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action; was engaged in tearing down a sion to be in conflict with Fish v. Chicago, bridge on the line of the railroad, [44] | R. I. & P. R. Co. 263 Mo. 106, 123, 172 and a defect in a claw bar which he was S. W. 340, Ann. Cas. 1916B, 147, 8 N. directed to use caused the bar to slip C. C. A. 538, it is without jurisdiction, while he was attempting to draw a bolt; and therefore orders said cause certified in consequence he lost his balance and to the supreme court for its determinafell to the ground, a distance of 12 feet. tion." The defect, it is alleged, Williams did The supreme court, upon considering not know.

Fish v. Chicago, R. I. & P. R. Co. and Negligence, however, charged other cases, decided that "it was the duty against him, and assumption of risk and of the master to furnish the servant a contributory negligence.

reasonably safe claw bar with which to He recovered a verdict in the sum of do the work. The failure to furnish $5,000. Motions for new trial and ar- that character of a claw bar was neglirest of judgment were denied and the gence upon the part of the master. If case was appealed to the Kansas City the defects were so glaring, and the claw court of appeals.

bar so patently defective that an ordiThe facts, as recited by the court, are narily prudent servant would not have that Williams was twenty-one years old, used it, then its use under such circumand had been reared on a farm. He stances was negligence upon the part of entered the service of the railroad as a the servant, which negligence, under the common laborer in August, 1915, and rule in Missouri, would bar him from a worked for it until his injury in Novem- recovery. But not so under the Federal ber of that year, his work being that of statute.” [272 Mo. 623, 200 S. W. 53.] “helping build steel bridges and taking In other words, the court held that Wildown old ones.” He was ordered by the liams's assumption of the risk did not foreman in charge of the work to use a have the consequence assigned to it by claw bar which was defective, in that the the Kansas City court of appeals, but, if claws “had become so rounded and dull it existed, amounted in legal effect only by long usage that they could not be to contributory negligence, and that such made to grab the shank securely, and negligence, under the Federal statute, slipped from their hold when plaintiff worked a reduction of damages, and not (Williams) pressed downward on the a defeat of the action, and, applying handle, causing him to lose his balance these elements of decision, adjudged that and fall from the cap to the ground.” the "case was well tried by the court

The plaintiff stated that to discover nisi, and its judgment should be afthe defect required an inspection of the firmed.” It was so ordered. underside of the tool, and that, in obey- In its view of the Federal statute and ing the order of the foreman, he did not the defense under it, the court erred. pause to make uch inspection, but used Seaboard Air Line R. v. Horton, 233 the tool without any but casual inspec-U. S. 492, 58 L. ed. 1062, L.R.A.1915C, 1, tion of its top surface, which did not re- 34 Sup. Ct. Rep. 635, Ann. Cas. 1915B, veal the defect.

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-0. 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. The conclusion of the court was that ed. 1166, 37 Sup. Ct. Rep. 629; Boldt "The defect in the claw bar was so ob- v. Pennsylvania R. Co. 245 U. S. 441, vious that the most cursory and super- | 62 L. ed. 385, 38 Sup. Ct. Rep. 139. ficial inspection would have disclosed it [16] And the requirement of the act to the plaintiff.” And further: "The prevails over any state law. Seaboard risk was just as obvious as the [45] Air Line Co. v. Horton, supra; Atchison, defect. This was a simple tool, which, T. & S. F. R. Co. v. Harold, 241 U. S. in the course of use, would be expected | 371, 60 L. ed. 1050, 36 Sup. Ct. Rep. to fall into such defective condition, 665; New York C. R. Co. v. Winfield, and plaintiff must be held to have ap- 244 U. S. 147, 61 L. ed. 1045, L.R.A. preciated the danger and to have volun- 1918C, 439, 37 Sup. Ct. Rep. 546, Ann. tarily assumed it."

Cas. 1917D, 1139, 14 N. C. C. A. 680; The court reversed the judgment. It New Orleans & N. E. R. Co. v. Harris, denied a motion for rehearing, but con- | 217 U. S. 367, 62 L. ed. 1167, 38 Sup. Ct. sidered and adjudged "that, on account Rep. 535. of one of the judges deeming the deci-| Counsel for respondent, however, in

1

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 not suppose that they had an irrevocable

ment shows that the parties concerned did 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 ac

[For other cases, see Appeal and Error, VIII.

m, 1, in Digest Sup. Ct. 1908.]
tion of the trial court. The court was
requested to instruct the jury that the

[No. 63.]
effect of the assumption of risk by Wil-
liams incident to the use of the claw bar, Submitted October 21, 1920. Decided No.
and the circumstances under which it

vember 8, 1920. was used, was to relieve defendants from liability for the injury resulting there- IN ERROR to the Supreme Court of

of from.” The court refused the instruction as it was requested, and amended it by view a judgment affirmed successively by

County of Albany, in that state, to readding thereto, "and such fact [the assumption of risk] will be considered by Court, Third Department, and by the

the Appellate Division of the Supreme you in determining the amount of plaintiff's recovery, if any, under all of the Court of Appeals, refusing to disturb instructions."

an assessment of railway property for The refusal and modification were as

taxation. Affirmed. signed as error, and the supreme court

See same case below, in supreme court, considered and decided, as we have seen, in court of appeals, 224 N. Y. 187, 120

179 App. Div. 951, 165 N. Y. Supp. 1106; that the fact was of no determining im

N. E. 155.
portance, and, if it existed, only consti-
tuted contributory negligence, and could

The facts are stated in the opinion. operate only in reduction of the amount Messrs. William L. Visscher and Lewis of recovery, not defeat recovery. This E. Carr submitted the cause for plainwas error, as we have seen.

tiff in error: Judgment reversed and

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

in this case.

13 C. J. 237–245, 315, 318; Justice v. Lang, 42 N. Y. 497, 1 Am. Rep. 576;

Dartmouth College v. (47) PEOPLE OF THE STATE OF NEW Wheat. 518, 656-659, 4 L. ed. 629, 664.

v. Woodward, 4 YORK ON THE RELATION OF TROY UNION RAILROAD COMPANY, Piff.

A grant by the legislature of a state in Err.,

to a corporation, either in the act incor

porating it or by other legislation, of a G. FRANK MEALY, George Spence, Jr., franchise, privilege, or exemption, folGeorge B. Walker, and Silas Downs, Jr., lowed by action of the corporation under as Assessors, and Hiram W. Gordinier, as or in reliance upon the grant so made, Comptroller, of the City of Troy, State of constitutes a contract, the obligation of New York,

which cannot be impaired by subsequent

legislation. (See S. C. Reporter's ed. 47-50.)

Dartmouth College v. Woodward, 4
Error 'to state court following deci- Wheat. 518, 627, 656, 4 L. ed. 629, 656,

sion below impairing contract ob-664.
ligations.

This principle has been repeatedly ap-
A decision of the highest court of plied to statutes, the effect of which was
New York that the exemption from taxa- to exempt property from taxation.
tion above a specified sum, granted to the

People ex rel. Troy Union R. Co. v.
Troy Union Railroad Company by N. Y; Carter, 52 Hun, 458, 5 N. Y. Supp. 507,
Laws 1853, chap. 462, could be repealed affirmed in 117 N. Y. 625, 22 N. E. 1128;
without impairing contract obligations, can-

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. I Wall. 214, 219, 21 L. ed. 326, 327; Pear

cause

re

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action, was engaged in tearing down a sion to be in conflict with Fish v. Chicago, bridge on the line of the railroad, [44] R. I. & P. R. Co. 263 Mo. 106, 123, 172 and a defect in a claw bar which he was S. W. 340, Ann. Cas. 1916B, 147, 8 N. directed to use caused the bar to slip C. C. A. 538, it is without jurisdiction, while he was attempting to draw a bolt; and therefore orders said cause certified in consequence he lost his balance and to the supreme court for its determinafell to the ground, a distance of 12 feet. tion.” The defect, it is alleged, Williams did The supreme court, upon considering not know.

