(concurring). The basis of the plaintiff’s claim for damages in this case is the alleged fact that defendant induced it to open up and operate coal mines under a promise to furnish sufficient transportation facilities, thus supplementing the duty imposed by law upon the'railroad company to furnish such facilities and to properly equip itself for that purpose. A failure to furnish cars in performance of that promise and of such legal duty is charged. The evidence shows that there is a market on defendant’s line of road for only a small percentage of coal mined thereon, and that the greater percentage of coal shipments go off the line. Therefore, most of the cars required for shipment of coal were to go off the line. This was necessarily in contemplation of the parties, and forms a basis of plaintiff’s case that it and the other coal operators were to be furnished cars to be sent off defendant’s line. Yet the court, by giving instruction number four at plaintiff’s request, refused to allow the jury to consider the fact that cars were off the line, which defendant by the most diligent effort could not regain, in determining whether or not the defendant was excusable for failure to furnish all the cars demanded. The effect of this instruction was to tell the jury that the failure to get back cars sent off the line could not under any circumstances justify a failure to furnish all cars demanded by shippers. The manifest injustice of giving this instruction (number four) is seen when it is read in connection with the one which precedes it. One tells the jury that defendant was bound to furnish cars to be sent off its line, and the other that the failure to get the cars back afforded no excuse for failing to furnish all cars demanded. They ground the defendant between the upper and nether mill-stones, requiring it to furnish cars to be sent off the line but not allowing it excuse, under any circumstances, for failure to get them back.
These instructions are as follows:
“3. You are instructed that if the proof shows that the defendant, the Midland Valley Railroad Company, induced persons to open coal mines along its line of road, and further induced such persons, including this plaintiff, to enter into contract by which the defendant was to have the exclusive tonnage arising from said mine, and you further believe that in the contract with plaintiff it was provided that it should not ship its coal by another line than the Midland Valley Railroad, and if he did so they should pay a penalty, and if you further believe that only a small percentage of the coal mined on the line of the Midland Valley Railroad should be along such lines, that the defendant knew this, and if you further believe that plaintiff’s coal was of such character that it could not be unloaded at the terminus of defendant’s line to be taken by a connecting line without serious deterioration in quality and value, then the Midland Valley Railroad Company could not put an embargo on its cars as to this plaintiff, and prevent them from going beyond its own line .and upon connecting lines of railway.”
“4. You are further instructed that the fact that connecting lines have failed and refused to return promptly the cars of the defendant is no valid legal excuse or defense in this case absolving the defendant from its obligation to furnish with reasonable promptness and diligence sufficient cars for the transportation of plaintiff’s coal.”
There was testimony tending to show that during the coal shipping season of 1906-1907 (within which time the alleged damages in this case accrued) there was an unprecedented and extraordinary demand for cars for shipment of coal and other commodities, and that the same could not reasonably have been anticipated by the officials of the railroad company; that when the car shortage began the officials of defendant company not only ordered a large number of cars from car builders, but made diligent effort to regain the cars which had been sent off the line from time to time. These officials testified concerning the rules of the American Railway Association, which prescribed a penalty of 50 cents per day for failure to return cars, and also testified that, by interviewing and corresponding with officials, superintendents and traffic managers of other roads, they made persistent efforts to get the cars back, but that on account of the congested condition of traffic they were met with promises which were not fulfilled. They testified that the penalty prescribed by the rules of the Railway Association was ineffectual to cause the return of cars during this time, but how long this penalty had proved ineffectual is not disclosed by the testimony.
This testimony entitled the defendant to have the jury consider, along with other facts and circumstances in the case, the fact that cars iwere off the line, and that return thereof could not be secured, in determining whether or not the defendant was excusable for its failure to furnish cars to plaintiff at the times complained of.
The fact that cars off the line could not be regained would not under all circumstances afford excuse for not securing others to be furnished to shippers when demanded. Cars wholly beyond the control of a carrier are the same as if not owned at all, and their places should be supplied with others except when the conditions are only temporary and a return to normal conditions may soon be reasonably expected. A railroad company is required to anticipate and provide only for normal conditions of traffic unless it has reasons to anticipate others; and during a temporarily abnormal condition of traffic it would certainly be unjust to a company to require it to furnish a new car for every one sent off the line in fulfillment of a contract previously made with shippers, even though it had made and was then making every reasonable effort to secure the return of its cars. We find nothing in the case of St. Louis S. W. Ry. Co. v. State, 85 Ark. 311, which conflicts with the views here expressed. That was a case where the railway company was sued to recover a statutory penalty for failing to furnish cars for intrastate shipments. The finding of the Railroad Commission made out a prima facie case against the company for failing to furnish cars, and it attempted to justify the failure by showing that it owned enough cars to supply the demands of its shippers if connecting lines would return its cars, but that its cars had not been returned by connecting carriers. There was a jury trial, and verdict against the railway company. The trial court submitted the case to the jury on unobjectionable instructions as to this question; but the company insisted here that the evidence adduced, which was undisputed, established the fact that on account of the failure of connecting carriers to return cars its stock was depleted, and •that this excused it for the failure to furnish cars on the occasion complained of. The evidence showed that the penalty fixed by the rules of the American Railway Association for failing to return cars was ineffectual, and would not accomplish its purpose, and that this had been demonstrated for two or three years prior to the time in question. This court held that the railway company had the choice either to send cars off its line under regulations sufficient to cause a reasonably prompt return or not to send them at all, and that when it acquiesced in a regulation which had been proved to be ineffectual to cause return of cars, it could not set up, as an excuse for failure to provide equipment to shippers, the fact that its cars were on the lines of other carriers.
The difference between the two cases is that in one the railroad had the choice of keeping its cars on its own line unless a better regulation was agreed upon to cause the return of the cars, and in the other the railroad was bound by its contract with coal shippers to furnish cars to be sent off its line; and in one case the undisputed proof showed that the regulation for return of cars had broken down or proved ineffectual for several years, and in the other case there is no proof when the regulation became ineffectual.
We conclude that in the present case the court erred in giving the fourth instruction requested by plaintiff. All concur in the opinion of Mr. Justice Hart on other points, and all concur in this additional opinion except him.