Mr. Justice Eakin
delivered the opinion of the court.
1. The contention of the defendant is that in the service rendered to plaintiff it was' not acting as a common carrier; that the service rendered was not one required of it as a common carrier, but was properly the subject of contract. It is admitted that the service was rendered under a contract with plaintiff; but plaintiff contends that defendant cannot, by contract, avoid the performance of its duties as a common carrier, which is true if the service was one required of it as a common carrier.
2. That raises the question whether a common carrier can be required to stop trains to unload freight or passengers at places other than such as it may choose and hold out as stopping places. This was the only question involved in Northern Pacific R. R. Co. v. Dustin, 142 U. S. 492 (35 L. Ed. 1092, 12 Sup. Ct. Rep. 283), a case where the railroad company laid out a town called North Yakima on its own ground, a little north of Yakima City, the county seat of the. county-in which it is situated, in the State of Washington. It is held by that case that mandamus will not lie to compel a railroad company to build a station or to maintain a stopping place, unless there is a specific statutory duty to do so, and a breach of that duty. “To hold that the directors of this corporation, in determining the number, place, and size of its stations, # -* can be controlled by the courts by writ of mandamus, would be inconsistent with many decisions of high authority. * * Each company in the state has the legal right to locate its own stations, and, so far as statutory regulations are concerned, is not required to use any other.” And this principle is conceded by a dissenting opinion in that case, where it is said: “The question is not whether a railroad company can be compelled to build a depot and stop its trains at any [111]*111place where are gathered two or three houses or families.” But the dissent is based upon the ground that for private interests the company built up a new town at the expense of the old, and for this subservience of its public duty to its private interest the court may give redress: See, to the same effect, Atchison etc. R. Co. v. Interstate Commerce Commission (C. C.), 188 Fed. 229 (200 U. S. 536, 50 L. Ed. 585, 26 Sup. Ct. Rep. 330). In Hutchinson, Common Carriers, Sections 48, 62, it is stated that to constitute one a common carrier in a particular case “the party must be under such a legal obligation to carry that an action will lie against him for refusal without sufficient excuse.” And in Elliott, Railroads, Section 1396, provides: “While a railroad company cannot, by contract or otherwise, change the nature of its public duties or obligations, it may, where it is not under a duty or obligation to the public, contract to perform services in the character of a private carrier of goods or passengers. In other words, where there is a right to refuse to perform the services requested, there is a right to contract for their performance in a different capacity from that which rests upon a railroad company as a public or common carrier.” This is also held in Santa Fe Ry. Co. v. Grant Bros., 228 U. S. 177 (57 L. Ed. 787, 33 Sup. Ct. Rep. 474), in which the case of Santa Fe etc. Ry. Co. v. Grant Bros. Co., 13 Ariz. 186 (108 Pac. 467), is reversed on another point. In the former case, in speaking of the rule that a common carrier is not permitted to drop its character and fix its liability by contract, Mr. Justice Hughes says: “Manifestly, this rule has no application when a railroad company is acting outside the performance of its duty as a common carrier. In such case, it is dealing with matters involving ordinary considerations of contractual relation; those who choose to enter into engagements with it are not at a disadvantage; and its stipulations, even [112]*112against liability for its own neglect, are-not repugnant to the requirements of its public service. The rule extends no further than the reason for it. It is apparent that there may be special engagements which are not embraced within! its duty as a common carrier, although their performance may incidentally involve the actual transportation of persons and things, whose carriage in other circumstances might be within its public obligation”: Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 440 (32 L. Ed. 788, 9 Sup. Ct. Rep. 469). And where the railroad company is sued in the capacity of a common carrier, the plaintiff will fail if the evidence shows that the undertaking to carry was as a private carrier: Chicago etc. R. Co. v. Wallace, 66 Fed. 506 (30 L. R. A. 161, 14 C. C. A. 257). The reasoning of the rule stated in Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397 (32 L. Ed. 788, 9 Sup. Ct. Rep. 469), as to carrying some commodities which it is not its business to carry, is just as applicable to delivery of freight at a place at which it is not its business to deliver.
