IICA Information Shortcuts
Overview	Officers	Agreement	Signatories	Arbitrators	Cases

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

On October 17, 1974, Odis T. Ireland, employed as dockman-forklift operator for the Williams Transportation Company, Los Angeles, California, sustained injury on the premises of his employer when after operating the latch to open the left plug type door of car UP 490794, the top of said door fell outward and struck him.

The car movement originated on the Penn Central at Altoona, Pennsylvania and was routed Burlington Northern, Union Pacific and Southern Pacific. All four carriers, along with the car manufacturer, Pullman-Standard, a division of Pullman, Incorporated, and the shipper, Westvaco Corporation, were named as defendants in a suit filed by Plaintiff Ireland in the Los Angeles Superior Court, Cause No. C-139 302. The matter was eventually settled for the total consideration of $190,000.00. Of this amount, Ireland received $180,000.00 and $10,000.00 was paid to the Worker"s Compensation carrier. Co-defendants Westvaco and Pullman-Standard contributed $7,500.00 and $5,000.00, respectively, to the settlement with the balance of $167,500.00 paid by southern Pacific, as possessing carrier under the Intra-Industry Claims Agreement. The carriers have stipulated that the railroads portion of the settlement was concurred in by them without prejudice to the rights of each under the provisions of the IICA. Under cover of March 23, 1978, Southern Pacific, pursuant to Rule 33, sent notice of distribution to each of the carriers. An itemization of costs in the total amount of $183,507.26 was submitted which included in addition to the settlement proceeds of $177,500.00, expenses of $6,007.26 for attorney and expert fees, and other litigation costs. Southern Pacific noted its obligation under Rule 5, as possessing carrier, to pay the first $2,500.00 of costs in the aggregate. It made demand, however, upon the Penn Central for reimbursement of the remaining costs, or $181,007.26, contending full responsibility for such costs rested with Penn Central pursuant to Rules 12, 13, 14(a) and/or 16(a). Without conceding the applicability of Rule 17, Southern Pacific, in the alternative maintained that Rule 17 should otherwise apply if it was not sustained in its position that full responsibility should be placed upon the Penn Central. On April 7, 1978, Penn Central rejected the contentions of the Southern Pacific and instead asserted the costs of the accident should be apportioned per Rule 17. On June 5, 1978, Southern Pacific formally requested arbitration. In their Statement(s) of Position, the Burlington Northern and Union Pacific joined with the Southern Pacific in maintaining that under the provisions of Rules 12, 13, 14(a) and 16(a), the Penn Central should bear full responsibility for the costs of the accident. Penn Central, on the other hand, asserts that pursuant to Rules 14(c), 16(a), (b) and 17, full responsibility for such costs should be borne by the Burlington Northern, Union Pacific and/or Southern Pacific.

The evidence shows that on September 27, 1974, Car UP 490794 was placed by the Penn Central at the Ward Trucking Company Warehouse siding, Altoona, Pennsylvania, for loading with paper products by Westvaco. Shipper asserts the car was inspected before loading by their lead loader, George Gripp; that it was their usual practice to reject any unsuitable car and the fact UP 490794 was used indicates they considered it was in proper condition for loading. After completion of the loading, Westvaco summoned Penn Central Car Foreman Kenneth Hoover, who applied seal PC KAL 38211 to the right door of the car and seal PC KAL 38121 to the left door. Hoover maintains that if he had observed any car defects, he would have noted same in his personal diary and he recorded none. It appears the doors were already closed when Hoover arrived to apply the seals. There is no evidence establishing from which side the car was loaded

The car arrived in Chicago, Illinois via the Penn Central on October 8, 1974. Penn Central document entitled "report of Unusual Occurrences" (Chicago Division), for that date contains the following entry:

"BN-3 by Ewood, 2:02 at 41st Street; door out of rail and sprung on UP 490794, Paper Products. Car set out and BN-3 on move 3:19 AM, Eng. from 55th Street and car taken to 55th Street and unable to get door closed."

