UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY A TREATISE ON THE LAW OF EMPLOYERS' LIABILITY ACTS BY CONRAD RENO, LL. B. AUTHOR OF A TREATISE ON THE LAW OF NON-RESIDENTS AND FOREIGN CORPORATIONS, ETC. ; MEMBER OF THE BOSTON BAR, AND INSTRUCTOR IN THE SCHOOL OF LAW OF BOSTON UNIVERSITY BOSTON AND NEW YORK HOUGHTON, MIFFLIN AND COMPANY Cjje Ktoerstoe Press, 1896 Copyright, 1896, BY CONRAD RENO. The Riverside Press, Cambridge, Mass., Tf. 8. A. Electrotyped and Printed by H. O. Houghton & Co. PREFACE. THE present stage of development and practical im- portance of Employers' Liability Acts seem to warrant the publication of an American work upon the subject. The English Employers' Liability Act of 1880 has been followed in the United States by the Alabama Act of 1885, the Massachusetts Act of 1887, and the Colorado and Indiana Acts, both passed in 1893. Many decisions of the highest courts in these jurisdic- tions have been rendered in actions brought under these statutes, and many questions are now settled. Though differing somewhat in details, these statutes agree in their main features, and all have the effect of extending the common-law liability of employers for personal injuries suffered by their employees. In some directions, the enlargement of the employee's rights has been considerable. The most important provisions are those which give the employee a right of action against his employer for injuries caused by reason of the negligence of the employer's superintendent, and, in the case of railroad employees, for injuries caused by reason of the negligence of any person having the charge or control of certain railroad instrumentalities. The rights and liabilities peculiar to railroad employees 66VG82 IV PREFACE. and employers are considered in chapter v., and the negligence of superintendents in chapter iv. The author has endeavored to treat the important questions with fulness and thoroughness, in many instances stating the facts of adjudications and the rea- soning of the courts in their own language. Less im- portant matters have been treated with less particular- ity. It is believed that the common-law principles of employers' liability have been stated with sufficient ful- ness to render clear the advance made by the Employ- ers' Liability Acts. More attention has been given to the common law of the States having such statutes than to that of other States. Much care has been given to the discussion of the question relating to what facts will or will not justify the presiding justice in withdrawing the case from the jury, and chapters xii., xiii., and xiv. are devoted to this question. The doctrines of assumption of risk and volenti non fit wjtiria have been fully considered. The Appendix contains the text of the various Em- ployers' Liability Acts, with amendments to January 1, 1896. The Table of Cases Cited contains upwards of nine hundred cases, many of which are cited more than once in support of different propositions. The Index has been carefully prepared. CONRAD RENO. Equitable Building, 150 Devonshire Street, BOSTON, March 20, 1896. TABLE OF CONTENTS. CHAPTER I. GENERAL, PRINCIPLES. SECTION PAGE 1. Employers' Liability Acts liberally construed in favor of em- ployees ........... 1 2. Statutory right not identical with common-law right of action 3 3. Prior English construction followed ...... 4 4. No retrospective operation ....... 5 5. To what classes of employees the Employers' Liability Acts apply 6 6. Contracting out of the statute, or waiving its benefit ... 7 7. Same. Prohibition by statute . . . . . . 9 8. Common-law rules as to exempting employer from liability for negligence .......... 11 9. Agreement by parent of minor employee not to sue employer . 13 10. " Relief fund " agreement not to sue employer ... 13 11. Relation of employer and employee must exist . . . .14 12. Same. Other illustrations ....... 15 13. " As if the employee had not been in the service of the em- ployer" . . 18 14. Actions against municipal corporations . . . . .20 15. Judgment and settlement by consent of next friend of minor employee .......... 21 16. Suits in federal courts under state statute .... 22 17. Same. Adopt construction given to state statute by state court 24 18. Same. Enforcing statutes of other States .... 25 19. Federal courts are not bound by state decisions as to who are fellow-servants ......... 20. Suit in admiralty court for maritime tort ..... CHAPTER H. DEFECTS IN THE CONDITION OF THE WAYS, WORKS, ETC. 21. Statutory provisions and preliminary remarks . . . .29 22. General effect of this clause in Massachusetts ... 30 VI TABLE OF CONTENTS. 23. General effect of this clause in Alabama 32 24. Actual or presumptive knowledge of defect by defendant or his proper officers .......... 33 25. Employee's knowledge of defect or negligence ... 35 26. Defect must be proximate cause of injury 37 27. Accidental and temporary obstruction 38 28. Proper appliances within reach 40 29. Latent defect 42 30. Hidden danger in the ways, works, or machinery . . .43 31. Injury not caused by defect alleged ..... 44 32. Machinery need not be the safest or best known in use . . 45 33. Absence of guards, cleats, rails, etc. ..... 45 34. Same 47 35. Miscellaneous cases 48 CHAPTER III. "WAYS, WORKS, MACHINERY, OR PLANT." 36. Statutory provisions ......... 50 37. Definitions and illustrations ....... 51 38. Machinery " defined 52 39. Temporary structures ........ 53 40. Works in process of construction or destruction . . .54 41. Movable staging owned by defendant ..... 56 42. Movable stairs owned by third person . . . . .56 43. Foreign car used by defendant for its own benefit ... 57 44. Same 59 45. Foreign car not used by defendant, but merely forwarded empty 60 46. Railroad track of connecting road . . . . . .62 47. Railroad track of shipper 63 CHAPTER IV. NEGLIGENCE OF SUPERINTENDENT. 48. Statutory provisions ......... 65 49. Enlargement of employee's common-law rights ... 67 50. Common law respecting superintendent's negligence compared with Employers' Liability Act . . ' . . . . 68 51. Same 70 52. Who are " superintendents " within the meaning of the statute 73 53. Who are not " superintendents " within the meaning of the stat- ute . . . . . . . . . . . 74 54. Same. " Sole or principal " duty . . . .* .76 TABLE OF CONTENTS. Vll 55. Same. Charge or control does not render one a superintendent 78 56. Negligence of employer and superintendent .... 80 57. What is negligence of superintendent. Alabama cases . . 81 58. Same. Massachusetts cases ....... 83 .59. Negligence must be an act of superintendence . . . .85 60. Superintendent doing work of common laborer ... 88 61. Temporary absence of superintendent . . . . .90 62. Instructions upon matters of detail ...... 90 63. Conflicting evidence as to whether person causing injury is a , superintendent : jury to decide ...... 91 64. That superintendent is a careful workman is no defence . . 92 65. Common employment under different employers 93 66. General and special servants ....... 93 67. Injury to superior officer or other employee not under the super- intendence of the negligent superintendent . . . .95 68. Employee liable to co-employee for negligence ... 96 CHAPTER V. LIABILITY PECULIAR TO RAILROAD EMPLOYERS. 69. Scope of chapter, and statutory provisions 97 70. " Train " defined 98 71. " Locomotive engine "......... 100 72. "Car" 101 73. " Upon a railroad " . . . 101 74. Statutory defects in freight-cars, grab-irons, and draw-bars. Blocking of frogs, switches, and guard-rails . . . 101 75. " Charge or control " for temporary purpose .... 103 76. " Charge or control " of train 105 77. Brakeman or other employee may have charge or control of a train 108 78. Different views at common law concerning person in charge or control of train ......... 109 79. Who may have the charge or control of locomotive engine . .111 80. Who may have the charge or control of a car . . . .113 81. Negligence of person in charge or control of signal, switch, en- gine, car, etc 114 82. Railroads operated by receivers 115 83. Same. Prior leave of appointing court to sue . . .116 84. Constitutionality. Discrimination against railroads . . . 116 85. Same 121 Vlll TABLE OF CONTENTS. CHAPTER VI. MISCELLANEOUS POINTS. 86. I. Negligence of person entrusted with duty of seeing that ways, etc., are in proper condition ....... 123 87. Same 125 88. Same. Inspectors of foreign cars ...... 127 89. Same. Road-master and section foreman .... 129 90. Same. Injury to such person himself ..... 129 91. II. Negligence of person to whose orders plaintiff was bound to conform. Alabama cases 130 92. Same. English cases 131 93. III. Injury to employee of independent contractor . . . 134 94. Same. Contractor may act in another capacity . . . 136 CHAPTER VII. ATTRIBUTES PECULIAR TO INJURIES RESULTING IN DEATH. 95. Scope of chapter ......... 137 96. No action for death at common law. Early statutes . . 138 97. Survival of action when the death is not instantaneous, or is preceded by conscious suffering ...... 140 98. Release by widow or next of kin ...... 142 99. Survival of action when death is instantaneous or without con- scious suffering . . . . . . . . . 143 100. Where employee who has consciously suffered leaves no widow or dependent next of kin ....... 144 101. What constitutes instantaneous death, or death without con- scious suffering ......... 146 102. Concurring causes of death, for one of which defendant is not culpable .......... 147 103. Claim for damages as ground for administration . . . 148 104. Same 150 105. Who may sue when employee dies before action is brought . 153 106. Same 155 107. Former suit or judgment by wrong person no bar to suit by right person . ...... . . 156 108. Domestic administrator's right to sue for injury received in another State ......... 157 109. Foreign administrator's right to sue ... . . . 158 110. Same. Author's view ........ 160 111. Who are " dependent " upon the employee .... 162 112. Action by dependent in Massachusetts ..... 163 TABLE OF CONTENTS. IX CHAPTER VILL CONTRIBUTORY NEGLIGENCE. 113. Contributory negligence is a defence ..... 164 1 14. Exposure to sudden and imminent danger .... 166 115. Defendant's responsible employees must use reasonable care to avoid injury to the plaintiff when they know he is in a dangerous position ........ 167 116. Employee's right to rely upon warning from person . . 169 117. Same 171 118. Warning from object 173 119. Inference of due care ........ 174 120. Selecting dangerous mode of performing work when safe way exists ........... 175 121. Same 177 122. Other illustrations of due care and contributory negligence . 179 CHAPTER IX. NOTICE. 123. Statutes relating to notice ........ 182 124. Prior notice necessary 183 125. Written notice required ........ 184 126. Notice in case of instantaneous death ..... 185 127. Notice must show that it was intended as the basis of a claim for damages ......... 185 128. Notice of the "time "of the injury 186 129. Notice of the " place " of the injury 186 130. Notice of the cause " of the injury 187 131. No intention to mislead, etc. ....... 189 132. Notice signed by plaintiff's attorney 190 CHAPTER X. LIMITATION OF ACTIONS. 133. Statutes, etc 191 134. Amendment setting forth new cause of action, filed after stat- ute of limitations has run 192 135. Same. Injury received in another State .... 195 136. Do exceptions or saving clauses in the general statute of lim- itations apply to actions under the Employers' Liability Acts? . . 198 X TABLE OF CONTENTS. 137. Conflict of laws 199 138. Same 201 139. Same. When Employers' Liability Act does not limit time for action . . . . . . . . . . 203 140. Same. When right exists at common law .... 204 CHAPTER XL THE MEASURE OF DAMAGES. 141. Injury not resulting in death ....... 205 142. Injury resulting in death preceded by conscious suffering, or in death which is not instantaneous ...... 207 143. Injury resulting in instantaneous death, or in death not pre- ceded by conscious suffering ....... 208 144. " Assessed with reference to the degree of culpability " . 209 145. In Alabama, damages are limited to the pecuniary loss or in- jury 210 146. When deceased employee is a minor ...... 212 147. Age, health, strength, capacity to earn money, and family of deceased, as elements of damage . . . . . . 212 148. When the deceased leaves a widow or dependent next of kin 213 149. When the deceased leaves no widow or dependent next of kin . 216 150. Colorado rules 218 151. Other cases 219 152. Exemplary or punitive damages ...... 219 153. Excessive damages : how reduced ...... 220 154. Division of damages when employee's negligence has contrib- uted to his injury . . . , . . . . . 221 155. Remote or conjectural damages 222 CHAPTER XII. DIRECTING A NONSUIT ON VERDICT FOR DEFENDANT. I. Defendant's Negligence, 156. Subdivisions of subject and preliminary remarks . . . 223 157. Is mere happening of accident prima facie evidence of negli- gence ? (1) Actions by non-employees at common law . . 226 158. Same. (2) Common-law rule in actions by employees . . 228 159. Slight evidence sufficient, but not mere scintilla . . . 231 160. Automatic starting of machinery 234 161. Inference against defendant when he introduces no evidence . 237 162. What amounts to a "defensive explanation" of the injury . 238 TABLE OF CONTENTS. XI 163. Actions under Employers' Liability Acts. Subdivisions of sub- ject 240 164. (a) Defects in the ways, works, machinery, or plant . . 240 165. Same . . . 243 166. (5) Negligence of a superintendent ..... 245 167. Same 247 168. (c) Negligence of a person in charge or control of any signal, switch, locomotive engine, or train upon a railroad . . 249 169. Same 251 CHAPTER XIII. DIRECTING A NOXSUIT OR VERDICT FOR DEFENDANT (CONTINUED). II. Plaintiff's Contributory Negligence. 170. Tests and illustrations in Massachusetts 254 171. Alabafiaa rules ......... 256 172. Employee's death while in discharge of duty. Massachusetts cases ........ ... 259 173. Same. Alabama cases ........ 262 CHAPTER XIV. DIRECTING A NONSUIT OR VERDICT FOR DEFENDANT (CONCLUDED). III. Assumption of Risk, and Volenti non Jit Injuria. A. DEFECTS IN THE WAYS, WORKS, MACHINERY, OR PLANT. 174. Preliminary observations and subdivisions of chapter . . 266 175. Definitions and illustrations ....... 267 176. Continuance in defendant's employ with knowledge of the risk. (1) English rule 270 177. Same. Same 274 178. Same. Same. Statutory defects 277 179. Same. (2) Alabama rule. Early cases . . . . 278 180. Same. Same. Late cases ....... 280 181. Same. (3) Massachusetts rule. Absence of guard - rail, or other safety appliance 283 182. Obvious danger 286 183. Same. Ignorance of plaintiff, and failure to warn him of in- creased danger ......... 288 184. Same. Work outside of ordinary duty. Finding of due care of plaintiff 290 185. Understanding and appreciation of danger .... 291 Xli TABLE OF CONTENTS. 186. Same. Young and inexperienced employees .... 294 187. Assumption of risk by minor employee .... 296 B. NEGLIGENCE OF A SUPERINTENDENT. 188. No assumption of risk from superintendent's negligence under the statute .......... 298 189. Common-law rule ......... 300 190. Negligence of one having charge or control of signal, switch, locomotive engine, or train upon a railroad .... 302 CHAPTER XV. CONFLICT OF LAWS. 191. Action outside the State of injury upon statute of the Sj:ate of injury ........... 304 192. Same. Not necessary that the State of process should give a remedy for such injury ........ 306 193. Public policy . .308 194. Such statutes are not " penal " laws 310 195. Statute of State of process does not apply to injuries caused and received outside of that State ..... 312 196. Negligence in one State causing injury in another State . 316 197. Injuries received on navigable waters ..... 320 198. Limit of damages recoverable and distribution thereof . . 323 199. Procedure governed by lex fori ...... 324 CHAPTER XVI. EVIDENCE. 200. Fellow-servant's reputation for incompetency .... 328 201. Employer's subsequent acts ....... 329 202. Previous specific acts of negligence 330 203. Evidence of customary negligence 331 204. Evidence of superintendence 331 205. Burden of proving defendant's negligence .... 332 206. Burden of proving due care of employee ..... 333 207. Same. Contrary rule in Alabama and elsewhere . . . 334 208. Burden of proving plaintiff's infancy 336 209. Plaintiff's belief that there was no danger .... 338 210. Attorney's authority to sign and serve notice presumed . . 33^ 211. Expert testimony. Strength of materials, etc. . . . 337 TABLE OF CONTENTS. xiii 212. Rule of railroad company as evidence ..... 339 213. Photograph of place of injury as evidence .... 339 214. Res gestce 349 215. Same. Expressions of existing pain . .... 340 216. Remoteness. Other like facts 341 217. Compromise offers . . . . 341 218. Mortality tables ....... 342 219. Judicial notice. Statutes of other States must be proved in state courts ...... 342 220. Same. When federal courts will take judicial notice of laws of other States . 344 CHAPTER XVII. PLEADING AND PRACTICE. 221. Omission to allege name of superintendent, or other person causing injury 346 222. Undue particularity. Allegation that employer knew of defect 347 223. Allegation of " due " notice .... 348 224. Plea of contributory negligence, and waiver thereof . . 348 225. General issue admits capacity in which plaintiff snes or defend- ant is sued .......... 349 226. Election between statutory counts and joinder thereof . . 350 227. Election between counts at common law and under the statute, and joinder thereof . . . . . . . . 352 228. Joinder of separate causes of action in one count . . . 353 229. " Reporting " case upon nonsuit ...... 353 230. Variance between declaration and proof .... 354 231. Nonsuit no bar to new action ....... 355 232. Power of Supreme Court to render such judgment as the trial court should have rendered ....... 355 233. New trial when verdict is against the evidence . . . 356 234. Restricting new trial to certain issues ..... 357 235. Setting aside verdict by trial court. Number of times allow- able 357 236. Insurance against accidents. Argument of counsel . . 358 237. Allowance of exceptions. Amendment after time for filing original bill ......... 358 238. Same. Proving truth of exceptions ...... 359 239. Whether motion to nonsuit or direct verdict need state partic- ulars 359 240. " Due care " should be explained to jury . . ... 360 241. Trial judge's decision that witness is an expert : when open to revision ...... 360 XIV TABLE OF CONTENTS. 242. Reasonableness of employer's rules is a question of law for the court 361 APPENDIX I. English Employers' Liability Act of 1880 . . . .363 II. Alabama Employers' Liability Act of 1885 ... 367 III. Massachusetts Employers' Liability Act of 1887 . . .369 IV. Colorado Employers' Liability Act of 1893 . . . 373 V. Indiana Employers' Liability Act of 1893 . . . .375 TABLE OF CASES CITED 379 INDEX 397 EMPLOYERS' LIABILITY ACTS. CHAPTER I. GENERAL PRINCIPLES. Section 1. Employers' Liability Acts lib- erally construed in favor of employees. 2. Statutory right not identical with common -law right of action. 3. Prior English construction fol- lowed. 4. No retrospective operation. 5. To what classes of employees the Employers' Liability Acts apply. 6. Contracting out of the statute, or waiving its benefit. 7. Same. Prohibition by statute. 8. Common-law rules as to ex- empting employer from lia- bility for negligence. 9. Agreement by parent of minor employee not to sue employer. 10. "Relief fund" agreement not to sue employer. Section 11. Relation of employer and em- ployee must exist. 12. Same. Other illustrations. 13. "As if the employee had not been in the service of the em- ployer." 14. Actions against municipal cor- porations. 15. Judgment and settlement by consent of next friend of mi- nor employee. 16. Suits in federal courts under state statute. 17. Same. Adopt construction given to state statute by state court. 18. Same. Enforcing statutes of other States. 19. Federal courts are not bound by state decisions as to who are fellow-servants. 20. Suit in admiralty court for mar- itime tort. 1. Employers' Liability Acts liberally construed in Favor of Employees. IN Massachusetts it has been decided that the statute should be liberally construed in favor of employees. 2 EMPLOYERS LIABILITY ACTS. The main purpose of the act, as its title indicates, is to extend the liability of employers, and to render them liable in damages for certain classes of personal in- juries to their employees for which they were not lia- ble at common law prior to the passage of the act. It does not attempt to codify the whole law upon the sub- ject, nor to restrict the employee's right of action to the cases mentioned in the act. If he could have recovered before the passage of the act, he can also recover since its passage. 1 The Alabama Employers' Liability Act has not been construed quite so liberally. In Mobile &c. Ry. v. Hoi- born, 84 Ala. 133, 134, the court by Mr. Justice Clop- ton says : " 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. Notwithstanding, 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 Lovell v. De Bardelaben Coal Co., 90 Ala. 13, 17, the court says by Mr. Justice McClellan : " It [the stat- ute] relates to a class of cases in which before no cause of action existed, to a class of in j uries the damages for which, at common law and under our statutes, had been bartered away before they accrued. The statute was one of enlargement purely. No existing right was 1 Ryalls v. Mechanics' Mills, 150 Mass. 190 ; Coughlin v. Boston Tow- Boat Co., 151 Mass. 92 ; Clark v. Merchants &c. Co. 151 Mass. 352. GENERAL PRINCIPLES. 3 curtailed, limited, or taken away. The only limitations in the act were upon causes of action created by the act, and having no existence outside of it." With respect to the English act of 1880, the rule of construction has been thus stated by Brett, M. R., in Gibbs v. Great Western Ry., 12 Q. B. D. 208, 211 : " This Act of Parliament having been passed for the benefit of workmen, I think it the duty of the court not to construe it strictly as against workmen, but in furtherance of the benefit which it was intended by Parliament should be given to them, and therefore, as largely as reason enables one, to construe it in their favor and for the furtherance of the object of the act." 2. Statutory Right not identical with Common-Law Right of Action. -. The right of an employee to maintain an action against his employer, under the Employers' Liability Act, is not identical with his right to maintain an action at common law. It may be greater or it may be less. 1 In some cases he stands a better chance of recovery at common law than under the statute. In such cases it is best to frame the count on the common-law liability, as then the plaintiff is not obliged to give notice of the injury, and the amount recoverable is not limited. Where the question is doubtful, however, the safer way is to join a common-law count with a count on the statute in the same action. The plaintiff may also de- scribe his cause of action as falling within the terms of 1 Coffee v. New York &c. Ry., 155 Mass. 21, 22 ; Lynch v. Allyn, 160 Mass. 248, 252. 4 EMPLOYERS LIABILITY ACTS. two or more sections or clauses of the statute, in differ- ent counts of the same declaration. 1 3. Prior English Construction followed. As the Massachusetts act is copied verbatim from the English act of 1880, with only a few variations in mat- ters of detail, the construction given to the English act, before the adoption of the Massachusetts act, is im- portant if not controlling in determining the construc- tion to be given to the same terms in the Massachusetts act. 2 The Alabama statute of 1885, as far as it goes, is a substantial copy of the English act of 1880. Some of the provisions of the English act had received judicial construction before the passage of the Alabama act. It has accordingly been held that the subsequent enactment by the Alabama legislature is persuasive evidence of a legislative adoption of the prior English construction. 3 1 Beauregard v. Webb Granite Co., 160 Mass. 201 ; Louisville &c. Ry. v. Mothershed, 97 Ala. 261 ; Highland Avenue &c. Ry. v. Dusenberry, 94 Ala. 413, 418. 2 Ryalls v. Mechanics' Mills, 150 Mass. 190, 191 ; Mellor v. Mer- chants' Manuf. Co., 150 Mass. 362, 363. In Commonwealth v. Hartnett, 3 Gray, 450, it was held that the decisions of the English courts, that the wife of the owner of a building was not within the terms of a statute which prohibited larceny in a building, would be followed in the construc- tion of the later Massachusetts act of the same purport. In delivering the opinion of the court, Metcalf , J., says : " It is a common learning, that the adjudged construction of the terms of a statute is enacted, as well as the terms themselves, when an act which has been passed by the legis- lature of one state or country is afterwards passed by the legislature of another. . . . For, if it were intended to exclude any known construction of a previous statute, the legal presumption is that its terms would be so changed as to effect that intention." Page 451. 3 Mobile &c. Ry. v, Holborn, 84 Ala. 133, 134. GENERAL PRINCIPLES. 5 The rule has been thus stated by Mr. Justice Cole- man, speaking for the court, in Birmingham Ry. v. AUen, 99 Ala. 359, 371 : The Employers' Act, as found in section 2590 and subdivisions, is a substantial if not an exact copy of the English act of 1880. This court is not finally concluded by the decision of any other state court, or the British court, in their con- struction of a similar statute ; but the opinions of learned courts upon similar questions are entitled to great weight, and this is especially true when the stat- ute from which ours was copied had been construed prior to its enactment by our legislature." So, when Congress adopts the language of an English statute, the federal courts will presume that it had in mind the construction given by the English courts, and intended to incorporate it into the statute. 2 So, like- wise, where the legislature of one State adopts the lan- guage of a statute of another State, it is presumed to incorporate the construction given to the statute by the prior decisions of the courts of such other State. 3 4. No Retrospective Operation. The first section of the Massachusetts act of 1887 ex- pressly provides that " where, after the passage of this act, personal injury is caused to an employee," etc., he may maintain an action therefor in the cases specified. It follows that the statute does not give a right of action 1 Citing Armstrong v. Armstrong, 29 Ala. 538. See, also, Kansas City &c. Ry. v. Burton, 97 Ala. 240, 246. 2 Interstate Commerce Com. v. Baltimore &c. Ry. 145 U. S. 263 ; McDonald v. Hovey, 110 U. S. 619. 8 Missouri Pacific Ry. v. Haley, 25 Kans. 35, 53. 6 EMPLOYEES LIABILITY ACTS. for injuries received before its passage. Its operation is merely prospective and not retrospective. The Alabama act of 1885 does not expressly limit its operation to subsequent injuries ; nor does it declare that it shall apply to prior injuries. The well-settled rule in like cases is that, unless there is something in the act to show that the legislature intended to give a new remedy for prior acts of negligence, the statute will be construed as merely prospective in its operation. 1 Ap- plying this rule to the Alabama act, the conclusion is that it does not give a right of action for injuries re- ceived before the statute took effect. But the operation of the statute upon subsequent injuries is not prevented by the fact that the employee was working under a con- tract entered into prior to the passage of the act. 2 5. To what Classes of Employees the Employers' Liability Acts apply. The various statutes differ considerably with respect to the classes of persons entitled to their benefit. The acts of Alabama and Colorado apply to all classes of employees and contain no exceptions. The Massachu- setts act applies to all classes except domestic servants and farm laborers injured by other fellow-employees. 3 The Indiana act applies merely to employees of railroad and other corporations, except municipal, operating in the State, and does not extend to the employees of firms or of individuals. 4 The English act applies to railway 1 Kelley v. Boston & Maine Ry. 135 Mass. 448. 2 Alabama Great Southern Ry. v. Carroll, 97 Ala. 126, 137. 8 Mass. St. 1887, ch. 210, 7. Ind. St. 1893, ch. 130, 1. GENERAL PRINCIPLES. 7 servants, and to any person to whom the Employers and Workmen Act, 1875, applies. 1 A state statute, giving a right of action for a personal injury in general terms, applies to citizens of other States injured within the State, as well as to citizens of the State in question. It has even been intimated that a statute which purported to limit the right to citizens of the State, and to exclude citizens of other States, would contravene section 2 of article 4 of the United States Constitution, declaring that " the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." 6. Contracting out of the Statute, or waiving its Benefit. In England it has been held that it is not contrary to the policy of the statute to allow an employee to waive the benefit of the act by contract, and that such a con- tract is binding not only upon the employee himself, but also upon his representatives. 3 In the English act of 1880, under which Griffiths v. Dudley, 9 Q. B. D. 357, was decided, there was no clause prohibiting the making of such a contract. In Alabama, however, under its Employers' Liability Act, although it contains no clause expressly avoiding contracts waiving the benefit of the act, it has been held that such a contract is void as contrary to public policy. In Hissong v. Richmond &c. Ry., 91 Ala. 514, 1 43 & 44 Viet. c. 42, 8. See Morgan v. London Omnibus Co., 13 Q. B. D. 832 ; Yarmouth v. France, 19 Q. B. D. 647. 2 Jeffersonville &c. Ry. v. Hendricks, 41 Ind. 48, 71. 8 Griffiths v. Dudley, 9 Q. B. D. 357. But see Baddeley y. Granville, 19 Q. B. D. 423, 426, 427. 8 EMPLOYERS' LIABILITY ACTS. a switchman was injured while coupling cars, through the negligence of the engineer. One of the conditions of the contract of employment was " that the regular compensation paid for the services of employees shall cover all risks incurred, and liability to accident from any cause whatever. If an employee is disabled by ac- cident or other cause, the right to claim compensation for injuries will not be recognized." In holding this contract void, the court, by Clopton, J., says on page 517 : " The statute makes the employer answerable in damages when an employee is injured in any of the classes of negligence specified therein. Such a stipula- tion, being in contravention of the statutory provisions, is opposed to public policy, and does not avail to secure non-liability for an injury caused to an employee by defendant's own negligence or misconduct in the cases specified in the statute," 1 This view is more in line with the general current of authority, and seems better than the English doctrine. In line with these decisions, it has been subsequently held that the rights and liabilities conferred and im- posed by the statute do not spring from the contract of employment, and that the only office of the contract is to establish the relation of master and servant. " Find- ing this relation, the statute imposes certain duties and limitations on the parties to it, wholly regardless of the stipulations of the contract as to the rights of the parties under it, and, it may be, in the teeth of such stipulations." It was accordingly held that the inak- 1 See, also, Richmond &c. Ry. v. Jones, 92 Ala. 218. 2 Alabama Great Southern Ry. v. Carroll, 97 Ala. 126, 138, per Mc- Clellan, J., for the court. GENERAL PRINCIPLES. 9 ing and part performance of the contract of service in Alabama did not give an employee a right of action under the Alabama statute for an injury received in Mississippi, in which latter State there was no Employ- ers' Liability Act. 7. Same. Prohibition by Statute. In Indiana, whose act applies to all corporate em- ployers except municipal corporations, the fifth section provides that " All contracts made by railroads or other corpora- tions with their employees, or rules or regulations adopted by any corporation 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." In Iowa the railroad act declares that " no contract which restricts such liability shah 1 be legal or bind- In Massachusetts a statute passed in 1877, ten years prior to the Employers' Liability Act, declares that "No person or corporation shall, by a special con- tract with persons in his or its employ, exempt himself or itself from any liability which he or it might other- wise be under to such persons for injuries suffered by them in their employment, and which result from the employer's own negligence, or from the negligence of other persons in his or its employ." 3 1 Indiana Acts of 1893, ch. 130, 5, March 4, 1893. 2 Iowa Rev. Code 1880, 1307. See, also, Texas Acts of 1891, ch. 24, 3 ; Florida Acts of 1891, No. 62, May 4, 1891 ; Wyoming Acts of 1891, ch. 28. Pub. Sts. ch. 74, 3 ; St. 1877, ch. 101, 1. 10 EMPLOYERS' LIABILITY ACTS. Though the point has not yet been raised, it would probably be held that this statute applies to a right of action conferred by the Employers' Liability Act, as well as to a right of action existing independently of that act. In either case, a contract exempting the employer from liability would be probably void, and no defence to an action. In 1894 this statute was reen- acjted in the same terms. 1 In actions under Mass. Public Statutes, ch. 112, 212, giving a right of action for the benefit of the widow and children or next of kin of a person killed by the negligence of a railroad company, it has been decided that a release of damages given by the deceased does not release the company from liability or prevent a re- covery, because the amount recovered is " in substance 1 St. 1894, ch. 508, 6. But a contract that an employee will not hold the employer liable for the obvious risks of the business which he undertakes is not within the meaning of this statute and is valid, because an employer is not liable for an injury caused by an obvious danger, either at common law or under the Employers' Liability Act. In O'Maley v. South Boston Gas Light Co., 158 Mass. 135, at 137, Knowlton, J., says for the court : " We have no doubt that one may expressly contract to take the obvi- ous risks of danger from inferior or defective machinery, as well since the enactment of this statute [Employers' Liability Act] as before. If he does so, his employer owes him no duty in respect to such risks, and, if he is hurt from a cause included in the contract, the defect is not within the terms of the statute ; the maxim, Volenti non jit injuria, ap- plies, and he cannot recover." The point decided in the case just cited was that the law implied such a contract ; and that an employee could not recover for an injury received in falling off his employer's coal-run, which was not protected by a guard. When, however, the employer has committed a breach of an express stat- utory duty, the maxim does not apply, and will not relieve him from lia- bility under the Employers' Liability Act. Baddeley v. Granville, 19 Q. B. D. 423. GENERAL PRINCIPLES. 11 a penalty given to the widow and children and next of kin, instead of to the Commonwealth." 8. Common-Law Rules as to exempting Employer from Liability for Negligence. Irrespective of statute it has been generally held in the United States that a contract made in advance whereby an employee agrees to release and discharge his employer for any injury he may receive by reason of the negligence of his employer, or of his servants, is contrary to public policy and void. 2 A contrary rule prevails, however, in Georgia. 3 In Bailey on Master's Liability, the Georgia rule is approved ; and it would seem that the learned author is of opinion that a state statute which expressly prohibits the making of such a waiving contract is itself contrary to public policy and void, as applied to such risks as the employee impliedly assumed at common law. Thus, on pages 478, 479, it is said : " Courts, in giving to such statutes the force of prohibiting the assumption of those risks by express terms in a contract which were impliedly assumed at common law by the ordinary con- tract of service, upon the ground that such contracts are 1 Doyle v. Fitchburg Ry., 162 Mass. 66, 71, per Morton, J. See, also, Commonwealth v. Vermont &c. Ry., 108 Mass. 7. 2 Roesner v. Herman, 8 Fed. Rep. 782 ; Railway Co. v. Spangler, 44 Ohio St. 471, 8 N. E. 467 ; Kansas Pacific Ry. v. Peavey, 29 Kans. 169 ; 8. c., 34 Kans. 472 ; Little Rock &c. Ry. v. Eubanks, 48 Ark. 460 ; 3 S. W. Rep. 808 ; 2 Thompson on Neg. 1025 (criticising Western &c. Ry. v. Bishop, 50 Ga. 465, and later Georgia cases) ; Johnson v. Richmond &c. Ry. 86 Va. 975 ; Richmond &c. Ry. v. Jones, 92 Ala. 218 ; Purdy v. Rome &c. Ry. 125 N. Y. 209. 8 Western &c. Ry. v. Bishop, 50 Ga. 465 ; Fulton Mills v. Wilson, 89 Ga. 318. 12 EMPLOYERS' LIABILITY ACTS. against public policy, must in effect declare that the common law was against public policy." And on page 480 it is said : " An act cannot be made against public policy by a simple declaration that it is so." The learned author seems to overlook the well-settled principles of law that the legislature, and not the court, is the final judge of public policy ; that it has the power to change the rule of public policy at any time, whether the former rule was of common law or of .statutory origin ; that the legislature's decision upon this question is binding upon the courts ; and that no statute can be declared void by the courts on the ground that it is contrary to public policy. 1 In the License Tax Cases, ubi supra, Mr. Chief Jus- tice Chase, in delivering the opinion of the court, says on page 469 : " The legislature has thought fit, by en- actments clear of all ambiguity, to impose penalties for unlicensed dealing in lottery tickets and in liquors. These enactments, so long as they stand unrepealed and unmodified, express the public policy in regard to the subjects of them. The proposition that they are contrary to public policy is therefore a contradiction in terms, or it is intended as a denial of their expedi- ency or their propriety. If intended in the latter sense, the proposition is one of which the courts cannot take cognizance." In the City of Norwich, 118 U. S. 468, 495, in which it was held that insurance is no part of a shipowner's interest in the ship or freight within the meaning of 1 License Tax Cases, 5 Wall. 462 ; Powell v. Pennsylvania, 127 U. S. 678, 685 ; Sharpless v. Mayor, 21 Pa. St. 147, 159 ; Hedderick v. State, 101 Ind. 564 ; Mobile v. Yuille, 3 Ala. 137. GENERAL PRINCIPLES. 13 the Limited Liability Act of 1851 (U. S. Rev. Stats. 4282-4287), the court says by Mr. Justice Bradley : " The truth is, that the whole question, after all, comes back to this : Whether a limited liability of shipowners is consonant to public policy or not. Congress has declared that it is, and they, and not we, are the judges of that question." 9. Agreement by Parent of Minor Employee not to sue Employer. A release of all claim for damages for personal in- juries which may be received by a minor child of the releasor, while in the employ of the defendant, may bar an action by the parent ; but it will not prevent the minor from recovering damages estimated from the time of reaching majority to the probable time of his death. 1 10. " Relief Fund " Agreement not to sue Em- ployer. A contract by which an employee may either accept the benefit of a relief fund made up of contributions from the employer and employees, or sue for damages for a personal injury caused by the employer's negli- gence, is not contrary to public policy, and if after in- jury the employee accepts money from such relief fund, he waives the right to sue, and cannot recover damages for his injuries. 2 Even if the employee is a minor, such a contract is 1 International &c. Ry., v. Hinzie, 82 Texas, 623. 2 Lease v. Pennsylvania Ry., 10 Ind. App. 47 ; Spitze v. Baltimore &c. Ry., 75 Md. 162 ; 23 Atl. Rep. 307 ; Martin v. Baltimore &c. Ry., 41 Fed. Rep. 125 ; State v. Baltimore &c. Ry., 36 Fed. Rep. 655 ; Owens v. Balti- more &c. Ry., 35 Fed. Rep. 715. 14 EMPLOYEES' LIABILITY ACTS. binding upon him if it entitles him to receive the bene- fits of the relief fund, both where the employer is and is not liable at law for the injury. It is considered to be to the minor's advantage, and he cannot recover damages of the employer either at common law or under the Employers' Liability Act of England. 1 11. Relation of Employer and Employee must exist. To maintain an action under the Employers' Liability Act, the person injured must have been in the employ of the defendant at the time of the injury, 2 and must also have been doing the work of the defendant, and not that of some one else, at that time. 3 The statutes of Massachusetts and of Colorado contain a qualifica- tion of this rule, however, and render the employer of an independent contractor liable in certain cases to the employees of such contractor. 4 In Tennessee Coal Co. v. Hayes, 97 Ala. 201, the plaintiff's father was employed by the defendant rail- road to load its coal cars at a certain price per car. The plaintiff was a minor, and was working under a request of the defendant's superintendent made to his father to assist the latter. The plaintiff's name was not on the defendant's pay-roll, and his father received his 1 Clements v. London &c. Ry., [1894] 2 Q. B. 482. In Flower v. Lon- don &c. Ry., [1894] 2 Q. B. 65, a contract between a boy of thirteen years of age and the defendant railroad, whereby the road agreed to let him travel on the line at special rates, and he exempted it of liability for negligence, was held not binding on the minor, because it was to his detri- ment. 2 Dane v. Cochrane Chemical Co., 164 Mass. 453 ; Georgia Pacific Ry. v. Propst, 85 Ala. 203. 3 Dean v. East Tennessee &c. Ry., 98 Ala. 586. 4 Tooiney v. Donovan, 158 Mass. 232 ; post, 93, 94. GENERAL PRINCIPLES. 15 pay. It was held that the plaintiff was an employee of the defendant within the meaning of the Employers' Liability Act, and was entitled to its benefit. In Wild v. Waygood, [1892] 1 Q. B. 783, the plain- tiff was in the general employ of a builder who was en- gaged in erecting a house. The defendant contracted with this builder to construct a lift in the house, and sent a joiner named Duplea to do the work. Duplea requested the builder's foreman to lend him a man to assist him, and the foreman sent the plaintiff for that purpose. There was some evidence that the defendant agreed to pay the plaintiff's wages while he was so en- gaged. Upon the third day of his employment, the plaintiff was injured through the negligence of Duplea. It was held that this evidence would warrant a find- ing that the relation of employer and employee existed between the parties, and that the defendant was liable under the English act of 1880. 12. Same. Other Illustrations. The mere fact that the defendant retains the right to decide how work shall be done on his premises, in his agreement with another person who hires and pays the plaintiff to do the work, does not show that the relation of employee and employer exists between the plaintiff and the defendant. In Dane v. Cochrane Chemical Co., 164 Mass. 453, the plaintiff was injured through the negligence of one Johnson, and he alleged that Johnson was in the employ of the defendant as su- perintendent. The defence was that Johnson was not in the defendant's employ, but was an independent contractor, who had hired the plaintiff, and that the 16 EMPLOYERS' LIABILITY ACTS. relation of employee and employer did not exist between the plaintiff and the defendant. The testimony showed that Johnson was employed by the defendant under a continuing contract to do carpentry work which became necessary from time to time. He hired the men to do this work, among others the plaintiff, and he superintended, paid, and discharged them. The defendant paid Johnson $2.50 a day for his work, and 25 cents a day for each man employed by Johnson in addition to the amount which Johnson agreed to pay the men. Johnson furnished the tools and the defendant the material required for the work. The account between Johnson and the defendant was usually settled monthly, and Johnson paid his work- men every Saturday. Their names were not on the defendant's pay-roll, nor were they ever paid by the defendant. There was testimony which would justify the jury in finding that the defendant determined what repairs and alterations requiring carpentry work should be made, and when and how they should be made, al- though, when it decided upon what repairs and altera- tions were to be made, it usually left the manner of making them to the discretion of Johnson. It did not appear that Johnson was authorized to hire workmen on account of the defendant, or that the workmen hired by him ever understood that they were to be paid by the defendant, or that the defendant or Johnson so un- derstood the matter. It was held in an action under the Employers' Liability Act that the evidence would not warrant the jury iri finding that the plaintiff was in the employ of the defendant, and that the defend- ant was not liable. The test which seems to have GENERAL PRINCIPLES. 17 controlled the court in reaching this conclusion is thus stated by Mr. Chief Justice Field, on pages 456, 457 : " Could the plaintiff have recovered his wages of the defendant if they had not been paid by Johnson ? Did Johnson hire the plaintiff on his own account, or as agent for the defendant ? . . . The fact that the defendant retained the right to decide how work should be done on its premises does not of itself make the workmen employed by Johnson employees of the defendant. Apparently Johnson employed whom he pleased, and directed the men employed by him in the performance of their work, whether upon the premises of the defendant or upon other premises where he might be doing work. On the evidence we do not think that the jury could properly find that the rela- tion of employee and employer existed between the parties." The performance of a single casual service by the plaintiff^ at the request of the defendant's conductor, does not create the relation of employer and employee between the parties. In Georgia Pacific Ry. v. Propst, 85 Ala. 203, a night-watchman was requested by the conductor of a freight train to make a coupling, and, while attempting to do so, was injured. On a former appeal of this case it was held that in case of emergency the conductor had implied authority to hire brakemen, 1 and the plain- tiff contended that the conductor's request to couple the cars constituted a contract of employment which was binding upon the defendant. But the court held that " more is essential than a mere order or request to 1 Georgia Pacific Ry. v. Propst, 83 Ala. 518. 18 EMPLOYERS' LIABILITY ACTS. couple cars at one time and place, or doing a single act, to constitute an employment within the scope of the implied authority of the conductor. It must be to ren- der service to some extent continuous in its nature." l It was accordingly decided that the plaintiff could not recover under the statute. As to when the relation of employer and employee does or does not exist, see, also, the cases cited below. 2 13. "As if the Employee had not been in the Ser- vice of the Employer." The Massachusetts act provides that in certain speci- fied cases an employee shall have the same right of compensation and remedies against his employer " as if the employee had not been an employee of nor in the service of the employer, nor engaged in its work." 3 " In other words, in the cases specified the defence of common employment with the person through whose negligence the injury was caused is taken away." 4 The Alabama act of 1885 declares that the employer 1 Per Clopton, J., for the court, p. 207. 2 Shea v. Gurney, 163 Mass. 184 ; Morgan v. Sears, 159 Mass. 570 ; Reagan v. Casey, 160 Mass. 374 ; Huff v. Ford, 12& Mass. 24 ; Forsyth v. Hooper, 11 Allen, 419 ; Johnson v. Boston, 118 Mass. 114 ; Kimball v. Cushman, 103 Mass. 194 ; Ward v. New England Fibre Co., 154 Mass. 419 ; Corbin v. American Mills, 27 Conn. 274 ; Hexamer v. Webb, 101 N. Y. 377 ; McCafferty v. Spuyten-Duvil &c. Ry., 61 N. Y. 178 ; Speed v. Atlantic & Pacific Ry., 71 Mo. 303 ; Schwartz v. Gilmore, 45 111. 455 ; Cincinnati v. Stone, 5 Ohio St. 38 ; Railroad Co. v. Banning, 15 Wall. 649 ; Water Co. v. Ware, 16 Wall. 666 ; Philadelphia &c. Ry. v. Bitzer, 58 Md. 372 ; Phillips v. Chicago &c. Ry., 64 Wis. 475 ; Cameron v. Nys- trom, [1893] A. C. 308. 8 St. 1887, ch. 270, 1, cl. 3. 4 Coffee v. New York &c. Ry., 155 Mass. 21, 22, per Allen, J., for the court. GENERAL PRINCIPLES. 19 is liable to the employee " as if he were a stranger, and not engaged in such service or employment." In con- struing this clause, the Supreme Court of Alabama has said: " The expression, * as if he were a stranger,' is inapt, and literally interpreted, would put the employee in the position of a trespasser, or mere licensee ; but it is apparent that such is not the intention, shown by the succeeding words, ' and not engaged in such service or employment.' The purpose of the statute is, to protect the employee against the special defences growing out of, and incidental to, the relation of employer and employee ; and the result is to take from the employer such special defences, but to leave him all the defences which he has by the common law against one of the public, not a trespasser nor a bare licensee." In Thomas v. Quartermaine, 18 Q. B. D. 685, 700, Fry, L. J., says : " If the workman is to have the same rights as if he were not a workman, whose rights is he to have ? Who are we to suppose him to be ? I think that we ought to consider him to be a member of the public entering on the defendant's property by his invi- tation." In the same case Bowen, L. J., says on pages 693, 694 : " The true view in my opinion is that the act, with certain exceptions, has placed the workman in a position as advantageous as, but no better than, that of the rest of the world who use the master's premises at his invitation on business. If it has created any further or other duty to be fulfilled by the master, I do not know what it is, how it is to be defined, or who is to define it." 1 Mobile &c. Ry. v. Holborn, 84 Ala. 133, 136, per Clopton, J. 20 EMPLOYERS' LIABILITY ACTS. 14, Actions against Municipal Corporations. The Massachusetts and Alabama acts apply to cities and towns, and give a right of action against them to their employees in certain cases, as for negligence in digging a trench. 1 The statute, however, merely gives the employee " the same right of compensation and remedies against the employer as if the employee had not been an employee of nor in the service of the employer, nor engaged in its work." His rights are no greater than those of a travel- ler on a public highway within the limits of the city or town. When the act complained of is the neglect of a public duty imposed upon the city or town by law for the benefit of the public, and from the performance of which it receives no profit or advantage, it is not liable in damages for a personal injury received either by a traveller 2 or by an employee. Hence, where a lineman employed on the fire-signal system of a city was injured by the breaking of a pole to which the wires were attached, it was held that the city was not liable under the Massachusetts act, though the breaking was due to the negligence of the city. 3 So, where a city employee is injured through the negligence of the superintendent or assistant superintendent of streets, it has been held in Massachusetts that the city is not liable under the Employers' Liability Act, because the negligence was 1 Connolly v. Waltham, 156 Mass. 368 ; Conroy v. Clinton, 158 Mass. 318 ; Hennessy v. Boston, 161 Mass. 502 ; Sheffield v. Harris, 101 Ala. 564 ; 14 So. Rep. 357. 2 Hafford v. New Bedford, 16 Gray, 297 ; Fisher v. Boston, 104 Mass. 87 ; Hill v. Boston, 122 Mass. 344. 8 Pettingell v. Chelsea, 161 Mass. 368. GENERAL PRINCIPLES. 21 that of a public officer, and the statute does not change the law of agency ; l but the contrary has been decided in Alabama under its statute. 2 But where the duty is not imposed by law, but is voluntarily assumed by the city or town, and especially if it receives payment or part payment from the abut- tors for any special advantages, such as sewers, the duty performed is not a public duty within the meaning of the rule exempting the city or town from liability, and it will therefore be liable to an employee who is injured through its negligence or that of its officers. 3 A town or city may be estopped to deny the legality of the appointment of a superintendent in an action against it by an employee under the Employers' Liabil- ity Act. If the person serves the city in the capacity of superintendent of the work in question, and the city authorities acquiesce in such service and take the benefit of his skill and labor, it will not be heard to deny the legality of his appointment, and it will be responsible for his acts done within the scope of the service. It can- not appropriate the benefit and repudiate the burden. 4 15. Judgment and Settlement by Consent of Next Friend of Minor Employee. Under the Alabama statute it has been held that the next friend of a minor employee cannot compromise a suit brought on behalf of the minor for personal inju- 1 McCann v. Waltham, 163 Mass. 344. 2 Sheffield v. Harris, 101 Ala. 564 ; 14 So. Rep. 357 ; Lewis v. Mont- gomery, 103 Ala. 000 ; 16 So. Rep. 34. 3 Coan v. Marlborough, 164 Mass. 206 ; 41 N. E. Rep. 238 ; Murphy v. Lowell, 124 Mass. 564 ; Child v. Boston, 4 Allen, 41, 52. * Sheffield v. Harris, 101 Ala. 564 ; 14 So. Rep. 357. 22 EMPLOYERS' LIABILITY ACTS. ries, and that a judgment by consent of the next friend is not binding on the minor, and is no bar to another action for the same injury. 1 In Massachusetts the contrary rule prevails, that a judgment entered by consent of the next friend con- cludes the minor, and bars another action by him on the same cause of action, although a settlement made out of court by the next friend, and not approved by the court, does not conclude the minor, and is not ad- missible against the minor either in bar or on the ques- tion of damages. 2 The method now generally practised is to submit the agreement for judgment, signed by the parties, to the court for approval. As to the power of a next friend to compromise a suit, see, also, the cases cited below. 3 16. /Suits in Federal Courts under State Statute. Suits to enforce a right given by the Employers' Lia- bility Act may be brought in the federal courts as well as in the state courts. 4 The fact that the right is un- known to the common law, and is created only by state statute, does not prevent the federal courts from trying the case. Even if the statute declares that the action shall be brought only in a state court, this does not oust the jurisdiction of the federal courts. 5 Nor is it neces- 1 Tennessee Coal Co. v. Hayes, 97 Ala. 201. 2 Tripp v. Gifford, 155 Mass. 108. 8 Clark v. Grout, 34 So. Car. 417 ; Crotty v. Eagle, 35 W. Va. 143 ; Baltimore & Ohio Ry. v. Fitzpatrick, 36 Md. 619 ; Kingsbury v. Buck- ner, 134 U. S. 650 ; Tucker v. Dabbs, 12 Heisk. (Tenn.) 18 ; Miles v. Kaigler, 10 Yerger (Tenn.), 10 ; Smith v. Redus, 9 Ala. 99 ; Isaacs v. Boyd, 5 Porter (Ala.), 388. * Griffin v. Overman Wheel Co., 61 Fed. Rep. 568. 5 Railway Co. v. Whitton, 13 Wall. 270. GENERAL PRINCIPLES. 23 sary that the federal court selected for action should sit within the State whose statute confers the right of ac- tion. As the action is of a transitory nature, the right may be enforced in any circuit court of the United States having jurisdiction of the subject-matter and of the parties. 1 In some cases the federal courts are more favorable to the plaintiff than the state courts. Thus, in those courts the burden is upon the defendant to prove that the plaintiff was not in the exercise of due care at the time of the injury, 2 while in the state courts of Massa- chusetts, 3 and some other States, 4 the burden is upon the plaintiff to show that he was in the exercise of due care at that time. Hence, when the plaintiff fears the defence of contributory negligence or want of due care, he is more likely to recover a verdict in the federal court than in any state court where this rule prevails. Although the strictness of this rule has been relaxed somewhat in Massachusetts in the case of the killing of an employee, when all the circumstances attending the injury are in evidence and they fail to show any fault on the part of the deceased, still that the federal rule is more advantageous for the plaintiff is shown by comparing the case of Griffin v. Overman Wheel Co. 61 Fed. Rep. 568, withTyndale v. Old Colony Ry., 156 1 Dennick v. Railroad Co., 103 U. S. 11 ; Northern Pacific Ry. v. Bab- cock, 154 U. S. 190. 2 Railroad Co. v. Gladmon, 15 Wall. 401 ; Texas & Pacific Ry. v. Volk, 151 U. S. 73, 77. 8 Shea 17. Boston & Maine Ry., 154 Mass. 31 ; Browne v. New York &c. Ry., 158 Mass. 247 ; Murphy v. Deane, 101 Mass. 455. * fcvansville Ry. v. Hiatt, 17 Ind. 102 ; Park v. O'Brien, 23 Conn. 339 ; Merrill v. Hampden, 26 Me. 234 ; Cordell v. N. Y. Central Ry., 75 N. Y. 330 ; Dyer v. Talcott, .16 111. 300. 24 EMPLOYERS' LIABILITY ACTS. Mass. 503 ; Irwin v. Alley, 158 Mass. 249 ; Chandler v. New York &c. Ry., 159 Mass. 589 j and Felt v. Boston & Maine Ry., 161 Mass. 311. 17. Same. Adopt Construction given to State Stat- ute by State Court. When an action for personal injuries is brought in a federal court sitting in the State where the injury was received and under its statute, the federal court is bound to follow the construction given to that statute by the highest state court. This is not a question of general law or jurisprudence, but merely of local law, and 721 of the U. S. Revised Statutes applies to the case. 1 Even when the federal court sits in a State other than that of the injury, the construction given to a statute of the State of injury by its highest court is binding upon the federal courts. A brakeman was in- jured in North Dakpta through the negligence of the conductor. Action was brought in a federal court sit- ting in Minnesota. Under a statute of North Dakota, as construed by its highest court, the common employer was not liable to the brakeman for the negligence of the conductor. The United States Circuit Court of Appeals for the eighth circuit held that this construc- tion was binding upon the federal court and prevented a recovery. 2 1 Bucher v. Cheshire Ry., 125 U. S. 555 ; Detroit v. Osborne, 135 U. S. 492 ; Chicago &c. Ry. v. Stahley, 62 Fed. Rep. 363. This statute provides that " the laws of the several States, except when the Constitution, treaties, or statutes of the United States otherwise re- quire or provide, shall be regarded as rules of decision in trials at com- mon law, in the courts of the United States, in cases where they apply." 1 Stats. 92. 2 Northern Pacific Ry. v. Hogan, 63 Fed. Rep. 102. GENERAL PRINCIPLES. 