3. The legislature of this state has not determined where a common carrier must establish stations. By Section 6897, L. O. L., the company is required to provide and maintain adequate passenger and freight depots. Thus if the services given by the company’s depots are not adequate for the accommodation of the public, the commission may require that a new depot be established at a place where such necessity requires; but by Section 6888, L. O. L., the schedule of rates provided for “ shall plainly state the places upon its line * * between which passengers and property will be carried”- — leaving it optional with defendant to determine its stations. This is the extent of the duty in that regard until changed by law. Unless a station is required by the railroad.commission at a place where none is named in the tariff schedule, the company is [113]*113under no obligation to discharge freight at a point between the stations designated in the schedule.
4. The only other question necessary for consideration is whether the rate schedule of the defendant company requires defendant to discharge freight at localities not mentioned in the schedule, or whether tho railroad may, as a private carrier, contract for the delivery of freight between stations without violating the statute or rate schedule. Plaintiff’s counsel, as well as the court, rested the case on the construction of the language: “Rates named herein * # will apply to directly intermediate points,” contained in “ (b) intermediate application,” under the general heading, “Application of Rates,” on page 13 of the schedule, as meaning that the rates shall apply to all localities between stations. "We think that language will not bear such construction.
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Mr. Justice Eakin
delivered the opinion of the court.
1. The contention of the defendant is that in the service rendered to plaintiff it was' not acting as a common carrier; that the service rendered was not one required of it as a common carrier, but was properly the subject of contract. It is admitted that the service was rendered under a contract with plaintiff; but plaintiff contends that defendant cannot, by contract, avoid the performance of its duties as a common carrier, which is true if the service was one required of it as a common carrier.
2. That raises the question whether a common carrier can be required to stop trains to unload freight or passengers at places other than such as it may choose and hold out as stopping places. This was the only question involved in Northern Pacific R. R. Co. v. Dustin, 142 U. S. 492 (35 L. Ed. 1092, 12 Sup. Ct. Rep. 283), a case where the railroad company laid out a town called North Yakima on its own ground, a little north of Yakima City, the county seat of the. county-in which it is situated, in the State of Washington. It is held by that case that mandamus will not lie to compel a railroad company to build a station or to maintain a stopping place, unless there is a specific statutory duty to do so, and a breach of that duty. “To hold that the directors of this corporation, in determining the number, place, and size of its stations, # -* can be controlled by the courts by writ of mandamus, would be inconsistent with many decisions of high authority. * * Each company in the state has the legal right to locate its own stations, and, so far as statutory regulations are concerned, is not required to use any other.” And this principle is conceded by a dissenting opinion in that case, where it is said: “The question is not whether a railroad company can be compelled to build a depot and stop its trains at any [111]*111place where are gathered two or three houses or families.” But the dissent is based upon the ground that for private interests the company built up a new town at the expense of the old, and for this subservience of its public duty to its private interest the court may give redress: See, to the same effect, Atchison etc. R. Co. v. Interstate Commerce Commission (C. C.), 188 Fed. 229 (200 U. S. 536, 50 L. Ed. 585, 26 Sup. Ct. Rep. 330). In Hutchinson, Common Carriers, Sections 48, 62, it is stated that to constitute one a common carrier in a particular case “the party must be under such a legal obligation to carry that an action will lie against him for refusal without sufficient excuse.” And in Elliott, Railroads, Section 1396, provides: “While a railroad company cannot, by contract or otherwise, change the nature of its public duties or obligations, it may, where it is not under a duty or obligation to the public, contract to perform services in the character of a private carrier of goods or passengers. In other words, where there is a right to refuse to perform the services requested, there is a right to contract for their performance in a different capacity from that which rests upon a railroad company as a public or common carrier.” This is also held in Santa Fe Ry. Co. v. Grant Bros., 228 U. S. 177 (57 L. Ed. 787, 33 Sup. Ct. Rep. 474), in which the case of Santa Fe etc. Ry. Co. v. Grant Bros. Co., 13 Ariz. 186 (108 Pac. 467), is reversed on another point. In the former case, in speaking of the rule that a common carrier is not permitted to drop its character and fix its liability by contract, Mr. Justice Hughes says: “Manifestly, this rule has no application when a railroad company is acting outside the performance of its duty as a common carrier. In such case, it is dealing with matters involving ordinary considerations of contractual relation; those who choose to enter into engagements with it are not at a disadvantage; and its stipulations, even [112]*112against liability for its own neglect, are-not repugnant to the requirements of its public service. The rule extends no further than the reason for it. It is apparent that there may be special engagements which are not embraced within! its duty as a common carrier, although their performance may incidentally involve the actual transportation of persons and things, whose carriage in other circumstances might be within its public obligation”: Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 440 (32 L. Ed. 788, 9 Sup. Ct. Rep. 469). And where the railroad company is sued in the capacity of a common carrier, the plaintiff will fail if the evidence shows that the undertaking to carry was as a private carrier: Chicago etc. R. Co. v. Wallace, 66 Fed. 506 (30 L. R. A. 161, 14 C. C. A. 257). The reasoning of the rule stated in Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397 (32 L. Ed. 788, 9 Sup. Ct. Rep. 469), as to carrying some commodities which it is not its business to carry, is just as applicable to delivery of freight at a place at which it is not its business to deliver.
