were under the car repairing, and not to strike | lute safety. He did neither. Nor can these or couple to it, as it could not go out until acts of negligence be legally excused by conrepairs were finished. Rice walked to the ceding that Pool's conduct, whether of commis south end of the car, and as the caboose sion or of omission, was caused by *the [445 slowly backed down, called out, when it was reliance placed by him on the warning which about 20 or 30 feet away, to Kilpatrick, he expected would be given by Rice, the car a switchman, who was standing on the repairer, who remained on the side of the west side of the caboose, not to make the coup- track. Either Rice was the agent of Pool or ling as men were at work under the car. The of the corporation. If he was the agent of caboose continued to slowly back towards the former, of course Pool cannot recover for the car, and when it arrived within about 6 an injury suffered by him in consequence of feet stopped for a brief moment. Kilpatrick, the negligence of his own agent. If Rice, in on its so stopping, at once gave the signal to giving the warning, was the servant of the the engineer to back down, which signal was corporation, his negligence gave rise to no obeyed, the caboose striking the car with cause of action on behalf of Pool, since in considerable force. In the meanwhile, either any and every view of the law of fellow serv. on the going forward of Rice or on the stop-ants, Rice and Pool were such servants. The page of the caboose, Fowers returned quickly | negligence of Pool, established by the undisto his work, as did also Pool. As the former puted testimony, was not denied by the court stepped under the car, being uneasy lest the below, but was treated as immaterial, in concaboose should couple, he looked out and sequence of what the court considered to be caught sight of a portion of Kilpatrick's body, proof of neglect on the part of Kilpatrick, and saw his arm wave the signal to back the switchman. Such neglect on his part was down. He cried out to Pool and threw him- treated as having been the proximate, and self from under the car and was thus saved. therefore sole, legal cause of the accident. 444] Pool was not so alert, and *was caught This conclusion is thus stated in the opinion between the car on which he was working of the supreme court of the territory: and the one in front thereof, receiving a mortal injury. Whilst it is certain that Rice gave a warning call to Kilpatrick, and told him that the men were under the car, and not to couple the caboose to it, there is no evidence whatever that Kilpatrick heard and understood the purport of what Rice said to him when he called to him; there is no proof that he conveyed any signal to Rice which could have produced upon Rice's mind, or upon the mind of any one, the impression that he understood that the men were under the car. There is no proof that Kilpatrick, after the warning given by Rice, transmitted any signal to the engineer to stop the train, and therefore there is no proof that the stop which the caboose made in its backward movement was the result of any communication, by signal or otherwise, between Kilpatrick and the engineer, nor, indeed, is there any proof that the stop was the result of anything but the caution of the engineer in backing down, under the impression that he had backed far enough to make the coupling which it was his purpose to make.

These being the undisputed facts, there can be no doubt that the fatal injury which Pool received was the result of his own inexcusable negligence. He went under the car which was standing on the track with a train in front of it, and with a certainty that a caboose was to be attached to the rear, without putting out a flag or other signal warning of his being under the car in order to protect himself from the peril which was obvious and of which he must have been aware, having been for a period of three years engaged in doing work of a like nature. This original act of negligence was continued by his subsequent conduct. As the caboose backed slowly down it was, both heard and seen by him in ample time to have enabled him to get from under the car. There was also abundant opportunity for him to step out and give warning to the engineer in charge of the switch engine, and to Taylor the switchman, who was on the west side of the moving car, thus insuring abso

"Nor can there be any question made but that Kilpatrick heard the signal from Rice to stop the engine, and that he acted upon such signal and did stop the engine about 6 feet from the car in question, under which the de ceased was working at the time. The signal was understood by the switchman Kilpatrick, and obeyed by him. The verbal communica tion to Kilpatrick to stop the engine was a notice and warning as certain, positive, and safe as if there had been a red flag signal used in such case. In any event Kilpatrick received it, understood it, and replied to it, and complied with it at the time, and he would have done no more had there been a red flag signal placed by the car."

We have already said that the record, which contains all the testimony, disclosed no proof whatever either that Kilpatrick understood the call of Rice, that he gave any indication to Rice of his so understanding, or that, in consequence of Rice,s warning, he signaled the stoppage of the engine, or that he did any of the things which the court below concluded the undisputed proof established that he did do. The case then, on this question, resolves itself to this, that we find no proof whatever of facts which the court below considered *to be[446 undisputedly established. The only testimony which refers to what took place at the time the warning was given by Rice is that of Rice and Fowers, Kilpatrick not having been examined. The following excerpts from the testimony of Rice contain every word said by him which can in any way throw light on the subject:

"Q. What, if any, conversation did you have with Mr. Kilpatrick?

"A. I had no conversation with Mr. Taylor, if that is his name; I do not know him. There were two switchmen; I didn't know the names. I had no conversation with Mr. Taylor. I had no conversation any further than to tell Mr. Kilpatrick not to come up to touch the cars, there were men working under the car.

SOUTHERN PACIFIC Co. V. POOL.

446-448

"Q. How far was he from you at that time? | understood Rice is the statement of Fowers, "A. Well, it was 20 or 30 feet at the time 1 told him this.

"Q. Where was he at that time?
"A. He was on the west of the caboose.
"Q. Now, then, you told him that; what
did you see, if anything, him do?

"A. Well, I saw him do nothing more until the engine and caboose stopped within 6 feet of this freight car that they were working on, when it stopped still; the next signal was Mr. Kilpatrick gave a motion.

Q. What was that?

"For it to come back, and it came back with great force; and at that time I heard Mr. Fowers holler 'Pull up!' I run back to where Mr. Fowers was. He was at the other end of the car where he was at work previous to my going up and notifying him not to come down, and I saw Mr. Pool in between the cars, and we yelled for help.

QHow long after you told Mr. Kilpatrick that there were men under the cars was it that you saw Mr. Kilpatrick go and make the signal? "A. How?

that he heard Kilpatrick make some reply, although the witness could not give the nature of the reply. But the question is, not whether whether he understood his meaning; therefore Kilpatrick heard the voice of Rice, but the mere fact that the witness testifies some

says to him, says I, 'You go and stop him, and don't
"Mr. Rice was standing outside of the car, and I
let him hit this car at all,' and told him that it could
not get out on the train until it was repaired. Of
course, they could not make up the train until
hit the car at all, and we will have it done in five
that car was repaired, and, says I. 'Don't let them
to the other end of the car, and I saw him signal
for the engineer to stop, making the regular signal
minutes.' Says he, All right,' and stepped down
with his arms to them coming up.

stood and signaled. I was standing right at the
"Q. What, if anything, did he say at that time?
"A. He didn't say anything at that time-he
end of the car, still looking down, and saw Mr.
ing. They come up very slow within about 6
Pool leaning back over the rail this way-about in
that position-looking back at the engine com-
feet of the car that he was working under, and
then came to a stop. I heard Mr. Rice tell some-
body not to hit the car; that they were working
there. As soon as I heard him say that I just went

"Q. How long after you told Mr. Kilpat-right to work, and jumped right under the car rick that there were men under the car? 447] *"A. How long after that? Oh, it was very short.

"Q. And then what, if anything, did the engineer on the car, on the engine that he was working, do in response to that signal? What did the engineer do with his engine in response to that?

"A. Why, he backed up.

"Q. How did he back up?

"A. He came back with great force to this

car.'

"

felt a little uneasy myself, thinking they might try again with Mr. Pool, and he turned his attention right to the work, and we went to work again. I working under. They can do that very easily to couple the caboose on to the car that we were leaned over the rail-I was kind of on my kneesand I turned my head, and leaned over the rail to sometimes, you know, without moving it. So I the east, and looked right out, and there I saw one of the yardmen giving a signal to back up. I could see the motion of his arms and part of his body, and says 1, 'Look out, Joe, they are right on us!" and threw myself head first out over the rail." On cross-examination he said:

"Q. Did you advise those switchmen to notify the engineer you were in there?

that we were in there repairing a car.

"A. No, sír: I told Mr. Rice to tell the switchman

to notifying the engineer? You expected him to
"Q. And you relied on the switchman to attend
notify the engineer?

same condition or position, did he expect that,
A. "Yes, sir.
"Q. To protect you both-Mr. Pool was in the
too?

"A. Sir?

switchman to notify the engineer, and you thought "Q. Mr. Pool and yourself both relied on the the switchman would attend to it?

"A. Yes, sir.

he was asked:
After stating the presence of Rice beside the car,

"Q. And you requested him to notify the engineer?

This testimony, it is apparent, does not even tend to show that the switchman Kilpatrick understood the warning given by Rice, or that he acted upon it by transmitting a signal to the engineer to stop the train, and then signaled to continue. The mere presence of Rice, if, owing to the noise of the moving train or from other reasons, his warning either did not reach or was misunderstood by Kilpatrick, was not sufficient to convey the fact that men were working under the car, and therefore it should not be coupled. Rice was an air ad-gineer see you from where he was, out on the en"Q. That he would notify them, could the enjuster. His work could not be done without gine? Could he see you were in there with the the coupling of the car. therefore, if his voice was not heard and his His mere presence, caboose and car between you? words understood, would have naturally sug"A. No, sir." gested that he desired the coupling to be done in order that his work might be accomplished. Nor can it be considered, without any evidence tending to that end, that Kilpatrick understood the warning, knew the men under the car, signaled to stop the backward movement of the caboose, and then suddenly, without any change in the situation, gave the signal to back up. Such conduct on his part would have been murder, and is certainly not to be presumed without proof, on bare suspicion. The testimony of Fowers, full excerpts therefrom being in the margin, whilst more contradictory than that of Rice, likewise fails to show that Kilpatrick actually understood Rice or acted on the warning by him given. 448] An examination of this testimony *at once demonstrates that the only matter therein which seemingly tends to show that Kilpatrick 160 U. S. U. S.. BOOK 40.

were

could not use the air on that train until we had "A. Yes, sir. Understand, of course, that they done these repairs, because they could not make the coupling with the rest; they were waiting for these repairs.

"Q. Sir?

"A. They were waiting for these repairs.

"Q. While he was standing there you just reback? quested him to notify the engineer not to back

"A. Not the engineer, but the switchman.

"Q. Not the engineer, but the switchman, not to
back back the engine?
"A. Yes, sir.

or not.
"Q. You don't know whether he notified them

that was satisfactory to me.
"A. I heard him tell them not to hit the car, and

I

"Q. You supposed it would not be struck?
"A. I supposed it would not be struck; yes, sir.
"Q. Did you see the switchman yourself?

could see his arm and part of his body.
"A. I saw one of them-a part of one of them-

31

449] reply was made, without giving the *re- | for when asked, in the first instance, whether ply, in no way shows that Rice's warning was Kilpatrick in giving the signal to back did so comprehended. Indeed, the entire context of after he had been warned by Rice, answered. the testimony shows that Fowers himself was "Well, I suppose"-a mere conjecture; and uncertain whether the warning given by Rice again, when asked if the engineer had stopped was received and understood by Kilpatrick, the engine in consequence of a *signal [450 from Kilpatrick, his reply was, "Yes, sir: it "Q. Well, was it the switchman that Mr. Rice must have been,"-a mere opinion. On cross exspoke to that beckoned the engine to back back? A. Yes, sir; I heard Mr. Rice talking to that amination, in answering a question asking, switchman, and I supposed it was that switch-"Who then signaled the engineer not to back

man.

Q. Well, what switchman was that; who was it? A. I think it was Ben. Kilpatrick: I would not be positive which one it was.

"Q.But do you think it was Ben. Kilpatrick who signaled the engineer to back back?

A. Yes, sir.

"Q. And struck this car?

"A. Yes, sir.

back?" Fowers answered, "Yes, sir." But the whole context of his testimony shows that the word "not" in the question was misunderstood by the witness, for he was testifying solely as to the signal given to back after he (the witness) was under the car. Indeed, this is the only signal which he, Fowers, testifies he saw

"Q. And he did that after he had been warned by given by Kilpatrick. To construe this ques

Mr. Rice?

"A Well, I suppose

"Q. Well, after you heard Mr. Rice tell him? "A. Yes, sir.

"Q. He done that after he had been told by Mr.

Rice not to hit the car?

"A. Yes, sir.

"Q. Who then signaled the engineer not to back

back?

"A. Yes, sir.

"Q. It was the switchman?

"A. It was the switchman; yes, sir.

"Q. I think you got back under the car, as I understand you, and commenced to fix this bolt? "A. Not until they come to a stop. "Q. Not until they come to a stop? "A. Yes, sir.

Q. Well, after they came to a stop did you know that there was any signal, and who was it made the signal to back back farther?

A. At the time that I saw the signal I was under the car, but leaning out over the rail, and I saw the signal for the back up; that was after they had stopped, and after I had got under the car again, and at that time I leaned over and saw, I think it was Kilpatrick, giving the signal to back

"Q. And that is the time that Pool was caught? "A. Yes, sir.

On his redirect examination be said:

tion and answer as relating to a presumed signal not to back given by Kilpatrick to the engineer in consequence of Rice's warning, would contradict the whole of Fowers' testimony, since it clearly shows that no such signal was seen by him, and that the only signal which he noticed was the one given to make the coupling which led to the death of Pool.

*Finding no proof whatever that the [451 switchman actually understood the warning given by Rice and acted upon it, there is nothing in the record to support the conclusion below that, as the warning was actually given and understood, Pool was thereby relieved from the legal consequence of his negligence in having gone under the car without placing the usual and customary signal, of having remained there in the presence of an impending danger, and, when there was ample opportunity to avoid it, of having failed himself to give a warning as the car moved down, which the proof shows he could have done, thus rendering his posi tion absolutely safe.

The judgment is reversed, and the case re

"Q. Where were you when you saw Rice commanded with directions to grant a new trial. municate, do you know, to Kilpatrick?

"A. I was standing at the north end of this car.

"Q. Standing there?

"A. Yes, sir.

"Q. Where was Kilpatrick; on which side of the train?

"A. He was right in front of the caboose, I think. "Q. Where was that caboose from where you were?

"A. Well it might have been 20 feet at that time. "Q. I understand you to say it was about 20 feet to where Kilpatrick was?

"A. Yes, sir; when Mr. Rice spoke to him.

Q. Did you see Kilpatrick when he spoke to him? "A. Yes, sir.

"Q. Well, did he bear him? Are you able to say that he heard him?

"A. Well, I heard Mr. Kilpatrick make some reply, but I don't know what it was.

Q. He replied, did he, when Rice spoke?

"A. Yes, sir.

"Q. This was the time the engine was standing still?

"A. No, sir; she was moving then, and came up within about C feet and then stopped. She was stopped at the time

Q. I know; but after Rice spoke to Kilpatrick the engineer stopped the engine. "A. Yes, sir.

"Q. Was that in response to the signal from Kilpatrick?

"A. Yes, sir; it must have been.

"Q. What did Kilpatrick (of course meaning Rice) say when he communicated to Kilpatrick; did he refer to your being under the car?

"A. I would not be right positive as to that. He told him not to hit the car, and I think he said we were working there."

490

When servitude attaches to lands-equal pro tection of the law-due process of law.

1. Where by the state law lands bordering upon a navigable river are subject to a servitude in favor of the public, whereby such portions thereof as are necessary for the purpose of making levees may be taken without compensation, such servitude attaches to lands whose titles are derived from the United States.

2. The subject-matter of such rights and regula

tions falls within the control of the states; and the provisions of the 14th Amendment of the United States Constitution are satisfied if, in cases like the present one, the state law, with its

States; streams and inland waters as highways, —see NOTE. As to navigable waters; what are in United note to United States v. The Montello, 22: 391.

As to what is due "process of law," see note to Pearson v. Yewdall, 24: 436.

benefits and its obligations, is impartially ad-tained thereby entitling the injured party to no recompense, the same being damnum absque injuria; the other being the exercise of the right of eminent domain, the damages entailed being compensable.

Trezevant, 38 La. Ann. 746.
Bass v. State, 34 La. Ann. 494; Chaffe v.

In determining whether the laws of a state are in conflict with the prohibitions of the FedDecided Jan-eral Constitution, this court must decide for itself; and if the decision requires a construction of state Constitutions and laws, it is not

APPEAL from a decree of the Circuit Court necessarily governed by previous decisions of

The state court seems to have appreciated this difficulty, and to have disposed of it by Mr. Wade R. Young, for appellant: justifying the taking as an exercise of the poBy article 156 of the Constitution of Louisi- lice power, entirely compatible with the right ana adopted July 23, 1879, private property of expropriation and provided for by the stat shall not be taken or damaged for public pur-ute for the making and repairing of levees, poses without just and adequate compensation being first paid.

mains of the legislation except the principle | the amount of damage that may be done the embodied in the article of the Code. complainants, and the benefit also that may arise from the construction of the levee, and if it appear that the amount of damage is greater than the benefit accruing, the difference shall be paid out of the levee fund within a reasonable time after the report of the jury; and any person refusing to act as one of the jurymen in this section shall be fined $50." Inge v. Tensas Police Jury, 14 La. Ann. 117.

The Acts of 1829, § 5 (La. Rev. Stat. 1856, p. 481), provided: "Throughout all that portion of the state watered by the Mississippi and the bayous running to and from the same, which are settled, where levees are necessary to confine the waters and to protect the inhabitants against inundation, the said levees shall be made by the riparian proprietors in the proportions and at the time hereinafter prescribed."

This had been the law and public policy of the territory before its purchase, and up to that time, and was the condition of the ancient grants.

This enactment was a legislative recognition of the right to compensation to the full extent, and an abandonment of the principle of servitude.

The Constitution of 1852, art. 105, contained the same provision that "vested rights should Cash v. Whitworth, 13 La. Ann. 402, 71 Am. not be devested unless for purposes of public Dec. 515. utility, and for adequate compensation previ

The Constitution of 1812 imposed no restric-ously made." tion on the right of the legislature to take private property for public use without compensation, and in that respect its will was sovereign.

As the state progressed in population, wealth, and intelligence, the system was found to be unequal and oppressive, or inadequate to the needs of the public, and it was enacted as early as 1829 (La. Rev. Stat. 1856, p. 501) that "the police juries of the parishes of Concordia and Ouachita (then embracing all that part of the state between the Ouachita and Mississippi rivers) shall have plenary and unlimited power to make such enactments with regard to roads and levees within their respective limits as may be deemed necessary and proper by those bod des, including the power to authorize the assessment and collection of taxes which they may deem necessary on the private land claims within any levee district established by them, to cover the expenses of leveeing any public land included in such district, or other necessary work or expenses authorized by any ordinance of said juries respectively.

"Sec. 219. If, in the exercise of the powers granted by the foregoing section, the police juries of the parishes of Concordia or Ouachita find it necessary to stop the natural drain of one or more tracts of land, in order to protect several other tracts or a considerable district of country, they shall have power to do so. If any individual, the natural drainage of whose land shall have been so authorized to be stopped, should deem himself damaged thereby, he may, at the same or at the next regular meeting of the said police jury, claim indemnity therefor."

The principle of indemnity for damages so inflicted was thus early recognized by the legislature.

In the Constitution of 1845, art. 109, the people first adopted in their organic law the provision that "vested rights should not be devested unless for purposes of public utility and for adequate compensation previously made." In 1848 the legislature enacted (La. Rev. Stat. 1856, p. 496): Whenever it shall be necessary to make a new levee in the parish of Tensas, and the persons on whose lands the same may be laid off shall feel themselves aggrieved or injured thereby, the police jury shall appoint a jury of five disinterested freeholders of a different levee ward, who shall examine on oath and report to the police jury

In Zenor v. Concordia, 7 La. Ann. 150, and Dubose v. Levee Comrs. 11 La. Ann. 165, the court adhered to the doctrine of servitude, and in the latter case held that, although the property was considerably impaired in value, the law concerning the expropriation of private property for public use did not apply to such lands upon the banks of navigable rivers as may be found necessary for levee purposes. In neither case was any allusion made to the constitutional provision against the devestiture of vested rights without compensation. In the case of Mithoff v. Carrollton, 12 La. Ann. 185, the court seems for the first time to have recognized the constitutional provision, and, by a divided court with a strong dissenting opinion, without abandoning the doctrine of servitude, distinguished, and held that the soil alone owed the servitude, and that when it became necessary to construct a levee on ground on which buildings had been erected, and the buildings had been demolished for that purpose, the owners were entitled to be compensated for their value. Cash v. Whitworth, 13 La. Ann. 401, 71 Am. Dec. 515; Inge v. Tensas Police Jury, 14 La. Ann. 117.

The former laws were all repealed after the late war, and a new and different system adopted, by which the state undertook the duty of making and repairing levees. Jefferson Po lice Jury v. Tardos, 22 La. Ann. 58; Surgi v. Matthews, 24 La. Ann. 613. The Constitution of 1868, art. 110, contained the same provision that "vested rights should not be devested, unless for purposes of public utility and for adequate compensation made."

The case of Bass v. State, 34 La. Ann. 494, arose and was decided under that Constitution, and the court held that private property could be taken for public use, in the exercise of the general police powers of the state, without making compensation therefor. In 1879 the people adopted a new Constitution, and in that appears for the first time the provision in the words of the 5th Amendment to the Constitution of the United States and of so many of the states, that "private property shall not be taken (nor damaged) for public purposes (use) without just (and adequate) compensation (first paid)."

This provision had at that time been construed by this court and by the courts of many of the states, and it had come to be understood that the exercise of the police power, as dis