Solicitor General Hoyt, Attorney General Bonaparte, and Mr. Edwin W. Lawrence for plaintiff in error. Messrs. N. C. Miller, B. W. Ritter, and Edgar Buchanan for defendant in error. Mr. Justice White delivered the opinion of the court: The indictment alleged a conspiracy to | rado to review a judgment quashing an defraud the United States of coal lands, in indictment for a conspiracy illegally to obviolation of § 5440, Rev. Stat. (U. S. Comp. tain coal lands from the United States. Stat. 1901, p. 3676). The conspiracy charged Affirmed. was, speaking in a broad sense, of the same general nature as that set forth in the first count of the indictment in the Keitel Case. In the argument at bar, however, counsel differ as to the correct construction of the indictment here under consideration, the United States contending that the conspiracy to which the indictment related concerned entries based upon preferential rights, while, on the part of the defendants in error, it is insisted that the conspiracy related to only cash entries. In view, however, of our ruling in the Keitel Case, No. 286, and the reasoning by which the decision in that case was held to be controlling in United States v. Forrester, No. 287, just decided [211 U. S. 399, 53 L. ed. —, 29 Sup. Ct.ential entry of coal lands, to make and preRep. 132], the contentions referred to are irrelevant on this writ of error. The indictment in this case contains two counts, each purporting to charge the commission of an offense in violation of Rev. Stat., § 4746 (U. S. Comp. Stat. 1901, p. 3279), as amended. The substantial charge in each count is that the defendant unlawfully procured named person, in connection with a prefer sent to the Secretary of the Interior, by and through the register and receiver of the As it results from the opinions in the United States land office at Durango, Colocases just referred to that the court below rado, an affidavit at purchase, which was erred in sustaining the demurrer to the in-false and fraudulent in specified particulars. dictment, its order so doing must be reversed. Reversed and remanded for further proeeedings in conformity to this opinion. (211 U. S. 406) UNITED STATES, Plff. in Err., V. CHARLES E. HERR. A demurrer to the indictment was filed and the validity of each count was assailed on many grounds. In disposing of the demurrer it was assumed by the district judge, as conceded by the government, that the affidavit was not, in fact, presented to the Secretary of the Interior, but was simply filed in the local land office. The demurrer was sustained "for reasons given on consideration of the second count in the indictment" in the case against F. W. This case is governed by the decision in Keitel et al. The case at bar comes within United States v. Keitel, ante, p. 123. [No. 292.] the principles applied by us in No. 286, just decided [211 U. S. 370, 53 L. ed., 29 Sup. Ct. Rep. 123], where, in passing upon the rulings made below in the Keitel Case, it was Argued October 22, 23, 26. Decided De- held that the second count of the indictment there considered, when the statute was correctly construed, stated no offense. The judgment below, which involved a similar ruling, is therefore affirmed. 7 *461 (211 U. S. 459) V. JOHN D. FRAZEE. MASTER AND SERVANT (§ 209*)-ASSUMP- an inch thick, extending from side to side of the machine, and about 4 inches distant from the revolving cylinder. The guard was painted red. It was adjustable and could be set at a height above the feed board of from 1/4 of an inch to 4 inches, depending upon the thickness of the clothes to be ironed. On this mangle the guard had always been adjusted at a height of 1% inches above the feed board. The various parts of the machine described and their relation to each other and the mode of operation were in plain view of the operator. The plaintiff was twenty-two years of age, apparently of full intelligence, and before entering the employ of the defendant had Argued December 3, 1908. Decided De- of mangles in other establishments. had two years' experience in the operation An experienced operator of full age and intelligence must be deemed, as a matter of law, to assume the risk of injury because of the excessive height above the feed board at which the finger-guard rail of a laundry mangle is adjusted, where she has worked for some months at this machine, during all of which time the guard rail has remained in the same position. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 552; Dec. Dig. § 209.*] [No. 36.] cember 21, 1908. N ERROR to the Court of Appeals of the She testified that those mangles were equipped with finger guards, which prevented the I District of the Court of futa operator's hands from coming into contact ment which affirmed a judgment of the Supreme Court of the District, entered upon a directed verdict in favor of defendant in an action to recover damages for personal injuries. Affirmed. See same case below, 25 App. D. C. 392. The facts are stated in the opinion. Messrs. John C. Gittings and Justin Morrill Chamberlin for plaintiff in error. Messrs. Leonard J. Mather and Charles A. Keigwin for defendant in error. Mr. Justice Moody delivered the opinion of the court: The plaintiff in error brought an action against the defendant in error in the supreme court of the District of Columbia, in which she sought to recover damages for injuries suffered by her while in the defendant's employ. The injuries were incurred while the plaintiff was operating a mangle in the defendant's steam