(dissenting).
The issue in this case, reduced to its simplest terms, is whether, under the evidence, the service of switching and spotting cars within the plant of the petitioner is a terminal service which the carriers are obligated to perform under their line-haul rates, or whether it is a plant service not covered by the line-haul rates. The Interstate Commerce Commission is of the opinion that it is a plant service, and the industry believes that it is a reasonable and customary terminal service. It may be conceded that if, under the evidence upon which the Commission’s findings and order are based, this .question of fact is doubtful ■or debatable, rather than purely speculative, the Commission’s order should stand. I am unable to convince myself that the evidence justifies a finding or inference that there are interferences or obstacles to the performance by the carriers of switching and spotting service for the industry which converts what would otherwise be a terminal service into a plant service. It seems to me that the evidence tends to establish that the performance by the carriers of terminal service for the industry would not be any more burdensome than similar services performed by these carriers for other smaller industries connected with the carriers’ lines by the spur or industrial tracks. It is ■not my understanding that a carrier is entitled to spot cars at any industry at the ■carrier’s sole convenience. Obviously, ■spotting service performed by a carrier on an industry track which serves two or more industries or which is used by two or more carriers must be done under some arrangement between the carriers and industries. Where such an arrangement .is practical, the fact that a carrier is obliged to consult the convenience of an industry or that of another carrier in delivering and' spotting cars, should not ordinarily excuse the performance of a terminal service which is covered by the line-haul rates. Demurrage rules take care of unreasonable delays in accepting delivery. While the evidence indicates that this industry weighed cars handled by it after they were received from the carriers, there is no evidence that if the carriers had been1 required to perform the terminal sevice, the industry would have insisted upon the cars being weighed by them or would have refused to compensate them for weighing such cars as were required to be weighed. The fact that the Interstate Commerce Commission denied a rehearing, asked for by the petitioner because weighing of cars in the plant had been dispensed with, is some indication that the weighing of cars was not regarded by the Commission as a matter of controlling importance.
If the evidence, taking that view of it most favorable to the Commission, is as consistent with the hypothesis that the terminal services which the petitioner insists that the carriers must either perform or pay for are reasonable and customary terminal services covered by the line-haul rates, as with the hypothesis that they are plant services not covered by the line-haul rates, it (the evidence) tends to establish neither hypothesis, but leaves the question in the realm of conjecture. Ewing v. Goode, C.C.S.D.Ohio, 78 F. 442, 444; Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720; Stevens v. The White City, 285 U.S. 195, 204, 52 S.Ct. 347, 76 L. Ed. 699; Eggen v. United States, 8 Cir., 58 F.2d 616, 620; Deadrich v. United States, 9 Cir., 74 F.2d 619, 622; Claywell v. Inter-Southern Life Ins. Co., 8 Cir., 70 F.2d 569, 571; Svenson v. Mutual Life Ins. Co. of N. Y., 8 Cir., 87 F.2d 441, 443.
I think that the order of 'the Commission should be enjoined for the sole reason that the evidentiary base on which it rests is too weak to support it.