pealed, and in place of it the Congress enacted a similar law approved April 22, 1908 (35 Stat. 65, chap. 149 [ U. S. Comp. Stat. Supp. 1911, p. 1322]), which reads as follows:

"An act relating to the liability of common carriers by railroad to their employés in certain cases.

"Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that 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 Columbia 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 commerce, or, in case of the death of such employé, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employé; and, if none, then of such employé's parents; and if none, then the next of kin dependent upon such employé, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés 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. 2. That every common carrier by railroad in the territories, 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 of the death of such employé, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employé; and, if none, then of such employé's parents; and, if none, then of the next of kin dependent upon such employé, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés 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. 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 employé, or where such injuries have resulted in his death, the fact that the employé may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employé. Provided that no such employé who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such employé.

SEC. 4. 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 employés, such employé 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 employés contributed to the injury or death of such employé.

SEC. 5. 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 employé or the person entitled thereto on account of the injury or death for which said action was brought.

"SEC. 6. That no action shall be maintained under this act unless commenced within two years from the day the cause of action accrued.

"SEC. 7. That 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. That nothing in this act shall be held to limit the duty or liability of common carriers or to impair the rights of their employés 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 District of Columbia and territories, and to common carriers engaged in commerce between the States and between the States and foreign nations to their employés', approved June eleventh, nineteen hundred and six."

This act was before the court in various cases referred to in the reports as Second Employers' Liability Cases, 223 U. S. 1 (32 Sup. Ct. 169). Those portions of the unanimous opinion of the court which discuss questions presented by the record before us are here repeated:

"We come, then, to inquire whether congress has exceeded its power in that regard by prescribing the regulations embodied in the present act. It is objected that it has (1) because the abrogation of the fellow-servant rule, the extension of the carrier's liability to cases of death, and the restriction of the defenses of contributory negligence and assumption of risk have no tendency to promote the safety of the employés or to advance the commerce in which they are engaged; (2) because the liability imposed for injuries sustained by one employé through the negligence of another, although confined to instances where the injured employé is engaged in interstate commerce, is not confined to instances where both employés are so engaged; and (3) because the act offends against the fifth amendment to the Constitution (a) by unwarrantably interfering with the liberty of contract, and (b) by arbitrarily placing all employers engaged in interstate commerce by railroad in a disfavored class and all their employés engaged in such commerce in a favored class.

Briefly stated, the departures from the common law made by the portions of the act against which the first objection is leveled are these: (a) The rule that the negligence of one employé resulting in injury to another was not to be attributed to their common employer is displaced by a rule imposing upon the employer responsibility for such an injury, as was done at common law when the injured person was not an employé; (b) the rule exonerating an employer from liability for injury sustained by an employé through the concurring negligence of the employer and employé is abrogated in all instances where the employer's violation of a statute enacted for the safety of his employés contributes to the injury, and in other instances is displaced by the rule of comparative negligence, whereby the exoneration is only from a proportional part

of the damages corresponding to the amount of negligence attributable to the employé; (c) the rule that an employé was deemed to assume the risk of injury, even if due to the employer's negligence, where the employé voluntarily entered or remained in the service with an actual or presumed knowledge of the conditions out of which the risk arose, is abrogated in all instances where the employer's violation of a statute enacted for the safety of his employés contributed to the injury; and (d) the rule denying a right of action for the death of one person caused by the wrongful act or neglect of another is displaced by a rule vesting such a right of action in the personal representatives of the deceased for the benefit of designated relatives.

"Of the objection to these changes it is enough to ob

serve:

* *

"First. 'A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will * of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances.' Munn v. Illinois, 94 U. S. 113, 134; Martin v. Railroad Co., 203 U. S. 284, 294 [27 Sup. Ct. 100, 8 Am. & Eng. Ann. Cas. 87]; The Lottawanna, 21 Wall. [U.S.] 558, 577; Western Union Tel. Co. v. Milling Co., 218 U. S. 406, 417 [31 Sup. Ct. 59, 36 L. R. A. (N. S.) 220, 21 Am. & Eng. Ann. Cas.

815) Second. The natural tendency of the changes de

scribed is to impel the carriers to avoid or prevent the negligent acts and omissions which are made the bases of the rights of recovery which the statute creates and defines; and, as whatever makes for that end tends to promote the safety of the employés and to advance the commerce in which they are engaged, we entertain no doubt that in making those changes congress acted within the limits of the discretion confided to it by the Constitution. Lottery Case, 188 U. S. 321, 353, 355 [23 Sup. Ct. 3211; Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, 203 [31 Sup. Ct. 164, 31 L. R. A. (N. S.) 7].

66 We are not unmindful that that end was being meas

urably attained through the remedial legislation of the several States, but that legislation has been far from uniform, and it undoubtedly rested with congress to determine whether a national law, operating uniformly in all the States upon all carriers by railroad engaged in interstate commerce, would better subserve the needs of that commerce. The Lottawanna, 21 Wall. [U. S.] 558, 581, 582; Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368, 378, 379 [13 Sup. Ct. 914].

"The second objection proceeds upon the theory that, even although congress has power to regulate the liability of a carrier for injuries sustained by one employé through the negligence of another where all are engaged in interstate commerce, that power does not embrace instances where the negligent employé is engaged in intrastate commerce. But this is a mistaken theory, in that it treats the source of the injury, rather than its effect upon interstate commerce, as the criterion of congressional power. As was said in Southern R. Co. v. United States, 222 U. S. 20, 27 [32 Sup. Ct. 2], that power is plenary, and competently may be exerted to secure the safety of interstate transportation and of those who are employed therein, no matter what the source of the dangers which threaten it. The present act, unlike the one condemned in Employers' Liability Cases, 207 U. S. 463 [28 Sup. Ct. 141], deals only with the liability of a carrier engaged in interstate commerce for injuries sustained by its employés while engaged in such commerce. And, this being so, it is not a valid objection that the act embraces instances where the causal negligence is that of an employé engaged in intrastate commerce; for such negligence, when operating injuriously upon an employé engaged in interstate commerce, has the same effect upon that commerce as if the negligent employé were also engaged therein.

"Next in order is the objection that the provision in section 5, declaring void any contract, rule, regulation, or device, the purpose or intent of which is to enable a carrier to exempt itself from the liability which the act creates, is repugnant to the fifth amendment to the Constitution as an unwarranted interference with the liberty of contract. But of this it suffices to say, in view of our recent decisions in Chicago, etc., R. Co. v. McGuire, 219 U. S. 549 [31 Sup. Ct. 259], Atlantic Coast Line Co. v. Riverside Mills, 219 U. S. 186 [31 Sup. Ct. 164,