hear and determine all such complaints and objections, and may recommend to the board of public works any modification of their apportion

*9

ments; the board of public *works may thereupon make such modifications and changes as to them may seem equitable and just, and may confirm the first apportionment and shall notify the council of their final decision; and the council shall thereupon, by ordinance, assess the costs of said improvements against all the real estate in said district and against such persons, respectively, in the proportions above mentioned."

Section 328 of the charter provides:

"When the cost of any such park site or parkway is definitely determined, the park commission shall prepare, certify and file with the clerk a statement showing the cost thereof as required in section 298 hereof; the clerk shall

thereupon give the notice required by section 299 hereof; and thereupon the same proceedings required in section 300 hereof shall be had, except that the proceedings therein provided to be observed by the board shall be observed by the park commission; and the council shall thereupon by ordinance assess the cost against the other real estate as aforesaid, in the district, in accordance with said apportionments."

cept that the board of supervisors, sitting as a board of equalization, is substituted for the city council.

[1] This court when dealing with the constitutionality of state statutes, challenged under the Fourteenth Amendment, accepts the meaning thereof as construed by the highest court of the state. St. Louis & Kan419, 427, 36 Sup. Ct. 647, 60 L. Ed. 1072. sas City Land Co. v. Kansas City, 241 U. S.

[2] In Londoner v. Denver this court accepted, as it was bound to do, the construction of the charter made by the state court, and upon that construction determined its constitutional validity. The city charter was construed in the Supreme Court in 33 Colo. 104, 80 Pac. 117. In the opinion in that case, after discussing the steps required in making improvements of the character involved here, the court, in dealing with section 31, said (33 Colo. 117, 80 Pac. 121):

"Notwithstanding the apparently mandatory words used in section 31, supra, we do not think that thereby the legislative power and discretion of the city council is taken away and vested in the board of public works, but that the former, in the exercise of its functions, is empowered to pass an assessing ordinance

*11

The federal question, brought before us by the writ of error, concerns the constitution-charging property with the cost of an improvement, which, according to its judgment, would ality of section 300, above set forth-the be just and equitable." contention being that it does not give interested property owners the opportunity to be heard where the property is to be specially assessed for making improvements of the character in question, as the hearing provided is before a board which has no power to decide any complaint which the property | 379, 28 Sup. Ct. 711, 52 L. Ed. 1103):

*Adopting this construction of the section, and considering the objection urged that it would not afford due process of law, this court by Mr. Justice Moody said (210 U. S.

owner may have or make with respect to the
validity or falseness of such assessment, or
to correct any error in such assessment, but
only has power to recommend to the power or
authority, originally making the assessment,
any modifications of portions of such assess-
ment; that is, that the board of supervisors
has only the power to recommend to the
board of park commissioners the apportion-v.
ment to be made in the assessment. It is the
contention of the plaintiffs in error that the

*10

"The ninth assignment questions the constitutionality of that part of the law which authorizes the assessment of benefits. It seems desirable, for the proper disposition of this and the next assignment, to state the construction which the Supreme Court gave to the charter. This may be found in the judgment under review and two cases decided with it. Denver v. Kennedy, 33 Colo. 80 [80 Pac. 122, 467]; Denver Dumars, 33 Colo. 94 [80 Pac. 114]. From these cases it appears that the lien upon the adjoining land arises out of the assessment; after the cost of the work and the provisional hearing thus afforded does not *give due pro-apportionment is certified to the city council cess of law within the meaning of the Four- the landowners affected are afforded an opporteenth Amendment to the Constitution. The tunity to be heard upon the validity and amount Supreme Court of Colorado, affirming the of the assessment by the council sitting as judgment of the district court, denied this a board of equalization; if any further notice contention, and affirmed the judgment of the than the notice to file complaints and objections district court sustaining the validity of the plied power to give it; the hearing must be is required, the city authorities have the imbefore the assessment is made; this hearing, provided for by section 31, is one where the board of equalization 'shall hear the parties complaining and such testimony as they may offer in support of their complaints and objec tions as would be competent and relevant' (33 Colo. 97 [S0 Pac. 114]); and that the full hearing before the board of equalization excludes the courts from entertaining any objections which are cognizable by this board. The statute itself, therefore, is clear of all constitutional

assessment. 171 Pac. 66.

The Supreme Court of Colorado held that the question had already been disposed of by its own previous decision, affirmed as to the constitutional point by our decision in Londoner v. Denver, 210 U. S. 373, 28 Sup. Ct. 708, 52 L. Ed. 1103, supra. In Londoner v. Denver the section of the charter now involved was before this court, being then section 31 of the charter. Section 300 to all intents is the same in terms as section 31, ex-faults."

(40 Sup.Ct.)

