UNITED STATES v. GREAT NORTHERN RY. CO., 73 F.2d 736

GARRECHT, Circuit Judge. This caso has boon tried and appealed twice. Both trials resulted in verdicts for the defendant. The controversy concerns the movement of a certain switching engine and cars by servants of the appellee within the area known as and designated in the exhibits as “Seattle House Yard,” an industrial district in the southern part of the city of Seattle.

The evidence shows that at 8 a. m. on January .19, 1932, appellee’s switch engine, operated by a switching crew, started from one of the tracks adjacent to the Great Northern freight house, located in the northerly portion of said house yard, and ran light, or without any ears, to Spokane street, which forms the southerly boundary of the yard where the tracks form a curve to what is calle.d Fifth avenue switching track. This avenue, so called, is merely a railroad right of way situated where Fifth avenue would bo if opened up.

The engine proceeded on this track on the east side of the said right of way north to a point almost opposite to the freight house. Here the crew began a series of switching movements, picking up cal’s at different points until it had assembled nine ears on the east side of Fifth avenue. These cars were then pulled down and were left standing on the straight track about 100 feet north of Spokane street. The engine then ran north on the west side of said Fifth avenue right of way and collected three other cars, then moved back along the said west side to Spokane street.

The distance of this movement of the engine and three cars without an intermediate switching is over a mile. After this return movement, the three cars were connected with the other nine. The various activities engaged in up to this time liad occupied the switching crew for more than two hours. Now, at 10:26 a. m., began the movement complained of, which ended at 10:39 a. m. The engine and twelve cars, having been connected, moved toward the freight house over the course traversed by the engine and crew in entering the yard in the morning.

After running a distance of approximately 1% miles, the movement stopped, and there the government inspectors ceased their observations. However, after having come to the stop, the engine aiid one car wore disconnected from the others and ran down on one of the tracks adjacent to the freight house where the car was switched out.

Then the engine and the crew engaged in the further switching of cars, and, after a time, another ear was brought and joined to the eleven which had been left standing in a body, and the twelve ears were then coupled up and the air brakes connected, and the transfer started for a point known as Interbay, approximately 6 miles distant, and where the Great Northern yard is located. The government charges a violation'of an order of the Interstate Commerce Commission, issued pursuant to the provisions of

section 2 of the Act of March 2, 1903 (32 Stat. 943, 45 USCA § 9), commonly known as the Safety Appliance Act, which order reads as follows: “It is ordered: That on and after September 1,1910, on all railroads used in interstate commerce, whenever, as required by the Safety Appliance Act as amended March 2, 1903, any train is operated with power or train brakes, not less than 85 per cent, of the ears of such train shall have their brakes used and operated by the engineer of the locomotive drawing such train, and all power-braked cars in every such train which are associated together with the 85 per cent, shall have their brakes so used and operated.” The government in making out its case excluded from its evidence, and disregarded all reference to the movement of the switch engine and crew prior to the assembly of the twelve cars on Fifth avenue right of way, which had occupied the efforts of the crew from 8 o’clock until 10:26 a. m., and also sought to exclude everything that occurred after the mile and one-half run, basing the claim of violation of the order upon the movement of the twelve cars and locomotive from the point where they had been assembled on the right of way near Spokane street, to the point where they first stopped and where the engine was again detached to be engaged in further switching movements.

The government takes the position that when the locomotive and twelve ears moved over lead tracks for a distance of a mile and a half, with no stops en route, to set out or pick up ears, that such movement was a train movement and not a switching operation. On the other hand, appellee insists that the IVj mile movement singled out for attack by the government in this ease was but part of the task of switching in a highly industrialized district of the city of Seattle, and was part of the work of making up a train, and was not itself a train movement.

The evidence conclusively shows that here was a switching crew with a switch engine engaged in the house yard of the appellee in making up a train to transfer from this house yard to the Interbay yard. It must be admitted that before the twelve ears were assembled at Spokane street the movements were switching movements, also, that after the mile and one-half run to the point where the twelve cars were again stopped, other switching movements took place.

May appellant be permitted to select this single movement of a mile and one-half and separate it from the other corelated movements and activities which differentiate and distinguish a switching movement from a train movement, and insist that the court shall exclude all other evidence? Appellant complains because the court permitted expert railroad men to express opinions as to whether or not the transfer of the engine and cars charged to be a violation of the law was a. switching movement. These opinions were given by witnesses for both sides without objection.

At the conclusion of the trial, appellant requested that the court instruct the jury “to disregard the opinions of all witnesses as to whether or not the movement * * * was a train movement or á switching operation.” The requested instruction was too broad, as any objectionable opinion testimony was so involved with other proper expert testimony from these railroad men that it would be difficult for an ordinary jury, without additional instructions, to determine the particular evidence that this instruction covered. At the time the opinion evidence was received, no objection was made to its admissibility.

