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 that as a matter of law the movement in question was a switching movement, I would refrain from further comment, contenting myself with a statement of my different view as to the legal conclusion to be drawn from the But as I understand the main opinion, it assumes that the question of whether or not the movement in question was a train movement or switching movement was one to he determined by the jury and that it was so determined under proper instructions. As I feel that tho judgment should be reversed because of errors during the trial and conflicting instructions upon tho law which left the jury without any guide in their deliberations, I will proceed to point out some of the objections I find in the record to the admissibility of opinion evidence and to the instructions given by tho court.
The court instructed tho jury as follows:
“Tho court instructs the jury that the movement of! a train is the movement of a locomotive witli one or more ears as a unit following’ the assembling of such unit.”
As stated by the appellee, “tho facts in the present case are not in dispute.” The jury was instructed as follows:
“Mr. List: I further ask the court to instruct the jury that the only question in this case in issue is whether or not the movement of the twelve cars in question was or was not a train movement or a switching operation, all other factors being admitted — not contradicted.
“The Court: Tho jury arc so instructed.”
It is not disputed that the movement in question was a “movement” of a locomotive and one or more ears as a unit. The instruction does not inform the jury how far the locomotive must move the cars in order that the movement shall bo a train movement. Within the meaning of the instruction, any movement, however slight, would bo a movement of a train if it followed “the assembling of -such unit.” It is not disputed that this movement of 1.45 miles followed the “assembling of such unit.” If it were a train movement within the definition given to tho jury by the court, it was not a switching movement within the definition given by the court in the above-quoted instruction. The theory of the main opinion is that the jury was justified in concluding that the attaching and detaching of a car after the locomotive and twelve ears was moved 1.15 miles was a switching movement, and that the whole of the operation of the cars preceding the arrival at point A vías for the purpose of assembling cars and was therefore a switching movement, hut this is not the instruction given by the court. It is evident that the jury did not understand the instructions according to their fair import for in tho teeth of the instruction they *742found that the movement was not a train movement. The question arises why the jury rendered the verdict for the defendant, in view of this instruction. I think that the reason is not difficult to ascertain, and as it involves one of the assignments of error before us, wo will first allude to the assignment of error which involves the question. The government asked the court to instruct the jury that:
“The jury is instructed to disregard the opinion of all witnesses as to whether or not the movement of the Great Northern locomotive No. 5, tender and twelve ears was a train movement or a switching operation.
“The Court: Denied.
“Mr. List: Exception.”
If I am correct in the premise that the question of whether or not the movement was a train movement was one of law to be decided by the court, it is obvious that the jury should not have considered the opinion of the witnesses as to the law. If the question is one of fact to be decided by the jury, as the appellee contends, it is equally clear that the opinions of the witnesses as to whether or not the movement in question was a train movement should be disregarded. That was the ultimate fact, if it be an issue of fact instead of one at law, to be determined by the jury. I turn now to a discussion of the opinion evidence upon the subject with a view of determining whether or not the court should have given the requested instruction, for if opinion evidence had been offered by both sides without objection, it might well be argued that counsel, after having submitted such evidence, were not entitled to instructions requesting them to disregard such evidence.
The first witness called by the government was William E. Weeks, chief inspector of the bureau of safety of the Interstate Commerce Commission. On direct examination he testified to the movement of the cars on the day in question. He was not asked by the appellant whether or not in his opinion the movement of cars for approximately a mile and a half was a train movement. On cross-examination he stated:
“The movement .1 characterize as a train movement was the movement of an engine and 12 cars from a point in the vicinity of Spokane Avenue and what would be Fifth Avenue South, if opened up, around over Spokane Avenue and northward on what would be Second Avenue, if opened up, to a point in the vicinity marked ‘A’ on this map.”
In addition to referring to the movement of the ears for the mile and a half, he testified to the assembling of ears along Fifth avenue and the operations of the switch engine and cars along Spokane avenue for about a mile. He was then asked this question on cross-examination: “Do you call that a train movement? A. Yes.”
It will be observed that the question calling for the opinion of the witness was addressed to the witness by the appellee. There is some confusion in the record as to whether or not the question related to the movement before arriving at Spokane and Fifth avenues, or after that period. To clear up this confusion later, there was considerable examination of witnesses which for the moment we need not consider.
The next witness, George B. Winter, called by the government, testified to the operation of the ears on the day in question. On cross-examination the witness was asked:
“Q. That is all the work that was done by this switch engine on the morning in question before the 12 ears were coupled up, was industrial switching? A. They were doing industrial switching at that time, yes.
“Q. And the movement as I have just described it to you, along both the east side of Fifth and the west side of Fifth, up to the time the 12 cars were put together, you characterize as industrial switching? A. Yes. * * * ”
Later the witness testified on cross-examination :
“The number of cars would have nothing to do with my conclusion that this was a train movement. Had it been an engine and one car I would still describe this movement as a train movement, exactly as I described the engine and 12 ears; that isn’t necessarily a distinguishing feature.”
