99 F.2d 646 (1st Cir. 1938), 3366, Boston & M.R.R. v. United States

Docket Nº:3366.
Citation:99 F.2d 646
Case Date:November 12, 1938
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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99 F.2d 646 (1st Cir. 1938)




No. 3366.

United States 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, 1032; 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,

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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 writ, from 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 of other accidental or unavoidable cause which could not be anticipated or avoided by the exercise of the 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...

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