UNITED STATES v. SEABOARD A. L. R. CO.
Legal provision: 45 U.S.C. 1
Argument of John F. Davis
Chief Justice Earl Warren: Number 10, United States of America, Petitioner, versus Seaboard Air Line Railroad Company.
Mr. John F. Davis: Mr. Chief Justice, if it please the Court.
This case involves a simple question on the application of the Safety Appliance Law.
Specifically, the issue here is whether the air brake requirements of that law were required to be followed by the Seaboard Air Line Railroad, in its performance of certain terminal operations in Hopewell, Virginia.
It -- it had an -- on four occasions, moved strings of cars, about 25 cars each, a distance of about two miles in making deliveries to or making pickups from industrial establishments in Hopewell.
And in all of these occasions the air brakes were not connected.
The United States brought suit for civil penalties $100 for each violation, $400 is the total.
Now, although this penalty is small, the issue in this case is of tremendous importance because it affects the -- the lives and the -- the safety of thousands of trainmen.
When President Harrison asked for this legislation back in 1890, he submitted figures to the Congress that showed that during the year preceding his message, 2450 trainmen had been killed in operating accidents and 22,390 has been injured and of these, in two years, over 1000 had been injured in falls from the tops of cars, which were due, in part, to the use handbrakes.
One of the Senators, in discussing the legislation, estimated that in the course of eight years, the equivalent of the entire railroad operating force would be killed or injured.
And so the Congress passed the legislation.
And I looked at the reports on safety for the year 1958 and the total of persons killed in operating accidents, trainmen was down to 154.
Justice Potter Stewart: You're not suggesting that this statute (Inaudible)
Mr. John F. Davis: No, but this statute, I'm --
Justice Potter Stewart: (Voice Overlap) --
Mr. John F. Davis: -- suggesting is -- is important and has had an important effect.
We -- we can't tell how much.
The general question before the Court is whether this legislation is going to be enforced regarding to its explicit terms of whether the railroad shall be allowed to return in part, at least, to the situation that they were in before the legislation was passed.
Now, the terms of the law which are before us, the questions of law are not difficult.
The statute is set forth -- the statutes are set forth on pages 2 and 3 of my brief.
The first provision, Section 1 of the Act, was passed in 1893 and it provides for power brakes to be placed on cars, but it provides no specific measure of how -- how many.
It says instead that they shall be sufficient so that the engineer may control the speed of the train.
This proved to be not sufficiently definite and in 1903, it was amended and the provision which is still in effect appears at the bottom of page 3 of our brief.
And in this law, they provided that at least 50% of the -- of the cars should be provided with air brakes, that the Interstate Commerce Commission might after hearing, increase though not decrease, this number.
And that all other power brake cars, that were part of the train, should be connected.
So that they were required to carry only 50% with power brakes, but if added cars did have power brakes, they too must be connected.
And the Interstate Commerce Commission has implemented that by its regulations which appears at the top of page 4, providing that not less than 85% of the cars must have their power brakes connected.
In -- in actual operating effect, all the brakes -- all the cars must be connected because in effect, all cars do have power brakes and since you are required to connect any that do have them, in effect, all of the brakes -- all of the cars must be connected at this time.
Now, the facts are these.
The Seaboard Air Line Railroad moved four strings of cars over its yard tracks within the City of Hopewell, Virginia.
In each case, there were -- the strings of cars consisted of between 23 and 29 cars and they were moved a distance of two miles in three of the cases and one mile in the fourth without leaving off or picking up any extra cars.
These were -- in other words, uninterrupted movements of one or two miles.
Now, these movements occurred after freight trains, only freight operations are involved.
Freight trains had been brought in on a spur track from the main line to Hopewell, which was at the end of this -- of this side track.
There the cars were -- the trains were dismantled, taken apart in the classification yard and reassembled into smaller groups for delivery to the ultimate consignees.
And, our case deals with this movement of the delivery of 23-29 cars to the consignees are picking up these cars from the factories and bringing them back to the classification yard where they would again be combined into -- into larger trains.
These operations were--
Chief Justice Earl Warren: But Mr. Davis, may I ask it wasn't in that process that you had as many as 29 cars?
Mr. John F. Davis: That's right.
Chief Justice Earl Warren: Going -- to onto the --
Mr. John F. Davis: Individual consignees.
Chief Justice Earl Warren: In individual consignees.
Justice Charles E. Whittaker: That's right.
Justice Charles E. Whittaker: (Inaudible)
Justice Charles E. Whittaker: No, to one consignee.
These were uninterrupted movements without leaving off or picking up any cars.
They were movements in -- they had four operations involved, involving -- the first one was 26 cars, the second 28, and the third 29, and the fourth was 23.
And in each case, each of the three -- of three cases, they moved the entire three miles without stopping, well, they may've, I don't know what they -- without stopping but without leaving off or picking up any cars.
In the other case, there was a movement of only one mile.
They did pick up some cars of an interchange with the Norfolk and Western after they'd proceeded one mile, so that we have three movements of two miles and one movement of one mile.
These -- these operations were performed by trained -- by yard crews as the movements were ordered and directed by the yard manager.
