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Prescott & A. C. R. Co. v. Atchison, T. & S. F. Co. 73 Fed. 439.

The Central Stock Yards Company has exhibited no right to maintain this complaint on account of the refusal of the Louisville & Nashville Railroad Company to receive stock destined for the Central stock yards, whether anyone else would have the right to make the complaint or not.

This is a case which involves the duty of a connecting carrier in the matter of delivery of freight when it has reached its destination. The Central stock yards, Kentucky, is no more a distinct place from Louisville than is the Bourbon stock yards, Kentucky.

The Louisville & Nashville Railroad Com pany, in bringing live stock to Louisville, has the right to establish a live-stock depot in Louisville, and insist in delivering all live stock at that depot.

Mobile County v. Kimball, 102 U. S. 691, 26 L. ed. 238; Wisconsin, M. & P. R. Co. v. Jacobson, 179 U. S. 287, 45 L. ed 194, 21 Sup. Ct. Rep. 115; Gulf, C. & S. F. R. Co. v. Miami S. S. Co. 30 C. C. A. 142, 52 U. S. App. 732, 86 Fed. 407.

The delivery of the freight at the point of destination is as much a part of the com merce as the handling of it upon any other part of the line of transportation.

Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 29 L. ed. 158, 1 Inters. Com. Rep. 382, 5 Sup. Ct. Rep. 826; Fielder v. Missouri, K. & T. R. Co. (Tex. Civ. App.) 42 S. W. 362; Council Bluffs v. Kansas City, St. J. & C. B. R. Co. 45 lowa, 338, 24 Ain. Rep. 773.

company in transporting freight to points on the line of the latter company.

There is no power in any tribunal, state or Federal, legislative or judicial, to require that the Louisville & Nashville Rail road Company deliver its cars to the South. Butchers' & D. Stock Yards Co. v. Louis-ern Railway Company, for use by the latter ville & N. R. Co. 14 C. C. A. 290, 31 U. S. App. 252, 67 Fed. 35; United States v. Addyston Pipe & Steel Co. 46 L. R. A. 122, 29 C. C. A. 141, 54 U. S. App. 723, 85 Fed. 271; Western & A. R. Co. v. Exposition Cotton Mills, 81 Ga. 522, 7 S. E. 916; Nanson v. Jacob, 12 Mo. App. 125, Affirmed in 93 Mo. 331, 6 S. W. 246.

It is not the duty of a railroad company, either at common law, or under the Interstate Commerce Act, to accept freight marked for a destination beyond the line of that company; nor is it, in any event, its duty to deliver its own cars containing such freight to a connecting carrier, in order that the freight may be transported without change of cars to a point beyond the receiving company's line.

Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684, 43 L. ed. 858, 19 Sup. Ct. Rep. 565; Oregon Short Line & U. N. R. Co. v. Northern P. R. Co. 4 Inters. Com. Rep. 249, 51 Fed. 465, Affirmed in 4 Inters. Com. Rep. 718, 9 C. C. A. 409, 15 U. S. App. 479, 61 Fed. 158.

Day, Circuit Judge, delivered the opinion of the court:

The discussion in this case has taken a wide range. In our opinion, it may be disposed of in the solution of a few leading propositions, the first being: Is there a right, independent of a statute, to require the railroad company to receive the live stock for Hutchinson, Carr. § 145; Muschamp v. shipment to the Central stock yards, and to Lancaster & P. Junction R. Co. 8 Mees. & deliver the cars at a point of connection W. 421; Myrick v. Michigan C. R. Co. 107 with the Southern railroad in Louisville for U. S. 106, 27 L. ed. 326, 1 Sup. Ct. Rep. 425; transportation thereto? It is apparent Little Rock & M. R. Co. v. St. Louis & S. W. from a consideration of the testimony that R. Co. 26 L. R. A. 192, 4 Inters. Com. Rep. the Central Stock Yards Company is pri854, 11 C. C. A. 417, 27 U. S. App. marily the stock yards of the Southern 380, 63 Fed. 775; Little Rock & M. Railway Company. It is true the location R. Co. V. East Tennessee, V. & G. is just beyond the city limits, but the busiR. Co. 2 Inters. Com. Rep. 454; Ore-ness to be transacted is the Louisville busigon Short Line & U. N. R. Co. v. North- ness in the sale and forwarding of stock ern P. R. Co. 4 lnters. Com. Rep. 718, 9 C. in these yards. The contract through which C. A. 409, 15 U. S. App. 479, 61 Fed. 158; the Central stock yards originated is in the Kentucky & I. Bridge Co. v. Louisville & N. R. Co. 2 L. R. A. 289, 2 Inters. Com. record, and there we find an agreement between the Southern Railway Company and Rep. 351, 37 Fed. 629; Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co. 110 U. S. the Central Stock Yards Company in which 667, 28 L. ed. 291, 4 Sup. Ct. Rep. 185.

The Kentucky Constitution can have no force as applicable to that class of business to which the bill of complaint in this suit is in express terms confined, to wit, interstate shipments of cattle, or, in other words, interstate commerce.

is recited the desire of the railroad company to establish a general stock depot "for the receiving and delivery of stock at Louisville, Kentucky." After stipulations as to the reception and care of the stock, it is further provided that the railroad company will establish the premises of the stock.

yards or employed another company or corporation to supply the facilities for receiving and delivering live stock it was under obligation to the public to furnish."

yards company as its stock depot for the purpose of handling live stock to and from Louisville, and agrees not to sell, lease, or use, or license to be used, any part of its ground in or adjacent to Louisville for the There is no showing of the inadequacy of establishment of any other stock yards, or the Bourbon Stock Yards Company in the otherwise facilitate the establishment of matter of accommodations for receiving and any other stock yards in the city, and will caring for cattle. The defendant has there establish no other stock yards depot at or made provisions ample for the care of such near said city. The railroad company fur- stock with a company obligated to discharge ther agrees to establish Louisville rates to the duties in this behalf required by the and from the premises of the said company law of common carriers. Is the defendant on certain lines. It is apparent from these obliged by law to make Louisville delivery stipulations of the contract that the parties at other points by making connections for understood that the Central stock yards was other Louisville stock yards? We think intended to be, as in fact it is, a Louisville this question must be answered in the negastock yards, to be used, as is recited in the tive. To all intents it was so answered by contract, in building up the live-stock busi- this court in Butchers' & D. Stock Yards ness to and from Louisville. We have no Co. v. Louisville & N. R. Co. 14 C. C. A. question that the Central stock yard is as 290, 31 U. S. App. 252, 67 Fed. 35. In that distinctly a yard for the transaction of the case the railroad company had entered into business of receiving, keeping, and selling a contract with the Union Stock Yards Comof stock at Louisville as is the Bourbon pany, which made it the stock-yards depot stock yards, established for the same pur- of the Louisville & Nashville Railroad Compose by contract with the defendant company at Nashville. A spur track had been pany. The question on this branch of the run down Front street, in Nashville, for the case is thus narrowed to the consideration | accommodation of freight shippers not hanof the rights of the complainant to requiredling live stock. About 40 feet from this of the Louisville & Nashville Railroad Com- track the Butchers' & Drovers' Company pany shipments and transfers to the Central established an independent stock yards. Stock Yards Company, over the connection The Butchers' & Drovers' Company sought with the Southern railroad, of live stock a mandatory injunction to compel the railwhose destination is Louisville. The pecu- road company to build, or allow to be built, liar duties of a common carries of live stock | a side track connecting the spur track with are pointed out by Mr. Justice Field in North Pennsylvania R. Co. v. Commercial Nat. Bank, 123 U. S. 727, 31 L. ed. 287, 8 Sup. Ct. Rep. 266. The animals cannot be turned loose, or left without food or shelter in cars standing on the railroad tracks or sidings. They must be placed in suitable quarters, where they can be fed and cared for under the charge of competent agents. The nature of the property requires these services, essential to the discharge of the duty of the carrier in the safe transportation and delivery of live stock. For this purpose it is the duty of the carrier to make provision by suitable yards and proper equipment and competent persons to manage and control the care and delivery of the live stock. We perceive no reason why this duty cannot be discharged by contract with proper persons or companies who shall undertake the same under the responsibility of the carrier. Such a contract was enforced in Terre Haute & I. R. Co. v. Struble, 109 U. S. 381, 27 L. ed. 970, 3 Sup. Ct. Rep. 279. Justice Harlan observed in Covington Stock-Yards Co. v. Keith, 139 U. S. 128-136, 35 L. ed. 73-77, 11 Sup. Ct. Rep. 461, 464: "It did not concern them [the complainants] whether the railroad company itself maintained stock

the complainant's stock yards, there to deliver and receive cattle consigned or shipped by the complainant. The obtaining of the right of way and the expense of building the side track were not required of the defendant company, and are not elements essential to the disposition of the case in the opinion rendered by Judge Taft. The contention of the railroad company that, having established a live-stock depot in Nashville, for the reception and delivery of stock in that city, it could not be compelled to receive and deliver from another depot in the city, was sustained. Judge Taft quotes from the opinion of Judge Harlan in Covington Stock-Yards Co. v. Keith, 139 U. S. 128, 35 L. ed. 73, 11 Sup. Ct. Rep. 461, as follows: "We must not be understood as holding that the railroad company in this case was under any legal obligation to furnish, or cause to be furnished, suitable and convenient appliances for receiving and delivering live stock at every point on its line in the city of Covington where persons engaged in buying, selling, or shipping live stock chose to establish stock yards. In respect to the mere loading and unloading of live stock, it is only required, by the nature of its employment, to furnish such facilities as are reasonably sufficient for the

