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56. Negligence of servant. — United
States V. Atlantic, etc., R. Co.. 98 C. C.
A. 110, 173 Fed. 764.

In an action against a railroad com-
pany, to recover the penalty for know-
ingly and willfully violating such act, it
is not a defense that such violation was
by reason of the "oversight, forgetful-
ness, and unintentional neglect" of its
train dispatchers, contrary to its rules
and orders. Montana Cent. R. Co. v.
United States, 164 Fed. 400.

57. United States v. Union Pac. R. Co.,
213 Fed. 332.

58. Preparation and facilities. — Illinois
Cent. R. Co. v. Curry, 106 S. W. 294, 32
Ky. L. Rep. 513; St. Louis, etc., R. Co.
V. Piburn, 120 Pac. 923, 30 Okla. 262.

The twenty-eight hour law (Act June
29, 1906, c. 3.594, 34 Stat. 607 [U. S. Comp.
St. Supp. 1909, p. 1178]) does not require
a carrier to maintain any particular kind
of equipment of its stock pens, perma-
nent or otherwise, except in so far as to
render them suitable for the humane pur-
pose of properly feeding, watering, and
resting the particular shipment of stock
unloaded into them. United States v. St.
Louis, etc., R. Co., 177 Fed. 205, 101 C.
C. A. 375.

59. Shipment through foreign country.
— Grand Trunk R. Co. v. United States,
191 Fed. 803.

Act June 29, 1906, c. 3594, 34 Stat. 607
(U. S. Comp. St. Supp. 1909, p. 1178),
prohibiting interstate carriers from con-
fining animals transported in interstate
commerce for more than twenty-eight or
thirty-six hours without unloading them
for feed, water, and rest, applies to sliip-
ments passing from one state through a
foreign country (Canada) to another



state. United States v. Lehigh Valley R.
Co., 184 Fed. 971, judgment affirmed in
187 Fed. 1006, 109 C. C. A. 211.

60. Shipment under agreement. — Atchi-
son, etc., R. Co. V. United States, 101 C.
C. A. 140, 178 Fed. 12.

A request for extension of time for
confinement of cattle, under Act June
29, 1906, c. 3594, 34 Stat. 607 (U. S.
Comp. St. Supp. 1909, p. 1178), may be
made, though not induced by any con-
tingency arising after transportation
commences. Missouri, etc., R. Co. v.
United States, 178 Fed. 15, 101 C. C. A.
143; Wabash R. Co. v. United States, 178
Fed. 5, 101 C. C. A. 133, 21 Am. &
Eng. Ann. Cas. 819.

The twenty-eight hour law (Act Cong.
June 29, 1906. c. 3594, 34 Stat. 607 [U. S.
Comp. St. Supp. 1907, c. 918]) provides
for the unloading of cattle, etc., for food,
water, and rest at the expiration of twen-
ty-eight consecutive hours' transporta-
tion, except that the time may be ex-
tended to thirty-six hours by the writ-
ten request of the shipper, except that it
shall not be required tliat sheep be un-
loaded in the nighttime: but where the
time expires in the night, in the case of
sheep, the same may be continued in
transit to a suitable place for unloading,
subject to the thirty-six hour limitation.
Held, that such provision was not fatally
defective for uncertainty; the meaning
l)eing that in case of sheep, if the twenty-
eight hour limit expires at night, the
transit may be continued to a suital)le
place for unloading, without the consent
of the owner or custodian, except that in
no case shall the thirty-six hour^ limit be
exceeded. Judgment, United States v.
Southern Pac. Co., 162 Fed. 412, affirmed
in 171 Fed. 360, 96 C. C. A. 252.



§§ 4008-4009



CARRIERS.



3624



between an interstate carrier and the owner of certain animals transported in
interstate commerce for the confinement of the animals for a period longer than
thirty-six hours is void.*^^

Form of Agreement. — An application for extension of time of confinement
of cattle, may be printed, engraved, or stamped, or partly printed or stamped
and partly in handwriting.*''-

Agreement Written on Waybill. — While a request for the continued con-
finement of cattle must be separate from any printed bill of lading or other rail-
road form, it is necessary that it he written on a virgin sheet, and is effective if
written at the bottom of a waybill and signed by the shipper. ^^

Separate Agreement for Each Shipment. — The shipper of cattle, to justify
their confinement longer than twenty-eight hours, must file a written request
for each shipment, and may not file a single general request applicable to all fu-
ture shipments of his cattle.^"*

