The answer filed by the railroad company specifically pleaded the eleventh paragraph of the contract which is quoted in the majority opinion, and alleges that, by virtue of this paragraph, the railroad company was to be held harmless for any liability for fire occurring on the industrial track where the car of seed was standing when it burned. If the railroad company can so exempt itself, paragraph eleven accomplishes that purpose, for it expressly provides that the railroad company shall be exempt from liability for damages from fire to property on the track "happening howsoever."
The majority do not set out the agreement for the use of the industrial track, nor shall we do so. It is quite lengthy, and is no doubt in the form used by thousands of shippers over the State whose interests are subserved by using industrial tracks. This is a service which the *Page 1179 railroad company cannot be required to render. We so expressly held in the case of Fairview Coal Co. v. Arkansas Central Ry. Co., 159 Ark. 649. The syllabus in that case reads as follows: "A railroad company which furnishes sufficient facilities for the receipt and delivery of freight cannot be required to receive freight on a private switch."
The railroad company was giving plaintiff a service which it was not required to give, and this service was being rendered pursuant to contract. There was neither statutory nor common-law duty to give plaintiff service on the private industrial track. The rights and obligations of the parties arose out of a private contract, and the real question is whether the railroad company may have the benefit of an exemption for which it contracted as a condition upon which it would render service upon the industrial track.
The majority say this clause of the contract exempting the railroad company from liability for fire is void under 843, C. M. Digest, because it imposes a limitation upon the railroad's common-law liability as a common carrier, contrary to that section of the statute. But if the contract is valid, the railroad company occupied the relation of a private carrier while the car was standing or moving on the industrial track, and the authorities hold that railroads may contract for an exemption from liability while granting a right which its common-law or statutory duties as a common carrier do not require it to perform. The validity of such an exemption as the one involved in this case was expressly upheld by this court in Clark v. St. Louis, I. M. So. Ry. Co., 132 Ark. 257.
The test to determine whether a carrier in a given case occupies the relation of common carrier or that of a private carrier is whether the carrier could be required to perform the service, and, as has been held by this court, a railroad cannot be required to serve private industrial tracks whenever an adequate service is otherwise rendered. A railroad may by contract agree to *Page 1180 serve a shipper on a private industrial track, and, when such a contract is made, the rights and obligations of the parties are dependent on the contract.
In volume 4 Elliott on Railroads (3d ed.), page 463, it is said: "While a railroad company cannot by contract or otherwise change the nature of its public duties or obligations, it may, where it is not under a duty or obligation to the public, contract to perform service in the character of a private carrier of goods or passengers. In other words, where there is a right to refuse to perform the services requested, there is a right to contract for their performance in a different capacity from that which rests upon a railroad company as a public or common carrier."
Here the railroad company had, by private contract, agreed to render service which its duty as a common carrier did not require it to perform, and it had agreed to render this service upon the express condition that its relation and obligation should not be that of a common carrier while rendering the service. The statute cited therefore has no application, because the railroad was not contracting against an obligation resting upon it as a common carrier. On the contrary, the purpose of the contract was to prevent that relation from arising. Such contracts are quite common; the railroads have the right to make them, and, when made, they should be enforced, and, if enforced, the railroad should be accorded the exemption against liability for which it contracted, which is a natural part of the consideration inducing the contract.
The writer and Mr. Justice WOOD therefore respectfully dissent. *Page 1181