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action, was engaged in tearing down a bridge on the line of the railroad, [44] and a defect in a claw bar which he was directed to use caused the bar to slip while he was attempting to draw a bolt; in consequence he lost his balance and fell to the ground, a distance of 12 feet. The defect, it is alleged, Williams did not know.

Negligence, however, was charged against him, and assumption of risk and contributory negligence.

He recovered a verdict in the sum of $5,000. Motions for new trial and arrest of judgment were denied and the case was appealed to the Kansas City court of appeals.

The facts, as recited by the court, are that Williams was twenty-one years old, and had been reared on a farm. He entered the service of the railroad as a common laborer in August, 1915, and worked for it until his injury in November of that year, his work being that of "helping build steel bridges and taking down old ones." He was ordered by the foreman in charge of the work to use a claw bar which was defective, in that the claws "had become so rounded and dull by long usage that they could not be made to grab the shank securely, and slipped from their hold when plaintiff (Williams) pressed downward on the handle, causing him to lose his balance and fall from the cap to the ground." The plaintiff stated that to discover the defect required an inspection of the underside of the tool, and that, in obeying the order of the foreman, he did not pause to make such inspection, but used the tool without any but casual inspec- | tion of its top surface, which did not reveal the defect.

The railroad was engaged in interstate commerce, and the cause of action, under the case as made, fell within the purview of the Federal Employers' Liability Act.

The conclusion of the court was that "the defect in the claw bar was so obvious that the most cursory and superficial inspection would have disclosed it to the plaintiff." And further: "The risk was just as obvious as the [45] defect. This was a simple tool, which, in the course of use, would be expected to fall into such defective condition, and plaintiff must be held to have appreciated the danger and to have voluntarily assumed it."

The court reversed the judgment. It denied a motion for rehearing, but considered and adjudged "that, on account of one of the judges deeming the deci

I

sion to be in conflict with Fish v. Chicago, R. I. & P. R. Co. 263 Mo. 106, 123, 172 S. W. 340, Ann. Cas. 1916B, 147, 8 N. C. C. A. 538, it is without jurisdiction, and therefore orders said cause certified to the supreme court for its determination."

The supreme court, upon considering Fish v. Chicago, R. I. & P. R. Co. and other cases, decided that "it was the duty of the master to furnish the servant a reasonably safe claw bar with which to do the work. The failure to furnish that character of a claw bar was negligence upon the part of the master. If the defects were so glaring, and the claw bar so patently defective that an ordinarily prudent servant would not have used it, then its use under such circumstances was negligence upon the part of the servant, which negligence, under the rule in Missouri, would bar him from a recovery. But not so under the Federal statute." [272 Mo. 623, 200 S. W. 53.] In other words, the court held that Williams's assumption of the risk did not have the consequence assigned to it by the Kansas City court of appeals, but, if it existed, amounted in legal effect only to contributory negligence, and that such negligence, under the Federal statute, worked a reduction of damages, and not a defeat of the action, and, applying these elements of decision, adjudged that the "case was well tried by the court nisi, and its judgment should be affirmed." It was so ordered.

In its view of the Federal statute and the defense under it, the court erred. Seaboard Air Line R. Co. v. Horton, 233 U. S. 492, 58 L. ed. 1062, L.R.A.1915C, 1, 34 Sup. Ct. Rep. 635, Ann. Cas. 1915B, 475, 8 N. C. C. A. 834; Jacobs v. Southern R. Co. 241 U. S. 229, 60 L. ed. 970, 36 Sup. Ct. Rep. 588; Chesapeake & O. R. Co. v. De Atley, 241 U. S. 310, 60 L. ed. 1016, 36 Sup. Ct. Rep. 564; Erie R. Co. v. Purucker, 244 U. S. 320, 61 L. ed. 1166, 37 Sup. Ct. Rep. 629; Boldt v. Pennsylvania R. Co. 245 U. S. 441, 62 L. ed. 385, 38 Sup. Ct. Rep. 139.

[46] And the requirement of the act prevails over any state law. Seaboard Air Line Co. v. Horton, supra; Atchison, T. & S. F. R. Co. v. Harold, 241 U. S. 371, 60 L. ed. 1050, 36 Sup. Ct. Rep. 665; New York C. R. Co. v. Winfield, 244 U. S. 147, 61 L. ed. 1045, L.R.A. 1918C, 439, 37 Sup. Ct. Rep. 546, Ann. Cas. 1917D, 1139, 14 N. C. C. A. 680; New Orleans & N. E. R. Co. v. Harris, 247 U. S. 367, 62 L. ed. 1167, 38 Sup. Ct. Rep. 535.

