
    (Clinton County Court of Common Pleas.)
    THE B. & O. R. R. CO. v. JAMES FISHER & SON.
    1. A railroad company, as a common carrier, is bound to furnish cars fo?r the transportation of freight, and it must have control of its cars in order to perform its duties to the shipping public. It may, there fore, make and enforce reasonable rules and regulations to secure the prompt unloading of its cars.
    2. Where a number of railroad companies, by mutual agreement, enter into a car-service association, and such association adopts such reasonable rules and regulations, it is the same in effect as if each company for itself had adopted the same.
    3. A rule or regulation, requiring consignees, on receiving notice of the arrival of cars, to unload the same within four days thereafter,or pay the delivering company 81 per car per day, for all the time over said period of four days that such cars shall remain on the tracks of said company'without being unloaded, is a reasonable rule or regulation, and therefore legal and valid.
    1. Before such rule or" regulation can be enforced against a particular consignee, it must be shown that he had knowledge of it, and that the cars, on their arrival, were placed on the side tracks of the company in suitable and convenient places for unloading, and were so kept for the full period of four days.
    5. But a car need not be kept for said ■period, in the same spot or place on the side track. If, in receiving other freight and removing unloaded cars, ,it becomes necessary to shift the position' of a car awaiting unloading, such shifting will not relieve the •consignee from the duty of unloading in the four days, provided the car, after shifting, is left in a convenient place for unloading.
    6. If a car is placed and kept in a suitable place for unloading for the four days prescribed by the rule, and the consignee fails to unload it, he will be liable for car-•service thereafter though the car may not at all times be in a convenient place for unloading, provided he is not thereafter unreasonably hindered and delayed in unload ing.
    7. But if a car is shifted from day to day and from place to place, and is not at any time for the full period of four days, in a suitable place for unloading, the company can not recover car-service therefor.
    Charge of the Court.
   VAN PELT, J.

Gentlemen of the Jury: It is admitted by the pleadings in this case that certain cars loaded with coal and coke and consigned to said defendants, were received at this place at the times stated in the petition and were the same cars for which plaintiff is now claiming service.

Taking this fact as admitted, the issues joined between the parties'in their pleadings impose upon the plaintiff before it can recover in this case the burden of proving by a preponderance of the evidence :

First — That said defendants were notified or had actual knowledge of the arrival of said cars, and failed to have the same unloaded for more than four days after being thus notified or learning of their arrival. If this fact is not shown as to some one or more of these cars, plaintiff cannot recover. But if it is shown, then plaintiff must go further, and prove,

Secondly — That said plaintiff company was at the time operating its railroad and shipping merchandise over its lines under a rule or regulation, applicable to shipments to this place requiring those to whom such shipments were made on learning of their arrival here, to unload the same from the cars, within four days thereafter, or to pay to the delivering company $1 per car per day for all the time over said period of four days, that such cars should remain on the tracks of the company without being unloaded.

is the existence of such a regulation at that time shown by the evidence?

If you find that some time before these shipments a number of the railroad companies doing business in this part of the country, including the plaintiff, The Baltimore & Ohio Railroad Comdany, had formed or entered into a car-service association, and that such association, in order to secure the prompt unloading of cars, had adopted such a rule or regulation, this would be the same in effect as if the plaintiff company had itself adopted the same.

And if you find that such a rule or regulation was then in force and applicable to shipments to this place, including shipments of coal and coke, then, if such rule or regulation was reasonable, that is if it imposed no unreasonable burden or restriction upon those receiving shipments here, it was legal and valid, and may be enforced by the company.

It is a well-settled rule of law in this state, that a railroad company as a common carrier of freight, may make and enforce all reasonable rules and regulations for the convenient transaction of business between itself and those dealing with it as shippers, or consignors.