By Whom Agreement Made. — A legal request for extension of time of
confinement of shipment of cattle may be made by the authorized agent of the
owner, or by the person in custody of the particular shipment.<55 There is a legal
presumption that one to whom an owner of animals has intrusted their posses-
sion for delivery to a railroad for shipment is authorized to make the request
and a railroad relying on this presumption can not be held to have knowingly vio-
lated the law by confining animals more than twenty-eight hours and less than
thirty-six without knowledge of any defect in the authority of the agent. ^*^

Agreement for Feeding by Shipper. — The railroad is not liable when it ap-
pears that there was a special contract that the shipper should feed and water
the live stock, and there is no specific evidence as to amount of the damage from
the failure to feed and water.^'^

§ 4009. Where Stock Confined by Another Carrier.— It is immaterial
that a part of the period of confinement elapses while the stock is in possession of
a connecting carrier; the carrier having possession of the stock being required to
unload, feed, and water them as soon as the time limit is reached.*'^ Where con-



61. Webster v. Union Pac. R. Co., 200
Fed. 597.

62. Form of agreement. — Atchison, etc.,
R. Co. V. United States, 178 Fed. 12, 101
C. C. A. 140; Missouri, etc., R. Co. v.
United States, 178 Fed. 15, 101 C. C. A.
143; Wabash R. Co. v. United States, 178
Fed. 5, 101 C. C. A. 133, 21 Am. & Eng.
Ann. Cas. 819.

A legal request for extension of time of
confinement of shipment of cattle, under
Act June 29, 1906, c. 3594, 34 Stat. 607 (U.
S. Comp. St. Supp. 1909, p. 1178), may be
made on a railroad form separate from a
bill of lading. Wabash R. Co. v. United
States, 178 Fed. 5, 101 C. C. A. 133, 21
Am. & Eng. Ann. Cas. 819.

63. Agreement written on waybill. — Mo-
bile, etc., R. Co. V. United States, 209
Fed. r,05.

64. Separate agreement for each ship-
ment. — United States v. Pere Marquette
R. Co., 171 Fed. 586.

65. By whom agreement made. — Atchi-
son, etc., R. Co. V. United States, 178 Fed.
V^, 101 C. C. A. 140; Wabash R. Co. v.
United States, 178 Fed. 5. 101 C. C. A.
133. 21 Am. & Eng. Ann. Cas. 819.

66. Wabash R.- Co. v. United States,
178 Fed. 5. 101 C. C. A. 133, 21 Am. &
Eng. Ann. Cas. 819.



67. Agreement for feeding by shipper.

— Missouri Pac. R. Co. v. Texas, etc., R.
Co., 41 Fed. 913.

The carrier is not liable, when it ap-
pears that it was agreed that plaintiff
should water and feed the cattle, and the
carrier was to stop for the purpose at a
particular place, and there is no evidence
that the carrier was requested to stop be-
fore reaching the place named. Missouri
Pac. R. Co. V. Texas, etc., R. Co., 41 Fed.
913.

68. Where stock confined by another
carrier. — United States v. Oregon, etc., R-
Co., 160 Fed. 526.

A railroad company, which receives
live stock from a connecting carrier after
it has already been continuously confined
in cars for more than twenty-eight hours
and allows several more hours to pass
before unloading the same, is prima facie
guilty of a violation of the statute.
United States v. New York, etc., R. Co.,
156 Fed. 249.

Under the twenty-eight hour law (Act
June 29, 1906, c. 3594, 34 Stat. 607 [U.
S. Comp. St. Supp. 1909. p. 1178]), pro-
hibiting interstate carriers in transporta-
tion of animals from retaining them in
the cars for a longer period than twenty-
eight or thirty-six hours without unload-



3625 interstate; commerce act. §§ 4009-4010

necting carriers are engaged in a continuous transportation of cattle in interstate
commerce, the fact that the initial carrier had kept the cattle confined without un-
loading for a period longer than that authorized by the act when they were deliv-
ered to defendant, the connecting carrier, did not authorize the latter to confine
the cattle for another period equal to the statutory time before it would be liable
for violating the act, since, while there is no violation of the act so long as the
carrier does not exceed the time fixed, yet, whenever the continuous carriage
without unloading does exceed it, then every carrier forming any part of an
interstate Ime over which the stock is being shipped that participates in such
carriage beyond the limit is guilty of an independent offense.''^

