271 N.E.2d 806
No. 70-708Supreme Court of Ohio.
Decided July 14, 1971.
Railroads — Train equipment — R.C. 4963.21 — Construction of caboose cars — Cars not having required features — Order of Public Utilities Commission prohibiting use, unlawful, when — In yard operation — Crew safety and comfort not requiring caboose or like car — Evidence.
In the absence of evidence that, in a railway company’s yard operation where travel does not exceed five miles in any direction, the safety and comfort of train crew personnel and the safety of the operation of a train require a caboose, or a car used for a like purpose, as defined in R.C. 4963.21, an order of the Public Utilities Commission that a railway company in such operation cease and desist from using T-cabooses or transfer cars not having the features required by R.C. 4963.21, is unreasonable and unlawful.
Page 228
APPEAL from the Public Utilities Commission.
In August 1969, the Cooperative Legislative Committee of the Railroad Brotherhoods, state of Ohio, by letter complained to appellee, the Public Utilities Commission, that the Erie Lackawanna Railway Company, in conducting its railroad operations in Youngstown, has created “unsafe and unhealthy working conditions” in seven cabooses which are not designed to comply with R.C. 4963.21.[1]
Appellant’s attorney, on September 3, 1969, wrote to the commission advising that five of the seven T-cabooses assigned on the Mahoning Division were to be transferred out of state and replaced by regular cabooses. Thereafter, on December 12, 1969, the Railway Company filed an answer denying that the two T-cabooses still in use in Ohio created unsafe and unhealthy working conditions.
Public hearings were held on January 22 and February 17, 1970. The testimony regarding the “T-cabooses,” also called “transfer cars,” “transfer cabooses,” “T-cars,” or “rider cars,” revealed that in railroad yard and terminal operations it is necessary to transport members
Page 229
of train crews short distances, and these cars are used for that purpose. Before these cars were used for that purpose the Railway Company had used regular caboose cars taken out of road service, or no such cars at all, the employees often riding in the cabs of the locomotives.
The T-cabooses used in the Youngstown terminal area do not operate in excess of four or five miles in any direction. The maximum speed of the train to which these cars are attached is about 20 miles per hour. An employee of appellant, Robert G. Kaufman, testifying before the commission, described a T-caboose.[2]
In its findings of fact, the commission noted that the cars in question did not comply with R.C. 4963.21 in that “the cars are not 24 feet in length, exclusive of platforms. are not equipped with closets, and are not equipped with a cupola or bay windows.” The absence of such cupola or bay windows prevents the crew from making a complete observation of the train while in transit. The commission also found that the “accumulation of debris in the steel
Page 230
gratings used for the end platform and for the aisle leading to the doors of the transfer car creates an unsafe and hazardous condition for respondent’s employees.” The Railway Company has agreed to correct this condition.
The Public Utilities Commission’s order sets forth this conclusion of law:
“4. The safety and welfare of the respondent’s employees requires an order of the commission directing the respondent railroad to cease and desist from operating the type of transfer cars which are the subject of this complaint and which do not meet the statutory requirements of Section 4963.21 of the Revised Code.”
The commission ordered appellant to “cease and desist from using in its transfer operations at Youngstown, transfer cars, or any other cars in place of caboose cars, which do not meet the statutory requirements of R.C. 4963.21.”
An application for rehearing was denied by the commission. The cause is now before this court upon appeal by the Railway Company.
“No common carrier operating a railroad, in whole or in part, within this state, or manager or superintendent of such common carrier, shall require or permit the use within this state upon such railroad, of any caboose car or other car used for like purpose which is not at least twenty-four feet in length, exclusive of platforms, and equipped with two four-wheeled trucks, with suitable closets, and with either a cupola or with bay windows, and provided with a door in each end and an outside platform across each end of such car. Each platform shall be not less than twenty-four inches in width and shall be equipped with proper guardrails and with grab-irons and steps for the safety of persons getting on and off said car. Said steps shall be equipped with a suitable rod, board, or other guard at each end and at the back, properly designed to prevent slipping from such step. In case of unusual and unforeseen demands of traffic on the railroad, caboose cars not built in accordance with this section may be used temporarily only where the railroad company desiring to use the same applies to and obtains from the public utilities commission authority to use the same temporarily.”
“Q. How large are the seats which are provided in this cab? A. Well, the seats were formerly Suburban car seats, which is the three-two seating arrangement — one side has seats for three people and the other for two people, and these are the two-seat type.
“Q. How many square feet of space is there in the interior of this cab? A. It is a little over ten feet long by a little over nine feet wide — ninety square feet.
“Q. Would you describe the exterior of the car? A. The entrance to the compartment is covered with a steel non-skid grate. The deck is 2-3/4 inch oak with space between each plank. At each end of the deck there is a hand brake, a backup wheel and brake valve. There is a tool box on the outside platform. On the outside of each door is a container for signal equipment. The windows are seven inch safety plate covered with stainless steel bug screen.”
Mr. Wallace R. Steffen, for appellant.
