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July 15, 1969


The opinion of the court was delivered by: Robson, District Judge.


The plaintiffs have sued the defendant for damages arising out of a train disaster. The defendant counterclaimed for a declaratory judgment that an agreement between the parties placed the loss on the plaintiff railroad. After briefs were submitted on certain legal issues, a hearing was held. Post-hearing briefs were filed, and the court took the case under advisement. For the reasons set forth below, this court is of the opinion that judgment should be rendered for the defendant.

On September 25, 1964, the plaintiff*fn1 Chicago, Rock Island and Pacific Railroad Company ("Rock Island") was unable to use its own tracks to Chicago, because of a defective bridge at Joliet, Illinois. Under a long-standing prior agreement, standardized for the railroad industry, the Rock Island detoured its trains over the defendant Chicago, Burlington & Quincy Railroad Company's ("Burlington") Streator Branch tracks, which connected with the Burlington's line at Ottawa, Illinois.

The Burlington, at this time, was in the process of completing a change-over, in its system of switching, from manual and mechanical power to electrical power. At the Montgomery Interlocking Station, electrical motors had been installed to replace the mechanical moving of the switches, but the complete change-over to remote control had not been finished, since the levers still had to be operated manually. The Streator Branch of the Burlington connected with Burlington's main tracks by means of Switches 12 and 14, located about 0.2 miles from the Montgomery Interlocking Station. For a train traveling east to Chicago to pass from the Streator Branch onto Track No. 2, Switch No. 14 had to be in "Reverse" position. Inside the Montgomery Station, this was indicated on a board by a red light under the letter "R" for "Reverse." For a train traveling west from Chicago to travel straight through on Track No. 2 without passing onto the Streator Branch tracks, Switch No. 14 had to be in "Normal" position, indicated by a white light under the letter "N" inside the Montgomery Station. There was a locking lever for each switch, and, before a train could be given a signal to proceed in a certain direction, the locking lever had to be pulled. Although it is stipulated that the Burlington did not know at the time, it was possible to give a "proceed" signal without Switch No. 14 being in the desired position. The electrical motors took from 2.2 to 2.6 seconds to begin the actual moving of the switch. If the locking lever was pulled during this period, the switch would remain in its original position, and allow the erroneous "proceed" signal to be given. If the locking lever was engaged after this short period, the "proceed" signal could not be given if the switch was still in the original undesired position.

At about 8:45 p.m. on September 27, 1964, Rock Island Train No. 4 eastbound to Chicago from New Mexico and Iowa, left Ottawa, Illinois, and entered the Burlington's Streator Branch tracks. At this time, Switch No. 14 was in "Reverse" position to allow Rock Island Train No. 4 to travel to Chicago from the Streator Branch to the main Track No. 2. Both signal bridges, east and west, indicated that any trains on Tracks Nos. 1, 2 or the Streator Branch tracks should stop. At about 10:15, the situation was still the same: Switch No. 14 in "Reverse" with the red light on in the Montgomery Station, and both signal bridges indicating "Stop."

When Rock Island Train No. 4 did not appear at the scheduled time, the operator in the Montgomery station was instructed by the Burlington dispatcher's office in Aurora to place Switch No. 14 in the "Normal" position to allow Burlington Train No. 3 to proceed westward straight through on Track No. 2. This was at about 10:40 p.m. This operator pulled the levers for Switch No. 14, locked it, and was able to give a "proceed" signal going west on Track No. 2. He then left to observe the passing Burlington train for hot boxes, sticking brakes, and anything which might have been dragging. However, Switch No. 14 had not moved from its original "Reverse" position, and the red light was still on in the Montgomery station. Apparently, the operator in his rush to get outside to watch the passing train (part of his duties), did not notice the red light. It seems that he had pulled the locking lever within the 2.2 or 2.6 second period mentioned above, and was therefore able to pull the lever which gave the "proceed" signal for westward movements on Track No. 2.

  "The Home Company [Burlington] shall not be held
  liable for or on account of any loss, damage, or
  delay, to the trains, engines, cars or other property
  of any kind of either company, nor to freight,
  baggage or other property of any kind carried in or
  upon such trains, engines or cars, nor for or on
  account of any injury to or death of passengers or
  employes of either company, or for or on account of
  any injury to the person or property of any other
  individual or individuals, company or companies,
  corporation or corporations whatsoever, which may be
  incurred or sustained by reason of such trains being
  detoured, or by reason of such trains being delayed
  in such detouring, in whatever manner the same may be
  caused or occasioned, whether by or through the
  negligence of the Home Company [Burlington], its
  agents or servants, or by reason of defects in
  tracks, structures or facilities furnished by the
  Home Company, or otherwise, it being understood and
  agreed that all risk of such delays, loss, damage,
  injury and death shall be and is hereby assumed by
  the Foreign Company [Rock Island], and the Foreign
  Company shall and will hold harmless the Home Company
  from and against all liabilities or claims for all
  such delay, loss, damage, injury and death, and shall
  and will execute and deliver * * * to the Home
  Company, upon request, a full and complete release,
  satisfaction and discharge of all claims therefor,
  and will pay * * * all costs and expenses incurred by
  either Company in the clearing of wrecks and repairs
  to equipment, track and property in which by reason
  of detour movements covered by this agreement the
  engines, trains or cars of the Foreign Company [Rock
  Island] are concerned, expenses and attorney's fees
  incurred in defending any action which may be brought
  against the Home Company on account of any such claim
  or liability and any judgment which may be rendered
  against the Home Company on account thereof. The
  Foreign Company shall pay all fines, penalties, costs
  and expenses imposed upon or incurred by the Home
  Company by reason of any violation by the Foreign
  Company of the Safety Appliance or other State or
  Federal Laws, and hold the Home Company harmless
  therefrom." (Emphasis added)

For the purposes of argument, the Burlington admits that it committed a violation (though unwittingly) of the Safety Appliance Acts.*fn2 However, the Burlington claims that this Detour Agreement covers the conduct involved in this disaster, and that, therefore, the Rock Island must pay all the losses, which are stipulated to be $563,699.17 for the Rock Island and the Bank, and $786,718.62 for the Burlington, plus attorney's fees and costs. The parties also agreed that the party held responsible here will defend and be responsible for all pending suits. The Rock Island argues that the Detour Agreement does not cover a violation of the Safety Appliance Acts, and that, if it does cover such a violation, it is void as a violation of public policy.

Jurisdiction of the court is founded on 49 U.S.C. § 8, which provides that if a carrier subject to the Interstate Commerce Act does anything in violation of that Act, "such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation * * * together with a reasonable counsel or attorney's fee * * *." The Burlington contends that the history and practice under the Interstate Commerce Act show that this federal cause of action is limited to living persons, whose lives and limbs are put in jeopardy by a violation of the Safety Appliance Acts, and has never been extended to corporations. However, this overlooks the definition in 49 U.S.C. § 1(3)(a) that the "term `person' as used in this chapter includes an individual, firm, copartnership, corporation, company, association, or joint-stock association; and includes a trustee, receiver, assignee, or personal representative thereof." Faced with this explicit inclusion of corporations into Section 8 by virtue of Section 1(3)(a), and the undisputed allegation of an injury because of an alleged violation of the Safety Appliance Acts, this court is of the opinion that jurisdiction is proper.


The Detour Agreement, quoted above, could not contain more words denoting a desire to include virtually every kind of loss that might occur while the Rock Island was operating on the Burlington's tracks. Apparently because most cases relating to the agreement have been submitted to arbitration or settled, Paragraph 7, Exhibit F, Stipulation of Facts, research reveals only one case which has construed the Detour Agreement. Alabama Great Southern Railroad Co. v. Louisville and Nashville Railroad Co., 127 F. Supp. 363 (N.D.Ala. 1955), reversed on other grounds 224 F.2d 1, 50 A.L.R.2d 1302 (5th Cir. 1955). The court, at 368, noted this fact:

    "Strikingly noteworthy of comment is that for
  nearly fifty years the railroads have been content to
  solve the problems arising under similar agreements
  without resorting to the courts for their
  construction or application."

The court held that there was no need to prove that the Foreign Road proximately caused the ...

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