,The L egal 
 
 LI HD7102.U4C5r^'=^="^^"'"" IMPLOYERS 
 
 I The legal liability of employers for inq __ 
 
 3 1924 002 403 503 
 
 HO 
 
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 » Their 
 n the 
 
 United States 
 
 BY 
 
 LINDLEY D. CLARK 
 
 a! 
 
 Published in Bulletin No- 74 of the 
 United States Bureau of Labor 
 
 WASHINGTON, D. C. 
 1908 
 
CORNELL UNIVERSITY 
 
 LIBRARY 
 
 NEW YORK STATE SCHOOL 
 
 OF 
 
 INDUSTRIAL AND LABOR 
 
 RELATIONS 
 
 THE GIFT OF 
 
 The Family of 
 
 Dr. I M. RuBiNOW 
 
 1875-1936 
 
BULLETIN 
 
 BTJEEATJ OF LABOE 
 
 No. 74. WASHINGTON. January, 1908. 
 
 THE LEGAI IIABILITY OF EMPLOYERS FOR INJURIES TO THEIR 
 EMPLOYEES, IN THE UNITED STATES. 
 
 BY LINDLEY D. CLARK, A. M., LL. M. 
 
 Although the English common law lies at the foundation of our 
 doctrine of employers' liability, this doctrine is continually undergoing 
 change, both by the rulings of State and National courts and by the 
 enactment of numerous statutes passed with a view to a more exact 
 definition of the rights of the employee or to some amelioration of 
 his condition in other respects. The principles of the common law are 
 so differently interpreted in the various juri'sdictions that State names 
 are given to certain applications of them, indicative of a locally rec- 
 ognized view which is not in accord with the generally accepted con- 
 struction of the law ; while the statutes range in form and effect from 
 a mere restatement of the common law to an abrogation of it in some 
 more or less inclusive degree and the enactment of rules varying con- 
 siderably both from it and from one another. 
 
 The great volume of litigation on the subject has not effected re- 
 sults of a conclusive character, mainly, perhaps, because of the fact 
 that it is largely an effort to determine the boundaries between the 
 risks assumed under the law by an injured employee and the unlawful 
 negligence of the employer in causing or permitting dangerous con- 
 ditions to exist. The definitions of these factors often have not been 
 accurately drawn, nor have those formed been so generally accepted 
 as to secure uniformity. Again the view formerly prevalent favored 
 ■the entire assumption of the risk by the employee, while the gradual 
 1 growth of the doctrine of the duty of his protection by the employer 
 has given "ise taa vajietvof decisions and statutory enactments, with 
 
 fiEw mi sm^TmT ' 
 
 INDUSTHIAL Af:0 LABCe eELATIONS 311l6 
 
 CORNELL UNIVERSITY 
 
1 BULLETIN OP THE BUKEATJ OF LABOR. 
 
 .the result that we now have in the United States a body of law and 
 practice that is in effect largely of the nature of a compromise. It 
 is the purpose of the present undertaking to set forth with some com- 
 pleteness the more important principles of the common law as gen- 
 erally applied to this subject in this country, together with such local 
 variations as may appear ; also to repi'oduce the statutory provisions 
 of those States which have passed enactments on the subject, jjresent- 
 ing the construction put thereon where they have been reviewed 
 by the superior State courts or the Federal courts. 
 
 COMMON LAW LIABILITY. 
 
 The doctrine of the employer's liability under the common law 
 is presented under the heads of the duties and the defenses of the 
 employer. 
 
 THE DUTIES OF EMPLOYERS. 
 
 As already stated, the two principal factors of the problem are the 
 duty of the employer to protect his employee in the discharge of the 
 duties of his employment and the assumption by the employee of the 
 risks involved in the undertaking in which his contract of emploj'- 
 ment engages him. The duty of the employer is first considered, 
 but it will be found impossible to discuss it without constantly 
 bearing in mind the modifications that result from the existence of 
 the complementary obligations resting on the employee. 
 
 The briefest statement of the rule governing the employer is that 
 he is required to use due care for the safety of his employees while 
 they are engaged in the performance of their work. This is taken 
 to include all reasonable means and precautions, the facts in each par- 
 ticular case being taken into consideration. If such provisions have 
 been made as a reasonably prudent man would supplj" if he himself 
 were exposed to the dangers of the servant's position, no negligence 
 would appear. In the case of corporations the Supreme Court fixes 
 the duty at the use of such caution and foresight as a corporation 
 controlled by careful, prudent officers ought to exercise. (") 
 
 Though the courts of review have condemned any instructions that 
 Avould tend to charge the employer with a higher degree of care than 
 that which may be defined as ordinary, the measure is not an abso- 
 lute one, but is proportioned to the dangers to which the employee 
 is exposed. The ordinarj' incidents of railroading, mining, and cer- 
 tain classes of manufacturing are in themselves, in comparison with 
 general employments, unusuallj' dangerous; and so of a large rail- 
 road yard as compared with a smaller one, an express train as com- 
 pared with a freight train, or a gaseous mine with one in which no 
 
 " Wabash K. Co. v. McDaniels (1SS2), 107 U. S. 454, 2 Sup. Ct. 932. 
 
employees' liability in the united states. 3 
 
 such dangers exist. In such cases as these, or when temporarily 
 abnormal conditions prevail, ordinary care is advanced far beyond 
 the requirements* of the less dangerous conditions. On the other 
 hand, care may lawfully be relaxed if the risk is unusually slight or 
 if a device is for a specific and transitory use. The general rule as 
 to care is qualified by the youthfulness or inexperience of an em- 
 ployee, a greater degree of care being commonly required for the 
 protection of such persons ; nor is the master relieved by the fact that 
 a servant of tender years misrepresented his age in order to secure 
 the employment. ('') 
 
 PLACE AND INSTETTMENTALITIES. 
 
 Tools and appliances. 
 
 In accordance with the rule as to due care, the obligation rests on 
 the master to supply tools and appliances that are reasonably safe for 
 the intended use and reasonably well adapted to perform the work 
 in contemplation. These miist be provided at the place of use or at 
 a place of such ease of access as to be reasonably procurable. 
 
 Place and materials. 
 
 Closely related is the duty to provide a safe place to work and 
 proper material for use, the measure still being not absolute but 
 reasonable or adequate safety. The distinction betAveen place and 
 appliance is not an easy one to draw, though the courts are stricter 
 in their requirements as to the former than to the latter. Thus, if 
 a scaffold furnished by an employer be regarded as a place to work, 
 he is responsible not only for the materials supplied, but also for the 
 construction and maintenance ; while if it be viewed only as an appli- 
 _ance, he must make reasonable provision therefor, but its insuffi- 
 ciency, if such there be, may be laid to the account of the fellow- 
 workmen of an injured employee, or perhaps to his own negligence 
 in erection. (*) 
 
 New devices. 
 
 What may be required in the waj' of improvement and alteration 
 or in the adoption of new devices to accomplish the ends of safety is 
 governed largely by the usual and ordinary course of procedure of 
 those in the same business. The employer can not be made an in- ' 
 surer, nor is he bound to introduce the newest and safest appliances. 
 On the other hand, he can not be allowed to disregard all inventions 
 for securing the safety and comfort of his workmen. But as new 
 
 "Am. Car & Foundry Go. v. Armentraut (1905), 214 III. 509, 73 N. E. 766. 
 6 Butler V. Townsend (1891), 126 N. Y. 105, 26 X. E. 1017; Hoveland v. 
 National Blower Works (1908), 114. N. W. 795. (Wis.) 
 
4 BULLETIN OF THE BUEEAU OF LABOE. 
 
 devices become more generally, used, the standard of the custom of 
 prudent men will become correspondingly altered, and the law of 
 general usage may compel the adoption of devices the omission of 
 which had not previously been considered as negligence. (") This rule 
 operates more effectively in the case of installing new equipments or 
 of beginning a new undertaking than where the question is one of the 
 continuance or modification of established conditions. 
 
 The doctrine that the employer is bound to safeguard his employees 
 from exposure to needless and unreasonable risks is subject to the gen- 
 eral qualification that one has the right to carry on a business which 
 is dangerous, either in itself or because of the manner in which it is 
 conducted, provided it does not interfere with the rights of others, 
 without incurring liability to a servant who is capable of contract- 
 ing and who knows the dangers attendant on employment in the cir- 
 cumstances. (*) A brief statement of the rule is that the employer has 
 a right to exercise a reasonable judgment and discretion in the con- 
 duct of his affairs, and it is said that it would be a very extraordinary 
 case indeed in which this right would be interfered with.(') This 
 does notj however, permit the use of unreasonably dangerous appli- 
 ances nor those which are in themselves defective or so obsolete and 
 inferior that their adoption or retention Avould of itself indicate 
 negligence, (") though the question is held to be one not of compara- 
 tive safety but of reasonable safety. No fixed rule of liability is pos- 
 sible, therefore, in this respect, each case being of necessity decided 
 on its own merits. 
 
 Where a convenience is of great advantage, its adoption may be 
 classed as obligatory, at least where the change involves but small 
 cost. It is not clear how far expense may be offered as a defense, no 
 case being at hand in which that alone was held to relieve the 
 employer from the duty of correcting abnormally dangerous condi- 
 tions. In Alabama, however, the cost and the effect on public inter- 
 ests were considered as so affecting the requirement that the employer 
 was not held negligent as matter of law in a case where a low bridge 
 over a railroad could be changed only at large expense and the . 
 marked inconvenience of several members of the public. (*) 
 
 Repair. 
 
 The same care is required of the master in maintaining as' in fur- 
 nishing safe and suitable appliances. (^) Inasmuch, however, as the 
 progress of work and the use of tools produce constantly changing 
 
 "Mason v. Richmond & D. R. Co. (1892), 111 N. C. 482,16 S. E. 698. 
 i-Tuttle V. Detroit, etc., Ry. (1887), 122 U. S. 189, 7 Sup. Ct. 1166. 
 "Clioctaw, O. & G. R. Co. v. McDaae (1903), 191 U. S. 6-1, 24 Sup. Ct. 24. 
 « Louisville & N. R. R. Co. v. Hall (1890), 91 Ala. 112, 8 So. 371. 
 e Moore v'. Wabash, St. L. & P. R. Co. (1885), 85 Mo. 588. 
 
EMPLOYEES LIABILITY IN THE UNITED STATES. 5 
 
 conditions, the doctrine that reasonably safe places and appliances 
 must be provided is frequently modified by the statement that the 
 duty has been discharged when ordinary or reasonable care has been 
 exercised in the effort to make such provision. (") The continued em- 
 ployment of tools that are so worn as to increase the danger of their 
 use will in general entail liability on the employer. If, however, 
 the danger is an obvious one, the employee, continuing to work with 
 a knowledge of the danger and without complaint, will be considered 
 to have assumed the risk, and in case of injury has no recovery ; nor 
 will liability attach until the employer has or reasonably could have 
 information of the defect requiring repair. 
 
 Here, again, qualifications abound, the usage of the trade, the cus- 
 tom of the shop, and the nature of the instrumentality each being a 
 factor. Simple repairs may customarily be made by the users of the 
 tools, in which case the employer is without liability. If a machinist 
 is employed to make repairs, a workman injured while attempting to 
 repair his own machine is without right of action. Perishable appli- 
 ances, such as ropes, belts, etc., which wear out constantly from use, 
 should be renewed at proper intervals if the master is to stand clear 
 of the charge of negligence. 
 
 Intended use. 
 
 Liability attaches only where the injury is the result of the use of 
 an appliance for the work and in the manner for which it was fur- 
 nished. Thus the common practice of workmen riding on elevators 
 intended only for freight is at the risk of the workman ; (*) so, also, of 
 the use of one ladder for splicing to another when it was intended 
 solely for use alone. (°) Continued indulgence in a practice with the 
 master's acquiescence, however, or the adaptation of an appliance to 
 new uses by the master himself or by a representative, qualifies this 
 rule, so that if such use involves increased danger and a servant is in- 
 jured thereby the master can not defend by pointing out the deviation 
 from the original use or showing that the instrumentality was suitable 
 therefor. ('^) 
 
 Customary method. 
 
 In close connection with the above is the rule that the employer is 
 not liable to an employee for an injury incurred by a departure from 
 the customary method of performing work or by leaving the place of 
 his employment to work in some other department unless on instruc- 
 
 « Anderson v. Michigan C. R. Co. (1895), 107 Mich. 591, 65 N. W. 585; Reed 
 XI. Stockmyer ,(1896), 20 0. C. A. 381, 74 Fed. 186. 
 6 Kern v. De Castro & D. Sugar Kef. Co. (1890), 125 N. Y. 50, 25 N. E. 1071. 
 "McKay v. Hand (1897), 168 Mass. 270, 47 N. E. 104. 
 ^Lauter v. Duckworth (1897), 19 Ind. App. 535, 48 N. B. 864. 
 
6 BULLETIN OF THE BUKEAXJ OF LABOR. 
 
 lions from a properly authorized representative. (") So if a more dan- 
 gerous method or place. of work is chosen when one less dangerous 
 was available, the resultant injury, if any, does not charge the em- 
 ployer witli liability. C") 
 
 Incomplete, etc., apj>liances. 
 
 A lower standard of the employer's liability prevails where the 
 employee is engaged in the work of repair, or of bringing an unfinished 
 appliance to completion, or of the demolition of a structure. A 
 greater degree of danger is obviously present under such conditions 
 than if the work was proceeding with complete and stable instru- 
 mentalities, and the employee is held to be correspondingly obli- 
 gated to be on his guard, though it is by no means intended to relieve 
 the employer by a general rule. The actual knowledge of the em- 
 ployee may be taken as the ultimate guide in determining liability, 
 and unnecessary and abnormal dangers are not a part of the risk 
 assumed. (") 
 
 Inspection. 
 
 The duty of making rejDairs necessarily involves the duty of dis- 
 covering the need for them as it may arise, which entails the duty 
 of inspection. The duty of maintaining tools and machinery in a 
 reasonably safe and suitable condition is in general on a level with 
 the duty to provide such appliances in the first instance. The in- 
 spection required for such maintenance differs somewhat from that 
 necessary or presumed at the time a new plant or new tools are fii'st 
 brought into use. As to the latter it may first be stated that an 
 employer who makes and supplies an instrumentality is chargeable 
 with such a knowledge of its defects as ordinary care during the course 
 of such manufacture would have disclosed. Subsequent inspections 
 will not relieve him of this liability so long as the defects continue, 
 and notice of such original defects is not necessarj' in order to fix 
 the responsibility of the employer. In case of purchase, the duty of 
 inspection may ordinarily be assumed to have been discharged by 
 the manufacturer, though a showing that the purchase was carelessly 
 made (as, for instance, Avithout indicating to the manufacturer the 
 intended use, so that he might make tests appropriate to such use) 
 has been held to imply negligence. If an article is of an approved 
 pattern and the dealer is a reputable one, the presumption is in favor 
 of the employer's nonliability. Indeed, it is generally considered 
 
 " Stagg ('. Edward Western Tea & Spice Co. (1902), 160 AIo. 489, 69 S. W. 391. 
 "Woryiell v. Maine 0. R. Co. (1887), 79 Me. 397, 10 Atl. 49. •>-_ 
 
 "Colorado Midland R. Co. v. Kaylon (1892), 17 Colo. 501, 30 Pac. 249; but 
 see Brick v. Rochester, N. X. & P. R, Co. (1885), 98 N. T. 211. 
 
employees' liability in xhe united states. 7 
 
 that such facts are conclusive in his favor in the absence of particu- 
 lar facts or circumstances calculated to put a prudent person on his 
 guard. (") This doctrine does not appear to control in Michigan, how- 
 ever, where it has been held to be the diity of the employer to cause 
 thorough inspection of newly purchased articles before putting 
 them into use. (') The duty of a reasonable inspection of purchased 
 appliances is also inferable from a comparatively recent opinion of 
 the Supreme Court of the United States. ('^) In favor of this view is 
 the fact that it accords with the doctrine of nondelegable duties, dis- 
 cussed below, and that it alone affords protection to the employee 
 where there has been actual negligence on the part of the manufac- 
 turer, with whom he has no contractual relations. 
 
 The necessity for inspection of instrumentalities in use obviously 
 varies with the nature of the appliance and the circumstances of em- 
 ployment. Small and simple tools may be used without inspection, 
 the employer being entitled to assume that the workmen will make 
 timely discovery of defects and be suitable judges of the fitness of 
 such tools for use. Complex or dangerous machinery or instrumen- 
 talities that are liable to rapid wear or deterioration must, on the 
 other hand, be the subjects of inspections of a nature and frequency 
 adapted to the conditions indicated. Inasmuch, however, as inspec- 
 tion is only a means to an end, the fact that due provision has been 
 made therefor will not absolve a master from liability where he has 
 actual knowledge of defective conditions through some other means 
 than by inspection. Nor will the proved inadequacy of an inspecting 
 force charge him with liability if it is shown that in any particular 
 instance the appliance involved in the case was in fact properly 
 inspected. 
 
 The duty does not extend beyond a reasonably careful inspection^ 
 though no defect will be considered latent which may be discovered 
 by the exercise of due care. The taking apart of machinery, or such 
 other inspection as would interfere with the profitable conduct of 
 business, is not, in general, required. (*) External appearances, how- 
 ever, may be such as to demand a more thorough inspection; («) so, 
 also, of appliances showing defects in ojjeration or those to which 
 some accident has occurred of a nature likely to cause obscure in- 
 juries, etc. (0 
 
 As to frequency of inspections there is little that can be stated 
 definitely. The nature of the appliance and its liability to change 
 
 <» Reynolds v. Merchants' Woolen Co. (1897), 168 Mass. 501, 47 X. E. 400. But 
 see Erickson v. Am. Steel & W. Co. (190C), 193 JIass. 119, 78 X. E. 701. 
 '' Morton v. Detroit, etc., R. Co. (1890), 81 Mich. 423, 40 N. W. 111. 
 " Richmond & D. R. Co. v. Elliott (1S93), 149 U. S. 206, 13 Sup. Ct. S37. 
 <! Philadelphia & R. R. Co. v- Hughes (1888), 119 Pa. 301, 13 Atl. 280. 
 «Hall V. Emerson-Stevens Mfg. Co. (1900), 94 Me. 445, 47 Atl. 924. 
 t Mooney v. Connecticut River Lumber Co. (1891), 154 Mass. 407, 28 N. E. 352. 
 
e BULLETIN OF THE BUBEAU OF LABOR* i 
 
 under the conditions of use are elements to be reckoned with. Ap- 
 pliances which are much worn or which are not maintained at a good 
 standard of condition according to common usage require more fre- 
 quent inspection than is obligatory with newer and more efficient 
 equipment and methods. 
 
 The modification of the doctrine of safe places in case of unfinished 
 structures and of repairs following accidents applies to the duty of 
 inspection, the probability of defective conditions being a matter of 
 common knowledge, so that the servant making the inspection will 
 be supposed to have assumed the risk. 
 
 Ownership of appliances. 
 
 m 
 
 The duty of inspection above considered assumes the ownership of 
 both appliances and premises to be in the employer. Where owner- 
 ship is di^dded various distinctions exist, based on the relations of 
 the employer and the owner of the premises or instrumentality. 
 The most important of this class of cases are perhaps those in which 
 is involved the handling by railroad companies of cars belonging to 
 other companies. Sjich cars, known in railroading as " foreign " 
 cars, although received only temporarily for purposes of transpor- 
 tation, are as completely identified with the employer's plant as if 
 the transfer was made by purchase, so that the nature of the obliga- 
 tions arising therefrom differs from that existing in cases where the 
 employer's lack of control over the appliance is usually held to ex- 
 empt him from liability. (") 
 
 In the first place, it may be said that no railway company is 
 obliged to receive and turn over to be handled by its employees any 
 defective or dangerous car. Every company is under a legal duty 
 not to expose its employees to dangers arising from such defects of 
 foreign cars as may be discovered by reasonable inspection before 
 such cars are received into its train. , This inspection is such a one 
 as the company's own cars would receive while in use, and not a shop 
 inspection. The shortness of the time during which the foreign car 
 is in the hands of a company is not an excuse for neglecting the 
 duty.(') 
 
 Where danger from the use of foreign cars arises, not from defec- 
 tive equipments, but from differences of construction, it has been 
 generally held that the servant assumes the obvious risks thus aris- 
 ing, but if ignorance of the risk is predicated on his part his right 
 of action would follow. It m.'Aj be noted, however, that the statu- 
 tory requirement of automatic couplers is not met unless the various 
 
 Baltimore cfe r. IJ. Co. r. Mackey (1895), 157 Y. S. 72, 15 Sup. Ct. 491. 
 'Atchison, T. & S. F. R. Co. v. Penfold (1896), 57 Kans. 148, 45 Pac. 574. 
 
employers' LIABILITY' IN THE UNITED STATES. 9 
 
 kinds brought together will actually couple by impact, the mere fact 
 that they will so couple when lised with others of the same make 
 not being a sufficient compliance with the Federal statute. (") 
 
 A nimals. 
 
 Where animals are used as a part of an employer's industrial ap- 
 pliances, or are kept on his premises, and an employee is injured by 
 reason of their vicious or otherwise dangerous qualities, the em- 
 ployer is liable for the injury if he is or ought to be aware of such 
 dangerous qualities. The same general rules as to the employer's 
 duty to give warning and the employee's assumption of risk in 
 accordance with his own knowledge of conditions are applicable in 
 this connection as in the case of inanimate appliances or adjuncts. 
 
 AVOEKING FORCE. 
 
 Hiring I coservants. 
 
 Besides the duty to use care in regard to inanimate or irresponsi- 
 ble instrumentalities, the employer must also be reasonably and prop- 
 erly careful and diligent to see that each employee hired by him has 
 such qualifications as will enable him to perform his duties without 
 greater risk to himself and his coemployees than the business neces- 
 sarily involves. The same principles apply here as in connection 
 with the duty as to appliances. Where the degree of danger to be 
 guarded against is greater or the skill needed for safety is of a higher 
 order, the degree of care demanded is correspondingly increased. 
 Obviously the question of experience or ability would be of little 
 moment in mere manual labor unrelated or not immediately related 
 to other stages of work, while for certain classes of railroad employ- 
 ment, for instance, definite inquiries as to qualifications are neces- 
 sary to relieve the employer of the charge of negligence. 
 
 The disqualifications of persons of suitable age may be mental, 
 moral, or physical, the most common being those that arise from 
 the intemperate use of intoxicants, though habitual carelessness or 
 recklessness, such as may reasonably come to the knowledge of the 
 employer, likewise charge him with liability. The element of knowl- 
 edge, either actual or constructive, is an essential one. A plaintiff 
 grounding his claim on the negligence of the employer in hiring 
 an incompetent coservant must prove, not only the incompetence, 
 but also that the employer failed of proper care and diligence in the 
 original hiring or in subsequent inquiry as to incompetency of which 
 notice was given during the term of service. (*) It must further 
 
 Jolinsoii V. S. P. R. Co. (1904), 196 U. S. 1, 25 Sup. Ct. 158. 
 'Indiana, B. & W. K. Co. v. Dailey (1887), 110 Ind. 75, 10 N. E. 631. 
 
10 BULLETIN OF THE BUKEAU OF LABOB. 
 
 appear that the injuries complained of were the consequence of the 
 incompetence charged. (") 
 
 Although the employer's duty in I'egard to care is a continuing 
 : one, the presumption of good character and suitable qualifications 
 ' can safely be relied on by an employer who has used due care in the 
 original hiring until notice of a change. A single act of negligence 
 or incompetence is not enough to fix the employer's liability for con- 
 tinuing to employ the servant 'guilty of the same, though notice 
 thereof may be presumed to put him on his guard. It has been held 
 in some cases, however, that the quality of a single act was so notori- 
 ously objectionable that it indicated a degree of incompetence suf- 
 ficient to charge the master with liability for th^ employment of the 
 person committing it. C") Evidence of the commission of several acts 
 of negligence is, in most jurisdictions, held to be competent to prove 
 the unfitness of a servant. In Pennsylvania (") and Massachusetts, (*) 
 however, general reputation is made the test, and the submission of 
 individual acts is objected to as tending to raise collateral inquiries, 
 and thus indefinitely to protract the case ; but the rule that proof of 
 frequent specific acts of actual negligent quality of which the em- 
 ployer had, or by the use of due care could have had, knowledge is 
 the one generally approved; and obviously reputation is the general 
 result of the impressions made by individual occurrences. 
 
 Corollary to the obligation to employ competent coservants is the 
 requirement that a sufficient number shall be provided for the reason- 
 ably safe performance of the employer's work. This duty includes 
 that of seeing, at least in a general way, that the employees engaged 
 are properly distributed to the various parts of the establishment and 
 that due provision for physical fitness is made by allowing oppor- 
 tunity for rest and time for meals. 
 
 Rules. 
 
 Another branch of the employer's duty is that of providing appro- 
 priate rules and securing the carrying out of a suitable system for the 
 conduct of his work. This ajjplies onlj' to businesses sufficienth" com- 
 plex to make such arrangements reasonable, and no such assumption 
 
 "Galveston Rope & Twine Co. v. Burkett (1803), 2 Tex. Civ. App. 308, 21 
 S. W. 958. 
 
 »Baulec v. New York & H. E. Co. (187-1), TM N. X. 3.j(j. IT Am. Rep. 32o. 
 
 cprazler v. Pennsylvania R. Co. (1861), 38 Pa. 101, 80 Am. Dec. 407. Tills 
 case was sharply criticised in Pittsbin-g, Ft. W. & C. R. Co. v. Ruby US71), 38 
 Ind. 294, 10 Am. Rep. Ill, in which it was said that " the case stands alone, un- 
 sustaiued and unsupported, so far :is we have been able to discover, by any 
 elementary work or decision." 
 
 ''Hatt V. Nay (1887), 144 Mass. 18G, 10 N. E. 807. 
 
EMPLOYEES LIABILITY "IKT THE UNITED STATES. 11 
 
 is made as that rules can be so framed as to guard against every con- 
 tingency. The duty is held to extend to the making of reasonable 
 rules and their reasonable and practicable enforcement, ordinary care 
 being used to anticipate and guard against such accidents as can be 
 reasonably foreseen. A defective system and inadequate rules will 
 not satisfy the law, but the presumption is in favor of the sufficiency 
 of those provided, and it has been held that only manifestly un- 
 reasonable ,or clearly insufficient rules would leave the employer open 
 to the charge of negligence. {") In this, as in other cases, common usage 
 is in general accepted as conclusive. The absence of rules may be 
 condoned if it appears that a customary method of carrying on 
 work is actually sanctioned and approved by the employer and is 
 understood by the employees as being binding upon them. A mere 
 custqm of employees, however, apart from the employer's approval 
 or eftforcement will not suffice. C") 
 
 Such rules and practices as are prescribed must be brought to the 
 knowledge of the emj)loyee before he is considered to be bound by 
 them, but it may be inferred from circumstances that this has been 
 done. Express contracts with reference to the conditions of em- 
 ployment as affected by specified rules are conclusive as against an 
 employee professing ignorance of such rules ;('^) but a mere agreement, 
 though in writing, to study the rules and keep posted on them is 
 applicable only to such rules as have been duly promulgated or which 
 the employer has definitely undertaken to bring to the employee's 
 knowledge. (*) Continuance in service for a considerable length of 
 time or the fact that printed copies of rules are furnished with direc- 
 tions that they be read are circumstances that will be construed 
 against the employee in cases of claims based on alleged ignorance 
 of rules. 
 
 Enforcement of rules is no less a duty than the promulgation of 
 rules in so far as a reasonably careful supervision will accomplish it. 
 Eepeated and notorious violations will charge the employer with a 
 knowledge of the insufficiency of the provisions made and the neces- 
 sity of new regulations or of additional superintendence. In the ab- 
 sence of steps to secure the enforcement of rules thus Adolated it has 
 been frequently held that the master has sanctioned their abroga- 
 tion and that they are no longer binding. Their violation would not 
 then be regarded as negligence, nor could the employer offer such 
 rules as a defense. («) 
 
 " Little Rock & M. E. Co. v. Barry (1898), 28 C. C. A. 644, 84 Fed. 944. 
 » Abel V. Delaware & H. Canal Co. (1886), 103 N. Y. 581, 9 X. E. 325. 
 « Sedgwick V. Illinois C. R. Co. (1887), 73 Iowa 158, 34 N. W. 790. 
 « Carroll v. East Tennessee, V. & G. E. Co. (1889), 82 Ga. 452, 10 S. E. 163. 
 «St. Louis, A. & T. E. Co. V. Triplett (1891), 54 Ark. 289, 15 S. W. 831; 16 
 S, W. 266. 
 
1^ BITLLETIN OF THE BtTKEATJ OF LABOB. 
 
 Instructions and n'Cirnings. 
 
 Besides thei general rules by which the conduct of business is de- 
 termined, instructions may be necessary either in case of abnormal 
 conditions or of the employment of inexperienced persons. The prin- 
 ciple lying at the foundation of this duty is the same as in the case 
 of providing appliances, viz, liability does not attach on account of 
 the dangers of the situation, but for placing the employee in a situ- 
 ation of the hazards of v^hich he is excusably ignorant. There is 
 no legal necessity for the giving of instructions or warnings, there- 
 fore, where the employee's knowledge as to conditions and means 
 of safety is equal to that of the employer, nor where, all the circum- 
 stances being considered, adequate knowledge can be attributed to 
 him. On principles already adverted to, repair men, or those whose 
 duty it is to make dangerous places safe, are not entitled to instruc- 
 tion so far as the dangers involved relate only to the appliances or 
 places which engage their attention. A modification of this rule 
 is to be found, however, in the fact that it is not a mere knowledge 
 of conditions, but a comprehension of the dangers attendant thereon 
 that must be shown in order to absolve the' master from responsi- 
 bility. (") Misrepresentations on the part of the employee as to age 
 and experience have been held by some courts to relieve the master 
 of the duty to instruct,^') while others deny such effect. (") Regard- 
 ing the duty as one of " proper care," it would seem that the employer 
 can not be absolved from the duty of disclosing dangers which are 
 not obvious, by any statenients whatever of those whom he may em- 
 ploy, though the circumstance of the employee's representations may 
 be considered. 
 
 Inasmuch as persons of tender years are particularly unlikely to 
 understand the risks attendant upon the use of dangerous machinery, 
 the duty of instruction will be held to apply in cases of their employ- 
 ment when it would not be considered if the conditions related to 
 adult employees. Experience and capacity are to be reckoned with in 
 deciding as to the duty of instructing minors as well as adults, but 
 where a person is too young to realize the dangers or to profit by the 
 instructions given the employer is not freed from liability even by 
 the giving of such instructions as would under ordinary conditions 
 be sufficient. (*) 
 
 Not every contingency is to be anticipated in the giving of instruc- 
 tions, but such only as are probable in the conduct of the; business 
 
 » Coombs v. New Bedford Cordage Co. (1869), 102 Mass. 572, 3 Am. Rep. .506. 
 6 Steen v. St. Paul & D. R. Co. (1887), 37 Minn. 310, 34 N. W. 113. ' - 
 e Louisville & N. R. Co. v. Miller (1900), 43 C. C. A. 436, 104 Fed. 124;" 
 '*Hickey v. Taafe (1887), 105 N. Y. 26, 12 N. E. 286; Pittsburg, C. & St. L. 
 B. Co. V, Adams (1886), 105 lud. 151, 5 X. E. 187. i 
 
EMPLOYEES LIABILITY IN THE UNITED STATES. 13 
 
 and while the servant keeps within the scope of his employment. 
 Increased hazards of which the employer has or should have knowl- 
 edge should be brought to the attention of even experienced workmen 
 who are not in a situation to acquire timely Imowledge for them- 
 selves. The instrvictions must be suiRciently definite and explicit to 
 call attention to the specific dangers, and must be timely and ade- 
 quately imparted to the person for whose benefit they are intended. 
 What will amount to a sufficiency can not be determined by any set 
 rule, but will vary with conditions. It has been held in a number of 
 instances that a mere notice to be on one's guard is not sufficient, but 
 that the particular danger and a probably safe way of avoiding it 
 should be pointed out.('») It is obvious, however, that conditions may 
 make the enforcement of this rule unnecessary or even impracticable, 
 for the danger may be discoverable or avoidable by proper circum- 
 spection, or it may be of such nature that only the persons actually 
 present can determine at the time how it may best be avoided. 
 
 A railroad employee rightfully on the track may expect warning of 
 the approach of a train ; {''>) also the crew of a freight train is entitled 
 to warning if likely to meet unusal obstructions in a yard at night. ('') 
 Under the doctrine of the " last clear chance " this duty to warn is 
 held to be such that, notwithstanding th« previous negligence of the 
 injured person, if, at the time the injury occurred, it might have 
 been avoided by the exercise of reasonable care on the jaart of the 
 defendant, he will be liable for the failure to exercise such care;('*) 
 while in a recent case in Missouri («) it was held that under the theory 
 of the " humanitarian doctrine '' of the employer's liability an em- 
 ployee, even if negligent, can recover where it was practicable for 
 persons in charge of a train to avoid inflicting the injury on account 
 of which the action is brought. 
 
 EESTEICTKJNS OF EMPLOYEES' BIGHT TO RECOVER. 
 
 Efforts on the part of the employer to make his workmen insurers 
 of their own safety by the adoption of rules or the i^equirement of 
 contracts releasing the employer from liability will in general be dis- 
 countenanced by the courts. Thus it has been held that a rule which 
 required an employee not to attempt to use appliances unless he knew 
 that they were in a proper condition imposed upon the servant one of 
 the duties of the master, i. e., that of seeing that the implements fur- 
 nished are in a reasonably safe state of repair, and such rule was de- 
 
 «Fox V. Peninsular White Lead & Color Works (1801), 84 Jlich. 076, 48 
 N. W. 203. 
 
 6 Illinois O. R. Co. c. af^han (1896), 34 S. W. 16. (Ky.) 
 
 "McGraw v. Texas & P. R. Co. (1898), 50 La. Ann. 466, 23 So. 461. 
 
 * Styles V. Receivers of Riclimoncl & Danville R. Co. (1896), 118 X. C. 1084, 
 24 S. E. 740. 
 
 « Jolinson V. St. Josepli Terminal Co. (1907), 101 S. W. 641. 
 anfi^tn — Rnii. 74—08 2 
 
14 BULLETIN OF THE BTJEEATJ OF LABOE. 
 
 clared void.('') A stipulation exempting a railroad company from 
 liability for injuries caused employees by its negligence is void as 
 against public policy. C") A contract executed subsequent to the 
 employee's entrance on service, relieving the employer of liability, is 
 void for want of consideration. (^) In another case a lower court of 
 the same State held a contract of like effect, though based on sufficient 
 consideration, to be void as against public policy. (*) 
 
 It has been held that an employer could not relieve himself by con- 
 tract of a liability imposed by statute, although the statute itself 
 made no reference to such contracts. {^) An implied waiver of the 
 benefits of a statute which requires frogs, etc., on railroads to be 
 blocked or machinery to be guarded by continuance in service with 
 Ifnowledge that the law Avas not complied with, has been held not 
 to be valid as a defense in an action for injuries resulting from the 
 company's failure to so comply. (0 There is, however, a strong list 
 of cases on the other side. («') In Georgia (*) and Pennsylvania (*) 
 express contracts limiting or denying the employee's right of action 
 have been upheld. In the former State, a later statute declares such 
 contracts void so far as they affect any liability fixed by law. Similar 
 or more general statutes exist in a number of States. 
 
 Where the feature of relief benefits exists a new factor is intro- 
 duced, and the rulings are quite uniform in favor of the contract. 
 The terms of the contract are, in general, that the acceptance of bene- 
 fits by the injured employee shall operate as a waiver of liis right of 
 action at law against the employer, and that if action is brought and 
 is compromised or carried to judgment no claim shall lie against 
 the fund. Such funds are usually maintained jointly by employers 
 and employees, though the expense is not necessarily equally shared. 
 
 "Missouri, K. & T. R. Co. v. Wood (1890), 35 S. W. STO. (Tex.) 
 
 ^Lalve Sliore & M. 8. Ry. Co. r. Spauglei- (18SC), 4-1 Ohio St. 471, 8 X. E. 
 4G7; Little Rock & Ft. S. Ry. Co. r. EnbanlvS (1887), 48 Ark. 460, 3 S. W. SOS; 
 Riclmiond & D. Ry. Co. v. Jones (1891), n-2 Ala. 218, 9 So. 276; Stone's Admr. v. 
 I'nion P. R. Co. (1907), 89 Pac. 715 (Utah) ; Johnson v. Charleston & S. R. Co. 
 (1809), 55 S. C. 152, 32 S. E. 2 ; Roesner r. Hermann (1881), 8 Fed. 782. 
 
 Turdy v. Rome, etc., Ry. Co. (1891), 125 X. Y. 2119. 20 X. E. 255. 
 
 «Runt V. Herring (1892), 49 X. Y. St. 120, 21 X. Y. Supp. 244. 
 
 f Kansas P. R. Co. v. Peavey (18S:?), 29 Kans. 109. 44 Am. Rep. 030; Tar- 
 bell r. Rutland R. Co. (1901). 73 Vt. 347. 51 Atl. 0. 
 
 ^ Xarramore r. Cleveland, C. C. & St. L. Ry. Co. (1.899), 90 Fed. 298; Davis 
 Coal Co. r. Pollaud (19((2), 158 lud. 007, 02 X. E. 492: Western Fura. & Mfg. 
 Co. r. Bloom (1907), 90 Pac. 821. (Kans.) 
 
 ff Denver & R. G. R. Co. i: Gannon (1907), 90 Pac. 853 (Colo.) ; St. Louis 
 Cordage Co. r. Miller (19(13). 120 Fed. 495; O'Maley v. South Boston Gas Light 
 Co. (1893), 158 JIass. 135, 32 X. E. 1119. 
 
 "Western & A. K. Co. r. Bishop (1873), 50 Ga. 40,5. 
 
 * Mitchell r. Pa. R. (18.53), 1. Am. Law Reg. 717. 
 
employers' liability IK THE tJNITBD STATES. 15 
 
 The Pennsylvania supreme court (") Jbeld that an agreement to accept 
 benefits, the acceptance to operate as a waiver of the right of action, 
 was not contrary to public .policy, inasmuch as it was not the signing 
 of the contract prior to the injury (which would not in itself be eifec- 
 tive) but the acceptance of benefits subsequent thereto that barred the 
 action. Such a contract merely requires the employee to make his 
 election whether to apply to the relief department or to sucC*) But 
 if there is lack of mutuality, or the defendant company fails to show 
 that it assumes a fair portion of the burden of paying the benefits, 
 even the acceptance of such benefits will not bar a suit for damages. (") 
 2for will a partial payment of the agreed benefits avail as a bar to the 
 action, though a full compliance with the terms of the contract would 
 so operate. ('') 
 
 A contract that purports to bind the members of the relief depart- 
 ment by the decision of an " advisory committee," making such de- 
 cision iinal and conclusive, is void, as it undertakes to defeat the con- 
 stitutional right of appeal to the courts for the redress of wrong, (^) 
 
 The agreement that claims on the benefit fund are forfeited by suit 
 in which judgment is procured or a compromise is made was held 
 valid in an Iowa case. (^) But the sujjreme court of New Jersey ruled 
 that " the judgment intended is one by which the claimant recovers 
 some compensation for the loss alleged," and granted a new trial in 
 a suit for the benefit where damages at law had not been secured. (") 
 
 A further variation in conditions is found in the case of persons 
 not employees of the company causing the injury by its negligence 
 or that of its employees, but who are being carried as a part of the 
 contract of iheir employment. Such cases arise in the employment 
 of express messengers, who, while not employees of the railroad com- 
 pany, are also not in the status of passeiogers. A contract between 
 the express company and the railroad company over whose lines the 
 former wishes to do business may contain a clause by which the ex- 
 press company agrees to hold the railroad company harmless from all 
 liability for injuries to the employees of the former company while 
 being transported, whether such injuries are caused hy the negligence 
 of the employees of the railroad company or not. Then by contract 
 with its employees the express company may procure an agreement, 
 as a condition of employment, that the apjDlicant will assume all 
 risks and make no claims for injuries however occasioned. A case 
 involving such conditions was before the Supreme Court of the 
 
 "Johnson v. Philadelphia R. Oo. (1894), 163 Pa. St. 134, 29 Atl. 854. 
 * Owens r. BaMmore & O. K. Co. (1888), 35 Fed. 715; Leas r. Pennsylvania 
 Co. (1894), 10 Ind. App. 47, 37 N. E. 423. 
 
 " Chicago, B. & Q. R. Co. r. Miller (1896), 76 Fed. 439 (C. C. A.). 
 
 <^ Pennsylvania Co. v. Chapman (1905), 220 111. 428, 77 N. E. 248. 
 
 « Baltimore, etc., R. Co. v. Stankard (1897), 56 Ohio St. 224, 46 N. E. 577. 
 
 f Donald v. Chicago, B. & Q. R. Co. (1895), 93 Iowa 284, 61 N. W. 971. 
 
 ff O'Reilly v, Pennsylvania R. Co, (1903), 69 K. J. L. 119, 54 Atl. 233. 
 
16 BULLETIN OF THE BIJEEATJ OF LABOR. 
 
 United States, («) where it was held that the position of an express 
 messenger more nearly resembles that of an employee of the trans- 
 porting railroad company than that of a passenger, and that his con- 
 tract was a valid release of his employer and the railroad company 
 from liability for injuries. Where the messenger is not aware of the 
 contract between the companies he is not a party thereto and is not 
 bound by its terms. C") 
 
 DUTIES NONDELEGABLE. , 
 
 Considering the employer's duties as matter of personal obligation, 
 it Avould be apparent that directions to a servant, or the employment 
 of persons to perform these functions in the employer's stead, will 
 not in itself relieve him of the responsibility ; but if there be a defect- 
 ive discharge of such duty by the person employed for its perform- 
 ance, the employer is still liable and will not be allowed to screen 
 himself behind his agent. In determining the question of the em- 
 ployer's liability, the relations of fellow-servants are involved, or 
 rather the doctrine of vice-principals, and the decision will be found 
 to turn largely on the point of whether the negligent employee was, 
 with reference to the act occasioning the injury, a coemployee or 
 whether he was the representative of the employer in that particular 
 act. 
 
 The courts have, in general, held quite consistently to the view of 
 the nondelegable quality of the duties enumerated above, their ruling 
 being that as to them the employer can relieve himself only by per- 
 formance. In some cases, however, it has been held that the appoint- 
 ment of an employee to the duty was a sufficient discharge of the 
 obligation. Thus in a number of Massachusetts cases the rule seemed 
 to be that the master is liable only in case of failure to supervise such 
 servants as he has appointed to discharge A^hat are in other jurisdic- 
 tions classed as nondelegable duties. ('') In a Pennsylvania case, 
 also,('*) it was held that the employment of competent inspectors and 
 affording them reasonable opportunities for work was a sufficient dis- 
 charge of the duty to inspect, unless reasonable diligence would have 
 disclosed the defective manner in which the work was being done. In 
 a recent case, however, it was held by the supreme court of ilassachu- 
 setts(^) that a showing that an employer had engaged competent engi- 
 
 Baltimore & O. S. W. B. Co. v. Voigt (1900), 17G V. H. 49S, 20 Sup. Ct. 38. 
 
 ''Brewer v. New York, etc., R. Co. (1891), 124 N. Y. 59, 26 N. e. 324; Cham- 
 berlain V. Pierson (1S9S), 87 Fed. 420, 31 C. C. A. 157. 
 
 « Rogers v. Ludlow Mfg. Co. (1SS7), 144 Mass. 108, 11 X. E. 77; Lawless v. 
 Comiecticut River R. Co. (1883), 136 Mass. 1. 
 
 ^Railroad v. Hughes (1888), 119 Pa. 301, 1?, Atl. 286. 
 
 "'Ericksou V. American Steel and Wire Co. (1906), 193 Mass. 110, 78 N. B. 
 761, citing Moynihan c. Hills Co. (1S8S), 140 Mass. 586, 16 N. E. 574; Hooe v. 
 Boston and Northern St. Ry. Co. (1904), 187 Mass. 67, 72 N. E. 341. 
 
employers' liability in the united states. 17 
 
 neers to design, install, and inspect appliances did not relieve him 
 from his original responsibility of using due care to provide safe 
 appliances. 
 
 From the first and more generally accepted principle it follows that 
 the employer's ignorance of the incompetency of his vice-principal is 
 not a defense; nor is it suiRcient that a competent superintendent 
 actually gave the proper orders. Reasonable care must also be 
 exercised to follow up the orders and enforce conformity thereto. It 
 is hardly necessary to add that the failure to appoint any superin- 
 tendent is no less negligence than the appointment of one who is 
 incompetent. 
 
