100 F.2d 984 (9th Cir. 1939), 8868, United States v. Southern Pac. Co.

Docket Nº:8868.
Citation:100 F.2d 984
Party Name:UNITED STATES v. SOUTHERN PAC. CO.
Case Date:January 14, 1939
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 984

100 F.2d 984 (9th Cir. 1939)

UNITED STATES

v.

SOUTHERN PAC. CO.

No. 8868.

United States Court of Appeals, Ninth Circuit.

January 14, 1939

Page 985

Ben Harrison, U.S. Atty., and Francis C. Whelan, Ralph E. Lazarus, Asst. U.S. Attys., all of Los Angeles, Cal., and J. S. Hawley, Sp. Asst. to U.S. Atty., Interstate Commerce Commission, of Washington, D.C., for appellant.

W. I. Gilbert, of Los Angeles, Cal., A. G. Goodrich, of San Francisco, Cal., and W. I. Gilbert, Jr., of Los Angeles, Cal., for appellee.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

The United States instituted action against the Southern Pacific Company, a common carrier engaged in interstate commerce by railroad, to collect a penalty under the act of Congress known as the Safety Appliance Act, approved March 2, 1893 (27 Stat. 531), as amended by an act approved April 1, 1896 (29 Stat. 85), and as amended by an act approved March 2, 1903 (32 Stat. 943), 45 U.S.C.A.§§ 1 to 10, inclusive, and an order of the Interstate Commerce Commission issued pursuant thereto, dated June 6, 1910, fixing the minimum percentage of operative power brakes required in a train. 1

The complaint sets out ten alleged causes of action, all but one of which (the sixth) were disposed of by confession of judgment. This cause was tried to the District Court, without a jury, and resulted in judgment for the defendant, the court holding that the movement complained of was a switching movement and not a train movement, and hence not violative of any provision of the Act. This is an appeal by the United States from such judgment.

On the morning of May 13, 1937, at about 9:14 a.m. one of defendant's switching engines, in charge of switching crew, assembled nine cars from three different tracks in defendant's Old River Station Yard at Los Angeles, Calif. After such assembling the engine and nine cars proceeded as a unit over a yard running track about 1000 feet. At that point they entered

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defendant's westbound main passenger track, proceeding thereon some 2600 feet to Dayton Avenue tower. There they entered on a freight yard running track and proceeded thereon some 6000 feet to the entrance of defendant's 'A' Yard. They entered the 'A' Yard at this point and proceeded along the yard lead some 1200 feet to the yardmaster's office. The foreman in charge of the movement then entered the yardmaster's office to get instructions from the yardmaster as to what disposition to make of the nine cars. Upon receiving instructions from the yardmaster, the foreman proceeded to switch the nine cars to various tracks.

During the entire movement the airbrake hose between the engine and first car was not coupled, which precluded the operation of the air brake on any of the cars.

During the trip from Old River Station Yard to 'A' Yard, a distance of slightly over two miles, no stops were made for the purpose of setting out, picking up or switching any of the cars. The yard foreman knew, before he left Old River Station Yard, that no switching would be necessary.

The engine and cars during the movement in question crossed one private highway crossing, which is protected by a wig-wag on each side. There are several block signals located on the tracks over which the engine and cars moved, governing movements thereover. The speed of the engine and cars in making the trip did not average in excess of ten miles per hour.

It is the contention of defendant appellee, and the District Court so found, that the movement complained of was not a train movement, but was a switching movement, and as such was not subject to the air-brake provisions of the law.

The appellant asserts that the movement was a train movement, and contends, since it is uncontroverted that the air-brake hose between the engine and the first car was not coupled, that the court should have granted the Government's motion for judgment in its favor as a matter of law.

Appellant also assigns as error the admission of certain testimony on behalf of the defendant, relating to switching cars...

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