United States v. Great Northern Ry. Co.

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 ,…

I concur in the reversal and also in the opinion holding that error was committed in receiving appellee’s evidence.

It seems to me that in this case where there is no controversy over the facts the question of whether or not the movement of the assembled ears is a train movement or a switching movement is one of law to be decided by the court. In U. S. v. Northern Pac. R. Co., 254 U. S. 251 , 41 S. Ct. 101, 102 , 65 L. Ed. 249 , the Supreme Court apparently treated the question involved as one of law, and decided that the car movement therein described was a “train” movement, stating: “ * * * And the cases cited show that transfer trains, like those here involved, are ‘trains’ within the meaning of the act.” The Supreme Court in Louisville & Jeffersonville Bridge Co. v. United States, 249 U. S. 534 , 39 S. Ct. 355 , 63 L. Ed. 757 , answered a question certified by the Circuit Court of Appeals as to whether or not the movement of ears therein described was a train'movement, or, rather, a movement of ears such as required that 85 per cent, of the train brakes should be coupled up so as to be under engine control under the Safety Appliance Act. The affirmative answer of the court…