Wood, J.,
(after stating the facts). (1) The appellee contends that the undisputed evidence shows that the appellee was not the owner of the staves on which the demurrage is claimed until the staves had been delivered to it on board the oars of the St. Louis, Iron Mountain & Southern Railway Company at Camden, or Lester, Arkansas. Under the evidence, this was a question of fact for the jury, and not one of law for the court. There was testimony on behalf of the appellant from which a jury would have been warranted in finding that the appellee had waived the provision of the contract with Hamlin requiring him to deliver the staves f. o. b. cars of the Iron Mountain at Camden or Lester, .and had accepted the staves when loaded on appellant’s cars on its river track. There was considerable testimony bearing on this issue, which it could serve no useful purpose to set forth. Suffice it to say that the appellant was entitled to have this issue submitted to the jury.
The only remaining question is as to whether or not the court erred in holding that the refusal of the appellant to switch, the two oars of staves in controversy was such an unjust discrimination against the appellee as to prevent the appellant from recovering judgment for the demurrage claimed, conceding that such demurrage was due appellant by the .appellee.
On behalf of the (appellant there was testimony tending to show that the spur track on which the cars in controversy were placed wias not put in for the purpose of receiving freight from boats or barges on the river; that it was put in as ;an industrial track for the National Cooperage Company, whose plant w)as situated about 300 yards from the landing on the river. It was shown that the appellant had a switching arrangement for industries located on its line, or reached by its connections. Appellant introduced its tariff No. 3381, which provided as follows : ‘ ‘ The nates of switching provided in the tariff are for services within yard limits, and apply only in the case of through shipments from or to Camden, Arkansas. No rates are provided for what may be designated as ‘Local Town Switching, ’ and we will not undertake to perform such switching' service. 'Switching performed by St. Louis S. W. Ey.”
It was shown that under this regulation appellant switched through carloads to and from industries located on or reached toy its own rails or its connection with the St. Louis, Iron Mountain & Southern Eailway at the rate of $2 per car, but that it did not switch for its connection with the St. Louis, Iron Mountain & Southern Eailway carloads to its public loading and delivery track, nor did it place cars for loading on such public loading or delivery track for shipment via the .St. Louis, Iron Mountain & Southern Eailway. It provided this river track for its own exclusive use.
A witness testified that where appellant switched a oar for the St. Louis, Iron Mountain & Southern Eailway to an industry or warehouse located on or reached by its •track for partial loading and the car is returned to the St. Louis, Iron Mountain & Southern Eailway with the remainder of the load, the regular switching charge will be assessed for switching each wiay, on the same principle that appellant charged for .a loaded car in and a loaded car out as per its rule. Where a car was placed to load for forwarding by the St. Louis, Iron Mountain & Southern Eailway and the shipper ordered an additional move or moves to complete the loading, a switching charge of $2 per car was assessed for each move after the original placing, under its tariff regulations. The witness then explained that under its tariff .appellant could switch for •the National Cooperage Company, because it was an industry having its plant located on appellant’s spur track, but that it could not, under its tariff regulations, switch cars from its team or house track to the Iron Mountain track except for industries located on its line. Staves which came in by boat 'and were unloaded at the wharf and then hauled to appellant’s river or team track, and there loaded on oars to be shipped over the Iron Mountain would not be switched by the .appellant from its river track to the Iron Mountain track without a charge for switching under its tariff rates; that freight which came in by water, going to points on appellant’s own line or connections, appellant would carry lat the regular tariff rate, but would not do town switching that goes to the Iron Mountain; that was the drayman’s business.
The court was in error in holding that because the appellant made a distinction between shippers not having industries located on its spur or team track, and those who did have industries thus located, that it was guilty of unjust discrimination which would prevent its recovery in this suit.
(2) Now, the appellee did not have any plant for the manufacture of staves situated on appellant’s river or spur track. The National 'Cooperage Company did have such a plant. The service in the way of spur track facilities which the appellant offered to industries located on its own line at the city of 'Camden was a service which it was not bound to render all shippers who might offer •articles for shipment at points along this spur track. This extra inducement to have industries located .along appellant’s line was in 'the sphere of legitimate enterprise to increase its own business, and this service was outside of its ordinary duties ias a common carrier.
(3) Under the statute providing that no unjust or undue ’discriminations shall be made, in charges for or in facilities for transportation of freight or passengers within the State (Kirby’s Digest, section 6722), there can be no unjust or undue discrimination between shippers that are not similarly situated so long as a like service is extended to shippers who are in the same or like situation. Little Rock & Fort Smith Ry. v. Oppenheimer, 64 Ark. 271. If appellee had had a plant located on appellant’s river or spur track at Camden, and the appellant had not given to the appellee precisely the same service that it gave to the National 'Cooperage Company in the way of facilities and charges for the transportation of .freight, then appellee’s contention would be sound. But, as appellee had no such plant upon appellant’s .river track, it was not discriminated against because appellant allowed the National Cooperage Company the facilities of its river or spur track, but would not allow these facilities to other shippers or allow their use to other shippers, not in the same situation, upon different terms than those imposed upon the National Cooperage Company.
