company, shall be made by such com- | Ct. Rep. 450; Morris & E. R. Co. v. pany at its own expense. The order Orange, 63 N. J. L. 253, 43 Atl. 730, 47 made in pursuance of the statute re- Atl. 363; New York & N. E. R. Co. v. quires such changes. Neither the stat- Bristol, 62 Conn. 527, 26 Atl. 122, 151 ute nor the order is, on this account, U. S. 556, 38 L. ed. 269, 14 Sup. Ct. Rep. obnoxious to the due process clause of 437; Waterbury v. Central Vermont R. the Constitution. Co. 93 Vt. 461, 108 Atl. 423.

Minneapolis & St. L. R. Co. v. Emmons, 149 U. S. 364, 37 L. ed. 769, 13 Sup. Ct. Ren. 870; Chicago, B. & Q. R. Co. v. Nebraska, 170 U. S. 57, 42 L. ed. 948, 18 Sup. Ct. Rep. 513; Northern P. R. Co. v. Minnesota, 208 U. S. 583, 52 L. ed. 630, 28 Sup. Ct. Rep. 341; Texas & N. O. R. Co. v. Miller, 221 U. S. 408, 55 L. ed. 789, 31 Sup. Ct. Rep. Smith v. Alabama, 124 U. S. 465, 31 534; Denver & R. G. R. Co. v. Denver, L. ed. 508, 1 Inters. Com. Rep. 804, 250 U. S. 241, 63 L. ed. 958, 39 Sup. 18 Sup. Ct. Rep. 564; Nashville, C. & St.

L. R. Co. v. Alabama, 128 U. S. 96, 32
L. ed. 352, 2 Inters. Com. Rep. 238, 9
Sup. Ct. Rep. 18; Hennington v. Georgia,
163 U. S. 299, 41 L. ed. 166, 16 Sup. Ct.
Rep. 1086; New York, N. H. & H. R.
Co. v. New York, 165 U. S. 628, 41 L.
ed. 853, 17 Sup. Ct. Rep. 418; Chicago,
M. & St. P. R. Co. v. Solan, 169 U. S.
133, 42 L. ed. 688, 18 Sup. Ct. Rep.
289; Chicago, R. I. & P. R. Co. v.
Arkansas, 219 U. S. 453, 55 L. ed. 290,
31 Sup. Ct. Rep. 275; Minnesota Rate
Cases (Simpson v. Shepard) 230 U. S.
350, 57 L. ed. 1511, 48 L.R.A. (N.S.)
1151, 33 Sup. Ct. Rep. 729, Ann. Cas.
1916A, 18; South Covington & C. Street
R. Co. v. Covington, 235 U. S. 537, 59
L. ed. 355, L.R.A.1915F, 792, P.U.R.
1915A, 231, 35 Sup. Ct. Rep. 158; St.
Louis, I. M. & S. R. Co. v. Arkansas,
240 U. S. 518, 69 L. ed. 776, 36 Sup. Ct.
Rep. 443; Vandalia R. Co. v. Public
Service Commission, 242 U. S. 255, 61
L. ed. 276, P.U.R.1917B, 1004, 37 Sup.
Ct. Rep. 93; South Covington & C.
Street R. Co. v. Kentucky, 252 U. S.
399, 64 L. ed. 631, 40 Sup. Ct. Rep. 378.
The police power of the state is, under
the Constitution, when exerted in the
interest of public safety, unlimited, ex-
cept by the requirement that the exer-
cise thereof be not merely capricious
and wanton. Neither the Grade Cross-
ing Elimination Act nor the order made
in pursuance thereof is, in any aspect,
capricious or wanton.

Co

v. Nebraska, 170 U. S. 57, 42 L. ed. 948, 18 Sup. Ct. Rep. 513.

It does not follow that an exercise of the police power of the state is limited by a requirement that compensation be made for such changes when exerted in the interest of public safety.

St. Louis & S. F. R. Co. v. Fayetteville, 75 Ark. 534, 87 S. W. 1174; Atlantic Coast Line R. Co. v. Goldsboro, 232 U. S. 548, 58 L. ed. 721, 34 Sup. Ct. Rep. 364.

There is a fundamental distinction between the police power exerted in regulation of rates exacted in the conduct of enterprises affected with a public interest and the police power exerted in the interest of public safety.

