Webster v. Union Pac. R.
200 F. 597
D. Colo.
1912
Check Treatment
POPE, District Judge.

This cause has been submitted to the court upon a demurrer to the several defenses set up in defendant’s answer to the second amended complaint. Upon the hearing the second’ defense was by agreement amended by interlineation, and the demurrer *599thereto announced abandoned. Likewise, upon the hearing, the demurrer to the seventh defense was announced abandoned. This leaves for consideration only the demurrer to the third, fourth, fifth, sixth, eighth, and ninth defenses to each of the two causes of action. The questions involved as to each cause of action being the same, the following conclusions appE to the answer to each cause of action. The conclusions of the court are as follows:

[1] 1. The third defense sets up a reduced freight rate, in consideration of which it is alleged that there was an agreed valuation of the animals shipped not exceeding $3 per head. Whatever may be the proofs on the trial, the allegations of the answer bring the case within Hart v. Railroad, 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717. See full discussion in 1 Hutchinson on Carriers (3d Ed.) §§ 425-430; also Railway v. Rodgers, 16 N. M. 120, 113 Pac. 805, and “In the Matter of Released Rate,” 13 Inierst. Com. R. 551. The cases last cited contain a full citation of authorities pro and con, showing the distinction between an arbitrary and inadequate valuation and an agreed valuation based upon a cheaper rate of transportation.

[2] 2. The fourth defense sets up a special reduced rate of freight and a special contract of carriage, whereby the plaintiff shipper was to load, unload, reload, feed, water, tend, a^d care for the sheep at liis own expense and risk during the entire transportation, and further alleges that any injuries suffered by the sheep were due to the carelessness of the plaintiff in and about such matters, and notwithstanding that proper facilities were provided by the defendant. It is not perceived why such agreement would not be valid as between the shipper and the railr.oad company. Its terms do not contravene the provisions of Act june 29, 1906, c. 3594, 34 Stat. 607 (U. S. Comp. St. Supp. 1911, p. 1341), known as the “Twenty-Eight Hour Law,” since that act in terms provides that the owner of the animals shall primarily be charged with feeding and watering them. While such a provision would not afford any defense to a prosecution by the government for failure of the railroad company, upon the owner’s default, it is, as between the owner and the railroad, a sufficient defense, since it is tantamount to an allegation that the railroad company was not itself negligent, but that the negligence was that of the owner of the animals in and about a matter as to which such owner had contracted to assume the sole responsibility. Mo. Pac. Ry. Co. v. Tex. & Pac. Ry. Co. (C. C.) 41 Fed. 913.

[3] 3. The fifth defense is subject to demurrer, for the reason that it sets up certain matters bearing on the condition of the facilities afforded by the railroad for unloading, eta, when the complaint does not proceed upon any failure of the defendant in these respects as a ground of recovery.

[41 4. The sixth defense is that the shipment was at a special reduced rate of freight and under a special contract of carriage, whereby defendant was not to be liable for damage by causes beyond its control, shrinkage in weight, changes in weather, heat, cold, or other causes not a result of defendant’s negligence, and in which defense it is *600alleged that any loss and damage was due to these causes, and was not directly or indirectly the result of defendant’s negligence. This defense is good against demurrer, under Hart v. Railroad Co., supra, and because it is in effect a denial of the acts of negligence alleged against defendant as a basis of recovery.

■ [5] 5. The eighth defense sets up that the injuries, if any, were due “to the inherent nature, propensities, habits, disposition, and condition of said sheep, and not to the negligence of the defendant, or its agents or servants.” This defense is good, being in effect an allegation that the injuries resulted from causes other than defendant’s alleged negligence.

[8] 6. The ninth defense is that plaintiff “specially requested the defendant to confine, and agreed and consented to the confinement of, the shipment of sheep in the cars for a period described in the complaint, and waived all loss and damage, if any, resulting in whole or in part from such confinement.” The demurrer to this defense must be sustained, for the reason that it sets up an agreement between the parties contrary to the provisions of the Twenty-Right Hour Taw. That law positively prohibits the confinement of animals for a period longer than 28 consecutive'hours, save only that by special agreement and written request of the owner the time of confinement may be extended to 36 hours. The extreme limit, therefore, to which the wishes of the owner became relevant, is 36 hours. An agreement, therefore, for a confinement beyond that time, is a contract to do that which the law says may not be done, and is void and nonenforceable as a defense to the action.