Boston & MRR v. United States, 3366.

• Decision Date: 12 November 1938
• Docket Number: No. 3366.,3366.
• Citation: 99 F.2d 646
• Parties: BOSTON & M. R. R. v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

99 F.2d 646 (1938)

BOSTON & M. R. R. v. UNITED STATES.

No. 3366.

Circuit Court of Appeals, First Circuit.

November 12, 1938.

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

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

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 the Act (Sections 71 and 73, Title 45 U.S.C., 45 U.S.C. A. §§ 71, 73).

The declaration charged a violation of Section 1 of the above Act with respect to a carload of sheep, 250 in number, shipped from Detroit, Mich., to East Somerville, Mass., which, after resting and feeding at East Buffalo, N. Y., were there reloaded at 5:25 o'clock on the evening of December 9, 1932, and received by the defendant at Mechanicville, N. Y., without unloading, at 5:20 p.m. December 10, 1932; that the defendant conveyed the same over its road to Greenfield, Mass., where they were unloaded at 9 o'clock a.m. December 11, 1932, without having been unloaded in the meantime; that the owner had requested in writing that the time of confinement be extended to 36 hours; that the sheep were confined in the car for over that time, to wit, for 39 hours and 35 minutes without unloading, from the time they were reloaded at East Buffalo, N. Y., at 5:25 p.m. December 9, 1932. It was further alleged that the defendant did knowingly and wilfully confine the sheep for over 36 hours; and that the defendant was not prevented by storm or other accidental or unavoidable cause which could not be anticipated or avoided by the exercise of due diligence and foresight.

The defendant in its answer denied each and every allegation in the plaintiff's declaration.

Trial by jury having been duly waived, the case was tried before the court on October 7, 1937, on an agreed statement of facts, and, at the conclusion of the evidence on that day, the defendant filed requests for rulings of law and a motion for judgment in its favor. The main request for rulings of law was that in order to find the defendant liable the plaintiff must show that the failure to unload the sheep was knowingly and wilfully done.

The court found the essential facts from the agreed statement as follows: That on December 10, 1932, at 5:20 p.m. the defendant received from another carrier at Mechanicville, N. Y., a consignment of 250 sheep confined in a double deck freight...