The proper time to have raised this question was when the evidence was being offered. We think that in the circumstances the court committed no error in refusing the instruction. Appellant also requested the court to instruct the jury that in determining whether or not the movement complained of on the day in question was a train movement or a switching operation, the jury should consider only this particular movement, and should give no consideration to what was usually or customarily done on other days. Here again the evidence on this point was received without objection.

Afterwards, counsel for the government asked that it be stricken. In denying the motion the court said: “It went in without objection; you took the chance of having it favorably answered, and having taken that chance, you are estopped from making that motion; denied.” This instruction, the refusal to give which is urged as error, was designed to accomplish the same purpose as the motion.

As indicated elsewhere in this opinion, appellant sought to select and segregate this single movement and separate it from its connection with the other operations then being 'engaged in by the crew, and without regard to the customary work ordinarily and generally being done in the house yard, which would result in a distorted rather than a correct presentation of the nature of the work being done.

Appellant further complains that the court also permitted testimony in relation to the work of switching done in the “house yard” as to the inconvenience that might result from coupling up the air one day and leaving it uncoupled the next day, where sometimes there was immediate work to do and sometimes there was not.

At the time the objection was made, the court restricted the evidence and advised the jury: “ * * * Now, if this was a train movement or transfer movement, it does not make any difference how much inconvenience would result, but the inconvenience that probably would result may be taken into account by the jury as a circumstance bearing upon the question of whether this was a train movement or switching operation. * * * ” In connection with the giving of this evidence appellant further asserts that the court committed error in advising the jury: “On a statute enacted by Congress, the words used ordinarily would have this common meaning, as people ordinarily understand them, but when a law like this is made for the control of those operating trains, it relates to a particular calling, a particular occupation, it was enacted to guide the men operating trains and direct them, what they should do in the operation of trains.

Therefore, when a word is used, used as this word ‘train’ is used in this Statute. The court instructs you, as a matter of law, that it is used in the sense that railroad men could understand it, because it was made for their guidance and direction.” This was comment by the court bearing upon the nature of the evidence then being offered and the reason of its admission and applicability, and was not intended to and did not unduly hamper the jury in its finding, particularly as the meaning’ of the words “train” and “switching” were thereafter correctly given in the court's general instructions.

As pointed out by the appellant, the test does not lie only in the distance of the movement, nor in the number of cars, nor the kind of track, nor even if the work was being done by switching engines or switching crews, but “the controlling test of the statute’s application lies in the essential nature of the work done.” Louisville & J. Bridge Co. v. U. S., 249 U. S. 534, 540, 39 S. Ct. 355, 357, 63 L. Ed. 757; U. S. v. Chicago, Burlington & Quincy R. R. Co., 237 U. S. 410, 413, 35 S. Ct. 634, 59 L. Ed. 1023.

In order for the jury in this case to determine what was “the essential nature of the work done,” it was necessary for them to bo informed what was customarily done in switching movements in and about this house yard. The appellant assigns as error the refusal of the court to give certain other requested instructions. Many of these requests amount in effect to a direction to the jury to find for the appellant, the others, while containing correct propositions of law, are coupled with other argumentative matter, and these were properly refused.

In its general instruction the court defined “switching” as follows: “The court instructs the jury that a switching operation is the assembling of cars into a unit to be later hauled as such unit from the point of assembly to some other point.

It has been pointed out in this ease that the breaking up of a train after it has been hauled to its destination is also a switching movement, but that isn’t necessary to be considered in this case, for if this was a switching movement, it was because of the assembling of cars for a train movement.” The eoiirt’s definition of a “train movement” as given in the general instruction was: “The court instructs the jury that the movement of a train is the movement of a locomotive with one or more cars as a unit following the assembling of such unit. “A moving locomotive and cars attached are without the provision of the Act, only when they are not a train as when the locomotive is engaged in switching, classifying and assembling cars in the yard to make up a train. “'If you should find that at the time and place where the offense referred to in the complaint is alleged to have occurred, the engine and cars were being used in a switching operation and were not then run as a train, your verdict should be for the defendant, but if you should find this movement of these twelve cars was not a switching move ment — and it was a train movement, then your verdict should be for the plaintiff.” These instructions were as adequate as those proposed by appellant.

Appellant also predicates error upon the refusal of the court to direct a verdict in its favor, and insists that a question of law only was presented. In the case of Philadelphia & R. R. Co. v. Bartsch (C. C. A.) 9 F. (2d) 858, 860, where a similar question was involved as to whether the draft was a train, and accordingly whether the movement was a train movement or a switching movement, the court said: “The evidence permitted conflicting inferences.

There was enough evidence for the jury to determine as a fact either that the movement was of a train or of a draft for switching purposes.” Applying the criterion evolved from the decisions of the Supreme Court of the United States that “the controlling test of the statute’s application lies in the essential nature of the work done,” the facts warranted the finding that the crew at the time was engaged in the assembly of cars by means of a series of switching movements, and that at the time complained of the cars had not been assembled into a train to be transferred as such to any particular point.

