203 F. 953 | 2d Cir. | 1913
Two cars loaded with horses were shipped from Girard, Kan., consigned to shippers’ order at the defendant’s stockyard in East Buffalo. The routing was via the St. Louis & San Francisco Railroad Company to Kansas City, thence by the Wabash Railroad Company through Missouri, Indiana, Iowa, Michigan, and Canada, to Black Rock, Buffalo, where the cars were received by the defendant to be transported to destination, a distance of seven miles. The Wabash Company did not unload the horses for food, water, and rest between Peru, Ind., and Black Rock, a period of 38 hours and 55 minutes. The defendant occupied 3 hours and’35 minutes in transporting the cars to destination in East Buffalo.
The United States instituted these two actions to recover of the defendant a penalty of $500 for each car for violation of Act June 29, 1906, 34 Stat. 607, sections 1 and 3 of which read:
“Section 1. That no railroad, express company, car company, common carrier other than by water, or .tbe receiver, trustee, or lessee of any of them, whose road forms any part of a line of road over which cattle, sheep, swine, or other animals shall be conveyed from one state or territory or the*955 District of Columbia into or through another state or territory or the District of Columbia, or the owners or masters of steam, sailing, or other vessels carrying or transporting cattle, sheep, swine, or other animals from one state or territory or the District of Columbia into or through another state or territory or the District of Columbia, shall coniine the same in cars, boats, or vessels, of any description for a period longer tha.11 28 consecutive hours without unloading the same in a humane manner, into properly equipped pens for rest, water, and feeding, for a period of at least five consecutive hours, unless prevented by storm or by other accidental or unavoidable causes which can not he anticipated or avoided by the exercise of due diligence and foresight: Provided, that upon the written request of the owner or person in custody of that particular shipment, which written request shall be separate and apart from any printed bill of lading, or other railroad'form, the time of confinement may be extended to thirty-six hours. In estimating such confinement, the time consumed in loading and unloading shall not be considered, but the time during which the animals have been confined without such rest or food or water on connecting roads shall be included, it being the intent of this act to prohibit their continuous confinement beyond the period of twenty-eight hours, except upon the contingencies hereinbefore stated: Provided, that it shall not be required that sheep be unloaded in the nighttime, but where the time expires in the nighttime in case of sheep the same may continue in transit to a suitable place for unloading, subject to the aforesaid limitation of thirty-six hours.”
“Sec. 3. That any railroad, express company, car company, common carrier other -than by water, or the receives1, trustee, or lessee of any of them, or the master or owner of any steam, sailing, or other vessel who knowingly and willfully fails to comply with the provisions of the two preceding sections shall for every such failure be liable for and forfeit and pay a penalty of not less than one hundred nor more than five hundred dollars: Provided, that when animals are carried in cars, boats, or other vessels in which they can and do have proper food, water, space, and opportunity to m-f the provisions in regard to their being unloaded shall not apply.”
JJ. S. Comp. St. Supp. 1911, pp. 1341, 1342.
The complaint alleged the foregoing facts, and also that the defendant was not prevented from complying with the act by storm or other accidental and unavoidable causes which could not be anticipated or avoided by the exercise of due diligence! and foresight, but knowingly and willfully failed to unload the horses in transit as aforesaid.
The defendant filed answers, which alleged that it received the cars at Black Rock from its connecting carrier, the Wabash Railroad Company, without knowing the time the horses had been confined, and transported them within the usual and reasonable time to- destination in East Buffalo; also that, if there were any violation of law, it was committed by the Wabash Railroad Company, which had been sued by the United States and fined, which judgment duly satisfied it pleaded in bar of the action.
At the trial a jury was duly waived and the cause submitted to the court. The parties stipulated that the facts stated in the complaint were true; also that the time of confinement of the horses had been extended from 28 to 36 hours, the defendant reserving the right to show that when it received the cars it did not know that the horses had been confined longer than'the law allowed; also to prove that, If it had refused to transport the cars, they would have had to go back to Michigan, a trip taking from 15 to 20 hours, before the horses could have been unloaded because, being carried in bond, they could
The judgment is affirmed.