This cause has been the subject of much and long continued controversy. This is its third appearance in this court. The previous history of the litigation is set out in 242 U.S. 89, 37 Sup. Ct. 49, 61 L. Ed. 165. The action is based upon a reparation order made by the Interstate Commerce Commission in favor of Jacoby & Co. A recovery was had in the sum awarded by the Commission, with interest. At the first trial plaintiffs did not introduce the record of the testimony before the Commission. The defendant railroad company introduced testimony tending to show that the Commission in making its award of damages had used a table, attached as Exhibit 10 to the record of the case, showing a discrimination of the railroad company against the plaintiffs in the distribution of coal cars in times of shortage, and produced a witness who testified that the effect of the use of the percentages in that table as the basis of awarding damaes by the Commission was to give plaintiffs the undue preference in the distribution of coal cars which favored shippers had received. That being so, this court held that the recovery of a sum thus arrived at would defeat the purpose of the act to place shippers on a basis of equality. For the refusal of the trial court to give a charge based upon such use of the table the judgment of the Circuit Court of Appeals for the Third Circuit, affirming that of the District Court, was reversed, and the cause remanded for a new trial. The second trial in the District Court resulted in a verdict and judgment for the plaintiffs in the sum awarded by the Commission with interest. Weber v. Pennsylvania R. Co., 263 Fed. 945. That judgment was affirmed by the Circuit Court of Appeals (269 Fed. 111), and the case is again here.
We need not repeat the discussion concerning distribution of cars in times of shortage which was held to result in undue advantage. See 242 U.S. supra, at pages 90, 91, 37 Sup. Ct. 49, 61 L. Ed. 165; Hillsdale Coal & Coke Co. v. P. R. R. Co., 19 Interst. Com. Com'n, 362, 363, 364.
At the last trial the testimony before the Commission was put in evidence, with some additional testimony tending to show that plaintiffs had been discriminated against because of the special allotment to the Berwind-White Company of 500 cars daily, and the sale to it, and to other companies, of a large number of cars in times of car shortage. There was evidence tending to show that but for these discriminations the plaintiffs would have received a sufficient number of cars to furnish them with all they needed during the periods complained of.
The Commission in the report condemned the practice of giving to the Berwind-White Coal Company 500 cars daily by special allotment, and the selling of the company's own cars during the same period to favored shippers, thereby diminishing its capacity to supply the coal car requirements of other coal companies along its line.
When the Commission came to assess damages, it allowed the plaintiffs $21,094.35, with interest from January 28, 1907. The order on which this award was made is set forth in 242 U.S., supra. Upon the new trial, with the additional testimony and the whole record of the Commission introduced in evidence, the judge, after charging the jury that there might be a recovery, if the discriminations alleged and proved resulted in damages in the sum awarded by the Commission, charged: