of which the deceased was engineer, proceeding southward on a lead track, approached or was traversing a railroad yard. Ahead-the distance not being specifically defined-on a yard track connecting with, and to the left of, the lead track there stood some loaded coal cars which, while visible to the engineer from the right side of the engine, became more and more shut off from his view as the train advanced. The engineer asked the fireman, who was on the left side of the engine and therefore in full view of the cars, whether they were clear of the lead track and was answered that they were. There is a dispute as to whether a head brakeman was riding in the cab and whether subsequently, if there, he called the engineer's attention to the fact that the coal cars were not clear. But there is no dispute that the engineer again asked the fireman who answered that the cars were not clear and jumped from the locomotive. The engineer, having shut off his power, stepped to the left side where from the collision which immediately resulted he received the injuries from which he subsequently died.

Whatever may be the difficulty of distinguishing in many cases between the application of the doctrine of assumption of risk and the principles of contributory negligence, that there is no such difficulty here is apparent since the facts as stated absolutely preclude all inference that the engineer knew or from the facts shown must be presumed to have known that the coal cars were protruding over the track on which he was moving and deliberately elected to assume the risk of collision and great danger which would be the inevitable result of his continuing the forward movement of his train.1

1 Union Pacific Railway v. O'Brien, 161 U. S. 451; Texas & Pacific Railway v. Archibald, 170 U. S. 665; Texas & Pacific Railway v. Behymer, 189 U. S. 468; Choctaw, Oklahoma &c. R. R. v. McDade, 191 U. S. 64; Schlemmer v. Buffalo, Rochester &c. Ry., 205 U. S. 1, 12; S. C., 220 U. S. 590; Seaboard Air Line v. Horton, 233 U. S. 492, 503-504.

The impossibility of deducing assumption of the risk from the facts stated is cogently demonstrated by the arguments advanced to establish that the risk was assumed. Thus it is urged that as in a railroad yard there was danger to arise from the protrusion of cars negligently placed by employés of the company, a danger which the engineer must have known might arise, therefore he assumed the risk of such danger. And again the argument is that even although the engineer did not know of the protruding cars and therefore did not consciously incur the great risk to result from the collision, yet as by proper precaution he could have discovered the fact that the cars were protruding, he must be considered to have assumed the risk which resulted from his want of care. But both these arguments have no relation to the doctrine of assumption of the risk and only call for the application of the principle of contributory negligence or of fellow servant.

Affirmed.

EASTERLING LUMBER COMPANY v. PIERCE.

ERROR TO THE SUPREME COURT OF THE STATE OF

MISSISSIPPI.

No. 589. Submitted November 30, 1914.-Decided December 14, 1914.

A classification based on the use of engines, locomotives and cars propelled by steam, electricity, gas, gasoline or lever power and running on tracks, in a state statute, abolishing the principle of negligence of fellow servant as a defense to actions against corporations and individuals for damages, is not so unequal as to deny equal protection of the law under the Fourteenth Amendment; and so held as to chap. 194, Laws of Mississippi of 1908.

A state statute which cuts off no substantive defense but simply provides a rule of evidence controlling the burden of proof, does not deny

due process of law even when applied in the trial of an action for injuries sustained prior to the enactment of the statute; and so held as to chap. 215, Laws of Mississippi of 1912, making proof of the happening of an accident a prima facie presumption of negligence. 64 So. Rep. 461, affirmed.

THE facts, which involve the constitutionality under the Fourteenth Amendment of two statutes of Mississippi, one abolishing the defense of fellow servant in certain cases, and the other creating a presumption of negligence in certain cases, are stated in the opinion.

Mr. Edward Mayes and Mr. T. Brady, Jr., for plaintiffs in error.

Mr. Joseph Hirsh and Mr. E. L. Dent for defendant in

error.

Memorandum opinion by direction of the court, by MR. CHIEF JUSTICE WHITE.

