iiO.!»<^^''^' POHTUND CEWEHT C.Oi!ir.\«& THE LIBRARY OF THE UNIVERSITY OE CALIEORNIA LOS ANGELES SCHOOL OF LAW # «#■ COY ^yJ^I^ETT INJURIES TO INTERSTATE EMPLOYEES ON RAILROADS A TREATISE ON THE FEDERAL EMPLOYERS ' LIABILITY ACT OF 1908, AS AMENDED, WITH AN APPENDIX, CONTAINING A COPY OF THE ACT, TOGETHER WITH ALL FEDERAL STATUTES AND ORDERS OF THE INTERSTATE COMMERCE COMMISSION FOR THE SAFETY OF RAIL- ROAD EMPLOYEES By MAURICE G. ROBERTS Of the Missouri Bar CHICAGO CALLAGHAN AND COMPANY 1915 COPYRIGHT 1915 BY CALLAGHAN & COMPANY r DEDICATION To JUDGE O. M. SPENCER WHOSE DISTINGUISHED AND HONORABLE CAREER AS A STATE ' ATTORNEY, JUDGE AND COUNSELOR HAS PLACED HIM IN THE FRONT RANK OP MISSOURI'S POREMOST LAWYERS, THE FOLLOWING HUMBLE EFFORT IS MOST RESPECTFULLY INSCRIBED BY ONE WHO HAS ENJOYED HIS FRIENDLY INTEREST AND HAS PROFITED BY HIS SANE COUNSEL ?35SB9 PREFACE The enactment of the Federal Employers' Liabil- ity Act of 1908 by Congress and the controlling de- cisions of the United States Supreme Court deliv- ered during the years 1912, 1913 and 1914, con- struing and applying the statute, have revolutionized the law of liability of all railroad companies in the United States to their employes engaged in inter- state commerce. Prior to the exercise by Congress of its dormant power under the interstate commerce clause of the United States Constitution by the passage of this statute which governs exclu- sively the liability of all railroad companies for all injuries or deaths occurring under the conditions prescribed in the act, that is, while the carrier is engaged and the injured servant is employed by it in such commerce, state laws where the casualties occurred determined the rights of the one and the liability of the other. Now one unifonn law con- trols throughout the United States in determining the rights of interstate employes of common car- riers by railroad when injured and their dependent beneficiaries in cases of death. As at least 80 per cent of all railroad employes in the United States are, under recent decisions of the United States Supreme Court, engaged in interstate commerce within the purview of this statute, the sweeping VI PREFACE changes by and the far reacliing effect of this law in superseding state control over the subject matter of personal injuries to employes on railroads, may be readily seen. Owing to the doubt and uncertainty as to the con- stitutionality of this law, prior to the decision of the national Supreme Court in the Mondou case, decided Januarj^ 15, 1912, in which the validity of the act was sustained in all its parts, but few suits had been brought under the federal statute. Since that time the courts have been flooded mth actions under this statute and up to March 1, 1915, the United States Supreme Court, alone, notwithstand- ing its limited power on writ of error, had delivered opinions in twenty-nine cases construing and apply- ing this act. During the same period between 500 and 600 cases under this act have been decided by state appellate courts, federal district courts, and federal circuit courts of appeals, so that now the majority of the many and perplexing questions in the application and construction of this statute have been solved. A text-book, therefore, dealing with the many and various problems confronting the courts by reason of the enactment of this law and citing and analyz- ing these hundreds of cases, many of them recently decided, by national and state courts, the author believes, should be of assistance to his fellow-law- yers and the courts and should be of permanent value. This duty, the author has attempted to ful- fill during spare moments while actively engaged in the practice of law. For the convenience of the profession parallel ref- PREFACE VU erences have been inserted to N. C. C. A. (where most of the cases cited in the work will be found either reported in full or thoroughly abstracted) and to L. E. A., American Annotated Cases, and the Lawyers' Edition of the United States Supreme Court Reports. References to the Federal Statutes Annotated have also been inserted in addition to the official citations. Richmond, Mo., April, 1915. M. G. Roberts. TABLE OF CONTENTS CHAPTER I. SCOPE, PURPOSE, VALIDITY AND EFFECT OF FEDERAL ACT. PAGE. § 1. Scope of the Federal Employers' Liability Act 1 § 2. Purpose of the Act 2 g 3. First Federal Employers ' Liability Act Invalid 4 § 4. Second Federal Employers' Liability Act Valid 5 § 5. Extent of Power Exercised by Congress in Passing the Federal Act '^ § 6. Amendments of 1910 10 § 7. Effect Upon State Laws H § 8, Decisions of National Courts Construing Act Control 15 § 9, Laws of State Control as to Procedure 16 CHAPTER n. NEGLIGENCE UNDER THE FEDERAL ACT. § 10. The Statutory Provision 18 § 11. Two Branches of Negligence Under First Section 19 § 12. Negligence Criterion of Liability Under National Statute. 19 § 13. Negligence Must Be Proximate Cause of Injury 23 § 14. Actionable Negligence Must Have Natural Relation to Em- ployment • • • 24 § 15. Meaning of the Phrase ' ' In Whole or in Part " 30 § 16. Recovery Cannot Be Defeated by Calling Plaintiff's Act Proximate Cause When Defendant's Negligence Is Part of Causation 31 § 17. Casualties Due to Sole Negligence of Employe, No Recov- ery Under Federal Act 32 § 18. In Actions Under Federal Act Prosecuted in State Courts, Decisions of National Courts Control in Determining Negligence — Contrary Rulings 34 § 19, Negligence of Human Agencies Not Limited to Fellow Servants as Construed Under Common Law 43 is X INJURIES TO INTERSTATE EMPLOYES ON RAILROADS PAGE. § 20. Statute Covers Negligent Act of Intrastate Employes and Defects in Instrumentalities Used Solely in Intrastate Commerce 44 § 21. Negligence Need Not Be Proven When Violation of Federal Safety Appliance Act Is Cause of Injury 46 § 22. Applicability of Doctrine of Ees Ipsa Loquitur Under Fed- eral Act — Conflicting Kulings 48 § 23. Cases Under Fedefal Act in Which the Facts Were Held to Show Actionable Negligence 50 § 24. Cases Under Federal Act in Which the Facts Were Held Not to Show Actionable Negligence 60 § 25, Wilful Wrongs Not Within Terms of the Act 65 CHAPTEE III. EMPLOYES INCLUDED WITHIN THE FEDEEAL ACT. 26. Statute Includes Only Employes Injured While Engaged in Interstate Commerce 67 27. Servants Engaged in Both Kinds of Commerce 68 28. Train Men on Interstate Trains Are Employed in Inter- state Commerce 69 29. When Trainmen Are Not Engaged in Interstate Commerce . 70 30. Bridge Workers and Carpenters Employed in Interstate Commerce, When 72 31. When Car Eepairers and Eoundhouse Employes Are En- gaged in Interstate Commerce 77 32. When Car and Engine Eepairers Are Not Engaged in In- terstate Commerce 80 33. Test in Determining When Switching Crews Are Engaged in Interstate Commerce 83 34. Switching Crews Engaged in Interstate Commerce 86 35. Switching Cars Containing Intrastate Shipments Into or Out of Interstate Trains — Conflicting Eulings 88 36. Section Men and Track Laborers 93 37. Employes Preparing or Moving Materials or Instrumentali- ties to Be Used on Interstate Trains 94 38. Employes Preparing Interstate Trains for Movement 97 39. Employes on Premises of Eailroad Company Going to or from Work 99 40. Employes Engaged in the Original Construction of Instru- mentalities for Future Use in Interstate Commerce Not Within the Act 103 TABLE OF CONTENTS XI PAGE. 41. Eepairing or Rebuilding Instrumentalities Used in Inter- state Commerce 106 42. Yard Clerks Engaged in Interstate Commerce, "When 107 43. Pullman Employes 108 44. Agents of Express Companies 109 45. Miscellaneous Employes 109 46. Instances Where Employes Were Engaged in Interstate Commerce but Erroneously Held to. Have Been Engaged in Intrastate Commerce 110 47. Instances Where Employes Were Engaged Exclusively in Intrastate Commerce but Erroneously Held by the Courts to Have Been Engaged in Interstate Commerce 114 48. Employes Presumed to Be Engaged in Intrastate Com- merce 116 49. Intrastate Employes Injured by Negligence of Interstate Employes or Instrumentalities of Interstate Commerce Have No Remedy Under Federal Act 116 50. Decisions Construing Federal Safety Act Not Always Applicable in Construing Employers' Liability Act 117 51. When Questions of Employment in Interstate Commerce Should Be Submitted to Jury 119 CHAPTER IV. RAILROADS INCLUDED WITHIN THE FEDERAL ACT. 52. General Rule as to When Railroad Companies Are Engaged in Interstate and Foreign Commerce 121 53. Railroads Within the Act Defined 122 54. Railroad Must Be a Common Carrier — Tap Lines and Log- ging Roads 123 55. Proof That Injured Servant Is Employed in Interstate Commerce Sufficient to Show That the Railroad Is So Engaged 125 56. Receivers of Railroad Corporations Included Within the Act 126 57. Lessor of Railroad Engaged in Interstate Commerce Liable, When 127 58. Interurban Electric Railroads Included Within the Act. . . 130 59. Railroads Carrying Passengers and No Freight 130 60. Ships or Vessels Not a Part of a Railroad System 131 61. Street Railroads Not Within the Terms of the National Act 131 Xll INJURIES TO INTERSTATE EMPLOYES ON RAILROADS PAGE. § 62, Hauling Empty Cars or Company Property Over State Line 133 § 63. Instances Showing Engagement by Railroad Companies in Interstate Commerce 133 § 64. Beginning and Ending of Interstate Character of Ship- ments 134 § 65. Intermediate Carrier with Line Wholly in One State Par- ticipating in Movement of Interstate Shipments 135 § 66. Shipments Between Two Points in Same State Passing through Another State in Transit 135 § 67. Eailroad Lines Confined Within Limits of a Single State Engaged in Interstate Commerce When Transporting Through Shipments to or from Another State 136 § 68. When Eeshipment from Point of Delivery Changes Inter- state Character of Traffic 138 § 69. When Eeshipment from Point of Delivery Does Not Change Interstate Character of Traffic 141 § 70. All Carriers by Eailroad and All Their Employes Within Territories Included 144 CHAPTEE V. BENEFICIARIES AND DAMAGES IN DEATH CASES UNDER FEDERAL ACT. § 71. Beneficiaries Under the Federal Statute 146 § 72. Existence of Beneficiaries Named in Statute Jurisdictional. 146 § 73. Parents Not Entitled to Damages When There Is a Widow or Children 147 § 74. No Eemedy Under the Federal Act Unless There Are De- pendent Eelatives Named in the Statute 148 § 75. Measure of Damages in Cases of Death Under the Federal Act 150 § 76. Damages for the Estate of Decedent Not Recoverable 150 § 77. No Presumption of Damage to Widow and ChUd 151 § 78. Loss of Society, Companionship and Wounded Affections Not Elements of Damages 152 § 79. Statutory Action Is Not for the Equal Benefit of Each of the Surviving Beneficiaries 153 § 80. Cases Under Federal Act in Which Courts Decided Question of Sufficiency of Proof to Establish Dependency of Beneficiaries in Second and Third Classes 154 § 81. Loss of Care, Counsel, Training and Education by Minors Proper Elements of Damages 158 TABLE OP CONTENTS Xlll PAGE. 82. Pecuniary Loss Not Dependent Upon Any Legal Liability of the Employe to the Beneficiaries 160 83. Alien Parents Residing Abroad May Recover Under Federal Act 161 84. No Recovery for Pain and Suffering of Deceased Prior to 1910 Amendments 162 85. No Recovery Under (Ajnendments 1910) When. Death Is Instantaneous .s^t^'%.*^ 163 86. Decisions of National Courts on Measure ot Damages Con- trol .i . 165 87. Errorless Instructions on Measure of Damages Under Fed- eral Act . • • •-> r^^' • 165 88. Erroneous Instructions on Measure of Damages Under Federal Act 170 89. Beneficiaries May Recover for the Suffering of Deceased as WeU as for His Death .,., . . . .,... 174 90. Death Must Be Result of Negligence Before Beneficiaries Can Recover Under Section 1, but Not Under Section 9. 176 91. Loss of Prospective Gifts — Contributions During Lifetime of Deceased Employe 177 92. The Term ' ' Next of Kin ' ' Construed to Mean Illegitimate Children — Conflicting Decisions 180 93. Cases Declaring the True Measure of Damages and Ap- proved by the United States Supreme Court 181 94. Distribution of Amoimt Recovered Controlled by Federal Statute and Not State Laws 188 95. Damages Due Each Beneficiary Must Be Apportioned in the Verdict 189 CHAPTER VI. ASSUMPTION OF RISK UNDEK FEDERAL ACT. 96. The Statutory Provision 190 97. Assumption of Risk a Defense Under the Federal Act... 191 98. Doctrine Applied as Defined in Decisions of National Courts 193 99. Concrete Instruction Must Be Given, If Requested 197 100. When Assumption of Risk Is Not a Defense — Federal Safe- ty Appliance Act 197 101. When Assiunption of Risk Is No Defense When There Is a Plurality of Causes 199 102. Violations of Rules Not Assumption of Risk 200 XIV INJURIES TO INTERSTATE EMPLOYES ON RAILROADS PAGE. § 103. Distinction Between Assumption of Risk and Contributory Negligence 200 § 104. Cases in Which Interstate Employes Were Held Not to Have Assumed the Eisk 201 § 105. Cases in Which Interstate Employes Were Held to Have Assimied the Eisk 206 § 106. Defense of Assumption of Eisk Must Be Pleaded to Be Available 212 § 107. Confusing Assumption of Eisk with Contributory Negli- gence in Jury Instructions Under Federal Act 213 § 108. Assumption of Eisk Eliminated in Actions for Violation of Hours of Service Act 215 CHAPTER VII. CONTEIBUTOEY NEGLIGENCE UNDEE FEDEEAL ACT. § 109. The Statutory Provision 216 § 110. Eight of Eecovery Under Federal Act Not Barred by Contributory Negligence 217 § 111. When Contributory Negligence of Employe Does Not Di- minish Damages — Federal Safety Appliance Act 218 § 112. Contributory Negligence Defined 218 § 113. How Damages Apportioned When Employe Is Guilty of Contributory Negligence 219 § 114. Apportionment of Damages Under Federal Act Different from Georgia Statute 220 §115. Employe's Contributory Negligence to Eeduce Damages Must Proximately Contribute to Injury 220 § 116. Gross Negligence of Plaintiff and Slight Negligence of De- fendant Cannot Defeat Eecovery 221 § 117. When Defendant's Act Is No Part of Causation, Plaintiff Cannot Eecover 222 § 118. Erroneous Instructions on Contributory Negligence Under the Federal Act 223 § 119. Whether Contributory Negligence Must Be Pleaded, De- termined by State Law 226 CHAPTER VTIL CONTRACTS FORBIDDEN BY FEDERAL ACT. § 120. The Statutory Provision 228 § 121. Statute Prohibiting Carriers from Evading Liability by Contracts or Regulations, Valid 228 TABLE OP CONTENTS XV PAGE. § 122. Statute Applies to Existing as Well as Future Contracts. . 229 § 123. Acceptance of Benefits from Employer No Bar to Suit Against Joint Tort-Feasor 230 CHAPTER IX. JURISDICTION OF STATE AND FEDERAL COURTS. 124. Suits May Be Brought in Federal Courts 232 125. Actions May Also Be Brought in State Courts Under Fed- eral Act 233 126. Causes Instituted in State Courts Not Removable to Fed- eral Courts 233 127. Removability When Petition States Cause of Action Under State Law in One Count and Under Federal Law in An- other Count 234 ! 128. Action Removable When Petition Does Not State Cause of Action Under Federal Act Although Intended to Be Under That Statute 236 i 129. Statute of Limitation 237 t 130. Judgment of Highest State Court in Action Under Federal Act May Be Reviewed by United States Supreme Court, When 238 ! 131. Record Must Show Right Under Federal Laws Was Spe- cifically Set Up and Denied by State Court 239 I 132. Contention That There Is or Is Not Sufficient Evidence to Show LiabUity, Will Support Writ of Error 239 5 133. Power to Review Does Not Extend to Questions Merely Incidental and Non-Federal in Character 241 ^ 134. Ruling of State Court That Federal Question Was Sufficiently Raised Binding Upon United States Supreme Court. . . . 242 § 135. Federal Questions to Support Writ of Error to United States Supreme Court, Need Not Be Raised by the Plead- ings 243 136. Pleading Federal Act and Submitting Case to Jury Under State Law, No Denial of Federal Right 244 137. When Petition Not Stating a Good Cause of Action Under Federal Act Raises a Federal Question 245 138. Claim That Verdict Is Excessive Not Reviewable by Writ of Error 245 xvi INJURIES TO INTERSTATE EMPLOYES ON RAILROADS CHAPTER X. PARTIES, PLAINTIFFS AND DEFENDANTS, IN STJITS UNDER FEDERAL ACT. PAGE. § 139. Personal Representative Only Can Bring Suit in Case of Death 246 § 140. Widow Cannot Maintain Suit in Individual Capacity Al- though She May Be Sole Beneficiary 247 § 141. Want of Legal Capacity in Widow to Sue Cannot Be Waived 248 § 142, Ancillary Administrator May Sue Under the Federal Act. 250 § 143. Personal Representative Alone May Revive Suit Commenced by Employe in His Lifetime 251 § 144. Existence of Other Property Not Necessary to Secure Appointment of Personal Representative 251 § 145. Agents and Servants Whose Negligence Caused Injury, Not Liable Under the Federal Act 252 § 146. Lessor of a Railroad May Be Made Party Defendant 252 § 147. Personal Representative Appointed in One State Cannot Sue in Another State Without Consent 253 CHAPTER XI. PLEADINGS UNDER THE FEDERAL ACT. 148. Plaintiff 's Petition Must Plead Facts Showing That Injury or Death Occurred Under Conditions Described in Fed- eral Act 254 149. If Petition States Cause of Action Solely Under Federal Law, There Can Be No Recovery Under State Law — Contrary Rulings 257 150. Petition Stating a Cause of Action Under State Law, Re- covery Permitted Under Federal Act When Omitted Allegations Are Supplied by the Answer 260 [ 151. Recovery Under Petition Stating Cause of Action Under State Law Though Evidence Shows a Case Under Fed- eral Act, Harmless Error on Appeal, When 263 t 152. Pleading Cause of Action Under State Law in One Count and Under Federal Act in Another Count, Allowed 268 i 153. Petition Need Not Specifically Refer to the Act If Facts Showing Liability Thereunder Are Pleaded 270 ( 154. State Law as to Sufficiency of Pleading Governs 271 i 155. Allegations as to Engagement in Interstate Commerce Held Sufficient 271 TABLE OF CONTENTS XVU PAGE. 156. Allegation to Show Cause of Action Under the Federal Act Held Not Sufficient 273 157. In Cases of Death Petition Must Allege Survival of Beneficiaries Named in Statute 274 158. Petition Must Allege Pecuniary Loss to Beneficiaries 275 159. In Suits Under State Laws, Applicability of Federal Act May Be Raised by Answer 277 160. Where Petition Is Under State Law and Evidence Shows Case Under Federal Statute, Plaintiff Cannot Recover. 277 161. Defendant in Suit Under State Law Must Specifically Plead Federal Act to Defeat Recovery 280 162. When Amendment of Petition Permissible After Two- year Period of Limitation 281 163. When Amendments After Limitation Period Not Allowed. 285 CHAPTER XII. EVIDENCE UNDER FEDERAL ACT. § 164. Rules of Evidence Governed by State Law 288 § 165. Law of Forum Determines Whether Widow or Other Bene- ficiaries May Testify 289 § 166. State Law Not Applicable in Passing on Demurrer to the Evidence 289 § 167. Record EAddence of Interstate Shipments — Statutory Pro- vision and Order of Interstate Commerce Commission. . 289 § 168. Method of Proving When Train and Switching Crews Are Engaged in Interstate Commerce 290 § 169. Method of Proving When Other Railroad Employes Are Engaged in Interstate Commerce 293 § 170. Evidence Held Sufficient to Show That Train Was Carry- ing Interstate Commerce 293 § 171. Evidence Held Not Sufficient to Show That Train Was Carrying Interstate Commerce 295 CHLAPTER Xm. MATTERS OF PRACTICE UNDER FEDERAL ACT. 172. At What Stage of Proceedings, Motion to Elect Should Be Sustained — Practical Considerations 300 173. Motions to Elect Under Iowa Statute in Actions Under Federal Act 302 XVLH INJURIES TO INTERSTATE EMPLOYES ON RAILROADS PAGE. § 174. Instances Where Motion to Elect Should Have Been Sus- tained Before Trial 304 § 175. Widow Suing in Her Own Name in One Suit and as Ad- ministratrix in Another, Cannot Be Compelled to Elect. 307 § 176. Verdicts by Less Than Twelve Jurors, When Permissible Under State Law, Valid in Actions Under Federal Statute 312 § 177. When Suit Under State Law Is Res Adjudicata 314 § 178. Errors in Actions Under Federal Act Held Harmless on Appeal 317 § 179. Plaintiflf in Actions Under Federal Act May Sue as a Poor Person in United States Courts, When 318 APPENDIX. A. Federal Employers ' Liability Act of 1906 321 B. Federal Employers' Liability Act of 1908 323 C. Federal Employers' Liability Act, Amendments of 1910 326 D. Eeport of Judiciary Committee of House on Federal Employ- ers ' Liability Act of 1908 328 E. Eeport of Judiciary Committee of House on Amendments of 1910 to Federal Employer's Liability Act of 1908 342 F. Eeport of Judiciary Committee of Senate on Amendments of 1910 to Federal Employers' Liability Act of 1908 348 Amendment as to Jurisdiction — Place Where Suit May Be Brought 352 G. Federal Locomotive Ash Pan Act 374 H. Federal Hours of Service Act 376 I. Federal Boiler Inspection Act 379 J. Federal Safety Appliance Acts 386 Amendment of 1903 to Federal Safety Appliance Act of 1893 388 Amendment of 1910 to Federal Safety Appliance Act of 1893 390 K. Order of the Interstate Commerce Commission Fixing Mini- mum Percentage of Power Brakes 394 L. Order of the Interstate Commerce Commission F ixin g Stand- ard Height of Draw Bars 395 M. Order of the Interstate Commerce Commission Eelative to Safety Appliances 397 Box and Other House Cars 398 Hopper Cars and High- Side Gondolas with Fixed Ends. 407 Drop-End High-Side Gondola Cars 409 TABLE OF CONTENTS XIX PAGE. Fixed-End Low-Side Gondola and Low-Side Hopper Cars. 410 Drop-End Low-Side Gondola Cars 412 Flat Cars 414 Tank-Cars with Side-Platforms 415 Tank Cars Without Side-Sills and Tank Cars with Short Side-SiUs and End-Platforms 417 Tank Cars Without End-Sills 421 Caboose Cars with Platforms 424 Caboose Cars Without Platforms 428 Passenger-Train Cars with Wide Vestibules 432 Passenger-Train Cars with Open End-Platforms 433 Passenger-Train Cars Without End-Platforms 435 Steam Locomotives Used in Road Service 438 Steam Locomotives Used in Switching Service 441 Specifications Common to All Steam Locomotives 444 N. Order of the Interstate Commerce Commission Extending Time for Compliance with Order Relating to Safety Appliances . . 447 O. Boiler Inspection — Amendatory Act 450 TABLE OF CASES [references are to pages] Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 228, 44 L. Ed. 136 23b Alexander v. Pennsylvania E. Co., 48 Ohio St. 623 35 Allen V. Eailway, 45 Md. 41 35 Allen V. Tuscarora V. E. Co., 229 Pa. 97, 30 L. E. A. (N. S.) 1096n, 140 Am. St. Eep. 714 287 American Pub. Co. v. Fisher, 166 U. S. 464, 41 L. Ed. 1079 312 American E. Co. v. Birch, 224 U. S. 547, 56 L. Ed. 879, 5 Porto Eico Fed. Eep. 273 12, 150, 247, 281 American E. Co. v. Didricksen, 227 U. S. 145, 57 L. Ed. 456, 3 N. C. C. A. 809n, 831n 149, 152, 179, 247 Anderson v. Chicago, B. & Q. E. Co., 35 Neb. 95 178 Anderson v. Louisville & N. E. Co., 127 C. C. A. 277, 210 Fed. 689, 6 N. C. C. A. 439n 251 Armbruster v. Chicago, E. I. & P. Ey. Co., — Iowa — , 6 N. C. C. A. 195n, 147 N. W. 337 16, 97, 307 Armour Packing Co. v. United States, 209 U. S. 56, 52 L. Ed. 681. 230 Atchison, T. & S. F. E. Co. v. Brown, 26 Kans. 443 178 Atchison, T. & S. F. E. Co. v. Fajardo, 74 Kans. 314, 6 L. E. A. (N. S.) 681n 161 Atchison, T. & S. F. E. Co. v. Mills, 49 Tex. Civ. App. 349 5, 144 Atchison, T. & S. F. E. Co. v. Pitts, — Okla. — , 145 Pac. 1148 ... 120 Atchison, T. & S. F. E. Co. v. Tack, — Tex. Civ. App. — , 130 S. W. 596 217 Atchison, T. & S. F. E. Co. v. Victoria, F. & W. E. Co., 234 U. S. 1, 58 L. Ed. 1185 124 Atchison, T. & S. F. E. Co. v. Wilson, 1 C. C. A. 25, 48 Fed. 57. . 182 Atkinson v. BuUard, — Ga. App. — , 6 N. C. C. A. 80n, 183n, 80 S. E. 220 16, 119, 269, 302 Atlanta, K. & N. E. Co. v. Smith, 1 Ga. App. 162 282 Atlantic C. L. E. Co. v. Jones, 9 Ala. App, 499, 6 N. C. C. A. 26n, 80n, 192n 110, 255 Atlantic C. L. E. Co. v. Eeaves, 125 C. C. A. 599, 208 Fed. 141 256 Atlantic C. L. E. Co. v. Eiverside Mills, 219 U. S. 186, 55 L. Ed. 167, 31 L. E. A. (N. S.) 7n 230 Atlantic C. L. E. Co. v. United States, 94 C. C. A. 35, 168 Fed. 175 47 Atteberry v. PoweU, 29 Mo. 429, 77 Am. Dec. 579 226 XXU INJURIES TO INTERSTATE EMPLOYES ON RAILROADS [keferences are to pages] Baer Bros. Mer. Co. v. Denver & E. G. E. Co., 233 U. S. 479, 58 L. Ed. 1055 138, 142 Baltimore & O. Ey. Co. v. Darr, 124 C. C, A. 565, 204 Fed. 751, 6 N. C. C. A. 203n, 197 Fed. 665 78 Baltimore & O. E. Co. v. Evans, 110 C. C. A. 156, 188 Fed. 6 253 Baltimore & O. E. Co. v. Gawinske, 116 C. C. A. 579, 197 Fed. 31. 229 Baltimore & O. E. Co. v. Whitacre, — Md. — , 92 Atl. 1060 95 Bank of Garrison v. MaUey, 103 Tex. 562 34 Bankson v. Illinois C. E. Co., 196 Fed. 171 16, 269, 303 Barker v. Kansas City, M. & O. Ey. Co., 88 Kans. 767, 43 L. E. A. (N. S.) 1121 96, 133, 192, 213, 296, 297 Barlow v. Lehigh V. E. Co., 158 App. Div. (N. Y.) 768, 6 N. C. C. A. 191n 87, 96 Barron v. Baltimore, 7 Pet. (U. S.) 243, 8 L. Ed. 464 313 Bay V. Merrill & Eing Lumber Co., 211 Fed. 717 123, 124 Beck V. Dowell, 40 Mo. App. 71 226 Beckman Lumber Co. v. Acme Harvester Co., 215 Mo. 221 34 Behrens v. lUinois C. E. Co., 192 Fed. 581, 3 N. C. C. A. 781n, 783. 116 Bennett v. Lehigh V. E. Co., 197 Fed. 578 103 Bitondo v. New York, C. & H. E. Co., 163 App. Div. (N. Y.) 823, 6 N. C. C. A. 230n 158, 281 BLxler v. Pennsylvania E. Co., 201 Fed. 553 282 Black v. Jackson, 177 U. S. 349, 44 L. Ed. 801 312 Blake v. Midland Ey. Co., 18 Q. B. (Eng.) 93, 109 182 Blizzard v. Applegate, 61 Ind. 368 226 Board of Trustees v. Cuppett, 52 Ohio St. 567 34 Boldt V. New York, C. E. Co., 18 N. Y. 432 102 Bombolis v. Minneapolis & St. L. E. Co., — Minn. — , 150 N. W. 385 57, 161 Bouchard v. Central V. E. Co., 87 Vt. 399, 6 N. C. C. A. 78n, 81n 16, 269 Bower v. Chicago & N. W. R. Co., — Nebr. — , 6 N. C. C. A. 213n, 148 N. W. 145 58, 99, 191, 294 Bowers v. Southern Ey. Co., 10 Ga. App. 367, 1 N. C. C. A. 841n 31 Bradbury v. Chicago, E. I. & P. Ey. Co., 149 Iowa 51, 40 L. E. A. (N. S.) 684n 81, 116, 277, 281 Bramlett v. Southern Ey. Co., — S. C. — , 6 N. C. C. A. 75n, 83n, 82 S. E. 501 98 Brewster v. Chicago & N. "W. Ey. Co., 114 Iowa 144, 89 Am. St. Eep. 348 35 TABLE OF CASES XXlll [references are to pages] Brmkmeier v. Missouri P. Ey Co., 224 U. S. 268, 56 L. Ed. 758, 3 N. C. C. A. 795, 81 Kans. 101 16, 47, 256 Brooks V. Southern P. Co., 148 Fed. 986 4 Burnett v. Atlantic C. L. E. Co., 163 N. C. 186, 6 N. C. C. A. 103, 104n 16, 228, 238 Cain V. Southern Ey. Co., 199 Fed. 211 218 Campbell v. Canadian N. Ey. Co., — Minn. — , 4 N. C. C. A. 216n, 217n, 144 N. Y. 772 127 Capital Trust Co. v. Great Northern Ey. Co., — Minn. — , 149 N. W. 14 164 Carolina, C. & 0. Ey. Co. v. Shewalter, 128 Tenn. 363, 6 N. C. C. A. 445n 164 Carr v. New York, etc. E. Co., 77 Misc. (N. Y) 346 91 Carter v. Kansas City S. Ey. Co., — Tex. Civ. App. — , 4 N. C. C. A. 634n, 155 S. W. 638 200, 206 Central V. E. Co. v. Bethune, 124 C. C. A. 528, 206 Fed. 868. .192, 213 Chaflin v. Houseman, 93 U. S. 130, 23 L. Ed. 833 314 Chambers v. Baltimore & O. E. Co., 207 U. S. 142, 52 L. Ed. 143. . 239 Chandler v. St. Louis & S. E. E. Co., 127 Mo. App. 34 35 Charleston & W. C. E. Co. v. Anchors, 10 Ga. 329 94, 111 Charleston & W. C. E. Co. v. Brown, 13 Ga. App. 744, 79 S. E. 932 15, 20, 38, 54, 217 Cherokee & P. Coal & Min. Co. v. Limb, 47 Kan. 469 178 Chesapeake & O. Ey. Co. v. Dwyer's Adm'x, 157 Ky. 590, 6 N. C. C. A. 449n 149, 151, 275 Chesapeake & O. Ey. Co. v. Kelly 's Adm 'x, — Ky, — , 171 S, W, 185 271, 313 Chesapeake & O. Ey. Co. v. Proffit, 218 Fed. (C. C. A.) 23 205 Chesapeake & O. Ey. Co. v. Walker's Adm'x, 159 Ky. 237 192 Chicago & A. Ey. Co. v. Shannon, 43 111. 338 178 Chicago & N. W, E. Co. v, O'Brien, 67 C. C. A. 421, 132 Fed. 593 49 Chicago, B. & Q. E. Co. v. McGuire, 219 U. S. 549, 55 L. Ed. 328 229 Chicago, B. & Q. E. Co. v. United States, 220 U. S. 559, 55 L. Ed. 582 47 Chicago, M. & St. P. Ey. Co. v. Iowa, 233 U. S. 334, 58 L. Ed. 988 141 Chicago, E. I. & P. Ey. Co. v. Brown, 229 U. S. 317, 57 L. Ed. 1204, 3 N. C. C. A. 826, 107 C. C. A. 300, 185 Fed. 80, 183 Fed. 80 48 Chicago, E. I. & P. E. Co. v. Hardwick Farmers' Elevator Co., 226 U. S. 426, 57 L. Ed. 284, 46 L. E. A. (N. S.) 203 134 XXIV INJURIES TO INTERSTATE EMPLOYES ON RAILROADS [refekences are to pages] Chicago, R. I. & P. Ry. Co. v. McBee, — Okla. — , 145 Pac. 331 81, 116, 255, 256, 281, 298 Chicago, R. I. & P. Ry. Co. v. Rogers, — Tex. Civ. App. — , 150 S. W. 281 281 Choctaw, Etc. Ry. Co. v. Hoolaway, 191 U. S. 334, 48 L. Ed. 207. . 31 Choctaw, O. & G. R. Co. v. McEade, 191 U. S. 64, 48 L. Ed. 96, 15 Am. Neg. Rep. 280 193, 204, 213 Cincinnati, N. O. & T. P. Ry. Co. v. Bonham, — Tenn. — , 171 S. W. 71 248, 249, 281 Cincinnati, N. O. & T. P. Ry. Co. v. Goode, 155 Ky. 153, 173 S. W. 329 70, 282, 283 Cincinnati, N. O. & T. P. Ry. Co. v. Hill, — Ky. — , 170 S. W. 599 65 Cincinnati, N. O. & T. P. Ry. Co. v. Slade, 216 U. S. 78, 54 L. Ed. 390 239 Cincinnati, N. O. & T. P. Ry. Co. v. Wheeler, — Ky. — , 169 S. W. 690 62 Cincinnati, N. O. & T. P. Ry Co. v. Wilson 's Adm 'r, 157 Ky. 460, 171 S. W. 430 24, 181 Clark V. Southern P. Co., 175 Fed. 122 271 Coe V. Errol, 116 U. S. 517, 525, 29 L. Ed. 715 124 Colasurdo v. Central R. Co. of New Jersey, 180 Fed. 832, 113 C. C. A. 379, 192 Fed. 901. .45, 46, 56, 93, 113, 117, 126, 206, 217 Collins V. Pennsylvania R. Co., 148 N. Y. Supp. 777 189 Colorado, C. & I. Co. v. Lamb, 6 Colo. App. 255 178 Copper River & N. W. Ry. Co. v. Heney, 211 Fed. (C. C. A.) 459 55, 127 Corbett v. Boston & M. R, R., — Mass. — , 107 N. E. 60 308, 311 Cound V. Atchison, T. & S. F. Ry. Co., 173 Fed. 527 271 Cousins V. Illinois C. R. Co., — Minn. — , 6 N-. C. C. A. 182, 148 N. W. 58 110 Crandall v. Chicago & G. W. R. Co., — Minn. — , 150 N. W. 165 295 CresweU v. Grand Lodge, K. P., 225 U. S. 246, 56 L. Ed. 1074 241 Creteau v. Chicago & N. W. Ry. Co., 113 Minn. 418 257 Daniel Ball Case, 10 Wall. (U. S.) 557, 19 L. Ed. 999 124 Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616 313 Davis V. Guarnieri, 45 Ohio St. 470, 4 Am. St. Rep. 554 182 Deal V. Coal & Coke Ry. Co., 215 Fed. 285 110 Deardorff v. Chicago, B. & Q. R. Co., — Mo. — , 172 S. W. 333. . 136 DeAtley v. Chesapeake & O. Ry. Co., 201 Fed. 591 12, 19, 43 Delevan v. Bates, 1 Mich. 97 226, 234 Delk V. St. Louis & S. F. R. Co., 220 U. S. 580, 55 L. Ed. 590, 4 N. C. C. A. 488n 134 TABLE OF CASES XXV [references are to pages] Deni v. Pennsylvania E. Co., 181 Pa. 525, 59 Am. St. Rep. 676. . . 161 Devine v. Chicago, E. I. & P. R. Co., — lU. — , 107 N. E. 595.. 165, 291 Dewberry v. Southern E. Co., 175 Fed. 307 347 Dickinson v. West End St. E. Co., 177 Mass. 365, 52 L. E. A. 110 24 Diebold v. Sharpe, 19 Ind. App. 474 178 Dillon V. Great N. Ey. Co., 38 Mont. 485 164 Dishon v. Cincinnati, N. O. & T. P. Ey. Co., 126 Fed. (C. C. A.) 194 101 Dollon V. S. E. Ey. Co., 4 C. B. N. S. (Eng.) 303 179 Dooley v. Seaboard A. L. Ey. Co., 163 N. C. 454, 6 N. C. C. A. 440n, 442n, 45 2n 35, 149, 151, 153, 165, 174, 179 Dungan v. St. Louis & S. F. R. Co., 178 Mo. App. 164, 6 N. C. C. A. 438, 439n 248, 281 Eastern Ey. Co. of New Mexico v. Ellis, — Tex. Civ. App. — , 153 S. W. 701 247, 252 Eau Claire Nat. Bank v. Jackman, 204 U. S. 522, 51 L. Ed. 596 . . 242 Edwards v. Elliott, 21 Wall. (U. S.) 532, 557, 22 L. Ed. 487 313 Eilis V. Louisville, H. & St. L. Ey. Co., 155 Ky. 745, 6 N. C. C. A. 103n, 543n 33, 218, 222 El Paso & N. E. R. Co. v. Gutierrez, 215 U. S. 87, 54 L. Ed. 106, 102 Tex. 378 5, 17, 144, 239 EiweU V. Hicks, 180 111. App. 554 34 Emanuel v. Georgia & F. Ry. Co., — Ga. — , 83 S. E. 230 194 Eng V. Southern P. Ry. Co., 210 Fed. 92, 6 N. C. C. A. 78n, 79n, 200n 106, 234 Erie R. Co. v. Welsh, — Ohio St. — , 6 N. C. C. A. 77n, 188n, 105 N. E. 190 81, 116, 277, 281 Evans v. Detroit, G. H. & M. Ry. Co., — Mich. — , 148 N. W. 490 58 Ewald v. Chicago & N. W. E. Co., 70 Wis. 420, 5 Am. St. Eep. 178. 102 Ex Parte Atlantic C. L. R. Co., — Ala. — , 67 So. 256 24, 255 Farley v. New York, N. H. & H. R. Co., 87 Conn. 328, 6 N. C. C. A. 444n, 445n, 448n, 452n 192, 207 Ferebee v. Norfolk S. Ry. Co., — N. C. — , 4 N. C. C. A. 220n, 79 S. E. 685 53 Fernette v. Pere Marquette R. Co., 175 Mich. 653, 6 N. C. C. A. 231n, 144 N. W. 834 68, 256, 264 First Employers' Liability Cases, 207 U. S. 463, 52 L. Ed. 297 4, 68, 85 First National Bank v. Turner, 154 Ind. 497 34 Fish V. Chicago, R. I. & P. Ry. Co., — Mo. — , 172 S. W. 340. . 16, 193 Flanders v. Georgia and F. Ry. Co., — Fla. —, 67 So. 68 12 Reming v, Norfolk S. Ry. Co., 160 N. C. 196, 6 N. C. C. A. 78n, 229n 16, 218, 227, 271, 277, 281 XXVI INJURIES TO INTERSTATE EMPLOYES ON RAILROADS [references are to pages] Fletcher v. Baltimore & O. E. Co., 168 U. S. 135, 42 L. Ed. 411, 6 App. Cas. (D. C.) 385 103 Fogerty v. Northern P., — Wash. — , 133 Pac. 609. .160, 173, 189, 218 Fordyse v. McCants, 51 Ark. 509, 4 L. E. A. 296, 14 Am. St. Eep. 69 178 Fort Worth & D. C. Ey. Co. v. Copeland, — Tex. Civ. App. — , 6 N. C. C. A. 93n, 164 S. W. 857 192 Fort Worth & D. C. Ey. Co. v. Staleup, — Tex. Civ. App. — , 167 S. W. 279 56, 256, 272 Fort Worth B. Ey. Co. v. Ferryman, — Tex. Civ. App. — , 6 N. C. C. A, 204n, 158 S. W. 1181 124 Franklin v. S. E. E. Co., 4 Hurl. & N. (Eng.) 511 179 Freeman v. Powell, — Tex. Civ. App. — , 144 S. W. 1033. .95, 193, 213 Fritz V. Western U. T. Co., 25 Utah 263 178 Fulgham v. Midland V. E. Co., 167 Fed. 660 11, 251 Gaar, S. & Co. v. Shannon, 223 U. S. 468, 56 L. Ed. 510 239 Gaines v. Detroit, G. H. & M. Ey. Co., — Mich. — , 6 N. C. C. A. 202n, 148 N. W. 397 80, 255, 256, 257, 278 Galveston, H. & S. A. Ey. v. Chojnacky, — Tex. Civ. App. — , 163 S. W. 1011 110 Garrett v. Louisville & N. E. Co., — U. S. — , 35 Sup. Ct. 32, 117 C. C. A. 109, 197 Fed. 715, 3 N. C. C. A. 769, 4 N. C. C. A. 925n 147, 151, 157, 163, 270, 275 Gee V. Lehigh V. E. Co., 148 N. Y. Supp. 882 12 Gibson v. Billingham & N. Ey. Co., 213 Fed. 488 17, 271, 313 Gibson etc. E. Co. v. Sharpe, 50 Colo. 321 178 GUa V. G. & N. E. Co. v. HaU, 232 U. S. 94, 58 L. Ed. 521, 1 N. C. C. A. 362, 4 N. C. C. A. 231n 193, 197, 203, 205 Gilmore v. Sapp, 100 HI. 297 34 Glenn v. Cincinnati, N. O. & T. P. Ey. Co., 157 Ky. 453. .192, 193, 211 Goen V. Baltimore & O. S. W. E. Co., 179 111. App. 566 148 Grand T. W. Ey. Co. v. Lindsay, 233 U. S. 42, 58 L. Ed. 838, 6 N. C. C. A. 90, 91n, Ann. Cas. 1914C 168n. .32, 217, 218, 222, 270, 272 Granger v. Pennsylvania E. Co., — N. J. — , 86 Atl. 264 45, 112 Gray v. Chicago & N. W. Ey. Co., 153 Wis. 636, 4 N. C. C. A. 225n 102, 112, 281 Gray v. Louisville & N. E. Co., 197 Fed. 874, 4 N. C. C. A. 484n. . 123 Gray v. Southern Ey. Co., — N. C. — , 83 S. E. 489 35 Greenwood v. King, 82 Nebr. 17 178 Grober v. Duluth, S. S. & A. Ey. Co., — Wis. — , 150 N, W. 489. . 25 Grow V. Oregon S. L. E. Co., — Utah — , 138 Pac. 398, 6 N. C. C. A. 83n, 199n 99, 104, 107 Guana v. Southern P. Co., — Ariz, — , 6 N. C. C. A. 96n, 139 Pac. 782 192 TABLE OF CASES XXVll [references are to pages] Gulf, C. & S. F. Ey. Co. v. Biezley, — Tex. Civ. App. — , 153 S. W. 651 252 Gulf, C. & S. F. Ky. Co. v. Lester, — Tex. Civ. App. — , 149 S. W. 841 247 Gulf, C. & S. F. Ey. Co. v. McGinnis, 228 U. S. 173, 57 L. Ed. 785, 3 N. C. C. A. 806, 4 N. C. C. A. 926n, — Tex. Civ. App. — , 147 S. W. 1188 12, 149, 152, 153, 179, 189, 213, 274, 275 Gulf, C. & S. F. Ey. Co. v. Texas, 204 U. S. 403, 51 L. Ed. 540. . . 139 Hackett v. Chicago, I. & L. E. Co., 170 111. App. 140 272 Halestine v. Central Nat. Bank, 155 Mo. 66 34 Hall V. Hall, 41 Wash. 186 34 Hall V. Louisville & N. E. Co., 157 Fed. 464, 98 C. C. A. 664, 174 Fed. 1021 285 Hall V. Southern E. Co., 146 N. C. 345 253 HaU V. Vandalia E. Co., 169 lU. App. 12 88, 172 Hamilton v. Kansas City S. E. Co., 123 Mo. App. 619 49 Hanley v. Kansas City S. E. Co., 187 U. S. 617, 47 L. Ed. 333. . . 136 Hardwick v. Wabash E. Co., 181 Mo. App. 156 15, 35, 53, 93, 165, 188, 317 Hearst v. St. Louis I. M. & S. Ey. Co., — Mo. App. — , 173 S. W. 86 69, 247 Heimbach v. Lehigh V. E. Co., 197 Fed. 579 81 Helm V. Cincinnati, N. O. & T. P. Ey. Co., 156 Ky. 240, 6 N. C. C. A. 83n, 84n 20, 24, 35, 192, 209 Hench v. Pennsylvania E. Co., — Pa. — , 91 Atl. 1056 69, 299 Hillebrand v. Standard Biscuit Co., 139 Cal. 233 178 Hobbs v. Great N. Ey. Co., — Wash. — , 142 Pac. 20, 6 N. C. C. A. 84n, 90n 24 Hogarty v. Philadelphia E. Ey. Co., 245 Pa. 443 229, 264 Holmes v. Pennsylvania E. Co., 220 Pa. 189, 123 Am. St. Eep. 685. 178 Hopper V. Denver & E. G. E. Co., 84 C. C. A. 21, 155 Fed. 273, 6 N. C. C. A. 442n 178, 179 Horton v. Oregon, W. E. & N. Co., 72 Wash. 503, 3 N. C. C. A. 784, 47 L. E. A. (N. S.) 8n 15, 95 Horton v. Seaboard A. L. Ey. Co., 157 N. C. 146 221 Houston & T. C. Ey. Co. v. Cowser, 57 Tex. 293 178 Howard v. Illinois C. Ey. Co., 148 Fed. 997 4 Hoxie V. New York, N. H. & H. E. Co., 82 Conn. 352, 17 Ann. Cas. 324 11, 233 Hudkins v. Bush, 69 W. Va. 194, Ann. Cas. 1913A 533n 126 Hulac V. Chicago & N. W. E. Co., 194 Fed. 747 234 Hurst V. Chicago, E. I. & P. E. Co., 49 Iowa 76 24 Hurst V. Detroit City Ey. Co., 84 Mich. 539, 545, 3 N. C. C. A. 778. 182 Huxtado V. California, 110 U. S. 517, 28 L. Ed. 232 313 XXVIU INJURIES TO INTERSTATE EINTPLOYES ON RAILROADS [references are to pages] Illinois C. E. Co. v. Barron, 5 Wall. (U. S.) 90, 105, 106, 18 L. Ed. 591 182 Illinois C. E. Co. v. Behrens, 233 U. S. 473, 58 L. Ed. 1051, 6. N. C. C. A. 189n, Ann. Cas. 1914C 163n 71, 83, 85, 88, 111, 115 Illinois C. E. Co. v. Doherty's Adm'r, 153 Ky. 363, 6 N. C. C. A. 75n, 440n, 444n, 47 L. E. A. (N. S.) 31n 12, 146, 149, 153, 158, 275 Illinois C. E. Co. v. Kentucky, 218 U. S. 551, 54 L. Ed. 1147 239 Illinois C. E. Co. v. Nelson, 212 Fed. (C. C. A.) 69 265 Illinois C. E. Co. v. Nelson, 203 Fed. 956, 122 C. C. A. 258 97, 281 Illinois C. E. Co. v. Porter, 207 Fed. 311, 6 N. C. C. A. 98n, 205n 97, 221, 275 Interstate Commerce Commission v. Cincinnati, N. O. & T. P. Ey. Co., 162 U. S. 184, 40 L. Ed. 935 135 Irvin V. Southern Ey. Co., — N. C. — , 80 S. E. 78 157, 165, 289 •Jackson v. Chicago, St. P. & M. E. Co., 210 Fed. 495, 6 N. C. C. A. 200n 104 Jackson, etc.. Iron Works v. Hurlbut, 158 N. Y. 34, 70 Am. St. Eep. 432 124 Johnson v. Great N. E. Co., 102 C. C. A. 89, 178 Fed. 643, 1 N. C. C. A. 853n, 861n 80 Johnson v. Southern P. Co., 196 U. S. 1, 49 L. Ed. 363, 3 N. C. C. A. 784, 802n, 829n 135 Jones V. Charleston & W. C. Ey. Co., — S. C. — , 6 K C. C. A. 439n, 443n, 82 S. E. 415 157 Jones V. Chesapeake & O. Ey. Co., 149 Ky. 566 93, 257 Kansas City S. E. Co. v. C. H. Albers Commission Co., 223 U. S. 573, 56 L. Ed. 556 239, 241 Kansas City S. E. Co. v. Cook, 100 Ark. 467 133, 234, 270, 271 Kansas City S. E. Co. v. Leslie, — Ark. — , 6 N. C. C. A. 446n, 447n, 453n, 454n, 167 S. W. 92 17, 288 Kelly V. Chesapeake & 0. E. Co., 201 Fed. 602 234, 252, 270 KeUy V. Great Northern Ey., 152 Fed. 211 4 Kellyville Coal Co. v. Petraytis, 195 111. 215, 88 Am. St. Eep. 193. 161 Kennard v. Louisiana, 92 U. S. 480, 23 L. Ed. 478 313 Kenney v. Seaboard A. L. Ey. Co., — N. C. — , 82 S. E. 968 180 Knowles v. New York, N. H. & H. E. Co., 150 N. Y. Supp. 99 83 Koeeher v. Minneapolis, St. P. & S. S. M. Ey. Co., 122 Minn. 458 . 35 La Casse v. New Orleans, T. & M. E. Co., — La. — , 6 N. C. C. A. 196n, 437n, 64 So. 1012 81, 114, 249, 281 LaMere v. Eailway T. Co., 125 Minn. 526, 6 N. C. C. A. 97n, lOOn. 56 Lamphere v. Oregon, E. & N. Co., 116 C. C. A. 156, 196 Fed. 336, 6 N. C. C. A. 187n, 47 L. E. A. (N. S.) In 101, 103 Lauer v. Northern P. Ey. Co., — Wash. — , 145 Pac. 606 15 TABLE OF CASES XXIX [references are to pages] Law V. Illinois C. E. Co., 126 C. C, A. 27, 208 Fed. 869, 6 N. C. C. A. 103n, 201n 79, 85 Lehigh Iron Co. v. Eupp, 100 Pa. 95 178 Lett V. Eailway, 11 Ont. App. (Can.) 1 182 Lloyd V. Southern Ey. Co., — N. C. — , 6 N. C. C. A. 190n, 81 S. E. 1003 97, 212 Long V. Southern Ey. Co., — Ky. — , 159 S. W. 779 20, 63 Louisville & N. E. Co. v. Allen, 152 Ky. 145, 152 Ky. 837 134, 136 LouisvUle & N. E. Co. v. Heinig, — Ky. — , 171 S. W. 853 217, 221, 223 LouisviUe & N. E. Co. v. Johnson, — Ky. — , 171 S. W. 847 16, 35, 36, 59 LouisvUle & N. E. Co. v. Kemp, 140 Ga. 657, 6 N. C. C. A. 75n, 196n 20, 62, 94 Louisville & N. E. Co. v. Lankford, 126 C. C. A. 247, 209 Fed. 321, 6 N. C. C. A. 86n, 106n 51, 205, 221 Louisville & N. E. Co. v. Melton, 218 U. S. 36, 54 L. Ed. 921, 47 L. E. A. (N. S.) 84n 239 Louisville & N. E. Co. v. Moore, 156 Ky. 708, 4 N. C. C. A. 227n, 5 N. C. C. A. 771n 16, 81, 306 Louisville & N. E. Co. v. Mottley, 219 U. S. 467, 55 L. Ed. 297, 34 L. E. A. (N. S.) 671 230 Louisville & N. E. Co. v. Scott, 133 Ky. 724, 19 Ann. Cas. 392, 210 U. S. 209, 55 L. Ed. 183 314 Louisville & N. E. Co. v. Stewart, 156 Ky. 550, 6 N. C. C. A. 79n, 447n, 450n, 454n 17, 271 Louisville & N. E. Co. v. Strange 's Adm'x, 156 Ky. 439, 6 N. C. C. A. 75n, 82n, 83n, 185n 16, 71, 140, 305 Louisville & N. E. Co. v. Wene, 202 Fed. (C. C. A.) 887 31, 32, 217, 221 Louisville & N. E. Co. v. "Winkler. — Ky. — , 173 S. W, 151 36 LouisviUe, K A. & C. Ey. Co. v. Eush, 127 Ind. 545 182 LouisviUe, N. A. & C. Ey. Co. v. Wright, 134 Ind. 509 178 Lundeen v. Great N. Ey. Co., — Minn. — , 150 N. W. 1088 155 MeAdow V. Kansas City W. Ey. Co., — Mo. App. — , 6 N. C. C. A. 76n, 206n, 233n, 164 S. W. 188 15, 35, 130, 132, 303 McAuliffe V. New York, C. & H. E. Co., 150 N. Y. Supp. 512 71 McChesney v. lUinois C. E. Co., 197 Fed. 85 234 McCuUough V. Chicago, E. I. & P. E. Co., — Iowa — , 142 N. W. 67, 6 N. C. C. A. 78n, 444n, 449n, 451n. .20, 150, 151, 152, 154, 155 McDonald v. EaUway T. Co., 121 Minn. 273 55, 217, 270 McGarvey's Guardian v. McGarvey's Adm'r et al, — Ky. — , 173 S. W. 765 154 XXX INJURIES TO INTERSTATE EMPLOYES ON RAILROADS [references are to pages] McGovern v. Philadelphia & E. R. Co., 235 U. S. 389, — L. Ed. — , 209 Fed. 975, 6 N. C. C. A. 441n 161, 203 Mcintosh V. St. Louis & S. F. R. Co., — Mo. App. — , 168 S. W. 821 116, 256, 264, 273, 274 McKay v. New England Dredging Co., 92 Me. 454 178 McMillan v. Spider Lake Sawmill & Lumber Co., 115 Wis. 332, 60 L. R. A. 589, 95 Am. St. Eep. 947 161 McNeil V. Southern By. Co., 202 U. S. 543, 50 L. Ed. 1142 184 McNulta V. Ensch, 134 111. 46 126 McNulta V. Lockridge, 137 111. 270, 31 Am. St. Eep. 362, 32 lU. App. 86 ' 126 Maiorano v. Baltimore & O. E. Co., 216 Pa. 402, 21 L. R. A. (N. S.) 271 161 Malloy V. Northern P. R. Co., 151 Fed. 1018, 1 N. C. C. A. 862n. . 191 Martin v. Atchison, T. & S. F. Ry. Co., — Kan. — , 145 Pac. 849. 24 Maxwell v. Dow, 176 U. S. 581, 44 L. Ed. 597 313 Meyers v. Norfolk & W. Ry. Co., — N. C. — , 78 S. E. 280 103 Michigan C. Ry. Co. v. Vreeland, 227 U. S. 59, 57 L. Ed. 417, 3 N. C. C. A. 807, Ann. Cas. 1914C 176n 12, 15, 68, 148, 149, 152, 159, 160, 177, 179, 181, 274, 275 Midland V. R. Co. v, Ennis, — Ark. — , 6 N. C. C. A. 80n, 234n, 159 S. W. 215 255, 257, 269, 278 Midland V. R. Co. v. Fulgham, 104 C. C. A. 151, 181 Fed. 91. .48, 64 Midland V. R. Co. v. LeMoyne, — Ark. — , 4 N. C. C. A. 493n, 148 S. W. 654 253 Milwaukee, etc. R. R. Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256. 31 Missouri, K. & T. Ry. Co. v. Blalack, 105 Tex. 296 109 Missouri, K. & T. Ry. Co. v. Bunkley, — Tex. Civ. App. — , 56 N. C. C. A. 583n, 153 S. W. 937 54, 217, 234 Missouri, K. & T. Ry. Co. v. Byrne, 40 C. C. A. 402, 100 Fed. 359. 31 Missouri, K. & T. Ry. Co. v. Denahy, — Tex. — , 6 N. C. C. A. 202, 165 S. W. 529 80 Missouri, K. & T. Ry. Co. v. Fesmire, — Tex. — , 150 S. W. 201. . 96 Missouri, K. & T. Ry. Co. v. Freeman, — Tex. — , 5 N. C. C. A. 583n, 584n, 168 S. W. 69 206 Missouri, K. & T. Ry. Co. v. Hawley, — Tex. Civ. App. — , 123 S. W. 726 277 Missouri, K. & T. Ry. Co. v. Lenahan, 39 Okla. 283, 6 N. C. C. A. 75n, 78n, 437n 248, 281 Missouri, K. & T. Ry. Co. v. Neaves, — Tex. Civ. App. — , 127 S. W. 1090 '. 277 Missouri, K. & T. Ry. Co. v. Rentz, — Tex. Civ. App. — , 6 N. C. C. A. 195n, 162 S. W. 959 101 TABLE OF CASES XXX I [references are to pages] Missouri, K. & T. Ry. Co. v. Scott, — Tex. Civ. App. — , 160 S. W. 432 192 Missouri, K. & T. Ey. Co. v. West, — Okla. — , 134 Pac. 655. .24, 109 Missouri, K. & T. Ry. Co. v. Wulf, 226 U. S. 570, 57 L. Ed. 355, 6 N. C. C. A. 230n, 237n, Ann. Cas. 1914B 134n. . . .247, 282, 285 Moliter v. Wabash R. Co., — Mo. App. — , 168 S. W. 250,' 6 N. C. C. A. 75n, Sin, 233n 239, 244, 255, 256, 257, 278 Mondou V. New York, N. H. & H. R. Co., 223 U. S. 1, 56 L. Ed. 327, 1 N. C. C. A. 875, 38 L. R. A. (N. S.) 44 8, 45, 213 Monroe v. Pacific Dredging Co., 84 Cal. 515, 18 Am. St. Rep. 248. 182 Montgomery v. Carolina & N. W. R. Co., 163 N. C. 597, 6 N. C. C. A. 88n 59 Montgomery v. Southern P. Co., 64 Or. 597, 47 L. R. A. (N. S.) 13n 15, 86, 97 Moyse v. Northern P. Ry. Co., 41 Mont. 272 24 Mulhall V. FaUow, 176 Mass. 266 161 Nashville, C. & St. L. Ry. Co. v. Banks, 156 Ky. 609, 6 N. C. C. A. 99n, 105n, 186n 69, 87, 218, 225 NashviUe, C. & St. L. Ry. Co. v. Henry, 158 Ky. 88, 4 N. C. C. A. 495n, 6 N. C. C. A. 99n, 106n 35, 165, 218 Neil V. Idaho & W. N. R. Co., 22 Idaho 74 20, 93, 99, 218, 277 Neith V. Delano, — Mo. App. — , 171 S, W. 1 210 New York, C. & St. L. R. Co. v. Niebel, 214 Fed. (C. C. A.) 952. . 172, 221, 223 New York, N. H. & H. R. Co. v. Portillo, 211 Fed. (C. C. A.) 331. 61 New York, N. H. & H. R. Co. v. Walsh, 223 U. S. 1, 56 L. Ed. 327, 1 N. C. C. A. 875, 38 L. R. A. (N. S.) 44 8 Niles V. Central V. Ry. Co , 87 Vt. 356, 6 N. C. C. A. 75n. . . .205, 260 Nordgard v. Marysville & N. Ry. Co., 211 Fed. 721, 6 N. C. C. A. 207n 124, 127 Norfolk & W. Ry. Co. v. Earnest, 229 U. S. 114, 57 L. Ed. 1096, 3 N. C. C. A. 806, Ann. Cas. 1914C I72n. . .197, 217, 218, 219, 224 Norfolk & W. R. Co. v. Holbrook, 235 U. S. 625, 215 Fed. 687. . 54, 164, 171 North Carolina R. Co. v. Zachary, 232 U. S. 248, 58 L. Ed. 591, 6 N. C. 0. A. 194n, Ann. Cas. 1914C 159n 85, 93, 98, 102, 111, 119, 127, 133, 149, 245, 253, 255, 256, 274, 301 Northern P. Ry. Co. v. Babcock, 223 U. S. 1, 56 L. Ed. 327, 1 N. C. C. A. 875, 38 L. R. A. (N. S.) 44 8 Northern P. Ry, Co. v. Dixon, 139 Fed. 737 49 Northern P. R. Co. v. Maerkl, 117 C. C. A. 237, 198 Fed. 1 77, 134, 199, 176, 177 Northern P. Ry. Co. v. Washington, 222 U. S. 370, 56 L. Ed. 237, 53 Wash. 673 70 XXXU INJURIES TO INTERSTATE EMPLOYES ON RAILROADS [references are to pages] Oberlin v. Oregon W. R. & N. Co., — Ore. — , 6 N. C. C. A. 75n, 79n, 95n, 188n, 142 Pac. 554 115, 119, 192, 200 Oliver v. Northern P. E. Co., 196 Fed. 432 108 Olsen V. Andrews, 168 Mass. 261 101 Omaha & C. B. S. Ry. Co. and Omaha & C. B. Ry. & B. Co. v. Interstate Commerce Commission and United States, 230 U. S. 324, 57 L. Ed. 1501, 46 L. E. A. (N. S.) 385n, 191 Fed. 40, 179 Fed. 243, 17 Interst. Com. Com'n R., 239 132 Osborn v. Lovell, 36 Mich. 250 226 Owens V. Chicago G. W. R. Co., 113 Minn. 49 20 Packet Co. v. McCue, 17 Wall (U. S.) 508, 21 L. Ed. 705 101 Padgett V. Seaboard A. L. Ry. Co., — S. C. — , 83 S. E. 633 24 Pankey v. Atchison, T. & S. F. Ry. Co., 180 Mo. App. 185 32, 34, 64, 218, 222, 234 Parsons v. Chicago N. W. Ry. Co., 167 U. S. 447, 42 L. Ed. 232. . 135 Patry v. Chicago & W. I. R. Co., — 111. — , 106 N. E. 843, 185 111. App. 361 72, 120 Patton V. Cincinnati, N. O. & T. P. Ry., 208 Fed. 29 234 Patton V. Texas & P. Ry. Co., 179 U. S. 658, 45 L. Ed. 362, 5 N. C. C. A. 43n 49 Pecos & N. T. Ry. Co. v. Cox, 105 Tex. 40 34 Pedersen v. Delaware, L. & W. Ry. Co., 229 U. S. 146, 57 L. Ed. 1125, 6 N. C. C. A. 198n, 924n, Ann. Cas. 1914C 153n 45, 68, 72, 77, 81, 84, 103, 104, 110, 113, 117, 123 Peery v. Illinois C. R. Co., 123 Minn. 264, 6 N. C. C. A. I84n, — Minn. — , 150 N. W. 382 35, 115 Pelton V. Illinois C. R. Co., — la. — , 150 N. W. 236 302 Pennsylvania R. Co. v. Cole, 214 Fed. (C. C. A.) 948 217, 223 Pennsylvania R. Co. v. Goodman, 62 Pa. 329, 339 182 Pennsylvania R. Co. v. Goughnour, 126 C. C. A. 39, 208 Fed. 961 51, 205 Pennsylvania R. Co. v. Knox, 218 Fed. (C. C. A.) 748 140 Penny v. New Orleans, G. N. R. Co., — La. — , 66 So. 313 250, 255 Pfeiffer v. Oregon W. R. & N. Co., — Or. — , 7 N. C. C. A. 685, 144 Pac. 762 168, 218, 222, 291 Philadelphia, B. & W. R. Co. v. Schubert, 224 U. S. 603, 56 L. Ed. 911, 1 N. C. C. A. 892, 6 N. C. C. A. 103n 7, 228, 229 PhUadelphia, B. & W. R. Co. v. Tucker, 35 App. Cas. (D. C.) 123, 1 N. C. C. A. 841n 102, 191, 221 Pierce v. Conners, 20 Colo. 178, 47 Am. St. Rep. 279 178 Pierson v. New York, S. & W. R. Co., 83 N. J. L. 661 112 Pittsburg, C. C. & St. L. Ry. Co. v. Glinn, — C. C. A. — , 219 Fed. 148 85 PoweU V. Freeman, 105 Tex. 317 95 TABLE OF CASES XXX111 [references are to pages] Pullman Co. v. Lawrence, 74 Miss. 782 35 Kailroad Commission of Louisiana v. Texas & P. E. Co., 229 U. S. 336, 57 L. Ed. 1215 143 Easmussen v. United States, 197 U. S. 516, 49 L. Ed. 862 312 Eeardon v. Blaklala C. C. Co., 193 Fed. 189 282 Eeeve v. Northern P. Ey. Co., — Wash. — , 144 Pac. 63 24 Eenlund v. Commodore Min. Co., 89 Minn. 41, 99 Am. St. Eep. 534 161 Ehoads v. Chicago & A. Ey. Co., 227 lU. 328, 11 L. E. A. (N. S.) 623, 10 Ann, Cas. Ill 178 Eice V. Boston & M, E. Co., 203 Fed. 580 235 Eich V. St. Louis & S. F. E. Co., 166 Mo. App. 379 5, 12, 87, 247, 255, 277 Eichelieu v. Union P. Ey. Co., — Neb. — , 149 N. W, 772 155, 158 Eichmond v, Chicago & W. M. Ey. Co., 87 Mich. 374 178 Eidge V. Norfolk S. Ey. Co., — N. C. — , 83 S. E. 762 48, 52 Eief V. Great N. Ey. Co., — Minn. — , 148 N. W. 309 24 Eobinson v. Baltimore & O. E. Co., 40 App. Cas. (D. C.) 169 109 Boot V. Kansas City S. Ey. Co., 195 Mo. 348, 6 L. E. A. (N. S.) 212n 35 Boss V. St. Louis & S. F. E. Co., — Kan. — , 144 Pac. 844 218, 223, 226 Eowlands v. Chicago N. W. E. Co., 149 Wis. 51 70, 273 Buck V. Chicago, M. & St. P. Ey. Co., 153 Wis. 158, 6 N. C. C. A. 204n 16, 83, 111 San Antonio & A. P. Ey. Co. v. Long, 87 Tex. 148, 24 L. E. A. 637 178 Sanders v. Charleston & W. C. Ey. Co., — S. C. — , 6 N. C. C. A. 200n, 81 S. E. 283 24, 100 Sandidge v. Atchison T. & S. F. E. Co., 193 Fed. (C. C. A.) 867 191, 221 San Jose Land & Water Co. v. San Jose Eanch Co., 189 U. S. 177, 180, 47 L. Ed. 765, 768 242 San Pedro, L. A. & S. B. Co. v. Davide, 127 C. C. A. 454, 210 Fed. 870, 6 N. C. C. A. 197n 52, 93. 99 Saunders v. Southern Ey. Co., — N. C. — , 83 S. E. 573 107 Schaub V. Hannibal, St. J. Ey. Co., 106 Mo. 74 182 Sehlemmer v. Buffalo, E. & P. E. Co., 205 U. S. 1, 12, 51 L. Ed. 681, 686, 1 N. C. C. A. 859n, 4 N. C. C. A. 483n, 207 Pa. 198, 220 U. S. 590, 55 L. Ed. 596, 4 N. C. C. A. 483n, 222 Pa. 470 194, 200, 204, 213 Schnatz v. Philadelphia & E. E. Co., 160 Pa. 602 178 Schweig V. Chicago, M. & St. P. E. Co., 216 Fed. (C. C. A.) 750, 205 Fed. 96 212, 215 Seaboard A. L. By. Co. v. Duvall, 225 U. S. 477, 56 L. Ed. 1171. . 239, 242, 256, 273 XXXIV INJURIES TO INTERSTATE EMPLOYES ON RAILROADS [references ake to pages] Seaboard A. L. Ey. Co. v. Horton, 233 U. S. 492, 58 L. Ed. 1062, 6 N. C. C. A. 75n, 95n, 101, 102n, 162 N. C. 424 12, 15, 20, 36, 192, 193, 197, 201, 204, 209, 218, 219, 280 Seaboard A. L. Ey. Co. v. Moore, 228 U. S. 433, 57 L. Ed. 907, 3 N. C. C. A. 812 20, 193, 213 Seale v. St. Louis, S. F. & T. E. Co., 229 U. S. 156, 57 L. Ed. 1129, Ann. Cas. 1914C 156n, — Tex. Civ. App. — , 148 S. W. 1099 244, 277, 278 Second Employers' Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 1 N. C. C. A. 875, 38 L. E. A. (N. S.) 44 7, 11, 68, 113, 123, 233, 261 Seiben v. Great N. Ey. Co., 76 Minn. 269 178 Seward v. Vera Cruz, 10 App. Cas. 59 182 Shade v. Northern P. Ey. Co., 206 Fed. 353, 6 N. C. C, A. 93n.255, 256 Shannon v. Boston & M. E. Co., — N. H. — , 92 Atl. 167 237 Shugart v. Atlantic, etc. Ey. Co., 66 C. C. A. 379, 133 Fed. 505 31 Skaggs V. lUinois C. E. Co., 124 Minn. 503 56 Smith V. Lisher, 23 Ind. 502 226 Smith V. Northern P. E. Co., — Wash. — , 5 N. C. C. A. 947, 6 N. C. C. A. 85n, 92n, 140 Pac. 685 52 South Covington & C. St. Ey. Co. v. Finan 's Adm 'x, 153 Ky. 340 20, 38, 60, 305 Southern P. Co. v, Vaughn, — Tex. Civ. App. — , 165 S. W. 885 119, 295, 302 Southern Ey. Co. v. Bennett, 233 U. S. 80, 58 L. Ed. 860 16, 49, 245, 303, 318 Southern Ey. Co. v. Crockett, 234 U. S. 725, 58 L. Ed. 1564, 6 N. C. C. A. 94n 118, 198, 218 Southern Ey. Co. v. Hill, 139 Ga. 549 151, 218, 220 Southern Ey. Co. v. Howerton, — Ind. — , 101 N. E. 121, 105 N. E. 1025, 6 N. C. C. A. 75n, 82n 93, 191, 249, 255, 264, 281 Southern Ey. Co. v. Jacobs, — Va. — , 6 N. C. C. A. 94n, 186n, 81 S. E. 99 55, 91, 213 Southern Ey. Co. v. Murphy, 9 Ga. App. 190, 3 N. C. C. A. 791n.71, 72 Southern Ey. Co. v. Smith, 123 C. C. A. 488, 205 Fed. 360 55, 189, 317 Southern Ey. Co. v. Smith, 214 Fed. (C. C. A.) 942 217 Southern Ey. Co. v. United States, 222 U. S. 20, 56 L. Ed. 72, 3 N. C. C. A. 822 118, 119 Spokane & I. E. E. Co. v. CampbeU, 217 Fed, (C. C. A.) 518. .32, 223 St. Louis & S. F. E. Co. v. Conarty, 106 Ark. 421, 6. N. C. C. A. 202n, 447n 80, 177, 234 St. Louis & S. F. E. Co. v. Duke, 112 C. C. A. 564, 192 Fed. 306 . . 159 St. Louis & S. F. E. Co. v. Geer, — Tex. Civ, App, — , 149 S. W. 1178 148, 159 TABLE OP CASES XXXV [references are to pages] St. Louis, I. M. & S. Ey. Co. v. Conley, 110 C. C. A. 97, 187 Fed. 949 70 St. Louis, I. M. & S. Ey, Co. v. Hesterly, 228 U. S. 702, 57 L. Ed. 1031, 98 Ark. 240 12, 24, 163, 242, 247, 249 St. Louis, I. M. & S. Ey. Co. v. McWliirter, 229 U. S. 265, 57 L. Ed. 1179, 145 Ky. 427 15, 36, 240, 241, 289 St. Louis, I. M. & S. Ey. Co. v. Needham, 16 C. C. A. 457, 69 Fed. 823 31 St. Louis, L M. & S. Ey. Co. v. Sharp, — Ark. — , 171 S. W. 95. . 261 St. Louis, I. M. & S. Ey. Co. v. Taylor, 210 U. S. 281, 52 L. Ed. 1061 , 47, 239, 242 St. Louis, M. & S." E. E. Co. v. Garner, 76 Ark. 555 178 St. Louis, S. F. & T. E. Co. v. Seale, 229 U. S. 156, 57 L. Ed. 1129, 3 N. C. C. A. 800, Ann. Cas. 1914C 156n 12, 92, 103, 107, 110, 149, 247, 255, 279, 284 St. Louis, S. F. & T. Ey. Co. v. Smith, 171 S. W. 512, 160 S. W. 317 284 St. Louis S. W. Ey. Co. v. Brothers, — Tex. Civ. App. — , 165 S. W. 488 12, 102, 247, 251 St. Louis S. W. Ey. Co. v. Huey, — Tex. Civ. App. — , 130 S. W. 1017 178 Standard Light & Power Co. v. Muncey, 33 Tex, Civ. App. 416. . . 178 Stearns v. Chicago, E. I. & P. Ey. Co., — Iowa — , 148 N, W. 128. 118 Sweet V. Chicago & N. W. Ey. Co., 157 Wis. 400, 6 N. C. C. A. 78n, 94n, 232n, 451n 16, 57, 317 Swift & Co. V. Johnson, 71 C. C. A. 619, 138 Fed. 867, 1 L. E. A. (N. S.) 1161n 178 Szymanski v. Blumenthal, 3 Pennew. (Del.) 558 161 Taff Ey. Co. v. Jenkins, A. C. Eng. Cas 179 Taylor v. Southern Ey. Co., 178 Fed. 380 113 Taylor v. Taylor, 232 U. S, 363, 58 L. Ed. 638, 6 N. C. C. A. 436 181, 188 Teel V. Chesapeake & O. Ey. Co., 123 C. C. A. 240, 204 Fed. 918, 6 N. C. C. A. 79n, 47 L. E. A. (N. S.) 21n 234 Texas & P. E. Co. v. Archibald, 170 U. S. 665, 42 L. Ed. 1188, 4 Am. Neg. Eep. 746 204, 213 Texas & P. E. Co. v. Behymer, 189 U. S. 468, 47 L. Ed. 905, 13 Am. Neg. Eep. 695 204 Texas & P. E. Co. v. Harvey, 228 U. S. 319, 57 L. Ed. 852 193 The Passaic, 190 Fed. 644, 122 C. C. A. 466, 204 Fed. 266 63, 131 The Pawnee, 205 Fed. 33 131 Thomas v. Boston & M. E. Co., 219 Fed. (C. C. A.) 180 106 Thomas v. Chicago & N. W. Ey. Co., 202 Fed. 766, 6 N. C. C. A. 439n, 446n 146, 149, 236, 274 XXXVl INJURIES TO INTERSTATE EMPLOYES ON RAILROADS [eeferences are to pages] Thompson v. Utah, 170 U. S. 343, 42 L. Ed. 1061 312 Thompson v. Wabash R. Co., — Mo. — , 171 S. W. 364 133 Thornbro v. Kansas City, M. & O. Ry. Co., 91 Kan. 684, 139 Pac. 1199 89 Thornton v. Seaboard A. L. Ry. Co., — S. C. — , 6 N. C. C. A. 85n, 93n, 82 S. E. 433 59, 151 Tilgham v. Seaboard A. L. Ry. Co. — N. C. — , 83 S. E. 315. .218, 318 Tilley v. Hudson R. R. Co., 24 N. Y. 471, 29 N. Y. 252 182 Tilt V. Kelsey, 207 U. S. 43, 52 L. Ed. 95 239 Tinkham v. Boston & M. R. Co., 77 N. H. 711, 6 N. C. C. A. 81n, 233n 16, 303 Toledo, St. L. & W. R. Co. v. Slavin, — U. S. — 12, 278 Travelers' Ins. Co. v. Melick, 12 C. C. A. 544, 65 Fed. 178, 27 L. R. A. 629 31 Troxell v. Delaware, L. & W. R. Co., 180 Fed. 871, 183 Fed. 373, 227 N. S. 434, 57 L. Ed. 586 248, 315 Truesdell v. Chesapeake & O. Ry. Co., 159 Ky. 718 94, 192, 210 Tsmura v. Great N, Ry. Co., 58 Wash. 316, 3 N. C. C. A. 786n. .95, 274 Twitchell v. Pennsylvania, 7 WaU. (U. S.) 321, 19 L. Ed. 223. .. 313 Ullrich V. New York, N. H. & H. R. Co., 193 Fed. 768 . . 235, 257, 258 Union P. R. Co. v. Fuller, 122 C. C. A. 359, 204 Fed. 45 31 Union P. R. Co. v. O'Brien, 161 U. S. 451, 40 L. Ed. 766 204 Union P. R. Co. v. Wyler, 158 U. S. 285, 39 L. Ed. 983 284, 287 United States v. American Tobacco Co., 221 U. S. 106, 55 L. Ed. 663 181 United States v. Atchison, T. & S. F. Ry. Co., 90 C. C. A. 327, 163 Fed. 517 ¥8 United States v. Chicago, M. & St. P. Ry. Co., 149 Fed. 486 133 United States v. Chicago, M. & St. P. Ry. Co., 197 Fed. 624 69 United States v. Colorado N. W. R. Co., 85 C. C. A. 27, 157 Fed. 321, 15 L. R. A. (N. S.) 167n, 13 Ann. Cas. 893 69, 137 United States v. Geddes, 65 C. C. A. 320, 131 Fed. 452. .123, 135, 137 United States v. Standard Oil Co., 155 Fed. 306 135 United States v. Union Stock Yards & T. Co., 226 U. S. 300, 57 L. Ed. 232, 192 Fed. 330 135, 137, 138 VanBrimmer v. Texas & P, Ry. Co., (C. C. A.) 190 Fed. 394, 6 N. C. C. A. 79n 90 Vandalio R. Co. v. Stringer, — Ind. — , 106 N. E. 865 270, 272 Vaughn v. St. Louis & S. F. Ry. Co., 177 Mo. App. 155, 6 N. C. C. A. 75n, 438n, 439n 12, 56, 69, 248, 281 Vickery v. New London N. Ry. Co., 87 Conn. 634, 4 N. C. C. A. 218n, 6 N. C, C. A. 76n, 93n, 230n 206, 212, 260 TABLE OF CASES XXXVll [references are to pages] Wabash R. Co. v. Cregan, 23 Ind. App. 1 178 Wabash E. Co. v. Hayes, 234 U. S. 86, 58 L. Ed. 1226, 6 N. C. C. A. 224, 180 111. App. 511 16, 241, 244, 269, 303 Wagner v. Chicago & A. R. Co., — lU. — , 106 N. E. 809 129, 231, 253 Walker v. Sauvinet, 92 U. S. 90, 23 L. Ed. 678 313 Walsh V. New York, N. H. & H. K. Co., 173 Fed. 494 8, 11, 80, 111, 251 Walton V. Southern Ry. Co., 179 Fed. 175 274 Washington Ry. Co. v. Downey, 40 App. Cas. (D. C.) 147 131 Watson V. St. Louis, I. M. & S. Ry. Co., 189 Fed. 942 4 Western U. T. Co. v. Call Pub. Co., 181 U. S. 92, 47 L. Ed. 765. . 181 Western U. T. Co. v. White, — Tex. Civ. App. — , 5 N. C. C. A. 377n, 162 S. W. 905 . 35 White V. Central V. Ry. Co., 87 Vt. 330, 6 N. C. C. A. 75n, 92d, lOln, 450n 260 White V. Seaboard A. L. Ry. Co., — Ga. — , 80 S. B. 667 35 Whittaker v. Illinois C. Ry. Co., 176 Fed. 130 271 Wiles V. Great N. Ry. Co., 125 Minn. 348, 5 N. C. C. A. 60 48 Winfred v. Northern P. R. Co., 227 U. S. 296, 57 L. Ed. 518, 173 Fed. 65 278 Winters v. Minneapolis & St. L. R. Co., — Minn. — , 6 N. C, C. A. 78n, 201n, 148 N. W. 106 17, 60, 80, 271, 313 Wisconsin v. Chicago, M. & St. P. Ry. Co., 136 Wis. 407 48 Wright V. Chicago, R. I. & P. E. Co., 94 Neb. 317, 6 N. C. C. A. 183n 71, 113 Wright V. Yazoo & M. V. Ry. Co., 197 Fed. 94 191 Yazoo & M. V. R. Co. v. Wright, 235 U. S. 370, — L. Ed. — , 125 C. C. A. 25, 207 Fed. 281, 197 Fed. 94 203, 317 Zikos V. Oregon, W. R. & N. Co., 179 Fed. 893, 3 N. C. C. A. 783n, 784 94 INJURIES TO INTERSTATE EM- PLOYES ON RAILROADS CHAPTER I SCOPE, PURPOSE, VALIDITY AND EFFECT OF FEDERAL ACT § 1. Scope of the Federal Employers' Liability Act. § 2. Purpose of the Act. § 3. First Federal Employers ' Liability Act Invalid. § 4. Second Federal Employers ' Liability Act Valid. § 5. Extent of Power Exercised by Congress in Passing Federal Act. § 6. Amendments of 1910. § 7. Effect upon State Laws. § 8. Decisions of National Courts Construing Act Control. § 9. Laws of State Control as to Procedure. § 1. Scope of the Federal Employers' Liability- Act. — The Act of Congress, commonly known as the Federal Employers' Liability Act, was approved on April 22, 1908. This federal statute governs the rights, duties and liabilities of common carriers by railroad to their employes for personal injuries, when the injury or death occurs while the carrier is engaged and the injured servant is employed in interstate commerce. The law also applies to com- mon carriers by railroad and all their employes in the territories and other possessions of the United States. Nearly all railroads in the United States are con- Roberts Liabilities — i I INJURIES TO INTERSTATE EMPLOYES ON RAILROADS stantly engaged in interstate commerce. Under the controlling rulings and decisions of the national Supreme Court during the years 1912, 1913 and 1914, in cases hereinafter cited, it is conservatively esti- mated by those in positions to know that at least 80 per cent of all railroad employes in the United States are employed in interstate commerce, so that, if injured or killed, while so employed in interstate commerce, the remedy for the injured man, if living, and, if dead, for his dependents, is to be determined and measured by this federal act. Employes injured while engaged in intrastate commerce are still governed by the laws of the states where the accidents occur. As to intrastate em- ployes, the remedy provided by the state, is exclu- sive, and as to interstate employes, working for interstate railroads, the remedy given by the federal statute, is exclusive, so that a practitioner repre- senting any employe, or an employe's beneficiaries in case of death, in any action for personal in- juries against a common carrier by railroad, must familiarize himself with the Federal Employers' Liability Act to determine which law, if any, fur- nishes a remedy for his client. § 2. Purpose of the Act. — Prior to the enactment of the Federal Employers ' Liability Act of 1908 the law governing the liability of railroad companies engaged in interstate commerce to their employes for personal injuries while employed in such com- merce, depended upon the statutes and decisions of the state in which the accident occurred. In some states the fellow servant doctrine, that is, uon- SCOPE, VAUDITY AND EFFECT OF ACT 3 liability of railroads for injuries to one servant by the negligence of another, was enforced, but in others it had been abolished by statute or judicial rulings. In some jurisdictions contributory negli- gence was a bar to the suit, while in others the employe's negligence contributing to the injury merely reduced the damages. Assumption of risk as a defense in some states was applied with its full common law vigor; but in other jurisdictions it had been partially abolished by statute or changed by judicial legislation to a mere verbal formula with- out substance as a defense to negligence. Some judges had held, that contracts with employes not to sue in consideration of some form of insurance or indemnity fund, were valid, while others decided to the contrary. From this babel of judicial voices, with its con- sequent glaring inequities and inequalities, came the national act, declaring one rule of liability through- out the nation and with it, as a necessary concomi- tant, the decisions of the national courts, construing the act in all its parts, became binding upon all state courts. The fellow servant doctrine was abolished; something akin to comparative negligence was sub- stituted for contributory negligence; assumption of risk in certain cases was abolished; contracts for a consideration of indemnity waiving the right to sue were declared void and the principle of compensation as a substitute for penalties in the way of damages which regulated recoveries in certain states, was adopted. Congress enacted this statute so that a uniform law could apply to those engaged in inter- 4 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS state commerce in all the states, and so that certain common law rules determining liability might be abolished in order to protect the lives and persons of employes, by securing a more careful selection of employes, a closer supervision of them and a more rigid enforcement of their duties.^ -- § 3. First Employers' Liability Act Invalid. — The first Federal Employers' Liability Act of 1906, passed by Congress and approved June 11, 1906, was declared invalid by the national Supreme Court, because its terms included all who engaged in inter- state commerce between the states — hacks, ferries, bridges, trolley lines, telephone and telegraph com- panies, and railroads — as carriers as well as all their employes, regardless of whether the employer was engaged in or the injured servant was employed in interstate commerce at the time of the injury.^ The first act included every individual or corporation engaged in interstate commerce between the states and all their employes. This act was broader than the constitutional power delegated by the states to the national government, and hence was invalid as being beyond the power given to Congress. The act however, was declared valid as to the District of Columbia and territories of the United States, for the reason that Congress has plenary powers in all matters relating to such territories. In the District of Columbia, the Panama 1. Kelly V. Great Northern Ey., 152 Fed. 211; Watson v. St. Louis, I. M. & S. Ey. Co., 189 Fed. 942. 2. First Employers' Liability Cases, 207 U. S. 463, 52 L. Ed. 297, aflf'g Brooks v. Southern P. Ey. Co., 148 Fed. 986, and Howard v. Illinois C. By. Co., 148 Fed. 997. SCOPE, VALIDITY AND EFFECT OF ACT 5 Canal Zone, Alaska, Porto Rico, Hawaiian Islands and Philippine Islands, by the Act of 1906 every common carrier engaged in trade or commerce was liable ' ' to any of its employes. ' ' ^ As to carriers engaged in commerce between the states, the majority opinion held that matters under the jurisdiction of the national government and those within the sole jurisdiction of the states, were so blended in the act that they could not be separated by the court, and therefore, the whole act as to common carriers and their employes engaged in commerce between the states, must be held void. The part of the act applying to territories, was held to be capable of separation by a judicial interpreta- tion and as so separated, it was held valid. In the 1906 Act Congress attempted to legislate upon a subject matter wholly within the power of the state and had so interblended that power with its juris- diction over interstate commerce, that the several clauses could not be separated, and that part cover- ing interstate commerce remain valid. §4. Second Federal Employers' Liability Act Valid. — After the national Supreme Court declared the Act of 1906 invalid on January 6, 1908, for the reasons mentioned in the preceding paragraph. Congress passed the Second Federal Employers' Liability Act (§ 35, U. S. Stat, at L. 65 c. 149), which was approved April 22, 1908.^ The first section pro- 3. The 1906 Act was valid as to these territories: El Paso & N. E. E. Co. V. Gutierrez, 215 U. S. 87, 54 L. Ed. 106, aflf'g 102 Tex. 378; Atchison, T. & S. F. Ey. Co. v. MiUs, 49 Tex. Civ. App. 349. 4. The entire act without the 1910 amendments is quoted in full in Eich v. St. Louis & S. F. E. Co., 166 Mo. App. 379, which was the 6 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS vides that every common caiTier by railroad while engaged in interstate commerce, shall be liable to every employe while employed by such carrier in such commerce or in case of his death, to certain beneficiaries therein named, for such injury or death, resulting in whole or in part, from the negligence of the carrier, or its employes, or by defects or in- sufSciencies due to negligence in any of its equip- ments or property. The second section provides that every common carrier by railroad on lands of the United States other than states shall be liable in the same way to any of its employes. The third section provides that contributory negligence shall not bar recovery, but shall only diminish the damages, except that no employe injured or killed where the viola- tion of a safety law for employes contributed to the injury, shall be held to have been guilty of. con- tributory negligence. The fourth section provides that assumption of risk shall not be a defense, where the violation of a safety law contributed to the accident. The fifth section declares all contracts or devices intended to exempt the carrier from lia- bility under the act to be void, except that the carrier may plead as a set-off any sum if paid to the injured employe as insurance or relief fund. Sec- first case by the Missouri appellate courts construing the act. Judge Nortoni, in that case, held that the remedy provided by the act was exclusive and that a switchman on a freight train carrying freight from a point in a state to a point in another was engaged in inter- state commerce and that a suit by a widow suing in her own capacity could not be maintained; in case of death, suit must be brought by the ' ' personal representative ' ' as required by the act. Judge Nor- ton i's ruling has since, in other cases, been sustained by the national Supreme Court. (See § 1S9, infra.) SCOPE, VALIDITY AND EFFECT OF ACT 7 tion 6 provides that any action under the act is barred after two years. Section 8 provides that the act does not limit the obligation of a common carrier under any other federal law or affect any pending suits under the 1906 Act. After conflicting decisions by state and federal courts, the constitutionality and validity of this act in all its parts was presented to the Supreme Court of the United States and the act was declared con- stitutional on January 15, 1912.^ In a later case the Supreme Court held § 5 of the national act valid.*^ These decisions render any discussion as to the validity of the Act of 1908 purely academic and such questions are now, so far as all other courts are concerned, finally and conclusively decided. § 5. Extent of Power Exercised by Congress in Passing the Federal Act. — A troublesome question to the practitioner will frequently arise as to whether the facts of his case create a cause of action under the federal act, or under the laws of the state since the remedy in each realm is exclusive. Many con- flicting decisions which will be reviewed later, have already been handed down defining or holding when a railroad company is engaged in interstate com- merce '^ or when a servant is employed in such com- merce,^ for under the federal act both must be so engaged to render the statute applicable and the 5. Second Employers' LiabUity Cases, 223 U. S. 1, 56 L. Ed. 327, 1 N. C. C. A. 875, 38 L. R. A. (N. S.) 44. 6. PhUadelphia, B. & W. E. Co. v. Schubert, 224 U. S. 603, 56 L. Ed. 911, 6 N. C. C. A. 103n. 7. Chapter IV, infra. 8. Chapter III, infra. 8 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS remedy therein provided is then exclusive. In the Second Employers' Liability Cases ^ the Supreme Court of the United States laid down general rules to be applied in determining when a railroad em- ploye is engaged in interstate commerce, but these rules, necessarily so, were vague and indefinite so that the question of when a railroad company is employed in interstate commerce or when a servant is employed in such commerce, was necessarily left to be determined by all the facts of each particular case, and conflicting views of courts on similar facts have been the result. These general rules as to the extent and power of Congress in dealing with the relation of railroads and their employes while the one is engaged and the other is employed in interstate commerce, were sum- marized by the court as follows: "The clauses in the Constitution (Art. 1, § 8, c. 3 and 18) which confer upon Congress the power Ho regulate commerce * * * among the several States' and 'to make all laws which shall be necessary and proper' for the purpose have been considered by this court so often and in such varied connections that some propositions bearing upon the extent and nature of this power have come to be so firmly settled as no longer to be open to dispute, among them being these: 1. The term 'commerce' comprehends more 9. 223 U. S. 1, 56 L. Ed. 327, 1 N. C. C. A. 875, 38 L. B. A. (N. S.) 44. The Second Employers' Liability Cases included the following cases appealed from different courts and decided by the United States Supreme Court at the same time and in one opinion in which all the judges concurred: Mondou v. New York, N. H. & H. E. Co.; Northern P. Ry. Co. V. Babcock; New York, N. H. & H. E. Co. v. Walsh; Walsh V. New York, N. H. & H. E. Co. SCOPE, VALIDITY AND EFFECT OF ACT 9 than the mere exchange of goods. It embraces com- mercial intercourse in all its branches, including transportation of passengers and property by com- mon carriers, whether carried on by water or by land. 2. The phrase 'among the several States' marks the distinction, for the purpose of governmental regula- tion, between commerce which concerns two or more States and commerce which is confined to a single State and does not affect other States, the power to regulate the former being conferred upon Congress and the regulation of the latter remaining with the States severally. 3. 'To regulate,' in the sense in- tended, is to foster, protect, control and restrain, with appropriate regard for the welfare of those who are immediately concerned and of the public at large. 4. This power over commerce among the States, so conferred upon Congress, is complete in itself, ex- tends incidentally to every instrument and agent by which such commerce is carried on, may be exerted to its utmost extent over every part of such com- merce, and is subject to no limitations save such as are prescribed in the Constitution. But, of course, it does not extend to any matter or thing which does not have a real or substantial relation to some part of such commerce. 5. Among the instruments and agents to which the power extends are the railroads over which transportation from one state to another is conducted, the engines and cars by which such transportation is effected, and all who are in any wise engaged in such transportation, whether as common carriers or as their employes. 6. The duties of common carriers in respect of the safety of 10 INJURIES TO INTEESTATE EMPLOYES ON EAILEOADS their employes, while both are engaged in commerce among the States, and the liability of the former for injuries sustained by the latter, while both are so engaged, have a real or substantial relation to such commerce, and therefore are within the range of this power. Cooley v. Board of Wardens, 12 How. (U. S.) 299, 315-317 (11 L. Ed. 996, 1003, 1 N. C. C. A. 882); The Lottawanna, 21 Wall. (U. S.) 558 (22 L. Ed. 654) ; Sherlock v. AUing, 93 U. S. 99, 103-105 (23 L. Ed. 819); Smith v. Alabama, 124 U. S. 465, 479 (31 L. Ed. 508); Nashville, etc., Ry. Co. v. Alabama, 128 U. S. 96, 99 (52 L. Ed. 352) ; Peirce v. Van Dusen (24 C. C. A. 280), 78 Fed. 693, 698-700 (69 L. R. A. 705); Baltimore & Ohio R. R. Co. v. Baugh, 149 U. S. 368, 378 (37 L. Ed. 772) ; Patterson V. Bark Eudora, 190 U. S. 169, 176 (47 L. Ed. 1002) ; Johnson v. Southern Pacific Co., 196 U. S. 1 (49 L. Ed. 363, 3 N. C. C. A. 784) ; Schlemmer v. Buffalo, etc., Ry. Co., 205 U. S. 1 (51 L. Ed. 681, 1 N. C. C. A. 859n, 4 N. C. C. A. 483n) ; Employers' Liability Cases, 207 U. S. 463, 495 (52 L. Ed. 297); Adair v. United States, 208 U. S. 161, 176, 178 (52 L. Ed. 436) ; Baltimore & Ohio R. R. Co. v. Interstate Commerce Commission, 221 U. S. 612, 618 (55 L. Ed. 878); Southern Railway Co. v. United States, 222 U. S. 20 (56 L. Ed. 72, 3 N. C. C. A. 822)." §6. Amendments of 1910.— In 1910 Congress passed two important amendments to the Federal Employers' Liability Act. One provides that any action under the act may be brought in a circuit court of the United States in the district of the residence of the defendant, or in which the canse of SCOPE, VAUDITY AND EFFECT OF ACT 11 action arose or in which the defendant shall be doing business at the time of commencing such action, and further provides that the jurisdiction of the courts of the United States shall be concurrent with that of the courts of the several states, and any case arising under the act and brought in any state court shall not be removable to any court of the United States. The second amendment provides, that, * ' any right of action given by this act to a person suffering injury shall survive to his or her personal repre- sentative, for the benefit of the surviving widow or husband and children of such employe and, if none, then of such employe's parents, and, if none, then of the next of kin dependent upon such employe, but in such cases there shall be only one recoveiy for the same injury." ^'^ § 7. Effect Upon State Laws. — As to all injuries or deaths happening under the conditions defined in the act, i. e., while both carrier and employe are engaged in interstate commerce, the remedy therein given is exclusive and all state laws in so far as they attempt or do cover the same field are superseded. ^^ 10. The first amendment was the result of the decision in Hoxie V. New York, N. H. & H. K. Co., 82 Conn. 352, 17 Ann. Gas. 324, holding that Congress did not intend that jurisdiction of cases under the act shoxild be assumed by state courts. The Hoxie case was overruled later in Second Employers' Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 1 N. C. C. A. 875, 38 L. R. A. (N. S.) 44. The second amendment resulted from the decision of Judge Rogers in Fulgam v. Midland V. E. Co., 167 Fed. 660, and of Judge Lowell's decision in Walsh, Adm 'r, v. New York, N. H. & H. R. Co., 173 Fed. 494, holding that a right of action given to the injured employe under the act of 1908, did not survive to his personal representative in the event of his death, but as at common law, perished with the injured person, 11. Second Employers' Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 12 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS The act supersedes all state and territorial laws over the matter with which it deals. If the injury or death occurred under the circumstances defined in the act, there is no choice of remedy except the federal act. "^ince the act is exclusive an employe injured while employed in interstate commerce by a common carrier by railroad also engaged in such commerce, must bring his action upon this statute and no other; and the same is true as to the personal representatives in cases of death.^^ State legislation on contributory negligence, assumption of risk or who may recover in case of death, are nugatory as to all casualties happening under the conditions described in this act, that is, while both carrier and employe are engaged in interstate commerce.^ In the Mondou case (Second Employers' Liability Cases) cited in the notes, Mr. Justice Van Devanter, 1 N. C. C. A. 875, 38 L. E. A. (N. &'.) 44; St. Lonis, I. M. & S. E. Co. V. Hesterly, 228 U. S. 702, 57 L. Ed. 1031; 'Illiiiois C. R. Co. v. Doherty's Adm'r, 153 Ky. 363, 6 N. C. C. A. 75n, 440n, 444n, 47 L. E. A. (N. S.) 31n; Eich v. St. Louis & S. F. By. Co., 166 Mo. App. 379; Seaboard A. L. Ey. Co. v. Horton, 233 U. S. 492, 58 L. Ed. 1062, 6 N. C. C. A. 75n, 101, 102n. 12. Michigan C. E. Co. v. Vreeland, 227 U. S. 59, 57 L. Ed. 417, 3 N. C. C. A. 807, Ann. Cas. 1914 C 176n; Gulf, C. & S. F. Ey. Co. v. McGinnis, 228 U. S. 173, 57 L. Ed. 785, 3 N. C. C. A. 806, rev 'g judg- ment in same case reported in — Tex. Civ. App. — , 147 S. W, 1188; American E. Co. v. Birch, 224 U. S. 547, 56 L. Ed. 879, rev'g same case reported in 5 Porto Rico Fed. Eep. 273; Gee v. Lehigh VaUey R. Co., 148 N. Y. Supp. 882. 13. Seaboard A. L. Ey. Co. v. Horton, 233 U. S. 492, 58 L. Ed. 1062, 6 N. C. C. A. 75n, lOln, 102n; St. Louis, S. F. & T. Ey. Co. v, Seale, 229 U. &'. 156, 57 L. Ed. 1129, 3 N. C. C. A. 800, Ann. Caa. 1914 C 156n; DeAtley v. C. & O. Ey. Co,, 201 Fed. 591; St. Louis S. W. Ey. Co. V. Brothers, — Tex. Civ. App. — , 165 S. W. 488; Vaughn v. St. Louis & S. F. Ey. Co., 177 Mo. App. 155, 6 N. C. C. A. 75n, 438n, 439n; Flanders v. Georgia & F. Ey. Co., — Fla. — , 67 So. 68; Toledo, St. L. & W. R. Co. v. Slavln, — U. S. — . decided Feb. 23, 1915. SCOPE, VALIDITY AND EFFECT OF ACT 13 speaking- for the court, said: ^'The third question, whether those regulations supersede the laws of the states in so far as the latter cover the same field, finds its answer in the following extracts from the opinion of Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. (U. S.) 316 (4 L. Ed. 579), (p. 405) : 'K any one proposition could command the universal assent of mankind, we might expect it would be this — that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result neces- sarily from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one state may be willing to control its operations, no State is willing to allow others to control them. The nation, on these subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason; the people have, in express terms, decided it-, by saying, 'this constitution, and the laws of the United States, which shall be made in pursuance thereof, * * * shall be the supreme law of the land, ' and by requiring that the members of the state legislatures, and the officers of the execu- tive and judicial departments of the states, shall take the oath of fidelity to it. The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the constitution, form the supreme law of the land, 'anything in the constitution or laws of any state, to the contrary notwithstanding' (p. 426). This great principle is, that the constitution and the laws 14 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS made in pursuance thereof are supreme; that they control the constitution and laws of the respective states, and cannot be controlled by them.' And particularly apposite is the repetition of that prin- ciple in Smith v. Alabama, 124 U. S. 465, 473 (31 L. Ed. 508) : 'The grant of power to Congress in the Constitution to regulate commerce with foreign nations and among the several states, it is conceded, is paramount over all legislative powers which, in consequence of not having been granted to Congress, are reserved to the States. It follows that any legislation of a State, although in pursuance of an acknowledged power reserved to it, which conflicts with the actual exercise of the power of Congress over the subject of commerce, must give way before the supremacy of the national authority.' True, prior to the present act the laws of the several states were regarded as determinative of the liability of employers engaged in interstate commerce for in- juries received by their employes while engaged in such commerce. But that was because Congress, although empowered to regulate that subject, had not acted thereon, and because the subject is one which falls within the police power of the States in the absence of action by Congress. Sherlock v. Ailing, 93 U. S. 99 (23 L. Ed. 819) ; Smith v. Alabama, 124 U. S. 465, 473, 482 (31 L. Ed. 508); Nashville, etc., Railway v. Alabama, 128 U. S. 96, 99 (52 L. Ed. 352); Eeid v. Colorado, 187 U. S. 137, 146 (47 L. Ed. 108). The inaction of Congress, however, in no wise affected its power over the subject. The Lottawanna, 21 WaU. (U. S.) 558, 581 (22 L. Ed. SCOPE, VALIDITY AND EFFECT OF ACT 15 654) ; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 215 (29 L. Ed. 158). And now that Congress has acted, the laws of the States, in so far as they cover the same field, are superseded, for necessarily that which is not supreme must yield to that which is. GuLf, Colorado and Santa Fe Railway Co. v. Hefley, 158 U. S. 98, 104 (39 L. Ed. 910); Southern Eailway Co. v. Eeid, 222 U. S. 424 (56 L. Ed. 257); Northern Pacific Railway Co. v. Washington, 222 U. S. 370 (56 L. Ed. 237)." § 8. Decisions of National Courts Constming Act Control. — In construing the Federal Employers' Liability Act, the decisions of the national courts control over those of the state courts. For example, in determining when a carrier is guilty of negligence under the act; when an employe assumes the risk; what proof creates a dependency in death cases within the meaning of the act ; whether the doctrine of res ipsa loquitur applies; whether there is any evidence tending to show liability sufficient for the case to be submitted to the jury; the measure of damages and instructions thereon, are all matters upon which the decisions of the national courts con- trol, ^^ Where the decisions of the federal courts 14. St. Louis, I. M. & S. Ey. Co. v. McWhirter, 229 U. S, 265, 57 L. Ed. 1179, rev'g 145 Ky. 427; Seaboard A. L. Ry. Co. v. Horton, 233 U. &'. 492, 58 L. Ed. 1062, 6 N. C. C. A. 75n, 101, 102n; Michigan C. R. Co. V. Vreeland, 227 U. S. 59, 57 L. Ed. 417, 3 N. C. C. A. 807, Ann. Cas. 1914 C 176n ; Charleston & W. C. R. Co. v. Brown, — Ga. — , 79 S. E. 932; McAdow v. Kansas City W. E. Co., — Mo. App. — , 6 N. C. C. A. 76n, 206n, 233n, 164 S. W. 188 ; Hardwick v. Wabash R. Co., 181 Mo. App. 156; Montgomery v. Southern P. Ry. Co., 64 Ore. 597, 47 L. R. A. (N. S.) 13n; Horton v. Oregon, W. R. & N. Co., 72 Wash. 503, 3 N. C. C. A. 784, 47 L. R. A. (N. S.) 8n; Lauer v. Northern Pac. Ry. Co., — Wash. — , 145 Pac. 606. Contra: On 16 INJUEIES TO INTERSTATE EMPLOYES ON RAILEOADS on a question under the act are conflicting, then a state court will follow those decisions of the national courts which appear to it to rest on the better reason.^^ § 9. Laws of State Control as to Procedure. — In all actions under the Federal Employers' Liability Act prosecuted in the state courts, the rules of prac- tice and procedure are governed by the laws of the states where the cases are pending. ^'^ Questions as to whether amendments shall be permitted to petitions or answers; when motions to elect should be sus- tained or overruled; the rules of evidence; variances; excessiveness of verdicts and similar questions of practice and procedure, are matters to be determined solely by the state courts in accordance with the statutes of the state and their rules applying the same.^^ assumption of risk, Fish v. Chicago, E. I. & P. Ey. Co., — Mo. — , 172 S. W. 340; as to what is negligence under the act, Louisville & N. E. Co. V. Johnson, — Ky. — , 171 S. W. 847. (See § 18, infra.) 15. Euck V. Chicago, M. & St. P. Ey. Co., 153 Wis. 158, 6 N. C. C. A. 204n. 16. Brinkmeier v. Missouri P. Ey. Co., 224 U. S. 268, 56 L. Ed. 758, 3 N. C. C. A. 795n, aff'g same case reported in 81 Kan. 101; Fleming v. North C. E. Co., 106 N. C. 196, 6 N. C. C. A. 78n, 229n. 17. Wabash E. Co. v. Hayes, 234 U. S. 86, 58 L. Ed. 1227, 6 N. C. C. A. 224; &'outhern By. Co. v. Bennett, 233 U. S. 80, 58 L. Ed. 860; LouisviUe & N. E. Co. v. Moore, 156 Ky. 708, 4 N. C. C. A. 227n, 5 N. C. C. A. 771n; Louisville & N. E. Co. v. Strange, 156 Ky. 439, 6 N. C. C. A. 75n, 82n, 83n, 185n; Midland V. E. Co. v. Ennis, — Ark. — , 159 S. W. 215 ; Bouchard v. Central V. E. Co., 87 Vt. 399, 6 N. C. C. A. 78n, 81n; Bankson v. Illinois C. E. Co., 196 Fed. 171; Armbmster v. Chicago, E. I. & P. Ey. Co., — Iowa — , 6 N. C. C. A. 195n, 147 N. W. 337 ; Sweet v. Chicago & N. W. Ey. Co., 157 Wis. 400, 6 N. C. C. A. 78n, 94n, 232n, 451n; Burnett v. Atlantic C. L. Co., 163 N. C. 186, 6 N. C. C. A. 103n, 104n ; Tinkham v. Boston & M. E. Co., 77 N. H. Ill, 6 N. C. C. A. 81n, 233n; Atkinson v. Bullard, — Ga. — , SCOPE, VALIDITY AND EFFECT OF ACT 17 6 N. C. C. A. 80n, 183n, 80 S. E. 220 ; Louisville & N. R. Co. v. Stew- art, 156 Ky. 550, 6 N. C. C. A. 79n, 447n, 450n, 454n; Kansas City S. Ry. Co. V. Leslie, — Ark. — , 6 N. C. C. A. 446n, 447n, 453n, 454n, 167 S. W. 92; Winters v. Minneapolis & St. L. R. Co., — Minn. — , 6 N. C. C. A. 78n, 201n, 148 N. W. 106; Gibson v. Bellingham & N. Ry. Co., 213 Fed. 488; State statutes requiring notice of injury not applicable under Federal Act. El Paso & N. E. Ry. Co. v. Gutierrez, 215 U. S. 87, 54 L. Ed. 106. Boberts Liabilities— 2 CHAPTER II NEGLIGENCE UNDEE THE FEDERAL ACT § 10. The Statutory Provision. § 11. Two Branches of Negligence Under First Section. § 12. Negligence Criterion of Liability Under National Statute. § 13. Negligence Must Be Proximate Cause of Injury. § 14. Actionable Negligence Must Ha.ve Natural Relation to Employ- ment. § 15. Meaning of the Phrase ' ' In Whole or in Part. ' ' § 16. Recovery Cannot Be Defeated by Calling Plaintiff 's Act Proxi- mate Cause When Defendant's Negligence Is Part of Causation. § 17. Casualties Due to Sole Negligence of Employes. § 18. In Actions Under Federal Act Prosecuted in State Courts Decisions of National Courts Control in Determiniag Negli- gence — Contrary Rulings. § 19. Negligence of Human Agencies Not Limited to FeUow Servants as Construed Under Common Law. § 20. Statute Covers Negligent Act of Intrastate Employes and Defects in Instrumentalities Used Solely in Intrastate Com- merce. § 21. Negligence Need Not Be Proven When Violation of Federal Safety Appliance Act Is Cause of Injury. § 22. Applicability of Doctrine of Bes Ipsa Loquitur Under Federal Act — Conflicting Rulings. § 23. Cases Under Federal Act in Which the Facts Were Held to Show Actionable Negligence. § 24. Cases Under Federal Act in Which the Facts Were Held Not to Show Actionable Negligence. § 25. WUlful Wrongs Not Within Terms of Act. § 10. The Statutory Provisioii. — The first section of the Federal Employers' Liability Act provides that every common carrier by rail while engaging in interstate commerce and while the servant injured or killed is employed in such commerce, is liable ' ' for 18 NEGLIGENCE UNDER THE ACT 19 such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employes of such carrier, or by reason of any defect or insufficiency due to its negligence, in its cars, engines, appliances, machinery, track, road-bed, works, boats, wharves, or other equipments." § 11. Two Branches of Negligence Under First Section. — ^The clause relating to negligence in the first section of the federal act has two branches; one governing the negligence of any of the officers, agents or employes of the carrier, which abolishes the com- mon law fellow-servant doctrine; and the other relating to defects and insufficiencies due to negli- gence in the railroad's rolling stock, machinery, track, road-bed, works, boats, wharfs or other equip- ment. These two clauses, it has been held, cover any and all negligent acts of which the carrier could have been guilty under the common law.^ § 12. Negligence Criterion of Liability Under Na- tional Statute. — Except that it abolishes the common law rule of non-liability for injuries to employes within its terms due to negligence of fellow servants, the first section of the Federal Employee' Liability Act which defines when a carrier is liable, adopts the common law rule of negligence as to the two branches of liability mentioned. Under the act, the company is not a guarantor of the safety of the place of work or of the machineiy and appliances of the company. The extent of its duty to its employes, is, to see that ordinary care and prudence are exer- cised to the end that the place in which the work 1. DeAtley v. Chesapeake & O. E. Co., 201 Fed. 591, 20 INJURIES TO INTERSTATE EMPLOYES ON R.ULROADS is to be performed and the tools and appliances of the work may be safe for the workmen.- To convict a defendant railroad company nnder the first section as to defects, the plaintiff must prove the existence of the defect complained of; that it was a defect of such a character as to cause its existence to be a negligent failure on the part of the defendant and that the defect was the proximate cause of the injury.3 In the Horton case, cited in the notes, which is the leading case construing the first section of the federal act, defining when a carrier by railroad is liable, the plaintiff brought suit under the federal act in a state court in North Carolina. The statute of North Carolina provides that "any servant or em- ploye of any railroad company operating in this state who shall suffer injury to his person, or the personal representative of any such servant or employe who shall have suffered death in the course of his services or employment with such company by the negligence, carelessness or incompetence of any other servant, employe or agent of the company, or 2. Seaboard A. L. Ry. Co. v. Horton, 233 U. S. 492, 58 L. Ed. 1062, 6 N. C. C. A. 75n, 9on, 101, 102n, rev'g the same case reported iu 162 N. C. 424. 3. &'eaboard A. L. Ey. Co. v. Moore, 228 U. S. 433, 57 L. Ed. 907, 3 N. C. C. A, 812; Helm v. Cincinnati, N. O. & T. P. Ry. Co., 156 Ky. 240, 6 N. C. C. A. 83n, 84n; South Covington & C. St. Ry. Co. v. Finan's Adm'x, 153 Ky. 340. Accord, Long v. Southern Ry. Co., — Ky. — , 159 S. W. 779; Louisville & N. R. Co. v. Kemp, 140 Ga. 657, 6 N. C. C. A. 75n, 196n; Charleston & W. C. E. Co. v. Brown, 13 Ga. App. 744; Neil v. Idaho & W. N. E. Co., 22 Idaho 74; McCullough V. Chicago, R. I. & P. R. Co., — Iowa — , 6 N. C. C. A. 78n, 449n, 451n, 142 N. W. 67; Owens v. Chicago G. W. R. Co., 113 Minn. 49. NEGLIGENCE UNDER THE ACT 21 by any defect in the machinery, ways or appliances of the company, shall be entitled to maintain an action against such company. ' ' Notwithstanding the fact that the plaintiff was suing solely under the national statute, the trial court instructed the jury on the theory that this statute governed in deter- mining negligence under the federal act. Upon the issue of defendant's negligence, the charge to the jury was in part as follows : "It is the duty of the defendant to provide a reasonably safe place for the plaintiff to work, and to furnish him with reasonably safe appliances with which to do his work." An- other instruction given was: "If you find from the evidence that it (the locomotive engine) was turned over to him without the guard, and if you further find from the evidence that the guard was a proper safety provision for the use of that gauge, and that it was unsafe without it, then the defendant did not furnish him a safe place and a safe appliance to do his work, and if it remained in that condition it was continuing negligence on the part of the defendant, and if he was injured in consequence thereof, if you so find by the greater weight of the evidence, you should answer the first issue 'Yes.' " Condemning these instructions as being improper under the federal act, Mr. Justice Pitney, for the court, said : ' ' iVnd in various other forms the notion was expressed that the duty of defendant was abso- lute with respect to the safety of the place or work and of the appliances for the work. * * * jjj these instructions the trial judge evidently adopted the same measure of responsibility respecting the 22 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS character and safe condition of tlie place of work, and the appliances for the doing of the work, that is prescribed by the local statute. But it is settled that since Congress, b}" the act of 1908, took pos- session of the field of the employers' liability to em- I^loyes in interstate transportation by rail, all state laws upon the subject are superseded. Second Em- ployers' Liability Cases, 223 U. S. 1, 55 (56 L. Ed. 327, IN. CCA. 875, 38 L.R. A. [N.S.I 44). * * * It was the intention of Congress to base the action upon negligence only, and to exclude responsibility of the carrier to its employes for defects and insuf- ficiencies not attributable to negligence. The com- mon law rule is that an employer is not a guarantor of the safety of the place of work or of the machinery and appliances of the work ; the extent of its duty to its employes is to see that ordinary care and pru- dence are exercised, to the end that the place in which the work is to be performed and the tools and appliances of the work may be safe for the workmen. Hough V. Railway Co., 100 U. S. 213, 217 (25 L. Ed. 612); Washington & Georgetown Railroad Co. v. McDade, 135 U. S. 554, 570 (34 L. Ed. 235) ; Choctaw, Oklahoma & Gulf R. R. Co. v. McDade, 191 U. S. 64, 67 (48 L. Ed. 96). To hold that under the statute the railroad company is liable for the injury or death of an employe resulting from any defect or insufficiency in its cars, engines, appliances, etc., however caused, is to take from the act the words 'due to its negli- gence.' The plain effect of these words is to condi- tion the liability upon negligence; and had there been doubt before as to the common law rule, cer- NEGLIGENCE UNDER THE ACT 23 tainly the Act now limits the responsibility of the company as indicated. The instructions above quoted imposed upon the employer an absolute responsibility for the safe condition of the appli- ances of the work, instead of limiting the responsi- bility to the exercise of reasonable care. In effect, the jury was instructed that the absence of the guard glass was conclusive evidence of defendant's negli- gence. In this there was error. ' ' •* § 13. Negligence Must Be Proximate Cause of Injury. — For the plaintiff to recover under the Fed- eral Employers' Liability Act it is not sufficient that he prove negligence and injury under conditions within the terms of the act. To create a jury issue, the plaintiff must introduce proof tending to show that the alleged negligence was the proximate cause of the damage. The character of evidence necessary to prove such causation must depend largely upon the circumstances of each case. The inquiry whether proof having such tendency has been introduced, is not to be solved by indulging in mere surmises or conjecture or by resorting to imaginary possibili- ties, for to do so would but resolve the question to the generic rule of liability as an insurer. Applying these principles to a case under the act where the negligence charged was a violation of the national Hours of Service Act, the national Supreme Court 4. The court, in speaking of the liability under the Federal Act in this ease, was considering causes of injuries or deaths not included in the Federal Safety Appliance Act. If the cause of the injury or death of an employe on an interstate railroad is due to violation of the Federal Safety Appliance Act, no negligence need be shown. Section 21, infra. 24 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS held that proof of working overtime does not create an unconditional liability for accidents in the ab- sence of proof showing a connection between the accident and the working overtime.^ § 14. Actionable Negligence Must Have Natural Relation to Employment. — The carrier is not liable for every act of negligence causing injury to one employe by another. The negligent act causing the injury or death must have been committed while the employe at fault was in the prosecution of the car- rier's business. Where the negligent act which causes an injury to or the death of an employe had no relation whatever to the employment the carrier is not liable for the employe at fault must have been, when committing the act, within the scope of his employment.^ And if an employe is injured or killed at a time and place and from a cause disconnected with his employment for the carrier, the carrier is not liable for the statute requires the servant injured to have been at the time employed in inter- state commerce.^ 5. St. Louis, I. M. & S. Ey. Co. v. McWhirter, 229 U. &'. 265, 57 L. Ed. 1179, reversing same case reported in 145 Ky. 427; Helm v. Cincinnati, N. O. & T. P. R. Co., 156 Ky. 240, 6 N. C. C. A. 83n, 84n. 6. Hobbs V. C. N. Ey. Co., — Wash. — , 6 N. C. C. A. 84n, 90n, 142 Pac. 20; Eief v. Great N. Ey. Co., — Minn. — , 148 N. W. 309; Mis- souri, K. & T. Ey. Co. V. West, — Okla. — , 134 Pac. 655 ; Cincinnati, N. O. & T. P. Ey. Co. v. Wilson, — Ky. — , 171 S. W. 430; Eeeve v. Northern P. Ey. Co., — Wash. — , 144 Pac. 63; Martin v. Atchison, T. & S. F. Ey. Co., —Kan. — , 145 Pac. 849; Moyse v. Northern P. Ey. Co., 41 Mont. 272. 7. Padgett v. Seaboard A. L. Ey. Co., — S. C. — , 83 S. E. 633; Sanders v. Charleston & W. C. Ey. Co., — S. C. — , 6 N. C. C. A. 200n, 81 S. E. 283; Ewald v. Chicago & N. Wu E. Co., 70 Wis. 420, 5 Am. &t. Eep. 178; Hurst v. Chicago, R. I. & P. E. Co., 49 Iowa 76; Dickinson v. West End St. E. Co., 177 Ma^s, 365, 52 L. E. A. 110. NEGLtlGENCE UNDER THE ACT 25 In Reeve v. Northern P. Ry. Co., cited in the notes, plaintiff was a laborer in the employ of the railroad company and, as a part of his duties, supplied bag- gage cars of the defendant with water and fuel. When injured he was sitting on the floor of a bag- gage car in the door with his feet hanging outside of the door resting on the iron steps or stirrups which hung below. While so sitting two other employes of the company began wrestling or scuffling in the body of the car and while so engaged, whether inten- tional or not does not appear in the evidence, one of them brushed against or pushed the plaintiff, causing him to fall to the ground and he sustained injuries. Under these facts, in an action under the Federal Employers' Liability Act, the court, in de- nying a recovery, held that a raili'oad company was not liable unless the negligent act occurred while the employes were doing some act required of them in the prosecution of the carrier's business and that the federal statute was not intended to cover neg- ligent acts of an employe in no way connected with the business, the prosecution of which he was em- ployed to aid. In Sanders v. Charleston & W. C. Ry. Co., also cited in the notes, the plaintiff was a track laborer and during working hours assisted a gang in relay- A brakeman on an interstate train after reaching the terminal with his train and before he was discharged for the day, went into a saloon near the railroad yards to get a drink. While returning to the yards he was struck and injured by a car, due to the negligence of other employes. The court held that notwithstanding the fact that he was returning from a personal errand, he was nevertheless em- ployed in interstate commerce. Grober v. Duluth, S. S. & A. By. Co., — Wis. — , 150 N. W. 489. 26 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS ing rails on the defendant 's lines of railway and had been so engaged for some weeks. At night he slept on a bunk in a shanty car on a work train which stood on a side track. While asleep at night in that car he was injured in a collision with another train. The Supreme Court of South Carolina, under these facts, held that the plaintiff at the time of his injury was engaged in interstate commerce. In answering the contention of counsel that the plaintiff was not at the time employed in interstate commerce, the court said: "When the plaintiff was in the bunk of his shanty in 'sleep that knits up the ravelled sleeve of care' and getting strength to lay rails next day, the law imputed to him actual service on the track and extended to him the rights of such a worker; 'for the letter (of the law) killeth but the spirit giveth life.' " Notwithstanding the pre- eminent authority cited and quoted from to fortify the decision, the ruling of the court in this case was palpably erroneous, for railroad employes while asleep at night and not on duty are not then "em- ployed by the carrier in interstate commerce," no matter whether they are taking their rest and sleep in their own homes or in places furnished them by the railroad company by reason of the transitory nature of their work. In Padgett v. Seaboard A. L. Ry. Co., cited, an- other case decided by the Supreme Court of South Carolina, an engineer came into a roundhouse with his engine at 10 :30 p. m. His regular course of duty required him to leave the same place at 6:00 o'clock on the next morning. Close to the roundhouse the NEGLIGENCE UNDER THE ACT 27 railroad company had a small boarding house for the convenience of its trainmen, but it was managed by a private party. The engineer after leaving his engine at the roundhouse, found the boarding house was full and he then returned into the roundhouse and, climbing into an engine, went to sleep. About 4:30 a. m. the engine in which he was asleep was taken out of the roundhouse to a coal chute in the yards. There the engineer waked up and got off of the engine. He inquired where his engine was and was told that it was in the roundhouse on a certain track. He was last seen alive going towards the roundhouse. At the time he was due to leave that morning he could not be found and his train departed without him. Later in the morning he was found in an open uncovered pit in the roundhouse, dead. His engine had been standing with the step over this pit, which was about eight feet deep. In an action for damages brought under the federal act for his death it was contended that he was not at the time em- ployed in interstate commerce. There was evidence introduced to show that the engine when it was brought into the yard the night before needed re- pairs and that the rules required the engineer to inspect his engine about half an hour before leaving time. There was no evidence that the engineer was forbidden to inspect his engine before that time; but there was evidece that if the inspection at the required hour disclosed the repairs had not been made, the engine would have to be returned to the roundhouse for that purpose and that the repairs woujd require time and cause delay. Under these 28 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS facts the court held that the jury was justified in finding that the engineer at the time of his death was employed in interstate commerce, Judges Hydrick and Gage dissenting. In Cincinnati, N. O. & T. P. Ry. Co. v. Wilson, cited in the notes, a section foreman on a train stand- ing on the passing track at a station, erroneously thinking that another train approaching at a rapid rate of speed was about to collide with it, warned Ms men to jump, which they did, the foreman with them. The decedent, one of the section men under him, ran across the main line of the railroad at that place and was struck and killed by the other train. Answering a contention that the foreman was not acting within the course of his employment, the court held that the act of the foreman in shouting and warning the men was one within the scope of his employment and was an act fairly imputable to the master imposing legal liability therefor. In Rief v. Great N. Ry. Co., cited in the notes, the plaintiff was a ''student brakeman" receiving no compensation from the railroad company. For 12 days previous to the injury he had been upon defend- ant 's trains in that capacity. At the time he entered upon his course of learning he signed a written state- ment in which he agreed that he should receive no compensation and that he would not be held to be a servant but a licensee upon the property of the de- fendant. He was injured while attempting to de- scend from a box car to throw a switch by striking a coal chute close to the track. In an action under the federal act the court held that the plaintiff was NEGLIGENCE UNDER THE ACT 29 an employe of the defendant as a matter of law, as the testimony showed that he was expected to per- form and did perform such tasks as were assigned him by members of the crew in charge of the trains. He helped load and unload freight at way stations, threw switches and did whatever he was ordered to do in the operation of a train. In Hobbs v. Great N. Ry. Co., cited in the note, the decedent was killed while riding upon the pilot of an engine. He was a hostler's helper and his last work was placing sand in the engine. In doing this work the deceased was not required to ride on a pilot. No one knew why he stepped upon the pilot. The engine in moving collided with the footboard of another switch engine, which was not visible be- cause of escaping steam, and this caused decedent's death. There was a rule of the railroad company forbidding employes to ride on engine pilots and the decedent in addition had been specifically told not to ride on pilots. The court in denying that the rail- road company was liable, said: "The rule of lia- bility against a railway company engaged in inter- state commerce is predicated upon the duty of the company to furnish its servant with a reasonably safe place in which to perform the work it requires of him or while he has to be in those places which are incident to his work, and this duty is incident to all places where the employe must necessarily be in connection with his employment. But that duty is not incident to his place where a servant is not re- quired to be nor expected to be in the performance of his worl^ Nor does it cover the servant when 30 IN JUEIES TO INTERSTATE EMPLOYES ON EAILBOADS he is not witliin the scope of his employment or doing some act which is not incidental to his employment. This rule is sustained by all authorities and the fed- eral act in no wise attempts to change it. Unless the evidence in this case shows that the deceased was upon the pilot of his engine in discharge of some duty required by the railroad company, then the railroad company owed him no duty except to avoid injuring him after it discovered his perilous posi- tion. Such is so clearly the law that it will not be doubted and no authorities need be cited to sustain it. There is no evidence in this record that the deceased was required to do any act which would place him upon the pilot of the engine. All the evi- dence on this subject is to the contrary. So far as we can find, whatever it was that caused him to step upon the pilot, it was his own purpose, not in any way connected with his work as a hostler's helper. If it was his purpose to engage in any task, so far as this record gives, in so doing he was a volunteer without appellant's direction or knowledge and so far as the law is concerned the result is the same. li we could find anything in the evidence which would justify a different conclusion, however meager it might be, we would submit to the verdict as deter- minative of the fact. But we cannot find it and such being the case, however unfortunate or distressing the circumstances may be, it is our duty to so hold." §15. Meaning of the Phrase "In Whole or in Part." — Liability is shown under the federal act when the plaintiff proves that the injury or deatli was due either "in whole or in part" to negligence NEGLIGENCE UNDER THE ACT 31 of the defendant. This phrase is an adoption of the common law doctrine of concurrent causes. Al- though causes for which the carrier is not liable, contributed directly to produce the injury, yet if a cause for which the carrier is liable, that is, a negli- gent act of any other employe or a defect or insuf- ficiency due to negligence in equipment or works, contributes also as cause, without which the injury would not have occurred, the carrier is still liable. The quoted phrase means nothing more or less than that the negligent act of the carrier must be the proximate cause of the injury and in cases of doubt, to ascertain when a negligent act is the proximate cause under the federal law, decisions of courts pass- ing upon such questions under the conunon law, are applicable.^ § 16. Recovery Cannot Be Defeated by Calling Plaintiff's Act Proximate Cause When Defendant's Negligence Is Part of Causation. — There can be no recovery under the federal act when the injury is due solely to the negligence of the injured servant. A\Tien the- defendant's act is no part of the causation, then it is not liable; but if the injury resulted in whole or in part from the company's negligence, the statute cannot be nullified and the right of recovery 8. Union P. R. Co. v. Fuller, 122 C. C. A. 359, 204 Fed. 45; Bowers v. Southern Ry. Co., 10 Ga. App. 367, 1 N. C. C. A. 841n; Louisville & N. R. Co. v. Wene, 202 Fed. 887; Shugart v. Atlantic, etc., Ry. Co., 66 C. C. A. 379, 133 Fed. 505; Choctaw, etc., Ry. Co. v. Hoolaway, 191 U. S. 334, 48 L. Ed. 207; Milwaukee, etc., R. R. Co. V. Kellogg, 94 U. S. 469, 24 L. Ed. 256; Travelers' Ins, Co. v. Melick, 12 C. A. A. 544, 65 Fed. 178, 27 L. R. A. 629; St. Louis, I. M. & S. Ry. Co. V. Needham, 16 C. A. A. 457, 69 Fed. 823; Mis- souri, etc., Ry. Co. v. Byrne, 40 C. A. A. 402, 100 Fed. 359. 32 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS defeated by calling the plaintiff's act the proximate cause of the injury.^ § 17. Casualties Due ta Sole Neglig^ence of Em- ploye, No Recovery Under Federal Act. — If the sole cause of an employe's injury or death is his own act whether negligent or not, there can be no recovery under the federal act.^*' For instance, a recovery was denied upon this principle under the following facts: Deceased, a flagman, was sent by a bridge foreman a certain distance on the track from a bridge on which repairs were being made, to protect the bridge crew by "flagging" all passing trains. While on duty he was struck and killed by a train approaching from the direction of the bridge. In an action for damages under the federal act, it was claimed that his death was due in part to the neg- ligence of the employes in charge of the train in failing to keep a lookout and to give a reasonable warning of the approach of the train; but the court held that the defendant did not owe the decedent the duty of keeping a lookout for him and as there was no evidence that the train operatives actually saw him in a position of peril in time to have, by exercising ordinary care, prevented his death, a ver- dict of the jury for defendant was approved. In the course of the opinion, the court said : ' ' When a flag- 9. Pankey v. Atchison, T. & S. F. R. Co., 180 Mo. App. 185; Grand Trunk W. Ey. Co. v. Lindsay, 120 C. C. A". 166, 201 Fed. 836; s. c, 233 U. S. 42, 58 L. Ed. 838, 6 N. C. C. A. 90n, 91n, Ann. Cas. 1914 C 168n; Louisville & N. E. Co. v. Wene, 202 Fed. 892; Spokane & I. E. E. Co. V. Campbell, 217 Fed. (C. C. A.) 518. 10. Grand T. W. Ey. Co. v. Lindsay, 233 U. &'. 42, 58 L. Ed. 838, 6 N. C. C. A. 90n, 91n; Ann. Cas. 1914 C 168n. NEGLIGENCE UNDER THE ACT 33 man is sent out to watch for trains and warn them of danger, the company and its trainmen have a right to presume that he will not only watch for trains but also for his own safety and his failure to do this is his own negligence" and "if one's death is caused solely by his own negligence, he cannot recover under either the state law or the Federal Employers ' Liability Act."" In another case under the federal act the Kansas City Court of Appeals held that there was no liabil- ity for the death of a brakeman who, having signaled the engineer to slow down the speed of a backing train on a curve at night voluntarily placed himself in a place of danger between the moving cars and a freight loading platform where he could not signal the engineer and could not have been seen by him because of the curve, and was crushed to death be- tween the platform and a side of a moving car as he was attempting to vault onto the platform. There was a safe place for the decedent to stand on the opposite side of the track where there was no ob- struction. Discussing the legal effect of these facts. Judge Trimble, for the court, said: "Under the (Federal) Employers' Liability Act, if there was negligence on the part of the defendant, contributory negligence of the deceased does not bar a recovery but only diminishes the damages in proportion to the amount of negligence attributable to such em- ploye. Where, however, there is no negligence on the part of the master, but the injury is solely the 11. Ellis V. LouisvUle, H. & St. L. E. Co., 155 Ky. 745, 6. N. C. C. A. 103n, 54311. Roberts Liabilities — 3 34 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS result of the employe's negligence, tliere can be no recovery. That such is the case here we think there can be no donbt. Pankey gave the slow signal and theil went from a place of safety and, without notice or intimation to anyone, placed himself in an ex- ceedingly dangerous situation. He was not required to do this in the performance of his work. And, when the danger of his situation evoked a warning from his conductor, he voluntarily chose a danger- ous instead of an easier and a surely safe way out. This last was in itself negligence." ^- § 18. In Actions Under Federal Act Prosecuted in State Courts, Decisions of National Courts Control in Determining Negligence — Contrary Rulings. — Prior to the enactment of the Federal Employers' Liability Act, state courts as well as national courts had uniformly held that in construing and inter- preting all federal statutes, the state courts were controlled by the decisions of the national courts. ^^ Adopting the same principle, in all actions prose- cuted in the courts of one state for injuries occurring in another state, the construction which the courts of the latter state placed upon common law princi- ples of negligence has uniformly been followed by the courts where the actions were prosecuted al- though different from their own interpretation and 12. Pankey v. Atchison, T. & S. F. R. Co., 180 Mo. App. 185. 13. Haseltine v. Central Nat. Bank, 155 Mo. 66; Gilmore v. Sapp, 100 111. 297; First Nat. Bank v. Turner, 154 Ind. 497; Board of Trustees v. Cuppett, 52 Ohio St. 567; Hall v. Hall, 41 Wash. 186; Bank of Garrison v. Malley, 103 Tex. 562; Beckman Lumber Co. v. Acme Hai-vester Co., 215 Mo. 221; Elwell v. Hicks, 180 lU. App. 554; Pecos & N. T. Ry. Co. v. Cox, 105 Tex. 40. NEGLIGENCE UNDER THE ACT 35 construction of the common law.^^ But in deter- mining when a carrier by railroad is guilty of negli- gence under the Federal Employers' Liability Act, at least one court has carved out an exception to the general rule that the decisions of the national courts do not control in construing a national statute.^^ In Louisville & N. R. Co. v. Johnson, cited in the notes, the court held that in determining negligence under the national statute, if the evidence is suf- ficient to support a verdict under the state law, it is sufficient under the federal statute. The language of the court in the opinion on this point is as follows : '*In administering the Federal Employers' Liability iVct in our courts, we think the practice and pro- cedure followed in the trial of common law actions generally should be observed in the trial of cases under this act. C. & 0. R. Co. v. Kelley, 160 Ky. 296, 169 S. W. 746. In other words, excepting so far as 14. Chandler v. St, Louis & S. F. E. Co., 127 Mo. App. 34; Eoot V. Kansas City S. Ey. Co., 195 Mo. 348, 6 L. E. A. (N. S.) 212n; Alexander v. Pennsylvania E. Co., 48 Ohio St. 623; State to use of Allen V. Eailway, 45 Md. 41 ; Pullman Co. v. Lawrence, 74 Miss. 782 ; Bewster v. Chicago N. W. Ey. Co., 114 Iowa. 144, 89 Am. &'t. Eep. 348; Koecher v. Minneapolis, St. P. & S. S. M. Ey. Co., 122 Minn. 458; White v. Seaboard A. L. Ey. Co., — Ga. — , 80 S. E. 667; Western U. T. Co. v. White, — Tex. Civ. App. — , 5 N. C. C. A. 377n, 162 S. W. 905. 15. Gray v. Southern Ey. Co., — N. C. — , 83 S. E. 489 (Brown and Walker, J.J., dissenting) ; Louisville & N. E. Co. v. Johnson, — Ky. — , 171 S. W. 847; Helm v. Cincinnati, N. O. & T. P. Ey. Co., 156 Ky. 240, 6 N. C. C. A. 83n, 84n; contra, Hardwiek v. Wabash E. Co., 181 Mo. App. 156; McAdow v. Kansas City W. Ey. Co., — Mo. App. — , 6 N. C. C. A. 76n, 206n, 233n, 164 S. W. 188 ; Nashville C. & St. L. Ey. Co. V. Henry, 158 Ky. 88, 4 N. C. C. A. 495n, 6 N. C. C. A. 99n, 106n; Dooley v. Seaboard A. L. Ey. Co., 163 N. C. 454, 6 N. C. C. A. 440n, 442n, 452n; Peery v. Illinois C. E. Co., 123 Minn. 264, 6 N. C. C. A. 184u ; s. c, — Minn. — , 150 N. W. 382. 36 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS tlie act itself modifies or changes rules of practice and procedure or substantive law, cases arising under the act should be heard and determined in the state courts in the same manner as would like cases arising under the law prevailing in this state. If the evidence in a case heard and detennined under this act would be sufficient to take the case to the jury and support the verdict if the suit had been brought under the state law, it would be sufficient to take the case to the jury and support the verdict if it was brought under the Federal Act." It is true that the law of procedure of the state where the action is pending governs in all cases under the Federal Act ^^ but as to ' ' substantive law ' ' referred to in this opinion, the decision is in conflict with prior rulings of the national Supreme Court.^" In the McWhirter case, cited in the notes, it was spe- cifically held that the question of whether a demurrer to the evidence should have been sustained or over- i-uled, was a federal question to be determined in conformity with the rulings of the United States Supreme Court. In the Horton case, also cited in the notes, the trial court, on the question of negligence, in instruct- ing the jury, formulated the charge in conformity with the law of the state. This was declared errone- 16. Section 9, supra. 17. Seaboard A. L. Co. v. Horton, 233 U. S. 492, 58 L. Ed. 1062, 6 N. C. C. A. 75n, 95n, 101, 102n; St. Louis, I. M. & S. Ey. Co. v. McWhirter, 229 U. S. 265, 57 L. Ed. 1179, reversing same case reported in 145 Ky. 427. The Kentucky Court of Appeals reaffirmed the ruling made in LouisviUe & N. K. Co. v. Johnson, supra, in the later case of Louisville & N. E. Co. v. Winkler, — Ky. — , 173 S. W^. 151, decided February 18, 1915. NEGLIGENCE UNDER THE ACT 37 ous, the court saying: ''In these instructions the trial judge evidently adopted the same measure of responsibility respecting the character and safe con- dition of the place of work and the appliance for the doing of the work that is prescribed by the local statute. But it is settled that since Congress, by the Act of 1908, took possession of the field of the employers' liability to employes in interstate trans- portation by rail, all state laws upon the subject are superseded." In Helm v. Cincinnati, N. 0. & T. P. Ry. Co., cited in the notes, the court held that since the Federal A;ct did not undertake to define negli- gence and in no way limited the application of the common law rule upon the subject and since there was no federal common law, it was the common law of the state where the accident occurred, to which the court must look in determining whether the acts complained of amount to negligence. If the doc- trine announced in this case is followed, then it will often result that an act will be declared negligent in one state and not negligent in another state under the same law, that is, the federal act. Such discrimi- nation would defeat one of the main objects of the national statute — one uniform rule of liability in all the states where a carrier by railroad is engaged in interstate commerce to its servants while employed in such commerce. It is true that prior to the enact- ment of the Federal Employers' Liability Act, there was no federal common law; but it has been held by the United States Supreme Court in the Horton case, cited, supra, that Congress in passing the Fed- eral Employers ' Liability Act, adopted the rules and 38 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS principles of the common law in determining when a carrier was negligent, nnder the first section of the act, with the exception that the common law fellow- servant doctrine was abolished. It would seem, therefore, that the decisions of the national courts in construing the national statute should control in determining negligence under the act and in con- struing and interpreting the common law principles concerning negligence so that there may be one rule of liability under this law, when applicable, in all state courts. Certainly there must be some con- trolling authority in determining negligence under this act and if these questions are left to be deter- mined according to the admittedly conflicting de- cisions of the courts of the several states, whose rulings are paramount and exclusive in their own jurisdiction, the question as to when a carrier is negligent under the federal statute would become a matter of the geography of the states and not of a one supreme law applying uniformly within its ex- clusive domain. Recognizing the inapplicability of state laws in determining negligence under the fed- eral statute, the Kentucky Court of Appeals in an- other case and also the Georgia Court of Appeals held that a law, providing that upon proof of an accident the presumption of negligence arises, did not control in an action for damages under the fed- eral statute. ^^ The question under consideration is a vital one under the act and it has not apparently been directly 18. Charleston & W. C. R. Co. v. Brown, — Ga. — , 79 S. E. 932; South Covington & C. St. Ey. Co. v. Finan 's Adm 'x, 153 Ky. 340. NEGLIGENCE UNDER THE ACT 39 decided by the Supreme Court of the United States. However, in the case of Gray v. Southern Ey. Co., cited in the notes, the question is discussed at length in the dissenting opinion in the light of the federal decisions. The court in the majority opinion did not apparently deny that the federal decisions con- trolled but held that under the facts of that case the decisions of the federal and state courts were in harmony and did not conflict. On this question, Judge Brown, in the minority opinion, dissented, but also analyzed and discussed the question of the controlling effect of the federal decisions in deter- mining negligence under the federal act as follows: '*In administering the Federal Liability Act, the state courts are bound by the construction and de- cisions of the federal courts. Since Congress has taken possession of the field of employers' liability to employes in interstate transportation by rail, all state laws upon the subject are superseded. Sea- board Air Line Ry. Co. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062 (6 N. C. C. A. 75n, 95n, lOln, 102n) ; Mondou v. Ry. Co., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327 (1 N. C. C. A. 875), 38 L. R. A. (N. S.) 44. Not only have state statutes been made inapplicable, but the common law as well, where a construction has been placed upon it by the state courts differing from that of the federal courts. South Covington R. Co. v. Finan, 153 Ky. 340, 155 S. W. 742; W. U. Tel. Co. v. Milling Co., 218 U. S. 406, 31 Sup. Ct. 59, 54 L. Ed. 1088, 36 L. R. A. (N. S.) 220, 21 Ann. Cas. 815. This subject is elaborately and ably discussed by Mr. Justice Myers of the Su- 40 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS preme Court of Indiana and in the recent casse of So. Ry. V. Howerton (— Ind. — 6 N. C. C. A. 75n, 82n), 105 N. E. 1026, where all the authorities are collected. Under the law, as applied by the federal courts, the defendant is liable if it could have avoided the injury by the exercise of ordinary care, only after actually discovering the perilous situa- tion. Little Eock R. & E. Co. v. Billings, 173 Fed. 903, 98 C. C. A. 467 (5 N. C. C. A. 152, 153n), 31 L. R. A. (N. S.) 1031, 19 Ann. Cas. 1173; note 55 L. R. A., page 424; Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270; Newport News & M. V. Co. V. Howe, 52 Fed. 362, 3 C. C. A 121; Dunworth V. Grand Trunk Western Ry. Co., 127 Fed. 307, 62 C. C. A. 225; N. Y., N. H. & H. R. v. Kelly, 93 Fed. 745, 35 C. C. A. 571; Smith v. R. R. Co., 210 Fed. 414, 127 C. C. A. 146. In Newport News & M. V. Co. v. Howe, supra, the plaintiff was a brakeman on a freight train; the train parted and the engine, with the forward portion of the train, ran some distance ahead before the accident was discovered. The con- ductor on the rear portion of the train sent Howe ahead with a lantern to signal the engine, and to give the engineer information as to the whereabouts of the rear cars. Howe went forward several hundred yards, sat down on the end of a tie, put his light down near him, and went to sleep with his arm thrown over the rail. The engineer, after running about five miles, discovered the parting, and started back with his engine and tender to take up the rest of the train. The fireman testified that when within a distance of between 100 and 200 feet from the NEGLIGENCE UNDER THE ACT 41 point where Howe lay, he saw the reflection of the light from Howe's lamp. He called to the engineer: I 'Look out, there they are' — meaning the rear por- ;! tion of the train. Hte looked again and saw on the "other side of the track an object which he took to ;^be the brakeman waiting to step on the engine. He ^crossed to the engineer's side, and then saw the prostrate man only 10 or 15 feet from the approach- ing engine. He signalled the engineer, who applied the brakes, but was unable to stop before the wheels had passed over Howe 's arm and cut it off. A wit- ness, McGuire, testified that the engineer did not -look out of the cab window, and that if he looked out, he would have seen Howe, and could have stopped the engine in time to avoid the accident, /rhe rules of the company required the engineer, limder these conditions, to signal his return by blow- ing his whistle at certain intervals, and not to run >at a higher speed than four miles per hour. Both of : these rules were being violated. Judge Taf t, writing 'the opinion, says: 'While * * * an engineer 'who fails to keep a sharp lookout upon the track is wanting in due care to passengers and lawful travel- ers, because of the probability of danger to each from such failure, such conduct is not a want of due care with respect to a man asleep upon the track, because of the presumption, upon which the engineer has a right to rely, that no one would be so grossly negligent in courting death. * * * As applied to a case like the present, therefore, we believe the rule relied on by counsel for plaintiff below should be construed to mean that the negligence of the 42 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS plaintiff will be no defense if the defendant, after he knew the peril of the plaintiff, did not use due care to avoid it.' This case cites Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270, and referring to that case, Judge Taft says: "This would seem to show that, in the opinion of the Su- preme Court, knowledge of plaintiff's peril was re- quired to make the rule applicable. ' In Little Rock, E. & E. Co. V. Billings, supra, the court, composed of Justices Sanborn, Pollock and Van Devanter, the latter of whom is now a justice of the Supreme Court of the United States, said: 'As deduced from the foregoing authorities, and many others that might be cited, this qualification may be stated as follows : A, who by his own negligent act or conduct has placed himself in a position of imminent peril, of which he is either unconscious, or from which he is unable to extricate himself if conscious, may not be carelessly, recklessly, or wantonly injured by B, whom after he has discovered and knows the helpless and perilous condition of A, has it within his power to avoid doing him an injury by the exercise of rea- sonable care, and diligence in the use of such instru- mentalities as he can command; and the failure to exercise such reasonable care and diligence on the part of B, under such circumstances, will constitute actionable negligence, rendering him liable in dam- ages to A, notwithstanding the prior negligent act of A, in placing himself in position to receive the injury. ' To my mind, it is quite plain that, in charg- ing the jury upon the measure of the engineer's duty. NEGLIGENCE UNDER THE ACT 43 the trial judge should have followed the federal and not the state rule." § 19. Negligence of Human Agencies Not Limited to Fellow Servants as Construed Under Common Law. — Under the first section of the federal act a carrier by railroad is liable for the negligence of any of its officers or employes and the statute does not confine the negligent acts of employes for which it is liable, to such servants as under the common law were construed to be fellow servants of the injured employe. ^^ In the case of DeAtley v. Chesapeake & 0. By. Co., cited in the notes, a brakeman on a train carrying interstate shipments was ordered to leave the train at a certain signal tower to get the train orders for the movement of the train and while returning with the orders he attempted in the usual and customary way to get on the train while it was moving, but missed his footing, fell and was injured. In his petition under the federal act he alleged, among other things, that the defendant was negligent in failing to adopt rules requiring all trains to be stopped so that brakemen would not be compelled to get on them while in motion. It was contended by the railroad company that this failure to adopt such a rule was not such a negligent act as was covered by the Employers' Liability Act for the reason that it was not the negligent act of a fellow servant; but the court held that the words in the statute "of- ficers, agents and employes" were not limited to 19. DeAtley v. Chesapeake & O. Ry. Co., 201 Fed. 591. 44 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS fellow servants as construed under the common law doctrines, but included any and all agents or officers of the company whose duty it was to adopt and promulgate rules governing the operation of trains. The court said: "It (defendant) can only act through officers, agents and employes and the fail- ure to look after such condition properly is neces- sarily negligence on the part of officers, agents and employes to whom it has intrusted the duty of look- ing thereafter. The two classes seem, therefore, to overlap, but I do not think that one is justified in limiting the language of the first class to prevent overlapping, which would be done by limiting the first class to the negligence of servants for which the common carrier is not liable at common law, leaving the second class to cover the negligence of servants for whom it is in such cases as it covers. * * * It seems to me that it was the intent and purpose of the act to cover every negligence for which a common carrier engaged in interstate com- merce might be liable to its employes in such com- merce. ' ' § 20. Statute Covers Negligent Act of Intrastate Employes and Defects in Instrumentalities Used Solely in Intrastate Commerce. — It is not essential, to permit a recoveiy under the national act, that the employe whose negligence caused the injury be also employed in interstate commerce or that the instru- mentality, the defect in which caused the injury, be used at the time in interstate commerce. Instances where the causal negligence is that of a coemploye engaged at the time solely in intrastate commerce or NEGLIGENCE UNDER THE ACT 45 where the instrumentality causing the injury was used at the time exclusively in intrastate commerce, are embraced within the terms of the act, if the other conditions are present, that is, if the carrier was engaged in interstate commerce and if the injured employe at the time was employed in interstate com- merce. The statute gives a right of recovery under such conditions for injury or death resulting from the negligence of any of the employes. ^*^ In the Peder- son case, cited in the notes, the court said: ''But it is not essential where the causal negligence is that of a coemploj^e that he also be employed in such commerce, for, if the other conditions be present, the statute gives a right of recovery for injury or death resulting from the negligence 'of any of the em- ployes of such carrier' and this includes an employe engaged in intrastate commerce. ' ' An appellate court in New Jersey rendered an er- roneous decision on the question of applicability of the federal act which was due in part to a failure to recognize this principle.^^ In that case the plaintiff was injured while placing a cover over the mechan- ism of a switch which he had just oiled. The switch connected with tracks used indiscriminately in mov- ing both kinds of commerce. While so engaged the plaintiff was struck by a car used at the time solely 20. Mondou v. New York, N. H. & H. R. Co., Second Employers' Liability Cases, 223 U. S. 1, 56, 56 L. Ed. 327, 1 N. C. C. A. 875, 38 L. R. A. (N. S.) 44; Pederson v. Delaware, L. & W. R. Co., 229 U. S. 146, 57 L. Ed. 1125, 6 N. C. C, A. 198n, 924n, Ann. Cas. 1914 C 153n; Colasurdo v. Central R. Co. of New Jersey, 180 Fed. 832. 21. Granger v. Pennsylvania R. Co., — N. J. — , 86 Atl. 264. 46 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS in intrastate commerce. It was held that there could be no recovery under the federal act for two reasons, one of them given by the court was that the car was not used in interstate commerce. This ruling was erroneous for it is immaterial whether the instru- mentality which caused the injury was at the time being used in interstate commerce. In a case which has been very frequently cited the rule on this feature is clearly stated as follows : "I am therefore of the opinion that the plaintiff was at the time engaged in interstate commerce and enti- tled to the rights secured by this act. (Plaintiff was repairing a switch on tracks used indiscriminately for both kinds of commerce.) That being so, it is a matter of no consequence whether the train that struck him was engaged in that commerce or not. It is true that the act is applicable to carriers only 'while engaged' in interstate commerce, but that includes every activity when they are engaging in such commerce by their own employes. In short, if the employe was engaged in such commerce, so was the road, for the road was the master and the serv- ant's act its act. The statute does not say that the injury must arise from an act itself done in in- terstate commerce, nor can I see any reason for such an implied construction." ^^ §21. Negligence Need Not Be Proven when Vio- lation of Federal Safety Appliance Act Is Cause of Injury. — In any action under the Federal Employ- ers' Liability Act, where the cause of the injury or 22. Colasurdo v. Central E. Co. of New Jersey, 180 Fed. 832, affirmed in 113 C. C. A. 379, 192 Fed. 901. NEGLIGENCE UNDER THE ACT 47 death is shown to have been due to any violation of the several sections of the Federal Safety Appliance Act, the plaintiff is not required to show negligence, for, as now construed by the courts, the Federal Safety Appliance Act imposes an absolute duty upon the carrier to comply with the terms thereof in the equipment of its cars, and if any failure to comply with the law causes injury or death, the carrier is absolutely and unconditionally liable for the result- ing injury without regard to the question whether the defect was or was not due to negligence or could have been discovered by reasonable diligence. In other words, the carrier is liable if any violation of the Federal Safety Appliance Act causes injury even though the defect could have been prevented by any degree of diligence. That law does away with the common law rule making liability depend upon neg- ligence and makes the carrier absolutely liable for any injury resulting from the use of a car not equipped as provided by that act or by the orders of the Interstate Commerce Commission, made pur- suant to the authority therein delegated to that body. In one case, Mr. Justice Moody, speaking for the Supreme Court, said: "If the railroad company itself in point of fact, use cars which do not comply with the standard, it violates plain prohibitions of the law and there arises from that violation the lia- bility to make compensation to one who is injured by it. "23 23. St. Louis, I. M. & S. Ey. Co. v. Taylor, 210 U. S. 281, 52 L. Ed. 1061; Chicago, B. & Q. R. Co. v. United States, 220 U. S. 559, 55 L. Ed. 582; Brinkmeier v. Missouri P. Ey. Co., 81 Kan. 101; s. c, 224 U. S. 268, 56 L, Ed. 758, 3 N. C. C. A. 795n ; Atlantic C. L. Ey. 48 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS §22. Applicability of Doctrine of Res Ipsa Lo- quitur Under Federal Act — Conflicting Rulings. — Whetlier the doctrine of res ipsa loquitur is applica- ble in an action for damages under the federal act where the particular facts of a case permit the appli- cation of such a rule of evidence under the general law, has been the source of conflicting decisions. The supreme courts of Minnesota and North Caro- lina have held in actions of negligence between master and servant under the federal act that the doctrine under the usual and proper evidenciar^^ circumstances applies.^^ On the other hand the Fed- eral Circuit Court of Appeals for the Eighth Circuit decided that the doctrine of res ipsa loquitur was not applicable in actions by employes against car- riers by railroad under the federal act.^^ The de- cision of the court in the Fulgham case, cited in the notes, was based upon former decisions of other national courts including the Supreme Court of the United States in actions of general negligence but not under the Federal Employers' Liability Act. The national courts prior to the passage of the Fed- eral Act had uniformly held that the evidential rule Co. V, United States, 94 C. C. A. 35, 168 Fed. 175 ; United States v. Atchison, T. & S. F. Ey. Co., 90 C. C. A. 327, 163 Fed. 517; Chicago, R. I. & P. Ry. Co. V. Brown, 229 U. S. 317, 57 L. Ed. 1204, 3 N. C. C. A. 826, aflfirming the same case reported in 107 C. C. A. 300, 185 Fed. 80, which affirmed the same case reported in 183 Fed. 80; Wis- consin V. Chicago, M. & St. P. Ey. Co., 136 Wis. 407. 24. Wiles V. Great N. Ey. Co., 125 Minn. 348, 5 N. C. C. A. 60; Eidge V. Norfolk S. Ey. Co., — N. C. — , 83 S. E. 762. 25. Midland V. E. Co. v. Fulgham, 104 C. C. A. 151, 181 Fed. 91. . NEGLIGENCE UNDER THE ACT 49 of res ipsa loquitur was not applicable in actions for negligence between master and servant.^" In a very recent case under the Federal Employ- ers' Liability Act taken to the United States Su- preme Court by writ of error from the Supreme Court of South Carolina there is in the language of the court in affirming the case an equivocal state- ment as to the applicability of the res ipsa loquitur rule,27 The language of the court is as follows: ''The defendant was killed by the falling of his en- gine through a burning trestle bridge. There was evidence tending to show that the trestle was more or less rotten, that the fire was caused by the drop- ping of coals from an earlier train and that the engine might have been stopped had a proper look- out been kept. The first complaint is against an instruction to the effect that, if a servant is injured through defective instrumentalities, it is prima facie evidence of the master's negligence and that the master 'assumes the burden' of showing that he ex- ercised due care in furnishing them. Of course the burden of proving negligence in a strict sense is on the plaintiff throughout, as was recognized and stated later in the charge. The phrase picked out for criticism did not controvert that proposition but merely expressed in an untechnical way that if the death was due to a defective instrumentality and no 26. Patton v. Texas & P. By. Co., 179 U. S. 658, 45 L, Ed. 362, 5 N. C. C. A. 43n; Chicago & N. W. E. Co. v. O'Brien, 67 C. C. A. 421, 132 Fed. 593 ; Northern P. Ey. Co. v. Dixon, 139 Fed. 737 ; Hamilton V. Kansas C. S. E. Co., 123 Mo. App. 619. 27. Southern Ey. Co. v. Bennett, 233 U. S. 80, 58 L. Ed. 860, affirming the same ease reported in — S. C. — , 79 S. E. 710, Roberts ■Liabilities — 4 50 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS explanation was given, the plaintiff had sustained the burden. The instruction is criticised further as if the judge had said res ipsa loquitur — which would have been right or wrong according to the res referred to. The judge did not say that the fall of the engine was enough, but that proof of a defect in appliances which the company was bound to use care to keep in order and which usually would be in order if due care was taken, was prima facie evidence of neglect. The instiiiction concerned conditions likely to have existed for some time (defective ash pan or damper on the engine and rotten wood likely to take fire), about which the company had better means of information than the plaintiff, and con- cerning which it offered precise evidence, which, however, did not satisfy the jury. We should not reverse the judgment on this ground, even if an objection was open to an isolated phrase to which no attention was called at the time." § 23. Cases Under Federal Act in Which the Facts Were Held to Show Actionable Negligence. — In the following actions for damages under the federal act it was held that the facts summarized warranted an inference of negligence sufficient to submit the ques- tion to a jury. A railroad bridge which had been weakened because some of the wooden supports under it had been consumed by fire collapsed when an engine attached to a rotary snow plow passed over it, causing the death of the engineer. The de- fendant's negligence was held to be a jury ques- tion.2* Decedent, a switchman in the employ of a 28. Copper E. & N. W. Ey. Co. v. Eeed, (C. C. A.) 211 Fed. 111. NEGLIGENCE UNDER THE ACT 51 railroad company while engaged in making up an interstate train, was run over and killed by a " road ' ' engine used at the time in switching. This engine was equipped with a pilot and did not have a front footboard with which regular switch engines in rail- road yards are usually equipped. Decedent fell from the pilot of the * * road ' ' engine and the evidence disclosed that there would have been less danger for employes if the engine had been equipped with a footboard. The court held that it was a question for the jury to determine whether the railroad com- pany was negligent in using the "road" engine in- stead of a regular switch engine.^^ A conductor of freight train was killed in a rear-end collision. One of the brakemen working under him neglected to protect the rear of the train by going back a, certain distance to flag approaching trains as he was re- quired to do. It was held that the brakeman's neg- ligence, as a matter of law, was the defendant's neg- ligence.^^ A gang of track laborers were returning from their work on several handcars which were a short distance apart. One of these cars on which plaintiff was riding collided with the car just ahead of it, causing plaintiff's injuries. It was shown that the men on the car in front of plaintiff's car without any warning suddenly materially reduced the speed of their car and the collision followed. The court held that the question whether the defendant's em- ployes on the first car were negligent was properly 29. Louisville & N. E. Co. v, Lankford, 126 C. C. A, 247, 209 Fed. 321, 6 N. C. C. A. 86d, 106n. 30. Pennsylvania Ry. Co. v. Goughnour, 126 C. C. A, 39, 208 Fed. 961, 52 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS a question for tlie jiiiy.^^ Whether a railroad com- pany was negligent in failing to inspect a box car after the roof was blown off and before the said con- dition of the box car caused an injury to an employe, was properly submitted to a jury for determina- tion.^- Plaintiff was assisting in repairing a rail- road bridge by preparing the points and heads of pilings so that they might be driven with a pile- driver. He attached a rope to a pile so that it might be hoisted by the pile-driver and moved into the place where it was to be driven. Plaintiff then crossed to the other side of the track when the pile, in being raised, swung over and struck him. There was evidence tending to show that if the engineer operating the pile-driver engine had held the line as it was his duty to do, the piling would have swung across from one side of the track to the other high enough to avoid hitting the plaintiff. The question of the engineer's negligence was properly submitted to the jury.^^ A section hand, while sweeping snow from the switches of a main line on a cold, windy, dark night, was struck and killed by a train running at a speed of 35 miles an hour without the bell ring- ing or whistling except that the whistle was blown at the whistling post before reaching the station. The track at the point was straight and the engine had a headlight which would show objects for a dis- tance of 1,000 feet. The men in charge of the train 31. San Pedro, L. A. & ^'. R. Co. v. Davide, 127 C. C. A. 454, 210 Fed. 870, 6 N. C. C. A. 197n. 32. Eidge v. Norfolk S. Ry. Co., — N. C. — , 83 S. E. 762. 33. Smith v. Northern P. R. Co., — Wash. — , 5 N. C. C, A. 947, 6 N. C. C. A. 85n, 92n, 140 Pac, 685. NEGLIGENCE UNDER THE ACT 53 knew that on such nights section men worked at switches to keep them clear of snow. The court held that on the question of the defendant's negli- gence the cause was properly submitted to the jury.^^ A large number of boxes had been standing for sev- eral weeks on a platform within a foot of a passing car. A passenger train passed by this platform and the steps attached to the side of the baggage car were torn away by striking some of these boxes which had toppled over a few hours before. Shortly thereafter the baggageman on the train as it ap- proached another station, fell to the ground because of the absence of the steps. In leaving the boxes unsecured so that they might cause damage to a passing train, the court held that the defendant was guilty of actionable negligence imder the federal act.^^ A passenger train stopped at night on a trestle bridge which was floored on one side of the track but not on the other. The train porter on the command of the conductor who knew the condition of the trestle, stepped from the train on the side that was not floored, fell several feet to the ground and was injured. He had been ordered by the conductor to get off the train in order to carry an oil can to the engineer. The porter was ignorant of the con- dition of the bridge. The court held that the con- ductor as the agent of the defendant was negligent in failing to inform the porter as to the proper side of the bridge for him to alight and that said neg- 34. Hardwick v. Wabash E. Co., 181 Mo. App. 156. 35. Ferebee v. Norfolk S, Ry. Co., — N. C. — , 4 N. C. C. A. 220n, 79 S. E. 685. 54 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS ligence, under the federal act, was the proximate cause of the injury.^" A petition in an action under the federal act stated that the plaintiff was a fireman on an interstate train; that as the train approached close to a place where the track had been torn up for repairs, a flagman, one of the laborers on the track, ran excitedly towards the train and signaled the engineer to stop. The emergency brakes were quickly applied and the plaintiff, seeing the flagman and the track torn up, jumped from the engine and was injured. It was alleged that the plaintiff's in- juries were caused by the negligence of the defend- ant in failing to have a flagman a sufficient distance away from where the employes were working on the track so that the train could be stopped before reaching the point. The petition was held to state a good cause of action under the federal act.^^ A bridge carpenter was at work on a double track bridge within fifty feet of a curved tunnel on the west and on the east approach there was another curve in a cut. The foreman took no precaution to protect the workmen by sending out flagmen. He only stood on the east bound track and called ' ' rail- road" or "clean up" on observing the approach of a train. It was held that the company was guilty of negligence under the federal act in failing to pro- tect the bridge carpenters with flags.^^ Whether a railroad company was negligent in failing to illumi- 36. Missouri, K. & T. Ey. Co. v. Bimkley, — Tex. Civ. App. — , 5 N. C. C. A. 583n, 153 S. W. 937. 37. Charleston & W. C. R. Co. v. Brown, 13 Ga. App. 744. 38. Norfolk & W. R. Co. v. Holbrook, 215 Fed. 687; s. c, (C. C. A.), 215 Fed. 1007, reversed on other grounds by United States Supreme NEGLIGENCE UNDER THE ACT 55 nate and guard an opening in a platform tunnel, was held, in an action uder the federal act, under the evidence to be a question for the jury.^^ A switch- man, while walking along a track in a terminal rail- road yard at night, was struck and killed by an en- gine moving slowly and almost noiselessly in the same direction. The engine's headlight was very dim and a train on another track nearby was passing at the same time making considerable noise. The engine which struck the switchman could have been stopped within a few feet but the engineer did not see the decedent. It was held that these facts con- stituted sufficient evidence of negligence and a ver- dict for the plaintiff was affirmed. ^° Whether a cinder pile placed near a track in a railroad yard constituted a ' ' defect due to negligence ' ' within the meaning of the federal act, was a question for the jury to pass upon.^^ A railroad employe, while rid- ing on the side of a box car at night, struck a switch stand and was injured. In a subsequent action for damages under the federal act, the court held that the question of the defendant's negligence in main- taining the switch stand too close to the track was, under the evidence, a matter for the juiy to deter- mine.^^ An engineer in stopping a train and caus- ing such an unusual and sudden jolt as to throw an Court (January 5, 1915), 235 U. &'. 625, 59 L. Ed. — . See §88, infra. 39. Copper Eiver N. W. Ky. Co. v. Henney (C. C. A.), 211 Fed. 459. 40. Southern Ey. Co. v. Smith, 123 C. C. A. 488, 205 Fed. 360. 41. Southern Ey. Co. v. Jacobs, — Va. — , 6 N. C. C. A. 94n, 186n, 81 S. E. 99. 42. McDonald v. Eailway T. Co., 121 Minn. 273. 56 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS employe from a ladder on a side of a car was guilty of negligence under the federal act.^^ When a rail- road company caused some cars to be "kicked" at night without warning and without light along a track in a terminal yard, its negligence in so doing was a jury question.^^ A brakeman, while switching cars from a train to a side track at night and riding on the side of a box car, was struck and injured by other cars standing on the adjoining track which had not been shoved far enough from the switch to be ' ' in the clear. ' ' The brakeman knew of the pres- ence of the standing cars but did not know how far they had been placed from the switch joining the two tracks. He proceeded to investigate before making the switching movement but before ascer- taining the condition of the cars he was assured by a fellow brakeman that the standing cars could be passed with safety and relying upon this assurance, he proceeded with the switching movement and was injured by coming in contact with the cars. In an action under the federal act it was held that his fellow brakeman 's statement constituted actionable negligence."*^ A switchman while assisting in *' pol- ing" a car, was crushed to death between the engine and the car. There was evidence pro and con as to the proper method in such movements of cars. 43. LaMere v. Eailway T. Co., 125 Minn. 526, 6 N. C. C. A. 97n, lOOn; Fort Worth & D. C. Ey. Co. v. Stalcup, — Tex. Civ. App. — , 167 S. W. 279; Chvens v. Chicago G. W. R. Co., 133 Minn. 49; Vaughan v. St. Louis & S. F. E. Co., 177 Mo, App. 155, 6 N. C. C. A. 75n, 438n, 439n. 44. Colasurdo v. Central R. Co. of New Jersey, 180 Fed. 832 ; s. c, 113 C. C. A. 379, 192 Fed. 901. 45. Skaggs V. niinois C. E. Co., 124 Minn. 503. NEGLIGENCE UNDER THE ACT 57 Whether the method actually used by direction of the foreman was negligent and caused the death of the decedent, was held, under the evidence, to be a jury question.'*^ A track laborer taking out old ties from the main line when a train approached on that track, stepped on an adjoining track where he was struck and killed by a switch engine which ap- proached without any warning. Witnesses testified that it was customary for switching crews to give warning to track laborers. It was held that the question of the negligence of the employes in charge of the switch engine was properly submitted to the jury.^^ A glass attached to a lubricator on an engine exploded and blew the shield around it against an engineer's face causing the loss of an eye. The lu- bricator in question was a kind called "Nathan" wl^ich sometimes explodes. Seventy-five per cent of the -defendant's engines were equipped with a kind of lubricator known as * ' Bull 's Eye ' ' which did not explode. The ' ' Nathan ' ' lubricators had been in use for twenty years but for three years before the date of plaintiff's injury this kind had been replaced on most of the engines by the "Bull's Eye" lubri- cators. Whether the defendant committed a negli- gent act in continuing to furnish the engine on which plaintiff was working with a "Nathan" lubricator instead of a "Bull's Eye," was a question for the 46. Sweet v. Chicago & N. W. Ey. Co., 157 Wis. 400, 6 N. C. C. A, 78u, 94n, 232n, 451n. 47. Bombolis v. Minneapolis & St. Tj_ j{_ rjo — Miim. — , 150 N. W. 385. 58 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS jury.^^ A car foreman while on duty had the ex- clusive possession of certain keys which unlocked the switches of a certain repair track in a terminal yard. Decedent, a car repaired, while working on this track was ordered by the foreman to go to an- other track in the yard to make slight repairs to a car. While he was absent the foreman ordered the switching crew to take out some cars from the repair track and place others in there for repair. Having no knowledge of the foreman's order or that cars were being switched onto the repair track, the car repairer returned and while at work on a car stand- ing on the repair track, the car was struck by other cars shoved in on the repair track by the switching crew causing the death of the car repairer. It was held that whether the foreman was negligent in fail- ing to anticipate that the car repairer would return before the switching was completed and in failing to warn the decedent, was not a question of law but a question of fact to be solved by the jury.^^ A rail- road employe was ordered by the conductor to couple an engine to a way car. Upon the first effort, the coupling failed. The way car was knocked back some distance. The deceased stepped in to fix the pins and then signaled the fireman to couple up, but the caboose again failed to make the coupling. The deceased again stepped in to adjust the coupling and while standing near the draw bar the caboose sud- 48. Bower v. Chicago & N. W. Ey. Co., — Neb. — , 6 N. C. C. A. 213n, 148 N. W. 145. 49. Evans v. Detroit, G. H. & M. Ry. Co., — Mich — , 148 N. W. 490. NEGLIGENCE UNDER THE ACT 59 denly moved down upon him, causing his death. It was held that the evidence was sufficient to show a violation of the Federal Safety Appliance Act and that such violation caused his death.^*^ Decedent, a car inspector, was run over and killed at night on a track in a railroad terminal yard by some cars backed up by a switch engine without warning, without lights and with no one on the end of the first car to warn him of danger. In an action under the federal act it was held that the question of the de- fendant's negligence was properly submitted to the jury.^^ A section laborer in a railroad yard stepped on a certain track for purposes of his own, the evi- dence being conflicting as to whether he was between two cars or at the end of a car standing on the track. While so standing he was struck by some cars switched upon the track. There was evidence that there was no one on these cars in a suitable position to warn employes of their approach and there was also evidence that the section foreman knew that the laborer was in a position of danger on the track and that he by exercising ordinary care could have seen the approaching cars in time to have warned the decedent. It was held under these facts that the cause was properly submitted to the jury under the federal act.^^ 50. Montgomery v. Carolina & N. W. R. Co., 163 N. C. 597, 6 N. C. C. A. 88n. 51. Thornton v. Seaboard A. L. By. Co., — S. C. — , 6 N. C. C. A. 85n, 93n, 82 S. E. 433. 52. Louisville & N. R. Co. v. Johnson's Adm'x, — Ky, — , 171 S. W. 847. 60 INJURIES TO INTERSTATE EMPLOYES ON EAILBOADS § 24. Cases Under Federal Act in Which the Facts Were Held Not to Show Actionable Negligence. — An electric passenger car while running from one state to another was derailed in the state of Ohio causing the death of the motorman. Under a statute of Ohio proof of a defect in the wheels of the car was suf- ficient to create a prima facie case of negligence but as the action was prosecuted under the federal act the state statute was inoperative for the reason that under the federal act a common carrier by railroad is not liable unless the death is the result of defects "due to negligence" and a recovery was denied.^^ An engine repairer in a roundhouse had his hand crushed between a pilot beam and a jack while at- tempting to lower the front end of a locomotive engine. He claimed that the engine dropped because another jack on the other side of the engine slipped and that this in turn was due to the fact that a wrench was used as a substitute for a lever. The court held that, under the evidence, the plaintiff failed to show that an act of negligence caused the injury.^^ A fireman on an engine saw a track walker walking in a place of safety between two tracks with his back to the train. The engine bell was ringing; but as the train came close to the track walker, he suddenly stepped from between the tracks on the track on which the train was approaching and was run over and killed. He could not have been seen by the en- gineer because of a curve. A jury returned a verdict 53. South Covington & C. St. R. Co. v. Finan 's Adm 'x, 153 Ky. 340. 54. Winters v. Minneapolis & St. L. E. Co., — Minn. — , 6 N. C. C. A. 78n, 201n, 148 N. W. 106. NEGLIGENCE UNDER THE ACT 61 against the railroad company and found that the death of the track walker was due in part to the neg- ligence of the fireman in failing to request the en- gineer to sound the whistle when the decedent was first seen by the fireman while walking between the tracks. It was held that the fireman was not negli- gent in failing to anticipate that the decedent would step from a place of safety on a track directly in front of an approaching train and the cause was reversed.^^ Plaintiff, a student fireman, was given a letter by the defendant railroad company permit- ting him to ride on the engines of all freight trains to prepare himself for the duties of a fireman. He boarded an engine of one train and was informed by the fireman that it was not a suitable train to learn firing on and he was advised to get off and then get on another train running in the opposite direction at a certain place over which all trains ran under "slow orders." He was told that the train would pass that place running only six miles an hour and that he could easily get on. The plaintiff did so and in attempting to get on the other train was thrown under the wheels and injured. He attributed his injuries to the excessive speed of the train of which he had no knowledge, but assumed, on the assur- ance of the fireman of the other train, that it was only running at the rate of six miles per hour. He had had no experience in judging the speed of train. The court held that there was no duty towards the plaintiff to run the train at six miles an hour and 55. New York, N. H. & H. R. Co. v. Portillo (C. C. A.), 211 ^d. 331. 62 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS consequently no negligence. ^'^ Plaintiff, a section foreman, was riding with a force of men on a hand car while inspecting the tracks. A flagman had preceded the section hands along the track so as to give them warnings of approaching trains. Sud- denly a freight train running at a high rate of speed came in sight from around a curve and the flagman promptly warned the men on the handcar. Because of the close proximity of the train when it was dis- covered, owing to the curve which obstructed the view, the men on the handcar acted promptly, and to prevent a threatened collision quickly removed the car. The plaintiff in assisting strained himself and sustained injuries. The court found that under the facts neither the flagmen or the train employes were negligent and that as it was necessary for the plaintiff in an action under the federal act to show by the evidence that his injuries were caused in whole or in part by the defendant's negligence or its employes, there was no liability.^ "^ Two section men, each holding one end of a tie, started to toss the tie on a flat car. The tie was in a wet, slippery condition and this caused it to turn as it was being- tossed on the car. One of the two laborers, by reason of the tie slipping and turning, had his finger caught between the tie and the floor of the car, causing it to be pinched off. In a subsequent action under the federal act, it was held that the facts disclosed did 56. Cincinnati, N. O. & T. P. Ry. Co. v. Wheeler, — Ky. — , 169 S. W. 690. 57. Louisville & N. R. Co. v. Kemp, 140 Ga. 657, 6 N. C. C. A. 75n, 196n. NE<5LIGENCE UNDER THE ACT 63 not show negligence within the meaning of the act, but that the plaintiff's injury was due to an accident without any causal negligence contributing.^^ Steam escaped from a steam pipe attached to a steam chest on a ferry boat used by a railroad company as a part of its line. The escaping steam caused the death of an employe on the boat and it was held in an action for his death by the administrator on behalf of the beneficiaries named in the federal act that as there was no evidence produced tending to show that the escape of the steam and the breaking of the pipe was due to some negligence on the part of the owner, there could be no recovery. ^^ A brakeman while switching cars at night and knowing that cars were being shoved back in response to his signal to the engineer, placed himself between the track on which the cars were approaching and a freight loading platform where the space between the platfoim and a car was only a few inches and too narrow for a man to stand with safety. While the cars were still about twenty feet away from him, the conductor warned him of the dangerous place he was in and told him to get out. Then the brakeman set his lantern on the platform, placed his hands upon the platform and tried to vault onto the platform but before he succeeded the end of the car caught him and crushed him between the car and the platform. It was held that no negligence of the defendant con- tributed either in whole or in part to cause the 58. Long V. Southern Ry. Co., — Ky. — , 159 S. W. 779. 59. The Passaic, 190 Fed. 644 ; s. c, 122 C. C. A. 466, 204 Fed. 266. 64 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS death.'''^ A conductor was walking along the side of his train taking the numbers of the cars while the crew was making up the train. Starting at the rear of the train there were first, three cars; second, a space of 18 or 20 feet; third, three more cars; fourth, a space of several feet, and, fifth, a long string of freight cars with the engine at their head. When the conductor reached the rear of the forward three cars, he gave the lift pin lever a jerk, and then, reached in to put his hand on, or actually took hold of the coupler when the forward end of the train struck the forward end of the three cars in the act of coupling to them, knocked him down and ran over him. The car to which the coupler was attached had been inspected shortly before the accident and the inspectors had found no defect. Several witnesses examined and operated the coupler and the lift pin lever immediately after the accident and found them in good condition and operating perfectly. It was held that under this state of facts the verdict of the jury that the coupler was so defective at the time of the accident that "it would not couple auto- matically by impact without the necessity of men going in between the car" as required by the Federal Safety Appliance Act, was based on conjecture and could not be sustained.®^ A section hand was riding on a tricycle on a railroad track with his foreman. Tools were also being carried. The foreman ordered the laborer to stop the car with the brake and when 60. Pankey v. Atchison, T. & S. F. R. Co., 180 Mo. App. 185. 61. Midland V. R. Co. v. Fulgham, 104 C. C. A. 151, 181 Fed. 91, reversing the same case reported in 167 Fed. 660, NEGLIGENCE UNDER THE ACT 65 he attempted to do this with his hand, his arm came in contact with the tools on the car causing his fingers, in some way not clearly shown, to be caught in the cog wheels, injuring him. It was claimed in a suit under the federal act that the foreman was negligent in ordering the laborer to apply the brakes as in doing so he might probably come in contact with the tools and be injured. The court held that such an act on the part of a foreman was not negli- gence and that the injury was caused by an accident without any negligence contributing thereto.*'^ § 25. Wilful Wrongs Not Within Terms of the Act. — By its terais the national act is limited to negligent acts of a common carrier. Under well-known prin- ciples of law, injuries caused by the wilful or inten- tional acts of another are not within the terms of the statute, for, as quaintly said by one jurist, "when wilfullness comes in at the door negligence goes out through the window. ' ' Most statutes, giving rights of action for death, define the wrongful act as the '* wrongful act, neglect or default of another" which would include intentional wrongs; but the federal act, for some reason, has confined the wrongful acts for which a recovery can be had, to those which are due to negligence solely. A wilful assault of one employe upon another would be beyond the terms of the statute. ea. Cinciimati, N. O. & T. P. Ey. Co. v. HiU, — Ky. — , 170 S. W. 599. Roberts liabilities— 5 CHAPTER III EMPLOYES INCLUDED WITHIN THE FEDERAL ACT § 26. Statute Includes Only Employes Injured While Engaged in Interstate Commerce. § 27. Servants Engaged in Both Kinds of Commerce. § 28. Train Men on Interstate Trains Are Employed in Interstate Commerce. § 29. When Train Men Are Not Engaged in Interstate Commerce. § 30. Bridge Workers and Carpenters Employed in Interstate Com- merce, When. § 31. When Car Eepairers and Roundhouse Employes Are Engaged in Interstate Commerce. § 32. When Car and Engine Eepairers Are Not Engaged in Inter- state Commerce. § 33. Test in Determining When Switching Crews Are Engaged in Interstate Commerce. § 34. Switching Crews Engaged in Interstate Commerce. § 35. Switching Cars Containing Intrastate Shipments Into or Out of Interstate Trains — Conflicting Eulings. § 36. Section Men and Track Laborers, j § 37. Employes Preparing or Mo\ang Materials or Instrumentalities to Be Used on Interstate Trains. § 38. Employes Preparing Interstate Trains for Movement. § 39. Employes on Premises of Eailroad Going To or From Work. § 40. Employes Engaged in the Original Construction of Instrumental- ities for Future Use in Interstate Commerce Not Within the Act. § 41. Eepairing or Eebuilding Instrumentalities Used in Interstate Commerce. § 42. Yard Clerks Engaged in Interstate Commerce, When. § 43. Pullman Employes. § 44. Agents of Express Companies. § 45. Miscellaneous Employes. § 46. Instances Where Employes Were Engaged in Interstate Com- merce but Erroneously Held to Have Been Engaged in Intra- state Commerce. 66 EMPLOYES WITHIN THE ACT 67 § 47. Instances Where Employes Were Engaged Exclusively in Intra- state Commerce but Erroneously Held by the Courts to Have Been Engaged in Interstate Commerce. § 48. Employes Presumed to Be Engaged in Intrastate Commerce. § 49. Intrastate Employes Injured by Negligence of Interstate Em- ployes or Instrumentalities of Interstate Commerce Have No Eemedy Under Federal Act. § 50. Decisions Construing Federal Safety Act Not Always Appli- cable in Construing Employers' Liability Act. § 51. When Question of Employment in Interstate Commerce Should Be Submitted to Jury. § 26. Statute Includes Only Employes Injured While Eng^aged in Interstate Commerce. — The stat- ute provides that a common carrier by rail, while engaging in interstate commerce, is liable for in- juries or death to an employe, due to negligence, "while he is employed by such carrier in such com- merce." The employe must have been at the time of the injury engaged in interstate commerce. Frequently a troublesome question arises as to whether a servant is employed in interstate or intra- state commerce at the time of the accident, for, if the former, the remedy, if any, given by the federal act is exclusive, while if the latter, the state law alone furnishes the remedy, even though at the time the carrier itself was engaged in interstate commerce. Both must be so engaged to render the federal act applicable. If the reader bears in mind that Con- gress in passing the act, was not regulating the rights and liabilities of employers and employes as such, but was primarily regulating and promoting the safety of those engaged in interstate commerce, and for that purpose incidentally declared the rights and liabilities of all railroads and employes only. 68 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS while both were engaged in such commerce, many difficulties in the solution of such a question dis- appear.^ § 27. Servants Engaged in Both Kinds of Com- merce. — Although an employe is at the time engaged in intrastate commerce as well as interstate com- merce, as, for instance, an employe on a train hauling both kinds of commerce or a carpenter repairing a bridge over which both kinds of commerce, are carried, yet if injured under such circumstances, he cannot take his choice of remedy under the state and federal law, for the courts hold that he is then engaged in interstate commerce and the remedy given by the national act is exclusive.^ An extreme and a proper application of this principle is the following: A brakeman injured on a train contain- ing nothing but intrastate shipments has no remedy under the federal act but the minute that any specie of merchandise destined to a point beyond the state is placed in that train, then if the brakeman on that train is injured, he is engaged in interstate com- 1. First Employers' Liability Cases, 207 U. S. 463, 52 L. Ed. 297, in which the Supreme Court declared the Federal Employers ' Ldability Act of 1906 unconstitutional; Second Employers' Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 1 N. C. C. A. 875, 38 L. R. A. (N. S.) 44, in which the Federal Employers' Liability Act of 1908 was held constitutional and valid. 2. Pederson v. Delaware, L. & W. R. Co., 229 U. S. 146, 57 L. Ed. 1125, 6 N. C. C. A. 198n, 924n, reversing same case ia 117 C. C. A. 33, 197 Fed. 537, which affirmed 184 Fed. 737; Michigan C. R. Co. v. Vree- land, 227 U. S. 59, 57 L. Ed. 417, 3 N. C. C. A. 807, Ann. Cas. 1914 C 176n; Fernetto v. Pere Marquette R. Co., 175 Mich. 653, 6 N. C. C. A. 231n. EMPLOYES WITHIN THE ACT 69 merce, although every other commodity in that train is a shipment between two points in the same state.^ § 28. Train Men on Interstate Trains are Em- ployed in Interstate Commerce. — Engineers, firemen, conductors, brakemen, flagmen and other employes working on interstate trains are employed in inter- state commerce within the meaning of the act. A brakeman killed while helping to move an interstate train, was held to be engaged in interstate com- merce.^ Employes of a common carrier by railroad on a train transporting freight from one station on a railway line to another station in the same state where the freight was to be transported by other trains to another state, were engaged in interstate commerce within the meaning of the federal act.^ A brakeman employed on a train running between two terminals in the same state which contained cars destined for points in other states and injured while uncoupling two cars, was engaged in interstate com- merce.*^ A fireman on an engine of a passenger train running from Chicago to Milwaukee and in- jured in Illinois was employed in interstate com- 3. United States v. Colorado & N. W. Ey. Co., 85 C. C. A. 27, 157 Fed. 342, 15 L. E. A. (N. S.) 167n, 13 Ann. Cas. 893. Decedent was brakeman with a switching crew in a freight yard. He was killed while switching cars. The evidence was silent as to whether the cars contained interstate shipments. It was held that his widow suing as administratrix could not recover under the Federal Act. Hench v. Pennsylvania R. Co., — Pa. — , 91 AtL 1056. 4. Vaughan v. St. Louis & S. F. R. Co., 177 Mo. App. 155, 6 N. C. C. A. 75n, 438n, 439n; Hearst v. St. Louis, I. M. & S. Ey. Co., — Mo. App. — , 173 S. W. 86. 5. United States v. Chicago, M. & P. S. Ey. Co., 197 Fed. 624. a Nashvile, C. & St. L. E. Co. v. Banks, 156 Ky. 609, 6 N. C. C. A. 99n, 105n, 186n. 70 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS merce.'^ An engineer on a freight train running from a point in Missouri to another place in Arkansas and killed while enroute was held to have been employed in interstate commerce.* Although a freight train was only operated between two terminals in the same state, yet since it transported freight from one state to another and to a foreign country, the employes on the train were engaged in interstate commerce.^ A brakeman on a passenger train running from a point in Kentucky to another point in Ohio, was held to be engaged in interstate commerce.^*^ § 29. When Trainmen Are Not Engaged in Inter- state Commerce. — If, at the time of the accident, the injured employe was engaged in intrastate com- merce, his remedy is governed exclusively by the laws of the state where the accident occurred. Train- men, such as engineers, firemen, flagmen, baggage- men, brakemen, porters and conductors, are not employed in interstate commerce when they are assisting exclusively in the movement of intrastate traffic. For instance, when they are employed on a train containing only traffic billed between two points in one state, the line between the two points being wholly within the state, they are engaged in intra- state commerce. As a matter of fact, however, in the practical operation of railroads, trains running 7. Rowlands v. Chicago & N. W. Ey. Co., 149 Wis. 51. 8. St. Louis, I, M. & S. Ey. Co. v. Conley, 110 C. C. A. 97, 1S7 Fed. 949. 9. Northern P. Ey. Co. v, Washington, 222 U. S. 370, 56 L. Ed. 237, reversing same ease reported in 53 Wash. 673. 10. Cincinnati, N. O. & T. P. Ey. Co. v. Goode, 155 Ky. 153, 6 N. C, C. A. 81n, 544n; s. c, 153 Ky. 247. EMPLOYES WITHIN THE ACT 71 between two terminals, containing only intrastate commerce, that is, traffic originating in and being destined to a point in the same state, are seldom operated as the examination of conductors' wheel reports will disclose, and, as a rule, every train carries interstate freight. If a train has a single shipment of interstate freight, then all the employes working on that train are engaged in interstate commerce. Notwithstanding trains as a rule carry interstate commerce, cases have been passed upon, in which the courts have held, and properly so, that the employe's remedy was governed exclusively by the state law, because of the fact that the train on which he was working contained only intrastate ship- ments.^^ For instance, a switching crew for a rail- road company worked sometimes during the day in transporting interstate shipments and at other times in hauling intrastate freight. The plaintiff was a 11. Southern Ey. Co. v. Murphy, 9 Ga. App. 190, 3 N. C. C. A. 791n; Louisville & N. R. Co. v. Strange 's Adni 'x, 156 Ky. 439, 6 N. C. C. A. 75n, 82n, 83n, 185n; Illinois C. E. Co. v. Behrens, 233 U. &'. 473, 58 L. Ed. 1051, 6 N. C. C. A. 189n, Ann. Cas. 1914 C 163n; Wright v. Chicago, E. I. & P. R. Co., 94 Neb. 317, 6 N. C. C. A. 183n, A freight conductor was injured while operating a train between two points in the same state, which consisted solely of an engine and the way car. The train crew of which this conductor was a member, was not re- turning from a trip after hauling empty or loaded cars between the states, but was returning without transporting any commerce from one state to another. Under these facts the court said : ' ' They were carrying instrumentalities which had been and probably would be used in the future for interstate and intrastate transportation cembined, or only for intrastate purposes, or perchance for interstate commerce only. I cannot find that it has been decided that such act constitutes interstate commerce, but it has been in principle decided that it does not." McAuliffe v. New York, C. & H. E. Co., 150 N. Y. Sup. 512. 72 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS member of this switching crew working on a short line terminating at a smelting works. This crew made three or four trips a day out to the main line hauling cars containing both intrastate and inter- state shipments. At other times while on duty they were engaged in switching the coal and coke cars from what were known as the "coke tracks" to other points nearby, all in the same state. The plaintiff was injured while employed in assisting in the transportation of the intrastate shipments, and the court held that he was engaged solely in intrastate commerce at the time and that his remedy was governed exclusively by the laws of the state where the casualty occurred.^^ ^ switchman, assisting in the movement of empty passenger cars after reach- ing a terminal, which had been used exclusively in transporting intrastate passengers, was held to have been, while so engaged, not employed in interstate commerce. ^^ §30. Bridge Workers and Carpenters Employed in Interstate Commerce, When. — If a railroad track of a common carrier is used indiscriminately for the purpose of carrying both interstate and intrastate commerce, then bridge workers and carpenters employed on such lines are engaged in interstate commerce within the meaning of the federal act. 14 12. Southern Ey. Co. v. Murphy, 9 Ga. App. 190, 3 N. C. C. A. 791n. 13» Patry v. Chicago & W. I. R. Co., — lU. — , 106 N. E. 843, reversing same case reported in 185 111. App. 361. 14. Pederson v. Delaware, L. & W. R. Co., 229 U. S. 146, 57 L. Ed. 1125, 6 N. C. C. A. 198n, 924n, Ann. Cas. 194 O 153n, reversing same case reported in 184 Fed. 737 and 117 C. C. A. 33, 197 Fed. 537. (Lamar, Holmes and Lurton, J. J., dissenting.) EMPLOYES WITHIN THE ACT 73 The Pederson case, cited in the notes, was one of the first and leading cases before the Supreme Court of the United States presenting the question as to when a railroad employe was engaged in interstate commerce by virtue of his employment and the court held than an iron worker employed in repairing a bridge on a railroad track, used indiscriminately for both interstate and intrastate commerce, was en- gaged in interstate commerce while he was carrying bolts or rivets from a tool car to a bridge although struck by a train carrying exclusively intrastate commerce. When struck, the plaintiff was not engaged in removing the old girder and inserting the new one but was merely carrying to the place some of the materials to be used there. These facts were presented to three courts and three different conclusions of law were drawn from them. In the final decision of the national Supreme Court, Justices Lamar, Holmes and Lurton dissented. The federal circuit court in which the case was tried held that an injury resulting from a co-employe engaged in intrastate commerce, was not within the terms of the act. The federal circuit court of appeals dis- approved the ruling of the lower court but decided that the plaintiff was not engaged in interstate commerce. The Supreme Court disapproved both rulings and held that it was not essential where the causal negligence was that of a co-employe that he must also be employed in interstate commerce "for, if the other conditions be present, the statute gives a right of recover}^ for injury or death resulting from the negligence of ^any of the * * * eni_ 74 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS ployes of sucli carrier' and this includes an employe engaged in intrastate commerce." On this feature all the judges concurred. The court also held that the plaintiff was employed in interstate commerce, because the work of keeping bridges in repair is so closely related to interstate commerce as to be in practice and legal contempla- tion a part of it. Tried by the true test, is the work in question a part of the interstate commerce in which the carrier is engaged, the court found that bridges on interstate railroads, are as indispensable to such commerce as cars and engines, and that the security and efficiency of such commerce requires such bridges to be kept in repair. In the minority opinion, Justice Lamar held that carrying bolts to be used in repairing such a bridge was not a part of commerce but an incident which precedes it; that such an act was not commerce in any sense and that the Federal Employers' Liability Act applied to those engaged in transportation and not to those employed in building, manufacturing or repairing. In holding that the plaintiff was engaged in inter- state commerce, Mr. Justice Van Devanter, speaking for the court in the majority opinion, said: "That the defendant was engaged in interstate commerce is conceded; and so we are only concerned with the nature of the work in which the plaintiff was em- ployed at the time of his injury. Among the questions which naturally arise in this connection are these: Was that work being done independently of the interstate commerce in which the defendant was engaged, or was it so closely connected therewith as EMPLOYES WITHIN THE ACT 75 to be a part of it? Was its performance a matter of indifference so far as that commerce was con- cerned, or was it in the nature of a duty resting upon the carrier? The answers are obvious. Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars; and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. The security, expedition, and efficiency of the commerce depends in large measure upon this being done. Indeed, the statute now before us pro- ceeds upon the theory that the carrier is charged with the duty of exercising appropriate care to prevent or correct 'any defect or insufficiency * * * in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment' used in interstate commerce. But inde- pendently of the statute, we are of opinion that the work of keeping such instrumentalities in a proper state of repair which thus used is so closely related to such commerce as to be in practice and in legal contemplation a part of it. The contention to the contrary proceeds upon the assumption that inter- state commerce by railroad can be separated into its several elements, and the nature of each deter- mined regardless of its relation to others or the business as a whole. But this is an erroneous assumption. The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged? See MoCall v. Cali- fornia, 136 U. S. 104, 109, 111, 34 L. Ed. 391, 392, 393, 3 Inters. Com. Rep. 181, 10 Sup. Ct. Rep. 881; Second 76 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.), 223 U. S. 6, 59, 56 L. Ed. 329, 350 (1 N. C. C. A. 875), 38 L. R. A. (N. S.) 44, 32 Sup. Ct. Rep. 169; Zikos v. Oregon R. & Nav. Co., 179 Fed. 893, 897, 898 (3 N. C. C. A. 783n, 784) ; Central R. Co. V. Colasurdo, 113 C. C. A. 379, 192 Fed. 901 (4 N. C. C. A. 645n) ; Darr v. Baltimore & 0. R. Co., 197 Fed. 665; Northern P. R. Co. v. Maerkl, ll7 C. C. A. 237, 198 Fed. 1. Of course, we are not here concerned with the construction of tracks, bridges, engines, or cars which have not as yet become instrumentalities in such commerce, but only with the work of main- taining them in proper condition after they have becom.e such instrumentalities and during their use as such. True, a track or bridge may be used in both interstate and intrastate commerce, but when it is so used it is none the less an instrumentality of the former; nor does its double use prevent the employment of those who are engaged in its repair or in keeping it in suitable condition for use from being an employment in interstate commerce. The point is made that the plaintiff was not, at the time of his injury, engaged in removing the old girder and inserting the new one, but was merely carrying to the place where that work was to be used therein. We think there is no merit in this. It was necessary to the repair of the bridge that the materials be at hand, and the act of taking them there was a part of that work. In other words, it was a minor task which was essentially a part of the larger one, as is the case when an engineer takes his engine from the roundhouse to the track on which are the cars he is EMPLOYES WITHIN THE ACT 77 to haul in interstate commerce. See Lamphere v. Oregon R. & Nav. Co., 116 C. C. A. 156, 196 Fed. 336 (6 N. C. C. A. 187n, 47 L. R. A. [N. S.] In) ; Horton V. Oregon- Washington R. & Nav. Co., 72 Wash. 503 (3 N. C. C. A. 784), 130 Pac. 897 (47 L. R. A. [N. S.] 8n) ; Johnson v. Southern P. Co., 196 U. S. 1, 21, 49 L. Ed. 363, 371 (3 N. C. C. A. 784, 802n, 829n), 25 Sup. Ct. Rep. 158." § 31. When Car Repairers and Roundhouse Em- ployes Are Engaged in Interstate Commerce. — Employes of common carriers by railroad repairing engines or cars used indiscriminately in both inter- state and intrastate commerce as occasion requires, are employed in interstate commerce so that their rights in the event of injuries or the rights of their beneficiaries in cases of death are controlled exclu- sively by the Federal Act.^^ In the Maerkl case, cited in the notes, the decedent was a car repairer and at the time of his death was repairing a box car. This car had been used for a long time in both interstate and intrastate commerce as occasion might arise, and was, at the time of the injury sustained by decedent, which subsequently caused his death, being repaired in a railroad ter- minal yard. It was held that the decedent was engaged in interstate commerce. In so holding, the court said: "It appeared from the evidence that the place where the repairing was done was on the main line of the defendant company, between 15. Northern P. Ey. Co. v. Maerkl, 117 C. C. A. 237, 198 Fed. I. This case was cited with approval by the Supreme Court in Pederson V. Delaware, L. & W. R. Co., 229 U. S. 152, 57 L. Ed. 1225, 6 N. C. C. A. 198n, 924u, Ann. Cas. 1914 C 153n. 78 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS Tacoma, Washington and Portland, Oregon, and was connected with it by switches over which the cars needing repairs were run, and over which, after repairing, they were again put into the service of the company for use in interstate and intrastate com- merce, as occasion required, and the parties are agreed that this particular car upon which the de- ceased was at work when injured had been for a long time indiscriminately used in interstate and intrastate commerce and was to be again so used when repaired. That a car was used as one of the instruments of interstate commerce does not admit of doubt." In another case the employe was also a car re- pairer. He was ordered to repair the tender of an engine which had brought in a freight train from another point in the same state but during the course of the transportation crossed into another state and then back into the state where the transportation originated. The plaintiff, at the time of his injury, was repairing the engine while it was on a *'fire track" on which temporary repairs were usually made. After the completion of the repairs the engine was to be used in hauling another train over the same track over which it came. The engine had been habitually used in interstate commerce. Under these facts the court held that the plaintiff was employed for the defendant in interstate commerce. ^^ A boiler maker's helper working in a machine shop of a railroad company was injured while repairing 16. Baltimore & O. By. Co. v. Darr, 124 C. C. A. 565, 204 Fed. 751, 6 N. C. C. A. 203n, affirming same case reported in 197 Fed. 665. EMPLOYES WITHIN THE ACT 79 the "petticoat" of a freight engine regularly used by the defendant in interstate commerce. The engine was in the shop for what is called "roundhouse overhauling." It had been dismantled at least 21 days before the accident. Up to the time it was taken to the shop it was actually in use in interstate commerce. It was destined for return thereto upon the completion of the repairs and actually was so returned the day following the accident. The court held that the engine did not lose its interstate char- acter from the mere fact that it was not at the time actually engaged in interstate commerce and that therefore the plaintiff was employed in interstate commerce within the purview of the federal act.^^ In another case the plaintiff was a car repairer and was at work in the yards on a switching track. He went between two cars to fix the couplers when the two cars came together by being "kicked" through other cars sent on that track. The car hav- ing the defective coupler belonged to another rail- road company. It had been brought to the place of the accident from another state delivered to the defendant loaded with coal and by the defendant delivered to the consignee. The car had then been unloaded and placed upon the track on which it was when the plaintiff was injured for the purpose of being redelivered to another railroad at the time the car was empty. Under these facts the court held that the plaintiff was engaged in interstate com- 17. Law V. Illinois C. E. Co., 126 C. C. A, 27, 208 Fed. 869, 6 N. C. C. A. 103n, 201n. 80 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS merce.^^ A car repairer replacing a drawbar on a car used in transporting interstate commerce, was held to be engaged in interstate commerce and that his remedy under the federal act was exclusive. ^-^ A roundhouse employe while repairing an engine used in hauling both interstate and intrastate freight, was held to be engaged in interstate commerce.-'^ § 32. When Car and Engine Repairers Are Not Engaged in Interstate Commerce. — If cars or engines upon which repairs are being made by railroad em- ployes are used exclusively in intrastate commerce, the remedy of such employes injured while engaging in such work is determined exclusively by the laws of the state where the accident happened. A car repairer in the employ of a railroad company was killed while repairing a car that was transported from New Jersey to Pennsylvania carrying inter- state commerce. The car had reached its destination and it was empty. Upon the end of the journey it was put on a side track for repairs. So far as the evidence appeared the car was in Pennsylvania awaiting orders and not long afterwards it was moved to another point in Pennsylvania beyond 18. Johnson v. Great Northern E. Co., 102 C. C. A. 89, 178 Fed. 643, 1 N. C. C. A. 853n, 861n. 19. Walsh V. New York, N. H. & H. K. Co., one of the Second Employers' Liability Cases, reported in 223 U. S. 5, 56 L, Ed. 327, 1 N. C. C. A. 875, 38 L. E. A. (N. S.) 44; accord, Gaines v. Detroit, G. H. & M. Ey. Co., — Mich. — , 6 N. C. C. A. 202n, 148 N. W. 397; St. Louis & S. F. Ey. Co. v. Conarty, 106 Ark. 421, 6 N. C. C. A. 202n, 447n; Missouri, K. & T. Ey. Co. v. Denahy, — Tex. — , 6 N. C. C. A., 202, 165 S. W. 529. 20. Winters v. Minneapolis & &t. Louis E. Co., .— Minn. — , 6 N, C. C. A. 78n, 201n, 148 N. W. 106. EMPLOYES WITHIN THE ACT 81 which it was not traced. Decedent was killed while repairing this car. It was held that the administrator could not recover under the federal act.^^ In another case a carpenter was repairing a freight car. No facts appeared as to whether the car was used indis- criminately in transporting interstate and intrastate commerce. Nothing was shown as to either the prior or subsequent use of the car. It was held that the plaintiff could not recover under the federal act.^^ The decision in the last case was probably correct as, in the absence of evidence to the contrary, the car repairer was presumed to have been engaged in intrastate commerce.^^ A roundhouse employe working on an engine in the roundhouse which had just returned from an intrastate journey was held not engaged in inter- state commerce.^^ Under the facts in this case the decision was incorrect as the engine was used indis- criminately in hauling both kinds of commerce and the language of the court in determining when car repairers are engaged in interstate commerce does 21. Heimbach v. Lehigh V. R. Co., 197 Fed. 579. This decision was rendered before the decision of the United States Supreme Court in the Pederson case, 229 U. S. 146, 57 L. Ed. 1125, 6 N. C. C. A. 198n, 924n, Ann. Cas. 1914 C 153n, and the court announced in deciding the case that it was following the decision of the Federal Circuit Court of Appeals in the Pederson case, 117 C. C. A. 33, 197 Fed. 537, which was later reversed. 22. Louisville & N. E. Co. v. Moore, 156 Ky. 708, 4 N. C. C. A. 227n, 5 N, C. C. A. 771n. 23. Erie E. Co. v. Welsh, — Ohio — , 6 N. C. C. A. 77n, 188n, 105 N. E. 190; Bradbury v. Chicago, E. I. & P. Ey. Co. 149 Iowa 51 j Chicago, E. I. & P. Ey. Co. v. McBee, — Okla. — , 145 Pae. 331. 24. LaCasse v. New Orleans, T. & M. E. Co., — La. — , 6 N. C. C. A. 196n, 437n, 64 So. 1012. Roberts Liabilities — 6 82 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS not state the proper rule. It is generally held that car repairers on engines or cars used indiscriminately in both kinds of commerce are engaged in interstate commerce; but the court in this case used the fol- lowing language: ''We do not understand this evidence to mean any more than this locomotive, like any other locomotive of the defendant company, or any of its cars, might be and was sometimes used in interstate commerce. Not that it was being so used at the time the decedent was attending to it. On the contrary the evidence shows that its last run, which was on the preceding day, had been from another intrastate point to Eunice. If the fact that a locomotive or a car might be used the next day, or whenever next needed, in interstate commerce, was equivalent to being actually at the time in use in that commerce, the effect would be that whenever a railroad did not confine itself to intrastate com- merce, but engaged also in interstate commerce, every one of its employes would at all times be engaged in interstate commerce when at their work. ' ' In another action against a railroad company the plaintiff was a boiler maker working in the shops of a railroad company when injured. He was en- gaged in repairing a boiler of an engine used in operating a derrick on a flat car while it lay on the ground near the roundhouse. This derrick was a part of a wrecking train which was subject to orders and was used mostly in the state of Illinois and in other states when needed, depending upon the place of the disaster. The wrecking train consisted of a EMPLOYES WITHIN THE ACT 83 locomotive, one or more flat cars, this derrick car and a bnnk car. The employes on the wrecking train slept in the bunk car and remained there frequently for three or four days at a time. The court held that the plaintiff was not engaged in interstate commerce.^'* § 33. Test in Determining When Switching Crews Are Engaged in Interstate Commerce. — The sole test in determining whether switching crews employed in railroad yards are engaged in interstate commerce is whether at the very moment of the accident they are assisting in moving interstate trains, that is, cars either loaded or empty, originating in one state and destined to a point in another state, territory or foreign country.^*^ In the Behrens case cited in the 25. Euek v. Chicago, M. & &t. P. Ry. Co., 153 Wis. 158, 6 N. C. C. A. 204n. See § 47, infra. 26. Illinois C. E. Co. v. Behrens, 23.3 U. S. 473, 58 L. Ed. 1051, 6 N. C. C. A. 189n, Ann. Cas. 1914 C 163n, reversing same case reported in 192 Fed. 581. A switchman, on his way to work, was killed while crossing a railroad track in a terminal yard. He was regularly em- ployed as a member of a switching crew. The evidence disclosed that the switch engine used by this switching crew was used indiscrimi- nately in moving both interstate and intrastate commerce. But as there was no evidence, at the time he was killed, the decedent was engaged in interstate commerce or would assist in the switching of interstate cars when he commenced his work, it was held by the court that there could be no recovery under the Federal Employers ' Liability Act. Knowles v. New York, N. H. & H. E. Co., 150 N. Y. Supp. 99. On the other hand, a switchman who had been engaged in assisting the movement of interstate cars in a terminal, was at the time he was struck by a freight train, engaged in setting switches so that the switch engine could pass from a side track to the main line. In deciding that this switchman was engaged in interstate commerce the Federal Circuit Court of Appeals for the Sixth District, said : * ' Did the proof sufficiently tend to show that Morf ord was engaged in inter- state commerce? At the moment, the switch engine was not hauling any cars, and so the true character of the employment can be deter- 84 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS notes a fireman on a switch engine was killed. The switching crew, of which he was a member, had been engaged in moving interstate commerce a short while before he was killed and the crew intended within a short time to again resume the work of moving cars loaded with interstate freight. But at the time of the accident the switching crew, including the fireman, was employed in moving a train of empties from one point in New Orleans to another, all the cars in the ''drag" having originated and being destined to points within the same state. Under these facts the United Statets Supreme Court held mined only by a broader view. The evidence showed that the railway company, in and about these yards, was continuously and indiscrimi- nately hauling intrastate and interstate freight, and that, in this part of the work, no distinction whatever was made between the two classes. Describing the work of this train crew, the yardmaster 's clerk said that it handled both intrastate and interstate shipments, that it handled all classes and character of freight and all kinds of cars during its working hours, and that it did the work of transferring and putting into other trains everything that came in for transfer, making no difference or distinction. When it was sought to get the cards constituting the record which would show exactly what cars had been handled that night, counsel for the railroad said: 'We admit that when these cars come in, they will show freight of every character and description, intrastate and interstate — both kinds. ' In answer to the statement by plaintiff 's counsel that he wished ' to show further that this character of interstate freight came in there and was handled by this train (crew) that night,' counsel for the railroad company admitted that at some time during that night this particular decedent had handled both intrastate and interstate freight, and that other freight of both kinds was coming in and going out of those yards, and that all the tracks down there were used for the handling of both. Upon this stipulation of fact, the trial proceeded. The cir- cumstances here are not, in all respects, the same as those found con- trolling in the Pedersen Case, 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914 C 153, or the Seale Case, 229 U. S. 156, 33 Sup, Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914 C 156. They may also be distinguished, though we think not effectively, from the facts in the EMPLOYES WITHIN THE ACT 85 that the fireman while so engaged and killed by the negligence of a co-employe was not engaged in inter- state commerce within the meaning of the act. This was the first case reaching that court under the Employers' Liability Act in 1908 in which it was held that the employe was not engaged in interstate commerce at the time of the accident. The reason, as given by the court, for so holding was that since the act provides that the servant, in order to recover, must be injured "while he is employed by such carrier in such commerce" and since the switching crew at the time was only moving intrastate cars, the fireman while so working was not within the Zaehery Case, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Gas. 1914 C 159; because, in the latter case, it definitely appeared that the engine was about to be used, or was being prepared for use, in dis- tinctively interstate commerce. The same difference and possible dis- tinction exists with reference to Law v. Illinois Central (C. C. A. 6), 208 Fed. 869, 126 C. C. A. 27. However, we can draw no inference from these and other familiar decisions of the Supreme Court (in- cluding the Behrens Case, 233 U. S. 473, 477, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914 C 163), and the way in which they have interpreted the statute, save that liability is created where the service being rendered is of a general, indiscriminate character, not segre- gated and tied to shipments within the state (as in the Behrens Case, supra, 233 U. S. 478, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914 C 163), but applicable at least as well to the interstate commerce which the carrier is conducting. While it may not be easy in some cases to draw the line between the results of this view and a breadth of con- struction which would make the statute invalid under the Employers' Liability Cases, 207 U. S. 463, 28 Sup. Ct. 141, 52 L. Ed. 297, yet cases like the present are fairly within the Hue of validity. They hardly go beyond fixing the burden of proof and declaring that, where the facts show the case may well have been within the statute, the initial burden is satisfied, and it is for the defendant to show the contrary. It follows that the jury in this case had a right to find, as it did, that at the time of his death Morf ord was employed in interstate com- merce. ' ' Pittsburgh, C, C. & St. L. Ry. Co. v. Glinn, — C. C. A. — , 219 Fed. 148, decided January 5, 1915. 86 INJURIES TO INTERSTATE EMPLOYES ON R.yLROADS terms of the act. The case removed a doubt and uncertainty that had theretofore existed among other courts as to whether trainmen and switching cars engaged sometimes in intrastate and sometimes in interstate commerce came within the provisions of the act. The court said: "Here, at the time of the fatal injury, the intestate was engaged in moving several cars, all loaded with intrastate freight from one point of" the city to another. That was not serv- ice in interstate commerce and so the injury and resulting death were not within the statute. That he was expected, upon the completion of that task, to engage in another which would have been a part of interstate commerce, is immaterial under the statute, for by its terms the true test is the nature of the work being done at the time of the injury. The question is correctly answered in the negative. ' ' § 34. Switching Crews Engaged in Interstate Com- merce. — A member of a switching crew was engaged at the time he was injured in moving oil for the pur- pose of providing fuel for engines used in transport- ing freight and passengers from California to Oregon. The accident occurred in Oregon and the car containing the oil had been brought from Cali- fornia. The court held that he was engaged in interstate commerce.^' A switchman at the time of his death employed in switching cars loaded with merchandise originating in one state and destined to a point in another state, was held to be engaged in interstate commerce within the meaning of the fed- 27. Montgomery v. Southern P. By. Co., 64 Ore. 597, 47 L. E. A. (N. S.) 13n. EMPLOYES "WITHIN THE ACT 87 eral act.^^ A brakeman on an extra freight train while ''breaking up" his train at a terminal was assisting in switching a car loaded with lumber and consigned to a point in another state. He was engaged in interstate commerce.^^ An engineer on a switch engine engaged in delivering cars contain- ing coal which was to be used partly by locomotive engines of the railroad company employed in hauling trains containing interstate commerce was held to have a remedy under the federal act.^° A petition in an action under the federal act declared that the defendant was a common carrier by railroad engaged in interstate commerce and had a freight yard in a town in Florida; that the decedent was an employe of the defendant in said yard as a switchman; that he was required, in the discharge of his duties in the movement of certain cars, to uncouple a car attached to an engine; that the engine was kept at said point to switch and move intrastate and interstate cars as circumstances required. It was held by a majority of the court that this declaration sufficiently alleged that at the time of the injury the decedent and the company were engaged in interstate commerce. Under the later ruling of the United States Supreme Court in Illinois C. R. Co. v. Behrens, no doubt the decision of the court in this case was too broad for, if, at the time of the injury, the decedent was assist- ing in the movement of intrastate cars only, his 28. Rich V. St. Louis & S. F. R. Co., 166 Mo. App. 379. 29. Nashville, C. & S. L. E. Co. v. Banks, 156 Ky. 609, 6 N. C. C. A. 99n, lOon, 186n. 30. Barlow v. Lehigh V. E. Co., 158 App. Div. (N. Y.) 768, 6 N. C. C. A. 191n. 88 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS administrator would not have a remedy under tlie Federal Act.^^ A switchman injured while riding on a car in transit from Indianapolis, Ind., to East St. Louis, m., and which was being switched at the time, to the warehouse at the point of delivery, to be unloaded, was engaged in interstate commerce.^- § 35. Switching' Cars Containing Intrastate Ship- ments Into or Out of Interstate Trains — Conflicting Rulings. — Whether an employe engaged in "setting out" a car containing intrastate shipments or ''pick- ing up" a car containing such shipments from or into, as the case may be, a train containing interstate traffic while such cars are detached from the train, are employed in interstate commerce, is a question which has given the courts considerable difficulty in solving and has resulted in conflicting rulings. The national Supreme Court has not apparently passed upon this phase of interstate employment. In the Behrens case in which the employe was de- clared to be employed in intrastate commerce, the switching crew was engaged in moving cars, all of which originated in and were destined to points in the same state so that the decision does not reach the question here presented.^^ With the decision in the Behrens case before it, the Supreme Court of Kansas, in a case which was presented by able lawyers, decided that a brakeman was employed in interstate commerce while doing 31. Atlantic C. L. Co. v. Eeaves, 125 C. C. A. 599, 208 Fed. 141. 32. Hall V. Vandalia E. Co., 169 lU. App. 12. 33. Illinois C. E. Co. v. Behrens, 233 U. S. 473, 58 L. Ed. 1051, 6 N. C. C. A. 189n, Ann. Cas. 1914 C 163n- EMPLOYES WITHm THE ACT 89 such work.3^ In that case a brakeman on an inter- state train was required to assist in ''picking up" a car standing on the siding and consigned to another point in the same state. This car, while so standing on the siding, was coupled to another car. The engine of the train was uncoupled from the train and moved to the siding and there attached to the two cars which were then pulled out from the siding upon the main line in order to place the car which was to be transported, in the train. After reaching the main line, and while the two cars were coupled up to the engine and detached from the train, the brakeman stepped between the two cars to un- couple the one that was to be taken from the other which was not to be taken. Owing to a defective coupler he was killed. The defective coupler was on the car which was to be taken into the train. Nothing appeared in the record as to the destination of the other car on the siding, except that the crew was to replace it on the siding where they found it. It was moved to the main line simply because it stood between the engine and car which was to be taken into the train. Under these facts the court held that the brakeman was engaged in interstate commerce notwithstanding the fact that the car, the movement of which he was assisting at the time of his death, contained only intrastate traffic and had not become a part of or attached to the train. In another case a brakeman was employed on a 34, Thornbro v. Kansas City, M. & O. Ey. Co., 91 Kan. 684; 139 Pac. 1199, aflBjmed on rehearing, 92 Kan. 681. 90 INJTIEIES TO mTERSTATE EMPLOYES ON RAILROADS train consisting partly of cars destined to points out- side of the state.^^ The train was running between two points in Texas. At Etholine, Texas, a station on the line between the two terminals, a car loaded with merchandise originating at Dallas, Texas, was ' ' set out ' ' from the train for delivery on a siding at that station by making a "flying switch." The brakeman, while this car containing intrastate traffic was being switched, was standing on top of it. In performing the ' ' flying switch, ' ' the engine and sev- eral other cars in the train, including the car men- tioned on which the plaintiff was standing, were detached from the train on the main line. During the performance of the work of switching this car on the siding, the engineer stopped the train before the car which was to be ''set out" was cut loose from the other cars and the brakeman was jerked off, fell and was injured. Under those conditions the Federal Circuit Court of Appeals held that the brakeman was not engaged in interstate commerce. The only difference between the Thombro and the Van Brimmer cases in so far as the feature under discussion is concerned was that in the former the employe was assisting in switching an intrastate car into an interstate train and in the latter the employe was switching an intrastate car out of an interstate train. Of course this difference could have no force in the application of the principle and the cases are squarely in conflict. In the Van Brimmer case it appeared that some of the cars contained interstate 35. Van Brimmer v. Texas & P. Ey. Co. (C, C. A.), 190 Fed, 394, 6 N. C. C. A. 7911. EMPLOYES WITHIN THE ACT 91 shipments as it did in the Thombro case, but whether the cars which were attached to the intrastate car **set out" at the time of the accident contained interstate shipments does not appear from the re- ported opinion any more than the interstate or intrastate character of the other car attached to the intrastate car in the Thornbro case. Of course, if it appeared that the other car attached to the intrastate car in the Thornbro case, at the moment of the accident or the other car attached to the intrastate car in the Van Brimmer case, contained interstate commerce, then unquestionably the employe was engaged in interstate commerce under other rulings of the national Supreme Court. In another case a brakeman was injured through the negligence of a fellow servant while on a sidetrack setting out cars containing only intrastate traffic, although the train on which he was working contained interstate ship- ments. It was held that his work on the sidetrack was an incident to the operation of the entire train in interstate commerce.^*^ It was held in another case that a fireman engaged in switching intrastate cars to be put in a train composed partly of cars containing interstate shipments, was employed in interstate commerce so that his remedy under the federal act was exclusive.^' It would seem on principle that employes engaged 36. Carr v. New York, etc., R, Co., 77 Misc. (N. Y.) 346. The case in the preceding note was called to the attention of the court in the Carr case, but the court held it to be in conflict with other federal decisions and refused to follow it. 37. Southern Ry. Co. v. Jacobs, — Va. — , 6 N. C. C. A. 94n, 186n, 81 S. E. 99. 92 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS in picking up or setting out intrastate cars at sta- tions between terminals out of or into interstate trains, are engaged in interstate commerce, notwith- standing the fact that the car is detached from the train and on a siding at the time of the injury. A train employe is either employed in interstate com- merce or intrastate commerce. He cannot, in the sense of determining liability under the federal act, be employed in both kinds of commerce at the same time so as to have a choice of remedy. Now under the conditions described, if the employe is engaged in intrastate commerce, when does the interstate character of his employment end? Is it when the car while still standing where it was when it was a part of the interstate train, is uncoupled? Or is it when it has left the main line? The entire act of switching intrastate cars from the time of the un- coupling to the delivery on the siding, it seems, is so much a part of the work in the movement of that interstate train and so directly connected with that movement that the employe so engaged, should be held to be employed in interstate commerce. Indeed such employes' connection with interstate com- merce while even on the siding, is as direct and immediate as the work of employes at terminals in preparing interstate trains for movement or in mov- ing materials or instrumentalities to be used on interstate trains, or yard clerks checking incoming- trains in the switching yards after arrival at terminals and after the train employes have left the yards.