 Supplies. 
 
 An exception to the rule that the master is liable for injuries arising 
 from furnishing unsafe appliances was noted above (p. 6), the ex- 
 ception being in the case of purchases obtained from reputable dealers 
 or manufacturers. (") It would be carrying this principle of pur- 
 chase but a step further for the employer to make provision for the 
 supply of all instrumentalities by procuring them from independent 
 contractors, and so evading responsibility for their imperfections; 
 but only a few courts have sanctioned the doctrine of the nonliability 
 of the employer to this extent. 
 
 In a Federal circuit court of appeals (*) and in California, (") 
 Georgia,('*) Illinois,(«) Missouri, C) New Hampshire, (") Rhode Is- 
 land, ('') and Texas, (*) the employer's liability has been maintained 
 in cases of injury arising from the neglect of independent contractors 
 in the furnishing of appliances or the maintenance of a safe place, 
 while in New York, (^■) Virginia, (*) and New Jersey (') the opposite 
 position has been taken. In Pennsylvania, in a somewhat recent 
 case,(™) the employer was held liable for the contractor's negligence, 
 .Avhile an earlier decision (") released an employer who had contracted 
 for appliances which proved inadequate. 
 
 "Fuller r. New York, etc., R. Co. (1900), 175 Mass. 424, 56 N. E. 574. 
 ''Toledo Brewing and Malting Co. v. Bosch (1900), 41 C. C. A. 482, 101 Fed. 
 530. 
 
 " Sbea V. Pacific Power Co. (1805), 145 Cal. 680, 70 Pac. 373. 
 
 <2 Central R. & Bkg. Co. v. Passmore (1892), 90 Ga. 203, 15 S. E. 760. 
 
 -■ Pullman Palace Car Co. v. Laack (1892), 143 111. 242, 32 X. E. 285. 
 
 /■Herdler v. Buck Stove & Range Co. (1896), 130 Mo. 3, 37 S. W. 115. 
 
 9 Story V. Concord & M. R. Co. (1900), 70 X. H. 364, 48 Atl. 2SS. 
 
 ''Mqran v. Corliss Steam Engine Co. (1899), 21 R. I. 386, 43 Atl. 874. 
 
 * Gulf, C. & S. F. R. Co. V. Delaney (1900), 22 Tex. Civ. App. 427, 55 S. W. 
 
 538. 
 
 i Devlin r. Smith (1881), 25 Hun. 206, affirmed (1882), SO X. X. 470. 
 
 ft Norfolk & W. R. Co. v. Stevens (1899), 97 Va. 631, 34 S. E. 525. 
 
 « Conway r. Furst (1895), 57 X. J. L. 645, 32 Atl. 380. 
 
 «» Philadelphia & R. R. Co. v. Trainor (1890), 137 Pa. 148, 20 Atl. 632. 
 
 '"Ardesco Oil Co. v. Gilson (1870), 63 Pa. 146. Xote also the attitude of 
 the Massachusetts courts indicated by the eases cited in notes c and e on the 
 preceding page. 
 
18 BTJJILETIN OF THE BUEEAIT OF LABOK. 
 
 Inspert'ion and maintenance. 
 
 The duty of the maintenance of appliances and of inspecting their 
 condition has been mentioned, an exception being made in the case of 
 simple tools and appliances the condition of which was easily ap- 
 parent to the user. In general the duty of inspection and mainte- 
 nance is held to be nondelegable. (") The States in which the con- 
 trary view has been held are AlabaaTia,(*) Louisiana, (O Marylaiad,:('*) 
 Massachiis6tts,('') Mississippi, (0 New Jersey, (") Ohio,('') and Penn- 
 &ylvania.{*) In New York the position of the higher courts has not 
 been altogether consistent, (^■) but seems generally to charge the em- 
 ployer with these duties. 
 
 A distinction that is sometimes made charges the esiployer with 
 liability if the work of repair is done by a person specially delegated 
 therefor and not engaged in using the apparatus. (See p. 50 below.) 
 Another test that is sometimes used is found in the nature of the re- 
 pairs themselves. If the repairs are to be of a permanent character, 
 the duty of making them may be regarded as nondelegable ; but if they 
 are to be of a temporary character they may be intrusted to coem- 
 ploj^ees. The application of this rule depends on the facts and cir- 
 cumstances of each case, and can not here be gone into in detail. 
 
 Rules. 
 
 The duty to frame and promulgate rules and regulations is absolute, 
 according to the courts of this country^, the only exception noted being 
 in the State of West Virginia, C') where it was held that the choice of 
 competent servants to receive and transmit necessary orders relieved 
 the master, and that it was not required of him personally to see that 
 notice actually came to the knowledge of all affected thereby. In 
 
 "Hougli V. Texas & P. R. Co. (1879), 100 XJ. S. 213, 25 L. Ed. 612, qaoting 
 Ford v. Fitchburg E. Co. (1872), 110 Mass. 240, 14 Am. Rep. 598. 
 
 6 Woodward Iron Co. v. Cook (1900), 124 Ala. 349, 27 So. 455. 
 
 '•Hubgli V. New Orleans & C. R. Co. (1851), 6 La. Ann. 40."., 54 Am. Dec. 565. 
 
 -^Sliauck V. Northern C. R. Co. (1SC6), 25 Md. 462. 
 
 f King r. Boston & W. R. Corp. (1S51), Cnsli. 112 ; but see Jloynlhan v. Hills 
 Co. (1888), 140 Mass. 586, 16 N. E. 574, and Ford r. Fitchburg B. Co., note a. 
 
 t Nfw Orleans, J. & G. N. R. Co. r. Hughes (1873), 49 Miss. 258. 
 
 » Harrison r. Central R. Co. (1S05), 31 N. J. L'. 293; modified in Nord 
 Deutscher Lloyd S. S. Co. v. Ingebregsteu (1895), 57 N. J. L. 402, 31 Atl. 619. 
 
 ''Little Miami R. Co. ■!'. Fitzpatrick (1884), 42 Ohio St. 318. 
 
 ' Bemisch v. Roburts (1891), 143 Ru. 1, 21 Atl. 998. 
 
 i Cf. Malouc r. Hathaway (1870), 04 N. Y. 5, 21 Am. Rep. 573, and Laniug v. 
 New York C. I!. Co. (1872), 40 N. Y. 521, 10 Am. Rep. 417. 
 
 '■^Oliver v. Ohio River R. Co. (1896), 42 AY. Ya. 703, 20 S. E. 444. 
 
EMPLOYEBS LIABILITY IN THE UNITED STATES. 19 
 
 Maryland (*') and Mississippi (^) it has been held that train dis- 
 patchers in giving orders were but fellow-servants with the train 
 men, for whose negligence the employer was n'ot responsible; but 
 the general view corresponds with the rule given above. 
 
 Statutory dut/'es. 
 
 As to duties prescrihed by statute, it appears to be the rule that, 
 apart from an express legislative declaration, they will be classed as 
 delegable or nondelegable according to the common-law classification 
 of such duties. 
 
 THE DEPEHSES 01" EMPLOYERS. 
 
 For a brea;cli of duty to an employee resulting in injury an action 
 will lie for the recovery of damages. Employers are not insurers, 
 however, and are liable for the consequences, not of danger, but of 
 negligence. Some duties are by statute made obligatory upon the em- 
 ployer to such an extent as practically to fix his liability in case of in- 
 juries entailed by their omission. Apart from such enactments, how- 
 ever, the employer may, in case of an action for damages, offer a de- 
 fense based on the principle expressed in the maxim, '" Volenti -non 
 fit injuria;" or he maj' undertake to prove the plaintiff's assumption 
 of the risk, or his contributory negligence ; or he may rely on the doc- 
 trine of common employment to relieve him from liability. 
 
 The principle of the maxim, " Volenti non fit injuria,'' is of gei^ieral 
 application, the meaning of the phrase as freely rendered being " That 
 to which a person assents is not esteemed in law an injury." A clearer 
 statement is that by an English judge, '" One who has invited or as- 
 sented to an act being done toward him can not, when he suffers from 
 it, complain of it as a wrong" In a Massachusetts case the doc- 
 trine was thus expressed : " One who knows of a danger from the neg- 
 ligence of another, and understands and appreciates the risk there- 
 from and voluntarily exposes himself to it, is precluded from recover- 
 ing for an injury wliich results from the exposure." In brief, the 
 injured person has assumed the risk ; and, apart from the contractual 
 relation of employer and employee, there is a considerable class of 
 cases in which this defense to an action for damages may be 
 interposed. The invitation or assent is not necessarily or even com- 
 monly formal, but is inferable from conduct and conditions, often 
 subsequent to. the entrance upon the situation that gives rise to the 
 circumstances to which the doctrine is applied. 
 
 " Wonder r. Baltimore & O. R. Co. (ISTO), 32 ild. 411, 3 Am. Rep. 143. 
 i'Millsaps V. Louisville, K. O. & T. R. Co. (1891), C'J Miss. 423, 13 So. 696. 
 
20 BXTLLETIN OF THE BUREAU OF LABOB. 
 
 English courts have more definitely fixed the application of the 
 principle than is the case in this country, where it has been tuHy 
 discussed in comparatively few jurisdictions, but neither in liiUg- 
 land nor in America are the authorities agreed on its application to 
 concrete cases nor on its relation to the doctrines of contractual as- 
 sumption of risk and of contributory negligence. Many authorities 
 hold that the rule of the maxim covers the ground of the usual defense 
 of assumed risks under the employee's contract, besides its own field of 
 noncontractual relations, while others regard the two defenses as dis- 
 tinct. The question of its relations to the doctrine of contributory 
 negligence is briefly discussed below. It may be said here, however, 
 that the distinction is not always maintained, and it is held by some 
 courts that the person described as volens may be better described as 
 negligent, or, rather, that the person making the voluntary choice 
 may be none the less guilty of contributory negligence. In so far 
 as the liability of employers is concerned it appears that the more 
 general application of the rule in this country follows the same lines 
 as are observed in connection with the doctrines of assumed risks 
 under the contract of employment, and until the subject is more defi- 
 nitely adjudicated its separate consideration in an undertaking of 
 this scope does not seem advisable. 
 
 ASSUMPTION OF RISKS. 
 
 ^Vhen a contract of employment is entered upon, the law imports 
 into the agreement an assumption by the employee of the ordinary 
 risks incident to the employment, and of such other risks as may be 
 known to and appreciated by him. This is said to be a term of the 
 contract, express or implied from the circumstances of the employ- 
 ment. (") One seeking employment impliedly represents that he is 
 capable therefor, and that he comprehends the ordinary risks. (") 
 Another view of the defense is that it does not arise from the con- 
 tract of employment, but from the status of the employer and em- 
 ployee as fixed by common law, and is over and above the contract, 
 being imposed by law upon the parties thereto, regardless of their 
 
 desires. («) 
 
 Knowledge. 
 
 The question of the employee's knowledge is in general controlling, 
 but the knowledge may be either actual or imputed. A workman of 
 mature years and ordinary intelligence, offering himself for employ- 
 iiieiit, is ])rcsumed to know and appreciate the conditions a'nd to 
 
 <» Nai-rnmore v. Cleveland, C, C. & St. L. E. Co. (1S99), 96 Fed. 298, 37 C. C. 
 A. 409. 
 
 MVaKucr i'. Chemical Co. (1892), 147 Pa. 475, 23 Atl. 772. 
 
 '•Denver & ir. G. R. Co. r. Norgate (1005), 141 Fed. 247; Martin r. Chicago, 
 E. I. & P. R. Co. (1002), 118 Iowa 148, 91 N. W. 1034. 
 
employees' liability in the united states. 21 
 
 assume the risks ordinarily incident to the service and to have notice 
 of all risks which, to one of his experience ajid capacity, are, or ought 
 to be, open and obvious. He does not assume risks arising from 
 conditions of which he was actually and excusably ignorant; nor is 
 he required to use more than ordinary care to discover existing con- 
 ditions. ('') 
 
 There is, hojvever, one class of cases in which the question of knowl- 
 edge is not raised, and that is Avhere the conditions complained of are 
 the result of the employee's own choice or selection of a course of 
 action. In such cases the risk is assumed irrespective of any implied 
 term in his contract of service, the employee being held to be respon- 
 sible for the proximate results of his own conduct. (^) 
 
 Ordinary risks. 
 
 The determination of what are ordinary risks evidently becomes 
 important in view of the fact that with regard to them the employer 
 is relieved of all responsibility, even if the employee did use ordinary 
 care, unless by reason of inexperience or minority he was not charge- 
 able with having assumed such risks. ('') ' 
 
 The courts have sometimes defined ordinary risks as those that 
 pertain to the employment after the employer has discharged his 
 duty as to safe place, appliances, etc., and Avhich ordinary care on his 
 part can not guard against. Under another conception the word 
 " ordinary " is held to be construed in its usual sense. This may be 
 taken to mean either that the risk is so obviously a normal incident 
 of the employment that an intelligent observer would recognize it 
 as such, and the dangers arising therefrom as constantly possible ; or 
 it may imply that the employment unavoidably and of necessity 
 involves the risks, Avhich is much the same as holding that the mas- 
 ter's care can not obviate them. 
 
 These risks are such as arise from the negligence of fellow-servants, 
 unless the employer was negligent in employing incompetent work- 
 men; or from the nature of the instrumentalities used; or from the 
 conditions, whether permaaient or temporary, of the conduct and 
 nature of the business. The master can not undertake, for instance, 
 to make railroad labor or the manufacture of explosives as safe as 
 many other employments, and the hazards of such industries are held 
 to be assumed according to the standard for the industries themselves. 
 In like manner works of construction and repair, in regard to which 
 the master's liability Avas found to be modified, cast upon the em- 
 
 " Allen V. Boston & M. R. Co. (1898), 69 N. H. 271, 39 Atl. 978; Comben v. 
 Belleville Stone Co. (1897), 59 X. J. L. 226. 36 Atl. 473. 
 
 i'Mellor V. Merchants' Mfg. Co. (1890), 1.50 Mass. 362, 23 N. E. 100. 
 
 « Jones V. Mfg. & Invest. Co. (1899), 92 Me. .565, 43 Atl. 512; Goodes v. Bos- 
 ton & A. K. Co. (1894), 162 Mass. 288, 38 N. E. 500. 
 
22 BXTLILETMSr OF THE BUREATJ OF IjABOB. 
 
 ployee a eorr«BipoTidingly larger degree of risk, which, by this 
 principle, he is held to assume. This rule applies only to employees 
 actually engaged upon the work, and the risks assumed are those 
 that arise only from the work in hand and not from defects m por- 
 tions of the work already completed.('') 
 
 Ewfraordinary risks. 
 
 Risks which may be obviated by the exercise of reasonable"care on 
 the part, of the employer are classed as extraordinary, and these the 
 employee is held not to have assumed without acknowledge and com- 
 jorehension of the dangers arising from the employer's negligence. 
 If the dangers are patent or are brought to the knowledge of an em- 
 ployee, his entering upon or remaining in service is presumed to have 
 waived his claim against the employer for resulting damages. (') 
 In the first case he will be held to have made his contract in the light 
 of existing conditions ; and as to risks arising during employment it 
 has been said that if a servant continues to use an appliance which 
 he knows to be dangerous he does so at his own risk and not at that 
 of his employer. ('') It mmst appear, however, tliat the risk was 
 actually appreciated. While a failure to notifv the employer of dis- 
 covered or known risks is construed as indicating the employee's 
 willingness to continue to work while they exist, the risk is not thixswii 
 upon the employer by a mere notification not replied to by his promise 
 to repair. (*) If the alternative of continuing to work with the de- 
 fective appliance or of leaving the employment is offered, and the 
 employee continues to work, he will be held to have assumed the 
 risk.!") A j^romise to repair can be relied upon only for a reasonable 
 time, after which the risk will be upon the employee. 
 
 Forgetf 'illness caused hy pressure of duties. 
 
 Temporary inadvertence or forgetfulness of dangerous conditions, 
 even if occasioned by the urgency of the situation, is generally held 
 not to relieve the employee from the burden of the assumed risk, 
 though as to this element the courts are not agreed. In a number of 
 New York cases allowance has been made for the forgetfulness of an 
 employee whose attention was di'sei'ted from imminent danger by the 
 prcsKiiro of his duties, (^) while the United States circuit court of 
 
 "Evansvillo & U. R. Co. t: Maddux (1803). 134 Ind. 571. 33 N. E. 345. 
 
 STutllc r. Dolidil, G. 11. & M. Ity. (1SS7), 122 IT. S. 189, 7 Sup. Ct. 1166. 
 
 <■ Wasliiiislim & G. K. Co r. j\Icl>ade (1890), 135 U. Si 554, 10 Sup. Ct. 1044. 
 
 " East Teniicssop, Y. & G. K. Co. r. Puffield (]SS;^). 12 Lea 63, 47 Am. Eep. 319. 
 
 "Lcaiy r. I'.oslon & A. R. Co. (ISS,-,), l.'iO Mass. 580, 2 K. E. 115. 
 
 /Wallafc V. Central A'eriiiont 1!. Co. (1893). 138 N, Y. 302, 33 N. E. 1069; 
 Fitzgerald r. New York C. & H. It. K. Co. (ISISO), 37 App. Div. 127, 55 X. Y. 
 Supp. lliil, etc. 
 
employees' liability in the united states. 23 
 
 a,pp6als('') and the supreme courts of Iowa('') and Rhode Islan<i('') 
 iiave given the idea recognition, though in no jurisdiction can the 
 practice be said to be uniform. The prevalent rule seems to be that . 
 the employee is not iallowed to deny his assumption of the risk on 
 account of the rapidity of thought or action necessary to meet the 
 exigencies of any occasion, if it is established that he had acquired 
 before the accident a full comprehension of existing risks. 
 
 CONTEIBUTOIIY NEGLIGENCE. 
 
 When a risk involves such a degree of danger that a prudent man 
 would not assume it, the defense to an action by an injured employee 
 is not that the plaintiff by his contract assiimed the risk, but that 
 he was, by bis conduct, guilty of contributory negligence. The 
 line is not clearly drawn between the two defenses, nor is it always 
 easy to do so, inasmuch as the facts in a given case ma,y support 
 eithei' defense. The principles are distinct, however, as assumption 
 of risk is an implied or actual agreement, entered into before tlie 
 happening of the accident, to waive compensation from the employer 
 for injuries resulting therefrom,; or, it is an incident of the contract, 
 read into it by the fixed rules of laAv. If, however, there has been con- 
 tributox'v negligence, there is no reference to either contract or status 
 to determine rights, but only to the conduct of the employee. If un- 
 der all the attendant circumstances he fell short of reasonable and 
 ordinary care, the defense of contributory negligence will lie against 
 him. 
 
 The rule is announced by Cooley as follows: '" If the plaintiff or 
 party injured, by the exercise of ordinary care under the circum- 
 stances, might have avoided the consequences of the defendant's 
 negligence, but did not, the case is one of mutual fault, and the law 
 will neither cast all the consequences upon the defendant, nor will 
 it attempt any apportionment thereof." ('') The contributing negli- 
 gence must be that of the party injured, that of a fellow-servant 
 cooperating with the negligence of the master being no defense to 
 the latter for injuries residting from the combined negligence. 
 
 Compaj'ut'ire nefjJigence. 
 
 In Illinois for a number of years a doctrine of comparative negli- 
 gence prevailed, according to which the courts attempted to appor- 
 tion the fault, and, if the preponderance of negligence seemed to be 
 chargeable to the employer, to award damages in a corresponding 
 
 " West V. Smitliem P. Co. <1898), 20 C. C. A. 210. 85 Fed. 392. 
 
 6 Strong r. Iowa C. E Co. 1895), 04 Iowa 380, 62 N. W. 799. 
 
 ''Disano v. New England «team Brick Co.' (1898), 20 E. I. 452, 40 Atl. 7. 
 
 * Torts, p. 674. 
 
24 BULLETIN OF THE BUBEAXJ OF LABOB, 
 
 amount. The rule seems to have been first applied in an employer's 
 liability case in Chicago and Northwestern Railway Company -y 
 Sweeney (1869) (52 111. 325). This rule was continuously followed 
 at least until 1886, (<«) but is at present denied in that State, (") and a 
 negligent employee is now barred from recovery unless it appears 
 that his employer was guilty of willful negligence in connection 
 with the occasion of the injury. (") 
 
 Kansas has been classed by some writers as one of the jurisdic- 
 tions in which this doctrine is favored, the supreme court of that 
 State having held that where the negligence of the defendant is great 
 and that of the plaintiff' but slight, the latter may recover. (*) This 
 court has, however, repeatedly denied that it countenances the doc- 
 trine of comparative negligence, and it may be fairly doubted if more 
 could be said than that the rule there followed is simply the common- 
 law doctrine of contributory negligence somewhat peculiarly stated. 
 The same may be said of Tennessee, where, if the negligence of the de- 
 fendant was the efficient cause of the injury, the fact that the in- 
 jured party was somewhat in default will not bar his recovery if it 
 does not amount to a lack of ordinary care, even though he might 
 ha,ve escaped by the use of extraordinary care.(^) The negligence of 
 the plaintiff will be taken into consideration, however, in mitigation 
 of the damages to be awarded, and where the fault is equal, no dam- 
 ages will be allowed. The defendant, to be clear «f negligence, must 
 show compliance with all requirements of the law. (f) 
 
 It may here be noted that the doctrine of comparative negligence 
 was incorporated into the Federal employers' liability law of 1906, 
 recently declared unconstitutional, though not on this ground, and 
 is found in a number of other recent statutes ; but in general the rule 
 is as stated in the quotation from Cooley above. 
 
 Cause of injury. 
 
 The negligence of an employee will not be a bar to his action unless 
 it is the 'actual and proximate cause of his injury. Conduct merely 
 furnishing the occasion or condition of the injury does not amount 
 to negligence. (") Even if the employee was guilty of negligence 
 which may have contributed to the accident, yet if the employer by the 
 exercise of ordinary care and diligence could have avoided its occur- 
 rence, the antecedent negligence of the employee has been held not to 
 destroy his right of action. Still less will the negligence of the 
 
 « ( 'hifiiKo & A. E. Co. i\ Johnson, 116 111. 206, 4 N. E. 381. 
 
 ''City of Macon r. Holconib (190.S), 205 III. 643, 69 N. E. 79. 
 
 " Chicago & A. It. Co. v. Myers (1901), 95 111. App. 578. 
 
 <* Wichita & W. R. Co. v. Davis (1887), 37 Kans. 743, 16 Pac. 78. 
 
 « Nashville & C. K. Co. v. Carroll (1873), 6 Heisk. 347. 
 
 'Louisville & N. R. Co. c. Burke (1868), 6 Coldw. 45. 
 
 Smithwick v. Hall & U. Co. (1890), 59 Conn. 261, 21 Atl. 924. 
 
employees' liabilixy in the united states. 25 
 
 servant operate as a defense where it is followed by willful or wanton 
 negligence on the part of the master. Where injuries result in death, 
 the right of the personal representative to sue, which does not exist 
 under the common law, but is now given by statute in most States, 
 is subject to the same limitations as would have been the Mght of 
 the injured person if he had survived. 
 
 What negligence bars recovery. 
 
 "What does and what does not constitute such negligence as to be 
 a bar to an employee's claim for damages have not been consistently 
 ruled upon by the courts. The test varies according to circum- 
 stances, the rule being that the servant must conduct himself as a 
 prudent person would in a like position. 
 
 A servant engaging in work for which he is not qualified by pre- 
 vious experience, and incurring injury, is held to have been negligent. 
 In some jurisdictions the master has not been made responsible even 
 though he knew when he hired the employee that liis inexperience 
 made the labor abnormally hazardous, but such views are not gen- 
 erally accepted. 
 
 So also if the precautions appropriate to dangerous situations are 
 omitted, or if an unnecessarily dangerous niethod of doing work is 
 chosen where the employee has the power of choice, or if he assumes 
 or remains in a position of unnecessary danger, he will be held to 
 be guilty of contributing to his own injury. Inattention to sur- 
 roundings, and going in the line of duty into a place of unusual 
 danger without notifying those from whose reasonably anticipated 
 acts harm might befall him, have the same effect. The fact that the 
 presence of an employee in the place where the injury was received 
 was not requixed for the performance of his duties will prevent 
 recovery. Using an appliance for a purpose other than that for 
 which it was intended, if suggestive of danger to a person of reason- 
 able intelligence in the situation of the workman, will usually be a 
 bar to successful action. The use of defective or otherwise unsuit- 
 able instrumentalities may be negligent, though if a showing of due 
 care in the circumstances is made, and the danger was not great and 
 obvious, an action for damages may be maintained. 
 
 Violation of orders or of specific valid rules of which the employee 
 has notice, and the neglect of warnings with reference to any of the 
 acts named above will usually be held to imply negligence as a mat- 
 ter of law. (") In Texas (*) and New York,('') however, the violation 
 
 "Coops V. Lake Shore & M. S. R. Co. (1887), 66 Mich. 488, 33 N. W. 541; 
 Louisville & N. R. Co. v. Woods (1895), 105 Ala. 561, 17 So. 41. 
 
 i-Ft. Worth & D. 0. R. Co. v. Thompson (1893), 2 Tex. Civ. App. 170, 21 
 S. W. 137. 
 
 " Gross V Pennsylvania, P. & B. R. Cc. (1891), 42 N. Y. S. R. 808, 16 N. Y. 
 Supp. 616. 
 
26 
 
 BUIiLETIH OF XHE BTJEEATJ OF LABOE, 
 
 o± a rule does not of itself furnish grounds for imputing negligence. 
 Violation of municipal or statutory regulations, though it be sanc- 
 tioned by the employer or even if it be done by his direction, will 
 -disqualify the employee for maintaining an action. If, however, the 
 order was not known by the employee to contravene a statute, his 
 obedience has been held not to biir recovery. Departure from the 
 customary method of doing work has been held to indicate negligence, 
 though not conclusively. 
 
 Remaining in place of danger. 
 
 The general rule that the employee loses his right to a recovery 
 by remaining at work after the discovery of unsafe conditions predi- 
 cates a duty to leave the service in due time to escape the threatened 
 dangers. How far he may omit this duty and still have recourse 
 to his employer for compensation for injuries can not be absolutely 
 determined in any general sense, but it is allowable for the employee 
 to remain a reasonable time, and especially if his immediate depar- 
 ture would jeopardize the safety of the public or the interests of his 
 employers-^as in train service on railways. (") 
 
 It is not a justification for the employee that he is restrained by a 
 fear of \osmg his position. The negligence of the employer has the 
 effect of releasing the employee from Ms contract, if any, and the 
 continuance at work under the new conditions is not obligatory. 
 Some courts have taken a more lenient view, however, and if the 
 fear of discharge is well grounded and the employee's conduct falls 
 short of recklessness, these courts do not incline to strictly enforce 
 the doctrine of negligence where service is continued mider the con- 
 ditionfe indicated. (*) 
 
 Knowledge of danger. 
 
 It is not negligence for one to expose himself to dangers of which 
 he is excusably ignorant; so that even if defects are known to exist 
 the employee may still recover if it appears that the dangers involved 
 were not appreciated. They must be so obvious that a reasonably 
 prudent man would know and avoid them. A knowledge of the 
 defects, however, may be of such a kind, whether actual or inferred 
 from their duration or from attendant circumstances, that an appre- 
 ciation of the consequent dangers will be presumed. If the abnor- 
 mally dangerous conditions were so suddenly and unexpectedly pro- 
 duced or developed as to make it unreasonable to hold the employee 
 to an anticipation of them, his failure to avoid their results will not 
 be considered negligence as matter of law. If, however, the prior 
 
 <» Irvine i\ Flint & P. M. K. Co. (1891), 89 Micli. 416, 50 N. W. 1008. 
 6 Mason v. Richmond D. K. Co. (1892), 111 N. C. 482, 16 S. E. 698. 
 
employees'- LIABILITY IK XHE UNITED STATES. 27 
 
 negligence of the employee produced the dangerous conditions, no 
 recovery can be had. 
 
 The doctrine that knowledge furnishes a basis for imputing negli- 
 gence is modified by the employer's promise to guard against dan- 
 gers or to repair, by his assurance of safety, and by proof that the 
 injury was incurred while the employee was obeying direct orders, 
 whicli points will be further referred to below. 
 
 Negligence not imputahle, when. 
 
 The acts and omissions indicated above as furnishing the condi- 
 tions from which negligence will be inferred may have been com- 
 mitted by such persons or under such circumstances that the inference 
 of culpability will be destroyed. 
 
 Some of the chief defenses of the employee against the charge of 
 contributdty negligence are mentioned below. 
 
 Attempts to Save Life, etc. — Exposing one's self to danger in the 
 attempt to save life, unless so hopeless that the act would amount to 
 rashness, is not negligence as a matter of law ; (") though the courts 
 will not sanction a reckless or excessive risk. (") The general rule 
 seems to be that the courts will not examine too critically the grounds 
 of the plaintiff's reasons for expecting success, nor will he be charged 
 with fault if the actual danger was greater than he anticipated. The 
 same principle controls, though not extending so far, in cases where 
 the peril is encountered in the effort to preserve the property of the 
 employer. 
 
 EiHEEGENCiES. — In general the fact of an emergency will be held to 
 have a qualifying effect, both because of the unusual promptitude of 
 action required, and because the mind is likely to become more or 
 less confused under such circumstances. So if a workman is so en- 
 grossed with the performance of dutj^ that existing dangers are 
 momentarily forgotten, the necessity for attention to the duty may 
 relieve the forgetful employee of the charge of contributory negli- 
 gence. (") If the alarm for one's own safety was unnecessary or haste 
 was made under conditions not warranting it, there Avill be no al- 
 lowance. An act performed involuntarily, under the influence of 
 bodily pain, is not as a matter of law, negligent, even if the act under 
 other circumstances would have precluded recovery on the ground 
 of negligence. 
 
 "Central R. Co. v. Crosby (1885), 74 Ga. 737, 58 Am. Rep. 463; Penusylvania 
 Co. V. Koney (1883), 89 Ind. 453, 46 Am. Rep. 173; Maryland Steel Co. v. 
 Mamey (1898), 88 Md. 482, 42 Atl. 60. 
 
 ''Kawlston v. East Tennessee, V. & G. R. Co. (1894), 94 Ga. 536, 20 S. E. 123; 
 Writt V. Girard Lumber Co. (1895), 91 Wis. 496, 65 N. W. 173. 
 
 "Kane v. Northern C. R. Co. (1888),. 128 U, S. 91, v9 Sup. Ct. 16. 
 
■"° ■ BULLETIN OP THE BXJEEAU OP LABOR. 
 
 Necessity, etc.— Apparent necessity may justify an otherwise 
 negligent action, unless obviously rash. (") A master whose rules or 
 customary practice prescribe a certain mode of performing work is 
 in some degree estopped from bringing in the defense of contributory 
 negligence where an employee has been injured while conforming to 
 such rule or custom, though to what extent has not been accurately 
 determined. If the injured employee incurred his injury on account 
 of conditions leading thereto which were outside of his power to con- 
 trol, this fact will tend to negative the charge of negligence ; so also 
 of his reliance on the presumption that tools and appliances are in 
 good condition and that the work in each department' will be pru- 
 dently done. Minority is also frequently a defense to the charge of 
 negligence, either absolute or partial, varying with the age and the 
 mental and physical capacity of the individual. In connection with 
 each of the above qualifications the remark made in a previous state- 
 ment should be kept in mind, that where the emergency or other 
 dangerous condition is the result of prior negligence of the injured 
 employee, these mitigating or rebutting elements are of no avail 
 against a charge of contributory negligence. 
 
 Local rules. 
 
 In a few States local doctrines have modified to a greater or less 
 degree the customary rule as to contributory negligence and assump- 
 tion of risks. Thus in Alabama, (*) the fact of an employee's con- 
 tributory negligence has been held not to be a bar to recovery where 
 the injury was caused by the wanton or reckless conduct of a fellow- 
 servant or other employee for whose conduct the employer was re- 
 sponsible. Georgia {") makes contributory negligence a ground for 
 a reduction of the amount of damages to which the plaintiff would 
 be otherwise entitled rather than a bar to complete recovery. To what 
 extent this is the result of legislation will receive consideration be- 
 low. The rule followed in Illinois has alresfdy been mentioned 
 (pp. 23, 24). The language of the courts of this State in a number of 
 cases is such that it can not be determined to what extent the doctrine 
 of the assumjjtion of risks is recognized, or rather, perhaps, what 
 distinction is made between assumption of risks and contributory 
 negligence. In Missouri the defense of assumption of risks has been 
 in large measure disallowed. In a very recent case (*) the State doc- 
 trine on this subject was designated by a court of that State as unique, 
 in that " the servant assumes only such risks as are ordinarily inci- 
 
 <» Missouri Furnace Co. v. Abend (1883), 107 111. 44, 47 Am. Rep. 425. 
 » Louisville & N. R. Co. v. York (1901), 128 Ala. 305, 30 So. 676. 
 <■ Pierce i\ Atlanta Cotton Mills (1887), 79 Ga. 782, 4 S. E. 381. 
 <*Obermeyer v. Chair Co. (1906), 120 Mo. App. 59, 96 S. W. 673. 
 
employees' liability in the united states. 29 
 
 dent to his employment, after the master has performed his whole 
 duty to provide him a reasonably safe place to work and reasonably 
 safe appliances with which to do this work ; " while if the master is 
 negligent in these respects and the servant knows, or by the exercise 
 of ordinary care could have knoAvn, of the unsafe place or appliances, 
 and yet continues in the service, he does not thereby assume the risk 
 occasioned by the negligence of the master. Contributory negligence 
 can be charged, however, if the danger was so great and obvious 
 that a prudent man would not work under the circumstances, or 
 if the work could not be done with reasonable safety by the use of 
 caution. (") 
 
 The rule in Tennessee appears to be similar to that followed in 
 Georgia, that if the .employer's negligence occasioned injury to an 
 employee who was himself negligent in the premises, the employee's 
 negligence goes in mitigation of the damages, but does not excuse 
 the employer. (') The wording and interpretation of statutes give 
 rise to other differences, which will be considered under the head of 
 statutory liability. 
 
 THE " FELLOW-SEKVANT " EtJLE. 
 
 The remaining defense to an employee's action for damages is what 
 is known as the " fellow-servant " rule, or the doctrine of common 
 employment. According to this, where the employer has discharged 
 his duties as to a safe place, safe and suitable appliances, competent 
 fellow-servants, etc., he is not liable to an employee for the acts or 
 negligence of any mere fellow-servant or coemployee, provided such 
 coemployee does not represent the employer. Or, as it has been oth- 
 erwise stated, "A master is not bound to indemnify one servant for 
 injuries caused by the negligence of another servant in the same 
 common employment as himself, unless the negligent servant was 
 the master's representative." If, however, the negligence of a co- 
 servant concurs with the negligence of an employer in causing the 
 injury, the injured employee not contributing thereto, the employer 
 will be liable in damages. 
 
 The well-known diversity, not to say confusion and contradictori- 
 ness of the rulings of the courts as to the application of this rule 
 arises from the lack of precise and generally accepted definitions 
 of the idea of common employment and of representation of the mas- 
 ter. The 'relations of this doctrine to the other elements which de- 
 termine employer's liability are such that practically all that has been 
 
 « See also Hamilton r. Rich Hill Coal Miu. Co. (1892), 108 Mo. 364, 18 S. W. 
 977. 
 
 6 Nashville & C. R. Co. v. CaiToll (1871), 6 Heisk. 347. 
 
 30649— Bull. 74—08 3 
 
30 BULLETIN OF THE BUREAU OF LABOE. 
 
 said with reference to the duties of the employer and the assumption 
 of risks by the employee must be read in the light of the ralings of 
 the jurisdictional courts on the subject, although the principles in- 
 volved are held to be those of general law. In an opinion on a fel- 
 low-servant case which was before the Supreme Court of the United 
 States a few years ago it was said that "there is perhaps no one 
 matter upon which there are more conflicting and irreconcilable de- 
 cisions in the variovis courts of the land than the one as to what is 
 the test of common sei'vice, such as to relieve the master from 
 liability for the injury of one servant through the negligence of 
 another." (") Not only do the courts of the various States differ, but 
 in the individual States are found fluctuations of opinion from time 
 to time, and the acceptance of neAV standards, with departures from 
 former positions, so that it is important to loiow the date of an ad- 
 judication in order to determine the present construction in the State. 
 In the Supreme Court itself we find a decision of ISSi strongly modi- 
 fied in 1893 and practically reversed in 1899. (See pp. 38, 39, below.) 
 
 The attempt has been made in a number of States to fix by statute 
 the relations of employees to one another, and to determine the lia- 
 bility of the employer for their acts or negligence ; and this would 
 appear to be the only practical method of attempting a solution of 
 the problem as it exists to-day. It must be confessed, however, that 
 even where statutes of different States are closely similar if not iden- 
 tical in phraseology, the effect of local interpretations is apparent in 
 the varying constructions adopted. 
 
 The common-law rule was enounced in England and America at 
 about the same time, apparently independently, and to practicaEy the 
 same effect. Subsequent developments have been more favorable to 
 the employee in this country than in England, however, some States 
 having apparently lost sight of the foundations of the rule. 
 
 The reasons offered by the courts for the rule have been various, 
 one being found in the view that the master's responsibility is at an 
 end when he has used ordinary care to employ competent servants. 
 It is held that the employee assumes the risk of the possible negli- 
 gence of a coemployee as one of the incidents of the employment. C') 
 In another opinion of our Supreme Court it was said that the obvious 
 reason for exempting tlie employer from liability is that the employee 
 has or is supposed to have such risks in contemplation when he 
 engages in the service, and his compensation is arranged accord- 
 ingly, so that he can not in reason complain if he suffers from a risk 
 which he has voluntarily assmned, and for the assumption of which 
 he is paid.('') Another reason is found in alleged grounds of piiblic 
 
 n Baltimore & O. R. v. Baugll (1803), 14'.> U. S. 368, 13 Sup. Ct. 914. 
 !- Hough r. Texas & P. K. Co. (1879), 100 V. S. 213, 25 L. Ed. 612. 
 (■Chicago, M. & St. P. R. Co. v. Ross (1884), 112 V. S. 377, 5 Sup. Ct. 184. 
 
EMPLOYEES-' LIABILITY IN THE UKITED STATES, 31 
 
 policy, as tending- to malte the employees more watchful over their 
 own conduct and that of their fellows, thus benefiting- em.pl&yers, 
 employees, and the public alike by the greater care with which they 
 perform their duties..(") In close connection herewith is the claim 
 that ainy marked enlargement of liability to capital would lead to the 
 withdrawal of capital from industrial enterprise, thus reducing the 
 opportunities of employment and inflicting damage upon the whole 
 coinmunity. C*) 
 
 Each of these jeasons has been the subject of adverse criticism, and 
 no one of them seems to give a satisfactory ground for excepting 
 employees from the benefits of the doctrine of respondeat superior, 
 or fo.r compelling th« employee to bear the burden of *' pure acci- 
 dents " which occn:r in the prosecution of undertakings the advan- 
 tages of wliich are to be reaped by the employer. The last two rea- 
 sons mentioned above have perhaps been most frequently relied on 
 as supporting the customary rule, though no such results as are 
 therein indicated have followed the adoption of statutes greatly 
 enlarging the rights of employees to recover for injuries following 
 upon industrial accidents. 
 
 The chief points requiring determination in any action involving 
 the principles under consideration are those of common employment 
 and of representative capacity. If it appears that the injuries com- 
 plaiiaed of are tlie result of the negligence of a coemployee, the only 
 hope oi the j)laintiff lies in showing that the negligent person was 
 a vice-principal, representing the master at the time, and so devolving 
 upon him a liability for the acts or omissions charged. 
 
 Com^non emiyloyraent. 
 
 The first question, then, to be considered is what constitutes common 
 employment. It was said in a leading ease that, " prima facie, all 
 who emter into the employ of a single master are engaged in a com- 
 mon service, and are fellow-servants," (") but this broad statement 
 will not answer as a conclusive test. Not only employment by a com- 
 mon master^ but also- engagement in the performance of duties that 
 may reasonably be said to- tend to- tlie accomplishment of the same end 
 is necessary to- meet general acceptansee by the courts ; nor is it a suffi- 
 cient answer to say that all serve the profit or convenience of a com- 
 mon employer. Wllere another servant than the plaintiff, employed 
 for a purpose entirely different from his duties, has negligently caused 
 the injury complained of, it may well be said that they are not fellow- 
 servants. But even with this q^ualification the statement is not def- 
 
 " Chicago, M. & St. F. R. Co-, v. Koas, supra. 
 
 ''.New Pittsburg Goal & C. Co. v. Peterson (1893), 136 Ind. 398, 35 N. B. 7. 
 
 " Baltimore & O. R. v. Baugh, supra. 
 
'32 BULLETIN OF THE BUEEATT OE LABOK. 
 
 inite enough to be of much use in determining particular cases, and 
 the expressions used by judges in passing on the question of common 
 employment throw little light on the subject. " Engaged in the 
 same general business," " the same general undertaking," or " in pro- 
 moting one common object " are frequent modes of expression, though 
 in other cases the somewhat more restricted phrases, " services hav- 
 ing an immediate common object," or " working in the same place to 
 subserve the same interests," are used. The question involves both 
 law and facts, but Avhere the latter are undisputed^ the decision be- 
 comes simply a matter of law, and the trial jury will not pass upon it. 
 CoNTEJiPLATED RiSKS. — A theory that has been adopted in many 
 cases is that the service is common if the negligence of the delinquent 
 servant was, in a fair and reasonable sense, one of the risks contem- 
 plated by the injured employee in undertaking or continuing in his 
 employment. (») This is a reference of the case to the doctrine of as- 
 sumed risks previously discussed, and involves the principles of 
 knowledge, actual or presumptive. By this theory the relation of the 
 duties of the injured and the negligent employees becomes the crite- 
 rion, together with the question of the probability of the negligence 
 of the one affecting the safety of the other. An injured employee's 
 action will not be barred as matter of law by the single fact of serv- 
 ice of a common master where the probabilities of injurious conse- 
 quences from the delinquent servant's negligence were too remote to 
 be reasonably foreseen jC') but mere accidental occurrences which no 
 one could reasonably anticipate or provide against are outside the 
 rule of liability on general grounds. That a knowledge of the condi- 
 tions under which coemployees are mutually employed is influential 
 here further appears from the frequent emphasis placed on the fact 
 of proximity one to another in the places of their employment. In 
 fact it was said in a Texas case('') that "the rule should be confined 
 to those servants whose duties bring them into such juxtaposition 
 that one would be enabled to observe the negligence of his fellows." 
 But this was only as proposing a reasonable limitation on the fellow- 
 servant doctrine, which, however, the court did not feel able to adopt 
 in view of the great weight of authority to the contrary, declaring 
 that the remedy lay alone with the legislature. Yet inasmuch as the 
 question is not one of locality, but of likelihood of connected conse- 
 quences, mere remoteness is not sufficient to negative the idea of co- 
 service where the other elements are present. So also the fact that 
 duties are diverse, or are performed in different departments, or under 
 
 " Chicago, JI. & St. P. R. Co. c. Ross, supra. 
 
 sxortheni P. R. Co. v. Hambly (1894), 154 U. S. 349, 14 Sup. Ct. 983. 
 
 " St. Louis, A, & X. R. Co. v. Welcli (1888), 72 Tex. 298, 10 S. W. 529. 
 
employers' liability in the united states. 33 
 
 the direction of different foremen is not conclusive. Probability of 
 contact or of resultant danger from the negligence of an employee 
 is a necessary element in the application of this theory, though 
 at what point the line shall be drawn is often difficult to determine. 
 A manufacturer's domestic servant is not in fellow-service with an 
 employee in his factory, nor is the driver of a butcher's wagon a 
 coemployee with workmen engaged in building an addition to the 
 employer's premises. The distinction is not so easy, however, where 
 the nature of the employments is not so diverse, and the fluctuations 
 in the position of the courts above referred to are apparent in cases 
 where this principle is involved. Thus in Indiana ('') a bridge car- 
 penter being conveyed to his place of Avork was held not to be a 
 coservant with the engineer of the train on which he was riding, a 
 decision Avhich was followed by the Iowa courts in 1866;('') though 
 apparently the rule had already been abrogated in Indiana, (") and 
 subsequent rulings indicate that the plaintiff could not now recover 
 in the latter State under the circumstances above set forth. 
 
