would relieve the railroads and shippers from misunderstandings that will always follow if one party gets a lower rate than another for the same service. It might not be equitable in the present case to enforce a rule of which the party had no notice.

J. W. Russell and twenty-three others send to the Board of Railroad Commissioners a petition praying that the Board investigate complaint made by said Russell against the Central Iowa Railway Company, because of the neglect of said company to put in suitable crossing for the highway, where it crosses said railway in Buena Vista township, Jasper county, Iowa, known as Kappel's crossing.

The complaint alleges that the railroad company refuses to put in a suitable crossing on the line of the regular road, and want to turn the road down the hill and east of the laid out highway, and cross the railroad track some ten or fifteen rods to the east at grade. The complainants claim that it makes a bad and dangerous crossing at this place, and also makes a bad road. They claim that by moving the highway a few rods to the west, a good overhead crossing can be made at but little expense, and ask that an order of this Board be made to this effect. After a personal inspection of the ground by the Board, they have concluded that an overhead crossing for the highway is not only practicable, but altogether the better one to make. It is therefore the recommendatlon of this Board, that the Central Iowa Railway Company at once put in such a crossing for the public highway at that place and that it be put in at the most practicable point for such an overhead crossing, not to exceed ten rods west of the present laid out road at that point. .

Des Moines, June 11, 1884.

V. J. WILLIAMS IMPLEMENT COMPANY, DUBUQUE, IOWA,

VS.

Overcharge.

BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY CO.

Filed, April 4, 1884.

DECISION OF THE COMMISSIONERS.

V. J. WILLIAMS, ESQ., Dubuque, Iowa:

DEAR SIR-Your letter of April 3d, alleging an overcharge on the part of the Burlington, Cedar Rapids & Northern Railway Company of $1.13 on certain goods, has been received. The company say: "The cause of rate of forty-three and a half cents per hundred pounds from Cedar Falls is that bill for machinery did not read 'O. R.' It should be 'O. R.' to be billed at first class;" and to this you reply by saying that you claim that "in paying first class rate, you are entitled to the benefit of the ordinary care and caution required of common carriers by the law, and they have no right to charge us (you) one third more as an insurance premium to them for a risk which belongs to them as common carriers."

The rate charged you is in accordance with the terms of what is known as the, Joint Western Classification adopted by many roads, including the Burlington, Cedar Rapids & Northern. Before its adoption it was submitted to the Commissioners for approval and the Commission as then organized, in general terms approved the same. The articles shipped are agricultural implements and they are marked in the joint classification as first class. In the special instructions the following are found:

"4. When a reduced rate is given on account of owners assuming the risk, shippers must note 'owner's risk' on the shipping order; when this is omitted the freight will be charged at the highest rates and forwarded at carrier's risk.

"5. When the classification makes an article 'released,' or 'owner's risk,' the same will be one class higher if taken at carrier's risk unless otherwise provided in the classification. Articles rated first class, released or owner's risk, if taken at company's risk will be charged one and one-half to one unless otherwise provided in the classification."

It is evident from the note under the head of agricultural implements that the risks here referred to are those (of “breaking and chafing." Your position is, as we understand it, that the lower rate must be regarded as reasonable, and the other or higher rate must be regarded as an additional sum charged for insurance, that as common carriers the railway companies must, under the laws of Iowa, insure and have no right to make an additional charge therefor., We suppose you refer to section 1308, Code of 1873, which reads as follows: "No contract, receipt, rule or regulation shall exempt any corporation engaged in transporting persons or property by rail

way from liability as a common carrier, or carrier of passengers, which would exist had no contract, receipt, rule or regulation been made or entered into." This section is declaratory of the common law and we suppose its purpose is to preserve the common law liability notwithstanding any contract, receipt, rule or regulation. Carriers are not liable for losses arising from ordinary wear and tear of goods in the course of transportation nor for their inherent natural infirmity or tendency to damage.

Lawson on Carriers, section 14.

Story on Bailments, section 492, note a.

3d Kent's Commentaries, pp. 299-301.

The risks of breaking and chafing seem to us to be the result of inherent natural infirmity and tendency to damage in the class of goods under consideration, nor do we regard the lower as the unit or reasonable rate. Remembering their liability as carriers, the companies included in the Joint Western Classification fix a rate which shall be the rate unless some express contract is made. Submitting this to the Commissioners, they approve the rate. Using the language of the Commissioners in another case for the purposes of this case, this rate must be assumed to be reasonable. Under the classification if the owner will take certain risks, the companies will carry at lower rates. The liabilities to be relieved from are not the common law liabilities. But to avail himself of this rate, the shipper must note "owner's risk" on the order.

