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ent, where the master so certainly failed in the discharge of his duty in the respect already indicated.

care, have foreseen as necessarily incidental to the business in the matter and ordinary course of affairs, though more than this is not required of him. It makes no difference what is the nature of the peculiar peril, or whether it is or is not beyond the master's control. And it is not enough for the master to use care and pains to give such notice. He must see that it is actually given. If, therefore, he fails to give such warning, in terms sufliciently clear to call the attention of his servants to a peril of which he is or ought to be aware, he is liable to them for any injury which they suffer thereby withmust be timely that is, given in suflicient time to enable the servant to profit by it. It is therefore the duty of the master to give adequate and timely warnings of changes in the situation involving new dangers."

In the case of Northern P. R. Co. v. Herbert, 116 U. S., at page 648, 29 L. ed. at page 758, 6 Sup. Ct. Rep. 593, in speaking of the correlative duties and rights of master and servant in regard to machinery, appliances, etc., the Supreme Court in one sentence epitomizes a phase of the subject in this language: "His [the servant's] contract implies that in regard to these matters his employer will make adequate provision that no danger shall ensue to him." Doubtless the dangers alluded to were unnecessary or un-out contributory negligence. Such notice known dangers, but this statement from the court's opinion gives a clear idea of the master's duty in the case before us. The master should have taken adequate measures to make known the dangers which persons ignorant of the workings of the new switch might incur by its use.

Many other cases from the Supreme Court might be referred to illustrative of the general principles we are discussing, but we will only name that of Texas & P. R. Co. v. Archibald, 170 U. S. 669, 42 L. ed. 1188, 18 Sup. Ct. Rep. 777, and that of Chicago, M. & St. P. R. Co. v. Ross, 112 U. S. 377, 28 L. ed. 787, 5 Sup. Ct. Rep. 184, where, on page 382, 112 U. S., page 789, 28 L. ed., and page 186, 5 Sup. Ct. Rep. the court, after alluding to the arguments by which the doctrine that the servant assumes the known and ordinary risks of his employment are supported, said: "But, however this may be, it is indispensable to the employer's exemption from liability to his servant for the consequences of risks thus incurred that he should himself be free from negligence. He must furnish the servant the means and appliances which the servant requires for its efficient and safe performance, unless otherwise stipulated; and if he fail in that respect, and an injury result, he is as liable to the servant as he would be to a stranger. In other words, while claiming such exemption, he must not himself be guilty of contributory negligence."

In 1 Shearm. & Redf. Neg. 5th ed. § 202, the authors say: "A master who employs servants in a dangerous and complicated business is personally bound to prescribe rules sufficient for its orderly and safe management, and to keep his servants informed of these rules, so far as may be needful for their guidance."

And they amplify the principles applicable to this case in § 203 in the following language: "It is also the personal duty of the master, so far as he can, by the use of ordinary care, to avoid exposing his servants to extraordinary risks which they could not reasonably anticipate, although he is not bound to guarantee them against such risks, nor to guard against an accident which is not at all likely to happen. The master must therefore give warning to his servants of all perils to which they will be exposed, of which he is or ought to be aware, other than such as they should, in the exercise of ordinary

The last proposition announced in the paragraph just quoted is supported by several cases, such as Chicago & A. R. Co. v. Kerr, 148 Ill. 605, 35 N. E. 1117; Donahoe v. Old Colony R. Co. 153 Mass. 356, 26 N. E. 868; Stephenson v. Ravenscroft, 25 Neb. 678, 41 N. W. 652; Mollie Gibson Consol. Min. & Mill. Co. v. Sharp, 5 Colo. App. 321, 38 Pac. 850. Elliott, in his work on Railroads (vol. 3, §§ 1268, 1272, 1273), lays down the recognized general propositions in regard to the duty of the master to furnish safe appliances and safe places for the servant to work in, but we do not deem it necessary to cite other authorities.

We conclude that while the railroad track in the yard at Somerset, and even the new switch itself, were in good physical condition, and while it is shown that the receiver used at least ordinary care to have them so, still that the existence of the latent dangers connected with the operation, by ignorant persons, of the new form of switch just put in, must have been known to the receiver, and that such information must have been acquired by him, when he was purchasing the switch and preparing to put it in use in the yard. At all events, that he must be charged with having such information we cannot doubt. If this is true, it follows that it was his duty to give notice of those dangers to Gray by explanation in some form, or by rules or regulations brought to his attention. There does not seem to have been anything of this kind done. If notice in any form of the exact facts had come to Gray before he went upon the train, his going would then have been at his own risk, and his not signaling the engineer to stop the train when he saw that the switch was open would then have been his own folly. Not to have endeavored to stop the train under such circumstances, and if he had known of the danger arising from the switch being open, would have been suicidal; but not to have made an effort to have the engineer stop, under the actual facts as disclosed by the evidence, shows the utter ignorance of Gray of the danger about which the master should have seen that he was accurately informed.

The general and correct propositions of

ure. The principle upon which this case must turn is very different. In Texas & P. R. Co. v. Cox, 145 U. S. 593, 36 L. ed. 829, 12 Sup. Ct. Rep. 905, the original petition claimed, as appears from the record, that the injury resulted "because of the defective condition of the cross-ties and of the roadbed, through the negligence of the reIn the amended petition it was it was his duty to do, was injured on acaverred that "Cox, in coupling the cars, as being suitable for the purposes for which count of the drawhead and coupling pin not they were to be used, he being ignorant thereof, and of the defective condition of the track." The statute of limitations being pleaded to the amendment, the court adjudged that it' did not apply. The facts in the case before us do not seem to differ in any material respect from those in the Case of Cox, just referred to, so far as our decision must depend upon them. Here, as in the Cox Case, the original petition specified certain acts of negligence. The amended petition specified certain others which contributed to or concurred in producing the one injury complained of, namely, the death of Gray.

law that an employer does not insure the
safety of his employee; that if the latter
knows of risks, and voluntarily subjects
himself to them, the master is not liable for
the injury thereby incurred; and that, gen-
erally, all that is required of the master is
to provide reasonably safe appliances for the
use of his employees in their work, and rea-
sonably safe places for them to work in,-ceivers."
are in no wise questioned. The sole ground
upon which we rest our judgment upon this
case is that there was a latent and unappar-
ent, but a very certain and material, danger
to uninformed employees, accustomed to
operating the other form of switch, in the
use, without sufficient knowledge, of the new
so-called "automatic switclt," under the cir-
cumstances of this case, of which danger it
was the duty of the receiver, who must have
known of it, to give, in some way, clear and
unmistakable information to his employees,
including Gray. The failure of the receiver
to do this by regulation, rule, notice, or
otherwise was such negligence upon his part
as renders him liable for the injuries to
Gray, who was evidently subjected to a great
risk and hazard, the existence of which he
did not suspect, but which could have been
obviated very easily by notice to him from

the better-informed receiver.

It results that the judgment of the Circuit Court must be affirmed.

A petition for rehearing having been filed, the following response was handed down on June 11, 1900:

In an elaborate petition the court has been asked by the appellant to rehear this case, mainly upon the ground that the statute of limitations barred the remedy of the appellee. In support of this contention he relies chiefly upon the opinion of the Supreme Court in the case of Union P. R. Co. v. Wyler, 158 U. S. 285, 39 L. ed. 983, 15 Sup. Ct. Rep. 877. This question had already received the careful consideration of the court, and there is nothing in the opinion referred to which makes it necessary for us to change our judgment. In that action against the railway company for damages, the plaintiff based his claim upon the general law of master and servant and his rights thereunder. During the progress of the suit an amended petition was filed, by which a cause of action was set up growing out of the same facts, but based upon the rights and liabilities created and existing under a statute of the state of Kansas. The statute which supported the claim made in the amended petition had created a cause of action entirely different from the one arising at common law, set up on the original petition. The court, upon that ground alone, held that there was a departure, and that the plea of the statute of limitations would therefore prevent the relief sought by the amended petition. To the case before us that ruling cannot apply, because, if for no other reason, there was no depart

The Kentucky practice is quite as instructive and controlling. In Greer v. Louisville & N. R. Co. 94 Ky. 169, 21 S. W. 649, the only negligence alleged in the original petition related to the act of driving or operating the train. An amended petition was tendered, setting up as additional acts of negligence that the guard rail and coupling pin were defective. The inferior court refused to permit the filing of this amendment, which action of the court, under the Kentucky practice, was reviewable. The court of appeals held that it was error to refuse permission to file the amendment, upon the ground that the proposed amendment was not a departure, inasmuch as the cause of action was not changed, and as the alleged acts of negligence may all have concurred to cause the injury.

In Smith v. Missouri P. R. Co. 5 C. C. A. 557, 12 U. S. App. 426, 56 Fed. Rep. 458, it the eighth circuit that "where, in an action was held by the circuit court of appeals of against a railroad company for causing the death of an employee, the original petition proceeds entirely on the ground of the company's negligence in employing an engineer which alleges that the engineer was negliknown incompetence, an amendment gent, and that he and the deceased were not fellow servants, does not introduce a new cause of action, but is only an amplification of the original one, and is a proper amendment."

of

The circuit court of appeals for the fifth circuit, in Cross v. Evans, 52 U. S. App. 720, 86 Fed. Rep. 6, 29 C. C. A. 523, distinctly held that the assignment of additional specifications of negligence in an amended petition does not create a new cause of action, so as to let in the plea of limitation. Under § 134 of the Kentucky Civil Code of Practice amendments are most liberally allowed to

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EX PARTE Henry LORENZEN.

14. An unconstitutional attempt to enforce a private civil contract by penal legislation is not made by an ordinance providing that it shall be a misdemeanor for a passenger to give away or sell any street

railway transfer, since its primary object is to promote the convenience and welfare of the traveling public.

2. An ordinance intended to prevent or remedy an abuse of the transfer system is a legitimate exercise of the power expressly granted by Cal. Civ. Code, § 503, giving cities the right to make reasonable regulations for the operation and management of

street railways.

3. An ordinance making it a penal offense for any person except a duly authorized conductor or agent of a street-railway company to issue, deliver, give, or sell any transfer, transfer check, or ticket issued, or purporting to be issued, by such company is not unconstitutional as an unlawful deprivation of property, since it interferes with no rights enjoyed by the passenger under his contract with the railway company, as the transfer is given to him for the purpose of enabling him to continue his journey, and is not transferable or assignable

to another: nor is it a deprivation of the personal liberty guaranteed by U. S. Const. 14th Amend. § 1, and Cal. Const. art. 1, $1.

4. The generality of the language of

an ordinance making it a penal offense for any person except a duly authorIzed conductor or agent of a street-railway company to issue, deliver, give, or sell any transfer, transfer check, or ticket issued, or

purporting to be issued, by such company, does not make the ordinance invalid on the ground that it is unreasonable and oppressive by making every person, however innocent, who shall hand a transfer to anyone other than the person authorized to receive it guilty of a misdemeanor, since the courts, in construing the ordinance, will look to its essence and spirit, and will apply it only to acts in their nature illegal or fraudulent.

(Garoutte and Van Dyke, JJ., dissent.)

(April 30, 1900.)

A PPLICATION for a writ of habeas corpus to obtain the release of petitioner from custody to which he had been com

NOTE--As to street-railway transfers, see also Heffron v. Detroit City R. Co. (Mich.) 16 L. R. A. 345; Pine v. St. Paul City R. Co. (Minn.) 16 L. R. A. 347; Mahoney v. Detroit Street R. Co. (Mich.) 18 L. R. A. 335; and O'Rouke v. Citizens' Street R. Co. (Tenn.) 46

L. R. A. 614.

mitted for violation of an ordinance forbidding the disposition of street-car transfers. Petitioner remanded.

The facts are stated in the opinion. Messrs. James G. Maguire and Frederick MacGregor for petitioner.

Mr. Peter F. Dunne, for respondent: The general term "persons," used in the ordinance, must be construed reasonably, but is not to be extended to every imaginable instance, however remote from the legislative intent, which may fall within the mere letter of the ordinance.

United States v. Kirby, 7 Wall. 482, 19 L. ed. 278; Rutledge v. Crawford, 91 Cal. 533, 13 L. R. A. 761, 27 Pac. 779; Brewer v. Blougher, 14 Pet. 178, 10 L. ed. 408; Donnell v. State, 2 Ind. 658; State v. Clark, 29 N. J. L. 96; Pixiey v. Western P. R. Co. 33 Cal. 183, 91 Am. Dec. 623; Holmes v. Paris, 75 Me. 561; Smith v. People, 47 N. Y. 330; Russell v. Farquhar, 55 Tex. 359; ElectroMagnetic Min. & Development Co. v. Van Auken, 9 Colo. 204, 11 Pac. 80; Brown v. Thompson, 14 Bush, 538, 29 Am. Rep. 416; Com. v. Adcock, 8 Gratt. 661; Taylor v. Taylor, 10 Minn. 120, Gil. 81; Doles v. Hilton, 48 Ark. 308, 3 S. W. 193.

It is not necessary in the complaint to negative the "existence" not within the legislative intent.

United States v. Kirby, 7 Wall. 482, 19 L. ed. 278; People v. West, 106 N. Y. 297, 60 Am. Rep. 452, 12 N. E. 610.

The purpose or intent on the part of the person giving away a transfer is not a necessary part of the statutory offense.

People v. West, 106 N. Y. 297, 60 Am. Rep. 452, 12 N. E. 610; Powell v. Pennsylvania, 127 U. S. 678, 32 L. ed. 253, 8 Sup. Ct. Rep. 992, 1257; People v. O'Brien, 96 Cal. 177, 31 Pac. 45.

There is no incompatibility between the character of the same act as a breach of contract, and its character as a crime.

Re Debs, 158 U. S. 565, 39 L. ed. 1092, 15 Sup. Ct. Rep. 900.

There is no invasion by ordinance of right of property, having regard to the nature and purpose of the transfer.

Hibbard v. New York & E. R. Co. 15 N. Y. 466; People v. West, 106 N. Y. 297, 60 Am. Rep. 452, 12 N. E. 610.

The control of the subject-matter of transfers, within the lines of the ordinance, is justified by police power. Analogies are afforded by "scalpers' cases."

Burdick v. People, 149 Ill. 600, 24 L. R. A. 152, 36 N. E. 948; Fry v. State, 63 Ind. 552, 30 Am. Rep. 238; Nashville, C. & St. L. R. Co. v. McConnell, 82 Fed. Rep. 65; State v. Corbett, 57 Minn. 345, 24 L. R. A. 498, 4 In

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Sec. 2. Every person, firm, and corporation operating street cars within the city and county of San Francisco that receives transfers as fare from passengers shall take said transfers from the passengers who received the same within or upon the car to which the passengers are transferred, and not elsewhere.

Sec. 3. No person, except a duly authorized conductor or agent of a person, firm, or corporation operating a line of street railroad within the city and county of San Francisco, shall within said city and county issue, deliver, give or sell, or offer to issue, deliver, give or sell, to any other person whatsoever, any transfer, transfer check, or ticket, issued or purporting to be issued by such person, firm, or corporation so operating such line of street railroad, for passage on any street railroad car or line.

and unreasonable; and finally, that it is an illegal attempt to enforce the obligations or assumed obligations of private civil contracts by penal legislation.

As to the nature of the "transfer," it is well recognized and admitted that the street railroads of the city and county of San Francisco have provided that passengers upon their cars who have paid the usual fare may receive transfers entitling them to leave the car at a certain designated point, and there, within a limited time, and without further payment of fare, but upon presentation and delivery of the transfer check, pursue their travels upon the connecting line. It is, then, company that he may thus transfer to and a part of the passenger's contract with the ride upon the connecting road. As conditions of this privilege, it is further a part of the contract that the passenger shall board the cars of the connecting line at a designated point, and within a time limit after the issuance to him of the transfer indicated transfer shall not be transferable or assignby a punch mark upon its face, and that the able to another, but, if used at all, shall be used by the person to whom it is issued. The paper slip or ticket designated a “transfer," when in the hands of the passenger, thus serves a twofold purpose: First, to the passenger, as an evidence of his contract by which he is entitled to continue his journey upon the connecting road; and, second, to the company, as a means of identification afforded to its conductors and servants, by which they may know that the passenger presenting the transfer is entitled to ride without further payment of fare. Such being the nature of the contract between the company and its passenger, consideration may be paid to the objections raised against the validity of this ordinance. The power of the general legislature acting within constitutional limitations, to make penal an act theretofore indifferent or even innocent, may not be doubted. People v. West, 106 N. Y. 293, 60 Am. Rep. 452, 12 N. E. 610. This, however, is not a statute of the general legislature, but a municipal bylaw; and while it is true that article 11, § 11, of the Constitution of this state expressly confers upon a city the power to make

and enforce within its limits "all such local, police, sanitary, and other regulations as are not in conflict with general laws," this lan

Sec. 4. Every person, firm, or corporation violating the provisions of this order shall be deemed guilty of a misdemeanor, and up-guage is not to be construed as enlarging the on conviction thereof shall be punished by a fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment.

Lorenzen was charged with having given and disposed of a transfer in violation of §

3 of the ordinance.

powers which municipalities theretofore enjoyed in these respects, but it is merely an they possessed by implication. People ex rel. express grant of a power which formerly

Wilshire v. Newman, 96 Cal. 607, 31 Pac.

564. The ordinance in question, then, is to be scanned and judged like any other municipal ordinance. So judging it, regard is to Against the validity of this ordinance it be had to the end sought to be accomplished, is urged that it violates the guaranty of per--whether that end be a reasonable one, and sonal liberty contained in the Constitutions of the United States and of the state of California (U. S. Const. Amend. 14, § 1; Cal. Const. art. 1, § 1); that it is an unconstitutional interference with a right of private property; that it is arbitrary, oppressive,

one within the powers of the municipality to accomplish; and regard is also to be had to the question whether the mode adopted to accomplish the end is itself reasonable or unreasonable. Street-car companies are public utilities, which are almost necessities to

As

our present mode of life. While in one as- | property is the right to sell, give it away, or pect their ownership is private, and they are otherwise dispose of it. This, however, is operated for private gain, in another they are but partially true. A man may not be deservants of the people, and the lawmaking prived of his property or of his property powers reserve and freely exercise the right rights for any private considerations whatto regulate and control them in their opera- ever, nor for considerations of public good, tions. It is upon the theory, and only upon without compensation first made; but the the theory, that they may be operated for the legislature has the unquestioned right, and public good, that a franchise permitting their every day exercises it, of restricting the use existence may be given; and the power to to which private property may be put. pass reasonable regulations for their opera- is said in Burdick v. People, 149 Ill. 600, 24 tion and management is expressly granted by L. R. A. 152, 36 N. E. 948: "The franchises § 503 of our Civil Code. Ît is strictly with- of railroads acting under charters or acts of in the power of the municipal authorities of incorporation are of a public nature, so far the city, and properly within the exercise of as the safety, convenience, and comfort of their duties, to pass any reasonable regula- passengers are concerned. The reasonable tions affecting street-car lines, to remedy a regulations affecting the conduct of such threatened or actual interference with the public employments are fit subjects for legiscomfort, convenience, and general welfare of lative action. The lawmaking power may the traveling public. provide means for remedying such evils as in its opinion may exist in the management of these public agencies of transportation, and in doing so it may sometimes impose restrictions which are deemed to be necessary upon the use and enjoyment of property. A man is not deprived of his property unless it is taken away from him so that he is devested of his title and possession. To limit the use and enjoyment of property by legislative action is not to take it away from the owner, when the property whose use and enjoyment are so limited is invested in a business aifected with a public use, or is used as an accessory in carrying on such business." But, aside from this, in the case of this ordinance it cannot be perceived that its terms limit or circumscribe any of the just and legal rights which a passenger receiving a transfer theretofore enjoyed. In receiving it, he took it under the conditions above set forth. It was a part of his contract that, if used, he alone would use it; and if he sold it or assigned it, or gave it to another, to the end that that other might use it, he clearly violated his contract, and put a fraud upon the company. A court will not hear with much patience one insisting upon his right to violate his contract and consummate a fraud. The ordinance in question, therefore, so far as the passenger is concerned, leaves him all the rights which theretofore he enjoyed under his contract, and interferes in no way with any legal or legitimate use which at any time he could have made of the transfer. At the most, so far as he is concerned, it has but made penal what before was illegal and against good morals.

It is urged against this ordinance that it is an attempt by penal legislation to enforce a private civil contract; in other words, that it is an attempt to compel the passenger who has received his transfer to use it within the limits of his contract, and not to violate that contract by giving it to a person who may make improper use of it. Could it be perceived that this was the only purpose, or even the main purpose, of the ordinance in question, we should be inclined to hold that the objection was fatal, but we cannot perceive that its main object or de- | sign was to accomplish this result. Rather, we think it clear that its primary object is to protect and advance the convenience and welfare of the traveling public; for if, to the legislative mind, an abuse of the transfer system has grown up, the inevitable result of such unrestricted abuse must be one of two things, either that transfers would be discontinued entirely, to the material injury of the community, or the transfer system would be hedged and safeguarded by onerous conditions and requirements for the protection of the company, which would work great inconvenience to the passengers. It was certainly right for the supervisors, if they saw or anticipated the existence of such an evil, to destroy or avert it by proper legislation tending to correct the abuse; and it is no objection to the validity of an ordinance designed for this purpose that it may incidentally tend to prevent frauds, and compel men honestly to abide by their contracts. It is concluded, therefore, upon this point, that the purpose of the legislation, to promote the convenience and welfare of the traveling public in regulating the business of the street-car companies of San Francisco in their dealings with their passengers, is legitimate, and within the scope of the powers expressly granted to the municipal authorities.

But are the means adopted to accomplish this end unreasonable or oppressive, or in violation of any constitutional rights of the citizen? It is here first insisted by petitioner that the transfer issued to him by the company is his property, and that an essential and inalienable right to the enjoyment of

Finally, it is urged against the ordinance that by the generality of its terms it is unreasonable and oppressive; that every person who, taking a transfer, shall hand it to anyone other than the person authorized to receive it, no matter how innocent the act may have been in fact or intent, is guilty of a misdemeanor. In illustration of the position it is said that if the conductor should give to the father traveling with his family three or four transfers, and he in turn should hand them over to his wife and children, he would at once become amenable to the ordinance; that so, too, would be the passenger

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