^^ 38. St Louis & S. F. & T. E. Co. v. Seale, 229 U. S. 156, 57 L. Ed. EMPLOYES WITHIN THE ACT 93 § 36. Section Men and Track Laborers. — All sec- tion men and track laborers while working on or repairing any part of the track or switches used by a common carrier by railroad, indiscriminately,, for both interstate and intrastate commerce, are em- ployed in interstate commerce within the meaning of the national statute.^^ For instance, a section man on an interstate railroad killed while sweeping snow from the switches at a station between terminals was held to be engaged in interstate commerce.^*^ A member of a track gang engaged in ballasting a rail- road track used in transporting freight and pas- sengers between different states was held to be employed in interstate commerce while so engaged.^ ^ A section hand injured while placing a rail in a side- track near a main line over which trains carrying interstate commerce habitually passed was held to be employed in interstate commerce.'*^ A track walker at the time he was struck and injured by an intrastate train was repairing a switch on a track used for both intrastate and interstate commerce and he was held to have a remedy under the federal act.^^ A section man, while driving spikes on a railroad 1129, 3 N. C. C. A. 800, Ann. Gas. 1914 C 156n; Neil v. Idaho E. Co., 22 Idaho 74; North Carolina E. Co. v. Zachary, 232 U. S. 248, 58 L. Ed. 591, 6 N. C. C. A. 194n, Ann. Cas. 1914 C 159n. 39. Southern Ey. Co. v. Howerton, — Ind. — , 6 N. C. C. A. 75n, 82n, 101 N. E. 121, 105 N. E. 1025. 40. Hardwick v. Wabaah E. Co., — Mo. App. — , 168 S. W. 328. 41. San Pedro, L. A. & S. L. E. Co. v. Davide, 127 C. C. A. 454, 210 Fed. 870, 6 N. C. C. A. 197n. 42. Jones v. Chesapeake & O. Ey. Co., 149 Ky. 566. 43. Colasurdo v. Central E. Co. of New Jersey, 180 Fed. 832; affirmed 113 C. C. A. 379, 192 Fed. 901. 94 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS track on wliich the railroad company transported interstate commerce was declared to be employed in interstate commerce.^* A section foreman of a rail- road company operating a line wMch traversed sev- eral states and injured through the negligence of trainmen operating a train hauling interstate com- merce, was held to have a remedy under the federal act.^^ A railroad employe engaged in relaying rails on a switch track near a station on a main line and over which interstate commerce was carried, was held to have a remedy under the federal act.^*' § 37. Employes Preparing or Moving Materials or Instrumentalities to be Used on Interstate Trains. — Employes of a railroad company engaged in the work of furnishing coal, water or oil for engines engaged indiscriminately in pulling interstate and intrastate freight or in furnishing materials, such as ice, for passenger trains hauling any interstate passengers, are engaged in interstate commerce within the terms and conditions of the federal act. A porter on a passenger train when injured was lifting cakes of ice for a water cooler in a coach of a passenger train. The passengers on the train, with the exception of two traveling from one state to another, were making intrastate trips. The court held that the porter was employed in interstate M. Zikos V. Oregon, W. E. & N. Co., 179 Fed. 893, 3 N. C. C. A. 783n, 784. 45. LouisviUe & N. E. Co. v. Kemp, 140 Ga. 657, 6 N. C. C. A. 75n, 196n, overruling in effect Charleston & W. C. E. Co. v. Anchors, 10 Ga. 329, 46. Trnesdell v. Chesapeake & O. Ey. Co., 159 Ky. 718. EMPLOYES WITHIN THE ACT 95 commerce.^^ An engineer at a station engaged in pumping water to be used by engines engaged in pulling either intrastate or interstate commerce, as the business exigencies of the defendant required, was declared to be engaged in interstate com- merce.'*® The court in the last case, answering the contention that a stationary engineer pumping water was not engaged in interstate commerce, said: "Was the relation of his employment to interstate com- merce such that an injury to him tended to delay or hinder the movement of trains engaged in such commerce ? There is but one answer to the question. Water to supply the engines pulling such trains had to be pumped as a necessary incident to the move- ment of trains. If, when he was killed, his place had not been supplied by another, the movement of trains engaged in interstate commerce conducted by the master as well as the local trains, must have ceased altogether. This demonstrates the 'real or sub- stantial' connection of his employment with such commerce. There can be no possible distinction in the relation to interstate commerce between the employment of the fireman who stokes the engine ' 47. Freeman v. Powell, — Tex. — , 144 S. W. 1033; Powell v. Freeman, 105 Tex. 817. A brakeman was injured by falling into a cinder pit while he was walking over a railroad yard looking for a tool boy to get a tin cup for the way car of an interstate train on which he was about to leave the terminal. It was held that he was engaged in interstate commerce. Baltimore & O. E. Co. v. Whitacre, — Md. — , 92 Atl. 1060. This was the first case under the Federal Employers' Liability Act before the Court of Appeals of Maryland. 48. Horton v. Oregon, W. E. & N. Co., 72 Wash. 503, 3 N, C. C. A., 784, 47 L. E. A. (N. &'.) 8n, overruling Tsmura v. Great N. Ey. Co., 58 Wash. 316, 3 N. C. C. A. 786n. 96 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS hauling the train so engaged, and that of the man who pumps the water for the same engine. The engine would not run without the service of either. If there is a distinction, it is too fine-spun and diaphanous for ordinary perception. To hold that there is any material distinction would be as unjust as artificial. The pumper's relation to actual trans- portation of interstate freight and passengers is much more direct and intimate than that of a car repairer or repairer of an engine tender, who bestows his labor on instrumentalities while they are, so to speak, temporarily out of commission. To allow a recovery to these, and not to the pumper supplying the water for motive power in actual transportation would smack of caprice." A railroad employe assisting in the movement of water and coal which was to be used on the engines of an interstate railroad in hauling interstate com- merce, was held to have a remedy under the federal act.^^ A switchman engaged in switching coal into coal chutes of a railroad company which was to be used on engines hauling interstate commerce was employed in interstate commerce.^*^ An employe engaged in dumping coal from a coal chute into the tender of an engine which was being then prepared for the purpose of taking a passenger train from a 49. Barker v. Kansas City, M. & O. Ey. Co., 88 Kan. 767, 43 L. R. A. (N. S.) 1121; contra, Missouri, K. & T. Ey. Co. v. Fesmire, — Tex. — , 150 S. W. 201. Under the facts presented on a second appeal, the court reached a different conclusion in the Barker case. Barker v. Kansas City, M. & O. Ey. Co., — Kan. — , 146 Pac. 358, decided February 6, 1915. See § 171, infra. 50. Barlow v. Lehigh V. E. Co., 158 App. Div. (N. Y.) 768, 6. N. C. C. A. 191n. EMPLOYES WITHIN THE ACT 97 terminal in one state to a point in another state, was engaged in interstate commerce.^ ^ A railroad employe injured while loading tobacco on a car which was to be transported into another state, was held to have a remedy under the federal act." A brakeman carrying ice in a railroad yard to cool a hot box on a car in an interstate train was held to be within the protection of the national statute.^ ^ A member of a switching crew transferring oil from a car to be used on railroad engines hauling inter- state trains was employed in interstate commerce.^* An engineer, when injured, was running an engine between two points in the same state for the purpose of ascertaining whether the engine was in proper condition to pull an interstate train. The court decided he was engaged in interstate commerce.^^ §38. Employes Preparing Interstate Trains for Movement. — Employes of a railroad company while doing any act within the scope of their employment necessary or expedient to prepare interstate trains for movement, are employed in interstate commerce within the terms of the federal act. A fireman on a locomotive engine, inspecting, oiling, firing and pre- paring his engine for an interstate trip, was, while so engaged, within the protection of the national 51. Armbruster v. Chicago, E. I. & P. Ey. Co., — Iowa — , 6 N. C. C. A. 195n, 147 N. W. 337. 52. Illinois C. E. Co.. v. Porter, 207 Fed. 311, 6 N. C. C. A. 98ii, 205n. 53. Illinois C. E. Co. v. Nelson, 122 C. C. A. 258, 203 Fed. 956. 54. Montgomery v. Southern P. E. Co., 64 Ore. 597, 47 L. E. A. (N. S.) 13n. 55. Lloyd v. Southern Ey. Co., — N. C. — , 6 N. C. C. A. 190n, 81 S. E. 1003. Roberts Liabllitiea — 7 98 INJDEIES TO INTERSTATE EMPLOYES ON RAILROADS statute altlioiigh lie liad not at the time of Ms injury and death participated in assisting in the movement of any interstate freight and the engine had not been coupled to the cars of the train.^** A switchman who stepped upon a defective footboard of a switch engine while engaged in making up an interstate train was held to be within the terms of the act.^'^ Applying the same principle no doubt the courts will hold when such facts present themselves for adjudication that car inspectors looking over and inspecting cars in interstate trains, if injured while so employed, are engaged in interstate commerce. A freight conductor of a train loaded with both interstate and intrastate freight which had just been made up at a terminal, walked to the head of the train to give the engineer his clearance card and while returning to the caboose, he walked along a scale track on which some switching was being done and inspected the train as he walked. He was hurt on the scale track. Answering the argument of coun- sel that his employment did not require him to walk on this scale track, the court replied: ''While it may not have been his duty and was carelessness on his part, under the facts of this case, to walk upon said scale track, still we think he was engaged in inter- state commerce to the extent of getting his train ready for that purpose. It seems to us that prepara- tion was being made to have his train leave Spirit 56. North Carolina E. Co. v. Zachary, 232 U. S. 248, 58L. Ed. 591, 6 N. C. C. A. 194n, Ann. Cas. 1914 C 159n. 57. Bramlett v. Southern Ey. Co., — S. C. — , 6 N. C. C. A. 75n, 83n, 82 S. E. 501. EMPLOYES WITHIN THE ACT 99 Lake and that he was engaged in getting his train ready for the transportation of freight both within the state and beyond its boundaries and that he was engaged in interstate commerce within the meaning of that term as used in said Act of Congress. " ^^ An engineer upon his engine preparing it to be attached to an interstate train for the purpose of hauling it, is engaged in interstate commerce.^^ § 39. Employes on Premises of Railroad Company Going to or from Work. — The federal statute not only includes employes actually engaged in interstate commerce but it also covers such employes on the railroad premises while going to or from their work for in such cases they are only doing that which is essential to enable them to discharge their duties as employes engaged in interstate commerce. For instance, a railroad section man had been engaged in ballasting the main track of a railroad which carried freight and passengers between different sta- tions. At the time he was injured he was returning to the camp at the conclusion of his day's labor on a handcar. The court held that he was still engaged in interstate commerce within the terms of the national statute.''^ Another court held that a mem- ber of a track laying gang which worked during the usual hours in the daytime, was employed in inter- 58. Neil V. Idaho E. Co., — Idaho — , 125 Pac. 331. 59. Bower v. Chicago & N. W. E. Co., — Neb. — , 6 N. C. C. A. 213n, 148 N. W. 145. 60. San Pedro, L. A. & S. L. R, Co. v. Davide, 127 C. C. A. 454, 210 Fed. 870, 6 N. C. C. A. 197n; accord, Grow v. Oregon S. L. E. Co., — Utah — , 6 N. C C. A. 83n, 199n, 138 Pac. 398. 100 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS state commerce while asleep at night in a bunk car on a side track.^^ A locomotive fireman in the employ of a railroad company was ordered to proceed from his home to the railway station of the defendant in that town and there secure transportation and go on a certain interstate train to another town in the same state where he was to assist in relieving a train crew which had been employed continuously for more than 16 hours on an interstate train. After receiv- ing this order the fireman hastened to the depot and had reached a crossing in the yards of the railroad company where the cars were cut, when, without warning, the cars were suddenly closed by reason of other cars being negligently "kicked" against the other and he thereby sustained injuries causing his death. In a subsequent action under the federal act the petition alleged that at the time of the hap- pening of the injury and death "and immediately prior thereto, he was engaged in the perfonnance of his duty in the employment of the said Oregon Railroad & Navigation Company in doing and per- forming exclusively the acts and things necessary and properly to be done in the performance of his said duties in obedience to the order of said company, and as a part of the necessities and requirements of the said company in aid of and as a part of the operation of its cars, engines and trains in carrying on defendant's business of interstate commerce by railroad." Under these facts it was held by the 61. Sanders v. Charleston & W. C. Ry. Co., — S. C. — , 6 N. C. C. A. 200n, 81 S. E. 283. See § 14, supra. EMPLOYES WITHIN THE ACT 101 Federal Circuit Court of Appeals that the decedent was employed in interstate commerce, the court say- ing: "The decedent when he was killed was not only on his way to work for his employer, but he was proceeding under the direct and peremptory com- mand of the railroad company to do a designated specific act in the service of the company, to- wit, to move a train then engaged in interstate commerce. He was on the premises of the railroad company and in the discharge of his duty when he met his death and the train which struck him and caused his death was engaged in interstate commerce, and belonged to the same railroad company." *^2 Assuming that the employe was either returning from or going to work for the company in interstate commerce, the question as to whether he was en- gaged in interstate commerce while so going to or from his work, will depend upon the further ques- tion as to when the relation of master and servant commences or ends, as the case may be and the solution of this problem must be made in the light of common law decisions applicable. The relation of master and servant in so far as the obligation to protect the employe is concerned begins when the employe is necessary on the premises of the master pursuant to his contract of employment.®^ A fireman 62. Lamphere v. Oregon E. & N. Co., 116 C. C. A. 156, 196 Fed. 336, 6 N, C. C. A. 187n, 47 L. R. A. (N. S.) In, reversing same case reported in 193 Fed. 248; accord, Missouri, K. & T. Ry. Co. v. Rentz, — Tex. Civ. App. — , 6 N. C. C. A. 195n, 162 S. W. 959. 63. Lamphere v, Oregon, R. & N. Co., 116 C. C. A. 156, 196 Fed. 336, 6 N. C. C. A. 187n, 47 L. R. A. (N. S.) In; Packet Co. v. McCue, 17 Wall, (N. S.) 508, 21 L. Ed. 705; Dishon v. Cincinnati, N. O. & T. P. Ry. Co. (C. C. A.), 126 Fed. 194; Olsen v. Andrews, 168 Mass. 102 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS left his engine in tlie railroad yards and went to his boarding house on a personal errand. While he was walking through the yards he was struck by some cars. On his return he expected to fire an engine pulling an interstate train. It was held that he was engaged in interstate commerce at the time of the casualty.^^ A hostler who worked in a roundhouse on engines used in hauling both interstate and intra- state commerce was held not to be engaged in inter- state commerce while he was walking through the yards to a rest shanty on the property of the railroad company.^^ An extra brakeman, working for a rail- road company, having been sent out on a passenger train carrying interstate passengers as a brakeman was, at the time of his injuries, retuniing on another train on a ''pass" back to the division point. In railway parlance he was "dead-heading" back to his headquarters. The court held that he was engaged in interstate commerce although he was not em- ployed on the train he was riding on.*''' A member of a track laying gang while resting on Sunday in a camp on the right of way was directed by one of the foremen to get on a passing train in order to get the 261; Boldt v. New York C. E. Co., 18 N. Y. 432; Ewald v. Chicago & N. W. R. Co., 70 Wis. 420, 5 Am. St. Rep. 178; PhUadelphia, B. & W. R. Co. V. Tucker, 35 App. Cas. (D. C.) 123, 1 N. C. C. A. 841n. 64. North Carolina R. Co. v. Zachary, 232 U. S. 248, 58 L, Ed. 591, 6 N. C. C. A. 194n, Ann. Cas. 1914 C 159n. 65. Gray v. Chicago & N. W. Ry. Co., 153 Wis. 636, 4 N. C. C. A. 225n. The court in this case also held that hostlers working on engines used indiscriminately in carrying both interstate and intra- state commerce were not engaged in interstate commerce. See § 31, supra. 66. St. Louis & S. W. Ry. Co, v. Brothers, — Tex. Civ. App. — , 165 S. W. 488. EMPLOYES WITHIN THE ACT 103 mail for the camp at the next station. When he tried to get on the train he fell and was injured. The court held that he was not engaged in interstate com- merce.^^ A railroad employe at the time he was injured had completed his work for the day and had left the work shop and the premises of the railroad company. He was walking along a street when he was struck by a piece of timber thrown from a train belonging to the railroad company for which he worked. The court held that the relation of master and servant did not exist so as to render the company liable for the act of another employe in negligently throwing the timber.*^^ A railroad employe while riding home on one of the company's trains was held not employed in interstate commerce as there was no evidence introduced to show that he was then or had been employed in interstate commerce.*'^ The opinion does not disclose the nature of his employ- ment for the railroad company. § 40. Employes Engaged in the Original Construc- tion of Instrumentalities for Future Use in Interstate Commerce Not Within the Act. — Employes assisting in the original construction of tracks, tunnels, bridges, engines or cars which have never been used 67. Meyers v. Norfolk & W. Ey. Co., — N. C. — , 78 S. E. 280. The court in this case based its decision on three cases subsequently over- ruled in a higher court, St. Louis, S. F. & F. E. Co. v. Scale, 229 U. S. 156, 57 L. Ed. 1129, Ann. Gas. 1914 C 156n; Lamphere v. Oregon R. & N. Co., 193 Fed. 248, 116 C. C. A. 156, 196 Fed. 336, 6 N. C. C. A. 187n, 47 L. E. A. (N. S.) In; Pederson v. Delaware, L. & W. K. Co., 117 C. C. A. 33, 197 Fed. 537. 68. Fletcher v. Baltimore & O. E. Co., 168 U. S. 135, 42 L. Ed. 4J.1, reversing same case reported in 6 App. Cas. (D. C.) 385. 69. Bennett v. Lehigh V. E. Co., 197 Fed. 578. 104 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS as instrumentalities of interstate commerce, are not employed in interstate commerce within the meaning of the statute/*^ An interstate railroad company was constructing a "cnt-off" so as to shorten a route used by it which, when completed, would have been used for hauling interstate commerce. A teamster was engaged in driving a horse which pulled cars filled with dirt and rock along the track out of a tunnel which was a part of the "cut-off" line. It was held that he was not engaged in inter- state commerce and the mere fact that the line, when completed, would be used in transporting interstate commerce, would make no difference."^ In that case, the court said: "Stripped of the conclusions in the complaint, we have the fact that the defendant is engaged in constructing a 'cut-off' on its line of road so as to shorten the route used by it now and eliminate some of the inconveniences, and possible expense, in the operation of the line at the present time. There is no statement that this line, upon which the work is being performed, is now used, but the complaint in paragraph 3 says, ' and through which, when completed, the interstate commerce * * * will be routed.' The plaintiff was not himself engaged upon any interstate commerce, nor was he injured by any one connected with the opera- 70. Pederson v. Delaware, L. & W. E. Co., 229 U. S. 146, 57 L. Ed. 1125, 6 N. C. C. A. 198ii, 924n, Ann. Cas. 1914 C 153n, reversing the same ease in 117 C. C. A. 33, 197 Fed. 537, which affirmed 184 Fed. 737. 71. Jackson v. Chicago, St P. & M. E. Co., 210 Fed. 495, 6 N. C. C. A. 200n. See dissenting opinion in Grow v. Oregon S. L. R. Co., — Utah — . 138 Pac. 398, 6 N. C, C. A. 83n, 199n. EMPLOYES WITHIN THE ACT 105 tion of any of the agencies which actually trans- ported interstate commerce. The building of this cut-off is a facility which is to be used by the de- fendant, when completed, as an engine or cars, or any other appliance under construction might be considered for use when completed. Can it be said that a person engaged in the building of engines or cars, or any other facilities to be used by a common carrier engaged in interstate commerce, comes within the provisions of the Employers' Liability Act? The act deals only with the liability of a carrier engaged in interstate commerce for in- juries sustained by its employes while engaged in such commerce. Second Employers' Liability Cases, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327 (1 N. C. C. A. 875), 38 L. R. A. (N. S.) 44. The act is not 'concerned with the construction of tracks, bridges, engines, or cars which have not as yet become instru- mentalities in such commerce, but only with the work of maintaining them in proper condition after they have become such instrumentalities, and during their use as such. ' Pederson v. Del., Lack. & West. R R., 229 U. S. 146, 152, 33 Sup. Ct. 648, 57 L. Ed. 1125 (6 N. C. C. A. 198n, 924n, Ann. Cas. 1914 C 153n). The language of the complaint, 'when completed, the interstate commerce * * * -^in \)q routed' through the tunnel, conclusively shows that it is not now so employed; hence the act cannot apply, and Supreme Court decisions supra are decisive. Tested by the requirements of the act, I do not think that the tunnel was used as an appliance in trans- porting interstate commerce, nor was the plaintiff 106 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS employed in sucli commerce. All of the cases cited, I think, are in harmony with this conclusion." § 41. Repairing or Rebuilding Instrumentalities Used in Interstate Commerce. — On the other hand a carpenter employed in sawing boards and nailing them in place on the wall of a new office in a freight shed of a railroad company which was engaged in both interstate and intrastate commerce, was held to be employed in interstate commerce.'^^ The rea- son for so holding was that freight sheds, depots and warehouses, or other facilities provided and used by a carrier for receiving, handling and discharging interstate freight were as much instrumentalities used in interstate commerce as engines, cars and bridges, so used indiscriminately in both kinds of commerce. Distinguishing this case from the cases cited in the foregoing section, the court said : ' ' Claim is made that, since plaintiff at the time of his injury was at work in framing a new office in the freight shed, he is in the position of one employed to con- struct buildings, tracks, engines, or cars, which have not yet become instrumentalities of commerce. But the freight shed in question was being so used by the defendant in its interstate business. The work in which the plaintiff was engaged, as appears from 72. Eng. V. Southern Ry. Co., 210 Fted. 92, 6 N. C. C. A. 78n, 79n, 200n. A carpenter while employed in moving debris from a roundhouse which had been partially destroyed by fire in order that a new roundhouse might be erected for railroad purposes was injured while so working. The roundhouse was used by the defendant in housing engines engaged in hauling interstate commerce. The court held that the plaintiff was engaged in interstate commerce, as he was repairing an instrumentality of such commerce. Thomas v. Boston & M. R. Co., 219 Fed. (C. C. A.) 180. EMPLOYES WITHIN THE ACT 107 tlie complaint, was in the nature of the repair of an instrumentality so used, and not the construction of new work." Applying the same principle, another court held that an employe in the signal service was employed in interstate commerce when he was in- stalling a new block system to be used in signaling trains on an interstate railroad.^ ^ § 42. Yard Clerks Engaged in Interstate Com- merce, When. — Yard clerks in the employ of com- mon carriers by railroad while examining and re- cording the numbers and initials of cars, inspect- ing and making a record of the seals on car doors, checking the cars with the conductors' lists or put- ting labels on the cars to guide switching crews are employed in interstate commerce if trains upon wliich they are so working have any cars containing interstate commerce.'^^ In the case of St. Louis, S. F. & T. R. Co. v. Scale, cited in the notes, the decedent was a yard clerk and at the time of his injury and death he was on his way through a railroad yard to one of the tracks to meet an incoming freight train which had arrived from another state. He was going to the train to take the numbers of the cars and otherwise perform his duties in respect to them. Wliile so engaged he was struck by a switch engine, which, it was claimed, was negligently operated by other employes. The Supreme Court of the United States held that the 73. Grow V. Oregon, S. L. Co., — Utah — , 6 N. C. C. A. 83n, 199ii, 138 Pac. 398; accord, &'aunders v. Southern Ey. Co., — N. C. — , 83 S. E. 573. 74. St. Louis, S. F. & T. E. Co. v. Seale, 229 U. S. 156, 57 L. Ed. 1129, 3 N. C. C. A. 800, Ann. Cas. 1914 C 156n. 108 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS decedent was engaged in interstate commerce at the time of his death, Mr. Justice Lamar, dissenting. Discussing the legal effects of the facts mentioned, the court said: "In our opinion the evidence does not admit of any other view than that the case made by it was within the federal statute. The train from Oklahoma was not only an interstate train but was engaged in the movement of interstate freight; and the duty which the deceased was performing was connected with that movement, not indirectly or remotely, but directly and immediately. The in- terstate transportation was not ended merely be- cause that yard was a terminal for that train, nor even if the cars were not going to points beyond. Whether they were going further or were to stop at that station, it still was necessary that the train be broken up and the cars taken to the appropriate tracks for making up outgoing trains, or for unload- ing or delivering freight, and this was as much a part of the interstate transportation as was the movement across the state line." § 43. Pullman Employes. — Persons employed jointly by a sleeping car company and a railroad company are within the protection of the federal act. A Pullman porter was employed on a sleeping car which was owned jointly by the Pullman Com- pany and a railroad company and the car was oper- ated by them as an association under a contract. It was held that the administrator of his estate could recover under the national statute.'^^ On the other hand in another case the railroad company simply 75. Oliver v. Northern P. E. Co., 196 Fed. 432. EMPLOYES WITHIN THE ACT 109 hauled cars of the Pullman Company under a con- tract and it was decided that a porter on the sleep- ing car belonging to the Pullman Company was not an employe of the railroad company within the mean- ing of the federal statute/^ § 44. Agents of Express Companies. — Agents of express companies riding on passenger trains are not employes of the railroad company within the meaning of the federal act where they are paid and employed by the express companies although they handle baggage of passengers on the train.^^ In another case it was decided that an express messen- ger employed and paid by an express company, while riding on a passenger train of a railroad company and looking after the express business of his em- ployer was presumed to be a passenger and not a servant of the railroad company although he was killed while so employed through the negligence of the railroad company's employes."^ It was held by the court that, in the absence of any evidence that he was employed by the railroad company, the evi- dence was sufficient to show that the negligence of the defendant caused his death. § 45. Miscellaneous Employes. — A gardner who was employed by a common carrier by railroad of interstate commerce, in taking care of the depot premises and burning trash gathered in the yard was held not to be employed in interstate com- 76. Robinson v. Baltimore & O. R. Co., 40 App. Caa. (D. C.) 169. 77. Missouri, K. & T, R. Co. v. West, — Okla. — , 134 Pac. 655. 78. Missouri, K. & T. R. Co. v. Blalack, 105 Tex. 296. 110 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS merce.''^'^ In an action under the federal act a pe- tition alleged that the defendant railroad company was a common carrier engaged in interstate com- merce ; that as a part of its interstate transportation it owned and operated a telegraph line using it for the purpose of directing the operation of trains ; that the plaintiff was employed by the company in repair- ing this line and was injured while doing so. The court held that the petition pleaded sufficient facts to show that the plaintiff was engaged in interstate commerce. ^^ A watchman on a "dead" locomotive engine being transported in an interstate train was held to have been engaged in interstate commerce.®^ A laborer employed in carrying coal to heat the stoves in a car repair shop of a common carrier by railroad where other employes were engaged in re- pairing rolling stock used interchangeably in trans- porting intrastate and interstate commerce, was held to be within the protection of the federal act.^^ §46. Instances Where Employes Were Engaged in Interstate Commerce but Erroneously Held to Have Been Engaged in Intrastate Commerce. — Since the decisions of the United States Supreme Court in the Pedersen, Scale, Walsh, Zachary and Behrens cases ^^ some uncertainty as to when a railroad em- 79. Galveston, H. & S. A. Ry. Co. v. Chojnacky, — Tex. Civ. App. — , 163 S. W. 1011. 80. Deal v. Coal & Coke Ry. Co., 215 Fed. 285. 81. Atlantic C. L. R. Co. v. Jones, 9 Ala. 499, 6 N. C. C. A. 26n, 80n, 192n. 82. Cousins v. Illinois C. R. Co., — Minn. — , 6 N. C. C. A. 182, 148 N. W. 58. 83. Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, 57 L. Ed. 1125, 6 N. C. C. A. 198n, 924n, Ann. Cas. 1914 153n; St. Louis, S. F. EMPLOYES "WITHIN THE ACT 111 ploye is engaged in interstate commerce has been removed and decisions in conflict with the rulings in these cases are erroneous for the final arbiter as to when a railroad servant is employed in interstate commerce is the national Supreme Court. Some of these erroneous decisions will now be briefly re- viewed. The Georgia Court of Appeals held that a mem- ber of a track gang repairing the track on a railroad carrying both intrastate and interstate commerce was not engaged in interstate commerce.^^ This de- cision is contrary to the decision in the Pedersen case, supra. The Supreme Court of Wisconsin held that a boiler maker repairing a boiler of a derrick car on a wrecking train was not engaged in inter- state commerce.*^ It appeared from the evidence that this wrecking train was used in clearing wrecks on a track used for the transportation of interstate commerce not only in one state but in other states as well for the railroad company. The court in this decision cited and followed the decision of the Fed- eral Circuit Court of Appeal in deciding the Peder- sen case which was later overruled by the national Supreme Court. The decision of the court in the & T. E. Co. V. Seale, 229 U. S. 156, 57 L. Ed. 1129, 3 N. C. C. A. 800, Ann. Cas. 1914 C 156n; Walsh v. New York, N. H. & H. R. Co., 223 U. S. 5, 56 L. Ed. 327, 1 N. C. C. A. 875, 38 L. E. A. (N. S.) 44; North Carolina E. Co. v. Zachary, 232 U. S. 248, 58 L. Ed. 591, 6 N. C. C. A. 194n, Ann. Cas. 1914 C 159n; lUinois C. E. Co. v. Behrens, 233 U. S. 473, 58 L. Ed. 1051, 6 N. C. C. A. 189n, Ann. Cas. 1914 C 163n. 84. Charleston & W. C. Ey. Co. v. Anchors, 10 Ga. App. 329. 85. Euck V. Chicago, M. & St. P. Ey. Co., 153 Wis. 158, 6 N. C. C. A. 204n. 112 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS Euck case is not in harmony with the controlling rulings of the national courts. And in still a later case the Supreme Court of Wisconsin held that hostlers in roundhouses working on engines used in- discriminately in carrying both interstate and intra- state commerce were not employed in interstate com- merce.^*^ This decision too is in conflict with the rulings of the national courts. The New Jersey court of appeals decided that an employe unloading new rails with which the track was to be repaired was not engaged in interstate commerce. Assuming that the proof in that case developed what is true of practically every railroad in the United States, that interstate and intrastate commerce were carried over the track indiscrimi- nately, the court's ruling was wrong.^''' The same court in a later case held that an employe was en- gaged in intrastate commerce when he was clearly under the facts engaged in interstate commerce.^* The plaintiff in that case was injured while placing a cover over the mechanism of a switch which he had just oiled. The switch connected two lines of track, one used for freight and the other for pas- senger trains for either interstate or intrastate busi- ness as the business necessities of the railroad company required. While so engaged the plaintiff was struck by a car which was not at the time being used for the transportation of freight nor did it 86. Gray v, Chicago & N. W. Ey. Co., 153 Wis. 636, 4 N. C. C. A. 225n. 87. Pierson v. New York, S. & W. E. Co., 83 N. J. L. 661. 88. Granger v. Pennsylvania E. Co., — N. J. L. — , 86 Atl. 264. EMPLOYES WITHIN THE ACT 113 appear that the movement of the car had any rela- tion to the making up of a train for the purpose of engaging in interstate commerce. It was held that the plaintiff's cause of action was not governed by the federal act and that he was not engaged in interstate commerce. This ruling was erroneous for the reason that the switch on which plaintiff was working had a direct and immediate connection with interstate commerce. The question whether the car was being used in interstate commerce was entirely immaterial for the reason that the federal act in- cludes causal negligence of agencies used wholly in intrastate commerce.^^ A federal district court held that a carpenter working on a railroad bridge on a track carrying both kinds of commerce was not engaged in inter- state commerce.^" This case is in effect overruled by the decision of the United States Supreme Court in the Pedersen case. The Supreme Court of Nebraska held that an engineer running a '4ight" engine be- tween two points in that state, which, the defendant claimed, was ultimately destined to a point in an- other state, was not engaged in interstate com- merce.®^ Under the ruling of the Supreme Court in the Zachary case, supra, an employe hauling empty 89. Second Employers' Liability Cases, 223 U. S. 1, 56, 56 L. Ed. 327, 1 N. C. C. A. 875, 38 L. E. A. (N. S.) 44; Pedersen v. Delaware, L. & W. Ey. Co., 229 U. S. 146, 57 L. Ed. 1125, 6 N. C. C. A. 198n, 924n, Ann. Cas. 1914 C 153n; Colasurdo v. Central E. Co. of New Jersey, 180 Fed. 832; s. c, 113 C. C. A. 379, 192 Fed. 901. Section 20, supra. 90. Taylor v. Southern Ey. Co., 178 Fed. 380. 91. Wright V. Chicago, E. I. & P. E. Co., 94 Neb. 317, 6 N. C. C. A. 183n. Boberta Liabilities — S 114 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS cars from a point in one state to a point in another is engaged in interstate commerce and the ruling in the Wright case is wrong if the engine was destined to another state and it matters not that the employe was not going beyond the state. It is not, however, very clear in the report of the case whether the en- gine was on its way to machine shops in another state. In a case decided by the Supreme Court of Louisiana a hostler working on an engine in a round- house which had just returned from an intrastate journey, was held not engaged in interstate com- merce.^2 But the evidence also disclosed that on the previous day the engine had been used in transport- ing interstate commerce and it was used indiscrim- inately in hauling both kinds of cormnerce. The court held that a hostler repairing engines employed indiscriminately in moving both interstate and in- trastate commerce, was not engaged in interstate commerce. This decision too is not in harmony with the rulings of the national courts. § 47. Instances Where Employes Were Engaged Exclusively in Intrastate Commerce but Errone- ously Held by the Courts to Have Been Engaged in Interstate Commerce. — In the cases discussed in the preceding paragraph the courts erroneously held that the employes were engaged in intrastate com- merce. There are other cases where employes were engaged exclusively in intrastate commerce but were erroneously held by the courts to have been engaged in interstate commerce. 92. LaCasse v. New Orleans, T. & M. E. Co., — La. — , 6 N. C. C. A. 19611, 437n, 64 So. 1012. EMPLOYES WITHIN THE ACT 115 The Supreme Court of Oregon decided that a mem- ber of a switching crew while coupling a switch engine to a private car used wholly within the state in intrastate commerce and injured while so work- ing, was employed in interstate commerce. The proof, however, disclosed that the switching crew was engaged indiscriminately in moving cars con- taining both intrastate and interstate commerce but at the time of receiving the injury they were en- gaged solely in moving the intrastate car men- tioned.^^ Although the decision in this case was handed down after the opinion of the Supreme Court of the United States in the Behrens case,^^ that case was not called to the attention of the court and no doubt a different conclusion would have been reached had the court considered the facts in the light of the ruling in the Behrens case. The Supreme Court of Minnesota held that a freight conductor was engaged in interstate com- merce when under the facts it seems that he was engaged in intrastate commerce.^^ The evidence in that case disclosed that the injured conductor was generally employed in interstate commerce. But at the time he was injured in a head-end collision the train did not contain any interstate commerce and was moving between two points in the same state. At the time of the accident he had in his train the 93. Oberlin v. Oregon W. R. & N. Co., — Ore. — , 6 N. C. C. A. 75n, 79n, 95n, 188n, 142 Pac. 554. 94. Illinois C. E. Co. v. Behrens, 223 U. S. 473, 58 L. Ed. 1051, 6 N. C. C. A. 189n, Ann. Cas. 1914 C 163n. 95. Peery v. Illinois C. R. Co., 123 Minn. 264, 6 N. C. C. A. 184n; s. c, — Minn. — , 150 N. W. 382. 116 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS engine, way car and also another disabled locomo- tive. No facts appeared as to the use of the disabled locomotive. Under these circumstances the con- ductor is presumed to have been engaged in intra- state commerce.'*'^ In another case a federal dis- trict court held that a switching crew generally en- gaged in moving interstate commerce but at the time employed in moving intrastate commerce solely, was engaged in interstate commerce within the meaning of the federal act.*^^ But this case was reversed when it reached the Supreme Court of the United States. § 48. Employes Presumed to Be Enga,ged in Intra- state Commerce. — Until the contrary is alleged or shown, it will be presumed in an action for injuries to a railroad employe through the negligence of his employer in the use or operation of its railway within the state, that he was engaged in intrastate com- merce and that he is seeking a remedy under the laws of the state.'' ^ But another court held that in such actions the court will take judicial notice that the railroad company was engaged in interstate commerce.^^ § 49. Intrastate Employes Injured by Negligence of Interstate Employes or Instrumentalities of In- terstate Commerce Have No Remedy Under Federal Act. — When a servant is employed exclusively in in- 96. Section 48, infra. 97. Behrens v. Illinois C. E. Co., 192 Fed. 581, 3 N. C. C. A. 781n, 783. 98. Bradbury v. Chicago, R. I. & P. Ry, Co., 149 Iowa 51 ; Erie E. Co. V. Welsh, — Ohio — , 6 N. C. C. A. 77n, 188n, 105 N. E. 190n; Chicago, R. I, & P. Ry. Co. v. McBee, — Okla. — , 145 Pac. 331. 99. Mcintosh v. St. Louis, S. F, R. Co., — Mo. App. — , 168 S. W. 821. EMPLOYES WITHIN THE ACT 117 trastate commerce at the time of his injury, lie has no remedy under the federal act, although injured by another employe engaged at the time in interstate commerce or by instrumentalities or appliances used at the time in interstate commerce, as for instance, an interstate train on an interstate highway; be- cause under such conditions the employe himself is not, at the time of the injury, engaged in interstate commerce. Under the very terms of the act a recov- ery is limited to employes who are injured "^ while" employed in interstate commerce. Under the con- ditions named, it is true that the carrier is engaged in interstate commerce but the injured employe is not. However, as pointed out in another paragraph, if the employe is engaged in interstate commerce at the time of his injury although the employe whose negligence caused the injury is engaged exclusively in intrastate commerce or the instrumentality caus- ing the injury is being used solely in intrastate com- merce, the injured employe's remedy is nevertheless controlled by the federal act.^^^ §50. Decisions Construing Federal Safety Act Not Always Applicable in Construing Employers' Liability Act. — In determining when an employe is engaged in interstate commerce under the Federal Employers ' Liability Act, some courts have been led into error by following federal decisions construing the Federal Safety Appliance Act. Such decisions 100. Colasurdo v. Central E. Co. of New Jersey, 180 Fed. 832, affirmed in 192 Fed. 901; Pedersen v. Delaware, L. & W. E. Co., 229 U. S. 146, 57 L. Ed. 1125, 6 N. C. C. A. 198n, 924n, Ann. Cas. 1914 C 153n. 118 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS may or may not be applicable, depending altogether whether they were construing that act as it was be- fore the amendment of 1903 or since. Prior to the 1903 amendment to the Safety Appliance Act, it was necessary for the plaintiff to prove in order to re- cover for an injury due to a violation of that law, that the car having a defect, was at the time of the injury ''hauled or permitted to be hauled or used on its line in moving interstate traffic." Decisions construing the act as it thus read would no doubt throw light on some questions under the liability act. But since the amendment of 1903, the Federal Safety Appliance Act is very much broader than the Em- ployers' Liability Act for by that amendment every interstate railroad is required to equip all its cars as provided by the safety act whether used in intra- state or interstate commerce. This broad exercise of power extending the Safety Appliance Act to all cars on interstate highways by railroad has been sustained by the national Supreme Court.^ As prac- tically all railroads in the United States are inter- state highways, the Safety Appliance Act applies to all cars on such railroads. The decision cited in the notes holding that even cars used in intrastate com- merce are included within the provisions of the Safety Appliance Act has sometimes been cited as throwing light on the proposition as to when an employe is engaged in interstate commerce under the Federal Employers' Liability Act. Such de- 1. Southern Ey. Co. v. United States, 222 U. S. 20, 56 L. Ed. 72, 3 N. C. C. A. 822 ; Southern Ry. Co. v. Crockett, 234 U. S. 725, 58 L. Ed. 1564, 6 N. C. C. A. 94n; Stearns v. Chicago, K. I. & P. Ey. Co., — Iowa — , 148 N. W. 128. EMPLOYES WITHIN THE ACT 119 cisions are not applicable for if an employe is in- jured while working on cars hauling only intrastate traffic on an interstate railroad due to any violation of the Federal Safety Appliance Act, he has his remedy under that statute although he was not en- gaged at the time in interstate commerce.^ § 51. When Questions of Employment in Interstate Commerce Should Be Submitted to Jury. — Where, under all the evidence in the case, any essential mat- ter bearing on the question of whether the employe was at the time of the injury engaged in interstate commerce, is in doubt, the question should be sub- mitted to the jury under proper instructions.^ In an action for damages under the federal act the plaintiff may state a cause of action under one count under the state law and in another count under the federal act and if the evidence is such at the close of the introduction of the testimony that it is doubtful in which commerce he was engaged, it becomes a mixed question of law and fact to be submitted to the jury under proper instructions.^ But the Supreme Court of Oregon held that it was error to submit to the jury whether the common law, state law or federal act, applied.^ 2. Southern Ry. Co. v. United States, 222 U. S. 20, 56 L. Ed. 72, 3 N. C. C. A. 822. 3. North Carolina R. Co. v. Zachary, 232 U. &'. 248, 58 L. Ed. 591, 6 N. C. C. A. 194n, Ann. Cas. 1914 C 159n, reversing same case on other grounds reported in 156 N. C. 496; accord, Southern P. Ry. Co. V. Vaughan, — Tex. Civ. App. — , 165 S. W. 885. 4. Atkinson v. Bullard, — Ga. App. — , 6 N. C. C. A. 80n, 183n, 80 S. E. 220. See § 172, infra. 5. OberUn v. Oregon W, R. N. Co., — Ore. — , 6 N, C. C. A. 75n, 79n, 95n, 188n, 142 Pac. 554. 120 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS If it appears at the close of the evidence as a mat- ter of law which statute applies, no doubt it would be error to submit the question to the jury as the court should pass on all questions of law; but if the evidence is such that reasonable men could draw dif- ferent conclusions as to whether the defendant and the injured employe were engaged in intrastate com- merce or interstate commerce, then it would be error for the court to decide that issue as all questions of facts should be submitted to the jury under proper charges declaring the law applicable. The conflict between the decisions cited is more apparent than real.^ 6. Patry v. Chicago & W. I. Ey. Co., — HI. — , 106 N. E. 105, reversing same case reported in 185 HI. App. 361; Atchison, T. & S. F. Ey. Co. V. Pitts, — Okla. — , 145 Pac. 1148. CHAPTER IV RAILROADS INCLUDED WITHIN THE FED- ERAL ACT § 52. General R«le as to When Eailroad Companies Are Engaged in Interstate and Foreign Commerce. § 53. Railroads Within the Act Defined. § 54. Eailroad Must Be a Common Carrier — Tap Lines and Logging Roads. § 55. Proof That Injured Servant Is Employed in Interstate Com- merce Sufficient to Show That the Railroad Is So Engaged. § 56. Receivers of Railroad Corporations Included Within the Act. § 57. Lessor of Railroad Engaged in Interstate Commerce Liable, When. § 58. Interurban Electric Railroads Included Within the Act. § 59. Railroads Carrying Passengers and No Freight. § 60. Ships or Vessels Not a Part of a Railroad System. § 61. Street Railroads Not Within the Terms of the National Act. § 62. Hauling Empty Cars or Company Pi-operty Over State Line. § 63. Instances Showing Engagement by Railroad Companies in Inter- state Commerce. § 64. Beginning and Ending of Interstate Character of Shipments. § 65. Intermediate Carrier with Line Wholly in One State Partici- pating in Movement of Interstate Shipments. § 66. Sliipments Between Two Points in Same State Passing Through Another State in Transit. § 67. Eailroad lines Confined Within Limits of a Single State Engaged in Interstate Commerce When Transporting Through Shipments To or From Another State. § 68. When Reshipment from Point of Delivery Changes Interstate Character of Traffic. § 69. When Reshipment from Point of Delivery Does Not Change In- terstate Character of Traffic. § 70. All Carriers by Railroad and All Their Employes Within Terri- tories Included. §52. General Rule as to When Railroad Com- panies Are Engaged in Interstate and Foreign Com- 121 122 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS merce. — If a common carrier by railroad transports passengers, freight, express, baggage or other mer- chandise from one state in the United States to an- other, or from a state or territory to a territory or vice versa, or from the District of Columbia to a state or territory or vice versa, or from a state or ter- ritory to a foreign nation or vice versa, the carrier is engaged in interstate commerce or foreign com- merce within the meaning of the Federal Employers' Liability Act. Carriers engaged in foreign com- merce while within the boundary of the United States are included in the act as well as carriers engaged in interstate commerce. §53. Railroads Within the Act Defined.— The Federal Employers' Liability Act is confined solely to common carriers engaged in interstate commerce by railroad. The Hepburn Amendment of 1906 to the Interstate Commerce Act (Act June 20, 1906, c. 3591, 34 Stat. 584 [Fed. Stat. Aim. 1909 Supp. p. 255] ) provides that a railroad, as used in that act, shall include "all bridges and ferries used or oper- ated in connection with any railroad, and also all the road in use by any corporation operating a railroad, whether owned or operated under a contract, agree- ment, or lease, and shall also include all switches, spurs, tracks, and terminal facilities of every kind used or necessary in the transportation or delivery of any of said property." It would seem that this definition following the application of analogous principles by the courts in other cases, would apply in construing what is or is not a railroad within the RAILROADS WITHIN THE ACT 123 meaning of the national act though the question has not apparently been directly passed upon. The Federal Circuit Court of Appeals for the sixth circuit in 1904, construing the Safety Appliance Act decided that the Interstate Commerce Act and the Safety Appliance Act were in pari materia so that the definition of a railroad given in the former con- trolled in construing the latter. ^ After the passage of the Hepburn Amendment, which defined a rail- road within the meaning of the Interstate Commerce Act as quoted herein, it was held in another case that this definition of a railroad governed in con- struing what was a railroad under the Safety Ap- pliance Act and the court decided that a private switch leading to a mill used by a railroad company in transporting cars in interstate commerce to and from the mill as they were consigned, with the rail- road's own engines and cars constituted a "rail- road" within the meaning of the Safety Appliance Act.2 § 54. Railroad Must Be a Common Carrier— Tap Lines and Logging Roads. — In order to recover un- der the national act, the injured employe must not only show that the defendant owned or operated a railroad, but he must further show that such rail- road is operated as a common carrier.^ A common 1. United States v. Geddes, 65 C. C. A. 320, 131 Fed. 452. 2. Gray v. LouisvUle & N. E, Co., 197 Fed. 874, 4 N. C. C. A. 484n. 3. Second Employers' Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 1 N. C. C. A. 875, 38 L. R. A. (N. S.) 44; Pedersen v. Delaware, L. & W. Ey. Co., 229 U. S. 146, 57 L. Ed. 1125, 6 N. C. C. A. 198n, 924n, Ann. Cas. 1914 C 153n; Bay v. Merrill & Eing Lumber Co., 211 Fed. 717. 124 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS carrier is one who undertakes to transport for hire from one place to another, passengers or goods of such as choose to employ him."* A company owned a tract of timber land which it was engaged in log- ging and also owned a railroad on which it trans- ported its logs from the woods to Puget Sound, eighty per cent of the output being shipped to other states or countries. The company's articles of in- corporation authorized it to do business as a com- mon carrier; but in fact the services rendered on its road had all been private and only for the pur- pose of carrying the logs to the Sound. The court held that the transportation of the logs did not con- stitute interstate commerce within the rule that a commodity is not engaged in interstate commerce until it is entered on its final passage to another state or foreign country and hence the company was not liable under the Federal Employers' Liability Act.5 Shortly after this decision was handed down on February 20, 1914, the Supreme Court of the United States in May, 1914, decided the tap line cases.^ In those cases, the question was whether certain log- 4. Nordgard v. Marysville & N. Ry. Co., 211 Fed. 721, 6 N. C. C. A. 207n, affirmed in 218 Fed. (0. C. A.) 737, Judge Eoss dissenting on the proposition as to whether the railroad was a common carrier; 2 Words & Phrases, 1312; Jackson, etc.. Iron Works v. Hurlbut, 158 N. Y. 34, 70 Am. St. Eep. 432 ; Fort Worth B. Ey. Co. v. Perry- man, — Tex. Civ. App. — , 6 N. C. C. A. 204n, 158 S. W. 1181. 5. Bay v. MerriU & Eing Lumber Co., 211 Fed. 717; Nordgard v. MarysviUe & N. Ey. Co., 211 Fed. 721, 6 N. C. C. A. 207n; the Daniel BaU Case, 10 Wall. (U. S.) 557, 19 L. Ed. 999; Coe v. Errol, 116 U. S. 517, 525, 29 L. Ed. 715. % Atchison, T. & S. F. E. Co. v. Victoria, F, & W. E. Co., 234 U. S. i, 58 L. Ed. 1185. RAILEOADS WITHIN THE ACT 125 ging railroads in Louisiana were common carriers by railroad or were mere ''plant facilities" as that doctrine has been expounded by the Interstate Com- merce Commission and the courts. The proof was different from that in the Bay case, supra, as the evidence disclosed that these roads held themselves out as common carriers to some extent though most of the traffic consisted of the logs and timbers be- longing to the owners of the roads. The Supreme Court held that they were common cari'iers by rail- road and that the extent to which a railroad is in fact used by the public does not determine whether it is a common carrier, but the right of the public to demand services of it is the criterion to determine whether the roads were plant facilities or common carriers. Aii order of the Interstate Commerce Com- mission prohibiting these tap lines from sharing in rates on commodities shipped over them on the ground that they were not common carriers, was set aside. § 55. Proof That Injured Servant Is Employed in Interstate Commerce Sufficient to Show That the Railroad Is So Engaged. — To permit an employe to recover under the federal act, it must be shown that at the time of the accident, first, the carrier was en- gaged in interstate commerce and, second, that the injured servant was employed by it in such com- merce- Since the act of a seri^ant within the scope of his employment is in legal contemplation the act of the master, if it is shown that the injured employe at the time of the accident was engaged in interstate commerce by virtue of his employment on the rail- 126 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS road, then it necessarily follows that the carrier is so engaged. Hence in an action under the act, evi- dence that the employe was employed in such com- merce at the time of the accident is sufficient to show that the carrier was so engaged. But the converse of the proposition stated is not true, for proof that the carrier at the time of the injury was engaged generally in interstate com- merce, does not prove that the injured servant was also employed by it in such commerce unless the specie of evidence introduced to show the carrier was so engaged, is the act and work of the servant when injured. Since, therefore, by virtue of a well- known principle in the law of agency the act of servant is the act of master, decisions of the courts construing when an employe is engaged in interstate commerce, are quite applicable under questions dis- cussed in this chapter and opinions there cited are relevant here.''' § 56. Receivers of Railroad Corporations Included Within the Act. — It is provided in § 7 of the federal act that the term "common carrier" in the first section of the act shall include the receiver or receivers or other persons or corporations charged with the management and operation of the business of a common carrier. Courts have both affirmed * and denied ^ the proposition that it is necessary for the plaintiff to show by proof that the receiver has 7. Colasurdo v. Central E. Co. of New Jersey, 180 Fed. 832, affirmed in 113 C. C. A. 379, 192 Fed. 901. 8. Hudkins v. Bush, 69 W. Va. 194, Ann. Cas. 1913 A 533n. 9. McNulta V. Ensch, 134 lU. 46; McNulta v. Lockridge, 137 lU. 270, 31 Am. St. Eep. 362, aflf'g 32 111. App. 86. RAILROADS WITHIN THE ACT 127 been duly appointed, is in charge of and has author- ity to operate the railroad. In view of this conflict the ''safety first" propaganda as applied to legal procedure would seem to suggest to the careful prac- titioner, if representing the plaintiff, that he obtain a certified copy of the receiver's appointment and authority and offer it in evidence. §57. Lessor of Railroad Engaged in Interstate Commerce Liable, When. — If, under the laws of the state, the lessor of a railroad remains responsible for the acts of the lessee as is provided by the statutes of several states, a railroad company which leases its entire line to another railroad company doing an interstate business, creates the lessee its agent and the lessor is a common carrier by railroad engaging in interstate commerce, and the federal act controls as to its liability for injuries to employes of the lessee engaged in interstate commerce. This is true even though the railroad leased is confined within the boundaries of one state. Both such companies, while the lessee is engaged in interstate commerce, are within the terms of the national statute.^" In the Zachary case, cited, the deceased locomo- tive fireman was an employe of the Southern Rail- way Company, the lessee of the defendant in the case. The lessor's activity in the operation of the railroad was confined solely to receiving annual rents from the Southern Railway Company and distrib- 10. North Carolina R. Co. v. Zachary, 232 U. S. 248, 58 L. Ed. 591, 6 N. C. C. A. 194n, Ann. Cas. 1914 C 159n; Copper River & N. W. Ry. Co. V. Heney (C, C. A.), 211 Fed. 459; Nordgard v. Marysville & N. Ry. Co., 211 Fed. 721, 6 N. C. C. A. 207n; Campbell v. Canadian N. Ry. Co., — Minn. — , 4 N. C. C. A. 216n, 217n, 144 N. W. 772. 128 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS uting them among its stockholders. The state law of North Carolina provided that the lessor of a rail- road, notwithstanding the lease, was liable for all of the lessee's acts of commission and omission in oper- ating the road, although the lessor was not actually engaged in either. Construing such leases under the Federal Employers' Liability Act, the court said: ''It is plain enough, however, that the effect of the rule thus laid down, especially in view of the grounds upon which it is based, is, that although a railroad lease as between the parties may have the force and effect of an ordinary lease, yet with respect to the railroad operations conducted under it, and everj^- thing that relates to the performance of the public duties assumed by the lessor under its charter, such a lease — certainly so far as concerns the rights of third parties, including employes as well as patrons — constitutes the lessee the lessor's substitute or agent, so that for whatever the lessee does or fails to do, whether in interstate or intrastate commerce, the lessor is responsible. This being the legal situa- tion under the local law, it seems to us that it must and does result, in the case before us, that the lessor is a 'common carrier by railroad engaging in com- merce between the states, ' and that the deceased was ' employed by such carrier in such commerce, ' within the meaning of the federal act; provided, of course, he was employed by the lessee in such commerce at the time he was killed." But the Supreme Court of Illinois held, in a case decided ten months after the opinion in the Zachary case was delivered, that under the federal act the RAILROADS WITHIN THE ACT 129 owner of a railroad track was not liable to an em- ploye of a licensee of the same track, both being engaged in interstate commerce, for the reason that the relation of master and servant did not exist be- tween the employe of the licensee and the owner of the track. ^^ In the Wagner case. A, a railroad company and the defendant in the case, owned a Y-track which was a part of its tracks on a certain street in Chicago. This Y-track ran northeast and connected at one end with the tracks belonging to B and at the other end with tracks belonging to C. Alongside of the Y-track and on A's property was a semaphore post 16 feet high which however was erected by and belonged to 0. The plaintiff, a con- ductor in charge of a switching crew, was an em- ploye of D. At the time of his injury he was assist- ing in the movement of interstate cars and was hang- ing on the side of a car on the Y-track when owing to its close proximity, he was struck by the sema- phore post and was severely injured. D company used the Y-track and had been using it for several years to transfer its cars and to make deliveries to other companies. The track was used by D with the consent of A and nearly every month D had re- ceived a bill from A for the use of this track and regularly paid the same. The semaphore post had been in the same place for several years. While on A's property and close to the Y-track on which plaintiff was injured, the post was not maintained 11. Wagner v. Chicago & A. B. Co., — 111. — , 106 N. E. 809, de- cided December 2, 1914. All of the judges in this case concurred in the raling but two judges dissented on another point. Roberts Liabilities — 9 130 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS or controlled by A or D but by C whose tracks con- nected with the Y-track at one end. Although the semaphore was not erected or maintained by it, the court held that A was liable if it permitted it to negligently remain there; that A and D were joint tort-feasors and that A was negligent in permitting the operation of trains by its licensee D over the track. On the question of A's liability, being the sole defendant, under the Federal Employers' Lia- bility Act to the plaintiff, the employe of D, the court said: "Defendant in error had no cause of action against plaintiff in error under the Federal Employers' Liability Act, as that act applies only where the relation of master and servant exists. ' ' § 58. Interurban Electric Railroads Included Within the Act. — Interurban electric railroad com- panies carrying passengers, express or freight from one state to another are included within the terms of the Federal Employers' Liability Act. An inter- urban electric railway company which operated a line from a point in Kansas to a point in Missouri was engaged in interstate commerce although after reaching Kansas City, Kansas, and then into Kansas City, Missouri, a street car company furnished the electric power and the conductor, and the interur- ban company, the motorman, and the cars were nin over the tracks of the street railway company. ^^ § 59. Railroads Carrying Passengers and No Freight. — Although a common carrier by railroad carries only passengers from one state to another 12. McAdow V. Kansas City W. Ey, Co., — Mo. App. — , 6 N. C, C. A. 76n, 206n, 233n, 164 S. W. 188. RAILROADS WITHIN THE ACT 131 and handles no freight, it is nevertheless engaged in interstate commerce within the terms of the federal act.i3 § 60. Ships or Vessels Not a Part of a Railroad System.— While the first section of the Act of 1908 includes a railroad company's boats used in inter- state commerce and makes it liable for defects or insufficiencies in such boats, due to negligence, caus- ing injuries to its employes while employed in such commerce, yet the federal statute does not apply to a vessel not a part of a railroad system. ^^ On the other hand a ferryboat used by a railroad company in the transportation of freight and passengers from Jersey City across the river to New York state, is used in interstate commerce within the meaning of the federal statute. ^^ In the last case cited the court also held that the Federal Employers' Liability Act did not by implication repeal the federal statutory provision permitting shipowners to limit the liabil- ity as applied to actions for injuries to employes on a vessel operated by a railroad company as a part of its interstate line.^^ It was also held by the court in that case that a company could maintain proceed- ings for such limitation in a court of admiralty. § 61. Street Railroads Not Within the Terms of the National Act. — Street railways which transport passengers or freight across state lines or from one state to another, are not included within the terms 13. Washington Ey. Co. v. Downey, 40 App. Cas. (D. C.) 147. 14. The Pawnee, 205 Fed. 33. 15. The Passaic, 190 Fed. 644, affinned in 122 C. C. A. 466, 204 Fed. 266. 16. Section 4283 K. S. (4 Fed. Stat. Ann., p. 839). 132 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS of the act for the statute mentions only common car- riers "by railroad" and the United States Supreme Court has defined the term ' ' railroad ' ' by interpreta- tion as not including street railroads." The same conclusion was reached by the Kansas City Court of Appeals in a case brought under the Federal Em- ployers' Liability Act.^^ In the case cited before the United States Supreme Court, counsel for appel- lant cited decisions from twelve states, holding that in a statute the word ''railroad" did not mean ''street railroads" and the counsel for defendant cited decisions to the contrary from an equal num- ber of states. A similar disagreement was shown in the briefs in federal tribunals. Speaking of this conflict among the decisions of the various courts, Justice Lamar, speaking for the court said : ' ' This conflict is not so great as at first blush would appear. For all recognize that while there is similarity be- tween railroads and street railroads, there is also a difference. Some courts, emphasizing the similarity, hold that in statutes the word railroad includes street railroad, unless the contrary is required by the context. Others, emphasizing the dissimilarity, hold that railroad does not include street railroad unless required by the context, since, as tersely put by the Court of Appeals of Kentucky, ' a street rail- road, in a technical and popular sense, is as different 17. Omaha & C. B. S. Ey. Co. and Omaha & C. B. Ey. & B. Co. v. Interstate Commerce Commission and United States, 230 XJ. S, 324, 57 L. Ed. 1501, 46 L. E. A. (N. S.) 385n, reversing the same case re- ported in 191 Fed. 40, 179 Fed. 243, 17 Interst. Com. Com'n E., 239. 18. J^IcAdow V. Kansas City W. Ey. Co., — Mo. App. — , 6 N. C. C. A. 76n, 206n, 233n, 164 S. W. 188. RAILROADS WITHIN THE ACT 133 from an ordinary railroad as a street is from a road. ' Louisville & P. R. Co. v. Louisville City R. Co., 2 Duv. (Ky.) 175. But all tlie decisions hold that the meaning of the word is to be determined by con- struing the statute as a whole. If the scope of the act is such as to show that both classes of companies were within the legislative contemplation, then the word 'railroad' will include street railroad. On the other hand, if the act was aimed at railroads proper, then street railroads are excluded from the pro- visions of the statute. Applying this universally accepted rule of construing this word, it is to be noted that ordinary railroads are constructed on the, companies' own property. The tracks extend from town to town, and are usually connected with other railroads, which themselves are further con- nected with others, so that freight may be shipped, without breaking bulk, across the continent. Such railroads are channels of interstate commerce." § 62. Hauling Empty Cars or Company Property Over State Line. — A common carrier by railroad while transporting empty cars or cars containing only property owned by the railroad company from one state to another is engaged in interstate com- merce within the meaning of the national statute. ^^ § 63. Instances Showing Engagement by Railroad Companies in Interstate Commerce. — A common 19. North Carolina E. Co. v. Zaehary, 232 U. S. 248, 58 L. Ed. 591, 6 N. C. C. A. 194n, Ann. Cas. 1914 C 159n; United States v. Chicago, M. & St. P. Ry. Co., 149 Fed. 486; Barker v. Kansas City, M. & O. Ey. Co., 88 Kan. 767, 43 L. E. A. (N. S.) 1121; Kansas City E. Co. V. Cook, 100 Ark. 467; Thompson v. Wabash E. Co., — Mo. — , 171 S. W. 364. 134 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS carrier by railroad was held to be engaged in inter- state commerce, through its ser\^ant, a car repairer, while he was repairing a car used indiscriminately in both interstate and intrastate commerce in a re- pair shop of the railroad company.^*^ In making a shipment from a point in one state to a point in an- other state over a line which passed through another state the company was engaged in interstate com- merce although the point of origin and jDoint of destination was in the same state.^^ A car marked ''in bad order" and containing an interstate ship- ment was placed upon a repair track in a terminal yard of a railroad company at the destination point for the purpose of having repairs made. While on such a track, it was held, that the i^ilroad company was engaged in interstate commerce through one of its servants who was injured while attempting to couple the defective car to another car under the direction of his foreman. -^ § 64. Beginning and Ending of Interstate Charac- ter of Shipments. — From the moment that a ship- ment for a point in another state is delivered to and accepted by a railroad company, that carrier is en- gaged in interstate commerce during the entire period from the time of acceptance at point of origin until the shipment is finally delivered to and ac- cepted by the consignee at point of destination.^^ 20. Northern P. E. Co. v. Maerkl, 117 C. C. A. 237, 198 Fed. 1. 21. LouisvUle & N. Ry. Co. v. Allen, 152 Ky. 145 ; s. c, 152 Ky. 837. 22. Delk V. St. Louis & S. F. E. Co., 220 U. S. 580, 55 L. Ed. 590, 4 N. C. C. A. 488n. 23. McNeil v. Southern Ry. Co., 202 U. S. 543, 50 L. Ed. 1142; Chicago, R. I. & P. R. Co., v. Hardwick Farmers Elevator Co., 226 RAILROADS WITHIN THE ACT 135 §65. Intermediate Carrier with Line Wholly in One State Participating in Movement of Interstate Shipments. — If any common carrier by railroad par- ticipates to any extent in moving traffic originating from a point in one state or territory or the District of Columbia and destined to a point in another state or territory, the carrier so participating, is engaged in interstate commerce, although its line is confined between two points in the same state and although it only receives a division under a joint rate of trans- portation for its services. In other words, any rail- road that carries over its line freight billed from a point in one state to a point in another as a part of the journey, such intermediate carrier is engaged in interstate commerce as well as the initial and final carrier of a through shipment. ^^ § 66. Shipments Between Two Points in Same State Passing Through Another State in Transit. — Although a shipment is made from a point in one state to another point in the same state, yet if in being transported between the two points the traffic is carried through a contiguous state, the carrier is engaged in interstate commerce and such shipments are considered interstate shipments. Conflicting U. S. 426, 57 L. Ed. 284, 46 L. E. A. (N. S.) 203; Johnson v. Southern P. Co., 196 U. S. 1, 49 L. Ed. 363, 3 N. C. C. A. 784, 802n, 829n; United States v. Geddes, 65 C. C. A. 320, 131 Fed. 452; United States V. Union Stock Yards & T. Co., 226 U. S, 300, 57 L. Ed. 232, affirming on this point decision of Court of Appeals reported in 192 Fed. 330. 24. Interstate Commerce Commission v. Cincinnati, N. O. & T. P. Ey. Co., 162 U. S. 184, 40 L. Ed. 935; United States v. Standard Oil Co., 155 Fed. 306; Parsons v. Chicago N. W. Ey. Co., 167 U. S. 447, 42 L. Ed. 232. 136 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS opinions by state and federal courts on this question had been rendered but the final and supreme author- ity on such matters, the United States Supreme Court, decided that traffic so moved was interstate commerce.^^ § 67. Railroad Lines Confined Within Limits of a Singie State Engaged in Interstate Commerce When Transporting Through Shipments to or from An- other State. — Although a railroad line of a company is confined wholly within the limits of a single state, yet if such a carrier accepts freight for shipment to or from another state, such carrier is engaged in interstate commerce. This is true although the ship- ment is made without any common control, manage- ment or arrangements with another carrier for con- tinuous carriage and although the line of such carrier does not pass from one state to another. Whether such carriers, operating entirely within a single state and transporting articles of commerce shipped in continuous passage from places without the state to stations on its road, or from stations on its road to points without the state, free from any common con- trol, management or arrangements with another car- rier for a continuous carriage or shipment, are en- gaged in interstate commerce, has been both denied and affirmed by Federal Circuit Court of Appeals.^^ This controversy arose largely from a disagree- ment between the courts in interpreting the defini- 25. Hanley v. Kansas City S. E. Co., 187 U. S. 617, 47 L. Ed. 333 ; Louisville & N. Ey. Co. v. Allen, 152 Ky. 145, overruling the same case reported in 152 Ky. 837; Deardorfle v. Chicago, B. & Q. E. Co., — Mo. — , 172 S. W. 333. 26. So held in United States v. Colorado N. W. E. Co., 85 C. C. A. RAILROADS WITHIN THE ACT 137 tion of a railroad given in the Interstate Commerce Act before the Hepburn Amendment of 1906.-'^ In the Geddes case, cited in the notes, it was held that the phrase "common control, management or ar- rangements" applied to carriers wholly by railroad as well as those partly by railroad and partly by water. In the other cases cited in the notes, it was held that the phrase quoted only applied to carriers partly by railroad and partly by water. Which of these courts was correct need not now concern a lawyer bringing a suit under the Federal Employers' Liability Act for the reason that the act was amended in 1906 so that the clause "under a common control, management or arrangements" now quali- fies only carriers partly by a railroad and partly by water and has no application to carriers wholly by railroad.^^ The decision of the Federal Circuit Court of Appeals for the Eighth Circuit (United States V. Colorado & N. W. R. Co., 85 C. C. A. 27, 157 Fed. 321, 15 L. R. A. (N. S.) 167n, 13 Ann. Cas. 893), 27, 157 Fed. 321, 15 L. R. A. (N. S.) 167n, 13 Ann. Cas. 893; United States V. Colorado & N. W. R. Co., 157 Fed. 342; United States v. Union Stockyard & Transit Co., 192 Fed. 330. Denied in United States V. Geddes, 65 C. C. A. 320, 131 Fed. 452; United States v. Geddes, 180 Fed. 480. 27. Act Feb. 4, 1887, c. 104, § 1, 24 Stat. 379 (3 Fed. Stat. Ann., p. 809). That definition was as follows: "The provisions of this act shall apply to any common carrier or carriers engaged in the trans- portation of passengers or property wholly by railroad, or partly by railroad and partly by water, when both are used, under a common control, management or arrangement, for a continuous carriage or shipment from one state or territory of the United States, or the Dis- trict of Columbia, to another state or territory of the United States, or the District of Columbia." 28. Act of June 29, 1906 c. 3591, § 1 and § 11, 34 Stat. 584, 595 (Fed. Stat. Ann. 1909 Supp., p. 255). 138 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS therefore may be said to properly declare the law as to tlie carriers mentioned, and the opinion in the Geddes case, if correct under the old statute, is no longer the law in view of the amendment. It is quite evident also from recent decisions of the United States Supreme Court that such carriers whose lines are confined within the limits of a single state and who receive shipments from or to another state al- though without any through billing, are engaged in interstate commerce.^'' § 68. When Reshipment from Point of Delivery Changes Interstate Character of Traffic. — When a shipment from point A in one state to point B in another state, is delivered to and accepted by the consignee at B and the consignee thereafter reships such a commodity from B to C in the same state — the line between the two points being wholly within the two states — the last shipment is an intrastate one and the carrier in hauling it between B and C is not engaged in interstate commerce. For the in- terstate shipment under such conditions was con- cluded and determined by a final delivery at B, the place intended by the shipper and carrier for final delivery. For instance, a car of com was carried upon a bill of lading from Hudson, South Dakota, to Texarkana, Texas, and five days afterwards it was reshipped from Texarkana to Goldthwaite, both points being in the state of Texas. It was sought to hold the railroad company liable for violation of the 29. Baer Bros. Mer. Co. v. Denver & R. G. R. Co., 233 U. S. 479, 58 L. Ed. 1055; United States v. Union Stockyards, 226 U. S. 286, 57 L. Ed. 232, also the same case reported in 192 Fed. 330. RAILROADS WITHIN THE ACT 139 regulations of the state railroad commission applica- ble to intrastate can-iers in the state of Texas. On the other hand the railroad company contended that the shipment was interstate from Hudson to Gold- thwaite. The court held that the shipment from Texarkana to Goldthwaite was an intrastate ship- ment unaffected by the fact that the shipper intended lo reship the corn from Texarkana to Goldthwaite, for the corn had been carried to Texarkana upon a contract for interstate shipment and the reshipment five days later upon a new contract was an inde- IDendent intrastate shipment.^'' A close case on the facts in which the same prin- cii^le was applied, was decided by the Kentucky Court of Appeals. A train consisting of 19 empty coal cars were brought into Russellville, Kentucky, some of the cars having been brought from Tennes- see. The conductor of the train in which the cars were brought to Russellville, had been directed to take the cars to Russellville and no further orders had been given for their destination and no one had orders to carry them further. After reaching Rus- sellville a new order was issued directing that they be taken to another point in the same state. Dece- dent was a flagman on the train leaving Russell- ville and each car in the train including the coal cars were destined to another point within the same state. The court held that the interstate journey of the cars ended at Russellville and that after leaving Russellville the train was moving solely in intra- state commerce and that no action for decedent's 30. Gulf, C. & fe'. F. Ry. Co. v. Texas, 204 U. S. 403, 51 L. Ed. 540. 140 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS death could be maintained under the federal statute. The court properly assumed that hauling even empty coal cars from a point in one state to a point in an- other constituted interstate commerce, but in view of the controlling fact that the cars originating in Tennessee were only destined to Eussellville, and that at the latter point orders were issued for their further destination which was in the same state, that the interstate journey ended at Eussellville.^^ In another case a coal company shipped a car of coal over certain railroads from points in Illinois to Davenport, Iowa, and there reshipped the cars of coal over another railroad to points in Iowa. In a suit to have declared invalid an order of the Iowa commission, it was held that the shipments from Davenport to points in Iowa were intrastate. Jus- tice Hughes, speaking for the United States Supreme Court in that case, said: ''It is undoubtedly true that the question whether commerce is interstate or intrastate must be determined by the essential char- acter of the commerce and not by mere billing or forms of contract. Ohio Railroad Commission v. Worthington, 225 U. S. 101 (56 L. Ed. 1004) ; Texas & N. 0. R. R. Co. V. Sabine Tram Co., 227 U. S. Ill (57 L. Ed. 442); Railroad Commission of Louisiana V. Texas & Pacific Ry. Co., 229 U. S. 336 (57 L. Ed. 1215, 46 L. R. A. [N. S.] 391n). But the fact that commodities received on interstate shipments are re- shipped by the consignee, in the cars in which they 31. Louisville & N. E. Co. v. Strange 's Adm 'x, 155 Ky. 439, 6 N. C. C. A. 75n, 92n, 83ii, 185n. Accord: Pennsylvania E. Co. v. Knox, 218 Fed. (C. C. A.) 748. RAILROADS WITHIN THE ACT 141 are received, to otlier points of destination, does not necessarily establish a continuity of movement or prevent the reshipment to a point within the same state from having an independent and intrastate character. Gulf, C. & S. P. Ry. Co. v. Texas, 204 U. S. 403 (51 L. Ed. 540) ; Ohio Railroad Commission v. Worthington, 225 U. S. 101, 109 (56 L. Ed. 1004); Texas & N. 0. R. R. Co. v. Sabine Tram Co., 227 U. S. Ill, 129, 130 (57 L. Ed. 442). The question is with respect to the nature of the actual movement in the particular case; and we are unable to say upon this record that the state court has improperly charac- terized the traffic in question here. In the light of its decision, the order of the commission must be taken as referring solely to intrastate transportation originating at Davenport. ' ' ^- § 69. When Reshipment from Point of Delivery Does Not Chang:e Interstate Character of Traffic. — A shipper consigned a commodity from St. Louis, Missouri, to Leadville, Colorado. It was transported over one railroad from St. Louis to Pueblo, Colo- rado, the receiving carrier giving a receipt showing that the commodity was to be delivered to the con- signee at Leadville via another railroad. No through bill of lading was issued and no through route had been established. The first company issued a bill of lading for the shipment from St. Louis to Pueblo at a local rate. The car was there delivered to an- other railroad company at a local rate which com- pany named the first railroad company as consignor 32. Chicago, M. & St. P. Ry. Co. v. Iowa, 233 U. S. 334, 58 L. Ed. 988. 142 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS to the consignee. The freight was always collected either at point of origin or at destination and divided according to the local rates of each. It was held by the United States Supreme Court that while there was no through rate or through route, there was in fact a through shipment from St. Louis, Missouri, to Leadville, Colorado, and the interstate character of the shipment could not be destroyed by ignoring the point of origin and destination, separating the rate into its component parts and by charging local rates and issuing local way bills and thus attempt- ing to convert an interstate shipment into an intra- state shipment. The court quoting from a former decision, said: "When goods shipped from a point in one state to a point in another, are received in transit by a state common carrier, under a conven- tional division of the charges, such carrier must be deemed to have subjected its road to an arrangement for a continuous carriage or shipment within the meaning of the act to regulate commerce. ' ' ^^ In another case shippers delivered to carrier at certain stations in the state of Louisiana eighteen carloads of logs and staves to be transported by railway from said stations to Alexandria, Louisiana, and there delivered to another railroad company which transported them to New Orleans, Louisiana, where they were unloaded from the cars, put on board ship and exported to foreign countries. The bills of lading in each instance provided for the de- livery of the freight from the initial point to New 33. Baer Bros. v. Denver & E. G. R. R. Co., 233 U. S. 479, 58 L. Ed. 1055. RAILROADS WITHIN THE ACT 143 Orleans, there to be delivered to the shipper or con- signee's order. The consignee resided at New Or- leans, was a broker engaged in negotiating for for- eign shipments and attending to shipments for con- signors in the United States, But notwithstanding the bills of lading the staves and logs were intended by the shippers to be exported to foreign countries and were treated by both shippers and carriers ac- cordingly, the shippers always holding the cars on the railroad track at New Orleans until they could accumulate cargo to fill their export orders and arrange for transportation. The railroad company allowed shippers twenty days' time for delivery, as in the case of all export shipments, without charging demurrage which the company would have had the right to charge after the expiration of four days if the shipments had been considered and treated as purely intrastate. The sole question before the United States Supreme Court was whether the ship- ments were foreign or intrastate commerce while moving through Louisiana. The court held that they were foreign shipments, and that the cargo took that character when it is actually started in the course of transportation to a foreign country, al- though it was transported within the state under local bills of lading. The staves and logs were in- tended by the shippers to be exported to foreign countries and there was no interruption of their transportation to their destination except what was necessary for transshipment at New Orleans. ^^ 34. Railroad Commission of Louisiana v. Texas & P. E. Co., 229 U. S. 336, 57 L. Ed. 1215. 144 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS § 70. All Carriers by Railroad and All Their Em- ployes Within Territories Included.— As Congress has full and complete power over territories and other possessions of the United States, § 2 of the federal act, which applies to all common carriers by railroad and all their employes in the territories, the District of Columbia, the Panama Canal Zone, or other possessions of the United States, is valid.^'' Although the Act of 1906 was declared invalid as to carriers engaged in interstate and foreign com- merce, even that law as to all carriers and all their employes in territories and other possessions of the United States, was declared valid. However, by § 2, supra, of the Act of 1908 which regulates only carriers by railroad in territories and other possessions of the United States, the Act of 1906 was repealed. But it was specifically provided in § 8 of the Act of 1908 that "nothing in this act shall be held to limit the duty or liability of common car- riers or to impair the rights of their employes under any other act or acts of Congress, or to affect the prosecution of any pending proceeding or right of action under the act of Congress entitled 'An act relating to liability of common carriers in the Dis- trict of Columbia and territories, and to common carriers engaged in commerce between the states and between the states and foreign nations to their em- ployes,' approved June eleventh, nineteen hundred and six." 35. El Paso V. N. E. E. Co. v. Gutierrez, 215 U. S. 87, 54 L, Ed. 106, aff'g 102 Tex. 378; Atchison, T. & S. F. Ky. Co. v. Mills, 49 Tex. Civ. App. 349. CHAPTER V BENEFICIAEIES AND DAMAGES IN DEATH CASES UNDER FEDERAL ACT § 71. Beneficiaries Under the Federal Statute. § 72. Existence of Beneficiaries Named in Statute Jurisdictional. § 73. Parents Not Entitled to Damages When There Is a Widow or Children. § 74. No Remedy Under the Federal Act Unless There Are Dependent Relatives Named in the Statute. § 75. Measure of Damages in Cases of Death Under the Federal Act. § 76. Damages for the Estate of Decedent Not Recoverable. § 77. No Presumption of Damage to Widow and Child. § 78. Loss of Society, Companionship and Wbunded Affections Not Elements of Damages. § 79. Statutory Action Is Not for the Equal Benefit of Each of the Surviving Beneficiaries. § 80. Cases Under Federal Act in Which Courts Decided Question of Sufficiency of Proof Establishing Dependency of Beneficiaries in Second and Third Classes. § 81. Loss of Care, Counsel, Training and Education by Minors Proper Elements of Damages. § 82. Pecuniary Loss Not Dependent Upon Any Legal Liability of the Employe to the Beneficiaries. § 83. Alien Parents Residing Abroad May Recover Under Federal Act. § 84. No Recovery for Pain and Suffering of Deceased Prior to 1910 Amendments. § 85. No Recovery Under § 9 (Amendment 1910) When Death Is Instantaneous. § 86. Decisions of National Courts on Measure of Damages Control. § 87. Errorless Instructions on Measure of Damages Under Federal Act. § 88. Erroneous Instructions on Measure of Damages Under Federal Act. § 89. Beneficiaries May Recover for the Suffering of Deceased as Well as for His Death. § 90. Death Must Be Result of Negligence Before Beneficiaries Can Recover Under § 1, But Not Under § 9. 145 Roberts Ijabilitius — 10 146 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS § 91. Loss of Prospective Gifts — Contributions During Lifetime of Deceased Employe. § 92. The Term ' ' Next of Kin ' ' Construed to Mean Illegitimate Chil- dren — Conflicting Decisions. § 93. Cases Declaring the True Measure of Damages and Approved by the United States Supreme Court. § 94. Distribution of Amount Eecovered Controlled by Federal Statute and Not State Laws. § 95. Damages Due Each Beneficiary Must Be Apportioned in the Verdict. § 71. Beneficiaries Under the Federal Statute. — In cases of death of employes under conditions de- scribed in the act, the personal representative may bring an action, first, for the benefit of the widow, or husband or children of the employe. If there be no husband, widow or children, then the employe's parents become the beneficiaries under the federal act. If there be no husband, widow or children and no parents of the employe surviving him, then the action may be brought for the benefit of the next of kin dependent upon such employe. § 72. Existence of Beneficiaries Named in Statute Jurisdictional. — If an employe of a railroad suffers death while the carrier is engaged in interstate com- merce, and while he is employed in such commerce, no right of action under any law exists against the carrier for negligence in causing such death, where none of the classes mentioned in the federal statute exists or survive the decedent. The right of action given under the federal law is conferred upon them and no one else. Hence the existence of such bene- ficiaries is jurisdictional to a right of action.^ That 1. Illinois C. Ey. Co. v. Doherty 's Adm 'r, 153 Ky. 363, 6 N. C. C. A. 75n, 440n, 444n, 47 L. E. A. (N. S.) 3 In; Thomas v. Chicago & N. W. Ey. Co., 202 Fed. 766, 6 N. C. C. A. 439n, 446n. BENEFICIARIES AND DAMAGES FOE DEATH 147 no action exists for the death of an employe unless the beneficiaries named in the act survive and who suffer pecuniary loss, is affirmed in a recent case decided by the Supreme Court of the United States.^ In that case the court said: "The nature of the rights and responsibilities arising out of this act has been discussed and determined in four opinions announced by this court since the instant cause was decided by the Circuit Court of Appeals. Michigan C. R. Co. V. Vreeland, 227 U. S. 59, 57 L. Ed. 417, 33 Sup. Ct. Rep. 192 (3 N. C. C. A. 807), Ann. Cas. 1914 C 176n; American R. Co. v. Didricksen, 227 U. S. 145, 57 L. Ed. 456, 33 Sup. Ct. Rep. 224 (3 N. C. C. A. 809n, 831n) ; Gulf, C. & S. F. R. Co. v. McGinnis, 228 U. S. 173, 57 L. Ed. 785, 33 Sup. Ct. Rep. 426, 3 N. C. C. A. 806 (4 N. C. C. A. 926n) ; North Carolina R. Co. V. Zachary, 232 U. S. 248, 58 L. Ed. 591, 34 Sup. Ct. Rep. 305 (6 N. C. C. A. 194n), Ann. Cas. 1914 C 159. It is now definitely settled that the act de- clared two distinct and independent liabilities rest- ing upon the common foundation of a wrongful in- jury: (1) liability to the injured employe for which he alone can recover; and (2), in case of death, lia- bility to his personal representative 'for the benefit of the surviving widow or husband and children,' and if none, then of the parents, which extends only the pecuniary loss and damage resulting to them by reason of the death. ' ' §73. Parents Not Entitled to Damages When There Is a Widow or Children. — Under the federal 2. Garrett v. LouisviUe & N. E. Co., — U. &'. — , 35 Sup. Ct. 32, 148 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS act, the intestate 's mother is not entitled to share in the damages when there is a widow.^ This con- clusion necessarily follows from a reading of the statute, because none of the beneficiaries in the sec- ond class, the parents, are entitled to any damages, no matter how dependent they were, if the decedent left surviving him dependent beneficiaries, named in the first class, that is, a widow or children. On the other hand, if there are no beneficiaries specified in the first class, the beneficiaries mentioned in the sec- ond class may then recover, if they prove a pecuniary loss by reason of the death of the deceased. § 74. No Remedy Under the Federal Act Unless There Are Dependent Relatives Named in the Stat- ute. — If at the time of the death of an employe or an injury which subsequently caused death, the car- rier was engaged in interstate commerce and the injured servant was employed by it in such com- merce, there is no remedy against the carrier unless dependent beneficiaries named in the act, survive him. The question of survival of the cause of action, is not one of procedure governed by the state prac- tice but depends upon the substance of the action.^ Although the deceased left surviving him bene- ficiaries named in the statute, yet there is no liability when the federal act is applicable, unless the bene- aff'g same case reported in 117 C. C. A. 109, 197 Fed. 715, 3 N. C. C. A. 769, 4 N. C. C. A. 925n. 3. Goen v. Baltimore & O. S. W. E. Co., 179 ni. App. 566; St. Louis, S. F. & T. Ey. Co. v. Geer, — Tex. Civ. App. — , 149 S. W, 1178. 4. Michigan C. Ey. Co. v. Vreeland, 227 U. S. 59, 57 K Ed. 417, .3 N. C. C, A. 807, Ann. Cas. 1914 C 176n. BENEFICIAEIES AND DAMAGES FOR DEATH 149 ficiaries were dependent upon the deceased. Unless the plaintiff shows that the beneficiaries named in the statute have been deprived of a reasonable ex- pectation of pecuniary benefits by the wrongful death of the injured employe, there can be no recov- ery. The damage is strictly limited to the financial loss thus sustained.^ In the McGinnis case, cited supra, the Supreme Court of the United States in overruling the decision of one of the courts of appeals in Texas, said : ' ' The court of civil appeals upheld this ruling, saying that the federal 'statute expressly authorized a suit to be brought by the personal representatives for the benefit of the surviving wife and children of the de- ceased, irrespective of whether they were dependent upon him, or had the right to expect any pecuniary assistance from him.' 147 S. W. 1189. This con- struction of the character of the statutory liability imposed by the act of Congress was erroneous. In a series of cases lately decided by this coui't, the act in this aspect has been construed as intended only to compensate the surviving relatives of such a de- 5. Gulf, C. & S. F. Ey. Co. v, McGinnis, 228 U. S. 173, 57 L. Ed. 785, 3 N. C. C. A. 806, 4 N. C. C. A. 926n; American E. Co. v. Did- ricksen, 227 U. S. 145, 57 L. Ed. 456, 3 N. C. C. A. 809n, 831n; Michigan C. E. Co. v. Vreeland,.227 U. S. 59, 57 L. Ed. 417, 3 N. C. C. A. 807, Ann. Cas. 1914 C 176n; North Carolina E. Co. v. Zachary, 232 U. &'. 248, 58 L. Ed. 591, 6 N. C. C. A. 194n, Ann. Cas. 1914 C 159n; Thomas v. Chicago & N. W. Ey. Co., 202 Fed. 766, 6 N. C. C. A. 439n, 446n; Illinois C. Ey. Co. v. Doherty's Adm'x, 153 Ky. 363, 6 N. C. C. A. 75n, 440n, 444n, 47 L. E. A. (N. S.) 31n; Chesapeake & O. Ey. Co. V. Dwyer's Adm'x, 157 Ky. 590, 6 N. C. C. A. 449n; St. Louis, S. F. & T. E. Co. v. Seale, 229 U. S. 156, 57 L. Ed. 1129, 3 N. C. C. A. 800, Ann. Cas. 1914 C 156n; Dooley v. Seaboard A. L. Ey. Co., 163 N. C. 454, 6 N. C. C. A. 440n, 442n, 452n. 150 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS ceased employe for the actual pecuniary loss result- ing to the particular person or persons for whose benefit an action is given. The recovery therefore, must be limited to compensating those relatives for whose benefit the administrator sues as are shown to have sustained some pecuniary loss." § 75. Measure of Damages in Oases of Death Un- der the Federal Act. — In a suit under the federal act the damages can only be compensatory, and the measure of them is what the beneficiaries named in the statute and no one else, or either of them, neces- sarily lose in or by the death of the deceased employe, and in measuring these damages, the jury are at liberty to take into consideration the age, health, and expectancy of life of the deceased, his earning capacity, his character, his mode of treatment to his family and the amount contributed out of his wages to them for their support, and calculate from these facts the amount the jury, as reasonable and prac- tical men, believe the plaintiffs lose because of the death. If the deceased was guilty of contributory negligence, the damages should be diminished, but if the violation by defendant of a law of Congress requiring safety appliances, contributes to the death or was the proximate cause thereof, then the dam- ages are not to be diminished because of any con- tributory negligence.^ § 76. Damages for the Estate of Decedent Not Re- coverable. — Under the federal act the estate of de- ceased employe is not entitled to any damages by 6. American E. Co. v. Birch, 224 U. S. 547, 56 L. Ed. 879; McCul- lough V. Chicago, E. I. & P. E. Co., — la. — , 142 N. W. 67, 6 N. C. BENEFICIARIES AND DAMAGES FOR DEATH 151 reason of his death. A trial court instructed the jury in a suit under the federal act that they could award as damages such a sum of money as would reasonably compensate the estate of decedent for the destruction of his power to earn money, caused by his death. This charge was held by the appellate court to be erroneous, for the reason that, the na- tional statute made no provision for damages to the estate of a decedent caused by his death, the dam- ages being confined solely to the pecuniary loss of the beneficiaries caused by the death.'^ In another case for a similar reason an instruction was permit- ted the recovery of damages for the benefit of the widow and children but in case the net earnings of the deceased were in excess of the sum, that such damages could be recovered by the administrator for the estate, was held erroneous under the federal act.* A similar instruction was condemned in another case for the same reason.*^ § 77. No Presumption of Damage to Widow and Child. — The Supreme Court of Iowa held in an action under the federal act, that substantial damages in cases of the death of a husband and father, would be presumed in favor of the widow and children. ^^ C. A. 78n, 444n, 449ii, 451n; Thornton v. Seaboard A. L. Ey. Co., _ g. c. — , 6 N. C, C. A. 85n, 93n, 82 S. E. 433. 7. Chesapeake & O. R. Co. v. Dwyer 's Adm 'x, 157 Ky. 590, 6 N. C. C. A. 449n. 8. Southern Ry. Co. v. Hill, 139 Ga. 549. 9. Dooley v. Seaboard A. L. Ry. Co., 163 N. C. 454, 6 N. C. C. A. 440n, 442n, 452n. 10. McCuUough V. Chicago, R. I. & P. R. Co., — Iowa — , 6 N. C. C. A. 78n, 444n, 449n, 451n, 142 N. W. 67. See also, Garrett v, LouisviUe & N. R. Co., 117 C. C. A. 109, 197 Fed. 715. ] 52 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS The court cites authorities to sustain this proposi- tion but this ruling seems to be in direct conflict with the decisions of the Supreme Court of the United States. It is held by that court, that, even as to ben- eficiaries in the first of the three specified classes under the federal act, proof of pecuniary loss must both be alleged and shown.^^ § 78. Loss of Society, Companionship and Wound- ed Aifections Not Elements of Dajnages.— The pe- cuniary loss or damage which alone can be recovered under the federal act by the beneficiaries, excludes those losses which result from the depriva- tion of the society and companionship of the de- ceased, or those injuries to the affections and senti- ments which arise from the death of relatives and which, though painful and grievous to be borne, can- not be measured or recompensed by money.^^ In the case last cited, it was held that the care and advice which the wife would have received from the husband if he had lived, was not an element of dam- age and threw the door open to the wildest specula- tion. In another case it was held that loss to parents of the companionship of their son was not an element of damages under the federal act.^^ The Supreme Court of North Carolina held that the damages re- coverable by a parent for the negligent death of a 11. Gulf, C. & S. F. E. Co. V. McGinnis, 228 U. S. 173, 57 L, Ed. 785, 3 N. C. C. A. 806, 4 N. C. C. A. 926n. 12. Michigan C. R. Co. v. Vreeland, 227 U. S. 59, 57 L. Ed. 417, 3 N. C. C. A. 807, Ann. Cas. 1914 C 176n. 13. American R. Co. v. Didrieksen, 227 U. S. 145, 57 L. Ed. 456, 3 N. C. C. A. 809n, 881n; McCullough v. Chicago, R. I. & P. Ry. Co., — Iowa — , 6 N. C. C. A. 78n, 444n, 449n, 451n, 142 N. W. 67. BENEFICIARIES AND DAMAGES FOR DEATH 153 son was limited under the federal act to such loss as resulted to the parent because of being deprived of a reasonable expectation of pecuniary benefits by the wrongful death of the employe.^^ § 79. Statutory Action Is Not for the Equal Bene- fit of Each of the Surviving Beneficiaries. — The ac- tion given to an administrator in case of the death of an employe under the federal act, is not given for the equal benefit of the surviving relatives for whose benefit the suit is brought. Though the judgment may be for a gross amount, the interest of each bene- ficiary must be measured by his or her individual pecuniary loss and that apportionment is for the jury to return. This principle will exclude any re- covery in behalf of such as show no pecuniary loss. Where a deceased employe left a widow and four children, a suit was brought by the widow as admin- istratrix for her benefit and all the children who were named in the petition. One of the children was a married woman residing with and being main- tained by her husband. There was neither proof nor allegation that this married daughter was in any way dependent upon the deceased, nor that she had any reasonable expectation of any pecuniary benefit as a result of a continuation of his life. It was held that the court committed error in refusing to instruct the jury that they could not find any damage in favor of the married daughter. ^^ 14, Dooley v. Seaboard A. L. Ey. Co., 163 N. C. 454, 6 N. C. C. A. 440n, 442n, 452ii. 15. Gulf, C. & S. F. E. Co. V, McGinnis, 228 U. S. 173, 57 L. Ed. 785, 3 N. C. C. A. 806, 4 N. C. C. A. 926n; Illinois C. Ey. Co. v. Doherty, 153 Ky. 363, 6 N. C. C. A. 75n, 440n, 444n, 47 L. E. A. 154 INJURIES TO INTERSTATE EMPLOYES ON RMLROADS § 80. Cases Under Federal Act in Which Courts Decided Question of Sufficiency of Proof to Estab- lish Dependency of Beneficiaries in Second and Third Classes. — Under the federal act the measure of dam- ages to parents for the death of an unmarried adult son has been held to be the present worth of such (N. S.) 31n; McCullough v. Chicago, E. I. & P. E. Co., — Iowa — , 6 N. C. C. A. 78n, 444ii, 449n, 451n, 142 N. W. 67. In McGarvey's Guardian v. McGarvey's Admr. et al, — Ky. — , 173 S. W. 765, decided March 2, 1915, an administrator of the estate of a deceased railroad employe had brought an action against a rail- road company under the Federal Act and the cause was settled by the payment of the sum of $5,000 to him. The beneficiaries were the widow and a child by a former marriage and the question was pre- sented to the court how the money should be apportioned between them. The court held that the money should be divided on the basis of the respective periods during which the two beneficiaries would sustain pecuniary loss. The court said: "There yet remains the question of the extent to which he is entitled to participate therein. If we were making this finding as an original proposition (that is, as a jury), the result reached might be different; but here the amount of the recovery is already ascertained and fixed, and the only question involved is the proper division of the fund in an equitable way. The widow was about 30 years of age at the time of her husband's death, and in good health, but without means or income ; and, comparing the condition and position of the two, we have reached the conclusion that the pecuniary loss to both son and widow is approximately the same upon a per annum basis. Considering the pecuniary loss to each to be the same sum per annum, the recovery should be divided on the basis of the respective periods during which the two beneficiaries will sustain pecuniary loss. Upon this question, counsel for appellant argues that the period of pecuniary loss to the son should embrace such time, beyond the date of his attaining the age of 21 years, as would reason- ably be required to educate him for the medical profession, as there is some evidence in the record that his father had expressed a determina- tion to give him such an education; counsel insisting that to do this would require six years, and that therefore such is the period of his pecuniary loss. Counsel for appellee insists that his pecuniary loss should not be extended beyond the date of his attaining the age of 21 years, and that the period of pecuniary loss to the widow should be her expectancy of life, according to the life tables, which is 30 years. We cannot, however, agree wholly with either contention. It may BENEFICIARIES AND DAMAGES FOR DEATH 155 gifts as they reasonably could have expected to re- ceive from him in the course of their lives. ^"^ In the case cited an unmarried adult son, 25 years old, be conceded that the expectations of the son may extend beyond the date of his attaining the age of 21 years, but his dependency would not, and, as that is the date of the termination of the legal liability of the father, it should, under ordinary circumstances, be the end of the period of pecuniary loss to him. The expectancy of life of the widow might be greater than that of the deceased husband, or it might be less, but her dependency for support could not extend longer than his expectancy of life, as the support must then cease. If her life expectancy is less than that of the husband, the period of pecuniary loss would be governed by her expectancy. If her life expectancy is greater than that of her husband, then her period of pecuniary loss should be governed by his expectancy of life. In this case, from the death of John McGarvey until the date upon which Henry McGarvey will have attained the age of 21 years is 4 years and 4 months; and McGarvey 's expectancy of life was 27.34 years; that of his widow being greater. And, dividing the recovery on the basis of the respec- tive periods of pecuniary loss, the widow is entitled to 86.32 per cent thereof, or $4,316.00, and the son is entitled to 13.68 per cent thereof, or $684." 