3. The legislature of this state has not determined where a common carrier must establish stations. By Section 6897, L. O. L., the company is required to provide and maintain adequate passenger and freight depots. Thus if the services given by the company’s depots are not adequate for the accommodation of the public, the commission may require that a new depot be established at a place where such necessity requires; but by Section 6888, L. O. L., the schedule of rates provided for “ shall plainly state the places upon its line * * between which passengers and property will be carried”- — leaving it optional with defendant to determine its stations. This is the extent of the duty in that regard until changed by law. Unless a station is required by the railroad.commission at a place where none is named in the tariff schedule, the company is [113]*113under no obligation to discharge freight at a point between the stations designated in the schedule.
4. The only other question necessary for consideration is whether the rate schedule of the defendant company requires defendant to discharge freight at localities not mentioned in the schedule, or whether tho railroad may, as a private carrier, contract for the delivery of freight between stations without violating the statute or rate schedule. Plaintiff’s counsel, as well as the court, rested the case on the construction of the language: “Rates named herein * # will apply to directly intermediate points,” contained in “ (b) intermediate application,” under the general heading, “Application of Rates,” on page 13 of the schedule, as meaning that the rates shall apply to all localities between stations. "We think that language will not bear such construction. In the first place, the schedule was prepared by the railroad company as a compliance with the statute, and was not prepared by the legislature or the railroad commission, and the defendant would not include anything in it that would appear as a consent to receive freight for delivery anywhere except at its designated stations; secondly, the station index in the freight schedule bears the heading:11 Points on Southern Pacific Co. (Oregon lines) (except as shown) from which rates apply” — followed by the names and index numbers of the stations. Thus the schedule refers to the stations as points on the road, and therefore the words “points” in “(b) intermediate application” must be understood to refer to the stations; and the term “directly intermediate points” above quoted, as explained by J. H. Mulchay, the assistant general freight agent of the defendant, has reference to the special commodity rates contained in Section 2 of the schedule, beginning at page 24 and covering about seven pages, and possibly to some [114]*114other rates in which only certain points or stations are named; there being many intermediate stations to which' the rate to the point named will apply. The circumstances of this case show the reasonableness of the contention that defendant rendered the service as a private carrier.
5. There was no siding at the county courthouse building, and therefore the cars containing the stone blocked the main track during the unloading, and the engine and train crew were required to remain with the loaded cars and to promptly remove them. The defendant had the right and did refuse to deliver the stone at the points desired by plaintiff until the contract was made for the payment of extra compensation. It was an unusual and extraordinary service not contemplated by the statute nor by the rate schedule, and' was not a violation of the defendant’s duties as a common carrier. To make a special contract for the delivery of the stone, it included, not only the haul, but the extraordinary and unusual service.
The court erred in sustaining the demurrer to the amended answer, and also in denying the motion for a judgment of nonsuit.
The judgment is reversed, and the case is remanded to the lower court, with directions to sustain the motion for a nonsuit. Reversed "With Directions.
Mr. Chiee Justice McBride, Mr. Justice Bean and Mr. Justice McNary concur.