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injured (Mass. 1887, 270; 1894, 499; Ohio 1890, p. 149, 3; Ind. 7083; Ala. 2590; Minn. 1895, 173; Ark. 6248). In view of the importance of the subject, all the statutes are printed below; but there is no part of the labor law where statutes are so often tinkered, and, conse
* Massachusetts (1887, 270; as amended by 1888, 155; 1892, 260; 1893, 359; 1894, 499; 1897, 491):
Sec. 1. Where, after the passage of this act, personal injury is caused to an employee, who is himself in the exercise of due care and diligence at the time:
(1) By reason of any defect in the condition of the ways, works or machinery connected with or used in the business of the 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 entrusted by him with the duty of seeing that the ways, works or machinery were in proper condition;
(2) By reason of the negligence of any person in the service of the employer, entrusted with and exercising superintendence, whose sole or principal duty is that of superintendence, or, in the absence of such superintendent, of any person acting as superintendent with the authority or consent of such employer; or
(3) By reason of the negligence of any person in the service of the employer who has the charge or control of any signal, switch, locomotive engine or train upon a railroad, the employee, or in case the injury results in death the legal representatives of such employee, shall have the same right of compensation and remedies against the employer as if the employee had not been an employee of nor in the service of the employer, nor engaged in its work. And in case such death is not instantaneous, or is preceded by conscious suffering, said legal representatives may in the action brought under this section, except as hereinafter provided, also recover damages for such death. The total damages awarded hereunder, both for said death and said injury, shall not exceed five thousand dollars, and shall be apportioned by the jury between the legal representatives and the persons, if any, entitled under the succeeding section of this act, to bring an action for instantaneous death. If there are no such persons then no damages for such death shall be recovered, and the damages, so far as the same are awarded for said death, shall be assessed with reference to the degree of culpability of the employer herein, or the person for whose negligence he is made liable. A car in use by or in the possession of a railroad company shall be considered a part of the ways, works or machinery of the company using or having the same in possession, within the meaning of this act, whether such car is owned by it or by some other company or person.
One or more cars in motion, whether attached to an engine or not, shall constitute a train within the meaning of this section; and any person who as a part of his duty for the time being, physically controls or directs the movements of a signal, switch or train, shall be deemed to be a person in charge or control of a signal, switch or train within the meaning of this section.
SEC. 2. Where an employee is instantly killed or dies without conscious suffering, as the result of the negligence of an employer, or of the negligence of any person for whose negligence the employer is liable under the provisions of this act, the widow of the deceased, or in case there is no widow, the next of kin, provided that such next of kin were at the time of the death of such employee dependent upon the wages of such employee for support, may maintain an action for damages therefor and may recover in the same manner, to the same extent, as if the death of the deceased had not been instantaneous, ur as if the deceased had consciously suffered.
SEC. 3. Except in actions brought by the personal representatives under section one of this act to recover damages for both the injury and death of an employee, the amount of compensation receivable under this act in cases of personal injury shall not exceed the sum of four thousand dollars. In case of death which follows instantaneously or without conscious suffering, compensation in lieu thereof may be recovered in not less than five hundred and not more than five thousand dollars, to be assessed with reference to the degree of culpability of the employer herein, or the person for whose negligence he is made liable; and no action for the recovery of compensation for injury or death under this act shall be maintained, unless notice of the time, place and cause of the injury is given to the employer within thirty days, and the action is commenced within one year, from the occurrence of the accident causing the injury or death. The notice required by this section shall be in writing, signed by the person injured or by some one in his behalf; but if from physical or mental incapacity it is impossible for the person injured to give the notice within the time provided in said section, he may give the same within ten days after such incapacity is removed, and in case of his death without having given the notice and without having been for
quently, no subject in which a clear, consistent code, that shall be adopted, if possible, by all the States, is more desirable. It must, however, be noted that in many of these States these statutes apply only in the case of railways (Ohio, Wisconsin, Kansas, Iowa, North
ten days at any time after his injury of sufficient capacity to give the notice, his executor or administrator may give such notice within thirty days after his appointment. But no notice given under the provisions of this section shall be deemed to be invalid or insufficient solely by reason of any inaccuracy in stating the time, place or cause of the injury: Provided. It is shown that there was no intention to mislead, and that the party entitled to notice was not in fact misled thereby.
