these statutes much advance in the development of this duty has been accomplished. Topic B. Proper Priorities in Service § 837. Imperative need of the company itself. In time of stress when the company involved has not sufficient facilities to meet all demands made upon it for service, it is not enough to say as matters were left in the last chapter that the company is excused from not meeting particular demands upon it. Being in public service still, it must always discharge its public duties so far as it is able, handling the business demanding its attention with proper regard to the exigencies of the whole situation. To give one example, it is sufficiently obvious that such service as the company itself needs in order to maintain its service for the benefit of all concerned has precedence over everything. Thus a railroad may give coal cars bringing its own coal supply to any point where the supply is low precedence over other shipments. But if it has failed in its primary duty to provide sufficient facilities for all the business that it should have anticipated would be offered, it cannot excuse its failure to serve its patrons promptly by urging that its facilities are now being used for its own imperative business. Thus a telegraph company will not be excused for delaying a private message by showing that its lines were being used for despatching train orders at the time it was attempted to forward the message in question, unless the court is clear that the company had provided lines enough to handle with the utmost promptness all the business which should have been foreseen.2 1 Louisville & N. R. R. Co. v. Queen City Coal Co., 13 Ky. Law Rep. 832 (1892). 2 Leavell v. Western Union Tele graph Co., 116 N. C. 211 (1894). See further, Western Union Telegraph Co. v. Swoveland, 8 Ind. App. 563, 42 N. E. 161 (1895). § 838. Emergency calls given precedence. In time of war troops and their equipment should be given the right of way over all other business. Probably the more efficient way of handling the situation would be to leave the experienced management in charge of moving the trains, but in case of exigency the military staff might assume complete control. And indeed at any time governmental business may be given precedence over private business. For in any real emergency the usual priorities should be set aside if necessary. Thus to save life nothing else should be considered, as in the case where passengers were moved from a burning station leaving freight cars to destruction. "Had they turned their attention to plaintiff's property, neglected other duties and left helpless women and children to their fate," said the Pennsylvania court, "it is just possible they might have succeeded in getting the three cars off the siding. They were not obliged, however, to sacrifice every feeling of humanity to the preservation of plaintiff's property." In cases of public calamities it may sometimes be necessary to give relief trains precedence over all other trains. Thus at the time of the Chicago fire, supplies to relieve the homeless population were rushed to the city, even passenger trains in the way being sideBut the commission may require a railroad to count cars devoted to supplying the railroad itself with coal for its own use against a coal shipper in his commercial allotment. Interstate Commerce Commission v. Illinois Central R. R. Co., 215 U. S. 452, 30 Sup. Ct. 155 (1910). This priority of the proprietor is confined to its needs in its public capacity. A railroad engaged in the coal business cannot prefer itself over its competitors. New York, N. H. & H. R. R. Co. v. 1 Illinois Cent. R. R. Co. v. Ashmead, 58 Ill. 487 (1871). But only in so far as the government use interferes with its general business: Illinois Cent. R. R. Co. v. McClellan, 54 Ill. 58, 5 Am. Rep. 83 (1870). 2 Pennsylvania R. R. Co. v. Fries, 87 Pa. St. 234 (1878). tracked. The unusual contingency it was said by the Michigan court justified this unusual procedure.1 Upon similar principles a water company is excused for temporarily failing to give its household customers a proper supply while the fire plugs are opened in that district to extinguish a fire.2 § 839. Personal requirements. It will usually be the case that personal service to a person waiting should be given before taking care of goods. It usually makes more difference if the passenger is kept waiting than if freight is. Thus by the general rule passenger business has priority over freight business.3 Indeed, in proper management passenger service should be separated from freight service, and separate trains run for the passengers. And a shipper cannot complain because his cattle cars are not attached to passenger trains when the line is cleared. When a public supply is being used both for domestic and manufacturing purposes as, for instance, water or gas, it would seem to be evident that in time of shortage the domestic demand should be preferred to the commercial demand, because the cutting off of domestic supply would involve personal hardship, an element not so strongly present in commercial use. § 840. Perishable freight. 6 By the general rule as between two offerings of freight, perishable freight should be sent ahead of other freight. Live stock constitutes the plainest example of freight which should have priority. And next in order come meats 1 Michigan Central R. R. Co. v. Burroughs, 33 Mich. 6 (1875). 2 Campbell v. East London Waterworks, 26 L. T. (N. S.) 475 (1872). 3 Farnsworth v. Groot, 6 Cow. 698. 4 People v. St. Louis, A. & T. H. Ry. Co. (Ill.), 45 N. E. 824 (1896). 5 Briddon v. Great Northern Ry. Co., 28 L. J. Exch. 51 (1858). Mayor, etc., of Town of Boonton v. United Water Supply Co. (N. J. Law), 64 Atl. 1064 (1906). and fish, fruit and vegetables, for the transportation of which a special equipment and a fast schedule are imperatively demanded. In the leading New York case,1 the court said: "The question how the carrier was employed, and how he used and employed his means of transportation during any given period when property was delayed, would always be a proper subject of inquiry, and that on this inquiry proof that his means of transportation were employed in transporting perishable property, in preference to other property received at the same time, would always be held a sufficient excuse for delay. The judge so states the rule. The preference as he states it is between property received at the same time." Consequently in a late New York case it was held that hay not being perishable might be delayed in transit in time of stress in favor of other goods.2 § 841. Business needs of the country. Even as between the same commodities there may be 1 Marshall v. New York C. R. R. Co., 45 Barb. (N. Y.) 502 (1866). See also Peet v. Chicago & N. W. Ry. Co., 20 Wis. 594, 91 Am. Dec. 446 (1866). 2 Frey v. New York C. & H. R. R. R. Co., 114 App. Div. 747, 100 N. Y. Supp. 225 (1906). But see State ex rel. v. Chicago & N. W. Ry. Co. (Neb.), 120 N. W. 165 (1909). In Swetland v. Boston & A. R. R. Co., 102 Mass. 270 (1869), it was said that the carrier is not bound to give such preference to perishable freight. And in Central of Ga. Ry. Co. v. Augusta Brokerage Co., 122 Ga. 646, 50 S. E. 473 (1905), it was pointed out that in making arrangements for through routing and rating a railroad could prefer one commodity over another. Where there is a press of business, perishable goods, or goods the inherent character of which is such as to render them peculiarly liable to serious injury from delay, have been considered of such exceptional character, as to authorize a reasonable preference as to expedition in hauling them, over freight not of such a character. Southern Ry. Co. v. Atlanta Sand & Supply Co. (Ga.), 68 S. E. 807 (1910). But this rule cannot be used as a cloak for discrimination. State v. Chicago & N. W. Ry. Co. (Neb.), 120 N. W. 165 (1909). priorities to be observed in emergencies. It is conceivable that in time of shortage, coal for a gas works necessary for the convenience of a whole community could be given. precedence over a manufacturer. Goods of special classes which have a brief market might be preferred to staple commodities which are always salable. If 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. But on the other hand it would be safe generalization that no preference is justifiable between goods of the same nature, unless some such public interest appears. Not even a Southern carrier can give King Cotton preference over lumber, as a recent case holds. But it seems that where a carrier must make a choice for the time being between through business and local business, the through business may be given the preference, as it involves the meeting of connections or the disarrangement of subsequent schedules, while the delay of local business has no further consequences.2 § 842. Priority of accepted business. It should, however, be pointed out that these rules of priority which have just been considered are usually applicable only to the situation where business is being offered at the same time in competition. Business already accepted must generally be carried through in accordance 1 Ocean Steamship Co. v. Savannah, L. W. & S. Co. (Ga.), 63 S. E. 577 (1909). 2 Chicago, St. Louis & Pittsburg R. R. Co. v. Wolcott, 141 Ind. 267, 39 N. E. 451 (1894). Private telegrams must give way to the transmission of intelligence of public and general interest and to communications for and from officers of justice. Western Union Telegraph Co. v. Ward, 23 Ind. 377, 85 Am. Dec. 462 (1864). A telegraph company should make no discrimination between private dispatches and those of any other character, except messages of public and general interest and those to and from officers of justice. Western Union Tel. Co. v. Swoveland, 42 N. E. 161, 8 Ind. App. 563 (1894). |