18 F. 480 | M.D. Tenn. | 1883
.(charging jury.) This action is brought by the government, under sections 4386 et seq. of the Revised Statutes, to recover a penally of not less than §100, nor more than §500, for the failure of the defendant, as a carrier of live-stock, to comply with the requirements of said sections in the transportation of two cars of mules, shipped by J. M. Smitlier, January 25,1882, from Nashville to Vicksburg. The contract entered into between the shipper and the defendant has been read to you; and by its terms it appears that the defendant agreed for itself, and its connecting lines, to carry the animals from the point of shipment to their destination. Whether they have carried out that agreement — whether the shipper carried out his agreement to go along with the stock and feed and water them — does not concern us in this action. If the stock were damaged by a breach of the contract on the part of the defendant, it is a matter to be tried in an independent action by the shipper. He is no party to this suit. We are confined solely to the inquiry, has there been a violation oi the act of congress prohibiting railroads from confining animals in cars for a longer period than 28 consecutive hours without unloading them for at least five consecutive hours, and resting, feeding, and watering-them within that time? Section 4886 reads as follows:
“No railroad company within the United States, whose roads forms any part of a line of road over which cattle, sheep, swine, or other animals are*482 conveyed from one state to another, * * * shall confine the same in cars * * * for a longer period than 28 consecutive hours without unloading the same for rest, water, and feeding for a period of at least five consecutive hours, unless prevented from so unloadingby storm or other accidental causes. In estimating shelnconfinement the time during which the animals have been confined without such rest on connecting roads from which they are received shall be included, it being the intent of this section to prohibit their continuous confinement beyond the period of 28 hours, except upon contingencies hereinbefore stated.”
Section 4387 makes it tbe duty of tbe railroad company, if tbe owner fail to do so, to feed and water tbe animals when so unloaded. Section 4388 provides that “any company * * , * who knowingly and willingly fails to comply with tbe provisions of tbe two preceding sections, shall, for every such failure, be liable for and forfeit and pay a penalty of not less than $100 nor more than f500.”
The declaration charges tbe defendant with knowingly and willingly violating these statutes. It will be noticed that the horse or mule is not mentioned eo nomine in the act. Cattle and other quadrupeds used for food appear to be tbe primary objects of protection by congress from long confinement without food or water. We know, too, as a part of tbe history of the times which induced this legislation, that immense numbers of cattle were shipped over tbe long lines of railroads in tbe west to tbe eastern cities, deprived of food and water for days, and stopped at the stock-yards before being carried into the great cattle markets, like New York, and there gorged with food and water. Consequently these statutes were passed, not more from considerations of sympathy for tbe cattle than to protect the public from imposition and from unwholesome food. Tbe term “other animals” is also employed in the statute, which would include, of course, mules and horses.
You will also notice that it is only intended by this law to affect those companies whose roads form a part of a line of roads over which animals are conveyed, extending “from one state to another.” If the line lies wholly within the territorial limits of any state, then this would be a matter not given to congress by the constitution, this act of the national legislature would not apply, and we would have to look to state legislation for relief.
You will have to look to the proof and ascertain how long these animals were confined in the cars by the defendant after they were loaded; whether for a longer time than the period fixed by the statute which I have just read. It is conceded that defendant was the first carrier to receive the sto.ek after they were loaded on the ears. The chief difficulty is one of law. Is the defendant exonerated by proving that the statute was complied with while the stock was on its own road, of is it subject to this penalty if its connecting.lines violated this law ? The contention of the government is that the first carrier is liable for the penalty under this act, provided others in the chain of carriers violated the law after the stock had passed out of the
So the defendant will not be liable for this penalty, if you find that as many as 28 hours had not elapsed, after the mules were loaded, before they were delivered to its first connecting carrier. When and where this delivery was made you must decide from the proof. This ■would be so, no matter what the particular contract may have been in tbis case between the shipper and carrier. It could not add to or take from the act of congress. That act requires the shipper to feed and wrater them in the first instance; but if he fails, the carrier must do it for him, and the act gives him a lien upon the stock for his reimbursement. The first carrier, contracting for itself and its connecting lines, may be required to deliver the stock at its ultimate destination; and if it fail to comply with the contract, the shipper may hold him liable for any damages that may have accrued either upon its own road, or upon any of the several connecting roads, resulting from a failure to feed and water the stock. But that carrier alone would be liable for this penalty who had actual manual possession of them at the time the period expired which has been fixed by congress.
Verdict and judgment followed for the defendant.