Mr. William J. Brown, attorney general, and Mrs. Sally W. Bloomfield, for appellee.
DUNCAN, J.
The two cars in question in this case are not cabooses in that they do not conform to the specifications of R.C. 4963.21
Furthermore, since they are not cabooses, it is equally clear that they cannot be used for a “like purpose,” i.e., used for the purpose that cabooses are used.
It is apparent that the General Assembly, in enacting R.C. 4963.21, was concerned with the safety and health of railroad employees, and the safe operation of trains. T-cabooses obviously do not have the physical attributes that are required for cabooses, and, obviously, could not be used for over-the-road general railroad operations.
Our question herein narrows to whether it is mandatory
Page 231
for the safety and comfort of railroad employees and for the safe operation of trains in yard operations, that a caboose, or a car used for a like purpose, meeting the specifications of R.C. 4963.21, be used.
In its order, the commission’s third conclusion of law reads:
“The operation by respondent of transfer cars which do not meet the statutory requirements of Section 4963.21 of the Revised Code presents an unsafe and hazardous working condition for respondent’s employees.”
The commission’s conclusion, to be reasonable and lawful, must be supported by evidence. We find no such evidence that any railroad cars used for the purpose of transporting railroad train crews on short hauls not to exceed five miles in yard operations must have all the features required by R.C. 4963.21, or that they are unsafe and hazardous. On the other hand, there is evidence that there are no laws, rules, regulations, orders or labor agreements which require that a “caboose car or other car used for like purposes” be furnished for yard and transfer service in trains operating less than five miles in any direction.[3]
Page 232
Appellee, in its brief, argues that “transfer service does not require the use of a caboose,” but that “where a railroad elects to supply a car for the convenience of the railroad employees it must conform to R.C. 4963.21.”
The commission also argues: “The commission properly made no findings as to the safety of T-cabooses. Appellee emphasizes that this argument is immaterial because the legislature has made a decision as to what the minimum requirements for safety are.”
If the commission admits that no special cars for the transportation of train crews in yard operations are necessary at all, we are unable to comprehend now yard operations are somehow made unsafe and hazardous by the use of T-cabooses. There is no evidence that train crew members in yard operations who can be transported in a locomotive or other railroad car are subjected to a greater hazard when riding in a T-caboose.
Although it is clear that Railway Company employees ride short distances in T-cabooses in the course of their
Page 233
work, and that regular cabooses at one time had been used for that purpose, we find no evidence of probative value that this transportation must be in a caboose or a car used for a “like purpose.” If train crews working in yard operations can be transported in a locomotive, adherence to the theory appellee’s brief appears to advocate would require such locomotive to have all the features of a caboose required by R.C. 4963.21.
In the absence of evidence that, in a railway company’s yard operation where travel does not exceed five miles in any direction, the safety and comfort of train crew personnel and the safety of the operation of a train require a caboose or a car used for a like purpose as defined in R.C. 4963.21, an order of the Public Utilities Commission that a railway company in such operation cease and desist from using T-cabooses or transfer cars not having the features required by R.C. 4963.21 is unreasonable and unlawful.
As a result of our decision, we do not confront the question whether or not the commission can enforce compliance with R.C. 4963.21.
Order reversed.
SCHNEIDER, HERBERT, CORRIGAN, STERN and LEACH, JJ., concur.
O’NEILL, C.J., dissents.
“Q. The train or road service travels greater distances at faster speeds? A. That is correct.
“Q. You consider under those circumstances it is more likely something can happen to a train, which requires inspection? A. Yes, sir.
“Q. Conversely, if a train travels a shorter distance at a slower speed, is it more likely or less likely for the train to have difficulties? A. There is less likelihood of a train having difficulties while traveling at a slow rate of speed.
“Q. Is this a reason for not having a bay window or cupola on a transfer car that travels for short distances at a slow speed in yard service? A. That would be one of the reasons.
“Q. Do you know of any state law or regulation or railroad rule or labor agreement which requires or provides that Erie Lackawanna must furnish a caboose on a rider car such as cars T-18 and T-19 for yard service and transfer service? A. No, sir, I do not.
“Q. In other words, a railroad can make a movement in transfer service or yard service without a rider car? A. Yes, sir, they can and they do do it.
“Q. Why is a rider car furnished when there is no law, regulation, rule or labor agreement which requires that a rider or transfer car be furnished? A. For the convenience of the yard men.
“Q. Is there any operating efficiency obtained by having the rider car on the train for the trainmen to expedite switching? A. No, sir.
“Q. Would it be possible for all the trainmen to ride in the cab of the locomotive? A. Yes, sir, it is, and they have ridden in the cab of the locomotive.
“Q. Without the rider car being on the train, is that correct? A. That is correct.
“Q. To make this point clear, let me ask you this — would it be possible for Erie Lackawanna to just remove the rider cars T-18 and T-19 and let their train crews ride in the cab of the locomotive with respect to yard movements and transfer movements? A. Yes, sir, it would be. It was more or less the request of the Brotherhoods that a car of this type was built by the railroad.”
Page 234