United States v. Great Northern Ry. Co.

dissenting.

For the reasons stated in my concurring opinion on the former appeal (68 F. (2d) 610) in this case, I think ihe jury should have been instructed by the court as to whether or not tho movement in question was a train movement, in view of the fact that the testimony was undisputed. On the previous hearing I did not express an opinion as to whether or not the jury should have been instructed as a matter of law that the movement in question was a train movement. It appears upon tlie retrial that the engine and twelve cars were moved a. distance of 1.45 miles without stopping and without attaching or detaching- any cars, and that although there wore five points in the first % of a mile of that trip whore on some occasions cars were picked up or detached, upon tho particular trip involved in this action it was known at the time the train started to make the trip of 1.45 miles that there would be no intermediate switching on the day in question.

Under these circumstances I think that the jury should have been instructed that the movement in question was a train movement and that the verdict should have been in favor of the government.

If the majority opinion had determined…

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…