Opinion by
Williams, J.,Plaintiff sued to recover demurrage charges in accord*135anee with its published tariffs. Rule IV, sub-section (a), of these tariffs provides:' “Consignee shall be notified by carrier’s agent in writing, or as otherwise agreed to by carrier and consignee, within twenty-four hours after arrival of cars and billing at destination, such notice to contain the point of shipment, car initials and numbers, and the contents, and, if transferred in transit, the initials and number of the original car. In 'case car is not placed on public delivery track within twenty-four hours after notice of arrival has been sent a notice of placement shall be given to consignee.” Sub-section (c), of Rule IV, provides that “delivery of cars upon private or industrial interchange tracks * will constitute notification thereof to consignee.”
Defendant’s affidavit of defense avers, inter alia, that it received no notice of the placement of the cars, upon which demurrage was claimed, upon the side track at Elkhorn, W. Va., as required by Rule IV a, and that it had not waived such right. The side track upon which these cars were placed being a so-called private switch, plaintiff moved for judgment for want of a sufficient affidavit of defense, because, inter alia, no notice of placement was necessary under Rule IV c. The court below discharged the rule.
The question is whether the giving of notice in accordance with Rule IV a, of the placement of cars upon the particular switch must be proven by plaintiff to establish a prima facie case. The reason given in the opinion of the court below is herewith adopted as a conclusive answer.
The appeal is dismissed at the cost of appellant.
Kephart, J., dissents.