SEC. 4. Whenever an employer enters into a contract, either written or verbal, with an independent contractor to do part of such employer's work, or whenever such contractor enters into a contract with a subcontractor to do all or any part of the work comprised in such contractor's contract with the employer, such contract or subcontract shall not bar the liability of the employer for injuries to the employees of such contractor or subcontractor, by reason of any defect in the condition of the ways, works, machinery or plant, if they are the property of the employer, or furnished by him, and if such defect arose or had not been discovered or remedied, through the negligence of the employer or of some person entrusted by him with the duty of seeing that they were in proper condition.
SEC. 5. An employee or his legal representatives 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 the employer, who had entrusted to him some general superintendence.
SEC. 6. Any employer who shall have contributed to an insurance fund created and maintained for the mutual purpose of indemnifying an employee for personal injuries for which compensation may be recovered under this act, or to any relief society formed under chapter two hundred and forty-four of the acts of the year eighteen hundred and eighty-two, as authorized by chapter one hundred and twenty-five of the acts of the year eighteen hundred and eighty-six, may prove, in mitigation of the damages recoverable by an employee under this act, such proportion of the pecuniary benefit which has been received by such employee from any such fund or society on account of such contribution of said employer, as the contribution of such employer to such fund or society bears to the whole contribution thereto.
SEC. 7. This act shall not apply to injuries caused to domestic servants, or farm laborers, by other fellow employees.
Ohio (1890, p. 149, $3):
In all actions against the railroad company for personal injury to, or death resulting from personal injury, of any person, while in the employ of such company, arising from the negligence of such company or any of its officers or employees, it shall be held in addition to the liability now existing by law, that every person in the employ of such company, actually having power or authority to direct or control any other employee of such company, is not the fellow servant, but superior of such other employee, also that every person in the employ of such company having charge or control of employees in any separate branch or department, shalí be held to be the superior and not fellow servant of employees in any other branch or department who have no power to direct or control in the branch or department in which they are employed.
SEC. 7083. Every railroad or other corporation, except municipal, operating in this State, shall be liable for damages for personal injury suffered by any employee while in its service, the employee so injured being in the exercise of due care and diligence, in the following cases:
First. When such injury is suffered by reason of any defect in the condition of ways, works, plant, tools and machinery connected with or in use in the business of such corporation, when such defect was the result of negligence on the part of the corporation, or some person entrusted by it with the duty of keeping such way, works, plant, tools or machinery in proper condition.
Second. Where such injury resulted from the negligence of any person in the service of such corporation, to whose order or direction the injured employee at the time of the injury was bound to conform, and did conform.
Third. Where such injury resulted from the act or omission of any person done or Dakota, North and South Carolina, Missouri, Georgia, Florida, Texas, New Mexico, Arkansas), a subject which under the interstate commerce clause of the Constitution is within the jurisdiction of Congress. In Indiana, Mississippi, and Montana it applies only to corporations, in Indiana“ other than municipal.”
SEC. 3. DEFECTIVE MACHINERY AND APPLIANCES.--It will be seen
made in obedience to any rule, regulation or by-law of such corporation, or in obedience to the particular instructions given by any person delegated with the authority of the corporation in that behalf.
Fourth. Where such injury was caused by the negligence of any person in the service of such corporation who has charge of any signal, telegraph office, switch yard, shop, roundhouse, locomotive engine or train upon a railway, or where such injury was caused by the negligence of any person, coemploye or fellow-servant engaged in the same common service in any of the several departments of the service of any such corporation, the said person, coemploye or fellow-servant, at the time acting in the place, and performing the duty of the corporation in that behalf
, and the person so injured, obeying or conforming to the order of some superior at the time of such injury, having authority to direct; but nothing herein shall be construed to abridge the liability of the corporation under existing laws.
SEC. 7085. The damages recoverable under this act, shall be commensurate with the injury sustained unless death results from such injury, when, in such case, the action shall survive and be governed in all respects by the law now in force as to such actions: Provided, That where any such person recovers a judgment against a railroad or other corporation, and such corporation takes an appeal, and, pending such appeal, the injured person dies, and the judgment rendered in the court below be thereafter reversed, the right of action of such person shall survive to his legal representative.
SEC. 7086. In case any railroad corporation which owns or operates a line extending into or through the State of Indiana and into or through another or other States, and a person in the employ of such corporation, a citizen of this State, shall be injured as provided in this act, in any other State where such railroad is owned or operated, and a suit for such injury shall be brought in any of the courts of this State, it shall not be competent for such corporation to plead or prove the decisions or statutes of the State where such person shall have been injured as a defense to the action brought in this State.
SEC. 7087. All contracts made by railroads or other corporations with their employees, or rules or regulations adopted by any corporation releasing or relieving it from liability to any employee having a right of action under the provisions of this act are hereby declared null and void. The provisions of this act however shall not apply to any injuries sustained before it takes effect, nor shall it affect in any manner any suit or legal proceedings pending at the time it takes effect.
Minnesota (1895, 173, § 2): Whenever a master or employer delegates to any one the performance of his duties which he, as master or employer does to his servants, or any part or portion of such duties the person so delegated, while so acting for his master or employer shall be considered the vice principle (principal] and representative of the master.
SEC. 6248. All persons engaged in the service of any railway corporations, foreign or domestic, 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 employee, in the performance of any duty of such employee, are vice-principals of such corporation, and are not fellow servants with such employee.
SEC. 6249. All persons who are engaged in the common service of such railway corporations, and who, while so engaged, are working together to a common purpose, of same grade, neither of such persons being intrusted by such corporations with any superintendence or control over their fellow employees, are fellow servants with each other: Provided, Nothing herein contained shall be so construed as to make employees of such corporation in the service of such corporation fellow servants with other employees of such corporation engaged in any other department or service of such corporation. Employees who do not come within the provisions of this section shall not be considered fellow servants.
SEC. 6250. No contract made between the employer and employee based upon the
from the statutes printed in the note to the last section that several of the States have also adopted the statute making employers liable for injury to employees caused by defects and condition of the appliances, machinery, etc. These are Massachusetts, Ohio, Minnesota, Wisconsin, North Carolina, Colorado, Indiana, Alabama, Mississippi, and New Mexico. But in Indiana the law applies only to corporation employers, and in Wisconsin, North Carolina, Ohio, New Mexico only to railways. In other States the burden of proof in such cases is declared to be on the employer to show that the appliances, etc., were in good condition, or proof of such defect, when it could have been discovered, is declared to be presumptive evidence of knowledge thereof on the part of the company (Wisconsin, Ohio). ?
contingency of the injury or death of the employee limiting the liability of the employer under this act, or fixing damages to be recovered, shall be valid and binding.
Alabama (§ 2590) :
When a personal injury is received by a servant or employee in the service or business of the master or employer, the master or employer is liable to answer in damages to such servant or employee, as if he were a stranger, and not engaged in such service or employment, in the cases following:
1. When the injury is caused by reason of any defect in the condition of the ways, works, machinery, or plant connected with, or used in the business of the master or employer.
2. When the injury is caused by reason of the negligence of any person in the service or employment of the master or employer, who has any superintendence intrusted to him, whilst in the exercise of such superintendence.
3. When such injury is caused by reason of the negligence of any person in the service or employment of the master or employer, to whose orders or directions the servant or employee, at the time of the injury, was bound to conform, and did conform, if such injuries resulted from his having so conformed.
4. When such injury is caused by reason of the act or omission of any person in the service or employment of the master or employer, done or made in obedience to the rules and regulations or by-laws of the master or employer, or in obedience to particular instructions given by any person delegated with the authority of the master or employer in that behalf.
5. When such' injury is caused by reason of the negligence of any person in the service or employment of the master or employer who has the charge or control of any signal, points, locomotive, engine, switch, car, or train upon a railway, or of any part of the track of a railway.
But the master or employer is not liable under this section, if the servant or employee knew of the defect or negligence causing the injury, and failed in a reasonable time to give information thereof to the master or employer, or to some person superior to himself engaged in the service or employment of the master or employer, unless he was aware that the master or employer, or such superior already knew of such defect or negligence; nor is the master or employer liable under subdivision one, unless the defect therein mentioned arose from, or had not been discovered or remedied owing to the negligence of the master or employer, or of some person in the service of the master or employer, and intrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition.