16. McCuUough V. Chicago, K. I. & P. Ry. Co., — Iowa — , 6 N. C. C. A. 78n, 444n, 449n, 451n, 142 N. W. 67; Eichelieu v. Union Pac. Ey. Co., — Neb. — , 149 N. W. 772. Decedent was a laborer for an interstate railroad. He was 23 years of age. He had arrived in this country about two months before his death. Prior thereto he had lived with his parents in Finland. There was some evidence that he had given his parents some money. The court in holding that there was sufficient evidence of dependency to sustain a verdict of $2,000, said: "But taking the evidence as it is found, may we say there is no support for the amount of the verdict? Under our decisions we think there is. The facts indicate that the parents were in need of financial assistance; that the deceased had during his minority and for two years in addition given aid both in money and its equivalent, work; and that he had the disposition to continue the same, since from his first wages in this country he sent his father $10.00. It is also apparent that the deceased was industrious and was earning wages, at least those of the ordinary laborer. We think these are factors from which the jury could find that in the death of their son the parents sustained a substantial pecuniary loss." Lundeen v. Great N. By. Co., — Minn. — , 150 N. W. 1088. 156 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS killed under conditions making the federal act ex- clusively applicable upon the question of recovery, made his home with his father and mother, boarded and roomed there and paid them for his room and board and in that way contributed to the family. The son was the oldest of the children. The father was a common laborer, 57 years old, and the mother 54 years old. The son had been working for the railroad two years. The mother, testifying said that the son contributed to the family expenses but whether by gifts or solely in paying for board and lodging as described, does not clearly appear in the report of the case. This was the entire testimony in the case as to the pecuniary loss. The court held that such evidence did not furnish sufficient data upon which a jury could properly award a verdict of $5,000. On the other hand, in another case, a son, single, 24 years old, strong in physique, well educated, pos- sessing good business traits, living with his wealthy parents on a large farm, went away to become a brakeman, stating he would be back on the farm to gather the com. He was killed while on duty by the negligence of the defendant. While at home and before going to work for the railroad, he raised crops on the farm and lived with his father and mother as one of the family. He did not receive any fixed wages from his father who owned and culti- vated the farm. His father was in the habit of giv- ing him money, however, when he desired. The father was 74 years old and growing feeble. He relied on the deceased as the manager of his farm. BEaSTEFIClARIES AND DAMAGES FOR DEATH 157 It was held these facts presented a prima facie case showing a reasonable expectation of pecuniary bene- fits from the continuance of the son 's life which with proof of the value of such benefit, was susceptible of estimate of the pecuniary loss to the father.^^ That a deceased railroad employe had a sick brother to whom he had not contributed anything in his lifetime did not make the question of dependency under the federal statute a matter for the jury to pass upon for such evidence was not sufficient.^^ In another case the Supreme Court of North Caro- lina held that a mother may recover damages for the death of a son killed while employed in interstate commerce for a common carrier railroad if she has reasonable expectation of pecuniary benefit from the continuance of the life of the son although he had not contributed anything to her support in his lifetime. ^^ A laboring man killed while repairing an interstate track for a railroad company, during his lifetime sent five or six dollars a week to a wid- owed sister in Italy who had two children. By his death the sister was deprived of this money which she had been accustomed to receive. It was held by a majority of the court. Judges Lyon and Smith dissenting, that such facts were sufficient to submit the question of dependency under the federal act to 17. Garrett v. Louisville & N. R. Co., 117 C. C. A. 109, 197 Fed. 715, 3 N. C. C. A. 769, 4 N. C. C. A. 925n. 18. Jones v. Charleston & W. C. Ey. Co., — S. C. — , 6 N. C. C. A. 439n, 443n, 82 S. E. 415. 19. Irvin v. Southern Ry. Co., — N. C. — , 80 S. E. 78. 158 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS the jury.2*^ In an action by an administrator of a railroad employe for the benefit of brothers and sis- ters of the deceased the evidence disclosed that the deceased left surviving him several brothers and two sisters, one a sister of charity residing in a convent who received no support from the decedent in his lifetime, and the other a married woman living in Ireland. There was some testimony that the dece- dent had borrowed money to send to his sister in Ireland, but whether the money was sent her in pay- ment of a debt or for her support was not disclosed. No evidence was introduced to show that the hus- band in Ireland was unable to support his wife. There was no evidence that any of the brothers were dependent upon the deceased. The court held that there could be no recovery under the federal act.^^ A sister whom a deceased brakeman in his lifetime supported by gifts of money and by payment of board, was held to be a dependent beneficiary under the federal act.^^ § 81. Loss of Care, Counsel, Training and Educa- tion by Minors Proper Elements of Damages. — The term "dependency" as used in the federal act has been held by the Supreme Court of the United States to be jurisdictional to the right of recovery as to all three of the classes of beneficiaries mentioned in the statute. The term means a pecuniary or material loss, as distinguished from those moral elements of 20. Bitondo v. New York, C. & H. R. Co., 163 App. Div. (N. Y.) 823, 6 N. C. C. A. 230n. 21. Illinois C. R. Co. v. Doherty's Adm'x, 153 Ky. 363, 6 N. C. C. A. 75n, 440n, 444n, 47 L. R. A. (N. S.) 131n. 22. Richelieu v. Union P. Ry. Co., — Neb. — , 149 N. W. 772. BENEFICIARIES AND DAMAGES FOR DEATH 159 loss due to the death of a relative. Hence it was declared erroneous for a court to instruct a jury that the care and advice which a wife would have re- ceived from the husband were financial losses be- cause such elements are not strictly financial losses.^^ However, the term ''dependency" in cases of a loss of father or mother, when the beneficiary is a minor child, includes that care, counsel, training and edu- cation which, under the evidence, the child would probably have received from the parent and which can only be supplied by the service of another by compensation. 2"* In one case the court, on the measure of damages under the federal act, told the jury that they might take into consideration "the care, attention, instruction and training which one of his (decedent's) disposition and character as disclosed by the evidence might reasonably be ex- pected to give his children during their minority." The court further advised the jury that "neither sympathy, bereavement, affection, love nor devo- tion, ' ' could be considered as an element of damage. It was held that the charges as thus explained was proper.^^ The damages to an infant child under the national statute, it was held in another case, includes the reasonable pecuniary value of the nurture, care and admonition the child would have received from the father during minority.^*^ 23. Michigan C, K. Co. v. Vreeland, 227 U. 8. 59, 57 L. Ed. 417, 3 N. C. C. A. 807, Ann. Cas. 1914 C 176n. 24. Michigan C. R. Co. v. Vreeland, 227 U. S. 59, 57 L. Ed. 417, 3 N. C. C. A. 807, Ann. Cas. 1914 C 176n. 25. St. Louis & S. F. R. Co. v. DiLke, 112 C. C. A. 564, 192 Fed. 306. 26. St. Louis, S. F. & T. Ry. Co. v. Gear, — Tex. Civ. App. — , 149 S. W. 1178. 160 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS §82. Pecuniary Loss Not Dependent Upon Any Legal Liability of the Employe to the Beneficiaries. — The act of Congress is for the benefit of certain specified relatives in that act mentioned and the damages are such as flow from the deprivation of the pecuniary benefits which the beneficiaries might have reasonably received if the deceased had not died from his injuries. The pecuniary loss is not de- pendent upon any legal liability of the injured person to the beneficiary. That is not the sole test. There must, however, appear some reasonable expectation of pecuniary assistance or support of which they have been deprived.^^ In a case against a common carrier by railroad under the federal act, there was evidence that the deceased had abandoned his wife and child and had not lived with them or contributed to their support for many years. The trial court instructed the jury that it was the legal duty of the deceased in his lifetime to care for and support his wife and child even though he lived separate and apart from them and that the wife and child had the right to recover damages for his wrongful death independent of whether he had contributed anything to their support. The court held this instruction was wrong in that it fixed "legal duty" independent of pecuniary losses as a measure by which the jury should estimate the damages, instead of the pecuniary benefits which the wife and child might reasonably have received during his lifetime.^^ 27. Michigan C. R. Co. v. Vreeland, 227 U. S. 59, 57 L. Ed. 417, 3 N. C. C. A. 807, Ann. Cas. 1914 C 176n, 28. Fogerty v. Northern P. Ry. Co., — Wash. — , 133 Pac. 609. BENEFICIARIES AND DAMAGES FOR DEATH 161 § 83. Alien Parents Residing Abroad May Recover Under Federal Act. — Whether alien parents of a per- son killed by the negligence of another can recover has been the subject of conflicting decisions by the courts of this country, some holding that alien parents are included as beneficiaries under suits giv- ing actions for death and others holding that they are excluded.-'' A federal district court held that the Federal Employers' Liability Act did not authorize a recovery for the sole benefit of alien parents of an employe, who resided abroad.^'' But when this case reached the Supreme Court of the United States on writ of error, that court held that such parents could recover for the death of an employe in an action under the federal act.^^ In so holding, Mr. Justice Holmes, after referring to cases from other jurisdic- tions,^^ said : ' ' We may refer to these cases for their reasoning without reproducing it, and need not do much more than add that the policy of the Em- 29. Some of the decisions affirming that alien beneficiaries can re- cover, are the following: Mulhall v. Fallon, 176 Mass. 266; Kelly- viUe Coal Co. v. Petraytis, 195 111. 215, 88 Am. St. Eep. 193; Szymanski v. Blumenthal, 3 Pennew. (Del.) 558; Eenlund v. Commo- dore Min. Co., 89 Minn. 41, 99 Am. St. Eep. 534. Others denying the right of recovery are: Deni v. Pennsylvania E. Co., 181 Pa. 525, 59 Am. &t. Eep. 676; Maiorano v. Baltimore & O. E. Co., 216 Pa. 402, 21 L. E. A. (N. S.) 271; McMillan v. Spider Lake SawmiU & Lumber Co., 115 Wis. 332, 60 L. E. A. 589, 95 Am. St. Eep. 947. 30. McGovern v. PhUadelphia & E. E. Co., 209 Fed. 975, 6 N. C. C. A. 441n. 31. McGovern v. Philadelphia & E. E. Co., 235 U. S. 389, — L. Ed. — ; accord, Bombolis v. Minneapolis & St. L. E. Co., — Minn. — , 150 N. W. 385. 32. The cases referred to were the following: Mulhall v. FaUon, 176 Mass. 266, 54 L. E. A. 934, 79 Am. St. Eep. 309; Kellyville Coal Co. V. Petraytis, 195 111. 217, 88 Am. St. Eep. 191; Atchison, T. & S. F. E. Co. V. Fajardo,-74 Kan. 314, 6 L. E. A. (N. S.) 681n. Roberts Liabilities — 11 162 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS ployers ' Liability Act accords with and finds expres- sion in tlie universality of its language. Its purpose is sometliing more than to give compensation for the negligence of railroad companies. Even if that were its only object, we might accept the distinction ex- pressed in Mulhall v. Fallon, supra, between the duties imposed by a statute upon persons in another state and benefits conferred upon them. Extra territorial application would naturally not be given to the first, 'but rights can be offered to such per- sons, and if, as is usually the case, the power that governs them makes no objection, there is nothing to hinder their accepting what is offered.' The rights and remedies of the statute are the means of executing its policy. If this 'puts burdens on our own citizens for the benefit of nonresident aliens,' as said by the district court, quoting the Deni case, supra, it is a burden imposed for wrongdoing that has caused the destruction of life. It is to the pre- vention of this that the statute is directed. It is for the protection of that life that compensation for its destruction is given and to those who have relation to it. These may be wife, children, or parents. The statute, indeed, distinguishes between them, but what difference can it make where they may reside? It is the fact of their relation to the life destroyed that is the circumstance to be considered, whether we consider the injury received by them or the influence of that relation upon the life destroyed." § 84. No Recovery for Pain ajid Suffering of De- ceased Prior to 1910 Amendments. — Under the fed- eral act, prior to the 1910 amendments, the benefi- BENEFICIARIES AND DAMAGES FOB DEATH 163 claries of a deceased employe could not recover for the injury and pain suffered by the deceased. The Arkansas Supreme Court sustained a verdict for separate sums on two counts, the first for pecuniary loss to the next of kin and the second for the injury and pain suffered by intestate. At the trial the defendant asked for a ruling that the plaintiff could not recover damages for pain under the second count. The state court held that the act of Congress was supplementary to the state law and that such a verdict could be upheld under the state law. On writ of error from the United States Supreme Court to the State Supreme Court, the national court held that the federal act was exclusive and superseded the state law as to all employes employed in inter- state commerce and interstate carriers also engaged in such commerce, and since the only action given by the federal act was one for the benefit of the next of kin, the ruling of the state court was wrong. No attempt was made in that case to construe the effect of the 1910 amendment as the accident occuiTed in 1909.33 § 85. No Recovery Under § 9 (Amendment 1910) When Death is Instantaneous. — Where the in- jury and death of an interstate employe are so simultaneous that it cannot be said that the employe endured pain and suff'ering, there can be no recovery under § 9 (Amendment 1910) of the federal act providing, that a right of action given to a person 33. St. Louis I. M. & S. Ey. Co. v. Hesterly, 228 U. S. 702, 57 L. Ed. 1031, reversing the same case in 98 Ark. 240; Garrett v. Louis- vUle & N. E. Co., 117 C. C. A. 109, 197 Fed. 715, 3 N. C. C. A. 769, 4 N. C. C. A. 925u, aff'd — U. S. — , 35 Sup. Ct. 32. 164 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS suffering injury shall survive to his personal rep- resentatives for the benefit of the beneficiaries named in § 1.^^ On the other hand, if the employe lives an appreciable length of time after receiving an injury, even though in a state of unconsciousness, his cause of action survives under § 9.^^ In the Shewalter case cited the Supreme Court of Ten- nessee, construing the federal act, after comparing it with the death statutes of several states, held that, if the death of an employe was instantaneous, the beneficiaries, through the personal rexjresentative, could recovery any and all damages caused them by the death, but in order to permit a recovery for addi- tional damages, under the survival amendment, the decedent must have survived the action. In that case a father was seeking damages for the death of his son. The court instructed the jury they could allow a reasonable sum for the pain and suffering of the decedent. Since the evidence disclosed that the death was instantaneous, the court held that the instruction was erroneous for the reasons given. In the other case cited, supra, the Supreme Court of Minnesota reached the same conclusion but held that testimony showing that the decedent after the injury, moaned and breathed for ten minutes, justified the trial court in submitting the question of survival of his cause of action to the jury.^'^ 34. Carolina, C. & O. Ey. Co. v. Shewalter, 128 Tenn. 363, 6 N. C. C. A. 445n. Accord: Dictum in Norfolk & W. E. Co. v. Holbrook, 235 U. S. 625. 35. Capital Trust Co. v. Great Northern Ey. Co., — Minn. — , 149 N. W. 14. 36. See also Dillon v. Great N. Ey. Co., 38 Mont. 485. BENEFICIARIES AND DAMAGES FOR DEATH 1G5 § 86. Decisions of National Courts on Measure of Damages Control. — In actions under tlie Federal Employers' Liability Act, the measure of damages sanctioned and approved by the United States Supreme Court controls the action of all other courts under the act.^"^ §87. Errorless Instructions on Measure of Dam- ages Under Federal Act. — In an action for damages by an administrator for the benefit of a mother of a deceased employe of a railroad company, the Supreme Court of North Carolina in a case cited in the notes,^^ approved the following instructions as being accurate, correct and clear under the federal act: "The measure of damages in this case is not the measure of damages obtaining under the state prac- tice, to-wit, the pecuniary value of the life of the intestate, during its prospective continuance, but is the measure of damages as fixed by the Federal Employers' Liability Act and is brought for the benefit of some certain person, to-wit, in this case the mother by reason of the death of her son. It is purely and entirely a money or financial loss. How much money has the mother been deprived of by the death of her son, computing the same at its present worth or value? It is not a question of how much the son could have made for his own use had he lived out his 37. Nashville, C. & St. L. Ry. v. Henry, 158 Ky. 88, 4 N. C. C. A. 495n, 6 N. C. C. A. 99n, 106n; Dooley v. Seaboard A. L. Ey. Co., 163 N. C. 454, 6 N. C. C. A. 440n, 442n, 452n ; Hardwick v. Wabash R, Co., 181 Mo. App. 156. A state law limiting the liability of a raUroad company in cases of death to $10,000 does not apply in an action under the Federal Employers' Liability Act. Devine v. Chi- cago, R. I. & P. R. Co., — 111. — , 107 N. E. 595. 38. Irvin v. Southern Ry. Co., — N. C. — , 80 S. E. 78. 166 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS allotted time, but the present value of the sum his mother might reasonably have expected to receive from his earnings during her life, for the limit of time within which she could expect to receive finan- cial aid from her son is the time which she could reasonably be expected to live. You must not under- take to give the equivalent or the value of human life. You will allow nothing for the suffering or sorrow of either the deceased or his mother. You must not attempt to punish the railway company but endeavor to give a fair and reasonable pecuniary value for the continuation of the life of the deceased to his mother. Therefore you will consider what sum of money, paid at the present time, in a lump sum, would represent the fair value of what the mother had a reasonable right to expect, under all circumstances, to receive from the earnings of her son, had he lived until her death. As a basis on which to enable you to make your estimate, it is proper for you to consider the wages the son was receiving, the age and health of the son, the fact that the son might have married and thereby made it necessary to use all or a part of his earnings in the support of his own family; you will consider the habits, prospect in life, industry, and skill of the son, the business in which he was engaged, and its hazards as to life; you will consider how much of his earnings he spent on himself or otherwise, either for necessities or for other purposes, as distinguished from what he spent on or gave to his mother, if you find from the evidence that he contributed an5i:hing from his earnings to his mother, because the part of BENEFICIARIES AND DAMAGES FOR DEATH 167 his wages that he spent on himself or for other pur- poses than that contributed to his mother, or what in the future she might reasonably expect he could contribute, would be entirely eliminated from your calculations. There is another limitation upon the amount that you will allow as damages, that is this: You will allow only the present value of what you may find the mother has lost in money because of the death of her son, for she is getting now in a lump sum that which she would have received from time to time during a future period. By this you are not to understand that you are to ascertain the number of years that the contributions to the mother from her son would probably continue, and then multiply such number of years by the amount of such probable yearly contribution, but you are to give a sum of money that will represent the present value of such contributions. The evidence you have heard as to the probable duration of the life of the mother, based upon the mortality tables of the insurance companies, is not conclusive, upon the question of the duration of her life. Such tables are submitted to you, not to control you, but merely to guide you. They are based upon averages, and there is no cer- tainty that any person will live the average duration of life. Now, if you answer the first issue 'yes,' to- wit, that the Southern Railway is chargeable with negligence, you should first consider the question of damages, without relation to the question of contributory negligence. If you find that the plain- tiff's intestate was guilty of contributory negligence, it would then be your duty to reduce the amount of 168 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS damages in proportion thereto, since the act provides that damages shall be diminished in proportion to the amount of negligence attributable to the injured employe. I instruct you that this provision means this: If you find that the negligence of the two is equal (that is, that the railway company was guilty of negligence and the plaintiff's intestate was guilty of equal negligence that contributed to the injury), you will reduce the damages one-half. If you find that the plaintiff's intestate was guilty of more negligence than the railway company, then the dam- ages should be reduced more than one-half. If he was guilty of less negligence than the railway com- pany, then the damages should not be reduced as much as one-half." The Supreme Court of Oregon in another action under the federal act ^^ specifically approved the following instructions as being a fair, clear and accurate declaration of the law in guiding the jury as to the effect of contributory negligence in mitigat- ing the damages: "In this connection you have no doubt observed from the testimony, as well as from the pleadings, that the plaintiff's participation in the transaction complained of has been alleged to be negligent in character. Now the plaintiff's negli- gence, if you find he was negligent, is defined in the same manner as that of the defendant. If you believe from the evidence that he did an act or number of acts which a prudent engineer would not have done, or if he failed to do an act or number of acts which an 39. Pfeiflfer v. Oregon, W. E. & Co., — Ore. — , 7 N. C. C. A. 685, 144 Pac. 762. BENEFICIARIES AND DAMAGES FOR DEATH ].69 ordinarily prudent engineer would have done under all the existing circumstances, having in view the probable danger of his receiving the injury, then I charge you that he is, with respect thereto, guilty of negligence; and if his acts, if any you find, were the proximate cause of the injury, and if you further find that the acts, if any, of the defendant and its employes were not the proximate cause of the injury, then it will be your duty to find a verdict for the defendant. And in this connection if you believe from the evidence that the plaintiff's injury was caused partly by one or more of the negligent acts of the defendant, mentioned in the complaint, and one or more of the negligent acts of the plaintiff, as mentioned in the answer, then it will be your duty to compare the same in accordance with instructions which I shall give you. In order to make clear to you what is meant by the comparison of negligence, declared by the federal law to be the duty of the jury to make, let me say that your first inquiry should be : Was the defendant guilty of negligence ? Your second inquiry should be: Was the plaintiff negligent? Your third inquiry should be: In what degree did these causal negligences contribute to the accident? And I say to you, as a matter of law, that you must determine what proportion. If the plain- tiff's negligence contributed or caused, we will say, the accident to the extent of one-third of the entire negligence, then the plaintiff's damages would be reduced by one-third; if to the extent of one-half, then his damages would be reduced by one-haLf; if to the extent of two-thirds, then his damages would 170 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS be reduced by two-thirds and if bis negligence was alone the cause of the accident, then of course that would wipe out the damages and your verdict would be in favor of the defendant. ' ' ^^ § 88. Erroneous Instructions on Measure of Dajn- ages Under Federal Act. — A trial court in an action for damages under the federal act charged the jury that "where the persons suffering injury are the dependent widow and infant children of a deceased husband and father, the pecuniary injury suffered would be much greater than where the beneficiaries were all adults or dependents who were mere next of kin." Condemning this instruction as being im- proper and constituting reversible error, the United States Supreme Court, by Mr. Justice McReynolds, said: "It was proper, therefore, to charge that the jury might take into consideration the care, atten- tion, instruction, training, advice and guidance which the evidence showed he reasonably might have expected to give his children during their minority, and to include the pecuniary value thereof in the damages assessed, but there was nothing — indeed there could be nothing — to show a hypothetic injury which might have befallen some identified adult beneficiary or dependent next of kin. The ascer- tained circumstances must govern in every case. There was no occasion to compare the rights of the actual beneficiary with those of supposed depend- ents ; and we think the trial court plainly erred when 40. Instructions referring the jury to the pleadings have been held by some courts to be erroneous and this part of the instructions, in such jurisdictions, should be given to the jury in other instruction and not by referring them to the pleadings. BEaSTEFIClARIES AND DAMAGES FOR DEATH 171 it declared that where the persons suffering injury are the dependent widow and infant children of a deceased husband and father, the pecuniary injury suffered would be much greater than where the beneficiaries were adults or dependents who were mere next of kin. This gave the jury occasion for indefinite speculation and rather invited the con- sideration of elements wholly irrelevant to the true problem presented and to indulge in conjecture in- stead of weighing established facts. The facts brought out during the course of the trial were ade- quate to constitute a strong appeal to the sympathy engendered in the minds of the jurors by the mis- fortune of a widow and her dependent children. In such circumstances it was especially important that the charge should be free from anything which they might construe as a permission to go outside of the evidence. It is the duty of the court in its relation to the jury to protect the parties from unjust verdicts arising from impulse, passion or prejudice or from any other violation of lawful rights. "^^ In another action under the federal act where there was evidence tending to show that the deceased employe was guilty of contributory negligence, the court in- structed the jury that if they found the defendant guilty of negligence, then in assessing damages they had a right to take into consideration all of the testimony offered upon that question and allow such damages as they might deem fair and just compensa- tion with reference to the pecuniary injury resulting 41. Norfolk & W. R. Co. v. Holbiook, — U. S. — , 35 Sup. Ct. 143, reversing same ease reported in (C. C. A.), 215 Fed. 687. 172 INJURIES TO INTERSTATE EMPLOYES ON RAH^ROADS from the plaintiff's intestate to Ms widow, and that, in estimating the damages, they had a right to take into consideration whatever they might believe from the evidence the widow might have reasonably expected in a pecuniary way from the continued life of the intestate. Condemning this instruction as being erroneous under the federal act, one of the Illinois Appellate Courts said: ''This instruction wholly ignored the question of contributory negli- gence and the duty of the jury to consider, under the statute above referred to, a diminution of dam- ages, and the giving of the same was for that reason a reversible error." ^^ In an action by an admin- istrator for the benefit of a wife and two infant children under the federal act, the jury was in- structed on the measure of damages that they might consider the fact that the widow was deprived of her husband's companionship and association, and the loss of home ties in a way to indicate that such matters constitute a pecuniary loss. The court further told the jury that the law attempted to be liberal with the victims of such an accident. The instruction was condemned because it did not attempt to direct the jury to distinguish between support and companionship.^^ A charge to a jury in an action under the federal act stating that the law had no fixed standard by which to ascertain the loss and that the sole question for the jury to deter- mine was what loss the wife and child suffered, was declared to be erroneous for the reason, that the law 42. HaU V. Vandalia E. Co., 116 111. App. 12. 43. New York C. & St. L. R. Co. v. Niebel (C. C. A.), 214 Fed. 952. BENEFICIARIES AND DAMAGES FOR DEATH 173 has fixed a standard of damages and that standard or measure is the financial benefit which might reason- ably have been expected if the deceased employe had not been killed through the negligence of the defendant.'*^ A trial court, in an action under the federal act, instructed the jury as follows: "The measure of damages for loss of life of plaintiff's intestate is the present value of his net income and this is to be ascertained by deducting his net gross income and then estimating the present value of the accumulation from such net income, based upon this expectation of life." Condemning this instruction as being erroneous under the federal act, the Supreme Court of North Carolina said: "The rule for the assessment of damages laid down by his honor, while following the decisions of this court in the construction of Lord Campbell's Act, is erroneous as applied to the Federal Employers' Liability Act as construed by the Supreme Court of the United States. In American E. R. v. Didrick- sen, 227 U. S. 145, 33 Sup. Ct. 224, 57 L. Ed. 456, (3 N. C. C. A. 809n, 831n), that court says: 'The cause of action which was created in behalf of the injured employe would not survive his death, nor pass to his representatives. But the act, in case of the death of such an employe from his injury, creates a new and distinct right of action for the benefit of the dependent relatives named in the statute. The damages recoverable are limited to such loss as results to them because they have been deprived of a reasonable expectation of pecuniary 44. Fogerty v. Northern Pac. Ey. Co., — Wash. — , 133 Pac. 609. 174 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS profits by tlie wrongful death of tlie injured employe. The damage is limited strictly to the financial loss thus sustained.' This language was quoted with approval in Eailroad v. McGinnis, 228 U. S. 175, 33 Sup. Ct. 427, 57 L. Ed. 785, and the court adds in the last case: 'In a series of cases lately decided by this court, the act in this aspect has been construed as intended only to compensate the surviving relatives of such a deceased employe for the actual pecuniary loss resulting to the particular person or persons for whose benefit an action is given. The recovery must therefore be limited to compensate those rela- tives for whose benefit the administrator sues, as are shown to have sustained some pecuniary loss.' "^5 § 89. Beneficiaries May Recover for the Suffering of Deceased as Well as for His Death. — Since the amendment of 1910, which provides that a cause of action accruing to the injured employe survives for the benefit of the beneficiaries named in the statute, if the employe is injured and subsequently dies, it has been held by a Federal Circuit Court of Appeals that the beneficiaries may not only recover their damages for the death, but in the same action a recovery may be had in addition thereto for the damages, due to the injury, incurred by the decedent himself in his lifetime. A railroad employe was injured in August, 1910, by reason of the negligence of the railroad company. He brought suit for the injuries under the federal act and died shortly after 45. Dooley v. Seaboard A. L. Ey. Co., 163 N. C. 454, 6 N. C. C. A. 440n, 442n, 452ii. BENEFICIARIES AND DAMAGES FOR DEATH 175 the commencement of tlie action. The suit was revived in the name of the personal representative and damages were alleged to the deceased by reason of the injury and also damages by reason of the death to the widow and children. A recovery for one sum was had for damages to the deceased in his lifetime and for another sum for the damages to his widow and child by reason of his death, both being included in the same verdict. The point was made that such double damages could not be recovered, but the court held that the recovery was proper. As this is one of the first cases in which this amendment of 1910 was construed, we quote the court's language in full: *'The question remains whether there is substantial basis for the contention of the plaintiff in error to the effect that recovery cannot be had in the same action both for the injury sustained by the deceased and for his death, even where, as here, the action is brought by the representative of the deceased for the benefit of all of the beneficiaries. But for the amendment of the act of April 22, 1908, the position would be well taken, for that act con- tained no provision for the survival of the cause of action thereby given to the injured employe for per- sonal damages sustained by him. But on the 5th day of April, 1910, Congress amended the act of April 22, 1908, by changing § 6 thereof, and by adding the following section as § 9 : ' Sec. 9. That any right of action given by this act to a person suffering injury shall survive to his or her personal repre- sentative, for the benefit of the surviving widow or husband and children of such employe, and if none, 176 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS then of such employe's parents, but in such cases there shall be only one recovery for the same injury. ' Act April 5, 1910, c. 143, 36 Stat. 291 (Fed. Stat. Am. 1912^ Supp. p. 335). It thus appears that Con- gress by the amendment of 1910 provided for the survival of the cause of action given by the act of April 22, 1908, to the employe for his personal injuries, and conferred that cause of action, not upon the estate of the injured employe in the event of his death, but, first, upon the surviving widow or hus- band and children of such employe, with the further provision that 4n such cases there shall be only one recoveiy for the same injury.' "VVe are of the opinion that the plain meaning of these statutory provisions is that, where one receives an injury in the employment of a railroad company under such circumstances as entitles him or her, as the case may be, by virtue of the statute, to recover from the company damages therefor, and that such injury results in the death of the injured person, damages resulting from the personal suffering, and from such death, not only may be recovered by the personal representative of the deceased in one action, but must be recovered in one action only, if at all, for the benefit of those specified in the statute. It results that the judgment in the present case must be, and is, affirmed. "^^ § 90. Death Must be Result of Negligence Before Beneficiaries Can Recover Under § 1, but Not Under § 9. — Under the first section of the Act of 1908, it is provided that the beneficiaries can recover ' ' for such 46. Northern P. Ry. Co. v. Maerkl, 117 C. C. A. 237, 198 Fed. 1. BENEFICIARIES AND DAMAGES FOR DEATH 177 death * * * resulting from negligence" so that the death must be proven to have resulted from the negligence. If an employe is injured while engaged in interstate commerce aiid thereafter dies from other causes, it is quite clear from the language of the statute that the beneficiaries cannot recover damages under the first section. But they may, how- ever, through the personal representative, recover damages under § 9 which would include the damages recoverable by the deceased in his lifetime. Section 9 does not require that the death, upon which the cause of action survives, result from the negligent act. The disputed proposition among commentators whether the beneficiaries could recover under both § § 1 and 9, in view of the clause in the statute ' ' there sliall be only one recovery for the same injury" has been decided in the affirmative.'*'^ § 91, Loss of Prospective Gifts — Contributions During Lifetime of Deceased Employe. — The Supreme Court of the United States, in the leading case which discusses the measure of damages under the Federal Employers' Liability Act, declared that the statute on this question was essentially identical with the first act which ever provided for a cause of action arising out of the death of a human being, that of 9 and 10 Victoria, known as the Lord Camp- bell Act."*^ Under such statutes questions have fre- quently arisen as to whether parents, for instance, 47. Northern P. Ey. Co. v. Maerkl, 117 C. C. A. 237, 198 Fed. 1; St. Louis & S. F. K. Co. v. Conarty, 106 Ark. 421, 6 N. C. C. A. 202n, 447n. 48. Michigan C. E. Co. v. Vreelaud, 227 U. S. 59, 57 L. Ed. 417, 3 N. C. C. A. 807, Ann. Cas. 1914 C 176n. Koberts Liabilities — 12 178 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS in cases of the death of adult children, or adult children in the cases of death of a parent or the next of kin mentioned in the third class of the federal act, may recover for the loss of prospective gifts. Some courts have held it necessary for the plaintiff to show that the deceased, during his life gave assist- ance to the beneficiaries by way of money, services or other material benefits, which, in reasonable probability, would have continued but for the death.'*'^ Other courts have sustained a finding that there was reasonable expectation of the pecuniary benefit, although the evidence fell short of showing that assistance was actually rendered before the death.^o The Supreme Court of North Carolina passed on 49. HiUebrand v. Standard Biscuit Co., 139 Cal. 233; Fordyse v. McCants, 51 Ark. 509, 4 L. E. A, 296, 14 Am. St. Eep. 69; Atchison T. & S. F. E. Co. V. Brown, 26 Kan. 443 ; Cherokee & P. Coal & Mining Co. V. Limb, 47 Kan. 469 ; Eichmond v. Chicago & W. M. Ey. Co., 87 Mich. 374; Houston & T. C. Ey. Co. v. Cowser, 57 Tex. 293; Lehigh Iron Co. V. Eupp, 100 Pa. 95 ; Standard Light & Power Co. v. Muncey, 33 Tex. Civ. App. 416; St. Louis M. & S. E. E. Co. v. Garner, 76 Ark. 555; Colorado C. & I. Co. v. Lamb, 6 Colo. App. 255; LouisvUle N. A. & C. Ey. Co. V. Weight, 134 Ind. 509; Diebold v. Sharpe, 19 Ind. App. 474; McKay v. New England Dredging Co., 92 Me. 454; Green- wood V. King, 82 Neb. 17 ; Holmes v. Pennsylvania E. Co., 220 Pa. 189, 123 Am. St. Eep, 685 ; St. Louis S. W. Ey. Co. v. Huey, — Tex. Civ, App, — , 130 S. W. 1017; Fritz v. Western U. T. Co., 25 Utah 263; Schnatz v. Philadelphia & E. E. Co., 160 Pa. 602; San Antonio & A. P. Ey. Co. v. Long, 87 Tex. 148, 24 L. E. A. 637; Anderson v. Chicago, B. & Q. E. Co., 35 Neb. 95 ; Ehoads v. Chicago & A. Ey. Co., 227 lU, 328, 11 L. E. A. (N. S.) 623, 10 Ann. Cas. Ill; Wabash E. Co. v. Cregan, 23 Ind. App. 1 ; Chicago & A. Ey. Co. v. Shannon, 43 111. 338. 50. Seiben v. Great N. Ey. Co., 76 Minn. 269; Hopper v. Denver & E. G. E. Co., 84 C. C, A, 21, 155 Fed. 273, 6 N. C, C, A, 442n; Pierce v. Conners, 20 Colo. 178, 47 Am. St. Eep. 279 ; Gibson, etc., Co. V. Sharpe, 50 Colo. 321; Swift & Co. v. Johnson, 71 C. C. A. 619, 138 Fed. 867, 1 L. E. A. (N. S.) 1161n. BENEFICIARIES AND DAMAGES FOR DEATH 179 this question under the Federal Employers' Liability Act and held that the father of a brakeman 23 years of age, unmarried, strong, healthy, of good habits was entitled to damages although the proof did not show that the son had contributed anything to his support since reaching his majority.^ ^ In that case, the evidence disclosed that the father was employed by another company and earning good wages; that at the time of the son's death he was not dependent upon the son; but testified that he might be in a few years if the son had lived. The son began to work for himself when he was 21 years old, and had given his father money prior to reaching his majority but not since. The son came home about every six weeks. There was no evidence that he had given his father any pecuniary assistance since reaching his majority. The court held that these facts sus- tained a finding that the father had a reasonable expectation of pecuniary benefit from the continu- ance of the life of the son, and that a motion for a judgment of nonsuit was properly denied.^^ 51. Dooley v. Seaboard A. L. Ey. Co., 163 N. C. 454, 6 N. C. C. A. 440n, 442n, 452ii. 52. The court based its decision upon the following cases : Franklin V. S. E. E, Co., 4 Hurl. & N. (Eng.) 511; DoUon v. S. E. Ey. Co., 4 C. B. N. S. (Eng.) 303; Taff Ey. Co. v. Jenkins, A. C. Eng. Cas., construing the Lord Campbell Act; and Hopper v. Denver & E. G. E. Co., 84 C. C, A. 21, 155 Fed. 273, 6 N. C. C. A. 442n. The cases of Michigan C. E. Co. v. Vreeland, 227 U. S. 509, 57 L. Ed. 417, 3 N. C. C. A. 807, Ann. Cas. 1914 C 176n; American E. Co. v. Didricksen, 227 U. S. 145, 57 L. Ed. 456, 3 N. C. C. A. 809n, 831n ; Gulf, C. & St. F. Ey. Co. V. McGinnis, 228 U. S. 173, 57 L. Ed. 785, 3 N. C. C. A. 806, 4 N. C. C. A. 926n were also cited and quoted from in the same opinion. 180 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS § 92. The Term "Next of Kin" Construed to Mean Illegitimate Children— Conflicting Decisions.— The Supreme Court of North Carolina in a majority opinion, Judge Brown and Hoke dissenting, held that the term "next of kin" in the first section of the Federal Employers' Liability Act included an illegitimate child and that a suit could be maintained by an administrator for the death of an illegitimate son whose mother was dead for the benefit of the mother's legitimate children who were dependent upon the deceased employe.^^ In the majority opinion the court conceded that the general rule was to the contrary, but that in view of a statute of the state of North Carolina, which declares that illegit- imate children of a mother shall be considered legitimate as between themselves and that their estates shall descend and be distributed as if they had been born in lawful wedlock and that in the event of the death of any such child, without chil- dren, his estate shall be distributed among his mother and such other persons as would be next of kin as if all the children had been bom in lawful wedlock, an action for damages under the federal act was maintainable. Judge Brown in the dissenting opinion held that the majority opinion was in con- flict with a prior decision of the Supreme Court of the United States, in which it was held that nothing in the state statute for the distribution of personal property can affect the right of the childless widow of an interstate railway employe, who was fatally injured, to the entire net proceeds of a judgment for 53. Kenney v. Seaboard A. L. Ey. Co., — N. C. — , 82 S. E. 968. BENEFICIARIES AND DAMAGES FOR DEATH 181 the resultant damages, although under the state law the parents would have shared in the distribution.'^"* It was also contended in the dissenting opinion that in the construction of the laws of Congress, the rules of the common law furnished the true guide, and that since under the common law the beneficiaries could not be termed to be "next of kin," the statute of North Carolina could not affect a recovery under the federal act.^^ The Kentucky Court of Appeals, in a suit under the federal act, reached a different conclusion from the majority opinion in the Kenney case. It was held by that court, that the deceased railroad employe, who was an unmarried man born out of wedlock, had no next of kin and that his father's widow and children, although dependent upon him as that term is construed under the federal act, were not beneficiaries under the statute.^^ § 93. Cases Declaring the True Measure of Dam- ages and Approved by the United States Supreme Court. — In Michigan Central R. Co. v. Vreeland,^^ which is the leading case upon the question of the measure of damages in cases of death under the Federal Employers' Liability Act, the Supreme Court of the United States laid down some general rules as to the measure of damages and cited with 54. Taylor v. Taylor, 232 U. S. 363, 58 L. Ed. 638, 6 N. C. C. A. 436. 55. To sustain this proposition the following cases were cited: United States v. American Tobacco Co., 221 U. S. 106, 55 L. Ed. 663 ; Western U. Tel. Co. v. Call Pub. Co., 181 U. S. 92, 47 L. Ed. 765. 56. Cincinnati, N. O. & T. P. Ey. Co. v. Wilson's Adm'r, 157 Ky. 460. ST. Michigan C. R. Co. v. Vreeland, 227 U. S. 59, 57 L. Ed. 417, 3 N. C. C. A. 807, Ann. Cas. 1914 C 176n. 182 INJURIES TO INTERSTATE EMPLOYES ON EAILEOADS approval cases from various courts in wliicli it was held that the rules were properly announced by the courts in those cases.^^ In view of the conflicting rulings of the courts of the several states as to the measure of damages under death statutes, due no doubt to the different language of the statutes of the several states, and in view of the further fact that such statutes do not apply and are superseded by the federal act as to interstate employes, these cases approvingly cited by the United States Supreme Court on this question, are of value to the practitioner and the courts in ascertaining the proper rules and standards in determining the measure of damages to the various beneficiaries named in the federal act. In Davis v. Guamieri, cited in the notes, the court instructed the jury as follows: "In this case the plaintiff's damages, if any, should be a fair and just compensation for the pecuniary injury resulting to the husband and children from the death of Angela Guamieri. In no case can the jury, in estimating the damages, consider tlie bereavement, mental anguish or pain suffered by the living for the dead. 58. Blake v. Midland Ey. Co., 18 Q. B. (Eng.) 93, 109; Seward V. Vera Cruize, 10 App. Cas. 59; Illinois C. R. Co. v. Barron, 5 Wall (U. S.) 90, 105, 106, 18 L. Ed. 591; Davis v. Guamieri, 45 Ohio St. 470, 4 Am. St. Rep. 564; Hurst v. Detroit City Ry. Co., 84 Mich. 539, 545, 3 N. C. C. A. 778; Monroe v. Pacific Dredging Co., 84 Cal. 515, 18 Am. St, Rep. 248; Tilley v. Hudson R. R. Co., 24 N. Y. 471, 29 N. Y. 252; Schaub v. Hannibal St. J. Ry. Co., 106 Mo. 74; Atchison, T. & S. F. Ry. Co. v. Wilson, 1 C. C. A. 25, 48 Fed. 57; Lett V. Railway, 11 Out. App. (Can.) 1; Pennsylvania R. Co. v. Goodman, 62 Pa. 329, 339; Louisville N. A. & C. Ry. Co. v. Rush, 127 Ind. 545. BENEFICIARIES AND DAMAGES FOR DEATH 183 The damages are exclusively for a pecuniary loss, not a solace. The reasonable expectation of what the husband and children might have received from the deceased, had she lived, is a proper subject for the consideration of the jury, if they find for the plaintiff. What the husband and children might reasonably expect to receive by reason of the services of this woman in a pecuniary point of view, is to be taken into account in determining the amount of damages, if you find for the plaintiff. It should be said that it is the present worth as a gross sum in money, for the loss of the services of this woman, that you are to find, if you find a loss. It is that sum which in money is a compensation for what you find this woman would reasonably have saved for her family. Of course, in determining this, these things are all to be considered; that is, the age, health, probability of length of life, or death, if she had not died from taking this drug." The court held that this instruction was not open to the objection of counsel that the term ''services of the family" included not only benefits financially, but also the companionship to the husband and children, instruc- tion by way of culture, moral training and other elements of like character, which are not within the rule of pecuniary compensation. The court held that the instruction gave a sound, clear and concise state- ment of the true rule of damages applicable to the case. In Munro v. Pacific Coast Dredging Company, cited, supra, with approval by the Supreme Court of the United States, the court gave to the jury the 184 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS following two instructions: "No. 3. If your verdict shall be for the plaintiff, such damages may be given by you as, under all the circumstances of the case, may be just. And in determining the amount of such damages, you have the right to take into considera- tion the pecuniary loss, if any, suffered by the mother of Michael Stanton by his death, if you find that his mother is living. And the loss which the plaintiff is, in such a case as this, entitled to recover, is what the deceased would have probably earned and accumulated by his labor in his business or calling during the residue of his life, and which would have gone to the benefit of his mother, or heirs, or personal representative, taking into consideration his age, health, habits of industry, ability and disability to labor, and the probability of his length of life. No. 4. I further instruct you if, from the evidence, you should find for the plaintiff, then the measure of damages is not alone the pecuniary loss and injury sustained by the mother in the loss of her son, as just complained, but in assessing the damages given, you may, in addition, take into consideration the sorrow, grief and mental suffering occasioned by his death, to his mother, together with the loss, if any, sustained by her in being deprived of the com- fort, society, support and protection of the deceased by reason of his death." The court in that case, after reviewing the English cases under the Lord Campbell Act, held that in a suit by a parent for the death of a child, recovery can only be had for the pecuniary loss which the mother might have sus- BENEFICIARIES AND DAMAGES FOR DEATH 185 tained, and that Instniction No. 4 was erroneous and should not have been given. In Louisville, N. A. & Corydon Railroad Company V. Rush, 127 Ind. 545, also cited with approval in the Vreeland case, the court gave to the jury this instruction in a case where the father was suing for the death of a seven-year old child: "In any form of verdict you may adopt, you are required to state in writing such sum of money as you assess the plaintiff's damages at, in the event that he may, under the law, be entitled to recover under the facts as found by you. I, therefore, instruct you that in estimating and considering the amount of his dam- ages you can only take into consideration the pecuniary injury, if any, that the plaintiff has sus- tained by the loss of services of the deceased from the time of her death until she would have reached the age of twenty-one years if she had lived. In other words, the proper measure of damages is the pecuniary value of the child 's services from the time of her death until she would have attained her majority, in connection with her prospects in life, less her support and maintenance. You are not at liberty to consider the fact, if it be a fact, that the plaintiff has been deprived of the happiness, comfort and society of his daughter, nor can you consider any physical or mental suffering or pain, which may have been incurred by the plaintiff', or his family, by the deceased cliild, by reason of the injuries described in the complaint. You are simply to esti- mate the value of the child's services to the plaintiff from the time of her death until she would have 186 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS attained her majority, less the cost of her support and maintenance, including clothing, boarding, schooling and medical attendance. ' ' It was held by the court that in view of the instructions just quoted, that the following instruction was not erroneous, for the reason that the condition of the family should be taken into account in determining the amount of damages: "In estimating the plaintiff's damages, the jury may consider all his family at the time of the alleged accident, and take into account all the services that this child, alleged to have been killed, might reasonably have performed in his family until she attained her majority, and such services may include actual labor in helping to carry on the house- hold affairs, and the pecuniary value of all the acts of kindness and attention which might reasonably be anticipated that she would have performed for the plaintiff and his family, until her majority, and would administer to their comfort as well as to their necessities. But the jury should not consider acts of affection, simply, and loss of companionship. The recovery is limited by the law to the actual pecuniary loss." In Tilley v. Hudson Kiver Railroad Co., 24 N. Y. 471, 29 N. Y. 252, another case cited with approval in the Vreeland case, it was held that in an action by a father, as administrator of his wife, who was killed by negligence, leaving children, the value of her earnings, and the probability that the children would have received an estate, increased by such earnings on the death and intestacy of their father, cannot be considered in estimating the damages. But BENEFICIARIES AND DAMAGES FOR DEATH 187 the court placed this rule on the ground that under the common law, which was then in effect, the hus- band would inherit the property of the wife and that, therefore, any prospective inheritance to the chil- dren was too remote. It was held, however, that injury to the children in the loss of maternal nurture and education was a pecuniary one within the intent of the statute and a proper ground of damages. Defining the word "pecuniary" in such cases, the court said: "The injury to the children of the de- ceased by the death of the mother was a legitimate ground of damages; and we do not agree with de- fendant's counsel that they ought to have been nominal. The difficulty upon this point arises from the employment of the word 'pecuniary' in the statute; but it was not used in a sense so limited as to confine it to the immediate loss of money or property. For if that were so, there is scarcely a case where any amount of damages could be re- covered. It looks to prospective advantages of a pecuniary nature, which had been cut off by the premature death of the person from which they would have proceeded, and the word 'pecuniary' was used in distinction, to those injuries to the affections and sentiments which arise from the death of relatives and which, though most painful and grievous to be borne, cannot be measured or reim- bursed by money. It includes, also, those losses which result from the deprivation of the society and companionship of relatives, which are equally incapable of being defined by any recognized meas- ure of value. But even children sustain a loss from 188 INJURIES TO INTERSTATE EMPLOYES ON RAILBOADS the death of a parent, and especially of a mother, of a different kind. She owes them the duty of nurture and of educational, moral and physical training, and of such instructions as can only pro- ceed from a mother. That is, to say the least, as essential to their future well-being in a worldly point of view and to their success in life as the instruction in letters and other branches of ele- mentary education which they receive at hands of other teachers who are employed for pecuniary com- pensation. * * * The injury in these cases is not pecuniary in the very strict sense of the word, but it belongs to that class of wrongs, as distinguished from injuries, to the feelings and sentiments; and in my view, therefore, it falls within the term as used in the statute. * * * The children have been de- prived of that which they were entitled to receive by the wrongful act of the defendant. ' ' § 94. Distribution of Amount Recovered Con- trolled by Federal Statute and Not State Laws. — In the distribution of any money received by an administrator of a deceased employe of a common carrier by railroad killed within the terms and con- ditions of the federal act, the state statute of descent and distribution does not control, but the money must be paid to the beneficiaries named in the federal statute, no matter whether a recovery is had either under § 1 of the federal act or § 9.^^ In the Taylor case an administrator of the estate of a railroad employe brought suit under the Federal Employers ' Liability Act and by consent of a court having juris- 59. Taylor v. Taylor, 232 U. S. 363, 58 L. Ed. 638. BENEFICIARIES AND DAMAGES FOR DEATH 189 diction over the estates of deceased persons, the administrator compromised with the railroad com- pany and accepted a judgment of $5,000. Under the law of the state one-half of this amount would have gone to the father and one-half to the widow of the decedent. The appellate division of the Supreme Court of New York held that the father was entitled to half of the money and the decision was affirmed by the court of appeals. But when the case reached the Supreme Court of the United States on writ of error, that court held that state laws were entirely superseded as to such a fund and that the widow was entitled to the whole sum. § 95. Damages Due Each Beneficiary Must be Apportioned in the Verdict. — In all actions under the Federal Employers' Liability Act where there are several beneficiaries, the damages due each of them must be separately stated in the verdict, the apportionment being for the jury to return.*^*' 60. Gulf, C. & S. F. Ey. Co. v. McGinnis, 228 U. S. 173, 57 L. Ed. 785, 3 N. C, C. A. 806, 4 N. C. C. A. 926n, Hardwick v. Wabash K. Co., 181 Mo. App. 156; Southern Ey. Co. v. Smith, 123 C. C. A. 488, 205 Fed. 360; Collins v. Pennsylvania E. Co., 148 N. Y. Supp. 777 J Fogarty v. Northern P. Ey. Co., — Wash. — , 133 Pac. 609. CHAPTER VI ASSUMPTION OF RISK UNDER FEDERAL ACT § 96. The Statutory Provision. § 97. Assumption of Eisk a Defense Under the Federal Act. § 98. Doctrine Applied as Defined in Decisions of National Courts, § 99. Concrete Instructions Must Be Given, if Eequested. § 100. "When Assumption of Eisk Is Not a Defense — Federal Safety Appliance Act. § 101. When Assumption of Eisk Is No Defense When There Is a Plurality of Causes. § 102. Violations of Eules Not Assumption of Eisk. § 103. Distinction Between Assumption of Eisk and Contributory Negligence. § 104. Cases in Which Interstate Employes Were Held Not to Have Assumed the Eisk. § 105. Cases in Which Interstate Employes Were Held to Have As- sumed the Eisk. § 106. Defense of Assumption of Eisk Must Be Pleaded to Be Available. § 107. Confusing Assumption of Eisk with Contributory Negligence in Jury Instructions Under Federal Act. § 108. Assumption of Eisk Eliminated in Actions for Violation of Hours of Service Act. § 96. The Statutory Provision. — Section 4 of tlie federal act provides "that in any action brought against any common carrier under or by virtue of any of the provisions of this act to recover damages for injuries to, or the death of, any of its employes such employe shall not be held to have assumed the risk of his employment in any case where the viola- tion by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe." 190 ASSUMPTION OP BISK 191 § 97. Assumption of Risk a Defense Under the Federal Act. — After the passage of the act of 1908, several courts held that assumption of risk was not a defense to an action under the federal act.^ These courts decided, that, if the plaintiff's injuries were due to any act of negligence enumerated in the first section of the act, that the result of such negligence could not be assumed by the employe even though he knew the risks and dangers arising therefrom. The decisions of these courts is illustrated by an opinion of Judge McCall in Wright v. Yazoo & M. V. R. Co., cited in the notes, in which he said: ''Shall the courts destroy the effect of the act in this particu- lar by holding that common carriers are not liable to their servants for injury or death inflicted as a result of the negligence of their officers, agents or employes, upon the ground that the servant assumed the risk incident to the negligence of the officers, agents or employes of the carrier. * * * As I construe the act, the risk that the employe now assumes is the ordinary dangers incident to his employment, which does not include, since the pas- sage of this act, the assumption of the risk incident to the negligence of the carrier's officers, agents or employes, or any defect or insufficiency due to its negligence, in its cars, engines, appliances, ma- 1. WVight V, Yazoo & M. V. Ey. Co., 197 Fed. 94; Philadelphia, & W. E. Co. V. Tucker, 35 App. Cas. (D. C.) 123, 1 N. C. C. A. 841n; Southern Ey. Co. v. Howerton, — Ind. — , 101 N. E. 121 ; Sandidge v. Atchison, T. & S. F. E. Co. (C. C. A.), 193 Fed. 867; Malloy v. Northern P. E. Co., 151 Fed. 1019, 1 N. C. C. A. 862n; Bower v. Chicago & N. W. E. Co., — Neb. — , 6 N. C. C. A. 213n, 148 N. W. 145. 192 INJURIES TO INTEESTATE EMPLOYES ON RAILEOADS cMnery, track, roadbed, works, boats, wharves, or other equipment." But these decisions, and others of like import, have, no doubt, been in effect, overruled by subse- quent decisions of the Supreme Court of the United States.2 In the Horton case cited, the Supreme Court held that except as to violations of federal statutes enacted for the safety of employes, the defense of assumption of risk sliall have its former effect as a complete bar to an action under the statutes. The court in that case said: ''It seems to us that § 4, in eliminating the defense of assump- tion of risk in the cases indicated, quite plainly evidences the legislative intent that in all other cases such assumption shall have its former effect as a complete bar to the action." An instruction given by the trial court in that case pursuant to a statute of the state so providing that a railroad em- ploye did not assume any defective appliance fur- nished by the employer, was held erroneous and not 2- Seaboard A. L. Ey. Co. v. Horton, 233 U. S. 492, 58 L. Ed. 1062, 6 N. C. C. A. 75n, 95n, 101, 102n, reversing the same case reported in 162 N. C. 424; accord, Central V. E. Co. v. Bethune, 124 C. C. A. 528, 206 Fed. 868 ; Guana v. Southern P. Ey. Co., — Ariz. — , 6 N. C. C. A. 96n, 139 Pac. 782; Port Worth D. C. Ey. Co. v. Copeland, — Tex. Civ. App. — , 6 N. C. C. A. 93n, 164 S. W. 857; Missouri K. & T. Ey. Co. V. Scott, — Tex. Civ. App. — , 160 S. W. 432 ; Oberlin V. Oregon W. E. & N. Co., — Ore. — , 6 N. C. C. A. 75n, 79n, 95n, 188n, 142 Pae. 554; Barker v. Kansas City, M. & O. E. Co., 88 Kan. 767, 43 L. E. A. (N. S.) 112; TruesdeU v. Chesapeake & O. Ey. Co., 159 Ky. 718; Parley v. N. Y., N. H. & H. E. Co., 87 Conn. 328, 6 N. C. C. A. 444n, 445n, 448n, 452n; Chesapeake & O. E. Co. v. Walker's Adm'r, 159 Ky. 237; Glenn v. Cincinnati, N. O. & T. P. Ey. Co., 157 Ky. 453; Helm v. Cincinnati, N. O. & T. P. Ey. Co., 156 Ky. 240, 6 N. C. C. A. 83n, 84n. ASSUMPTION OF RISK 193 a proper application of the rule under the federal act. The court held that under the common law doctrine of assumption of risk, the employe assumed defects due to the master's negligence when those defects and risks arising therefrom where known to him or were open and obvious or plainly observable. § 98. Doctrine Applied as Defined in Decisions of National Courts. — Decisions of state courts and laws of the several states do not govern in determining the application of the doctrine of assumption of risk in actions under the federal act. On the contrary this defense is to be applied as construed and de- fined by the decisions of the national courts.^ Under the rulings of the United States Supreme Court an employe of a railroad engaged in interstate commerce, whether he is actually aware of them or not, assumes such damages and risks as are ordi- narily incident to his employment and he also assumes the risks due to the negligence of his employer when he becomes aware of the defect and of the risk arising from it or when such defects and risks are so open and obvious that an ordinarily prudent person would have observed and appre- ciated them and then continues in the service with- out complaint.^ 3. Seaboard A. L. Ey. Co. v. Horton, 233 U. S. 492, 58 L. Ed. 1062, 6 N. C. C. A. 75n, 9on, 101, 102n; Freeman v. Powell, — Tex. Civ. App. — , 144 S. W. 1033 ; Glenn v. Cincinnati, N. O. & T. P. Ky, Co., 157 Ky. 453; Seaboard A. L. Ey. Co. v. Moore, 228 U. S. 433, 57 L. Ed. 907, 3 N. C. C. A. 812; contra, Fish v. Chicago, E. I. & P. Ey. Co., — Mo. — , 172 S. W. 340. 4. GUa V. G. & N. E, Co. v. Hall, 232 U. S. 94, 58 L. Ed. 521, 1 N. C. C. A. 362, 4 N. C. C. A. 231n; Texas P. E. Co. v. Harvey, 228 U. S. 319, 57 L. Ed. 852, Choctaw, 0. & G. E. Co. v. McDade, Roberts Liabilities— 1 3 194 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS In the Horton cases cited the United States Supreme Court, defining assumption of risk under the federal act, said: "Some employments are necessarily fraught with danger to the workman — danger that must be and is confronted in the line of his duty. Such risks as are normally and neces- sarily incident to the occupation are presumably taken into the account in fixing the rate of wages. And a workman of mature years is taken to assume risks of this sort, whether he is actually aware of them or not. But risks of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These the em- ploye is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unless defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them. These distinctions have been recognized and applied in numerous decisions of this court. Choc- taw, Oklahoma & Gulf R. Co. v. McDade, 191 U. S. 64, 68 (48 L. Ed. 96) ; Schlemmer v. Buffalo, Eochester & Pittsburgh By. Co., 220 U. S. 590, 596 (4 N. C. C. A. 483n) ; Tex. & Pac. Ry. Co. v. Harvey, 228 U. S. 319, 321 (57 L. Ed. 852); Gila Valley Ry. Co. v. Hall, 232 U. S. 94, 102 (58 L. Ed. 521, 1 N. C. C. A. 362, 4 N. C. C. A. 231n), and cases cited. When the 191 U. S, 64, 48 L. Ed. 96; Schlemmer v. Buffalo K. & P. R. Co., 220 U. S. 590, 55 L. Ed. 596, 4 N. C. C. A. 483ii, aff'g 220 Pa. 470; Emanuel v. Georgia & F. Ry. Co., — Ga. — , 83 S, E. 230. ASSUMPTION OF RISK 195 employe does know of the defect, and appreciates the risk that is attributable to it, then if he continues in the employment, without objection, or without obtaining from the employer or his representative as assurance that the defect will be remedied, the employe assumes the risk, even though it arise out of the master's breach of duty. If, however, there be a promise of reparation, then during such time as may be reasonably required for its performance or until the particular time specified for its perform- ance, the employe relying upon the promise does not assume the risk unless at least the danger be so im- minent that no ordinarily prudent man under the circumstances would rely upon such promise. Hough V. Railway Co., 100 U. S. 213, 224 (25 L. Ed. 612); Southwestern Brewery v. Schmidt, 226 U. S. 162, 168 (57 L. Ed. 170). This branch of the law of master and servant seems to be traceable to Holmes V. Clarke, 6 Hurl. & Norm. 348; Clarke v. Hohnes, 7 Hurl. & Norm. 937. ' ' In another recent case before the Supreme Court, the plaintiff had been injured while riding a three-wheeled gasoline car on the railroad track of defendant. The car was derailed due to a defective condition of the flange of one of the wheels. The plaintiff did not know of the defect and had not been working with the car but two or three days. The lower court gave this instruction on assumption of risk to the jury: "The true test ' is not in the exercise of ordinary care, to discover dangers, by the employe, but whether the defect is known or plainly observable by him. An employe is not charged by law with the assumption of a risk 196 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS arising ont of a defective appliance provided by Ms employer, unless his employment was of such a nature as to bring to his attention and cause him to realize and comprehend the dangers incident to the use of such appliances." Concerning this instruc- tion the Supreme Court said: "This, we think, was a correct instruction under the circumstances of the case. An employe assumes the risk of dangers nor- mally incident to the occupation in which he volun- tarily engages, so far as these are not attributable to the employer's negligence. But the employe has a right to assume that his employer has exercised proper care with respect to providing a safe place of work, and suitable and safe appliances for the work, and is not to be treated as assuming the risk arising from a defect that is attributable to the employer's negligence, until the employe becomes aware of such defect, or unless it is so plainly observable that he may be presumed to have known of it. Moreover, in order to charge an employe with the assumption of risk attributable to a defect due to the employer's negligence, it must appear not only that he knew (or is presumed to have known) of the defect, but that he knew it endangered his safety; or else such danger must have been so obvious that an ordinarily prudent person under the circum- stances would have appreciated it. Union Pacific Railway Co. v. O'Brien, 161 U. S. 451, 457 (40 L. Ed. 766) ; Texas & Pacific Railway v. Archibald, 170 U. S. 665, 671 (42 L. Ed. 1189); Choctaw, Oklahoma & C. R. R. Co. V. Swearingen, 196 U. S. 51, 62 (49 L. Ed. ASSUMPTION OF RISK 197 382); Bums v. Delaware & Atlantic Telegraph Co., 70 N. J. Law, 745, 752 (67 L. E. A. 956)." ^ § 99. Concrete Instruction Must be Given, if Re- quested. — In instructing the jury on the question of assumption of risk a concrete instruction applicable to the phase of the evidence should be given; and the court should not couch the instruction in such general and sweeping language that it is not cal- culated to give the jury an accurate understanding of the law upon the subject.*^ In an action under the federal act, the plaintiff, an engineer, was in- jured by the explosion of a water glass on which the gauge was missing. The United States Supreme Court held that the state trial court committed re- versible error in refusing to give the following instruction : " If you find by a preponderance of evi- dence that the water glass on the engine on which plaintiff was employed was not provided with a guard glass, and the condition of the glass was open and obvious and was fully known to the plaintiff, and he continued to use such water glass with such knowledge and that he knew the risk incident thereto, then the court charges you that the plain- tiff voluntarily assumed the risk incident to such use."'^ § 100. When Assumption of Risk Is Not a Defense — Federal Safety Appliance Act. — In any action for injuries based upon a violation by a railroad com- 5. GUa V, G. & N. R. Co. v. Hall, 232 U. S. 94, 58 L. Ed. 521, 1 N. C. C. A. 362, 4 N. C. C. A. 231n. 6. Norfolk & W, Ey. Co. v. Earnest, 229 U. S. 114, 57 L. Ed. 1096, 3 N. C. C. A. 806, Ann. Cas. 1914 C 172n. 7. Seaboard A. L. By. Co. v. Horton, 233 U. S. 492, 58 L. Ed. 1062, 6 N. C. C. A. 75n, 95n, 101, 102n. 198 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS pany of any federal statute enacted for the safety of employes, such as the Federal Safety Appliance Act, if it is shown that the injury is due to a viola- tion of such federal statutory laws, the doctrine of assumption of risk is absolutely wiped out and is no defense whatever to an action under the federal act. The language of § 4 of the act makes this proposi- tion clear and it has been so construed by the courts without dissent.® Passing upon a requested instruc- tion in an action for violation of the Safety Appliance Act which charged that if the plaintiff knew the defect and the risk arising therefrom, he could not recover, the Supreme Court of the United States in the Crockett case said: "Upon the merits, we of course sustained the contention that by the Em- jDloyers' Liability Act the defense of assumption of risk remains as at common law, saving in the cases mentioned in § 4, that is to say: 'Any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injuiy or death of such employe.' " A few courts had held that the clause ' * any statute enacted for the safety of employes," included state statutes as well as federal. The result of this ruling would have been that assumption of risk under the national law would have been an absolute defense to the same acts in some states and not in others, thus destroying ^the uniformity of the applicability of the federal law throughout the nation. Such a contention was condemned by the Supreme Court of the United 8. Southern Ey. Co. v. Crockett, 234 U. S. 725, 58 L. Ed. 1564, 6 N. C. C. A. 94n. ASSUMPTION OF RISK 199 States in the following language: "By the phrase 'any statute enacted for the safety of employes,' Congress evidently intended federal statutes, such as the Safety Appliance Acts (March 2, 1893, c. 196, 27 Stat. 531, 6 Fed. Stat. Ann. pp. 752-756; March 2, 1903, c. 976, 32 Stat. 943, 10 Fed. Stat. Ann. p. 375; April 14, 1910, c. 160, 36 Stat. 298, Fed. Stat. Ann. 1912 Supp. p. 335; February 17, 1911, c. 103, 36 Stat. 913, Fed. Stat. Ann. 1912 Supp. p. 339); and the Hours of Service Act (March 4, 1907, c. 2939, 34 Stat. 1415, Fed. Stat. Ann. 1909 Supp. p. 581). For it is not to be conceived that, in enacting a general law for establishing and enforcing the responsibility of common carriers by railroad to their employes in interstate commerce. Congress intended to permit the legislatures of the several states to determine the effect of contributory negligence and assumption of risk, by enacting statutes for the safety of employes, since this would in effect relegate to state control two of the essential factors that determine the responsibility of the employer. ' ' § 101. When Assumption of Risk Is No Defense When There Is a Plurality of Causes. — Where the injury to an employe is due to two acts contributing as proximate causes, notwithstanding the fact that the employe assumes the risk from one of these causes, assumption of risk is no defense to the action if the other proximate cause is one for which the master is liable and is not an ordinary risk of the employment or one of which the employe has no constructive or actual knowledge.^ 9. Northern P. R. Co. v. Maerkl, 117 C. C. A. 237, 198 Fed. 1. 200 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS § 102. Violations of Rules Not Assumption of Risk. — In an action under the federal act, the defendant pleaded in its answer that the plaintiff had contri- buted to his own injury by violating one of its rules governing employes and that he therefore assumed the risk. The court held that such a fact, even if proven, did not show assumption of risk for the reason that such a defense is referable to contribu- tory negligence and not to assumption of risk.^° ^ § 103. Distinction Between Assumption of Risk and Contributory Negligence. — The distinction be- tween assumption of risk and contributory negli- gence under the federal act is important for the reason that, except as to violations of federal statutes for the protection of employes, assumption of risk is an absolute defense and contributory negligence only reduces the damages. As construed by the United States Supreme Court an employe assumes the ordinary risks and hazards of his occupation and also those defects and risks which are known to him, or are plainly obser^^able, although due to the master's negligence. Contributory negligence, on the other hand, is the omission of the employe to use those precautions for his own safety which ordinary prudence requires. ^^ In an action under the Federal Employers' Lia- bility Act, the Supreme Court of the United States described the distinction in the following language: 10, Obeilin v. Oregon W. R. & N. Co., — Ore. — , 6 N. C. C. A. 75n, 79n, 95n, 188n, 142 Pac. 554; Carter v. Kansas City S. Ry. Co., — Tex. Civ. App. — , 4 N. C. C. A. 634n, 155 S. W. 638. 11. Schlemmer v. Buffalo, R. & P. R. Co., 220 U. S. 590, 55 L. Ed. 596, 4 N. C. C. A. 483n, aff'g 222 Pa. 470. ASSUMPTION OF RISK 201 ''And, taking §§3 and 4 together, there is no doubt that Congress recognized the distinction between contributory negligence and assumption of risk; for, while it is declared that neither of these shall avail the carrier in cases where the violation of a statute has contributed to the injury or death of the em- ploye, there is, with respect to cases not in this category, a limitation upon the effect that is to be given to contributory negligence, while no corre- sponding limitation is imposed upon the defense of assumption of risk — perhaps none was deemed feasible. The distinction, although simple, is some- times overlooked. Contributory negligence involves the notion of some fault or breach of duty on the part of the employe, and since it is ordinarily his duty to take some precaution for his own safety when engaged in a hazardous occupation, contributory negligence is sometimes defined as a failure to use such care for his safety as ordinarily prudent em- ployes in similar circumstances would use. On the other hand, the assumption of risk, even though the risk be obvious, may be free from any suggestion of fault or negligence on the part of the employe." ^^ § 104. Cases in Which Interstate Employes Were Held Not to Have Assumed the Risk.— Railroad em- ployes engaged in interstate commerce were held in actions under federal act not to have assumed the risk under the following facts. Decedent while en- gaged in cleaning snow from the tracks of a railway 12. Seaboard A. L. Ry. Co. v. Horton, 233 U. S. 492, 58 L. Ed. 1082, 6 N. C. C. A. 75n, 95n, 101, 102n. 202 INJURIES TO INTERSTATE EMPLOYES ON RiVILROADS company when there was mist, smoke and some snow, was killed by a train bound from New York to Phila- delphia. At the place of the accident there were four main lines of trackage. Shortly after 9 :00 o 'clock in the morning the men working with plaintiff were warned to step off track No. 4 by the call of the fore- man in order to let a local train by. The decedent and two others were working on track 2. There was no call to them, the practice of the foreman being to designate the track in his warning, the men on the other track continuing to work. The New York train struck the decedent while he was working on track No. 2 and it approached without any signal or warn- ing. The local train was slow and the New York train came fast and while the men were attracted by the first, the other rushed upon them. The defend- ant produced testimony in conflict with these facts shown by the plaintiff. Speaking of the legal effect of this evidence on the question of assumption of risk Mr. Justice McKenna, for the court, said: '*It is hence contended by the railway company that McGovem assumed the risk of the situation, and that, therefore, it was error for the district court to refuse to give an instruction which presented that contention. We have given the testimony in general outline, but enough to show that what conflict there was in it was for the jury to judge and what deduc- tions there were to be made from it were for the jury to make. And the district court, being of this view, refused to charge the jury, as we have seen, that McGovem had assumed the risk of the situation. ASSUMPTION OF RISK 203 We cannot say that, as a matter of law, the court was mistaken." ^^ In another case the Supreme Court again held that a deceased employe did not assume the risk under the circumstances hereinafter detailed.^^ The decedent was an engineer on a freight train proceed- ing southward on a lead track in a railroad yard. Aliead of him there were some cars on a yard track. While visible to the engineer from the right side they became more and more invisible as the train ad- vanced. The engineer asked the fireman who was on the left side of the engine and in full view of the cars, whether they were clear of the lead track and was answered that they were. There was a dispute as to whether a head brakeman was riding in the cab and whether he called the engineer's attention to the fact that the coal cars were not in the clear. But there was no dispute that the engineer again asked the fireman who answered that the cars were not clear and jumped from the locomotive. The 13. McGovern v. Philadelphia & E. E. Co., 235 U. S. 389, — L. Ed. — . 14. Yazoo & M. V. R. Co. v. Wright, 235 U. S. 376, — L, Ed. — , aff 'g same case reported in 125 C. C. A. 25, 207 Fed. 281, 197 Fed. 94. In this case the Supreme Court ignored the rule as to assumption of risk announced by Judge MeCall, the trial judge, to the effect that the employe does not in any case assume the risk due to the master's negligence (see § 97, supra) ; but the court held that, on the facts, it would not declare as a matter of law that the engineer knew of the danger or must be presumed to have known of it. The cases holding that an employe assumes the risk due to the master's negli- gence when the defect and danger arising from it, is known or is plainly observable, and then continues in the employment without com- plaint, were cited by the court with approval. See § 98, supra; Gila V. G. & N. E. Co. V. HaU, 232 U. S. 94, 58 L. Ed. 521, 1 N. C. C. A. 362, 4 N. C. C. A. 231n, 204 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS engineer shut off his power and stepped to the left side, where, from the collision which immediately resulted, he was injured and died. Concerning these facts the court in denying that as a matter of law the decedent had assumed the risk, said: "Whatever may be the difficulty of distinguishing in many cases between the application of the doctrine of assump- tion of risk and the principles of contributory negli- gence, tliat there is no such difficulty here is ap- parent, since the facts as stated above absolutely preclude all inference that the engineer knew or, from the facts shown, must be presumed to have known that the coal cars were protruding over the track on which he was moving and deliberately elected to assume the risk of collision and great danger which would be the inevitable result of his continuing the forward movement of his train. ' ' The court in this case cited with approval several of its former opinions in which the assumption of risk was discussed and these cases are given in the notes.^^ A switchman was jarred from the narrow rim of the pilot of a ''road" engine while it was being used at night in the yards as a switch engine. The court held that whether he assumed the risk was a ques- ts. Union P. E. Co. v. O'Brien, 161 U. S. 451, 40 L. Ed. 766; Texas & P. E. Co. v. Archibald, 170 U. S. 665, 42 L. Ed. 1188, 4 Am. Neg. Eep. 746; Texas & P. E. Co. v. Behymer, 189 U. S. 468, 47 L. Ed. 905, 13 Am. Neg. Rep. 695 ; Choctaw, O. & G. E. Co. v. McDade, 191 U. S. 64, 48 L. Ed. 96, 15 Am. Neg. Eep. 230; Schlemmer v. Buffalo, E. & P. E. Co., 205 U. S. 1, 12, 51 L. Ed. 681, 686, 1 N. C. C. A. 859n, 4 N. C. C. A. 483n, rev'g 207 Pa. 198; s. c, 220 U. S. 590, 55 L. Ed. 596, 4 N. C. C. A. 483n, aff'g 222 Pa. 470; Seaboard Air Line E. Co. v. Horton, 233 U. S. 492, 503, 504, 58 L. Ed. 1062, 1069, 1070, 6 N. C. C. A. 75n, 101, 102n. ASSUMPTION OP RISK 205 tion for the jury.^*' A brakeman in the nighttime was ordered by the yard master to couple up an air hose between two cars and it was necessary to do this by hand. The brakeman was required to step within the tracks and attach the two ends of the air hose together. While so at work he was struck by the car to which he had been ordered to couple and this was caused by other cars being negligently ' ' kicked ' ' against it by other employes. The court held that the plaintiff did not assume the risk.^'^ A freight conductor did not assume the risk of the negligence of a flagman working under him who failed to pro- tect the rear of the train. ^^ A railway employe who had been working only three or four days on a three- s wheeled gasoline car did not assume the risk from a \ defective flange on the wheel of the car of which he was ignorant and it did not appear to be a part of ( his duty to inspect the wheel or to look after its/ condition.^^ An employe of a railroad company who was injured in a collision did not assume the risk of an injury from the negligence of a railroad company in permitting the engine to be used in pulling a train which leaked steam so that the engineer could not see a train ahead of him.^*^ A track laborer repairing a switch at night in the terminal yards of a railroad company did not assume the risk of injury due to 16. Louisville & N. R. Co. v. Lankford, 126 C. C. A. 247, 209 Fed. 321, 6 N. C. C. A. 86n, 106n. 17. Chesapeake & O. R. Co. v. Proffit (C. C. A.), 218 Fed. 23. 18. Pennsylvania Ry. Co. v. Goughnor, 126 C. C. A. 39, 208 Fed. 961. 19. Gila V. G. & N. R. Co. v. Hall, 232 U. S. 94, 58 L. Ed. 521, 1 N. C. C. A. 362, 4 N. C. C. A. 231n. 20. Niles V. Cent. V. Ry. Co., 87 Vt. 356, 6 N. C. C. A. 75n. 206 INJURIES TO INTERSTATE EMPLOYES ON R^ULROADS tlie negligence of the company in causing cars to be upon the track on which he worked under their own momentum and without any warning or signal.^^ An employe injured by striking an unlighted switch stand too close to the track did not assume the risk of injury therefrom. ^^ A section man who was hurt while assisting an employe in taking a motor car off of a railroad track in order to allow a train to pass did not assume the risk of injury on account of an in- sufficient number of men to assist him as he had no time to deliberate and determine whether the car could be taken off the track by two men with safety.^^ A brakeman injured because of a defective fastening in a car door, did not assume the risk of injury there- from, it was held, for the reason that there was no evidence that he knew of the defect or could have known of it by exercising ordinary care.^'* § 105. Cases in Which Interstate Employes Were Held to Have Assumed the Risk. — Employes engaged in interstate commerce were held by the courts to have no remedy under the federal act because of assumption of risk, under the following circum- stances: An engineer while his train was moving, climbed on top of the coal in the tender to ascertain the amount of water in the tank by looking through a man hole at the rear end of the tender, and while 21. Colasurdo v. Central E. Co. of New Jersey, 180 Fed. 832; s. c, 113 C. C. A. 379, 192 Fed. 901. 22. Vickery v. New London N. Ey. Co., 87 Conn. 634, 4 N. C. C. A. 218n, 6 N. C. C. A. 76n, 93n, 230n. 23. Missouri, K, & T. Ey. Co. v. Freeman, — Tex. — , 5 N, C. C. A. 583n, 584n, 168 S. W. 69. 24. Caiter v. Kansas City S. Ey. Co., — Tex. Civ. App. — , 4 N. C. C. A. 634n, 155 S. W. 638. ASSUMPTION OF RISK 207 returning, came in contact with an electric wire attached to an overhead hridge. He was instantly killed by the electric current. This wire was sus- pended over the center line of the tracks upon which the train was traveling and was used for the opera- tion of trains by electricity. Passenger trains had been operated on this road for several years by elec- tricity. The method for electrical operation was that known as the overhead system. The equipment required for this method consisted in part of steel structures by the side of and across the tracks for the support of wires running along the center lines of the rails. These wires were suspended at standard height, which was 221/2 feet above the level of the top of the rails, but where there were overhead bridges it was necessary to depress them at those places. The court held, in an action under the fed- eral act, for the death of the engineer, that the de- cedent assumed the risk and that there could be no recovery. 2^ In so holding that the decedent had as- sumed the risk, the court said: "As bearing upon the question of the intestate's assumption of the risk which caused his death, the pertinent facts lie out- side of the realm of dispute or uncertainty. They show that Bottomley had full knowledge of all the physical factors in the situation. As an engineer, he was familiar with engines and tenders and their proportions. The engine he was driving was one of moderate size, and of a type long in use. Its tender, whether of the large or smaller size, was one in use 25. Farley v. New York, N. H. & H. E. Co., 87 Conn. 328, 6 N. C. C. A. 444n, 445n, 448n, 4o2n. 208 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS with tliis type of engine. It was neither special nor unusual. In his years of experience, for the most part confined to this section of the road, and his recent months of frequent service upon it, as engi- neer, he must have become acquainted with the ex- istence of the many overhead bridges which here span the tracks, with the narrow space between bridges and tops of engine and tender, and with the manner in which the electric service wires were strung in carrying them under the bridges. These conditions were apparent to casual observation; they had remained unchanged for years; and they were closely related to the performance of his duties. He must also have known that these wires were elec- trically charged for the operation of trains. As a locomotive engineer of experience living in this age of the world, he, untold and unwarned, must have been sufficiently intelligent and informed to know of the latent danger which lurked in the wires so charged to one who should come into contact with them or into their immediate vicinity, and of the extremity of that danger. But that matter aside, the knowledge of the danger had been so directly and forcibly brought home to him through the no- tices and warnings, given to him by the defendant that he could not have failed both to know the danger to his life that there would be in permitting himself to come into contact with or near to one of the wires, and to comprehend the character and extent of that danger. This being so, he certainly knew and com- prehended the risk incident to his employment. No one could be expected to have better knowledge or ASSUMPTION OF RISK 209 a more adequate appreciation. Possessed of this knowledge and appreciation, lie had for years chosen to continue in his employment. By so doing he as- sumed its risk, which, during these years, had re- mained unchanged, and been unenhanced by any new act of the defendant which could by possibility be imputed to it as negligence." A railroad special agent stepped in between two cars of a train in a terminal yard without the knowl- edge of the trainmen in charge of the train. The court held that he assumed the risk of an injury from the movement of the train.^*^ An engineer who knew that the gauge of the water glass on his engine was missing and with such knowledge continued to work without complaint was held to have assumed the risk.^^ A section laborer was engaged in remov- ing 60 pound rails and substituting 100 pound raUs on a switch track. The heavy rails had been depos- ited near the tracks a few days before the injuiy. One of these rails was carried to the track and laid down. The second rail was then carried to the tracks. A foreman was in charge of the work and the plaintiff was a member of the crew. When the crew reached the track some one of the crew gave the signal to throw the rail. When the rail was thrown, it rebounded and struck and injured plain- tiff. There was some evidence to the effect that the rail brace which was used for the purpose of keeping 26. Helm v. Cinciimati, N. O. & T. P. Ey, Co., 156 Ky. 240, 6 N. C. C. A. 83n, 84n. 27. Seaboard A. L. Ey. Co. v. Horton, 233 U. S. 492, 58 L. Ed. 1062, 6 N. C. C. A. 75n, 95n, 101, 102n. Roberts Liabilities — 14 210 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS the 60 pound rails in position was not moved when the 60 pound rail was taken up and that the heavier rail, when thrown, struck the rail brace and this caused the rail to rebound. There was also evidence that the safer way to handle the rails was by use of rail tongs but it did not appear that such tongs were being used during the time of plaintiff's em- ployment. The usual and customary way of moving the rails from one place to another was that adopted in handling the rail in question. The section crew picked it up with their hands, carried it to the place where it was needed and then, at the word of some member of the crew, dropped it on the ground. The plaintiff knew of the presence of the ties and of the presence of the rail brace. Under these facts the court said: "As the plaintiff's claim does not grow out of a violation of such statute (national safety statutes) the doctrine of assumed risk applies. Un- der that doctrine, the employe assumes those risks which are known to or are clearly observable by him. There was nothing complicated about the char- acter of the work. The operation was simple. The brace and ties were clearly observable by the plain- tiff. It is not insisted that the rail was dropped or thrown in a negligent manner. Being dropped with- out negligence, the danger of being struck by it was one of the risks ordinarily and usually incident to the employment and therefore one which plaintiff assumed. ' ' ^^ Decedent was a boiler maker helper 28. Truesdell v. Chesapeake & O. Ry. Co., 159 Ky. 718. Under quite similar facts, Judge Trimble of the Kansas City Court of Appeals reached the same conclusion of nonliability on other grounds. Neith V. Delano, Eec. of Wabash R. Co., — Mo, App. — , 171 S. W. 1. ASSUMPTION OF RISK 211 and came to liis death in the machine shops of a railroad company. In these shops were a number of tracks and between these tracks were what are known as ''drop pits," nine feet deep and about 16 feet long which were used when large driving wheels were taken off of locomotives. The pit was used so as to avoid the necessity of jacking up the locomotive and so that the driving wheels could be dropped into the pit. There was a cover over about one-third of this pit at either end but no cover over about one-third of it in the center. An engine was not placed over this pit unless the wheels were to be taken off. Decedent had been working the shops for some time and understood the premises per- fectly. The decedent was found at the bottom of the pit under circumstances showing that he fell into it, his head having struck against the concrete bottom and this caused his death. The accident occurred after dark. There were lights in the shop but the proof tended to show that these lights did not shine upon the drop pit and did not sufficiently illuminate it. There were no barriers around the pit and no cover over one-third of it. The drop pit was only a few feet from where the decedent had been working all day and he knew where it was. On these facts the trial court sustained a demurrer to the evidence on the ground of assumption of risk in a suit under the Federal Employers' Liability Act and the court's action was sustained by the court of appeals.^^ A railroad employe who worked 54 out of 57 hours for an interstate railroad company in assisting to water 29. Glenn v. Cincninati, N. O. & T. P. Ey. Co., 157 Ky. 453. 212 INJURIES TO INTEESTATE EMPLOYES ON RAILROADS and feed cattle in transit unloaded for feed, rest and water, assumed the risk of injury due to a fall from a switch engine claimed to have been caused by his exhausted condition, as he knew better than anyone else his condition as to whether he was tak- ing any risks in continuing to work under such cir- cumstances.^" § 106. Defense of Assumption of Risk Must Be Pleaded to Be Available. — Unless from all the evi- dence introduced by the plaintiff in an action under the federal act, the court can conclude as a matter of law that the plaintiff assumed the risk, the defense of assumption of risk is not available to a defendant in an action under the statute unless pleaded in the answer.^^ In the Vickery case, cited in the notes, defendant insisted that the plaintiff had assumed the risk of a switch stand being erected too close to a railroad track without a warning light. To this contention the court said: "The risk here com- plained of arose, as alleged, from the negligent erec- tion of a switch stand in dangerous proximity to one of the tracks in the railroad yard and the negligent failure to have a warning light upon it. This was not a risk ordinarily incident to the railroad service in which the plaintiff as a brakeman was employed but one arising from the defendant's negligence. The plaintiff may have known of it and have volun- tarily assumed it but he did not do so by entering 30. Schweig v. Chicago, M. & St. P. E. Co, (C, C. A.), 216 Fed. 750, aff 'g same case reported in 205 Fed. 96, 3L Vickery v. New Loudon N. E. Co., 87 Conn. 634, 4 N. C, C, A, 218n, 6 N. C. C. A. 76n, 93n, 230n; Uoyd v. Southern Ey, Co., — N. C. — , 6 N. C. C. A. 190n, 81 S. E. 1003. ASSUMPTION OF RISK 213 into his emplojnnent. K such was the fact, it was incumbent upon the defendant to plead and prove. ' ' § 107. Confusing Assumption of Risk with Con- tributory Negligence in Jury Instructions Under Federal Act. — The Supreme Court of Appeals of Virginia in an opinion handed down in March, 1914,^^ analyzed and reviewed many decisions of the national and state courts discussing and applying the doctrine of assumption of risk under the federal act.^^ In the Jacobs case the question before the court was whether a railroad brakeman assumed the risk of injury from a pile of cinders negligently per- mitted to accumulate alongside of the track in a railroad yard which the jury found, under the instructions of the court, constituted a defect or insufficiency due to the negligence of the com- pany. Over the objections of the railroad com- pany, on the question of assumption of risk, the court instructed the jury as follows: "The court further instructs the jury that knowledge by the plaintiff of the unsafe condition of the said road- 32. Southern Ey. Co. v. Jacobs, — Va. — , 6 N. C. C. A. 94n, I8611, 81 S. E. 99. 33. The cases cited, analyzed and discussed, were the following: Seaboard A. L. Ry. Co. v. Moore, 228 U. S. 443, 57 L. Ed. 907, 3 N. C. C. A. 812; Gulf, C. & S. F. Ry. Co. v. McGinnis, 228 U. S. 173, 57 L. Ed. 785, 3 N. C. C. A. 806, 4 N". C. C. A. 926n; Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1, 56 L. Ed. 327, 1 N. C. C. A. 875, 38 L. R. A. (N. S.) 44; Central V. Ry. Co. v. Bethune, 124 C. C. A. 528, 206 Fed. 868; Barker v. Kansas City M. & O. Ry. Co., 88 Kan. 767, 43 L. R. A. (N. S.) 1121; Freeman v. Powell, — Tex. Civ. App. — , 144 S. W. 1033; Choctaw & G. Ry. Co. v. McDade, 191 U. S. 64, 48 L. Ed. 96; Schlemmer v. Buffalo R. & P. Ry. Co., 205 U. S. 1, 51 L. Ed. 681, 1 N. C. C. A. 859n, 4 N. C. C. A. 483n, rev'g 207 Pa. 198; Texas & P. E. Co. v. Archibald, 170 U. S. 665, 42 L. Ed. 1188, 214 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS way is of itself no defense to an action for an injury caused to him thereby. Such knowledge, however, if the jury believe from the evidence that he had such knowledge, may be considered by the jury along with all the evidence in the case in determining whether the plaintiff was himself guilty of negli- gence which contributed to produce the injury men- tioned in the declaration, but the fact that the plaintiff may himself have been guilty of contribu- tory negligence was not a bar to a recovery, but the damages shall be diminished in proportion to the amount of contributory negligence, if such there were, which they may believe from the evidence was attributable to said plaintiff under the circum- stances." The defendant on the other hand requested the court to instruct the jury as follows which request was denied by the trial court: "A. The court in- structs the jury that if they believe from the evi- dence that the existence of the cinder pile was known to the plaintiff or that he had been working on the Southern Kailway at Lawrenceville for more than a year, and that the cinders had been piled at the same place in the way described by the witness for many years prior to the accident, and that the plaintiff had failed to show that he had made complaint or objection on account of the cinder pile, then he as- sumed the risk of danger from the cinder pile, if there was any danger in it, and the Act of Congress approved April 22, 1908, permits this defense, and the jury should find their verdict for the defendant. ' ' The court held that, under the facts, the defend- ASSUMPTION OF RISK 215 ant's refused instruction should have been given and that it was error to give plaintiff's second in- struction for the reason that under the federal stat- ute assumption of risk is an absolute defense as at common law, the court holding that an employe as- sumes the risk of injury from defective appliances furnished by his employer only when the defect is known to, or plainly observable by, the employe. Reviewing the cases cited in the preceding note, the court said: "The cases might be multiplied to any extent to show that the doctrine of assumed risks covers more than those risks which are ordinarily incident to the business, and embraces the use of defective appliances and work of almost every de- scription where the employe, with knowledge of the defect, continues to use it without notice to the em- ployer. ' ' § 108. Assumption of Risk Eliminated in Actions for Violation of Hours of Service Act. — In any action under the federal act for an injury to an employe within its terms if the injury or death is caused by a violation of the Federal Hours of Service Act ^^ as- sumption of risk is not a defense to the action.^^ 34. Hours of Service Act, March 4, 1907 c. 2939, 34 Stat. 1415. 35. Schweig v. Chicago, M, & St. P. E. Co. (C. C. A.), 216 Fed. 750, aff'g same case reported hx 205 Fed. 96. CHAPTER VII CONTRIBUTORY NEGLIGENCE UNDER FED- ERAL ACT § 109. The Statutory Provision. § 110. Eight of Eecovery Under Federal Act Not Barred by Con- tributory Negligence. § 111. When Contributory Negligence of Employe Does Not Diminish Damages — Federal Safety Appliance Act. § 112. Contributory Negligence Defined. § 113. How Damages Apportioned When Employe Is Guilty of Con- tributory Negligence. § 114. Apportionment of Damages Under Federal Act Different from Georgia Statute. §115. Employe's Contributory Negligence to Keduce Damages Must Proximately Contribute to Injury. § 116. Gross Negligence of Plaintiff and Slight Negligence of Defend- ant Cannot Defeat Eecovery. § 117. When Defendant's Act Is No Part of Causation, Plaintiff Can- not Eecover. § 118. Erroneous Instructions on Contributory Negligence Under the Federal Act. § 119. Whether Contributory Negligence Must Be Pleaded, De termined by State Law. § 109. The Statutory Provision.— Section 3 of the Federal Employers' Liability Act provides: ^'That in all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employe, or where such injuries have resulted in his death, the fact that the employe may have been guilty of contributory neg- ligence shall not bar a recovery, but the damages 216 CONTRLBUTOEY NEGLIGENCE 217 shall be diminished by the jury in proportion to the amount of negligence attributable to such employe: Provided, That no such employe who may be injured or killed shall be held to have been guilty of con- tributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe." § 110. Right of Recovery Under Federal Act Not Barred by Contributory Negligence. — When an em- ploye of a common carrier by railroad is injured or killed under the conditions prescribed in the federal act, that is, while the carrier is engaged and while the servant is employed by it in interstate commerce, in any action for damages for such injuries due to negligence, the right to recover cannot be defeated by showing or proving that the employe's negli- gence contributed in any degree to his injuries. In this respect the statute is a radical departure from the common law doctrine. In all actions under the federal act the employe's contributory negligence merely diminishes the amount of his damages except in cases mentioned in the next section.^ 1. Pennsylvania E. Co. v. Cole (C. C. A.), 214 Fed. 948; Louis- ville & N. K. Co. V. Heinig, — Ky. — , 171 S. W. 853 ; Grand T. W. R. Co. V. Lindsay, 233 U. S. 42, 58 L. Ed. 838, 6 N. C. C. A. 90, 91n, Ann. Cas. 1914 C 168n; Norfolk & W. R. Co. v. Earnest, 229 U. S. 114, 57 L. Ed. 1096, 3 N. C. C. A. 806, Ann, Cas. 1914 C 172n; Southern Ey. Co. v. Smith (C. C. A.), 214 Ted. 942; Charleston & W. C. R. Co. V. Brown, 13 Ga. App. 744; Louisville & N. R. Co. v. Weue (C. C. A.), 202 Fed, 887; McDonald v. Railway T. Co., 121 Minn, 273; Atchison, T. & S. F. E. Co. v. Tack, — Tex. Civ. App. — , 130 S. W. 596; Colasurdo v. Central R, Co, of New Jersey, 180 Fed. 832, afe'd in 113 C. C, A, 379, 192 Fed. 901; Missouri, K. & T. E. Co. V. Bunkley, — Tex. Civ. App. — , 5 N. C. C. A. 583n, 153 S. W. 218 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS § 111. When Contributory Negligence of Employe Does Not Dimmish Damages — Federal Safety Appli- ance Act. — Even though an employe injured or killed while engaged in interstate commerce was guilty of contributory negligence, his damages can- not be reduced when the violation of a federal stat- ute enacted for the safety of employes, such, for instance, as the Federal Safety Appliance Act, con- tributed as a cause to the injury or death.^ The clause "statute enacted for the safety of employes" in § 3 of the Federal Employers ' Liability Act refers only to federal statutes and not to state laws.