Learned counsel for the appellee insist in their brief “that these two carloads of staves were loaded at the 'Cotton Belt freight station at 'Camden, a point in Arkansas, and the appellant was requested to issue a through way-bill and ship them to Arkadelphia, another point in Arkansas, and from appellant’s station at Camden to the station at Arkadelphia there was a continuous line of railroad, .all of it within the State of Arkansas.” But we do not so understand the facts. The two cars of staves in controversy were not loaded at the Cotton Belt freight station at Camden. Appellee’s .answer and the uncontroverted evidence shows that the oars “named and mentioned in plaintiff’s complaint had been placed at a point in or near Camden on appellant’s river or spur track about a mile from appellant’s freight station.”
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Wood, J.,
(after stating the facts). (1) The appellee contends that the undisputed evidence shows that the appellee was not the owner of the staves on which the demurrage is claimed until the staves had been delivered to it on board the oars of the St. Louis, Iron Mountain & Southern Railway Company at Camden, or Lester, Arkansas. Under the evidence, this was a question of fact for the jury, and not one of law for the court. There was testimony on behalf of the appellant from which a jury would have been warranted in finding that the appellee had waived the provision of the contract with Hamlin requiring him to deliver the staves f. o. b. cars of the Iron Mountain at Camden or Lester, .and had accepted the staves when loaded on appellant’s cars on its river track. There was considerable testimony bearing on this issue, which it could serve no useful purpose to set forth. Suffice it to say that the appellant was entitled to have this issue submitted to the jury.
The only remaining question is as to whether or not the court erred in holding that the refusal of the appellant to switch, the two oars of staves in controversy was such an unjust discrimination against the appellee as to prevent the appellant from recovering judgment for the demurrage claimed, conceding that such demurrage was due appellant by the .appellee.
On behalf of the (appellant there was testimony tending to show that the spur track on which the cars in controversy were placed wias not put in for the purpose of receiving freight from boats or barges on the river; that it was put in as ;an industrial track for the National Cooperage Company, whose plant w)as situated about 300 yards from the landing on the river. It was shown that the appellant had a switching arrangement for industries located on its line, or reached by its connections. Appellant introduced its tariff No. 3381, which provided as follows : ‘ ‘ The nates of switching provided in the tariff are for services within yard limits, and apply only in the case of through shipments from or to Camden, Arkansas. No rates are provided for what may be designated as ‘Local Town Switching, ’ and we will not undertake to perform such switching' service. 'Switching performed by St. Louis S. W. Ey.”
It was shown that under this regulation appellant switched through carloads to and from industries located on or reached toy its own rails or its connection with the St. Louis, Iron Mountain & Southern Eailway at the rate of $2 per car, but that it did not switch for its connection with the St. Louis, Iron Mountain & Southern Eailway carloads to its public loading and delivery track, nor did it place cars for loading on such public loading or delivery track for shipment via the .St. Louis, Iron Mountain & Southern Eailway. It provided this river track for its own exclusive use.
A witness testified that where appellant switched a oar for the St. Louis, Iron Mountain & Southern Eailway to an industry or warehouse located on or reached by its •track for partial loading and the car is returned to the St. Louis, Iron Mountain & Southern Eailway with the remainder of the load, the regular switching charge will be assessed for switching each wiay, on the same principle that appellant charged for .a loaded car in and a loaded car out as per its rule. Where a car was placed to load for forwarding by the St. Louis, Iron Mountain & Southern Eailway and the shipper ordered an additional move or moves to complete the loading, a switching charge of $2 per car was assessed for each move after the original placing, under its tariff regulations. The witness then explained that under its tariff .appellant could switch for •the National Cooperage Company, because it was an industry having its plant located on appellant’s spur track, but that it could not, under its tariff regulations, switch cars from its team or house track to the Iron Mountain track except for industries located on its line. Staves which came in by boat 'and were unloaded at the wharf and then hauled to appellant’s river or team track, and there loaded on oars to be shipped over the Iron Mountain would not be switched by the .appellant from its river track to the Iron Mountain track without a charge for switching under its tariff rates; that freight which came in by water, going to points on appellant’s own line or connections, appellant would carry lat the regular tariff rate, but would not do town switching that goes to the Iron Mountain; that was the drayman’s business.
