Pennsylvania Company v. Public Service Commission of Commonwealth of Pennsylvania/Dissent Hessin Clarke
Mr. Justice CLARKE dissenting.

Of course I agree with the majority of the court that if the United States had taken possession of the field involved in this controversy, the State could not supplement or annul its requirements or regulations, and it is because it seems to me clear that it has done nothing of the kind that I dissent from the conclusion of the court.

The Interstate Commerce Commission has never assumed control over the manner in which trains shall be made up, or manned, or moved, so far as I know; certainly there is nothing in the record in this case to indicate that it has done so.

The section of the State statute held invalid has to do, not with individual cars, but with high speed trains of cars in operation, and it does not prescribe what the construction of mail or express cars shall be, but only that the rear car of trains made up of mail or express cars shall be equipped with a platform as prescribed, with 'exits free from obstruction.' It may be a mail car, or an express car, or a passenger coach or a caboose; the only requirement is that it shall have a platform with guard rail and steps.

For the reason that federal authority had not occupied the field, this court has upheld state laws prescribing the number of men who must be employed to operate trains, Chicago, R. I. & Pac. Ry. Co. v. State of Arkansas, 219 U.S. 453, 31 Sup. Ct. 275, 55 L. Ed. 290, the manner in which the cars of passenger trains shall be heated, N. Y., N. H. & H. Rd. Co. v. New York, 165 U.S. 628, 17 Sup. Ct. 418, 41 L. Ed. 853, the kind of headlight which engines shall carry, Atlantic Coast Line Rd. Co. v. State of Georgia, 234 U.S. 280, 34 Sup. Ct. 829, 58 L. Ed. 1312, and that trainmen shall be subject to state examination as to their qualifications, Smith v. Alabama, 124 U.S. 465, 8 Sup. Ct. 564, 31 L. Ed. 508, Nashville, &c., Ry. v. Alabama, 128 U.S. 96, 9 Sup. Ct. 28, 32 L. Ed. 352.

In this case the action of the court is rested chiefly on the single circumstance that the Interstate Commerce Commission has prescribed requisites for 'Caboose Cars without Platforms,' and since caboose cars are constantly used as end cars, therefore it is concluded the Commission recognizes as lawful a type of end car which the state statute condemns.

If the construction prescribed for 'Caboose Cars without Platforms' at all resembled or was even approximately the equivalent of the construction of express or mail cars in the respects essential to the safety and promptness of service on the rear end of fast trains, or if it appeared that such cabooses are or could be used on such trains, the inference might be justified, but the difference between the two is radical and fundamental. As thus: The illustrations in the record show that mail and express cars have only narrow stirrups and single handholds at the side doors and at their ends, and the ends are equipped with vestibule frames, which render access difficult and dangerous to the brake wheel and markers (signal lights and flags) and to the handholds and stirrups for mounting or alighting. But the requisites prescribed for a 'Caboose without Platform' are a curved and a straight handhold on opposite sides of each side door and 'Side-Door Steps' under each door, with a minimum length of five feet, a minimum width of six inches, a minimum height of backstop of three inches, and hung a maximum height of only twenty-four inches from the top of rail, Such handholds, with such a long, wide and lowhanging step give facilities for mounting or alighting from such a caboose, when in motion, comparable in safety to those of an end platform, and are obviously much better and safer than those on mail or express cars.

The importance of rear end signals cannot be overstated, yet the construction of the ends of express and mail cars, as shown in the illustrations in the record, is such that such signals can be observed by trainmen with difficulty, when the train is moving, and can be put in place or removed only with great risk of injury, especially in time of storm of wind or rain or when the precarious foothold on the narrow ledge of the slightly extended end sill is covered with ice or snow. Such danger is entirely obviated by use of the inexpensive platform prescribed by the state statute.

To this we must add that a caboose is used only on slowly moving freight trains, while the state act deals only with fast trains, which start so rapidly that mounting them is especially dangerous for men, who, in the discharge of duty, must usually be on the ground to the last moment, for observation and for signalling, and with whom a few moments in alighting, when the emergency signal is given, may mean the difference between safety and disaster to themselves and to passengers and property on such and other trains.

It was to furnish facilities to employes for prompt and reasonably safe mounting and alighting from these fast trains and for the discharge of other duties without excessive danger that the statute was enacted, and it seems to me, for the reasons stated, that permitting the use of cabooses without platforms does not cover the rear end requirements of fast express and mail trains, and that the court, in its decision, makes a misapplication of that permission.

It will excite surprise in mamy minds that the plaintiff railroad company does not make, as it is believed many carriers do make, such provision as this statute requires, or its equivalent, from motives of economy, as a protection, from injury to employes and danger to property as well as from the humanitarian motive so obviously involved.

Believing, as I do, that the section of the State statute is a humance, reasonable and intelligent provision for promoting the safety of employes, passengers and property arising from special conditions on the lines of railway, and that there is no federal provision having a like purpose, I decline to share in striking down as unconstitutional a law passed by the Legislature of Pennsylvania, approved by the Public Service Commission of that State as reasonable and necessary and, as I think, by its highest court as constitutional. 

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