The government sought to establish a “train movement” by presenting only a part of the work being done by the engine and crew, and disassociating it from the surrounding circumstances. Either the inspectors for the government were endeavoring to make an isolated movement, usually connected with other movements, come within the definition of a train movement, or they erroneously assumed that these cars had actually been assembled into a train unit for transfer to Interbay yard, some 6 miles distant.

They also seemed to have incorrectly assumed, or left it to be inferred, that there was no more switching to be done before the train was made up that day.

Had the government inspectors continued to observe the engine and crow in order to ascertain the “essential nature of the work being done,” they would have learned, as the undisputed testimony shows, that after the engine had transported the cars to the point where the inspectors had discontinued their observations, the switching of cars was resumed; one of the ears which had been assembled with the others was disconnected and delivered to another place, the engine and crew then went elsewhere and brought a car of merchandise, which was then placed with the other cars, and the train made up; the air brakes were then connected and the cars went into a train movement to the Great Northern yards, located at Interbay, 6 miles distant.

Operations such as the one complained of here have been carried on in the “house yard” for many years in the manner described without criticism and without complaint from the inspecting officers. No court has gone to the extent of sustaining the position taken by the government in this case. ' There are important distinctions in this case from those relied upon by the appellant to support the contention that this isolated movement presented here was a train movement. In the case of U. S. v. Southern Pacific Co. (C. C.

A.) 60 F.(2d) 864, 865, cited by appellant, this court extended liability to the limit, but in that case the inquiry was whether under the conditions described separate yard sections or units, which were a mile apart, connected by a track upon no point of which, between the two yard sections any separation of ears occurred, and where there was no purpose that any should occur, constituted a single terminal yard.

The court held that “a distant set of switching facilities, whether reached over a main line track, or over a distant track limited in its use to transfer purposes, will be classed as a separate yard.” The ease seems to have been decided upon the authority of Great Northern Ry. Co. v. U. S. (C. C. A.) 288 F. 190,191, also cited by appellant. This ease is readily distinguishable from the one at bar. There an engine and twenty-four ears were moved from the “P” yard a distance of 4,800 feet, to the “Hay” yard.

The court there said: “It was not a mere switching operation, but was a transfer movement of the 24 cars from one distinct entity, known as ‘P’ yard, to another entity, known as the ‘Hay’ yard.” Attention is also called to the ease of U. S. v. Northern Pacific Ry. Co. (C. C. A.) 54 F.(2d) 573, 574. There the violations complained of were the moving of a string of cars left standing on the side track in the vicinity of the depot along the main line track for a distance of somewhat over one-half mile where the engine switched the ears.

The engine then continued along the main track for a distance of slightly over a mile, and, after disposing of another car, took two loaded oil ears for a return trip. It returned to the depot yards along the main line track with the two loaded oil ears. It is easy to understand how particularly this last movement was correctly held to be a train movement. The court there said: “We are of the opinion that the movements complained of were train movements and subject to the requirements of the Safety Appliance Act.

They were in no sense switching movements within the railroad yards where trains were assembled or broken up.” The opinion then quotes language of Justice Brandeis in U. S. v. Northern Pacific Railway Co., 254 U. S. 251, 41 S. Ct. 101, 65 L.

Ed. 249, as follows: “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 ears within railroad yards for the purpose of making up trains.” The testimony in the ease at bar tended to show that the engine and crew were engaged in switching, classifying, and assembling cars within the railroad yard, for the purpose of making up a train to be taken to Interbay. The case of Great Northern R. R. v.

United States, 297 F. 692, 694, decided by this court, involved the movement of two strings of cars from Appleyard, over a track used for moving westbound through freight trains, to another yard, a distance of 8,000 feet. The language of the opinion makes clear its distinction from this case: “An outstanding material fact is that, after the ears were assembled in tRe eastern yard, the engine and six ears were operated as a unit over lines used by all through freight trains, and the unit crossed over the main line used by all passenger trains and across several city streets.

In its entirety the movements involved operations on tracks not set apart for switching operations, and we must conclude that they were train movements, rather than switching operations.” After referring to other authorities the court continued: “Applied to the facts in the present ease, the rule of the decisions cited leads us to hold that the railway company was not moving cars about in a .yard or on tracks set apart for switching operations at Wenatchee, but moved the train between two yards over a considerable stretch of main line, and unless the engineers could readily and quickly check or control the movements of the trains they were exposed to hazards which the statute covered, and they also became a danger to the safety to other trains which tho statute was equally designed to protect.” Further distinguishing that case from operations where ears are moved about in a yard, it points tho distinction by applying language used in U.

S. v. Erie R. R., 237 U. S. 402, 35 S. Ct. 621, 624, 59 L. Ed. 1019: “But it is otherwise with tho various movements in railroad yards whereby ears 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.” The judgment of the District Court must be affirmed.