Counsel for respondent, however, in

sists that the views of the supreme court | not be said to be wrong, in view of the upon the ruling of the assumption of risk general attitude of the courts toward claims are "of purely academic interest and of of exemption, adverted to by the state court, no practical importance" in the consid- and of the fact that a subsequent agreeeration of the legality of the verdict and ment shows that the parties concerned did not suppose that they had an irrevocable judgment in the trial court. That court, grant, and especially the fact that the state it is said, submitted the fact to the jury, Constitution in force in 1853 provided in and also submitted the relative contri- art. 8, § 1, that all general laws and special bution of Williams's negligence and the acts passed pursuant to that section might negligence of defendants to his injury. be altered or repealed. But this is an underestimate of the action of the trial court. The court was requested to instruct the jury that the effect of the assumption of risk by Williams incident to the use of the claw bar, Submitted October 21, 1920. Decided Noand the circumstances under which it was used, was to relieve defendants from liability "for the injury resulting there-the State of New York in and for the N ERROR to the Supreme Court of

from." The court refused the instruc

tion as it was requested, and amended it by adding thereto, "and such fact [the assumption of risk] will be considered by you in determining the amount of plaintiff's recovery, if any, under all of the instructions."

The refusal and modification were assigned as error, and the supreme court considered and decided, as we have seen, that the fact was of no determining im portance, and, if it existed, only constituted contributory negligence, and could operate only in reduction of the amount of recovery, not defeat recovery. This was error, as we have seen.

Judgment reversed and

cause re

[For other cases, see Appeal and Error, VIII. m, 1, in Digest Sup. Ct. 1908.]

[No. 63.]

vember 8, 1920.

County of Albany, in that state, to rethe Appellate Division of the Supreme view a judgment affirmed successively by Court, Third Department, and by the Court of Appeals, refusing to disturb an assessment of railway property for taxation. Affirmed.

See same case below, in supreme court, 179 App. Div. 951, 165 N. Y. Supp. 1106; in court of appeals, 224 N. Y. 187, 120

N. E. 155.

The facts are stated in the opinion.

Messrs. William L. Visscher and Lewis E. Carr submitted the cause for plaintiff in error:

All of the essential elements of an manded for further proceedings not in- executed contract are found in the facts consistent with this opinion.

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sion below ligations. A decision of the highest court of New York that the exemption from taxation above a specified sum, granted to the Troy Union Railroad Company by N. Y; Laws 1853. chap. 462, could be repealed without impairing contract obligations, can

in this case.

13 C. J. 237-245, 315, 318; Justice v. Lang, 42 N. Y. 497, 1 Am. Rep. 576; Dartmouth College v. Woodward, 4 Wheat. 518, 656-659, 4 L. ed. 629, 664.

A grant by the legislature of a state to a corporation, either in the act incorporating it or by other legislation, of a franchise, privilege, or exemption, followed by action of the corporation under or in reliance upon the grant so made, constitutes a contract, the obligation of which cannot be impaired by subsequent legislation.

Dartmouth College v. Woodward, 4 Wheat. 518, 627, 656, 4 L. ed. 629, 656, 664.

This principle has been repeatedly applied to statutes, the effect of which was to exempt property from taxation.

Carter, 52 Hun, 458, 5 N. Y. Supp. 507, People ex rel. Troy Union R. Co. v. affirmed in 117 N. Y. 625, 22 N. E. 1128; New Jersey v. Yard, 95 U. S. 104, 115Note. On error to state courts in 117, 24 L. ed. 352, 354, 355; Wilmingcases presenting questions of impair- ton & W. R. Co. v. Reid, 13 Wall. 264, ment of contract obligations-see note 20 L. ed. 568; Humphrey v. Pegues, 16 to Osborne v. Clark, 51 L. ed. U. S. 619. Wall. 244, 249, 21 L. ed. 326, 327; Pear

action, was engaged in tearing down a bridge on the line of the railroad, [44] and a defect in a claw bar which he was directed to use caused the bar to slip while he was attempting to draw a bolt; in consequence he lost his balance and fell to the ground, a distance of 12 feet. The defect, it is alleged, Williams did not know.

