For modification and remandment -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For modification -- Justice Heher. The opinion of the court was delivered by Jacobs, J. Heher, J. (dissenting in part).
This is an appeal from an order of the Board of Public Utility Commissioners dated April 28, 1953; it has been certified to this court pursuant to R.R. 1:10. See 13 N.J. 430 (1953).
On the evening of February 6, 1951 there was a disastrous wreck on the Perth Amboy and Woodbridge branch of the Pennsylvania Railroad. Eighty-four lives were lost and approximately 860 persons were injured. Thereafter investigations were made by the Board of Public Utility Commissioners and the Attorney-General. During its investigation the board conducted many hearings, which were participated in by representatives of the Pennsylvania, and in due course issued its Findings, Recommendations and Order (Docket No. 5473). On April 19, 1951 the Attorney-General issued his Report. These indicated that the train derailed as it moved onto a temporary runaround track located near the Woodbridge station and put in use for the first time on February 6th. The track was considered safe for a restricted speed and the Pennsylvania had issued its General Order No. 1806 which provided that "Trains and engines must not exceed a speed of 25 miles per hour" at the designated location. Apparently this order had been posted on the Pennsylvania's bulletin boards in accordance with its operating rules and copies had been furnished to the train's engineman, fireman and conductor. However, there were no additional objective precautions designed to insure awareness and observance of the speed restriction. The automatic block signals were not used to indicate the restricted speed and no appropriate slow boards or speed markers were placed along the trackage. In the board's language: "Entire dependence for complying with the speed restriction and for operating trains at reduced speed over the runaround at Woodbridge was placed in the General Order and on the retentiveness of
the memory of the engineman." In its specific findings the board stated that the engineman had failed to reduce the speed of the train to 25 miles an hour when approaching the runaround track; that the accident was caused by excessive speed of the train; and that there was a lack of uniformity in the railroad rules and practices relating to signals or slow boards indicating restricted speed areas. In its recommendations and order the board suggested that the Pennsylvania exercise closer supervision over the distribution of general orders and give consideration generally (1) to the use of markers and automatic block signals to indicate temporary speed restrictions, (2) the use of permanent speed restriction signs, and (3) the installation of an automatic train and speed control system. The Attorney-General's Report also concluded with recommendations and suggested the creation of a commission to study proposed signals and speed restrictions, requirements for examination of train personnel, operation, construction, maintenance and equipment and related matters.
Under date of July 13, 1951 the board addressed letters to the Pennsylvania and the other railroads operating in New Jersey which called a conference for the purpose of ascertaining (1) the adequacy of the physical examinations of enginemen and trainmen; (2) methods of obtaining closer supervision of the distribution of general orders, and (3) methods of bringing about greater uniformity in railroad practices, particularly those relating to the use of cautionary signals, markers and slow boards. The conference was held and ultimately the railroads, including the Pennsylvania, agreed to the following minimum practices: (1) physical examinations of train and engine road service employees not less than every two years; (2) employees in train and engine road service reporting sick to be re-examined if off for more than 30 days; (3) engineers and conductors to receipt for and carry copies of general orders; and (4) temporary slow order practice to provide for a signal at a proper distance in advance of the point of restriction, a second signal at the point of restriction, and a third signal
indicating the end of the restricted territory. A letter confirming this agreement was sent by the railroads' representative to the board under date of September 12, 1951 and a further letter dated September 15, 1951 was sent directly by the Pennsylvania to the board.
Not being satisfied with the extent of the measures being voluntarily undertaken by the Pennsylvania and the other railroads, the board on November 7, 1951 issued orders to show cause in similar form and addressed individually to each of them. The order to the Pennsylvania (Docket No. 5847) directed it to appear before the board on December 12, 1951 and show cause why it should not be required to: (1) establish as minimum practice, physical examination of enginemen in road service at intervals of three months and of firemen in road service at intervals of six months; (2) adopt a rule requiring conductors, trainmen, enginemen and firemen in road service, upon resuming duties after an absence of 15 days or more, to be examined with respect to their knowledge of changes which have occurred in operating rules, time table instructions, or general orders, during their absence; (3) adopt a rule requiring enginemen and firemen in road service upon resuming duties after an absence of three months to be examined as to their knowledge of the physical characteristics of the road over which they will operate; (4) adopt the practice of controlling the automatic block signals to indicate temporary speed restrictions; (5) adopt the practice of installing markers or signs in advance of track affected by permanent speed restrictions; (6) adopt a rule requiring supervisory employees to verify that road service enginemen and conductors are in possession of and have read the general orders, and (7) subject motive power and other rolling stock to more comprehensive and intensive inspection. The hearing was held on December 12, 1951 and was continued on December 13 and 19. No witnesses were called by the board but five witnesses called by the Pennsylvania were duly examined. They included its chief medical examiner, general superintendent of transportation, general superintendent of telegraph, general superintendent
of motor power of the eastern region and assistant mechanical engineer. In addition the Brotherhood of Locomotive Firemen and Enginemen introduced testimony by one of its representatives and by a member of the staff of the Board of Public Utility Commissioners.
The chief medical examiner testified with respect to proposal (1) relating to the physical examination of enginemen and firemen. All employees are subject to pre-employment examination; employees in the engine service are examined every two years before the age of 40 and every year thereafter; firemen are examined before promotion to enginemen and, if furloughed for more than 30 days, undergo further examination before being permitted to return to duty. In response to an inquiry as to why there was more frequent examination after 40 he said: "It is at the age of forty when the degenerative processes begin to set in, and we think that then we should be on the lookout, at least at yearly intervals, to see what is going on in the individual." He acknowledged that many industries now require periodic medical examinations of employees but stated that he knew of none where they were required at three month intervals. The most stringent he had heard of was a six-months' periodic examination of airplane pilots. He expressed the view that there was no need for more frequent examinations of engineers and firemen than those presently being given by the Pennsylvania. He did not testify as to practices on other railroads; in fact, their periodic examinations of enginemen and firemen vary considerably. One railroad examines its enginemen and firemen annually and most of the others examine enginemen annually and firemen biannually, or both classes biannually, with more frequent examinations for the older employees.
The superintendent of transportation testified with respect to proposal (2) relating to examination on changes in general orders after 15 days' absence, and proposal (3) relating to examination on physical characteristics of the road after three months' absence. He expressed the view that neither proposal would add to the safety or increase the efficiency of the
railroad's operations. Pennsylvania's practice is to place general orders on bulletin boards which enginemen and conductors are required to examine when reporting to work. Enginemen instruct their firemen and conductors instruct their trainmen regarding the orders. Men report for work at various points of each of the three divisions of the railroad and there would be considerable expense and inconvenience if, after being absent for 15 days because of vacation or otherwise, they were required to be examined on general orders before one of the qualified rules examiners employed by the railroad. Under Pennsylvania's practice a man must familiarize himself with the physical characteristics of the road before he qualifies as engineman and to keep qualified he must make a trip over the territory once a year. The superintendent's testimony recognized the need for examination on physical characteristics after extended absence but asserted that Pennsylvania's present requirements were sufficient; he did not "think a period less than a year would be necessary." He did not testify as to the practices of other railroads. In fact, one railroad requires enginemen and conductors, absent for 15 days or more, to submit their rules binders for examination to insure that they contain all general orders then in effect; and several others require engineers and conductors in road service, absent for 30 days or more, to be examined by a trainmaster or road foreman with respect to their knowledge of changes in operating rules. Similarly, one railroad requires engineers in road passenger service, absent for 90 days or more, to make a qualifying run under the supervision of a road foreman; another requires a qualifying run after an absence of 120 days and several others require it after an absence of six months.
The general superintendent of transportation testified with respect to proposal (4) relating to the use of the automatic block signals to indicate temporary speed restrictions and proposal (5) relating to the installation of markers or signs to indicate permanent speed restrictions. The Pennsylvania does not manipulate automatic block signals to control speed
and does not maintain permanent speed restriction markers; its witness expressed the view that its present practices are adequate and need not be altered. Practically every mile of Pennsylvania's system is equipped with some form of block signal. The lighter trafficked portions of the railroad are covered by manual block signals, the more densely trafficked portions are covered by automatic block signals, and on the most densely trafficked portions automatic block signals are supplemented by cab signals. The automatic block signals have been used to convey information on the occupancy of track in advance of the train and the witness suggested that their manual manipulation to indicate temporary speed restrictions would impair the integrity of the system in the minds of the enginemen. The representative of the Brotherhood testified in support of this view.
Although markers or signs indicating permanent speed restrictions as contemplated by proposal (5) are used to a certain extent by other railroads, the Pennsylvania does not use them and its witness testified that he considered its practice to be "quite safe." As he put it, "I feel we can quite safely depend on the engineman for his knowledge of the physical characteristics and his knowledge of all of the speed restrictions." He referred to the difficulties in attempting to define the expression "permanent speed restrictions" since oftentimes there are different restrictions in force on the same track at the same time. The Brotherhood's representative expressed the view that proposal (5) "would not contribute to and could possibly detract from safety of operation"; he acknowledged that some of the railroads use markers designating permanent speed restrictions but he doubted their value. He cautioned that the engineman's knowledge of his timetable and the physical characteristics of his run should not be underestimated since "he knows the road like he knows the palm of his hand and takes great pride in a thorough familiarity with the contents of the timetable." Pennsylvania's witness testified that its accident record was improving although there had been a recession "in the past eighteen months." In response to an inquiry he stated that
he had no suggestions as to how the railroad's methods of operation could be improved to reduce accidents. Proposals (6) and (7) were the subject of additional testimony which need not be discussed; the board dismissed these proposals and they are not the subject matter of Pennsylvania's appeal.
On April 28, 1953 the board issued its decision and order which reviewed the testimony in detail and embodied its conclusions and directions. Although they were never formally made part of the record the board stated that it had taken official notice of the Attorney-General's Report, the board's Findings, Recommendations and Order in Docket No. 5473 and the practices of other railroads operating in the State of New Jersey. With respect to proposal (1) it concluded that examinations of three and six months for enginemen and firemen respectively would not at the present time be reasonable, but that it would be reasonable to require as minimum practice the physical examination of enginemen and firemen in road service at least once a year, and more often at the discretion of the medical examiner of the railroad when any significant abnormality is found in an employee. Paragraph I of its order embodies a provision to that effect. With respect to proposal (2) it rejected the testimony that examination after 15 days' absence would constitute an unreasonable burden and concluded that requirement therefor "would be in the public interest by insuring that enginemen and conductors at all times have the full knowledge and understanding of rules and orders necessary to meet the responsibility imposed upon them" and "necessary to promote greater safety in the operation of the railroad." Paragraph II of its order embodies a requirement for such examination. Similarly, the board found that a requirement for the examination of enginemen and firemen on physical characteristics of the road after an absence of three months or more "would be in the public interest by insuring that such employees at all times have the full knowledge of and familiarity with the physical aspects and characteristics of the railroad necessary to meet the responsibility imposed upon them" and "necessary to promote greater
safety in the operation of the railroad." Paragraph III of its order embodies a ...