#### Joseph Dobbins, Respondent, *v.*Syracuse, Binghamton and New York Railroad Company, Appellant.

Third Department,

May 7, 1913.

Railroad — carrier — duty to furnish cars for transportation of freight — discrimination — evidence.

In an action against a railroad company to recover damages caused by its neglect, omission and refusal to furnish the plaintiff sufficient cars for the transportation by him of a large quantity of cabbages which he had in his storage house, evidence examined, and *held,*that the defendant failed to exercise reasonable care and diligence in supplying cars to the plaintiff, discriminated against him in favor of other shippers, and that a judgment for the plaintiff should be affirmed.

The ordinary duty of a carrier is to exercise reasonable care and diligence to furnish cars adequate for the transportation of freight, but not to discriminate in favor of one shipper when the demand exceeds the capacity of the carrier, and the anticipated and ordinary calls upon it.

Appeal by the defendant, the Syracuse, Binghamton and New York Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cortland on the 23d day of February, 1912, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 23d day of January, 1912, denying the defendant’s motion for a new trial made upon the minutes.

*W. S. Jenney*and *F. W. Thompson [A. D. Jenney*of counsel], for the appellant.

*Dowd & Dowd [Thomas H. Dowd*of counsel], for the respondent.

Howard, J.:

The law requires, and it did at the time of the transactions in question require, that “Every railroad corporation shall * * * famish sufficient accommodations for the transportation of all passengers and property which shall be offered for transportation at the place of starting, within a reasonable time previously thereto. * * * No preference for the transaction of the business of a common carrier upon its cars, * * * shall be granted by any railroad corporation to any one of two or *81more persons, * * * competing in the same business, or in the business of transporting property for themselves or others.” (Bailroad Law [Gen. Laws, chap. 39; Laws of 1890, chap. 565], § 31, as amd. by Laws of 1892, chap. 676; now Bailroad Law [Consol. Laws, chap. 19; Laws of 1910, chap. 181], § 51.) No statute of the State, no rule of the defendant and no decision of the courts prescribes the manner of offering property for transportation, the manner of ordering transportation, or the length of notice to be given beforehand of an intention to ship. Therefore, we must look to the conditions surrounding each individual case in determining whether the order for cars, the offering of property for shipment and the notice given are reasonable.

For many years before the winter of 1906-1907 Dobbins Brothers had been engaged in the cabbage business at Homer and other points along the defendant’s railroad. The defendant was thoroughly familiar with the traffic needs of the plaintiff’s business, and of the cabbage business in general, for that was a cabbage section. It knew the rush season of the business, it knew the storage capacity of Dobbins Brothers’ houses. The houses were located within seventy-five or eighty feet of the Homer station. In December defendant’s agent made an inspection of plaintiff’s (and when I say plaintiff I mean Dobbins Brothers) storage houses and saw the cabbage and was told that there were 3,000' tons to be shipped. The agent at that time promised to supply all the cars the plaintiff needed. The defendant knew the property was perishable. Most of it, the agent knew, was to go over defendant’s lines to Wilson Brothers in New York.

The defendant did not require an order in writing for cars; it had never done so; it did not require a certain number of days’ previous notice in ordering cars; it did not require the order to be made in any particular way. The parties dealt with each other informally, rather than by fixed rules; they had done so for many years; the defendant tolerated this informal manner of dealing, encouraged it, and participated in it until it had grown to be a custom on which Dobbins Brothers relied and on which they had a right to rely. Follow*82ing this custom and relying upon it Dobbins Brothers began to order cars in- the usual way. The defendant did not supply them as fast as they were needed and then the defendant would be told again that the plaintiff desired cars. The agent would promise the cars, would say he would do the best he could, would wire the division superintendent — he never rejected the orders, he never complained that they were not in writing or were not formal. The defendant had ample and reasonable notice of the plaintiff’s desire for cars, for the demand for cars was daily, persistent, urgent. The demand was not an “unexpected” demand such as that cited in defendant’s brief and referred to in Beale & Wyman Railroad Rate Regulation (§ 262), but a constant, reiterated, expected demand, and it was not only expected, but the defendant was well aware that it must arise and had for years arisen from the nature of the business. The plaintiff seems to have exhausted every argument and resource and to have resorted to every device to get cars, but without avail. He repeatedly and constantly importuned the Homer agents; he went to Cortland, saw empty cars there and tried to get them -from the Cortland agent; he twice wired Casey, the division superintendent, first on February seventeenth, then again February twenty-seventh. His telegrams were urgent; they were almost suppliant. They read as follows:

> “ M. B. Casey, Scranton, Pa.: ■

> “ Cabbage loaded on cars. Ho orders to let them run. Ho cars to load any more. How will we move two thousand tons on that service ?

