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Statutes forbidding preferences in furnishing cars merely declaratory of the common law,- see ante, § 26, note [1].

General duty of carriers not to discriminate as to facilities and service,- see ante, § 32, note [1].

[1] General duty to furnish cars.

Duty to furnish cars for interstate traffic,- see Interst. Com. Act, § 1, post, Appendix B.

Duty of carrier to furnish safe and suitable cars, see ante, § 26, notes [5]-[7].

Power of Commission to compel furnishing of cars,- see post, § 49, note [13].

The fact that a shipper of coal engages also in some other pursuit and is not a so-called "legitimate operator," and that he loads the coal directly from wagons instead of from tipples, does not abridge his right to have cars furnished to him for his shipments.- Thompson v. Pa. R. Co., 10 Inters. Com. R. 640.

In granting the privilege of leasing cars and equipment, carriers must treat shippers on an equality.- Castle v. B. & O. R. Co., 8 Inters. Com. R. 333.

It is the duty of the carrier to furnish the vehicle of transportation. - Independent Ref. Assn. v. W. N. Y. & P. R. Co., 4 Inters. Com. R. 167, 5 I. C. C. R. 415.

A railroad is bound, at common law, to furnish suitable and sufficient cars on reasonable notice, when it can do so with reasonable diligence without jeopardizing its other business.- Di Giorgio I. & S. Co. v. Pa. R. Co., 104 Md. 693, 65 Atl. 425.

A railroad is not bound to hold a large number of cars a whole week for one shipper, without knowing what hour or day any of them may be needed.-Di Giorgio I. & S. Co. v. Pa. R. Co., 104 Md. 693, 65 Atl. 425.

A carrier is liable for failure to furnish cars for carrying cattle, after reasonable notice.- Baltimore & O. R. Co. v. Whitehill, 104 Md. 295, 64 Atl. 1038.

A railroad company is bound at common law, independently of any statute, to use at least ordinary diligence in procuring a sufficiency of cars to carry all freight tendered it.- Branch v. Wilmington & W. R. Co., 77 N. C. 347.

[2] Duty to furnish special cars or equipment.

See also, ante, § 26, notes [5]-[7].

Power of Commission to compel furnishing of special cars or equipment,- see post, § 49, note [19].

How carrier may procure equipment,- see ante, § 26, note [6]. Power of Commission to compel furnishing of special kinds of cars or equipment,- see post, note [31].

If a carrier holds itself out to carry perishable goods, it must provide a car with equipment for refrigeration, etc. Whether it does so by purchase or by lease does not affect its responsibility to the shipper for the sufficiency of the car and refrigeration.- Matter of Charges for Transportation of Fruit, 11 Inters. Com. R. 129.

It is a railroad's duty to furnish milk cars with icing facilities, etc., if the amount of milk carried is large and such facilities would be of public advantage.- Baker v. Boston & M. R. Co., N. H. Atl. 386.

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Plaintiff asked for refrigerator cars for melons. The carrier had a contract with a car line company to furnish cars for shipments of this sort. Suitable cars were not furnished, and the shipper sent his melons by express and sued for the excess cost. He was permitted to recover on the ground that if the railroad holds itself out as a carrier of melons, it must furnish the necessary refrigerator cars, etc., and the failure of the car-line company to keep its contract does not excuse it.— Mathis v. Southern R. Co., 65 S. C. 271, 43 S. E. 684, 61 L. R. A. 824. A common carrier of live stock is bound to furnish suitable cars for the carriage of stock, upon reasonable notice, whenever it can do so with reasonable diligence without jeopardizing its other business as carrier.- Ayres v. Ch. & N. W. R. Co., 71 Wis. 372, 37 N. W. 432.

[3], [4] Duty as to furnishing of cars on sidings.

The defendant carrier, which had for some months permitted the loading of cars with coal on its sidetrack at a station, made a regulation by which it withdrew such permission, and it thereafter refused to furnish cars to be so loaded to the plaintiff or any other shipper. During such period, however, certain mine-owners had contracted with the carrier for the construction of private spur-tracks to their mines, were furnished cars, some of which they loaded from wagons while standing on such private spurs before the mines had been developed to the point of building tipples for loading.-Held, that the furnishing of such cars, while refusing to furnish cars for loading on the station track to plaintiff, who had built no spur track, does not constitute an undue preference or discrimination, at common law or under the Arkansas statute prohibiting the giving of any preference in the furnishing of cars.- Harp v. Choctaw, O. & G. R. Co., 125 Fed. 445.

