law occurring in the course of the trial cannot be considered on writ of error unless incorporated into the record by bill of exceptions has no application when the errors assigned are wholly those alleged to have been committed by an intermediate appellate court, even though such court has, like the supreme court of Porto Rico, power to review the evidence, to make new findings of fact thereon, and to enter such judgment as to it may seem proper. [For other cases, see Appeal and Error, VI. b. in Digest Sup. Ct. 1908.] Appeal appeal. which affirmed a judgment of the Supreme Court of Porto Rico, reversing a judgment of the District Court of Mayaguez in favor of defendant in an action to recover damages for breach of contract, and entering a judgment in favor of plaintiff. Affirmed. See same case below, 163 C. C. A. 493, 251 Fed. 499. The facts are stated in the opinion. scope of review — error or the cause and filed a brief for petition 2. The distinction between writs of er ror and appeals, so far as the scope of er. Mr. Justice Brandeis delivered the opinion of the court: Mr. Jorge V. Dominguez submitted review in either proceeding is concerned, the cause for respondent. was not abolished by the provision of the Act of September 6, 1916, § 4, that the reviewing court shall not dismiss a writ of error because an appeal should have been taken, nor dismiss an appeal because a writ of error should have been sued out, but shall disregard such mistakes and take the action appropriate if the proper appellate procedure had been followed. This section merely provides that the party seek ing review shall have it in the appropriate way, notwithstanding a mistake in choosing the mode of review. [For other cases, see Appeal and Error, VIII. e, in Digest Sup. Ct. 1908.] Appeal - jurisdiction of circuit court of appeals - review of facts. 3. Findings of fact in an action at law tried without a jury cannot be reviewed by a circuit court of appeals in the exercise of its jurisdiction, under the Act of January 28, 1915, to review judgments and decrees of the Porto Rico courts. [For other cases, see Appeal and Error, VIII. scope of review -error not assigned or considered below. 4. Rulings of the supreme court of Porto Rico on the measure of damages, which were not assigned as errors in the circuit court of appeals, and were not considered by it, cannot be insisted upon in the Federal Supreme Court as grounds for reversal. [For other cases, see Appeal and Error, VIII. j, in Digest Sup. Ct. 1908.] [No. 54.] Argued and submitted October 21, 1920. Decided December 6, 1920. ON N WRIT of Certiorari to the United States Circuit Court of Appeals for the First Circuit to review a judgment Note. As to when exceptions must be taken to be available on review-see note to Phelps v. Mayer, 14 L. ed. U. S. 643. On distinction between appeal and writ of error-see note to Miners' Bank v. Iowa, 13 L. ed. U. S. 867. The Quiñones sued the Ana Maria Sugar Co. Inc., in a district court of Porto Rico to recover damages for breach of an oral contract to deliver sugar. Liability was denied on the ground that plaintiff had agreed to deposit the purchase price in a bank to defendant's credit before the time for delivery, and failed to do so. trial judge, sitting without a jury, found on conflicting testimony that this stipulation was part of the contract; and, as the deposit had not been made, entered judgment for the defendant. Quiñones appealed to the supreme court of Porto Rico with a bill of exceptions which embodied all the proceedings taken, and included the evidence. The supreme court did not, like the trial court, make specific findings, but it found as a fact upon a review of conflicting evidence that the stipulation relied upon by the company had not been made, reversed the judgment of the trial court, and itself entered judgment for Quiñones in the full amount claimed, with interest. 24 P. R. R. 614. From that judgment the company appealed to the United States circuit court of appeals for the first circuit and assigned fifteen errors. Ten of them charged in different forms that the findings of fact on the main issue were erroneous; three related to the measure of damages; the others were that the complaint did not set [247] forth a cause of action, and that the facts found were insufficient to support the judgment. The circuit court of appeals held that it could consider the last two errors assigned, since they appeared on the face of the record. It gave as the reason for declining to consider the others, that the company had failed to submit to the supreme court any request for rulings, and had taken no exceptions to rulings made. Concluding that the complaint set forth a good cause of action, that the supreme court had power to enter the judgment for Quiñones, and that the facts found supported its judgment, the circuit court of appeals affirmed it. 163 C. C. A. 493, 251 Fed. 499. The case comes here on writ of certiorari. 