 Depaet3iental Doctrine. — A second theory, based on a different 
 test from that of contemplated risk, is naturally suggested by the 
 considerations indicated above. In the application of this theory 
 the classification turns on the relation of employees in different de- 
 partments of the employer's establishment or business, more or less 
 segregated. In the courts in which it is adopted the general test is 
 one of the identity or diversity of the departments in which the 
 plaintiff and the delinquent employee were at work. Since, how- 
 ever, no satisfactory definition of the term " department " has yet 
 been furnished, the test may be more accurately said to be one of 
 consociation of duties, i. e., such a relation of the duties of the in- 
 jured employee and those of the delinquent coemployee as that 
 the former had a reasonable opportunity for protecting himself from 
 injury by his own efforts. All courts would unite in ruling out the 
 defense of coemployment in certain classes of cases, and there is 
 a hopeless contrariety of views as to where this defense shall be 
 allowed and where denied. Even in those States where the defense 
 is most frequently based on what has been called the departmental 
 doctrine, this test is not the only and final one, as it is found that 
 Avhile departments may be distinct, those employed therein may be 
 thrown into such contact that fellow-service can not be denied, and 
 vice versa. While, therefore, the two theories presented lead to real 
 and wide differences of view, there is a class of cases where they ap- 
 proach, and the conclusions reached therein may be referred indiffer- 
 ently to the one reason or the other. 
 
 Gillen water v. Madison & I. R. Co. (1854), 5 Ind. 3.39, Gl Am. Dec. 101. 
 * Donaldson v. Jliss. & M. R. Co., 18 Iowa 280, 87 Am. Dec. 301. 
 eglattery v. Toledo & W. R. Co. (1864), 23 Ind. 81. 
 
34 BXTLLETIK OF THE BXTKEATJ OF LABOB. 
 
 The jurisdictions in which consociation of duties has been more or 
 lesrs uniformly made the test of coservice are Georgia, (") Illinois, (^i) 
 Kentucky,(<') Louisiana, ('^) Missouri,!'') Kebraska,(0 Utah,!?) 
 Virginia,!") Washington,!*) West A"irginia,(0 the Territory of 
 Arizona,!') and such Federal Courts as have adopted the rule to 
 conform to local practice. It is also followed in Tennessee,!') but 
 is applied to railway service only. It will appear, however, from a 
 rcN'iew of the cases that, in some of the States named, the courts have 
 at times manifested a preference for the theory of contemplated 
 risks, which, as already seen, shows slight regard for dejjartmental 
 boundaries. 
 
 Elements of Test. — As stated above, the mere fact of difference 
 of departments is not conclusive, though according to the theory 
 under consideration it is matter of evidence. As the result of an 
 analysis of a large number of cases in which this doc-trine controls, 
 the following elements are presented by a leading text Avriter!™) as 
 determinative of the rights of the injured employee: 
 
 a. Whether or not he had an opportunity of observing the extent 
 to which the negligent servant was competent for the performance 
 of his duties and the manner in which he habitually conducted him- 
 self. 
 
 h. Whether or not he was able to take appropriate measures to 
 ward off a danger occasioned by an act already committed or about 
 to be committed while the work was actually in progress. 
 
 c. Whether he could or could not lessen the risk of injury by exer- 
 cising upon the negligent servant an influence calculated to promote 
 caution and diligence on the jjart of the latter. 
 
 d. "^^Tiether or not he was able to protect himself by reporting de- 
 linquencies, thus securing the more careful supervision, or, if need- 
 ful, the discharge of negKgent employees. 
 
 "Cooiier v. Jlullins (1S60), 30 Ga. 14G. 70 Am. Dec. 638; though the doctrine 
 soems to be repudiated lu this State (see Brush E. L. & P. Co. r. Wells (1900), 
 110 Oa. I!i2, 35 S. K 365). 
 
 ^Vhwngo & N. \\. R. Co. v. Moranda (1S79), 93 111. 302, 34 Am. Rep. 16S. 
 
 '•Kentucky C. R. Co. v. Ackley (18SS), 87 Ky. 2TS, 8 S. W. 691. 
 
 (i Dobson v. Nmv Orleans & W. R. Co. (1900), 52 La. Au. 1127, 27 So. 670. 
 
 f SuUlvau 1-. .Aiissouri P. R. Co. (1889), 97 Mo. 113, 10 S. W. 852. 
 
 M)malia & li. y. R. Co. r. Ki-ayenbuhl (1896), 48 Nebr. 553, 67 N. W. 447. 
 
 (7ArmsfroiiK v. (.Mviron Short Llue & f. N. R. Co. (1893), 8 Utah 420. 32 
 
 V:\r. C!!.'!. 
 
 "Toi-tans r. Itichmond & A. R. Co. (1887), 84 Ta. 192, 4 S. E. 339. 
 
 '■ n-rii r. (ioldeu TuiTiiel .Miu. Co. (1901), 24 Wash. 261, 64 Pae. 174. 
 
 ^Maddeu r. Cliesainake & O. It. Co. (1886), 2S W. Va. 610, 57 Am. Rep. 695. 
 
 '. llobsou V. N. Mex. & A. R. Co. (1886), 11 Pac. 545. 
 
 'Nashville & C. R. Co. v. Carroll (1871), 6 Heisk. 347; Coal Creek Miu. 
 Co. r. Davis (1801), 90 Tenu. 711, 18 S. ^\. :!87. 
 
 <» Labatt, " Master and servant," p. 139a 
 
EMPLOYEBS LIABILITY IN THE UNITED STATES. 35 
 
 Not all these questions are likely to be raised in any single case, 
 but the answer to the one or more present in a given instance may 
 be found to be decisive of the rights of an injured servant, even to 
 the extent of entirely ignoring so-called departmental classifications. 
 
 ~ Representation of the employer. 
 
 No court goes so far as to assert without qualification that all 
 employees of a common master, or even in the same department, 
 are coemployees in such sense as to relieve the master of responsibil- 
 ity for the negligent acts of those who are the master's representa- 
 tives, either permanently, or as to the matter in hand. But here 
 again there are as irreconcilable differences as any that have been 
 noted, and it will be possible only to present the different views taken 
 by the various courts without attempting to summarize them or to 
 bring them into harmony. 
 
 There are in general two grounds on which adjudications are based : 
 One, the mere su^Deriority in rank of the negligent employee, and 
 the other, the nature of the injurious act, i. e., whether or not it was 
 one which was connected with the discharge of the so-called non- 
 delegable duties of the employer. Like other distinctions made in 
 the applications of the fellow-servant rule, there are cases in which 
 the decision might be reached by the use of either test, but in other 
 cases the adoption of the one rule will be found to be decisive along 
 lines not capable of being reached by the other unless by giving a 
 special meaning thereto. 
 
 Test of Eank. — The representative of the employer is most fre- 
 quently termed by the courts a vice-principal, though the actual 
 functions of his employment and not the designation by which he is 
 known while at work will be determinative in any case. This rule 
 has been made to extend so far as to relieve the employer even when 
 the injured employee in good faith regarded the negligent employee 
 as his superior, not knowing of the latter's discharge from that posi- 
 tion. (") On the other hand, a coservant intrusted temporarily with 
 the duties of a vice-principal must be answered for by the employer 
 no less than if he were permanently holding the position. Repre- 
 sentation, however, must be actual. In a" majority of the jurisdic- 
 tions of the Union the mere fact of superiority of rank is not suffiicient 
 to charge the employer with liability for the negligence of the su- 
 perior servant, though the negligence complained of may have been 
 connected with the gi^'ing of orders. (*) Nor do these courts consider 
 that the adding on of the power to hire and discharge is sufficient 
 
 "Allen r. Goodwin (1893), 02 Tenn. 385, 21 S. W. 760. 
 
 ^ Kinimer v. Weber (1897), 151 N. T. 417, 45 N. E. 860; McLean v. Blue Point 
 G. M. Co. (1876), 51 Cal. 255. 
 
36 BULLETIN or THE BXJEEATJ OE LABOE. 
 
 to convert a foreman of subordinate grade to the rank o .■ l 
 cipal, as mere fear of discharge will not justify the assumption ot 
 undue risks. («) And this is true even when there is power ot con- 
 trol. (") Thus it was said in a recent case that " a servant who sus- 
 tains an injury from the negligence of a superior agent, engaged in 
 the same general business, can not maintain an action against their 
 common employer, although he was subject to the control of such su- 
 perior agent, and could not guard against his negligence or its conse- 
 quences." (") This rule is based on the theory that the contracting 
 employee assumes the risk of his suj)erior's negligence as one of the 
 ordinary risks of his employment. This does not cover cases where 
 the order directs a departure from the original scope of the servant's 
 employment, such order being attributed, by an apparent suspension 
 of the rule, to the master himself, so that he is held liable for any 
 negligence connected therewith. (") The rule is also subject to re- 
 strictions resulting from the application of the doctrine of nonassign- 
 able duties, the duty of giving directions as to details of the conduct 
 of Avork not being one for which the employer is regarded as person- 
 ally responsible. This principle does not, except in a few States, ex- 
 tend to actual superintendents or managers of an employer's busi- 
 ness ; nor is it A-ital that such representative shall not be employed in 
 part at actual labor, or that he shall receive a higher salary than his 
 subordinates. No fixed rule is discoverable, but to render the master 
 liable the employee '" must be more than a mere foreman to oversee a 
 batch of hands and direct their work under the supervision of the 
 master." («) Or, as stated in another case, "he must have general 
 power and control over the business, and not mere authority over a 
 certain class of work or a certain gang oi men."(f) 
 
 Superior Servant Doctrine. — "While such is the rule in the greater 
 number of American jurisdictions, what is known as the •' superior 
 servant doctrine " has been adopted in a number of States. The form 
 of this rule varies in diiferent States, or even in the same court; and 
 thei'e is inconsistency in its application to different cases, resulting 
 from an unwillingness on the part of some courts to carry it out to 
 its logical conclusions, and from an indefiniteness as to the point 
 where it shall cease to control. In the supreme court of Illinois {") it 
 
 "'^^m't^^^^^^^^^'^ Min. Co. v. WUelau (1897), 16S XJ. S. 86, 18 Sup. 
 
 *'*ivmo V Ko(.f,'Mn (]WI7), K> App. Div. 321), 44 X. Y. Supp. 1; Lehigh Valley 
 ,-o„l (^o. iJ Jones (1878), .SO I'a. 4;5- Vilter Mfg. Co. r. Otte (1907), 157 Fed. 
 
 '^°Kle.mn'^'?Now York, L. K- & W. E. Co. (1895), 145 X. Y. 190, 39, N. E. 711. 
 aciZ'-o & X. W. R. CO. r. Bayfield (1S77), 37 Mich. 205. 
 . nobbin r Kichmond & D. K. Co. (1870), 81 X. C. 446, 31 Am. Rep. 512. 
 / New York L. E. & W. E. Co. r. Bell (1886), 112 Pa. 400, 4 Atl. 50. 
 IcoTsol. coal 00, .. WoiBbacher (1890), 134 111. 57, 24 X. E. 627. 
 
employees' liability in the united states. 37 
 
 was said, " "Where the negligent act of one servant causes injury to 
 another as the result of the exercise of the authority conferred upon 
 him by the master over the servant injured, the master is liable." In 
 a Missouri case(«) the following language was used: "Where the 
 master appoints an agent with a superintending control over the 
 work, and with power to employ and discharge hands and direct and 
 control their movements in and about the work, the agent * * * 
 stands in the place of the master." Various grounds are offered for 
 this view, the most satisfactory one being that advanced in an early 
 Ohio casejC") in which the duty of supervision and control was treated 
 as nondelegable; or, as stated in a Missouri case,('') "the master, by 
 appointing a foreman or other person to superintend the work, Avith 
 power to direct the men rmder him how to do it, thereby devolves 
 upon such person the performance of those duties personal to the 
 master." The power to hire and discharge, while of evidential value, 
 is not, vinder this doctrine, conclusive either for or against the injured 
 employee, except, perhaps, in the States of North Carolina ('^) and 
 Texas, («) where this test seems to be one of decisive importance. In 
 addition to the States already named, the courts of Kansas, (^) Ken- 
 tucky,(») Louisiana, (") Missouri,(') Nebraska,(^') Tennessee, (*=) and 
 Utah ( ' ) seem to be committed to this doctrine, either formally or in 
 effect. 
 
 Status of Manager. — It has already been indicated that there are 
 some States in which what may be called the " extreme view " of 
 fellow-service is held, i. e., that even a general manager is a fellow- 
 servant. This may be called the English as opposed to the American 
 view, as it prevails where the rulings of the House of Lords are the 
 precedent; while in by far the greater number of the States of this 
 country there is a recognition of an actual superintendent or general 
 manager as the master's representative, for whose acts the master is 
 accountable. Wliile the cases involving the question of vice-principal- 
 ship in this form naturally disclose for the most part conditions of 
 
 " Stephens r. Hannibal & St. J. R. Co. (1885), 86 Mo. 223. 
 
 6 Cleveland, C. & C. R. Co. v. Keary (1854), 3 OMo St. 203. (See also Little 
 Miami R. Co. v. Stevens (1851), 20 Ohio 415.) 
 
 cMUlei- V. Missouri P. R. Co. (1892), 109 Mo. 350, 19 S. W. 58. 
 
 a Bryan v. Southern R. Co. (1901), 128 N. C.-3S7, 38 S. E. 914. 
 
 e Bering Mfg. Co. v. Femelat (1904), 79 S. W. 869. 
 
 ^Walker v. Gillett (1808), 59 Kans. 214, 52 Pac. 442. 
 
 s Southern R. Co. r. Barr (1900), 21 Ky. L. Rep. 1615, 55 S. W. 900; but see 
 Cincinnati, N. O. & T. P. R. Co. v. Hill's Admr. (1905), 89 S. W. 523. 
 
 '•Faren v. Sellers (1887), 39 La. Ann. 1011, 3 So. 363. 
 
 i Hunt V. Desloge Consol. Lead Co. (1004), 79 S. W. 710. 
 
 i Union P. R. Co. r. Doyle (1897), 50 Nebr. 555, 70 X. AV. 43. 
 
 * Louisville & X. R. Co. i'. Lahr (1888), 86 Tenn. .335, 6 S. AA^ 603. 
 
 ' Trihay v. Brooklyn Lead Min. Co. (1886), 4 Utah 468, 11 Pae. 612. 
 
38 BULLETIN OF THE BTJEEATJ OF LABOE. 
 
 what may be considered permanent relationship, the same rule has 
 been held to apply to persons occupying the position only temporarily; 
 as, for instance, in the performance of specific undertakings, after 
 the completion of which the representative would assume his cus- 
 tomary rank as coemployee with his temporary subordinates. Both 
 the scope and the reason of the rule are in part indicated in the opin- 
 ion given in a New York case,('^) in which it Avas held that where the 
 " master withdraws from the management of the business, or the 
 business is of such a nature that it is necessarily committed to agents, 
 as in the case of corporations^ the master is liable for the neglects and 
 omissions of duty of the one charged with the selection of the other 
 servants, in employing and selecting such servants, and in the general 
 conduct of the business committed to his care." The States in which 
 a superintendent seems to be considered as a coservant with other 
 employees are Alabama, C*) Massachusetts, (") Mississippi, (*) and 
 New Jersey, (^) while in California, Indiana, Maine, Maryland, Mis- 
 souri, New York, and Vermont are to be found cases indicative of a 
 similar view ; but from a general view of the decisions in these States 
 it appears that this ruling can not be considered law. In Alabama, 
 Massachusetts, and Mississippi the common-law rule has been modi- 
 fie^d by legislative enactment. 
 
 Heads of Depaetments. — On principle, a court that recognizes the 
 manager of an entire business as the master's representative can not 
 well refuse similar recognition to persons in charge of single branches 
 of an undertaking, as in large industrial undertakings the head of 
 such a branch is completely in control of the men under him, and the 
 management of its affairs is as fully in his hands as if it were an in- 
 dependent business. Thus it has been held by the United States 
 Supreme Court C) that there is a " clear distinction to be made in their 
 relation to their common principal, between servants of a corporation 
 exercising no supervision over others engaged with them in the same 
 employment, and agents of the corporation clothed with the control 
 and management of a distinct department in which their duty is en- 
 tirely that of direction and superintendence." The limits of the 
 application of this principle are not clearly marked. The courts 
 making most frequent use of it are the Federal courts, and their posi- 
 tion may be considered as fairly presented in the statement that it is 
 only individuals who are in charge of separate branches and depart- 
 
 ojlalone v. Hathaway (1876), 64 X. Y. 5, 21 Am. Rep. 573. 
 
 6 Mobile & M. R. Co. v. Smith (1877), 59 Ala. 2-15. 
 
 "Meehan v. SpiefS Mfg. Co. (1809), 17l.> Mas.s. 375, 52 N. B. 518. 
 
 <!lIowcl V. Mississippi C. R. Co. (1874), 50 Miss. 178. 
 
 <■ Curley r. Hoff (1899), 62 N. J. L. 758, 42 Atl. 731. 
 
 f Chicago, M. & St. P. E. Co. v. Eoss (1884), 112 U. S. 377, 5 Sup. Ct. 184. 
 
employees' liability in the united states. 39 
 
 merits of service, and have entire and absolute control therein that 
 are properly to be considered, with respect to employees under them, 
 as vice-principals. In the Siapreme Court case just quoted from it 
 was held that the conductor of a freight train was such a vice-princi- 
 pal, while in 1893 the same court ruled that the engineer of an engine 
 running alone was not, although by the rules of the company he was 
 in charge with the same authority as a conductor of a train. (") Later 
 still this court excluded the conductor of a freight train from the 
 operation of this principle, C") thus reversing the position taken 
 fifteen years before on the facts involved, though not abrogating the 
 rule as to vice-principalship. Such variations of position have added 
 to the perplexities of the situation, not only as to the Federal courts, 
 but as to State courts as well, and to attempt to determine or illustrate 
 the present extent of the application of the doctrine of vice-principal- 
 ship as tested by rank would be out of place in an undertaking of the 
 present scope. 
 
 Character or Act as Test, — In cases in which vice-principalship 
 is conceded there is yet a possible distinction as to the kind of acts for 
 which the employer will be held responsible. In the first place it 
 must obviously be a negligent act; and, secondly, it must be within 
 the scope of the agent's authority and be" connected with the proper 
 business of his employment. Besides these points, as to which it is 
 only necessary to establish the facts in order to- determine their status, 
 the question of the official or nonofficial quality of the acts considered 
 may be raised. 
 
 In accordance with this view, a doctrine of dual capacity has been 
 developed, according to which some acts of the employer's represen- 
 tative may be taken as those of a mere servant and not of such a na- 
 ture as to make the employer responsible for negligence therein. In 
 the courts adopting this doctrine, the negligent performance of the 
 so-called " nondelegable " duties by one who is, by virtue of his rank, 
 conceded to be a vice-principal casts a burden on the employer, 
 while the same person may, as a coservant, perfoi-m an act of 
 manual labor negligently,, and to the injury of a fellow-workman, 
 without devolving- any liability therefor upon the employer. This 
 doctrine of dual capacity seems to have been first applied in 
 Rhode Island, (") though the leading case is one that was decided 
 in New York in 1880. (*) Other States adopting this theory 
 (though not always without qualification) are Arkansas,(^) Col- 
 
 <» Baltimore & O. R. Co. v. BaugB, 149 U. S. 368, 13 Sup. Ct. 914. 
 
 ''New England R. Co. v. Conroy (ISltO). ITfi U. S. 323. 20 Sup. Ct. 85. 
 
 "Mann v. Oriental Frtat -Vrorks (1875), 11 R'. I. 152. 
 
 ^ Crispin v. Babbitt, 81 N. Y. 51G, 3T Am. Rep. 521. 
 
 « St. Louis, A. & T. E. Co. v. Torrey (1803), 58 Ark. 217 g. W. 214. 
 
40 BULLETIN OF THE BUEEAU OP LABOB. 
 
 orado^(<') Idaho, (») Illinois, (<>) Indiana, ('^) Iowa,(«) Massachu- 
 setts,(0 Michigan(«') (though in a somewhat earlier caseC^) it was 
 said that a superintendent " stands in the place of the master in what- 
 ever he does in furtherance of the business and operations he has in 
 charge "),Minnesota,(*) Pennsylvania, (0 Tennessee, C^) Virginia,(') 
 Washington, ('») and Wisconsin. (") It has been recognized in the 
 Fedei-al courts also. (") 
 
 On the other hand are to be ranged those courts which do not con- 
 sider that the character of a vice-principal shifts with the nature of 
 his acts, holding as the better rule that the master is liable for the 
 negligence of his representative whether the negligent act was done 
 by his own hand or by another under his orders. (J") This is appar- 
 ently the position of the courts of Kansas, («) Kentucky, ('') 
 Nebraska, ('■) North Carolina, (») and Ohio. (*) Federal cases sup- 
 porting this view may also be found. (") In Missouri it was re- 
 cently declared by the supreme court that the doctrine • of dual 
 capacity was fully established in that State, (") and a number of 
 cases were cited in support of that view, beginning with Harper v. 
 Indianapolis and Saint Louis Railway Company (1871) (47 Mo. 
 567, 4 Am. Rep. 358). But in the case of Hutson v. Missouri Pacific 
 Railway Company (1892 )• (50 Mo. App. 300), it was held that the 
 negligent performance by a section foreman of ordinary labor such 
 as a coservant would engage in, resulting in injury to a Avorkman in 
 his gang, was the negligence of the employer : " There is no just or 
 logical distinction between the act of the vice-principal in negii- 
 
 "Deep Min. & Drainage Co. v. Fitzgerald (1895), 21 Colo. 533, 43 Pac. 210. 
 i'Larsen v. Le Doux (1905), 11 Idaho 49, 81 Pac. 600. 
 c CWcago & A. R. Co. v. Jlay (1883), 108 111. 2S8. 
 
 <« Salem Stone & Lime Co. v. Chastain (1894), 9 lud. App. 453, 36 X. E. 910. 
 " Collingwood r. Illinois & I. Fuel Co. (1904), 125 Iowa 53T, 101 X. W. 283. 
 /■McPliee V. New England Structural Co. (1905), 188 Mass. 141, 74 N. e. 303. 
 oPsLge V. Battle Creek Pure Food Co. (1905), 142 Mich. 17, 105 N. W. 72. 
 " Shumway v. Walworth & X. Mfg. Co. (1894), 98 Mich. 411, 57 X. W. 251. 
 
 * Soutar V. Jlinueapolis International Electric Co. (1897), 68 Minn. 18, 70 
 N. W. 796. 
 
 J Eicks V. Flynn (1900), 196 Pa. 263, 46 Atl. 360. 
 
 * National Fertilizer Co. v. Travis (1899), 102 Tenn. 16, 49 S. W. 832. 
 ' Southern R. Co. r. Mauzy (1900), 98 Va. 692, 37 S. E. 285. 
 
 »» Say ward v. Carlson (1890), 1 Wash. 20, 23 Pac. 830. 
 "Klochinski r. Shores Lumber Co. (1896), 93 ,Wis. 417, 67 X. W. 934. 
 oReed V. Stockmeyer (1896), 74 Fed. 186 (C. C. A.). 
 
 P Illinois C. R. Co. v. Josey's Admx. (1901), 22 Ky. L. Rep. 1795, 61 S. W. 703. 
 « Consol. Kansas City Smelting & Ref. Co. v. Peterson (1899), 8 Kan. App. 
 316, 55 Pac. 673. 
 
 '•Crystal Ice, Co. v. Sherlock (1893), 37 Nebr. 19, 55 N. W. 294. 
 » Purcell r. Southern R. Co. (1896), 119 N. C. 728, 26 S. E. 161. 
 
 * Berea Stone Co. v. Kraft (1877), 31 Ohio St. 287, 27 Am. Rep. 510. 
 
 « Au V. New York, L. E. & W. R, Co. (1886), 29 Fed. 72; Hardy r. Minneapo- 
 lis & St. L. R. Co. (1888), 36 Fed. ^57. 
 I'Fogarty v. St. Louis Transfer Co. (1804), ISO Mo. 490, 79 si W. 664. 
 
employers' liability in the united states. 41 
 
 gently ordering a servant to do an imprudent thing and in doing the 
 thing himself." (") In Texas also decisions in apparent conflict may be 
 found, some(*) denying the dual capacity theory, while a case of 
 the same date('') supports it. Examples of lack of harmony could be 
 adduced from other States also, and, as appears from the citations 
 given, the rulings of the Federal courts are not uniform. 
 
 A Federal judge in a recent case('*) declared that the test of rank 
 used in the Ross case has been largely superseded in the Federal 
 courts by the test of the character of the act," as followed in the 
 Baugh case. («) " The question is always,"' says the judge, " whether 
 the negligence charged is the neglect of a primary and absolute duty 
 of the master to the servant. If such be its character, no delegation 
 of the performance of that duty to another, no matter how inferior 
 his rank may be in the master's service, can relieve the liability of 
 the master for its neglect." Some discussion was had in an earlier 
 part of this chapter of these nondelegable duties, from Avhich the 
 employer can be relieved only by their performance. Courts differ 
 in their classification of these duties; but where the character of the 
 act and not the rank of the agent is the test of liability, a person 
 charged with the performance of what is considered a nondelegable 
 duty will be classed in respect of such act as the employer's represen- 
 tative. The attitude of the courts of several States and a somewhat 
 general discussion of the duties of this class are to be found on 
 pages 16 to 19 above, to which reference is suggested in lieu of a repe- 
 tition of the statements there made. It may be added here, however, 
 that where the negligent act as fellow-servant cooperates with one's 
 negligence as vice-principal in producing an injury, the effect is to 
 charge the employer with liability. (^) 
 
 The rule that an employer who purchases appliances from a rep- 
 utable manufacturer or dealer is not obligated to test or inspect the 
 same is in effect an avoidance of the duty to see that appliances are 
 reasonably safe; this is practically an exception to the general doc- 
 trine that such duty is nondelegable, and, as was noted above 
 (page 7), it is not admitted in at least one State, and is modified in 
 the Supreme Court. 
 
 The rulings of the courts as to the liability of the employer for 
 the acts of an independent contractor are too contradictory to be sum- 
 marized. The decisions of a few superior courts are indicated on 
 
 "See fui-thei- Dayhai-sh v. Hannibal & St. J. R. Co. (1891), 10.3 JIo. 570, 15 
 S. W. 554, and Russ i: Wabash W. R. Co. (1S02), 20 S. W. 472. 
 
 "Sweeny v. Gulf, 0. & S. F. R. Co. (1892), 84 Tex. 433, 19 S. W. 555; Texas 
 &'. P. R. Co. r. Reed (1895), 32 S. W. 118. 
 
 « Gulf, C. & S. F. R. Co. r. Schwabbe (1892), 21 S. W. 706. 
 
 "^ Peters r. George (1907), 154 Fed. 634. 
 
 " See pages 38 and 39, above. 
 
 t Cody V. Longyeai- (1908), 114 X. TV. 735. (Minn.) 
 
42 BUULETIK OF THE BUREAU OF LABOE, 
 
 page 17, the finding of the employer's liability implying of course 
 that the contractor is regarded as a vice-principal. 
 
 As to maintenance of condition, the master's duty has already been 
 indicated in the paragraphs on the subjects of repairs and inspec- 
 tion. It may be noted here that even if conditions of abnormal dan- 
 ger are purely the result of a coservant's negligence, the employer be- 
 comes responsible as soon as reasonable care has disclosed or would 
 have disclosed the conditions; also that the knowledge which an in- 
 spector or repair man has of dangerous conditions is chargeable to 
 the employer as matter of law. 
 
 Tests not Mutually Exclx sive. — It is not to be understood that 
 the different tests of vice-prineipalship are mutually exclusive in any 
 jurisdiction,, or even in any case in which the question arises. The 
 courts may approach the question in either way. or, as frequently 
 happens, expiessions are used in a single case which refer some to one 
 and some to the other method of determining the point at issue. 
 The general result of using the test of the character of the act may 
 be said to be favorable to the employee, since under it " an act of the 
 master " may be performed by an employee of whatever rank ; tKough 
 obviously it favors the dual capacity theory, and tends in so far to 
 limit recovery for the acts of a superior. 
 
 It is clear that the opportunity for litigation, in connection with the 
 application of the test of the character of the act, lies not so much 
 in the acceptance or rejection of general principles, or of the doctrine 
 of representation as such, for a determination of these points having 
 been once made in a jurisdiction they may be said to be the local law; 
 rather, the numerous accumulated decisions bear mainly on the ques- 
 tion of the boundaries between the field covered by the doctrine of 
 nondelegable duties and that covered by the fellow-servant doctrine, 
 or, as otherwise expressed, between " the act of a master and the act 
 of an employee," boundaries which are, as has been said with good 
 reason, " sometimes quite vague and shadowy." Thus it is established 
 that one of the employer's duties is to use due care to furnish and 
 maintain a safe place to work, while a negligent act on the part of 
 an employee may at any moment render a place unsafe for his co- 
 employees. When or at what point liability attaches is a question 
 that comes before the courts to be determined on the merits of the. par- 
 ticular facts, and', apart from precedents presenting a practical iden- 
 tity of conditions, the question may be fairly considered an open one. 
 Certain general principles are, of course, settled in any case, but, 
 after all, there remains an undetermined margin on the merits of 
 which the plaintiff grounds his undertaking for- a recovery, hoping 
 that in his particular case the scales will turn in his favor, so that 
 instead of conclusive classifications Ijcing formed, it appears rather 
 that the volume of litigation relating to this department of the law of 
 employer's liability is steadily growing. 
 
EMPLOYEBS' LIABILITY IN THE UNITED STATES, 43 
 
 FACTORS MODIFYINa THE LIABILITY AND DEFENSES OF 
 
 EMPLOYEKS. 
 
 Certain modifying factors may be found to exist in the circum- 
 stances of ah accident vv'hich may affect the rights of the employee 
 ajid the liability of the employer, but Avhich impinge on so many 
 points that they do not properly fall under any one of the heads 
 above discussed. The most important of these factors ■will now be 
 briefly presented. 
 
 PROMISE TO EEPAIK. 
 
 In eases where repairs are needed, and the fact is known to the serv- 
 ant, the risk involved in continuing in the seiTice under the condi- 
 tions of disrepair may be shifted to the employer by his giving a 
 promise to remedy the defective conditions. The effect of the promise 
 is the same whether it is made in response to a complaint by the serv- 
 ant or voluntarily. The fact that a promise was made does not suf- 
 fice to conclude the investigation, however, whether the question be 
 one of assumed risks or of contributory negligence. It serves only to 
 introduce new facts for consideration. 
 
 A mere complaint hj an employee or a siirmise that the employer's 
 knowledge of conditions will cause him to make the needed changes 
 will not suffice to cast the liability on the master in any different 
 degree from that indicated in the discussion of his duties as to 
 repair. A definite promise relating to the agency that actually oc- 
 casioned the injury, or s-uch act or expression as would reasonably 
 give rise to an inference of such promise, is necessary. The promise 
 must be made by the employer or his representative, and must be the 
 inducement for the employee's continuance in the situation where the 
 injury occun'ed.('') 
 
 Though the effect of such a promise is not entirely excluded from 
 consideration in cases where it was given before the beginning of 
 work, the doctrine applies chiefly to cases where it was made subse- 
 quent to such beginning. It is then held to rebut the presumption 
 that the employee assumed the risk or that he was guilty of con- 
 tributory negligence in remaining in a place of known danger, though 
 it does not of itself entitle' an injured employee to recovery. 
 
 Asstimpiion of risJt». 
 
 Ordinarily the promise becomes effective as soon as made, but if 
 its fulfillment is set for some indicated period the employer does not 
 become liable under it until the arrival of the time indicated. The 
 special responsibility of the employer continues for a reasonable 
 period only, regard being had for the circumstances of the individual 
 
 «Bodwell T. Nashua Mfg. Co. (1900), TO N. H. 390, 47 Atl. 613. 
 
44 BULLETIN OF THE BUKEATJ OF LABOE. 
 
 case. A complaint by an employee is in effect a declaration that he 
 will no longer continue in service under the conditions of danger, 
 ■while the promise of the toiployer, so long as its validity continues, is 
 said to have established a new relation, the employer impliedly agree- 
 ing that the employee shall not be held to have assumed. the risk.('') 
 
 Gontrihutonj negligence. 
 
 It follows from the giving of the promise that the question of 
 negligence, Avhich, apart from the promise, would have been decided 
 adversely to the plaintiff as a matter of law, will be submitted to the 
 jury, and that some reason other than mere continuance of work in 
 the position where the injury was received must be presented in order 
 to impute contributory negligence. {^) If, however, the place was one 
 of such open and imminent danger that a prudent man would not 
 risk life or limb by continuing to work therein, the promise to repair 
 is not sufficient to relieve of the charge of negligence a servant so 
 continuing to work, (f^) 
 
 Local rules. 
 
 In a few jurisdictions a tendency to restrict the application of the 
 above principles has been apparent, as in Massachusetts, ("^) where a 
 repair hand was excluded from the benefits of a promise, though a 
 mere attendant at a machine would not be; and in Wisconsin, («) 
 where the doctrine was held to apply to tools and machinery but not 
 to place of work; while in New York(^) it has been held that the 
 promise makes no change in the status of the employee in cases where 
 the instrumentality is a simple one and its construction and defects 
 are as well known to him as to his employer. The supreme court of 
 Maine (^) seems to have taken practically the same view as that held 
 by the courts of New York in a comparatively recent case. 
 
 DIRECT OBBERS. 
 
 The fact that an employee was acting under direct orders at the 
 time his injury was received is also influential in 'determining his 
 right to recover where such order had been given. The order must be 
 given by the employer or his representative acting with due authority, 
 though it may reach the employee through an intermediary of equal 
 rank, who is then simply the channel by which it reaches the employee 
 affected. The order must be the cause of the action which resulted in 
 
 « Swift & Co. V. O'Xeill (1900), 187 111. 337, 58 N. E. 416. 
 
 » Hough V. Texas & P. E. Co. (1879), 100 U. S. 213, 25 L. Ed. 612. 
 
 « Texas & N. O. R. Co. i'. Bingle (1895), 9 Tex. Civ. App. 322, 29 S. W. 674. 
 
 <2 Silvia V. Wampanoag Mills (1900), 177 Mass. 194, 58 X. E. 590. 
 
 •^ gbowalter v. Fairbanks (1894), 88 Wis. 376, 60 N. W. 257. 
 
 1 Marsh y. Chickering (1886), 101 X. Y. 306, 5 X. E. 56. 
 
 e Conley i\ Am. Exp. Co. (1895), 87 Me. 352, 32 Atl. 965. 
 
EMPLOYEKS' LIABILITY IN THE UNITED STATES. 45 
 
 the injury, and it must be of itself negligent under existing circum- 
 stances. When these conditions are met, a presumption is raised in 
 the employee's favor, either that he was excusably ignorant of the 
 risks to which his obedience exposed him or that his action was in 
 some degree coerced, so that the employer's customary defenses of as- 
 sumed risk and of contributory negligence are proportionately, though 
 not absolutely, negatived. If the order does not direct exposure to 
 other than the ordinary, assumed risks, no negligence can be charged 
 to the master in connection therewith. Neither do the courts hold him 
 negligent where he was ignorant, actually and without fault, of the 
 dangers to which a servant would be exposed by obedience. But 
 where the employer kneAV of the danger and failed to warn the serv- 
 ant, and still more where the servant was both ignorant and incapa- 
 ble, physically and mentally, of safely performing the work directed, 
 the order will be held negligent and the employee will be entitled to 
 recover for resulting injuries. 
 
 In connection with a direct order, or in response to some complaint 
 or inquiry of the employee, an employer may give assurances of the 
 employee's safety. This may be in the form of a statement that the 
 work does not involve danger or that the workman will be protected 
 in its performance. "Where such an assurance is given by an author- 
 ized person, and it is negligently given, so that the employee is there- 
 by induced to do work or to enter a place other than would probably 
 have been the case apart from the assurance, the employee will not be, 
 as a matter of law, chargeable with either an assumption of the risk 
 or with contributory negligence if injury results. This rule is sub- 
 ject to the same qualifications, on grounds of the actual knowledge 
 of the employee and his going into places of obvious danger, as have 
 been set forth in other connections. Yet, inasmuch as the law re- 
 gards the employer's knowledge of the conditions of the employment 
 as superior to that of the employee, it considers his assurance of 
 safety, especially when accompanied by an order to proceed, to be 
 sufficient' warrant for the employee to lay aside his scruples and per- 
 haps to proceed Avith less vigilance than he would have otherwise 
 exercised. 
 
 In Missouri («) it has been held that an authoritative assurance 
 coupled with an order amounts to a guaranty of safety, though this 
 is riot in accord with the general principles controlling in employers' 
 liability cases. 
 
 Assumption of risks. 
 
 As between the ordinary defenses of the employer, that of assump- 
 tion of risks is less affected by the giving of direct orders, the general 
 rule being that one who knows and appreciates the danger of a peril- 
 
 "Stalzer v. Jacob Dold Packing Co. (1900), 84 Mo. App. 565. 
 30649— Bull. 74—08—4 
 
46 BTJLLETI2Sr OF THE BTJEEATJ OF LABOE. 
 
 ous undertaking, even though he engages in it unwillingly and in 
 obedience to the orders of a superior, must bear the risk.('') If, 
 however, the ser\-ice involves a departure from the customary line of 
 duty and invoh'es dangers not obvious to a person of ordinary 
 prudence and intelligence, the employee will not be held to have 
 assumed the risk. 
 
 Contnhntory negligence. 
 
 The fact of an order is almost conclusive as against the defense 
 of contributory negligence unless the danger was So manifest, glaring, 
 or imminent that a prudent person would refuse to venture upon it. 
 In general the employer will not be heard to declare that the doing 
 of those acts the performance of which he commanded was negli- 
 gence on the part of the servant who obeyed him therein. (*) Even 
 where the circumstances rendered an alternative disobedience justi- 
 fiable, the act of obedience may not have been negligent, especially 
 where an emergency prevented deliberation or an apparent duty 
 demanded the performance of the act. As to the point that such 
 an act was coerced rather than voluntary, the courts have not fur- 
 nished many decisions. If the fact exists, it will be considered, 
 though apart from cases involving minors the compulsion would have 
 to be of an unusual kind to be of decisive weight. In no case will 
 the fact of an order justify a negligent performance of the prescribed 
 undertaking. 
 
 SCOPE AXD COURSE OF EMPLOT3IEXT. 
 
 The principles controlling the liability of the employer liave been 
 considered only in their application to cases where the injury was 
 received by a servant engaged in the duties for which he was specifi- 
 cally or impliedly hired. There is, however, a class of cases in which 
 an injured employee's claim is based on injuries received while he 
 was at a place or in an employment not contemplated in his contract 
 of hiring. 
 
 Voliiiifari/ act of employee. 
 
 If the employee leaves his customary work voluntarily and goes 
 where he has no right to be or undertakes to use machinery which it is 
 not his business to use, he is no better than a trespasser to whom his 
 master owes no duty. ('') Acquiescence by the employer in the conduct 
 of the employee may be construed, however, as extending the scope 
 of employment to the new line of duties, carrying the corresponding 
 mutual obligations. "Wliere the act is for the employer's benefit it 
 
 « Ferreu v. Old Colony E. Co. (1887), 143 JIass. 197, X. E. (508. 
 SHawley v. Northern C. R. Co. (1880), 82 N. X. 370. 
 
 t^Stagg V. Edward Western Tea & Spice Co. (1902), 169 Mo. 489, 69 S. W. 
 391; Green v. Brainerd & N. M. R.,Co. (1902), 88 N. W. 974, 85 Minn. 318. 
 
employees' liability in the united states. 47 
 
 may be decided as a matter of fact that it was i-easonably a part of 
 the employee's duty, though in the absence of both command and 
 acquiescence recovery would be, to say the least, doubtful. 
 
 Act ordered iy employer. 
 
 The case is different where there is a specific direction from the 
 employer or other competent person ordering a temporary departure 
 from the contractual lines of duty. The risks incident to the new 
 employment are in a sense extraordinary, as they are outside of the 
 regular line of duty and were not assumed under the contract relative 
 thereto. 
 
 The elements necessary to a recovery in case of injury resulting 
 from the undertaking of such work are that the departure from 
 the regular employment should be substantial, that it should be in 
 obedience to the orders of a competent person, and that the order 
 given be negligent. (") The mere fact that the work was not that 
 for which the employee contracted is not enough, since a command of 
 the employer and obedience without objection by a person of mature 
 years and ordinary capacity present in themselves no conditions of 
 culpability. If, however, the master knew of some unfitness on the 
 part of the servant or of some increased danger in the new situation 
 of which the employee was uninformed, the giving of the order may 
 be considered as negligent. In the absence of grounds on which to 
 support the charge of negligence, workmen will generally be con- 
 sidered as assuming the risk of the new undertaking, in so far as they 
 are known or are of that open and patent character that charges a 
 person of ordinary intelligence with a knowledge of them.^*) Some 
 courts (") have differed from this view, however, and have in effect 
 made the master giving such an order a guarantor of the safety of 
 the conditions of the new work. The reason given is that the new 
 order carries the employee beyond the contract of hiring, and so also 
 away from his implied undertaking as to assumed risks. In the 
 Adams and the Fort cases, the rule appears to be specially applicable 
 on account of the youth or inexperience of the injured employee 
 whereby he was not readily able to comprehend the risks. This con- 
 dition does not appear in the Mann and the Lalor cases, however. 
 
 Contributory negligence is not ordinarily allowed as a defense to an 
 employer giving orders for a departure from the usual line of serv- 
 
 « Galveston Oil Co. v. Thompson (1890), 76 Tex. 235, 13 S. W. 60. 
 
 SFelton v. Girardy (1900), 43 C. C. A. 439, 104 Fed. 127. 
 
 "Pittsburgh, 0. & St. L. R. Co. v. Adams (1886), 105 Ind. 151, 6 N. E. 187, 
 citing Mann v. Oriental Print Worlis (1875), 11 R. I. 152; Union P. R. Co. v. 
 Fort (1873), 17 Wall. 554; Lalor v. Chicago, B. & Q. R. Co. (1869), 52 111. 401, 
 etc. 
 
48 BULLETIN OF THE BUKEAU OF LABOE. 
 
 ice, the reason therefor being practically that given above where the 
 question of obedience to direct orders was discussed, i. e., that a person 
 will not be heard to say that it is negligence to carry out his own 
 orders. One can not, however, enter upon a work involving obvious 
 and extreme risks and claim the employer's protection in so doing, 
 nor can he enter on work for which he knows himself to be essen- 
 tially unfitted but as to which he makes no protest or objection. Still 
 the presumption that the employer is better informed as to the con- 
 ditions of the work and the necessary qualifications for doing it prop- 
 erly, and the rule of the customary duty of obedience to a superior, 
 will serve to relieve the employee even in such cases. 
 
 Course of employment. 
 
 It may occur that an injured person received his injury under cir- 
 cumstances that raise the question whether or not the accident oc- 
 curred as the result of his employment within its true bounds. Such 
 a question arises, for instance, when an employee is being transported 
 on a vehicle owned or operated by his employer. If the injury was 
 received while he was being transported for the purpose of forward- 
 ing the undertaking for which he was engaged, it will be regarded as 
 an- incident of his employment, and the rules as to assimiption of 
 risks will control. ('^) The possible negligence of the employees 
 engaged in operating a train on which a bridge gang is, according 
 to custom, being conveyed to the place of its actual work is such a 
 risk as would ordinarily be contemplated in accepting such em- 
 ployment. The same rule will apply to the negligence of other 
 classes of employees, as track hands, if their negligence would not 
 have furnished gi'ound of action if the injured employee had been 
 actually at work at the time of his injury. 
 
 If, however, the employee was traveling entirely for his own pur- 
 poses, and was not at the time subject to the orders of his employer, 
 the relations of master and servant will be held to be suspended, and 
 the injured person will have the rights of a stranger. In a Penn- 
 sylvania case(*) it was held that an employee who received transpor- 
 tation to and from the place of his employment as a part of his com- 
 pensation was entitled to redress as a passenger in the event of an 
 accident inflicting injury. The same view seems to have been taken 
 by the supreme court of "Washington, (") while in New York(«) this 
 ruling was condemned, and the fact of transportation being considered 
 as part payment for his services was held not to take the case out 
 
 ""« Shannon v. Union E. Co. (1906), 27 R. I. 475, 63 Atl. 488. 
 
 i-O'Donnell v. Allegheny Valley R. Co. (1868), 59 Pa. 239, 98 Am. Dec. 336. 
 c Peterson v. Seattle Traction Co. (1901), 23 Wash. 643, 65 Pac. 543. 
 «Vic)i V. New York C. & H. K. R. Co. (1884), 95 N. Y. 267, 47 Am. Rep. 36. 
 
employees' liability in the united states. 49 
 
 of the rule stated in the paragraph above. The courts of Ken- 
 tucky,('') Massachusetts, (*) Pennsylvania, (") and Tennessee(^) have 
 allowed recovery for injuries received by employees riding on traihs 
 or street cars at the close of the day's work or for meals without pay- 
 ment of fare, the vieY\r being taken that such transportation was not 
 connected with the performance of their duties, which were at an end 
 for the time, and that they had no connection with the operation of 
 the vehicle on which they rode. 
 