25 When, however, the action is brought in a federal court sitting in a State other than that in which the injury was received, and under a statute of the State of injury, the federal court is not bound to follow the construction given to that statute by the courts of the State in which it sits, but may enforce the statute of such other State, although the local state courts have refused to enforce it. 1 18. Same. Enforcing Statutes of Other States. In the matter of enforcing a right of action given by a statute of another State for a personal injury received there, the federal courts construe the statute more favorably to the plaintiff than do the state courts of Massachusetts and of some other States. The recog- nition of a statute of another State depends upon the principles of interstate comity, which principles have always been cherished by the federal courts, 2 and some- times disregarded by the state courts. Thus, in Den- nick v. Railroad Co., 103 U. S. 11, it was held that an administrator appointed in New York of a person killed in New Jersey through defendant's negligence could maintain an action in the federal court sitting in New York under a statute of New Jersey which made any person or corporation whose wrongful act, neglect, or default should cause the death of any person liable to an action by his administrator for the benefit of his widow and next of kin. In several state courts, how- ever, like statutes of other States have been refused recognition and enforcement. 3 1 Texas & Pacific Ry. v. Cox, 145 U. S. 593 ; post, 18. 2 Bank of Augusta v. Earle, 13 Peters, 519. 8 Richardson v. New York Central Ry., 98 Mass. 85 ; Woodard t;. 26 EMPLOYERS' LIABILITY ACTS. Again, the question of whether a statute of another State shall be enforced is a question of general law or jurisprudence ; and therefore the federal courts are not bound to follow the construction given to such statute by the courts of the State in which they sit. Hence a decision by a state court, that no action can be main- tained under a statute of another State, is not binding: * c5 upon a federal court sitting in the first State in another like case. In Texas & Pacific Ry. v. Cox, 145 U. S. 593, a freight conductor in the employ of the railroad company was killed in Louisiana through the negligence of the company. His widow brought this action in the United States Circuit Court for Texas to recover damages under the Louisiana statute. Several deci- sions of the Supreme Court of Texas were cited, 1 tend- ing to support the view that an action could not be maintained in Texas on a statute of another State like that of Louisiana. But the Supreme Court of the United States refused to be bound by the Texas deci- sions upon the ground that the question was one of " general law " (page 605), and gave judgment for the plaintiff on the authority of Dennick v. Railroad Co., 103 U. S. 11. In Huntington v. Attrill, 146 U. S. 657, 683, the Cox case was cited by the court in sup- port of the proposition that, " If the suit is brought in a circuit court of the United States, it is one of those questions of general jurisprudence which that court must decide for itself, uncontrolled by local decisions." 2 Michigan Southern Ry., 10 Ohio St. 121 ; McCarthy v. Chicago &c. Ry., 18 Kans. 46 ; Taylor v. Pennsylvania Ry., 78 Ky. 348. 1 Willis v. Missouri Pacific Ry., 61 Texas, 432 ; Texas & Pacific Ry. . Richards, 68 Texas, 375 ; St. Louis &c. Ry. v. McCormick, 71 Texas, 660. 2 See, also, Northern Pacific Ry. v. Babcock, 154 U. S. 190, 198. GENERAL PRINCIPLES. 27 19. Federal Courts are not bound by State Decisions as to who are Fellow-Servants. In the absence of state legislation, the question whether the engineer and fireman running a locomo- tive engine without a train attached are fellow-servants, so as to relieve the railroad company from liability to the fireman by reason of the engineer's negligence, is not a question of local law upon which the federal courts are bound to follow the state decisions, but is one of general law upon which the federal courts may exercise their independent judgment, uncontrolled by local decisions. 1 In delivering the court's opinion in the first case cited below, Mr. Justice Brewer says on page 378 : " But passing beyond the matter of authori- ties, the question is essentially one of general law. It does not depend upon any statute ; it does not spring from any local usage or custom ; there is in it no rule of property, but it rests upon those considerations of right and justice which have been gathered into the great body of the rules and principles known as the ' common law.' There is no question as to the power of the States to legislate and change the rules of the common law in this respect as in others ; but in the ab- sence of such legislation the question is one determina- ble only by the general principles of that law. Further than that, it is a question in which the nation as a whole is interested. It enters into the commerce of the country. 'Commerce between the States is a matter of national regulation, and to establish it as such was one 1 Baltimore & Ohio Ry. v. Baugh, 149 U. S. 368 ; Hough v. Railway Co., 100 U. S. 213, 226. 28 EMPLOYERS' LIABILITY ACTS. of the principal causes which led to the adoption of our Constitution." 20. Suit in Admiralty Court for Maritime Tort. Whether or not an admiralty court sitting within a State where an injury occurs will enforce a new right of action, given by an Employers' Liability Act of that State, has not been decided. It has been held, however, that the admiralty courts will enforce a state statute giving a right of action for death by negligence. If the negligence is a maritime tort, the suit may be maintained either in rem or in personam. 1 1 Holmes v. Oregon &c. Ry., 5 Fed. Rep. 75 ; The Clatsop Chief, 8 Fed. Rep. 163 ; The E. B. Ward, Jr., 17 Fed. Rep. 456. Contra, as to suit in rem, The Vera Cruz, 10 App. Cases, 59. CHAPTER II. DEFECTS IN THE CONDITION OF THE WAYS, WORKS, ETC. Section 21. Statutory provisions and pre- liminary remarks. 22. General effect of this clause in Massachusetts. 23. General effect of this clause in Alabama. 24. Actual or presumptive know- ledge of defect by defendant or his proper officers. 25. Employee's knowledge of defect or negligence. 26. Defect must be proximate cause of injury. 27. Accidental and temporary ob- struction. 28. Proper appliances within reach. 29. Latent defect. 30. Hidden danger in the ways, works, or machinery. 31. Injury not caused by defect alleged. 32. Machinery need not be the safest or best known in use. 33. Absence of guards, cleats, rails, etc. 34. Same. 35. Miscellaneous cases. 21. Statutory Provisions and Preliminary Remarks. SECTION 1, clause 1, of the. Massachusetts act gives a right of action to an employee who receives personal in- jury " by reason of any defect in the condition of the ways, works, or machinery connected with or used in the business of the employer," provided that the defec- tive condition " 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 en- trusted by him with the duty of seeing that the ways, works, or machinery were in proper condition." The Alabama statute has a provision to the same effect, under which it has been decided that the mere 30 EMPLOYEES' LIABILITY ACTS. fact that an employee is injured by reason of a defect in the condition of the employer's ways, works, machin- ery, or plant does not render the employer liable : it must further appear that the defect in the condition " arose from, or had not been discovered or remedied owing to, the negligence of the master or employer, or of some other person in the service of the master or employer, and entrusted by him with the duty of see- ing that the ways, works, machinery, or plant were in proper condition." * It is, however, an essential part of the plaintiff's case to prove a defect in the condition of such ways, works, machinery, or plant ; and if he fails to do so, he cannot recover under this clause of the statute. 2 The question considered in this chapter is, What is a " defect in the condition " within the meaning of this clause ? 22. General Effect of this Clause in Massachusetts. This provision made very little if any enlargement to the rights of an employee as they existed at common law in Massachusetts. It is chiefly a legislative declara- tion of common-law principles. In Ryalls v. Mechanics' Mills, 150 Mass. 190, 194, Mr. Justice Holmes, speak- ing for the court, says : 1 Alabama Code, 2590 ; Memphis &c. Ry. v. Askew, 90 Ala. 5 ; Louisville &c. Ry. v. Coulton, 86 Ala. 129 ; Louisville &c. Ry. v. Davis, 91 Ala. 487. 2 Louisville &c. Ry. v. Binion. 98 Ala. 570, 575. Under the clauses relating to the negligence of a superintendent, or of a person in charge or control of a signal, switch, locomotive engine, or train, it is not necessary to prove a defect in the condition of the ways, works, machinery, or plant. A superintendent's negligence may also consist in allowing a defect to 'arise or to continue in existence. Seaboard Manuf. Co. v. Woodson, 94 Ala. 143. DEFECTS IN CONDITION OF WAYS, WORKS, ETC. 31 " In 1887 [before the passage of the act], it was settled law in Massachusetts that masters were per- sonally bound to see that reasonable care was used to provide reasonably safe and proper machinery, so that, if the duty was entrusted to another and was not per- formed, the fact that the proximate cause of the damage was the negligence of a fellow-servant was no defence. 1 The rule in Wilson v. Merry, L. R. 1 H. L. Sc. 326, practically, if not in terms, had been modified very much in favor of servants." In Spicer v. South Boston Iron Co., 138 Mass. 426, the plaintiff, while in the employ of the defendant, was injured by the breaking of an iron hook, and there was evidence that the hook had a visible flaw or crack in it, which a careful inspection would have revealed. It was held in an action at common law that there was sufficient evidence of negligence on the part of the defendant to support a verdict for the plaintiff. This duty of the employer was not, by the common law of Massachusetts, confined strictly to machinery, but also extended to all appliances and instrumentalities connected with his business. In Snow v. Housatonic Ry., 8 Allen, 441, it was held that a railroad corpora- tion was liable at common law to one of its employees for an injury caused by a want of repair in the roadbed of the railroad. The employer could not escape liability by delegating this duty to some one else, and was liable for its non-performance to every employee who was not himself negligent. 1 Citing Oilman v. Eastern Ry., 13 Allen, 433, 440 ; and Lawless v. Connecticut River Ry., 136 Mass. 1. See, also, Toy v. United States Car- tridge Co., 159 Mass. 313. 2 Citing Rogers v. Ludlow Manuf. Co., 144 Mass. 198, 202. 32 EMPLOYEES' LIABILITY ACTS. So, a railroad company is liable to a brakeman in its employ for an injury caused by a worm-eaten and rotten stake used to hold railroad ties upon a platform car, and to facilitate the passage of brakemen from car to car ; and the facts that the stake was prepared by fellow- workmen, and that the defendant supplied sufficient good lumber for the purpose, will not relieve the defend- ant from liability at common law. 1 The employer was also liable for negligence in failing to provide proper and competent co-employees to carry on his business. Thus, in Gilman v. Eastern Ry., 13 AUen, 433, a railroad company was held liable to one of its car-repairers for retaining in its employ an habitual drunkard as a switchman, whose negligence in failing to properly adjust a switch caused the plaintiff's injury, after it knew, or by the use of due care might have known, that he was a drunkard. The above rules of the common law are still in force in Massachusetts, for the Employers' Liability Act does not repeal or restrict them, but on the contrary it enlarges and increases in certain directions the rights of employees and the liabilities of employers. 23. General Effect of this Clause in Alabama. In Wilson v. Louisville &c. Ry., 85 Ala. 269, 272, the court says by Mr. Justice Clopton : " Under the statute, negligence in causing or failing to discover or remedy a defect is essential to liability. It does not undertake to define what shall constitute a defect or negligence in regard to the condition of the ways, works, machinery, or plant. To determine these mat- 1 Mclntyre v. Boston & Maine Ry., 163 Mass. 189. DEFECTS IN CONDITION OF WAYS, WORKS, ETC. 33 ters, reference must be made to the principles of the common law. Therefore, whether the plaintiff's right to recovery is based on the statutory or common-law liability of an employer, the measure of defendant's duty to plaintiff is essentially the same." 24. Actual or Presumptive Knowledge of Defect by Defendant or his Proper Officers. At common law, an employee cannot maintain an action against his employer for an injury caused by a defect in the ways, works, machinery, or plant, unless the employer knew of the defect, or by the exercise of reasonable care might have known of the defect in time to remedy it before the accident. 1 But the circum- stances may be such as to raise a presumption of know- ledge on the part of the employer, and to relieve the plaintiff of the obligation of proving actual know- ledge ; 2 or they may be such as to charge the employer with negligence in failing to discover and remedy the defect. 3 A like rule prevails in actions under the Employers' Liability Acts. It has been held under the Alabama act that mere knowledge of a defect by the employer, or by the person entrusted with the duty of seeing that the ways, 1 Reed v. Boston & Albany Ry., 164 Mass. 129; Nason v. West, 78 Me. 253 ; Griffiths v. London &c. Docks Co., 12 Q. B. D. 495 ; 8. c., 13 Q. B. D. 259 ; Hayden v. Smithville Manuf. Co., 29 Conn. 548; Carruthers v. Chi- cago &c. Ry., 55 Kans. 600 ; 40 Pac. Rep. 915 ; Atchison &c. Ry. v. Wagner, 33 Kans. 660 ; Wright v. New York Central Ry., 25 N. Y. 562,566. 2 Guthrie v. Maine Central Ry., 81 Me. 572. 3 Moynihan . Hills Co., 146 Mass. 586 ; Toy v. United States Car- tridge Co., 159 Mass. 313 ; Cowan v. Chicago &c. Ry., 80 Wis. 284. 34 EMPLOYERS' LIABILITY ACTS. works, etc., were in proper condition, will not render the employer liable for an injury caused by such de- fect ; it must further appear that a reasonable time had elapsed after the discovery of the defect and before the injury to make repairs, or to remedy the defect. Thus, in Seaboard Manuf. Co. v. Woodson, 94 Ala. 143 ; s. c., 98 Ala. 378, a fireman, while oiling and cleaning a locomotive engine, was injured by a leaky throttle- valve of the engine, which caused it to start up while he was underneath it. One count of his declaration alleged that this defect was known to the superior officers of the plaintiff, and was known to the defendant, but failed to state how long before the injury the defect had been known to the defendant or to the plaintiff's superiors. It was held on demurrer that this count did not state a cause of action, for the reasons above stated. In delivering the opinion, Mr. Justice Walker says, on page 147 : " Unless there had been a rea- sonable opportunity to effect a remedy, it could not be said that the failure to do so was negligent. The defendant must have had sufficient time to remedy the defect after its discovery before it could be chargeable with negligence in failing to effect such remedy. Mere knowledge, without the opportunity to act on it, would not constitute negligence." l Under a like clause in the English act, it has been held that the only defects for which an employer is lia- ble are such as imply negligence on his part, or of some one in his employ entrusted by him with the duty of seeing that the ways, works, machinery, or plant are in proper condition. Therefore, where the plaintiff, while 1 See, also, United States Rolling Stock Co. v. Weir, 97 Ala. 396. DEFECTS IN CONDITION OF WATS, WORKS, ETC. 35 working upon a carding-machine, had his thumb cut off by its slipping through a hole in the disk of the wheel, which kind of wheel was in common use, though there was another kind without holes, it was decided by the court of appeal, Lord Esher, M. R., dissenting, that the plaintiff could not recover, as the defect did not imply negligence. 1 25. Employee's Knowledge of Defect or Negligence. The fifth section of the Massachusetts act declares that- " An employee or his legal representatives shall not be entitled under this act to any right of compensa- tion or remedy against his 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 service of the employer who had entrusted to him some general superintendence." The Alabama and English acts contain the above provision in substance, with the following added at the end thereof : " unless he [the employee] was aware that the master or employer, or such superior, already knew of such defect or negligence." This section does not create a condition precedent, like that of due notice, which the plaintiff must allege and prove has been fulfilled. Knowledge and failure to inform are matters of defence, and the burden is upon the defendant to show them. 2 1 Walsh v. Whiteley, 21 Q. B. D. 371. 2 Connolly v. Waltham, 156 Mass. 368. 36 EMPLOYERS' LIABILITY ACTS. The same rule prevails under the English act. 1 Under the Alabama act the plaintiff is not obliged to allege or prove that he was aware that the defendant had no knowledge of the defect, and that the plaintiff, while having knowledge thereof himself, failed to com- municate the fact to the defendant or to some superior employee. This is purely matter of defence, relating to contributory negligence of the plaintiff, and the defendant must show it. 2 The rule of the common law was that the employee's knowledge of the defect causing the injury was not, as matter of law, conclusive evidence of such want of due care as would prevent a recovery from the employer. This was a question for the jury to decide on all the facts and circumstances of the case. If he informed the proper officer of the defect, and was told that it would be remedied, his subsequent use of the appliance within a reasonable time in the defective condition did not constitute negligence on his part, or an assumption of the risk, which would prevent his recovery. 3 In Alabama, however, it was held at common law 1 Weblin v. Ballard, 17 Q. B. D. 122, 125. 2 Columbus &c. Ry. v. Bradford, 86 Ala. 574. 8 Snow v. Housatonie Ry., 8 Allen (Mass.), 441 ; Ford v. Fitchburg Ry., 110 Mass. 240 ; Hough v. Railway Co., 100 U. S. 213 ; Laning v. New York Central Ry., 49 N. Y. 521 ; Patterson v. Pittsburg &c. Ry., 76 Pa. St. 389 ; Conroy v. Vulcan Iron Works, 60 Mo. 35 ; Flynn v. Kansas City &c. Ry., 78 Mo. 195; Indianapolis &c. Ry. v. Ott, 11 Ind. App. 564; 38 N. E. Rep. 842 ; Clarke . Holmes, 7 H. & N. 937 ; Union Manuf. Co. v. Morrissey, 40 Ohio St. 148 ; Missouri Furnace Co. v. Abend, 107 111. 44 ; Southern Kansas Ry. v. Croker, 41 Kans. 747 ; Greene v. Minne- apolis &c. Ry., 31 Minn. 248. For qualifying cases, see Counsell v. Hall, 145 Mass. 468 ; Lewis v. New York &c. Ry., 153 Mass. 73 ; Westcott v. New York &c. Ry., 153 Mass. 460 ; Levesque v, Jauson, 165 Mass. 16; 42 N. E. Rep. 335. DEFECTS IN CONDITION OF WAYS, WORKS, ETC. 37 that, where an employee knew of a defect and remained at work after the employer had broken his promise to remedy the defect, he was guilty of contributory neg- ligence as matter of law, and could not recover for an injury caused by such defect. 1 In an early case under the statute, it was held that this rule was abrogated by the Employers' Liability Act of 1885, on the ground that it was the intention of the act to remedy the injustice to the employee of requiring him to abandon his employment, or to waive his rights against an employer who has neglected to remedy the defect within a reasonable time after notice thereof. 2 In a later case, however, this decision has been expressly overruled, and it is now held in Alabama that contin- uance in the service of the defendant with knowledge of a defect in the condition of the ways, works, or machinery, though it exists in another department over which the employee has no control, constitutes an as- sumption of the risk after the lapse of a reasonable time for remedying the defect, and that the doctrine of volenti non fit injuria applies, and prevents a recovery under the statute. 3 26. Defect must be Proximate Cause of Injury. The Alabama decisions hold strictly to the rule that when the plaintiff's cause of action is based upon a defect in the condition of his employer's ways, works, machinery, or plant, it must appear that such defect was the proximate and not the remote cause of the injury. 4 1 Eureka Co. v. Bass, 81 Ala. 200. 2 Mobile &c. Ry. . Holborn, 84 Ala. 133. 8 Birmingham Ry. v. Allen, 99 Ala. 359. 4 Tuck v. Louisville &c. Ry., 98 Ala. 150 ; Louisville &c. Ry. v. Binion, 98 Ala. 570. 38 EMPLOYERS' LIABILITY ACTS. In Ashley v. Hart, 147 Mass. 573, the plaintiff and one K, both of whom were journeymen painters, were employed by the defendant to paint another person's house, and were furnished by the defendant with a hanging stage. K omitted to fasten his end of the stage securely, and while it was being lowered into position it fell and injured the plaintiff. In an action under the act it was held that the injury was not caused by a defect in the condition of the stage, but by the negligence of a fellow-servant, and that the plaintiff could not recover. 27. Accidental and Temporary Obstruction. The Employers' Liability Act does not make the employer liable for every accidental and temporary obstruction which arises in the progress of the work. This is not such a defect in the condition of his ways, works, or machinery as is contemplated by the statute. To give a right of action, the defect must be something in the permanent or quasi-permanent condition of the ways, works, or machinery. 1 In O'Connor v. Neal, ubi supra, a pile of rubbish had collected on the floor of a room of which the plain-- tiff, a mason, was pointing the windows. His assistant, a common laborer, placed one end of his staging on this rubbish, so that it rested unevenly on the floor, and when the plaintiff stepped upon the staging it tipped and caused him to fall. In delivering the court's opin- ion, Morton, J., says : " Under the Employers' Liability Act (St. 1887, ch. 1 O'Connor v. Neal, 153 Mass. 281, 283 ; McGiffin v. Palmer's Ship- building Co., 10 Q. B. D. 5 ; May v. Whittier Machine Co., 154 Mass. 29. DEFECTS IN CONDITION OF WAYS, WORKS, ETC. 39 270), the presence of the rubbish on the floor could not be said to constitute a defect in the ways, works, or machinery. It was merely accidental and temporary, and nothing for which the defendants could be held liable." Page 283. In McGiffin v. Palmer's Shipbuilding Co., 10 Q. B. D. 5, a workman was killed by the fall of a heavy ball which had been negligently left in the roadway of the defendants' iron works. It was held that this was a mere temporary obstruction in the roadway, and was not such a defect in the condition of the way within the meaning of the statute, because it was not of a perma- nent or quasi-permanent character. 1 In May v. Whittier Machine Co., 154 Mass. 29, it was held that a pile of small pieces of wood about a foot high and eight and one quarter inches wide, which had been placed in a space between machines in the defendant's works by a fellow-servant, was an obstruc- tion of " an accidental and temporary character," and did not constitute a defect in the condition of the ways for which the employer was liable. The presence of a stone upon a staging used in the construction of a building is not a defect in the condi- tion of the ways, works, or machinery within the mean- ing of the Massachusetts act. 2 In Alabama it was held in an early case that a pile of coal dumped near a railroad track, at the request of a manufacturer of bricks, may constitute a defect in the 1 In this case it was also held that if the person who left the ball in the roadway was the defendant's superintendent, the action could be main- tained under the superintendence clause of this act. See, also, Kansas City &c. Ry. v. Burton, 97 Ala. 240, 248. 2 Carroll v. Willcutt, 163 Mass. 221. 40 EMPLOYERS' LIABILITY ACTS. condition of the " ways " of the railroad company within the meaning of the statute. 1 But this case has been expressly overruled, and the Alabama rule is now sub- stantially like that of England and of Massachusetts. 2 In Kansas City &c. Ry. v. Burton, supra, it was held that a railroad car left on one track in dangerous prox- imity to another track is not a defect in the condi- tion of the " ways " of the employer within the statute, because it is merely a temporary obstruction, and not an inherent part of the ways. 28. Proper Appliances within Reach. An employer who furnishes proper tools or appli- ances, within convenient reach, is not liable to an employee who is injured while using a defective tool or instrument. In supplying proper instruments the employer has done his whole duty, and is not liable either at common law, 3 or under this clause of the statute. 4 In Thyng v. Fitchburg Ry., 156 Mass. 13, a freight brakeman was thrown off a train and killed by its breaking apart, caused by the use of too short a coup- ling-pin. The defendant always kept a supply of pins in the yard and in the caboose of the train, and a proper one could have been found in either of those places by 1 Highland Avenue Ry. v. Walters, 91 Ala. 435, 444. 2 Kansas City &c. Ry. v. Burton, 97 Ala. 240, 247. 8 Carroll v. Western Union Tel. Co., 160 Mass. 152 ; Johnson v. Boston Tow-Boat Co., 135 Mass. 209 ; McKinnon v. Norcross, 148 Mass. 533. 4 Thyng v. Fitchburg Ry., 156 Mass. 13 ; Allen v. Smith Iron Co., 160 Mass. 557. If a superintendent is negligent in not furnishing proper tools or appli- ances, the employer may be liable under another clause of the statute. DEFECTS IN CONDITION OF WAYS, WORKS, ETC. 41 the men who made up the train. In an action under the statute by the brakeman's administratrix, it was held that the failure to select a proper pin under the circumstances was not an act for which the defendant was liable. In Allen v. Smith Iron Co., 160 Mass. 557, a furnace attendant was killed by the breaking of a wooden lever held by a fellow-workman, which allowed the iron door to the furnace to swing down and strike the deceased. There was no evidence that the wooden lever was defective, except that it broke, and had been in use for a long time. The employer kept a stock of lumber of the proper size on hand, and the deceased could have obtained a new lever at any time by asking for it. He was the person in immediate charge of the furnace. In an action under the statute by the administratrix, it was held that the plaintiff could not recover. Holmes, J., for the court, says : " If such a stick can be said to be part of the works or machinery, the defendant's duty to the deceased did not require it to see that he called for a proper one. It was enough that it had proper ones within convenient reach." Page 558. The mere fact that a wooden lever or other instru- ment breaks while in ordinary use is not sufficient evi- dence of a " defective condition," within the Employ- ers' Liability Act, to justify a verdict for the plaintiff. 1 If the machinery or appliances furnished by the employer are defective, he is liable to an employee, who is in the exercise of due care, for an injury caused by such defective machinery or appliances. 2 1 Allen v. Smith Iron Co., 160 Mass. 557. 2 Mooney v. Conn. River Co., 154 Mass. 407. 42 EMPLOYEES' LIABILITY ACTS. 29. Latent Defect. The doctrine is well settled at common law that an employer is not liable for an injury caused by a hidden or latent defect which was not discoverable by the exer- cise of reasonable care or inspection on his part. 1 A like rule applies in actions under the Employers' Liability Act. 2 In Louisville &c. Ry. v. Campbell, 97 Ala. 147, a brakeman was thrown from a train while in motion by the breaking of a brake-rod. The place where the rod broke was about half bright and new and about half rusty and old, showing that the defect had existed for some time. The old break or crack was located under the ratchet-wheel, and between it and the bar or plate of iron on which the wheel rested, and could not have been seen or detected with- out taking out the rod-key underneath, and raising the rod several inches until the point where the crack was rose above the ratchet-wheel. The car had been in- spected in the usual manner on the day of the accident, and during the run of one hundred and fifty miles just prior to the accident the plaintiff had himself applied the brake eight or ten times without noticing anything wrong about it. In an action under the Alabama act, it was held that 1 Louisville &c. Ry. v. Allen, 78 Ala. 494 ; Holland v. Tennessee Coal Co., 91 Ala. 444 ; Roughan v. Boston Block Co., 161 Mass. 24 ; Spicer v. South Boston Iron Co., 138 Mass. 426, 430 ; Ladd v. New Bedford Ry., 119 Mass. 412, 413 ; Ingalls v. Bills, 9 Met. (Mass.) 1 ; Ballou v. Chi- cago &c. Ry., 54 Wis. 257 ; De Graff v. New York Central &c. Ry., 76 N. Y. 125. 2 Louisville &c. Ry. v. Campbell, 97 Ala. 147 ; Coffee v. New York &c. Ry., 155 Mass. 21, 25 ; Roberts & Wallace, Employers' Liability (3d ed.), p. 249. DEFECTS IN CONDITION OF WAYS, WORKS, ETC. 43 the defect was a hidden one which could not have been discovered or remedied with reasonable care and inspection, and that the defendant railroad was not liable. 30. Hidden Danger in the Ways, Works, or Ma- chinery. A concealed or hidden danger, in the nature of a trap, in the defendant's ways, works, or machinery, constitutes a defect in their condition, within the meaning of the Employers' Liability Acts, for which the employer is liable, especially to young or inexperienced employees. In McNamara v. Logan, 100 Ala. 187, a boy, while driving a mining-car down grade in a mine * entry for the first time, and while running beside the car and at- tempting to sprag the wheels, as he had been ordered to do, was crushed between the wall and the car in a narrow space. The evidence was conflicting as to the width of the entry at this point, but the evidence for the plaintiff tended to show that the space between the wall and the car was only a foot and a half, and an expert called by the plaintiff testified that the rule was to have this space three feet wide, and that a foot and a half was unsafe. It was held that the evidence warranted a finding that there was a defect in the ways of the defendant within the meaning of the Alabama statute. A like rule prevails at common law. It is the duty of an employer to use reasonable care to furnish safe material for his workmen. If he fails in this duty, he is liable for an injury caused thereby ; and the fact that 44 EMPLOYERS' LIABILITY ACTS. it was rendered dangerous by the act of the plaintiff's fellow-servant does not relieve the employer from re- sponsibility. 1 31. Injury not caused by Defect alleged. Even if there be a defect in the machinery, yet, if the injury was not caused by that defect, an employee can- not recover of the master, either at common law 2 or under the Employers' Liability Act. 3 In Brady v. Ludlow Manuf. Co., 154 Mass. 468, the plaintiff was injured while at work removing waste from his carding-machine in defendant's factory by a gate swinging to and pushing him upon the gears of the machine. In delivering the opinion of the court, Mr. Justice Knowlton says, on page 471 : " The defect in the gate was that, when swung to- gether, it would not catch on the fastening, and, if fastened, would not stay so, but would stand a little way open. ... But the defect had no connection with the accident. If the device for fastening the gate had worked perfectly, it would have made no difference to the plaintiff, for he could not clean the gears without keeping the gate open. There was no evidence that he was injured by reason of any defect or want of repair in the defendant's machinery or appliances." 1 Ford v. Fitchburg Ry., 110 Mass. 240 ; Holden v. Fitchburg Ry., 129 Mass. 268 ; Neven v. Sears, 155 Mass. 303. 2 Sullivan v. Wamsutta Mills, 155 Mass. 200. Brady v. Ludlow Manuf. Co., 154 Mass. 468. DEFECTS IN CONDITION OF WAYS, WORKS, ETC. 45 32. Machinery need not be the Safest or Best Known in Use. Neither at common law nor under the Employers' Liability Act is the employer required to furnish the safest or the best known machinery in use, or that with the latest improvements in safety appliances. 1 He per- forms his duty towards his employees when he furnishes machinery which is reasonably safe and adapted to the purpose for which it is used. In Alabama it is a sufficient fulfilment of the em- ployer's duty to adopt such machinery or appliances as are in ordinary use by prudently conducted concerns engaged in like business and surrounded by like cir- cumstances. This rule applies to. actions under the Employers' Liability Act as well as to actions at com- mon law. 2 33. Absence of Guards, Cleats, Rails, etc. Whether the absence of a guard, cleat, rail, or other form of protection from danger, constitutes a " defect in the condition " of the employer's ways, works, or machinery within the meaning of the statute, depends upon the essential nature of the object itself, and the use for which it was intended. In Gustafsen v. Washburn & Moen Manuf. Co., 153 Mass. 468, a workman, while assisting in pulling a loaded car along a railroad track on the defendant's 1 O'Maley v. South Boston Gas Light Co., 158 Mass. 135, 137. 2 Richmond &c. Ry. v. Bivins, 103 Ala. 000 ; 15 So. Rep. 515, 517 ; Wilson v. Louisville &c. Ry., 85 Ala. 269 ; Georgia Pacific Ry. v. Propst, 83 Ala. 518 ; Louisville &c. Ry. v. Allen, 78 Ala. 494. 4:6 EMPLOYERS' LIABILITY ACTS. premises, fell into a ditch across the track, and was instantly killed by the car falling on top of him. The ditch was open and visible, but not guarded, and had been dug that morning without warning to the em- ployees, who had been accustomed to use the track, among whom was the deceased. In pulling the car, the deceased was naturally obliged to lean forward and bend down towards the track. In an action under the Employers' Liability Act, it was held that, in the absence of direct evidence that the deceased knew of the ditch, the plaintiff was entitled to go to the jury on the question as to whether there was a defect in the condition of the ways used in the defendant's business which arose from its negligence. The absence of a blocking appliance to a truck, used to transport heavy articles from one part of a floor to another, is not a defect in the condition of the tool or machine within the meaning of the Massachusetts act. 1 In Graham v. Boston & Albany Ry., 156 Mass. 4, a freight brakeman, while engaged in uncoupling cars in motion, had his hand crushed by the slipping backwards of an oil-tank. As the plaintiff reached over with his right hand to pull the coupling-pin, he reached back with his left hand for a grab-iron, or handle, by which to steady himself. The car had no grab-iron, and the plaintiff took hold of the end block on the tank-car, to save himself, when the engineer started up the train, after receiving the signal. This brought his left hand near the oil-tank ; and when the train was started with a jerk, the tank shifted and crushed his hand. In an 1 O'Keefe v. Brownell, 156 Mass. 131. DEFECTS IN CONDITION OF WATS, WORKS, ETC. 47 action under the statute, it was held that whether the oil-car was defective for want of a grab-iron was a ques- tion of fact for the jury to decide. 34. Same. The absence of hooks or stays to a ladder, used in an engine-room for the purpose of turning on steam to a donkey-engine > at some distance above the floor, may warrant a finding that there was a defect in the condi- tion of the plant within the meaning of the English act of 1880. 1 In an action under the Alabama act by a conductor against a dummy railroad company for personal injuries caused by his train running into an open switch, which switch had no lock or other fastening, the question whether the absence of a lock or fastener constituted a defect was held to depend upon utility and the usage and custom of well-regulated roads. 2 Under the Massachusetts act, the absence of a latch, or lock, to a shifting-bar of a machine, to prevent it from starting automatically by the driving-belt slipping from the loose pulley on to the tight pulley, is not a defect in the condition of the employer's machinery, even if an expert testifies that the machine was danger- ous without it, and a verdict should be ordered for the defendant if nothing further appears. 3 The failure of a building contractor to shore up the wall of an old house which he is pulling down for the owner, whereby the wall falls upon one of his 1 Weblin v. Ballard, 17 Q. B. D. 122. 2 Birmingham Ry. v. Allen, 99 Ala. 359. 3 Ross v. Pearson Cordage Co., 164 Mass. 257 ; 41 N. E. Rep. 284. 48 EMPLOYERS' LIABILITY ACTS. employees, is a defect in the condition of his works for which he is liable under the English act. 1 35. Miscellaneous Cases. A vicious habit of kicking in a horse is a "defect" within the meaning of the English act of 1880. 2 A plank only eight inches wide, laid upon rafters three feet apart and thirty feet above the floor of a building, upon which plank the plaintiff's intestate, a night-watchman, was required to walk in the discharge of his duties, constitutes a defect in the condition of the ways within the terms of the Alabama Employers' Liability Act. 3 In Prendible v. Connecticut River Manuf. Co., 160 Mass. 131, a staging, upon which the plaintiff was stand- ing to pile up wood, fell, and injured him. The staging was about fifteen feet high, twenty feet long, and five feet wide, and was moved from place to place, and used in piling wood. It was erected by the side of a wood- pile, and was held in position by three brackets, each of which was fastened to the woodpile by six wooden cleats, one end of each cleat being nailed to the wood- pile, and the other end to the upright part of the bracket. There were three nails at each end of each cleat, and the cleats were about two feet long, about two inches wide, and an inch thick. The staging was designed to hold a quantity of wood and two men. There was one prop, or support, at one end of the staging when it fell. It was held that the jury was 1 Brannigan v. Robinson, [1892] 1 Q. B. 344. 2 Yarmouth t>. France, 19 Q. B. D. 647. United States Rolling Stock Co. v. Weir, 96 Ala. 396. 49 warranted in finding that there was a defect in the con- dition of the staging within the meaning of the statute ; and that as this defect was not discovered or remedied, owing to the negligence of a person entrusted by the defendant with the duty of seeing that the ways, works, or machinery were in proper condition, the plaintiff was entitled to recover. In Willetts v. Watt, [1892] 2 Q. B. 92, the plaintiff, while passing from one part of the defendant's work- shop to another in the discharge of his duties, fell into a catchpit, the lid of which had been removed shortly before, for the first time in five years, to make some repairs. The lid was level with the floor, and was ordinarily used as part of the floor for walking. It was held by the Court of Appeal, in an action under the Employers' Liability Act, that this did~not constitute a defect in the condition of the way within the meaning of the statute, but was merely a negligent user of the way by the person who caused the removal of the lid. 1 Fry, L. J., says, in his opinion, on page 100 : " The way was properly constructed for a twofold purpose : the well or catchpit might be used when required, or the place might be used for general purposes, including that of a way. It was properly adapted to subserve both these purposes, and the cause of the accident was not deficient construction, but that it was negligently used for one of the purposes without notice to persons who were using it for the other." 1 As the person who caused the removal of the lid was probably a superintendent, the plaintiff was granted the right to retry his case under sub-section 2, upon the payment of costs. CHAPTER m. " WAYS, WORKS, MACHINERY, OR PLANT.' Section 36. Statutory provisions. 37. Definitions and illustrations. 38. " Machinery " defined. 39. Temporary structures. 40. Works in process of construc- tion or destruction. 41. Movable staging owned by de- fendant. 42. Movable stairs owned by third person. Section 43. Foreign car used by defendant for its own benefit. 44. Same. 45. Foreign car not used by defend- ant, but merely forwarded empty. 46. Railroad track of connecting road. 47. Railroad track of shipper. 36. Statutory Provisions. THE Massachusetts and Colorado acts relate to defects in the condition of the " ways, works, or machinery," except that, in the sections respecting the liability of an employer to an employee of an independent contractor, the term "plant" is used in addition to the terms " ways, works, or machinery." The Alabama and English acts relate to defects in the condition of the " ways, works, machinery, or plant." The Indiana act relates to " ways, works, plant, tools, and machinery." 3 1 Mass. St. 1887, ch. 270, 1, cl. 1 ; Colo. St. 1893, c. 77, 1, cl. 1. 2 Ala. Code of 1886, 2590, cl. 1 ; 43 & 44 Viet. ch. 42, 1, cl. 1. 8 Ind. St. 1893, ch. 130, 1, cl. 1. "WAYS, WORKS, MACHINERY, OR PLANT." 51 37. Definitions and Illustrations. Wires forming part of a railroad's electric system of signals, so attached to the rails and sleepers as to trans- mit the electric current, are a part of the " ways, works, or machinery " of the railroad, within the meaning of the Massachusetts statute. 1 To constitute a " way " within the meaning of the statute, it is not necessary that it should be marked out or defined, or that it should be habitually used as a way. In the case of a workshop it has been held that the course which the workmen ordinarily take in going from one part of the shop to another in the discharge of their duties is such a way. 2 An "exploder" used in blasting rock, consisting of a copper covering filled with fulminate of mercury, which is bought by a quarry-owner and instantly con- sumed in the use of causing an explosion by electricity, is not a part of his " ways, works, or machinery," within the meaning of the Massachusetts statute. 3 A ladder or hand-hold on a railroad freight-car is part of the ways, works, machinery, or plant, within the meaning of the Alabama statute. 4 A horse is a part of the " plant " of a warehouseman, within the meaning of the English statute. 5 1 Brouillette v. Connecticut River Ry., 162 Mass. 198. 2 Willetts v. Watt, [1892] 2 Q. B. 92. 8 Shea v. Wellington, 163 Mass. 364. 4 Louisville, &c. Ry. v . Pearson, 97 Ala. 211. 6 Yarmouth v. France, 19 Q. B. D. 647. 52 EMPLOYERS' LIABILITY ACTS. 38. "Machinery" defined. The term " machinery," as used in the Alabama act, has been defined by the Supreme Court of that State as follows : " The term ( machinery ' embraces all the parts and instruments intended to be, and actually operated, from time to time, exclusively by force created and applied by mechanical apparatus or contrivance, though the initial force may be produced by the muscular strength of men or animals, or by water or steam, or other inan- imate agency. 1 The carding, spinning, and weaving machines, together with the instrumentality by which the prime motive-power is created or applied, constitute the machinery of a cotton-mill. When cars, though used at times and at other times detached, are formed into a train, to which the propelling force is imparted by means of a locomotive, the entire train constitutes machinery connected with or used in the business. . . . A hammer is a tool or instrument ordinarily used by one man in the performance of manual labor. It may be made an essential part of machinery when intended to be, and is, operated by means thereof ; but when dis- connected from any other mechanical appliances, and operated singly by muscular strength directly applied, such tool or instrument is not ( machinery ' in its most comprehensive signification, or in the meaning of the statute." 2 It was accordingly held that the plaintiff could not recover for an injury caused by a defective hammer, 1 Citing Seavey v. Central Ins. Co., Ill Mass. 540. 2 Georgia Pacific Ky. v. Brooks, 84 Ala. 138, 140, 141. "WAYS, WORKS, MACHINERY, OR PLANT." 53 which was disconnected from other mechanical appli- ances, and was operated singly by muscular strength directly applied. 39. Temporary Structures. The words " ways " and " works " in the statute apply only to ways and works of a permanent or quasi- permanent character. They do not apply to ways or works of a merely temporary character, although they are connected with, or used in the business of, the employer. Hence, it has been held under the Massachu- setts act that a temporary staging, put up by masons employed by a contractor to erect a building on the land of a third person, is no part of the contractor's ways or works, and that he is not liable to an employee for an injury caused by a defect in the condition of the staging. 1 So, in Lynch v. Allyn, 160 Mass. 248, in which the plaintiff was injured by the caving in of a bank of earth upon which he was working, on the land of a third person, the court says, through Mr. Justice La- throp, on page 252 : " The language of the section seems to us to point to ways and works of a permanent charac- ter, such as are connected with or used in the business of the employer." It was accordingly held that the liability of a bank of earth upon the land of a third person to fall when undermined by workmen, if not shored up, is not a " defect in the condition of the ways, works, or machinery connected with, or used in the business of, the employer," when the work on the bank is simply the levelling of it for grading the land of a person other than the defendant. 1 Burns v. Washburn, 160 Mass. 457. 54 EMPLOYERS' LIABILITY ACTS. 40. Works in Process of Construction or Destruc- tion. It has been decided under the English act that the owner of works in process of construction is not liable to an employee for an injury caused by a defect in their condition, because until they are completed they cannot be said to be " connected with or used in the business of the employer," within the meaning of the statute. 1 In Conroy v. Clinton, 158 Mass. 318, 320, where an employee was killed by the caving in of a sewer trench in course of construction, the court remarked that the question whether the case fell within the terms " ways " or " works " in the Massachusetts act was " not free from difficulty." The decision, however, turned upon another point, and the court deemed it unnecessary to determine this question. The case of a building contractor is, however, dif- ferent from that of an owner in this respect. Works in process of construction or demolition by a builder are "connected with or used in the business" of such a person, and therefore he is liable to one of his em- ployees who is injured by a defect in their condition. In Brannigan v. Robinson, [1892] 1 Q. B. 344, the defendant, a builder, was engaged to pull down an old house belonging to a third person. During the course of the work, he ordered the plaintiff, a laborer in his employment, to remove certain debris which lay on the ground near one of the standing walls. The defendant had neglected to have this wall shored up, and it fell upon the plaintiff and caused the injuries complained of. 1 Howe v. Finch, 17 Q. B. D. 187. "WATS, WORKS, MACHINERY, OR PLANT." 55 It was held that the defendant was liable under the act. Lawrence, J., says on page 346 : " The defendant was a builder, whose business it was to pull down walls, as well as to build them up. The walls he deals with must be just as much works connected with his business in the one case as in the other." Wright, J., says on page 347 : " The question is whether, under those circum- stances, the insecurity of the wall was not a defect in the condition of the works within the meaning of the act. If we were to hold that it was not, I think we would be putting an unduly narrow interpretation upon the word ' works,' and should be excluding from the ' O operation of the act a large class of businesses which are not carried on upon any fixed site. I cannot see why premises which are in the possession of a person for the purposes of his business should not be regarded as the works of such person, so long as he is carrying on his business there. The case of Howe v. Finch, 17 Q. B. D. 187, is not in any way inconsistent with our judgment ; for in that case the employer who was sued was not the builder, but the owner of the premises, and the wall, being still in an unfinished state and in the possession of the builder at the time of the accident, could not have been said to be connected with or used in the business of the employer." An employer is, however, liable for the negligence of his superintendent, under another clause of the statute, while engaged in superintending the building or con- struction of his ways, works, or machinery. 1 1 Lynch . Allyn, 160 Mass. 248 ; Hennessy v. Boston, 161 Mass. 602 ; post, 57, 58. 56 EMPLOYERS' LIABILITY ACTS. 41. Movable Staging owned by Defendant. In Prendible v. Connecticut River Manuf. Co., 160 Mass. 131, an employee was injured by the fall of a staging owned and used by the defendant. The staging was fifteen feet high, twenty feet long, and five feet wide, and was used in the yard of defendant's sawmill by the workmen in piling up the wood. It was moved from place to place as the work required, and was generally used in one place for four days or a week at a time. It was held that the staging, when erected, was a part of the " ways, works, or machinery " of the defendant, within the meaning of the statute. 42. Movable Stairs owned by Third Person. In Regan v. Donovan, 159 Mass. 1, the plaintiff was injured by the slipping of a flight of movable stairs. The defendants were contractors and builders, and were employed by one Roughan to do some work in his cel- lar. Several months before this the defendants had constructed the stairs for Roughan, and put them in the cellar. The plaintiff was ordered by one of the defendants to take a bar of iron down the stairs, and while in the act of doing so the stairs slipped and he was injured. It was held that the stairs were not a part of the ways connected with or used in the business of the defendant, within the terms of the Employers' Liability Act, and that the plaintiff could not recover. In the court's opinion, delivered by Mr. Justice Allen, it is said : " Nor can the action be supported under the Employ- ers' Liability Act, St. 1887, ch. 270, on the ground that "WAYS, WORKS, MACHINERY, OR PLANT." 57 there was a defect in the ways connected with, or used in the business of, the employer. It cannot be held that the defendants adopted the stairs as a way used in their business." Page 3. 43. Foreign Car used by Defendant for its own Benefit. It is settled that a foreign car, one not belonging to the defendant, constitutes a part of the defendant's " works or machinery " within the meaning of the stat- ute, if it is used by the defendant for its own benefit. Such use may be in the form of a charge for freight for hauling over its road, 1 or it may be in the form of a hiring for use from another person or corporation. 2 In any such case, the fact that the defendant is not the owner of the car is immaterial. For the time being, the car is a part of the defendant's rolling-stock. In Bowers v. Connecticut River Ry., 162 Mass. 312, 317, Mr. Justice Allen, in delivering the opinion of the court, says : " The first question under this count is, whether the cars were a part of the ways, works, and machinery used in the business of the defendant, within the mean- ing of the statute. They were loaded freight -cars which had come from other railroads, and which were to be hauled over a part of the defendant's railroad for the transportation of the freight contained therein, in the due course of the defendant's business. For the time being, they were used in the defendant's business as a part of its rolling-stock. The fact that the defend- 1 Bowers v. Connecticut River Ry., 162 Mass. 312. 2 Spaulding v. Flynt Granite Co., 159 Mass. 587. 58 EMPLOYERS' LIABILITY ACTS. ant did not own them is immaterial. The defendant was not bound to use them in its train if, on inspection, they were found to be unsafe. We think cars so used must be deemed to be a part of the defendant's works and machinery. Coffee v. New York, New Haven & Hartford Railroad, 155 Mass. 21; Gottlieb v. New York, Lake Erie & Western Railroad, 100 N. Y. 462 ; Fay v. Minneapolis & St. Louis Ry., 30 Minn. 231." In Spaulding v. Flynt Granite Co., 159 Mass. 587, the plaintiff was injured by a defective brake in a car belonging to the Boston & Albany Railroad, which the defendant was using to transport its stone from the quarry to the railroad track. The chief defence was that, as the defendant had to take such cars as it could get from the railroad company, it should not be held to the rule as to furnishing proper instrumentalities, but only to the duty of inspection. 1 The court held, however, that the defendant was liable on the ground that it had failed to furnish proper appliances in the transaction of its business. In delivering the opinion, Holmes, J., says : " Whatever may be said of a car received by a railroad only for the purpose of being forwarded, and not used by it at all in the process (Coffee v. New York, New Haven & Hartford Rail- road, 155 Mass. 21, 23), this car was used by the defend- ant as one of the instruments of its business. When that is the case, it does not matter whether the defendant owns the thing used or borrows it. The responsibility of the master to his servants is the same either way. . . . Probably, if the defendant had seen fit to furnish 1 Mackin v. Boston & Albany Ry., 135 Mass. 201 ; Keith v. New Haven Co., 140 Mass. 175, 180. "WAYS, WORKS, MACHINERY, OR PLANT." 59 its own cars, it could have done so. Certainly it was at liberty to carry the stone to the railroad by other means if it preferred. Even if the course of business adopted was the only one commercially practicable, there was nothing to hinder the defendant from seeing that the cars furnished it were put into proper condition before they were used." Pages 588, 589. 44. Same. In Alabama it has also been held that, if the defend- ant uses a foreign car, it is liable to an employee under the statute for a defect in its condition, to the same extent as if the car belonged to the defendant. 1 In Gottlieb v. New York &c. Ry., 100 N. Y. 462, 469, Mr. Justice Earl, speaking for the court, says : " It [a railroad company] is not bound to take such cars if they are known to be defective and unsafe. Even if it is not bound to make tests to discover secret defects, and is not responsible for such defects, it is bound to inspect foreign cars just as it would inspect its own cars. It owes the duty of inspection as master, and is at least responsible for the consequences of such defects as would be disclosed or discovered by ordinary inspec- tion. When cars come to it which have defects visible or discoverable by ordinary inspection, it must either remedy such defects or refuse to take such cars ; so much, at least, is due from it to its employees. The employees can no more be said to assume the risks of such defects in foreign cars than in cars belonging to the company. As to such defects, the duty of the com- pany is the same as to all cars drawn over its road." 1 Louisville &c. Ry. v. Davis, 91 Ala. 487 ; Alabama Great Southern Ry. v. Carroll, 97 Ala. 126. 60 EMPLOYERS' LIABILITY ACTS. It was accordingly held that bumpers only three inches wide on foreign freight -cars, which defendant was transporting loaded over its line, were defects which should have been discovered by ordinary inspection ; and that the defendant railroad was liable to a brake- man in its employ who was crushed between such cars while attempting to couple them. 1 In Baltimore &c. Ry. v. Mackey, 157 U. S. 72, a car inspector and repairer in the defendant's employ was crushed between two cars while repairing a draw-head. The injury was caused by a defective brake on a loaded foreign car, which allowed a train of freight-cars to go down grade and to bump into the cars that deceased was repairing. It was held that knowledge of the de- fective brake could not be imputed to the deceased, because he had had no opportunity to see it, and that the defendant railroad was liable. In delivering the court's opinion, Mr. Justice Harlan says, on page 91 : " We are of opinion that sound sense and public policy concur in sustaining the principle that a railroad company is under a legal duty not to expose its em- ployees to dangers arising from such defects in foreign cars as may be discovered by reasonable inspection before such cars are admitted into its train." 45. Foreign Car not used by Defendant, but merely forwarded empty. Under the original Massachusetts act, it was held that O ' an empty car belonging to another railroad company, 1 See, also, Goodrich v. New York Central &c. Ry., 116 N. Y. 398 ; Reynolds v. Boston & Maine Ry., 64 Vt. 66 ; Chicago &c. Ry. v. Avery, 109 111. 314. "WAYS, WORKS, MACHINERY, OR PLANT." 61 which was received and forwarded by the defendant company without using it in the process for its own benefit, was not part of the " ways, works, or machinery connected with or used in the business of the employer " within the meaning of the statute, and that accord- ingly the employer was not liable for an injury caused to an employee by reason of a defect in the brake- wheel of such a car. 1 By the Massachusetts amendatory statute of 1893, ch. 359, the mere fact that a car is in the possession of a railroad company is declared to make it a part of its ways, works, or machinery. The act reads as fol- lows : " A car in use by or in the possession of a rail- road company shall be considered a part of the ways, works, or machinery of the company using or having the same in possession, within the meaning of this act, whether such car is owned by it or by some other com- pany or person." This statute seems to change the rule announced in Thyng v. Fitchburg Ry., 156 Mass. 13, under the origi- nal Massachusetts act, as well as the common-law rule declared in Mackin v. Boston & Albany Ry., 135 Mass. 201. These cases held that, when foreign cars were received by the defendant railroad company for the purpose of forwarding, the defendant was not held to the strict rule as to furnishing proper appliances for the work, but merely to the duty of inspection. Hence, if the defendant provided a sufficient number of compe- tent inspectors, it was not liable for an injury caused by reason of a defect in the car's original construc- tion or present condition, which was not discovered 1 Coffee v. New York &c. Ry., 155 Mass. 21. 62 EMPLOYERS' LIABILITY ACTS. or remedied owing to the negligence of the inspector, or other person entrusted by the defendant with the duty of seeing that the cars were in proper condition. 