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 necessarily involved the conclusion that the question was one of law, for the Supreme Court in law actions does not pass upon disputed questions of fact nor will it answer questions of fact certified by the Circuit Courts of Appeals. 28 USCA § 346; United States Supreme Court Rule 34; News Syndicate Co. v. N. Y. Central R. Co., 275 U. S. 179, 48 S. Ct. 39, 72 L. Ed. 225; U. S. v. Rider, 163 U. S. 132, 16 S. Ct. 983, 41 L. Ed. 101; Mexican Cent. R. Co. v. Eckman, 187 U. S. 429, 23 S. Ct. 211, 47 L. Ed. 245; Baltimore & Ohio R. Co. v. Interstate C. Comm., 215 U. S. 216, 30 S. Ct. 86, 54 L. Ed. 164; U. S. v. Mayer, 235 U. S. 55, 35 S. Ct. 16, 59 L. Ed. 129. Neither will the Supreme Court answer mixed questions of law and fact so certified. Hallowell v. U. S., 209 U. S. 101, 28 S. Ct. 498, 52 L. Ed. 702; Graver v. Faurot, 162 U. S. 435, 16 S. Ct. 799, 40 L. Ed. 1030. In our own recent decisions where the facts about the movement were not disputed, we have treated the question as to whether or not the movement of ears is a train movement or a switching movement as a question of law in applying the Safety Appliance Act. Great Northern R. Co. v. U. S. (C. C. A.) 297 F. 692; U. S. v. Northern Pacific R. Co. (C. C. A.) 54 F.(2d) 573; U. S. v. So. Pacific Co. (C. C. A.) 60 F.(2d) 864.
I do not think that the ease of Philadelphia & R. Ry. Co. v. Bartsch, 9 F.(2d) 858, decided by the Circuit Court of Appeals for the Third Circuit, is in conflict with this view, but if there is anything to the contrary therein, it seems to me to be in conflict with the numerous decisions of the Supreme Court holding that certain movements of cars are *613train movements within the meaning of the Safety Appliance Act.
If it is trae that the question as to whether or not a movement of cars under circumstances not in dispute is a question of law under the Safety Appliance Act, it is entirely immaterial as far as this appeal is concerned whether or not the evidence complained of was erroneously admitted by the trial court. If under all the evidence the decision must necessarily have been in favor of the railway company on the theory that this was a switching movement and not a train movement, then the evidence which was favorable to the railway company in regard to the dangers of coupling up the train would be quite immaterial and should be ignored by us in determining the legal question, namely, that thh movement was a switching movement. On the other hand, if as a matter of law the movement was a train movement, we should so decide without regard to the evidence erroneously admitted.
The trial court was evidently of the opinion that the question of whether or not the movement of ears was a train movement or a switching movement was a question of fact for in ruling on the motion of the government for a directed verdict the court stated:
“The challenge to the sufficiency of the evidence is overruled and the motion to strike denied, or to direct a verdict in favor of the plaintiff, is denied. Whether this was a switching movement or transfer movement, is a question of fact. If it was so clear under the evidence that the court could hold that reasonable minds could not differ, it might for that reason, take it from the jury, but as the court views it, this is not such a ease.”
The court instructed the jury that the issue was one of fact. I quote from the instruction to that effect as follows:
“This ease is a question of fact. You are the sole and exclusive judges of every question of fact in the case. * * * ”
The real question in dispute was whether or not the entire movement of 1.45 miles made without a stop, or any part of it, was a train movement. This, as I have stated, was a question of law. The only instruction given by the court to the jury upon that subject is as follows:
“The court instructs the jury that a switching operation is the assembly of cars into a unit to be later hauled as such unit from the point of assembly to some other point. It has been pointed out that breaking up of a train, after it has been hauled to its destination is also a switching movement; but that is not necessary to be considered further in this ease. For if it was a switching movement, it was because of the assembly of cars for a train movement.
“If you should find that at the time and place where the offense referred to in the complaint is alleged to have pccurrcd, the engine and ears were being used in a switching operation and was not then run as a train, your verdict must be for the defendant; if this movement of these twelve cars was not a switching movement, then it was a train movement, and your verdict should be for the plaintiff.”
The reversal of the case without considering the questions raised by the government as to its instructions refused will probably be assumed, in the new trial ordered, to be a tacit approval of the instructions given, although I do not understand that the majority of the court so intends, and also of the rulings refusing instructions requested by the government. It seems to me that the instruction given entirely fails to define adequately a train movement or give the jury an understanding of the problem submitted to them. Two instructions, one numbered 5 and one numbered 6, requested by the government,, in my opinion should have been given if the court denied a motion for a directed verdict. These instructions are as follows:
“5. The court instructs the jury that the movement of a train is the movement of a locomotive and one or more ears as a unit, either following the assembling or preceding the breaking up of such unit, either on main, line tracks, or on what may he called lead tracks or tracks connecting two different sections of the same yard.
“6. The court instructs the jury that in determining whether the movement of the locomotive and 12 cars in question was a train movement or a switching operation, the jury must give no consideration to, but should ignore, the fact (a) that the locomotive was equipped as a switching locomotive; (b) that the crew of this movement was designated by defendant as a switching crew; (c) that it was only operated at slow speed; (d) that the defendant had adopted certain safety precautions, such as providing watchmen to flag vehicular traffic or requiring stops to be made at designated points; (e) that the movement was wholly within what defendant has designated as yard limits and not over a main line; (£) that the operation of the required percentage of power or train brakes on the locomotive and 32 cars would result in inconven*614ience or some additional expense to the defendant; (g) that immediately preceding or following the movement of the 12 cars in question, locomotive No. 5 was engaged in switching service; (h) or that, in the opinion of defendant’s officials or employees, the operation of locomotive No. 5 and the 22 ears was just as safe without the use of additional power or train brakes as it would be with them. These are all immaterial.”
I must repeat that in these observations I am speaking for myself only, and that in my view the court should have instructed the jury either that the movement in question was a train movement or that it was a switching movement. I do not express my view as to which way the instruction should be for the reason that the majority of the court has failed to consider that question and therefore an expression of my- opinion would not be helpful and might be confusing in the further progress of the case. I do not believe that anything new will he or can be developed on a new trial which will affect t.he legal question involved.