Negligence, however, was charged against him, and assumption of risk and contributory negligence.

He recovered a verdict in the sum of $5,000. Motions for new trial and arrest of judgment were denied and the case was appealed to the Kansas City court of appeals.

The facts, as recited by the court, are that Williams was twenty-one years old, and had been reared on a farm. He entered the service of the railroad as a common laborer in August, 1915, and worked for it until his injury in November of that year, his work being that of "helping build steel bridges and taking down old ones." He was ordered by the foreman in charge of the work to use a claw bar which was defective, in that the claws "had become so rounded and dull by long usage that they could not be made to grab the shank securely, and slipped from their hold when plaintiff (Williams) pressed downward on the handle, causing him to lose his balance and fall from the cap to the ground." The plaintiff stated that to discover the defect required an inspection of the underside of the tool, and that, in obeying the order of the foreman, he did not pause to make such inspection, but used the tool without any but casual inspec- | tion of its top surface, which did not reveal the defect.

sion to be in conflict with Fish v. Chicago, R. I. & P. R. Co. 263 Mo. 106, 123, 172 S. W. 340, Ann. Cas. 1916B, 147, 8 N. C. C. A. 538, it is without jurisdiction, and therefore orders said cause certified to the supreme court for its determination."

The supreme court, upon considering Fish v. Chicago, R. I. & P. R. Co. and other cases, decided that "it was the duty of the master to furnish the servant a reasonably safe claw bar with which to do the work. The failure to furnish that character of a claw bar was negligence upon the part of the master. If the defects were so glaring, and the claw bar so patently defective that an ordinarily prudent servant would not have used it, then its use under such circumstances was negligence upon the part of the servant, which negligence, under the rule in Missouri, would bar him from a recovery. But not so under the Federal statute." [272 Mo. 623, 200 S. W. 53.] In other words, the court held that Williams's assumption of the risk did not have the consequence assigned to it by the Kansas City court of appeals, but, if it existed, amounted in legal effect only to contributory negligence, and that such negligence, under the Federal statute, worked a reduction of damages, and not a defeat of the action, and, applying these elements of decision, adjudged that the "case was well tried by the court nisi, and its judgment should be affirmed." It was so ordered.

In its view of the Federal statute and the defense under it, the court erred. Seaboard Air Line R. Co. v. Horton, 233 U. S. 492, 58 L. ed. 1062, L.R.A.1915C, 1, 34 Sup. Ct. Rep. 635, Ann. Cas. 1915B, 475, 8 N. C. C. A. 834; Jacobs v. SouthThe railroad was engaged in interstate ern R. Co. 241 U. S. 229, 60 L. ed. 970, commerce, and the cause of action, under 36 Sup. Ct. Rep. 588; Chesapeake & the case as made, fell within the pur-O. R. Co. v. De Atley, 241 U. S. 310, 60 view of the Federal Employers' Liability Act.

The conclusion of the court was that "the defect in the claw bar was so obvious that the most cursory and superficial inspection would have disclosed it to the plaintiff." And further: "The risk was just as obvious as the [45] defect. This was a simple tool, which, in the course of use, would be expected to fall into such defective condition, and plaintiff must be held to have appreciated the danger and to have voluntarily assumed it."

The court reversed the judgment. It denied a motion for rehearing, but considered and adjudged "that, on account of one of the judges deeming the deci

L. ed. 1016, 36 Sup. Ct. Rep. 564; Erie R. Co. v. Purucker, 244 U. S. 320, 61 L. ed. 1166, 37 Sup. Ct. Rep. 629; Boldt v. Pennsylvania R. Co. 245 U. S. 441, 62 L. ed. 385, 38 Sup. Ct. Rep. 139.

[46] And the requirement of the act prevails over any state law. Seaboard Air Line Co. v. Horton, supra; Atchison, T. & S. F. R. Co. v. Harold, 241 U. S. 371, 60 L. ed. 1050, 36 Sup. Ct. Rep. 665; New York C. R. Co. v. Winfield, 244 U. S. 147, 61 L. ed. 1045, L.R.A. 1918C, 439, 37 Sup. Ct. Rep. 546, Ann. Cas. 1917D, 1139, 14 N. C. C. A. 680; New Orleans & N. E. R. Co. v. Harris, 247 U. S. 367, 62 L. ed. 1167, 38 Sup. Ct. Rep. 535.