1 The common employer was not liable at common law, because the inspector was a fellow-servant with the injured employee ; 2 and the railroad company was not liable under the original statute, because a foreign car so used was not part of the " ways, works, or machinery connected with or used in the business of the employer." The act of 1893, ch. 359, therefore, gives an em- ployee, who is injured by reason of a defect in a for- eign car which is in possession of though not in use by the defendant, which defect the inspector negligently failed to discover or remedy, a right of action against his employer, if a railroad company, by expressly de- claring that such a car " shall be considered a part of the ways, works, or machinery of the company using or having the same in possession." A car-inspector is obviously a person entrusted with the duty of seeing that the employer's ways, works, or machinery are in proper condition. 3 46. Railroad Track of Connecting Road. The occasional use by the defendant railroad com- pany of a connecting railroad's track, in delivering and taking cars in the course of business, does not make such track a part of the defendant's " ways " within the meaning of the Employers' Liability Act. The 1 See, also, Kelly v. Abbot, 63 Wis. 307. 2 Dewey v. Detroit &c. Ry., 97 Mich. 329 ; Sraoot v. Mobile &c. Ry., 67 Ala. 13. 8 Bowers v. Connecticut River Ry., 162 Mass. 312. "WAYS, WORKS, MACHINERY, OR PLANT." 63 mere license to use such track does not give the de- fendant any control over it, nor impose any obligation upon the defendant to prevent defects in its condition. 1 Hence the defendant is not liable to its employee for an injury received by reason of a defect in that track. Mr. Justice Morton, in delivering the court's opinion in Trask v. Old Colony Ry., 156 Mass. 298, at 303, says : " It may not be necessary, in order to render an employer liable for an injury occurring to an employee through a defect in the ways, works, or machinery, that they should belong to him, but it should at least appear that he has the control of them, and that they are used in his business, by his authority, express or implied. 2 Neither the employer nor any person in his service can be justly charged with negligence as to matters over which they have no control. The phrase, ' connected with or used in the business of the employer ' (St. 1887, ch. 270, 1, cl. 1), cannot be taken literally, but, when used in connection with ways, works, and machinery, must be understood to mean ways, works, and ma- chinery connected with or used in the business of the employer by his authority and subject to his control." 47. Railroad Track of Shipper. In Engel v. New York &c. Ry., 160 Mass. 260, it was held by a majority of the court that a track in the yard of a shipper of freight, owned, maintained, and repaired by him, is no part of a railroad's " ways," though it is used by the railroad under a contract with the shipper for the delivery of freight in the yard. 1 Trask v. Old Colony Ry., 156 Mass. 298. 2 Citing Roberts & Wallace, Employers' Liability (3d ed.), 249, 250. 64 EMPLOYERS' LIABILITY ACTS. The case was decided upon the authority of Trask v. Old Colony Ry., 156 Mass. 298. Mr. Justice Knowl- ton, however, dissented, and distinguished the case from the Trask case upon the ground that, in that case, " the defendant had no control nor right of control, nor right to demand a safe condition, of the track of the other railroad. But in the present case the track is furnished to the defendant as a place on which to do its regular business for pay ; and the defendant has the control of it in the sense that it has a right to insist on its being kept in a safe condition for the transaction of the busi- ness which it has agreed to do." Page 266. Although the court repudiates the idea that owner- ship of the track by the defendant is a necessary condi- tion of its. liability (page 261), yet, upon its reasoning, it is difficult to see what control of a track short of ownership would render the track a part of its ways. After quoting the language of 1, cl. 1, the court adds : " These words mean that the defect must be one which the employer has a right to remedy if he does discover it, and of a kind which it is possible to charge a servant with the duty of setting right." Page 261. The court, therefore, held that the railroad company was not liable to an employee for an injury caused by reason of a defect in the condition of the track, but intimated that there was a remedy against the shipper for negligence. 1 The dissenting opinion is supported by Stetler v. Chicago &c. Ry., 46 Wis. 497, and seems to be the better view of the subject^ 1 Citing Finnegan v. Fall River Gas Co., 159 Mass. 311, and Osborne t?. Morgan, 130 Mass. 102, 104. 2 See, also, Commonwealth v. Boston & Lowell Ry., 126 Mass. 61. CHAPTER IV. NEGLIGENCE OF SUPERINTENDENT. Section 48. Statutory provisions. 49. Enlargement of employee's common-law rights. 50. Common law respecting super- intendent's negligence com- pared with Employers' Liabil- ity Act. 51. Same. 52. Who are " superintendents " within the meaning of the statute. 53. Who are not " superintendents " within the meaning of the statute. 54. Same. " Sole or principal " duty. 55. Same. Charge or control does not render one a superintend- ent. 56. Negligence of employer and superintendent. 57. What is negligence of superin- tendent. Alabama cases. 58. Same. Massachusetts cases. Section 59. Negligence must be an act of superintendence. 60. Superintendent doing work of common laborer. 61. Temporary absence of superin- tendent. 62. Instructions upon matters of detail. 63. Conflicting evidence as to whether person causing in- jury is a superintendent : jury to decide. 64. That superintendent is a care- ful workman is no defence. 65. Common employment under dif- ferent employers. 66. General and special servants. 67. Injury to superior officer or other employee not under the superintendence of the negli- gent superintendent. 68. Employee liable to co-employee for negligence. 48. Statutory Provisions. THE Massachusetts act of 1887 gives a right of action to an employee who is injured " by reason of the negligence of any person in the service of the employer, entrusted with and exercising superintendence, whose 66 EMPLOYERS' LIABILITY ACTS. sole or principal duty is that of superintendence ; " 1 and the act of 1894, ch. 499, enlarges the employee's right of action by adding the words, " or, in the ab- sence of such superintendent, of any person acting as superintendent with the authority or consent of such employer." 2 The fifth section of the Massachusetts act of 1887 contains a qualification of this right of action in these words : " An employee or his legal representatives shall not be entitled under this act to any right of compensa- tion or remedy against his 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 service of the employer, who had entrusted to him some general superintendence." The Alabama statute gives a right of action in 2590 of the Code of 1886: "2. When the injury is caused by reason of the negligence of any person in the service or employment of the master or employer, who has any superintendence intrusted to him, whilst in the exercise of such superin- tendence. "3. When such injury is caused by reason of the negligence of any person in the service or employment of the master or employer, 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. 1 St. 1887, ch. 270, 1, cl. 2. a St. 1894, ch. 499, 1. NEGLIGENCE OF SUPERINTENDENT. 67 4. " When such injury is caused by reason of the act or omission of any person in the service or employment of the master or employer, done or made in obedience to the rules and regulations or by-laws of the master or employer, or in obedience to particular instructions given by any person delegated with the authority of the master or employer in that behalf." The qualification upon this right, reads as follows : " 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 reason- able 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 negli- gence." 49. Enlargement of Employee's Common-Law Rights. This is an important enlargement of the rights of employees and of the liabilities of employers. It gives a right of action in many cases for the negligence of a superintendent, who at common law was deemed to be merely a fellow-servant, for whose negligence the com- mon employer was not liable. It restricts the defence of employers that the injury was caused by the negli- gence of a fellow-servant. 2 In Griffiths v. Dudley, 9 Q. B. D. 357, 362, Field, 1 Ala. 'Code, 2590. 2 Coffee v. New York &c. Ry., 155 Mass. 21, 22 ; O'Maley v. South Boston Gas Light Co., 158 Mass. 135, 136. 68 EMPLOYERS' LIABILITY ACTS. J., says : " The Employers' Liability Act was passed to obviate the injustice to workmen that employers should escape liability where persons having superintendence and control in the employment were guilty of negli- gence causing injury to the workmen. The employer was, before the passing of the act, clearly liable where he himself was guilty of negligence. It is also clear now that, for the negligence of a fellow-workman not coming within any of the classes of persons specified in the act, the employer is not liable. But before the passing of the act, Wilson v. Merry, L. R. 1 H. L. Sc. 326, had decided that, where, the injury was caused through the negligence of a superior person in the employment, the workmen could recover no damages from their common employer. The object of the act was to get rid of the inference arising from the fact of common employment with respect to injuries caused by any persons belonging to the specified classes." 50. Common Law respecting Superintendent's Neg- ligence compared with Employers' Liability Act. In Massachusetts the rule has always been strictly enforced in common-law actions that the common em- ployer is not liable to an employee for injuries sustained through the negligence of a superintendent or superior workman. The fact that the latter has control over the plaintiff is deemed immaterial. 1 Even when the injury is caused by the negligent order of the defendant's 1 Kalleck v. Deering, 161 Mass; 469 ; Moody v. Hamilton Manuf. Co., 159 Mass. 70 ; Zeigler . Day, 123 Mass. 152 ; Floyd v. Sugden, 134 Mass. 563 ; Walker v. Boston '& Maine Ry., 128 Mass. 8 ; McKinnon v. Norcross, 148 Mass. 533 ; Howard v. Hood, 155 Mass. 391. NEGLIGENCE OF SUPERINTENDENT. 69 superintendent either to a third person or to the injured employee, the defendant is not liable at common law. 1 In Rogers v. Ludlow Manuf. Co., 144 Mass. 198, 203, Mr. Justice Field for the court says : " It is settled in this Commonwealth that all servants employed by the same master in a common service are fellow-ser- vants, whatever may be their grade or rank." 2 In Kenney v. Shaw, 133 Mass. 501, an action at com- mon law, a workman was injured while engaged in blasting at a quarry, by reason of the negligence of the defendant's superintendent. It was held that " the injury was caused by one of the risks of the employ- ment which the plaintiff assumed," and that he could not therefore recover of the common employer. In the later case of Malcolm v. Fuller, 152 Mass. 160, under the Employers' Liability Act, upon similar facts, it was held that one object of the statute was to prevent the plaintiff from assuming the risk of a super- intendent's negligence, and to make the common em- ployer liable for such negligence, and that accordingly the plaintiff could recover. In McGinty v. Athol Reservoir Co., 155 Mass. 183, an employee was injured by the fall of a derrick, caused by the pulling up of the post to which one of the guy ropes was fastened. The post was set by another work- 1 Albro v. Agawam Canal Co., 6 Cush. 75 ; Flynn v. Salem, 134 Mass. 351 ; Benson v. Goodwin, 147 Mass. 237. 2 This rule prevails also in the following jurisdictions : Brown v. Winona &c. Ry., 27 Minn. 162 ; Gonsoir v. Minneapolis &c. Ry., 36 Minn. 385 ; Mobile &c. Ry. v. Smith, 59 Ala. 245 ; Brodeur v. Valley Falls Co., 16 R. I. 448 ; Keystone Bridge Co. v. Newberry, 96 Pa. St. 246 ; Blake v. Maine Central Ry., 70 Me. 60 ; Pennsylvania Ry. v. Wachter, 60 Md. 395 ; Wilson v. Merry, 1 H. L. Sc. 326. 70 EMPLOYEES' LIABILITY ACTS. man, under the direction of the defendant's superin- tendent. In an action at common law, it was held that the superintendent was a feUow-servant with the plain- tiff, for whose negligence the defendant was not liable. If the action had been under the Employers' Liability Act, the plaintiff could probably have recovered. The Alabama rule at common law is thus stated by Mr. Justice Somerville for the court in Louisville &c. Ry. v. Allen, 78 Ala. 494, 502 : " It was the settled law in this State, prior to the act of February 12, 1885, establishing by statute a contrary rule, that the employer is not liable in damages for any injury suffered by a fellow-servant by reason of the faults or negligence of another fellow-servant or co-employee in the same gen- eral business, unless such employer was chargeable with want of due care in having employed incompetent or unskilful servants in the particular business in which the injury was received." In Mobile &c. Ry. v. Smith, 59 Ala. 245, it was held that the general manager and superintendent of a rail- road company was a fellow-servant with a locomotive fireman, within the meaning of this rule, and that there- fore the common employer, the railroad company, was not liable to the fireman for an injury caused through the negligence of the general manager and superin- tendent. 51. Same. In England, until the passage of the Employers' Lia- bility Act of 1880, a like rule prevailed at common law. 2 1 Citing Mobile &c. Ry. v. Smith, 59 Ala. 245, 248 ; and Mobile &c. Ry. v. Thomas, 42 Ala. 672. 2 Wilson v. Merry, L. R. 1 H. L. Sc. 326 ; Feltham v. England, L. R. 2 Q, B. 33. NEGLIGENCE OF SUPERINTENDENT. 71 In Howells v. Landore Steel Co., L. R. 10 Q. B. 62, a coal-miner was killed through the negligence of the manager of the defendant's mine by an explosion of fire-damp. It was held that the defendant was not liable. Cockburn, C. J., says on page 64 : " Since the case of Wilson v. Merry, L. R. 1 H. L. Sc. 326, in the House of Lords, it is not open to dispute that, in gen- eral, the master is not liable to a servant for the negli- gence of a fellow-servant, although he be the manager of the concern." Blackburn, J., says on pages 64, 65 : " It is a rule of law that the master who employs a ser- vant (not an agent) is responsible for the negligence of that servant in matters in which he is employed ; but there is this exception, which has been established by a series of decisions, that with regard to a fellow-servant the master is held not so responsible, because this neg- ligence is to be taken as one of the ordinary risks which the servant contemplates and undertakes when entering into his employment." In Ohio, however, the rule generally recognized at common law has been repudiated in a long line of ably reasoned decisions, and the doctrine of " superior ser- vant " established, by which a servant who is placed in control over another servant is not considered a fellow- servant, and the common employer is liable to the latter for an injury caused through the negligence of the former. 1 1 Little Miami Ry. v. Stevens, 20 Ohio, 415 ; Cleveland &c. Ry. v. Keary, 3 Ohio St. 201 ; Mad River &c. Ry. v. Barber, 5 Ohio St. 541 ; Whaalon v. Mad River &c. Ry., 8 Ohio St. 249 ; Pittsburgh &c. Ry. v. Devinney, 17 Ohio St. 197 ; Berea Stone Co. v. Kraft, 31 Ohio St. 287 ; Lake Shore &c. Ry. v. Lavalley, 36 Ohio St. 221. The Kentucky rule is very like the Ohio rule. Louisville &c. Ry. v. Collins, 2 Duvall (Ky.), 114. 72 EMPLOYERS' LIABILITY ACTS. Rogers v. Ludlow Manuf. Co., 144 Mass. 198, 201, 202, contains a concise statement of the views of dif- ferent courts upon this question at common law by Mr. Justice Field, as follows : " As a corporation must act by natural persons, and as all large corporations carry on their business by means of servants of different grades, it is manifest that, if it is held that these are all fellow-servants, and that the corporation can delegate the whole duty of hiring and superintending its servants, and of providing its machinery and of keeping it in repair, to one or more principal servants, such as superintendents or managers, the corporation may escape all responsibility for injuries caused by defective machinery, except in the few cases where it can be shown that these principal servants were incompetent, or that the directors of the corporation, or its principal officers, knew that the subordinate servants were incompetent, or that the machinery was defective. To avoid this result, some courts have held that su- perintendents or managers are not fellow-servants with the men employed to work under them, or that servants employed in one department of the business are not fellow-servants with those employed in another. Other courts have held that they are all fellow-servants, but that the master cannot avoid his obligation to see to it that reasonable care shall be exercised in procuring suitable machinery, in keeping it in repair, and in hiring and retaining competent servants, by employing a ser- vant to do these things for him, and that if he does employ a servant for this purpose, and the servant does not use due care, the master is responsible." NEGLIGENCE OF SUPERINTENDENT. 73 52. Who are " Superintendents " within the Mean- ing of the Statute. In Prendible v. Connecticut River Manuf. Co., 160 Mass. 131, the plaintiff was injured by the negligence of one Campbell. The evidence for the plaintiff was that Campbell was the foreman of a gang of workmen engaged in piling wood for the defendant in the yard of its sawmill ; that he sometimes worked with his hands, but worked when he pleased and only at what he pleased ; that even when he was at work he was also overseeing the men ; that he placed the men at work ; and that he hired workmen at different times. Two of the defendant's witnesses also testified that he had gen- eral authority over the gang of workmen. It was held that the jury was warranted in finding that Campbell's principal duty was that of superintendence, within the meaning of the statute, and that the common employer was liable for his negligence to the plaintiff. At common law, Campbell would be merely a fel- low-servant with the plaintiff, for whose negligence the defendant would not be liable. 1 In Davis v. New York &c. Ry., 159 Mass. 532, a fore- man of a gang of workmen engaged in track-repairing was held to be a person entrusted with and exercising superintendence, for whose negligence in failing to warn one of the workmen of the approach of a train the common employer was liable under the act. At com- mon law, such a foreman was considered a fellow-work- man, for whose negligence the common employer was not liable. 2 1 McGuerty v. Hale, 161 Mass. 51, 54 ; Zeigler v. Day, 123 Mass. 152. 2 Clifford v. Old Colony Ry., 141 Mass. 564. 74 EMPLOYEES' LIABILITY ACTS. A foreman in charge of a gang of seven men em- ployed in pile-driving, who has power to employ and dismiss men, and who does not work with his hands, but directs the men, is a superintendent within the meaning of the Massachusetts act, although there is a O ' tj general superintendent over him in the defendant's service. 1 In Mahoney . New York &c. Ry., 160 Mass. 573, it was held that the jury would be justified in finding that the principal duty of a person who was section foreman of a gang of five men in the employ of a railroad cor- poration, and under whose directions the plaintiff was working at the time of the injury, was that of super- intendence within the Massachusetts act of 1887, ch. 270. 53. Who are not " Superintendents " within the Meaning of the Statute. The statute, however, does not wholly abolish the defence that the injury was caused by the negligence of a fellow-servant, but merely restricts it. There are still many cases in which this defence is available to the common employer. In O'Connor v. Neal, 153 Mass. 281, 284, Mr. Jus- tice Morton, for the court, says : " The statute [Employers' Liability Act] does not apply to a mere laborer working under or with others, even though it may be a part of his duty at some particular moment in the progress of the work to look after and attend to certain instrumentalities." In O'Connor v. Neal, ubi supra, a mason was injured through the negligence of an ordinary workman in 1 McPhee v. Scully, 163 Mass. 216. NEGLIGENCE OF SUPEEINTENDENT. 75 placing one end of a staging unevenly on the floor, so that it tipped when the plaintiff stepped upon it, and caused him to fall. It was held that the workman was a fellow-servant of the plaintiff, for whose negligence their common employer was not liable to the plaintiff, either at common law or under the statute. In Alabama the rule has been thus stated by Mr. Chief Justice Stone : " To be actionable under that part of the statute which controls this case (Code, 2590, subd. 2), the injury must be caused by the negligence of*6ome person in the service or employment of the master or employer, 6 who has superintendence intrusted to him, while in the exercise of such superintendence.' To hold the master or employer liable under this pro- vision, the negligence must be that of some agent or employee who is in the exercise of superintendence, and to whose negligence in such exercise the disaster is traced. To hold otherwise would be to fasten liability on the principal to the employee for that which is at most the negligence of a fellow-servant having no greater power or authority than the servant who complains of the injury. This the statute does not authorize." 1 In O'Brien v. Rideout, 161 Mass. 170, a man who had worked upon a circular saw six or seven times, and had been hired as a common laborer, was set to work upon the saw by the defendant's foreman. The plaintiff testified that this foreman " kept himself at work pretty much all the time in getting out lumber, or piling it up, or arranging it, and in operating saws." It was held that such evidence would not justify a finding that the 1 Sheffield v. Harris, 101 Ala. 564, 569, 570 ; 14 So. Rep. 357, 358. 76 EMPLOYERS' LIABILITY ACTS. foreman was a person whose sole or principal duty was that of superintendence within the terms of the Massa- chusetts statute ; and that the foreman was merely a fellow-servant with the plaintiff, for whose negligence the defendant was not liable, either at common law or under the Employers' Liability Act. 54. Same. " Sole or Principal " Duty. Evidence that an employee exercised some acts of superintendence within a narrow scope of employment will not warrant a finding that his " sole or principal " duty was that of superintendence, as required by the Massachusetts statute of 1887. In Dowd v. Boston & Albany Ry., 162 Mass. 185, the plaintiff was injured by the negligence of one Mc- Donald. It appeared that McDonald, in the absence of the superintendent and foreman, gave directions to the plaintiff and to other workmen, but that he worked with his hands and drew the same wages as the plaintiff and the ordinary workmen, and that he received orders from the foreman and from the general superintendent. It was held that a verdict was properly ordered for the defendant, as the evidence was not sufficient to justify a finding that McDonald's " sole or principal " duty was that of superintendence. 1 In O'Neil v. O'Leary, 164 Mass. 387, the question was whether " the sole or principal duty " of one Mc- Donald was that of superintendence. It appeared that 1 See, also, Shepard v. Boston & Maine Ry., 158 Mass. 174. The injury in Dowd v. Boston & Albany Ry. (supra) probably occurred before the passage of St. 1894, ch. 499, 1, imposing a liability for the negligence of an acting superintendent. NEGLIGENCE OF SUPERINTENDENT. 77 he was entrusted with, and was exercising the duty of, superintending certain blasting operations, by one of which the plaintiff was injured. But the undisputed evidence showed that McDonald also worked with his own hands in attending to the fire under the steam- boiler, in sharpening all the tools used by the workmen, in charging the drill-holes and in clearing them out, and in other acts of manual labor, which altogether occupied most of his time. It was held by a majority of the court that this evidence would not warrant a finding that McDonald's " sole or principal " duty was that of superintendence, and that a verdict should have been ordered for the defendant. In the opinion, by. Mr. Justice Lathrop, it is said on pages 390, 391 : " In a sense it is undoubtedly true that superintendence is more important than manual labor, and so, if superin- tendence is entrusted to a man who also works with his hands, it may be said that his principal duty is that of superintendence. But if the statute had intended that every person exercising superintendence should not be considered a fellow-servant with a person injured, there would have been no need of the words i whose sole or principal duty is that of superintendence.' These words must have a reasonable interpretation given to them ; and a majority of the court is of opinion that it cannot be said of a person who works at manual labor, to the extent shown in this case, that his principal duty is that of superintendence." A like rule prevails under the English act. In Kel- lard v. Rooke, 21 Q. B. D. 367, the plaintiff was injured through the negligence of one Bodfield in failing to notify him that a bale of wool was about to be dropped 78 EMPLOYERS' LIABILITY ACTS. down into the hold of a vessel where the plaintiff was at work. Bodfield was the foreman of a gang of labor- ers among whom the plaintiff worked. The defendant generally superintended such work in person, but, as he was temporarily absent, Bodfield, who worked witli his hands on deck, was authorized to warn the men below when the bales were ready to drop by calling out, " Stand from under." It was held that Bodfield was not a superintendent within the meaning of the act, and that a nonsuit was properly ordered. 55. Same. Charge or Control does not render one a Superintendent. The fact that the negligent employee has the charge or control of the ways, works, machinery, or plant does not make him a superintendent within the meaning of these clauses. 1 In this respect the employer's liability differs materially from that of a railroad employer. 2 In Shaffers v. General Steam Navigation Co., 10 Q. B. D. 356, the plaintiff, while working in the hold of a vessel, was hit by a sack of corn, which fell down the hatchway through the negligence of one Jones. The bags were lowered into the hold of the ship by means of a crane, and it was Jones's duty to guide the beam of the crane by a guy-rope, and to give directions to the man working the crane when to lower and when 1 Shaffers v. General Steam Navigation Co., 10 Q. B. D. 356 ; Kellard v. Rooke, 19 Q. B. D. 585 ; s. c., 21 Q. B. D. 367 ; Roseback v. ^Etiia Mills, 158 Mass. 379 ; Dantzler v. De Bardeleben Coal Co., 101 Ala. 309 ; 8. c., 14 So. Rep. 10. 2 See ch. v., 69, 75-81, on the liability of railroad companies to their employees for the negligence of persons in the charge or control of certain railroad appliances. NEGLIGENCE OP SUPERINTENDENT. 79 to hoist. At the time of the accident, Jones failed to check the swing of the crane's beam, in consequence of which the sacks struck the combing of the hatchway, were thrown out of the sling, and fell down the hatch- way and broke the plaintiff's leg. It was contended that, as Jones had the charge of the crane, the jury would be justified in finding that he was a superintend- ent within the meaning of the act, but the court held the contrary and nonsuited the plaintiff. In Roseback v. JStna Mills, 158 Mass. 379, a loom- fixer was injured by the starting up of a loom by the weaver. He had been notified to fix a slight defect in the loom, and while in the act of fixing it the weaver started the loom. The weaver had operating charge and control of the loom, and when it got out of repair it was her duty to notify the loom-fixer to put it in order. The plaintiff contended that the weaver was a person "entrusted with and exercising superintend- ence," etc., within the Employers' Liability Act, 1 because she had the charge and control of the loom. But the court held that she was no more than the plaintiff's fellow-servant, and that he could not recover of their common employer tinder the statute. In Dantzler v. De Bardeleben Coal Co., 101 Ala. 309 ; 14 So. Rep. 10, one McKay was killed while in- side of a blowing cylinder or tub, repairing it, through the negligence of one Gould in failing to keep the blowing-engine disconnected with the steam supply. 1 This clause of the act is not so broad as that relating to railroads, which gives a right of action for the negligence of any person who has " the charge or control of any signal, switch, locomotive engine, or train upon a railroad." 80 EMPLOYERS' LIABILITY ACTS. Gould was an engineer, and had charge of five blowing engines, including the one in which McKay was killed. He had the aid of a helper, who worked under him, but he operated the machines with his own hands, as directed by persons superior to him in the service. In an. action under the statute by McKay's personal repre- sentative, it was held that Gould was not a superintend- ent within the meaning of the act, but was merely a fellow-servant with McKay, for whose negligence the common employer was not liable. Other cases under the statute,, in which it was held that the plaintiff could not recover because his injury was caused by the negligence of his fellow-servant, are cited in the note. 1 56. Negligence of Employer and Superintendent. In an action to recover damages for the negligence of a superintendent under the statute, the employer cannot escape liability by showing that his own act contributed to the injury. In Connolly v. City of Waltham, 156 Mass. 368, a laborer employed upon the defendant's water-works was injured by the caving in of a trench while he was at work upon it. The defendant's superintendent was negligent in failing to sheet and brace the trench, and in permitting earth to be piled upon the bank ; but the defendant contended that, inasmuch as it had not fur- nished its superintendent with materials for bracing the trench, he was not negligent in failing to brace it, and that therefore it was not liable on a count alleging negli- 1 Ashley v. Hart, 147 Mass. 573 ; Thyng v, Fitchburg Ry., 156 Mass. 13 ; Shepard v, Boston & Maine Ry., 158 Mass. 174. NEGLIGENCE OF SUPERINTENDENT. 81 gence of the superintendent. But the court held that this was too narrow a view of the case ; that, if the superintendent " knew, or had reason to know, that there was danger of the caving of the trench, and had no materials for bracing it, and no power to procure them, due care required him to stop the work until suitable materials were furnished ; and it was personal negligence in his work of superintendence to allow the digging to go on before the necessary materials were procured. For such negligence of a superintendent the principal is answerable, and cannot escape liability by showing that it was by his own act. and not by the fault of the superintendent, that suitable materials were wanting." Per Barker, J., page 370. 57. What is Negligence of Superintendent. Ala- bama Cases. A superintendent's negligence may consist in know- ingly allowing the employer's ways, works, machinery, or plant to be and remain in a defective condition. Thus, in Seaboard Manuf . Co. v. Woodson, 94 Ala. 143, a locomotive fireman was injured by the starting of the engine while he was underneath it oiling and cleaning it. The defect which caused the engine to start was that the throttle-valve leaked, which allowed the steam to pass through into the cylinders, and thus caused the engine to move off without notice to the plaintiff. One count alleged that the plaintiff was injured by reason of the negligence of the defendant's foreman, O O x who was entrusted by the defendant with the exercise of superintendence over the plaintiff, said railroad, its engine, and cars ; that the negligence of said foreman 82 EMPLOYERS' LIABILITY ACTS. consisted in knowingly allowing said engine to be and remain in a defective condition ; and that the defect was a leaky throttle-valve, etc. On demurrer it was held that this count stated a good cause of action under the second subdivision of section 2590 of the Alabama Code. Mr. Justice Walker, for the court, says on page 148 : " Here there is an explicit averment of the negligence of a person intrusted with a superintendence by the employer ; it is shown that he was guilty of such negli- gence whilst in the exercise of such superintendence, and that the injury was caused by reason of the omis- sion of duty which was described as negligent. These averments brought the charge within the terms of the statute, and were sufficiently explicit." It seems that knowledge of the defect by the defend- ant's superintendent is not essential to render the employer liable. In an action under the first clause of section 2590 for an injury caused by a defective brake on a railroad car, it was held that the plaintiff need not allege or prove knowledge by the defendant of the defect in the brake. 1 The act of a yard-master of a railroad company in placing a car on a side track so near to a main track as to knock a brakeman off a train on the latter track, while he is in the ordinary discharge of his duty, is actionable negligence for which the common employer is liable under the superintendence clause of the Ala- bama statute. 2 The act and omission of the superintendent in charge of the construction of a railroad bridge, in placing 1 Louisville &c. Ry. v. Coulton, 86 Ala. 129. 2 Kansas City &c. Ry. v. Burton, 97 Ala. 240. NEGLIGENCE OF SUPERINTENDENT. 83 certain heavy timbers upright and allowing them to stand upright unsecured, are negligence for which the employer is liable to an employee who is injured by the fall of the timbers. 1 58. Same. Massachusetts Cases. A superintendent's negligence may also consist in the failure to take proper precautions to protect em- ployees who are engaged in the process of constructing the defendant's ways, works, machinery, or plant. In Hennessy v. Boston, 161 Mass. 502, the plaintiff, while digging a sewer trench in the streets of Boston, was injured by the caving in of its sides. The trench was about thirty or forty feet long, twelve or thirteen feet deep, three feet wide at the top, and about one and a half feet wide at the bottom. There was no bracing, except two blocks of earth about four feet wide and about twenty-five feet apart. There was a foreman in charge of the work, whose sole or principal duty was that of superintendence. In an action under the stat- ute, it was held that there was evidence from which the jury might have found that the foreman was guilty of negligence, and that the presiding judge erred in order- ing a verdict for the defendant. 2 In O'Keefe v. Brownell, 156 Mass. 131, a workman engaged in labor upon a school-house in process of erection was killed by a heavy truck falling upon his head through an opening in the floor above him. The 1 Collier v. Coggins, 103 Ala. 000 ; 15 So. Rep. 578. 2 If this action had not been under the statute, but at common law, the plaintiff could not have recovered of the defendant, because the foreman was merely a fellow-servant of the plaintiff. Zeigler v. Day, 123 Mass. 152. 84 EMPLOYEES' LIABILITY ACTS. truck was a movable tool designed for rolling loads from one part of the same floor to another. When not in use, it could be easily blocked by nails or bits of wood suitable for cleats ; but when in use in this way no cleats, of course, could be used without destroying its usefulness. While stationary and in use by a fellow- workman in landing heavy planks, the truck fell through an opening in the floor and injured the plaintiff's intestate. In an action under the statute the plaintiff contended that the omission to use some appliance for blocking the truck was negligence of a superintendent, or was a want of superintendence on the employer's part, and also that the absence of blocking appliances constituted a defect in the condition of the defendant's machinery. But the court held that the employer was not liable upon either ground ; that the omission to use a blocking appliance at the time of the injury was the negligence of a fellow-servant, and not of a superintendent, or of a want of superintendence ; and that the absence of such appliance as a permanent attachment to the truck was not a defect in the tools or machine. The failure of a superintendent to discover that a ledge stone had been left for two or three days on a staging in such a position as to be liable to fall from a slight jar, when its position could only be seen from above the staging, is not negligence for which the com- mon employer is liable to a workman injured by the fall of the stone. 1 Nor is the common employer liable under the statute for the failure of his superintendent to warn 1 Carroll v. Willcutt, 163 Mass. 221. NEGLIGENCE OF SUPERINTENDENT. 85 the plaintiff of a danger or defect with which he (the plaintiff) was previously acquainted. 1 59. Negligence must be an Act of Superintendence. In order to recover damages of an employer for the negligence of his superintendent, it must appear that the negligence occurred in the exercise of superintend- ence : it is not sufficient to show that the negligence occurred merely during the period of superintendence. The act complained of must be an act of superintend- ence ; otherwise an action cannot be maintained under the statute. A few illustrations on both sides of the line will render the distinction clear. In McCauley v. Norcross, 155 Mass. 584, a workman engaged upon the second floor of a building in process of erection was injured by the fall of an iron beam upon him through an opening in the floor above. The beam, with several others, had been placed on the third floor, about three and a half feet from the opening, two or three days prior to the injury, and had been allowed to remain there. The defendant's superintendent, while walking about this floor, and in order to pass between the beams and a pile of planks, pushed the beam with his foot, whereupon it swung around upon the other beams and fell through the hole in the floor upon the plaintiff. In an action under the statute, it was held that the fact that it was the superintendent himself who pushed the beam was of no importance, because that was not an act of superintendence ; but that the jury was warranted in finding a lack of proper superin- tendence, for which the defendant was liable, from the 1 Perry v. Old Colony Ry., 164 Mass. 296. 86 EMPLOYERS' LIABILITY ACTS. circumstance that the beams were allowed to remain in such a position for two or three days, a position in which a slight inadvertent push of the foot by a passer-by would send the beam through the opening. The act of a foreman of a gang of workmen engaged in pile-driving, in giving the order to " hoist again " when the gypsy fall was foul of the chocking-block, whereby the hammer was released and the plaintiff in- jured, is an act of superintendence, for which the em- ployer is liable under the Massachusetts act. 1 So, also, allowing the gypsy fall to be handled by a workman obviously intoxicated at the time, who allowed the fall to get foul of the block, is an act of superintendence within the meaning of that statute. 2 In Fitzgerald v. Boston & Albany Ry., 156 Mass. 293, the plaintiff was injured while stowing away hay in the defendant's hay-shed by the fall of a bale of hay upon him. It did not appear what caused the hay to fall, nor that the defendant's superintendent knew, or ought to have known, that the hay was liable to fall. In an action under the statute, it was held that there was no evidence to justify a finding that the superin- tendent was negligent, and that a verdict was properly ordered for the defendant. The reason assigned was that the negligence complained of did not occur in the exercise of superintendence, even if it occurred during the superintendence. Where the article causing the injury is of such a nature that the law does not require the employer to inspect it before allowing it to be used by his em- 1 McPhee v. Scully, 163 Mass. 216. 2 McPhee v. Scully, 163 Mass. 216. NEGLIGENCE OF SUPERINTENDENT. 87 ployees, the failure of the defendant's superintendent to discover an apparent defect therein, before giving it to the plaintiff for use, does not render the defendant liable under the statute, at least where it is outside the superintendent's field of superintendence. Thus, in Shea v. Wellington, 163 Mass. 364, the plaintiff, while blasting in a quarry, was injured by an explosion of dynamite in a drill-hole which he was loading, caused, as he alleged, through the negligence of the defend- ant's superintendent, Watson, in furnishing him with a defective exploder. The plaintiff testified that, on the day of the accident, Watson handed him seven explod- ers to be used in loading seven holes, and that one of them he picked at with his finger-nail and said, " I guess that is all right ; " that the plaintiff saw a seam in the copper covering of the exploder, through which he no- ticed a white substance. There was evidence from other witnesses to the effect that, if there was a seam in the exploder through which the fulminate of mercury could be seen, it would adequately account for the accident. The defendant bought his exploders ready-made from a reputable manufacturer. It was no part of Watson's duty to inspect exploders, nor had he ever done so with the defendant's knowledge and consent. It was held that the defendant was not bound to inspect the exploders before using them, and that, if Watson was negligent in not discovering the defect, his negligence was that of an ordinary employee, and not that of a superintendent, and that the defendant was not liable. 88 EMPLOYERS LIABILITY ACTS. 60. Superintendent doing Work of Common La- borer. Although the negligence causing the injury is that of a person " entrusted with and exercising super- intendence " within the terms of the Massachusetts statute, still if, at the time of and in doing the act complained of, he is merely doing the work of a com- mon laborer, the employer is not liable. " The law recognizes that an employee may have two duties : that he may be a superintendent for some purposes, and also an ordinary workman, and that if negligent in the latter capacity, the employer is not answerable." l For the above reasons it was held that an employer was not liable for the negligence of his engineer, who raised a fall, which swung into the hold of a vessel and to which a hook was attached, when he was ordered to lower it, whereby the hook was pulled out of a work- man's hands and struck the plaintiff. The engineer employed the men, showed them how to do the work, and discharged them. Upon these facts the court held that it might be competent for the jury to find that the engineer was to some extent a superintendent ; but that, as he was acting merely as an ordinary workman at the time of his negligence, the plaintiff could not recover. 2 On the other hand, the employer may be liable under the act for the negligent order of his superintendent, 1 Per Barker, J., in Cashman i>. Chase, 156 Mass. 342, 344. See, also, Shaffers v. General Steam Nav. Co., 10 Q. B. D. 356 ; Kellard v. Rooke, 19 Q. B. D. 585, and 21 Q. B. D. 367. 2 Cashman v. Chase, 156 Mass. 342. NEGLIGENCE OF SUPERINTENDENT. 89 although at the time of the plaintiff's injury the super- intendent is performing manual labor. In Osborne v. Jackson, 11 Q. B. D. 619, the plaintiff, a bricklayer in defendant's employ, was working near a shoring while a scaffold was being taken down by others. The de- fendant's foreman, one Thomas, while holding one end of a plank, called to one Collier to take hold of the other end. Collier took hold of the plank, but was so far off that he could not hold it alone, and as soon as Thomas let go his end the plank slipped and knocked down the shoring, which fell upon the plaintiff and caused the injury complained of. It was held that the defendant was liable. Denman, J., says on page 620 : " The decision in Shaffers v. General Steam Navigation . Co., 10 Q. B. D. 356, was decided on grounds which do not apply here. The negligent person there had two duties, and was not negligent in his duty of super- intendence so as to cause the accident. In the present case the foreman was generally superintending the work on which the plaintiff and Collier were employed. The foreman called to Collier, who was under his orders, to take the plank when it was impossible to do so safely ; that was superintendence, and the judge might find, and has found, that it was negligence within the mean- ing of sub-section 2. I think it was so, although Thomas was at the time supplying as a volunteer the place of another workman." Hawkins, J., says on page 621 : " If Thomas had directed another to do what he did himself, he would surely have been negligent in the exercise of superintendence." 90 EMPLOYERS' LIABILITY ACTS. 61. Temporary Absence of Superintendent. It is well settled that, when the ground of liability is the negligence of a superintendent, the negligence must occur not only during the period of superintendence, but also in the exercise of it. 1 The negligence, how- ever, may consist in his temporary absence from his post of duty, and this is considered to be negligence in the exercise of superintendence within the rule of liability. In Lynch v. Allyn, 160 Mass. 248, the plaintiff was injured by the falling of a bank of earth upon him while he was undermining it, and during the temporary absence of the superintendent, whose duty it was to look after the bank and the men. The bank was not shored up in any way, and when the superintendent left the spot he failed to station any one there to give warning of the 'danger. It was held that it could not be ruled as matter of law that the superintendent was not negligent, and that it was a question for the jury to decide. 62. Instructions upon Matters of Detail. In the prosecution of work there are many matters of detail which devolve upon the common laborer and not upon the superintendent. In such matters the failure of the superintendent to give special instructions is not such negligence on his part as will render the employer liable to an employee who is injured through the negli- gence of a fellow-servant. In Burns v. Washburn, 160 Mass. 457, a mason's 1 Fitzgerald v. Boston & Albany Ry., 156 Mass. 293 ; Cashman v. Chase, 156 Mass. 342 ; ante, 59. NEGLIGENCE OF SUPERINTENDENT. 91 tender was injured by a staging falling upon him. The immediate cause of its fall was the negligence of one of O O the masons in driving but one nail in the end of a board instead of several nails. The defendant's superintend- ent told the masons to build a certain piece of wall, leaving them to construct their stagings without instruc- tions. The plaintiff claimed that this failure to instruct the masons how to build their stagings, and his absence during their building, was negligence of the superin- tendent within the meaning of the act, for which the O * employer was liable. But the court held that the plain- tiff could not recover. In delivering the opinion of the court, Mr. Justice Lathrop says on page 458 : " The mere fact that the superintendent gave no instructions as to the staging cannot be said to be evi- dence of negligence on his part. No instructions were needed. The masons were accustomed to build their own stagings, and probably knew as much about the proper way of constructing them as the superintendent. Nor is the fact that the superintendent was not pres- ent while the staging was building of itself evidence of negligence on his part. A general superintendent of a building cannot be expected to be present as every detail of the work is done." 1 63. Conflicting Evidence as to whether Person caus- ing Injury is a Superintendent : Jury to decide. If the plaintiff's evidence tends to show that the person whose negligence caused the plaintiff's injury is a superintendent within the meaning of the statute, and the evidence for the defendant tends to show that such 1 Citing Fitzgerald v. Boston & Albany Ry., 156 Mass. 293. 92 EMPLOYERS' LIABILITY ACTS. person is merely a fellow-servant, the question should be submitted to the jury for determination. 1 But where all the evidence in favor of the plaintiff fails to show that such person is a superintendent within the meaning of the statute, the presiding judge should so instruct the jury, and, if the plaintiff's case is founded solely on that ground, a verdict should be ordered for the defendant. 2 The question, whether a superior servant is a vice- principal or merely a fellow-servant, is a question of law for the court to decide, when there is no conflict of evidence, and it is therefore erroneous for the judge to submit that question to the jury. 3 But when the evidence upon this point is conflicting, the question should be left to the jury. 4 64. That Superintendent is a Careful Workman is no Defence. In an action under the statute for the negligence of a superintendent, it is no defence to show that he was a careful workman, 5 or that the defendant had exercised due care in selecting him. To hold otherwise would be a palpable evasion of the statute, and would render this clause of the act nugatory. 1 Malcolm v. Fuller, 152 Mass. 160. 2 O'Neil v. O'Leary, 164 Mass. 387. 8 Johnson v. Boston Tow-Boat Co., 135 Mass. 209 ; McGinty v. Athol Reservoir Co., 155 Mass. 183, 187. 4 Patnode v. Warren Cotton Mills, 157 Mass. 283, 287. * Malcolm v. Fuller, 152 Mass. 160. NEGLIGENCE OF SUPERINTENDENT. 93 65. Common Employment under Different Em- ployers. The mere fact that employees are engaged in labor upon the same piece of work does not make them fel- low-servants within the rule which exempts the em- ployer from liability for negligence of his servants. To come within this rule, the employees must have the same employer. If they are servants of different masters, they are not fellow-servants within this rule, and the employee of one master can recover damages of the other master for an injury caused by the negligence of the latter's servants. 1 In such case the injured employee cannot be said to take upon himself the risk of negligence coming from the servant of another master. Nor has he any ade- quate means of guarding against such negligence. In the case of a common employer, on the other hand, " each [employee] is an observer of the conduct of the others ; can give notice of any misconduct, incapacity, or neglect of duty, and leave the service if the common employer will not take such precautions, and employ such agents, as the safety of the whole party may require." 2 66. General and Special Servants. The general servant of one master may become the special servant of another master for the time being. 1 Morgan v. Smith, 159 Mass. 570 ; Bun-ill v. Eddy, 160 Mass. 198 ; Johnson v. Lindsay, [1891] A. C. 371, reversing Johnson v. Lindsay, 23 Q. B. D. 508. 2 Per Shaw, C. J., in Farwell v. Boston & Worcester Ry., 4 Met. 49. 59. 94 EMPLOYERS' LIABILITY ACTS. In such case the special servant becomes a fellow- servant with the general servants of the latter master, so as to exempt him from liability to his special servant for the negligence of his general servants. Thus, if A lends his servant to B for a particular piece of work, and the servant is injured by the negligence of B's gen- eral servants, he cannot recover of B because they are considered fellow-servants. 1 But in order to relieve the new master in such case, it must appear that the servant knew that he had ceased to be under the control of the master employing him, and had passed under the control of the new master. In Morgan v. Smith, 159 Mass. 570, 571, the following extract from the opinion of Lord Watson in Johnson v. Lindsay, [1891] A. C. 371, is quoted with approval as correctly stating the rule and its limitations : " I can well conceive that the general servant of A might, by working towards a common end along with the servants of B, and submitting himself to the control and orders of B, become pro hac vice B's servant, in such sense as not only to disable him from recovering from B for injuries sustained through the fault of B's proper servants, but to exclude the liability of A for injury occasioned, by his fault, to B's own workmen. In order to produce that result, the circumstances must, in my opinion, be such as to show conclusively that the servant submitted himself to the control of another person than his proper master, and either expressly or impliedly consented to accept that other person as his master for the purposes of the common employment.' " 2 1 Hasty v. Sears, 157 Mass. 123. 2 See, also, Philadelphia &c. Ry. v. Bitzer, 58 Md. 372 ; Svenson v . NEGLIGENCE OF SUPERINTENDENT. 95 It follows from these views that, if the general em- ployee of one person is injured through the negligence of the defendant's superintendent, or of a person in his employ to whose orders the plaintiff was bound to con- form, and did conform, while in the temporary employ of the defendant, he may recover under the Employers' Liability Act in an action against his temporary em- ployer. 1 67. Injury to Superior Officer or other Employee not under the Superintendence of the Negligent Su- perintendent. The fact that the injured employee is not subject to the orders or under the superintendence of the super- intendent whose negligence causes the injury does not prevent a recovery under the Employers' Liability Act against the common employer. In Kansas City &c. Ry. v. Burton, 97 Ala. 240, a brakeman was injured through the negligence of a yard- master in placing a car too near a track, by which the plaintiff, who was passing on a car upon another track, was knocked off. The defendant contended that, as the plaintiff was not under the superintendence of the yard- master, the statute imposed no liability. But the court held the contrary, saying through Mr. Justice McClellan on page 246 : " Under sub-section 2, it is manifest, we think, the liability of the defendant is in no sense dependent upon the relations existing in the service between the negligent and the injured person. If the Atlantic Mail Co., 57 N. Y. 108 ; Phillips v. Chicago &c. Ry., 64 Wis. 475 ; Sawyer v. Rutland &c. Ry., 27 Vt. 370 ; Cameron v. Nystrom, [1893] A. C. 308. 1 Wild v. Waygood, [1892] 1 Q. B. 783. 96 EMPLOYEES' LIABILITY ACTS. former has superintendence intrusted to him, and is neg- ligent in the exercise of it to the injury of any ' servant or employee in the service or business of the master/ whatever be the relation inter se of the servants, the master is made liable therefor by the very terms of the statute. If. a yard-master, charged with the duty of keeping the tracks clear, should negligently obstruct a track, and in consequence the president of the com- pany should be injured in the service of the employer, the corporation, it cannot be doubted that the latter would have to respond in damages." 68. Employee liable to Co-employee for Negligence. The rule, that an employee cannot recover of the common employer for the negligence of a co-employee, does not bar the injured person of all remedy. He has the right at common law to sue his co-employee, and may recover a judgment for damages to the full extent of his injury. 1 The difficulty occurs in obtaining satis- faction of the judgment, as most employees are unable to pay large sums. The Colorado Employers' Liability Act expressly declares upon this point that " If the injury sustained by the employee is clearly the result of the negligence, carelessness, or misconduct of a co-employee, the co-employee 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," etc. 2 1 Osborne v. Morgan, 130 Mass. 102 (overruling Albro v. Jacquith, 4 Gray, 99) ; Hinds v. Overacker, 66 Ind. 547 ; Griffiths . Wolfram, 22 Minn. 185 ; Swainson v. Northeastern Ry.,3 Ex. Div. 341 ; Winterbottom v. Wright, 10 M. & W- 109 ; Milligan v. Wedge, 12 Ad. & El. 737. 2 St. 1893, ch. 77, 5. CHAPTER V. LIABILITY PECULIAR TO RAILROAD EMPLOYERS. Section 69. Scope of chapter, and statutory provisions. 70. "Train "defined. 71. " Locomotive engine.' 72. "Car." 73. " Upon a railroad." 74. Statutory defects in freight-cars, grab - irons and draw - bars. Blocking of frogs, switches, and guard-rails. 75. " Charge or control " for tempo- rary purpose. 76. " Charge or control" of train. 77. Brakeman or other employee may have charge or control of train. Section 78. Different views at common law concerning person in charge or control of train. 79. Who may have the charge or control of locomotive engine. 80. Who may have the charge or control of a car. 81. Negligence of person in charge or control of signal, switch, engine, car, etc. 82. Railroads operated by receivers. 83. Same. Prior leave of appoint- ing court to sue. 84. Constitutionality. Discrimina- tion against railroads. 85. Same. 69. Scope, of Chapter, and Statutory Provisions. THIS chapter does not include all cases of liability of railroad companies under the acts, but merely those cases which are exceptional and peculiar to railroads. Other cases are discussed under then- appropriate titles in other parts of the book. 1 As applied to railroad companies, the defence of fel- low-service has been much further restricted by the Employers' Liability Acts than as applied to other employers. As we have seen, other employers are 1 See, particularly, 168, 169. 98 EMPLOYERS' LIABILITY ACTS. made liable for the negligence of their superintendents. 1 Railroad companies are not only made liable by the Massachusetts act for a superintendent's negligence, 2 but also for " the negligence of any person in the ser- vice of the employer who has the charge or control of any signal, switch, locomotive engine, or train upon a railroad." 3 The English and Colorado statutes are to the same effect, though the English act uses the word " points " instead of " switch." 4 The Alabama act goes still further in this direction, and makes a railroad company liable for " the negli- gence of any person in the service or employment of the master or employer who has the charge or control of any signal, points, locomotive engine, switch, car, or train upon a railway, or of any part of the track of a railway." 5 70. " Train " defined. The Massachusetts act gives a right of action to an employee of a railroad company who is injured " by reason of the negligence of any person in the service of the employer who has charge or control of any . . . train upon a railroad." To constitute a " train " within the meaning of the statute, it is not necessary that the cars should be attached to a locomotive at the moment of the injury, 1 Ante, 48, 49. 2 Davis v. New York &c. Ry., 159 Mass. 532. 8 St. 1887, eh. 270, 1, cl. 3 ; Perry v. Old Colony Ry., 164 Mass. 296. 4 43 & 44 Viet. cap. 42, s. 1, sub-s. 5 ; Colo. Sess. Laws, 1893, ch. 77, 1, cl. 3. 5 Alabama Code, 2590, cl. 5. LIABILITY PECULIAR TO RAILROAD EMPLOYERS. 