There are a large number of coal mines in the Clearfield district, Tyrone division of the coal region, in the state of Pennsylvania. Between January 1, 1900, and December 31, 1905, the total output of the mines in the Clearfield district averaged 18,500 tons per day. When there was a car shortage, the Pennsylvania Railroad allotted to each mine a percentage of cars assigned to the district, calculated according to the capacity of the mine.
On this basis the Morrisdale Coal Company was entitled to about 4.8 per cent and the Berwind-White Company to about 18 per cent.
In 1908 the Morrisdale Company brought suit against the railroad for damages alleged to have been occasioned by an unfair distribution of cars to it and an undue allotment of cars to its competitor, the Berwind-White Company.
Alleging that in violation of its duty to see that no undue preference was given to any other person or corporation in the district, the carrier failed to assign to the plaintiff its fair proportion of the entire number of coal cars of the railroad company, to which plaintiff was entitled, and that this failure continued from the beginning of 1900 to the close of 1905, the effect of which was to subject plaintiff to unreasonable prejudice with respect to the facilities for shipping coal, as contrasted with the facilities furnished other competitors in the Clearfield district, and as a result of the unfair discrimination and the failure to furnish a proper allotment of cars and equal facilities, plaintiff was obliged to buy coal at various times in the outside market at prices then prevailing, in order to fill its contracts previously entered into,-to its damage, $250,000. The defendant entered a plea of not guilty and actio non accrevit infra sex annos. On the trial, the jury found that the exhibit showing damages of $67,156.07 was correct. 'If the court shall be of opinion that the questions of law involved in the case are in whole or in part with the plaintiff, we find for the plaintiff. If, however, the court be of the opinion that the questions of law are with the defendant, then we find in favor of the defendant.'
There was no conflict in the evidence, and in view of the admissions of the plaintiff, incorporated in the record, the facts can be briefly stated.
The capacity of plaintiff's mine was 4.8 per cent of the output of the Clearfield region, and having been furnished access to the books of the carrier, it made up a statement showing that during twenty-three months between March, 1902, and December 31, 1905, in which there was a car shortage, the Morrisdale Company received less than its 4.8 of all the coal cars in the Clearfield region, while the Berwind-White Company received more than its 18 per cent of all the coal cars in the region. This was admitted by the railroad, which insisted that during periods of car shortage it divided the cars into four classes:
1. Private cars, belonging to persons or corporations operating mines in the district;
2. Cars of foreign railroads, consigned to designated mines, to be loaded with fuel for such foreign railroads;
3. Pennsylvania Railroad fuel cars, consigned to designated mines to be loaded with fuel for railroad use;
4. The balance, or System cars, available for general use, it distributed among the various mines in the proportion their capacity bore to the total output of the Clearfield region, the plaintiff being allotted its due proportion, or 4.8 per cent. thereof.
The railroad explained that apparent excess of cars furnished the Berwind-White Company during the twenty-three months referred to was due to the fact that that company owned a large number of private cars on which it appeared that wheelage was paid, and submitted the following table showing the number and character of cars in the Clearfield region during those years:
Indi- Company Commercial
vidual coal System Foreign Box Total
1902 Cars placed 14,221 16,119 31,048 22,544 11 83, 1903 Cars placed 20,483 15,614 20,947 24,222 13 81, 1904 Cars placed 16,705 11,477 21,888 14,568 12 64, 1905 Cars placed 26,716 22,812 24,769 5,542 374 80, ------- -------- ------- ------ ---- ------- Total 78,125 66,022 98,652 66,876 410 310,
During the trial plaintiff admitted that there had been no intentional discrimination against it, but contended that its statement was made up from the books on the basis of what it considered to be the law of the case, under which all cars available for shipment of coal should be counted in the distribution.