168 F. 542 | 7th Cir. | 1909
Lead Opinion
The writ is addressed to a judgment assessing a penalty against plaintiff in error for an alleged violation of the provisions of the Safety Appliance acts in relation to power brakes. Act Cong. March 2, 1893, c. 196, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174) ; Act Cong. April 1, 1896, c. 87, 29 Stat. 85; Act Cong. March 2, 1903, c. 976, 32 Stat. 943 (U. S. Comp. St. Supp. 1907, p. 885). Certain questions relating to the purpose, scope, and validity of this legislation are considered in Wabash R. Co. v. U. S., and Elgin, etc., R. Co. v. U. S. (herewith decided), 168 Fed. 1.
The only assignments presented and discussed by plaintiff in error are that the court erred in refusing to direct a verdict of not guilty, and in giving the following instruction:
“The question therefore presents itself, and it is a legal question, was the Belt Company, at the time it moved this string of 42 freight ears, containing a ear originating in Illinois and destined to Wisconsin, engaged in interstate commerce? I charge yon that when a commodity originating at a point in one state and destined to a point in another state is put aboard a car, and that ear begins to move, interstate commerce has begun, and that interstate commerce it continues to be until it reaches its destination. If, between the point of origin of this commodity and the point of destination of this commodity, the car in which it is being vehicled from origin to destination passes over a line of track wholly within a city, within a eounty, or within a state, the railway company operating that line of track while moving this commodity, so originating and destined from one point to another point, intrastate, is engaged in interstate commerce.”
Was there sufficient evidence to warrant the jury in finding that in hauling the train in question plaintiff in error as a common carrier was “engaged in interstate commerce by railroad” ?
The railroad tracks of plaintiff in error lie wholly within Cook county, Ill. There are 21 miles of main line and about 90 miles of switching and transfer tracks. The main line constitutes a belt that intersects the trunk lines leading into Chicago. By leads and Y’s direct physical
“The Belt Company acts practically as an agent for the trunk lines in the handling of cars from one connection to another through its yards.”
In United States v. Geddes, 131 Fed. 452, 65 C. C. A. 320, defendant as receiver was operating a narrow-gauge railroad that lay wholly in Ohio. “At Bellaire it connected with the Baltimore & Ohio Road, in the sense that it received from the Baltimore & Ohio freight from other states marked for points on its line, and delivered to the Baltimore & Ohio freight from points on its line marked for other states, in the following manner: There was no interchange or common use of cars, the gauges of the two roads being different. The cars of the defendant road were used only on its own line. But a transfer track ran from the main line of the Baltimore & Ohio to the terminal station of the defendant road, so that the freight cars of the two roads could be placed alongside adjoining platforms, and the transfer of freight made by the use of trucks handled by the Baltimore & Ohio men. No through bills of lading for such freight were issued by either road, no through rate was fixed by mutual arrangement, and no conventional division of a through freight charge was made.” The Circuit Court of Appeals for the Sixth Circuit decided that the narrow-gauge cars in question were not subject to the safety appliance act, holding that a common carrier was not “engaged in interstate commerce by railroad” within the meaning of the safety appliance act unless, referring to the definition in the original interstate commerce act, it was “engaged in the transportation of passengers or property wholly by railroad or partly by railroad and partly by water when both are used, under a common control, management, or arrangement for a continuous carriage or shipment” from one state to another. The equipment of a narrow-gauge railroad which lay wholly in Colorado, and which was similarly endeavoring to conduct a separate and independent business, was held by the Circuit Court of Appeals for the Eighth Circuit to be within the safety appliance act. U. S. v. Colorado, etc., R. Co., 157 Fed. 321, 85 C. C. A. 27, 15 L. R. A. (N. S.) 167. Plaintiff in error argues the present case as if the judgment could not properly be affirmed without our adopting the decision in the Eighth Circuit as against that in the Sixth. In our judgment the question presented to
When the portion of the charge complained of is read in the light of the undisputed facts, we see no basis for saying that the substantial rights of plaintiff in error were injuriously affected.
The judgment is affirmed.
Dissenting Opinion
(dissenting). I cannot concur in the af-firmance of this judgment, as I believe the operation of the Belt Company described in the record is not within the meaning of the safety appliance act. It clearly appears that this company was an independent railroad within the city, engaged only in transferring cars (loaded or unloaded) from the terminal of one trunk line in Chicago to that of another trunk line; that it had no part in the shipment of any commodities which were upon the cars, nor interest in shipping bills or rates charged, nor concern in their ultimate destination and delivery to consignee; that its only service involved herein was the transfer of cars over its own lines, from one terminal to the other in Chicago, when the cars were delivered to it by a trunk line to be so transferred, for which service the Belt Company was paid by the trunk line an arbitrary rate per car, on monthly collections. In such service the Belt Company is neither chargeable with notice whether the service of the trunk lines in respect of the cars is interstate commerce or otherwise, nor concerned in such inquiry, as I believe. It was not “engaged in interstate commerce,” as defined in the interstate commerce act, and I
