The opinion of the court was delivered by: MCILVAINE
In order that a better understanding of my formal findings of fact and conclusions of law might be accomplished, I think it would be advantageous to preface them by a brief discussion.
In this case it appears that train loads of ore, coke, and other materials are brought from points other than the Edgar Thomson Works of the United States Steel Corporation, which is an integrated basic iron and steel plant, consisting of seven blast furnaces, a sintering plant, open hearth furnaces, slab mills, raw material handling facilities and various supporting operations, for processing at that plant. The coke is brought from Clairton some miles distant in cars which comprise a train and are part of a train movement. The limestone and other materials such as dolomite are brought from North Bessemer in the same manner; tap cinders are brought in from Edgar Thomson Open Hearth. These materials are placed in an area of the Union Railroad's yards, located within the Edgar Thomson Works, known as Port Perry. The cars are stored there, and when the industry orders a car of limestone, coke, or dolomite, the amount requested is taken to the requested place in the plant. After these cars are emptied, they are taken out of the plant proper and put in the adjacent yards. It is this latter operation which the Government urges is a train movement. Once out of the plant proper and in these yards, these cars are either sent back for more limestone, coke, or other materials or else otherwise disposed of.
The case has been exhaustively presented by the Government and railroad counsel. All agree that the issue is whether this is a train movement or switching operation. In the words of the United States Supreme Court, 'The controlling test of the statute's application lies in the essential nature of the work done * * *' United States v. Chi. Burl. & Q.R.R., 1915, 237 U.S. 410, 412, 35 S. Ct. 634, 636, 59 L. Ed. 1023.
In the words of another Circuit:
'After wrestling with it for some fifty years, courts have accomplished little other than to decide on the particular facts of the case whether the movement was that of a train within the meaning of the Act. It is apparent, therefore, that a holding in one case carries little weight as a rule for decision in another. Even when the facts of the case are disclosed, the question must depend largely upon the opinion or judgment of the court called upon to make a decision.' United States v. Chicago, B. & Q.R. Co., 7 Cir., 199 F.2d 223, 226.
Our own Circuit has stated that the decision may be a jury question:
'Whether, therefore, the movement of the draft in question with air-hoses uncoupled was a violation of the Act depended upon whether the draft was a train and whether, accordingly, the movement was a train movement or a switching movement. There was evidence that the cars were loaded at one yard and made up into a draft for movement to another yard in a group of yards; that the yard of origin and the yard of destination, though almost if not entirely contiguous, were separate yards; that the train was to be hauled from one to the other, which, as one witness described it, was a 'dead haul'; that during the haul between yards nothing was to be done in a switching way and that on its arrival at the yard of destination it was to be broken up and its cars assigned to their proper trains.
'The evidence permitted conflicting inferences. There was enough evidence for the jury to determine as a fact either that the movement was of a train or of a draft for switching purposes.' Philadelphia & R.R. Co. v. Bartsch, 3 Cir., 9 F.2d 858, 860.
Congress in its wisdom has seen fit to exempt switching operations from the power brake requirement of the Act. If in that exercise of their legislative power they acted wisely or not is not a question upon which this Court should or would express an opinion. But we do have a proper question before us. Is this a train movement or a switching operation? Applying my own experience to the evidence of this case, I find that this was a switching operation. The view of the premises strongly buttressed this opinion.
1. The Union Railroad Company (hereinafter called defendant) is a Class 1 switching railroad located entirely in Allegheny County, Pennsylvania. It runs from North Bessemer on the north to Mifflin and Clairton on the south. Other tracks lead off from about its center to Duquesne and Homestead.
2. Among the industries which it serves is the Edgar Thomson Works of the United States Steel Corporation, located on the north bank of the Monongahela River. The Edgar Thomson Works is an integrated basic iron and steel plant, consisting of seven blast furnaces, a sintering plant, open hearth furnaces, slab mills, raw material handling facilities and various supporting operations.
3. The railroad tracks in the Edgar Thomson Works are owned in part by the defendant and in part by the industry. All of the tracks are used to serve the industry and defendant's crews operate over all of them. There are various groupings of tracks in the Edgar Thomson Works area for the ...