^ / § 112. Contributory Negligence Defined. — Con- tributory negligence under the Federal Employers' Liability Act has been defined by the United States Supreme Court in the following language: "Con- tributory negligence involves the notion of some fault or breach of duty on the part of the employe, 937; Neil v. Idaho & W. N. E. Co., 22 Idaho 74; Fogerty v. Northern P. B. Co., — Wash. — , 133 Pac. 609; rieming v. Norfolk S. Ey. Co., 160 N. C. 196, 6 N. C. C. A. 78ii, 229n; Southern Ey. Co. v. Hill, 139 Ga. 549; Ellis v. Louisville, H. & St. L. Ey. Co., 155 Ky. 745, 6 N. C. C. A. 103n, 543n; Nashville, C. & St. L. Ey. Co. v. Henry, 158 Ky. 88, 4 N. C. C. A. 495n, 6 N. C. C. A. 99n, 106n; Nashville, C. & St. L. Ey. Co. v. Banks, 156 Ky. 609, 6 N. C. C. A. 99n, 105n, 186n; Pankey v. Atchison, T. & S. F. Ey. Co., 180 Mo. App. 185; Cain V. Southern Ey. Co., 199 Fed. 211; Pfeiffer v. Oregon W. E. & N. Co., — Ore. — , 7 N. C. C. A. 685, 144 Pac. 762; Eoss v. St. Louis & S. F. Ey. Co., — Kan. — , 144 Pac. 844; Tilgham v. Seaboard A. L. Ey. Co., — N. C. — , 83 S. E. 315, 2. Southern Ey. Co. v. Crockett, 234 U. S. 725, 58 L. Ed. 1564, 6 N. C. C. A. 94n; Grand T. W. Ey. Co. v. Lindsay, 233 U. S. 42, 58 L. Ed. 838, 6 N. C. C. A. 90, 91n, Ann. Cas. 1914 C 168n; Norfolk & W. E. Co. v. Earnest, 229 U. S. 114, 57 L. Ed. 1096, 3 N. C. C. A. 806, Ann. Cas. 1914 C 172n. 3. Seaboard A. L. Ey. Co. v. Horton, 233 U. S. 492, 58 L. Ed. 1062, 6 N. C. C. A. 75n, 95n, 101, 102n. CONTRIBUTORY NEGLIGENCE 219 and since it is ordinarily his duty to take some pre- caution for his own safety when engaged in a haz- ardous occupation, contributory negligence is some- times defined as a failure to use such care for his safety as ordinarily prudent employes in similar cir- cumstances would use. " ^ In another case before the Supreme Court of the United States the follow- ing definition of contributory negligence was ap- proved: "Contributory negligence is the negligent act of a plaintiff which, concurring and cooperating with the negligent act of a defendant, is the proxi- mate cause of the injury. ' ' ^ § 113. How Damages Apportioned When Employe • / Is Guilty of Contributory Negligence. — Where the negligence which caused the injury or death of an employe is partly attributable to the employe him- self and partly attributable to the carrier, the plain- tiff cannot recover full damages but only such a proportional amount bearing the same relation to the full amount as the negligence attributable to the carrier bears to the entire negligence attributable to both.*^ Justice Vandevanter, speaking for the Su- preme Court in the case cited, said : ' ' Tlie statutory direction that the diminution shall be ' in proportion to the amount of negligence attributable to such employe' means that, where the causal negligence is partly attributable to him and partly to the car- 4. Seaboard A. L. Ey. Co. v. Horton, 233 U. S. 492, 58 L. Ed. 1062, 6 N. C. C. A. 75n, 95ii, 101, lG2n. 5. Norfolk & W. E. Co. v. Earnest, 229 U. S. 114, 57 L. Ed. 1096, 3 N. C. C. A. 806, Ann. Gas. 1914 C 172n. 6. Norfolk & W. Ey. Co. v. Earnest, 229 U. S. 114, 57 L. Ed. 1096, 3 N. C. C. A. 806, Ann. Cas. 1914 C 172n. 220 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS rier, lie shall not recover full damages, but only a proportional amount bearing the same relation to the full amount as the negligence attributable to the carrier bears to the entire negligence attributable to both; the purpose being to abrogate the common law rule completely exonerating the carrier from liability in such cases and to substitute a new rule, confining the exoneration to a proportional part of the damages, corresponding to the amount of negli- gence attributable to the employe." § 114. Apportionment of Damages Under Federal Act Different from Georgia Statute. — Even prior to the passage of the Federal Employers ' Liability Act, a few states had by statutory enactment adopted the doctrine of comparative negligence as distinguished from contributory negligence. The Georgia statute respecting the apportionment of damages has been construed to mean that where the injury is the result of mutual negligence there can be no recovery unless the person inflicting the injury is more in fault than the one who is injured. But such rule is not to be applied in the apportionment of damages under the federal act for if the carrier's negligence caused the injury in part, the contributory negligence of the employe does not defeat the action no matter if the carrier is less in fault than the employe.''^ § 115. Employe's Contributory Negligence to Re- duce Damages Must Proximately Contribute to In- jury. — The damages recoverable by an employe for injuries due to the negligence of a common carrier cannot be reduced by reason of any slight negligence 7. Southern Ey. Co. v. Hill, 139 Ga. 549. CONTRIBUTORY NEGLIGENCE 221 on the part of the employe. Before the damages can be reduced the contributory negligence of the employe must directly and proximately contribute to the injury. In other words, the negligence of the employe in order to reduce the damages, must be causal.^ §116. Gross Negligence of Plaintiff and Slight l^ Negligence of Defendant Cannot Defeat Recovery.— Under the federal act if the carrier is negligent in any degree and such negligence contributes as a proximate cause to the injury, plaintiff's right to recover cannot be defeated although his negligence might have been gross and the negligence of the de- fendant comparable therewith slight.^ And a de- murrer to the evidence or a nonsuit cannot in any case under the federal act be given or sustained on the ground of plaintiff's contributory negligence. ^'^ Judge Knappen, speaking for the Federal Circuit Court of Appeals in Pennsylvania Co. v. Cole, cited supra, said: "But the Employers' Liability Act ex- pressly abrogates the common law rule under which action was barred by the negligence of the plaintiff proximately contributing to the accident and sub- 8. lUinois C. E. Co. v. Porter, 207 Fed. 311, 6 N. C. C. A. 98n, 205n. 9. New York, C. & St. L. R. Co. v. Niebel (C. C. A.), 214 Fed. 952; Pennsylvania Co. v. Cole (C. C. A.), 214 Fed. 948; LouisvUle & N. E. Co. V. Heinig, — Ky. — , 171 S. W. 853; Philadelphia, B. & W. E. Co. V. Tucker, 35 App. Cas. (D. C.) 123, 1 N. C. C. A. 841n; Louisville & N. Ey. Co. v. Lankford, 126 C. C. A. 247, 209 Fed. 321, 6 N. C. C. A. 86ii, 106n. 10. Sandidge v. Atchison, T. & S. F. Ey. Co., 113 C. C. A. 653, 193 Fed. 867; Horton v. Seaboard A. L. Co., 157 N. C, 146; Louisville & N. Ey. Co. V. Wene, 121 C. C. A. 245, 202 Fed. 887. 222 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS stitntes therefor the rule of comparative negligence. Under this act, no degree of negligence on the part of the plaintiff, however gross or proximate, can, as a matter of law, bar recovery. ' ' § 117. When Defendant's Act Is No Part of Causa- tion, Plaintiff Cannot Recover. — On the other hand if the plaintiff's act is the sole cause of his injury without any act on the part of the defendant con- tributing as a part of the causation, there can be no recovery under the federal act.^^ Whether under the facts of a particular case the plaintiff's negli- gence was the sole cause of his injury or whether the negligence of the defendant contributed as a part of the causation has already been raised in cases under the federal act and it is frequently a difficult question to solve. Such questions will no doubt arise in the future in other cases for the reason that if the plaintiff's negligence was the sole cause of his injury there can be no recovery but if the defendant's neg- ligence contributes as a proximate cause, the plain- tiff can recover no matter how gross his negligence may be. In two cases, Pankey v. Railroad and Ellis V. Eailroad, cited supra, the courts denied a recovery under the federal act for the reason that under the facts the plaintiff's act was the sole cause of his injury. On the other hand courts have denied the application of the same principle under the facts and 11. Grand T. Ey. Co. v. Lindsay, 233 U. S. 42, 58 L. Ed. 838, G N. C. C. A. 90, 91n, Ann. Cas. 1914 168n; Pankey v. Atchison, T. & S. F. Ey. Co., 180 Mo. App. 185 ; Ellis v. Louisville, H. & St. L. Ey. Co., 155 Ky. 745, 6 N. C. C. A. 103n, 543n; Pfeiffer v. Oregon, W. E. & N. Co., — Ore. — , 7 N. C. C. A. 685, 144 Pac. 762. CONTRIBUTORY NEGLIGENCE 223 held the defendant's act was a part of the causa- tion.i2 § 118. Erroneous Instructions on Contributory Neg'ligence Under the Federal Act. — In an action under the federal act, a trial court instructed the jury as to the effect of contributory negligence as follows: ''Contributory negligence is the negligent act of a plaintiff which, concurring and co-operating with the negligent act of a defendant, is the proximate cause of the injury. If you should find that the plaintiff was guilty of contributory negligence, the act of Congress under which this suit was brought provides that such contributory negligence is not to defeat a recovery altogether, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe. So, if you reach that point in your deliberations where you find it necessary to consider the defense of contributory negligence, the negligence of the plaintiff' is not a bar to a recovery, but it goes by way of diminution of damages in proportion to his negli- gence, as compared with the negligence of the de- fendant. If the defendant relies upon the defense of contributory negligence, the burden is upon it to establish that defense by a preponderance of the evidence." The phrase in the quoted instruction, "as compared with the negligence of the defendant" 12. Pennsylvania Co. v. Cole (C. C. A.), 214 Fed. 948; New York, C. & St. L. E. Co. V. Niebel (C. C. A.), 214 Fed. 952; Louisville & N. R. Co. V. Heinig, — Ky. — , 171 S. W. 853; Koss v. St. Louis & S. F. Ry. Co., — Kan. — , 144 Pac. 844; Spokane & I. E. R. Co. v. Campbell, 217 Fed. (C. C. A.) 518. 224 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS was condemned by the Supreme Court of the United States as being improper under the federal act.^^ Concerning this instruction Mr. Justice Vandevan- ter, speaking for the court, said: "The other crit- icism deserves more discussion. The thought which the instruction expressed and made plain was that, if the plaintiff had contributed to his injury by his own negligence, the diminution in the damages should be in proportion to the amount of his negli- gence. This was twice said, each time in terms read- ily understood. But for the use in the second in- stance of the additional words 'as compared with the negligence of the defendant' there would be no room for criticism. Those words were not happily chosen, for to have reflected what the statute con- templates they should have read 'as compared with the combined negligence of himself and the defend- ant. ' We say this because the statutory direction that the diminution shall be 'in proportion to the amount of negligence attributable to such employe' means, and can only mean, that, where the causal negligence is partly attributable to him and partly to the carrier, he shall not recover full damages, but only a proportional amount, bearing the same rela- tion to the full amount as the negligence attributa- ble to the carrier bears to the entire negligence attributable to both; the purpose being to abrogate the common law rule completely exonerating the carrier from liability in such a case, and to substi- tute a new rule, confining the exoneration to a pro- is. Norfolk & W. Ey. Co. v. Earnest, 229 U. S. 114, 57 L. Ed. 1096, 3 N. C. C. A. 806, Am. Cas. 1914 C 172n. CONTRIBUTORY NEGLIGENCE 225 portional part of the damages, corresponding to the amount of negligence attributable to the employe. Second Employers' Liability Cases (Mondou v. New York, N. H. & H. E. Co.), 223 U. S. 1, 50, 56 L. Ed. .327, 346 (1 N. C. C. A. 875), 38 L. R. A. (N. S.) 44, 32 Sup. Ct. Rep. 169." An instruction that if the employe was guilty of negligence which contributed to his injuries, the jury must diminish the damages in proportion to the amount of negligence attributable to him, was held erroneous for the same reason.^^ In another action under the federal act the court instructed the jury that, if the deceased was guilty of contributory neg- ligence, and "that said negligence directly contrib- uted to his injurj^, you should take said negligence into consideration in arriving at the amount of your verdict as hei-einafter explained, if you find from the evidence that the plaintiff is entitled to recover, but if you find from the evidence that the contribu- tory negligence of the deceased. Otto N. Ross, was the sole and proximate cause of his death, then you should find a verdict for the defendant. ' ' A verdict was returned for the defendant and the trial court set it aside because the instruction was erroneous in the latter part as to contributory negligence. The appellate court held that the plaintiff had a right to a plain and unambiguous instruction to the effect that contributory negligence was not a complete defense under the federal statute referred to, but should be considered in mitigation of damages; and 14. Nashville, C. & St. L. E. Co. v. Banks, 156 Ky. 609, 6 N. C. C. A. 99n, 105n, 186n. Koberts Liabilitici — 15 226 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS that, as the language used was doubtful in meaning and confusing, and the trial judge believed that the instruction did not sufficiently inform the jury, the order granting a new trial was not reversed. ^^ § 119. Whether Contributory Negligence Must Be Pleaded, Determined by State Law. — The question whether contributory negligence of the injured em- ploye in order to be available to the defendant must be pleaded is to be determined by the laws of the state where the action is pending for such a matter relates to procedure and the laws of the state govern as to procedure even in actions under the Federal Employers' Liability Act. The general rule is that unless the plaintiff's contributory negligence ap- pears as a matter of law by his proof the plea of con- tributory negligence must be specially pleaded; though a few courts hold to the contrary ; but as con- tributory negligence under the federal act only miti- gates the damages it is at least questionable whether it must be specially pleaded for the general rule is, unless otherwise provided by statute, matters in diminution of damages need not be specially pleaded. Such was the rule at common law.^^ A statute of North Carolina provides that ''in all actions to re- cover damages by reason of defendant's negligence, where contributory negligence is relied on as a de- fense, it shall be set up in the answer and proved at the trial," Another section of the statutory law 15. Ross V. St. Louis & S. F. By. Co., — Kan. — , 144 Pac. 844. 16. Greeneleaf on Evidence (14th Ed.) 393; Beck v. DoweU, 40 Mo. App. 71; Smith v. Lisher, 23 Ind. 502; Osborn v. Lovell, 36 Mich. 250; Delevan v. Bates, 1 Mich. 97; Blizzard v. Applegate, 61 Ind. 368; Atteberry v. Powell, 29 Mo. 429, 77 Am. Dec. 579. CONTRIBUTORY NEGLIGENCE 227 of the same state provided generally that matters in diminution of damages need not be specially pleaded. In an action by an employe against a com- mon carrier for injuries under the Federal Employ- ers' Liability Act, it was held by the supreme court of that state that the defendant could not avail it- self of the partial defense of contributory negli- gence unless the same was pleaded in its answer. The court properly held that the specific statute men- tioned controlled in preference to the general statute as to matters in mitigation.^^ 17. Fleming v. Norfolk S. Ey. Co., 160 N. C. 196, 6 N. C. C. A. 78ii, 229n. CHAPTER VIII CONTEACTS FOKBIDDEN BY FEDERAL ACT § 120. The Statutory Provision. § 121. Statute Prohibiting Carriers from Evading Liability by Con- tracts or Regulations, Valid. § 122. Statute Applies to Existing as Well as Future Contracts. § 123. Acceptance of Benefits from Employer No Bar to Suit Against Joint Tort-feasor. § 120. The Statutory Provision. — Section 5 of the Federal Employers' Liability Act provides: "That any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act, shall to that extent be void; Provided, That in any action brought against any such common carrier under or by virtue of any of the provisions of this act, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employe or the person entitled thereto on account of the injury or death for which said action was brought. ' ' § 121. Statute Prohibiting Carriers from Evading Liability by Contracts or Regulations, Valid. — The question of the validity of the contract provision quoted in the foregoing paragraph has been finally established by the United States Supreme Court.^ 1. Philadelphia, B. & W. R. Co. v. Schubert, 224 U. S. 603, 56 L. Ed. 911, 1 N. C. C. A. 892, 6 N. C. C. A. 103n; Burnett v. Atlantic 228 CONTRACTS FORBIDDEN BY ACT 229 In the Schubert case the plaintiff was an employe of the defendant. The company pleaded that the plaintiff was at the time a member of its "relief fund" under a contract of membership in which it was agreed that the company should apply as a voluntary contribution from his wages a certain sum a month for the purpose of securing certain benefits and it was also stipulated that the accept- ance of benefits by an employe after injury should constitute a release from all claims for damages. The plaintiff since his injury had voluntarily ac- cepted benefits to the amount of $75.00. A demurrer to this plea was sustained in the trial court. The appellate court held that Congress, in declaring by the statute that such contracts were void, did not exceed its authority and affirmed the cause. § 122. Statute Applies to Existing: as Well as Fu- ture Contracts. — The provisions of § 5 applies to contracts made before the passage of the Federal Employers' Liability Act as well as to contracts en- tered into after the passage of the law.^ In the case cited in the notes it was contended by the railroad company that the statute did not apply to contracts entered into before the statute was enacted and that if the court should take the view that the statute applied to preexisting contracts, that the law was C. L. R. Co., 163 N. C. 186, 6 N. C. C. A. 103, 104n; Baltimore & O. R. Co. V. Gawinske, 116 C. C. A. 579, 197 Fed. 31; Chicago, B. & Q. E. Co. V. McGuire, 219 U. S. 549, 55 L. Ed. 328, construing a similar provision of the statute of Iowa; Hogarty v. Philadelphia R. Ry. Co., 245 Pa. 443. 2. PhUadelphia, B. & W. R. Co. v. Schubert, 224 U. S. 603, 56 L. Ed. 911, 1 N. C. C. A. 892, 6 N. C. C. A. 103n. 230 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS invalid and unconstitutional. To this contention Justice Hughes, speaking for the Supreme Court, said : ' ' Nor can the further contention be sustained that, if so construed, the section is invalid. The power of Congress, in its regulation of interstate commerce, and of commerce in the District of Co- lumbia and in the territories, to impose this liability, was not fettered by the necessity of maintaining ex- isting arrangements and stipulations which would conflict with the execution of its policy. To subor- dinate the exercise of the federal authority to the continuing operation of previous contracts, would be to place, to this extent, the regulation of inter- state commerce in the hands of private individuals and to withdraw from the control of Congress so much of the field as they might choose by prophetic discernment to bring within the range of their agree- ments. The Constitution recognizes no such limita- tion. It is of the essence of the delegated power of regulation that, within its sphere. Congress should be able to establish uniform rules, immediately ob- ligatory, which as to future action should transcend all inconsistent provisions. Prior arrangements were necessarily subject to this paramount author- ity." ^ § 123. Acceptance of Benefits from Employer No Bar to Suit Against Joint Tort-Feasor. — Although 3. In reaching this conclusion the court cited and quoted from the following cases: Louisville & N. E. Co. v. Mottley, 219 U. S, 467, 55 L. Ed. 297, 34 L. R. A. (N. S.) 671; Addyston Pipe & Steel Co. V. United States, 175 U. S. 211, 228, 44 L. Ed. 136; Armour Packing Co. V. United States, 209 U. S. 56, 52 L. Ed. 681 ; Atlantic C, L. E. Co. V. Riverside Mills, 219 U. S. 186, 55 L. Ed. 167, 31 L. R. A. (N. S.) 7n. CONTRACTS FORBIDDEN BY ACT 231 under the laws of a state, contracts between rail- road companies and their employes which provide that if an employe accept benefits from a relief fund after receiving an injury, are deemed valid, yet, if such carrier and the employe were at the time of his injuries engaged in interstate commerce, the accept- ance of benefit is not a bar in an action against a joint tort-feasor.^ In the case cited the plaintiff was injured while working on his employer's cars which were being moved over another company's tracks, the latter being the owner and the former the li- censee. The actionable negligence was permitting a semaphore post to be placed too close to the track. The plaintiff accepted his relief benefits from the company which employed him and sued the other company. The other company set up as a defense that he had accepted the benefits under his contract and that having therefore released one tort-feasor, the other was not liable. But the Supreme Court of Illinois held that since the federal act provided that such contracts were no longer a defense when the company was engaged in and the injured servant employed in interstate commerce, that such defense although valid under the laws of the state, could not inure to the benefit of the joint tort-feasor. 4. Wagner v. Chicago & A. E. Co., — lU. — , 106 N. E. 809, (Cartwright and Dunn, JJ., dissenting.) CHAPTER IX JUEISDICTION OF STATE AND FEDERAL COURTS § 124. Suits May Be Brought in Federal Courts. § 125. Actions May Also Be Brought in State Courts Under Fed- eral Act. § 126. Causes Instituted in State Courts Not Eemovable to Federal Courts. § 127. EemovabUity When Petition States Cause of Action Under State Law ia One Count and Under Federal Law in Another Count. § 128. Action Eemovable When Petition Does Not State Cause of Action Under Federal Act Although Intended to Be Under that Statute. § 129. Statute of Limitation. § 130. Judgment of Highest State Court in Action Under Federal Act May Be Eeviewed by United States Supreme Court, When, § 131. Eecord Must Show Eight Under Federal Laws Was Specifically Set Up and Denied by State Court. § 132. Contention That There Is or Is Not Sufficient Evidence to Show Liability, Will Support Writ of Error. § 133. Power to Eeview Does Not Extend to Questions Merely Inci- dental and Non-federal in Character. § 134. Euling of State Court that Federal Question Was Sufficiently Eaised Binding Upon United States Supreme Court. § 135. Federal Questions to Support Writ of Error to United States Supreme Court, Need Not Be Eaised by the Pleadings. § 136. Pleading Federal Act and Submitting Case to Jury Under State Law, No Denial of Federal Eight. § 137. When Petition Not Stating a Good Cause of Action Under Federal Act Eaises a Federal Question. § 138. Claim that Verdict Is Excessive Not Eeviewable by Writ of En-or. § 124. Siiits May Be Brought in Federal Courts.— One of the 1910 amendments to the Federal Employ- 232 JURISDICTION OP COURTS 233 ers' Liability Law, now § 6 of the act, provides that an action may be brought under the act in a circuit court of the United States in the district of the resi- dence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. § 125. Actions May Also Be Brought in State Courts Under Federal Act. — One of the amendments of 1910 to the federal act further provides that the jurisdiction of the courts of the United States under the act shall be concurrent with that of the courts of the several states, and no case arising under the act and brought in any state court of competent jurisdiction, shall be removed to any court of the United States. Prior to the passage of the 1910 amendment the Supreme Court of Connecticut had held that state courts had no jurisdiction of actions under the Federal Employers' Liability Act.^ But when this case reached the Supreme Court of the United States that court held that state courts had jurisdiction of actions under the federal act even before the amendment of 1910 and the decision of the state court was overruled. ^ § 126. Causes Instituted in State Courts Not Re- movable to Federal Courts. — Although the statute, in the amendment of 1910 plainly declares that no case arising under the federal act and brought in a state court of competent jurisdiction shall be remov- able to the federal courts, yet many attempts have 1. Hoxie V. New York, N. H. & H. K. Co., 82 Conn. 352, 17 Ann. Cas. 324. 2. Second Employers' Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 1 N. C. C. A. 875, 38 L. R. A. (N. S.) 44. 234 INJUBEES TO INTERSTATE EMPLOYES ON RAILROADS been made to remove such cases without, however, any success. Courts have declared that the right of removal from a state court by a foreign citizen is a right which may be taken away by Congress or given to a litigant. A cause under the federal act filed since the amendment of 1910 is not removable because of diversity of citizenship or any other ground.^ § 127. Removability When Petition States Cause of Action Under State Law in One Count and Under Federal Law in Another Count. — A question of some difficulty has presented itself to the courts in deter- mining whether a cause is removable in which the plaintiff has plead a cause of action under the state law in one count and under the federal act in an- other, the other jurisdictional grounds, such as di- versity of citizenship, being present in the case. It was held by a federal district court in New York that although the facts pleaded in the petition showed a cause of action under the federal act and also under the state law, it was, nevertheless, a case arising under the Federal Employers' Liability Act and was not removable from the state courts not- withstanding the existence of diversity of citizen- 3. Pankey v, Atchison, T. & S. F. Ry. Co., 180 Mo. App. 185, 6 N. C. C. A. 74; McChesney v. lUinois C. R. Co., 197 Fed. 85; DeAtley v, Chesapeake & O. Ry. Co., 201 Fed. 591; Elansas City S. Ey. Co. V. Cook, 100 Ark. 467; St. Louis & S. F. R. Co. v. Conarty, 106 Ark. 421, 6 N. C. C. A. 202n, 447n; Teel v. Chesapeake & O. Ry. Co., 123 C. C. A. 240, 204 Fed. 918, 6 N. C. C. A. 79n, 47 L. B. A. (N. S.) 21n; Patton v. Cincinnati, N. O. & T. P. Ry., 208 Fed. 29; Eng V. Southern P. Co., 210 Fed. 92, 6 N. C. C. A. 78, 79n, 200n; Missouri, K. & T. R. Co. v. Bunkley, — Tex. Civ. App. — , 5 N. C. C. A. 583n, 153 S. W. 937 ; Kelly v. Chesapeake & O. R. Co., 201 Fed. 602; Hulac v. Chicago & N. W. E, Co., 194 Fed. 747. JURISDICTION OF COURTS 235 ship.* In another case before the same court it was held that since such a petition stated but one cause of action under the decision of the state courts, the cause was not removable.^ The court, however, said : ' ' In short, by pleading facts bringing the case within the federal act, and facts bringing the case within the common-law liability, and facts bringing it within the state statute liability, not necessary to be alleged or proved to make a case under the fed- eral act (and the facts alleged bringing* it within the federal act not being necessary to the cause of action under the common law or state statute), in the state court, the plaintiff may succeed on either one of three theories; that is, he may abandon all pretense that the case is within the federal act and yet succeed. By artful pleading he defeats removal. This question of removal has been up in the follow- ing cases: Van Brimmer v. Texas & P. R. Co. (C. C), 190 Fed. 394 (6 N. C. C. A. 79n) ; Symonds v. St. Louis & S. E. R. Co. (C. C), 192 Fed. 353; Lee v. Toledo, St. L. & W. R. Co. (D. C), 193 Fed. 685; Hulac V. Chicago & N. W. R. Co. (D. C), 194 Fed. 747; McChesney v. 111. Cent. R. Co. (D. C), 197 Fed. 85; Ullrich v. New York, N. H. & H. R. Co. (D. C), 193 Fed. 768. The Ullrich case is nearest in point here, and assumes that three causes of action are pleaded, which under the New York Code seems not to be the case. See later. If, on the trial in the state court, the plaintiff shall abandon the theory that the case arose under the federal act, or shall fail to 4. UUrich V. New York, N. H. & H. E. Co., 193 Fed. 768. 5. Eice V. Boston & M. E. Co., 203 Fed. 580. 236 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS show a case within that act, and that court has power at once to send the case back to the federal court, the rights of the defendant to removal will be pro- tected and preserved." § 128. Action Removable When Petition Does Not State Cause of Action Under Federal Act Although Intended to Be Under That Statute. — An action by an employe against a railroad company, incorpo- rated under the laws of another state, where the other juri-sdictional facts appear, is removable to the proper United States district courts when the petition fails to state a cause of action under the Federal Employers' Liability Act although the plaintiff may have intended to bring his suit under that act.*' In the Thomas case cited, the plaintiff, a resident of Iowa, brought an action in the Iowa courts against an Illinois railroad company engaged in interstate commerce. The petition was in two counts, one stating a cause of action under the laws of the state and the other attempting to state a cause of action under the Federal Employers' Liability Act. It was alleged in the last count that the car- rier was engaged in interstate commerce and that the deceased employe was employed by it in such commerce at the time of his death. There was, how- ever, no allegation that the decedent left surviving him a widow, child, parent or next of kin for whose benefit a right of action survives under the Federal Employers ' Liability Act. The court held that since the petition therefore did not state a cause of action 6. Thomas v. Chicago & N. W. Ey. Co., 202 Fed. 767, 6 N. C. C. A. 439n, 446n. JURISDICTION OF COURTS 237 Tinder the federal act and since the suit was against a non-resident and for a greater sum than $3,000, the cause was removable to the federal court. Judge Reed, in overruling the motion to remand, said: ''It may be that it was intended to allege in this count of the petition a cause of action arising under the Fed- eral Employers ' Liability Act. If so, essential facts are wholly wanting to show such a cause of action; the averment alone that 'the carrier and its employe were engaged in interstate commerce at the time of the injury to and death of the employe' being insuf- ficient to show such a right. If it appeared upon the face of the petition that sufficient facts existed to show a right of action under the federal act, but were inaptly or defectively alleged, such defects could be cured by an amendment, and they might be overlooked. But, when essential facts are wholly wanting, effect must be given to the petition as it is written. ' ' § 129. Statute of Limitation. — It is provided in § 6 of the act that "no action shall be maintained under this act unless commenced within two years from the day the cause of action accrued." This statute of limitation applies to all actions against railroad companies brought by employes for injuries received while employed in interstate commerce and while the carrier was so engaged.^ The Supreme Court of North Carolina has held that the defendant in an action under the federal act, in order to avail itself 7. Shannon v, Boston & M. E. Co., — N. H. — , 92 AtL 167. 238 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS of the benefit of the statute of limitation under that act must plead it.^ § 130. Judgment of Highest State Court in Action Under Federal Act May Be Reviewed by United States Supreme Court, When. — In an action brought under the Federal Employers' Liability Act in the state court where there is a final judgment in the highest court of the state in which a decision in the cause could be had, the Supreme Court of the United States has appellate jurisdiction on a writ of error issued by it to the court of last resort in the state where the validity of the statute is drawn in ques- tion and the decision is against its validity; or where the statute is declared valid by the state court but is claimed by one of the parties to the litigation to be contrary or repugnant to the Constitution of the United States; or where the decision of the state court is against any title, right, privilege or inmiu- nity specially set up or claimed by either party to the action under the Constitution of the United States or some act of Congress. Such questions may be reexamined by the Supreme Court of the United States on writ of error and the writ has the same effect as if the judgment complained of had been rendered by a court of the United States. The Su- preme Court may reverse, modify or affirm the judg- ment or decree of the state court and may, at its dis- cretion, award execution or remand the same to the court from which it was removed by the writ.^ 8. Burnett v. Atlantic C. L. E. Co., 163 N. C. 186, 6 N. C. C. A. 103, 104n. 9. Section 237 of the Judicial Code (Act of ilarcli 3, 1911, c. 231, 36 Stat. 1087, 1156). This code merely re-euacted § 709 B. S. tJ. S., JURISDICTION OF COURTS 239 § 131. Record Must Show Right Under Federal Laws Was Specially Set Up and Denied by State Court. — In order to sustain a writ of error from the Supreme Court of the United States to the highest court of a state in any action under the Federal Em- ployers' Liability Act, it must appear, in order to give the United States Supreme Court jurisdiction, that a right under the Constitution or laws of the United States was specially set up by the plaintiff in error in the state court and denied by the highest court of the state. It must also appear from the record that there was necessarily presented in the state court a definite issue as to the correct construc- tion of the Federal Employers' Liability Act so di- rectly involved that the state court could not have given the judgment it did without deciding the ques- tion against the contention of the plaintiff in error. ^"^ § 132. Contention That There Is or Is Not Suf- ficient Evidence to Show Liability, Will Support Writ of Error. — If at the close of the evidence in an 4 Fed. Stat. Ann. p. 467; Seaboard A. L. Ey. v. Duvall, 225 U. S. 477, 56 L. Ed. 1171; El Paso & N. E. E. Co. v. Gutierrez, 215 U, S. 87, 54 L. Ed. 106 ; Gaar, S. & Co. v. Shannon, 223 U. S. 468, 56 L. Ed. 510; St. Louis, I. M. & S. E. Co. v. Taylor, 210 U. S. 281, 52 L. Ed. 1061; TUt V. Kelsey, 207 U. S. 43, 52 L. Ed. 95; Kansas City S. E. Co. V. C. H. Albers Commission Co., 223 U. S. 573, 56 L. Ed. 556; Chambers v. Baltimore & O. E. Co., 207 U. S. 142, 52 L. Ed. 143; Illinois C. E. Co. v. Kentucky, 218 U. S. 551, 54 L. Ed. 1147; Cincinnati, N. O. & T. P. E. Co. v. Slade, 216 U. S. 78, 54 L. Ed. 390; Chesapeake & O. E. Co. v. McDonald, 214 U. S. 191, 53 L. Ed. 963; Louisville & N. E. Co. v. Melton, 218 U. S. 36, 54 L. Ed. 921, 47 L. E. A. (N. S.) 84n. 10. St. Louis, I. M. & S. E. Co. v. Taylor, 210 U. S. 281, 52 L. Ed. 1061; Seaboard A. L. Ey. v. Duvall, 225 U. S. 477, 56 L. Ed. 1171; Moliter v. Wabash E. Co., — Mo. App. — , 168 S. W. 250, 6 N. C. C. A. 75n, 8 In, 86n, 233n. 240 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS action under the Federal Employers' Liability Act, defendant demurs or moves for directed verdict (the particular form of such motion being governed by the local practice) the action of the court thereon, if duly excepted to, raises a federal question which will support a writ of error from the national Su- preme Court to the highest state court to which the case may be appealed. If the demurrer is sustained the plaintiff may appeal and raise the federal ques- tion whether he has produced evidence tending to show existence of the federal right. If the demurrer is overruled, the defendant may appeal and raise the federal question whether there is any e\ddence tend- ing to show that the defendant is liable within the terms of the statute. The question as to whether there is any evidence tending to prove every element necessary to recover under the act, is a federal question if properly raised. Thus in one case the plaintiff failed to prove that a violation of the national Hours of Service Act, on which recoveiy was based, was the proximate cause of employe's death and because of such failure of proof, the cause was reversed in the national Su- preme Court after an affirmance in the highest state court. ^^ In the McWhirter case cited, the defendant raised the federal question by requesting the court to instruct the jury to find in its favor. The court refused to do so and the defendant excepted. In deciding that such a question would support a writ of error from the highest state court to which the 11. St. Louis, I. M. & S. Ey. Co. v. McWhirter, 229 U. S. 265, 57 L. Ed. 1179, reversing same case reported in 145 Ky. 427. JURISDICTION OF COURTS 241 case was appealable, to the United States Supreme Court, Mr. Justice White said: "While it is true, as we have said, that, coming from a state court, the power to review is controlled by Rev. Stat., § 709, j^et where, in a controversy of a purely federal char- acter, the claim is made and denied that there was no evidence tending to show liability under the fed- eral law, such ruling, when duly excepted to, is re- viewable, because inherently involving the operation and effect of the federal law." ^^ § 133. Power to Review Does Not Extend to Ques- tions Merely Incidental and Non-Federal in Char- acter. — Under the act of Congress heretofore cited giving the Supreme Court of the United States the power to review judgments of the highest court of a state to which a case is appealable, in any action under the Federal Employers' Liability Act, the power of the United States Supreme Court does not extend to questions merely incidental and not fed- eral in their character, that is, which do not in their essence involve the existence of the right in the plaintiff to recover under the federal statute to which his recourse by the pleadings was confined or the converse, that is, the right of the defendant to be shielded from responsibility under that statute be- cause, when properly applied, no liability on his part would result.^^ 12. The court in reaching this conclusion cited the following cases: Kansas City S. R. Co. v. C. H. Albers Commission Co., 223 U. S. 573, 591, 56 L. Ed. 556, 565; Creswill v. Grand Lodge, K. P., 225 U. S. 246, 56 L. Ed. 1074. 13. Wabash E. Co. v. Hayes, 234 U. S. 86, 58 L,. Ed. 1226, 6 N. C. C. A. 224, aflSrming same case reported in 180 111. Ajip. 511 ; St. Roberts Liabilities — 16 242 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS § 134. Ruling^ of State Court That Federal Ques- tion Was Sufficiently Raised Binding Upon United States Supreme Court. — To support a writ of error to the United States Supreme Court, the federal statute requires that the right, title, privilege or im- munity shall be ''especially set up or claimed" by the party appealing. If the highest supreme court of a state holds that a federal question was suf- ficiently raised and decided it, the objection that the claim or right was not presented with clearness enough to save it, is not open in the United States Supreme Court. ^^ In the Hesterly case cited, which was an action under the Federal Employers' Liabil- ity Act, the administrator of a deceased employe was seeking to recover damages for the pain and suffer- ing of the deceased, the death having occurred prior to the 1910 amendment. The defendant requested the trial court for a ruling that the plaintiff could not recover such damages which request was denied and defendant excepted. On appeal to the state su- preme court, that court treated the request as in- tended to raise the question whether the federal act displaced the state law and whether such damages could be recovered under it. The ruling of the lower court was sustained. When the case reached the national Supreme Court on writ of error, the def end- Louis, I. M. & S. Ey. Co. V. McWhirter, 229 U. S. 265, 57 L. Ed. 1179, reversing 145 Ky, 427; Seaboard A. L. R. Co. v. Duvall, 225 U. S. 447, 56 L. Ed. 1171; St. Louis, I. M. & S. R. Co. v. Taylor, 210 U. S. 281, 52 L. Ed. 1061. 14. St. Louis, I. M. & S. Ry. Co. v. Hesterly, 228 U. S. 702, 57 L. Ed. 1031, reversing same case reported in 98 Ark. 240; San Jose Land & Water Co. v. San Jose Ranch Co., 189 U. S. 177, 180, 47 L. Ed. 765, 768; Eau Claire Nat. Bank v. Jackman, 204 U. S. 522, 51 L. Ed. 596. JURISDICTION OF COURTS 243 ant in error made the objection that the claim or right under the laws of the United States was not raised with sufficient clearness to save the point; but the United States Supreme Court held that since the state supreme court had held the question sufficiently raised and passed upon it, such objection was not open in the national Supreme Court. § 135. Federal Questions to Support Writ of Error to United States Supreme Court, Need Not Be Raised by the Pleading's. — The federal claim or right which will support a writ of error from the United States to the highest court of a state, need not be raised by the party appealing by the pleadings. Where an interstate railroad was sued in the state court under a state statute for the death of an employe by bene- ficiaries in their individual capacities, and the de- fendant, not by answer, but by appropriate special exceptions, asked that the plaintiff be required to state facts showing whether they were relying on the state or federal act, which request was refused, and again at the conclusion of the testimony, de- fendant requested the court to direct the verdict in its favor on the ground that the undisputed evidence disclosed that the case was one which the federal statute controlled and that if liable, it was liable to the personal representatives and not to the plaintiffs, which request was denied, and the jury returned a verdict for the plaintiffs in which the damages were apportioned among the parents and widow conform- able to state law, the national Supreme Court held that the federal question was interposed in due time, and that the state courts erred in overruling it, thus 244 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS supporting a writ of error from the national Supreme Court to the state supreme court. ^^ It will be noticed that the federal right was not set up in the answer nor did the petition present any issue for the con- struction of the act, but the court held that in view of the fact that the plaintiffs' evidence showed con- clusively that the deceased was engaged in interstate commerce, it was sufficiently raised by a demurrer, especially since the court overruled the motion to make the petition state the facts as to employment in either kind of commerce. § 136. Pleading Federal Act and Submitting Case to Jury Under State Law, No Denial of Federal Right. — In an action under the federal act where a petition stated a good cause of action under that law and eliminating the allegations as to interstate em- ployment, stated a good cause of action under the law of the state, and the defendant upon the conclusion of all the evidence requested the court to instruct the jury that the case could not be maintained under the federal act and the lower court sustained its con- tention and submitted the cause under the state law, no right under the federal law by the action of the state court was denied the defendant and hence a writ of error to the United States Supreme Court could not be maintained. ^*^ 15. Seale v. St. Louis, S. F. & T. R. Co., 229 U. S. 156, 57 L. Ed. 1129, Ann. Cas. 1914 C 156n, reversing the same case reported in — Tex. Civ. App. — , 148 S. W. 1099; Moliter v. Wabash R. Co., 180 Mo. App. 84, 6 N. C. C. A. 75n, 78n, 81n, 86n, 233n. 16. Wabash R. Co. v. Hayes, 234 U. S. 86, 58 L. Ed. 1226, 6 N. C. C. A. 224, affirming same case reported in 180 111. App. 511. JURISDICTION OF COURTS 245 § 137. When Petition Not Stating a Good Cause of Action Under Federal Act Raises a Federal Ques- tion. — In an action by the administrator of a de- ceased railroad employe against a railroad company it was neither pleaded nor proven that the deceased left a widow, child, parent or dependent next of kin surviving him which is jurisdictional to a recovery under the federal act. Defendant in its answer set up that it was engaged in interstate commerce and that the deceased servant was employed by it in such commerce at the time of his death. The trial court overruled the contention of the defendant that the federal law applied and submitted the cause under the state law. The Supreme Court of the United States held that such a question was sufficient to support a writ of error for the reasoji that under the state law this limitation upon the recovery by an administrator was not recognized.^^ 138. Claim That Verdict Is Excessive Not Re- viewable by Writ of Error. — A contention that a verdict in an action under the federal act is excessive does not present a questign for reexamination upon a writ of error in the Supreme Court of the United States. Such questions are matters to be dealt with by the state courts. ^^ 17. North Carolina K. Co. v. Zachary, 232 U. S. 248, 58 L, Ed. 591, 6 N. C, C. A. 194n, Ann. Cas. 1914 C 159n. 18. Southern Ry. Co. v. Bennett, 233 U. S. 80, 58 L. Ed. 860. CHAPTER X PAKTIES, PLAINTIFFS AND DEFENDANTS, IN SUITS UNDER FEDERAL ACT § 139 Personal Eepresentative Only Can Bring Suit in Case of Death. § 140. Widow Cannot Maintain Suit in Individual Capacity Although She May Be Sole Beneficiary. § 141. Want of Legal Capacity in Widow to Sue Cannot Be Waived. § 142. Ancillary Administrator May Sue Under the Federal Act. § 143. Personal Eepresentative Alone May Eevive Suit Commenced by Employe in His Lifetime. § 144. Existence of Other Property Not Necessary to Secure Appoint- ment of Personal Eepresentative. § 145. Agents and Servants Whose Negligence Caused Injury, Not Liable Under the Federal Act. § 146. Lessor of a EaUroad May Be ]Made Party Defendant. § 147. Personal Eepresentative Appointed in One State Cannot Sue in Another State Without Consent. § 139. Personal Representative Only Can Bring Suit in Case of Death. — The federal statute provides in the first section that the carrier shall be liable in damages to any employe suffering injury under the condition named in the act, or, ' ' in case of the death of such employe, to his or her personal representa- tive, for the benefit of the surviving widow or hus- band and children of such employe ; and, if none, then of such employe 's parents ; and, if none, then of the next of kin dependent upon such employe." The amendment of 1910 also provides that ' ' any right of action given by this act to a person suffering injury, shall survive to his or her personal representative, 246 PARTIES TO ACTIONS UNDER ACT 247 for the benefit of the surviving widow or husband and children of such employe, and, if none, then of such employe's parents; and, if none, then of the next of kin dependent upon such employe, but in such cases there shall be only one recovery for the same injury." In cases of death, therefore, it has been repeatedly held by the courts that suit under the federal act can only be brought by the personal representative of the deceased, that is, the adminis- trator or the executor as the case may be.^ § 140. Widow Cannot Maintain Suit in Individual Capacity Although She May Be Sole Beneficiary. — If at the time of the accident, the railroad company was engaged in interstate commerce and the servant was employed by it in such commerce, the remedy given by the federal act is exclusive and the widow cannot sustain a suit in her individual capacity, although she is the sole beneficiary and although the laws of the state where the accident occurred, provide that the. widow is the proper party to bring suit for the death of an employe.^ Prior to the decisions of the 1. American E. Co. v. Didricksen, 227 U. S. 147, 57 L, Ed. 456; 3 N. C. C. A. 809n, 831n; Missouri, K. & T. Ry. Co. v. Wulf, 226 U. S. 570, 57 L. Ed. 355, 6 N. C. C. A. 230n, 237n, Ann. Cas. 1914 B 134n; American E. Co. v. Birch, 224 U. S. 547, 56 L. Ed. 879; St. Louis, S. F. & T. Ey. Co. v. Seale, 229 U. S. 156, 57 L. Ed. 1129, 3 N. C. C. A. 800, Ann. Cas. 1914 C 156n; St. Louis, I. M. & S. Ey. Co. V. Hesterly, 228 U. S. 702, 57 L. Ed. 1031; Eich v. St. Louis & S. F. E. Co., 166 Mo. App. 379; Gulf, etc., E. Co. v. Lester, — Tex. Civ. App. — , 149 S. W, 841; Dewberry v. Southern E. Co., 175 Fed. 307; Hearst v. St. Louis, I. M. & S. Ey. Co., — Mo. App. — , 173 S. W. 86. 2. American E. Co. v. Birch, 224 U. S. 547, 56 L. Ed. 879; Eastern Ey. Co. of New Mexico v. Ellis, — Tex. Civ. App. — , 153 S. W. 701 ; Dewberry v. Southern E. Co., 175 Fed. 307; Eich v. St. Louis & S. F. E. Co., 166 Mo. App. 379; St. Louis S. W. Ey. Co. v. Brothers, — Tex. 248 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS Supreme Court of the United States cited, a few courts had decided that a widow, under such circum- stances, was not limited to sue under the Federal Employers' Liability Act, but was also entitled to sue under the state law.^ These decisions are now in conflict with the controlling rulings of the national Supreme Court. § 141. Want of Legal Capacity in Widow to Sue Cannot Be Waived. — The want of legal capacity in a widow to sue as an individual under the federal statute, goes to the substance of the action and can- not be waived.^ Where a widow, suing individually as plaintiff in a Missouri court, and alleging a cause of action under the laws of the state of Kansas, ob- tained a judgment upon proof showing that her husband was killed while assisting in the movement of an interstate train, she could not thereafter as ad- ministratrix, enter her appearance and adopt the judgment.^ In the Vaughan case, cited in the notes, it was argued on behalf of the widow that the federal statute did not control procedure in the state courts and that as the defendant did not demur or raise the objection by answer, it waived the lack of capacity in plaintiff to sue. But Judge Trimble, speaking Civ. App. — , 165 S. W. 488 ; Vaughan v. St. Louis & S. F. E, Co., 177 Mo. App. 155, 6 N. C. C. A. 75ii, 438n, 439n; Cincinnati, N. O. & T. P. Ey. Co. V. Bonham, — Tenn. — , 171 S. W. 71. 3. An illustrative case is Troxell v. Delaware, L. & W. K. Co., 180 Fed. 871. This case was reversed when it reached the Circuit Court of Appeals, 183 Fed. 373. 4. Missouri, K. & T. Ey. Co. v. Lenahan, 39 Okla. 283, 6 N. C. C. A. 75n, 78n, 437n. 5. Vaughan v. St. Louis & S. F. E. Co., 177 Mo. App. 155, 6 N. C. C. A. 75n, 438, 439n; Dungan v. St. Louis & S, F. E. Co., 178 Mo. App. 164, 6 N. C. C. A. 438, 439n. PARTIES TO ACTIONS UNDER ACT 249 for the court, in answering this contention, said: "The trouble with this contention is that since the federal act displaces the Kansas statute it has taken out of the widow the right to recover and placed it in the personal representative, and when defendant by its demurrer to the evidence objected to any judg- ment, there was no law in force authorizing the court to render judgment in her favor. The court had no authority, outside of the federal law, to render any judgment. Hence it had no authority to render the judgment it gave, and, as defendant objected thereto, by demurring to the evidence, the validity thereof was not waived. (See on this point Barker v. Han- nibal & St. J. R. Co., 91 Mo. 86; Hegberg v. St. Louis & S. F. E. Co., 164 Mo. App. 514; Poor v. Watson, 92 Mo. App. 89.) Again, while the federal act does not attempt to control state procedure, yet it does not leave state procedure so free and untrammeled as to allow such procedure to work a change in the terms of the statute. So that as defendant objected to the judgment before it was rendered the pro- visions of the federal law were not waived. ' ' Other courts have held that if the pleading states facts showing that the remedy given by the federal act applies, or the evidence discloses that the decedent was killed while employed in interstate commerce, the want of the widow's legal capacity to sue may be raised for the first time in the appellate court.^ 6. Cincinnati, N. O. & T. P. Ky. Co. v. Bonham, — Tenn. — , 171 S. W. 71; La Casse v. New Orleans, T. & M. R. Co., — La. — , 6 N. C. C. A. 196n, 437n, 64 So. 1012; Southern Ey, Co. v. Howerton, — Ind. — , 101 N. E. 121; St. Louis, I. M. & S. E. Co. v. Hesterly, 250 INJUEIES TO INTERSTATE EMPLOYES ON RAELiROADS §142. Ancillary Administrator May Sue Under the Federal Act. — A deceased brakeman at the time of his death, was in the employ of a railroad com- pany rmming between a point in Tennessee and an- other point in Kentucky. He lived in Kentucky and the railroad company was a corporation of Ken- tucky. He was killed in Tennessee. His widow was appointed administratrix of his estate by the proper court of the county in which he lived in Kentucky. Afterwards, upon proof that he had some property, an administrator was appointed in the county in Tennessee in which he was killed. Anderson, the Tennessee administrator, brought suit under the fed- eral act against the railroad company in the state courts of Tennessee which, prior to the 1910 amend- ment as to removal, was removed to the District Court of the United States including that county. The pleading of the defendant set out these facts and the lower federal court dismissed the suit on the ground that the cause of action vested solely in the administratrix appointed in Kentucky. In the Cir- cuit Court of Appeals the sole question before the court was whether, notwithstanding the previous appointment of the Kentucky administratrix, the Tennessee administrator, could, for the purposes of the suit, be rightfully treated as the decedent's "per- sonal representative" within the meaning of the Federal Employers' Liability Act. The court held that the federal statute did not vest the right of action solely in the administrator appointed in the 228 U. S. 702, 57 L. Ed. 1031, reversing same case reported in 98 Ark. 240 ; Penny v. New Ordeaus, G. N. E. Co., — La. — , 66 So. 313. PARTIES TO ACTIONS UNDER ACT 251 state of the deceased employe's domicile, but that the action might be maintained by an ancillary ad- ministrator appointed in another state in view of the remedial character of the statute and the repre- sentative character of the suit authorized, especially where the ancillary administrator is appointed in the state where the death occurred, and the suit is brought and prosecuted with the approval of the domiciliary administratrix who is also the principal beneficiary,^ § 143. Personal Representative Alone May Revive Suit Commenced by Employe in His Lifetime. — Prior to the amendment of 1910, it had been held by the courts that the cause of action given an employe by the federal statute did not survive his death, but was extinguished by his death.^ These decisions led Congress to pass the amendment providing for the surA^ival of the cause of action. Notwithstand- ing, the amendment provides that the damages shall go to the same beneficiaries mentioned in the first section of the act the personal representative is the only proper party plaintiff to revive and prosecute the suit in the event of the death of the employe after bringing a suit for his own injuries.^ § 144. Existence of Other Property Not Necessary to Secure Appointment of Personal Representative. — ^Although an employe of a common carrier by rail- 7. Anderson v. Louisville & N. E. Co., 127 C. C. A. 277, 210 Fed. 689, 6 N. C. C. A. 439n. 8. Walsh V. New York, N. H. & H. E. Co., 173 Fed. 494; Folgham V. Midland V. E. Co., 167 Fed. 660. 9. St. Louis S. W. E. Co. v. Brothers, — Tex. Civ. App. — , 165 S. W. 488. 252 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS road, killed under circumstances rendering the fed- eral act exclusively applicable, left no other prop- erty except the right of action for the beneficiaries under the national statute, letters of administration on his estate may nevertheless be issued.^" § 145. Agents ajid Servants Whose Negligence Caused Injury, Nat Liable Under the Federal Act. — The agents or servants whose negligence cause an injury to another employe employed by the carrier at the time of the injury, in interstate commerce, are not liable under the federal statute. In one case the administrator of an engineer's estate brought suit against a railroad company and alleged facts which showed that the federal act was applicable. A mas- ter mechanic, whose negligence was claimed to have caused the injury, was joined as defendant. The court held that the master mechanic was not liable under the Federal Employers' Liability Act, for the law is limited to common carriers engaged in inter- state commerce and the master mechanic was not a common carrier engaged in interstate commerce. It was held however that if his negligence caused the injury, he would be liable under the state laws to the proper party suing under that law.^^ § 146. Lessor of a Railroad May Be Made Party Defendant. — When a railroad company leases its line to another company and the laws of the state provide that the lessor shall be liable for the acts of the lessee, the lessor may be sued for an injury oc- 10. Gulf, C. & S. F. Ey. Co. v. Biezley, — Tex. Civ. App. — , 153 S. W. 651 ; Eastern Ey. Co. of New Mexico v. Ellis, — Tex. Civ. App, — , 153 S. W. 701. 11. Kelly V. Chesapeake & O. E. Co., 201 Fed. 602, PARTIES TO ACTIONS UNDER ACT 253 curring in that state under conditions described in the federal act although the injured servant was in the employ of the lessee. ^^ But the Supreme Court of Illinois held that the owner of the track was not liable under the federal act to an employe of a licensee on the same track, the licensee and its em- ploye being at the time engaged in interstate com- merce.^^ § 147. Personal Representative Appointed in One State Cannot Sue in Another State Without Con- sent. — The personal representative of a deceased railroad employe killed while working for a railroad company in interstate commerce and while the com- pany was so engaged, cannot prosecute an action for his death in any state besides the one in which he was appointed, unless he is authorized to do so by a statute of the state where he proposes to bring the action. ^^ 12. North Carolina E. Co. v. Zachary, 232 TJ. S. 248, 58 L. Ed. 591, 6 N. C. C. A. 194n, Ann. Cas. 1914 C 159ii. 13. Wagner v. Chicago & A. E. Co., — 111. — , 106 N. E. 809. 14. Baltimore & O. E. Co. v. Evans, 110 C. C. A. 156, 188 Fed. 6; Midland V. E, Co. v. LeMoyne, — Ark. — , 4 N. C. C. A. 493n, 148 S. W. 654; Hall v. Southern E. Co., 146 N. C. 345. CHAPTER XI PLEADINGS UNDER THE FEDERAL ACT § 148. Plaintiff 's Petition Must Plead Facts Showing That Injury or Death Occurred Under Conditions Described in the Act. § 149. If petition States Cause of Action Solely Under Federal Law, There Can Be No Eecovery Under State Law — Conflicting Kulings. § 150. Petition Stating a Cause of Action Under State Law, Eecovery Permitted Under Federal Act When Omitted Allegations Are Supplied by the Answer. § 151. Eecovery Under Petition Stating Cause of Action Under State Law Though Evidence Shows a Case Under Federal Act, Harmless Error on Appeal, When. § 152. Pleading Cause of Action Under State Law in One Count and Under Federal Act in Another Count, Allowed. § 153. Petition Need Not Specifically Eefer to the Act if Facts Show- ing Liability Thereunder Are Pleaded. § 154. State Law as to Sufficiency of Pleading Governs. § 155. Allegations as to Engagement in Interstate Commerce Held SufiScient. § 156. Allegation to Show Cause of Action Under the Federal Act Held Not Sufficient. § 157. In Cases of Death Petition Must Allege Survival of Bene- ficiaries Named in Statute. § 158. Petition Must Allege Pecuniary Loss to Beneficiaries. § 159. In Suits Under State Laws, Applicability of Federal Act May Be Eaised by Answer. § 160. Where Petition Is Under State Law and Evidence Shows Case Under Federal Statute, Plaintiff Cannot Eecover. § 161. Defendant in Suit Under State Law Must Specifically Plead Federal Act to Defeat Eecovery. § 162. When Amendment of Petition Permissible After Two-year Period of Limitation. § 163. When Amendments After Limitation Period Not Allowed. § 148. Plaintiff's Petition Must Plead Facts Show- ing That Injury or Death Occurred Under Condi- tions Described in Federal Act. — In order to recover 254 PLEADINGS 255 in an action based upon the Federal Employers' Lia- bility Act, the plaintiff should allege facts showing that at the time of the accident the defendant was engaged as a common carrier by railroad in inter- state commerce and that the plaintiff (or the dece- dent) was emiDloyed by the defendant in such com- merce at the same time.^ If the plaintiff's petition states a cause of action under the state law, no re- covery can be had under the federal act, notwith- standing the evidence shows that the plaintiff's rights are governed by that statute.- One of the Missouri courts of appeal decided that it was not 1. North Carolina R. Co. v. Zachary, 232 U. S. 248, 58 L. Ed. 591, 6 N. C. C. A., 194n, Ann. Cas. 1914 C 159n; St. Louis, S. F. & T. Ey. Co. V. Seale, 229 U. S. 156, 57 L. Ed. 1129, 3 N. C. C. A. 800, Ann. Cas. 1914 C 156n; Shade v. Northern P. Ry. Co., 206 Fed. 353, 6 N. C. C. A. 93n ; Southern Ry. Co. v. Howerton, — Ind. — , 106 N. E. 369 ; Chicago, R. I. & P. Ry. Co. v. McBee, — Okla. — , 145 Pac. 331. Concerning the necessity of pleading facts showing that the suit is brought under the Federal Employers' Liability Act, the Supreme Court of Alabama in reversing the case of Atlantic C. L. Ry. Co. v. Jones, 9 Ala. App. 499, said : " It is essential to the certain and orderly administration of the law of master and servant, as these distinct enactments establish it, that the initial pleading, or its amendment, be so drawn that the courts may be able to determine under which of the two enactments, state or federal, the respective counts are intended to assert a claim for liability. The suiEciency vel noil of counts under our state statute necessarily involve ques- tions that will not arise upon the issue of sufficiency vel non of counts seeking to declare upon a liability under the federal statute; and the provisions of the latter enactment forbid matters of defense admissible in an action under the state statute. ' ' Ex Parte Atlan- tic C. L. R. Co., — Ala. — , 67 So. 256. 2. Gaines v. Detroit, G. H. & M. C. Ry. Co., — Mich, — , 6 N. C C. A. 202n, 148 N. W. 397; Moliter v. Wabash R. Co., — Mo. App. 6 N. C. C. A. 75n, 78n, 81n, 186n, 233n, 168 S. W. 250 ; Rich v. St Louis & S. F. R. Co., 166 Mo. App. 379 ; Penny v. New Orleans G. N Ey. Co., — La. — , 66 So. 313 ; Midland V. R. Co. v. Ennis, — Ark, — 6 N. C. C. A. 80n, 234u, 159 S. W. 215. 256 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS necessary in a petition to recover under the federal act to allege that the railroad company was en- gaged in interstate commerce as the court will take judicial notice that all railroads in the state are engaged in interstate commerce,^ but this decision lays down a rule that is contrary to the weight of authority.^ A petition charging negligence under the original Safety Appliance Act was held to state no cause of action for the reason that there was no allegation in the petition that the cars having the defective coup- lers were at the time of the injury being used in interstate commerce.^ A petition which does not state that the defendant was a common carrier is defective.^ 3. Mcintosh v. St. Louis & S. F. E. Co., — Mo. App. — , 168 S. W. 821. 4. Moliter v. Wabash E. Co., — Mo. App. — , 168 S. W. 250; Chicago, E. I. & P. Ey. Co. v. McBee, — Okla, — , 145 Pac. 331 ; North Carolina E. Co. v. Zachary, 232 U. S. 248, 58 L. Ed. 591, 6 N. C. C. A. 194n, Ann. Cas. 1914 C 159n,- Atlantic C. L. E. Co. v. Eeaves, 125 C. C, A. 599, 208 Fed. 141; Seaboard A, L. Ey. Co. v. Duvall, 225 U. S. 477, 56 L. Ed. 1171; Fort Worth & D. C. Ey. Co. v. Stalcup, — Tex. — , 167 S. W. 279. The Supreme Court of Michigan held that it was not necessary for the plaintiff in any action for personal injuries agaiast a common carrier or railroad to "plead either statute (state or federal) but that upon the coming in of the proofs, it was the duty of the trial court to permit an amendment of the pleadings to conform thereto." Under this decision the defendant is not entitled to notice by the pleadings, before the trial, as to which law, state or federal, the plaintiff is relying upon. Fernette v. Pere Marquette E. Co., — Mich. — , 6 N. C. C. A. 231n, 144 N. W, 834; contra, Gaines v. Detroit, G. H. & M. Ey. Co., — Mich. — , 6 N. C. C. A. 202n, 148 N. W. 397. 5. Brinkmeier v. Missouri P. Ey. Co., 224 U. S. 268, 56 L. Ed. 758, 3 N. C. C. A. 795n, affirming same case reported in 81 Kan. 101. 6. Shade v. Missouri P. E. Co., 206 Fed. 353, 6 N. C. C. A. 93n. PLEADINGS 257 §149. If Petition States Cause of Action Solely Under Federal Law, There Can Be No Recovery Un- der State Law — Contrary Rulings. — In any action by an employe against a railroad company for in- juries, if tlie petition states facts which constitute a cause of action solely under the federal act, and it develops at the close of the evidence, the plaintiff was not engaged in interstate commerce, the cause should not be submitted to the jury under the laws of the state, although after eliminating the allega- tions as to interstate employment, the petition states facts sufficient to constitute a cause of action under the state law." This rule, however, does not apply when the petition states a cause of action under the state law in one count and under the federal law in another count. ^ The Kentucky Court of Appeals, however, held that even under a petition stating a cause of action solely under the federal act, the cause should be, under the conditions stated, submitted under the state law.'' It is impossible to harmonize this ruling with the cases previously cited herein and also with the cases cited in the preceding paragraph, holding that under a petition stating a cause of action under the state law, a recovery cannot be had imder the federal act; for whatever is the true rule, it ought 7. Midland V. E. Co. v. Ennis, 109 Ai-k. 206, 6 N. C. C. A. 80n, 23411 ; Moliter v. Wabash E. Co., — Mo. App. —,-6 N. C. C. A. 75n, 78n, 81n, 186n, 233n, 168 S. W. 250; Gaines v. Detroit, G. H. & N. Ey. Co., — Mich. — , 6 N. C. C. A. 202n, 148 N. W. 397 ; Creteau v. Chicago & N. W. By. Co., 113 Minn. 418. 8. Section 152, infra; Ullrich v. New York, N. H. & H. E. Co., 193 Fed. 768. 9. Jones v. Chesapeake & O. Ey. Co., 149 Ky. 566. Roberts Liabilities — 1 7 258 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS to work both ways and there can be no difference in principle between cases holding that the petition miist allege a cause of action under it, if a recovery is sought under the federal act and a case in which the plaintiff is seeking a recovery under the state law when his petition declares a cause of action under the federal act. In deciding the Jones case, cited in the notes, the Kentucky Court of Appeals, upon the question under discussion, cited a case de- cided by a federal district court as approving such a practice; ^° but in that case, the question was not passed upon, the controversy being as to the re- movability of a cause under the federal act, which also stated a cause of action under the state law. To permit a plaintiff to allege a cause of action under the federal act and then after all the evidence is in, if it appears that he was not engaged in inter- state commerce, to submit the case under the state law, might work an injustice upon the defendant; for there are defenses to actions under state laws, which he might have set up in his answer, and which he would not, in an action under the federal act. In such a case as the petition only stated a cause of action under the federal act, a defendant could scarcely be expected to anticipate that the plaintiff, at the close of the evidence, would switch from law to law so as to make it obligatory upon the defend- ant to set up defenses to a law not pleaded, or relied upon in the petition. The converse of this rule has properly been applied to the defendant in an action under the federal act, for it has been repeatedly de- 10. UUrich v. New York, N. H. & H. E. Co., 193 Fed. 768. PLEADINGS 259 cided that a defendant cannot defeat the plaintiff's right to recover under a state law, by claiming that he was engaged in interstate commerce at the time, unless such a defense is pleaded in the answer. ^^ If such a defense is to be made, the plaintiff should have notice of it, so that he may take such action as may be necessary to protect his interest. On the other hand, if a plaintiff expects to recover under a state law, he should be required to plead it in his petition so that the defendant may not be taken by surprise. In passing upon the question under dis- cussion, the language of the Supreme Court of Ar- kansas in Midland V. Ey. Co. v. Ennis, cited supra, states the rule that should be applied in such cases, as follows: "It is insisted now that, appellee having sued under the Employers' Liability Act, he cannot recover in this action under the laws of the State of Oklahoma for an injuiy which occurred while the deceased was engaged in intrastate commerce. Facts which give the right to recover under the state law, and those which give the right to recover under the federal statute, constitute separate and distinct causes of action, for the federal statute is exclusive where the incident is embraced within interstate commerce service and does not apply where it is in intrastate service. The two causes of action may, however, be joined in the same complaint. Earby's Digest, § 6079, subd. 6. There cannot, however, be a recovery upon a cause of action other than that stated in the pleadings and upon which the issue is 11. Section 160, infra. If the plaintiff 's proof shows a cause of action under the federal, then there is a variance. Section 160, infra. 260 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS joined. Patrick v. Whitley, 75 Ark. 465, 85 S. W. 1179, 5 Ann. Cas. 672; St. Louis, S. F. & T. Ky. Co. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129 (3 N. C. C. A. 800, Ann. Cas. 1914 C 156n)." § 150. Petition Stating a Cause of Action Under State Law, Recovery Permitted Under Federal Act When Omitted Alleg-ations Are Supplied by the Answer.— Even though a petition for damages by an employe against a railroad company is silent as to the allegations necessary to constitute a cause of action under the federal act, i. e., engagement of the one and employment of the other by it in interstate commerce at the time of the injury, yet nevertheless at least two appellate courts have sustained on ap- peal a recovery upon such a petition without amend- ment, under the federal act, under the following circumstances: When the defendant's answer al- leged it was engaged and the injured sei-vant was employed, in interstate commerce at the time of the injury and the plaintiff admitted such allegations in his reply, a recovery under the federal act was sus- tained on appeal because the allegations necessary to state a good cause of action under the federal act were supplied by the defendant 's answer, and under the doctrine of aider, the defect in the petition was cured by the answer. ^^ The courts in the opinions 12. Vickery v. New London N. E. Co., 87 Comi. 634, 4 N. C. C. A. 218n, 6 N. C. C. A. 75n, 93n, 230n; White v. Central V. Ey. Co., 87 Vt. 330, 6 N. C. C. A. 75n, 92n, lOln, 450n; .Niles v. Central V. Ey. Co., 87 Vt. 356, 6 N. C. C. A. 75n. A verdict against a railroad company for the death of a car repairer engaged in interstate commerce, was sustained by the Su- preme Court of Arkansas although the complaint did not expressly declare under the federal statute. The decedent was repairing a PLEADINGS 261 cited tacitly recognized the general rule that a re- covery under the federal act would not be permitted under a petition stating a cause of action under the laws of the state and also specifically held that the rule of express aider in pleadings does not go to the extent of curing a petition which states no cause of action ; but held such petitions, being silent as to the employment of one and the engagement of the other in interstate commerce, merely stated a defective cause of action under the federal act. To the extent of holding that a petition for damages under the laws of a state, states also a cause of action under the federal act although defective, the cases cited in this paragraph seem to conflict with the rulings by other courts cited elsewhere. ^^ The plaintiff in the Vickery case cited, had been placed in a predica- ment endangering his right to recover by a former opinion of the same court, and his failure to keep alive his cause of action under the federal act was due to the court's own error in a former opinion in another case subsequently reversed by the Supreme Court of the United States.^^ In the former opinion car in Arkansas consigned from Kansas City, Missouri, to Tucker- man, Arkansas. The court said : ' ' The plaintiff does not, in her complaint, expressly declare upon the federal statute known as the 'Federal Employers' Liability Act.' Nor does the complaint even contain an allegation that Sharp was engaged in work on a car used in interstate commerce; but that fact is set forth in the answer and the case was tried under the terms of that statute. The rights of the parties must therefore be determined by the terms of the federal statute," St. Louis, I. M. & S. Ey. Co. v. Sharp, — Ark. — , 171 S. W. 95. 13. Sections 148 and 149, supra. 14. Second Employers ' Liability Cases, 223 TJ. S. 1, 56 L. Ed. 327, 1 N. C. C. A. 875, 38 L. E. A. (N. S.) 44. 262 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS in tlie other case the court had declared the Employ- ers' Liability Act of 1908 invalid as being in conflict with the Constitution of the United States. Th« plainti:ff in the Vickery case, relying upon this opin- ion, brought his action against the railroad company under the state law. It was conceded that he was engaged in interstate commerce. After the two-year period of limitation under the federal act had ex- pired, the United States Supreme Court in the Mon- dou case held that the federal act was valid. ^^ The plaintiff then sought to amend his petition by alleg- ing that the defendant was engaged and that he was employed in interstate commerce at the time of the injury. The trial court refused to permit an amend- ment on the ground that the cause of action under the federal act had expired. Afterwards the de- fendant filed an amended answer alleging the en- gagement of the company and the employment of the plaintiff in interstate commerce at the time of the injury. The plaintiff then filed a reply, admit- ting these allegations of the amended answer and concluded his reply with a prayer for recovery under the federal act. To this reply the defendant de- murred because, among other things, it was a de- parture from the original petition. The trial court overruled the demurrer and the defendant, refusing to stand on the demurrer, proceeded to trial. On the issues thus framed by the pleadings a trial was had with the usual result — a verdict by the jury against the railroad company. In the appellate 15. tSection 4, supra. PLEADINGS 263 court the case therefore turned upon questions of pleading and the court held, (a) that the plaintiff's petition stated a cause of action defectively under the federal act as distinguished from a defective cause of action, (b) that the answer supplied the defective allegations of the petition, (c) that a peti- tion which states no cause of action cannot be aided by allegations in an answer, (d) that a petition which states a cause of action defectively under the federal act may be aided by allegations in the answer although filed after the two-year period of limitation, and (e) that defendant's demurrer to the reply on the ground of departure was under the rules of pleading in that state, waived by going to trial. In the other case by the same court, Niles v. Central V. Ry. Co., cited supra, it was held by the court that when a petition stated a cause of action under the state law and the plaintiff sought in his reply to allege facts showing liability under the federal act, such matter constituted a departure. § 151. Recovery Under Petition Stating' Cause of Action Under State Law Though Evidence Shows a Case Under Federal Act, Harmless Error on Appeal, When. — Notwithstanding that, in an action by an employe against a railroad company, the evidence disclosed that the carrier was engaged and the in- jured servant was employed in interstate commerce, but the petition was based upon the state law and a recovery was permitted by the trial court under the state law, yet such an error will not work a reversal on appeal, unless the defendant has been prejudiced 264 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS thereby. ^^ For instance, it has been held that, if the federal law was more favorable to the defendant than the state law, it would not be a reversible error for the appellate court to let a recoveiy under the state law stand even though the evidence disclosed a case under the federal law, the error in such a case not being material and prejudicial.^^ In another case, where under similar circumstances, defendant availed himself during the trial, of all the defenses that he would have had under the federal law, it was held that the trial court, in permitting a recovery under the state law, did not commit such an error as would require a reversal because it did not appear that the defendant had in any way been prejudiced. ^^ Courts are not inclined to listen with patience to defenses as to which law is applicable when the claim is made or denied as the exigencies of the situation may be advantageous to the defendant that the plaintiff and the defendant were engaged in interstate commerce if it appears from all the facts 16. Femette v. Pere Marquette K. Co., — Mich. — , 6 N. C. C. A. 231n, 144 N. W. 834. 17. Mcintosh v. St. Louis & S. F. R. Co., — Mo. App. — , 168 S. W. 821. 18. Southern Ry. Co. v. Howerton, — Ind. — , 101 N. E. 121 ; s. c, — Ind. — , 6 N. C. C. A. 75n, 82n, 105 N. E. 1025. In an action by an employe against a common carrier by railroad for injuries, the petition stated a cause of action under the common law. Defendant pleaded in its answer that the plaintiff had accepted benefits from a relief fund, thus releasing the defendant. Plaintiff in his reply pleaded the federal statute abolishing such defenses (See § 121, infra) and proved facts showing federal statute applied. Defendant at the trial admitted plaintiff was employed in interstate commerce. It was held that the cause should have been submitted to the jury under the federal act as the defendant was not prejudiced thereby. Hogarty V. PhUadelphia & R. R. Co., 245 Pa. 443. PLEADINGS 265 in the case that such defenses are made purely for delay and where they do not affect the substantial rights of the parties. ^^ In the Nelson case his original complaint stated a cause of action under both the federal and the state law. The defendant in answering admitting that the plaintiff was in- jured, but denied that either the plaintiff or the defendant was engaged in interstate commerce at the time of the accident and injury. A further de- fense of contributory negligence and assumption of risk was pleaded. After the jury was empanelled and sworn, the counsel for defendant admitted that the defendant was liable for the injury to plaintiff unless the latter assumed the risk of the injury or was guilty of contributory negligence. Thereupon, before any evidence was introduced, the plaintiff immedi- ately moved to amend his petition by striking out the allegation that he and the defendant were engaged in interstate commerce so that the complaint stated a cause of action under the state law. Although the defendant had denied in its answer that either of the parties were engaged in interstate commerce, de- fendant's counsel objected to the amendment. Coun- sel for plaintiff then offered to admit that both parties were engaged in interstate commerce if counsel for defendant wished to allege that fact. The offer was not accepted and the court granted the plaintiff's motion to amend its petition which after the amendment stated only a cause of action under the state law. After the plaintiff's amendment was made defendant's counsel amended his answer by 19. lUicois C. E. Co. v. Nelson (C. C. A.), 212 Fed. 69. 266 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS alleging that the defendant was engaged in inter- state commerce at the time of plaintiff's injury but did not allege that the plaintiff was also employed in such commerce at the same time. In the course of the trial evidence was introduced which tended to prove that each of the parties was engaged in interstate commerce. No substantial evidence was introduced in support of the defense of assumption of risk or contributory negligence. At the close of all the evidence the plaintiff moved to strike out the evidence that the parties were engaged in interstate commerce at the time of the accident, on the ground that the answer did not set up that defense. Counsel for defendant moved to amend the answer so as to plead that defense but his motion was denied and the motion of the plaintiff to strike out the evidence was granted. The federal circuit court of appeals in considering this case on appeal held that in view of the fact that the negligence was admitted and that no evidence of assumption of risk or contributory negligence was introduced by defendant, that the errors of the court did not prejudice the defendant. Speaking of these gymnastic gyrations of a litigant in a court of justice Judge Sanborn, for the court, said: ''No error is perceived in these rulings. The defendant was offered its choice of the defense of a cause of action for an admitted liability under the federal law or under the state law. When the plain- tiff alleged that his cause of action arose under the federal law, the defendant denied that it arose under that law. When the plaintiff alleged by an amend- ment that his cause of action arose under the state PLEADINGS 267 law, counsel for the defendant now insists that he intended to amend his answer so as to plead that it arose under the federal law. The court held that his amended pleading was insufficient to present that issue, and that ruling was clearly right, for it was indispensable to a plea of that fact that the defendant should aver that the plaintiff and his employer were each engaged in interstate commerce at the time of the accident, and the defendant did not allege that the plaintiff was so engaged. Tliere was no error in the gTanting of the motion to strike out the evidence to the effect that the parties were engaged in interstate commerce because there was no plead- ing to warrant its admission and it was no abuse of discretion for the court to refuse the defendant per- mission, at the close of the trial, to inject that issue into the case when the record conclusively proved that the only purpose of the attempt to introduce it was to postpone the plaintiff' 's recovery of damages caused by the admitted negligence of the defendant. Not only this, but if there had been error in these rulings it would not have been fatal to this trial, because defendant's liability for its negligence was admitted, there was no substantial evidence of the plaintiff's assumption of the risk of his injury, or of his contributory negligence, the same person, the plaintiff, was entitled to recover whether his cause of action arose under the federal law or under the state law, the only question remaining at issue was the amount of the recoverable damages, and the rules for the measurement of these damages were identical under the federal law and under the state law, so 268 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS that it appeared beyond doubt from the pleadings and the evidence that an error in these rulings did not prejudice and could not have prejudiced the de- fendant, and error without prejudice is no ground for reversal. Where, in an action against a common carrier for a negligent injury, the same party, if any one, is entitled to recover on the alleged cause of action, and the rules of law governing the trial of the issues in the case are the same under the Federal Employers' Liability Act and under the state laws, and no question of jurisdiction is involved, it is im- material whether the action, trial, and judgment are had under the federal law or under the state law. Because there was no substantial evidence to sustain a verdict that the plaintiff assumed the risk of his injury or that he was guilty of contributory negli- gence, this record satisfies beyond doubt that the alleged errors in the rulings of the court on these subjects, as well as on matters relating to the ques- tion whether the cause of action arose imder the federal law or under the state law, did not prejudice and could not have prejudiced the defendant, and they are accordingly dismissed without further dis- cussion, whether they were made upon questions regarding the pleadings, upon the admission or ex- clusion of evidence, in the charge of the court, or in its refusal of requested instructions." § 152. Pleading Cause of Action Under State Law in One Count and Under Federal Act in Another Count, Allowed. — All of the courts have generally agreed on the proposition that the plaintiff, he is the proper party under both laws, may set up facts in PLEADINGS 269 one count of the petition showing liability under the federal act, and may, in another count of the same petition, plead facts showing liability under the state law. In other words, the pleader may charge a viola- tion of both laws in separate counts of the same petition. After so pleading liability under both laws, at what stage of the proceedings subsequently, he will be required to elect, if at all, depends upon the rules of procedure of the courts of the state where the suit is pending. As the federal law, when applicable, gives the exclusive remedy and as, in some states, the questions involved under the state and federal act are very different, some conflict has arisen as to when a motion to elect, should be sus- tained, and these cases will be hereinafter reviewed. On the other proposition, as to whether liability under the two laws may be pleaded in separate coimts in the same petition, the Supreme Court of the United States approved the practice, although such questions necessarily depend upon the rules of pleading in the state where the action is pending.^*^ In the Hayes case, the United States Supreme Court said: ''The plaintiff asserted only one right to re- cover for the injury, and in the nature of things he could have but one. "Whether it arose under the 20. Wabash E. Co. v. Hayes, 234 U. S. 86, 58 L. Ed. 1226, 6 N. C. C. A. 224, affirming same case reported in 180 111. App. 511; Bankson V. Illinois C. E. Co., 196 Fed. 171; Midland V. E. Co. v. Ennis, — Ark. — , 6 N. C. C. A. 80n, 234n, 159 S. W. 214; Atkinson v. Bill- iard, — Ga. App. — , 6 N. C. C. A. 80n, 183n, 80 S. E. 220. A demurrer on the ground of mis.ioiader of counts where a cause of action under the federal law is stated in one count and under the state law in another, should be overruled. Bouchard v. Central V. E. Co., 87 Vt. 399, 6 N. C. C. A. 78n, 81n. 270 INJURIES TO INTERSTATE EMPLOYES ON R.ULROADS federal act or under the state law, it was equally cognizable in the state court; and had it been pre- sented in an alternative way in separate counts, one containing and another omitting the allegation that the injury occurred in interstate commerce, the propriety of proceeding to a judgment under the latter count, after it appeared that the first could not be sustained, doubtless would have been freely conceded. Certainly nothing in the federal act would have been in the way. ' ' § 153. Petition Need Not Specifically Refer to the Act if Facts Showing Liability Thereunder are Pleaded. — If the petition of the plaintiff alleges facts which show that the defendant was a common carrier by railroad in interstate commerce at the time of the accident and that the plaintiff was employed by it in such commerce, the statute applies, although no reference is made to it in the petition.^^ Since all state courts are required to take judicial notice of the federal law, it is not necessary to specifically plead that law if facts showing liability thereunder are stated in the petition.-^ The petition need not state in so many words that the action is brought under the federal statute. It is sufficient if the state- ment of facts in the petition bring the cause within the terms of the statute.^^ 21. Grand T. W. Ry. Co. v. Lindsay, 233 U. S. 42, 58 L. Ed. 838, 6 N. C. C. A. 90, 91n, Ann. Cas. 1914 C 168n; Garrett v. Louisiana & N. Ry. Co., — U. S. — , 35 Sup. Ct. 32; s. c, 117 C. C. A. 109, 197 Fed. 715, 3 N. C. C. A. 769, 4 N. C. C. A. 925n; KeUy v. Chesapeake & O. Ey. Co., 201 Fed. 602 ; Vandalia E. Co. v. Stringer, — Lnd. — , 106 N. E. 865. 22. McDonald v. Railway T. Co., 121 Minn. 273. 23. Kansas City S. Ry. v. Cook, 100 Ark. 467 ; Cound v. Atchison, T. PLEADINGS 271 §154. State Law as to Sufficiency of Pleading Governs. — In an action under the federal act brought in the state courts, the rules of pleading and pro- cedure of the state where the action is being prose- cuted, governs throughout.^* When a general allegation of negligence is sufficient under the rules applied by the state courts in ordinary actions, such an allegation is sufficient in an action under the federal act prosecuted in the state court.^^ § 155. Allegations as to Engagement in Interstate Commerce Held Sufficient. — A petition in an action for personal injuries stating that the defendant was a common carrier by railroad and engaged in inter- state commerce between several states and that the plaintiff was employed as a brakeman on a freight train running from one state to another, contained sufficient allegations to show interstate employment within the terms of the federal act.-^ Where the injury was stated in the petition of plaintiff in an action under the federal act, to have been caused by the negligence of the railway company while it was engaged as a common carrier in carrying on interstate commerce and while the plaintiff was em- ployed by it in such commerce, the allegation was & S. F. Ry. Co., 173 Fed. 527 ; Clark v. Southern P. Ey. Co., 175 Fed. 122; Whittaker v. Illinois C. Ey. Co., 176 Fed. 130. 24. Fleming v. Norfolk S. E. Co., 160 N. C. 196, 6 N. C. C. A. 78n, 229n; Chesapeake & 0. Ey. Co. v. Kelley's Adm'x, — Ky. — , 171 S. W. 185; Gibson v. Billingham & N. Ey. Co., 213 Fed. 488; Winters V. Minneapolis & St. L, E. Co., — Minn. — , 6 N. C. C. A. 78n, 201n, 148 N. W. 106. 25. LouisvUle & N. E. Co. v. Stewart, 156 Ky. 550, 6 N. C. C. A. 79n, 447n, 450n, 454n. 26. Kansas City S. Ey. Co. v. Cook, 100 Ark. 467. 272 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS lield sufficient.^''^ A petition, in an action by an administrator under the federal act, alleging that the railroad on which decedent was killed ran from one state to another, that he was killed in making up a train to be moved to another state and that the defendant ran trains over the state line, contained a suflScient statement as to the applicability of the federal act in connection with other facts showing negligence and dependency.^^ A petition for per- sonal injuries against a railroad company which alleged that the company was a corporation of the state, that the injured employe was working on a 27. Grand Trunk W. Ey. Co. v. Lindsay, 233 U. S. 42, 58 L. Ed. 838, 6 N. C. C. A. 90, 91n, Ann. Cas. 1914 C 168n. A complaint in an action against a common carrier by railroad for injuries to a brakeman stated that the defendant was a railroad corporation engaged in interstate commerce and alleged that the brakeman was injured by reason of the carelessness of the engineer in permitting the water to become low on the crown sheet of the locomotive and then suddenly injecting water into the boUer which caused a sudden and extreme amount of steam to be generated and caused the crown sheet to drop into the fire box, producing a loud report and noise, which led the brakeman to believe he was in danger of great bodUy harm, and, acting on that belief, jumped from the window of the cab and was injured. It was held that the com- plaint stated sufficient facts to show a cause of action either under the state statute or under the federal statute. Vandalia E. Co. v. Stringer, — Ind. — , 106 N. E. 865. The court in the ease just cited decided that the plaintiff in an action for injuries is only required to plead the facts and that a recovery may be then had according as the evidence may develop a case under the one liability or the other. Wliile the complaint in this case may have been suf- ficient under the laws of the state, yet it was not sufiScient to show a cause of action under the federal statute as there was no allegation or facts pleaded showing that the injured employe at the time of the injury was employed in interstate commerce although there was an allegation that the raUroad company was so engaged. 28. Fort Worth & D. C. Ey. Co. v. Stalcup, — Tex. Civ. App. — , 167 S. W. 279 J Hackett v. Chicago, I. & L. E. Co., 170 111. App. 140. PLEADINGS 273 bridge whicli formed a part of the track and roadbed of the railroad company and that while so engaged he was injured, was held to have stated a cause of action under the federal act although the petition did not state that the company was engaged in interstate commerce.^^ A complaint alleging that the defendant, as a common carrier by railroad, owned a line of railroad from a point in one state to a point in another and that the plaintiff while work- ing on a passenger train on said road, was injured in a headon collision due to the negligence of the de- fendant, stated a cause of action under the federal act.^^ A complaint stating that the plaintiff, when he was injured, was employed as a fireman on a passenger train running from Chicago, Illinois, to Milwaukee, Wisconsin, was held sufficient to show that the company was engaged in interstate com- merce and that the plaintiff was employed by it in such commerce. ^^ § 156. Allegation to Show Cause of Action Under the Federal Act Held Not Sufficient. — An allegation that '*at the time of the injuries hereinafter com- plained of, your petitioner was engaged in the trans- portation of interstate commerce" was held not to state a cause of action under the National Employers ' Liability Act for the reason that there was no further allegation that the railroad company was a common carrier by railroad engaged in interstate commerce 29. Mcintosh v. St. Louis & S. F. Ry. Co., — Mo. App. — , 168 S. W. 821. The correctness of this ruling is doubtful. 30. Seaboard A. L. Co. v. Dnvall, 225 U. S. 477, 56 L. Ed. 1171. 31. Eowlands v. Chicago N. W. Ey. Co., 149 Wis. 51. Boberts Liabilities — 18 274 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS at tlie time of the injury.^^ In another case it was alleged in the petition that the plaintiff was injured through the negligence of a co-employe, while load- ing rails on a car. The petition did not disclose where the rails came from or where destined or the destination of the car after being loaded or whether the rails were old or new. The court held that the allegation was insufficient to show employment in interstate commerce. ^^ § 157. In Cases of Death Petition Must Allege Sur- vival of Beneficiaries Named in Statute. — Unless the petition shows, in case of death, that the deceased left a widow, child, parent or dependent next of kin, naming them, it does not allege a cause of action under the federal act.^^ Where the petition failed to allege that decedent left any of the beneficiaries for whose benefit a right of action survives under the federal act, the petition is defective even though it is alleged that by reason of the facts alleged a cause of action had accrued to plaintiff against defendant under and by virtue of that act.^^ If the petition in an action under the federal act fails to allege that the decedent is survived by a person or persons coming within one of the three classes men- 32. Walton v. Southern Ry. Co., 179 Ted. 175 ; contra, Mcintosh v. Wabash E. Co., — Mo. App. — , 168 S. W. 821. 33. Tsmura v. Great N. R. Co., 58 Wash. 316, 3 N. C. C. A. 786n. 34. North Carolina Ry. Co. v. Zachary, 232 U. S. 248, 58 L, Ed. 591, 6 N. C. C. A. 194n, Ann. Cas. 1914 C 159n; Michigan C. E. v. Vreeland, 227 U. S. 59, 57 L. Ed. 417, 3 N. 0. C. A. 807, Ann. Cas. 1914 C 176n; Gulf C, etc., Ey. Co. v. McGinnis, 228 U. S. 173, 57 L. Ed. 785, 3 N. C. C. A. 806, 4 N. C. C. A. 926n; Thomas v. Chicago & N. W. Ry. Co., 202 Fed. 766, 6 N. C. C. A. 439n, 446n. 35. Thomas v. Chicago & N. W. Ry. Co., 202 Fed. 766, 6 N. C. C. A., 439n, 446n. PLEADINGS 275 tionecl in the statute it is bad on demurrer.^^ The petition must state, in case of death, how many chil- dren there are and their ages.^^ § 158. Petition Must Allege Pecuniary Loss to Beneficiaries. — In any action under the federal act for the negligent death of a deceased employe, the petition must allege that the beneficiaries named, suffered pecuniary loss from the death. The federal statute does not presume that any of the beneficiaries are dependent upon the decedent, and as the statute is compensatory, and not penal, such a fact must be alleged as proof of it is required.^^ But where a declaration was defective because of the omission of this necessary allegation, and the point was not raised until the case reached the appellate court, it was held that the objection came too late.^** In affirming the decision of the federal circuit court of appeals in the Garrett case, cited in the notes, the Supreme Court of the United States said: "Where any fact is necessary to be proved in order to sustain the plaintiff's right of recovery, the declaration must contain an averment substantially of such fact in order to let in the proof. Every issue must be founded upon some certain point, so that the parties may 36. Illinois C. Ey. Co. v. Doherty's Adm'r, 153 Ky. 363, 6 N. C. C. A. 75n, 440n, 444n, 47 L. E. A. (N. S.) Sin. 37. Chesapeake & O. Ey. Co. v. Dwyer's Adm'x, 157 Ky. 590, 6 N. C. C. A. 449n. 38. Garrett v. Louisville & N. E. Co., — U. S. — , 35 Sup. Ct. 32, affirming same case reported in 117 C. C. A. 109, 197 Fed. 715, 3 N. C. C. A. 769, 4 N. C. C. A. 925n ; Michigan C. E. Co. v. Vreeland, 227 U. S. 59, 57 L. Ed. 417, 3 N. C. C. A. 807, Ann. Cas. 1914 C 176n; Gulf C. & S. F. Ey. Co. v. McGinnis, 228 U. S. 173, 57 L. Ed. 785. 3 N. C. C. A. 806, 4 N. C. C. A. 926n. 39. Illinois C. E. Co. v. Porter, 207 Fed. 311, 6 N. C. C. A. 98n, 205n. 276 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS come prepared with their evidence, and not be taken by surprise, and the jury may not be misled by the introduction of various matters. Bank of United States V. Smith, 11 Wheat. (U. S.) 171, 174, 6 L. Ed. 443, 444; Minor v. Mechanics' Bank, 1 Pet. (U. S.) 46, 67, 7 L. Ed. 47, 56; DeLuca v. Hughes, 96 Fed. 923; Eose V. PeiTy, 8 Yerg. (Tenn.) 156; Citizens' Street K. Co. V. Burke, 98 Tenn. 650, 40 S. W. 1085, 2 Am. Neg. Rep. 459; 1 Chitty, PI. 270. * * * The plaintiff 's declaration contains no positive avennent of pecuniary loss to the parents for whose benefit the suit was instituted Nor does it set out facts or cir- cumstances adequate to apprise the defendant with reasonable particularity that such loss in fact was suffered. Common experience teaches that financial damage to a parent by no means follows as a neces- sary consequence upon the death of an adult son. The plaintiff expressly declined in both courts below so to amend his declaration as to allege pecuniary loss to the parents; and judgment properly went against him. The request is now made that, in view of all the circumstances, especially the former unde- termined meaning of the statute, this court remand the cause for a new trial upon the declaration being so amended as to include the essential allegation. But we do not think such action would be proper. The courts below committed no error of which just complaint can be made here; and the rights of the defendant must be given effect, notwithstanding the unusual difficulties and uncertainties with which counsel for the plaintiff found himself confronted. ' ' PLEADINGS 277 § 159. In Suits Under State Laws, Applicability of Federal Act May be Ra-ised by Answer. — In any action against a common carrier by railroad by an employe for personal injuries due to negligence, it will be presumed, in the absence of allegations to the contrary in the petition, that the plaintiff is seek- ing a remedy under the laws of the state and not under the federal act.^° However, if the injury occurred or the death happened while the common carrier was engaged in interstate commerce and the injured employe was working for it in such com- merce, such facts may be set up in the answer by the defendant and, if proven, will defeat the plaintiff's attempt to recover under the laws of the state.^^ § 160. Where Petition Is Under State Law and Evidence Shows Case Under Federal Statute, Plain- tiff Cannot Recover. — Wlien the petition in an action by an injured employe against a common carrier by railroad for damages, states facts which constitute a cause of action solely under the laws of a state, and the plaintiff's evidence discloses that at the time he was injured the plaintiff was engaged in interstate commerce and that the defendant was so engaged, there is a fatal variance between the plead- 40. Bradbury v. Chicago, E. I. & P. Ey. Co., 149 Iowa 51, 40 L. E. A. (N. S.) 684n; Erie E. Co. v. Welsh, — Ohio St. — , 6 N. C. C. A. 77n, 188n, 105 N. E. 190; Missoiu-i, etc., Ey. Co. v. Neaves, — Tex. Civ. App. — , 127 S. W. 1090; Missouri, etc., E. Co. v. Hawley, — Tex. Civ. App. — , 123 S. W. 726; Fleming v. Norfolk S. Ey. Co., 160 N. C. 196, 6 N. C. C. A. 78n, 229ii; NeU v. Idaho E. Co., 22 Idaho 74. 41. Seale v. St. Louis, S. F. & T. E. Co., 229 U. S. 156, 57 L. Ed. 1129, Ann. Cas. 1914 C 156n, reversing same case reported in — Tex. Civ. App. — , 148 S. W. 1099; Eich v. St. Louis & S. F. E. Co., 166 Mo. App. 379. 278 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS ing and the proof, because tlie case pleaded is not the case proven and the case proven is not the case pleaded. If the defendant, therefore, raises the objection in the proper manner according to the rules of the state where the action is pending, the plaintiff cannot recover and the defendant is not estopped from raising the point although he pleaded in his answer defenses which are solely applicable to the laws of the state.^^ In the case of Scale v. St. Louis, 42. Seale v. St. Louis, S. F. & T. E. Co., 229 U. S. 155, 57 L. Ed. 1129, 3 N. C. C. A. 800, Ann. Cas. 1914 C 156n; Moliter v. Wabash R. Co., 180 Mo. App. 84, 6 N. C. C. A. 75n, 87n, Sin, 86n, 233n; Winfred v. Northern P. E. Co., 227 U. S, 296, 57 L. Ed. 518, affirming 173 Fed. 65 ; Gaines v. Detroit, G. H. & M. Ey. Co., — Mich. — , 6 N. C. C. A. 202n, 148 N. W. 397 ; Midland V. E. Co. v. Ennis, — Ark. — , 6 N. C. C. A. 80n, 234n, 159 S. W. 215. In Toledo, St. L. & W. E. Co. v. Slavin, — U. S. Sup. Ct. — , decided February 23, 1915, an action by an employe against a com- mon carrier by railroad for personal injuries, neither the plaintiff 'a complaint nor the defendant's answer contained any reference to the Federal Employers ' Liability Act. But notwithstanding this failure to plead the Federal Act in the answer, evidence was admitted, over plaintiff's objection, which showed that the train on which plaintifC was riding at the time of the injury was engaged in interstate commerce. After the intioduction of this evidence, the railroad company insisted that the case was governed by the Federal Act and moved the court for a directed verdict in its favor. This request having been refused, the defendant asked the court to give to the jury in its charge several applicable extracts from the Federal Statute. These requests were refused, the trial court holding that the state law governed as to assumption of risk. A verdict for the plaintiff resulted. On a writ of error from a common pleas court where the case was tried to the circuit court, the latter court held that as the plaintiff was injured while engaged in interstate com- merce, the cause was governed by the Federal Statute and the common law rule of assumption of risk applied and that the defendant 's motion for a directed verdict should have been granted. On appeal to the Supreme Court of Ohio the judgment of the circuit court was reversed and that of the common pleas court was affirmed. In reversing the judgment of the Supreme Court of Ohio, the United PLEADINGS 279 S. F. & T. R. Co., cited iu the notes, the plaintiff's petition stated a cause of action under the statute of the state, but the evidence disclosed that the decedent was killed while engaged in interstate com- merce. The court reversed the judgment and said: ''It comes, then, to this: the plaintiffs' petition, as ruled by the state court, stated a case under the state statute. * * * When the evidence was adduced it developed that the real case was not controlled by states Supreme Court held that if a suit is brought under a state law and the evidence shows that the federal act is applicable, there can be no recovery. The court said: * ' The ease having been brought here by writ of error, counsel for the plaintiff, Slavin, insists that the judgment of reversal, without opinion, should not be construed as meaning that the State coui't decided the Federal question adversely to the Company's claim; but rather as holding that the defendant's failure to plead the Employers' Liability Act made it improper to consider evidence that the plaintiff had been engaged in interstate commerce, and, hence, that there was nothing properly in this record to support the con- tention that the defendant had been deprived of a Federal right. But a controlling Federal question was necessarily involved. For, when the plaintiff brought suit on the State statute the defendant was entitled to disprove liability under the Ohio Act, by showing that the injury had been inflicted while Slavin was employed in interstate business. And, if without amendment, the case proceeded with the proof showing that the right of the plaintiff and the liabiUty of the defendant had to be measured by the Federal statute, it was error not to apply and enforce the provisions of that law. In this respect the case is much like St. Louis, etc., Ey. v. Seale, 229 U. S. 156, 161, where the suit was brought under the Texas statute, but the testimony showed that the plaintiff was injured while engaged in interstate commerce. The court said: 'When the evidence was ad- duced it developed that the real case was not controlled by the State statute but by the Federal statute. In short, the case pleaded was not proved and the case proved was not pleaded. In that situation the defendant interposed the objection, grounded on the Federal statute, that the plaintiffs were not entitled to reco^er on the case proved. We think the objection was interposed in due time and that the State court erred in overruling it.' The principle of that 280 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS the state statute, but by the federal statute. In short, the case pleaded was not proved, and the case proved was not pleaded." § 161. Defendant in Suit Under State Law Must Specifically Plead Federal Act to Defeat Recovery. — On the other hand, if the plaintiff's petition states a cause of action under the laws of the state and his evidence establishes and is in harmony with the alle- gations of his petition, the fatal variance in plaintiff's proof, which appeared in the cases cited in the pre- ceding paragraph, is non-existent and the defendant in order to defeat a recovery under the state law by showing that the case is one arising under the federal act, must plead the facts showing, that the plaintiff at the time of the injury, was employed in interstate cormnerce and that the carrier was so engaged at decision and others like it is not based upon any technical rule of pleading but is matter of substance, where, as in the present case, the terms of the two statutes differ in essential particulars. Here the Ohio statute abolished the rule of the common law as to the assumption of risks in injuries occasioned by defects in tracks, while the Federal statute left that common law rule in force, except in those instances where the injury was due to the defendant's violation of Federal statutes, which — lite the Hours of Labor Law and the Safety Appliance Act — were passed for the protection of interstate employees. Seaboard Air Line v. Horton, 233 U. S. 492, 503. In aU other respects this case is exactly within the ruling in the case last cited, where the employee's knowledge of the existence of the defect and the terms of the State statute relied on were substantially the same as those in the present case. There the judgment of the State court — applying the State statute — was reversed because it appeared, as it does here, that the plaintiff had been injured while engaged in interstate commerce and, consequently, the case should ha\e been tried and determined according to the Federal Employers' Liability Act. The judgment of the Supreme Court of Ohio is reversed and the case remanded for further proceedings not inconsistent with this opinion," PLEADINGS 281 the same time. Unless such a plea is made such evidence is not admissible on behalf of the defend- ant.