a yard crew hauled 23 freight cars from the tracks known as the Highland Slag Dump of the Duquesne Slag Company to the defendant's Glenwood Yard, all in the City of Pittsburgh, Pennsylvania.

 3. That during said operation the air brakes were in use and operation on the locomotive, tender and first three cars only; the air hose between the third car and the following car being disconnected, thus rendering the air brakes on the remaining cars inoperative.

 4. Said movement was made intact for a distance 8484 feet, of which 600 feet was over side tracks and the remaining distance of 7884 feet over main-line tracks.

 5. In performing this movement, the engine and all cars crossed three other main-line tracks of the defendant, and one private road crossing.

 6. No additional cars were picked up or set out en route from the time of the commencement, and during said movement the speed of the engine and ...


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