7 F. 190 | U.S. Cir. Ct. | 1881
These suits were brought by the United States to recover statutory penalties Cor carrying refined petroleum as freight on passenger vessels, in violation of section 4472, Eev. St.,—in one case from Cincinnati to Memphis, and in the other from Marietta to Cincinnati. It is alleged in each case that there was another practicable mode of transportation, which, being denied, constitutes the sole issue.
The testimony before the district court, as disclosed by the bills of exception, was to the effect that there was an all-rail route over which the petroleum could have been carried in each case, but that the rate of charge was so high that in one case (Marietta to Cincinnati) it would consumo the profit on the sale, and in the other case (Cincinnati to Memphis) it would destroy the trade between those points. The district judge was requested by the plaintiff to charge the jury that if they found from the evidence there was an all-rail route between the places in question that would constitute a practicable mode of transportation, within the meaning of section 4472, without regard to cost or distance. This charge was refused, and exception taken. The jury was then charged, in one case, that if the rate of freight charged by the railroad company would consume the profit upon the sale at the point of destination, it would not be a practicable mode of transportation between those places; and, in the other case, that it would not be practicable if the rate was so high as to destroy the trade between those places. To these charges exceptions were also taken by the plaintiff. The judgment of the district court was in favor of the defendant in each case, and writs of error are prosecuted from this court
The judgment of the district court in each case is affirmed.