United States of America, Appellant, v. Southern Pacific Company, Appellee, 289 F.2d 481 (9th Cir. 1961)

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U.S. Court of Appeals for the Ninth Circuit - 289 F.2d 481 (9th Cir. 1961) April 26, 1961

Laughlin E. Waters, U. S. Atty., Carla A. Hills and Earl P. Willens, Asst. U. S. Attys., Los Angeles, Cal., Henry L. Hilzinger, atty. Interstate Commerce Commission, Sydney Brodie and William A. Kehoe, Jr., attys., Dept. of Justice, Washington, D. C., for appellant.

E. D. Yeomans and John H. Gordon, Los Angeles, Cal., for appellee.

Before BARNES, HAMLIN and JERTBERG, Circuit Judges.


An opinion was filed herein on December 29, 1960, wherein the judgment of the district court based on the third cause of action set out in plaintiff's complaint was vacated and the cause remanded to the district court for a new trial, limited to the issues raised by appellee's second answer to paragraph II of the third cause of action in appellant's complaint.

Appellant has petitioned for rehearing, contending that the cause should be remanded to the district court with directions to enter a judgment in favor of appellant and against appellee in the amount of the statutory penalty of $250.00.

We are now convinced we were in error in remanding the cause for a new trial as stated in our original opinion.

The proviso contained in Section 4 of the Act of April 14, 1910, 36 Stat. 299, 45 U.S.C.A. § 13, the pertinent parts of which appear in note 4 of the appendix to our original opinion, applies only to train movement made after the carrier has discovered the presence of the defective car in the train. It does not reach back and relieve the carrier from liability for hauling a defective car from the time the defect occurs to the time the defect is discovered. See Southern Pacific Company v. United States, 8 Cir., 1927, 23 F.2d 61; St. Louis Southwestern Ry. Co. of Texas v. United States, 5 Cir., 1928, 29 F.2d 568; Alabama Great Southern R. R. Co. v. United States, 5 Cir., 1956, 233 F.2d 520.

Furthermore, the allegations in appellee's second answer to paragraph II of appellant's complaint are insufficient to bring the case within the exception contained in Section 4.

Accordingly, our opinion is modified by striking therefrom our direction to the district court to grant a new trial. The district court is directed to cause a judgment to be entered in favor of the appellant, and against the appellee, in the amount of $250.00. In view of our modification of the original opinion as herein set forth, appellant's petition for rehearing is denied.