99 or that two or more cars should be coupled together at that time. Thus, in Devine v. Boston & Albany Ry., 159 Mass. 348, a car-cleaner was injured by the car in which she was working striking a bunting-post with unusual force. It appeared that the cars from a train which had recently arrived at their destination were being distributed over the proper tracks under the charge or control of the conductor. Two cars, in one of which was the plaintiff, were kicked off with such force by the locomotive, owing to the failure of the conductor to give the stop-signal in time, that they bumped with great force against the bunting-post. It was held that the jury was justified in finding that the injury was due to the negligence of a person in charge of a train, although the cars were separated from the locomotive at the moment when they struck the post, and that the railroad company was liable in damages. To the same effect is Caron v. Boston & Albany Ry., 164 Mass. 523. In Dacey v. Old Colony Ry., 153 Mass. 112, 115, the court by Knowlton, J., denned a " train," within the meaning of the Massachusetts statute, as "a loco- motive and one or more cars connected together and run upon a railroad."* Under the English act of 1880 it has been held that it is not necessary that a locomotive engine should be attached in order to constitute several cars a " train " within the meaning of the act ; and that a number of trucks propelled along a line of rails in a goods station, by means of a stationary engine at a distance, consti- tutes a " train upon a railway " under section 1, sub-s. 100 EMPLOYERS' LIABILITY ACTS. 5, of the statute. 1 In this case Mr. Justice Mathew says, on page 109 : " Did the twelve trucks constitute a train ? It seems to me that they did. A train is a train, whether consisting of trucks laden with goods, or of carriages filled with passengers. The character of the load makes no difference. Nor do I think that a locomotive engine is essential to the making of a train. The place where the accident occurred was clearly a part of the line of railway." The opinion of Mr. Jus- tice Cave is to the same effect. 71. " Locomotive Engine" Under the English act it has been decided that a steam crane fixed on a trolley, and propelled by steam along a set of rails when necessary to move it, and used for lifting heavy weights in constructing a railway, is not a " locomotive engine " within the meaning of the statute, and that therefore no action could be main- tained for an injury caused by the negligence of the person in charge or control of the crane. 2 Pollock, B., says on page 525 of the case cited below : " The words used in the sub-section, in connection with the term * locomotive engine,' refer exclusively to well-known things connected with the ordinary working of a rail- way. The machine in this case is intended to lift heavy weights of stone, and other materials used in construct- ing a railway, having besides an accidental power of applying its steam force to the trolley. If the legisla- ture had intended to include any such machine, they would have used proper terms." 1 Cox v. Great Western Ry., 9 Q. B. D. 106. 2 Murphy v. Wilson, 52 L. J. (Q. B.) 524. LIABILITY PECULIAR TO RAILROAD EMPLOYERS. 101 72. Car." The Alabama act, making a railroad liable for the negligence of any person having charge or control of a " car," applies to a hand-car as well as to an ordinary car. 1 73. "Upon a fiailroad" A locomotive engine at rest upon the rails of a rail- road round-house, where it had been left for temporary repairs, is not " upon a railroad " within the meaning of the Massachusetts Employers' Liability Act; and therefore one sent to repair it cannot recover for in- juries received through the negligence of the defend- ant's employee in charge or control of the engine. 2 74. Statutory Defects in Freight- Cars, Grab-irons and Draw-bars. Slocking of Frogs, Switches, and Guard-rails. The Massachusetts statute of 1895, ch. 362, requires locomotives and cars used in traffic within the State to be equipped with certain safety appliances. A failure on the part of a railroad corporation doing business within the State to comply with the requirements of this statute would probably render it liable for injuries caused thereby to its employees, under the Employers' Liability Act. The Act of Congress of March 2, 1893, ch. 196, 27 Stat. 531, relating to common carriers en- gaged in interstate commerce, contains like provisions respecting such common carriers and their employees. 1 Richmond &c. Ry. v. Hammond, 93 Ala. 181 ; Kansas City &c. Ry. v. Crocker, 95 Ala. 412. 2 Perry v. Old Colony Ry., 164 Mass. 296 ; 41 N. E. Rep. 289. 102 EMPLOYERS' LIABILITY ACTS. Sections 3 and 4 of this Massachusetts act declare that " Section 3. On and after the first day of July in the present year, and until otherwise ordered by the board of railroad commissioners, no railroad corpora- tion shall use, in moving traffic between points in this Commonwealth, any car which is not provided with secure grab-irons or hand-holds in the ends and sides of each car for greater security to men in coupling and uncoupling cars : provided, that this section shall not apply to flat cars which are equipped with automatic couplers such as are described in section 2. " Section 4. The standard height of draw-bars for freight-cars, measured perpendicularly from the level of the top of the rails to the centres of the draw-bars, shall be thirty-four and one half inches for standard gauge railroads, and twenty-six inches for narrow gauge rail- roads, with a maximum variation from such standard height, in either case, of three inches between the draw- bars of empty and loaded cars ; and, on and after the date last above named, no freight-car, either loaded or unloaded, shall be used in moving traffic between points in this Commonwealth with draw-bars which do not comply with the above standard." Both the Massachusetts statute and the Act of Con- gress above mentioned expressly declare that an em- ployee's continuance in the service with knowledge of the defect shall not be deemed an assumption of the risk of injury. 1 Even if these statutes had not con- tained this provision, the employee injured thereby would not have been precluded from recovering by 1 Mass. St. 1895, ch. 362, 7 ; 27 U. S. Statutes, 531, ch. 196, 8. LIABILITY PECULIAR TO RAILROAD EMPLOYERS. 103 such conduct and knowledge, because the defence based upon the maxim, Volenti nonfit injuria, does not apply when the injury is caused by the employer's breach of a specific statutory duty imposed upon him for the pro- tection of his employees. In Baddeley v. Granville, 19 Q. B. D. 423, this point was expressly decided with respect to the Coal Mines Regulation Act, 1872, which required a banksman to be kept at the mouth of a coal- pit while the miners were going up or down the shaft. The Massachusetts statute of 1894, ch. 41, entitled " An act to provide for the blocking of railroad frogs, switches, and guard-rails," does not contain any pro- vision which prevents such conduct on the part of the employee from amounting to an assumption of the risk of injury caused by a failure of the railroad to comply with the terms of the statute. Section 1 of this act reads as follows : " Section 1. Every railroad corporation shall, before the first day of October in the present year, block, or cause to be blocked, the frogs, switches, and guard-rails, excepting guard-rails on bridges, in or connected with any and all railroad tracks operated or used by it in this Commonwealth, and shall thereafter keep the same so blocked by some method or methods approved by the board of railroad commissioners, so as to prevent employees from being caught therein." 75. " Charge or Control " for Temporary Purpose. Under the Massachusetts and Alabama acts it has been held that, to constitute a person one in " charge or control "of a train, etc., it is not necessary that he should have the general or usual charge or control of 104 EMPLOYERS' LIABILITY ACTS. it, but it is sufficient if he has the charge or control for a temporary purpose, or for the time being. 1 In Steffe v. Old Colony Ry., 156 Mass. 262, 264, 265, Mr. Jus- tice Allen, in delivering the court's opinion, says : " The question is, was there evidence warranting the jury in finding that Thompson, the brakeman, was in charge or control of the train? In the opinion of a majority of the court, there was. The statute obviously implies that some person is to be regarded as being in charge or control of a moving train, and makes the de- fendant responsible for the negligence of any person in its service who has such charge or control. It is not necessary that he should be a conductor, or have any other particular office or position. The statute includes every person, and must be deemed to mean any person who has such charge or control for the time being. Ordinarily, one who is to determine whether the train is to move or remain stationary, and who is to give directions as to the moving or stopping of the train, may be said to be in the charge or control of it. In the case before us, the only persons upon the train were the engineer and the brakeman." In England, however, it has been held by the Court of Appeal in Gibbs v. Great Western Ry., 12 Q. B. D. 208, that to fall within the meaning of the English act of 1880 the person must have the general charge or control, and that a charge or control at a particular time when the negligence was committed is not suf- ficient to render the common employer liable. In this case an engine-driver was killed through the negligence 1 Steffe v. Old Colony Ry., 156 Mass. 262; Louisville &c. Ry. v. Richardson, 100 Ala. 232. LIABILITY PECULIAR TO RAILROAD EMPLOYERS. 105 of one Fisher in leaving the cover of a box containing machinery, which it was his duty to oil, on the track, causing a derailment of the train. The testimony showed that Fisher's duty was to clean, oil, and adjust the wires and locking apparatus connected with the points ; that the points were worked from the signal- box ; that Fisher had a boy to assist him in his work ; and that one Saunders, an inspector, had general charge of the points. It was held that the evidence would not warrant a finding that Fisher had the charge or control of the points within the meaning of the statute. The Master of the Rolls, Brett, says on page 212 : " I think that to be such a person he should be one who has the general charge of the points, and not one who merely has the charge of them at some particular moment." 76. " Charge or Control " of Train. The mere fact that the conductor of a freight train is temporarily absent from the train upon a duty con- nected with the proper management of the train is not conclusive proof that he was not in the " charge or control " of the train at the time of the injury, within the meaning of the Massachusetts act. Upon such evi- dence the jury is justified in finding that he was in the charge or control thereof, and a verdict for the plaintiff will not be set aside on that ground, especially when it does not appear that anything contrary to his orders or expectations was done during his absence. 1 In Dacey v. Old Colony Ry., 153 Mass. 112, a brake- man was killed by being crushed between a moving car which he was in the act of boarding and a stationary 1 Donahoe v. Old Colony Ry., 153 Mass. 356. 106 EMPLOYERS' LIABILITY ACTS. car so near it on another track as to leave a space of less than five inches between them. The injury occurred upon a dark night in the freight yard of the defendant in Taunton, which was an extensive one, with thirteen tracks. The plaintiff, who was the admin- istratrix of the deceased brakeman, contended that the injury was caused by the negligence of a person in the service of the defendant, who had charge or control of a locomotive engine or train upon its railroad, in leaving the stationary car standing so near the other track. The only evidence as to who left this car in its danger- ous position was that during the afternoon the day gang, under the direction of its conductor, had been engaged in placing cars upon that track. The court held that the questions of whether the stationary car was left in that position through the negligence of a person in charge of a train, and whether the brakeman was in the exercise of due care, should have been left to the jury. In Thyng v. Fitchburg Ry., 156 Mass. 13, a freight brakeman was killed by reason of the negligence of some one in putting too short a coupling-pin between two freight-cars, which caused them to break apart and to throw the deceased under the rear car. The train was made up in the yard under the direction of the con- ductor of a switch-engine, and the plaintiff contended that the injury was due to his negligence, and that he was a person in " charge or control " of a train within the meaning of the act. But the court held that the persons who made up the train were fellow-servants of the deceased, and that his administratrix could not recover. The court, speaking through Mr. Justice Knowlton, says : LIABILITY PECULIAR TO EAILROAD EMPLOYERS. 107 " A conductor of a switch-engine which is drawing several cars under his direction may be, for the time, in charge of a train consisting of the engine and cars. 1 But there is nothing to show that this conductor of a switch-engine was at any time negligent in his charge or management of such a train, or of the engine attached to it, or that his conduct in reference to such a train had any connection with the accident. His only relation to the train on which the plaintiff [de- ceased] worked was to bring the cars together and make the train up. His duties were ended as soon as the cars were connected so as to make a train. He never had charge or control of those cars as a train, but he was to determine what cars should be brought together to constitute the train, and see that they were properly coupled and ready to be taken away. . . . The legislature in this part of the statute has gone no further than to include those whose duties relate to the charge of a locomotive engine, or the train 'when complete." Page 18. In Caron v. Boston & Albany Ry., 164 Mass. 523, 528, the court, through Mr. Justice Morton, says : " It is the charge or control of which the statute speaks, and not a charge or control ; and it is the charge or control of the train as a connected whole which is meant, not of portions which together form a whole. Thyng v. Fitchburg Railroad, ubi supra. We think, therefore, that by the words ( any person . . . who has the charge or control' is meant a person who, for the time being at least, has immediate authority to direct the movements and management of the train as a 1 Citing Dacey v. Old Colony Ry., 153 Mass. 112. 108 EMPLOYERS' LIABILITY ACTS. whole, and of the men engaged upon it." It was accordingly held that a brakeman acting under the supervision of a conductor is not a person in the charge or control of a train. 77. Brakeman or Other Employee may have Charge or Control of a Train. By the Massachusetts statute a railroad company is made liable to its employees for the negligence of " any person " in its service who has charge or control of a train. It is not necessary that such person should be a conductor, or have any particular office. " Ordi- narily, one who is to determine whether the train is to move or remain stationary, and who is to give direc- tions as to the moving or stopping of the train, may be said to be in the charge or control of it." A brake- man may be such a person. Thus in Steffe v. Old Colony Ry., 156 Mass. 262, a car-inspector was injured through the negligence of a brakeman on a train who failed to give him warning of its approach or to stop the train. The engineer and the brakeman were the only persons upon the train ; the train was backing, and the brakeman was stationed at the rear end of the car to watch the track, and to warn any person on the track of its approach, and to stop the train either by the automatic brake or by signalling to the engineer. It was held that this evidence warranted the jury in finding that the brake- man was in charge or control of the train, and that the railroad company was liable for his negligence. In the language of the court, by Allen, J. : " The statute includes every person, and must be deemed to mean LIABILITY PECULIAR TO RAILROAD EMPLOYERS. 109 any person, who has charge or control for the time being." Page 264. If the action had been at com- mon law, the plaintiff could not have recovered. 1 Under the English statute, it has been held that a " capstan-man " may be a person in charge or control of a train. In Cox v. Great Western By., 9 Q. B. D. 106, the plaintiff was injured through the negligence of a person in the defendant's employ known as a " capstan- man," whose duty it was to propel, by means of a stationary engine at a distance, trucks laden with goods along a line of rails in a goods station. His negligence consisted in a failure to give the usual warning that he had sent the trucks down the line towards the plain- tiff, who was engaged in similar work at the other end of the line, about one hundred yards distant. It was held that the evidence would warrant a finding that the capstan-man was a person in charge or control of a train upon a railway. 78. Different Views at Common Law concerning Person in Charge or Control of Train. At common law, in most jurisdictions, the conductor or other person having the charge or control of a moving train is deemed a fellow-servant with a common laborer employed upon the track, and therefore the railroad company is not liable to either for an injury caused by the negligence of the other employee. The different views are thus summarized by the Supreme Court of the United States, speaking through Mr. Justice Brown, in the recent case of Northern Pacific By.- v. Hambly, 154 U. S., 349, 355, 356 : 1 Gillshannon v. Stony Brook Ry., 10 Cush. 228 ; Seaver v. Boston & Maine Ry., 14 Gray, 466. 110 EMPLOYERS'. LIABILITY ACTS. " There is probably no subject connected with the law of negligence which has given rise to more variety of opinion than that of fellow-service. The authorities are hopelessly divided upon the general subject as well as upon the question here involved. It is useless to attempt an analysis of the cases which have arisen in the courts of the several States, since they are wholly irreconcilable in principle, and too numerous even to justify citation. It may be said in general that, as between laborers employed upon a railroad track and the conductor or other employees of a moving train, the courts of Massachusetts, Rhode Island, New York, Indiana, Iowa, Michigan, North Carolina, Minnesota, Maine, Texas, California, Maryland, Pennsylvania, Arkansas, and Wisconsin hold the relation of fellow- servants to exist ; * while in Illinois, Missouri, Virginia, Ohio, and Kentucky the rule is apparently the other way. 2 The cases in Tennessee seem to be divided." 3 1 Citing Far-well v. Boston & Worcester Ry., 4 Met. 49 ; Clifford v. Old Colony Ry., 141 Mass. 564 ; Brodeur v. Valley Falls Co., 16 R. I. 448 ; Harvey v. New York Central Ry., 88 N. Y. 481 ; Gormley v. Ohio &c. Ry., 72 Ind. 31 ; Collins v. St. Panl &c. Ry., 30 Minn. 31 ; Pennsylvania Ry. v. Wachter, 60 Md. 395 ; Houston &c. Ry. v. Rider, 62 Texas, 267 ; St. Louis &c. Ry. v. Shackelford, 42 Ark. 417 ; Blake v. Maine Central Ry., 70 Me. 60 ; Ryan v. Cumberland Valley Ry., 23 Pa. St. 384 ; Sullivan v. Mississippi &c. Ry., 11 Iowa, 421 ; Fowler v. Chicago &c. Ry., 61 Wis. 159 ; Kirk v. Atlantic &c. Ry., 94 N. C. 625 ; Quincy Mining Co. v. Kitts, 42 Mich. 34 ; Keystone Bridge Co. v. Newberry, 96 Pa. St. 246. 2 Citing Chicago &c. Ry. v. Moranda, 93 111. 302 ; Sullivan v. Missouri Pacific Ry., 97 Mo. 113 ; Richmond &c. Ry. v. Normont, 4 S. E. Rep. 211 ; Dick v. Railroad Co., 38 Ohio St. 389 ; Louisville &c. Ry. v. Caven, 9 Bush (Ky.), 559 ; Madden v. Chesapeake &c. Ry., 28 W. Va. 610. 8 Citing East Tennessee &c. Ry. v. Rush, 15 Lea, 145 ; Louisville &c. Ry. v. Robertson, 9 Heisk. 276 ; Haley v. Mobile &c. Ry., 7 Baxter, 239 ; Nashville &c. Ry. v. Jones, 9 Heisk. 27 ; East Tennessee &c. Ry. v. Gurley, 12 Lea, 46. LIABILITY PECULIAR TO RAILROAD EMPLOYERS. Ill The point decided in Northern Pacific Ry. v. Hambly, 154 U. S. 349, was that the conductor and engineer of a railroad train are fellow-servants with a common day-laborer, who, while working for the com- pany under a section boss on a culvert, receives an injury through their negligence in moving and oper- ating a passenger train, and he therefore cannot recover of the common employer, the railroad company. 1 A conductor is not a fellow-servant with the engi- neer of the same train, because the conductor has the general management and control of the train and rep- resents the common employer, the railroad company. Hence the railroad company is liable to the engineer for an injury caused by the negligence of the con- ductor. 2 A conductor is a vice-principal towards a brakeman on the same train, and the railroad company is liable to the brakeman for an injury caused through the conductor's negligence. 3 79. Who may have the Charge or Control of Loco- motive Engine. In Louisville &c. Ry. v. Richardson, 100 Ala. 232, the plaintiff, while engaged in wiping grease off of a switch-engine, was scalded through the negligence of a hostler in opening the throttle and permitting the steam to blow out into his face. The engineer was 1 Following Randall v. Baltimore & Ohio Ry., 109 U. S. 478 ; Quebec Steamship Co. v. Merchant, 133 U. S. 375 ; Baltimore & Ohio Ry. v. Baugh, 149 U. S. 368 : distinguishing Chicago &c. Ry. v. Ross, 112 U. S. 377. 2 Chicago &c. Ry. v. Ross, 112 U. S. 377, 394. 8 Canadian Pacific Ry. v. Johnston, 61 Fed. Rep. 738. 112 EMPLOYERS' LIABILITY ACTS. standing on the ground, packing a gland-valve. There was evidence that the hostler, whose regular duty it was to move road-engines about the yard, had been ordered not to move switch-engines, but that he fre- quently did move them, and that he got on the engine at the time in question for the purpose of moving it. There was no evidence that the engineer and hostler had any joint control over the engine. The presiding justice refused to rule that, if the engineer was in charge or control of the engine at the time of the acci- dent, the plaintiff could not recover. On appeal, how- ever, it was held that the refusal to give the instruction requested was reversible error. In the court's opinion, delivered by Mr. Justice Haralson, it is said on page 236: " The question as to what person, on the occasion of the injury to the plaintiff, had charge or control of the engine, is one of fact, properly left to the jury, with instructions under the evidence in the cause. Generally, we would say, especially when he is on and running the engine, or has the actual custody, that the engineer has control of it. It may be, however, when he is not in the active manipulation of it, that other persons control it. It will not do to say, therefore, as a matter of law, who has the control or charge of an ' o engine, at any particular time, when it is fairly infer- able from the evidence that cither one or the other of two persons may have such control. In each par- ticular case time, place, and circumstances must deter- mine the question of immediate control." In Louisville &c. Ry. v. Mothershed, 97 Ala. 261, 267, Mr. Justice Coleman, in delivering the court's LIABILITY PECULIAR TO RAILROAD EMPLOYERS. 113 opinion, says : " If McNutt, the yard-master and the superior of all the other employees present, personally took the place of the engineer and was running the engine at the time of the accident, the defendant rail- road company would be liable for his negligence, the same as if the engineer himself had been in charge and had been guilty of the same act of negligence." At common law, the engineer and fireman of a loco- motive engine are fellow-servants, and their common O ' employer, the railroad company, is not liable to either for the negligence of the other. Even when the engine is run alone without a train attached, and a rule of the company provides that in such case the engineer shall be " regarded as conductor, and will act accordingly," the company is not liable to the fireman for the negli- gence of the engineer. 1 80. Who may have the Charge or Control of a Car. The foreman of a gang of men using a hand-car may be a person in charge or control of a car, within the meaning of the Alabama statute. 2 At common law, a car-inspector is a fellow-servant with a freight brakeman, and therefore the common employer is not liable to the brakeman for the negli- gent act of the inspector. 3 1 Baltimore & Ohio Ry. v. Baugh, 149 U. S. 368. (Contra in Ohio, it seems, where the doctrine of " superior servant " prevails. Little Miami Ry. v. Stevens, 20 Ohio, 415 ; Cleveland &c. Ry. v. Keary, 3 Ohio St. 201 ; Berea Stone Co. v. Kraft, 31 Ohio St. 287, 291, 292.) 2 Kansas City &c. Ry. v. Crocker, 95 Ala. 412. 8 Smoot v. Mobile &c. Ry., 67 Ala. 13 ; Dewey v. Detroit &c. Ry., 97 Mich. 329. Contra, Cooper v. Pittsburgh &c. Ry., 24 W. Va. 37 ; Mis- souri Pacific Ry. v. Condon, 17 Am. & Eng. R. R. Cases, 589 ; 8. C., 78 Mo. 567. 114 EMPLOYERS' LIABILITY ACTS. 81. Negligence of Person in Charge or Control of Signal, Switch, Engine, Car, etc. In Richmond &c. Ry. v. Jones, 92 Ala. 218, a switch- man while uncoupling cars was injured by the backing of the locomotive and its collision with the car. The plaintiff was standing on the foot-board of the engine- tender, and gave the signal by his lantern to go ahead. The fireman gave the signal to the engineer to back. The presiding judge charged the jury that, if the fireman was placed there to receive signals from the switchman, and to communicate them to the engineer, and that instead of giving the go-ahead signal he gave the back-up signal, and thereby caused the plaintiff's injury, the plaintiff could recover against the railroad company under the Employers' Liability Act. The Supreme Court, in affirming this ruling, says on page 227, by Mr. Justice Colemari : " The evidence tended to show that it was the duty of firemen to receive signals from switchmen, and trans- mit them to the engineer. If the injury to plaintiff was caused by negligence of the fireman in transmit- ting the signals to the engineer, given to him for that purpose by the plaintiff in the discharge of his duty as a switchman, such injury is clearly within the provision of the Employers' Liability Act." The court does not specify the precise clause under which the defendant was liable, but it seems to fall under the clause making a railroad company liable to its employees for the negligence of any person in its service having the charge or control of any signal, engine, or train upon a railway. LIABILITY PECULIAR TO RAILROAD EMPLOYERS. 115 A person having the charge or control of railroad cars who places one of them in such close proximity to another track as to knock off a brakeman upon a passing freight-car upon the latter track, while in the proper and careful discharge of his duty, is guilty of negligence, for which the common employer is liable under the Alabama statute. 1 The failure of one in charge of a locomotive engine to stop or slow up in approaching a switch, as required by the rules of the railroad company, is actionable negligence, for which the railroad is liable to another employee for an injury caused thereby. 2 The foreman of a gang of, men on a hand-car who, while the car is in rapid motion on a down grade, sud- denly applies the brake and checks its speed without warning to the men, whereby the plaintiff is thrown off the car and run over, is guilty of negligence ; and if such foreman had the charge or control of the car at the time, an action may be maintained against the com- mon employer, a railroad company, under the Alabama Employers' Liability Act. 3 82. Railroads operated by Receivers. The fact that a railroad is in the hands of a receiver does not prevent an employee from recovering damages for personal injuries received through the negligence of a fellow-servant under the statute of the State of injury. Such a state statute changing the rule of the common law applies to receivers operating railroads 1 Kansas City &c. Ry. v. Burton, 97 Ala. 240. 2 Louisville &c. Ry. v. Mothershed, 97 Ala. 261. 8 Kansas City &c. Ry. v. Crocker, 95 Ala. 412. If 116 EMPLOYERS' LIABILITY ACTS. under appointment from federal courts, as well as to the railroads themselves. 1 83. Same. Prior Leave of Appointing Court to sue. Irrespective of statute, it is held in most jurisdic- tions that a railroad receiver cannot be sued without prior leave of the appointing court. Without such leave the court has no jurisdiction, and must dismiss the suit. 2 Congress has, however, changed this rule in regard to federal receivers, 3 and this statute authorizes suits against such receivers both in the state courts 4 and in the federal courts 5 without prior leave of the appointing court. 84. Constitutionality. Discrimination against Railroads. The fact that the Employers' Liability Acts discrimi- nate against railroads by imposing greater liabilities upon them for personal injuries received by their employees than upon other classes of employers does not render the statutes unconstitutional. With respect to the so-called "railroad acts," which make railroad companies liable for injuries to employees 1 Hornsby v. Eddy, 56 Fed. Rep. 461 ; 8. c., 5 C. C. A. 560 ; Eonse v. Hornsby,67 Fed. Rep. 219 ; Murphy v. Holbrook, 20 Obio St. 137 ; Paige v. Smith, 99 Mass. 395 ; Little v. Duseuberry, 46 N. J. Law, 614. Contra, Turner v. Cross, 83 Tex. 218. 2 Barton v. Barbour, 104 U. S. 126 ; Robinson v. Atlantic &c. Ry., 66 Pa. St. 160; Palys v. Jewett, 32 N. J. Eq. 302 ; Noe v. Gibson, 7 Paige (N. Y.), 513. 3 24 Stat. 554, March 3, 1887, ch. 373, 3. * McNulta v. Lochridge, 141 U. S. 327. 6 Texas &c. Ry. v. Cox, 145 U. S. 593. LIABILITY PECULIAR TO RAILROAD EMPLOYERS. 117 caused by the negligence of co-employees, without imposing that liability upon other classes of employers, it is settled that they are not unconstitutional as depriv- ing railroads of their property without due process of law, nor as denying to them the equal protection of the law, within the meaning of the Fourteenth Amendment to the United States Constitution. 1 In Missouri Pacific Ry. v. Mackey, 127 U. S. 205, a fireman was injured through the negligence of an engineer, both being in the service of the railroad com- pany. The fireman sued the railroad in a state court of Kansas, under the Kansas statute of 1874, which reads as follows : " Every railroad company organized or doing business in this State shall be liable for all damages done to any employee of such company in consequence of any negli- gence of its agents, or by any mismanagement of its engineers or other employees, to any person sustaining such damage." The plaintiff recovered a verdict for $12,000, and, after judgment in the state court, the defendant carried the case up to the United States Supreme Court. That court affirmed the judgment, for the following reasons, as stated by Mr. Justice Field : " At the trial, and in the Supreme Court of the State, it was contended by the defendant (and the contention 1 Missouri Pacific Ry. v. Mackey, 127 U. S. 205, affirming Missouri Pacific Ry. v. Mackey, 33 Kans. 298 ; Minneapolis &c. Ry. v. Herrick, 127 U. S. 210, affirming Herrick v. Minneapolis &c. Ry., 31 Minn. 11 ; Bucklew v. Central Iowa Ry., 64 Iowa, 603 ; Missouri Pacific Ry. v. Haley, 25 Kans. 35 ; Chicago &c. Ry. v. Pontius, 52 Kans. 264 ; Chicago &c. Ry. v. Pontius, 157 U. S. 209 ; Chicago &c. Ry. v. Stahley, 62 Fed. Rep. 363. 118 EMPLOYERS' LIABILITY ACTS. is renewed here) that the law of Kansas of 1874 is in conflict with the Fourteenth Amendment of the Consti- tution of the United States, in that it deprives the company of its property without due process of law, and denies to it the equal protection of the laws. " In support of the first position the company calls the attention of the court to the rule of law exempting from liability an employer for injuries to employees caused by the negligence or incompetency of a fellow- servant, which prevailed in Kansas and in several other States previous to the act of 1874, unless he had employed such negligent or incompetent servant with- out reasonable inquiry as to his qualifications, or had retained him after knowledge of his negligence or incompetency. The rule of law is conceded where the person injured, and the one by whose negligence or incompetency the injury is caused, are fellow-servants in the same common employment, and acting under the same immediate direction. Chicago & Milwaukee Ry. v. Ross, 112 U. S. 377, 389. Assuming that this rule would apply to the case presented but for the law of Kansas of 1874, the contention of the company, as we understand it, is that that law imposes upon railroad companies a liability not previously existing, in the enforcement of which their property may be taken ; and thus authorizes in such cases the taking 1 * o of property without due process of law, in violation of the Fourteenth Amendment. The plain answer to this contention is, that the liability imposed by the law of .1874 arises only for injuries subsequently committed ; it has no application to past injuries, and it cannot be successfully contended that the State may not prescribe LIABILITY PECULIAR TO RAILROAD EMPLOYERS. 119 the liabilities under which corporations created by its laws shall conduct their business in the future, where no limitation is placed upon its power in this respect by their charters. Legislation to this effect is found in the statute books of every State. The hardship or injustice of the law of Kansas of 1874, if there be any, must be relieved by legislative enactment. The only question for our examination, as the law of 1874 is presented to us in this case, is whether it is in conflict with clauses of the Fourteenth Amendment. The sup- posed hardship and injustice consist in imputing liability to the company where no personal wrong or negligence is chargeable to it or to its directors. But the same hardship and injustice, if there be any, exist when the company, without any wrong or negligence on its part, is charged with injuries to passengers. Whatever care and precaution may be taken in conducting its business or in selecting its servants, if injury happen to the passengers from the negligence or incompetency of the servants, responsibility therefor at once attaches to it. The utmost care on its part will not relieve it from liability if the passenger injured be himself free from contributory negligence. The law of 1874 extends this doctrine and fixes a like liability upon railroad companies where injuries are subsequently suffered by employees, though it may be by the negligence or incompetency of a fellow-servant in the same general employment and acting under the same immediate direction. That its passage was within the competency of the legislature we have no doubt. " The objection, that the law of 1874 deprives the railroad companies of the equal protection of the laws, 120 EMPLOYERS' LIABILITY ACTS. is even less tenable than the one considered. It seems to rest upon the theory that legislation which is special in its character is necessarily within the constitutional V inhibition, but nothing can be further from the fact. The greater part of all legislation is special, either in the objects sought to be attained by it, or in the extent of its application. Laws for the improvement of muni- cipalities, the opening and widening of particular streets, the introduction of water and eras, and other arrange- ^7 J ^j ments for the safety and convenience of their inhab- itants, and laws for the irrigation and drainage of ' O O particular lands, for the construction of levees and the bridging of navigable rivers, are instances of this kind. 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 ; if in conflict at all with that clause, it must be on other grounds. And 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 laws, if all persons brought under its influence are treated alike under the same conditions. A law giving to mechanics a Hen on buildings constructed or repaired by them, for the amount of their work, and a law requiring railroad cor- porations to erect and maintain fences along their roads, separating them from land of adjoining proprie- tors so as to keep cattle off their tracks, are instances of this kind. Such legislation is not obnoxious to the last clause of the Fourteenth Amendment, if all persons subject to it are treated alike under similar circum- stances and conditions in respect both of the privileges 121 conferred and the liabilities imposed. It is conceded that corporations are persons within the meaning of the amendment. Santa Clara County r. Southern Pacific Railroad Co., 118 U. S. 394; Pembina Consolidated Silver Mining and Milling Co. r. Pennsylvania, 125 U. S. 187. But the hazardous character of the busi- ness 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 employees, and no objections, therefore, can be made to the legislation on the ground of its making an unjust discrimination. It meets a particular neces- sity, and all railroad corporations are, without distinc- tion, made subject to the same liabilities. As said by the court below, it is simplv a question of legislative discretion whether the same liabilities shall be applied to carriers by canal and stage-coaches and to persons and corporations using steam in manufactories. See Missouri Pacific Ry. Co. r. Humes, 115 U. S. 512, 523 ; Barbier r. Connolly, 113 U. S. 27 ; Soon Hing r. Crow- ley, 113 U. S. 703> 85. Same. In Minneapolis &c. Ry. r. Emmons, 149 U. S. 364, it was held that a statute of Minnesota requiring all railroad companies to fence their tracks, and making them liable for domestic animals killed or injured by their negligence, and declaring that a failure to build and maintain such fences shall be deemed f *' an act of negligence on the part of such companies," is constitu- 122 EMPLOYEES' LIABILITY ACTS. tional and valid. In delivering the opinion, Mr. Justice Field says, on page 367 : " No discrimination is made against any particular railroad companies or corporations ; all are treated alike, and required to perform the same duty ; and therefore no invasion was attempted of the equality of protection ordained by the Fourteenth Amendment." It has also been decided that such statutes are not contrary to a constitutional provision that all laws shall be of " uniform operation throughout the State." * Nor are they contrary to a clause which prohibits unequal and partial legislation on general subjects. 2 Nor do they impair the obligation of preexisting contracts in the form of a charter granted by the State to a private corporation. 3 Cases in which other constitutional objections to such legislation have been held untenable are cited below. 4 In Alabama, however, contrary to the great weight of authority cited above, it has been decided that a statute giving a right of action to the parent of a minor child killed by the wrongful act of any agent or officer of a corporation or firm, without imposing a like liability upon an individual, discriminates against corporations and firms, and is unconstitutional under article 14, 12, of the state Constitution. 5 This point does not seem to have been raised or decided under the Employers' Lia- bility Act, though many cases against railroads under this clause have been decided. 1 McAunich v. Mississippi &c. Ry., 20 Iowa, 338. 2 Ditberner v. Chicago &c. Ry., 47 Wis. 138. 8 Shelby County v. Scearce, 2 Duvall (Ky.), 576. 4 Sherlock v. Ailing, 93 U. S. 99 ; Georgia Ry. v. Oaks, 52 Ga. 410 ; Boston &c. Ry. v. State, 32 N. H. 215. 4 Smith v. Louisville &c. Ry., 75 Ala. 449. CHAPTER VI. MISCELLANEOUS POINTS. Section 86. I. Negligence' of person en- trusted with duty of seeing that ways, etc., are in proper condition. 87. Same. 88. Same. Inspectors of foreign cars. 89. Same. Road-master and sec- tion foreman. 90. Same. Injury to such person himself. Section 91. II. Negligence of person to whose orders plaintiff was bound to conform. Alabama cases. 92. Same. English cases. 93. III. Injury to employee of in- dependent contractor. 94. Same. Contractor may act in another capacity. I. 86. Negligence of Person entrusted with Duty of seeing that the Ways, etc., are in Proper Con- dition. THE first section of the Massachusetts act of 1887, ch. 270, gives an employee a right of action against an employer when he is injured " (1) By reason of any defect in the condition of the ways, works, or machinery connected with or used in the business of the employer, 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 entrusted by him with the duty of seeing that the ways, works, or machinery were in proper condition." The statutes of England, of Ala- 124 EMPLOYEES' LIABILITY ACTS. bama, of Colorado, and of Indiana all contain like provisions upon this subject. This clause in the Massachusetts statute is chiefly declaratory of common-law principles. Prior to the passage of the act, it was there regarded as part of the employer's duty to use ordinary care in providing suitable ways, works, machinery, and plant for carry- ing on the work, and he could not escape liability to an employee who was injured by a defect therein by delegating the performance of this duty to another employee. 1 The common law of England was different from that of Massachusetts upon this point. In England, before the passage of the act, the employer was not liable for injury to his employee caused by the negligence of a fellow-servant who had been entrusted by the master with this duty. 2 But since the passage of the act the employer is liable for an injury so caused, and, as the right of action is there merely statutory, the employee must comply with the terms and conditions of the statute. 3 At common law the employer was also bound to use ordinary care to provide proper employees to carry on the business, and could not delegate the performance 1 Snow v. Housatonic Ry., 8 Allen, 441 ; Oilman v. Eastern Ry., 13 Allen, 433 ; Lawless v. Connecticut River Ry., 136 Mass. 1 ; Ryalls v. Mechanics' Mills, 150 Mass. 190. See, also, Hough v. Railway Co., 100 U. S. 213 ; Gardner v. Michigan Central Ry., 150 U. S. 349, 359 ; Mullan v. Philadelphia &c. Steamship Co., 78 Pa. St. 25 ; Shanny v. Andros- coggin Mills, 66 Me. 420 ; Ashman v. Flint &c. Ry., 90 Mich. 567. 2 Wilson v. Merry, L. R. 1 H. L. Sc. 326. 3 Griffiths v. Dudley, 9 Q. B. D. 357 ; Morrison v. Baird, 10 Ct. of Sess. Cas. (4th series), 271 ; Yarmouth v. France, 19 Q. B. D. 647. MISCELLANEOUS POINTS. 125 of this duty to any one else. If he was negligent in this respect, either in procuring or in keeping incom- petent employees in his service, and injury resulted to an employee by reason of such incompetency, the employer was liable in damages. 1 87. Same. To justify a recovery under these statutes on the ground of a defect in the condition of the defendant's ways, works, machinery, or plant, it is not sufficient for the plaintiff to show that a defect existed, and that it caused the injury : he must also prove that the defect arose from, or had not been discovered or remedied owing to, the negligence of the employer, or of some person charged with that duty; .and, in the absence of such proof, the judge should direct a verdict for the defendant. 2 In the Alabama case just cited a car- repairer alleged that his injury was caused by a defec- tive brake on a railroad car. While he was engaged in repairing a car which had been put on the repair track for that purpose, and while he was under the car, another car, belonging to another railroad company, which car the defendant railroad was using, was run in upon the repair track with such force as to drive a stationary car upon the car which the plaintiff was repairing, causing his injuries. The foreign car had 1 McPhee v. Scully, 163 Mass. 216 ; Oilman v. Eastern Ry., 13 Allen, 433 ; Keith v. New Haven &c. Ry., 140 Mass. 175 ; Wabash Ry. v. Mc- Daniels, 107 U. S. 454 ; Whittaker v. Delaware &c. Ry., 126 N. Y. 544 ; Baulec v. New York &c. Ry., 59 N. Y. 356 ; Hilts v. Chicago &c. Ry., 55 Mich. 437. 2 Louisville &c. Ry. v. Davis, 91 Ala. 487 ; O'Maley v. South Boston Gas Light Co., 158 Mass. 135, 137. 126 EMPLOYERS' LIABILITY ACTS. 4 a defective brake, which prevented its speed being checked in time to avoid the collision. It had been condemned to the repair track on account of a defec- tive wheel, no defect having been discovered in the brake prior to the accident. The jury returned a ver- dict in favor of the plaintiff for $15,000, upon which judgment was entered in the trial court. In reversing this judgment, the Supreme Court says by Mr. Justice McClellan, on page 494 : " There is evi- dence in this record that the brake was defective ; but this testimony exhibits no tendency whatever to show that the defect was caused by the negligence of the defendant, or any employee, or had not been discovered or remedied because of any negligence on the part of the defendant or its employees. Without such evi- dence, no recovery could be had under that count, and the court should have so instructed the jury, as requested in the fourth charge asked by the defend- ant." 1 On the other hand, the statute has not the effect of cutting down or restricting the common-law rights of the employee, either as to the amount of damages recoverable, or as to the requirement of notice. If, before the passage of the statute, the employee could recover, he can now recover since its passage, without giving notice of the injury. Nor is his recovery limited to the amount stated in the act. In other words, the statute does not codify the whole law upon the subject, and does not prevent an action at common 1 Citing Atchison &c. Ry. v. Ledbetter, 21 Am. & Eng. R. R. Cases, 555 ; 8. c., 34 Kans. 326. MISCELLANEOUS POINTS. 127 law, but leaves open some common-law liabilities and some common-law defences. 1 88. Same. Inspectors of Foreign Cars. At common law in Massachusetts a car-inspector was considered a fellow-servant with a brakeman, engineer, etc., and the railroad company was not liable to the others for his negligence in failing to discover a defect in a foreign car, which the defendant company was merely forwarding for another road and not using for its own benefit. 2 Under the Massachusetts Employers' Liability Act of 1887, however, a car-inspector is a person entrusted with the duty of seeing that the railroad's ways, works, or machinery are in proper condition. 3 As the amendatory act of 1893, ch. 359, provides that " a car in use by or in the possession of a railroad company shall be considered a part of the ways, works, or machinery of the company using or having the same in possession, within the meaning of this act, whether such car is owned by it or by some other company or person," it follows that a railroad company is liable to one of its employees who is injured by the negligence of its car-inspector in fail- ing to properly inspect a foreign car. 4 Even under the act of 1887, before the passage of 1 Ryalls v. Mechanics' Mills, 150 Mass. 190. 2 Mackiu v. Boston & Albany Ry., 135 Mass. 201. See, also, Kelly v. Abbot, 63 Wis. 307 ; Smith v. Flint &c. Ry., 46 Mich. 258. 8 Bowers v. Connecticut River Ry., 162 Mass. 310. 4 This statute of 1893 changes the rule of construction under the act of 1887, adopted in Thyng v. Fitchburg Ry., 156 Mass. 13, in which it was held that such a foreign car was not a part of the " ways, works, or machinery connected with or used in the business of the employer." 128 EMPLOYEES' LIABILITY ACTS. the act of 1893, a railroad company, which allowed a custom or habit to prevail of not inspecting foreign cars which came from a particular direction, was liable to an employee who was injured by such negligence on a car which came from that direction and had not been inspected; for such custom or habit constitutes negligence either of the railroad company itself, or of its superintendent, or of some person, in its service, in failing to provide proper inspection. 1 And at common law, where the inspector is incompetent, the defendant is liable to its injured employee though the car belongs to another road and the defendant is merely forward- ing it. 2 If the employer uses a foreign car for his own benefit, he is bound by the rule which requires him to furnish proper appliances, even in those States which hold the contrary, when he merely forwards the foreign car without using it for his benefit. 3 In Walsh v. New York &c. Ry., 160 Mass. 571, it was held that the jury was warranted in finding, on the evidence, that by the law of Connecticut, where the injury occurred, a railroad company is bound to see that foreign cars are reasonably inspected, even if they are not used by the defendant ; and that by the Con- necticut law the railroad cannot escape liability by delegating this duty to a competent inspector, but is liable for his negligence in failing to inspect. The jury having found such to be the law of Connecticut, 1 Coffee v. New York &c. Ry., 155 Mass. 21. 2 Keith v. New Haven &c. Ry., 140 Mass. 175. 8 Spaulding v. Flynt Granite Co., 159 Mass. 587 ; Cowan v. Chicago &c. Ry., 80 Wis. 284. MISCELLANEOUS POINTS. 129 the Massachusetts court held that the injured employee was entitled to recover damages in Massachusetts, although the common law of Massachusetts was the contrary. 1 89. Same. Road-master and Section Foreman. A road-master and a section foreman of a railroad company are persons entrusted with the duty of seeing that the track is kept in good condition, and if they are negligent .in failing to discover or remedy a defect in the track, by reason of which a locomotive is derailed and the engineer injured, the common employer is liable under the Employers' Liability Act. 2 90. Same. Injury to Such Person Himself. Where the injured employee was himself entrusted with the duty of seeing that the ways, etc., were in proper condition, he cannot recover under the statute for a defect in their condition. In Birmingham Fur- nace Co. v. Gross, 97 Ala. 220, a master mechanic, while repairing a tall chimney of a gas furnace, was overcome by gas, fell off the ladder, and was killed. His administrator claimed that the failure to provide a scaffold or platform instead of a ladder was a defect in the condition of the ways, works, etc., for which the defendant was liable. But it further appeared that the deceased himself was the person entrusted with the duty of seeing that the ways, works, machinery, or plant were in proper condition, and it was accordingly held that the plaintiff could not recover, and that the 1 Mackin v. Boston & Albany Ry., 135 Mass. 201. 2 Kansas City &c. Ry. v. Webb, 97 Ala. 157. 130 EMPLOYEES' LIABILITY ACTS. presiding justice should have ordered a verdict for the defendant. II. 91. Negligence of Person to whose Orders Plaintiff was bound to conform. Alabama Cases. The third clause of 2590 of the Alabama Code gives a right of action to an employee who is injured by reason of the negligence of any person in the ser- vice of the employer to whose orders or directions the employee, at the time of the injury, was bound to con- form, and did conform, if his injury results from having so conformed. The English act of 1880 contains a like provision in section 1, sub-section 3. The Indiana statute of 1893 also has a like clause; but the act itself does not apply to employers in general, but merely to corporate employers, and excepts municipal corporations. The statutes of Massachusetts and of Colorado do not render an employer liable for the neg- ligence of such person. It has been held that this clause in the Alabama act applies only to special orders or directions, in respect to the particular service in which the employee is engaged at the time of the injury, as distinguished from a general order or direction in reference to the discharge of his general service, growing out of the nature and scope of his employment. 1 To recover under this clause, the plaintiff must estab- lish four propositions : (1) that the person who gave the erders was in the service of the defendant; (2) that the plaintiff was bound to conform to the orders 1 Mobile &c. Ry. v. George, 94 Ala. 199, 219. MISCELLANEOUS POINTS. 131 of such person ; (3) that he did conform to such orders, and that his injury resulted from having so conformed ; and (4) that such person was negligent in giving such orders. In Mobile &c. Ry. v. George, 94 Ala. 199, a brake- man was injured while attempting to uncouple cars from an engine. One count alleged that the plaintiff was ordered by the yard-master to uncouple the cars from the engine, but there was no evidence that, at the time of the injury, the yard-master gave him an order to uncouple the cars from the engine. As there was no special order to do the uncoupling of those particu- lar cars and engine, it was held that the plaintiff could not recover under this clause. An order to a switchman to " cut off one car " from a freight train given by a foreman who was five or six car lengths away, where there was no emergency or cause for haste, will not justify the switchman in under- taking to uncouple freight-cars while in motion, and if he is injured in the attempt the railroad company is not liable therefor. 1 92. Same. English Cases. In England it has been decided that it is not neces- sary that the order complained of should be in express words, but that it may be implied from the surround- ing circumstances. In Millward v. Midland Ry., 14 Q. B. D. 68, the plaintiff, a boy fourteen years of age, whose duty it was to assist a carman or van-driver to unload the van, was injured by two heavy iron window- frames falling upon him, which had been left unsecured 1 Davis v. Western Ry., 104 Ala. 000 ; 18 So. Rep. 173. 132 EMPLOYERS' LIABILITY ACTS. in the van. At the time of the accident the plaintiff and the driver were unloading three window-frames, which were secured by two pieces of tarred string. The driver untied the string near the tail end of the van, and the plaintiff untied the other string at the front of the van. The plaintiff testified that the driver gave him no order to untie the string upon this occasion, but that he had done so on other occasions, and that the driver saw him untie it upon this occasion and made no objection. The driver then pulled away one of the frames without securing the other two, and immediately afterwards the two remaining frames fell upon the plaintiff. In an action under this clause of the act it was held that the evidence would warrant a finding that the injury was caused by the negligence of a person to whose orders the plaintiff was bound to conform and did conform, and that the injury resulted from having so conformed, and that the common employer was liable. In Wild v. Waygood, [1892] 1 Q. B. 783, the Court of Appeal held that the plaintiff was entitled to go to the jury, and that the defendant was liable under sub- section 3 of section 1 of the English act of 1880, and that the plaintiff's injury was the result of conforming to the orders of one Duplea. Duplea and the plaintiff, while in the employ of the defendant, were engaged in constructing a lift in a house, and during the course of the work Duplea ordered the plaintiff to put a plank across the well of the lift and to stand upon it. The plaintiff did so, and while he was standing on the plank Duplea pulled the rope which started the lift, causing one end of the plank to fall, and the plaintiff, to save MISCELLANEOUS POINTS. 133 himself from falling down the well, caught hold of another rope, which pulled him up to the pulley and caused the injuries complained of. The defendant contended that the injury was not caused by conform- ing to the order of Duplea, and the lower court so decided; but the Court of Appeal reversed this judg- ment. Lindley, L. J., says on pages 793, 794 : " What was it that produced the injury to the plaintiff? It was the joint effect of the plaintiff being on the plank and the carelessness of Duplea in pulling the string. Those two things are so connected that it is impossible to say that the injury was not caused by these two things, viz., negligence of the person giving the order, and conformity with the order. Under this state of things I think the section plainly applies, and I cannot help thinking that the Divisional Court would have had no difficulty if it had not been for the last part of Lord Coleridge's judgment in Howard v. Bennett, 58 L. J. (Q. B.) 129; 60 L. T. 152. The decision of that case seems to be right enough, but that which is contained in the last part of Lord Coleridge's judgment I must say I cannot agree to." In Howard v. Bennett, 58 L. J. (Q. B.) 129, it was held that the plaintiff was not entitled to a verdict, because the person to whose order he conformed was not a person to whose order he was bound to conform. The plaintiff worked on a calico-printing machine as a back-tenter, and one Dean worked on the same machine as a printer. The machine required two men to work it, and there were eleven such machines in the room, under a foreman. The plaintiff's duty was to keep the calico straight as it passed through the machine. Dean 134 EMPLOYERS' LIABILITY ACTS. stood at the opposite end of the machine, and it was one of his duties to start it. At the time of the accident, Dean told the plaintiff to clean the blanket which went over the cylinder, and while the plaintiff was so engaged, with his fingers between the rollers and the cylinder, Dean, without warning, started the machine, and the plaintiff's fingers were cut off. It was held that Dean was merely a fellow-workman, for whose negligence the common employer was not liable under the act. III. 93. Injury to Employee of Independent Con- tractor. The fourth section of the Massachusetts Employers' Liability Act reads as follows : "Section 4. Whenever an employer enters into a contract, either written or verbal, with an independent contractor to do part of such employer's work, or when- ever 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 employer, such contract or sub-contract shall not bar the liability of the employer for injuries to the employees of such contractor or sub-contractor, 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 some person entrusted by him with the duty of seeing that they were in proper condition." Section 3 of the Colorado act contains a like provi- sion. MISCELLANEOUS POINTS. 135 The statutes of England, of Alabama, and of Indiana do not give the employee of an independent contractor any remedy against the person who employs the inde- pendent contractor. Nor does the common law of these jurisdictions confer a right of action against such person for personal injuries caused to such employee. 1 The purpose of section 4 of the Massachusetts act of 1887, ch. 270, relating to independent contractors, is 61 to enlarge the liability of the employer ; otherwise it is meaningless. The inference from the section plainly is that the employer should be liable when a contractor does part of his work and an employee of the con- tractor is injured by reason of a defect in the condition of the ways, works, machinery, or plant furnished by the employer to the contractor, which has not been discovered or remedied through the negligence of the employer, or of some person entrusted by him with the duty of seeing that they were in proper condition." 2 Independent of statute the rule is firmly established at common law that an employee of an independent contractor cannot recover of the person employing such contractor for a personal injury caused by the negli- gence of the contractor or of his employees. 3 1 Scarborough v. Alabama Midland Ry., 94 Ala. 497 ; Rome &c. Ry. v. Chasteen, 88 Ala. 591 ; Vincennes Water Co. v. White, 124 Ind. 376 ; Johnson v. Lindsay, 23 Q. B. D. 508 ; 8. c., [1891] A. C. 371 ; Cameron v. Nystrom, [1893] A. C. 308. 2 Per Morton, J., for the court in Toomey v. Donovan, 158 Mass. 232, 236. 