Fact Not Known to Defendant. — The defendant's railroad constituted a
part of a line of railroad over which live stock was transported under an inter-
state shipment to the defendant's stockyards. At the time the cattle were de-
livered to the defendant by the connecting carrier, they had all been kept in the
cars without being unloaded for rest, water, and feed for more than thirty-six
hours, which fact was disclosed by the waybills, which were not delivered to
the defendant until after the cattle were in the defendant's custody. The next
and only place where the cattle could have been unloaded and watered \yas at
defendant's yards at destination,, where defendant delivered the cattle with all
reasonable dispatch with the facilities it had for handling them. The defendant
had not knowingly and willfully failed to comply with the provisions of the act,
and was therefore not liable for a penalty for its violation.'^*'

Presumption. — Where defendant received horses from a connecting carrier,
Avhich had confined them for a period longer than permitted by the act and trans-
ported them to destination without unloading, it would be presumed that it did
so with knowledge of the connecting carrier's default, or in the absence of evi-
dence that it made reasonable inquiry and could not ascertain the fact.'''^

Liability of Terminal Company. — A terminal railroad company is not liable
for accepting from a connecting carrier cars of cattle which had already been
confined for a longer time than permitted by the statute, and moving them
with all reasonable dispatch to the nearest stockyards and there unloading them
for rest, feed, and water."^-

Where defendant carrier maintained only switching service and transported an-
imals that had already been confined by trunk line carriers longer than the statu-
tory period, to unloading chutes without unreasonable delay, it was not guilty
of knowingly and willfully confining the animals in violation of the twenty-eight-
hour law."^

§ 4010. Where Penalty Exacted from Another Carrier.— Initial Car-
rier. — It is no defense to a charge that a railroad company in transporting ani-
mals has confined them knowingly and willfully more than twenty-eight hours
without unloading them, that another carrier, i)articipating in the transportation
of the shi])ment, was also guilty of a violation of the statute and has paid the

ing them for food, water, and rest, where they have been confined on connecting

animals have been confined for the en- roads is to be included. United States v.

tire statutory period before being deliv- Lehigh Valley R. Co., 184 Fed. 971.

ered to a connecting carrier, it is not 69. United vStates v. Northern Pac.

necessary that a new period equal to the Terminal Co., 180 Fed. 947.

statutory time must again expire before 70. Fact not known to defendant.—

the connecting carrier can be held guilty United States v. Sioux City Stockyards

of violating the act; the liability being Co., ir,2 Fed. 5.5f,, judgment affirmed in

complete on the connecting carrier con- Kii Fed. I'^C).

tinning the transportation toward the 71. Presumption.— New York, etc., R.

destination except to transport them to Co. 7'. United States, 203 b'ed. 9.');}.

the yards at the junction point to un- 72. Liability of terminal company. — St.

load them, under the provision that, in Louis, etc., R. Co. v. United States, 209

estimating the confinement, tlie time con- P'ed. 600.

sumed in loading and unloading shall not 73. United States t'. Chicago Junction

be considered, but the time during which R. Co., 211 Fed. 724.



§§ 4010-4011 CARRIERS. 3626

penalty therefor."'* But it has been held where the initial carrier of live stock has
been subjected to the penalty for confining live stock longer than thereby per-
mitted without unloading for rest, water, and feeding, in a second action against a
connecting carrier to recover for the same confinement, the first twenty-eight
hours of the confinement, which was necessarily included in the period covered by
the judgment in the first action, can not be counted against the defendant.'^^

Subsequent Carrier. — A carrier that delivers a shipment of cattle to a con-
necting carrier in time according to the usual course of transportation for their
carriage to and unloading within the time limit at pens suitably equipped, either
at their destination or on the way. without notice that they must be delayed in
their arrival, beyond such time, does not violate the actJ'''

§ 4011. Excuses for Failure to Unload, etc. — The act prohibits confine-
ment of live stock in transit for more than twenty-eight hours, unless unloading
is prevented by storm or other accidental or unavoidable causes, which can not
be anticipated or avoided by the exercise of due diligence and foresight. The
act also imposes penalties recoverable by a civil action in the name of the United
States. Though the exception is contained in the enacting clause of such act cre-
ated a general offense, and not one limited to particular conditions : and hence a
complaint to recover penalties imposed was not defective for failure to negative
the exception.'''^

An "accidental or unavoidable cause which can not be anticipated or
avoided by the exercise of due diligence and foresight," and which will legally
excuse an interstate carrier of live stock for confining such stock in cars for a
period longer than twenty eight consecutive hours without unloading for rest,
water, and feeding, is one which can not be avoided by that degree of prudence,
foresight, care, and caution which the law requires of every one under the cir-
cumstances of the particular case, and as would have been exercised by a man
of ordinary prudence under such circumstances. An accident occurring to a
train through the negligence of the transportation company is not such a cause ;
nor is mere press of business, or the sidetracking of the train to allow for the
passing of other trains, the meeting or passing of which could have been antici-
pated when the transportation was begun, or the lack of facilities for unloading
or feeding.'^ A train load of cars of sheep started at 5 o'clock in the morning
to make a run which ordinarily requires eleven hours. This train and its draw-
bars were inspected and found in good condition on the morning it started. In
order to unload the sheep in time, it was necessary that this train should make
the run in twelve hours. It was delayed about two hours by the breaking of a
drawbar and chain of a train wdiich met and passed it, by the slipping of a knuckle
in the coupler which separated it into two parts and by the pulling out of two
drawbars in its cars which made it necessary to draw the two parts of the train
upon a side track and recouple them. Upon its arrival the company dragged the
sheep out of two of the cars in the dark within the thirty-six hours, but left
the others unloaded until the next morning after the expiration of tlie thirty-six

74. Where penalty exacted from another 78. United States v. Southern Pac. Co..
carrier. — United States z\ Wabash R. Co., 157 Fed. 4.59. See, also, Chicago, etc., R.
182 Fed. 802; United States v. Northern Co. v. United States, 194 Fed. 342.

Pac. Terminal Co., 181 Fed. 879; New An accident to a railroad train through

York, etc., R. Co. v. United States, 203 negligence does not excuse noncompli-

Fed. 953. ance with Rev. St., §§ 4386-4388, forbid-

75. United States r. Stockyards Termi- ding interstate carriers of animals to con-
nal Co., 172 Fed. 452. fine them more than twenty-eight consec-

76. Subsequent carrier. — Missouri, etc., utive hours without unloading for rest,
R. Co. 7'. United States, 101 C. C. A. 143, water, and feeding, unless prevented "by
178 Fed. 15. storm or other accidental causes." New-

77. Excuses for failure to unload, etc. — port News, etc., Co. v. United States, 61
United States v. Oregon, etc., R. Co., 160 Fed. 488, 9 C. C. A. 579.

Fed. 526.



3627 INTERSTATE COMME^RCU ACT. §§ 4011-4012

hourb. These facts afiford no substantial evidence that the company willfully vio-
lated the law, but they do afford substantial evidence that it was prevented from
unloading the sheep within the time by accidental or unavoidable causes which
could not be anticipated or avoided by the exercise of due diligence and fore-
sight J''

The measure of "due diligence and foresight" is that diligence and fore-
sight 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 incidental or unavoidable causes specified
in the act is that degree of diligence and foresight which reasonably prudent and
careful men ordinarily exercise under like circumstances.'"'

Rush of Business. — A great unusual press of business does not, unex-
plained and of itself, excuse the confinement of live stock by a railroad company
beyond time limited by the act, nor constitute a defense to an action to recover
the penalty for its violation. •''i

Act of Person Accompanying Stock.— Where stock is transported in charge
of a caretaker, the fact that, on the car being spotted at the carrier's stockyards
for unloading for rest, the caretaker agreed to notify the consignee to unload the
stock, did not relieve the carrier from using due diligence and foresight to see
that the stock was unloaded within the time prescribed. ^-

Stock Refused by Another Carrier.— Where the defendant, an initial car-
rier of certain stock, tendered the same to its connecting carrier when iiine hours
of the statutory confinement period remained, and the connecting carrier refused
to receive the stock, because it would probably be rejected by its next connecting
carrier, the defendant's subsequent transportation to its own stockyards for un-
loading after the time expired did not constitute a willful and knowing confine-
ment of the stock. '^•^

Burden of Proof.— The burden is not on the government to show that the
carrier was not prevented by storm or other accidental or unavoidable cause,
which it could not have anticipated by the exercise of diligence and foresight,
within the exception from liability created by such act, complaint contains the
necessary allegation that the carrier acted "willfully" such allegation in itself is
sufficient to negative the exception. '"^^

§ 4012. Cars Provided for Food, Water and Rest.— To bring a case within
the proviso which exempts a carrier of live stock from compliance with the re-
quirements of unloading the same at least once in twenty-eight hours for rest,
water, and feeding when the animals are carried in cars in which they can and
do have proper food, water, space and opportunity to rest, the cars must not
only be properly equipped for such purposes, but it is incumbent on the carrier
to see that the animals do have proper and sufficient quantity of food and water
supplied where they can reach it, and they are not so overcrowded but that they
have sufficient space for all to lie down at the same time.^"' Unless cars provided

79. Chicago, etc., R. Co. v. United will relieve the carrier from liability for
States, 194 Fed. .342. a violation of such act. United States v.

80. Chicago, ' etc., R. Co. v. United Atchison, etc., R. Co., inr, Fed. ICO.
States, 194 Fed. 342. 82. Act of person accompanying stock.

81. Rush of business.— United States v. — Oregon-Washington R., etc., Co. ^ v.
Union I'ac R. Co., 94 C. C. A. 4:5:5, H19 United States, 123 C. C. A. 471, 205 Ted.
Fed. (;r,. 337.

Failure of a railroad company to pro- 83. Stock refused by another carrier.—

vide unloading stations, congested traffic United States 7'. Chicago, etc., R. Co., 211

conditions reasonaI)ly to l)e anticipated Fed. 77().

from past experience, and breakdowns en 84. Burden of proof.— United States v.

route resulting from negligent f)peration Oregon, etc., R. Co., TOO Fed. 520.

or f. mission to furnish properly equipped 85. Cars provided for food, water and

and inspected engines and cars are not rest.— (Act June 29, 190r), c. 3594, 34 Stat,

such accidental or unavoidable causes as G08 | U. S. Comp. St. Supp. 1909, p. 1179]);



^ 4012 CARRIERS. 3628

for the carriage of cattle afford sufficient space for all to lie down at the same
time, they are not sufficient to exempt the carrier from unloading for rest, water,
and feeding.'^'^

Where Stock Not Watered. — Where cattle were transported in patent cattle
cars, equipped with troughs affording an opportunity to water them without un-
loading, but the cattle were kept in the cars for a period longer than that author-
ized by statute, without water being introduced in the troughs for at lease a part
of the cattle, the carrier is liable for the penalty provided by the act.*^'^

Where Stock May Lie Down at Different Times. — Where cars provided for
the transportation of cattle were sufficiently large to enable all the cattle to lie
down at different times, but not sufficient to permit all of them to lie down at the
same time, they w^ere not sufficient to exempt the carrier from the duty to unload
for rest.^^

Where Stock in Charge of Owner. — A carrier, in order to bring itself within
the exception, must not only show that the animals can have the supplies specified,
but that they are in fact afforded proper food, water, space, and opportunity to
rest, so that where animals were in charge of the shipper, and were retained in
the cars for a longer period than twenty-eight hours without proper food, water,
and an opportunity to rest, it was no answer to the carrier's liability that the
shipper could have provided proper attention, and, on being inquired of en route
as to how he was faring, stated that he was "all right," and that he could feed and
water his stock. ^^

Stockyards on Fire. — The failure of a railroad company to comply with the
statute and wdth its contract of shipment, wherein it agreed to furnish the owner
with reasonable facilities for taking care of the horses, is not excused by the fact
that its stockyards at one of its intermediate stations were on fire when the train
arrived there, so as to relieve it from liability for injury to the horses caused by
such failure. ''^"

Condition of Stock When Accepted. — Under the statute allowing the re-
covery of a penalty from a carrier for a failure to properly care for stock in ship-
ment, a carrier has the right to act on the presumption that stock is in proper con-
dition when tendered for shipment, and is not required to water or feed oftener
than would be done by an ordinarily prudent man with his own stock.^^

United States v. New York, etc., R. Co., States v. New York, etc., R. Co., 186 Fed.

191 Fed. 938. . 541.

If the stock is transported in cars which gS. Where stock may lie down at differ-
are not properly constructed for feeding ent times. — "It seems to us that it is the
and watering the stock, then it becomes object of the statute to secure to every
the duty of the carrier to furnish places animal in the shipment proper space and
where the stock may be unloaded, wa- opportunity to rest. Not only is cruelty
tered, and fed, without injury, in any kind to a single one 'cruelty to animals,' but
of weather. International, etc., R. Co. v. the landing of a single one in a condition
McRae, 82 Tex. 614, 18 S. W. 672, 27 Am. bad for slaughtering exposes the persons
St. Rep. 926. who may eat the meat from that one ear-
That the two cars, in which 43 horses ^^ss to a risk which might not exist if
were shipped, were two feet longer than this statute were strictly conformed to.

■ ordinary cars, with racks and troughs in Every animal in this shipment might have
which to feed and water, is insufficient proper opportunity to rest if they all
to show that the cars were such that the agreed to take turns in occupying space."



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 99 of 214)