The motor power was a diesel switching engine and the speed at which the train moved was -- was limited.
Their rules were that they must be able to stop within half the distance that they could see, half the line of vision.
The operations carried them across numerous streets and roads, at grade crossing and there were two or three intersections with Norfolk and Western spur tracks.
The violation which was involved was that they didn't connect up the air hoses on these cars.
So far as I know, all of the cars were equipped with power brakes but the -- for operating reasons, the train -- the -- the crews determined to rely just on the train brake and not connect up the compressed air with the brakes on the individual cars.
This is not because it couldn't be done because the Seaboard had used air brakes on these very runs from the year 1951 until the year 1956.
So far as I know, there were no violations during that time.
In this operation they did connect their -- their air brakes.
But in 1956, because of these operating reasons, it caused delay.
It took 20 minutes to connect up the brakes at the beginning, 20 minutes to disconnect them.
Took additional men.
For operating reasons, they decided they would stop, and they stopped in January of 1956 and made as in -- from then on it was their -- their policy not to connect these brakes.
So compared to its neighbor the ICC the inspectors observed these actual operations.
They filed the complaint and a civil suit followed.
The Court below, which is the Court of Appeals for the Fourth Circuit, found that the movements in question were not covered by the Safety Appliance Act on the ground that these strings of cars which I have described were not “trains” within the meaning of -- of the Act.
And that's the only question of interpretation we have really in this case is whether when they used the term “train” in the Act, they mean to refer to this type of operation.
Now the Third Circuit reached the conclusion that they were not trains because it said that these were “switching operations.”
And again that's in quotes, “switching operations”.
Now the Act doesn't -- doesn't contain any specific exception for switching operations.
But in the early cases that came before this Court, the Court accepted an interpretation which the ICC and the Department of Justice suggested that there were certain limited movements by a locomotive, one or two cars involved in taking apart or putting together trains where they were continually dropping off and picking up trains which -- cars which were not trains.
They -- we suggested they were switching operations.
And in the early cases before this Court which dealt with transfer operations in which the Court held that the Safety Appliance Laws did apply, they recognized that that would be an exception for such -- for such a -- an operation.
It wasn't because it was switching, however.
There wasn't any -- there isn't any exception for switching.
It was because they felt in that type of operation, a train “was not involved.”
Now we think it's decisive in this case that there were mass movements of such relatively large numbers of cars over such a relatively large distance and without interruption.
This it seems to us, is not switching, is -- and is a -- it is a use of a -- of a train in the -- in the normally accepted use of the term “train.”
Justice John M. Harlan: What do you regard as the determinative factor, the number of cars or the uninterrupted character of the haul or a combination of both?
Mr. John F. Davis: Well certainly it can't be the number of cars by itself because there'd be many trains or there'd be one -- one car or two cars which would be trains and everyone would recognize as trains.
Many passenger trains will have only one or two cars so that certainly it wouldn't require a -- a long string of cars in order to be a train.
And the length of the -- the distance -- the distance of the move, too, is not and I don't believe it has to be as long as -- as two miles because well, one of the four cases which have been before this Court is the Louisville & Jeffersonville Bridge Company.
In there was a distance -- was three-quarters of a mile and that was of -- of uninterrupted movement.
I think that you just have to look at the combination of what the railroad is actually doing to see whether it is dismantling trains, putting them together, spotting cars on them, or whether it's making a movement from one place to another, a transporting movement of the string of cars.
Justice John M. Harlan: Isn't that what the lower court did?
Mr. John F. Davis: The lower court in this case -- well, the lower court in this case, said that it was switching.
That they -- they in -- in effect, they say we'll have to find out whether or not this is switching and they took into consideration the fact that there were crews -- switching crews and that it was within the yard, limited speed, and those -- and those factors.
I do not think that it was -- the court was correct in trying to assess the dangers which were involved in the particular movement.
I think that Congress, when it adopted this law said that all trains -- all trains should have the air brakes connected and from then on, the purpose of the court with the -- the objects of the court should not have been to reappraise whether this was necessary for safety, but they should have been merely do -- approaching whether or not we do have enough cars to be a train.
Justice John M. Harlan: The court hadn't characterized this as a switching movement, to lay down perhaps what we agree on.
Proving the doctrine, would you be up here?
Mr. John F. Davis: Well, if it were a pure factual question of whether if they -- whether this was a train, I -- I doubt that you would have taken the case.
I mean if it was just a question of individual -- of the application to an individual movement if there'd been no -- what we conceive to be a misconstruction of the statute, a misapplication of the statute, unless that occurs so frequently that we have to be up here because the statute is whittled away so there's nothing left of it.
But obviously, each individual case can't be passed upon by this Court.
We think that unless Congress -- unless there's some compelling reason to believe that Congress used this term “train” in a technical sense to exclude some operations, that it must be taken in this ordinary common sense meaning.
Now I must tell the Court that at the time the Act was passed, there was a technical definition of “train” which had been adopted by what was then called the American Railway Association, the predecessor of the American Association of Railroads today.