Atlantic Coast Line R. Co. v. North Carolina Corp. Commission, 206 U. S. 1, 26, 51 L. ed. 933, 945, 27 Sup. Ct. Rep. 585, 11 Ann. Cas. 398; Missouri P. R. Co. v. Kansas, 216 U. S. 262, 278, 54 L. ed. 472, 479, 30 Sup. Ct. Rep. 330; Detroit v. Detroit Citizens' Street R. Co. 184 U. S. 368, 382, 46 L. ed. 592, 605, 22 Sup. Ct. Rep. 410; Home Teleph. & Teleg. Co. v. Los Angeles, 211 U. S. 265, 53 L. ed. 176, 29 Sup. Ct. Rep. 50.

Mr. Justice Holmes delivered the opinion of the court:

These are writs of error brought by parties interested in an order of the Board of Public Utility Commissioners of New Jersey, dated April 20, 1915, directing a change in fifteen places in the city of Paterson, where the Erie Railroad crosses that number of streets at now grade. The order was reviewed on writs of certiorari and affirmed by the supreme court, and on appeal by the court of 89 N. J. L. 57, 24, errors and appeals. 98 Atl. 13, 28, 90 N. J. L. 672, 673, 714, 729, 677, 694, 103 Atl. 1052, 1053, 1055, 1051.

New York & N. E. R. Co. v. Bristol, 151 U. S. 556, 38 L. ed. 269, 14 Sup. Ct. Rep. 437; Erie R. Co. v. Williams, 233 U. S. 685, 58 L. ed. 1155, 51 L.R.A. (N.S.) 1097, 34 Sup. Ct. Rep. 761; Washington ex rel. Oregon R. & Nav. Co. v. Fairchild, 224 U. S. 510, 56 L. ed. 863, 32 Sup. Ct. Rep. 535; Health Dept. v. Trinity Church, 145 N. Y. 32, The Erie Railroad Company 27 L.R.A. 710, 45 Am. St. Rep. 579, 39 N. E. 833; Woodruff v. New York & made two applications to the supreme N. E. R. Co. 59 Conn. 63, 20 Atl. 17; court, the second being based upon a rePennsylvania R. Co. v. Ewing, 241 Pa. fusal by the board to grant a rehearing of 581, 49 L.R.A.(N.S.) 977, 88 Atl. 775, its order. Accordingly it has two writs Ann. Cas. 1915B, 157; Chicago & A. R. of error here. [408] But the second Co. v. Tranbarger, 238 U. S. 67, 59 L. adds nothing to the first, as we could not ed. 1204, 35 Sup. Ct. Rep. 678; Mis- say that the board unreasonably resouri P. R. Co. v. Kansas, 216 U. S. 262, fused further delay. Those of the other 54 L. ed. 472, 30 Sup. Ct. Rep. 330; parties are to the judgments affirming Sullivan v. Shreveport, 251 U. S. 169, the original order of the board. The 64 L. ed. 205, 40 Sup. Ct. Rep. 102; Erie Railroad was ordered to make the change by carrying fourteen of the Milwaukee Electric R. & Light Co. v. Wisconsin, 252 U. S. 190, 64 L. ed. 476, crossings under, and one, at Madison 10 A.L.R. 892, 40 Sup. Ct. Rep. 306; avenue, over, the railroad. It will also Atlantic Coast Line R. Co. v. North have to bear the cost, subject to a charge Carolina Corp. Commission, 206 U. S. to the Public Service Railway Company, 1, 51 L. ed. 933, 27 Sup. Ct. Rep. 585, of 10 per centum of the cost of chang 11 Ann. Cas. 398; Chicago, B. & Q. R. ling three crossings used by its road.

254 U. S.

The most important questions arise in the Erie Railroad Company's case, and we take that up first.

abolish existing grade crossings, but also to build and maintain suitable bridges or viaducts to carry highways, newly laid out, over their tracks, or to carry their tracks over such highways." Missouri P. R. Co. v. Omaha, 235 U. S. 121, 59 L. ed. 157, 35 Sup. Ct. Rep. 82; Northern P. R. Co. v. Puget Sound & W. H. R. Co. 250 U. S. 332, 63 L. ed. 1013, 39 Sup. Ct. Rep. 474. For although the statement is said to be explained as a matter of state law by the previous decisions in Minnesota, it is made without reference to those decisions or to any local rule; and, moreover, the intimation of the judgment in the present case is that, whatever may have been the earlier rulings, the law of New Jersey now adopts the same view.