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business at that city. So far as the record | reasonable prejudice or disadvantage in discloses, the yards maintained by the ap- any respect whatsoever. Every common pellants are, for the purposes just stated, carrier subject to the provisions equal to all the needs, at that city, of ship- this act shall, according to their pers and consignees of live stock; and, if spective powers, afford all reasonable, the appellee had been permitted to use them proper, and equal facilities for the inwithout extra charge for mere 'yardage,' terchange of traffic between their respecthey would have been without just grounds tive lines, and for the receiving, forwarding, of complaint in that regard, for it did not and delivering of passengers and property concern them whether the railroad company to and from their respective lines, and those itself maintained stock yards, or employed connecting therewith, and shall not disanother company or corporation to supply criminate in their rates and charges bethe facilities for receiving and delivering live tween such connecting lines; but this shall stock it was under obligation to the public not be construed as requiring any such comto furnish. But, as the appellant did not mon carrier to give the use of its tracks or accord to appellees the privileges they were terminal facilities to another carrier enentitled to from its principal, the carrier, gaged in like business." [24 Stat. at L. 380, and as the carrier did not offer to establish chap. 104, U. S. Comp. Stat. 1901, p. 3155.] a stock yard of its own for shippers and consignees, the court below did not err in requiring the railroad company and the receivers to receive and deliver live stock from and to the appellees at their own stock yards in the immediate vicinity of the appellant's yards, when the former were put in proper condition to be used for that purpose, under such reasonable regulations as the railroad company might establish. It was not within the power of the railroad company, by such an agreement as that of November 19, 1881, or by agreement in any form, to burden the appellees with charges for services it was bound to render without any other compensation than the customary charges for transportation."

We think this language is no less applicable to the case under consideration. The Louisville & Nashville Railroad Company has by contract arranged for the discharge of its duties to shippers of live stock at the Bourbon stock yards. The proof does not show that these accommodations are inadequate, or the charges illegal. It would doubtless be convenient, and promote the business of dealers and shippers, if other facilities were afforded; but we find in the law nothing aside from a positive statute that requires more ample provision at the hands of the respondent.

The claim is that, having granted certain rights and privileges to the Bourbon Stock Yards Company, this section guarantees equal privileges to the Central Stock Yards Company. This construction of the act is not sustainable. It is the duty of the railroad company to provide reasonable facilities for the unloading and care of live stock. This duty it might discharge by itself furnishing sufficient facilities, or it might contract with others to make such provision. The respondent has chosen the latter course. By contract with the Bourbon Stock Yards Company it has provided facilities for the care of stock received at Louisville. These facilities cannot be denied to some and afforded to others. But this is far from saying that it was the purpose of the law to dictate to common carriers the means by which it shall discharge its obligations to shippers. To hold otherwise would be, having regard to the present case, to require the railroad company to make connections with as many stock-yard companies as may see fit to provide facilities equal to those furnished by the company or its agents. This would be carrying the act far beyond its terms and purposes. Kentucky & I. Bridge Co. v. Louisville & N. R. Co. 2 L. R. A. 289, 2 Inters. Com. Rep. 351, 37 Fed. 621.

These considerations dispose of this It is further alleged in the bill that the branch of the case. If it could be regarded refusal to make the desired shipping and as one involving the right to require one transfer of stock to the yards of the com- railroad to interchange traffic with another, plainant is a violation of § 3 of the Inter- the position of the complainant would be state Commerce Act, which provides: "That equally untenable. At common law a railit shall be unlawful for any common carrier road company is only bound to transport subject to the provisions of this act to freight to its own terminus. The rule is make or give any undue or unreasonable thus stated in Atchison, T. & S. F. R. Co. v. preference or advantage to any particular Denver & N. O. R. Co. 110 U. S. 667, 28 person, company, firm, corporation, or lo- L. ed. 291, 4 Sup. Ct. Rep. 185: "At comcality, or any particular description of mon law a carrier is not bound to carry traffic, in any respect whatsoever, or to sub- except on his own line, and we think it ject any particular person, company, firm, quite clear that, if he contracts to go becorporation, or locality, or any particular yond, he may, in the absence of statutory description of traffic to any undue or un-regulations to the contrary, determine for

