delivered the opinion of the court.
This was a. civil action by the United States to recover from the Erie Railroad Company a penalty for each of
The declaration contained twenty-six counts. The first seven were based upon the use of that number of cars having defective couplers, the eighth upon the use of a car without grab irons or handholds at one end, and thе remaining eighteen upon the operation of that number of transfer trains in which less than eighty-five per cent, of the cars were controlled by air brakes. All of these acts were charged ,as having occurred in January and February, 1911, on the defendant’s railroаd while it was being used and' operated in moving interstate traffic. The plea interposed was the general issue.
The case was tried twice. The first trial resulted in a judgment for the Government which was reversed by the Circuit Court of Appeals. 197 Fed. Rep. 287. At the second trial thеre was a directed verdict for the defendant and the judgment thereon was affirmed by that court. 212 Fed. Rep. 853. This writ of error challenges the judgment of affirmance.
There was no real conflict in the evidence, the material facts being as follows: The defendant оperates an interstate railroad extending from New York City via New' Jersey to Buffalo and Chicago. In that connection it maintains railroad yards, with docks for ferries and floats, on the west bank of the Hudson River, at Jersey City and Weehawken, where cars are reсeived from and forwarded to various points around New York Harbor; and it maintains another yard at Bergen — inland two miles from Jersey City and three and one-half miles from Weehawken — where cars are received from and forwarded to western points. In the Jersey City yаrd there are 60 tracks, in the Weehawken yard 80 and in the Bergen
The cars named in the first eight counts of the declaration were defeсtive in the particulars charged and while thus defective were hauled — six from Jersey City to Bergen and two from Weehawken to Bergen — in transfer trains along with other cars in commercial use. All of the defects were discovered in the yards from which the cars were moved and those in six of the cars could have been readily repaired in those yards by the local force of car repairers, consisting of seven men at Jersey City and five at Weehawken. The defects in two of the cars were serious and as to them Bergen may have been the nearest available point for making the necessary repairs. These cars were hauled by means of chains instead of draw-bars and there was no claim that they contained live stock or perishable freight.
The transfer trains nаmed in the remaining eighteen counts were hauled — nine from Jersey City to Bergen, two from Weehawken to Bergen,, one from Bergen to Jersey City and six from Bergen to Weehawken — without the requisite number of air brakes being in use or connected for use. On fourteen of these trains there was no attempt to connect any of the air brakes and on the remaining four less than 55 per cent, were connected. Brakemen were required to be on the cars and in some instances rode on the tops of box cars pursuant to a rule
The Circuit Court of Appeals rested its judgment upon the conclusions (a) that the three yards are not separate or distinct, .but with the connecting tracks constitute a single and extensive yard, (b) that the movements of the transfer trains from Jersey City and Weehawken to Bergen and vice versa were mere switching operations and therefore not within the air-brake provision in' the statute, and (c) that it was permissible undеr the statute to haul the cars with defective equipment in the circumstances disclosed.
We cannot assent to the view that the yards at Jersey City, Weehawken and Bergen are but a single yard. They doubtless are important accessories to the defendant’s еastern terminal, but that does not make them one yard. They he from two to three and one-half miles apart, are not so linked together that cars may be moved from one to another with the freedom which is usual and essential in intra-yard movements, and are in actual practice treated as separate yards.
The original Safety Appliance Act is entitled “An Act to promote the safety of employés and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving-wheel brakes, and for other purposes. The first section makes it unlawful, among other things, for a railroad company engaged in interstate commerce “to run any train” in sueh commerce without having a sufficient number of the cars so equipped with train brakes — commonly spoken of as air brakes — that the engineer on the locomotive can control the speed of the train “without requiring brakemen to use the common hand brake for that purpose.” The second section pro
It will be perceived that the air-brake provision deals with running a train, wMle the other requirements relate to hauling or using a car. In one a train is the umt and in the other a car. As the context shows, a train in the sense intеnded consists of an engine and cars wMch have been assembled and coupled together for a run or trip along the road. When a train is thus made up and is proceeding on its journey it is within the operation of the
We are persuaded that-thе transfer trains moving from Jersey City and Weehawken to Bergen and
vice versa
came within the purview of the air-brake provision. They were made up in yards like other trains and then proceeded to their destinations over main-line tracks used by other freight trains, both through and local. They were not moving cars about in a yard or on tracks set apart for switching operations, but were engaged in mainline transportation, and this in circumstances where they had to pass through a dark tunnel, over switches leading to other tracks and across рassenger' tracks whereon trains were frequently moving. Thus it is plain that,- in common with other trains using the same mainline tracks, they were exposed to hazards which, made it essential that appliances be at hand for readily and quickly checking or controlling their movеments. The. original act prescribed that, these appliances; should. consist of air brakes controlled by the engineer on the locomotive,' and the act of 1903 declared that this requirement should
The hauling of the cars with defective equipment was clearly in contravention of the statute. While § 4 of the act of 1910 permits such cars to be hauled, without liability for the statutory penalty, from the place where the defects are discovered to the nearest available point for making repairs, it distinctly excludes from this permission all cars which can be repaired at the place where they are found to be defective, and also declares that nothing therein shall be construed to permit the hauling of defective cars “by means of chains instead of drawbars” in association with other cars in commercial use, unless the defective cars “contain livestock or 'perishable freight.’” Six of the cars that were hauled while their equipment was defective could have been readily repaired at the place where the defects were discovered, which was before the hauling begаn. The remaining two were hauled by means of chains instead of drawbars in association with other cars in commercial use, and it is not claimed that they contained livestock or perishable freight.
It follows that the District Court erred in directing a verdict for the defendant and the Circuit Court of Ap- • peals erred in sustaining that ruling. The judgments of both courts must therefore be reversed and the case remanded to the District Court for a new trial.
It is so ordered.