The injuries for which damages were awarded by the judgment sought to be reviewed (64 So. Rep. 461) happened on a steam logging railroad engaged in purely domestic business. The power to here review is based on two constitutional grounds seasonably asserted below assailing two state statutes, the one (chap. 194, Miss. Laws of 1908, p. 204) enacted before the accident, doing away in the cases for which it provided with the principle of fellow servant; and the other (chap. 215, Miss. Laws of 1912, p. 290), enacted after the happening of the accident but before the trial below, providing that from the proof of the happening of an accident there should arise a prima facie presumption of negligence.

The constitutional objection to the first statute is that the classification for which it provided was so unequal as to cause the statute to be in conflict with the Fourteenth

Amendment. The classification was this: "Every employé of a railroad corporation, and all other corporations and individuals, using engines, locomotives or cars of any kind or description whatsoever, propelled by the dangerous agencies of steam, electricity, gas, gasoline or lever power, and running on tracks, That the objection is without merit is so clearly established as to require only references to the decided cases to that effect.1

The objection to the second statute is that it was wanting in due process because retroactively applied to the case since the statute was enacted after the accident occurred. But the court below held that the statute cut off no substantive defense but simply provided a rule of evidence controlling the burden of proof. That as thus construed it does not violate the Fourteenth Amendment to the Constitution of the United States is also so conclusively settled as to again require nothing but a reference to the decided cases.2

As it results that at the time the writ of error was sued out it had been conclusively settled by the decisions of this court that both grounds relied upon were devoid of merit, we think the alleged constitutional questions were too frivolous to sustain jurisdiction and we therefore maintain the motion which has been made to dismiss and our judgment will be

Dismissed for want of jurisdiction.

1 Tullis v. Lake Erie & W. R. R., 175 U. S. 348; Minnesota Iron Co. v. Kline, 199 U. S. 593; Louisville & Nashville R. R. v. Melton, 218 U. S. 36; Aluminum Company v. Ramsey, 222 U. S. 251.

2 Mobile, J. & K. R. R. v. Turnipseed, 219 U. S. 35, 42-43; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 82; Reitler v. Harris, 223 U. S. 437, 441–442; Luria v. United States, 231 U. S. 9, 25-27.

235 U.S.

Argument for Automobile Supply Co.

LOVELL MCCONNELL MANUFACTURING COMPANY v. AUTOMOBILE SUPPLY MANUFACTURING COMPANY.

APPLICATION FOR LEAVE TO FILE PETITION FOR MANDAMUS OR FOR A WRIT OF CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

No. 722. Motion for leave to file petition for writ of mandamus or certiorari, submitted November 16, 1914.-Decided December 14, 1914.

In this case a petition for mandamus directing the court below to correct its action is denied and a petition for certiorari granted, and the parties having so stipulated, the papers filed are treated as the record, and the case regarded as submitted for decision on the merits. Although the provisions in the Act of February 13, 1911, c. 47, 36 Stat. 901, in regard to clerk's fee for supervising printing the record, may not apply to appeals from every interlocutory decree, it does apply where the decree, as in this case, although interlocutory in character, is, within the intendment of the statute, a final decree. Smith v. Farbenfabriken of Elberfeld Co., 197 Fed. Rep. 894, approved.

THE facts, which involve the construction of the act of February 13, 1911, 36 Stat. 901, amending the fee bill and its application to interlocutory decrees, are stated in the opinion.

Mr. Irving M. Obrieght and Mr. George C. Dean, for Lovell-McConnell Co., in support of the motion.

Mr. C. A. L. Massie and Mr. Ralph Lane Scott, for Automobile Supply Co., in opposition to the motion:

The act of February 13, 1911, deals with a review by a Court of Appeals upon either "writ of error" or "appeal," as the case may be of "the final judgment or decree." The present controversy arises upon an appeal from an "interlocutory" decree, therefore the act does not here apply.