This statement is in narrative form and whether or not it was in response to a question calling for opinion evidence is not shown by the record. On redirect examination the witness testified as follows:
“As to this particular movement in question, the one over which the controversy here is being discussed, I would describe as a train movement. As to the other one, from somewhere near Atlantic Street down to Spokane Street, I described that as industrial switching territory movement.
“Q. Is that a railroad term ? A. Providing you are switching ears where you aro setting out one, picking up one, making short movements; if you are making long *743movements from one portion of the yard to another, then it is a train movement.”
It does not appear whether or not the government asked for an expression of this opinion. T his witness was examined at great length on cross-exainiuation and redirect examination as to whether he considered the movements on the day in question train movements or switching movements, and which part thereof he considered switching movements and which part train movements. The large part of tills examination was directed to clearing up the testimony of the witness on former trial and harmonizing it with the testimony in this trial with relation to movements which occurred prior to the 1.45 mile movement in question. The witness testified during this examination that there was a distinction between a railroad man’s definition of train movement and switching service and the lawyer’s understanding of those terms, but he was not permitted to state the difference because of objection that the witness was not qualified to give a legal answer.
The appellee called George Hembrooke, its switching foreman in charge of the operation of the switch engine on the day in question. In the course of his direct examination, after testifying in detail as to the operations on the day in question, he testified, “As a railroad man of 30 years’ experience I would say that the work we did up to the time that the air was coupled was switching.” Tliis would cover the movement of 1.45 miles involved in tliis controversy. It does not appear that this question was objected to. A motion was made to strike out this testimony on the ground that “such a question being one of law for the court or of fact for the jury to decide.” This was denied by the court and an exception taken. This was the first time during the trial that the question of the admissibility of opinion evidence was raised. On cross-examination of this witness by the counsel for the government the following testimony was given:
“I did not do it [couple up air brakes] on this daj7 because, in my opinion, that was what I term a switching operation. That is in contrast to what I would otherwise term a train movement.
“Q. What do you understand a train movement to be? A. Well, train or transfer movement would be bel ween two given points; that is, you wouldn’t have going out on a mainline, where you want to increase the speed, where you travelled 30 or 40 or 50 miles an hour, where the track would be so you could, why—
“Q. (Interrupting) That is one of the differences, what other difference is there, Mr. Hembrooke, if you have any in mind? A. Between a train and a switch movement, you mean ?
“Q. Yes, switch movement, you have described as a switch movement? A. And a train ?
“Q. Yes, what are the chief differences? A. Well, speed would be one and distance yon would have to travel.
“Q. And also the mainline which you referred to while ago? A. Yes, fast track or slow track.
“Q. If it is on the mainline, it wouldn’t make any difference whether it was a fast or slow track? A. That is it.”
On recross-examination the witness testified on that subject, as follows:
“The operation of drags of this kind, 12 or more cars similar to these, are made in what I term yard limits and are under control of the 3mrd master. After they get out of the yard limits, and are termed a train, the yard master loses control of them and their control is handled by the train dispatcher. That is a distinction I draw between a train and switching; as soon as they leave the yard the yard master has no authority. * * *
“Q. It would be a switching operation all the way? A. Yes.”
L. E. Barnes, general yardmaster for the appellee, having twenty years’ railroad experience as yardmaster at Seattle, testified:
“I have heard the description of this work as it was usually done up to the time the air brakes were coupled at the point ‘A’; in my judgment and experience as a railroad man, that was a switching movement and so understood among railroad men.
“Mr. Balmer: That is all.”
During the redirect examination of this witness his attention was directed to the fact that there were five or six places in the first-half mile of the mile and a half run from Spokane avenue to Fifth avenue, point “A,” where on some occasions ears would be picked up or detached, although on the occasion in question the train crew knew there would be no such operations on the day in question. The witness was asked a question which is germane principally because of the instruction of the court to the jury in con-nection with the question. I will therefore quote the record in that regard as follows:
*744“Q. Will yon ■ please answer, then, what inconveniences might or would result on a track where sometimes there was intermediate work to do and sometimes there wasn’t?
“Mr. List: I object, if the Court please. The question of inconvenience has been passed upon by the Circuit Court of Appeals.
“The Court: Objection overruled. The jury are instructed, if this was a train movement, and that includes what has been generally described as a transfer movement, although the courts have decided a number of times that the word 'transfer’ is one of the words in our language that has the very broadest meaning, but, here, it seems to be used in a technical sense. Now, if this was a train movement or transfer movement, it does not make any difference how much inconvenience would result, but the inconvenience that probably would result may be taken into account by the jury as a circumstance bearing upon the question of whether this was a train movement or switching .movement. If it was merely switching, there is no penalty, no wrong has been done by the defendant and there'is no penalty to be imposed. In a statute enacted by Congress, the words used ordinarily would have this common meaning, as people ordinarily understand them but when a law like this is made for the control of those operating trains, it relates to a particular calling, a particular occupation, it was enacted to guide the men operating trains and direct them, what they should do in the operation of trains. Therefore, when a word is used, used as, this word 'train’ is used in this statute. The court instructs you, as a matter of law, that it is used in the sense that railroad men would understand it, because it was made for their guidance and direction. Objection overruled.
“Mr. List: May I have an exception?
“The Court: Exception allowed.
“Mr. List: We, also, ask an exception to the statement of the court to the jury that the jury may consider the inconvenience in deciding whether or not this was a train or a switching operation.
“The Court: My instruction was they could consider that as a circumstance along with the other circumstances in the case, in deciding whether it was a train, transfer or switching movement.
“Mr. List: May I have an exception ?
“The Court: Allowed.
“Mr. List: Also, Congress enacted the law and used the term 'train’ to he considered by the railroads in its ordinary acceptation or understanding by the railroads for their guidance.
“The Court: That wasn’t the instruction. I said in an Act of Congress, the words used in it would, ordinarily, be understood as ordinary men understood them, but this statute was made for the direction and control and guidance of railroad men' and, therefore, the word 'train’ would be understood as railro'ad men usually and customarily understand it.
“Mr. List: The last part is what I have excepted to.
“The Court: Allowed.”
Counsel object to this informal instruction of the court made during the progress of the trial on the ground that it is virtually an instruction in favor of the defendant because of the fact that several railroad men testifying for the defendant had stated that in their opinion the movement in question was a switching movement and not a train movement. This objection is well taken.
It is also objected that the court improperly instructed the jury that the inconvenience which would probably result (from coupling and uncoupling the air brakes, as we understand it, or from changing the method of operation over the mile and a half of track in case there were no ears to be picked up or detached during the run) may be taken into account by the jury as a circumstance bearing upon the question whether this was a train movement or a switching movement. On the conclusion of the defendant’s testimony, George B. Winter, one of plaintiff’s witnesses, was recalled. He produced a book of rules entitled “Great Northern Railway Company Transportation Rules,” which he testified had been in effect for some time. Thereupon the witness was questioned as follows:
“Q. Do they set forth a definition of a train? A. Yes.
“Q. Will you kindly read that? I have promised to return this book, so I don’t want to put it in the record. * * * You just read that one definition, Mr. Winter? A. Entitled, 'Train: An engine or more than one engine coupled with or without cars displaying markers.’ * * *
“Q. Now, to clear up what was confusion to me and, perhaps to some others, yesterday, you testified that certain movements, as asked by Mr. B aimer, were, in your opinion, train movements? A. Yes.
“Q. Were you answering that, having in mind the railroad definition of a train or *745definition of a train as passed upon by the Supreme Court of the United States ?”
This question was objected to and the objection sustained. On cross-examination the witness was asked the following:
“Q. Now, you read the definition of a train in the Rule Book? A. Yes.
“Q. As an engine and cars displaying markers ? A. Yes.
“Q. This engine and ears displayed no markers ? A. It did not.
“Q. And it was not within the railroad definition of a train in the book which you read from? A. It was not.”
In view of the instruction theretofore given by the. court that the word “train” used in the statute should be construed “in the sense that railroad men would understand it because it was made for their guidance and direction,” the appellant contends that the instruction of the court, together with this and the other evidence given by railroad men, was in effect an instruction to find for the defendant. The company rules were introduced by the appellant who cannot complain of the fact that such rule was in evidence. The rule was offered, however, for the purpose of enabling Winter to explain Ms testimony which otherwise was inconsistent. The opinion of the witness as to whether or not the movement in question was a train movement was not competent testimony. The government objected to such evidence upon that ground. The ruling of the court being adverse, they were entitled therefore to adduce evidence of that character without waiving their objection and exception to the evidence offered. I think that the appellant was in a position to ask for the instruction excluding this opinion evidence, although as pointed out, some of the appellant’s witnesses had testified on that subject prior to the objection, but apparently in response to questions which did not directly call for opinion evidence. As the case was finally submitted to the jury, we have in the record opinions expressed by the appellant’s witnesses that the movement in question was a train movement. We have the testimony of the witnesses who were railroad men that in their opinion the movement in question was not a train movement but was a switching movement. We have a rule of the company introduced in evidence defining the train movement in such fashion that it is clear the movement in question is not a train movement under the rule of the railroad company. Wo have a direction by the court to the jury that the words “train movement” should be construed in accordance with the understanding of railroad men, which if applied to the testimony of the railroad men in the case and the rules of the company, would show that the movement was not a train movement. There is also an instruction by the court to the jury in his final charge which, as I have pointed oro, required them to find that the movement was a train movement.
I conclude that the judgment should be reversed, first, for the refusal to grant appellant’s motion for a directed verdict; second, for the refusal of the court to instruct the jury to disregard the opinions of the witnesses upon the ultimate question as to whether or not the movement was a train movement or a switching movement, as requested by the appellant; third, because it was error to overrule the appellant’s objection to the testimony offered by the defendant to the effect that the movement in question was a switching movement; this error, however, is not assigned as error and is? therefore, only germane upon the question last considered.