Fish v. Chicago, R. I. & P. R. Co. and Negligence, however, was charged other cases, decided that "it was the duty against him, and assumption of risk and of the master to furnish the servant a contributory negligence.

reasonably safe claw bar with which to He recovered a verdict in the sum of do the work. The failure to furnish $5,000. Motions for new trial and ar- that character of a claw bar was neglirest of judgment were denied and the gence upon the part of the master. If case was appealed to the Kansas City the defects were so glaring, and the claw court of appeals.

bar so patently defective that an ordiThe facts, as recited by the court, are narily prudent servant would not have that Williams was twenty-one years old, used it, then its use under such circumand had been reared on a farm. He stances was negligence upon the part of entered the service of the railroad as a the servant, which negligence, under the common laborer in August, 1915, and rule in Missouri, would bar him from a worked for it until his injury in Novem- recovery. But not so under the Federal ber of that year, his work being that of statute." [272 Mo. 623, 200 S. W. 53.] "helping build steel bridges and taking In other words, the court held that Wildown old ones." He was ordered by the liams's assumption of the risk did not foreman in charge of the work to use a have the consequence assigned to it by claw bar which was defective, in that the the Kansas City court of appeals, but, if claws "had become so rounded and dull it existed, amounted in legal effect only by long usage that they could not be to contributory negligence, and that such made to grab the shank securely, and negligence, under the Federal statute, slipped from their hold when plaintiff worked a reduction of damages, and not (Williams) pressed downward on the a defeat of the action, and, applying handle, causing him to lose his balance these elements of decision, adjudged that and fall from the cap to the ground.” the "case was well tried by the court

The plaintiff stated that to discover nisi, and its judgment should be afthe defect required an inspection of the firmed.” It was so ordered. underside of the tool, and that, in obey- In its view of the Federal statute and ing the order of the foreman, he did not the defense under it, the court erred. pause to make such inspection, but used Seaboard Air Lin R. Co. v. Horton, 233 the tool without any but casual inspec- | U. S. 492, 58 L. ed. 1062, L.R.A.1915C, 1, tion of its top surface, which did not re- 34 Sup. Ct. Rep. 635, Ann. Cas. 1915B, veal the defect.

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-0. R. Co. v. De Atley, 241 V. S. 310, 60 view of the Federal Employers' Liability L. ed. 1016, 36 Sup. Ct. Rep. 561; Erie Act.

R. Co. v. Purucker, 244 U. S. 320, 61 L. The conclusion of the court was that ed. 1166, 37 Sup. Ct. Rep. 629; Boldt "The defect in the claw bar was so ob- v. Pennsylvania R. Co. 245 U. S. 441, vious that the most cursory and super-62 L. ed. 385, 38 Sup. Ct. Rep. 139. ficial inspection would have disclosed it (46] And the requirement of the act to the plaintiff.” And further: "The prevails over any state law. Seaboard risk was just as obvious as the [45] Air Line Co. v. Horton, supra; Atchison, defect. This was a simple tool, which, T. & S. F. R. Co. v. Ilarold, 241 U. S. in the course of use, would be expected 371, 60 L. ed. 1050, 36 Sup. Ct. Rep. to fall into such defective condition, 665; New York C. R. Co. v. Winfield, and plaintiff must be held to have ap- 244 U. S. 147, 61 L. ed. 1045, L.R.A. preciated the danger and to have volun- 1918C, 439, 37 Sup. Ct. Rep. 546, Ann. tarily assumed it."

Cas. 1917D, 1139, 14 N. C. C. A. 680; The court reversed the judgment. It New Orleans & N. E. R. Co. v. Harris, denied a motion for rehearing, but con- 217 U. S. 367, 62 L. ed. 1167, 38 Sup. Ct. sidered and adjudged "that, on account Rep. 535. of one of the judges deeming the deci- Counsel for respondent, however, in

sists that the views of the supreme courty 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 agree. eration of the legality of the verdict and not suppose that they had an irrevocable

ment shows that the parties concerned did 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 inight negligence of defendants to his injury. be altered or repealed. But this is an underestimate of the ac

[For other cases, see Appeal and Error, VIII.

m, 1, in Digest Sup. Ct. 1908.) tion of the trial court. The court was requested to instruct the jury that the

[No. 63.] 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

vember 8, 1920. was used, was to relieve defendants from liability for the injury resulting there- IN ERROR to the Supreme Court of "

the State of New York in and for the from.” The court refused the instruction as it was requested, and amended it by County of Albany, in that state, to readding thereto, "and such fact [the as

view a judgment affirmed successively by sumption of risk] will be considered by the Appellate Division of the Supreme you in determining the amount of plain-Court, Third Department, and by the tiff's recovery, if any, under all of the Court of Appeals, refusing to disturb instructions."

an assessment of railway property for The refusal and modification were as

taxation. Affirmed.

See same case below, in supreme court, signed as error, and the supreme court considered and decided, as we have seen,

179 App. Div. 951, 165 N. Y. Supp. 1106; that the fact was of no determining im- in court of appeals, 224 N. Y. 187, 120

N. E. 155. portance, and, if it existed, only consti

The facts are stated in the opinion. tuted contributory negligence, and could operate only in reduction of the amount Messrs. William L. Visscher and Lewis of recovery, not defeat recovery. This E. Carr submitted the cause for plainwas error, as we have seen.

tiff in error: Judgment reversed and

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

in this case.

13 C. J. 237–245, 315, 318; Justice v. Lang, 42 N. Y. 497, 1 Am. Rep. 576;

Dartmouth College Woodward, 4 [47] PEOPLE OF THE STATE OF NEW

YORK ON THE RELATION OF TROY Wheat. 518, 656-659, 4 L. ed. 629, 664. UNION RAILROAD COMPANY, Piff.

A grant by the legislature of a state in Err.,

to a corporation, either in the act incor

porating it or by other legislation, of a G. FRANK MEALY, George Spence, Jr., franchise, privilege, or exemption, folGeorge B. Walker, and Silas Downs, Jr., | lowed by action of the corporation under as Assessors, and Hiram W. Gordinier, as or in reliance upon the grant so made, Comptroller, of the City of Troy, State of constitutes a contract, the obligation of New York,

which cannot be impaired by subsequent

legislation. (See S. C. Reporter's ed. 47-50.)

Dartmouth College v. Woodward, 4 Error 'to state court following deci- | Wheat. 518, 627, 656, 4 L. ed. 629, 656,

sion below impairing contract ob- | 661. ligations.

This principle has been repeatedly apA decision of the highest court of plied to statutes, the effect of which was New York that the exemption from taxa- to exempt property from taxation. tion 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 without impairing contract obligations, can- 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, 10 to Osborne v. Clark, 51 L. ed. U. S. 619. I Wall. 244, 249, 21 L. ed. 326, 327; Pear

cause

re

v.

V.

a

mere

87.

sall v. Great Northern R. Co. 161 U. S., tent, the conduct of the parties under a 646, 662, 40 L. ed. 838, 843, 16 Sup. Ct. contract, long continued, becomes and Rep. 705; Wright v. Georgia R. & Bkg. is a practical construction of it, for it Co. 216 Ú. S. 420, 54 L. ed. 544, 30 Sup. is the best evidence of what the parties Ct. Rep. 242; Home of the Friendless intended. v. Rouse, 8 Wall. 430, 437, 19 L. ed. Nicoll v. Sands, 131 N. Y. 24, 29 N. 495, 497.

E. 818; Woolsey v. Funke, 121 N. Y. This rule applies to municipal action 92, 24 N. E. 191; Brooklyn L. Ins. Co. approved by the state.

v. Dutcher, 95 U. S. 269, 273, 24 L. ed. 13 C. J. 994, 995; Murray v. Charles- 410, 411; Carthage Tissue Paper Mills ton, 96 U. S. 432, 444, 24 L. ed. 760, 762; v. Carthage, 200 N. Y. 14, 93 N. E. 60. Louisville v. Cumberland Teleph. Co. 224 U. S. 649, 664, 56 L. ed. 934, 940, the cause for defendant in error.

Mr. George B. Wellington submitted

Mr. 32 Sup. Ct. Rep. 572; Grand Trunk Thomas H. Guy was on the brief: Western R. Co. v. South Bend, 227 U.

