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[220 U.S. 590, 591] Messrs. Frederic D. McKenney, John Spalding Flannery, William Hitz, Edward A. Moseley, and A. J. Truitt for plaintiff in error.
Messrs. Marlin E. Olmsted, A. C. Stamm, and John G. Whitmore for defendant in error.
This action was brought in a Pennsylvania court to recover for wrongfully causing the death of Adam M. Schlemmer, plaintiff's intestate, as a result of injuries received while in the employ of the railroad company. The case has been once before in this court, and is reported in 205 U.S. 1 , 51 L. ed. 681, 27 Sup. Ct. Rep. 407. The injury was received while Schlemmer, an employee of the defendant railroad company, was endeavoring to couple a shovel car to the caboose of one of the railroad trains of the defendant company.
Before the case first came here, the supreme court of Pennsylvania had held that the plaintiff could not recover damages because of the contributory negligence of the deceased. 207 Pa. 198, 56 Atl. 417. This court reversed the supreme court of Pennsylvania, and remanded the case for further proceedings in conformity with the opinion of this court.
For a proper understanding of the case a brief state- [220 U.S. 590, 592] ment of the facts will be necessary. The shovel car was not equipped with an automatic coupler, as required by the act of March 2, 1893, chap. 196, 2, 27 Stat. at L. 531, U. S. Comp. Stat. 1901, p. 3174, and that fact was the basis of the action for damages. The shovel car had an iron drawbar, weighing somewhere about 80 pounds, protruding beyond the end of the shovel car. The end of this drawbar had a small opening, or eye, into which an iron pin was to be fitted when the coupling was made; this was to be effected by placing the end of the drawbar into the slot of the automatic coupler with which the caboose was equipped. Owing to the difference in the height, the end of the shovel car would pass over the automatic coupler on the caboose in case of an unsuccessful attempt to make the coupling, and the end of the shovel car would come in contact with the end of the caboose.
Plaintiff's intestate was an experienced brakeman, having been in the service fifteen or sixteen years. At the time when he undertook to couple the train with the shovel car to the end of the caboose, he went under the end of the shovel car, and attempted to raise the iron drawbar so as to cause it to fit into the slot of the automatic coupler on the caboose. While so doing, his head was caught between the ends of the shovel car and the caboose, and he was almost instantly killed. This happened between 8 and 9 o'clock on an evening in the month of August, and while dusk had gathered, it was not very dark, and the testimony tends to show that the situation was plainly observable.
When this case was first before the supreme court of Pennsylvania, that court expressed doubt as to whether the act of Congress applied in actions of negligence in the courts of Pennsylvania, and the judgment on the nonsuit in the court below was sustained because of the contributory negligence of the deceased.
This court held that the shovel car was in course of [220 U.S. 590, 593] transportation between points of different states, and therefore was being used in interstate commerce; that the shovel car was a car within contemplation of 2 of the act of Congress; that 8 of that act had deprived the company of the defense of assumed risk on the part of an employee; that the ruling in the Pennsylvania court upon contributory negligence was so dependent upon an erroneous construction of the statute that it could not stand. 205 U.S. 1, 13 , 51 S. L. ed. 681, 686, 27 Sup. Ct. Rep. 407. As the alleged right to recover was under a Federal statute, alleged to have been improperly construed against the plaintiff in error, the case presented a claim of Federal right, a denial of which was reviewable here, and the case, for the reason stated, was reversed by this court, and sent back for further proceedings in conformity with the opinion of this court.
We find no occasion to depart from the former decision, and will proceed to examine the record as now presented, which, in material respects, differs from the one previously before the court. It is first objected by the plaintiff in error that the supreme court of Pennsylvania remanded the case to the lower court for trial contrary to the mandate sent down upon the reversal by this court. The supreme court of Pennsylvania remitted the case, after receipt of the mandate from this court, to the lower court, to be retried 'on the settled principles of contributory negligence, as heretofore declared in the decisions of this court,'-supreme court of Pennsylvania. The counsel for plaintiff in error moved the supreme court of Pennsylvania to amend its judgment and remittitur so as to conform with the mandate of this court, which motion was overruled.
We are of opinion that the order and remittitur of the supreme court of Pennsylvania, in compliance with the mandate of this court, should have required the further proceedings to conform to the opinion of this court, as its mandate required, and as was within the authority of this [220 U.S. 590, 594] court, the matter involved being a right of Federal creation within the ultimate protection of this court.
If an examination of the record indicated that, by reason of this mandate, the subsequent proceedings in the state court had operated to deprive the plaintiff in error of the benefit of a trial under the Federal statute properly construed, we should be constrained to reverse the case. But an examination of the record discloses that the trial judge regarded the decision of this court as settling the right of the plaintiff in error to rely upon the Federal statute in question, and as conclusive of the fact that the shovel car was being employed in interstate commerce at the time of the injury, and was a car within the meaning of the act, and that assumption of risk was no defense to the action. So, it does not appear that the form of mandate sent down by the supreme court of Pennsylvania, after the case was reversed here, worked to the prejudice of the plaintiff in error.
The trial court submitted the case to the jury upon the issues joined under the Federal statute, including the question whether the plaintiff's intestate, at the time of the injury, had been guilty of contributory negligence. Under these instructions the jury found a verdict for the plaintiff.
The case is now here upon a petition in error to reverse this judgment of affirmance. The statute at the time of the injury complained of took away assumption of risk on the part of the employee as a defense to an action for injuries received in the course of the employment. The defense of contributory negligence was not dealt with by the statute.
When the case was here before, we did not find it necessary to pass upon the question whether contributory negligence on the part of an injured employee would be a defense to an action under the law as it then stood, for, upon the record as then presented, the court was of opinion that to sustain the defense of contributory negligence would amount to a denial to the plaintiff of all benefit of the statute which made the assumption of risk no longer a defense.
By the 3d section of the act of April 22, 1908, 35 Stat. at L. 65, chap. 149 U. S. Comp. Stat. Supp. 1909, p. 1171, amending the employers' liability act, no employee injured or killed is to be held guilty of contributory negligence in any case where the violation by a common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee. [220 U.S. 590, 596] tion of risk sometimes shades into negligence as commonly understood, there is, nevertheless, a practical and clear distinction between the two. In the absence of statute taking away the defense, or such obvious dangers that no ordinarily prudent person would incur them, an employee is held to assume the risk of the ordinary dangers of the occupation into which he is about to enter, and also those risks and dangers which are known, or are so plainly observable that the employee may be presumed to know of them, and if he continues in the master's employ without objection, he takes upon himself the risk of injury from such defects. Choctaw, O. & G. R. Co. v. McDade, 191, U. S. 64, 67, 68, 48 L. ed. 96, 100, 101, 24 Sup. Ct. Rep. 24, and former cases in this court therein cited.
In the present case, the statute of Congress expressly provides that the employee shall not be deemed to have assumed the risk of injury if such is occasioned by his continuing in the employ of the carrier after the unlawful use of the car or train in the failure to provide automatic couplers has been brought to his knowledge. Therefore, when Schlemmer saw that the shovel car was not equipped with an automatic coupler, he would not, from that knowledge alone, take upon himself the risk of injury without liability from his employer.
But there is nothing in the statute absolving the employee from the duty of using ordinary care to protect himself from injury in the use of the car with the appliances actually furnished. In other words, notwithstanding the company failed to comply with the statute, the employee was not, for that reason, absolved from the duty of using ordinary care for his own protection under the circum- [220 U.S. 590, 597] stances as they existed. This has been the holding of the courts in construing statutes enacted to promote the safety of employees. Krause v. Morgan, 53 Ohio St. 26, 40 N. E. 886; Holum v. Chicago, M. & St. P. R. Co. 80 Wis. 299, 50 N. W. 99; Grand v. Michigan C. R. Co. 83 Mich. 564, 11 L.R. A. 402, 47 N. W. 837; Taylor v. Carew Mfg. Co. 143 Mass. 470, 10 N. E. 308. And such was the holding of the court of appeals of the eighth circuit, where the statute now under consideration was before the court. Denver & R. G. R. Co. v. Arrighi, 63 C. C. A. 649, 129 Fed. 347.