 The variety of facts involved in cases presenting the question of 
 course of employment is so great that it would practically require 
 an enumeration of the decisions to present the attitude of the courts 
 thereon. The general rule has been mentioned, i. e., that the em- 
 ployer is not liable for injuries incurred by employees going beyond 
 the scope of their employment. (") They approximate the condition 
 of volunteers, with whom they are sometimes classed. By the term 
 '• volunteers " is meant persons not in the service of the employer 
 prior to their engaging, without authorization, in the employment at 
 which they received the injury compl'ainecl of, and their situation is 
 in general no better than that of trespassers. They are held to have 
 assumed the limitations of servants without acquiring the right to 
 claim the performance of a master's duties tovt-ard them. C) They 
 will be protected from wanton injuries at the hands of the regular 
 employees, however, (^) and the circumstances may be such that they 
 will be held to warrant a service rendered at the invitation of persons 
 not ordinarily authorized to hire emploj^ees so as to give to injured 
 volunteers a right to recover. ('') Or it might be said that the situa- 
 tion of the persons so employed is modified so that they are no 
 longer regarded as volunteers, at least not as trespassers. 
 
 The reason for the rule as to volunteers is that no one can be sub- 
 jected to the obligations of an employer, which are the result of 
 contract, without his consent thereto, either express or implied. 
 This being the case, the situation of a person undertaking to render 
 service, either on his own motion or at the invitation of an unau- 
 thorized person, gains nothing from the fact that the danger was not 
 appreciated. This prevents exceptions in behalf of minors, though 
 
 "Louisville & X E. Co. v. Scott (1900), 22 Ky. L. Rep. 30, 56 S. W. 674. 
 
 Ji Dickinson r. West End St. R. Co. (1901), 177 Mass. 365, 59 N. E. 60. 
 
 "McNulty r. Pennsylvania R. Co. (1897), 182 Pa. 479, 38 Atl. 524. 
 
 <* Chattanooga Rapid Transit Co. v. Tenable (1900), 105 Tenn. 460, 58 S. Vv^. 
 861. 
 
 " Page 46, supra. 
 
 f Langan v. Tyler (1902), 114 Fed. 716 (C. C. A.). 
 
 ff Kentucky C. R. Co. v. Gastineau (1885), 83 Ky. 119; Evarts i: St. Paul, M. 
 & M. E. Co. (1894), 56 Minn. 141, 57 N. W. 459. 
 
 '•Bradley v. Xew York C. R. Co. (1875), 62 X. Y. 99; Barstow v. Old Colony 
 R. Co. (1887), 143 Mass. 535, 10 X E. 255. 
 
50 BULLETIN OF THE BUKBAIT OF LABOE. 
 
 in some jurisdictions they are not regarded as trespassers when they 
 are too young to be charged with discretion, and thus a greater, 
 degree of caution must be exercised in their behalf. 
 
 DETAILS OF WORK. 
 
 A general limitation of the obligations of the employer is to be 
 found in the rule that he is not bound to supervise the purely opera- 
 tive details of his employees' undertakings. He will not be respon- 
 sible, therefore, for merely transitory dangers, " existing only on the 
 single occasion when the injury was sustained, and due to no fault 
 of plan or construction, or lack of repair, and to no permanent defect 
 or want of safety in the defendant's works, or in the manner in which 
 they had been ordinarily used.''(<^) So, also, if the danger arises in 
 the progress of the work and is one of the understood conditions of 
 such progress, no liability attaches to the employer. Acts which are 
 involved in the preparation or care of instrumentalities cast no 
 responsibility upon the employer where such acts are a part of the 
 work of the employees affected. If, however, the person caring for 
 or preparing the agencies is not the one who uses them, the latter 
 person will, according to a large number of cases, have an action for 
 injuries resulting from the negligence of the first-named employee, C") 
 though mere difference of employment does not imply such right. 
 Other decisions, many of them subsequently overruled, make repair 
 hands fellow-servants with the users of the instrumentalities. 
 
 The improper use of suitable instrumentalities, or failure to use 
 those furnished, erroneous choice of methods of work, or improper 
 orders and assignments of subordinates to duty are acts of a superior 
 for which the employer will not in general be held responsible. (^) In 
 the same category are found the giving of signals, the transmission 
 of orders, and the manipulation of instrumentalities (e. g., cars on 
 railway tracks) during the progress of work.('') The adjustment of 
 temporary structures and appliances used in the course of the work 
 are within the rule of nonliability. 
 
 The reverse has been held where the appliance causing the injury 
 was furnished by the employer himself, where there was an implied 
 undertaking that the appliance furnished should be in a completed 
 condition, where ihe employer failed to furnish suitable material for 
 the preparation of an instrumentality, where the employee did not 
 
 "Meehan v. Spiers Mfg. Co. (1899), 172 Mass. 375. 52 N. E. 518. 
 
 6 Ford V. Fitclibnrg E. Co. (1872), 110 Mass. 240, 14 Am. Rep. 598; Hough v. 
 Texas & P. B. Co. (1879), 100 XJ. S. 213; Gunter r. Graniteville Mfg, Co. (1882), 
 18 S. C. 262, 44 Am. Eep. 573. 
 
 " Cullen i: Norton (1891), 126 N. Y. 1. 26 N. E. 905. 
 
 <! Martin v. Atchison, T. & S. F. E. Co. (1897), 166 V. S. 399, 17 Sup. Ct. 603. 
 
employers' liability in the united states. 51 
 
 have free choice in the selection of materials, and where the danger 
 resulted from conditions which might properly be classed as perma- 
 nent. 
 
 In concluding this review of the common-law phases of the em- 
 ployer's liability it is hardly necessary to recur to the preliminary 
 statements made as to the variant and contradictory interpretations 
 promulgated by the same courts at different times and to the dis- 
 similarity of views held by the courts of different States, since the 
 importance of definite, unifying legislation must be obvious. In 
 considering the statutes enacted on the subject, a considerable influ- 
 ence toward harmonizing the law will be found in the fact that a 
 legislature enacting a statute copied from another State is assumed 
 to take over also the construction and interpretation put upon the 
 statute by the courts of the earlier enacting State prior to its adoption 
 by the legislature of the later one. Apart from this fact, however, 
 the diversities of interpretation of the common law reappear to affect 
 the construction put upon statutes of independent enactment in the 
 various States. > 
 
 It was generally believed that a long step toward the harmoniza- 
 tion of the law relating to the liability of common carriers for injuries 
 to their employees was taken in 1906 in the enactment of a Federal 
 statute applying to interstate commerce generally. This belief was 
 based on the fact that such a statute would supersede all local statutes 
 and rulings where it applied, and also because its construction by the 
 Supreme Court of the United States, in any case that should come 
 before it, would become the authoritative ruling in every jurisdiction 
 on the point involved. By the ruling of the Supreme Court {") this 
 law was declared not constitutional. What State legislation has ac- 
 complished will appear in the main in the following portions of this 
 article. 
 
 LIABILITY UNDER STATUTE LAW. 
 
 EMPLOYEES' LIABILITY LAWS. 
 
 The laws enacted in the United States for the purpose of deter- 
 mining the liability of the employer for injuries to his employees are 
 of two principal classes, one relating in a more or less general and 
 inclusive way to the subject of employment, the other confining itself 
 to specified forms or groups of employment. The laws of both classes 
 are reproduced in the following compilation, following which is a 
 brief discussion of their application and judicial construction. 
 
 oNos. 216, 222, October term, 190T. See pages 216-239, below. A bill in- 
 tended to embody sucJi provisions of this act as could be constitutionally 
 enforced lias been introduced, but lias not at this date come up for consideration. 
 
52 BULLETIN OF THE BXJEEAU OF LABOR. 
 
 SAFETY APPLIANCE AND lUSPECTIOlT LAWS. 
 
 A body of laws that are related to those here considered prescribes 
 the use of safety appliances on railways and in factories and regu- 
 lates the operation of mines Avith a view to the safety of employees. 
 These laws frequently contain a provision that violation of the 
 statute shall entail a special liability upon the employer for injuries 
 occasioned by such a iolation, or shall affect his defenses in actions 
 for injuries. The violation of lav>"s of this class is construed by the 
 courts of some States only as evidence of negligence, ('') by others 
 as negligence per se.('') In the latter view, the defense of assumed 
 risks is barred, (") and the party injured is not bound to show that he 
 was in the exercise of due care to avoid an injury caused by a will- 
 ful violation. (<*) None of these laws can properly be reproduced in 
 the present connection ; but their more important provisions, from the 
 standpoint of their effect on the liability of the employer, will be 
 noted. 
 
 BIGHT OF ACTIOH FOB ITfJUBIES CAUSING DEATH. 
 
 In almost every jurisdiction in this country laws have been enacted 
 which, while not employers' liability laws in form, have yet gone far 
 to ameliorate the condition of the employee suffering under the hard- 
 ship of the common-law rule that prohibits recovery of damages in 
 cases where an injured person dies immediately as a consequence 
 of his injury. Though this statute in itself does not affect the usual 
 defenses of the employer in cases of accidental injury, it does give a 
 new right to the heirs or personal representatives of a deceased em- 
 ployee, conferring upon them the same right of action that the in- 
 jured person would have had had he survived. These laws are gen- 
 erally held to inure to the benefit of nonresident alien benefici- 
 aries. (") The laws of the various States differ in some minor points, 
 though they are alike modeled after an English act of 1846, known 
 as '' Lord Campbell's act." The States are not uniform in their rul- 
 ings on the question as to vfhether or not punitive or exemplary dam- 
 ages are recoverable under their acts, but only such rights can be 
 enforced as the statute provides. The amount recoverable is fixed 
 
 " I'itcber V. Xow York C. & II. K. R. Co. (1S91), 127 N. y. 678, 28 N. B. 136; 
 Jiiliiter Coal Min. Co. i: Mercer (1S99), S4 111. App. 90. 
 
 iJColliott V. American Mfg. Co. (1897), 71 Mo. App. 163; Lore v. Am. Mfg. 
 Co. (1901), IGO Mo. 608, 61 S. AV. 678. 
 
 "Xiirramore v. Cleveland, etc., R. Co. (1899), 96 Fed. 298; United States 
 Cement Co. v. Cooper (1907), 82 N. E. 981. (Ind.) (See under Restrictions of 
 employees' riglit to recover, page 14, above.) 
 
 « Pawnee Coal Co. v. Eoyce (1900), 184 111. 402, 56 N. E. 1090. 
 
 «Mulhall r. Fallon (1000), 170 5Iass. 20G, 57 X. E. 380; Low Moor Iron Co. 
 V. La Bianca's Admr. (1906), 55 S. E. 532, 106 Va. S3. 
 
EMPLOYEBS' LIABILITY IN THE UNITED STATES. 53 
 
 by the statutes of some States, while others declare in the constitu- 
 tion of the State that the amount shall not be restricted. Persons 
 properly classifiable as beneficiaries must be found to bring the 
 action, the persons so named by the English act being the wife, hus- 
 band, parent, and child of the deceased person. In a number of 
 States the use of the words " personal representatives " implies a 
 less restricted classification of beneficiaries. Of the same effect is 
 the ruling in a case under the statute of Connecticut on this subject, 
 that the ground of damages is not the loss to the relatives, but the 
 personal injury to the deceased. ('') 
 
 Laws governing the liability of employers either contain independ- 
 ent provisions conferring the right of action in cases of death from 
 accidental injury or refer to the State statute providing for such 
 action. 
 
 Owing to the fact that these laws are not to be regarded as em- 
 ployers' liability laws, and, further, that they are very similar in their 
 principal features, no reproduction of them will be made beyond a 
 presentation of the law of the District of Columbia (Code of 1901), 
 which will serve as an example of this class of statutes: 
 
 Section 1301. "Whenever by an injury done or happening within 
 the limits of the District of Columbia the death of a person shall be 
 caused by the wrongful act, neglect, or default of any person or 
 corporation, and the act, neglect, or default is such as would, if death 
 had not ensued, have entitled the party injured, or if the person in- 
 jured be a married woman, have entitled her husband, either sepa- 
 rately or by joining with the Avife, to maintain an action and recover 
 damages, the person who or corporation which would have been liable 
 if death had not ensued shall be liable to an action for damages for 
 such death, notwithstanding the death of the person injured, even 
 though the death shall have been caused under circumstances which 
 constitute a felony ; and such damages shall be assessed with reference 
 to the injury resulting from such act, neglect, or default causing such 
 death, to the widow and next of kin of such deceased person: Pto- 
 ■cided, That in no case shall the recovery under this act exceed the sum 
 of ten thousand dollars: And provided further, That no action shall 
 be maintained under this chapter in any case when the party injured 
 by such wrongful act, neglect, or default has recovered damages there- 
 for during the life of such party. 
 
 Sec. 1302. Every such action shall be brought by and in the name 
 of the personal representative of such deceased person, and within 
 one year after the death of the party injured. 
 
 Sec. 1303. The damages recovered in such action shall not be ap- 
 propriated to the payment of the debts or liabilities of such deceased 
 person, but shall inure to the benefit of his or her family and be dis- 
 tributed according to the provisions of the statute of distribution in 
 force in the said District of Columbia. 
 
 oMcEIligott V. Randolph (1801), 61 Conn. 157. 
 
54 BULLETIN OF THE BUEEAU OF LABOE. 
 
 Following is a compilation of the various laws in the United 
 States regulating the liability of employers for injuries to employees, 
 arranged alphabetically according to States and Territories : 
 
 ALABAMA. 
 
 CODE OF 1897. 
 
 •LiabiUtii of employers for injuries to employees. 
 
 Injury caused SECTION 1749. When a personal injury is received by a servant 
 
 ^y — or employee in the service or business of the master or employer, 
 
 the master or employer is liable to answer in damages to such 
 
 servant or employee, asif he were a stranger, and not engaged iu 
 
 such service or employment, in the cases following: 
 
 Defects; 1. When the injury Is caused. by reason of any defect iu the 
 
 condition of the ways, works, machinery, or plant connected with, 
 
 or used in the business of the master or employer. 
 
 Negligenceof 2. Wheli the injury is caused by reason of the negligence of 
 
 superintend- any person in the service or employment of the master or em- 
 
 ' ployer, who has any superintendence intrusted to him, whilst in 
 
 the exercise of such superintendence. 
 Oronelnaiv ?>. When such injury is caused by reason of the negligence of 
 , tlioiity ; finy person in the service or employment of the master or em- 
 
 ployer, to whose orders or directions the servant or employee, at 
 the time of the injury, was bound to conform, and did conform, 
 if such Injuries resulted from his having so conformed. 
 Obedience, to 4. When such injury is caused by reason of the act or omis- 
 rules or in- gj^Q pf ^jiy person in the service or employment of the master or 
 ions , employer, done or made in obedience to the rules and regulations 
 or by-laws of the master or employer, or in obedience to partic- 
 ular instructions given by any person delegated with the authority 
 of the master or employer In that behalf. 
 Negligenceof 5. When such injury is caused by reason of the negligence of 
 person in j^jjy person in the service or employment of the master or em- 
 roadltgnal'etci ployer, who has the charge or control of any signal, points, loco- 
 motive, engine, switch, car, or train himu a railway, or of any 
 part of the track of a railway. 
 Exceptions. But the master or employer is not liable under this section, if 
 the servant or employee knew of the defect or negligence causing 
 the Injury, and failed in a reasonable time to give Information 
 thereof to the master or employer, or to some person superior to 
 himself engaged in the service or employment of the master or 
 employer, unless he was aware that the master or employer, or 
 such superior already knew of such defect or negligence; nor is 
 the master or employer liable under subdivision 1, unless the de- 
 fect therein mentioned arose from, or had not been discovered or 
 remedied owing to the uegligeuce of the master or employer, or 
 of some person In the service of the master or employer, and In- 
 trusted by him with the duty of seeing that the ways, works, 
 machinery, or plant, were iu proper condition. 
 D.images ex- SEC. 1750. Damages recovered by the servant or employee, of 
 erupt. " and from the master or employer, are not subject to the payment 
 
 of debts, or any legal liabilities incurred by him. 
 Injury cans- Sec. 1751. If Such Injury results In the death of the servant or 
 Ing death. employee, his personal representative is entitled to maintain an 
 
 action .therefor, and the damages recovered are not subject to 
 the payment of debts or liabilities, but shall be distributed accoi>d- 
 ing to the statute of distributions. 
 
W-' 
 
 employees' liability IIT THE UNITED STATES. 55 
 
 AHIZONA. 
 
 REVISED STATUTES OF 1901. 
 
 Civil Code. 
 
 Acts of fellow-servants. 
 
 Skction 2767. Every corporation doing business in the territory Employing 
 of Arizona, shall be liable for all damages done to any employee f;"^^""'".*"'^ 
 in consequence of any negligence of its agents or employees to any 
 person sustaining such damage : Provided, Such corporation has Proviso, 
 had previous notice of the incompetency, carelessness or negli- 
 gence of such agent or employee. 
 
 ABKAWSAS. 
 
 DIGEST OF STATUTES— 1904. 
 Felloif-servants — Railroad companies. 
 
 Section 6658. All persons engaged in the service of any railway vice-princl- 
 corporations, foreign or domestic, doing business in this State, P'^'^ defined. 
 Who are intrusted by such corporation with the authority of super- 
 intendence, control or command of other persons in the employ or 
 service of such corporation, or with the authority to direct any 
 other employee, in the performance of any duty of such employee, 
 are vice-principals of Such corporation, and are not fellow-servants 
 with such employee. 
 
 Sec. 6659. All persons who are engaged In the common service Fellow -serv- 
 of such railway corpoi-ations, and who, while so engage^, are^ots. 
 working together to a common purpose, of same grade, neither 
 of such persons being intrusted by such corporations with any 
 superintendence or control over their fellow-employees, are fellow- 
 servants with each other : Provided, Nothing herein contained 
 shall be so construed as to make employees of such corporation 
 in the service of such corporation fellow-servants with other em- 
 ployees of such corporation engaged in any other department or 
 service of such corporation. Employees who do not come within 
 the provisions of this section shall not be considered fellow-serv- 
 ants. 
 
 Sec. 6660. No contract made between the employer and em- Contracts 
 ployee based upon the contingency of the injury or death of the l.i™iti"S liabil- 
 employee limiting the liability of the employer imder this act, or 
 fixing damages to be recovered, shall be valid and binding. 
 
 ACTS OF 1907. 
 
 Chapter 09. — Liability of employers for injuries to employees. 
 
 Section 1. All railroad companies operating within this State, injury caused 
 whether incorporated or not, and all corporations of every kind q|1_ "^"g™ce 
 and character, and every company whether incorporated or not, 
 engaged in the mining of coal, who may employ agents, servants 
 or employees, such agents, servants or employees being in the ex- 
 ei'cise of due care, shall be liable to respond in damages for in- 
 juries or death sustained by any such agent, employee or servant, Employer ; 
 resulting from the careless omission of duty or negligence of such 
 employer, or which may result from the carelessness, omission of 
 duty or negligence of any other agent, servant or employee of Fellow -serv- 
 the said employer. In the same manner and to the same extent as '"'*• 
 if the carelessness, omission of duty or negligence causing the 
 injury or death was that of the employer. 
 
 [The law regulating the working of mines pu^vides that a right 
 of action for direct damages shall accrue to any party injured, or 
 to his heirs if the injury results in death, where the injury is oc- 
 casioned by a willful violation of the statute, or a willful failure 
 to comply with its provisions. Dig. Stat., section 5350, amended 
 by acts of 1905, chapter 225.] 
 
56 BULLETIN OF THE BUEBATJ OF LABOB, 
 
 CALIFORNIA. 
 
 DEERING-S CODES AND STATUTES, 1885. 
 
 Civil Code. 
 
 LlaliJity of rinplovers for injuries to employees. 
 
 Oi-dinai-y Section 1070 (as amendea by chapter 97, Acts of 1907). An 
 ' eii]lil<jyer is not bound to indemnify his employee for losses suf- 
 
 f(>red by the latter in consequence of the ordinary risks of the 
 business iu which he is employed, nor in consequence of the negli- 
 gence of another person employed by the same employer in the 
 same general business, unless the negligence causing the injury. 
 was committed in the performance of a duty the employer owes 
 by law to the employee, or unless the employer has neglected 
 to use ordinary care in the selection of the culpable employee: 
 
 Superior Provided, nevertheless, That the employer shall be liable for such 
 servants. injury when the same results from the wrongful act, neglect or 
 
 default of any agent or officer of such employer, superior to the 
 employee injured, or of a person employed by such employer hav- 
 ing the right to control or direct the services of such employee 
 injured, and also when such injury results from the wrongful act. 
 
 Other dep.irt- neglect or default of a coemployee engaged in another department 
 ments, etc. of labor from that of the employee injured, or employed upon a 
 machine, railroad train, switch signal point, locomotive engine, 
 or other appliance than that upon which the employee [who] is 
 injured is employed, or who is charged with dispatching trains, 
 or tfansmitting telegraphic or telephonic orders upon any rail- 
 road, or in the operation of any mine, factory, machine shop, or 
 other industrial establishment. 
 
 Knowledge. Knowledge by an employee injured of the defective or unsafe 
 character or condition of any machinery, ways, appliances or 
 structures of such employer shall not be a bar to recovery for any 
 Injury or death caused thereby, unless it shall also appear that 
 such employee fully understoocl, comprehended and appreciated 
 the dangers incident to the use of such defective machinery, 
 ■\A-ays, appliances or structures, and thereafter consented to use 
 the same, or continued in the use thereof. 
 
 Injuries AVlien death, whether instantaneous or otherwise, results from 
 causing death, j^ injury to an employee received as aforesaid, the personal rep- 
 resentative of such employee shall have a right of action therefor 
 against such employer, and may recover damages in respect 
 thereof, for and on behalf, and for the benefit of the widow, child- 
 ren, dependent parents, and dependent brothers and sisters, in 
 order of precedence as herein stated, but no more than one action 
 shall be brought for such recovery. 
 
 Waivers. Any contract or agreement, express or implied, made by any 
 
 such employee to waive the benefits of this section, or any part 
 thereof, shall be null and void, and this section shall not be con- 
 strued to deprive any such employee or his personal representa- 
 tive, of any right or remedy to which he Is now entitled under the 
 laws of this State. 
 
 Contributory 'pjie rules and principles of law as to contributory negligence 
 negligence. ^vhich apply to other cases shall apply to cases arising under this 
 section, except in so far as the same are herein modified or 
 changed. 
 
 Sec. 1971. An employer must in all cases indemnify his em- 
 ployees for losses caused by the former's want of ordinary care. 
 
 [Various acts regulating the working of mines provide that vio- 
 lation thereof or willful failure to comply therewith renders per- 
 sons so offending liable to all damages resulting because of such 
 violation or failure. Acts of March 13, 1872; act of March 27, 
 1S74; acts of 1893, chapter 74.] 
 
EMPLOYEBS' LIABILITY IN THE UNITED STATES. 57 
 
 COLORADO. 
 CONSTITUTION. 
 
 Article 15. — Oontracts of employees waiving right to damages. 
 
 Section 15. It shall be unlawful for any person, company or cor- Contracts 
 poration to require of its servants or employees, as a condition of ?'^i^^°s right 
 their employment or otherwise, any contract or agreement whereby ° ™^^ ^' 
 such person, company or corporation shall be released or dis- 
 charged from liability or responsibility on account of personal in- 
 juries received by such servants or employees while in the service 
 of such person, company or corporation by reason of the negligence 
 of such person, company or corporation, or the agents or employees 
 thereof, and such contracts shall be absolutely null and void. 
 
 MILLS' ANNOTATED STATUTES OF 1891 AND SUPPLEMENT 
 
 OF 1904. 
 
 LiattUity of emploijcrs for iiijarics to employees. 
 
 Section 1511a. Where, after the passage of this act, personal injury caused 
 injury is caused to an employee, who is himself in the exercise of ^^ — 
 due cafe and diligence at the time; 
 
 (1) By reason of any defect in the condition of the ways, works Defects ; 
 or machinery connected with or used m the business of the em- 
 ployer, which arose from or had not been discovered or remedied 
 
 owing to the negligence of the employer, or of any person in the 
 service of the employer, and intrusted by him with the duty of see- 
 ing that the ways, works and machinery were in proper condition ; 
 or 
 
 (2) By reason of the negligence of any person in the service of Negligence o( 
 the employer, intrusted with or exercising superintendence vi'hose |"|'?''''^**°*'" 
 sole or principal duty is that of superintendence; 
 
 (3) By reason of the negligence of any person in the service of Of person in 
 the employer who has the charge or control of any switch, signal, S'^^d^l °*/^t' 
 locomotive engine or train upon a railroad, the employee, or in ° ^ ^"^ ' ^ ''' 
 case the injury results in death the parties entitled by law to sue 
 
 and recover for such damages shall have the same right of com- 
 pensation and remedy against the employer, as if the employee had 
 not been an employee of or in the service of the employer or en- 
 gaged in his or its work. 
 
 Sec. 1511b. The amount of compensation recoverable under this Damages, 
 act, in case of a personal injury resulting solely from the negli- 
 gence of a coemployee, shall not exceed the sum of five thousand 
 dollars. No action for the recovery of compensation for injury or 
 death under this act shall be maintained unless written notice of Notice. 
 the time, place and cause of the injury is given to the employer 
 within sixty days, and the action is commenced within two years Limitation, 
 from the occurrence of the accident causing the injury or death. 
 But no notice given under the provisions of this section shall be 
 deemed invalid or insufficient solely by reason of any inaccuracy 
 in stating the time, place or cause of injury : Provided, It is 
 shown that there was no intention to mislead, and that the party 
 entitled to notice was not in fact misled thereby. 
 
 Sec. 1511c. Whenever an employee enters Into a contract, either Contractors' 
 written or verbal, with an independent contractor, to do part of ^"'P'oy^'^s. 
 such employer's work, or whenever such contractor enters into 
 a contract with a subcontractor to do all or a part of the work 
 comprised in such contract or contracts with the employer, such 
 contract or subcontract shall not bar the liability of the employer 
 for injuries to the emi^loyees of such contractor or subcontractor, 
 by reason of any defect in the condition of the ways, works, 
 machinery or plant, if they are the property of the employer or 
 furnished by him, and if such defect arose or had not been dis- 
 covered or remedied through the negligence of the employer or 
 of some person intrusted by him with the duty of seeing that they 
 were in proper condition. 
 
58 BULLETIN OF THE BTJKEAU OF LABOR. 
 
 Knowledge of Sec. 1511d. An employee or those entitled by law to sue and re- 
 defect, cover, under the provisions of this act, shall not be entitled under 
 this act to any right of compensation or remedy against his em- 
 ployer in any case where such employee knew of the defect or neg- 
 ligence which caused the injury, and failed within a reasonable 
 time to give or cause to be given information thereof to the em- 
 ployer or to some person superior to himself In the service of his 
 employer, who had Intrusted to Wm some general superintendence. 
 
 Liability of gBc. I511e. If the injury sustained by the employee is clearly the 
 e ow-servant. j-ggyj^- ^j ^jjg negligence, carelessness or misconduct . of a coem- 
 ployee the coemployee shall be equally liable under the provisions 
 of this act, with the employer, and may be made a party defendant 
 in all actions brought to recover damages for such injury. tJpon 
 the trial of such action, the court may submit to and require the 
 jury to find a special verdict upon the question as to whether the 
 employer or his vice-principal was or was not guilty of negligence 
 proximately causing the injury complained of; or whether such 
 injury resulted solely from the negligence of the coemployee, and 
 incase the jury by their special verdict find that the injury was 
 solely the result of the negligence of the employer or vice-princi- 
 pal, then and in that case the jury shall assess the full amount 
 of plaintifC's damages agamst the employei-, and the suit shall be 
 dismissed as against the employee; but in case the jury by their 
 special verdict find that the injury resulted solely from the negli- 
 gence of the coemployee, the jui-y may assess damages both against 
 the employer and employee. 
 
 Acts of fel- Sec. ISllf. Every corporation, company or individual who may 
 low-servants, gniploy agents, servants or employees, such agents, servants or 
 employees being In the exercise of due care, shall be liable to 
 respond in damages for injuries or death sustained by any such 
 agent, employee or servant, resulting from the carelessness, omis- 
 sion of duty or negligence of such employer, or which may have 
 resulted from the carelessness, omission of duty or negligence of 
 any other agent, servant or employee of the said employer, in the 
 same manner and to the same extent as if the carelessness, omis- 
 sion of duty or negligence causing the Injury or death was that of 
 the employer. 
 
 Law con- Sec. 1511g. All acts and parts of acts in conflict herewith are 
 strued. hereby repealed: Provi4^d, however. That this act shall not be 
 
 construed to repeal or change the existing laws relating to the 
 right of the person injured, or in case of death, the right of tie 
 tusband or wife, or other relatives of a deceased person, to main- 
 tain an action against the employer. 
 
 [The law regulating the working of mines provides for a right 
 of action for direct damages against persons violating or willfully 
 tailing to comply with said law, where such violation or failure 
 results in injury. When death ensues, the widow or lineal heirs 
 may sue. Section 3192. 
 
 An act requiring railroad switch rails to be blocked makes a 
 failure to do so prima facie evidence of negligence where em- 
 ployees or others are injured as a result of such failure. Section 
 3751e.] 
 
 COITNECTICTJT. 
 
 GEXEEAL STATt'TES OF 1902. 
 
 Duties of emplo'.ievs. 
 
 Sate place, SECTION -4702. It Shall be the duty of the master to exercise 
 appliances, etc. reasonable care to provide for his servant a reasonably safe place 
 In which to work, reasonably safe appliances and instrumentali- 
 ties for his work, and fit and competent persons as his colabor- 
 ers; to exercise reasonable care iu the appointment or designation 
 of n vice-principal, and to appoint as such vice-principal a fit and 
 competent person. The default of a vice-principal in the per- 
 formance of any duty Imposed by law on the master shall be the 
 default of the master, 
 
employees' liability in the united states, 59 
 
 delawake. 
 
 {An act requiring air brakes to be used on passenger trains 
 makes violators thereof liable in damages for injuries resulting 
 from their violation. Acts of 1903, chapter 394.] 
 
 FLORIDA. 
 
 GENBBAL STATUTES OF 1906. 
 LiaMlity of railroad companies for injuries to employees. 
 
 Section 3148. A railroad company shall be liable for any dam- Dam age 
 age done to persons, stock or other property, by the running of atioif'^o'/ cars 
 the locomotives, or cars, or other machinery of such company, or etc. 
 for damage done by any person in the employ and service of such 
 company, unless the company shall make It appear that their 
 agents have exercised all ordinary and reasonable care and dili- 
 gence, the presumption in all cases being against the company. 
 
 Sec. 3149. No person shall recover damages from a railroad Negligence. 
 company for injury to himself or his property, where the same is 
 done by his consent, or is caused by his own negligence. If the Comparative 
 complainant and the agents of the company are both at fault, the negligence, 
 former may recover, but the damages shall be diminished or in- 
 creased by the jury in proportion to the amount of default at- 
 tributable to him. 
 
 Sec. 3150. If any person is Injured by a railroad company by Negligence 
 the running of the locomotives or cars, or other machinery of °^i *^"°^'^'^'^^' 
 stich company, he being at the time of such injury an employee of 
 the company, and the damage was caused by negligence of an- 
 other employee, and without fault or negligence on the part of the 
 person injured, his employment by the company shall be no bar to 
 a recovery. No contract which restricts such liability shall be Contracts, 
 legal or binding. 
 
 GEOBGIA. 
 
 CODE OF 1895. 
 Liahility of railroad companies for injuries to employees. 
 
 Section 2297. Railroad companies are common carriers, and . Measure of 
 liable as such. As such companies necessarily have many em- ^'^''"i*^' 
 ployees who can not possibly control those who should exercise 
 care and diligence in the running of trains, such companies shall 
 be liable to such employees as to passengers for injuries arising 
 from the want of such care and diligence. 
 
 Sec. 2321. A railroad company shall be liable for any damage . Damages aris- 
 done to persons, stock or other property, by the running of the 3°?,^ """Jj °P^g" 
 locomotives, or cars, or other machinery of such company, or for etc. 
 damage done by any person in the employment and service of such 
 company, unless the company shall make it appear that their 
 agents have exercised all ordinary and reasonable care and dili- 
 gence, the presumption in all cases being against the company.' 
 
 Sec. 2322. No person shall recover damage from a railroad com- Negligence. 
 pany for injury to himself or his property, where the same is done 
 by his consent, or is caused by his own negligence. If the com- 
 plainant and the agents of the company are both at fault, the for- Comparative 
 mermay recover, but the damages shall be diminished by the "^^iigence. 
 jury in proportion to the amount of default attributable to him. 
 
 Sec. 2323. If the person injured is himself an employee of thep('^|g^iJj|_^g°^'^.p® 
 company, and the damage was caused by another employee, and ants, 
 without fault or negligence on the part of the person injured, his 
 employment by the company shall be no bar to his recovery. 
 
 Sec. 2324 (as amended by act No. 102, page 63, Acts of 1896).iiawifty"o£ re- 
 The liability of receivers, trustees, assignees, and other like officers eei vers. 
 
60 BULLETIN OF THE BUREAU OE LABOR. 
 
 operating raih-oads in this State, or partially in tliis State, for 
 injuries and damages to persons in their employ, caused by the 
 negligence of coemployees, or for injuries or damages to personal 
 property, shall be the same as the liability now fixed by law gov- 
 erning the operation of railroad corporations In this State for like 
 injuries and damages, and a lien is hereby created on the gross in- 
 come of any such railroad while In the hands of any such receiver, 
 trustee, or assignee, or other persons in favor of such Injured em- 
 ployees or plaintiff, superior to all other liens against defendant 
 under the laws of this State. 
 
 Liahiliti/ of employers for injuries to employees. 
 
 ^Negligence Section 2610. Except in case of railroad companies, the master 
 ants.*^ °^ '^'''^" is Jtiot liable to one servant for injuries arising from the negligence 
 
 or misconduct of other servants about the same business, 
 plover^ "' ^'"' ^^^' 2611. The master is bound to exercise ordinary care in the 
 * ^'^ -' selection of servants, and not to retain them after knowledge of in- 
 competency ; he must use like care In furnishing machinery equal 
 in kind to that in general use, and reasonably safe for all per- 
 sons who operate it with ordinary care and diligence. If there 
 are latent defects in machinery, or dangers incident to an employ- 
 ment unknown to the servant, of which the master knows, or 
 ought to know, he must give the servant warning in respect thereto. 
 Assumption g^c. 2612. A servant assumes the ordinary risks of his employ- 
 risk. ment, and Is bound to exercise his own skill and diligence to pro- 
 
 tect himself. In suits for injuries arising from the negligence of 
 the master in failing to comply with the duties Imposed by the 
 preceding section. It must appear that the master knew or ought 
 to have known of the incompetency of the other servant, or of the 
 defects or danger in the machinery supplied ; and it must also ap- 
 pear that the servant Injured did not know and had not equal 
 means of knowing such fact, and by the exercise of ordinary care 
 could not have known thereof. 
 Contracts Sec. 2613. All contracts between master and servant, made in 
 waiving liabil- consideration of employment, whereby the master is exempted 
 '^' from liability to the servant arising-from the negligence of the 
 
 master or his servants, as such liability is now fixed by law, shall 
 be null and void, as against public policy. 
 Negligence Sec. 3030. The principal Is not liable to one agent for injuries 
 of feilow-serv- arising from the negligence or misconduct of other agents about 
 '^°*®- the same business; the exception In case of railroads has been 
 
 previously stated. 
 Degree of Sec. 3830. If the plaintiff by ordinary care could have avoided 
 care. the consequences to himself caused by the defendant's negligence, 
 
 he is not entitled to recover. But In other cases the defendant Is 
 not relieved, although the plaintiff may in some way have con- 
 tributed to the Injury sustained. 
 
 ILLINOIS. 
 
 [An act requiring threshing machines, cornshellers, or any 
 other machine driven by horsepower, to have the tumbling-rods or 
 shafting boxed, makes the owner who fails to comply with the 
 terms of the act liable In damages for injuries occasioned by such 
 noncompliance. Annotated Statutes of 1S96, chapter 70, section 4. 
 
 go also of the act regulating the working of coal mines. Acts of 
 ISftO, net, page 300, section 33. 
 
 The railroad safety appliance law of 1905 takes away the de- 
 funsos of assumed risks and of contributory negligence where an 
 employee Is injured because of the company's noncompliance with 
 the law, though the employee knew of it. Acts of 1905, act, page 
 350, section 9.] 
 
employees' liability in xhe united states. 61 
 
 INDIANA. 
 
 ANNOTATED STATUTES OP 1894— REVISION OF 1901. 
 
 Liability of employers for injuries to employees — Contributory 
 negligence to he matter of defense only. 
 
 Section 359a. Hereafter in all actions for damages brought on Actions for 
 account of the alleged negligence of any person, copartnership or injuries, etc. 
 corporation for causing personal injuries, or the death of auy per- 
 son, it shall not be necessary for the plaintiff in such action to 
 allege or prove the want of contributory negligence on the part of 
 the plaintiff, or on the part of the person for whose injury or death 
 the action may be brought. Contributory negligence, on the part Contributory 
 of the plaintiff, or such other person, shall be a matter of defense, t^osi'sence. 
 and such defense may be proved under the ansv/er of general 
 denial ; * * * 
 
 Contracts of employees loaiving right to damages. 
 
 Section T082a. All contracts between employer and employee Contracts 
 releasing the employer from liability for damages arising out of void. 
 the negligence of the employer by which the employee is injured, 
 or in case of the employee's death to his representatives, are against 
 public policy, and hereby declared null and void. 
 
 Sec. 7082b. All contracts between employer and employee releas- Third per- 
 ing third persons, copartnerships or corporations from liability for sons, 
 damages arising out of the negligence of such third persons, co- 
 partnerships or corporations by which the employee of such em- 
 ployer is injured, or in case of the death of such employee, to his 
 representatives, are against public policy and are hereby declared 
 null and void. 
 
 Sec. 7082c. All contracts between an employee and a third per- Contracts re- 
 son, copartnership or corporation in which it is agreed that the j?^^f°s from 
 employer of such employee shall be released from liability for dam- "'^bnity. 
 ages of such employee arising out of the negligence of the employer, 
 or in case of the death of such employee, to his representatives, are 
 against public policy and are hereby declared null and void : Pro- 
 vided, That nothing in this act shall apply to voluntary relief de- Insurance. 
 partments, or associations organized for the purpose of insuring 
 egiployees. Nothing in this act shall be construed to revert back 
 to contracts made prior to the passage of this act. 'Nor shall this 
 act affect pending litigation : Provided, That nothing in any sec- 
 tioa of this act shall be so construed as to affect or apply to any 
 contract or agreement that may be made between the employer and Contracts 
 employee, or in case of death, his next of kin or his representa- ^,j.^^ ^''*^'^ ''^" 
 tive after an injury to the employee has occurred, but the pro- 
 visions of this act shall apply solely to contracts made prior to any 
 injury. 
 
 LiaMlity of railroad companies, etc., for injuries to employees. 
 
 Section 7083. Every railroad or other corporation, except mu- injury caused 
 nicipal, operating in this- State, shall be liable for damages forby^ 
 personal injury suffered by any employee* while in its service, the 
 emploj'ee so injured being in the exercise of due care and dili- 
 gence, in the following cases : 
 
 First. When such injury is suffered by reason of any defect in Defects ; 
 the condition of ways, works, plant, tools and machinery con- 
 nected with or in use in the business of such corporation, when 
 such defect was the result of negligence on the part of the cor- 
 poration, or some person intrusted by it with the duty of keeping 
 such way, works, plant, tools or machinery in proper condition.. 
 
 Second. Where such injury resulted from the negligence of any Negligence 
 person in the service of such corporation, to whose order or direc-oJ ??^.*° ^"" 
 tion the injured employee at the time of the injury was bound to ""'y'' 
 conform, and did conform. 
 
 30649— Bull. 74—08 5 
 
'62 Bulletin- oS' the BufiteAu de labOk. 
 
 Obedience Third. Where such iujury resulted from the act or omission of 
 to rules ; ^^^ person done or made in obedience to any rule, regulation or 
 
 by-law of such coriporatioti, or in obediehcfe 'tB the particular in- 
 structions given by any person delegated with the authority of the 
 corporation in that behalf. 
 Negligence Fourth. Whete such injury was caused by th^ b^ligence of any 
 cUarge"^ oT raif- Person In the service of such corporation who has charge of any 
 road signal, etc. signal, telegfajih 'offlice, switch yard, shop, ■ro'undhoiise, locomotive 
 engine or triain upOh a, railway, or where such iujiiry Was caused 
 by the negligence of any person, coettit)l'oyee ot f sUow-servaht en- 
 gaged in the same Common service In any of the several depiart- 
 taents of the service of any such corporation, the said person, co- 
 employee or fellow-servant, at the time acting in the place, and 
 performing the duty of the corporation in that b'ehalf, and the 
 person so injured, obeying or confbrmihg t<) the order of some su- 
 perior at the time of sUCh injury, hstvihg authority to direct; but 
 nothing herein shall be construed to abridge the liability of the 
 corporation under existing laws. 
 dami^P^"'''' °' ^^°- ™^^- '^^^ daiiid^efe recoverable under this act, shall be 
 s ^- commensurate with the injury sustained unless death results from 
 
 such injury, when, in such case, the action shall survive and be 
 governed in all respects by the law now in force as to such ac- 
 tions : Provided, That where any such person recovers a jijdgment 
 against a railroad or other corporation, and such corporation takes 
 an appeal, and, pending such appeal, the injured person dies, and 
 the judgment rendered in the court below be thereafter reversed, 
 the right of action of such person shall survive to his legal repre- 
 sentative. 
 
 wafvfnVriehtq ^^'^' '^'^^'^' ^^^ Contracts made byrajlroads or other corporations 
 w V g g ts. ^^,j^]^ ^jgjj. employees, or rules or regulations adopted by any cor- 
 poration releasing or relieving it from liability to any employee 
 having a right of action under the provisions of this act are hereby 
 declared null and void. The provisions of this act however shall 
 not apply to any injuries sustained before it takes effect, nor shall 
 it affect In any manner any suit or legal proceedings ijending at 
 the time it takes effect. 
 
 \A provision of the act i-equiring steam railroads to be equipped 
 with switch lights mates 'a cohip&ny violating or failing to com- 
 ply with the raw liable to all pei'sons and employees injured by 
 reiason of noncompliance, aad takes away the defense of assump- 
 tion of risk. .Section 5173c. 
 
 A similar provision iappears in a statute dltecting the equip- 
 ment of f'alll'oad locoiiiotiVes with engine brakes, the use of au- 
 toraatic couplers, iand the placing Of gi-ab li"ons on cars. Acts of 
 1903, chapter 120. 
 
 So also Of the safety appliance law of 1907. Acts of 1907,. 
 chapter 118; and the act regulating hours of labor of railroad 
 employees. Acts of 1907, chapter 131. 
 
 The statute requiring fire escapes to be placed on factories, etc., 
 makes owners who fail to comply with its terms liable in damages 
 jfor the personal injury or death of any person occasioned by 
 fire in a building not provided with iBi-e escapes. Acts of 1903, 
 chapter 222. 
 
 The statute regulating the working of coal mines gives a right 
 of action against the operator of a mine for injuries occasioned 
 by any violation of the act, or willful failure to comply with its 
 pro\isions. Acts of 1005, chapter 50.] 
 
 lOWA. 
 
 CODE OF 1897 AND SUrPLEMENT OF 1002. 
 
 IJahiltty of railroad c07tipames far injuries to employees. 
 