A railroad company as a common carrier is bound to furnish cars for the transportation of freight, and it must have control over its cars in order to perform its duties to the public. If persons to whom shipments of goods and merchandise were consigned, might hold the cars without unloading, at their pleasure or convenience, and without extra costs or charges, and thus deprive the railroad company of the use of its cars for the transportation of other freight, it is very evident that both the railroad company and the shipping public would suffer serious injury and loss. The right, therefore, of a railroad company to make and enfocre reasonable rules and regulations to secure the prompt unloading of its cars is clear.

Whether a particular rule or regulation is or is not raesonable in its requirements, is, when the facts are shown, a question of law for the court, and not a question of fact for the jury. And I now say to you that the time allowed for unloading, four days, was a reasonable time, and" that the amount charged (81) per day, for each day over the period of four days, is not excessive, and that the rule or regulation in question, if you find that such a rule or regulation is established by the evidence, was a reasonable one, and is valid in law.

_ If the existence of such a rule or regulation is not shown, the plaintiff cannot recover, for it bases its right to recover upon such a rule or regulation. But if such a rule or regulation is shown, and that it was applicable to shipments to this point, and that the defendants on the arrival of said cars were notified or obtained actual knowledge of the fact and failed for more than four days to have the same unloaded, yet, before plaintiff can recover it must appear that the defendants had knowledge of such rule or regulation at the time, and it must also be shown by a preponderance of evidence that the cars on their arrival were placed and kept upon the side track of the company in suitable and convenient places for unloading the same by wagons and teams.

When a car arrived, it was the duty of the servants of the company to place the same in a convenient place for unloading, and if they failed to do so,- the period of four days allowed for unloading would not begin until such car was placed in a convenient and proper place to be unloaded.

And when a car was once put in a suitaable place for unloading, it wás the duty of the servants of the company to keep it so located for the four days’ time provided for unloading ; and if they failed to do so, the company cannot recover for car service for such car under the rule, until the same is placed in a convenient place for unloading, and kept in such a place for said period of four days.

In saying that a car must be placed and kept in a convenient place for un’oading for said period of four days, I do not mean that a car must be kept in the same spot or place on the track during all of said period of four-days.

If, in receiving other cars from day to day, and in removing cars that have been unloaded, it becomes necessary to shift the position of a car awaiting unloading upon the side tracks of the company, such shift ing or changing of position will not prevent the company from recovering for car service if the car is not unloaded within the four days, provided the car is, after such shifting, left in a suitable and convenient place for unloading.

But, if the car is shifted in its position from day to day, and on some days is in a suitable place for unloading, and on other days not, and is not at any time for the full period of four days kept in a suitable place for unloading, the company can not recover from the consignee, car service under the rule on account of his failing to unload such car within the period of four days for unloading.

The consignee is entitled to have the car placed and kept in a convenient place for unloading for the full period of four days prescribed by the rule before ho can be held liable for car service on account of his failing to unload within that time.

But if a car is placed and kept in a suitable place for unloading for the full period of four days, and the consignee fails to unload the same within that time, he will be liable for car service after that period, although the car may not at all times thereafter be kept in a convenient place for unloading unless the servants of the company thereafter unreasonably delay him in unloading by placing the car in unsuitable places and keeping the same there longer than .reasonably necessary to enable them to accommodate other shippers and to receive and remove other cars in the transaction of other business. If, however, after the period of four days, the consignee is unreasonably delayed and hindered in the unloading of the car, the company can not recover service for any day on which he is thus hindered and-delayed.

Again, it is the duty of a railroad company operating under such a rule or regulation, to provide at each of its stations where-such rule is in force, side tracks sufficient in-number and extent to accommodate its business at sucht stations,and to enable its servants to place and keep cars accessible for purposes of unloading. And if such sufficient side tracks are not provided, and because of the want thereof, the servants of the company are unable to Keep cars in places convenient for unloading for the period prescribed by the rule, the company can not recover car service for cars left without being unloaded longer than that time.

