United States v. Boston & MRR

• Decision Date: 29 December 1939
• Docket Number: No. 7098.,7098.
• Citation: 30 F. Supp. 721
• Parties: UNITED STATES v. BOSTON & M. R. R.
• Court: U.S. District Court — District of Massachusetts

30 F. Supp. 721

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

No. 7098.

District Court, D. Massachusetts.

December 29, 1939.

Alfred G. Malagodi, Asst. U. S. Atty., and Edmund J. Brandon, U. S. Atty., both of Boston, Mass.

Richard W. Hall, of Boston, Mass., for Boston & M. R. R.

SWEENEY, District Judge.

This is an action to recover the penalty provided in Section 73 for failure to comply with Section 71 of 45 U.S.C.A. (34 Stat. 607) which in substance prohibits the retention of sheep in transit for more than 36 hours without unloading them for rest, water and feeding. The case was submitted upon a stipulation, and upon an oral agreement of other facts between counsel in open court, from which the following findings of fact are made:

On December 3, 1936, the defendant received the car involved from a connecting carrier at Mechanicville, New York. The animals at that time had been confined continuously for 22 hours without unloading for feeding, water and rest. The car left Mechanicville in the defendant's train at 8:27 P. M. on the same day. The statutory period was due to expire at 5:50 A. M. on December 4th. There was thus approximately 9½ hours of available running time. The average running time from Mechanicville to Boston is 8½ hours. The scheduled running time is 8 hours and 45 minutes. An inspection of the train before departure from Mechanicville disclosed it to be in good running condition.

No delays were encountered until the train reached Ayer, Massachusetts, where an inspection revealed that the brake beam on one of the cars was broken and down. There was a delay of 35 minutes repairing the beam. After the beam was repaired the engineer started the train to Boston. A conductor was standing on the ground waiting to swing onto the caboose as it passed him. When the caboose reached him the conductor could not get on it because of the speed of the train and the icy footing. There was no explanation why the conductor had not swung onto one of the cars which passed him before the caboose, and before the train had reached a speed that was unsafe for him to board it.

At some point beyond Ayer it was discovered that the conductor was not on the train, and the train was then stopped and backed up to pick him up. This resulted in a further delay of 40 minutes. The car arrived in Boston at 6:05 A. M. on December 4th, and was prepared for unloading at 6:30 A. M. The unloading was thus 40 minutes beyond the period allowed by the statute. The delay occasioned by the necessity of picking up the conductor does not come within the class of unavoidable causes which could not be anticipated or avoided by the exercise of due diligence and foresight. Either or both the conductor and the engineer were negligent in...