at this day that common carriers of passengers are not insurers of personal safety, and that for an injury happening to the person of a passenger they are only liable for negligence in failing to use due care, diligence, or skill in and about their undertaking in order to prevent those injuries which human foresight and care can guard against. If there is any defect in the vehicle by which passengers are carried, and an injury occurs thereby, they are liable, if at all, on the sole ground of negligence. The form of the action, whether ex contractu, as claimed to be the case here by appellant's counsel, or ex delicto, does not affect the case under this statute. Carroll v. Railroad Co., 58 N. Y. 126, 134. The liability of the defendant as a carrier of passengers is referable to the question of its negligence. If the passenger through any accident is injured in his person, and his freedom from fault is established, the carrier is liable to him in damages if the proofs show that the injury occurred through its negligent acts, or of those of any of its agents or servants. Section 382, c. 4, Code Civil Proc., which contains the statutory provisions for the limitation of the time of enforcing a civil remedy, fixes a period of six years for the bringing of "an action upon a contract obligation or liability, express or implied," and for "an action to recover damages for an injury to property, or a personal injury, except in cases where a different period is expressly prescribed in this chapter." The fifth subdivision of section 383 fixes a period of three years for the bringing of "an action to recover damages for a personal injury resulting from negligence." This fifth subdivision of section 383 was a new provision, and furnishes the exception contemplated in the previous section. It repealed the provision of the former statute by which a period of limitation of one year was fixed for the commencement of an action to recover damages for personal injuries. Watson v. Railroad Co., 93 N. Y. 522; s. c. 15 Am. & Eng. R. R. Cas. 486. There should not be the slightest reason for misapprehending the intention of the legislature, or for misapplying the language of the sections. Where the source of the personal injury complained of is found to be in the negligence of the defendant, the action must be commenced within three years, or the statutory provision may be pleaded in bar. The learned counsel for appellant says that, if such a construction is given to the fifth subdivision of section 383, it will be difficult to mention a case to recover damages for a personal injury as provided in subdivision 3 of section 382, not covered by subdivision I of section 384, or by subdivision 5 of section 383. But he is quite mistaken. The third subdivision of section 382 applies to all cases where the personal injury results from acts other than those constituting negligence in the defendant. Illustrations are not difficult to mention. Such would be a case where an injury occurred to the person of the passenger because the carrier had failed to transport him, according to its undertaking, to the point of his destination; or where it had failed to furnish suitable or proper accommodations, and physical discomforts or sickness resulted; or because of unreasonable delay or detention from which he suffered in any demonstrable way. Subdivision 9 of section 3343 defines as personal injuries, in addition to those referable to subdivision I of section 384, the cases of seduction, malicious prosecution, and criminal conversation. In the case at bar the cause of action arose upon the principles of the common law, and was perfect and complete when the injury occurred to the plaintiff by reason of the negligence of the defendant in the breach of its legal duty to carry the plaintiff safely, and the statutory limitation of three years commenced to run at that time, and, the action not having been brought until after the expiration of that period, the defence of the statute was perfect. The judgment appealed from should be affirmed. All concur, except EARL, J., not sitting, and Danforth, J., not voting. Application of Statutes of Limitation in action for Personal Injury.--See Watson v. Forty-second St., etc., R. Co., 15 Am. & Eng. R. R. Cas. 486; Atchison, etc., R. Co. v. King, 15 Ib. 330; Alabama, etc., R. Co. v. Hawk, 18 Ib. 194. LINCOLN BOARD OF TRADE ย. BURLINGTON AND MISSOURI RIVER R. Co., in Nebraska, and CHICAGO, BURLINGTON AND QUINCY R. CO. (Interstate Commerce Commission, August 11, 1888.) Interstate Commerce - Municipal Subscriptions - Undue Preference.The fact that assistance in the shape of subscriptions by a city, and land grants by the State, have been given to a railroad company cannot be taken into consideration in considering whether such city is discriminated against, by undue preference in favor of another locality. Same-Competing Lines-Freight Rates--Distance.-The distance from Lincoln to Chicago by the Burlington system is 535 miles, or 106 per cent of the distance to Omaha, which is 508 miles by the same route. The shortest line from Chicago to Omaha is 490 miles. Held, that in estimating the freight rates from Chicago to Lincoln, the Burlington companies are not limited to a rate equal to 106 per cent of the rate to Omaha, but are entitled to charge an increased rate in view of the fact, that a shorter line exists which competes for the traffic. COMPLAINT by the Lincoln Board of Trade against the Burlington & Missouri River R. Co. in Nebraska, and the Chicago, Burlington & Quincy R. Co. for undue discrimination in freight rates, to the prejudice of the city of Lincoln. The complaint and answer, with the facts upon which the case turns, appear in the opinion. G. M. Lambertson and O. P. Mason for complainants. WALKER, C.