Opinion of the Court.

discretion, could limit the use to the extent deemed by it advisable, and could and did delegate to the municipality the power to assert such authority. The court said:

"There is no evidence before us to show that the power of the legislature over the common is less than its power over any other park dedicated to the use of the public or over public streets the legal title to which is in a city or town. Lincoln v. Boston, 148 Mass. 578, 580. As representative of the public it may and does exercise control over the use which the public may make of such places, and it may and does delegate more or less of such control to the city or town immediately concerned. For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house. When no proprietary right interferes the legislature may end the right of the public to enter upon the public place by putting an end to the dedication to public uses. So it may take the less step of limiting the public use to certain purposes. See Dillon Mun. Corp. secs. 393, 407, 651, 656, 666; Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234, 243, 244.

"If the legislature had power under the constitution to pass a law in the form of the present ordinance, there is no doubt that it could authorize the city of Boston to pass the ordinance, and it is settled by the former decision, Commonwealth v. Davis, 140 Mass. 485, that it has done so."

It is, therefore, conclusively determined there was no right in the plaintiff in error to use the common except in such mode and subject to such regulations as the legislature in its wisdom may have deemed proper to prescribe. The Fourteenth Amendment to the Constitution of the United States does not destroy the power of the States to enact police regulations as to the subjects within their control, Barbier v. Connolly, 113 U. S. 27, 31; Minneapolis & St. Louis Railway Co. v. Beckwith, 129 U. S. 26, 29; Giozza v. Tiernan, 148 U. S. 657; Jones v. Brim, 165 U. S. 180, 182, and does not have the effect of creating a particular and personal right in the

Syllabus.

citizen to use public property in defiance of the constitution. and laws of the State.

The assertion that although it be conceded that the power existed in the State or municipality to absolutely control the use of the common, the particular ordinance in question is nevertheless void because arbitrary and unreasonable in that it vests in the mayor the power to determine when he will grant a permit, in truth, whilst admitting on the one hand the power to control, on the other denies its existence. The right to absolutely exclude all right to use, necessarily includes the authority to determine under what circumstances such use may be availed of, as the greater power contains the lesser. The finding of the court of last resort of the State of Massachusetts being that no particular right was possessed by the plaintiff in error to the use of the common, is in reason, therefore, conclusive of the controversy which the record presents, entirely aside from the fact that the power conferred upon the chief executive officer of the city of Boston by the ordinance in question may be fairly claimed to be a mere administrative function vested in the mayor in order to effectuate the purpose for which the common was maintained and by which its use was regulated. In re Kollock, 165 U. S. 526, 536, 537. The plaintiff in error cannot avail himself of the right granted by the State and yet obtain exemption from the lawful regulations to which this right on his part was subjected by law. Affirmed.

NORTHERN PACIFIC RAILROAD COMPANY v.

POIRIER.

ERROR TO THE COURT OF APPEALS FOR THE NINTH CIRCUIT.

No. 295. Argued April 27, 28, 1897. - Decided May 10, 1897.

A brakeman on a regular train of a railroad and the conductor of a wild train on the same road are fellow-servants, and the railroad company is not responsible for injuries happening to the former by reason of a collision of the two trains, caused by the negligence of the latter, and by his disregard of the rules of the company.

Statement of the Case.

THIS was an action originally brought in a court of the State of Washington, and which was removed into the Circuit Court of the United States for the District of Washington.

The plaintiff in his complaint alleged that, on the 7th day of December, 1892, while in the employ of the Northern Pacific Railroad Company as a brakeman, he received personal injuries of a severe character occasioned by the negligence of the defendant company. The plaintiff recovered a verdict in the sum of $21,600, which was reduced, upon the election of the plaintiff, to avoid a new trial, to the sum of $7500, for which judgment was entered. The case was taken to the Circuit Court of Appeals of the Ninth Circuit, where the judgment of the trial court was affirmed. The case was then brought to this court on a writ of error to the judgment of the Circuit Court of Appeals. The principal facts of the case are thus stated in the opinion of the Circuit Court of Appeals:

"The collision occurred about midnight. The first train was a regular local freight train, running on schedule time, under the management, control and direction of the conductor. The second train was running under telegraphic orders, without any schedule or time card, known in railroad parlance as a wild train.' At Moscow, a station on the railroad, the second train was standing upon the track when the first train left that station. At Vollmer, another station, the first train stopped to drop some cars. It was detained about ten minutes, when it resumed its course over the mountain grade. The second train was then in sight, standing on the track, a short distance in the rear, with its lights plainly visible. Clyde Spur, where the collision occurred, is about six miles from Vollmer. It is a place on the road where there is a spur track running out to a logging camp where saw logs and cordwood are loaded on the cars. There is a side track or switch upon which cars are left to be run out on the spur track. It is not a regular station, and the regular freight train only stops there when there are empty cars to be left or loaded ones to be taken away. The first train, on

VOL. CLXVII-4

Statement of the Case.

the night in question, had certain cars to be left at this place, and stopped there for that purpose. There were three brakemen on the train. The head brakeman, when the train was slowing up, left his place and started forward to open the switch. The rear brakeman, at this time, saw the second train rounding a curve in the road, and immediately signalled it to stop, and at the same time shouted as loud as he could. The second train was then about one quarter of a mile behind the first train. The first train had barely come to a full stop when the second train, moving at a speed of about four miles an hour, struck it by running the cow-catcher of its engine under the rear end of the caboose on the first train. The conductor of the first train had been lying down, but was in his seat in the lookout of the caboose, and passed out of the rear end just before the collision occurred. The conductor of the second train had not been informed that the first train would stop at Clyde Spur."

By the shock caused by the collision of the two trains the plaintiff, who was acting as middle brakeman, was thrown from the car on which he was standing, and received severe injuries.

In the plaintiff's complaint it was alleged "that the said defendant, the Northern Pacific Railroad Company, was guilty of carelessness and negligence in this, that the conductor of said first train well knew that said second train was following said first train and failed to leave a flagman in the rear of said first train before and at the time said first train stopped at said Clyde Spur, to hold and stop said second train, as he was in duty bound to do; that the place where said collision occurred was on a mountain grade, and the said defendant, the Northern Pacific Railroad Company, was guilty of carelessness and negligence in allowing said second train to follow the first train closely, and was guilty of carelessness and negligence in running the second train into said first train, whereby the plaintiff was injured as aforesaid." The defendant, answering, denied negligence on its part, and alleged that plaintiff's injuries were owing to and caused by his contributory negligence and by the carelessness and negligence of his

Opinion of the Court.

fellow-servants. It is admitted in the brief of the plaintiff in error that the defence of contributory negligence on the part of the plaintiff was not made out, and the controversy resolves itself into the question whether the plaintiff's injuries were caused by the negligence of his fellow-servants within the rule on that subject.

Before the trial, and on the application of the attorneys for the plaintiff, it was ordered that Thomas F. Oakes, Henry C. Paine and Henry C. Rouse, the receivers of the defendant company, be, and they were thereby, made parties defendant in the action.

Mr. C. W. Bunn for plaintiffs in error.

Mr. S. C. Hyde for defendant in error.

MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.

At the close of the evidence the plaintiff moved the court to give the following instruction:

"In this case there is no evidence that the defendant, the Northern Pacific Railroad Company, was guilty of any negli gence which caused the accident by which plaintiff was injured, or which contributed thereto, and that if there was any negligence it was that of the engineer and conductor, or one of them, of the second train, and such conductor and engineer being fellow-servants of the plaintiff, there would be no liability therefor on the part of the railroad company, and therefore you will return a verdict for the defendants."

The refusal of the trial court to give this instruction was assigned for error in the Circuit Court of Appeals, and the ruling of the latter court in affirming such refusal is complained of in the first assignment in this court.

This request assumes that there was no evidence of negli gence on the part of the conductor of the first train sufficient to submit to the jury. The trial court said as to this question: "The particular negligence charged against the railroad com