Oregon-Washington R. & Nav. Co. v. United States

• Decision Date: 21 May 1913
• Docket Number: 2,237.
• Citation: 205 F. 337
• Parties: OREGON-WASHINGTON R. & NAV. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

205 F. 337

OREGON-WASHINGTON R. & NAV. CO. v. UNITED STATES.

No. 2,237.

United States Court of Appeals, Ninth Circuit.

May 21, 1913

A. C Spencer, of Portland, Or., and Hamblen & Gilbert, of Spokane Wash., for plaintiff in error.

C. H Lingenfelter, U.S. Atty., of Boise, Idaho.

Before GILBERT and MORROW, Circuit Judges, and WOLVERTON, District judge.

WOLVERTON District Judge.

This is an action by the government against the Oregon-Washington Railroad & Navigation Company, under the 28-hour law, to recover a penalty for confining a consignment of hogs in a car while in transit for more than 36 hours without unloading in a humane manner. The only question presented for determination arises upon a motion made at the close of plaintiff's testimony for a nonsuit, and another at the close of all the testimony for a directed verdict in favor of the defendant.

The hogs were consigned by John Daubert, as shipper, to Mahoney Bros., Wallace, Idaho. Mahoney Bros. had stockyards of their own, situated from a mile to two miles from the yards of the defendant, but on a branch line of the Northern Pacific Railway Company, so that at Wallace the Oregon-Washington Railroad & Navigation Company delivered stock consigned to Mahoney Bros. to the Northern Pacific Railway Company, and that company delivered to the consignees at their yards.

The testimony adduced by the plaintiff tended to show that the hogs were loaded at Endicott at 11:30 a.m., and arrived at Wallace the next day at about 8 p.m.; that they were not then unloaded, but remained in the car until the following morning, when they were unloaded at the Mahoney Bros.' yards at 8 o'clock having on that morning been transferred to the Northern Pacific Railway Company for delivery at the stockyards of Mahoney Bros. John Daubert, who accompanied the hogs as caretaker, testified that on the arrival of the car in Wallace he left it, and notified Mr Mahoney of its arrival, and was told by him that he would take care of it, and witness did not subsequently know what was done with the hogs. He further testified that he told the conductor on the train to spot the car in the stockyards, and the conductor gave his word that he would do so. Mahoney was further advised that he (witness) had signed a 36-hour release, and that the time for unloading the hogs would expire about 9 o'clock that evening, and Daubert relied upon Mahoney Bros.' statement that they would look after the shipment. There was further testimony showing that, after the car reached Wallace, it was spotted at the defendant's stockyards, and was seen standing in the same position the next morning, at about 6 o'clock, without having been unloaded. The car was delivered to Mahoney Bros. about 7:40, and unloaded at 8.

The government having rested its case, the defendant introduced evidence tending to show that the conductor while en route told Daubert that immediately upon the arrival of the car at Wallace it would be spotted, and asked him whether he would unload the stock, but that Daubert told him he would be done with it upon its arrival at Wallace, but would find Mahoney Bros. and see that they attended to it, and that the first thing the conductor did after the arrival of the train was to put the car at the track pen so that it could be unloaded. The conductor saw the car again about 10 o'clock at night, and it was still standing where he spotted it. He further explained that they did not unload the stock at the time, because Daubert was in charge of it and said he was going to notify Mahoney to unload it. The conductor knew furthermore that Daubert abandoned the car, and that unless some one arrived there that night the stock would remain loaded until the next morning. The station agent knew when the car arrived in the evening, and testified:

'Our closing hours are 6 o'clock, but I waited around until the conductor of 94-- I waited for him to come to the depot, after he arrived at the lower yards, to ascertain whether or not any effort had been made to take care of the shipment, for the express purpose of keeping away from violating the 36-hour law, and when he arrived I asked him about it. He told me that the car of stock had a man in charge, Mr. John Daubert,

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