And they had a -- a rule -- standard operating rules for railroads and in this they did define a “train.”
And they defined it much as it's defined in the American Association of Railroad Rules today.
It's quoted on page 18 of my brother's brief as “a locomotive or more than locomotive couple, with or without cars and showing markers.”
This definition is just not helpful in connection with the use of air brakes.
It had its purpose but it -- whether or not a train shows markers has got no significance whatsoever --
Justice Potter Stewart: What are markers?
Mr. John F. Davis: Markers are the devices which are carried on the rear of the last car of a train.
In the day time, they are flags.
At night time, they're lights.
And the reason that this definition occurs in these rules is that in the old days of single-track operation, on a train -- trains would separate.
The -- the linkage was and it stood between cars, and trains would sometimes separate in operation and the engineer wouldn't know it.
Then if a train is -- passes another train on a -- on a switch and the switchman looks up and see as it go by and turns the waiting train into the track, he wants to be sure that all of the train has gone by.
Otherwise, there'll be a collision down the road.
So he knows that the train has gone by when he sees the markers on the rear platform of the -- of last car.
And this is -- this is a very realistic operating practice and something that's -- that s got nothing to do whether you ought to connect the air brakes.
In fact under that particular rule, a single -- a single locomotive without any cars at all or two locomotives coupled are -- are considered a “train.”
And obviously the air brake regulation which has nothing to do with it.
Actually, this rule was called to the attention of the court in the early cases, the Erie case and the Chicago, Burlington & Quincy case which were the first two to come up under this provision of the law.
And, these -- this provision and it's right with its definition of “train” was called to the court's attention and the court brushed it aside by saying that it had no relation to the -- to the -- what Congress had in mind in this particular statute.
And so we suggest to the Court that, as the -- as the Court has said in one of the other cases, a string of cars, 26 cars, drawn by a locomotive is in common sense a train and this is what Congress had in mind in defining when the brakes should be coupled.
Justice Charles E. Whittaker: Mr. Davis, is there any case aside from Northern Pacific too, that purports that it's by this Court that purports to contain any definition of the exempted activity?
Mr. John F. Davis: Well, the Erie case.
Not a definition but they--
Justice Charles E. Whittaker: That we see --
Mr. John F. Davis: But they refer the -- the Erie case and the Chicago, Burlington case.
In fact all of these four cases refer to switching operations as example.
Justice Charles E. Whittaker: Now, I noticed Mr. Justice Brandeis in Northern Pacific said, “A moving locomotive with cars attached is without the provisions of the Act only when it is not a train, as where the operation is that of switching, classifying, and assembling cars within railroad yards for the purpose of making up trains.
Is there any other definition?
Mr. John F. Davis: Yes, Justice Clark in the Louisville & Jeffersonville Bridge Company case, which is the third of the four cases, refers to switching operations as a movement of one or a few cars for a short distance.
And I think he also adds, “in the process of sorting, selecting, or classifying those cars.”
I think if I had to pick a definition, I think I'd pick -- I think Justice Clark's one in Louisville & Jeffersonville Bridge Company case is -- is as definite as anything there is in any of the four cases.
Justice Charles E. Whittaker: Is this area that we're concerned with here in your view within railroad yards?
Mr. John F. Davis: This -- this area is without question within the marks which the Seaboard has set up as defining their railroad yard.
Justice Charles E. Whittaker: Is the lead track extending from a classification yard into an industrial section and from which spurs turn the -- to the side to the industries, isn't it?
Mr. John F. Davis: That is right.
Justice Charles E. Whittaker: And, it also extends to the Norfolk and Western interchange.
Mr. John F. Davis: Yes, about halfway along the --
Justice Charles E. Whittaker: Yes.
Mr. John F. Davis: -- tracks, there's an interchange.
And all of these move under yard rules.
The -- the purpose of yard limits as set up by the railroads where they define the operating rules for -- for movements there.
And when they're within the yard, they move under directions of the yardmaster rather than on schedules or under train orders and they move under certain conditions.
And these trains without question, under the railroad rules, were moving under those conditions.
Those are the facts of this case.
Justice Charles E. Whittaker: Were these operations essential to the switching, classifying, and assembling then within those railroad yards of these cars?
Mr. John F. Davis: Well, we believe not.
We believe that what is involved here is a transfer movement of strings of cars from the classification yards to the industries where they are to be delivered.
I -- I think Mr. Justice Whittaker, that I depart a little from those cases and suggest in questioning whether or not the term of whether this switching is really controlling.
I think that in those cases what they are saying is that in most switching operations, trains are not involved.
But I don't think we really get very far in trying to define the word “switching” as such.
I think that we might as well go back to the Act and see whether or not this appears to be a train.
Chief Justice Earl Warren: Mr. Davis, may I ask if -- if the Safety Appliance Act was -- was for the sole purpose of protecting the employees of the railroad or does it have to do also with safety for the public generally?
Mr. John F. Davis: Oh, it's very important for the safety of the public generally.
Chief Justice Earl Warren: Well then wouldn't the --
Mr. John F. Davis: But--
Chief Justice Earl Warren: -- fact -- wouldn't the fact that in this case you have several grade crossings, several crossings of -- of railroads, also be an important factor in determining whether -- whether the air brakes were -- were used or not in this operation?
