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ing the park proper, and embraced a total sume that the same would be more confrontage along Kingshighway of about 1470 veniently served by the sewer in question feet, and that none of the property included within Tower Grove park and the strip of than any other, did not justify *the court in 200 feet in width, reserved for a residence concluding that the municipal assembly, in property, was included within the taxing dis- omitting said lands from the sewer district trict for such sewer construction. The court in question, was actuated by motives of also finds that with the exception of an area fraud, or oppression; or that the prima facie composing some 300 feet, each way, located at liability of defendants established by the cer the southwestern corner of the Park, the west- tified special tax-bill is thereby rebutted and ern part of the park for a distance of some 600 feet east of Kingshighway is of an elevation higher than Kingshighway between Arsenal street and Magnolia avenue, and the natural drainage thereof is in the main westwardly towards Kingshighway and that before the building of the sewer in question surface water and hydrants drained from said part of the park through drains and gutters under said street and sidewalk to a point west of Kingshighway. That whatever drains for surface and hydrant water existed in said
western and north western portion of the park led into that section of the sewer in question, situated in Kingshighway adjoining the park; but the court finds that it is unable to determine from the evidence as to when such connection with said sewer was
accomplished, or by whom. The court also finds that at the time the work in question was performed it was provided by the revised ordinances of the city of St. Louis that water draining from roofs of houses should not flow over sidewalks, but should be conducted through pipes to a sewer if available, and if not then through pipes below the sidewalk, and into the open gutter of the street. The court does not find from the evidence that it was not possible or feasible to drain the surface water falling upon or collected from that portion of Tower Grove Park, and the reserved strip of 200 feet, which is higher than and inclined towards Kingshighway, from the surface of said land in any other manner than through or by the district sewer constructed in Kingshighway, and that sewage from houses upon said reserved strip, if any there ever be, cannot be disposed of by means other than said sewer.
On the facts and conclusions of law the judgment was affirmed by the Supreme Court of Missouri.
The establishment of sewer districts was committed to local authorities by the charter of the city of St. Louis which had the force and effect of a statute of the State. That charter provided that within the limits of the district prescribed by ordinance recommended by the board of public improvements, the municipal assembly might establish sewer districts, and such sewers may be connected with a sewer of any class or with a natural course of drainage. See section 21, Woerner's Revised Code of St. Louis 1907, p. 410.
that a part of Tower Grove Park might have  The mere fact that the court found the Missouri courts, under all the circumbeen drained into the sewer, it was held by stances, did not justify judicial interference with the exercise of the discretion vested in the municipal authorities. The court commented on the fact that it was not shown ter was conducted away from the park by that any considerable amount of surface wa
Much less do such findings afford reason for this court in the exercise of
its revisory power under the federal Consti-
court only interferes with such assessments
found to be arbitrary, or wholly unequal in
when the action of the state authorities is
operation and effect. *We need but refer to some of the cases in which this principle has been declared. Embree v. Kansas City Road District, 240 U. S. 242, 36 Sup. Ct. 317, 60 L. Ed. 624; Withnell v. Ruecking Construction Co., 249 U. S. 63, 39 Sup. Ct. 200, 63 L. Ed. 479; Hancock v. Muskogee, 250 U. S. 454, 39 Sup. Ct. 528, 63 L. Ed. 1081; Branson v. Bush, 251 U. S. 182, 40 Sup. Ct. 113, 64 L. Ed. decided December 22, 1919.
As conclusions of law the court finds that it was within the powers of the municipal assembly, in the passage of the ordinances establishing the sewer district wherein the work sued for was performed, to embrace and designate therein only such real estate as, in their judgment, should be benefited thereby; that the discretion vested in the municipal legislature was not subject to review by this court, unless the powers of the  We find no merit in the contention that legislature were affirmatively shown to have a federal constitutional right was violated been exercised fraudulently, oppressively or because of the refusal to transfer the cause arbitrarily. And the court found that the from the division of the Supreme Court of mere omission of the lands from said dis- Missouri, which heard it, to the court en trict which might, at one time, be reason-banc. See Moore v. Missouri, 159 U. S. 673, ably included in the sewer district in ques- 679, 16 Sup. Ct. 179, 40 L. Ed. 301. tion, or as to which it is reasonable to as- Affirmed.
(252 U. S. 18)
CHICAGO, R. I. & P. RY. CO. et al. v. WARD. (Submitted Jan. 28, 1920. Decided March 1,
1920.) No. 198.
1. MASTER AND SERVANT 204(1)-UNDER FEDERAL EMPLOYERS' LIABILITY ACT, RISK OF MASTER'S NEGLIGENCE MAY BE ASSUMED. Under the federal Employers' Liability Act, it is not true, without qualification, that a servant does not assume a risk created by the master's negligence.
2. MASTER AND SERVANT
204(1)—ASSUMPTION OF RISK DEFENSE TO ACTION NOT BASED ON FEDERAL EMPLOYERS' LIABILITY ACT.
In an action under the federal Employers' Liability Act (Comp. St. §§ 8657-8665) for an injury not caused by the violation of some statute enacted to promote the safety of employés, assumption of risk is a defense.
3. MASTER AND SERVANT 204(3)-ASSUMP-
As to assumption of risk, the federal Employers' Liability Act (Comp. St. §§ 86578665) places a coemploye's negligence, when it is the ground of an action, in the same relation as that of the employer.
4. MASTER AND SERVANT
MAN ENTITLED TO ASSUME CARS WILL BE
and instruction that it would prevent a recovery was too favorable to defendants, and not prejudicial to them.
On Writ of Certiorari to the Supreme Court of the State of Oklahoma.
Action by Fred Ward against the Chicago, Rock Island & Pacific Railway Company and another. A judgment for plaintiff was affirmed by the Supreme Court of Oklahoma (173 Pac. 212), and defendants bring certiorari. Affirmed.
*Messrs. R. J. Roberts, of El Reno, Okl., W. H. Moore, of McAlester, Okl., Thomas P. Littlepage and Sidney F. Taliaferro, both of Washington, D. C., and W. F. Dickinson, of Chicago, Ill., for petitioners.
Mr. W. S. Pendleton, of Shawnee, Okl., for respondent.
Mr. Justice DAY delivered the opinion of the Court.
Suit was brought in the superior court, Pottawatomie county, Oklahoma, against the Chicago, Rock Island & Pacific Railway Company and A. J. Carney to recover damages for injuries alleged to have been received by 213(4)-SWITCH-Ward while he was employed as a switchman of the railway company in its yards at Shawnee. He recovered a judgment which was affirmed by the Supreme Court of Oklahoma, 173 Pac. 212. The ground upon which recovery was sought against the railway company and Carney, who was an engine foreman, was that Ward, while engaged in his duty as a switchman, was suddenly thrown from the top of a box car upon which he was about to apply a brake. The petition alleged, and the testimony tended to show,
In the absence of notice to the contrary, a switchman on a cut of cars to be cut off from the engine had a right to act on the belief that the usual method would be followed and the cars cut off at the proper time, so that he might safely proceed to perform his duty of setting the brake to check the cars.
5. MASTER AND SERVANT 213(4)—SWITCH-
INJURY FROM NEGLIGENT MANNER OF CUT-
A switchman, whose duty it was to set the brake on a cut of cars after it had been cut off from the engine, and who was injured by the sudden checking of the cars, due to the engine foreman's failure to make the disconnection when the speed of the engine was reduced, did not assume the risk, as the injury did not result from an obvious condition of danger, but from the negligent operation of the particular cut of cars.
that Ward was engaged as a switch*man on a cut of cars which it was the duty of the engine foreman to cut loose from the engine pushing the cars in order that Ward might gradually stop the cars by applying the brake. It appears that at the time of the injury to Ward, the cut of cars had been pushed up an incline by the engine, over an elevation, and as the cars ran down the track the effect was to cause the slack to run out between them permitting them to pull apart sufficiently to be uncoupled, at which time it was the duty of the engine foreman to uncouple the cars. The testimony tended to support the allegations of the petition as to the negligent manner in which this operation was performed at the time of the injury, showing the failure of the engine foreman to 7. APPEAL AND ERROR 1033(5)-INSTRUC- properly cut off the cars at the time he di
6. APPEAL AND ERROR 1064(1)—INSTRUCTION HELD NOT PREJUDICIAL, WHERE FACTS
DID NOT SHOW ASSUMPTION OF RISK.
Where, under the facts shown, a servant suing for an injury did not assume the risk, an
inaccurate instruction that a servant did not assume the risk of the master's negligence was not prejudicial.
TION THAT CONTRIBUTORY NEGLIGENCE
rected the engineer to retard the speed of the engine, thereby causing them to slow As, under the federal Employers' Liability down in such manner that when the check Act (Comp. St. §§ 8657-8665), contributory neg- reached the car upon which Ward was about ligence only goes in mitigation of damages, to set the brake, he was suddenly thrown
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
assume that the employer or his agents have exercised proper care with respect to his safety until notified to the contrary, unless the want of care and the danger arising from it are so obvious that an ordinarily careful person, under the circumstances, would observe and appreciate them."
The federal Employers' Liability Act places a coemployé's negligence, when it is the
from the top of the car with the resulting that may arise from the negligence of the eminjuries for which he brought this action. ployer or of those for whose conduct the emThe railway company and Carney took is-ployer is responsible, but that the employé may sue upon the allegations of the petition, and set up contributory negligence and assumption of risk as defenses. The trial court left the question of negligence on the part of the company and the engine foreman to the jury, and also instructed it as to assumption of risk by an employé of the ordinary hazards of the work in which he was engaged, and further charged the jury as follows: "You are further instructed that while a serv-ground of the action, in the same relation as ant does not assume the extraordinary and unusual risks of the employment yet on accepting employment he does assume all the ordinary and usual risks and perils incident thereto, whether it be dangerous or otherwise, and also all risks which he knows or should, in the exercise of reasonable care, know to exist. He does not, however, assume such risks as are created by the master's negligence nor such as are la- [4-6] Applying the principles settled by tent, or are only discoverable at *the time of the these decisions to the facts of this case, the injury. The doctrine of an assumption of risk testimony shows that Ward had neither is wholly dependent upon the servant's knowl- warning nor opportunity to judge of the danedge, actual or constructive, of the dangers in-ger to which he was exposed by the failure cident to his employment. Where he knew, or in the exercise of reasonable and ordinary care, should know the risk to which he is exposed, he will, as a rule, be held to have assumed them; but where he either does not know, or knowing, does not appreciate such risk, and his ignorance or nonappreciation is not due to negligence or want of care on his part, there is no assumption of risk on the part of the servant preventing a recovery for injuries."
[1, 2] Treating the case, as the court be low did, as one in which the injury occurred while the petitioners and respondent were engaged in interstate commerce, this charge as to the assumption of risk was not accurate, in stating without qualification that the servant did not assume the risk created by the master's negligence. We have had occasion to deal with the matter of assumption of risk in cases where the defense is applicable under the federal Employers' Liability Act (Comp. St. §§ 8657-8665), being those in which the injury was caused otherwise than by the violation of some statute enacted to promote the safety of employés. As this case was not one of the latter class, assumption of risk was a defense to which
the defendants below were entitled. Sea
board Air Line R. R. Co. v. Horton, 233 U.
 As to the nature of the risk assumed by an employé in actions brought under the Employers' Liability Act, we took occasion to say in Chesapeake & Ohio Railway Co. v. De Atley, 241 U. S. 310, 315, 36 Sup. Ct. 564, 566 (60 L. Ed. 1016):
"According to our decisions, the settled rule is, not that it is the duty of an employé to exercise care to discover extraordinary dangers
that of the employer upon the matter of assumption of risk. 241 U. S. 313, 36 Sup. Ct. 564, 60 L. Ed. 1016. See also Chesapeake & Ohio R. Co. v. Proffitt, 241 U. S. 462, 468, 36 Sup. Ct. 620, 60 L. Ed. 1102; Erie Railway Co. v. Purucker, 244 U. S. 320, 37 Sup. Ct. 629, 61 L. Ed. 1166.
of the engine foreman to cut off the cars. In the absence of notice to the contrary, and the record shows none, Ward had the right to act upon the belief that the usual method would be followed and the cars cut off at the proper time by the engine foreman so that he might safely proceed to perform his duty as a switchman by setting the brake to check the cars which should have been detached. For the lack of proper care, on the part of the representative of the railway company while Ward was in the performance of his duty, he was suddenly precipitated from the front end of the car by the abrupt checking resulting from the failure to make the disconnection. This situation did not make the doctrine of assumed risk a defense to an action for damages because of the negligent manner of operation which resulted in Ward's injury, and the part of the charge complained of though inaccurate could have worked no harm to the petitioners. It was a sudden emergency, brought about by the negligent operation of that particular cut of cars, and not a condition of danger, resulting from the master's or his representatives' negligence, so obvious that an ordinarily
prudent person in the situation in which Ward was placed, had opportunity to know and appreciate it, and thereby assume the
 *The trial court also charged that contributory negligence by Ward would prevent a recovery. This charge was more favorable to the petitioners than they were entitled to, as under the federal Employers' Liability Act contributory negligence is not a defense, and only goes in mitigation of damages. The giving of this charge could not have been prejudicial error requiring a reversal of the judgment.
CONGRESS NOT RESTRICTED BY CONSTITUTIONAL LIMITATIONS IN LEGISLATING FOR TERRITORY NOT INCORPORATED INTO THE UNITED STATES.
Another assignment of error, dealt with | 5. TERRITORIES 11 by the Supreme Court of Oklahoma, that a jury of less than 12 returned the verdict, conforming to the state practice, does not seem to be pressed here. In any event it is disposed of by St. Louis & San Francisco R. R. Co. v. Brown, 241 U. S. 223, 36 Sup. Ct. 602,
60 L. Ed. 966.
We find no error in the judgment of the Supreme Court of Oklahoma and the same is Affirmed.
(251 U. S. 401)
The constitutional limitations of power on the authority of Congress when legislating for the United States are not applicable and con
trolling on Congress when it comes to exert legislative powers over territory not forming part of United States, because not incorporated therein.
Proceeding before the Board of Public
BOARD OF PUBLIC UTILITY COM'RS v. Utility Commissioners of the Philippine
YNCHAUSTI & CO. et al.
(Argued Jan. 27, 1920. Decided March 1,
1920.) No. 190.
1. CONSTITUTIONAL LAW 297 EMINENT
The guaranty by the Philippine Bill of Rights of due process, or its prohibition against the taking of private property for public use without compensation, is not violated by requiring vessels engaging in the coastwise trade to carry the mails free if the Philippine government possessed the power to so limit the right to engage in the coastwise trade.
2. POST OFFICE 22 ACCEPTANCE OF LICENSE NOT VOLUNTARY ASSUMPTION OF OBLIGATION TO CARRY MAILS FREE.
Assuming that, under the Philippine Bill of Rights, the government could not require the free carriage of mail as a condition of engaging in the coastwise trade, shipowners did not, by accepting a license on such condition, voluntarily assume the obligation of free carriage.
3. TERRITORIES 15-PHILIPPINE BILL
Islands against Yuchausti & Co. and others.
Messrs. Chester J. Gerkin and Edward S. Bailey, both of Washington, D. C., for petitioner.
Messrs. Alexander Britton and Evans Browne, both of Washington, D. C., for respondents.
*Mr. Chief Justice WHITE delivered the opinion of the Court.
Was error committed by the court below in deciding that the Philippine law which imposed upon vessels engaged in the coastwise trade, for the privilege of so engaging, the duty to carry the mails free to and from their ports of touch, was void for repugnancy to the Philippine Bill of Rights is the question which comes before us for decision as the result of the allowance of a writ of certiorari.
The issue will be clarified by a brief reference to the antecedents of the controversy. Under the Spanish law as enforced in the Philippine Islands before the American dom
RIGHTS TO BE CONSTRUED AS IN THE UNITED ination the duty of free carriage as stated
STATES, BUT APPLICATION
POWERS CONFERRED ON GOVERNMENT.
The provisions of the Bill of Rights of the Philippine Islands are to have the settled construction they have received in the United States, but their application to governmental powers must depend on the nature and character of the powers conferred by Congress on the government of the Islands.
4. TERRITORIES 17- PHILIPPINE GOVERN-
The Philippine government has power to require the free carriage of the mail as a condition of engaging in the coastwise trade in view of the power exercised over preceding forms of government and the provisions of Act April 15, 1904, § 3, authorizing the Philippine government to adopt regulations governing transportation between places in the Islands.
existed. Upon the cession of the Islands to the United States and the establishment there
of a military government the existing condition of the subject was continued in force. It thus continued until the government passed into the hands of the Philippine Commission and was by that body specifically recognized and its further enforcement directed. Thus it prevailed without interruption until 1902 when the first act of Congress providing a general system of civil government for the Islands was passed, and it further remained operative until 1904 when Congress passed the act of that year specifically dealing with the authority of the Philippine government to provide for the coastwise trade, as follows (33 Stat. 181):
"Until Congress shall have authorized the registry as vessels of the United States of vessels owned in the Philippine Archipelago the government of the Philippine Islands is hereby
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
carry the mails free, and, if it did, to enforce it without regard to the defense as to the repugnancy of the statute to the Bill of Rights, since that question was proper only to be disposed of by judicial action.
The Supreme Court, to which the controversy was taken, not differing as to the existence of the statutory duty, reversed the order on the ground that such duty could not be exacted consistently with the clauses of the Bill of Rights relied upon. No opinion stating the reasons for this conclusion was expressed, but a member of the court dissented and stated his reasons in an elaborate opinion.
gation to carry the mails free which arose from engaging in the coastwise trade, it may be taken for granted, remained in force until 1916, since the obligation was recognized as being yet in existence and the duty to enforce it for the future was directed by article 310 of the Administrative Code of that year, in which Code were also stated the existing provisions as to the registry, [1, 2] It is impossible to conceive how either licensing, etc., of Philippine vessels. That | the guaranty by the Bill of Rights of due prothe requirement continued operative there- cess or its prohibition against the taking of after results from the further fact that it private property for public use without comwas re-expressed in section 658 of the Ad-pensation can have the slightest application ministrative Code of 1917, which Code was to the case if the Philippine government posadopted to meet the exigencies created by sessed the plenary power, under the sanction the later Organic Act of the Philippine Is- of Congress, to limit the right to engage in lands enacted by Congress in August, 1916 the coastwise trade to those who agree to (39 Stat. 545 [Comp. St. 1918, Comp. St. carry the mails free. It must follow that Ann. Supp. 1919, § 3804a et seq.]). the existence of such power is the real quesWe have not stopped to refer to the Span- tion which is required to be decided. In sayish law, to the military orders to the re-ing this we put out of view as obviously ports of civilian officials, and to the action erroneous the contention that, even though of the Philippine Commission on the sub- the Bill of Rights applied and limited the ject, as above stated, because the references authority of the government so as to prevent to them were made below in marginal note the exaction by law of the free carriage of A, which Mr. Justice Carson made a part the mails, that result is not applicable here of his dissenting opinion (P. I. ). because by accepting a license the shipowners It is undoubted that during all this period voluntarily assumed the obligation of free vessels were permitted to engage in the coast- carriage. Southern Pacific Co. v. Denton, wise trade only upon the issuance to and the 146 U. S. 202, 207, 13 (Sup. Ct. 44, 36 L. acceptance by them of licenses the enjoy- Ed. 942; Western Union Tel. Co. v. Kansas, ment of which depended upon the perform-216 U. S. 1, 27-30, 30 Sup. Ct. 190, 54 L. Ed. ance of the legal duty of the free carriage
of the mails.
355; Pullman Co. *v. Kansas, 216 U. S. 56, Wells, Fargo & Co., 223 U. S. 298, 300, 301, 70, 30 Sup. Ct. 232, 54 L. Ed. 378; Meyer v. 32 Sup. Ct. 218, 56 L. Ed. 445; Kansas City Ry. v. Kansas, 240 U. S. 227, 233-234, 36 Sup. Ct. 261, 60 L. Ed. 617; Western Union Tel. Co. v. Foster, 247 U. S. 105, 114, 38 Sup. Ct. 438, 62 L. Ed. 1006, 1 A. L. R. 1278.
The respondents were in 1916 the owners of steam vessels of Philippine registry licensed to engage in the coastwise trade upon the condition stated, and the controversy before us arose in consequence of a notice given by them to the Philippine Director of Posts that after a date designated they would no  To what extent the Bill of Rights longer comply with the duty to carry the mails free. That official sought its enforce-limits the authority of the government of the ment at the hands of the Board of Public Philippine Islands over the subject of the Utility Commissioners. Before that Board the respondents, the licensees, relied upon
the assertion that the section of the Admin
istrative Code imposing the duty of free mail carriage was in conflict with the provisions
free carriage of the mails is, then, the deterin providing a Bill of Rights for those Isminative factor. Beyond doubt Congress, lands, intended its provisions to have there the settled construction they have received in the United States. But it must be and is of the Philippine Bill of Rights, *guaranteeing indisputable that, when the provisions of due process and prohibiting the taking of such Bill come to be applied to governmental private property for public use without just powers in the Philippine Islands, the result compensation. The Board overruled the de- of their application must depend upon the fense and awarded an order directing com- nature and character of the powers conferred pliance with the law and therefore prohibited by Congress upon the government of the Isthe carrying out of the intention to discon- lands. To illustrate, where a particular tinue. In reaching this conclusion the Board activity in the Philippine Islands is, as the held that its sole duty was to ascertain result of power conferred by Congress, under whether the law imposed the obligation to governmental control to such an extent that