The opinion of the court was delivered by: Juergens, Chief Judge.
These three cases have been consolidated for hearing and are
brought under the provisions of Title 45 U.S.C.A. Sections 1-16,
inclusive, commonly referred to as the Safety Appliance Act.
Case No. 66-25 contains twenty causes of action; twelve charge
violation of 49 C.F.R. § 132.13(e)(1) and 49 C.F.R. § 132.12 and are in
Action No. 66-67 consists of five causes of action — one being
admitted by the defendant, and the remaining four are in dispute
and charge violations of 49 C.F.R. § 132.12.
Action 66-79 consists of one cause of action, a violation of
49 C.F.R. § 132.12.
49 C.F.R. § 132.12 provides in pertinent parts as follows:
"All trains must be given inspection and test as
specified by paragraphs (a) to (h) of this section at
points: (1) Where a train is originally made up
(Initial Terminal); (2) Where train consist is
changed other than by adding or removing a solid
block of cars and train brake system remains charged;
(3) Where train is received in interchange."
49 C.F.R. § 132.13 provides that transfer trains in yard train
movements not exceeding 20 miles must have the air brake hose
coupled between all cars and after the brake system is charged to
not less than 60 pounds a 15 pound service brake pipe reduction
must be made to determine that the brakes are applied on each
The gravamen involves movements of New York Central trains to
the lower yard in East St. Louis, Illinois, by New York Central
crews which were then replaced by Terminal Railroad Association
crews. In the one instance, the train continued to the Missouri
Pacific or Frisco lines in St. Louis, Missouri, and in the other
case continued to the Missouri Pacific yards in Dupo, Illinois.
Another movement involved a train consist which was received by
Terminal Railroad at Missouri Pacific's yard in Dupo, Illinois.
There the locomotive and caboose of Missouri Pacific were cut off
and replaced by TRRA locomotive and caboose. The TRRA crew made
the brake test required by 49 C.F.R. § 132.13(c)(1). The train was
then moved over TRRA tracks and delivered to the Pennsylvania and
B. & O. railroads.
Generally stated, the facts surrounding the New York Central
movements are as follows: The New York Central trains originate
in Indianapolis, Indiana. The train is there given the full
initial terminal brake test prescribed by 49 C.F.R. § 132.12. It is
then moved in a solid block destined for the Missouri Pacific
yards or Frisco yards in St. Louis in one instance and the
Missouri Pacific yards in Dupo, Illinois in the other instance.
After the train is made up and the brake test made, it then moves
from Indianapolis, Indiana to Mattoon, Illinois, where a crew
change occurs — the Indianapolis crew being replaced by a crew
from Mattoon, both employees of the New York Central. No brake
test is made, nor is any required. The train bound for St. Louis
then proceeds to East St. Louis, and upon reaching the New York
Central yard limits, the road crew is relieved and replaced by a
yard crew, all New York Central employees. The train then
proceeds to the TRRA rails in East St. Louis, where the New York
Central crew is relieved by a TRRA crew and the train, remaining
intact, proceeds to its destination in St. Louis. The New York
Central road crew on the train movement from Indianapolis to the
Missouri Pacific yards in Dupo is replaced at the TRRA rails by a
TRRA crew which moves the train to Dupo.
In each instance the New York Central trains are made up in
Indianapolis and are destined for either St. Louis or Dupo,
Illinois. When a crew change is completed by New York Central
crews, no test is made nor is one required. The government
contends that when the crew change is from New York Central crew
to TRRA crew then the power brake test
prescribed by 49 C.F.R. § 132.12 is required; its position being that
when the train crews are changed at the boundary lines between
the New York Central and the TRRA, the train in question is
received in interchange as that term is used in 49 C.F.R. § 132.12.
The regulations do not define "interchange"; however, the
government points to a definition of interchange as given in a
declaratory order entered by the Interstate Commerce Commission
on the 16th day of March, 1965. By this order the Commission held
that when two railroads join in through-train operation without
change of power, caboose, or other train consists, at their
boundary, changing only crew at boundary, the boundary is the
place where the train is received in interchange as that term is
used in 49 C.F.R. § 132.12, because at that point the use or haul on
the line of one carrier ceases and the other commences.
Testimony established that in 1964 the New York Central began
assembling entire trains in Indianapolis destined for St. Louis
and Dupo to be delivered from Indianapolis to the destination by
the New York Central crews, but that union rules required TRRA
crews to move all movements on TRRA tracks and that it was thus
necessary to change the crews from New York Central to TRRA
personnel to meet the union requirements.
The question the court must determine with regard to the New
York Central movements is whether or not an interchange did in
fact occur when the New York Central crew was replaced by the
TRRA crew — the entire consist of the train otherwise remaining
In Southern Railway Co. v. Louisville and Nashville R. Co.,
D.C., 185 F. Supp. 645, the term "interchange" was ...