Opinion by
Henderson, J.,
The plaintiff’s action was brought under the Act of June 4, 1883, P. L. 72, to recover damages for discrimination against him in transportation facilities. The plaintiff alleged discrimination in favor of numerous companies, firms and individuals engaged in shipping coal, some of whom loaded on the defendant’s cars through tipples, while others were known as,“team track loaders ” who delivered from wagons at platforms, to which latter class the plaintiff belonged. The plaintiff’s claim covered discriminations in favor of both classes of shippers, but at the trial his right of recovery was limited to discriminations in favor of other loaders from wagons, the court being of the opinion that shippers who loaded from tipples were not “ upon like conditions, under similar circumstances ” with those who loaded from wagons. There was evidence showing that the defendant furnished cars to several team track loaders at the places where and during the time when the plaintiff sought to ship coal; that the manner of shipment by those who so [10]*10received cars was the same as that adopted by the plaintiff; that frequent requests were made to the company for cars by the plaintiff; that cars were promised but never furnished; that a large number of cars were provided by the defendant for other shippers and that the defendant neglected and finally refused to furnish any to the plaintiff. This evidence raised a question of fact for the determination of the jury.
The general obligation of a railroad company to furnish the necessary cars to carry goods offered for transportation grows out of the public nature of its business and does not depend upon contract. This duty does not involve the necessity of providing transportation at all times upon demand where an unusual increase of business mates it unreasonable that a transportation company should be provided with exceptional capacity to meet such demand; but whatever may be the ability of the company in this respect the constitution and statute forbid that there be any undue or unreasonable discrimination between individuals or between individuals and companies in the furnishing of facilities for transportation. All shippers similarly situated are to be treated alike at the same place in obtaining cars. An unusual volume of business may make it impracticable for the railroad company to provide an adequate supply, but the duty remains to distribute whatever cars may be available among those of the same class in due proportion: Borda v. R. R. Co., 141 Pa. 484; Hannibal, etc., R. R. Co. v. Swift, 79 U. S. 262; Ogdensburg & Lake Champlain R. R. Co. v. Pratt, 89 U. S. 123; Baxendale v. Ry. Co., 94 E. C. L. 336 ; Messenger v. R. R. Co., 37 N. J. L. 531; Great Western Ry. Co. v. Hawkins, 18 Mich. 427; U. S. ex rel. Kingwood Coal Co. v. W. Va. Northern R. R. Co., 125 Fed. Repr. 252; Hoover v. Penna. R. R. Co., 156 Pa. 220. Any inequality of charge or facilities for transportation must be justified by a difference of circumstances and situation. That the plaintiff was situated similarly to several of the dealers to whom the defendant furnished cars is clearly shown by the evidence. The appellant objects that the plaintiff was not the owner of a coal mine and that he was not “rated,” but others who received cars were subject to the same objection; nor was it material that the shippers did not own mines. They furnished coal at loading places at which such freight was regularly received by the defendant. It was not a [11]*11matter material to the public or the defendant, whether the plaintiff obtained his coal from a mine owned by himself or from mines owned by other persons. According to the evidence, he was the owner of coal which he delivered at the platform at which the defendant received such merchandise, and he was entitled to like consideration with others engaged in the same business in the same manner. A large part of the commerce of the country is carried on by dealers who are not the producers of the goods in which they deal. New ventures in trade are entered upon daily by men and companies not theretofore so engaged. A rule which would permit a transportation company to discriminate in favor of particular persons or companies because they had been for a longer time engaged in business would have a most pernicious effect on commerce and is inconsistent with the element of fairness which the law seeks to establish. Moreover, the evidence shows that the plaintiff had an interest in one of the mines from which he obtained coal and that cars were furnished for other shippers who were not owners of mines. The plaintiff notified the defendant that he was prepared to ship 200 tons of coal a day. Whether he was “ rated ” by the company was a matter for it and not for the plaintiff. He took all the steps reasonably necessary to bring to the notice of the company the requirement as to transportation necessary for his business. It is doubtless true, as claimed by the defendant, that there was a demand for cars beyond the capacity of the company, but it is admitted that many cars were furnished to shippers in the district where the plaintiff was and a large number to persons and companies shipping at the sidings where the plaintiff delivered his coal. If the refusal had been to all of the dealers loading from wagons, because of delay in loading the cars and because of the superior facilities