CHICAGO & E. R. CO. v. UNITED STATES, 22 F.2d 729

PAGE, Circuit Judge. The question raised is: Was the handling in question of its freight ears 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 ears 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 ease 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 ears 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 eases 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 no it 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. 8th Cir.). Possibly no exact rule can be laid down by which it can, in all cases, be determined whether there is a train movement or a mere switching operation.

In this ease, whether the three sections constituted one yard or three yards, we think, is immaterial. We have here these facts: After the west-bound train in question came to

section B of the Huntington yard, and the train had been broken up and distribution of cars made, pursuant to instructions, 28 ears remained in

section B of said yard for movement to and further switching in

section C. The switch engine was attached to the 28 ears and “moved from the north (or west) end of

section B of the defendant’s yard out onto its west-bound main track, used by its through freight and passenger trains, and northward (or westward) along said main track for a distance of 1,500 feet, at which point it entered

section C of defendant’s yard and continued northward (or westward) over its switching lead and No. 10 track, a distance of approximately' 2,850 feet.” That west-bound track was “the only track connecting

section B with

section C of the Huntington yards. * * * The air hose between the tender of the locomotive and the first ear were not coupled. * * * No stops were made for the purpose of setting out, picking up or otherwise switching the cars. * * After the’train * * * arrived at the point in

section C of said yard designated as E on Exhibit 3, the crew proceeded, without delay, to classify and deliver the 28 ears on the various tracks of

section C.” In addition to a number of freight and passenger trains “there are from 35 to 40 movements of engines and cabooses, pusher engines or engines with ears attached each 24 hours, in both directions, on the west-bound track,” over which the movements in question were made. There were numerous street crossings and a railroad crossing at grade, over which numerous trains passed daily. An engine and 28 cars would make a train approximately 1,000 feet long.

In so far as they may be considered as influential in determining the ease, we are of opinion that there were present all of the elements of danger against which Congress intended to protect employees and the persons and property of the public by providing an adequate means for controlling train operations. The time necessary to couple or uncouple ears, as well as many other elements discussed in this case, must not influence the construction of the statute by the courts unless and until Congress shall make obedience to the law conditional and not absolute.

We think there is shown a “train movement,” within the meaning of the statute, and that the judgment should be, and it is, affirmed.