248 U. S. 555, 63 L. ed. 419, 39 Sup. Ct. Rep. 11. First. The rule relied upon by the circuit court of appeals for refusing to consider errors assigned is well settled. Errors in rulings of law occurring in the course of the trial cannot be considered on writ of error, unless incorporated into the record by bill of exceptions (Rodriguez v. United States, 198 U. S. 156, 165, 49 L. ed. 994, 997, 25 Sup. Ct. Rep. 617), because they are not part of the record proper (Newport News & M. Valley Co. v. Pace, 158 U. S. 36, 39 L. ed. 887, 15 Sup. Ct. Rep. 743. Compare Nalle v. Oyster, 230 U. S. 165, 57 L. ed. 1439, 33 Sup. Ct. Rep. 1043). But this rule applies only when the error complained of is that of the trial court. It has no application when the errors assigned are wholly those alleged to have been committed by an intermediate appellate court; for if the intermediate court has erred in its judgment, the error will appear by the record of that court without a bill of exceptions. Compare Morris v. Deane, 94 Va. 572, 27 S. E. 482. This is true, although the intermediate appellate court has, like the supreme court of Porto Rico, power to review the evidence, to make new findings of fact thereon, and to enter such judgment as to it may seem proper. See Compilation of Revised Statutes & Codes of Porto Rico, § 1141, p. 241, § 5350, p. 867. Compare Andrews v. Cohen, 221 N. Y. 148, 152, 153, 116 N. E. 862. No com plaint was made by the company of any action taken by the court of first [248] instance, which had decided in its favor. The errors assigned in the circuit court of appeals related wholly to action taken by the supreme court. The reason given by the circuit court of appeals for refusing to consider the errors assigned was, therefore, unsound. But, for other reasons, which will be stated, its decision was right. Second. Under § 35 of the Act of April 12, 1900, chap. 191, 31 Stat. at L. 77, 85, Comp. Stat. §§ 3747, 3791, 7 Fed. Stat. Anno. 2d ed. pp. 1259, 1275, the power to review final judgments and decrees of the supreme court of Porto Rico, then exercised exclusively by this court, was limited to matters of law. Garzot v. Rios de Rubio, 209 U. S. 283, 52 L. ed. | 794, 28 Sup. Ct. Rep. 548; Gonzales v. Buist, 224 U. S. 126, 56 L. ed. 693, 32 Sup. Ct. Rep. 463; Rosaly v. Graham y Frazer, 227 U. S. 584, 57 L. ed. 655, 33 Sup. Ct. Rep. 333; Ochoa v. Hernandez y Morales, 230 U. S. 139, 57 L. ed. 1427, 33 Sup. Ct. Rep. 1033; Porto Rico v. Emmanuel, 235 U. S. 251, 59 L. ed. 215, 35 Sup. Ct. Rep. 33. When that act was superseded by § 244 of the Judicial Code, writs of error and appeals from the insular supreme court became subject to the same regulations which governed appeals from the district courts of the United States. Thereby this court acquired power to review questions of fact in cases coming to it on appeal in equity or admiralty (Elzaburu v. Chaves, 239 U. S. 283, 285, 60 L. ed. 290, 36 Sup. Ct. Rep. 47); but in actions at law which are reviewable on writ of error, there was no right in this court to review the facts, although the case was tried without a jury (Behn v. Campbell, 205 U. S. 403, 407, 51 L. ed. 857, 858, 27 Sup. Ct. Rep. 502). The jurisdiction to review judgments and decrees of the Porto Rico courts conferred upon the circuit court of appeals by Act of January 28, 1915, chap. 22, 38 Stat. at L. 803, Comp. Stat. § 1120, is subject to the same limitation. The cause of action here sued on is, in its nature, a legal one. The review should therefore have been prosecuted by writ of error instead of by appeal, although the case was tried without a jury. Oklahoma City v. McMaster, 196 U. S. 529, 49 L. ed. 587, 25 Sup. Ct. Rep. 324. By reason of § 4 of the Act of September 6, 1916, chap. 448, 39 Stat. at L. 727, Comp. Stat. § 1649a, Fed. Stat. Anno. Supp. 1918, p. 421, this failure to adopt the proper appellate proceeding is no longer fatal. But the provision does not abolish the distinction between writs of error and appeals. It merely provides that the party seeking review [249] shall have it in the appropriate way, notwithstanding a mistake in choosing the mode of review. Gauzon v. Compañia General de Tabacos, 245 U. S. 86, 62 L. ed. 165, 38 Sup. Ct. Rep. 46. It was not contended in the insular supreme court that there was no legal evidence to support the finding of the district court. Its judgment was reversed solely because the insular supreme court reached a different conclusion