and the New Jersey shore was 450 feet; and between the side of the scow next to the dredge and receiving the dredged material and the shore it was 415 feet. The contract between the Dredging Company and the government expressly requires the contractor to conduct the work in such a manner as to obstruct navigation as little as possible, and in case the contractor's plant so obstructs the channel as to impede the passage of vessels, it must promptly be so moved as to afford a practicable passage on the approach of any vessel.

It is impossible to have a dredge in the Arthur Kill without to a certain extent obstructing the channel. We cannot, however, hold that the channel was so obstructed in this instance as to impede the passage of this tow. All that the contract and the law requires is that there should be afforded a practicable passage for the tow. A 400-foot channel for a 75-foot tow is certainly no such obstruction as would render the dredge liable on the ground that it obstructed navigation within the meaning of the law. The injury which occurred could not have happened if those in charge of the tow had not approached so near the dredge. But, even as it was, the accident would not have happened if it had not been for an order that was given to which reference is hereinafter made. It is perfectly evident to us that those in charge of the tow, not only had the necessary channel, but that they were well aware that there was no necessity for withdrawing the dredge, and that they did not ask to have it withdrawn.

The government inspector was on the upper deck of the dredge when the accident occurred and saw the collision. He testified that all the lights were showing on the dredge and that on the approach of the tow he heard no danger blasts. This was confirmatory of the master of the dredge who heard no alarm from the tug.

The reason for this collision is not involved in the slightest uncertainty. That reason was the premature throwing off of the lines between the Wayne and the Senator Rice while the flotilla was passing the dredge. The Senator Rice was the starboard boat in the fourth tier, and the Wayne was directly behind her in the fifth tier. It appears that it had been planned to take the Wayne out of the tow at a point somewhat further up the Kills. The master of the Senator Rice testified that he had been informed of this plan when starting from Port Reading. Some time before reaching the dredge he received whistles either from his tug, the Wyomissing, or the helper, the Bern, which he construed as a signal to throw off the lines between the two barges. The result of the throwing off of the lines was that the Senator Rice did not keep its alignment in the tow. In no other way is it to be accounted for that the starboard boats in the first three tiers cleared the scow.

The testimony of the master of the Senator Rice is as follows:

"Q. Where were you on your boat at the time of this collision? A. I was walking to the bow about half way through her. Q. Just go on and tell us what you saw. A. What I saw, I was walking to the stern letting go of the lines on the other boat. Q. Why were you doing that? A. That was just before she struck I was letting the spring lines off the boat behind. Q. Why were you doing that? A. We were going to take the boat off. Q. What happened when you started to take these lines off? A. The boats were swinging

towards the tow, and all I know she struck the dredge. Q. Are you able to say whether all the lines on this particular boat had been taken off? A. Yes, sir. Q. What about the lines from that boat to the boat on the port side? A. I don' know; I didn't see them. Q. You say you got the lines from the stern of your boat to the bow of the boat astern of you free, did you? A. Yes, sir. Q. How many lines did you throw off? A. Two spring lines. Q. Was that all you did? A. That was all. Q. Was it then the collision happened? A. Just a little while after."

The testimony of the captain of the Bern is as follows:

"Q. Had you given any signal to this man on the Senator Rice or the Wayne No. 4 to cast off their lines before you got by that dredge? A. Yes, sir; one line the inside tow line. Q. How did you do that? A. Well, I was laying just like that ready to shove. I said, 'Let go your inside tow line, so you will be handy to get off.' Q. Who did you say that to? A. I guess it was the captain of the Wayne 4. Q. Did he do it? A. Yes sir. Q. Was that the only line? A. Yes; and he had breast lines out besides. Q. Did they in any way interfere with the position of the boats in the tow from what they were before the casting off of the line? A. No. Q. That was before you came to the digger? A. Yes, sir. Q. How long before? A. A couple of minutes; I was just going by the digger. I thought everything would be all right. Q. You got three tiers through all right, didn't you, past the scow? A. Yes. Q. The Senator Rice hit the scow alongside of the mud digger? A. Yes, sir. Q. Do you know how she hit? A. Well, the only thing I know was on the corner of the scow. Q. The Jersey corner? A. The Jersey corner, on the mud scow. Q. Were you pushing then with your tug? A. Yes, sir. Q. How did you keep away, to keep yourself from getting in? A. I kept pushing all the time. Q. Did you succeed then in getting the Wayne No. 4 clear? A. Yes, sir. Q. And yourself, too? A. Yes, sir. Q. You didn't let go in order to back out and get away? A. Yes, sir. Q. Did the Senator Rice break out of the tow? A. She hit. I don't know whether she parted the tow line, or not, to the boat ahead. Q. He said he cast them off long before. A. Cast his own tow lines off.

"Mr. Mattison: No; cast the lines astern of him.

"Q. Do you know what condition the lines were in between the stern of the Rice and the Wayne No. 4? A. No. Q. You don't know whether they were on or off? A. Well, they must be on, because she hung on-hung on to the tow. Q. They were all moving right along? A. Yes, sir. Q. If his lines had been off her A. He would drift away from the tow."

When the lines of the Wayne were cast off pursuant to orders, the strain on the lines not cast off, caused by the pushing of the tug Bern, resulted in throwing the bow of the Senator Rice so far out to starboard that it hit the scow. The collision was due solely to the negligence and lack of skill on the part of the captain of the Bern in order-ing the lines cast off at the time he did and in so navigating the Bern as to force the Senator Rice out so far to the starboard. We think the court reached the right conclusion in this matter, and we agree in holding that the dredge was not at fault.

Decree affirmed.

(234 Fed. 268)

CHICAGO & N. W. RY. CO. v. UNITED STATES.

(Circuit Court of Appeals, Seventh Circuit. April 18, 1916. Rehearing Denied June 1, 1916.) No. 2294.

1. CARRIERS 37-CARRIAGE OF LIVE STOCK-TWENTY-EIGHT HOUR LAWVIOLATION.

Under the Twenty-Eight Hour Law (Act June 29, 1906, c. 3594, 34 Stat. 607 [Comp. St. 1913, §§ 8651-8654]), declaring that no carrier shall confine cattle or other animals in cars for more than 28 hours without unloading for rest, water, and feeding, but that the shipper may consent to the time of confinement being extended to 36 hours, the penalty provided for violation may be recovered, though confinement beyond the 36-hour period, which was consented to by the shipper, was not willful or with intent to do injury to the stock.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 95, 927; Dec. Dig. 37.]

2. CARRIERS 37-CARRIAGE OF LIVE STOCK-VIOLATION OF TWENTY-EIGHT HOUR LAW.

In an action to recover the penalty imposed by the Twenty-Eight Hour Law, where a carrier keeps cattle confined longer than the maximum period of 36 hours, unless necessitated by storm or accident, it is no defense that an accident occurred on the last part of the journey, where, despite such accident, the shipment might have arrived in less than 36 hours, had diligence been exercised.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 95, 927; Dec. Dig. 37.]

In an action to recover the penalty imposed by the Twenty-Eight Hour Law for keeping cattle confined longer than 36 hours, evidence that the confinement was occasioned by the carrier's negligence held sufficient to go to the jury.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 95, 927; Dec. Dig. 37.]

Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.

Action by the United States against the Chicago & Northwestern Railway Company to recover a penalty for violation of the TwentyEight Hour Law. There was a judgment for the United States, and defendant brings error. Affirmed.

The action was for violation of the "Twenty-Eight Hour Law." It appears that the stock was loaded October 4th at 6 p. m. at Ringsted, Iowa, a station on defendant's road, and conveyed by defendant over its road to the stockyards at Chicago, where it was unloaded at 9:05 a. m. of the 6th, having been confined in the car continuously for 39 hours and 5 minutes. The shipper agreed to 36 hours' confinement. The car containing the stock was one of an extra train carrying stock only. Defendant gave evidence that the train reached Clinton, Iowa, which station it left at 6:30 p. m. of the 5th, for Chicago; that at Nelson, Ill., there were picked up and put into this train 5 cars of stock, which had been left there by a prior train, because it was found to be too heavy. The schedule running time from Clinton to Chicago was 9 hours, but it had been done in 6 hours. The train reached Proviso, a station just outside of the city limits of Chicago, and 16 miles from place of unloading, at 2:48 a. m. of the 6th, and while running through this station a

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

drawbar was pulled out of car No. 21239, which was the fifth car from the engine, and one of those picked up at Nelson, and one of the timbers which held the drawbar, falling upon the rails, caused derailment of the car following. It was necessary to send for a wrecker to re-rail the car. 'The wrecker was at Palatine, all ready with its crew to start on such emergencies. Notice of this derailment was received by the foreman of the wrecking crew at 4 a. m. He immediately started for Proviso, reaching there at 5:05 a. m. The track was cleared at 5:35 and the train proceeded on its course at 5:40. This conductor left the train at Fortieth avenue at 6:30 or 6:40, and it was there taken in charge by another of defendant's conductors, and started for the stockyards. After going about 5 miles and reaching Brighton Park, which is about 2 miles from the stockyards, an air hose on one of the cars burst, causing a sudden setting of the brakes, and the pulling out of a drawbar on another car of the train. This necessitated the setting out of that car, and replacing the air hose, causing further delay of 28 minutes.

Various witnesses testified to having examined car No. 21239 prior to the pulling out of the drawbar, and that they observed nothing to indicate that the drawbar was defective. At the conclusion of the evidence for the government, and again at the close of all the evidence, defendant moved the court to instruct the jury to find a verdict for the defendant, which motion the court denied. In the court's charge to the jury it was stated that the jury had a right to consider the movement of the train from the point where the stock was received to the Chicago stockyards, in determining whether the defendant exercised due diligence to transport the stock within the 36 hours; that the company may not lay out a slow schedule over a long distance, depending upon its ability, toward the end of the journey, to run in the stock within the 36-hour limit. To these portions of the court's charge defendant took exception. The jury returned a verdict against defendant, and judgment was entered and fine imposed. It is stated in the record and in briefs of counsel that seven other suits are pending against the defendant in the District Court, depending upon these same facts, and which by stipulation between the parties are to be disposed of in like manner as the case at bar.

Charles A. Vilas, of Chicago, Ill., for plaintiff in error.

Charles F. Clyne and Frederick Dickinson, both of Chicago, Ill., for the United States.

Before MACK and ALSCHULER, Circuit Judges, and ANDERSON, District Judge.

ALSCHULER, Circuit Judge (after stating the facts as above). [1] It is contended for plaintiff in error that the record herein discloses no evidence which would warrant the conclusion that plaintiff in error "willfully" violated the Twenty-Eight Hour Law. That the term "willfully," as employed in the act, does not imply deliberate intent to do injury to the stock or to its owner, has been too frequently considered and definitely determined to require further demonstration. The jury may conclude that the violation was willful, if from the evidence they find that the carrier in confining the stock beyond the statutory limit, manifested disregard of the law, or indifference toward its requirements. Newport News, etc., Co. v. United States, 61 Fed. 488, 9 C. C. A. 579; Ñ. Y. Cent. R. R. Co. v. United States, 165 Fed. 833, 91 C. C. A. 519; United States v. A., T. & S. Ry. Co. et al. (D. C.) 166 Fed. 160; United States v. U. P. R. R. Co., 169 Fed. 65, 94 C. C. A. 433; United States v. Atlantic Coast Line R. R. Co., 173 Fed. 764, 98 C. C. A. 110; C., B. & Q. R. R. Co. v. United States, 194 Fed. 342, 114 C. C. A. 334; O-W. R. & Nav. Co. v. United States, 205 Fed. 337,

123 C. C. A. 471; St Louis, etc., Ry. Co. v. United States, 209 Fed. 600, 126 C. C. A. 422; Grand Trunk Ry. Co. v. United States, 229 Fed. 116, 143 C. C. A. 392.

[2] It was stipulated by the company that the overtime of confinement of this stock was 3 hours and 5 minutes. It seems to be the theory of the plaintiff in error that, if it appears that unavoidable accident delayed the train in its course for a period of time at least as long as the 3 hours and 5 minutes, a complete defense will have been made, and that it was error for the court to charge the jury it may take into consideration the whole period of confinement, in determining whether any of the excess over 36 hours was in violation of the statute, and whether, in the exercise of due diligence by the carrier, the confinement should have terminated earlier than it did.

It is claimed that a delay of 2 hours 52 minutes unavoidably occurred at Proviso through a pulled drawbar, and consequent derailment of a car, and another of 28 minutes at Brighton Park through a bursting air hose and resultant pulling out of another drawbar-making 3 hours 20 minutes of unavoidable delay, but for which the stock presumably would have been unloaded 15 minutes before the expiration of the 36 hours.

The statute prohibits the carrier from confining the stock beyond the period fixed, without unloading into pens, etc., "unless prevented by storm or other accidents or unavoidable cause which cannot be anticipated or avoided by the exercise of due diligence and foresight." If the unloading is so prevented, the delay is excused; but if, notwithstanding unanticipated and unavoidable delays, the carrier ought nevertheless in the exercise of reasonable diligence to have unloaded the stock within the prescribed time, the delay will not relieve it from liability for confinement beyond that time. Delay in transportation may or may not necessarily delay the time of unloading, depending upon the facts of each case. Suppose an instance where, the shipper having consented to 36 hours' confinement, the time reasonably required to convey the stock from origin of shipment to unloading point was 10 hours, and that an excusable delay of 16 hours occurs in transportation; would this excuse the carrier in prolonging the confinement of the stock beyond the 36 hours? Plainly not, if in the exercise of due diligence the confinement, notwithstanding the delay, should not have exceeded 36 hours. In other words, since there were still 20 hours of the 36 in which to do what reasonably required but 10, the overtime of confinement would not be attributable to the delay in transportation. And surely the delay of 16 hours in the transportation would not in and of itself give the carrier the right arbitrarily to prolong the confinement from the original 36 to 52 hours, wholly regardless of the time reasonably necessary to reach an unloading point, without incurring the penalty of the statute, if the confinement is willfully and knowingly extended beyond 36, though within 52, hours.

So in the instant case, if conceding 3 hours 20 minutes of excusable delay at Proviso and Brighton Park, the jury nevertheless found from the evidence that the confinement of the stock in question ought not, in the exercise of due diligence by the carrier, to have exceeded the