99 F.2d 635 (1st Cir. 1938), 3358, United States v. Boston & Maine R.R.

Docket Nº:3358.
Citation:99 F.2d 635
Case Date:November 12, 1938
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 635

99 F.2d 635 (1st Cir. 1938)




No. 3358.

United States Court of Appeals, First Circuit.

November 12, 1938

Page 636

C. Keefe Hurley, Asst. U.S. Atty., of Boston, Mass. (John A. Canavan, U.S. Atty., of Boston, Mass., on the brief), for appellant.

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

Before BINGHAM and WILSON, Circuit Judges, and PETERS, District Judge.

BINGHAM, Circuit Judge.

This is an action at law brought by the United States against the Boston & Maine Railroad in the District Court for Massachusetts to recover the penalty prescribed by Section 3 of the Act of June 29, 1906, Chap. 3594 (34 Stat. 607) due from the defendant for violation of Section 1 of the Act (Sections 71 and 73, Title 45, U.S.C., 45 U.S.C.A. §§ 71, 73). These sections read as follows:

'Sec. 1 (Section 71). * * * No railroad * * * whose road forms any part of a line over which cattle, sheep, swine, or other animals shall be conveyed from one State or Territory or the District of Columbia into or through another State or Territory * * * shall confine the same in cars * * * for a period longer than twenty-eight consecutive hours without unloading the same in a humane manner, into properly equipped pens for rest, water, and feeding, for a period of at least five consecutive hours, 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: Provided, That upon the written request of the owner or person in custody of that particular shipment, * * * the time on confinement may be extended to thirty-six hours.'

'Section 3 (Section 73). * * * Any railroad * * * who knowingly and willfully fails to comply with the provisions of the * * * preceding sections shall for every such failure be liable for and forfeit and pay an penalty of not less than $100 nor more than $500.'

The declaration charged a violation of Section 1 with respect to a carload of sheep-- 255 in number-- shipped from Detroit, Mich., to East Sommerville, Mass., which, after rest and feeding at East Buffalo, N.Y., were reloaded at 5:30 o'clock on the evening of December 8, 1932, and thereafter received by the defendant at Mechanicville, N.Y., at 4:45 in the afternoon of December 9, 1932; that the defendant conveyed the same over its road to Greenfield, Mass., where they were unloaded at 11 o'clock in the forenoon of December 10, 1932, without having been unloaded in the meantime; that the owner requested in writing that the time of confinement be extended to 36 hours; that the sheep were confined in the car for more than that length of time, to wit, for 41 hours and 30 minutes, without unloading from time they left East Buffalo, N.Y., on December 8, 1932. It was further alleged that the defendant did...

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