on the issue of fact raised by conflicting testimony. Nor was it contended in the circuit court of appeals that there was no legal evidence on which the insular supreme court could properly rest its finding. Ten of the Third. It is contended that the judgment of the circuit court of appeals should be reversed because the supreme court adopted an erroneous measure of damages. The contract was made August 4, 1914, and the contract price was $3.22 per hundred weight. All the sugar was to have been delivered before the close of the following week, which ended on August 15. The supreme court allowed as damages the sum of $6,173.24, with interest. It is insisted here that the sugar was deliverable in instalments; that there was a gradual rise in sugar between August 6 and August 15; and that the supreme court should have determined the amount recoverable by ascertaining the market price when each of the instalments was deliverable. assignments of error were directed to find-| gust, sold at $6.52 large quantities of ings of fact by the supreme court. As sugar, including the lot in question, and these assignments of error raised no ques- justified its allowance of damages on three tion of law, and as the circuit court of ap- grounds: (1) That on the facts the peals had no power to review findings of profits through sale at increased market fact in an action at law, it properly prices were in contemplation of the pardenied consideration to these ten assign- ties when the contract was entered into, ments of error. and the profit which would have been earned, being ascertainable, could be recovered at common law; (2) that the profits were earned by the company on sugar actually belonging to Quiñones, and that, under the Civil Code of Porto Rico, he was entitled to these profits either "as damages or as the proceeds of a resulting trust;" and (3) that if the company wished to limit the damages by the market price on August 6, it must have proved that other sugar was obtainable on that day in Porto Rico, at what it contended was the then market price, but that it had not done so. These rulings by the supreme court on the [251] measure of damages were not assigned as error in the circuit court of appeals, and, so far as appears, objection to them was not otherwise called to its attention. Under Rule 11 of that court (79 C. C. A. xxvii., 150 Fed. xxvii.), errors not assigned are to be disregarded, except that the court, in its discretion, may notice a plain error not assigned. As the above rulings of the supreme court on the measure of damages were not assigned as errors in the circuit court of appeals, and were not considered by it, they cannot be insisted upon here as grounds for reversal.1 In the circuit court of appeals the company likewise assigned as error that the supreme court had allowed compensation based upon the difference between the contract price of the sugar and its market price at the end of the term fixed for delivery. This assignment entitled [250] it to have that question considered in the circuit court of appeals, although no exception had been taken in the supreme court. The circuit court of appeals did not consider whether the supreme court had adopted the proper measure of damages. It decided only that the supreme court was not obliged to send the case back to the court of first instance to fix the dam The judgment of the Circuit Court of Appeals is affirmed. UNITED STATES, Petitioner, V. ages; that it had power to do so itself up- NORTHERN PACIFIC RAILWAY COM on a review of the evidence introduced below; and that its discretion in doing this could not be said to have been exercised unreasonably, since the question of damages had been tried fully below, citing Burnet v. Desmornes y Alvarez, 226 U. S. 145, 148, 57 L. ed. 159, 160, 33 Sup. Ct. Rep. 63. The difficulty with the company's contention is that it does not appear that the supreme court fixed the amount of the recovery by applying the measure of damages objected to. The contention that it did so finds some support both in the complaint and in the evidence. But the opinion which discusses the subject of damages at length rests the allowance on other grounds. The court found that the company had, during the month of Au PANY. 1. Transfer trains operated by an inter's orders, and under the single operating terstate railway carrier under the yardmasrule which requires all trains to move at such speed that they can be stopped at vision, over a terminal railway a part of which is single track, and on which are several grade highway and railway crossings, are subject to the requirement of the 1 Compare Davis v. Hines, 6 Ohio St. 473, 478; Litchtenstadt v. Rose, 98 Ill. 643; Taylor