In the absence of legislation at the time of the injury complained of, taking away the defense of contributory negligence, it continued to exist, and the Federal question presented upon this record is: Was the ruling of the state court in denying the right of recovery upon the ground of contributory negligence, in view of the circumstances shown, such as to deprive the plaintiff in error of the benefit of the statute which made assumption of risk a defense no longer available to the employer? To answer this question we shall have to look to the testimony adduced at the trial, all of which is contained in the record before us. As we have already said, the testimony shows that the plaintiff's intestate was an experienced brakeman. A witness, who is uncontradicted in the record, testified that just before Schlemmer got out of the caboose, when he saw the train backing up, he was told: 'We had better shove that up by hand, the same as we did in Bradford. That is a dangerous coupling to make.' (At Bradford the method of making the coupling was by means of pushing the caboose up against the train, instead of backing the train against the caboose.) To this Schlemmer replied, with emphasis, 'Back up.' He then proceeded to make the coupling, with the result stated.
Another witness, the yard conductor, testified without contradiction, that just before the cars got together he walked up to Schlemmer, and told him they had better shove the caboose on by hand, to which he answered: [220 U.S. 590, 598] 'Never mind, I will make this coupling.' To which the witness answered: 'Well, you will have to get down.' Witness testified that he called to him twice to get down, the last time not more than a second, possibly a couple of seconds, before he was injured. This witness furthermore testified that he had a sufficient crew to push the caboose up by hand, that there was plenty of force to shove the caboose up in that way; that that was a great deal safer way to make the coupling than backing onto the caboose. The testimony further shows that there was plenty of room under the projection of the shovel car to operate the drawbar and raise it up. In fact, in this manner, the coupling was made a few minutes after the unfortunate occurrence which resulted in the death of the deceased.
As the record is now presented, there is no proof in the case that the deceased was ordered to make the coupling in the manner he did, and there is testimony to the effect that, just before the injury, the conductor in charge of the train said to the deceased: 'Mr. Schlemmer, you be very careful now, and kepp your head down low, so as not to get mashed in between those cars.' He said he would.
In view of this record we cannot say that the court, in denying a recovery to the plaintiff, upon the ground of contributory negligence of the deceased, denied to her any rights secured by the Federal statute. Entirely apart from the question of assumption of risk, which, under the law, could not be a defense to the plaintiff's action, as the law then stood, there remained the defense of contributory negligence.
After an examination of the record as now presented, containing testimony not adduced at the former trial, we are constrained to the conclusion that there was ample ground for saying, as both the trial court and the supreme court of the state of Pennsylvania did, that the decedent met his death because of his unfortunate attempt to make the coupling in a dangerous way, when a safer way was at [220 U.S. 590, 599] the time called to his attention. Furthermore, he was injured in spite of repeated cautions, made at the time, as to the great danger of being injured if he raised his head in attempting to make the coupling in the manner which he did.
As we have said, the Federal question in the record, and the only one which gives us jurisdiction, is: Did the trial and judgment deprive the plaintiff in error of rights secured by the Federal statute? The views which we have expressed require that the question be answered in the negative.

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Getting an Injury Settlement is No Wining Lottery Ticket.
After a serious injury the victims are taken by ambulance to the hospital, right? In fact the victims of a really serious injury may not be aware they are going to the hospital. And the healing begins at the hospital and probably involves a surgeon, operating rooms, recovery resources, other facility, etc., etc. Everyone wants to be paid for the good work they have done. Hopefully, there is a large settlement, to go around. Absent a settlement of the right size or good health insurance the debt is on the victim. Anohter round of greif starts when the debt is on the victium.
You don’t have to be a economist to see the connection between medical debt, bankruptcy.
There are two primary reasons these people go bankrupt. They either can’t get health insurance, or they can’t get their insurance company to cover their medical bills .A 2009 Harvard study showed a 50% rise in medical bankruptcy (bankruptcies linked to illness and medical bills) between 2001 and 2009. More often than not, the peopled who filed for personal bankruptcy actually had health insurance — but it wouldn’t cover their bills.
The first cycle starts as the victuim uses up his savings and assets to pay the bills. Then he uses up his creidit and his credit goes bad. A person with bad credit is viewed with suspicion and is charged significantly more for becouse of the procived greater risk of default,”.
victims are offtin especially distraught over Their loss of reputation, having done nothing wrong exset get hurt. Credit carefully nurtured for years, is destroyed overnight. At this point paying the bills becomes imposible and collection starts.
Counseling services are available to help people having trouble budgeting money and paying bills. Credit unions, cooperative extension offices, military family service centers and religious organizations are among those that may offer free or low-cost credit counseling.
Local, nonprofit agencies that provide educational programs on money management and help in developing debt payment plans operate under the name Consumer Credit Counseling Service (CCCS). They are members of the National Foundation for Consumer Credit (NFCC). To locate the agency closest to you, call 1-800-388-2227 or visit www.nfcc.org.
Several national nonprofit organizations also provide information and assist people with debt problems via the phone and Internet.
InCharge Institute of America. Visit www.incharge.org or call 1-800-565-8953.
Money Management International. Visit www.moneymanagement.org or call 1-866-899-9347.
Myvesta. Visit www.myvesta.org or call 1-800-680-DEBT.
What services do you offer? Look for an organization that offers budget counseling and money management classes as well as a debt-management plan.
Do you offer free information? Avoid organizations that charge for information or make you provide a lot of details about your problem first.
What are your fees? Are there set-up and/or monthly fees? A typical set-up fee is $10. If you're paying a lot more, you may be the one who's getting set up.
How will the debt management plan work? What debts can be included in the plan and will you get regular reports on your accounts?
Can you get my creditors to lower or eliminate my interest and fees? If the answer is yes, contact your creditors to verify this.
What if I can't afford to pay you? If an organization won't help you because you can't afford to pay, go somewhere else for help.
Will you help me avoid future problems? Getting a plan for avoiding future debt is as important as solving the immediate debt problem.
Will we have a contract? All verbal promises should be in writing before you pay any money.
Are your counselors accredited or certified? Legitimate credit counseling firms are affiliated with the National Foundation for Credit Counseling or the Association of Independent Consumer Credit Counseling Agencies.
Big upfront fees. A reputable credit counseling agency will send free information about itself and the services it provides without requiring you to provide any details about your situation.
Unrealistic promises. Some companies falsely claim they can solve problems for pennies on the dollar or remove negative information from your credit record.
Check with your local consumer protection agency and the Better Business Bureau to see if any complaints have been filed about the company.
The Fair Debt Collection Practices Act applies to those who collect debts owed to creditors for personal, family and household debts. These include car loans, mortgages, charge accounts and money owed for medical bills. A debt collector is someone hired to collect money you owe.
Within five days after a debt collector first contacts you, the collector must send you a notice that tells you the name of the creditor, how much you owe, and what action to take if you believe you don't owe the money.
If you owe the money or part of it, contact the creditor to arrange for payment.
Threaten to have money deducted from your paycheck or to sue you—unless the collection agency or creditor intends to do so and it is legal.
To file a complaint, contact your state or local consumer protection agency and the Federal Trade Commission.
By Phone: Call toll-free 1 (800) FED-INFO and speak to specially trained staff who can answer questions in English and Spanish about all aspects of the Federal government. Call between 8 a.m. and 8 p.m. Eastern Time to speak to a live agent. Recorded information on popular topics is available around the clock. You can also search our online knowledgebase at www.info.gov.
USA.gov - USA.gov is the “Front Door” to government information, services, and transactions. This site pulls together more than 180 million Federal, state, and local government web pages. Here, citizens can get easy-to-understand information and services from the government 24 hours a day, seven days a week. They can also use an e-mail form to send questions and comments in English and Spanish for a response within two business days.
Pueblo.gsa.gov - At www.pueblo.gsa.gov, consumers can read, print out, or save the current Consumer Information Catalog and the full text of all the publications listed in it. Consumers can access additional information on a wide range of subjects by clicking on different topic headings.
