stances which are necessarily incident to the two kinds of business we are considering. Another important incident which distinguishes them is that the establishment of manufacturing industries and the conducting of their business necessitates the employment of numbers of workmen and other persons whose services are needed, and these, with their families, create settlements and new centers of population, resulting in villages, towns, boroughs, and cities, according to the extent and variety of the industries established, and all these, in turn, furnish new and additional traffic to the lines of transportation. But nothing of this kind results from the mere business of coal selling. In fact that business is one of the results of the manufacturing business, and is not a co-ordinate with it. The business of the coal dealer is promoted by the concentration of population which results from the establishment of manufacturing industries, and these two kinds of business are not competitive in their essential characteristics, but naturally proceed together, side by side, the coal selling increasing as the manufacturing increases in magnitude and extent.

These considerations are generic, and are suggested for the purpose of illustrating the differences between the fundamental conditions and circumstances of the two industries we are considering. Recurring now to the authorities, we find that the British statute of 17 & 18 Vict. c. 31, (1854,) is perhaps the earliest instance of direct legislation upon this subject. That statute prohibited "undue or unreasonable preference or advantage" in transportation charges, but lacked the restricting words "from the same place, upon like conditions, and under similar circumstances," which appear in our act of

1883.

Yet it was held in the Cases of Ransome, 1 C. B. (N. S.) 437, and Oxlade, Id. 454, that it was competent for a railway company to enter into a special agreement for the carriage of goods for a particular individual or company at a lower rate in respect of large quantities of goods and longer distances than for one who sends them in small quantities and shorter distances. In Ransome's Case it was said by Cresswell, J., in delivering the opinion of the court: "After a good deal of consideration, we think that the fair interests of the railway ought to be taken into the account." In the case of Nicholson v. Railway Co., 94 E. C. L. 366, the same doctrine was held, and it was also held that the second section of the railway traffic act (17 & 18 Vict. c. 31) was not contravened by a railway company carrying at a lower rate, in consideration of a guaranty of large quantities and full train loads at regular periods, provided the real object of the company be to obtain thereby a greater remunerative profit, by the diminished cost of carriage, although the effect may be to exclude from the lower rate those persons who cannot give such a guaranty. Crowder,

J., said in the opinion: "When the statute speaks of undue and unreasonable preference or advantage,' and 'undue or unreasonable prejudice or disadvantage,' it uses language implying that there may be advantage to one person or one class of traffic and prejudice to another, which would not be within the act of parliament. The preference and prejudice must be 'undue' or 'unreasonable' to be within the statute, and although, in the case now before the court, it is quite manifest that the Raubon Coal Company have many and important advantages in carrying their coal on the Great Western Railroad, as against the complainants and other coal owners in the forest of Dean, still the question remains, are they 'undue' or 'unreasonable' advantages? This mainly depends upon the adequacy of the consideration given in return to the railway company for the advantages afforded to the Raubon Coal Company." The justice then proceeds to show that it was to the advantage and profit of the railway company to carry coals for the Raubon Company at a lower rate than for the complainants, and concludes, in the language of the syllabus above quoted, that this was no violation of the act. All of the foregoing cases recognize the proposition that if the interest of the railway company was subserved by charging the lower rate to the one company than to the other, the act was not violated. That conclusion was reached in a case where the complainant was in the same business with the favored company, and was injuriously affected by the discrimination, but the court held that this was permissible if the interests of the railway company were thereby subserved. With how much greater force can it be said that here, where there is no competition in the disposal of the coal of the plaintiffs and the products of the nail company, and also where the inducement to the defendant to make the lower rate for the nail company is a largely increased traffic on the defendant's road, neither the letter nor the spirit of our act of 1883 was violated.