Mr. John F. Davis: I think it has a very great impact on the safety.
But I think that Congress intended to adopt the rule of thumb in this case.
I think that they wanted to take away from the railroads -- from the ICC any question of evaluating the safety of individual movements.
And they wanted to say that we're going to set down a rule that you connect up your air brakes on all trains.
Now, there's no question that the public wondering would some of these streets remain highways in there and there's no question that the ability of a train to stop quickly is important to the safety of -- of people crossing.
In fact most of the accidents today, most of the fatalities on railroad operations as Your Honors know it in intersection -- highway grade crossings rather than in tracks.
Justice William J. Brennan: Mr. Davis, to the extent that a train may operate and not violate the Safety Appliance Act without these air brakes connected, I take it that an employee injured in such a movement would not be able to predicate any claim for its injury on the failure of the air brakes to be connected.
Is that right?
Mr. John F. Davis: That is right.
There's a specific provision for -- in the Act for the protection of employees where there is a violation of the -- of the statute which means -- and he wouldn't get the protection of that provision of the Act, if they weren't provided.
The last case that came before Your Honors was a case of an -- a compensation.
It was the Baltimore and Ohio against Jackson case where the question was -- it was a five-to-four decision as I remember it, the question of whether or not a motorcar pulling a handcar was a locomotive and whether it had to have certain of the appliances which the Safety Appliance Law requires for locomotives.
And in that case the Court held that this motorcar was a locomotive.
Justice Hugo L. Black: It was a --
Mr. John F. Davis: It wasn't a decision -- yes, Mr. Justice Black?
Chief Justice Earl Warren: But didn't we have one that --
Mr. John F. Davis: What?
Chief Justice Earl Warren: Didn't we have one that did bear on this somewhat?
Wasn't it that oil tank -- the oil tank that the -- not the employees of the railroad but an outsider was -- was filling the oil -- the oil tank in the--
Mr. John F. Davis: That wasn't the Safety Appliance Law, I think.
Chief Justice Earl Warren: Yes, I --
Mr. John F. Davis: Although I may be wrong.
Chief Justice Earl Warren: I thought it was the --
Mr. John F. Davis: I --
Chief Justice Earl Warren: It was those runways to be -- that weren't -- weren't on the car.
Mr. John F. Davis: Oh well, they -- they do.
The Safety Appliance Laws -- you're quite right there, Mr. Chief Justice.
The Safety Appliance Laws require runways to be of a certain width and they are inspected to be sure that no boards were fallen off and -- and it was very likely.
I and don't -- I'm not aware of the particular case, but it is --
Chief Justice Earl Warren: (Voice Overlap) --
Mr. John F. Davis: -- covered by the Safety Appliance Laws.
Chief Justice Earl Warren: Several years ago, we had one of that.
Mr. John F. Davis: I've to reserve the rest of my time for rebuttal.
Chief Justice Earl Warren: You may.
Argument of Eppa Hunton Iv
Mr. Eppa Hunton Iv: Mr. Chief Justice, may it please the Court.
A Richmond newspaper, I'm referring to this case before the Court of Appeals, said that the question presented to the court was, what is a train?
And I think that by -- tersely sums up the real question that is here presented to Your Honors.
And in that connection, may I say very briefly that -- and an answer to the question which was asked, that in the Burlington case the second of the cases which has been decided by this Court, the definition of what governs is precisely stated.
In the Burlington case, this Court said the controlling test of the statute's application lies in the essential nature of the work done.
Now, that is exactly what was said and has been affirmed in the Northern Pacific case, the last of the cases which came before this Court the essential nature of the work done.
Now if Your Honors please, it is striking that the Government has not stressed the nature of the work done.
If I may state briefly the facts, the Seaboard Air Line Railroad extends from Richmond, Virginia to Florida.
Just south of Richmond was this spur track leaving the main line at a point known as Bellwood, going to the industrial community of Hopewell which is at the confluence of the James and Appomattox Rivers.
Now when a train leaves, and I may say that there is no passenger service on that line from Bellwood to Hopewell.
When a train leaves the main line of the Seaboard and arrives in Hopewell, it goes to a classification yard which Your Honor will find in the upper right hand corner of the track which is attached to our brief in this matter.
That is a point where this freight train coming into Hopewell arrives and at that point, the train stops.
Every train stops and is broken up and the cars are distributed to the various tracks composing the yard for delivery to the multitude of industries which are along the track herein question.
After those cars are divided up, then -- and they may be emptied or they may be lowered, it's depending on the requirements of the particular shipper involved.
Then with diesel locomotive power, they move out and may or may not drop off cars at least several, and there are nine in a distance of approximately two miles at the several spur tracks breaking out of the track to -- which is the -- where the operations here involved took place.
So, that there are nine different industrial tracks along that line.
Now, in this particular case or in the case of the four movements here involved --
Justice William J. Brennan: Excuse me, Mr. Hunton.
Where -- where did you say this classification yard was?