-The complaint now to be disposed of forms part of a complaint against the same and other companies on the docket of the Commission as No. 94. The other issues presented therein relate to east-bound trans-continental rates, and are to be separately decided. Averments in The portion of said complaint now to be considered avers that the rates over the defendant lines from Chicago to Lincoln are unjust and unreasonable in themselves; that they are unjust as compared with the rates from complaint. Chicago to Omaha and other competing towns in Nebraska, and also as compared with rates prior to the passage of the Act to regulate commerce. It is averred that rates from Chicago to Lincoln, based on distance, would not exceed 106 per cent. of the rate from Chicago to Omaha, whereas in fact they are from 10 to 40 per cent. higher. It is also averred that Lincoln is a large jobbing point, a city of commercial importance, and in active competition with other cities of as imilar class for supremacy in trade; that it is the practice of the railroads to make large business centers ratebasing points, and in so doing to consider the equitable demands of trade; that this principle has been ignored by the defendants, so that while other jobbing points have equal access to points in Nebraska and throughout the west, Lincoln, as a result of high in-rates, is confined to a very restricted territory; and that this is not the result of unfortunate location, but of discriminating tariffs. It is further claimed that in making rates from Chicago to Lincoln the defendants should consider distance as a factor, and that the ratio of the rate should decrease with the increase of the distance, a principle which it is said the defendants ignore. The answer claims that the distances and rates are not correctly stated in the complaint; denies that the charges in question are in contravention of any of the provisions of the Act to regulate commerce, and insists that they are just and reasonable. The facts are found to be as follows: Facts. Lincoln is the capital of the State of Nebraska; a city of about 40,000 inhabitants; the center of a considerable jobbing trade, in which it competes with Omaha for the distribution of all classes of goods throughout central and northern Nebraska; the seat of two packing houses and several other manufacturing establishments; the crossing or terminal point of several railroads; and it is quite advantageously situated for all commercial purposes. The defendant companies are separate corporations which are operated in harmony and form what is commonly known as the "Burlington" system. The Chicago, Burlington & Quincy R. Co. operates the roads of that system east of the Missouri river, and the Burlington & Missouri River R. Co. in Nebraska operates those west thereof. Joint rates are made by said companies between points east of the Missouri river and points west thereof. The main line of said system runs westerly from Chicago through Burlington, on the Mississippi river, across the State of Iowa, crossing the Missouri river at Plattsmouth, and thence on through Lincoln to Denver in Colorado. Plattsmouth, Nebraska, is 21 miles south of Omaha and 487 miles from Chicago, making the distance from Chicago to Omaha over this route a total of 508 miles. Lincoln is 48 miles west of Plattsmouth, making its distance from Chicago a total of 535 miles, 106 per cent of the distance to Omaha. The Burlington line can use another route to Omaha, crossing the Missouri river at Council Bluffs, the distance by which is also 508 miles. The usual place of crossing, however, is from Pacific Junction to Plattsmouth, over a bridge owned by the "Burlington" system. Passenger trains are run vía Plattsmouth and thence north to Omaha; thence southwesterly, striking the main line at Ashland, distant 30 miles from Plattsmouth and 31 miles from Omaha. Freight trains are run directly west from Plattsmouth, through Ashland to Lincoln and points beyond. Freight destined for Omaha is hauled north from Plattsmouth to that city. The shortest rail line from Chicago to Omaha is 490 miles and from Omaha to Lincoln 54 miles. On that basis the Lincoln distance is something over 110 per cent. of the Omaha distance. On the basis of the shortest route to Omaha, 490 miles, and the shortest route to Lincoln, 535 miles, the Lincoln distance is something over 109 per cent of the Omaha distance. The various roads competing for business from Chicago to Omaha unite upon an agreed tariff to all Missouri river points. One of those roads is the Missouri Pacific, which reaches Omaha from the south, coming from Kansas City on the west side of the Missouri river. The latter company, conforming to the requirements of the fourth section of the Act to regulate commerce, makes rates to all points on its line south of Omaha no higher than the agreed Omaha rates, thus compelling the extension of the Missouri river rates on the Burlington system to points in Nebraska where its line crosses the Missouri Pacific. One of these points is Louisville, on the main line above described, distant 23 miles west from Plattsmouth and 30 miles east from Lincoln. Another is Dunbar, 47 miles east of Lincoln on a line running to Nebraska City. The rates from Chicago at the time the petition was filed. were as follows (tariff of August 22, 1887): Lum I. Omaha.... 2. 3. 4. 5. A. B. C. D. E. ber. Hard coal. 20 16.12 26 18 A reduced tariff, dated December 20, 1887, became generally effective March 26, 1888, after a so-called "rate war" among the roads. This tariff was not actually in force at the time of the hearing, but the case was tried and the briefs of counsel were prepared in view of the new rates then about to become operative, and which are now in force, as follows: By comparing the foregoing tables it will be seen that at the time of filing the petition the Lincoln rates ranged from 10 cents to 4 cents higher on the various classes than the rates to Omaha, Louisville, Dunbar, etc. At the present time the tariff ranges from 5 cents to 3 cents higher at Lincoln than the existing rates to Omaha and other Missouri river points. Before the act to regulate commerce took effect the difference in the printed tariffs from Chicago to Omaha and Lincoln was from 14 cents to 5 cents per hundred on the various classes, and the rates to both places were higher than at present. Rebates were freely given, however, and the Lincoln merchants were led to understand that by that means they were securing about the same rates charged Omaha merchants. But rebates were allowed to a considerable extent at Omaha also, and the disparity shown by the printed tariffs was in fact in that way substantially preserved. |