Chicago & ER Co. v. United States

• Decision Date: 12 December 1927
• Docket Number: No. 3913.,3913.
• Parties: CHICAGO & E. R. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

22 F.2d 729 (1927)

CHICAGO & E. R. CO. v. UNITED STATES.

No. 3913.

Circuit Court of Appeals, Seventh Circuit.

December 12, 1927.

John E. Gavin, of Chicago, Ill. (Mitchell D. Follansbee and Clyde E. Shorey, both of Chicago, Ill., on the brief), for plaintiff in error.

James S. Hawley, for defendant in error.

Before EVANS, PAGE, and ANDERSON, Circuit Judges.

PAGE, Circuit Judge.

The question raised is: Was the handling in question of its freight cars by the Erie Railroad, at Huntington, Ind., a switching operation, or was it a "train movement," within the meaning of section 2 of the Safety Appliance Act of March 2, 1903 (32 Stat. p. 943 45 USCA § 9; Comp. St. § 8614)?

We are in serious doubt as to whether the record presents anything for review, but that question has not been raised by the parties. What are switching operations, and what are train movements, within the meaning of the Safety Appliance statutes, has many times been presented to the courts.

The Supreme Court has said that: "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." U. S. v. Erie R. R., 237 U. S. 402, 407, 35 S. Ct. 621, 624 (59 L. Ed. 1019). In the same case the court gave a general definition of what constitutes switching operations, and it was held that the acts there in question were train movements within the statute.

We find very little to distinguish that case from this one. In that case and in United States v. Chicago, Burlington & Quincy R. Co., 237 U. S. 410, 35 S. Ct. 634, 59 L. Ed. 1023, very many conditions and elements were considered which seem to influence the determination of the question. In the Burlington Case, there were no fixed schedules, and the movements were not controlled by train dispatchers, but by block signals. It was there held that the absence of a caboose or markings did not make the engine and connected cars any less a train, nor did the fact that the men in charge were designated as yard or switching crews make it any the less a train movement.

In Louisville & Jeffersonville Bridge Co. v. United States, 249 U. S. 534, 539, 39 S. Ct. 355, 357 (63 L. Ed. 757), the court said: "But the construction which the act should receive is not to be found in balancing the dangers which would result from obeying the law with those which would result from violating it, nor in considering what other precautions will equal, in the promotion of safety, those prescribed by the act. Such considerations were for Congress when enacting the law and it has repeatedly been held by this court that other provisions of the Safety Appliance Act impose upon the carrier the absolute duty of compliance in cases to which they apply and that failure to comply will not be excused by carefulness to avoid the danger which the appliances prescribed were intended to guard against, nor by the adoption of what might be considered equivalents of the requirements of the act."

In United States v. Northern Pac. Ry. Co., 254 U. S. 251, 254, 41 S. Ct. 101, 102 (65 L. Ed. 249), it was said: "A moving locomotive with cars attached is without the provision of the act only when it is not a train, as where the operation is that of switching, classifying and assembling cars within railroad yards for the purpose of making up trains."

The whole question was considered at length, and many authorities cited, in Illinois Central R. Co. v. United States, 14 F.(2d) 747 (C. C. A....