laundry. The function of the machine was to iron and dry clothes by drawing them between a cylinder and a series of rollers. The cylinder was of steel, 4 feet in diameter and 8 feet long and heated by steam. Above and in contact with it were five rollers. When in motion the cylinder and the rollers revolved inwardly. In front of the cylinder and closely fitted to it was a feed board, 12 to 15 inches wide and 8 feet long. It was the duty of the operator of the machine to spread the damp article to be ironed upon the feed board and push it forward until it touched the cylinder, by whose motion it was drawn upward to the point of engagement between the cylinder and the first roller, thereby being drawn through between the cylinder and the rollers. For the safety of the operator the machine was equipped with a finger guard, which was a bar of steel 8 feet long, 3 inches wide, and % of with the steam cylinder, and that she had never known of any injury happening to an operator by contact with the cylinder. She received no instructions or warning of any danger. When she was set to work upon the mangle in October, 1902, the feed board was loose, thereby permitting clothing occasionally to drop between its edge and the steam cylinder. This condition continued unchanged until the time of the plaintiff's injury, and it was not reported or complained of by her. In the following December she was injured. The only testimony as to how the injury occurred was given by the plaintiff herself, and was stated in the bill of exceptions as follows: A. Why, the morning of the accident nearly every piece we put in the mangle, Miss Cumberland's end would go in before mine and I would have to push, and my hand caught on. . . A. The morning of the accident nearly every piece would catch on Sidney's side before it would catch on mine; and the table cloth would take my hand right on up with it. It dropped down between the board and the cylinder, and when it caught, it carried my hand linen would drop down between the board A. Well, the right on up with it. and the cylinder and you had to push it up. Q. Do you mean us to understand that you put your hand deliberately inside this finger guard and down into the space between the feed board and the cylinder? A. No, sir. Q. How did the linen drop? A. The linen instead of going in would drop down between the board and the cylinder and you would push it up, and the young lady working on the other side, hers would catch before mine. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Q. You had to get hold of the end in some way to push it up? A. The table cloth dropped. Sidney's end had gone in and my end had dropped, and A. No, sir; you had to push it up the I pushed it and it caught. As soon as the feed board. table cloth it caught, and, after it caught, Q. If the edge of the linen you were feed-in some way it took my hand right up with ing had dropped down between the feed it. board and the cylinder, how could you push it up? A. You could push it up and it would come down wrinkled. Q. If it had dropped down between the feed board and the cylinder, how could you push it up? A. It dropped down between the feed board and the cylinder, and when you pushed it up and it came out of the mangle it would come out wrinkled. Q. You did not hold the table cloth as it fed into the machine? A. Yes, I had hold of the table cloth. Q. You pushed the table cloth over the feed board; but you could not catch hold of it, as a matter of fact? A. I had hold of the table cloth and was pushing it up and it dropped. And this day it was worse; every piece we put in, it dropped down and we had to push it up; and as I pushed it up in some way or other it took my hand with it. Q. You say it was getting worse? A. Yes. We had to sprinkle the clothes every day, and this day we had to sprinkle the clothes more than ever. Q. Where did it drop? Between the feed board and the cylinder? A. Between the feed board and the cylinder. Q. And it was not until after it dropped that your hand was caught? A. It dropped between the feed board and the cylinder, and I had my hand on the feed board to make it catch, and my hand caught and went right up with it. *The plaintiff offered the testimony of expert witnesses, who said that no kind of laundry work required the finger guard to be more than 2 an inch above the feed board. Apart from the extent of the injuries, this was all the evidence tending to sustain plaintiff's cause of action. The presiding judge directed a verdict to be returned for the defendant. Upon exceptions this ruling was sustained by the court of appeals, and the case was brought here by writ of error. The evidence tended to show that, in one respect, at least, the machine operated by the plaintiff was out of repair. The feed board was loose, thereby permitting the Q. And that is the only day you put fabric to be ironed sometimes to drop beyour hand inside the finger guard? A. Yes. Q. Why did you put your hand inside then? A. I didn't put my hand inside. The table cloth pulled it in. My hand was on the table cloth pushing it up, and the table cloth caught and it caught my hand with it. Q. On this particular occasion even you didn't push your hand inside the finger guard? A. No, sir; I didn't put my hand under the finger guard until the table cloth pulled it under. Q. So the table cloth had hold of your hand before your hand had gotten past the finger guard? A. The table cloth dropped and I gave it another push to make it catch, and after it dropped it caught it on the cylinder and carried my hand right with it. Q. So that your hand had gone past the finger guard before the table cloth caught | it and carried it into the mangle? tween it and the steam cylinder. How far this was a cause contributing to the injury does not clearly appear, and at the bar it was not relied upon as the cause of the plaintiff's injury. This was the prudent attitude, because the ill-repair of the machine in this respect, and the effect upon its operation, were in existence from the first and well known to the plaintiff, and she failed to report or complain of the defect to her employer. Washington & G. R. Co. v. McDade, 135 U. S. 554, 570, 34 L. ed. 235, 241, 10 Sup. Ct. Rep. 1044. The single ground upon which the plaintiff's right to recover was rested was that the guard rail was adjusted at an excessive height, so that it would permit the plaintiff's hand to be drawn between it and the feed board up to the point of engagement between the revolving cylinder and rollers. The judgment of the court below went against the plaintiff, upon the theory that she assumed the risk of this danger, and that is the question to be considered. One who understands and A. The table cloth took my hand right appreciates the permanent conditions of along with it. Q. What I want to find out is the exact time that this table cloth became wrapped around your hand in such a way as to take it into that mangle? machinery, premises, and the like, and the danger which arises therefrom, or, by the reasonable use of his senses, having in view his age, intelligence, and experience, ought to have understood and appreciated them, *465 *466 and voluntarily undertakes to work under those conditions and to expose himself to those dangers, cannot recover against his employer for the resulting injuries. Upon that state of facts the law declares that he assumes the risk. The rule is too well settled to warrant an extensive discussion of it or an attempt to analyze the different reasons upon which it has been held to be justified. The rule of assumption of risk has been thought by many a hard one when applied to the complicated conditions of modern industry, so largely conducted by the aid of machinery propelled by irresistible and merciless mechanical power, and the criticism frequently has been made that the imperative need of employment leaves to the workman no real freedom of choice, such as the rule assumes. That these considerations have had an influence is shown possess, and both the conditions and the dangers are obvious to the common understanding, and the employee is of full age, intelligence, and adequate experience, and all these elements of the problem appear without contradiction, from the plaintiff's own evidence, the question becomes one of law for the decision of the court. Upon such a state of the evidence a verdict for the plaintiff cannot be sustained, and it is the instruct the jury accordingly. Patton v. duty of the judge presiding at the trial to Texas & P. R. Co. 179 U. S. 658, 45 L. ed. 361, 21 Sup. Ct. Rep. 275, and cases there cited. class. The case at bar falls within this The plaintiff was a person of mature years, intelligent, and of adequate experience. She had worked for some months upby the notorious unwillingness of juries to time it was always in exactly the same conon this particular machine, and during that apply the rule, and by the legislative modi-dition in which it was upon the day of the fications of it which, from time to time, have been made, as, for instance, by Congress in the safety appliance law. Schlem mer v. Buffalo, R. & P. R. Co. 205 U. S. 1, 51 L. ed. 681, 27 Sup. Ct. Rep. 407. But the common law in this regard has not been modified in the District of Columbia, and we have no other duty than to enforce it. No question has been made in the case at bar that the rule prevails and is relevant to the facts of this case. The contention, however, is that, as the plaintiff testified in substance that she did not know and appreciate the danger which she was encountering, that testimony, with the other facts in the case, raised an issue for the jury, and that it could not be said, as matter of law, that the risk had been assumed. This contention is sustained by a well-considered case. Stager v. Troy Laundry Co. 38 Or. 480, 53 L.R.A. 459, 63 Pac. 645. See Fronk . J. H. Evans City Steam Laundry Co. 70 Neb. 75, 96 N. W. 1053. Where the elements and combination out of which the danger arises are visible it cannot always be said that the danger itself is so apparent that the employee must be held, as matter of law, to understand, appreciate, and assume the risk of it. Texas & P. R. Co. v. Swearingen, 196 U. S. 51, 49 L. ed. 382, 25 Sup. Ct. Rep. 164; Fitzgerald v. Connecticut River Paper Co. 155 Mass. 155, 31 Am. St. Rep. 537, 29 N. E. 464. The visible conditions may have been of recent origin, and the danger arising from them may have been obscure. In such cases, and perhaps others that could be stated, the question of the assumption of the risk is plainly for the jury. But where the conditions are constant and of long standing, and the danger is one that is suggested by the common knowledge which all injury. The elements out of which the danger arose were plainly visible to her. The employer had no duty, statutory or otherwise, to use a rail to guard against so obvious a danger as that arising out of two cylinders in contact with each other and seen to be revolving inwardly. Hickey v. Taaffe, 105 N. Y. 26, 12 N. E. 286. We see nothing in the manner of the adjustment of the guard rail which constituted an allurement or was calculated to blind the the parts of the machine was continually plaintiff to the danger. The adjustment of between the cylinder and the rollers by conbefore her eyes. The danger of being drawn tact with the cylinder was illustrated to her every minute of the day by the drawing in of the clothes to be ironed by contact with the revolving cylinder. The distance between the guard rail and the feed board was constant, and its relation to the thickness of her hand was apparent. She must have understood that if her hand became in extricably entangled with the clothes, as seems from the rather vague testimony of the plaintiff was the case here, it would be drawn between the cylinder and receive the injuries which unhappily occurred. * We think that it must be said, as matter of law, that she voluntarily assumed the risk of the danger. Tuttle v. Detroit, G. H. & M. R. Co. 122 U. S. 189, 30 L. ed. 1114, 7 Sup. Ct. Rep. 1166; Crowley v. Pacific Mills, Mass. 228, 19 N. E. 344; Gleason v. New York & N. E. R. Co. 159 Mass. 68, 34 N. E. 79; Connolly v. Eldredge, 160 Mass. 566, 36 N. E. 469; Lemoine v. Aldrich, 177 Mass. 89, 58 N. E. 178; Burke v. Davis, 191 Mass. 20, 4 L.R.A. (N.S.) 971, 114 Am. St. Rep. 591, 76 N. E. 1039. Judgment affirmed. 148 *448 (211 U. S. 446) V. CITY OF NEW YORK. CONSTITUTIONAL LAW (§ 284*)-DUE PRO- ERTY. Land subject to a mortgage may be as sessed at its full value for taxation without violating U. S. Const., 14th Amend., although the mortgage debt is not deducted from the owner's personal estate. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 891; Dec. Dig. § 284.*] [No. 42.] The plaintiff has many difficulties in his way. In the first place, the mode of taxation is of long standing, and, upon questions of constitutional law, the long-settled habits of the community play a part as well as grammar and logic. If we should assume that, economically speaking, the present system really taxes two persons for the same thing, the fact that the system has been in force for a very long time is of itself a strong reason against the belief that it has been overthrown by the 14th Amendment, and for leaving any improvement that may be desired to the legislature. The weight of the plaintiff's argument is Argued December 7, 1908. Decided Decem that he is taxed for what he does not own. The ber 21, 1908. IN State of New York to review a judge N ERROR to the Supreme Court of the ment entered pursuant to the mandate of the Court of Appeals of that state, which affirmed a judgment of the Appellate Division of the Supreme Court for the First Judicial Department, affirming a judgment of the Supreme Court in and for the County of New York, sustaining a demurrer to the complaint in a suit to enjoin municipal bill seems to have been drawn on the dominant notion of a right attached specifically to the mortgaged property,—that is to say, the the property represents so many units of value, from which the mortgage subtracts so many, leaving only the remainder subject to be taxed; and this is the plaintiff's view. But there is a subor dinate averment that the plaintiff has not been assessed for taxes in respect of personal property, and the allegation seems to convey, by indirection, that no deduction of the mortgage debt has been made from personal property, and to admit that such a deduction would have set the city right. As to the former notion, it will be observed that the mortgages were given by the plaintiff, and therefore charged him, as well as Messrs. David Rumsey and Francis K. his land. If he should die, by the law of Pendleton for defendant in error. taxation. Affirmed. See same case below in Court of Appeals, 187 N. Y. 552, 80 N. E. 1114. The facts are stated in the opinion. ror. Mr. Justice Holmes delivered the opinion of the court: This is a bill to prevent the city of New York from completing the levy of a tax and thereby creating a cloud upon the plaintiff's title. The plaintiff owns lots numbered 592, 594, and 596 on Seventh avenue, subject to mortgages for $70,000 and $45,000, given by him. The premises have been valued, as the first step toward taxation, at $160,000, and it is alleged upon information and belief that this valuation makes no deduction for the mortgages. The ground of the bill, so far as it is before us, is that the tax, if completed, will be contrary to the New York his personal property would have that would be insured at different rates to stitutional that does not make allowance 14th Amendment. Some criticism might be made and was made on the form of the al- for all obligations and debts,—a conclusion legations, but we will take them as present that the plaintiff seems to accept, while he ing what we believe they were intended to does not make it plain that he does not represent, the question whether, consistent-ceive, both in law and in fact, such an ally with the Constitution of the United lowance by a deduction of debts from perStates, a man owning land subject to a mortgage can be taxed for the full value of the land, while, at the same time, the mortgage debt is not deducted from his personal estate. A demurrer to the bill was sustained by the courts below. sonal estate. It cannot matter to the plaintiff's argument whether the obligation is directed to a specific object or to the whole mass of objects owned by the party bound. one case, as much as in the other, the obliga In the For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |