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Qornell Law School Gibrary
Cornell Unive
KF 1316.R52 1916

iia

| 3 19
RICHEY’S

Federal Employers’ Liability,
Safety Appliance, and
Hours of Service
Acts

Second Edition

\

By
DAUNIS McBRIDE, LL. B.

Tue Micnie Company, Law PUBLISHERS
CHARLOTTESVILLE, VA.
1916.
CopyricHt 1916
BY
Tue Micuie Co.
Preface

The growing importance of the subjects covered by these acts is
strongly emphasized by the fact that since their enactment, the Su-
preme Court of the United States has handed down one hundred and ten
decisions in cases arising thereunder. Seventy-nine of these cases were
decided since the first edition of this book was printed. Forty of them are
not covered by any other published work.

In presenting the Second Edition of this work to the profession, the
attempt has been made to follow, as far as practicable, the outline con-
tained in the former edition. The enlargement of the scope of the work,
however, so as to include both the Safety Appliance and Hours of Service
Acts, together with the great multiplicatibtr of decided cases, has necessi-
‘tated a wide amplification.

The table of contents has been so arranged in connection with the text,
as to make any subject at once available. The subjects embraced in chap-
ters are divided into appropriate sections, each of which carries a number,
corresponding with similar numbers running through the text. Any fur-
ther division thought necessary is made in the text, but generally in the
notes, where a particular point under a main division being set out in black
type may be noted at a glance.

The First Edition was limited to the Employers’ Liability Act, and cov-
ered only about 125 cases actually arising under that Act—all that had
been decided up to that time. The present edition embraces nearly 1,000
decisions—all that have been decided up to the date of going to press—
arising directly under the three Acts; about seventy-five per cent. of them
arising under the Employers’ Liability Act.

In framing the text, every case has been personally examined by the au-
thor in the preparation of the present edition, and it has been his constant
endeavor, first, to evolve from the actual decisions the basic and underly-
ing principles of the subject; and, second, to illustrate and apply them by
means of full extracts and numerous concrete examples taken from the
opinions. In cases where the courts have disagreed, what was believed to
be the better opinion has been given, together with the reason therefor, and
the contrary noted with such comments as seemed applicable.

No phase of any subject arising under any one of the three Acts has been

3
IV PREFACE.

left untouched. There has been added the full text of the Acts with
amendments to date, and the rulings of the Interstate Commerce Commis~
sion under each; also such additional Acts of Congress as are of im-
portance in connection with the three principal Acts. The law and its in-
terpretation is thus placed in one complete volume, and is presented to the
profession in full confidence that it will be found to be, as it was designed
to be, accurate, thorough, exhaustive, upon the subject covered.

Daunis McBripe.
Charlottesville, Va.

November 1, 1916.
Contents

The Federal Employers’ Liability Act

 

CHAPTER I.

Power oF CoNnGRESS TO REGULATE RELATION OF MaAstTER AND SERVANT.

. General Power of Congress, § 1.
. No Power over Carriers and Employees While Not Engaged in Interstate

Commerce, § 2.

. Where inJury to Interstate Employee Results from Negligence of Employee

or Agency Not Engaged in Interstate Commerce, § 3.

. In the District of Columbia, Territories, and Places under Exclusive Federal

Control, § 4.

. Power Extends to All Carriers, Both on Land and Water, § 5.

CHAPTER II.

LIMITATION OF STATE AND TERRITORIAL POWERS.

. State Power and Its Limitations, §§ 6-7.

a. General Consideration, § 6.
b. Effect of Priority of State Enactment, § 7.

. Territorial Statutes Superseded, § 8.

CHAPTER III.

NATURE AND SCOPE OF ACT.

“1. Reason, Purpose and General Nature of Act, § 9.

2. Scope of Act, §§ 10-13.

ye ee ee ne

a. Limited to Common Carrier, § 10.

b. Limited to Railroads, § 11. ,

c. Limited to Parties Engaged in Interstate Commerce, § 12.

d. Necessity of Existence of Relation of Employer and Employee, § 13.

CHAPTER IV.

CoNSTITUTIONALITY OF ACT.

. Generally, § 14. ;
. As Encroaching upon State powers, Regulating Intrastate Commerce, etc., § 15.

As a Deprivation of Liberty or Property without Due Process of Law, § 16.
Equal Protection of the Laws—Arbitrary Classification, § 17.
Rights, Privileges and Immunities of Citizenship, § 18.
Who May Raise Constitutional Questions, § 19.
5
Vi ABLE OF CONTENTS.

CHAPTER V.
CUNSTRUCTION AND OPERATION OF ACT.

1. Construction of Act, §§ 20-22.
a. By What Courts Construed, § 20.
b. Penal or Remedial—Strict or Liberal, § 21.
c. Construction on Questions of Negligence of Fellow Servants, Assumption
of Risk, etc., § 22.
2. Operation of Act, §§ 23-28.
a. Prospective or Retroactive, § 23.
b. Exclusive or Controlling Operation of Federal Act, §§ 24-28.
(1) Superseding State Law, § 24.
(2) Exclusive Operation of State and Federal Law, § 25.
(3) As to Carriers and Employees While Engaged in Intrastate Com-
merce, § 26.
(4) Right to Recover under Either State or Federal Law—Pleading and
Proof, § 27.
(5) Controlling Over State Workmen’s Compensation Acts, § 28.

CHAPTER VI.

AGREEMENTS IN CONTRAVENTION OF ACT.

. Contract, Stipulation, or Device Intended to Defeat Operation of Statute, § 29.
. Requiring Notice Precedent to Suit, § 30.

. Contracts with Relief Department, § 31.

. Release of Liability Subsequent to Injury, § 32.

me Oo dO

CHAPTER VII.

EMPLOYER AND EmpLoyvre ENGAGED IN INTERSTATE COMMERCE.

1. General Principles to Determine, § 33.
2. The Employer, §§ 34-35.
a. Operating Own Road, § 34.
b. Operating Leased Road, § 35.
8. The Employee, §§ 36-51.
a. Employees Constructing or Repairing Instrumentalities, §§ 36-40.
(1) Employees Engaged in Repairing Instruments of Commerce—Gen-
erally, § 36.
(2) Employees Repairing Tracks, Bridges, etc., Used in Both Interstate
and Intrastate Traffic, § 37.
(3) Original Construction of Instrumentalities, § 38.
(4) Employees in Repair Shops, § 39.
(5) Repairing Interstate Cars in Transit, Awaiting Transfer, or Re-
turn, § 40.
b. Employees Actually Engaged in, or Assisting in, Transportation, §§ 41-46.
(1) Generally, § 41.
(2) Intrastate Movement of Trains—Carrying Interstate Shipments, § 42.
(3) Employees Preparing Interstate Trains to Go Out, § 43.
(4) Employees Supplying Fuel, Water, etc., for Indiscriminate Use, § 44.
ws ee

FD oP

=

TABLE OF CONTENTS. VIt
(5) Employees on Interstate Train—Switching Cars to Compose Train—
When Doing Local Switch Work—Switching after Arrival at
Terminus, § 45.
(6) Employees Switching Cars in Yards or between Local Points, § 46.
c. Locai Employees; as Clerks, Hostlers, Watchmen, Gardeners, Car Loaders,
Inspectors, § 47.
d. Employees Not Particularly Engaged—Effect of Past or Future Serv-
ice, § 48.
e. Employees Engaged upon or about Ferryboats or Other Vessels Op-
erated by Railway Companies, § 49.
f. Persons Employed Jointly by Railroad Company and Another—Pullman
Employees, Express Agents, etc., § 50. |
g. Employees Going to, or Returning from, Work; Waiting to Go on Duty;
Turning Aside During Employment; etc., § 51.

CHAPTER VIII.

NEGLIGENCE OF RAILROAD.

. Degree of Care Required, § 52.

. Liability for Neglect of Officers, Agents, and Employees, § 53.

. Liability for Defects in Cars, Engines, Appliances, etc., § 54.

. Proximate and Concurrent Cause of Injury, § 55.

. Violation of Statutes as Negligence, § 56.

. Gross Negligence—Willful Injuries, § 57.

. Liability under Traffic Agreement or between Lessor and Lessee, § 58.

CHAPTER IX.

FEeELLOw SERVANT.

. Rule Abolished, § 59.

2. Fellow Servants within Meaning of Act, § 60.

PR ep

. Limitation by Scope of Employment, § 61.

CHAPTER X.

ContTriputory NEGLIGENCE.

What Constitutes Contributory Negligence Unchanged, § 62.

. Abolished When Statute Violated, § 63.
. Proportionate Recovery in Other Cases, § 64.

Extent of Rule as to Proportionate Recovery, § 65.
As Proximate Cause of Injury, § 66.

. As Question of Law or Fact, § 67.

CHAPTER XI.
ASSUMPTION or RISK.

Distinguished from Contributory Negligence, § 68.

2. Available When No Statute Violated, § 69.
VIII TABLE OF CONTENTS.

3. Superseding State Common Law Rule, § 70.
4, Section Refers to Federal Statutes, § 71.
5. Extent and Application of Doctrine, §§ 72-75.
a. Statement of Rule, § 72.
b. Effect of Knowledge by Employee, § 73.
c. Assumed Risk of One of Two Concurring Causes, § 74.
d. As Question of Law or Fact, § 75.

CHAPTER XII.

NAaATuRE oF CAUSE OF ACTION—ABATEMENT, SURVIVAL AND REVIVAL,

- General Nature; Survival, § 76.

. Revival, § 77.

. Only One Recovery for Same Injury, § 78.
. Effect When Death Instantaneous, § 79.

www em

CHAPTER XIII.

PARTIES ENTITLED TO SUE.

. Necessity of Appointment of Personal Representative, § 80.

. Action Maintainable Only by Personal Representative, § 81.

. Amendment of Declaration or Complaint, § 82.

. Adoption of Proceedings by Personal Representative after Judgment, § 83.
. Doctrine as to Nonsuit, § 84.

. Former Judgment as Res Adjudicata, § 85.

. Suit by Foreign Personal Representative, § 86.

. Suit by Ancillary Administrator, § 87.

. Objections and Waiver, § 88. ,

oOoOmMonN Aor WW Ie

CHAPTER XIV

BENEFICIARIES UNDER ACT.

. For Whose Benefit, § 89.

. Exclusive Operation, § 90.

. Existence of Beneficiaries in One Class as Excluding Other Classes, § 91.

. Dependency and Pecuniary Expectation of Beneficiaries of First and Second
Class, § 92.

. Character of Expectation or Dependency of Beneficiaries of Third Class, § 93.

. Recovery Not for Equal Benefit of Beneficiaries, § 94.

. Effect of Separation or Divorce on Rights of Widow and Children as Bene-
ficiaries, § 95. |,

8. Existence of Beneficiaries a Jurisdictional Fact, § 96.

9, Pecuniary Loss of Beneficiaries, § 97.

10. State Law Determines Beneficiaries, § 98. .

11. Right cf Recovery for Benefit of Aliens, § 99.

on Pw NW

“TD
a ad

TABLE OF CONTENTS. Ix

CHAPTER XV.

LIMITATION OF ACTION.

. General Provision, § 100.

. As Affected by State Laws, § 101.

. Institution of Suit by Employee—Effect on Action for Death, § 102
Limitation of Right, Not Remedy, § 103.

. Amendment Setting up New Cause of Action, § 104.

CHAPTER XVI.

JURISDICTION OF CouRTS AND REMOVAL OF CAUSES.

1, Jurisdiction of Federal and State Courts, §§ 105-111.

a.

b.

Of the Federal Courts, §§ 105-107.

(1) In General, § 105.

(2) Admiralty Jurisdiction of Federal Courts, § 106.

(3) Of Territorial Courts on Admission to Statehood, § 107.
Jurisdiction of State Courts, §§ 108-111.

(1) As Concurrent with Federal Courts, § 108.

(2) Constitutionality of Grant of Jurisdiction, § 109.

(3) Duty of State Courts to Take Jurisdiction, § 110.

(4) Competency of Jurisdiction as Affected by Constitution of Jury, or

Verdict Not Unanimous, § 111.

2. Removal of Cause, §§ 112-120.

a.
b.

moog moan

Prior to Express Prohibition Contained in Act, § 112.
Removal Subsequent to Express Prohibition Embodied in Act and Judi-
cial Code, § 113.

. Retroactive Operation of Provision, § 114.
. Constitutionality of Prohibition against Removal, § 115.

When Cause Shown under Act within Prohibition, § 116.
Fraudulent Allegations Designed to Prevent Removal, § 117.

. Jurisdiction to Determine Removability, § 118.
. Mandamus to Compel Remand, § 119.

i. Waiver of Right to Object to Removal, § 120.

CHAPTER XVII.

VENUE.

1. In General, § 121.
2. Waiver of Objections, § 122.

CHAPTER XVIII.

PROCEDURE.

1. State Rules as Governing, § 123.
2. Substantive Rights Not to Be Defeated, § 124.
x TABLE OF CONTENTS.

1
2

1
2

CHAPTER XIX.
ELECTION OF REMEDIES.

. Right to Require Election, § 125.
. Effect of Election When Other Law Governs, § 126.

CHAPTER XX.

PaRTIES.

. Party Plaintiff, § 127.
. Parties Defendant, § 128.

CHAPTER XXI.

PLEADING.

. Declaration or Complaint, §§ 129-137.
a. Unnecessary to Plead Statutes, § 129.
b. That Plaintiff and Defendant Were Engaged in Interstate Commerce, § 130.
c. Existence of Beneficiaries, § 131.
d. Certainty of Allegations, § 132.
e. Sufficiency to Show Negligence, § 133.
f. Aider by Plea or Answer, § 134.
. Negativing Defenses, § 135.
. Joinder of Causes of Action, § 136.
i. Amendment of Declaration or Complaint, § 137.

= 09

2. Plea or Answer, §§ 138-141.

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Dm oC

n

a. Necessity of Defendant Pleading Act as Defense, § 138.

b. Pleading Assumed Risk and Contributory Negligence, § 139.
c. Plea to Venue, Where Action Brought in Federal Court, § 140.
d. Lis Pendens, § 141.

CHAPTER XXII.

DEFENSES TO ACTION.

. In General, § 142.
. Contributory Negligence and Assumption of Risk, § 143.

Settlement by Administrator, § 144.

. Former Judgment as Res Adjudicata, § 145,
. Lis Pendens, § 146.,
. Defenses of Co-defendant, § 147.

CHAPTER XXIII.

EVIDENCE.

. Presumption and Burden of Proof, § 148. |
. Judicial Notice, § 149.

Admissibility of Evidence, §§ 150-159.
a. Under Issues Made by Pleadings, § 150.
woe

7

Om CO 1D

TABLE OF CONTENTS. Xi

. Of Interstate Commerce, § 1£1.

. Relation of Parties, § 152.

. Of Negligence, § 153.

Of Contributory Negligence, § 154.

. Of Rules and Orders, § 155.

. Of Pain, Suffering, and Mental Anguish, § 156
Damages to Plaintiff, § 157.

. Damages to Beneficiaries, § 158.

j. Evidence on Cross-Examination, § 159.

ce TR ORO eT

. Sufficiency of Evidence, §§ 160-164.

a. Generally, § 160.

b. Of Interstate: Commerce, § 161.

c. Of Negligence of Defendant, § 162.

d. Under Doctrine of Res Ipsa Loquitur, § 163.

e. To Take Question to Jury, Following Federal Rule, § 164.

. Variance, §§ 165-166.

a. In Pleading Applicable Law, § 165.
b. Variance in Pleading and Proving Negligence, § 166.

. Amendment to Conform to Proof, § 167.
. Objections and Waiver, § 168.

COAPTER XXIV.

WITNESSES.

. Competency, § 169.

. Confidential Communications to Physician, § 170. :
. Absent Witnesses, and Failure to Procure or Call Witnesses, § 171.

. Conduct of Witnesses on Stand, § 172.

CHAPTER XXV.

INSTRUCTIONS.

. Sufficiency in General, § 173.

. Exceptions and Objections, § 174.

. Instructions on Negligence, § 175.

. Instructions on Contributory Negligence, § 176.
. Instructions upon Assumption of Risk, § 177.

CHAPTER XXVI.

DAMAGES.

1. Upon Cause of Action Accruing to Injured Employee, § 178.

. Elements of Damage to Employee, § 179.
‘Upon Cause of Action Accruing upon Death of Injured Employee, § 180.
. Pecuniary Loss to Beneficiaries, §§ 181-185.

. General Determination, § 181.
. Surviving Wife, § 182.

. Children, § 183.

. Surviving Parents, § 184.
Next of Kin, § 185.

cP An oe
XII TABLE OF CONTENTS.

ao

. Apportionment of Damages among Beneficiaries, § 186.
. Right of Administrator to Commission on Recovery, § 187.
. Apportionment or Diminution of Damages in Case of Contributory Negli-

gence, § 188.

. Amount of Damages, §§ 189-193.

. In General, § 189.

. Recovery for Widow and Children, § 190.

Recovery for Parents, § 191.

. Recovery for Pain and Suffering of Deceased, § 192.
. Recovery for Personal Injuries, § 193.

eoagoee

CHAPTER XXVII.

DIsMIssaL AND NONSUIT.

. In General, § 194.

. Nonsuit as to One Party in Case of Fraudulent Joinder, § 195.
. As Res Adjudicata, § 196.

CHAPTER XXVIII.

TRIAL AND VERDICT.

. Consolidation and Continuance, 197.
. Arguments of Counsel, § 198.
. Verdict, § 199.

CHAPTER XXIX.

APPEAL AND ERROR.

. Exceptions and Objections, § 200.
. Petition for Writ, Briefs, Assignment of Error, and Bill of Exceptions, § 201.
. Necessity of Prejudicial Error, § 202.

Changing Theory of Case on Appeal, § 203.

. Presumption on Appeal, § 204.

Parties on Appeal, § 205.
Former Opinion as Law of Case, § 206.

. Questions Proper for Review, § 207.
. Appeals Peculiar to Particular Courts, §§ 208-212.

a. From Lower Federal Court to Supreme Court, § 208.
b. From Circuit Court of Appeals, § 209.
c. From Court of Appeals in District of Columbia, § 210.
d. From State Court of Last Resort to Supreme Court of United States.
§§ 211-212.
(1) Claim and Denial of Federal Right, § 211.
(2) Extent of Review, § 212.

10. Judgment on Appeal, § 213.
oF WN on Pr wo Ww He

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TABLE OF CONTENTS. XIII

Safety Appliance Act

CHAPTER XXX.

OBJECT, VALIDITY, AND OPERATION OF ACT.

. Object and Purpose, § 214.

. Constitutionality, § 215.

. Construction, § 216.

. Nature of Duty Imposed, § 217.
. Operation on State Laws, § 218.

CHAPTER XXXI.

RAILROADS ENGAGED AND VEHICLES USED IN INTERSTATE COMMERCE.
What Constitutes Interstate Commerce, § 219.

. Test of Applicability, § 220.

. Railroads Engaged in Interstate Commerce, § 221.
. Vehicles Used in Interstate Commerce, § 222.

. Vehicles Set Aside for Repairs, § 223.

CHAPTER XXXII.

INSTRUMENTALITIES TO BE EQUIPPED AND SUFFICIENCY OF EQUIPMENT.

. Foreign Cars, § 224.
. Interchangeable Equipment, § 225.
. Air brake, §§ 226-228.

a. Requirements of Statute and Interstate Commerce Commission, § 226.
b. Engines with Brakes and Air Power, § 227. ‘
c. Trains with Power Brakes, § 228.

. Automatic Couplers on Cars, §§ 229-235.

. Vehicles Embraced under Term “Cars,” § 229.
. Cars Engaged in Switching, § 230.

. Complete Equipment of Each Car, § 231.

. Empty Cars, § 232.

. Test of Sufficiency, § 233.

Standard and Design of Coupler, § 234.

g. Defective or Inoperative Couplers, § 235.

mono oh

. Grab Irons, Handholds, Hand Brakes, Ladders, Running Boards, etc., §§

226-239.

a. Requirements of Statute and Interstate Commerce Commission, § 236.

b. Vehicles to Which Applicable, § 237.

c. Object, Number and Location, § 238.

d. Lack of Equipment When Other Appliances Afford Equal Protection,
§ 239.

. Drawbars of Standard Height, §§ 240-243.

a. Requirements of Statute and Interstate Commerce Commission, § 240.
b. Vehicles to Which Applicable, § 241.

c. Variations in Height, § 242.

d. Devices to Maintain Height, § 243.
XIV TABLE OF CONTENTS.

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CHAPTER XXXIII.

INSPECTION AND REPAIR.

. Duty of Government Inspectors, § 244.

. Duty of Railroad, § 245.

. Establishment and Maintenance of Repair Points, § 246.
. Hauling Cars to Repair, §§ 247-251.

a. Under Original Act, §§ 247-248.
(1) Defects Developed in Transit, § 247.
-(2) Movement with Commercial Cars, § 248.
b. Under Amendment of 1910, §§ 249-251.
(1) Provision and Object of Amendment, § 249.
(2) Retroactive Operation, § 250.
(3) Movements Embraced under Amendment, § 251.

CHAPTER XXXIV.

NEGLIGENCE.

. As Result of Violation, § 252.

. Persons Protected by Statute, § 253.
. Negligence of Fellow Servants, § 254.
. Proximate Cause of Injury, § 255.

CHAPTER XXXV.

ASSUMPTION OF RISK.

. Abolished under Statute, § 256.
. Object in Abolishing Defense, § 257.
. Assumption of Risk and Contributory Negligence’ Distinguished, § 258.

CHAPTER XXXVI.

CONTRIBUTORY NEGLIGENCE.

. Available under Statute, § 259.

. Care Required of Employee, § 260.
. Failure to Use Appliances, § 261.

. Failure to Use Safer Method, § 262.
. Failure to Observe Rules, § 263.

CHAPTER XXXVII

PROCEEDINGS FOR PENALTY.

. Nature of Proceedings, § 264.
. Duty to Institute Proceedings, § 265.
1.
2.

wwe

TABLE OF CONTENTS. XV

CHAPTER XXXVIII.
JURISDICTION, VENUE AND REMOVAL OF CAUSE.

Jurisdiction and Venue, § 266.
Removal of Cause, §§ 267-271.
a. Because under Federal Law, § 267.
b. Necessity of Pleading Raising Federal Question, § 268.
c. Amendment of Pleading Raising Question, § 269.
d. Joint Actions—Separable Controversy, § 270.
e. Jurisdiction on Removal and Effect of Decision, § 271.

CHAPTER XXXIX.

LIMITATION OF ACTION, AND DEFENSES.

. Limitation of Actions, § 272.
. Defenses, § 273.

CHAPTER XL.

PLEADING.

. Actions to Recover Penalties, §§ 274-275.

a. Declaration or Complaint, § 274.
b. Plea or Answer, § 275.

. Actions for Damages, §§ 276-277.

a. Declaration or Petition, § 276.

. Plea or Answer, § 277.

CHAPTER XLI.

EviwENCE.

. Admissibility, § 278.

. Testimony of Inspectors, § 279.

. Relative Value of Positive and Negative Testimony, § 280.
. Burden and Sufficiency of Proof, §§ 281-283.

a. To Sustain Recovery of Penalty, § 281.
b. To Sustain Recovery of Damages, § 282.
c. To Sustain Defense, § 283.

. Variance, § 284.

CHAPTER XLII.

INSTRUCTIONS, VERDICT AND JUDGMENT.

. Instructions, § 285.

2. Verdict and Judgment, § 286.
XVI TABLE OF CONTENTS.

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apwonve

CHAPTER XUIII.

APPEAL AND ERROR.

. Presentation of Question Below, § 287.

. Sufficiency of Record for Appeal, § 288.

. Right of Review in Action for Penalties, § 289.

. Review by United States Supreme Court, §§ 290-291.

a. Judgments of Circuit Courts of Appeals, § 290.
b. Judgments of Highest State Courts, § 291.

. Judgment on Appeal, § 292.

The Hours of Service Act

 

CHAPTER XLIV.

Osyect, NATURE oF Duty, AND CONSTITUTIONALITY.

. Object and Purpose, § 288.
. Nature of Duty Imposed, § 289.
. Constitutionality, § 290.

CHAPTER XLV.

CONSTRUCTION AND OPERATION.

. Construction, § 291.

Operation on State Legislation, § 292.
Time of Taking Effect, § 293.

. Employer and Employee to Whom Applicable, § 294.
. Enforcement by Interstate Commerce Commission, § 295.

CHAPTER XLVI.

CoMPUTATION OF PERIODS.

. When Periods Begin, § 296.
. Effect of Temporary Relief, § 297.
. Changes in Class of Work, § 298.

CHAPTER XLVI.

‘

CLASSES OF SERVICE, EMPLOYEES AND OFFICES.

. Continuous and Aggregate Service, § 299.
. Classes of Employees, § 300.
. Classes of Offices, § 301.
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TABLE OF CONTENTS. XVII

CHAPTER XLVIII.

DEFENSES.

. In General, § 302.
. Operators in Case of Emergency, § 303.

. Any Employee in Cases of Casualty, Unavoidable Accident, Act of God, § 304.
. Delays from Unknown or Unforeseen Causes, § 305.

Members of Wrecking Crews, § 306.

. Effect of Failure to Relieve When Possible, § 307.

CHAPTER KLUX.

ACTIONS UNDER AcT,

. Nature of Proceedings for Penalty, § 308.
. Violation as Negligence, § 309.

. Evidence, § 310.

. Pleadings, § 311.

. Verdict and Judgment, § 312,

. Appeal and Error, § 313.

 

Appendixes.
APPENDIX A. es
Tue Emproyers’ Laasiaity Acts.
PAGE
ACE Of Jinte: 11> 190G aa visit. 5 dacsun ag o5 we Ad sa ielvnw ddugh Ox6 wots Ouueele ag adee end 653
Pet OF Aupril (22) 908 3-0 asic toner awa g ee sald ae p ae AoA bales Aas 654
Ameéndment of April 6, L940 g.5 cow eco de oem 2 295 Wa hes eww Sod mwlks Hamand ows 656
APPENDIX B.
THE Sarety APPLIANCE ACTS.
Act of March 2, 1893, as amended by Act of 1896........ 0... 00.0000. eee 657
Amendment of March. 2, 190865 nisi veasieens a ei eda vesls sweets s beees toed 659
Amendment of April 14, VIO. eee ee eee eee ee eee e teen eee 660
ORDERS OF INTERSTATE COMMERCE COMMISSION.
Fixing Percentage of Airbrakés.:sa.e.cnassscaevsa tems so wea ce sines eases 663
Fixing Standard Height of Drawhars........... ccc cceee eee e cence eee e eens 663
Designating Appliances under Act of 1910.......... ec ccc eee eee e eee ee 664
Illustrations of Appliances Designated............. cece cece ee eee eee nny 703

Fed Act—b
XVIII TABLE OF CONTENTS.

APPENDIX C.

Tue Hours oF Service Act.

Act Of Marchy 4. VOOR coat nang create gave aveniinece Wmars Rem aes aE Mend tocie aon snbeudaRwies 721
Rulings of Interstate Commerce Commission.............. 2s ee cece cece es 723

APPENDIX D.

Tue Borer Inspection Act.

IAC (OT LOT SAFE, MOT roa ves syn be aacseeier avn tate tae Xe eacont aged ake hed oat nes Gaede sess 727
Amendment of March 4, 1915321024 cous cess eeenswdaaw ones wae we meee ans 732

APPENDIX E.

Tur Asu Pan Act.
ACESOE: Miaiye BU. TOO esses dccus de cnn ecnaphag alata te hse eres turgid tease (ue dade xv ncemcena EE 733

INDEX cts: guaciees Stee seers cones ten cieee ven aeobads Hee eemedameeulae 735
Table of Cases

A

Adams Exp. Co. v. Croninger, 226 U.

- S. 491, 57 L. Ed. 314, 33 S. Ct. 148,
44 L. R.A, N. S., 257—p. 175. d

Aerkfetz v. Humphreys, 145 U. S. 418,
36 L. Ed. 758, 12 S. Ct. 835—p. 127.

Ahrens v. Chicago, etc, R. Co. 121
Minn. 335, 141 N. W. 297—pp. 151,
172, 271, 291, 336.

Alabama, Nashville, etc., R. Co. v.

— Smith v.

Alabama, etc., R. Co. v. Skotzy (Ala.),
71 So. 335—pp. 94, 124, 165, 300, 421.

—— v. Thompson, 200 U. S. 206, 216,
50 L. Ed. 441, 26 S. Ct. 161,4 Am. &
Eng. Ann. Cas. 1147—p. 258.

—— v. Tidwell (Ga.), 88 S. E. 939—pp.
327, 349, 358.

Alexander v. Great Northern R. Co.
(Mont.), 154 Pac. 914—pp. 81, 273,
304.

Allen v. Napier, 144 Ga. 38, 85 S. E.
1013—pp. 192, 386.

— Southern Pac. Co. v.

—— v. Tuscarora, etc., R. Co., 229 Pa.
97, 78 Atl. 34, 30 L R.A, N. S,
1096—pp. 442, 534, 535, 574.

Alling, Sherlock v.

American Exp. Co. v. United States,
212 U. S. 522, 533, 53 L. Ed. 635, 29
S. Ct. 315—p. 53.

American R. Co. v. Birch, 224 U. S.
547, 56 L. Ed. 879, 32 S. Ct. 603—pp.
37, 199, 200, 201, 203, 204, 210, 463.

— v. Coronas (C. C. A.), 230 Fed.
545—p. 230. _

—— v. Didricksen, 227 U. S. 145, 57
L. Ed. 456, 33 S. Ct. 224, 225, Ann.
Cas. 1914C, 128—pp. 12, 37, 190, 192,
217, 219, 221, 306, 371, 372, 373, 380,

- 382, 383, 463.

Anchor Line, Lancer v.

Anchors, Charleston, etc., R. Co. v.

Anderson v. Louisville, etc, R. Co.,
127 C. C. A. 277, 210 Fed. 689—pp.
34, 37, 201, 213, 261.

— Nashville, etc., Railway v.

— v. Oregon, etc, R. Co. (Utah),
155 Pac. 446, 448—pp. 55, 59, 60.

— St. Louis, etc., R. Co. v.

Andrews, Virginian R. Co. v.

Anest v. Columbia, etc, R. Co.
(Wash.), 154 Pac. 1100—pp. 72, 73,
126, 144, 154, 163, 180, 384, 441.

Anonymous, 6 Mod. 26, 27—p. 530.

Ansley, Southern R. Co, w.

 

Arizona Eastern R. Co. v. Bryan
(Ariz.), 157 Pac. 376—pp. 148, 149,
153, 154, 158, 165, 179, 240, 283, 286,
350, 358, 362, 368, 387, 416, 421.

—— v. Clark, 235 U. S. 669, 59 L. Ed.
415, 35 S. Ct. 210--pp. 233, 235, 260,
346.

 

—— v. Clark, 125 C. C. A. 305, 207
Fed. 817—p. 315.
Arkansas, Chicago, etc., R. Co. v.
St. Louis, etc., R. Co. v.
Arledge, Bell v.
Armbruster v. Chicago, etc, R. Co.,

166 Iowa 155, 147 N. W. 337—pp. 33,
37, 43, 44, 89, 135, 288, 326.

Armour Packing Co. v. United States,
209 U. S. 56, 81, 52 L. Ed. 681, 28 S.
Ct. 428—p. 53.

Arms, Milwaukee, etc., R. Co. v.

Arrighi, Denver, etc., R. Co. v.

Cole v.

— Cound v.

—— Giersch wv.

— Martin v.

——  v. Mills, 49 Tex. Civ. App. 349,
108 S. W. 480—pp. 5, 27.

v. Mills, 53 Tex. Civ. App. 359,
116 S. W. 852—p. 354.

—— Pankey v.

—— v. Pickens (Tex. Civ. App.), 118
S. W. 1133—p. 6.

—— v. Pitts, 44 Okla. 604, 145 Pac.
1148—pp. 17, 44, 66, 91, 304, 351.

—— Pyles v.

—— Rivera v.

—— v. Rudolph, 78 Kan. 695, 99 Pac.
224—pp. 538, 545, 547.

—— Saar v.

— Sandidge w.

—— v. Schroeder, 56 Kan. 731, 44 Pac.
1093—p. 575.

— Sells v.

— Spinden vw.

—— v. Swearingen, 239 U. S. 339, 36
S. Ct. 121, 122—pp. 173, 646, 647.
—— v. Tack (Tex. Civ. App.), 130 S.

W. 596—pp. 6, 36, 418, 419.

— United States v.

Atchison, etc., R. Co. v. United States,
96 C. C. A. 646, 172 Fed. 194, 27 L.
R. A., N. S.,-756—pp. 551, 593. /

—— wv. United States, 96 C. C. A. 664,
172 Fed. 1021—pp. 453, 456.

—— v. United States, 100 C. C. A. 534,
177 Fed. 114, 118—pp. 629, 631.

—  v. United States, 101 C. C. A.
140, 178 Fed. 12, 15, 21 Am. & Eng.
Ann. Cas. 819—p. 651.

 

XIX
XxX

TABLE OF CASES.

 

Atchison v. United States, 117 C. C. A.
341, 198 Fed. 637—pp. 484, 510.

v. United States (C. C. A.), 220
Fed. 748—p. 645.

Atlanta, etc., R. Co., Camp w.

Shugart v.

Atlantic City R. Co., Parker w.

Atlantic Coast Line R. Co., Ex parte.

— v. Jones, 9 Ala. App. 499, 63 So.
693—pp. 64, 85, 86, 237, 284, 288,

~ 290.

—— v. Jones, 12 Ala. App. 419, 67 So.
632—p. 37, 337.

— v. Riverside Mills, 219 U. S. 186,
31 S. Ct. 164, 55 L, Ed. 167, 31 L. R.
A. N. S., 7—pp. 52, 53.

—— Sears wv.

—— Smith wv.

— v. Whitney, 62 Fla. 124, 56 So.
937—pp. 236, 452, 554.

Atlantic, etc, R. Co., Burnett v.

Atlantic, etc., R. Co. v. Burnette, 239
U. S. 199, 36 S. Ct. 75—pp. 35, 231,
232.

—— Dutton v.

—— Ex parte.

v. Georgia, 234 U. S. 280, 58 L.

Ed. 1312, 34 S. Ct. 829—pp. 458, 459,

462.

Herring v.

— Howell v.

Mims v.

Mulligan v. 4

v. Newton (Va.), 87 S. E. 618—

121, 134, 331.

Parker v.

v. Reaves, 125 C. C. A. 599, 208

Fed. 141—p. 280.

Sears v.

—— Smith v.

v. State, 135 Ga. 545, 69 S. E. 7285,

733, 32 L. R. A. N. S., 20—p. 462.

Steele v.

— United States wv.

—— v. United States, 94 C. C. A. 35,
168 Fed. 175—pp. 442, 447, 450, 453,
551, 565, 567, 568.

—— v. United States, 128 C. C. A.
211 Fed. 903—pp. 605, 612, 613,
634, 635.

—— v. Whitney, 65 Fla. 72, 61 So.
179—pp. 318, 355, 361, 396, 417, 425,
457, 571, 590, 592.

Averill, Galveston, etc., R. Co. v.

B

Bailey v. Mosher (C. C.), 9& Fed.
225—p. 558.

Baker, Cleveland, etc., R. Co. v.

Balch, Blagge v.

Baltimore, The

Baltimore, etc., R. Co. v. Baugh, 149

 

 

 

PP.

 

 

 

 

281,
614,

223,

 

U. S. 368, 37 L. Ed. 772, 13 S. Ct.
914—pp. 34, 146, 174.

Baltimore, etc., R. Co., Brabham wv.

Darr wv.

v. Darr, 124 C. C. A. 565,

Fed. 751—p. 83.

Donegan v.

v. Evans, 110 C. C. A. 156, 188

Fed. 6—p. 211.

v. Gawinske, 116 C. C. A. 579,
197 Fed. 31, 34—p. 57.

—— v. Interstate Commerce Comm.,
221 U. S. 612, 55 L. Ed. 878, 31 S.
Ct. 621—pp. 605, 608, 609, 610, 611,
617, 620, 625, 648,

— v. Joy, 173 U. S. 226, 230, 43 L.
Ed. 677, 19 S. Ct. 387—p. 191.

—— Marshall v.

—— Martin wv.

—— wv. Miller (Ind.), 107 N. E. 545—
pp. 53, 58.

— Moffett v.

Morrison v.

— Newell v.

Robinson wv.

v. Smith (Ky. App.), 184 S. W.
1108, 1115—pp. 292, 330.

— United States v.

—— v. Whitacre, 124 Md. 411, 92 Atl.
1060—pp. 89, 117, 121, 153, 177, 178,
314, 319, 320.

Banks, Nashville, etc., R. Co. v.

Bankson v. Illinois Cent. R. Co.
C.), 196 Fed. 171—pp. 37, 258,
267, 272.

Barker v. Hannibal, etc., R. Co,
Mo. 86, 14 S. W. 280—p. 216.

v. Kansas City, etc. R. Co., 88
Kan. 767, 129 Pac. 1151, 43 L. R. A,

N. S., 1121—pp. 65, 153, 170, 182, 300,

312, 325, 407.

v. Kansas City, etc, R. Co., 94
Kan. 176, 146 Pac. 358—pp. 48, 65,
91, 167, 171, 182, 361.

Barlow v. Lehigh Valley R. Co., 158
App. Div. 768, 143 N. Y. S. 1053—
p. 92,

—— v. Lehigh Valley R. Co., 214 N.
Y. 116, 107 N. E. 814—pp. 65, 98,
111.

Barrett; Louisville, etc., R. Co. v.

Barrington, Missouri, etc., R. Co. v.
Basham v. Chicago, etc., R. Co. (Iowa),

154 N. W. 1019pp. 135, 165, 327,
330, 333, 398.

—— v. Chicago, etc., R. Co. (Iowa),
157 N. W. 192, 194—pp. 293, 204,

Baugh, Baltimore, etc., R. Co. v.
Baugham v. New York, etc, R. Co.

(U. S.), 36 S. Ct. 592—pp. 126, 135,
170, 185, 437,

Bay v. Merrill, etc., Lumber Co., 136
C. C. A. 277, 220 Fed. 295—pp. 15,
64,

 

204

 

 

 

 

(D.
266,

91

 

 
TABLE OF CASES.

XXI

 

Bay v. Merrill, etc., Lumber Co. (D.
C.), 211 Fed. 717, 720—pp. 15, 323.

Beaumont, etc., Railroad, State v.

Beeler v. Butte, etc., Develop. Co., 41
Mont. 465, 110 Pac. 528—p. 196.

Beezley, Gulf, etc., R. Co. wv.

Behrens, Illinois Cent. R. Co. v.

— v. Illinois, etc, R. Co. (D. C.),
192 Fed. 581—p. 34.

Bell v. Arledge, 135 C. C. A. 347, 219
Fed. 675—p. 424.

Bellingham, etc., R. Co., Gibson v.

Belt R. Co. v. United States, 93 C. C.
A. 666, 168 Fed. 542, 22 L. R. A., N.
S., 582—p. 469.

Bennett v. Lehigh Valley R. Co. (D.
C.), 197 Fed. 578—p. 111.

Southern Railway v.

— v. Southern Railway, 98 S. C. 42,
79S. E. 710-—-pp. 262, 313, 324, 356,
371.

Benson, Boston, etc., Railroad wv.

Berkshire R. Co., Hollenbeck vw.

Berwind-White Coal Min. Co. wv. Fir-
ment, 95 C. C. A. 1, 170 Fed. 151—
p. 322.

Bethune, Central, etc., R. Co. wv.

Bhymer, Wabash R. Co. v,

Bingham, Kopel vw.

Birch, American R. Co. v.

Bitondo v. New York, etc., R. Co., 163
App. Div. 823, 149 N. Y. S. 339—pp.
295, 309, 339.

Bixler v. Pennsylvania R. Co. (D. C.),
201 Fed. 553—pp. 202, 206, 230, 404.

Bjornsen v. Northern Pac. R. Co., 84
Wash. 220, 146 Pac. 575—pp. 117, 119,
646. ,

Black v. Charleston, etc., R. Co., 87 S.
C. 241, 69 S. E. 230, 31 L. R. A, N.
S., 1184—pp. 606, 637.

Blagge v. Balch, 162 U. S. 439, 40 L.
Ed. 1032, 16 S. Ct. 853-—-p. 228.

Blalack, Missouri, etc., R. Co. v.

Blevins, Ft. Smith, etc., R. Co. v.

Blumenthal v. Craig, 26 C. C. A. 427,
81 Fed. 320—p. 541.

Boatmen’s Bank v. Fritzlen, 68 C. C.
A. 288, 185 Fed. 650—p. 259.

Bogart v. New York, etc., R. Co. (App.
Div.), 157 N. Y. S. 420—pp. 21, 111.

Bolch v. Chicago, etc., R. Co. (Wash.),
155 Pac. 422—pp. 100, 165, 367.

Boldt v. Pennsylvania R. Co., 134 C.
C. A. 175, 218 Fed. 367—pp. 162, 170,
178, 184.

Bolton v. Georgia Pac. R. Co., 83 Ga.
659, 10 S. E. 352—p. 574.

Bombolis, Minneapolis, etc., R. Co. v.

——  v. Minneapolis, etc., R. Co., 128
‘Minn. 112, 150 N. W. 385—pp. 124,
126, 301, 310, 338.

Bond, Chicago, etc., R. Co. v.

Bonham, Cincinnati, etc, R. Co. v.

 

Boston, etc., Railroad, Caverhill v.

—— Corbett v.

—— v. Hurd, 47 C. C. A. 615, 108 Fed.
116, 56 L. R. A. 198—p. 575.

— Lombardo v.

—— Peek v.

—— Rice wv.

— Shannon w.

— Thomas vw.

Boston, etc., R. Co. v. Benson, 124 C.
C. A. 68, 205 Fed. 876—pp. 124, 179,
181, 317, 362, 363, 415, 416.

—— Carson wv.

— Tinkham v.

— United States v.

Boston, etc., R. Corp., Kearney v.

Bottoms v. St. Louis, etc., R. Co. (C.
C.), 179 Fed. 318—pp. 9, 37, 246.

Bouchard v. Central, etc, R. Co., 87
Vt. 399, 89 Atl. 475—pp. 271, 285,
288, 289.

Bougham v. New York, etc., R. Co.
(U. S.), 36 S. Ct. 592—p. 108.

Bower, Chicago, etc., R. Co. v.

—— v. Chicago, etc., R. Co., 96 Neb.
419, 148 N. W. 145—pp. 85, 181, 307,
368, 399.

Bowers v. Southern R. Co., 10 Ga.
App. 367, 73 S. E. 677—pp. 119, 139,
144, 153, 154, 170, 185, 304, 341, 342.

Boyd, Hansen v.

Boyle v. Pennsylvania R. Co. (D. C.),
221 Fed. 453—pp. 17, 18, 66, 421, 465,
466.

Brabham v. Baltimore, etc. R. Co.,
136 C. C. A. 117, 220 Fed. 35—p. 322.

Bradbury v. Chicago, etc., R. Co., 149
Iowa 51, 128 N. W. 1, 40 L. R. A,
N. S., 684—pp. 9, 30, 37, 217, 235,
236, 237, 270, 274, 275, 295, 296, 297,
309, 399.

Brady, Union Pac. R. Co. v.

Bramlett v. Southern R. Co., 98 S. C.,
319, 82 S. E. 501—pp. 38, 173, 361,
505, 571.

Braves uv. Chicago, etc., R. Co., 133 C.
C. A. 228, 217 Fed. 234—pp. 76, 111,
267, 294, 335.

Bresky v. Minneapolis, etc., R. Co.,
115 Minn. 386, 132 N. W. 387—pp.
99, 471, 473, 474, 571.

Bridge Proprietors v. Hoboken Co.
(U: S.), 1 Wall. 116, 143, 17 L. Ed.
571—p. 429.

Bright, Houston, etc., R. Co. wv.

Brinkmeier, Missouri Pac. R. Co. wv.

— v. Missouri Pac. R. Co., 224 U.
S. 268, 56 L. Ed. 758, 32 S. Ct. 412—
pp. 262, 572, 573, 603.

— v. Missouri Pac. R. Co., 81 Kan.
101, 105 Pac, 221—pp. 449, 452, 465,
574, 575, 576.

Bromberg, Mobile, etc., R. Co. v.
XXII

TABLE OF CASES.

 

Brooks v. Southern Pac. R. Co. (C.
C.), 148 Fed. 986—pp. 2, 4, 26, 27,
213.

Brothers, St. Louis, etc., R. Co. v.

Brown, Charleston, etc., R. Co. v.

Chicago, etc., R. Co. wv.

— v. Fletcher, 210 U. S. 82, 52 L.
Ed. 966, 28 S. Ct. 702—p. 210.

—— v. Massachusetts, 144 U. S. 573,
36 L. Ed. 546, 12 S. Ct. 757—p. 429.

St. Louis, etc., R. Co. wv.

Brucksshaw v. Chicago, etc., R. Co.
(Iowa), 155 N. W. 273—pp. 87, 93,
383, 414.

Bryan, Arizona Eastern R. Co. v.
Bucher v. Wisconsin Cent. R. Co., 139
Wis. 597, 120 N. W. 518—p. 369.
Buck v. Chesapeake Ins. Co. (U. S.),

1 Pet. 159, 7 L. Ed. 90—p. 350.

Buffalo, etc., R. Co., Schlemmer v.

Bunkley, Missouri, etc., R. Co. wv.

Burho v. Minneapolis, etc., R. Co., 121
Minn. 326, 141 N. W. 300—pp. 151,
162, 163, 401, 452, 495, 496, 502, 549,
578.

Burke v. Chicago, etc. R. Co. 131
Minn. 209, 154 N. W. 960—pp. 346,
350, 370, 423.

Burlington, etc., R. Co., Gilbert v.
Burnett v. Atlantic, etc., R. Co., 163 N.
C. 186, 79 S. E. 414—pp. 13, 38, 57.
— v. Spokane, etc., R. Co. (D. C.),
210 Fed. 94, 95—pp. 248, 257, 258,

259.

Burnette, Atlantic, etc., R. Co. wv.

Burtnett v. Erie R. Co., 159 App. Div.
712, 144 N. Y. S. 969—pp. 38, 44, 131.

Butler County, Oxley Stave Co. vw.

Butte, etc., Develop. Co., Beeler wv.

Buttfield v. Stranahan, 192 U. S. 470,
48 L. Ed. 525, 24 S. Ct. 349—p. 443.

Byram v. Illinois Cent. R. Co. (Iowa),
154 N. W. 1006, 1008—pp. 23, 24, 89,
144, 153.

 

 

Cc

Cain v. Southern R. Co. (C. C.), 199
Fed. 211, 213—pp. 28, 152, 190, 192,
364, 365, 371, 372, 373, 377, 387, 397.

Caldwell, Hutchinson Invest. Co. v.

Calhoun v. Central, etc., R. Go., 7 Ga.
App. 528, 67 S. E. 274—p. 244.

—— v. Great Northern R. Co. (Wis.),
156 N. W. 198—pp. 43, 192, 287, 370,
453, 505, 513.

California, Hurtado v.

Callahan, St. Louis, etc., R. Co. v.

Camas Prairie R. Co., Smith v.

Camp v. Atlanta, etc, R. Co. 100 S.
C. 294, 84 S. E. 825—pp. 272, 279,
291, 324, 352.

Campbell v. Canadian, etc., R. Co., 124
Minn. 245, 144 N. W. 772, 49 L. R.

 

A., N. S., 951—pp. 135, 140, 143, 302,
362.

Campbell v. Haverhill, 155 U. S. 610,
613, 39 L. Ed. 280, 15 S. E. 217—p. 562.

—— Rio Grande, etc.,’R. Co. v.

—— Spokane, etc., R. Co. v.

— v. Spokane, etc. R. Co. (C. C.),
188 Fed. 516—pp. 492, 509, 526, 527.
Canadian Pac. R. Co. v. Thompson
(C. C. A.), 232 Fed. 353, 356—pp. 65,

72, 185, 304.

Canadian, etc., R. Co., Campbell v.

Cantin v. Glen Junction Transfer Co.
(N. H.), 96 Atl. 303—pp. 303, 325,
326, 403.

Capital Trust Co. v. Great Northern
R. Co., 127 Minn. 144, 149 N. W.
14, L. R. A., 1915B, 708—pp. 196, 197.
197.

Carden v. Louisville, etc., Railroad,
101 Ky. 113, 39 S. W. 1027—p. 562.

Carnahan, Chesapeake, etc., R. Co. v.

Carolina, etc., Railroad v. Shewalter,
120 Tenn. 363, 161 S. W. 1136, Ann.
Cas. 1915C, 605—pp. 192, 195, 196.

Carolina, etc., R. Co.. Montgomery v.

Carolina, etc., Railway wv. Shewalter,
128 Tenn. 363, 161 S. W. 1136, Ann.
Cas. 1915C, 605—pp. 38, 365, 380, 381.

Carpenter v. Central Vermont R. Co.
(Vt.), 96 Atl. 373—pp. 44, 93, 294,
308, 311, 416.

—— wv. Kansas, etc. R. Co., 189 Mo.
App. 164, 175 S. W. 234—pp. 273,
359.

Carr, New York, etc., R. Co. v.

v. New York, etc. R. Co., 77
Misc. Rep. 346, 136 N. Y. S. 501—
p. 18. :

Carson v. Boston, etc., R. Co.,
Mass. 523, 42 N. FE. 112—p. 482.

Southern R. Co. v. \

—— v. Southern Railway, 68 S. C. 55,
46S. E. 525—p. 527.

Carter v. Kansas, etc, R. Co. (Tex.
Civ. App.), 155 S. W. 638—pp. 144,
147, 148, 154, 156, 161, 163, 169, 171,
179, 181, 186.

Louisville, etc., R. Co. v.

Casey, Texarkana, etc., R. Co. v.

Castle, Missouri Pac. R. Co. v.

Missouri, etc., R. Co. v.

Catts v. Phalen (U. S.), 2 How. 375,
382, 11 L. Ed. 306—p. 350.

Caverhill v. Boston, etc., Railroad, 77
N. H. 330, 91 Atl. 917—pp. 144, 145,
406.

Central Iowa R. Co., Kellow v.

Central Railroad, Colasurdo vw.

Central R. Co. v. Colasurdo, 113 C. C.
A. 379, 192 Fed. 901—pp. 4, 5, 19,
68, 69, 145, 152, 153, 179.

—— Moran v.

 

164

 

 

 
TABLE OF CASES.

XXIII

 

Central R. Co., Rounsaville v.

—— v. Young, 118 C. C. A. 465, 200
Fed. 359, 45 L. R. A, N. S., 1015—
pp. 117, 158, 179.

Central Vermont R. Co., Carpenter v.

—— Lynch v.

—— Niles v.

—— v. United States, 123 C. C. A.
308, 205 Fed. 40—p. 493.

—— White vw.

— v. White, 238 U. S. 507, 59 L. Ed.
1433, 35 S. Ct. 865—pp. 181, 262, 264,
283, 304, 305, 306, 329, 361, 362, 384,
415, 436.

Central, etc, R. Co. wv.
C. C. A. 528, 206 Fed.
177, 185.

— Bouchard v.

—— Calhoun v.

—— Carpenter v.

— Lynch wv.

— Niles v.

Snead vw.

—— United States v.

—— White wv.

Chadwick v. Oregon-Washington R.,
etc., Co., 74 Ore. 19, 144. Pac. 1165,
L. R. A. 1915C, 823—pp. 123, 154, 155,
315, 317, 391.

Charless, Northern Pac. R. Co. v.

Charleston, etc., Railway, Lyon v.

Charleston, etc., R. Co. v. Anchors, 10
Ga. App. 322, 73 S. E. 551—pp. 17,
18, 37, 68.

—— Black v.

—— v. Brown, 13 Ga. App. 744, 79 S.
E. 932—pp. 140, 153, 163, 286, 304,
306, 356, 416.

— Dunbar v.

—— Jones v.

——- Sanders v.

Bethune, 124
868; pp. 170,

 

——.v. Sylvester (Ga. App.), 86 S. E,

275—pp. 153, 168, 169, 170, 184, 284.
Checotah v. Hardridge, 31 Okla. 742,
123 Pac. 846—p. 421.

Cherpeski v. Great Northern R. Cu.,
128 Minn. 360, 150 N. W. 1091—pp.
69, 345.

Chesapeake Ins. Co., Buck v.

Chesapeake, etc., R. Co. v. Carnahan,
(U. S.), 36 S. Ct. 594—-pp. 242, 366,
368, 370.

— v. Carnahan (Va.), 86 S. E. 863,
865—pp. 239, 241, 289, 367, 368, 370,
401.

— v. Cockrell, 232 U. S. 146, 58 L.
Ed. 544, 34 S. Ct. 278 —-p. 255.

—— wv. Cooper, 168 Ky. 137, 181 S. W.
933—p. 417.

— Davis v.

— De Atley v.

— v. De Atley (U. S.), 36 S. Ct. 564
—pp. 129, 170, 182, 183, 186, 187, 262,
263, 350, 362, 432.

 

Chesapeake, etc., R. Co. v. Dixon, 179
U.S. 131, 45 L. Ed. 121, 21 S. Ct. 67—
p. 559.

— v. Dwyer, 157 Ky. 590, 163 S. W.
752—pp. 372, 384.

—— v. Dwyer, 162 Ky. 427, 172 S. W.
918—p. 374.

—— v. Gainey (U. S.), 36 S. Ct. 633—
pp. 242, 374.

—— Gibson v.

Jones v.

— Kelly vw.

—— v. Kelly (U. S.), 36 S. Ct. 630—
Pp. 242, 262, 365, 369, 371, 374, 375,
385, 398.

—— v. Kelly, 160 Ky. 296, 169 S. W.
736—pp. 136, 312, 374.

—— v. Kelly, 161 Ky. 655, 171 S. W.
185—pp. 235, 237, 239, 240.

—— v. Kornhoff, 167 Ky. 353, 180 S.
W. 523—pp. 240, 320, 374.

—— McCalley v.

— Nichols v.

— Powers v.

Chesapeake, etc., R. Co. v. Proffitt, 134

 

Cc. C. A. 37, 218 Fed. 23—pp. 179,
425.

—— v. Proffitt (U. S.), 36 S. Ct. 620
—p. 129.

—— v. Shaw, 168 Ky. 537, 182 S. W.
653, 657—pp. 324, 367.

Teel v.

—— Truesdell v.

United States v.

Chesapeake, etc, R. Co. v. United
States, 141 C. C. A. 439, 226 Fed.
683—p. 523.

—v. Walker, 159 Ky. 237, 167 S.
W. 128—pp. 129, 139.

Chesapeake, etc., Railway v. Shiflett
(Va.), 86 S. E. 860—pp. 117, 425.
Chesbrough v. Woodworth, 116 C. C.

A. 465; 195 Fed. 875—p. 440.

Chicago Junction R. Co. v. King, 94
Cc. C. A. 652, 169 Fed. 372—pp. 443,
458, 517, 528, 530, 535, 538, 541, 588.

— v. King, 222 U. S. 222, 56 L. Ed.
173, 32 S. Ct. 79—pp. 427, 599.

Chicago, etc., R. Co., Ahrens v.

v. Arkansas, 219 U. S. 453, 55 L.
Ed. 290, 31 S. Ct. 275—pp. 39, 40,
461, 462.

—— Armbruster v.

—— Basham v.

—— Bolch v.

— v. Bond (U. S.), 36 S. Ct. 403—

pp. 25, 54.

v. Bond (Okla.), 148 Pac. 103—~—

pp. 92, 128.

Bower v.

v. Bower (U. S.), 36 S. Ct. 624—
pp. 133, 134, 182.

—— Bradbury v.

 

 
XXIV

TABLE OF CASES.

 

Chicago, ete., R. Co., Bravis v.

v. Brown, 107 C. C. A. 300, 185

Fed. 80—pp. 443, 537, 547, 548.

v. Brown, 229 U. S. 317, 57 L.
Ed. 1204, 33 S. Ct. 840—pp. 164, 428,
499, 541, 586.

—— Brucksshaw v.

— Burke vw.

— Clark v.

—— v. Cosio (Tex. Civ. App.), 182 S.
W. 83—pp. 43, 121, 268, 271, 279, 287,
326.

— Crandall v.

—— Creteau v.

—— Cross wv.

— Curtice v.

—— Devine v.

— vw. Devine, 239 U. S. 52, 36 S. Ct.
27, 28—pp. 37, 394, 437, 438.

— Dodge v.

— Doichinoff v.

— Ewald v.

—— v. Felder (Okla.), 155 Pac. 529—
p. 327.

—— Fish v.

— Faiz v.

—— Gilbert v.

— Gray v.

—— v. Gray, 237 U. S. 399, 59 L. Ed.
1018, 35 S. Ct. 620—pp. 102, 418, 419.

— v. Hackett, 228 U. S. 559, 57 L.
Ed. 966, 33 S. Ct. 581—pp. 9, 11, 429.

— Hall vw.

— Hanson v.

— v. Harrington (U. S.), 36 S. Ct
517—pp. 63, 65, 92, 105, 106.

—— Hartman vw.

—— wv. Holliday (Okla.), 145 Pac. 786,
787—pp. 7, 27, 413.

—— Hubbard v.

Hulac v.

v. Industrial Board (Ill.), 113 N.

