(after stating the facts.) This was an «action under section 6804 of the Digest (Kirby’s) for failing to furnish cars. That section among other things provides: “It shall be unlawful for any person or corporation engaged alone or associated with others in the transportation of passengers or property by railroad' in this State, as freight or express, * * * to make any preference in furnishing cars or motive power. And all persons or corporations engaged as aforesaid shall furnish, without discrimination or delay, equal and sufficient facilities for the transportation of passengers, the receiving, loading and unloading, storing, carriage and delivery of all property of a like character carried by him, them or it; and shall perform with equal expedition, and at uniform rates, the same kind of services connected with the contemporaneous transportation thereof as aforesaid,” etc. Section 6808 provides the penalty for a violation of the act.
• The 'statute did not intend to make the duty of carriers to furnish transportation facilities an absolute one, for it would be unreasonable to conclude that the Legislature intended to impose upon them duties that under certain conditions could not be anticipated by them, and which it would be impossible to perform, and yet for such nonperformance to exact of them heavy penalties. The statute under consideration is but declarative of the requirements of the common law as to the duty of furnishing transportation facilities. After declaring what that duty is, it prescribes the penalty for its nonperformance.
“A common carrier for such goods as he undertakes to carry, is bound to provide reasonable facilities of transportation to all 'shippers at every station who, in the regular and expected course of business offer their goods for transportation. The carrier is not required to provide in advance for any unprecedented and unexpected rush of business, and therefore will be excused for delay in shipping, or even in receiving goods for shipment, until such emergency can in the regular and usual course of business be removed.” Little Rock & Ft. Smith R. Co. v. Oppenheimer, 64 Ark. 271, 279; 4 Elliott, Railroads, § 1470; Hutch. Car. § 292; 6 Cyc. 372, note 2.
To be sure, the carrier is liable where he fails entirely to furnish transportation. But the liability of the carrier under the act? of March 11, 1899 (Kirby’s Digest, § 6804), is founded, not so much- on the inadequacy of the facilities at his command to supply the demands of shippers, as on his refusal or failure to make the facilities, which he has, available to all who are similiarly situated, without discrimination or delay. For the act makes it the duty to furnish without discrimination or delay. So, if the carrier, by reason of some unforeseen and unusual or unprecedented condition in the traffic, is unable to furnish cars for the accommodation of all shippers, he must, in order to escape liability, under this statute, furnish such- as he has to all shippers without discrimination or delay.
It is conceded that appellant failed to furnish to the shippers of cotton seed at Rector all the transportation needed, but its failure to do this is accounted for in a way to exempt it from liability according to the doctrine above mentioned. So the question at last is, did appellant discriminate against the appellee in furnishing what cars it could procure ? In Little Rock & F. S. R. Co. v. Oppenheimer, supra, and Choctaw, O. & G. Rd. Co. v. State, 73 Ark. 373, it is shown that, to constitute actionable discrimination in the matter of failing to furnish transportation facilities, there must, be some undue or unjust preference, something in the facts tending to show that the conduct of the carrier was superinduced by a desire to favor one shipper over another, to give an unjust preference to one over the other, and thereby to attempt to create a monopoly — to “pull down one man’s business while building up another’s.” But if the facts show that “those who are in substantially the same situation with reference to the carrier are treated with the same consideration and accorded the same privileges, there can be no actionable discrimination.”
Now, here the shippers were in substantially the same situation, and, it seems to us, the uncontradicted facts show that they were given substantially the same facilities for transportation during the cotton season. In September appellee was given five cars, and the Rector Gin Company, a rival shipper, was given six; but in November the appellee received ten cars, while the Rector Gin Company received only seven, and in the month of October, appellee and its rival each received seventeen cars. True, the proof shows that from the 3d to the loth'of October appellee received only three cars while its rival received six, but during that entire month they each received the same number. Had appellee received cars from the 3d to the 10th of October to make it equal to the Rector Gin Company, it would have been entitled to only one car more, as there could not he fractional cars. It is in the very nature of the business impossible for mathematical precision to be observed in the manner of the distribution of cars to the various shippers at any given station. This necessarily results from the difference in the demands that will be made by different shippers, although they may be in substantially the same situation with reference to the carrier and the commodity to be shipped. The undisputed facts here convince us that there was no such difference as to constitute a discrimination, within the purview of the above statute.
Reversed and remanded for a new trial.