v. Pierce, 174 Ill. 9, 12, 50 N. E. 1109; Wilson v. Vance, 55 Ind. 584, 591. [For other cases, see Master and Servant, II. Safety Appliance Acts of March 2, 1893, | control, and the passenger trains of anand March 2, 1903, as to the coupling of other company cross it. train brakes so as to be under engine control, since, even under the inadmissible suggestion that the use of the road as part of the main line is essential to the application of this provision, such requirement would be satisfied in a case like the one at bar, where two independent railway companies use the road for freight trains under air 2. The requirement of the Safety Appliance Acts of March 2, 1893, and March 2, 1903, as to the coupling of train brakes Note. On duty and liability under apart, and are not so linked together Federal and state railway Safety Ap- that cars may be moved from one to pliance Acts-see notes to Chicago, M. another with the freedom which is usual & St. P. R. Co. v. United States, 20 and essential in intrayard movements, L.R.A. (N.S.) 473, and Lake Shore & M. and which are, in actual practice, treated S. R. Co. v. Benson, 41 L.R.A. (N.S.) 49. as separate yards, is a train within the As to whether a terminal railway com- meaning of such act. United States v. pany, in moving interstate traffic, is Erie R. Co. supra. The court said: within Federal Safety Appliance Acts-"They were made up in yards like other see note to Belt R. Co. v. United States, 22 L.R.A. (N.S.) 582. Trains and train movements within the meaning of the Federal Safety Appliance Acts as contrasted with switching operations. It seems to be well settled that cars hauled by a switch engine between two railroad yards over a main track, across switches and crossings, and known as transfer trains, are trains, and not switching operations, within the meaning of the Federal Safety Appliance Act of March 2, 1893, and its amendment, which forbids the operation of trains in which less than the requisite number of cars are controlled by air brakes.. United States v. Erie R. Co. 237 U. S. 402, 59 L. ed. 1019, 35 Sup. Ct. Rep. 621; United States v. Chicago, B. & Q R. Co. 237 U. S. 410, 59 L. ed. 1023, 35 Sup. Ct. Rep. 634; Louisville & J. Bridge Co. v. United States, 244 U. S. 533, 63 L. ed. 757, 39 Sup. Ct. Rep. 355; Atchison, T. & S. F. R. Co. v. United States, 117 C. C. A. 341, 198 Fed. 637; United States v. Pere Marquette R. Co. 211 Fed. 220; Chesapeake & O. R. Co. v. United States, 141 C. C. A. 439, 226 Fed. 683; United States v. Galveston, H. & H. R Co. 167 C. C. A. 101, 255 Fed. 755: United States v. Gulf, C. & S. F. R. Co. 167 C. C. A. 104, 255 Fed. 758; La Mere v. Railway Transfer Co. 125 Minn. 159, 145 N. W. 1068, Ann. Cas. 1915C, 667; Kramer v. Chicago & N. W. R. Co. Minn. 181 N. W. 847. Thus, a transfer train of freight cars which are moved over main tracks and over switches leading to other tracks, and through a dark tunnel and across passenger tracks in their operation by an interstate railway company between two of its yards, which lie 2 to 3 miles trains, and then proceeded to their destination over main-line tracks used by other freight trains, both through and local. They were not moving cars about in a yard or on tracks set apart for switching operations, but were engaged in main-line transportation, and this in circumstances where they had to pass through a dark tunnel, over switches leading to other tracks, and across passenger tracks whereon trains were frequently moving. 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 checking or controlling their movements." So, too, the term "trains," as used in such act, includes transfer trains of freight cars carrying no caboose or marker, which are operated by yard or switching crews of an interstate railway company between freight yards in different states, over a considerable stretch of main-line tracks which intersect at grade the tracks of other railway companies. United States v. Chicago, B. & Q. R. Co. 237 U. S. 410, 59 L. ed. 1023, 35 Sup. Ct. Rep. 634. The court stated that it was immaterial that the trains carried no caboose or marker, since otherwise freight trains could easily be put beyond the reach of the statute, and its remedial purpose defeated. Neither is it material that the men in charge were designated as yard or switching crews, for the controlling test of the statute's application lies in the essential nature of the work done, rather than in the names applied to those engaged in it. A transfer of twenty-six freight cars as a unit from one railway terminal to another, for delivery, without uncoupling or switching out any car, involving so as to be under engine control, is not | tached is without the requirement