80—pp. 48, 103, 304, 325.

Jackson v.

—— Johnston wv.

—— Lindsay v.

— v. McBee (Okla.), 145 Pac. 331—
pp. 38, 44, 295, 324, 413.

— v. McCormick, ‘119 €. GC. A. 527,
200 Fed. 375, 45 L. R. A. N.S, 539—
pp. 153, 163, 205, 412.

— McCoullough v.

—— v. McGuire, 219 U. S. 549, 55 L.
Ed. 328, 31 S. Ct. 259—pp. 52, 53, 57.

—— Marshall v.

—— v. Mitchell (Ind. App.), 110 N. E.
78—p. 420.

— Molzoff v.

— O’Connor v.

— Owens v.

—— Patry wv.

—— v. Pearce (Ark.), 175 S. W. 1160
—pp. 55, 56.

—- v. Pontius, 157 U. S. 209, 39 L,
Ed. 675, 15 S. Ct. 585—pp. 9, 31.

 

 

E.

Chicago, etc., R. Co. v. Pullman South-
ern Car Co., 139 U. S. 79, 86, 35 L.
Ed. 97, 11 S. Ct. 490—p. 639.

—— Robertson v.

—  v. Rogers (Tex. Civ. App.), 150
S. W. 281—p. 413.

Rowlands v.

Ruck wv.

Schweig v.

Siegesmund w.

v. Solan, 169 U. S. 133, 42 L. Ed.
688, 18 S. Ct. 289—p. 35.

— State vw.

—— v. State, 86 Ark. 412, 111 S. W.
456—p. 39.

—— Stearns v.

—— uv. Steele (Ind.), 108 N. E. 4—pp.
76, 77, 418, 420.

—— Stephens v.

—— Strauser v.

—— Sullivan v.

—— Sweet v.

—— Thomas vw.

— Tralich v.

v. Trout (Tex. Civ. App.), 152 S.

1137, 1139—pp. 15, 418, 422.

United, States v.

v. United States, 220 U. S. 559, 55
L. Ed. 582, 31 S. Ct. 618—pp. 449,
453, 454, 455, 456, 457, 494, 499, 513,
527, 551, 552, 593.

—- v. United States, 91 C. C. A. 373,
165 Fed. 423, 20 L. R. A, N. S., 473—
pp. 453, 456, 472, 473, 475, 514, 520.

— v..United States, 93 C. C. A. 450,
168 Fed. 236, 21 L. R. A. N. S., 690—
pp. 452, 477, 518, 519.

—— v. United States, 95 C. C. A. 642,
170 Fed. 556—p. 552.

—— v. United States, 116 C. C. A.
196 Fed. 882—pp. 491, 492, 493,

—— v. United States, 127 C. C. A.
211 Fed. 12—pp. 466, 491, 493,
512, 523, 524, 589.

—— v. United States, 141 C. C.-A.
226 Fed. 27—pp. 632, 633.

— Voelker v.

v. Voelker, 65 C. C. A. 226, 129
Fed. 522, 70 TR. A, 264—pp. 99, 447,
472, 495, 496, 497, 526, 536, 573, 590,
592.

—— Wagner v.

—— v. Wagner, 239 U. S. 452, 36 S.
Ct. 135—pp. 20, 53, 54, 57, 436.

—— v.’ Walters, 217 Til. 87, 75 N. E,
441—pp. 452, 458, 514, 541, 542, 550,
578, 579.

—— v, Walters, 120 Ill. App. 152—p.
549.

— Wright vw.

—— v. Wright, 239 U. S. 548, 36 S. Ct.

185—pp. 37, 44, 64, 85, 86, 124, 131,
419.

 

|

W.

444,
508.

438,
511,

135,

 

 

—— Zavitovsky v,
TABLE OF CASES.

 

XXV
Choctow, etc., R. Co. v. McDade, 191] Clark, United States v.
U.S. 64, 48 L. Ed. 96, 24 S. Ct. 24] Clarke, Cincinnati, etc, R. Co. v.
pp. 181, 537, 539. Claybourne, Cincinnati, etc., R. Co. v.

— Suttle v.

Chojnacky, Galveston, etc., R. Co. wv.

Cincinnati, etc., R. Co. v. Bonham, 130
Tenn. 435, 171 S. W. 79—pp. 74, 202,
210, 214, 216.

v. Clarke, 169 Ky. 662, 185 S. W.
94—pp. 37, 41, 102, 240, 266, 338, 351,
416.

Cincinnati, etc., R. Co. v. Claybourne,
169 Ky. 315, 183 S. W. 903—pp. 194,
240, 384.

—— Glenn v.

—— v. Goldston, 156 Ky. 410, 161 S.
W. 246—pp. 129, 177, 179, 182, 188,
304, 355, 362.

— v. Goode, 155 Ky. 153, 159 S. W.
695—pp. 93, 439.

—— v. Goode, 163 Ky. 60, 173 S. W.
329—pp. 157, 291, 292, 388.

—— v. Goode, 169 Ky. 102, 183 S. W.
264—pp. 396, 401, 424.

— v. Gross (Ind. App.), 111 N. E.
653—pp. 170, 177, 275, 278, 287, 315,
345, 348, 387, 408.

— Helm w.

—— v. Hill, 161 Ky. 237, 170 S. W. 599
—p. 120.

— v. Nolan, 161 Ky. 205, 170 S. W.
650—pp. 132, 133, 366.

—— vu. Nolan, 167 Ky. 11, 179 S. W.
1046—pp. 153, 402.

— Osborne vw.

—— Sharp v.

— v. Swann, 160 Ky. 458, 169 S. W.
886, 888—pp. 120, 128, 153.

—— Thompson v.

—  v. Tucker, 168 Ky. App. 144, 181
S. W. 940—pp. 37, 69, 270, 277, 282,
298, 307, 339, 406. .

—- v. Wilson, 157 Ky. 460, 163 Ss. W.
493, 51 L. R. A., N. S., 308—p. 226.
—  v. Wilson, 161 Ky. "640, 171 S. W.

430—pp. 144, 148, 149.

Cincinnati, etc., Railway, Patton v.

Citizens’ St. R. Co., City R. Co. v.

City R. Co. v. Citizens’ St. R. Co., 166
U. S. 557, 41 L. Ed. 1114, 17 S. Ct.
653—p. 254.

Claflin v. Houseman, 93 U. S. 130, 141,
23 L. Ed. 833—p. 262.

Clampitt, St. Louis, etc. R. Co. v.

Clark, Arizona, etc., R. Co. v.

v. Chicago, etc., R. Co. (Iowa), 152
N. W. 635—pp. 77, 129.

—  v. Erie R. Co. (D. C.), 230 Fed.
478, 483—pp. 151, 170, 172, 179, 184,
417, 531, 534, 538, 586.

— George Vv

—— v. Keith, 106 U. S. 464, 465, 27 L.
Ed. 302, 1 S. Ct. 568—p. 424.

——v, Southern Pac. Co. (C. C.), 175
Fed. 122, 126—pp. 233, 246, 261, 271,
281.

 

 

| Cooper, Chesapeake, etc.,

 

Cleveland, etc., R. Co. v. Baker, 33 C.
C. A. 468, 91 Fed. 224, 63 U. S. App.
553—pp. 538, 540.

—— v. Curtis, 134 Ill. App. 565—p. 539,

—— Narramore v.

— wv. Public Service Comm. (Ind.),
108 N. E. 515—p. 460.

—— Steckstor vw.

Coal, etc., R. Co. v. Deal (C. C. A.), 231
Fed. 604, 607—pp. 73, 121, 134, 185.

—— Findley v.

Cockrell, Chesapeake, etc., R. Co. v.

Coe vw. Errol, 116 U. S. 517, 29 L. Ed.
715, 6 S. Ct. 475—p. 64.

Coke, St. Lous, etc., R. Co.

Colasurdo v. Central aia (ec Cy
180 Fed. 832—pp. 5, 18, 19, 20, 124,
147, 151, 181, 234, 246.

—— Central R. Co. w.

Cole v. Atchison, etc., R. Co., 92 Kan.

132, 139 Pac. 1177—pp. 37, 41, 101,
266, 407, 408, 419.

—— v. Atchison, etc., R. Co. (Kan.),
155 Pac. 949—p. 407.

— Pennsylvania Co. vw.

Coleman v. Illinois Cent. R. Co.

(Minn.), 155 N. W. 763—p. 452.
Collins v. Pennsylvania R. Co., 163
App. Div. 452, 148 N. Y. S. 777—pp.
126, 225, 322, 373, 384.
Stone-Webster Engineering Corp.

Walker v.

Colorado Mid. R. Co., United States v.

Colorado, etc., R. Co., United States v.

Columbia, etc., R. Co., Anest v.

— v. Sauter (C. C. A.), 223 Fed. 604
—pp. 72, 170, 171, 177, 184.

—— Thomson v.

Commercial Milling Co., Western Un-
ion Tel. Co. v.

Commonwealth,
Bridge Co. v.

Conarty, St. Louis, etc., R. Co. v.

Conley, St. Louis, etc., R. Co. wv.

Connelley v Pennsylvania R. Co., 119
C. C. A. 392, 201 Fed. 54, 56, 47 L.
R. A., N. S., 867—p. 178.

Cook, Kansas, etc., R. Co. v.

R. Co. v.

Copeland, Ft. Worth, etc., R. Co. v.

Copper River, etc, R. Co. v. Heney,
128 C. C. A. 131, 211 Fed. 459—pp.
15, 37, 136, 143, 153, 268, 269, 353.

—- v. Reed, 128 C. C. AL 39, 211 Fed.
111—pp. 328, 352, 353, 384.

Coram, Ingersoll v.

Corbett v. Boston, etc., Railroad, 219
Mass. 351, 107 N. E. 60—pp. 35, 37,
40, 41, 84, 202, 238, 265, 266, 271, 403,
405.

Cornell Co. v. Ward, 93 C. C. A. 473,
168 Fed. 51, 52—p. 211.

 

UV

 

Covington, etc.,
XXVI

TABLE OF CASES.

 

Coronas, American R. Co. v.

Cory v. Lake Shore, etc., R. Co. (D.
C.), 208 Fed. 847—pp. 37, 300, 302.

Cosio, Chicago, etc., R. Co. v.

Couch v. Steel, 3 El. & Bl. 402, 411, 23
J. L. Q. B. N.S, 121, 125,2 C. L.
R. 940, 18 Jur. 515, 2 Week. Rep. 170
—p. 530.

Cound wv. Atchison, etc., R. Co. (C. C.),
173 Fed. 527—pp. 9, 12, 36, 37, 233,
271, 275, 337.

Cousins wv. Illinois Cent. R. Co., 126
Minn. 172, 148 N. W. 58—pp. 78, 144.

Covington, etc., Bridge Co. v. Com-
monwealth, 154 U. S. 204, 38 L. Ed.
962, 14 S. Ct. 1087—p. 614.

Craft, St. Louis, ete., R. Co. v.

Craig, Blumenthal v.

Crain, General Oil Co. vw.

Crandall v. Chicago, ete, R. Co. 127
Minn. 498, 150 N. W. 165—pp. 20, 93,
94, 132, 139, 140. ’

Creteau v. Chicago, etc, R. Co., 113
Minn. 418, 129 N. W. 855—p. 336.

Crockett, Southern R. Co. v.

Croninger, Adams Exp. Co. v.

Cross v. Chicago, etc., R. Co., 191 Mo.
App. 202,-177 S. W. 1127—pp. 102,
153, 174, 175, 176, 391, 393.

—— vw. Chicago, etc., R. Co. (Mo.), 186
S. W. 1130—pp. 153, 169, 170.

Culp v. Virginian R. Co. (W. Va.), 87
S. E. 187—pp. 117, 162, 284, 285, 304,
307, 316, 322, 323, 332, 349, 360, 371.

Curtice v. Chicago, etc., R. Co. (Wis.),
156 N. W. 484—pp. 287, 291, 293.

Curtis, Cleveland, etc., R. Co. v.

D

Dacey v. Old Colony R. Co., 153 Mass.
112, 26 N. E. 437—p. 482.

Daly v. Illinois Cent. R. Co., 170 Ill.
App. 185—p. 534.

Darr, Baltimore, etc., R. Co. wv.

v. Baltimore, etc., R. Co. (D. C.),
197 Fed. 665—p. 83.

Davide, San Pedro, etc. R. Co. v.

Davidson v. New Orleans, 96 U. S. 97,
24 L. Ed. 616—p. 240.

Davis v. Chesapeake, etc., R. Co., 166
Ky. 490, 179 S. W. 422—pp. 117, 122,
170, 182, 189.

—— Georgia Pac. R. Co. vw.

Dawson, St. Louis, etc. R. Co. v.

Day v. Kelly, 50 Mont. 306, 146 Pac.
930—p. 305.

Deal, Coal, etc., R. Co. v.

v. Coal, ete, R. Co. (D. C.), 215
Fed. 285—p. 73.

De Atley, Chesapeake, etc, R. Co. v.

v. Chesapeake, etc, R. Co. (D.

C.), 201 Fed. 591—pp. 36, 37, 122,

123, 245, 248, 249, 253.

v, Chesapeake, etc, R. Co. 147

Ky. 315, 144 S. W. 95—>p. 248.

 

 

 

 

 

DeGoer, United States v.

Delano, McCracken v.

v. Roberts (Mo. App.), 182 S. W.
T71—pp. 158, 348, 350, 358, 369, 421.

—— v. United States, 136 C. C. A. 243,
220 Fed. 635, 636—pp. 605, 613, 625,
646.

Delaware, etc., Co., Parsons v.

 

 

Delaware, etc., Railroad, Pedersen v.

Delaware, etc., R. Co., Shanks v.
Troxell v.

—— Willever v.

—— v. Yurkonis, 238 U. S. 439, 59 L.
Ed. 1397, 35 S. Ct. 902—p. 42”.

—— v. Yurkonis, 137 C. C. A. 23, 220
Fed. 429—pp. 37, 64, 234, 288, 289.

Delk v. St. Louis, etc, R. Co., 220 U.
S. 580, 55 L. Ed. 590, 31 S. Ct. 617,
14 Am. & Eng. Ann. Cas. 233—pp.
100, 452, 455, 457, 471, 472, 477, 495,
526, 539, 540, 541, 594, 604.

Denahy, Missouri, etc., R. Co. v.

Dennick v. Railroad Co., 103 U. S. 11,
26 L. Ed. 439—p. 211.

Denny, Sayward v.

Denoyer v. Railway Transfer Co., 121
Minn. 269, 141 N. W. 175—pp. 130,
165, 166, 270, 271, 336, 352.

Denver, etc., R. Co. vw. Arrighi, 63 C.
C. A. 649, 129 Fed. 347—pp. 534, 538,
539, 543, 544, 604.

v. Arrighi, 72 C. C. A. 400,

Fed. 67—pp. 541, 542, 544.

Felt v.

—— Lewis v.

—— Thayer v.

United States v.

Detroit City Railway v. Mills,
Mich. 634, 48 N. W. 1007—p. 482.

Detroit United Railway, Ely v.

Detroit, etc, R. Co., Evans v.

Gaines v.

Hollingshead wv.

Smith wv.

v. State, 11 O. C. C, N. S., 482,
21-31 O. C. D. 20—pp. 460, 594.

De Valle Da Costa, Southern Pac.
Co. v.

Devine, Chicago, etc., R. Co. v.

v. Chicago, etc, R. Co. 259 Ill.
449, 102 N. E. 803—pp. 464, 498, 469,
531, 533.

—— v. Chicago, etc, R. Co., 266 IIl.
248, 107 N. E. 595—pp. 98, 144, 147,
347, 350, 361, 394, 411,

Dewberry v. Southern R. Co. (C. C.),
175 Fed. 307—pp. 9, 37, 201, 203, 204.

Didricksen, American R. Co. v.

Dillon v. Great Northern R. Co., 38
Mont. 485, 100 Pac. 960—p. 196.

Dinsmore v. Racine, etc. R. Co., 12
Wis. 649—p. 467.

Dixon, Chesapeake, etc., R. Co. v.
Dodge v. Chicago, etc. R. Co., 164

 

141

 

 

85

 

 

 
TABLE OF CASES.

Iowa 627, 146 N. W. 14—pp. 20, 23,
531, 532.

Dodge v. North Hudson (C. C.), 177
Fed. 986—p. 211.

Doherty, Illinois Cent. R. Co. vw.

Doichinoff v. Chicago, ete, R. Co.
(Mont.), 154 Pac. 924—pp. 156, 161,
284, 290, 327, 329, 330, 358, 384.

Donaldson v. Great Northern R. Co.
(Wash.), 154 Pac. 133—pp. 133, 240,
241, 342, 398, 425.

Donat, Pennsylvania Co. v.

Donegan v. Baltimore, etc., R. Co., 91
C. C. A. 555, 165 Fed. 869—pp. 452,
456, 500, 532, 548.

.Dooley v. Seaboard, etc., R. Co., 163 N.
C. 454, 79 S. E. 970—pp. 33, 218, 221,
222, 371, 372, 380, 381, 382.

Dowd vw. Erie R. Co., 70 N. J. L. 451,
455, 57 Atl. 248, 16 Am. Neg. Rep. 122
—p. 185.

Downey, Washington, etc., R. Co. v.

Duke, St. Louis, etc., R. Co. v.

— wv. St. Louis, etc, R. Co. (C. C.),
172 Fed. 684—pp. 377, 295, 397, 406,
410, 411.

Duluth, etc., R. Co., Graber v.

Morris v.

Dunbar v. Charleston, etc., R. Co. (C.
C.), 186 Fed. 175—p. 224.

Dungan v. St. Louis, etc., R. Co. 178
Mo. App. 164, 165 S. W. 1116—pp.
202, 208, 313, 349.

Dunlap v. Northeastern R. Co., 130 U.
S. 649, 32 L. Ed. 1058, 9 S. Ct. 647—
p. 186.

Dutton v. Atlantic, etc., R. Co. (S. C.),
88 S. E. 263—pp. 105, 142, 263, 341,
406,

Duvall, Seaboard Air Line Railway v.

—— v. Seaboard Air Line Railway, 152
N. C. 524, 67 S. E. 1008—pp. 115, 116,
323.

Dwyer, Chesapeake, etc., R. Co. v.

E
Earnest, Norfolk, etc., R. Co. v.
Easter v. Virginian R. Co. (W. Va.), 36
S. E. 37—pp. 22, 36, 38, 124, 144, 146,
154, 160, 237, 284, 349, 395, 414, 425.
Eastern R. Co. v. Ellis (Tex. Civ.
App.), 153 S. W. 701—pp. 38, 199, 202,
214, 277.

 

Egan, Illinois Cent. R. Co. v.

Elder, International, etc., R. Co. v.

Elgin, etc., R. Co. v. United States, 142
Cc. C. A. 107, 227 Fed. 411, 413—p.

621.

Elliott v. Illinois Cent. R. Co. (Miss.),
71 So. 741—pp. 70, 144, 145.

Ellis, Eastern R. Co. v.

—— v. Louisville, etc., R. Co., 155 Ky.
745, 160 S. W. 512—pp. 156, 159.

XXVIT

 

El Paso, etc., Co. v. La Londe (Tex.),
184 S. W. 498—p. 21.

El Paso, etc., R. Co. v. Gutierrez, 215 U.
S. 87, 54 L. Ed. 106, 30 S. Ct. 21—pp.
3, 4, 5, 6, 7, 9, 12, 20, 27, 28, 36, 37, 56.

—— v. Gutierrez, 102 Tex. 378, 117 S.
W. 426—p. 6.

—— v. Gutierrez (Tex. Civ. App.), 111
S. W. 159—p. 6.

Ely v. Detroit United Railway, 162 Mich.
287, 127 N. W. 259—p. 196. >

Employers’ Liability Cases, The

Eng v. Southern Pac. R. Co. (D. C.),
210 Fed. 92, 93—pp. 68, 74, 77, 248.

Ennis, Midland Valley R. Co. v.

Erie R. Co., Burtnett v.

Clark v.

Dowd vw.

Grybowski v.

—-— v. Jacobus, 137 C. C. A. 151, 221
Fed. 335—pp. 16, 17, 106, 107, 108, 163,
187, 302.

—  v. Kennedy, 112 C. C. A. 76, 191
Fed. 332, 41 L. R. A., N. S., 123—»np.
108, 261, 271, 272, 273, 300, .335, 336,
353, 354, 355.

—— v. New York, 233 U. S. 671, 58 L.
Ed. 1149, 34 S. Ct. 756, 52 L. R.A,
N. S., 266, Ann. Cas. 1915D, 138—pp.
614, 615, 616, 618.

—. Norton v.

—— People v.

— v. Purdy, 185 U. S. 148, 46 L. Ed.
487, 22 S. Ct. 605—p. 429.

—— Rosney v.

v. Russell, 106 C. C. A. 160, 183
Fed. 722, 33 L. R. A., N. S., 800—pp.
471, 475, 477, 532, 541, 588.

— v. Solomon, 237 U. S. 427, 59 L.
Ed. 1033, 35 S. Ct. 648—p. 603.

—— United States v.

—— v. United States, 116 C. C. A. 649,

197 Fed. 287—pp. 483, 487.

v. Van Buskirk (C. C. A.), 228

Fed. 489—p. 102.

v. Welsh, 89 O. St. 81, 105 N. E.

189—pp. 38, 106, 107, 271, 295, 296, 304,

308, 352.

Winfield v.

Errol, Coe v.

Erving, Sweeney v.

Evans, Baltimore, etc., R. Co. v.

—— wv. Detroit, etc., R. Co., 181 Mich.
413, 148 N. W. 490—p. 125.

Ewald wv. Chicago, etc., R. Co., 70 Wis.
420, 36 N. W. 12, 591, 5 Am. St. Rep.
178—p. 113.

Ex parte Atlantic Coast Line R. Co.,
190 Ala. 132, 67 So. 256—pp. 37, 41,
288, 290, 337.

Ex parte Roe, 234 U. S. 70, 58 L. Ed.
1217, 34 S. Ct. 722—p. 257.

Ex parte Wisner, 203 U. S. 449, 51 L.

 

 

 

 

 

Ed. 264, 27 S. Ct. 150—p. 246.
XXVIII

TABLE OF CASES.

 

F

Fairchild v. Pennsylvania R. Co. (App.
Div.), 155 N. Y. S. 751—p. 99.

Farley v. New York, etc. R. Co., 87
Conn. 328, 87 Atl. 990—pp. 152, 225,
282, 310, 321, 371, 372.

—— v. New York, etc., R. Co., 88 Conn.
409, 91 Atl. 650—pp. 170,-175, 177,
182, 192. :

Farmers’ Trust, etc., Co., Pittsburgh,
etc, R. Co. wv.

Farmers,’ etc., Co.,
etc., R. Co. zw.

Farrell v. Pennsylvania R. Co., 87 N.
J. L. 78, 93 Atl. 682—p. 483.

Farrugia v. Philadelphia, etc. R. Co.,
233 U. S. 352, 58 L. Ed. 996, 34 S.
Ct. 591—p. 426.

Feaster v. Philadelphia, etc., R. Co. (D.
C.), 197 Fed. 580—pp. 67, 115.

Felder, Chicago, etc, R. Co. v.

Felt v. Denver, etc., R. Co., 48 Colo.
249, 110 Pac. 215, 21 Am. & Eng.
Ann. Cas. 379—pp. 442, 465, 472, 473,
474, 475, 573, 587.

Ferebee, Norfolk Southern R. Co. v.

Norfolk, etc., R. Co. v.

— v. Norfolk, etc, R. Co., 163 N. C.
351, 79 S. E. 685, 52 L. R. A N.S,
1114—pp. 132, 140, 150, 318, 367.

—— v. Norfolk, etc., R. Co., 167 N. C.
290, 83 S. E. 360—pp. 132, 140, 150,
311, 315, 318, 319, 320, 322, 343, 346,
348, 349, 352, 353, 367, 369.

Fernette v. Pere Marquette R. Co., 175
Mich. 653, 141 N. W. 1084, 144 N. W.
834—pp. 41, 43, 87, 270, 277, 283, 291,
339.

Fesmire, Missouri, etc., R. Co. v.

Finan, South Covington, etc., R. Co. v.

Findley v. Coal, etc., R. Co. (W. Va.),
87 S. E, 198—pp. 23, 63, 88, 270, 274,
293, 302, 308, 337, 339, 341.

rane Berwind-White Coal Min.

0. v.

Fish v. Chicago, etc. R. Co., 263 Mo.
106, 172 S. W. 340—pp. 53, 126, 136,
137, 153, 167, 168, 169, 171, 176, 182, 236,
248, 304.

Fitchburg R. Co., Fully v.

Fithian, St. Louis, etc, R. Co. v.

—— v. St. Louis, etc, R. Co. (C. C.),
188 Fed. 842—pp. 201, 202, 203.

Fitzgerald, Missouri Pac. R. Co. v.

Flaiz uv. Chicago, etc, R. Co. (Mo.
App.), 184 S. W. 917—p. 58.

Flanders v. Georgia, etc., R. Co., 68 Fla.
479, 67 So. 68—pp. 10, 37, 40, 43, 44,
97, 202, 203, 214.

Flas v. Illinois Cent. R. Co. (D. CG),
229 Fed. 319—p. 254.

Fleming, Louisville, etc., R. Co. v.
v. Norfolk, etc., R. Co., 160 N. C.
196, 76 S. E, 212, 48 L. R.A, N.S,

Sav. Pittsburgh,

 

 

 

393—pp. 26, 38, 151, 153, 176, 238, 262,
283, 297, 299, 308, 309.

Fletcher, Brown v.

v. South Dakota Cent. R. Co. .(S.
Dak.), 155 N. W. 3—pp. 151, 152, 154,
157, 158, 160, 351, 353, 356, 548, 586,
591.

Flippo, Kansas, etc., R. Co. v.

Florida, etc., R. Co., United States v.

Fogarty v. Northern Pac. R. Co., 74
Wash. 397, 133 Pac. 609—pp. 154, 155,
165, 166, 224, 371, 374, 384.

—— v. Northern Pac. R. Co., 85 Wash.
90, 147 Pac. 652—pp. 192, 322, 371,
373.

Ft. Smith, etc., R. Co. v. Blevins, 35
Okla. 378, 130 Pac. 525—pp. 70, 244,
251, 278.

Ft. Worth, etc, R. Co. v. Jones (Tex.
Civ. App.), 182 S. W. 1184—pp. 207,
420.

— v. Perryman (Tex. Civ. App.), 158
S. W. 1181, 1182—p. 20.

—— v. Copeland (Tex. Civ. App.), 164
S. W. 857—pp. 171, 178, 439.

—  v. Stalcup (Tex. Civ. App.), 167
S. W. 279—pp. 87, 130, 163, 271, 277,
320, 331, 333, 376, 398. z

Freeman, Missouri, etc., R. Co. v.

v. Powell (Tex. Civ. App.), 144 S.
W. 1033—pp. 88, 151, 171, 173, 175.
—— v. Swan (Tex. Civ. App.), 143 S.

W. 724—p. 31.

Friday v. Santa Fe Cent. R. Co., 16
N. Mex. 434, 120 Pac. 316—p. 27.

Fritzlen, Boatmen’s Bank v.

Fulgham, Midland Valley R. Co. v.

—— v. Midland Val. R. Co. (C. CG),
167 Fed. 660—pp. 9, 13, 14, 34, 37, 40,
190, 191, 192, 195, 201, 364,

— Midland, etc. R. Co. vw.

Fuller, Union Pac. R. Co. v.

Fulton, Mining Co. v.

G

Gableman v. Peoria, etc, R. Co., 179
U. S. 335, 337, 45 L. Ed. 220, 21 S.
Ct. 171—p. 557.

Gadd, Southern R. Co. v.

Gaines v. Detroit, etc, R. Co, 181
Mich. 376, 148 N. W. 397—pp. 63, 83.

Gainesville Mid. Railway v. Vandiver,
141 Ga. 350, 80 S. E. 997—pp. 270,
271, 273, 291, 292, 293.

Gainey, Chesapeake, etc., R. Co. v.

Galveston, etc., R. Co. v. Averill (Tex.
Civ. App.), 1836 S. W. 98—p. 354.

—— v. Chojnacky (Tex. Civ. App.),
163 S. W. 1011—pp. 104, 280.

—— v. Kurtz (Tex. Civ. App.), 147 S.
W. 658—pp. 418, 453, 456, 457.

—— v. United States, 105 C. C. A. 422,
183 Fed. 579—pp. 453, 593.

—— wv. United States, 118 C. C. A. 339,
199 Fed. 891—pp. 521, 523, 592.

 

 
TABLE OF CASES,

XXIX

 

Garrett v. Louisville, etc, R. Co., 235
U. S. 308, 59 L. Ed. 242, 35 S. Ct. 32
—pp. 190, 191, 192, 226, 260, 439.

—— v. Louisville, etc, R. Co. 117 C.
C. A. 109, 197 Fed. 715—pp. 226, 259,
271, 276, 306, 371, 373.

Garside, New York Transp. Co. v.

Gawinske, Baltimore, etc. R. Co. v.

Geddes, United States v.

Gee v. Lehigh Valley R. Co. 148 N.
Y. S. 882, 163 App. Div. 274—p. 38.

—— v. Lehigh Valley R. Co., 163 App.
Div. 274, 148 N. Y. S. 274, 148 N. Y.
S. 882—pp. 123, 152, 153.

Geer, St. Louis, etc, R. Co. wv.

Gekas v. Oregon-Washington R., etc.,
Co., 75 Ore. 243, 146 Pac. 970—pp.
134, 144, 390.

General Oil Co. v. Crain, 209 U. S. 211,
52 L. Ed. 754, 28 S. Ct. 475—p. 64.
George v. Clark, 29 C. C. A. 374, 85

Fed. 608—p. 541.

Georgia, Atlantic, etc, R. Co. v.

Hennington v.

Georgia Pac. R. Co., Bolton v.

v. Davis, 92 Ala. 300, 9 So. 252,

25 Am. St. Rep. 47—p. 571.

Flanders v.

German Nat. Bank, Speckart v.

Gibson v. Bellingham, etc., R. Co. (D.
C.), 213 Fed. 488—pp. 235, 240, 241,
243, 244, 251, 252, 262,

v. Chesapeake, etc., R. Co., 131 C.
C. A. 332, 215 Fed. 24—p. 144.

Giersch v. Atchison, etc., R. Co. (Kan.),
158 Pac. 54—pp. 203, 296, 309, 312.

Gila Valley, etc, R. Co. v. Hall, 232
U. S. 94, 101, 58 L. Ed. 521, 524, 34
S. Ct. 229, 231—pp. 177, 183, 185.

Gilbert v. Burlington, etc., R. Co., 63
Cc. C. A. 27, 128 Fed. 529—pp. 494,
545, 546, 547. ; :

—— vu. Chicago, etc, R. Co..(C. C.),
123 Fed. 832—p. 547.

Gillis v. New York, etc., R. Co. (Mass.),
113 N. E. 212—p. 158.

‘Gilmer, Kennon v.

Glen Junction Transfer Co., Cantin v.

Glenn v. Cincinnati, etc, R. Co. 157
Ky. 453, 163 S. W. 461, 462—pp. 170,
171, 175, 184.

Glinn, Pittsburgh, etc., R. Co. v.

Glunt v. Pennsylvania R. Co., 249 Pa.
522, 95 Atl. 109—pp. 78, 124, 180.

‘Goldston, Cincinnati, etc., R. Co. v.
‘Golligher v. Pennsylvania R. Co., 237
Pa. 152, 85 Atl. 129—p. 238.

‘Goode, Cincinnati, etc., R. Co. v.

Gordon v. New Orleans, etc. R. Co.,
135 La. 137, 64 So. 1014—pp. 17, 237,
304, 324, 527.

— Toledo, etc. R. Co. v.

Goughnour, Pennsylvania R. Co. v. _

‘Graber v. Duluth, etc., R. Co., 159 Wis.

 

 

 

 

 

414, 150 N. W. 489—pp. 38, 44, 62, 115,
116, 144, 180, 266, 415, 418.

Graham, St. Louis, etc., R. Co. v.

Grand Rapids, etc., R. Co., Jorgenson v.

United States v.

Grande Trunk R. Co. v. Richardson,
91 U. S. 454, 23 L. Ed. 356—p. 313.

— Wilson wv.

Grande Trunk, etc. R. Co. v. Lindsay,
233 U. S. 42, 58 L. Ed. 838, 34 S. Ct.
581, Ann. Cas. 1914C, 168—pp. 37, 45,
151, 155, 157, 164, 271, 360, 391, 427,
539, 541.

v. Lindsay, 120 C. C. A. 166, 201
Fed. 836, 84i—pp. 153, 179, 314, 351,
359, 401, 407, 416, 465, 526, 527, 534,
547, 579.

—— v. Poole, 175 Ind. 567, 93 N. E. 26
—pp. 479, 496, 527, 533, 540, 541, 547,
572, 580, 586, 588, 591, 592.

Granger v. Pennsylvania R. Co. (N. J.),
86 Atl. 264, 265—pp. 20, 67.

Gray, Chicago, etc., R. Co. v.

v. Chicago, etc., R. Co., 153 Wis.
637, 142 N. W. 505, 508, Ann. Cas.
1915A, 911, L. R. A. 1915F, 744—pp.
18, 102, 106, 308.

— v. Louisville, etc., R. Co. (C. C.),
197 Fed. 874—pp. 451, 467, 519.

—— Osborne wv.

—— Southern R. Co. wv.

—— v. Southern R. Co., 167 N. C. 433,
83 S. E. 849—pp. 1569 314, 324, 394.

Great Northern R. Co., Alexander v.

Calhoun v.

Capital Trust Co. v.

Cherpeski wv.

Dillon v.

Donaldson wv.

Hobbs vw.

Johnson v.

Kelley v.

v. Knapp (U. S.), 36 S. Ct. 399,
400—pp. 170, 437.

—— Leggett v.

—— Maijala v.

—— Manson v.

— v. Mustell, 138 C. C. A. 305, 222
Fed. 879—pp. 131, 188, 408.

—— Otos v.

— v. Otos, 239 U. S. 349, 36 S. Ct.
124—-pp. 82, 151, 401, 477, 452, 521,
B22. *

—— Rief v.

— Roach vw.

— Smith wv.

—— Snyder vz.

—— Tsmura v.

— United States v.

—— v. United States, 127 C. C. A. 595,
211 Fed. 309—pp. 605, 625, 626, 627,
628.

— v. United States, 134 C. C. A. 98,
218 Fed. 302, L. R. A. 1915D, 408—
Pp. 626, 642, 643, 648, 649, 650, 652.

 

 

 

 

HTT
XXX

TABLE OF CASES.

 

Great Northern R. Co., Wiles wv.

uv. Wiles (U. S.), 36 S. Ct. 406—
pp. 159, 161, 162, 330.

Greenleaf v. Illinois Cent. R. Co., 29
Iowa 14, 4 Am. Rep. 181—p. 334.

Gross, Cincinnati, etc., R. Co. v.

Grow v. Oregon, etc., R. Co., 44 Utah
160, 138 Pac. 398, Ann. Cas. 1915B,
481—pp. 20, 41, 77, 112, 113, 126, 144,
150, 165, 169, 177, 182, 335.

Grybowski v. Erie R. Co. (N. J.), 95
Atl. 764—pp. 5, 20, 36, 38, 66, 102,
126, 144, 145, 387, 394.

Guana v. Southern Pac. Co., 15 Ariz.
413, 139 Pac. 782, 784—pp. 170, 179,
181, 182.

Guarantee Co. v. Hanway, 44 C. C. A.
312, 104 Fed. 369, 374—p. 558.

Gulf, etc, R. Co. v. Beezley (Tex.
Civ. App.), 153 S. W. 651, 652—pp.
199, 397,

—— v. Lester (Tex. Civ. App.), 149 S.
W. 841-pp. 38, 199, 202, 203, 237, 298.

v. McGinnis, 228 U. S. 173, 175, 57
L. Ed. 785, 33 S. Ct. 426—pp. 217, 219,
224, 360, 371, 379, 384, 433.

—— v. McGinnis (Tex. Civ. App.), 147
S. W. 1188, 1189-—pp. 220, 282.

Gutierrez, El Paso, etc., R. Co. v.

H

Hackett, Chicago, etc., R. Co. v.

Hackney v. Missouri, etc., R. Co., 96
Kan. 30, 149 Pac. 421—pp. 161, 425.

Hadley v. Union Pac. R. Co. (Neb.),
156 N. W. 765, 769—pp. 33, 140, 160,
169, 384, 397, 441.

Haffin v. Mason (U. S.), 15 Wall. 671,
21 L. Ed. 196—p. 350.

Hall v. Chicago, etc. R. Co. (C. C),
149 Fed. 564—pp. 5, 20, 35.

—— Gila Valley, etc., R. Co. v.

— Kansas, etc., R. Co. v.

—— v. Louisville, etc, R. Co. (C. C.),
157 Fed. 464—pp. 9, 42, 205, 206.
—— v. Southern R. Co., 146 N. C. 345,

59 S. E. 879—p. 211.

—— v. Southern R. Co., 149 N. C. 108,
62 S. E, 899—p. 211.

—— v. Vandalia R. Co., 169 Ill. App.
12—pp. 153, 282.

Halsted v. State, 41 N. J. L. 552, 591,
32 Am. Rep. 247—p. 454.

Hambly, Northern Pac. R. Co. wv.

Hammil v. Pennsylvania R. Co. (N. J.),
94 Atl. 313—pp. 15, 48.

Hanley v. Kansas, etc., R. Co., 187 U.
S. 617, 47 L. Ed. 383, 23 S. Ct. 214
p. 464.

Hannibal, etc., R. Co., Barker v.

Hansen v. Boyd, 161 U. S. 397, 40 L,
Ed. 746, 16 S. Ct. 571—p. 440.

Hanson v. Chicago, etc., R. Co., 157
Wis. 455, 146 N. W. 524—pp. 413, 414,

Hanway, Guarantee Co. v.

 

 

 

Hardridge, Checotah v.

Flardwick v. Wabash R. Co., 181 Mo.
App. 156, 168 S. W. 328—pp. 32. 69,
126, 141, 153, 175, 237, 286, 346, 384.

‘Hardy, Holden v.

Harmon, Washington, etc., R. Co. v.

Harriman, Missouri, etc., R. Co. vw.

Harrington, Chicago, etc., R. Co. wv.

Harrisburg, The.

Hartman v. Chicago, etc., R. Co. (Mo.
App.), 182 S. W. 148, 154—pp. 58, 271.

v. Western Maryland R. Co., 246
Pa. 460, 92 Atl. 698, 700—pp. 130, 144,
147, 179.

Haverhill, Campbell w.

Hawkins v. St. Louis, etc., R. Co., 189
Mo. ‘App. 201, 174 S. W. 129—pp. 33,
38, 121, 137, 144, 164, 165, 176, 180,
184, 425.

— Southern R. Co. wv.

Hawley, Missouri, etc., R. Co. v.

Hayes, Wabash R. Co. v.

Hazelrigg, Norfolk, etc., R. Co. v.

Hearst v. St. Louis, etc. R. Co., 188
Mo. App. 36, 173 S. W. 86—pp. 85, 202.

Hegberg v. St. Louis, etc, R. Co., 164
Mo. App. 514, 147 S. W. 192—p. 216.

Heimbach v, Lehigh Valley R. Co. (D.
C.), 197 Fed. 579—pp. 67, 84.

‘Heinig, Louisville, etc. R. Co. v.

‘Helm v. Cincinnati, etc, R. Co., 156
Ky. 240, 160 S. W. 945—pp. 117, 119,
122.

Helmke v. Thilmany, 107 Wis. 216, 83
N. W. 360—p. 113.

Hench v. Pennsylvania R. Co., 246 Pa.
1, 91 Atl. 1056, L. R. A. 1915D, 557—
Pp. 41, 304, 326, 347, 586.

Heney, Copper River, etc., R. Co. v.

Henley v. Illinois Cent. R. Co. (Minn.),
157 N. W. 1005—pp. 94, 129.

Hennington v. Georgia, 163 U. §. 299,
41 L. Ed. 166, 16 8. Ct. 1086—p. 460.

Henry, Louisville, etc., R. Co. v,

Nashville, etc., Railway v.

Hepner v. United States, 213 U. S.
103, 53 L. Ed. 720, 29 S. Ct. 474, 27
L. R.A, N. S., 739, 16 Am. & Eng.
Ann. Cas. 960—pp. 552, 593.

Herrick, Minneapolis, etc, R. Co. w.

‘Herring v. Atlantic, etc, R. Co., 168
N. C. 555, 84 S. EF. 863—p. 57,

Hesterly, St. Louis, etc., R. Co. v.

Hill, Cincinnati, etc, R. Co. v.

—— Southern R. Co. v,

Hobbs v. Great Northern R. Co., 80
Wash. 678, 142 Pac. 20, L. R. A.
1915D, 503—pp. 117, 118, 303.

Hoboken Co., Bridge Proprietors v.

‘Hogan v. New York, etc, R. Co., 139
CG. Cy A. 328, 223 Fed. 890—pp. 117,
121, 137, 190, 192, 225, 267, 371.

Hogarty v. Philadelphia, etc., R. Co.,
245 Pa. 443, 91 Atl. 854—pp. 38, 55
57, 291, 336, 339. :

Hohenleitner v. Southern Pac. Co. (C.

 

 
TABLE OF CASES.

XXXI

 

C.), 177 Fed. 796—pp. 465, 475, 494,
498, 499.

Hoke v. United States, 227 U. 5. 308,
57 L. Ed. 523, 33 S. Ct. 281—p. 2.

Holbrook, Norfolk, etc., R. Co. v.

Holden v. Hardy, 169 U. S. 366, 42 L.
Ed. 780, 18 S. Ct. 3883—p. 51.

Holland, Vandalia ‘R. Co. wv.

Hollenbeck v. Berkshire R.
(Mass.), 9 Cush. 478—p. 196.

Holliday, Chicago, etc., R. Co. wv.

Hollingshead v. Detroit, etc., R. Co.,
181 Mich. 547, 148 N. W. 171—pp.
117, 125, 137.

Holloway, Louisville, etc. R. Co. v.

Holmberg v. Lake Shore, etc., R. Co.
(Mich.), 155 N. W. 504—pp. 72, 161,
236, 264, 307, 401.

Hood, Malcott vw.

Hoppock, Wicker v.

Horton v. Oregon-Washington R.,
etc., Co., 72 Wash. 503, 180 Pac. 897
—pp. 18, 20, 33, 71, 92, 111, 113.

—— Seaboard Air Line Railway v.

—— wv. Seaboard, etc. R. Co., 157 N.
C. 146, 72 S. E. 958—pp. 85, 151, 153,
238, 403.

—— v. Seaboard, etc. R. Co., 162 N.C.
424, 78 S. E. 494, Ann. Cas. 1915A,
132—pp. 176, 348.

—— wv. Seaboard, etc., R. Co., 162 N. C.

Hosheit v. Luck, 199 Mo. App. 431, 177
S. W. 172, 716—p. 176.

Houghton County St. R. Co.,

Houseman, Claflin wv.

Houston, etc, R. Co. v. Bright (Tex.
Civ. App.), 156 S. W. 304—pp. 11,
38, 40, 41.

—— v. Samford (Tex. Civ. App.), 181

S. W. 857—pp. 139, 144.

—— United States v.

Howard v. Illinois Cent. R. Co., 207
U. S. 463, 52 L. Ed. 297, 28 S. Ct. 141
—p. 617.

—— uv, Illinois Cent. R. Co. (C. C.), 148

Fed. 997—pp. 2, 4, 26, 27.

— v. Nashville, etc., R. Co. (Tenn.),
179 S. W. 380, 381—pp. 38, 199, 201,
238, 261.

Howell v. Atlantic, etc. R. Co., 99 S.
C. 417, 83 S. E. 639—pp. 85, 262, 263,
311, 323, 334.

Howerton, Southern R. Co. w.

Hoxie v. New York, etc, R. Co., 82
Conn. 352, 73 Atl. 754, 17 Am. &
Eng. Ann. Cas. 324—pp. 2, 3, 4, 26,
28, 233, 237, 238, 615.

Hubbard v. Chicago, etc., R. Co. (C.
C.), 176 Fed. 994—pp. 245, 246, 261.

Hubert v. New York, etc, R. Co.
(Conn.), 96 Atl. 967, 971—pp. 96, 329,
347, 350, 352, 417.

Huebel Co. v. Leaper, 110 C. C. A.
475, 188 Fed. 769—p. 440.

Hughes, Louisville, etc., R. Co. w.

Co.

Oliver v.

 

Hughes v. New York, etc., R. Co., 158
App. Div. 443, 143 N. ¥. & doa—
p. 231.

Hulac v. Chicago, etc., R. Co. (D. C.),
194 Fed. 747, 749—pp. 13, 248, 249.

Hull v. Virginian R. Co. (W. Va.), 88
S. E. 1060—pp. 117, 121, 136, 159, 162,
171, 177, 178, 327, 328.

Humphreys, Aerkfetz v.

Hunter v. Montana, etc, R. Co., 22
Mont. 525, 57 Pac. 140—p. 125.

urd, Boston, etc., Railroad v.

Hurley v. Illinois Cent. R. Co. (Minn.),
157 N. W. 1005—pp. 16, 17, 108, 304,
326, 327, 328, 464, 471, 491, 495.

Hurtado v. California, 110 U. S. 516,
28 L. Ed. 232, 4 S. Ct. 111, 292—p.
240.

Hutchinson Invest. Co. v. Caldwell,
152 U. S. 65, 38 L. Ed. 356, 14 S. Ct.
504—p. 228.

‘Huxoll v Union Pac. R. Co. (Neb.),
155 N. W. 900—pp. 112, 126, 138, 151,
165, 172, 179, 180, 532.

\Hyde v. Southern R. Co., 31 App. D.
C. 466—pp. 6, 27.

I

Idaho, etc., Railroad, Neil v.

Idaho, etc., R. Co., Neil v.

Illinois, Spies v.

Illinois Cent. R. Co., Bankson v.

—— v. Behrens, 233 U. S. 473, 58 L. Ed.
1051, 34 S. Ct. 646, Ann. Cas. 1914C,
163—pp. 17, 19, 29, 63, 80, 84, 88, 91,
96, 97, 98, 100, 106, 304.

—— Byram v.

Coleman v.

Cousins v.

Daly vw.

v. Doherty, 153 Ky. 363, 155 S.
W. 1119, 47 L. R. A, N.S. 31—pp.
37, 192, 225, 227, 237, 305, 306, 340,
BES.

—— v. Egan, 122 C. C. A. 239, 203 Fed.
937—p. 422.

Greenleaf v.

Henley v.

Howard wv.

Hurley v.

Interstate Commerce Comm. v.
v. Kelly, 167 Ky. 745, 181 S. W.
375—pp. 72, 273, 339, 420.

—— McChesney v.

— v. McKendall, 203 U. S. 514, 51
L. Ed. 298, 27 S. Ct. 153—p. 34.

—— Miller v.

—— Nelson v.

—  v. Nelson, 122 C. C. A. 258, 203
Fed. 956—pp. 89, 93, 153, 165, 359.
XXXII

TABLE OF CASES.

 

Illinois Cent. R. Co. v. Nelson, 128 C.
C. A. 525, 212 Fed. 69—pp. 295, 297,
309, 317, 323, 351, 414, 416, 417, 418, 419.

—— Peery 7.

—— Pelton v.

—— Perey vw.

—— yv. Porter, 125 C. C. A. 155, 207
Fed. 311, 316—pp. 104, 144, 147, 157,
179, 188, 226, 227, 392.

—— v. Rogers, 136 C. C. A. 530, 221
Fed. 52—pp. 20, 106, 278, 411, 415.

—— Skaggs v.

—— v. Skaggs (U. S.), 36 S. Ct. 249—
pp. 144, 157, 158, 350, 352, 388.

—— Staley v.

v. Stewart, 138 C. C. A. 444, 223

Fed. 30—pp. 163, 164, 177, 181, 282.

United States v.

—— Whittaker v.

Willett v.

Illinois, etc., R. Co., Behrens v.

Whittaker wv.

Indiana Harbor R. Co., United States v.

Industrial Board, Chicago, etc, R.
Co. v.

Industrial Acci. Comm., Smith v.

Ingersoll v. Coram, 211 U. S. 335, 53
L. Ed. 208, 29 S. ‘Ct. 92—p. 210.

Ingle v. Southern. R. Co., 167 N. C.
636, 83 S. E. 744—pp. 43, 44, 295, 325.

In re Moore, 209 U. S. 490, 52 L. Ed.
904, 28 S. Ct. 585, 706, 14 Am. &
Eng. Ann. Cas. 1164—p. 246.

In re Taylor, 144 App. Div. 634, 129
N. Y. S. 378—pp. 40, 218.

In re Taylor, 204 N. Y. 135, 97 N. E.
502, Ann. Cas. 1913D, 276—pp. 40,
219,

International, etc., R. Co. v. Elder, 44
Tex. Civ. App. 605, 99 S. W. 856, 857
—p. 556.

——  v. Lehman (Tex. Civ. App.), 72
S. W. 619—p. 385.

—— v. Reek (Tex. Civ. App.), 179 S.

W. 669—pp. 38, 266, 288.

—— United States v.

Interstate Commerce Comm.,
more, etc., R. Co. wv.

—— v. Illinois Cent. R. Co., 215 U. S.
452, 474, 54 L. Ed. 280, 30 S. Ct. 155
=p. TY,

Irvine v. Southern R. Co., 164 N. C.
5, 80 S. E. 78, 49 L. R. A, N.S,
810, Ann. Cas. 1915D, 54—pp. 320,
344, 346, 358, 371, 382, 407.

J

Jackson v. Chicago, etc. R. Co. (D.
C.), 210 Fed. 495—p. 76.

Jacobs, Southern R. Co. w.

—— v. Southern R. Co., (U. S.), 36 S.
Ct. 588—pp. 170, 171, 184, 185, 354,
412,

‘

 

 

 

 

Balti-

 

Jacobus, Erie R..Co. v.

Jensen v. Southern Pac. Co., 215 N. Y.
514, 109 N. E. 600, L. R. A. 1916A,
403—pp. 11, 16, 48,

Johnson Case, 54'C. C. A. 508, 117 Fed.
462—p. 452.

Johnson v. Great Northern R. Co., 102.
C. C. A. 89, 178 Fed. 643, 30 L. R. A,
N. S., 990—pp. 105, 151, 153, 163, 172,
452, 473, 475, 494, 528.

— Louisville, etc., R. Co. v.

—— v. Southern Pac. Co., 196 U. S. 1,
49 L. Ed. 363, 25 S. Ct. 158—pp. 34,
64, 71, 442, 443, 445, 447, 448, 449, 452,
474, 475, 482, 489, 490, 491, 492, 495,
496, 497, 498, 499, 587, 613.

—— v. Southern Pac. Co., 54 C. C. A.
508, 117 Fed. 462, 12 Am. Neg. Rep.
398—p. 480.

Johnston v. Chicago, etc., R. Co. (Mo.
App.), 164 S. W. 260—pp. 541, 547.

Jones, Atlantic Coast Line R. Co. v.

Atlantic, etc. R. Co. vw -

—— v. Charleston,‘etc., R. Co., 98 S.
C. 197, 82 S. E. 415—pp. 10, 217, 224,
225.

— v. Chesapeake, etc. R. Co., 149
Ky. 566, 149 S. W. 951—pp. 40, 42,
46, 68, 69, 273, 335. .

—— Ft. Worth, etc., R. Co. vw.

—— Kansas, etc. R. Co. v.

—— vu. Kansas, etc. R. Co., 137 La.
178, 68 So. 401—pp. 142, 153, 248, 299,
311, 322, 396.

— Portland Terminal Co. v.

Jorgenson v. Grand Rapids, etc., R.
Co. (Mich.), 155 N. W. 535—pp. 38,
190, 194, 270, 273, 280, 291, 292, 370.

Joy, Baltimore, etc, R. Co. wv.

K

Kamboris v. Oregon-Washington R,,
etc., Co. 75 Ore. 358, 146 Pac. 1097
—pp. 38, 93, 238.

Kanawha, etc, R. Co. v. Kerse, 239
U. S. 576, 36 S. Ct. 174—pp. 137, 186,
306, 417.

Kane v. Northern Cent. R. Co., 128 U.
Pt 32 L. Ed. 339, 9 S. Ct. 16—p.

Kansas, Jones, etc., R. Co. v.

Kansas City, etc, R. Co. Barker v.

v. Livesay (Ark.), 177 S. W. 875—
p. 121.

—— v. Pope (Tex. Civ. App.), 152 S.
W. 185—pp. 38, 96. ee :

—— United States v.

Kansas, etc., R. Co., Barker v,

Carpenter v.

Carter v.

—- v. Cook, 100 Ark. 467, 140 S. W.
579—pp. 85, 248, 249, 252, 279.

—— v. Flippo, 138 Ala. 487, 35 So.
457—pp. 443, 466, 527, 534, 541, 542
570, 571, 576, 577, 590.

 

 

 

”
TABLE OF CASES.

XXXII

 

Kansas, etc., R. Co. v. Hall (Tex. Civ.
App.), 152 S. W. 445—pp. 154, 171, 300,
358.

—— Hanley v.

—— Jones v.

— v. Jones (U. §S.), 36 S. Ct. 513—
pp. 264, 299, 311, 435.

—— uv. Leslie, 238 U. S. 599, 59 L. Ed.
1478, 35 S. Ct. 844, 845—pp. 247, 365,
371, 373, 386.

—— v. Leslie, 112 Ark. 305, 167 S. W.
83, Ann. Cas. 1915B, 834—pp. 105,
121, 132, 140, 194, 249, 262, 318, 340,
378.

—— v. Livesay (Ark.), 177 S. W. 875,
876—pp. 170, 177, 178.

— McAdow vw.

—— v. McAdow, 240 U. S. 51, 36 S. Ct.
252—pp. 261, 262, 263, 270, 292, 418,
419, 435.

—— Miller v.

—— wv. Miller, 117 Ark. 396, 175 S. W.
1164—pp. 105, 162, 319, 345.

—— v. Pope (Tex. "Civ. App.), 152 S.
W. 185—pp. 202, 203.

— v. Roe (Okla. ), 150 Pac. 1035—
p. 377. <

—— Thornbro vw.

—— Trowbridge v.

Kearney v. Boston, etc, R. Corp.
(Mass.), 9 Cush. 108—p. 196.

Keller, St. Louis, etc., R. Co. v.

Kelley, Chesapeake, etc., R. Co. v.

—— Great Northern R. Co. (C. C.),
152 Fed. 211—pp. 1, 2, 9, 13, 14, 18,
19, 26, 27, 30, 34, 68.

Kellow v. Central Iowa R. Co., 68
Iowa 470, 23 N. W. 740, 27 N. W.
466, 56 Am. Rep. 858—p. 196.

Kelly, Chesapeake, etc., R. Co. v.

—— v. Chesapeake, etc., R. Co. (D.
C.), 201 Fed. 602—pp. 17, 37, 248, 252,
254, 268, 271, 276.

—— Day uv.

es Tilinoig Cent. R. Co. v.

Kemp, Louisville, etc., R. Co. v.

Kennard v. Morgan, 92 U. S. 480, 23
L. Ed. 478—p. 240.

Kennedy, Erie R. Co. v.
Kennerson v. Thames Towboat Co.
(Conn.), 94 Atl. 372, 375—pp. 15, 48.

Kenney, Seaboard Air Line Railway v.

Seaboard, etc, R Co. 165 N.
C. 99, 80 S. E. 1078—pp. 129, 130, 153,
371, 426.

—— v. Seaboard, etc, R. Co., 167 N.
C. 14, 82 S. E. 968—pp. 224, 227, 228.

—— Seaboard, etc., Railway vw.

Kennicott, Supervisors v.

Kennon v. Gilmer, 131 U. S. 22, 33
L. Ed. 110, 9 S. Ct. 696—p. 410.
Kentucky, etc., R. Co. v. Minton, 167
Ky. 516, 180 S. W. 831—pp. 20, 117,

151, 159, 314, 346.

Fed Act—c

SS a

Kenyon v. Illinois Cent. R. Co.
(Iowa), 155 N. W. 810—pp. 135, 153,
287.

Kerse, Kanawha, etc., R. Co. v.

King, Chicago Junction R. Co. vw.

Steamboat New World v.

Kirbo v. Southern R. Co., 16 Ga. App.
49, 84 S. E. 491—pp. 170, 177, 179,
185, 187.

Kiser v. Metropolitan St. R. Co., 188
Mo. App. 169, 175 S. W. 98—p. 86.

Knapp, Great Northern R. Co. v.

Knowles v. New York, etc, R. Co,
164 App. Div. 711, 150 N. Y. S. 99—
pp. 111, 304, 326.

Knox, Pennsylvania R. Co. v.

Koennecke, Seaboard, etc., Railway v.

—— v. Seaboard, etc., Railway, 101 S.
C. 86, 85 S. E. 374pp. 124, 125, 227,
228, 288, 309, 316, 324.

Konkouris v. Union ‘Pac. R. Co. (Mo.),
186 S. W.:545—p. 38.

Kopel v. Bingham, 211 U. S. 468, 53
L. Ed. 286, 29 S. Ct. 190—p. 463.
Kornhoff, Chesapeake, etc., R. Co. v.

Kurtz, Galveston, etc., R. Co. w.

L

La Bianca, Low Moor Iron Co. vw.

La Casse v. New Orleans, etc., R. Co.,
135 La. 129, 64 So. 1012—pp. 37, 102,
202, 214, 412.

Lacher, United States v.

Lake Erie, etc., R. Co., Tullis v.

Lake Shore, etc., R. Co., Cory v.

Holmberg vw.

—— Luken v.

—— Walsh vw.

Lake Superior, etc., R. Co. v. United
States, 93 U. S. 442, 23 L. Ed. 965—
p. 467.

La Londe, El Paso, etc., Co. v.

La Mere vw. Railway Transfer Co., 125
Minn. 159, 145 N. W. 1068, Ann. "Cas.
1915C, 667—pp. 130, 151, 153, 172,
179, 180, 484, 485, 527, 531.

Lamphere v. ‘Oregon R., etc., Co., 116
C. C. A. 156, 196 Fed. 336, 340-—pp.
5, 20, 69, 71, 79, 82, 112.

—v, Oregon, etc.,, R. Co. (C. C.),
193 Fed. 248—p. 17.

Lancer v. Anchor Line (D. C.), 155
Fed. 433—p. 26.

Lankford, Louisville, etc., R. Co. v.
Larabee v. New York, etc., R. Co., 182
Mass. 348, 66 N. E. 1032—p. 490.

 

 

Larabee Flour Mills Co., Missouri,
etc., R. Co. v.
Lassiter v. Norfolk, etc, R. Co., 136

N. C. 89, 92, 48 S. E. 642, 1 Am. &

Eng. Ann. Cas. 456—p. 292.
Lauenstein, Miedreich wv.
‘Lauer v. Northern Pac.

 

R. Co., 83
XXXIV

TABLE OF CASES.

 

Wash. 465, 145 Pac. 606, L. R. A.
1915D, 292—pp. 33, 36, 177.

Law v. Illinois Cent. R. Co., 126 C. C.
A. 27, 208 Fed. 869—pp. 79, 144, 147,
339.

Leaper, Huebel Co. v.

Lee v. Toledo, etc., R. Co. (D. C.), 193
Fed. 685, 686—pp. 248, 251, 252, 258.

Lees v. United States, 150 U. S. 476,
37 L. Ed. 1150, 14 S. Ct. 163—p. 415.

Lefan, Southern R. Co. v.

Legal Tender Cases (U. S.), 12 Wall.
457, 551, 20 L. Ed. 287—pp. 30, 52,
53.

Leggett v. Great Northern R. Co. (C.
C.), 180 Fed. 314—p. 245.

Lehigh Valley R. Co., Barlow v.

Bennett v.

—— Gee v.

— Heimbach v.

—— Okrzsezs v.

—— Smartwood wv.

— Swartwood v.

—— United States v.

Lehman, International, etc., R. Co. v.

Lemon v. Louisville, etc., R. Co., 137
Ky. 276, 125 S. W. 701—pp. 46, 236,
244, 245, 270.

Lemoyne, Midland Valley R. Co. v.

Lenahan, Missouri, etc., R. Co. v.

Leora v. Minneapolis, etc., R. Co., 156
Wis. 386, 146 N. W. 520—pp. 413,
414.

Leslie, Kansas, etc., R. Co. v.

Lester, Gulf, etc., R. Co. v.

Lett v. St. Lawrence, etc., R. Co., 11
Ont. App. Rep. 1—p. 395. :
Lewis v. Denver, etc, R. Co. 131
Minn. 122, 154 N. W. 945—pp. 274,

308, 412.

Lile v. Louisville, etc., R. Co., 161 Ky.
347, 170 S. W. 936—pp. 330, 331.

Lindsay v. Chicago, etc, R. Co.
(Okla.), 155 Pac, 1173—pp. 230, 231,
232,

— Grand Trunk Western R. Co. vw.

Grand Trunk, etc., R. Co. wv.

Linkous, Virginian R. Co. v.

Littleton, San Antonio, etc., R. Co. v.

Livesay, Kansas City, etc., R. Co. v.

Lloyd v. North Carolina R. Co., 151 N.
C. 536, 66 S. E. 604, 19 Am. & Eng.
Ann. Cas. 384—p. 615.

—  v. North Carolina R. Co., 162 N.
C. 485, 78 S. E. 489'-pp. 2, 26, 38, 90,
143, 238, 247, 254, 255, 256, 404.

—— Southern R. Co. v.

—— v. Southern R. Co., 239 U. S. 496,
36 S. Ct. 210—p. 255.

— v. Southern R. Co., 166 N. C. 24,
26, 81 S. E. 1003—pp. 90, 143, 153,
180, 181, 182, 255, 256, 269, 300, 348,
358, 415.

Lombardo wv. Boston, etc.,

 

 

Railroad

 

(D. C.) 223 Fed. 427, 432—pp. 70,
248, 249, 252.

Long v. Lusk (Ark.), 186 S. W. 601—
pp. 18, 34, 72, 225.

—— v. Southern R. Co., 155 Ky. 286,
159 S. W. 779—pp. 117, 118, 144, 153.

Lorick v. Seaboard, etc. Railway, 102
S. C. 276, 86 S. E. 675—pp. 82, 184,
186, 188, 477.

Los Angeles, Pacific Elect. R. Co. v.

Louisiana Light Co., New Orleans Gas
Co. v.

Louisville, etc., Railroad, Carden v.

Louisville, etc., R. Co., Anderson v.

v. Barrett, 143 Ga. 742, 85 S. E.
923—pp. 103, 104, 271, 272, 296, 308.

—— v. Carter (Ala.), 70 So. 655—pp.
45, 81, 420.

—— Ellis v.

—— v. Fleming (Ala.), 69 So. 125, 129
—pp. 24, 124, 146, 162, 191, 192, 316,
321, 323, 382, 411.

—— Garrett v.

—— Gray v.

—— Hall v.

v. Heinig, 162 Ky. 14, 171 S. W.
853-—pp. 123, 129, 131, 136, 158, 160,
165, 166, 170, 172, 185, 418.

—— v. Henry, 167 Ky. 151, 180 S. W.
74—pp. 179, 311, 361.

—— v. Holloway, 163 Ky. 125, 173 S.
W. 343—pp. 85, 117, 121, 124, 125,
150, 262, 318, 334, 387, 388.

—— v. Holloway, 168 Ky. 262, 181 S.
W. 1126—pp. 240, 283, 321, 376, 388,
3917.

—— v. Hughes (D. C.), 201 Fed. 727
—p, 615.

—— v. Johnson, 161 Ky. 824, 171 S.
W. 847—pp. 124, 125, 126, 178, 262,

263, 334, 371.

—— v. Kemp, 140 Ga. 657, 79 S. E.
558—pp. 37, 72, 73, 117, 118, 119, 120,
153, 304, 358.

v. Lankford, 126 C. C. A. 247, 209
Fed. 321—pp. 133, 134, 136, 153, 165,
188, 387.

— Lemon v.

—— Lile v. ,

—— v. Moore, 156 Ky. 708, 161 S. W.
1129—p. 266.

—— v. Mottley, 219 U. S. 467, 55. L.
Ed, 297, 31 S. Ct. 265—p. 53.

—— v. Patrick, 167 Ky. 118, 180 S. W.
55—pp. 121, 134, 170, 177, 184, 367.
—— v. Pearson, 97 Ala. 211, 12 So. 176

—p. 161.

v. Rhoda (Fla.), 71 So. 369 pp.

121, 192, 263, 304.

—— v. Simrall, 127 Ky. 55, 104 S. W.
1011—p. 562.

—— v. Smith, 204 U. S. 551, 51 L. Ed.
612, 27 S. Ct. 401—p. 430.

 

 

 

 
TABLE OF CASES.

XXXV

 

Louisville, etc., R. Co. v. Stewart (U.
S.), 36 S. Ct. 586—pp. 131, 180, 192,
242, 362, 372, 395, 437, 438.

—— v. Stewart, 156 Ky. 550, 161 5S.
W. 557—pp. 262, 283, 384.
—— v. Stewart, 157 Ky. 642,

W. 755—pp. 217, 371.

— v. Stewart, 163 Ky. 823, 174 S&S.
W. 744—pp. 129, 240, 347, 425.

— v. Strange, 156 Ky. 439, 161 S. W.
239—pp. 37, 41, 64, 87, 129, 144, 151,
153, 170, T27, 179, 266.

— United States v.

— v. United States, 98 C. C. A. 664,
174 Fed. 1021—pp. 475, 551, 583, 584.

—— v. United States, 108 C. C. A. 326,
186 Fed. 280—pp. 444, 473, 474, 566,
579, 580.

v. Walker, 162 Ky. 209, 172 S.
W. 517—pp. 20, 21, 22, 23, 72, 111,
114, 131, 149.

—v. Wene, 121 C. C. A. 245, 202
Fed. 887—pp. 154, 157, 166, 388, 389.

— v. Winkler, 162 Ky. 843, 173 S.
W. 151—pp. 60, 153, 158, 160, 240,
334, ‘

Low Moor Iron Co. v. La Bianca, 106
Va. 83, 55 S. E. 532, 9 Am. & Eng.
Ann. Cas. 1177—p. 211.

Lucas v. Peoria, etc., R. Co., 171 IIl.
App. 1—pp. 45% 466, 534, 581.

Luken v. Lake Shore, etc., R. Co., 248
Ill. 377, 94 N. E. 175, 21 Am. & Eng.
Ann. Cas. 82—pp. 452, 454, 456, 460,
494, 534, 571, 591.

— v. Lake Shore, etc. R. Co., 154
Ill. App. 550—p. 495.

Lusk, Hosheit v.

—— Long vz.

Lynch v. Central Vermont R. Co.
(Vt.), 95 Atl. 683—pp. 24, 63, 73, 128,
237, 307, 321, 327, 340, 343, 403, 416.

Lyon v. Charleston, etc., Railway, 77
S. C. 328, 58 S. E. 12—pp. 486, 487,
531.

163 S.

 

M

McAdow, Kansas, etc., R. Co. v.

—— v. Kansas, etc., R. Co. (Mo.), 164
S. W. 188, 192—pp. 15, 65, 128, 262,
263, 295, 312.

McAuliffe v. New York Cent., etc., R.
Co., 164 App. Div. 846, 150 N. Y. S.
512—pp. 112, 303, 304.

McBee, Chicago, etc, R. Co. v.

McCalley v. Chesapeake, etc., R. Co.
(Ky. App.), 183 S. W. 234—p. 126.

McChesney v. Illinois Cent. R. Co. (D.

C.), 197 Fed. 85, 87—pp. 248, 249,
252, 271.

McConnell, Philadelphia, etc, R.
Co. v.

McCormick, Chicago, etc., R. Co.

v.
McCoullough v. Chicago, etc., R. Co.,

160 Iowa 524, 142 N. W. 67, 47 L. R.
A., N. S., 23—pp. 133, 226, 227, 236,
237, 320, 821, 349, 357, 373, 380, 381,
382.

McCracken v. Delano (Neb.), 157 N.
W. 917—p. 127.

McCue, Packet Co. w.

McDade, Choctaw, etc., R. Co. v.

McDonald v. Railway Transfer Co.,
121 Minn. 273, 141 N. W. 177—pp.
136, 137, 153, 181, 182, 270, 336.

McDugal, Shulthis v.

McElvain v. St. Louis, etc., R. Co., 176
Mo. App. 379, 158 S. W. 464—p. 33.
McGarvey v. McGarvey, 163 Ky. 242,

173 S. W. 765—pp. 37, 224, 373, 385.

‘McGinnis, Gulf, etc., R. Co. v.

— Southern Pac. Co. w.

McGovern wv. Philadelphia, etc., R. Co.,
235 U. S. 389, 59 L. Ed. 283, 35 S.
Ct. 127—pp. 186, 229, 426, 427.

McGuire, Chicago, etc., R. Co. uv.

McIntosh v. St. Louis, etc. R. Co.
(Mo. App.), 168 S. W. 821—pp. 38,
72

Se ee Louis, etc., R. Co., 182 Mo.

App. 288, 168 S. W. 821—pp. 237,
262, 271, 273, 276, 283, 418.
McKee v. Ohio Valley, etc. R. Co.

(W. Va.), 88 S. E. 616—pp. 18, 76,
324.

McKendall, Illinois, etc., R. Co. v.

Mackey, Missouri, etc., R. Co. v.

McNamara v. Washington Terminal
Co., 35 App. D. C. 230—pp. 6, 27,
51, 56.

—— v. Washington Terminal Co., 37
App. D. C. 384—pp. 6, 15, 27.

McNamare, St. Louis, etc, R. Co. wv.

McWhirter, St. Louis, etc., R. Co. v.

Maerkl, Northern Pac. R. Co. w.

Maijala v. Great Northern R. Co.
(Minn.), 158 N. W. 430—pp. 121,
124,

Malloy v. Northern Pac. R. Co. (C.
C.), 151 Fed. 1019, 1020—pp. 30, 51,
53, 172.

Malott v. Hood, 201 Ill. 202, 66 N. E.
247—pp. 494, 591, 592, 597, 598.

Manson v. Great Northern R. Co. (N.
Dak.), 155 N. W. 32—pp. 38, 117,
119, 138, 144, 153, 154, 171, 304.

Marshall v. Baltimore, etc., R. Co., 16
How. (U. S.), 314, 347, 14 L. Ed.
359—p. 72.

—v. Chicago, ete, R. Co, 131
Minn. 392, 155 N. W. 208—pp. 122,
138, 170, 178, 185, 425, 439.

—— v. Chicago, etc., R. Co. (Minn.),
157 N. W. 638—pp. 263, 323.

Martin v. Atchison, etc., R. Co., 166 U.
S. 399, 41 L. Ed. 1051, 17 S. Ct. 603—

 

p. 147.
XXXVI

TABLE OF CASES.

 

Martin v. Atchison, etc., R. Co., 93 Kan.
681, 145 Pac. 849—pp. 24, 129, 144,
407.

—— v. Baltimore, etc. R. Co., 151 U.
S. 673, 38 L. Ed. 311, 14 S. Ct. 533—
p. 264.

Marysville, etc., R. Co., Nordgard v.

Mason, .Haffin v.

Massachusetts, Brown wv.

Melzner v. Northern Pac. R. Co., 46

Mont. 277; 127 Pac. 1002, L. R. A.
1915B, 811—pp. 9, 18, 38, 190, 191,
192, 202, 203, 217, 220, 225, 226, 282,
364.

Merrill, etc., Lumber Co., Bay v.

Metropolitan St. R. Co., Kiser v.

Meyers v. Norfolk, etc., R. Co., 162 N.
C. 343, 78 S. E. 280, 48 L. R. A, N.
S., 987—pp. 17, 115.

Michigan Cent. R. Co., Miller v.

v. Schaffer, 136 C. C. A. 413, 220
Fed. 809—pp. 123, 132, 148, 182, 313,
343, 352, 354.

—— v. Vreeland, 227 U. S. 59, 57 L.
Ed. 417, 33 S. Ct. 192, Ann. Cas.
1914C, 176—pp. 1, 2, 6, 8, 9, 13, 35,
36, 37, 39, 49, 190, 191, 198, 217, 219,
221, 222, 264, 270, 306, 364, 365, 371,
372, 373, 376, 377, 378, 379, 380, 395,
426, 433. ,

Michigan MHeadlining, etc, Co
Wheeler, 72 C. C. A. 71, 141
61—p. 541.

Midland Valley R. Co. v. Ennis, 109.
Ark. 206, 159 S. W. 214, Ann. Cas.
1915C, 957—pp. 41, 288, 294, 295, 337.

— Fulgham vw.

—— wv. Fulgham, 104 C. C. A. 151, 181
Fed. 91, 95—pp. 190, 331, 588.

—— v. Lemoyne, 104 Ark. 327, 148 S.
W. 654—pp. 192, 202, 211, 238, 413.
Miedreich v. Lauenstein, 232 U. S. 236,
58 L. Ed. 584, 34 S. Ct. 30% p. 431.

Miller, Baltimore, etc., R. Co. v.

v. Illinois Cent. R. Co. (C. CG),
168 Fed. 982—pp. 245, 429.

—— Kansas, etc., R. Co. v.

—— v. Kansas, etc. R. Co., 180 Mo.
App. 371, 168 S. W. 336—pp. 17, 38,
86

 

a UU,
Fed.

 

——y, Michigan Cent. R. Co. (Mich.),

152 N. W. 235—pp, 117, 121, 137, 170.

—— St. Louis Cordage Co. v.

—— v. Texas, 153 U. S. 535, 38 L. Ed.
812, 14 S. Ct. 874—p. 429.

Millette v. New York, etc., R. Co., 169
App. Div. 126, 154 N. Y. S. 792—pp.
134, 165, 180, 397.

Mills, Atchison, etc., R. Co. v.

—— Detroit City Railway v.

Milwaukee, etc., R. Co. v. Arms, 91 U.
S. 489, 23 L. Ed. 374, 8 U. S. E. 878,
879—p. 142.

Mims v. Atlantic, etc. R. Co., 100 S.

C. 375, 85 S. E. 372—pp. 271, 274,
308, 312, 340, 424.

Mining Co. v. Fulton, 205 U. S. 60, 74,
51 L. Ed. 708, 27 S. Ct. 412, 417—p.
30.

Minneapolis, etc., R. Co., Bombolis v.

v. Bombolis (U. S.), 36 S. Ct 595,
598—pp. 236, 237, 239, 240, 241, 242,
243, 554.

—— Breske v.

—— Bresky wv.

— Burho vw.

—— v. Herrick, 127 U. S. 210, 39 L.
Ed. 109, 8 S. Ct. 1176—pp. 9, 31.

—— Leora v. ~

— Nash v.

—— Popplar v.

;—— wv. Popplar, 237 U. S. 369, 59 L.
Ed. 1000, 35 S. Ct. 609—pp. 435, 495,
496, 503, 538, 603.

—— Randall v.

—— Riley v.

—— Thompson v.

—— Winters v.

Minton, Kentucky, etc., R. Co.'v.

Mississippi, Railroad Co. vw.

Missouri Pac. R. Co., Brinkmeier v.

v. Brinkmeier, 77 Kan. 14,

Pac. 621—pp. 449, 452, 570.

v. Castle, 224 U. S. 541, 56 L. Ed.
875, 82 S. Ct. 606—pp. 9, 10, 35, 40,
432, 462.

—— v. Castle, 97 C. CG Az
Fed. 841—pp. 9, 35, 40, 345.

—— uv. Fitzgerald, 160 U. S. 556, 40 L.
Ed. 536, 16 S. Ct. 389—p. 561.

—— v. Mackey, 127 U. S. 205, 32 L.
Ed. 107, 8 S. Ct. 1161—pp. 9, 30, 31,
52.

—— Pipes v.

—— Sims v.

—— State vw.

—— United States vw.

—— v. United States, 128 C. C. A. 271,
211 Fed. 8983—pp. 605, 612, 632.

— White v.

Missouri, etc, R. Co. v. Barrington
(Tex. Civ. App.), 173 S. W. 595—pp.
172, 453, 456, 478, 505, 534,

—— v. Blalack, 105 Tex. 296, 147 S.
W. 559—pp. 109, 110, 111.

—— v. Blalack (Tex. Civ. App.), 128
S. W. 706, 707—p. 236.

—— v. Bunkley, (Tex. Civ. App.), 153
S. W. 937—pp. 177, 180, 181, 187, 248,
249,

—— v. Denahy (Tex. Civ. App.), 165
5S. W. 529—p. 78.

—— v. Fesmire (Tex. Civ. App.), 150
S. W. 201—p. 91.

—— v. Freeman (Tex. Civ. App.), 168
S. W. 69—pp. 129, 181, 182.

 

93

 

 

124, 172

 
TABLE OF CASES.

Missouri, etc., R. Co., Hackney v.

—— v. Harriman, 227 U. S. 657, 57 L.
Ed. 690, 33 S. Ct. 397—p. 175.

—— v. Hawley, 58 Tex. Civ. App. 143,
123 S. W. 726—pp. 42, 43, 274, 275,
276, 283.

— v. Larabee Flour Mills Co., 211
U. S. 612, 620, 53 L. Ed. 352, 29 S.
Ct. 214--p. 42.

—— v. Lenahan, 39 Okla. 283, 135 Pac.
383—pp. 38, 199, 202, 203, 204, 213,
215, 236, 412, 423.

—— uv. Mooney (Tex. Civ. App.), 181
S. W. 543—pp. 69, 146.

—— v. Neaver (Tex. Civ. App.), 127
S. W. 1090—pp. 43, 274, 275.

—— v. Odom (Tex. Civ. App.), 152 S.
W. 730, 733—p. 44.

——  v. Pace (Tex. Civ. App.), 184 S.
W. 1051—pp. 64, 87.

—v. Plemmons (Tex. Civ. App.),
171 S. W. 259—pp. 453, 456, 457, 479,
535.

—— v. Poole, 104 Tex. 36, 133 S. W.
239—pp. 117, 355.

——  v. Poole, 58 Tex. Civ. App. 16,
123 S. W. 1176—p. 144.

—— v. Rentz (Tex. Civ. App.), 162 S.
W. 959, 960—pp. 21, 23, 38, 124, 154,
162, 163.

——v. Rogers (Tex. Civ. App.), 128
S. W. 711—pp. 27, 28, 135.

—— v. Sadler (Tex. Civ. App.), 1495.
W. 1188—pp. 9, 35, 40, 42, 43.

— v. Scott, (Tex. Civ. App.), 160 S.
W. 432—p. 171.

—— uv. Turner (Tex. Civ. App.), 138
S. W. 1126, 1128—pp. 9, 35, 40, 42.

— United States v.

—— uv. United States, 231 U. S. 112, 58
L. Ed. 144, 34 S. Ct. 26—pp. 624, 625,
646, 651, 652.

—— wv. West, 232 U. S. 682, 58 L. Ed.
795, 34 S. Ct. 471—p. 435.

—— v. West, 38 Okla. 581, 134 Pac.
655— pp. 20, 109, 110, 338.

—— v. Wulf, 226 U: S. 570, 57 L. Ed.
274, 33 S. Ct. 135, Ann. Cas. 1914B,
134—pp. 37, 46, 47, 200, 201, 203, 204,
205, 206, 207, 208, 214, 231, 271, 272,
291, 294, 337, 427.

Mitchell, Chicago, etc., R. Co. v.

—— Pittsburgh, etc., R. Co. wv.

Mobile, etc., R. Co. v. Bromberg, 141
Ala. 258, 87 So. 395—pp. 447, 471,
529, 534, 553, 554, 571, 577, 578, 586,
594.

Moffett v. Baltimore, etc., R. Co., 135
Cc. C. A. 607, 220 Fed. 39—pp. 192,
218, 221, 222, 306, 365, 380.

Moliter v. Wabash R. Co., 180 Mo.
App. 84, 168 S. W. 250—pp. 38, 87,
94, 273, 274, 295, 337, 429, 430, 431,
432, 433.

 

XXXVIT

Moloney, Nelson vw.

Molzoff v. Chicago, etc., R. Co. (Wis.),
156 N. W. 467—p. 140.

Mondou v. New York, etc., R. Co., 82
Conn. 373, 73 Atl. 762—pp. 4, 26, 28,
233, 237, 238.

Montana, etc., R. Co., Hunter v.

Montgomery v. Carolina, etc. R. Co.,
163 N. C. 597, 80 S. E. 83—pp. 153,
172, 527, 586.

— v. Southern Pac. Co., 64 Ore.
597, 131 Pac. 507, 47 L. R. A N.S,
13—pp. 33, 92, 93, 99, 311.

Montpelier, etc. Railroad,
States v.

Mooney, ‘Missouri, etc., R. Co. v.

Moore, In re.

— v. Louisville, etc., R. Co. v.

—— v. St. Joseph, etc., R. Co. (Mo.),
186 S. W. 1035—pp. 151, 248, 314,
328, 349, 354, 401, 407, 417, 425, 452,
456, 489, 506.

—— Seaboard Air Line Railway v.

Seaboard, etc. R. Co. v.

Moran v. Central R. Co. (N. J.), 96
Atl. 1023—pp. 100, 324.

Morgan, Kennard vw.

Morris v. Duluth, etc., R. Co., 47 C. C.
A. 661, 108 Fed. 747—pp. 494, 546,
547,

—— v. St. Louis, etc. R. Co. (Tex.
Civ. App.), 158 S. W. 1055, 1056—
pp. 496, 545, 587.

Morrison v. Baltimore, etc., R. Co. (D.
C.), 40 App. Cas. 391, Ann. Cas.
1914C, 1026—pp. 35; 230, 232, 271.

—— v. Watson, 154 U. S. 111, 38 L,.
Ed. 927, 14 S. Ct. 995—p. 429.

Mosby v. United States, 116 C. C. A.
74, 194 Fed. 346—p. 440.

Mosher, Bailey v.

Mottley, Louisville, etc., R. Co. v. -

Moyer v. Pennsylvania R. Co. 247
Pac. 210, 93 Atl. 282—pp. 475, 527.

Mulligan v. Atlantic, etc, R. Co. (S.
C.), 88 S. E. 445—pp. 314, 327, 334,
340.

Murphy, Southern R. Co. v.

Mustell, Great Northern R. Co. vw.

Myers v. Pittsburgh Coal Co., 233 U.
S. 184, 58 L. Ed. 906, 34 S. Ct. 559—
p. 425.

Myrtle v. Nevada, etc., R. Co. (C. C.),
137 Fed. 193—pp. 555, 556, 557.

United

 

N

Napier, Allen v.

Narramore v. Cleveland, etc., R. Co.,
37 C. C. A. 499, 96 Fed. 298, 48 L.
R. A. 68—p. 537.

Nash v. Minneapolis, etc, R. Co.
(Minn.), 154 N. W. 957—pp. 76, 374,
394, 397.
XXXVIII

TABLE OF CASES.

 

Nashville, etc., R. Co. v. Alabama, 128
U. S. 96, 32 L. Ed. 352, 9 S. Ct. 28—
p. 461.

v. Banks, 156 Ky. 609, 161-S. W.

554—pp. 87, 96, 150, 153, 157, 359, 366.

Howard v.

Nashville, etc., Railway v. Anderson
(Tenn.), 185 S. W. 677—pp. 207,
282, 286, 287, 348, 373, 376, 377.

—— v. Henry, 158 Ky. 88, 164 S. W.
310—pp. 151, 172, 359, 365, 366, 367,
387, 389, 454, 502, 535, 546, 586.

Neal, St. Louis, etc., R. Co. v.

v. St. Louis, etc., R. Co., 71 Ark.
445, 78 S. W. 220—pp. 530, 534.

Neaves, Missouri, etc., R. Co.'v.

Neil v. Idaho, etc., Railroad, 22 Idaho
74, 125 Pac. 331—pp. 17, 22, 91, 117,
118, 127, 153, 157, 170, 399.

Nelson, Illinois Cent. R. Co. uv. |

—— v. Illinois Cent. R. Co. (Iowa),
155 N. W. 169—p. 10.

— v. Moloney, 174 U. S. 164, 43 L.
Ed. 934, 19 S. Ct. 622—p. 561.

v. Northern Pac. R. Co., 50 Mont.

516, 148 Pac. 388, 391—p. 125, 127,

130, 138, 305.

v. Southern R. Co. (C. C.), 172
Fed. 478—pp. 244, 245.

Nevada County, etc. R. Co., United
States vw.

Nevada, etc., R. Co., Myrtle wv.

Newell v. Baltimore, etc., R. Co. (C.
C.), 181 Fed. 698—pp. 234, 261.

New Jersey, Twining v.

Newkirk v. Pryor (Mo. App.), 183 5S.
W. 683—pp. 33, 74, 391.

New London, etc., R. Co., Vickery v.

New Orleans, Davidson v.

New Orleans Gas Co. v. Louisiana
Light Co., 115 U. S. 650, 661, 29 L,.
Ed. 516, 6 S. Ct. 252—p. 8.

New Orleans, etc, R. Co., Gordon v.

La Cassev. ,

—— Penny vw.

Newton, Atlantic, etc., R. Co. v.

New York, Erie R. Co. v.

—— New York, etc., R. Co. vw.

New York Cent. R. Co., Ruppell v.

New York Cent., etc., Railroad, Siegel

 

 

 

 

 

 

v.

New York Cent., etc., R. Co. McAu-
liffe v.

People v.

—— Tyndall v.

—— United States v.

New York Life Ins. Co., Slocum v.
New York Transp. Co. v. Garside, 85
C. C. A. 285, 157 Fed. 521—p. 322.
New York, etc., R. Co., Baugham vw,

Bintondo v.
—— Bogart v.
—— Carr v.

 

 

 

New York, etc., R. Co. v. Carr, 238 U.
S. 260, 35 S. Ct. 780—pp. 62, 87, 95,
96, 144.

Farley v.

Gillis v.

Hogan v.

Hoxie v.

Hubert wv.

Hughes wv.

Knowles v.

Larabee v.

Millette v.

Mondou v.

v. New York, 165 U. S. 628, 41

Ed. 853, 17 S. Ct. 418—p. 461.

v. Niebel, 131 C. C. A. 248, 214
Fed. 952—pp. 128, 155, 161, 162, 310,
373, 376, 391, 440.

—— Ullrich v.

—— United States v.

—— v. United States, 212 U. S. 500,
505, 53 L. Ed. 624, 29 S. Ct. 309—

Pe PEELTTT TT

Fed. 331—p. 125.

—— Ransom v.

—— Rogers v.

—— Tonsellito v. :

—— yv. Vizvari, 126 C. C. A. 632, 210
Fed. 118, 120—pp. 121, 122, 134, 170,
177, 179, 186, 187, 188, 300.

—— Waleh v.

Wingfield v.

Nicholas v. Chesapeake, etc., R. Co.,
127 Ky. 310, 105 S. W. 481,17 L. R.
A., N. S., 861—p. 557.

Nichols v. Chesapeake, etc., R. Co., 115
C. C. A. 601, 195 Fed. 913—pp. 502,
526, 541, 542, 547, 548, 559, 560, 562,
574, 575.

Niebel, New York, etc, R. Co. v.

Niles v. Central Vermont R. Co., 87
Vt. 356, 89 Atl. 629—pp. 38, 133, 138,
163, -180, 312, 313, 314, 315, 318, 322,
343, 354, 415, 416,

Noel v. Quincy, etc, R. Co. (Mo.
App.), 182 S. W. 787—pp. 88, 96, 452,
456, 458, 501, 586.

Nolan, Cincinnati, etc., R. Co. v.
Nordgard v. Marysville, etc., R. Co.
(D. C.), 211 Fed. 721—pp. 64, 323.

v. Marysville, etc., R. Co. (D. C.),

218 Fed. 737—pp. 15, 64.

Norfolk, etc, R. Co. v. Earnest, 229
US; 114, 57 L. Ed. 1096, 33 St. 654,
Ann. Cas. 1914C, 172—pp. 154, 155,
166, 353, 363, 388, 390, 391, 426.

v. Earnest, 131 C. C. A. 244, 214
Fed. 948, 950—pp. 152, 154, 155,
Ferebee v.

v. Ferrebee, 238 U. S. 269, 59 L.

Ed. 1303, 35 S. Ct. 781— pp. 263, 431,

439, 440.

 

 

 

 

 
TABLE OF CASES.

XXXIX

 

Norfolk, etc., R. Co., Fleming v.
—— v. Hazelrigg, 95 C. C. A. 637, 170
Fed. 551—pp. 588, 594.

—— v. Hazelrigg, 107 C. C. A. 66, 184
Fed. 828—pp. 534, 540, 541, 547, 548,
586, 588.

—  v. Holbrook, 235 U. S$. 625, 59
L. Ed. 392, 35 S. Ct. 143—pp. 371,
377, 378, 379.

— v. Holbrook, 131 C. C. A. 621, 215
Fed. 687—pp. 124, 126, 358, pp. 415,

Lassiter v.

Meyers v.

Ridge v.

Stafford v.

—— v. Stevens, 97 Va. 631, 34 S. E.
525, 46 L. R. A. 367—p. 385.

—— United States v.

—— v. United States, 101 C. C. A. 249,
177 Fed. 623—pp. 99, 453, 454, 456,
473, 474, 491, 494, 497, 498, 501, 504,
545, 567, 581, 582.

—— v. United States, 112 C. C. A. 46,
191 Fed, 302—pp. 453, 456, 511, 512,
513, 578, 581, 582, 584, 591, 592.

Norman v. Southern R. Co., 119 Tenn.
401, 104 S. W. 1088—p. 572.

North Carolina R. Co., Lloyd v.

Zachary wv.

—— v. Zachary, 232 U. S. 248, 58 L.
Ed. 591, 34 S. Ct. 305, Ann. Cas.
1914C, 159—pp. 17, 24, 37, 64, 66, 89,
95, 106, 116, 126, 143, 385, 431, 433,
437.

North Hudson, Dodge v.

Northeastern R. Co., Dunlap v.

Northern Cent. R. Co., Kane v.

Northern Pac. R. Co., Bjornsen v.

—— v. Charless, 162 U. S. 359, 40 L.
Ed. 999, 16 S. Ct. 848—p. 147.

—— Fogarty v.

vw. Hambly, 154 U. S. 349, 33 L.
Ed. 1009, 14 S. Ct. 983—p. 147.

—— Lauer v.

—— v. Maerkl, 117 C. C. A. 237, 198
Fed. 1, 5—pp. 69, 79, 144, 145, 146,
186, 192, 194, 365.

Malloy v.

Melzner v.

Nelson v.

Oliver v.

Opsahl v.

—— v. Peterson, 162 U. S. 346, 40 L.
Ed. 994, 16 S. Ct. 843—p. 147.

—— Plummer v.

Hr
a

 

 

LT |

— United States v.

v. United States, 129 C. C. A. 514,
213 Fed. 162, 168—pp. 612, 613, 621.
—— v. United States (C. C. A.), 213
Fed. 577—pp. 625, 626, 627, 642.

 

 

Northern Pac. R. Co. uv. United States
(D. C.), 220 Fed. 108—p. 624.

—— Vanordstrand v.

—  v. Washington, 222 U. S. 370, 56
L. Ed. 237, 32 S. Ct. 160—pp. 9, 11,
614, 615, 616, 617, 619.

Winfree v.

Northern Pac. Terminal Co., United
States v.

Norton v. Erie R. Co., 163 App. Div.
466, 148 N. Y. S. 769—pp. 100, 437.
— v. Erie R. Co., 83 Misc. Rep. 159,

144 N. Y. S. 656—pp 394, 395.

O
Headlining,

 

Oak Harbor
Wheeler v.

Oberlin v. Oregon-Washington R., etc.,
Co., 71 Ore. 177, 142 Pac. 554—pp. 9,
38, 98, 161, 162, 171, 177, 300, 351, 355.

O’Connor wv. Chicago, etc., . Co.
(Wis.), 158 N. W. 343—pp. 121, 135,
136, 141.

Odom, |Missouri, etc., R. Co. v.

Ohio Valley Electric R. Co., Watts v.

Ohio Valley, etc., R. Co., McKee v.

Ohio, etc, R. Co., McKee v.

Okrzsezs v. Lehigh Valley R. Co.
(App Div.), 155 N. Y. S$. 919—p. 80.

Old Colony R. Co., Dacey v.

Oliver v. Houghton County St. R. Co.,
134 Mich. 367, 96 N. W. 434, 104 Am.
St. Rep. 607, 3 Am. & Eng. Ann.
Cas. 53—p. 196. :

—— v. Northern Pac. R. Co. (D. C.),
196 Fed. 432, 435—pp. 30, 37, 51, 53,
108, 109, 194, 201, 209, 266, 403.

Opsahl v. Northern Pac. R. Co., 78
Wash. 197, 138 Pac. 681—p. 177.

Orange, etc., R. Co., State v.

Oregon R., etc., Co., Lamphere v.

Oregon Short Line R. Co., United
States v.

Oregon-Washington R., etc., Co., Chad-
wick wv.

Gekas v.

Horton v.

Kamboris v.

Oberlin v.

Pfeiffer v.

— United States v.

—— v. United States, 138 C. C. A. 367,
222 Fed. 887—p. 621.

—— v. United States, 139 C. C. A. 142,
223 Fed. 596—pp. 607, 625, 633, 636.

Oregon, etc., Nav. Co., Zikos v.

Oregon, etc., R. Co., Anderson v.

Grow v.

United States v.

Osborne v. Cincinnati, etc., R. Co., 158
Ky. 176, 164 S. W. 818, Ann. Cas.
1915D, 449—pp. 139, 613, 622, 646.

—  v. Gray (U. S.), 36 S. Ct. 486—
p. 435.

Co.,

etc.,

 

 

 
XL

TABLE OF CASES.

 

Otos, Great Northern R. Co. v.

— Great Northern R. Co., 128 Minn.
283, 150 N. W. 992—pp. 82, 157, 369,
370, 401, 474.

Owens v. Chicago, etc., R. Co., 113
Minn. 49, 128 N. W. 1011—pp. 2, 26,
235, 236, 237.

Oxley Stave Co. v. Butler County, 166
U. S. 648, 41 L. Ed. 1149, 17 S. Ct.
709—p. 429.

P

Pace, Missouri, etc., R. Co. v.

Pacific Coast R. Co. v. United States,
98 C. C. A. 31, 173 Fed. 448, 452—pp.
451, 469, 585.

Pacific Elect. R. Co. v. Los Angeles,
194 U. S. 112, 48 L. Ed. 896, 24 S.
Ct. 586—p. 234.

Packet Co. v. McCue (U. S.), 17 Wall.
508, 21 L. Ed. 705—p. 113.

Padgett, Seaboard Air Line Railway v.

Seaboard, etc., Railway, 99 S. C.
364, 83 S. E. 633—pp. 90, 137, 187, 349.

Pankey v. Atchison, etc., R. Co., 180
Mo. App. 185, 168 S. W. 274—pp. 127,
137, 153, 158, 159, 248.

Papoutsikis v. Spokane, etc., R. Co.
(Wash.), 153 Pac. 1053—pp. 117, 130,
159, 331, 407. *

Parker v. Atlantic, etc., R. Co., 87 N.
J. L. 148, 93, Atl. 574, L. R. A. 1915D,
1190—pp. 38, 164, 452, 495, 499, 586.

Parsons v. Delaware, etc. Co. 167
App. Div. 536, 153 N. Y. S. 179—p. 80.

Passaic, The. :

Patton v. Cincinnati, etc., Railway (D.
C.), 208 Fed. 29, 30—pp. 248, 249, 251,
258, 259.

—— v. Texas, etc., R. Co, 179 U. S.
658, 45 L. Ed. 361, 21 S. Ct. 275—pp.
330, 332.

Patrick, Louisville, etc., R. Co. v.

Patry v. Chicago, etc., R. Co., 265 IIL.
310, 106 N. E. 843—pp. 17, 413, 422.

Pawnee, The.

Payne v. New York, etc., R. Co., 201
N. Y. 436, 95 N. E. 19—pp. 267, 281,
288.

Pearce, Chicago, etc. R. Co. v.

Pearson, Louisville, etc., R. Co. v.

Pecos, etc., R. Co. v. Rosenbloom (U.
S.), 36 S. Ct. 390—pp. 101, 202.

— v. Rosenbloom (Tex.), 177 S. W.
952—p. 101.

Pedersen 7. Delaware, etc., Railroad
(C. C.), 184 Fed. 737, 739—pp. 4, 19,
27, 28, 34.

—— v. Delaware, etc., R. Co., 229 U.
S. 146, 57 L. Ed. 1125, 33 S. Ct. 648,
Ann. Cas. 1914C, 153—pp. 17, 20, 24,
62, 67, 68, 70, 71, 73, 76, 77, 80, 84, 87.

—— v. Delaware etc, R. Co. 117 C.
C. A. 33, 197 Fed. 537—pp. 67, 84, 104,
Tih, 316,

 

 

Peek v. Boston, etc., Railroad (D. C.),
223 Fed. 448, 450—pp. 37, 88, 92, 248.

Peery v. Illinois Cent. R. Co., 123 Minn.
264, 143 N. W. 724—pp. 88, 400.

Pelton v. Illinois Cent. R. Co. (Iowa),
150 N. W. 236, 239—pp. 20, 21, 39,
163, 266, (288, 295, 296, 302, 338, 351,
363, 400, 420.

Pennell v. Philadelphia, etc. R. Co.,
231 U. S. 675, 58 L. Ed. 430, 34 S.
Ct. 220—pp. 447, 450, 489, 490, 563.

— v. Philadelphia, etc. R. Co., 122
c. C. A. 77, 203 Fed. 681—pp. 489,
490.

Pennsylvania Co. v. Cole, 131 C. C. A.
244, 214 Fed. 948—pp. 128, 154, 339,
341, 357, 393.

—  v. Donat, 239 U. S. 50; 36 S. Ct.
4—pp. 99, 327, 438.

—— uv. Sheeley, 137 C. C. A. 471, 221
Fed. 901—pp. 160, 161, 162, 341, 353,
354, 359, 388, 392, 411, 412, 440, 441.

Waina v.

Pennsylvania R. Co., Bixler v.

Boldt v.

Boyle v.

Collins v.

Connelley vw.

Fairchild v.

Farrell v.

Glunt v.

Golligher wv.

v. Goughnour, 126 C. C. A. 39,
208 Fed. 961—pp. 139, 144, 145, 147,
163, 357.

—— Granger v.

—— Hammil v.

—— Hench wv.

—— wv. Knox, 134 C. C. A. 426, 218 Fed.
748—pp. 64, 87, 304, 332.

—— Moyer v.

Saiek v.

United States v.

Penny v. New Orleans, etc., R. Co., 135
La. 962, 66 So. 313—pp. 37, 199, 202,
204, 210, 215, 237, 267.

People v. Erie R. Co., 135 App. Div.
767, 119 N. Y. S. 873—pp. 609, 615.
—— v. Erie R. Co, 198 N. Y. S. 369,

91 N. E. 849—p. 618.

—— v. New York Cent., etc, R. Co.,
163 App. Div. 79, 148 N. Y. S, 495—
Pp. 614, 615.

Peoria, etc.. R. Co., Gableman v.

Lucas v.

Pere Marquette R. Co., Fernette v.

United States v.

Perey v. Illinois Cent: R. Co., 128 Minn.
119, 150 N. W. 382, 1103—p. 88.

Perryman, Ft. Worth Belt R. Co. wv.

Peters, Southern R. Co. v.

Pfeiffer v, Oregon-Washington R., ete.,
Co., 74 Ore. 307, 144 Pac. 762—pp.
Reet 144, 147, 154, 161, 162, 163, 316,

 

 

MTT ELT

 

 

 

 
TABLE OF CASES

\

XL

 

Phalen, Catts v.

Philadelphia, etc., R. Co., Farrugia v.

Feaster v.

—— Hogarty v.

—v. McConnell
Fed. 263—p. 72.

— McGovern v.

— Pennell v.

—— Reese v.

—— v. Schubert, 224 U. S. 603, 56 L.
Ed. 911, 32 S. Ct. 589—pp. 30, 51, 52,
53, 56.

—— Shanley v.

—  v. Tucker, 35 App. D. C. 123—
pp. 6, 21, 27, 113, 188, 154, 172, 388.

—— United States vw.

—— v. United States, 111 C. C. A. 661,
191 Fed. 1—pp. 467, 514.

—— West Jersey Trust Co. v.

—— Whalley v.

—— Winkler v.

—— v. Winkler, 4 Penn. (Del.) 387, 56
Atl. 112—pp. 495, 496, 500, 503, 527,
534, 535, 586.

Pickens, Atchison, etc., R. Co. wv.

Pierson v. New York, etc., R. Co., 83
N. J. L. (54 Vr.), 661, 85 Atl. 233—

pp. 17, 67, 104.

Pillsbury, Southern Pac. Co. v.

Pipes v. Missouri Pac. R. Co. (Mo.),
184 S. W. 79—pp. 262, 271, 273, 336,
418.'

Pitts, Atchison, etc., R. Co. v.

Pittsburgh Coal Co., Myers v.

Pittsburgh, etc, R. Co. v. Farmers’
Trust, etc., Co. (Ind.), 108 N. E. 108
—pp. 20, 30, 31, 100, 101, 142, 144, 177,
181, 281, 284, 304, 350, 358.

—— v. Glinn, 135 C. C. A. 46, 219 Fed.
148—pp. 108, 303, 326, 415.

 

(C. C. A.), 228

—— v. Mitchell, 175 Ind. 196, 91 N. E. |

735, 93 N. E. 996—p. 235.
United States v.

Plemmons, Missouri, etc., R. Co. v.
Plummer v. Northern Pac. R. Co. (C.
C.), 152 Fed. 206—pp. 2, 26, 27, 35.

Pontillo, New York, etc., R. Co. v.

Pontius, Chicago, etc., R. Co. v.

Poole, Grand Trunk, etc. R. Co. v.

Missouri, etc., R. Co. v.

Poor v. Watson, 92 Mo. App. 89—p.
216.

Pope, Kansas City, etc., R. Co. v.

Popplar, Minneapolis, etc., R. Co. v.

— v. Minneapolis, etc, R. Co., 121
Minn. 413, 141 N. W. 798, Ann. Cas.
1914D, 383—pp. 452, 495, 502, 538,
547, 548, 549, 550.

Porter, Illinois Cent. R. Co. wv.

Portland Terminal Co. v. Jones (C. C.
A.), 227 Fed. 8—pp. 125, 136, 137, 144,
158, 186.

Powell, Freeman v.

Powers v. Chesapeake, etc., R. Co., 169
U. S. 92, 100, 42 L. Ed. 673, 18 S.
Ct. 264—pp. 557, 559.

 

 

 

Prater, Texas, etc, R. Co. v.

Proffit, Chesapeake, etc., R. Co. v.

Pryor, Newkirk v.

Public Service Comm., Cleveland, etc.,
R. Co. v.

Puckett, Southern R. Co. v.

— Wichita Falls, etc., R. Co. v.

Pullman Southern Car Co., Chicago,
etc., R. Co. v.

Purdy, Erie R. Co. v.

Putnam, Vicksburg, etc., R. Co. v.

Pyles v. Atchison, etc., "2 Co, (Kan.),
155 Pac. 788—pp. 124, 408.

 

Q
Quincy, etc., R. Co., Noel v.
Shohoney v.
R

Racine, etc., R. Co., Dinsmore v.
Railroad Comm., Southern R. Co. v.
Railroad Co., Dennick v.

v. Mississippi, 102 U. S. 135,
L. Ed. 96—p. 253.

—— v. Stout (U. S.), 17 Wall 657,
L. Ed. 745—p. 186.

Railway Co. v. Sweet, 60 Ark. 550,
S. W. 571—p. 378.

Railway Transfer Co., Denoyer v.

La Mere v.

— McDonald v.

Raines v. Southern R. Co., 169 N. C.
189, 85 S. E. 294--pp. 150, 153, 156,
360, 380, 382.

Ramsey, United States v.

Randall v. Minneapolis, etc., R. Co.
(Wis.), 156 N. W. 629—pp. 12, 35.

Ransom v. New York, etc, R. Co.
(O.), 112 N. E. oe 229,

Rasmussen, Texas, etc., Co. wv.

Reaves, Atlantic, ‘etc., R. on v.

Reed, Copper River, etc., R. Co. wv.

Reek, International, etc., R. Co. v.

Reese v. Philadelphia, etc., R. Co., 239
U. S. 463, 36 S. Ct. 134—>pp. 121, 122,
135.

Reeve v. Northern Pac.
Wash. 268, 144 Pac.
119, 144, 148, 149.

Relief Dept., Rodell v.

Renn, Seaboard Air Line Railway v.

——v. Seaboard Air Line Railway
(N. C.), 86 S. E. 964—pp. 38, 262,
263, 274, 281, 292, 310, 315.

— Seaboard, etc., Railway v.

— v. Seaboard, etc, Railway (N.
C.), 86 S. E. 964—pp. 119, 135, 179,
341.

Rentz, Missouri, etc., R. Co. v.

Rhoda, Louisville, etc., R. Co. v.

Rice v. Boston, etc., Railroad (D. C.),
203 Fed. 580, 581—pp. 248, 254, 255,
267, 281.

 

26

21

31

 

R. Co.,
63—pp.

82
117,
XLII

TABLE OF CASES.

 

Rich v. St. Louis, etc., R. Co., 166 Mo.
App. 379, 148 S. W. 1011—pp. 9, 11,
33, 38, 82, 99, 202, 203, 217.

Richardson, Grand Trunk R. Co. w.

Richelieu v. Union Pac. R. Co., 97
Neb. 360, 149 N. W. 772—pp. 223,
405. ee

Ridge v. Norfolk, etc., R. Co., 167 N.

C. 510, 83 S. E. 762—pp. 121, 124,
132, 140, 141, 142, 318, 319, 324, 330,
333, 346.

Rief v. Great Northern R. Co., 126
Minn. 430, 148 N. W. 309—p. 23, 54,

320, 369.

Rigsby, Texas, etc. R. Co. v.

Riley v. Minneapolis, etc, R. Co.
(Minn.), 156 N. W. 272—pp. 124,
417.

 

United States v.
Rio Grande R. -Co.,
Trans. Co. v.
Rio Grande, etc., R. Co. v. Campbell,
44 Colo. 1, 96 Pac. 986—pp. 465, 587.
-—— United States w.
Rivera v. Atchison, etc, R. Co. (Tex.
Civ. App.), 149 S. W. 223—pp. 9
38, 199, 200, 201.

Tellwide Power

Riverside Mills, Atlantic Coast Line
R. Co. v.
Roach v. Great Northern R. Co.

(Minn.), 158 N. W. 232—pp. 134,

188, 314.

Roberts, Delano v.

Robertson v. Chicago, etc., R. Co., 122
Wis. 66, 99 N. W. 433, 66 L. R. A.
919, 106 Am. St. Rep. 925—p. 211.

Robinson v. Baltimore, etc., R. Co.,
237 U. S. 84, 35 S. Ct. 491—pp. 20,

54.

Rodell v. Relief Dept.,
137 N. W. 174—p. 58.

Rodgers, St. Louis, etc., R. Co. wv.

Roe, Ex parte.

—— Kansas, etc., R. Co. wv.

Rogers, Chicago, etc., R. Co. v.

—— Illinois Cent. R. Co. »v.

—— Missouri, etc., R. Co. wv.

v. New York, etc., R. Co. (App.
Div.), 157 N. Y. S. 83—pp. 38, 295,
308, 309, 413.

——  v. United States, 141 U. S. 548,
35 L. Ed. 853, 12 S. Ct. 91—p. 599.

Rosenbloom, Pecos, etc., R. Co. v.

Rosney v. Erie R. Co., 68 C. C. A. 155,
135 Fed. 311—pp. 483, 586, 587, 588.

Ross v. St. Louis, etc., R. Co., 93 Kan.
517, 144 Pac. 844—pp. 358, 360.

— v. Sheldon (Iowa,), 154 N. W.
499—pp. 64, 68, 74, 302, 326, 337, 440.

Rousaville v. Central R. Co. (N. J.),
94 Atl. 392—p. 48.

Rowlands v. Chicago, etc., R. Co., 149

- Wis. 51, 135 N. W. 156—pp. 38, 136,
187, 271, 277, 283, 386, 400.

118 Minn. 449,

 

 

Ruck v. Chicago, etc., R. Co., 153 Wis.
158, 140 N. W. 1074—pp. 76, 81.

Rudolph, Atchison, etc., R. Co. v.

Ruppell v. New York Cent. R. Co.
(App. Div.), 157 N. Y. S$. 1095—pp.
66, 93, 94.

Russell, Erie R. Co. v.

Wheeling Terminal R. Co. v.

Rutter, Shoshone Min. Co. wv.

Ss

Saar v. Atchison, etc., R. Co. (Kan.),
155 Pac. 954, 955—pp. 129, 408.

Sadler, Missouri, etc., R. Co. v.

Saiek v. Pennsylvania R. Co. (C. C.),
193 Fed. 303—pp. 248, 249.

St. Bernard v. Shane (D. C.), 201 Fed.
453—p. 211.

St. Joseph, etc., R. Co., Moore v.

v. United States (C. C. A.), 232
Fed. 349—pp. 613, 620, 626.

St. Lawrence, etc., R. Co., Lett v.

St. Louis Cordage Co. v. Miller, 61 C.
C. A. 477, 126 Fed. 495, 68 L. R. A.

 

 

551—p. 539.

St. Louis, etc. R. Co. v. Anderson
(Ark.), 173 S. W. 834—pp. 85, 151,
164.

—— v. Arkansas, 240 U. S. 518, 36 S.
Ct. 443—p. 462.

— Bottoms wv.

— v. Brothers (Tex. Civ. App.), 165
S. W. 488—pp. 111, 199.

— v. Brown (U. S.), 36 S. Ct. 602—
pp. 128, 242, 310, 350, 387, 416.

—— v. Brown (Okla.), 144 Pac. 1075
—pp. 94, 128, 129, 130, 239, 240, 241,
244, 304, 400, 409.

—— v. Callahan, 194 U. S. 628, 48 L.
Ed. 1157, 24 S. Ct. 857— p. 31.

—— v. Clampitt (Okla.), 154 Pac. 40—
Pp. 312, 315, 322, 323, 327, 331, 351,
384,

—— v. Coke, 118 Ark. 49, 175 S. W.
1177—pp. 46, 278, 309.

—— v. Conarty, 238 U. S. 243, 59 L,.
Ed. 1290, 35 S. Ct. 785—pp. 527, 528.

—— v. Conarty, 106 Ark. 421, 155 S.
W. 93—pp. 192, 194, 248, 344, 365,
456, 51%, 521,

uv. Conley, 110 C. C. A. 97, 187
Fed. 949—pp. 2, 26, 30, 34, 51, 52,
136, 187, 236.

— 7, Cox (Tex. Civ. App.), 159 S.
W. 1042—p. 277.

—— v. Craft, 237 U. S. 648, 59 L. Ed.
1160, 35 S. Ct. 704—pp. 190, 191, 193,
193, 196, 365, 370, 399.

St. Louis, etc., R. Co. v. Craft, 115
Ark. 483, 171 S. W. 1185—pp. 194,
196, 395, 399.

—_ v. Dawson, 68 Ark. 1, 56 S. W. 46
—p. 196.

 
TABLE OF CASES.

XLUUI

 

St. Louis, etc., R. Co., Delk, v.

Duke v.

—  v. Duke, 112 C. C. A. 564, 192
Fed. 306—pp. 131, 136, 191, 313, 340,
377, 378, 411.

— Dungan v.

— Fithian v.

—  v. Fithian, 106 Ark. 491, 155 S.
W. 88— pp. 121, 129, 130, 344.

—— v. Geer (Tex. Civ. App.), 149 S.
W. 1178, 1180—pp. 36, 202, 218, 236,
237, 373, 378, 384.

—— v. Graham, 83 Ark. 61, 102 S. W.
700—p. 211.

—— Hawkins v.

—— Hearst v.

—— Hegberg v.

—— v. Hesterly, 228 U. S. 702, 57 L.
Ed. 1031, 33 S. Ct. 703—pp. 36, 39,
40, 47, 190, 192, 194, 201, 217, 266,
279, 337, 364, 365, 399, 431.

—  v. Hesterly, 98 Ark. 240, 135 S.
W. 874—pp. 9, 17, 39, 46, 192, 235,
270, 274, 275, 277, 278, 399, 413.

—— v. Keller, 90 Ark. 308, 119 S. W.
254—p. 55.

— McElvain v.

— McIntosh v.

v. McNamare, 91 Ark. 515, 122 S.
W. 102—pp. 10, 39, 40, 462.

—— v. McWhirter, 229 U. S. 265, 277,
57 L. Ed. 1179, 33 S. Ct. 858—pp.
430, 432, 433, 436, 646, 647.

—  v. McWhirter, 145 Ky. 427, 140
S. W. 672—pp. 237, 257, 608, 609, 650.

—— Morris vw.

—— Neal v.

—— v. Neal, 83 Ark. 591, 98 S. W. 958,
963—pp. 558, 560.

— Rich v.

—— v. Rodgers, 118 Ark. 263, 176 S.
W. 696—pp. 153, 194, 362, 378, 379,
384, 386.

—— Ross v.

—— v. Seale, 229 U. S. 156, 57 L. Ed.
1129, 33 S. Ct. 651, Ann. Cas. 1914C,
156—pp. 24, 36, 39, 47, 95, 100, 101,
190, 201, 203, 204, 210, 218, 270, 294,
297, 337, 432, 433, 434, 439.

—— v. Seale (Tex. Civ. App.), 148 S.
W. 1099—pp. 203, 207, 275, 439.

v. Sharp, 115 Ark. 308, 171 S. W.
95—pp. 37, 123, 153, 162, 287, 398.

—— Smith v.

—— v. Smith (Tex. Civ. App.), 171 S.
W. 512—p. 207.

v. Snowden (Okla.), 149 Pac.
1083, 1084—pp. 38, 138, 171, 188, 189,
421.

—— Spain wv.

—— Symonds wv.

—— v. Taylor, 210 U. S. 281, 52 L. Ed.
1061, 28 S. Ct. 616, 21 Am. Neg. Rep.
464—pp. 436, 443, 450, 452, 453, 455,

 

 

 

 

457, 458, 499, 509, 510, 525, 526, 527,
555, 567, 600, 601, 602, 603.