of the tipple loaders, one of the questions raised by the appellant would have been involved in the case; but no such discrimination was made by the defendant, nor was any objection made against the method of loading or that the persons delivering the coal were not the owners of the mines from which the coal was brought. The case of Harp v. Choctaw, etc., Ry. Co., 118 Fed. Repr. 169, is not applicable to the case under consideration. The objection there was to provide cars to be loaded from wagons on the commercial tracks in the company’s [12]*12yards at a time when the business of the road was unusually heavy, necessitating the constant use of the tracks, and when its supply of cars was insufficient to handle its traffic. The supplying of cars to coal companies on their private tracks to be loaded by tipple was held not to be an unreasonable discrimination, because of the difference in the situation of the shippers. The refusal to provide cars was distinctly stated and affected the class of shippers loading from wagons. In the present case no such objection was made nor was there a refusal to furnish cars to individuals or companies loading from wagons. On the contrary, sevéral of such shippers were accommodated with cars. ' If the company had justifiable reasons for refusing to carry the plaintiff’s property it should have insisted upon such grounds in order to avoid responsibilit}’-. After having promised to provide cars, as the plaintiff claims, it is too late when litigation has arisen for the defendant to change his position and justify his conduct on other grounds : Hannibal, etc., R. R. Co. v. Swift, 79 U. S. 262; Ohio & Miss. R. R. Co. v. McCarthy, 96 U. S. 258.
We have no doubt that the business of the plaintiff brought him within the terms of the statute. Discrimination between individuals is forbidden as well as between individuals and transportation companies, and the plaintiff’s evidence very clearly shows discrimination against him.
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Opinion by
Henderson, J.,
The plaintiff’s action was brought under the Act of June 4, 1883, P. L. 72, to recover damages for discrimination against him in transportation facilities. The plaintiff alleged discrimination in favor of numerous companies, firms and individuals engaged in shipping coal, some of whom loaded on the defendant’s cars through tipples, while others were known as,“team track loaders ” who delivered from wagons at platforms, to which latter class the plaintiff belonged. The plaintiff’s claim covered discriminations in favor of both classes of shippers, but at the trial his right of recovery was limited to discriminations in favor of other loaders from wagons, the court being of the opinion that shippers who loaded from tipples were not “ upon like conditions, under similar circumstances ” with those who loaded from wagons. There was evidence showing that the defendant furnished cars to several team track loaders at the places where and during the time when the plaintiff sought to ship coal; that the manner of shipment by those who so [10]*10received cars was the same as that adopted by the plaintiff; that frequent requests were made to the company for cars by the plaintiff; that cars were promised but never furnished; that a large number of cars were provided by the defendant for other shippers and that the defendant neglected and finally refused to furnish any to the plaintiff. This evidence raised a question of fact for the determination of the jury.
The general obligation of a railroad company to furnish the necessary cars to carry goods offered for transportation grows out of the public nature of its business and does not depend upon contract. This duty does not involve the necessity of providing transportation at all times upon demand where an unusual increase of business mates it unreasonable that a transportation company should be provided with exceptional capacity to meet such demand; but whatever may be the ability of the company in this respect the constitution and statute forbid that there be any undue or unreasonable discrimination between individuals or between individuals and companies in the furnishing of facilities for transportation. All shippers similarly situated are to be treated alike at the same place in obtaining cars. An unusual volume of business may make it impracticable for the railroad company to provide an adequate supply, but the duty remains to distribute whatever cars may be available among those of the same class in due proportion: Borda v. R. R. Co., 141 Pa. 484; Hannibal, etc., R. R. Co. v. Swift, 79 U. S. 262; Ogdensburg & Lake Champlain R. R. Co. v. Pratt, 89 U. S. 123; Baxendale v. Ry. Co., 94 E. C. L. 336 ; Messenger v. R. R. Co., 37 N. J. L. 531; Great Western Ry. Co. v. Hawkins, 18 Mich. 427; U. S. ex rel. Kingwood Coal Co. v. W. Va. Northern R. R. Co., 125 Fed. Repr. 252; Hoover v. Penna. R. R. Co., 156 Pa. 220. Any inequality of charge or facilities for transportation must be justified by a difference of circumstances and situation. That the plaintiff was situated similarly to several of the dealers to whom the defendant furnished cars is clearly shown by the evidence. The appellant objects that the plaintiff was not the owner of a coal mine and that he was not “rated,” but others who received cars were subject to the same objection; nor was it material that the shippers