The exemption statute was S. 544, 57 L. ed. 633, 44 L.R.A.(N.S.) 405, 33 Sup. Ct. Rep. 303; Mercantile gratuity; and N. Y. Laws 1909, chap. Trust & D. Co. v. Columbus, 203 U. s. 201, the repealing act, is valid.

Christ Church v. Philadelphia County, 311, 320, 51 L. ed. 198, 202, 27 Sup. Ct. 24 How. 300, 16 L. ed. 602; People ex Rep. 83; New Orleans Gaslight Co. v. rel. Davies v. Tax & A. Comrs. 47 N. Y. Louisiana Light & H. P. & Mfg. Co. 501;

Tucker v. Ferguson, 22 Wall. 527, 115 U. S. 650, 662–665, 29 L. ed. 516, 22 . ed. 805; West Wisconsin R. Co. 521, 522, 6 Sup. Ct. Rep. 252;. Detroit v. Trempealeau County, 93 U. S. 595, United R. Co. v. Michigan, 242 U. S. 23 L. ed. 814; Rochester v. Rochester 238, 247,249, 253, 61 L. ed. 268, 273- R. Co. 182 N.'Y. 99, 70 L.R.A. 773, 74 275, P.U.R.1917B, 1010, 37 Sup. Ct. Rep. IN. E. 953, 205 U. S. 236, 51 L. ed. 784,

27 Sup. Ct. Rep. 469. The Act of 1853 was not one coming within the reservation contained in N. be construed to be a part of the orig

Even though the Act of 1853 should Y. Const. art. 8, § 1, which was the only inal charter granted to the Troy Union general reservation therein contained.

Railroad Company, nevertheless the Atty. Gen. v. North America L. Ins.

legislature has the power to repeal it. Co. 82 N. Y. 182.

Union Pass. R. Co. v. Philadelphia, The intent of the city of Troy is to 101 U. S. 528, 25 L. ed. 912; People ex be ascertained from the language used, rel. Cooper Union v. Gass, 196 N. Y. 323, the surrounding circumstances, and the 123 Am. St. Rep. 549, 83 N. E. 64, 13 object the parties had in view. Maloney v. Iroquois Brewing Co. 173 Union R. Co. v. Carter, 52 Hun, 458, 5

Ann. Cas. 678; People ex rel. Troy N. Y. 310, 66 N. E. 19; Gillett v. Bank

N. Y. Supp. 507. of America, 160 N. Y, 555, 55 N. E. 292; Schoonmaker v. Hoyt, 148 N. Y. 431, 42 [48] Mr. Justice Holmes delivered N. E. 1059.

the opinion of the court: The intent of the parties is to be as- This was a proceeding in the supreme certained in the first place from the lan- court of New York, seeking by certiorari guage used. If the words are plain and to review and set aside an assessment of free from ambiguity they are, in the city taxes upon the relator's property at absence of something showing a differ- a valuation of $1,000,000; the relator conent sense, to have their ordinary mean- tending that it had a contract by virtue of ing.

which the city of Troy and the state were Dwight v. Germania L. Ins. Co. 103 limited to a valuation of $30,000 for the N. Y. 346, 57_ Am. Rep. 729, 8 N. E. purposes of the tax. A referee, a single 654; Gans v. Ætna L. Ins. Co. 214 N. Y. judge, the appellate division of the su330, L.R.A.1915F, 703, 108 N. E. 443. preme court, and the court of appeals suc

If there is doubt or uncertainty from cessively have decided against the relator's the language used, reference may be had claim, but it brings the case here on the to the circumstances connected with and ground that an attempt to repeal the statsurrounding the making and execution ute upon which it bases its immunity imof the instrument and the object the pairs the obligation of contracts and is parties had in view.

void. 88 Misc. 649, 152 N. Y. Supp. 435, Maloney v. Iroquois Brewing Co. 179 App. Div. 951, 165 N. Y. Supp. 1106, supra; Gillett v. Bank of America, 160 224 N. Y. 187, 120 N. E. 155. N. Y. 555, 55 N. E. 292; Schoonmaker The case is this: In 1851 it was desired v. Hoyt, supra.

to establish a common terminal station and Again, if there is doubt as to the in- I common tracks passing through a portion

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