The order was made under an Act of March 12, 1913, chap. 57, P. L. 1913, p. 91, which is construed by the state courts to authorize it, subject to the constitutional questions to be dealt with here. The Erie Railroad's line in Paterson is over tracks originally belonging to the president and directors of the Paterson & Hudson River Railroad Company and the Paterson & Ramapo Railroad Company, but now held by the Erie Railroad, by assignment of perpetual leases upon the terms that if, in any unforeseen way, the leases terminate, the value of erections and improvements must be repaid by the lessors. They, however, are small corporations having no assets except their roads and the rentals received from the Erie Company. The leases were ratified by an Act of March 14, 1853, providing that they should not be held to confer any privilege or right not granted to the lessors by their charters. It is admitted that the statute must be taken to impose the duty of making the changes upon the company operating the road, the plaintiff in error, which is an interstate road. It put in evidence that it did not have assets sufficient to make the changes, at least without interfering with the proper develop-flicting ment of its interstate commerce, and also contended that the whole evidence did not justify the finding of the board that the crossings were dangerous to public safety, but at most showed that [409] the change would be a public convenience. It is said that the order must be reasonable to be upheld, and that it is not reasonable to require an expenditure for such a purpose of over $2,000,000 from a company that has not more than $100,000 available, and that the order and the statute, when construed to justify it, not only interfere unwarrantably with interstate commerce, and impair the obligations of contracts, but take the Erie Company's property without due process of law.

But it is argued that the order is unreasonable in the circumstances to which we have adverted, the principle applied to the regulation of public service corporations being invoked. Mississippi R. Commission v. Mobile & O. R. Co. 244 U. S. 388, 391, 61 L. ed. 1216, 1219, 37 Sup. Ct. Rep. 602; Chicago, [410] B. & Q. R. Co. v. Railroad Commission, 237 U. S. 220, 59 L. ed. 926, P.U.R.1915C, 309, 35 Sup. Ct. Rep. 560. But the extent of the states' power varies in different cases from absolute to qualified, somewhat as the privilege in respect of inpecuniary damage varies. The power of the state over grade crossings derives little light from cases on the power to regulate trains.

Grade crossings call for a necessary adjustment of two conflicting interests,— that of the public using the streets, and that of the railroads and the public using them. Generically the streets represent the more important interest of the two. There can be no doubt that they did when these railroads were laid out, or that the advent of automobiles has given them an additional claim to consideration. They always are the necessity of the whole publie, which the railroads, vital as they are, hardly can be called to the same extent. Being places to which the public is inMost of the streets concerned were laid vited, and that it necessarily frequents, out later than the railroads, and this fact the state, in the care of which this interis relied upon, so far as it goes, as an est is, and from which, ultimately, the additional reason for denying the power railroads derive their right to occupy the of the state to throw the burden of this land, has a constitutional right to insist improvement upon the railroad. That is that they shall not be made dangerous to the fundamental question in the case. It the public, whatever may be the cost to might seem to be answered by the sum- the parties introducing the danger. That mary of the decisions given in Chicago, is one of the most obvious cases of the M. & St. P. R. Co. v. Minneapolis, 232 U. S. 430, 438, 58 L. ed. 671, 674, 34 Sup. Ct. Rep. 400: "It is well settled that railroad corporations may be required, at their own expense, not only to

police power; or, to put the same proposition in another form, the authority of the railroads to project their moving masses across thoroughfares must be taken to be subject to the implied limitation that it

may be cut down whenever and so far as the safety of the public requires. It is said that if the same requirement were made for the other grade crossings of the road, it would soon be bankrupt. That the states might be so foolish as to kill a goose that lays golden eggs for them has no bearing on their constitutional rights. If it reasonably can be said that safety requires the change, it is for them to say whether they will insist upon it, and neither prospective bankruptcy [411] nor engagement in interstate commerce can take away this fundamental right of the sovereign of the soil. Denver & R. G. R. Co. v. Denver, 250 U. S. 241, 246, 63 L. ed. 958, 962, 39 Sup. Ct. Rep. 450. To engage in interstate commerce the railroad must get on to the land; and, to get on to it, must comply with the conditions imposed by the state for the safety of its citizens. Contracts made by the road are made subject to the possible exercise of the sovereign right. Denver & R. G. R. Co. v. Denver, 250 U. S. 241, 244, 63 L. ed. 958, 961, 39 Sup. Ct. Rep. 450; Union Dry Goods Co. v. Georgia Public Service Corp. 248 U. S. 372, 63 L. ed. 309, 9 A.L.R. 1420, P.U.R.1919C, 60, 39 Sup. Ct. Rep. 117; Louisville & N. R. Co. v. Mottley, 219 U. S. 467, 55 L. ed. 297, 34 L.R.A.(N.S.) 671, 31 Sup. Ct. Rep. 265; Northern P. R. Co. v. Minnesota, 208 U. S. 583, 52 L. ed. 630, 28 Sup. Ct. Rep. 341; Manigault v. Springs, 199 U. S. 473, 480, 50 L. ed. 274, 278, 26 Sup. Ct. Rep. 127. If the burdens imposed are so great that the road cannot be run at a profit, it can stop, whatever the misfortunes the stopping may produce. Brooks-Scanlon Co. v. Railroad Commis- | sion, 251 U. S. 396, 64 L. ed. 323, P.U.R. 1920C, 579, 40 Sup. Ct. Pp. 183. Intelligent self-interest should lead to a careful consideration of what the road is able to do without ruin, but this is not a constitutional duty. In the opinion of the courts below the evidence justified the conclusion of the board that the expense would not be ruinous. Many detail: as to the particular situation of this road are disposed of without the need of fur ther mention by what we have said thus far.

The plaintiff in error discusses with considerable detail the effect of the But its changes upon private sidings. rights in respect of these are at least no greater than those in respect of the main line, and are covered by the preceding discussion. So are the objections that if the leases ever are terminated, it has no chance of being repaid the value of its improvements, because of the smallness of

the lessor corporations. They would have this property in that event, and it would be subject to their obligation; but the answer to the complaint of the plaintiff in error in all its forms is that which we have made. Whatever the cost, it may be required by New Jersey not to imperil [412] the highways if it does business there. We agree with the decisions below that, as the railroad company might have been charged with the whole expense, the fact that no more than 10 per centum of the cost of three crossings is thrown upon a street railway company is a matter of which it cannot complain.

We

If we could see that the evidence plainly did not warrant a finding that the particular crossings were dangerous, there might be room for the argument that the order was so unreasonable as to be void. The number of accidents shown was small, and if we went upon that alone we well might hesitate. But the situation is one that always is dangerous. The board must be supposed to have known the locality, and to have had an advantage similar to that of a judge who sees and hears the witnesses. The courts of the state have confirmed its judgment. The tribunals were not bound to await a collision that might cost the road a sum comparable to the cost of the change. If they were reasonably warranted in their conclusion, their judgment must stand. cannot say that they were not. At some crossings the danger was less than at others, but it was necessary, or at least prudent, to proceed on a general plan. Upon the whole matter, while it is difficult to avoid the apprehension that the state officials hardly gave due weight to the situation of the company as a whole, in their anxiety for the well-being of the state, we are of opinion that they did not exceed their constitutional powers. The order should be regarded as stating a condition that must be complied with if the company continues to use the New Jersey soil. Probably the conclusion that we have reached could be supported upon the narrower ground that a continuing obligation was imposed by the charters of the plaintiff in error's lessors, and was assumed by the plaintiff in error, but that which we have stated seems to us free from doubt.

