Walnut Coal Co. v. Pennsylvania Railroad

Citations

• 237 Pa. 410
• 85 A. 440
• 1912 Pa. LEXIS 950

Syllabus

<p>Practice, O. P. — Pleading—Averment of two causes of action— D emurrer— W aiv er.</p> <p>1. Where a statement of claim sets out two distinct causes of action, and the defendant fails to object by demurrer, but files the general plea, he cannot thereafter compel the plaintiff to elect as between the two causes of action averred.</p> <p>Railroads — Carriers—Discrimination as to car supply — Act of June 4 1888, P. L. 72.</p> <p>2. In an action against a railroad company to recover damages for injuries alleged to have been sustained by the plaintiff from a discrimination against it in the matter of a supply of cars in violation of the Act of June 4, 1883, P. L. 72, a verdict and judgment for the plaintiff cannot be sustained where the evidence shows only a negative reply to an application by the plaintiff to the defendant for permission to purchase and use on defendant’s line a number of wooden coal cars of a kind used by other coal operators which the plaintiff had an executory contract to purchase.</p> <p>3. In such a case the mere assertion by the railroad company of its rights to exclude from its tracks the cars which plaintiff proposed to buy entailed no’ loss or injury. Until the plaintiff was in actual possession of the cars it proposed to offer for service it was open to the defendant to retreat from the position it had taken if it so desired; it was equally open to the plaintiff to abandon its scheme of providing itself with private cars. The claim for damages therefore rests on nothing better than a pure hypothetical basis, since the injury complained of was never actually realized.</p> <p>4. The Act of June 4, 1883, P. L. 72, is a highly penal one, and is to be strictly construed.</p> <p>5. The Interstate Commerce Act does not deprive the courts of Pennsylvania of jurisdiction to entertain actions at common law, or under the Act of June 4, 1883, P. L. 72, for the recovery of damages for injuries caused by discrimination on the part of a common carrier alth