of the limited to operations on main-line tracks. Safety Appliance Acts of March 2, 1893, [For other cases, see Master and Servant, II. and March 2, 1903, as to the coupling of a, 2, b, in Digest Sup. Ct. 1908.] Master and servant - safety appliances train brakes so as to be under engine con-coupling of train brakes. trol, only when it is not a train, as where the operation is that of switching, classify 3. A moving locomotive with cars at And in Stearns v. Chicago, R. I. & P. R. Co. 166 Iowa, 566, 148 N. W. 128, the Feleral statute was held to be applicable to the case of a refrigerator car being pushed by an engine from the railroad yards to a freight house a mile away, since they were required to cross a number of railway and street crossings, and went for some distance along the main line. The court stated that the only exception to the statute that it would feel disposed to make would be a case of switching or spotting cars in the company's own yard. a movement for a distance of of a mile, and necessitating crossing at grade three city streets once, two streets twice, one street three times, and a maintrack movement of at least 2,600 feet, with two stops and startings on the main track, is a train movement within the meaning of such act, and not a mere switching operation. Louisville & J. Bridge Co. v. United States, 249 U. S. 533, 63 L. ed. 757, 39 Sup. Ct. Rep. 355. However, in Baker v. Grace, Tex. Civ. App., 213 S. W. 299, it was held, distinguishing United States v. Erie R. Co. and United States v. Chicago, B. & That the Federal Safety Appliance Q. R. Co. supra, that an engine and Act does not apply to cases of switching two cars used solely for going to the re-operations in switch yards was held in lief of some wrecked or derailed car at some point in one of the company's yards, on some switch track, and never commerce in the hauling of any kind of commerce, was not a train within the meaning of such act, although, in going between the two yards, it used the main line, and crossed other railroads and street crossings. United States v. New York C. & H. R. R. Co. 205 Fed. 428, which held that the hauling of a string of freight cars by a switch engine between two railroad yards, a part of the distance being over the main track and across switches and crossings, was not within the Federal Safety Appliance Act, relied upon Erie R. Co. v. United States, 116 C. C. A. 649, 197 Fed. 287, a later appeal in which (129 C. C. A. 307, 212 Fed. 853) rendering the same decision, was reversed by the United States Supreme Court in 237 U. S. 402, 59 L. ed. 1019, 35 Sup. Ct. Rep. 621. In view of the later Supreme Court cases cited supra, United States v. New York, C. & H. R. R. Co. is of little or no value as authority. Cars coupled together and hauled a distance of 2 miles, not in switching operations, but to be delivered to another crew, are a train although there is no caboose attached or marker displayed. United States v. Grand Trunk R. Co. 203 Fed. 775. So, too, the hauling of a freight car by an electric motor is within the Federal Safety Appliance Act. International R. Co. v. United States, 151 C. C. A. 333, 238 Fed. 317. Farrell v. Pennsylvania R. Co. 87 N. J. L. 78, 93 Atl. 682; Worley v. Southern R. Co. 169 N. C. 105, 85 S. E. 397; Whalley v. Philadelphia & R. R. Co. 248 Pa. 298, 93 Atl. 1016, writ of error dismissed in 241 U. S. 689, 60 L. ed. 1237, 36 Sup. Ct. Rep. 549. It should, perhaps, be satisfied that these cases follow as authority Erie R. Co. v. United States, 116 C. C. A. 649, 197 Fed. 287, the basis of the decision in which was that the movement of the cars under consideration in that case, although between yards treated as separate yards, in reality, owing to the peculiar conditions, amounted to a switching operation in one continuous yard, and so the act did not apply. The same decision was entered in a subsequent appeal (129 C. C. A. 307, 212 Fed. 853). This latter decision was reversed by the United States Supreme Court in 237 U. S. 402, 59 L. ed. 1019, 35 Sup. Ct. Rep. 621, cited supra, on the ground that the movement of the cars was not a switching operation, but was a transfer train between independent yards, and so the Act did apply. As the Worley, Whalley, and Farrell Cases were purely switching operations, they are still authority for the view that switching operations in switch yards are not within the meaning of this act, since the Erie R. Co. Case, supra, is not opposed to such view. It has, however, been held that the Federal Safety Appliance Act applies to a switching operation the object of which is to get together for transfer outside of the state cars which have been placed upon tracks that. in general, |