^^ Where the defendant files such a plea in an amended answer after the evidence was all in it was held not to be in abuse of discretion for the trial court on motion of plaintiff, to strike out the amend- ment.^^ Cases holding that when a widow is suing in her individual capacity for the death of an inter- state employe, her want of capacity to sue may be raised at any stage of the proceedings without the point being raised by answer, are not in conflict with the cases just cited for the reason that the defeat or want of legal capacity appears on the face of plain- tiff's pleadings.^ ^ § 162. When Amendment of Petition Permissible After Two- Year Period of Limitation. — Where a mother, the sole heir and dependent of a deceased employe, a single man, sued in her individual 43. lUinois C. E. Co. v. Nelson (C. C. A.), 212 Fed. 69; Bradbury v. Chicago, E. I. & P. Ey. Co., 149 Iowa 51, 40 L. E. A. (N. S.) 684n; Erie E. Co. v. Welch, — Ohio — , 6 N. C. C. A. 77n, 188n, 105 N. E. 189; Fleming v. Norfolk S. E. Co., 160 N. C. 196, 6 N. C. C. A. 78n, 229n; Chicago, E. I. & P. Ey. Co. v. McBee, — Okla. — , 145 Pac. 331; Chicago, E. I. & P. Ey. Co. v. Eogers, — Tex. Civ. App. — , 150 S. W. 281; Bitondo v. New York, C. & H. H. Co., 163 App. Div. (N. Y.) 823; contra, Gray v. Chicago & N. W. Ey. Co., 153 Wis. 636, 4 N. C. C. A, 225n; Vandalia E. Co. v. Stringer, — Ind. — , 106 N. E. 865. 44. Bradbury v. Chicago, E. I. & P. E. Co., 149 Iowa 51, 40 L. E. A. (N. S.) 684n. 45. Vaughn v. St. Louis & S. F. E. Co., 177 Mo. App. 155, 6 N. C. C. A. 75n, 438, 439n ; Missouri, K. & T. Ey. Co. v. Lenahan, 39 Okla. 283, 6 N. C. C. A. 75n, 78n, 437n; Dungan v. St. Louis & S. F. E. Co., 178 Mo. App. 164, 6 N. C. C. A. 438, 439n; LaCasse v. New Orleans, T. & M. E. Co., — La. — , 6 N. C. C A. 196n, 437n, 64 So. 1012 ; Southern Ey. Co. V. Howerton, — Ind. — , 101 N. E. 121; American E. Co. v. Birch, 224 U. S. 547, 56 L. Ed. 879; Cincinnati, N. 0. & T. P. Ey. Co. V. Bonham, — Temi. — , 171 S. W. 71. 282 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS capacity and in her first and original petition, suffi- ciently averred that his death was caused by injuries while the carrier was engaged and he was employed in interstate commerce, but also in her petition re- ferred to and asserted a right to sue under the laws of Kansas, an amendment of the petition after the two-year period of limitation, permitting her to sue as administratrix as required by the federal act, was properly allowed.^*^ In the Wulf case the decedent was a locomotive fireman on a train bound from Kansas into Oklahoma and these facts, constituting employment in interstate commerce, appeared in the original petition. Notwithstanding the fact that the plaintiff erroneously, under the facts stated in her petition, asserted her right to recover under the state laws, yet the court, when the facts stated in her 46. Missouri, K. & T. E. Co. v. Wulf, 226 U. S. 570, 57 L. Ed. 355, 6 N. C. C. A. 230n, 237n, Ann. Cas. 1914 B 134n, affirming same case in 192 Fed. 919 ; accord, Bixler v. Pennsylvania R. Co., 201 Fed. 553 ; Eeardon v. Balaklala C. C. Co., 193 Fed. 189; Atlanta, K. & N. E. Co. V. Smith, 1 Ga. App. 162. In an action by a brakeman against a common carrier by railroad, the cause was reversed on appeal because the braieman was guilty of such contributory negligence as to bar a recovery. (Cincinnati, N. O. & T. P. Ey. Co. v. Goode, 153 Ky. 247.) On motion for re- hearing, the court held, in view of the fact that ,the evidence dis- closed the brakeman was engaged in interstate commerce at the time of the injury and that the remedy provided by the federal act was exclusive, that the cause should be reversed so the plaintiff, if he deemed it advisable, might amend his petition. (Cincinnati, N. O. & T. P. Ey. Co. v. Goode, 155 Ky. 153.) Upon the return of the case to the trial court, after being so remanded, the plaintiff filed an amended petition setting out more distiuctly than he did in his original petition, facts sufficient to bring his case within the scope of the federal act. The amended petition was filed more than two years from the date of the injury. To this petition the defendant filed an answer in which it pleaded the statute of limitation because the PLEADINGS 283 petition showed liability exclusively under the fed- eral act, would take judicial notice that the state law mentioned in the petition, was superseded by the federal act and that the cause of action was not changed any more than if the plaintiff had referred to any other repeal statute. Aside from the capacity in which she sued, there was no substantial difference between the original and the amended petition, the same state of facts as to interstate commerce being alleged in both. The change was in form rather than in substance nor did the amended petition set up any different state of facts as the ground of action and therefore the amended petition related back to the beginning of the suit. This case has been sometimes cited as authority for the proposition that a petition setting up no facts, showing the engagement of the carrier and the employment by it of the servant in injury occurred in March, 1910, more than two years before the filing of the amended petition in November, 1913. In sustaining the right of the plaintiff to so amend the petition, the Kentucky Court of Appeals said : ' * The original action was brought within two years from the time of the injury eomplain.ed of and unless the amended petition filed in November, 1913, set up some new and dis- tinct cause of action it should be treated as a part of the original petition and relate back to the date when it was filed. An inspection of these pleadings shows very clearly that the amended petition did not set up or attempt to set up any new cause of action or any cause of action that was not relied on in the original petition. In fact, the original petition stated a good cause of action under the federal statute; but both parties after the filing of the petition, seemed to treat the case as falling under the state law, and it pro- ceeded to judgment in that way. The amended petition merely re- iterates the averments of the original petition, setting out perhaps more fully than it did the facts showing that the cause of action arose under the federal statute. This being so, the trial court did not err in ignoring the plea of limitation. ' ' Cincinnati, N. O. & T. P. E. Co. v. Goode, — Ky. — , 173 S. W. 329. 284 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS interstate commerce at the time of the injury, may be amended even after the two-year period of limita- tion provided by the federal act, so as to show a cause of action under the national statute. The decision, however, does not go to that length because the court found that the original petition sufficiently averred facts showing employment in interstate com- merce, the sole change being the capacity in which the plaintiff sued. The mere fact that the plaintiff referred to the Kansas statute in her petition as authorizing the recovery, the court treated as nuga- tory in view of the other facts showing liability under the national act. A former casC*"^ in which the plaintiff sued under the common law and sought after the limitation period to amend by basing his cause of action on the statute of Kansas, was dis- tinguished, in that the ground of recovery was changed, and the court, the suit being tried on re- moval in a federal court in Missouri, would not take judicial notice of a Kansas statute.^^ 47. Union P. R. Co. v. Wyler, 158 U. S. 285, 39 L. Ed. 983. 48. After the decision of the Texas CivU Court of Appeals was reversed in the United States Supreme Court in St. Louis, S. F. & T. Ry. Co. V. Seale (229 U. S. 156, 57 L. Ed. 1129, 3 N. C. C. A. 800, Ann. Cas. 1914 C 156), one of the plaintiffs in that suit, the widow of the decedent, intermarried with one Smith, and after the return of the mandate from the United States Supreme Court, she was appointed administratrix of his estate and thereafter upon motion she was sub- stituted as party plaintiff in lieu of the original parties plaintiff. She then immediately filed an amended petition, in which she prose- cuted the action as the personal representative of the deceased. As administratrix she obtained another verdict which was affirmed on appeal, the court holding that the amendment was proper even after the two-year period of limitation. St. Louis, S. F. & T. Ry. Co. V. Smith, 171 S. W. 512, 160 S. W. 317. Whether the Supreme Court of the United States will sustain such an amendment when it decided PLEADINGS 285 § 163. When Amendments After Limitation Period Not Allowed. — But where an action for wrongful death was brought by deceased's widow as such, under a state statute giving her alone the right of action, for her sole benefit, an amendment to the declaration, changing the relation in which she sues from that of widow to that of administratrix, for the benefit of herself as widow and her children, and changing her cause of action to one under the Federal Employers' Liability Act, while permissible, yet, if made under the limitation period under the latter statute, does not relate back to the time of the com- mencement of the original action so as to avoid the bar of the statute of limitation, being in effect the bringing of a new action under the federal statute.^^ The HaJl case cited is quite different from the Wulf case for here the widow was the sole party in the original petition; the widow and children were as- serting rights in the amended petition. Neither did the original petition state facts showing liability under the national act. In another case a brakeman brought an action against a railroad company which stated a cause of action under the common law. The injury occurred on February 29, 1904. Suit was that the original petition in the Seale case stated no facts showing the engagement of the company and the employment of the deceased in interstate commerce (229 U. S. 1. c 158, 57 L. Ed. 1. c. 1133) but on the other hand held that the original petition in the Wulf case stated facts showing such to be true (226 U. S. 1. c, 575, 57 L. Ed. 1. c. 363) remains to be seen. 49. Hall V. Louisville & N. E. Co., 157 Fed. 464, aff 'd 98 C. C. A. 664, 174 Fed. 1021. 286 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS brought on July 1, 1904. On January 21, 1909, the plaintiff asked leave to file an amended petition set- ting up a cause of action under the Federal Safety Appliance Act specifically under the section as to automatic couplers. Defendant objected to the allowance of the amendment on the ground that it introduced a new cause of action which was barred by the statute of limitation. The court sustained this assignment and held that the amended answer set up a new cause of action and was improperly allowed by the trial court and is barred by the statute of limitation. The court in passing upon the propriety of the amendment said: "But, it will be observed, in the amendment there was a departure, not one from the facts as allowed in the original statement, but also from the law as applicable to the facts in the original statement. In other words, there was a departure, not one from fact to fact, but from law to law. * * * The original statement, it is true, averred the injuries of the plaintiff and the alleged negligence of the defendant by which they were caused but there was no intimation in the statement that the carrier was engaged in interstate commerce or that the defendant's cars were equipped with couplers in violation of the Act of Congress. Proof of the existence of these two additional facts was required to sustain the action as amended, and this is one of the decisions in determining whether the amendment introduced a different cause of action. It is apparent that without this amendment the Act of Congress could have had no place in the case, and PLEADINGS 287 could not liave been invoked to deprive the company of its defense that the plaintiff assumed the risks or dangers of his employment. ' ' ^" 50. Allen v. Tuscorora V. R. Co., 229 Pa. 97, 30 L. R. A. (N. S.) 109611, 140 Am. St. Rep. 714. The court in its decision followed Union P. Ry. Co. v. Wyler, 158 U. S. 285, 39 L. Ed. 983. CHAPTER XII EVIDENCE UNDER FEDERAL ACT § 164. Eules of Evidence Governed by State Law. § 165. Law of Foriun Determines Whether Widow or Other Bene- ficiaries May Testify. § 166. State Law Not Applicable in Passing on Demurrer to the Evidence. § 167. Eecord Evidence of Interstate Shipments — Statutory Provision and Order of Interstate Commerce Commission. § 168. Method of Proving When Train and Switching Crews Are Engaged in Interstate Commerce. § 169. Method of Proving When Other EaUroad Employes Are Engaged in Interstate Commerce. § 170. Evidence Held Sufficient to Show That Train Was Carrying Interstate Commerce. § 171. Evidence Held Not Sufficient to Show That Train Was Carrying Interstate Commerce. § 164. Rules of Evidence Governed by State Law. — In all actions against common carriers by railroads under the Federal Employers' Liability Act, prose- cuted in state courts, the rules of evidence enforced in the federal courts do not control, for the reason that the law of evidence is a part of the law of procedure and the procedure is always governed by the law of the.forum. The Supreme Court of Arkan- sas, in the case cited in the notes, stated the rule as follows : " It is a well-established rule that, in actions in a state court to enforce rights given by a federal statute, the rules of evidence of the state court must control unless otherwise provided by the federal law."i 1. Kansas City S. Ey. Co. v. Leslie, — Ark. — , 6 N. C. C. A. 446, 447n, 453, 454n, 167 S. W. 83. 288 EVIDENCE 289 § 165. Law of Forum Determines Whether Widow or Other Beneficiaries May Testify.— Whether a widow or other beneficiary named in either one of the three classes under the federal statute, may testify in any action brought by an administrator in their behalf, is to be determined by the law of th*; state where the action is pending. Applying this rule, the Supreme Court of North Carolina held that a mother of a deceased employe, killed while em- ployed in interstate commerce, was a competent wit- ness in an action brought under the federal act by an administrator, for his death.- §166. State Law Not Applicable in Passing on Demurrer to the Evidence. — In all actions prosecuted under the federal act in state courts, the question whether there has been sufficient evidence intro- duced to justify the trial court in submitting the case to the jury is not to be detei-mined by the laws of the state nor the decisions of its courts, but by the controlling decisions of the national courts, as such a question is not one of procedure but one which involves the substantive rights of the parties.^ § 167. Record Evidence of Interstate Shipments- Statutory Provision and Order of Interstate Com- merce Commission. — The Act of Congress regulating interstate commerce empowers the Interstate Com- merce Commission to prescribe the forms of all ' ' ac- countings, records and memoranda of the movement of traffic" made by common carriers engaged in 2. Ii-vin V. Southern Ey. Co., — N. C. — , 80 S. E. 78. 3. St. Louis, I. M. & S. Ey. Co. v. MeWhirter, 229 U. S. 265, 57 L. Ed. 1179, reversing same case reported in 14:5 Ky. 427. Roberts Liabilities — 19 290 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS interstate commerce.^ The statute also provides that any carrier ''who shall wilfully neglect or fail to make full, true and correct entries in such ac- countings, records or memoranda of all facts and transactions appertaining to the carrier's business" shall be deemed guilty of a crime. It is further pro- vided in the statute that the Interstate Commerce Commission may issue orders specifying such oper- ating records, books, blanks, tickets, stubs or docu- ments of carriers which may, after a reasonable time, be destroyed, and prescribe the length of time such books, papers or documents shall be preserved. Pursuant to the authority given in this statute, the Interstate Commerce Commission has issued and formulated a general order regulating the destruc- tion of all records on steam roads.^ § 168. Method of Proving When Train and Switch- ing Crews are Engaged in Interstate Commerce. — While courts have without objection permitted oral e\ddence to show that trains contained interstate shipments, yet in view of the fact that a permanent record of such transactions are required by statute to be made and preserved by all common carriers engaged in interstate commerce, they may hold, even in actions under the Federal Employers' Liability Act, if objection is made, that oral evidence is not 4. Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 ; Act, Feb. 25, 1909, c. 193, 35 Stat. 649. 5. Order regidating destruction of records of steam roads in accord- ance with § 20 of the Act to regulate commerce issued on the first day of June, 1914, and effective on the first day of July, 1914, superseding and cancelling orders dated June 10, 1910, June 8, 1911, and October 7, 1912. EVIDENCE 291 admissible on the ground that it is not the best evidence.*^ As all members of train crews and switch- ing crews are not engaged in interstate commerce unless there are interstate shipments in the train, or ''drags" in switching yards, upon which they are employed, plaintiffs in actions under the federal act must therefore produce evidence showing such em- ployment. Assuming that oral proof is admissible, yet often such evidence is not available and the plain- tiff", or the defendant in seeking to show that the federal act does not apply, must produce some record showing that there were interstate shipments on the train. All railroad companies keep and maintain a multitude of records concerning the transportation of all freight and passengers. They are required by law to be faithfully and accurately kept and most of them must be preserved for six years under the order of the Interstate Commerce Commission. Re- lating to the transportation of freight and pas- sengers, the records usually kept are the dispatcher's records, records of hours of service, conductor's train and car reports, commonly known as wheel reports, freight waybills, bills of lading and ticket and baggage records. Most of these records are kept in the office of the superintendent at division points. The records of the dispatchers are commonly known 6. Pfeiffer v. Oregon-Washington E. & N. Co., — Ore. — , 144 Pac. 762, 7 N. C. C. A. 685. Notwithstanding a raih-oad company keei)s records showing the origin and destination of every loaded or empty car in a train, yet it is competent for a conductor to testify orally that some of the cars in the train were destined to points beyond the state. Devine V. Chicago, E. I. & P. E. Co., — lU. — , 107 N. E. 595. 292 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS as train sheets in which are kept a daily record show- ing the movement of all trains over the division, time of departure and arrival at each station, num- ber of train, names of engineer and conductor with number of cars in the train. Eegisters are also kept in which entries are made by all train employes showing number of hours the employes were on duty. These registers show the train upon which the em- ploye worked, the number of cars on the train, whether loaded or empty, and between what points the train was operated. On all trips between ter- minals conductors are generally required to make out and deliver at destination points wheel reports which show the date the trains moved, the number of the trains, the initials and number of cars, the initial and destination point on each car over the division and the mileage of the cars and train. These wheel reports are required to be kept for three years if transcribed into other records and if not so trans- scribed, for six years. Every common carrier en- gaged in interstate commerce is also required to issue a receipt or bill of lading for all shipments. The originals of these contracts are usually delivered to the shipper and duplicate copies are retained by the carrier. In addition to these bills of lading the carrier makes out for each shipment a waybill which waybill accompanies the car from point of origin to point of destination and is handled successively by the conductors of the trains in which the shipment is carried and usually by foremen of the switching crews at tei-minal points. Carbon copies of all such waybills are kept at the point of origin. There EVIDENCE 293 are three classes of waybills, local waybills, that is, where the shipment is between two points on the same line, interline waybills where cars are trans- ported by more than one carrier and company freight waybills which denotes that merchandise carried belongs to the railroad company. In addition to these there are baggage records showing the initial and destination point of all baggage shipped. These are required to be retained for a period of three years. All these records may be obtained by subpoena duces tecum served upon the officers of the company in charge of the records called for in the subpoena. § 169. Method of Proving When Other Railroad Employes are Engaged in Interstate Commerce. — Proof that the line upon which they are working, is used by the railroad company indiscriminately in moving both interstate and intrastate commerce, is sufficient to show that such employes as linemen, signalmen, bridge carpenters, section men and simi- lar employes are employed in interstate commerce. In the same way, to show that car repairers and engine repairers are engaged in interstate commerce, it is sufficient for the evidence to disclose that the car or the engine upon which they were at work when injured, was used indiscriminately in moving both kinds of commerce. § 170. Evidence Held Sufficient to Show That Train was Carrying Interstate Commerce. — In an action under the federal act tlie plaintiff testified that he was an engineer and had been hauling certain pas- senger trains, calling them by number, for several 294 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS years, one running east and the other west. He spoke of them as through passenger trains. Another witness testified that the plaintiff was an engineer for the defendant, running on the ''Black Hills Divi- sion;" such division, he said, being west of Long Pine, with headquarters at Chadron. The action was being prosecuted in the state courts of Nebraska and the question was presented to the court whether this evidence was sufficient to show that the plaintiff was an engineer on an interstate train. The court said : * ' While the evidence of the interstate character of trains, three and six, is not as clear and satisfac- tory as it could and should have been made, we think it was sufficient to take the case to the jury on that point. * * * "WTe take judicial notice of the fact that the Black Hills are in South Dakota. We think we may also take judicial notice of the fact, well known to every citizen of even ordinaiy intelligence in the State of Nebraska, that the west terminus of defendant's road, which runs through Long Pine is in the Black Hills. With these facts established, and the further fact established by the evidence that Long Pine is the division point on the Black Hills division, of which Chadron is the headquarters, the testimony of plaintiff that trains three and six were through trains, meant that they were trains running through the Black Hills Division, which would be from Long Pine to the Black Hills. Being such trains, they were interstate trains, engaged in inter- state business."^ In an action prosecuted in the state 7. Bower v. Chicago & N. W. E. Co., — Neb. — , 6 N. C. C. A. 213n, 148 N. W. 145. EVIDENCE 295 courts of Texas for the death of an engineer who was killed while operating a train between two points in the State of Arizona, the plaintiff introduced testi- mony that the train on which the deceased was an engineer, consisted of fifty cars, most of them being loaded with oil and lumber ; that the defendant 's line ran from California through Arizona and New Mexico ; that most of the lumber and oil shipped by the defendant from the west came from California. In connection with this testimony, one of defendant's officers testified that if fifty cars were going east on the track where the engineer was killed, it was quite likely that the greater portion of them came from California. The court held that the evidence was sufficient to submit the case to the jury as to whether the decedent was engaged in interstate commerce at the time of the accident.^ § 171. Evidence Held Not Sufficient to Show That Train was Carrying Interstate Commerce. — Testi- mony is an employe 's action against common carrier by railroad under the federal statute, who was in- 8. Southern P. Co. v. Vaughn, — Tex. Civ. App. — , 165 S. W. 885, 7 N. C. C. A. 622. A switching foreman was employed in making up a train in a rail- road yard at Oelwein, Iowa. The train was destined to a point in Minnesota and some of the cars were to be set out at stations in Iowa. Some of the cars destined for points in Iowa originated in Iowa and some came from points in Illinois. Some of the cars des- tined to Minnesota originated in Iowa and some came from Illinois. All these cars, both intrastate and interstate, were being switched into the train at the time the foreman was killed while en- gaged in such work. The court held that these facts were sufficient to show that the foreman was engaged in interstate commerce as a matter of law. Crandall v. Chicago & G. W. E. Co., — Minn. — , 150 N. W. 165. 296 INJUEIES TO INTERSTATE EMPLOYES ON RAILROADS jured while on a train running between two points in the same state, that it was customary for train men to mark on cars the number or the name of the station to which they were destined, that one of the cars had marked on it with chalk the name of a town in an adjoining state on the defendant's line of rail- way was not sufficient to show that the car was being moved from a point" in one state to a point in an- other.^ Discussing the sufficiency of such evidence 9. Barker v. Kansas City, M. & O. Ey. Co., — Kan. — , 88 Kan. 767, 129 Pac. 115L The Supreme Court of Kansas on the second appeal in the case of Barker v. Kansas City, M. & O. Ey. Co. (— Kan. — , 146 Pac. 358, decided Feb. 6, 1915), held that a fireman on a switch engine hauling cars of company coal between two points in the same state, which was to be used later in firing engines pulling interstate trains was not engaged in interstate commerce. This decision seems to be in conflict with cases decided by other courts (§37, supra). In holding that the fireman was not engaged in interstate commerce, the court on the second appeal, said: "The plaintiff was the fire- man of a switch engine. The crew was ordered to take the engine from Altus, Oklahoma, where it was in use, to Clinton, Oklahoma, to have some work done upon it. The day following, on the return trip from Clinton to Altus, the derailment occurred which caused the plaintiff's injuries, and at this time the train consisted, besides the engine, of one water car and nine cars loaded with coal. The defendant concedes that it was engaged generally in the business of transporting interstate commerce on its line of railway between Altus, Oklahoma, and Wichita, Kansas, but denies that in hauling the coal or train in question it was transporting interstate com- merce. Stated in another way, the contention is that the work plaintiff was doing at the time of the injury had no real and sub- stantial connection with interstate commerce. On the second trial the jury found that the destination of the switch engine and train at the time the injury occurred was Altus, Oklahoma; that the des- tination of the water car was Dill City, Oklahoma; that the train started from Clinton, Oklahoma; that the origin of the nine cars of coal was McCurtain, Oklahoma, and their destination, Altus, Oklahoma; consigned to N. J. O'Brien, Vice President of the Kan- sas City, M. & O. Ey. Co. of Texas, for use on engines running EVIDENCE 297 the court, in the case cited in the notes, said: ''But, assuming that at some time not shown and, by some person unknown, these words were upon the car in question, it could hardly be said that the natural, fair and reasonable inference to be drawn therefrom is that at the time in question this car was actually in process of transportation to a point in another state, and especially so when this was made the vital and determining question in the case." Evidence south of Altus into Texas, and for engines running north into Oklahoma. Plaintiff testified that they were taking the coal to Altus for use on engines running north into Oklahoma and south into Texas; that there was a coal yard at Altus kept by the com- pany; that coal of this kind taken to Altus would be scooped out of the cars onto the tenders of the engines. The decisions as to what will constitute interstate commerce in a case like this were quite fully reviewed in a former opinion (88 Kans. 767, 129 Pac. 1151, 43 L. E. A. (N. S.) 1121), and it will not be necessary to refer to them at length here. The findings in the present case are conclusive, and show that the movement of the coal from McCurtain to a consignee at Altus, Oklahoma, was intrastate. Of course, cases where the intention of the shipper when the property was first started in transit was to forward it to a foreign destination have no application to the facts of the present case. The cars were con- signed to Altus, Oklahoma, and there the shipment ended. The most that can be said is that the plaintiff was handling coal which at a later date might become a part of an instrumentality used in the transportation of interstate commerce. But this fact alone could not make him an employe engaged in interstate commerce. The several cars of coal being transported at the time plaintiff received liis injuries were to be unloaded at Altus, their bulk broken and some portions thereof afterwards were to be used for fuel on engines running into other states. The situation would be no different if, instead of coal, the shipment had consisted of articles intended to be used in the repair of a locomotive running from Altus into Texas. In such a case the mere fact that the consignee intended to attach articles to a locomotive engaged in interstate commerce would not make the shipment between Clinton, Oklahoma, and Altus, Oklahoma, interstate in character. ' ' Barker v. Kansas City, M. & 0. Ry. Co., — Kan. — , 146 Pac. 358. 298 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS that an employe was a watchman on an engine pull- ing a train between two points in the same state, was held not to be sufficient to show that the watchman while so engaged, was employed in interstate com- merce, as the court will not take judicial notice that a railroad is engaged in interstate commerce.^*' In the case cited the court said : ' ' While this court may properly, in certain cases, take judicial notice of the fact that anyone of the many great trunk lines of railway extending through the various states is en- gaged in interstate commerce, yet the fact is equally as notorious and as much the subject of judicial notices that every such railway is also engaged in intrastate traffic; and clearly it is not a matter of such general knowledge as to dispense with proof that any specific portion of the equipment or any particular employe of such railway is engaged in interstate, rather than intrastate commerce at any precise time or place. The only evidence in this case as to the character of commerce in which defendant and deceased were engaged, is that the engine which was being watched by, and exploded and caused the death of, the said John M. McBee was used in hauling a passenger train between points in this state. ' ' That the duties of a brakeman working for a common carrier by railroad generally consist- ing in assisting in the movement of cars containing both intrastate and interstate commerce, is not sufficient to create a jury issue on the question as to whether he was employed in interstate commerce, while assisting in shifting cars at the time of the 10. Chicago, K. I. & P. Ey. Co. v. McBee, — Okla. — , 145 Pac. 331. EVIDENCE 299 accident, the evidence being silent as to the character of freight with which the cars on which he was work- ing at the time of the accident, were loaded, what disposition had been made of the cars after their arrival and what kind of shipment, if any, they con- tained, and their destination.^^ 11. Hench v. Pennsylvania E. Co., — Pa. — , 91 Atl. 1056. CHAPTER XIII MATTERS OF PRACTICE UNDER FEDERAL ACT § 172. At What State of Proceedings, Motion to Elect Should Be Sustained — Practical Considerations. § 173. Motions to Elect Under Iowa Statute in Actions Under Federal Act. § 174. Instances Where Motion to Elect Should Have Been Sus- tained Before Trial. § 175. Widow Suing in Her Own Name in One Suit and as Admin- istratrix in Another, Cannot Be Compelled to Elect. § 176. Verdicts by Less Than Twelve Jurors, When Permissible Under State Law, Valid in Actions Under Federal Statute. § 177. When Suit Under State Law Is Ees Adjudicata. § 178. Errors in Actions Under Federal Act Held Harmless on Appeal. § 179. Plaintiff in Action Under Federal Act May Sue as a Poor Person in United States Courts, When. § 172. At What Stage of Proceedings, Motion to Elect Should Be Sustained — Practical Considera- tions. — When the plaintiff pleads a cause of action under the state law in one count and under the fed- eral law in another count, whether a motion to elect should be sustained before the trial, or at the close of the plaintiff's evidence, or upon the conclusion of all the evidence introduced, or should be denied altogether, presents some ques- tions of difficulty to trial courts. Counsel rep- resenting railroads have often insisted with some show of reason that since the plaintiff has al- leged facts in his petition showing the federal act applicable, the remedy therein provided is exclusive 300 PRACTICE UNDER FEDERAL ACT 301 and therefore a motion to elect should be sustained before proceeding to trial. Another reason advanced for such action by trial courts is, that the defenses under the two laws are sometimes quite dissimilar so that if compelled to go to trial under both counts, a hardship will result. But, on the other hand, as the plaintiff is permitted to plead the two laws alter- natively he ought to be permitted to have some of the practical benefits resulting from such a rule. To force him to elect before the trial, would practically be no benefit to him as the main purpose of stating a case alternatively is to have a pleading to fit the proof, whatever it might be. Sometimes the true facts as to such matters are not in the possession of the plaintiff while the defendant has the absolute means of knowing whether a train, for instance, has intrastate shipments or interstate shipments. It may be that under all the facts after the evidence is in, it is a doubtful question as to what kind of com- merce the plaintiff was employed in, that is, the facts may be such that different conclusions may be drawn therefrom by reasonable men. For instance, a ques- tion of fact might arise as to whether a train or a ''drag" on which an employe was working, con- tained interstate shipments, some witnesses denying and others affirming that to be true. In such a con- tingency the question whether the plaintiff was engaged in interstate or intrastate commerce is not a question of law for the court but a question of fact to be submitted to the jury under proper instruc- tions ^ and it would be an injustice to the plaintiff to 1. North Carolina E. Co. v. Zachary, 232 U. S. 248, 58 L. Ed. 591, 302 INJURIES TO INTERSTATE EMPLOYES ON RAILROiiDS require him to elect on which cause of action he would submit his case, even at the close of all the evidence. On the other hand, it may be that the facts stated in the petition as to such employment, are such that the court can determine the question as a matter of law or if at the close of the plaintiff's evidence, or at the close of all the evidence in the case, it appears as a matter of law that the plaintiff was employed in either one or the other kind of commerce, the trial court should then sustain a motion to elect if presented. No hard and fast rule can be laid down as to when a motion to elect should be sustained. Trial courts should take into con- sideration the rights and difficulties of both parties, and rule, without unnecessarily placing either party at a disadvantage in enforcing or protecting his rights. § 173. Motions to Elect Under Iowa Statute in Actions Under Federal Act. — The question as to when a motion to elect should be sustained, is a question of practice under the rules of the courts 6 N. C. C. A. 194n, Ann. Cas. 1914 C 159n, reversing the same case on other grounds reported in 156 N. C. 496; Southern P. Co. v. Vaughn, — Tex. Civ. App. — , 165 S. W. 885; Atkinson v. Bullard, — Ga. — , 6 N. C. C. A. 80n, I83n, 80 S. E. 220. "As already indicated, the fact that plaintiff was employed in interstate commerce was established. Such a question is usually a mixed question of law and fact, and often one more of law than of fact. The facts involved in such a question are usually simple. When they appear in the record without material dispute, it de- volves upon the court to construe the federal act in its application thereto. So in this case sufficient facts are undisputed to bring the case within the federal act. The jury, therefore, had nothing to do with the question. The court could properly have given a peremptory instruction thereon. ' ' Pelton v. Illinois C. R. Co., — la. — , 150 N. W. 236. PRACTICE UNDER FEDERAL ACT 303 of the states where the case is pending. As to mat- ters of procedure nnder the federal act, the decisions of the national courts do not control but the question is a matter governed by state law." A statute of the state of Iowa provides (§ 3545, Iowa Code, 1897): ''Causes of action of whatever kind, where each may be prosecuted by the same kind of proceed- ings, if held by the same party, and against the same party, in the same right, and if action on all may be brought and tried in that county, may be joined in the same petition; but the court may direct all or any portion of the issues joined to be tried separately, and may determine the order thereof. " In an action pending in a federal district court in the state of Iowa, the defendant, after the plaintiff had pleaded a cause of action under the state law in one count and under the federal act in another count, filed be- fore trial the motion requiring the plaintiff to elect upon which cause of action he would proceed to trial.^ The court held that under the statute men- tioned, a plaintiff who alleges a cause of action under the state law in one count and under the federal act in another count may, if the evidence is doubtful, submit both to the jury and may recover under whichever statute appears from the evidence to be 2. McAdow V. Kansas City W. Ey. Co., — Mo. App. — , 6 N. C. C. A. 76n, 206n, 233n, 164 S. W. 188; Wabash R. Co. v. Hayes, 234 U. S. 86, 58 L. Ed. 1226, 6 N. C. C. A. 224; Southern Ey. Co. v. Bennett, 233 U. S. 80, 58 L. Ed. 860. 3. Baakson v. Illinois C. E. Co., 196 Fed. 171. Where an employe brought a suit under the state law, and later under the federal statute because of doubt as to which afforded him a remedy, the cases should be consolidated for one trial. Tinkham v. Boston & M. E. Co., 77 N. H. 11, 6 N. C. C. A. Sin, 233n. 304 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS applicable. In passing upon the motion, Judge Eeed said : " It may be that at the time of filing her peti- tion she knows the acts of negligence upon which she relies for recovery; but whether they authorize a recoveiy under the Employers' Liability Act of Congress, or the general law of negligence, she may not then be able to determine; and the facts may be of such a character that they would have to be sub- mitted to the jury to determine whether the injury to the deceased occurred while he was engaged in interstate commerce, or while he was not so engaged. It may be that at the close of the testimony it will clearly appear that he was or was not engaged in interstate commerce, and that the court may then determine the question as one of law, or they may be such as to require the submission of the question to the jury to determine that question. If the defend- ant through its own neglect or some of its employes has inflicted an injury upon the deceased which caused his death, and it is legally liable therefor, whether that injury was inflicted while the decedent was engaged in interstate commerce, or while he was not so engaged, the defendant should respond there- for; but, of course, it can be required to respond but once, and whether or not the recovery shall be under the Employers' Liability Act of Congress for the benefit of the dependent relatives of the deceased, if there are any, or shall be for the benefit of his estate, the defendant is not particularly interested, except as this may bear on the amount of the recovery. ' ' §174. Instances Where Motion to Elect Should Have Been Sustained Before Trial. — If a state law PRACTICE UNDER FEDERAL ACT 305 differs so radically from the federal statute as to certain defenses, the plaintiff will be required to elect upon which cause of action he will proceed to trial. Where under a state statute, a prima facie case of negligence on the part of the employer was made out, when any defect or unsafe condition was shown, while under the federal act the plaintiff must show negligence under the ordinary rules applicable, if the petition states a cause of action under the two laws in separate counts, a motion to elect, if pre- sented before the trial, should be then sustained.^ In another action for the death of a brakeman, it was alleged in the petition, that the decedent was engaged in interstate commerce or intrastate com- merce, the plaintiff did not know which. The de- ceased was killed, it was alleged, as the direct result of one or more of the acts of negligence charged in the petition. The court held that the petition was not sustainable under a state statute authorizing alternative allegations, since the rights and liabili- ties of the parties under the state law and the federal act are essentially different, and hence the defendant was, entitled to compel the plaintiff to elect on which cause of action she would proceed.^ In another case, in which the injured servant alleged a cause of action under the state law in one count and under the federal act in another, it was held that the motion to elect should have been sustained, but that the im- proper denial of the defendant's motion to compel 4. South Covington & C. S. R. Co. v. Finan's Adm'x, 153 Ky. 340. 5. Louisville & N. R. Co. v. Strange 's Adm 'x, 156 Ky. 439, 6 N. C. C. A. 75n, 82, 83n, 185n. Roberts LaablUUes — 20 306 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS an election was harmless, where the court mled at the close of all the evidence that the case did not come within the federal act.*' In so holding that the error was harmless the court said in that case: ''But this error (failing to sustain motion to elect before trial) was not in this case prejudicial to the railroad company and in cases like this the failure to require the plaintiff to elect will not be reversible error un- less it appears that the substantial rights of the defendant were prejudiced by the ruling of the court. In the Strange case, we pointed out the difference between the federal act and the common law and the reason why it was prejudicial error in that case not to have sustained a motion to elect, but the reasons that made it prejudicial not to sustain the motion in that case do not appear in this one." Plaintiff, a widow of an employe killed in Missouri, brought suit in an Iowa state court basing her cause of action upon the Missouri law which provides that in case of death, the widow may recover without the appointment of an administrator. Defendant then filed an answer alleging that the cause of action was governed by the federal act. Later, the plaintiff as administratrix of the estate of her husband, filed a new suit under the federal act and the defendant's answer in that case was a general denial. On motion the two causes were consolidated and tried together. It does not appear from the report of the case whether the consolidation of the two actions, in which the widow was plaintiff in one suit in her in- 6. LouisviUe & N. R. Co. v. Moore, 156 Ky. 708, 4 N. C. C. A. 227n, 5 N. C. C. A. 77111. PRACTICE UNDER FEDERAL ACT 307 dividual capacity and plaintiff in the other snit as administratrix, were consolidated by consent. At the close of plaintiff's evidence a motion to require plaintiff to elect which cause of action she would I3rosecute, was overruled, but at the close of the evidence, the court on defendant's motion required the plaintiff to elect and she chose to proceed with the action under the state law. The appellate court held that, under the facts, the cause of action was governed by the federal statute and ordered the cause reversed for that reason for a new trial.'^ § 175. Widow Suing in Her Own Name in One Suit and as Administratrix in Another, Cannot Be Com- pelled to Elect. — Although a widow brings one suit in her own name against a railroad company for the death of her husband under the laws of the state, and subsequently brings another action as administratrix under the federal act, the bringing of the action under the federal act does not have the effect of superseding the action under the state law, so as to deprive the court of jurisdiction to hear the action under the state law, during the pendency of the suit under the federal act. In jurisdictions where the state statute permits such suits to be consolidated, tried and prosecuted together, if there is an issue of fact, not of law, as to whether the deceased was en- gaged in intrastate or interstate commerce, no elec- tion will be compelled even at the close of the evidence, but of course there can only be a recovery under one law, as the jury may find the facts to be, 7. Armbruster v. Chicago, E. I, & P. Ey. Co., — Iowa — , 6 N, C. C. A. 195n, 147 N. W. 337. 308 INJUBIES TO ESTTERSTATE EMPLOYES ON RAILROADS relative to employment at the time of the injury.^ The Supreme Judicial Court of Massachusetts ex- pressly disapproved the reasoning in the Kentucky cases cited in the foregoing paragraph and held that a widow should not be compelled to elect, although suing under the state law in one suit and as admin- istratri:x under the federal law in another suit. The argument of the court in this case is so forceful, clear and concise that it would detract from its strength and beauty for a commentator to attempt to condense it and we reproduce it: "But we are of opinion that the ruling was wrong. The federal act in the field covered by it, supersedes all state statutes. As to matters within the scope of the federal power, legis- lation by Congress is supreme. So long as Congress had not acted as to liability for injuries received by employes of railroads while engaged in interstate commerce, legislation by the states touching that subject, being within the police power, was valid. But when Congress exerted its jurisdiction to regu- late in this respect commerce between the states, state statutes previously operative in that sphere yielded to its paramount and exclusive power. (Cit- ing cases.) The federal act has no greater extent. It does not undertal^e to affect the force of the state statute in its appropriate sphere. The state law is as supreme and exclusive in its application to intra- state commerce as is the federal law to interstate commerce. If the employe of a railroad engaged in both interstate and intrastate commerce is injured or killed while in the former service, the carrier's 8. Corbett v. Boston & M. E. E,, — Mass. — , 107 N. E. 60. PRACTICE UNDER FEDERAL ACT 309 liability is controlled and must be determined solely by the federal law; if in the latter service, such liability rests wholly upon the state law (citing case). The facts and not the pleadings determine whether the wrong done in any given case gives a right to recover under the federal or the state statute. The allegations in the plaintiff's declarations in these two actions do not constitute the test wliether the juris- diction of the court is under the federal or state statute. These simply are the basis for a judicial inquiry into the facts which alone can determine that question. It is a familiar principle that, where in- consistent courses are open to an injured party and it is doubtful which ultimately may lead to full relief, he may follow one even to defeat, and then take anotTier, or he may pursue all concurrently, until it finally is decided which affords the remedy. The assertion of one claim which turns out to be unsound, so long as it goes no further, is simply a mistake. It is not and does not purport to be a final choice, nor an election. A party is not obliged to select his procedure at his peril (citing cases). This rule has been followed frequently in actions where it was doubtful whether the remedy of the plaintiff was imder our Employers' Liability Act or at common law (citing cases). It is equally applicable to the cases at bar. The principle is not changed in any material respect, because the question relates to remedies afforded by the statutes of different sovereign powers, each exclusive within its own domain. The relief is sought in the same fornm, for the state court has jurisdiction of the cause of action, 310 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS whichever statute may be controlling (citing cases). There are strong practical considerations in the administration of justice which lead to the same result. It oftentimes would be a great hardship upon the parties to compel them to try out first the ques- tion whether the federal act applies, and, if it in the end shall be decided that it does not, then to test by further litigation their rights under the state statute. The short period of limitations provided in each act often might expire before a final decision could be reached. If adverse to the plaintiff on the ground of error in the form of relief sought, he thus might be barred from a just recovery. Although both the federal and state statutes as to amendments are liberal (Eev. St. U. S. § 954; R. L. c. 173, § 48) and are liberally interpreted in cases of this sort (Missouri, Kansas & Texas Ry. v. Wulf, 226 U. S. 570, 33 Supt. Ct. 135, 57 L. Ed. 355 (6 N. C. C. A. 230n, 237n), A*nn. Cas. 1914 B 134; Herlihy v. Little, 200 Mass. 284, 86 N. E. 294), nevertheless the allow- ance of such amendments rests commonly in the sound discretion of the trial judge and is not subject to revision on exceptions. As it is not a matter of right, substantial interests might be lost through no fault of a plaintiff who constantly had been alert in his own behalf. The federal act has been construed as covering injuries occurring at the moment when the particular service performed is a part of inter- state commerce. Illinois Central R. R. v. Behrens, 233 U. S. 473, 478, 34 Sup. Ct. 646, 58 L. Ed. 1051 (6 N. C. C. A. 189n), Ann. Cas. 1914 C 163. Whether a railroad employe is engaged in interstate or intra- PRACTICE UNDER FEDERAL ACT 311 state commerce often involves legal discrimination of great nicety about which even the justices of the highest court are not always in harmony (citing cases). It would be a saving of expense both to the parties and to the commonwealth if the two actions could be prosecuted together, so that by one trial the facts could be ascertained and the causes ended by the determination of the governing principles of law. Wliere the settlement of an issue of fact de- pends upon conflicting evidence, it seems more likely that the truth will be ascertained by adducing all the evidence at one time before a single tribunal and enabling it to find out the real situation under an adequate statement of the governing rules of law applicable to all phases, than to require two distinct and successive inquiries before separate tribunals where only a single aspect of the incident could be open to investigation at one time. There are im- portant points of dissimilarity between the rights conferred and the burdens imposed under the two statutes. The rules of evidence may be different. The principles of law by which liability may be established under the two statutes are somewhat divergent. Difficulties will be presented in the trial which will require great care and a strong grasp by the presiding judge, and demand careful discrimina- tion by jurors. But these are not insurmountable obstacles, nor do they appear to counterbalance the advantages which will accrue in permitting a con- joint prosecution of the two causes in appropriate instances. ' ' ^ 0. Corbett v. Boston & M. E. E., — Mass. — , 107 N. E. 60. 312 INJURIES TO INTERSTATE EMPLOYES ON RAILROADS § 176. Verdicts by Less Than Twelve Jurors, When Permissible Under State Law, Valid in Ac- tions Under Federal Statute. — Section 6 of the Fed- eral Employers' Liability Act (one of the 1910 amendments) provides that the "jurisdiction of courts of the United States under this act shall be concurrent to that of the courts of the several states, and no case arising under this act and brought in any state court of competent jurisdiction shall be removed to any court of the United States." ^^ The seventh amendment to the Constitution of the United States provides: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. ' ' Construing this pro- vision of the Constitution, the courts have uniformly held that the jury trial contemplated by this section is the right to a trial by a jury of twelve men, whose findings shall be unanimous. ^^ It has, however, been held without dissent, that this seventh amendment does not apply to the states, and that a state is not prohibited by the federal Constitution from provid- ing for a jury of less than twelve men or for a verdict 10. Act April 22, 1908, c. 149, § 6, 35 Stat. 66, as amended by Act AprU 5, 1910, c. 143, § 1, 36 Stat. 291, Fed. Stat. Ann. 1912 Supp. p. 335. 11. Thompson v. Utah, 170 U. S. 343, 42 K Ed. 1061; American Pub. Co. V. Fisher, 166 U. S. 464, 41 L. Ed. 1079; Easmussen v. United States, 197 U. S. 516, 49 L. Ed. 862; Black v. Jackson, 177 U. S. 349, 44 L. Ed. 801. PRiVCTICE UNDER FEDERAL ACT 313 that is not unanimous.^- Nor is a trial under a state statute dispensing with the feature of unanimity or abridging the number of jurors, a denial of "due process" within the meaning of the fourteenth amendment to the Constitution of the United States.^^ The constitutions and the statutes of sev- eral of the states provide that in civil cases, a ver- dict may be returned by less than twelve men or by three-fourths or five-sixths of the jurors concurring in the verdict. It has been urged before at least three courts, that in actions prosecuted in the state courts under the Federal Employers' Liability Act the provision of the Constitution of the United States requiring a unanimous verdict by twelve men applies in state courts for the reason that the action is under an Act of Congress. The courts have unanimously held that the verdict in such cases is not controlled by the provision of the national Con- stitution but by the laws of the state where the suit is pending. The fact that the suit is under a federal statute makes no difference, for the reason, as to all matters of procedure, the state law is controlling.^* In the Kelley case, cited, the Court of Appeals of 12. Edwards v. Elliott, 21 WaU. (U. S.) 532, 557, 22 L. Ed. 487; Barron v. Baltimore, 7 Pet. (U. S.) 243, 8 L. Ed. 464; Twitchell v. Pennsylvania, 7 Wall. (U. S.) 321, 19 L. Ed. 223; Walker v. Sauvinet, 92 U. S. 90, 23 L. Ed. 678; Maxwell v. Dow, 176 U. S. 581, 44 L. Ed. 597. 13. Hurtado v. California, 110 U. S. 517, 28 L. Ed. 232; Kennard V. Louisiana, 92 U. S. 480, 23 L. Ed. 478; Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616. 14. Chesapeake & O. Ey. Co. v. Kelly's Adm'x, — Ky. — , 171 S. W. 185; s. c, — Ky. — , 171 S. W. 182; s. c, 160 Ky. 296; Gibson v. Bellingham & N. Ry. Co., 213 Fed. 488 ; Winters v. Minneapolis & St. L. R. Co., — Minn. — , 6 N. C. C. A. 78n, 201n, 148 N. W. 106. 314 INJUEIES TO INTERSTATE EMPLOYES ON RAILROADS Kentucky said: "It seems to us that, when state courts are given jurisdiction to hear and determine causes of action created by federal legislation, they may exercise this jurisdiction according to the prac- tice and procedure of the forum and under the jury systems adopted, subject, of course, to such condi- tions as Congress may attach to the legislation ; and Congress did not, in the legislation here in question, attempt to attach any conditions to the practice and procedure through which the jurisdiction of state courts of competent jurisdiction might be exercised in the enforcement of rights arising under this act."i^ § 177. When Suit Under State Law Is Res Ad judi- cata. — Unless there is an identity of parties and of subject matter, a suit prosecuted and determined under the state law, is not a bar to a subsequent suit under the federal act. A judgment against the widow who sued in her individual capacity for her- self and her children to recover damages from an interstate carrier for the death of her husband while in its employ, which was prosecuted and tried under the state law, and which provided that there should be no recovery for the negligence of a fellow serv- ant, is not a bar to a subsequent suit by her as ad- ministratrix, for the benefit of herself and the same children against the carrier under the federal act in which recovery was asked, because of the negli- 15. The decisions of these courts are no doubt correct under the following controlling decisions of the United States Supreme Court: Claflia V. Houseman, 93 U. S. 130, 23 L. Ed. 833; Louisville & N. B. Co. V. Scott, 133 Ky. 724, 19 Ann. Cas. 392, affirmed in 219 U. S. 209, 55 L. Ed. 183. PRACTICE UNDER FEDERAL ACT 315 gence of such fellow servant.^*' Mr. Justice Day, speaking for the court in that case, said : ' * To work an estoppel the first proceeding and judgment must be a bar to the second one, because it is a matter already adjudicated between the parties. The cause of action under the state law, if it could be prosecuted to recover for the wrongful death alleged in this case, was based upon a different theory of the right to recover than prevails under the federal statute. Under the Pennsylvania law there could be no re- covery for the negligence of the fellow servants of the deceased. This was the issue upon which the case was submitted at the second trial and a recov- ery had. Whether the plaintiff could recover under the Pennsylvania statute was not involved in the second action, and the plaintiff's right to recover because of the injury by the negligence of the fellow servants was not involved in or concluded by the first suit. Furthermore, it is well settled that to work an estoppel by judgment there must have been iden- tity of parties in the two actions. Brown v. Fletcher, 210 U. S. 82, 52 L. Ed. 966, 28 Sup. Ct. Rep. 702; Ingersoll v. Coram, 211 U. S. 335, 53 L. Ed. 208, 29 Sup. Ct. Eep. 92. The circuit court of appeals in the present case, while recognizing this rule, dis- posed of the contention upon the ground that the parties were essentially the same in both actions (the first action was for the benefit of Li2izie M. Troxell and the two minor children, and the present case, although the action was brought by the administra- 16. TroxeU v. Delaware, L. & W. E. Co., 227 U. S. 434, 57 L. Ed. 586. 316 INJUEIES TO INTERSTATE EMPLOYES ON RAILEOADS trix, is for the benefit of herself and children) ; and held that, except in mere form, the actions were for the benefit of the same persons, and therefore the parties were practically the same; and that the omis- sion to sue as administratrix was merely technical, and would have been curable by amendment. This conclusion was reached before this court announced its decision in American E. Co. v. Birch, 224 U. S. 547, 56 L. Ed. 879, 32 Sup. Ct. Rep. 603. That action was brought under the Federal Employers ' Liability Act by the widow and son of the decedent, and not by the administrator. The lower court held that the requirement of the act that the suit should be brought in case of death by the personal representa- tive of the deceased did not prevent a suit in the name of the persons entitled to the benefit of the recovery. In other words, the court ruled, as did the circuit court of appeals in this case, that where it was shown that the widow and child were the sole beneficiaries, they might maintain the action with- out the appointment of a personal representative. This court denied the contention, and held that Con- gress, doubtless for good reasons, had specifically provided that an action under the Employers' Lia- bility Act could be brought only by the personal representative; and the judgment was reversed with- out prejudice to the rights of such personal repre- sentative. We think that under the ruling in the Birch case there was not that identity of parties in the former action by the widow and the present case, properly brought by the administrator under the PRACTICE UNDER FEDERAL, ACT 317 Employers' Liability Act, which renders the former suit and judgment a bar to the present action." § 178. Errors in Actions Under Federal Act Held Harmless on Appeal. — In all actions under the fed- eral act where there are more than one beneficiary, the verdict should apportion the sum due each of them but where no instructions requiring the jury so to do were asked and no objection was made or exception taken to the verdict, the error has been held to be harmless on appeal.^'^ A trial court in an action under the federal act instructed the jury on the measure of damages to a wife and dependent child that they should include the value of the sup- port and "protection" they would have secured from the deceased had he lived. The court held that the word "protection" was used in a pecuniary sense in the instruction and that even if not so understood by the jury, the error under a state statute prohibit- ing a reversal for harmless errors, was not such as to justify a reversal.^^ In an action for the death of a fireman prosecuted under the Federal Employ- ers ' Liability Act, the trial court instructed the jury that if an employe is injured through, defective in- strumentalities it is prima facie evidence of the com- pany's negligence and that the railroad company "assumes the burden" of showing that it exercised ordinary care in furnishing the appliances. The Supreme Court of the United States in passing on 17. Hardwick v. Wabash E. Co., 181 Mo. App. 156; Southern Ey. Co. V. Smith, 123 C. C. A. 488, 205 Fed. 360; Yazoo & M. V. E. Co. V. Wright, 125 C. C. A. 25, 207 Fed. 281. 18. Sweet v. Chicago & N. W. E. Co., 157 Wis. 400, 6 N. C. C. A. 78n, 94n, 232n, 451n. 318 INJURIES TO INTERSTATE EMPLOYES ON RAH, ROADS this instraction held that it was not snch an error as to justify a reversal where the court's charge in another clause plainly stated to the jury that the burden of proving negligence was on the plaintiff throughout the case.^^ An instruction in an action under the federal act on the effect of contributory negligence in which the court charged the jury that they should ''deduct" a reasonable amount for the plaintiff's contributory negligence instead of using the word ' * diminished, ' ' found in the federal statute, was held not to be an error. ^^ § 179. Plaintiff in Action Under Federal Act May Sue as a Poor Person in United States Courts, When. — In any action under the Federal Employers' Lia- bility Act prosecuted in the courts of the United States the plaintiff, by order of court, may com- mence and prosecute the action without being re- quired to prepay fees and costs, upon filing in court a statement under oath in writing that because of his poverty he is unable to pay the costs of the suit or to give security for the same and that he believes he is entitled to the redress he seeks by the action and setting forth briefly the nature of his alleged cause of action. ^^ The Act of Congress permitting a person to sue as poor person in the federal courts is as follows : ' ' That any citizen of the United States entitled to commence or defend any suit or action, civil or criminal, in any court of the United States, 19. Southern Ry. Co. v. Bennett, 233 XJ. S. 80, 58 L. Ed. 860. 20. TUgham v. Seaboard A. L. By. Co., — N. C. — , 83 S. E. 315. 21. Act of Congress approved June 25, 1910, c. 435, Fed. Stat. Ann. 1912 Supp. p. 45. PRACTICE UNDER FEDERAL ACT 319 may, npon the order of the court, commence and prosecute or defend to conclusion any suit or action, or a writ of error, or an appeal to the circuit court of appeals, or to the Supreme Court in such suit or action, including all appellate proceedings, unless the trial court shall certify in writing that in the opinion of the court such appeal or writ of error is not taken in good faith, without being required to prepay fees or costs or for the printing of the record in the appellate court or give security therefor, be- fore or after bringing suit or action, or upon suing out a writ of error or appealing, upon filing in said court a statement under oath in writing that because of his poverty he is unable to pay the costs of said suit or action or of such writ of error or appeal, or to give security for the same, and that he believes that he is entitled to the redress he seeks by such suit or action or writ of error or appeal, and setting forth briefly the nature of his alleged cause of action or appeal. ' ' APPENDIX A FEDERAL EMPLOYERS' LIABILITY ACT OF 1906 An Act Relating to liability of common carriers in the Dis- trict of Columbia and Territories and common carriers engaged in commerce between the States and between the States and foreign nations to their employes. Be it enacted hy the Senate and House of Representa- tives of the United States of America in Congress assem- bled, That every common carrier engaged in trade or com- merce in the District of Columbia, or in any Territory of the United States, or between the several States, or between any Territory and another, or between any Territory or Territories and any State or States, or the District of Columbia, or with foreign nations, or between the District of Columbia and any State or States or foreign nations, shall be liable to any of its employes, or, in the case of his death, to his personal representative for the benefit of his widow and children, if any, if none, then for his parents, if none, then for his next of kin dependent upon him, for all damages which may result from the negligence of any of its officers, agents, or employes, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, ways, or works. Sec. 2. That in all actions hereafter brought against any common carriers to recover damages for personal injuries to an employe, or where such injuries have resulted in his death, the fact that the employe may have been guilty of contributory negligence shall not bar a recovery where his contributory negligence was slight and that of the employer was gross in comparison, but the damages shall be dimin- 321 Eoberts liabilities— 21 322 APPENDIX ished by the jury in proportion to the amount of negli- gence attributable to such employe. All questions of negligence and contributory negligence shall be for the jui-y. Sec. 3. That no contract of employment, insurance, relief benefit, or indemnity for injury or death entered into by or on behalf of any employe, nor the acceptance of any such insurance, relief benefit, or indemnity by the person entitled thereto, shall constitute any bar or defense to any action brought to recover damages for personal injuries to or death of such employe : Provided, Jwwever, That upon the trial of such action against any common carrier the defendant may set off therein any sum it has contributed toward any such insurance, relief benefit, or indemnity that may have been paid to the injured employe, or, in case of his death, to his personal representative. Sec. 4. That no action shall be maintained under this Act, unless commenced within one year from the time the cause of action accrued. Sec. 5. That nothing in this Act shall be held to limit the duty of common carriers by railroads or impair the rights of their employes under the safety-appliance Act of March second, eighteen hundred and ninety-three, as amended April first, eighteen hundred and ninety-six, and March second, nineteen hundred and three. Approved, June 11, 1906. 34 U. S. Stat, at L. 232, e, 3073. APPENDIX B FEDERAL EMPLOYERS' LIABILITY ACT OF 1908 An Act Relating to the liability of common carriers by rail- road to their employes in certain cases. Be it enacted hy the Senate and House of Representa- tives of the United States of America in Congress asscm- hled. Section 1. Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Coliunbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such com- merce, or, in case of the death of such employe, to his or her personal representative, for the benefit of the surviving widow or husband and children of such emploj^e; and, if none, then of such employe's parents; and, if none, then of the next of kin dependent upon such employe, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employes of such carrier, or by reason of any defect or insufSciency, due to its negligence, in its ears, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment. Sec. 2. Every common carrier by railroad in the Terri- tories, the District of Columbia, the Panama Canal Zone, or other possessions of the United States shall be liable in damages to any person suffering injury while he is employed by such carrier in any of said jurisdictions, or, in case 323 324 APPENDIX of the death of such employe, to his or her personal rep- resentative, for the benefit of the surviving widow or hus- band and children of such employe; and, if none, then of such employe's parents; and, if none, then of the next of kin dependent upon such employe, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employes of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment. Sec, 3. In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employe or where such injuries have resulted in his death, the fact that the employe may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in propor- tion to the amount of negligence attributable to such employe: Provided, That no such employe who may be injured or killed shall be held to have been guilty of con- tributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe. Sec. 4. In any action brought against any common car- rier under or by virtue of any of the provisions of this act to recover damages for injuries to, or the death of, any of its employes, such employe shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe. Sec. 5. Any contract, rule, regulation, or device whatso- ever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act, shall to that extent be void : Provided, That in any action brought against any such common carrier under FEDERAL EMPLOYERS' LIABILITY ACT 325 or by virtue of any of the provisions of this act, such com- mon carrier may set off therein any sum it has contributed or paid to any insurance^ relief benefit, or indemnity that may have been paid to the injured employe or the person entitled thereto on account of the injury or death for which said action was brought. Sec. 6. No action shall be maintained under this act unless commenced within two years from the day the cause of action accrued. Sec. 7. The term "common carrier" as used in this act shall include the receiver or receivers or other persons or corporations charged with the duty of the management and operation of the business of a common carrier. Sec. 8. Nothing in this act shall be held to limit the duty or liability of common carriers or to impair the rights of their employes under any other act or acts of Congress, or to affect the prosecution of any pending proceeding or right of action under the act of Congress entitled "An act relat- ing to liability of common carriers in the District of Colum- bia and Territories, and to common carriers engaged in com- merce between the States and between the States and for- eign nations to their employes," approved June 11, 1906. Approved, April 22, 1908. 35 U. S. Stat, at L. 65 e. 149. APPENDIX C FEDERAL EMPLOYERS' LIABILITY ACT, AMEND- MENTS OF 1910 An Act To amend an Act entitled "An Act relating to the liability of common carriers by railroad to their employes in certain eases," approved April twenty-sec- ond, nineteen hundred and eight. Be it enacted hy the Senate and House of Representa- tives of the United States of America in Congress assem- bled, That an Act entitled "An Act relating to the liability of common carriers by railroad to their employes in cer- tain cases," approved April twenty-second, nineteen hun- dred and eight, be amended in section six so that said section shall read: Sec. 6. (As amended by act of April 5, 1910.) No action shall be maintained under this act unless commenced within two years from the day the cause of action accrued. Under this act an action may be brought in a circuit court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this act shall be concurrent with that of the courts of the several States, and no case arising under this act and brought in any State court of competent jurisdiction shall be removed to any court of the United States. Sec. 2. That said Act be further amended by adding the following section as section nine of said Act : Sec. 9. Any right of action given by this act to a person 326 AMENDMENTS OP 1910 327 suffering injury shall survive to his or her personal repre- sentative, for the benefit of the surviving widow or husband and children of such employe, and, if none, then of such employe's parents; and, if none, then of the next of kin dependent upon such employe, but in such cases there shall be only one recovery for the same injury. Approved, April 5, 1910. APPENDIX D REPORT OF JUDICIARY COMMITTEE OF HOUSE ON FEDERAL EMPLOYERS' LIA- BILITY ACT OF 1908 The Committee on the Judiciary, to whom was referred House Bill 20310, have had the same under consideration, and report it to the House with a recommendation that it pass. This bill relates to common carriers by railroad engaged in interstate and foreign commerce and in commerce in the District of Columbia, the Territories, the Canal Zone, and other possessions of the United States. It is intended in its scope to cover all commerce to which the regulative power of Congress extends. The purpose of this bill is to change the common-law lia- bility of employers of labor in this line of commerce, for personal injuries received by employes in the service. It abolishes the strict common-law rule of liability which bars a recovery for the personal injury or death of an employe, occasioned by the negligence of a fellow-servant. It also relaxes the common-law rule which makes contributory neg- ligence a defense to claims for such injuries. It permits a recovery by an employe for an injury caused by the negli- gence of a co-employe ; nor is such a recovery barred even though the injured one contributed by his own negligence to the injury. The amount of the recovery, however, is diminished in the same degree that the negligence of the injured one contributed to the injury. It makes each party responsible for his own negligence, and requires each to bear the burden thereof. The bill also provides that, to the extent that any contract, rule, or regulation seeks to exempt 328 REPORT OF HOUSE JUDICIARY COMMITTEE 329 the employer from liability; created by this act, to that extent such contract, rule or regulation shall be void. Many of the States have already changed the common- law rule in these particulars, and by this bill it is hoped to fix a uniform rule of liability throughout the Union with reference to the liability of common carriers to their employes. Sections 1 and 2 of this bill provide that common carriers by railroad, engaged in interstate and foreign commerce, in commerce in the District of Columbia, the Territories, the Panama Canal Zone, and other possessions of the United States, shall be liable to its employes for personal injuries resulting from its negligence or by reason of any defect or insufficiency due to its negligence in its roads, equipment, or methods. It is not a new departure, but rather goes back to the old law which made the master liable for injury occa- sioned by the negligence of his servant, either to a co-servant or to a third person. The doctrine o-f fellow-servant was first enunciated in England in 1837, and since that time it has been generally followed in that country and this, except where abrogated or modified by statute. Whatever reason may have existed for the doctrine at the time it was first announced, it can not be said to exist now, under modern methods of com- merce by railroad. It is possible that a century ago, under industrial methods and systems as they then existed, co-em- ployes could have some influence over each other tending to their personal safety. It is possible that they could know something of the habits and characteristics of each other. Under present industrial methods and systems this can not be true. Then they worked with simple tools and were closely associated with each other in their work. Now they WQrk with powerful and complex machinery, with widely diversified duties, and are distributed over larger areas and often widely separated from each other. Under present methods, personal injuries have become a prodigious burden to the emplo^'es engaged in our industrial and commercial systems. 330 APPENDIX The master should be made wholly responsible for injury to the servant by reason of the negligence of a co-servant. He exercises the authority of choosing the employes and if made responsible for their acts while in line of duty he will be induced to exercise the highest degree of care in selectmg competent and careful persons and will feel bound at all times to exercise over employes an authority and influence which will compel the highest degree of care on their part for the safety of each other in the performance of their duties. These sections make the employer liable for injury caused by defects or insufficiencies in the roadbed, tracks, engines, machinery, and other appliances used in the operation of railroads. Over these things the employe has absolutely no authority. The employer has complete authority over them, both in their construction and in their maintenance. It is a very hard rule, indeed, to compel men, who by the exigencies and necessities of life are bound to labor, to assume the risks and hazards of the employment, when these risks and hazards could be greatly lessened by the exercise of proper care on the part of the employer in pro- viding safe and proper machinery and equipment with which the employe does his work. We believe that a strict rule of liability of the employer to the employe for injuries received for defective machinery will greatly lessen per- sonal injuries on that account. The common-law rules of fellow-servants and assumption of risk still prevail in many of the States, and without any apparent good reason. In recent years many of the countries of Europe have adopted new rules of liability, which greatly relieve the harshness of the common law as it still exists in some of the States. In 1888 England passed an act which abolished the doc- trine of fellow-servant with reference to the operation of railroad trains, and in 1897 it extended this law to apply to many of the hazardous employments of the country. For many years the doctrine in Germany has been yield- ing step by step to better rules, until for the last quarter of REPORT OF HOUSE JUDICIARY COMMITTEE 331 a century it does not apply to any of the hazardous occupa- tions. In 1869 Au^stria passed a law making railroad companies liable for all injuries to their employes except where the injury was due to the victim's own negligence. The Code Napoleon made the employer answerable for all injuries received by his workmen, and this code is still in force in Belgium and Holland. Other European countries have from time to time made laws fixing the liability of the master for damages caused by the negligent act of his servant. ]\Iany of the States have passed laws modifying the doc- trine as changing conditions required it and justice to the employe demanded it. Alabama in 1885 eliminated the doctrine so far as it relates to railroads, and in other particulars. Arkansas in 1893 qualified the doctrine as to railroad employment, Georgia in 1856 entirely abolished the doctrine as to rail- roads. Iowa abolished it as to train operatives in 1862. Kansas did the same thing in 1874. The latest statute in Wisconsin on the subject abolished the fellow-servant doctrine as to employes actually engaged in operating trains. IVIinnesota did the same thing in 1887. Florida, Ohio, Mississippi, and Texas have changed the doctrine to the advantage of the employe. North Carolina, North Dakota, and Massachusetts have practically eliminated the doctrine as regards the operation of railroad trains. Colorado in 1901 abolished the doctrine in toto. Other States have either abolished it or modified it as regards the operation of railroads. As compared with the law now in force in other countries and in many of the States, the changes made in the law of fellow-servant by this bill are not radical. The doctrine as 332 APPENDIX regards the hazardous occupations is being relegated every- where. A Federal Statute of this character will supplant the numerous State Statutes on the subject so far as they relate to interstate commerce^ It will create uniformity through- out the Union, and the legal status of such employer's lia- bility for personal injuries, instead of being subject to numerous rules, will be fixed by one rule in all the States. It is thought that the adoption of the rule, as provided in this section, will be conducive to greater care in the opera- tion of railroads. As it is now, where the doctrine of fellow-servant is in force, no one is responsible for the injury or death of an employe if caused by the carelessness of a co-employe. The co-servant who is guilty of negli- gence resulting in the injury may be liable, but as a rule he is not responsible, and hence the injury is not compen- sated. The employe is not held by the employer to such strict rules of caution for the safety of his co-employe, because the employer is not bound to pay the damages in case of injury. If he were held liable for damages for every injury occasioned by the negligence of his servant, he would impose the same strict rules for the safety of his employes as he does for the safety of passengers and stran- gers. He will make the employment of his servant and his retention in the service dependent upon the exercise of higher care, and this will be the stronger inducement to the employe to act with a higher regard for the safety of his fellow- workmen. Section 3 is a modification of the common-law rule of contributor}^ negligence. It does not abolish the law. Under its provisions contributory negligence stiU bars a recovery for personal injury so far as the injury is due to the contributory negligence of the employe, but entitles the employe to recover for the injury so far as it is due to the negligence of the employer. It differs from the Act passed by Congress in June, 1906, on this point, in this: That law provided that contributory negligence did not bar a recovery if the negligence of the employe was slight and REPORT OF HOUSE JUDICIARY COMMITTEE 333 that of the employer was gross in comparison. That law modified the common-law rule of contributory negligence and also contained a modification of the common-law doc- trine of comparative negligence. We are unable to see any justification whatever in the common-law doctrine of com- parative negligence anywhere. It is the only rule of negli- gence that permits an employe to recover damages for injury to which his own negligence contributed. Com- parative negligence is absolutely wrong in principle, for the reason that it permits the employe to recover full dam- ages for injury, even though his own negligence contributed to it. It is true, as the law states it, he can only recover damages when his contributory negligence is slight and that of the employer is gross in comparison. But that rule does not undertake to diminish the verdict in proportion to the negligence of the employe. This may be said in behalf of the doctrine of contributory negligence in its common-law purity, and it is the only reason, so far as we know, that has ever been assigned for its existence : It tends to make the employe exercise a higher degree of care for his own safety. If that is a good reason for the existence of that rule, then we believe that Section 3 of this bill is a very great improve- ment on that doctrine, for the reason that it imposes the burden of the employer's negligence on the employer, and he will thus be induced to exercise higher care in the selec- tion of his employes, and in other ways, for the safety of persons in his employment. If the law imposes on the employe the burden of his own negligence, that is certainly sufficient, and that is what this section seeks to do, and it also seeks to impose upon the employer the burden of his negligence. It provides that contributory negligence shall not bar a recovery for injury due to the negligence of the employer. It provides that the jury shall diminish the damages suffered by the injured employe in proportion to the amount of negligence attributable to such employe. It is urged by some that such a provision is impracticable of administration and that juries will not divide the dam- ages in accordance with the negligence committed by each. 334 APPENDIX The same objection can be urged against the provision of the bill passed by Congress in 1906, Avhich provided that only slight negligence should not bar a recovery, but that the jury should diminish damages in proportion to such slight negligence. Under that provision the jury would have the same difficulty, if any, in apportioning the dam- ages according to the negligence of each party. We submit, further, that this section of the bill is free from the very unjust principle contained in the common-law doctrine of comparative negligence which allowed the employe to recover full damages for injury to which his own negligence contributed in some degree. It is not a just criticism of a law, conceding the righteousness of its principles, to say that it is impracticable of administration. We submit that the principle in this section is ideal justice, against which no fair argument can be made. It is better that legislatures pass just and fair laws, even though they may be diflScult of administration by the courts, rather than to pass unjust and unfair laws because they may be more easily adminis- tered by the courts. Courts ought not to be compelled to administer the common-law doctrine of contributory negli- gence, which puts upon the employe the whole burden of negligence, even though his negligence was slight and that of the employer was gross. That law might to some extent induce higher care on the part of the employe, but in the same degree, and for the same reason, it induces the employer to have less regard and less care for the safety of his employes. It is urged that juries under this law will wholly ignore the negligence committed by the employe and charge all the injury to the negligence of the employer. We do not believe that this will be the result of the administration of this section. We believe it will appeal to juries as emi- nently just and they will undertake to enforce it literally to the best of their skill. If juries under the common-law rule of contributory negligence have been disposed to assess damages in spite of the fact that the defendant contributed to the injury by his own negligence, it may be said that the REPORT OF HOUSE JUDICIARY COMMITTEE 335 jury recognizes the injustice of the law and undertakes to correct it by what they consider a just and righteous ver- dict. There is nothing in this law that will induce such a sentiment in the minds of the jury, but it will appeal to them as the true principle, and, in our judgment, they will seek to apply it fairly in the courts. Beach, in his work on contributory Negligence, page 136, comments on the law as provided in this section as follows : "Much may be said in favor of the rule which counts the plaintiff's negligence in mitigation of the damages in those cases which frequently arise, wherein, on one hand, a real injury has been suffered by the plaintiff by reason of the culpable negligence of the defendant, and yet, where, on the other hand, the plaintiff's conduct was such as to some extent contribute to the injury, but in so small a degree that to impose upon him the entire loss seems not to take a just account of the defendant 's negligence. In those cases, which may be denominated 'hard cases,' the Georgia and Tennessee rule in mitigation of damages without necessarily sacrificing the principle upon which the law as to contrib- utory negligence rests is a rule against which, in respect of justice and humanity, nothing can be said. Where the severity of the general rule might refuse the plaintiff any remedy whatever, as the sheer injustice of the rule, as laid down in Davis v. Mann, would impose the whole liability upon the defendant, it is quite possible to conceive a case where the application of the rule which mitigates the dam- ages in proportion to the plaintiff's misconduct, but does not decline to impose them at all, would work substantial justice between the parties," Shearman and Redfield on the Law of Negligence, fifth edition, page 158, in speaking of this rule, say : ' ' This is substantially an adoption of the admiralty rule, which is certainly nearer ideal justice, if juries could be trusted to act upon it," The United States has adhered much closer to the common- law doctrine of contributory negligence than the leading countries of Europe. The laws of England, Germany, and 336 APPENDIX Italy go much further to discharge the employe from the responsibility of his own act than does the common-law doctrine of comparative negligence. The laws of France, Switzerland, and Russia are in prac- tical accord with the provisions of section 3 of this bill. The rule provided for in this section is recognized to some extent in this country. Maryland and some of the other States have passed statutes seeking to divide the responsi- bility where both parties are guilty of negligence. The provisions of this section are certainly just. What can be more fair than that each party shall suffer the con- sequences of his own carelessness? It certainly appeals more strongly to the fair mind than the proposition that the employe shall have no redress whatever, even though his injury is due mainly to the negligence of another. As a consequence of this legislation, we believe there will be fewer accidents. By the responsibility imposed, both par- ties will be induced to the exercise of greater diligence, and as a result the public will travel and property will be trans- ported in greater safety. The proviso in section 3 is to the effect that contributory negligence shall not be charged to the employe if he is injured or killed by reason of the violation, by the employer, of any statute enacted for the safety of employes. The effect of the provision is to make a violation of such a statute negligence per se on the part of the employer. The courts of some States have held this as a principle of the common-law. Other States have enacted it into statute. Section 4 provides, in effect, that the employe shall not be charged with the assumption of risk in case he is injured by reason of the violation of the employer of a statute enacted for the safety of his employes. This section likewise makes the violation of such a statute negligence per se on the part of the employer, and is already the law in many of the States of the Union. Section 5 renders void any contract or rule whereby a common carrier seeks to exempt itself from liability cre- ated by this act. Many of the States have enacted lawi^ REPORT OF HOUSE JUDICIARY COMMITTEE 337 making void such contracts and regulations, and, so far as we are informed, these statutes have been sustained by the courts. The following States have incorporated into their statutes language similar to the language contained in this bill on this question: Arkansas, California, Colorado, Florida, Georgia, Indiana, Iowa, Massachusetts, Minnesota, Mississippi, Montana, Nebraska, Nevada, New York, North Carolina, North Dakota, Ohio, Oregon, South Carolina, South Dakota, Texas, Virginia, Wisconsin, and Wyoming. The Supreme Court of Ohio held that a contract exempting a railroad company from liability for injuries was void under the common law as against public safety. Likewise the Supreme Court of Arkansas and the Court of Appeals of Virginia have held the same doctrine. Tlie courts of New York have held that such contracts, though based on a consideration, are void as against public policy. The statutes of Ohio and Iowa fixing the liability of employer to employes, containing provisions similar to this section, have been held constitutional by the Federal Courts, although the cases in Vv^hich these decisions were rendered did not expressly turn on that question. The courts of Ala- bama have held such contracts void, regardless of statute. In Georgia and Pennsylvania such contracts have been held valid, but since the decision in Georgia that State has adopted a statute making them void. This provision is necessary in order to mate effective sec- tions 1 and 2 of the bill. Some of the railroads of the country insist on a contract with their employes discharging the company from liability for personal injuries. In any event, the employes of many of the common car- riers of the country are to-day working under a contract of employment which by its terms releases the company from liability for damages arising out of the negligence of other employes. As an illustration we quote one paragi^aph from a blank form of application for a situation with the American Express Company, and entitled "Rules govern^ ing employment by this company:" "I do further agree, in consideration of my employment Roberts ijiabilities — 22 338 APPENDIX by said American Express Company, that I will assume all risks of accident or injury which I shall meet with or sus- tain in the course of such employment, whether occasioned by the negligence of said company or any of its members, officers, agents, or employes, or otherwise; and that in case I shall at any time suffer any such injury, I will at once execute and deliver to said company a good and sufficient release, under my hand and seal, of all claims, demands, and causes of action arising out of such injury or connected therewith or resulting therefrom ; and I hereby bind myself, my heirs, executors, and administrators, with the payment to said express company, on demand, of any sum which it may be compelled to pay in consequence of any such claim or in defending the same, including all counsel fees and expenses of litigation connected therewith." While many of the States have enacted statutes making such contracts void, yet the United States Supreme Court, there being no Federal statute on the subject, have held a similar contract valid in the case of Voigt v. Baltimore and Ohio Southwestern Railroad (176 U. S., p. 498). In this case the railraad company entered into a contract with an express company whereby it agreed to carry the business of the express company, to furnish it with cars and certain facilities over its road, and to carry its messengers, in con- sideration of which the express company agreed to save harmless the railroad company for all claims for damages for personal injury received by its employes, whether the injuries were caused by the negligence of the railroad com- pany or otherwise. Voigt entered the service of the express company as mes- senger, and by the contract of his emplojonent he agreed to assume all the risk of accident and injury and to indemnify and save harmless the express company from all claims that might be made against it for injury he might suffer, whether resulting from negligence or otherwise, and to execute a release for the same. Voigt was injured and sued. The court said : "He was not constrained to enter into the contract REPORT OP HOUSE JUDICIARY COMMITTEE 339 whereby the railroad company was exonerated from liabil- ity to him, but entered into the same freely and voluntarily, and obtained the benefit of it by securing his appointment as such messenger, and that such a contract did not contra- vene public policy. ' ' In the case of O'Brien v. C. and N. W. Ry. Co. (Fed. Rep., vol. 116, p. 502), which involved the statute of Iowa making such contracts invalid, the court said: "That while such contracts would be effective to protect the railroad company from liability at common-law, under such statutory provisions declaratory of the public policy of the State they were invalid and constituted no defense to an action against it for the death of the messenger occurring in the State of Iowa by reason of the wrecking of the express car in which he was employed, through the negli- gence and want of ordinary care of defendant or its serv- ants, whether the messenger be regarded as an employe of the defendant or not." This section of the bill, however, provides that the com- mon carrier may set off against any claim for damages whatever it has contributed toward such insurance, relief benefit, or indemnity that may have been paid to the injured employe, which would seem to be entirely fair and aU that ought to be required of the employe. Some of the roads of the country have established what are caUed "relief departments," which seek to operate a species of insurances for the employe against the hazards of the employment, but, so far as we know, all their forms of contracts, used by these relief departments to insure the employe, discharge the company from every possible liabil- ity for personal injuries to the employe. This release is made by its terms of agreement in consideration of the con- tributions of the company to the relief fund. The following is one of the paragraphs from the form of application for membership in the relief department used by the Baltimore and Ohio Railroad Company: "I further agree that, in consideration of the contribu- tions of said company to the relief department and of the 340 APPENDIX guaranty by it of the payment of the benefits aforesaid, the acceptance of benefits from such relief feature for the injury or death shall operate as a release of all claims against said company, or any company owning or operating its branches or divisions, or any company over whose rail- road, right of way, or property the said Baltimore and Ohio Railroad Company or any company owning or operating its branches or divisions shall have the right to run or operate its engines or cars or send its employes in the performance of their duty, for damages by reason of such injury or death which could be made by or through me ; and that the super- intendent may require, as a condition precedent to the pay- ment of such benefits, that all acts by him deemed appro- priate or necessary to effect the full release and discharge of the said companies from all such claims be done by those who might bring suit for damages by reason of such injury or death ; and also that the bringing of such a suit by me, my beneficiary or legal representative, or for the use of my beneficiary alone, or with others, or the payment by any of the companies aforesaid of damages for such injury or death recovered in any suit or determined by a compromise or any costs incurred therein, shall operate as a release in full to the relief department of all claims by reason of membersliip therein." The form of other application used by other companies are similar in terms to the cited, and make acceptance of benefits from said fund a release of all claims for damages for injury or death. By an act concerning common carriers engaged in inteiv state commerce and their employes, approved June 1, 1898, known as the ' ' arbitration law, " it is made a misdemeanor on the part of any employer subject to the provisions of that act: ' ' To require any employe or any person seeking employ- ment, as a condition of such emplojnnent, to enter into a contract whereby such employe or applicant for employ- ment shall agree to contribute to any fund for charitable, sociable, or beneficial purposes; to release such employer REPORT OF HOUSE JUDICIARY COMMITTEE 341 from legal liability for any personal injury by reason of any benefit arising from the employer's contribution to such fund." We believe this bill meets the objections of the Supreme Court to the act of June 11, 1906, known as the "employers' liability act," in the case of Howard, administratrix, etc., V. Illinois Central Railroad Cwnpany, et al., 6 Cong. Record, 1st Sess. pp. 4434-4436. APPENDIX E REPORT OF JUDICIARY COMMITTEE OF HOUSE ON AMENDMENTS OF 1910 TO FEDERAL EMPLOYERS' LIABILITY ACT OF 1908 The Committee on the Judiciary, to whom was referred the bill (H, R. 17263) to amend an act entitled, "An act relating to the liability of common carriers by railroad to their employes in certain cases," approved April 22, 1908, having had the same under consideration, beg leave to report it to the House with a recommendation that the bill do pass. In considering the advisability of amending the act enti- tled "An act relating to the liability of common carriers by railroads to their employes in certain cases," approved April 22, 1908, it is important at the outset to understand that the purpose of Congress in the passage of this act was to extend further protection to employes. This was its manifest purpose, as is apparent from a consideration of the circumstances of its enactment. It is manifest from a consideration of the reports, both of the Senate and House committees, when the measure was pending before those bodies prior to its enactment, that the purpose of the statute was to extend and enlarge the remedy provided by law to employes engaged in interstate commerce in cases of death or injury to such employes while engaged in such service. No purpose or intent on the part of Congress can be found to limit or to take away from such an employe any right theretofore existing by which such employes were entitled to a more extended remedy than that conferred upon them by the act. The effect of decisions of cases so far adjudicated under 342 HOUSE COMMITTEE REPORT ON 1910 AMENDMENTS 343 the act has been in general to recognize the true intent of Congress and to extend and make more ample the right to recover damages for death or injury to interstate servants, yet in some particulars its operation has been to limit a recovery which otherwise would have been open to the employe or his representative. One result of the passage of the law may be to nullify State laws affording a remedy in certain cases for death or injury in railroad service. The State laws which had been operative and which were valid even in their application to those engaged in service in interstate commerce appear to have been rendered, as to interstate servants, ineffective when Congress acted upon this subject. That this seems to have been the effect of the passage of this law was expressly decided in a well-considered opinion by Judge Rogers in the case of Fulgam v. Midland Valley R. Co. (167 Fed. 660, p. 662) : It is clear that the act of April 22, 1908, supra, superseded and took the place of all state statutes regulating relations of employers and employees engaged in interstate commerce by railroads. It covered not only injuries sustained by employees engaged in that commerce resulting from the negligence of the master and his serv- ants, and from defects in the designated instrumentalities in use in that commerce, but also dealt with contributory and comparative negligence and assumed risk, making, in certain cases at least, the master an insurer of the safety of the servant while in his employ- ment in that commerce. It covers and overlaps the whole state legislation, and is therefore exclusive. All state legislation on that subject must give way before that act (Miss. Railroad Commission v. lU. Cent. B. R. Co., 203 U. S. 335, 27 Sup. Ct. 90, 51 L. Ed. 209; Sherlock et al, v. Ailing, administrator, 93 U. S. 104, 23 L. Ed. 819). These last cases serve to show that, until Congress has acted with reference to the regulation of interstate commerce, state statutes regulating the rela- tions of master and servant and incidentally affecting interstate commerce, but not regulating or obstructing it, may be given eifect; but when Congress has acted upon a given subject state legislation must yield. In Gulf, Colorado, etc., Railroad Co. v. Hefley (158 U. S. 99, 19 Sup. Ct. 804, 39 L. Ed. 910), the court said: 344 APPENDIX ' ' When a state statute and a federal statnte operate upon the same subject-matter, and prescribe different rules concerning it, the state statute must give way." When Congress acted upon the subject of the regulation of the liability of interstate carriers for injuries to their servants engaged in interstate commerce, "the State was thereby precluded from enacting any law of that sort which would have that effect, for the field of policy and legisla- ti(m was thus assumed by Congress and withdrawn from State competency." (Wisconsin v. C, M. & St. P. Ry. Co., 117 N. W. 686.) In the course of his opinion in the case above cited. Jus- tice Dodge, delivering the unanimous opinion of the Supreme Court of Wisconsin, very clearly stated this doc- trine and the authority upon which it was based, as fol- lows : Within the field of authorized congressional action the federal power must, in the nature of things, be supreme in aU parts of the United States. ' ' This Constitution, and the laws of the United States which shall be made in pursuance thereof * * * shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." (Art. VI, par. 2, Const. U. S.). In Cooley v. Board of Wardens (12 How. 299, 318), it was said of this class of legislation : " It is not the mere existence of such power, but its exercise by Congress, which may be incompatible with the exercise of the same power by the States, and that the States may legislate in the absence of congressional legislation." In Pennsyl- vania v. Wheeling, etc., Co. (18 How. 431), where a state law au- thorized the buUding of a bridge over a navigable water, it was de- clared that even in the matter of a bridge, "if Congress chooses to act, its action necessarily precludes the action of the State." In United States v. Colorado & N. W. R. Co. (157 Fed. Rep. 321, 330), Sanborn, J., remarks: ' ' The Constitution reserved to the nation the unlimited power to regulate interstate and foreign commerce, and if that power can not be effectually exercised without affecting intrastate commerce, then Congress may undoubtedly in that sense regulate intrastate commerce HOUSE COMMITTEE REPORT ON 1910 AMENDMENTS 345 so far as necessary in order to regulate interstate commerce fully and effectually. * * * That power is not subordinate, but is paramount to all the powers of the States. If its independent and lawful exercise of this congressional power and the attempted exercise by a State of any of its powers impinge or conflict, the former must prevail and the latter must give way." (See also Gibbons v. Ogden, 9 Wheat. 