Mr. Eppa Hunton Iv: The classification yard is in the upper right hand corner of the track there, if Your Honor please.
Justice Felix Frankfurter: And that's found in your brief?
Justice William J. Brennan: Was this Hopewell yard?
Mr. Eppa Hunton Iv: Yes, sir.
Justice William J. Brennan: Well, thank you.
And then, they come and sit down and follow this red line, is that it?
Mr. Eppa Hunton Iv: They had to follow the red line.
That's right, sir.
Justice William J. Brennan: And end up over at Continental Can, is that it?
Mr. Eppa Hunton Iv: And end up at the Continental Can or the Atmospheric Nitrogen, which is also a division of Allied Chemical.
Justice William J. Brennan: Thank you.
Mr. Eppa Hunton Iv: Both at the -- as Your Honor will see at the extreme end of the red line.
Justice William J. Brennan: Now, is this -- is this two miles as the (Inaudible) there are -- by tracks.
Mr. Eppa Hunton Iv: No, sir.
That's by tracks.
Justice William J. Brennan: By tracks.
Mr. Eppa Hunton Iv: That's by tracks.
Chief Justice Earl Warren: Is that the -- is that the limit of the yard is two miles?
Mr. Eppa Hunton Iv: No, sir.
The yard limit is at the left-hand end at the Continental Can and the American Atmospheric Nitrogen.
That's the end of everything because the river is just the yard.
Chief Justice Earl Warren: Yes, but how far is --
Mr. Eppa Hunton Iv: At the other end, the yard limit extends on toward Bellwood some little distance not on this track though.
Chief Justice Earl Warren: What is the -- what is the length of your yard?
Mr. Eppa Hunton Iv: Both this entire area is in the yard limit and --
Chief Justice Earl Warren: I know, but -- but what is it?
Mr. Eppa Hunton Iv: Sir?
Chief Justice Earl Warren: What is -- what is --
Mr. Eppa Hunton Iv: Two miles.
Approximately two miles is what is involved.
Chief Justice Earl Warren: Oh I thought you said that it was longer than that.
Mr. Eppa Hunton Iv: Well, the yard -- the classification yard, if Your Honor please --
Chief Justice Earl Warren: Is up in the right-hand corner.
Mr. Eppa Hunton Iv: Is up at the right-hand corner.
Chief Justice Earl Warren: Tracks three and five, I take it.
Mr. Eppa Hunton Iv: That's right, sir.
Chief Justice Earl Warren: Yes.
Mr. Eppa Hunton Iv: And then, the line which goes on back to the main line is right at the right-hand edge.
Chief Justice Earl Warren: Yes.
Mr. Eppa Hunton Iv: And --
Chief Justice Earl Warren: And that is how -- how long?
Mr. Eppa Hunton Iv: That -- but from there to Bellwood is about 10-12 miles but the actual yard limit is only about a mile beyond the point on the map.
Chief Justice Earl Warren: It would be about three miles long.
Mr. Eppa Hunton Iv: That's right, sir.
Chief Justice Earl Warren: Well, that's how it is.
Mr. Eppa Hunton Iv: So these cars are brought in on the track here on the right-hand side into this yard where the -- I mean the train is brought in there and it's broken up and the cars are sorted and divided up for the various consignees.
In this particular case, there were -- there are four movements involved.
In the case of one of the movements, the first one, there were movements from the Allied Chemical back to the yard.
That is of loaded cars going out, of 26 cars.
The speed of the train there is 10 miles per hour.
In the second movement, there was a -- a movement from the yard to the American Can Company in the opposite direction.
And in that particular instance, there were 13 cars ahead of its engine and 15 cars behind the engine.
In the third instance, there were 29 cars that they started out with.
They picked up 20 cars en route at the Norfolk and Western interchange which is about halfway between the so-called classification yard and the end of the Allied Chemical Plant.
Of those 20 cars that they'd picked up there, there were 6 loads and 14 empties and the speed was about six miles per hour.
And the fourth movement was from the yard and to two destinations, the Allied Chemical and the Can Company.
Eight cars moved ahead of the engine and 13 behind at a speed up from five to seven miles per hour.
Now there are the facts in this highly industrialized area within the yard limits of the City of Hopewell, within the railroad's yard limits where these movements which were made under control, not of any schedule or anything of that kind, but on the -- under the control of the agent at Hopewell, at yard speed which is defined by the company's rules as being the capacity or ability to stop within one-half of the visible distance.
So the speed here was always -- in no one of these four instances was in excess of 10 miles per hour, I believe and generally long.
The Government if Your Honors please, has stated its position in its brief at page 14 in the following language.
“This Court laid down a clear-cut and precise construction of Congress' use of the term “train” as any movement of an assembled unit of engine and cars for an appreciable distance without coupling or uncoupling.”
That's the Government's position.
But that isn't what this Court said.
This Court said that the controlling test and that's what it said in the Burlington case and again in the subsequent cases.
The controlling test of the statute's application lies in the essential nature of the word “done.”
Now what is that essential nature?
It is furnishing shippers with the cars to meet their needs on a track within the yard limits with nine spurs broken -- breaking out from it, an engine sometimes in the middle.
