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Again it is provided by $ 2 of chapter 142, 1 portion of land may be decreed to the petip. 250, Acts 1899, viz.: "Sec. 2. Be it fur- tioner, and set apart by metes and bounds. ther enacted, That any such taxing district "Sec. 1846. Notice of this petition shall or city may condemn parks, or land for park be given to the owner of the land, or, if a purposes, under the power of eminent do- non resident of the county, to his agent, at main; and such taxing districts or cities are least five days before its presentation.” hereby expressly given the power to con- “Sec. 1819. After the requisite notice has demn, for park purposes, the yards, switches, been given, if no sufficient cause to the contracks, the depot and property of etery char- trary is shown, the court shall issue a acter, of any railroad company, and also the writ of inquiry of damages to the sheriff property of any manufacturing establish commanding him to summon a jury to inment, and also the property of any other quire and assess the damages.” person or corporation, either within or with- “Sec. 1856. The jury will then proceed to out the limits of said taxing district or city, examine the ground, and may hear testibut not over 10 miles beyond the nearest mony, but no argument of counsel; and set point in said limits, as such limits may be apart by metes and bounds a sufficient at the time of said condemnation; and the quantity of land for the purposes intended, proceedings for the exercise of this power of and assess the damages occasioned to the condemnation shall be the same as that now owner thereby. provided by law for the taking of private “Sec. 1857. In estimating the damages the property for public uses."

jury shall give the value of the land withIt will be observed that, by virtue of this out deduction; but incidental benefits which amendment, land for parks, or park pur- may result to the owner by reason of the poses, outside of the city limits, may be proposed improvement may be taken into condemned, “under the power of eminent do- consideration in estimating the incidental main;” and “the proceedings for the exer- damages.” cise of this power of condemnation shall be “Sec. 1859. If no objection is made to the the same as that now provided by law for report, it is confirmed by the court, and the the taking of private property for public land decreed to the petitioner upon payuse."

ment to the defendants, or to the clerk for We are clearly of opinion that the amend their use, (the amount) of the damages asatory act of 1899 became incorporated with sessed, with costs." the act of 1879 chartering the city of Mem- "Sec. 1865. No person or company shall, phis, and that the general statutes of the however, enter upon such land for the purstate providing for the condemnation of pri- pose of actually occupying the right of way vate property for public uses were thereby until the damages assessed by the jury of imported into the original charter as fully inquest and the costs have been actually as though they had been specifically desig- paid; or, if an appeal has been taken, unnated by chapter and section of the Code. til the bond has been given to abide by the The general law providing for the taking final judgment, as before provided. of private property for internal improve

“Sec. 1866. If, however, such person or ments is set out in $8 1844 et seq., Shan. company has actually taken possession of non's Code. These sections provide as fol- such land, occupying it for the purposes of lows:

internal improvement, the owner of such “Sec. 1844. Any person or corporation au- land may petition for a jury of inquest, in thorized by law to construct any railroad, which case the same proceedings may be turnpike, canal, toll bridge, road, causeway, had, as near as may be, as hereinbefore proor other work of internal improvement, to vided, or he may sue for damages, in the which the like privilege is conceded, may ordinary way, in which case the jury shall take the real estate of individuals, not ex- | lay off the land by metes and bounds, and ceeding the amount prescribed by law or assess the damages as upon the trial of an by the charter under which the person or appeal from the return of a jury of inquest.” corporation acts in the manner and upon the These sections of Shannon's Code subterms herein provided.

stantially embrace the proceedings that are “Sec. 1845. The party seeking to appro- required to be taken for the condemnation priate such land shall file a petition in the of private property for any public use, circuit court of the county in which the which provisions, it will be observed, afland lies, setting forth, in substance, (1) the ford the landowner an ample remedy to reparcel of land a portion of which is wanted ceive just compensation for the land taken. and the extent wanted; (2) the name of the As already stated, in the opinion of the owner of such land, or, if unknown, stating court, these sections of the Code, by the the fact; (3) the object for which the land references to them found in the original is wanted; (4) a prayer that a suitable 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 Mem- scribed in the act are designed for avenues phis.