The court was in error in holding that because the appellant made a distinction between shippers not having industries located on its spur or team track, and those who did have industries thus located, that it was guilty of unjust discrimination which would prevent its recovery in this suit.
(2) Now, the appellee did not have any plant for the manufacture of staves situated on appellant’s river or spur track. The National 'Cooperage Company did have such a plant. The service in the way of spur track facilities which the appellant offered to industries located on its own line at the city of 'Camden was a service which it was not bound to render all shippers who might offer •articles for shipment at points along this spur track. This extra inducement to have industries located .along appellant’s line was in 'the sphere of legitimate enterprise to increase its own business, and this service was outside of its ordinary duties ias a common carrier.
(3) Under the statute providing that no unjust or undue ’discriminations shall be made, in charges for or in facilities for transportation of freight or passengers within the State (Kirby’s Digest, section 6722), there can be no unjust or undue discrimination between shippers that are not similarly situated so long as a like service is extended to shippers who are in the same or like situation. Little Rock & Fort Smith Ry. v. Oppenheimer, 64 Ark. 271. If appellee had had a plant located on appellant’s river or spur track at Camden, and the appellant had not given to the appellee precisely the same service that it gave to the National 'Cooperage Company in the way of facilities and charges for the transportation of .freight, then appellee’s contention would be sound. But, as appellee had no such plant upon appellant’s .river track, it was not discriminated against because appellant allowed the National Cooperage Company the facilities of its river or spur track, but would not allow these facilities to other shippers or allow their use to other shippers, not in the same situation, upon different terms than those imposed upon the National Cooperage Company.
Learned counsel for the appellee insist in their brief “that these two carloads of staves were loaded at the 'Cotton Belt freight station at 'Camden, a point in Arkansas, and the appellant was requested to issue a through way-bill and ship them to Arkadelphia, another point in Arkansas, and from appellant’s station at Camden to the station at Arkadelphia there was a continuous line of railroad, .all of it within the State of Arkansas.” But we do not so understand the facts. The two cars of staves in controversy were not loaded at the Cotton Belt freight station at Camden. Appellee’s .answer and the uncontroverted evidence shows that the oars “named and mentioned in plaintiff’s complaint had been placed at a point in or near Camden on appellant’s river or spur track about a mile from appellant’s freight station.”
It was the contention of appellee that appellant had to issue its through way-bill and ship these cars from this point where they were loaded on its river track, through by way of its spur track connecting with the Iron Mountain, to Arkadelphia, the same as it would a shipment of staves for the National Cooperage Company loaded on cars at its plant on the river track. But, as before stated, the two shippers not being in the same situation, appellant 'did not have to give the appellee the same advantages of its spur track connection with the Iron Mountain that it did the National Cooperage Company as to shipments originating on its river track where the cooperage company’s manufacturing plant was located.
The case would have been quite different, for instance, if the National Cooperage Company had offered to appellant’s road shipments that did not originate on the line of appellant’s river track, on which the plant of the National Cooperage Company was situated. As to such shipments the cooperage company would be in the same situation as shipments offered by appellee at appellant’s freight depot at Camden. Under the facts of this record appellant can not invoke the provisions of sections 6829 and.6830, Kirby’s Digest. These sections provide in substance that:
In all cases where there is by physical 'connection a continuous line of railway communications between railroad stations within this State, whether such stations be on railroads operated by one and the same company or corporation or on railroads operated by different and independent companies or corporations, it shall be the duty of the Railroad Commission of this State, to and from such stations, to make just and reasonable rates of freight, to be observed by all persons, companies or corporations, operating any railroad or engaged in transporting persons or property or freight in this State, and that all freight carried while within this State, to and from stations on a line of continuous carriage, shall be way-billed through at through rates, and if the connecting lines fail to agree upon a division of the charges the commission shall make the division fixing the pro rata part that each .connecting line shall receive.
These provisons have no 'application here. In the recent case of St. Louis, I. M. & S. Ry. Co. v. State, 112 Ark. 147, we held: “A railway company will not be held to have discriminated in favor of one shipper and against another when by reason of the location of the tracks of another railway company it is' able to furnish switching facilities free to the first shipper, but, because of different conditions, makes .a charge for switching to the other shipper. ’ ’ That is the principle that must rule the instant case. See, also, Louisville & Nashville Rd. Co. v. Central Stock Yards Co., 212 U. S. 132; Yazoo & Miss. Valley Rd. Co. v. G. Y. Crawford, 55 L. R. A. (N. S.) 250, and note; State ex rel. Ellis v. Atlantic C. L. R. Co., 12 L. R. A. (N. S.) 506, and note on the subject of discrimination.
For the error of the court in directing the jury to return ia verdict in favor of the appellee, the judgment is reversed .and the cause is remanded for a new trial.