[3] Plaintiffs in error did not avail them-| selves of the privilege of a hearing as provided by this section, but after the assessing ordinance had been passed began this proceeding in the district court to test the constitutionality of the law. As we have said, the question as to what should be a proper construction of the charter provision was not for our decision; that matter was within the

GOLDSMITH et al. v. GEORGE G. PREN- ing. Prendergast Const. Co. v. Goldsmith,

(Argued Jan. 13 and 14, 1920. Decided March the construction of which the assessment was

2. CONSTITUTIONAL LAW 233, 290(1)-As- which it found that there was no evidence

In Error to the Supreme Court of the State the western gate or entrance of the park of Missouri.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 40 SUP.CT.-18

ing the park proper, and embraced a total sume that the same would be more conveniently served by the sewer in question

*17

than any other, did not justify *the court in concluding that the municipal assembly, in omitting said lands from the sewer district in question, was actuated by motives of fraud, or oppression; or that the prima facie liability of defendants established by the certified special tax-bill is thereby rebutted and

frontage along Kingshighway of about 1470 feet, and that none of the property included within Tower Grove park and the strip of 200 feet in width, reserved for a residence property, was included within the taxing district for such sewer construction. The court also finds that with the exception of an area composing some 300 feet, each way, located at the southwestern corner of the Park, the western 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

*16

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.

overturned.

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.

[1] The mere fact that the court found that a part of Tower Grove Park might have been drained into the sewer, it was held by stances, did not justify judicial interference the Missouri courts, under all the circum

with the exercise of the discretion vested in mented on the fact that it was not shown the municipal authorities. The court comter was conducted away from the park by that any considerable amount of surface wathis sewer. Much less do such findings afford reason for this court in the exercise of

its revisory power under the federal Consti

tution to reverse the action of the state

courts, which fully considered the facts, and refused to invalidate the assessment.

[2] As we have frequently declared, this court only interferes with such assessments on the ground of violation of constitutional

rights secured by the Fourteenth Amendment,

when the action of the state authorities is

found to be arbitrary, or wholly unequal in

*18

operation and effect. *We need but refer to some of the cases in which this principle has

As conclusions of law the court finds that it was within the powers of the municipal | been declared. Embree v. Kansas City Road assembly, in the passage of the ordinances District, 240 U. S. 242, 36 Sup. Ct. 317, 60 L. establishing the sewer district wherein the Ed. 624; Withnell v. Ruecking Construction work sued for was performed, to embrace Co., 249 U. S. 63, 39 Sup. Ct. 200, 63 L. Ed. and designate therein only such real estate | 479; Hancock v. Muskogee, 250 U. S. 454, 39 as, in their judgment, should be benefited Sup. Ct. 528, 63 L. Ed. 1081; Branson v. thereby; that the discretion vested in the Bush, 251 U. S. 182, 40 Sup. Ct. 113, 64 L. municipal legislature was not subject to reEd. decided December 22, 1919. view by this court, unless the powers of the legislature were affirmatively shown to have been exercised fraudulently, oppressively or arbitrarily. And the court found that the mere omission of the lands from said district which might, at one time, be reasonably included in the sewer district in question, or as to which it is reasonable to as

[3] We find no merit in the contention that a federal constitutional right was violated because of the refusal to transfer the cause from the division of the Supreme Court of Missouri, which heard it, to the court en banc. See Moore v. Missouri, 159 U. S. 673, 679, 16 Sup. Ct. 179, 40 L. Ed. 301. Affirmed.

(252 U. S. 18)

(40 Sup.Ct.)

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-
TION OF RISK OF COEMPLOYÉ'S NEGLIGENCE
UNDER FEDERAL EMPLOYERS' LIABILITY ACT
DEFINED.

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
OPERATED IN USUAL MANNER.

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.

#19

*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-
MAN HELD NOT TO HAVE ASSUMED RISK OF

INJURY FROM NEGLIGENT MANNER OF CUT-
TING CARS.

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.

*20

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
WOULD PREVENT RECOVERY HELD FAVORABLE
TO DEFENDANT.

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

from the top of the car with the resulting injuries for which he brought this action.

The railway company and Carney took issue 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:

The federal Employers' Liability Act places a coemployé's negligence, when it is the

peake & 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.

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."

"You are further instructed that while a serv-ground of the action, in the same relation as ant does not assume the extraordinary and un- that of the employer upon the matter of asusual risks of the employment yet on accepting sumption of risk. 241 U. S. 313, 36 Sup. employment he does assume all the ordinary Ct. 564, 60 L. Ed. 1016. See also Chesaand 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*21 tent, or are only discoverable at the time of the injury. The doctrine of an assumption of risk is wholly dependent upon the servant's knowl-warning nor opportunity to judge of the dan edge, actual or constructive, of the dangers in-ger to which he was exposed by the failure cident to his employment. Where he knew, or of the engine foreman to cut off the cars. in the exercise of reasonable and ordinary care, In the absence of notice to the contrary, and should know the risk to which he is exposed, he the record shows none, Ward had the right to will, as a rule, be held to have assumed them; 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

risk.

[1, 2] Treating the case, as the court below 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 assump tion 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. Seaboard Air Line R. R. Co. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Jacobs v. Southern Railway Co., 241 U. S. 229, 36 Sup. Ct. 588, 60 L. Ed. 970.

that may arise from the negligence of the em-
ployer or of those for whose conduct the em-
ployer is responsible, but that the employé may
assume that the employer or his agents have
exercised proper care with respect to his safety
#22
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."

[3] 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):

[4-6] Applying the principles settled by these decisions to the facts of this case, the testimony shows that Ward had neither

$23

[7] *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 prej

"According to our decisions, the settled rule is, not that it is the duty of an employé to ex-udicial error requiring a reversal of the ercise care to discover extraordinary dangers judgment.