Rodeff v. Railway. Plaintiff contends that the negligent act of the defendant consists in directing the carrying of this rail across this decline in an improper manner, and that by reason of the inequalities in the ground, the burden of the rail would be shifted unequally upon the workmen. The statement further shows that this greater burden was placed upon the plaintiff and the man stationed at the side near where he was standing, and that the men opposite plaintiff were standing on lower ground and their lifting capacity thereby to a great degree impaired, and that when they started to carry the rail the workman next to the plaintiff on the same side stepped down from the track in advance of the plaintiff, thereby lessening his capacity to lift, and shifting the great proportion of the burden to the plaintiff. The employment in which the plaintiff was engaged was the simple operation of assisting in the carrying of a heavy burden, an operation which is nearly, if not quite, as simple as the familiar one of carrying a trunk up or down stairs. We have given careful attention to the oral and written arguments of counsel and are unable to find any such negligence of the defendant as would render it liable. The case is, in our judgment, directly within the rule announced in Stenvog v. Transfer Ry. 108 Minn. 199 [121 N. W. 903; 25 L. R. A. (N. S.) 362; 17 Ann. Cas. 240]. The principle which forbids a recovery is that the servant is the best judge of his own lifting capacity. The principle is equally applicable whether the burden is to be lifted and carried on level ground or ground which is uneven. The notes to the case just cited, state that the lifting of heavy objects involves no perils that are not obvious to any person of common understanding. The rule as stated is followed in Creamus v. Railway, 131 Minn. 34 [154 N. W. 616]. See also Haviland v. Railway, 172 Mo. 106 [72 S. W. 515]. The case at bar is not entirely parallel to that of Cincinnati Gas & Electric Co. v. Johnston, 76 Ohio St. 119 [81 N. E. 155], but the differences are not of such a character as to make that case inapplicable as an authority. We have no hesitancy in reaching the conclusion that no Lucas County Appeals. such negligence is averred or stated as creates a cause of action against the defendants. 66 The allegations of the amended petition state that the defendants were at the time hereinafter stated and now are engaged in interstate commerce," and that the plaintiff was a section hand "whose work it was to assist in keeping the tracks of said railroad companies in repair for both local and interstate business and traffic." The apparent purpose of inserting these allegations in the amended petition was to make a case which would fall within the provisions of the federal employers' liability act. We do not find it necessary to determine whether these allegations are or are not sufficient to bring the case within the terms of that act. To bring a case within that act it is not only necessary that it should appear that the defendant company was engaged at the time in interstate commerce, but that the employe himself was at such time so engaged. The rule is stated in New York Central & H. R. Ry. v. Carr, 238 U. S. 260 [35 S. Ct. 780], and Shanks v. Railway, 239 U. S. 556. See also: Pedersen v. Railway, 229 U. S. 146 [33 S. Ct. 648]; St. Louis S. F. & I. Ry. v. Seale, 229 U. S. 156 [33 S. Ct. 651]; Chicago, B. & Q. Ry. v. Harrington, 241 U. S. 177; Louisville & N. Ry. v. Parker, 242 UJ. S. 13. By the terms of the federal employers' liability act the defense that the employe assumed the risks usually incident to the employment still remains available to the employer, and, of course, it would follow that, if the plaintiff and defendant were engaged in interstate commerce at the time the plaintiff was injured, he assumed the risk of the injury with which he met and would be thereby barred of recovery. Finding no error, the judgment will be affirmed. Railway v. Mayer. CARRIERS. [Lucas (6th) Court of Appeals, July 22, 1916.] Kinkade, Chittenden and Richards, JJ. CLEVELAND, C., C. & ST. L. RY. V. FRED MAYER ET AL. Consignee Compelled to Pay Demurrage on Car Load of Goods Received notwithstanding Delay is Fault of Carrier. When a railroad company notifies a consignee of the arrival of cars containing grain and upon receiving switching instructions immediately gives notice to such consignee of inability to make delivery because of an embargo duly promulgated and notice of which had been given the various railroads, and no further order for the disposition of the grain is given by the consignee and the railroad holds the cars until the embargo is lifted and then delivers them in accordance with the switching instructions, the consignee is liable for demurrage charges. [Syllabus by the court.] ERROR. Doyle, Lewis, Lewis & Emery, for plaintiff in error. CHITTENDEN, J. This action originated in the city and justice court of the City of Toledo and was for the recovery of twenty-one dollars, the amount alleged to be due for demurrage on five cars of grain. In that court judginent was rendered