§ 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).

of a lower class. In general, it may be said that preference must be given to passengers. Live stock must be preferred to dead freight. And among the classes of dead freight, prishable goods must be accepted and carried before non-perishable goods.1

267. Public necessities considered in determining prefer

ence.

If, when the line is blocked by freight, the carrier forwards first those goods which are most necessary to the public, it can hardly be said that the carrier is not performing its public duty. Thus is one proceeding before the Interstate Commerce Commission, where complaint was made that there had been unreasonable delay in forwarding hay, the defendant company was exonerated upon a review of the circumstances, Yeomans, commissioner, saying in part: "The anthracite coal strike, for which the defendant railroad companies do not appear to be in any way responsible, necessitated the transportation of bituminous coal from the mines in West Virginia, Maryland and Pennsylvania to eastern points to supply the demand for fuel for industrial and domestic use, and this operated to prevent the shipment of some other classes of freight. Defendants probably had the right to give such freight the preference, and it was not improper that live-stock, perishable freights, and material or supplies for the railroad should be excepted from any embargo imposed. It was also proper that embargo notices should be given such connecting lines, so as to avoid the further congestion of freight in junction freight yards; and in the forwarding of freight received from connecting lines it was proper

1 Michigan C. R. R. v. Curtis, 80 Ill. 324 (1875); Hewett v. Chicago, B. & Q. Ry., 63 Iowa, 611, 19 N. W. 790 (1884); Dixon v. Chicago, R. I. & P. Ry., 64 Iowa, 531, 21 N. W. 17 (1884); Marshall v. New York C. R. R., 45 Barb. (N. Y.) 502 (1866); Tierney v. New York C. & H. R. R. R., 76 N. Y. 305, B. & W. 215 (1879); McGraw v. Baltimore & O. R. R., 18 W. Va. 361 (1881); Briddon v. Great Northern Ry., 28 L. J. Ex. 51 (Eng. 1858).

2 S. S. Daish & Sons v. Cleveland, A. & C. Ry., 9 I. C. C. Rep. 513 (1903).

that cars should be forwarded as far as practicable in the order of their receipt, so that there should be no unreasonable discrimination or preference which might be avoided."

§ 268. No preference justifiable between goods of same

nature.

It would be a safe generalization, however, that no preference is justifiable between goods of the same nature if the conditions surrounding the movement of the traffic are the same. Thus, in one proceeding before the Interstate Commerce Commission 3 it was alleged that the company was violating the law in giving preference in cars in time of stress to the coke trade over the coal trade. It was held that if this were proved there was illegal discrimination, Commissioner Bragg saying: "Common carriers have no right to withdraw from the transportation of any articles not dangerous to handle and which are ordinarily the subject of transportation by them. Less desirable traffic must be accepted upon reasonable terms as well as that which is more desirable. In this matter as in many others the principles of the Act to Regulate Commerce in prohibiting undue and unreasonable preferences and advantages are simply declaratory of the common law. The common carrier has no right to select either goods or customers. In the present case the commodity in question is one of the chief articles transported upon defendants' lines, and the points between which its movement was desired are points between which general business is solicited; yet the witness testified that his road is not engaged in carrying coal and ore into Cincinnati. His tariff sheet in this respect was better than his practice, for a reasonable rate to Cincinnati on coal was announced in a formal joint tariff to which the Erie road was a party, and when coal was offered for shipment thereunder the party tendering it was as much entitled to have it transported as was any mine-owner or shipper of coal in the

3 Riddle, Dean & Co. v. Pittsburgh & L. E. Ry., 1 Int. Com. Rep. 689, I. C. C. Rep. 374 (1888).

Pittsburgh region. It was the duty of the carrier to make every reasonable exertion to get it foward without unjustly prejudicing the rights of others in respect to the freight which each contemporaneously tendered. It is not meant by this that the Erie Company was bound to furnish gondola cars for this shipment, but it was bound to make an effort to furnish some sort of cars to move the coal, either gondolas or others. It refused wholly to do anything; it had a large equipment aside from its gondolas; it made no effort to appropriate any other cars to this service or to obtain cars elsewhere."

§ 269. Order of preference between stations.

It is obviously impossible to regulate the order of accepting goods according to the time of offers for shipment over the whole line. Reasonable facilities must be provided for each station, and when the space provided for the station has been exhausted no further goods need be received there until it is possible to get more cars without depriving another station of its supply. This matter was discussed in the case of Ballentine v. North Missouri Railroad. In the course of his opinion in that case Mr. Justice Fagg said: "It seems to have been the theory upon which the petition proceeded in this case, that it was the duty of the defendant to have shipped the live stock in the order of time in which it was offered with reference to the entire line of its road, and not to any particular station. This is altogether unreasonable, and in its practical operation would work great hardships upon all companies. Its duty in this respect, then, must be understood in reference to each particular station, and not to the operation of the road as a whole. Whilst it may be difficult to lay down any general rule upon this subject, sufficiently accurate in its terms to cover all cases that may possibly occur, still we think it can be approximated by saying that its means of transportation must be so distributed at the various.

440 Mo. 491, B. & W. 222 (1867).

stations for receiving passengers and freight along the entire line of its road, as to afford a reasonable amount of accommodation for all. Or, to state it differently, no one station should be furnished with means of transportation to the prejudice of another, but a distribution should be made among all in something like a just proportion to the amount of business ordinarily done at each. Its duty is to receive all freight that may be offered, and within a reasonable time, and in the order in which it is offered, to transport the same to any other point on the line of its road that may be designated by the owner or other person having charge of it. This duty to the public must be performed in good faith, and without partiality or favor to any one."

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

All cars available should be used for the equal benefit of the whole system, no part being given preference over another. The question was considered at length in Ayres v. Chicago & Northwestern Railway. In that case Mr. Justice Cassoday said: "Whether the defendant could with such diligence so furnish upon the notice given, was necessarily a question of fact to be determined. The plaintiffs, as such shippers, had the right to command the defendant to furnish such cars. But they had no right to insist upon or expect compliance, except upon giving reasonable notice of the time when they would be required, to be reasonable, such notice must have been sufficient to enable the defendant, with reasonable diligence under the circumstances then existing, to furnish the cars without interfering with previous orders from other shippers at the same station, or jeopardizing its business on other portions of its road. It must be remembered that the defendant has many lines of railroad scattered through several different States. Along each and all of these different lines it has stations of more or less importance. The company owes the same duty to shippers at any one station.

571 Wis. 372, 37 N. W. 432, B. & W. 223 (1888).