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ARBITRATION AWARD

Edward M. Knapik and Ida Knapik vs. Norfolk and Western Railway Company (NW) and the Newburgh and South Shore Railway Company (NSS)

  1. The captioned suit arose from injuries sustained by Edward M. Knapik, an employee of United States Steel Corporation, (USS) at 6:50 pm, February 6, 1978 at Track 7, Hot Strip Normalizing Plant, U.S. Steel Corporation, Cuyahoga Heights, Ohio.

    Suit was filed in the Court of Common Pleas, Cuyahoga County, Ohio with prayers for judgments that would fully, fairly and adequately compensate each plaintiff for injuries to the husband and loss of services and consortium to the wife.

  2. The Carriers parties to arbitration are the defendants, Norfolk and Western Railway Company and The Newburgh and South Shore Railway Company, both signatory to the Intra-Industry Claims Agreement.

  3. NW 693361 is an insulated box car with plug doors. The car was in dedicated service by agreement between NW and USS. The car had been spotted empty by a NSS railroad crew for loading at Track 7 inside the Cuyahoga Works of USS. The car was rejected by the shipper for failure to meet its specifications, but not because of any defect ultimately resulting in the accident. NSS was notified of the rejection by the shipper and dispatched a railroad crew to remove the car. The NSS crew coupled its engine to the car and moved it a short distance outside the building.

    The NSS Conductor, Dubin, perceived an open door on the car and instructed his crew to return the car to its original position just inside the building. He then instructed the USS employees, among them Edward M. Knapik, to close the door preparatory to removing the car from the premises.

    Claimant Knapik and two other USS employees attempted to close the plug door but encountered difficulty. NSS Conductor, Dubin and NSS Brakeman Akers went to their assistance. While the five men were endeavoring to close the door, it disengaged from its top securement and fell, inflicting injuries to Mr. Knapik. The door was 9'x 9' x 4" thick and weighted 1800 pounds. The top door track (hood) had previously been damaged and was bent outward.

    No question was raised as to the cause of the door disengaging and falling. NSS, by its contention that Rule 17, IICA is applicable, implies that a defect of unknown origin existed, but no repair records or denials of repair appear in the file. Rule 14(a) therefore cannot be invoked. The defect causing the accident may well have existed when the car was placed for loading, in which case, barring the IN TRANSIT theory, Rule 12 might have been applicable. No allegation was made that the car was defectively designed or constructed, eliminating the application of Rule 14(b).

    Were it not for the applicability of the IN TRANSIT rules, 1(a)2) and 1(g), NSS would still have to shoulder the burden under the provisions of Rule 12 which provides that "The originating Carrier shall bear full responsibility for Costs of Accidents occurring in connection with the Movement that are attributed to Defects which can be shown to have existed in the Car when placed, except as provided in Rule 5 and 14". If that were the case, NW would still be free from responsibility since no 90-day repair records exist indicating the type of repair which would have concealed a Defect or caused a Concealed Defect. NW cannot be held responsible merely because it was the Car Owner.

    Injuries were diagnosed as comminuted fracture of the right tibia and fibula and fractures of the right 6th and 7th ribs.

    The case was settled pre-trial June 2, 1980 for $45,000.00 of which NW and NSS each contributed 50% or $22,500.00.

  4. NSS contends that Rules L(a)2) and 17 are applicable to this case. Rule 1(a)2) states, "An ACCIDENT is any occurrence which meets all of the following conditions: (2) the CAR was not IN TRANSIT at the time of the occurrence---". NSS supports its position by stating that Rule 1(g) is inapplicable in that the car was not in motion at the time of the accident , and the car was not being prepared to be put in motion.

    NSS further asserts that the car was in the care, custody and control of the consignee (shipper) and had not been released to NSS so that it could be prepared to be put in motion. NSS further asserts that it is essential that the carrier have its engine coupled to the car before it can begin preparing the car to be put in motion. NSS contends that the engine was not coupled to the car at the time of the accident.

    NSS contends that Rule 17 is the applicable rule, and that Costs should be proportioned there under.

    NW contends that USS ordered a car from NSS to load for movement over NW lines. Subsequent to its being spotted inside the USS building by NSS crew, the car was rejected by USS for reasons unrelated to the accident. The NSS switching crew coupled into the car to remove it from USS premises, but upon discovery that a door was open, the NSS Conductor ordered the car returned to its original spot inside the building. The Conductor then requested the USS people to close the door so that the car could be moved. Three USS employees, including Foreman Knapik, encountered difficulty in closing the door, and two NSS employees, Dubin and Akers, went to their assistance. As the five men manipulated the door, it disengaged from its securement and fell, striking Knapik and an automobile parked nearby.

    Subsequent investigation revealed a bent upper door track which permitted the rollers to exit and the door to fall. NW asserts that the occurrence involved a railroad car IN TRANSIT, citing Rule 1(a)2) which removes an IN TRANSIT car from the scope of the Intra-Industry Claims Agreement. NW further quotes Rule 1(g) which provides that a CAR being prepared to be put in motion by employees or agents of a CARRIER, or relocation of a CAR by a carrier within an area under control of the shipper or consignee is IN TRANSIT.

    Page 7, History of IICA, is also quoted, and NW maintains that the framers of the Agreement clearly intended to limit the application of the Agreement to accidents in which CARRIER employees played no part. NW's position is that the car was IN TRANSIT under Rule 1(g) of the Agreement, and that the agreement is inapplicable under Rule 1(a)2).

  5. The assertion by NSS that the engine had been uncoupled from the car prior to the accident is not borne out by the evidence. Engineer Jakubiec's statement (page 5, lines 19 through 26) seems to imply that the engine remained coupled to the car. Conductor Dubin, in his statement (page 6, lines 21 through 30) stated that he instructed his crew to tie the brake on the car after the accident and to pull the engine out of the building. The implication is that the engine and car were coupled until after the accident.

    Brakeman Bates' statement (page 2, lines 20 through 27) indicates that the engine had been uncoupled and pulled away from the car. Upon reflection, however, he asserted (page 5, lines 14 through 31), "Yes, we were coupled to the car".

    That really is not significant. An engine need not be coupled to a car to be IN TRANSIT as defined in the agreement. Conductor Dubin (page 3, lines 1 through 5) stated the railroad rule that a car cannot be moved unless the doors are closed and locked. He stated further (page 5, lines 41 through 43) "And also, by the way, these cars are stenciled, that they are not to be moved with those doors (not) being closed and locked".

    The closing of car doors, then, is clearly "preparation of a car to be put in motion".

  6. Rule 1(h) defines a MOVEMENT as a single journey beginning with the placing of a CAR by a POSSESSING CARRIER. Rule 2 specifies that a MOVEMENT shall be completed when an ACCIDENT occurs. Rule 17 specifies that the remaining COSTS (after application of Rule 5) shall be apportioned among all CARRIERS that participated in the MOVEMENT to the destination---. Since no Carriers, other than NSS participated in the "MOVEMENT", Rule 17 is inapplicable.

  7. Car NW 693361 was put in motion by NSS, a Carrier by definition. At that point, the car was IN TRANSIT. Upon perceiving an open door, the Conductor ordered the car returned to or near its original position, whereupon three USS employees and two NSS employees attempted to close the car door so that the car could be removed. While this preparation was underway, the accident occurred.

    The NSS Conductor and Brakeman cannot divorce themselves from their employee relationship to NSS. While they could have stood idly by during the door closing, their decision to participate conformed to that portion of the agreement where in a car is described as being IN TRANSIT when being prepared by employees or agent of a Carrier to be put in motion. Preparation is not defined, but conceivably, closing doors to conform to rules or stenciled instructions to do so is preparation.

    It can only be concluded by the foregoing that Rule 1(g), IICA , is applicable. The car was IN TRANSIT, and the case is removed from further consideration insofar as the Intra-Industry Claims Agreement is concerned.

  8. All Costs accruing from the accident should be determined as a matter completely outside the scope of the Intra-Industry Claims Agreement.

Jack C. Best
Arbitrator
9-19-1980