R. Co. 2 Inters. Com. Rep. 763, 41 Fed. 559; Oregon Short Line & U. N. R. Co. v. Northern P. R. Co. 4 Inters. Com. Rep. 249, 51 Fed. 475; St. Louis Drayage Co. v. Louisville & N. R. Co. 5 Inters. Com. Rep. 137, 65 Fed. 39; Allen v. Oregon R. & Nav. Co. 98 Fed. 16.

himself what agencies he will employ. His | Rock & M. R. Co. v. St. Louis, I. M. & S. contract is equivalent to an extension of his line for the purposes of the contract; and if he holds himself out as a carrier beyond the line, so that he may be required to carry . . for all alike, he may, nevertheless, confine himself in carrying to the particular route he chooses to use. He puts himself in no worse position, by extending his route with the help of others, than he would occupy if the means of transportation employed were all his own. He certainly may select his own agencies and his own associates for doing his own work."

It is averred in the bill that the Southern Railway Company has notified the respond ent that it would be, and now is, willing to be responsible from points of physical connection with the Louisville & Nashville railroad for the delivery of such live stock and the collection of all charges on the same, and would promptly return to such points of connection all empty cars, and would account for all freight charges collected in the usual way. This may be true, and would possibly be a reasonable arrangement. But have the courts the right, in the absence of statute, to dictate to carriers the contracts they shall make in the interchange of traffic, and to require such to be carried out as the courts deem reasonable? The billing and transfer of freight from outside points over the two railroads is a matter of arrangement between them. The proportion of the joint tariff each shall receive, the handling of cars, the liability of one to the other, and other matters, are to be determined by the contract between the parties. Each controls its own railroad, and may determine for itself upon what terms it will unite in a joint tariff. No arrangement exists with the Southern railroad for the transportation and delivery of cars of live stock to the Central stock yards, if that can be assumed to be a station on the line of the Southern railroad; nor do we think a court of equity has the power to make one, and supervise its execution; nor has this right been conferred upon the courts by the Interstate Commerce Act. This doctrine is so thoroughly established as to require no more than the citation of the authorities in support of it. Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co. 110 U. S. 667, 28 L. ed. 291, 4 Sup. Ct. Rep. 185; Express Cases, 117 U. S. 1, 29 L. ed. 791, 6 Sup. Ct. Rep. 542, 628; Pullman's Palace Car Co. v. Missouri P. R. Co. 115 U. S. 587, 29 L. ed. 499, 6 Sup. Ct. Rep. 194; Northern P. R. Co. v. Washington Territory, 142 U. S. 492, 35 L. ed. 1092, 12 Sup. Ct. Rep. 283; Kentucky & I. Bridge Co. v. Louisville & N. R. Co. 2 L. R. A. 289, 2 Inters. Com. Rep. 351, 37 Fed. 567; Little

It is further alleged that the duty of complying with the complainant's demand rests upon the defendant company because of the requirements of the Constitution of the state of Kentucky and the laws passed in pursuance thereof. Assuming, without deciding, that the Kentucky Constitution and legislation require the defendant company to receive, deliver, transport, and transfer freight to any point that is in physical connection with the tracks of another company, so that the complainant has, as to traffic originating in Kentucky, the right to require that the shipment be received and transported in accordance with the prayer of the bill, the question remains, Have the Kentucky Constitution and statutes any operations beyond the limits of that state? The interstate commerce clause of the Federal Constitution has given rise to much litigation and frequent construction by the Supreme Court. It is thoroughly settled that the power of Congress to regulate commerce is plenary, and no state has the right to regulate purely interstate commerce. On the other hand, the state has the right to make provisions as to matters within its own boundaries intended as aids to commerce, not thereby regulating interstate traffic. Without undertaking to reconcile or consider the numerous decisions, we may refer to Mobile County v. Kimball, 102 U. S. 691, 26 L. ed. 238. Mr. Justice Field, with his usual clearness, has called attention to the sound rules of construction to determine what is and what is not within the power of a state: "Perhaps some of the divergence of views upon this question among former judges may have arisen from not always bearing in mind the distinction between commerce, as strictly defined, and its local aids or instruments or measures taken for its improvement. Commerce with foreign countries and among the states, strictly considered, consists in intercourse and traffic, including in these terms navigation and the transportation and transit of persons and property, as well as the purchase, sale, and exchange of commodities. For the regulation of commerce, as thus defined, there can be only one system of rules, applicable alike to the whole country; and the authority which can act for the whole country can alone adopt such a system. Action upon it by separate states is not, therefore,

permissible."

Page 702, 102 U. S., page | 162 U. S. 650, 40 L. ed. 1105, 16 Sup. Ct. 241, 26 L. ed. Rep. 934. But it is thoroughly well setIt is within the power of a state to re-tled that a state may not regulate interstate quire connecting tracks between two rail-commerce, using the terms in the sense of road companies at an intersection for the intercourse and the interchange of traffic transfer of cars used in the local business between the states. In the case at bar we of such lines of railroad. This may have think the relief sought pertains to the transbeen necessary for the accommodation of portation and delivery of interstate freight. state commerce. Wisconsin, M. & P. R. Co. It is not the means of making a physical v. Jacobson, 179 U. S. 287, 45 L. ed. 194, connection with other railroads that is 21 Sup. Ct. Rep. 115. So it is competent | aimed at, but it is sought to compel the cars for a state to require a railroad company to stop a certain number of trains each day at stations having a certain number of inhabitants, within the state. Such regulations do not interfere with the delivery or transportation of passengers traveling between states in such wise as to be regulations affecting interstate traffic. The statute simply amounted to requiring three trains of the company to stop at the station named each day. Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 43 L. ed. 702, 19 Sup. Ct. Rep. 465. Likewise a state may require a telegraph company to deliver a message. Western U. Teleg. Co. v. James,

and freight received from one state to be delivered to another at a particular place and in a particular way. If the Kentucky Constitution could be given any such construction, it would follow it could regulate interstate commerce. This it cannot do.

We reach the conclusion that no case was made justifying the relief prayed for, and that there was no error committed in dismissing the bill.

Judgment affirmed.

Affirmed by Supreme Court of United States, February 23, 1904.

ARIZONA SUPREME COURT.

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Louisiana Mut. Ins. Co. v. Tweed, 7 Wall. 44, 19 L. ed. 65; Fent v. Toledo, P. & W. R. Co. 59 Ill. 349, 14 Am. Rep. 13; Toledo, W. & W. R. Co. v. Muthersbaugh, 71 111. 572; Schmidt v. Mitchell, 84 Ill. 199, 25 Am. Rep. 446; Scheffer v. Washington City, V. M. & G. S. R. Co. 105 U. S. 249, 26 L. ed. 1070; Haile v. Texas & P. R. Co. 23 L. R. A.

Providing insulation sufficient to withstand lightning which may strike the wires is not within the obligation of an elec-774, 9 C. C. A. 134, 23 U. S. App. 80, 60 tric lighting company in carrying its wires into a building for the lighting of which it has contracted to furnish electricity.

(October 31, 1903.)

APPEAL by defendant from a judgment of the District Court for Maricopa County in favor of plaintiff in an action brought to recover the value of some of plaintiff's property which was alleged to have been destroyed by defendant's negligence. Reversed.

Fed. 557; Pullman Palace Car Co. v. Barker, 4 Colo. 344, 34 Am. Rep. 89; Bosch v. Burlington & M. R. Co. 44 Iowa, 402, 24 Am. Rep. 754; Michigan C. R. Co. v. Burrows, 33 Mich. 6.

There is a broad distinction between the

act which gives occasion for damages arising from other causes, which were not in the contemplation of the parties when the contract was made, and an act proximately causing the injury; and it is only for the latter that an action will lie.

Warwick v. Hutchinson, 45 N. J. L. 61. In determining what is the proximate the true rule is that the injury must be the natural and probable consequence of the negligence.

The facts are stated in the opinion. Messrs. Chalmers & Wilkinson and Herndon & Norris, for appellant: One is not to be held responsible in dam-cause, ages for the remote consequences of his act, or, indeed, for any but those which are proximate or natural and in contemplation of the parties.

NOTE. As to liability of owner of electric wire for injury caused by lightning conveyed thereby to building, see also, in this series, Jackson v. Wisconsin Teleph. Co. 26 L. R. A. 101, and Griffith v. New England Teleph. & Teleg. Co. 52 L. R. A. 919.

Seale v. Gulf, C. & S. F. R. Co. 65 Tex. 274, 57 Am. Rep. 602; Brandon v. Gulf City Cotton Press & Mfg. Co. 51 Tex. 121.

Messrs. A. C. Baker and Alfred Franklin, for appellee:

The doctrine of res ipsa loquitur should be here invoked.

Aycock v. Raleigh & A. Air-Line R. Co.

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