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Again it is provided by § 2 of chapter 142. | p. 250, Acts 1899, viz.: "Sec. 2. Be it further enacted, That any such taxing district or city may condemn parks, or land for park purposes, under the power of eminent domain; and such taxing districts or cities are hereby expressly given the power to condemn, for park purposes, the yards, switches, tracks, the depot and property of every character, of any railroad company, and also the property of any manufacturing establish ment, and also the property of any other person or corporation, either within or without the limits of said taxing district or city, but not over 10 miles beyond the nearest point in said limits, as such limits may be at the time of said condemnation; and the proceedings for the exercise of this power of condemnation shall be the same as that now provided by law for the taking of private property for public uses.”
It will be observed that, by virtue of this amendment, land for parks, or park purposes, outside of the city limits, may be condemned, "under the power of eminent domain;" and "the proceedings for the exercise of this power of condemnation shall be the same as that now provided by law for the taking of private property for public
We are clearly of opinion that the amend atory act of 1899 became incorporated with the act of 1879 chartering the city of Memphis, and that the general statutes of the state providing for the condemnation of private property for public uses were thereby imported into the original charter as fully as though they had been specifically designated by chapter and section of the Code. The general law providing for the taking of private property for internal improvements is set out in §§ 1844 et seq., Shannon's Code. These sections provide as follows:
"Sec. 1844. Any person or corporation authorized by law to construct any railroad, turnpike, canal, toll bridge, road, causeway, or other work of internal improvement, to which the like privilege is conceded, may take the real estate of individuals, not exceeding the amount prescribed by law or by the charter under which the person or corporation acts in the manner and upon the terms herein provided.
"Sec. 1845. The party seeking to appropriate such land shall file a petition in the circuit court of the county in which the land lies, setting forth, in substance, (1) the parcel of land a portion of which is wanted and the extent wanted; (2) the name of the owner of such land, or, if unknown, stating the fact; (3) the object for which the land is wanted; (4) a prayer that a suitable
portion of land may be decreed to the petitioner, and set apart by metes and bounds. "Sec. 1846. Notice of this petition shall be given to the owner of the land, or, if a nonresident of the county, to his agent, at least five days before its presentation."
"Sec. 1849. After the requisite notice has been given, if no sufficient cause to the contrary is shown, the court shall issue a writ of inquiry of damages to the sheriff commanding him to summon a jury to inquire and assess the damages."
"Sec. 1856. The jury will then proceed to examine the ground, and may hear testimony, but no argument of counsel; and set apart by metes and bounds a sufficient quantity of land for the purposes intended, and assess the damages occasioned to the owner thereby.
"Sec. 1857. In estimating the damages the jury shall give the value of the land without deduction; but incidental benefits which may result to the owner by reason of the proposed improvement may be taken into consideration in estimating the incidental damages."
"Sec. 1859. If no objection is made to the report, it is confirmed by the court, and the land decreed to the petitioner upon payment to the defendants, or to the clerk for their use, [the amount] of the damages assessed, with costs."
"Sec. 1865. No person or company shall, however, enter upon such land for the purpose of actually occupying the right of way until the damages assessed by the jury of inquest and the costs have been actually paid; or, if an appeal has been taken, until the bond has been given to abide by the final judgment, as before provided.
"Sec. 1866. If, however, such person or company has actually taken possession of such land, occupying it for the purposes of internal improvement, the owner of such land may petition for a jury of inquest, in which case the same proceedings may be had, as near as may be, as hereinbefore provided, or he may sue for damages, in the ordinary way, in which case the jury shall lay off the land by metes and bounds, and assess the damages as upon the trial of an appeal from the return of a jury of inquest."
These sections of Shannon's Code substantially embrace the proceedings that are required to be taken for the condemnation of private property for any public use, which provisions, it will be observed, afford the landowner an ample remedy to receive just compensation for the land taken.
As already stated, in the opinion of the court, these sections of the Code, by the references to them found in the original charter of 1879, as well as in the amenda
tory act of 1899, have become an integral | said: "The park ways designated and depart of the charter of the city of Memphis.
It is next insisted that the body of the act of 1899 contains subjects which are not embraced in, or germane to, its title. The caption of the act is: "An Act to Amend an Act Entitled an Act to Establish Taxing Districts in This State, and to Provide a Means of Local Government for the Same, being Chapter 2 of the Acts of 1879 and the Acts Amendatory Thereof, so as to Authorize and Empower the Taxing Districts and Cities Organized under Said Act to Acquire, Improve, and Maintain Parks for the Benefit of the Public. Acts 1899, p. 250, chap. 142.
scribed in the act are designed for avenues uniting four of the parks. As they have been described, they are peculiarly appropriate for that purpose, and may well be regarded as incidents to, or extensions of, the areas of the parks themselves. The one, uniting what has been designated as the Van Cortlandt and Bronx parks, is intended to consist of about 80 acres of land devoted to a park way 600 feet in width and nearly 1 mile in length. Another, similarly to unite the Bronx and Pelham parks, includes an appropriation of about 91 acres of land, exclusive of an existing boulevard. The width of this park way will be 400 feet, and its length about 21⁄2 miles. The third is of minor importance, and is designed to serve as a similar avenue between what is called the Crotona and the Bronx parks." People ex rel. Seaver v. Green, 52 How. Pr. 440.
It is said, in the first place, that nothing is stated in the title in respect to acquiring, improving, and maintaining roadways or boulevards; but the title limits the right to acquiring, improving, and maintaining parks for the benefit of the public.
It is insisted that the body of the act authorizing the acquisition or condemnation of land for park ways or boulevards extending through the country merely for the purpose of connecting two parks with each other is not germane to the title.
This criticism upon the act cannot be maintained. It would be too narrow a construction of the act to exclude from its scope the building of boulevards or driveways necessary to connect two parks situated in remote parts of the city. Moreover, the legislature has not defined the shape or extent of the parks to be laid out under the provisions of this act, but has left that matter exclusively to the taste and discretion of the park commissioners and the legislative council. These authorities, in the exercise of their judgment, instead of laying out one park within the corporate limits of the city, have provided for the opening of two parks,-one situated northeast of the city, and known as "Overton park," and the other located southwest of the city, and designated as "Riverside park." For the convenience of the public. it was necessary that these two parks should be connected by a driveway, which, as now designed by the park commissioners, has become a part of the parks themselves. It is wholly immaterial how irregular and eccentric the shape of the parks thus constructed may appear, since that matter is confided exclusively to the judgment of the park commissioners. Everything that pertains to the building, extending, or connecting the parks authorized to be built under the provisions of the amendatory act of | presents another subject that is not em1899 is necessary, and by implication with- | braced within the title of chapter 142, p. in the general purview of the act.
The court of appeals of New York, in Re New York, 99 N. Y. 576, 2 N. E. 642, in dealing with a similar subject, said as follows: "The title is, 'An Act Laying out Public Places and Parks and Park Ways in the 23rd and 24th Wards of the City of New York and in the Adjacent District of Westchester County, and Authorizing the Taking of Lands for the Same' (Laws of 1884, chap. 522, p. 625), and is claimed to violate § 16, art. 3, of the Constitution, requiring that a private or local bill shall embrace but one subject, which shall be expressed in the title. Section 6 of the park act authorizes the use of a portion of Van Cortlandt park for the purpose of a rifle range and military parade ground, and § 12 extends over the whole of the newly acquired territory the jurisdiction of the department of public parks, which by the city charter of 1873 was made the dominant authority for their maintenance and protection. It is insisted that two new and separate subjects were thus injected into the body of the act, without hint or reference in the title. The criticism is quite too rigid and narrow. It would lead up to a condemnation which few titles would escape, until they became cumbersome and awkward digests of the details of their enactments. What are here denominated new subjects are fairly and reasonably elements and details of the laying out of new parks and the acquisition of lands therefor, and so embraced in the one general subject of the bill."
It is also objected that the body of the act authorizing the creation of a park commission and the election of commissioners
250, Acts 1889.
In Re New York, 34 Hun, 444, the court
This objection is also untenable, since the
creation of a park commission and a board | inal act, without enlarging its scope, is of park commissioners is clearly within the constitutional and valid, provided its purpurview of an act which authorizes the view is germane to the title of the original city of Memphis to acquire, improve, and act. maintain parks for the benefit of the public. A park commission is a useful and almost indispensable instrumentality for the maintenance and supervision of a system of public parks. Other criticisms of a similar nature are made on this act, but none are well taken, since, in our opinion, they are all settled by the rule laid down in Hyman v. State, 87 Tenn. 109, 1 L. R. A. 497, 9 S. W. 372. The rule therein announced is that an amendatory act whose caption merely recites the title of the orig
ATLANTA, KNOXVILLE, & NORTHERN
UNITED STATES CIRCUIT COURT OF APPEALS, SIXTH CIRCUIT.
George E. KINZEL, Admr., etc., of Joseph
The risks that are assumed by the servant, as an implied condition or incident of his contract of employment, are "ordinary risks" of the service. "Ordinary risks" are those obviously incident to the work.
(137 Fed. 489.)
Winkler v. St. Louis Basket & Box Co. 137 Mo. 394, 38 S. W. 921; Hannigan v.
A railroad engineer who obeys, al- Lehigh & H. River R. Co. 157 N. Y. 244,
though reluctantly, an order to take
region on its regular trip at a time of
51 N. E. 992; Consolidated Coal Co. v. Haenni, 146 Ill. 614, 35 N. E. 162; Doyle v. St. Paul, M. & M. R. Co. 42 Minn. 79, 43 N. W. 787; Davis v. Baltimore & O. R. Co. 152 Pa. 314, 25 Atl. 498; Texas & P. R. Co. v. Archibald, 170 U. S. 665, 42 L. ed. 1188, 18 Sup. Ct. Rep. 777; Worlds v. Georgia R. Co. 99 Ga. 283, 25 S. E. 646; Jenney Electric Light & P. Co. v. Murphy, 115 Ind. 566, 18 N. E. 30; Choctaw O. & G. R. Co. v. McDade, 50 C. C. A. 591, 112 Fed. 891, Affirmed in 191 U. S. 68, 48 L. ed. 101, 24 Sup. Ct. Rep. 24.
Employees do not assume the risks of the negligence of the company.
Choctaw, O. & G. R. Co. v. McDade, 50 C. C. A. 591, 112 Fed. 891, 191 U. S. 67, 48 L. ed. 100, 24 Sup. Ct. Rep. 24.
The risk to which deceased was subjected, and which caused his death, was one traceable directly and alone to defendant's negligence.
It is the duty of the employer to furnish and maintain safe places for his employees to work, which, in the case of railroads, means safe roadbed and track.
(May 11, 1905.)
RROR to the Circuit Court of the
United States for the Eastern District of Tennessee to review a judgment in favor of defendant in an action to recover damages for the alleged negligent killing of plaintiff's intestate. Affirmed.
The facts are stated in the opinion. Argued before Severens and Richards, Circuit Judges, and Cochran, District Judge.
Messrs. V. A. Huffaker and Pickle & Turner, for plaintiff in error:
There was no express contract of assumption of risks by the intestate at any time.
NOTE. For a case in this series holding that the negligence of the conductor of a freight train in going forward with the engine to examine culverts after a storm under the order of the road master is a question for the jury, see Terre Haute & I. R. Co. v. Fowler, 48 L. R. A. 531.
All of the subjects which are claimed by counsel for defendant in error to be outside of the title of the amendatory act are clearly within its purview, since they all relate to the one subject-matter embraced in the title, viz., the acquisition, improvement, and maintenance of parks for the benefit of the public. It results that the judgment below was erroneous, and is reversed, the demurrer overruled, and the cause remanded.
As to servant's right of action generally for injuries received in obeying direct command, see also Dallemand v. Saalfeldt, 48 L. R. A. 753,
and note; Finn v. Cassidy, 53 L. R. A. 877; and
Illinois Southern R. Co. v. Marshall, 66 L. R. A. 297.
Hugh v. Texas & P. R. Co. 100 U. S. 213, 25 L. ed. 612; Union P. R. Co. v. Daniels (Union P. R. Co. v. Snyder), 152 U. S. 684, 38 L. ed. 597, 14 Sup. Ct. Rep. 756; Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 37 L. ed. 772, 13 Sup. Ct. Rep. 914; Chocaw, O. & G. R. Co. v. McDade, 191 U. S. 67, 48 L. ed. 100, 24 Sup. Ct. Rep. 24; Northern P. R. Co. v. Babcock, 154 U. S. 190, 38 L. ed. 958, 14 Sup. Ct. Rep. 978;
Union P. R. Co. v. O'Brien, 161 U. S. 451, | knowledge of the existence of the defects, 40 L. ed. 766, 16 Sup. Ct. Rep. 618; Texas & P. R. Co. v. Archibald, 170 U. S. 670, 42 L. ed. 1191, 18 Sup. Ct. Rep. 777.
and full appreciation of their dangerous character, and has recklessly and with such knowledge encountered the same.
The master's care and diligence as regards safety of place to work, etc., must be such as "the exigency reasonably demands." Union P. R. Co. v. O'Brien, 161 U. S. 451, 40 L. ed. 766, 16 Sup. Ct. Rep. 618; Hough v. Texas & P. R. Co. 100 U. S. 213, 25 L. ed. 612; Georgia P. R. Co. v. Dooly, 12 L. R. A. 342, note, 86 Ga. 294, 12 S. E. 923.
Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 68, 48 L. ed. 100, 24 Sup. Ct. Rep. 24; Texas & P. R. Co. v. Archibald, 170 U. S. 665, 42 L. ed. 1188, 18 Sup. Ct. Rep. 777; Houston E. & W. T. R. Co. v. De Walt, 96 Tex. 121, 97 Am. St. Rep. 893, 70 S. W. 531; Stephens v. Hannibal & St. J. R. Co. 96 Mo. 207, 9 Am. St. Rep. 336, 9 S. W. 589; Ittner Brick Co. v. Killian (Neb.) 93 N. W. 951; Delaware River Iron-Ship Bldg. & E. Works v. Nuttall, 119 Pa. 149, 13 Atl. 65; Williams v. Clark, 204 Pa. 416, 54 Atl. 315; Harrison v. Denver & R. G. W. R. Co. 7 Utah, 523, 27 Pac. 728; McKee v. Tourtellotte, 167 Mass. 69, 48 L. R. A. 542, 44 N. E. 1071; Chicago & N. W. R. Co. v. Bayfield, 37 Mich. 205; Harder & H. Coal Min. Co. v. Schmidt, 43 C. C. A. 532, 104 Fed. 282; Goldthorpe v. ClarkNickerson Lumber Co. 31 Wash. 467, 71 Pac. 1091; English v. Chicago, M. & St. P. R. Co. 24 Fed. 906; O'Maley v. South Boston Gaslight Co. 158 Mass. 135, 47 L. R. A. 164, 32 N. E. 1119; East Tennessee, V. & G. R. Co. v. Duffield, 12 Lea, 63, 47 Am. Dec. 319.
Texas & P. R. Co. v. Archibald, 170 U. S. 665, 42 L. ed. 1188, 18 Sup. Ct. Rep. 777; | Union P. R. Co. v. O'Brien, 161 U. S. 451, 40 L. ed. 766, 16 Sup. Ct. Rep. 618, 49 Fed. 538; James B. Clow & Sons v. Boltz, 34 C. C. A. 550, 92 Fed, 572; New York N. H. & H. R. Co. v. O'Leary, 35 C. C. A. 562, 93 Fed. 737; Valley R. Co. v. Keegan, 31 C. C. A. 255, 58 U. S. App. 377, 87 Fed. 849; Rockport Granite Co. v. Bjornholm, 53 C. C. A. 429, 115 Fed. 947.
The employee may unquestionably assume that the employer has performed his duty in this regard, and proceed in the service, relying upon such performance of duty by the employer without question or investigation.
This duty of the master to protect his servant against injury by keeping him in a safe place to work, and out of an unsafe one, is a positive, active duty of the master that he cannot delegate to anyone, even to a fellow servant, so as to defeat his own liability for its breach.
Union P. R. Co. v. Daniels (Union P. R. Co. v. Snyder) 152 U. S. 684, 38 L. ed. 597, 14 Sup. Ct. Rep. 756; Neeley v. Southwestern Cotton Seed Oil Co. 13 Okla. 356, 64 L. R. A. 145, 75 Pac. 537; Chicago & N. W. R. Co. v. Swett, 92 Am. Dec. 206, and note, 45 Ill. 197.
It is no answer to his failure to maintain safety of place that the master made the place safe originally, and has kept a sufficient force to inspect and repair it, where there was failure to repair before the servant was sent into the unsafe place.
Union P. R. Co. v. Daniels (Union P. R. Co. v. Snyder), 152 U. S. 684, 38 L. ed. 597, 14 Sup. Ct. Rep. 756; Texas & P. R. Co. v. Archibald, 170 U. S. 665, 42 L. ed. 1188, 18 Sup. Ct. Rep. 777, Affirmed and Applied in Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 67, 48 L. ed. 100, 24 Sup. Ct. Rep. 24; Georgia P. R. Co. v. Dooly, 12 L. R. A. 343, note, 86 Ga. 294, 12 S. E. 923; Union P. R. Co. v. Fort, 17 Wall, 553, 21 L. ed. 739.
The servant will be repelled on the ground of contibutory negligence, in cases of this character, only where he has full
Messrs. Smith, Hammond, & Smith and Cornick, Wright, & Frantz for defendant in error.
Richards, Circuit Judge, delivered the opinion of the court:
This was a suit for the wrongful death of the plaintiff's intestate, Joseph Kinzel, who was a locomotive engineer in the employ of the defendant company, and lost his life in the wreck of his engine, caused by a landslide in the mountains of Tennessee. The court below twice directed a verdict for the defendant on the ground that Kinzel's death was the result of a pure accident, for which the railway company was not to blame, and the risk of which he had assumed. This action is here for review.
