United States v. Chicago, B. & Q. R. , 184 F. 984 ( 1910 )

THOMAS C. HUNGER, District Judge.

This is a suit to recover a penalty for failure to comply with the provisions of section 3 of the act of Congress approved June 29, 1906, known as the “28-hour law.” Act June 29, 1906, c. 3594, 34 Stat. 607 (U. S. Comp. St. Supp. 1909, p. 1178).

The defendant received for shipment a freight car, of the ordinary box car type, containing household goods, farm implements, and some horses, cows, and hogs belonging to one shipper. The consignor signed what is known as a “live stock contract,” which permitted the shipper to ride on the train with the stock in order to care for them. As a part of such contract the shipper agreed that the animals were in his sole charge, during the shipment, for the purpose of attention and care of the animals, and that they were to be watered and fed by him. While admitting that the animals were confined in the cars for more than 28 consecutive hours without unloading for rest, water, and feeding, the defendant contends that it is not liable to a penalty because it is within the terms of the proviso in section 3 of the act of Congress, reading:

“Provide.fi, that when animals are carried in cars, boats, or other vessels in which they can and do have proper food, water, space, and opportunity to rest, the provisions in regard to their being unloaded shall not apply.”

The evidence shows that- the animals did not have proper food and water during the period of shipment. Those in charge of the train asked the shipper how he was faring, and he answered that-he was “all right,” and that he could feed and water his stock. No efforts, other than these inquiries, were made by the defendant’s employes to ascertain whether the animals had food and water.

The defendant has not brought itself within the terms of the exception contained in section 3 of the act of Congress. Unless the animals “can and do have proper food, water, space and opportunity to rest.” the provisions in regard to tlieir being unloaded apply.

It is not enough to show that the animals “can” have such supplies, as, for instance, that the one in charge may procure water and food at the stations where stops are made; but it must be shown that the animals “do” have proper food, water, space, and opportunity to rest in the cars, boats, or other vessels where carried.

As this is not shown in this case, a verdict will be directed against the defendant.