169 F. 404 | 8th Cir. | 1909
The single question to be considered in this case is, Is the Union Stockyards Company of Omaha a “common carrier engaged in interstate commerce by railroad,” within the meaning of the safety appliance law of Congress, Acts March 2, 1893, c. 196, 27 Stat. 531 (U. S. Comp. St 1901, p. 3174), April 1, 1896, c. 87, 29 Stat. 85, and March 2, 1903, c. 976, 32 Stat. 943 (U. S. Comp. St. Supp. 1907, p. 885) ? In the District Court, where the question arose upon an agreed statement of facts, it was answered in the affirmative. 161 Fed. 919. The facts disclosed by the agreed statement are substantially as follows: The stockyards company is a Nebraska corporation, and owns and conducts an extensive stockyards at
It is the contention of counsel for the stockyards company that the service performed by it is such only as the railroad companies are bound to perform for their patrons; that having no facilities for performing this service at' South Omaha the railroad companies merely employ the stockyards company to furnish the requisite facilities and to operate them; that the performance of this service under such an employment does not make the stockyards company a common carrier, Or its property used therein a railroad; and that this service is purely a local switching service, which follows or precedes transportation, and is not interstate commerce.
The discussion will be simplified, but not otherwise affected, if we put out of view the dead freight to and from the packing houses and cither industrial plants, and consider only the live freight to and from fhe sheds or pens.
It must be conceded that the stockyards company would not be a common carrier, nor the property used by it a railroad, if its operations were confined to maintaining the sheds or pens, to unloading shipments thereto, to loading shipments therefrom, and to feeding, watering, caring for, and otherwise handling live stock therein. But it's operations are not thus confined. On the contrary, they include the maintenance and use of railroad tracks and locomotives, the employtnent of a corps of operatives in that connection, and the carriage for hire over its tracks of all live stock destined to or from the sheds or pens, which, in effect, are the depot of the railroad companies for the delivery and receipt of shipments of live stock at South Omaha. The carriage of these shipments from the transfer track to the sheds or pens and vice versa is no less a part of their transit between their points of origin and destination than is their carriage over any other portion of the route. True, there is a temporary stoppage of the loaded cars at the transfer track, but that is merely incidental, and does not break the continuity of the transit any more than does the usual transfer of such cars from one carrier to another at a connecting point. And it is of little significance that the stockyards company does not hold itself out as ready or willing generally to carry live stock for the public, for all the railroad companies at South Omaha do so hold themselves out, and it stands ready and willing to conduct, and actually does conduct, for hire a part of the transportation of every live stock shipment which they accept for carriage to or from that point, including such shipments as are interstate. Moreover, the Supreme 'Court of Nebraska pronounces it a common carrier in the special line to which it devotes its energies, although not a common carrier for all purposes. State ex rel. v. Union Stockyards Co. (Neb.) 115 N. W. 627, 631. In these circumstances controlling decisions leave no room i’o doubt that it is a common carrier engaged in interstate commerce by railroad within the .meaning of the safety appliance law. United States v. Colorado & N. W. R. Co., 157 Fed. 321, 85 C. C. A. 27, 15 L. R. A. (N. S.) 167, petition for certiorari denied 209 U. S. 544, 28 Sup. Ct. 570, 52 L. Ed. 919; United States v. Colorado & N. W. R.
The judgment is accordingly affirmed.