with the engagements already made without regard to its character. Thus when a railroad has already accepted more freight than it can promptly handle, it should refuse to receive any more. Even if the freight that has been accepted is not perishable when the freight that is being offered is perishable, it should still refuse. Generally speaking, accepted business of every sort must be attended to ahead of offerings which would have higher claim if they were competing on an equal basis. It should be conceded, however, that in a great emergency new business might be given precedence.2

Topic C. Assignment of Available Facilities

§ 843. Right to assign facilities.

As the provision of facilities is primarily a question of management, the decision as to the assigning of accommodations should be left to those providing the services unless they act outrageously. Thus the inn, though a public house, does not become in any sense the house of the guests; the innkeeper continues to be the housekeeper, and the management of the premises remains absolutely and at all times in his hands, subject only to the right of the guests to receive reasonable entertainment. It follows that the innkeeper, in the course of his management, has the absolute right to assign the guest to any proper

1 Iowa.-Hewett v. Chicago, B. & Quincy Ry. Co., 63 Iowa, 611, 19 N. W. 790 (1884).

Illinois. Michigan Cent. R. R. Co. v. Curtis, 80 Ill. 324 (1875). Mississippi.-Heirn v. McCaughan, 32 Miss. 17, 66 Am. Dec. 588 (1856).

Missouri.-State v. Young, 119 Mo. 495, 24 S. W. 1038 (1894).

New York.-Strough v. New York Cent. & H. R. R. R. Co., 181 N. Y. 533, 73 N. E. 1133, aff'd 92

App. Div. 584, 87 N. Y. Supp. 30 (1905); Tierney v. New York C. & H. R. R. R. Co., 76 N. Y. 305 (1879).

Texas.-Gulf, C. & S. F. Ry. Co. v. McAulay, 26 S. W. 475 (1894).

West Virginia.-McGraw v. B. & O. R. R. Co., 18 W. Va. 361, 41 Am. Rep. 696 (1881).

Wisconsin.-Peet v. Chicago & N. W. Ry. Co., 20 Wis. 594, 91 Am. Dec. 446 (1866).

2 See §§ 837 et seq., supra,

" 2

chamber, although the traveler has expressed a strong preference to another. "All that the law requires of him is to find for his guests reasonable and proper accommodation, if he does that he does all that is requisite.' So, too, a carrier in the regular conduct of his business may assign seats to his passengers. This is peculiarly true of a ferryman who wishes to keep his boat balanced. There is fundamental truth in what an Illinois court said in such a case: "The ferryman must be the Captain. Upon these principles it was held in a late case that where several street cars are standing at a depot waiting for passengers from an incoming railway train, a passenger had no right to complain because he was directed to take passage in one car, instead of another, so long as there was no unreasonable discrimination shown.3 Indeed in a recent case it was said to be the duty of a steamship company to assign berths to passengers upon their embarking without discrimination in order of application.1

§ 844. Separate accommodations.

As all that the law requires is that each person served shall have reasonable accommodation, no legal objection can be taken to the separation of different classes of passengers. Thus it has several times been held that a railroad

1 England.-Fell v. Knight, 8 M. & W. 269, 10 L. J. Ex. 277, 5 Jur. 554 (1841); Scrivenor v. Reed, 6 W. R. 603 (1858).

Canada.-Doyle v. Walker, 26 Up. Can. (Q. B.) 502 (1867).

Claypool v. McAllister, 20 Ill. 504 (1858), citing Fisher v. Clisbee, 12 Ill. 344 (1851).

Dobbins v. Little Rock Ry. & El. Co., 79 Ark. 85, 95 S. W. 794 (1906).

• Patterson v. Steamship Co., 140 N. C. 412, 53 S. E. 224, 5 L. R. A.

(N. S.) 1012, 111 Am. St. Rep. 848 (1906).

See Texas & Pac. Ry. Co. v. Pearl, 3 Wills. 4 (1885), holding that a railroad has the power to assign seats to passengers.

It follows that the act of the conductor in requesting a passenger to go on the platform of a coach because of the crowded condition of the coach is an act done in managing the train. Central of Ga. Ry. Co. v. Brown (Ala.), 51 So. 565 (1910).

may set aside cars for women.1 As to this a leading case says: "We think a regulation setting apart a car for ladies, or gentlemen accompanied by ladies a reasonable regulation. A passenger may not dictate where he will sit, or in which car he will ride. If he is furnished accommodations equal in all respects to those furnished other passengers on the same train he cannot complain." There must be no general discrimination in assigning people to such special cars. Thus a railroad cannot exclude colored women from the ladies' car. But in special instances the power of the conductor to assign accommodations remains. Thus if the other cars are crowded the conductor may in his discretion admit such other passengers as he may choose to the ladies' car.*

§ 845. Changing accommodations.

1 United States.-Brown v. Memphis & C. Ry. Co., 5 Fed. 499 (1880).

Iowa.-McKinley v. Chicago & N. W. Ry. Co., 44 Iowa, 314, 24 Am. Rep. 748 (1877).

It would seem to follow from the power of the management to assign accommodations, that the facilities origM. & So. Ry. Co., 75 Ark. 242, 87 S. W. 127, 70 L. R. A. 212 (1905), it was held that a passenger who without protest to the conductor, obeyed the directions of a porter to ride in a smoking car, although his ticket entitled him to first-class passage, could not hold the carrier liable for sickness caused by the continuous ride in its bad atmosphere.

New York.-Peck v. New York C. & H. R. R. R. Co., 70 N. Y. 587 (1877).

Missouri.-Chilton v. St. Louis & I. M. Ry. Co., 114 Mo. 88, 21 S. W. 457, 19 L. R. A. 269 (1892).

2 Memphis & C. R. R. Co. v. Benson, 85 Tenn. 627, 4 S. W. 5, 4 Am. St. Rep. 776 (1887).

In Southern Ry. Co. v. Wood, 114 Ga. 159, 39 S. E. 922 (1901), it was held however that, where plaintiff and her children were not given the accommodations which their tickets entitled them to have, but were compelled by the conductor to go into a dirty smoking car and were thereby made very sick, they were entitled to recover damages.

inally given might be changed. It is well established, for instance, that an innkeeper after having assigned a guest to one room may, at will, change his room and put him into a different one, provided the new room is also a reasonable accommodation. In the analogous case of the sleeping car, the authorities are in conflict; 2 but it would seem to be the better rule that the company might change a berth once assigned if equal accommodation for the journey be given. However, it has been held that if a passenger has once settled himself in a seat the conductor should not disturb him merely for his personal convenience. And in another recent case it was held that where a shipper was directed by the carrier's agent to load hogs in a car already assigned for other service, the carrier is responsible for such damages as naturally result from the removal of the hogs."

§ 846. Insistence upon the unit of service.

That public service is generally conducted upon some

1 Alabama.-Hervey v. Hart, 149 Ala. 604, 42 So. 1013, 9 L. R. A. (N. S.) 213, 123 Am. St. Rep. 67 (1906).

England.-Doyle v. Walker, 26 U. C. (Q. B.) 502 (1867).

2 United States.-Duval v. Pullman P. C. Co., 62 Fed. 265, 23 U. S. App. 527, 33 L. R. A. 715, 10 C. C. A. 331 (1894), permitting change of berth. Mann Boudoir Car Co. v. Dupre, 54 Fed. 646, 13 U. S. App. 183, 4 C. C. A. 540, 21 L. R. A. 289 (1893), probably goes too far in permitting a change to be made after the passenger had retired.

Indiana.-Pullman P. C. Co. v. Taylor, 65 Ind. 153, 32 Am. Rep. 57 (1879), forbidding change of berth.

'McLain v. St. Louis & G. Ry. Co., 131 Mo. App. 733, 111 S. W. 835 (1908).

4

Weisinger & Son v. Southern Ry. Co., 129 Ky. 592, 112 S. W. 660 (1908).

Only the conductor can insist upon a passenger removing hand baggage from a seat which he is holding without right. See Thorpe v. New York Central & H. R. R. R. Co., 76 N. Y. 402, 32 Am. Rep. 325 (1879).

Query whether a passenger may so reserve a seat by putting his hand baggage in it that he may forcibly retake the seat from an intruder. See case cited in 57 Albany L. J. 19.

unit basis has already been remarked; and upon this unit both the proprietor and the public may insist. Thus a water company can compel a customer to take for the established period provided it is reasonable.1 On the other hand the customer can refuse to commit himself beyond the reasonable period thus defined, for the company cannot demand that he shall take more than the established unit. In innkeeping nowadays the sleeping room is the unit. A traveler cannot therefore ask the proprietor to let him sleep in an unused bed in a room already taken by a guest. The case of the sleeping car is somewhat peculiar in this respect. It seems that the company offers in the alternative either the single berth or the entire section; and the traveler may probably insist upon having one or the other at his election. It seems therefore that a car company may sell a whole section to a single applicant, and justify the refusal to assign the upper berth, unused by the purchaser, to a passenger applying for it later. 4

1 Compare Harbison v. Knoxville Water Co., 53 S. W. 993 (1899), holding requirement that water must be taken by the quarter reasonable, with Rockland Water Co. v. Adams, 84 Me. 472, 24 Atl. 840, 30 Am. St. Rep. 368 (1892), holding requirement that water must be taken by the year unreasonable.

2 See Wheeler v. Northern Colo. Irr. Co., 10 Colo. 582, 17 Pac. 487, 3 Am. St. Rep. 603 (1887), holding that an irrigation company cannot compel a land owner to commit himself for ten years.

But a telephone company may make its unit six months instead of three months. Buffalo County Telephone Co. v. Turner, 82 Neb.

841, 118 N. W. 1064, 19 L. R. A. (N. S.) 693, 130 Am. St. Rep. 699 (1908).

3 See Browne v. Brandt (1902), 1 K. B. 696; Fell v. Knight, 8 M. & W. 269 (Eng.), 10 L. J. Ex. 277, 5 Jur. 554 (1841).

4 See Searles v. Mann. Boudoir C. Co., 45 Fed. 330 (1891), holding that a whole section may be reserved in a sleeping car.

Legislation requiring the car company to give the passenger the advantage of the section at the price for the lower berth when the upper berth is unsold is unconstitutional interference. State v. Redman, 134 Wis. 89, 114 N. W. 137 (1908).