The material facts are conceded. Kinzel had been a locomotive engineer for seven years, and for three years had run a freight train south from Knoxville through the mountains into Georgia. Two or 3 miles south of the station of Wetmore the mountainous region began, and continued for about 22 miles. For the most of this distance the railroad ran along the side of the mountains, at the foot of which flows the Hiawassee river. The steepest part of the line began at Appalachia, about 20 miles south of Wetmore, and extended several miles south to Farner, which is near the summit. Beyond Farner is Blue Ridge
Georgia. Naturally the portion of the line | the section foreman, who had a few minutes most liable to landslides was that between before passed along where he was then runAppalachia and Farner. The portion be- ning, suddenly and without warning a slide tween Wetmore and Appalachia was re- occurred under or directly in front of the garded as comparatively safe. The accident engine, which carried the track and engine occurred ab 6 or 7 miles south of Wet- down into the river. The section foreman more, about 11 o'clock on the night of Feb- was within 300 or 400 yards of the engine, ruary 27, 1902. That day Kinzel was en- watching it, when the slide carried it down. gaged as usual, in running freight train Kinzel, though terribly hurt, was still alive No. 13 from Knoxville to Blue Ridge. He when taken out of the wreck. He told the left Knoxville at 12:30 P. M., and arrived foreman that he saw his light, and thought at Wetmore at 5:30 P. M., about two hours everything was all right, but the slide came late. He was drawing a train of twelve in on him, giving him no chance to avoid it. cars, loaded with coal and coke. It had been raining for two or three days, and slides and washouts were anticipated in the mountains. Because of this, trains Nos. 11, 12, and 14, of that date, between Blue Ridge and Knoxville, were annuled. This left but one train going north (No. 2, a passenger train) and one train (No. 13, Kinzel's freight) running south. The passenger train, No. 2, was delayed by small slides in the mountains, and did not reach Wetmore until after 9 o'clock. In the meantime Kinzel, acting under a special order, went back to Grady with his engine, and brought four camp cars, with track tools and men, to Wetmore, for the purpose of taking them along with his train up into the mountains to repair the track next day. Passenger train No. 2, when it arrived at Wetmore, reported that it had struck several small slides, that a large one fell in behind it, and that it did not think No. 13 could get through that night. Before the arrival of No. 2 at Wetmore, Kinzel asked the operator to tell the train despatcher that he did not want to go through that night, because it was not safe, and that he could not go through anyhow. The reply came back that he would have to proceed with his train, and cautioned him to run slowly and carefully, and look out for slides. About 9:30 he pulled out south, having cut off two of his loaded cars, and attached the four camp cars which were needed for the next day's work in the mountains. The primary object of sending Kinzel's train from Wetmore south that night was to get the extra track gang from Grady to the mountain line, in order to open the road for the next day's business. The secondary purpose was to advance the freight as far as Appalachia. There was no idea of any serious trouble between Wetmore and Appalachia. The trouble was usually between Appalachia and Farner. Kinzel proceeded south, observing the caution to run slowly. The track was being patrolled by an extra gang of track walkers. | About 6 or 7 miles south of Wetmore, where the road ran along the foot of the mountain about 20 feet above the river, and when Kinzel was in sight of the light of
There was no testimony tending to show that the defendant was to blame for the slide which caused the accident. There was in Union P. R. Co. v. O'Brien, 161 U. S. 451, 40 L. ed. 766, 16 Sup. Ct. Rep. 618. For aught that appeared, the roadbed was properly constructed, and the track that night was exceptionally well patrolled. It was not in Fisher v. Oregon Short Line & U. N. R. Co. 22 Or. 533, 16 L. R. A. 519, 30 Pac. 425. The section foreman passed along on his round of inspection but a few minutes before the slide took place, and there was nothing to indicate trouble ahead. The track and its surroundings appeared to be all right.
The plaintiff's case therefore rests solely on the claim that the defendant was at fault in sending Kinzel into the mountains that night. It is insisted he was ordered into a place of unusual danger, despite his protest and against his will, and was thus exposed to perils known to the company, but of which he was ignorant, with the result described. In other words, it is insisted he was the victim of a negligent order which subjected him to risks outside his regular employment. If this claim found support in the testimony, there might have been a case for the jury. But there was no order given him, in the sense claimed. Kinze! was not engaged in extraordinary work under a special order. He was on his regular run. It is true, he was being exposed to an additional risk by reason of the weather. A railroad in a mountainous region is liable to slides and washouts in rainy weather. This is a matter of common knowledge. Kinzel knew this when he took the job. And of course he assumed the risk. It was one of the risks of his employment. Union P. R. Co. v. O'Brien, 161 U. S. 451, 456, 40 L. ed. 766, 770, 16 Sup. Ct. Rep. 618, 1 C. C. A. 354, 4 U. S. App. 221, 49 Fed. 538. Rains will come in mountains as well as elsewhere, but trains must be run, and roads kept open for traffic, notwithstanding the increased risk to operatives.
Moreover, the record contains plenty of proof that Kinzel was advised on the day of the accident of the increased risk of the