Certainly that doesn't meet the common concept of a train operating at speeds from 6-10 miles an hour.
Certain that isn't what is considered the -- the train movement purely for the purpose of picking up or setting off in these -- for these various industries their loads or their empty cars.
Now we recognize if Your Honor please, we recognize that transfer movements out or transfer trains, the statute is applicable to those.
Those are cases where such as the first case that came before this Court, the Erie case.
In that particular instance the cars, trains, transfer trains were being moved between the Jersey City yards and the Weehawken yards, and the Bergen yards located approximately two miles that in each instance apart.
And as the court said, some looked to the points of the why.
But they were going from one yard to another.
Here the train has reached its destination of the classification yard in the City of Hopewell.
And they are shifting these cars to the individual industries to pick up or unload, as the case may be.
And vice-versa, they collect those cars later and turn them to the classification yards where they are made up into trains and are carried to the main line at Bellwood.
So we say that the Erie case is not in any way applicable here.
Nor is it Burlington case itself because in that case they were dealing again with transfer of trains.
There the Kansas City yards were on both sides of the Missouri River and there was a single-track bridge with the main line, passenger, and freight used by three different railroads.
And that -- it was over that they moved.
And so again in the Jeffersonville bridge case, the third case before this Honorable Court, it went in where they picked the cars up whether at C&O and big four railroads and their yard, and they took it the entire length of this little bridge line, the Jeffersonville Railroad, and delivered the cars to the Illinois Central at the other.
Again that isn't the type of movement we have here.
And in the Burlington case which was the last case before this Court, the contention there argued was that the movement had to be over a main line in order to be a train movement.
So now, if Your Honors please, we recognize that that isn't necessarily so and that that case settled that proposition that the movement does not have to be over main line, but it does have to be wherever it may be, a train movement because if it isn't a train movement, the statute isn't applicable.
Justice Hugo L. Black: May I ask you --
Mr. Eppa Hunton Iv: Certainly, sir.
Justice Hugo L. Black: All the cases here, bringing the case of the United States against Railroad has this question come up in any of the FELA cases --
Mr. Eppa Hunton Iv: I do not --
Justice Hugo L. Black: -- calling for construction?
Mr. Eppa Hunton Iv: I do not recall, sir, that this specific question of the requirement with regard to air brakes or -- and their being used has come up in any FELA case.
Of course, other --
Justice Hugo L. Black: And quite a number of it involves switching --
Mr. Eppa Hunton Iv: That's -- yes.
There's been quite a number of them involving, of course, as Your Honor knows whether or not the automatic couples work.
Justice Hugo L. Black: Yes.
Mr. Eppa Hunton Iv: And whether the (Inaudible) were secure.
But as far as I know, the mere failure to use air brakes to couple air brakes in cases of this character, as far as I know, I do not believe it has appeared when any FELA --
Justice Hugo L. Black: What's been held with reference to coupling?
Mr. Eppa Hunton Iv: Sir?
Justice Hugo L. Black: What's been held with reference to movements of this kind in connection with coupling?
Mr. Eppa Hunton Iv: Well if Your Honor please, the FELA requires that the couples connect automatically upon impact.
If they fail to do so, there's a violation of the Act per se.
Justice Hugo L. Black: Without regard to whether it's a train --
Mr. Eppa Hunton Iv: Without regard to whether it's a train or not.
And so also here, that it is true in regard to the case of B. & O. against Jackson referred to by my distinguished opponent.
Where the question was whether the gasoline motor car was a locomotive.
That was the recent case that was before Your Honors where they had the gasoline locomotive car or gasoline work car and the handcar that was hooked to it by Lincoln (Inaudible).
That if --
Justice Hugo L. Black: Mr. Justice Brennan asked Mr. Davis if this ruling would affect -- be effective in a personal injury case the same way and his answer was yes.
Is that correct?
Mr. Eppa Hunton Iv: I rather think, if Your Honor please.
That if it could be shown that there was a causal connection between the failure to use the air brakes, that it would be applicable.
But as appears here and from the finding of facts by the lower court, no greater safety would result from the use of air brakes in this particular instance.
Justice Charles E. Whittaker: (Inaudible)
Mr. Eppa Hunton Iv: Sir?
Justice Charles E. Whittaker: I say is that really found open here, what was the rule against this (Inaudible) are we not -- the important to act as it should be?
Mr. Eppa Hunton Iv: Undoubtedly.
Justice Charles E. Whittaker: What?
Mr. Eppa Hunton Iv: Undoubtedly.
You are undoubtedly.
But I do think, so that it does have this bearing and that is on the purpose of the Act which is the safety of employees.
Now, if the Act is so written that it requires things to be done by the railroad that create greater havoc for the employees, then I can put a consideration of whether it does or doesn't if properly before the Court.
If there's any doubt about the applicability of the Act, you are absolutely I mean the entire Court, sir.
If the Act is so written that it is applicable, then it makes no difference about the safety of employees.