Refusal of the carrier to switch cars to plaintiff's side track without advance payment of demurrage charges is unlawful, even where plaintiff had refused to pay such charges on certain cars previously delivered to him without prepayment.- Macloon v. Ch. & N. W. R. Co., 3 Inters. Com. R. 452, 711, 5 I. C. C. R. 84.

Under the statute of Minnesota requiring a carrier to furnish cars upon reasonable notice, if a railroad itself furnished suitable warehouse facilities for receiving, handling and storing all grain designed for transportation over its road, it might designate such warehouse or elevator as the exclusive place at which it would receive grain for shipment at that station, and refuse to receive it or furnish cars for its shipment at any other place; but in case of failure to furnish these facilities, then it should be required to allow others to build warehouses adjacent to its track or else build sidetracks to warehouses near the station, so that the public would be furnished with proper facilities; and this implies the furnishing of cars in which to ship. grain from such warehouses.- Rhodes v. No. Pac. R. Co., 34 Minn. 87, 24 N. W. 347.

[5] Necessity for tender of goods.

If the carrier refuses to furnish cars, on demand by shipper, it is not necessary that he should prepare and tender the goods.- Houston, E. & W. T. R. Co. v. Campbell, 91 Tex. 551, 45 S. W. 2, 43 L. R. A. 225n.

[6] Applications for cars.

A statute of Texas rendered carriers liable to a penalty for failure to deliver cars to shippers within six days after written demand for the same. A shipper, when applying for cars, requested that the cars be delivered " as soon as possible."- Held, that no penalty could be recovered for failure to deliver cars within six days.- Texas & P. R. Co. v. Shipman, 17 Tex. Ct. R. 152, 98 S. W. 449.

The local agent of the station at which cars are desired has authority to receive applications therefor.- Texas & P. R. Co. v. Allen, 17 Tex. Ct. R. 256, 98 S. W. 450.

The Texas statute required "the written application" of the shipper for cars to state “the number of cars desired, the place at which they are desired, and the time they are desired." Plaintiff's application asked for a specified number at a specified place "as soon as possible." -Held, that this specified no time whatever, and the application could not be the basis of a suit to recover a forfeiture.- Texas & P. R. Co. v. Hughes, 14 Tex. Ct. R. 894, 91 S. W. 567.

"Reasonable notice" by a shipper to a carrier that he will require cars for the transportation of freight is such a notice as will enable the carrier, 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.- Ayers v. Ch. & N. W. R. Co., 71 Wis., 372, 37 N. W. 432.

[7] Notice of inability to furnish.

A carrier having reason to anticipate its inability to furnish cars for which it has received requisition, must advise the shipper, in order to excuse itself from liability for failure to furnish cars.- Di Giorgio I. & S. Co. v. Pa. R. Co., 104 Md. 693, 65 Atl. 425.

[8] Unprecedented rush of business as justification.

Carrier not liable for delay caused by temporary excess of business,— see post, § 38, note [29].

Extraordinary accumulations of freight, offered suddenly and in unusual quantities, do not require a carrier to furnish sufficient cars at once, nor do more than furnish cars as fast as practicable, ratably and without discrimination.- Riddle Co. v. B. & O. R. Co., 1 Inters. Com. R. 701, 1 I. C. C. R. 372; St. Louis S. W. R. Co. v. Clay Gin Co., 77 Ark. 357, 92 S. W. 531.

Where it appears that under ordinary circumstances a railroad furnishes ample rolling stock for transportation of passengers and freight, delay in the transportation of goods is justifiable in an unusual press of business, provided no unfair preference is given to any shipper.Bouker v. L. I. R. Co., 89 Hun (N. Y.), 202, 35 N. Y. Supp. 23.

