was to assist in loading and unloading gravel cars; a person operating a ditching machine carried on a car; a laborer on a train used for hauling and assisting in loading and unloading the cars. On the other hand, a workman in a railway company's shops; an employé whose duty consists in wiping engines and in opening and closing the doors of a round house; a section hand injured while engaged in loading a car; an employé injured by appliances connected with a round house; employés engaged in elevating coal to a platform to supply an engine; an employé whose duty it is to repair cars while standing on the track, and who was sometimes required to ride on the trains from place to place, and an employé engaged in the work of repairing the track, have been refused compensation for injuries sustained through the negligence of a co-servant. It is not provided that the negligent and the injured employé shall be co-employés in the same general employment, in the sense that they must be equal in power and authority; all that is required is, that both shall be employés of the corporation. Accordingly an employé who stands in the relation of vice-principal to the men under his control is an employé within the meaning of the Act, and can recover of a railroad company by reason of the negligence of the men selected by himself, and whom he may discharge or retain in his employment as he sees fit. It has also been decided that a receiver who is managing a railway under the direction of the Court is within the Act, and may be charged and a recovery obtained against him, as a person operating a railway2. And the fact that a lessee may be held liable under the Act does not prevent recovery against the owner of the road 3. Like the Georgia Act, the statute does not exonerate the injured party from the necessity of exercising reasonable care. Wyoming. The Legislature of the territory of Wyoming in 1869 passed the following Act to protect railroad employés who are injured while performing their duty:'— 'Any person in the employment of any railroad company in this Territory who may be killed by any locomotive, car, or other rolling stock, whether in the performance of his duty or otherwise, his widow or heirs may have the same right of action for damages against such company as if said person so killed were not in the employ of said company; any agreement he may have made, whether verbal or written, to hold such company harmless or free from an action for damages in the event of such killing shall be 1 Houser v. Chicago &c. R. Co., 60 Iowa, 230. null and void, and shall not be admitted as testimony in behalf of said company in any action for damages which may be brought against them; and any person in the employ of said company who may be injured by any locomotive, car, or other rolling stock of said company, or by other property of said company, shall have his action for damages against said company the same as if he were not in the employ of said company; and no agreement to the contrary shall be admitted as testimony in behalf of said company. Sect. 2. This Act shall take effect from and after its passage 1.' The Territorial Court of last resort has not, in the twenty years that have elapsed since its passage, been called upon to construe this Act. Montana. By imposing on a railroad company the duty of exercising towards its servants the extreme care which it owes to its passengers, the Act of this territory carries the company's liability beyond that imposed by the statutes of any other State or Territory. The Act reads as follows: : 'That in every case the liability of the corporation to a servant or employé acting under the orders of his superior shall be the same in case of injury sustained by default or wrongful act of his superior, or to an employé not appointed or controlled by him, as if such a servant or employé were a passenger 2.' Kansas. In 1874 the following Act passed the Legislature of Kansas: 'Every railroad company organised or doing business in this State shall be liable for all damages done to any employé of such company in consequence of any negligence of its agents, or by any misunderstanding of its engineers or other employés to any person sustaining such damage.' This Act has not been given the extended application which its terms seem to warrant. It was adopted from the statute of Iowa, and the judicial construction given to the Act in that State has followed it into Kansas. The maxim Ita lex scripta est to the contrary, therefore, it has been held by the Courts to embrace only those persons engaged in the hazardous business of railroading. The care or diligence the Act exacts toward the employé is that degree of diligence which men in general exercise in respect to their own concerns; and contributory negligence of the employé bars a recovery 3. Notwithstanding the statute provides that every railway company shall be liable for all damages done to any employé in consequence of any negligence of its agents or by any mismanage VOL. VI. 1 Comp. Laws, Wyoming (1876), p. 512, c. 97, s. I. ment of its engineers or other employés, the Court has held that the knowledge or notice, act or omission for which the company is responsible, must be that of some agent or employé having authority or duty in the premises 1. Wisconsin.-In Wisconsin we find the only State which, after abrogating the common law rule, has returned to it again. The following Act was passed in 1875, and under the pressure brought to bear by the railways was repealed in 1880:— 'Every railroad corporation shall be liable for all damages sustained by any agent or servant thereof by reason of the negligence of any other servant or agent thereof, without contributory negligence on his part, when sustained within this State, or when such agent or servant is a resident of, and his contract of employment was made in this State; and no contract, rule or regulation between any such corporation and any agent or servant shall impair or diminish such liability.' This Act was held to be constitutional soon after its adoption and not to be limited to those employed in operating railways2. Beyond this no important decisions were rendered under it. Rhode Island.-The Act of this State goes beyond those that we have already considered in that its application is not confined to railways, but embraces all common carriers. It was enacted in 1882 If the life of any person, being a passenger in any stage-coach, or other conveyance, when used by common carriers, or the life of any person, whether a passenger or not, in the care of proprietors of, or common carriers by means of, railroads or steamboats, or the life of any person crossing upon a public highway with reasonable care, shall be lost by reason of the negligence or carelessness of such common carriers, proprietor or proprietors, or by the unfitness or negligence or carelessness of their servants or agents, in this State, such common carriers, proprietor or proprietors, shall be liable to damages for the injury caused by the loss of life of such person, to be recovered by action on the case, for the benefit of the husband or widow and next of kin of the deceased person, one-half thereof to go to the husband or widow, and one-half thereof to the children of the deceased 3.' The Act applies generally to all common carriers, whether by rail, steamboat, or coach. It extends to carriers by water as well as by land 4. Alabama.—In 1885 the Legislature of the State of Alabama passed 6 an Act regulating employers' liability for injuries to their employés, which, as far as it goes, is the English Employers' Liability Act, 1880,' almost verbatim. It will be unnecessary, therefore, to set out its terms here. In construing this Act it has been the doctrine of the Alabama Courts that, the statute being in derogation of the common law, the inference is that the terms of the Act clearly import the changes intended, and their operation is not enlarged by construction further than may be necessary to effectuate the nearest ends. Notwithstanding, a narrow and restrictive view of the Act is not taken. In its construction the Court considers its objects, has regard to the intentions of the Legislature, and takes a broad view of its provisions, commensurate with the proposed purposes. The statute being a substantial copy of the English Act its enactment by the Legislature in substantially the same language is persuasive of a legislative adoption of the judicial construction of the English Courts. Accordingly we find the Alabama Courts following the English construction wherever it has been permissible. Under the Act the party claiming damages must be an employé at the time of the injury, by contract, express or implied, binding on the defendant; and the injury must be received while rendering the service required by the particular employment or in obeying the order of a superior to which the employé is bound to conform. Injury received while doing other more hazardous service not pertaining to the employment, by way of accommodation or self-assumed, is not sufficient. Where it appeared, therefore, that a night watchman about a station was accustomed to go upon defendant's trains to a distant station for his meals, and, while going thither on a freight train, was asked by the conductor, one of the brakemen being sick, to make a coupling for him, in doing which he was injured; it was adjudged that there was no such employment as brakeman as rendered the company liable 1. The word 'machinery' has been held not to include a hammer used for driving spikes into cross ties 2. The Court gave the following definition of machinery: 'A machine is a piece of mechanism which, whether simple or compound, acts by a combination of mechanical parts, which serve to create or apply power, to produce motion, or to increase or regulate the effect.' A recovery has been denied a locomotive engineer under this Act for injuries received by the fall of a trestle, the foundation of which was washed out by an unusually great and destructive flood, it appearing that the trestle was constructed in the manner usual with the best managed railroads, and that it had afforded a safe passage for trains for fifteen years 3. Negligence 1 Georgia Pac. R. Co. v. Propst, 4 So. Rep. 711. 2 Georgia Pac. R. Co. v. Brooks, 4 So. Rep. 289. 3 Columbus & W. R. Co. v. Bridges (Ala.), 4 So. Rep. 864. cannot be imputed to a railroad company under the Act from the fact that a locomotive engineer attempted to cross a defective bridge. after the safety signal was given, where it appears that the signal was not given from the end of the bridge being approached by the train as required by the rules of the company. Under the section relating to knowledge of defects by the employé, it is held that an employer knowing of a defect or negligence cannot set up that the employé, by continuing in the work, has thereby waived his right to sue for injuries received 2; also that the absence of contributory negligence need not be set out in the complaint 3. Minnesota.-The State next in chronological order to amend the law was Minnesota. Chap. 13 of the Laws of 1880 reads as follows: '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 liability: provided that nothing in this Act shall be so construed as to render any railroad company liable for damages sustained by any employé, agent, or servant while engaged in the construction of a new road, or any part thereof, not open to public travel or use.' Although this Act applies in terms to any agent or servant' of a railroad company, yet, by a wonderful process of reasoning, the Supreme Court of Minnesota construed it to apply only to those employés engaged in operating the railroads, and so exposed to the peculiar dangers attending that business. We can see why,' say the Court, the employer's liability should be greater when the business is that of operating a railroad, but cannot see why one individual or corporation should be held to a rule of liability dif ferent from that applied to another, when the employment and its hazards are precisely the same. We cannot illustrate this better than by using an illustration employed by the Supreme Court of Iowa in Deppe v. Railroad Co., 36 Iowa, 52: "Suppose a railroad company employ several persons to cut the timber on its right of way where it is about to extend its road, and the landowner employs a like number of persons to cut the timber on a strip of equal length alongside such right of way. If one of each set of employés shall be injured by the negligence of a co-employé, and the railroad 1 Columbus & W. R. Co. v. Bridges (Ala.), 5 So. Rep. 864. 2 Mobile & B. R. Co. v. Holborn (Ala.), 4 So. Rep. 146. |