117 F.2d 428 (1st Cir. 1941), 3588, Boston & M.R.R. v. United States

Docket Nº:3588.
Citation:117 F.2d 428
Case Date:February 04, 1941
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 428

117 F.2d 428 (1st Cir. 1941)




No. 3588.

United States Court of Appeals, First Circuit.

February 4, 1941

Page 429

         Richard W. Hall, of Boston, Mass., for appellant.

         Alfred G. Malagodi, Asst. U.S. Atty., of Boston, Mass. (Edmund J. Brandon, U.S. Atty., of Boston, Mass., on the brief), for appellee.

         Before MAGRUDER and MAHONEY, Circuit Judges, and FORD, District Judge.

         MAGRUDER, Circuit Judge.

         Boston & Maine Railroad appeals from a judgment of the District Court, 30 F.Supp. 721, assessing a statutory penalty against it for violation of the Cruelty to Animals Act, 34 Stat. 607, 45 U.S.C.A. §§ 71-74. This Act forbids carriers to confine animals in cars for a continuous period in excess of 36 hours without unloading the same into properly equipped pens for rest, water and feeding, 'unless prevented by storm or by other accidental or unavoidable causes which can not be anticipated or avoided by the exercise of due diligence and foresight. ' Any railroad which 'knowingly and willfully fails to comply' with this requirement is subject to a penalty of not less than $100 nor more than $500. Material parts of the statute are copied in the footnote. 1

         Trial by jury was waived. The facts as agreed upon between the parties and as found by the court are as follows:

         'On December 3, 1936 the defendant received a carload of sheep at Mechanicville, N.Y. for transportation to Somerville or

Page 430

Boston, Mass. The animals at that time had been confined continuously for 22 hours without unloading for feeding, water, and rest. The car left Mechanicville in the defendant's train at 8:27 p.m. on December 3, 1936. The statutory period was due to expire at 5:50 a.m. on December 4. 2 There was therefore approximately 9 1/2 hours of available running time to make the run to Boston. The average running time from Mechanicville to Boston is 8 1/2 hours and the scheduled running time is 8 hours and 45 minutes. An inspection of the train before departure from Mechanicville disclosed it to be in good running condition. No delays were encountered until the train reached Ayer, Massachusetts, where an inspection revealed that the brakebeam on one of the cars in the train was broken and down; there was a delay of 35 minutes repairing the brakebeam. After the brakebeam was repaired, the engineer started the train to Boston. A conductor was standing on the ground waiting to swing onto the caboose as it passed him. When the caboose reached him the conductor could not get on it, because of the speed of the train and the icy footing. Consequently, the train passed the conductor leaving him on the ground. At some point beyond Ayer, it was discovered that the conductor was not on the train and the train was then stopped and backed up to pick him up. This resulted in a further delay of 40 minutes. The car arrived in Boston at 6:05 a.m. on December 4th and was placed for unloading at 6:30 a.m., 40 minutes beyond the period allowed by the Statute.

         All the defendant's requests for specific rulings of law were granted by the court. The error charged is that the court below denied defendant's motion for judgment, and ruled, upon the contrary, that the carrier had 'knowingly and willfully' failed to comply with the statute, thereby entitling the United States to judgment for the penalty.

         It may be conceded that the delay for the time necessarily consumed in repairing the brakebeam was, in the language of the statute, one of those 'accidental or unavoidable causes which cannot be anticipated or avoided by the exercise of due diligence and forewisht '. Chicago B. & Q.R. Co. v. United States, 8 Cir., 194 F. 342; United States v. Boston & Maine R.R., 1 Cir., 99 F.2d 635. However, this would be no excuse for failure to unload the cattle within the 36-hour period unless such delay prevented the train from reaching Boston in time to comply with the statute. But despite the loss of 35 minutes repairing the brakebeam, it appears that the train could still have arrived in Boston in time enough, had not the subsequent additional delay of 40 minutes occurred due to the return trip to Ayer to pick up the conductor. As it was, the car was placed for unloading in the yards at Boston 40 minutes beyond the statutory period, which was exactly the amount of delay that had been occasioned by going back for the conductor. Since (as provided in Section 1) the time consumed in the actual operation of unloading is not counted in computing the 36-hour period, United States v. Northern Pac. Terminal Co., C.C., 186 F. 947, 949, it thus appears that the railroad would have just got in under the...

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