The doctrine of the cases above cited was also declared in the case of Baxendale v. Railroad Co., 94 E. C. L. 353, where Cockburn, J., said: "If an arrangement were made by a railway company whereby persons bringing a larger amount of traffic to the railway should have their goods carried on more favorable terms than those bringing a less quantity, a court might uphold such an arrangement as an ordinary incident of commercial economy, provided the same advantage were extended to all persons under the like circumstances." This latter incident would of course be essential where all of the favored class were in the same business. In the case of Messenger v. Railroad Co., 37 N. J. Law, 531, cited for the appellee, the court was careful to say that "it must not be inferred that a common carrier, in

adjusting his price, cannot regard the particular circumstances of the particular transportation. Many considerations may properly enter into the agreement for carriage or the establishment of rates, such as the quantity carried, its nature, risks, the expense of carriage at different periods of time, and the like; but he has no right to give an exclusive advantage or preference in that re spect to some over others for carriage in the course of his business." In that case there was a very clear preference to one party over all others in the same business by the railroad company giving him a specific drawback upon freights on hogs carried from the same points, and, of course, as this was direct preference over all others, it was in violation of the law. But that decision has no application to this case. In the case of Interstate Commerce Commission v. Baltimore & O. R. Co., 145 U. S. 263, 12 Sup. Ct. Rep. 844, it was held that the issue by a railway company engaged in interstate commerce of a party-rate ticket for the transportation of 10 or more persons at a rate less than that charged to a single individual for a like transportation on the same trip did not make an unjust or unreasonable charge, nor an unjust discrimination, nor give an undue or unreasonable preference or advantage to the purchasers of the party-rate ticket, within the meaning of the several provisions of the interstate commerce act of 1887. There was much discussion of the general subject of the prohibition of the general statute in the opinion of the supreme court of the United States in this case, from which it will be instructive to present some quotations. The English traffic act of 1854, above referred to, was fully considered, and the Cases of Oxlade and Ransome, and others hereinbefore cited, were recognized and followed. Among other things, it was said by Mr. Justice Brown, who delivered the opinion: "It is not all discriminations or preferences that fall within the inhibition of the statute; only such as are unjust and unreasonable. For instance, it would be obviously unjust to charge A. a greater sum than B. for a single trip from Washington to Pittsburg; but if A. agrees not only to go, but to return by the same route, it is no injustice to B. to permit him to do so for a reduced fare, since the services are not alike, nor the circumstances and conditions substantially similar, as required by section 2, to make an unjust discrimination. Indeed, the possibility of just discrimination and reasonable preferences is recognized by these sections in declaring what shall be deemed unjust. * * * In order to constitute an unjust discrimination under section 2, the carrier must charge or receive directly from one person a greater or less compensation than from another, or inust accomplish the same thing indirectly, by a special-rate rebate, or other device; but in either case it must be for a "like and

contemporaneous service, in the transportation of a like kind of traffic, under substantially similar circumstances and conditions." To bring the present case within the words of this section we must assume that the transportation of ten persons on a single ticket is substantially identical with the transportation of one, and, in view of the universally accepted fact that a man may buy, contract, or manufacture on a large scale cheaper proportionately than upon a sinall scale, this is impossible. In this connection we quote with approval from the opinion of Judge Jackson in the court below: "To come within the inhibition of said sections the differences must be made under like conditions; that is, there must be contemporaneous service in the transportation of like kinds of traffic, under substantially the same circumstances and conditions. *

* In

short, the substance of all these decisions is that railway companies are only bound to give the same terms to all persons alike, under the same conditions and circumstances, and that any fact which produces an inequality of conditions and a change of circumstances justifies an inequality of charge. * But, in so far as relates to the question of 'undue preference,' it may be presumed that congress, in adopting the language of the English act, had in mind the construction given to these words by the English courts, and intended to incorporate them into the statute. McDonald v. Hovey, 110 U. S. 619, 4 Sup. Ct. Rep. 142." In the case of Railroad Co. v. Gage, 12 Gray, 393, the right to discriminate upon the basis of a carriage for a certain time, and in certain quantities, was declared. The claim of the shipper was for an equality of charges for shipments of ice with charges for shipments of bricks, because they were of the same class of freight; but the claim was not allowed. The court said, by way of illustration of the principle upon which there might be a lawful discrimination of rates upon the same class of goods: "If, for special reasons, in isolated cases, the carrier sees fit to stipulate for the carriage of goods or merchandise of any class for individuals for a certain time, or in certain quantities, for less compensation than what is the usual, necessary, and reasonable rate, he may undoubtedly do so without entitling all other persons and parties to the same advantage and relief." And this court said in the case of Shipper v. Railroad Co., 47 Pa. St. 338: "We are not prepared to say that a railroad company may not discriminate in its rate of tolls in favor of domestic trade over foreign, in favor of home products over those which are extraterritorial; especially when the railroad lies wholly within the state. Ownership may not be a reasonable ground for a distinction, but weight, bulk, value, place of production, and many other things, may be."