uniting four of the parks. As they have It is next insisted that the body of the been described, they are peculiarly approact of 1899 contains subjects which are not priate for that purpose, and may well be embraced in, or germane to, its title. The regarded as incidents to, or extensions of, caption of the act is: “An Act to Amend the areas of the parks themselves. The one, an Act Entitled an Act to Establish Taxing uniting what has been designated as the Districts in This State, and to Provide a Van Cortlandt and Bronx parks, is intended Means of Local Government for the Same, to consist of about 80 acres of land devoted being Chapter 2 of the Acts of 1879 and the to a park way 600 feet in width and nearly Acts Amendatory Thereof, so as to Author: 1 mile in length. Another, similarly to ize and Empower the Taxing Districts and unite the Bronx and Pelham parks, includes Cities Organized under Said Act to Ac. an appropriation of about 91 acres of land, quire, Improve, and Maintain Parks for exclusive of an existing boulevard. The the Benefit of the Public. Acts 1899, p. width of this park way will be 400 feet, and 250, chap. 142.

its length about 24/2 miles. The third is of It is said, in the first place, that nothing minor importance, and is designed to serve is stated in the title in respect to acquir- as a similar avenue between what is called ing, improving, and maintaining road. the Crotona and the Bronx parks.” People ways or boulevards; but the title limits the ex rel. Seaver v. Green, 52 How. Pr. 440. right to acquiring, improving, and main- The court of appeals of New York, in Re taining parks for the benefit of the public. New York, 99 N. Y. 576, 2 N. E. 642, in

It is insisted that the body of the act dealing with a similar subject, said as folauthorizing the acquisition or condemnation lows: "The title

is, 'An Act Lay. of land for park ways or boulevards extending out Public Places and Parks and Park ing through the country merely for the Ways in the 23rd and 24th Wards of the purpose of connecting two parks with each City of New York and in the Adjacent Disother is not germane to the title.

trict of Westchester County, and AuthorThis criticism upon the act cannot be izing the Taking of Lands for the Same' maintained. It would be too narrow a con- (Laws of 1884, chap. 522, p. 625), and is struction of the act to exclude from its claimed to violate $ 16, art. 3, of the Con. scope the building of boulevards or drive- stitution, requirin, that a private or local ways necessary to connect two parks situ- bill shall embrace but one subject, which ated in remote parts of the city. More shall be expressed in the title. Section 6 over, the legislature has not defined the of the park act authorizes the use of a shape or extent of the parks to be laid out portion of Van Cortlandt park for the purunder the provisions of this act, but has left pose of a rifle range and military parade that matter exclusively to the taste and ground, and § 12 extends over the whole of discretion of the park commissioners and the newly acquired territory the jurisdicthe legislative council. These authorities, tion of the department of public parks, in the exercise of their judgment, instead which by the city charter of 1873 was made of laying out one park within the corporate the dominant authority for their maintenlimits of the city, have provided for the ance and protection. It is insisted that two opening of two parks,--one situated north- new and separate subjects were thus injected east of the city, and known as "Overton into the body of the act, without hint or park,” and the other located southwest of reference in the title. The criticism is the city, and designated as “Riverside quite too rigid and narrow. It would lead park.” For the convenience of the public, up to a condemnation which few titles would it was necessary that these two parks escape, until they became cumbersome and should be connected by a driveway, which, awkward digests of the details of their enas now designed by the park commissioners, actments. What here denominated has become a part of the parks themselves. new subjects are fairly and reasonably eleIt is wholly immaterial how irregular and ments and details of the laying out of new eccentric the shape of the parks thus con parks and the acquisition of lands therestructed may appear, since that matter is for, and so embraced in the one general confided exclusively to the judgment of the subject of the bill.” park commissioners. Everything that per: It is also objected that the body of the tains to the building, extending, or con act authorizing the creation of a park comnecting the parks authorized to be built un mission and the election of commissioners der 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.

250, Acts 1889. In Re New York, 34 Hun, 444, the court This objection is also untenable, since the

are

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 benetit of the pub All of the subjects which are claimed by lic. A park commission is a useful and al counsel for defendant in error to be outmost indispensable instrumentality for the side of the title of the amendatory act are maintenance and supervision of a system clearly within its purview, since they all of public parks. Other criticisms of a relate to the one subject matter embraced similar nature are made on this act, but in the title, viz., the acquisition, improvenone are well taken, since, in our opinion, ment, and maintenance of parks for the they are all settled by the rule laid down in benefit of the public. It results that the Hyman v. State, 87 Tenn. 109, 1 L. R. A. judgment below was erroneous, and is re497, 9 S. W. 372. The rule therein an- versed, the demurrer overruled, and the nounced is that an amendatory act whose cause remanded. caption merely recites the title of the orig.

UNITED STATES CIRCUIT COURT OF APPEALS, SIXTH CIRCUIT.