1 For these laws in general, see notes to the last section. The Minnesota law reads (1895, 173, § 1):
Every master or employer in this State shall use reasonable care to provide the person or persons in his employ with reasonably safe, suitable and sufficient tools, implements and instrumentalities with which to do the master's work, and also use reasonable care to provide a reasonably safe and suitable place for his servants to perform the duties assigned to them by the master.
It shall also be the master's duty to use reasonable care to establish safe and suitable rules and regulations or methods for the performance of the work required of his servants, and to direct and supervise the performance of the work in a reasonably safe and prudent manner.
2 Thus, in Ohio (1890, p. 149, § 2):
It shall be unlawful for any such corporation to knowingly or negligently use or operate any car or locomotive that is defective, or any car or locomotive upon which
Contracting out. The statutes cited in this and the last section are very generally further protected by a provision that any contract releasing the employer from his liability to employees in the manner severally prescribed by the several statutes shall be null and void. 3 In other States only contracts are declared void which attempt to release the employer from liability for injuries resulting from his negligence, or that of other persons in his employ.*
In Colorado, Montana, and Wyoming the constitution provides that, It shall be unlawful for any person, company or corporation to require of its servants or employees, as a condition of their employment or otherwise, any contract or agreement whereby such person, company or corporation shall be released or discharged from liability or responsibility on account of personal injuries received by such
servants or employees while in the service of such person, company or corporation, by reason of the negligence of such person, company or corporation, or the agents or employees thereof, and such contract shall be absolutely null and void (Col. Const., 15, 15; Mont. Const., 15, 16; Wyo. Const., Art. 19, 1); and, in Wyoming, that “no law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person;" so, in Utah, as to injuries resulting in death (Utah Const., 16, 5). “Any contract or agreement with any employee waiving any right to rucover damages for causing the death or injury of an employee shall be void” (Wyo. Const., 10, 4).
SEC. 4. INJURIES RESULTING IN DEATH.--In Massachusetts, Ohio, Mississippi, Indiana, Alabama, Colorado and New Mexico damages up to a certain amount may be recovered by employees for injuries resulting in death, though instantaneous and not preceded by conscious suffering. And in Massachusetts, South Carolina, and New Mexico the machinery or attachments thereto belonging are in any manner defective. If the employee of any such corporation shall receive any injury by reason of any defect in any car or locomotive, or the machinery or attachments thereto belonging, owned and operated, or being run and operated by such corporation, such corporation shall be deemed to have had knowledge of such defect before and at the time such injury is so sustained, and when the fact of such defect shall be made to appear in the trial of any action in the courts of this State, brought by such employee, or his legal representatives, against any railroad corporation for damages, on account of such injuries so received, the same shall be prima facie evidence of negligence on the part of such corporation, and substantially so in New Mexico (1893, 28, 2).
3So in Ohio, Indiana, Wisconsin, Minnesota, Iowa, Missouri, North and South Carolina, Florida, Texas, Arkansas, Georgia (1895, 184), and New Mexico. The same would probably be law without statute.
*So in Massachusetts (1894, 508, 6):
No person or corporation shall, by a special contract with persons in his or its employ, exempt himself or itself from any liability which he or it might be under to such persons from injuries suffered by them in their employment and which result from the employer's own negligence or from the negligence of other persons in his or its employ.
And in Montana (Civ. C., 2242): Any contract or agreement entered into þy any person, company or corporation, with its servants or employees, whereby such person, company or corporation shall be released or discharged from liability or responsibility on account of personal injuries received by such servants or employees while in the service of such person, company or corporation, by reason of the negligence of such person, company or corporation, or the agents or employees thereof, shall be absolutely null and void.
Massachusetts (1887, 270, 2):
Where an employee is instantly killed or dies without conscious suffering, as the result of the negligence of an employer, or of the negligence of any person for whose negligence the employer is liable under the provisions of this act, the widow of the deceased, or in case there is no widow, the next of kin, provided that such next of in were at the time of the death of such employee dependent upon the wages of such