Opinion
No. 25660
Decided March 18, 1936.
Public Utilities Commission — Power to promulgate orders for safety of railroad employees — Placing pusher engine in front of cabooses and cabin cars — Interstate commerce not interfered with, when — Due process not denied railroad, when.
1. The Public Utilities Commission of Ohio has plenary power under and by virtue of Section 614-3, General Code, to promulgate and enforce orders relating to the protection, welfare and safety of railroad employees.
2. When the Public Utilities Commission of Ohio finds, upon the consideration of substantial evidence, that the use of a pusher engine in the rear of a caboose or cabin car in assisting in the movement of assembled freight trains in the state of Ohio is dangerous and constitutes an extreme hazard to the life and limb of the members of the train crew of such freight train, it has ample power and authority to promulgate and enforce an order against such railroad company requiring it, in the movement of such trains in the state of Ohio, to place the engine in front of all occupied cabooses and cabin cars, and such order is not unlawful or unreasonable.
3. Such an order does not constitute an interference with interstate commerce.
4. When the railroad company is accorded a reasonable opportunity to be heard in such matter, there is no denial of due process of law.
ERROR to the Public Utilities Commission.
On February 19, 1935, the Public Utilities Commission of Ohio issued a citation directed to plaintiff in error, The New York Central Railroad Company, in which it was recited:
"That the prevailing practice of said The New York Central Railroad Company of permitting such pusher engines to be attached to the rear of the caboose on freight trains creates an undue and excessive hazard to life and limb, and that a safe and secure method of using pusher engines would be to attach the caboose to the rear end of the pusher engine, when pusher engines are used to assist the movement of freight trains."
This citation was followed by an order commanding the railroad company to appear and show cause why an order should not issue requiring the railroad company, "whenever it shall employ a pusher locomotive at the rear of a freight train being operated in the state of Ohio, to detach the caboose from the freight cars and operate the train with the caboose at the rear of the pusher engine."
The matter came on for hearing, and evidence was introduced by the commission, by the railroad company and by railroad train service brotherhoods. On June 6, 1935, the commission issued its order in the premises, which upon rehearing was modified by an amended order, dated August 7, 1935, viz.:
"That the respondent, The New York Central Railroad Company (Lines West) in the operating of assembled freight trains in the state of Ohio at various points follow the practice of using a pusher engine attached at the rear of such freight trains following the caboose or cabin car, occupied by the members of the train crew whose duties do not at the moment require their presence at other points upon the trains;
"That the use of the pusher engine to assist the movement of a freight train in the state of Ohio where such pusher engine is attached at the rear of an occupied caboose or cabin car is dangerous and constitutes an extreme hazard to the life and limb of the members of the train crew of such freight train."
Upon these findings the commission made the following order:
"Ordered, that the respondent, The New York Central Railroad Company (Lines West), be and hereby is notified, directed and required, effective from and after the date of the service of a copy of this order, in using pusher engines to assist the movement of assembled freight trains within the state of Ohio, to place such engine in front of all occupied cabooses or cabin cars constituting a part of said assembled freight trains."
To this order the railroad company filed its application for rehearing, which was denied by in order dated September 30, 1935, in which the effective date of the order of August 7, 1935, was postponed to October 15, 1935.
Thereupon the railroad company filed its petition in error herein, praying that the finding and order of the commission made on August 7, 1935, be reversed, alleging as its reason therefor that such order is unlawful in the following particulars:
1. That such order is based upon a finding "that the use of a pusher engine to assist the movement of a freight train in the state of Ohio where such pusher engine is attached at the rear of an occupied caboose is dangerous and constitutes an extreme hazard to the life and limb of the members of the train crew of such freight train" and there is no evidence or other basis of fact upon which to predicate such finding;
2. That such findings and order are unreasonable and unlawful, in that the commission failed to consider the great expense to the railroad company which will result from compliance with the order, and the loss of time to the railroad company and the delays and inconveniences to receivers and shippers of freight which would be caused by compliance with the order;
3. That the findings and order are unreasonable and unlawful in that they constitute an undue and unreasonable burden upon interstate commerce by reason (1) of the unnecessary expense imposed upon the railroad company, an interstate carrier subject to the Interstate Commerce Act as amended and the Transportation Act, 1920, as amended, and (2) of the unnecessary delays to shipments in the course of interstate transportation;
4. That the findings and order are unreasonable and unlawful in that no consideration is given to the necessity for pusher engine service in starting trains out of the yards;
5. That said findings and order are unreasonable and unlawful in that the same arbitrarily affect The New York Central Railroad Company, alone, whereas the use of pusher engines is a common practice upon all the major railroads of the United States;
6. That the findings and order are contrary to and are unsupported by the evidence and the law, and are therefore unreasonable and arbitrary;
7. That the findings and order constitute a deprivation of property without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States and of Article I, Section 19, of the Constitution of Ohio; and
8. That the commission erred in denying the application of the railroad company for a rehearing.
Mr. W.N. King and Mr. C.T. Lewis, Jr., for plaintiff in error.
Mr. John W. Bricker, attorney general, and Mr. Donald C. Power, for defendant in error, the Public Utilities Commission.
Mr. James W. Huffman, for defendants in error, the Brotherhood of Locomotive Engineers et al.
In this opinion the plaintiff in error will be referred to as the railroad company and the defendant in error as the commission.
The power and jurisdiction of the commission is delegated by Section 614-3, Greneral Code:
"The public utilities commission of Ohio is hereby vested with the power and jurisdiction to supervise and regulate 'public utilities' and 'railroads' as herein defined and provided and to require all public utilities to furnish their products and render all services exacted by the commission, or by law, and also to promulgate and enforce all orders relating to the protection, welfare and safety of railroad employees and the traveling public."
It must be conceded that under the authority granted by this section the commission had plenary power to make the order complained of, providing, of course, there was evidence to support the findings upon which the order was based.
An examination of the record in this case reveals substantial evidence to support the findings of the commission.
This court will not substitute its judgment for that of the commission, and will disturb its findings only when they are against the manifest weight of the evidence. In view of the evidence, the order made by the commission was neither unlawful nor unreasonable, as there was an element of danger in placing the pusher engine behind occupied cabooses. Such danger is detailed in the testimony to the effect that the engine in the rear caused the caboose in front to buckle.
The expense in money and time will not be considered, when such expenditure is being made in the interest of safety to life and limb.
The order of the commission applies only to pusher engines within the state of Ohio and in no wise interferes with interstate commerce.
The cases of Penna. Rd. Co. v. Public Utilities Commission, 109 Ohio St. 69, 141 N.E. 839, and New York Central Rd. Co. v. Public Utilities Commission, 123 Ohio St. 370, 175 N.E. 596, dispose of this contention.
The railroad company was not denied due process of law. It had its day in court. We find no error in the findings and order of the commission in this proceeding, and its order is affirmed.
Order affirmed.
WEYGANDT, C.J., WILLIAMS, MATTHIAS, DAY and ZIMMERMAN, JJ., concur.
JONES, J., not participating.