Opinion Per Curiam.

case cited was not applicable. The answer of the witness was not merely the expression of an opinion or an impression gained from a conversation, as in the Crowell case, but was a description of the sound which could be described probably in no other manner than the answer employs, and it was not error for the trial court to refuse to rule out the answer.

For the reasons stated the judgment of the court of appeals is reversed, and that of the common pleas is affirmed.

Judgment reversed.

NICHOLS, C: J., WANAMAKER, NEWMAN, JONES, MATTHIAS and JOHNSON, JJ., concur.

Syllabus.

THE KANAWHA & MICHIGAN RAILWAY Co. v.

THE PUBLIC UTILITIES COMMISSION OF

OHIO.

-

Railroads - Trackage agreement Connection of disconnected portions of railroad-By lease of uniting road-Grantee no right to take local business, when Limitation of duties to public-Grantee cannot be required to furnish cars, whenProhibited contracts - Section 8983, General Code, inapplicable, when - Public utilities commission.

1. Where, under a trackage agreement between two railroad companies the object of which as expressed in the agreement is to enable one of the companies to connect disconnected portions of its railroad, to form a continuous line and to operate trains to and from points on its own road, the other company grants the right to use in connection with it a part of the railroad owned and operated by it, "including the main tracks, sidings, passenger and freight stations, Y's, inclines and other appurtenances and terminal and station facilities connected therewith," and in the agreement it is provided that the grantee company shall have no right to take any business from or to any station upon the railroad of the owning company for any point reached by that company or its connections, the grantee company has no right to the use of a switch track built by the owning company on its right of way and connecting its main track with the mine tracks of a coal company, which switch track was not built for the general use of the railroad companies but for the convenience of the coal company.

2. The rights acquired by the grantee company under such an agreement are contract rights subject to the limitations and restrictions contained in the agreement and the duties of such company to the public are not the general duties of a common carrier operating upon its own road.

3. Such railroad company cannot be required to furnish cars to a coal company whose mine is located on the part of the railroad over which the railroad company is operating under the trackage agreement, if in the rendition of such service there would be a violation of a restriction contained in the agreement.

4. Section 8983, General Code, does not apply where one railroad company, under an agreement the object of which is to enable

Statement of the Case.

it to connect disconnected portions of its railroad and to form a continuous line to and from points on its railroad, is operating on the railroad of another railroad company and by the terms of such agreement the owning company does not attempt to narrow its own obligations to the public or relieve itself of any duties imposed upon it by law.

The Hocking Domestic Coal Company is a corporation engaged in mining, producing and shipping coal. It filed a complaint with the Public Utilities Commission of Ohio, in which it alleged that its Mine No. 5 was located on the lines of The Kanawha & Michigan Railway Company, that that Railway Company was discriminating against it and in favor of other shippers of coal whose mines were similarly located, and that said Railway Company refused to furnish it with cars for shipment of coal from its mine to Ohio points, while other shippers of coal in the near vicinity whose mines were similarly located were furnished their full desired quota of cars. Complainant charged further discrimination on the part of the Railway Company in favor of other shippers of coal whose mines were similarly located in that shipping facilities by means of a switch and switching connection were furnished them while the Railway Company refused to furnish complainant with a switch and switch connection, although a request and offer to comply with all the requirements required of coal shippers requesting such shipping facilities had

Statement of the Case.

been made. The prayer of the complaint was that after due hearing and investigation The Kanawha & Michigan Railway Company be ordered to cease and desist from the violations therein complained of, and for such other and further order as the Commission might deem necessary.

The Kanawha & Michigan Railway Company answered the complaint and admitted that it did not furnish cars for the use of the complainant, but as an excuse therefor averred that complainant's Mine No. 5 was located along the line of The Hocking Valley Railway Company, over which it, The Kanawha & Michigan Railway Company, had only the right to operate its trains and to take business from points designated in a contract dated July 24, 1886, and supplemented January 3, 1900, which said contract and supplement did not give it the right to accept business from complainant's Mine No. 5. It denied that it furnished cars for shippers of coal whose mines were located as was complainant's Mine No. 5. It admitted that application had been made by complainant for the connection of the switching track leading south from Hobson yards with the private tracks of complainant, and it averred that said application was denied because it, The Kanawha & Michigan Railway Company, had no right, under the terms of the contracts before referred to, to make such connection. It denied that it furnished shipping facilities to any other mines located as was complainant's Mine No. 5, along the line of The Hocking Valley Railway Company, and reached and served by private

Statement of the Case.

switches from the line of The Hocking Valley Railway Company.

The matter was submitted to the Commission on the pleadings and the evidence, and on May 10, 1916, there was a finding that complainant was entitled to and should receive from The Kanawha & Michigan Railway Company cars for the loading and transporting of its product and that the failure and refusal of the Railway Company to furnish such service was an unjust discrimination by it against complainant and in favor of other shippers located upon its line. The Commission ordered The Kanawha & Michigan Railway Company to cease and desist from this discrimination and to furnish complainant cars for the loading and transporting of complainant's product, upon such terms and under such regulations as were adopted by the Railway Company for the furnishing of cars to other shippers of like product upon its line of railroad. An application for a rehearing was allowed and, after a rehearing, on November 16, 1916, the order of May 10, 1916, was ratified and affirmed, the order to become effective after December 16, 1916. An application for a rehearing was filed December 4, 1916, and on December 6, 1916, the same was denied. A petition in error was thereupon filed in this court in which plaintiff in error asks that the order of the Commission be reversed. There are also filed in this court a transcript of the journal entries, original papers, and a certified transcript of all evidence adduced upon the hearing before the Commission.