St. Louis, etc., R. Co. v. Taylor, 71 Ark.
445, 78 S. W. 220, p. 453.

— v. Taylor, 83 Ark. 591, 98 S. W.
958—p. 453.

—— United States v.

—— v. United States, 106 C. C. A.
136, 183 Fed. 770—pp. 448, 551, 584,
593, 594.

—— v. Vann, 98 Ark. 145, 150, 135°S.
W. 816—p. 362.

—— Vaughan vw.

—— Watson v.

—  v. Wilkes (Tex. Civ. App.), 159
S. W. 126—pp. 531, 546.

—— York v.

—— v. York, 92 Ark. 554, 123 S. W.
376—pp. 513, 526, 532, 542, 548.

Salmon v. Southern R. Co. (Tenn.),
180 S. W. 165—pp. 105, 115.

San Antonio, etc., R. Co. v. Littleton
(Tex. Civ. App.), 180 S. W. 1194—
pp. 80, 271, 272, 273, 288.

—— v. Wagner (U. S.), 36 S. Ct. 626—
pp. 18, 141, 151, 412, 414, 417, 423,
489, 494, 497, 526, 538, 571, 573, 576.

—  v. Wagner (Tex. Civ. App.), 166
S. W. 24—pp. 151, 172, 450, 495, 496,
527, 579.

Sanbo wv. Union Pac. Coal Co. (C. C.),
130 Fed. 52—p. 211

Sanders v. Charleston, etc., R. Co., 97
S.C. 50, 81 S. E. 283—p. 115.

Sandidge wv. Atchison, etc., R. Co., 113
C. C. A. 653, 198 Fed. 867—pp. 121,
122, 128, 162, 163, 164, 179, 180, 323,
328.

San Pedro, etc., R. Co. v. Davide, 127
C. C. A. 454, 210 Fed. 870—pp. 69,
113. ‘

—— v. United States, 130 C. C. A. 28,
213 Fed. 326, Ann. Cas. 1914D, 1238
—pp. 606, 613, 623, 625, 626, 627.

— v. United States, 136 C. C. A.
343, 220 Fed. 737—pp. 612, 613, 638,
640, 642, 645.

Santa Fe Cent. R. Co., Friday vw.

Samford, Houston, etc., R. Co. v.

Saunders v. Southern R. Co., 167 N.
C. 375, 83 S. E. 573—pp. 77, 116, 120,
121, 123, 124, 1538, 154, 382.

Sauter, Columbia, etc., R. Co. wv.

Sayward v. Denny, 158 U. S. 180, 39 L.
Ed. 941, 15 S. Ct. 777—p. 430.

Schaffer, Michigan Cent. R. Co. wv.

Schlemmer v. Buffalo, etc., R. Co., 205
U.S. 1, 51 L. Ed. 681, 27 S. Ct. 407—
pp. 490, 531, 535, 536, 537, 548, 549,
569, 573, 576, 579, 588, 601, 602.

— v. Buffalo etc., R. Co., 220 U. S.
590, 55 L. Ed. 596, 31 S. Ct. 561—
pp. 534, 535, 537, 538, 539, 543, 544,
593, 602, 604.
XLIV

TABLE OF CASES.

 

St. Louis, etc., R. Co. v. Buffalo, etc., R.

Co., 222 Pa. 470, 71 Atl. 1053—p. 547.

Schreiber v. Sharpless, 110 U. S. 76,
80, 28 L. Ed. 65, 3 S. Ct. 423—pp.
191, 264.

Schroeder, Atchison, etc., R. Co. v.

Schubert, Philadelphia, etc., R. Co. v.

Schweig v. Chicago, etc, R. Co. (D.
C.), 205 Fed. 96—pp. 631, 647.

—— v. Chicago, etc., R. Co., 132 C. C.
A. 660, 216 Fed. 750—pp. 173, 181,
631.

Scott, Missouri, etc., R. Co. wv.

Seaboard Air Line R. Co., Horton vw.

Seaboard Air Line Railway, Duvall v.

v. Duvall, 225 U. S. 477, 482, 66
L. Ed. 1171, 1174, 32 S. Ct. 790—
pp. 45, 270, 276, 415, 430, 436.

— v. Horton, 233 U. S. 492, 58 L.
Ed. 1062, 34 S. Ct. 635, L. R. A.
1915C, 1, Ann. Cas. 1915B, 475—pp.
37, 117, 118, 119, 120, 121, 133, 144,
145, 150, 170, 171, 173, 176, 181, 183,
184, 305, 356, 360, 414, 433.

— v. Padgett, 236 U. S. 668, 59 L.

 

Ed. 777, 35 S. Ct. 481—pp. 349, 432,

434, 436.

—— Renn v.

—— v. Tilghman, 237 U. S. 499, 59 L,
Ed. 1069, 35 S. Ct. 653—pp. 151, 152,
153, 156, 392.

Seaboard, etc., R. Co., Dooley wv.

Horton wv.

—— Kenney v.

—— wv. Moore, 228 U. S. 433, 57 L. Ed.
907, 33 S. Ct. 580—pp. 303, 305, 306,
325, 416, 427, 428.

— v. Moore, 113 C. C. A. 668, 193
Fed. 1022—p. 306.

Tilghman v.

Seaboard, etc., Railway v. Horton, 239
U.S. 595, 36 S. Ct. 180—pp. 161, 165,
167, 168, 169, 170, 171, 185, 188, 418.

—— v. Kenney (U. S.), 36 S. Ct. 458
—pp. 37, 202, 217, 228, 437.

— Koennecke v.

—— v. Koennecke, 239 U. S. 352, 36
S. Ct. 126—pp. 99, 127, 324, 405.

— Lorick v.

— Padgett v.

—  v. Renn (U. S.), 36 S. Ct. 567—
Pp. 263, 264, 201, 292, 293, 294, 350,
354, 436, 437, 603.

Seale, St. Louis, etc., R. Co. v.

Sears v. Atlantic Coast Line R. Co.,
139 N. C, 446, 86 S. E. 176—p. 99.
—— wv. Atlantic, etc, R. Co. 169 N. C.
446, 86 S. E. 176—pp. 151, 172, 369,

418.

Second Employers’ Liability Cases, 223
U. S. 1, 56 L. Ed. 327, 32 S. Ct 169

—pp. 1, 2, 3, 4, 5, 9, 12, 16, 20, 26, 28,

29, 30, 31, 35, 36, 37, 38, 39, 51, 52,

 

 

 

53, 82, 84, 144, 145, 175, 204, 217, 236,
237, 238, 243, 244, 391.

Sells v. Atchison, etc., R. Co. (Mo.),
181 S. W. 106—pp. 38, 44, 153, 202,
216, 262, 295, 296, 298, 299, 308.

Shade v. Northern Pac. R. Co. (D.
C.), 206 Fed. 353-—pp. 15, 234, 278.

Shane, St. Bernard vw.

Shanks v. Delaware, etc., R. Co., 239
U. S. 556, 36 S. Ct. 188—pp. 17, 41,
62, 63, 81, 106.

—— v. Delaware, etc, R. Co., 214 N.
Y. 413, 108 N. E. 644—p. 78.

Shanley v. Philadelphia, etc., R. Co. (D.
C.), 221 Fed. 1012—pp. 17, 98, 303.

Shannon v. Boston, etc., Railroad (N.
H.), 92 Atl. 167—pp. 38, 231.

Sharp v. Cincinnati, etc, R. Co.
(Tenn.), 179 S. W. 375—p. 201.

St. Louis, etc., R. Co. v.

Sharpless, Schreiber v.

Shaw, Chesapeake, etc., R. Co. v.

Sheeley, Pennsylvania Co. v.

Sheldon, Ross wv.

Sherer, Texas, etc., R. Co. v.

Sherlock v. Alling, 93 U. S. 99, 23 L,
Ed. 819—p. 9.

Shewalter, Carolina, etc., Railway v.

Shiflett, Chesapeake, etc., Railway v.

Shohoney v. Quincy, etc., R. Co., 223
Mo. 649, 122 S. W. 1025—pp. 498,
499, 557, 559, 560.

Shoshone Min. Co. v. Rutter, 177 U.
S. 505, 44 L. Ed. 864, 20 S. Ct. 726—
p. 245.

Shugart v. Atlanta, etc., R. Co., 66 C.
C. A. 379, 384, 133 Fed. 505, 510—p.
138.

Shulthis v. McDougal, 225 U. S. 561,
56 L. Ed. 1205, 32 S. Ct. 704—p. 555.

Siegel v. New York Cent., etc., Rail-
road (C. C.), 178 Fed. 873, 876—pp.
477, 519, 520.

Siegesmund v. Chicago, etc., R. Co.
Cc A.), 229 Fed. 956—pp. 153,

 

186.

Siewert, Texas, etc, R. Co. v,

Simmons, Southern R. Co. v.

Simrall, Louisville, etc, R. Co. v.

Sims v. Missouri Pac. R. Co., 177 Mo.
App. 18, 163 S. W, 275—p. 33.

Skaggs, Illinois Cent. R. Co. v.

v. Illinois Cent. R. Co., 124 Minn.
503, 145 N. W. 381, 51 L. R. A., N.
S., 40—pp. 145, 147, 148, 354, 393,

Skotzy, Alabama, etc, R. Co. v.

Slavin, Toledo, etc, R. Co. v,

Slocum v. New York Life Ins. Co., 228
U. S. 364, 57 L. Ed. 879, 33 S. Ct.
523, Ann. Cas. 1914D, 1029—p, 323.

Smith v. Alabama, 124 U. S. 465, 31
L. Ed. 508, 8 S. Ct. 564—pp. 174, 460.

—— v. Atlantic, ete, R, Co., 127 C.
C. A. 311, 210 Fed. 761—pp. 151, 157
163, 166, 291, 292, 293, 452, 596.”

—— Baltimore, etc, R. Co. v,

 
TABLE OF CASES.

Smith v. Camas Prairie R. Co. (D. C.),
216 Fed. 799—pp. 17, 37, 257.

—— v. Detroit, etc, R. Co. (C. C.),
175 Fed. 506—pp. 261, 271, 275.
— v. Great Northern R. Co. (Minn.),

158 N. W. 46—p. 133.
—— v. Industrial Acci. Comm. (Cal.),
147 Pac. 600—p. 103.

—— Louisville, etc., R. Co. v.

—— v. Northern Pac. R. Co., 79 Wash..

448, 140 Pac. 685—pp. 280—368, 399,
421.

—— v. Great Northern R. Co. (Minn.),
158 N. W. 46—pp. 407, 457, 527.

— uv. St. Louis, etc., R. Co., 95 Kan.
451, 148 Pac. 759—pp. 59, 121, 132,
179, 318, 319.

— Southern R. Co. v.

— United States wv.

Snead v. Central, etc., R. Co. (C. C.),
151 Fed. 608—pp. 2, 13, 26, 27, 30,
52. s

Snowden, St. Louis, etc., R. Co. v.

Snyder v. Great Northern R. Co., 88
Wash. 49, 152 Pac. 703—pp. 98, 135,
320, 388.

—— Southern R. Co. wv.

Solan, Chicago, etc., R. Co. w.

_Solomon, Erie R. Co. v.

South Covington, etc., R. Co. v. Finan,
153 Ky. 240, 155 S. W. 742—pp. 36,
37, 119, 266, 304, 351.

South Dakota Cent. R. Co., Fletcher v.

Southern Pac. Co. vw. Allen, 48 Tex.
Civ. App. 66, 106 S. W. 441—pp. 447,
454, 456, 495, 530, 534, 535, 538, 541,
543, 547, 549, 550, 555.

—— Clark v.

——  v. De Valle Da Costa, 111 C. C.
A. 417, 190 Fed. 689—p. 200.

—— Guana v.

—— Hohenleitner v.

—— Jensen v.

—— Johnson v.

—— v. McGinnis, 98 C. C. A. 403, 174
Fed. 649—pp. 12, 36.

—— Montgomery v.

— vw. Pillsbury, 170 Cal. 782, 151 Pac.
277—pp. 48, 79. s

—— United States v.

v. United States, 137 C. C. A. 584,

222 Fed. 46, 48—pp. 629, 630—652.

v. Vaughan (Tex. Civ. App.), 165
S. W. 885—pp. 85, 311, 312, 340, 397.

Southern Pac. R. Co., Eng. v.

Southern R. Co. v. Ansley, 8 Ga. App.
325, 68 S. E. 1086—pp. 42, 46, 47,
270, 274, 297, 337, 354.

—— Bowers v.

—— Bramlett v.

Cain v.

v. Carson, 194 U. S. 136, 48 L.

Ed. 907, 24 S. Ct. 609—pp. 457, 559,

601.

 

 

 

 

XLV

\

Southern R. Co. v. Crockett, 234 U. S.
725, 58 L. Ed. 1564, 34 8. Ct. 897—pp.
170, 172, 433, 479, 489, 508.

—— Dewberry wv.

—— v. Gadd, 125 C. C. A. 21, 207 Fed.
277—pp. 179, 313, 339, 427, 428, 438.

—— Gray v.

—— v. Gray (U. §.), 36 S. Ct. 558, 559
—pp. 33, 117, 119, 120, 156, 174, 329.

— Hall v.

— v. Hawkins, 35 App. D. C. 313,
21 Am. & Eng. Ann. Cas. 926—p.
199.

— y. Hill, 139 Ga. 549, 77 S. E. 803—
pp. 121, 153, 154, 162, 350, 356, 360,
372, 387.

——  v. Howerton, 182 Ind. 208, 105
N. E. 1025, 1028, 106 N. E. 369—pp.

36, 37, 170, 235, 277, 278, 418.

Hyde v.

Ingle v.

Irvin v.

Jacobs v.

v. Jacobs, 116 Va. 189, 81 S. E.
99—pp. 38, 93, 94, 135, 169, 171, 175,
181, 184, 185, 361.

—— Kirbo v.

v. Lefan (Ala.), 70 So. 249—pp.
135, 312.
—— Lloyd v. ‘
— v. Lloyd (U. S.), 36 S. Ct. 210—
pp. 89, 148, 237, 247, 255, 279, 304,

324, 485.

— Long v.

— v. Murphy, 9 Ga. App. 190, 70
S. E. 972—pp. 98, 407.

—— Nelson v.

— — Norman v. ‘

—— v. Peters (Ala.), 69 So. 611, 614—
pp. 93, 138, 153, 158, 159, 170, 274,
299, 300, 311, 366.

— v. Puckett, 16 Ga. App. 551, 85
S. E. 809—pp. 105, 106, 121, 135, 249,
338.

—— v. Railroad Comm., 179 U. S. 23,
100 N. E. 337—p. 465.

—— v. Railroad Comm., 236 U. 5S. 439,
56 L. Ed. 661, 35 S. Ct. 304—pp. 458,
459, 460, 461, 465.

—_v. Railroad Comm., 179 Ind. 23,
100 N. E. 337—p. 461.

,

MI Ils

 

v. Railroad Comm. (Ind.), 109
E. 759, 760—p. 460.

Raines v.

Salmon vw.

Saunders v.

v. Simmons, 105 Va. 651, 55 S. E.

9—pp. 495, 498, 499, 500, 532, 541.

—— v. Smith, 123 C. C. A. 488, 205
Fed. 360—pp. 126, 384.

—— v. Snyder, 109 C. C. A. 344, 187
Fed. 492—pp. 442, 445, 447, 465, 476,
513, 615, 519.

—  v. Snyder, 124 C. C. A. 60, 205

sill lal
XLVI

TABLE OF CASES.

 

Fed. 868—pp. 465, 476, 518, 538, 541,
543.

Southern R. Co., Taylor v.

v. United States, 222 U. S. 20, 56
L. Ed. 72, 32 S. Ct. 2—pp. 444, 445,
461, 464, 465, 466, 573.

—— wv. Vessell (Ala.), 68 So. 336—pp.
219, 228, 224.

—— Walton v.

—— Worley vw.

Southern Railway, Bennett v.

v. Bennett, 233 U. S. 80, 58 L. Ed.

860, 34 S. Ct. 566—pp. 331, 349, 397,

437.

 

 

Carson v.

Spain v. St. Louis, etc., R. Co. (C. C.),
151 Fed. 522, 529—pp. 1, 2, 3, 7%, 26,
27, 32, 34.

Speckart v. German Nat. Bank (C. C.),
85 Fed. 12, 14—p. 558.

Spies v. Illinois, 123 U. S. 131, 31 L.
Ed. 80, 8 S. Ct. 21, 22--p. 429.

Spinden v. Atchison, etc., R. Co., 95
Kan. 474, 148 Pac. 747—pp. 125, 170,
175, 182, 183, 361.

Spokane, etc., R. Co., Burnett v.

Campbell v.

——  v. Campbell (U. S.), 36 S. Ct.
683—pp. 9, 15, 24, 37, 65, 141, 151,
152, 166, 301, 409, 452, 470, 481, 526,
529, 531.

—— v. Campbell, 133 C. C. A. 370,
217 Fed. 518—pp. 153, 157, 160, 409,
425, 442, 481.

Papoutsikis v.

—  v. United States (U. S.), 36 S.
Ct. 668—pp. 451, 470, 476, 579.

—— v. United States, 127 C. C. A. 61,
210 Fed. 243—p. 579.

Stafford v. Norfolk, etc, R. Co. (D.
C.), 202 Fed. 605-—pp. 234, 235, 244,
257.

Stalcup, Ft. Worth, etc., R. Co. v.

Staley v. Illinois Cent. R. Co., 268 Iil.
356, 109 N. E. 342, L. R. A. 1916A,
450—pp. 39, 48, 49, 50, 55, 79.

State, Atlantic, etc., R. Co. v.

—— v. Beaumont, etc., Railroad (Tex.
Civ. App.), 183 S. Ww. 120—pp. 459,
460.

—— Chicago, etc., R. Co. vu.

—— v. Chicago, etc., R. Co., 136 Wis.
407, 117 N. W. 686, 19 L. R. A, N.
S., 326—pp. 1, 2, 8, 26, 608, 609, 614,
615, 617, 618.

—— Detroit, etc., R. Co. v.

— Halsted v.

 

 

 

—— v. Missouri Pac. R. Co., 212 Mo.

658, 111 S. W. 500, 20 L. R. A, N.
S., 284—-pp. 615, 617.

—— v. Northern Pac. R. Co., 36 Mont.
582, 93 Pac. 945, 15 L. R. A, N. S.,,
134, 13 Am. & Eng. Ann. Cas. 144—
p. 615.

— v. Orange, etc., R. Co. (Tex. Civ.

 

App.), 181 S. W. 494—pp. 444, 460, 465.

State 7. Texas, etc. R. Co, 58 Tex.
Civ. App. 410, 124 S. W. 984—pp. 614,
615, 618.

—  v. Wabash R. Co., 238 Mo. 21,
141 S. W. 646—p. 617.

Steamboat New World v. King (U.
S.), 16 How. 469, 475, 14 L. Ed. 1019
—p. 142.

Stearns v. Chicago, etc., R. Co., 166
Iowa 566, 148 N. W. 128—pp. 465,
484, 546.

Steckstor v. Cleveland, R. Co.,
169 Ill. App. 40—p. 153.

Steel, Couch v.

Steele v. Atlantic, etc., R. Co. (S. C.),
87 S. E. 639, 642—pp. 152, 333, 452,
453, 456, 502, 527.

—— Chicago, etc., R. Co. v.

Stephens v. Chicago, etc., R. Co. (D.
C.), 206 Fed. 854—p. 258.

Stevens, Norfolk, etc., R. Co. v.

Stewart, Illinois Cent. R. Co. v.

Louisville, etc., R. Co. @.

Stoddart, Warren v.

Stone-Webster Engineering Corp. v-.
Collins, 118 C. C. A. 55, 199 Fed. 581

p. 113.

Stout, Railroad Co. v.

Stranahan, Buttfield v.

Strange, Louisville, etc., R. Co. wv.

Strauser v. Chicago, etc. R. Co. (D.
C.), 193 Fed. 293, 294—pp. 248, 249, 251.

Stringer, Vandalia R. Co. v.

Strother v. Union Pac. R. Co. (D. C.).
220 Fed. 731—pp. 254, 259, 339.

Sullivan v. Chicago, etc, R. Co.
(Wis.), 158 N. W. 321—p. 81.

Supervisors v. Kennicott, 94 U. S. 498,
24 L. Ed. 260—p. 424.

Suttle v. Choctaw, etc. R. Co. 75 C.
C. A. 470, 144 Fed. 668—pp. 494, 548.

Swan, Freeman v.

Swann, Cincinnati, etc, R. Co. v.

Swartwood v. Lehigh Valley R. Co.,

etc.,

 

169 App. Div. 759, 155 N. Y. S. 778
—pp. 123, 178, 304, 332.
Swearingen, Atchison, etc, R. Co. v.

Sweeney v. Erving, 228 U S. 233, 57
L. Ed. 815, 33 S. Ct. 416—p. 330.
Sweet v. Chicago, etc., R. Co., 157 Wis.
400, 147 N. W. 1054—pp. 122, 144,

145, 147, 165, 262, 372, 382, 422,
—. Railway Co. v.
Sylvester, Charleston, etc, R. Co. v.
Symonds v. St. Louis, etc., R. Co. (C.
C.), 192 Fed. 353, 356—pp. 248, 249,
251, 252.

T
Tack, Atchison, etc, R. Co. v,
Taylor, In re.
—— St. Louis, etc., R. Co.
— v. Southern R. Co. (C. co ), 178 Fed.
380—pp. 9, 28, 37, 68, 246.
TABLE OF CASES.

XLVII

 

Taylor v. Southern R. Co., 56 Ind.
App. 625, 101 N. E. 506—pp. 123, 144,
147, 272, 385.

— v. Taylor, 232 U. S. 363, 34 S. Ct.
350—pp. 30, 37, 40, 193, 217, 218, 219,
385.

—— v. Wells Fargo & Co., 136 C. C.
A. 402, 220 Fed. 796—p. 54.

Teel v. Chesapeake, etc, R. Co., 123
C. C. A. 240, 204 Fed. 918, 47 L. R.
A., N. S., 21—pp. 238, 248, 249, 251,
252, 414, 423.

Tellwide Power Trans. Co. v. Rio
Grande R. Co., 187 U. S. 569, 47 L.
Ed. 307, 23 S. Ct. 178—p. 561.

Texarkana, etc., R. Co. v Casey (Tex.
Civ. App.), 172 S. W. 729—pp. 129,
162, 164, 183, 206, 352.

Texas, Miller v.

‘Texas, etc., R. Co., Patton vw.

uv. Prater, 229 U. S. 177, 57 L. Ed.
1139, 33 S. Ct. 637—p. 438.

— v. Rasmussen (Tex. Civ. App.),
181 S. W. 212—pp. 247, 317, 318, 319,
367, 416.

Texas, etc, R. Co. v. Rigsby, 241 U.
S. 33, 39, 36 S. Ct. 482, 484—-pp. 18,
141, 142, 307, 446, 449, 452, 453, 464,
504, 521, 526, 529, 535.

— v. Rigsby, 138 C. C. A. 51, 222
Fed. 221—pp. 465, 466, 523, 524, 587.

—— v. Sherer (Tex. Civ. App.), 183
S. W. 404—pp. 98, 247, 479, 527.

v. Siewert (Tex. Civ. App.), 163

W. 624—p. 425.

State v.

Van Brimmer v.

v. White (Tex. Civ. App.), 177 S.
W. 1185—pp. 113, 181, 184.

— vu. Yerkes (Tex. Civ. App.), 156
S. W. 579—p. 11.

Thames Towboat Co., Kennerson v.

Thayer v. Denver, etc, R. Co. (N.
Mex.), 154 Pac. 691—p. 452.

The Baltimore (U. S.), 8 Wall. 377,
387, 19 L. Ed. 463—p. 369.

The Employers’ Liability Cases, 207 U.

S. 463, 52 L. Ed. 297, 28 S. Ct. 141—
pp. 1, 2, 3, 4, 6, 7, 9, 14, 16, 18, 26,
27, 30, 31, 42, 445, 608, 609.

The Harrisburg 119 U. S. 199, 214, 30
L. Ed. 358, 7 S. Ct. 140—p. 232.
The Passaic (D. C.), 190 Fed. 644, 649

—pp. 108, 117, 119.

The Passaic, 121 C. C. A. 466, 204 Fed.
266—p. 235.

The Pawnee (D. C.), 205 Fed. 333—
pp. 6, 15, 16, 17.

Thilmany, Helmke v.

Thomas v. Boston, etc., Railroad, 134
Cc. C. A. 554, 219 Fed. 180—pp. 68,
74, 77.

—— v. Chicago, etc., R. Co. (D. C.),
202 Fed. 766—pp. 190, 192, 217, 225,
253, 272, 274, 275, 282, 364, 365, 371.

Thompson, Alabama, etc., R. Co. v.

 

Ss.

 

Thompson, Canadian Pac. R. Co. v.

—v. Cincinnati, etc, R. Co., 165
Ky. 256, 176 S. W. 1006, 1009—pp.
75, 77, 131, 266, 268.

——v. Minneapolis, etc, R. Co.
(Minn.), 158 N. W. 42—pp. 94, 129,
144, 147, 180, 327.

—— v. Wabash R. Co. (D. C.), 184 Fed.
554—pp. 37, 39, 201, 245.

—— v. Wabash R. Co., 262 Mo. 468,
171 S. W. 364—p. 85.

Thomson v. Columbia, etc., R. Co. (D.
C.), 205 Fed. 203—pp. 72, 279.

Thornbro v. Kansas, etc. R. Co, 91
Kan. 684, 139 Pac. 410, Ann. Cas.
1915D, 314—-pp. 95, 151, 172, 394, 398,
465, 473, 527, 533.

— v. Kansas, etc, R. Co., 92 Kan.
681, 142 Pac. 250—pp. 95, 151, 473.
Thornton v. Seaboard, etc., Railway,
98 S. Ct. 348, 82 S. E. 433—pp. 140,

376, 380.

Tidwell, Alabama, etc., R. Co. wv.

Tilghman, Seaboard Air Line
way v.

—— v. Seaboard, etc., R. Co., 167 N.
C. 163, 83 S. E. 315, 1090—pp. 128,
316, 317, 323, 333, 341, 350.

Tinkman v. Boston, etc., R. Co., 77 N.
H. 111, 88 Atl. 709—pp. 403, 405.

Toledo, etc., R. Co. v. Gordon, 100 C.
C. A. 572, 177 Fed. 152—pp. 543, 544.

—— Lee vw.

—— v, Slavin 236 U. S. 454, 59 L. Ed.
671, 35 S. Ct. 306—pp. 37, 43, 170,
176, 309, 337, 433, 434.

Tonsellito v. New York, etc. R. Co.
(N. J.), 94 Atl. 804—pp. 10, 89, 186.
Trade Mark Cases, 100 U. S. 82, 25

L. Ed. 550—p. 34.

Tralich v. Chicago, etc., R. Co. (D. C.),
217 Fed. 675, 677—pp. 69, 70, 271,
280.

Trinity, etc., R. Co., United States v.

Trout, Chicago, etc., R. Co. vw.

Trowbridge v. Kansas, etc, R. Co.
(Mo. App.), 179 S. W. 777—pp. 63,
64, 88, 128, 142, 151, 158, 160, 169, 310,
311, 529.

Troxell v. Delaware, etc., R. Co., 227
U. S. 434, 443, 57 L. Ed. 586, 33 S.
Ct. 274—pp. 201, 203, 207, 209, 210.

Truesdell v. Chesapeake, etc., R. Co.,
159 Ky. 718, 169 S. W. 471—pp. 69,
134, 170, 177.

Tsmura v. Great Northern R. Co., 58
Wash. 316, 108 Pac. 774—pp. 104, 274,
275, 277, 304, 325.

Tucker, Cincinnati, etc., R. Co. v.

— Philadelphia, etc., R. Co. v.

Tullis v. Lake Erie, etc., R. Co. 175
U. S. 348, 44 L. Ed. 192, 20 S. Ct.
136—pp. 9, 31.

Tully v. Fitchburg R. Co., 134 Mass.
499—p. 196. ° Turner, Missouri, etc.,
R. Co. v.

Rail-
XLVIII

TABLE OF CASES.

 

Tuscarora Valley 'R. Co., Allen v.
Twining v. New Jersey, 211 U. S. 78,
_ 97, 53 L. Ed. 97, 29 S. Ct. 14—p. 32.
Tyndall v. New York Cent., etc, R.
Co., 213 N. Y. 691, 107 N. E. 577—

Pp. 423, 436.

U

Ullrich v. New York, etc., R. Co. (D.
C.), 193 Fed. 768—pp. 46, 248, 249,
251, 253, 254, 271, 281, 335.

Union Bridge Co. v. United States, 204
U. S. 364, 51 L. Ed. 523, 27 S. Ct.
367—p. 443.

Union Pac. Coal Co., Sanbo vw.

Union Pac. R. Co. v. Brady, 88 C. C.
A. 579—161 Fed. 719—pp. 494, 502,
546, 548,

v. Fuller, 122 C. C. A. 359, 204

Fed. 45—pp. 128, 138, 139, 153, 179.

Hadley v.

— Huxoll v.

— Konkouris v.

Richelieu v.

Strother v.

v. Wyler, 158 U. S. 285, 39 L. Ed.
983, 15 S. Ct. 87%—pp. 206, 207, 575.

Union Stock Yards Co., United States v.

—— v. United States, 94 C. C. A. 626,
169 Fed. 404—pp. 469, 470.

United States, American Exp. Co. v.

— Armour Packing Co. v.

— Atchison, etc. R. Co. wv.

— v. Atchison, etc., R. Co., 220 U.
S. 37, 44, 55 L. Ed. 361, 31 S. Ct. 362,
363—pp. 624, 625, 629, 630, 631, 633,
634, 635.

—— v. Atchison, etc., R. Co. (D. C),
150 Fed. 442—pp. 454, 513.

—— wv. Atchison, etc., R. Co., 90 C. C.
A. 327, 163 Fed. 517—pp. 449, 453,
455, 456, 457, 513, 567.

—— v. Atchison, etc. R. Co. (D. CG),
166 Fed. 160—p. 643.

—— v. Atchison, etc, R. Co. (D. C.),
167 Fed. 696—pp. 453, 455, 456, 457,
491, 493, 495, 515, 517, 518, 584.

—— v. Atchison, etc, R. Co. (D. C.),
212 Fed. 1000—pp. 642, 649.

—— v. Atchison, etc, R. Co. (D. C.),
220 Fed. 215, 217—pp. 524, 589.

—— v. Atchison, etc. R. Co. (D. C.),
232 Fed. 196, 197—p. 625.

— Atlantic, etc., R. Co. wv.

—— v. Atlantic, etc, R. Co. (D. ©),
153 Fed. 918—pp. 443, 454, 551, 569,
570, 588.

— v. Atlantic, etc, R. Co. 98 C. C.
A. 110, 173 Fed. 764, 771—p. 651.
— v. Atlantic, ete, R. Co. (D. CG),

182 Fed. 284—pp. 551, 593.

—— uv. Atlantic, etc. R. Co., 128 C. C.
A. 275, 211 Fed. 897—pp. 605, 612,
613, 614, 634, 635.

 

 

United States v. Atlantic, etc, R. Co.
(D. C.), 214 Fed. 498, 499—pp. 442,
471, 472, 484, 491.

—— v. Atlantic, etc., Co. (D. C.), 224
ed. 160, 163—pp. 605, 607, 612, 638,
645, 649.

— v. Baltimore, etc, R. Co. 86 C.

C. A. 223, 159 Fed. 33, 38—p. 598.

— v. Baltimore, etc., R. Co. (D. C.),
170 Fed. 456—pp. 450, 453, 456, 473,
491, 511, 582, 583, 584.

— v. Baltimore, etc., R. Co. (D. C.),
176 Fed. 114—pp. 486, 487, 488, 495,
584. .

—— v. Baltimore, etc., R. Co. (D. C.),
184 Fed. 94—pp. 447, 449, 453, 504,
506, 593.

—— v. Baltimore, etc. R. Co, 107 C.
C. A. 586, 185 Fed. 486—p. 597.

—— uv. Baltimore, etc., R. Co. (D. C.),
226 Fed. 220-—pp. 621, 644, 648, 649.

Belt R. Co. v.

—— v. Boston, etc, R. Co. (D. C.),
168 Fed. 148—pp. 483, 504, 505, 551,
584, 585, 595.

— Central Vermont R. Co. v.

—— v. Central, etc, R. Co. (D. C),
157 Fed. 893—pp. 447, 453, 464, 491,
492, 493, 495, 496, 581, 583, 585.

—Chesapeake, etc., R. Co. wv.

—— wv. Chesapeake, etc., R. Co., 130 C.
C. A. 262, 213 Fed. 748—pp. 466, 521,
523, 524.

—— Chicago, etc., R. Co. wv.

—— v. Chicago, etc., R. Co., 237 U. S.
410, 59 L. Ed. 1023, 35 S. Ct. 634—-pp.
484, 485.

—— v. Chicago, etc, R. Co. (D. C.),
143 Fed. 353—pp. 467, 479, 596.

—— v. Chicago, etc, R. Co. (D. C.),.
149 Fed. 486—pp. 442, 447, 448, 452,
454, 470, 478, 479, 497, 518.

—— v. Chicago, etc, R. Co. (D. C.),
162 Fed. 775, 778—pp. 442, 453, 455,
456, 464, 472, 479, 483, 511, 512, 515,
517, 518, 551, 581, 582, 583, 584, 596.

v. Chicago, etc., R. Co. (D. C.), 173

Fed. 684—pp. 442, 447, 448, 563, 583.

v. Chicago, etc, R. Co. (D. CG),
195 Fed. 783—pp. 606, 622, 623.

—— v. Chicago, ete. R. Co. (D. C.),
197 Fed. 624—pp. 605, 614, 619, 624,
625.

—— v. Chicago, etc. R. Co. (D. C.),
212 Fed. 574—p. 644.

—— v. Chicago, etc., R. Co. (D. C.),
218 Fed. 701—pp. 608, 620.

(D. C.),

(D. C.),

631.

C.),

—— v. Chicago, etc., R. Co.
—— v. Chicago, etc., R. Co. (D.
649.

 

 

219 Fed. 342—pp. 625, 644.
—— v. Chicago, etc. ‘R. Co.

219 Fed. 1011—pp. 631, 632, 633,
—— v. Clark, 96 U. S. 37, 24 L. Ed

 

219 Fed. 632—pp. 613, 620,
696—p. 345.
TABLE OF CASES.

XLIX

 

United States v. Colorado Mid. R. Co.,
121 C. C. A. 194, 202 Fed. 732—pp. 518,
522.

v. Colorado, etc., R. Co., 85 C. C.
A. 27, 157 Fed. 321, 15 L. R. A., N.
S., 167, 13 Am. & Eng. Ann. Cas. 893
—pp. 82, 99, 444, 449, 451, 464, 467,
468, 469.

—— v. DeGoer, (D. C.), 38 Fed. 80—
p. 191.

—— Delano v.

—— v. Denver, etc., R. Co., 90 C. C.
A. 329, 163 Fed. 519—pp. 453, 455,
456, 491, 492, 566, 567, 569.

—— v. Denver, etc., Co. (D. C.),
197 Fed. 629—pp. 622, 623, 624.

v. Denver, etc, R. Co., 136 C. C.

A. 275, 220 Fed. 293, 295—pp. 605, 638,
639.

—— Elgin, etc., R. Co. v.

—— Erie R. Co. v.

—— v. Erie R. Co., 237 U. S. 402, 59
L. Ed. 1019, 35 S. Ct. 621—pp. 483,
484, 485, 491, 523, 525, 551.

— v. Erie R. Co. (D. C.), 166 Fed.
352—pp. 453, 457, 464, 466, 473, 474.
—— v. Erie R. Co., 129 C. C. A. 30%,

212 Fed. 853—p. 483.

— v. Florida, etc., R. Co. 137 C. C.
A. 571, 222 Fed. 33—pp. 631, 632.

—— Galveston, etc., R. Co. wv.

—— v. Geddes, 65 C. C. A. 320, 131
Fed. 452—pp. 451, 468, 469.

—— Great Northern R. Co. w.

—— v. Great Northern R. Co. (D. C.),
145 Fed. 438—p. 465.

_ y, Great Northern R. Co. (D. C.),
150 Fed. 229—pp. 453, 454, 500, 501,
515.

v. Great Northern R. Co. (D. C.),
206 Fed. 838—pp. 625, 626, 628.

— v,. Great Northern R. Co. (C. C.
A.), 220 Fed. 630, 633—pp. 605, 612,
613, 642, 646, 649, 650.

—— v, Great Northern R. Co. (C. C.
A.), 229 Fed. 927—pp. 447, 487, 551.
— 'v. Grand Rapids, etc., R. Co., 140
Cc. C. A. 177, 224 Fed. 667—pp. 606,

611, 613, 634, 635, 636.

——  v. Grand Trunk R. Co. (D. C.),
203 Fed. 775—pp. 482, 484.

—— Hepner vw.

— Hoke v.

——  y, Houston, etc. R. Co., 125 C.

C. A. 481, 205 Fed. 344—pp. 633, 649,
650.
—— Illinois Cent. R. Co. (D. C.), 156
Fed. 182—pp. 457, 475, 515, 551.
—— vy, Illnois Cent. R. Co. (D. C.),
166 Fed. 997—pp. 465, 473, 474.
—— v, Illinois Cent. R. Co. 95 C. C.
A. 628, 170 Fed. 542—pp. 456, 457, 495,
513, 517, 518, 551, 553, 583, 584, 598,
604.

Fed Act—d

 

 

 

 

United States v. Illinois Cent. R. Co.,
101 C. C. A. 15, 177 Fed. 801—pp. 448,
449, 499, 500, 503, 569.

— v. Illinois Cent. R. Co. (D. C.),
180 Fed. 630—pp. 608, 623.

—— yv. Indiana Harbor R. Co. (D. C.),
157 Fed. 565—pp. 456, 563.

—— v. International etc., R. Co., 98
C. C. A. 392, 174 Fed. 638—pp. 464,
465, 466, 473.

—— vy, Kansas’ City, etc, R. Co. (D.
C.), 189 Fed. 471—pp. 606, 607, 608,
613, 623, 639, 643, 644, 649.

—— v. Kansas City, etc, R. Co., 121
C. C. A. 136, 202 Fed. 828—pp. 605,
607, 613, 638, 642, 643, 644, 646, 648,
649, 650, 652.

—— v. Lacher, 134 U. S. 624, 33 L.
Ed. 1080, 10 S. Ct. 625—p. 448.

—— Lake Superior, etc., R. Co. v.

—— Lees v.

—— v. Lehigh Valley R. Co. (D. C.),
162 Fed. 410, 412—pp. 495, 513, 514,
584.

— v. Lehigh Valley R. Co., 135 C.
C. A. 282, 219 Fed. 532—pp. 642, 643.

—— Louisville, etc., R. Co. v.

United States v.’ Louisville, etc, R.
‘Co. (D. C.), 156 Fed. 193—pp. 514,
515, 517, 583.

—— v. Louisville, etc., R. Co. (D. C.),
162 Fed. 185—pp. 481, 497.

—— v. Louisville, etc., R. Co., 93 C. C.
A. 58, 167 Fed. 306—pp. 598.

— Missouri Pac. R. Co. vw.

——  v. Missouri Pac. R. Co., 130 C.
C. A. 5, 213 Fed. 169—pp. 605, 607,
612, 613, 638, 640, 641, 642, 649, 650.

—— v. Missouri, etc. R. Co. (D. C.),
206 Fed. 847—pp. 625, 626, 627.

—— v. Missouri, etc., R. Co. (D.
208 Fed. 95%7—pp. 605, 635.

——  v. Montpelier, etc., Railroad
C.), 175 Fed. 874—-pp. 495, 499,
584.

— Mosby v.

— v. Nevada County, etc, R.
(D. C.), 167 Fed. 695—pp. 495,
584.

— v. New York Cent., etc., R. Co.
(D..C.), 205 Fed. 428—p. 483.

v. New York Cent., etc. R. Co.,
134 C. C. A. 369, 218 Fed. 611—pp.
637, 643, 644, 651.

— New York, etc., R. Co. wv.

—— v. New York, etc., R. Co. (D. C.),
216 Fed. 702—pp. 605, 613, 625, 633,
639, 641.

— Norfolk, etc., R. Co. v.

—  v. Norfolk, etc, R. Co. (D. C.),
184 Fed. 99—pp. 504, 505, 506, 593.

—Northern Pac. R. Co. v.

—— v. Northern Pac. R. Co. (D. C.),
213 Fed. 539—pp. 613, 624, 625, 630.

C.),
(D.
583,

Co.
496,

 
L TABLE OF CASES.

 

United States v. Northern Pac. R. Co.,
131 C. C. A. 372, 215 Fed. 64—p. 641.

—v. Northern Pac. Terminal Co.
(D. C.), 144 Fed. 861—pp. 469, 475.

—— v. Oregon Short Line R. Co. (D.
C.), 228 Fed. 56i—pp. 606, 607, 625,
636, 649.

—— Oregon-Washington R., etc., Co. v.

v. Oregon-Washington R., etc.,
Co. (D. C.), 213 Fed. 688—pp. 606,
607, 636.

—— v. Oregon-Washington R.,
Co. (D. C.), 218 Fed. 925—pp.
607, 636.

—— v. Oregon, etc, R. Co. (D.
180 Fed. 483—pp. 552, 565, 567.

—— Pacific Coast R. Co. v.

—— v. Pennsylvania R. Co. (D.
162 Fed. 408—pp. 513, 583, 584.

—— v. Pere Marquette R. Co. (D. C.),
211 Fed. 220, 223—pp. 446, 449, 453,
456, 484, 485.

— Philadelphia, etc., R. Co. wv.

— v. Philadelphia, etc, R. Co. (D.
C.), 160 Fed. 696—pp. 453, 455, -491,
492, 513, 514, 551, 583. -

— v. Philadelphia, etc, R. Co. (D.
C.), 162 Fed. 403—p. 513.

—— v. Philadelphia, etc. R. Co. (D.
C.), 162 Fed. 405—pp. 513, 514, 584.
— wv. Philadelphia, etc, R. Co. (D.
C.), 223 Fed. 215—pp. 442, 443, 453,

489, 491, 492, 493, 495.

— v. Pittsburgh, etc. R. Co.
C.), 143 Fed. 360—p. 471.

v. Ramsey, 116 C. C. A. 568, 197
Fed. 144, 42 L. R. A., N. S., 1031—pp.
614, 619, 650, 651.

—— v. Riley (D. C.), 104 Fed. 275—>p.
191.

—— v. Rio Grande, etc.; R. Co., 98 C.
C. A, 293, 174 Fed. 399—pp. 517, 581.

—— Rogers v.

—— St. Joseph, etc., R. Co. v.

—— St. Louis, etc. R. Co. v.

—— v. St. Louis, etc., R: Co. (D. C.),
154 Fed. 516—pp. 442, 471, 475, 494,
517, 518.

v. St. Louis, etc., R. Co., 106 C.C. A.
230, 184 Fed. 28—pp. 447, 448, 465,
551, 553, 566, 594.

—— San Pedro, etc. R. Co. v.

—— v. Smith, 94 U. S. 214, 218, 24 L,.
Ed. 115—p. 369.

Southern Pac. Co. v.

—— v. Southern Pac. Co. (D. C.), 154
Fed. 897—pp. 442, 454, 455, 515, 516,
517, 518.

—— v. Southern Pac. Co. (D. C.), 157
Fed. 459--p. 644.

 

Ries
606,
G),

C.),

(D.

 

 

 

 

 

United States v. Southern Pac. Co. (D.
C.), 167 Fed. 699—pp. 453, 457, 464,
478, 479, 493, 494, 495, 583, 584.

—  v. Southern Pac. Co., 94 C. C. A.
629, 169 Fed. 407—pp. 453, 455, 518.

——  v. Southern Pac. Co., 126 C. C.
A. 384, 209 Fed. 562, 567—pp. 637,
638.

—— v. Southern Pac. Co., 136 C. C.
A. 351, 220 Fed. 745—pp. 642, 650.

v. Southern R.»Co. (D. C.), 135

Fed. 122, 127—pp. 447, 454, 455, 469,

495, 513, 514, 551, 563, 564.

v. Southern R. Co. (D. C.), 164

Fed. 347—pp. 443, 459, 460, 465.

Southern R. Co, (D. C.), 167
Fed. 699—pp. 515, 517, 518.

—— v. Southern R. Co. (D. C.), 170
Fed. 1014—pp. 442, 447, 453, 455, 471,
475, 489, 491, 493, 500, 505, 514, 551,
584. :

— Spokane, etc., R. Co. v.

—— v. Trinity, etc, R. Co. 128 C. C.
A. 120, 211 Fed. 448—pp. 453, 454,
513, 523, 524, 589.

—— Union Bridge Co. v.

—— Union Stockyards Co. v.

—— v. Union Stock Yards Co. (D.
C.), 161 Fed. 919—pp. 467, 470.

v. United States Fidelity, etc., Co.,
236 U. S. 512, 59 L. Ed. 696, 35 S.
Ct. 298—p. 369.

—— Virginia R. Co. v.

—— Wabash R. Co. v.

—— v._ Western, etc, R. Co. (D. C.),
184 Fed. 336—pp. 472, 473, 474, 567.

v. Wheeling, etc, R. Co. (D. C.),

167 Fed. 198—pp. 445, 453, 455, 473.

476, 514, 567.

v. Winn, 3 Sumn. 209, Fed. Cas

No. 16, 740—p. 448.

v. Yazoo, etc, R. Co. (D. CG),
203 Fed. 159, 161—pp. 605, 621.

United States Fidelity, etc.
United States v.

Vv

Van Brimmer v. Texas, etc., R. Co.
(C. C.), 190 Fed. 394—pp. 19, 95, 247,
248.

Van Buskirk, Erie R. Co. v.

Vandalia R. Co., Hall v.

—— v. Holland (Ind.), 108 N. E. 580—
PP. 98, 99, 355, 356.

—— v. Stringer, 182 Ind. 676, 106 N.
E. 865, 107 N. E. 673—pp. 37, 46, 271,
272, 351,

Vandiver, Gainesville Mid. Railway. v.

Vann, St. Louis, etc, R. Co. v,

Vanordstrand v. Northern Pac. R. Co.,

86 Wash. 665, 151 Pac. 89—pp. 119,
148, 149.

 

 

=e

 

 

 

Co.,
TABLE OF CASES.

LI

 

Vaughan v. St. Louis, etc., R. Co., 177
Mo. App. 155, 164 S. W. 144—pp. 33,
38, 93, 129, 202, 205, 206, 208, 213,
215, 216, 299, 430.

— Southern Pac. Co. v.

Vaught v. Virginia, etc, Railroad
(Tenn.), 179 S. W. 314—p. 231.

Vessell, Southern R. Co. v.

Vickery v. New London, etc., R. Co.,
87 Conn. 634, 89 Atl. 277—pp. 37, 41,
43, 136, 179, 206, 266, 281, 287, 291,
300, 306, 307.

Vicksburg, etc., R. Co. v. Putnam, 118
U. S. 545, 30 L. Ed. 257, 7 S. Ct. 1—
p. 366.

Virginian R. Co. v. Andrews (Va.), 87
S. E. 577, 579—pp. 142, 158, 331, 343.

Culp v.

Easter v.

Hull v.

v. Linkous (C. C. A.), 230 Fed.

88, 91—pp. 144, 146, 153.

v. United States, 139 C. C. A.
278, 223 Fed. 748—pp. 449, 453, 487,
488.

Virginia, etc., Railroad, Vaught v.

Vizvari, New York, etc., R. Co. v.

Voelker, Chicago, etc. R. Co. v.

—— v. Chicago, etc, R. Co. (C. C.),
116 Fed. 867, 873—pp. 64, 273, 277,
457, 475, 495, 532, 570, 592.

Vreeland, Michigan Cent. R. Co. v.

W

Wabash R. Co. v. Bhymer, 214 Il. 579,
73 N. E. 879—p. 574.

—— Hardwick vw.

—— v. Hayes, 234 U. S. 86, 58 L. Ed.
1226, 34 S. Ct. 729—pp. 39, 41, 238,
273, 288, 335, 339, 435.

—— Moliter v.

—— State v.

—— Thompson z. :

v. United States, 93 C. C. A. 393,

168 Fed. i—pp. 442, 443, 445, 448,

449, 465, 466, 467, 473, 475, 491, 493,

494, 579, 587, 597.

wv. United States, 97 C. C. A. 284,
172 Fed. 864—pp. 453, 456, 492, 493,
509, 514.

Wachita, etc, R. Co. wv. Puckett
(Okla.), 157 Pac. 112—pp. 18, 20.

Wagner, Chicago, etc. R. Co. v.

v. Chicago, etc, R. Co., 265 III.
245, 106 N. E. 809, Ann. Cas. 1916A,
778—pp. 20, 37, 54, 57, 143, 310.

—— San Antonio, etc., R. Co. wv.

Waina v. Pennsylvania Co. (Pa.), 96
Atl. 461—pp. 69, 389, 390.

Walker, Chesapeake, etc., R. Co. wv.

v. Collins, 167 U. S. 57, 42 L. Ed.
76, 17 S. Ct. 738—p. 557.

— Louisville, etc., R. Co. v.

I ||

 

 

 

 

 

Walsh v. Lake Shore, etc., R. Co., 185
Mich. 177, 151 N. W. 754—pp. 129,
390.

——v. New York, etc, R. Co. (C.
C.), 173 Fed. 494—pp. 2, 26, 37, 190,
191, 195, 364.

Walters, Chicago, etc., R. Co. v.

Walton v. Southern R. Co. (C. C.),
179 Fed. 175, 176—pp. 274, 276, 277,
278.

Ward, Cornell Co. v.

Warren v. Stoddart, 105 U. S. 224,
220, 26 L. Ed. 1117p. 369.

Washington, Northern Pac. R. Co. v.

Washington R. Co. v. Downey, 40
App. D. C. 147—pp. 6, 15, 27, 28.

Washington Terminal Co., McNamara

v.

Washington, etc., R. Co. v. Downey,
236 U. S. 190, 35 S. Ct. 406—pp. 6,
27, 429.

— v. Harmon, 147 U. S. 571, 37 L.
Ed. 284, 13 S. Ct. 557—p. 368.

Watson, Morrison v.

Poor wv.

— v. St. Louis, etc., R. Co. (C. C.),
169 Fed. 942—pp. 1, 2, 3, 5, 15, 20,
28, 30, 31, 32, 52.

Watts v. Ohio Valley Electric R. Co.
CW. Va.), 88 S. E. 659—pp. 15, 18,
66, 86.

Wells Fargo & Co., Taylor v.

Welsh, Erie R. Co. v.

Wene, Louisville, etc, R. Co. uv

West, Missouri, etc., R. Co. v.

Western Maryland R. Co., Hartman v.

Western Union Tel. Co. v. Commer-
cial. Milling Co., 218 U. S. 406, 54
L. Ed. 1088, 31 S. Ct. 59, 36 L. R.
A., N. S., 220, 21 Am. & Eng. Ann.
Cas. 815—p. 36.

Western, etc., R. Co., United States v.

West Jersey Trust Co. wv, Philadel-
phia, etc., R. Co. (N. J.), 95 Atl. 753
—p. 48.

Whalley v. Philadelphia, etc, R. Co.,
248 Penn. 298, 93 Atl. 1016—p. 483.

Wheeler, Michigan Headlining, etc.,
Co. v. ;

—— uv. Oak Harbor Headlining, etc.,
Co., 61 C. C. A. 250, 126 Fed. 348—
p. 541.

Wheeling Terminal R. Co. v. Russell,
126 C. C. A. 519, 209 Fed. 795—pp.
472, 473, 495, 587, 592, 597.

Wheeling, etc., R. Co., United States

v.

Whitacre, Baltimore, etc., R. Co. uw.

White, Central Vermont R. Co. v.

— v. Central R. Co., 87 Vt. 330, 89
Atl 618—pp. 36, 121, 124, 128, 133,
138, 154, 287, 306, 309, 315, 316, 318,
321, 326, 338, 357, 374, 388, 411.

—— v. Missouri Pac. R. Co. (Mo.),
178 S. W. 83—pp. 236, 238, 320.
LII

TABLE OF CASES.

 

White, Texas, etc., R. Co. v.

Whitney, Atlantic Coast Line R. Co. v.

Atlantic, etc., R. Co. v.

Whittaker v. Illinois, etc., R. Co. (C.
C.), 176 Fed. 130—pp. 9, 37, 261, 271,
274, 275.

Wichita Falls, etc., R. Co. v. Puckett
(Okla.), 157 Pac. 112—pp. 269, 324,
348.

Wicker v. Hoppock (U. S.), 6 Wall.
94, 18 L. Ed. 752—p. 369.

Wiles, Great Northern R. Co. v.

 

 

v. Great Northern R. Co., 125
Minn. 348, 147 N. W..427—p. 153.
Wilkes, St. Louis, etc., R. Co. wv.
Willett v. Illinois Cent. R. Co., 122

Minn. 513, 142 N. W. 883—pp. 452,
495, 499.

Willever v. Delaware, etc., R. Co. (N.
J.), 94 Atl 595—pp. 69, 127.

Wilson, Cincinnati, etc., R. Co. wv.

v. Grand Trunk R. Co. (N. H.),
97 Atl. 981—pp. 117, 159, 315.

Winfield v. Erie R. Co. (N. J.), 96
Atl. 394—pp. 48, 50.

v. New York, etc., R. Co. (App.
Div.), 153 N. Y¥. S. 499—pp. 48, 50.

— v. New York, etc, R. Co. (N.
Y.), 110 N. E. 614-p. 48.

Winfree v. Northern Pac. R. Co., 227
U. S. 296, 301, 57 L. Ed. 518, 33 S.
Ct. 273—pp. 35, 204, 207, 230, 251,
338.

v. Northern Pac. R. Co., 97 C.
C. A. 392, 173 Fed. 65, 44 L. R. A,,
N. S. 841—p. 230.

Winkler, Louisville, etc., R. Co. v.

Philadelphia, etc., R. Co. v.

——v. Philadelphia, etc, R. Co. 4
Penn. (Del.) 80, 53 Atl. 90—pp. 474,
490, 495, 527, 531, 538, 586, 588.

Winn, United States v.

Winters v. Minneapolis, etc, R. Co.,
126 Minn. 260, 148 N. W. 106—pp.
78, 140, 240, 241, 243.

Wisconsin Cent. R. Co., Bucher vw.

Wisner, Ex parte.

 

 

 

 

 

Woodruff v. Yazoo, etc., R. Co., 127
Cc. C. A. 411, 210 Fed. 849—pp. 133,
179, 186, 187, 193.

—— v. Yazoo, etc, R. Co. 137 C. C.
A. 567, 222 Fed. 29—pp. 133, 179,
186, 187, 424.

Woodworth, Chesbrough v.

Worley v. Southern R. Co., 169 N. C.
105, 85 S. E. 397—p. 483.

Wright, Chicago, etc., R. Co. w.

v. Chicago, etc., R. Co., 94 Neb.
317, 143 N. W. 220—pp. 38, 86.

—— v. Chicago, etc. R. Co., 96 Neb.
87, 146 N. W. 1024—p. 86.

—— Yazoo, etc., R. Co. v.

— wv. Yazoo, etc., R. Co. (D. C.), 197
Fed. 94, 96—pp. 123, 153, 171, 177,
179, 182.

Wulf, Missouri, etc., R. Co. v.

Wyler, Union soc Co. v.

 

Yazoo, etc., R. Co., United States v.

Woodruff v.

Wright v.

Yazoo, etc., R. Co. v. Wright, 235 U.
S. 376, 59 L. Ed. 277, 35 S. Ct. 130
—pp. 169, 427.

—— v. Wright, 125 C. C. A. 25, 207
Fed. 281—pp. 123, 181, 182, 189, 354.

Yerkes, Texas, etc., R. Co. v.

York, St. Louis, etc., R. Co. v.

v. St. Louis, etc., R. Co., 86 Ark.
244, 110 S. W. 803—pp. 532, 534, 536,
541, 543.

Young, Central R. Co. v.

Yurkonis, Delaware, etc., R. Co. v.

 

 

 

Zachary, North Carolina R. Co. v.

v. North Carolina R. Co., 156 N.
C. 496, 72 S. E. 858—p. 17.

Zavitovsky v. Chicago, etc., R. Co.
161 Wis. 461, 154 N. W. 974—pp. 92,
306, 325.

Zikos v. Oregon, etc., Nav. Co. (C.
C.), 179 Fed. 893—pp. 1, 2, 3, 5,
6, 26, 28, 29, 30, 31, 34, 37, 51, 68, 69,
70, 146, 147, 233, 236, 237, 238, 244.

 
The Federal Employers’ Liability Act

CHAPTER I.

a

PowWER OF CONGRESS*TO REGULATE RELATION OF MASTER AND SERVANT.

1. General Power of Congress, § 1.

2. No Power over Carriers and Employees While Not Engaged in Interstate
Commerce, § 2.

3. Where Injury to Interstate Employee Results from Negligence of Employee
or Agency Not Engaged in Interstate Commerce, § 3.

4. In the District of Columbia, Territories, and Places under Exclusive Federal
Control, § 4.

5. Power Extends to All Carriers, Both on Land and Water, § 5.

§ 1. General Power of Congress.—In the light of the decisions of
recent years, there no longer remains any shadow of doubt that congress,
in the exertion of its power over interstate commerce, may regulate the re-
lations of common carriers by railroad, and their employees while both are
engaged in such commerce, subject always to the limitations prescribed in
the constitution, and to the qualification that the particulars in which those
relations are regulated must have some real or substantial connection with
the interstate commerce in which the carriers and their employees are en-
gaged.1

&

To the contention that any regulation of congress of the relation of mas-
ter and servant was unauthorized and-*therefore unconstitutional, and
though the act was so held on other grounds, in First Employers’ Liability
Cases, 207 U. S. 463, 52 L. Ed. 297, 28 S. Ct. 141, 144, the court said:

“As it is patent that the act does regulate the relation of master and serv-
ant in the cases to which it applies, it must follow that the act is beyond
the authority of congress if the proposition just stated be well founded.
But we may not test the power of congress to regulate commerce, solely
by abstractly considering the particular subject to which a regulation
relates, irrespective of whether the regulation in question is one of in-
terstate commerce. On the contrary, the test of power is not merely
the matter regulated, but whether the regulation is directly one of inter-
state commerce, or is embraced within the grant conferred on congress

1. General power of congress to reg-
ulate relation of master and servant.—
Michigan Cent. R. Co. v. Vreeland, 227
U. S. 59, 33 S. Ct. 192, Ann. Cas. 1914C,
176; The Employers’ Liability Cases,
207 U. S. 463, 52 L. Ed. 297, 28 S. Ct.
141; Second Employers’ Liability
Cases, 223 U. S. 1, 56 L. Ed. 327, 32 S.
Ct. 169, reversing ’g2 Conn. 373, 73 Atl.

762, and affirming 173 Fed. 494; Zikos
v. Oregon, etc., Nav. Co. (C. C.), 179
Fed. 893; Watson v. St. Louis, etc., R.
Co. (C. cS, 169 Fed. 942; Spain v. St.
Louis, etc. R. Co. (C. Cy 151 Fed.
522; Kelley v. Great Northern R. Co.
(C. C.), 152 Fed. 211; State v. Chicago,
etc., R. Co., 136 Wis. 407, 117 N. W.
686, 19 L. R. A., N. S., 326.
§ 1 FEDERAL EMPLOYERS LIABILITY ACT. 2
to use all lawful means necessary and appropriate to the execution of
the power to regulate commerce. We think the unsoundness of the con-
tention that, because the act regulates the relation of master and serv-
ant, it is unconstitutional, because, under no circumstances, and to no
extent, can the regulation of such subject be within the grant of author-
ity to regulate commerce, is demonstrable. We say this because we fail
to perceive any just reason for holding that congress is without power
to regulate the relation of master and servant, to the extent that regu-
lations adopted by congress on that subject are solely confined to inter-
state commerce, and therefore are within the grant to regulate that com-
merce, or within the authority given to use all means appropriate to the
exercise of the powers conferred.”
‘ | ramvane cc TERS OATS aaa Bae Oa
It is equally well settled that the duties of common carriers with respect
to the safety of their employees, while both are engaged in commerce among
the states, and the liability of the former for injuries sustained by the lat-
ter, while both are so engaged, have a real and substantial relation to such
commerce, and are, therefore, within the range of this power.? In other
words, the employees of persons and corporations engaged in interstate com-
merce are instrumentalities of such commerce,’ and while as a general rule
the police power belongs to the states, congress, in the exercise of its power
to regulate such commerce, may enact restrictive or benevolent regulations
for the benefit of those employees, which regulations are, in their essential

nature, police regulations.4

It is no valid objection to such regulations that they change or modify
long-settled principles of the common law. There is no vested right in any

2. Same—Duty with respect to safety
—Liability for injuries—United States.
—The Employers’ Liability Cases, 207
U. S. 463, 52 L. Ed. 297, 28 S. Ct. 141;
Zikos v. Oregon, etc. Nav. Co. (C.
C.), 179 Fed. 893; Watson v. St. Louis,
etc, R. Co. (C. C.), 169 Fed. 942;
Michigan Cent. R. Co. v. Vreeland, 227
U. 5. 59, 33 S. Ct. 192; Second Employ-
ers’ Liability Cases, 223 U. S. 1, 56 L.
Ed. 327, 32 S. Ct. 169; Spain vu. St.
Louis, etc., R. Co. (C. C.), 151. Fed.
522; Kelley v. Great Northern R. Co.
(C. C.), 152 Fed. 211; Plummer v.
Northern Pac. R. Co. (C. C.), 152 Fed.
206; St. Louis, etc., R. Co. v. Conley
(C. C.), 187 Fed. 949; Snead v. Cen-
tral, etc, R. Co. (C. C.), 151 Fed. 608;
Walsh v. New York, etc., R. Co. (C.
C.), 173 Fed. 494.

Minnesota—Owens wv. Chicago, etc.,
R. Co., 113 Minn. 49, 128 N. W. 1011.

North Carolina—Lloyd v. North Caro-
lina R. Co., 162 N. C. 485, 78 S. E. 489.

Wisconsin—State v. Chicago, etc., R.
Co., 136 Wis. 407, 117 N. W. 686, 19
L. R. A. N. S., 326.

Contra.—Hoxie v. New York, etc., R.
Co., 82 Conn. 352, 73 Atl. 754, 17 Am.
& Eng. Ann. Cas. 324, reversed in Sec-

ond Employers’ Liability Cases, 223
U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169;
Howard v. Illinois Cent. R. Co. (C.
C.), 148 Fed. 997, reversed in The Em-
ployers’ Liability Cases, 207 U. S. 463,
52 L. Ed. 297, 28 S. Ct. 141; Brooks w.
Southern Pac. R. Co. (C. C.), 148 Fed.
986.

3. Employees as instrumentalities of
commerce.—Snead v. Central, etc, R.
Co. (C. C.), 151 Fed. 608.

The term interstate commerce in-
cludes instrumentalities and agencies by
which such commerce is conducted,
and the power of congress extends to
the regulation of these instrumentali-
ties, including the right to legislate for
the welfare of persons operating the
same. Lloyd v. North Carolina R. Co.,
162 N. C. 485, 78 S. E. 489.

4, Nature of regulations enacted by
congress.—Kelley v. Great Northern
R. Co. (C. C.), 152 Fed. 211; Snead v.
Central, etc, R. Co. (C. C.), 151 Fed.
608; The Employers’ Liability Cases,
207 U. S. 463, 52 L. Ed. 297, 28 S. Ct.
141; Spain v. St. Louis, etc., R. Co. (C.
C.), 151 Fed. 522; Hoke v. United
States, 227 U. S. 308, 57 L. Ed. 523, 33
S. Ct. 281.
§§ 1-2

rule of the common law, except in so far as our legislatures, state and na-
tional, may be bound down by constitutional limitations; there is no peculiar
sanctity attaching to those principles of the common-law system which
hold that a servant must be held to have assumed the risks ordinarily in-
cident to his employment, including the risk of injuries resulting from the
negligence of his fellow servants, and that he is not entitled to recover for
any injury to which his own negligence was a contributing cause. On the
other hand, the trend of present day enlightened opinion is away from such
principles as being unduly harsh and oppressive to the servant: class, and
opposed to the better reason; and certain it is that congress; keeping within
the sphere of its delegated powers, and subject to the constitutional re-
straints with which it is hedged about, may modify or abolish them and
substitute new rules, evincing a new policy, as to it may seem good.5

And it is elementary that in passing upon the validity of such legislation
the courts are limited, as they are in all cases, to the sole question of power.
The wisdom, policy or expediency of the act, whether it is the best means
that might have been chosen for the accomplishment of the desired end, or
whether its enforcement will not be productive of more hardship and give
rise to a train of evils, real or imaginary, greater than those which it was
designed to correct, are considerations which address themselves solely to
the legislative branch of the government, and its decision thereon, as em-
bodied in the completed act, is not subject to judicial review.®

3 POWER TO REGULATE RELATION OF MASTER AND SERVANT.

§ 2. No Power over Carriers and Employees While Not Engaged
in Interstate Commerce.—The plenary power conferred upon congress
by art. 1, § 8, of the federal constitution is the power to regulate that com-
merce which comes within the description of interstate and foreign, and
among the Indian tribes. There is no grant of power with respect to that
commerce which is wholly internal or intrastate; and in addition to the
want of any express grant of power with respect to such commerce, the
necessary implication, arising from the dual nature of our political system,
and which operates to confine the activities of both the state and national
governments to their respective spheres of action, forbids that congress
should undertake to regulate that commerce within the states which is

wholly domestic or intrastate.”

5. Modification of common-law rules.
—Watson wv. St. Louis, etc., R. Co. (C.
C.), 169 Fed. 942; The Employers’ Lia-
bility Cases, 207 U. S. 463, 52 L. Ed.
297, 28 S. Ct. 141; Hoxie v. New York,
etc., R. Co., 82 Conn. 352, 73 Atl. 754,
17 Am. & Eng. Ann. Cas. 324, reversed
on other points in Second Employers’
Liability Cases, 223 U. S. 1, 56 L. Ed.
327, 32 S. Ct. 169.

6. Judicial review—Wisdom, policy,
or expediency—Courts limited to ques-
tion of power.—The Employers’ Liabil-

ity Cases, 207 U. S. 463, 52 L. Ed. 297,
28 S. Ct. 141; Zikos v. Oregon, etc.,
Nav. Co. (C. Ch, 179 Fed. 893.

7% No power over carriers or em-
ployees while not engaged in interstate
commerce.—FE] Paso, ‘etc, R. Co. w.
Gutierrez, 215 U. S. 87, 54 L. Ed. 106,
30 S. Ct. 21; The Employers’ Liability
Cases, 207 U.S. 463, 52 L. Ed. 297, 28
S. Ct. 141; Zikos v. ‘Oregon, etc., Nav.
Co. (C. C.), 179 Fed. 893; Watson v.
St. Louis, etc., R. Co. (C. GQ), 169 Fed.
942; Spain v. St. Louis, etc., R. Co. (C.
§ 2 FEDERAL EMPLOYERS’ LIABILITY ACT. 4

This principle, of course, is perfectly plain and elementary. The difficulty
arises from the fact that the vast proportion of the transportation business
of the country is carried on by corporations engaged in commerce of both
descriptions, the same train and oftentimes the same car carrying goods or
passengers, some of which are being moved in interstate commerce, while
others are being transported in that commerce which is wholly intrastate.
The power of congress with respect to so much of the business of any par-
ticular carrier as properly comes under the head of interstate is not de-
feated, however, by reason of the fact that such carrier is also engaged in
commerce which is purely intrastate. The regulation of intrastate com-
merce, if it can be so called, which may result in such a case, is incidental and
due to the manner or method in which the carrier conducts its business, and
to the fact that it thus commingles its interstate and intrastate business.®

On the other hand, in view of the recent authoritative utterances of the
Federal Supreme Court, it may be regarded as conclusively settled that an
employer engaged in interstate transportation does not bring his entire
business, including that which is intrastate as well as that which is inter-
state, within the legislative power of congress; nor does the interstate com-
merce clause of the federal constitution authorize congress to extend the
provisions of an employers’ liability act to those employees engaged in com-
merce which is wholly intrastate, except in so far as their negligence or mis-
feasance may affect that commerce which may be denominated interstate.°
Therefore an act addressed to all common carriers engaged in interstate
commerce, and imposing a liability upon them in favor of any of their em-
ployees, without qualification or restriction as to the business in which the
carriers or their employees may be engaged at the time of the injury, of
necessity includes subjects wholly outside of the power of congress to
regulate commerce, and is unconstitutional and void.1®° And where the
provisions of such an act applicable to both interstate and intrastate em-
ployees are so interblended as to be inseparable, the statute must fail as a
whole.?!

C.), 151 Fed. 522; Second Employers’

Liability Cases, 223 U. S. 1, 56 L. Ed.
327, 32 S. Ct. 169; Pedersen v. Dela-
ware, etc., Railroad (C. C.), 184 Fed.
737, 738; Hoxie v. New York, etc., R.
Co., 82 Conn. 352, 73 Atl 754, 17 Am.
& Eng. Ann. Cas. 324, followed in Mon-
dou v. New York, etc., R. Co., 82 Conn.
373, 73 Atl. 762.

8. Carriers engaged in both interstate
and intrastate business.—Kelley v. Great
Northern R. Co. (C. C.), 152 Fed. 211;
Central R. Co. v. Colasurdo, 113 C. C.
A. 379, 192 Fed. 901, affirming 180 Fed.
832.

9. By engaging in interstate com-
merce, intrastate business not brought
within legislative powers of congress.
—The Employers’ Liability Cases, 207

U. S. 463, 52 L. Ed. 297, 28 S. Ct. 141;
El Paso, etc. R. Co. v. Gutierrez, 215
U. S. 87, 54 L. Ed. 106, 30 S. Ct. 21;
Second Employers’ Liability Cases, 223
U. S. 1, 56 L. Ed. 327, 32 S. Ct. 169;
Pedersen v. Delaware, etc., Railroad (C.
C.), 184 Fed. 737, 739.

_ 10. Act extending to employees in-
jured while engaged in intrastate com-
merce, unconstitutional—The Employ-
ers’ Liability Cases, 207 U. S. 463, 52
L. Ed. 297, 28 S. Ct. 141; Pedersen v.
Delaware, etc. Railroad (C. C.), 184
Fed. 737, 738.

11. Same—Separability of act.—The
Employers’ Liability Cases, 207 U. S.
463, 52 L. Ed. 297, 28 S. Ct. 141; Brooks
v. Southern Pac. Co.’ (C. C.), 148 Fed.
986; Howard v. Illinois Cent. R. Co.
5 POWER TO REGULATE RELATION OF MASTER AND SERVANT. § 3

§ 3. Where Injury to Interstate Employee Results from Negli-
gence of Employee or Agency Not Engaged in Interstate Commerce.
—Notwithstanding the principle above stated, that an employer engaged in
interstate transportation does not bring his entire business, intrastate as well
as interstate, within the legislative power of congress, and that congress
has no authority to extend the provisions of an employers’ liability act to
those employees engaged in commerce which is wholly intrastate, it must be
conceded that, in the exercise of its power to legislate for the better pro-
tection and safety of those employees who are engaged in interstate com-
merce, congress has the power to protect them and the commerce in which
they are engaged from dangers from whatever source arising, and may,
as it has done, extend the provisions of such an act to include the case of in-
juries to employees engaged in interstate commerce even where such injury
tesults from the negligence of an employee engaged wholly in intrastate
commerce.!?_ Thus in The Second Employers’ Liability Cases, 223 U. S. 1.
56 L. Ed. 327, 32 S. Ct. 169, the court said:

“The second objection proceeds upon the theory that even although con-
gress has power to regulate the liability of a carrier for injuries sus-
tained by one employee, through the negligence of another, where all
are engaged in interstate commerce, that power does not embrace in-
stances where the negligent employee 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 con-
gressional power. * * * It is not a valid objection that the act em-
braces instances where the causal negligence is that of an employee en-
gaged in intrastate commerce, for such negligence, when operating in-
juriously upon an employee engaged in interstate commerce, has the
same effect upon that commerce as if the negligent employee were also
engaged therein.”

The criterion, therefore, is not whether the agency or employee inflicting
the injury was engaged at the time in interstate commerce, but the effect of
the negligent act or omission upon such commerce.}3

(C. C.), 148 Fed. 997; Atchison, etc, (C. C.), 180 Fed. 832, affirmed 113

R. Co. v. Mills, 49 Tex. Civ. App. 349,
108 S. W. 480.

12. Where injury to interstate em-
ployee results from negligence of em-
ployee or agency not engaged in inter-
state commerce.— Second Employers’
Liability Cases, 223 U. S. 1, 56 L. Ed.
327, 32 S. Ct. 169; Grybowski v. Erie R.
Co. (N. J.), 95 Atl. 764.

13. Same—Effect of negligent act or
omission upon such commerce the true
criterion—Second Employers’ Liability
Cases, 223 U. S. 1, 56 L. Ed. 327, 32
S. Ct. 169; Lamphere v. Oregon R.,
etc, Co. 116 C. C. A. 156, 196 Fed.
336, 340; El Paso, etc., R. Co. v. Gutier-
rez, 215 U. S. 87, 54 L. Ed. 106, 30 S.
Ct. 21; Colasurdo v. Central Railroad

C. C. A. 379, 192 Fed. 901; Watson vw.
St. Louis, etc., R. Co. (C. C.), 169 Fed.
942. See, also, Hall v. Chicago, etc.,

R. Co. (C. C.), 149 Fed. 564 (decided

under the Act of 1906), and Zikos v.
Oregon R., etc., Co. (C. C.), 179 Fed.
893.

In Central R. Co. v. Colasurdo, 113
C. Cc. A. 379, 192 Fed. 901, affirming
180 Fed. 832, it appeared that the plain-
tiff was struck by a train while he and
other employees were engaged in re-
pairing a switch connected with a track
over which both interstate and intra-
state trains passed. In passing upon
this point, the court said: ‘The plain-
tiff was at the time engaged in inter-
state commerce and entitled to the
§ 4 FEDERAL EMPLOYERS LIABILITY ACT. 6

§ 4. In the District of Columbia, Territories, and Places under
Exclusive Federal Control.—The federal power of regulation between
the states rests solely upon the interstate commerce clause of the constitu-
tion,14 and, as we have seen, does not extend to commerce which is wholly
of a domestic character. But with respect to the territories, the District of
Columbia, and places under exclusive federal control, the legislative power
of congress is plenary, and, so far as commerce is concerned, is not depend-
ent upon the interstate commerce clause of the constitution; so that con-
gress has the power to regulate their comrherce, not only with other terri-
tories, states, nations and Indian tribes, but, by virtue of its general power
to govern, it possesses sole and exclusive authority to regulate their in-
ternal and domestic commerce as well.15 Hence it might be, and in the case
of the first Employers’ Liability Act was so held, that a statute which was
unconstitutional in so far as it undertook to regulate the liability of car-
riers for injuries to their employees while engaged in that commerce which
was wholly internal and domestic within the states, would be valid in so far
as it attempted to regulate the same subject with respect to carriers and
their employees engaged wholly in internal and domestic commerce within

the District of Columbia and the territories.1¢

rights secured by this act. That being
so, it is a matter of no consequence
whether the train that struck him was
engaged in that commerce or not.”

In Zikos v. Oregon R., etc., Co. (C.
C.), 179 Fed. 893, it was held that the
facts disclosed by the complaint did
not make it necessary to decide this
point, but that the purpose to render
a carrier engaged in interstate com-
merce liable to employees so engaged
being apparent, the provisions were
separate, whatever might be the rule
regarding an injury resulting to an in-
terstate employee from the negligence
of an employee not so engaged.

14. Power of congress in District of
Columbia, territories, and places under
exclusive federal control, not depend-
ent upon interstate commerce clause.
—Michigan Cent. R. Co. uv. Vreeland,
227 U. S. 59, 33 S. Ct. 192, Ann. Cas.
1914C, 176. i

15. The Employers’ Liability Cases,
207 U. S. 463, 52 L. Ed. 297, 28 S.
Ct. 141; El Paso, etc., R. Co. v. Gutier-
rez, 215 U. S. 87, 54 L. Ed. 106, 30 S.
Ct. 21.

16. Act may be valid as to territories
while invalid as to states—E1 Paso,
etc, R. Co. v. Gutierrez, 215 U. S. 87,
54 L. Ed. 106, 30 S. Ct. 21; Washington,
etc, R. Co. v7. Downey, 236 U. S. 190,
35 S. Ct. 406; McNamara v. Washing-
ton Terminal Co., 35 App. D. C. 230;
Philadelphia, etc., R. Co. v. Tucker, 35
App. D. C. 123; Washington R. Co. v.

Downey, 40 App. D. C. 147; Hyde vw.
Southern R. Co., 31 App. D. C. 466;
McNamara v. Washington Terminal
Co., 37 App. D. C. 384. See, also, The
Pawnee (D. C.), 205 Fed. 333; Atchi-
son, etc, R. Co. v. Tack (Tex. Civ.
App.), 180 S. W. 596, writ of error de-
nied in 104 Tex. 678, no op.; El Paso,
etc, R. Co. v. Gutierrez (Tex. Civ.
App.), 111 S. W. 159; S. CG, 102 Tex.
378, 117 S. W. 426. See, also, Atchison,
etc., R. Co. v. Pickens (Tex. Civ. App.),
118 S. W. 1133, writ of error denied in
104 Tex. 678, no op. See post, “Con-
stitutionality,’ Chap. IV.

In El Paso, etc.,.R. Co. v. Gutierrez,
215 U. S. 87, 54 L. Ed. 106, 30 S. Ct. 21,
the court had before it a judgment of
the Supreme Court of the State of
Texas, which sustained the federal act
(Act June 11, 1906, c. 3073, 34 Stat. 232
[U. S. Comp. St. Supp. 1911, p. 1316])
as applied to commerce in the territo-
ries. The judgment was affirmed. The
act, as applied to commerce in the Dis-
trict of Columbia, was sustained by the
Court of Appeals of the District in
Hyde v. Southern R. Co., 31 App. D.
C. 466, in an opinion referred to with
approval by the Supreme Court of the
United States, in the Gutierrez Case as
“While not binding as authority in this
court, we may note that the act, so
far as it relates to the District of
Columbia, was sustained in a well-con-
sidered opinion by the Court of Ap-
peals of the District of Columbia.”
7 POWER TO REGULATE RELATION OF MASTER AND SERVANT, = 8§_ 4-3

That the decision in the Employers’ Liability Cases!7 did not extend to
the act as a whole was pointed out in El Paso, etc., R. Co. v. Gutierrez, 215
U.S. 87, 54 L. Ed. 106, 30 S. Ct. 21, 24, where the court said:

“Tt was not intended to hold the act unconstitutional in so far as it related
to the District of Columbia and the territories, for it is there suggested
that to interpolate in the act the qualifying words contended for [‘any
employee while engaged in interstate commerce’] would destroy the act
in respect to the District of Columbia and the territories by limiting its
operation in a field where congress had plenary power, and did not de-
pend for its authority upon the interstate commerce clause of the con-
stitution.”

Though the act of 1906 was operative in the territories as long as they
were such, but upon admission to the Union as states it ceased to be the
law as to them. So the territory of Oklahoma, on its admission to the
Union, cannot be held to have adopted the act of 1906 as a law of the
state as it is repugnant to the constitution and contrary to local laws upon
the same subject. Furthermore the constitutional right to have adopted
the law is doubted for the reason that it was primarily framed to regulate
interstate commerce and in this respect it was declared unconstitutional as
being too broad an exercise of power even by congress. It is the more true
that it would be so unconstitutional if the state should attempt to adopt it
and enforce it as first enacted by congress.18

§ 5. Power Extends to All Carriers, Both on Land and Water.—
With respect to that commerce over which its power extends congress has
authority to legislate for the safety and protection of the employees of all
carriers while engaged in such commerce, whether the transportation be on
water or on land,!® though, as we shall hereafter see, the provisions of the
present act extend only to carriers by rail.

17. 207 U. S. 463, 52 L. Ed. 297, 28 19. Power of congress extends to all
S. Ct. 141. carriers, whether by land or water.—
18. Effect when territory admitted Spain v. St. Louis, etc., R. Co. (C. C.),
as state—Chicago, etc., R. Co. v. Hol- 151 Fed. 522.
liday (Okla.), 145 Pac. 786, 787.
CHAPTER II.

LIMITATION OF STATE AND TERRITORIAL POWERS.

1. State Power and Its Limitations, §§ 6-7.

a. General Consideration, § 6.

b. Effect of Priority of State Enactment, § 7.
2. Territorial Statutes Superseded, § 8.

§§ 6-7. State Power and Its Limitations—§ 6. General Con-
sideration.—The power of the state to control the conduct of individuals
therein for the safety of the community is not taken away by the provision
of the federal constitution merely because some fanciful or remote influ-
ence upon interstate commerce may result. On the other hand, state legis-
lation is prohibited which directly and intentionally controls and regulates
interstate commerce.! Definitions of the police power must be taken sub-
ject to the condition that the state cannot, in its exercise, for any purpose
whatever, encroach upon the powers of the general government, or upon
rights granted or secured by the supreme law of the land.”

With respect to the liability of common carriers for injuries to their
employees growing out of their negligence or the negligence of their other
employees, the subject is clearly a proper one for police regulation, and the
states have the power, when they choose to exercise it, to make regulations
on that subject, even though they may extend to and control rights and lia-
bilities as between carriers and their employees while engaged in interstate
commerce; provided, always, there is no existing federal legislation cover-
ing the same field. Such statutes, so long as they do not unreasonably in-
terfere with interstate commerce, are not considered regulations of inter-
state commerce, notwithstanding they control, in some degree, the conduct
and liability of those engaged in such commerce, but come rather within the
category of those matters as to which the power of congress is not exclusive
per se, and concerning which the states may legislate until congress shall see
fit to exercise the power vested in it. But when congress assumes to exercise
its powers by enacting legislation covering the particular subject, all state leg-
islation upon the same subject is superseded and becomes inoperative in
so far as it affects the rights and liabilities of carriers and their employees
while engaged in interstate commerce, and without regard to whether it is

1. State power and its limitations. cised as to encroach upon federal pow-
Michigan Cent. R. Co. v. Vreeland, 227 ers or rights protected by federal con-
U.S. 59, 33 S. Ct. 192, Ann. Cas. 1914C, = stitution—-New Orleans Gas Co. vw.
176; State v. Chicago, etc, R. Co. 136 Louisiana Light Co., 115 U. S. 650, 66),
Wis. 407, 117 N. W. 686, 19 L. R. A, 29 L. Ed. 516, 6 S. Ct. 252; Michigan
N. S., 326. Cent. R. Co. v.. Vreeland, 227 U. S. 59,

2. Police power not to be so exer- 33 S. Ct. 192, Ann. Cas. 1914C, 176.
9 LIMITATION OF STATE AND TERRITORIAL POWERS. § 6
in terms abrogated or not. However if, such federal legislation should
be repealed, or should be declared unconstitutional, existing laws upon the
statute books of the several states, which were not otherwise objectionable,
would immediately become operative,# a result which was expressly de-
clared to have taken place with regard to a law of Nebraska5 upon the ren-
dering of the decision in the First Employers’ Liability Cases,® holding the
Federal Act of June 11, 1906, to be unconstitutional, the latter act being
construed, of course, as never having existed for any purpose.7

In order however, to supersede and render inoperative a state statute it
must cover the same subject-matter. So this same Nebraska statute was
not invalid for the reason that besides covering ‘liability for injuries, it also
covered acts of negligence of railroad companies in respect to their cars,
roadbed, machinery, etc., subjects dealt with by the federal safety appliance

8. Regulation of interstate carriers
and employees—Power of congress not
exclusive — Superseding state legisla-
tion.—United States—Michigan Cent.
R. Co. v. Vreeland, 227 U. S. 59, 33 S.
Ct. 192, Ann. Cas. 1914C, 176; Sher-
lock v. Alling, 93 U. S. 99, 23 L. Ed.
819; Missouri Pac. R. Co. v. Mackey,
127 U. S. 205, 32 L. Ed. 107, 8 S. Ct.
1161; Minneapolis, etc., R. Co. v. Her-
tick, 127 U. S.. 210, 32 L. Ed. 109, 8
S. Ct. 1176; Chicago, etc. R. Co. wv.
Pontius, 157 U. S. 209, 39 L. Ed. 675,
15 S. Ct. 585; Tullis v. Lake Erie, etc.,
R. Co., 175 U. S. 348, 44 L. Ed. 192,
20 S. Ct. 136; The Employers’ Liability
Cases, 207 U. S. 463, 52 L. Ed. 297, 28
S. Ct. 141; Second Employers’ Liabil-
ity Cases, 223 U. S. 1, 56 L. Ed. 327,
32 S. Ct. 169; Missouri, etc. R. Co.
v. Castle, 224 U. S. 541, 56 L. Ed. 875,
32 S. Ct. 606; S. C., 97.C. C. A. 124,
172 Fed. 841; Kelley v. Great Northern
R. Co. (C. C.), 152 Fed. 211; Bottoms
v. St. Louis, etc., R. Co. (C. C.), 179
Fed. 318; Hall v. Louisville, etc. R.
Co. (C. C.), 157 Fed. 464; Whittaker v.
Illinois, etc. R. Co. (C. C.), 176 Fed.
130; El Paso, etc., R. Co: v. Gutierrez,
215 U. S. 87, 54 L. Ed. 106, 30 S. Ct.
21; Fulgham v. Midland Val. R. Co.
(C. C.), 167 Fed. 660; Taylor v. South-
ern R. Co. (C. C.), 178 Fed. 380; Dew-
berry v. Southern R. Co. (C. C.), 175
Fed. 307; Cound v. Atchison, etc. R.
Co. (C. C.), 173 Fed. 527; Spokane,
etc. R. Co. v. Campbell (U. S.), 36 5.
Ct. 683.

Arkansas.—St. Louis, etc., R. Co. v.
Hesterly, 98 Ark. 240, 135 S. W. 874.

Iowa.—Bradbury v. Chicago, etc., R.
Co., 148 Iowa 51, 128 N. W. 1.

Missouri—Rich v. St. Louis, etc. R.
Co., 166 Mo. App. 379, 148 S. W. 1011.

Montana—Melzner v. Northern Pac.
R. Co., 46 Mont. 277, 127 Pac. 1002.

Oregon.—Oberlin v. Oregon-Wash-
ington R., etc., Co, 71 Ore. 177, 142
Pac. 554.

Texas:—Missouri, etc, R. Co. v.
Turner (Tex. Civ. App.), 138 S. W.
1126; Missouri, etc, R. Co. v. Sadler
(Tex. Civ. App.), 149 S. W. 1188;
Rivera v. Atchison, etc., R. Co. (Tex.
Civ. App.), 149 S. W. 223.

4. State laws— Become operative
upon repeal of federal act or decision
declaring same unconstitutional.—Mis-
souri, etc., R. Co. v. Castle, 97 C. C.
A. 124, 172 Fed. 841; S. C., 224 U.S.
541, 56 L. Ed. 875, 32 S. Ct. 606; Mis-
souri, etc. R. Co. v. Turner (Tex. Civ.
App.), 138 S. W. 1126, 1128; Missouri.
etc., R. Co. v. Sadler (Tex. Civ. App.),
149 S. W. 1188.

Speaking of the effect of the federal
act upon state legislation, the Supreme
Court said, in a recent case: “It there-
fore follows that “in respect of state
legislation prescribing the liability of
such carriers for injuries to their em-
ployees while engaged in interstate
commerce, this act is paramount and
exclusive, and must remain so until
congress shall again remit the subject
to the reserved police power of the
states.” Michigan Central R. Co. v.
Vreeland, 227 U. S. 59, 33 S. Ct. 192,
194, Ann. Cas. 1914C, 176.

5. Laws Neb. 1907, p. 191, c. 48, § 1.

6. 207 U. S. 463, 52 L. Ed. 297, 28 S.
Ct. 141.

7. Missouri, etc., R. Co. v. Castle, 97
Cc. C. A. 124, 172 Fed. 841; S. C., 224
U. S. 541, 56 L. Ed. 875, 32 S. Ct.
606, 608. See, also, Chicago, etc. R.
Co. v. Hackett, 57 L. Ed. 581, distin-
guishing Northern Pac. R. Co. w.
Washington, 222 U. S. 370, 56 L. Ed.
237, 32 S. Ct. 160.
§ 6 FEDERAL EMPLOYERS’ LIABILITY ACT. 10
acts.8 But as to liability for injuries, that the act is necessarily exclusive
in the field to which it is addressed irresistibly appears when it is considered
that no cause of action or remedy can arise under the common-law which is
not preserved and embraced within the federal act, which embraces every
common-law right and remedy which can, under any circumstances, arise,
so far as employers engaged in interstate commerce are concerned.®

It has been contended that the federal legislation giving a right of ac-
tion in case of a wrongful death for the recovery of damages ‘for the bene-
fit 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”—does not cover the same subject cov-
ered by a state law giving a right of action to the parent to recover dam-
ages for his mental pain and suffering and for loss of services caused by
the wrongful death of his minor child. But within the sphere it operates,
the federal law covers every case of wrongful death whether of an adult
or a minor; and within the sphere of its operation the federal law is both
daramount and exclusive. Therefore any regulation by the state that in any
material way conflicts with the paramount federal law is excluded.1°

Upon the ground of the statutes not covering the same subject-matter,
it has been contended that, as the act of congress gives a right of action in
favor of dependent relatives, while the state statute gives the right in favor
of relatives, whether dependent or not, the two statutes do not cover precisely
the same field, and therefore the state statute was not superseded, in so far
as it gives a right of action in favor of relatives who are not dependent.
This is a misconception of the scope of the legislation of congress. It deals
with the liability of interstate carriers by railroad for injuries to their em-
ployees while both are engaged in interstate commerce. It creates and de-
termines that liability. It is paramount and exclusive, and necessarily super-
sedes the state law upon that subject. Therefore the liability of such car-
riers for such injuries must be tested solely by the act of congress, which
cannot be pieced out by the state law on the same subject.22

However, the act extends only to the subject of injuries by railroads en-
gaged in interstate commerce, to their employees when also engaged therein,
and does not extend to the equipment of track so as to be in conflict and
render invalid a state statute requiring railroads to fill or block all switches,
frogs and guard rails.1° Neither does the act extend to injuries received by

8. State and federal acts must em- R. Co. (Iowa), 155 N. W. 169; Tonsel-

brace same subject-matter.— Missouri,
etc., R. Co. vw. Castle, 224 U. S. 541,
56 L. Ed. 875, 32 S. Ct. 606.

9. Southern . Co. wv. Howerton
(Ind.), 105 N. E. 1025, 1028, reversing
101 N. E. 121. ;

10. Same—Recovery for injury or
death of minor.—Flanders v. Georgia,
etc, R. Co., 68 Fla. 479, 67 So. 68.

Contra.—Nelson v. Illinois Cent.

lito v. New York, etc., R. Co. (N. J.),
94 Atl. 804.

_12. Same—State statute providing
different beneficiaries.—Jones <. Charles-
ton, etc, R. Co, 98 S. C. 197, 82 S.
E. 415.

13. Statute requiring blocking of
guard rails, switches and frogs.—St.
Louis, etc. R. Co. v. McNamare, 91
Ark. 515, 122 S. W. 102.
11 LIMITATION OF STATE AND TERRITORIAL POWERS. §§ 6-7
employees when not engaged in interstate commerce and as to such the
existing state statutes and common-law remains in full force and effect, and
as is fully noted subsequently,!* each operates in its appropriate field and is
therein supreme. As subsequent state legislation may be so broad as to in-
clude subjects covered by this act, still it is not invalid to that extent but
only inoperative and in construing a state statute it is presumed not to em-
brace interstate commerce when not specially limited to intrastate com-
merce.1® It has been held that a state Workmen’s Compensation statute
which does not purport directly to regulate or impose a burden upon inter-
state or foreign commerce, but merely undertakes to regulate the relations
between employers and employees in the state, but which may, and no
doubt does, indirectly affect commerce, to the extent that it may affect in-
terstate or foreign commerce it is plainly within the jurisdiction of the state,
until congress by entering the field excludes state action,’® but as hereafter
noted, it cannot operate in a case to which the federal act applies.17

§ 7. Effect of Priority of State Enactment.—The inaction of con-
gress had in nowise affected its power to regulate the liability of an employer
to his employees when engaged in interstate commerce, and the fact that the
state statutes were enacted and in operation before this act was passed
would not prevent them being superseded by the federal law.18 Thus it was
held that a state could not make a regulation concerning the hours of serv-
ice of employees on railroad trains moving within the state, and to apply
such regulation to’a train engaged in interstate commerce, when congress
had enacted a statute on that subject, though the time of its taking effect
had not elapsed.19

But the intention of congress to take control of the subject so as to in-
validate existing state statutory regulations could not be inferred from the
enactment of the Act of June 11, 1906, since that statute, having been held
to be an invalid exercise of the power of congress, was not a law for any
purpose, but was as inoperative as if it had never been passed, and could
neither confer a right or immunity nor operate to supersede any existing

valid law.2°

14. Legislation on intrastate com-
merce.—See post, “Exclusive Opera-
tion of State and Federal Law,” § 25.

15. Houston, etc. R. Co. v. Bright
(Tex. Civ. App.), 156 S. W. 304, writ
of error denied in 159 S. W. xxiii, no
op.; Texas, etc., R. Co. v. Yerkes (Tex.
Civ. App.), 156 S. W. 579.

16. Workmen’s Compensation Act as
interference with interstate commerce.
—Jensen v. Southern Pac. Co., 215 N.
Y. 514, 109 N. E. 600, L. R. A. 1916A,
403.

17. See post, “Controlling over State
Workmen’s Compensation Acts,” § 28.

18. Immaterial that state law was en-
acted prior to federal act.—Rich v. St.

But the congressional acts have no retroactive operation on

Louis, etc., R. Co., 166 Mo. App. 379,
148 S. W. 1011.

19. Power of state to enforce state
law between time of enactment and
time of taking effect of federal act.—
Northern Pac. R. Co. v. Washington,
222 U. S. 370, 56 L. Ed. 237, 32 S. Ct.
160, reversing 53 Wash. 673. 102 Pac.
876, 17 Ann. Cas. 1013.

20. Same—Effect of Act of 1906, on
legislative power of state.—Chicago,
etc., R. Co. 7. Hackett, 228 U. S. 559,
57 L. Ed. 966, 33 S. Ct. 581, distin-
guishing Northern Pac. R. Co. »v.
Washington, 222 U. S. 370, 56 L. Ed.
237, 32 S. Ct. 160.
§§ 7-8 FEDERAL EMPLOYERS’ LIABILITY ACT. 12
state laws and so the act of congress of March 4, 1915, providing for in-
spection and appliances of locomotives, does not abrogate a state law so as
to affect a judgment previously rendered for a plaintiff.*1

§ 8. Territorial Statutes Superseded.—In view of the direct con-
trol which congress has over the territories, the principle just stated, with
respect to state laws affecting interstate commerce being superseded by acts
of congress, applies, with even stronger force to statutes enacted by terri-
torial legislatures, or, in the absence of legislation, to the rules of the com-
mon-law in force within the territories. In either case, rules regulating
the liability of carriers for the death or injury of their employees are
superseded by the legislation of congress in so far as it covers the same
field.?2

21. Retroactive operation on state 223 U. S. 1, 56 L. Ed. 327, 32 S. Ct.

laws.—Randall v. Minneapolis, etc., R.
Co. (Wis.), 156 N. W. 629. See post,
“Prospective or Retroactive,” § 23.
22. Superseding territorial legislation.
—El Paso, etc. R. Co. wv. Gutierrez,
215 U. S. 87, 54 L. Ed. 106, 30 S. Ct.
21; Second Employers’ Liability Cases,

169; Cound v. Atchison, etc., R. Co.
(C. C.), 173 Fed. 527; American R. Co.
v. Didrickson, 227 U. S. 145, 33 S. Ct.
224, 225; Southern Pac. Co. v. McGin-
nis, 98 C. C. A. 403, 174 Fed. 649; Ri-
vera v. Atchison, etc., R. Co. (Tex. Civ.
App.), 149 S. W. 223.
CHAPTER IIL.

NATURE AND SCOPE oF ACT.

1. Reason, Purpose and General Nature of Act, § 9.
2. Scope of Act, §§ 10-13.
a. Limited to Common Carrier, § 10.
b. Limited to Railroads, § 11.
c. Limited to Parties Engaged in Interstate Commerce, § 12.
d. Necessity of Existence of Relation of Employer and Employee, § 13.

§ 9. Reason, Purpose and General Nature of Act.—By this act
congress has undertaken to cover the subject of the liability of railroad
companies to their employees injured while engaged in interstate com-
merce,! and to adopt a uniform rule which will operate to that end.2 The
purpose of congress in the enactment of this act was the granting of addi-
tional rights to the servant, and the removal of existing defenses by the
master in actions by injured employees against railway companies.?

The reasoning of the cases in which the fellow-servant rule has been laid
down by the courts has, in view of modern methods and conditions, lost
much, and in some cases all, of its force, and in at least one case decided
under these acts the rule as well as the reason upon which it is based, has
been pronounced archaic. The rules as to assumption of risk and contribu-
tory negligence, as applied by the courts, in view of modern conditions sur-
rounding those engaged in certain occupations, are manifestly harsh, cruel,
and unjust, and ought long since in the furtherance of justice and the interest
of humanity to have been greatly modified. And in view of the well-known
fact, of which congress and the courts take constant notice, that the great
employers of labor and their employees do not stand upon an equality, and
that as a class the great proprietors are in a position to prescribe terms and
lay down rules which laborers are practically constrained to obey, there are
certainly substantial reasons why employers engaged in certain occupa-
tions should not be permitted to relieve themselves by any contract, rule or
regulation from liability for injuries caused by their negligence or by the
negligence of their other employees.®

1. Reason, purpose, and general na-_ transportation and to broaden the re-
ture of act——Michigan Cent. R. Co. v. lief for damages sustained by employ-
Vreeland, 227 U. S. 59, 33 S. Ct. 192, ees while so engaged.” Long v. Lusk

Ann. Cas. 1914C, 176. (Ark.), 186 S. W. 601.
2. Burnett v. Atlantic, etc. R. Co., 4. Existing rules considered archaic.
163 N. C. 186, 79 S. E. 414. —Snead v. Central, etc., R. Co. (C. C.),
3. Hulac v. Chicago, etc. R. Co. (D. 151 Fed. 608; Kelley v. Great Northern
C.), 194 Fed. 747, 749. R. Co. (C. C.), 152 Fed. 211.

“The federal Employers’ Liability 5. Kelley v. Great Northern R. Co.
Act has for one object the lessening of (C. C.), 152 Fed. 211; Fulgham v. Mid-
danger to employees during interstate land Val. R. Co. (C. C.), 167 Fed. 660.

13
§ 9 FEDERAL’ EMPLOYERS LIABILITY ACT. 14

It is plain, therefore, that the present act reflects, and is in harmony with,
what may be said to be the strong trend of the public mind in nearly all
civilized countries at this time, and to quote the language of Judge Rogers
in Fulgham v. Midland Valley R. Co. (C. C.), 176 Fed. 660, 663, where
it is said:

“It proceeds on the theory that the railroad corporations are quasi public
corporations, and that the railroad company in the first place, and the
public in its final analysis, should be insurers of the lives and persons
of its employees while engaged in interstate commerce, for if the rail-
road companies are to be the insurérs of their employees they must in
the end be reimbursed also by their customers for whom they do the
carrying business, and in its last analysis their customers are simply the
public. The theory of this legislation is that the public should share
the misfortunes of the families of those who are injured or killed in the
quasi public business in which railroads are engaged. So it is provided,
in substance, where the employee is injured in the service of a railroad
while engaging in interstate commerce, he shall have a cause of action
for that injury, and this action he can maintain in his own name, al-
though he may have by his own negligence contributed to the injury;
but the damages in such case shall be diminished by the jury in pro-
portion to the amount of negligence attributable to such employee.
Here the common-law doctrine of contributory negligence is abrogated
in the interest of the employee and the doctrine of comparative negli-
gence substituted, which, pro tanto, encourages care and diligence upon
the part of the employee.” 6

The Act of 1906 was held to be unconstitutional by the Federal Supreme
Court in an opinion filed on January 6, 1908, on the ground that it attempted
a regulation of the liability of interstate carriers for injuries to their em-
ployees not only while engaged in interstate commerce, but attempted also
to prescribe the rules governing the liability of such carriers as to all their
employees, intrastate as well as interstate, and regardless of whether en-
gaged in interstate commerce at the time of the injury or not? In holding
the act invalid, however, the court anticipated the possible objection of
the want of power in congress to legislate upon the subject under any cir-
cumstances, and intimated that congress had the power to enact such a
regulation if restricted in its application to interstate carriers and their em-
ployees, and to injuries sustained while engaged in such commerce. On the
31st day of January, 1908, the President, in a special message to congress,
called its attention to that decision and earnestly recommended the enact-
ment of a statute to apply only to the class of cases upon which the court had
decided it could constitutionally legislate, and congress being in session at.
the time the present act was introduced, was carefully considered by the
Judiciary Committee of the House, and thereafter enacted as a law at that
session, and approved by the President on April 22, 1908, only a little more

6. See, also, Kelley v. Great North- tion, prompted second enactment.—The
ern R. Co. (C. C.), 152 Fed. 211, Employers’ Liability Cases, 207 U. S.
7. Recognized necessity of legisla- 463, 52 L. Ed. 297, 28 S. Ct. 141.
15 §§ 9-11

NATURE AND SCOPE OF ACT.

than three months after the supreme court had declared the former act un-
constitutional.§

§§ 10-13. Scope of Act—§ 10. Limited to Common Carrier.—
The extent of either act was limited to common carriers,® and a railroad
engaged in transporting its own products only is not such.1° But a terminal
company, offering its facilities to railroads to enter a large city, is a com-
mon carrier.1t So is a railway though only carrying passengers,!? and
where a railroad operates part of its line through a construction company
as its agent, the latter is a common carrier.}3

§ 11. Limited to Railroads.—Unlike the former act, which embraced
common carriers of every description, the present act applies only to car-
riers by railroad,!4 while engaging in interstate or foreign commerce, and
only to an employee “suffering injury while he is employed by such carrier
in such commerce.” And as the act does not apply to interstate commerce
by water,!5 one employed on an interstate canal does not come within the

act.16

The act does not extend to a vessel which is not a part of any railroad

8. Watson v. St. Louis, etc., R. Co.
(C. C.), 169 Fed. 942, 945.

9. Limitation to common carrier.—
The Pawnee (D. C.), 205 Fed. 333;
Shade wv. Northern Pac. R. Co. (D. C.),
206 Fed. 353; Copper River, etc., R.
Co. v. Heney, 128 C. C. A. 131, 211
Fed. 459.

“Neither party pleaded that the de-
fendants were engaged in interstate
commerce. On the contrary, it was
shown by appellants that, prior to the
time of the accident, no passengers or
freight for the public had been carried
over the line upon which the accident
occurred, and it was several days after
the accident before the line was open
for the carriage of freight and passen-
gers as a common carrier; so, there
being no traffic, the question of inter-
state commerce can not possibly be in
the case.” Chicago, etc, R. Co. v.
Trout (Tex. Civ. App.), 152 S. W.
1137, 1139, writ of error granted in 156
S. W. xvi, no op.

10. Bay v. Merrill, etc, Lumber Co.,
136 C. C. A. 277, 220 Fed. 295, affirm-
ing 211 Fed. 717.

“A common carrier is one who un-
dertakes to transport for hire from one
place to another the goods of such as
choose to employ him. * * * A
concern is not a common carrier that
is engaged in transporting its own
products, and, before a concern incor-
porated as a common carrier could
come within the terms of the Employ-
ers’ Liability Act of Congress, it would

have to do something further than
merely file its articles of incorpora-
tion.” Bay v. Merrill, etc., Lumber Co.
(D. C.), 211 Fed. 717, 720. But see
Nordgard v. Marysville, etc, R. Co.
(D. C.), 218 Fed. 737, affirming 211
Fed. 721, where the contrary is held
but that it was not interstate com-
merce.

11. McNamara v. Washington Ter-
minal Co., 37 App. D. C. 384.

12. Washington R. Co. v. Downey,
40 App. D. C. 147.

18. Copper River, etc, R. Co. vw.
‘Heney, 128 C. C. A. 131, 211 Fed. 459.

14. Limitation to railroad—Hammil
v. Pennsylvania R. Co. (N. J.), 94
Atl. 313.

Interurban line as_ railroad.— An
electric interurban railway line which
transfers its cars, with passengers
therein, from its track to the track of
a street railway, and thence transports
them over the latter track, dividing the
fare collected for that part of the
transportation covering the street rail-
way tracks, is a railroad within the
meaning of the act of congress. Mc-
Adow v. Kansas, etc., R. Co. (Mo.),
164 S. W. 188, 192, affirmed 36 S. Ct.
252. See also, Campbell v. Spokane,
etc, R. Co. (U. S.), 36 S. Ct. 683;
Watts v. Ohio Valley Electric Ry. Co.

- (W. Va.), 88 S. E. 659.

15. Kennerson v. Thames Towboat
Co. (Conn.), 94 Atl. 372, 375.

16. Hammil v. Pennsylvania R. Co.
(N. J.), 94 Atl. 313.
§ 11

FEDERAL EMPLOYERS LIABILITY ACT. 16

system ;!7 it does extend to boats used by a railroad in connection with

transportation by rail.1§
Fed. 335, the court said:

In Erie R. Co. v. Jacobus, 137 C. C. A. 151, 221

“The first question is whether the statute which defines the liability of a

common carrier ‘by railroad’ for injuries occasioned by the negligence
of its employees, extends that liability for injuries so occasioned, not
upon its railroad, but upon one of its tugboats engaged in the business
of continuing or completing interstate traffic. The defendant contends
that, in using the expression ‘common carriers by railroad’ in the title
of the act, congress cannot be presumed to have intended the statute
to apply to common carriers by water, and that when a common carrier
is continuing its business by boat it cannot be held to the liability im-
posed upon it as a common carrier ‘by railroad.’ In considering the
statute in connection with the history of congressional enactments upon
the subject of employers’ liability, it is clear that in limiting the statute
of 1908 to common carriers ‘by railroad’ congress endeavored to avoid
one of the constitutional objections made to the act of 1906 (Employ-
ers’ Liability Cases, 207 U. 8. 463, 28 Sup. Ct. 141, 52 L. Ed. 297),
and that it did not attempt or intend to define the instrumentalities upon
which their liability for negligence should exist or by which it should
be limited. The expression ‘by railroad’ is but descriptive of the kind
of common carriers to which the statute relates, distinguishes them
from common carriers of other classes to which the act does not extend,
and describes the kind of employers and employees who are respectively
charged with and protected by its provisions, under the power of con-
gress to make such classifications and distinctions. Second Employers’
Liability Cases, 223 U.S. 1, 52, 32 S. Ct. 169, 56 L. Ed. 327, 38 L. R.
A., N.S., 44. If the expression ‘common carriers by railroad,’ as used
in the title of the act, is open to debate, the clear expression of the act
itself with respect to carriers’ liabilities in connection with the instru-
mentalities of railroad operation, including by enumeration boats and
wharves, discloses that the scope of the act was intended to include the
liability of carriers for their negligence, or that of their employees, oc-
curring upon or in connection with those instrumentalities while en-
gaged in interstate commerce.”

In Jensen v. Southern Pac. Co.,!9 it is held that a railroad company op-
erating a steamship line is not a “carrier by railroad” so that an employee
injured while unloading a ship of the company could maintain an action un-
der the federal act. The case was no doubt correctly decided as from the

17. As extending to vessels and
boats.—The Pawnee (D. C.), 205 Fed.
333.

“Where a vessel is part of a railroad
system, and its crew are employees of
the railroad, it would seem as if this
act might include maritime injuries.
The Passaic (D. C.), 190 Fed. 644, 649.
But the Pawnee was not a part of a
railroad or railroad system, nor a com-
mon carrier.” The Pawnee (D. C.),
205 Fed. 333.

As to whether employees thereon

are employed in interstate commerce,
see post, “Employees Engaged upon
or about Ferryboats, or Other Vessels
Optated by Railway Companies,”

18. Erie R. Co. v. Jacobus, 137 C. C.
A. 151, 221 Fed. 335. See also, Hurley
v. Illinois Cent. R. Co. (Minn.), 157
N. W. 1005; Baugham v. New York,
etc., R. Co., 36 S. Ct. 592.

19. 215 N. Y. 514, 109 N. E. 600, L.
R. A. 1916A, 403.
17 NATURE AND SCOPE OF ACT, §§ 11-12
evidence it did not appear even indirectly that the company’s transportation
business was in any way related to a railroad, certainly not to any particular
line ; and that the words “boats” and “wharves” of the statute could be given
due effect by applying them to adjuncts or auxiliaries to transportation by
railroad. But in view of the fact that the defendant company does operate
a transcontinental railroad, upon which the bulk of the traffic handled
by its steamships originates or ultimately reaches its destination, so that if
this were shown by evidence there is no doubt the defendant would be held
to come within the act. Thus an employee at the Galveston or New Orleans
pier could hold the company liable under the act, while transferring
freight from the cars to the ship and an employee at the New York pier
should be able as well to hold it liable.

§ 12. Limited to Parties Engaged in Interstate Commerce.—In
order to establish a cause of action under the act, the offending carrier at
the time of the injury must have been engaged in interstate or foreign com-
merce, and the injury must have been suffered by the employee while em-
ployed by such carrier in such commerce. Both these facts must be present
or the act does not apply—the carrier must be actually engaging in interstate
commerce, and the employee must also be taking part therein. If, there-
fore, the business being done by the carrier is purely intrastate, and in the
course of such business it injuries an employee, the act does not apply.
Neither does it apply, although the business being done by the carrier is
commerce between the states, if the injured employee is engaged in work
that does not properly belong to such commerce.?® But an employee may

20. Both carrier and employee must
have been engaged in interstate com-
merce at time of injury.—United States.
—Pedersen v. Delaware, etc., R. Co.,
229 U.S. 146, 57 L. Ed. 1125, 33 S. Ct.
648, Ann. Cas. 1914C, 153 (Mr. Justice
Lamar. dissenting), reversing (C. C.
A.), 197 Fed. 537, which affirmed (C.
C.), 184 Fed. 737; Lamphere v. Oregon,
etc, R. Co. (C. C.), 193 Fed. 248, re-
versed on application of this rule to
facts in 196 Fed. 336; The Pawnee (D.
C.), 205 Fed. 333; Kelly uv. Chesapeake,
etc. R. Co. (D. C.), 201 Fed. 602;
Illinois Cent. R. Co. vw. Behrens, 233
U. S. 4%3, 58 L. Ed. 1051, 34 S. Ct.
646, Ann. Cas. 1914C, 163; Boyle v.
Pennsylvania R. Co. (D. C.), 221 Fed.
453, affirmed in 288 Fed. 266; Smith
v. Camas Prairie R. Co. (D. C.), 216
Fed. 799; Shanley v. Philadelphia, etc.,
R. Co. (D. C.), 221 Fed. 1012; North
Carolina R. Co. v. Zachary, 232 U. S.
248, 58 L. Ed. 591, 34 S. Ct. 305, Ann.
Cas. 1914C, 159; Erie R. Co. vw Ja-
cobus, 137 CG. C. A. 151, 221 Fed. 335;
Shanks v. Delaware, etc. R. Co. (U.
S.), 36 S. Ct. 188.

Arkansas.—St. Louis, etc., R. Co. v.

Fed Act—2

Hesterly, 98 Ark. 240, 135 S. W. 874,
reversed, on other points, in 228 U.
S. 702, 57 L. Ed. 703, 33 S. Ct. 703.

Georgia.—Charleston, etc., R. Co. v.
Anchors, 10 Ga. App. 322, 73 S. E.
551.

Idaho.—Neil v. Idaho, etc., Railroad,
22 Idaho 74, 125 Pac. 331.

Illinois —Patry v. Chicago, etc. R.
Co., 265 Ill. 310, 106 N. E. 843.

Kansas—Barker v. Kansas City,
etc., R. Co., 88 Kan. 767, 129 Pac. 1151,
43 L. R. A, N.S. 1121.

Louisiana.—Gordon v. New Orleans,
etc., R. Co., 185 La. 137, 64 So. 1014.

Minnesota.—Hurley v. Illinois Cent.
R. Co. (Minn.), 157 N. W. 1005.

Missouri—Miller v. Kansas, etc., R.
Co., 180 Mo. App. 371, 168 S. W. 336.

New Jersey—Pierson v. New York,
etc., R. Co., 83 N. J. L. (54 Vr.), 661,
85 Atl. 233.

North Carolina—Zachary v. North
Carolina R. Co., 156 N. C. 496, 72 S.
E. 858; Meyers v. Norfolk, etc., R.
Co., 162 N. C. 343, 78 S. E. 280, 48
L. R. A., N. S., 987. i

Oklahoma.—Atchison, etc., R. Co. v.
Pitts (Okla.), 145 Pac. 1148; Wachita,
§ 12 FEDERAL EMPLOYERS’ LIABILITY ACT. 18

have the benefit of the safety appliance act even though he is not engaged
in interstate commerce.??

The necessity that both parties be engaged in interstate commerce and
that such had not been changed was noted in Boyle v. Pennsylvania R. Co.
(D. C.), 221 Fed. 453, 455, where the court said:

“The application of the act of congress is made to turn upon two facts.
The death or injury to the employee must have been caused while the
defendant company was a common carrier ‘engaged’ in interstate com-
merce and while the employee was ‘employed’ in such commerce. The
thought embodied in the Pederson Case as finally ruled is that an em-
ployee who is at work on or about any instrument of interstate com-
merce is employed in such commerce, and being so employed is entitled
to the protection given by the act of congress from injuries caused by
the carrier employer, whether the thing by which he is injured is also
in use as an instrument of interstate commerce or not. We do not un-
derstand that the necessity for the presence of the two things required
by the act of congress has been denied by any ruling of the supreme
court. On the contrary, we understand that, although this duality of
conditions is not necessary to the exercise of the power of congress,
yet this very case recognizes both conditions to have been incorporated
in the act by congress.”

