in the Dakotas and Montana, attempts to define generally the employer's liability.1

SEC. 2. FELLOW-SERVANT DOCTRINE.-The statutes extending the strict provisions of the common law on this subject are numerous and varied. They may be roughly divided into three groups: Those which do away with the fellow-servant doctrine entirely, making the employer liable in all cases of accident, whether caused by fellow-servants or not, unless primarily caused by negligence, or by contributory negligence, of the person injured (Wis. 1893, 220; Minn. 2701; Kans. 1251; Iowa, 1307; Mont. Civ. C. 905; N. Dak. 1899, 129; Mo. 1897, p. 96; N. C. law of Feb. 23, 1897; N. Mex. 1893, 28; Ga. 3036; Fla. May 4, 1891);1 those which attempt to define who are fellow-servants, damages sustained by the party whom such laborer or servant was induced to leave;

* * *

SEC. 3758. When any laborer or servant, having contracted as provided in the preceding section, is afterwards found in the service or employment of another before the termination of such contract, that fact is prima facie evidence that such person is guilty of a violation of that section, if he fail and refuse to forthwith discharge such laborer or servant, after being notified and informed of such former contract or employment.

SEC. 3761. Any person, who employs any immigrant, or otherwise entices him from his employer, in violation of the contract of such immigrant, must, on conviction, be fined in a sum not less than the amount of wages for the unexpired term of the contract, and may be imprisoned in the county jail, or sentenced to hard labor for the county, at the discretion of the jury, for not more than three months.

1 Cal. Civ. C., 1969–1971; Mont. Civ. C., 2660–2; N. Dak. Civ. C., 4095–4097; S. Dak. Civ. C., 3752-3754:

An employer must indemnify his employee, except as prescribed in the next section, for all that he necessarily expends or loses in direct consequence of the discharge of his duties as such, or of his obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying such directions, believed them to be unlawful.

An employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employee.

An employer must in all cases indemnify his employees for losses caused by the former's want of ordinary care.

1Wisconsin (1893, 220):

SEC. 1. Every railroad or railway company operating any railroad or railway, the line of which shall be in whole or in part within this State, shall be liable for all damages sustained within this State by any employee of such company, without contributory negligence on his part; first, when such injury is caused by any defect in any locomotive, engine, car, rail, track, machinery or appliance required by said company to be used by its employees in and about the business of such employment, when such defect could have been discovered by such company by reasonable and proper care, tests or inspection, and proof of such defect shall be presumptive evidence of knowledge thereof on the part of such company; second, or while any such employee is so engaged in operating, running, riding upon or switching, passenger or freight or other trains, engines or cars, and while engaged in the performance of his duty as such employee, and which such injury shall have been caused by the carelessness or negligence of any other employee, officer or agent of such company in the discharge of, or for failure to discharge his duties as such.

SEC. 3. No action or cause of action now existing shall be affected by this act. SEC. 4. No contract, receipt, rule or regulation between any employee and a railroad company, shall exempt such corporation from the full liability imposed by this act. Minnesota (§ 2701):

Every railroad corporation owning or operating a railroad in this State shall be liable for all damages sustained by any agent or servant thereof by reason of the negligence of any other agent or servant thereof, without contributory negligence on his part, when sustained within this State, and no contract, rule, or regulation between such corporation and any agent or servant shall impair or diminish such

by setting them off into classes (S. C. Con. 9, 15; Colo. 1893, 77, 1;

liability: Provided, That nothing in this act shall be so construed as to render any railroad company liable for damages sustained by any employee, agent, or servant while engaged in the construction of a new road, or any part thereof, not open to public travel or use.

Kansas (G. S. 1251):

Every railroad company organized or doing business in this State shall be liable for all damages done to any employee of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employees to any person sustaining such damage.

Iowa (§ 1307):

Every corporation operating a railway shall be liable for all damages sustained by any person, including employees of such corporation, in consequence of the neglect of agents, or by any mismanagement of the engineers or other employees of the corporation, and in consequence of the wilful wrongs, whether of commission or omission of such agents, engineers, or other employees, when such wrongs are in any manner connected with the use and operation of any railway, on or about which they shall be employed, and no contract which restricts such liability shall be legal or binding.

Montana (Civ. C. § 905):

In every case the liability of a corporation to a servant or employee acting under the orders of his superior, shall be the same in cases of injury sustained by default or wrongful act of his superior, or to an employee not appointed or controlled by him as if such servant or employee were a passenger.

North Dakota (1899, 129):

Every railroad corporation owning or operating a railroad in this State shall be liable for all damages sustained by any agent or servant thereof while engaged in switching or in the operation of trains by reason of the negligence of any other agent or servant thereof, without contributory negligence on his part when sustained within this State, and no contract, rule or regulation between such corporation and any agent or servant shall impair or diminish such liability. In actions brought under the provisions of this act, if the jury find for the plaintiff they shall specify in their verdict the name or names of the employee or employees guilty of the negligent act complained of.

Missouri (1897, p. 96):

SEC. 1. Every railroad corporation owning or operating a railroad in this State shall be liable for all damages sustained by any agent or servant thereof while engaged in the work of operating such railroad by reason of the negligence of any other agent or servant thereof: Provided, That it may be shown in defense that the person injured was guilty of negligence contributing as a proximate cause to produce the injury.

SEC. 2. All persons engaged in the service of any such railroad corporation doing business in this State, who are intrusted by such corporation with the authority of superintendence, control or command of other persons in the employ or service of such corporation, or with the authority to direct any other servant in the performance of any duty of such servant, or with the duty of inspection or other duty owing by the master to the servant, are vice-principals of such corporation, and are not fellow-servants with such employees.

SEC. 3. All persons who are engaged in the common service of such railroad corporation, and who while so engaged, are working together at the same time and place, to a common purpose of same grade, neither of such persons being intrusted by such corporation with any superintendence or control over their fellow employees, are fellow-servants with each other: Provided, That nothing herein contained shall be so construed as to make any agent or servant of such corporation in the service of such corporation a fellow-servant with any other agent or servant of such corporation engaged in any other department or service of such corporation.

SEC. 4. No contract made between any railroad corporation and any of its agents or servants, based upon the contingency of the injury or death of any agent or servant, limiting the liability of such railroad corporation for any damages under the provisions of this act, shall be valid or binding, but all such contracts or agreements shall be null and void.

North Carolina (Feb. 23, 1897):

SEC. 1. Any servant or employee of any railroad company operating in this State,

2

Tex. 1897, Spec., 6; Miss. 1898, 87; Utah 1896, 24); and those which

who shall suffer injury to his person, or the personal representative of any such servant or employee who shall have suffered death in the course of his services or employment with said company by the negligence, carelessness or incompetency of any other servant, employee or agent of the company, or by any defect in the machinery, ways or appliances of the company, shall be entitled to maintain an action against such company.

SEC. 2. Any contract or agreement, expressed or implied, made by any employee of said company to waive the benefit of the aforesaid section shall be null and void. New Mexico (1893, 28, § 1):

Every corporation operating a railway in this Territory shall be liable in a sum sufficient to compensate such employee for all damages sustained by any employee of such corporation, the person injured or damaged being without fault on his or her part, occurring or sustained in consequence of any mismanagement, carelessness, neglect, default or wrongful act of any agent or employee of such corporation, while in the exercise of their several duties, when such mismanagement, carelessness, neglect, default or wrongful act of such employee or agent could have been avoided by such corporation through the exercise of reasonable care or diligence in the selection of competent employees, or agents, or by not overworking said employees or requiring or allowing them to work an unusual or unreasonable number of hours; and any contract restricting such liability shall be deemed to be contrary to the public policy of this Territory and therefore void.

Georgia:

SEC. 2083. Railroad companies are common carriers, and liable as such. As such companies necessarily have many employees who can not possibly control those who should exercise care and diligence in the running of trains, such companies shall be liable to such employees as to passengers for injuries received from the want of such care and diligence.

SEC. 3036. If the person injured is himself an employee of the company, and the damage was caused by another employee, and without fault or negligence on the part of the person injured, his employment by the company shall be no bar to the recovery [of damages].

Florida (May 4, 1891, § 3):

If any person is injured by a railroad company by the running of the locomotives, or cars, or other machinery of such company, he being at the time of such injury an employee of the company, and the damage was caused by negligence of another employee, and without fault or negligence on the part of the person injured, his employment by the company shall be no bar to a recovery. No contract which restricts such liability shall be legal or binding.

2 South Carolina (Constitution, Art. 9, § 15):

Every employee of any railroad corporation shall have the same rights and remedies for any injury suffered by him from the acts or omissions of said corporation or its employees as are allowed by law to other persons not employees, when the injury results from the negligence of a superior agent or officer, or of a person having a right to control or direct the services of a party injured, and also when the injury results from the negligence of a fellow-servant engaged in another department of labor from that of the party injured, or of a fellow-servant on another train of cars, or one engaged about a different piece of work. Knowledge by any employee injured of the defective or unsafe character or condition of any machinery, ways or appliances shall be no defense to an action for injury caused thereby, except as to conductors or engineers in charge of dangerous or unsafe cars or engines voluntarily operated by them. When death ensues from any injury to employees, the legal or personal representatives of the person injured shall have the same right and remedies as are allowed by law to such representatives of other persons. Any contract or agreement, expressed or implied, made by any employee to waive the benefit of this section shall be null and void; and this section shall not be construed to deprive any employee of a corporation, or his legal or personal representative, of any remedy or right that he now has by the law of the land. The general assembly may extend the remedies herein provided for to any other class of employees.

Colorado (1893, 77):

SEC. 1. Where, after the passage of this act, personal injury is caused to an

merely content themselves with saying that no person shall be deemed

employee, who is himself in the exercise of due care and diligence at the time: (1) By reason of any defect in the condition of the ways, works, or machinery connected with or used in the business of the employer, which arose from or had not been discovered or remedied owing to the negligence of the employer, or of any person in the service of the employer, and intrusted by him with the duty of seeing that the ways, works, and machinery were in proper condition; or (2) By reason of the negligence of any person in the service of the employer, intrusted with or exercising superintendence whose sole or principal duty is that of superintendence. (3) By reason of the negligence of any person in the service of the employer who has the charge or control of any switch, signal, locomotive engine or train upon a railroad, the employee, or in case the injury results in death the parties entitled by law to sue and recover for such damages shall have the same right of compensation and remedy against the employer, as if the employee had not been an employee of or in the service of the employer or engaged in his or its works.

SEC. 2. The amount of compensation recoverable under this act, in case of a personal injury resulting solely from the negligence of a co-employee, shall not exceed the sum of five thousand dollars. No action for the recovery of compensation for injury or death under this act shall be maintained unless written notice of the time, place and cause of the injury is given to the employer within sixty days, and the action is commenced within two years from the occurrence of the accident causing the injury or death. But no notice given under the provisions of this section shall be deemed invalid or insufficient solely by reason of any inaccuracy in stating the time, place or cause of injury: Provided, It is shown that there was no intention to mislead, and that the party entitled to notice was not in fact misled thereby.

SEC. 3. Whenever an employee enters into a contract, either written or verbal, with an independent contractor to do part of such employer's work, or whenever such contractor enters into a contract with a subcontractor to do all or a part of the work comprised in such contract or contracts with the employer, such contract or subcontract shall not bar the liability of the empolyer for injuries to the employees of such contractor or subcontractor, by reason of any defect in the condition of the ways, works, machinery or plant, if they are the property of the employer or furnished by him, and if such defect arose or had not been discovered or remedied through the negligence of the employer or of some person intrusted by him with the duty of seeing that they were in proper condition.

SEC. 4. An employee or those entitled by law to sue and recover, under the provisions of this act, shall not be entitled under this act to any right of compensation or remedy against his employer in any case where such employee knew of the defect or negligence which caused the injury, and failed within a reasonable time to give or cause to be given information thereof to the employer or to some person superior to himself in the service of his employer, who had intrusted to him some general superintendence.

SEC. 5. If the injury sustained by the employee is clearly the result of the negligence, carelessness or misconduct of a co-employee the co-employee shall be equally liable under the provisions of this act, with the employer, and may be made a party defendant in all actions brought to recover damages for such injury. Upon the trial of such action, the court may submit to and require the jury to find a special verdict upon the question as to w[h]ether the employer or his vice-principal was or was not guilty of negligence proximately causing the injury complained of; or w[h]ether such injury resulted solely from the negligence of the co-employee, and in case the jury by their special verdict find that the injury was solely the result of the negligence of the employer or vice-principal, then and in that case the jury shall assess the full amount of plaintiff's damages against the employer, and the suit shall be dismissed as against the employee; but in case the jury by their special verdict find that the injury resulted solely from the negligence of the co-employee, the jury may assess damages both against the employer and employee.

