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(271 U. S. 303)

(46 S. Ct.)

Fidelity & Guaranty Company bring error.
MISSOURI, K. & T. RY. CO. et al. v. STATE Judgment reversed.

OF OKLAHOMA et al.

Messrs. Joseph M. Bryson and Charles S.

(Submitted March 5. 1926. Decided May 24, Burg, both of St. Louis, Mo., Maurice D.

1926.) No. 205.

Green, of Muskogee, Okl., and Howard L. Smith, of Tulsa, Okl., for plaintiffs in error. Messrs. Wm. J. Horton, of McAlester, Okl.,

1. Railroads 97-State may reasonably reg-E. S. Ratliff, of Oklahoma City, Okl., and
ulate construction of highways crossing rail- Jackman A. Gill, of McAlester, Okl., for de-
roads, and legitimate exercise of power does fendants in error.
not violate constitutional rights.

State, for public safety and convenience, may directly or through its municipality reasonably regulate construction and use of highways, where they cross railroads, and legitimate exercise of police power to that end does not violate constitutional rights of railroad companies.

4. Railroads 94(1)-Ordinance infringing state's power to regulate construction of railroad crossing is void.

If enforcement of provisions of ordinance constituting a contract between city and railroad operates to hamper state's power reasonably to regulate construction and use of street and railroad crossing, such ordinance is void. 3. Constitutional law 129, 292-Railroads 97-City's agreement to bear expense of opening street across railroad held not to infringe police power, and order of state Corporation Commission requiring railroad to construct subway under tracks and pay part of cost held invalid, as impairing obligation of contract as denying due process, in violation of Const. art. 1, § 10, and Amend. 14 (Act July 26, 1866, § 8, 14 Stat. 291; Act June 28, 1898, §§ 11, 14, 30 Stat. 498, 499; Mansf. Dig. Ark. §§ 749, 760, 907-912).

Ordinance constituting contract between railroad holding fee to right of way, under Act July 26, 1866, § 8, and city having power, under Act June 28, 1898, §§ 11, 14, and Mansf. Dig. Ark. §§ 749, 760, 907-912, to contract for purchase or condemn right of way for street over railroad right of way, whereby city agreed that, should it desire to open a particular street across railroad's right of way, it would bear the expense thereof, and whereby railroad waived all claims for damages caused by the opening and establishing of such crossing, held not void, as inconsistent with city's proper exercise of police power, and order of state Corporation Commission, requiring railroad to construct subway under tracks and pay part of cost, was invalid, as impairing obligation of contract and denying due process, in violation of Const. art. 1, § 10, and Amend. 14.

Mr. Justice BUTLER delivered the opinion of the Court.

*304

The railroad of plaintiff in error runs through the city of McAlester, Okl. At Comanche avenue the main *line is on a fill, and at least one industrial or side track is on a lower level. In September, 1921, the city applied to the state Corporation Commission for an order requiring the railway company to provide at that place a pass under its tracks and a highway across its right of way. The commission ordered that the company prepare a plan and an estimate of quantities and cost for a reinforced concrete subway, having two openings of specified dimensions: that the plan show the location of industrial tracks, and that these tracks conform to the street grade; that the plan and estimate be filed with the mayor of the city and the Corporation Commission; and that, if the company and the city failed to agree on an apportionment of cost of the underpass, the commission would hear evidence on that subject. The company was ordered to have the underpass constructed and open for traffic within 90 days after arrangement by the city to pay its portion of the cost. The company filed its petition in the Supreme Court to have the order set aside on the grounds, among others, that it is repugnant to the due process clause of the Fourteenth Amendment, and impairs the obligation of a contract, in violation of section 10 of article 1 of the Constitution of the United States. The court affirmed the order (107 Okl. 23, 229 P. 172), and the case is here on writ of error. Section 237, Judicial Code (Comp. St. § 1214).

The line was built about 1873 on land

granted by Congress to the company-then known as the Union Pacific Railroad Company, southern branch-for the construction of its railroad. Act July 26, 1866, § 8, c. 270, 14 Stat. 289, 291. The city of South McAles

In Error to the Supreme Court of the State ter and the town site of McAlester were laid
of Oklahoma.

out subsequently, pursuant to the Act of Con-
gress of June 28, 1898, § 14, c. 517, 30 Stat.
Proceeding before the Corporation Commis- 495, 499. In platting these town sites, streets
sion by the State of Oklahoma and another
against the Missouri, Kansas & Texas Rail-side of the land constituting the company's
were laid out to the boundary line on each
way Company. To review a judgment of the
Supreme Court of Oklahoma (107 Okl. 23, 229
P. 172), affirming an order of the Corporation
Commission, the Missouri, Kansas & Texas
Railway Company and the United States

right of way. November 8, 1901, the city

*305

passed Ordinance No. 74. At that time there
were a number of unauthorized crossings in
use by the public, but the city had not ac-

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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quired by purchase or condemnation the right of way for the extension of any street across the railroad. The ordinance was accepted by the company and is in form a contract. It provided for the immediate extension of certain platted streets across the right of way, tracks, and station grounds of the company in lieu of the unauthorized crossings then in use. Some of the new crossings were to be constructed by the company at The order, as interpreted and affirmed, diits own expense, and the cost of others was rectly contravenes the provisions of the orto be borne equally by the parties. Terms dinance in respect of the Comanche avenue and conditions for the construction of oth- crossing. It sets at naught the undertaking er crossings were set forth in the ordinance. of the city to bear the cost of construction It was declared that thereafter the city and the agreement of the company to give would open no other street across the right the city the right of way for the street crossof way and tracks of the company, excepting and to waive all claims for damages. The upon payment of amounts specified in the effect is to require the company forthwith ordinance as stipulated damages for a right to prepare the plan and estimate, and to diof way across the railroad, any determina-rect the company-upon the determination of tion in condemnation proceedings instituted its just compensation and the consummation by the city, whether more or less than the of arrangements by the city to pay. the poragreed sum, to the contrary notwithstanding. tion of the cost, if any, that may be imposed It was stated that nothing contained in the ordinance should constitute a waiver of the upon *it-to proceed to construct the undercompany's right to contest the opening of ad-pass and to have it open for traffic within the ditional streets. But there is no provision time specified. If a contract exists between purporting to limit power or authority of the the parties in respect of this crossing, it is city to establish or regulate street crossings manifest that it would be impaired by the over, under or upon the tracks and other enforcement of the commission's order. property of the company. And it was specifically agreed that, if at any time the city render police power; and therefore that there should desire to extend and open Comanche avenue across the company's right of way and station grounds, the crossing should be constructed under the tracks located upon the fill and at grade across tracks laid at the street level, according to plans and specifica

the company was the owner in fee of its right of way lands; that they could not be appropriated or damaged for public use without just compensation; and that the commission could not enforce obedience to its order to construct the grade crossing until the question of damage to the fee had been determined either by amicable settlement or by condemnation proceedings.

tions approved by the company and at the sole cost and expense of the city. The company, for this and other considerations men

tioned in the ordinance, agreed to waive all claims for damages caused by the opening and establishing of this crossing.

*306

*Pursuant to the Act of Congress of March 29, 1906, c. 1351, 34 Stat. 91, the city of McAlester was created by the consolidation of the city of South McAlester and the town of McAlester. In performance of the agreements contained in the ordinance, the city of McAlester in 1909 and again in 1912 assumed and paid portions of the cost of construction | of some of the crossings covered by the ordinance; and ever since the consolidation it has been recognized and treated as the successor of the city of South McAlester and as a party to the contract. The present city is bound to the same extent as was its predecessor that passed the ordinance.

The court held that the state laws gave the commission full jurisdiction over all highways where they cross railways; that the commission had authority to order the crossing in question and to assess the cost of it against the city and the railway company, but not more than 50 per cent. against the city; that

*307

But defendants in error contend that the ordinance is void because it attempts to sur

is no such contract.

[1, 2] It is elementary that for the safety and convenience of the public, the state, either directly or through its municipalities, may of highways where they cross railroads. The reasonably regulate the construction and use legitimate exertion of police power to that end does not violate the constitutional rights of railroad companies. They may be required at ducts whenever the elimination of grade crosstheir own expense to construct bridges or viaings reasonably may be required, whether constructed before or after the building of the railroads. Northern Pacific Railway v. Duluth, 208 U. S. 583, 597, 28 S. Ct. 341, 52 L. Ed. 630; Chi., Mil. & St. P. Ry. v. Minneapolis, 232 U. S. 430, 438, 34 S. Ct. 400, 58 L. Ed. 671; Mo. Pac. Ry. v. Omaha, 235 U. S. 121, 127, 35 S. Ct. 82, 59 L. Ed. 157; Erie R. R. Co. v. Public Utilities Com'rs, 254 U. S. 394, 409. 412, 41 S. Ct. 169, 65 L. Ed. 322. And such costs are not included in the just compensation which the railroad companies are entitled to receive. Cincinnati, I. & W. Ry. v. Connersville, 218 U. S. 336, 343, 31 S. Ct. 93, 54 L. Ed. 1060, 20 Ann. Cas. 1206; Chi., Mil. & St. P. Ry. v. Minneapolis, supra, 440 (34 S. Ct. 400). If the enforcement of its provisions operates to hamper the state's power reasonably to regulate the construction and use of the Comanche avenue crossing, then undoubtedly the ordinance is void. Chicago & Alton R. R. v. Tranbarger, 238 U. S. 67, 76, 35 S. Ct. 678, 59 L. Ed. 1204; Atlantic Coast Line

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(46 S. Ct.)

v. Goldsboro, 232 U. S. 548, 558, 34 S. Ct. 364,
58 L. Ed. 721; Denver & R. G. R. R. Co. v.
Denver, 250 U. S. 241, 244, 39 S. Ct. 450, 63 L.
Ed. 958.

[3] The precise question is whether the
agreement of the city to bear the cost of con-
struction is inconsistent with the proper ex-
ertion of the police power.

*308

*When the ordinance was passed, it was the purpose of the parties to get rid of unauthorized crossings then in use and to arrange for the extension of platted streets across the tracks and station grounds. It was necessary for the city to obtain rights of way for that purpose, and it was empowered to acquire them by contract, purchase or condemnation. Sections 11, 14, c. 517, 30 Stat. 498, 499; Mansfield's Digest of the Statutes of Arkansas (1884) §§ 749, 760, 907-912. It could not take them without making just compensation to the owner. The company owned its right of way lands and station grounds in fee. Missouri, Kansas & Texas Ry. Co. v. Roberts, 152 U. S. 114, 14 S. Ct. 496, 38 L. Ed. 377. It was entitled to compensation for any of its property that might be taken or damaged by the construction and use of the crossings. Chicago, Burlington, etc., R. R. Co. v. Chicago, 166 U. S. 226, 251, 17 S. Ct. 581, 41 L. Ed. 979; Cincinnati, I. & W. Ry. v. Connersville,

supra.

in advance to settle the form and amount of compensation. The company's agreement to grant a right of way for the crossing was a valid consideration for the city's undertaking to bear the cost of construction.

This case is not like Northern Pacific Railroad v. Duluth, supra, cited by defendants in error. There the city had the right of way for the street, and a grade crossing existed for many years. The elimination of that crossing became necessary. The company refused to comply with the city's demands in that respect. Then a contract was made. The city agreed to build a bridge to carry the street over the railroad tracks and the company agreed to contribute $50,000 to its cost. The city undertook to maintain the bridge over the tracks for 15 years and to maintain the approaches perpetually. The city built the bridge at a cost of $23,000 in addition to the amount paid by the company. later, when repairs were needed, the company refused to make them. This court, following the decision of the Minnesota Supreme Court (98 Minn. 429, 108 N. W. 269), held that the contract was without consideration, against public policy, and void. The Northern Pacific Company gave up nothing. The city already had the right of way. The company might have been required to build the bridge. The contract relieved it of a part of the cost, and attempted for all time to suspend the proper exertion of the police power in respect of maintenance. The ordinance now before us is very different from the situation and contract considered in that case.

Years

There is nothing in the ordinance that involves any attempt to interfere with or hin

The ordinance did not purport to limit the number of crossings that might be opened. Retention by the company of the right to resort to litigation to determine whether the opening of additional streets across the railroad is reasonably necessary does not at all impinge upon police power. Quite independ-der the proper exertion of police power. Eviently of the ordinance the opening and regulation of such crossings is subject to judicial scrutiny, and action that is arbitrary or capricious will be held invalid. Denver & R. G. R. R. Co. v. Denver, supra, 244 (39 S. Ct. 450). Indeed the reservation contemplates the exertion of the police power and plainly implies that the parties did not intend to restrict the authority of the city to open crossings.

The agreement of the city to pay the amounts stipulated for the opening of certain crossings does not involve or contemplate any surrender of the power of eminent domain. It was authorized to contract, purchase, or condemn as it saw fit. The opinion of the state court rightly approves amicable settle

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dently it was the intention of the parties to make a permanent settlement in respect of the crossings covered by the ordinance. The

*310

city was em*powered to open the Comanche
avenue crossing at any time without condem-
nation or other proceedings. Neither party
could terminate the contract without the con-
sent of the other. Western Union Telegraph
Co. v. Pennsylvania Co., 129 F. 849, 862, 64
C. C. A. 285, 68 L. R. A. 968. The city's
agreement to bear the cost of construction of
the Comanche avenue crossing does not in-
fringe the police power. The enforcement of
the commission's order would deprive plain-
tiff in error of its property without due pro-
cess of law and would impair the obligation
of the contract in violation of the Constitu-
tion of the United States.
Judgment reversed.

Messrs. G. R. Harsh, of Birmingham, Ala. ST. LOUIS-SAN FRANCISCO RY. Co. v. (Harsh & Harsh, of Birmingham, Ala., on the MILLS. brief), for respondent.

(271 U. S. 344)

(Argued April 22 and 23, 1926. Decided May 24, 1926.)

No. 264.

1. Master and servant 286(1)-That
road provided guard during strike held not to
warrant submitting question of negligence in
failing to provide more than one guard to
jury (Employers' Liability Act [Comp. St.
§§ 8657-8665]).

Mr. Justice STONE delivered the opinion of the Court.

Respondent's intestate was employed in interstate and intrastate commerce by the perail-titioner, as a car inspector in its yards in Birmingham, Ala. During the railroad shopmen's strike, on the night of August 3, 1922, decedent, while returning from work to his home, on a street car, was shot to death by strikers who fired upon him, a fellow workman and a deputy sheriff employed by petitioner to guard decedent and his companion. Respondent brought suit in the circuit court of Jefferson county, Alabama, to recover for intestate's death, under the Federal Employers' Liability Act, c. 149, 35 Stat. 65 (Comp. St. §§ 8657-8665). The cause was removed to the District Court for Northern Alabama on the ground of diversity of citizenship. Judgment for the plaintiff, the respondent here, was affirmed by the Circuit Court of Appeals for the Fifth Circuit. 3 F.(2d) 882. This court granted certiorari. 267 U. S. 589,

Mere fact that railroad company voluntarily provided guard to accompany employee to and from work during strike held not to create inference that it would furnish more protection than it did, nor warrant submitting question of its negligence in failing to provide more than one guard to jury in action under federal Employers' Liability Act (Comp. St. §§ 8657-8665) for death of employee shot by strikers.

2. Master and servant 265 (2)-Burden of proving negligence of railroad in failing to provide more than one guard during strike was on plaintiff (Employers' Liability Act [Comp. St. §§ 8657-8665]).

In action under federal Employers' Liability Act (Comp. St. §§ 8657-8665) for death of car inspector, shot and killed by strikers, burden of proving negligence of railroad in failing to provide more than one guard to accompany deceased to and from work was on plaintiff.

3. Master and servant 285 (2)-Whether railroad's failure to provide more than one guard during strike was proximate cause of death of employee was too speculative to be submitted to jury (Employers' Liability Act [Comp. St. §§ 8657-8665]).

Where railroad car inspector was shot to death by strikers on back platform of street car on which he was riding home from work, accompanied by guard provided by railroad, held, in action under federal Employers' Liability Act (Comp. St. §§ 8657-8665), that whether railroad's failure to furnish more than one guard was proximate cause of death was highly speculative, and submission of question to jury was error.

On Writ of Certiorari to the United States Circuit Court of Appeals for the Fifth Cir

cuit.

Action by Odell Mills, as administratrix of the estate of Ira S. Mills, deceased, against the St. Louis-San Francisco Railway Company. Judgment for plaintiff was affirmed by the Circuit Court of Appeals (3 F.[2d.] 882), and defendant brings certiorari. Reversed and remanded.

#345

*Messrs. W. R. C. Cocke, of Birmingham, Ala., Forney Johnston, of Washington, D. C., and E. T. Miller, of St. Louis, Mo., for petitioner.

45 S. Ct. 354, 69 L. Ed. 802.

The trial judge withdrew from the jury the question whether the guard was negligent in the performance of his duty, but left it to them to say whether upon the evidence, defendant was employed in interstate commerce at the time and place of the shooting; whether there was a duty of due care on the part of the defendant to protect decedent from violence by strikers while going from his place of employment to his home; and whether the failure of respondent to send more than a single guard to protect decedent was negligence causing his death. The instructions so given, and the refusal to direct a verdict for the defendant, are assigned as error.

Petitioner argues that the evidence did not warrant the submission of any of these ques

*346

tions to the jury, and *contends, among other objections, that there is no evidence of a breach of any duty owing by petitioner to respondent. The question of law thus raised goes directly to the right to recover under the act upon which the action was based. See St. Louis Iron M. Ry. v. McWhirter, 229 U. S. 265, 277, 33 S. Ct. 858, 57 L. Ed. 1179.

It is not contended that any duty growing out of the relationship of employer and employee required the employer to guard the employee against violence by strikers. Compare Davis v. Green, 260 U. S. 349, 351, 43 S. Ct. 123, 67 L. Ed. 299; Manwell v. Durst, 178 Cal. 752, 174 P. 881, 1 A. L. R. 669 ; Roebuck v. Railway Co., 99 Kan. 544, 162 P. 1153, L. R. A. 1917E, 741; Lewis v. Taylor Coal Co., 112 Ky. 845, 66 S. W. 1044, 57 L. R. A. 447; Rourke's Case, 237 Mass. 360, 129 N. E. 603, 13 A. L. R. 546; Matter of Lampert v. Siemons, 235 N. Y. 311, 139 N. E. 278.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(46 S. Ct.)

Nor is there any evidence of such an under- had seated themselves in the car. Without
taking in the contract of employment. Hence warning they fired a volley into the car, and
the duty, if it existed, must be predicated up- fled. Decedent and his guard were armed,
on the voluntary assumption of it by peti- but had no opportunity to defend themselves.
tioner.
On such a state of facts the jury should not
have been permitted to conjecture what might
have happened if an additional guard had
been present. See Patton v. Texas & Pacific
Ry., supra; Reading Co. v. Boyer (C. C. A.)
6 F.(2d) 185; Midland Valley R. R. v. Fulg-
ham, 181 F. 91, 104 C. C. A. 151, L. R. A.
1917E, 1; Laidlaw v. Sage, 158 N. Y. 73, 52
*348
*The evidence
N. E. 679, 44 L. R. A. 216.
must at least point to the essential fact which
the jury is required to find in order to sus-
tain the verdict.

[1] Taken in the aspect most favorable to respondent, the evidence shows that decedent was first employed on the Monday preceding his death, which occurred on Thursday. The strike had been in progress for some time, and 6 or 7 employees were on strike in the yard where decedent was employed. The number of strikers elsewhere does not appear. Seven guards were employed by petitioner in the yard where decedent worked, and from 50 to 75 were employed elsewhere in the city. There was some evidence that, during decedent's employment, guards had been provided for employees while at work during the day, and to accompany decedent and some others to and from their homes. There was no evidence that petitioner had ever furnished decedent or any other employee with more than one guard in going to or from work, or any other evidence from which it could be inferred that petitioner had undertaken, or held itself out as undertaking, to furnish more protection to the decedent or its other workmen than it actually did furnish.

*347

*The respondent here asserts that the defendant, having assumed to do something, should have done more. But the bare fact that the employer voluntarily provided some protection against an apprehended danger, by undertaking to do something which involved no special knowledge or skill, can give rise to no inference that it undertook to do more. Respondent therefore relies on the breach of a duty which does not exist at common law, and of whose genesis in fact it offers no evidence.

[2] There is a similar absence of evidence of negligent failure by petitioners to fulfill this supposed duty of protection. The burden of proving negligence rested on the respondent. Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, 21 S. Ct. 275, 45 L. Ed. 361. But whether a supply of guards sufficient to meet the emergency was obtainable, what demands were made upon them, and whether there were other guards available for the particular journey when the decedent was killed, are questions on which the record is silent.

We need not inquire whether decedent was employed in interstate commerce at the time of his death, or whether the rule laid down in Erie R. R. v. Winfield, 244 U. S. 170, 37 S. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 662, can be extended, as the court below held, so as to support the judgment of the District Court.

Judgment of the Circuit Court of Appeals is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed.

(271 U. S. 323)

CORRIGAN et al. v. BUCKLEY.
(Argued January 8, 1926. Decided May 24,
1926.)

1. Courts

No. 104.

398 (1)-Mere assertion that construction or application of Constitution or federal laws is involved does not authorize Supreme Court to entertain appeal; it being court's duty to decline jurisdiction if record does not present substantial constitutional or statutory question, properly raised below (Judicial Code, § 250, pars. 3, 6, before amendment of 1925 [Comp. St. § 1227]).

Mere assertion that case involves construc-
tion or application of Constitution and draws
in question construction of federal laws is alone
insufficient to authorize Supreme Court to en-
tertain appeal under Judicial Code, § 250, pars.
3 and 6, before amendment of 1925 (Comp. St.
81227); it being duty of court to decline ju-
risdiction, if record does not present substan-
tial constitutional or statutory question, prɔp-
erly raised below.

2. Courts ~394 (1)—Jurisdiction of Supreme
Court is wanting under statute, if constitu-
tional and statutory questions involved are
so unsubstantial as to be without color of
merit and frivolous (Judicial Code, § 250,
pars. 3, 6, before amendment of 1925 [Comp.
St. § 1227]).

[3] Nor is there evidence from which the
jury might infer that petitioner's failure to
provide an additional guard or guards, was
the proximate cause of decedent's death.
Whether one or more additional guards
would have prevented the killing is in the
highest degree speculative. The undisputed
Jurisdiction of Supreme Court, under Judi-
evidence is that the shooting was done by ment of 1925 (Comp. St. § 1227), is wanting,
cial Code, § 250, pars. 3 and 6, before amend-
one or more of three men standing on the if constitutional or statutory questions involved
rear platform of the car. They had come
are so unsubstantial as to be plainly without
there after decedent and his companions color of merit and frivolous.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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