 Injuries Section 2071. Every corporation operating a railway stol be 
 
 caused by liable for all damages sustained by any person, including eui- 
 
 negligeuce. pioyees of such corporation. In consequence of the neglect of the 
 
 agents, or by any mismanagement of the engineers or other em- 
 
employers' 'LiA.MhfiY m iPiE trMfBD states. 63 
 
 ■ployeeB '■tliei'eoi, and in cotisecftience of the v/illf ul 'i;\?'rb)igs, 'wlietlifer 
 
 of ■eoiiimfesiOii tti- omission, of such agents, '^giheers Or other 
 
 employees, Vb&i "such wrongs Hrfe lix fay manner -confiected with 
 
 the use and operation of any raliWay on or about 1\'hich they shall (.^"h^'^u'V?" 
 
 iae employed, and no contract which restricts such llahility shall fty 
 
 toe l€*gal or hihding. 
 
 i^ot Bhall ahy cohtract of insurance, telief , benefit, or indemnity . Contracts of 
 in 'case of Ihjury or "death, eiitered Into prior to the injury, be- '"^surance, etc. 
 twfeen the person S6 injured and such coirporation, or any other 
 persoh or assOc^iation actitlg for such corpotation, nor shall the 
 acceptance of any such ihgtrahce, relief, benefit, or indemnity by 
 the person injured, his widow, heirs, or legal representatives after 
 the mjxtfy, from stic!h corporation, person, 01 association, constl- 
 'ttite'ahy bar or defense to any caiitse of action brought under the 
 'provisions Of 'this 'section, but hothttsg contained herein shall he 
 cohstrued 'to prevent o'r invalidate any settlefflent for danfages 
 he'tW^n the parties 'sifbSfequent to injuries received. 
 
 [¥he statate directing the use of power brakes and , automatic 
 'couplers on railroad trains abrogates the deifense of assumed 
 ri^ks in csises of injury to employees occasioned by failure to 
 comply with the law. Section ^OSS. 
 
 'Failure to conform with the requirements of the law regulating 
 the working of mines is declared to be culpable negligence in cases 
 of hijury resiilting therefrom. Section 219'2.] 
 
 ACTS OF 1907. 
 
 Chaptek 181. — Liahiliiy of cmplo-j/ers for injui-ies to employees — 
 Assumption of rislx. 
 
 ■Section 1. In all cases where the property, works, machinery Notice by 
 or appliances of an employer are defective or out of repair and the ^""^ °^'^' 
 employee has knowledge thereof, aiid has given written notice to 
 the employer, Or to any person authorized to receive and accept 
 such notice, or to any person in the service of the employer and 
 Intrusted by him with the duty of seeing that the property, works, 
 machinery or appliances are in proper condition, of the particular 
 defect or want of repair or when the 'einplo'yer Or such other per- 
 son has been notified in writing of such defect or want of repair 
 by any perscn whose duty it is under the rules of the employer or 
 the laws of the State to inspect such works, machinery or ap- 
 pliances, or any person who is subject to the risk incident to 
 such detect or'want of repair'; ho employee after such notice, shall g^^g^^*^ ''°* ^^' 
 by reason of remaining in the employment with such knowledge, ' 
 
 'be deemed to have assumed the risli incident to the danger aris- 
 ing from such defect or want of repair. 
 
 KANSAS. 
 
 GENERAL STA'TUTES OF 1901. 
 
 Liatility of railroad convpanies for injuries to employees. 
 
 Section 585S (as amended by chapter 281, Acts of 1907). 1. Negligence of 
 Every rallroa^ company organized or doing business in the State pf^yglg^"'^ '^'"' 
 of Kansas shall be liable for all damages done to any employee of 
 said company in consequence of any negligence of its agents, or by 
 any mismanagement of its engineers or other employees, to any 
 person sustaining such damage : Provided, That notice in writing 
 that an injury has been sustained, stating the time and place 
 thereof, shall have been given by or on behalf of 'the person injured 
 to such railroad company within eight months after the occurrence 
 of the injury : Provided, however. That where an action is com- 
 raenoed by the injured iperson within said eight months, it shall not 
 •be necessary to give said notice: And provided further. That 
 Where any person injured is in the hospital of or under the Charge 
 
64 
 
 BULLETIN OF THE BUEEAU OF LABOE. 
 
 notice. 
 
 of the railroad company causing the injury, or is prevented by the 
 effects of said injury, the said eight months shall not begin to run 
 until such injured person is discharged from said hospital or 
 care of said railroad company or until such disability be re- 
 moved : Provided further, That in case said injured person shall 
 die, as a result of said Injuries, within said eight months, it shall 
 not be necessary to give said notice : Provided further, That said 
 notice need not state whether or not suit is intended to be brought. 
 S service of 2. The service mentioned in section 1 hereof may be served by a 
 written copy thereof, by the person Injured or any one on his be- 
 half, upon any person designated by the railroad in any county in 
 which the action might be brought, as provided in section 4499 
 of the General Statutes of Kansas of 1001, or if no such person has 
 been designated or appointed, as in said section provided, then 
 upon any local superintendent of affairs, freight agent, agent to 
 sell tickets or station keeper of such company or corporation in 
 such county, or such service may be made by leaving a copy 
 thereof at any depot or station of such company or corporation 
 in such county, with the person In charge thereof or in the employ 
 of such company or corporation, and such service shall be held 
 and deemed complete and effectual. Proof of such service shall 
 be made by 'the affidavit of the party making the same, or other 
 persons knowing the facts. 
 
 [The statute requiring the installation of fire escapes on fac- 
 tories, and of safety devices in manufacturing establishments, 
 authorizes an action for Injuries or death resulting from disre- 
 gard by the employer of the provisions of the act. Acts of 1903, 
 chapter 356.] 
 
 KESTTTJCKY. 
 
 [An act regulating the construction of railroad bridges and tun- 
 nels, and directing the use of air brakes on railroad trains and 
 the blocking of frogs at switches, makes the company liable for 
 injuries resulting from a failure or neglect to comply with the 
 provisions of the law. Statutes of 1903, section 793.] 
 
 LOUISIANA. 
 
 REVISED CIVIL CODE— EDITION OF 1887. 
 
 Liahllity of ciiiploi/crs for injuries to employees. 
 
 Negligence. ARTICLE 2316. Every person is responsible for the damage he 
 occasions not merely by his act, but by his negligence, his im- 
 prudence, or his want of skill. 
 
 Aet. 2317. We are responsible, not only for the damage occa- 
 sioned by our own act, but for that which is caused by the act 
 of persons for whom we are answerable, or of the things which 
 we have in our custody. * * * 
 °^ Abt. 2320. Masters and employers are answerable for the dam- 
 age occasioned by their servants and overseers, in the exercise 
 of the functions in which they are employed. 
 
 Teachers and artisans are answerable for the damage caused 
 by their scholars or apprentices, while under their superintendence. 
 
 In the above cases, responsibility only attaches, when the mas- 
 ters or employers, teachers and artisans, might have prevented 
 the act which caused the damages, and have not done it. 
 
 Acts of em 
 ployees, etc. 
 
 Liability 
 employers. 
 
 MARYLAND. 
 PUBLIC LOCAL LAWS— CODE OF 1S8S. 
 
 Article 1. — Liahility of operators, etc., of mines for injuries to 
 
 employees. 
 
 Law applies Section 195a (added by chapter 412, Acts of 1902), Any cor- 
 
 to wiiom. poratiou, partnership, association, individual, individuals, engaged 
 
 in the business of owning or conducting any coal mines, clay 
 
employers' liability in the united states. 65 
 
 mines in Allegany or Garrett comities, whetlier sucli. owner oi'^.j^'benefit''^ 
 owners, operator or operators be residents of tbe State of Mary- 
 land or not, employing persons in the operation of mining coal or 
 clay, shall be liable iu law to any employee engaged in such occu- 
 pation or to his legal representatives, in case of death, for the j^egiigence. 
 damage arising and flowing from any injury received by said 
 employee through the negligence of said owner or operator or 
 from the negligence of any agent or agents, employee or em- g,,^ j.,^g 
 ployees, and if the negligence causing suchjnjury be found to negligence, 
 consist of the joint or collective negligence of both the employer, 
 hi3 agent or agents, employee or employees, on the one hand, and 
 of the negligence of the injured employee on the other hand, then 
 it shall be the duty of the jury, or of the court sitting as a jury, 
 to determine and ascertain as near as may be the proportion of 
 such negligence of which each has been guilty, and having ascer- 
 tained and determined such proportions of negligence causing the 
 injury, it shall be the duty of the jury, or of the court sitting as a 
 jury, to apportion the damages arising from said injury In like 
 proportion or degree and award to the plaintiff or plaintiffs the 
 proportion of damages suffered which it shall have been deter- 
 mined was the proportion of the defendant or defendants' negli- 
 gence contributing to the injury complained of. 
 
 [The statute regulating the operators of mines in Allegany and 
 Garrett counties makes owners or operators who fail to comply 
 therewith liable in damages for Injury or death occasioned by such 
 failure. Article 1 (revision of 1902), section 209n.] 
 
 MASSACHUSETTS. 
 
 REVISED LAWS OF 1902. 
 
 Chameb 106. — Contracts of employees loaiving light to damages. 
 
 SECTioisr 16. No person shall, by a special contract with his em- Contracts 
 ployees, exempt himself from liability which he may be under to^orbWden. 
 them for injuries suffered by them in their employment and re- 
 sulting from the negligence of the employer or of a person in his 
 employ. 
 
 Chapteb 106. — Liability of employers for injuries to employees. 
 
 Section 71. If personal injury is caused to an employee, who, injury caased 
 at the time of the injury, is in the exercise of due care, by reason ify — 
 of: 
 
 First, A defect in the condition of the ways, works or machinery Defects • 
 connected with or used in the business of the employer, which ^ ' 
 
 arose from, or had not been discovered or remedied in consequence 
 of, the negligence of the employer or of a person in his service 
 who had been intrusted by him with the duty of seeing that the 
 ways, works or machinery were iu proper condition ; or, 
 
 Second, The negligence of a person in the service of the em- Negligence of 
 ployer who was intrusted with and was exercising superintend- superintend- 
 ence and whose sole or principal duty was that of superintendence, e°t ; 
 or, in the absence of such superintendent, of a person acting as 
 superintendent with the authority or consent of such employer ; or, 
 
 Third, The negligence of a person iu the service of the employer „ 
 who was in charge or control of a signal, switch, locomotive engine charge^of'^rai^ 
 or train upon a railroad; road signal, etc. 
 
 The employee, or his legal representatives, shall, subject te the status of em- 
 provisions of the eight following sections, have the same rights ployee. 
 to compensation and of action against the employer as if he had 
 not been an employee, nor in the service, nor engaged in the work, 
 of the employer. 
 
 A car which is in use by, or which is in possession of, a railroad Definitions, 
 corporation shall be considered as a part of the ways, v,rorks or 
 machinery of the corporation which uses or has it in possession, 
 within the meaning of clause, one of this section, whether it is 
 owned by such corporation or by some other company or person. 
 
66 
 
 BULLETIK OF THK BtTEBA'U OF LABOH. 
 
 death. 
 
 One or more cars whicli are in motion, whether attached to an en- 
 gine or not, shall constitute a train within fhe meaniug o^ clattse 
 three of this section, and whoever, as a part of his dtrty for the 
 titne ■being, physically Controls or directs the movemfeats of a sig- 
 nal, switch, locomotive engine or train shall be deemed lo be a 
 person in charge or control of a signal, switch, locomotive engine 
 or train within the meaning of said clause. 
 Action for in- Sec. 72 (as amended by chapter -370, Acts of 1906). If the 
 
 jury anfl dfeath. injury described in the pTeeeding section results in the death 'of 
 the employee, and such d«ath is not instantaneous or is preceded 
 by conscious suffering, and if there is any person who would have 
 been entitled to bring an action under the provisions of the fol- 
 lowing section, the legal representatiTes of said employee may, in 
 the action brought under the provisions of the preceding sectidu, 
 recover damages for the death in addition to those for the injury; 
 find in the same aCtiOh under a separa^te count at common law, 
 may recover damages 'for conscious suffering resulting from the 
 sanie injury. 
 Action for Sec. 73. If, as the result Of negligence of an employer htinself, 
 or of a person for whose negligence an employer is liable under 
 the provisions of section seventy-one, an employee Is instantly 
 killed, or dies without conscious suffering, Tils widow or, if he 
 leaves no widow, his next of kin, who, at tlie time of his death, 
 were dependent upon his wages for support, shall have a right 
 , of action for damages against the employer. i 
 
 Degree of gjj.c_ 74, xt, under the provisions of either of the two preced- 
 
 sidM-fa."*'^ *^°° iiS sections, damages are awarded for the death, they shall be 
 assessed with reference to the degree of culpability of the em- 
 ployer or of the person for whose negligence the employer is 
 liable. 
 Limit of dam- The amount of damages Which may be awarded in an action 
 
 "=^^" under the provisions of section seventy-one for a personal injury 
 
 to ah employee, In which no damages for his death are awarded 
 under the provisions of section seventy-two, shall not exceed 
 four thousand dollars. 
 
 The amount of damages which may be awarded in such action. 
 If damages for his death are awarded under the provisions of 
 section seventy-two, shall not exceed five thousand dollars for 
 both the injury and the death, and shall be apportioned by the 
 jury between the legal representatives of the employee and the 
 persons who would have been entitled, under the provisions of 
 section sevetfty-three, to bring an action for lis death if it had 
 been instantaneous or without conscious suffering. 
 
 The amount of damages which may be awarded in an action 
 brought under the provisions of section seventy-three shall not 
 be less than five hundred nor more than five thousand dollars. 
 Notice. Sec. 75. No action for the recovery of damages for injury or 
 
 death under the provisions of sections seventy-one to seventy- 
 Limitation, four, inclusive, shall be maintained unless notice of the time, 
 place and cause of the injury Is giVen to the employeir within sixty 
 days, and the action is commenced within one year, after the 
 accident which caused the injury or death. Such notice shall be 
 In writing, signed by the person injured or by a person in his 
 ■behalf ; but if from physical or mental incapacity it is Impossible 
 for the person injured to give the notice within the time provided 
 in this section, he may give It within ten days after such incapac- 
 ity has been removed, and if he dies Without having given the 
 notice and without having been for ten days at any time after 
 his- injury of sufficient capacity to give it, his executor or admin- 
 istrator may give Such notice within sixty days after his appoint- 
 ment. A notice given under the provisions of this section shall 
 not be held invalid or insufficient solely by reason of an inaccu- 
 racy in stating the time, place or cause of the Injury, if it is 
 slidwn that there was no intention to mislead, and that the 
 employer was not in fact misled thereby. The provisions of sec- 
 tion twenty-two of chapter fifty-one shall apply to notices imder 
 the provisions of this section. 
 
embeOyers' liabSltty m the united states, 67 
 
 Sec. 76. If an employer enters lirto a contract, written or verbal, Employees of 
 with au independent contractor to do, part of sucli employer's g°beontractore 
 work, or if such contractor enters into a contract with a sub- 
 contractor to do all or any part of the work comprised in such 
 contractor's contract with the 'einployer, stich contract or sub- 
 contract stall not bar the liability of the employer for injuries 
 to the employees of such contractor or subcontractor, caused by 
 'any de'fect in the condition of the wayfe, works, ihachinery or 
 l)lant, if they are ^thc pr6pei-ty of the 'emi)loj'ei' 6r a'l'e furnished 
 hy him and if Slleh defect arose, or had not teen discovered or 
 'I'em'edted, thi'otigh the negligence Of the employer or of s6me pfer- 
 sbh intr"nSted by him with the duty of seeing that 'they were in 
 l>ropev Condition. 
 
 gfec. T7. Abl einpliyee 'or his legAl I'e^irtesenf atives shall not be ^ ^t'^r eTo veT 
 'entitled UhdA" the provisions of -sections Seyenty-ohe to SeVfehty- when. ' 
 
 four, incl'u^ive, to any right of a'ctioii for damages against his 
 einployer if "stich effi|)16yee toew 'of the defect or negligence which 
 caused the inj'tfry, 'aba failed wlthih a reasonable time to give, or 
 catse to Be given, information thereof to the employer, or to some 
 peTgaii superioV to Winself in the service of the employer whii was 
 mti'uSt^a 'with general supetintendence. 
 
 Stsc. 78. An -empldyer who ^liaH hare cOnfrtbuted to kn iiisur- Employer cqn- 
 ance fund created' and iria'fntaitfed for "the rif-uttial ptn-pose 6f ri- gu^a'nce^fimd °" 
 dcmnifyitig an employee for personal injuries for 'which Compen- 
 sation may be 'recovered under the provisions 'of Sections Seventy- 
 one te Seventy-fotir, inclusive, or to any relief s6ciety formed un- 
 der the provisions of sectiOfls "seventeen, eighteen and nineteen of 
 chapter one hundred 'and tw'enty-five, Daay pi'ove in mitrgation of 
 the datea^eS 'recoverable hy ah employee 'n'nder the provi'sidns Of 
 Said 'Sectlo'ns, 'Stich proportion of the pecuniary benefit which has 
 'heen received Vj such employee from any such fund or society on 
 account of such contribution of Bald employer, as the ContTibittiOn 
 of such employer to such fund or society bears to the whole con- 
 tribution thereto. 
 
 Sec. 79. The provisions of the eight preceding sections shall not Exemptions, 
 apply to Injuries caused to domestic servants or' farm laborers by 
 fellow-employees. 
 
 [The law regnlating the construction of buliaings to Td6 used as 
 factories, etc., and their equipment with -ffi-e 'e'scapes and fire ek- 
 tini^ui'SherS, 'mateS negligent 'dwnei-s, les'Sees, or Occnpahts liable 
 to any person injufM for all damages caused bv violatidn Of its 
 provisions. Chapter 104, section 50. 
 
 The act directing the 'Installation and use of safety -'appliances 
 on railroads takes away from the negligent company the defense 
 'of asstimed risks in cases of injury resulting frOm violations of 
 the act, even though 'the injured erhployee knew of the violation. 
 Chapter 111, section 2(3&.] 
 
 MlkwESbTA. 
 
 REVISBD I.A'Wg— 1905. 
 
 'LinWitii of railroad compa'nies for mjvries to empJot/ccs. 
 
 SECTioN 20-i2. Every 'company owning or operating, as a com- Acts of fel- 
 mon carrier or othe'rwise, a railroad, sUall Be liable for all dam- low-sei-vants. 
 ages ■snstai'ned within this State by any agoiit or servant thereof, 
 'without contributory negligence on his part, by reason of tie 
 neghgehee of ahy Otlier servant thereof, and no contract, nor any 
 rule or regulation of such company, shall impair or limit such 
 liability. But 'this section Shall not be so construed as to render 
 any railroad company liable 'for damages .suStatried by any Such 
 agent 'or 'servant -while engaged In tlie cd-hstruction of a new 'road, 
 Or any part thereof, not open to public travel or use. 
 
68 
 
 BULLETIN OF THE BUREAU OF LABOR. 
 
 MISSISSIPPI. 
 CONSTITUTION. 
 
 Article 7. 
 
 -Liability of railroad cotnimnles for 
 employees. 
 
 juries to 
 
 Nrgiigenco of SECTION 193. Every employee of any railroad corporation shall 
 superiors ; have the same right and remedies for any injuries suffered by 
 him from the act or omission of said corporation or its em- 
 ployees, as are allowed by law to other persons not employees, 
 where the injury results from the negligence of a superior agent 
 or officer, or of a person having the right to control or direct the 
 services of the party injured, and also when the injury results 
 Of fellow- from the negligence of a fellow-servant engaged in another de- 
 servants, partment of labor from that of the party injured, or of a fellow- 
 servant on another train of cars, or one engaged about a different 
 piece of worl;:. Knowledge by any employee Injured, of the defect- ' 
 ive or unsafe character or condition of any machinery, ways, or 
 appliances, shall be no defense to an action for injury caused 
 thereby, except as to conductors or engineers in charge of dan- 
 gerous or unsafe cars, or engines voluntarily operated by them. 
 Death. Where death ensues from any injury to employees, the legal or 
 personal representatives of the person injured shall have the same 
 right and remedies as are allowed by law to such representatives 
 Con^tractsof other persons. Any contract or agreement, express or implied, 
 fifs7'°^ made by any employee to waive the benefit of this section shall 
 be null and void ; and this section shall not be construed to de- 
 prive any employee of a corporation or his legal or personal repre- 
 sentative, of any right or remedy that he now has by the law of 
 the land. The legislature may extend the remedies herein pro- 
 vided for to any other class of employees. 
 
 CODE OF 1006. 
 Liability of railroad companies for injuries to employees. 
 
 Evidence. SECTION 19S5. In all actions against railroad companies for 
 
 damages done to persons or property, proof of injuiy inflicted by 
 the running of the locomotives or cars of such company shall be 
 prima facie evidence of the want of reasonable sliill and care on 
 the part of the servants of the company in reference to such in- 
 jury. This section shall also apply to passengers and employees 
 of railroad companies, 
 of su- Sec. 4056. Every employee of a railroad corporation shall have 
 the same rights and remedies for an injury suffered by him from 
 the act or omission of the corporation or its employees as are 
 allowed by law to other persons not employees, where the injury 
 results from the negligence of a superior agent or ofiicer, or of a 
 person having the right to control or direct the services of the 
 party injured, and also when the injury results from the negli- 
 gence of a fellow-servant engaged in another department of labor 
 from that of the party injured, or of a fellow-servant on another 
 train of cars, or one engaged about a different piece of work. 
 Knowledge by an employee injured of the defective or unsafe 
 character or condition of any machinery, ways, or appliances, or 
 of the Improper loading of cars, shall not be a defense to an action 
 for injury caused thereby, except as to conductors or engineers in 
 charge of dangerous or unsafe cars or engines voluntarily oper- 
 
 Death. ated by them. When death ensues from an injury to an employee 
 
 an action may be brought in the name of the widow of such em- 
 ployee for the death of the husband, or by the husband for the 
 death of his wife, or by [for] the death of a child, or in the name 
 of the child for the death of an only parent, for such damages as 
 may be suffered by them respectively by reason of such death, the 
 damages to be for the use of such widow, husband, or child, ex- 
 
 Acts 
 periors ; 
 
 Of fellow 
 servanta. 
 
employees' liability in the united states. 69 
 
 cept that iu case the widow should have children, the damages 
 shall be distributed as personal property qf the husband. The 
 legal or personal representative of the person injured shall have 
 the same rights and remedies as are allowed by law to such repre- 
 sentatives of other persons. Iu every such action the jury may 
 give such damages as shall be fair and just, with reference to the 
 injury resulting from such death to the person suing. Any con- Waiver, 
 tract or agreement, expressed or implied, made by an employee to 
 waive the benefit of this section shall be null and void ; and this 
 section shall not deprive an employee of a person, natural or artifi- 
 cial, or the legal or personal representatives of such person, of any 
 right or remedy they now have by law. 
 
 [A statute that requires telltales or warning strings to be placed 
 over railroad tracks at approaches to overhead bridges or other 
 overhanging objects makes negligent companies liable for the 
 injury or death of a person caused by striking such bridge, etc., 
 even though the person so killed or injured was guilty of contribu- 
 tory negligence. Section 4051.] 
 
 HISSOTJEI. 
 
 EEVISBD STATUTES OF 1899. 
 Liability of railroad companies for injuries io employees. 
 
 Section 2873. Every railroad corporation owning or operating Negligence of 
 a railroad in this State shall be liable for all damages sustained feiiow-serv- 
 by any agent or servant thereof while engaged in the work of oper- 
 ating such railroad by reason of the negligence of any other agent 
 or servant thereof: Provided, That it may be shown in defense r 
 that the person injured was guilty of negligence contributing as a 
 proximate cause to produce the Injury. 
 
 Sec. 2874. All persons engaged in the service of any such rail- Vice-priuci- 
 road corporation doing business in this State, who are intrusted P^^s defined, 
 by such corporation with the authority of superintendence, control, 
 or command of other persons In the employ or service of such cor- 
 poration, or with the authority to direct any other servant in the 
 performance of any duty of such servant, or with the duty of in- 
 spection or other duty owing by the master to the servant, are 
 vice-principals of such corporation, and are not fellow-servants 
 with such employees. 
 
 Sec. 2875. All persons who are engaged in the common service Fellow - serv- 
 of such railroad corporation, and who while so engaged, are work- ants defined, 
 ing together at the same time and place, to a common purpose of 
 same grade, neither of such persons being intrusted by such cor< 
 poration with any superintendence or control over their fellow- 
 employees, are fellow-servants with each other : Provided, That 
 nothing herein contained shall be so construed as to make any 
 agent or servant of such corporation in the service 'of such corpo- 
 ration a fellow-servant with any other agent or servant of such 
 corporation engaged in any other department or service of such 
 corporation. 
 
 Sec. 2876. -No contract made between any railroad corporation Contracts 
 and any of its agents or servants, based upon the contingency of limiting liabii- 
 the injury or death of any agent or servant, limiting the liability "y- 
 of such railroad corporation for any damages under the provisions 
 of this act, shall be valid or binding, but all such contracts or 
 agreements shall be null and void. 
 
 Sec. 2876a (added by act, page 138, Acts of 1905). Whenever Definitions, 
 the words " railroad companies " or " railroad corporation " shall 
 be found in any section of this chapter it shall be taken and con- 
 strued to include all companies, corporations, person or persons 
 operating any railroad in this State, and wherever the word " rail- 
 road " occurs in any section in this chapter it shall be taken and 
 construed to Include all railroads operated In this State by what- 
 ever motive or power propelled, and shall include all railroads or 
 
70 BULLETIN OF THE 'staREA.TJ OF LX'B6tl. 
 
 Tailwayg, commonly Known as street railways, aiid al'l raiTrdafds 
 dper!;ited by termiiial conjpanies 6r asspc'iatio'tfs, lifldWn "as "fer- 
 minal railroajis " "6r " railways " as Well a's all railway'^ cir rail- 
 roafls OJierated anywhere in the State, 'coinmdiily lirioVti aS electric 
 railroadis, wbether tliey'be whdHy or in part in the city or country 
 districts. Also all railroads witliin tlie Co'untry or city operated 
 'by What is commonly known as dable or irio'tor power, or by horse 
 power. 
 
 ACTS OF 1907. 
 
 LlaWity of mine operators for injury to ettipldyees. 
 (Page 251.) 
 
 Acts of fel- Section 1. Every person, -company or corporation operating a 
 
 low-servants, mine , or mines in this State, producing lead, zinc, coal or otlier 
 valuable minerals, shall be liable for all daniages, sustained by 
 any agent or. servant thereof while engaged in operating such mine 
 or mines, by reason of the negligence of any other agent or servant 
 thereof: Provided, That it may be shown in defense that the per- 
 son injured was gulltj' of negligence contributing as a proximate 
 cause to produce the 'Injtir^. 
 Vice-princi- Sec. 2. All persons engaged ip the service of any such person, 
 
 P"-'^- company or ddrjlorhtioli 'dding business in this State, who are ' 
 
 intrusted by. such, person, company or corporation with the author- 
 ity of superintendence, control or commaTid of other pefsbns in 
 the employ Br service of such person, company or cdrpo'ration, or 
 with, kuthority to direct any other servaii't "in the 'peWdrrnahce of 
 any dirty of such 'servant, or with the duty of inspection or other 
 drity owln^ by the master to the servant, are vice-principals of 
 such person, company or corporatidn, and are riot fellow-servants 
 with such employees. , . ' 
 
 Fello^'-sei'v- Sec. 3. All persons wlio are engaged in the common service of 
 
 ^" ®' such person, comiiany or corporation operating a mine or mines, 
 
 and while so engaged are working together at the same time arid 
 place to a common pu'rpdse of the ■ samfe grade, netther Of such 
 llersons being fnti'usted by 'such person, company or 'corporation 
 'with any suj>etintendence or control 'over their felldw-employees, 
 are fello'W-sen-a'rits w'ith each other. 
 Contract's Sec. 4. NO cdri'tracts made between any person, epmpariy or cdr- 
 
 limiting llabil- poration so operating such mine or mines and their agents or 
 servants, brfsed "upon the contingency ot the 'injury dr death to 
 any such agent or servant, limiting the liability of the employer 
 for any damages imder the provisions of this act, Shall Be, valid 
 or binding, but all such contracts or agreeriients shall be null and 
 void. 
 Application Sec. 4a. Nothing in this aCt'shall be so construed as applyingto 
 ''• or incliTdirig, the operation, cdnstrtictidri or repairing of concen- 
 
 trating mills, flumes or tramways Wholly above ground. 
 
 [The law regulating the working of riiines provides that a right 
 of action shall accrue to persons injured or to the .heirs or de- 
 pendents of persons killed because of a. failure of the owner or 
 operator to comply with its 'provisions. Eevised Statutes, section 
 S8.20. 
 
 leaves requiring "railroad comitanies to block switches, f rdgs, and 
 guard rails, and also to provide autOrnatic couplers, drive-Wheel 
 power brakes, and safety appliances on railroad traifts tahe away 
 from companies fa,lling to comply witt such laws the defense 
 of contributory negligence in actions fOr damages where the em- 
 ployee is Injured by thp company's neglect in thfese .particulars, 
 in the latter law also the employee shall hot be deemed 'to have 
 assumed the risks occasldned by the com'pariy's neglect. XdtS of 
 1007, act, page ISl; act, page 1"S2.] 
 
EMPiib^lls' LIABILITY I-N THE TINITTiD STATES. 71 
 
 BtOBfTANA. 
 
 CONSTITUTION. 
 
 'AettcijE 15. — Oontracts of employees toaiving riglii to damages. 
 
 Section 16. It shall be unlawful for anj^ person, comiiauy or cor- C q n tracts 
 poration to req^iire of its servants or employee^, as a condition of jj-y '''"^ iiabii- 
 their employment or otherwise, any contract or agreement, 
 wliereby siKdi persona, company or corporatioti, shall fte released 
 or ^isc'liarged from liability or responsibility on accouBt of per- 
 sonal injuries received by such sen'ants or employees while in 
 the service of such person. Company or corporation, by reason of 
 •the negligence of slich , person, compaaiy or corporation, or the 
 agents or employees thereof; and sHCh contracts shall be abso- 
 lutely null and void. 
 
 CODES AND STATUTES— 1S95. 
 
 Civil Code. 
 
 Contracts of employees tcaiving right to damages. 
 
 Section 2242. Aiay contract or ^'greelneftt entered into hy any Contracta ia- 
 persou, company or corporation, -^ith its servants or employees, valid, 
 whereby such person, company or corj)oration shall be released or 
 ^iscliai-ged from liability or responsi'bility on account of personal 
 injTiries feceivM by smclk servants or employees while in thfe serv- 
 ice of such person, coinpa^hy or Corporation, by reason of the negli- 
 'gence <5f srich person, Company or corporation, or the agerits or 
 ■employees thereof, shall -be 'absolutely hull and Void. 
 
 ■Liability of employers for injuries to employees. 
 
 ■ Section 2666. Ah employer mU^ inderimify his employee, ex- Employees to 
 cept as prescribed ih the next section, for all that he necessarily ^y\™'^®^°'^^''' 
 'expends or loses in direct cOnseqitence of the discharge Of his 
 duties as such, or of his obedience to the directions of the em- 
 ployer, even though ilnlawful, unless the employee, at the time of 
 obeying sHich directions, believed them to be WnlaWful. 
 
 Sec Seel. Ah -employer i^s not hoimd to indenmify his employee Ordinary 
 for losses suffered hy the latter in cdnseotuence of the otdinaty '''sks. . 
 ■riBKs of the business in which lie is etnjployed. 
 
 ■Sec 2662. JAn employer must in -^U cases indemnify his em- Want of care, 
 ■ployee for losses Caused by 'the former's want of ordinal-y cai'e. 
 
 ACTS OF 1905. 
 
 ^CHAPtEli 1. — lAahili^ii 'Of rOAlroad companies for injiiries to em' 
 
 ployees. 
 
 Section 1. Every person or corporation operating a railway or Acts of fel- 
 railroad m this State shall he liahle fot all damages sustained by '"w-servants. 
 any employee of sucli person or corporation in consequence of 
 the neglect of any other employee Or employees thereof, or by the 
 mlsmahagemeht of any other employee ol- employees thereof, and 
 In conseq-uence of the willftil wrongte, ■vvhether of commission or 
 omission, of any other employee or employees thereof, ■when such 
 neglect, ■mismaitagement or wtongs, are iii any manner connected 
 "with the use and operation of any railtvay o-r railroad On 'or 
 about ■which they -shall be employed, and ho co^ntract whicli "te- 
 ■Btriets such liability shall be legal or binding. 
 
 S-EO. 2. In case of the death of any such employee in consequence Deatli. 
 of any injury or damage so sustained, the right of action shall 
 survive and may be prosecuted and maintained by his heirs or 
 personal representatives. 
 
72 BULLETIN OF THE BUEEAU OF LABOE. 
 
 Chapteb 23. — LiaVility of employers for Injuries to employees. 
 
 Acts of su- Section 1. Every company, corporation, or individual operating 
 perintendents, any mine, smelter, or mill for the refining of ores shall be liable 
 etc. foi- any damages sustained by any employees thereof within this 
 
 State, without contributing negligence on his part, when such 
 damage is caused by the negligence of any superintendent, fore- 
 man, shift boss, hoisting, or other engineer, or crane men. 
 Contracts not Sec. 2. No contract of insurance, relief, benefit, or indemnity In 
 a liar. case Of injury or death, nor any other contract entered into be- 
 
 fore the injury, between the person injured and any of the em- 
 ployers named in this act shall constitute any bar or defense to 
 any cause or action brought under the provision of this act. 
 Death. ^^^- ^- ^'^ ^^^^ °^ ^^^ death of any such employees in conse- 
 
 quence of any injury or damages so sustained, the right of action 
 shall survive and may be prosecuted and maintained by its heirs, 
 or personal representatives. 
 
 HEBSASKA. 
 
 ACTS OF lOOT. 
 
 Chapter 48. — LialiiUtij of railroad companies for injuries to env- 
 
 ployees. 
 
 Acts of em- Section 1. Every railway company operating a railway engine, 
 pioyees. car or train in the State of Nebraska shall be liable to any of its 
 
 employees, who at the time of injury are engaged in construction 
 or repair Vvfork, or in the use and operation of any engine, car or 
 train for said company, or, in the case of his death, to his per- 
 sonal representatives for the benefit of his widow and children, 
 if any, if none, then to his parents, if none, then to his next of 
 kin dependent upon him, for all damages which may result from 
 negligence of any of its officers, agents, or employees, or by rea- 
 Defects. son of any defects or insufficiency due to its negligence in its 
 
 cars, engines, appliances, machinery, track, roadbed, ways or 
 works. 
 Comparative Sec. 2. In all actions hereafter brought against any railway 
 negligence. company to recover damages for personal injuries- to an employee, 
 or when such injuries have resulted in his death, the fact that the 
 employee may have been guilty of contributory negligence shall 
 not bar a recovery when his contributory negligence was slight 
 and that of the employer was gross in comparison, but damages 
 shall be diminished by the jury in proportion to the amount of 
 negligence attributable to such employee, all questions of negli- 
 gence and contributory negligence shall be for the jury. 
 Contracts Sec. 3. No contract of employment, insurance, relief benefit, 
 not a tear. or indemnity for injury or death hereafter entered into by or 
 
 on behalf of any employee nor the acceptance of any such In- 
 surance, relief benefit, or indemnity by the person entitled thereto, 
 shall constitute any bar or defense to any action brought to re- 
 cover damages for personal injuries to or death of such em- 
 ployee: Provided, however. That upon the trial of such action 
 against any railway company the defendant may set-ofC any sum 
 It has contributed toward any such insurance, relief benefit, or 
 indemnity that may have been paid to the injured employee or, 
 in case of his death, to his personal representatives. 
 
 [The statute directing the use of automatic couplers and power 
 brakes on railroad trains provides that employees injured because 
 of violation of the law shall not be considered as waiving rights 
 to recover damages by continuing in the service of the negligent 
 company. Compiled Statutes of 1881, Tenth Edition, section 1799.] 
 
employees' liability m the united states. 73 
 
 NEVADA. 
 
 ACTS OF 1005. 
 
 Chaftek 142. — RigJit of action for personal injuries. 
 
 ■ Section 1. Whenever any person shall suffer personal injury by NegU^g^en t 
 wrongful act, neglect or default of another, the person causing' 
 the injury shall be liable to the person injured for damages; and 
 where the person causing such injury is employed by another per- 
 son or corporation responsible for his conduct, such person or Employers. 
 corporation so responsible shall be liable to the person injured for 
 damages. 
 
 Sec. 2. Such liability, however, where not discharged by agree- Deter ml na- 
 ment and settlement shall exist only in so far as the same shall JJ™ °^ "^^"■ 
 be ascertained and adjudged by a State or Federal court of com- 
 petent jurisdiction in this State in an action brought for that pur- 
 pose by the person injured. 
 
 ACTS OF 1907. 
 
 Chapter 214. — Liability of employers for injuries to employees. 
 
 Section 1. Every common carrier engaged in trade or commerce Acts of em- 
 in the State of Nevada, and every mine and mill owner and opera- ployees. 
 tor actually engaged in mining, or in milling or reduction of ores, 
 in the State of Nevada, shall be liable to any of its employees, or, 
 in case of the death of such employee, to his personal representa- 
 tive for the benefit of his widow and children, if auy, and if none, 
 then for his next of kin, for all damages which may result from 
 the negligence of the officers, agents, or employees of said common 
 carrier or mine or mill operator, or by reason of any defect or Defects, 
 insufaciency due to their negligence in its cars, engines, appliances, 
 machinery, track, roadbed, ways or works, or to their negligent 
 handling or storing of explosives. 
 
 Sec. 2. In all actions hereinafter brought against any common Comparative 
 carrier or mine or mill owner and operator to recover damages "^^sligence. 
 for personal injuries to or death of an employee, the fact that 
 the employee may have been guilty of contributory negligence 
 shall not bar a recovery where his contributory negligence was 
 slight and the negligence of the employer, or its officers, agents, 
 or employees was gross in comparison. All questions of negligence 
 and contributory negligence shall be for the jury. 
 
 Sec. 3. No contract of employment, insurance, relief benefit, or Contracts 
 Indemnity for injury or death, entered into by or on behalf of any ''°' ^ ''^'■■ 
 employee, nor the acceptance of any insurance, relief benefit or 
 indemnity by the person entitled thereto, shall constitute any bar 
 or defense to any action brought to recover damages for personal 
 injuries to, or death of such employee : Provided, however, That 
 upon the trial of such action the defendant may set off therein any 
 sum it has contributed toward any such insurance, relief benefit, 
 or indemnity that may have been paid to the person entitled 
 thereto. 
 
 NEW MEXICO. 
 
 COMPILED LAWS OF 1897. 
 
 Liahility of railroad companies for injuries to employees. 
 
 Section 3216. Every corporation operating a railway in this Lack of care 
 Territory shall be liable in a sum sufficient to compensate such i'J^^'f^*'°s em- 
 employee for all damages sustained by any employee of such cor- ^ ' 
 poration, the person injured or damaged being without fault on 
 his or her part, occurring or sustained in consequence of any mis- 
 management, carelessness, neglect, default or wrongful act of any 
 agent or employee of such corporation while in the exercise of 
 
74 
 
 BULLETIN OP THE BUKEATJ OF LABOR, 
 
 their several duties, wlien sncli mismanagement, carelessness, neg- 
 , lect, default or wrongful act of such employee or agent could have 
 been avoided by such corporation through the exercise of reason- 
 able care or diligence in the selection of competent employees or 
 Overworking agents, or by not overworking said eniployees or requiring or al- 
 emp oyees. lowing them to work an Unusual or unreasonable number of hours ; 
 and any contract restricting such liability shall be deemed to be 
 contrary to the^)ublic policy of this Territory and therefore void. 
 . Use of defect- .-gEc. 3217. It shall be unlawful for Tany Btich Corporation know- 
 
 IVG C^l'S GtC 
 
 ' ■ iiigly antl willfully to use or operate any car or locomotive that is 
 defective, or any car or loconiotive upon which the machinery ck 
 attachments thereto belonging are in any manner defective, or 
 shops or machinery and attachments thereof which ai'e in any 
 manner defective, which defects might have been previously ascer- 
 tained by ordinary care and diligence by said corporation. 
 
 If the employee of any such corporation shall receive any Injury 
 by reason 'of such defect iu any Car or locomotive or machinei-y or 
 attachments thereto belonging, or shops or machinery and attach- 
 ments thereof, owned and operated, or being run and operated by 
 such corporation, through no fault of his own, such corporation 
 shall be liable for such injury, and upon proof of the same in an 
 action brought by such employee or bis legal representatives, in 
 any court of proper jurisdiction, against such railroad corporation 
 
 Damages. foT damages on account of such injury so received, shall be en- 
 titled to recover again'st stich corporation any sum commensurate 
 
 Proviso. with the iajUries "sustained: t'rovide'd, That it shall be the duty 
 of all the employees of railroad corporations to promptly report 
 all defects coming to their knowledge In any such car or locomo- 
 tive or shops or machinery and attachments thereof to the proper 
 'Officer or agent of such corporation and after such report the doc- 
 trine of contributory negligence shall not apply to such employee. 
 Sec. 3218. Whenever the death of an enaployee shall be caused 
 trnder circumstances from which a cause of actioti would have 
 accrued under the provisions of the two preceding sections, if 
 death had not ensued, an action therefor shall be brought in the 
 ■manner provided by section three thousand two hundred and 
 fifteen, and any sum recovered therein shall be subject to all of 
 the provisions of said section three thonsaird two hundred and 
 fifteen. 
 
 HEW yORK. 
 
 Death. 
 
 ACTS OF 1902. 
 
 'Chapter 600. — lAabHity of employer's for iiij'iiries to employees. 
 
 Injuries SECTION 1. Where, after this act takes effect, personal injury 
 caused by— jg caused to an employee who is himself in the exercise of due 
 'care and diligence at the time : 
 Defective ma- i. By reason of any defect in the condition of the ways, works 
 c mery ; ..^j, jjjachinery connected with or -used in the business of the em- 
 
 l)loyer which arose from or had not been discovered or remedied 
 owing to the negli^gence of the employer or "of any person in the 
 service of the employer and intrusted by him with the duty of 
 seeing that the ways, works or machinery were in proper con- 
 dition ; 
 Nogligencc 2. By reason of the negligence of any person in the service 
 of superintend- of the employer intrusted with and exercising superintendence 
 whose sole or principal duty is that 'of superintendence, or in 
 the absence of such superintendent, of any person acting as 
 'SuperititQpdent with the authority or consent of such employer; 
 the employee, or in case the injury results in death, the executor 
 or administrator of a deceased employee who has left him 
 Right ot ac- surviving a husband, wife or next of kin, shall have the same right 
 of compensation and remedies against the employer as if the 
 employee has not been an employee of nor in the service of the 
 employer nor engaged in his work. The provisions of law relating 
 to actions for causing death by negligence, so far as the same are 
 
employeSs' liability iisr ihe united States. 75 
 
 consistent with tills act, shall apply to an action broiiglit by an 
 &!reciltDt 'or adtniulstratof 6t a dec&ased fefflployee Suing under the 
 pjovisions of this act. 
 
 Sec. 2. Ko Action for recovery of competisatloii for injury or Limitation, 
 death under this aiet shall be maintained unless notice of the time, 
 iplace and cause of the injury ts given to the employer within one 
 hundred ahd twenty days and the action is commenced within 
 one ^ear after the o'ccurrence of the acideut causing the Ihjuty 
 or death, the notice required by thi's SBctioh shall be in writing Notice, 
 and sighed by the persotii liljured or by Some one in his behalf, 
 but if from physical or mental incapacity it is impossible for the 
 person injured to give notice within the time provided in said 
 feectitjii, he may give the same within ten days after such inca- 
 pacity is reiaoved. In ease of his death wifheut haying given siich 
 n'oti'ce. his executor or administrator may give Such notice within 
 sixty days after his appiolntment, blit no notice under the pro- 
 visions of this section shall be deemed to be invalid or insufficient 
 solely by reason of any inaccuracy in stating the time, place or 
 cause of the injury if it be shovvh that there was no intention to 
 mislead and that the party entitled to notice was not in fact 
 misled thereby. The notice required by this section shall be 
 served on the emploj'Br or if there is more than one employer, 
 upoii one of stich employers, and may be served by delivering the 
 isame to or at the residence or place of business of the person on 
 whom it ife to be served, the notice may be served by post by 
 letter addifesSed to the person oh whom it is to be served, at his 
 last knovi'n plia-ce of residence or place of business and if served 
 by post shall be deemed to have been served at the time wheii 
 the letter containing the same would be delivered in the ordinary 
 "Course of the post. Wheii the employer is a corporation, notice 
 Shall be 'served by delivei'lhg the same or by sending It by post 
 addressed to the office or principal place of business Of such 
 ^corporation. 
 
 Sec. 3. An employee by entering upon or eohtinuiiig in the serV- . Assumed 
 iice of the employer shall be presumed to have assented to the'''^ 
 hecessary risks of the occupation or employment and no others. 
 The necessdiry risks of the bCciipation or employment Shall, in all 
 cases arising after this act takes effect be considered as including 
 those risks, and those Only, Inherent in the nature of the business 
 which remain after the employer has exercised due care in 
 providing for the safety of his employees, and has complied with 
 the laws affectitig Or regulating "such busihteSs or occupation fOir 
 the greater safety of such einployees. In ah action maintained 
 for the recovery of damages for personal injuries to an employee 
 received after this act takes efCect, Owing to any cause for 'which 
 the employer would otherwise be liable, the fafct that the employee 
 (Continued in the service of the employer in the same place and 
 'COurBe of employment after the discovery by such employee, or 
 •after he had been informed of, the danger of personal injury Knowledge of 
 therefrom, shall not, as a matter oi law, be Considered as an assent defect. 
 by such employee to the existence or Continuance of such risks 
 of personal injury therefrom, or as negligence contributing to 
 sUch Inj.ury. The question whether the employee Understood and 
 assumed the risk of such injury, or was guilty of contributory 
 negligence, by his continuance in the Same place and course of 
 employment with ktiowledge of the risk of injury shall be one 
 of fact, subject to the usual pofrers of the court in a proper case 
 to set aside a verdict rendered contrary to the evidence. An 
 employee, or his legal representative, Shall not be entitled imder 
 this act to any right of compensation or remedy against the 
 employer in any ease where such employee knew of the defect 
 or negligence which caused the injury and failed, within a reason- Failure to re- 
 able time, to give, or cause to be given, information thetebf to the f°'-'t- 
 employer, or to some person superior to himself in the service of 
 the employer who had intrusted to him some geheral suijerlntend.- 
 ence, uhless it shall appear oil the trial that such defect or negli- 
 gence was known to such employer, br superior petsoh, prior t6 
 such injuries to the employee. 
 
76 
 
 BULLETIN OF THE BUREAU OF LABOE, 
 
 ance fund. 
 
 Act 
 strued. 
 
 Contribution Sec. 4. An employer who shall have contributed to au insurance 
 o^™"!?,,]"^""^" fund created and maintained for the mutual purpose of indemni- 
 fying an employee for personal injuries, for which compensation 
 may be recovered under this act, or to any relief society or benefit 
 fund created under the laws of this State, may prove in mitiga- 
 tion of damages recoverable by an employee under this act such 
 proportion of the pecuniary benefit which has been ' received by 
 such employee from such fund or society on account of such con- 
 tribution of employer, as the contribution of such employer to 
 such fund or society bears to the whole contribution thereto. 
 
 Sec. 5. Every existing right of action for negligence or to re- 
 cover damages for injuries resulting in death is continued and 
 nothing in this act contained shall be construed as limiting any 
 such right of action, nor shall the failure to give the notice pro- 
 vided for in section two of this act be a bar to the maintenance 
 of a suit upon any such existing right of action. 
 
 ACTS OF 1006. 
 
 Chapter 657. — Lialility of railroad companies for injuries to 
 
 employees. 
 
 Section 1. Chapter five hundred and sixty-five of the laws of 
 eighteen hundred and ninety, * * * [relating to the organiza- 
 tion, etc., of railroads] is hereby amended by adding thereto a 
 new section, to be known as section forty-two-a, as follows : 
 
 Section 42-a. In all actions against a railroad corporation, 
 foreign or domestic, doing business in this State, or against a re- 
 ceiver thereof, for personal injury to, or death resulting from 
 personal injury of any person, while in the employment of such 
 corporation, or receiver, arising from the negligence of such corr 
 poration or receiver or of any of its or his officers or employees, 
 every employee, or his legal representatives, shall have the same 
 rights and remedies for an injury, or for death, suffered by him 
 from the act or omission of such corporation or receiver or of its 
 Additional or his officers or employees, as are now allowed by law, and, in addi- 
 
 Liabllity con- 
 tinued. 
 
 liability. 
 
 Vice ■ 
 pals. 
 
 Defects. 
 
 Contracts. 
 
 tion to the liability now existing by law, it shall be held in such 
 actions that persons engaged in the service of any railroad cor- 
 poration, foreign or domestic, doing business in this State, or in 
 the service of a receiver thereof, who are intrusted by such cor- 
 poration or receiver, with the authority of superintendence, con- 
 trol or command of other persons in the employment of such cor- 
 poration or receiver, or with the authority to direct or control any 
 other employee in the performance of the duty of such employee, 
 or who have, as a part of their duty, for the time being, physical 
 control or direction of the movement of a signal, switch, locomo- 
 princi- five engine, car, train or telegraph office, are vice-principals of 
 such corporation or receiver, and are not fellow-servants of such 
 injured or deceased employee. If an employee, engaged in the 
 service of any such, railroad corporation, or of a receiver thereof, 
 shall receive any injury by reason of any defect in the condition 
 of the ways, works, machinery, plant, tools or implements, or of 
 any car, train, locomotive or attachment thereto belonging, owned 
 oi- operated, or being run and operated by such corporation or 
 receiver, when such defect could have been discovered by such 
 corporation or receiver, by reasonable and proper care, tests or 
 inspection, such corporation or receiver, shall be deemed to have 
 had knowledge of such defect before and at the time such injury 
 is sustained; and when the fact of such defect shall be proved 
 upon the trial of any action in the courts of this State, brought "by 
 such employee or his legal representatives, against any such rail- 
 road corporation or receiver, on account of such injuries so re- 
 ceived, the same shall be prima facie evidence of negligence on 
 the part of such corporation or receiver. This section shall not 
 affect actions or causes of action now existing; and no contract, 
 receipt, rule or regulation, between an employee and a railroad 
 corporation or receiver, shall exempt or limit the liability of such 
 corporation or receiver from the provisions of this section. 
 
employers' liability in the united states. 77 
 
 nobth carolina, 
 revisal of 1905. 
 
 Liability of railroad companies for injuries to employees. 
 
 Section 2646. Auy servant or employee of any railroad com- Acts o( fel- 
 pany operating in this State who shall suffer injury to his person, low-servants, 
 or the- personal representative of any such servant or employee 
 who shall have suffered death in the course of his services or em- 
 ployment with such company by the negligence, carelessness or 
 incompetence of any other servant, employee or agent of the com- 
 pany, or by any defect in the machinery, ways or appliances of 
 the company, shall be entitled to maintain an action against such 
 company. Any contract or agreement, expressed or implied, made 
 by any employee of such company to waive the benefit of this sec- 
 tion shall be null and void. 
 
 [The statute relating to the operation of mines provides that 
 injuries or death resulting from willful violation of the law or 
 failure to comply therewith gives the injured party, or the personal 
 representatives of deceased persons, a right of action for damages. 
 Section 4942.] 
 
 NORTH DAKOTA. 
 
 REVISED CODES OF 1905. 
 
 Liability of employers for injuries to employees. 
 
 Section 4400. Every railroad company organized or doing busi- Acts of fel- 
 ness in this State shall be liable for all damages done to any em- 'o^. - servants 
 ployee of such company, in consequence of any negligence of its°"^^ '"^ ^* 
 agents, or by any mismanagement of its engineers, or other em- 
 ployees, to any person sustaining such damage; and no contract 
 which restricts such liability shall be legal or binding. 
 
 Sec. 5392. Every one is responsible not only for the result of Want of care, 
 his willful acts, but also for an injury occasioned to another by 
 his want of ordinary care or skill in the management of his prop- 
 erty or person, except so far as the latter has willfully or by 
 want of ordinary care, brought the injury upon himself. * * * 
 
 Sec. 5544. An employer is not bound to indemnify his employee Ordinary 
 for losses suffered by the latter in consequence of the ordinary i'''^'^^- 
 risks of the business in which he is employed, nor in consequence 
 of the negligence of another person employed by the same em- 
 ployer in the same general business, unless he has neglected to use 
 ordinary care in the selection of the culpable employee. 
 
 Sec. 5545. An employer must in all cases indemnify his em- Indemnity, 
 ployee for losses caused by the former's want of ordinary care. 
 
 Sec. 6556. Every person who suffers detriment from the unlaw- Damages, 
 ful act or omission of another may recover from the person in 
 fault a compensation therefor in money, which is called damages. 
 
 ACT^ OF 1907. 
 
 Chapteb 203. — LiabiUty of railroad companies for injuries to 
 
 employees. 
 
 Section 1. Every common carrier shall tie liable to auy of its Acts of em- 
 employees, or In case of the death of an employee, to his personal P'°y^^s. 
 representative, for the benefit of his widow, children or next of 
 kin, for all damages which may result from the negligence of any 
 of its officers, agents or employees, or by reason of any defect or Defects, 
 insufficiency due to its negligence in its cars, engines, appliances, 
 machinery, track, roadbed, ways or works. 
 
 Sec. 2. In all actions hereinafter brought against any common Comparative 
 carrier to recover damages for personal injuries to an employee, negligence. 
 
 30649— Bull. 74—08 6 
 
78 BULLETIN OF THE BUEEAU OF LABOE. 
 
 or where such injuries have resulted in his death, the fact that 
 the employee may have been guilty of contributory negligence 
 shall not bar a recovery, where his contributory negligence was 
 slight and that of the employer was gross in comparison, but the 
 damages ^all be diminished by the jury in proportion to the 
 amount of negligence attributable to such employee. All questions 
 of negligence and contributory negligence shall be for the jury. 
 Contracts not Sec. 3. No contract of employment, insurance, relief benefit or 
 a bai-. indemnity for Injury or death entered into by or on behalf of any 
 
 employee, nor the acceptance of any such insurance, relief benefit 
 or indemnity by the person entitled thereto shall constitute a bar 
 or defense to any action brought to recover damages for personal 
 injuries to or death of such employee: Provided, however. That 
 upon the trial of said action against any common carrier, the de- 
 fendant may set ofC therein any sum it has contributed toward 
 any such insurance, relief benefit or indemnity that may have 
 been made to the injured eniployee, or in case of Ms (ieath, to his 
 personal representative. 
 Limitation. Sec. 4. No action shall be maintained under this act unless 
 commence! within one year from the time the cause of action 
 accrued. 
 
 OHIO. 
 
 BATES'S AXNOTATED STATUTES— THIRD EDITION. 
 
 LiaMlity of railroad companies for injuries to employees, etc. 
 
 Contracts Sec. 3365-20. It shall be unlawful for any railroad or railway 
 waiving claims corporation or company owning and operating, or operating, 
 for damages. * * * g^ railroad in whole or in part in this State, to adopt or 
 promulgate any rule or regulation for the government of its serv- 
 ants or employees, or make or enter into any contract or agree- 
 ment with any person engaged in or about to engage in its service, 
 in which, or by the terms of which, such employee in any manner, 
 directly or indirectly, promises or agrees to hold such corporation 
 or company harmless, on account of any injury he may receive by 
 reason of an accident to, breakage, defect or insufficiency in the 
 cars or machinery and attachments thereto belonging, upon any 
 cars so owned and operated, or being run and operated by such 
 corporation, or company being defective, and any such rule, regu- 
 lation, contract or agreement shall be of no effect. It shall be 
 Compelling Unlawful for any corporation to compel or require directly or indi- 
 to join relief rectly an employee to join any company association whatsoever, or 
 society. jq withhold any part of an employee's wages or his salary for the 
 
 payment of dues or assessments in any society or organization 
 whatsoever, or demand or require either as a condition precedent 
 to securing employment or being employed, and said railroad or 
 railway company shall not discharge any employee because he re- 
 fuses or neglects to become a member of any society or organiza- 
 tion. And if any employee is discharged he may, at any time 
 within ten days after receiving a notice of his discharge, demand 
 Reason forthe reason of said discharge, and said railway or railroad corn- 
 discharge, pany thereupon shall furnish said reason to said discharged 
 employee in writing. And no railroad company, insurance society 
 or association, or other person shall demand, accept, require, or 
 enter into any contract, agreement, stipulation with any person 
 about to enter, or in the employ of any railroad company whereby 
 Waiving such person stipulates or agrees to surrender or waive any right 
 claims for dam- to damages against any railroad company, thereafter arising for 
 "scs- personal Injury or death, or whereby he agrees to surrender or 
 waive in case he asserts the same, any other right whatsoever, 
 and all such stipulations and agreements shall be void, and every 
 corporation, association or person violating or aiding or abetting 
 in the violation of this section shall for each offense forfeit and 
 pay to the person wronged or deprived of his rights hereunder 
 the sum not less than fifty dollars ($50) nor more than five hun- 
 dred dollars ($500) to be recovered in a civil action. 
 
employers' liability in the united states. 79 
 
 Sec. 3365-21. It shall be unlawful for auy sueli corporation to . Vse of defect- 
 knowingly or negligently use or operate any car or locomotive '^® ™"'' ""^ '^^' 
 that is defective, or any car or locomotive upon which the ma- 
 chinery or attachments thereto belonging are in any manner 
 defective. If the employee of any such corporation shall receive 
 any injury by reason of any defect in auy car or locomotive, or 
 the machinery or attachments thereto belonging, owned and oper- 
 ated, or being run and operated by such corporation, such corpo- 
 ration shall be deemed to have had knowledge of such defect 
 before and at the time such injury is so sustained, and when the 
 fact of such defect shall be made to appear in the trial of any 
 action in the courts of this State, brought by such employee, or Evidence, 
 his legal representatives, against auy railroad corporation for 
 damages, on account of sucli injuries so received, the same 
 shall be prima facie evidence of negligence on the part of such 
 corporation. 
 
 . Sec. 3365-22. In all actions against the railroad company for Superior serv- 
 personal injury to, or death resulting from personal injury, of ^"^ ^' 
 any person, while in the employ of such company, arising from 
 the negligence of such company or any of its officers or employees, 
 it shall be held in addition to the liability now existing by law, 
 that every person in the employ of such company, actually having 
 power or authority to direct or control auy other employee of 
 such company, is not the fellow-servant, but suiDerior of such 
 other employee, also that every person in the employ of such 
 company having charge or control of employees in any separate 
 branch or department, shall be held to be the superior and not 
 fellow-servant of employees in any other branch or department 
 who have no power to direct or control in the branch or depart- 
 ment in which they are employed. 
 
 ACTS OF 1902. 
 
 Liabilities of employer's for injuries to employees. 
 
 (Page 114.) 
 
 Section 1. An employer shall be responsible in damages for Injuries re- 
 personal injury caused to an employee, who is himself in the^gj*^"}.? *''° " 
 exercise of due care and diligence at the time, by reason of any ciiinery, etc. 
 defect in the condition of the machinery or appliances connected 
 with or used in the business of the employer, which arose from, 
 or had not been discovered or remedied owing to the negligence 
 of the employer, or of any person in the service of the employer. 
 Intrusted by him with the duty of inspection, repair, or of seeing 
 that the machinery or applances were in xiroper condition. 
 
 ACTS OF 1904. 
 
 Employers' liability — Assumption of rislc. 
 
 (Page 547.) 
 
 Section 1. In any action brought by an employee, or his legal Failure to 
 
 representative, against his employer, to recover for personal in- etc. 
 juries, when it shall appear that the injury was caused in whole 
 or in part by the negligent omission of such employer to guard or 
 protect his machinery or appliances, or the premises or place 
 where said employee was employed, in the manner required by 
 any penal statute of the State or United States in force at the 
 date of the passage of this act, the fact that such employee con- 
 tinued in said employment with knowledge of such omission, shall 
 not operate as a defense; and in such action, if the jury find for 
 the plaintiff, it may award such damages not exceeding, for in- 
 juries resulting in death,- the sum of five thousand dollars, and 
 for injuries not so resulting, the sum of three thousand dollars, 
 as it may find proportioned to the pecuniary damages resulting 
 
 provide guards, 
 
80 BULLETIN OF THE BUREAU OF LABOR. 
 
 from said injuries; but nothing herein shall affect the provisions 
 of section 6135 of the Revised Statutes. 
 
 Nothing herein contained shall be construed as affecting the 
 defense of contributory negligence, nor the admissibility of evi- 
 dence competent to support such defense. 
 
 [The statute regulating the working of mines gives, a right of 
 action for injuries or death occasioned by any violation of the 
 act or any willful failure to comply with its provisions. An. 
 Stat., section 301. 
 
 A railroad company whose superintendent or station agent has 
 received notice of a defective coupler or bi'ake is liable for in- 
 juries occasioned by such defect after the expiration of twenty- 
 four hours after the notice has been received. An. Stat., section 
 33651 
 
 A statute directing the use of self-cleaning ash dump pans on 
 railroad locomotives denies to companies neglecting to comply with 
 the law the defense of contributory negligence or of assumed risks 
 in actions for personal injury to or death of any engineer or fire- 
 man occasioned by such negligence. Acts of 1906, page 46. 
 
 A statute directing the installation of power or train brakes 
 and of automatic couplers on railway trains provides that in 
 actions for injuries or death caused by failure to observe the 
 law the defenses of assumed risks and contributory negligence 
 will not be allowed. Acts of 1906, act, page 75.] 
 
 OKLAHOMA. 
 
 CONSTITUTION OF 1907. 
 
 Article IX. — LiahUity of employers for injuries to employees. 
 
 Follow -serv- Section 36. The common law doctrine of the fellow-servant, 
 ice not a de- go far as it affects the liability of the master for injuries to his 
 ^•^"^^^ servant, resulting from the acts or omissions of any other servant 
 
 or servants of the common master. Is abrogated as to every em- 
 ployee of every railroad company and every street railway com- 
 • pany or interurban i-ailway company, and of every person, firm, or 
 corporation engaged in mining in this State ; and every such em- 
 ployee shall have the same right to recover for every injury suf- 
 fered by him for the acts or omissions of any other employee or 
 employees of the common master that a servant would have if 
 Death. ^^ch acts or omissions were those of the master himself in the per- 
 
 formance of a nonassignable duty; and when death, whether in- 
 stantaneous or not, results to such employee from any injury for 
 which he could have recovered under the above provisions, had 
 not death occurred, then his legal or personal I'epresentative, sur- 
 viving consort or relatives, or any trustee, curator, committee or 
 guardian of such consort or relatives, shall have the same rights 
 and remedies with respect thereto, as if death had been caused by 
 the negligence of the master. And every railroad company and 
 every street railway company or interurban railway company, and 
 every person, firm, or corporation engaged in underground mining 
 in this State shall be liable under this section, for the acts of his 
 or its receivers. 
 
 Nothing contained in this section shall restrict the power of the 
 legislature to extend to the employees of any person, firm, or cor- 
 poration, the rights and remedies herein pi'ovided for. 
 
 Article XXIII. — Contrlhiitory negligence and assumption of risk. 
 
 Questions SECTION G. The defense of contributory negligence or of as- 
 loi-juiy. sumption of risk shall, in all cases whatsoever, be a question of 
 
 fact, and shall, at all times, be left to the jury. 
 
employees' liability in the united states, 81 
 
 OREGON. ' 
 
 ACTS OF 1903. 
 
 LiahiUty of railroad companies for injuries to employees. 
 
 (Page 20.) 
 
 Section 1. Every corporation operating a railroad in this State, . ^°™pj'"'' "' 
 wlietlier sucli corporation be created under tlie laws of this State, 
 or otherwise, shall be liable in damages for any and all injury sus- 
 tained by any employee of such corporation as follows: When 
 such injury results from the wrongful act, neglect, or default of an 
 agent or officer of such corporation, superior to the employee in- 
 jured, or of a person employed by such corporation having the 
 right to control or direct the services of such employe* injured, or 
 the services of the employee by whom he is injured; and also 
 when such injury results from the wrongful act, neglect, or de- 
 fault of a coemployee engaged in another department of labor 
 from that of the employee injured, or of a coemployee on another 
 train of cars, or of a coemployee who has charge of any switch, 
 signal point, or locomotive engine, or who is charged with dis- 
 patching trains or transmitting telegraphic or telephonic orders. 
 Knowledge by an employee injured of the defective or unsafe char- 
 acter or condition of any machinery, ways, appliances, or struc- 
 tures of such corporation shall not of itself be a bar to recovery 
 for any injury or death caused thereby. When death, whether in- 
 stantaneous, or otherwise, results from an injury to any employee 
 of such corporation received as aforesaid, the personal represent- 
 ative of such employee shall have a right of action therefor 
 against such corporation, and may recover damages in respect 
 thereof. Any contract or agreement, express or implied, made by 
 any such employee to waive the benefit of this section, or any part 
 thereof, shall be null and void, and this section shall not be con- 
 strued to deprive, any such employee, or his personal representa- 
 tive, of any right or remedy to which he is now entitled under 
 the laws of this State. 
 
 Sec. 2. The rules and principles of law as to contributory negli- Contributory 
 gence which apply to other cases shall apply to cases arising under negligence, 
 this act, except in so far as the same are herein modified or 
 changed. 
 
 [Employees whose failure to comply with the factory inspection 
 law causes injury to employees are liable to such employees in 
 damages. Acts of 1007, chapter 158, section 8.] 
 
 PENNSYLVANIA. 
 
 ACTS OP 1907. 
 
 Act No. 329. — LiaUliiy of employers for injuries to employees. 
 
 Section 1. In all actions brought to recover from an employer Fellow -serv- 
 for Injuries suffered by his employee, the negligence of a fellow- *<=" ""' ^ de- 
 servant of the employee shall not be a defense, where the injury*™^®' '^''®°- 
 was caused or contributed to by any of the following causes; 
 namely, 
 
 Any defect in the works, plant, or machinery, of which the 
 employer could have had knowledge by the exercise of ordinary 
 care; the neglect of any person engaged as superintendent, man- 
 ager, foreman, or any other person in charge or control of the 
 works, plant, or machinery; the negligence of any person in^harge 
 of or directing the particular work in which the employee was 
 engaged at the time of the injury or death; the negligence of 
 any person to whose orders the employee was bound to conform, 
 and did conform, and, by reason of his having conformed thereto, 
 the injury or- death resulted; the act of any fellow-servant, done 
 
82 
 
 BULLETIN OP THE BTJEBAU OF LABOB. 
 
 ill obediencef to the rules, Instructions, or orders given by the 
 employer, or any other person who has authority to direct the doing 
 of said act. 
 Vice - princi- Sec. 2. The manager, superintendent, foreman, or other person 
 pals. ijx charge or control of the works, or any part of the worlds, shall, 
 
 under this act, be held as the agent of the employer, in all suits 
 for damages for death or injury suffered by employees. 
 
 POBTO RICO. 
 
 REVISED STATUTES— l!:it»2. 
 LiaMUty- of employers for injuries to employees. 
 
 Injury caused 
 by- 
 
 Defective ma- 
 chinery ; 
 
 Negligence 
 of superintend- 
 ent ; 
 
 Person in 
 charge of loco- 
 motive, etc. 
 
 Who may sue. 
 
 Damages. 
 
 Survival of 
 action. 
 
 Limit of dam- 
 ages. 
 
 Section 322. Where, after the passage of this act, personal 
 injury is caused to an employee who is himself in the exercise 
 of due care and diligence at the time: 
 
 1. By reason of any defect in the condition of the ways, works, 
 or machinery, connected with, or used in the business of the em- 
 ployer, which arose from or had not been discovered or remedied 
 owing to the negligence of the employer or of any person in the 
 service of the employer and intrusted by him with the duty of 
 seeing that the ways, works, or machinery, were in proper condi- 
 tion ; or 
 
 2. By reason of the negligence of any person in the sen-ice of 
 the employer intrusted with the exercising of .superintendence 
 whose sole or principal duty is that of superintendence ; or 
 
 3. By reason of the negligence of any person in the service of 
 the employer who has charge of, or physically controls, any signal 
 switch, locomotive engine, car or train in motion, whether at- 
 tached to an engine or not, upon a railroad, the employee, or, in 
 case the injury results in death, his widow or children, or both of 
 them, and if there be no such widow and children, then his par- 
 ents (provided that said parents were dependent upon such em- 
 ployee for support) may maintain an action for damages against 
 the employer, pursuant to the provisions of this act. 
 
 Sec. 323. When an employee receives a personal injury under 
 any of the conditions enumerated in section 1 hereof [sec. 322], he 
 may bring an action against his employer before the proper dis- 
 trict court, to recover damages for such injury. The damages so 
 recovered shall not exceed the sum of two thousand dollars, and 
 in assessing the amount of such damages the court shall take 
 into consideration the degree of culpability of the employer, or of 
 the person for whose negligence the employer is liable hereunder, 
 the sums expended by the employee for medical attendance, for 
 drugs, medicines and similar necessary expenses, and the loss of 
 wages while recovering from the injury ; the court shall also take 
 into consideration the physical pain and suffering caused by the 
 injury. If the injury be of such character as to permanently im- 
 pair the earning capacity of the employee, the court shall include 
 in the damages awarded an allowance for such loss. In case the 
 injury results in a temporary impairment of his earning capacitj', 
 the court, in addition to pain and suffering and the expenditures 
 for medical services and drugs, shall take into consideration the 
 average rate of wages which, under ordinary conditions, he might 
 have earned if not injured. 
 
 Sec. 324. In case of the death of the employee before the ter- 
 mination of the action so brought against the employer, it may be 
 continued in the name of his widow or children, and if there be no 
 such widow or children, then in the name of his parents, if they, 
 or either of them, were dependent upon such employee for sup- 
 port at the time of the injury. If it shall appear in any action so 
 continued in the name of the widow, children or parents of a 
 deceased injured employee that the death was the result of the 
 Injury, damages shall be as.sessed by the court in a sum not to 
 exceed three thousand dollars; and the court shall estimate such 
 damages in accordance with : 
 
employees' liability in the united states. 83 
 
 (a) The degree of culpability of the employer or of the person 
 tov whose negligence the emploj-er is liable. 
 
 (b) The material damage incurred by the claimant or claim- 
 ants through the death of the employee in accordance with the 
 actual needs that said claimant or claimants had to depend upon 
 the wages of such employee for their support, taking into consid- 
 eration his earning capacity and his probabilities of life, at the 
 time of the accident. 
 
 Sec. 325. When, before having commenced an action hereunder, Suit by wid- 
 an employee dies as the result of personal injury received under °^' ''''^■ 
 any of the conditions enumerated under section 1 hereof [sec. 322], 
 his widow, children, or both of them, or if there be no such widow 
 or children, then his parents, provided such parents were depend- 
 ent upon such employee for support at the time of the injury, may 
 maintain an action against the employer before the proper district 
 court, for damages caused by the death of such employee. Such 
 damages shall not exceed the sum of three thousand dollars and 
 shall be fixed by the court in accordance with : 
 
 (a) The degree of culpability of the employer or of the person 
 for whose negligence the employer is liable. 
 
 (b) The material damage incurred by the claimant or claim- 
 ants through the death of the employee in accordance with the 
 actual needs that such claimant or claimants had to depend upon 
 the wages of such employee for their support, taking into consid- 
 eration his earning capacity and his probabilities of life, at the 
 time of the accident. 
 
 Sec. 326. The court, when fixing the amount of damages to be Division of 
 paid in case of death by personal injury under this act, shall de- """^ses. 
 termine the amount due to each of the claimants in proportion to 
 the material damages incurred by each of them in accordance 
 with the actual needs which each of them had to depend upon the 
 wages of the employee whose death was caused by accident. 
 
 Sec. 327. No action for the recovery of damages for injury or Limitation, 
 death under the provisions of this act shall be maintained unless 
 notice of the time, place, and cause of the Injury is given to the 
 employer within thirty days after the injury is received or unless 
 it is commenced within six months from the date of the injury. 
 The notice required by this section shall be in writing, signed by 
 the person injured or by some one in his behalf ; but if from phys- 
 ical or mental incapacity it is impossible for the person injured 
 to give the notice within the time provided in said section, he may 
 give the same within ten days after the Incapacity is removed, 
 and in case of his death without having given the notice and with- 
 out having been at any time after his injury of sufficient capacity 
 to give the notice the person or persons entitled to claim com- 
 pensation pursuant to the provisions of this act, or their repre- 
 sentatives, may give such notice within thirty days after the 
 death* of such employee. But no notice given under the provisions 
 of this section shall be deemed to be invalid or insufficient solely 
 by reason of any inaccuracy in stating the time, place or cause of 
 injury : Provided, It is shown that there was no intention to mis- 
 lead, and that the party entitled to notice was not in fact misled 
 thereby. 
 
 Sec. 328. Whenever an employee [employer] enters into a con- Empioypr u- 
 tract, either written or verbal, with an independent contractor to '^' ^''"^°- 
 do part of such employer's work, or whenever such contractor en- 
 ters into a contract with a subcontractor to do all or any part of 
 the work comprised in such contractor's contract with the em- 
 ployer, such contract or subcontract shall not bar the liability 
 of the employer for injuries to the employees of such contractor 
 or subcontractor, by reason of any defect in the condition of the 
 ways, works, machinery, or plant, if they are the property of the 
 employer, or furnished by him, and if such defect arose or had 
 not been discovered or remedied through the negligence of the 
 employer or of some person intrusted by him with the duty of 
 seeing that they were in proper condition. 
 
84 BULLETIN OF THE BUREAU OF LABOK. 
 
 Knowledge of Sec. 320. Xo employee, or his widow or children, or either of 
 defect a bar. them, or his parents, if there be no such widow or children, shall 
 be entitled under this act to any right of compensation or remedy 
 against the employer in any case where such employee knew of 
 the defect or negligence which caused the injury, and failed within 
 a reasonable time to give, or cause to be given, information thereof 
 to the employer, or to some person superior to himself in the serv- 
 ice of the employer who had intrusted to him some general super- 
 intendence. 
 
 Contribution Sec. 330. Any employer who shall have contributed to an in- 
 fund"^"'^"''^*'"^^"'^® ■'^'^"'^ created and maintained for the mutual purpose of 
 indemnifying an employee for personal injuries for which com- 
 pensation may be recovered under this act, or who has insured the 
 .said employee in any insurance company against the accidents of 
 labor, shall be entitled to have deducted from the sum which he 
 shall have to pay as compensation under the provisions of this 
 act, the amount that shall have been received by the person in- 
 jured, or by his widow, or children, or both of them, or by the 
 parents, if there be no such widow and children, from the afore- 
 said fund or from the insurance company, by reason of the same 
 accident. 
 
 Exceptions. Sec. 331. This act shall not apply to injuries caused to domestic 
 servants, or farm laborers, by fellow employees. 
 
 BHODE ISLAND. 
 
 [The statute directing the epuipment of certain buildings, in- 
 eluding factories, with fire escapes, and the guarding of elevator 
 shafts, etc., makes owners and lessees liable in damages for in- 
 juries or death caused by a failure to comply with its provisions. 
 General Laws of 1896, chapter 108, sections 8 and 16.] 
 
 SOUTH CAEOLINA. 
 
 COXSTITUTIOX. 
 
 Akticle 0. — LiahiUty of railroad companies for injuries to 
 employees. 
 
 Negligence of Section 15. Every employee of any railroad corporation shall 
 superior; have the same rights and remedies for any injury sufiCered by 
 
 him from the acts or. omissions of said corporations or its em- 
 ployees as are allowed by law to other persons not employees, when 
 the injury results froin the negligence of a superior agent or offi- 
 cer, or of a person having a right to control or direct the services 
 Of fellow- of a party injured, and also when the injury results from the neg- 
 servants in an- ligence of a fellow-servant engaged in another department of labor 
 meut. '^ from that of the party injured, or of a fellow-servant on another 
 train of cars, or one engaged about a different piece of work. 
 Knowledge of Knowledge by any employee Injured of the defective or unsafe 
 defective ma- character or condition of any machinery, ways or appliances shall 
 chinery. jjg ^Q defense to an action for injury caused thereby, except as to 
 
 conductors or engineers in charge of dangerous or unsafe cars or 
 Injury caus- engines voUuitarily operated by them. When death ensues from 
 ing death. ji^y injury to employees, the legal or personal representatives of 
 the person injured shall have the same right and remedies as are 
 Contract allowed by law to such representatives of other persons. Any 
 waiving rights, contract or agreement, expressed or Implied, made by any em- 
 ployee to waive the benefit of this section shall be null and void; 
 and this section shall not be construed to deprive any employee 
 of a corporation, or his legal or personal representative, of any 
 remedy or right that he now has by the law of the land. The 
 general assembly may extend the remedies herein provided for to 
 any other class of employees. , 
 
employees' liability in the united states, 85- 
 
 CODE OF 1902. 
 
 Civil Code. 
 
 Righfs^and remedies of employees on street railways. 
 
 Section 2848. Every employee of any street railway doing busl- . W'"^* rpme- 
 ness in this State shall have the same rights and remedies for an "^' '^^'^ •*'■ 
 injury suffered by any person from the acts or omission of said 
 corporation, or its employees, as are provided by the constitution 
 for employees of railroad corporations. 
 
 ACTS OF 1903. 
 
 Act No. 48. — LiaMUty of railroad companies for injuries to 
 employees — Relief departments. 
 
 Section 1. From and after the approval of this act, when any Settlement re- 
 railroad company has what is usually called a relief department '3"'''''''''t death, 
 for its employees, the members of which are required or permitted 
 to pay some dues, fees, moneys or compensation to be entitled to 
 the benefits thereof, upon the death or injury of the employee, a 
 member of such relief department, such railroad company is here- 
 by required to pay to the person entitled to same, the amount it 
 was agreed the employee or his heirs at law should receive from 
 such relief department ; the acceptance of which amount shall not Benefit not a 
 operate to estop or in any way bar the right of such employee, or ^^^ *" action 
 his personal representative, from recovering damages of such rail- "'^ amages. 
 road 'company for injury or death caused by the negligence of 
 such company, its agents or servants, as now provided by law ; 
 and any contract, or agreement to the contrary, shall be Ineffective 
 for that purpose. 
 
 SOTTTH DAKOTA. 
 
 REVISED CODES OF 190.3. 
 
 Civil Code. , 
 
 Liahility of employers for injuries to employees. 
 
 Section 1449. An employer is not bound to indemnify his em- Ordinary 
 ployee for losses suffered by the latter in consequence of the risks. 
 ordinary risks of the business in which he is employed, nor in 
 copsequence of the negligence of another person employed by the 
 same employer in the same general business, unless he has neg- 
 lected to use ordinary care in the selection of the ' culpable 
 employee. 
 
 Sec. 1450. An employer must in all cases indemnify his em- Want of care, 
 ployee for losses caused by the former's want, of ordinary care. 
 
 ACTS OF 1907. 
 
 CiiAPTEB 219. — LlaMlity of railroad companies for injuries to 
 
 employees. 
 
 Section 1. Every common carrier engaged in trade or com- Acts of em- 
 merce in the State of South Dakota shall be liable to any of itsP'oy^es. 
 employees, or in case of his death, to his personal representative 
 for the benefit of his widow and children, if any, if none, then 
 for his parents, if none, then for his next of kin dependent upon 
 him, for all damages which may result from the negligence of 
 any of Its officers, agents or employees, or by reason of any de- Defects, 
 feet or insufficiency due to its negligence in its cars, engines, 
 appliances, machinery, track, road-bed, ways or works. 
 
 Sec. 2. In all actions hereafter brought against any common Comparative- 
 carrier to recover damages for personal injuries to an employee, negligence. 
 or where such injuries have resulted in his death, the fact that 
 
86 
 
 BULLETIN OF THE BXJEEAU OF LABOR. 
 
 the employee may have been guilty of contributory negligence 
 shall not bar a recovery where his contributory negligence was 
 less than the negligence of the employer, but the damages shall 
 be diminished by the jury in proportion to the amount of negli- 
 gence attributable to such employee. All questions of negligence 
 and contributory negligence shall be for the jury. 
 Contracts not Sec, 3. No contract of employment, insurance, relief benefit 
 ^ ""''• or indemnity for injury or death entered Into by or on behalf of 
 
 any employee, nor the acceptance of any such insurance, relief 
 benefit, or indemnity by the person entitled thereto shall consti- 
 tute any bar or defense to any action brought to recover damages 
 for personal injuries to or death of such employee: Provided, 
 however. That upon the trial of such action against any common 
 carrier the defendant may set off herein any sum it has con- 
 tributed towards any insurance, relief benefit or indemnity that 
 may have been paid to the injured employee, or in case of his 
 death, to his personal representative. 
 Limitation. Sec. 4. No action shall be maintained under this act, unless com- 
 menced within two years from the time the cause of action 
 accrued. 
 
 TEXAS. 
 
 ACTS OF 1897, SPECLi.L SESSION. 
 
 Chapteb 6. — Liability of railroad companies for injuries to 
 
 employees. 
 
 Acts of fel- 
 low-servants. 
 
 Vice - princi- 
 pals defined. 
 
 Fellow -serv- 
 ants defined. 
 
 C f) n t r a c t s 
 limiting liabil- 
 ity. 
 
 Contributory 
 negligence. 
 
 Section 1. Every person, receiver, or corporation operating a 
 railroad or street railway the line of which shall be situated in 
 whole or in part in this State, shall be liable for all damages sus- 
 tained by any servant or employee thereof while engaged in the 
 work of operating the cars, locomotives, or trains of such person, 
 receiver, or corporation, by reason of the negligence of any other 
 servant or employee of such iJerson, receiver, or corporation, and 
 the fact that such servants or employees were fellow-servants 
 with each other shall not impair or destroy such liability. 
 
 Sec. 2. All persons engaged in the service of any person, re- 
 ceiver, or corporation, controlling or operating a railroad or street 
 railway the line of which shall be situated in wliole or in part in 
 this State, who are intrusted by such person, receiver, or corjjora- 
 tion with the authority of superintendence, control, or command 
 of other servants or employees of such person, receiver, or cor- 
 poration, or with the authority to direct any other employee in 
 the performance of any duty of such employee, are vice-principals 
 of such person, receiver, or corporation, aud are not fellow-serv- 
 ants with their coemployees. 
 
 Sec. 3. All persons who are engaged in the common service of 
 such person, receiver, or corporation, controlling or operating a 
 railroad or street i<allway, and who while so employed are in the 
 Slime grade of employment and are doing the same character of 
 work or service and are working together at the same time and 
 place and at the same piece of work and to a common purpose, 
 are fellow-servants with each other. Employees who do not come 
 within the provisions of this section shall not be considered fellow- 
 servauts. 
 
 Sec. 4. No contract made between the employer and employee 
 based upon the contingency of death or injury of the employee and 
 limiting the liability of the employer under this act or fixing dam- 
 ages to be recovered shall be valid or binding. 
 
 Sec. 5. Nothing in this act shall be held to impair or diminish 
 the defense of contributory negligence when'the Injury of the serv- 
 ant or employee is caused proximately by his own contributory 
 negligence. 
 
employees' liability in the united states. 87 
 
 ACTS OF 1005. 
 
 Chapteb 163. — Liability of employers for injuries to employees — 
 Assumption of risk. 
 
 Section 1. In any suit against a person, corporation or receiver Defense not 
 operating a railroad or street railway for damages for the death allowed, when, 
 or personal injury of an employee or servant, caused by the wrong 
 or negligence of such person, corporation or receiver, the plea of 
 assumed risk of the deceased or Injured employee where the 
 ground of the plea is knowledge or means of knowledge of the 
 effect and danger which caused the injury or death shall not be 
 available in the following cases : 
 
 First. Where such employee had an opportunity before being 
 injured or killed to Inform the employer or a superior intrusted 
 by the employer with the authority to remedy or cause to be rem- 
 edied the defect, and does notify or cause to be notified the em- 
 ployer or superior thereof within a reasonable time: Provided, It 
 shall not be necessary to give such information where the em- 
 ployer or such superior thereof already knows of the defect. 
 
 Second. Where a person of ordinary care would have continued 
 in the service with the knowledge of the defect and danger and 
 In such case it shall not be necessary that the servant or employee 
 give notice of the defect as provided in subdivision 1 hereof. 
 
 "UTAH. 
 
 REVISED STATUTES OF 1S98. 
 FelloiD-servcDits. 
 
 Section 1342. All persons engaged in the service of any person, vice - piinci- 
 firm, or corporation, foreign or domestic, doing business in this pa's defined. 
 , State, who are intrusted by such person, firm, or corporation as 
 employer with the authority of superintendence, control, or com- 
 mand of other persons in the employ or service of such employer, 
 or with the authority to direct any other employee in the perform- 
 ance of any duties of such employee, are vice-principals of such 
 employer and are not fellow-servants. 
 
 Sec. 1343. A]\ persons who are engaged in the service of such Fellow -serv- 
 employer, and who, while so engaged, are in the same grade of '^^ ^' 
 service and are working together at the same time and place and 
 to a common purpose, neither of such persons being intrusted by 
 such employer with any superintendence or control over his fel- 
 low employees, are fellow-servants with each other : Provided, Proviso. 
 That nothing herein contained shall be so construed as to make 
 the employees of such emisloyer fellow-servants with other em- 
 ployees engaged in any other department of service of such em- 
 ployer. Employees who do not come within the provisions of 
 this section shall not be considered fellow-servants. 
 
 [The statute regulating the working of coal and hydrocarbon 
 mines directs the employment of a certified mining or fire boss^ 
 and provides that where an accident causing personal injury or 
 death occurs in a mine in which the mining or fire boss has no 
 certificate of competency the owner or operator of the mine shall 
 be liable in the full amount of damages sustained. Acts of 1905, 
 chapter 122, section 16.] 
 
 VEBMONT. 
 
 [Statutes directing the installation of safety appliances on rail- 
 roads make negligent companies liable for damages and injuries 
 resulting from failure to comply with the law. Statutes of 1894, 
 sections 3887, 3911.] 
 
88 BULLETIN OF THE BUREAU OF LABOB. 
 
 VIRGINIA. 
 CONSTITUTION. 
 
 Article 12. — Liahillty of railroad companies for injuries to 
 employees. 
 
 ActB of fei- Section 102. The doctrine of fellow-servant, so far as it affects 
 low-servants, ^jjg liability of tlie master for injuries to his servant resulting 
 from tlie acts or omissions of any otlier servant or servants of 
 the common master, is, to the extent hereinafter stated, abolished 
 as to every employee of a railroad company, engaged in the phys- 
 ical construction, repair or maintenance of its roadway, track or 
 any of the structures connected therewith, or in any work in or 
 upon a car or engine standing upon a track, or In the physical 
 operation of a train, car, engine, or switch, or in any service. re- 
 quiring his presence upon a train, car, or engine ; and every such 
 employee shall have the same right to recover for every injury 
 suffered by him from the acts or omissions of any other employee 
 or employees of the common master, that a servant would have 
 (at the time when this constitution goes into effect), if such acts 
 or omissions were those of the master himself in the performance 
 
 Negligence of of a nonassignable duty: Provided, That the injury, so suffered 
 ent.'"'"" "y ^^"^'^ railroad employee, result from the negligence of an offi- 
 
 cer, or agent, of the company of a higher grade of service than 
 himself, or from that of a person, emisloyed by the company, hav- 
 ing the right, or charged with the duty, to control or direct the 
 general services or the immediate work of the party injured, or 
 the general services or the immediate work of the eoemployee 
 through, or by, whose act or omission he is injured; or that it 
 result from the negligence of a eoemployee engaged in another de- 
 other^°°de'Da^rt- Partment of labor, or engaged upon, or in charge of, any car upon 
 ment, etc. which, or upon the train of which it is a part, the injured em- 
 
 IJloyee is not at the time of receiving the injury, or who is in 
 charge of any switch, signal point, or locomotive engine, or is 
 charged with dispatching trains or transmitting telegraphic or 
 telephonic orders therefor ; and whether such negligence be in the 
 performance of an assignable or nonassignable duty. The phys- 
 ical construction, repair or maintenance of the roadway, track or 
 any of the structures connected therewith, and the physical con- 
 struction, repair, maintenance, cleaning or operation of trains, 
 cars or engines, shall be regarded as different departments of 
 labor within the meaning of this sec 'ion. Knowledge, by any such 
 railroad employee injured, of the defective or unsafe character or 
 condition of any machinei-y, ways, appliances or structures, shall 
 be no defense to an action for injury caused thereby. When 
 
 Injuries death, whether instantaneous or not, results to such an employee 
 causing death, f^.^^j j,jjy injury for which he could have recovered, under the 
 above provisions, had death not occurred, then his legal or per- 
 sonal representative, surviving consort, and relatives (and any 
 trustee, curator, committee or guardian of such consort or rela- 
 tives) shall, respectively, have the same rights and remedies with 
 respect thereto as if his death had been caused by the negligence 
 of a eoemployee while in the performance, as vice-principal, of a 
 
 Contra ct snonassignable duty of the master. Every contract or agreement, 
 waiving rigiits. express or implied, made by an employee, to waive the enefit of 
 this section, shall be null and void. This section shall not be con- 
 strued to deprive any employee, or his legal or personal represent- 
 ative, surviving consort or relatives (or any trustee, curator, 
 committee or guardian of such consort or relatives), of any rights 
 ' oi remedies that he or they may have by the law of the land, at the 
 
 Provisions time this constitution goes into effect. Nothing contained in this 
 not restrictive, section shall restrict the power of the general assembly to fur- 
 ther enlarge, for the above-named class of employees, the rights 
 and remedies hereinbefore provided for, or to extend such rights 
 and remedies to, or otherwise enlarge the present rights and 
 remedies of, any other class of employees of railroads or of em- 
 ployees of any person, firm or corporation. 
 
employers' liability in the united states. 89 
 
 CODE OF 1904. 
 Liability of railroad companies for injuries to employees. 
 
 Section 1294k. Every corporation operating a railroad in this ^ LiabiiUy for 
 State, whether such corporation be created under the laws of this super in tend- 
 State or otherwise, shall be liable in damages for any and all ent. 
 injuries sustained by any employee of such corporation as follows : 
 When such injury results from the wrongful act, neglect, or de- 
 fault of an agent or officer of such corporation superior to the 
 employee injured, or of a person employed by such corporation 
 having the right to control or direct the services of such employee 
 injured, or the services of the employee by whom he is injured; 
 and also when such injury results from the wrongful act, neglect, 
 or default of a coemployee engaged in another department of other^°°depa^t- 
 labor from that of the employee injured, or of a coemployee on ment, etc. 
 another train of cars, or of a coemployee who has charge of any 
 switch, signal point, or locomotive engine, or who is charged with 
 dispatching trains or transmitting telegraphic or telephonic 
 orders. Knowledge of any employee injured of the defective or 
 unsafe character or condition of any machinery, ways, appliances, 
 or structures of such corporation shall not of itself be a bar to 
 recovery for any injury or death caused thereby. When death, injuries 
 whether instantaneous or otherwise, results from any injury to causing death, 
 any employee of such corporation received as aforesaid, the 
 personal representative of such employee shall have a right of 
 action therefor against such corporation, and may recover dam- 
 ages in respect thereof. Any contract or agreement, express or Contracts 
 implied, made by any such employee to waive the benefit of this waiving riglits. 
 section or any part thereof shall be null and void, and this section 
 shall not be construed to deprive any such employee, or his per- 
 sonal representative, of any right or remedy to which he is now 
 entitled under the laws of this State. The rules and principles Contributory 
 of law as to contributory negligence, which apply to other cases, negligence, 
 shall apply to cases arising under this act, except in so far as the 
 same are herein modified or changed. 
 
 [An act directing the erection of telltales or danger signals 
 at the approaches to bridges over railroads, tunnels, etc., makes 
 failure to provide such devices ground for a right of action where 
 injury or death results from such failure. Section 1294d, sub- 
 section 36.] 
 
 WASHINGTON. 
 
 [An act requiring frogs, switches, and guard rails to be blocked 
 and guarded makes companies failing to do so liable in damages 
 to parties injuried because of such failure. .Acts of 1899, chapter 
 35, section 2. 
 
 Employers whose failure to comply with the factory inspection 
 law causes injury to employees are liable to such employees in 
 damages. Acts of 1905, chapter 84, section 8.] 
 
 WISCONSIN. 
 
 ANNOTATED STATUTES OF 1898. 
 
 Liability of railroad companies for injuries to employees. 
 
 Section 1816 (as amended by chapter 254, Acts of 1007). Every injuries 
 railroad company shall be liable for damages for all injuries '^^"^'"i ^^ — 
 whether resulting in death or "not, sustained by any of its em- 
 ployees, subject to the provisions hereinafter contained regarding 
 contributory negligence on the 'part of the injured employee : 
 
 l.'When such injury is caused by a defect in any locomotive, Defects; 
 engine, car, rail, track, roadbed, machinery or appliance used 
 by its employees in and about the business of their employment. 
 
90 BULLETIN OF THE BUREAU OF LABOB. 
 
 Negligenceof o. When sucli Injury shall liave been snstainecT by any officer, 
 coemployees. agent, servant or employee of such company, while engaged in the 
 line of- his duty as such and which such injury shall have been 
 caused in whole or in greater part by the negligence of any other 
 officer, agent, servant or employee of such company, in the dis- 
 charge of, or by reason of failure to discharge his duties as such. 
 
 Comparative 3. In every action to recover for such injury the court shall 
 negligence. submit to the jury the following questions: First, whether the 
 company, or any officer, agent, servant or employee other than 
 the person injured was guilty of negligence directly contribu- 
 ting to the injury; second, if that question is answered in the 
 affirmative, whether the person injured was guilty of any neg- 
 ligence which directly contributed to the injury; third, if that 
 question is auswei-ed in the affirmative, whether the negligence 
 of the party so injured was slighter or greater as a contributing 
 cause to the injury than that of the company, or any officer, 
 agent, servant or employee other than the person so injured; and 
 such other questions as may be necessary. 
 
 Recovery, 4. In all cases where the juiy shall find that the negligence 
 wiieu. of the company, or any officer, agent or employee of such com- 
 
 pany was greater than the negligence of the employee so injured, 
 and contributing in a greater degree to such injury, then the 
 plaintiff shall be entitled to recover, and the negligence, if any, of 
 the employee so injured shall be no bar to such recovery. 
 
 Questions for 5. In all cases under this act the question of negligence and 
 3"''5- contributory negligence shall be for the jury. 
 
 Contracts. 6. No contract Of receipt between any employee and a railroad 
 
 etc., not a bar. company, no rule or regulation promulgated or adopted by such 
 
 company, and no contract, rule or regulation in regard to any 
 
 notice to be given by such employee shall exempt such corporation 
 
 from the full liability imposed by this act. 
 
 Definitions. 7. The phrase " railroad company," as used in this act, shall be 
 taken to embi-ace any company, association, corporation or person 
 managing, maintaining, operating, or in possession of a railroad in 
 whole or in part within this State whether as owner, contractor, 
 lessee, mortgagee, trustee, assignee or receiver. 
 
 Pleading 8. In any action brought in the courts in this State by a resl- 
 statute. dent thereof, or the representative of a deceased resident, to re- 
 
 cover damages in accordance with this act, where the employee of 
 any railroad company owning or operating a railroad extending 
 into or through this State and into or through any other State or 
 States shall have received his injuries in any other State where 
 such railroad is owned or operated, and the contract of employ- 
 ment shall have been made In this State, it shall not be competent 
 for such railroad company to plead or prove the decisions or stat- 
 utes of the State where such person shall have been injured, as a 
 defense to the action brought In this State. 
 
 Exemptions. 9. The provisions of this act shall not apply to employees work- 
 ing in shops or offices. 
 
 [A statute directing railroad companies to block or guard all 
 frogs in their tracks makes failure to comply with the law ground 
 for action in damages in cases where injury results from such 
 failure, even though the failure or violation occurs through the 
 negligence of some other agent or employee. Section ISOOb. 
 
 The law requiring dangerous machinery to be guarded takes 
 away the defense of assumed risks in cases where employees are 
 injured as a result of the employer's failure to comply with the 
 law. Supp. 1906, section 1636jj. 
 
 A statute providing for the erection of telltales at the ap- 
 proaches to bridges, etc., over rtiilroads, takes away from com- 
 Iianies neglecting or refusing to comply with the law the defense 
 of assumption of risk in cases where employees are injured on 
 account of the lack of such telltales. Supp. 1900, section lS09i.3 
 
employers' liability in the tTNITED STATES. 91 
 
 WYOMING. 
 CONSTITUTION. 
 
 Article 10. — Limitation and waiver of right to damages. 
 
 Section 4. No law shall be enacted limiting tlie amount of . Damages for 
 damages to be recovered for causing the injury or death of any '°J"'''«^- 
 person. Any contract or agreement with any employee waiving 
 any right to recover damages for causing the death or injury of 
 any employee shall be void. 
 
 Aetice 19. — Contracts of employees nvaiving right to damages. 
 
 Section 1. It shall be unlawful for any person, company or cor- Contra eta 
 poration, to require of its servants or employees as a condition of tJfaamages'*''''' 
 their employment, or otherwise, any contract or agreement, 
 whereby such person [,] company or corporation shall be released 
 or discharged from liability or responsibility, on account of per- 
 sonal injuries received by such servants or employees, while in 
 the service of such person, company or corporation, by reason of 
 the negligence of such person, company or corporation, or the 
 agents or employees thereof, and such contracts shall be 
 absolutely null and void. 
 
 [In an article on the operation of mines the constitution con- 
 tains a provision granting a right of action for injuries or death 
 occasioned because of violations by the employer of the provisions 
 of the constitution or of laws passed in pursuance thereof. Ar- 
 ticle 9, section 4.] 
 
 UNITED STATES. 
 
 [The so-called safety-appliance law, which prescribes the use of 
 automatic couplers, power brakes, etc., on railroad trains engaged 
 in interstate commerce, provides that employees injured by the 
 use of any locomotive, car, or train in violation of the act shall 
 not be deemed to have assumed the risk, even though he knew of 
 the unlawful use. Compiled Statutes of 1901, page 3174, section 8. 
 
 For the liability law of 1906, which was declared unconstitu- 
 tional by the Supreme Court, see pages 216 and 217, below.] 
 
 CONSTEUCTION OF STATUTE LAWS. 
 
 In the following summary of opinions use has been made almost 
 exclusively of the opinions of Federal courts and of the State courts 
 of final resort. As appears from an examination of the statutes re- 
 produced above, some of them, as Arizona and Connecticut, are noth- 
 ing more than a restatement of the common law and require no con- 
 sideration here. The general statutes of North Dakota (sections 
 5392, 5544, 5545) and South Dakota (sections 1449, 1450) are also 
 examples of this class of laws,('') though in each of these States is 
 to be found legislation affecting the liability of railroad companies. 
 
 Prior to 1907 the California law (sections 1970, 1971) had been 
 similar to that of the Dakotas, all three having been taken from the 
 draft of law prepared by the New York code commission, of which 
 David Dudley Field was the leading member. The amended form 
 of section 1970 introduces the superior servant and departmental 
 
 "Elliot V. Chicago, M. & St. P. K. Co. (1889), 5 Dak. 523, 41 N. W. 758. 
 
92 BULLETIN OF THE BUREAU OP LABOR. 
 
 doctrines, stating the latter in such form as apparently to modify to 
 a considerable degree the defense of coemployment. It also excepts 
 from the class of fellow-servants certain designated groups or grades 
 of employees. These amendments bring the section in the particulars 
 specified within the class of laws which follow the English liability 
 law, and would doubtless be construed as are similar provisions of 
 such laws in other States. No case under the amended section has 
 3'et been reported from the California courts. 
 
 The law of Georgia also (sections 2610-2613, 3030) is in effect a 
 restatement of the common law, though section 2613 declares con- 
 tracts waiving the servant's rights as fixed by law to be null and void, 
 in so far abrogating the common-law doctrine of this State. Kail- 
 roads are exempted from the scope of these sections. 
 
 As stated in the first part of this discussion, the principles of the 
 common law as construed in the various States will apply in the con- 
 struction and application of statutes. Within the bounds of the 
 statute it, of course, controls, but the common-law doctrines and defi- 
 nitions in use in the State are influential, subject to the rule that the 
 adoption by a State of the statute of another State gives to -the con- 
 struction put upon the law by the courts of the State of earlier enact- 
 ment an important influence as indicating the true intent of the legis- 
 lature in adopting such law. These constructions and rulings are not 
 conclusive, but are entitled to great weight. (") 
 
 "Whether or not the provisions of a statute can be waived by a con- 
 tract entered into prior to the happening of the accident causing the 
 injuries for which damages are claimed has been generally decided 
 in the negative. (*) The laws prohibiting such contracts have re-! 
 ceived countenance in a number of cases. (") In the Indiana and 
 Iowa citations it was necessary to decide on the constitutionality of 
 this particular provision of the statute. In the ]Mumford case the 
 clause prohibiting contracts limiting liability was held applicable to 
 a provision in a contract of employment limiting the time within 
 which actions to recover damages for injuries might be brought, the 
 provision being condemned as contrary to law. In the Quinn case 
 
 "Birmingham K. & Electric Co. r. Allen (1803), 99 Ala. 359, 13 So. 8; Colo- 
 rado Jlilling & Elevator Co. v. Jlitcliell (1809), 26 Colo. 284, 58 Peg. 28. 
 
 * See page 14, above. 
 
 « Quinn v. New York, N. II. & H. B- Co. (1900), 175 Mass. 150, 55 X. E. 891; 
 Piei-fee i: Van Dusen (1807), 78 Fed. 693; Jliuneapolis & St. L. R. Co. v. Her- 
 rick (1888), 127 U. S. 210, S Sup. Ct. 1176; Pittsburg, C, C. & St. L. R. Co. v. 
 Montgomery (1898), 152 Ind. 1, 49 ^^ E. 5S2; Powell r. Sherwood (1901), 
 1G2 Mo. 605, 63 S. W. 485; Mumford r. Chicago, B. I. & P. E. Co. (1905), 128 
 Iowa 085, 104 N\ AV. 1135; Kansas P. R. Co. v. Peavey (1883), 29 Kan. 169, 44 
 Am. Rep. 630, approved in AVestern Furu. & llfg. Co. v. Bloom (1907), 90 Pac. 
 821. (Ivans.) Per contra, see Shaver v. Pennsylvania Co. (1800), 71 Fed. 931. 
 
employers' liability in the united states. • 93 
 
 it was held that the statute was not contravened by an agreement in 
 the contract of employment by which the employee undertook to 
 make a careful examination of the place of work so that he might 
 understand its dangers. 
 
 An agreement with the employer that the acceptance of benefits 
 from a relief fund Avill act to prevent recovery in suits at law is not 
 a violation of a provision forbidding contracts waiving a right to 
 recover. (") " It is nothing more or less than a contract for a choice 
 between sources of. compensation where but a single one existed; and 
 it is the final choice — the acceptance of one against the other — that 
 gives validity to the transaction." (*) 
 
 , Double recovery will not- be allowed, the provision of such con- 
 tracts that jsrosecution of a suit to judgment or a compromise bars all 
 claims to the benefit fund, fixing the status of any claimant there- 
 under. Thus a widow who sued as administratrix and recovered 
 damages for the death of her husband for the benefit of their chil- 
 dren was held barred under the contract, as the coilrt ruled that the 
 judgment accrued to her benefit as well.(<') But her receipt of bene- 
 fits from the fund as widow does not bar subsequent action as ad- 
 ministratrix for the benefit of a child or children. (*) A statute of 
 Georgia, however, requires railroad companies to pay the agreed 
 benefit on the death of an employee from accident, with the provi- 
 sion that the acceptance of such benefit shall not be a bar to action. 
 
 While express messengers may at common law waive their right of 
 action against both their employer and the transporting company, 
 such a contract was declared void as against the railroad under the 
 Iowa statute forbidding contracts of employees waiving their rights 
 to sue for damages. (*) 
 
 LAWS FOLLOWING THE BRITISH STATUTE. 
 
 The common law was construed nuich more unfavorably to the 
 employee in England than in this country, a fact which led to such 
 an amount of agitation for a statutory change that a liability law 
 was enacted in 1880, taking effect January 1, 1881. This law, while 
 of comparatively small present importance in Great Britain on ac- 
 count of the later " Compensation Acts," has had a considerable in- 
 fluence in this country, both its form and its judicial construction 
 having been adopted more or less^fuUy in a number of jurisdictions 
 
 « Pittsburg, C, C. & St. L. R. Co. v. Cox (180G), 55 Ohio St. 497, 45 N. E. 
 641 ; Johnson v. Charleston & S. E. Co. (1899), 55 S. C. 152, 32 S. E. 2. 
 
 6Pittsblu-g, C, C. & St. L. R. Co. v. Moore (1890), lo2 lud. 345, 53 N. E. 290. 
 « Baltimore & O. R. Co. r. Ray (1905), 36 Ind. App. 430, 73 N. E. 942. 
 « O'Brien v. Chicago N. W. R. Co. (1902), 116 Fed. 502. 
 
 30640— Bull. 74—08 7 
 
94 BULLETIN OF THE BUEEAU OF LABOR. 
 
 of the United States. Theae are, in the order of time, Alabama 
 (1884-85), Massachusetts (1887), Colorado (1893), Indiana (1893: 
 applicable only to railroads and other corporations, except munici- 
 pal), New York (1902), and Porto Kico (1902). The Pennsylvania 
 liability law of 1907 also embodies in a less formal manner the prin- 
 cipal provisions of the act in so far as they relate to the defense of 
 fellow-service. 
 
 The form of the Massachusetts law as it appears in the foregoing 
 compilation is the result of a number of amendments, while the origi- 
 nal Colorado statute (sections 1511a-1511e) is in some measure 
 affected by the absolute abrogation of the fellow-servant doctrine by 
 an act of the legislature of 1901 (sections ISllf , lollg) . 
 
 These laws (except those of Pennsylvania and Porto Rico, under 
 which no action has been reported as yet) have all stood the test of 
 constitutionality, except that of Indiana, as to which it has been 
 ruled that the inclusion of other corporations than those engaged in 
 railway service, while partnerships and individual employers are 
 exempt, is unwarrantable and unconstitutional. (") Under this con- 
 struction, therefore, the law applies to railroads exclusively. 
 
 GENERAL PRINCIPLES OF CONSTRUCTION. 
 
 The rule that statutes in derogation of the common law will be 
 strictly construed has generally been modified, in respect of the acts 
 in hand, in favor of a liberal construction, in order that the purpose 
 of the acts may be accomplished. (') In the Alabama case cited the 
 court said : " Being in derogation of the common law, the inference 
 is that the terms of the act clearly import the changes intended, and 
 their operation will not be enlarged by construction further than 
 may be necessary to effectuate the manifest ends. Xotwithstanding, 
 a narrow and restrictive view of the act should not be taken. In its 
 construction the court should consider its objects, have regard to the 
 intentions of the legislature, and take a broad view of its provisions, 
 commensurate with the proposed purposes."' 
 
 In general it may be said that the effect of the act is not to create 
 new causes of action nor to abrogate the general principles of com- 
 mon law. The determination of the relationship of the parties as 
 employer and employee is unchanged. ('') Volunteers and servants 
 going out of their scope of employment are therefore not aided by 
 the laws;('') nor, unless specifically included (as is done in the Colo- 
 
 " Bedford Quarries Co. r. Bougli (1907), SO X. E. 520. 
 
 »Eyalls V. Mechanics' Mills (1SS9), 150 Mass. 190, 22 X. E. TOG; Huut v. 
 Conner (1901), 26 Ind. App. 41, 59 N. E. 50; Mobile & B. U. Co. r. Holborn 
 (1888), 84 Ala. 133, 4 So. 14G. 
 
 « Alabama G. S. R. Co. v. Carroll (1892), 97 Ala. 120. 
 
 <»Propst V. Georgia P. R. Co. (1S8S), S3 Ala. 518, 3 So. 704: Mellor r. Mer- 
 chants' Mfg. Co. (1890), 150 Mass. 362, 23 N. E. 100. 
 
employees' liability in the united states. 95 
 
 rado and Massachusetts statutes) , do the acts embrace subcontractors 
 or their employees. (») Employees of receivers were held to be within 
 the protection of the Indiana law. C") 
 
 The acts do not attempt to codify the whole law on the subject, and 
 , they leave open some commons-law defenses and some common-law 
 liabilities. ('•) A plaintiff seeking relief for injuries may find it un- 
 der the common law rather than under the statute, as in some States 
 the latter makes certain requirements as to notice, etc., and limits the 
 amount recoverable, and one suing' under the act must show that his 
 case falls within its provisions. (*) The acts are frequently referred 
 to as " fellow-servant laws," the principal feature being- the abroga- 
 tion as to the classes of employees enumerated, and under the condi- 
 tions specified, of the defense of common employment, (*) so that the 
 question- of the importance or weight of this defense may decide 
 Avhether an action should be brought under the statute or the com- 
 mon law. The defenses of assumed risks and of contributory negli- 
 gence are at the most only modified, and are not taken aAvay from the 
 employer by these acts. The supreme court of Alabama allowed 
 recovery under the liability law for the death of an employee result- 
 ing from the wanton negligence or willful wrong of an engineer, 
 holding that even though the injured party may have been negligent, 
 his negligence would be a defense only in connection with a purely 
 negligent act of the employee inflicting the injury; but where the 
 wrong was intentional, negligence on the part of the injured employee 
 would not defeat recovery. (") In the same case the theory that, dam- 
 ages under this act are punitive was denied, the court ruling that they 
 are compensatory only. 
 
 In no State are the common-law rights of an injured employee 
 abrogated, and the requirement as to notice of action need not be 
 given unless the suit is for damages recoverable only under the act. 
 Thus in a New York caseC) it was held that the act only regulates 
 procedure relative to the new or extended liability granted thereby; 
 but the requirement as to timely giving of notice must be strictly 
 observed, (s') The contents thereof need not be formally complete, 
 however, if they are sufficient in fact to furnish substantial notice. ('') 
 Where the statute contains a provision limiting the time within which 
 
 " Scarborongli v. Alabama M. R. Co. (1861), 94 Ala. 497, 10 So. 316. 
 
 * Hunt V. Conner, supra. 
 
 c Kyalls V. Mechanics' Mills, supra. 
 
 « Coffee r. N. Y. ete. R. Co. (1891), 155 Mass. 21, 28 X. E. 1128. 
 
 « Louisville & N. R. Co. r. York (1901), 128 Ala. 305, 30 So. 676. 
 
 f Gmaehle v. Rosenberg (1904), 178 X. Y. 147, 70 N. E. 411. 
 
 s Veginan r. Morse (1893), 160 Mass. 143, 35 N. E. 451. 
 
 "Brick V. Boswortli (1894), 162 Mass. 334, 30 N. E. 36. 
 
96 BULLETIN OF THE BUKEATJ OF LABOB. 
 
 action thereunder may be brought, it must be strictly observed, as,' 
 like notice, it is a condition imposed on the enforcement of a new | 
 remedy. 
 
 SPECIFIC PROVISIONS OF THE ACTS. 
 
 Defects in condition of ways, works, etc. 
 
 The principal purpose of this clause seems to have been to lay a 
 foundation for the abrogation of the English fellow-service doctrine, 
 and it does not greatly affect the rights of the employee at common 
 law as it is construed in the United States. (") The duty of provid- ' 
 ing and maintaining safe and suitable appliances here devolves on the 
 employer, and is nondelegable. The condition of the place is the 
 matter to be considered, and not the question of the employer's per- 1 
 sonal negligence as distinguished from that of an employee to whom 
 he may have committed the duty of attending thereto. In other 
 words, the employer is liable for defects, and it is not necessary, under 
 this section, to aver that he was negligent. (*) As at common law, 
 however, the defect must be the proximate cause of the injury, (") and 
 mere accident affords no ground of action. 
 
 The ground of action is, in all the States in the list under considera- 
 tion with one exception, an-injury caused by a defect in the condition 
 of the instrumentality, following the phraseology of the English law. 
 The exception is Pennsylvania, where the word " condition " is 
 omitted, and the defect is to be in the works, plant, or machinery. 
 The significance of this omission has not been determined by the 
 Pennsylvania courts, but has been discussed in a Massachusetts case, (*) 
 where it was held that a defect in the condition of machinery meant, ' 
 not a defect that interfered with the working capacity, but one that 
 affected the safety of employees. An English judge stated that the 
 use of the word " condition " gave a broader meaning to the phrase 
 than it would otherwise have, " but I do not think it is A^ery much 
 wider." («) Not every accidental or temporary condition is included, 
 but the defect must affect the permanent or quasi-permanent condi- 
 tion of the employer's establishment. ( 
 
 The phrase " connected with or used in the business of the em- 
 ployer " is broad enough to include instrumentalities which the 
 employer does not own, but which are, as a matter of fact, being used 
 
 " Eyalls V. Mechanics' Mills, supra. 
 6 Lynch v. Allen (1893), IGO Mass. 248, 35 N. E. 550. 
 « Southern R. Co. v. Guyton (1899), 122 Ala. 231, 25 So. 34. 
 ^Willey I'. Boston E. L. Co. (1897), 168 Mass. 40, 46 N. E. 305. 
 «McGiffin r. Palmer's S. & I. Co. (1882), 10 Q. B. Div. 5. 
 
 f O'Connor r. Noal (3891), 153 Mass. 281, 26 N. E. 857; Kansas City, etc., 
 E. Co. V. Burton (1892), 97 Ala. 240, 12 So. 88. 
 
employees' liability in the united states. 97 
 
 by him in the conduct of his business. (") But no liability attaches 
 where the employer has not the control of the agency causing the 
 injury, as where he was a mere licensee using occasionally the track 
 of a connecting railroad. (*) "The defect must be one which the 
 employer has a right to remedy if he discovers it."(") 
 
 What constitutes a defect is not defined by the acts themselves, and 
 recourse is had to the principles of common law in making the deter- 
 mination. As already intimated, it depends on the question of suit- 
 ableness for the intended use rather than on any unrelated quality of 
 completeness. An unsuitableness of ways, works, or machinery for 
 work intended to be done by means of them is a defect, although they 
 Eire perfect of their kind, in good repair, and suitable for some work 
 done in the employer's business other than the work in doing which 
 their unsuitableness caused the injury complained of. (^) That the 
 employer is not bound to procure the latest or best obtainable devices 
 follows from the rules of common law, as does the fact that he is not 
 liable where the employee fails to observe such precautions as a pru- 
 dent man would observe in like circumstances of danger, or where by 
 his own choice he diverts the instrumentality from its intended use to 
 another use. 
 
 The expression as to knowledge of the defect practically brings the 
 employer within the doctrine of the common law, which does not im- 
 pute liability unless there is actual or constructive knowledge of the 
 conditions occasioning the injury. («) 
 
 The provision of the acts relating to the reporting of defects by 
 the employee is not found in the Indiana and Pennsylvania; laws. In 
 the former State, however, the injured employee must be " in the 
 exercise of, due care and diligence," which is practically a statement 
 of the conditions required for an action at common law, aiid would 
 presumably be required in a suit under the Pennsylvania statute. 
 
 Failure to report known defects, unless the employer was known 
 to have knoMedge thereof otherwise, is a bar to action for resultant 
 injuries ;(') or in other words, the statute does not exclude the appli- 
 cation of the maxim, " Volenti non fit injuria." (») This is therefore 
 in accordance with the common-law rule that an employee accepts 
 the risks of known and appreciated dangers. At common law, fail- 
 ure to report is held not the breach of a duty but an added reason 
 
 « Coffee r. Xew York, etc., R. Co., supra. 
 
 ^Trask v. Old Colony R. Co. (1802), 156 Mass. 298, 31 X. E. 6. 
 c Engel V. New York, etc., K. Co. (1893), 160 Mass. 260, 35 N. B. 547. 
 <«Geloneck v. Steam Pump Co. (1896), 165 Mass. 202, 43 N. E. 85. 
 ^.Louisville & X. R. Co. r. Campbell (1892), 97 Ala. 147, 12 So. 574; Coffee v. 
 New York, etc., R. Co., supra. 
 
 f Mobile & B. R. Co. v. Holboni, supra. 
 
 ffO'Maley v. Soutli Boston Gaslight Co. (1893), 158 Mass. 135, 32 N. E. 1119. 
 
98 BULLETIN OF THE BUKEAXJ OF LABOB. 
 
 ■why an employee may not, under such circumstances, recover. The 
 status of an employee who has given the required notice is not well 
 settled. An English case('') favored the position that an employee 
 having given such notice was secure in his rights to recover, though 
 later cases have left room for a consideration of the doctrine of 
 volenti non fit injuria. (") 
 
 Negligeiice ■ of employees exercising superintendence. 
 
 Each of the laws of the group under consideration has a clause set- 
 ting forth the liability of the employer for injury caused by the neg- 
 ligence of a person in authority over the injured employee, by reason 
 of which the injury was inflicted.- The scope of these provisions 
 varies, and the test of rank i^ not uniformly held to, the Alabama law, 
 for instance, allowing specifically for a dual capacity, while the Colo- 
 rado law on its face only requires that the negligent act be that of a 
 ' person whose sole or principal duty is that of superintendence. The 
 Pennsylvania law enumerates as within the class of persons for whose 
 acts the employer is liable, foremen and other persons in charge of 
 works, plant, or machinery, and persons in charge of the particular 
 work in which the employee was engaged at the time of his injury. 
 
 In the construction given by the courts it seems to be pretty uni- 
 formly established that the act complained of must itself be one of 
 superintendence, and that the mere fact that it was the act of a per- 
 son usually engaged in superintendence is not conclusive. ('^) 
 
 An action may be brought, howe^'er, even where the injury 
 resulted from the negligence of a superintendent while he was en- 
 gaged in manual labor, assisting the plaintiff in his work,('') and the 
 fact that he labors occasionally or even a considerable portion of the 
 time does not necessarily take away the employers" responsibility for 
 him as a superintendent ;(^) but the negligence must be in the matter 
 of his duty as superintendent, and not as a laborer, to make the 
 employer liable under this provision. 
 
 "V^^io are superintendents is variously indicated, so far as the acts go. 
 Persons whose sole or principal duty is superintendence ; or, further, 
 
 "Thomas r. Quartermaine (18S7), 18 Q. B. Div. 685, 56 L. J. Q. B. K. S. 340. 
 
 » Yarmouth v. France (1887), 19 Q. B. Div. GST, 57 L. J. Q. B. X. S. 7; Smith 
 r. Baker (1891), A. C. 325, 60 L. J. Q. B. X. S. 683. 
 
 ''Whittaker v. Bent (1897), 167 Mass. 588, 10 X. E. 121; Dantzler v. De Bar- 
 deleben C. & I. Co. (1893), 101 Ala. 309, 11 So. 10; Louisville, X. A. & C. E. Co. 
 V. Southwlck (1896), 16 Ind. App. 486, 44 X. E. 263 ;' Gallagher v. Xewman 
 (1908), 190 N. Y. 444, S3 N. E. 480. Xo case on this point from Colorado is at 
 hand, but in view of the similarity of the provisions of the laws, the courts of 
 that State would probably agree with the rulings of the llassachusetts courts. 
 
 <* Kansas City, M. & B. R. Co. v. Burton (1892), 97 Ala. 240, 12 So. 88; Joseph 
 V. George C. Whitney Co. (1000), 177 Mass. 170, 58 X. E. 039. 
 
 eRlou v. Roekport Granite Co. (1898), 171 Mass. 162, 50 X. E. 525; Crowley 
 V. Cutting (1896), 165 JIass. 436, 43 X. E. 197. 
 
employees' liability in the united states. 99 
 
 persons acting as such Avith authority in their absence; or, as in Ala- 
 bama, a person who has " any superintendence " intrusted to him, are 
 designated. The terms used in the Pennsylvania law are noted above ; 
 the Indiana law omits the clause as to su]3erintendents. 
 
 The difficulty of determining the point of superintendence of course 
 arises only when the case involves a person below the rank of a gen- 
 eral superintendent or manager. The foreman of a small gang of 
 freight handlers, (") and the foreman of a section gang on a rail- 
 road (*) have been held to be within the Massachusetts act. In gen- 
 • eral it is a matter for the jury and must be determined by the facts 
 in the particular case. The fact that he is not expected or required to 
 labor with his hands, (") or that he receives higher wages than his 
 associates (*) is evidence, but is not conclusive. Mere reputation as 
 foreman, however, or the fact that he occasionally gives orders, will 
 not be sufficient to charge the employer. (^) 
 
 That the employer's liability is enlarged by this clause was recog- 
 nized in a New York case,^) in which it was said that " it is clear 
 that it [the act of 1902] has given an additional cause of action 
 where it prescribes that the master shall be liable for the negligence 
 of the superintendent or any person acting as such. At common law, 
 while the master was liable for the fault of his alter ego to whom he 
 intrusted the whole management of the work, with the power to em- 
 ploy and discharge servants, he was not liable for the negligence of 
 foremen merely as such." 
 
 As to the phrasing of the Alabama law its supreme court has said 
 that it was the apparent intent of the legislature to make the common 
 employer liable when the injury complained of is caused by one who 
 has any superintendence intrusted to him, whether or not he is en- 
 gaged in manual labor. (^) The negligent act must, however, be one 
 of superintendence. (*) 
 
 That the negligent superintendent need not be the superintendent 
 of the injured employee is held in an Alabama case.('') The negli- 
 gence of a conductor running his train in disobedience to orders, 
 thereby causing the death of a fireman on another train, was held, in 
 a case under the New York law,(*) to be the act of a person not in su- 
 
 « JIahoney v. New York & N. E. E. Co. (1894), 160 Mass. 573, 36 N. E. 588. 
 
 » Davis V. New York, N. H. & H. E. Co. (1893), 159 Mass. 532, 34 N. E. 1070. 
 
 "Prendible v. Connecticut E. Mfg. Co. (1893), 160 Mass. 131, 35 N. E. 675; 
 Carroll?. Wilcutt (1895), 163 Mass. 221, 39 N. E. 1016. 
 
 "^O'Eriea v. Look (1898), 171 Mass. 36, 50 X. E. 458. 
 
 « O'Brien v. Eideout (1894), 161 Mass. 170, 36 N. E. 792; Knight i: Overman 
 Wheel Co. (1899), 174 Mass. 455, 54 N. E. 890. 
 
 f Gmaehle i\ Eosenberg, supra. See also Harris r. Baltimore II. & E. Works 
 (1907), 188 N. Y. 141, 80 N. E. 1028. 
 
 ^Dantzler v. De Bardeleben C. & I. Co., supra. 
 
 * Kansas City, M. & B. E. Co. v. Burton, supra. 
 
 '■ Crosby v. Lehigh A'alley E. Co. (1905), 137 Fed. 705 (C. C. A.). 
 
100 BULLETIN OF THE BUHEAU OF LABOR. 
 
 perintendence, that duty devolving on the train dispatcher,, whose 
 proper orders had been disobeyed. No damages were allowed therefore 
 under the act of 1902, though it seems probable that under the act of 
 1906 (chap. C57), recovery could be had. 
 
 Negligence of employees giving orders. 
 
 The laws of Alabama, Indiana, and Pennsylvania follow the Eng- 
 lish act in containing a clause mentioning injuries caused by the negli- 
 gence of an employee giving orders to which the injured employee was 
 bound to conform, and did conform, and making the employer liable if 
 injuries resulted from the fact of his having so conformed. This clause 
 is a recognition of the " superior servant " doctrine discussed in the 
 first part of this article, and is independent of and in addition to the 
 provisions relating to the negligence of superintendents. ('') It " dis- 
 tinguishes employees of a superior rank — employees clothed with 
 authority and responsibility of the employer." C*) The question of 
 engaging in manual labor is of little or no importance here, the test 
 being one of actual authority, of orders within the scope of that 
 authority, the obligation to obey, and the connection between obedi- 
 ence and the injury complained of. The first two of these three 
 points practically fall within the scope of the principle of law that 
 the acts of an employee outside the scope of his employment entail no 
 obligation on the employer. This applies to the giving of orders as 
 well as the carrying of them out. An Indiana case('^) apparently 
 holds that in the absence of specific authority to do so, a superintend- 
 ent or foreman can not appoint a temporary substitute to act in his 
 absence and to have such authority as to bind the employer for the 
 negligence of such substitute. The question at once arises as to 
 whether the injured employee was bound to obey the temporary fore- 
 man's orders, or would disobedience be excused by the common em- 
 ployer on the ground of the lack of proper authority. If employers 
 generally would not so excuse disobedience, as seems most probable, 
 then to deny to the injured employee the right of action would seem 
 unjust. Apart from this statute, however, the Indiana courts have 
 held that foremen or bosses were, in general, ffellow-servants of the 
 workmen who were obliged to conform to their orders. (*) An employee 
 who complies with the request of a person in charge of work, but not 
 in control of him personally, has no redress against the employer in 
 
 " Kansas City, M. & B. E. Co. v. Burton, supra. 
 
 ^ Louisville, N. A. & C. R. Co. v. Wagner (1899), 153 Ind. 420, 53 N. E. 927. 
 
 " Hodges V. Standard Wheel Co. (1898), 152 Ind. 680, 52 N. E. 391 ; same case 
 (1899), 54 N. E. 383. 
 
 ''Brazil, &c.. Coal Co. v. Cain (1SS4), 98 lud. 282; Indiana Car Co. v. Parker 
 (1885), 100 Ind. 181. 
 
employees' liability in the united states. 101 
 
 case of resulting injury,(<») But where there is authority, the em- 
 ployer is liable even though the order is to do an act prohibited by 
 his rules, on the ground that the employee is not supposed to decide 
 as to the right or wrong of the act when obeying his actual supe- 
 rior ;(») but not if he knows the act is outside the scope of the su- 
 perior's authority. (") 
 
 The requirement that there must be a causal connection between 
 the negligent order and the injury complained of is in accord with 
 the principles of liability already suiSciently discussed. The order 
 itself may be given explicitly, or it may be inferable from circum- 
 stances ;(*) but the latter ground will not extend to acts done in the 
 discharge of general service, and growing out of the usual course of 
 the plaintiflp's employment. {'') 
 
 Acts in obedience to rules, etc. 
 
 The same States as named above, Alabama, Indiana, and Penn- 
 sylvania, have enacted a provision similar to that of the English act 
 covering the acts and omissions (though the latter Avord is not found 
 in the Pennsylvania statute) of any employee of the common em- 
 ployer, done or made in accord with rules and regulations of the 
 employer, or with special instructions given by an authorized person. 
 The proviso of the English act that restricts recovery to cases where 
 there is an impropriety or defect in the rules, etc., is not found in the 
 American enactments. It is probably not to be assumed, however, 
 that the omission is significant of any different effect on the employer's 
 liability than if they had been inserted, as to do so would entail 
 liability without fault, and would tend to make the employer an 
 insurer of the employee's safety, so long as he conformed to rules or 
 instructions. («) The law of Pennsylvania speaks of the act of a 
 fellow-servant instead of " any person in the employ," etc., which is 
 but the adoption of the construction of the Indiana law, where it 
 was said that the language of the law was broad enough to include 
 acts or omissions of the injured employee himself, but that it would 
 be unjust to' so read the law, as this would practically make the 
 employer liable for pure accident. (®) The act was therefore construed 
 as applying only to acts or omissions of fellow-servants. The omis- 
 sion of enjoined duties or disobedience to rules is not within the scope 
 of this clause. C) The clause seems to add little or nothing to the 
 
 "Propst r. Georgia P. E. Co. (ISSS), 83 Ala. 51S, 3 So. 764. 
 2'Marley v. Osborii (1894), 10 Times L. R. 388. 
 '^Bunker v. Jlidland R. Co. (1883), 47 L. T. N. S. 476. 
 ^Mobile & O. R. Co. v. George (1891), 94 Ala. 199, 10 So. 145. 
 '^ Dixon V. W. U. Tel. Co. (1895), 68 Fed. 630 (Indiana statute). 
 f Laughran v. Brewer (1897), 118 Ala. 509, 21 So. 415; Baltimore c& O. S. W. 
 E. Co. V. Little (1897), 149 Ind. 167, 48 N. E. 862. 
 
102 BULLETIN OP THE BUEEATJ OF LABOE. 
 
 employers' duty, under the common law, to maintain a proper system, 
 and to make and enforce suitable rules. The same doctrines as to 
 knowledge of rules, condoning systematic or continuous violation, 
 and of action in emergencies, as are set forth in connection with the 
 discussion of that phase of the common law, are applicable here. 
 
 Acts of certain tm'ployees on railroads 
 
 All the laws of this group except those of Pennsylvania and New 
 York enumerate certain classes of employees on railroads for whose 
 negligence the employer is held liable in a different degree from that 
 fixed by common law. In New York there is a separate section of 
 later enactment which provides for practically the same classes of 
 employees as are named in the English statute, which is in the main 
 followed by the other States, though there is some variety in the lan- 
 guage used. 
 
 The provisions of this clause are additional to those contained iii 
 the clause fixing liability for the negligent acts of superiors, and taken 
 in connection therewith present a practical abrogation of the doctrine 
 of fellow-service as a defense in cases of injury occurring by the negli- 
 gence of those engaged in the oiseration of railroads. 
 
 It was said in an Alabama case (") that the act in no wise relieves 
 an employer from the common-law duty of using reasonable care in 
 selecting emploj^ees; it increases his liability, rather, and makes him 
 responsible for injuries sustained by an employee in consequence of 
 the negligent act of employees of the designated classes, and that 
 without reference to the care and diligence used m their selection. 
 
 Persons in charge or control include those who have the actual phys- 
 ical control of the instrumentalities named as well as those who are 
 intrusted with work of a directive nature. Since, however, superin- 
 tendence is included in the other clauses, it is understood that this 
 provision relates rather to employees not included in them-C") The 
 control may be only temporary, C*) and the negligent manual opera- 
 tion may be performed under the direction of others. (") Who is in 
 charge of an engine, train, or other instrumentality at any particular 
 time is a question of fact, to be determined by the circumstances of 
 the particular case. ('') Nor need the dutj^ be considered to rest en- 
 tirely upon one person, since different duties may be assigned to dif- 
 ferent persons and each be charged with the conduct of the train. (<") 
 
 "Culver V. Alabama M. R. Co. (1805), 108 Ala. 330, IS So. 827. 
 
 !- Birmingham R. & E. Co. v. Baylor (1803), 101 Ala. 488, 13 So. 703. 
 
 « Welch V. New York, etc., R. Co. (1000), 176 Mass. 393, 57 N. E. 668. 
 
 i Louisville & N. R. Co. r. Richardson (1893), 100 Ala. 232, 14 So. 209; Shea v. 
 New York, N. H. & H. R. Co. (1890), 173 Mass. 177, 53 X. E. 396. 
 
 «Haysler v. Great Western R. Co. (1881), 72 Law T. 120; Caron r. Boston 
 & A. R. Co. (1895), 164 Mass. 523, 42 N. E. 112. 
 
EMPIjOYEBS' LIABILITY IBT THE UBTITED STATES. 103 
 
 But a superior who is actually present can not devolve the discharge 
 of his duties upon an inferior so as to make the employer responsible 
 for the latter's negligence. (») 
 
 The words "signals" and "signal points" have been variously 
 defined. The term " signals ". includes mechanical devices (») and 
 torpedoes, (<=) as well as signals transmitted by flags, lanterns, etc,(^) 
 The Wisconsin courts have decided that an interlocking system used 
 to prevent collisions is not a signal. («) As to the Alabama law, 
 court ruled that the comma between the words " signal " and 
 " points " was not properly there, and construed the words as a 
 phrase referring to apparatus and not to locality. (») The English use 
 of the word " points " instead of the term " switch " used in the 
 Vnited States has not been followed. Of the laws mentioned under 
 this general head only those of Alabama and California contain the 
 word " point." In that of the latter State the phrase " switch signal 
 point " occurs, while the Porto Kican law speaks of a " signal switch." 
 How these terms would be defined by the courts does not appear as 
 yet. Switches are mentioned in a number of the laws, but in the 
 Indiana law the only reference thereto is in the phrase " switch 
 j'ard." The court refused to accept the suggestion that the legisla- 
 tive intent was to separate the words by a comma and so give them 
 distinct meanings. (?) The same court held that a switch target, 
 moving automatically with the opening and closing of the switch, is 
 not a signal within the meaning of the act, but that it meant only 
 signals complete within themselves and not subsidiary parts of other 
 devices, (s) 
 
 The laws generally refer to locomotives or locomotive engines, that 
 of Alabama separating the word " locomotive " from the word 
 " engine " by a comma. The question therefore arose whether a sta- 
 tionary engine employed to move cars by means of a rope or cable 
 came within the meaning of the act, but it was held that such an 
 engine was not an engine on the track of a -railway, and so was not 
 included. (''.) A pile driver used on the tracks of a railroad and 
 geared to move by the application of its own power to the axle of the 
 wheels on which it rests is not a locomotive under this act. (') 
 Attempts to make this clause cover the operation of railways on 
 
 "LouisvUle & N. R. Co. v. Goss (1903), 137 Ala. 319, U So. 1007. 
 6 Cogbill i: Louisyille & N. E. Co. (1907), 44 So. 683. (Ala.) 
 « Cowea V. Eay (1001), 108 Fed. 320, 47 C. C. A. 352. 
 <* Richmond & D. R. Co. v. Jones (1891), 92 Ala. 218, 9 So. 27G. 
 "Chicago, St. P., M. & O. R. Co. v. CMcago, M. & St. P. R. Co. (1902), 113 
 Wis. 161, 89 N. W. 180. 
 
 /■Baltimore & O. S. W. R. Co. v. Little (1897), 149 Ind. 167, 48 X. E. 862. 
 
 s Chicago, I. & L. R. Co. v. Barker (1908), 83 N. E. 369. 
 
 '' Whatley .r. Zeuida Coal Co. (1899), 122 Ala. US. 26 So. 124. 
 