in favor of the plaintiff for the full amount claimed. Upon appeal to the Common Pleas Court a jury was waived and the cause was submitted to the court and a judgment was rendered in favor of the plaintiff for the sum of five dollars. The railroad company now seeks to reverse this judgment. There is no dispute as to the five-dollar demurrage charge upon one of the five cars. The other four cars were consigned to Toledo with instructions to give notice to The J. F. Zahm Company, of which firm the defendants were the constituent members. These cars arrived on July 17th and notice of their arrival was given to The J. F. Zahm Company on July 18th, whereupon that company notified the plaintiff to deliver the Lucas County Appeals. cars to The National Milling Company which was located on the tracks of The Wheeling & Lake Erie Railroad Company. It appears that because of an accumulation of cars upon the tracks of The National Milling Company, The Wheeling & Lake Erie Railroad Company had promulgated an embargo upon grain destined to that company, notice of which embargo had been given to the various railroad companies on July 18th. After receiving the switching instructions from The J. F. Zahm Company the plaintiff notified that company of the embargo and of its inability to deliver cars to The Wheeling & Lake Erie Railroad Company for The National Milling Company, because of the same. No further orders for the disposition of the grain were given the plaintiff and the cars were held until July 25th when the embargo was lifted and delivery was made in accordance with the instructions. The legal question presented is as to whether or not, under such state of facts, the defendant is subject to the demurrage charge. It appears from the evidence that the rule under which the demurrage charges in question accrued was on file with the Interstate Commerce Commission and the Railroad Commission of Ohio, now the Public Utilities Commission, and was as follows: "When cars are held by a road for delivery within a switching district and can not be received by the switching line owing to the disability of the consignee, notice must be promptly given by the switching line to the road holding the cars in order that it may give notice to the consignees." "The agent of the holding road will give prompt notice as per car demurrage rule 2-b-1, and explanations thereto." It is shown by the evidence that the notice required by this rule was given. It is claimed that this rule is to be read in the light of the American Railway Association interpretations. It is claimed by the defendants that the evidence fails to show that these interpretations were on file with the state commission and the interstate commission. We find, however, that under the stipulation with reference to the evidence of R. R. Harris, superintendent of freight transportation, and the letters signed by him in pursuance of such stipulation, it fairly appears that Railway v. Mayer. the interpretations were on file with both commissions. What the effect of the interpretations would be if they were not on file need not be considered in view of our finding from the evidence that they were on file. Having been approved by both commissions and being on file with them, we find that they are to be read with the rules as the law governing the case. The interpretation provides: "It also applies to cars held on a carrier line within a switching district, consigned to a point on the switching line within such district, which can not be received on account of disability of consignee. The carrier line must in all cases give notice in writing to the consignee of all cars so held. Time will be computed in accordance with Rule 3 (b) following." No question is made in the case as to the computation of the time of the demurrage at the rate of one dollar per day for each day after the expiration of the free time allowance. We think that these rules and the interpretations cover this case and that the plaintiff is entitled to recover. The demurrage is not to be looked upon entirely as a penalty but it is rather in the nature of a rental for the use of cars for storage during the time that the consignee is unable to care for their contents. This is not only a just provision but it has a tendency to make consignees diligent in unloading and releasing cars for use. As was said in the case of The B. & O. R. R. Co. v. Luella Coal & Coke Co. 74 W. Va. 289 [81 S. E. 1044]: "The law imposes upon railroad companies the duty of supplying the shipping public with prompt and proper service. They are bound to furnish cars and if the owner of goods shipped does not perform his duty in unloading within a reasonable time the public, as well as the carrier, may be greatly inconvenienced." The extent to which the Interstate Commerce Commission and the courts as well have upheld the demurrage charge is illustrated by the case of Swift & Co. v. The Hocking Valley Railway Co. 93 Ohio St. 104, and the cases cited in the opinion in that case. A case very much in point is that of New Jersey Zinc Co. v. Central Railroad Company of New Jersey, 36 Inter |