But I say that it -- in my view of the matter, that the Act is not so written, that it is an open and shut case by any manner or means and that the safety of the employee which is the primary purpose of the Act, is to be considered.
Justice John M. Harlan: As I understand that the Government, there was a period when you were guarding any type of operation, subject to (Inaudible)
Mr. Eppa Hunton Iv: If Your Honor please, this --
Justice John M. Harlan: I was not asking --
Mr. Eppa Hunton Iv: Oh, excuse me.
Justice John M. Harlan: What brought about the change, the present wouldn't have (Inaudible)
Mr. Eppa Hunton Iv: I anticipated, Your Honor's question.
This spur track into Hopewell from the main line of the Seaboard was constructed about 1931 or 1932.
During that time or from that time until 1951, the air brakes were not used for a period of 19 or 20 years without any comment, without any criticism or complaint on the part of anybody.
In 1951, according to the testimony of Mr. Kean, the assistant division superintendent, they were advised by a letter from the ICC that they felt that air brakes should be used in that operation.
In 1956 Mr. Merrick, a consultant employed by the Seaboard for this purpose who had been an inspector on exactly this type of thing with the Interstate Commerce Commission for 32 years, examined into the operation at Hopewell and reached the conclusion that the air brakes were not required under the terms of the statute.
And on the advice and under the guidance of Mr. Merrick with 32 years of experience as an Interstate Commerce Commission inspector on this type of work, the use of the airb rakes was discontinued.
I may say that during the entire time whether they were used or not used, there has been no injury to an employee that may be in any way traceable nor to the public, that may be in any way traceable to the use or non-use of air brakes on this particular train or in these movements.
Chief Justice Earl Warren: The Commission did not agree though, with its -- with its former employee, did it?
Mr. Eppa Hunton Iv: If Your Honor please, two inspectors came to Hopewell in response to a complaint.
The evidence shows that there are an average of 10 movements on these tracks.
They are of the same general nature each day.
And they picked out of the 20 movements, they picked out these four to be the subject matter of the proceeding which was here instituted.
The two inspectors who testified on behalf of the Interstate Commerce Commission, one of them had three-and-a half years of experience and the other one I think six years so, very much less than the retired inspector of 32 years experience.
And, there are evidence--
Chief Justice Earl Warren: But the Commission with its expertise came to the conclusion, though, that the Act did apply, didn't it?
Mr. Eppa Hunton Iv: That, sir I can say -- only say that one of their experts and one that they had used in similar cases for a period of 32 years came to a different conclusion and it may be due to who was paying the employee's salary.
No worth the --
Chief Justice Earl Warren: Yes, but what did the -- what did the Commission ultimately determine in this matter?
Mr. Eppa Hunton Iv: But there's been no hearing at all before the Commission.
Chief Justice Earl Warren: But the Commission is prosecuting this matter here.
Mr. Eppa Hunton Iv: The Commission is prosecuting this -- this case.
Chief Justice Earl Warren: So, the net result is that they don't agree with their former employee whom you rely on.
Mr. Eppa Hunton Iv: That in other words, there's a conflict of testimony between the -- the -- the two and if Your Honor please, may I point out --
Justice Potter Stewart: It does arose as a - -as a criminal prosecution, did it not?
Mr. Eppa Hunton Iv: No, sir.
This is a civil proceeding.
Justice Potter Stewart: For a penalty?
Mr. Eppa Hunton Iv: For a penalty.
Justice Potter Stewart: For a penalty.
Mr. Eppa Hunton Iv: Yes, for a penalty.
Justice Potter Stewart: And the trier of the facts was the District Court.
Mr. Eppa Hunton Iv: The trier of facts was the District Court and found--
Justice Potter Stewart: And it found it in your favor.
Mr. Eppa Hunton Iv: It found in our favor.
And may I point out to the Court that with the exception of the 800 feet up to the classification yard, the remaining balance of this track is parallel by the Norfolk and Western's tracks, on which, the evidence shows exactly the same type of work is done.
And these two inspectors from the Interstate Commerce Commission came down, rode the trains, observed the Norfolk and Western didn't bother to look between the cars to see whether their trains were having or using air brakes and the evidence is uncontradicted that they did not.
And there they are about eight-feet apart where the Norfolk and Western not using air brakes and this complaint -- and doing exactly the same work as the Seaboard and this complaint was filed against the Seaboard.
Of course I realize that a violation of the Act on the party one or the failure to prosecute one is no excuse for a violation on the part of the other.
But I do say that those two inspectors of the Interstate Commerce Commission did not proceed against the Norfolk and Western which they observed and didn't take trouble to see whether the air brakes were connected or not.
So that is the situation.
Now in conclusion, if Your Honors please, what has happened here is that they are attempting to take out of its context what was going on.
It was a switching movement and they have lifted out, just as you would a quotation from a book, a small segment of what was going on.
The prosecution is with respect to the movement between the classification yard and the industry.
But actually the whole thing is a part of one.
It is a shifting operation.
It's a switching operation after the train had arrived at Hopewell, and it is no longer a train it has been broken up and switched, and is being switched and delivered to the industries in question.
So there, if Your Honor please, in the lower court, Chief Judge Sobeloff dissented as to three movements but concurred in the opinion of the other two judges as to one other.
And that was a movement in which the car -- train stopped and picked up 20 cars at the Norfolk and Western interchange.
He gives no reason, however, in his opinion why he distinguished the one from the other but that is the difference in facts.
So if it please the Court, in conclusion may I say that we fully concur in the statement with which the Court of Appeals concluded its opinion.
And there they said where Congress has commanded the use of train brakes, the courts cannot excuse a failure to use them because of the use of other devices and measures, however effective in assuring safety there may be.
But if the use of train brakes on these movements is costly, delay of shipments and creates new risks of injury without substantially contributing to the alleviation of existing way -- risks, it is a reminder that courts should not extend the requirement beyond the intention of Congress or needlessly chip away major portions of the long established exemption of switching operations.
Justice Charles E. Whittaker: Mr. Hunton, may I ask you a question?
Mr. Eppa Hunton Iv: Certainly, sir.
Justice Charles E. Whittaker: You have not used a contract (Inaudible) and, in your answer to Mr. Justice Stewart, observed the findings of the District Court.
But is not our question one of law, namely, whether did this operation constitute a train?
I'm trying to get information upon whether we have a disputed question of fact here resolved by a trial court or whether we have a question of law.
Mr. Eppa Hunton Iv: In a large measure the facts are undisputed, sir.
But I do think it is a question of mixed law and fact of what is a train.
Here is a questions that rather difficult to determine between the two.
I do think it is a -- there is a conflict of facts.
The findings of facts of the committee were vigorously opposed by the Government as not being in accord with the testimony.
So -- so there is definitely a conflict in evidence with -- in that respect.
Justice Felix Frankfurter: Do the takers which, dealing with a duplicate in subject public matter was aiming to pay the correction whether the switching operation is a part of the main line track or not (Inaudible) New York in which the question of whether those are internal package belonging to the industry and therefore, are not subject to the regulations of the ICC.
You may train your light to this question.
Mr. Eppa Hunton Iv: I don't think they'd do, if Your Honor please because all of this is entirely on the Seaboard's own tracks.
Justice Felix Frankfurter: In fact I knew that.
Mr. Eppa Hunton Iv: Yes.
Justice Felix Frankfurter: This Seaboard operations.
Mr. Eppa Hunton Iv: Yes.
Justice Felix Frankfurter: But thereto, the question is whether the matter of transportation practices they were switching operation of a haul, line for (Voice Overlap) --
Mr. Eppa Hunton Iv: Yes.
I -- I know the key is how to make sure the thought that --
Justice Felix Frankfurter: (Voice Overlap) --
Mr. Eppa Hunton Iv: But I don't believe that -- I don't believe they are helpful in this situation, sir.
Justice Felix Frankfurter: (Inaudible)
Justice John M. Harlan: What are the practical consequences at stake here?
Obviously, it's going to expose in one end if proved at least to more hazards in the point of view of the railway or what have you?
Mr. Eppa Hunton Iv: If Your Honor please, the practical questions here presented that the -- if this operation is carried out with air brakes in use, there will be a great many more movements, a great deal more of time consumed.
There will be two additional engines in operation.
It will amount to $30,000 for wages alone in this particular instance, and will not result in any greater safety to the employees as was found by the District Court.
Justice Felix Frankfurter: That was a contested issue last --
Mr. Eppa Hunton Iv: Yes.
Justice Felix Frankfurter: In the last dispute.
Mr. Eppa Hunton Iv: Yes, sir.
Justice Felix Frankfurter: What I think about the -- the evidence in the finding of the District Court?
Mr. Eppa Hunton Iv: The --
Justice Felix Frankfurter: (Voice Overlap) --
Mr. Eppa Hunton Iv: There is no dispute at present time as to the facts.
The facts are at least the -- the basic facts are entirely agreed and I -- I -- I'm sure there's no dispute at all.
Insofar as the Court made findings as to dangers to the employees, it has been our position throughout that Congress, as --as I tried to explain earlier has adopted a rule of thumb --
Justice Felix Frankfurter: If they have missed the statute, it doesn't matter.
Mr. Eppa Hunton Iv: That's right and it doesn't -- and that is not an issue in the case.
Justice Felix Frankfurter: Not that was made in the -- in answer to the question -- Mr. Justice Whittaker's question that clearly, the mixed question of -- of the fact, there is an infusion of ascertaining the fact which is relevant with the determination of this moving trains.
Mr. Eppa Hunton Iv: That is right.
Justice Felix Frankfurter: And if we reject that?
Mr. Eppa Hunton Iv: Well I don't -- there are no facts in dispute.
We are all in agreement and -- about everything that actually took place.
The only question is whether it's a matter of law, they were required to accept their brakes under these circumstances.
I may say that as far as the application of the law is concerned, the law provides that when a railroad is engaged in interstate commerce in a situation like this, it makes no difference about the particular movement whether that -- do you consider to -- though I have no doubt these were in interstate commerce.
But there's no question of -- and there's no dispute between us as to the application of the Act to this movement, if it be a train, if these be trains.