> “DOBBIHS BROS.”

> “M. B. Casey, Scranton, Pa.:

> “We have orders west and south; trust you will give orders to let cars run and give us cars fast or stock will perish.

> “DOBBIHS BROS.”

Casey admits having on hand sufficient cars for all the defendant’s needs, although there was an unusual demand that winter for cars.

It is under these circumstances that we must measure the duty of the defendant to the plaintiff. The ordinary duty of the carrier is to exercise reasonable care and diligence to fur*83nish cars adequate for the transportation of freight, but not to discriminate in’ favor of one shipper when the demand exceeds the capacity of the carrier and the anticipated and ordinary calls upon it. *(Strough*v. *N. Y. C. & H. R. R. R. Co.,*92 App. Div. 584.) The question as to whether the defendant did in this case exercise reasonable care and diligence in supplying cars to the plaintiff was submitted to the jury. It was eminently proper that it should be submitted to the jury, and their determination of the question against the defendant is abundantly sustained by the evidence.

But the defendant contends that it cannot be held liable unless contractual relations are established. Without admitting this proposition to be true, it is sufficient to say that such relations were established. The plaintiff was constantly giving orders for cars; these orders were accepted, that is, the defendant promised to supply them — this was a contract.

There seems to be very little substance in the contention, presented with so much assurance at the argument by defendant’s counsel, that Dobbins Brothers were holding their goods for gambling and speculative purposes. It is easy to style any one a gambler who holds his goods for a better market. Within this meaning everybody who has products for sale is a gambler. The small farmer’s wife who keeps her dozen turkeys until the high prices at Thanksgiving time is, in this sense, a gambler. Dobbins Brothers had a right to hold their cabbage for a good market; they made their money by the profits on their trade. But so far as I can discover from reading the evidence, they made no attempt to hold their cabbage; they made every effort to the contrary. There was every reason why they should wish to sell it; there was no other way to make a profit. They certainly could not have contemplated, by the process of a lawsuit, “selling their rotten cabbage to the railroad,” as the defendant put it at the argument. To assume such a purpose is idle. The scheme would have been too uncertain, too hazardous even for a gambler. Indeed, they were constantly clamorous for cars to ship away their cabbage; there is no escape from this conviction. They were anxious about it; they grew alarmed, almost frantic as their loss grew more certain. Whether or not Dobbins Brothers were gamblers is immaterial to thjs court. Did theyhon*84estly attempt to procure cars and were cars refused them, is the question here. And were other competing shippers furnished cars while they were denied to this plaintiff, is also a question. Plaintiff’s moral attitude in handling cabbage helps not at all in determining either of these questions.

The plaintiff’s claim that Dobbins Brothers were discriminated against by defendant is not so well supported by evidence as is the plaintiff’s previous claim which we have discussed. There is sufficient, however, to warrant us in refusing to disturb the verdict on this subject. The evidence of Dewey, Litz and Mourin shows that, while Dobbins Brothers were having so much trouble, these witnesses had very little trouble in getting cars. They adopted substantially the same custom in ordering cars as that followed by Dobbins Brothers. So far as can be seen there was no reason to take care of them and neglect the plaintiff.

If the defendant is responsible at all the damages assessed are not extravagant. The evidence shows that the plaintiff suffered a much greater loss than the amount which the jury has awarded. -

The case was submitted to the jury on a charge without a flaw — fair, temperate, sound, correct in every particular, both as to the narration of facts and the statements of law. As I view the case Dobbins Brothers were wholly without fault, and the judgment should be affirmed, together with the extra allowance of costs.

Judgment and order unanimously affirmed, with costs.