These cases are cited as illustrations of various reasons and principles upon which

lawful discriminations may be made even in charges for the carriage of the same goods over the same roads, and to be used for the same purposes. But in the present case, where not only a particular quantity must be furnished to the railroad every day, but the goods at the point of delivery are to be used for totally different purposes, which do not conflict or compete with each other, the reason for a discrimination has an infinitely greater force. In Hutchinson on Carriers, (page 353,) after a protracted review of all the cases, (and they are very numerous,) the writer sums up the result thus: "Mere inequality in charges does not, therefore, of itself amount to an unjust discrimination. It only becomes such when a discrimination is made in the rates charged for transportation of goods of the same class, of different shippers, under like circumstances and conditions. So a mere reduction from the established rate is not necessarily an unjust discrimination, but it becomes such when it is either intended, or has a natural tendency, to injure another shipper in his business, and destroy his trade by giving to the favored shipper a practical monopoly of the business."

We come now to consider the case of Borda v. Railroad Co., 141 Pa. St. 484, 21 Atl. Rep. 665. It was an action of case brought against the Philadelphia & Reading Railroad Company by the plaintiffs, who were shippers of coal, to recover damages for alleged illegal discriminations in the freight charged to the plaintiffs on shipments of coal over the defendant's road, as against lower rates charged to other shippers over the same road. The case was, by agreement of the parties, referred to Mr. Peter McCall as referee, who made a most exhaustive and elaborate report denying the claim of the plaintiffs, and his report was affirmed by this court. As the shipments had been made prior to the adoption of our constitution of 1874, a preliminary question arose, whether it was the duty of the defendant to carry without discrimination. The referee held that such was the duty of the defendant, saying: "I regard it, then, as settled law in this state that a railroad company, a common carrier, owes a duty of equality to every citizen; and I adopt the position taken by Mr. Bullitt in argument that railroad companies have no right to make any undue discrimination or preference in their charges, and a charge made to one shipper higher than another, for the same service, under like circumstances, constitutes undue preference and discrimination, and, by consequence, renders the charge unreasonable. Such is the general rule, and it is vastly important to the general public that there be no undue relaxation of this rule; for, exercising, as they practically do, a monopoly of transportation on their roads, railway managers have in their hands a tremendous power, by discrimination, to enrich

one man and ruin another. The equality, however, which is thus prescribed is not a strict and literal equality under all circumstances, however varying and different. It is rather an equality in the sense of freedom from unreasonable discrimination. It is only unjust, undue, or unreasonable discrimination against which the law has set its canon. Arbitrary discrimination is illegal; is discrimination made with a view of giving advantage to one person. But the truism that circumstances alter cases applies here, and under a different state of circumstances a discrimination may be reasonable and lawful, which, were the circumstances the same, would be undue and unreasonable. In order to render lawful an inequality of charge, the goods must be carried under different circumstances, and the question whether the difference is material or essential arises in each particular case." The writer regards the foregoing as the most precise and the most felicitous expression of the law upon the general subject under consideration that he has met with, and therefore quotes it entire.

The claim of the plaintiffs was to recover damages to the amount of upwards of $60,000 for unjust discrimination in favor of Audenried & Co., rival coal shippers to the plaintiffs, by the payment to Audenried & Co. of rebates on coal shipped from Port Richmond to points beyond New Brunswick at the rate of $1.65 for steamer coal, and other rates for other grades. It was proved that these rebates were paid under agreements between Audenried & Co. and the defendant, made at the beginning of the season, and to continue throughout the season, and the referee was of opinion, and so found, that these contracts for continuous shipments during the whole season at fixed rates constituted such a difference in the conditions and circumstances of the shipments for Audenried & Co. and the plaintiffs, respectively, as to justify the discrimination, and prevent it from being illegal. In expressing his conclusions the referee says: "The defendant's case denies that the discrimination was willful, and made with any such design as imputed by the plaintiffs. It rests upon the ground that the payment of the drawbacks to Audenried & Co. was under an honest and bona fide belief that they were entitled to them, under an arrangement by which, in consideration of their having made contracts early in the spring for delivery of coal at fixed prices throughout the season, they were allowed the drawbacks in question. On the whole, I am of opinion, upon the best consideration I have been able to give the subject, that the defendant did not pay to Audenried & Co. the drawbacks complained of in the first and additional count of the declaration willfully, and with intent to enable them to increase their business at the expense of the plaintiffs, but that it paid the same in good faith,

*

*

ton on their coal, they had that much of an advantage over others; and the law would seem, in the mind of the court, to fix that excess as the measure of the plaintiffs' damages." We think this was serious error. The act of 1883 contains no language justifying an instruction that the party injured can recover three times the amount of the difference in the rates charged. The words of the act are: "Any violation of this provision shall make the offending company or common carrier liable to the party injured for damages treble the amount of injury suffered." The "amount of injury suffered" is the measure of the single damages to be allowed. But it does not at all follow that the amount of injury suffered is the difference in the rates charged. It might be, or it might not be, but, in any event, it must be a subject of proof, and there was no proof in the case of the actual damage sustained. How does it follow that because the defendant company paid in 1889 to the nail company a rebate of some $6,000 on all the shipments that had been made from 1881, and a few sums thereafter, the plaintiffs suffered damage to any extent? In point of fact the nail company paid the full freight of 50 cents a ton net during all these years, and their claim for rebates was not adjusted until 1889. How, then, does it appear that damage was suffered by the plaintiffs in consequence of the payment of the rebates to the nail company? It does not appear that the plaintiffs sold their coal for any less than the current market price at any time except when they and the other dealers were engaged in a war of prices, and sold it far below actual cost in a struggle to capture the market, and it does not appear but that the plaintiffs would have sold their coal at 20 cents less than they did if they had received the rebate. The natural inference is that that is precisely what they would have done in the contest for the market. But of all this there is not a word of testimony, and yet it is only actual damage that they can recover. The proof for the defendant was that they never cut the market price to their men, but maintained it even when the coal dealers of the town were slaughtering each other's trade by selling below cost. As three times the actual damage is the penalty the defendant would have to pay if the judgment were sustained, they have a right to require very clear and definite proof as to what the actual damage was. When blast furnaces and great iron mills are built, they are not placed in cities or towns, but in the open country, where land is abundant and cheap, and of course on the line of a railroad. When they are established there is no population at the place of erection. The railroad companies are very willing to make as favorable terms as possible for freights on all the materials that are brought to the plants, and on all products that are carried from them, because

they get a largely increased business from such enterprises. When the works are erected, houses are built for the men and officials of the companies. After that come the usual accessories required to supply the wants of the population, to wit, merchants, tradesmen, mechanics, butchers, bakers, grocers, and, among others, coal dealers. But the moment the last of these arrive, if the principles which prevailed in the court below in this case are correct, the whole freight system agreed upon between the transporter and the manufacturer theretofore must be changed and advanced to the freight rates charged to the retail dealers, or else all the rates charged to such dealers must be lowered to conform to the rates charged to the manufacturer. If this is not done, the manufacturer incurs the risk of being visited years afterwards with claims for treble damages, which may embrace any period of six years, and, as all the dealers have the same right of action in this regard that any of them has, and every town or city along the line has some or many retail coal dealers and manufacturing establish.ments also within its limits, it is easy to see that the aggregate of such claims may soon absorb the entire property and assets of the strongest transporting companies of the state. We do not find anything in the law that renders necessary or possible any such results as these, and we think it wiser and better to administer the law so that the rights and interests of all may be conserved within rational and sensible limits.

We sustain the first, second, third, and fifth assignments of error. The fourth and sixth assignments have no merit, and are not sustained. Judgment reversed.

In an action against a railroad company for personal injuries, it appeared that plaintiff, on approaching a crossing, stopped his team about 150 feet from it, and looked and listened for cars, and that, though the track could be seen for only a short distance from this point, it was where drivers usually stopped to look for trains, as the road from there to the track was descending, thus making it difficult to check horses. Held, that the entry of nonsuit on the ground that, where plaintiff stopped, trains could neither be seen nor heard, was error, as there should have been submitted to the jury the question as to whether such point was a proper place to stop.

Appeal from court of common pleas, Philadelphia county; Pennypacker, Judge.

Action by Hiram Whitman against the | Pennsylvania Railroad Company for personal injuries received at a crossing. From a judgment of nonsuit, plaintiff appeals. Reversed.