enforce agreements between carriers for through billing and through rating, and for the use of each other's cars, tracks, and terminal facilities, yet that when a carrier, of its own volition, enters into an agreement of that nature with another connecting carrier, the law commands it to extend "equal facilities" to all other connecting carriers, if the physical connection is made at or about the same place, and the physical facilities for an interchange of traffic are the same, and that this latter duty the courts may and should enforce. It will be observed that the proposition contended for, if sound, will enable the courts to do indirectly what it is conceded they cannot do directly. It authorizes them to put in force between two carriers an arrangement for an interchange of traffic that may be of great financial importance to both, which could neither be established nor enforced by judicial decree, except for the fact that one of the parties had previously seen fit to make a similar arrangement with some other connecting carrier. It may be, also, that the arrangement thus forced upon the carrier would be one in which the public at large have no particular concern, because the equal facilities demanded by the complainant carrier would be of no material advantage to the general public, and would only be a benefit to the complainant.

Another necessary result of the doctrine contended for is that it deprives railway carriers, in a great measure, of the management and control of their own property, by destroying their right to determine for themselves what contracts and traffic arrangements with connecting carriers are desirable and what are undesirable. There ought to be a clear authority found in the statute for depriving a carrier of this important right before the authority is exercised, for, when questions of that nature have to be solved, a great variety of complex considerations will present themselves, some of which can neither be foreseen nor stated. A railroad having equal facilities at a given point for forming a physical connection with a number of connecting carriers might find it exceedingly beneficial to enter into an arrangement with one of them, having a long line and important connections, for through billing and rating, and for the use of each other's cars and terminal facilities, while it would find it exceedingly undesirable and unprofitable to enter into a similar arrangement with a shorter road, which could offer nothing in return. Or the case might be exactly the reverse. The shorter, and at the time the less important road, might be able to present sound business reasons which would make an arrangement with it, of the kind above indicated, more desirable than with the longer line. Furthermore, if it be the law that an arrangement for through billing and rating with one carrier necessitates a like arrangement with others, this might be a controlling influence in determining a railway company to refuse to enter into such an arrangement with any connecting carrier. In view of these considerations, we are unable to adopt a construction of the Interstate Commerce Act which will practically compel a car

rier, when it enters into an arrangement with one carrier for through billing and rating and for the use of its tracks and terminals, to make the same arrangement with all other connecting carriers, if the physical facilities for an interchange of traffic are the same, and to do this without reference to the question whether the enforced arrangement is or is not of any material advantage to the public.

In two of the cases heretofore cited (Kentucky & I. Bridge Co. v. Louisville & N. R. Co., and Oregon Short Line & U. N. Ry. Co. v. Northern Pac. R. Co.), it was held that the charge of undue or unreasonable discrimination cannot be predicated on the fact that a railroad company allows one connecting carrier to make a certain use of its tracks or terminals, which it does not concede to another. This conclusion was reached as the necessary result of the final clause of the third section of the Interstate Commerce Law, above quoted, to the effect that the second paragraph of the third section shall not be so construed as to require a carrier to give the use of its tracks or terminals to another company. Railroads are thus left by the commerce act to exercise practically as full control over their tracks and terminals with reference to other carriers as they exercised at common law. The language of Mr. Justice Field in that behalf was

as follows: "It follows from this . . . that a common carrier is left free to enter into arrangements for the use of its tracks or terminal facilities, with one or more connecting lines, without subjecting itself to the charge of giving undue or unreasonable preferences or advantages to such lines, or of unlawfully discriminating against other carriers. In making arrangements for such use by other companies, a common carrier will be governed by considerations of what is best for its own interests. The act does not purport to divest the railway carrier of its exclusive right to control its own affairs, except in the specific particulars indicated." 51 Fed. 474, 475.

Furthermore, it is the settled construction of the act, as we have before remarked, that it does not make it obligatory upon connecting carriers to enter into traffic arrangements for through billing and rating either as to passenger or freight traffic. This conclusion has been reached by all of the tribunals who have had occasion to consider the subject, and it is based on the fact that, in enacting the commerce act, Congress did not see fit to adopt that provision of the English Railway and Canal Traffic Act, passed in 1873, which expressly empowered the English commissioners to compel connecting carriers to put in force arrangements for through billing and through rating when they deemed it to the interest of the public that such arrangements should be made. Little Rock & M. R. Co. v. East Tennessee, V. & G. R. Co., 3 Interst. Commerce Com. R., 1, 9, 10; Kentucky & I. Bridge Co. v. Louisville & N. R. Co., 37 Fed. 567, 630, 631. See also the second annual report of the Interstate Commerce Commission (2 Interst. Commerce Com. R., 510, 511). In the

JOEST . CLARENDON & ROSEDALE PACKET CO.

SUPREME COURT OF ARKANSAS, 1916.

[122 Ark. 353.]

HART, J. (after stating the facts). (1) It is first insisted by counsel for the defendant that he was not a common carrier. The evidence, however, shows that he was operating an incline for hire at the time the rice was lost and that he undertook to carry the cargoes of all vessels plying the river up the incline to the cars of the railroad company. This made him a common carrier. Arkadelphia Milling Co. v. Smoker Merchandise Company, 100 Ark. 44.

(2) The shipment in question was an interstate one. The packet company was the initial carrier. The undisputed evidence shows that the rice became worthless when it fell into the river and the initial carrier paid to the shipper the value of the rice. It had a right then to recover from the connecting carrier the amount of damage it had been required to pay the shipper by reason of the negligence of the connecting carrier. K. C. & Mfs. Ry. Co. v. N. Y. Central & Hudson River Rd. Co., 110 Ark. 612; Atlantic Coast Line Rd. Co. v. Riverside Mills, 219 U. S. 186.

(3) It was the contention of the defendant that he gave his engineer instructions not to load more than fifty sacks of rice on one car at any one time and that in disregard of these instructions the plaintiff placed 96 sacks of rice on one of the incline cars and that the overloading of the car caused the loss. On this phase of the case the court instructed the jury that if the plaintiff placed 96 sacks of rice on one of the incline cars of the defendant and that if they further found that this was in violation of the instructions of the defendant, and that the overloading of the car was the cause or one of the causes of the loss of the rice, that they should find for the defendant.

FRAZIER v. NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY.

SUPREME JUDICIAL COURT OF MASSACHUSETTS, 1902.

[180 Mass. 427.1]

TORT for injuries caused by the plaintiff stumbling over a wooden platform about sixteen feet square raised from four to eight inches above the concrete floor of the station of the Boston Terminal Company in Boston after the plaintiff had alighted from a train of the defendant and was passing through that station on her way to the street.

LORING, J. This case does not come within the rule that a railroad corporation, which voluntarily uses the station of another railroad as its terminal station without reserving to itself any control over it, is liable for an accident which happens to one of its passengers within the limits of the station. In this case the defendant was compelled by the legislature to "use" this union station, which is the property of another corporation, and in the control of that other corporation; it was a stockholder, and as such had a vote as to the conduct of the other corporation, but that did not make it liable for the acts of the corporation; it could appoint one of the trustees, but that does not make the acts of the corporation its acts; it could apply to the railroad commissioners to have the regulations governing the use of the station changed, but so could the mayor of the city of Boston; that did not make either one or the other liable for the negligence of the corporation. The provision that it shall "use" the station would have been significant had any option been given to the defendant railroad; but when the defendant railroad was compelled to use a union station owned and operated by a separate corporation, in the opinion of a majority of the court it was intended that it should deliver its passengers to the care of the owner of the union station, and that however it may be in case an accident occurs while the defendant's trains are being drawn by the defendant over the tracks of the Terminal Company, the defendant's liability to the plaintiff is at an end when the passenger alights in safety from its cars on to the platform of the station of the Terminal Company. The relation between the five railroad companies and the Terminal Company is virtually that between connecting railroads.

1 Only an extract is printed.-Ed.

CHAPTER IV.

EXCUSES FOR REFUSING SERVICE.

LANNING v. SUSSEX RAILROAD COMPANY.

ESSEX CIRCUIT, NEW JERSEY, 1877.

[1 New Jersey Law Journal, 21.]

THE plaintiff, a huxter, who brought up produce throughout the country, and shipped it to the Newark market, had given offence to the station agent and superintendent of the defendants' road, by personal disputes and also by reason of several suits which were pending. This led the superintendent to instruct the station agent to refuse to ship any merchandise for the plaintiff from Huntsville to Newark.

DEPUE, J., charged the jury: That the defendants were common carriers; and as such were bound to receive all merchandise offered them for shipment, unless the peculiar condition or character of the goods offered was such as to impose a hazardous undertaking; in other words, the objection to be valid must arise out of the goods and not the shipper. That the defendants under the evidence in the cause had so conducted themselves towards the plaintiff, as to give the plaintiff a right of action against them. That evidence offered by the defence of certain suits pending between the parties, numbering some eight or ten, was rejected, because it was offered for the purpose of showing a personal feeling between the parties. That the plaintiff was entitled to recover the value of the perishable goods left at the station, if he left them there believing defendants would ship them as he had directed; but if he left them there to impose a liability on defendants, and knew the goods would be lost, he could not recover them. That if plaintiff was obliged to carry his goods to another station, through the action of the defendants, he should be compensated for such additional trouble and expense. That if the plaintiff's general business was injured by the act of the defendants in refusing to ship for him from said station, he might recover for such general damage, and the damages need not be confined to the business done by the plaintiff at that particular station; the principle being, that the defendants should be held liable for all damages of which they were the immediate or proximate cause.

JENCKS v. COLEMAN.

CIRCUIT COURT OF THE UNITED STATES, 1835.

[2 Sum. 221.]