 * Jar vis v. Hitch (1903), 161 Ind. 217, 67 X. E. 1057. 
 
1'0'4 BULLETIN OF THE BUREAU ' OF LABOR. 
 
 •which electricity is used as a motive power have not received the sanc- 
 tion of the courts. (") 
 
 Some of the statutes speak of charge or control of a train, others 
 of a car or train, upon a railway. The latter phrase would seem to 
 be explicit, though the Alabama courts hold that the word " car " is 
 applicable also to hand cars-C*) Where the word "train" only is 
 used, the question arises as to what constitutes a train. In a Massa- 
 chusetts case it was held that a number of cars detached from the 
 locomotive, and moving under the impetus given by the locomotive 
 before being detached, formed a train within the meaning of the 
 act.('') The present law of that State is explicit on this point. 
 
 A dummy railroad has been held to be within the act, (*) as is also 
 a temporary track used by a city for hauling gravel. (^) A locomo- 
 tive in a roundjiouse is not " on the track of a railway." (0 
 
 In the fourth subdivision of section 7083 of the Indiana law, recov- 
 ery is allowed for injuries on condition that the injured person Avas 
 " obeying or conforming to the order of some superior at the time of 
 such injury, having authority to direct." The attempt has been 
 made to defeat by means of this clause the claims of employees who 
 Avere injured while in the exercise of their routine duties, on the 
 ground that they were not at the time working under orders; but 
 this contention has not been allowed, the ground being taken that 
 firemen, engineers, and workrnen of like employments, were of neces- 
 sity subordinates, and that action in the line of duty could only be 
 action under the orders of superiors. (") 
 
 . All the laws of this group provide directly or by reference for the 
 recovery of damages where death follows the injuries received. A 
 number of them provide also for the assessment of damages propor- 
 tioned to the degree of the negligence of the employer or of the em- 
 ployee for whose acts he is liable. This is not to be confused with the 
 doctrine of comparatiA'e negligence embodied in a number of recent 
 laws relating to railway employment. 
 
 THE COXOKADO LAW OP 1901. 
 
 This laAV (sections 1511f, ISllg) is the first enactment of a legisla- 
 ture in a jurisdiction where the common laAv prevails to entirely 
 
 "Fallon V. West End St. R. Co. (1808), 171 Mass. 249, 50 N. E. 536; Indinu- 
 Jiliolls & G. E. T. Co. V. Andis (1904), 33 Ind. App. 625, 72 N. E. 145. 
 
 !- Kansas City, M. & B. R. Co. v. Crocker (1892), 95 Ala. 412, 11 So. 262. 
 
 « Carou V. Boston & A. R. Co., supra. 
 
 <! Birmingham R. & E. Co. v. Baylor (1898), 101 Ala. 488, 13 So. 793. 
 
 "CougMin V. Cambridge (1896), 166 Mass. 268, 44 N. E. 218. 
 
 /Perry v. Old Colony R. Co. (1895), 164 Mass. 296, 41 N. E. 289. 
 
 Cincinnati, H. & D. R. Co. r. Thieband (1900), 114 Fed. 918 (C. 0. A.), citing 
 I'ittsburg, etc., R. Co. i\ Montgomery (1898). 152 lud. 1, 49 N. E. 582. 
 
EMPLOYEBS' INABILITY IN THE UNITED STATES, 105 
 
 abolish the defense of coservice. Its scope and effect were set forth in 
 a recent case («) in which the supreme court of the State maintained 
 the constitutionality of the law. In the course of its opinion the court 
 stated that the act in question renders the employer liable for damages 
 resulting from injuries to or death of an employee, caused by the 
 negligence of a coemployee in the same manner, and to the same 
 extent, as if the negligence causing the injury or death was that of 
 the employer. Wliether or not the employer is liable under this act 
 must be determined by each particular case based on its provisions. 
 It does not deprive him of any defense to the liability thereby imposed 
 which, under the established rules of law, could be regarded as 
 sufficient except his own lack of negligence. " For the purpose of pro- 
 viding for the safety and protection of employees in the service of 
 a common employer, the law-making power has the undoubted au- 
 thority to abrogate the exception to the general rule of respondeat 
 superior in favor of the employer, and make him liable to one of his 
 employees for damages caused by the negligence of another employee 
 while acting within the scope of his employment, regardless of the fact 
 that such employees are fellow-servants." 
 
 Thus, far-reaching as this law is in its particular field, the defenses 
 of assumed risks .and contributory negligence remain unaffected, nor 
 is the employee in any way protected from the consequences of pure 
 accident. 
 
 STATUTES AFFECTING EMPLOYMENT ON RAILROADS. 
 
 A very considerable number of States have laws applying specific- 
 ally to the business of railroading, some of them applying to all em- 
 ployees, and some only to those engaged in the operation of the road. 
 These laws range in effect from the slightest possible deviation from 
 the principles of the common law to a complete abrogation of the de- 
 fense of fellow-service, and important changes in those of contribu- 
 tory negligence and of assumed risks. 
 
 The most conspicuous instance of a statute that leaves the employee 
 in practically the same status as is fixed by the common law is that of 
 'New Mexico, which, apart from the doubtful exception as to the ap- 
 plication of the doctrine of contributory negligence after the em- 
 ployee has given notice of defects, would seem to better in no way the 
 condition of an injured employee seeking damages for accidental 
 injuries. 
 
 The constitutionality of laws relating to railroads only has been 
 repeatedly decided in their favor in the face of contentions that they 
 are discriminatory, not affording railroads equal protection with other 
 
 "Vindicator Consol. Gold Min. Co. v. Firstbrook (1906), 36 Colo., 499, 86 
 Pac. 313. 
 
106 BULLETIN OF THE B.tTEEAXJ OF LABOE. 
 
 Inisinessea, and that tbe laws deprive railroad companies of their propr 
 erty without due legal process, thus alleging that snch laws are in con- 
 flict with the fourteenth amendment of the Constitution of the United 
 States. The Kansas statute abrogating the defense of fellow-service 
 was attacked in the United States Supreme Court, (") which declared 
 the law valid, using in part the following language, which shows the 
 general grounds on which such laws are upheld : 
 
 " The greater part of all legislation is special, either in the objects 
 sought to be ascertained by it, or in the extent of its application. 
 Such legislation does not infringe upon the clause of the fourteenth 
 amendment requiring equal protection of the laws, because it is 
 special in its character. When legislation applies to particular bodies 
 or associations, imposing upon them additional liabilities, it is not 
 open to the objection that it denies to them the equal protection of 
 the lawSy if all persons brought under its influence are treated alike 
 under the same conditions. The hazardous character of the business 
 of operating a railway would seem to call for special legislation with 
 respect to railroad corporations, having for its object the protection 
 of their employees as well as the safety of the public. The business 
 of other corporations is not subject to similar dangers to their em- 
 ployees, and no objections, therefore, can be made to the legislation 
 on tixe ground of its making an unjust discrimuiation. It meets a 
 particular necessity, and all railroad corporations are, Avithout dis- 
 tinction, made subject to the same liabilities." 
 
 LAWS APEECTING THE LIABILITY OF OPERATOBS OF MINES. 
 
 Besides the States whose laws embrace the working of mines in 
 enactments of wider inclusion, two, Maryland and Missouri, have 
 statutes that relate only to mining. 
 
 The law of Maryland applies only in case of deatli. It abrogates 
 the defense of coservice, and provides for a proportionate compensa- 
 tion where the negligence of the decedent cooperated with that of 
 the employer or his agents or employees. 
 
 The Missouri law declares a liability for all damages sustained by 
 workmen on account of the negligence of any other agent or employee, 
 but does not affect the defense of contributoiy negligence. Vice- 
 principals and feUow-servants are defined, tlie same distinctions be- 
 ing followed as are observed in the law of this State relating to rail- 
 roads. Indeed, except for the subject-matter, the laws are nearly 
 identical. The mining law does not apply to designated employ- 
 ments above ground. 
 
 The reasoning of the courts applied to statutes relating only to rail- 
 road service, as set forth in the preceding division, may fairly be 
 assumed to apply to laws of this class. 
 
 "Missouri r. R. Co. v. Mackey (ISSS), 12T U. S. 205, 8 Sup. Ct. 1161. 
 
employers' liability in the united states. 107 
 
 states whose laws abrogate the bepense of common 
 
 employment, 
 
 Some grouping of the States is possible on the basis of the scope 
 and effect of their laws. In the first group may be placed those 
 whose laws abrogate the defense of fellow-service, either as relates 
 to all employees in the industries included within their purview, most 
 frequently railroad service only ; or to designated classes of employees, 
 as those engaged in the use and operation of railroads. 
 
 AEKAKSAS. 
 
 Arkansas falls in this class by virtue of the act of 1907, which ap- 
 plies to coal mining as well as to the operation of railroads, and 
 entirely abrogates the defense of fellow-service. The law repeals 
 conflicting acts, without specifying any. It seems probable that this 
 expression would work the repeal of sections 6658-6660, which em- 
 body the superior servant and departmental doctrines, thus restrict- 
 ing but not abrogating the application of the rule of coservice. These 
 sections are retained in this compilation, however, until a judicial 
 decision determines the point. 
 
 FLORIDA. 
 
 The doctrine of comparative negligence, set forth in section 3149, 
 is held(») not to apply to employees, who, by the next section, must 
 be " without fault or negligence." If, however, the injury resulted 
 from the performance of an act in which the injured employee had 
 no part, the presumption is that he is free from fault, and that he 
 may -recover the same as if he were not an employee. (") 
 
 GEORGIA. 
 
 The legislature of Georgia was one of the first if not the first in 
 the Union to enact a law of the class under consideration. Section 
 2297 of the Code of 1895 was enacted in 1855, and is applicable to 
 cases of injury not connected with the running of trains as well as to 
 those which are.^") Section 2321 is a statement of common-law 
 principles ;(") but taken with sections 2297 and 2323, an employee 
 who is injured by the negligence of coemployees may, if himself with- 
 out fault, recover damages, since the risks he assumes are not those 
 occasioned by the incompetence or negligence of other employees. ('') 
 In order to clear itself, hoAvever, the company need only show that its 
 
 « Florida C. & P. R. Co. r. Mooney (1898), 40 Fla. 17, 24 So. 148; Duval v. 
 Hunt (1894), 34 Fla. 85, 15 So. 876. 
 
 6 Thompson v. Central E. & Bkg. Co. (1875), 54 Ga. 509. 
 
 « Campbell v. Atlanta & R. Air Line R. Co. (1873), 53 Ga. 488. 
 
 ''Southern R. Co. v. Johnson (1'901), 114 Ga. 329, 40 S. E. 235. 
 
108 BULLETIN OP THE BUEBAU OF LABOB. 
 
 employees used ordinary and reasonable care, and it is not required to 
 account for the accident. («) The provisions of the law are held to 
 apply to eriployees on street railways. (*) 
 
 The doctrine of comparative negligence expressed in section 2322 
 is construed as indicated for Florida, above, that State having fol- 
 lowed Georgia in the enactment of its law. By section 3830, how- 
 ever, the legislature of Georgia has established a rule that permits 
 recovery, even where the injured person has contributed by his negli- 
 gence to the occasion of the accident that caused the injury. This 
 section has been construed as applying to employees. (") 
 
 As already stated, the general liability law is a statement of the 
 principles of the common law and is, in effect, but a declaration that, 
 except as to railroad emploj^ees, the rules of that law control. 
 
 lOAVA. 
 
 The Iowa statute has been held to cover the operations of a con- 
 struction company running gravel trains while building a rail- 
 road, ('') though the employees of independent contractors can not 
 recover from a railroad company for injuries caused by the negli- 
 gent acts of its employees. («) Without extending references, the 
 following sentences from a recent case(') may be quoted as showing 
 the construction adopted by the supreme court of the State : 
 
 " It has been construed as embracing within its protection all tljat 
 class of employees whose employment ' exposes them to the peculiar 
 dangers and perils attendant upon the use and operation of rail- 
 roads.' Among others found to be entitled to recover have been the 
 section hand, the section foreman, the shop hand, the clinker man, 
 the detective, the gravel shoveler, and the snow shoveler, none of 
 whom had any connection with the train service proper. The kind of 
 labor in which the employee is engaged is not the test of his right of 
 recovery so much as the fact whether, in the performance of that 
 labor, he is, for the time being, exposed to the peculiar hazards 
 which arise from or are connected with the use and operation of the 
 road." Exposure to the risk of the operation of trains without neces- 
 sarily being employed in the actual movement brings the employee 
 within the protection of the law. (») 
 
 "Georgia R. & Bkg. Co. v. Hicks (1895), 05 Ga. 301, 22 S. E. 613. 
 
 » Savannah, T. & I. of H. R. i\ Williams (1003), 117 Ga. 414, 43 S. E. 751. 
 
 "Atlanta Cotton Factory Co. r. Speer (1883), 60 Ga. 137; Hill v. Callahan 
 (1888), 82 Ga. 109. 
 
 "iMcKnight r. Iowa & M. E. Const. Co. (1876), 43 Iowa 406. 
 
 «?vey r. Dubuque & S. C. E. Co. (1866), 20 Iowa 347. 
 
 ^Jensen r. Omaha & St. L. R. Co. (1902), 115 Iowa 404, 88 N. W. 952. 
 
 sPyue r. Chicago, B. & Q. E. Co. (1880), 54 Iowa 223, 6 N. W. 281; Smith v. 
 Humestou & S. E. Co. (1880), 78 Iowa 583, 43 N. W. 545. 
 
employers' liability in the unitei/ states. 109 
 
 The limiting words, " such wrongs," are held to refer to the " neg- 
 lect " and " mismanagement " mentioned, as well as to the " willful 
 wrongs " named subsequently. (<•) Nor does the fact that the negli- 
 gent employee is subject to the control of the plaintiff bar the latter's 
 right to recover. C") 
 
 KANSAS. 
 
 The statute of Kansas, down to the first proviso, is a practical copy 
 of the earliest law of Iowa, which was somewhat broader in terms 
 than the Iowa law now in force. The added matter relates only to 
 procedure and does not affect the liability of the employer otherwise. 
 The same general line of construction as adopted by the courts of that 
 State is followed, though the benefits of the statute extend further 
 than do those of the Iowa law, which the Kansas supreme court de- 
 clared to apply only where the plaintiff or the negligent employee, or 
 both of them, are engaged in the use and operation of a railroad at the 
 time of the accident causing the injury. (") This restriction was held 
 not to exist under the construction of the law of Kansas, and, in the 
 case in hand, a section hand on" whom a fellow-workman let a rail fall 
 was alloAved to recover damages. (<') 
 
 The statute applies to "every railroad company" in the State, 
 which term is construed as including only corporations (which is the 
 word used in the Iowa statute) , and partnerships or individuals en- 
 gaged in railroading are held not to fall within its scope. {^) The 
 query at once arises, in view of the ruling of the Indiana and Missis- 
 sippi courts that a law applying to corporations but not to firms and 
 individuals engaged in the same lines of business is unconstitutional, 
 how such a position is tenable. 
 
 No decision is at hand construing the provisions as to notice, added 
 by amendments <Ai 1903, 1905, and 1907, but according to the general 
 rule previously set forth, they would demand strict observance as to 
 time in order to bring a plaintiff within their terms, while a material 
 rather than formal compliance as to contents of the notice would be 
 required. (") 
 
 MINNESOTA. 
 
 The law of this State, like that of Kansas, is held to apply, not to 
 all employees of railroad companies, nor alone to those engaged in 
 the movement of trains, but to all who are exposed to and subject to 
 injuries by the daiigers peculiar to the use and operation of rail- 
 
 "Malone r. Burlington, C. E. & N. R. Co. (1884), 65 Iowa 417, 21 N. W. 756. 
 SHousei- V. Chicago, R. I. & P. R. Co. (1882), 60 Iowa 230, 14 N. W. 778. 
 « Union P. R. Co. v. Harris (1S85), 33 Kan. 416, 6 Pac. 571. 
 ^Beeson i-. Busenbark (1890), 44 Kan. 669, 25 Pac. 48. 
 ^ Page 95, above. 
 
 30649— Bull. 74—08 8 
 
IIG BULLETIN OF THE BTJEEAU OF LABOB, 
 
 roads. («) Employees of receivers are within its protectioii,(*) 
 as are those of a private corporation operating a logging ra;il- 
 road,(<") or a narroAv-gauge road used in stripping earth in mining 
 operations. (*) Work done in the construction of a yard for use in 
 connection with a line in use by the public is not within the proviso 
 that excepts new roads from the operation of the law. («) Street 
 railways are not within its purview, C) though the operation of hand 
 cars on steam roads is.(^) 
 
 3IISS0UEI. 
 
 While sections 2875 and 2876 are devoted to definitions of vice- 
 principals and fellow-servants, in much the same language as is used 
 in statutes of the nest class considered, section 2873 clearly remoA'es 
 the defense of fellow-service in actions for injuries without reference 
 to the relative grades of the plaintiff and the negligent employee, if 
 the injury is received while the plaintiff is engaged in the work 
 of operating a railroad. This provision includes all work that is 
 directly necessary for running trains over a track, embracing that of 
 section hands. ('') In the case cited a member of a section gang was 
 injured by the negligence of other members of the gang in throwing 
 timbers upon him while he was acting as watchman at a bridge over 
 a street. The constitutionality of the law and its application to em- 
 ployees of a receiver of a railroad company were upheld in a recent 
 case.(*) 
 
 The term "railroad corporation" used in this statute is taken to 
 mean all companies, and individuals as well, owning or operating 
 railroads. (^) The act does not include street railways within its 
 scope. C') The act of 1907 relating to mining has been, in the absence 
 of decisions, sufficiently noticed. (') 
 
 MO'TAXA. 
 
 Chapter 1 of the acts of IdOo of this State presents a brief but 
 comprehensive enactment abrogating the doctrine of fellow-service 
 
 "Pearson r. Cbicago, M. & St. P. E. Co. (1801), 47 Miuu. 0, 40 X. W. 302. 
 ^Mikkelsou v. TruesdaJe (1S95), C3 Mlim. 137, G5 X. W. 260. 
 " Schiis V. Powers-Simpson Co. (1002), 85 Minn. 447, 89 X. W. 68. 
 ''Minnesota Iron Co. v. Kline (1005), 100 V. S. 503, 26 Sup, 159. 
 « Moran v. Eastern R. Co. (1802), 48 Minn. 46, 50 N. W. 930. 
 f Funk V. St. Paul City R. Co. (1S05), 61 Jlinn. 435, 63 X. W. 1099. 
 ffSteffenson v. Chicago, M. & St. P. It. Co. (1891), 45 Minn. 355, 47 N. W. 
 1068. 
 
 ''Callahan v. Railway Co. (1902), 170 Mo. 473, 71 S. W. 208. 
 
 « Powell r. Sherwood (lOOl), 162 JIo. 60.j, 68 S. W. 485. 
 
 i lb. ; citing section 266G, R. S. 
 
 «:Sauis r. St. Louis & M. R. Co. (1003), 174 Mo. 53, 73 S. \V. 686. 
 
 ' See page 106, above. 
 
employees' liability in the united states, 11-1 
 
 in cases of injuries negligently inflicted in connection with the use 
 and operation of railroads. No ease is at hand under this act, but 
 its construction would doubtless be similar to that of the Iowa statute, 
 the language of which it resembles. 
 
 Sections 2660 to 2662 make no addition to the provisions of the 
 common law. 
 
 NEBEASKA. 
 
 The act of 1907 is a restricted law, applicable only to employees 
 who, at the time of injury, are engaged in construction or repair 
 work, or in the use and operation of an engine, car, or train. 
 Within these limits the defense of coservice is abolished. The pro- 
 vision as to defects is practically a statement of the common-law 
 liability, closely resembling the corresponding provisions! in the 
 English act and those following it, to the discussion of which refer- 
 ence may be made. (") The provision as to comparative negligence 
 looks toward the alleviation of the hardships of those cases in which 
 heretofore any contributing negligence has been a bar to recover3\ 
 
 NEVADA. 
 
 The law of 190T is much broader in its scope than that of Nebraska, 
 noted above, in the inclusion of other industries than railroading, as 
 well as of all employees in the included emplojonents without restric- 
 tion. In other respects the two laws are similar. 
 
 NOETH CAROLINA. 
 
 The law of this State is embodied in the Code of 1905, since, 
 though printed as a private law, it is, by its contents and effect, a 
 public statute, and is constitutional. (*) It abolishes entirely the 
 defense of coservice, so that questions of control or rank are imma- 
 terial. (") Where an injury is the result of a defective engine or 
 appliance, the defense of assumed risks is taken away from the em- 
 ployer. ('') In a case involving the application of the law to a private 
 road owned and used by a lumber company, the act was held to 
 apply, (^) the court remarking that it would apply to a street railway 
 as well. 
 
 NORTH DAKOTA. 
 
 The law of 1907 abrogates th« defense of fellow-service in actions 
 for injuries to employees of common carriers, and requires actions 
 
 <^ See pages 96-98, abovei, 
 
 6 Hancock v. Norfolk & W. R. Co. (1899), 124 N. C. 222, 32 S. E. 679. 
 Kinney v. Nortli Carolina E. Co. (1898), 122 N. C. 961, 30 S. E. 313. 
 «Coley V. Nortli Carolina E. Co. (1901), 128 N. C. 534, 39 S. E. 43. 
 eHempMll v. Buck Creek Lumber Co. <19ffl3), 141 N. C. 4S7, 54 S. E. 420. 
 
112 BULLETIN OF THE BUREAU OF LABOK. 
 
 thereunder to be brought within one year from the time the cause of 
 action accrued. In other respects it resembles the Nebraska statute. 
 
 OKLAHOMxV. 
 
 The constitution of this State abrogates completely the defense of 
 fellow-service where injuries occur to any employee of steam or elec- 
 tric railroad companies, of mine operators, or of the receivers of such 
 employers. It also gives to the jury all questions as to assumed risks 
 and contributory negligence. 
 
 SOUTH DAKOTA. 
 
 Chapter 219, Acts of 1907, is identical in its main provisions with 
 the act of North Dakota of the same year. 
 
 TEXAS. 
 
 The law in its present form is a modification of an earlier statute, 
 the changes being for the purpose of meeting judicial suggestions or 
 rulings that the old law did not apply to receiverships nor to the 
 operation of street railways. The present law names both as within 
 its purview. The act resembles the law of Missouri in that while its 
 first section entirely removes the defense of fellow-service in actions 
 by certain classes of employees, succeeding sections are devoted to 
 definitions of vice-principals and fellow-servants along the lines of 
 the superior service and departmental doctrines. Under this law co- 
 service was not allowed as a defense where a switchman was injured 
 by the negligence of his foreman, the making up of a train being a part 
 of the operation of a railroad. (") The operation of a hand car is held 
 to be within the scope of the law. (*) In another case involving the iise 
 of hand cars, however, the supreme court held the company liable for 
 injuries to a member of a section gang who was carrying tools to the 
 tool house, while- other members were taking tools in on a hand car 
 and ran against the plaintiff, causing the injuries complained of, not 
 on the ground that the men were operating a car, but on the ground 
 that they were engaged on a different piece of work. (") On the same 
 ground a bridge gang of five men, divided into two gangs for the pur- 
 pose of moving bales of cotton to allow the repair of the company's 
 cotton platform at a station, were held not to be employed on the 
 same piece of work, where each gang moved its own bale independent 
 of the other. (^) It will be observed that sections 2 and 3 relate to 
 employees generally in the service of a railroad company, and are not 
 restricted in their application, as is the first section. 
 
 ^Missouri, K. & T. R. Co. v. Baker (1900), 58 S. W. 964. 
 'Perez v. San Antoulo & A. P. E. Co. (1902), 07 S. W. 137; Texas & P. R. 
 Co. V. Smith (1902), 114 Fed. 728 (C. 0. A.) 
 c Long V. Chicago, R. I. & T. R. Co. (1900), 94 Tex. 53, 57 S. W. 802. 
 « International & G. N. R. Co. v. Still (1905), 88 S. W. 257. 
 
employers' liability in the united states. 113 
 
 The contention that a section foreman is a vice-principal under 
 section 2 and that no recovery could be had on account of injuries re- 
 ceived by him because of the negligence of the men under his control 
 was not allowed as being against the provisions of section 1 that lia- 
 bility attaches for injuries received in connection with the operation of 
 cars, the injury in the case in hand being caused by the negligent 
 operation of a hand car. ('') The private road of a lumber company 
 is within the scope of the law.(*) A laborer unloading telephone 
 poles from a car moving on the track so as to distribute the poles at 
 proper intervals was held to be employed in operating the cars.(<=) 
 A railroad company is liable for the negligent acts of the foreman 
 of a gang of men working in a yard, where the men under him foj- 
 lowed his instructions which he assisted in carrying out, though his 
 negligence consisted in the improper performance of an act of man- 
 ual labor, he being despite this fact a vice-principal. ("*) The same 
 ruling as to liability was made where a foreman of a section gang 
 had failed of his duty to keep the track clear, leaving an obstacle 
 which was hurled by a passing train against a member of his gang.(«) 
 
 Accepting the cases given as illustrative of the scope of sections 2 
 and 3, it is evident that, taking them with section 1 of the act, the 
 defense of common service is restricted to very narrow limits. The 
 statute expressly declares that it does not modify the defense of con- 
 tributory negligence. There is a later law (chapter 163, acts of 1905) 
 which relates to the third principal defense in actions for injuries— 
 that of assumed risks. As this applies only to suits by employees of 
 the same classes as are embraced in the act of 1897, it will be noticed 
 here. 
 
 A case(^) arose under this act in which it was held that continuing 
 in service while an instrumentality was retained that was being 
 superseded by the employer by a safer device was a case within the 
 scope of the act, and that the employee did not assume the risk. The 
 question as to the constitutionality of the act was answered in the 
 affirmative. 
 
 WISCONSIN. 
 
 The Wisconsin statute, in its amended form, presents essentially 
 the same conditions as are found in the laws of North and South 
 Dakota, and is one of the group of five States which last year em- 
 bodied a provision as to comparative negligence in laws relating to 
 employers' liability. The additions found in the Wisconsin statute 
 
 « Texas & P. K. Co. v. Smith, supra. 
 
 ^Lodwick Lumber Co. v. Taylor (1905), 87 S. W. 358. 
 
 «Mounce v. Lodwick Lumber Co. (1906), 91 S. W. 240. 
 
 ^Missouri, K. & T. R. Co. r. Dean ^1905), 89 S. W. 797. 
 
 c Texas & P. E. Co. r. Carlin (1903), 189 V. S. 354, 23 Sup. Ct. 585. 
 
 t El Paso & S. W. R. Co. v. Foth (1907), 100 S. W. 171. 
 
114 BULLETUSr OF THE BUKEAU OF LABOB. 
 
 relate chiefly to pleading and an explicit statement of the classes 
 of employees affected. Employees in shops and oiEces are exclndied 
 from the operation of the law, and the limitation of one year found 
 in the Dakota statutes is omitted. Section 1816, prior to anieH<Jm«n!t, 
 •was held not to apply to logging railroads, (") and the same con- 
 straction would probably be put on the present law. 
 
 STATES WHOSE LAWS MOBIFY THE DEFENSE OE COMMON 
 
 EMPLOYMENT. 
 
 Another group of States is made up of those whose laws, without 
 abrogating the defense of coservice generally, modify it by incor- 
 porating into their statutes provisions as to the responsibility of the 
 employer for the acts of superior servants or of those in different 
 departments from the injured employee ; or, in other words, statedly 
 adopting the " superior sers^ant " and " departmental " doctrines 
 which were set forth as being followed in certain jurisdictions under 
 the common law. 
 
 CALirOEXTA. 
 
 The amended form of section 1970 of the civil code of California 
 removes this State from the class of those whose statutes were a mere 
 statement of the common law to the group under present consider- 
 ation. There is, of course, no line of State decisions available for a 
 determination of the classes of superiors or of departmental bound- 
 aries, as the amendment was enacted only la^ year. The eonstmc- 
 tion of similar statutes in other States, however, and the lines indi- 
 cated by the common-law decisions will be found suggestive. The 
 provisions of the section extend by its terms to industries generally. 
 The clauses on the subjects of ordinary risks and knowledge are but 
 a statement of common-law principles. 
 
 3IISSISSIPPI. 
 
 The provisions of section 105G of the Code of 190G and of section 
 193 of the State constitution are the same, except that the last sen- 
 tence of the constitutional provision is not reproduced in the statute. 
 In connection with this sentence it may be noted tliat the legislature 
 undertook to enact a law (chapter 87, Acts of 1896; chapter 66, Acts 
 of 1898) in accordance therewith, extending- the application of the 
 law to corporations generally. Tliis was declared a violation of the 
 fourteenth amendment of the Constitution of the United States on 
 the ground that there was no proper classification of industries on the 
 basis of their dangers or otherwise, and that it discriminated between 
 
 " JlcKivergau r. Alexuuder & E. Lumber Co. (1905), 124 Wis. 00, 102 >^ W. 
 332. 
 
empijDyeks' liability in the united states. 115 
 
 employing corporations and individuals engaged in similar lines of 
 baisiiiiesB.('') 
 
 In a case under the pro%asions of the constitution ('') it was said 
 that by the words, " superior agent or officer," were meant persons " of 
 the sort well known as such, and any other person in the company's 
 service, by whatever name, who may be intrusted with the right to 
 control and direct tlie services of others according to his discretion 
 and judgment — one to whom is committed the direction or control of 
 others, for the accomplishment of some end dependent on his inde- 
 pendent orders, born of thie occasion, sprung, from him as director, and 
 not consisting of the mere execution of routine duties in pursuance of 
 fixed rules by various employees, each charged with certain parts in 
 the general performance." In this ease it was held tliat a locomotive 
 engineer was not the superior officer of a brakeman on tlie train. Nor 
 was the foreman of a switch crew liield to be the superior officer of 
 the men under him within the meaning of the law wheire the work is 
 the mere discharge of routine duties. (") In this ease, the court said 
 that under other circumstances the foreman might be the company's 
 agent, so that the question seems to need adjudication for each par- 
 ticular case — a marked defect in this doctrine,, as lias already ap- 
 peared. Departmental bounds are little if any easier of determina- 
 tion. Thus a locomotive fireman is clearly in a different department 
 from a telegraph operator ;(*) but an action by a section hand, in- 
 jured on account of the negligence of a draw tender at a bridge failed 
 on the ground that the latter was not the plaintiff's superior, the 
 question of difference of departments being apparently overlooked. (^) 
 
 The employee of a construction company using cars in its work is 
 not within the protection of the law.C) 
 
 OHIO. 
 
 Section 3365-20 is hardly classifiable as an employers' liability 
 law in the sense in whicli such laws have been discussed here, since 
 it relates chiefly to contracts limiting that liability as it exists at 
 common law. The next section goes somewhat further, though it 
 operates by changing' the rules of evidence rather than by enlarg- 
 ing the duty of the employer. (") It does not affect the defenses of 
 contributory negligence or assumed risks. (") The presumption of 
 knowledge which is chargeable to the company by this section can 
 
 "Ballard v. Mississippi Cotton Oil Co. (1903)., 81 Miss. 507, 34 So. 633. 
 
 » Evans v. Lonisville, N. O. & T. K. Co. (1893), TO Miss. o27, 12 So. 581. 
 
 « Fenwick v. Illinois C. R. Co. (1900), 100 Fed. 247, 40 C. C. A. 369. 
 
 <* Illinois C. R. Co. v. Hunter (1893), 70 Miss. 471, 12 So. 482. 
 
 e Illinois C. R. Co. v. Bisbop, (1899), 76 Miss. 758, 25 So. 867. 
 
 ^Bradford Const. Co. ■;;. Heflia (1906), 88 Miss. 314, 42 So. 174. 
 
 » Hesse V. Columbus, S. & H. R. Co. (1S98), 58 Oliio St. 167, £0 X. E. 354. 
 
116 BULLETIN OF THE BUEEAU OF LABOR. 
 
 be overcome only by actual proof and not by proof of facts that 
 merely raise an opposite presumption. (") Thus it was held that the 
 employment of a competent inspector was not evidence of the dis- 
 charge of the duty of inspection sufficient to rebut the presumption of 
 negligence arising from the fact of an injurj' occasioned by a de- 
 fect. (») 
 
 The absence of a customary appliance comes under the statute the 
 same as would a defective appliance. (°) 
 
 Section 3365-22 embodies the superior servant doctrine, which 
 prevailed in Ohio under the construction put upon the common 
 law by the courts of that State, (<*) and also presents, in a modi- 
 fied and rather peculiar form, the departmental doctrine. The 
 constitutionality of this section and its application to employees 
 of receivers were maintained in a case that was before the United 
 States circuit court of appeals. (^) The law makes superior servants 
 in any department the superior of an employee in a different de- 
 partment who has no power to direct or control in his own depart- 
 ment. Thus a chief inspector of cars, having others under him, is 
 the superior of a brakeman-on a train ;(^) but a sole inspector, with- 
 out subordinates, is the fellow-servant of a brakeman.(^) An 
 engineer on a locomotive, having control of his fireman, is not the 
 fellow-servant of a brakeman on another train, who has control of 
 no one. (*) A train dispatcher is the superior of a locomotive 
 engineer, but a telegraph operator, whose duty it is merely to trans- 
 mit messages, is the, fellow-servant of such engineer. (*) 
 
 The difficulty of construing and applying a law making provision 
 for the superior servant doctrine and the uncertainties involved in the 
 application of the principles of negligence and contributory negli- 
 gence have been adverted to heretofore. They find a striking illus- 
 tration in a long-contested case which arose under the provisions 
 of this section, and which involves both these points. (j) This was a 
 case in which a locomotive fireman was killed by the negligence, as 
 alleged, of the engineer on another train. The case was heard in the 
 United States circuit court, and a judgment in favor of the plaintiff 
 was rendered. The railroad company appealed to the court of ap- 
 peals, which reversed thp judgment on the ground that, on the face 
 of the record, Kane had been guilty of contributory negligence. A 
 
 " Columbus, H. V. & T. R. Co. v. Erick (1894), 51 Ohio St. 146, 37 X. E. 128. 
 
 'Felton V. Bullard (1899), 94 Fed. 781. 
 
 "Crumley v. Cincinnati, H. & D. R. Co. (1806), 12 Obio C. 0. 164. 
 
 ^ See pages 36 and 37, above. 
 
 « Pierce v. Van Dusen (1807), 78 Fed. 693, 24 C. C. A. 280. 
 
 1 Columbus, etc., R. Co. i\ Erick, supra. 
 
 B Felton V. Bullard, supra. 
 
 * Cincinnati, H. & D. R. Co. v. Margrat (1894), 51 Obio St. 130, 37 N. E. 11. 
 
 * Baltimore & O. R. Co. v. Camp (1895), 65 Fed. 952, 13 C. C. A. 233. 
 i Kane v. Erie R. Co. (1906), 142 Fed. 682. (C. C. A.) 
 
employees' liability ISr the united STA'iES. 117 
 
 second trial in the circuit court was had, when the section under con- 
 sideration was declared to be unconstitutional as contravening the 
 provisions of section 2 of article 1 of the constitution of the State, 
 which declares that government is instituted for the equal protection 
 and benefit of the people. The court held that the provisions of the 
 section benefited only such employees in each department as had no 
 subordinates, and that by placing on each train a boy who should be 
 under the charge and control of every other employee, the company 
 could avoid liability for injuries to all other employees. 
 
 From this ruling Kane's administratrix appealed, bringing the case 
 a second time to the court of appeals, which denied the premises of 
 the circuit court, held the law constitutional, and remanded the case. 
 On the third trial in the circuit court the right of recovery was denied 
 on two grounds, one that though the negligent engineer was in charge 
 of his fireman, he was himself subordinate to the conductor of his 
 train, and was not therefore a superior servant within the meaning of 
 the statute ; the second ground was that Kane had been guilty of con- 
 tributory negligence. 
 
 Coming to its third hearing in the court of appeals the' case was 
 reversed on both points. Superior servants were held to be not only 
 those who had entire control of a branch or department, but the term 
 includes those who may be in control of but a single employee. Three 
 factors were held to be involved in a case like the present — a separate 
 branch or department, a superior therein, and a subordinate in an- 
 other branch or department. Separateness of departments is essen- 
 tial in this case, as an engineer, though the superior of his fireman, is 
 a fellow-servant of a brakeman in the same train, though the brake- 
 man is the superior of no one. (") 
 
 Kane had been found guilty of contributory negligence in the first 
 trial by the court of appeals because of his violation of a rule that 
 was put in evidence by the company. Evidence was submitted at the 
 third trial before the circuit court that the rule in question had been 
 in fact abrogated, and it was on the weight of this evidence that the 
 court of appeals reversed the court below on this point. The case 
 was again remanded to the circuit court for proceedings not incon- 
 sistent with the opinion given by the court of appeals, but the results 
 of such proceedings, if any, are not at hand. 
 
 OREGON. 
 
 The act of this State embodies the doctrines of superior service, of 
 different departments, and of liability for the acts of designated 
 classes of employees. The defenses of assumed risks and ■ contribu- 
 
 " Railway Co. v. Shallower (1904), 70 Ohio St. 166, 71 N. e. 279. (An en- 
 gineer on one train and the bralieman on another are not fellow-servants. See 
 the Margrat case, above.) . ■ 
 
118 BULLETIif OF THE BTJKEAU OF LABOK. 
 
 toiy negligence are affected hj the clause as to knowledge of defects 
 not being of itself a bar to actions for injuries. 
 
 SOUTH CAROLINA. 
 
 The constitutional provision as to liability presents practically the 
 same features as are found in the law of Oregon. Engineers and 
 conductors voluntarily operating cars or engines known to be unsafe 
 are, by the statutes, outside of the protection of the clause as to 
 knowledge. Wliile an engineer on a locomotive is a vice-principal 
 of his fireman, he is a fellow-servant of a brakeman on the same 
 train. (") Section 2848 of the Civil Code gives to employees of street 
 railway companies the same rights as are secured by the constitution 
 of the State to railroad employees. 
 
 UTAH. 
 
 This State has enacted a law applying to every class of employ- 
 ment, embodying the superior servant and departmental doctrines. 
 The act is constitutional. (*) Whether miners in different tunnels 
 are or are not fellow-servants is a question of fact for the jury.(*) 
 The statute charges the employer with liability for the negligent 
 acts of vice-principals whether such acts were acts of superintendence 
 or otherwise, and, if performed in the discharge of their duties as 
 employees, whether committed while in the exercise of tlieir authority' 
 or not. (") 
 
 \iRGr!sriA. 
 
 The section of the constitution relating to the liability of emploj'ers 
 and the law on the same subject present features quite similar to 
 the law of Oregon. It relates only to railroad emploj'ments, and 
 enacts the superior servant and departmental doctrines, and fixes 
 liability for the negligent acts of certain classes of employees. The 
 rule of law that knowledge of defects would charge tlie employee 
 with the assumption of risks is abrogated. The defense of eontiibu- 
 tory negligence is expressly retained, except in so far as modified by 
 the provisions of the act. 
 
 The clause as to knowledge not being a bar to action was copied 
 from the Mississippi constitution, (*) and was held, in accordance 
 with the construction placed thereon by the Mississippi Courts, («) 
 not to destroy the defense of contributor}' negligence. Knowledge of 
 defects was held to be still a factor in determining whether the em- 
 ployee acted with a proper degree of caution under the circumstances. 
 Recklessness and carelessness are not licensed by this provision. («) 
 
 "Pagan v. Southern R. Co. (1907), 59 S. E. 32. 
 
 '' Dryburg v. Mercur Gold Miii. & aiill Co. (1808), IS Utab 410, 55 Pac. 367. 
 '•Southern Paciflc Co. r. Schoer (1002), 114 Fed. 460 (C. C. A.). 
 ''Norfolk & W. R. Co. v. Clieatwood's Adm'x. (1905), 49 S. E. 489. 
 f-Buckuer v. Riclimoud & D. R. Co. (1895), 72 Miss. 873, 18 So. 449. 
 
EMPLOTifRS' LIABILITY IN THE TJlsriTED STATES. 119 
 
 EMPLOYEES' LIABILITT UHDEE, THE CIVIL LAW. 
 
 The articles of the Civil Code of Louisiana reproduced in the above 
 compilation closely follow tlie Code Napoleon. As this law is ap- 
 plied in the jurisdictions unaffected by the English common law, it 
 laresents some differences therefrom, chiefly in favor of the employee. 
 In dangerous employments the master is obligated to take " every pre- 
 caution which can be taken " to prevent accidents — " to protect his 
 employees by the best possible means, and even, to some extent, 
 against their own imprudence." The defense of fellow-service is not 
 accepted in sucli jurisdictions, and that of contributory negligence is 
 modified so as to allow recovery in a proportionate amount unless the 
 injured employee's negligence was the sole cause of his injury. Risks 
 are held to be assumed as under the common law. 
 
 It can not be said, however, that these principles prevail in Louisi- 
 ana, as its jurisprudence is affected by the general law of the country 
 and especially by the decisions of the Supreme Court of the United 
 States. The situation may be illustrated by a case {") in which dam- 
 ages were allowed for an injury to an employee. The court cited these 
 articles of the Civil Code, holding that under them the plaintiff was 
 entitled to recovery, " and likewise under the construction of the gen- 
 eral law applicable to master and servant." 
 
 LAWS AFFECTrETG THE DEFENSES OB ASSUMPTION OF EISKS AND 
 CONTBIBUTORY NEGLIGENCE. 
 
 The notes following the reproduced laws of a numher of the States, 
 and certain laws which, in other cases, stand as the only statutory 
 modification of the common-law liability of the employer, are gen- 
 erally to the effect that where enactments relating to specified indus- 
 tries or employments are not complied with, a different degree of 
 liability attaches, or one or both the defenses above named are with- 
 drawn. 
 
 General laws affecting the defense of assumption of risks under 
 "designated conditions have been enacted by the legislatures of Iowa 
 (Acts of 1907, chapter 181) , and of Ohio (Acts of 1904, act, page 547) . 
 In the absence of judicial decisions on these statutes, it will be suffi- 
 cient to point out their similarity to the Texas* statute which was held 
 constitutional in the Foth case. C") The numerous provisions as to 
 restrictive contracts are sufficiently discussed in the early paragraphs 
 of this section. (") 
 
 In concluding this discussion it may not be inappropriate to revert 
 to the statement made in connection with the act of Colorado of 1901, 
 that even the entire abrogation of the doctrine of fellow-service leaves 
 
 "James v. Rapides Lumber Co. (1898 J, 23 So. 469. 
 
 * See page 113, above. 
 
 See pages 92 and 93, above. 
 
120 BULLETIN OF THE BUEEATT OF LABOB. 
 
 the emploj'ee to bear all the consequences of inevitable accident, or 
 the " trade risk," as it is frequently called ; (") also that laws effecting 
 a modification of the doctrine are of small avail as affording certainty 
 of relief since so much is dependent on the details of circujnstance sur- 
 rounding each case. Of this the case of Kane v. Erie R. Co., noted 
 above, is an instance ; while of the law of Texas, Avhich abrogates en- 
 tirely for certain classes of employees and restricts closely for others 
 this same defense, it may be said that it is the basis of an amount of 
 litigation that is probably not surpassed by any law of its kind. 
 
 Statistics of 46,000 industrial accidents collated by the German im- 
 perial insurance office for 1897 show that 29.89 per cent of the acci- 
 dents were due to fault or negligence of the injured employee, 16.81 
 per cent to that of the employer, 4.66 per cent to the joint negligence of 
 theemployer and the injured employee, 5.28 per cent to that of coem- 
 ployees and outside parties, 1.31 per cent to the "Act of God," etc., 
 and 42.05 per cent to inevitable accidents connected with the employ- 
 ment. The impossibility of securing to the workman the needed pro- 
 tection by a mere grant of right of action-for injuries for which the 
 employer can rightly be charged is evident from a consideration of 
 these statistics, as well as from the discussion of the principles of law 
 set forth above. The employer, who is the agent of the public in the 
 matter of production and transportation, should be charged with the 
 duty of so administering industrial undertakings that the burden of 
 the trade risk shall fall on the industry at large, and not be concen- 
 trated on the weakest point — on the individual workman, disabled for 
 service through the mere fact of his employment at the time and place 
 of the occurrence of an inevitable accident, or on the widow and chil- 
 dren of such workman, if the accident results fatally. 
 
 "An instruction to a jury is correct which states that if a jjlaintiff's in- 
 juries were the direct results of an accident incident to the business in which 
 he was engaged, he can not recover. Mobile & O. R. Co. c. George (1891), 04 
 Ala. 100, 10 So. 145. 
 
Cornell University Library 
 HD 7102.U4C59 
 
 The legal liability of employers for inq 
 
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