SAWTELLE, Circuit Judge.
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:
“ * * * Defendant operated said [transfer] train * * * over its line of railroad in and about Seattle * * * when none of the ears in said train had their brakes used and operated by the engineer of the locomotive drawing said train, and when less than 85 per cent of the ears which composed said train had their brakes used and operated by the engineer of said locomotive engine. * * *»
The order of the commission reads .as follows :
“It is ordered: That on or after September 1,1910, on all railroads used in interstate commerce, whenever, as required by the Safety Appliance Act * * * any train is operated with power or train brakes, not less than 85 per cent of the cars of such train- shall have their brakes used and operated by the engineer of the locomotive drawing such train, and all power-braked cars in every such train which are associated together with the 85 per cent shall have their brakes so used and operated.”
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]*611was “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:
“It is argued that coupling of the train brakes was not necessary for the reason that the street crossings used were protected by gates, that a yard master from an elevated tower watched over the main line movements, and that the coupling of the train-brake appliances would involve more danger to the employees than the movement of the ears without their being used and operated. These suggestions serve to emphasize the dangerous character of the movement. But the construction which the act should receive is not to be found in balancing the dangers which would result from obeying the law with those which would result from violating it, nor in considering what other precautions will equal, in the promotion of safety, those prescribed by the act. Such considerations were for Congress when enacting the law, and it has repeatedly been held by this court that other provisions of the Safety Appliance Act impose upon the carrier the absolute duty of compliance in cases to which they apply, and that failure to comply will not be excused by carefulness to avoid the danger which the appliances prescribed were intended to guard against, nor by the adoption of what might be considered equivalents of the requirements of the act. St. Louis, Iron Mountain & Southern Ry. Co. v. Taylor, 210 U. S. 281, 295, 28 S. Ct. 616, 52 L. Ed. 1061; Great Northern Ry. Co. v. Otos, 239 U. S. 349, 36 S. Ct. 124, 60 L. Ed. 322; St. Joseph & Grand Island Ry. Co. v. Moore, 243 U. S. 311, 37 S. Ct. 278, 61 L. Ed. 741.”
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:
“Congress has not imposed upon courts applying the act any duty to weigh the dangers incident to particular operations; and we have no occasion to consider the special dangers incident to operating trains under the conditions here presented.”
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.
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SAWTELLE, Circuit Judge.
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:
“ * * * Defendant operated said [transfer] train * * * over its line of railroad in and about Seattle * * * when none of the ears in said train had their brakes used and operated by the engineer of the locomotive drawing said train, and when less than 85 per cent of the ears which composed said train had their brakes used and operated by the engineer of said locomotive engine. * * *»
The order of the commission reads .as follows :
“It is ordered: That on or after September 1,1910, on all railroads used in interstate commerce, whenever, as required by the Safety Appliance Act * * * any train is operated with power or train brakes, not less than 85 per cent of the cars of such train- shall have their brakes used and operated by the engineer of the locomotive drawing such train, and all power-braked cars in every such train which are associated together with the 85 per cent shall have their brakes so used and operated.”
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]*611was “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:
“It is argued that coupling of the train brakes was not necessary for the reason that the street crossings used were protected by gates, that a yard master from an elevated tower watched over the main line movements, and that the coupling of the train-brake appliances would involve more danger to the employees than the movement of the ears without their being used and operated. These suggestions serve to emphasize the dangerous character of the movement. But the construction which the act should receive is not to be found in balancing the dangers which would result from obeying the law with those which would result from violating it, nor in considering what other precautions will equal, in the promotion of safety, those prescribed by the act. Such considerations were for Congress when enacting the law, and it has repeatedly been held by this court that other provisions of the Safety Appliance Act impose upon the carrier the absolute duty of compliance in cases to which they apply, and that failure to comply will not be excused by carefulness to avoid the danger which the appliances prescribed were intended to guard against, nor by the adoption of what might be considered equivalents of the requirements of the act. St. Louis, Iron Mountain & Southern Ry. Co. v. Taylor, 210 U. S. 281, 295, 28 S. Ct. 616, 52 L. Ed. 1061; Great Northern Ry. Co. v. Otos, 239 U. S. 349, 36 S. Ct. 124, 60 L. Ed. 322; St. Joseph & Grand Island Ry. Co. v. Moore, 243 U. S. 311, 37 S. Ct. 278, 61 L. Ed. 741.”
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:
“Congress has not imposed upon courts applying the act any duty to weigh the dangers incident to particular operations; and we have no occasion to consider the special dangers incident to operating trains under the conditions here presented.”
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]*612the 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:
“Thus it is plain that in common with other trains using the same main-line tracks, they were exposed to hazards which made it essential that appliances be at hand for readily and quickly cheeking or controlling their movements.”
'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:
“But there is nothing in the act which limits the application of the provision here in question [as to train brakes] to operations on main line tracks.” Page 254 of 254 U. S., 41 S. Ct. 101, 102.
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.