the trial court. Unless the testimony was such that no recovery can be had upon the facts shown in any view which can be properly taken of them the verdict and judgment of the District Court must be affirmed.

That there was ample testimony to carry the question of negligence to the jury we have already said, and in any case it cannot be said as a matter of law that there was no evidence tending to show that Myers came to his death by the negligence of defendant in one or more of the ways charged in the petition. Considering the testimony, as it must be considered in determining questions of this character in appellate courts, in its most favorable aspect to the plaintiff below, we think the jury might well have found, in view of the place at which the body of Myers was found near to the wire, with his cap gone from his head, that he came in contact with that wire and was thrown to the ground, and that he survived from contact with the wire, carrying the voltage which it did, and while in this situation was run over and killed by the approaching motor car, the operator being unable to see his body upon the track because of the want of efficient light in the entry or in the motor car. We think reasonable men considering the testimony adduced might well have come to this conclusion, and that it was error in the appellate court to set aside the verdict for entire absence of testimony upon this subject. In our opinion, the trial court properly left the question to the jury upon testimony which when fairly considered might sustain the verdict. See Humes v. United States, 170 U. S. 210.

As to the contention that the trial court erred in refusing to give the instruction requested by the Coal Company to the effect that the equipment and operation of the electric haulage plant and all persons employed in the mine were in charge and subject to the orders and direction of a duly qualified mine foreman, and that, if decedent's death occurred by reason of negligence, such negligence VOL. CCXXXIII-13

was that of the mine foreman and the Coal Company could not be held liable: The record shows that there was testimony tending to show that the electrical system was in charge of the electrician of the Coal Company employed as Superintendent of Electrical Equipment, who had charge of the purchase, installation, care, operation and maintenance of the electrical equipment used by the Company and who was not subject to the mine foreman. The court submitted to the jury the question whether the Coal Company had committed to the mine foreman the electric system of hauling in the interior of the mine or whether such system was in charge of an electrical engineer not accountable to the mine foreman, distinctly telling the jury that if the mine foreman was in charge in this respect the company would not be responsible, but if they found that the Coal Company had excluded from the control of the mine foreman the electric haulage system and that the negligence of the Coal Company was the direct and proximate cause of the death of the plaintiff's husband, there must be a recovery. The charge in this respect was as favorable as the company was entitled to have given.

As to the objection that the court erred in failing to give the instruction requested by the defendant concerning the operation of the automatic switch, to the effect that if it did not work on the trip on which the decedent was run over and even if it was out of order those conditions would not contribute to the running over of the decedent by the motor car or to his death, it is sufficient to say that the court in its charge to the jury did not submit a question of negligence specifically concerning this automatic switch and its effect if out of repair, and to have affirmed this point by giving it to the jury would only have served to possibly confuse the jury upon a point immaterial to the plaintiff's recovery in view of the manner in which the case was given in charge to the jury.

We have examined the charge and the exceptions thereto and requests for instructions and are of opinion that the trial court fairly submitted the questions involved to the jury in a charge to which there was no substantial objection.

As to the suggestion that the deceased had assumed the risk of the want of proper appliances and the defective character of the light at the place in which he worked and was injured, we do not find that the court was requested to make any charge upon that subject or that any exception was taken to the court's failure to charge as to assumption of risk. In that state of the record, the appellate court was not called upon to consider that question. See Humes v. United States, supra. The Circuit Court of Appeals reversed the case for the reason, which we have stated, that there was an entire failure of adequate testimony to show that Myers came to his death by the negligence of the company in the manner charged. As we have said, we think that was an erroneous conclusion. It follows that the judgment of the Circuit Court of Appeals must be reversed and the judgment of the Circuit Court affirmed and the case remanded to the District Court.

RUSSELL v. SEBASTIAN.

ERROR TO THE SUPREME COURT OF THE STATE OF

CALIFORNIA.

No. 415. Argued January 6, 1914.—Decided April 6, 1914.

In determining the question of impairment under the contract clause of the Constitution it is the duty of this court to determine for itself the nature and extent of rights acquired under prior legislative or constitutional action.

The state court having construed a statutory or constitutional provi

sion, which gave specified privileges in regard to public utilities in a certain class of municipalities under specified conditions without specifying the persons or corporations who could avail thereof or the method of acceptance, to the effect that the grant became effective in any municipality within the designated class by the party accepting it as if it had been made specially to the accepting party, this court follows such construction in regard to § 19 of art. XI of the constitution of 1879 of California as amended in 1884.

When the State declares that it is bound if its offer to grant a privilege, which plainly contemplates the establishment of a plant and the assumption of a duty to perform the services incident to a public utility, is accepted, the grant resulting from the acceptance constitutes a contract and vests a property right in the accepting party which is within the protection of the contract clause of the Federal Constitution.

The rule that public grants are to be construed strictly in favor of the public, and ambiguities are to be resolved against the grantee, is a salutary one to frustrate efforts through skilful wording of the grant by interested parties; but the rule does not deny to public offers a fair and reasonable interpretation or justify withholding that which the grant was intended to convey.

An offer of the State to allow parties, ready to serve municipalities with gas or water, provisions for conveying the gas or water, is to be given a practical common-sense construction; and the breadth of the offer is commensurate with the requirements of the undertaking invited. Where the constitution of the State does not forbid, the State may determine the policy of making direct grants for franchises in municipalities and may determine their terms and scope.

A grant to lay pipes and conduits in the streets of a municipality, dependent only upon acceptance, is not to be regarded as accepted foot by foot as pipes are laid, but in an entirety for all the streets of the municipality; and after acceptance and preparation for compliance with the offer the grant cannot be withdrawn as to the streets in which pipes have not been laid. Such action would impair the contract.

The duty of a public service corporation to extend its service to meet reasonable demands of the community is correlative to the obligation of the municipality to allow the service to be extended as required by the public needs.

In this case the public service corporation having, by accepting the offer of the State and making the investment, committed itself irrevocably to the undertaking, it was entitled to continue to lay pipes

in the streets whenever necessary to extend its service, and it could not be prevented from doing so by subsequent legislation impairing the grant.

The amendment of 1911 to § 19 of art. XI of the California constitution of 1879 as amended in 1884 and municipal ordinances of Los Angeles adopted in pursuance thereof, were ineffectual under the contract clause of the Federal Constitution to deprive a corporation which had accepted the offer of the State, contained in § 19 before the amendment, of its right to continue to lay pipes in the streets of Los Angeles in accordance with the general regulations of the municipality in regard to such work.

163 California, 668, reversed.

THE facts, which involve the construction and constitutionality under the contract clause of the Federal Constitution of provisions of the constitution of California in regard to right of gas and water companies to excavate streets in municipalities for their mains, and the application of such provisions to such corporations in the City of Los Angeles, are stated in the opinion.

Mr. Garret W. McEnerney and Mr. Oscar A. Trippet, with whom Mr. Warren Gregory, Mr. H. H. Trowbridge and Mr. W. H. Chickering were on the brief, for plaintiff in

error.

Mr. Ray E. Nimmo and Mr. Albert Lee Stephens, with whom Mr. John W. Shenk and Mr. William J. Carr were on the brief, for defendant in error.

By leave of the court, Mr. Charles S. Wheeler and Mr. John F. Bowie filed a brief as amici curiæ.

MR. JUSTICE HUGHES delivered the opinion of the court.

This is a writ of error to review a judgment in a habeas corpus proceeding. 163 California, 668.

The plaintiff in error was arrested, on or about Febru