Penn Central record, Form MP 200, "Wreck Truck Operation Report," dated October 8, 1974, next discloses that 3 repairmen, under the supervision of Fred Hommelsen, replaced the R (right) plug door on car UP 490794 at the 55th Street Rip Track, Chicago, Illinois. The wreck truck report also notes repairs to a second car, LTTX 501192. Both repair jobs took approximately 95 minutes and were made at a listed cost of $40.00. Hommelsen subsequently telephonically advised the Penn Central Claim Department, Chicago, apparently in early January, 1976, that the right door was repaired, without being removed from the car, by the use of a wooden wedge and metal plates; that the seal was not broken; and that the cause of the door problem was unknown. Hommelsen was further reported to have advised that after the door was rehung and welded shut, the car departed with the shoes missing on the bottom of the door. In statement obtained March 10, 1977, Hommelsen more specifically related the repairs to the right door involved welding the door closed at the top with two pieces of angle; that it was also wedged at the bottom by using three wooden wedges that were spiked. He disclaimed knowledge of any left door problem.

On October 9, 1974, Stanley A. Ulizasz, Penn Central gang foreman, Chicago, prepared AAR billing repair card regarding the repairs performed to car UP 490794 by Hommelsen and his co-workers the previous day. On the billing repair card, Ulizasz recorded "Repl L S Plug D." Mr. Ulizasz was also telephonically contacted by the Penn Central Claim Department, Chicago, in early January, 1975, and indicated that apparently in completing the billing repair card, he had misunderstood Hommelsen and wrote up the left door as the one having been repaired. Ulizasz advised that he did not inspect the car and for that matter never saw it.

Subsequent to the Penn Central repairs, the car was interchanged to the Burlington Northern at Cicero, Illinois, a Chicago suburb, on October 9, 1974. The doors, safety appliances, and underframe were inspected at Cicero by Burlington Northern special agents and mechanical inspectors. No exceptions were taken. However, it was noted the car bore an "old lube date", stenciled as August 20, 1970. The car was equipped with roller bearings which AAR Interchange Rules require be lubricated every four years. Therefore, the BN bad ordered the car in order to lubricate the journal boxes at their Cicero facility on October 10, 1974. BN asserts that no other work was performed on the car. Penn Central and Union Pacific maintain that ordinarily when a car is sent to a repair track for any reason, it must undergo a full and complete Class A inspection. Burlington Northern requests that notice be taken of Rule 77(e) (3) of the 1974 Field Manual of that AAR Interchange Rules which states in part: "When empty car is on repair track for any reason, plug door mechanism must be inspected and lubricated." There is no dispute in the instant case that UP 490494 was underload. Following its departure from Cicero, Illinois, the car moved Burlington Northern to Grand Island, Nebraska (October 12, 1974); Union Pacific to Los Angeles (October 15, 1974); and Southern Pacific to destination (3:30 am, October 17, 1974). It is stipulated between the carriers that there was no report of undesired handling of the car during the aforementioned BN UP and SP movement.

At approximately 7:30 am on October 17, 1974, consignee's Warehouse Manager, Edward Tuleja, noted there were heavy gauge wires in place of the seal on the left door of the car. He did not regard this as unusual for he claimed it frequently occurred. Tuleja apparently conducted no inspection of the car for defects.

Plaintiff went to open the door and unload the car at approximately 8:15 am. After removing the wires which had been placed in the left door in lieu of the original seal (C KAL 38212), he attempted to open the door by use f the handle mechanism. The top of the door feel outward, disengaged from its overhead track and fell onto Ireland. There were no occurrence witnesses. Contrary to the information provided by Mr. Tuleja, it is plaintiff's deposition testimony that when he went to open the door, the seal was intact. Southern pacific suggests however, that Plaintiff's testimony may be inaccurate since he did receive a substantial blow to the head. Following the occurrence, seal PC KAL 38211 was found intact on the right door.