Kids.gov - Kids.gov is the official interagency children’s portal to the U.S. government. The site features more than 400 kid-friendly links in one easy-to-find place. The links are safe and age-appropriate. Kids can learn about everything from fighting crime and exploring the world to music and space.
In Print: FCIC also publishes both the Consumer Action Handbook and the Consumer Information Catalog, which lists more than 200 free and low-cost Federal booklets. Topics include health, Federal benefits, money management, housing, employment, small business, education, food and nutrition, cars, travel, consumer protection and more.
Today, there are legally accepted means for measuring loss of credit through the procedure of Credit Damage Measurement (CDM). CDM is fast becoming a potent tool for recoverable credit damage awards when the damage is not self-inflicted. Previously, both judge and jury, and especially the insurance companies, refused to acknowledge CDM claiming it was speculative because they could not define it as tangible damage. However, in case after case, victims of credit damage who use the CDM method are getting compensation for credit loss. Many factors are changing the old mindset including credit bureau technology improvements, the application of the Fair Credit Reporting Act (FCRA), risk scoring sophistication, and the development of CDM as an objective, repeatable method that measures out-of-pocket damage reliably.
The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) (Pub.L. 109-8, 119 Stat. 23, enacted April 20, 2005), was a law enacting several significant changes to the U.S. Bankruptcy Code. It was passed by the 109th United States Congress on April 14, 2005 and signed into law by President George W. Bush on April 20, 2005. Most provisions of the act apply to cases filed on or after October 17, 2005. Referred to colloquially as the "New Bankruptcy Law", the Act of Congress attempts to, among other things, make it more difficult for some consumers to file bankruptcy under Chapter 7; some of these consumers may instead utilize Chapter 13.
Only debtors whose monthly income is higher than the median income of their state, as calculated by the Code, are subject to being found abusive under § 707(b)(2). Debtors whose income falls below the median income figure may be in violation of the means test, however no party is permitted to file a motion in order to find abuse under § 707(b)(2), [see 11 U.S.C. § 707(b)(7)]. This creates a means test "safe harbor" for debtors below the state's median income figure.
Current monthly income is defined in 11 U.S.C. § 101(10A) as the monthly average of the income received by the debtor (and the debtor’s spouse in a joint case) during a defined six-month time period prior to the filing of the bankruptcy case. Some narrow classes of payments, for example, social security, are excluded from these figures. Notably, the average income may be higher or lower than the debtor's actual income at the time of filing for bankruptcy. This has led some commentators to refer to the bankruptcy code’s “current monthly income” as “presumed income.” It should be noted that if the debtor's debt is not primarily consumer debt, then the means test is inapplicable.
The applicable median income figure is adjusted by family size. Generally, the larger the family, the greater the applicable median income figure and the more money the debtor must earn before a presumption of abuse arises. A chart of the most recent applicable median incomes by state can be found at the US Trustee’s website.
This code section then requires a comparison between the debtor’s “current monthly income” and the median income for the debtor’s state. If the debtor’s income exceeds the median income, then the debtor must apply the means test.
An itemized list of the applicable IRS living standards can be found at the US Trustee’s website.
A “presumption of abuse” will arise if: (1) the debtor has at least $166.67 in current monthly income available after the allowed deductions (this equals $10,000 over five years) regardless of the amount of debt, or (2) the debtor has at least $100 of such income ($6,000 over five years) and this sum would be enough to pay general unsecured creditors more than 25% over five years. For example, if a debtor had exactly $100 of “current monthly income” left after deductions and owed less than $24,000 in general unsecured debt, then the presumption of abuse would arise, [see 11 U.S.C. § 707(b)(2)(A)(i)].
If a presumption of abuse is found under the means test, it may only be rebutted in the case of "special circumstances", [see 11 U.S.C. § 707(b)(2)(B)].
Until recently lawyers for victims of credit damage had little possibility to collect for damages beyond medical treatment, lost wages and property loss. Insurance companies threw up their hands in sympathy, claiming victims can only be compensated for what can be measured — tangible goods and services. But, what happens when the victim has lost considerable time from work, the family bank is broke and monthly payments on mortgages, car loans and credit cards payments are missed? Regardless of the haggling between lawyers and insurance companies, it’s the credit victim who ends up having to live with a bad credit rating.


Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction.
Lower court decision: United States v. Los Rovell Dahda, 853 F.3d 1101 (10th Cir. 2017).
This case will of course be of interest to federal criminal defense practitioners. But the Court’s decision in this case could also affect Wisconsin law. Our wiretapping statutes are based on the federal statutes and our courts have long looked to federal legislative history and intent and federal case law when applying our statutes. State v. House, 2007 WI 79, ¶14, 302 Wis. 2d 1, 734 N.W.2d 140.
The Tenth Circuit agreed the orders in this case were facially invalid because they authorized interception outside of the court’s territorial jurisdiction, but it refused to suppress the evidence obtained under the orders. It took its lead from United States v. Chavez, 416 U.S. 562, 574-75 (1974), which held that not every failure to comply fully with any requirement in the wiretap statutes would render the interception of wire or oral communications unlawful. The Tenth Circuit held that suppression is required only if the territorial jurisdictional requirement is one of “those statutory requirements that directly and substantially implement[s] the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device,” quoting United States v. Giordano, 416 U.S. 505, 527 (1974), and concluded the jurisdictional limitation doesn’t advance the statute’s “core concerns” about the privacy of wire and oral communications and establishing uniformity in the circumstances and conditions under which the interception of wire and oral communications is authorized.
Dahda criticizes this result because, he argues, Chavez and Giordano address suppression under § 2518(10)(a)(i), when there’s been unlawful interception generally; here there was interception under a facially insufficient authorization, and suppression for that kind of error is expressly provided for under a separate statute, § 2518(10)(a)(ii). Most other circuit courts have taken the same position as the Tenth Circuit, the Seventh among them. United States v. Lawson, 545 F.2d 557, 562 (7th Cir. 1975). On the other hand, one circuit has agreed with Dahda’s argument that the “core concerns” approach has no application to violations of the territorial jurisdiction limitation, United State v. Glover, 736 F.3d 509, 515 (D.C. Cir. 2013), and another has held (albeit it in an opinion that was later withdrawn) that the jurisdictional limitation implicates a core concern, so violating it leads to suppression, United States v. North, 728 F.3d 429, 437 (5th Cir. 2013), opinion withdrawn, suppression ordered on other grounds, 735 F.3d 212 (5th Cir. 2013). A lopsided split, but one the Court will now resolve.
As noted, the decision could affect state practice, in two ways. First, our supreme court has applied the Chavez/Giordano approach in applying § 968.30(9)(a) (our counterpart to § 2518(10)(a)) to decide whether to suppress evidence obtained as a result of a violation of Wisconsin’s wiretap statutes. See House, 302 Wis. 2d 1, ¶¶34-60 (holding that suppression was not required where application for interception included both crimes for which interception is authorized and crimes for which interception is not authorized). If this decision expands or contracts Chavez or Giordano, our test for suppression will likely change in the same way.
Second, § 968.28 requires the order for interception to be issued by “the chief judge of the judicial administrative district for the county where the interception is to take place….” This looks like a territorial jurisdiction limitation comparable to one in § 2518(3), as it seems to say an authorization from the chief judge of one administrative district can’t be used to intercept a communication made in a different district. A limitation like this isn’t a problem when communication is by stationary land line; but with cell phones being used by people crossing administrative district lines, we may one day see a case like Dahda’s involving interception of communications from outside an authorized geographic area, and the questions of whether the interception is authorized, and whether its contents should be suppressed, will be presented.


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our own settled law, but also with comparative liability principles that govern virtually all other jurisdictions.
premises defect claim for trial. Accordingly, I respectfully dissent.
in which Chief Justice Jefferson and Justice Johnson joined.
and improvidently reintroduce the discredited no-duty concept back into Texas premises liability jurisprudence.
correctly remanded Arthur Moritz's premises defect claim for trial. Accordingly, I respectfully dissent.
that have been settled in our state for more than thirty years.
Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 225B26 (Tex. 1999) (per curiam); Hoechst‑Celanese Corp. v.
523, 528 (Tex. 1997); Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex. 1993); Redinger v. Living, Inc., 689 S.W.
conditions owe a commensurate duty to their shopper customers. See Brookshire Grocery Co. v. Taylor, 222 S.
(Tex. 1983). Considering all of this, it is difficult to see why the Court would treat Moritz differently.
the owner=s duty disappears entirely.
use of negligent activity arguments in a premises defect claim fails to survive close scrutiny.
premises condition or to make it safe.
of which the invitees know, or of which they are charged with knowledge, then the occupier owes them "no duty"
of law he will be charged with knowledge and appreciation thereof.
negligent is still entitled to have his negligence compared with that of the other participants in the event.
a matter which bears upon his own contributory negligence. . . .
openly and obviously, is a matter that bears upon his own negligence; it should not affect the defendant's duty.
appreciation) as a total bar is incompatible with the legislative purpose of the comparative negligence statute.
and obvious,@ that condition could be weighed against Moritz only on the question of comparative negligence.
that fault question is no longer a part of the duty analysis.
Dixon v. Van Waters & Rogers, 682 S.W.2d 533 (Tex. 1984) (per curiam). See ___ S.W.3d at ___ & nn.21B28.
separate burden to prove knowledge of danger on the part of the owner.
underlying obligation to establish a duty on the part of a defendant and a violation of that duty.@); Delgado v.
lacked knowledge and appreciation, he must still prove, however, that the defendant had a duty and breached it.
the part of a defendant and a violation of that duty.@); Thomas v. Internorth, Inc., 790 F.2d 1253, 1256 (5th Cir.
because of no control over the allegedly negligent activity); Shell Oil Co. v. Khan, 138 S.W.3d 288, 295B98 (Tex.
2004) (no duty because of no control over the allegedly defective premises); Coastal Marine Serv. of Tex., Inc.
comprehensive and explicit review of first principles.
notCGE=s defense would fail under Delhi-Taylor because GE warned neither Moritz nor his employer.
and obvious limitation in Delhi-Taylor was abolished by the Legislature=s adoption of comparative negligence.
recovery when compared to the defendant=s negligence, it will not defeat the claim at the duty stage of a lawsuit.
recovery in proportion to the share of responsibility the factfinder assigns to the plaintiff . . . .
Id. ' 7 (emphasis added). Never does the Restatement distinguish duties by identifying independent contractors.
determining the duty of the possessor, or whether he has acted reasonably under the circumstances.
injured. If it is found that this could reasonably be anticipated by A, A is subject to liability to B.
Id. ' 343A cmt. f, illus. 3. This case easily fits that illustration.
awareness of the danger posed by the ramp.
premises defect claim for trial.
not true of shoppers, sightseers, or other business invitees.@).
throughout the remainder of this opinion, I refer to GE, TCLP, and Ellis collectively as GE.
premises liability claim is similarly unsupported. See ___ S.W.3d at ___.
surroundings, and of any danger involved in them.@); see also id. ' 464.
percentage reduction. They continue to constitute an absolute bar to recovery.
Restatement (Third) of Torts: Apportionment of Liability ' 7 cmt. k (2000).
 See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854B55 (1992).
No. 98-40228, 1998 WL 723859, at *1 (5th Cir. Oct. 5, 1998) (recognizing abrogation). Robert E. McKee, General Contractor, Inc. v.
Patterson, 271 S.W.2d 391 (Tex. 1954), was also expressly abrogated by Parker, 565 S.W.2d at 513, 516B19. See Edco Prod., Inc.
v. Hernandez, 794 S.W.2d 69, 75 (Tex. App.CSan Antonio 1990, writ denied) (recognizing abrogation). Western Auto Supply Co. v.
Campbell, 373 S.W.2d 735 (Tex. 1963), merely followed Halepeska and McKee, and Hall v. Medical Building of Houston, 251 S.W.
Carbide Corp. v. Burton, 618 S.W.2d 410, 414 (Tex. Civ. App.CHouston [14th Dist.] 1981, writ ref=d n.r.e.); Baca v. Sand, Inc., 600 S.
whether the premises occupier was negligent.@).
and it is our view that the Delhi‑Taylor rule was necessarily set aside by Parker.
595 S.W.2d at 581B82 (citations omitted).
230 (1971 & Supp. 2008); 1 Texas Torts & Remedies 20.05[a] (J. Hadley Edgar Jr. & James B. Sales, eds. 2008); 4 Fowler V.
Keeton, Prosser & Keeton on the Law of Torts ' 61 (5th ed., Lawyer=s ed. 1984).

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The legal basis for the processing is art. 6 para. 1 sentence 1 lit. f GDPR. The legitimate interests pursued by us follow from the above-documented purposes of processing.
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art. 6
art. 6
art. 6
art. 6
art. 6
art. 77
art. 6
art. 21


UNITED STATES OF AMERICA and the Interstate Commerce Commission.
Argued October 29 and 30, 1913.
This is an appeal from a decree of the commerce court, dismissing appellant's petition in an action brought to have certain, regulations of the Interstate Commerce Commission relative to the method of keeping the accounts of carriers declared invalid, and to enjoin the enforcement thereof. 204 Fed. 641. The regulations are contained in the 'Classification of Expenditures for Additions and Betterments of Steam Roads,' effective July 1st, 1909, and the First Revised Issue thereof, effective July 1, 1910.
Appellant is engaged in interstate commerce. Its main line is about 786 miles in length, and extends from Kansas City to Port Arthur, on the Gulf of Mexico, traversing the states of Missouri, Kansas, Oklahoma, Arkansas, Louisiana, and Texas. The road was built years ago, when the country was heavily timbered and sparsely settled, and the traffic was correspondingly small. The traffic would not then support, nor could capital be obtained for, an expensively constructed road; and in consonance with the general practice in the development of the country, the road was built with rather heavy ruling grades. But it was not defectively or improperly constructed or located; it had substantially the same grades as other roads then constructed in the West; and it was adequate to serve the then-existing needs of the country. A railroad with heavy grades is, of course, more cheaply constructed than a road of low grades. And a road of heavy grades is generally adequate in a new country, where the volume of traffic offered is small, the train loads light, and the trains few.
The ruling maximum grade of appellant's line as originally constructed was 1 per cent; and in the mountain district as high as 1.35 per cent. The evidence is undisputed that it was properly located, well constructed, and ample for the needs of the country. In the course of time, with the development of the country, and the resultant increase in traffic, whereby the limit of the road's capacity was being approached, the conditions warranted and rendered desirable such additions or improvements as would enlarge the road's capacity, and permit traffic to be moved more rapidly and economically.
Two methods of increasing the capacity of the road were presented: one by doubletracking, the other by lowering the grades and thus permitting traffic to be moved more rapidly. The road was in active competition with powerful rivals operating in the same general territory; among them, the Southern Pacific, the Missouri, Kansas, & Texas, the Missouri Pacific, the St. Louis Southwestern, the Texas & Pacific, the St. Louis & San Francisco, the Atchison, Topeka, & Sante Fe, and the Rock Island. The character of the road as a trunk line, having a long average haul and the prevalence of low-class traffic,—timber, coal, oil, and like commodities, necessarily entailed a low average freight rate; its average rates per ton per mile being lower than those of any of its competitors above named.
Under these conditions the management found that the most desirable plan was to lower the grades of the road, and thus to increase its capacity, procure economy in operation, and render better service to the public. Two methods of reducing the grades at various points along the line were presented: one by raising or lowering the roadbed on the existing right of way; the other by the construction of short sections of new read in substitution for portions of the road, in instances where the same result could be thus obtained at less cost. The program of improvement contemplated, therefore, not only many changes on the original right of way, but also a number of changes by the substitution of short sections of road on new ground, where that method was more economical.
At the six sections of the road in question it was found by the estimates of the engineers that the cost of securing the required gradient upon the original roadbed would be $1,230,318.99; but that the same result could be obtained by means of re-locations upon adjacent land for a net expenditure of $629,399.74.
The actual expenditure on these six new locations, as ascertained on completion of the work (after the filing of the petition), was $763,798; and the testimony shows that had the work been done on the original roadbed the cost would have been increased over the estimates in an equal or greater proportion; the variation being due to increase in the cost of labor, materials, etc. For present purposes, the figures set forth in the petition are adopted.
The expenditure required to improve the property by bringing it to the desired grade of 5/10 of 1 per cent being deemed a capital expenditure, appellant's directors determined to finance the work by applying to it the proceeds of a bond issue. It is claimed to have been necessary to finance the improvements in this way if they were to be made at all, because the appellant did not have current earnings available for these improvements, and could not have financed its program, involving the revision of about 41 per cent of the entire line and an ultimate expenditure of several million dollars, in any other way than by raising capital for that purpose through the issuance of bonds.
In 1907, appellant began the payment of dividends at the rate of 4 per cent per annum upon its preferred stock, the total amount of which was $21,000,000, and has continued to pay such dividends each year until the present time. These dividends are noncumulative and are payable only out of the earnings of the current year. The fact that appellant had paid its dividends for several years was a factor in its credit. Preferred dividends having been established, it is claimed that their discontinuance would have affected the credit of the road so seriously that it would have been unable except on prohibitive terms to dispose of additional bonds as further money was required from time to time during the progress of the work. It is further claimed that appellant was able to finance its improvements only out of the proceeds of a bond issue; and that it could not have financed them at all except by adopting the economical method of making a considerable part of the grade reductions by means of changes off the line of the right of way.
Under the regulations in question, it was found that if the improvements had been made on the original right of way, the entries would have been made as above indicated. But, with respect to improvements made off the right of way, different treatment was prescribed. Here the appellant was not permitted to carry into its property accounts the full cost of the improvement, but was required first to deduct from the cost thereof the estimated replacement cost of the portions of track no longer used, the difference only being carried into the property accounts, and a sum equal to the estimated cost of replacing the old sections of track being charged to the operating expenses of that year.
'5. In case it becomes necessary directly in connection with betterment or improvement work to abandon any property, the cost of replacing the abandoned property in kind, plus the cost of removal, but less the value of salvage, should be charged to the appropriate accounts under Operating Expenses. In case, however, the amount so chargeable is large, and its inclusion in a carrier's operating expenses for a single year would unduly burden the operating expense accounts for that year, the carrier may, if so authorized upon application to the Interstate Commerce Commission, charge such cost to the Property Abandoned account provided in the Form of General Balance Sheet Statement, or to the reserve account mentioned in paragraph 6.
These are the regulations as they appeared in the Classification of 1909. In the First Revised Issue (1910) there were some slight changes, but none now important.
The petition sets forth the following as a second ground of complaint. As a part of its program of improvements, appellant is engaged in erecting a new and enlarged shop and terminal plant at Shreveport, upon a different location from that of the existing shop and terminal plant, which latter are incidentally to be abandoned. It is claimed that the present shop and equipment are not worn out or obsolete, but are in good condition, and capable, with ordinary running repairs, of performing for an indefinite time the functions for which they were originally constructed. Appellant desires to charge the estimated value of the abandoned shop and terminal plant, amounting approximately to $100,000, against its accumulated surplus as represented in its Profit and Loss Account. The regulations of the Interstate Commerce Commission relative to accounting, however, prohibit this charge, and require that the estimated replacement cost (less salvage) of the existing shop and terminal plant shall be charged to the Operating Expense Account. An injunction against the enforcement of the regulations in this regard also was prayed.
Messrs. Samuel Untermyer, Walter C. Noyes, Arthur M. Wickwire, and Irwin Untermyer for appellant.
Assistant Attorney General Denison and Mr. Thurlow M. Gordon, Special Assistant to the Attorney General, for the United States.
Mr. Charles W. Needham for the Interstate Commerce Commission.
The contention of appellant in the commerce court and in this court is, that the regulations of the Interstate Commerce Commission relative to the method of keeping the accounts of common carriers, so far as they are here questioned, are unreasonable, beyond the power or authority of either Congress or the Commision, and violative of the Fifth Article of Amendments to the Constitution of the United States, as being a deprivation of property without due process of law. It is claimed that the effect of enforcing the regulations under the circumstances of the case is to reduce the amount of net earnings applicable to dividends, and thereby cause an irreparable loss to the preferred stockholders, whose dividends are noncumulative, and payable only out of the income of the current year; that the property accounts become inaccurate, because while appellant has actually expended something more than $600,000 in the improvement of its property, and its bonded indebtedness has been in fact increased by the like amount, the accounts will declare that for this expenditure the company has obtained a net accretion to its property of only a little over $200,000 ($629,399.74 less $386,484, or $234,747.74); that the Operating Expense Accounts will be improperly swollen by the inclusion therein of the sum of $386,484, to the deception of the stockholders and the investing public, and the impairment of the financial credit of the company; and that under the requirements of the Commission this sum of $386,484, cannot be charged to and finally taken out of the proceeds of the bonds, but must be charged to operating expenses, and thus taken from operating revenue, because of which (as is claimed) this amount, which has already been paid out of the proceeds of bonds, must ultimately be restored in cash to the bond account, and returned to the trustee or otherwise accounted for to the bondholders. As to the Shreveport shop and terminal plant that are to be abandoned, it is contended that it is unreasonable to require the cost of abandonment to be charged to operating expenses, and that this is a proper charge against the accumulated surplus, as represented in the Profit and Loss Account.
'Sec. 20. That the Commission is hereby authorized to require annual reports from all common carriers subject to the provisions of this act, and from the owners of all railroads engaged in interstate commerce as defined in this act, to prescribe the manner in which such reports shall be made, and to require from such carriers specific answers to all question upon which the Commission may need information. Such annual reports shall show in detail the amount of capital stock issued, the amounts paid therefor, and the manner of payment for the same; the dividends paid, the surplus fund, if any, and the number of stockholders; the funded and floating debts and the interest paid thereon; the cost and value of the carrier's property, franchises, and equipments; . . . the amounts expended for improvements each year, how expended, and the character of such improvements; the earnings and receipts from each branch of business and from all sources; the operating and other expenses; the balances of profit and loss; and a complete exhibit of the financial operations of the carrier each year, including an annual balance sheet. Such reports shall also contain such information in relation to rates or regulations concerning fares or freights, or agreements, arrangements, or contracts affecting the same as the Commission may require; and the Commission may, in its discretion, for the purpose of enabling it the better to carry out the purposes of this act, prescribe a period of time within which all common tional validity of this legislation was sustained in Interstate Commerce Commission v. Goodrich Transit Co. 224 U. S. 194, 211, 214, 56 L. ed. 729, 736, 737, 32 Sup. Ct. Rep. 436.
The authority conferred by Congress upon the commerce court (act of June 18, 1910, 36 Stat. at L. 539, chap. 309; Judicial Code, § 207 [36 Stat. at L. 1148, chap. 231, U. S. Comp. Stat. Supp. 1911, p. 216]) with respect to enjoining or setting aside the orders of the Commission, like the authority previously exercised by the Federal circuit courts, was confined to determining whether there had been violations of the Constitution, or of the power conferred by statute, or an exercise of power so arbitrary as virtually to transcend the authority conferred. Interstate Commerce Commission v. Illinois C. R. Co. 215 U. S. 452, 470, 54 L. ed. 280, 287, 30 Sup. Ct. Rep. 155; Interstate Commerce Commission v. Union P. R. Co. 222 U. S. 541, 547, 56 L. ed. 308, 311, 32 Sup. Ct. Rep. 108; Proctor & G. Co. v. United States, 225 U. S. 282, 297, 36 L. ed. 1091, 1096, 32 Sup. Ct. Rep. 671; Interstate Commerce Commission v. Baltimore & O. R. Co. 225 U. S. 326, 340, 56 L. ed. 1107, 1111, 32 Sup. Ct. Rep. 742.
As to the intent and meaning of § 20, it is first insisted that the power conferred upon the Commission to prescribe the forms of accounts, records, and memoranda to be kept by the carriers, recognizes a distinction between the form and the substance; and that while the Commission, in order to obtain full and accurate information concerning the affairs of each corporation, must have power to require any reports, schedules, and accounts necessary to show the true financial condition of each carrier; yet that the grant must by fair interpretation, and in order not to amount to an unconstitutional delegation of legislative power, stop short of the point where the regulation in its essence goes not to the form, but to the substance, and involves interference with the internal affairs of the corporation. We do not, however, think that any such distinction between the form and the substance is admissible with respect to the declared object of standardizing railroad accounts and obtaining therefrom full and accurate information concerning the affairs of the respective corporations. The very object of a system of accounts is to display the pertinent financial operations of the company, and throw light upon its present condition. If they are to truly do this, the form must correspond with the substance. In order that accounts may be standarized, it is necessary that the accounts of the several carriers shall be arranged under like headings or titles; and it is obviously essential that charges and credits shall be allocated under the proper headings,—the same with one carrier as with another. Unless 'Additions and Betterments,' on the one hand, and 'Operating Expenses,' on the other, are to indicate the same class of entries upon the books of one carrier that they indicate upon the books of other carriers, there is no possibility of standardization. So far as such uniformity requirements control or tend to control the conduct of the carrier in its capacity as a public servant engaged in interstate commerce, they are within the authority constitutionally conferred by Congress upon the Commission. There is no direct interference with the internal affairs of the corporation; and if any such interference indirectly results, it is only such as is incidental to the lawful control of the carrier by the Federal authority, and to this the rights of stockholders and bondholders alike are necessarily subject.
It is said, however, that the meaning of the term 'operating expenses' was well defined at the time of the passage of the act of 1887, and that during the period intervening between the beginning of the work of the Commission thereunder and the passage of the Hepburn act in 1906, the term had never been construed to include any charge for property abandoned in the course of improvements; and that this settled construction, upon familiar principles, must be deemed to have entered into the purpose of Congress when it re-enacted the language of § 20 in the latter year, and added to it authority to the Commission to prescribe in its discretion the forms of accounts and a prohibition against keeping any others than those prescribed or approved by the Commission. But it will be observed that § 20, as originally enacted, authorized the Commission 'in its discretion, for the purpose of enabling it the better to carry out the purposes of this act, [to] prescribe . . . a period of time within which all common carriers subject to the provisions of this act shall have, as near as may be, a uniform system of accounts, and the manner in which such accounts shall be kept.' Congress, when it enacted the Hepburn act in 1906, must have known that the Commission had not as yet found occasion to enforce this provision; and at the same time may be deemed to have contemplated that the authority then for the first time conferred upon the Commission to determine and prescribe the maximum rates to be charged by the carriers for the services to be performed by them furnished a new and more cogent reason for establishing a uniform system of accounts.
Plainly, the lawmaking body recognized the essential distinctions between property accounts and operating accounts, between capital and earnings; it recognized that the practice of different carriers varied in respect to these matters; and that no system of supervision and regulation would be complete without requiring the accounts of all the carriers to speak a common language.
There is here no unconstitutional delegation of legislative powers. The reasoning adopted in Interstate Commerce Commission v. Goodrich Transit Co. 224 U. S. 194, 210, etc., 56 L. ed. 729, 735, 32 Sup. Ct. Rep. 436, is controlling. And since, as just shown, uniformity in accounting is dependent upon the adoption and enforcement of precise classification, the authority to define the terms of the classification necessarily follows. It amounts, after all, to no more than laying down the general rules of action under which the Commission shall proceed, and leaving it to the Commission to apply those rules to particular situations and circumstances by the establishment and enforcement of administrative regulations.
It is contended that the regulations of the Commission, in respect to the matters now under consideration, are so unreasonable and arbitrary as to constitute an abuse rather than an exercise of the powers conferred by § 20, and consequently that they ought to be set aside by judicial action. This is not on the ground that the Commission did not proceed with due deliberation and after proper inquiry. Respecting this, the record abundantly shows that in the year 1906, and shortly after the passage of the Hepburn act, the Commission undertook, and for nearly three years prosecuted a most thorough investigation into the current practice of the principal railroad lines, procuring reports and recommendations from experts, and submitting tentative plans for the classification of accounts to the executives of the railroad lines and to a committee of accounts created by the Association of American Railway Accounting Officers, which association was made up of members representing practically every important railroad in the country.
There is evidence in the record that substantially the same method of distributing charges for so-called 'Additions and Betterments' between the Property Accounts and the Operating Accounts is and has long been pursued by important railroad carriers, and has received the sanction of at least one recent text-book writer,—Whitten, Valuation of Public Service Corporations, §§ 450, 451, 458, etc. Nevertheless, it is insisted with emphasis that property abandoned as an incident to permanent improvements is not an operating expense, and, in effect, that no matter what practice may be pursued by railroad accounting officers, it cannot properly be treated as such.
We are thus brought back to the fundamental distinction between (a) the property or capital accounts, designed to represent the investment of the stockholders, and to show the cost of the property as originally acquired, with subsequent additions and improvements; these assets being balanced by the liabilities, including the amount of the capital stock and of bonded and other indebtedness, with net profits or surplus, whether carried under the head of 'profit and loss' or otherwise; and (b) the operating accounts, designed to show, on the one side, gross receipts or gross earnings for the year, and on the other side, the expenditures involved in producing those gross earnings and in maintaining the property, the balance being the net earnings.
Since the regulation of the railroad carrier by the public authority, and especially the fixing of the rates to be charged, depend primarily upon two fundamental considerations, (a) the value of the property that is employed in the public service, and (b) the current cost of carrying on that service, it is clear that the maintenance of a proper line of distinction between property accounts and operating accounts is essential to the execution by the Interstate Commerce Commission of the supervisory and regulatory powers conferred upon it by Congress.
Appellant contends, inter alia, that since the original locations were necessary in the development of its railroad line, and were abandoned only as an incident to the improvement and development of the property, the cost thereof, being, as it is termed, a part of the 'cost of progress,' should remain in the property account, as representing a part of the stockholders' present investment.
The expressions quoted were properly employed with respect to the questions then presented for decision. As expressions of the general principle, we see no occasion now to qualify them. In both cases it was recognized that in so complicated a matter as the construction, maintenance, and operation of a railroad line, it is difficult to define and perhaps more difficult to consistently apply a precise distinction between capital and expense accounts; and while the propriety of distributing improvement costs over a series of years was recognized, the impossibility of scientific accuracy in that regard was acknowledged. The question now is, whether the regulations of the Commission under attack do violence to these general principles,—rather, it is whether those regulations are so clearly contrary to these and other applicable principles that they should be set aside as being in excess of the powers conferred by Congress upon the Commission.
We are unable to see that there is substantial inconsistency with principle, much less gross violation thereof. The contention of the appellant that property, originally acquired because necessary in the construction of the road, and afterwards abandoned only because rendered unnecessary by the improvement and development of the property, should remain in the property account as a part of the stockholders' investment, will be found, upon analysis, to rest upon the unwarrantable assumption that all capital expenditures result in permanent accretions to the property of the company. This in effect ignores depreciation,—an inevitable fact which no system of accounts can properly ignore. A more complete depreciation than that which is represented by a part of the original plant that through destruction or obsolescence has actually perished as useful property, it would be difficult to imagine. The fact that the original investment was necessary in order that the second investment might be made is not a conclusive test. Reference is made to the cost of the scaffolding used in the erection of a house, and discarded when the house is completed; and to the cost of the paper that goes to the waste-basket, rather than to the printer, in the preparation of a literary composition; but these are fanciful analogies, and do not assist us here, where the real question is not how shall original cost be ascertained, but, how shall subsequent depreciation in value be reckoned and accounted for?
In Knoxville v. Knoxville Water Co. 212 U. S. 1, 53 L. ed. 371, 29 Sup. Ct. Rep. 148, this court had to do with a similar element of depreciation, and, after pointing out that such a plant as was there in question begins to depreciate in value from the moment of its use, and that before coming to the question of profit at all, the company was entitled to earn a sufficient sum annually to provide not only for current repairs, but for making good the depreciation and replacing the parts of the property when they should come to the end of their life, the court proceeded to say (p. 14): 'If, however, a company fails to perform this plain duty and to exact sufficient returns to keep the investment unimpaired, whether this is the result of unwarranted dividends upon overissues of securities, or of omission to exact proper prices for the output, the fault is its own. When, therefore, a public regulation of its prices comes under question, the true value of the property then employed for the purpose of earning a return cannot be enhanced by a consideration of the errors in management which have been committed in the past.' And since one of the manifest objects of Congress in authorizing the supervision and standardization of carriers' accounts, as is done in § 20 of the interstate commerce act, was to enable the Commissioners to intelligently perform their duties respecting the regulation of carriers' rates for the services performed, and since it is settled that the property investment which is to be taken into consideration as one of the elements in fixing such rates is the property then in use (Smyth v. Ames, 169 U. S. 466, 546, 42 L. ed. 819, 849, 18 Sup. Ct. Rep. 418; San Diego Land & Town Co. v. National City, 174 U. S. 739, 757, 43 L. ed. 1154, 1161, 19 Sup. Ct. Rep. 804; San Diego Land & Town Co. v. Jasper, 189 U. S. 439, 442, 47 L. ed. 892, 894, 23 Sup. Ct. Rep. 571; Willcox v. Consolidated Gas Co. 212 U. S. 19, 41, 53 L. ed. 382, 395, 29 Sup Ct. Rep. 192, 15 Ann. Cas. 1034; Minnesota Rate Cases (Simpson v. Shepard) 230 U. S. 352, 434, 454, 458, 57 L. ed. 1511, 1555, 1563, 1565, 33 Sup. Ct. Rep. 728), it is obvious that, so far as the regulations of the Commission now under consideration discard the 'cost of progress' theory, they need no further vindication.
It is insisted that if the appellant, having expended in round figures $600,000, secured by the sale of bonds for improvements, can be compelled to charge $400,000 of that amount to the operating expense of one year, or to distribute it among the operating expenses of a series of years, and if it be forbidden to keep any other record representing the transaction, it will have in its possession no kind of record from which it can report accurately either the cost of its property or the cost of improvements or its operating expenses. This, we think, is a misapprehension of the effect of the regulations. They do not require appellant to falsify its books or to change in any way the evidential character of the original entries. The source of the money, and the disposition made of it as expended, may and should be correctly shown. The regulations do require that the contemporaneous abandonment of other property be likewise shown, and the replacement cost, less salvage, charged to the appropriate accounts under operating expenses. This, if observed, of course results in enforcing a prescribed distinction between capital expense and operating expense. It does not require that the record of the expenditure be obliterated; but it does of course affect the results as they work out upon the balance sheet. If this be fairly done, there is no transmutation of new property into operating expenses, but only an insistence upon the requirement that new property added shall not alone be the measure of the accretion to the property account, and that the depletion attributable to contemporaneous abandonment of other property shall likewise be reflected upon the books.
Stress is laid upon the fact that if the grade reductions in question had been made upon the line of the original right of way, even though made at double the expense, the cost would have gone into 'additions and betterments,' and would have stood as a permanent increment of assets in the property account; while with respect to similar improvements made off the line of the original right of way, appellant is not permitted to carry into the property account the full cost of the improvement, but must first deduct therefrom the estimated replacement cost (less salvage) of the portions of track no longer used, charging this to the account of operating expenses.
So far as the comparative expense of the different modes of improvement is concerned, little need be said. The accounting regulations do not seek to control railroad companies in the exercise of their discretion respecting what shall be done and how it shall be done, but only to systematize their accounts with respect to whatever is done. It is to be presumed that boards of directors will select that method of accomplishing a needed grade revision that shall be preferable from the engineering standpoint and suited to the financial condition and prospects of the company; not that they will adopt an inferior or more costly method of improvement because of the accounting requirements.
The distinction drawn between grade improvements 'off the line' and those made 'on the line' rests upon the view that the discarding of sections of the original line of road is a loss or depreciation that in correct accounting should be taken out of the property account. If this is to be done, its value must be charged, directly or indirectly, as an expense incident to the operation of the road. Whether it should be charged against the accumulated profits of previous years, as reflected in the Profit and Loss Account, or against the profits of present and future years, may depend upon circumstances. The theory upon which the Commission has acted in formulating its regulations is fairly stated in its brief herein as follows: The abandonment of property incident to grade revision is 'depreciation,' and such depreciation is of two kinds,—(1) that which is not replaced in kind, and (2) that which is replaced by improved materials, track, or equipment. If a trunk line of road has a branch extending into a territory not served by its main line, and, finding the branch unprofitable, abandons it, taking up the track, without constructing any substitute to serve the same territory, the abandoned branch ceases to be an earning instrumentality; the stockholders can thereafter derive no profit from it; it has served its purpose, and only past operations have benefited from it. So far as the profits of past operations have not been distributed to the stockholders, they are represented in the Profit and Loss Account, and therefore such an abandonment or depreciation is properly chargeable to that account unless a special depreciation account has been established in anticipation of such abandonments; and for such an account, provision is made in the regulations. The other kind of depreciation is the result of changes attributable to the inadequacy of the existing property to meet the demands of the future. The road or the structures have to be replaced with stronger or more efficient instrumentalities. Abandonments occasioned by changes of this character are therefore chargeable to future earnings, for the reason that the improved condition of the road is not only designed to meet the demands of the future, but presumably will result in economies of operation; and so the resulting benefits will be reaped by those who hold the stock of the company in the present and in the future. The railroad company may, if it sees fit, anticipate general depreciations, and make provision for them by establishing a reserve for the purpose; but if no such provision has been made, the abandonment should be taken care of by charging them to present or future operating expense. In case, however, the amount is so large that its inclusion in a carrier's operating expenses for a single year would unduly burden the operating expense account for that year, the carrier may, if so authorized by the Commission, distribute the cost throughout a series of years.
One of the reasons for the distinction made in accounting between improvements made on, and those made off, the old right of way, is that in the former case the improvements show themselves in the physical structures, and can be inventoried and appraised by witnesses; the deepening of cuts and increasing of fills, while involving some abandonments (and these under the regulations are to be taken out of the operating account), yet in the main are visible upon the ground, and capable of mensuration and appraisement. To the suggestion that cuts filled up and embankments reduced would not be thus manifiest, it is sufficient to say that if such cases occur they must be most extraordinary. When a railroad is originally constructed, cuts and fills are made to overcome natural inequalities of surface; if any undue grades are permitted to remain, it is usually because, for reasons of economy, cuts have been made less deep and fills less high than otherwise they would have been made. Therefore grade revisions upon the line of the original right of way are normally required for the purpose of removing summits in cuts and raising sags in fills; not vice versa.
It is said that the effect of the regulations, if complied with, is to deprive the preferred stockholders of a considerable part of the noncumulative dividends from the net earnings of the company, to which they would otherwise be entitled. The preferred stockholders, as such, are not before the court, and this is not a proper occasion for determining their rights. Supposing, however, that the enforcement of the accounting system does require them to forego their current dividends, we do not concede that this amounts to an unlawful taking of their property. Assuming (as of course we must) that the management of the company has acted prudently in making these extensive improvements within a short time, instead of distributing them throughout a series of years, and without providing in advance any fund applicable to them, still it must be presumed that the improvements are necessary to the general welfare of the company, and will result in its increased prosperity, and therefore make better the assurance of dividends for the preferred stockholders in the future.
But, aside from that, the interstate commerce act deals with the carrier in its capacity as a servant of the public, and as a distinct entity, amenable to the legitimate regulation of Congress and the Commission. If in this aspect the carrier is not unwarrantably injured or deprived of its property by the exercise of the regulatory powers, the operation of such regulations cannot be restrained on the ground of agreements made by the stockholders amongst themselves for apportioning profits to one or the other class of stockholders. To admit this might materially hamper the Federal control over interstate carriers, and evidently would tend to render impracticable the standardization of methods of accounting.
Much stress is laid upon the situation that results from the circumstance that (as is claimed) these regulations were promulgated after appellant had mortgaged its property and issued bonds for financing the improvements in question. It is not contended that the regulations impair the rights of either party under the mortgage. The contention is that the company had the right to finance the full cost of the improvements out of the proceeds of a bond issue, and that the regulations amount in effect to a veto upon the action of the directors in this respect. Supposing this to be true, we are unable to perceive that the appellant is thereby relieved from compliance with the regulations. Whatever was done about authorizing the improvements and financing the cost from the bond issue was done subject to being displaced by the exercise of the powers conferred upon the Interstate Commerce Commission by the act of 1906. The regulations do not affect the administration of the borrowed money. It was borrowed inter alia specifically for use in 'reducing grades to 1/2 of 1 per cent on three full operating divisions, aggregating 41 per cent of the total length of the line.' And by the mortgage appellant covenanted to use the bonds and the proceeds thereof in calling in and redeeming an outstanding loan, 'and for the general improvement of its property.' In short, so far as appears, there is nothing in the regulations to prevent the appellant from devoting the money strictly to the purposes for which it was borrowed, although they do prevent the keeping of the accounts in such manner as to make it appear that the book value of the company's assets is enhanced to the full extent of the moneys disbursed in the improvements.
When it is said that the amount of $386,484, which, under the requirements of the Commission, must be charged to operating expenses, must for that reason be ultimately restored in cash to the bond account and returned to the trustee, or otherwise accounted for to the bondholders, this does not mean that any obligation of that kind is imposed upon appellant by the classification. We are not referred to anything in the classification, in the provisions of the mortgage, or in the law, that imposes any such duty. What is meant (as we presume), is that if the operating expenses are increased and the operating revenue decreased by the amount mentioned, in accordance with the regulations, and the payment of dividends should nevertheless continue, the books would make it appear that the dividends were paid not from earnings, but from the proceeds of the bonds. In other words, the regulations of the Commission prevent the proceeds of the bond issue from being used, in whole or in part, to maintain dividend payments without that fact appearing upon the accounts; and since it is improbable that appellant would be willing to have the accounts bear such an interpretation, it is probable that the proceeds of the bonds will not be employed for dividend purposes, and unless required for further improvements, may as well be returned to the trustee for the bondholders. Since one of the very purposes of establishing the accounting system is to deter the payment of dividends out of capital, the criticism, upon analysis, bears its own refutation.
The same may be said of the argument that enforcement of the regulations will impair the credit of appellant by diminishing apparent earnings, preventing continuance of dividends upon preferred stock, and keeping down the aggregate value of 'assets' upon the property accounts. Presumably the regulations have a tendency to place the accounting system upon a sound basis in these respects; and to accomplish this was one of the legitimate objects at which Congress aimed in the enactment of § 20 of the interstate commerce act.
It is further insisted that even the theory upon which the accounting regulations rest does not, when analyzed, justify a charge of abandoned property to operating expenses, but at most a charge to profit and loss. The suggestion apparently has force; but, upon consideration, we are unable to see that it furnishes ground for judicial interference with the course pursued by the Commission. Except for the contention (already disposed of) that the value of the abandoned parcels should be permanently carried in the property account as part of the cost of progress, it is and must be conceded that sooner or later it must be charged against the operating revenue, either past or future, if the integrity of the property accounts is to be maintained; and it becomes a question of policy whether it should be charged in solido to profit and loss (an account presumptively representative of past accumulations) or to the operating accounts of the present and future. If abandoned property is not charged off in one way or the other it remains as a permanent inflation of the property accounts, and tends to produce, directly or indirectly, a declaration of dividends out of capital. If it be charged off to the surplus account, it tends to prevent the declaration of dividends based upon a supposed accumulation of past earnings. If charged to operating expenses of the current and future years, it has a tendency to prevent the declaration of dividends from current earnings until the amount of the depreciation shall have been made up out of the earnings.
But, did we agree with appellant that the abandonments ought to be charged to surplus or to profit and loss, rather than to operating expenses, we still should not deem this a sufficient ground to declare that the Commission had abused its power. So long as it acts fairly and reasonably within the grant of power constitutionally conferred by Congress, its orders are not open to judicial review.
carriers subject to the provisions of this act shall have, as near as may be, a uniform system of accounts, and the manner in which such accounts shall be kept.


WHEREAS, a determination has been made that the municipal code concerning the Police Division needs to be amended to reflect current operations and to harmonize the municipal code with current collective bargaining agreements.
§ 94-1. Division of Police continued; positions.
There is hereby continued in and for the Township of Vernon a Police Division, as part of the Department of Public Safety, which may consist of a Chief of Police, Deputy Chief of Police, and such numbers of Captains, Lieutenants, Sergeants and patrol officers as may, from time to time, be authorized by further ordinance of the Township Council. When positions are so authorized, the Mayor shall make appointments to the authorized positions. The Police Division, upon adoption of this chapter, shall consist of the following authorized positions: one Chief of Police, one Captain, two Lieutenants, five up to six Sergeants and up to 30 patrol officers.
§ 94-5. Requirements for probationary patrolman; appointment.
Be able to read and write the English language intelligently.
Be at least 21 years of age not less than 18 years of age nor more than 35 years of age at the announced closing date for filing applications for the position or as otherwise approved by the New Jersey Police and Fireman Retirement System.
Be in good health, sound in mind and body.
Exhibit, at the time of application prior to appointment, a certificate from the Township Physician that the applicant is physically capable of performing the duties which will be required as a probationary patrolman.
Probationary patrolmen shall be appointed on the basis of merit and as the result of a competitive examination that fairly tests and determines the qualifications, fitness and ability of the applicant to perform the duties of the position to which they seek appointment. Preference shall be given to those applicants who are residents of the Township of Vernon at the time they file for the examination for appointment to the Police Department as allowed by N.J.S.A. 40A:14-123.1(a) 40A:14-123.1a. The aforesaid examination shall be conducted at such time and in such manner as the Mayor shall determine.
Captains shall have the powers vested in them by law, subject to such rules and regulations and orders as may, from time to time, be established in writing by the Mayor.
Captains shall promptly report to the desk the internal affairs officer any and all infractions of rules, orders and regulations, or any unfitness for the performance of duties, and submit to the Chief of Police in writing a report containing such information.
§ 94-10. Annual physical examinations. Reserved.
Every member of the Division of Police shall report annually to the Township Physician who is appointed by the Mayor at a place and time designated by the Physician and submit to a complete physical examination.
If the member is found by the Physician to be suffering from any ailment, or to be underweight or overweight, the member shall take such treatment or comply with such instructions as the Township Physician may prescribe or give.
§ 94-11. Illness or injury; duties of Township Physician.
Any member of the Division of Police who shall be unable to report for duty by reason of any injury or incapacitating illness shall immediately report that fact to the immediate superior officer who, upon receiving any such report, shall notify the Chief of Police via the chain of command immediately arrange to have the Township Physician make a prompt examination of such incapacitated person.
The Township Physician, after having made such examination, shall submit a report to the Chief of Police, setting forth the nature of the incapacitating illness or injury and an estimate of the probable length of time during which such member of the Division will be absent from duty. Procedures for handling injuries or incapacitating illnesses of an employee shall be guided by the Police Division’s Rules and Regulations, policies and procedures, collective bargaining agreements, and the Township employee handbook.
The Township Physician shall follow up and keep a record of each case and shall advise the Chief of Police when the member is available for duty.
The Chief of Police may then order the member to return to duty, even though such member shall be under the care or treatment of another physician.
The Township Physician shall, from time to time, report in writing to the Mayor or Chief of Police all cases of illness or absence from duty because of injuries or illness where such absence has continued for a period of 30 days or more.
The Township Physician shall also report all cases of repeated excuse from duty or sick leave, together with a statement of the circumstances, and recommendations concerning the same.
§ 94-12. Injury or illness while on duty.
Any member of the Division who shall sustain any injury or become ill while on duty shall immediately report such fact to the immediate superior officer or the desk officer any command level officer.
The members of the Division of Police shall receive for their respective services such salaries as may, from time to time, be established by ordinance or resolution.
Members of the Division shall be entitled to such annual vacations, with pay, as may, from time to time, be established by the Council.
§ 94-15. Court appearances by members.
Members of the Division of Police shall be required to appear in court, as required by rule or regulation, or as directed. Unless otherwise provided by rule or regulation, the time required for court appearances shall not be counted as part of the regular forty-hour workweek, nor shall extra compensation be allowed or paid for such time spent in court appearances.