Pacific Electric Railway Co. v. Petroleum Midway Co.

HAHN, J.,

pro tem.

Appeal by plaintiff Pacific Electric Railway Company from a judgment for the defendant Petroleum Midway Company, Ltd., in an action brought to recover judgment for $657, claimed by plaintiff as owing from defendant for demurrage charges on certain carloads of freight consigned to the defendant.

The record fairly justifies the following brief statement of the material facts necessary to a consideration of the legal question which, in our opinion, is determinative of this appeal.

Plaintiff and appellant is’ a public carrier with tracks located in and about Wilmington, California. The defendant and respondent operates an oil refinery at Wilmington. During the month of June, 1923, an ocean freighter carry

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ing a consignment of manufactured steel for respondent, instead of docking at its usual wharf at San Pedro, where the respondent expected to receive the steel, unloaded its cargo at East San Pedro, and delivered to the Union Pacific Railroad Company the steel in question to be delivered over its rails to respondent at "Wilmington. It required thirty-two ears to carry the steel, these cars being loaded and delivered in lots of six to eight ears at a time. The Union Pacific moved the cars over its tracks to Wilmington, where it delivered the cars to appellant’s tracks for delivery by it to respondent. Upon receipt of the cars on appellant’s track, Mann, appellant’s agent at Wilmington, caused them to be placed in the general storage yards, because appellant’s published tariff provided no rates for spotting cars received under the conditions affecting these cars on its public unloading track. Thereupon Mann telephoned to A. P. Lee, traffic manager for respondent, advising him that appellant bad-these cars of steel for delivery to respondent in its general storage yards, and that he could not spot them on its public unloading track because of the tariff difficulty. Lee protested the fact that the steel was in the hands of the railroad company, pointing out that under respondent’s orders the steel was to be delivered to it by the steamship company at a wharf at San Pedro. In this conversation it was suggested by Mann that the tariff difficulty might be avoided if permission were obtained from some utility having a private side-track connected with appellant’s track to place the cars of steel on such side-track for unloading. The conversation ended without any determination of the question as to where the cars were to be spotted, but with a definite declaration by Mann that before the cars could be spotted on appellant’s public unloading track as requested by Lee, permission would have to be secured from the traffic department of appellant at Los Angeles.