
    UNITED STATES v. BALTIMORE & OHIO R. CO.
    (Circuit Court of Appeals, Third Circuit.
    March 1, 1911.)
    No. 54.
    Appeal and Error (§ 694) — Review—Insufficiency of Record.
    In an action by the United States against a railroad company for violation of the safety appliance laws, in which the statement of claim contained a large number of counts relating to different cars, and the trial court granted a compulsory nonsuit on the ground that there was not sufficient evidence to sustain a verdict on any count, its action will not be reversed by the appellate court, where the record is in such condition that it is unable to determine what evidence applies to any particular car or count.
    [Ed. Note. — Ebr other cases, see Appeal and Error, Cent Dig. § 2910; Dec. Dig. § 694.*]
    In Error to the District Court of the United States for the Western District of Pennsylvania.
    Action by the United States against the Baltimore & Ohio Railroad Company. Judgment for defendant, and the United States bring error. -
    Affirmed.
    See, also, 176 Fed. 114.
    John H. Jordan, U. S. Atty., and Philip J. Doherty, Sp. Asst. U. S. Atty.
    Johns McCleave, for defendant in error.
    Before GRAY, BUFFINGTON, and LANNING, Circuit Judges.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes.
    
   BUFFINGTON, Circuit Judge.

This was an action brought by the United States against the Baltimore & Ohio Railroad Company to recover penalties for .alleged violation of the safety appliance laws. The statement filed embraced 37 different causes of action, of which a number were subsequently withdrawn, but leaving 22 for consideration in this case. The trial consumed a week, and a large number of witnesses were examined. At the termination of the case the court granted a compulsory nonsuit, and subsequently refused to take it off, saying:

“Inasmuch, therefore, as the plaintiff did not offer evidence sufficient to sustain a verdict upon any one of the several causes of action, the motion to take off the nonsuit must be refused.”

Each of the judges of this court separately, and all of them jointly, have examined and discussed the voluminous testimony, and, owing to the way in which it was taken, we are unable to intelligently apply it to the cars mentioned in the numerous counts. • Nor are we aided in that respect by the briefs in a specific reference to 'testimony applicable to particular cars or particular counts. Under such conditions we are unable to determine whether there was or was not evidence to go to the jury on particular counts, or, indeed, to ascertain with certainty the actual facts involved, and thus have an assured basis with reference to which the statute could be construed.

In the absence, therefore, of any satisfactory showing that the court below committed error in withdrawing the case from the jury, and without expressing any opinion as to the construction placed by it on the statutes, we affirm its action in refusing to take off the nonsuit.  