Counsel for respondent, however, in

not be said to be wrong, in view of the general attitude of the courts toward claims of exemption, adverted to by the state court, and of the fact that a subsequent agreement shows that the parties concerned did not suppose that they had an irrevocable grant, and especially the fact that the state Constitution in force in 1853 provided in art. 8, § 1, that all general laws and special acts passed pursuant to that section might be altered or repealed.

sists that the views of the supreme court upon the ruling of the assumption of risk are "of purely academic interest and of no practical importance" in the consideration of the legality of the verdict and judgment in the trial court. That court, it is said, submitted the fact to the jury, and also submitted the relative contribution of Williams's negligence and the negligence of defendants to his injury. But this is an underestimate of the action of the trial court. The court was requested to instruct the jury that the effect of the assumption of risk by Williams incident to the use of the claw bar, Submitted October 21, 1920. Decided Noand the circumstances under which it was used, was to relieve defendants from liability "for the injury resulting therefrom." The court refused the instruc

tion as it was requested, and amended it by adding thereto, "and such fact [the assumption of risk] will be considered by you in determining the amount of plaintiff's recovery, if any, under all of the instructions."

The refusal and modification were assigned as error, and the supreme court considered and decided, as we have seen, that the fact was of no determining im portance, and, if it existed, only constituted contributory negligence, and could operate only in reduction of the amount of recovery, not defeat recovery. This was error, as we have seen.

[For other cases, see Appeal and Error, VIII. m, 1, in Digest Sup. Ct. 1908.]

[No. 63.]

vember 8, 1920.

IN ERROR to the Supreme Court of the State of New York in and for the

County of Albany, in that state, to review a judgment affirmed successively by the Appellate Division of the Supreme Court, Third Department, and by the Court of Appeals, refusing to disturb an assessment of railway property for taxation. Affirmed.

See same case below, in supreme court, 179 App. Div. 951, 165 N. Y. Supp. 1106; in court of appeals, 224 N. Y. 187, 120 N. E. 155.

The facts are stated in the opinion.

Messrs. William L. Visscher and Lewis E. Carr submitted the cause for plaintiff in error:

Judgment reversed and cause re- All of the essential elements of an manded for further proceedings not in- executed contract are found in the facts consistent with this opinion.

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in this case.

13 C. J. 237-245, 315, 318; Justice v.
Lang, 42 N. Y. 497, 1 Am. Rep. 576;
Dartmouth College V.
Wheat. 518, 656-659, 4 L. ed. 629, 664.
Woodward, 4

A grant by the legislature of a state to a corporation, either in the act incorporating it or by other legislation, of a franchise, privilege, or exemption, followed by action of the corporation under or in reliance upon the grant so made, constitutes a contract, the obligation of which cannot be impaired by subsequent legislation.

Dartmouth College v. Woodward, 4 Wheat. 518, 627, 656, 4 L. ed. 629, 656, 664.

This principle has been repeatedly applied to statutes, the effect of which was to exempt property from taxation.

ligations. A decision of the highest court of New York that the exemption from taxation above a specified sum, granted to the Troy Union Railroad Company by N. Y. Carter, 52 Hun, 458, 5 N. Y. Supp. 507, People ex rel. Troy Union R. Co. v. Laws 1853, chap. 462, could be repealed affirmed in 117 N. Y. 625, 22 N. E. 1128; without impairing contract obligations, canNew Jersey v. Yard, 95 U. S. 104, 115Note. On error to state courts in 117, 24 L. ed. 352, 354, 355; Wilmingcases presenting questions of impair- ton & W. R. Co. v. Reid, 13 Wall. 264, ment of contract obligations-see note 20 L. ed. 568; Humphrey v. Pegues, 16 to Osborne v. Clark, 51 L. ed. U. S. 619. | Wall. 244, 249, 21 L. ed. 326, 327; Pear

action, was engaged in tearing down a bridge on the line of the railroad, [44] and a defect in a claw bar which he was directed to use caused the bar to slip while he was attempting to draw a bolt; in consequence he lost his balance and fell to the ground, a distance of 12 feet. The defect, it is alleged, Williams did not know.

Negligence, however, was charged against him, and assumption of risk and contributory negligence.