An unprecedented demand for cars is an excuse for failure of a carrier to furnish cars upon application.- Wibert v. N. Y. & E. R. Co., 19 Barb. (N. Y.) 36; affd. 12 N. Y. 245; St. Louis S. W. R. Co. v. Leder Bros., 79 Ark. 59, 95 S. W. 170; Galena & C. U. R. Co. v. Rae, 18 Ill. 488; Louisville & N. R. R. Co. v. Queen City Coal Co., 99 Ky. 217, 18 Ky. L. R. 126, 35 S. W. 626; Yazoo & M. V. R. Co. v. McKay, Miss. 44 So. 780; Yazoo & M. V. R. Co. v. Blum, 89 Miss. 242, 42 So. 282.

It is the duty of common carriers to furnish transportation facilities, for such goods as they undertake to carry, to all who apply in the regular and expected course of business, but where there is an unusual and unexpected press of business, such as the carrier could not by ordinary prudence have contemplated, he is excused for not having anticipated and provided against such extraordinary conditions.- St. Louis, I. M. & S. R. Co. v. Wynne Hoop Co., 81 Ark. 373, 99 S. W. 375; Houston & T. C. R. Co. v. Smith, 63 Texas, 322.

When a carrier has furnished itself with the appliances necessary to transport the amount of freight which may, in the usual course of events, be reasonably expected to be offered to it for carriage, taking into consideration the fact that at certain seasons more cars are needed, it has fulfilled its duty in that regard, and it will not be required to provide for such a rush of grain or other goods for transportation as may only occur in a given locality temporarily, or at long intervals of time. State ex rel. Crandall v. C. B. & Q. R. Co., 72 Neb. 542, 101 N. W. 23; State ex rel McComb v. C. B. & Q. R. Co., 71 Neb. 593, 99 N. W. 309.

A carrier cannot justify delay in handling local shipments on the ground of insufficiency of cars and great volume of traffic from distant or foreign points, when such condition was due to the carrier's own acts in offering special inducements to such traffic.- Branch v. Wilmington & W. R. Co., 77 N. C. 347.

It is the extent of business ordinarily done which properly measures the carrier's obligation to furnish transportation.- Ayres v. Ch. & N. W. R. Co., 71 Wis. 372, 37 N. W. 432.

[9] Duty to pro-rate.

Carriers' regulations as to transportation of private cars to be published in schedules,- see ante, § 28, note [18].

The provision of the Constitution of Colorado that "no railroad company shall give any preference to individuals, associations or corporations in furnishing cars or motive power" imposes no greater obligation on a carrier than the common law imposed.- Atchison, T. & S. F. R. Co. v. D. & N. O. R. Co., 110 U. S. 667, 4 Sup. Ct. R. (U. S.) 185, revg. s. c. 13 Fed. 546.

Under the provisions of Interst. Com. Act, § 3, it is the duty of a carrier, in furnishing cars along its line, where a limited number only can be supplied, to distribute the same impartially, without unjust discrimination or favoritism.-U. S. ex rel. Kingwood Coal Co. v. W. Va. Northern R. Co., 125 Fed. 252; affd. 134 Fed. 198.

Where the supply of cars is less than the demand, it is the duty of the carrier to pro-rate the supply among all the shippers, without unjust discrimination.-U. S. ex rel. Coffman v. Norfolk & W. R. Co., 109 Fed. 831.

In times of temporary car famine, a railroad can only be required to do its best and to treat its patrons without undue preference.- Hawkins v. Wheeling & L. E. R. Co., 9 Inters. Com. R. 212.

In the distribution of cars, a carrier may not discriminate between competitive and non-competitive points.- Hawkins v. L. S. & M. S. R. Co., 9 Inters. Com. R. 207; Hawkins v. Wheeling & L. E. R. Co., 9 Inters. Com. R. 212.

If a carrier accepts and uses cars owned by shippers or others, in a legal sense it adopts them as its own, and cannot discriminate as to other shippers by means of them.- Rice v. W. N. Y. & P. R. Co., 1 Inters. Com. R. 717, 792, 795, 811, 2 Inters. Com. R. 298, 4 I. C. C. R. 131.

That cars could be more profitably used, or meet the wants of a larger number of shippers elsewhere, does not justify refusing an applicant a fair allotment.- Riddle Co. v. N. Y. L. E. & W. R. Co., 1 Inters. Com. R. 787, 1 I. C. C. R. 594.

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