A

his

George E. KINZEL, Admr., etc., of Joseph The risks that are assumed by the servH. Kinzel, Deceased, Plff. in Err., ant, as an implied condition or incident of

his contract of employment, are “ordinary ATLANTA, KNOXVILLE, & NORTHERN risks” of the service. "Ordinary risks” are RAILWAY COMPANY.

those obviously incident to the work.

Winkler v. St. Louis Basket & Box Co. (137 Fed. 489.)

137 Mo. 394, 38 S. W. 921; Hannigan v. railroad engineer who obeys, although reluctantly, an order to take Lehigh & H. Rivor R. Co. 157 N. Y. 244, train through mountainous

51 N. E. 992; Consolidated Coal Co. v. region on its regular trip at a time of Haenni, 146 Ill. 614, 35 N. E. 162; Doyle heavy rains, when land slides are anticipated. v. St. Paul, M. & M. R. Co. 42 Minn, 79, assumes the risk of such slides, and cannot | 43 N. W. 787; Davis v. Baltimore & 0. R. hold the company responsible in case his train Co. 152 Pa. 314, 25 Atl. 498; Teras & P. is carried from the track by a slide which

E United States for Cheniet stern District of

R. Co. v. Archibald, 170 U. S. 665, 42 L. comes upon it so suddenly that there is no time to escape, and the danger of which was ed. 1188, 18 Sup. Ct. Rep. 777; Worlds v. not observed by a track inspector, who had Georgia R. Co. 99 Ga. 283, 25 S. E. 646; passed the spot just before the train reached Jenney Electric Light & P. Co. v. Murphy, there; since it must be regarded as pure ac

115 Iud. 566, 18 N. E. 30; Choctaw 0. & G. cident. (May 11, 1905.)

R. Co. v. McDade, 50 C. C. A. 591, 112 Fed.

891, Affirmed in 191 U. S. 68, 48 L. ed. 101, RROR to the Circuit Court of the 24 Sup. Ct. Rep. 24.

Employees do not assume the risks of the Tennessee to review a judgment in favor

negligence of the company. of defendant in an action to recover dam

Choctaw, 0. & G. R. Co. v. McDade, 50 C. ages for the alleged negligent killing of C. A. 591, 112 Fed. 891, 191 U. S. 67, 48 plaintiff's intestate. Affirmed.

L. ed. 100, 24 Sup. Ct. Rep. 24. The facts are stated in the opinion.

The risk to which deceased was subjected, Argued before Severens and Richards, and which caused his death, was one traceCircuit Judges, and Cochran, District Judge. able directly and alone to defendant's negMessrs. V. A. Huffaker and Pickle &

ligence. Turner, for plaintiff in error:

It is the duty of the employer to furnish There was no express contract of assump- and maintain safe places for his employees tion of risks by the intestate at any time.

to work, which, in the case of railroads, NOTE.--For a case in this series holding that means safe roadbed and track. the negligence of the conductor of a freight Hugh v. Texas ( P. R. Co. 100 U. S. 213, train in going forward with the engine to ex

25 L. ed. 612; Union P. R. Co. v. Daniels amine culverts after a storm under the order

(Union P. R. Co. v. of the road master is a question for the jury,

Snyder), 152 U. S. 684, see Terre Haute & I. R. Co. v. Fowler, 48 L. R.

38 L. ed. 597, 14 Sup. Ct. Rep. 756; BaltiA. 531.

more & 0. R. Co. v. Baugh, 149 U, S. 368, As to servant's right of action generally for | 37 L. ed. 772, 13 Sup. Ct. Rep. 914; Chocinjuries received in obeying direct command, taro, o. & G. R. Co. v. McDade, 191 U. S. see also Dallemand v. Saalfeldt, 48 L. R. A. 753, and note; Finn v. Cassidy, 53 L. R. A. 877; and 67, 48 L. ed. 100, 24 Sup. Ct. Rep. 24; lilinois Southern R. Co. v. Marshall, 66 L. R. A.

Northern P. R. Co. v. Babcock, 154 U. S. 297.

190, 38 L, ed. 958, 14 Sup. Ct. Rep. 978;

re

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 and full appreciation of their dangerous & P. R. Co. v. Archibald, 170 U. S. 670, 42 character, and has recklessly and with such L. ed. 1191, 18 Sup. Ct. Rep. 777.

knowledge encountered the same. The master's care and diligence as Choctaw, 0. & G. R. Co. v. McDade, 191 gards safety of place to work, etc., must be U. S. 68, 48 L. ed. 100, 24 Sup. Ct. Rep. such as “the exigency reasonably demands.” 24; Texas & P. R. Co. v. Archibald, 170

Union P. R. Co. v. O'Brien, 161 U. S. 451, U. S. 665, 42 L. ed. 1188, 18 Sup. Ct. Rep. 40 L. ed. 766, 16 Sup. Ct. Rep. 618; 777; Houston E. & W. 1. R. Co. v. De Walt, Hough v. Texas & P. R. Co. 100 U, S. 213, 96 Tex. 121, 97 Am. St. Rep. 893, 70 S. 25 L. ed. 612; Georgia P. R. Co. v. Dooly, W. 531; Stcphens v. Hannibal & St. J. R. 12 L. R. A. 342, note, 86 Ga. 294, 12 S. E. Co. 96 Mo. 207, 9 Am. St. Rep. 336, 9 S. 923.