He recovered a verdict in the sum of $5,000. Motions for new trial and arrest of judgment were denied and the case was appealed to the Kansas City court of appeals.

The facts, as recited by the court, are that Williams was twenty-one years old, and had been reared on a farm. He entered the service of the railroad as a common laborer in August, 1915, and worked for it until his injury in November of that year, his work being that of "helping build steel bridges and taking down old ones." He was ordered by the foreman in charge of the work to use a claw bar which was defective, in that the claws "had become so rounded and dull by long usage that they could not be made to grab the shank securely, and slipped from their hold when plaintiff (Williams) pressed downward on the handle, causing him to lose his balance and fall from the cap to the ground." The plaintiff stated that to discover the defect required an inspection of the underside of the tool, and that, in obeying the order of the foreman, he did not pause to make such inspection, but used the tool without any but casual inspec- | tion of its top surface, which did not reveal the defect.

sion to be in conflict with Fish v. Chicago, R. I. & P. R. Co. 263 Mo. 106, 123, 172 S. W. 340, Ann. Cas. 1916B, 147, 8 N. C. C. A. 538, it is without jurisdiction, and therefore orders said cause certified to the supreme court for its determination."

The supreme court, upon considering Fish v. Chicago, R. I. & P. R. Co. and other cases, decided that "it was the duty of the master to furnish the servant a reasonably safe claw bar with which to do the work. The failure to furnish that character of a claw bar was negligence upon the part of the master. If the defects were so glaring, and the claw bar so patently defective that an ordinarily prudent servant would not have used it, then its use under such circumstances was negligence upon the part of the servant, which negligence, under the rule in Missouri, would bar him from a recovery. But not so under the Federal statute." [272 Mo. 623, 200 S. W. 53.] In other words, the court held that Williams's assumption of the risk did not have the consequence assigned to it by the Kansas City court of appeals, but, if it existed, amounted in legal effect only to contributory negligence, and that such negligence, under the Federal statute, worked a reduction of damages, and not a defeat of the action, and, applying these elements of decision, adjudged that the "case was well tried by the court nisi, and its judgment should be affirmed." It was so ordered.

In its view of the Federal statute and the defense under it, the court erred. Seaboard Air Line R. Co. v. Horton, 233 U. S. 492, 58 L. ed. 1062, L.R.A.1915C, 1, 34 Sup. Ct. Rep. 635, Ann. Cas. 1915B, 475, 8 N. C. C. A. 834; Jacobs v. SouthThe railroad was engaged in interstate ern R. Co. 241 U. S. 229, 60 L. ed. 979, commerce, and the cause of action, under 36 Sup. Ct. Rep. 588; Chesapeake & the case as made, fell within the pur-O. R. Co. v. De Atley, 241 U. S. 310, 60 view of the Federal Employers' Liability L. ed. 1016, 36 Sup. Ct. Rep. 564; Erie Act. R. Co. v. Purucker, 244 U. S. 320, 61 L. ed. 1166, 37 Sup. Ct. Rep. 629; Boldt v. Pennsylvania R. Co. 245 U. S. 441, 62 L. ed. 385, 38 Sup. Ct. Rep. 139.

The conclusion of the court was that "the defect in the claw bar was so obvious that the most cursory and superficial inspection would have disclosed it to the plaintiff." And further: "The risk was just as obvious as the [45] defect. This was a simple tool, which, in the course of use, would be expected to fall into such defective condition, and plaintiff must be held to have appreciated the danger and to have voluntarily assumed it."

The court reversed the judgment. It denied a motion for rehearing, but considered and adjudged "that, on account of one of the judges deeming the deci-1

[46] And the requirement of the act prevails over any state law. Seaboard Air Line Co. v. Horton, supra; Atchison, T. & S. F. R. Co. v. Harold, 241 U. S. 371, 60 L. ed. 1050, 36 Sup. Ct. Rep. 665; New York C. R. Co. v. Winfield, 244 U. S. 147, 61 L. ed. 1045, L.R.A. 1918C, 439, 37 Sup. Ct. Rep. 546, Ann. Cas. 1917D, 1139, 14 N. C. C. A. 680; New Orleans & N. E. R. Co. v. Harris, 247 U. S. 367, 62 L. ed. 1167, 38 Sup. Ct. Rep. 535.

Counsel for respondent, however, in

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