For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Jacobs, J.
Effective October 18, 1964, the Railroads made rule changes which included the elimination of flagging requirements in automatic block signal territory and in manual block signal territory when absolute block is in effect. Thereafter the Brotherhoods filed a complaint before the Board of Public Utility Commissioners primarily attacking the rule changes as not consistent with reasonable safety. After due hearings, a hearing examiner submitted a report with various recommendations including one that the preexisting flagging requirements be reinstated. On January 12, 1966, the Board adopted the examiner's recommendations and entered an order which directed, inter alia, that the Railroads (a) "restore Rules 99 and 152 to the wording in effect prior to October 18, 1964, insofar as said wording pertains to protection by flagging"; and (e) "maintain headlights on each train in conformity with the applicable regulations of the Interstate Commerce Commission." The Railroads appealed to the Appellate Division and we certified before argument there.
The Railroads have long maintained block systems for regulating train movements so as to space trains properly and avoid collisions. A block is a length of track within defined
limits and may be controlled manually or automatically. In the manual block system, permission to enter a block and advice as to whether it is clear is given by an employee, normally by a signal indication at the entrance to the block. In manual absolute block territory (Rule 316), the train is signaled to stop at the entrance of the block containing the preceding train, whereas in manual permissive block territory (Rule 317) it may be permitted to enter the block with speed restriction and warning as to the presence of the preceding train. In automatic block territory, signal indications as to the conditions in each block are given automatically. Electrical circuits in the rails detect the presence of trains and the signals at the entrances to the blocks are governed accordingly. Automatic block signals are so set up as to show the conditions of more than one block ahead. Where the block about to be entered contains a preceding train, the automatic signal is designated as "stop and proceed" which calls upon the engineer to stop and then to proceed with caution at restricted speed not exceeding 15 miles per hour.
In manual block territory, the employee may of course display a false signal which may contribute to a disastrous collision. The possibility of such human error is self-evident and was acknowledged by the Railroads during the hearings before the examiner. Similarly, in automatic block territory, there may be false signals resulting from mechanical or electrical failures and through the malfunction of safety devices. During the hearings, the Railroads introduced evidence as to the high degree of reliability of the automatic signal system. However, they acknowledged that through the years there have been many failures in the operation of the automatic system but stressed that most of these resulted in more restrictive and therefore non-dangerous signals, rather than in "false-proceed" signals which would dangerously call for less restriction than warranted by the actual conditions. During the hearings, the Pennsylvania Railroad's Engineer, Signals and Catenary, testified that from 1955 to 1964 it reported to the Interstate Commerce Commission, false proceed failures
on its entire system which ranged between 3 and 10 in number per annum. During the same period, 6 rear-end accidents occurred in New Jersey and in some of those the absence of flagging was reported as a possible cause.
Prior to October 18, 1964, Rule 99 directed that when a train stops under circumstances in which it may be overtaken by another train, the flagman must go back immediately with flagman's signals, "a sufficient distance to insure full protection," placing torpedoes and, when necessary, lighted fusees. A note stipulated that when operating under automatic block system rules, Rule 99 will have been complied with "when full protection is afforded against trains moving at restricted speed." The October 18th changes provided (1) that when trains are operating under automatic block system rules, "the requirements of Rule 99 do not apply for following movements on the same track," and (2) that when trains are operating under manual block system rules, "the requirements of Rule 99 will not apply for following movements on the same track when Rule 316 is in effect, except when required by train order or timetable instructions."
Several witnesses testified on behalf of the Brotherhoods to the effect that the elimination of the flagman removed an additional safety protection which was reasonably required. They referred to a relatively recent accident which might have been averted by proper flagging activity, and to various accident investigations which have disclosed rusty tracks and other equipment deficiencies likely to lead to failures in the automatic system. Several witnesses on behalf of the Railroads took the position that the elimination of the flagman would increase rather than decrease safety by placing full rather than divided responsibility on the engineer. Mr. Rathvon, Manager of Operating Rules of the Pennsylvania, put the matter this way: "I think that by removing the flagman we have removed the temptation for the engineman to rely on still another signal after he had been given a signal that the track is occupied. I believe in this respect we have created a
rule that will improve the safety of our operations significantly."
The hearing examiner, in recommending that Rule 99 be restored to its wording prior to October 18th insofar as it applied to protection by flagging, flatly rejected the position of the Railroads on the safety issue, noting that "it is evident that the signal systems both automatic and manual are not perfect, and that any means of maintaining a check on possible errors is desirable." He also rejected the change in Rule 152 which eliminated the flagman requirement in cases where trains crossed over to or obstructed other tracks, pointing out that it would remove any responsibility for protection from the train crew and would place it "solely upon the tower ...