In this case you failed to do this, and there could be no express contract between you and the Burlington, Cedar Rapids & Northern Railway Company with reference thereto. The goods were carried on the regular rate, presumed to be reasonable, and in our opinion there was no overcharge. As to your statement that the Illinois Central Railroad Company carried the freight at their regular tariff rate as first class, we are informed by a letter from the President, dated June 9, 1884, that "the company is not in the habit of carrying articles marked under the Joint Western Classification as first class, at owner's risk, unless so stated upon the shippers receipt, or unless shippers request us to issue bill of lading in accordance with the 'owner's risk' rates.

"In this particular case the shipping clerk at Dubuque was not careful enough in looking over the shipping book, and we should have charged the 'company's risk' rate.” So it seems this mistake resulted in your having your goods shipped at less than schedule rates.

By order of the Board.

Des Moines, June 10, 1884.

E. G. MORGAN, Secretary.

WISCONSIN, IOWA & NEBRASKA RAILWAY CO.

VS.

Refusal to switch cars from packing house at Marshalltown.

CHICAGO & NORTHWESTERN RAILWAY CO.

Filed April 14, 1884.

DECISION OF THE COMMISSIONERS.

On April 12, 1884, Williard T. Block, General Freight Agent of the Wisconsin, Iowa & Nebraska Railway Company, makes a complaint against the Chicago & Northwestern Railway Company, the substance of which is that the company he represents has made a number of shipments of live hogs to the packing house at Marshalltown, which the C. & N. W. R'y switched over their packing house track on the payment of the usual switching charge. He says: "According to the usual arrangements in like cases, the product out from the packing house was to be divided among the roads in proportion to the number of hogs taken in by the roads. For awhile the C. & N. W. allowed our cars to go for freight from the packing house, but after two shipments out had been made, they issued instructions not to allow on tnis track cars for the product out, yet allowing cars with live stock to go to the packing house." Mr. Block asks whether the C. & N. W. Road can refuse to haul his empty cars for product out to market.

The reply of Mr. Hughitt, General Manager of the C. & N. W. is: "We cannot share with other railways at junction stations facilities of this nature provided at the expense of our own company and for its sole use and benefit.'

The entire complaint and reply in the above extracts bring fully before the Commissioners the points to be decided. Whatever rights the W., I. & N. Railway have in this case that the Commissioners can determine, are derived from section 1292 of the Code, which reads as follows: "Any railway corporation operating a railway in this State, intersecting or crossing any other line of railway of the same gauge, operated by any other company, shall, by means of a Y or other suitable and proper means, be made to con'nect with such other railway so intersected or crossed, and railway companies, where railroads shall be so connected, shall draw over their respective roads the cars of such connecting railway, also those of any other railway or railways connected with said roads, made to connect as aforesaid, and also the cars of all transportation companies or persons, at reasonable times and for a compensation not exceeding their ordinary rates."

Does this section apply to the lines of roads built and maintained for the use of the public alone, or does it apply to all sidings, spur-tracks, and the conveniences furnished for the use and benefit of individual enterprises, as in this case? We understand from the papers that this spur-track to the pork house was built by the C. & N. W. R'y Co. for the sole purpose of de

livering hogs and taking the product to their line of road; that it was built at considerable cost and that the usual mileage rates charged for switching would not be a compensation for the service rendered and a suitable interest on the value of the plant beyond the cost of maintenance. A charge for hauling cars over the line of road that was doing a general business would be no compensation for the slight traffic of this spur-track, and the compensation must be in the profit made on the long haulage of the pork product. The implied contract in making the expenditure the Commissioners believe to have been the transportation of the hogs in, and the product out to market over a long line of its own road, and any other is hardly consistent with the motives that prompted the outlay. The W., I. & N. Railway are not precluded from the right to compete for this business, and can, if they desire, build a spur-track to the pork house, and avail themselves of the benefit of their enterprise.

Complainant writes the Board that he owns that part of the northwest quarter of section number twenty-nine, township number ninety, north of range number thirty-four west, which lies south of the Illinois Central Railroad, near the village of Fonda, and that he desires to convert it into a pasture for his stock. He has asked the company to fence along their track on the side next to and adjoining his land, but this they decline to do. He therefore asks the Commissioners whether they have authority to require railroad companies to fence their track, and if so, to see that it is done in his case. The Board advised Mr. Curtis that no power was given them to aid him in the matter, and referred him to section 1289 of the Code, which prescribes the duties of railway companies as to fencing their lines of road.