Chicago, B. & Q.R. Co. v. United States

• Decision Date: 28 February 1912
• Docket Number: 3,637.
• Citation: 194 F. 342
• Parties: CHICAGO, B. & Q.R. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

194 F. 342

CHICAGO, B. & Q.R. CO. v. UNITED STATES.

No. 3,637.

United States Court of Appeals, Eighth Circuit.

February 28, 1912

Syllabus by the Court

Arthur R. Wells (James E. Kelby, on the brief), for plaintiff in error.

F. S Howell, U.S. Atty.

Before SANBORN and CARLAND, Circuit Judges.

SANBORN Circuit Judge.

In an action against the railroad company under the 28-hour law Act June 29, 1906, c. 3594, 34 Stat. 607 (U.S. Comp. Stat. Supp. 1907, p. 918; Supp. 1909, p. 1178), in which the defenses were that the company did not knowingly and willfully violate the law and that it was prevented from complying with it by accidental or unavoidable causes which could not be anticipated or avoided by the exercise of due diligence and foresight, the court below instructed the jury to return a verdict for the plaintiff, and this ruling is specified as error.

Section 1 of the Act of June 29, 1906, provides that no railroad company engaged in the interstate transportation of sheep and other like animals shall confine them in cars more than 28 hours, without a request from the owner or person in custody, and then not more than 36 hours, 'unless prevented by storm or by other accidental or unavoidable causes which cannot be anticipated or avoided by the exercise of due diligence and foresight. ' And section 3 declares:

'That any railroad company which knowingly and willfully fails to obey this prohibition shall pay a penalty of not less than $100.00 nor more than $500.00.'

The measure of 'due diligence and foresight' is that diligence and foresight which persons of ordinary prudence and care commonly exercise under similar circumstances. And the due diligence and foresight which condition the anticipation and avoidance of the other accidental or unavoidable causes described in this law is that degree of diligence and foresight which reasonably prudent and careful men ordinarily exercise under similar circumstances. An 'accidental or unavoidable cause' which cannot be avoided by the exercise of due diligence and foresight within the meaning of this law is a cause which reasonably prudent and cautious men under like circumstances do not and would not ordinarily anticipate and whose effects under similar circumstances they do not and would not ordinarily avoid. The Olympia, 61 F. 120, 127, 9 C.C.A. 393; United States v. Kansas City Southern Ry. Co. (D.C.) 189 F. 471, 477; Southern Pacific Company v. Hetzer, 135 F. 272, 281, 283, 284, 68 C.C.A. 26, 35, 37, 38, 1 L.R.A. (N.S.) 288; Chicago Great Western Ry. Co. v. Egan, 159 F. 40, 45, 86 C.C.A. 230, 235.

The shipment consisted of 17 double-decked cars of sheep. They had been confined in the cars about 18 hours when, at 5 in the morning on August 7, 1909, they started from Alliance for Aurora, which was 220 miles distant. The time ordinarily required for a freight train to make this run was 11 hours and if it followed the usual course it would arrive by 6 or 7 in the afternoon. There were feeding pens where these sheep could be unloaded, fed, and rested at Alliance and at Aurora, but none properly equipped for the feeding and resting of this shipment between these stations and as sheep cannot be unloaded with facility on dark nights it was necessary, in order to prevent their confinement beyond the 36 hours during which the owner had requested their confinement, that they should arrive in Aurora by 7 in the afternoon, for it became dark about 8:30 or 9 p.m., and an hour and a half or two hours were required to unload them. This train was unavoidably delayed about two hours by this series of accidents. It was running east and was scheduled to pass freight No. 1918, which was coming west, at Birdsell. Train No. 1918 broke a drawbar at a station east of Birdsell, and when it had been chained ...