In an action to collect a penalty for the alleged violation of an order of the Interstate Commerce Commission, issued on June 6, 1910, in pursuance of the provisions of section 2 of the Act of March 2,1903 (45 USCA § 9), commonly known as the Safety Appliance Act, the appellant’s complaint contained the following allegation:

The order of the commission reads .as follows :

The alleged “transfer” -consisted of twelve ears drawn by a locomotive. The movement complained of was “slightly longer than 1.45” miles, “involved no intermediate switching on the day in question,” and occurred in the “Seattle House Yard,” an industrial district in the southern part of Seattle, on January 19, 1932.

At the close of all the testimony in the case, the appellant moved the court for a directed verdict in its favor, which motion was denied.

The jury returned a verdict of not guilty, and the appellee was dismissed by a judgment of the court, from which judgment the present appeal was taken.

If the operation in question was a “train” or “transfer” movement, it came within the purview of the statute and the commission’s order; otherwise, it did not. United States v. Erie R. Co., 237 U. S. 402, 408 , 35 S. Ct. 621 , 59 L. Ed. 1019 .

In its brief, on the question of whether or not the court erred in permitting the ease to go to the jury, the appellant asserts that “the fact that in the instant case the entire 1% mile movement was made without a single stop is evidence sufficient to- indicate not only that switching was not performed, but that such straight movement from lead track to the freight house yard was pre-determined.”

There are twenty assignments of error. Under our view of the case, however, it is necessary to consider only the two assignments which deal with the admission of testimony that “coupling up the air hose between ears” *611 was “extremely dangerous.” An objection to a question oil that subject was seasonably made by counsel for the appellant, an exception was duly noted, and error was properly assigned. Likewise, a motion by appellant that testimony to the same effect by the same witness he stricken, was denied, an exception duly taken, and an assignment of error properly made.

The decisions have settled the proposition that the sanctions of the Safety Appliance Act aro “positive” and “absolute,” and that the question of the danger which might result from compliance with the statute is not a matter for the courts, hut for Congress.

Thus in Louisville & Jeffersonville Bridge Co. v. United States, 249 U. S. 534, 539 , 39 S. Ct. 355, 357 , 63 L. Ed. 757 , probably the leading case on this phase of the subject, the court said:

To the eases cited in the Louisville & Jeffersonville Bridge Case, supra, might be added -Minn. & St. Louis R. Co. v. Gotschall, 244 U. S. 66, 67, 68 , 37 S. Ct. 598 , 61 L. Ed. 995 .

Again, in United States v. Northern Pac. R. Co., 254 U. S. 251, 255 , 41 S. Ct. 101, 102 , 65 L. Ed. 249 , Mr. Justice Brandéis said:

The Louisville & Jeffersonville Bridge Case, supra, was followed by this court in Great Northern R. Co. v. United States, 297 F. 692, 696 .

See, also, Chicago, B. & Q. R. Co. v. United States, 220 U. S. 559, 575 , 31 S. Ct. 612 , 55 L. Ed. 582 ; Galveston, H. & H. R. Co. v. United States (C. C. A. 5) 265 F. 266, 267 , certiorari denied 254 U. S. 643 , 41 S. Ct. 14 , 65 L. Ed. 453 ; United States v. Western & A. R. R. (D. C.) 297 F. 482 , 483; Chicago & E. R. Co. v. United States (C. C. A. 7) 22 F.(2d) 729, 730 .

“Literal compliance” with the requirements of the Safety Appliance Act was declared imperative by the Supreme Court in St. Joseph & G. I. R. Co. v. Moore, supra, at page 315 of 243 U. S., 37 S. Ct. 278.

Obviously, therefore, the injection of the question of “safety” into the duty of compliance with the statute is irrelevant, and the testimony admitted by the court below might easily have confused the jury as to the real issue involved; that is to say, Did or not the appellee “literally” comply with the “positive” and “absolute” mandates of the statute?

The appellee, however, seeks to justify the introduction of this “safety” evidence on the ground that the appellant, in the language of the day, “started it first.” “With equal force,” says the appellee, “the Government might complain of the evidence offered by its own Inspector, showing that a number of streets and main line railroads were crossed by the switch engine and twelve cars. * * * In support of our contention that the work ■was switching, we submit that it was equally proper to show the hazards of coupling and uncoupling the air brakes in an operation where usually the engine was constantly being stopped and started for the purpose of picking up and setting out cars.”

Under the decisions, this position of the appellee’s involves a non sequitur. While it is true the defendant in an action of this character is not permitted to show that compliance with the statute would he dangerous, it does not follow that the government may not introduce evidence to prove that dangers to *612 the public and to other trains attended the movement that constitutes the basis of the suit. Indeed, the appellee admits that “the authorities put it beyond our power to complain of this evidence.”

That the “hazards” attending' a train movement constitute an element to be considered in applying the statute in question was made clear in the leading case of United States v. Erie R. Co., supra, at page 408 of 237 U. S., 35 S. Ct. 621, 624:

'Lest it be argued that the foregoing statement would not apply in the instant case, since here there was no movement along main-line tracks, it is observable that the Supreme Court, in the Northern Pacific R. Co. Case, supra, has made it clear that the matter of main-line tracks has no legal significance in this connection:

See, also, United States v. Southern Pacific Co. (C. C. A. 9) 60 F.(2d) 864, 865 , certiorari denied 287 U. S. 667 , 53 S. Ct. 291 , 77 L. Ed. 575 , and United States v. Galveston, H. & H. R. Co. (C. C. A. 5) 255 F. 755, 757, 758 .

Since the evidence to be adduced at the new trial of this case may not be the same as that presented at the first trial, we are not determining whether or not the question of the sufficiency of the evidence in the court below presented a matter of fact. Eor the decision of the instant ease it is sufficient to pass solely upon the admissibility of the evidence as to safety in complying with the statute. As we have said, we believe that the admission of such evidence was prejudicial error.

Judgment reversed, and case remanded for further proceedings not inconsistent with the views herein expressed.