his allotment of lands and distributive share of all the funds of the tribe, the lands and money to which he would be entitled if living shall descend," etc. Although she had been placed in possession of an allotment, she had not in her lifetime "received" it, in the sense of the Agreement, for this con templated ownership in fee, and she had the ratification of the agreement "before re- | who were living on the first day of April, ceiving his allotment," etc. It is insisted eighteen hundred and ninety-nine, entitled that Agnes Hawes did not fall within either to be enrolled shall be placed upon of these classes, since she died before the the rolls. . and if any such citizen has ratification of the agreement, but after re- died since that time . before receiving ceiving her allotment. It is also insisted that § 7 put in force the Creek law of descent only with respect to the homestead 40 acres; and since the Curtis act had no provision for homesteads, the allotment, when made, was not impressed with homestead characteristics, and no part of the land allotted to heirs was impressed with such characteristics by the Agreement. The re-received only a provisional surface right. sult of this argument, if sound, would be Besides, while § 6 in confirming the allot that all Curtis act allotments (over 10,000 ment brought it under those provisions of in number, and covering more than 1,600,000 the Agreement that contemplated a patent acres; 8th report, p. 32), and all allotments in fee, it was still only a partial dividend made after the ratification of the Original out of the property of the tribe. There reAgreement except homestead allotments un-mained something else contemplated by the der § 7 and a limited class of allotments under § 28, would descend according to the Arkansas laws of descent, while the exceptional allotments, comparatively of little importance, would descend according to the Creek laws. Agreement and not received by Agnes Hawes in her lifetime, namely, her "distributive have the precise situation contemplated by share of all the funds of the tribe." Thus we and money, to which she would have been § 28, which in that case confers the lands to Creek law. This accords with the view entitled if living, upon her heirs according adopted by the Oklahoma supreme court in Barnett v. Way, 29 Okla. 780, 785, 119 Pac. 418. And see Washington v. Miller, 235 U. S. 422, 425, 59 L. ed., 35 Sup. Ct. Rep. 119. Even if this construction accorded with the strict letter of the Agreement, it savors too much of refinement to be accepted as an exposition of the true intent and meaning of an engagement made between the government of the United States and an Indian tribe. Jones v. Meehan, 175 U. S. 1, 10, 44 Were there doubt of the correctness of L. ed. 49, 53, 20 Sup. Ct. Rep. 1; Choate v. this view, and were § 28 as restricted in its Trapp, 224 U. S. 665, 675, 56 L. ed. 941, 945, effect as is contended by plaintiff in error, 32 Sup. Ct. Rep. 565. The adoption of the the same result would follow from a fairly Creek laws of descent was a concession to liberal reading of § 7, such as would have the Indians, who were, of course, more fa- to be adopted in construing an agreement. miliar with their own laws than with chap- with Indians. That section begins by say, ter 49 of Mansfield's Digest, and were no ing that "Lands allotted to citizens heredoubt materially influenced in giving con- under" shall not be encumbered or sold to sent to the treaty by the fact that thereafter secure or satisfy any debt contracted prior their lands would descend just as their per- to the date of the deed to the allottee, and sonal property had descended in former shall not be alienable within five years from times. To confine the operation of the Creek the ratification of the agreement except with laws to the few and exceptional cases, and the approval of the Secretary of the Inleave the Arkansas laws in effect respecting terior. Then follow clauses imposing rethe greater part of the tribal domain, would strictions solely upon the homestead 40 be to keep the word of promise to the ear, acres, and the section ends by declaring that while breaking it to the hope. At the same the homestead shall remain, after the death time, it would be inconsistent with the pur- of the allottee, for the use and support of pose expressed in § 6 to put Curtis act allot- children born to him after the ratification ments on a parity with allotments after- of the Agreement, but in the absence of such wards made. The confusion that would re-issue "he may dispose of his homestead by sult from applying two variant systems of law at one and the same time, with respect to lands lying side by side and otherwise indistinguishable, is, of course, apparent. The suggested construction must be rejected. In our opinion the equitable title to the Agnes Hawes allotment was vested in her heirs according to Creek law by the clear meaning of § 28, which says: "All citizens will, free from limitation herein imposed, and if this be not done, the land shall descend to his heirs, according to the laws of descent and distribution of the Creek Nation, free from such limitation." It is reasonable to suppose that the Indians, when giving approval to this agreement, would understand that the land which was thus to descend free from limitation included as It is undisputed that, according to Creek law, the husband was entitled to take a half interest in his wife's property if she died without will, at least, in case there were no children. And it is now settled that an intermarried noncitizen husband could inherit under the tribal laws the same as if he were a citizen. Reynolds v. Fewell, 236 U. S. 58, 63, 59 L. ed., 35 Sup. Ct. Rep. 230; Shellenbarger v. Fewell, 236 U. S. 68, 59 L. ed., 35 Sup. Ct. Rep. 234. well the land to which the limitation had more v. Brady, 235 U. S. 441, 448, 59 ₺. ed. never applied as that to which it had ap-, 35 Sup. Ct. Rep. 135, is distinguishable, plied, but respecting which it had expired. because there the allotment in question was And they would understand the provisions not selected or made until after the Suppleof § 28 (if limited as is here contended), to mental Agreement went into effect. apply the laws of descent and distribution of the Creek Nation to allotments made under the peculiar circumstances there provided for, in order to bring those allotments into conformity, as to descent and other wise, with allotments of the general class, including allotments made prior to the ratification of the agreement, which by § 6 were "as to appraisement and all things else" to be governed by the provisions of the agree ment. Such was the view expressed by the supreme court of Oklahoma in De Graffenreid v. Iowa Land & T. Co. (1908) 20 Okla. 687, 709-711, 95 Pac. 624. In Bartlett v. Okla Oil Co. 218 Fed. 380, 385, the United States district court for the eastern district of Oklahoma passed upon the question of the descent of a Creek allotment held by a fullblood Indian of that tribe who died November 17, 1907, one day after the admission of Oklahoma as a state. It being in dispute whether the Creek law, the Arkansas law, or the Oklahoma law of descent and distribution applied, the court, in the course of a historical review of the legislation of Congress, said (p. 385) that under the Original Creek Agreement the descent of surplus lands was not especially provided for, and therefore was controlled by the laws of Arkansas, in force in the Indian Territory by virtue of the act of June 7, 1897 [30 Stat. at L. 62, chap. 3], and June 28, 1898 (the Curtis act); but this was clearly obiter. Under either of the views that we have expressed, the Agnes Hawes allotment, if it was uncontested, if it did not include public property, and was not otherwise affected by the Original Creek Agreement, was confirmed by § 6. That it was not among the excepted classes is sufficiently evidenced by the subsequent action of the Dawes Commission in awarding it to the heirs of Agnes. That which had been tentative and provisional then became, by force of the provisions of the Agreement, final and conclusive, The result was to vest a complete equitable title in her "heirs," to be determined according to the Creek laws of descent and distribution; and, upon familiar principles, their interest, being vested, was not devested by the subsequent adoption of the act of May 27, 1902, chap. 888, effective July 1, 1902 (32 Stat. at L. 258; Joint Res. No. 24, 32 Stat. at L. 742), or the Supplemental Creek Agreement (act of June 30, 1902, chap. 1323, § 6, 32 Stat. at L. 501; effective Aug. gust 8, 1902, 32 Stat. at L. 2021), which substituted the Arkansas laws. See Ballin ger v. United States, 216 U. S. 240, 249, 54 L. ed. 464, 468, 30 Sup. Ct. Rep. 338. Size It is perhaps unnecessary to say that the subsequent issue of a patent to the "Heirs of Agnes Hawes," without naming them, conveyed the legal title to those persons upon whom the equitable title was conferred by the Original Agreement. The restrictions upon alienation contained in the Original Agreement did not apply to allotments made on behalf of deceased members of the tribe. Skelton v. Dill, 235 U. S. 206, 210, 59 L. ed., 35 Sup. Ct. Rep. 60. Indeed, all restrictions upon alienation as to allottees not of Indian blood (except minors and except as to homesteads) were removed by the act of April 21, 1904 (33 Stat. at L. 189, 204, chap. 1402). Therefore, the conveyance on June 22, 1904, by Ratus Hawes to defendant in error passed to the latter the undivided half interest in the lands in question. The further point is raised that defendant in error (plaintiff below) was barred from maintaining his present action by a decree dismissing a previous suit, brought by him prior to statehood in the United States court for the western district of the Indian Territory, against Louis and Peggie Woodward, for a partition of the same land. This contention-equivalent to the plea of res judicata-was rejected by the state court upon the ground that the partition suit was brought in equity, and was dismissed because the petition showed that the land was held by the defendants adversely to plaintiff, and because he could not maintain an action for partition in equity without first establishing his title by an action in ejectment. The decision was rested upon the authority of numerous cases cited from the supreme court of Arkansas, the practice of that state having been put in force in the Indian Territory by act of Congress. We concur in the result, and need add nothing to the reasoning of the state court. One or two other questions were argued, but they are not within the assignments of error-indeed, were not raised in the court whose judgment is under review. Judgment affirmed. (238 U. S. 320) TEXAS & PACIFIC RAILWAY COM-1 bananas, and it had at one end an ice bunker PANY, Plff. in Err., V. M. J. MURPHY. with an opening or scuttle in the roof of the car through which the bunker was filled. The opening was surrounded with a casing or coaming, rising somewhat above the surNEGLI face of the roof, and there was a hinged MASTER AND SERVANT (§ 293*)-INJURIES GENCE. nished with a ratchet device for raising it in the course of his duties in order to test the brake and if necessary to set it, so that the refrigerator car could not run down upon the main track. While walking upon the roof of the car and making ready to de ages for personal injuries sustained by a switchman as the result of a fall from the top of a refrigerator car, occasioned by the act of the messenger in charge of the car in leaving the door of the ice bunker wide open, has no valid ground of complaint because the trial court, instead of charging, as requested, that the rules of the carrier governing transportation of perishable freight in refrigerator cars were reason-scend, it being dark, and the signal lantern able and binding upon the parties, and that if the car in question was handled in accordance with those rules, and if the messenger left the door open and this caused the plaintiff to fall, he could not recover, instructed the jury that the carrier could not escape liability because the messenger left the bunker opening uncovered, but that the jury might take into consideration the fact of the messenger's control of the car in determining the question of the carrier's negligence and the plaintiff's contributory negligence, there being nothing to show that the plaintiff had notice of the carrier's rules, or that they entered into the contract of employment. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1148-1156, 1158-1160; Dec. Dig. § 293.*] [No. 791.] Argued April 23, 1915. Decided June 14, I 1915. N ERROR to the United States Circuit Court of Appeals for the Fifth Circuit to review a judgment which affirmed a judgment of the District Court for the Eastern District of Texas in favor of plaintiff in a personal injury action. Affirmed. that he carried furnishing scanty light upon his path, he stepped upon the casing or coaming of the ice bunker, his foot slipped or turned, and he fell to the ground, receiving serious injuries. The hatch cover, it appeared, was on this occasion left wide open, instead of being set at an angle by means of the ratchet, which, according to the evidence, was the proper mode of arranging it when it was desired to ventilate the ice bunker, and would have had the effect of preventing plaintiff from stepping upon the coaming. Plaintiff's contention was that the railway company was negligent in leaving the door of the ice bunker wide open. Defendant insisted that the car was in the charge and control of one Marshall, who was selling bananas from it, and that under the rules prescribed by the company for governing the transportation of bananas Marshall had a right to have the doors of the ice bunker open or closed, as he preferred. The trial court was requested to charge that the rules of the company governing the transportation of bananas in refrigerator cars were reasonable and binding upon the parties, and if the car in question was han The facts are stated in the opinion. error. messenger in charge of the car left the ven Mr. S. P. Jones for defendant in error. tilators open, and this caused the plaintiff to fall, he could not recover. This request Mr. Justice Pitney delivered the opin- was refused, and the court charged, on the ion of the court: contrary, that the railway company could Murphy, while in the employ of the rail-not escape liability for injuring plaintiff by way company as a switchman in its yards at Marshall, Texas, fell from a refrigerator car and received personal injuries, for which he recovered a judgment against the company in the United States district court, which was affirmed by the circuit court of appeals, without opinion. According to plaintiff's theory, supported by evidence sufficient to sustain the verdict, the car was standing upon one of the unloading tracks, but in such a position that it required to be occasionally moved in the course of switching operations. It was partially loaded with reason of Marshall's act in leaving the bunker opening uncovered; that the mere fact that Marshall, or somebody acting for him, left it uncovered, would not be sufficient to defeat a recovery by the plaintiff; but that the jury could take into consideration the fact of Marshall's control of the car in determining whether the defendant company, on the occasion in question, was guilty of negligence directly or proximately contributing to plaintiff's injury, and also in determining whether plaintiff was guilty of contributory negligence in walking along the *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes car in the manner he did at the time of his injury. We think this was sufficiently favorable to defendant. So far as ap. pears, there was nothing to show that plaintiff had notice of the company's rules respecting the care of perishable freight in refrigerator cars, or that they entered into the contract of employment. Assuming he was charged with notice of Marshall's control of the car and knew that this must in terfere to some extent with the railway company's care for plaintiff's safety, this was no more than a circumstance in the case, and could not properly be treated as conclusive ly showing a want of responsibility on the part of defendant. The other contentions of plaintiff in error are sufficiently answered by referring to Texas & P. R. Co. v. Rosborough, 233 U. S. 429, 59 L. ed. —, 35 Sup. Ct. Rep. 117, and cases cited. Judgment affirmed. (239 1. 8. 200) NEW YORK CENTRAL & HUDSON RIV. V. BERNARD J. CARR, • COMMERCE ($ 27°) EMPLOYER'S LIABILITY Messrs. Maurice C. Spratt, Lester F. Gilbert, and Charles C. Paulding for plaintiff in error. Messrs. Hamilton Ward and John Lewis Smith for defendant in error. Mr. Justice Lamar delivered the opinion of the court: Carr was a brakeman on a "pick-up" freight train running from Rochester to Lockport over the lines of the New York Central. On November 18, 1910, some of the cars in this train contained interstate freight. Among those engaged in purely intrastate business were the two cars, at the head of the train and next to the engine, which were to be left at North Tonawanda, New York. On arriving at that point they were uncoupled from the train, pulled by the engine down the track, and then backed into a siding. It was the duty of one brakeman (O'Brien) to uncouple the air hose from the engine, and for the other (Carr) to set the hand brakes in order to prevent the two cars from rolling down upon the main track. O'Brien, having failed to open the gauge to the stopcock, suddenly and negligently "broke" the air hose. The result was that the sudden escape of -WHEN SERVANT ENGAGED IN INTER-air-applied only in cases of emergency STATE COMMERCE." violently turned the wheel handle attached A brakeman on a "pick-up" freight to the brake which Carr at the time was train running between points in the same attempting to set. The wrench threw Carr state, but containing some cars loaded with to the ground, and for the injuries thus interstate freight, who was injured while suffered he brought suit in a state court. attempting, in the course of his employ: If the case was to be governed by the law of ment, to set the brake on an intrastate car which had been cut out of the train and New York he was not entitled to recover, backed into a siding, was employed in inter- since the injury was due to the negligence state commerce, within the meaning of the of O'Brien, a fellow servant. He did reFederal employers' liability act of April 22, cover a verdict under the Fed ral employers' 1908 (35 Stat. at L. 65, chap. 149, Comp, liability act, and, the judgment thereon Stat. 1913, 5 8657), where the setting of having been aflirmed (157 App. Div. 941, 112 such brake was necessary in order that they. Y. Supp. 1111, 158 App. Div. 891, 143 engine to which the car was attached might. when uncoupled, return to the train and proceed on its journey. [Ed. Note. For other cases, see Commerce, Cent. Dig.}%; Dec. Dig. § 27 For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.] [No. 257.] Argued May 4, 1915. I 1915. Decided June 14, ! N. Y. Supp. 1103), the case is here on writ of error to review that ruling. The railroad company insists that when the two cars were cut out of the train and backed into a siding, they lost their interstate character, so that Carr while working thereon was engaged in intrastate commerce and not entitled to recover under the Federal employers' liability act. The scope of that statute is so broad that it covers a vast N ERROR to the Supreme Court, Appel field about which there can be no discussion. late Division, Fourth Department, in the field about which there can be no discussion. State of New York, to review a judgment But owing to the fact that, during the same which affirmed a judgment of the Trial, day, railroad employees often and rapidly Term of the Supreme Court in and for the County of Erie, in that state, in favor of plaintiff in an action under the Federal employers' liability act. Affirmed. pass from one class of employment to another, the courts are constantly called upon to decide those close questions where it is difficult to define the line which divides the See same case below, 157 App. Div. 941, state