If a consignee on being notified or learning of the arrival of a car, takes or sends a wagon or wagons with the necessary help for unloading the car. and on arriving at the track finds that the car is not in a suitable place for unloading, he is not required to keep his wagon and hands waiting while the company may be shifting cars upon its tracks, or until the car may be placed in position where it may be unloaded. And the company cannot recover car service for any day on which the consignee is thus hindered in unloading, nor can any day on which he is so hindered be counted asa part of the period of four days allowed for unloading, unless the time occupied is of such short duration as to constitute no substantial hinderance to the work of unloading.

1 have now, as I believe, stated all the rules of law applicable to the plaintiff’s-claim for car service under the rule upon which it asserts its right to recover. I have only stated the law applicable to the different questions arising upon the pleadings and the evidence in relation to this claim, and it is for you to determine from the evidence what the facts are, and whether the plaintiff is or is not entitled to recover under the rules of law as I have stated them.

If you find in favor of the plaintiff upon his claim you will ascertain the number of days for which it is entitled to recover as to all or any of the cars received, and allow it for the total number of days at the rate of $1 per day; and this amount with 6 per cent, interest from September 29, 1894, would be the amount of your finding in favor of the plaintiff.

Verdict for plaintiff.

Hayes & Swaim, for plaintiff.

West & Walker, for defendant.

But if you find that the plaintiff, upon the' evidence, and under the rules of law which I have stated, has failed to prove any fact or facts essential to its right to recover, your verdict as to the claim of the plaintiff will be in favor of the defendant.

I come now to the claim of the defendants’ for damages as set out in their answer herein.

Said claim in substance is that said cars when they arrived at the station here, were not so placed as to be accessible for unloading for a long time after their arrival, and that when they were so placed they were not allowed to remain, but were shifted from place to place, at some times wholly inaccessible, and at other times accessible, only ?t great disadvantage and loss of time to men and teams, ánd that by reason of such neglect, inaccessibility of cars and unnecessary and unreasonable delay, defendants sustained damages in loss of time and extra expense incurred in the sum of 820.

All the allegations of defendants’ answer on which said claim for damages is founded, are denied by plaintiffs in their reply to said answer.

Upon this claim for damages the burden of proof is cast upon the defendants.

When said cars arrived, defendants were entitled to have the same put within a reasonable time, at such places as would be convenient and accessible for unloading, and to have the same kept at such places for a reasonable time to enable them to unload said cars.

In order for the defendants L. recover upon their claim for damages, the burden is on them to show by a preponderance of the evidence the following facts:

First — That the servants of the company neglected to place and keep said cars in places conveniently accessible for a reasonable time for unloading the same.

Second — That because of said neglect defendants were unreasonably and unnecessarily hindered and delayed in unloading said cars. And,

Third — That by reason of such hinderance and delay, and the leaving of such cars in places inaccessible for unloading, defend-ans sustained damages in loss of time and extra expense. You will look carefully to all the evidence relating to these points. If you find that all of the above facts are established by he evidence, then you will-find in favor of defendants on this issue, and will award them such damages as the evidence may show that they sustained in loss of time or extra expense by reason thereof, not exceeding (he amount claimed in their answer.

But if defendants have failed to show any fact or facts essential to their right to recover such damages your verdict will bó against defendants upon this issue.

Now gentlemen, you are the sole judges of all questions of fact and as to the weight of the evidence and the cr'edibility of the witnesses. In determining the weight and credit to be given to the testimony of any witness you should consider the manner of the witness in testifying and his demeanor while on the witness stand ; the opportunities which such witness ^ may have had to know the truth concerning matters about which he testifies; the interest which any witness may have in the result of the case; the interest, feeling or prejudice which .any witness may have shown in favor of or against either party to the suit; these and all other facts which, in your judgment, affect the weight and credit to be given to the testimony of each and all of the witnesses; and after carefully weighing all the evidence return such verdict as you shall find warranted by the evidence under the law as given you by the court.  