did not own mines. They furnished coal at loading places at which such freight was regularly received by the defendant. It was not a [11]*11matter material to the public or the defendant, whether the plaintiff obtained his coal from a mine owned by himself or from mines owned by other persons. According to the evidence, he was the owner of coal which he delivered at the platform at which the defendant received such merchandise, and he was entitled to like consideration with others engaged in the same business in the same manner. A large part of the commerce of the country is carried on by dealers who are not the producers of the goods in which they deal. New ventures in trade are entered upon daily by men and companies not theretofore so engaged. A rule which would permit a transportation company to discriminate in favor of particular persons or companies because they had been for a longer time engaged in business would have a most pernicious effect on commerce and is inconsistent with the element of fairness which the law seeks to establish. Moreover, the evidence shows that the plaintiff had an interest in one of the mines from which he obtained coal and that cars were furnished for other shippers who were not owners of mines. The plaintiff notified the defendant that he was prepared to ship 200 tons of coal a day. Whether he was “ rated ” by the company was a matter for it and not for the plaintiff. He took all the steps reasonably necessary to bring to the notice of the company the requirement as to transportation necessary for his business. It is doubtless true, as claimed by the defendant, that there was a demand for cars beyond the capacity of the company, but it is admitted that many cars were furnished to shippers in the district where the plaintiff was and a large number to persons and companies shipping at the sidings where the plaintiff delivered his coal. If the refusal had been to all of the dealers loading from wagons, because of delay in loading the cars and because of the superior facilities of the tipple loaders, one of the questions raised by the appellant would have been involved in the case; but no such discrimination was made by the defendant, nor was any objection made against the method of loading or that the persons delivering the coal were not the owners of the mines from which the coal was brought. The case of Harp v. Choctaw, etc., Ry. Co., 118 Fed. Repr. 169, is not applicable to the case under consideration. The objection there was to provide cars to be loaded from wagons on the commercial tracks in the company’s [12]*12yards at a time when the business of the road was unusually heavy, necessitating the constant use of the tracks, and when its supply of cars was insufficient to handle its traffic. The supplying of cars to coal companies on their private tracks to be loaded by tipple was held not to be an unreasonable discrimination, because of the difference in the situation of the shippers. The refusal to provide cars was distinctly stated and affected the class of shippers loading from wagons. In the present case no such objection was made nor was there a refusal to furnish cars to individuals or companies loading from wagons. On the contrary, sevéral of such shippers were accommodated with cars. ' If the company had justifiable reasons for refusing to carry the plaintiff’s property it should have insisted upon such grounds in order to avoid responsibilit}’-. After having promised to provide cars, as the plaintiff claims, it is too late when litigation has arisen for the defendant to change his position and justify his conduct on other grounds : Hannibal, etc., R. R. Co. v. Swift, 79 U. S. 262; Ohio & Miss. R. R. Co. v. McCarthy, 96 U. S. 258.
We have no doubt that the business of the plaintiff brought him within the terms of the statute. Discrimination between individuals is forbidden as well as between individuals and transportation companies, and the plaintiff’s evidence very clearly shows discrimination against him. It is said that the plaintiff was not a “shipper,” but the statute was not enacted in behalf of regular shippers or those who had been shippers before that. A man has a right to begin to ship goods and it is the policy of the law to encourage the legitimate development- of commerce.
No question of interstate commerce arises if the testimony of the plaintiff is believed. According to his evidence Salisbury Junction was the point of delivery. The court instructed the jury that if the contract between the plaintiff and Smyth was for the shipment of coal beyond the limits of Pennsylvania that would end the case; but that if the shipment was to a point only within Pennsylvania, the case was within the jurisdiction of the court. The verdict shows that the jury found the fact to be as alleged by the plaintiff. It may be that it was the intention of Smyth that the coal should be shipped from Salisbury Junction to a point without the state, but the [13]*13plaintiff’s relation to the coal terminated at Salisbury Junction. Taking the plaintiff’s evidence as true, the service was to be wholly within the state of Pennsylvania and would be presumably subject to the laws of this state. The contrary was not established by the evidence.
The'case was submitted to the jury with a fair and impartial charge and we do not find anything in the assignments of error requiring a reversal.
The judgment is affirmed.