1, 209, 210). It will be observed from these utterances that it is not a mere question of conflicting laws in the two jurisdictions, so that the law of a State will be valid so far as not antagonistic to a federal law. The question is more properly one of jurisdiction over the subject, the holding being that within the second class of subjects above out- lined silence of Congress is deemed a relegation to the States of such jurisdiction and authority, but action by Congress upon the particular subject is deemed an assertion of the federal power, a declaration of the policy that the subject shall be under federal and not state regulation, and that, therefore, the power shall no longer rest in the State to exercise that authority which by the Constitution of the United States was surrendered to the Federal Government when and if Congress deemed its exercise advisable. In a recent decision of the Court of Civil Appeals, State of Texas, the court unanimously stated this doctrine as follows : It is well settled that the power of Congress to regulate interstate commerce under the provisions of the Constitution before mentioned is plenary and includes the power to prescribe the qualifications, duties, and liabilities of employees of railway companies engaged in inter- state commerce, and any legislation by Congress on such subject supersedes any state law upon the same subject. (Railway Co. v. Alabama, 128 U. S. 99; Howard v. Railway Co., 207 U. S. 4630 The constitutional right of Congress to legislate upon this subject having been exercised by that body, the right of the State to invade this field of legislation ceased, or, at all events, no act of a state legis- lature in conflict with the act of Congress upon the same subject can be held valid. The supreme courts of Missouri and Wisconsin in passing upon the validity of statutes of said States similar to the act we are considering, hold such statutes void upon the ground of con- flict with the act of Congress before mentioned. (State v. Mo. Pac. Ry. Co,, 111 S. W. 500; State v. C. M. & St. P. Ry. Co., 117 N. W. 686.) Judge Cooley, in his work on Constitutional Limitations, seventh edition, 856, said: 346 • APPENDIX It is not doubted that Congress has the power to go beyond the general regulation of commerce which it is accustomed to establish, and to descend to the most minute directions, if it shall be deemed advisable; and that to whatever extent ground shall be covered by these directions, the exercise of state power is excluded. It is therefore undoubtedly the law that congressional action upon the liability of carriers engaged in interstate commerce, for injuries to their employes, supersedes all State legislation upon the same subject, and renders them, as long as the Federal law remains in operation, of no avail as providing a legal remedy. Many of the States provide by statute for the survival of any action which the deceased may have had for the injury to his estate, and for any expenditures during his lifetime resulting from the injury. In the phraseology of the existing Employers' Liability Act — that is, the Act of April 22, 1908 — the expression used is, as to the question now under consideration : Shall be liable in damages * * * in case of the death of such employee, to his or her personal representative for the benefit of the surviving widow or husband and children of such employee; and if none, then of such employee's parents; and if none, then of the next of kin dependent upon such employee, for such injury or death re- sulting in whole or in part from the negligence of any of its officers, agents, employees, * * *. " In the case of Fulgam v. Midland VaUey R. R. Company, hereinbefore cited, the court said: In the opinion of the court, right of action given to the injured employee by the act of April 22, 1908, does not survive to his personal representative in the event of his death, but, at common law, perishes with the injured person. In the case of Walsh, admx., v. New York, New Haven & Hartford Railroad Company, Circuit Judge LoweU, who delivered the opinion of the court, said in a case arising under the Employers' Liability Act of April 22, 1908, after quoting the case of Fulgam v. Midland Valley R. R. Co. (167 Fed. 660) : The defendant has further demurred to counts one and four, con- HOUSE COMMITTEE REPORT ON 1910 AMENDMENTS 347 tending that the employee's cause of action to recover for his con- scious suffering did not survive to his administratrix, although the existence of some of the statutory relatives was alleged. As the cause of action is given by a federal statute, this court can not have recourse to a state statute in order to determine whether the cause of action survives or not. (Schreiber v. Sharpless, 110 U. S. 76, 80; B. & O. R. E. v. Joy, 17,3 U. S. 226, 230; U. S. v. DeGoer, 38 Fed. 80; U. S. V. Eiley, 104 Fed. 275.) Revised Statutes, section 955, provides that ' ' When either of the parties, whether jslaintiff or petitioner, or defendant, in any suit in any court of the United States, dies before final judgment, the executor or administrator of such deceased party may, in case the cause of action survives by law, prosecute or defend any such suit to final judgment." This section does not itself pro- vide what causes of action shall survive, but in the absence of other controlling statute leaves the matter to the common law. In the case at bar, therefore, the state statutes are inapplicable. There is no general federal statute, and the particular statute in question, the act of 1908, says nothing about survival. Thus remitted to the common law, at which survival is out of the question, we must here hold that the cause of action did not survive and so that counts one and four are demurrable. (Fulgam v. Mid- land VaUey Co., 167 Fed. 660.) The court is justified in saying that this result has been reached with reluctance. The maxim "Actio personalis moritur cum persona ' ' has not always commended itself. (Pollock on Torts, Webb's ed., p. 71.) The survival of the cause of action in this case is allowed by the statutes of many States. That one who has suffered in body and in purse by the fault of another, and so has a cause of action against the wrongdoer, should, as to his own estate, be dejirived of this remedy by the delays of the law, or without such delay, by his death, before or after action brought, whether connected or unconnected with his first injury, seems to me, as to Sir Frederick PoUock, a barbarous rule. The intent or the oversight of the legislature has established the ride in this case. The language of the statute should be made clear so that the uncertainty and obscurity suggested by Judge Lowell would be removed. So important a statute should be made so certain in its terms that the intent of Congress may be made manifest and clear. It certainly should be as broad, as comprehensive, and as inclusive in its terms as any of the similar remedial statutes existing in any of the States, which are suspended in their operation by force of the Federal legislation upon the subject. APPENDIX F REPORT OF JUDICIARY COMMITTEE OP SENATE ON AMENDMENTS OF 1910 TO FEDERAL EMPLOYERS' LIABILITY ACT OF 1908 The Committee on the Judiciary, having under considera- tion House bill 17263, reports as follows : It is of importance at the outset that Congress give care- ful and serious consideration to remedying any defects in the practical operation of the Employers' Liability Law from time to time as such defects are developed by proceed- ings in court. This serious attention seems demanded because the good faith of Congress in passing the original act has been made the subject of attack in a publication which has been given wide circulation among railroad coun- sel of the country. At page 83 of this publication entitled, "Unconstitutionality of the Federal Employers' Liability Act," published by the Price, Lee & Adkins Company, in the course of an argument of Mr. Edward D. Robbins, gen- eral counsel of the New York, New Haven & Hartford Railroad Company, in two cases, Mondou v. New York, New Haven & Hartford Railroad Company, and Hoxie v. New York, New Haven & Hartford Railroad Company (73 Atl. Rep, 754) , appears the following : Does any member of this court believe that this statute would ever have been passed except on the eve of a presidential election under the influence of the great railvpay unions of this country? If this act did not have so many votes behind it, would the executive department of the United States be here, participating in private litigation, for the purpose of defending its constitutionality? If there ever was a case in which the courts might properly be appealed to, to set up the fundamental "law of the land" as a bul- wark against the arbitrary exercise of power by a Democratic major- 348 SENATE JUDICIARY COMMITTEE EEPOET 349 ity and by elected Representatives who fear that majority, I think this is that case. We. may remark in passing that this gratuitous statement could have no proper place in a legal discussion, for the Supreme Court of the United States said in the McCray case (196 U. S. 27) — the decisions of this court from the beginning lend no support what- ever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted. As such an argument could receive no recognition from any court as a basis of judicial action, as has been pointed out by the Supreme Court in the McCray case, it is strange that it should find its place in the presentation of a serious matter to a court. This subject is referred to here only for the purpose of calling upon Congress to make entirely manifest the good faith of the legislature in the enactment of the Employers' Liability Law, which places such strin- gent liability upon the railroads for injuries to their employes as to compel the highest safeguarding of the lives and limbs of the men in this dangerous employment. The tremendous loss of life and limb on the railroads of this country is appalling. The total casualties to train men of the interstate railroads of the United States for the year 1908 was 281,645. It was the intention of Congress in the enactment of this law originally, and it may be presumed to be the intention of the present Congress to shift the burden of the loss result- ing from these casualties from ' ' those least able to bear it, ' ' and place it upon those who can, as the Supreme Court said in the Taylor case (211 U. S. 281), "measurably control their causes." The passage of the original act and the perfection thereof by the amendments herein proposed, stand forth as a dec- laration of public, policy to radically change as far as con- gressional power can extend, those rules of the common law which the President in a recent speech at Chicago eharac- 350 APPENDIX terized as "unjust." President Taft, in his address at Chicago, September 16, 1909, referred "to the continuance of unjust rules of law exempting employers from liability for accidents to laborers." This public policy which we now declare is based upon the failure of the common-law rules as to liability for acci- dent to meet the modern industrial conditions, and is based not alone upon the failure of these rules in the United States, but their failure in other countries as well. Mr. Asquith, present prime minister of England, said: It was revolting to sentiment and judgment that men who met with accidents through the necessary exigencies of daily occupation, should be a charge upon tlieir own families. The passage of the law was urged upon the strongest and highest considerations of justice and promotion of the pub- lic welfare. It was largely influenced by the strong mes- sage of President Roosevelt to the Sixtieth Congress in December, 1907, in which the basis of the legislation was clearly and strongly placed upon the ground of justice to the railroad workmen of this countiy and in which legis- lation was urged to the limit of congressional power upon this subject. In the message President Roosevelt said: The practice of putting the entire burden of loss to life or limb upon the victim or the victim 's family is a form of social injustice in which the United States stands in unenviable prominence. In both our fed- eral and our state legislation we have, with few exceptions, scarcely gone farther than the repeal of the fellow-servant principle of the old law of liability, and in some of our States even this slight modifica- tion of a completely outgrown principle has not yet been secured. The legislation of the rest of the industrial world stands out in striking contrast to our backwardness in this respect. Since 1895 practically every country in Europe, together with Great Britain, New Zealand, Austria, British Columbia, and the Cape of Good Hope, has enacted legislation embodying in one form or another the complete recogni- tion of the principle which places upon the employer the entire trade risk in the various lines of industry. In the second volume of Labatt on "Master and Serv- ant," at page 1325, the learned author, after an able discus- SENATE JUDICIARY COMMITTEE REPORT 351 sion of the reasons given by the courts of the doctrine deny- ing a remedy to servants injured by the negligence of fellow-servants, says : It would appear, therefore, that the doctrine of common employment stands in the singular predicament that it rests very largely, if not entirely, upon a basis of suggested facts which we are asked to accept upon the mere ipse dixit of a certain number of gentlemen who have attained greater or less distinction in a profession which, to say the very least, does not specially qualify them to form a reliable opinion in respect to the subject-matter. This situation, which would, in any event, be extremely unsatis- factory, is reduced to something like an absurdity by the fact that the judicial theory as to the supposed inevitable consequences of allowing servants to recover for the negligence of their coemployes has long since been exploded by the logic of actual occurrences, the significance of which is unmistakable. In England and her colonies, as well as in America, statutes have been passed which have greatly restricted the operation of the doctrine of common employment. (See Chapters XXXVII-XL, post.) No one would have the hardihood to maintain, in the absence of any specific evidence pointing to that conclusion, that, as a result of the legislation, servants have become to a marked degree less careful and efficient, or that industrial development has been crippled and retarded to an appreciable extent. The practical infer- ence is manifest. If, in countries where the doctrine of common em- ployment has been more or less circumscribed, none of the evil results which it is declared to have obviated can be detected, it may be safely concluded that no harm would have been produced if the doctrine had never been applied, and that no harm will result if it should be entirely abrogated by the legislatures, the only authority by which such a change in the law can now be effected. This general consideration of the importance of the sub- ject involved in the legislation and the justice of the rule which Congress has established upon this subject is intro- ductory to the specific questions involved in the pending measure. These questions have been so thoroughly covered and fully treated by the report of the House committee that we quote and adopt quite fully the discussion on that sub- ject in the House committee report. The proposed amendments to the employers' liability bill may be considered under three heads: First, as to the venue of such an action ; second, as to the concurrent juris- 352 APPENDIX diction of the courts of the several States ; and, third, as to the survival of the right of action. (1) As to venue. The amendment proposed as to insert- ing in section 6 after the words therein, "that no such action shall be maintained under this act unless commenced within two years from the day cause of action accrued, ' ' the following : Under this act an action may be brought in a circuit court of the United States, in the district of the residence of either plaintiff or the defendant, or in which the cause of action arose, or in which the defendant shall be found at the time of the commencement of such action. In his special message of January 7, 1910, President Taft, after referring to a proposed amendment to give the Inter- state Commerce Commission power to determine the uni- form construction of all steps, ladders, hand brakes, etc., said: The question has arisen in the operation of the interstate commerce employers ' liability act as to whether suit can be brought against the employer company in any place other than of its home office. The right to bring the suit under this act should be as easy of enforcement as the right of a private person not in the company's employ to sue on an ordinary claim, and process in such suit should be sufficiently served if upon the station agent of the company upon whom service is authorized to be made to bind the company in ordinary actions arising under state laws. Bills for both the foregoing purposes have been considered by the House of Eepresentatives, and have been passed, and are now before the Interstate Commerce Committee of the Senate. I earnestly urge that they be enacted into law. AMENDMENT AS TO JURISDICTION — PLACE WHERE SUIT MAY BE BROUGHT This amendment is necessary in order to avoid great inconvenience to suitors and to make it unnecessary for an injured plaintiff to proceed only in the jurisdiction in which the defendant corporation is an "inhabitant." This is held by the courts to be the jurisdiction in which the charter of the defendant corporation was issued. This SENATE JUDICIARY COMMITTEE REPORT 353 may be at a place in a distant State from the home of the plaintiff, and may be a thousand miles or more from the place where the injury was occasioned. The extreme difficulty, if not impossibility, of a poor man who is injured while in railroad employ, securing the attendance of the necessary witnesses at such a distant point makes the remedy given by the law of little avail under such circumstances. That such is the state of law is established by reference to the case of Cound v. Atchison, Topeka & Santa Fe Rail- way Company, decided November 6, 1909, in the United States Circuit Court for the El Paso division of the western district of Texas by Judge IMaxey. Judge Maxey in the case before him sustained the railroad's plea to the juris- diction and dismissed a suit brought in Texas under the Employers' Liability Act on tlie ground that there was diversity of citizenship in a suit based on a law of the United States. In his opinion Judge Maxey says : Eeferring to the statute and eliminating the federal feature of the present case, the jurisdiction of the court would be clear beyond con- troversy, since in that case the jurisdiction would be founded only on the fact of diverse citizenship. But here there appear two sources of jurisdiction, the one founded on diverse citizenship and the other upon the fact that the suit arises under a law of the United States. In the former case the statute authorizes suit to be brought in the district of the residence of either the plaintiff or the defendant, where the jurisdiction is founded only on the fact that the action is between citizens of different States ; while in the latter suit must be brought in the district of which the defendant is an inhabitant. The position taken by Judge JNIaxey in the case just cited is fortified by the opinion of the Supreme Court of the United States in the case of J\Iacon Grocery Co. v. Atlantic Coast Line Railroad et al., decided within a few weeks. It seems clear from these decisions that a suit in a Federal court under this law, where jurisdiction is founded on the fact that the case involves a Federal . statute, must be Hoberts Liabilities^vlS 354 APPENDIX brought in the district of which the defendant is an inhab- itant. No argument is necessary to convince that this is a grave injustice to the plaintiff. Such an embarrassing situation ought not to be permitted to exist where any plaintiff is proceeding in a Federal court on a right based on the law of the United States. But to permit it to be a practical barrier to the mainte- nance of an action for death or personal injuries of employes who may be presumed to be unable to meet the expense of presenting their case in a jurisdiction far from their homes would be an injustice too grave and serious to be longer permitted to exist. CONCURRENT JURISDICTION OF STATE COURTS It is proposed to further amend the act by making the jurisdiction of the courts of the United States ' ' concurrent with the courts of the several States." This is proposed in order that there shall be no excuse for courts of the States to follow in the error of the Supreme Court of Errors of Connecticut in the case of Hoxie v. N. Y., N. H. & H. R. R. Co. (73 Atlantic Rep. 754), in which case the court declined jurisdiction upon the ground, i7iter alia, that Congress did not intend that jurisdiction of cases arising under the act should be assumed by state courts. It is clear under the decisions of the Supreme Court of the United States that this conclusion of the Connecticut court is erroneous. And the reasons recited by the Con- necticut court lead to an opposite conclusion from that which the opinion declares upon the subject. But no harm can come, and much injustice and wrong to suitors may be prevented by an express declaration that there is no intent on the part of Congress to confine remedial actions brought under the Employers' Liability Act to the courts of the United States. In declaring that the jurisdiction of the United States SENATE JUDICIARY COMMITTEE REPORT 355 courts shall be "concurrent with the courts of the several States, ' ' Congress is clearly within its rights and powers. The first precedent for such declaration is found in the action of the First Congress. In the act of September 24, 1789, it was enacted that the district courts of the United States — • shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States, (c) And shall also have cognizance, con- current as last mentioned, of all suits at common law where the United States sue, and the matter in dispute amounts, exclusive of costs, to the sum or value of one hundred dollars (U. S. Stat. L., Vol. I, p. 77). This precedent has repeatedly been followed in Federal legislation. Thus early was it established by those who understood the full scope and operation of the Constitution of the United States, that the "supreme law of the land" did not lose any of its imperative obligation at the door of a state court. The express declaration of the United States Constitution says of laws enacted by Congress in pursuance of its dele- gated powers, ' ' and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." This declaration of the Constitution is not meaningless. That the "judges in every State shall be bound" by a Fed- eral law imposes a binding duty to enforce it. This provision leaves no discretion to a judge of a state court to deny justice to a suitor because his right is based on a Federal law. The Connecticut court says that this Federal statute known as the Employers' Liability Act, "would also compel courts established by a sovereign power, and maintained at its expense for the enforcement of what is deemed justice, to enforce what it deemed injustice." We may disregard for the moment the suggestion of the injustice of a particu- lar statute. The local opinion of the justice of a particular law is no obstacle to its enforcement if it be a binding law. 856 APPENDIX We will therefore consider the proposition solely as if the factor of local opinion as to its justice was eliminated from controversy. A court may err in its estimate of what its State really did "consider injustice." Does the fact that state courts are ' ' established by a sov- ereign power and maintained at its expense ' ' permit denial of enforcement in such courts af a right founded on a Fed- eral statute? This question is squarely answered in a case which, strangely enough, is cited by the court in the Hoxie case. (Clafliu V. Houseman, 93 U. S. 130.) In this case Mr. Jus- tice Bradley says: The fact that a state court derives its existence and functions from the state laws is no reason why it should not afford relief, because it is subject also to the laws of the United States, and is just as much bound to recognize these as operative within the State as it is to recognize the state laws. Chancellor Kent, in his Commentaries (1 Com. 400), says: In judicial matters the concurrent jurisdiction of the state tribunals depends altogether upon the pleasure of Congress, and may- be revoked and extinguished whenever they think proper, in every case in which the subject-matter can constitutionally be made cognizable in the federal courts; and that, without an express provision to the contrary, the state courts will retain a concurrent jurisdiction in all cases where they had jurisdiction originally over the subject-matter. To quote from Cooley 's Principles of Constitutional Law, pages 32-33 : A state law must yield to the supreme law, whether expressed in the Constitution of the United States or in any of its laws or treaties, so far as they come in collision, and whether it be a law in existence when the "supreme law" was adopted or enacted afterwards. The same is true of any provision in the constitution of any State which is found to be repugnant to the Constitution of the Union. And not only must "the judges in every State" be bound by such supl^eme law, but so must the State itself, and every official in all its depart- ments, and every citizen. SENATE JUDICIARY COMMITTEE REPORT 357 And in the notes, pages 33-35, we read: The United States is a government with authority extending over the whole territory of the Union, acting upon the States and the people of the States. While it is limited in the number of its pow- ers, so far as its sovereignty extends it is supreme. No state gov- ernment can exclude it from the exercise of any authority conferred upon it by the Constitution, obstruct its authorized officers against its will, or withhold from it for a moment the cognizance of any sub- ject which that instrument has committed to it. (Tennessee v. Davis, 100 U. S. 257, per Strong, J.; see also In re Debs, petitioner, 158 U. S. 564; Logan v. United States, 144 U. S. 263; * * * Dodoe V. Wolsey, 18 How. 331; Jefferson Branch Bank v. Skelly, 1 Black. 436; Cummings v. Missouri, 4 Wall. 277; Eailroad Co. v. McClure, 10 Wall. 511; White v. Hart, 13 Wall. 646; Gunn v. Barry, 15 Wall. 610; Pacific Railroad Co. v. Maguire, 20 Wall. 36; St. Louis, &c., Ry. Co. V, Vickers, 122 U. S. 360.) A state can not control the con- duct of an agency of the Federal Government within its limits, if the result would be a conflict with national law or an impairment of the efficiency of the agency. (Davis v. Elmira Savings Bank, 161 U. S. 275; McClellan v. Chipman, 164 U. S. 347. Compare Eeagan v. Mer- cantile Trust Co., 154 U. S. 413.) Whenever the terms in which a power is granted to Congress, or the nature of the power, require that it should be exercised exclusively by Congress, the subject is as completely taken from the state legislature as if they had been expressly forbidden to act. (Marshall, C. J., in Sturges V. Crowninshield, 4 Wheat. 122.) In Robb V. ConnoUy (111 U. S. 637), Mr. Justice Harlan said: Upon the state courts, equally with the courts of the Union, rests the obligation to guard, enforce, and protect every right granted or secured by the Constitution of the United States and the laws made in pursuance thereof. Wherever those rights are involved in any suit or proceeding before them; for the judges of the state courts are required to take an oath to support that Constitution, and they are bound by it, and the laws of the United States made in pursuance thereof, and aU treaties made under their authority, as the supreme law of the land, "anything in the constitution or laws of any State to the contrary notwithstanding. ' ' If they fail therein, and with- hold or deny rights or immunities secured by the Constitution and laws of the United States, the party aggrieved may bring the case from the highest court of the State in which the question could be decided to this court for final and conclusive determination. 358 APPENDIX In re Matthews (122 Fed. Rep. 248, p. 251) : The second clause of article 6 of the Federal Constitution is in these words: ' ' This Constitution and the laws of the United States, which shaU be made in pursuance thereof, and aU treaties made or which shall be made under the authority of the United States, shall be the su- preme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the con- trary notwithstanding. ' ' A recent writer in the American Law Review has had this to say concerning this clause, to-wit: "This provision presupposes that the judges in every State will have some knowledge of the Constitution, the laws, and the treaties of the Federal Government by which they are thus to be bound; and this community of interest and obligation obviously makes the judi- cial officers of the several States, in a certain high sense, members of the federal judiciary. ' ' In the case of Robb v. Connolly (111 U. S. 637, 4 Sup. Ct. 551, 28 L. Ed. 542), Mr. Justice Harlan said: "A state court of original jurisdiction, having the parties before it, may, consistently with existing federal legislation, determine cases at law or in equity arising under the Constitution and laws of the United States, or involving rights dependent upon such Constitution or laws. ' ' And again: ' ' Upon the state courts, equally with the courts of the Union, rests the obligation to guard, enforce, and protect every right granted or secured by the Constitution of the United States, and the laws made in pursuance thereof, whenever these rights are involved in any suit or proceeding before them." In the case of Ex parte Royall, supra, Mr. Justice Harlan said: In Taylor v. Carryl (20 How. 595, 15 L. Ed. 1028) it was said to be a recognised portion of the duty of this court (and, we wiU add, of all other courts, national and state) "to give preference to such principles and methods or procedure as shall seem to conciliate the SENATE JUDICIARY COMMITTEE REPORT 359 distinct and independent tribunals of the States and of the Union, so that they may co-opei-ate as harmonious members of a judicial system, coextensive with the United States, and submitting to the paramount authority of the same Constitution, laws, and federal obligations. ' ' And in Covell v. Heyman (111 U, S. 182, 4 Sup. Ct. 358, 28 L. Ed. 390) it was declared "that the forbearance which courts of co-ordi- nate jurisdiction, administered under a single system, exercise toward each other, whereby conflicts are avoided by avoiding interference with the process of the other, is a principle of comity, with perhaps no higher sanction than the ability of which comes from concord; but between state courts and those of the United States it is something more. It is a principle of right and of law, and therefore of neces- sity. ' ' Pc»neroy, ' ' Introduction to the Constitutional Law of the United States, ' ' third edition, 503, Section 743 : Strip the National Government of an authority to apply a sanction commensurate with its power to legislate, and just so far we subtract from that legislation the necessary element of a command. Strip the Government of the ability to make that sanction supreme, and we equally invalidate the authority of the legislative utterance. This attribute of supremacy would be destroyed by permitting the state courts, for example, to decide upon the effect of national laws, and by making their decisions in the particular State where made of an equal authority with those pronounced upon the same subject by the national judges. This difficulty thus to be apprehended from the action of state tribunals could only be prevented in one of two ways — either by removing from them the power to decide at all upon rights and duties which spring from the national legislation and conferring the function exclusively upon the United States courts, or by per- mitting the state judiciary to exercise a jurisdiction in such cases, but making that jurisdiction subordinate to the authority of the na- tional courts and rendering the local decisions reviewable by the United States judges, who could in this manner enforce their at- tribute of supremacy in relation to the matters under consideration. In theory the former of these plans would have been the more sim- ple and perfect. But it was perhaps best, from some motives of expediency, that the Constitution should not expressly determine be- tween these two methods, but should clothe Congress with the power of making such a choice of the alternatives as should be found to promote the convenience of the people. Congress possesses such an authority; it might make aU this jurisdiction exclusive in the national courts, but has done so only in particular cases; it might suffer the state tribunals to exercise a complete concurrent- power, subject to 360 APPENDIX an equally complete liability to review, but has done so only to a limited extent. WTiether Congress shall adopt one or the other alter- native is a mere question of policy; it may do either. * * * The Supreme Court of the United States, in Teal v. Ful- ton (53 U. S. 292), referring to this subject, said: We will add that the legislation of Congress immediately after the Constitution was carried into operation confirms the conclusion of the learned judge. We find in the twenty-fifth section of the judiciary act of 1789, under which this case is before us, that such a concur- rent jurisdiction in the courts of the States and the United States was contemplated, for its first provision is for a review of cases adjudicated in the forum, "where is drawn in question the validity of a treaty or a statute of, or an authority exercised by, the United States, and the decision is against their validity. ' ' The Supreme Court of the United States decided in this ease of Teal v. Fulton, that a state court had jurisdiction to try an action brought against a postmaster who refused to deliver a newspaper on which there was "an initial" unless the addressee would pay letter postage, the action being founded on the thirteenth and thirtieth sections of the act of Congress passed in 1825 forbidding a writing or memoran- dum on a newspaper or other printed matter, pamphlet, or magazine transmitted by mail. The court said, Mr. Justice Wayne delivering the opinion : But it is said that the courts of New York had not jurisdiction to try the case. The objection may be better answered by reference to the laws of the United States in respect to the services to be rendered in the transmission of letters and newspapers by mail and by the Constitution of the United States than it can by any general rea- soning upon the concurrent civil jurisdiction of the courts of the United States and the courts of the States, or concerning the exclusive jurisdiction given by the Constitution to the former. The United States imdertakes at fixed rates of postage, to convey letters and newspapers for those to whom they are directed, and the postage may be prepaid by the sender or be paid when either reach their destination by the person to whom they are addressed. When tendered by the latter or by his agent he has the right to the immedi- ate possession of them, though he has not had before the actual jjos- session. If they be wrongfully withheld for the charge of unlawful SENATE JUDICIARY COMMITTEE REPORT 361 postage, it is a conversion for which suit may be brought. His right to sue existing, he may sue in any court having civil jurisdiction of such a case, unless for some cause the suit brought is an exception to the general jurisdiction of the court. Now, the courts of New York having jurisdiction in trover, the case in hand can only be excepted from it by such a case as this having been made one of exclusive jurisdiction in the courts of the United States by the Constitution of the United States. That such is not the case, we can not express our view better than Mr. Justice Wright has done in his opinion in this case in the court of appeals. After citing the second section of the third article of the Constitution, he adds, ' ' This is a mere grant of jurisdiction to the federal courts, and limits the extent of their power, but without words of exclusion or any attempt to oust the state courts of concurrent jurisdiction in any of the specified cases in which concurrent jurisdiction existed prior to the adoption of the Constitution. The apparent object was not to curtail the powers of the state courts, but to define the limits of those granted to the federal judiciary. ' ' We will add that the legisltion of Congress, immediately after the Constitution was carried into operation, confirms the conclusion of the learned judge. We find in the twenty-fifth section of the judiciary act of 1789, under which this case is before us, that such a concurrent jur- isdiction in the courts of the States and of the United States was contemplated, for its first provision is for a review of cases adjudi- cated in the former, ' ' Where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity. ' ' We are satified that there was no error in the decision of the court of appeals in this case, and the same is afBLrmed by this court. In the case of The Moses Taylor (1866, 4 Wall., U. S., 428) the court said: * * * The judiciary act of 1789, in its distribution of jurisdic- tion to the several federal courts, recognizes and is framed upon the theory that in all cases to which the judicial power of the United States extends Congress may rightfully vest exclusive jurisdiction in the federal courts. It declares that in some cases, from their com- mencement, such jurisdiction shall be exclusive; in other eases it de- termines at what stage of procedure such jurisdiction shall attach, and how long and how far concurrent jurisdiction of the state courts shall be permitted. Thus, cases in which the United States are parties, civil causes of admiralty and maritime jurisdiction, and cases against consuls and vice-consuls, except for certain offenses, are 362 APPENDIX placed, from their commencement, exclusively under the cognizance of the federal courts. On the other hand, some cases, in which an alien or a citizen of another State is made a party, may be brought either in a federal or a state court, at the option of the plaintiff; and if brought in the state court may be prosecuted untU the appearance of the defendant, and then, at his option, may be suffered to remain there, or may be transferred to the jurisdiction of the federal courts. Other cases, not included under these heads, but involving questions under the Constitution, laws, treaties, or authority of the United States, are only drawn within the control of the federal courts upon appeal or writ of error, after final judgment. By subsequent legislation of Congress, and particularly by the legislation of the last four years, many of the cases, which by the judiciary act could only come under the cognizance of the federal courts after final judgment in the state courts, may be withdrawn from the concurrent jurisdiction of the latter courts at earlier stages, upon the application of the defendant. The constitutionality of these provisions can not be se- riously questioned, and is of frequent recognition by both state and federal courts. It is difficult to understand why the Connecticut court cites the case of Clailin v. Houseman (93 U. S. 130) as authority for the remarkable position taken, for a careful consideration of the opinion of IMr. Justice Bradley in that case shows conclusively that the opinion affords no basis for the contention made by the court that the state court is not authorized and required to enforce Federal statutes. In his opinion, Mr. Justice Bradley said : The general question, whether state courts can exercise concurrent jurisdiction with the federal courts in cases arising under the Con- stitution, laws, and treaties of the United States has been elaborately discussed, both on the bench and in published treatises; sometimes with a leaning in one direction and sometimes in the other; but the result of these discussions has, in our judgment, been, as seen in the above cases, to affirm the jurisdiction where it is not excluded by ex- press provision or by incompatibility in its exercise arising from the nature of the particular case. When we consider the structure and true relations of the federal and state governments, there is really no just foimdation for excluding the state courts from all such jurisdiction. The laws of the United States are laws of the several States, and SENATE JUDICIARY COMMITTEE ElEPORT 363 just as much bindiug on the eitLzens and courts thereof as state laws are. The United States is not a foreign sovereignty as regards the sev- erel States, but is a concurrent and, within its jurisdiction, paramount sovereignty. Every citizen of a State is a subject of two distinct sovereignties, ha\'ing concurrent jurisdiction in the State: concurrent as to place and persons, though distinct as to subject-matter. Legal or equitable rights, acquired under either system of laws, may be enforced in any court of either sovereignty competent to hear and detennine such kind of rights and not restrained by its constitution in the exercise of such jurisdiction. Thus a legal or equitable right acquired under state laws may be prosecuted in the state courts and also, if the parties reside in different States, in the federal courts. So rights, whether legal or equitable, acquired under the laws of the United States may be prosecuted in the United States courts or in the state courts competent to decide rights of the like character and class, subject, however, to this qualification, that where a right arises under a law of the United States, Congress may, if it see fit, give to the federal courts exclusive jurisdiction. See remarks of Mr. Justice Field in The Moses Taylor (4 Wall. 429, 71 U. S., XVIII, 401), and Story, J., in Martin v. Hunter (1 Wheat. 334), and Mr. Justice Swayne in Ex parte McNeil (13 Wall. 236, 80 U. S., XX, 624). This jurisdiction is sometimes exclusive by express enactment and sometimes by implication. If an act of Congress gives a penalty to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some act of Congress, by a proper action in a state court. The fact that a state court derives its existence and functions from the state laws is no reason why it shoiUd not afford relief, because it is subject also to the laws of the United States, and is just as much bound to recognize these as operative within the State as it is to recognize the state laws. The two together form one system of jur- isprudence which constitutes the law of the land for the State; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent. The disposition to regard the laws of the United States as emanat- ing from a foreign jurisdiction is founded on erroneous views of the nature and relations of the state and federal governments. It is often the cause or the consequence of an unjustifiable jealousy of the United States Government which has been the occasion of dis- astrovis evils to the country. It is true the sovereignties are distinct, and neither can interfere 364 APPENDIX mth the proper jurisdiction of the other, as was so clearly shown by Chief Justice Taney in the case of Ableman v. Booth (21 How. 506, 62 U. S., XVI, 169), and hence state courts have no power to revise the action of the federal courts, nor the federal the state, except where the Federal Constitution or laws are involved. But this is no rea- son why state courts should not be open for the prosecution of rights growing out of the laws of the United States, to which their jurisdic- tion is competent and not denied. * * * In Ex parte Siebold (100 U. S.) the court said: The power of Congi-ess, as we have seen, is paramount, and may be exercised at any time and to any extent which it deems expedient; and so far as it is exercised and no further the regulations affected supersede those of the State which are inconsistent therewith. As a general nde, it is no doubt expedient and wise that the opera- tions of the state and national governments should, as far as prac- ticable, be conducted separately, in order to avoid undue jealousies and jars and conflicts of jurisdiction and power. But there is no reason for laying this down as a rule of universal application. It should never be made to override the plain and manifest dictates of the Constitution itself. We can not yield to such a transcendental view of state sovereignty. The Constitution and laws of the United States are the supreme law of the land, and to these every citizen of every State owes obedience, whether in his individual or ofiicial capacity. There are very few subjects, it is true, in which our system of government, complicated as it is, requires or gives room for conjoint action between the state and national sovereignties. Generally, the powers given by the Constitution to the Government of the United States are given over distinct branches of sovereignty from which the state governments, either expressly or by necessary implication, are excluded. But in this case expressly, and in some others by implication, as we have seen in the case of pilotage, a concurrent jurisdiction is contem- plated, that of the State, however, being subordinate to that of the United States, whereby all question of precedency is eliminated. The position assumed by the court on this question is with- out precedent and is entirely untenable in the light of the judicial history of the United States. If a Federal right can not be the basis of a plaintiff's claim in a state court; if those courts derive their power and authority and compensa- tion from the States for the purpose of deciding only SENATE JUDICIARY COMMITTEE REPORT 365 controversies arising under the law of the State, written and unwritten, then a defense based upon a Federal right would be equall}^ unenforceable in said courts. If they refuse to try Federal questions for a plaintiff, because they are without jurisdiction, how can they consent to try a Federal question when asserted as a ground of defense by the party proceeded against? In a comparatively recent case the Supreme Court of the United States, in the case of the Defiance Water Co. v. Deiiance (191 U. S. 194), Chief Justice Fuller, in deliver- ing the opinion of the court, used the following language : Moreover, the state courts are perfectly competent to decide federal questions arising before them and it is their duty to do so. (Robb V. C/*nnolly, 111 U. S. 624, 637, 28 L. Ed. 542, 546, 4 Sup. Ct. Rep. 544; Missouri P. R. Co. v. Fitzgerald, 160 U. S. 556, 583, 40 L. Ed. 336, 543, 16 Sup. Ct. Rep. 389.) A ad we repeat, the presumption is in all cases that the state courts will do what the Constitution and laws of the United States require. (Chicago & A. R. Co. v. Wiggins Ferry Co., 108 U. S. 18, 27 L. Ed. 636, 1 Sup. Ct. Rep. 614, 617; Shreveport v. Cole, 129 U. S. 36, 32 L. Ed. 589, 9 Sup. Ct. Rep. 210; Neal v. Delaware, 103 U. S. 370, 389, 26 L. Ed. 567, 571; New Orleans v. Benjamin, 153 U. S. 411, 424, 38 L. Ed. 764, 769, 14 Sup. Ct. Rep. 905.) If error supervenes the remedy is found in paragraph 709 of the Revised Statutes. (U. S. Comp. Stat., 1901, p. 575.) In Claflin v. Houseman, ante, the court said: The United States is not a foreign sovereignty as regards the sev- eral States, but is a concurrent and, within its jurisdiction, para- mount sovereignty. * * * The disposition to regard the laws of the United States as emanat- ing from a foreign jurisdiction is founded on erroneous views of the nature and relations of the state and federal governments. It is often the cause or the consequence of an unjustifiable jealousy of the United States Government, which has been the occasion of dis- astrous evils to the country. Mr. Justice Shiras, in commenting upon the concurrent jurisdictional power of the state and federal courts, in the 366 APPENDIX case of Murray v. Chicago and N. W. Ry. Co. (62 Fed. Rep. 24), said: A further point is made in support of the demurrer, to the effect that this court succeeds only to the jurisdiction of the state court in which the action was originally brought, and that state courts have no jurisdiction over cases arising out of interstate commerce, the argument being that, as the State can not legislate touching inter- state commerce, the state courts are without power to determine cases of the like character. This position is not well taken. The limitations upon the legislative power of the nation and of the sev- eral States do not necessarily apply to the judicial branches of the national and state governments. The legislature of a State can not abrogate or modify any of the provisions of the Federal Constitution nor of the acts of Congress touching matters within congressional control, but the courts of the State, in the absence of a prohibitory provision in the Federal Constitution or acts of Congress, have fuU jurisdiction over cases arising under the Constitution and laws of the United States. The courts of the States are constantly called upon to hear and decide cases arising under the Federal Constitution and laws, just as the courts of the United States are called upon to hear and decide cases arising under the law of the State when the adverse parties are citizens of different States. The duty of the court is to explain, apply, and enforce the existing law in the particular cases brought before them. If the law applicable to a given case is of federal origin, the legislature of the State can not abrogate or change it, but the courts of the State may apply and enforce it; and hence the fact that a given subject, like interstate commerce, is beyond legis- lative control does not, ipso facto, prevent the courts of the State from exercising jurisdiction over cases which grow out of this com- merce. Had this action remained in the state court in which it was originally brought, the court would have had jurisdiction to hear and determine the issues between the parties, because Congress had not enacted that jurisdiction over cases of this character is confined ex- clusively to the courts of the United States, and therefore the juris- diction of the state court was full and complete. The discussion by Judge Baldwin of the right af a state court to refuse to enforce such a statute as the one in ques- tion and his reference to the "public policy" of a State as a ground for such a refusal to take jurisdiction indicate clearly that he had in mind the decisions as to the exercise of "comity" by the courts of one State in taking jurisdic- SENATE JUDICIARY COMMITTEE REPORT 367 tion of foreign laws; that is, the laws of another State. There are many decisions upon the right of a party to enforce in one State the statutes of another. If this was such a ease, there is authority for the position taken in the Hoxie case. But the decision in these cases is justified on the ground that statutes of other States (for- eign laws) have no extraterritorial force. Such decisions have no bearing when the question before a state court is the enforcement of a Federal law. This is not a mere question of comity; it is a question of authority. The Federal law is imperative, mandatory, and para- mount over every foot of the soil of every State. It is in no sense foreign when its application or enforcement is sought in the courts of a State. No policy of a State can impair its imperative obligation. No official of a State, sworn to support the Constitution of the United States can deny the enforcement of a statute of the United States, made in pursuance of the United States Constitution. Such law by the Constitution is made ' ' the supreme law of the land, anything in the Constitution or laws of any State to the contrary notwithstanding. ' ' How can a judge of a state court deny the imperative obligation of a Federal statute on any occasion in his court? Before he can lawfully assume the duties as such state judge he is bound by oath in obedience to the express requirements of the Constitution (Art. VI, sec. 3) to sup- port the Constitution of the United States, which in express terms makes Federal statutes "the supreme law of the land, ' ' and the judges in every State shall be bound thereby, "anything in the Constitution or laws of any State to the contrary notwithstanding. ' ' Federal laws are not dependent upon the judicial courtesy of state courts, to be enforceable in the courts of some States and to be refused enforcement in others. They are "the supreme law of the land, and the judges in every State shall be bound thereby, ' ' 368 APPENDIX SURVIVAL OP ACTION In considering the advisability of amending the act enti- tled ' ' An act relating to the liability of common carriers by railroads to their employes in certain cases," approved April 22, 1908, it is important at the outset to understand that the purpose of Congress in the passage of this act was to extend further protection to employes. This was its manifest purpose, as is apparent from a consideration of the circumstances of its enactment. It is manifest from a consideration of the reports, both of the Senate and House committees, when the measure was pending before those bodies prior to its enactment, that the purpose of the statute was to extend and enlarge the remedy provided by law to employes engaged in interstate commerce in cases of death or injury to such employes while engaged in such service. No purpose or intent on the part of Congress can be found to limit or to take away from such an employe any right theretofore existing by which such employes were entitled to a more extended remedy than that conferred upon them by the act. The effect of decisions of cases so far adjudicated under the act has been in general to recognize the true intent of Congress and to extend and make more ample the right to recover damages for death or injury to interstate servants, yet in some particulars its operation has been to limit a recovery which otherwise would have been open to the employe or his representative. One result of the passage of the law may be to nullify state laws affording a remedy in certain cases for death or injury in railroad service. The state laws which had been operative and which were valid even in their application to those engaged in service in interstate commerce appear to have been rendered, as to interstate servants, ineffective when Congress acted upon this subject. That this seems to have been the effect of the passage of this law was ex- pressly decided in a well-considered opinion by Judge SENATE JUDICIARY COMMITTEE REPORT 369 Rogers iu the case of Fulgam v. Midland Valley R. Co. (167 Fed. 660, p. 662) : It is clear that the act of April 22, 1908, supra, superseded and took the place of all state statutes regulating i-elations of employers and employes engaged in interstate commerce by railroads. It covered not only injuries sustained by employes engaged in that commerce resulting from the negligence of the master and his servants, and from defects in the designated instrumentalities in use in that com- merce, but also dealt with contributory and comparative negligence and assumed risk, making, in certain cases at least, the master an insurer of the safety of the servant while in his employment in that commerce. It covers and overlaps the whole state legislation, and is therefore exclusive. All state legislation on that subject must give way before that act. (Miss. Eailroad Commission v. 111. Cent. E. E. Co., 203 U. S. 335, 27 Sup. Ct. 90, 51 L. Ed. 209; Sherlock et al. v. Ailing, adminis- trator, 93 U. S. 104, 23 L. Ed. 819.) These last cases serve to show that, until Congress has acted wtih reference to the regulation of hi- terstate commerce, state statutes regulating the relations of master and servant and incidentally affecting interstate commerce, but not regulating or obstructing it, may be given effect; but when Con- gress has acted upon a given subject state legislation must yield. In Gulf, Colorado, etc., Eailroad Co. v. Hefley (158 U, S. 99, 19 Sup, Ct. 804, 39 L. Ed. 910) the court said: "When a state statute and a federal statute operate upon the same subject-matter, and pre- scribe different rules concerning it, the state statute must give way. ' ' When Congress acted upon the subject of the regulation of the liability of interstate carriers for injuries to their servants engaged in interstate commerce, "the State was thereby precluded from enacting any law of that sort which would have that effect, for the field of policy and legislation was thus assumed by Congress and withdrawn from state competency." (Wisconsin v. C, M. & St. P. Ry. Co., 117 N. W. 686.) In the course of his opinion in the case above cited, Justice Dodge, delivering the unanimous opinion of the supreme court of Wisconsin, very clearly stated this doctrine and the authority upon which it was based, as follows : Within the field of authorized congressional action the federal power must, in the nature of things, be supreme in all parts of the Roberts Liabilities — 24 370 APPENDIX United States. ' ' This Constitution, and the laws of the United States which shall be made in pursuance thereof * * * shall be the su- preme law of the land ; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the con- trary notwithstanding." (Art. VI, par. 2, Const. U. S.) In Cooley V. Board of Wardens (12 How. 299, 318), it was said of this class of legislation: "It is not the mere existence of such power, but its exercise by Congress, which may be incompatible with the exercise of the same power by the State, and that the States may legislate in the absence of congressional legislation. ' ' In Pennsylvania v. Wheel- ing, etc., Co. (18 How. 431), where a state law authorized the build- ing of a bridge over a navigable water, it was declared that even in the matter of a bridge ' ' if Congress chooses to act, its action neces- sarily precludes the action of the State." In United States v. Colorado & N. W. R. (157 Fed. Rep. 321, 330), Sanborn, J., remarks: "The Constitution reserved to the nation the unlimited power to regulate interstate and foreign commerce, and if that power can hot be effectually exercised without affecting intrastate commerce, then Congress may undoubtedly in that sense regulate intrastate commerce, so far as necessary, in order to regulate interstate commerce fully and effectually. * * * That power is not subordinate but is para- mount to all the powers of the States. If its independent and lawful exercise of this congressional power and the attempted exercise by a State of any of its powers impinge or conflict, the former must pre- vail and the latter must give way." (See also Gibbons v. Ogden, 9 Wheat. 1, 209, 210.) It will be observed from these utterances that it is not a mere question of conflicting laws in the two jurisdictions, so that the law of a State wUl be valid so far as not antagonistic to a federal law. The question is more properly one of jurisdiction over the subject, the holding being that within the second class of subjects above out- lined silence of Congress is deemed a relegation to the States of such jurisdiction and authority, but action by Congress upon the particu- lar subject is deemed an assertion of the federal power, a declaration of the policy that the subject shall be under federal and not state regulation, and that, therefore, the power shall no longer rest in the State to exercise that authority which by the Constitution of the United States was surrendered to the Federal Government when and if Congress deemed its exercise advisable. In a recent decision of the court of civil appeals, State of Texas, the court unanimously stated this doctrine as follows : SENATE JUDICIARY COMMITTEE REPORT 371 It is well settled that the power of Congress to regulate interstate commerce under the provisions of the Constitution before mentioned is plenary and includes the power to prescribe the qualifications, duties, and liabilities of employes of railway companies engaged in interstate commerce, and any legislation by Congress on such subject supersedes any state law upon the same subject. (Railway Co. v. Alabama, 128 U. S. 99; Howard v. Railway Co., 207 U. S. 463.) The constitutional right of Congress to legislate upon this subject having been exercised by that body, the right of the State to invade this field of legislation ceased, or, at all events, no act of a state legis- lature in conflict with the act of Congress upon the same subject can be held valid. The supreme courts of Missouri and Wisconsin, in pass- ing upon the validity of statutes of said States similar to the act we are considering, hold such statutes void upon the groimd of conflict with the act of Congress before mentioned. (State v. Mo. Pac. Ry. Co., Ill S. W. 500; State v. C. M. & St. P. Ry. Co., 117 N. W. 686.) Judge Cooley, in his work on Constitutional Limitations, seventh edition, 856, said: It is not doubted that Congress has the power to go beyond the general regulation of commerce which it is accustomed to establish, and to descend to the most minute directions, if it shall be deemed advisable; and that to whatever extent ground shall be covered by these directions, the exercise of state power is excluded. It is therefore undoubtedly the law that congressional action upon the liability of carriers engaged in interstate commerce, for injuries to their employes, supersedes all state legislation upon the same subject, and renders them, as long as the Federal law remains in operation, of no avail as providing a legal remedy. Many of the States provide by statute for the survival of any action which the deceased may have had for the injury to his estate, and for any expenditures during his lifetime resulting from the injury. In the phraseology' of the existing Employers' Liability Act — that is, the Act of April 22, 1908 — the expression used is, as to the question now under consideration : Shall be liable in damages * * * in case of death of such employe, to his or her personal representative for the benefit of the 372 APPENDIX surviving widow or husband and children of such employe; and if none, then of such employe's parents; and if none, then of the next of kin dependent upon such employe, for such injury or death result- ing in whole or in part from the negligence of any of its officers, agents, employes, * * *. " In the case of Fulgam v. Midland Valley R. R. Company, hereinbefore cited, the court said: In the opinion of the court, right of action given to the injured employe by the act of April 22, 1908, does not survive to his personal representative in the event of his death, but, at common law, perishes with the injured person. In the case of Walsh, admx., v. New York, New Haven and Hartford Railroad Company, Circuit Judge Lowell, who delivered the opinion of the court, said in a case arising under the Employers ' Liability Act of April 22, 1908, after quoting the case of Fulgam v. Midland Valley R. R. Co. (167 Fed. 660) : The defendant has further demurred to counts one and four, con- tending that the employe's cause of action to recover for his con- scious suffering did not survive to his administratrix, although the existence of some of the statutory relatives was alleged. As the cause of action is given by a federal statute, this court can not have recourse to a state statute in order to determine whether the cause of action survives or not. (Schreiber v. Sharpless, 110 U. S. 76, 80; B. & O. E. R. V. Joy, 173 U. S. 226, 230; U. S. v. DeGoer, 38 Fed. 80; U. S. V. Riley, 104 Fed. 275.) Revised Statutes, section 955, pro- vides that "When either of the parties, whether plaintiff or peti- tioner, or defendant, in any suit in any court of the United States, dies before final judgment, the executor or administrator of such de- ceased party may, in case the cause of action survives by law, prose- cute or defend any such suit to final judgment." This section does not itself provide what causes of action shall survive, but in the absence of other controlling statute leaves the matter to the com- mon law. In the case at bar, therefore, the state statutes are inap- plicable. There is no general federal statute, and the particular statute in question, the act of 1908, says nothing about survival. Thus remitted to the common law, at which survival is out of the question, we must here hold that the cause of action did not survive and so that counts one and four are demurrable. (Fulgam v. Mid- land Valley Co., 167 Fed. 660.) The court is justified in saying that SENATE JUDICIAEY COMMITTEE REPORT 373 this result has been reached with reluctance. The maxim "Actio personalis moritur cum persona" has not always commended itself. (Pollock on Torts, Webb's ed., p. 71.) The survival of the cause of action in this case is allowed by the statutes of many States. Thsit one who has suffered in body and in purse by the fault of another, and so has a cause of action against the wrongdoer, should, as to his own estate, be deprived of this remedy by the delays of the law, or without such delay, by his death, before or after action brought, whether connected or unconnected with his first injury, seems to me, as to Sir Frederick Pollock, a barbarous rule. The intent or the over- sight of the legislature has established the rule in this case. The language of the statute should be made clear so that the uncertainty and obscurity suggested by Judge Lowell would be removed. So important a statute should be made so certain in its terms that the intent of Congress may be made manifest and clear. It certainly should be as broad, as comprehensive, and as inclusive in its terms as any of the similar remedial statutes existing in any of the States, which are suspended in their operation by force of the Federal legislation upon the subject. APPENDIX G FEDERAL LOCOMOTIVE ASH PAN ACT An act to promote the safety of employes on railroads. Section 1. On and after the first day of January, nine- teen hundred and ten, it shall be unlawful for any common carrier engaged in interstate or foreign commerce by rail- road to use any locomotive in moving interstate or foreign traffic, not equipped with an ash pan, which can be dumped or emptied and cleaned without the necessity of any employe going under such locomotive. Sec. 2. On and after the first day of January, nineteen hundred and ten, it shall be unlawful for any common carrier by railroad in any Territory of the United States or of the District of Columbia to use any locomotive not equipped with an ash pan, which can be dumped or emptied and cleaned without the necessity of any employe going under such locomotive. Sec. 3. Any such common carrier using any locomotive in violation of any of the provisions of this act shall be liable to a penalty of two hundred dollars for each and every such violation, to be recovered in a suit or suits to be brought by the United States district attorney in the district court of the United States having jurisdiction in the locality where such violation shall have been committed ; and it shall be the duty of such district attorney to bring such suits upon duly verified information being lodged with him of such violation having occurred ; and it shall also be the duty of the Interstate Commerce Commission to lodge with the proper district attorneys information of any such violations as may come to its knowledge. 374 ASH PAN ACT 375 Sec. 4. It stall be the duty of the Interstate Commerce Commission to enforce the provisions of this act, and all powers heretofore granted to said Commission are hereby- extended to it for the purpose of the enforcement of this act. Sec. 5. The term "common carrier" as used in this act shall include the receiver or receivers or other persons or corporations charged with the duty of the management and operation of the business of a common carrier. Sec. 6. Nothing in this act contained shall apply to any locomotive upon which, by reason of the use of oil, electric- ity, or other such agency, an ash pan is not necessary. APPENDIX H FEDERAL HOURS OF SERVICE ACT An act to promote the safety of employes and traveleus upon railroads by limiting the hours of service of em- ployes thereon. Section 1. The provisions of this act shall apply to any common carrier or carriers, their officers, agents, and em- ployes, engaged in the transportation of passengers or property by railroad in the District of Columbia or any Ten'itory of the United States, or from one State or Terri- tory of the United States or the District of Columbia to any other State or Territory of the United States or the District of Columbia, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States. The term ''railroad" as used in this act shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any common carrier operating a railroad, whether owned and operated under a contract, agreement, or lease; and the term ''employes" as used in this act shall be held to mean persons actually engaged in or connected with the movement of any train. Sec. 2. It shall be unlawful for any common carrier, its officers or agents, sub.ject to this act to require or permit any employe subject to this act to be or remain on duty for a longer period than sixteen consecutive hours, and when- ever any such employe of such common carrier shall have been continuously on duty for sixteen hours he shall be relieved and not required or permitted again to go on duty 376 HOURS OF SERVICE ACT 877 until he has had at least ten consecutive hours off duty ; and no such employe who has been on duty sixteen hours in the aggregate in any twenty-four hour period shall be required or permitted to continue or again go on duty without having had at least eight consecutive hours off duty; Provided, That no operator, train dispatcher, or other employe who by the use of the telegraph or telephone dispatches, reports, transmits, receives, or delivers orders pertaining to or affect- ing train movements shall be required or permitted to be or remain on duty for a longer period than nine hours in any twenty-four-hour period in all towers, offices, places, and stations continuously operated night and day, nor for a longer period than thirteen hours in all towers, offices, places, and stations operated only during the daytime, except in case of emergency, when the employes named in this proviso may be permitted to be and remain on duty for four additional hours in a twenty-four-hour period on not exceeding three days in any week: Provided further, The Interstate Commerce Commission may after full hearing in a particular case and for good cause shown extend the period within which a common carrier shall comply with the provisions of this proviso as to such case. Sec, 3. Any such common carrier, or any officer or agent thereof, requiring or permitting any employe to go, be, or remain on duty in violation of the second section hereof, shall be liable to a penalty of not to exceed five hundred dollars for each and every violation, to be re- covered in a suit or suits to be brought by the United States district attorney in the district court of the United States having jurisdiction in the locality where such violation shall have been committed; and it shall be the duty of such dis- trict attorney to bring such suits upon satisfactory informa- tion being lodged with him ; but no such suit shall be brought after the expiration of one year from the date of such violation ; and it shall also be the duty of the Interstate Commerce Commission to lodge with the proper district attorneys information of any such violations as may come to its knowledge. In all prosecutions under this act the 378 APPENDIX common carrier shall be deemed to have had knowledge of all acts of all its officers and agents: Provided, That the provisions of this act shall not apply in any case of casualty or unavoidable accident or the act of God; nor where the delay was the result of a cause not known to the carrier or its officer or agent in charge of such employe at the time said employe left a terminal, and which could not have been foreseen : Provided further, That the provisions of this act shall not apply to the crews of wrecking or relief trains. Sec. 4. It shall be the duty of the Interstate Commerce Commission to execute and enforce the provisions of this act, and all powers granted to the Interstate Commerce Commission are hereby extended to it in the execution of this act. APPENDIX I FEDERAL BOILER INSPECTION ACT i An act to promote the safety of employes and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their locomotives with safe and suitable boilers and appurtenances thereto. Section 1. The provisions of this act shall apply to any common carrier or carriers, their officers, agents, and employes, engaged in the transportation of passengers or property by railroad in the District of Columbia, or in any Territory of the United States, or from one State or Terri- tory of the United States or the District of Columbia to any other State or Territory of the United States or the District of Columbia, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States. The term "railroad" as used in this act shall include all the roads in use by any common carrier operating a railroad, whether owned or operated under a contract, agreement, or lease, and the term "employes" as used in this act shall be held to mean persons actually engaged in or connected with the movement of any train. Sec. 2. From and after the first day of July, nineteen hundred and eleven, it shall be unlawful for any common carrier, its officers or agents, subject to this act to use any locomotive engine propelled by steam power in moving interstate or foreign traffic unless the boiler of said loco- motive and appurtenances thereof are in proper condition and safe to operate in the service to which the same is put, that the same may be employed in the active service of such 1 This Act was amended by an Act approved March 4, 1915, see p. 450, post. 379 380 APPENDIX carrier in moving traffic without unnecessary peril to life or limb, and all boilers shall be inspected from time to time in accordance with the provisions of this act, said be able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for. Sec. 3. There shall be appointed by the President, by and with the advice and consent of the Senate, a chief inspector and two assistant chief inspectors of locomotive boilers, who shall have general superintendence of the inspectors hereinafter provided for, direct them in the duties hereby imposed upon them, and see that the require- ments of this act and the rules, regulations, and instructions made or given hereunder are observed by common carriers subject thereto. The said chief inspector and his two assistants shall be selected with reference to their practical knowledge of the construction and repairing of boilers, and to their fitness and ability to systematize and carry into effect the provisions hereof relating to the inspection and maintenance of locomotive boilers. Tlie chief inspector shall receive a salary of four thousand dollars per year and the assistant chief inspectors shall each receive a salary of three thousand dollars per year; and each of the three shall be paid his traveling expenses incurred in the performance of his duties. The office of the chief inspector shall be in Washington, District of Columbia, and the Interstate Com- merce Commission shall provide such stenographic and clerical help as the business of the offices of the chief inspector and his said assistants may require. Sec. 4. Immediately after his appointment and qualifi- cation the chief inspector shall divide the territory compris- ing the several States, the Territories of New Mexico and Arizona, and the District of Columbia into fifty locomotive boiler-inspection districts, so arranged that the service of the inspector appointed for each district shall be most effective, and so that the work required of each inspector shaU be substantially the same. Thereupon there shall be appointed hy the Interstate Commerce Commission fifty inspectors of locomotive boilers. Said inspectors shall be BOILER INSPECTION ACT 381 in the classified service and shall be appointed after com- P'^titive examination according to the law and the rules of tl e Civil Service Commission governing the classified sc rvice. The chief inspector shall assign one inspector so a] 'pointed to each of the districts hereinafter named. Each inspector shall receive a salary of one thousand eight hun- dred dollars per year and his traveling expenses while er gaged in the performance of his duty. He shall receive in addition thereto an annual allowance for of^ce rent, stationer}^, and clerical assistance, to be fixed by the Inter- st/ite Commerce Commission, but not to exceed in the case of any district inspector six hundred dollars per year. In order to obt-ain the most competent inspectors possible, it shall be the duty of the chief inspector to prepare a list of questions to be propounded to applicants with respect to construction, repair, operation, testing, and inspection of locomotive boilers, and their practical experience in such work, which list, being approved by the Interstate Com- merce Commission, shall be used by the Civil Service Commission as a part of its examination. No person inter- ested, either directly or indirectly, in any patented article required to be used on any locomotive under supervision or who is intemperate in his habits shall be eligible to hold the office of either chief inspector or assistant or district inspector. Sec. 5. Each carrier subject to this act shall file its rules and instinictions for the inspection of locomotive boilers with the chief inspector within three months after the approval of this act, and after hearing and approval by the Interstate Commerce Commission, such rules and instructions, with such modifications as the commission requires, shall become obligatory upon such carrier: Provided, however, That if any carrier subject to this act sliall fail to file its rules and instimctions the chief inspector shall prepare rules and instructions not inconsistent herewith for the inspection of locomotive boilers, to be observed by such carrier: which rules and instructions, being approved by the Interstate Commerce Commission, and a copy thereof being served 382 APPENDIX upon the president, general manager, or general superin- tendent of such carrier, shall be obligatory, and a violation thereof punished as hereinafter provided: Provided also, That such common carrier may from time to time change the rules and regulations herein provided for, but such change shall not take effect and the new rules and regula.- tions be in force until the same shall have been filed with and approved by the Interstate Commerce Commission. The chief inspector shall also make all needful rules, regu- lations, and instructions not inconsistent herewith for the conduct of his office and for the government of the district inspectors: Provided, however, That all such rules and instructions shall be approved by the Interstate Commerce Commission before they take effect. Sec. 6. It shall be the duty of each inspector to become familiar, so far as practicable, with the condition of each locomotive boiler ordinarily housed or repaired in his dis- trict, and if any locomotive is ordinarily housed or repaired in two or more districts, then the chief inspector or an assistant shall make such division between inspectors as will avoid the necessity for duplication of work. Each inspect- or shall make such personal inspection of the locomotive boilers under his care from time to time as may be necessary to fully carry out the provisions of this act, and as may be consistent with his other duties, but he shall not be required to make such inspections at stated times or at regular inter- vals. His first duty shall be to see that the carriers make inspections in accordance with the rules and regulations established or approved by the Interstate Commerce Com- mission, and that carriers repair the defects which such inspections disclose before the boiler or boilers or appur- tenances pertaining thereto are again put in service. To this end each carrier subject to this act shall file with the inspector in charge, under the oath of the proper oflScer or employe, a duplicate of the report of each inspection re- quired by such rules and regulations, and shall also file with such inspector, under the oath of the proper officer or employe, a report showing the repair of the defects disclosed BOIL.ER INSPECTION ACT 383 by the inspection. The rules and regulations hereinbefore provided for shall perscribe the time at which such reports shall be made. Whenever any district inspector shall, in the performance of his duty, find any locomotive boiler or apparatus pertaining thereto not conforming to the require- ments of the law or the rules and regulations established and approved as hereinbefore stated, he shall notify the carrier in writing that the locomotive is not in serviceable condition, and thereafter such boiler shall not be used until in serviceable condition: Provided, That a carrier, when notified by an inspector in writing that a locomotive boiler is not in serviceable condition, because of defects set out and described in said notice, may within five days after receiving said notice, appeal to the chief inspector by tele- graph or by letter to have said boiler reexamined, and upon receipt of the appeal from the inspector 's decision, the chief inspector shall assign one of the assistant chief inspectors or any district inspector other than the one from whose decision the appeal is taken to reexamine and inspect said boiler within fifteen days from date of notice. If upon such reexamination the boiler is found in serviceable condi- tion, the chief inspector shall immediately notify the carrier in writing, whereupon such boiler may be put into service without further delay; but if the reexamination of said boiler sustains the decision of the district inspector, the chief inspector shall at once notify the carrier owning or operating such locomotive that the appeal from the decision of the inspector is dismissed, and upon the receipt of such notice the carrier may, within thirty days, appeal to the Interstate Commerce Commission, and upon such appeal, and after hearing, said Commission shall have power to revise, modify, or set aside such action of the chief inspector and declare that said locomotive is in serviceable condition and authorize the same to be operated: Provided further, That pending either appeal the requirements of the inspector shall be effective. Sec. 7. The chief inspector shall make an annual report to the Interstate Commerce Commission of the work done 384 APPENDIX during the year, and shall make such recommendations for the betterment of the service as he may desire. Sec. 8. In the case of accident resulting from failure from any cause of a locomotive boiler or its appurtenances, resulting in serious injury or death to one or more persons, a statement forthwith must be made in writing of the fact of such accident, by the carrier owning or operating said locomotive, to the chief inspector. "Whereupon the facts concerning such accident shall be investigated by the chief inspector or one of his assistants, or such inspector as the chief inspector may designate for that purpose. And where the locomotive is disabled to the extent that it can not be run by its own steam, the part or parts affected by the said accident shall be preserved by said carrier intact, so far as possible, without hindrance or interference to traffic until after said inspection. The chief inspector or an assistant ar the designated inspector making the investigation shall examine or cause to be examined thoroughly the boiler or part affected, making full and detailed report of the cause of the accident to the chief inspector. The Interstate Commerce Commission maj^ at any time call upon the chief inspector for a report of any accident embraced in this section, and upon the receipt of said report, if it deems it to the public interest, make reports of such investigations, stating the cause of accident, together with such recommendations as it deems proper. Such reports shall be made public in such manner as the commission deems proper. Neither said report nor any report of said investigation nor any part thereof shall be admitted as evidence or used for any purpose in any suit or action for damages growing out of any matter mentioned in said report or investigation. Sec. 9. Any common carrier violating this act or any rule or regulation made under its provisions or any lawful order of any inspector shall be liable to a penalty of one hundred dollars for each and every such violation, to be recovered in a suit or suits to be brought by the United States attorney in the district court of the United States boHjER inspection act 385 having jurisdiction in the locality where such violation shall have been committed; and it shall be the duty of such attorneys, subject to the direction of the Attorney General, to bring such suits upon duly verified information being lodged with them, respectively, of such violations having occurred; and it shall be the duty of the chief inspector of locomotive boilers to give information to the proper United States attorney of all violations of this act coming to his knowledge. Sec. 10. The total amounts directly appropriated to carry out the provisions of this act shall not exceed for any one fiscal year the sum of three hundred thousand dollars. iiooerts XJablUties— 25 APPENDIX J FEDERAL SAFETY APPLIANCE ACTS An act to promote the safety of employes and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving-wheel brakes, and for other purposes. Section 1. From and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any common carrier engaged in interstate commerce by rail- road to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving-wheel brake and appliances for operating the train brake system, or to run any train in such traffic after said date that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakeman to use the common hand brake for that purpose. Sec. 2. On and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going be- tween the ends of the cars. Sec. 3. When any person, firm, company, or corporation engaged in interstate commerce by railroad shall have equipped a sufficient number of its cars so as to comply with the provisions of section one of this act, it may law- fully refuse to receive from connecting lines of road or 386 SAFETY APPLIANCE ACTS 387 shippers any cars not equipped sufficiently, in accordance with the first section of this act, with such power or train brakes as will work and readily interchange with the brakes in use on its own cars, as required by this act. Sec. 4. From and after the first day of July, eighteen hundred and ninety-five, until otherwise ordered by the Interstate Commerce Commission, it shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grab irons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars. Sec. 5. Within ninety days from the passage of this act the American Railway Association is authorized hereby to designate to the Interstate Commerce Commission the standard height of draw bars for freight cars, measured perpendicular from the level of the tops of the rails to the centers of the draw bars, for each of the several gauges of railroads in use in the United States, and shall fix a maxi- mum variation from such standard height to be allowed between the draw bars of empty and loaded cars. Upon their determination being certified to the Interstate Com- merce Commission, said Commission shall at once give notice of the standard fixed upon to all common carriers, owners, or lessees engaged in interstate commerce in the United States by such means as the Commission may deem proper. But should said association fail to determine a standard as above provided, it shall be the duty of the Interstate Commerce Commission to do so, before July first, eighteen hundred and ninety-four, and immediately to give notice thereof as aforesaid. And after July first, eighteen hundred and ninety-five, no cars either loaded or unloaded, shall be used in interstate traffic which do not comply with the standard above provided for. Sec. 6. (As amended by the act of April 1, 1896.) Any such common carrier using any locomotive engine, running any train, or hauling or permitting to be hauled or used on its line any car in violation of any of the provisions of this act, shall be liable to a penalty of 388 APPENDK one hundred dollars for each and every such violation, to be recovered in a suit or suits to be brought by the United States district attorney in the district court of the United States having jurisdiction in the locality where such viola- tion shall have been committed ; and it shall be the duty of such district attorney to bring such suits upon duly verified information being lodged with him of such violation having occurred; and it shall also be the duty of the Interstate Commerce Commission to lodge with the proper district attorneys information of any such violations as may come to its knowledge: Provided, That nothing in this act con- tained shall apply to trains composed of four-wheeled cars or to trains composed of eight-wheel standard logging cars where the height of such car from top of rail to center of coupling does not exceed twenty-five inches, or to locomo- tives used in hauling such trains when such cars or loco- motives are exclusively used for the transportation of logs. Sec. 7. The Interstate Commerce Commission may from time to time upon full hearing and for good cause extend the period within which any common carrier shall comply with the provisions of this act. Sec. 8. Any employe of any such common carrier who may be injured by any locomotive, car, or train in use contrary to the provisions of this act shall not be deemed thereby to have assumed the risk thereby occasioned, al- though continuing in the employment of such carrier after the unlawful use of such locomotive, car, or train had been brought to his knowledge. AMENDMENT OF 1903 TO FEDERAL SAFETY APPLIANCE ACT OF 1893 An act to amend an act entitled, "An act to promote the safety of employes and travelers upon railroads by com- pelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continu- ous brakes and their locomotives with driving-wheel brakes, and for other purposes, ' ' approved March second, SAFETY APPLIANCE ACTS 389 eighteen hundred and ninety-three, and amended April first, eighteen hundred and ninety-six. Section 1. The provisions and requirements of the act entitled *'An act to promote the safety of employes and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their loco- motives with driving-wheel brakes, and for other purposes, ' ' approved March second, eighteen hundred and ninety-three, and amended April first, eighteen hundred and ninety-six [see pp. 2401, 2402], shall be held to apply to common carriers by railroads in the Territories and the District of Columbia and shall apply in all cases, whether or not the couplers brought together are of the same kind, make, or type ; and the provisions and requirements hereof and of said acts relating to train brakes, automatic couplers, grab irons, and the height of drawbars shall be held to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce, and in the Territories and the District of Columbia, and to all other locomotives, tenders, cars, and similar vehicles used in connection therewith, excepting those trains, ears, and locomotives exempted by the provisions of section six of said act of March second, eighteen hundred and ninety- three, as amended by the act of April first, eighteen hundred and ninety-six, or which are used upon street railways. Sec. 2. Whenever, as provided in said act, any train is operated with power or train brakes, not less than fifty per centum of the cars in such train shall have their brakes used and operated by the engineer of the locomotive draw- ing such train ; and all power-braked cars in such train which are associated together with said fifty per centum shall have their brakes so used and operated ; and, to more fuUy carry into effect the objects of said act, the Interstate Commerce Commission may, from time to time, after full hearing, increase the minimum percentage of cars in any train required to be operated with power ar train brakes 390 APPENDIX which must have their brakes used and operated as afore- said; and failure to comply with any such requirements of the said Interstate Commerce Commission shall be subject to the like penalty as failure to comply with any require- ment of this section. Sec. 3. The provisions of tliis act shall not take effect until September first, nineteen hundred and three. Nothing in this act shall be held or construed to relieve any common carrier, the Interstate Commerce Commission, or any United States district attorney from any of the provisions, powers, duties, liabilities, or requirements of said act of March second, eighteen hundred and ninety-three, as amended by the act of April first, eighteen hundred and ninety-six ; and all of the provisions, powers, duties, requirements and liabilities of said act of March second, eighteen hundred and ninety-three, as amended by the act of April first, eighteen hundred and ninety-six, shall, except as specifically amended by this act, apply to this act. Approved March 2nd, 1903. 32 Stat, at L. 943, c. 976. AMENDMENT OF 1910 TO FEDERAL SAFETY APPLIANCE ACT OF 1893 An Act to supplement "An act to promote the safety of employes and travelers upon railroads by compelling com- mon carriers engaged in interstate commerce to equip their ears with automatic couplers and continuous brakes and their locomotives with driving wheel brakes and for other purposes, ' ' and other safety appliance acts, and for other purposes. Be it enacted hy the Senate and House of Representatives of the United States of America in Congress assembled, That the provisions of this act shall apply to every common carrier and every vehicle subject to the act of March second, eighteen hundred and ninety-tliree, as amended April first, eighteen hundred and ninety-six, and March second, nine- SAFETY APPLIANCE ACTS 391 teen hundred and three, commonly known as the "Safety Appliance Acts. ' ' Sec. 2. That on and after July first, nineteen hundred and eleven, it shall be unlawful for any common carrier subject to the provisions of this act to haul, or permit to be hauled or used on its line any car subject to the provi- sions of this act not equipped with appliances provided for in this act, to-wit : All cars must be equipped with secure sill steps and efficient hand brakes ; all cars requiring secure ladders and secure running boards shall be equipped with such ladders and running boards, and all cars having ladders shall also be equipped with secure hand holds or grab irons on their roofs at the tops of such ladders : Provided, That in the loading and hauling of long commodities, requiring more than one car, the hand brakes may be omitted on all save one of the cars while they are thus combined for such purpose. Sec. 3. That within six months from the passage of this act the Interstate Commerce Commission, after hearing, shall designate the number, dimensions, location, and man- ner of application of the appliances provided for by section two of this act and section four of the act of March second, eighteen hundred and ninety-three, and shall give notice of such designation to all common carriers subject to the provisions of this act by such means as the commission may deem proper, and thereafter said number, location, dimen- sions, and manner of application as designated by said commission shall remain as the standards of equipment to be used on all cars subject to the provisions of this act, unless changed by an order of said Interstate Commerce Commission, to be made after full hearing and for good cause shown ; and failure to comply with any such require- ment of the Interstate Commerce Commission, to be made after full hearing, and for good cause shown ; and failure to comply with any such requirement of the Interstate Commerce Commission shall be subject to a like penalty as failure to comply with any requirement of this act: Provided, That the Interstate Commerce Commission may, 392 APPENDIX upon full hearing and for good cause, extend the period within which any common carrier shall comply with the provisions of this section with respect to the equipment of cars actually in service upon the date of the passage of this act. Said commission is hereby given authority, after hear- ing, to modify or change, and to prescribe the standard height of drawbars and to fix the time within which such modification or change shall become effective and obliga- tory, and prior to the time so fixed it shall be unlawful to use any car or vehicle in interstate or foreign traffic which does not comply with the standard now fixed or the standard so prescribed, and after the time so fixed it shall be unlawful to use any car or vehicle in interstate or foreign traffic which does not comply with the standard so prescribed by the commission. Sec. 4. That any common carrier subject to this act using, hauling, or permitting to be used or hauled on its line, any car subject to the requirements of this act not equipped as provided in this act, shall be liable to a penalty of one hundred dollars for each and every such violation, to be recovered as provided in section six of the act of March second, eighteen hundred and ninety-three, as amended April first, eighteen hundred and ninety-six: Provided, That where any car shall have been properly equipped, as provided in this act and the other acts men- tioned herein, and such equipment shall have become de- fective or insecure while such car was being used by such carrier upon its line of railroad, such car may be hauled from the place where such equipment was first discovered to be defective or insecure to the nearest available point where such car can be repaired, without liability for the penalties imposed by section four of this act or section six of the act of March second, eighteen hundred and ninety- three, as amended by the act of April first, eighteen hundred and ninety-six, if such movement is necessary to make such repairs and such repairs can not be made except at such repair point ; and such movement or hauling of such car shall be at the sole risk of the carrier, and nothing in this SAPETY APPLIANCE ACTS 393 section shall be constmed to relieve such carrier from liability in any remedial action for the death or injury of any railroad employe caused to such employe by reason of or in connection with the movement or hauling of such car with equipment which is defective or insecure or which is not maintained in accordance with the requirements of this act and the other acts herein referred to; and nothing in this proviso shall be construed to permit the hauling of defective cars by means of chains instead of drawbars, in revenue trains or in association with other cars that are commercially used, unless such defective cars contain live stock or "perishable" freight. Sec. 5. That except that, within the limits specified in the preceding section of this act, the movement of a car with defective or insecure equipment may be made without incurring the penalty provided by the statutes, but shall in all other respects be unlawful, nothing in this act shall be held or construed to relieve any common carrier, the Inter- state Commerce Commission, or any United States attorney from any of the provisions, powers, duties, liabilities, or requirements of said act of March second, eighteen hundred and ninety-three, as amended by the acts of April first, eighteen hundred and ninety-six, and March second, nine- teen hundred and three ; and, except as aforesaid, all of the provisions, powers, duties, requirements and liabilities of said act of March second, eighteen hundred and ninety- three, as amended by the acts of April first, eighteen hundred and ninety-six, and March second, nineteen hundred and three, shall apply to this act. Sec. 6. That it shall be the duty of the Interstate Com- merce Commission to enforce the provisions of this act, and all powers heretofore granted to said commission are hereby extended to it for the purpose of the enforcement of this act. Approved, April 14, 1910. APPENDIX K ORDER OF THE INTERSTATE COIJOIERCE COM- MISSION JUNE 6, 1910 IN EE MINIMUM PERCENTAGE QF POWER BRAKES The Commission having mider consideration the question of requiring an increase in the minimum percentage of power brakes to be used and operated on trains and railroads engaged in interstate commerce, as provided by section two of the act of March 2, 1903, and it appearing to the Com- mission, after full hearing had on May 5, 1909, due notice of which was given all common carriers, owners and lessees engaged in interstate commerce by railroad in the United States, and at which time aU interested parties were given an opportunity to be heard and submit their views, that to secure more fully the objects of the act to promote the safety of employes and travelers on railroads, the minimum percentage of power-brake cars to be used in trains, as established by its order of November 15, 1905, should be further increased. It is ordered, That on and after September 1, 1910, on all railroads used in interstate commerce, whenever, as required by the Safety Appliance Act as amended March 2, 1903, any train is operated with power or train brakes, not less than eighty-five per cent of the cars of such train shall have their brakes used and operated by the engineer of the loco- motive drawing such train, and aU power-brake cars in every such train which are associated together with the eighty-five per cent shall have their brakes so used and operated. 