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CHICAGO, B. & Q.R. CO. v. EDWARD HINES LUMBER CO.

December 28, 1970

CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, A CORPORATION, PLAINTIFF,
v.
EDWARD HINES LUMBER COMPANY, A CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Perry, District Judge.

FINDINGS OF FACT AND CONCLUSIONS OF LAW AND JUDGMENT ORDER

FINDINGS OF FACT

1. This cause is submitted upon a Stipulation of facts and cross motions for summary judgment.

2. Plaintiff is a common carrier by railroad subject to the provisions of the Interstate Commerce Act, and is an Illinois corporation with principal offices in Chicago, Illinois.

3. Defendant is a Delaware corporation operating a lumberyard in Chicago, Illinois, which is served by plaintiff's track and railroad.

4. Demurrage rules and charges governing railcars placed by plaintiff for unloading at defendant's lumberyard are contained in Section 1 of Tariff 4-H. The tariff imposes the duty to unload and return a car within two days. When the two day "free time" expires demurrage is imposed at the rate of $7.50 per day for a prescribed number of days and thereafter at a rate of $15.00 per day until the car is returned to the railroad. A provision in the tariff allows for averaging demurrage charges against demurrage credits, and defendant was under this average agreement.

5. On January 26, 1967, defendant had a total of thirteen railcars on its delivery tracks at its Chicago lumberyard ready for unloading.

6. On January 26, 1967, a snowstorm of sudden and unprecedented severity hit Chicago. Official United States Weather Bureau reports show that the 23.0 inch snowfall of January 26, 1967, established a new record, eclipsing the old record of 19.2 inches for a single storm. Also 19.8 inches fell within the 24 hour period compared with the old record of 14.0 inches. High winds resulted in 4 to 6 foot drifts.

7. By January 30, 1967, defendant had cleared the snow from its yard and the delivery tracks within its yard and was ready and willing to accept loaded railcars and return empty railcars to plaintiff.

8. On February 10, 1967, plaintiff finally cleared its tracks leading to defendant's yard and was capable of delivering loaded cars to defendant.

9. During the period from January 26, 1967 until February 10, 1967, when plaintiff was able to resume switching, a total of 34 loaded railcars had accumulated on the plaintiff's railroad at Chicago for delivery to defendant. Subsequent to February 10, 1967, additional cars continued to arrive and defendant handled these cars for unloading as they arrived and concurrently handled the 34 cars which had accumulated. On May 17, 1967, the final car of the 34 was handled and returned empty to the plaintiff.

CONCLUSIONS OF LAW

1. This Court has jurisdiction over this case pursuant to 28 U.S.C. ยง 1337 and ...


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