State ex rel. McComb v. Chicago, Burlington & Quincy Railroad Company

• Decision Date: 07 April 1904
• Docket Number: 13,478
• Citation: 99 N.W. 309,71 Neb. 593
• Parties: STATE OF NEBRASKA, EX REL. C. W. MCCOMB, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY
• Court: Nebraska Supreme Court

99 N.W. 309

71 Neb. 593

STATE OF NEBRASKA, EX REL. C. W. MCCOMB, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY

No. 13,478

Supreme Court of Nebraska

April 7, 1904

ORIGINAL application for a writ of mandamus to compel respondent to furnish facilities for shipping grain. Writ denied.

WRIT DENIED.

Smyth & Smith, for relator.

J. W Deweese and Frank E. Bishop, contra.

LETTON C. DUFFIE and KIRKPATRICK, CC., concur.

OPINION

LETTON, C.

This is an original application for a writ of mandamus in this court. On the 22d day of August, 1903, C. W. McComb, a farmer, living about 4 miles from Wilsonville, in Furnas county, Nebraska, began the business of buying and shipping grain at Wilsonville in competition with 2 elevators there situated, one owned by S. A. Austin and the other by the Central Granaries Company, a corporation. From the day he began business until about September 5, he obtained all the cars from the respondent necessary for the carrying on of his business. He alleges in his application that, on or about the 1st day of October, 1903, and on divers dates since then, he requested that the respondent furnish him all the cars he needed in his business or that, if it could not do that, it supply him with 2 cars for each 3 furnished each of the elevators. He alleges that the volume of his business is such that he requires 2 cars for each 3 used by each elevator. He says that it refused to furnish him cars as he required and that, during the 2 weeks ending October 18, 1903, it supplied him with only 2 cars, while it supplied the elevators with 23 cars. That he demanded of the respondent a just proportion of the empty grain cars available at Wilsonville, but that the company, through its agent, declared that the elevators should have the preference. He avers that such discrimination will ruin his business, and he prays for a peremptory writ of mandamus commanding the respondent to furnish him, whenever demanded, with 2 cars to each 3 furnished each of the elevators; that the respondent be commanded to afford him equal facilities in all respects with each elevator, and to cease all discrimination of any kind and character against him in favor of the elevators.

The answer of the respondent to the alternative writ alleges, in substance, that there are 2 large and well equipped grain elevators at Wilsonville; that the relator McComb has no elevator, shovel house or any convenience adjacent to the track for loading of grain into the cars; that, owing to the manner of his loading, he occupies a whole day for loading 1 car, while the elevators load cars at the rate of 1 car in 2 hours, and, consequently, the elevators need and can use many more cars than he could handle. It further says that the demand for cars about the first day of September, 1903, was so great that it was, temporarily, impossible for the company to furnish sufficient cars; that it used every reasonable effort to procure cars and, since it could not obtain all that were demanded at Wilsonville, it adopted the plan of dividing the cars between the 2 elevators and the relator on an equitable and just basis, in accordance with the relative amount of grain handled by the elevators and the relator, and taking into consideration the facilities for handling of grain by each of said shippers. It denies that, during the 2 weeks ending October 18, 1903, the relator was supplied with but 2 cars, while the elevators had 23, but alleges that the relator had 5 cars during this period, while 1 elevator was furnished with 7 and the other with 8 cars. It denies any discrimination between the relator and the elevators, and alleges that, although at the time it was well equipped with the necessary cars for handling the ordinary business coming to the railroad, yet, at that time, the demand for cars in the shipment of grain was unusual, and that, temporarily, all the cars demanded could not be furnished.

It is the duty of a railroad company to provide itself with all the instrumentalities and facilities necessary to carry on the business for which it is organized. It must furnish the necessary cars to transport the goods which are offered to it for carriage, but to this rule there is an exception. When the carrier has furnished itself with the appliances necessary to transport an 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 any given locality temporarily or at long intervals of time.

In this connection, the testimony of Mr. Calvert, the superintendent of the lines of the respondent west of the Missouri river, is that the railroad company is well supplied with cars. That at times the cars are so plentiful that they have difficulty in storing them, and that usually it has more cars than it needs in taking care of the business offered; that a scarcity of cars existed at the time the relator complains of, and that at the present time cars are comparatively plentiful. He testifies that frequently, by the manner of doing business by grain dealers, shipments are delayed until a certain time when the markets will justify a quick sale, and this causes a congestion of business on the railroad. That he has frequently known on the Burlington & M. R. R. Co. in Nebraska upwards of 2,000 box cars held for orders up to the 20th of the month, and by the 26th the railroad company would be probably that many cars short of being able to fill its orders. That at times there is a rush and at times there is a dearth of business, but that the railroad company has enough cars to take care of the business. These facts are not denied. Under this state of facts, the...