Opinion of the Court-Walters, District Judge.

tance between Neil and the engine would suffice for Neil to step off the track in ample time to avoid being run down.

There is no testimony in the record whatever which proves or tends to prove that the defendant's employees on the engine failed to make every possible effort to stop the locomotive after they or any of them had reason to believe that Neil was not aware of the approach of the locomotive. Neil testified that he was told immediately after the accident by the brakeman of the defendant company, who was riding on the engine, that he had noticed Neil on the track and noticed him there until the engine was about a car's length, but it further appears that the brakeman thought that Neil would step. off the track, and it would appear that there was ample opportunity for him to do so.

The former opinion of this court discloses that this class and character of cases has received the attention of a great many of the courts, both federal and state, and the holding has quite uniformly been that trainmen in a switch yard, noting another railroad employee on the track, have a right to presume, when the engine is not traveling at an excessive speed, and when they are giving due and sufficient warning of the approach of the engine, that the employee on the track will step aside and avoid injury, and that they are authorized in so presuming until they are in some manner made aware that such person on the track is not aware of the approach of the engine, or is laboring under some disability which prevents him from protecting himself, and if such appears a fact, then they are chargeable with using every effort at their command to immediately stop their engine and avoid the impending injury.

A case very similar to the one here under consideration is Aerkfetz v. Humphreys, 145 U. S. 418, 12 Sup. Ct. 835, 36 L. ed. 758, wherein it is said:

"The engine was moving slowly, so slowly that any ordinary attention on the part of the plaintiff to that which he knew was a part of the constant business of the yard would have made him aware of the approach of the cars, and enabled him to step one side as they moved along the track. It

Opinion of the Court-Walters, District Judge.

cannot be that, under these circumstances, the defendants were compelled to send some man in front of the cars for the mere sake of giving notice to employees who had all the time knowledge of what was to be expected."

This court has heretofore held in Anderson v. Great Northern Ry. Co., 15 Ida. 513, 99 Pac. 91, that "when an engineer sees an adult on the track ahead of him, he ordinarily has a right to presume that he will get off the track before the train reaches him."

In Campbell v. Kansas City etc. R. Co., 55 Kan. 536, 40 Pac. 997, it is said:

"It was contended that Campbell was seen 500 feet ahead of the engine, and therefore the engineer should have stopped the train before reaching him. An engineer, however, is not bound to stop a train whenever he sees a person ahead upon the railroad, but has a right to assume that an adult person, apparently in the possession of his faculties, will exercise his senses, and step out of the way of danger before the engine reaches him. The engineer is required to keep a reasonable lookout for trespassers upon the track, and to exercise such care as the circumstances require to prevent injury to them. Campbell was undoubtedly seen by the engineer several hundred feet away; but he was awake and moving and appeared to be in the full possession of all his senses and faculties. Although there were some piles of ballast along the track, he could have stepped aside without difficulty; and, as there was no apparent disability, the engineer had a right to presume until the last moment that he would heed the warning which had been given, and leave the track in time to avoid injury. . . . . Campbell was a man of mature years, who had the use of his faculties; and, as he was moving and apparently capable of taking care of himself, the engineer had a right to presume until the last moment that he would leave the track, and not be run over."

Other cases wherein it has been held that plaintiff could not recover under facts similar to those disclosed by this record are as follows: Smith v. Atlanta & C. R. Co., 130 N. C. 344, 42 S. E. 139; Pennsylvania Co. v. Meyers, 136 Ind. 242,

Opinion of the Court-Walters, District Judge.

36 N. E. 32; Louisville & N. R. Co. v. Cronbach, 12 Ind. App. 666, 41 N. E. 15; Cincinnati etc. Ry. Co. v. Long, 112 Ind. 166, 13 N. E. 659; Carrier v. Missouri Pac. Ry. Co., 175 Mo. 470, 74 S. W. 1002; Hogan v. Chicago etc. R. Co., 59 Wis. 139, 17 N. W. 632; Norfolk & W. R. Co. v. Gesswine, 144 Fed. 56, 75 C. C. A. 214; Copp v. Maine Central R. Co., 100 Me. 568, 62 Atl. 735; Everett v. Los Angeles etc. Ry. Co., 115 Cal. 105, 43 Pac. 207, 46 Pac. 889, 34 L. R. A. 350; Bookman v. Seaboard Air Line Ry., 152 Fed. 686, 81 C. C. A. 612; Erickson v. St. Paul etc. R. R. Co., 41 Minn. 500, 43 N. W. 332, 5 L. R. A. 786; Norfolk & Western R. Co. v. Dean's Admr., 107 Va. 505, 59 S. E. 389; Atlantic Coast Line R. Co. v. Miller, 53 Fla. 246, 44 So. 247.

We conclude that the motion for a nonsuit made by the defendant at the close of plaintiff's testimony was by the court properly granted, and the judgment of dismissal and denial of motion for new trial should be, and is, hereby affirmed. Costs awarded to respondent.

Ailshie, C. J., and Sullivan, J., concur.

Points Decided.

(June 27, 1914.)

IDAHO POWER & LIGHT COMPANY, a Corporation, Plaintiff, v. J. A. BLOMQUIST, A. P. RAMSTEDT and D. W. STANDROD, as the Public Utilities Commission of the State of Idaho, Defendants, and THE BEAVER RIVER POWER COMPANY, a Corporation, Plaintiff, v. J. A. BLOMQUIST, A. P. RAMSTEDT and D. W. STANDROD, as the Public Utilities Commission of the State of Idaho, Defendants.

PUBLIC UTILITIES

[141 Pac. 1083.]

ACT - PUBLIC UTILITIES COMMISSION CONSTITUTIONAL LAW STATUTORY CONSTRUCTION - LEGISLATIVE POWERDELEGATION OF CITY ORDINANCE-CONTRACTS AND VESTED RIGHTSORDERS OF COMMISSION-REVIEW OF BY COURTS-CERTIORARI.

1. The act known as the "Public Utilities Act" was passed at the twelfth session of the Idaho legislature, which session was adjourned on the 8th day of March, 1913, and said act was approved by the governor on March 13, 1913, and went into effect sixty days after the adjournment of said session of the legislature, to wit, on the 8th day of May, 1913. (Sess. Laws 1913, p. 247.) Said act provided for the organization of a public utilities commission and defined its powers and duties, and also the rights, remedies, powers and duties of public utilities, their officers, agents and employees, and the rights and remedies of patrons of public utilities.

2. Under the provisions of sec. 10 of art. 4 of the constitution, every bill passed by the legislature becomes a law upon the approval and signing of the same by the governor.

3. All property devoted to public use is held subject to the power of the state to regulate or control its use in order to secure the general safety, health and public welfare of the people, and when a corporation is clothed with rights, powers and franchises to serve the public, it becomes in law subject to governmental regulation and control.

4. The legislature has plenary power in all matters of legislation except as limited by the constitution.

5. There is nothing in the constitution that prohibits the legislature from enacting laws to regulate and control public utility corporations.

6. The police power of the state is sufficiently broad and comprehensive to enable the legislature to regulate by law public utili

Points Decided.

ties in order to promote the health, comfort, safety and welfare of the people, and thus regulate the manner in which public utility corporations shall construct their systems and carry on their business within the state.

7. Under the state's police power, the legislature has authority to authorize said utility commission to determine whether a duplication of an electrical plant is required in a town or city for the convenience and necessity of the inhabitants.

8. Under the provisions of said act, the commission has power absolutely to fix the rates, and it is unlawful for the utility to charge more or less than the rates so fixed.

9. Formerly competition was supposed to be the proper means of protecting the public and promoting the general welfare in respect to service of public utility corporations, but experience has demonstrated that public convenience and public needs do not require the construction and maintenance of numerous instrumentalities in the same locality, but, rather, the construction and maintenance only of those necessary to meet the public necessities, when such utilities are properly regulated by law.

10. Said public utilities act provides that competition between public utility corporations of the classes specified shall be allowed only where public convenience and necessity demand or require it.

11. Sec. 18, art. 11, of the state constitution prohibits combinations for the purpose of fixing prices or regulating production, and requires the legislature to pass appropriate laws to enforce the provisions of that section, and said public utilities act is justified by the provisions of said section, since its ultimate effect will be to prevent unreasonable rates and combinations by public utilities.

12. Unregulated competition is the tool of unregulated monopoly. 13. Under the provisions of said act, unregulated competition is not needed to protect the public against unreasonable rates or unsatisfactory service; and there can now be no justification for unregulated competition or a duplication of utility plants under the pretense of preventing monopoly.

14. Experience and history clearly show that public utility corporations cannot be safely intrusted to properly serve the public until they are regulated and placed under public control.

15. The legislature has ample power to give the public utilities commission authority to refuse to give a certificate of convenience and necessity to a public utility where it seeks to duplicate a plant or system that is amply sufficient to serve properly the inhabitants of a community.