Webster v. Union Pac. R. Co.

• Citation: 200 F. 597
• Decision Date: 17 September 1912
• Docket Number: 5,772.
• Parties: WEBSTER v. UNION PAC. R. CO.
• Court: U.S. District Court — District of Colorado

200 F. 597

WEBSTER v. UNION PAC. R. CO.

No. 5,772.

United States District Court, D. Colorado.

September 17, 1912

T. J Leftwich, of Ft. Collins, Colo., for plaintiff.

Hughes & Dorsey and E. I. Thayer, all of Denver, Colo., for defendant.

POPE District Judge.

This cause has been submitted to the court upon a demurrer to the several defenses set up in defendant's answer to the second amended complaint. Upon the hearing the second defense was by agreement amended by interlineation, and the demurrer thereto announced abandoned. Likewise, upon the hearing, the demurrer to the seventh defense was announced abandoned. This leaves for consideration only the demurrer to the third fourth, fifth, sixth, eighth, and ninth defenses to each of the two causes of action. The questions involved as to each cause of action being the same, the following conclusions apply to the answer to each cause of action. The conclusions of the court are as follows:

1. The third defense sets up a reduced freight rate, in consideration of which it is alleged that there was an agreed valuation of the animals shipped not exceeding $3 per head. Whatever may be the proofs on the trial, the allegations of the answer bring the case within Hart v. Railroad, 112 U.S. 331, 5 Sup.Ct. 151, 28 L.Ed. 717. See full discussion in 1 Hutchinson on Carriers (3d Ed.) Secs 425-430; also Railway v. Rodgers, 16 N.M. 120, 113 P. 805, and 'In the Matter of Released Rate,' 13 Interst.Com.R. 551. The cases last cited contain a full citation of authorities pro and con, showing the distinction between an arbitrary and inadequate valuation and an agreed valuation based upon a cheaper rate of transportation.

2. The fourth defense sets up a special reduced rate of freight and a special contract of carriage, whereby the plaintiff shipper was to load, unload, reload, feed, water, tend, and care for the sheep at his own expense and risk during the entire transportation, and further alleges that any injuries suffered by the sheep were due to the carelessness of the plaintiff in and about such matters, and notwithstanding that proper facilities were provided by the defendant. It is not perceived why such agreement would not be valid as between the shipper and the railroad company. Its terms do not contravene the provisions of Act June 29, 1906, c. 3594, 34 Stat. 607 (U.S. Comp. St. Supp. 1911, p. 1341), known as the 'Twenty-Eight Hour Law,' since that act in terms provides that the owner of the animals shall primarily be charged with feeding and watering them. While such a provision would not afford any defense to a prosecution by the government for failure of the railroad company, upon the owner's default, it is, as between the owner and the railroad, a sufficient defense, since...