United States v. Southern Pac. Co.

• Citation: 100 F.2d 984
• Decision Date: 14 February 1939
• Docket Number: No. 8868.,8868.
• Parties: UNITED STATES v. SOUTHERN PAC. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

100 F.2d 984 (1939)

UNITED STATES v. SOUTHERN PAC. CO.

No. 8868.

Circuit Court of Appeals, Ninth Circuit.

January 14, 1939.

As Modified on Denial of Rehearing February 14, 1939.

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 a 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 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 air-brake 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 together in train form immediately before the alleged train movement and relating to the breaking up of the train immediately after such alleged movement. Such questioned testimony also relates to the question of whether the engine used was a switching engine, whether the crews used were switching crews, whether the two yards were considered by the defendant as one unit, and as to safety devices along the movement route. In the view that we take of this case such assignments of error lose most of their importance. However, we are constrained to say that no hard and fast rule upon this point can be fashioned. But in a case where the train movement is as clear as it is in this case we cannot see that such evidence adds anything toward clarifying the issue.

One of the first cases arising under the air-brake provisions of the Safety Appliance Act to reach the United States Supreme Court was United States v. Erie Railroad Co., 237 U.S. 402, 35 S.Ct. 621, 59 L.Ed. 1019. In that case, as in the case at bar, the defendant railroad company maintained yards approximately two miles apart. The movement complained of in the cited case was between the yards. No cars were switched out of or into the train while on the way from one yard to another. The Circuit Court had held that the yards were not separate and distinct, but constituted in fact a single yard, and that the movements were switching operations. The Supreme Court reversed the Circuit Court, holding that the yards did not constitute one yard, and that the movements were train operations. In holding that the yards were separate and distinct, the court said (page 406, 35 S.Ct. page 623):

"We cannot assent to the view that the yards at Jersey City, Weehawken, and Bergen are but a single yard. They doubtless are important accessories to the defendant's eastern terminal, but that does not make them one yard. They lie from 2 to 3½ miles apart, are not so linked together that cars may be moved from one to another with the freedom which is usual and essential in interyard movements, and are in actual practice treated as separate yards."

The Court then gave the following test of what constitutes a train within the meaning of the statute (page 407, 35 S.Ct. page 624):

"It will be perceived that the air-brake provision deals with running a train. * * * As the context shows, a train in the sense intended consists of an engine and cars which have been assembled and coupled together for a run or trip along the road. When a train is thus made up and is proceeding on its journey it is within the operation of the air-brake provision. But it is otherwise with the various movements in railroad yards whereby cars are assembled and coupled into outgoing trains, and whereby incoming trains which have completed their run are broken up. These are not train movements but mere switching operations, and so are not within the air-brake provision. * * *

"We are persuaded that the transfer trains moving from Jersey City and Weehawken to Bergen and vice versa came within the purview of the air-brake provision. They were made up in yards like other trains, and then proceeded to their destinations over main-line tracks used by other freight trains, both through and local. They were not moving cars about in a yard or on tracks set apart for switching operations, but were engaged in mainline transportation, and this in circumstances where they had to pass through a dark tunnel, over switches leading to other tracks, and across passenger tracks whereon trains were frequently moving. Thus it is plain that in common with other trains using the same main-line tracks, they were exposed to hazards which made it essential that appliances be at hand for readily and quickly checking or controlling their movements."

Another early case decided by the Supreme Court was United States v. Chicago,...