W. 589; Ittner Brick Co. v. Killian (Neb.) The employee may unquestionably as- 93 N. W. 951; Delaware River Iron-Ship sume that the employer has performed his Bldg. & E. Works v. Nuttall, 119 Pa. 149, duty in this regard, and proceed in the 13 Atl. 65; Williams v. Clark, 204 Pa. 416, service, relying upon such performance of 54 Atl. 315; Harrison v. Denver & R. G. duty by the employer without question or W. R. Co. 7 Utah, 523, 27 Pac. 728; Mcinvestigation.

kre v. Tourtellotte, 167 Mass. 69, 48 L. Texas & P. R. Co. v. Archibald, 170 U. S. R. A. 542, 44 N. E. 1071; Chicago & N. W. 665, 42 L. ed. 1188, 18 Sup. Ct. Rep. 777; R. Co. v. Bayfield, 37 Mich. 205; Harder Union P. R. Co. v. O'Brien, 161 U. S. 451, & H. Coal Min. Co. v. Schmidt, 43 C. C. A. 40 L. ed. 766, 16 Sup. Ct. Rep. 618, 49 532, 104 Fed. 282; Goldthorpe v. ClarkFed. 538; James B. Clow & Sons v. Boltz, Nickerson Lumber Co. 31 Wash. 467, 71 34 C. C. A. 550, 92 Fed. 572; New York Pac. 1091; English v. Chicago, M. & St. N. 1. & H. R. Co. v. O'Leary, 35 C. C. A. P. R. Co. 24 Fed. 906; O'Maley v. South 562, 93 Fed. 737; Valley R. Co. v. Keegan, Boston Gaslight Co. 158 Mass. 135, 47 L. 31 C. C. A. 255, 58 U. S. App. 377, 87 Fed. R. A. 164, 32 N. E. 1119; East Tennessee, 849; Rockport Granite Co. v. Bjornholm, V. & G. R. ('0. v. Duffield, 12 Lea, 63, 47 53 C. C. A. 429, 115 Fed. 947.

Am. Dec. 319. This duty of the master to protect his Messrs. Smith, Hammond, & Smith servant against injury by keeping him in a and Cornick, Wright, & Frantz for desafe place to work, and out of an unsafe fendant in error. one, is a positive, active duty of the master that he cannot delegate to anyone, even Richards, Circuit Judge, delivered the to a fellow servant, so as to defeat his own opinion of the court: liability for its breach.

This was a suit for the wrongful death Union P. R. Co. v. Daniels (Union P. of the plaintiff's intestate, Joseph Kinzel, R. Co. v. Snyder) 152 U. S. 684, 38 L. ed. who was a locomotive engineer in the em597, 14 Sup. Ct. Rep. 756; Neeley v. South- ploy of the defendant company, and lost western Cotton Seed Oil Co. 13 Okla. 356, his life in the wreck of his engine, caused 64 L. R. A. 145, 75 Pac. 537; Chicago by a landslide in the mountains of TennesN. W. R. Co. v. Swett, 92 Am. Dec. 206, and The court below twice directed a vernote, 45 Ill. 197.

dict for the defendant on the ground that It is no answer to his failure to main. Kinzel's death was the result of a pure tain safety of place that the master made accident, for which the railway company the place safe originally, and has kept a was not to blame, and the risk of which sufficient force to inspect and repair it, he had assumed. This action is here for where there was failure to repair before the review. servant was sent into the unsafe place. The material facts are conceded. Kin

Union P. R. Co. v. Daniels (Union P.zel had been a locomotive engineer for seven R. Co. v. Snyder), 152 U. S. 684, 38 L. ed. years, and for three years had run a freight 597, 14 Sup. Ct. Rep. 756; Teras & P. R. train south from Knoxville through the Co. v. Archibald, 170 U. S. 665, 42 L. ed. mountains into Georgia. Two or 3 miles 1188, 18 Sup. Ct. Rep. 777, Affirmed and south of the station of Wetmore the mounApplied in Choctaw, O. & G. R. Co. v. tainous region began, and continued for McDade, 191 U. S. 67, 48 L. ed. 100, 24 Sup. about 22 miles. For the most of this disCt. Rep. 24; Georgia P. R. Co. v. Dooly, 12 tance the railroad ran along the side of the L. R. A. 343, note, 86 Ga. 294, 12 S. E. mountains, at the foot of which flows the 923; Union P. R. Co. v. Fort, 17 Wall, 553, Hiawassee river. The steepest part of the 21 L. ed. 739.

Jine began at Appalachia, about 20 miles The servant will be repelled on the south of Wetmore, and extended several ground of contibutory negligence, in cases miles south to Farner, which is near the of this character, only where he has full summit. Beyond Farner is Blue Ridge

see.

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 about 6 or 7 miles uth 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 There was no testimony tending to show been raining for two or three days, and slides that the defendant was to blame for the and washouts were anticipated in the moun

slide which caused the accident. There was tains. Because of this, trains Nos. 11, 12, in Union P. R. Co. v. O'Brien, 161 U. S. 451, and 14, of that date, between Blue Ridge and 40 L. ed. 766, 16 Sup. Ct. Rep. 618. For Knoxville, were annuled. This left but one aught that appeared, the roadbed was proptrain going north (No. 2, a passenger train) erly constructed, and the track that night and one train (No. 13, Kinzel's freight) was exceptionally well patrolled. It was running south. The passenger train, No. 2, not in Fisher v. Oregon Short Line & U. N. was delayed by small slides in the moun- R. Co. 22 Or. 533, 16 L. R. A. 519, 30 Pac. tains, and did not reach Wetmore until after 425. The section foreman passed along on 9 o'clock. In the meantime Kinzel, acting his round of inspection but a few minutes under a special order, went back to Grady before the slide took place, and there was with his engine, and brought four camp nothing to indicate trouble ahead. The cars, with track tools and men, to Wet- track and its surroundings appeared to be more, for the purpose of taking them along all right. with his train up into the mountains to The plaintiff's case therefore rests solely repair the track next day. Passenger train on the claim that the defendant was at No. 2, when it arrived at Wetmore, reported fault in sending Kinzel into the mountains that it had struck several small slides, that that night. It is insisted he was ordered a large one fell in behind it, and that it did | into a place of unusual danger, despite his not think No. 13 could get through that protest and against his will, and was thus night. Before the arrival of No. 2 at Wet- exposed to perils known to the company, more, Kinzel asked the operator to tell the but of which he was ignorant, with the retrain despatcher that he did not want to go sult described. In other words, it is inthrough that night, because it was not safe, sisted he was the victim of a negligent orand that he could not go through anyhow. der which subjected him to risks outside his The reply came back that he would have to regular employment. If this claim found proceed with his train, and cautioned him support in the testimony, there might have to run slowly and carefully, and look out been a case for the jury. But there was no for slides. About 9:30 he pulled out south, <rder given him, in the sense claimed. Kinhaving cut off two of his loaded cars, and ze! was not engaged in extraordinary work attached the four camp cars which were under a special order. He was on his reguneeded for the next day's work in the moun- lar run. It is true, he was being exposed to tains. The primary object of sending Kin an additional risk by reason of the weather. zel's train from Wetmore south that night A railroad in a mountainous region is liawas to get the extra track gang from Grady ble to slides and washouts in rainy weather. to the mountain line, in order to open the This is a matter of common knowledge. road for the next day's business. The Kinzel knew this when he took the job. secondary purpose

to advance the And of course he assumed the risk. It was freight as far as Appalachia. There was no one of the risks of his employment. Union idea of any serious trouble between Wet- P. R. Co. v. O'Brien, 161 U. S. 451, 456, 40 more and Appalachia. The trouble was L. ed. 766, 770, 16 Sup. Ct. Rep. 618, 1 C. usually between Appalachia and Farner. C. A. 354, 4 U. S. App. 221, 49 Fed. 538. Kinzel proceeded south, observing the cau- Rains will come in mountains as well as tion to run slowly. The track was being elsewhere, but trains must be run, and roads patrolled by an extra gang of track walkers. kept open for traffic, notwithstanding the About 6 or 7 miles south of Wetmore, increased risk to operatives. where the road ran along the foot of the Moreover, the record contains plenty of mountain about 20 feet above the river, and proof that Kinzel was advised on the day when Kinzel was in sight of the light of of the accident of the increased risk of the

was

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