from the interstate business. The 142 N. Y. Supp. 1111. The facts are stated in the opinion. present case is an instance of that kind; and many arguments have been advanced by the •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes PANY, Plff. in Err., V. (238 U. S. 269) WALTER G. FEREBEE. railway company to support its contention | NORFOLK SOUTHERN RAILROAD COMthat, as these two cars had been cut out of the interstate train and put upon a siding, it could not be said that one working thereon was employed in interstate commerce. But the matter is not to be decided by considering the physical position of the employee at the moment of injury. If he is hurt in the course of his employment while going to a car to perform an interstate duty, or if he is injured while preparing an engine for an interstate trip, he is entitled to the benefits of the Federal act, although the ac 1. A substantive right or defense arising under the Federal employers' liability act of April 22, 1908 (35 Stat. at L. 65, not be lessened or destroyed by a local rule chap. 149, Comp. Stat. 1913, § 8657), canof practice. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 939-949; Dec. Dig. § 359.*] cident occurred prior to the actual coupling COURTS ($ 394*)-ERROR TO STATE Court of the engine to the interstate cars. St. Louis, S. F. & T. R. Co. v. Seale, 229 U. S. 156, 57 L. ed. 1129, 33 Sup. Ct. Rep. 651, Ann. Cas. 1914C, 156; North Carolina R. Co. v. Zachary, 232 U. S. 248, 58 L. ed. 591, 34 Sup. Ct. Rep. 305, Ann. Cas. 1914C, 159. This case is within the principle of those two decisions. The plaintiff was a brakeman on an interstate train. As such, it was a part of his duty to assist in the switching, backing, and uncoupling of the two cars so that they so that they might be left on a siding in order that the interstate train might proceed on its journey. In performing this duty it was necessary to set the brake of the car still attached to the interstate engine, so that, when uncoupled, the latter might return to the interstate train and proceed with it, with Carr and the other interstate employees, on its interstate journey. COURT— PARTIAL NEW TRIAL COMPARATIVE NEGLIGENCE-EMPLOYERS' LIABILITY. 2. The right of the carrier under the Federal employers' liability act of April 22, 1908 (35 Stat. at L. 65, chap. 149, Comp. Stat. 1913, § 8657), to prove contributory negligence in mitigation of damages is not infringed by the action of the highest court of a state in granting a partial new trial, for the assessment of damages only, in an action under that statute, where the jury on the first trial specially found that the carrier was negligent and that the employee was free from contributory negligence, and where such new trial was granted at the instance of the carrier, and it did not ask for a rehearing or for a modification of the mandate, or for permission to introduce newly discovered evidence, and there was no offer of such newly discovered evidence on the second trial. [Ed. Note. For other cases, see Courts, Cent. Dig. §§ 1049-1077; Dec. Dig. § 394.*] [No. 779.] 1915. N ERROR to the Supreme Court of the judgment which, on a second appeal, affirmed a judgment of the Superior Court of Wake County, in that state, in favor of plaintiff in an action under the Federal employers' liability act. Affirmed. The case is entirely different from that Argued April 23, 1915. Decided June 14, of Illinois C. R. Co. v. Behrens, 233 U. S. 473, 58 L. ed. 1051, 34 Sup. Ct. Rep. 646, Ann. Cas. 1914C, 163, for there the train of empty cars was running between two points in the same state. The fact that they might soon thereafter be used in interstate business did not affect their intrastate status at the time of the injury; for, if the fact that a car had been recently engaged in interstate commerce, or was expected soon to be used in such commerce, brought them within the class of interstate vehicles, the effect would be to give every car on the line that character. Each case must be decided in the light of the particular facts with a view of de termining whether, at the time of the injury, the employee is engaged in interstate business, or in an act which is so directly and immediately connected with such business as substantially to form a part or a neccessary incident thereof. Under these principles the plaintiff is to be treated as having been employed in interstate commerce at the time of his injury, and the judgment in his favor must be affirmed. See same case below on first appeal, 163 N. C. 351, 52 L.R.A.(N.S.) 1114, 79 S. E. G85; on second appeal, 167 N. C. 290, 83 S. E. 360. The facts are stated in the opinion. Messrs. Murray Allen, R. N. Simms, John H. Small, and W. B. Rodman for plain tiff in error. Messrs. Clyde A. Douglass and William C. Douglass for defendant in error. Mr. Justice Lamar delivered the opinion of the court: Ferebee was employed by the Norfolk Southern Railroad Company as a train hand on a passenger train running from Raleigh, North Carolina, to Norfolk, Virginia. Dur *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |