CHAPTER IX.

JUSTIFICATION FOR SUSPENSION OF SERVICE.

$261. Right to suspend service.

TOPIC A-PRESS OF BUSINESS.

§ 262. Lack of vehicles.

263. Sudden press of business.

264. When usual business is provided for.

265. When expected business is not provided for.

TOPIC BORDER OF PREFERENCE IN CARRIAGE.

§ 266. Order of preference as between different classes of goods. 267. Public necessities considered in determining preference. 268. No preference justifiable between goods of same nature. 269. Order of preference between stations.

270. No part of the system should be given preference.

271. Order of preference between shippers.

272. Apportionment of cars to shippers.

TOPIC C-INTERRUPTION BY STRIKE.

§ 273. Refusal to receive because of strike is not justifiable.

274. Deficient service not excused by strike.

275. Refusal to receive because of the violence of the strikers or others. 276. How far employers of carriers are bound not to strike.

TOPIC D-WITHDRAWAL FROM THE BUSINESS.

§ 277. Whether there is an obligation to operate the whole system.

278. Obligation to serve according to charter provisions.

279. Service must be continued according to charter provisions.

280. Where no mandatory charter provision.

281. Partial withdrawal permitted.

282. Whether permanent abandonment is permitted.

283. Complete abandonment permitted.

§ 261. Right to suspend service.

Another situation which involves the duty to receive which rests upon common carriers is when the carrier is unable or unwilling to handle all the passengers who offer themselves or all the goods which are tendered. In such a case the carrier may claim the right to suspend service, either as to certain classes of traffic or altogether. For instance, by reason of press of business the carrier may declare a "freight embargo' as to certain articles or in case of a strike the carrier may announce a temporary suspension of business. The question is whether in these and other cases which will be discussed, the carrier is acting contrary to its public duty to the public as a whole, even though the policy is worked out without making personal discriminations against any particular persons. In this chapter, also, more extreme cases are added where the carrier decides for a good reason or for no reason to give up business over a part of its route or to retire from the business altogether.

TOPIC A- PRESS OF BUSINESS.

$262. Lack of vehicles.

The carrier is bound to furnish proper vehicles enough to carry on his business, and in the ordinary case he cannot excuse himself for failure to carry passengers or goods on the ground that he has not vehicles enough to transport them.1 This would be allowing the carrier to urge his own failure in his duty to provide adequate facilities as an excuse.

If cars are needed in which to load car-loads of goods, notice of that fact must be given to the carrier in advance. He cannot be expected to provide empty cars of every sort at each station enough to meet an unexpected demand; but if he is given reas

1 Hausley v. Jamesville & W. R. R., 117 N. C. 565, 23 S. E. 443, 32 L. R. A. 551 (1895).

onable notice of the need of such a car he must supply the car.2 And this is, of course, all the clearer if the carrier expressly agrees to supply the car.3

§ 263. Sudden press of business.

The carrier is, however, bound to provide only for such a demand for carriage as he may reasonably foresee; he cannot be required to be able at any time to care for an extraordinary and unexpected demand for carriage. The unexpected demand rendering it impossible after his vehicles are all in use to carry more goods or passengers, will excuse him for refusing to receive additional goods or passengers.*

Indeed, he must refuse further applications, or at least give them notice of the emergency, as otherwise he will be responsible for the delay or other injury caused by the sudden press of business.5

§ 264. When usual business is provided for.

The duty is relative, not absolute. When adequate provision is made for usual business it can hardly be said that the carrier has not fulfilled his duty. The general principle is well stated in its application to a particular case in a proceeding before the

2 Chicago & A. R. R. v. Erickson, 91 Ill. 613 (1879); Ayres v. Chicago & N. W. Ry., 71 Wis. 372, 37 N. W. 432, B & W. 223 (1888).

3 Pittsburgh, C., C. & S. L. Ry. v. Racer, 10 Ind. App. 503, 37 N. E. 280 (1894); Currell v. Hannibal & S. J. R. R., 97 Mo. App. 93, 715 S. W. 113 (1902); McAbsher v. Richmond & D. R. R., 108 N. C. 344, 12 S. E. 892 (1891); Mathis v. Southern Ry., 65 S. C. 271, 43 S. E. 684, 61 L. R. A 824 (1903); International G. N. R. R. v. Young, 28 S. W. 819 (1894).

4 Dawson v. Chicago & A. R. R., 79 Mo. 296 (1883); Gordon v. Manchester & L. R. R., 52 N. H. 596 (1873); Wibert v. New York & E. R. R., 12 N. Y. 245 (1855); Tierney v. New York C. & H. R. R. R., 76 N. Y. 305, B. & W. 215 (1879); Porcher v. North E. R. R., 14 Rich. Law (S. C.), 181 (1867); Ayres v. Chicago & N. W. Ry., 71 Wis. 372, 37 N. W. 432, B. & W. 223 (1888).

5 Dawson v. Chicago & A. R. R. (supra); Helliwell v. Grand Trunk Rỵ., 7 Fed. 68 (1881); Ayres v. Chicago & N. W. Ry., supra.

Interstate Commerce Commission, where Commissioner Bragg said: "The vast fluctuations and unforeseen developments of commerce, or the fault or misfortune of some one or more connecting lines, may occasionally bring about a condition of affairs in which the best managed railroad, and with the most ample freight equipment, is unable to move at once as promptly as tendered all the freight upon its line, and this without any fault of its own. There is no evidence that the freight equipment of the Pittsburgh & Lake Erie Railroad Company had been unequal to the business of the previous season; and yet in the season the latter part of which is complained of, it appears, in the exercise of good faith and prudent preparation in the line of its duty, to have increased its freight equipment over what it had been in the previous season, and to have kept it well in hand upon its own line for the movement of the freight of that line; and, in addition to this, it had a right to rely, and did rely, upon its arrangements with the Lake Shore & Michigan Southern Railway Company and the New York, Pennsylvania & Ohio Railroad Company for cars. It certainly is the duty of every railroad company to provide itself with a sufficient freight equipment and to keep this well in hand for the prompt movement of freight over its line, based upon known and probable estimates of the business of a season. This the Pittsburgh & Lake Erie Railroad Company seems, from the evidence, to have done; but when an immense volume of local freight was held back by shippers for several months and then precipitated by them upon this carrier, all at once, it could not furnish all the cars thus demanded for the instant movement of this mass of accumulated freight. It did, however, do all in its power to move this freight as quickly as possible. This was no violation of the third section of the Act to Regulate Commerce."

6 Riddle, Dean & Co. v. Pittsburgh & L. E. Ry., 1 Int. Com. Rep. 689 (1888).

§ 265. When expected business is not provided for.

It would seem to be true also that if the sudden press of business might have been provided against by reasonable diligence of the carrier that there is no such excuse. For example, the carrier should plainly provide more cars upon passenger trains it if is known that by reason of some event more passengers than usual will offer themselves for transportation. And to apply the same rule to the transportation of freight, the carrier performs his public duty by providing for the normal fluctuations in offerings of freight. "The sufficiency of such accommodations must be determined by the amount of freight and the number of passengers ordinarily transported on any given line of road. The duty of a company to the public, in this respect, is not peculiar to any season of the year, or to any particular emergency that may possibly arise in the course of its business. The amount of business ordinarily done by the road is the only proper measure of its obligation to furnish transportation. If by reason of a sudden and unusual demand for stock or produce in the market, or from any other cause, there should be an unexpected influx of business to the road, this obligation will be fully met by shipping such stock or produce in the order and priority of time in which it is offered." 8

TOPIC B-ORDER OF PREFERENCE IN CARRIAGE.

§ 266. Order of preference as between different classes of goods.

When such an emergency happens, the carrier must prefer certain classes of passengers or freight, and must accept and carry those of a higher class before accepting and carrying those

7 Chicago & A. Ry. v. Fisher, 31 Ill. App. 36 (1888); Percell v. Richmond & D. R. R., 108 N. C. 414, 12 S. E. 954, 12 L. R. A. 412 and note (1891).

8 Fagg, J., in Ballentine v. North Mo. R. R., 40 Mo. 491, B. & W. 222 (1886).