3 Harkins v. Standard Sugar Refinery, 122 Mass. 400 ; Kansas Central Ry. v. Fitzsinunons, 18 Kans. 34 ; Knight v. Fox, 5 Exch. 721 ; Kelly v. New York, 11 N. T. 432 ; Boswell v. Laird, 8 Cal. 469 ; Rome &c. Ry. v. Chasteen, 88 Ala. 591 ; Scarborough v. Alabama Midland Ry., 94 Ala. 497; McCafferty v. Spuyten Duyvil &c. Ry., 61 N. Y. 178 ; Vincennes Water Co. v. White, 124 Ind. 376 ; Hughes v, Cincinnati &c. Ry., 39 Ohio St. 461. 136 EMPLOYERS' LIABILITY ACTS. 94. Same. Contractor may act in Another Capacity. The same person may act both in the capacity of an independent contractor and of a person entrusted by the employer with the duty of seeing that the ways, works, machinery, or plant owned or furnished by the employer are in proper condition. The two capacities are not inconsistent. " One person may sustain different relations to another, as well as different relations to different persons." If the person entrusted with this duty by the employer is negligent in its discharge, the employer is not relieved of liability by proof that such person is also an independent contractor, or sub- contractor, who hired the plaintiff and had power to discharge him and to control his work. 1 1 Toomey v. Donovan, 158 Mass. 232, 236. CHAPTER VII. ATTRIBUTES PECULIAR TO INJURIES RESULTING IN DEATH. Section 95. Scope of chapter. 96. No action for death at common law. Early statutes. 97. Survival of action when the death is not instantaneous, or is preceded by conscious suffering. 98. Release by widow or next of kin. 99. Survival of action when death is instantaneous or without conscious suffering. 100. Where employee who has con- sciously suffered leaves no widow or dependent next of kin. 101. What constitutes instantaneous death, or death without con- scious suffering. 102. Concurring causes of death, Section for one of which defendant is not culpable. 103. Claim for damages as ground for administration. 104. Same. 105. Who may sue when employee dies before action is brought. 106. Same. 107. Former suit or judgment by wrong person no bar to suit by right person. 108. Domestic administrator's right to sue for injury received in another State. 109. Foreign administrator's right to sue. 110. Same. Author's view. 111. Who are " dependent " upon the employee. 112. Action by dependent in Massa- chusetts. 95. Scope of Chapter. THIS chapter treats (1) of the survival of actions ; (2) of the proper person to bring suit when the employee dies before action brought ; (3) of what per- sons are entitled to the proceeds of the suit, if any; (4) of the release of damages ; (5) whether a claim for damages under the act is ground for granting adminis- tration ; (6) who are " dependents " within the terms 138 EMPLOYEES' LIABILITY ACTS. of the statute. It relates to certain attributes which are peculiar to injuries resulting in death. 96. No Action for Death at Common Law. Early Statutes. Irrespective of statute, no action can be maintained for a personal injury resulting in death, whether the death is caused by the negligence of an employer or any one else. At common law, the death of a human being was not considered a proper ground of an action for damages. 1 A like rule applies in the admiralty courts ; and it is well settled that, in the absence of an Act of Congress or of a state statute giving a right of action for the negligent killing of a human being on the high seas or on waters navigable from the sea, no suit can be main- tained in admiralty therefor. 2 This rule of the common law has been modified or changed by statute in England and in nearly all the States. In the case of Insurance Co. v. Brame, 95 U. S. 754, 759, Mr. Justice Hunt says for the court: " By the common law, actions for injury to the person 1 Carey v. Berkshire Ry., 1 Cush. (Mass.) 475 ; Connecticut Mut. Ins. Co. v. New York &c. Ry., 25 Conn. 265 ; Eden v. Lexington &c. Ry., 14 B. Monroe (Ky.), 204 ; Worley v. Cincinnati &c. Ry., 1 Handy (Ohio), 481 ; Hubgh v. New Orleans &c. Ry., 6 La. Ann. 495 ; Hermann v. Carrolltou Ry., 11 La. Ann. 5 ; Green v. Hudson River Ry., 2 Keyes (N. Y.), 294 ; Kramer v. Market Street Ry., 25 Cal. 434 ; Indianapolis &c. Ry. v. Keely, 23 Ind. 133 ; Hyatt v. Adams, 16 Mich. 180 ; Stewart v. Louisville &c. Ry., 83 Ala. 493, 495 ; Harris v. McNamara, 97 Ala. 181, 182 ; Grosso v. Delaware &c. Ry., 50 N. J. L. 317 ; Insurance Co. v. Brame, 95 U. S. 754 ; The Harrisburg, 119 U. S. 199 ; Baker v. Bolton, 1 Camp. 493. Contra, James v. Christy, 18 Mo. 162 ; Shields v. Yonge, 15 Ga. 349 ; McDowell v. Georgia Ry., 60 Ga. 320. 2 The Harrisburg, 119 U. S. 199 ; The Alaska, 130 U. S. 201. ATTRIBUTES PECULIAR TO FATAL INJURIES. 139 abate by death, and cannot be revived or maintained by the executor or the heir. By the Act of Parlia- ment of August 21, 1846, 9 & 10 Viet., 1 an action in certain cases is given to the representatives of the deceased. This principle, in various forms and with various limitations, has been incorporated into the statutes of many of our States." Under the Massachusetts statute of 1842, providing that " the action of trespass on the case for damage to the person shaU hereafter survive," it has been held that the executor or administrator of a person negli- gently killed by the defendant may maintain an action therefor when the death was not instantaneous, 2 but could not maintain such an action when the death was instantaneous, 3 for the reason that the statute supposes the deceased to have been once entitled to an action himself. The fact that the deceased remained in an uncon- scious condition from the time of his injury to his death does not prevent a recovery by his executor or admin- istrator, under the act of 1842, if the death was not instantaneous. No damages can be recovered for his physical or mental suffering, as he is deemed to have had none during his unconsciousness ; but damages may be recovered for the expenses of illness and loss incurred before death by reason of the negligence. 4 When the survival of an action to the executor or 1 Known as Lord Campbell's Act, being cap, 93 of 9 & 10 Victoria. 2 Hollenbeck v. Berkshire Ry., 9 Cush. 478 ; Bancroft v. Boston &c. Ry., 11 Allen, 34. 8 Kearney v. Boston &c. Ry., 9 Cush. 108 ; Moran v. Rollings, 125 Mass. 93. 4 Bancroft v. Boston &c. Ry., 11 Allen, 34. 140 EMPLOYERS' LIABILITY ACTS. administrator depends upon the fact that the death was not instantaneous, the burden of proving that fact rests upon the plaintiff. 1 97. Survival of Action when the Death is not Instan- taneous, or is preceded by Conscious Suffering. The various Employers' Liability Acts change the rule of the common law relating to the survival of actions, and provide that the right of action given thereby shall survive to the personal representative of the deceased employee, or to some member of his family. The Massachusetts act recognizes two kinds of death, and attaches different consequences to them. The first section relates to a death which is not instantaneous, or is preceded by conscious suffering, 2 and reads as follows : " In case the injury results in death, the legal repre- sentatives of such employee shall have the same right of compensation and remedies against the employer as if the employee had not been an employee of nor in the service of the employer, nor engaged in its work." The above section of the original act was amended by the act of 1892, ch. 260, 1, by adding the follow- ing words : " And in case such death is not instantaneous, or is preceded by conscious suffering, said legal representa- tives may, in the action brought under this section, except as hereinafter provided, also recover damages for such death. The total damages awarded hereunder, 1 Corcoran v. Boston & Albany Ry., 133 Mass. 507 ; Riley v. Connecti- cut River Ry., 135 Mass. 292. 2 Daly v. New Jersey Steel Co., 155 Mass. 1, 3. ATTK1BUTES PECULIAR TO FATAL INJURIES, 141 both for said death and said injury, shall not exceed five thousand dollars, and shall be apportioned by the jury between the legal representatives and the per- sons, if any, entitled under the succeeding section of this act to bring an action for instantaneous death. If there are no such persons, then no damages for such death shall be recovered, and the damages, so far as the same are awarded for said death, shall be assessed with reference to the degree of culpability of the em- ployer herein, or the person for whose negligence he is made liable." The effect of these two sections is to empower the " legal representatives " of the deceased employee to sue and recover damages for the conscious suffering of the deceased from the time of the injury to his death ; and also, if he left a widow, or dependent next of kin, ^o recover damages for such death as a substantive cause of action. Under the original act of 1887, a death preceded by conscious suffering was not a sub- stantive cause of action, and the executor or adminis- trator could not recover damages for such death itself, but could recover only for his conscious suffering. 1 The amendment of 1892, therefore, increases the lia- bility of the employer. Under these sections the damages recovered for the conscious suffering of the deceased seem to constitute assets of his estate, and are therefore subject to the claims of his creditors, and to the operation of his will. The damages recovered for the death itself, however, seem to form no part of the assets of the estate, but 1 Ramsdell v. New York &c. Ry., 151 Mass. 245 ; Clark v. New York &c. Ry., 160 Mass. 39. 142 EMPLOYERS' LIABILITY ACTS. to belong to the widow, or dependent next of kin, as being the persons entitled under the succeeding sections of the act. Even in this case, however, the action must be brought in the name of the personal repre- sentative. 98. Release ~by Widow or Next of Kin. Has the widow or dependent next of kin the power to give a release of ah 1 demands, which will bar a recovery under the above sections of the Massachu- setts act ? Under the Minnesota act, giving a right of action to the personal representative of a person killed by negligence, for the benefit of the widow and next of kin, it has been decided that, where the deceased leaves no widow, a release given by the next of kin will bar an action by the administrator. 1 Under a like statute of Nebraska, a release given by the widow before her appointment as administratrix has been held to bar her right to recover damages for herself, but not for the children, as next of kin. 2 Under the New York statute, giving a right of action to the executor or administrator for the benefit of the widow, husband, and next of kin of one killed by the wrongful act, neglect, or default of the defend- ant, it has been held that a release signed by a brother- in-law before his appointment as administrator was no bar to an action for the death brought after his appoint- ment; but that if the money received was expended 1 Sykora v. Case Threshing Machine Co., 58 Minn. 000 ; s. c., 60 N. W. Rep. 1008. 2 Chicago &c. Ry. v. Wymore, 40 Neb. 645 ; 58 N. W. Rep. 1120. ATTRIBUTES PECULIAR TO FATAL INJURIES. 143 for the expenses of funeral and burial, the defendant was entitled to credit therefor. 1 For cases relating to the right of an employee him- self to waive the benefit of the Employers' Liability Act by contract or agreement made before his injury is received, and the effect of such a contract upon his widow or next of kin hi case he is killed, see 6 and 7, ante. 99. Survival of Action when Death is Instantaneous or without Conscious Suffering. The second section of the Massachusetts act of 1887 relates to the case of an employee who is " instantly killed or dies without conscious suffering," and reads as follows : " Section 2. Where an employee is instantly killed, or dies without conscious suffering, as the result of the negligence of an employer, or of the negligence of any person for whose negligence the employer is liable under the provisions of this act, the widow of the deceased, or, in case there is no widow, the next of kin (provided that such next of kin were, at the time of the death of such employee, dependent upon the wages of such employee for support) may maintain an action for damages therefor, and may recover in the same manner, to the same extent, as if the death of the deceased had not been instantaneous, or as if the deceased had con- sciously suffered." Damages recovered under this section are no part of the assets of the estate of the deceased. They are not subject to the operation of his will, nor can they be 1 Stuber v. McEntee, 142 N. Y. 200. 144 EMPLOYERS' LIABILITY ACTS. taken in payment for his debts. They belong exclu- sively to the widow, or, if there is no widow, to the dependent next of kin. The American statutes corresponding to Lord Camp- bell's Act have been uniformly construed in this way. Even when the statute declares that the action shall be brought in the name of the personal representative of the deceased, the damages constitute no part of his estate, if the statute declares that they shall inure to the benefit of the widow or next of kin. 1 Speaking of similar statutory provisions of Connecti- cut, Mr. Justice Barker says for the court in Higgins v. Central New England Ry., 155 Mass. 176, 181 : " The effect of such provisions as to the distribution of the damages is to say that they shall not be assets for the payment of debts, and shall not pass by the will of the deceased, but shall be applied to the com- pensation of the persons who are presumed to have suffered the most by the death of the person injured." 100. Where Employee who has consciously suffered leaves no Widow or Dependent Next of Kin. In such case the Massachusetts act, as amended by the act of 1892, ch. 260, 1, expressly provides that " no damages for such death shall be recovered." The theory of the statute is that an employee's widow, or his dependent next of kin, has such an interest in his life as to render the employer liable in damages to either the widow or such next of kin for negligence causing his death. But if the employee leaves neither a widow nor dependent next of kin, then there is no 1 Stuber v. McEntee, 142 N. Y. 200. ATTRIBUTES PECULIAR TO FATAL INJURIES. 145 person who has such an interest in his life as equitably to entitle him to a right of action against the employer for the death itself. The administrator, however, may maintain an action for the conscious suffering: of the o deceased. 1 Where a statute of this kind gives a right of action to the personal representative of the deceased for the exclusive benefit of the widow or next of kin, no action can be maintained if such persons do not exist, even if the statute omits to declare that no damages shall be recoverable in such case. 2 The burden is also upon the plaintiff to show that the deceased left a widow or next of kin. Under the Alabama Employers' Liability Act, how- ever, which provides that the damages recovered by the personal representative of the deceased employee " shall be distributed according to the statute of dis- tributions," it has been decided that the executor or administrator need not allege that the deceased left any heirs at law or next of kin, as that is a matter of defence, and, in the absence of evidence to the contrary, it will be presumed that he left such heirs or next of kin. 3 It seems, also, that the executor or administrator may recover nominal damages even when the proof shows that the deceased left no heirs or next of kin. 4 1 Ante, 97. 2 Commonwealth v. Eastern Ry., 5 Gray, 473 ; Indianapolis &c. Ry. v. Keely, 23 Ind. 133 ; Chicago &c. Ry. v. Morris, 26 111. 400 ; State v. Gilmore, 4 Foster (N. H.), 461 ; Lyons v. Cleveland &c. Ry., 7 Ohio St. 336 ; Lucas v. New York &c. Ry., 21 Barb. (N. Y.) 245. 8 James v. Richmond &c. Ry., 92 Ala. 231 ; Columbus &c. Ry. v. Bradford, 86 Ala. 574. 4 James v. Richmond &c. Ry., 92 Ala. 231. 146 EMPLOYERS' LIABILITY ACTS. 101. What constitutes Instantaneous Death, or Death without Conscious Suffering. Where a brakeman is knocked from the top of a freight-car by a bridge, evidence that the speed of the train was about twenty miles an hour, and the lesions upon his head were sufficient to produce instant death, and that the defendant's workmen who picked up the dead body were not called as witnesses, will justify the jury in finding that he died instantly, or without con- scious suffering. 1 In Hears v. Boston & Maine Ry., 163 Mass. 150, the plaintiff's husband, a car-inspector in the defendant's employ, was crushed by a car while in the performance of his duty. The testimony tended to show that his body was crushed, and one witness, who was near him at the time, stated that he was " stone-dead " when the witness reached him, though the same witness also tes- tified that the deceased took two or three steps after he was struck and then fell. In this action under the statute by his widow, it was held that the evidence would warrant a finding that he died without conscious suffering. Where, however, the proof leaves to conjecture whether the deceased regained consciousness or not, the next of kin cannot recover, as the burden is upon the plaintiff to prove that he died instantly, or without conscious suffering. Thus, in Hodnett v. Boston & Albany Ry., 156 Mass. 86, an employee was killed by being struck on the back of the head by the end sill of a dump-car going ten or twelve miles an hour, and 1 Maher v. Boston & Albany Ry., 158 Mass. 36. ATTRIBUTES PECULIAR TO FATAL INJURIES. 147 bounced against a stationary car. The blood gushed from his mouth and nose in streams; he was appar- ently unconscious when picked up, and he was injured at 11 A. M. and died at 1 P. M. There was no evidence that from the nature of his injuries* he was unlikely to regain consciousness. It was held that the evidence was not sufficient to warrant a finding that the em- ployee died without conscious suffering. 102. Concurring Causes of Death, for One of which Defendant is not culpable. Where the negligent act, for which the defendant is liable under the Employers' Liability Act, is a sufficient cause to produce death, the defendant cannot escape liability by proof that there was another subsequent cause which was also sufficient to produce death, for which he was not responsible. In Thompson v. Louisville Ry., 91 Ala. 496, a brake- man, while working on a hand-car under the charge or control of one McPherson, was injured through the negligence of McPherson in attempting to stop the car by using a shingle. His attending physicians testified that the injury so received was mortal, and would have produced death without any other cause. A few days after this injury, however, his wife, by mistake, admin- istered to him internally several grains of the poison corrosive sublimate, which the physician had prescribed as a wash for his wounds. Other physicians testified that the wounds were not necessarily fatal, but that they accelerated his death from the effects of the poison. The poison was the immediate cause of the death. It was held that a charge to the jury to find 148 EMPLOYERS' LIABILITY ACTS. for the defendant if' they believed that the deceased died from the effects of the poison, though the death was accelerated by his injuries, was erroneous, for the reason that the defendant could not shelter itself under the plea of a new intervening cause when its own wrongful act was the original and sufficient cause thereof. 1 103. Claim for Damages as Ground for Adminis- tration. Where the statute of the State of injury and of pro- cess requires an action for the negligent killing of a human being to be brought in the name of the personal representative of the deceased, such claim for damages is sufficient property, estate, or assets to authorize the grant of administration in the State of injury, if the deceased was a resident of that State. When the de- ceased was a non-resident of that State, there is some conflict of opinion ; but the better rule seems to be that even in such case the claim for damages will authorize the grant of administration in the State of injury, at least after administration has been obtained at the domicil of the deceased. In Hartford &c. Ry. v. Andrews, 36 Conn. 213, it was held that an administrator appointed at the dom- icil of the deceased (Maine) was entitled as a matter of right to be appointed ancillary administrator in Con- necticut for the purpose of prosecuting a suit for dam- ages for his negligent killing in Connecticut, and that such claim for damages was sufficient to authorize his appointment. The court says that the claim, if valid, 1 See, also, Sauter u. New York Central Ry., 66 N. Y. 50. ATTKIBUTES PECULIAR TO FATAL INJURIES. 149 is property within the meaning of the statute. " It was not the province of the court of probate to pass upon the validity of the claim ; it was enough for that court to be satisfied that there was an apparent claim, and a bona fide intention to pursue it, and that administra- tion was necessary to its pursuit." l A contrary decision, however, has been made in the Kansas case of Perry v. St. Joseph &c. Ry., 29 Kans. 420. In that case a non-resident of Kansas was killed in that State through the negligence of the defendant railroad company. Section 422 of the Kansas Code gave a right of action to the personal representative of the deceased for the benefit of the widow and 'chil- dren, if any, or the next of kin. The plaintiff was appointed administrator in Kansas, upon the ground that this claim for damages was " estate" of the deceased within the State of Kansas. In this action for damages it was held (1) that the claim for damages was not " estate " within the meaning of the statute authorizing the grant of administration upon the estate of a non- resident ; (2) that the probate court was therefore with- out jurisdiction ; 2 (3) that its decree was void, and could be impeached collaterally in this action ; and that the plaintiff could not recover. The Indiana statute gave a right of action to the personal representative of a person killed by the wrong- ful act or omission of another, and declared that the damages "must inure to the exclusive benefit of the widow and children, if any, or next of kin " of the 1 Per Butler, J., for the court, p. 215. 2 See, also, Mallory v. Burlington &c. Ry., 53 Kans. 557 ; 36 Pac. Kep. 1059. 150 EMPLOYERS' LIABILITY ACTS. deceased. One Swayne, a citizen of Pennsylvania, was killed in a railroad accident in Indiana, and his admin- istrator appointed in Indiana brought an action against the railroad. The railroad company then petitioned the probate court to revoke the letters of administra- tion. Swayne left no assets in Indiana, unless this claim for damages was such. On appeal from the pro- bate decree, it was held that the claim for damages was not assets for founding administration on the estate of a non-resident ; that the probate court had no jurisdic- tion, and that the letters should therefore be revoked. 1 In the opinion of the court, delivered by Mr. Justice Elliott, it is said on pages 484, 485 : " The right of action created by the statute is founded on a new grievance, namely, causing the death, and is for the injury sustained thereby by the widow and chil- dren or next of kin of the deceased, for the damages must inure to their exclusive benefit. They are recov- ered in the name of the personal representative of the deceased, but do not become assets of the estate. The relation of the administrator to the fund, when recov- ered, is not that of the representative of the deceased, but of a trustee for the benefit of the widow and next of kin. The action is for their exclusive benefit, and if no such person existed it could not be maintained." 104. Same. When the person killed was neither injured nor dom- iciled in the State granting the letters of administra- tion, the authorities are also conflicting. In Iowa it has been held that a claim for damages under the Hli- 1 Jeffersonville Ry. v. Swayne, 26 Ind. 477. ATTEIBUTES PECULIAR TO FATAL INJURIES. 151 nois act for the negligent killing in Illinois of a resident of Illinois would authorize a probate court of Iowa to grant letters of administration, on the ground that an action for such death could be maintained in Iowa. 1 It was accordingly held that the Iowa administrator could maintain an action in Iowa against the employer of the deceased, the railroad company, for such killing in Illinois, as the Illinois statute gave a right of action for such death, and it was not contrary to the public policy of Iowa. Upon the main proposition the court, by Mr. Justice Rothrock, says on page 728 : " The argument [of defendant] is based upon the claim that the deceased left no estate within this State to be administered upon ; that whatever claim existed against the defendant for damages for the death of Quigley arose under the law of Illinois, where the injury was received, and where the death occurred ; and that by the law of that State a right of action was not in the estate, but in the wife, husband, or next of kin, if there were any surviving. If it be correct, as claimed by appellant, that no right of action existed in this State, it is probably true that there was no estate upon which to administer. But if an action may be main- tained in this State by an administrator, we think it necessarily follows that the circuit court had jurisdic- tion to make the appointment, and it is immaterial in such case whether the decedent was a resident of the State of Illinois or of this State. The power to appoint an administrator in this State, for the sole purpose of collecting a claim due to the decedent, has been too long authorized and recognized to be now questioned." 1 Morris v. Chicago &c. Ry., 65 Iowa, 727. 152 EMPLOYERS' LIABILITY ACTS. In New York, under its statutes relating to the probate or surrogate's court, letters of administration granted by the surrogate are deemed conclusive evidence that the deceased left assets within the county, and the administrator's right to sue cannot be defeated by proof that the deceased was injured in another State (Con- necticut) and left no assets in New York. 1 The reason- ing of the New York court in the case cited is broad enough to apply to the case of a non-resident of New York, and the principal case cited by the court (Rode- rigas v. East River Sav. Inst., 63 N. Y. 460) was that of a non-resident. The Supreme Court of Illinois has decided the con- trary, as applied to an Illinois corporation, where the negligent act was committed by such corporation. In Illinois Central Ry. v. Cragin, 71 111. 177, a resident of Illinois was killed in Illinois by the negligence of an Illinois corporation, for which the Illinois statute gave a right of action. The deceased left no property in Iowa, unless this claim for damages could be considered 1 Leonard v. Columbia Steam Nav. Co., 84 N. Y. 48. There are some limits, however, to the doctrine of the conclusiveness of the appointment of an administrator. A fundamental want of juris- diction may be shown in a collateral proceeding. Thus a state statute, authorizing administration upon the estate of a person who has been absent and unheard of for seven years, is contrary to due process of law and void as applied to a living person ; and the decree of appointment is also void, and may be impeached by him in a collateral proceeding to recover property conveyed by the administrator to a bona fide purchaser for value. This is a question of federal law, and the United States Supreme Court has jurisdiction to review and to reverse a state judg- ment to the contrary. Scott v. McNeal, 154 U. S. 34, reversing Scott v. McNeal, 5 Wash. St. 309, and virtually overruling Roderigas v. East River Sav. Inst., 63 N. Y. 460. See, also, Lavin v. Emigrant Industrial Sav. Bk., 18 Blatch. 1. ATTRIBUTES PECULIAR TO FATAL INJURIES. 153 as situated in Iowa. The plaintiff Cragin, however, obtained letters of administration in Iowa, and brought this suit thereon in Illinois against the railroad com- pany. It was held that the action could not be main- tained, chiefly on the ground that, as the defendant was a corporation of Illinois, no cause of action existed against it in Iowa. The court conceded that the case might be different as applied to individuals. 105. Who may sue when Employee dies before Action is brought. The Alabama Employers' Liability Act provides that the " personal representative " of the deceased employee may maintain an action against the employer. Under this statute it has been held that the executor or admin- istrator of the deceased employee is the only proper person to bring suit, 1 but that if the deceased was a minor child, he could not recover for the time of the minority of the deceased, if his father or mother was alive and was entitled to receive his wages. 2 The Alabama statute, as originally enacted in 1885 (Sess. Acts 1884-^85, p. 115), provided that the " heirs at law" of the deceased employee should have the same right of compensation and remedies against the employer, as if the workman had not been in his service nor engaged in his work. In Stewart v. Louisville &c. Ry., 83 Ala. 493, it was also held under this act that the personal representative was the only person who 1 Columbus &c. Ry. v. Bradford, 86 Ala. 574 ; Lovell v. De Bardelaben Coal Co., 90 Ala. 13 ; Tennessee Coal Co. v. Herndon, 100 Ala. 451. 2 Williams v. South & North Alabama Ry., 91 Ala. 635 ; Alabama Coal Co. v. Pitts, 98 Ala. 285. 154 EMPLOYERS' LIABILITY ACTS. could maintain an action, and that an action brought by two brothers of the deceased, who were his next of kin, could not be maintained. In statutes of a like nature, the words "personal representative " have also been held to mean the exe- cutor or administrator of the person killed by a negli- gent act. 1 When the statute provides that the action may or shall be brought in the name of the personal representative, no one else can maintain an action, not even the widow, or other person entitled to receive the damages. 2 Under the Alabama Employers' Liability Act, a father cannot sue for an injury to his minor son resulting in death : the personal representative is the only person who can sue. The father has no standing in court to recover damages against the employer under that stat- ute. 3 In delivering the opinion of the court in the case just cited, Mr. Justice McClellan says, on page 18 : " In creating this new cause of action, it was, therefore, not only entirely competent for the legislature to confine it, in cases where the injury produced death, to the personal representative, but, in doing so, no existing right to sue was taken away from the parents. If the minor's employment was against the will of the father, he could maintain an action before the i Employers' Act,' and afterwards, though not under it. If with his consent, as in this case, he could sue neither before or after, nor under or without the statute, if we are to 1 McCarty v. New York &c. Ry., 62 Fed. Rep. 437 ; Perry v. St. Joseph &c. Ry., 29 Kans. 420. 2 Selma &c. Ry. v. Lacy, 49 Ga. 106 ; Monaghan v. Horn, 7 Canada Sup. Ct. 409 ; Stewart v. Louisville &c. Ry., 83 Ala. 493. 8 Lovell v. De Bardelaben Coal Co., 90 Ala. 13. ATTRIBUTES PECULIAR TO FATAL INJURIES. 155 give any force whatever to section 2591, which desig- nates the only person who may sue under the act, where the injury results in death, and particularly and per- emptorily makes provision for the disposition of the recovery, which can only be carried out by the personal representative." 106. Same. The Massachusetts act declares that in certain cases the " legal representatives," and in other cases that the widow of the deceased, or, if no widow, the dependent next of kin, may maintain an action under the statute against the employer. This question is explained in the preceding sections of this chapter. The term " legal representative " means the executor or administrator of the deceased employee. In England it has been decided under Lord Camp- bell's Act that a husband, who has lived apart from his wife for years, cannot recover under that statute, on the ground that by such conduct he loses his right to claim the benefit of the act. 1 Nor can a wife who is living in adultery apart from her husband recover under this statute. 2 In the United States, however, it has been held that the fact that husband and wife separated by mutual consent, and each married another person before the husband was killed by the wrongful act of the defend- ant, does not prevent the wife from maintaining an action for such death, under a statute like Lord Camp- bell's Act. 3 1 Harrison v. London &c. By., Times Law Rep., vol. i., p. 519. 2 Stimpson r. Wood, 57 L. J. Q. B. 484. 8 Thomas v. East Tennessee &c. Ry., 63 Fed. Rep. 420. 156 EMPLOYERS' LIABILITY ACTS. In Savannah &c. Ry. v. Smith, 93 Ga. 742 ; s. c., 21 S. E. Rep. 157, it was held that the mother of a minor child who has been abandoned by her husband, and has supported the child, may maintain an action for the killing of the child, by wrongful act, notwithstanding the father is alive. Under the Revised Statutes of Indiana of 1894, 267, providing that a father may maintain an action for the death of a child by the defendant's wrongful act or negligence, a man who marries the mother of a bastard child, and takes him into his home as a member of the family, cannot sue for the child's death. 1 A child en ventre sa mere may recover under such statutes. 2 A bastard cannot recover under Lord Campbell's Act. 3 107. Former Suit or Judgment by Wrong Person No Bar to Suit by Right Person. Where the Employers' Liability Act gives the right of action to the " personal representative " of the deceased employee, as in Alabama, it has been decided that a suit by any one else is no bar to another suit on the same cause of action by the executor or administra- tor of the deceased. 4 A like principle applies also to a former suit brought by any person other than the per- son specified in the statute, or to a former judgment rendered in a suit brought by such person. 1 Thornburgr. American Strawboard Co., 141 Ind. 000; 8. c., 40 N. E. Rep. 1062. 2 The George and Richard, 24 L. T. (N. S.) 717 ; Nelson v. Galveston &c. Ry., 78 Tex. 621. 8 Dickinson v. North Eastern Ry., 2 H. & C. 735. 4 Tennessee Coal Co. v. Herndon, 100 Ala-451. ATTRIBUTES PECULIAR TO FATAL INJURIES. 157 108. Domestic Administrator's Right to sue for Injury received in Another State. In the federal courts the rule is now settled that an administrator appointed in the State of domicil may sue in that State under a statute of another State in which the injury was received. The fact that the deceased had no right of action for the injury him- self, or that the statute creating the right gave it to the personal representative for the benefit of the widow and next of kin, does not defeat his right of recov- ery. 1 This is a question of general law or jurispru- dence upon which the federal courts are not bound by the law or practice of the courts of the State in which they sit. 2 In New York it has been held that an administrator appointed in New York may sue therein for an injury received in Connecticut without showing that adminis- tration had been taken out in Connecticut. 3 In Massachusetts a distinction has been drawn be- tween actions which survive and those which do not survive. When the statute of the State of injury gives a right of action to the injured person, and provides that it shall survive to his personal representative for the benefit of his widow, etc., it has been held that an administrator appointed in Massachusetts, the place of domicil, may maintain an action there for an injury received in Connecticut. 4 But when the statute of the 1 Dennick v. Railroad Co., 103 U. S. 11. 2 Dennick v. Railroad Co., 103 U. S. 11. 8 Leonard v. Columbia Nav. Co., 84 N. Y. 48. 4 Higgins v. Central New England Ry., 155 Mass. 176. 158 EMPLOYERS' LIABILITY ACTS. State of injury failed to provide for the survival of the action, it was held that a Massachusetts administra- tor could not maintain an action in that State. 1 This decision was placed upon the ground that the right of a Massachusetts administrator to sue in that State was confined to causes of action which accrued to the intes- tate during his lifetime, or which grew out of his rights of property or those of his creditors ; and that a specific power to sue created by the statute of another State could not be imparted to a Massachusetts administrator, so as to give him the right to sue in Massachusetts. In Ohio and in Kansas it has also been decided that a domestic administrator, appointed at the domicil of the deceased, could not sue under a statute of another State in which the injury was received. 2 It has also been held in Massachusetts and in Kansas that the fact that the statute of the State of process provides that the right of action shall survive to the personal representative does not enable the domestic administrator to sue for an injury received in another State. 3 109. Foreign Administrator's Right to sue. The general rule is well settled, both in the state and federal courts, that, in the absence of an enabling statute, an executor or administrator appointed in one State cannot sue in another State in his representative 1 Richardson v. New York Central Ry., 98 Mass. 85 ; Davis v. New York &c. Ry., 143 Mass. 301. 2 Woodard v. Michigan Southern Ry., 10 Ohio St. 121 ; McCarthy v. Chicago &c. Ry., 18 Kans. 46. 8 Davis v. New York &c. Ry., 143 Mass. 301 ; McCarthy v. Chicago &c. Ry., 18 Kans. 46. ATTRIBUTES PECULIAR TO FATAL INJURIES. 159 capacity. Unless the laws of the State of process allow a foreign administrator to prosecute a suit therein, he must take out ancillary administration before he can do so. 1 Many States, however, have passed such enabling statutes. Thus, in Indiana, the statute provides that a foreign administrator may sue " in like manner and under like restrictions as a resident administrator ; " and it has been held that an administrator appointed in another State may sue in Indiana, for an injury there received resulting in death, under the Indiana statutes giving a right of action therefor. 2 So, under the Georgia enabling act, it has been decided that an executor or administrator appointed in South Carolina may sue in Georgia, upon complying with certain con- ditions prescribed by the Code, for a death caused by negligence in South Carolina. 3 Where the statute of a State in which an injury resulting in death is received gives a right of action to the personal representative of the deceased for the exclusive benefit of the widow and next of kin, an administrator appointed in that State may sue in another State without taking out ancillary letters ; be- cause the amount recoverable is no part of the assets of the estate, but belongs to the widow and next of kin. 4 The relation of the administrator to the damages, when recovered, is not that of the representative of the 1 Noonan v. Bradley, 9 Wall. 394 ; Lawrence v. Nelson, 143 U. S. 215 ; Langdon v. Potter, 11 Mass. 313 ; Chapman v. Fish, 6 Hill (N. Y.), 554 ; Bell v. Nichols, 38 Ala. 678 ; Oilman v. Oilman, 54 Me. 453. 2 Jeffersonville &c. Ry. v. Hendricks, 41 Ind. 48. South Carolina Ry. v. Nix, 68 Ga. 572. * McCarty v. New York &c. Ry., 62 Fed. Rep. 437. 160 EMPLOYERS' LIABILITY ACTS. deceased, but that of an agent or trustee for the benefit of the widow and next of kin. 1 In Kansas Pacific Ry. v. Cutter, 16 Kans. 568, a similar decision was placed partly on the ground that the term " personal representative " included a foreign administrator, and partly on the ground that the dam- ages recovered were not assets of the estate for the O payment of debts, but belonged exclusively to the widow and children, if any, or next of kin. 2 In Limekiller v. Hannibal &c. Ry., 33 Kans. 83, a resident of Missouri was killed in Kansas. The plaintiff was appointed administratrix in Missouri, and brought this action under 422 of the Kansas Civil Code, which gave a right of action to the personal representative of a person killed by the wrongful act or omission of another, the damages to inure to the exclusive benefit of the widow and children, if any, or next of kin. In Missouri the personal representative had no power to institute such an action, but the hus- band or wife of the deceased had such power. It was held that the plaintiff could not maintain the action, for the reason that her powers or rights in Kansas could be no greater than they were in Missouri, the place of her appointment. 110. Same. Author's View. The true view seems to be to regard an administrator, appointed in a State having such a statute, as a statutory 1 Jeffersonville &c. Ry. v. Swayne, 26 Ind. 477, 484, 485 ; Perry v. St. Joseph &c. Ry., 29 Kans. 420, 422, 423 ; Wooden v. Western New York &c. Ry., 126 N. Y. 10, 15. 2 See, also, Jeffersonville &c. Ry. v. Hendricks, 41 Ind. 48, 72. ATTRIBUTES PECULIAR TO FATAL INJURIES. 161 trustee for the benefit of the widow or next of kin, and entitled to sue as such in another State without ancillary administration therein. He does not sue for the benefit of the estate, but for the benefit of the widow or next of kin. The same statute which creates the right of action designates the personal representa- tive of the deceased as the proper person to bring the suit. The fact that he describes himself as executor or administrator of the deceased does not change the essential nature of the action : it is stiU an action for the benefit of the widow or next of kin, and he is merely the agent or trustee appointed to prosecute it, and to pay over the proceeds, if any, not to the creditors or legatees of the deceased, but to the widow or next of kin. His right or title to the proceeds is not derived from the deceased, but from the statute. The case seems to be analogous to that of a person appointed, under a statute of the State creating a cor- poration, to hold the property of the corporation, after its dissolution, for the benefit of its creditors and stock- holders and others interested in the assets. It has been held that such a statutory trustee or receiver may sue and be sued in the courts of another State without an appointment from the latter State, on the ground that a corporation is the creature of legislation, and may be endowed with such powers as its creator sees fit to give, and that such person is the legal representative of the corporation, and therefore entitled to recognition as such in other States, or in the federal courts sitting in other States. 1 1 Relfe v. Rundle, 103 U. S. 222 ; Parsons v. Charter Oak Ins. Co., 31 Fed. Rep. 305 ; Bockover v. Life Asso., 77 Va. 85. See, also, 199, post. 162 EMPLOYERS' LIABILITY ACTS. This view receives support from the cases holding that a foreign administrator may sue when his suit is not brought in his representative capacity, but in his personal or some other capacity ; as, payee of a note given in payment of property belonging to the estate, 1 or when he has reduced a debt due to the estate to judgment in the State of appointment. 2 111. Who are "Dependent " upon the Employee. In Daly v. New Jersey Steel Co., 155 Mass. 1, it was held that an invalid sister of the employee, who was unable to work regularly or to earn sufficient to pay her doctor's bills, and who received from her brother thirty to thirty-five dollars a month on an average for three or four years, was dependent upon him for support within the meaning of the statute. This decision was placed upon the ground that it was not necessary that the per- son claiming as a dependent should be dependent in the sense that the employee was legally bound, if able, to support the claimant (Mass. Pub. Sts. ch. 84, 6). The fact of dependence was held to be sufficient to bring the claimant within the benefit of the statute. 3 Under statutes giving a right of action for the benefit of the widow and next of kin of the deceased, the damages to be awarded " with reference to the pecuniary injuries resulting from such death to the widow and next of kin," it has also been held that * McCord v. Thompson, 92 Ind. 565. 2 Talmage v. Chapel, 16 Mass. 71 ; Biddle v. Wilkins, 1 Peters, 686 ; Barton v. Higgins, 41 Md. 539 ; Lewis v. Adams, 70 Cal. 403 ; Cherry v. Speight, 28 Tex. 503. For other illustrations, see Doe v. M'Farlaud, 9 Cranch, 151 ; De Forest v. Thompson, 40 Fed. Rep. 375. 8 See, also, Houlihan v. Connecticut River Ry., 164 Mass. 555. ATTRIBUTES PECULIAR TO FATAL INJURIES. 163 a recovery may be had without proof that the bene- ficiary had a legal claim upon the deceased for sup- port. To hold the contrary " would be an interpolation in the statute changing the fair import of its terms, and hence not warranted." 1 In Hodnett v. Boston & Albany Ry., 156 Mass. 86, the claimant was the employee's half-sister. Her testi- mony was that he used to come in and see her, and sometimes gave her money ; that he sent her money every other week or so to pay her rent ; and that she had no means of support for herself and her two chil- dren but her earnings, and since his death she had had to support herself. There was no evidence to show what her earnings or living expenses were. It was held that such evidence would not warrant a jury in finding that the claimant was dependent upon the wages of the employee for support, and that she could not recover under the act. 2 112. Action by Dependent in Massachusetts. Where the employee's death is instantaneous, the action should be brought in the name of the next of kin who is dependent upon the wages of such employee for support. If there are two next of kin, and only one of them is dependent, the action should be brought in his or her name alone, without joining the other. 3 1 Railroad Co. v. Barron, 5 Wall. 90, 106 ; Chicago v. Major, 18 111. 349 ; Pennsylvania Ry. v. McCloskey, 23 Pa. St. 526. 2 As to who are or are not " dependent," see, further, McCarthy v, New England Order of Protection, 153 Mass. 314 ; American Legion of Honor v. Perry, 140 Mass. 580. 8 Daly v. New Jersey Steel Co., 155 Mass. 1. CHAPTER CONTRIBUTORY NEGLIGENCE. Section 113. Contributory negligence is a defence. 114. Exposure to sudden and im- minent danger. 115. Defendant's responsible em- ployees must use reasonable care to avoid injury to the plaintiff when they know he is in a dangerous position. 116. Employee's right to rely upon warning from person. Section 117. Same. 118. Warning from object. 119. Inference of due care. 120. Selecting dangerous mode of performing work when safe way exists. 121. Same. 122. Other illustrations of due care and contributory negligence. 113. Contributory Negligence is a Defence. IT is well settled in the United States, and also in England, that the various Employers' Liability Acts have not abolished the defence of contributory neg- ligence. If the injured employee is guilty of such negligence, he cannot recover under the act. 1 The Massachusetts and Colorado statutes confer the right of action in terms only upon an employee "who is himself in the exercise of due care and diligence at the time," while the English and Alabama statutes are silent upon the subject. In Wilson v. Louisville &c. Ry., 85 Ala. 269, a 1 Geyette v. Fitchburg Ry., 162 Mass. 549 ; Brown v. New York &c. Ry., 158 Mass. 247 ; Mobile &c. Ry. v. Holborn, 84 Ala. 133 ; Columbus &c. Ry. v. Bradford, 86 Ala. 574 ; Richmond &c. Ry. v. Thomasou, 99 Ala. 471 ; Weblin v. Ballard, 17 Q. B. D. 122. CONTRIBUTORY NEGLIGENCE. 165 freight brakeman, while descending from the top of the caboose by a side ladder, was struck by the supply- pipe of a water-tank near the track and injured. The tank was so near the track as not to leave sufficient space between the pipe and a train of cars for the body of a person. The plaintiff had been in the employ of the defendant road for two or three months, and was acquainted with the location and the surroundings of the tank. The accident occurred at three o'clock in the morning, and the plaintiff did not have his lantern with him. He was not descending to discharge a duty required by the nature of his employment, but merely for the purpose of eating his lunch. In an action under the Alabama statute, it was held that the plain- tiff was guilty of contributory negligence and could not recover. In Columbus &c. Ry. v. Bridges, 86 Ala. 448, an engineer of a construction train, who was also acting as conductor, was killed by the falling of a bridge while attempting to take his train across a river during a great flood. The evidence tended to show that the watchman at the bridge gave the safety signal, and the plaintiff contended that the defendant was liable for his act as being a person in " charge or control of any signal, points, ... or of any part of the track of a rail- way." It appeared that in the morning of the same day, while the water was rapidly rising, the deceased had himself examined the bridge, and that in crossing the bridge he was not acting under the orders of any superior officer. It was held that the deceased was guilty of contributory negligence, and that the defend- ant was not liable under the act. EMPLOYERS LIABILITY ACTS. 114. Exposure to Sudden and Imminent Danger. An employee who is injured by the negligence of any one for whose negligence the employer is liable under the Employers' Liability Act, through an expos- ure to a sudden and imminent danger caused by the negligent act of such person, is not required to act with the same coolness and judgment as if the danger were not sudden and unexpected. He will not be guilty of contributory negligence if he exercises the prudence of an ordinary or reasonable person under like circum- stances. 1 In Richmond &c. Ry. v. Farmer, 97 Ala. 141, a section foreman in the employ of the defendant rail- road was injured by a locomotive engine while he was engaged in repairing a broken frog on a trestle. The trestle was about sixty feet long and from four to six feet high. Two engines were standing at opposite ends of the trestle, ready to cross as soon as the frog was repaired. The plaintiff notified one of the engineers to cross over slowly, so that he could watch the frog and switch and see how it worked, and he told the other engineer not to cross until he signalled to him. While the plaintiff was stooping down watching the frog, very shortly after the first engine had passed and before he had signalled for the second engine, the lat- ter started to cross, and the plaintiff knew nothing of its approach until it was close upon him, when some one hallooed to him. In an action under the Employers' Liability Act for the negligence of the engineer in charge of the second engine, it was held that a charge 1 Richmond &c. Ry. v. Farmer, 97 Ala. 141. CONTRIBUTORY NEGLIGENCE. 167 in the following language was correct : " A man under sudden excitement or peril is only required to exercise such care for his own safety as an ordinary, prudent man would have exercised under like circumstances, and, if he exercised such degree of care, then in that he is not guilty of contributory negligence." 115. Defendant's Responsible Employees must use Reasonable Care to avoid Injury to the Plaintiff when they know he is in a Dangerous Position. In Alabama the common-law rule of some jurisdic- tions, that contributory negligence of the plaintiff will not prevent a recovery if the defendant, knowing the plaintiff's dangerous position and negligence, fails to use reasonable care to avoid the injury, 1 has also been applied to actions under the Employers' Liability Act. Of course this rule does not render the common em- ployer liable for the negligence of an ordinary co-em- ployee, but merely for that of a responsible employee, such as a superintendent, or, in the case of a railroad, a person having the charge or control. In Hissong v. Richmond &c. Ry., 91 Ala. 514, a switchman was injured while attempting to couple two railroad cars. The plaintiff testified that he first at- tempted to couple the cars with a stick, as required by 1 Inland Coasting Co. v. Tolson, 139 U. S. 551 ; Lucas v. New Bed- ford &c. Ry., 6 Gray, 64, 72 ; Radley v. London &c. Ry., 1 App. Cas. 754 ; Tanner v. Louisville &e. Ry., 60 Ala. 621 ; Cook P. Central Ry., 67 Ala. 533 ; Louisville &c. Ry. v. Watson, 90 Ala. 68 ; Romick v. Chicago &c. Ry., 62 Iowa, 167 ; 8. c., 15 Am. & Eng. R. R. Cases, 288 ; Denver Rapid Transit Co. v. Dwyer, 20 Colo. 132, 36 Pac. Rep. 1106 ; Kansas Pacific Ry. v. Craumer, 4 Colo. 524 ; Austin v. New Jersey Steamboat Co., 43 N. Y. 75, 82. 168 EMPLOYERS' LIABILITY ACTS. the rules of the company, but could not do so because the draw-heads of the cars were not of the same height ; that he then signalled the engineer to stop the train, and when it had stopped he went in between the cars to make the coupling by hand ; that when he had been working on the pin thirty or forty seconds, and before he had made the coupling, the engineer moved the car backwards upon him and thereby caused his injuries. It was held, in an action under the Employers' Liability Act for the negligence of the engineer, as being a per- son in the charge or control of an engine, car, or train upon a railroad, that, although the plaintiff was guilty of negligence, the plaintiff was entitled to recover, because the engineer, with knowledge of the plaintiff's perilous position and negligence, failed to use ordinary care to avoid the injury. 1 In Louisville &c. Ry. v. Markee, 103 Ala. 000, 15 So. Rep. 511, a section foreman riding on a hand-car was killed by a collision with a train moving in the same direction at its usual rate of speed. The hand- car had just emerged from a cut in the rocks where the locomotive engineer could not see the hand-car until within one hundred and fifty yards of it, on account of a curve in the track. As soon as the engineer saw the hand-car he put on the brakes and reversed the engine, and he testified that in his opinion this was the most effective way to stop a train. The conductor, however, testified that in his opinion the best way was to reverse the engine first and then apply the brakes. In an 1 See, also, Louisville &c. Ry. v. Trammell, 93 Ala. 350 ; Alabama &c. Ry. v. Richie, 99 Ala. 346 ; Louisville &c. Ry. v. Watson, 90 Ala. 68 ; Louisville &c. Ry. v. Hurt, 101 Ala. 34 ; 13 So. Rep. 130. CONTRIBUTORY NEGLIGENCE. 169 action under the Employers' Liability Act, where the deceased had been guilty of contributory negligence in failing to flag the curve in the track, it was held that whether the conductor or the engineer was correct in his view, if the engineer adopted the means which he believed best adapted for stopping the train, and in good faith did all he could to prevent the collision, he was not guilty of such wanton or reckless negligence as to purge the contributory negligence of the deceased, and that the defendant was not liable. 1 The fact that a railroad company maintains an over- head bridge which is only five feet and two inches above the tops of freight-cars, although it could be raised at small expense, does not constitute wilful or wanton negligence on its part which will render it liable under the statute to a brakeman who has been injured while guilty of contributory negligence. 2 116. Employee's Right to rely upon Warning from Person. The surrounding facts and circumstances of the work may be such as to excuse an employee from using his eyes or ears to protect himself from danger, and to give him the right to rely upon a warning from some one else. 3 What are such facts and circumstances is some- times a difficult question to decide. A few illustrations on both sides of the line will be given. 1 See, also, Chambliss v. Mary Lee Coal Co. 103 Ala. 000 ; 16 So. Rep. 572. 2 Louisville &c. Ry. v. Banks, 103 Ala. 000 ; 16 So. Rep. 547. 8 Schultz v. Chicago &c. Ry., 44 Wis. 638 ; Ditberner v. Chicago &c. Ry., 47 Wis. 138 ; Maguire v. Fitchburg Ry., 146 Mass. 379. 170 EMPLOYERS' LIABILITY ACTS, In Davis v. New York &c. Ry., 159 Mass. 532, the plaintiff, while repairing the defendant's track, was run down by a train. His work required him to face to the north and to bend over the track, so that he could not see trains approaching from the south. It was the duty of his section boss or foreman of the gang to warn him of the approach of such trains. At the trial the evidence was conflicting as to .whether this warning was given. It was held that the plaintiff was entitled to rely upon this warning, and that his doing so did not constitute contributory negligence. The court, by Holmes, J., says : " The defendant had put the plaintiff in a position in which the more closely he attended to his duty the less he was able to be on the watch, and had put a foreman there for the express purpose of warning him. Under such circumstances the jury well might say that the plaintiff was justified in relying on the foreman's doing what the defendant admitted that he was bound to do, and said that he did. A man alongside another in this way can make sure of his warning being understood. The case is not like one where the only warning relied on must come from the train." Page 535. As the failure to give the warn- ing was the negligence of the defendant's superintend- ent, it was further held that the plaintiff was entitled to recover under the Massachusetts statute. 1 In Lynch v. Boston & Albany Ry., 159 Mass. 536, the plaintiff's intestate was killed by a shunted car while engaged in cleaning under a switch-bar in the defend- ant's yard. The work could only be done in a stooping 1 See, also, Lynch v. Allyn, 160 Mass. 248 ; Burgess v. Davis Sulphur Ore Co., 165 Mass. 71; 42 N. E. Rep. 501. CONTRIBUTORY NEGLIGENCE. 171 position, which naturally withdrew his attention from approaching trains or cars. The plaintiff contended that the deceased was excused from using his eyes for his own protection, upon the ground that the defendant had given him the right to rely upon being warned of the approach of a car or train. The strongest evidence of this was the statement of the section foreman that he generally looked out for the men the best he could, and warned them, but that the men had to look out for themselves when they were in different parts of the yard, and that at the time of the accident the men were separated. The presiding judge ordered a verdict for the defendant, and the full court held that this ruling was correct, for the reason that the deceased in failing to use his eyes was guilty of negligence, and that he had no right to rely upon being warned either by the section foreman or by a person on the approaching car.. The case was stated by the court on page 538 to be " not so strong for the plaintiff as if the deceased had been run down by an engine, which ordinarily would have a man on the lookout." l Maguire v. Fitchburg Railroad, 146 Mass. 379, was distinguished on the ground that in that case " there was an implied assur- ance that the use of the track was suspended." Page 537, by Holmes, J. 117. Same. In Donahoe v. Old Colony Ry., 153 Mass. 356, the plaintiff was jammed between an engine and a car, 1 Citing Shea v. Boston & Maine Ry., 154 Mass. 31 ; Aerkfetz v. Hum- phreys, 145 U. S. 418, 420. See, also, Railway Co. v. Murphy, 50 Ohio St. 135. 172 EMPLOYEES' LIABILITY ACTS. while he was attempting to uncouple the car, by reason of a broken draw-bar. The plaintiff was a brakeman, and during a temporary absence from his post the con- ductor chained to the engine a car with a broken draw- bar, and omitted to inform the plaintiff of the fact. He was ignorant of this danger, and in the course of his duty he stepped into the freight-car chained to the engine, and, without looking down to see, with the aid of his lantern, whether the draw-bar was all right, he called to the engineer to back the engine so that he could pull out the coupling-pin easily. The engine was backed quickly, and by reason of the broken draw-bar the tender came in close contact with the forward end of the car upon which the plaintiff stood, and crushed his leg. It was held that the jury was justified in finding that the proximate cause of the injury was the conductor's omission to inform the plaintiff of the broken draw-bar, and that the plaintiff was in the exer- cise of due care and diligence. The conductor having been in charge of the train, it was further held that the common employer was liable in damages under the statute for the injury. In Steffe v. Old Colony Ry., 156 Mass. 262, a car- inspector, while inspecting a moving train, was struck by another moving train. The evidence tended to show that it was customary to inspect moving trains ; that the other train came upon the plaintiff unexpectedly and rapidly, without any warning from the brakeman on the approaching train, who was stationed there to give warning or to stop the train. It was held that the jury was warranted in finding that the plaintiff was in the exercise of due care and diligence, under the terms of CONTRIBUTORY NEGLIGENCE. 173 the statute. The circumstances were such as to entitle the plaintiff to rely upon a warning from the brakeman who was in charge or control of the train. 1 The fail- ure to give this warning was the negligence of a person for whose acts the railroad company was liable. Hence the plaintiff was entitled to recover damages. It is not essential, however, that the warning should be given by a superintendent, or other person in charge or control of the injured employee. If it is duly given by a co-employee, it is sufficient to exonerate the com- mon employer in an action under the act. 2 118. Warning from Object. The warning upon which an employee is entitled to rely may come from a part of the defendant's ways, works, or machinery, as well as from a person. Thus, in Maher v. Boston & Albany Ry., 158 Mass. 36, a freight brakeman was instantly killed by reason of his head coming in contact with a bridge, the approach to which was guarded by a tell-tale which was out of order. His duty required him to ride on the top of the rear end of the train, where there was a tah 1 re- frigerator car, and to watch the rear end of the train with his face to the rear. He knew that there were low bridges under which the car must pass. In an action under the Employers' Liability Act, the defend- ant contended that the deceased was not in the exercise of due care in failing to keep a lookout for the bridge. But the court held that the circumstances justified him in relying upon the tell-tale for warning of his approach 1 Davis v. New York &c. Ry., 159 Mass. 532. 2 Alabama Coal Co. v. Pitts, 98 Ala. 285. 174 EMPLOYERS' LIABILITY ACTS. to the bridge, and that the jury was warranted in find- ing: that he was in the exercise of due care and dili- o gence. As the tell-tale was out of order and did not give the warning, a verdict for the plaintiff was sus- tained. Where, however, the brakeman's duty does not re- quire him to sit in a dangerous place, and he assumes such position merely for his own comfort or conven- ience, and he is familiar with the route and the loca- tion of the bridges, the fact of a defect in the bridge, and the absence of " whip - straps " or other warning signal near the bridge which knocks him off the train, will not render the employer liable under the Alabama act, because the brakeman is guilty of contributory negligence. 1 119. Inference of Due Care. In a few cases where an employee has been killed and his death was not witnessed by any one, the Mas- sachusetts court has held that an inference of his due care is justified if all the attending circumstances are in evidence and they fail to show any fault on his part. The mere absence of evidence of his fault will author- ize a finding of due care. 2 This rule is an important qualification of the Massachusetts rule that the burden is upon the plaintiff to show due care. If direct and positive evidence of what the injured person was doing at the time of the injury were required, a plaintiff could never recover when the injury resulted in immediate death and no one witnessed the accident. 1 Schlaff v. Louisville &c. Ry., 100 Ala. 377. 2 Caron v. Boston & Albany Ry., 164 Mass. 523 ; Thyng v. Fitchburg Ry., 156 Mass. 13 ; Maguire v. Fitchburg Ry., 146 Mass. 379. CONTRIBUTORY NEGLIGENCE. 175 In Griffin v. Overman Wheel Co., 61 Fed. Rep. 568, a night-watchman was found dead on the ground below a narrow unrailed bridge running between two buildings owned by the defendant. It was customary for him to pass over this bridge in making his rounds. The night of his death was cold, dark, and frosty, and the bridge was in a slippery condition. There was no direct and positive evidence as to what he was doing at the time he met his death, or as to how it was caused. In an action under the Massachusetts act of 1887, the presid- ing judge ruled, at the defendant's request, that there was no evidence that the deceased was in the exercise of due care, and ordered a verdict for the defendant. The Circuit Court of Appeals, however, set aside the verdict and ordered a new trial, on the ground that the facts proved would justify the jury in the inference that he was in the exercise of due care. 120. Selecting Dangerous Mode of performing Work when Safe Way exists. Contributory negligence may consist in choosing a dangerous mode of doing work when there is a safer way of performing the same duty. Thus, if the uncoupling of cars in motion may be effected in safety while standing on the platform of one of them, an employee who goes in between them and attempts to uncouple them while in motion is guilty of contributory negligence, and cannot recover under the Alabama Employers' Liability Act for a defect in the condition of the draw-head attached to one of the cars. 1 In Tennessee Coal Co. v. Herndon, 100 Ala. 451, 458, 1 Memphis &c. Ry. v. Graham, 94 Ala. 545. 176 EMPLOYERS' LIABILITY ACTS. Mr. Justice Coleman for the court says, in an action under the statute : " If a party selects a dangerous way to perform a duty when there is a safe way, knowing the way selected to be dangerous, or if the danger is ' apparent ' or ' obvious,' then he assumes the risk, and is guilty of contributory negligence." But in the same case it was held that the mere fact that an employee was injured because of the way selected by him, when if he had selected the other way he would have escaped injury, does not of itself constitute contributory negli- gence, and that the result of his action is not the true test of the question. In this case the plaintiff's intes- tate, while assisting the regular " dumper " in turning the cinder out of a large pot, was jerked into the pot by its sudden tilting over, and was killed by contact with the mass of molten cinder in the pot. At the time of the accident the deceased was standing on the trucks which supported the cinder-pot. The evidence was conflicting as to whether the ground or the trucks were the safer place to stand for this purpose. It was held that a verdict for the plaintiff was proper, there having been certain defects in the safety chains and other apparatus connected with the pot. In Louisville &c. Ry. v. Orr, 91 Ala. 548, 554, Mr. Justice Coleman, in delivering the opinion of the court, says: "If there was evidence to satisfy the jury that plaintiff's intestate selected a dangerous way to pass from one car to another, knowing that the way selected was dangerous, when there was a safe way apparent to him, he was guilty of such contributory negligence as to constitute a full defence to the action." 1 1 Citing Mobile &c. Ry. v. Holborn, 84 Ala. 137. CONTRIBUTORY NEGLIGENCE. 177 A workman who feeds a circular saw by means of his hand, knowing a safer practicable method, is not in the exercise of due care, and cannot recover against his employer at common law for an injury to his hand caused by a defect in the saw. 1 An employee who, at the request of a fellow-workman, mounts a ladder to repair a dangerous part of the machinery while it is in motion, instead of waiting to have it stopped, is guilty of contributory negligence, and cannot recover for an injury caused by a defect in the ladder. 2 121. Same. In Richmond &c. Ry. v.- Bivins (Ala.), 15 So. Rep. 515, a freight brakeman was pulled off the caboose, as he was boarding it after setting a switch, by his clothes catching in the switch. At the station where the acci- dent happened the conductor gave the plaintiff this order : " Set up your switch ; catch your caboose ; hold the cars ; cut them loose ; run them on the side track, and get away quick." In obedience to these instruc- tions, the plaintiff set the switch, and, after the cars had passed from the main track on to the side track, he stood near the switch waiting for the train to back down to him, and when the rear platform of the caboose reached him, he grasped the rails of the rear platform with both hands, put his left foot on the lowest step of the plat- form, and while in the act of drawing up his right foot the leg of his trousers was caught in the machinery of the switch, his right foot drawn back, his left foot slipped from the step, and both legs were drawn under 1 Wilson v. Steel Edge Stamping Co., 163 Mass. 315. 2 Cahill v. Hilton, 106 N. Y. 512. 178 EMPLOYERS' LIABILITY ACTS. the cars and cut off just below the knees. There was evidence tending to show that it was customary for brakemen on the defendant railroad to board trains in motion after setting switches, though it was not disputed that the brakeman could stop the train, if he chose to do so, and make it wait while he boarded it. It was held that, in boarding the train while in motion instead of making it stop and then boarding it, he was guilty of contributory negligence as matter of law, and that a verdict should have been ordered for the defendant. In the opinion by Mr. Justice Haralson it is said on page 517 : " It is a familiar principle, which common sense as well as the rules of law ought to teach any one, that where one in the employ of a railroad know- ingly selects a dangerous way when a safer one is apparent to him, and is thereby injured, he is guilty of contributory negligence." The learned justice also states that, " with the loss of only a moment or two, he might have brought it [the train] to a standstill, to enable him to board it." 1 This case was followed with approval in Davis v. Western Ry., 104 Ala. 000, 18 So. Rep. 173. 1 This case seems to carry the doctrine of contributory negligence to an unwarrantable extent. The plaintiff was acting under orders to be quick, and he would have violated these orders if he had brought the train to a standstill iu order to enable him to board it in safety. The loss of even a moment or two, at each place where a switch is set for a freight train, would greatly increase the running time, and a brakeman who persisted in such conduct would not retain his position very long. The case should have been submitted to the jury. Hannah v. Connecticut River Ry., 154 Mass. 529 ; Lawless v. Connecticut River Ry., 136 Mass. 1 ; Bowers v. Connecticut River Ry., 162 Mass. 312. CONTRIBUTORY NEGLIGENCE. 179 122. Other Illustrations of Due Care and Con- tributory Negligence. Due care and diligence do not require a brakeman to abandon his post and jump from the car at the first instant that he discovers there is trouble with the brake, although the car is on a descending grade with- out a locomotive. 1 In Sullivan v. Old Colony Ry., 153 Mass. 118, a switchman was killed by a locomotive engine while in the act of recrossing the tracks after throwing a switch. The injury occurred in the daytime, at a time when a locomotive usually passed. He turned his back to the engine, and did not look around towards the engine until just before it struck him. In an action by his widow under the Employers' Liability Act, it was held that he was not in the exercise of due care and diligence O at the time of the injury, and that the plaintiff could not recover. In Lothrop v. Fitchburg Railroad, 150 Mass. 423, a freight brakeman was killed by having his head crushed between the ends of two projecting timbers on two flat cars, while in the act of coupling them. He had been given general orders by the conductor to do the coup- ling, and had made several couplings on the north side of the track before the injury occurred. The timbers which killed him projected over the north side of the cars, and the coupling could have been safely done either from the south side of the track or from beneath the cars. It was about noon on a clear day, and there was nothing to distract his attention. In this action 1 Spaulding v. Flynt Granite Co., 159 Mass. 587. 180 EMPLOYEES' LIABILITY ACTS. against the railroad company under the Employers' Lia- bility Act, it was held that the danger was an obvious one, and that the deceased was not in the exercise of due care and diligence within the meaning of the act, and that the action could not be maintained. In delivering the opinion of the court, Mr. Justice Field says : " The general rule of law is, that when the danger is obvious, and is of such a nature that it can be appreciated and understood by the servant as well as by the master, or by any one else, and when the servant has as good an opportunity as the master or as any one else of seeing what the danger is, and is permitted to do his work in his own way, and can avoid the danger by the exercise of reasonable care, the servant cannot recover against the master for injuries received in consequence of the condition of things which constituted the danger. If the servant is injured, it is from his own want of care." Pages 424, 425. Upon like facts it has been held that the employer was not liable at common law. 1 In Browne v. New York &c. Ry., 158 Mass. 247, a brakeman was killed by a freight-car falling over upon him. He was sent to uncouple the caboose car from the engine, in order that it might make a flying switch. The engineer slackened the speed of the train to let the brakeman pull out the coupling-pin, and, although the deceased did not succeed in pulling the pin out, he gave the signal for the engineer to go faster. The engineer increased the speed of the train, and as soon as the engine passed the switch the switchman threw the switch, the coupling held, the caboose car was pulled off the track, 1 Boyle v. New York &c. Ry., 151 Mass. 102. CONTRIBUTORY NEGLIGENCE. 181 and fell over and killed the brakeman. The pin and the hole in the stiff shackle were in good condition. In an action by the brakeman's dependent next of kin under the statute, it was held that the brakeman was guilty of contributory negligence in giving the signal to start faster before he had pulled out the pin, and that the plaintiff could not recover. It is not contributory negligence for a switchman to stand upon the foot-board of an engine-tender in un- coupling a car from the tender, although a rule of the company forbids switchmen to go between the cars in coupling or uncoupling ; and such act will not defeat a recovery under the Employers' Liability Act of Ala- bama. 1 For other illustrations as to what conduct by an injured employee is or is not due care and diligence within the meaning of the Employers' Liability Act, see the cases cited in the note. 2 1 Richmond &c. Ry. v. Jones, 92 Ala. 218. 2 Graham v. Boston & Albany Ry., 156 Mass. 4 ; McLean v. Chemical Paper Co., 165 Mass. 5 ; 42 N. E. Rep. 330 ; Burgess v. Davis Sulphur Ore Co., 165 Mass. 71 ; 42 N. E. Rep. 501 ; Mobile &c. Ry. v. Holbora, 84 Ala. 133 ; Louisville &c. Ry. v. Woods, 104 Ala. 000 ; 17 So. Rep. 41. CHAPTER IX. NOTICE. Section 123. Statutes relating to notice. 124. Prior notice necessary. 125. Written notice required. 126. Notice in case of instantaneous death. 127. Notice must show that it was intended as the basis of a claim for damages. Section 128. Notice of the "time" of the injury. 129. Notice of the " place " of the injury. 130. Notice of the "cause" of the injury. 131. No intention to mislead, etc. 132. Notice signed by plaintiff's at- torney. 123. Statutes relating to Notice. THE Massachusetts statute relating to notice, together with the amendment of 1888, ch. 155 (the amendment being enclosed within brackets), reads as follows : " No action for the recovery of compensation for injury or death under this act shall be maintained unless notice of the time, place, and cause of the injury is given to the employer within thirty days, and the action is commenced within one year from the occur- rence of the accident causing the injury or death. [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 physical 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 such incapacity is NOTICE. 183 removed ; and in case of his death without having given the notice, and without having been for ten days at any time after his injury of sufficient capacity to give the notice, his executor or administrator may give such notice within thirty days after his appoint- ment.] But no notice given under the provisions of this section shall be deemed to be invalid or insuf- ficient solely by reason of any inaccuracy in stating the time, place, or cause -of the 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." l The provisions of the Colorado act are very like those of Massachusetts upon this subject, except that sixty days instead of thirty days are allowed. 2 This act, and also the English act, are contained in the Appendix. The Alabama act does not require notice to be given, nor does the Indiana statute. 124. Prior Notice Necessary. Where notice is required, no action can be main- tained under the Employers' Liability Acts unless notice of the injury has been given before the action is brought. The mere bringing of the action is not suf- ficient notice. 3 " The requirement of notice is held to make a condition precedent to the right to bring an action, not on a nice interpretation of the particular words used, but upon a general view of what the legis- 1 Mass. St. 1887, ch. 270, 3. See, also, Mass. St. 1894, ch. 389. 2 Colo. Laws of 1893, ch. 77, 2. Foley v. Pettee Machine Co., 149 Mass. 294, 296 ; Moyle v. Jenkins, 8 Q. B. D. 116, 118 ; Keen v. Millwall Dock Co., 8 Q. B. D. 482, 484. 184 EMPLOYERS' LIABILITY ACTS. lature would be likely to intend." The making out of the writ is deemed the bringing of the action within the meaning of this rule. If the writ be made out in the morning and the notice be served in the afternoon of the same day, the action cannot be maintained. 2 125. Written Notice required. The Massachusetts act of 1887 did not expressly require the notice to be in writing ; but by the amend- ment passed in 1888 (St. 1888, ch. 155, 1) written notice was rendered necessary to the maintenance of an action under the statute. In England, although the statute does not in terms require written notice, yet the provisions relating to giving the name and address of the person injured, and to serving the notice by post, etc., have been held to show that the notice must be in writing. 3 In Keen v. Millwall Dock Co., 8 Q. B. D. 482, the plaintiff made a verbal report of his injury to the defendant's inspector, who took down the details in writing and sent them to the superintendent. After- wards the plaintiff's solicitor wrote a letter to the defendant, stating that he was instructed to apply for compensation for the injury, " particulars of which have already been communicated to your superintendent." It was held by the Court of Appeal that the notice was not in writing, and that the action could not be maintained. 1 Veginan v. Morse, 160 Mass. 143, 146, per Holmes, J. 2 Veginan v. Morse, 160 Mass. 143. 8 Moyle v. Jenkins, 8 Q. B. D. 116 ; Keen v. Millwall Dock Co., 8 Q. B. D. 482. NOTICE. 185 126. Notice in Case of Instantaneous Death. When the employee is instantly killed, the notice required by the Massachusetts statute may be given either by some one in his behalf, as by his widow, within thirty days from the occurrence of the accident causing his death, 1 or by the executor or administrator within thirty days after his appointment. 2 Although it was intimated in Gustafsen y. Washburn & Moen Manuf. Co., 153 Mass. 468, that notice by an executor or administrator would not support an action by the next of kin, it was subsequently decided that such notice was sufficient for that purpose, on the ground, as stated by Mr. Justice AUen for the court, that " the statute was designed to extend the liability of employers for personal injuries suffered by employees in their service, and the requirements as to notice should receive a liberal construction." 3 127. Notice must show that it was intended as the Basis of a Claim for Damages. Where the notice given failed to show that it was intended as the basis of a claim against the defendant, or that it was given in behalf of the plaintiff, it was held that an action under the Employers' Liability Act could not be maintained. 4 1 Gustafsen v. Washburn & Moen Manuf. Co., 153 Mass. 468. 2 Daly v. New Jersey Steel Co., 155 Mass. 1. * Daly v. New Jersey Steel Co., 155 Mass. 1, 4. * Driscoll v. Fall River, 163 Mass. 105. See, also, Kenady v. Law- rence, 128 Mass. 318. But see Taylor tr. Woburn, 130 Mass. 494= ; Savory v. Haverhill, 132 Masa. 524, 186 EMPLOYERS' LIABILITY ACTS. 128. Notice of the " Time" of the Injury. Under the Massachusetts act it is not necessary that the notice should state the hour when the injury occurred. A statement of the day is sufficient. 1 A like rule prevails under the statute relating to defects in highways. 2 In Taylor v. Woburn, ubi supra, notice that the injury was received on " Christmas morning " was held to sufficiently state the time of the accident. 129. Notice of the " Place " of the Injury. With respect to the place of the injury, under the Massachusetts Employers' Liability Act, the decisions under the statute giving a right of action for personal injuries caused by defects in the highway are in point. As to what description of the " place " of an acci- dent for an injury caused by a defect in a highway is sufficient under the statute of Massachusetts (Pub. Sts. ch. 52, 18), see below. 3 As to what description of the place of a highway accident is not sufficient, see cases cited in the foot- note. 4 1 Donahoe v. Old Colony Ry., 153 Mass. 356 ; Drommie v. Hogan, 153 Mass. 29. 2 Taylor v. "Woburn, 130 Mass. 494 ; Lyman v. Hampshire, 138 Mass. 74 ; Cronin v. Boston, 135 Mass. 110 ; Aston v. Newton, 134 Mass. 507. 8 Hughes v. Lawrence, 160 Mass. 474 ; Connors v. Lowell, 158 Mass. 336 ; Richardson v. Boston, 156 Mass. 145 ; Pendergast v. Clinton, 147 Mass. 402 ; Lyman v. Hampshire, 138 Mass. 74 ; Sargent v. Lynn, 138 Mass. 599 ; Aston v. Newton, 134 Mass. 507 ; Welch v. Gardner, 133 Mass. 529. 4 Gardner v. Weymouth, 155 Mass. 595 ; Shallow v. Salem, 136 Mass. 136 ; Cronin v. Boston, 135 Mass. 110 ; Post v. Foxborough, 131 Mass. 202 ; Miles v. Lynn, 130 Mass. 398 ; Donnelly v. Fall River, 130 Mass. 115. NOTICE. 187 130. Notice of the " Cause " of the Injury. In Beauregard v. Webb Granite Co., 160 Mass. 201, an employee was killed by a stone falling upon him through negligence in raising it without warning him. The notice to the employer stated that the deceased was killed " by a stone being precipitated upon him from your derrick as a result of your negligence, and of the negligence of some person for whose negligence you are liable." Held, that the cause of the injury was either stated with sufficient accuracy, or that the jury might have found it sufficient, on the ground that there was no intention to mislead, and that in fact the defendant was not misled by it. In Donahoe v. Old Colony Ry.,. 153 Mass. 356, in which a freight brakeman was injured by reason of the conductor's negligence in chaining a car with a broken draw-bar to the engine, and in failing to notify the plaintiff of the fact, it was held that the following notice stated the time, place, and cause of the injury with sufficient accuracy : " The Old Colony Railroad Company is hereby noti- fied that on the fifteenth day of October, 1888, when within one hundred yards northerly from the railroad station at Readville, Mass., on that part of the said Old Colony Railroad Company formerly known as the Bos- ton and Providence Railroad Company, I was injured by my right leg being caught between a dump-car and tender of an engine, I at the time standing on the dump-car, which was the first car of a train of cars to which said tender of said engine was attached. Said injury was caused by reason of a broken draw-bar on 188 EMPLOYERS' LIABILITY ACTS. the dump-car, which allowed the dolly varden on the tender of the engine to run up against the end of the dump-car, and which caught and injured my leg. 1 This notice is given under the provisions of chapter 270 of the Acts and Resolves of Massachusetts of the year 1887, and of chapter 155 of said acts of the year 1888." In Lynch v. Allyn, 160 Mass. 248, the notice stated the cause of the injury to be " the falling of a bank of earth." The proof was to the effect that the defend- ant's superintendent failed to station any one on the bank to warn the plaintiff of the danger of the bank's falling, and also failed to shore up the bank. It was objected that the notice was defective because it did not refer to the superintendent or to his conduct ; but the court held that the cause of the injury was properly stated, and added that " it was not necessary for the plaintiff to state the cause of that cause." 2 In Brick v. Bosworth, 162 Mass. 334, plaintiff's hus- band was instantly killed, and the notice stated the cause of the injury in these words : " The cause of the death of my said husband was the falling of a derrick upon him on account of the same being improperly or insecurely fastened." It was held that the notice was sufficiently full and specific to entitle the plaintiff to recover, either under the second clause, relating to the negligence of a superintendent, or under the first clause, relating to a defect in the condition of the ways, works, or machinery, etc. 1 The facts stated in the report of the case show that the chief cause of the injury was the negligence of the conductor in omitting to inform the plaintiff of the broken draw-bar. 2 Per Lathrop, J., for the court, p. 255. NOTICE. 189 In actions for defects in the highway, the following cases contain illustrations of sufficient descriptions of the " cause " of the injury : Young v. Douglass, 157 Mass. 383 ; Richardson v. Boston, 156 Mass. 145 ; Pendergast v. Clinton, 147 Mass. 402 ; Canterbury v. Boston, 141 Mass. 215 ; Grogan v. Worcester, 140 Mass. 227 ; Davis v. Charlton, 140 Mass. 422 ; Dalton v. Salem, 136 Mass. 278 ; Aston v. Newton, 134 Mass. 507 ; McCabe v. Cambridge, 134 Mass. 484 ; Welch v. Gardner, 133 Mass. 529 ; Bailey v. Everett, 132 Mass. 441 ; Whitman v. Groveland, 131 Mass. 553 ; Taylor v. Woburn, 130 Mass. 494. For insufficient statements of the " cause " of a high- way accident, see Roberts v. Douglass, 140 Mass. 129; Lyon v. Cambridge, 136 Mass. 419 j Cronin v. Boston, 135 Mass. 110; Shea v. Lowell, 132 Mass. 187; Dal- ton v. Salem, 131 Mass. 551 ; Madden v. Springfield, 131 Mass. 441 ; Noonan v. Lawrence, 130 Mass. 161 ; Miles v. Lynn, 130 Mass. 398. 131. -ZVb Intention to mislead, etc. In Drommie v. Hogan, 153 Mass. 29, the notice stated the cause of the plaintiff's injury to be " by rea- son of a defective or insufficient staging, and the fall of the staging." The plaintiffs proof showed that the cause of the injury was a defective condition of a ledger- board, which broke and caused the staging to fall. The defendant contended that he was misled by the notice, and testified that he did not know what defect was referred to in the notice, or that the ledger-board was broken. The evidence showed further, however, that shortly after the injury the defendant came to 190 EMPLOYERS' LIABILITY ACTS. the place where it happened and assisted in taking away the injured man ; and that the staging and the broken ledger-board then lay in a heap upon the ground. The court held that even if the notice was defective in stating the cause of the injury, which the court did not decide, still the evidence warranted the jury in finding that the plaintiff had no intention to mislead the defendant, and that the latter was not in fact misled thereby. In actions against cities or towns for defects in the highways, the statute contains like provisions respecting an absence of intention to mislead. As to what notices are or are not sufficient under this clause, see Fuller v. Hyde Park, 162 Mass. 51 ; Norwood v. Somerville, 159 Mass. 105 ; Veno v. Waltham, 158 Mass. 279 ; Gard- ner v. Weymouth, 155 Mass. 595 ; Bowes v. Boston, 155 Mass. 344 ; Fortin . Easthampton, 142 Mass. 486 ; Liffin v. Beverly, 145 Mass. 549; Canterbury v. Bos- ton, 141 Mass. 215. 132. Notice signed by Plaintiff"' 's Attorney. Under the Massachusetts statute of 1888, ch. 155, which provides that the notice " shall be in writing, signed by the person injured, or by some one in his behalf," a notice signed by his attorney thus, " A B, attorney for C D," is a sufficient signing on behalf of CD. 1 1 Dolan v. Alley, 153 Mass. 380. See, also, Spellman v. Chicopee, 131 Mass. 443. CHAPTER X. LIMITATION OF ACTIONS. Section 133. Statutes, etc. 134. Amendment setting forth new cause of action, - filed after statute of limitations has run. 135. Same. Injury received in an- other State. 136. Do exceptions or saving clauses in the general statute of lim- itations apply to actions un- Section der the Employers' Liability Acts? 137. Conflict of laws. 138. Same. 139. Same. When Employers' Lia- bility Act does not limit time for action. 140. Same. When right exists at common law. 133. Statutes, etc. THE third section of the Massachusetts act provides that " No action for the recovery of compensation for injury or death under this act shall be maintained unless . . . the action is commenced within one year from the occurrence of the accident causing the injury or death." l The period in Colorado is two years ; and in England six months, or in case of death twelve months, from the time of death. 2 The Alabama Employers' Liability Act prescribes no time for the commencement of action. The matter is therefore controlled by the general statute of limita- 1 St. 1887, ch. 270, 3. 2 Colorado Laws of 1893, ch. 77, 2 ; 43 & 44 Yict. cap. 42, 4. 192 EMPLOYERS' LIABILITY ACTS. tions. In O'Kief v. Memphis &c. Ry., 99 Ala. 524, a close question arose ; namely, whether an action under the Employers' Liability Act for the negligent killing of an employee was governed by section 2589 of the Code, prescribing two years for the negligent killing of a human being, or by section 2619, clause 6, providing that "actions for any injury to the person or rights of another, not arising from contract, and not herein specifically enumerated," shall be brought within one year. A majority of the court held, without assigning reasons, that the action was governed by the one-year period, and therefore barred in this case. It follows, a fortiori, that, where the employee's injury does not result in death, the action under the statute is barred in one year. 1 134. Amendment setting forth New Cause of Action, filed after Statute of Limitations has run. The time limited for bringing suit under the Em- ployers' Liability Act applies not only to the action itself, but also to an amendment to the declaration which sets forth a new and independent cause of action not embraced in the original declaration. If the statu- tory period has elapsed between the date of the injury and the date of filing the amendment, no recovery can be had upon the amended cause of action if it sets up a new cause of action. 2 This rule is well settled ; the difficulty arises in applying it in practice, and in deter- 1 See O'Shields v. Georgia Pacific Ry., 83 Ga. 621 ; Louisville &c. Ry. v. Woods, 104 Ala. 000 ; 17 So. Rep. 41. 2 Sicard v. Davis, 6 Peters, 124 ; Exposition Cotton Mills v. Western &c. Ry., 83 Ga. 441. LIMITATION OF ACTIONS. 193 mining whether a given amendment involves a new cause of action within the meaning; of the rule. If O the amendment does not set up a new cause of action, but is merely a more specific statement of the original cause of action, it is deemed to relate back to the com- mencement of the action. In Alabama the rule has been enforced with some strictness against plaintiffs. In Mohr v. Lemle, 69 Ala. 180, 183, Mr. Chief Justice Brickell says for the court : " The whole doctrine of relation rests in a fiction of law adopted to subserve and not to defeat right and justice. When the amendment introduces a new right or new matter, not within the Us pendens and the issue between the parties, if, at the time of its introduction, as to such new right or matter, the statute of limitations has operated a bar, the defendant may insist upon the benefit of the statute, and to him it is as available as if the amendment were a new and independent suit." In Alabama &c. Ry. v. Smith, 81 Ala. 229, the original declaration averred that the plaintiff, being a passenger on the defendant railroad, was forcibly ejected from his seat before he reached his destination. The amendment set up that he was induced to leave his seat and to alight at the wrong station by the porter calling out the name of his station. It was held that the amendment presented a new cause of action, and that the action upon it was barred by the statute of limitations, as it did not relate back to the time of commencing the action. Birmingham Furnace Co. v. Gross, 97 Ala. 220, was an action under the Alabama Employers' Liability Act for an injury resulting in the death of plaintiff's intes- 194 EMPLOYERS' LIABILITY ACTS. tate. The original complaint contained several counts, alleging, in different forms, that his death had been caused by the defendant's negligence. An amendment setting forth the same acts, with the additional charge that the intestate acted in conformity to the orders of a person to whose orders he was bound to conform, was allowed by the trial court. It was held that the amend- ment was within the Us pendens ; that it did not set up a new cause of action within the meaning of the rule ; and that it was not barred, but related back to the time of the commencement of the action. 1 In Texas & Pacific Ry. v. Cox, 145 U. S. 593, the declaration alleged that a freight conductor was injured while attempting to make a coupling of cars, because of the defective condition of the cross-ties and of the road- bed. The amendment, filed after the time allowed for bringing an action had elapsed, further averred that Cox, in coupling the cars, as it was his duty to do, was injured because the draw-head and coupling-pin were not suitable for the purpose for which they were to be used. It was held that the action was not barred, for the reason that, "as the transaction set forth in both counts was the same, and the negligence charged in both related to defective conditions in respect of coupling cars in safety, we are not disposed by technical con- struction to hold that the second count alleged another and different negligence from the first." Page 604. In Texas &c. Ry. v. Grimes, 8 Texas Civ. App. 000, 29 S. W. Rep. 1104, it was held that a declaration alleg- ing merely that the defendant had failed to employ the 1 See, also, Alabama Great Southern Ry. r. Chapman, 83 Ala. 453 ; Louisville &c. Ry. v. Woods, 104 Ala. 000 ; 17 So. Rep. 41. LIMITATION OF ACTIONS. 195 plaintiff may be amended, after the statute of limita- tions has fully run, by alleging also a breach of an agreement to pay a certain amount during plaintiff's disability. 135. Same. Injury received in Another State. In Union Pacific Ry. v. Wyler, 158 U. S. 285, the plaintiff, while in the employ of the defendant railroad, was injured in April, 1883, in the State of Kansas. The action was brought in a state court of Missouri in September, 1885, and was removed to the federal court for that district. The original declaration based the action upon the incompetency of a fellow-servant, one Kline, through whose negligence the injury occurred. In November, 1888, more than five years after the injury occurred, the plaintiff, with the defendant's con- sent, filed an amended petition, grounding his action upon the Kansas statute of 1874, which is quoted in the footnote. 1 The Missouri period of limitation for personal injuries was five years, and this was pleaded as a defence to the amended petition. The question was therefore directly presented whether or not the amend- ment set forth a new cause of action. The court held that it did set forth a new cause of action, and that the action was therefore barred by the Missouri statute of limitations. It was further decided that the limitation bar was not prevented from attaching by the fact that the amendment was filed by consent ; nor by the fact 1 " Every railroad company organized or doing business in this State shall be liable for all damages done to any employee of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employees to any person sustaining damage." Laws of Kansas, 1874, ch. 93, 1. 196 EMPLOYERS' LIABILITY ACTS. that the federal courts take judicial notice of the laws of all the States, though the conclusion was said to be " strengthened " (page 295) by the rule of law prevail- ing in Missouri, 1 as well as in most of the States, that a statute of a sister State is regarded as matter of fact, which must be pleaded and proved. As the original petition relied merely upon the general common-law lia- bility of a master for employing an incompetent servant, the amendment, setting up a special liability founded upon a statute of another State, was held to be a depar- ture in pleading, averring a new cause of action, upon which the statute of limitations ran from the time of the injury to the time of the filing of the amendment, and did not relate back to the commencement of the suit. In Bolton v. Georgia Pacific Ry., 83 Ga. 659, the same question was decided respecting the Alabama Employers' Liability Act. The plaintiff, while in the employ of the defendant railroad, was injured in Ala- bama and brought this action in Georgia. The original declaration was founded on the common-law liability of the employer for furnishing defective material. The amendment, offered after the Georgia statute of limita- tions had run, set up a liability conferred by the Ala- bama statute in terms. The facts alleged in both were substantially alike, and the plaintiff argued that simply to mention the Alabama statute in the amendment, and recite the same facts, would not set up a new cause of action. But the court held that the amendment offered did set up a new cause of action, and that the trial judge properly refused to allow the amendment, because the cause of action stated therein was barred. 1 Babcock v. Babcock, 46 Mo. 243. LIMITATION OP ACTIONS. 197 In Nashville &c. Ry. v. Foster, 10 Lea (Tenn.), 351, however, a decision o a contrary tendency was ren- dered. A brakeman in the defendant railroad's employ was killed in Alabama, but the original declaration counted on the Tennessee statute apparently ; at least it did not state or rely upon the Alabama statute. After the limitation period had elapsed an amendment was allowed setting forth the Alabama statute. It was held that the amendment did not introduce a new cause of action, and that it related back to the time the action was commenced, and prevented the bar from attaching. It is possible, however, to distinguish this case from the two preceding cases on the ground that here the liabil- ity described, both in the original declaration and in the amendment, was a special statutory liability, while in the two preceding cases the liability alleged in the original declaration was a general common-law liability, and that alleged in the amendment was a special statu- tory liability. If, however, the original declaration shows that the plaintiff relies upon the statute of the State of injury, and the foreign statute is merely pleaded in a defective manner, he may amend by setting out the statute prop- erly, and such amendment will relate back to the time of bringing suit. This is not the addition of a new cause of action, but is merely a more correct statement of the original cause, and is therefore not barred unless the original action was barred. 1 A like rule applies where the injury occurs in one State, whose statute giving the right of action also limits 1 South Carolina Ry. v. Nix, 68 Ga. 572 ; Bolton v. Georgia Pacific Ry., 83 Ga. 659, 660. 198 EMPLOYERS' LIABILITY ACTS. the time for action, and the suit is brought in another State, without declaring upon the statute of the State of injury. In such case the declaration cannot be amended by adding a count on the foreign statute after the time prescribed by that statute for bringing suit has elapsed. 1 136. Do Exceptions or Saving Clauses in the Gen- eral Statute of Limitations apply to Actions under the Employers' Liability Acts ? The Employers' Liability Acts contain no exceptions or saving clauses allowing further time to sue, while the general statutes of limitation contain various clauses of this nature. Thus, the general statute of Massachu- setts gives minors and some others further time to sue. The question therefore arises, do the usual saving clauses in the general statute of limitations apply to actions under the Employers' Liability A ct, when that act itself contains no saving clause? If, as in Alabama, the Employers' Liability Act does not prescribe a period of limitation, but leaves the action subject to the terms of the general statute of limitations, it would seem that the exceptions and saving clauses in that statute would also apply to actions under the Employers' Liability Act. 2 Where, however, the Employers' Liability Act sued upon prescribes a period of limitation without any saving clauses, it seems that the plaintiff is not entitled to the benefit of a saving clause in the general statute 1 Selma &c. Ry. v. Lacy, 49 Ga. 106. a Louisville &c. Ry. v. Sanders, 86 Ky. 259 ; Nelson v. Galveston &c. Ry., 78 Tex. 621. LIMITATION OF ACTIONS. 199 of limitations. Thus, it has been held in Mississippi that an infant suing under the Mississippi act for the negligent killing of its father by the defendant railroad company must bring the action within the year men- tioned in that statute, and is not entitled to the benefit of a saving clause in the general statute of -limitations allowing infants who are not represented by any guardian, etc., further time to sue. 1 It is well settled that the fact that a saving clause in a statute of limitations allows a new suit to be br6ught within a year after a nonsuit, or reversal, etc., of a former suit which was brought in time, does not allow such a second suit on a policy of insurance which limits the first suit to one year and makes no provision for a second suit. 2 137. Conflict of Laws. In statutes of this character, which create a new legal right unknown to the common law, time is regarded as of the essence of the right. The provision, that no action shall be maintained unless brought within a certain time after the injury, is a condition attached to the right of action, and it operates as a limitation of the liability as created, and not merely of the remedy. When the action is brought after the expiration of the time limited it is barred, not only in the State of injury, 1 Foster v. Tazoo &c. Ry. (Miss.), 18 So. Rep. 380. See, also, Taylor P. Cranberry Iron Co., 94 N. C. 525 ; Best v. Kinston, 106 N. C. 205 ; Cavanagh v. Ocean Steam Nav. Co., 19 N. Y. Civ. Pro. 391 ; Hill v. Su- pervisors, 119 N. Y. 344. 2 Riddlesbarger v. Hartford Ins. Co., 7 Wall. 386 ; Wilson v. JEtna Ins. Co., 27 Vt. 99 ; Hocking v. Howard Ins. Co., 130 Pa. St. 170 ; Arthur v. Homestead Ins. Co., 78 N. Y. 462. 200 EMPLOYERS' LIABILITY ACTS. but also in other States and in the federal courts. In the case of The Harrisburg, 119 U. S. 199, the plain- tiff's husband was killed in a collision on navigable waters within the jurisdiction of Massachusetts in 1877. The suit, which was in rem against the negligent steamer, The Harrisburg by name, was brought in 1882, in the District Court of the United States for Pennsylvania. Both the States of Massachusetts and Pennsylvania had statutes allowing actions for the negligent killing of a human being in certain cases, but they both required the action to be brought within one year after the injury in Massachusetts, and within one year after the death in Pennsylvania. It was held that the action could not be maintained, for the following reasons, stated by Mr. Chief Justice Waite on page 214 : " The statutes create a new legal liability, with the right to a suit for its enforcement, provided the suit is brought within twelve months, and not otherwise. The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all. No one will pretend that the suit in Pennsylvania, or the indictment in Massachusetts, could be maintained if brought or found after the O expiration of the year ; and it would seem to be clear that, if the admiralty adopts the statute as a rule of right to be administered within its own jurisdiction, it must take the right subject to the limitations which have been made a part of its existence. It matters not that no rights of innocent parties have attached during the delay. Time has been made of the essence of the right, and the right is lost if the time is disregarded. LIMITATION OF ACTIONS. 201 The liability and the remedy are created by the same statutes, and the limitations of the remedy are, there- fore, to be treated as limitations of the right." The fact that in The Harrisburg, supra, the action was barred under the statute of the State of process was immaterial. The mere fact that it was barred under the statute of the State of injury was sufficient to prevent a recovery. Thus, in Boyd v. Clark, 8 Fed. Rep. 849, a like action, brought in a federal court sitting in Michigan for an injury received in Ontario after the time limited by the Ontario statute, was held to be barred, although the time prescribed by the Michigan statute had not elapsed. In delivering the court's opinion, Mr. Justice Brown says, on page 852 : " The true rule I conceive to be this : that where a statute gives a right of action unknown to the common law, and, either in a proviso to the section conferring the right or in a separate section, limits the time within which an action shall be brought, such limitation is oper- ative in any jurisdiction where the plaintiff may sue." 138. Same. When the statute of the State of injury allows a longer period for the commencement of suit than is allowed by the State of process^, the same principle is applied in favor of the plaintiff. That is, the plaintiff may maintain his action if the time limited by the statute of the State of injury has not elapsed, even if i See, also, Selma &e. Ry. v. Lacy, 49 Ga. 106 ; O'Shields v. Georgia Pacific Ry., 83 Ga. 621, 626 ; Halsey v. McLean, 12 Allen (Mass.), 438, 443; Eastwood v. Kennedy, 44 Md. 563; Phillips v. Eyre, L. R. 6 Q. B. 1. 202 EMPLOYERS' LIABILITY ACTS. the time limited by the statute of the State of process has elapsed. Thus, in Therough v. Northern Pacific Ry., 64 Fed. Rep. 84, the plaintiff's intestate, a locomotive engineer for defendant, was killed in Montana on October 20, 1890. The Montana " Damage Act" (Comp. St. Mont. 1887, 981, 982) allowed three years for the bringing of such an action. The suit, however, was brought in Minnesota, whose " Damage Act " allowed only two years for such suits, on October 10, 1893, more than two years, but less than three years, after the injury. It was held, by the Circuit Court of Appeals for the Eighth Circuit, that the action was not barred, and that it was governed by the law of Montana, following the principle of Boyd v. Clark, 8 Fed. Rep. 849. In delivering the opinion, Mr. Justice Thayer says, on page 86 : " It must be accepted, therefore, as the established doctrine, that where a statute confers a new right, which by the terms of the act is enforcible by suit only within a given period, the period allowed for its enforcement is a constituent part of the liability intended to be created, and of the right intended to be conferred. The period prescribed for bringing suit in such cases is not like an ordinary statute of limitations, which merely affects the remedy. It follows, of course, that if the courts of another State refuse to permit the cause of action to be sued upon during a part of the period limited by the foreign law, to that extent they refuse to give effect to the foreign law, and by so doing impair the right intended to be created." LIMITATION OF ACTIONS. 203 139. Same. When Employers' Liability Act does not limit Time for Action. The Alabama Employers' Liability Act does not pre- scribe a definite time within which an action under it must be brought. This is regulated by the general statute of limitations, which fixes the limitation upon actions for " any injury to the person or rights of another not arising from contract" at one year. 1 In Georgia the period for such actions is two years. In an action brought in Georgia under the Alabama Employers' Liability Act for an injury received in Alabama, it appeared that the action was brought within two years, but not within one year, after the injury. It was held that the action was not barred, for the reason that, as the Alabama Employers' Liability Act failed to prescribe a limitation, the action was governed by the lex /on'. 2 In delivering the court's opinion, Mr. Chief Justice Bleckley says, on page 625 : " Where torts are committed in foreign countries, or beyond the territorial jurisdiction of the sovereignty in which the action is brought, the lex fori governs, no matter whether the right of action depends upon the common law or a local statute, unless the statute which creates or confers the rio;ht limits the duration of such O right to a prescribed time." It seems that the parties must have remained within the jurisdiction of the State of injury for its full period of limitation in order to bar the action in another State. 1 Alabama Code of 1886, 2619, cl. 6 ; O'Kief v. Memphis &c. Ry., 99 Ala. 524. a O'Shields v. Georgia Pacific Ry., 83 Ga. 621. 204: EMPLOYERS' LIABILITY ACTS. In Canadian Pacific Ry. v. Johnson, 61 Fed. Rep. 738, decided by the Circuit Court of Appeals in 1894, the plaintiff, while in the employ of the defendant, was injured in Canada on September 6, 1890. This action was brought on November 6, 1891, more than a year after the injury. By the Code of Canada the right of action for such an injury was " absolutely extinguished " in one year. At the time of the injury the plaintiff was a citizen of Vermont. From the time of his injury on September 6, 1890, he remained in Canada until April, 1891, less than a year, and then returned to Vermont. The railway company was a Canadian corporation. It was held that, even assuming the Canadian statute to be one which extinguished a right of action, the action was not barred, because the plaintiff had not remained in Canada for the full period of one year, and therefore the statute had not fully operated upon the right. 140. Same. When Right exists at Common Law. When the right of action does not depend upon statute but exists at common law, the rule generally recognized is that an action for personal injuries re- ceived without the State of process, as well as within that State, is governed by its limitation laws. 1 1 Johnston v. Canadian Pacific Ry., 50 Fed. Rep. 886 ; Munos v. Southern Pacific Ry., 51 Fed. Rep. 188 ; Nonce v. Richmond Co., 33 Fed. Rep. 429 ; Finnell v. Southern Kans. Ry., 33 Fed. Rep. 427. CHAPTER XI. THE MEASURE OF DAMAGES. Section 141. Injury not resulting in death. 142. Injury resulting in death pre- ceded by conscious suffering, or in death which is not in- stantaneous. 143. Injury resulting in instanta- neous death, or in death not preceded by conscious suffer- ing. 144. "Assessed with reference to the degree of culpability." 145. In Alabama, damages are lim- ited to the pecuniary loss or injury. 146. When deceased employee is a minor. 147. Age, health, strength, capacity to earn money, and family Section of deceased, as elements of damage. 148. When the deceased leaves a widow or dependent next of kin. 149. When the deceased leaves no widow or dependent next of kin. 150. Colorado rules. 151. Other cases. 152. Exemplary or punitive dam- 153. Excessive damages : how re- duced. 154. Division of damages when employee's negligence has contributed to his injury. 155. Remote or conjectural dam- ages. 141. Injury not resulting in Death. THE Massachusetts statute limits the amount of damages recoverable by an employee when his injury does not result in death to a sum not exceeding four thousand dollars. 1 It does not prescribe any criterion for estimating the amount, but leaves the question to be settled upon general principles of law. By virtue of the various Married Women's Acts, it has recently 1 Mass. St. 1887, ch. 270, 3. 206 EMPLOYERS' LIABILITY ACTS. been decided that the impairment of a married woman's capacity to labor caused by a personal injury is an element of damage in her favor, and not in her hus- band's favor, and may be considered by the jury in an action by her against the negligent person. 1 The Col- orado statute declares that the compensation " shall not exceed the sum of five thousand dollars." 2 Where the employer has contributed to an insurance fund for the benefit of employees, the Massachusetts act further provides that he " may prove, in mitigation of the damages recoverable by an employee under this act, such proportion of the pecuniary benefit which has been received by such employee from any such fund or society, on account of such contribution of said employer, as the contribution of such employer to such fund or society bears to the whole contribution thereto." 3 The English statute provides that " the amount of compensation recoverable under this act shall not exceed such sum as may be found to be equivalent to the esti- mated earnings, during the three years preceding the injury, of a person in the same grade employed during those years in the like employment and in the district in which the workman is employed at the time of the injury." By section 5 of this act the amount of any penalty paid to the injured employee under any other statute is to be deducted from the compensation recov- ered under the Employers' Liability Act. * Harmon v. Old Colony Ry., 165 Mass. 100 ; 42 N. E. Rep. 505. 2 Colo. Laws of 1893, ch, 77, 2. 8 Mass. St. 1887, ch. 270, 6. * 43 & 44 Viet. cap. 42, 3. THE MEASURE OF DAMAGES. 207 The Alabama statute does not prescribe a limit to the amount of damages recoverable in an action under the statute. In Mobile &c. Ry. v. George, 94 Ala. 199, a brakeman recovered a verdict of $19,547 for the loss of both feet. In the same case, the court, by Mr. Justice Clopton, says on page 222 : " Where the injury is permanent, the plaintiff, in actions of this character, may recover compensation for the disabling effects of the injury, past and prospective. In estimating the damages, the loss of time, and the incapacity to do as profitable labor as before the injury, as well as the mental and physical suffering caused by it, are perti- nent and legitimate factors." * 142. Injury resulting in Death preceded by Con- scious Suffering, or in Death which is not Instan- taneous. In this case the Massachusetts act, as amended by the statute of 1892, ch. 260, 1, provides that " The total damages awarded hereunder, both for said death and said injury, shall not exceed five thou- sand dollars, and shall be apportioned by the jury between the legal representatives and the persons, if any, entitled under the succeeding section of this act to bring an action for instantaneous death. If there are no such persons, then no damages for such death shall be recovered ; and the damages, so far as the same are awarded for said death, shall be assessed with ref- erence to the degree of culpability of the employer herein, or the person for whose negligence he is made liable." 1 Citing South Alabama Ry. v. McLendon, 63 Ala. 266 ; Alabama &c. ,Ry. v. Yarbrough, 83 Ala. 238, 241. 208 EMPLOYERS' LIABILITY ACTS. Under the original Massachusetts act of 1887, the employer was liable in damages for the conscious suffer- ing of the deceased employee, but was not liable in addition thereto for his death as a substantive cause of action. 1 The amendment of 1892, therefore, intro- duced a new element of damage. 143. Injury resulting in Instantaneous Death, or in Death not preceded by Conscious Suffering. The Massachusetts statute of 1892, ch. 260, 2, provides that " In case of death which follows instantaneously, or without conscious suffering, compensation in lieu thereof [of damages] may be recovered in not less than five hundred and not more than five thousand dollars, to be assessed with reference to the degree of culpability of the employer herein, or the person for whose negligence he is made liable." Under a statute providing that injuries to the person shall survive to the personal representative, the plaintiff can recover only such damages as he proves were sus- tained by the deceased. A conjecture that he suffered mental or other pain is not sufficient. Thus, in Ken- nedy v. Standard Sugar Refinery, 125 Mass. 90, the deceased, while engaged in wheeling coal for the defend- ant, fell from a platform twenty feet to the ground. He immediately became unconscious, and remained so until his death, thirty-six hours afterwards. It was held in an action at common law that his administratrix could not recover damages for the mental or other suf- fering endured by him during the fall, because there 1 Ramsdell v. New York &c. %., 151 Mass. 245. THE MEASURE OF DAMAGES. 209 was no proof that he suffered during that time, and that the jury was not warranted in inferring that he suffered. 144. " Assessed with Reference to the Degree of Culpability" These words indicate that there must be some degree of culpability on the part of the employer, or of the person for whose negligence he is made liable. The same language is used in 212 of Massachusetts Public Statutes, ch. 112, relating to the liability of railroad corporations for an injury resulting in death. Under this statute it has been held that a railroad is not liable for the defective condition of the roadbed of a road operated but not owned by it, unless it had notice of the defect, or might have had notice of it by the exercise of due care, because there is no culpability on its part. 1 In reference to a similar statute Mr. Justice Metcalf for the court says in Carey v. Berkshire Ry., 1 Gush. 475, 480 : " And as this penalty is to be recovered by indictment, 2 it is doubtless to be greater or smaller, within the prescribed maximum and minimum, accord- ing to the degree of blame which attaches to the defend- ants, and not according to the loss sustained by the widow and heirs of the deceased. The penalty, when thus recovered, is conferred on the widow and heirs, not as damages for their loss, but as a gratuity from the Commonwealth." 1 Littlejohn v. Fitchburg Ry., 148 Mass. 478. 2 The fact that the penalty is recovered by indictment instead of by a civil action seems immaterial upon the question of the measure of damages. Doyle v. Fitchburg Ry., 162 Mass. 66, 7L 210 EMPLOYERS' LIABILITY ACTS. Where there is a series of negligent acts, the earlier acts conducing to and furnishing occasion for the later acts, the jury, in determining the degree of culpability of the defendant corporation for causing the death of the intestate, is not confined to a consideration of the act which immediately produced the death, but may consider the whole chain or series of acts, and assess damages accordingly. 1 145. In Alabama, Damages are limited to the Pecuniary Loss or Injury. In Alabama the Employers' Liability Act contains no criterion for estimating damages. In case the injury results in death, the damages recovered are "distributed according to the statute of distributions." 2 In such case the Supreme Court has held that the measure of damages is limited to the pecuniary loss or injury sus- tained by the person entitled to receive the damages, and that no damages can be recovered on account of the pain and suffering of the deceased, the grief and distress of his family, or the loss of his society. 3 The reason assigned by the court in the first case just cited is as follows : " The theory of the statute is, that those for whom compensation is provided have a pecuniary interest in the life of the person killed, and conse- quently the amount of the recovery is limited to the value of such interest." In delivering the court's opinion in Louisville &c. 1 Kansas City &c. Ry. v. Sanders, 98 Ala. 293. 2 Alabama Code, 2591. 8 Louisville &c. Ry. v. Orr, 91 Ala. 548 ; James v. Richmond &c. Ry., 92 Ala. 231. 4 Per Coleman, J., p. 552. THE MEASURE OF DAMAGES. 211 Ry. v. Or, 91 Ala. 548, 553, Mr. Justice Coleman says : " The jury have no arbitrary discretion to give as damages what they may see proper, without reference to a proper basis from which to estimate them. That the jury may have proper data from which a pecuniary compensation may be fixed, it is proper to admit evi- dence of the age, probable duration of life, habits of industry, means, business, earnings, health, skill of the deceased, reasonable future expectations ; and perhaps there are other facts which should exert a just influence in determining the pecuniary damage sustained. In proportion as all the relevant facts and circumstances of decedent's condition are brought before the jury, they will be the better prepared to ascertain correct compen- sation. If none of the facts and circumstances, except the bare killing and age of decedent, are in evidence, the verdict for other than nominal damages would be purely conjectural." In the later case of James v. Richmond &c. Ry., 92 Ala. 231, 236, the court mentioned two additional ele- ments of damage, namely, the net income and habits of economy of the deceased, which were said to be impor- tant factors in ascertaining his accumulating capacity. 1 In the same case it was held that an administratrix was entitled to recover substantial damages where it appeared in evidence that the deceased was 22 or 23 years of age, of good health, probable duration of life thirty-nine or forty years, occupation a brakeman on a freight train, average earning capacity $30 or per month. 1 See, also, Richmond &c. Ry. v. Hammond, 93 Ala. 181. 212 EMPLOYERS' LIABILITY ACTS. 146. When Deceased Employee is a Minor. In an action under the Alabama act, for causing the death of a minor employee, his personal representative is not entitled to recover damages for the earnings of the deceased during his minority, when he lived with and was supported by his father prior to his death. 1 Such damages belong to the father, and may be recov- ered by him in a separate action, and they should, therefore, be excluded by the jury in estimating the damages in an action brought by his executor or admin- istrator. 1 147. Age, Health, Strength, Capacity to earn Money, and Family of Deceased, as Elements of Damage. In Baltimore &c. Ry. v. Mackey, 157 U. S. 72, an inspector and repairer of cars, in the employ of the defendant railroad company, was killed by its negli- gence in the District of Columbia. The Act of Con- gress, approved February 17, 1885, ch. 126 (23 Stat. 307), provided that the damages not exceeding $10,000 for such death, " shall be assessed with reference to the injury resulting from such act, neglect, or default, caus- ing such death, to the widow and next of kin of such deceased person ; " and further provided, by section 3, " that the damages recovered in such action shall not be appropriated to the payment of the debts or liabili- ties of such deceased person, but shall inure to the bene- fit of his or her family, and be distributed according to 1 Alabama Coal Co. v. Pitts, 98 Ala. 285 ; Williams v. South & North Alabama Ry., 91 Ala. 636. THE MEASUKE OF DAMAGES. 213 the provisions of the statute of distributions in force in the said District of Columbia." In delivering the opin- ion of the court, Mr. Justice Harlan says, on page 93 : " Under such a statute, it is entirely proper that the jury should take into consideration the age of the deceased, his health, strength, capacity to earn money, and family. The injury done to a family consisting of a widow and helpless young children, who depended for support entirely upon the labor of a husband and father whose death was caused by the wrongful act of others, is much greater than would be done to any 'next of kin ' able to maintain themselves, and who have never depended, and had no right to depend, upon the labor or exertions of the deceased for their maintenance." The case was distinguished from that of Pennsylva- nia Co. v. Roy, 102 U. S. 451, in which a person was injured but not killed, and in which it was held that his poverty, and the number and ages of his children, were not proper elements of damage. 148. When the Deceased leaves a Widow or Dependent Next of Kin. If the employee's death was not instantaneous, but was preceded by conscious suffering, and he leaves a widow or dependent next of kin, his legal represen- tative, under the Massachusetts act as amended, may recover damages, not exceeding $5,000, both for his pain and suffering, and also for the death itself as a substantive cause of action. The jury is empowered in such an action by the executor or administrator to apportion the damages between him and the widow or dependent next of kin ; and it is further provided that 214 EMPLOYERS' LIABILITY ACTS. " the damages, so far as the same are awarded for said death, shall be assessed with reference to the degree of culpability of the employer herein, or the person for whose negligence he is made liable." J If the employee is instantly killed, or dies without conscious suffering, his widow or dependent next of kin, under the Massachusetts statute, may recover dam- ages " in the same manner, to the same extent, as if the death of the deceased had not been instantaneous, or as if the deceased had consciously suffered." 2 In Louisville &c. Ry. v. Trammell, 93 Ala. 350, the court, by Mr. Justice McClellan, says on page 354 : " The measure of damages, in all cases where suit is for injuries causing the death of an employee, is the pecuniary value of the life of the employee to his next of kin, resulting either from a relation of dependency, or from expectation of benefit from the distribution of such estate as it may be inferred from the evidence he would have earned and saved but for untimely death." In the same case it appeared that the probable dura- tion of life of the deceased was twenty-seven years ; that his earning capacity was $3QO per year ; that he saved nothing ; and that he left a widow only and no children. It was held that the measure of damages was such a sum as, if put at legal interest, would yield the widow an annual income of $150 for twenty-seven years, and exhaust the principal at the end of that period. 3 This sum the court determined to be approx- 1 Mass. St. 1892, ch. 260, 1. 2 Mass. St. 1887, ch. 270, 2. 8 It would seem that one element of damages should be, at least in the case of a young man, his prospective increase in earning and saving capacity. The case cited above fails to recognize this consideration. In THE MEASURE OF DAMAGES. 215 imately $1,650 ; and the case having been tried without a jury in the lower court, the Supreme Court, under its power to render such judgment as the trial court should have rendered, reduced the judgment from $2,500 to $1,650. In Bromley v. Birmingham Ry., 95 Ala. 397, it was held that the fact that the deceased employee left sur- viving him a wife and minor child dependent upon him for support, without proof that he expended his earn- ings wholly or in part upon them or for their benefit, cannot affect the measure of damages or strengthen the right of recovery. " Where the relation of depend- ency exists, and the proof shows expenditure for their benefit, the measure of recovery as affected by this proof is declared in the case of Louisville &c. Ry. v. Trammell, 93 Ala. 350. If the income exceed the out- lay, so that there is a regular accumulation in excess of consumption, the rule is declared in McAdory v. Louisville &c. Ry., 94 Ala. 272." 1 Fanners' Loan Co. v. Toledo &c. Ry., 67 Fed. Rep. 73, "the increased earning capacity that would come with additional experience " was recog- nized by the special master as a proper element of damage in the case of an employee of the age of thirty years who was killed through the defendant's negligence. Page 81. Although Ricks, J., reduced the mas- ter's finding from $11,606 to $10,000, he did it for the reason that the legislatures of a large number of States have fixed $10,000 as the max- imum limit in case of death by wrongful act, and not on the ground that an employee's probable increase in earning capacity was an improper element of damage. 1 Per Coleman, J., for the court, p. 406. 216 EMPLOYEES' LIABILITY ACTS. 149. When the Deceased leaves No Widow or Dependent Next of Kin. In Massachusetts, if there was conscious suffering on the part of the deceased employee, and he leaves no widow or dependent next of kin, no damages for the death itself can be recovered under the Employers' Liability Act ; a but the executor or administrator may recover damages for his mental and physical suffering, as assets of the estate. 2 If the death was instantaneous, or without conscious suffering, the measure of damages is " not less than five hundred and not more than five thousand dollars, to be assessed with reference to the degree of culpa- bility of the employer herein, or the person for whose negligence he is made" liable." 3 In Alabama, where the deceased employee leaves no next of kin entitled to inherit under the statute of distributions, only nominal damages can be recovered under the Employers' Liability Act. In a suit by the personal representative, however, he need not allege or prove that the deceased left next of kin, as the want of next of kin is merely matter of defence. 4 In the case of McAdory v. Louisville &c. Ry., 94 Ala. 272, there were net earnings, or savings, but no relation of dependence. The deceased was a switchman on a railroad, at a monthly salary of $66.66 ; age, 21 years ; unmarried ; sober and healthy, and of indus- 1 Mass. St. 1892, ch. 260, 1. 3 Ramsdell v. New York &c. Ry., 151 Mass. 245. Mass. St. 1892, 2. 4 James v. Richmond &c. Ry., 92 Ala. 231. THE MEASURE OF DAMAGES. 217 trious and economical habits ; expectancy of life, about forty, years. It was held, in an action by his personal representative under the Employers' Liability Act, that the true measure of damages was not the aggregate amount of his net earnings during the probable dura- tion of his life, estimated on the basis of his health, ability to labor, habits of sobriety, industry, and econ- omy, gross annual earnings and expenditures, but such a sum as, estimated on that basis, with legal interest added, would aggregate that amount, calculated by the American mortuary tables. A verdict for the plaintiff for $9,395.95 having been set aside by the trial judge as excessive, the Supreme Court held that such action was proper and affirmed the judgment, without attempt- ing to fix the amount of damages, as it might have done if the trial had been without a jury. 1 The rule announced by the Supreme Court of Texas, in Hous- ton &c. Ry. v. Cowser, 57 Texas, 293, 304, is quoted with approval on page 276, namely : " Perhaps the nearest measure of damages approximating this rea- sonable certainty would be such sum as would purchase an annuity if such security was in the market, equal to the value of the pecuniary aid which the plaintiff would have derived from the deceased, calculated upon the basis of all the facts and circumstances of the particular case reasonably accessible in evidence, and including the probable duration of life, as shown by the approved tables." In an action under the Alabama Employers' Liability Act, it was held that the fact that the deceased employee was suffering from pulmonary disease at the time of his 1 Louisville &c. Ry. r. Trammell, 93 Ala. 350. 218 EMPLOYERS' LIABILITY ACTS. injury is admissible in evidence for the defendant, as affecting his probable continuance in life. 1 150. Colorado Rules. In an action under the Colorado act of 1877, giving a right of action for death caused by negligence, the measure of damages has been thus described by the Supreme Court of Colorado in Pierce v. Conners, 20 Colo. 178, 182 ; 37 Pac. Rep. 721, 722 : " The true measure of compensatory relief in actions of this kind, under the act of 1877, supra, is a sum equal to the net pecuniary benefit which plaintiff might reasonably have expected to receive from the deceased in case his life had not been terminated by the wrongful act, neglect, or default of the defendant. Such sum will depend on a variety of circumstances and future contingencies, and will therefore be difficult of exact ascertainment ; but the damages to be awarded in each case may be approximated by considering the age, health, condi- tion in life, habits of industry or otherwise, ability to earn money, on the part of the deceased, including his or her disposition to aid or assist the plaintiff. Not only the kinship or legal relation between the deceased and the plaintiff, but the actual relations between them, as manifested by acts of pecuniary assistance rendered by the deceased to the plaintiff, and also contrary acts, may be taken into consideration." 2 1 Columbus &c. Ry. v. Bridges, 86 Ala. 448. 2 See, also, Moffatt v. Tenney, 17 Colo. 189 ; Hayes v. Williams, 17 Colo. 465, 468 ; Denver &c. Ry. v. Wilson, 12 Colo. 20. THE MEASURE OF DAMAGES. 219 151. Other Cases. For other cases involving the measure of damages for injuries resulting in death, in actions brought under the American prototypes of Lord Campbell's Act, see the cases cited in the note. 1 152. Exemplary or Punitive Damages. In Alabama it has been decided, in an action under its Employers' Liability Act, that such damages are not recoverable where the injury results in death. 2 The statute does not limit the amount of damages recover- able, and the measure of damages is determined upon common-law principles. Even when the negligence of the defendant or of his employees is so gross or wanton as to overcome the defence of contributory negligence, no damages beyond the point of compensation can be recovered by the personal representative. 3 Whether a like rule applies when the injury does not result in death, and the injured employee himself brings the action, seems to be doubtful. 4 In a case at common law decided in 1879 it was held that exemplary or punitive damages were recoverable for personal injuries caused by negligence, if the negli- gence was gross; and that the degree of negligence 1 Railroad Co. v. Barren, 5 Wall. 90 ; Chicago &c. Ry. v. Harwood, 88 El. 88 ; Huntingdon &c. Ry. v. Decker, 84 Pa. 419 ; Kesler v. Smith, 66 N. C. 154 ; Telfer v. Northern Ry., 30 N. J. L. 188. 2 Louisville &c. Ry. v. Orr, 91 Ala. 548 ; Columbus &c. Ry. v. Bridges, 86 Ala. 448. Louisville &c. Ry. v. Trammell, 93 Ala. 350. * Seaboard Manuf. Co. . Woodson, 98 Ala. 378. 220 EMPLOYERS' LIABILITY ACTS. is a question for the jury to determine, under proper instructions from the court. 1 In Massachusetts exemplary and vindictive damages are probably not recoverable. 2 In Connecticut it has been held, in an action under a statute resembling Lord Campbell's Act, that such damages are recoverable. 3 153. Excessive Damages : how reduced. Under the Massachusetts practice, the presiding judge, when the damages awarded by the jury appear to him to be excessive, " may either grant a new trial absolutely, or give the plaintiff the option to remit the excess, or a portion thereof, and order the verdict to stand for the residue." 4 A like rule prevails in Ala- bama and generally elsewhere. 5 A verdict of $5,000 is not excessive where the em- ployee at the time of his injury was forty-seven years old and earning fifty dollars a month, and suffered a painful fracture of the ankle, which his physician testi- fied would probably result in a permanent disability. 6 When the trial is without a jury, the Supreme Court of Alabama sitting in bane has the power to reduce the damages found by the trial judge, if they appear to be 1 South Alabama Ry. v. McLendon, 63 Ala. 266. See, also, Barbour County v. Horn, 48 Ala. 566 ; Mobile &c. Ry. v. Ashcraft, 48 Ala. 15. 2 Higgins v. Central New England Ry., 155 Mass. 176, 181 ; Barnard v. Poor, 21 Pick. 378 ; Austin v. Wilson, 4 Cush. 273. 8 Linsley v. Bushnell, 15 Conn. 225 ; Beecher v. Derby Bridge Co., 24 Conn. 491, 497 ; Murphy v. New York &c. Ry., 29 Conn. 496. 4 Doyle v. Dixon, 97 Mass. 208, 213, per Gray, J. ; Lambert v. Craig, 12 Pick. 199 ; Blunt v. Little, 3 Mason, 102, 107. 6 Stephenson v. Mansony, 4 Ala. 317. 6 Richmond &c. Ry. v. Farmer, 97 Ala. 141. THE MEASURE OF DAMAGES. 221 excessive, and to enter judgment for the reduced amount without granting a new trial, and without a remitter by the plaintiff. 1 154. Division of Damages when Employee's Negli- gence has contributed to his Injury. In the admiralty courts, where an employee is injured on board ship through a marine tort arising partly from the negligence of the ship's officers and partly from his own negligence, the fact that his own negli- gence contributed to his injury does not prevent a recovery, it only causes a division of damages and a reduction in the amount recoverable. 2 In the common-law courts, however, contributory negligence on the part of an employee will prevent a recovery of any damages, even when the injury occurred on board ship partly through the negligence of its officers. 3 But the mere fact that the plaintiff aggravates his injury after it is received by his negli- gent conduct will not prevent him from recovering for the original injury inflicted by the defendant's negli- gence. 4 1 Louisville &c. Ry. v. Trammell, 93 Ala. 350. 2 The Max Morris, 137 U. S. 1 ; The Julia Fowler, 49 Fed. Rep. 277. 8 Kalleck v. Deering, 161 Mass. 469, 472. That contributory neg- ligence prevents a recovery under the Employers' Liability Acts, see 113-122. * Hibbard v. Thompson, 109 Mass. 286 ; Owens v. Baltimore &c. Ry., 35 Fed. Rep. 715 ; Gould v. McKenna, 86 Pa. St. 297 ; Hathorn v. Rich- mond, 48 Vt. 557. 222 EMPLOYEES' LIABILITY ACTS. 155. Remote or Conjectural Damages. Under the Alabama statute for the death of a minor employee, it has been decided that the probability of his marrying and having children, if he had lived, is too remote and conjectural to be considered by the jury in estimating the amount of recovery. 1 Tennessee Coal Co. v. Herndon, 100 Ala. 451. CHAPTER XII. DIRECTING A NONSUIT OB VERDICT FOR DEFENDANT. I. Defendant's Negligence. Section 156. Subdivisions of subject and preliminary remarks. 157. Is mere happening of accident prima facie evidence of neg- ligence? (1) Actions by non- employees at common law. 158. Same. (2) Common-law rule in actions by employees. 159. Slight evidence sufficient, but not mere scintilla. 160. Automatic starting of ma- chinery. 161. Inference when he dence. against defendant introduces no evi- Section 162. What amounts to a " defensive explanation " of the injury. 163. Actions under Employers' Lia- bility Acts. Subdivisions of subject. 164. (a) Defects in the ways, works, machinery, or plant. 165. Same. 166. (ft) Negligence of a superin- tendent. 167. Same. 168. (c) Negligence of a person in charge or control of any sig- nal, switch, locomotive en- gine, or train upon a railroad. 169. Same. 156. Subdivisions of Subject and Preliminary Remarks. ONE of the most difficult questions relating to suits under Employers' Liability Acts is, What evidence is or is not sufficient to entitle the plaintiff to go to the jury ? or, in other words, What evidence will or will not authorize the trial judge in nonsuiting the plaintiff, or in directing the jury to return a verdict for the defend- ant ? This question will be discussed under the follow- ing subdivisions : - 224 EMPLOYERS' LIABILITY ACTS. I. Defendant's Negligence. II. Plaintiff's Contributory Negligence. 1 HI. Assumption of Risk, and Volenti nonfit Injurla? In Gardner v. Michigan Central Ry., 150 U. S. 349, 361, Mr. Chief Justice Fuller, speaking for the court, says : " The question of negligence is one of law for the court only where the facts are such that all reason- able men must draw the same conclusion from them, or, in other words, a case should not be withdrawn from the jury unless the conclusion follows, as matter of law, that no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish." 3 " It is not a question of the weight of evidence, or whether the verdict ought not to be set aside on a motion for a new trial. When the question is raised by exceptions, the only inquiry is, whether there is any evidence proper to submit to the jury as having a tendency to support the legal propositions which charge the defendant with liability." 4 " The first inquiry is whether there was any evidence on behalf of the plain- tiff upon which the jury could legally have found a verdict in his favor. If there was, the question of its weight or value cannot be considered by us." 5 1 Ch. xiii. 170-173, post. 2 Ch. xiv. 174-190, post. 8 See, also, Baltimore &c. Ry. v. Mackey, 157 U. S. 72 ; Grand Trunk Ry. v. Ives, 144 U. S. 408, 417, and cases cited ; Hall v. Posey, 79 Ala. 84 ; Pennsylvania Ry. v . Ogier, 35 Pa. St. 60 ; Gaynor v. Old Colony Ry., 100 Mass. 208, 212 ; Marietta &c. Ry. v. Picksley, 24 Ohio St. 654 ; Jamison v. San Jose' &c. Ry., 55 Cal. 593. * Ford v. Fitchburg Ry., 110 Mass. 240, 260, per Colt, J., for the court, citing Forsyth v. Hooper, 11 Allen, 419. 5 Taylor v. Carew Manuf. Co., 140 Mass. 150, 151, per Devens, J., citing Heywood v. Stiles, 124 Mass. 275. DIRECTING VERDICT FOR DEFENDANT. 225 In Louisville &c. Ry. v. Allen, 78 Ala. 494, 502, Mr. Justice Somerville, in delivering the opinion, says : "The question of negligence is one of fact for the determination of the jury in cases of doubt, either where the facts are disputed or where different minds may reasonably draw different inferences or conclusions. It is a question of law, however, to be decided by the court, where the facts are undisputed and the inference to be drawn from them is clear and certain. 1 The court will, accordingly, give a general charge on the evidence when requested, where the evidence bearing on the question of negligence vel non is such as that the court would feel authorized to sustain a demurrer to it." 2 Where the evidence is conflicting, the circumstance that the presiding justice is clearly of the belief that the question should be decided in one way does not justify him in directing a verdict for the party in whose favor that belief operates, though it would justify him in granting a new trial if the jury found for the other party. 3 The circumstance that the facts of the case are undis- puted is not always sufficient to justify the presiding judge in withdrawing the case from the jury and directing a verdict for one of the parties. In an action for negligence causing personal injury, the question whether either or both of the parties are at fault is for the jury, unless the general knowledge and experience 1 Citing Montgomery v. Wright, 72 Ala. 411. 2 Citing Smoot v. Mobile &c. Ry., 67 Ala. 13. a Chambliss v. Mary Lee Coal Co., 103 Ala. 000 ; 16 So. Rep. 572. 226 EMPLOYERS' LIABILITY ACTS. of men at once condemn the conduct of one of them as careless, or there is no evidence of negligence. 1 157. Is Mere Happening of Accident Prima Facie ^Evidence of Negligence? (1) Actions by Non- employees at Common Law. In actions by travellers and others who are not employees of the defendant, it has been repeatedly decided that proof that the plaintiff was injured on the defendant's premises, or by some cause originating on his premises, is, in the absence of a defensive expla- nation, sufficient prima facie evidence of defendant's negligence to entitle the plaintiff to go to the jury. 2 The grounds of these decisions are that the defendant is liable to such persons for the negligence of his employees as well as for that of himself ; and that, as the premises are under the exclusive management and control of the defendant or his employees, the injury is more naturally to be attributed to his or their acts 1 Kerrigan v. West End Ry., 158 Mass. 305 ; Lane v. Atlantic Works, 107 Mass. 104. 2 Feital v. Middlesex Ry., 109 Mass. 398 ; White v. Boston & Albany Ry., 144 Mass. 404 ; Thomas v. Western Union Telegraph Co., 100 Mass. 156 ; Hicks i;. New York &c. Ry., 164 Mass. 424 ; Howser v. Cumberland &c. Ry., 80 Md. 146 ; s. c., 27 L. R. A. 154 ; Stokes v. Saltonstall, 13 Peters, 181 ; Gleeson v. Virginia Midland Ry., 140 U. S. 435 ; Rose v. Stephens Transportation Co., 11 Fed. Rep. 438 ; Judson v. Giant Powder Co., 107 Cal. 549 ; 40 Pac. Rep. 1020 ; Dixon v. Pluns, 98 Cal. 384 ; Volk- mar v. Manhattan Ry., 134 N. Y. 418 ; Mullen v. St. John, 57 N. Y. 567 ; Cummings v. National Furnace Co., 60 Wis. 603 ; Kirst v. Milwaukee &c. Ry., 46 Wis. 489 ; Iron Ry. v. Mowery, 36 Ohio St. 418 ; Ryder v. Kinsey, 59 Minn. 000 ; 64 N. W. Rep. 94 ; Scott v. London Docks Co., 3 H. & C. 596 ; Carpue v. London &c. Ry., 5 Q. B. 747 ; Kearney v. Lon- don &c. Ry., L. R. 6 Q. B. 759. Contra, Walker v. Chicago &c. Ry., 71 Iowa, 658. DIRECTING VERDICT FOR DEFENDANT. 227 than to the act of a stranger, and his means or sources of knowledge are superior to those of the plaintiff. Unless, therefore, the defendant explains the accident by proof that it was caused by a stranger or by some other cause for which he is not responsible, the plaintiff is entitled to go to the jury, and a verdict in his favor will stand. Although this rule modifies the rule relating to the burden of proof, it does not cast the burden on the defendant : the plaintiff still retains the burden of showing that the defendant's negligence caused his injury. Such evidence, however, on the part of the plaintiff is not conclusive in his favor, nor is he entitled to a ruling to that effect. It should be taken into con- sideration by the jury and allowed such weight only as they think reasonable. Hence, if they return a verdict for the defendant, it will not be set aside because the presiding judge refused to rule that it was conclusive evidence, or that it changed the burden of proof. 1 It has been decided by the courts of some jurisdic- tions that this presumption of negligence arises only when there is a contractual relation between the plain- tiff and the defendant, such as that of passenger and carrier, and that the doctrine does not apply to persons in other relations. 2 The better view, however, seems to be that the existence of such contractual relation is not essential, and that the presumption arises without it. 3 1 Le Barren v. East Boston Ferry Co., 11 Allen, 312. 2 Huff v. Austin, 46 Ohio St. 386 ; Young v. Bransford, 12 Lea (Tenn.), 232. 8 Judson v. Giant Powder Co., 107 Cal. 549 ; 40 Pac. Rep. 1020 ; Rose v. Stephens Transportation Co., 11 Fed. Rep. 438 ; and other cases cited above under the main proposition. 228 EMPLOYEES' LIABILITY ACTS. 158. Same. (2) Common-Law Rule in Actions by Employees. This rule, however, does not apply to actions between employee and employer for personal injuries founded on negligence. As between these two classes of per- sons, it cannot be affirmed that the employer has the exclusive management or control of the premises, or that his means or sources of knowledge are superior to those of the employee ; and it is well settled that the common employer is not liable to one employee for the negligence of a fellow-servant. It is, therefore, gen- erally settled at common law that unless an employee shows more than that he was injured while lawfully engaged on his employer's work or premises, he is not entitled to go to the jury on the question of defendant's negligence, and that a verdict should be directed for the defendant. 1 In the case of Ouillette v. Overman Wheel Co., 162 Mass. 306, the plaintiff, while standing in his place on the floor of defendant's factory, was injured by the fall- ing upon him of shafting and pulleys fastened to beams overhead by two hangers. He contended, and intro- duced evidence tending to show, that the shaft and the machinery connected with it, and its method of attach- ment to the floor above, were improper and insecure, and that the defendant ought to have known their unsafe condition. At the trial the defendant requested 1 Reed v. Boston & Albany Ry., 164 Mass. 129 ; Duffy v. Upton, 113 Mass. 544 ; Nason v. West, 78 Me. 253 ; Toledo &c. Ry. v. Moore, 77 111. 217 ; Hudson v. Rome &c. Ry., 145 N. Y. 408 ; 40 N. E. Rep. 8 ; Mobile &c. Ry. v. Thomas, 42 Ala. 672 ; Louisville &c. Ry. v. Allen, 78 Ala. 494 ; Short . New Orleans &c. Ry., 69 Miss. 848 ; 13 So. Rep. 826. DIEECTING VEEDICT FOR DEFENDANT. 229 the judge to rule that " no burden rests on the defend- ant to show or explain the cause of the accident." In his charge to the jury the justice stated, on page 309, " that under some circumstances the plaintiff's injury from the breaking of the defendant's machinery, espe- cially where the means of explanation are more likely to be within the control of the defendant than of the plaintiff, is itself evidence of negligence. The breaking of the machinery, in connection with a failure on the part of one who presumably can explain to give expla- nation, may be evidence of want of care in providing it. But this principle has no application to this case. The injury, though caused by the breaking of the defend- ant's machinery, is not in itself evidence that the defendant was wanting in due care to provide a reason- ably safe place for the plaintiff to do his work in." The jury returned a verdict for the plaintiff and the defendant excepted. The full court overruled this exception, on the ground that the instruction, that under the circumstances of the case the breaking of the machinery was no evidence of negligence on the defend- ant's part, was more favorable to the defendant than the ruling requested by it that the defendant was not bound to explain the cause of the accident. There are, however, some cases of a contrary tend- ency. In Barnowsky v. Helson, 89 Mich. 523, it was held that the falling of a roof of a building which the defendant was engaged in raising, by which the plain- tiff's intestate, while in the employ of the defendant, was killed, raised a presumption of negligence on the defendant's part which entitled the plaintiff to go to the jury, in the absence of a defensive explanation by 230 EMPLOYEES' LIABILITY ACTS. the defendant showing that the roof fell without his fault. The evidence for the plaintiff tended to show that while the roof was being raised by the defendant under a contract with the owner of the building, by means of jack-screws placed upon boxes made for that purpose, it suddenly slipped or tipped away from the braces, and fell upon the deceased, who was working upon one of the walls of the building. In delivering the court's opinion, Mr. Justice Morse says, on pages 524, 525 : " In this case the falling of the roof was in and of itself some evidence that the work of raising it was not being done with the ordinary care and skill. It is true that the mere fact of an injury does not impute negligence on the part of any one ; but where a thing happens which would not ordinarily have occurred if due care had been used, the fact of such happening raises a presumption of negligence in some one. For instance, if the waU of a building falls down and injures a person walking along the street or standing beside the building, the clear presumption is that the building was either negligently built, or that it was not kept in a reasonably safe condition after it was erected, since buildings properly constructed do not ordinarily fall of their own weight. 1 In the present case it must be apparent, and within the knowledge of every one, that a roof of this kind could be raised safely, and without falling, if such raising were done with proper care and caution, and by one having the necessary skill and experience to manage the work.' "2 1 This point was decided in Mullen v. St. John, 57 N. Y. 567. 8 This case is also reported, with note giving many decisions, in 15 L. K. A. 33. DIRECTING VEEDICT FOR DEFENDANT. 231 In Mulcairns v. Janesville, 67 Wis. 24, it was held that, in an action against a city by one of its employees, the fact that- the wall of a cistern, which was in course of construction by the city, fell by its own weight, or through the pressure of earth and gravel behind it placed there by the city, and injured the plaintiff while he was working upon it, raised a presumption of negli- gence on the part of the defendant. 1 159. Slight Evidence Sufficient, but not Mere Scin- tilla. At the same time, it requires but little additional evi- dence on the part of the employee to turn the scale in his favor and to warrant a verdict for him, on the ground that the employer was negligent. In Toy v. United States Cartridge Co., 159 Mass. 313, the plaintiff, while in the defendant's employ, was injured by the breaking of a punch in a cartridge machine which she was operating. She testified that the second hand had put in a new punch, because she had complained of the old one as scratching ; that the second time she used the new one it burst and caused her injuries ; that, before she started the machine, she saw a small black mark that extended half-way round the punch about in the middle of it ; and that " she did not know what this black mark meant, but that it looked like a knitting-needle that had gone rusty and black." The foreman and the second hand testified that they saw nothing the matter with the punch. It was held that there was sufficient evidence of negligence 1 See, also, Posey v. Scoville, 10 Fed. Rep. 140 ; Grimsley v. Hankins, 46 Fed. Rep. 400. 232 EMPLOYERS' LIABILITY ACTS. to warrant a verdict for the plaintiff, and that the case should have been submitted to the jury. 1 In Graham v. Badger, 164 Mass. 42; s. c., 41 N. E. Rep. 61, the plaintiff, while in the defendant's employ, was injured by an iron block falling upon him from a derrick. The fall of the block was due to the breaking of a rope at a point where it had been spliced. The weight attached to the rope was not sufficient to break or to endanger the apparatus if it had been in proper condition. The defendant's evidence, if believed by the jury, tended to show that the breaking of the rope was due to its kinking and being caught in a wheel. At the trial the defendant requested the judge to rule that the mere breaking of the rope was not prima facie evidence of negligence on the defendant's part. The judge refused to rule as requested, and instead instructed the jury that, if they found that the rope was defective while in the defendant's care, that fact was evidence which, unexplained, would warrant them in finding that the defendant was negligent. It was held that the refusal to rule as requested by the defendant, and the ruling given, were both correct ; that the jury were not bound to believe the explanation offered by the defence if it seemed to them incredible, and that a verdict for the plaintiff was warranted by the evidence ; that the jury might infer from the breaking of the rope that it had not been spliced properly, and that this defect might have been discovered by proper inspection, and that the court could not say that the defect was latent or hidden. Although the declaration in this case con- 1 Other cases to the same effect are : Moynihan v. Hills Co., 146 Mass. 586 ; Spicer v. South Boston Iron Co., 138 Mass. 426. DIRECTING VERDICT FOR DEFENDANT. 233 tains counts under the Employers' Liability Act, the reasoning of the court seems to be confined to the com- mon-law count. On the other hand, a mere scintilla of evidence of negligence on the defendant's part is not sufficient to entitle the plaintiff to go to the jury, either at common law 1 or under the Employers' Liability Act, 2 and it may be so controlled by the defendant's evidence as to jus- tify an instruction to find for the defendant. This is especially true when there is no evidence to connect the defendant's negligence with the injury for which suit is brought. 3 In Hudson v. Rome &c. Ry., 145 N. Y. 408, a fire- man of a locomotive was killed by the scorching and consequent collapse, during a trip, of the crown-sheet of the locomotive. His administrator brought this suit against the employer, claiming that the scorching had taken place at some time previous to the trip, and that defendant was negligent in sending the engine out on the road in that condition. The only evidence which tended to support this view was the testimony of the engineer, who stated that he had kept the crown-sheet covered with water throughout the trip, and that it had two full gauges of water over it but a few minutes before the accident. Two experts testified for the defendant that in their opinion, based on an examina- tion of the parts of the locomotive after the accident, 1 Hudson v. Rome &c. Ry., 145 N. Y. 408 ; 40 N. E. Rep. 8 ; Nason v. West, 78 Me. 253. 2 Shea v. Wellington, 163 Mass. 364 ; Ross v. Pearson Cordage Co., 164 Mass. 257 ; 41 N. E. Rep. 284 ; Louisville &c. Ry. v. Binion, 98 Ala. 570 ; Tuck v. Louisville &c. Ry., 98 Ala. 150. 3 Wakelin v. London &c. Ry., 12 App. Cases, 41. 234 EMPLOYERS' LIABILITY ACTS. the scorching was done at or very near the time of the collapse, and that it was caused by the crown-sheet not being properly covered with water. It was the duty of the engineer to keep the crown-sheet covered with water during the trip. It was held, reversing 26 N. Y. Supp. 386, that the evidence was not sufficient to warrant a verdict for the plaintiff ; that the evidence of defend- ant's negligence was a mere scintilla, which was con- trolled by the defendant's experts. 160. Automatic Starting of Machinery. In the case of injuries caused by the automatic start- ing of machinery while the plaintiff is engaged in his ordinary duties, only slight evidence of a defect, or of the employer's negligence, is necessary to establish a prima facie case. In Donahue v. Drown, 154 Mass. 21, the plaintiff, while cleaning a machine at rest, that being part of her duty, was injured by its automatic startingf. " There was evidence that the machine was O not put up properly ; that the driving-pulley upon the main shaft had a convex surface, instead of a flat sur- face such as it should have had, and was so fixed with reference to the fixed pulley that the tendency was to draw the belt from the loose pulley when the machine was not in motion on to the fixed pulley, and thus to start the machine." 1 It also appeared that the machine in question, as well as others in the defendant's fac- tory, had previously started automatically. It was held that such evidence would warrant a finding of the defendant's negligence. 1 This statement of facts is taken from the court's opinion by Lathrop, J., in Ross v. Pearson Cordage Co., 164 Mass. 257, 262. BISECTING VERDICT FOR DEFENDANT. 235 In Mooney v. Connecticut River Lumber Co., 154 Mass. 407, the plaintiff was injured by the automatic starting of a carriage connected with a sa wing-machine in the defendant's mill. The carriage was run by steam up and down a track. It was undisputed that a machine which would so start was improperly constructed or adjusted, and was unsafe. Three days before the acci- dent the machine had started in the same manner when no one was near it. The defendant's foreman knew this fact, as well as the plaintiff, and the foreman told the plaintiff that it had been repaired, and it had worked perfectly afterwards up to the time of the accident. It was held that the plaintiff was entitled to go to the jury on the question of the defendant's negligence. 1 The fact, however, that the machine is not supplied with a safety appliance, which would have prevented its automatic starting, although coupled with expert testi- mony that the machine was dangerous without such safety appliance, will not require its submission to the jury, either at common law or under the Employers' Liability Act. In Ross v. Pearson Cordage Co., 164 Mass. 257 ; 41 N. E. Rep. 284, the plaintiff, while engaged in cleaning a machine known as a drawing-frame, which was then at rest, had her hand caught in its cog-wheels by its automatic starting. The machine was of the ordinary construction, and was started and stopped by a belt- shipper, used to throw the driving-belt from the loose pulley to the tight pulley to start the machine, and the reverse to stop it. The machine required two persons 1 See, also, Connors v. Durite Manuf. Co., 156 Mass. 163. 236 EMPLOYEES' LIABILITY ACTS. to operate it, one at the shipper end and one at the opposite end of the machine. The shipper was about two feet long, with nothing to hold it in place except that it was pivoted in the centre. The plaintiff's expert testified that a machine operated in that manner by two persons had some special danger, which rendered it necessary to have the shifting-bar latched or locked, in order to prevent the belt from running from the loose on to the tight pulley and starting the machine. There was no latch or lock on the shifting-bar, and the plaintiff contended that the absence of such a safety appliance was a defect in the condition of the defend- ant's machinery which entitled her to go to the jury either on her common-law or statutory count ; but the court held the contrary. In delivering the opinion, Mr. Justice Lathrop says, on page 262 : " The machine was in the same condition at the time of the accident as it was when the plaintiff entered the defendant's employ. There is no evidence that there was any defect in it, or that it differed from similar machines in use elsewhere. The mere fact that certain contrivances, if on the machine, might have prevented its starting, is not enough to charge the defendant ; and we see no evidence to warrant the jury in finding that there was any breach of duty on the part of the defendant." In Dingley v. Star Knitting Co., 134 N. Y. 552, a boy fifteen years of age was injured by the automatic starting of a carding-machine. It had started in the same way three times previously, but no defect in the machine was pointed out in the evidence at the trial. It was held by four justices (two justices dissenting) DIRECTING VERDICT FOR DEFENDANT. 237 that the evidence would not warrant a finding of neg- ligence on defendant's part, and that a nonsuit was properly ordered. 161. Inference against Defendant when he intro- duces No Evidence. This rule applies with greater force when the defend- ant does not introduce any evidence respecting the cause of the accident. In such case the jury is entitled to draw an inference against the defendant. Thus, in a leading Massachusetts case, Griffin v. Boston & Albany Ry., 148 Mass. 143, a night-watchman in the defend- ant's employ was kiUed by the rear part of a freight train, which had separated into two parts before it reached his station. The only evidence tending to show negligence of the defendant was that the coupling- link between the two cars which separated had spread or opened sufficiently wide to allow the coupling-pin to come out. The defendant offered no evidence what- ever. It was held that, in the absence of a defensive explanation respecting the cause of the injury, the evidence established a prima facie case of negligence which would warrant a verdict in favor of the plain- tiff. 1 In delivering the court's opinion, Mr. Justice Charles Allen says, on page 147 : " The separation of a train in consequence of the spreading of a link, where nothing further appears, is more naturally to be attributed to an imperfection or defect in the link than to any other cause. Ordinarily, such separation would not happen if the link was sound 1 See, also, to the same effect, Guthrie v. Maine Central Ry., 81 Me. 572. 238 EMPLOYERS' LIABILITY ACTS. and suitable for use. If the link was not sound and suitable for use, the fact of its being used in that connec- tion properly calls for explanation from the defendant; and if, under such circumstances, the defendant fails to put in any evidence, some inference against it may be drawn therefrom. The fact may be susceptible of an explanation sufficient to exonerate the defendant. But, in the absence of such explanation, we think the jury might properly infer negligence on the part of the defendant." 162. What amounts to a" Defensive Explanation" of the Injury. A " defensive explanation " of the injury means an explanation founded upon a cause for which the defend- ant is not responsible to the plaintiff. Joy v. Winnisimmet Co., 114 Mass. 63, presents an illustration of a " defensive explanation " respecting the cause of the injury. The plaintiff was a passenger on a ferry-boat owned by the defendant, and was injured while leaving the boat by being crushed between the boat and the landing-slip. The plaintiff's evidence showed that a chain used to prevent the passengers from leaving the boat before it was fastened to the slip had been removed before it was so fastened ; but his evidence did not show that any of the defendant's ser- vants had removed the chain, unless the fact that the chain had been removed when he attempted to leave the boat was evidence of that fact. It also appeared that about fifty persons had pressed forward and left the boat in advance of the plaintiff. On behalf of the defendant, the servant whose duty it was to fasten the DIRECTING VERDICT FOR DEFENDANT. 239 boat and remove the chain testified, without contra- diction, that at the time of the accident he had not finished securing the boat, and had not removed the chain. It was held that the evidence would not war- rant a finding of negligence on defendant's part, and that the plaintiff was not entitled to go to the jury. If the undisputed evidence shows that the injury was caused by a latent defect, which could not have been discovered and remedied by ordinary care and inspec- tion, this will constitute a defensive explanation and rebut the presumption of negligence, and warrant an instruction to find for the defendant. In Ryder v. Kinsey, 59 Minn. 000 ; 64 N. W. Rep. 94, the plaintiff, while walking along a public street in the city of St. Paul, was injured by the fall of a wall of a small building owned by the defendant. The building had been bought by the defendant after its construction, and there was nothing in its external appearance to indicate a defective condition. After the wall fell, it was discovered that it had not been " anchored," or supported in the manner usual in the case of such veneered brick walls, and this was the cause of its fall. It was held that this was a latent defect in the wall which could not have been discovered by ordinary care ; that such undisputed evidence fur- nished an explanation respecting the cause of the wall's falling, and justified a direction to return a verdict for the defendant. 1 In Griffin v. Boston & Albany Ry., 148 Mass. 143, the facts of which are stated in 161 above, it was held that if a fellow-servant had caused the separation 1 See, also, Louisville &c. Ry. v. Campbell, 97 Ala. 147. 240 EMPLOYERS' LIABILITY ACTS. of the train by pulling the coupling-pin, or if its sep- aration had been caused by any other matter for which the defendant was not responsible to the plaintiff, this would have constituted a defensive explanation which would have justified an instruction to find for the defendant. The jury are, of course, not bound to believe the explanation offered by the defendant, and therefore, if it be disputed by the plaintiff, the question should be submitted to the jury with proper instructions, and should not be withdrawn from them. 1 163. Actions under Employers 1 Liability Acts. Subdivisions of Subject. This subject will be discussed under three subdi- visions, as follows : (a) Defects in the ways, works, machinery, or plant ; (b) Negligence of a superintendent ; (c) Negligence of a person in charge or control of any signal, switch, locomotive engine, or train upon a railroad. 164. (a) Defects in the Ways, Works, Machinery, or Plant. In Bowers v. Connecticut River Ry., 162 Mass. 312, a freight brakeman was injured while attempting to couple two foreign cars then in use by the defendant railroad. The defect complained of was too much lateral motion or play of the draw-bars, which allowed one draw-bar to slip out of place and by the other 1 Graham v. Badger, 164 Mass. 42 ; 41 N. E. Rep. 61 ; Volkmar v. Manhattan Ry., 134 N. Y. 418. DIRECTING VERDICT FOR DEFENDANT. 241 draw-bar, which defect had not been discovered or remedied owing to the negligence of the defendant's car-inspector. One witness for the plaintiff testified that there was " all of four inches' " play in the draw- bar of one of the cars, and " not quite so much play " in the draw-bar of the other car, and that there ought not to be over an inch play in the draw-bars. Car- inspectors were furnished by the defendant at the sta- tion where the injury occurred. Under the first count, which was at common law, it was held that a verdict was properly ordered for the defendant, because there was no sufficient evidence that the defendant had failed to make proper provision for the inspection of foreign cars, and the negligence in not discovering the defect, if any, was that of a fellow-servant, the defendant's common-law duty being merely that of inspection. 1 With respect to the second count, however, which was under the Employers' Liability Act, for a defect in the condition of the ways, works, or machinery, etc., it was held that the plaintiff was entitled to go to the jury; that the cars, though not owned by the defend- ant, must be deemed a part of its works and machinery within the meaning of the act, and that there was sufficient evidence of a defect therein, 2 and of negli- gence on the part of the car-inspector in failing to dis- cover or remedy the defect, to warrant a verdict for the plaintiff. In Kansas City &c. Ry. v. Webb, 97 Ala. 157, a 1 Mackin v. Boston & Albany Ry., 135 Mass. 201. 2 The draw-bar of a locomotive engine, if placed too low, may be a defect which will render an employer liable to an employee even at common law. Lawless v. Connecticut River Ry., 136 Mass. 1. 242 EMPLOYERS' LIABILITY ACTS. locomotive jumped the track and injured the engineer. The plaintiff's evidence tended to show that two defects in the track had existed for some weeks before the accident, to the knowledge of the road-master and sec- tion foreman, and that they had failed to remedy them : first, that a split rail which had formed part of a switch had been allowed to remain after the use of the switch had been discontinued, and that this rail had been insecurely fastened, and had become loose and out of line with the succeeding rail ; second, that in constructing the curve where the accident happened, which was on a scale of fourteen degrees, the outer rail was not sufficiently raised above the inner rail. In an action under the Employers' Liability Act, it was held that the plaintiff was entitled to go to the jury, and that a finding of negligence on the part of the defend- ant railroad was warranted by the evidence. The mere fact, however, that a car-brake sticks does not constitute a defect in its condition within the Alabama statute, nor entitle the plaintiff to go to the jury. In Louisville &c. Ry. v. Binion, 98 Ala. 570, a freight brakeman, while making a third attempt to let off a sticking brake, was thrown between the moving cars and injured. He had himself set the brake a short time before the accident. There being no other evidence that the brake was defective, it was held that an action under the Employers' Liability Act could not be maintained, and that the presiding justice should have given the general affirmative charge for the de- fendant. Nor does the fact that a brakeman was injured through the breaking of the brake-rod of a railroad car DIRECTING VERDICT FOR DEFENDANT. 243 constitute sufficient evidence of negligence to require the submission of the case to the jury, even when half of the break was an old and rusty break, if it was so situated under the car as to form a hidden defect which could not be discovered upon careful inspection. 1 165. Same. In Allen v. Smith Iron Co., 160 Mass. 557, an employee was killed by the breaking of a wooden lever, which was being used to raise an iron door, which formed half the bottom of a cylindrical furnace. In an action under the Employers' Liability Act by his administratrix, it appeared that the lever had been in use for a long time, but was not specially worn at the point of strain, and the plaintiff claimed that she was entitled to go to the jury on the ground that the defendant failed to furnish a proper lever. It was held that a verdict should have been directed for the defendant. In delivering the opinion of the court, Mr. Justice Holmes says, on page 558 : " In the first place, there is no evidence that the stick [lever] was defective except that it broke, and none that it appeared to be defective, or could have been discovered to be so. It had been in use for a long time, but was not specially worn at the point of strain. It would not have been permissible for the jury to find that the stick ought to have been known to be defective because of its age alone." In Tuck v. Louisville &c. Ry., 98 Ala. 150, an action under the Alabama statute, a freight brakeman was killed while in the discharge of his duties. The plain- 1 Louisville &c. Ry. v. Campbell, 97 Ala. 147. 244 EMPLOYERS' LIABILITY ACTS. tiff's evidence showed that after the freight train had proceeded eighty miles it separated into two parts by reason of a tail - bolt, which held the cars together, drawing out. It was held that the fact that the train separated under these circumstances was not sufficient evidence of a defect in the condition of the machinery of the defendant to entitle the plaintiff to go to the jury, and that a verdict was properly ordered for the defendant. In Richmond &c. Ry. v. Weems, 97 Ala. 270, the plaintiff, while engaged in working a derrick, was injured by the breaking of the gudgeon-pin which fastened the arms of the derrick to the mast. The pin was a comparatively new one, and was made of steel. The plaintiff's evidence tended to show that the pin was too small and should have been made of iron, and contended that it constituted a defect in the defend- ant's machinery, and that it was unsafe and unfit for the purpose for which it was intended and used. The defendant's evidence was of a contrary tendency. It was held that the question of defendant's negligence in furnishing such a pin was one for the jury, and that the affirmative charge to find for the defendant was properly refused. In Bivins v. Georgia Pacific Ry., 96 Ala. 325, a freight brakeinan, while attempting to board his train in motion after setting a switch, caught his clothes on the switch-handle, and was pulled off the car and fell under the wheels. The only defect complained of was that the sill on which the machinery rested for throw- ing the switch extended beyond the track embankment, and that there was no filling under the extension so DIRECTING VERDICT FOR DEFENDANT. 245 as to bring the embankment up to a level with it. The switch had been in the same condition for five years prior to the injury, during which period no accident had occurred, and the plaintiff was familiar with the switch, having been a brakeman on that section of the road for four months. There was no proof, other than the accident itself, that machinery thus constructed was dangerous. It was held that an instruction to find for the defendant was properly given. In Smith v. Baker, [1891] A. C. 325, 335, an action under the English act of 1880, Lord Halsbury, L. C., says, though he immediately adds that the question of the defendant's negligence was not open on that appeal : " I think the unexplained and unaccounted-for fact that the stone was being lifted over a workman, and that it fell and did him damage, would be evidence for a jury to consider of negligence in the person responsible for the operation." 166. (6) Negligence of a Superintendent. 1 In Mahoney v. New York &c. Ry., 160 Mass. 573, a freight-handler was injured while assisting in unloading a bale of burlaps, weighing about 2,200 pounds, from an express wagon. One Grady was the section boss who superintended the unloading, and whose negligence the plaintiff alleged caused his injury. The express wagon had been backed up to the door of the defend- ant's freight-house, and, while the plaintiff and others were trying to push the bale of burlaps from the wagon into the freight-house, the rear of the wagon settled down, the bale feh 1 out, the wagon was forced into the 1 For other cases upon this subject, see ch. iv. 52-60. 246 EMPLOYERS' LIABILITY ACTS. street, and the plaintiff was thrown out under the bale and injured. Grady had ordered the teamster to trig or scotch the wheels of the wagon, but he had not used a gang-plank which was near by, and which would have prevented the accident if it had been used. It was held that the evidence justified a finding that the superintendent, Grady, was negligent. In the course of the opinion, Mr. Justice Knowlton says, on page 579 : " The mere happening of an accident, if it is one that the exercise of ordinary care would commonly prevent, is some evidence of negligence. 1 Grady, the superintendent, had the responsibility of determining how the bales should be loaded [unloaded]. It was proved that there was a gang-plank near by which might have been used, and which if used would have prevented this accident. The jury may have found from the evidence that, if the wheels of the wagon had been more securely trigged or scotched, it would not have moved forward from the pressure and the accident would not have happened. It was the duty of Grady, who ordered the men to unload the bale, to take all reasonable precautions to insure their safety. In this respect his relation to the work differed materially from that of the plaintiff and the other men. The plaintiff had a right to assume that the wheels were properly trigged, and that the method selected by the foreman for unloading was safe and proper." In Hennessy v. Boston, 161 Mass. 502, a laborer while digging a trench was injured by the side caving in, through the negligence, as he alleged, of the de- fendant's superintendent. There were no braces in the 1 Citing White v. Boston & Albany Ry., 144 Mass. 404. DIRECTING VERDICT FOR DEFENDANT. 247 trench, which was deep, long, and narrow, except two blocks of earth, about four feet wide, which were left untouched, and these blocks were about twenty-five feet apart. There was no unexpected or extraneous cause for the caving in of the earth. It was held that the plaintiff was entitled to go to the jury on the question of the superintendent's negligence. In the language of the court, stated by Mr. Justice Knowlton on page 503 : " It was an accident of a kind that is commonly preventable by the exercise of ordinary care ; and the accident itself, in connection with the circumstances shown in regard to the depth of the trench and the slope of its sides, and the distance of the braces from each other, furnishes evidence from which the jury might have found negligence on the part of the fore- man in charge of the work." l 167. Same. In Carroll v. Willcutt, 163 Mass. 221, the plaintiff, while engaged in cleaning brick, was struck on the head and leg by a large ledge-stone, which fell from a staging about twenty feet above him. A considerable part of this stone projected over the outside edge of the staging,. and had been in that position for two or three days, and the plaintiff claimed that the defend- ant's superintendent was negligent in not discovering that the stone was so placed as to be liable to fall if it should be hit, or if the staging should be jarred in the prosecution of the work. How much of the stone pro- jected over the staging could only be seen from above, and there was no evidence that the stone had been so 1 See, also, Connolly v. Waltham, 156 Mass. 368. 248 EMPLOYERS' LIABILITY ACTS. placed by the specific order of the superintendent, or that he had visited that part of the work while the stone was there, or had actual knowledge that the stone was upon the staging. The floors had not been put in, and the roof was not on. In an action under the Mas- sachusetts act, it was held that the evidence would not warrant a finding that the superintendent was negli- gent, and that a verdict was properly ordered for the defendant. McCauley v. Norcross, 155 Mass. 584, was very like Carroll v. Willcutt, s^ra, in its leading facts ; but is distinguishable, chiefly, for the reason that the super- intendent ordered the beams, one of which fell and injured the plaintiff, to be put on the floor where they were, and allowed them to remain in a dangerous posi- tion for two or three days. It was held that the jury was warranted in finding negligence on the part of the superintendent. Evidence that the foreman in charge of a railroad roundhouse sent the plaintiff there to make certain repairs upon a locomotive engine, without warning him of the danger arising from " blowing down " the engine, and without notifying the engineer that the plaintiff had been sent, will not warrant a finding that the foreman was negligent, and a verdict should be ordered for the defendant. 1 . l Perry v. Old Colony Ry., 164 Mass. 296 ; 41 N. E. Rep. 289. DIRECTING VERDICT FOR DEFENDANT. 249 168. (c) Negligence of a Person in Charge or Con- trol of any Signal, Switch, Locomotive Engine, or Train upon a Railroad. In Graham v. Boston & Albany Ry., 156 Mass. 4, a freight brakeman was injured, as he alleged, by the negligence of the engineer in charge or control of the train, by starting the train with an unusual jerk, which caused an oil-tank to slip and crush the plaintiff's hand. The plaintiff testified that he did not know whether the train started suddenly or not. A witness for the plaintiff testified that starting with a jerk is something that will happen on any freight train, and that he could not swear whether it was a usual or an unusual jerk. The engineer testified that he did not start with an unusual jerk, and that he did nothing out of the ordinary. There was no evidence that the oil-tank would not slip a little when the train was started in the ordinary way. It was held that this evidence would not warrant a finding that the engineer was negligent, and that a verdict should have been ordered for the defendant. In Birmingham Ry. #. Wilmer, 97 Ala. 165, a brake- man, while in the careful discharge of his duty on top of a freight-car, was thrown off and injured by the sud- den starting of the train on an up grade. The plaintiff contended that the engineer in charge of the locomo- tive was negligent, and he testified that the train was started with an " unusual hard jerk," and it was not disputed that the plaintiff was either knocked off or fell off in consequence of this jerk. In an action under the Alabama act it was held that the statement that the 250 EMPLOYERS' LIABILITY ACTS. train started with an " unusual hard jerk " was admis- sible as a "short-hand rendering" of facts, and that the evidence would warrant a finding of negligence on the part of the engineer, for which the defendant was liable. In the court's opinion, delivered by Mr. Justice McClellan, it is said on page 169 : " Moreover, it is not disputed that plaintiff was knocked off by, or fell off the train in consequence of, this jerk. This was itself some evidence for the jury that the jerk was unusually and negligently severe. It surely cannot be said to be usual or necessary to jerk a train into motion under any circumstances with such force and suddenness as to hurl employees from the top of it while they, as the jury might have found the plaintiff to be, are ordinarily careful and diligent. The testimony of the plaintiff as to the character of the jerk, the fact that he was thrown off or feh 1 off at the time of the jerk, and his further testimony as to what he was doing at the time and the manner of doing it, which the jury might have believed, and, believing, found that he was using due care to maintain his position, but that, not- withstanding this, the jerk was so violent as to inflict the injury complained of, was such evidence of the engineer's negligence as to require the case to go to the jury." In Thyng v. Fitchburg Ry., 156 Mass. 13, a brake- man was killed by the breaking apart of a freight train. The two cars between which the coupling gave way were not the property of the defendant. In this action under the Massachusetts act, the administratrix of the brakeman sought to charge the defendant on the ground that the injury was caused by the negligence DIRECTING VERDICT FOR DEFENDANT. 251 of a person having the charge or control of a train. The only evidence which tended to support this view was that too short a coupling-pin had been used in making up the train. The defendant's evidence showed that in the freight-yard where the train was made up there were always pins of all different lengths, and this was undisputed by the plaintiff. It was held that the evidence did not indicate negligence of a person in charge or control of a train as distinguished from neg- ligence of a fellow-servant, and that a verdict was properly ordered for the defendant. 169. Same. In Hears v. Boston & Maine Ry., 163 Mass. 150, the conductor of a freight train allowed one of the cars to be "kicked" off on to a track, with a descending; o grade without, a brakeman upon it, contrary to the rules of the road. It ran into two freight-cars and killed the plaintiff's husband, while he was inspecting a freight-car in the due performance of his duties. In an action under the act, it was held that the evidence would warrant a finding of negligence on the part of the conductor, for which the defendant was liable, and that the presiding justice erred in ordering a verdict for the defendant. In Tennessee Coal Co. v. Hayes, 97 Ala. 201, the plaintiff, while engaged in loading coal into an empty car, was injured by another car colliding with his car on a down grade. The person in charge of the second car put it in motion by " pinching," and the first car was at rest. There was some evidence that the second car was supplied with a brake, and that after the car was 252 EMPLOYERS' LIABILITY ACTS. started no effort was made to stop it by using the brake. It was held that this evidence would justify a finding of negligence for which the defendant was liable under the act. Another part of the evidence tended to show that there was no brake on the car, and that the person in charge of it, one Ried, and his son, undertook to stop the car by putting obstructions on the track in front of it. It was held that the fact that the car was allowed to escape and run wild, when it might have been controlled and moved in safety, would justify an inference of negligence, on the maxim res ipsa loquitur, and a verdict against the employer under the statute. In the language of the court by Mr. Justice McClellan, on page 207 : " There was, in other words, evidence from which the jury might have found that a car having no brake could with due care have been safely moved and controlled by the Eieds ; and from the fact that this one was not so moved and controlled, but allowed to escape and run wild, it not appearing that everything which due care and diligence required was done to control it, the jury were at liberty to infer, on the maxim res ipsa loquitur, that the requisite care was not used by them." In Birmingham Ry. v. Baylor, 101 Ala. 488; 13 So. Rep. 793, a locomotive fireman was injured by the train running on to a spur track from the main track, through the alleged negligence of the person in charge of the switch in leaving it open. The evidence was, that the switch had been used about thirty minutes before the accident, and the engineer testified that it was properly secured before he left it. The plain- tiff's train was the next one to pass the switch, and he DIRECTING VERDICT FOR DEFENDANT. 253 testified that his train left the main track and went through the switch on to the spur track. It was held in this action under the Alabama statute that there was sufficient evidence that the switch was open to require the submission of the case to the jury. Other cases under this head are cited in the foot- note. 1 1 Mary Lee Coal Co. v. Chambliss, 97 Ala. 171 ; Gibbs v. Great West- ern %., 12 Q. B. D. 208. CHAPTER XIII. DIRECTING A NONSUIT OR VERDICT FOR DEFENDANT (CONTINUED). II. Plaintiff's Contributory Negligence. Section 170. Tests and illustrations in Mas- sachusetts. 171. Alabama rules. Section 172. Employee's death while in dis- charge of duty. Massachu- setts cases. 173. Same. Alabama cases. 170. Tests and Illustrations in Massachusetts. 1 IN an action under the Massachusetts statute, Mr. Justice Knowlton, in delivering the opinion of the court, says : " It does not appear that the plaintiff was doing anything which would generally be deemed careless by prudent men, and we cannot say, as matter of law, that he was not in the exercise of due care." 2 It was held that the case was properly submitted to the jury, and that a verdict for the plaintiff was warranted by the evidence. In Graham v. Boston & Albany Ry., 156 Mass. 4, a freight brakeman had his hand injured by the shifting of an oil-tank in a car whieh he was uncoupling from another car in a train. In an action under the statute 1 Many other cases upon this subject are cited and stated in the chap- ter on Contributory Negligence, 113-122, ante. 2 Mahoney v. New York &c. Ry., 160 Mass. 573, 579. See, also, Gib- son v. Sullivan, 164 Mass. 557. DIRECTING VERDICT FOR DEFENDANT. 255 the plaintiff testified that he had never before seen a car with a space between the oil-tank and the block designed to keep the tank in place; that when he reached over with his right hand to get the coupling- pin he also reached back with his left hand for the grab- iron ; that, not finding it, he took hold of the block, and the engineer started up the train with a jerk, and the oil tank shifted and crushed his hand* against the block. It was held that there was sufficient evidence of due care to go to the jury. In delivering the court's opinion, Mr. Justice Knowlton says, on page 8 : " We are of opinion that the question whether the plaintiff was in the exercise of due care was rightly submitted to the jury. If he had reflected carefully, he might have known that the tank would be likely to slip a little on the car when the train started up with a jerk ; but he testified that he had never before seen a car with a space between the tank and the block which was designed to keep the tank in place, and it is not very strange, when he reached back with his hand ( to feel if there was a grab-iron there,' that he took hold of the block and exposed his fingers to danger without thinking of the consequences." In Thompson v. Boston & Maine Ry., 153 Mass. 391, a brakeman was injured in the act of jumping off a freight train in slow motion, in order to set a brake on another part of the train under the conductor's orders. He swung off between two cars, without looking ahead or taking any other precaution to avoid obstruc- tions near the track, and did not see a pile of rails near the track until it was too late for him to regain his posi- tion of safety. He was obliged to let go, and fell upon 256 EMPLOYERS' LIABILITY ACTS. the pile of rails and was injured. It was held that he was guilty of contributory negligence, and could not recover either under the Employers' Liability Act or at common law, and that it was proper to direct a verdict for the defendant. A workman standing aloft on a pile-driver, engaged in placing a pile in position for driving, is not guilty of contributory negligence if he puts his hand on top of the pile, directly in the line of descent of the ham- mer ; and if his hand is injured by the hammer's fall- ing prematurely, through the negligence of the defend- ant's superintendent in giving an order, he may recover under the statute. 1 The rules of the common law upon this subject in Massachusetts are substantially like those stated above under the Employers' Liability Act. 2 171. Alabama Rules. In McNamara v. Logan, 100 Ala. 187, the plaintiff was crushed between the wall of a mine entry and a car, while he was attempting to sprag the car-wheels on a down grade. It was the first trip that plaintiff had made in the entry, and at the place where he was injured the wall was so close to passing cars as to ren- der spragging dangerous, but plaintiff did not know this fact. One D, who had charge of the drivers, went with the plaintiff to show him where to begin 1 McPhee v. Scully, 163 Mass. 216. 2 Bjbjian v. Woonsocket Rubber Co., 164 Mass. 214 (rubber compound- ing machine) ; Degnan v. Jordan, 164 Mass. 84 (elevator) ; Murphy v. Webster, 151 Mass. 121 ; s. C., 156 Mass. 48 (elevator) ; Taylor v. Carew Manuf. Co., 140 Mass. 150 ; s. c., 143 Mass. 470 (elevator well) ; Law- less v. Connecticut River Ry., 136 Mass. 1 (locomotive). DIRECTING VERDICT FOR DEFENDANT. 257 spragging, which was done on the down grade by run- ning along beside the car. When they reached the grade, D jumped off to sprag the wheels on his side, and the plaintiff jumped off on his side and, while run- ning along beside the car attempting to sprag the wheels, he was crushed between the car and the wall. It was held that the defendant's request for a ruling that the plaintiff could not recover, because he had been guilty of contributory negligence, was properly refused by the presiding justice ; that the question was at least one for the jury to determine ; and that a find- ing for the plaintiff was justified by the evidence. In Richmond &c. Ry. v. Thomason, 99 Ala. 471, a brakeman, while attempting to uncouple two cars while in motion without using a stick, in violation of a known rule of the railroad company, was thrown between the cars and crushed, through the negligence of the loco- motive engineer in suddenly stopping and starting the train. It was held that he was guilty of contributory negligence, and that the jury should have been directed to find for the defendant in an action under the Employers' Liability Act. 1 In Davis v. Western Ry., 104 Ala. 000 ; 18 So. Rep. 173, a switchman had his arm crushed in attempting to uncouple cars in a moving freight train. A foreman to whose order the plaintiff was bound to conform ordered him to " cut off one car." There was no emergency requiring haste. The cars had double deadwoods, and were going backwards, and were pulling on the engine so that the draw was taut. He failed to give the usual signal to the engineer to cause a slack between the cars 1 See, also, Richmond &c. Ry. v. Free, 97 Ala. 231. 258 EMPLOYERS' LIABILITY ACTS. before going between them, and when the slack came he was crushed between the deadwood. He was a man thirty years of age, and had worked on railroads and in switching cars for about nine years, and had worked in defendant's yard for about one year. In an action under the Employers' Liability Act it was held that a verdict was properly ordered for the defendant, upon the ground that the plaintiff had been guilty of con- tributory negligence. In Burgin v. Louisville &c. Ry., 97 Ala. 274, a brakeman jumped off the pilot of a moving engine at an unusual place for employees to alight, at which place there was a low embankment. It was dark at the time, and, although he carried his lighted lantern in one hand, he did not use it to see where he would alight. There was no necessity for his getting off at that place, and the danger was an obvious one if he had stopped to look. It was held that no ordinarily prudent man would have done such an act under the circumstances, that he was guilty of contributory negligence, and that a verdict was properly ordered for the defendant. 1 In Louisville &c. Ry. v. Markee, 103 Ala. 000; 15 So. Rep. 511, a section foreman in charge of a hand-car was killed by a collision with a train of cars on a curve. The rules of the railroad company required curves to be flagged by section foremen, and a constant lookout kept. The deceased, although he knew this rule, failed to flag this curve, and there was evidence that if the curve had been flagged the engineer would have had time and space sufficient to have stopped the train, and 1 See, also, Thompson v. Boston & Maine Ry., 153 Mass. 391 ; Rich- mond &c. Ry. v. Bivins, 103 Ala. 000 ; 15 So. Rep. 515. DIRECTING VERDICT FOR DEFENDANT. 259 thus to have prevented the collision, both the train and the hand-car moving in the same direction. It was held in an action by his administratrix under the stat- ute that he was guilty of contributory negligence. As to what acts on the part of a locomotive engineer in charge of an engine will constitute contributory negligence as matter of law on his part, so as to pre- vent a recovery by him or his personal representative under the Alabama statute, see Louisville &c. Ry. v. Stutts, 104 Ala. 000; 17 So. Rep. 29. 172. Employee's Death while in Discharge of Duty. Massachusetts Cases. In Massachusetts the fact than an employee is killed while in the discharge of his work, without proof as to what he was doing at the time, will not warrant a finding that he was in the exercise of due care, and a verdict should be ordered for the defendant, whether the action is at common law 1 or under the Employers' Liability Act. 2 In Geyette v. Fitchburg Ry., 162 Mass. 549, a freight brakeman on a night train was killed by falling off the train at about four o'clock in the morning of a dark night. The train consisted of two engines, twenty-two cars, and a caboose. The deceased, while on the second engine, stated that he could not see the red light on the rear of the train, and he started out to ascertain if the train had broken apart. As a matter of fact, the train 1 Corcoran v. Boston & Albany Ry., 133 Mass. 507 ; Riley v. Connecti- cut River Ry., 135 Mass. 292. a Tyndale . Old Colony Ry., 156 Mass. 503 ; Irwin v. Alley, 158 Mass. 249 ; Felt v. Boston & Maine Ry., 161 Mass. 311. 260 EMPLOYEES' LIABILITY ACTS. had previously broken apart. He was not seen alive after he left the engine, and his dead body was found in the centre of the track between the rails. There were indications that he struck on his feet between the tracks and was run over by the rear part of the train. In an action under the Employers' Liability Act, it was held that the evidence failed to show that the deceased was in the exercise of due care, and that a verdict for the defendant was properly ordered by the presiding justice. But where the evidence shows that the deceased was in the performance of his duty shortly before the acci- dent, and that the circumstances did not call for any positive act of care on his part in reference to the force which caused the accident, a finding of due care will be justified, and the case should not be withdrawn from the jury. 1 Likewise, when the deceased was performing his duty at the time of the injury, and was injured by a defect or breach of duty which had arisen or occurred sud- denly without his knowledge, the question of his due care is generally one for the jury. Thus, in Gustafsen v. Washburn & Moen Manuf. Co., 153 Mass. 468, an employee was killed by falling into a ditch across a railroad track on the defendant's premises while he was assisting in pulling a loaded car along the track. The ditch had been dug on the morning of the accident, and no warning had been given to the deceased, or to the other employees who had formerly used the track. 1 Thyng v. Fitchburg Ry., 166 Mass. 13, as explained in Geyette v. Fitchburg, 162 Mass. 549, 551 ; Caron v. Boston & Albany Ry., 164 Mass. 23 ; Houlihan v. Connecticut River Ry., 164 Mass. 555. DIRECTING VERDICT FOR DEFENDANT. 261 The operation of pulling the car required the men to lean forward and bend down their heads. There was no direct evidence that the deceased knew of the exist- ence of the ditch. In an action under the Massachu- setts act, it was held that it was a question for the jury to determine whether the deceased was in the exercise of due care at the time of his injury. In Mears v. Boston & Maine Ry., 163 Mass. 150, a car-inspector was instantly killed by being crushed by a freight-car while he was inspecting another car in the course of his duty in the defendant's employ. A car had been " kicked " off from a freight train, and sent down a descending grade on a track without a brake- man, contrary to a rule of the railroad. It struck two box-cars which had been left standing; on the track in O such a position as to cut off from the view of the deceased the approaching car, and he had no notice that a car would be kicked off and sent down the track in that manner. It was held, in this action under the statute by his widow, that there was sufficient evidence of due care on his part to require the submission of the case to the jury, and that the trial judge erred in directing a verdict for the defendant. In McLean v. Chemical Paper Co., 165 Mass. 5, the failure of the deceased to notify the fireman in charge of a steam boiler that he was going into a manhole connected with the boiler was held to be contributory negligence, and to justify a direction to find for the defendant. 262 EMPLOYERS' LIABILITY ACTS. 173. Same. Alabama Cases. In Alabama the burden of proving contributory neg- ligence rests upon the defendant, and when there is no proof of such negligence the plaintiff is entitled to go to the jury upon this question, and a verdict should not be ordered for the defendant because the plaintiff has not shown that he was in the exercise of due care and diligence at the time of the injury. In this respect the Alabama rule differs radically from that of Massachusetts, and the difference is very appar- ent in the class of cases now under consideration. In Bromley v. Birmingham Ry., 95 Ala. 397, a freight brakeman fell off his train while in motion, and was run over and killed. No one saw him fall, and there was no evidence as to the circumstances immediately pre- ceding his death. Shortly before his death, the train separated into two parts, and it then became his duty to at once apply the brakes. He was last seen alive standing on the top of a rear car near the brake, and a few moments afterwards his body was found between the rails, crushed by the car. The car had a large hole in the top, near the brake. The conductor knew of this hole, and it was obvious to any one in the day- light. In an action under the Alabama statute by his administrator, it was held that the plaintiff was entitled to go to the jury, both upon the question of due care and upon the question that there was a defect in the car which caused his death. In delivering the court's opinion, Mr. Justice Coleman says, on page 399 : " If the facts and circumstances proven are such that a jury would be authorized to legally infer that deceased DIRECTING VERDICT FOR DEFENDANT. 263 was engaged in the performance of his duties as brake- man ; that the hole in the top of the box-car was the proximate cause of the injury, and if there was no evi- dence of contributory negligence, then the court was not authorized to give the general charge for the defendant, but under such proof the question should have been submitted to the jury. If, however, the facts proven leave the question as to what caused the injury wholly in conjecture, as distinguished from legal inference, there was nothing to submit to a jury. The burden is upon the plaintiff to make out his case. He must not only aver and prove both an injury and negligence, but he must go further and establish a proximate causal connection between the injury and the negligence." ^ On page 405 the same learned justice says, after reviewing the cases from several other States : " There must be some proof or circumstance to show that the negligence caused the injury, and the presumption that no one will contribute to his own injury cannot take the place of such evidence. It is not necessary that there be an eye-witness, if there are other circumstances which tend to show that the defect in the top of the car caused the fall ; and if these were shown, the gen- eral charge should not have been given. Considering the character of the hole, its location with regard to the location of the brakes, the duty to be performed in setting up brakes, the fact that the brakeman was last seen alive at this point where his duty called him, that he fell and was run over by the cars, taking into consideration these attending circumstances, we cannot say that there was no evidence from which an 264 EMPLOYERS' LIABILITY ACTS. inference might not be legally drawn by a jury that the defect caused the injury. We think, under all the facts proven, that the question should have been referred to the jury." In Nave v. Alabama Great Southern Ry., 96 Ala. 264, the plaintiff's intestate, a boy fifteen years of age, was killed by a south-bound train. He had been stationed at the place of injury to signal north-bound trains to stop, in order to protect a gang of men who were laying steel rails on the track about a mile to the north of him. He was killed about ten o'clock in the morning. The track was straight for half a mile, and he had an unobstructed view of it and of the approach- ing train. No warning of the train's approach was given. The defendant's evidence tended to show that the deceased was asleep, lying with his body extending down into a ditch, and in such a position that he could not be seen until the train was within a few feet of him. In an action under the Alabama act, it was held that the deceased was guilty of contributory negligence, and that a verdict was properly ordered for the de- fendant. The court stated that it had not considered the defendant's evidence in reaching its conclusion. CHAPTER XIV. DIRECTING A NONSUIT OB VERDICT FOR DEFENDANT (CONCLUDED). III. Assumption of Risk, and Vblenti non fit Injuria. A. DEFECTS IN THE WATS, WORKS, MACHINERY, OR PLANT. Section 174. Preliminary observations and subdivisions of chapter. 175. Definitions and illustrations. 176. Continuance in defendant's em- ploy with knowledge of the risk. (1) English rule. Same. Same. Statutory de- 177. Same. 178. Same. fects. 179. Same. (2) Alabama rule. Early cases. 180. Same. Same. Late cases. 181. Same. (3) Massachusetts rule. Absence of guard-rail, or other safety appliance. Section 182. Obvious danger. 183. Same. Ignorance of plaintiff, and failure to warn him of increased danger. 184. Same. Work outside of ordi- nary duty. Finding of due care of plaintiff. 185. Understanding and apprecia- tion of danger. 186. Same. Young and inexperi- enced employees. 187. Assumption of risk by minor employee. B. NEGLIGENCE OF A SUPERINTENDENT. 188. No assumption of risk from superintendent's negligence under the statute. 189. Common-law rule. C. 190. Negligence of one having charge or control of signal, switch, locomotive engine, or train upon a railroad. 266 EMPLOYERS' LIABILITY ACTS. A. DEFECTS IN THE WATS, WORKS, MACHINERY, OR PLANT. 174. Preliminary Observations and Subdivisions of Chapter. IN so far as the defence of assumption of risk relates to defects in the condition of ways, works, machinery, or plant, the Employers' Liability Acts have not changed the common-law rules upon the subject; the common-law liability of the employer is neither enlarged nor lessened by the statutes upon the question of assuming the risk of such defects, but remains precisely the same. In a case of this nature brought under the Massachusetts act, with a count at common law, the court, by Mr. Justice Lathrop, ex- pressly says : " On the question whether the plaintiff took the risk, there is no difference whether the action is brought at common law or under the statute of 1887, ch. 270." l A like principle applies to the maxim volenti nonfit injuria. After reviewing some of the English and Massachu- setts decisions, the Alabama court says, in Birmingham Ky. v. Allen, 99 Ala. 359, 374, per Mr. Justice Cole- man : " It is very clear that, so far as the authorities outside of this State go, the rule declared in the case of Eureka Co. v. Bass, 81 Ala. 200, was not abolished by the Employers' Liability Act. Possibly it was some- what modified, but, as we understand the rule volenti nonfit injuria as applied in the particular cases cited 1 Cassady v. Boston & Albany Ry., 164 Mass. 168, 170. See, also, O'Maley v. South Boston Gas Light Co., 158 Mass. 135 ; Gleason v. New York &c. Ry., 159 Mass. 68 ; Birmingham Ry. v. Allen, 99 Ala. 359 ; Smith v. Baker, [1891] A. C. 325. DIRECTING VERDICT FOR DEFENDANT. 267 from the English and Massachusetts courts, there has been in fact no material modification." With respect, however, to injuries caused by the negligence of a superintendent, or, when the action is against a railroad company, by the negligence of a person having the "charge or control" of certain appliances, the Employers' Liability Acts have either entirely abolished, or at least materially modified, the doctrines of assumption of risk and volenti non fit injuria, and have thereby greatly enlarged the rights of employees and the liabilities of employers. 1 The subject will be discussed under the following subdivisions : A. Defects in the ways, works, machinery, or plant. B. Negligence of a superintendent. C. Negligence of one having the charge or control of a signal, switch, engine, or train upon a railroad. 175. Definitions and Illustrations. Volenti non fit injuria : " That to which a person assents is not esteemed in law an injury." 2 In Smith v. Baker, [1891] A. C. 325 at 355, Lord Watson says : " The maxim volenti non fit injuria, originally borrowed from the civil law, has lost much of its literal significance. A free citizen of Rome who, in concert with another, permitted himself to be sold as a slave in order that he might share in the price, suffered a serious injury, but he was in the strictest sense of the term volens. The same can hardly be said of a slater who is injured by a fall from the roof of a house, 1 Post, 188-190. 2 Broom's Legal Maxims, star page 268. 268 EMPLOYERS' LIABILITY ACTS. although he too may be vohns in the sense of Eng- lish law. In its application to questions between the employer and the employed, the maxim as now used generally imports that the workman had, either ex- pressly or by implication, agreed to take upon himself the risks attendant upon the particular work which he was engaged to perform, and from which he has suffered injury." In O'Maley v. South Boston Gas Light Co., 158 Mass. 135, 136, Mr. Justice Knowlton says : " The doctrine of assumption of the risk of his employment by an employee has usually been con- sidered from the point of view of a contract, express or implied ; but as applied to actions of tort for negli- gence against an employer, it leads up to the broader principle expressed by the maxim volenti non fit in- juria. One who, knowing and appreciating a danger, voluntarily assumes the risk of it, has no just cause of complaint against another who is primarily responsible for the existence of the danger. As between the two, his voluntary assumption of the risk absolves the other from any particular duty to him in that respect, and leaves each to take such chances as exist in the situa- tion, without a right to claim anything from the other. In such a case there is no actionable nejrlisfence on the O O part of him who is primarily responsible for the danger. If there is a failure to do his duty according to a high standard of ethics, there is, as between the parties, no neglect of legal duty." " The doctrine of volenti non fit injuria stands out- side the defence of contributory negligence and is in no way limited by it. In individual instances the two DIRECTING VERDICT FOR DEFENDANT. 269 ideas seem to cover the same ground ; but carelessness is not the same thing as intelligent choice, and the Latin maxim often applies when there has been no carelessness at all." 1 If the undisputed facts show that the plaintiff has assumed the risk, a verdict should be directed for the defendant, even if they also show that he has exercised due care and diligence. 2 In Goodes v. Boston & Albany Ry., 162 Mass. 287, 288, the court, speaking through Mr. Justice Morton, says : " One entering the employment of another as- sumes the obvious risks arising from the nature of the employment, from the manner in which the business is carried on, and from the condition of the ways, works, and machinery, if he is of sufficient capacity to under- stand and appreciate them. It is not necessary to inquire whether this doctrine rests upon contract, or upon the inherent reasonableness and justice of the rule itself, as applied to the relations of master and servant. It has been long and well settled at common law, and it is not contended by the plaintiff that it does not apply to cases arising under the Employers' Liability Act, so called." Nearly all the authorities agree that mere knowledge of the risk on the part of the employee is not suf- ficient to prevent a recovery under the statute. 3 The maxim is not scienti nonfit injuria, but volenti nonfit injuria. The test is not merely whether the injured 1 Thomas v. Quartermaine, 18 Q. B. D. 685, 697, 698, per Bowen, L. J. See, also, McPhee v. Scully, 163 Mass. 216, 217. a Mellor v. Merchants' Manuf. Co., 150 Mass. 362 ; Stuart v. West End Ry., 163 Mass. 391. 8 Smith v. Baker, [1891] A. C. 325, 337 ; Thomas v. Quartermaine, 18 Q. B. D. 685, 696 ; Yarmouth v. France, 19 Q. B. D. 647 ; Mellor v. 270 EMPLOYERS' LIABILITY ACTS. employee knew of the risk, but whether the circum- stances are such as necessarily to lead to the conclusion that the whole risk was voluntarily incurred by him. If not, the question should be submitted to the jury. 1 The common-law rule is of like nature. 2 176. Continuance in Defendant's Employ with Knowledge of the Risk. (1) English Rule. Great difference of opinion has developed upon the question whether or not the plaintiff's continuance in the employ of the defendant, with knowledge of the defect or negligence which ultimately causes his injury, will, as matter of law, prevent a recovery under the Employers' Liability Act. Does he thereby assume the risk of injury; or does he consent to or voluntarily incur the risk so as to preclude a recovery as matter of law under the maxim volenti non Jit injuria ? Or, on the other hand, is such continuance with knowledge of the risk merely one of the facts bearing upon the right of action which should be submitted to the jury under proper instructions? May the jury find on all the evi- dence that the plaintiff continued at work, not because he consented to incur the risk, but because the necessity of his pecuniary condition constrained him to remain ? Merchants' Manuf. Co., 150 Mass. 362, 364. Contra, Birmingham Ry. v. Allen, 99 Ala. 359 (overruling Mobile &c. Ry. v. Holborn, 84 Ala. 133). 1 Cases cited above. 3 Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155 ; Mahoney v. Dore, 155 Mass. 513 ; Ford v. Fitchburg Ry., 110 Mass. 240 ; Hough v. Railway Co., 100 U. S. 213 ; Hawley v. Northern Central Ry., 82 N. Y. 370 ; Indianapolis &c. Ry. . Ott, 11 Ind. App. 564 ; 38 N. E. Rep. 842 ; Dorsey v. Phillips Co., 42 Wis. 583 ; Flynn v. Kansas City &c. Ry., 78 Mo. 195. Contra, Eureka Co. v. Bass, 81 Ala. 200. DIRECTING VERDICT FOR DEFENDANT. 271 In Smith v. Baker, [1891] A. C. 325, the leading case under the English act of 1880, these questions were fully considered by the House of Lords. In that case the defendants were railway contractors, and had taken a contract to open a railway cut. The plaintiff was employed by them to drill holes in the rock. While he was engaged in the operation of drilling, a stone fell out of a crane above him and caused the inju- ries complained of. The crane had been worked in the same way over his head for several months before his injury, and he understood the risk of continuing to work. There was no one to warn him when the crane was coming towards him, and it was operated by other employees of the defendant. The county court refused to nonsuit the plaintiff, on the ground requested by the defendant that the plaintiff had assumed the risk and could not recover under the doctrine of volenti non fit injuria. The case was submitted to the jury, and a verdict for the plaintiff was returned. It was held that the question was one of fact and not of law ; that by continuing in the service with knowledge and under- standing of the risk, the plaintiff had not thereby assumed the risk in the sense of preventing a recovery as matter of law ; that the maxim volenti non Jit injuria did not apply; and that the verdict was warranted by the evidence. Considerable stress was laid upon the fact that there was no inherent danger in the plaintiff's work of drill- ing, and that his injury had been caused by a defect in the machinery used in another department over which he had no control. On page 357, referring to cases in which the work is 272 EMPLOYEES' LIABILITY ACTS. not intrinsically dangerous, but is rendered dangerous by some defect which it was the duty of the employer to remedy, Lord Watson says : "The risk may arise from a defect in a machine, which the servant has engaged to work, of such a nature that his personal danger and consequent injury must be produced by his own act. If he clearly fore- saw the likelihood of such a result, and notwithstand- ing continued to work, I think that, according to the authorities, he ought to be regarded as volens. The case may be very different when there is no inherent peril in the work performed by the servant, and the risk to which he is exposed arises from a defect in the machinery used in another department over which he has no control. The present case belongs to that cate- gory. There was no intrinsic danger in the operation of drilling in which the plaintiff was engaged; the peril from which he suffered was not evoked by his act, but was brought into contact with him by workmen employed in a different operation." The clause contained in the various acts to the effect that no recovery can be had if the employee knew of the defect or negligence which caused his injury and failed to give information thereof within a reasonable time, was deemed by Lord Watson to show that the legislature did not intend that an employee, by merely continuing in the service with knowledge of the defect or negligence, should thereby lose the right to recover damages which he would otherwise have possessed. 1 Lord Halsbury, L. C., in his opinion in this case says, on page 336 : " For my own part, I think that a per- i Smith v. Baker, [1891] A. C. 325, 355, 356. DIRECTING VERDICT FOR DEFENDANT. 273 son who relies on the maxim must show a consent to the particular thing done. Of course I do not mean to deny that a consent to the particular thing may be inferred from the course of conduct, as well as proved by express conduct ; but if I were to apply my proposi- tion to the particular facts of this case, I do not believe that the plaintiff ever did or would have consented to the particular act done under the particular circum- stances. He would have said : i I cannot look out for myself at present. You are employing me in a form of employment in which I have not the ordinary means of looking out for myself ; I must attend to my drill. If you will not give me warning when the stone is going to be slung, at all events let me look out for myself, and do not place me under a crane which is lifting heavy stones over my head when you keep my attention fixed upon an operation which prevents me looking out for myself.' ' Again, on page 338, Lord Halsbury says: "As I have intimated before, I do not deny that a particular consent may be inferred from a general course of con- duct. Every sailor who mounts the rigging of a ship knows and appreciates the risk he is encountering. The act is his own, and he cannot be said not to con- sent to the thing which he himself is doing. And examples might be indefinitely multiplied where the essential cause of the risk is the act of the complaining plaintiff himself, and where, therefore, the application of the maxim volenti non fit injuria is completely jus- tified." 274 EMPLOYERS' LIABILITY ACTS. 177. Same. Same. In Yarmouth v. France, 19 Q. B. D. 647, the plain- tiff, while in the employ of the defendant as a driver, was kicked by a vicious horse. He knew the horse to be vicious, and had complained of it many times to the defendant's foreman. The foreman told him to go on driving the horse, and that if any accident happened to the plaintiff the employer would be responsible. In an action under the English Employers' Liability Act, it was held by a majority of the court (Lopes, L. J., dis- senting) that the fact that the plaintiff remained in the defendant's employ, with knowledge and appreciation of the risk of injury from the horse, did not show as mat- ter of law that he had voluntarily incurred the risk, so as to prevent a recovery under the maxim volenti non fit injuria ; that the question was one of fact for the jury to determine; and that the jury would have been justified in finding for the plaintiff. Lindley, L. J., says on page 661 : "If nothing more is proved than that the workman saw danger, reported it, but, on being told to go on, went on as before, in order to avoid dismissal, a jury may in my opinion properly find that he had not agreed to take the risk, and had not acted voluntarily in the sense of having taken the risk upon himself. Fear of dismissal, rather than voluntary action, might properly be inferred." In the much-discussed case of Thomas v. Quarter- maine, 18 Q. B. D. 685, the plaintiff was scalded by fall- ing into a cooling vat in the defendant's brewery, while he was pulling a board from under an adjacent boiling vat. He was employed in the cooling room, in which DIRECTING VERDICT FOR DEFENDANT. 275 there was a cooling vat and a boiling vat, between a part of which the passageway was only three feet wide. The cooling vat had a rim of sixteen inches above the passage, but it was not fenced or railed in. A board which was used as a lid to the cooling vat being under the boiling vat, the plaintiff took hold of it to pull it out : the board stuck ; the plaintiff gave a harder pull and the board came out suddenly, causing the plaintiff to fall back into the cooling vat. He had worked in the room for many months, and knew its condition as well as the defendant. In an action under the Em- ployers' Liability Act for failure to fence the vat, it was held by Bowen and Fry, L. JJ. (Lord Esher, M. R., dissenting), that the maxim volenti non fit injuria applied to the case, and that therefore there was no sufficient evidence of negligence to warrant a finding for the plaintiff, and the defendant was entitled to judgment. In the opinion of Bowen, L. J., after stat- ing that mere knowledge of the danger by the plaintiff is not a conclusive defence in itself, he adds on page 697 : " But when it is a knowledge under circumstances that leave no inference open but one, viz., that the risk has been voluntarily encountered, the defence seems to me complete." If Thomas v. Quartermaine, 18 Q. B. D. 685, decides that the mere fact that the plaintiff continues to work on the defendant's premises after he knows their defec- tive condition is conclusive evidence of his assumption of the risk, and precludes a recovery under the act, although there has been a breach of duty on the defend- ant's part, the decision can scarcely be reconciled with Smith v. Baker, [1891] A. C. 325, and others. It 276 EMPLOYEES' LIABILITY ACTS. seems possible, however, to reconcile it with Smith v. Baker on the ground that there was no negligence on the part of the defendant. Bowen, L. J., states, near the conclusion of his opinion, on page 699 : " There was, therefore, in my opinion, no evidence of negli- gence on which the county court judge could act, and therefore the appeal should be dismissed with costs." And on pages 702, 703, Fry, L. J., says : " For the reasons I have given I think that there was no negli- gence of the defendant from which the defect arose, or which was the cause of its not being discovered or rem- edied ; and on this ground I think the defendant is not liable. . . . Further, I think that on the whole of this case there was no evidence to support the finding of the county court judge that there was a defect in the ways due to the negligence of the defendant." Other parts of the opinions, however, strongly sup- port the view adopted by the reporter in his head-note, namely, that there was no sufficient evidence to warrant a finding of defendant's negligence, because the doctrine of volenti non Jit injuria applied to the case, thus confounding two matters which were held in Smith v. Baker to be separate and distinct defences. If there was not sufficient evidence of the defendant's negli- gence, that ended the case in his favor, and it was unnecessary to consider the other defence founded upon the maxim. In Baddeley v. Granville, 19 Q. B. D. 423, it was decided that where the injury is caused by the breach of an express statutory duty on the defendant's part, as failure to keep a man at the mouth of a coal-pit, the doctrine of volenti non Jit injuria does not apply to actions under the Employers' Liability Act. DIRECTING VERDICT FOR DEFENDANT. 277 Weblin v. Ballard, 17 Q. B. D. 122, goes too far in holding that the English act has entirely abolished the common-law defence of assumption of risk for an injury caused by a defect in the condition of the ways, works, etc., though the ruling that it has abolished the defence of common employment, as applied to the per- sons mentioned in the act, has been sustained by the later decisions. 178. Same. Same. Statutory Defects. The doctrines of assumption of risk and volenti non fit injuria have no application to the case of a breach of a specific statutory duty imposed upon the employer, and the fact that the plaintiff continues in the defend- ant's employ with knowledge of the breach and with- out objection will not prevent his recovery under the Employers' Liability Act for an injury caused by such breach. In Baddeley v. Granville, 19 Q. B. D. 423, the Coal Mines Regulation Act, 1872, required a banks- man to be kept at the mouth of a coal-pit while the miners were going up or down the shaft. The plain- tiff's husband was killed while coming out of the shaft at night, through an improper signal given by a boy to the engineer in charge of the cage, no banksman being present as required by the statute. In an action under the Employers' Liability Act, 1880, it was held that the fact that the deceased knew that no banksman was employed by the defendant at night, and continued to work at the mine, did not constitute a defence to the action. Wills, J., says on pages 426, 427 : " An obli- gation imposed by statute ought to be capable of enforcement with respect to all future dealings between 278 EMPLOYERS' LIABILITY ACTS. parties affected by it. As to the result of past breaches of the obligation, people may come to what agreements they like ; but as to future breaches of it, there ought to be no encouragement given to the making of an agreement between A and B that B shall be at liberty to break the law which has been passed for the protec- tion of A. Such an agreement might be illegal, though I do not hold as a matter of law that it would be so. But it seems to me that if the supposed agreement between the deceased and the defendant, in consequence of which the principle of volenti non Jit injuria is sought to be applied, comes to this, that the master employs the servant on the terms that the latter shall waive the breach by the master of an obligation imposed on him by statute, and shall connive at his disregard of the statutory obligation imposed on him for the benefit of others as well as of himself, such an agreement would be in violation of public policy and ought not to be listened to. On that ground there is much to be said in favor of the opinion expressed in the Court of Appeal that, where there has been a breach by a defend- ant of a statutory obligation, the maxim volenti non Jit injuria has no application." 1 179. Same. (2) Alabama Rule. Early Cases. In Alabama the early cases went to one extreme in holding that knowledge and appreciation of the defect or danger was in no case an assumption of the risk, and that the maxim volenti non fit injuria did not apply to actions under the Employers' Liability Act where the 1 Referring to Thomas v. Quartermaine, 18 Q. B. D. 685. See, also, Blamires v. Lancashire &c. Ry., L. R. 8 Ex. 283. DIRECTING VERDICT FOR DEFENDANT. 279 employer was aware of the defect and negligently failed to remedy it. 1 The only case in which the maxim was held to apply was when the employee himself created the defect, or consented to its creation by a third person. 2 In Highland Avenue &c. Ry. v. Walters, 91 Ala. 435, a yard-master and conductor was killed by being thrown from the foot-board of an engine on which he was standing, caused, as the plaintiff alleged, by a pile of coal which was left so near the track as to obstruct the passage of the engine. One count was for a defect in the condition of the ways of the railroad, and another was for the negligence of defendant's superintendent in allowing the coal to remain there. The coal belonged to one Peebles, who testified that it was deposited there by permission of the deceased. The chief defence was contributory negligence. In delivering the court's opinion, Mr. Justice Clop- ton says, on pages 441, 442 : " In railroading there are known perils incident to the service, no matter how well constructed the plant, works, and machinery may be, or how watchful and diligent the control and man- agement of the trains. To these the statute has no application, and of these the employee takes the risk. When, however, an employee sustains injury in the cases and under the conditions specified in the statute, it oper- ates to take from the employer the defence that the employee impliedly contracts to assume the known and ordinary risks incident to his employment. To this extent, and to this extent only, is the common-law rule abrogated. By the provisions of the statute, the em- 1 Mobile &c. Ry. v. Holborn, 84 Ala. 133. 8 Highland Avenue Ry. v. Walters, 91 Ala. 435. 280 EMPLOYERS' LIABILITY ACTS. ployer is answerable in damages when the defect in the condition of the ways, works, machinery, or plant arose from, or had not been discovered or remedied owing to the negligence of the employer, or person to whom is entrusted the duty of seeing that they are in proper con- dition ; and is exempted from liability when, not being aware of the defect or negligence, the employee has failed to give information thereof within a reasonable time after discovering it. Under this construction, con- tributory negligence cannot be imputed to an employee from continuance in the service after merely discovering a defect or negligence, though it may increase the risk of injury. Something more is requisite, concurring failure to give information thereof within a reasonable time after knowledge of the defect or negligence, unless the employee knows that the employer or superior is already aware of it." 180. Same. Same. Late Cases. But these early cases have since been expressly over- ruled, and the Alabama court has gone to the opposite extreme, and now holds that an employee who contin- ues in the service with knowledge of a defect in the condition of the ways, works, or machinery, though such defect exists in the ways, works, or machinery of another department over which he has no control, assumes the risk of injury therefrom, after the lapse of a reasonable time for remedying the defect, and that the doctrine of volenti non fit injuria applies to pre- vent a recovery by him, and was not changed by the Employers' Liability Act. 1 1 Birmingham Ry. v. Allen, 99 Ala. 359. DIRECTING VERDICT FOR DEFENDANT. 281 In this case of Birmingham Ry. v. Allen, 99 Ala. 359, a conductor in the employ of the defendant rail- road was thrown from his train while on duty by the sudden turn or jerk of the train caused by its running on to a side track from the main track because the switch had been left open. The defect in the switching apparatus was the want of a lock or other sufficient means of fastening the switch. The plaintiff had known of this defect for a year prior to his injury. It was held that the want of a switch-lock was a "defect" within the meaning of the statute, but that the plain- tiff, by continuing in the defendant's employ for more than a reasonable time with knowledge of the defect, had assumed the risk of injury incident to such defect ; that the maxim volenti nonfit injuria applied, and that the plaintiff could not recover as matter of law. In this case the court claims to be following the English rule. Smith v. Baker, [1891] A. C. 325, is not cited, however, and the decision seems to be contrary to that in Smith v. Baker. The qualifying clause of the statute, providing in substance that an employee shall not recover under the act if he knew of the defect or negligence causing his injury and failed to give notice thereof, was held by the court not to prevent the application of the maxim to the facts of the case, and the reasoning of fiowen, L. J., in Thomas v. Quartermaine, 18 Q. B. D. 685, on/ this point, was said to be "convincing." (Page 374.) Referring to this provision, the court states on pages 374, 375, by Mr. Justice Coleman : " It would seem that the legislature, by a statutory enactment, recog- nized the application of the maxim of volenti nonfit 282 EMPLOYEES' LIABILITY ACTS. injuria as declared by the court, and, out of abundant caution lest the statute might be construed to give a cause of action absolutely when the defect or negli- gence specified in the statute was the cause of injury, although the risk of such defect and negligence was voluntarily and knowingly assumed by the employee, added the proviso above referred to." In the later cases of Louisville &c. Ry. v. Banks, 103 Ala. 000 ; 16 So. Rep. 547, and Louisville &c. Ry. v. Stutts, 104 Ala. 000 ; 17 So. Rep. 29, the doctrine of Birmingham Ry. v. Allen, 99 Ala. 359, was reaffirmed, and seems now to be the settled rule in Alabama. In the case of Louisville &c. Ry. v. Banks, supra, a freight brakeman was knocked off the top of a car by a low bridge and killed. The maintenance of such a bridge was held to be prima facie negligence on the part of the railroad company, for which it would have been liable under the statute to one not familiar with the bridge; but inasmuch as the deceased had been warned about the bridge, and had passed under it about one hundred times in the course of his four months' employment, it was held that he had assumed the risk of injury, and that a verdict should have been ordered for the defendant. Mr. Justice Haralson says, on page 549, in delivering the court's opinion : "Another prin- ciple which may be considered as finally settled is that if an employee knows of the existence of dangers aris- ing from defects in ways, works, and machinery of the company, and continues in its service after the lapse of a reasonable time for the defects to be remedied or removed, he assumes this additional risk, though not incident to his original employment even." DIRECTING VERDICT FOR DEFENDANT. 283 At common law the employee was deemed to assume the known and ordinary risks incident to his employ- ment. For an injury caused by such dangers he could not recover damages from his employer. The Alabama Employers' Liability Act abrogates this rule of the common law in part, but not to the extent of making the employer liable for an injury caused by a known danger against which human skill and caution cannot provide. The statute gives the employee no remedy in the latter case ; for there is no negligence of the employer, nor of any person for whose negligence the statute makes him liable. " The scope and operation of the statute is to make the employer answerable in damages for an injury caused by his own negligence, or the negligence of a co-em- ployee of the same or superior grade, in the enumerated classes of cases." l 181. Same. (3) Massachusetts Rule. Absence of Guard-rail, or other Safety Appliance. In Massachusetts the court has been careful to decide each case on its particular facts, and has refrained from announcing any broad or general rules upon this diffi- cult question. The effect of continuing to work with knowledge of the absence of certain safety appliances has, however, been several times decided by this court- The Massachusetts statute of 1895, ch. 362, relates to railroad corporations and certain defects and dangers in their rolling-stock. Upon this question of assuming the risk of injury by continuing to work with know- ledge of the risk, the statute declares in section 7 : 1 Mobile &c. Ry. v. George, 94 Ala. 199, 218, per Clopton, J. 284: EMPLOYERS' LIABILITY ACTS. " Any employee of such corporation who may he in- jured by any locomotive, car, or train in use contrary to the provision of this act, shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employment of such corporation after the unlawful use of such locomotive, car, or train has been brought to his knowledge." In general it may be stated that where the absence of the guard-rail, etc., is known to the employee, and its danger appreciated by him, it constitutes an obvious danger, and, if he is injured thereby, the employer is not liable under the act. By continuing to work on such defective ways, works, or machinery, without giv- ing information thereof, the employee assumes the risk resulting from the absence of the guard or rail; the doctrine of volenti non