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ARBITRATION AWARD NO. 2

Odis T. Ireland v. Union Pacific Railroad Company, Southern Pacific Transportation Company, Burlington Northern, Inc., Penn-Central Transportation Company, Pullman, Inc. and Westvaco Corp.

The captioned suit arose from injuries suffered by Odis T. Ireland at Los Angeles, California on October 17, 1974. Ireland was an employee of Williams Transportation Company and was injured when attempting to open 'plug door' on car U.P. 490794, a load of paper products, which had been spotted on his employer's siding located on southern Pacific Transportation Company rail line in vicinity of 1925 Vernon Avenue, Los Angeles, California.

The plaintiff commenced an action in Los Angeles Superior Court, Case No. C-1303-2 naming the railroads involved in handling U.P. 490794 from point of load origin to destination; also names were Pullman, Inc., the car manufacturer and Westvaco, the shipper.

Southern Pacific, the possessing carrier in this case concluded a settlement, which settlement had prior approval of the defendants as follows:

Odis T. Ireland and his attorney:	$180,000.00
Worker's Compensation insurance carrier and its attorney	$ 10,000.00
Total Claim	$190,000.00
Costs expended in this matter by Southern Pacific:
Lynn & Associates Copying Services (Copies of Medical Reports)	$309.68
Sheldon C. Plotkin Engineering Consultant	$1,63.50
Cummins, White & Breidenback Attorney fees, court costs &	$4,034.08
Court reporter transcripts.	$6,007.26
Total Costs	$196,007.26
Settlement contributions received as follows:
Pullman, Inc.	$5,000.00
Westvaco	$7,500.00
Southern Pacific (pursuant to Rule 5 I.I.C.A. agreement)	$2,500.00
Balance	$181,007.26

Pursuant to Rule 33 Southern Pacific Transportation Company notified all interested Carriers it was looking to Penn-Central Transportation Company for reimbursement of the sum of $181.007.26 based upon provisions of I.I.C.A. rules 12 or 13 or 14(a) or 16(a).

Pursuant to Rule 33 Penn-Central Transportation Company notified the paying carrier it rejected and declined to accept responsibility.

Pursuant to Rule 33 Southern Pacific requested Arbitration.

Arbitrators were appointed by Secretary J.D. Temple pursuant to Rule 36.

Pursuant to Rule 38 each carrier submitted to the arbitrator its statement of position:

• Penn-Central (originating carrier): "under the facts of this occurrence and the provisions of the Intra Industry Claims Agreement, particularly Rules 14(c), 16(a), (b) and 17, the Burlington Northern, Union Pacific and or Southern Pacific, is required to bear the full financial responsibility from the accident to Odis T. Ireland and the cost of settlement thereof, except that Southern Pacific is obligated under Rule 5 of the Agreement to pay the sum of $2,500.00."
• Burlington Northern (a carrier): "under the provisions of the Intra Industry Claims Agreement Rules 12, 13, 14(a) and 16(a) either individually or in combination, the Penn Central is required to bear full responsibility for the accident to Odis T. Ireland and the damages paid in satisfaction of that obligation, except for the sum of $2,500.00 to which Southern Pacific is obligated under Rule 5 of the Agreement.'
• Union Pacific (a carrier): - "under the facts of this occurrence and provisions of the Intra Industry Claims Agreement, particularly rules 12, 13, 14(a) and 16(a) the Penn Central (Conrail) is required to bear the full financial responsibility for the accident to Odis T. Ireland and the cost of settlement thereof, except that Southern Pacific is obligated under Rule 5 of the Agreement to pay the sum of $2,500.00."
• Southern Pacific (possessing carrier): - "responsibility lies with Penn Central pursuant to Rules 12, 13, 14(a) and or 16(a). In the event that full responsibility does not lie with Penn Central, it is the position of Southern Pacific Transportation Company that costs shall be allocated on the basis of total revenue calculated without reference to charges of switching carriers. Southern Pacific's percentage of said revenue is 11.94%, which when applied to the costs of $181,007.26 equals $21,612.27. Said allocation is pursuant to Rule 17 of the Intra Industry Claims Agreement."

All parties to this dispute are subject to the terms of the Intra-industry Claims Agreement as provided in its Rule 2, in that each was a Carrier (1'd') participating in a Movement (1'h') in which an accident (1'a') occurred.

Car U.P. 490794 was manufactured by Pullman Inc. and was acquired new by the Union Pacific on or about August 25, 1970, and the latter was the owner of the car on October 17, 1974. The car was placed by Penn Central on or about September 27, 1974 for loading by Westvaco Corp. at Altoona, Pennsylvania and the car was loaded by that firm with paper products, the loading being completed September 30, 1974.

The car was inspected by Mr. George Gripp, lead loader at Westvaco's Tyrone, Pennsylvania plant, before loading, although there is no formal record of this action. Since the usual practice was to reject any unsuitable car, the fact it was used indicates the car was in proper condition for loading (answers to interrogatories by defendant Westvaco Corporation page 3 lines 6 through 10).

U.P. 490794 was moved on or about September 30, 1974 on Penn Central waybill 156590 over Penn Central Lines to Cicero, Illinois where interchanged to Burlington Northern then over their lines to Grand Island, Nebraska where interchanged to Union Pacific then over their lines to Los Angeles and then to Southern Pacific to destination.

U.P. 490794 was placed at Williams Transportation premises on October 17, 1974 for unloading. Williams Warehouse Manager Edward Tuleja noted heavy gauge wire in place of a car seal on the left door of the car, the door of the car from which unloading would take place. Odis Ireland was assigned to open the car and commence unloading. There were no eye witnesses to the actual accident, however, the position of the door following the accident indicated Ireland had just removed the heavy gauge wire and on opening the door handle the door fell straight out onto the dock pinning Ireland underneath it.

The car in question is described as a DF bulkhead, insulated car. Each side has a single plug door, 10 feet wide by 10'6" high weighing approximately 1500-1600 lbs. In the locked position, the door is retained by a geared arm that extends into the door frame, and the car locks with 2 extended arms on each side and 1 in the center and these retainers are released or controlled by a handle on the outside of the door. This is a sliding door on rollers. To slide the door it has to be pushed. The door has rollers top and bottom. The top is contained in a channel and the bottom is retained by the casting on the roller.

The accident took place approximately 8.20 a.m. Railway representatives were on the accident scene within approximately 3 hours making inquiry and performing inspection on the car. These included Claims, Mechanical and Operating personnel of Southern Pacific and Mechanical personnel of Union Pacific. It was established the door feel as it did due to the fact both crank arms were missing from the top of the door. The crank arms are approximately 16 inches long and each weigh 10-12 lbs. These missing arms could not be located at or in the vicinity of the accident location. The area where the arms broke off was rusted showing no shiny metal. Inspection of the door also revealed scrape marks on the outside about 8 inches above the bottom and extending across the door. Car seal which had been placed on completion of loading was found inside the car.

Engineer Consultant Sheldon C. Plotkin, PhD. was engaged by Southern Pacific to examine the car and his report of November 4, 1974 has been duly noted as has Warren R. Brown of Pullman Standard report dated February 14, 1977.

Upon completion of loading at Altoona, Pennsylvania the car was sealed with P.C. Seal KAL 38211 on the right side door and seal P.C. KAL 38212 on the left side door. Following the accident, seal KAL 38211 was still intact on the right door and seal KAL 382112 was found just inside the left door on the floor of the car.

Penn Central Car Foreman Kenneth Hoover applied the seals on the car doors after loading with no exceptions being taken.

On October 8th, 1974 while the car was passing through Chicago, Illinois still on Penn Central lines unusual occurrence report was filed: 'BN-3 by Ewood, 2:02 a.m., at 41st Street; door out of rail and sprung on U.P. 490794. Car set out and BN-3 on move 3:19 a.m., Eng. From 55th Street and car taken to 55th Street and unable to get door closed.' Penn Central Wreck Master Fred Hommelson rectified the problem covered by his report T-467A dated October 8, 1974 which indicates 'U.P. 490794 Ins. Box side door (plug) replaced R'.

October 9th car was interchanged to Burlington Northern at Cicero, Illinois. The doors, safety appliances, underframe were inspected at Cicero by Burlington Northern special agents and mechanical inspectors. No exceptions were taken with respect to the doors and other equipment on the car except that the car bore an 'old lube date' stenciled as August 20, 1970. This type of car has roller bearings which require lubrication every four years. The car was sent to No. 1 receiving track at Cicero where the journal boxes were lubricated on October 10, 1974. (B.N. statement of position paper dated July 12 '78). The B.N. position paper further specifies the car arrived Lincoln Nebraska on October 12, 1974 on train 65. This train was inspected by eight inspectors and no exceptions noted for car UP 490794. The inspection included running gear, safety appliances, brakes and doors.

Union Pacific took the car from Burlington Northern at Grand Island, Nebraska on October 12, 1974 and state no undesired handling of car UP 490794 during subject movement.

Southern Pacific received the car from Union Pacific October 15, 1974 at J-yard in Los Angeles and placed it for unloading at Williams Transportation premises October 17, 1974.

Rule 12 has no bearing as facts submitted do not show 'defect which can be shown to have existed in the car when placed.'

Rule 13 has no application for same reasons as Rule 12.

Rule 14(a) does not apply. Although Penn Central reported a problem with the car the person dealing with the problem reports it was the right door. The right door was not involved in this accident. The cause of the door falling was due to fact both upper crank arms on the left door were missing. These parts have been described as being approximately 16 inches long each and weighing 10-12 lbs. In addition seal on left door was missing at destination. Although the car passed through interchange at three points where inspections were performed or should have been performed and inspections were made or should have been made at many intermediate terminal points on handling roads, none of the conditions which were found after the accident and which obviously had a bearing on the accident occurring were noted. I do not find repair of the car by Penn Central produced a concealed defect nor did it conceal a defect causing an accident within 90 days after the car was placed in service following repair.

Rule 14(a) is not applicable. I do not find that 'design or construction' produced or failed to correct a DEFECT.

Rule 16(a)(b) does not apply for same reasons outlined in 14(a).

The evidence does not show when, where nor how crank arms became missing nor is there any evidence when, where or who applied wire to the accident door. Nor is there any evidence as to when, where or how the left door was scraped.

It is my finding therefore, Rule 17 must apply. The costs of $181,007.26 which remain in dispute shall be apportioned among all carriers participating in the Movement in shares proportionate to the share of each Carrier in the total revenue calculated without reference to charges of Switching Carriers as per waybill 156590.

Revenue earned on movement of UP 490794 is said to be $1,815.00. The division between carriers is not clear as one report on file indicates revenue divided as follows: -

Penn Central	$480.97
Burlington Northern	250.47
Union Pacific	866.84
Southern Pacific	216.72
The other report shows division to be: -
Penn Central	$480.97
Burlington Northern	312.18
Union Pacific	796.02
Southern Pacific	225.83

Final waybill audit statement to be used in establishing percentages to be paid by the four named railroads.

J. R. Chapman
Arbitrator
Canadian Pacific
October 30, 1978