Some argument is based upon a discretion supposed [413] to be left to the board by the statute, which reads that when it appears to the board that the crossing is dangerous, it may order, etc. The state courts seem to regard the words as imposing a positive duty; but upon either construction

we perceive no infraction of the company's constitutional rights. If the words are imperative, the reasons that we have given apply. If they leave a discretion, it is subject to review by the courts and this court has no concern with the question how far legislative or quasi legislative powers may be delegated to a commission or board. Hall v. GeigerJones Co. 242 U. S. 539, 61 L. ed. 480, L.R.A.1917F, 514, 37 Sup. Ct. Rep. 217, Ann. Cas. 1917C, 643; Engel v. O'Malley, 219 U. S. 128, 55 L. ed. 128, 31 Sup. Ct. Rep. 190; Prentis v. Atlantic Coast Line R. Co. 211 U. S. 210, 225, 53 L. ed. 150, 158, 29 Sup. Ct. Rep. 67. We deem it unnecessary to give our reasons in greater detail for deciding that the judgment against the Erie Railroad Company must be affirmed.

far as they seem to us to need mention,
in disposing of the principal case. The
other plaintiffs in error own sidetracks
which will be dislocated by the change,
and they will be put to further expense if
the plan is carried out according to what
the New Jersey court decides to be sug-
gestions, not commands. The rights in
the sidetracks are subordinate to changes
in the main track, otherwise lawful. As
against these, as against the others, the
judgment of the Court of Errors and Ap-
peals is affirmed.

Judgments affirmed.

The CHIEF JUSTICE, Mr. Justice Van Devanter, and Mr. Justice McReynolds dissent.

Petitioner,

v.

W. S. BERKSHIRE, Temporary Adminis

trator of the Estate of William A.
Linder, Deceased.

(See S. C. Reporter's ed. 415–422.)

Evidence

presumption

While the Railroad Company contends that the Public Service Railway Com- [415] SOUTHERN PACIFIC COMPANY, pany should be charged more, the latter company comes here upon the proposition that it should be charged nothing. We agree with the courts below that a street railway crossing the tracks of a steam road at grade in a public street increases the danger, and may be required to bear a part of the expense of removing it. The amount charged does not appear to be excessive, and upon the principles that we have laid down the payment of it may be made a condition of the continued right to use the streets. Detroit, Ft. W. & B. I. R. Co. v. Osborn, 189 U. S. 383, 390, 47 L. ed. 860, 864, 23 Sup. Ct. Rep. 540; Missouri P. R. Co. v. Omaha, 235 U. S. 121, 129, 59 L. ed. 157, 161, 35 Sup. Ct. Rep. 82.

The Passaic Water Company contends that the expense of moving its pipes cannot be thrown wholly upon it, mainly on the ground that the change of grade was unlawful. This ground fails, and the company must adjust itself to the lawfully changed conditions. It also contends that it does not receive the equal protection of the laws because the street railway, instead of being charged [414] the expense of moving its tracks, is charged 10 per centum of the total expense at its crossings. Presumably this charge is greater than the mere adjustment of tracks to a new surface. It is

based upon the share of the street railroad in creating the danger. As the street railroad cannot complain, certainly the Water Company cannot.

The Western Union Telegraph Company makes similar objections and also says that its interstate commerce is interfered with, and presents from its own point of view arguments dealt with, so

· knowledge.
1. An engineer who has been upon a
route for some years, and has passed over
it many times, must be presumed to have
known of the existence of a mail crane at
the side of the tracks, visible from the en-
gineer's seat half a mile ahead.
[For other cases, see Evidence, II. e, 5, în Di-
gest Sup. Ct. 1908.]
Master and servant employers' lia-
bility assumption of risk.

2. An experienced railway engineer assumes the risk, under the Federal Employers' Liability Act, of any injury that he may receive when leaning outside the cab window by reason of the fact that the

Note. Generally, as to a servant's assumption of risk-see notes to Pidcock v. Union P. R. Co. 1 L.R.A. 131; Foley v. Pettee Mach. Works, 4 L.R.A. 51; Howard v. Delaware & H. Canal Co. 6 L.R.A. 75; Hunter v. New York, O. & W. R. Co. 6 L.R.A. 246; Georgia P. R. Co. v. Dooly, 12 L.R.A. 342; Kehler v. Schwenk, 13 L.R.A. 374, and Southern P. Co. v. Seley, 38 L. ed. Ú. S. 391.

On the constitutionality, application, and effect of the Federal Employers' Liability Act-see notes to Lamphere v. Oregon R. & Nav. Co. 47 L.R.A. (N.S.) 38, and Seaboard Air Line R. Co. v. Horton, L.R.A.1915C, 47.

On distinction between assumption of risk and contributory negligence-see note to Rase v. Minneapolis, St. P. & S. Ste. M. R. Co. 21 L.R.A.(N.S.) 138.