394 APPENDIX L ORDER OF THE INTERSTATE COMMERCE COM- MISSION, OCTOBER 10, 1910 IN RE STANDARD HEIGHT OP DRAWBARS Whereas, by the third section of an act of Congress approved April 14, 1910, entitled "An act to supplement 'An act to promote the safety of employes and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving-wheel brakes and for other purposes,' and other safety appliance acts, and for other purposes," it is pro- vided, among other things, that the Interstate Commerce Commission is hereby given authority, after hearing, to modify or change and to prescribe the standard height of drawbars and to fix the time within which such modification or change shall become effective and obligatory, and Whereas, a hearing in the matter of any modification or change in the standard height of drawbars was held before the Interstate Commerce Commission at its office in Wash- ington, D. C, on June 7, 1910, Now, therefore, in pursuance of and in accordance with the provisions of said section 3 of said act. It is ordered, That (except on cars specified in the proviso in section 6 of the Safety Appliance Act of March 2, 1893, as the same was amended April 1, 1896) the stand- ard height of drawbars heretofore designated in compliance with law is hereby modified and changed in the manner hereinafter prescribed — to-wit: The maximum height of drawbars for freight cars measured perpendicularly from ' 395 396 APPENDIX the level of the tops of rails to the centers of drawbars for standard-gauge railroads in the United States subject to said act shall be 341/2 inches, and the minimum height of drawbars for freight cars on such standard-gauge railroads measured in the same manner shall be 31 1^ inches, and on narrow-gauge railroads in the United States subject to said act the maximum height of drawbars for freight cars meas- ured from the level of the tops of rails to the centers of drawbars shall be 26 inches, and the minimum height of drawbars for freight cars on such narrow-gauge railroads measured in the same manner shall be 23 inches, and on 2-foot-gauge railroads in the United States subject to said act the maximum height of drawbars for freight cars measured from the level of the tops of rails to the centers of drawbars shall be 171/2 inches, and the minimum height of drawbars for freight cars on such 2-foot-gauge railroads measured in the same manner shall be 141/0 inches. And it is further ordered, That such modification or change shall become effective and obligatory December 31, 1910. APPENDIX M ORDER OF THE INTERSTATE COMMERCE COM- MISSION, MARCH 13, 1911 IN RE DESIGNATING THE NUMBER, DIMENSIONS, LOCATION, AND MANNER OP APPLICATION OP CERTAIN SAFETY APPLIANCES Whereas by the third section of an act of Congress ap- proved April 14, 1910, entitled "An act to supplement 'An act to promote the safety of employes and travelers upon railroads by compelling common carriers engaged in inter- state commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving- wheel brakes, and for other purposes,' and other safety appliance acts, and for other purposes," it is provided, among other things, "That within six months from the passage of this act the Interstate Commerce Commission, after hearing, shall designate the number, dimensions, location, and manner of application of the appliances pro- vided for by section two of this act and section four of the act of March second, eighteen hundred and ninety-three, and shaU give notice of such designation to all common carriers subject to the provisions of this act by such means as the Commission may deem proper, and thereafter said number, location, dimensions, and manner of application as designated by said Commission shaU remain as the standards of equipment to be used on all cars subject to the provisions of this act, unless changed by an order of said Interstate Commerce Commission, to be made after fuU hearing and for good cause shown ; and failure to comply with any such requirement of the Interstate Commerce Commission shall be subject to a like penalty as failure to comply with any 397 398 APPENDIX requirement of this act: Provided, That the Interstate Commerce Commission may, upon full hearing and for good cause, extend the period within which any common carrier shall comply with the provisions of this section with respect to the equipment of cars actually in service upon the date of passage of this act ; ' ' and Whereas hearings in the matter of the number, dimen- sions, location, and manner of application of the appliances, as provided in said section of said act, were held before the Interstate Commerce Commission at its office in Wash- ington, D. C, on September 29th and 30th and October 7th, 1910, respectively; and February 27th, 1911; Now, therefore, in pursuance of and in accordance with the provisions of said section three of said act, and super- seding the Commission 's order of October 13, 1910, relative thereto It is ordered, That the number, dimensions, location, and manner of application of the appliances provided for by section two of the act of April 14, 1910, and section four of the act of March 2, 1893, shall be as follows: BOX AND OTHER HOUSE CARS HAND-BRAKES Number : Each box or other house car shall be equipped with an efficient hand-brake which shall operate in harmony with the power-brake thereon. The hand-brake may be of any efficient design, but must provide the same degree of safety as the design shown on Plate A. Dimensions: The brake-shaft shall be not less than one and one-fourth (1^) inches in diameter, of wrought iron or steel without weld. The brake-wheel may be flat or dished, not less than fifteen (15), preferably sixteen (16), inches in diameter, of malle- able iron, wrought iron or steel. Location : The hand-brake shall be so located that it can be safely operated while car is in motion. ORDER RELATIVE TO SAFETY APPLIANCES 399 The brake-shaft shall be located on end of car, to the left of and not less than seventeen (17) nor more than twenty- two (22) inches from center. Manner of Application: There shall be not less than four (4) inches clearance around rim of brake-wheel. Outside edge of brake-wheel shall be not less than four (4) inches from a vertical plane parallel with end of car and passing through the inside face of knuckle when closed with coupler-horn against the buffer-block or end-sill. Top brake-shaft support shall be fastened with not less than one-half (i/o) inch bolts or rivets. (See Plate A.) A brake-shaft step shall support the lower end of brake- shaft. A brake-shaft step which will permit the brake- chain to drop under the brake-shaft shall not be used. U-shaped form of brake-shaft step is preferred. (See Plate A.) Brake-shaft shall be arranged with a square fit at its upper end to secure the hand-brake wheel; said square fit shall be not less than seven-eighths (Yg) of an inch square. Square-fit taper; nominally two (2) in twelve (12) inches. (See Plate A.) Brake-chain shall be of not less than three-eighths (%), preferably seven-sixteenths (Viq), inch wrought iron or steel, with a link on the brake-rod end of not less than seven- sixteenths (Viq), preferably one-half (1/2), inch wrought iron or steel, and shall be secured to brake-shaft drum by not less than one-half (%) inch hexagon or square-headed bolt. Nut on said bolt shall be secured by riveting end of bolt over nut. (See Plate A.) Lower end of brake-shaft shall be provided with a trun- nion of not less than three-fourths (%), preferably one (1), inch in diameter extending through brake-shaft step and held in operating position by a suitable cotter or ring. (See Plate A.) Brake-shaft drum shall be not less than one and one-half (11/4) inches in diameter. (See Plate A.) Brake ratchet-wheel shall be secured to brake-shaft by a key or square fit ; said square fit shall be not less than one 400 APPENDIX and five-sixteenths (1%6) inches square. When ratchet- wheel with square fit is used provision shall be made to prevent ratchet-wheel from rising on shaft to disengage brake-pawl. (See Plate A.) Brake ratchet-wheel shall be not less than five and one- fourth (51/4), preferably five and one-half (5^/^), inches in diameter and shall have not less than fourteen (14), prefer- ably sixteen (16), teeth. (See Plate A.) If brake ratchet-wheel is more than thirty-six (36) inches from brake-wheel, a brake-shaft support shall be provided to support this extended upper portion of brake-shaft ; said brake-shaft support shall be fastened with not less than one- half (1/^) inch bolts or rivets. The brake-pawl shall be pivoted upon a bolt or rivet not less than five-eighths (%) of an inch in diameter, or upon a trunnion secured by not less than one-half (i^) inch bolt or rivet, and there shall be a rigid metal connection between brake-shaft and pivot of pawl. Brake-wheel shall be held in position on brake-shaft by a nut on a threaded extended end of brake-shaft; said threaded portion shall be not less than three-fourths (%) of an inch in diameter ; said nut shall be secured by riveting over or by the use of lock-nut or suitable cotter. Brake-wheel shall be arranged with a square-fit for brake- shaft in hub of said wheel ; taper of said fit, nominally two (2) in twelve (12) inches. (See Plate A.) BRAKE-STEP If brake-step is used, it shaU be not less than twenty-eight (28) inches in length. Outside edge shall be not less than eight (8) inches from face of car and not less than four (4) inches from a vertical plane parallel with end of car and passing through the inside face of knuckle when closed with coupler-horn against the buffer-block or end-sill. Manner of Application : Brake-step shall be supported by not less than two metal braces having a minimum cross- sectional area three-eighths (%) by one and one-half (1^^) ORDER RELATIVE TO SAFETY APPLIANCES 401 inches or equivalent, which shall be securely fastened to body of car with not less than one-half (I/2) inch bolts or rivets. RUNNING-BOARDS Number: One (1) longitudinal running-board. On outside-metal-roof cars two (2) latitudinal extensions. Dimensions: Longitudinal running-board shall be not less than eighteen (18), preferably twenty (20), inches in width. Latitudinal extensions shall be not less than twenty-four (24) inches in width. Location : P^uU length of car, center of roof. On outside-metal-roof cars there shall be two (2) lati- tudinal extensions from longitudinal running-board to lad- der locations, except on refrigerator ears where such lati- tudinal extensions can not be applied on account of ice hatches. Manner op Application: Running-boards shall be con- tinuous from end to end and not cut or hinged at any point : Provided, That the length and width of running-boards may be made up of a number of pieces securely fastened to saddle-blocks with screws or bolts. The ends of longitudinal running-board shall be not less than six (6) nor more than ten (10) inches from a vertical plane parallel with end of car and passing through the inside face of knuckle when closed with coupler-horn against the buffer-block or end-sill; and if more than four (4) inches from edge of roof of car, shall be securely supported their full width by substantial metal braces. Running-boards shall be made of wood and securely fastened to car, SILL-STEPS Number: Four (4). Dimensions: Minimum cross-sectional area one-half (i/^) by one and one-half (1%) inches, or equivalent, of wrought iron or steel. Roberts Liabilities — 26 402 APPENDIX Minimum length of tread, ten (10), preferably twelve (12), inches. Minimum clear depth, eight (8) inches. Location : One ( 1 ) near each end on each side of car, so that there shall be not more than eighteen (18) inches from end of car to center of tread of sill-step. Outside edge of tread of step shall be not more than four (4) inches inside of face of side of car, preferably flush with side of car. Tread shall be not more than twenty-four (24) , preferably not more than twenty -two (22), inches above the top of rail. Manner of Application : Sill-steps exceeding twenty-one (21) inches in depth shall have an additional tread. Sill-steps shall be securely fastened with not less than one-half (V2) inch bolts with nuts outside (when possible) and riveted over, or with not less than one-half (I/2) inch rivets. LADDERS Number: Four (4). Dimensions: Minimum clear length of tread: Side lad- ders sixteen (16) inches; end ladders fourteen (14) inches. Maximum spacing between ladder-treads, nineteen (19) inches. Top ladder-tread shall be located not less than twelve (12) nor more than eighteen (18) inches from roof at eaves. Spacing of side ladder treads shall be uniform within a limit of two (2) inches from top ladder tread to bottom tread of ladder. Maximum distance from bottom tread of side ladder to top tread of sill-step, twenty-one (21) inches. End ladder treads shall be spaced to coincide with treads of side ladders, a variation of two (2) inches being allowed. Where construction of car wiU not permit the application of a tread of end ladder to coincide with bottom tread of side ladder, the bottom tread of end ladder must coincide with second tread from bottom of side ladder. ORDER RELATIVE TO SAFETY APPLIANCES 403 Hard-wood treads, minimum dimensions one and one-half (11/^) by two (2) inches. Iron or steel treads, minimum diameter five-eighths (%) of an inch. Minimum clearance of treads, two (2), preferably two and one-half (2I/2), inches. Location: One (1) on each side, not more than eight (8) inches from right end of car; one (1) on each end, not more than eight (8) inches from left side of car; measured from inside edge of ladder-stile or clearance of ladder treads to comer of car. ]\Ianner of Application: ]\Ietal ladders without stiles near corners of cars shall have foot guards or upward l>rojections not less than two (2) inches in height near inside end of bottom treads. Stiles of ladders, projecting two (2) or more inches from face of car, will serve as foot-guards. Ladders shall be securely fastened with not less than one- half (1/4) inch bolts with nuts outside (when possible) and riveted over, or with not less than one-half (1/2) inch rivets. Three-eighths (%) inch bolts may be used for wooden treads which are gained into stiles. end-ladder clearance No part of car above end-sills within thirty (30) inches from side of car, except buffer-block, brake-shaft, brake- wheel, brake-step, running-board or uncoupling-lever shall extend to within twelve (12) inches of a vertical plane parallel with end of car and passing through the inside face of knuckle when closed with coupler-horn against the buffer-block or end-sill, and no other part of end of car or fixtures on same above end-sills, other than exceptions herein noted, shall extend beyond the outer face of buffer-block. roof- HANDHOLDS Number: One (1) over each ladder. One (1) right-angle handhold may take the place of two 404 APPENDIX (2) adjacent specified roof-handholds, provided the dimen- sions and locations coincide, and that an extra leg is securely fastened to car at point of angle. Dimensions: Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. Minimum clear length, sixteen (16) inches. Minimum clearance, two (2), preferably two and one-half (21/2), inches. Location: On roof of car: One (1) parallel to treads of each ladder, not less than eight (8) nor more than fifteen (15) inches from edge of roof, except on refrigerator cars where ice hatches prevent, when location may be nearer edge of roof. Manner of Application : Roof -handholds shall be se- curely fastened with not less than one-half (l^) inch bolts with nuts outside (when possible) and riveted over, or with not less than one-half (I/2) inch rivets. side-handholds Number: Four (4). [Tread of side-ladder is a side-handhold.] Dimensions: Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. ]\Iinimum clear length, sixteen (16) inches, preferably twenty- four (24) inches. Minimum clearance, two (2), preferably two and one-half (214), inches. Location: Horizontal: One (1) near each end on each side of car. Side-handholds shall be not less than twenty-four (24) nor more than thirty (30) inches above center line of coupler, except as provided above, where tread of ladder is a handhold. Clearance of outer end of handhold shall be not more than eight (8) inches from end of car. Manner op Application: Side-handholds shall be se- curely fastened with not less than one-half (i/^) inch bolts ORDER RELATIVE TO SAFETY APPLIANCES 405 with nuts outside (when possible) and riveted over, or with not less than one-half (i/^) inch rivets. HORIZONTAL END-HANDHOLDS Number: Eight (8) or more. (Four (4) on each end of car.) [Tread of end-ladder is an end-handhold.] Dimensions: Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. Minimum clear length, sixteen (16) inches, preferably twenty-four (24) inches. A handhold fourteen (14) inches in length may be used where it is impossible to use one sixteen (16) inches in length. Minimum clearance, two (2), preferably two and one-half (21/^), inches. Location : One ( 1 ) near each side on each end of car, not less than twenty-four (24) nor more than thirty (30) inches above center line of coupler, except as provided above, when tread of end-ladder is an end-handhold. Clearance of outer end of handhold shall be not more than eight (8) inches from side of car. One (1) near each side of each end of car on face of end- sill or sheathing over end-sill, projecting outward or down- ward. Clearance of outer end of handhold shall be not more than sixteen (16) inches from side of car. On each end of cars with platform end-sills six (6) or more inches in width, measured from end-post or siding and extending entirely across end of car, there shall be one addi- tional end-handhold not less than twenty-four (24) inches in length, located near center of car, not less than thirty (30) nor more than sixty (60) inches above platform end- siU. Manner of Application : Horizontal end-handholds shall be securely fastened with not less than one-half (I/2) inch bolts with nuts outside (when possible) and riveted over, or with not less than one-half (i/^) inch rivets. 406 APPENDIX VERTICAL END-HANDHOLDS Number: Two (2) on full-width platform end-sill cars, as heretofore described. Dimensions: Minimum diameter five-eighths (%) of an inch, wrought iron or steel. Minimum clear length, eighteen (18), preferably twenty four (24), inches. Minimum clearance two (2), preferably two and one-half (214), inches. Location: One (1) on each end of car opposite ladder, not more than eight ( 8 ) inches from side of car ; clearance of bottom end of handhold shall be not less than twenty- four (24) nor more than thirty (30) inches above center line of coupler. Manner of Application: Vertical end-handholds shall be securely fastened with not less than one-half (%) inch bolts with nuts outside (when possible) and riveted over, or with not less than one half (1/2) inch rivets. uncoupling-levers Number: Two (2), Uncoupling-levers may be either single or double, and of any efficient design. Dimensions : Handles of uncoupling-levers, except those shown on Plate B or of similar designs, shall be not more than six (6) inches from side of car. Uncoupling-levers of design shown on Plate B and of similar designs shall conform to the following-prescribed limits : Handles shall be not more than twelve (12), preferably nine (9), inches from sides of cars. Center lift-arms shall be not less than seven (7) inches long. Center of eye at end of center lift-arm shall be not more than three and one-half (Si/o) inches beyond center of eye of uncoupling-pin or coupler when horn of coupler is against the buffer-block or end-sill. (See Plate B.) ORDER RELATIVE TO SAFETY APPLIANCES 407 Ends of handles shall extend not less than four (4) inches below bottom of end-sill or shgdl be so constructed as to give a minimum clearance of two (2) inches around handle. Minimum drop of handles shall be twelve (12) inches; maxi- mum, fifteen (15) inches over all. (See Plate B.) Handles of uncoupling-levers of the ' ' rocking " or " push- down" type shall be not less than eighteen (18) inches from top of rail when lock -block has released knuckle, and a suit- able stop shall be provided to prevent inside arm from flying up in case of breakage. Location: One (1) on each end of car. When single lever is used it shall be placed on left side of end of car. HOPPER CARS AND HIGH-SIDE GONDOLAS WITH FIXED ENDS [Cars with sides more than thirty -six (36) i/tiches above the floor are Mgh-side cars.] HAND-BRAKES Number: Same as specified for "Box and other house cars. ' ' Dimensions : Same as specified for ' ' Box and other house eara. ' ' Location: Each hand-brake shall be so located that it can be safely operated while car is in motion. The brake-shaft shall be located on end of car to the left of, and not more than twenty-two (22) inches from, center. Manner of Application: Same as specified for "Box and other house cars. ' ' brake-step Same as specified for ' ' Box and other house cars. ' ' SILL-STEPS Same as specified for "Box and other house cars." 408 APPENDIX LADDERS Number: Same as specified for **Box and other house cars, ' ' Dimensions : Same as specified for ' ' Box and other house cars, ' ' except that top ladder-tread shall be located not more than four (4) inches from top of car. Location: Same as specified for "Box and other house cars. ' ' Manner of Application: Same as specified for "Box and other house cars. ' ' side-handholds Same as specified for "Box and other house cars." horizontal end-handholds Same as specified for "Box and other house cars." vertical end-handholds Same as specified for "Box and other house cars." uncoupling-levers Same as specified for "Box and other house ears." end-ladder clearance No part of car above end-sills within thirty (30) inches from side of car, except buffer-block, brake-shaft, brake- wheel, brake-step or uncoupling lever shall extend to within twelve (12) inches of a vertical plane parallel with end of car and passing through the inside face of knuckle when closed with coupler-horn against the buffer-block or end- sill, and no other part of end of car or fixtures on same above end-sills, other than exceptions herein noted, shall extend beyond the outer 'face of buffer-block. ORDER RELATIVE TO SAFETY APPLIANCES 409 DEOP-END HIGH-SIDE GONDOLA CARS HAND-BRAKES Number: Same as specified for "Box and other house cars. ' ' Dimensions : Same as specified for ' ' Box and other house cars. ' ' Location : Each hand-brake shall be so located that it can be safely operated while car is in motion. The brake-shaft shall be located on end of car to the left of center. / Manner op Application: Same as specified for "Box and other house cars." sill-steps Same as specified for "Box and other house cars." LADDEaiS Number: Two (2). Dimensions : Same as specified for "Box and other house cars, ' ' except that top ladder-tread shall be located not more than four (4) inches from top of car. Location : One (1) on each side, not more than eight (8) inches from right end of car, measured from inside edge of ladder-stile or clearance of ladder-treads to comer of car. Manner of Application : Same as specified for ' ' Box and other house cars." side-handholds Same as specified for "Box and other house cars." horizontal end-handholds Number: Four (4). Dimensions : Same as specified for ' ' Box and other house cars." 410 APPENDIX Location: One (1) near each side of each end of ear on face of end-silL Clearance of outer end of handhold shall be not more than sixteen (16) inches from side of car. ]\'Iaioter of Application: Same as specified for "Box and other house cars." UNCOUPLING-LEVERS Same as specified for ' ' Box and other house cars. ' ' END-LADDER CLEARANCE No part of car above end-sills within thirty (30) inches from side of car, except buffer-block, brake-shaft, brake- wheel or uncoupling-lever shall extend to within twelve (12) inches of a vertical plane parallel with end of car and passing through the inside face of knuckle when closed with coupler-horn against the buffer-block or end-sill, and no other part of end of car or fixtures on same above end-sills, other than exceptions herein noted, shall extend heyond the outer face of buffer-block. FIXEX>-END LOW-SIDE GONDOLA AND LOW-SIDE HOPPER CARS [Cars ivith sides thirty-six {36) inches or less above the floor are low-side cars.] HA2SrD-BRAKES Number: Same as specified for "Box and other house car3." Dimensions : Same as specified for "Box and other house cars. ' ' Location: Each hand-brake shall be so located that it can be safely operated while car is in motion. The brake-shaft shall be located on end of car, to the left of and not more than twenty-two (22) inches from center. Manner of Application: Same as specified for "Box and other house cars. ' ' OEDEE EELATIVB TO SAFETY APPLIANCES 411 BRAKE-STEP Same as specified for * ' Box and other house cars. ' ' SILLrSTEPS Same as specified for ' ' Box and other house cars, ' ' SIDE-HANDHOLDS Number: Same as specified for "Box and other house cars. ' ' Dimensions : Same as specified for ' ' Box and other house cars. ' ' Location: Horizontal: One (1) near each end on each side of car, not less than twenty-four (24) nor more than thirty (30) inches ahove center line of coupler, if car con- struction will permit, but handhold shall not project above top of side. Clearance of outer end of handhold shall be not more than eight (8) inches from end of car. Manner of Application: Same as specified for *'Box and other house cars." horizontal end-handholds Number: Same as specified for "Box and other house cars. ' ' Dimensions : Same as specified for "Box and other house ears. ' ' Location : One (1) near each side on each end of car not less than twenty-four (24) nor more than thirty (30) inches above center line of coupler, if car construction wiU permit. Clearance of outer end of handhold shall be not more than eight (8) inches from side of car. One (1) near each side of each end of car on face of end- sill, projecting outward or downward. Clearance of outer end of handhold shall be not more than sixteen (16) inches from side of car. Manner of Application: Same as specified for "Box and other house cars. ' ' 412 APPENDIX UNCOUPLING-LEVERS Same as specified for "Box and other house cars." END-LADDEB CLEARANCE No part of car above end-sills within thirty (30) inches from side of car, except buffer-block, brake-shaft, brake- step, brake-wheel or uncoupling-lever shall extend to within twelve (12) inches of a vertical plane parallel with end of car and passing through the inside face of knuckle when closed with coupler-horn against the buffer-block or end- sill, and no other part of end of car or fixtures on same above end-sills, other than exceptions herein noted, shall extend beyond the cuter face of buffer-block. DROP-END LOW-SIDE GONDOLA CARS HANDBRAKES Number: Same as specified for '*Box and other house cars." Dimensions : Same as specified for ' ' Box and other house cars. ' ' Location: Each hand-brake shall be so located that it can be safely operated while car is in motion. The brake-shaft shall be located on end of car to the left of center. Manner of Application: Same as specified for "Box and other house cars," provided that top brake-shaft sup- port may be omitted. SILL-STEPS Same as specified for "Box and other house cars." side-handholds Number: Same as specified for "Box and other house cars." ORDER RELATIVE TO SAFETY APPLIANCES 413 Dimensions : Same as specified for ' ' Box and other house cars. ' ' Location: Horizontal: One (1) near each end on each side of car, not less than twenty-four (24) nor more than thirty (30) inches above center line of coupler, if car con- struction will permit, but handhold shall not project above top of side. Clearance of outer end of handhold shall be not more than eight (8) inches from end of car. Manner of Application: Same as specified for "Box and other house cars." end-handholds Number: Four (4). Dimensions : Same as specified for ' * Box and other house cars. ' ' Location: Horizontal: One (1) near each side of each end of car on face of end-sill. Clearance of outer end of handhold shall be not more than sixteen (16) inches from side of car. Manner of Application: Same as specified for "Box and other house cars. ' ' uncoupling-levers Same as specified for "Box and other house cars." end-ladder clearance No part of car above end-sills within thirty (30) inches from side of car, except buffer-block, brake-shaft, brake- wheel, or uncoupling-lever shall extend to within twelve (12) inches of a vertical plane parallel with end of car and passing through the inside face of knuckle when closed with coupler-horn against the buffer-block or end-sill, and no other part of end of car or fixtures on same above end-sills, other than exceptions herein noted, shall extend beyond the outer face of buffer-block. 414 APPENDIX FLAT CARS [Cars with sides twelve (12) inches or less above the floor may he equipped the same a>s flat cars.] HAND-BRAKES Number: Same as specified for "Box and other house cars." Dimensions : Same as specified for ' ' Box and other house cars." Location: Each hand-brake shall be so located that it can be safely operated while car is in motion. The brake-shaft shall be located on the end of car to the left of center, or on side of car not more than thirty-six (36) inches from right-hand end thereof. Manner op Application: Same as specified for "Box and other house cars. ' ' SILI>-STEPS Same as specified for ' ' Box and other house cars. ' ' side-handholds Number: Same as specified for "Box and other house cars." Dimensions : Same as specified for ' ' Box and other house cars." Location : Horizontal : One ( 1 ) on face of each side-sill near each end. Clearance of outer end of handhold shall be not more than twelve (12) inches from end of car. Manner of Application: Same as specified for "Box and other house cars." end-handholds Number: Four (4). Dimensions : Same as specified for * * Box and other house cars. ' ' ORDER RELATIVE TO SAFETY APPLIANCES 415 Location: Horizontal: One (1) near each side of each end of car on face of end-sill. Clearance of outer end of handhold shall be not more thaji sixteen (16) inches from side of car. Manner of Application: Same as specified for "Box and other house cars. ' ' UNCOUPLING-LEVERS Same as specified for ' ' Box and other house cars. ' ' TANK-CARS WITH SIDE-PLATFORMS HAND-BRAKES NuMBiai: Same as specified for "Box and other house cars." Dimensions : Same as specified for ' ' Box and other house cars." Location: Each hand-brake shall be so located that it can be safely operated while car is in motion. The brake-shaft shaU be located on end of car to the left of center. ]\Ianner of Application: Same as specified for "Box and other house cars." sill-steps Same as specified for ' ' Box and other house cars. ' ' side-handholds Number: Four (4) or more. Dimensions : Same as specified for ' ' Box and other house cars. ' ' Location: Horizontal: One (1) on face of each side-sill near each end. Clearance of outer end of handhold shall be not more than twelve (12) inches from end of car. If side safety-railings are attached to tank or tank-bands, four (4) additional vertical handholds shall be applied, one 416 APPENDIX (1) as nearly as possible over each sill-step and securely fastened to tank or tank-band. Manner of Application: Same as specified for "Box and other house cars." END-HANDHOLDS Number: Four (4). Dimensions: Same as specified for "Box and other house cars. ' ' Location: Horizontal: One (1) near each side of each end of car on face of end-sill. Clearance of outer end of handhold shall be not more than sixteen (16) inches from side of car. Manner op Application: Same as specified for "Box and other house cars. ' ' tank-head handholds Number: Two (2). [Not required if safety-railing runs around ends of ta^ik.] Dimensions: Minimum diameter five-eighths (%) of an inch, wrought iron or steel. Minimum clearance two (2), preferably two and one-half (21/2), inches. Clear length of handholds shall extend to within six (6) inches of outer diameter of tank at point of application. Location: Horizontal: One (1) across each head of tank not less than thirty (30) nor more than sixty (60) inches above platform. Manner of Application: Tank-head handholds shall be securely fastened. safety-railings Number: One (1) continuous safety-railing running around sides and ends of tank, securely fastened to tank or tank-bands at ends and sides of tank; or two (2) running full length of tank at sides of car supported by posts. ORDER RELATIVE TO SAFETY APPLIANCES ill Dimensions: Not less than three-fourths (%) of an inch, iron. Location : Running full length of tank either at side sup- ported by posts or securely fastened to tank or tank-bands, not less than thirty (30) nor more than sixty (60) inches above platform. IManner of Application: Safety-railings shall be se- curely fastened to tank-body, tank-bands or posts. uncoupling-levers Same as specified for "Box and other house cars." end-ladder clearance No part of car above end-sills within thirty (30) inches from side of car, except buifer-bloek, brake-shaft, brake- shaft brackets, brake-wheel or uncoupling-lever shall extend to "within twelve (12) inches of a vertical plane parallel with end of car and passing through the inside face of knuckle when closed with coupler-horn against the buffer- block or end-sill, and no other part of end of car or fixtures on same above end-sills, other than exceptions herein noted, shall extend beyond the outer face of buffer-block. TANK CARS WITHOUT SIDE-SILLS AND TANK CARS WITH SHORT SIDE-SILLS AND END-PLATFORMS hand-brakes Number: Same as specified for "Box and other house cars." Dimensions : Same as specified for ' ' Box and other house cars." Location : Each hand-brake shall be so located that it can be safely operated while car is in motion. The brake-shaft shaU be located on end of car to the left of center. ... ^ ' Roberts Liabilities — 27 418 APPENDIX Manner of Application: Same as specified for "Box and other house cars. ' ' RUNNING-BOARDS Number: One (1) continuous running-board around sides and ends; or two (2) running full length of tank, one (1) on each side. DiMKsrsiONS: Minimum width on sides, ten (10) inches. Minimum width on ends, six (6) inches. Location: Continuous around sides and ends of cars. On tank cars having end platforms extending to bolsters, running-boards shaU extend from center to center of bolsters, one (1) on each side. Manner of Application: If side running-boards are applied below center of tank, outside edge of running- boards shall extend not less than seven (7) inches beyond bulge of tank. The running-boards at ends of car shall be not less than sir (6) inches from a point vertically above the inside face of knuckle when closed with coupler-horn against the buffer- block, end-sill or back-stop. Running-boards shall be securely fastened to tank or tank-bands. sill-steps Number: Same as specified for "Box and other house cars." Dimensions : Same as specified for ' ' Box and other house cars." Location: One (1) near each end on each side under side-handhold. Outside edge of tread of step shall be not more than four (4) inches inside of face of side of car, preferably flush with side of car. Tread shall be not more than twenty-four (24), prefera- bly not more than twenty-two (22), inches above the top of rail. ORDER RELATIVE TO SAFETY APPLIANCES 419 Manner of Application: Same as specified for ''Box and other house cars. ' ' LADDERS [// rmming-hoards are so located a^ to make ladders necessary.] Number: Two (2) on cars with continuous running- boards. Four (4) on cars with side running-boards. Dimensions: Minimum clear length of tread, ten (10) inches. Maximum spacing of treads, nineteen (19) inches. Hard-wood treads, minimum dimensions, one and one- half (11/2) by two (2) inches. "Wrought iron or steel treads, minimum diameter, five- eighths (%) of an inch. IVIinimum clearance, two (2), preferably two and one-half (21/^), inches. Location : On cars with continuous running-boards, one (1) at right end of each side. On cars with side running-boards, one (1) at each end of each running-board. Manner of Application: Ladders shall be securely fastened with not less than one-half (I/2) iiich bolts or rivets. side-handholds Number: Four (4) or more. Dimensions : Same as specified for ' ' Box and other house cars. ' ' Location: Horizontal: One (1) on face of each side-sill near each end on tank cars with short side-siQs, or one (1) attached to top of running-board projecting outward above sill-steps or ladders on tank cars without side-siUs. Clear- ance of outer end of handhold shall be not more than twelve (12) inches from end of car. If side safety-railings are attached to tank or tank-bands four (4) additional vertical handholds shall be applied, one 420 APPENDIX (1) as nearly as possible over each sill-step and securely fastened to tank or tank-band. ]\Ianner of Application: Same as specified for "Box and other house cars." END-HANDHOLDS Number: Four (4), Dimensions : Same as specified for "Box and other house cars. ' ' Location: Horizontal: One (1) near each side of eaeli end of car on face of end-sill. Clearance of outer end of handhold shall be not more than sixteen (16) inches from side of car. Manner of Application: Same as specified for "Box and other house cars. ' ' tank-head handholds Number: Two (2). [Not required if safety-railing runs around ends of tank.] Dimensions: Minimum diameter five-eighths (%) of an inch, wrought iron or steel. Minimum clearance two (2), preferably two and one-half (21^), inches. Location: Horizontal: One (1) across each head of tank not less than thirty (30) nor more than sixty (60) inches above platform on running-board. Clear length of hand- holds shall extend to within six (6) inches of outer diameter of tank at point of application. Manner of Application : Tank-head handholds shall be securely fastened. safety-railings Number : One (1) running around sides and ends of tank or two (2) running full length of tank. Dimensions: Minimmn diameter, seven-eighths (%) of an inch, wrought iron or steel. Minimum clearance, two and one-half (2^^) inches. ORDER RELATIVB TO SAFETY APPLIANCES 421 Location: Running full length of tank, not less than thirty (30) nor more than sixty (60) inches above platform or running-board. JManner of Application: Safety-railings shall be se- curely fastened to tank or tank-bands and secured against end shifting. UNCOUPLING-LEVERS Same as specified for "Box and other house cai-s." END-LADDER CLEARANCE No part of car above end-sills within thirty (30) inches from side of ear, except buffer-block, brake-shaft, brake- shaft brackets, brake-wheel, running-boards or uncoupling- lever shall extend to within twelve (12) inches of a vertical plane parallel with end of car and passing through the inside face of knuckle when closed with coupler-horn against the buffer-block or end-sill, and no other part of end of car or fixtures on same, above end-sills, other than exceptions herein noted, shall extend beyond the outer face of buffer-block. TANK CARS WITHOUT END-SILLS HAND-BRAKES Number : Same as specified for ' ' Box and other house cars. ' ' Dimensions : Same as specified for * ' Box and other house cars. ' ' Location: Each hand-brake shall be so located that it can be safely operated while car is in motion. The brake- shaft shall be located on end of car to the left of center. IVIannee of Application: Same as specified for "Box and other house cars." brake-step Same as specified for "Box and other house ears." 422 APPENDIX EUNNING-BOAEDS Number: One (1). Dimensions: Minimum width on sides, ten (10) inches. Minimum width on ends, six (6) inches. Location : Continuous around sides and ends of tank. Manner of Application : If runnning-boards are ap- plied below center of tank, outside edge of running-boards shall extend not less than seven (7) inches beyond bulge of tank. Running-boards at ends of car shall be not less than six (6) inches from a point vertically above the inside face of knuckle when closed with coupler-horn against the buffer- block, end-sill or back-stop. Running-boards shall be securely fastened to tank or tank-bands. sill-steps Number: Four (4). [// tank has high running-hoards, making ladders necessary, sill-steps must meet ladder re- quirements.] Dimensions : Same as specified for ' ' Box and other house cars." Location : One (1) near each end on each side, flush with outside edge of running-board as near end of car as prac- ticable. Tread not more than twenty-four (24), preferably not more than twenty-two (22), inches above the top of rail. Majstner OF Application : Steps exceeding eighteen (18) inches in depth shall have an additional tread and be later- ally braced. SiU-steps shall be securely fastened with not less than one-half (I/2) inch bolts with nuts outside (when possible) and riveted over j or with one-half (%) inch rivets. SIDE-HANDHOLiDS Number: Four (4) or more. ORDER RELATIVE TO SAFETY APPLIANCES 423 Dimensions : Same as specified for ' ' Box and other house ears." Location : Horizontal : One ( 1 ) near each end on each side of car over sill-step, on running board, not more than two (2) inches back from outside edge of running-board, projecting downward or outward. Where such side-handholds are more than eighteen (18) inches from end of car, an additional handhold must be placed near each end on each side not more than thirty (30) inches above center line of coupler. Clearance of outer end of handhold shall be not more than twelve (12) inches from end of car. If safety-railings are on tank, four (4) additional ver- tical handholds shall be applied, one (1) over each sill-step on tank. Manner of Application: Same as specified for "Box and other house cars. ' ' end-handholds Number: Four (4). Dimensions : Same as specified for ' ' Box and other house cars. ' ' Location: Horizontal: One (1) near each side on each end of car on running-board, not more than two (2) inches back from edge of running-board projecting downward or outward, or on end of tank not more than thirty (30) inches above center line of coupler. Manner op Application: Same as specified for "Box and other house cars. ' ' safety-railings Number: One (1). Dimensions: Minimum diameter seven-eighths (%) of an inch, wrought iron or steel. Minimum clearance two and one-half (21/2) inches. Location: Safety-railings shall be continuous around 424 APPENDIX sides and ends of ear, not less than thirty (30) nor more than sixty (60), inches above running-boaj:'d. IManner op Application: Safety-railings shall be se- curely fastened to tank or tank-bands, and secured against end shifting, UNCOUPLING-LEVERS Number: Same as specified for "Box and other house cars. ' ' Dimensions : Same as specified for "Box and other house cars," except that minimum length of uncoupling-lever shall be forty-two (42) inches, measured from center line of end of car to handle of lever. Location: Same as specified for "Box and other house cars," except that uncoupling-lever shall be not more than thirty (30) inches above center line of coupler. END-LADDKl CLEARANCE No part of car above buffer-block within thirty (30) inches from side of car, except brake-shaft, brake-shaft brackets, brake-wheel or uncoupling-lever shall extend to within twelve (12) inches of a vertical plane parallel with end of car and passing through the inside face of knuclde when closed with coupler-horn against the buffer-block or back-stop, and no other part of end of car or fixtures on same, above buffer-block, other than exceptions herein noted, shall extend beyond the face of buffer-block. CABOOSE CARS WITH PLATFORMS HAND-BRAKES Number : Each caboose car shall be equipped with an effi- cient hand-brake which shall operate in harmony with the power-brake thereon. The hand-brake may be of any efficient design, but must provide the same degree of safety as the design shown on Plate A. ORDER RELATIVE TO SAFETY APPLIANCES 425 Dimensions: Same as specified for "Box and other house cars." Location: Each hand-brake shall be so located that it can be safely operated while car is in motion. The brake-shaft on caboose cars with platforms shall be located on platform to the left of center. Manner of Application : Same as specified for ' ' Box and other house cars. ' ' running-boards Number: One (1) longitudinal running-board. Dimensions : Same as specified for ' ' Box and other house ears. ' ' Location: Full length of car, center of roof. [On ca- boose cars with cupolas, longitudinal running-hoards shall extend from cupola to ends of roof.] Outside-metal-roof cars shall have latitudinal extensions leading to ladder locations. Manner of Application: Same as specified for "Box and other house cars." LADDERS Number: Two (2). Dimensions: None specified. Location: One (1) on each end. Manner of Application: Same as specified for "Box and other house cars." roof-handholds Number: One (1) over each ladder. Where stiles of ladders extend twelve (12) inches or more above roof, no other roof -handholds are required. Dimensions: Same as specified for "Box and other house ears." Location : On roof of caboose, in line with and running parallel to treads of ladder, not less than eight (8) nor more than fifteen (15) inches from edge of roof. 426 APPENDIX Manner of Application: Same as specified for **Box and other house cars. ' ' cupola-handholds Number: One (1) or more. Dimensions: Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. Minimum clearance two (2), preferably two and one-half (214), inches. Location: One (1) continuous handhold extending around top of cupola not more than three (3) inches from edge of cupola-roof. Four (4) right-angle handholds, one (1) at each comer, not less than sixteen (16) inches in clear length from point of angle, may take the place of the one ( 1 ) continuous hand- hold specified, if locations coincide. Manner of Application : Cupola-handholds shall be se- curely fastened with not less than one-half (^) inch bolts with nuts outside and riveted over or with not less than one- half (1/^) inch rivets. side-handholds Number: Four (4). Dimensions: Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. Minimum clear length, thirty -six (36) inches. Minimum clearance, two (2), preferably two and one-half (21/^), inches. Location: One (1) near each end on each side of car, curving downward toward center of car from a point not less than thirty (30) inches above platform to a point not more than eight (8) inches from bottom of car. Top end of handhold shall be not more than eight (8) inches from outside face of end-sheathing. Manner of Application: Same as specified for "Box and other house cars. ' ' ORDER RELATT/B TO SAFETY APPLIANCES 427 END-HANDHOLDS Number: Four (4). Dimensions : Same as specified for ' ' Box and other house ears. ' ' Location: Horizontal: One (1) near each side on each end of car on face of platform end-sill. Clearance of outer end of handhold shall be not more than sixteen (16) inches from end of platform end-sill. Manner of Application: Same as specified for "Box and other house cars." end-platform handholds Number: Four (4). Dimensions: Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. Minimum clearance, two (2), preferably two and one-half (2i/o), inches. Location : One ( 1 ) right-angle handhold on each side of each end extending horizontally from door-post to corner of car at approximate height of platform-raU, then downward to within twelve (12) inches of bottom of car. Manner of Application : Handholds shall be securely fastened with bolts, screws or rivets. caboose platform-steps Safe and suitable box steps leading to caboose platforms shall be provided at each corner of caboose. Lower tread of step shall be not more than twenty-four (24) inches above top of rail. uncoupling-levers Same as specified for ''Box and other house cars." 428 APPENDIX CABOOSE CARS WITHOUT PLATFORMS HAND-BRAKES Number: Same as specified for ''Box and other house cars. ' ' Dimensions : Same as specified for ' ' Box and other house cars. ' ' Location : Each hand-brake shall be so located that it can be safely operated while car is in motion. The brake-shaft on caboose cars without platforms shall be located on end of car to the left of center. Manner of Application: Same as specified for "Box and other house cars. ' ' BRAKE-STEP Same as sjDecified for "Box and other house ears." running-boards Number: Same as specified for "Box and other house cars. ' ' Dimensions : Same as specified for * ' Box and other house cars. ' ' Location : Full length of car, center of roof. [On ca- boose cars with cupolas, longitudinal running-hoards shall extend from cupola to ends of roof.] Outside-metal-roof cars shall have latitudinal extensions leading to ladder locations. Manner op Application: Same as specified for "Box and other house cars. ' ' sill-steps Same as specified for ' ' Box and other house ears. ' ' side-door steps Number: Two (2) [if caboose has side-doors]. Dimensions: Minimum length, five (5) feet. ORDER RELATIVE TO SAFETY APPLIANCES 429 Minimum width, six (6) inches. Minimum thickness of tread, one and one-half (lYz) inches. Minimum height of back-stop, three (3) inches. IMinimum height from top of rail to top of tread, twenty- four (24) inches. Location: One (1) under each side-door. Manner of Application: Side-door steps shall be sup- ported by two (2) iron brackets having a minimum cross- sectional area seven-eighths {%) by three (3) inches or equivalent, each of which shall be securely fastened to car by not less than two (2) three-fourth (%) inch bolts. LADDERS Number: Four (4). Dimensions : Same as specified for ' * Box and other house cars. ' ' Location: Same as specified for "Box and other house cars, ' ' except when caboose has side-doors, then side-ladders shall be located not more than eight (8) inches from doors. Manner of Application: Same as specified for "Box and other house cars." end-ladder clearance No part of car above end-sills within thirty (30) inches from side of car, except buffer-block, brake-shaft, brake- wheel, brake-step, running-board or uncoupling-lever shall extend to within twelve (12) inches of a vertical plane parallel with end of car and passing through the inside face of knuckle when closed with coupler-horn against the buffer-block or end-sill, and no other part of end of car or fixtures on same above end-sills, other than exceptions herein noted, shall extend beyond the outer face of buffer- block. roof-handholds Number: Four (4). . 430 APPENDIX Dimensions : Same as specified for * ' Box and other house ears. ' ' Location : One (1) over each ladder, on roof in line with and running parallel to treads of ladder, not less than eight (8) nor more than fifteen (15) inches from edge of roof. "Where stiles of ladders extend twelve (12) inches or more above roof, no other roof-handholds are required. Manner of Appljcation: Roof -handholds shall be se- curely fastened with not less than one-half (Vo) inch bolts with nuts outside (when possible) and riveted over, or with not less than one-half (i^) inch rivets. cupola-handholds Number: One (1) or more. Dimensions: Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. Minimum clearance, two (2), preferably two and one- half (214), inches. Location: One (1) continuous cupola-handhold extend- ing around top of cupola, not more than three (3) inches from edge of cupola roof. Four (4) right-angle handholds, one (1) at each corner, not less than sixteen (16) inches in clear length from point of angle, may take the place of the one (1) continuous hand- hold specified, if locations coincide. Manner of Application: Cupola-handhold shall be se- curely fastened with not less than one-half (Yo) inch bolts with nuts outside and riveted over or with not less than one-half (^) inch rivets. side-handholds Number: Four (4). Dimensions : Same as specified for ' ' Box and other house cars. ' ' Location: Horizontal: One (1) near each end on each side of car, not less than twenty-four (24) nor more than thirty (30) inches above center line of coupler. Clearance ORDER RELATIVE TO SAFETY APPLIANCES 431 of outer end of handhold shall be not more than eight (8) inches from end of car. Manner op Application: Same as specified for ''Box and other house cars." SIDE-DOOR HANDHOLDS Number: Four (4) : Two (2) curved, two (2) straight. Dimensions: Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. Minimum clearance two (2), preferably two and one-half (21/2), inches. Location : One ( 1 ) curved handhold, from a point at side of each door opposite ladder, not less than thirty -six (36) inches above bottom of car, curving away from door down- ward to a point not more than six (6) inches above bottom of car. One (1) vertical handhold at ladder side of each door from a point not less than thirty-six (36) inches above bot- tom of car to a point not more than six (6) inches above level of bottom of door. Manner op Application : Side-door handholds shall be securely fastened with not less than one-half ( I/2 ) inch bolts with nuts outside (when possible) and riveted over, or with not less than one-half (1/2) inch rivets. horizontal END-HANDHOLDS Number: Same as specified for "Box and other house cars. ' ' Dimensions : Same as specified for ' ' Box and other house cars. ' ' Location: Same as specified for "Box and other house cars," except that one (1) additional end-handhold shall be on each end of cars with platform end-sills as heretofore described, unless car has door in center of end. Said hand- hold shaU be not less than twenty-four (24) inches in length, located near center of car, not less than thirty (30) nor more than sixty (60) inches above platform end-sill. 432 APPENDIX Manner of Application: Same as specified for "Box and other house cars." VERTICAL END-HANDHOLDS Same as specified for ' ' Box and other house cars. ' ' UNCOUPLING-LEVERS Same as specified for ''Box and other house cars." PASSENaER-TRAIN, CARS WITH WIDE VESTI- BULES HAND-BRAKES Number: Each passenger-train car shaU be equipped with an efficient hand-brake, which shall operate in har- mony with the power-brake thereon. Location : Each hand-brake shall be so located that it can be safely operated while car is in motion. SIDE-HANDHOLDS Number: Eight (8). Dimensions: Minimum diameter, five-eighths (%) of an inch, metal. Minimum clear length, sixteen (16) inches. Minimum clearance, one and one-fourth (1^), preferably one and one-half (1%), inches. Location: Vertical: One (1) on each vestibule door-post. Manner of Application: Side-handholds shall be se- curely fastened with bolts, rivets or screws. END-HANDHOLDS Number: Four (4). Dimensions: Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. IVIinimum clear length, sixteen (16) inches. ORDER RELATIVE TO SAFETY APPLIANCES 433 Minimum clearance, two (2), preferably two and one-half (2V2), inches. Handholds shall be flush with or project not more than one (1) inch beyond vestibule face. Location: Horizontal: One (1) near each side on each end projecting downward from face of vestibule end-sill. Clearance of outer end of handhold shall be not more than sixteen (16) inches from side of car. Manner of Application: End-handholds shall be se- curely fastened with bolts or rivets. When marker-sockets or brackets are located so that they cannot be conveniently reached from platforms, suitable steps and handholds shall be provided for men to reach such sockets or brackets. UNCOUPLING-LEVERS Uncoupling attachments shall be applied so they can be operated by a person standing on the ground. Minimum length of ground uncoupling attachment, forty- two (42) inches, measured from center line of end of car to handle of attachment. On passenger-train cars used in freight or mixed-train service, the uncoupling attachments shall be so applied that the coupler can be operated from left side of car. PASSENGER-TRAIN CARS WITH OPEN END- PLATFORMS HAND-BRAKES Number: Each passenger-train car shall be equipped with an efficient hand-brake, which shall operate in har- mony with the power-brake thereon. Location: Each hand-brake shaU be so located that it can be safely operated while car is in motion, Roberts LlabillUes— 2 8 434 APPENDIX END-HANDHOLDS Number: Four (4). Dimensions: Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. Minimum clear length, sixteen (16) inches. Minimum clearance, two (2), preferably two and one-half (21/2), inches. Handholds shall be flush with or project not more than one (1) inch beyond face of end-sill. Location: Horizontal: One (1) near each side of each end on face of platform end-sill, projecting downward. Clearance of outer end of handhold shall be not more than sixteen (16) inches from end of end-sill. Manner of Application: End-handholds shall be se- curely fastened with bolts or rivets. end platform-handholes Number : Four (4) . [Cars equipped with safety-gates do not require end platform-Jw/iidholds.] Dimensions: Minimum clearance two (2), preferably two and one-half (21/2), inches metal. Location : Horizontal from or near door-post to a point not more than twelve (12) inches from corner of car, then approximately vertical to a point not more than six (6) inches from top of platform. Horizontal portion shall be not less than twenty-four (24) inches in length nor more than forty (40) inches above platform. Manner of Application : End platform-handholds shall be securely fastened with bolts, rivets or screws. xjncoupling-levers Uncoupling attachments shall be applied so they can be operated by a person standing on the ground. Minimum length of ground uncoupling-attachment, forty-tAvo (42) inches, measured from center of end of car to handle of attachment. ORDER RELATIVE TO SAFETY APPLIANCES 435 On passenger-train cars used in freight or mixed-train service the uncoupling attachments shall be so applied that the coupler can be operated from left side of car. PASSENGER-TRAIN CARS WITHOUT END- PLATFORMS HAND BRAKES Number: Each passenger-train car shall be equipped with an efficient hand-brake which shall operate in har- mony with the power-brake thereon. Location: Each hand-brake shall be so located that it can be safely operated while car is in motion. SILL-STEPS Number: Four (4). Dimensions: Minimum length of tread ten (10), prefer- ably twelve (12), inches. Minimum cross-sectional area one-half (i/^) by one and one-half (II/2) inches or equivalent, wrought iron or steel. Minimum clear depth eight (8) inches. Location: One (1) near each end on each side not more than twenty-four (24) inches from corner of car to center of tread of sill-step. Outside edge of tread of step shall be not more than two (2) inches inside of face of side of car. Tread shall be not more than twenty-four (24), prefer- ably not more than twenty-two (22), inches above the top of rail. Manner op Application: Steps exceeding eighteen (18) inches in depth shall have an additional tread and be later- ally braced. Sill-steps shall be securely fastened with not less than one-half (Yo) inch bolts with nuts outside (when possible) and riveted over, or with not less than one-half (i/^) inch rivets. 436 APPENDIX SIDE-HANDHOLDS Number: Four (4). DiMEasrsiONS : Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. Minimum clear length, sixteen (16), preferably twenty- four (24), inches. Minimum clearance, two (2), preferably two and one-half (21/2), inches. Location: Horizontal or vertical: One (1) near each end on each side of car over sill-step. If horizontal, not less than twenty-four (24) nor more than thirty (30) inches above center line of coupler. If vertical, lower end not less than eighteen (18) nor more than twenty- four (24) inches above center line of coupler, iV'LiNNER OF Application: Side-handholds shall be se- curely fastened with bolts, rivets or screws. END-HANDHOLDS Number: Four (4). Dimensions: Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. Minimum clear length, sixteen (16) inches. Minimum clearance, two (2), preferably two and one-half (21/2), inches. Location: Horizontal: One (1) near each side on each end projecting doAvnward from face of end-sill or sheathing. Clearance of outer end of handhold shall be not more than sixteen (16) inches from side of car. Manner op Application : Handholds shall be flush with or project not more than one (1) inch beyond face of end- sill. End-handholds shall be securely fastened with bolts or rivets. When marker sockets or brackets are located so that they camiot be convenient!}^ reached from platforms, suitable ORDER RELATIVE TO SAFETY APPLIANCES 437 steps and handholds shall be provided for men to reach such sockets or brackets. END-HANDRAILS [On cars with projecting end'SiUs.] Number: Four (4). Dimensions: Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. Minimum clearance, two (2), preferably two and one-half (21/2), inches. Location: One (1) on each side of each end, extending horizontally from door-post or vestibule-frame to a point not more than six (6) inches from corner of car, then approximately vertical to a point not more than six (6) inches from top of platform end-sill ; horizontal portion shall be not less than thirty (30) nor more than sixty (60) inches above platform end-sill. Manner of Application: End-handrails shall be se- curely fastened with bolts, rivets or screws, side-door steps Number: One (1) under each door. Dimensions: Minimum length of tread, ten (10), prefer- ably twelve (12), inches. Minimum cross-sectional area, one-half (i/o) by one and one-half (1^^) inches or equivalent, wrought iron or steel. Minimum clear depth, eight (8) inches. Location: Outside edge of tread of step not more than two (2) inches inside of face of side of car. Tread not more than twenty-four (24), preferably not more than twenty-two (22), inches above the top of rail. Manner of Application: Steps exceeding eighteen (18) inches in depth shall have an additional tread and be later- ally braced. Side-door steps shall be securely fastened with not less than one-half (i/^) inch bolts with nuts outside (when 438 APPENDIX possible) and riveted over, or with not less than one-half (1/^) inch rivets. A vertical handhold not less than twenty-four (24) inches in clear length shall be applied above each side-door step on door-post. UNCOUPLING-LEVERS Uncoupling attachments shall be applied so they can be operated by a person standing on the ground. Minimum length of ground uncoupling attachment, forty-two (42) inches, measured from center line of end of car to handle of attachment. On passenger-train cars used in freight or mixed-train service, the uncoupling attachment shall be so applied that the coupler can be operated from the left side of car. STEAM LOCOMOTIVES USED IN ROAD SERVICE TENDER SILL-STEPS Number: Four (4) on tender. Dimensions: Bottom tread not less than eight (8) by twelve (12) inches, metal. [May have wooden treads.] If stirrup-steps are used, clear length of tread shall be not less than ten (10), preferably twelve (12), inches. Location: One (1) near each corner of tender on sides. Manner op Application : Tender sill-steps shall be se- curely fastened with bolts or rivets. pilot sill-steps • Number: Two (2). Dimensions: Tread not less than eight (8) inches in width by ten (10) inches in length, metal. [May have wooden treads.] Location: One (1) on or near each end of buffer-beam outside of rail and not more than sixteen (16) inches above rail. ORDER RELATIVE TO SAFETY APPLIANCES 439 Manner of Application: Pilot sill-steps shall be se- curely fastened with bolts or rivets. pilot-beam handholds Number: Two (2). Dimensions: Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. Minimum clear length, fourteen (14), preferably sixteen (16), inches. Minimum clearance, two and one-half (2i/^) inches. Location: One (1) on each end of buffer-beam. [If uncoupling -lever extends across front end of locomo- tive to within eight (8) inches of end of huffer-heam, and is seven-eighths (%) o/ an inch or more in diameter, securely fastened, with a clearance of twv and mie-half (2^/^) inches, it is a handiwld.] Manner of Application : Pilot-beam handholds shall be securely fastened with bolts or rivets. side-handholds Number: Six (6). Dimensions: Minimum diameter, if horizontal, five- eighths (%) of an inch; if vertical, seven-eighths (%) of an inch, wrought iron or steel. Horizontal, minimum clear length, sixteen (16) inches. Vertical, clear length equal to approximate height of tank. Minimum clearance two (2), preferably two and one-half (21/^), inches. Location: Horizontal or vertical: If vertical, one (1) on each side of tender within six (6) inches of rear or on corner, if horizontal, same as specified for "Box and other house cars." One (1) on each side of tender near gangway; one (1) on each side of locomotive at gangway ; applied vertically. Manner of Application : Side-handholds shall be secure- ly fastened with not less than one-half (%) inch bolts or rivets. 440 appendix reae-end handholds Number: Two (2). Dimensions: Minimum diameter, five-eighths (%) of an inch, wrought iron or steel. Minimum clear length, fourteen (14) inches. Minimum clearance two (2), preferably two and one-half (2I/2), inches. Location: Horizontal: One (1) near each side of rear end of tender on face of end-sill. Clearance of outer end of handhold shall be not more than sixteen (16) inches from side of tender. Manner of Application: Rear-end handholds shall be securely fastened with not less than one-half (1/2) inch bolts or rivets. uncoupling-levers Number: Two (2) double levers, operative from either side. Dimensions: Rear-end levers shall extend across end of tender with handles not more than twelve (12), preferably nine (9), inches from side of tender with a guard bent on handle to give not less than two (2) inches clearance around handle. Location : One (1) on rear end of tender and one (1) on front end of locomotive. Handles of front-end levers shall be not more than twelve (12), preferably nine (9), inches from ends of buffer-beam, and shall be no constructed as to give a minimum clearance of two (2) inches around handle. jNIanner of Application : Uncoupling-levers shall be se- curely fastened with bolts or rivets. couplers Locomotives shall be equipped with automatic couplers at rear of tender and front of locomotive. ORDER RELATIVE TO SAFETY APPLIANCES 441 STEAM LOCOMOTIVES USED IN SWITCHING SERVICE FOOTBOARDS Number: Two (2) or more. Dimensions: Minimum width of tread, ten (10) inches, wood. Minimum tliickness of tread, one and one-half (1%), preferably two (2), inches. Minimum height of back-stop, four (4) inches above tread. Height from top of rail to top of tread, not more than twelve (12) nor less than nine (9) inches. Location: Ends or sides. If on ends, they shall extend not less than eighteen (18) inches outside of gauge of straight track, and shall be not more than twelve (12) inches shorter than buffer-beam at each end. Manner of Application: End footboards may be con- structed in two (2) sections, provided that practically all space on each side of coupler is filled ; each section shall be not less than three (3) feet in length. Footboards shall be secui'ely bolted to two (2) one (1) by four (4) inches metal brackets, provided footboard is not cut or notched at any point. If footboard is cut or notched or in two (2) sections, not less than four (4) one (1) by three (3) inches metal brackets shall be used, two (2) located on each side of coupler. Each bracket shall be securely bolted to buffer-beam, end-sill or tank-frame by not less than two (2) seven-eighths (%) inch bolts. If side footboards are used, a substantial handhold or rail shall be applied not less than thirty (30) inches nor more than sixty (60) inches above tread of footboard. sill-steps Number: Two (2) or more. Dimensions : Lower tread of step shall be not less than 442 APPENDIX eight (8) by twelve (12) inches, metal. [May have wooden treads.] If stirrup-steps are used, clear length of tread shall be not less than ten (10), preferably twelve (12), inches. Location: One (1) or more on each side at gangway se- cured to locomotive or tender. Manner of Application: Sill-steps shall be securely fastened with bolts or rivets. end-handholds Number: Two (2). Dimensions: Minimum diameter, one (1) inch, wrought iron or steel. Minimum clearance, four (4) inches, except at coupler casting or braces, when minimum clearance shall be two (2) inches. Location: One (1) on pilot buffer-beam ; one (1) on rear end of tender, extending across front end of locomotive and rear end of tender. Ends of handholds shall be not more than six (6) inches from ends of buffer-beam or end-sill, securely fastened at ends. Manner of Application: End-handholds shall be se- curely fastened with bolts or rivets. side-handholds Number: Four (4). Dimensions: Minimum diameter, seven-eighths (%) of an inch, wrought iron or steel. Clear length equal to approximate height of tank. Minimum clearance, two (2), preferably two and one-half (21/2), inches. Location: Vertical: One (1) on each side of tender near front corner; one (1) on each side of locomotive at gang- way. Manner op Application: Side-handholds shall be se- curely fastened with bolts or rivets. ORDER RELATIVE TO SAFETY APPLIANCES 443 UNCOUPLING-LEVERS Number: Two (2) double levers, operative from either side. Dimensions: Handles of front-end levers shall be not more than twelve (12), preferably nine (9), inches from ends of buffer-beam, and shall be so constructed as to give a minimum clearance of two (2) inches around handle. Rear-end levers shall extend across end of tender with handles not more than twelve (12), preferably nine (9), inches from side of tender, with a guard bent on handle to give not less than two (2) inches clearance around handle. Location : One (1) on rear end of tender and one (1) on front end of locomotive. handrails and steps for headlights Switching-locomotive with sloping tenders with manhole or headlight located on sloping portion of tender shall be equipped with secure steps and handrail or with platform and handrail leading to such manhole or headlight. end-ladder clearance No part of locomotive or tender except draft-rigging, coupler and attachments, safety-chains, buffer-block, foot- board, brake-pipe, signal-pipe, steam-heat pipe or arms of uncoupling-lever shall extend to within fourteen (14) inches of a vertical plane passing through the inside face of knuckle when closed with horn of coupler against buffer- block or end-sill. couplers Locomotives shall be equipped with automatic couplers at rear of tender and front of locomotive. 444 APPENDIX SPECIFICATIONS COMMON TO ALL STEAM LOCOMOTIVES HAND-BRAKES Hand-brakes will not be required on locomotives nor on tenders when attached to locomotives. If tenders are detached from locomotives and used in special service, they shall be equipped with efficient hand- brakes. RUNNING-BOABDS Number: Two (2). Dimensions: Not less than ten (10) inches wide. If of wood, not less than one and one-half (II/2) inches in thick- ness; if of metal, not less than three-sixteenths (ye) of an inch, properly supported. Location : One ( 1 ) on each side of boiler extending from cab to front end near pilot-beam. [Running-hoards may he in sections. Flat-top steam-chests may form section of running-hoard.^ Manner of Application: Running boards shall be se- curely fastened with bolts, rivets or studs. Locomotives having Wootten type boilers with cab located on top of boiler more than twelve (12) inches forward from boiler-head shall have suitable running-boards running from cab to rear of locomotive, with handrailings not less than twenty (20) nor more than forty-eight (48) inches above outside edge of running-boards, securely fastened with bolts, rivets or studs. handrails Number: Two (2) or more. Dimensions: Not less than one (1) inch in diameter, wrought iron or steel. Location: One (1) on each side of boiler extending from near cab to near front end of boiler, and extending across front end of boiler, not less than twenty-four (24) nor more than sixty-six (66) inches above running-board. ORDER RELATIVE TO SAFETY APPLIANCES 445 Manner of Application: Handrails shall be securely fastened to boiler, tenders of vanderbilt type Tenders known as the Vanderbilt type shall be equipped with running-boards; one (1) on each side of tender not less than ten (10) inches in width and one (1) on top of tender not less than forty-eight (48) inches in width, extending from coal space to rear of tender. There shall be a handrail on each side of top running- board, extending from coal space to rear of tank, not less than one (1) inch in diameter and not less than twenty (20) inches in height above running-board from coal space to manhole. There shall be a handrail extending from coal space to within twelve (12) inches of rear of tank, attached to each side of tank above side running-board, not less than thirty (30) nor more than sixty -six (66) inches above running- board. There shall be one (1) vertical end-handhold on each side of Vanderbilt type of tender, located within eight (8) inches of rear of tank extending from within eight (8) inches of top of end-sill to within eight (8) inches of side handrail. Post supporting rear end of side running-board if not more than two (2) inches in diameter and properly located, may form section of handhold. An additional horizontal end-handhold shall be applied on rear end of all Vanderbilt type of tenders which are not equipped with vestibules. Handhold to be located not less than thirty (30) nor more than sixty-six (66) inches above top of end-sill. Clear length of handhold to be not less than forty-eight (48) inciies. Ladders shall be applied at forward ends of side running- boards. handrails and steps for headlights Locomotives having headlights which can not be safely and conveniently reached from pilot-beam or steam-chests 446 APPENDIX shall be equipped with secure handrails and steps suitable for the use of men in getting to and from such headlights. A suitable metal end or side-ladder shall be applied to all tanks more than forty-eight (48) inches in height, measured from the top of end-sill, and securely fastened with bolts or rivets, COUPLERS Locomotives shall be equipped with automatic couplers at rear of tender and front of locomotive. Cars of construction not covered specifically in the fore- going sections, relative to handholds, sill-steps, ladders, hand-brakes and running-boards may be considered as of special construction, but shall have, as nearly as possible, the same complement of handholds, sill-steps, ladders, hand- brakes and running-boards as are required for cars of the nearest approximate type. "Right" or "Left" refers to side of person when facing end .or side of car from ground. To provide for the usual inaccuracies of manufacturing and for wear, where sizes of metal are specified, a total variation of five (5) per cent below size given is permitted. And it is further ordered, That a copy of this order be at once served on all common carriers, subject to the provisions of said act, in a sealed envelope by registered mail. r fMtn. when horn of cpup/er/i Appl/catidn to CO^c aga/'ns^ ba/ferd/ocA or end a///, any,i/>5/offecf orcrcAet /s u6ed tv/ten rod /s tn BM/re/ne fortvard i ■ fio&ttion in brachef. Prefar&t The em 4''te/o, ■fobei. cleata Appl/caftOf^ to oufsk Form of Srake aha/t step {Any efficient an^anyemmt of ratchei-whed and paid may he used.] £•^03 //fS^Pua SpfS-^nO O/ l40l-f-P0tl€fii^ ^^JfJOJtf HI Xb/if //ff/ puD Sui^/i/ ui UJop -99^/ SuiMO//o 'S^odfil/SUO '9S'j^^m40 o ^^q sq p/noif9 pea A/4 XjesssJ9u u pJOMJOj 3U/9J/)C3 L p9//0/f//'pUO '//li plJ» JO ipo/q J3j/nq /^usoba tfJ9/MM:iSSlON. 494 INDEX OEDERS— Cont. Negligence in, when not shown, § 24, pp. 64, 65. P PAIN AND SUFFERING— Death, right of beneficiaries to recover for, § 89, pp. 174-176. Recovery for, prior to 1910 amendment, § 84, pp. 162, 163. PANAMA CANAL ZONE— Application of Employers ' Liability Act to, § 70, p. 144. PARENT AND CHILD— Damages, apportionment between mother and chUd, pp. 154, 155n. death of child where widow or children survive, § 73, p. 147. Death, loss of care, counsel, training and education by minors as elements of damages, § 81, pp. 158, 159. Death of adult son, measure of damages, § 80, pp. 154-156. PARTIES— Actions, persons entitled to bring, § 71, p. 146. Actions under Federal Employers' Liability Act, proper parties, §§ 139-147, pp. 246-253. Administrators, revival of actions commenced by employe during lifetime, § 143, p. 251. Ancillary administrator, right to sue for death, § 142, p. 250. Foreign administrator, right of to sue, § 147, p. 253. Lessor of railroad as party defendant, § 146, pp. 252, 253. Want of capacity in widow to sue not waivable, § 141, pp. 248, 249. when may be raised, § 241, pp. 248, 249. Widow suing in own name in one suit and as administratrix in another, election, § 175, pp. 307-311. PASSENGER CAES— Equipment on, order of Interstate Commerce Commission, App. pp. 432-438. PASSENGER RAILROADS— Employers ' Liability Act, application to, § 59, pp. 130, 131. PASSENGER RECORDS— Custodian of, § 168, p. 291. PASSENGERS— Express agents as passengers or employes of railroad, § 44, p. 109. PASSES— Brakeman injured while returning from work on, § 39, p. 102. PAUPERS— Right to sue as, in federal courts, § 179, pp. 318, 319. PERSONAL ERRANDS— Fireman injured on returning to work from, § 39, pp. 101, 102. Injury to employe while returning from, p. 25ru INDEX 495 PILE DRIVER— Eepairing bridge, employe struck by pile, § 23, p, 52. PILOTS— Hostler 's helper injured while riding on, in violation of rules, § 14, p. 29. SiU steps on, order of Interstate Commerce Commission, App. p. 438. Use of engine not equipped with footboard as negligence, § 23, pp. 50, 51. PIPE BREAKING— Negligence, insufl&eiency of evidence to show, § 24, p. 63. PITS— Engineer falling into, on stepping from engine, § 14, p. 26. FaU into, risk assumed, § 105, pp. 210, 211. PLACE OF INJURY— Conductor injured while inspecting interstate train from scale track, §38, p. 98. Effect as determining application of Act, § 28, p. 69. Going to work to relieve interstate crew, fireman killed, § 39, p. 100. Liability as affected by violation of rule, § 14, p. 29. Liability when disconnected with employment, § 14, p. 24. Rest shanty, hostler injured while walking through yards to, § 39, p. 102. Returning from work on hand car, employment in interstate commerce, § 39, p. 99. Sleeping in bunk car, employment in interstate commerce, § 39, pp. 99, 100. Street, employe injured while walking on, § 39, p. 103. PLANT FACILITIES- Logging roads as, § 54, pp. 124, 125. PLATFORMS— Boxes on, steps of baggage car torn off by striking, § 23, p. 53. Brakeman crushed against, failuxe to show negligence, § 24, p. 63. Openings, failure to illuminate and guard, § 24, p. 55. PLEADING— Amendment, conformity to proofs, p. 256n. controlling effect of state laws, § 9, p. 16. propriety of after expiration of period of, § 162, pp. 281-284. to answer setting up statute after evidence in, propriety of striking, § 161, p. 281. when not allowed after expiration of period of limitation, § 163, pp. 285-287. Answer, omissions supplied by, § 150, p. 260. right to raise applicability of Federal Act by, § 159, p. 277. 496 INDEX PLEADING — Cont. Assumption of risk, necessity for, § 106, p. 212. Beneficiaries named in statute, necessity for allegation of sur- vival of, § 157, pp. 274, 275. Cause of action under Federal Act, recovery where petition under state law, §§ 149, 160, pp. 257-263, 277-280. Cause of action under state law, recovery not permitted under Federal Act, § 148, p. 255. recovery permitted under Act, when, § 150, p. 250. harmless error when, § 151, pp. 263-268. Cause of action, when stated, § 23, p. 54. Children, necessity for allegations as to number and age, § 157, p. 275. Common carrier, necessity for alleging that defendant is, § 148, p. 256. Contributory negligence, necessity for determined by state law, § 119, pp. 226, 227. Counts, petition setting causes of action under both state and federal laws in different counts, § 149, p. 257. right to set up action under both state and Federal Acts in separate counts, § 152, pp. 268-270. Defective statement of cause of action as distinguished from defective cause of action, § 150, p. 263. Defendant, necessity for pleading Federal Act to defeat recovery under state law, § 161, p. 280. Demurrer, misjoinder of counts setting up cause of action under state and Federal Acts, p. 269n. waiver of departure by going to trial, § 150, p. 263. Departure, reply seeking application of Federal Act as consti- tuting, § 150, p. 263. Election, controlling effect of state laws, § 9, p. 16. Iowa Statute, § 173, pp. 302-304. law governing, § 173, pp. 302-304. stage of proceedings at which should be sustained, § 172, pp. 300-302. when motion should have been sustained before trial, § 174, pp. 304-307. widow suing in own name in one suit and as administratrix in another, power to require, § 175, pp. 307-311. Facts showing injury within act, necessity for pleading, § 148, pp. 254-256. Federal questions, necessity for raising by, to permit review by U. S. Supreme Court, § 135, p. 243. Interstate commerce, insufficiency of allegation to show engage- ment in, § 156, p. 273. necessity for alleging engagement in, § 148, p. .256. INDEX 497 PLEADING— Cont. Interstate commerce — Cont. sufficiency of allegations as to engagement in, §§34, 155, pp. 87, 271-273. Jumping from train in fear of explosion, sufficiency of com- plaint, p. 272n. Limitations, propriety of amendment after expiration of period of, § 162, pp. 281-284. when not allowed after expiration of period of, § 163, pp. 285-287. Negligence, sufficiency of determined by state laws, § 154, p. 271. Pecuniary loss to beneficiaries, necessity for allegation showing, § 158, pp. 275, 276. State laws as to sufficiency of pleading, controlling effect of, § 154, p. 271. State rule of procedure as determining right to plead under separate counts, p. 269n. Statute, necessity for expressly declaring on, pp. 260, 261n. necessity for pleading, p. 256n. necessity for specific reference to, § 153, p. 270. sufficiency of allegations to bring case within, § 153, p. 270. Variance, controlling effect of state laws, § 9, p. 16. petition under state law and evidence showing application of Federal Act, § 160, pp. 277-280. POLING CAR— Switchman killed while, liability for, § 24, pp. 56, 57. POOEr— See Paupers. PORTERS— Falling through bridge, § 23, p. 53. Injured while lifting ice for water cooler, § 38, p. 94. Pullman, employment in interstate commerce, § 43, pp. 108, 109. POWER BRAKES— Interstate Commerce Commission order fixing minimum per- centage of, App. p. 394. Provisions governing, App. pp. 386-393. PRACTICE— Demurrer to evidence, state laws inapplicable in ruling on, § 166, p. 289. Election, Iowa Statute, § 173, pp. 303, 304. law governing motions to require, § 173, pp. 302, 303. power to require as to widow suing in own name in one suit and as administratrix in another, § 175, pp. 307-311 stage of proceedings at which should be sustained, § 172, pp. 300-302. Roberts Liabilities— 32 498 INDEX PBACTICE— Cont. Election — Cont. when motion to require should be sustained before trial, § 174, pp. 304-307. Employers' Liability Act, matters of practice under, §§172-179, pp. 300-319. Evidence under Federal Act, §§ 164-171, pp. 288-299. Jury of less than twelve, effect of state laws permitting verdict by, § 176, pp. 312-314. Parties, see Parties. Pleadings in actions under Employers' Liability Act, §§ 148-163, pp. 264-287. EeB adjudicata, when judgment in action under state law is, § 177, pp. 314-317. State laws, controlling effect of in action* under Federal Act, §§ 9, 18, pp. 16, 35. PEESUMPTIO'NS— Damages for death of husband and father, § 57, pp. 151, 152. Intrastate commerce, presumptions as to employment in, § 47, p. 116. Negligence, when state laws, as to inapplicable, § 18, p. 38. PRIVATE CAES— Switching crew coupling switch engine to, as employed in inter- state commerce, § 47, p. 115. PEOXIMATE CAUSE— Hours of Service Act, necessity for showing proximate caiue of ■ injury, § 13, p. 23. Liability for injuries resulting from concurrent causes, § 15, p. 30. Necessity for proving employer's negligence as, § 13, p. 23. Plaintiff's negligence as, where defendant's negligence part of causation, § 16, p. 31. Porter falling through unfloored trestle, failure of conductor to warn as, § 23, p. 53. PULLMAN EMPLOYES— Interstate commerce, employment in, § 43, pp. 108, 109. PUMPING WATEEr- Engineer injured while pumping for use by engines, employment in interstate commerce, § 37, p. 95. Q QUESTIONS FOE JUEY— Assumption of risk, clearance between cars, § 104, pp. 203, 204. fall from pilot of road engine, § 104, p. 204. Interstate commerce, duty to submit to jury in case of doubt, I 51. p. 119. engagement in, § 172, p. 301. INDEX 499 QUESTIONS FOR JURY— Cont. Law governing remedy, propriety of submitting to jury, § 51, p. 119. Negligence, cinder pile near track, § 24, p. 55. coUapse of bridge, § 23, p. 50. failure to illurainate and guard openings in platform, § 24, p. 55. faUure to warn car repairer of impending switching opera- tions, § 24, p. 58. kicking cars without lights or warning, § 24, p. 56. movement of engine in yards without warning or lights, § 24, p. 59. section hand killed while sweeping snow from switches, § 23, p. 52. supplying engine with obsolete lubricator, § 24, p. 57. switch stands near track, § 24, p. 55. use of road engine without footboard in switching, § 23, pp. 50, 51. When case suflicient under state laws should be submitted, § 18, p. 36. R RAILROAD YARDS— See Yards. RAILROADS— Common carriers, extent of use as determining character of, § 54, p. 125. necessity for showing operation as, § 54, p. 123, test for determining character as, § 54, p. 125. Congress, power over, § 5, p. 9. Defined, § 53, p. 122. Express agents as employes of, § 44, p. 109. Interstate commerce, engagement in, § 52, pp. 121, 122. instances showing engagement in, § 63, pp. 133, 134. necessity for alleging engagement in, § 148, p. 256. proof of engagement in, insufficient to show servant simi- larly employed, § 55, p. 126. proof that servant was engaged in sufficient, § 55, pp. 125, 126. sufficiency of allegations as to engagement in, § 155, pj). 271-273. Intrastate carrier, acceptance of shipments to or from foreign state, § 67, p. 136. participating in movement of interstate shipment, § 65, p. 135. Intrastate term inn Is, passage into another state as affecting engagement in interstate commerce, § 63, p. 134. passage through another state en route between, § 66, p. 135. 500 INDEX EAILROADS— Cont. Lessors, liability under Employers ' Liability Act, § 57, pp. 127, 130. when may be joined as defendant, § 146, pp. 252, 253. Logging roads, application of Employers ' Liability Act to, § 54, pp. 124, 125. Passenger railroads, application of Employers' Liability Act to, § 59, pp. 130, 131. Pleading, insufficiency of allegation to show engagement in, § 156, p. 273. Private switches as railroads, § 53, p. 123. Pullman porters as employes of raUroad, § 43, p. 109. Keshipment from point of delivery as changing character of traffic, § 68, p. 138. when does not change interstate character of traffic, § 69, pp. 141-143. Street raUroads as, § 61, pp. 131-133. Vessels, necessity for connection with railroad system, § 60, p. 131. RAILS— Rebound of, when thrown on ground, risk assumed, § 105, p. 209. Unloading new, employes engaged in as employed in interstate commerce, § 46, p. 112. REBUILDING— Employes engaged in as employed in interstate commerce, § 41, pp. 106, 107. RECEIVERS- Employers ' Liability Act, application to, § 56, pp. 126, 127. Proof of appointment and authority, necessity for, § 56, pp. 126, 127. RECORDS— Destruction of record of interstate shipments, § 167, pp. 289, 290. Evidence of interstate shipments, § 167, pp. 289, 290. Nature and character of records showing character of business transacted by railroad, § 168, pp. 292, 293. Statutes governing records of interstate shipments, § 167, pp. 289, 290. Subpoena duces tecum, production by, § 168, p. 293. REGISTERS— Nature and contents showing character of business employed in, § 168, p. 292. RELATIVES— Brothers as dependents, § 80, p. 157. Dependent, necessity for existence, as condition to action, § 74, p. 148. INDEX 501 RELIEF FUNDS— Contracts exempting carrier from liability forbidden, §§ 120-123, pp. 228-231. No bar to suit, § 123, pp. 230, 231. REMOVAL OF CAUSES— Petition failing to state cause of action under Federal Act although intended to be brought thereunder, § 128, pp. 236, 237. Petition stating cause of action under state law in one count and under Federal Act in another, § 127, pp. 234-236, Prohibited, § 126, pp. 233, 234. REPAIRERS— Fall of engine, insufficiency of evidence to show negligence, § 24, p. 60. REPAIRS— Bad order cars on repair tracks, employment in interstate com- merce, § 63, p. 134. Car repairer, injury while working on empty car returning from interstate trip, § 32, p. 80. killed by switching operations while working on car, § 24, p. 58. Cars engaged exclusively in intrastate commerce, § 32, p. 80. Carrying bolts for repair of bridge, injury to employe engaged in, § 30, p. 74. Employes engaged in making as employed in interstate commerce, §41, pp. 106, 107. Iron worker repairing bridge, as engaged in interstate commerce, § 30, p. 74. Switches, employe injured while repairing, § 20, pp. 45, 46. Track laborers repairing track as engaged in interstate commerce, § 46, p. 111. REPAIR SHOPS— Interstate commerce, employes carrying coal to heat as engaged in, § 45, p. 110. REPORTS— House Judiciary Committee on Act of 1908, App. pp. 328-341. Nature and contents of, showing character of business engaged in, § 168, p. 292. Senate Judiciary Committee on amendments of 1910, App. pp. 348-373. RES ADJUDICATA— Action under state law, when is, § 177, pp. 314-317. RES IPSA LOQUITUR— Application of doctrine of, § 22, pp. 48-50. RESHIPMENTS— Interstate commerce, effect as changing character of interstate shipment, § 68, p. 138. 502 INDEIX EESHIPMENTS— Cont. Interstate commerce — Cont. when does not change interstate character of traffic, § 69, pp. 141-143. REST SHANTY— Hostler injured while walking through yards to, § 39, p. 102. RETURNING FROM WORK— Hand car, section man returning on, § 39, p. 99. Hostler injured while walking through yards to rest shanty, § 39, p. 102. Riding home on train, employment in interstate commerce, § 39, p. 103. Track laborer injured in collision between hand cars, § 23, p. 51. REVIVALr- Personal representative alone entitled to revive suit, § 143, p. 251. ROAD ENGINES— Fall from pilot, when risk not assumed, § 104, p. 204. Switching, use of without footboard as negligence, § 23, pp. 50, 51. ROTARY SNOW-PLOW— Engineer operating, killed by collapse of bridge, § 23, p. 50. ROUNDHOUSE— Destruction by fire, employes engaged in removing debris as engaged in interstate commerce, p. 106n. Engineer stepping into pit from engine cab, § 14, p. 26. Fall of engine, insufficiency of evidence to show negligence, § 24, p. 60. Hostlers as employed in interstate commerce, § 46, pp. 112, 114. Injury while working on engine returned from intrastate trip, §32, p. 81. Repairing engines, engagement in interstate commerce, § 31, p. 80. RULES— Failure to adopt, when result of negligent act of feUow-servant within act, § 19, p. 43. Violation, hostler's helper injured whOe riding on engine in, § 14, p. 29. not assumed risk, § 102, p. 200. regulating speed and signals as negligence on part of employer, § 18, p. 41. RUNNING BOARDS— Caboose cars, order of Interstate Commerce Commission, App. p. 425. Locomotives, specifications regarding, order of Interstate Com- merce Commission, App. p. 444. Order of Interstate Commerce Commission regarding, App. p. 401. INDEX 503 RUNNING BOAEDS— Cont. Tank ears, order of Interstate Commerce Commission, App. pp. 418, 422. Text of statute governing, App. p. 391. S SAFETY APPLIANCE ACTS— Amendment of 1910, App. pp. 390-393. of 1893, text of, App. pp. 388-390. Construction with Interstate Commerce Act, § 53, p. 123. Couplers defective, insufficiency of evidence to show, § 24, p. 64. Decisions construing, application to Employers' Liability Act, § 50, pp. 117-119. Equipment of cars, duty as to, irrespective of character of com- merce engaged in, § 50, p. 118. Negligence, effect as abrogating common-law liability for, § 21, p. 47. necessity for proving in case of violation of, § 21, pp. 46, 47. Pleading, sufficiency of allegations, § 148, p. 256. Text of, App. pp. 386-388. Violation of, sufficiency of evidence to show, § 24, p. 58. SAFETY APPLIANCES— Order of Interstate Commerce Commission, extension of time for compliance with, App. pp. 447-449. fixing number, dimensions, location and manner of applica- tion of certain, App. pp. 397-446. Power of Interstate Commerce Commission to designate, App. p. 391. SAli'ETY RAILINGS— Tank cars, order of Interstate Commerce Commission, App. pp. 415, 420, 423. SALOONS— Injury to employe while returning from, p. 25n. SCOPE OF EMPLOYMENT— Employe injured whUe violating rule, § 14, p. 29. Negligent fellow- servant, necessity that act be committed within, § 14, p. 24. Section foreman giving warning of collision as acting within, § 14, p. 28. SCUFFLING— Liability for injury to fellow-servant caused by, § 14, p. 25. SECTION FOREMAN— Injury by interstate train, § 36, p. 94. Section man injured on jumping from train in response to warning of, § 14, p. 28. Strain caused by moving car from track to avoid collision, § 24, p. 62. 504 INDEX SECTIONMEN— Ballasting railroad track, employment in interstate commerce, § 36, p. 93. Driving spikes on track used by interstate and intrastate trains^ §36, pp. 93, 94. Employers ' Liability Act, application to, § 36, pp. 93, 94. Injury on jumping from train on warning of foreman, § 14, p. 28. Interstate commerce, method of proving engagement in, § 169, p. 293. Eebound of rail thrown on ground, risk assumed, § 105, p. 209. Eeturning from work on handcar, employment in interstate com- merce, § 39, p. 99. Sidetrack, injured while placing rail in, § 36, p. 93. Slipping of tie while being handled, when result of accident, § 24, p. 62. Sweeping snow from switches, liability for death of, §§ 23, 36, pp. 52, 93. Tricycle, failure to show negligence in ordering application of brakes, § 24, pp. 64, 65. Warning, failure to give, as to impending danger, § 24, p. 59. SEMAPHOEE POST— Conductor on lessee railroad injured on striking, § 57, p. 129. SHIPMENTS— Character of single shipment as determining character of em- ployment, § 27, p. 68. Interstate, contained in trains operating between intrastate ter- minals, § 28, p. 70. freight shipped to intrastate station destined beyond state as, § 28, p. 69. SHIPPING— Limitation of liability, effect of Employers' Liability Act on power, § 60, p. 131. SHIPS— See Vessels. SIDETRACKS— Intrastate cars, setting out on, where train contained interstate shipments, § 35, p. 91. Placing rail in as interstate commerce, § 36, p. 93. Relaying rails on, employe injured while, § 36, p. 94. SIGNAL MEN— Interstate commerce, method of proving engagement in, § 169, p. 293. SIGNAL SERVICE— Construction of block system, employes engaged in as employed in interstate commerce, § 41, p. 107. Telegraph linemen as employed in interstate commerce, § 45, p. 110. INDEX 505 SIGNALS— Section hand sweeping snow from switches killed by train oper- ated without, § 23, p. 52. Violation of rules as to, as negligence on part of employer, § 18, p. 41. SILL STEPS— Locomotives used in road service, order of Interstate Commerce Commission, App. p. 438. Order of Interstate Commerce Commission regarding, App. pp. 401, 402. Passenger cars, order of Interstate Commerce Commission, App. pp. 435, 437. Switch engines, order of Interstate Commerce Commission, App. p. 441. Tank cars, order of Interstate Commerce Commission, App. p. 422. Text of statute governing, App. p. 391. SISTERS— Death of brother, dependency under Act, § 80, pp. 154-158. SLEEPING— Employment in interstate commerce while asleep in bunk car, § 39, pp. 99, 100. Engineer falling into roundhouse pit after sleeping in engine, § 14, p. 26. SLEEPING CAR COMPANIES— Interstate commerce, employes as engaged in, § 43, pp. 108, 109. SLEEPING ON TRACK— Brakeman injured whUe, § 18, p. 40. SNOW— Risk of injury while cleaning from tracks not assumed, § 104, p. 201. Section hand killed whUe sweeping from switches, § 23, p. 52. Sweeping from switches as interstate commerce, § 36, p. 93. SNOWPLOW— Engineer operating, killed by coUapse of bridge, § 23, p. 50. SPECIAL AGENTS— Assumption of risk, stepping between cars of train in terminal yard, § 105, p. 209. SPEED— Assurance of fellow-servant as to, when not negligence, § 24, p. 61. Section hand sweeping snow from switches kiUed by train run- ning at high speed, § 23, p. 52. Sudden reduction of speed of handcar as negligence, § 23, p. 51. Violation of rules as to, as negligence on part of employer, § 18, p. 41. 506 INDEX SPIKES— Section man injured while driving, on track used by intra and interstate trains, § 36, pp. 93, 94. SPOKTIVE ACT OF SERVANT— Liability for injury to fellow-servant, § 14, p. 25. STARE DECISIS— Damages, controlling effect of federal decisions, § 86, p. 165. Decisions of federal courts as controlling in determining negli- gence, § 18, p. 34. Effect of decisions of state court that federal question wa« suf- ficiently raised on writ of error by U. S. Supreme Court, § 134, pp. 242, 243. STATE COURTS— Actions, right to bring in, § 125, p. 233. Assumption of risk, effect of decisions as to in determining appli- cation of Federal Act, § 98, p. 193. Decisions of federal courts as controlling in determining negli- gence, § 18, p. 34. Effect of ruling of, that federal question was sufficiently raised on writ of error by U. S. Supreme Court, § 134, pp. 242, 243. Evidence, question as to sufficiency of as sustaining writ of error by U. S. Supreme Court, § 132, pp. 239-241. Federal question, insufficiency of petition as raising, § 137, p. 245. how may be raised to support writ of error by United States Supreme Court, § 135, pp. 243, 244. not raised by submission to jury under state law at request of plaintiff in error, § 136, p. 244. on error to state court, sufficiency of record to present, § 131, p. 239. Incidental questions not reviewable on error by United States Supreme Court, § 133, p. 241. Jurisdiction in general, §§ 124-138, pp. 232-246. of United States Supreme courts to review judgment of, § 130, p. 238. under Federal Act, rule prior to amendment, p. lln. Removal of cause to federal court prohibited, § 126, pp. 233, 234. where petition fails to state cause of action under federal act, § 128, pp. 236, 237. where petition states cause of action under state law in one count and under Federal Act in another, § 127, pp. 234- 236. Res ipsa loquitur, application of doctrine of, § 22, p. 48. STATE LAWS— Actions under, proceeding simultaneously with action under Fed- eral Act, § 175, pp. 307-311. INDEX 507 STATE LAWS— Cont. Assumption of risk, application under Federal Act, § 98, pp. 193-197. inapplicability of, § 100, pp. 198, 199. Cause of action under, recovery permitted under Federal Act, when, § 150, p. 260. Contributory negligence, necessity for pleading determined by state law, § 119, pp. 226, 227. Defect in wheels creating prima facie case, inapplicability of, § 24, p. 60. Demurrer to evidence, inapplicable in ruling on, § 166, p. 289. Distribution, superseded, § 94, pp. 188, 189. Effect of Federal Employers ' Liability Act on, § 7, p. 11. Election, law governing motions to require, § 173, pp. 302-304. Evidence, controlling effect of rules governing, § 164, p. 288. Illegitimates, application of acts governing, § 92, pp. 180, 181. Jury of less than twelve, effect of state law permitting verdict by, § 176, pp. 312-314. Pleading, controlling effect as to sufficiency of, § 154, p. 271. Practice, controlling effect of in actions under Federal Act, § 9, p. 16. Safety provisions, application in determining negligence of em- ployer, § 12, p. 22. STATIONAEY ENGINEEE— Pumping water for interstate and intrastate trains, employment in interstate commerce, § 37, p. 95. STATIONS— Boxes on platform, steps on baggage car torn off by striking, § 23, p. 52. Engineer pumping water for use by engines, employment in interstate commerce, § 37, p. 95. Gardeners caring for grounds as employed in interstate com- merce, § 45, p. 109. STATUTE OF LIMITATIONS— See Limitation of Actions. STATUTES— State, application in determining negligence of employer, § 12, p. 22. STEAM ESCAPING— Negligence, insufficiency of evidence to show, § 24, p. 63. STEPS— Brake steps, order of Interstate Commerce Commission, App. pp. 400, 401. Caboose cars, order of Interstate Commerce Commission, App. p. 428. Flat cars, order of Interstate Commerce Commission, App. pp. 414, 415. 508 INDEX STEPS— Cont. Headlights, order of Interstate Commerce Commission, App. p. 443. specifications regarding, App. pp. 445, 446. Hopper and gondala cars, on, App. pp. 407-413. Locomotives used in road service, order of Interstate Commerce Commission, App. p. 438. Passenger cars, order of Interstate Commerce Commission, App. pp. 435, 437. Platform steps on caboose cars, order of Interstate Commerce Commission, App. p. 427. Sill, order of Interstate Commerce Commission regarding, App. pp. 401, 402. Switch engines, order of Interstate Commerce Commission, App. p. 441. Tank cars, order of Interstate Commerce Commission, App. pp. 415, 418, 421. STRAINS— Moving handcar from track to avoid collision, § 24, p. 62. STREET RAILROADS— Employers' Liability Act, application to, §61, pp. 131-133. STREETS— Employe injured by timber thrown from train while walking on, § 39, p. 103. STUDENT BRAKEMEN— Existence of relation of master and servant though no compen- sation paid, § 14, p. 28. STUDENT FIREMEN— Injury while boarding train, insufficiency of evidence to show negligence, § 24, p. 61. SUBPOENA DUCES TECUM— Production of records showing engagement in interstate com- merce, § 168, p. 293. SUNDAY— Track laborer injured while proceeding to get mail for camp on, § 39, pp. 102, 103. SURVIVAL OF ACTION— Existence of dependent relatives as condition to, § 74, p. 148. Instantaneous death, right to recover, § 85, pp. 163, 164. Negligence, survival as depending upon death being caused by, § 90, pp. 176, 177. Who may revive suit commenced by employe in lifetime, § 143, p. 251. SWITCH ENGINE— Footboard, injury caused by defective, § 38, p. 98. INDEX 509 SWITCH STANDS— Employe striking while riding on side of car, § 24, p. 55. SWITCHES— Employe injured, placing cover on, by intrastate train, § 20, p. 45. relaying rails on, § 36, p. 94. repairing, right of recovery, § 20, p. 46. Interstate commerce, employe working on as engaged in, § 46, p. 112. Railroads, private switch as, § 53, p. 123. Snow, section hand killed while sweeping from, § 23, p. 52. Striking imlighted, risk not assumed, § 104, p. 206. Student brakeman aiding in throwing, as employe, § 14, p. 28. SWITCHING— Brakeman injured by striking cars on adjoining track, § 24, p. 56. Firemen, when not engaged in interstate commerce, § 33, pp. 84-86. SWITCHING CEEWS— Coal, employes engaged in switching into chutes of railroad com- pany, § 37, p. 96. Evidence, sufficiency to show engagement in interstate commerce, p. 295n. Fall from pilot of road engine, when risk not assumed, § 104, p. 204. Going to work, injured while, § 33, p. 83. Interstate commerce, alternate engagement in interstate and intrastate commerce as affecting application of Act, § 29, pp. 71, 72. coupling switch engine to intrastate private car, § 47, p. 115. employment in while moving intrastate train, § 47, p. 116, handling of cars destined beyond state, § 34, p. 86. movement of oil for purpose of fuel as interstate commerce, § 34, p. 86. test for determining engagement in, § 33, pp. 83-86. when considered as engaged in, § 34, pp. 86-88. Intrastate cars, moving into or out of interstate trains, § 35, pp. 88-92. Making up interstate train, injury by stepping on defective footboard, § 38, p. 98. Movement of empty passenger cars on reaching terminals after having been engaged in intrastate commerce, § 29, p. 72. Movement of intrastate cars into or out of interstate trains, § 35, pp. 88-92. Oil, injury while transferring from car for use on engines, § 37, p. 97. Pleading, sufficiency of petition to show employment in, § 34, p. 87. 510 INDEX SWITCHING CREWS— Cont. Poling car, liability for death, § 24, pp. 56, 57. Road engine, use of instead of switch engine with footboard as negligence, § 23, pp. 50, 51. Walking on track, struck by slowly moving engine, § 24, p. 55. TANK CARS— '^ Appliances on, order of Interstate Commerce Commission regard- ing, App. pp. 415-424. TAP LINES— Common carriers, as, § 54, pp. 124, 125. TEAMSTER— Injury while engaged in constructing cut-off, employment ip interstate commerce, § 40, p. 104. TELEGRAPH LINEMEN— Interstate commerce, employment in, § 45, p. 110. TENDERS— Boiler Inspection Act, application to, App. p. 450. Type of, specification regarding, order of Interstate Commerce Commission, App. p. 444. TERMINALS— Cars, effect where some of cars in train operated between intra- state terminals are destined beyond state, § 28, p. 69. Injury to brakeman returning from saloon, p. 25n. Injury to engineer while testing engines between intrastate ter- minals, § 37, p. 97. Intrastate, railroads passing into foreign state between, as en- gaged in interstate commerce, § 63, p. 134. trains operating between containing interstate shipments, § 28, p. 70. Movement of empty passenger cars in, after use in intrastate commerce, § 29, p. 72. Yard clerks, injured while cheeking train in, employment in interstate commerce, § 42, pp. 107, 108. TERRITORIES— Application of Employers ' Liability Act to, § 70, p. 144. TESTS— Engineer injured while testing engine between intrastate ter- minals, § 37, p. 97. TICKET RECORDS— Custodian of, § 168, p. 291. TIME OF INJURY— Employes going to or returning from work, § 39, pp. 99-103. Engineer killed before beginning of working hours, § 14, p. 26, Liability where disconnected with employment, § 14, p. 24. Returning from work, track laborer injured in collision between handcars, § 23, p. 51. INDEX 511 TOBACCO— Employe loading on train as engaged in interstate commerce, § 37, p. 97. TRACK LABORERS— Ballasting railroad track, employment in interstate commerce, § 36, p. 93. Collision between handcars, sudden reduction of speed, § 23, p. 51. Employers' Liability Act, application to, §36, pp. 93, 94. Injury, cars proceeding without warning, risk of injury not as- sumed, §104, pp. 205, 206. sleeping in bunk car, § 14, p. 26. switch engine approaching without warning, § 24, p. 57. Interstate commerce, employment in repairing track as involving, § 46, p. 111. sleeping in bunk car, § 39, pp. 99, 100. Mail, injury while proceeding to get mail for camp, § 39, pp. 102, 103. Rebound of rail thrown on ground, risk assumed, § 105, p. 209. Snow, risk of injury while cleaning from track not assumed, § 104, p. 201. TRACK LAYER— Injury to, § 36, pp. 93, 94. TRACKS— Intra and interstate trains using, injury to section man, § 36, pp. 93, 94. Repairing, employes unloading new rails for purpose of, as en- gaged in interstate commerce, § 46, p. 112. TRACK WALKERS— Intrastate train injuring, while on track used for both classes of commerce, § 36, p. 93. Suddenly stepping on track, insufficiency of evidence to show negligence, § 24, pp. 60, 61. TRAIN BREAKING IN TWO— Brakeman sent to signal forward part, injured while sleeping on track, § 18, p. 40. TRAIN ORDERS— Brakeman injured while boarding moving train on receiving, failure to adopt rules, § 19, p. 43. TRAIN SHEETS— Contents and character of, § 168, pp. 291, 292. TRESTLES— Burning, employe killed by falling of engine through, § 22, p. 49. Porter injured by falling through, § 23, p. 53, TRIAL— Demurrer to evidence, state laws inapplicable in ruling on, § 166, p. 289. 512 INDEX TEIAL— Cont. Directed verdict, ruling on submission of as presenting federal question reviewable in U. S. Supreme Court, § 132, p. 240. Election, when motion to require should be sustained before trial, § 174, pp. 304-307. Jury of less than twelve, effect of state laws permitting verdict by, § 176, pp. 312-314. Questions for jury, engagement in interstate commerce, § 172, p. 301. Submission to jury under state law where petition sets cause of action under Federal Act, § 149, p. 257. Taking case from jury, sufficiency of evidence as determined by rulings of state or federal courts, § 18, p. 36. TEICYCLES— Brakes, insufficiency of evidence to show negligence in ordering application of, § 24, pp. 64, 65. Defective flange, assumed risk, § 98, pp. 195, 196, TUNNELS— Employes engaged in constructing as employed in interstate commerce, § 40, p. 104. Openings in platform in, failure to illuminate and guard, § 24, p. 55. U UNCOVERED PIT— Fall into, risk assumed, § 105, pp. 210, 211. UNFLOORED TRESTLE— Porter falling through, failure of conductor to warn, § 23, p, 53. UNITED STATES— Supremacy of laws of, § 7, p. 13. UNITED STATES SUPREME COURT— Effect of ruling of state court that federal question was suffi- ciently raised, § 134, pp. 242, 243. Excessiveness of verdict not reviewable, § 138, p. 245. Federal questions, how may be raised to support writ of error to state court, § 135, pp. 243, 244. insufficiency of petition as raising, § 137, p. 245. not raised by submission to jury under state law at request of plaintiff in error, § 136, p. 244. on error to state court, sufficiency of record to present, § 131, p. 239. Incidental questions not reviewable on error to state court, § 133, p. 241. Jurisdiction to review judgment of state court, § 130, p. 238. Question as to sufficiency of evidence to show liability as sup- porting writ of error by, § 132, pp. 239-241. INDEX 513 UNLOADING FEEIGHT— Student brakeman aiding in, as employe, § 14, p. 28. UNLOADING RAILS— Employes engaged in for purpose of repair, as employed in inter- state commerce, § 46, p. 112. V VAEIANCE— Petition under state law and evidence showing application of Federal Act, § 160, pp. 277-280. VERDICTS— Jury of less than twelve, effect of state laws permitting verdict by, § 176, pp. 312-314. VESSELS— Ferry boats, application of Act to, § 60, p. 131. Limitation of liability, power of ship owners under Employers' Liability Act, § 60, p. 131. power to enforce in admiralty, § 60, p. 131. Railroad system, necessity for connection with, § 60, p. 131. VOLUNTEERS- Hostler's helper injured while riding on pilot in violation of rules, § 14, p. 29. W WAIVER— Want of capacity in widow to sue not waivable, § 141, pp. 248, 249. WARNING— Failure to warn employe on track of danger, § 24, p. 59. Porter falling through bridge, failure of conductor to warn, § 23, p. 53. Sudden reduction of speed of car without, § 23, p. 51. Track laborer kUled by switch engine approaching without warning, § 24, p. 57. WATCHMEN— Interstate commerce, emplojonent on dead locomotive as engage- ment in interstate commerce, § 45, p. 110. sufficiency of evidence to show engagement in, § 171, p. 298. WATER— Employes assisting in movement of, as engaged in interstate commerce, § 37, p. 96. Engineer injured while pumping for interstate trains and intra- state trains, § 37, p. 95. WATER GAUGE— Assumed risk, absence of glass, § 105, p. 209. approved form of instructions, § 99, p. 197. Instructions, when erroneous as to duty to guard, § 12, p. 21. Eoberts Liabilities— 33 514 INDEX WAY BILI^ Nature and contents of, § 168, pp. 292, 293. WHEEL EEPOBTS— Custodian of, § 168, p. 291. How required to be kept, § 168, p. 292. Nature and contents of, § 168, p. 292. WHEELS— Defective flange, assumption of risk, § 98, pp. 195, 196. WIDOW— Action by, in own name in one suit and as administratrix in another, election, § 175, pp. 307-311. Right to sue for death of husband, § 140, p. 247. Want of legal capacity to sue not waivable, § 141, pp. 248, 249. WILFUL ACTS— Inapplicability of statute to, § 25, p. 65. WITNESSES— Competency, law governing, § 165, p. 169. WOEKING HOURS— Engineer killed before beginning of, § 14, p. 26. Injury to employe while sleeping in bunk car, § 14, p. 25. WRECKING TRAIN- Boilermaker injured while repairing derrick engine on, § 32, pp. 82, 83. Boilermakers repairing derrick boiler as engaged in interstate commerce, § 46, p. 111. WRESTLING— Liability for injury to fellow-servant, caused by, § 14, p. 25. T YARD CLERKS— Interstate commerce, employment in, § 42, pp. 107, 108. YARDS— Brakeman injured in after returning from saloon, p. 25n. Cinder pile near track, maintenance as negligence, § 24, p. 55. Fall into "drop pit," risk assumed, § 105, pp. 210, 211. Kicking cars in, absence of lights or warning, § 24, p. 56. Rest shanty, hostler injured while walking through yards to, § 39, p. 102. Switchman killed while walking on track, § 24, p. 55. 1„\W LIBRARY wn^l,UM.'.OFCAUFOK^: LOS ANGiiLBS jiSONOLiTH Poim^Km oimm coivipany SOUTHERN REGIONAL LIBRARY FACILITY AA 000 785 538