The dispute over whether it was in fact the accident door or left door that was repaired by the Penn Central in Chicago is fueled by the records keeping error of their Chicago Car department personnel. What material evidence is there to support the Penn Central position. Penn Central provides no description of the precise nature of the door problem at Chicago. There are no details of the method used in replacing the door, which reportedly weighed between 1500-2000 lbs. or of the welding procedure employed.

The following were three of the eighteen agreed Stipulations of Fact between the Carriers:

1. PC claims replacement of plug door on car UP 490794 in Chicago 10-8-74 required welding the door shut. Subsequent to subject accident, neither SP nor UP inspectors found recent weld marks on either door of car UP 490794.
2. Inspection of car UP 490794 by SP car forces immediately subsequent to subject accident revealed both top operating cams or crank arms broken and the parts missing on left door. No exceptions taken to right door which PC claims was welded shut.
3. UP replaced left door of car UP 490794 at Pocatello, Idaho, 6-9-75, covered by SP Defect Car dated 2-10-75. No exceptions taken to right door and no repairs to right door. (Union Pacific records do show they straightened the right bottom door track which was bent. For purposes of the stipulation, it appears the door track was considered an appurtenance and not an integral part of the door).

Clearly the Chicago repairs were intended to be temporary in nature or sufficient for the car to reach its destination. Had the car not been under load, it seems reasonable to have expected the Penn Central would have affected complete repairs to the damaged door at Chicago or have bad ordered the car and sent it home for repair. Hommelsen deemed it necessary to apply metal braces and wooden wedges to the door and to weld it closed. In other words, to render it inoperable. The accident occurred nine days following the purported Chicago repairs. No evidence of the work performed by Hommelsen and his crew was found during the number of post-accident inspections conducted of the car and both doors. Assuming that it could be reasonably argued that all welding traces, in some manner, could have been lost or destroyed during the Chicago to Los Angeles movement; that correspondingly the pieces of angle or metal plates have fallen along some right-of-way and further for the wooden wedges, although spiked, to have lost out, one irrefutable fact remains and that is, when the car was returned to the Union Pacific, further repairs to the door would have been necessary to once again make it operable. While Union Pacific straightened the right bottom door track, it is stipulated by the carriers that UP performed no right door repairs.

The only reasonable conclusion, therefore, is that the temporary repairs performed by the Penn Central at Chicago were to the left door or accident door and that said repairs, with 9 days of completion and after the car's release by the Penn Central for service, did conceal the defect causing the Ireland accident.

Southern Pacific, Burlington Northern and Union Pacific also urge the Penn Central should bear full responsibility for costs per Rules 12, 13 and 16(a). I do not believe there is sufficient evidence to sustain the applicability of Rules 12 and 13 and deny same. In the instant case, Rule 16(a) must be applied in concert with Rule 14(a). The evidence is uncontroverted that the car, while in the exclusive control of the Penn Central between Altoona and Chicago, was involved in some handling which caused the door to come open and be discovered "out of rail and sprung" on arrival in Chicago. It is undisputed that a door defect in the same movement caused the Ireland accident and the evidence supports a finding the "out of rail" door at Chicago was also the accident door.

The required showing under Rules 14(a) and 16(a) has been made by the Southern Pacific, Burlington Northern and Union Pacific. The contention of the Penn Central that pursuant to Rules 14(c), 16(a), (b), and 17, full responsibility for the costs of the accident should be borne by the Burlington Northern, Union Pacific and/or southern Pacific is denied.

Award is hereby made that excluding the Southern Pacific's Rule 5 requirement, or assumption of the first $2,500.00 of costs, the Penn Central must bear full responsibility for the remaining costs of the accident or the sum of $181,007.26.

R. B. Dunsworth, Arbitrator
Elgin Joliet and Eastern Railway Company
November 20, 1978