Utah (1896, 24):

SECTION 1. All persons engaged in the service of any person, firm or corporation, foreign or domestic, doing business in this State, who are entrusted by such person, firm or corporation as employer with the authority of superintendence, control or command of other persons in the employ or service of such employer, or with the authority to direct any other employee in the performance of any duties of such employee are vice-principals of such employer and are not fellow-servants.

SEC. 2. All persons who are engaged in the service of such employer, and who, while so engaged, are working together at the same time and place to a common purpose,

a fellow-servant who is in a position to give orders to the person of the same grade of service, neither of such persons being entrusted by such employer with any superintendence or control over his fellow employees, are fellow-servants with each other: Provided, That nothing herein contained shall be so construed as to make employees of such employer in the service of such employer fellow-servants with other employees engaged in any other department of service of such employer. Employees who do not come within the provisions of this section shall not be considered fellow-servants.

Texas (1897, Spec. Sess. 6):

SECTION 1. Every person, receiver, or corporation operating a railroad or street railway the line of which shall be situated in whole or in part in this State, shall be liable for all damages sustained by any servant or employee thereof while engaged in the work of operating the cars, locomotives, or trains of such person, receiver, or corporation, by reason of the negligence of any other servant or employee of such person, receiver, or corporation, and the fact that such servants or employees were fellow-servants with each other shall not impair or destroy such liability.

SEC. 2. All persons engaged in the service of any person, receiver, or corporation, controlling or operating a railroad or street railway the line of which shall be situated in whole or in part in this State, who are intrusted by such person, receiver, or corporation with the authority of superintendence, control, or command of other servants or employees of such person, receiver, or corporation, or with the authority to direct any other employee in the performance of any duty of such employee, are vice-principals of such person, receiver, or corporation, and are not fellow-servants with their coemployees.

SEC. 3. All persons who are engaged in the common service of such person, receiver, or corporation, controlling or operating a railroad or street railway, and who while so employed are in the same grade of employment and are doing the same character of work or service and are working together at the same time and place and at the same piece of work and to a common purpose, are fellow-servants with each other. Employees who do not come within the provisions of this section shall not be considered fellow-servants.

SEC. 4. No contract made between the employer and employee based upon the contingency of death or injury of the employee and limiting the liability of the employer under this act or fixing damages to be recovered shall be valid or binding.

SEC. 5. Nothing in this act shall be held to impair or diminish the defense of contributory negligence when the injury of the servant or employee is caused proximately by his own contributory negligence.

Mississippi (1898, 87, § 1):

Section 3559 of the Annotated Code of 1892 [shall] be amended so that the same shall read as follows, to wit: Every employee of any corporation shall have the same rights and remedies for an injury suffered by him from the act or omission of the corporation or its employees, as are allowed by other persons not employees where the injury results from the negligence of a superior agent or officer, or of a person having the right to control or direct the services of the party injured; and also when the injury results from the negligence of a fellow-servant engaged in another department of labor from that of the party injured, or of a fellow-servant on another train of cars, or one engaged about a different piece of work. Knowledge by an employee injured of the defective or unsafe character or condition of any machinery, ways or appliances, or of the improper loading of cars, shall not be defense to an action for injury caused thereby, except as to conductors or engineers in charge of dangerous or unsafe cars or engines voluntarily operated by them. When death ensues from an injury to an employee an action may be brought in the name of the widow of such employee for the death of the husband, or by the husb nd for the death of his wife, or by the parent for the death of a child, or in the name of the child for the death of an only parent, for such damages as may be suffered by them respectively by reason of such death, the damages to be for the use of such widow, husband or child, except that in case the widow should have children the damages shall be distributed as personal property of the husband. The legal or personal representative of the person injured shall have the same rights and remedies as are allowed by law to such representatives of other persons. In every such action the jury may give such damages as shall be fair and just with reference to the injury resulting from such death to the persons suing. Any contract or agreement, expressed or implied, made by an employee to waive the benefit of this section shall be null and void; and this section shall not deprive an employee of a corporation or his legal personal representative of any right or remedy that he now has by law.

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