But as the present act was clearly passed to meet the objection of the
decision in the first Employers’ Liability Cases,?? it was doubtless the pur-
pose of congress to comprehend within its provisions the whole subject of
the relations of common carriers by rail and their employees engaged in
interstate commerce,?* and it is held that it must be construed as including
within the terms “every common carrier by railroad,” and ‘“‘person em-
ployed in such commerce,” every carrier and every person whom congress
could constitutionally include,?4 as+well as excluding those whom congress

etc, Ry. Co. vw Puckett (Okla.), 157
Pac. 112.

West Virginia—McKee v. Ohio Val-
ley, etc., R. Co. (W. Va.), 88 S. E.
616; Watts v. Ohio Valley Electric Ry.
Co. (W. Va.), 88 S. E. 659.

Wisconsin.—Gray v. Chicago, etc., R.
Co., 153 Wis. 637, 142 N. W. 505, af-
firmed in 35 §. Ct. 620.

Before the act of congress of April
22, 1908, known as the “Federal Em-
ployers’ Liability Act,’ applies to an
action for damages brought against a
railroad company by one of its em-
ployees for injuries received in the
service of the company, it must ap-
pear (1) that the railroad company is
an interstate carrier; (2) that, as to
the transaction through which the in-
jury occurred, it was at the time en-
gaged in interstate commerce; and (3)
that the injured employee was at the
time engaged in interstate commerce.
Charleston, etc., R. Co. v. Anchors, 10
Ga. App. 322, 73 S. E. 551.

21. Texas, etc, R. Co. v. Rigsby (U.
S.), 36 S. Ct. 482; San Antonio, etc.,
R. Co. v. Wagner (U. S.), 36 S. Ct.
626.

22. Designed to include every carrier
and every person whom congress could
constitutionally include——The Employ-
ers’ Liability Cases, 207 U. S. 463, 52
L. Ed. 297, 28 S. Ct. 141.

23. United States——Colasurdo v. Cen-
tral Railroad (C. C.), 180 Fed. 832, 837,
affirmed 192 Fed. 901, 113 C. C. A.
379; Kelley v. Great Northern R. Co.
(C. C.), 152 Fed. 211.

Montana.—Melzner v. Northern Pac.
R. Co., 46 Mont. 277, 127 Pac. 1002.

New York.—Carr v. New York, etc.,
Co., 77 Misc. Rep. 346, 136 N. Y. S
501,

24, Colasurdo v. Central Railroad (C.
C.), 180 Fed. 832, affirmed in 113 C.
C. A. 379, 192 Fed. 901; Kelley v.
Great Northern R. Co. (C. C.), 152 Fed.
211; Horton v. Oregon-Washington
a etc., Co. 72 Wash. 503, 130 Pac.
19 NATURE AND SCOPE OF ACT. § 12
could not include.2® Hence, if the conditions above stated concur, namely,
that_the injury was sustained while the carrier was engaging in interstate
commerce, and to an employee of such carrier while he was also engaged
therein, the fact that the carrier and the employee were also engaged at
the same time in intrastate commerce, using perhaps the same means and
agencies for both, is immaterial.26 And since the same man may have du-
ties including both interstate and intrastate commerce, it follows that the
act will not necessarily apply to the same person in all the details of his
employment, but that he will be subject to the act while engaged in the one
and not in the other.2? In Illinois Cent. R. Co. v. Behrens, 233 U. S. 473,
478, 58 L. Ed. 1051, 34 S. Ct. 646, Ann. Cas. 1914C, 163, the court said:

“Giving to the words ‘suffering injury while he is employed by such car-
rier in such commerce’ their natural meaning, as we think must be
done, it is clear that congress intended to confine its action to injuries
occurring when the particular service in which the employee is engaged
is a part of interstate commerce.”

Whether in such a case a cause of action arises under the act depends upon
the circumstances existing at the time of the injury. If at the time of the
injury, the employee was performing some service for the company in fur-
therance of its interstate commerce the rules of law declared in the Act of
1908, and its amendment, will apply. Upon the other hand, if the employee,
when injured, is engaged wholly in the performance of a service in further-
ance of the intrastate business of the railroad company, then the act of
congress does not apply, because to give it application in such case would
be extending the power of the federal government over matters exclusively
within the state jurisdiction and control.?8

The act apparently does not require that the carrier and the injured em-
ployee should both be engaged in the same act of interstate business. Com-
merce between the states has many divisions and subdivisions, and, if the
carrier while engaged in doing one kind of interstate work should injure
an employee who is engaged in doing another kind of such work, the remedy
provided by the act appears to be available.2® Nor is it essential that the
agency or employee inflicting the injury, or through whose negligence it
came about should have been employed in interstate commerce.??

25. Illinois Cent. R. Co. v. Behrens,
233 U. S. 473, 58 L. Ed. 1051, 34 S.
Ct. 646, Ann. Cas. 1914C, 163.

26. Immaterial that carrier and em-
ployee were also engaged in intrastate
commerce at time of injury.—Central
R. Co. v. Colasurdo, 113 C. C. A. 379,
192 Fed. 901, 903, affirming 180 Fed.
832; Kelley v. Great Northern R. Co.
(C. C.), 152 Fed. 211.

27. Not applicable to same person
in all details of his employment.—
Colasurdo v. Central Railroad (C. C.),
180 Fed. 832, 837, affirmed in 113 C.

C. A. 379, 192 Fed. 901; Illinois Cent.
R. Co. v. Behrens, 233 U. S. 473, 58 L.
Fd. 1051, 34 S. Ct. 646, Ann. Cas.
1914C, 163.

28. Applicability of act dependent
upon circumstances existing at time
of¢ injury—Van Brimmer v. Texas,
etc., R. Co. (C. C.), 190 Fed. 394.

29. Not necessary that carrier and
employee should have been engaged
in same act.—Pedersen v. Delaware,
etc, Railroad (C. C.), 184 Fed. 737,
739, reversed on other grounds, 229
U. S. 146, 33 S. Ct. 648.
§ 13

FEDERAL EMPLOYERS LIABILITY ACT. 20

§ 13. Necessity of Existence of Relation of Employer and Em-
ployee.—The act also is confined in its application only to cases where the
relation of employer and employee exist.21._ Thus the act would not govern

30. Status of agency or employee
inflicting injury—United States.—Sec-
ond Employers’ Liability Cases, 223
U. S. 1, 51, 56 L. Ed. 327, 346, 32
S. Ct. 169, 38 L. R. A., N. S., 44; Pe-
derson v. Delaware, etc., R. Co., 229
U. S. 146, 57 L. Ed. 1125, 33 S. Ct.
648, Ann. Cas. 1914C, 153. Mr. Jus-
tice Lamar, dissenting; Lamphere v.
Oregon R., etc., Co., 116 C. C. A. 156,
196 Fed. 336, 340; El Paso, etc., R.
Co. v. Gutierrez, 215 U. S. 87, 54 L.
Ed. 106, 30 S. Ct. 21; Colasurdo v.
Central Railroad (C. C.), 180 Fed. 832,
affirmed 113 C. C. A. 379, 192 Fed.
901; Watson wv. St. Louis, etc., R. Co.
(C. C.), 169 Fed. 942.

Indiana.—Pittsburgh, etc., R. Co. v.
Farmers’ Trust, etc, Co. (Ind.), 108
N. E. 108.

Kentucky—Louisville, etc., R. Co. v.
Walker, 162 Ky. 209, 172 S. W. 517.

Minnesota. —Crandall v. Chicago,
etc., R. (Co., 127 Minn. 498, 150 N. W.
165. >

New Jersey—Grybowski v. Erie R.
Co. (N. J.), 95 Atl. 764.

Washington—Horton — v.
Washington R., etc., Co.,
503, 130 Pac. 897.

It is not necessary that the instru-
mentality by which plaintiff was in-
jured or killed was one used in in-
terstate commerce. So evidence that
an engine was so used is unnecessary
to sustain an action under the act.
Pittsburgh, etc, R. Co. v. Farmers’
Trust, etc, Co. (Ind.), 108 N. E. 108.

See Hall v. Chicago, etc. R. Co.
(C. C.), 149 Fed. 564, 567, decided un-
der the act of 1906, in which it is said:
“Whether or not the train was a local
one operating between points in Iowa
only is not alleged. But this does not
‘seem to be important, for under this
act it is the interstate character of
the carrier. rather than the particular
employment in which the employee
may be engaged, that is controlling.”

Contra.—Illinois Cent. R. Co. wv.
Rogers, 136 C. C. A. 530, 221 Fed. 52;
Granger v. Pennsylvania R. Co. (N.
J.), 86 Atl. 264, 265.

31. Relation of employer and em-
ployee.—United _States——Robinson °* v.
Baltimore, etc., R. Co., 237 U. S. 84, 35
S. Ct. 491; Chicago, etc. R. Co. v.
Wagener (U. S.), 36 S. Ct. 135.

Illinois —Wagner v. Chicago, etc., R.
Co., 265 Ill. 245, 106 N. E. 809, Ann.
Cas. 1916A, 778, affirmed in 36 S. Ct.
135.

Oregon-
72 Wash.

Iowa.—Dodge v. Chicago, etc, R.
Co., 164 Iowa 627, 146 N. W. 14; Pel-
ton v. Illinois Cent. R. Co. (Iowa),
150 N. W. 236, 239.

Kentucky—Kentucky, etc. R. Co. v.
\Minton, 167 Ky. 516, 180 S. W. 831.

Oklahoma.—Missouri, etc., R. Co. v.
West, 38 Okla. 581, 134 Pac. 655, dis-
missed for want of jurisdiction in 34
S. Ct. 471; Wachita, etc., Ry. Co. v.
Puckett (Okla.), 157 Pac. 112.

Texas—Ft. Worth Belt R. Co. v.
Perryman (Tex. Civ. App.), 158 5.
W. 1181, 1182, writ of error denied in
161 S. W. xv, no op.

Utah—Grow v. Oregon, etc., R. Co.,
44 Utah 160, 138 Pac. 398, Ann. Cas.
1915B, 481.

“Perryman suit

instituted this

‘against the Ft. Worth Belt Railway

Company and Swift & Co. to recover
damages for personal injuries received
by him while engaged in making cer-
tain repairs to the passageway or ves-
tibule of a doorway in one of the
buildings owned and _ occupied by
Swift & Co., whose employee he was.
* * * An exception was taken by
this appellant to the court’s ruling in
refusing to permit it to prove that the
car to which the vestibule on which
appellee was at work at the time of
the accident was attached was being
unloaded of freight which had come to
Ft. Worth from a point beyond the
state of Texas, and to show, in short,
that appellee at the time of the injury
was engaged in interstate commerce.
The ruling was right, however, since
the Federal Employers’ Liability Act
could have no application whatever to
this case in so far as it affects appel-
lant, because appellee was in no sense
an employee of this appellant; the act
applying only to cases of injuries to
or the death of employees of rail-
roads. Federal Statutes Anno. Sup-
plement 1909, p. 584 (U. S. Comp. St.
Supp. 1911, p. 1322).” Ft. Worth Belt
R. Co. v, Perryman (Tex. Civ. App.),
158 S. W. 1181, 1182, writ of error de-
nied in 161 S. W. xv, no op.

Where it was denied that plaintiff
was an employee at the time he re-
ceived his injury for the reason that
he was a regular member of a freight
crew and when called to operate an
extra passenger train his service was
unnecessary and unusual, the court
held on the evidence, that “The fact
that only one brakeman is usually
necessary for the operation of a pas-
21 NATURE AND SCOPE OF ACT. § 13
a case where the employee, and the employer, as well as another carrier, a
joint tort feasor with the employer, were all engaged in interstate commerce
but suit was only brought against the latter company by whom the plain-
tiff was not employed.??

The failure of congress to define the meaning that the words “employ-
ment” and “employee” should have in the application of the act, manifest
a purpose in this legislation that these words should be used in their ordi-
nary sense and be interpreted according to their usage in the law of master
and servant.33 However, at times, during the period of an engagement, the
employee may sustain to the employer no other relation than that of
stranger. It does not follow from this, that the employee is to be deemed
in the employer’s service only when he is actually engaged in labor. He is
to be deemed in the master’s service whenever present to perform his duty un-
der the contract creating the relation of master and servant and subject to or-
ders, although at a given moment he may not be engaged in the actual per-
formance of any labor.84 And the relation of master and servant, in so
far as the obligation of the master to protect his servant is concerned, com-
mences when the servant, in purstiance with his contract, is rightfully and

necessarily upon the premises of the master.%5

senger train, or that there was no
pressing need for more than one
brakeman for this particular train, is
not a controlling fact. If the plain-
tiff was ordered by the directing offi-
cers of the corporation to the opera-
tion of this train as a member of Em-
ory’s crew, and if he boarded the train
in obedience to stich order, we see no
room to claim that he was not em-
ployed in its operation, whether his
duties thereon were many or few.
That the defendant so regarded him
is indicated by the further fact that
it paid him for the run in precisely
the same manner that it paid the other
members of the crew. We _ hold,
therefore, that the defendant was not
entitled to a directed verdict on the
ground here considered.” Pelton v.
Illinois Cent. R. Co. (Iowa), 150 N.
W. 236, 239.

See Bogart v. New York, etc, R.
Co. (App. Div.), 157 N. Y. S. 420,
where a railroad company is held not
to be liable to a joint employee of the
railroad and an express company while
he was performing a duty solely for
the express company.’

32. Chicago, etc., R. Co. v. Wagner
239 U.S. 452, 36 S. Ct. 135.

33. General law of master and serv-
ant determines existence of relation —
Louisville, etc., R. Co. v. Walker, 162
Ky. 209, 172 S. W. 517.

34. Missouri, etc. R. Co. v. Rentz
(Tex. Civ. App.), 162 S. W. 959, 960,

writ of error denied in 163 S. W. xv,

no op.

35. Philadelphia, etc, R. Co. w.
Tucker, 35 App. D. C. 123; Neil vw.
Idaho, etc., Railroad, 22 Idaho 74, 125
Pac. 331.

In El Paso, etc, Co. v. La Londe
(Tex.), 184 S. W. 498, while concur-
ring in the refusal of a writ of error,
Justice Hawkins points out that the
relation of employer and employee
can not be held to exist when at the
time an engineer was injured he was
“off duty,” but “subject to call” and
his hours of rest having expired he
was “waiting to be called” when nec-
essary for him to take out a train.
“While so ,waiting, and shortly after
noon, which was about an hour and
a half before the usual time for him
to take a train out, he left his home
and went to the post office, and thence
to the railroad yard to see a friend
who was engineer on an out-going
train, to whom he desired to hand
money to pay off a note in another
town. As his friend walked around
his engine La Londe walked and
chatted with him, and, while so occu-
pied, stepped back in front of an in-
coming train, which struck him, in-
flicting injuries from which he died.
La Londe was there as a mere loiterer
or bystander, and there is no evidence
which even suggests that he was in
the yards for any purpose which was
in any wise related to the call for
§ 13 FEDERAL EMPLOYERS LIABILITY ACT. 22

The relation of master and servant between a railroad company and one
of its trainmen does not necessarily terminate the instant the train reaches
its destination on the company’s yards, or the servant ceases to labor, but
continues for a reasonable time thereafter to enable such employee to wash
himself and change his soiled clothing, in the caboose provided with the con-
veniences therefor, before going to his lodging place; such being the custom
of trainmen.36

It is a generally recognized rule that a railroad employee while being car-
ried to and from his work on the cars of his employer is to be treated as
being in the employment of the company to the same extent as if actually
engaged in the work for which he is employed. Accordingly, if he is injured
by the negligence of the company while being thus carried to or from his
work, his right of recovery is controlled by the same principle that would
control if he had been injured while actually engaged at his work.37 Now
if it be a sound rule that an employee who is injured by the negligence of
his employer while being carried to or from this work on an instrumentality
furnished by the employer for that purpose has a right of action against
the employer, there is no good reason why an employee who is injured by
the negligence of the employer while walking to or from his work on the
premises of the employer, and in a place selected or set apart either by di-
rection or by well-established custom or usage, should not have the same
right of recovery as if he had been injured by the negligence of the em-
ployer when being carried by it to or from his work. The right of the em-
ployee and the liability of the employer does not depend upon the means
used by the employee in going to and from his work, but upon the question
whether, in going to and from it, he remains on the premises of the em-
ployer and uses the place or the means selected or designated by the em-
ployer, or established by usage and custom, as a means of ingress and egress
to and from his work. The employer in a case like this owes the employee
the duty of furnishing him on its premises a reasonably safe place of ingress
and egress to and from his work, and this duty is neither added to nor
diminished by the fact that the employee rides or walks. Whether he does

which he was waiting, or to any duty
which he owed to the company by vir-
tue of his said employment.”

36. Employee making toilet after
end of run.—Easter v. Virginia R. Co.
(W. Va.), 86 S. E. 37.

What is a reasonable time is gen-
erally a question of fact for the jury
to determine under the facts and circum-
stances of the particular case; but,
when there is no evidence tending to
prove the time reasonably required
for a trainman to make his toilet, pre-
paratory to leaving the train for his
lodging place, and his evidence proves
that he consumed no more time than
was required for that purpose, the

fact that about one hour had elapsed
between the arrival of the train and
the accident does not warrant the in-
ference that the time was unreasona-
ble; and the giving of an instruction
which assumes the existence of the re-
lation of master and servant at the
time of the accident is not reversible
error, when in view of the estab-
lished facts, it can not be said, as mat-
ter of law, that an hour was unrea-
sonable time. Easter v. Virginia R.
Co. (W. Va.), 86 S. E. 37.

37. Transportation to and from
work by company.—Louisville, etc., R.
Co. v. Walker, 162 Ky. 209, 172 S. W.
517.
23 NATURE AND SCOPE OF ACT. § 13
one or the other, the protection afforded him is the same, and the duty and
liability of the employer identical. The doctrine of safe places and safe
premises and safe instrumentalities in this class of cases is rested on the
rule of general application that the employer is under a duty to exercise
ordinary care to protect the employee from danger, not only while he is
actually engaged at his work, but while he is on the premises of the em-
ployer in going to and from his work along the way set apart by the em-
ployer for this purpose. There seems no room or reason for the assertion,
that the duty of the employer ends the moment the day’s work is over, or
that, when the employee is on his way home on the premises of the em-
ployer and going over the way appointed for the purpose, he forfeits his
right to the protection afforded employees while engaged in work and takes
all the risk of harm that may come to him from the negligence of the em-
ployer.38

But an employee when the service in which he had been engaged had
ended upon his arrival at the station, when he left his train and registered,
and he had gone upon a locomotive to ride towards his home, or for some
purpose entirely without connection with the operation of the train or with
any other service by him to the company, the relation of master and servant
did not exist at the time.3®

A student brakeman was held an employee although there was nothing in
the contract indicating that as such he was to render any service whatever
for defendant, but the testimony conclusively showed that he was expected
to perform, and did perform, such tasks as were assigned him by the mem-
bers of the crew in charge of the train.4°

But the employer is not liable to a mere volunteer who undertakes with-
out request and without his knowledge to assist a servant, and who is in-
jured in consequence thereof. And a mere hostler in virtue of his position
has no implied authority to call assistance to his aid in the absence of an
emergency or a showing of implied authority.*?

The service must also be within the scope of the employment. But an
employee who halted in his journey to his place of work, to engage in con-
versation with other employees, when he does not materially turn aside from
his employment, does not thereby cease to be within the scope of his em-
ployment and voluntarily suspend the relation of employer and employee.*?

38. Same—Rule when employee walk-
ing.— Louisville, etc, R. Co. v. Wal-
ker, 162 Ky. 209, 172 S. W. 517.

39. Employee riding train after serv-
ice ended.—Dodge v. Chicago, etc., R.
Co., 164 Iowa 627, 146 N. W. 14.

40. Student brakeman. — Rief v.
Great Northern R. Co., 126 Minn. 430,
148 N. W. 309.

Designation of the rank of an em-
ployee, as that of student fireman,
does not imply lack of duty, under his
contract of employment, to render his

employer active service in such capac-
ity, and his employment implies such

duty. Findley v. Coal, etc. R. Co.
(W. Va.). 87 S. E. 198.
41. Volunteers.——Byram v. Illinois

Cent. R. Co. (Iowa), 154 N. W. 1006,
1008.

42. Scope of employment—Stopping
on way to work.—Missouri, etc., :
Co. v. Rentz (Tex. Civ. App.), 162 S.
W. 959, 960, writ of error denied in
163 S. W. xv, no op.

The cases of Pedersen wv. Delaware,
§ 13 FEDERAL EMPLOYERS’ LIABILITY ‘ACT. 24

And a brakeman who was ordered by the conductor to go forward and act
as fireman while he himself took charge of the locomotive for the purpose
of allowing the regular engineer and fireman to go to the caboose and eat
their dinner, in the absence of any rule of the company prohibiting the con-
ductor from giving or a brakeman from obeying such an order, the con-
ductor had authority to order the plaintiff to act as fireman, and in obeying
such order the plaintiff was acting within the scope of his employment.**
But a fireman whose duty it was to take charge of an engine after it had been
removed from the roundhouse, turned around on the turntable if necessary,
and placed on a track ready for the trip, is not within the scope of his em-
ployment when injured while attempting to latch the turntable at the request
of a hostler when the engine was being turned around.** That an employee
may have acted imprudently, or negligently, or contrary even to some rule
provided for his governance, did not necessarily bar a recovery under the
federal statute, nor put him without the line and scope of his employment.
It is possible, of course, that an employee, in the use of an engine, may have
departed entirely from his employment, and in such case defendant would
not have been liable to him as an employee, but where there was no evidence
to sustain such a theory, the mere fact that he was operating his engine at
a high rate of speed was no evidence that he had wholly quit the purposes
of his employer#® Nor can an engineer be held to be outside of the scope
of his employment, from the fact that he disregarded, and in effect violated
a train order as actually communicated to him, when the order is not will-
fully violated.45+
In Spokane, etc., R. Co. v. Campbell, 36 S. Ct. 683, 689, the court said:

“To hold otherwise would have startling consequences. The running of
trains on telegraphic orders is an every day occurrence on every railroad
in the country. Thousands of cases occur every day and every night
where a failure by conductor or engineer to comprehend or to remem-
ber the message of the train despatcher may endanger the lives of em-
ployees and passengers. We are not aware that in any case it has been

etc, R. Co. 229 U. S. 146, 57 L. Ed. 44, Same—Assisting other employee.

Illinois Cent. R. Co.

1125, 33 S. Ct. 648, Ann. Cas. 1914C,
153; St. Louis, etc. R. Co. v. Seale,
229 U. S. 156, 57 L. Ed. 1129, 33 S.
Ct. 651, Ann, Cas. 1914C, 156, and
North Carolina R. Co. v. Zachary, 232
Uz. S. 248, 58 L. Ed. 591, 34 S. Ct. 305,
Ann. Cas. 1914C, 159, do not announce
the doctrine that all that is necessary
to be shown to recover under the act
is that an employee was injured while
engaged in interstate commerce, no
matter whether in the course of his
employment or not. Byram v. Illinois
Cent. R. Co. (Iowa), 154 N. W. 1006,
1008.

43. Same—Brakeman acting as fire-
man on order of conductor.—Martin
v. Atchison, etc., R. Co., 93 Kan. 681,
145 Pac. 849.

—Byram vw,
(Iowa), 154 N. W. 1006.

45. Same—Imprudent or negligent
acts of employee.—Louisville, etc., R.
Co. v. Fleming (Ala.), 69 So. 125, 129.

Same — As question for jury. —
Whether a_ division road master,
whose duties were to look after a
track, to see that it was kept in a
safe condition for travel, was within
the scope of his employment while in-
specting repairs which he had ordered
the conductor of a freight train to
make on the brake beam of a caboose,
is for the jury. Lynch v. Central Ver-
mont R. Co. (Vt.), 95 Atl. 683.

45a. Same—Acts in violation of or-
ders.—Spokane, etc., R. Co. v. Camp-

‘bell, 36 S. Ct. 683.
ti
on

NATURE AND SCOPE OF ACT. § 13

seriously contended that because an engineer violated the orders, he went
outside of the scope of the employment. If he did so, in the sense of
absolving the employer from the duty of exercising care for his safety,
it is not easy to see upon what principle the employers’ liability to pas-
sengers or to fellow employees for the consequences of his negligence
could be maintained. The unsoundness of the contention is so appar-
ent that further discussion is unnecessary.”

One working as an independent contractor could not maintain an action
under the act. So a railroad being sued for injuries inflicted upon one who
had charge of their coal chutes contended that he was not an employee but
was working as an independent contractor. The contract provided that at
his own cost but for no specific time he was to furnish all labor necessary
to handle the coal required by the company at the chutes, to pick up such
as was dropped on the track, to have it all broken into certain dimen-
sions, to be punctual in his duties, provide sufficient men for the work, not
to delay the company and that the company would not be liable for death
or injury. It also provided that the failure or neglect to perform the con-
tract the company could terminate the same without liability and that they
were the sole judges of its proper performance. All tools were furnished by
the company and a special provision was made that he was held as an original
contractor and the only control of the company was as to the results being
accomplished. In settlement he kept a record of cars unloaded and received
tickets for coal delivered to engines upon which his pay was based. The
court held that this contract showed him to be an independent contractor
and not an employee capable of suing under the act.#® As these questions
arise with regard to the validity of contracts exempting the employer from
liability,#7 and the courts have discussed them also from the view of whether
or not such employee is engaged in interstate commerce*® rather than the
scope of employment, they are there respecting such questions also consid-
ered.

46. Independent contractor. — Chi- 48. See post, “Employer and Em-
cago, etc., R. Co. v. Bond (U. S.), 36 ployee Engaged in Interstate Com-
S. ‘Ct. 403, reversing 148 Pac. 103. merce,’ Chap. VII.

47. See post, “Agreements in Con-
travention of Act,” Chap. VI.
CHAPTER IV.

CoNSTITUTIONALITY OF ACT.

. Generally, § 14.

As Encroaching upon State Powers, Regulating Intrastate Commerce, etc., § 15.
As a Deprivation of Liberty or Property without Due Process of Law, § 16.
. Equal Protection of the Laws—Arbitrary Classification, § 17.

. Rights, Privileges and Immunities of Citizenship, § 18.

. Who May Raise Constitutional Questions, § 19.

Onrwone

§ 14. Generally.—From the standpoint of power in congress under the
interstate commerce clause of the constitution to deal with the relation of
master and servant as between those carriers engaged in interstate commerce
and those of their employees engaged in the same commerce, and to regulate
the liability of the former for personal injuries sustained by the latter while
both are engaged in that commerce, there can be no question as to the entire
constitutionality of the Act of April 22, 1908, since the authoritative utter-
ance of the Federal Supreme Court in the Second Employers’ Liability
Cases,! which is recognized as final.?

Prior to this decision, the constitutionality of the act as a valid exercise
of the power to regulate interstate commerce had been maintained by a num-
ber of decisions rendered in the lower federal courts, and in the state courts
of last resort.2 And even the first act of June 11, 1906, which was after-
wards declared to be an unwarranted interference with intrastate commerce,
was held by numerous decisions not to be obnoxious in this respect.4

§ 15. As Encroaching upon State Powers, Regulating Intrastate
Commerce, etc.—The original act of June 11, 1906, was declared invalid

1. Constitutionality of act generally.
—Second Employers’ Liability Cases,
223 U. S. 1, 56 L. Ed. 327, 32 S. Ct.
169, 38 L. R. A, N. S., 44, reversing
82 Conn. 373, 73 Atl. 762, affirming
Walsh v. New York, etc. R. Co. (C.
C.), 173 Fed. 494.

2. Fleming v. Norfolk, etc., R. Co.,
160 N. C. 196, 76 S. E. 212; Lloyd v.
North Carolina R. Co., 162 N. C. 485,
78 S. E. 489.

3. United States—St. Louis, etc., R.
Co. v. Conley, 110 C. C. A. 97, 187 Fed.
949; Zikos v. Oregon R., etc., Co. (C.
C.), 179 Fed. 893, 904; Walsh v. New
York, etc, R. Co. (C. C.), 173 Fed.
494,

Minnesota——Owens v. Chicago, etc.,
R. Co., 113 Minn. 49, 128 N. W. 1011.

Wisconsin.—State v. Chicago, etc.,

R. Co., 136 Wis. 407, 117 N. W. 686,
19 L. R.A, N.S. 326.

4. Same—Act of June 11, 1906.—
The Employers’ Liability Cases, 207 U.
S. 463, 52 L. Ed. 297, 308, 28 S. Ct. 141;
Snead v. Central, etc., R. Co. (C. C.),
151 Fed. 608; Spain v. St. Louis, etc.,
R. Co. (C. C.), 151 Fed. 522; Kel-
ley v. Great Northern R. Co. (C. C.),
152 Fed. 211; Plummer v. Northern
Pac. R. Co. (C. C.), 152 Fed. 206;
Lancer v. Anchor Line (D. C.), 155
Fed. 433.

Contra.—Howard v. Illinois, etc., R.
Co. (C. €.), 148 Fed. 997; Brooks v.
Southern Pac. Co. (C. C.), 148 Fed.
986; Hoxie v. New York, etc., R. Co.,
82 Conn. 352, 73 Atl. 754, 17 Am. &
Eng. Ann. Cas. 324, followed in Mon-
dou v. New York, etc, R. Co. 82
Conn. 373, 73 Atl. 762.
27 CONSTITUTIONALITY OF ACT. § 15
in the first Employers’ Liability Cases because not confined in its operation
to interstate carriers and their employees while engaged in interstate com-
merce.® It is true that the opinion in that case was rendered by a greatly
divided court. The division of opinion only extended, however, to the
proper construction of the act, the majority being of the opinion that the
act applied to all the employees and to the entire business of common car-
riers engaged in interstate transportation, even in part, and without regard
to the nature of the business, as interstate or intrastate, which was being
done at the time the injury was sustained; while the minority were of the
opinion that, properly construed, the act did not embrace liability for any
injuries other than those sustained by the employees of interstate carriers
and while engaged in interstate commerce. But while the court was not
united upon the proper construction of the act, all the justices were united
upon the proposition that, if the construction announced by the majority was
correct, and if the act did apply to all common carriers whose business was
interstate commerce in whole or in part, without regard to the nature of the
business that was being done at the time the injury was sustained, the legis-
lation would necessarily include intrastate business, and would therefore
transcend the power of congress. And while it was intimated in that case
that the valid and invalid portions of the act were so interblended that the
whole must fail, it was afterwards held that its invalidity, so far as inter-
state commerce was concerned, did not invalidate such of its provisions as
attempted to regulate commerce within the District of Columbia and the
territories.’ Even though such a railroad is doing an interstate business,

5. As a regulation of intrastate com-
merce—Encroachment upon state pow-
ers; Act of June 11, 1906——Employ-
ers’ Liability Cases, 207 U. S. 463, 52
L. Ed. 297, 28 S. Ct. 141.

Previous to this decision, the valid-
ity of the act, as not being obnoxious
to the objection that it was an en-
croachment upon the domain of state
powers and an attempt to regulate in-
trastate commerce, had been main-
tained by the following cases: Spain
v. St. Louis, etc., R. Co. (C. C.), 151
Fed. 522; Snead v. Central, etc, R.
Co. (C. C.), 151 Fed. 608; Plummer v.
Northern Pac. R. Co. (C. C.), 152 Fed.
206; Kelley v. Great Northern R. Co.
(C. C.), 152 Fed. 211.

Contra.—Brooks v. Southern Pac.
Co. (C. C.), 148 Fed. 986; Howard w.
Illinois, etc., R. Co. (C. C.), 148 Fed.
997; Atchison, etc, R. Co. v. Mills, 49
Tex. Civ. App. 349, 108 S. W. 480.

6. Employers’ Liability Cases, 207
U. S. 463, 52 L. Ed. 297, 28 S. Ct.
141; Pedersen v. Delaware, éetc., R.
Co. (C. C.), 184 Fed. 737, 738.

7, As to commerce in the District
of Columbia and the territories. —
United States—El Paso, etc., R. Co. v.

Gutierrez, 215 U. S. 87, 54 L. Ed. 106,
30 S. Ct. 21; Washington, etc., R. Co.
v. Downey, 236 U. S. 190, 35 S. Ct.
406; Philadelphia, etc, R. Co. uw.
Tucker, 35 App. D. C. 123; Washing-
ton R. Co. v. Downey, 40 App. D. C.
147; McNamara v. Washington Termi-
nal Co., 35 App. D. C. 230; Hyde v.
Southern R. Co., 31 App. D. C. 466;
McNamara v. Washington Terminal
Co., 37 App. D. C. 384.

New Mexico—Friday v. Santa Fe
Cent. R. Co., 16 N. Mex. 434, 120 Pac.
316.

Oklahoma.—Chicago, etc., R. Co. v.
Holliday (Okla.), 145 Pac. 786.

Texas —Missouri, etc., R. Co. v. Rog-
ers (Tex. Civ. App.), 128 S. W. 711.
But see Atchison, etc., R. Co. v. Mills,
49 Tex. Civ. App. 349, 108 S. W. 480.

The first employers’ liability act is
still in operation as far as the District
of Columbia and the territories are
concerned and an action may be main-
tained thereunder. Washington, etc.,
R. Co. v. Downey, 236 U. S. 190, 35
S. Ct. 406.

“Again,

Act Cong. June 11, 1906,
xk Ok Ok

known as the ‘employers’ lia-
§ 15

FEDERAL EMPLOYERS LIABILITY ACT. 28

and its line runs outside of the District of Columbia.$

The present act of April 22, 1908, was drawn to meet the objection on
which the first act was held to be invalid, and that it does not perpetuate the
infirmities which rendered that act unconstitutional, but is a valid exercise
of the power vested in congress, properly restricted to interstate carriers and
their employees, and applicable only to those cases in which the employee
was engaged in interstate commerce at the time the injury was sustained, is
conclusively settled by the decision of the Federal Supreme Court in’ the
Second Employers’ Liability Cases.°

It may be well to mention in this connection a point that has been fully
gone into in a preceding chapter, namely, that it is not a valid objection that
the act embraces instances where the causal negligence is that of an em-
ployee engaged in intrastate commerce; for such negligence, when operat-
ing injuriously upon an employee engaged in interstate commerce, has the
same effect upon that commerce as if the negligent employee were also
engaged therein, and the act is not to be invalidated because of this incidental

and unavoidable effect upon intrastate transportation.1°

When considering the power of congress to regulate, and the application

bility act,’ was in force in the Indian
Territory at the time appellee was in-
jured. Under it appellant is liable for

the negligence of its section foreman.

and section hands, whose duty it was
to construct and maintain in proper
repair the platform where appellee was
injured.” Missouri, etc, R. Co. v.
Rogers (Tex. Civ. App.), 128 S. W.
711. See ante, “In the District of Co-
lumbia, Territories and Places under
Exclusive Federal Control,” § 4.

8. Washington R. Co. v. Downey, 40
App. D. C. 147.

9. Present act not invalid as attempt-
ing to regulate intrastate commerce.—
Second Employers’ Liability Cases,
223 U. S. 1, 56 L.Ed. 327, 32 S. Ct.
169, 38 L. R. A, N. S., 44.

This decision reversed the decision
of the supreme court of Errors of
Connecticut in Hoxie v. New York,
etc., R. Co., 82 Conn. 352, 73 Atl. 754,
17 Am. & Eng. Ann. Cas. 324, followed
in Mondou v. New York, etc., R. Co.,
82 Conn. 373, 73 Atl. 762, in which it
was held that the act was unconsti-
tutional, not only in that it attempted
to regulate intrastate commerce, but
upon the further ground that the
whole subject was one outside the
power conferred upon congress by the
interstate commerce clause of the con-
stitution; that the provision forbid-
ding contracts, rules and regulations
exempting carriers from the liabilities
imposed by the act was opposed to
the due process clause of the Fifth

Amendment; and that the provisions
with respect to the distribution of the
damages 1ecoverable, being inconsist-
ent with the laws of the several states
as to the devolution of the estates of
deceased persons, was unconstitutional
as an invasion of the right of the
states to legislate upon that question
and to prescribe the duties of execu-
tors and administrators.

Other cases sustaining the validity
of the act on this point are as fol-
lows: Zikos v. Oregon R., etc., Co.
(C. C.), 179 Fed..893; Pedersen v. Del-
aware, etc. R. Co. (C. C.), 184 Fed.
737, 738; Watson v. St. Louis, etc., R.
Co. (C, C.), 169 Fed. 942; Taylor v.
Southern R. Co. (C. C.), 178 Fed. 380,
382; Cain v. Southern R. Co. (C. C.),
199 Fed. 211.

10. Same—Where injury results
from negligence of agency or em-
ployee engaged in intrastate com-
merce.—Second Employers’ Liability
Cases, 223 U. S. 1, 56 L. Ed. 327, 32 S.
Ct. 169, 38 L. R. A. N. S., 44; The
Employers’ Liability Cases, 207 U. S.
463, 52 L. Ed. 297, 28 S. Ct. 141; El
Paso, etc., R. Co. v. Gutierrez, 215 U.
S. 87, 54 L. Ed. 106, 30 S. Ct. 21; Wat-
son v. St. Louis, etc, R. Co. (C. CG),
169 Fed. 942. See, also, Zikos v. Or-
egon R., etc., Co. (C. C.), 179 Fed.
893, in ‘which it was held that this
point did not properly arise in the case,
and that even if the statute should be
held obnoxious in this respect, it was
separable and valid in other respects.
29 CONSTITUTIONALITY OF ACT. § 15
of the act to, employees engaged indiscriminately in interstate and intrastate
commerce,!! in Illinois Cent. R. Co. v. Behrens, 233 U. S. 473, 58 L. Ed.
1051, 34 S. Ct. 646, 647, Ann. Cas. 1914, 163, the court said:

“Considering the status of the railroad as a highway for both interstate
and intrastate commerce, the interdependence of the two classes of
traffic in point of movement and safety, the practical difficulty in sepa-
rating or dividing the general work of the switching crew, and the na-
ture and extent of the power confided to congress by the commerce
clause of the constitution, we entertain no doubt that the liability of the
carrier for injuries suffered by a member of the crew in the course of
its general work was subject to regulation by congress, whether the
particular service being performed at the time of the injury, isolatedly
considered, was in interstate or intrastate commerce.”

Neither is the act objectionable because of inconsistencies, discriminations,
and conflicts between state and federal authority, regarding the accountabil-
ity of employers to employees for negligence, and in case of death the
designation of different parties who shall be entitled to recover. All these
objections rest upon that which, when followed to an ultimate conclusion,
would deny the power of congress to regulate those acts which do in fact
include interstate commerce within the state, and it would exclude the ex-
tension of its authority across state lines and render it null and void within
the borders of a state, while the contrary rule has been repeatedly laid down.
As to the designation of those who may succeed to the rights of deceased
persons, if congress may legislate in the exercise of its powers over inter-
state commerce regarding employees at all, as we have seen that it may, cer-
tainly it is competent and incidentally incumbent upon it to declare who shall
be entitled to recover in case of the death of an employee. If this interferes
with the administration of estates, which may well be doubted, it is because
congress has plenary power over the subject. It is denying nothing to the
states, for the regulation of the subject is wholly with the federal govern-
ment. If it is interstate commerce, then state authority is. excluded because
it is so.1?

Nor can it be said that it involves an interference by congress with the
distribution of an estate through the probate court of the state. The cause
of action was created by congress in the exercise of its power to regulate
commerce among the several states, and it is elementary that in doing so it
might determine who was entitled to maintain the same and for whose bene-
fit. The administrator is not required thereby to institute proceedings; he
may do so, and in that event can recover only for the benefit of the person

11. Employees engaged in both in-
terstate and intrastate commerce.—
Illinois Cent. R. Co. v. Behrens, 233 U.
S. 473, 5 L. Ed. 1051, 34 S. Ct. 646,
Ann. Cas. 1914, C 163.

12. Same—As establishing different

rule and measure of liability from that
existing under state law.—Zikos v.
Oregon R., etc., Co. (C. C.), 179 Fed.
893; Second Employers’ Liability
Cases, 223 U. S. 1, 56 L. Ed. 327, 32
S. Ct. 169, 38 L. R. A, N.S, 44.
8§ 15-17 FEDERAL EMPLOYERS’ LIABILITY ACT. 30

entitled under the act to the damages.1*

§ 16. As a Deprivation of Liberty or Property without Due Pro-
cess of Law.—Long ago, in the Legal Tender Cases,'4 it was settled that
the due process clause of the Fifth Amendment must be understood as re-
ferring only to a direct appropriation, and not to consequential injuries re-
sulting from the exercise of lawful power, and that it does not inhibit, and
has no bearing upon, laws that indirectly work harm and loss to individuals.
Upon the same principle, it is held that neither the Act of June 11, 1906,
nor the Act of April 22, 1908, is obnoxious to the due process clause of the
Fifth Amendment, either in their general operation and effect; 15 or by rea-
son of the effect of any special provision, such as that prohibiting any con-
tract, rule, regulation, or device exempting the railroad company from the
liability created by the act, whether considered with reference to future or
existing contracts, rules and regulations;?® or by reason of the changes
made in the existing rules of law with respect to fellow servants, contribu-
tory negligence, assumption of risk and the right to recover where the in-
jury results in death, since there can, generally speaking, be no property or
vested right in any rule of the common law.17

§ 17. Equal Protection of the Laws—Arbitrary Classification.—In
answering the contention that the Act of April 22, 1908, makes an unreason-
able and arbitrary discrimination and operates to deny the equal protection
of the law, it might have been sufficient for the court to have simply stated
that the equal protection clause, upon which such objection was based, is

13. Same—As interfering with state
powers with regard to distribution of
estates.—Bradbury v. Chicago, etc., R.
Co., 149 Iowa 51, 128 N. W. 1, 40 L.
R. A., N. S., 684. See, also, Taylor v.
Taylor, 232 U. S. 363, 34 S. Ct. 350.

14. 12 Wall. 457, 549, 551, 20 L. Ed.
287.

15. As a deprivation of liberty or
property without due process of law.
—Second Employers’ Liability Cases,
223 U. S&S. 1, 56 L. Ed. 327, 32 S. Ct.
169, 38 L. R. A, N. S., 44 (revers-
ing 82 Conn. 352, 73 Atl. 754); Wat-
son v. St. Louis, ete, R. Co. (C.
C.), 169 Fed. 942, 948; Missouri
Pacific R. Co. v. Mackey, 127 U. S.
205, 32 L. Ed. 107, 8 S. Ct. 1161; Snead
v. Central, etc, R. Co. (C. C.), 151
Fed. 608; St. Louis, etc., R. Co. vw.
Conley, 110 C. C. A. 97, 187 Fed. 949;
The Employers’ Liability Cases, 207
U. S. 463, 52 L. Ed. 297, 28 S. Ct. 141,
affirming 148 Fed. 986, 997; Pittsburgh,
etc., R. Co. v. Farmers’ Trust, etc., Co.
(Ind.), 108 N. E. 108.

16. Same — Provision prohibiting
contract, rule, regulation or device in-
tended to defeat operation of act.—
Second Employers’ Liability Cases,

223 U. S. 1. 56 L. Ed. 327, 32 S. Ct.
169, 38 L. R. A, N. S., 44 (revers-
ing 82 Conn. 373, 73 Atl 754, 762,
and affirming 173 Fed. 494); Phila-
delphia, etc, R. Co. wv. Schubert,
224 U. S. 603, 56 L. Ed. 911, 32 S. Ct.
589; Oliver v. Northern Pac. R. Co.
(D. C.), 196 Fed. 432, 434; Malloy v.
Northern Pac. R. Co. (C. C.), 151 Fed.
1019, 1020; Zikos v. Oregon R., etc.,
Co. (C. C.),°179 Fed. 893; Watson vw.
St. Louis, etc., R. Co. (C. C.), 169 Fed.
942, 948; St. Louis, etc., R. Co. v. Con-
ley, 110 C. C. A. 97, 187 Fed. 949.

The contention that the act violates
the Fifth, Seventh, Tenth, and Four-
teenth Amendments of the constitu-
tion is without merit. Kelley v. Great
Northern R. Co. (C. C.), 152 Fed. 211.

17. Same—Provisions changing rules
of law as to fellow servants, contrib-
utory negligence, and assumption of
risk. — Second Employers’ Liability
Cases, 223 U. S. 1, 56 L. Ed. 327, 32
S. Ct. 169, 38 L. R. A, N.S. 44 (re-
versing 82 Conn. 352, 73 Atl. 754);
Watson wv. St. Louis, etc. R. Co. (C.
C.), 169 Fed. 942, 948. citing Mining
Co. v. Fulton, 205 U. S. 60, 74, 51 L.
Fd. 708, 27 S. Ct. 412, 417.
31 CONSTITUTIONALITY OF ACT. §§ 17-18

found only in the Fourteenth Amendment, and is, in its terms, and by the
uniform decisions of the Federal Supreme Court, prohibitive of state action
only; but without resting its decision upon that ground, the court has held
that while it is true that the liability which the act creates is imposed only
on interstate carriers by railroad, although there are other interstate car-
riers, and is imposed for the benefit of all employees of such carriers by
railroad who are employed in interstate commerce, although some are not
subjected to the peculiar hazards incident to the operation of trains, or to
hazards that differ from those to which other employees in such commerce,
not within the act, are exposed; still it is not objectionable, as making an
arbitrary and unreasonable discrimination, even though it should be con-
ceded, which is not decided, that the principle embodied in the due process
of law guaranteed by the Fifth Amendment is broad enough to include, and
extends to the prohibition of, any arbitrary classification or discrimination
amounting to a denial of the equal protection of the laws.18

§ 18. Rights, Privileges and Immunities of Citizenship.—The same
observation might be made with regard to the contention that the act is in
violation of the principle expressed in that clause of the Fourteenth Amend-
ment which provides that no state shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States.
Besides, the privileges and immunities clause of the Fourteenth Amendment
as is well settled, only applies to those privileges and immunities ‘which
arise out of the nature and essential character of the national government,

18. Equal protection of the laws—
Arbitrary classification.—United States.
—Second Employers’ Liability Cases,
223 U. S. 1, 56 L. Ed. 327, 32 S. Ct.
169, 38 L. R. A., N. S., 44, reversing
82 Conn. 373, 73 Atl. 762, and affirming
173 Fed. 494.

To the same effect, see Missouri,
etc., R. Co. v. Mackey, 127 U. S. 205,
32 L. Ed. 107, 8 S. Ct. 1161; Minneap-
olis, etc., R. Co. v. Herrick, 127 U.
S. 210, 32 L. Ed. 109, 8 S. Ct. 1176;
Chicago, etc, R. Co. v. Pontius, 157
U. S. 209, 39 L. Ed. 675, 15 S. Ct. 585;
Employers’ Liability Cases, 207 U. S.
463, 503, 52 L. Ed. 297, 28 S. Ct. 141;
Zikos v. Oregon R., etc., Co. (C. C.),
179 Fed. 893, 904; Watson v. St. Louis,
etc., R. Co. (C. C.), 169 Fed. 942, 946.

Indiana—Pittsburgh, etc. R. Co. v.
Farmers’ Trust, etc. Co. (Ind.), 108
N. E. 108.

Texas.—Freeman v. Swan (Tex. Civ.
App.), 143 S. W. 724.

The contention was met in Watson
v. St. Louis, etc., R. Co. (C. C.), 169
Fed. 942, as follows: “In every in-
stance in which state statutes abolish-
ing or modifying the fellow-servant
rule and limiting the act to railroads

only, as in the act now under consid-
eration, have been attacked as being
in violation of the equal protection
clause of the Fourteenth Amendment,
the supreme court has overruled the
contention and sustained the validity
of the acts, declaring that such clas-
sification by the legislative department
is permissible and not within the pro-
hibition of that amendment.” Zikos
v. Oregon R., etc, Co. (C. C.), 179
Fed. 893.

A statute abolishing the fellow-
servant rule, limiting its application to
carriers by rail, is neither an arbitrary
nor unreasonable classification. Wat-
son v. St. Louis, etc., R. Co. (C. C.),
169 Fed. 942, 947; Missouri Pacific
R. Co. v. Mackey, 127 U. S. 206, 32
L. Ed. 107, 8 S. Ct. 1161; Minneapolis,
etc, R. Co. wv. Herrick, 127 U. S.
210, 32 L. Ed. 109, 8 S. Ct. 1176; Chi-
cago, etc, R. Co. v. Pontius, 157
U. S. 209, 39 L. Ed. 675, 15 S. Ct. 585;
Tullis 7. Lake Erie, etc, R. Co., 175
U. S. 348, 351, 44 L. Ed. 192, 20 S.
Ct. 136; St. Louis, etc., R. Co. uv. Cal-
lahan, 194 U. S. 628, 48 L. Ed. 1157, 24
Ss. ce 857.
§§ 18-19 FEDERAL EMPLOYERS LIABILITY ACT. 32

or are specifically granted or secured to all citizens or persons by the consti-
tution of the United States,” and not to those fundamental rights which
are inherent in and belong to all who live under a free government. These
latter privileges are “inherent in state citizenship, and are privileges or im-
munities of that citizenship only.’”!® This question was very learnedly dis-
cussed in the case of Twining v. New Jersey, in which Mr. Justice Moody
analytically reviews the previous decisions of the supreme court on that
subject.2°

§ 19. Who May Raise Constitutional Questions.—Under the old
act of June 11, 1906, where the plaintiff alleged that he was engaged at the
time of the accident on a train engaged in interstate commerce, it was held
that the defendant was within the general rule of law that courts will not
listen to an objection going to the constitutionality of an act by a party
whose rights it does not affect in the particular case on trial, and the point
would not be considered as to its validity affecting intrastate commerce.?!

19. Rights, privileges, and immuni-
ties of citizenship—Watson v. St.
Louis, ete, R. Co. (CG. C.), 169 Fed.
942, 946.

20. Twining v. New Jersey, 211 U.
S. 78, 97, 53 L. Ed. 97, 29 S. Ct. 14.

21. Who may raise constitutional
questions.—Spain v. St. Louis, etc., R.
Co. (C. C.), 151 Fed. 522.

Question raised on appeal.—The
contention that the construction placed

on the act renders it in conflict with
the state and federal constitutions,
will not be considered on appeal after
decision, when such contention had not
been presented during the hearing, nor
passed upon by the court, and the ef-
fect of sustaining it would be to oust
the court of jurisdiction. Hardwick v.
Wabash R. Co., 181 Mo. App. 156, 168
S. W. 328.
CHAPTER V.

CONSTRUCTION AND OPERATION OF ACT.

1. Construction of Act, §§ 20-22.

a. By What Courts Construed, § 20.

b. Penal or Remedial—Strict or Liberal, § 21.
c. Construction on Questions of Negligence of Fellow Servants, Assumption

of Risk, etc., § 22.
2. Operation of Act, §§ 23-28.

a. Prospective or Retroactive, § 23.

b. Exclusive or Controlling Operation of Federal Act, §§ 24-28.

(1) Superseding State Law, § 24.

(2) Exclusive Operation of State and Federal Law, § 25.
(3) As to Carriers and Employees While Engaged in Intrastate Com-

merce, § 26.

(4) Right to Recover under Either State or Federal Law—Pleading and

Proof, § 27.

(5) Controlling Over State Workmen’s Compensation Acts, § 28.

§§ 20-22. Construction of Act.—§ 20. By What Courts Con-
strued.—The decision of the United States’ Supreme Court upon the proper
interpretation, construction, and effect of statutes regulating or affecting in-
terstate and foreign commerce is conclusive upon all other tribunals when

the same matters are called in question.

And the decisions of the federal

courts, are to be followed by the state courts, in the construction of the

act.?

§ 21. Penal or Remedial—Strict or Liberal.—According to decis-
sions rendered in several of the federal courts, the Act of April 22, 1908,

1. Construction of act—By what
courts construed.—Rich v. St. Louis,
etc., R. Co., 166 Mo. App. 379, 148 S.
W. 1011; Vaughan v. St. Louis, etc.,
R. Co., 177 Mo. App. 155, 164 S. W.
144; Dooley v. Seaboard, etc, R. Co.,
163 N. C. 454, 79 S. E. 970.

Where the Federal Employers’ Lia-
bility Act of 1908, as amended in 1910,
in an action brought in the state courts
to recover damages for a wrongful
death, is set up and relied upon in the
state courts. The courts of the state
will follow the interpretation put upon
it by the Supreme Court of the United
States. Dooley v. Seaboard, etc. R.
Co., 163 N. C. 454, 79 S. E. 970.

2. United States—Southern Ry. Co.
v. Gray, 36 S. Ct. 559.

Iowa.—Armbruster v. Chicago, etc.,
R. Co., 166 Iowa 155, 147 N. W. 337.

Missouri. — Hawkins v. St. Louis,

Fed Act—3

etc. R. Co. (Mo. App.), 174 S. W. 129;
Newkirk v. Pryor (Mo. App.), 183 S.
W. 683.

Nebraska—Hadley v. Union Pac. R.
Co. (Neb.), 156 N. W. 765.

Oregon—Montgomery v. Southern
Pac. Co., 64 Ore. 597, 131 Pac. 507, 47
L. R. A. N.S. 13.

Washington—lLauer v. Northern Pac.
R. Co. (Wash.), 145 Pac. 606; Horton
v. Oregon-Washington R., etc., Co.,
72 Wash. 503, 130 Pac. 897.

“Therefore the decisions of the fed-
eral courts with respect to the con-
struction and operation of the act con-
trol. Sims v. Missouri Pac. R. Co.,
177 Mo. App. 18, 163 S. W. 275; McEI-
vain v. St. Louis, etc., R. Co., 176 Mo.
App. 379, 158 S. W. 464.” Hawkins
v. St. Louis, etc., R. Co. (Mo. App.),
174 S. W. 129, 131.

33
§§. 21-23 FEDERAL EMPLOYERS’ LIABILITY ACT. 34

particularly the first section thereof, being in derogation of the common
law, is to be confined to its plain meaning; in other words, it is to be strictly
construed, though not so strictly as to defeat the obvious intention of con-
gress as found in the language actually used according to its true and ob-
vious meaning.? Other courts, taking a more liberal view, hold that the
act, while in derogation of the common law, is remedial and not penal in
character, and should be liberally construed so as to prevent the mischief
and advance the remedy.* This was the view taken of the earlier act in
several decisions rendered thereunder,’ and beyond question it is supported
by the better reason. For while the act undoubtedly is in derogation of the
common law, yet, as stated in one case, the elimination of the doctrine
of fellow servants and the modification of the doctrines of contributory neg-
ligence and assumption of risk certainly makes for the betterment of human
rights as opposed to those of property, and in the light of modern thought
and opinion, the law should be as broadly and as liberally construed as pos-
sible.6 As we have heretofore seen, the act has been broadly construed, so as
to include within the scope of its operation every person whom congress
could constitutionally include.”

§ 22. Construction on Questions of Negligence, of Fellow Serv-
ants, Assumption of Risk, etc.—In determining who are fellow servants
within the meaning of the act, the federal courts follow the rule of the
Federal Supreme Court, and not the doctrines of the state courts.8 Like-
wise, the question whether the employer is negligent, the injured employee
assumed the risk, or is guilty of contributory negligence, is to be determined
by construction of the whole statute under the rules laid down by the Federal
Supreme Court.?

8§ 23-28. Operation of Act—§ 23. Prospective or Retroactive.
—While there are exceptions in the case of statutes intended to remedy a

3. Penal or remedial—Strict or lib-
eral.—Pedersen v. Delaware, etc., Rail-
road (C. C.), 184 Fed. 737, 739; Fulg-
ham v. Midland Valley R. Co. (C.
C.), 167 Fed. 660, 662, citing Johnson
v. Southern Pac. Co., 196 U. S. 1, 49
L. Ed. 363, 25 S. Ct. 158.

4. St. Louis, etc, R. Co. v. Conley,
110 C. C. A. 97, 187 Fed. 949; Behrens
v. Illinois, etc, R. Co. (D. C.), 192
Fed. 581, reversed on other grounds
34 S. Ct. 646; Anderson v. Louisville,
etc., R. Co. (C. C.), 210 Fed. 689. See
also, Long v. Lusk (Ark.), 186 S. W.
601.

5. Spain v. St. Louis, etc., R. Co. (C.
C.), 151 Fed. 522, 529, citing Johnson
v. Southern Pac. Co, 196 U. S. 1,
49 L. Ed. 363, 25 S. Ct. 158; Kelley
v. Great Northern R. Co. (C. C.), 152
Fed. 211 (distinguishing the Trade
Mark Cases, 100 U. S. 82, 25 L. Ea,

550, and Illinois, ete, R. Co. v. Mc-
Kendall, 203 U. S. 514, 51 L. Ed. 298,
27S. Ct. 153).

6. Behrens v. Illinois, etc., R. Co. (D.
C.), 192 Fed. 581, 582, reversed on
other grounds, 233 U. S. 473, 34 S. Ct.
646. :

7. Includes all persons whom con-
gress could constitutionally include.—
See ante, “Nature and Scope of Act,”
Chap. ITI.

8. Construction on questions of fel-
low servants, assumption of risk, etc.
—Zikos v. Oregon, etc, Nav. Co. (C.
C.), 179 Fed. 893, 895, citing Baltimore,
etc, R. Co. v. Baugh, 149 U. S. 368, 37
L. Ed. 772, 13 S. Ct. 914.

9. See post, “Negligence,” Chap.
VIII; “Contributory Negligence,”
cane: X; “Assumption of Risk,” Chap.
35 CONSTRUCTION AND OPERATION OF ACT. §§ 23-24

mischief, to promote public justice, to correct innocent mistakes, to cure ir-
regularities in judicial proceedings or to give effect to acts and contracts of
individuals according to the intention thereof, such are exceptions to the
almost universal rule that statutes are addressed to the future, not to the
past. Statutes usually constitute a new factor in the affairs and relations of
men and should not be held to affect what has happened unless, indeed, ex-
plicit words be used or by clear implication that construction be required.1°
As the Act of 1908 introduced a new policy and radically changed the ex-
isting law, permitting a recovery in cases where a recovery could not be had
before, and taking away from the defendant defenses which formerly were
available, the courts hold that it is prospective only in its operation, and
that the phrase “action hereafter brought,” as used in § 3, does not apply
to an alleged cause of action which accrued, before the enactment of the
statute.t?

The decision rendered under the Act of June 11, 1906, were to the same
effect.12 And also that the period of limitation in the later act would
not by any retroactive operation extend the period in the former.13

§§ 24-28. Exclusive or Controlling Operation of Federal Act—§
24, Superseding State Law.—The laws of the several states are deter-
minative of the liability of employees engaged in interstate commerce for
injuries received by their employees while engaged in such commerce so
long as congress, although empowered to regulate that subject, has not
acted thereon, because the subject is one which falls within the police power
of the states in the absence of action by congress.14 The inaction of con-
gress, however, in nowise affects its power over the subject, and where
congress has acted, the laws of the states, in so far as they cover the same

10. Operation—Prospective or re- 14, Exclusive operation of federal act

troactive—Winfree v. Northern Pac.
R. Co., 227 U. S. 296, 301, 57 L. Ed.
518, 33 S. Ct. 273, affirming 173 Fed.
65; Atlantic, etc., R. Co. v. Burnette
(U. S.), 36 S. Ct. 75.

In Randall v. Minneapolis, etc., R.
Co. (Wis.), 156 N. W. 629, it is held
that the act of congress of March 4,
1915, providing for inspection and ap-
pliances of locomotives, does not abro-
gate a state law so as to affect a judg-
ment previously rendered for a plain-
tiff.

11. Winfree v. Northern Pac. R. Co.,
227 U. S. 296, 57 L. Ed. 518, 33 S. Ct.
273, affirming (C. C. A.), 173 Fed. 65,
which affirmed 164 Fed. 698.

12. Same—Decisions under Act of
June 11, 1906.—Hall v. Chicago, etc., R.
Co. (C. C.), 149 Fed. 564: Plummer
v. Northern Pac. R. Co. (C. C.), 152
Fed. 206.

18. Morrison 7. Baltimore, etc., R.
Co. (D. C.), 40 App. Cas. 391, Ann.
Cas. 1914C, 1026.

—Power of states in absence of con-
gressional regulation United States.—
Second Employers’ Liability Cases,
223 U. S. 1, 56 L. Ed. 327, 32 S. Ct.
169, 38 L. R. A., N. S., 44; Michigan
Cent. R. Co. vw. Vreeland, 227 U. S.
59, 57 L. Ed. 417, 33 S. Ct. 192, Ann.
Cas. 1914C, 176; Missouri, etc., R. Co.
wv. Castle, 224 U. S. 541, 56 L. Ed. 875,
32 S. Ct. 606, 608; Chicago, etc., R. Co.
v. Solan, 169 U. S. 133, 42 L. Ed. 688,
18 S. Ct. 289; Missouri Pac. R. Co. vw.
Castle, 97 C. C. A. 124, 172 Fed. 841.

Massachusetts—Corbett v. Boston,
etc. Railroad, 219 Mass. 351, 107 N.
E. 60. ;

Texas—Missouri, etc. R. Co.
Turner (Tex. Civ. App.), 138 S. W.
1126, 1128; Missouri, etc, R. Co. wv.

Sadler (Tex. Civ. App.), 149 S. W.
1188.

See ante, “Limitation of State and
Territorial Powers,” Chap. II.
§ 24 FEDERAL EMPLOYERS’ LIABILITY ACT. 36
field, are superseded, since that which is not supreme must yield to that
which is.145 And what is true of the states applies with even stronger rea-
son, of course, to territorial legislation, over which congress has direct con-
trol,16 and to regulations based upon the common law as well as to those
based upon statutes. Both are rules of conduct proceeding from the su-
preme power of the state, and the fact that one is unwritten and the other
written can make no difference in their validity or effect17 Nor can a
state by subsequent legislation impair or curtail the rights conferred or lia-
bilities imposed by the statute.18

Applying these principles, the decided cases establish the proposition that
actions by employees against railroad companies to recover for personal in-
juries sustained when both parties were engaged in interstate commerce at
the time of the injury are governed by the Federal Employers’ Liability Act
of April 22, 1908, and that said act supersedes all other laws as to actions
for injuries so sustained, and is controlling as to the character of the ac-
tion, the party plaintiff, the jurisdiction in which it may be brought, the ele-
ments and measure of damages, and the persons entitled to the benefit of any
sum that may be recovered. In short, as to injuries sustained by the em-
ployees of railroads engaged in interstate commerce, where both are engaged
in such commerce at the time the injury is sustained, this act overlaps and
covers all state and territorial legislation, as well as regulations based upon

the common law, and is therefore exclusive.19

15. Powers of congress not affected
by its inaction.—United States—Second
Employers’ Liability Cases, 223 U. S.
1, 56 L. Ed. 327, 32 S. Ct. 169, 38 L.
R. A. N. S., 44, reversing 82 Conn.
373, 73 Atl. 762, and affirming 173 Fed.
494; El Paso, etc., R. Co. vw. Gutierrez,
p15 U. S. 87, 54 L. Ed. 106, 30 S. Ct.
21; Michigan Cent. R. Co. v. Vreeland,
227 U. S. 59, 57 L. Ed. 417, 33 S. Ct.
192, Ann. Cas. 1914C, 176.

Texas—St. Louis, etc, R. Co. wv.
Geer (Tex. Civ. App.), 149 S. W. 1178,
1180.

Vermont—White v. Central Ver-
mont R. Co., 87 Vt. 330, 89 Atl. 618,
affirmed in 35 S. Ct. 865.

16. As to territorial legislation —FE1
Paso, etc., R. Co. v. Gutierrez, 215 U.
S. 87, 54 L. Ed. 106, 30 S. Ct. 21;
Cound v. Atchison, etc, R. Co. (C.
C.), 173 Fed. 527; Southern Pac. Co.
v. McGinnis, 98 C. C. A.°403, 174 Fed.
649.

The act of congress of 1906, being
in force in the territory at the time of
this occurrence, superseded the laws
of the territory on the subject. Atchi-
son, etc, R. Co. v. Tack (Tex. Civ.
App.) 130 S. W. 596, writ of error de-
nied in 104 Tex. 678, no op.

‘sequent

17. Immaterial whether regulation
based upon common law or statute.—
United States—Western Union Tel. Co.
v. Commercial Milling Co., 218 U. S.
406, 54 L. Ed. 1088, 31 S. Ct. 59, 36 L.
R. A. N. S., 220, 21 Am. & Eng. Ann.
Cas. 815, affirming 151 Mich. 425, 115
N. W. 698; Cound v. Atchison, etc., R.
Co. (C. C.), 173 Fed. 527; De Atley
v. Chesapeake, etc, R. Co. (D. C.),
201 Fed. 591.

Indiana.—Southern R. Co. v. Hower-
ton (Ind.), 105 N. E. 1025, reversing
101 N. E. 121.

Kentucky—South Covington, etc., R.
Co. v. Finan, 153 Ky. 340, 155 S. W.
742,

Washington—Lauer v. Northern Pac.
R. Co. (Wash.), 145 Pac. 606.
West Wirgintia—Easter v.
R. Co. (W. Va.), 86 S. E. 37.
18. Right to impair or curtail by sub-

1 legislation. — Grybowski v.

Erie R. Co. (N. J.), 95 Atl. 764.

19. All state and territorial legisla-
tion superseded by Act of April 22,
1908.—St. Louis, etc., R. Co. uv. Seale,
229 U. S. 156, 57 L. Ed. 1129, 33 S. Ct.
651, Ann. Cas. 1914C, 156; St. Louis,
etc., R. Co. v. Hesterly, 228 U. S. 702,
57 L. Ed. 1031, 33 S. Ct. 703, reversing
98 Ark. 240, 135 S. W. 874; American

Virginia
37

CONSTRUCTION AND OPERATION OF ACT.

§ 24

The supreme, controlling, and exclusive operation of the act as laid down

by the federal courts is also fully recognized by the state courts.2°

R. Co. v. Didricksen, 227 U. S. 145,
57 L. Ed. 456, 33 S. Ct. 224, 225; Michi-
gan, etc., R. Co. v. Vreeland, 227 U. S.
59, 57 L. Ed. 417, 33 S. Ct. 192, Ann.
Cas. 1914C, 171; Missouri, etc., R. Co.
v. Wulf, 226 U. S. 570, 57 L. Ed. 274,
33 S. Ct. 135, Ann. Cas. 1914B, 134 Bot-
toms v. St. Louis, etc., R. Co. (C. C.),
179 Fed. 318; El Paso, etc, R. Co.
v. Gutierrez, 215 U. S. 87, 54 L. Ed.
106, 30 S. Ct. 21; Walsh v. New
York, etc., R. Co. (C. C.), 173 Fed. 494;
Oliver v. Northern Pac. R. Co. (D. C.),
196 Fed. 432; American R. Co. v. Birch,
224 U. S. 547, 56 L. Ed. 879, 32 S. Ct.
603; Whittaker v. Illinois, etc, R.
Co. (C. C.), 176 Fed. 130; Fulgham v.
Midland Valley R. Co. (C. C.), 167
Fed. 660; Taylor v. Southern R. Co.
(C. C.), 178 Fed. 380; Cound v. Atchi-
son, etc, R. Co. (C. C.), 173 Fed. 527,
531; Dewberry v. Southern R. Co. (C.
C.), 175 Fed. 307; Second Employers’
Liability Cases, 223 U. S. 1, 56 L. Ed.
327, 32 S. Ct. 169, 38 L. R. A, N.S,
44, reversing 82 Conn. 373, 73 Atl. 762;
Copper River, etc, R. Co. v. Heney,
128 C. C. A. 131, 211 Fed. 459; Ander-
son 7. Louisville, etc., R. Co. (C. C.),
210 Fed. 689; North Carolina R. Co.
v. Zachary, 232 U. S. 248, 58 L. Ed.
591, 34 S. Ct. 305, Ann. Cas. 1914C,
i159; De Atley v. Chesapeake, etc., R.
Co. (D. C.), 201 Fed. 591; Bankson v.
Illinois Cent. R. Co. (D. C.), 196 Fed.
171; Delaware, etc., R. Co. v. Yurkonis,
137 C. C. A. 23, 220 Fed. 429, dis-
missed for want of jurisdiction in 35
S. Ct. 902; Zikos wv. Oregon R.,
etc., Co. (C. C.), 179 Fed. 893; Kelly
v. Chesapeake, etc, R. Co. (D. C.), 201
Fed. 602; Cory v. Lake Shore, etc., R.
Co. (D. C.), 208 Fed. 847; Seaboard
Air Line Railway v. Horton, 233 U.
S. 492, 58 L. Ed. 1062, 34 S. Ct. 635,
1915C, L. R. A. 1, Ann. Cas. 1915B, 475;
Toledo, etc., R. Co. v. Slavin, 236 U.
S. 454, 35 S. Ct. 306; Taylor v. Taylor,
232 U. S. 363, 34 S. Ct. 350; Peek v.
Boston, etc., Railroad (D. C.), 223 Fed.
448, 450; Grand Trunk, etc, R. Co. v.
Lindsay, 233 U. S. 42, 34 S. Ct. 581;
Smith v. Camas Prairie R. Co. (D. C.),
216 Fed. 799, 801; Chicago, etc, R.
Co. v. Devine (U. S.), 36 S. Ct. 27;
Chicago, etc, R. Co. v. Wright _(U.
S.), 36 S. Ct. 185; Seaboard, etc., Rail-
way v. Kenney (U. S.), 36 S. Ct. 458;
Spokane, etc., R..Co. v7. Campbell (U.
S.), 36 S. Ct. 683.

Contra—Thompson v. Wabash R.
Co. (D. C.), 184 Fed. 554.

Act held to apply to Porto Rico.—
That the Employers’ Liability Act of

Nor

April 22, 1908, does apply to Porto
Rico, is plain, since, on its face, it ex-
tends to the District of Columbia, the
territories, the Panama Canal Zone,
and other “possessions” of the United
States. That it does extend to Porto
Rico was expressly decided in Ameri-
can R. Co. v. Birch, 224 U. S. 547, 56
L. Ed. 879, 32 S. Ct. 603, and Ameri-
can R. Co. v. Didricksen, 227 U. S. 145,
57 L. Ed. 456, 33 S. Ct. 224, 225.

The question as to whether the safety
appliance act extended to that island
was reserved in the Birch Case, but ex-
pressly decided in the affirmative in
American R. Co. v. Didricksen, 227 U.
S. 145, 57 L. Ed. 456, 33 S. Ct. 224, 225.

20. Alabama.— Ex parte Atlantic
Coast Line R. Co., 190 Ala. 132, 67
So. 256; Atlantic Coast Line R. Co.
v. Jones, 12 Ala. App. 419, 67 So. 632.

Arkansas—St. Louis, etc., R. Co. v.
Sharp (Ark.), 171 S. W. 95.

Connecticut—Vickery v. New Lon-
don, etc, R. Co. 87 Conn. 634, 89
Atl. 277.

Florida—Flanders v. Georgia,
R. Co., 68 Fla. 479, 67 So. 68.

Georgia—Louisville, etc., R. Co. v.
Kemp, 140 Ga. 657, 79 S. E. 558;
Charleston, etc., R. Co. v. Anchors, 10
Ga. App. 322, 73 S. E. 551.

Illinois—Wagner v. Chicago, etc., R.
Co., 265 Ill. 245, 106 N. E. 809, Ann.
Cas. 1916A, 778.

Indiana—Vandalia R. Co. v. Stringer
(Ind.), 106 N. E. 865; Southern R. Co.
v. Howerton (Ind.), 105 N. E. 1025,
reversing 101 N. E. 121.

lowa.—Bradbury v. Chicago, etc., R.
Co., 149 Iowa 51, 128 N. W. 1, 40 L.
R. A., N. S., 684; Armbruster v. Chi-
cago, etc., R. Co., 166 Iowa 155, 147
N. W. 337.

Kansas—Cole v. Atchison, etc. R.
Co., 92 Kan. 132, 139 Pac. 1177.

Kentucky.—Louisville, etc., R. Co. v.
Strange, 156 Ky. 439, 161 S. W. 239;
Illinois Cent. R. Co. v. Doherty, 153
Ky. 363, 155 S. W. 1119, 47 L. R. A,
N. S., 31; South Covington, etc., R. Co.:
v. Finan, 153 Ky. 340, 155 S. W. 742;
McGarvey v. McGarvey, 163 Ky. 242,
173 S. W. 765; Cincinnati, etc., R. Co.
v. Tucker (Ky.), 181 S. W. 940; Cin-
cinnati, etc. Ry. Co. uv. Clarke (Ky.
App.), 185 S. W. 94.

Louisiana—Penny v. New Orleans,
etc., R. Co., 135 La. 962, 66 So. 313;
La Casse v. New Orleans, etc., R. Co.,
135 La. 129, 64 So. 1012.

Massachusetts—Corbett v.

ete,

Boston,
§ 24

FEDERAL EMPLOYERS LIABILITY ACT.

38

could they refuse to enforce it on the ground that it was against the pub-

lic policy of the state.21

In summing up the operation of the act as to the states the Supreme Court
of Pennsylvania in Hogarty v. Philadelphia, etc., R. Co., 245 Pa. 443, 91 Atl.

854, said:

“In Second Employers’ Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 32
S. Ct. 169, 38 L. R. A., N. S., 44, the court disposed of four different

appeals, and determined many

general points, among others that:

‘(1) The United States is not a foreign sovereignty as regards the
several states, but is a concurrent and, within its Jurisdiction, a para-
mount sovereign; (2) until congress acted on the subject, the laws
of the several states determined the liability of interstate carriers for

oe Railroad, 219 Mass. 351, 107 N..
. 60.

Michigan.Jorgenson v. Grand Rap-
ids, etc. R. Co. (Mich.), 155 N. W.
535,

Missouri—Rich v. St. Louis, etc. R.
Co., 166 Mo. App. 379, 148 S. W. 1011;
Miller v. Kansas, etc., R. Co., 180 Mo.
App. 371, 168 S. W. 336; McIntosh
uv. St. Louis, etc., R. Co. (Mo. App.),
168 S. W. 821; Vaughan wv. St. Louis,
etc, R. Co., 177 Mo. App. 155, 164 S.
W. 144; Moliter v. Wabash R. Co., 180
(Mo. App. 84, 168 S. W. 250; Hawk-
ins v. St. Louis, etc., R. Co. (Mo. App.),
174 S. W. 129; Sells v. Atchison, etc.,
R. Co. (Mo.), 181 S. W. 106; Konkouris
v. Union Pac. R. Co. (Mo.), 186 S. W.
545.

Montana—Melzner v. Northern Pac.
R. Co., 46 Mont. 277, 127 Pac. 1002.

Nebraska—Wright v. Chicago, etc.,
R. Co., 94 Neb. 317, 143 N. W. 220.

New Hampshire—Shannon v. Boston,
etc., Railroad (N. H.), 92 Atl. 167.

New Jersey—Parker v. Atlantic, etc.,
R. Co. (N. J.), 93 Atl. 574; Grybowski
v. Erie R. Co. (N. J.), 95 Atl. 764.

New York.—Burtnett v. Erie R. Co.,
159 App. Div. 712, 144 N. Y. S. 969:
Gee v. Lehigh Valley R. Co., 148 N.
Y. S. 882, 163 App. Div. 274; Rogers v.
New York, etc. R. Co. (App. Div.),
157 N. Y. S. 83.

North Carolina —Burnett v. Atlantic,
etc, R. Co., 163 N. C. 186, 79 S. E.
414, reversed on other grounds in 36
S. Ct. 75; Fleming v. Norfolk, etc., R.
Co., 160 N. C. 196, 76 S. E. 212; Lloyd
v. North Carolina R. Co., 162 N. C,
485, 78 S. E. 489; Renn v. Seaboard Air
Line Railway (N. C.), 86 S. E. 964,
affirmed in 36 S. Ct. 567.

North Dakota—Manson v. Great
Northern R. Co. (N. Dak.), 155 N.
W. 32.

Ohio.—Erie R. Co. v. Welsh, 89 O.
St. 81, 105 N. E. 189.

Oklahoma.—Missouri, etc., R. Co. v.
Lenahan, 39 Okla. 283, 135 Pac. 383;

Chicago, etc, R. Co. v. McBee (Okla.),
145 Pac. 331; St. Louis, etc., R. Co. v.
Snowden (Okla.), 149 Pac. 1083, 1084.

Oregon.—Kamboris v. Oregon-Wash-
ington R., etc, Co., 75 Ore. 358, 146
Pac. 1097; Oberlin v. Oregon-Washing-
ton R., etc., Co., 71 Ore. 177, 142 Pac.
554,

Pennsylvania.—Hogarty v. Philadel-
phia, etc., R. Co., 245 Pa. 443, 91 Atl.
854,

South Carolina—Bramlett v. South-
ern R. Co., 98 S. C. 319, 82 S. E. 501.

Tennessee.—Carolina, etc., Railway v.
Shewalter, 128 Tenn. 363, 161 S. W.
1136, Ann. Cas. 1915C, 605; Howard wv.
Nashville, etc., R. Co. (Tenn.), 179 S.
W. 380.

Texas.—Eastern R. Co. v. Ellis (Tex.
Civ. App.), 153 S. W. 701; Rivera v.
Atchison, etc., R. Co. (Tex. Civ. App.),
149 S. W. 223; Kansas City, etc, R
Co. v. Pope (Tex. Civ. App.), 152 S.
W. 185, motion for rehearing denied in
153 S. W. 163; Gulf, etc, R. Co. v.
Lester (Tex. Civ. App.), 149 S. W.
841; Houston, etc, R. Co. v. Bright
(Tex. Civ. App.), 156 S. W. 304, writ
of error denied in 159 S. W. xxiii, no
op.; Missouri, etc, R. Co. v. Rentz
(Tex. Civ. App.), 162 S. W. 959, writ
of error denied in 163 S. W. xv, no op.;
International, etc., R. Co. v. Reek (Tex.
Civ. App.), 179 S. W. 669.

Vermont—Niles v. Central Vermont
R. Co., 87 Vt. 356, 89 Atl. 629.

Virginia Southern R. Co. v. Jacobs,
116 Va. 189, 81 S. E. 99, affirmed in 36
S. Ct. 588.

West Virginia—Easter v, Virginia R.
Co. (W. Va.), 86 S. E. 37.

Wisconsin. — Rowlands v. Chicago,
etc, R. Co., 149 Wis. 51, 135 N. W.
156; Graber v. Duluth, etc., R. Co., 159
Wis. 414, 150 N. W. 489.

21. Gee v. Lehigh Valley R. Co., 163
App. Div. 274, 148 N. Y. S. 882. See
post, “Duty of State Courts to Take

Jurisdiction,” § 110.
39

CONSTRUCTION AND OPERATION OF ACT. § 24

injuries to their employees while engaged in interstate commerce, but,
congress having acted, its action supersedes that of the states, so far
as it covers the same subject; (3) when congress, in the exertion of
a power confided to it by the constitution, adopts an act, it speaks for
all the people and all the states, and thereby establishes a policy for
all, and the courts of a state cannot refuse to enforce the act on
ground that it is not in harmony with the policy of that state’ or
‘on the ground of inconvenience or confusion.’ The case’ we are dis-
cussing involved the same federal statute which is now before us, and
it expressly supports the constitutionality of the very provision whose
protection the present plaintiff claimed in order to meet the defense
here interposed. Supplementing what we have already quoted, the
United States supreme court held that for the purposes of this act
congress had made a valid classification of railroads engaged in in-
terstate commerce, that the provisions of the statute ‘supersede the
laws of the state in so far as the latter cover the same field,’ that this
piece of national legislation must be heeded by all courts, that in its en-
forcement by state courts the act in question is ‘not to be treated as a
foreign statute’ but as one ‘establishing a policy for all,’ and, finally,
that the policy thus established is ‘as much the policy of Connecticut
(the state from which the appeal was taken) as if the act emanated
from its own Legislature.’ ”

Once conceded that the federal statute is applicable, the state law is ex-

cluded by reason of the supremacy of the former under the national con-
stitution,2? and the remedy given thereby is not merely cumulative,?3 or
supplementary,?4 because if so the federal enactments would not be the

22. Supreme not cumulative or sup-
plementary.—Second Employers’

Namare, 91 Ark. 515, 122 S. W. 102;

Lia- St. Louis, etc., R. Co. v. Hesterly, 98

bility Cases, 223 U. S. 1, 53, 56 L. Ed.
327, 347, 32 S. Ct. 169, 38 L R. A. N.
S., 44; Michigan Cent. R. Co. v. Vree-
land, 227 U. S. 59, 67, 57 L. Ed. 417,
33 §. Ct. 192, Ann. Cas. 1914C, 176;
St. Louis, etc., R. Co. v. Seale, 229 U.
S. 156, 57 L. Ed. 429, 33 S. Ct. 651,
Ann. Cas, 1914C, 156; St. Louis, etc.,
R. Co. v. Hesterly, 228 U. S. 702, 57
L. Ed. 1031, 33 S. Ct. 703, reversing 98
Ark. 240, 135 S. W. 874.

23. Wabash R. Co. v. Hayes, 234 U.
S. 86, 58 L. Ed. 1226, 34 S. Ct. 729;
Pelton v. Illinois Cent. R. Co. (Iowa),
150 N. W. 236. See, also, Staley z. Il-
linois Cent. R. Co., 268 Ill. 356, 109 N.
E. 342, L. R. A. 1916A, 450.

Contra-——Thompson v. Wabash R.
Co. (D. C.), 184 Fed. 554.

24, St. Louis, etc., R. Co. v. Hesterly,
228 U. S. 702, 57 L. Ed. 1031, 33 S. Ct.
703.

The Arkansas cases — Contra.—In
two separate cases that went to the
supreme court of Arkansas it was held
that the federal act is not exclusive in
its operation, and that ‘plaintiff suing
for injuries of this kind may proceed
under either the state or federal stat-
ute. St. Louis, etc, R. Co. v. Mc-

Ark. 240, 135 S. W. 874. The court be-
ing of the opinion that the federal act
was not exclusive in the first case for
the reason that there was no federal
statute requiring interstate carriers to
block switches, frogs, and guard rails;
it appearing that the deceased had
come to his death through the failure
of the defendant to block a frog or a
guard rail. In support of this ruling the
court relied upon the case of Chicago,
etc. R. Co. v. State, 86 Ark. 412, 111 S.
W. 456, in which it was held that the
Arkansas statute requiring railway com-
panies to equip certain freight trains
with at least three brakemen was not
in conflict with nor superseded by any
act of congress, which case was af-
firmed on writ of error to the Supreme
Court of the United States in Chicago,
etc., R. Co. 7 Arkansas, 219 U. S. 453,
55 L. Ed. 290, 31 S. Ct. 275.

In the second case, St. Louis, etc., R.
Co. v. Hesterly, 98 Ark. 240, 1385 S. W.
874, the action was brought by the per-
sonal representative of the deceased in the
courts of Arkansas for death resulting
from an injury sustained in Oklahoma
by reason of a defective car in the
freight train upon which deceased was
§§ 24-25 FEDERAL EMPLOYERS’ LIABILITY ACT. 40
supreme law of the land, and the federal authority would not be paramount
within its sphere of operation.2° Even to the distribution of the damages
recovered, the act governs in preference to the statute of distributions of
the state.?6

§ 25. Exclusive Operation of State and Federal Law.—Since there
has been some confusion of thought shown in the cases with regard to the
precise effect of the federal law upon state and territorial enactments, it may
be well to state, for the sake of accuracy, that the federal act does not operate
to make state enactments void in the sense of rendering them unconstitu-
tional: That is a term which would be applicable only in the event the states
had no power to legislate upon this subject, even in the absence of congres-
sional regulation. The true effect of the federal act, as specifically pointed
out in several cases, is merely to supersede existing state legislation and ren-
der it inoperative, as to the stbject covered by the federal act during the

time it continues in force.27

The state law is as supreme and exclusive in its application to intrastate

commerce as is the federal law to interstate commerce.?8

a brakeman, and the court, after com-
paring the Oklahoma statute and the
federal act, and holding that there was
no conflict, then proceeded, after no-
ticing the great weight of decided au-
thority to the contrary, particularly
the case of Fulgham v. Midland Val-
ley R. Co. (C. C.), 167 Fed. 660, to
hold that the remedy given by the
Federal Act of April 22, 1908, is not
exclusive, and that the plaintiff was en-
titled to proceed under the state law.
This case was reversed on a writ of
error to the Federal Supreme Court,
St. Louis, etc., R. Co. v. Hesterly, 228
U. S. 702, 57 L. Ed. 1031, 33 S. Ct.
703, that court reaffirming the propo-
sition that the federal act supersedes
state laws in the matters with which
it deals, and holding that it deals with
the liability of carriers while engaged
in commerce between the states for
defects in cars.

In view of the fact that the same
section of the act (§ 1) deals with in-
juries arising from defects and insuffi-
ciencies in the track and road bed, as
well as in cars, there is no doubt that
the decision in the first case, St. Louis,
etc., R. Co. v. McNamare, 91 Ark. 515,
122 S. W. 122, was also wrong, not-
withstanding the principle announced
in the case of Chicago, etc, R. Co. vw.
Arkansas, 219 U. S. 453, 55 L. Ed. 290,
31 S. Ct. 275.

25. Flanders vw. Georgia, etc., R. Co.,
68 Fla. 479, 67 So. 68.

26. Distribution of damages controls
over state statute—Taylor v. Taylor,
232 U. S. 363, 34 S. Ct. 350.

The courts of New York in the same

So it cannot be

case, In re Taylor, 144 App. Div. 634,
129 N. Y. S. 378, holding in the lower
court that the two remedies were con-
current and that an administrator could
not by his choice to sue under the fed-
eral act defeat the operation of the
state statute of distributions; the recov-
ery under the New York act provid-
ing that the damages should be so dis-
tributed. On appeal in the New York
court the case was affirmed though rec-
ognizing that the federal statute was su-
preme but that the control of Congress
must end somewhere and should end
at the death of the employee and that
the damages should be distributed ac-
cording to the state law or otherwise
its power might be extended to con-
trol the distribution of real estate pur-
chased by the earnings of an employee
in interstate commerce. In re Taylor,
204 N. Y. 135, 97 N. E. 502, Ann. Cas.
1913D, 276.

27. State legislation merely super-
seded, not rendered void, by operation
of federal act—United States —Mis-
souri Pac. R. Co. v. Castle, 97 C. C.
A. 124, 172 Fed. 841; S. C., 224 U. S.
541, 56 L. Ed. 875, 32 S. Ct. 606.

Kentucky.—Jones v. Chesapeake, etc.,
R. Co., 149 Ky. 566, 149 S. W. 951.

cxas.—Missouri, etc., R. Co. v. Sad-
dler (Tex. Civ. App.), 149 S. W. 1188;
Missouri, etc, R. Co. v. Turner (Tex.
Civ. App.), 138 S. W. 1126, 1128;
Houston, etc, R. Co. v. Bright (Tex.
Civ. App.), 156 S. W. 304, writ of er-
ror denied in 159 S. W. xxiii, no op.

28. Each supreme in its own field.—
Corbett v. Boston, etc., Railroad, 219
Mass. 351, 107 N. E. 60.
41 CONSTRUCTION AND OPERATION OF ACT. § 25
properly said that the state statutes are even suspended, unless they were
enacted specially to cover injuries received in interstate commerce. This
was seldom true. They generally permitted a recovery regardless of any
question of the character of the employment in which the employee was
engaged, which covered alike interstate and intrastate commerce. The ef-
fect of this act was to limit their application to intrastate commerce so that
now the state and federal law operate side by side, each in their appropriate
field, and an employee engaged in interstate commerce upon a road so en-
gaged has a right of recovery under the federal law, and an employee not
so engaged can recover under the state law.2®

In Wabash R. Co. v. Hayes, 234 U. S. 86, 58 L. Ed. 1226, 34 S. Ct. 729,

the court said:

“Had the injury occurred in interstate commerce, * * *

the federal

act undoubtedly would have been controlling, and a recovery could
not have been had under the common or statute law of the state; in
other words, the federal act would have been exclusive in its opera-

tion. * * *

On the other hand, if the injury occurred outside of

interstate commerce, the federal act was without application, and the

law of the state was controlling.”

In Shanks v. Delaware, etc., R. Co. (U. S.), 239 U.S. 556, 36 S. Ct. 188,

189, the court said:

“Tt is essential to a right of recovery under the act not only that the car-
rier be engaged in interstate commerce at the time of the injury, but
also that the person suffering the injury be then employed by the car-

rier in such commerce.

29. United States—Wabash R. Co. 7.
Hayes, 234 U. S. 86, 58 L. Ed. 1226, 34
S. Ct. 729; Shanks v. Delaware, etc., R.
Co. (U. S.), 239 U. S. 556, 36 S. Ct. 188.

Alabama—Ex parte Atlantic Coast
Line R. Co., 190 Ala. 132, 67 So. 256,

Arkansas—Midland Valley R. Co. v.
Ennis, 109 Ark. 206, 159 S. W. 214.

Connecticut—Vickery v. New Lon-
don, etc., R. Co., 87 Conn. 634, 89 Atl.
277.

Kansas—Cole v. Atchison, etc, R.
Co., 92 Kan. 132, 139 Pac. 1177.

Kentucky.—Louisville, etc., R. Co. v.
Strange, 156 Ky. 439, 161 S. W. 239;
Cincinnati, etc., Ry. Co. v. Clarke (Ky.
App.), 185 S. W. 94.

Massachusetts—Corbett v. Boston,
etc., Railroad, 219 Mass. 351, 107 N.
E. 60.

Michigan.—Fernette v. Pere Marquette
R. Co., 175 Mich. 653, 141 N. W. 1084,
144 N. W. 834.

Pennsylvania—Hench v. Pennsylvania
R. Co., 246 Pa. 1, 91 Atl. 1056, L. R.
A. 1915D, 557.

Texas—Houston, etc, R. Co. 7@.
Bright (Tex. Civ. App.), 156 S. W. 304,

And so it results where the carrier is also en-

writ of error denied in 159 S. W. xxiii,
no op.

Utah—Grow 7. Oregon, etc., R. Co.,
44 Utah 160, 138 Pac. 398, Ann. Cas.
1915B, 481.

“If the employee of a railroad en-
gaged in both interstate and intrastate
commerce is injured or killed while in
the former service, the carrier’s lia-
bility is controlled and must be de-
termined solely by the federal law; if
in the latter service, such liability rests
wholly upon ‘the state law. Wabash R.
Co. v. Hayes, 234 U. S. 86, 58 L. Ed.
1226, 34 S. Ct. 729.” Corbett v. Bos-
ton, etc., Railroad, 219 Mass. 351, 107
N. E. 60.

An act of congress regulating inter-
state commerce and fixing the liability
of common carriers engaged in that
commerce ‘to their employees is su-
preme and exclusive, and supersedes
state legislation on the same subject,
and whether the federal or the state
law is applicable in any case depends
on whether the employer and employee
were engaged in interstate commerce
when the injury was sustained by the
employee. Cole 7. Atchison, etc. R.
Co., 92 Kan. 132, 139 Pac. 1177.
8§ 25-26 FEDERAL EMPLOYERS’ LIABILITY ACT. 42

gaged in intrastate commerce, or in what is not commerce at all, that
one who, while employed therein by the carrier, suffers injury through
its negligence, or that of some of its officers, agents, or employees, must
look for redress to the laws of the state wherein the injury occurs, save
where it results from the violation of some federal statute, such as the
safety appliance acts.”

§ 26. As to Carriers and Employees While Engaged in Intra-
state Commerce.—Besides the operation of the federal and state laws as
just noted, it is a well-settled principle that where the same instrumentality,
as in the case of a railroad, is engaged in both intrastate and interstate trans-
portation, it is subject to both state and federal regulation, and that the full
control of each over the commerce subject to its dominion must be pre-
served.2° It follows, therefore, that the ifederal act does not and could
not supersede similar legislation by the states so long as the latter is made
applicable only to injuries sustained while the employee was engaging solely
in intrastate commerce, and that in such cases the action must be brought
under the state law, whether statutory or the common law, and that all
questions, such as proper parties plaintiff, the rules as to fellow servants,
contributory negligence, and assumption of risk, the elements and measure
of damages and the distribution of the same, will be determined by that
law.31

Thus under the act of 1906, it was held that “it is plain that actions
for damages for injuries to employees may be brought on account of such
injuries to those engaged in intrastate, as well as interstate, commerce. If
the employee bringing the suit was in the employment of a common carrier
engaged entirely in intrastate commerce, the right of action must neces-
sarily be created entirely under the state statute, and, if the employee was
in the employment of a common carrier engaged in interstate commerce,
the right of action is created under the federal statute.”82 And in Texas
the federal act does not operate to cover the injuries to one of a section
crew who while riding on a handcar was thrown therefrom by the excessive
speed of the car and defects in the track, when it is not pretended that the
operation of the handcar was in furtherance of or had anything whatever
to do with interstate commerce; in such a case the local law will control
and an instruction on contributory negligence under the local law is proper.8

30. As to carriers and employees
while engaged in intrastate commerce.
—Missouri, etc, R. Co. v. Larabee
Flour Mills Co., 211 U. S. 612, 620, 53
I. Ed. 352, 29 S. Ct. 214; Employers’
Liability Cases, 207 U. S. 463, 52 L,
Ed. 297, 28 S. Ct. 141.

31. Actions upon injuries arising in
intrastate commerce determined by
state law.— United States.— Hall v,
Louisville, etc., R. Co. (C. C.), 157 Fed.
464.

Georgia—Southern R. Co. v. Ansley,
8 Ga. App. 325, 68 S. E. 1086.

Kentucky.—Jones v. Chesapeake, etc.,
R. Co., 149 Ky. 566, 149 S. W. 951.

Texas.—Missouri, etc. R. Co. v.
Hawley (Tex. Civ. App.), 123 S. W.
726; Missouri, etc, R. Co. v. Turner
(Tex. Civ. App.), 138 S. W. 1126; Mis-
souri, etc, R. Co. v. Sadler (Tex. Civ.
App.), 149 S. W. 1188.

82. Hall v. Louisville, etc., R. Co. (C.
C.), 157 Fed. 464, 466.

33. Missouri, etc, R. Co. v. Turner
(Tex. Civ. App.), 138 S. W. 1126.
43 CONSTRUCTION AND OPERATION OF ACT. §§ 26-27

And in an action by a brakeman for injuries received by a fall from a car
where plaintiff alleged that the defendant owned and operated various lines
of railroad for the carriage of passengers and freight; that all of its lines
of railway are situated within the limits of one state; that it operates and
propels all of its trains within the limits of said state, and owns, controls,
and operates no lines of railway or railway cars outside of the state; that
at the time plaintiff was injured, his run was between the city of Dallas,
Dallas county, Tex., a terminal at one end, and the city of Denton, Denton
county, Tex., a terminal at the other end; that the car from which he fell
was incorporated in the train on which he was working at said city of Dal-
las, and taken out and left at the said city of Denton, so as plaintiff’s peti-
tion does not disclose that the action arose under the federal statute, then
it must be said that he is not seeking to recover for an injury received
through the negligence of defendant while the defendant was engaged in
interstate commerce, and the sufficiency of his pleading must be tested by
the state law.34

However, when the facts of a case, whether developed by the pleadings
or by the evidence, bring the federal law into operation, such law is para-
mount and excludes all conflicting state regulations, even though the facts
are commingled with other facts showing an intrastate operation at the same
time by the same parties and by the means used by them. In other words, a
conflicting state regulation cannot operate in a sphere covered by a federal
regulation where matters of state regulation are indissolubly commingled
with those exclusively controlled by the paramount federal law, for the
reason that in such cases the federal regulation is paramount and exclusive;
the purpose of the federal law being to maintain uniformity and suprem-
acy.35

§ 27. Right to Recover under Hither State or Federal Law—
Pleading and Proof.—Each law being supreme in its sphere of operation
there can be no right to recover under either law, and an opportunity for
an election is never presented,?% but the court should administer to the case
the law, whether state or federal, that the pleadings and evidence show to

be applicable, and failure to do so is error.**

34. Missouri, etc, R. Co. v. Hawley
(Tex. Civ. App.), 123 S. W. 726. See,
also, Missouri, etc, R. Co. v. Sadler
(Tex. Civ. App.), 149 S. W. 1188; Mis-
souri, etc., R. Co. v. Neaves (Tex. Civ.
App.), 127 S. W. 1090.

35. When interstate and intrastate
commerce conducted at same time.—
Flanders v. Georgia, etc, R. Co., 68
Fla. 479, 67 So. 68; Fernette v. Pere
Marquette R. Co., 175 Mich. 653, 141
N. W. 1084, 144 N. W. 834.

36. Right to election.— Vickery v.
New London, etc, R. Co. 87 Conn.

But there is no error in ap-

634, 89 Atl. 277. See post, “Election of
Remedies,” Chapter XIX.

87. United States—Toledo, etc, R.

‘Co. v. Slavin, 236 U. S. 454, 35 S. Ct.

306.
fowa.—Armbruster wv. Chicago, etc.,
R. Co., 166 Iowa 155, 147 N. W. 337.
North Carolina—Ingle v. Southern R.
Co., 167 N. C. 636, 83 S. E. 744.
Texas.—Chicago, etc., R. Co. v. Cosio
(Tex. Civ. App.), 182 S. W. 83.
Wisconsin.—Calhoun v. Great North-
ern R. Co. (Wis.), 156 N. W. 198.
It is reversible error to allow the
§ 27 FEDERAL EMPLOYERS’ LIABILITY ACT. 44
plying the state law where the pleadings and evidence do not show a cause
within the purview of the act,38 nor where the only evidence of interstate
commerce is confined to a surmise, on the cross-examination of a fireman
that there may have been some articles transported in interstate commerce;
when the defendant who had full knowledge on the subject, did not plead
that the train was in anywise engaged in interstate commerce, and did not
put in any evidence by the conductor, or engineer, or by the bills of lading
or otherwise to show that any articles in the train were being shipped in in-
terstate commerce.??

The defendant is entitled to have the act applied to the exclusion of any
other law and the plaintiff cannot by his pleadings so state his cause of ac-
tion as to preclude an application of the federal law, and the defendant may
plead that the same governs the case and if the proof sustains the allega-
tions, the federal law must be applied.1? And a new trial will be granted
where the case was tried as at common law, after the defendant had pleaded
the federal act and offered evidence to sustain the plea, which was held in-
admissible.#!

It has been held that if the parties do not see fit to stand upon their legal
rights to have the federal law applied, it may be waived, either expressly or
by implication.*2 This may be true when the pleadings do not show a case
within the act and any evidence to show the same is excluded as being inad-
missible under the pleadings,4? but the holding cannot be sustained where
-the facts upon which the cause of action must rest bring the case within the
operation: of the law, and it is immaterial how or when the real facts devel-
oped in the cause.*# So even where the petition did not show facts sufficient
to make a case under the act but the answer alleged them and also stated that
the parties. were engaged in interstate commerce, and the evidence disclosed
the answer to be true, it was error to submit the case to the jury as if the
state law was controlling.45 So too a defendant by pleading contributory
negligence does not thereby waive the right to insist that case is governed
by the federal law.4¢

jury to decide whether the state stat-
ute or the federal act applies to a case
where the evidence shows that the
parties were engaged in _ intrastate
commerce. Atchison, etc, R. Co. wv.
Pitts (Okla.), 145 Pac. 1148.

88. Chicago, etc, R. Co. v. McBee
‘((Okla.), 145 Pac. 331. See, also, Mis-
souri, etc., R. Co. v. Odom (Tex. Civ.
App.), 152 S. W. 730, 733, writ of error
denied in 154 S. W. xix, no op.

39. Ingle v. Southern R. Co., 167
N. C. 636, 83 S. E. 744.

40. Right of defendant to have ap-
plied—Burtnett v. Erie R. Co. 159
App. Div. 712, 144 N. Y. S. 969.

Where the defendant has definitely
raised the issue of interstate employ-
ment by allegations of the same which

are sustained by proof, the defendant
if liable at all will be so under the
federal act and not under a state stat-
ute. Armbruster v. Chicago, etc., R.
Co., 166 Iowa 155, 147 N. W. 337.

41. Carpenter v. Central Vermont R.
Co. (Vt.), 96 Atl. 373.

42, Waiver by parties—Graber v.
Duluth, etc., R..Co., 159 Wis. 414, 150
N. W. 489.

_ 48. See post, “Under Issues of Plead-
ings,” § 150.

44. Flanders v. Georgia, etc., R. Co.,
68 Fla. 479, 67 So. 68.

45. Chicago, etc. R. Co. v. Wright
239 U. S. 548, 36 S. Ct. 185.
46. Sells v. Atchison, etc., R. Co.

(Mo.), 181 S. W. 106.
45 CONSTRUCTION AND OPERATION OF ACT. § 27

When considering the right of the circuit court of appeals to approve the
action of the trial court, which decided that the federal act applied when
not pleaded or advanced on the trial, the Supreme Court of the United
States in Grand Trunk, etc., R. Co. v. Lindsay, 233 U. S. 42, 58 L. Ed. 838,
34 S. Ct. 581, 583, said:

“In the trial court it is insisted the operation and effect of the employers’
liability act upon the rights of the parties was not involved because that
act was not in express terms referred to in the pleadings or pressed
at the trial, and was hence not considered by the court in acting upon
the requested charge, and therefore, it is urged, it was error in the re-
viewing court to test the correctness of the ruling of the trial court by
the provisions of the employers’ liability act instead of confining the
subject exclusively to the safety appliance law and the rules of the
common law governing negligence. But the want of foundation for
this contention becomes apparent when it is considered that in the com-
plaint it was expressly alleged and in the proof it was clearly estab-
lished that the injury complained of was suffered in the course of the
operation of interstate commerce, thus bringing the case within the
employers’ liability act. It is true that to avoid the irresistible conse-
quences arising from this situation it is insisted in argument that as no
express claim was made under the employers’ liability act, therefore there
was no right in the plaintiff to avail of the benefits of its provisions,
or in the court to apply them to the case before it. But this simply
amounts to saying that the employers’ liability act may not be applied
to a situation which is within its provisions unless in express terms the
provisions of the act be formally invoked. Aside from its manifest un-
soundness, considered as an original proposition, the contention is not
open, as it was expressly foreclosed in Seaboard Air Line R. Co. wv.
Duvall, 225 U.S. 477, 482, 56 L. Ed. 1171, 1174, 32 Sup. Ct. Rep. 790.”

In Louisville, etc., R. Co. v. Carter#7 the court expressed the opinion that
the defendant having requested a given instruction that there could be no
recovery under a count based on the federal act on the theory that plaintiff
was not engaged in interstate commerce at the time of his injury, could not
also request, and object to the failure to give, an instruction upon the incon-
sistent theory that the plaintiff was engaged in interstate commerce and that
there could be no recovery under the state law. But it was held that as the
federal act supersedes a state enactment in that field and governs exclusively
all cases falling within its influence; and, if an employee is injured under cir-
cumstances subjecting his claim for damages to the control of the exclusive
authority of the federal enactment, he cannot properly recover therefor on
a count or counts declaring as for liability under the state law; and so,
when the defendant requested general affirmative instructions, in its favor,
with respect to counts drawn so as to state a cause of action under the state
law, it raised the inquiry, without regard to the count claiming liability under
the federal act which had been eliminated, whether the plaintiff was, when
injured, in the service of interstate commerce, and if, under the whole evi-

47. (Ala.), 70 So. 655.
§ 27 FEDERAL EMPLOYERS LIABILITY ACT. 46
dence, it indisputably appeared that he was in the interstate service when
injury overtook him, the defendant would have been entitled to have the
jury instructed against a recovery under the counts declaring on a liability
that, without the intervention of the federal enactment, might have been
available to him.

But it is considered harmless error to have tried the case under the state
law when the federal act was applicable, or vice versa, when under the cir-
cumstances of the case the operation and effect was the same, or the law
applied was more favorable to the complainant than the law that should have
been applied.48

Without any reference to the act of congress.in the pleadings, the courts
are presumed to be cognizant of the enactment of the federal act, and to
know that, with respect to the responsibility of interstate carriers by rail-
road to their employees injured in such commerce after its enactment, it
had the effect of superseding state laws upon the subject.49 Therefore in
stating that the action must be brought and recovery had under the state
law where the injury occurs in intrastate commerce, or under the federal
act where the injury occurs in interstate commerce, it is not meant to say
that the plaintiff must specifically plead or refer to the state statute in the one
case, or to the federal act in the other, for, as we shall presently see, the
proper procedure is to plead the facts, and a recovery may then be had ac-
cording as the evidence may develop a case under the one law or the
other.5° And as the pleader is not required to refer to the federal act, a
reference actually made to a state statute no more vitiated the pleading
than a reference to any other repealed statute would have done.51

If therefore, the plaintiff should specifically, but erroneously, base his ac-
tion upon a state law which, under principles heretofore stated, must be re-
garded as superseded by the federal act, the court may treat as surplusage,
and disregard, all reference to the state law, and if it should then appear,
that, omitting all reference to the state law. and treating it as surplusage,
the plaintiff has set forth facts showing a substantial cause of action under

48. When law not applicable—Harm-
less error.—See post, “Necessity of
Prejudicial Error,” § 202.

49. Judicial notice of statute.—Mis-
souri, etc., R. Co. vw Wulf, 226 U. S.
570, 57 L. Ed. 274, 33 S. Ct. 135, Ann.
Cas. 1914B, 134.

50. Unnecessary to plead the statute
—Plaintiff to plead the facts.—United
States—Missouri, etc., R. Co. v. Wulf,
226 U. S. 570, 57 L. Ed. 274, 33 S.
Ct. 135, Ann. Cas. 1914B, 134; Ullrich
v. New York, etc, R. Co. (D. C.), 193
Fed. 768. ‘

Arkansas.—St. Louis, etc., R. Co. v,
Hesterly, 98 Ark. 240, 135 S. W. 874,
reversed on other grounds in 33 S. Ct.
703; St. Louis, etc, R. Co. v. Coke
(Ark.), 175 S. W. 1177.

Georgia—Southern R. Co. v. Ansley,
8 Ga. App. 325, 68 S. E. 1086.

Indiana—Vandalia R. Co. v. Strin-
ger (Ind.), 106 N. E. 865.

Kentucky.—Jones v. Chesapeake, etc.,
R. Co., 149 Ky. 566, 149 S. W. 951;
Lemon v. Louisville, etc., R. Co., 137
Ky. 276, 125 S. W. 701.

See post, “Unnecessary to Plead
Statutes,” § 129; “Necessity of Defend-
ant Pleading Act as Defense,” § 138.

51. Effect of erroneous plea or ref-
erence.—Missonri, etc.. R. Co. v. Wulf,
226 U. S. 570, 57 L. Ed. 274, 33 S. Ct
135, Ann. Cas. 1914B, 134; Southern R.

Co. v. Ansley, 8 Ga. App. 325, 68 S. E.
1086, 1089.
47 CONSTRUCTION AND OPERATION OF ACT. § 27
the controlling law, that is, under the federal act, and that the evidence is
sufficient to support the same, the court may then administer the law as the
court knows it to be, and render judgment under and in accordance with the
federal act ;5? or it may permit the plaintiff to amend his pleading so as to
bring himself within the act.53

Thus in the Georgia case, the action was brought in the Georgia courts
upon a cause of action arising in Alabama, and the plaintiff specifically based
his case upon the Alabama statute, it otherwise appearing, however, from the
petition, and afterwards from the evidence, that the injury was sustained
while the employee was engaging in interstate commerce, and that the case
was therefore controlled by the federal act. The defendant attempted to
interpose this objection in an amendment to its answer, which amendment
was ruled out on the ground that it was in substance and effect a dilatory
plea, going not to the merits of the action, but merely seeking to show that
the plaintiff's right to recover was dependent, not upon the statute set forth,
but upon another statute, namely, the Federal Employers’ Liability Act, and
should therefore have been offered at the appearance term of the court. In
this, the court of appeals held that there was no error, or none of which the
defendant could complain,®+ since the Alabama statute was more favorable
to it than the federal act, and that since the petition was sufficient, after
omitting as surplusage all reference to the Alabama statute, to make out a
case under the federal act, and the evidence being plainly sufficient to de-
mand a verdict for the plaintiff under that act, it was the duty of the judge
to administer the law in accordance therewith, and that there was no error
in submitting the case and rendering judgment for the plaintiff as though
the action had been specifically brought under the federal act.55

The thing which can not be done is to award judgment under and in ac-
cordance with the principles of the state law where the evidence, as devel-
oped at the trial, shows that the cause of action arose in interstate com-
merce. This is what the Arkansas court attempted to do in the Hesterly
Case, which was reversed on writ of error to the Federal Supreme Court.56
Nor is it proper to permit a recovery under the federal act, if the state law

52. Court to give judgment under
state or federal law as case may war-~
rant.—Missouri, etc., R. Co. v. Wulf,
226 U.S. 570, 57 L. Ed. 274, 33 S. Ct.
135, 137, Ann. Cas. 1914B, 134; South-
ern R. Co. v. Ansley, 8 Ga. App. 325, 68
S. E. 1086, 1089.

58. Court may permit amendment.—
Missouri, etc., R. Co. v. Wulf, 226 U.
S. 570, 57 L. Ed. 274, 33 S. Ct. 135, 137,
Ann. Cas. 1914B, 134.

See post, “Amendment of Declara-
tion or Complaint,” § 137.

54, Southern R. Co. v. Ansley, 8 Ga.
App. 325, 68 S. E. 1086.

55. When objection treated as dila-
tory plea—Time of filing —Southern

R. Co. v. Ansley, 8 Ga. App. 325, 68
S. E. 1086, 1089. See, also, St. Louis,
etc., R. Co. v. Seale, 229 U. S. 156, 57
L. Ed. 1129, 33 S. Ct. 651, Ann. Cas.
1914C, 156; St. Louis, etc, R. Co. v.
Hesterly, 228 U. S. 702, 57 L. Ed. 1031,
33 S. Ct. 703. And see post, “Plea or
Answer,” §§ 138-141.

56. No recovery under state law
where evidence shows case arising in
interstate commerce.—St. Louis, etc.,
R. Co. v. Hesterly. 228 U. S. 702, 57
L. Ed. 1031, 33 S. Ct. 703, reversing 98
Ark. 240, 135 S. W. 874. See, also, St.
Louis, etc., R. Co. v. Seale, 229 U. S.
156, 57 L. Ed. 1129, 33 S. Ct. 651, Ann.
Cas. 1914C, 156.
§§ 27-28 FEDERAL EMPLOYERS’ LIABILITY ACT. 48
is applicable; so where a special verdict determined that the employee was
not engaged in interstate commerce, a judgment granting a recovery under
the act was error, even when the general verdict was for plaintiff.57

Complications arising in cases out of the fact that the statute under
which the action should have been brought required that the plaintiff should
have sued in a different capacity, or that the action should have been brought
by a different party plaintiff or for the benefit of different persons, will be
discussed hereafter.58

§ 28. Controlling over State Workmen’s Compensation Acts.—
There can be no recovery under a State Workmen’s Compensation Act, when
the case is comprehended within the meaning and scope of the Federal Em-
ployers’ Liability Act but recovery can only be had under this last-named
law.5® The cases to the contrary,®° are based on two theories; (1) that
the right of recovery under the state law is contractual and not covered by
the federal act granting a right of recovery for tort,64 and (2) that as such
state laws give a right of recovery for injuries in any case while the federal
act permits a recovery only where there is negligence,®2 they do not cover
the same subject matter and therefore are not excluded.

If it is held that a State Compensation Act may apply, the question of
double recovery is easiest answered, for it may well be held that when an
employee has received pay for the injury which he has sustained upon a
remedy chosen by him, and that his election of one of such remedies pre-
vents him from resorting to the other.%%

But the uniformity of the decisions to the effect that when the employer
and employee are engaged in interstate commerce that the rights of each
are to be determined by the federal act, whether it be more favorable or less

57%. Barker v. Kansas City, etc., R.
Co., 94 Kan. 176, 146 Pac. 358.

58. Where plaintiff sues in wrong
capacity, or action brought for wrong
person.—See post, “Parties Entitled to
Sue,” Chap. XIII; “Beneficiaries under
. Chap. XIV; “Party Plaintiff,”
§ 127.

59. Controlling over State Work-
men’s Compensation Acts.—Southern
Pac. Co. wv. Pillsbury, 170 Cal. 782, 151
Pac. 277; Staley v. Illinois Cent. R.
Co., 268 Ill. 356, 109 N. E. 342, 343, L.
R. A. 1916A, 450; Chicago, etc., Ry. Co.
v. Industrial Board (Ill.), 113 N.
E. 80.

60. Rounsaville vw. Central R. Co.
(N. J.), 94 Atl. 392; West Jersey Trust
Co. v. Philadelphia, etc, R. Co. (N.
J.), 95 Atl. 753; Winfield v. New York,
etc, R. Co. (App. Div.), 153 N. Y.
S. 499, affirmed in 110 N. E. 614.

See Jensen v. Southern Pac. Co., 215
N. Y. 514, 109 N. E. 600, L. R. A.
1916A, 403, where the Workmen’s

Compensation Act was held not to be
an interference with interstate com-
merce and applied to the steamship
company engaged solely therein, but
the federal act did not apply as the
carriage was not “by railroad.” And
Hammil v. Pennsylvania R. Co. (N.
J.), 94 Atl. 313, where the State Com-
pensation Act was held applicable, but
the decision turned on ithe point that
an employee on an interstate canal,
did not come within the act which af-
fects only common carriers by rail.
See, also, to same effect Kennerson v.
Thames Towboat Co. (Conn.), 94 Atl.
Sie, 37D.

61. Hammil v. Pennsylvania R. Co.
(N. J.), 94 Atl 313; Rounsaville v.
Central R. Co. (N. J.), 94 Atl. 392.

62. Winfield v. Erie R. Co. (N. J.),
96 Atl. 394; Winfield v. New York,
etc, R. Co. (N. Y.), 110 N. E. 614,
affirming 153 N. Y. S. 499.

638. Objection of double recovery.—
Winfield v. New York, etc., R. Co.
(App. Div.), 153 N. Y. S. 499.
49 CONSTRUCTION AND OPERATION OF ACT. § 28

favorable than the state law, makes any other conclusion, than that the law
is supreme in these cases also, impossible.

In Michigan Cent. R. Co. v. Vreeland, 227 U. S. 59, 66, 57 L. Ed. 417,
33 S. Ct. 192, Ann. Cas. 1914c, 176, the court said:

“By this act congress has undertaken to cover the subject of the liability
of railroad companies to their employees injured while engaged in in-
terstate commerce. This exertion of a power which is granted in ex-
press terms must supersede all legislation over the same subject by the
states.”

Though it may be that many of the injuries on railroads while engaged
in interstate commerce occur without any negligence on the part of any
one, and that therefore the conclusion here reached will leave many injured
employees—or if the injury causes death, their relatives—without any op-
portunity for compensation, and is contrary to the spirit of the times, which
demands humane legislation covering this subject, this is an argument that
may well be addressed to the federal congress, but the courts must confine
themselves to the proper construction and operation of this act and cannot
consider the evils which it is claimed will arise from its execution, however
real those evils may be.®4

After an exhaustive review of federal. authorities the conclusion was
reached, that the application of the federal act was not to be determined by
the question of negligence alone, in Staley v. Illinois Cent. R. Co., 268 Il.
356, 109 N. E. 342, 348, L. R. A. 1916A, 450, where the court said:

“Tt is clear that there can be no ‘recovery’ under the Federal Employers’
Liability Act, properly construed, in the absence of negligence on the
part of the employer, as that term is used in the statute and in the de-
cisions construing the same. But if the question of negligence alone
determines the applicability of the federal law, then, before it can be
held that such law is applicable, there must be a final adjudication as
to whether the injury resulted from negligence. Obviously, congress
legislated on more than the subject of negligence. It legislated on that
but also on the amount of recovery, and superseded all state laws on
that subject. * * * It also legislated on the subject of limitation
when an action could be begun. * * * It also legislated as to what
persons could recover under the federal act and when an action would
survive the death of the injured person * * * also on the subject
of assumed risk and contributory negligence. We think it is.clear, also,
that section 5 of said Employers’ Liability Act touches upon and in a
measure covers cases where there is no negligence on the part of either
employee or employer, for it is well known that contracts for insurance,
relief benefit, or indemnity cover not only injuries caused by negligence,
but all injuries caused in any way while engaged in the employment of
the railroad. If the arguments of counsel on this question were to be
sustained, it would usually be difficult, if not impracticable, to enforce
liability for injuries caused while both parties were engaged in inter-

64. Hardship of limitation to recov- Illinois Cent. R. Co., 268 III. 356, 109
ery for ‘negligence alone—Staley v. N. E. 342, L. R. A. 1916A, 450.

Fed Act—+4
§ 28 FEDERAL EMPLOYERS LIABILITY ACT. 50

state commerce on railroads. This fact lends strong support, in our
judgment, to the argument that it was the intention of congress to as-
sume control of the entire field of liability of railroads for injuries to
employees occurring in interstate commerce. * * * The field of lia-
bility as to employees injured while engaged in interstate commerce on
railroads is occupied exclusively by the Federal Employers’ Liability
Act—and that, too, regardless of the negligence or lack of negligence
of either party to the litigation.”

It has been said that the act in providing liability “in certain cases” indi-
cates that it does not cover all grounds of liability, and for this reason a lia-
bility created by a state for an injury sustained without negligence was not
covered by the act.65 But it is more reasonable to suppose that the phrase
was inserted in this title to obviate some of the defects suggested in the title
of the act held unconstitutional, and that the “certain cases” was meant to
limit it to those cases where the liability arose in interstate commerce.®¢

Nor should it seem that it would be necessary in order for the defendant
to preclude a recovery under a Compensation Act, to show that it had been
negligent and therefore liability existed under the federal act, as has been
intimated in two decisions.67 But all that is necessary is to show that the
railroad and the employee were engaged in interstate commerce, the same
as when it is desired to have the case tried under the federal law to the ex-
clusion of any other state law, and its ultimate liability under the federal law
would be determined on the trial.

65. Meaning of use of phrase “in 67. Requiring defendant to show
certain cases.”—Winfield 7. New York, negligence, making case under the
etc, R. Co. (App. Div.), 153 N. Y. S. federal act—Winfield v. Erie R. Co.
499, 500, affirmed in 110 N. E. 614. (N. J.), 96 Atl. 394; Winfield v. New

66. Staley v. Illinois Cent. R. Co., York, etc, R. Co. (App. Div.), 153
268 Ill. 356, 109 N. E. 342, L. R. A. N.Y. S. 499.
1916A, 450.
CHAPTER VI.

AGREEMENTS IN CONTRAVENTION OF ACT.

. Contract, Stipulation, or Device Intended to Defeat Operation of Statute, § 29.
. Requiring Notice Precedent to Suit, § 30.

. Contracts with Relief Department, § 31.

. Release of Liability Subsequent to Injury, § 32.

re WW

§ 29. Contract, Stipulation, or Device Intended to Defeat Opera-
tion of Statute.—Section 5 of the Act of April 22, 1908, expressly pro-
vides 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,’ with a
proviso permitting the carrier to set off any sum of money, insurance or
relief benefit it may have paid to the injured employee, or the person entitled
thereto, on account of the injury or death for which the action is brought.
This provision of the act has been variously attacked as being opposed to the
due process clause of the Fifth Amendment, but there can be no question
that the power to enact such legislation carries with it the power to prohibit
any contract or device the purpose and intent of which is to waive, modify,
evade, or in anywise thwart the purpose of the act by relieving the employer
of his liability thereunder. This provision of the act is not unconstitutional,
therefore, as infringing the liberty of contract guaranteed by the Fifth
Amendment.1

In Second Employers’ Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 32 S.
Ct. 169, 38 L. R: A., N. S., 44, the court said:

“Next in order is the objection that the provision in § 5, declaring void
any contract, rule, regulation, or device, the purpose or intent of which

1. Contract—Stipulation or device hibit agreements to dispense with
intended to defeat operation of statute them. If it may restrict employment
—Constitutionality—Liberty of con- in any service to eight hours a day, it
tract—Second Employers’ Liability may make contracts for longer serv-
Cases, 223 U. S. 1, 56 L. Ed. 327, 32 ice unlawful. The rule is, where the
S. Ct. 169, 38 L. R. A, N. S., 44, re- regulation is valid, that is, not being
versing 82 Conn. 373, 73 Atl. 762, and arbitrary or unrelated to a proper pur-
affirming 173 Fed. 494; Philadelphia, pose, congress, may prevent it from
etc, R. Co. v. Schubert, 224 U. S. being nullified by prohibitive contracts.
603, 56 L. Ed. 911, 32 S. Ct. 589; Oli- In all such cases of interference with
ver v. Northern Pac. R. Co. (D. C.), the right to contract, it has been held
196 Fed. 432, 434; Malloy v. Northern to be ‘incidental to the main object of
Pac. R. Co. (C. C.), 151 Fed. 1019, the regulation, and, if the power ex-
1020. See, also, Zikos v. Oregon ists to accomplish the latter, the inter-
R., etc., Co. (C. C.), 179 Fed. 893; and ference is justified as an aid to its ex-
(under act 1906) McNamara v. Wash- ercise. Holden v. Hardy, 169 U. S.
ington Terminal Co., 35 App. D. C. 366, 42 L. Ed. 780, 18 S. Ct. 383.” St.
230. Louis, etc, R. Co. 7. Conley, 110 C.

“Thus, if congress may require the C. A. 97, 187 Fed. 949.
use of safety appliances, it may pro- '

51
‘

§ 29 FEDERAL EMPLOYERS LIABILITY ACT. ys

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, 55 L. Ed. 328, 31 S. Ct. 259; Atlantic Coast
Line R. Co. v. Riverside Mills, 219 U. S. 186, 31 S. Ct. 164, 55 L. Ed.
167,31 L. R. A., N.S., 7, and Baltimore, etc., R. Co. v. Interstate Com-
merce Comm., 221 U. S. 612, 31 S. Ct. 621, 55 L. Ed. 878, that if con-
gress possesses the power to impose that liability, which we here hold
that it does, it also possesses the power to insure its efficacy by prohibit-
ing any contract, rule, regulation, or device in evasion of it.”

And as applied to existing contracts, rules or regulations, the Supreme
Court of the United States holds, with unanswerable logic, that the power
of congress, in its regulation of interstate commerce, and of commerce in
the District of Columbia and in the territories, to impose this liability, is
not fettered by the necessity of maintaining existing arrangements and stip-
ulations which would conflict with the execution of its policy; that to sub-
ordinate the exercise of the federal authority to the continuing operation of
previous contracts would be to place, to that 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 pro-
phetic discernment, to bring within the range of their agreements; that the
constitution recognizes no stch limitation, and that it is of the essence of
the delegated power of regulation that, within its sphere, congress should
be able to establish uniform rules, immediately obligatory, which, as to fu-
ture action, shall transcend all inconsistent provisions. Prior arrangements,
therefore, are necessarily subject to this paramount authority.”

Not only is this principle to be deduced from the nature of the power
itself, but it results also from the fact that the prohibition against the im-
pairment of the obligation of contracts is not a restriction upon the powers
of congress, and that the due process clause of the Fifth Amendment is
held not to apply to incidental loss or injury arising from the operation of
law, but only to those cases in which there is a direct taking or appropria-
tion of property? Existing as well as future contracts contravening the
terms of this section fall under its condemnation, therefore, and must be
held to have been entered into with the full knowledge and understanding
that congress might at some future time so exercise the power vested in it
as to render the same invalid# The same principle has been applied in the

2. Constitutionality as applied to ex-
isting contracts and arrangements.—
Philadelphia, etc., R. Co. uv. Schubert,
224 U. S. 603, 56 L. Ed. 911, 32 S. Ct.
589.

38. Same—Applicability of impair-
ment clause—Incidental injuries not
covered by Fifth Amendment.—Legal
Tender Cases (U. S.), 12 Wall. 457, 551,
20 L. Ed. 287; Second Employers’ Li-
ability Cases, 223 U. S. 1, 56 L. Ed.
327, 32 S. Ct. 169, 38 L. R. A, N.S,

44 (reversing 82 Conn. 373, 73 Atl. 754,
762); Watson 7. St. Louis, etc., R. Co.
(C. C.), 169 Fed. 942, 948; Missouri,
etc., R. Co. wv Mackey, 127 U. S. 205,
32 L. Ed. 107, 8 S. Ct. 1161; Snead v.
Central, etc, R. Co. (C. C.), 151 Fed.
608; St. Louis, etc., R. Co. v. Conley,
110 C. CLA. 97, 187 Fed. 949.

4, Same—Contracts made subject to
future exercise of power by congress.
—Philadelphia, etc, R. Co. 7. Schu-
bert, 224 U. S. 603, 56 L. Ed. 911, 32
53 AGREEMENTS IN CONTRAVENTION OF ACT. § 29
case of existing contracts contravening the prohibitions of the Interstate
Commerce Act, as well as in other cases, and as the principle is a general
one those cases are equally applicable here.®

In answering the contention that there could have been no intent to deseat
the operation of the act by such pre-existing contracts in Philadelphia, etc.,
R. Co. v. Schubert, 224 U. S. 603, 56 L. Ed. 911, 32 S. Ct. 589, 592, the
court said:

“But that the provisions of § 5 were intended to apply as well to existing,
as to future, contracts and regulations of the described character, can-
not be doubted. The words, ‘the purpose or intent of which shall be to
enable any common carrier to exempt itself from any liability created
by this act,’ do not refer simply to an actual intent of the parties to
circumvent the statute. The ‘purpose or intent’ of the contracts and
regulations, within the meaning of the section, is to be found in their
necessary operation and effect in defeating the liability which the stat-
ute was designed to enforce. Only by such general application could
the statute accomplish the object which it is plain that congress had
in view.”

This section of the act operates to prevent a railroad company from set-
ting up as a defense a release of damages for injury or death, which re-
lease, independently of the statute, would be a full and complete defense to
the action; and it is held also to apply to implied as well as to express con-
tracts and agreements, and any special defense predicated upon an implied
contract of this character must fail.?

As the act is only applicable when the relation of employer and employee
exists,8 this section has no application as between parties not having the re-
lation of employer and employee,® and does not render invalid, the contract

S. Ct. 589; Second Employers’ Liabii-
ity Cases, 223 U. S. 1, 56 L. Ed. 327,
32 S. Ct. 169, 38 L. R. A., N. S., 44.

A contract though valid in all its
parts when executed, may if indivisi-
ble be rendered wholly void by subse-
quent federal legislation, but state leg-
islation could not have the same effect
as it would be contrary to U. S. Const.
Art. 1, § 10. Baltimore, etc., R. Co.
v. Miller (Ind.), 107 N. E. 545.

5. Principle general in its applica-
tion—Interstate commerce cases.—At-
lantic Coast Line R. Co. v. Riverside
Mills, 219 U. S. 186, 55 L. Ed. 167, 31
S. Ct. 164, 31 L. R. A., N. S., 7; Bal-
timore, etc., R. Co. v. Interstate Com-
merce Commission, 221 U. S. 612, 55
L. Ed. 878, 31 S. Ct. 621; Louisville,
etc., R. Co. v. Mottley, 219 U. S. 467,
55 L. Ed. 297, 31 S. Ct. 265; Chicago,
etc., R. Co. v. McGuire, 219 U. S. 549,
55 L. Ed. 328, 31 S. Ct. 259; Armour
Packing Co. v. United States, 209 U.
S. 56, 81, 52 L. Ed. 681, 28 S. Ct. 428;
New York, etc, R. Co. vw. United
States, 212 U. S. 500, 505, 53 L. Ed.
624, 29 S. Ct. 309; American Exp. Co.

v. United States, 212 U. S. 522, 533,
53 L. Ed. 635, 29 S. Ct. 315; Legal Ten-
der Cases (U. S.), 12 Wall. 457, 551, 20
L. Ed. 287.

6. Forbids setting up release of dam-
ages as a defense —Oliver v. Northern
Pac. R. Co. (D. C.), 196 Fed. 432, 434.

Written agreement to assume risk.

—See Fish v. Chicago, etc, R. Co.,
263 Mo. 106, 172 S. W. 340, where a
contract by an employee to take care
of himself as far as known and exist-
ing dangers of the work were con-
cerned, was held not to apply to an
injury received by a stand pipe, sub-
sequently erected too close to the
track and of which he did not receive
adequate notice.
'% Applies to implied as well as
express agreements.—Malloy v. North-
ern Pac. R. Co. (C. C.), 151 Fed. 1019,
1020.

8. Existence of relation of employer
and employee.—See ante, “Scope of
Act,” §§ 10-13.

9. Chicago, etc, R. Co. v. Wagner,
239 N. S. 452, 36 S. Ct. 135.
§ 29 FEDERAL EMPLOYERS’ LIABILITY ACT. 54
of a Pullman porter, releasing any railroad over which cars are being op-
erated from liability; and the fact that he had been promoted to porter in
charge and collected tickets from passengers to give the conductor when he
should come for them would not make him an employee.1° On the other
hand a railroad cannot exempt itself from liability by permitting its employ-
ees to be employed also by an express company to whom they have given a
written release of liability.1!

Under this section a contract entered into by a student brakeman to re-
lieve the railroad from liability for any injury to him in consideration of
the permission granted to go upon its property, trains, and cars for the
purpose of familiarizing himself with a brakeman’s duties, is void, for
though the contract did not show that he was to perform any duties for the
railroad, there was evidence that he was expected to perform and did per-
form such tasks as were assigned him by members of the crew in charge of
trains.12

Recognizing that there can be only one satisfaction for the same injury,
and that a valid release of a joint tort-feasor operates to release the other,
this section is applicable to an action brought against a third person to en-
force a liability not created by the federal act, when such third person and
plaintiff's employer were joint tort-feasors, and the action is sought to be
defeated by showing an acceptance of benefits under a relief contract which
discharged the employer and would operate to discharge the defendant, they
being joint tort-feasors. As in such a case the liability of the joint tort-
feasor could only be determined by asking what would happen if he were
sued, so the plaintiff may show that he and his employer were engaged in
interstate commerce, that the asserted release was within the federal stat-
ute, did not discharge his employer and could not operate to defendant’s dis-
charge. However, the defendant company was permitted to have set-off
against the verdict obtained an amount proportionate to that contributed by
it to the relief fund.12

Contracts when made with a bona fide independent contractor cannot be
regarded as an evasion of this section.1#

As a State Workmen’s Compensation Act cannot be regarded as cumula-
tive with the federal act, in making this provision it is not supposed that

10. Robinson v. Baltimore, etc. R.
Co., 237 U. S. 84, 35 S. Ct. 491.

11. Taylor v. Wells Fargo & Co.,
136 C. C. A. 402, 220 Fed. 796. In this
case injunction was asked by the ex-
press company to restrain the collec-
tion of a judgment previously obtained,
but the bill was held insufficient for
failure to allege the service as intra-
state or that the employee was in the
service of the express company only.

12. Contract of student brakeman.—
Rief v. Great Northern R. Co., 126
Minn. 430, 148 N. W. 309.

13. Operation between parties jointly
liable—Chicago, etc., R. Co. v. Wag-
ner, 239 U. S. 452, 36 S. Ct. 135, affirm-
ing Wagner v. Chicago, etc., R. Co., 265
ute 245, 106 N. E. 809, Ann. Cas. 1916A,

14, Contracts with independent con-
tractor.—Chicago, etc., R. Co. v. Bond
(U. S.), 36 S. Ct. 403, reversing 148
Pac. 103, on the holding that the evi-
dence did not show an independent re-
lation.
55 AGREEMENTS IN CONTRAVENTION OF ACT. §§ 29-30
congress intended to embrace therein a recovery under such a state act.
The first of these acts. was only passed two years after the federal act, and
it can hardly be held that the words “any contract” on the part of the car-
rier “to exempt itself from liability created’? would embrace such legisla-
tion; nor do the words “insurance relief,” ‘benefit,’ or “indemnity,” in the
sense they are used, include the compensation to be paid under such a
statute.15

The plaintiff by a failure to plead the act as applicable to the case is not
precluded from setting up that a release of injuries was void. His decla-
ration being entirely consistent with an action under the act, and the federal
law being the only law that could apply, he could rely thereon as forbidding
the defense.14

Where the facts are undisputed, the meaning and scope of a release is
a question of law for the court, and not one of fact for the jury.17

§ 30. Requiring Notice Precedent to Suit.—A provision in a con-
tract of employment requiring the employee, or in case of his death those
claiming under him, as a condition precedent to any action for damages,
that there be given within thirty days after such injury a notice in writing,
stating the time, place, cause and nature of the injury, has no application in
a suit brought under the federal act.18

This presents a different question from decisions to the effect that the
federal statute fixing the liability of carriers of freight does not invalidate
contracts requiring notice of loss or damage.1® In that class of cases the
suit is upon the contract itself, and it has been held that the provision about
notice is a reasonable regulation which is not in conflict with the federal
statute. A suit for personal injuries is not, however, a suit upon the con-
tract of employment, which is entirely collateral to the question of liability.
If the suit is based upon the contract between the parties, then any reason-
able regulation, not amounting to an exemption of liability, would be valid.
But any contract made between the parties in advance of the accrual of the
cause of action, and concerning a subject-matter which is not the basis of
the cause of action which subsequently accrues, necessarily amounts to an
attempt to fix the terms of liability in advance, and is inoperative. Such a
provision is an attempt to read into the statute, which expressly governs the
matter of the liability, something which is not found in the statute itself,
and is therefore invalid.?°

This seems to be settled by a decision of the Supreme Court of the United

15. Workmen’s Compensation Act
not within provision.—Staley v. Illinois
Cent. R. Co., 268 Ill. 356, 109 N. E.
342, L. R. A. 1916A, 450.

16. Failure to plead act as precluding
defense.—Hogarty v. Philadelphia, etc.,
R. Co., 245 Pa. 443, 91 Atl. 854.

17. Meaning and scope of contract
is question of law.—Anderson v. Ore-

gon, etc, R. Co. (Utah), 155 Pac. 446,
448,

18. Requiring notice precedent to
suit.—Chicago, etc, R. Co. v. Pearce
(Ark.), 175 S. W. 1160.

19. St. Louis, etc., R. Co. v. Keller,
90 Ark. 308, 119 S. W. 254.

20. Chicago, etc., R. Co. v. Pearce
(Ark.), 175 S. W. 1160.
§§ 30-31 FEDERAL EMPLOYERS’ LIABILITY ACT. 56
States in the case of El Paso, etc., R. Co. v. Gutierrez.?!_ That was an ac-
tion instituted in the courts of the state of Texas against a railroad com-
pany to recover for injuries sustained by the servant of the company in New
Mexico, then a territory, where there was a statute which provided that no
action for injuries, inflicting death, caused by any person or corporation in
the territory, could be maintained unless the person claiming damages
should within 90 days after the infliction of the injuries, and 30 days be-
fore commencing suit, serve wpon the defendant an affidavit giving particu-
lars as to the injuries complained of, etc. The injury in that case occurred
in June, 1906, after the passage of the first Employers’ Liability Act, which
was held by the Supreme Court of the United States to be unconstitutional,
except in its application to the District of Columbia and the territories. The
Texas court declined to give effect to the statute of the territory where the
injury occurred, and allowed a recovery without compliance with the terms
of that statute. That judgment was affirmed by the Supreme Court of the
United States. The court held that the Federal Employers’ Liability Act
superseded the statute of New Mexico, and that the Texas court was cor-
rect in disregarding it. Now, the point of that decision, so far as it ap-
plies here, is that, if the first Employers’ Liability Act superseded territorial
statutes on this subject, the last Employers’ Liability Act, which applies to
all persons working in the service of railroads in interstate commerce, like-
wise supersedes any state legislation on the subject, and it necessarily follows
that if other legislation is thus superseded and set at naught, contracts be-
tween the parties are also without force.??

§ 31. Contracts with Relief Department.—Stipulations in an exist-
ing contract of employment making the acceptance of benefits under a con-
tract of membership in a railway relief department equivalent to a release of
damages for the death or injury on account of which received, are also in-
validated.?8 ,

It was contended that congress in enacting the act of 1908, did not in-
tend to embrace therein contracts for relief which prevailed between rail-
roads and their employees, as this act did not specially designate them as
had the act of 1906, to which the supreme court in Philadelphia, etc., R. Co.
v. Schubert, 224 U. S. 603, 56 L. Ed. 911, 32 S. Ct. 589, 591, said:

“We cannot assent to this view. The evident purpose of congress was
to enlarge the scope of the section, and to make it more comprehensive
by a generic, rather than a specific, description. It thus brings within
its purview ‘any contract, rule, regulation, or device whatsoever, the
purpose or intent of which shall be to enable any common carrier to

21. 215 U. S. 87, 54 L. Ed. 106, 30 adelphia, etc, R. Co. v. Schubert, 224

S. Ct. 21.

22. Chicago, etc. R. Co. v. Pearce
(Ark.), 175 S. W. 1160.

23. Invalidates stipulation for release
through acceptance of benefits—Phil-

U. S. 603, 56 L. Ed. 911, 32 S. Ct. 589,
affirming 36 App. D. C. 565; McNa-
mara v. Washington Terminal Co., 35
App. D. C. 230.
mn
NI

AGREEMENTS IN, CONTRAVENTION OF ACT. § 31
exempt itself from any liability created by this act.’ It includes every
variety of agreement or arrangement of this nature; and stipulations,
contained in contracts of membership in relief departments, that the
acceptance of benefits thereunder shall bar recovery, are within its
terms. * * * The practice of maintaining relief departments,
which had been extensively adopted, and of including in the contract
of membership provision for release from liability to employees who
accepted benefits, was well known to congress, as is shown by § 3 of the
act of 1906. On specifically providing in that section that neither
such contracts, nor their performance, should be a bar to recovery, con-
gress inserted a proviso permitting a set-off of any sum the company
had contributed toward any benefit paid to the employee. When, in
the act of 1908, it enlarged the scope of the clause defining the con-
tracts and arrangements for indemnity which should not prevail,
congress retained the proviso in terms substantially the same. This
clearly indicates the intent to include within the statute stipulations
which made the acceptance of benefits under contracts of membership
in relief departments equivalent to a release from liability. Unless the
liability survived the acceptance of benefits, there could be no recovery,
and hence no occasion for set-off.”

The provisions of benefit and relief contracts are generally so worded
that an acceptance of benefits thereunder operates automatically as a con-
tract of release, but under this act even if the employee has accepted benefits
under such a contract from a relief department of a railroad, this will not
operate to prevent a recovery,?4 but the amount received should be deducted
from the damages awarded.

There are other forms of relief contracts which provide that no benefits °
shall be paid until a release is given; and when given this has been claimed
to be a new contract, purporting by its seal to be for consideration, subse-
quent to the injury, in no way dependent on the prior contract, and being
freely entered into by the parties should be observed. While recognizing
the persuasive and logical force of the contentions, the case was held in
Baltimore, etc., R. Co. v. 'Gawinske, 25 not distinguishable on any substantial
ground from the decision,?® that an acceptance of benefits of itself operated
as a release, and in conclusion in Baltimore, etc., R. Co. v. Gawinske, 116 C.
C. A. 579, 197 Fed. 31, 34, the court said:

“TThis] release, while a contract entered into after the injury, was in no
sense a release based on a settlement. It is not contended that any
settlement was made or any money paid in pursuance thereof, any new

24. Effect of acceptance of benefits.

—United States—Chicago, etc., R. Co.
v. Wagner, 239 U. S. 452, 36 S. Ct. 135.

Illinois Wagner v. Chicago, etc. R.
Co., 265 Ill. 245, 106 N. E. 809, Ann.
Cas. 1916A, 778, affirmed in 36 S. Ct.
135.

North Carolina —Herring v. Atlantic,
etc. R. Co. 168 N. C. 555, 84 S. E.
863; Burnett v. Atlantic, etc. R. Co.,

163 N. C. 186, 79 S. E. 414, reversed
on other grounds in 36 S. Ct. 75.

Pennsylvania—Hogarty v. Philadel-
phia, etc, R. Co., 245 Pa. 443, 91 Atl.
854.

25. Effect of subsequent agreement
as to benefits—116 C. C. A. 579, 197
Fed. 31.

26. Chicago, etc., R. Co. v7. McGuire,
219 U. S. 549, 55 L. Ed. 328, 31 S. Ct.
259.
§ 31 FEDERAL EMPLOYERS LIABILITY ACT. 58
consideration passed for which the release was executed, or indeed
that there were any subsequent negotiations or settlement between
these parties. On the contrary, the release is but the contractual
method of obtaining the relief benefits. Its contemplated purpose, as
provided in the initial contract, was to enable the beneficiary to obtain
the relief funds, and, being made in pursuance of such original con-
tract and without any additional consideration, to it may be applied
what was said of McGuire’s acceptance of benefits, viz.: “The accept-
ance of benefits is, of course, an act done after the injury, but the legal
consequences sought to be attached to that act are derived from the
provision in the contract of membership. The stipulation which the
statute nullifies is one made in advance of the injury that the subse-
quent acceptance of benefits shall constitute full satisfaction of the
claim for-damages.’ In substance, the stipulation is here the same.
The stipulation that no benefit can be paid without a release is substan-
tially the same as saying the acceptance of benefits shall be a release.
In both cases the acceptance of the benefit is the creator of the release.”

The act does not provide that such contracts shall be altogether void, but
only when made for the purpose or with the intent to exempt the carrier
from the liability created, and to that extent void. It therefore eliminates
from the contract a release from liability, and the remainder stands as a
valid subsisting contract on which an action may be maintained by the bene-
ficiary, who need not give any release as a condition precedent to the ac-
tion.27

But an employee who has sued the company and obtained a judgment,
cannot afterwards maintain an action to recover benefits.22 However, an
employee by prosecuting a suit for his injury to the supreme court of the
state, where a recovery was denied, is not barred from maintaining a sub-
sequent suit to recover under an insurance benefit contract with his em-
ployer, though such contract provided that the institution of suit would
preclude a recovery under the contract.2° In Hartman v. Chicago, etc., R.
Co. (Mo. App.), 182 S. W. 148, 154, the court says:

27. Rights of employees under con-
tracts—Rodell v. Relief Dept. 118
Minn. 449, 137 N. W. 174. But see
Baltimore, etc., R. Co. v. Miller (Ind.),
107 N. E. 545, where the contract was
held indivisible and therefore wholly
void.

Plaintiff's. deceased husband held a
membership certificate in the relief de-
partment of defendant, under which, in
the event of his death, defendant
agreed to pay a certain sum to plain-
tiff. The husband was injured while
in defendant's employ as_ engineer,
running a train engaged in interstate
commerce between a point in Wiscon-
sin and a point in Illinois. He re-
ceived his injuries in Illinois and died
there. The certificate provided that
no money thereunder should become

due till all claims against defendant
arising out of his death should be re-
leased. Held, that plaintiff was entitled
to recover, without furnishing defend-
ant with a release from the personal
representative of her deceased hus-
band, since, under the act of congress
the terms of the membership certifi-

‘cate to the extent that the same pro-

vided for releases from all claims on
account of wrongful death are void.
Rodell v. Relief Dept. 118 Minn. 449,
137 N. W. 174.

28. Right to sue on contract, after
suit under statute.—Baltimore, etc., R.
Co. v. Miller (Ind.), 107 N. E. 545.

29. Hartman v. Chicago, etc., R. Co.
(Mo. App.), 182 S. W. 148; Flaiz v.
Chicago, etc, R. Co. (Mo. App.), 184
S. W. 917.
59 AGREEMENTS IN CONTRAVENTION OF ACT. §§ 31-32

“But, if we should be wrong in our conclusion respecting the general law
concerning contracts of this character, we think as to’ an injury sus-
tained by a railroad employee while engaged in the service of inter-
state commerce the rule we have stated was intended to be expressed
by congress in § 5 of the Employers’ Liability Act. * * * In
clear and unmistakable terms it declares that to the extent that any
contract, rule, regulation, or device made for that purpose by the car-
rier shall enable it to exempt itself from any liability created by this
act such contract, rule, regulation, or device shall be void. That con-
gress had in mind just such contracts as that under consideration and
intended that they should fall within the scope of the denunciation is
shown in the context, which gives to the carrier the right to set off
against the plaintift’s claim any relief, benefit, or indemnity it may have
paid on account of the injury. In other words, contract or no contract,
the fact that defendant has paid relief benefits will not be allowed to work
a forfeiture of the plaintiff’s right to maintain his action for damages
subject to the right of defendant to set off benefits already paid. It
was not necessary to restate in the proviso the rule distinctly stated in
the principal enactment that a contract devised with the intent of en-
abling the carrier ‘to exempt itself from any liability created by this act
shall, to that extent, be void, regardless of its terms.’ We conclude
that plaintiff did not lose his right to benefits by bringing an action for
damages and prosecuting it to an unsuccessful end.”

§ 32. Release of Liability Subsequent to Injury.—There would
seem to be no doubt that an employee may affect a settlement for his in-
juries and give a binding release so as to preclude any action by him, if
made subsequent to the injury and with the requisites of a valid contract.
As the purpose of this provision was not to prevent the employer and his
employee from compromising and settling any matters of difference exist-
ing between them. In making such a settlement, if it is fair and free from
fraud, concealment, etc., no rights of either of the parties are frittered
away, but, on the contrary, are firmly maintained. The right to make a com-
promise and settlement and enter into a release is a right.of contract which
cannot be interfered with even by congress. Of course, congress may de-
prive the employer of his common-law defenses, and to the end may pre-
vent an indirect enforcement thereof; but it may not prevent the employee
from adjusting his own affairs in his own way after a cause of action has
arisen in his favor, so long as such adjustment is fair and violates neither
public policy nor some proper and enforceable statutory provision.®°

Such a contract has been held void for fraud, where the employee on
being discharged from the company’s hospital and in giving the release was
told by physicians that he was physically able to resume work, which was
untrue, and promised reemployment by the agent affecting the settlement,
which was not given.3!_ Though a release is not void for the reasori that the
full extent of the injuries sustained by the plaintiff were not known to him,

30. Release of liability subsequent to 31. When void for fraud.—Smith v.
injury—Anderson v. Oregon, etc, R. St. Louis, etc, R. Co. 95 Kan. 451,
Co. (Utah), 155 Pac. 446, 448. 148 Pac. 759.
§ 32 FEDERAL EMPLOYERS’ LIABILITY ACT. 60
if the defendant was as equally ignorant and did not conceal anything from
the plaintiff.82 Such a release may be void for want of mental capacity to
make the contract as well as fraud,?? but these need not concur. So it is
error to instruct a jury in effect that they must find three things concurring,
viz., mutual understanding that the payment was for lost time, and that he
was induced to execute the release by mistake or fraud, and that he was

mentally incapable of understanding the same.?+

32. Anderson v. Oregon, etc., R. Co.
(Utah), 155 Pac. 446.

33. Void for want of capacity or
fraud.—Louisville, etc., R. Co. v. Win-
kler, 162 Ky. 8438, 173 S. W. 151.

Where there is a conflict in the evi-
dence, an employee’s mental capacity

to make a contract releasing the em-
ployer for damages for his injury is
for the jury. Louisville, etc., R. Co.
v. Winkler, 162 Ky. 843, 173 S. W. 151.

34. Louisville, etc, R. Co. v. Win-
kler, 162 Ky. 843, 173 S. W. 151.
CHAPTER VII.

EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE.

1. General Principles to Determine, § 33.
2. The Employer, §§ 34-35.
a. Operating Own Road, § 34.
b. Operating Leased Road, § 35.
3. The Employee, §§ 36-51.
a. Employees Constructing or Repairing Instrumentalities, §§ 36-40.
(1) Employees Engaged in Repairing Instruments of Commerce—Gen-
erally, § 36.
(2) Employees Repairing Tracks, Bridges, etc., Used in Both Interstate
and Intrastate Traffic, § 37.
(3) Original Construction of Instrumentalities, § 38.
(4) Employees in Repair Shops, § 39.
(5) Repairing Interstate Cars in Transit. Awaiting Transfer, or Re-
turn, § 40.
b. Employees Actually Engaged in, or Assisting in, Transportation, §§ 41-46.
(1) Generally, § 41.
(2) Intrastate Movement of Trains—Carrying Interstate Shipments, § 42.
(3) Employees Preparing Interstate: Trains to Go Out, § 43.
(4) Employees Supplying Fuel, Water, etc., for Indiscriminate Use, § 44.
(5) Employees on Interstate Train—Switching Cars to Compose Train—
When Doing Local Switch Work—Switching after Arrival at
Terminus, § 45. ~
(6) Employees Switching Cars in Yards or between Local Points, § 46.
c. Local Employees; as Clerks, Hostlers, Watchmen, Gardeners, Car Loaders,
Inspectors, § 47.
d. Employees Not Particularly Engaged—Effect of Past or Future Serv-
ice, § 48.
e. Employees Engaged upon or about Ferryboats or Other Vessels Op-
erated by Railway Companies, § 49.
f. Persons Employed Jointly by Railroad Company and Another—Pullman
Employees, Express Agents, etc., § 50.
g. Employees Going to, or Returning from, Work; Waiting to Go on Duty;
Turning Aside During Employment; etc., § 51,

§ 33. General Principles to Determine.—In considering the scope of
the act it was seen that the courts have proceeded upon the theory that the
present act was drawn to obviate the defects which rendered the first act un-
constitutional, and that it is to be construed so as to include within the scope
of its operation every person whom congress could constitutionally include,!
not forgetting, however, that the defendant railroad company and the in-
jured employee must both have been engaged in interstate or foreign com-
merce at the time the injury was sustained.2 It is not essential, however,

a
1. Includes every person whom con- have been engaged in interstate com-
gress could include——See discussion merce.—See ante, “Limited to Parties
ante, under “Scope of Act,” §§ 10-13. Engaged in Interstate Commerce,”
2. Both railroad and employee must § 12.

61
§ 33 FEDERAL EMPLOYERS LIABILITY ACT. 62

that the agency or employee inflicting the injury, or through whose negli-
gence it came about, should also have been employed in such commerce,
since the statute gives a right of recovery for injury or death resulting from
the negligence “of any of the * * * employees of such carrier,” in-
cluding those engaged in intrastate commerce, the true criterion being, as
heretofore pointed out, not whether the agency or employee inflicting the
injury was engaged at the time in interstate commerce, but the effect of the
negligent act or omission upon such commerce.? In the determination of
the question of whether or not the parties were engaged in interstate com-
merce the federal supreme court has laid down the following principles. In
Pederson v. Delaware, etc., R. Co., 229 U. S. 146, 57 L. Ed. 1125, 33 S. Ct.
648, Ann. Cas. 1914C, 153, the court said:

“The true test always is: Is the work in question a part of the interstate
commerce in which the carrier is engaged ?”

In New York, etc., R. Co. v. Carr, 238 U. S. 260, 35 S. Ct. 780, the court
said:

“Fach case must be decided in the light of the particular facts with a
view of determining whether, at the time of the injury, the employee
is engaged in interstate business, or in an act which is so directly and
immediately connected with such business as substantially to form a
part or a necessary incident thereof.”

In Shanks v. Delaware, etc., R. Co., 239 U.S. 556, 36 S. Ct. 188, 189, it is
said: :

“Having in mind the nature and usual course of the business to which
the act relates and the evident purpose of congress in adopting the act,
we think it speaks of interstate commerce, not in a technical legal sense,
but in a practical one better suited to the occasion, * * * and that
the true test of employment in such commerce in the sense intended is,
Was the employee, at the time of the injury, engaged in interstate
transportation, or in work so closely related to it as to be practically a
part of it?”

And it was also well expressed by the supreme court of Wisconsin in
Graber v. Duluth, etc., R. Co., 159 Wis. 414, 150 N. W. 489, where the
court said:

“The test of whether the federal act applies to any particular situation
is not whether the particular person directly causing the injury was, at
the time thereof, engaged in interstate business, nor whether the act
in which the person was engaged was, exclusively, an interstate com-
merce service; but whether the person or corporation charged with
liability was engaged at the time it occurred in such commerce and the
particular service in progress and environing or characterizing the em-
ployer’s activity at the time of the injury, was of that nature,—its cast
in that regard being efficient if the work was a substantial part of in-
terstate commerce.”

8. See ante, “Where Injury to Inter- gence of Employee or Agency Not
state Employee Results from Negli- Engaged in Interstate Commerce,” § 3.
63 EMPLOYER AND EMPLOYEES ENGAGED IN INTERSTATE COMMERCE. §§ 33-34

While the past or future service of an employee is considered immaterial,
as the act refers to the service being rendered when the injury was suffered,*
it may be considered to determine whether the employee was engaged in in-
terstate or intrastate commerce when the employee is not particularly en-
gaged at the time of the injury,® or is going or coming from work.®

§§ 34-35. The Employer—-§ 34. Operating Own Road.—The fact
that a railroad is a common carrier engaged in interstate commerce is not in
itself sufficient to make the act applicable, if at the time the injury occurred
it was engaged in purely local business. The act itself limits its application
to injuries received “while engaged in” interstate commerce. When con-
sidering the scope of the act,’ the limitations to a common carrier and a
railroad was shown. It remains only to determine when such a carrier is en-
gaged in interstate commerce.

A railroad may be engaged in interstate commerce notwithstanding the
fact that its own line of railway lies wholly within a state.8 If such a
carrier transports any goods shipped from without the state to points
within the state, or any goods destined to points without the state, whether
taken aboard within or without the state, it is engaged in interstate com-
merce.? Thus a railroad company, the termini of whose lines are within the
state, hauling to points within the state, under contracts of through carriage,
cars loaded at points outside of the state and shipped therefrom by other
railroad lines, as initial carriers, is engaged in interstate commerce,
notwithstanding the train in which such cars are hauled is largely
composed of cars of intrastate shipment.1° And an intrastate railroad is
engaged in interstate commerce, when it receives interstate shipments, for
delivery at their ultimate destination, from connecting carriers, even though
such shipments were only billed to the initial carrying point of its line and
empty cars on the return were billed to this point also. And in such a éase
cars having reached their destination and having been unloaded, are still
engaged in interstate commerce when being returned empty to the connect-
ing carrier for the purpose of transportation to another state.11

An interurban electric line operated entirely within a state is nevertheless
engaged in interstate commerce when over 80 per cent of the business was

4, Past. and future service.—Illinois
Cent. R. Co. v. Behrens, 233 U. S. 473,
58 L. Ed. 1050, 34 S. Ct. 646, Ann. Cas.
1914C, 163; Shanks v. Delaware, etc.,
R. Co. (U. S.), 36 S. Ct. 188; Chicago,
etc, R. Co. v. Harrington (U. S.), 36
S. Ct. 517.

5. See post, “Employees Not Par-
ticularly Engaged—Effect of Past or
Future Service,” § 48.

6. See post, “Employees Going to,
or Returning from, Work; Waiting to

Go on Duty; Turning Aside During |

Employment, etc.,” § 51.

7. The employee.—See ante, “Scope
of Act,” §§ 10-13.

8. Roads wholly within state—
Gaines v. Detroit, etc, R. Co. 181
Mich. 376, 148 N. W. 397.

9. Lynch v. Central Vermont R. Co.
(Vt.), 95 Atl 683.

10. Findley v. Coal, etc., R. Co. (W.
Va.), 87 S. E. 198.

11. Same—Effect of rebilling at con-
necting point.—Trowbridge v. Kansas,
etc., R. Co. (Mo. App.), 179 S. W. 777.
§ 34 FEDERAL EMPLOYERS’ LIABILITY ACT. 64

interstate, it being received from connecting lines originating without the
state and destined to points upon the interurban line.!?

It has been uniformly held by the Supreme Court of the United States
that a commodity is not in interstate commerce until it has entered upon its
final passage to another state or foreign country.1® It follows that the mere
act of mining coal is not interstate commerce because done by an interstate
carrier,!# nor is a carrier engaged in interstate commerce from the fact that
it hauls timber from its forests to the seaboard for sale and manufacture,
which is afterwards shipped to other states or countries.1® On the other
hand, the hauling of a dead engine from one state into another; 1° the mov-
ing of an engine from one state to another, though the movement is for the
purpose of repairs ;17 and the hauling of empty cars from one state to an-
other is interstate commerce within the meaning of the act.1§

However, empty cars though previously engaged in interstate commerce,
lose that character when such use is terminated upon delivery to the owner
at any point on its line, and retain their intrastate character until again
loaded with interstate commerce or started upon an interstate journey.’?
So when empty cars are received from without a state at a distributing
point, from which they are rebilled; such distributing point has been held to
be their final destination in interstate commerce, and their subsequent jour-
ney wholly within the state does not constitute interstate commerce.?°

A railroad when engaged in moving cars of water or coal over its line from

12, Interurban electric road.—Ross

v. Sheldon (Iowa), 154 N. W. 499.

13. Test of commerce is haul from
state to state—Nordgard v. Marys-
ville, etc., R. Co. (D. C.), 211 Fed. 721.

“The beginning of the transit which
constitutes interstate commerce—‘is
defined in Coe v. Errol, 116 U. S. 517,
29 L. Ed. 715, 6 S. Ct. 475, to be the
point or time that an article is com-
mitted to a carrier for transportation
to the state of its destination, or
started on its ultimate passage.’ Gen-
eral Oil Co. v. Crain, 209 U. S. 211,
52 L. Ed. 754, 28 S. Ct. 475.” Nord-
gard v. Marysville, etc, R. Co. (D.
C.), 218 Fed. 737.

14. Acts held not to constitute inter-
state commerce—Mining coal.—Dela-
ware, etc. R. Co. v. Yurkonis, 137 C.
C. A. 23, 220 Fed. 429, 433, dismissed
for want of jurisdiction in 35 S. Ct. 902.

15. Same—Transporting for manu-
facture or sale.——Nordgard v. Marys-
ville, etc., R. Co. (D. C.), 218 Fed. 737,
affirming 211 Fed. 721; Bay v. Merrill,
etc., Logging Co., 136 C. C. A. 277,
220 Fed. 295, affirming 211 Fed. 717.

16. Acts held to constitute interstate
commerce—Hauling dead engine.—At-
lantic Coast Line R. Co. v. Jones, 9
Ala. App. 499, 63 So. 693.

17. Same—Moving engine to repair.
—Chicago, etc., R. Co. v. Wright, 239
U. S. 548, 36 S. Ct. 185.

18. Same—Hauling empty cars.—
North Carolina R. Co. v. Zachary, 232
U. S. 248, 58 L. Ed. 591, 34 S. Ct. 305,
Ann. Cas. 1914C, 159; Pennsylvania R.
Co. v. Knox, 134 C. C. A. 426, 218
Fed. 748; Trowbridge v. Kansas, etc.,
R. Co. (Mo. App.), 179 S. W. 777.

“Such is the view that has obtained
with respect to empty cars in actions
based upon the safety appliance act of
March 2, 1893 (27 Stat. at L. 531, chap.
196, U. S. Comp. Stat. 1901, p. 3174).
Johnson v. Southern Pac. Co., 196 U.
8. 1, 49 L. Ed. 363, 25 S. Ct. 158; Voel-
ker v. Chicago, etc., R. Co. (C. C.),
116 Fed. 867, 873. And the like reason
applies, as we think, to actions founded
upon the Employers’ Liability Act,
which, indeed, is in pari materia with
the other.” North Carolina R. Co. v.
Zachary, 232 U. S. 248, 58 L. Ed. 591,
34 S. Ct. 305, Ann. Cas. 1914C, 159.

19. Pennsylvania R. Co. v. Knox, 134
C. C. A. 426, 218 Fed. 748.

20. Louisville, etc, R. Co. v. Strange,
156 Ky. 439, 161 S. W. 239; Missouri,
etc, R. Co. v. Pace (Tex. Civ. App.),
184 S$. W. 1051.
65  . EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. § 34

one state into another for use in its own engines is engaged in “interstate
commerce,’2° but where the haul is only between two points in the same
state, the fact that the coal was subsequently used on engines engaged in
interstate commerce, would not make the prior hauling interstate com-
merce.21_ And where an electric interurban railway line transfers its cars,
with passengers therein, from its track to the track of a street railway, and
thence transports them over the latter track from one state into another
state, dividing the fare collected for that part of the transportation covering
the street railway tracks, it is a railroad engaged in interstate commerce
within the meaning of the act of congress. The use of the street railway
tracks is no more than the use of a terminal facility.22. And a carrier en-
gaged in interstate commerce cannot be held not to be so engaged when its
tracks are being repaired.22+

In Canadian Pac. Ry. Co. v. Thompson (C. C. A.), 232 Fed. 353, 356, the
court said:

“In all this class of cases, the effort by the defendant corporations has
been to split into fragments what was in fact a unit, and what was in
fact a unitary occupation ‘or enterprise. The Canadian Pacific Rail-
way Company is notoriously and presumably a single enterprise, ex-
tending from the Atlantic Ocean 'to the Pacific Ocean, in part through
the United States, but in the greater part through Canada. Both in the
inherent purposes of the organization, and in its operation, there is one,
single, consolidated, unitary essence; and so far as any person connected
with trains operating thereon, in any way contributed to produce the
result aimed at by the corporation, the corporation was a single, con-
solidated, international, interstate enterprise; and in all its essential as-
pects the train of cars employed in the present case for the present
purpose, connecting, as it did international points, and all the persons
employed on that train, were engaged in an international enterprise and
operation. In this aspect there were no fragments, but all was com-
bined in a consolidated and single purpose.”

The fact that a carrier intends to engage in interstate commerce at some

carriers to their employees while en-

20a. Same—Hauling commodities
gaged in interstate commerce, and

for own use.—Barker v. Kansas City,

etc., R. Co., 88 Kan. 767, 129 Pac. 1151,
43 L. R. A, N. S., 1121; Barlow v. Le-
high Valley R. Co., 214 N. Y. 116, 107
N. E. 814. See also, Chicago, etc., R.
Co. v. Harrington, 36 S. Ct. 517.

“Tt is not practical in determining
the application of the federal or the
state law to distinguish between the
transportation of supplies from one
state to another for the carriers’ own
use and the transportation of merchan-
dise for sale or exchange. Enough
difficulties from conflicting laws and
authorities in the case of carriers en-
gaged in both interstate and intrastate
commerce now exist without unneces-
sarily creating others. Congress has
undertaken to regulate the liability of

Fed Act—5

modern conditions require that all in-
terstate transportation be regarded as
commerce or an agency of commerce,
subject to the federal statute and un-
der the supervision of the federal au-
thorities.’” Barlow v. Lehigh Valley
R. Co., 214 N. Y. 116, 107 N. E. 814.

21. Barker v. Kansas City, etc, R.
Co., 94 Kan. 176, 146 Pac. 358.

22. Same—Use of street railway to
complete interstate journey.—McAdow
v. Kansas, etc., R. Co. (Mo.), 164 S.
W. 188, affirmed in 36 S. Ct. 252. See
in accord, Spokane, etc, R. Co. w.
Campbell, 36 S. Ct. 683.

22a. Same—When making repairs to
track—Canadian Pac. Ry. Co. w.
Thompson (C. C. A.), 232 Fed. 353.
§§ 34-36 FEDERAL EMPLOYERS LIABILITY ACT, 66

future time no matter how proximate, will not make it liable, if not engaged
therein at the time the injury occurred,?? nor does the fact that it stands
ready to engage therein, as by the transportation of interstate passengers, if
none stich were carried at the time.?4

It is a principal to be noted, though not found stated in many cases, that
the carrier may be engaged in interstate commerce without the employee
being so engaged, but when the employee is engaged in interstate commerce,
it necessarily follows that the carrier is so engaged.2> It is thus expressed
in Grybowski v. Erie R. Co. (N. J.), 95 Atl. 764, 765:

“Although in the Pedersen Case it was conceded that the railroad
company was engaged in interstate commerce at the time of
the occurrence of the accident, the principle of the decision would neces-
sarily have compelled such a finding, even in the absence of the conces-
sion, for the plaintiff could not, at the time of the accident, have been
employed by the carrier in such commerce unless the latter at the same
time was engaged therein.”

This is well illustrated by the case of Ruppell v. New York Cent. R. Co.?6
in which it was contended that a switching crew of the defendant was not
employed by it in interstate commerce when they were switching in a com-
mon switching yard, for another company, cars to form an interstate train
but the cars were not owned by the defendant nor were they to be operated
over its line, but the court held that the use of-the defendant’s switching
crew in interstate commerce makes it engaged therein.

§ 35. Operating Leased Road.—A railroad corporation whose tracks
and property lie wholly within a state, is engaged in interstate commerce,
when it leases its tracks and property to a corporation engaged in both inter
end intra state commerce.2* And since a railroad corporation cannot escape
its responsibility by leasing its road, it is liable for its lessee’s acts, under
this statute when they occur in interstate commerce.?8

§§ 36-51. The Employee—§§ 36-40. Employees Constructing or
Repairing Instrumentalities—§ 36. Employees Engaged in Repair-
ing Instrument of Commerce—Generally.—Under a decision of the
Supreme Court of the United States, employees repairing instrumentalities
of interstate commerce, even though such instrumentalities be also used in
intrastate commerce, are deemed to be engaged in interstate commerce, and ;

23. Intent to engage in near future. 26. (App. Div.), 157 N. Y¥. S. 1095.
—Atchison, etc, R. Co. vw. Pitts 27. Where interstate road leased to
(Okla.), 145 Pac. 1148. interstate carrier—North Carolina R.

24. Boyle v. Pennsylvania R. Co. Co. v. Zachary, 232 U. S. 248, 58 L.

(D. C.), 221 Fed. 453, affirmed in 228
Fed. 266;. Watts v. Ohio Valley Elec-
tric Ry. Co. (W. Va.), 88 S. E. 659.

25. Employee engaged in interstate
commerce, carrier necessarily so en-
gaged.—Grybowski v. Erie R. Co. (N.
J.), 95 Atl. 764.

Ed. 591, 34 S. Ct. 305, Ann. Cas. 1914C,
159, reversing 156 N. C. 496, 72 S. E.
858.

28. See ante, “Liability under Traffic
Agreement or between Lessor and
Lessee,” § 58.
67 EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. § 36
within the protection of the federal act, in case they sustain injuries while
so engaged.2® The general rule as laid down by the cases would seem to
reduce itself to two propositions: (1) that when an employee is engaged in
work upon an instrumentality, that belongs to an interstate carrier, and has
a real and substantial connection with its interstate business, he is engaged
in interstate commerce; (2) that where an employee is engaged in transpor-
tation, the cars being moved must themselves be then moved in interstate
commerce or moving passengers or commodities in interstate commerce, in
order for him to be engaged therein.

There is a distinction between employment in preparing an instrument of
commerce for use, and employment in using such an instrument in com-
merce. Preparation of an instrument for use in commerce of both kinds
necessarily means preparation for use in commerce of either kind, and as
one kind is interstate commerce, it follows logically that such preparation
is for use in interstate commerce, but employment connected with the actual
use of such an instrument is a part of intrastate or interstate commerce ac-
cording as the instrument is in use in commerce of one kind or the other.
The preparation for use, and the use of instruments in commerce of both
kinds, are sometimes not easily distinguishable but throughout the cases
there is the underlying idea that work upon instruments of interstate com-
merce and preparation for their use in interstate commerce, are so intimately
and directly related to interstate commerce as to make such work or em-
ployment a part of it. There are other cases, however, which have to do,
not with employment in preparing instrumentalities of commerce for use,
but with employment connected with the actual use of such instrumentalities
in commerce of one kind or the other. In such cases, the law does not hold
employment upon an instrumentality to one kind of commerce, notwith-
standing its double use, but distinguishes between its use in intrastate and
interstate commerce, as of necessity it must, and the courts recognize and
attempt to enforce the distinction? The line of demarcation between re-
pair work, on one hand, and construction work, on the other, is not always
easily discernible. Repair often, if not usually, involves more or less con-

29. Employees engaged in repairing
instruments of commerce—Generally.
—Pedersen v. Delaware, etc. R. Co.,
229 U. S. 146, 57 L. Ed. 1125, 33 S. Ct.
648, Ann. Cas. 1914C, 153, reversing (C.
C. A.), 197 Fed. 537, which affirmed
(C. C.), 184 Fed. 737.

The case of Pierson v. New York,
etc, R. Co. 83 N. J. L. (54 Vr.) 661,
85 Atl. 233, 235, holding that employ-
ees engaged in repairing such instru-
mentalities are not employed in inter-
state commerce is expressly based
upon the authority of the Circuit Court
of Appeals decision in Pedersen vw.
Delaware, etc., R. Co., 117 C. C. A. 33,
197 Fed. 537, and can not be sustained
in the face of the controlling decision

of the. Supreme Court of the United
States reversing the decision of the
Circuit Court of Appeals in the Peder-
sen Case.

The following cases, also based upon
the decision of the Circuit Court of
Appeals in the Pedersen Case, should
be read in the light of the fact that
said decision has been reversed.
Heimbach v. Lehigh Valley R. Co. (D.
C.), 197 Fed. 579; Feaster v. Philadel-
phia, etc, R. Co. (D. C.), 197 Fed. 580;
Granger v. Pennsylvania R. Co. (N.
J.), 86 Atl. 264.

80. Distinction between use of in-
strument, and repair—Boyle v. Penn-
sylvania R. Co. (C. C. A.), 228 Fed.
266, 269, affirming 221 Fed. 453.
§§ 36-37

FEDERAL EMPLOYERS’ LIABILITY ACT. 68

struction and substitution. The trend of the cases thus far decided indicate
that labor and betterment upon an interstate line of railway will not be
deemed as new construction work unless it is clearly such. That is to say,
mere doubt will be resolved in favor of “repair and maintenance.”31 The
cases therefore logically fall into two classes, those where the employee is
constructing or repairing instruments of interstate commerce, and those
where he is actually engaged in transportation; and they will be so consid-
ered.

Where the same man, at the time of his injury, is engaged upon duties
embracing both interstate and intrastate commerce, or is at work upon an
instrumentality used indiscriminately for both intrastate and interstate pur-
poses, he is within the terms of the act, and the court will not undertake to
separate such service into its intrastate and interstate elements and deter-
mine the nature and extent of each without regard to its relation to others
or to the business as a whole. Such an attempt, says the Supreme Court
of the United States, is based upon an erroneous assumption, and the true
test in each case is: Was the work in question a part of the interstate com-
merce in which the carrier was engaged ?8?

§ 37. Employees Repairing Tracks, Bridges, etc., Used in Both
Interstate and Intrastate Traffic.—In keeping with the rule above stated,
employees engaged in repairing tracks, bridges, switches, etc., used for both
internal and interstate traffic are held to be employed in interstate commerce,
and to be within the protection of the federal act in case they sustain injuries

while so employed.?3

31. Distinction between repair and
construction.—Ross v. Sheldon (Iowa),
154 N. W. 499, 501.

32. Instrumentality engaged in both
kinds of commerce—Separating service
into its elements.—Pedersen v. Dela-
ware, etc. R. Co., 229 U. S. 146, 57 L.
Ed. 1125, 33 S. Ct. 648, Ann. Cas. 1914C,
153, Justice Lamar dissenting, revers-
ing (C. C. A.), 197 Fed. 537, which af-
firmed (C. C.), 184 Fed. 737; Eng v.
Southern Pac. R. Co. (D. C.), 210 Fed.
92; Thomas v. Boston, etc., Railroad,
134 C. C. A. 554, 219 Fed. 180, revers-
ing 218 Fed. 143. See, in accord, Cen-
tral R. Co. v. Colasurdo, 113 C. C. A.
379, 192 Fed. 901, affirming 180 Fed.
832; Kelley v. Great Northern R. Co.
(C. C.), 152 Fed. 211.

33. Repairing tracks, bridges, etc.,
used in both interstate and intrastate
traffic—Pedersen 7. Delaware, etc., R.
Co., 229 U. S. 146, 57 L. Ed. 1125, 33
S. Ct. 648, Ann. Cas. 1914C, 153, re-
versing (C. C. A.), 197 Fed. 537, which
affirmed (C. C.), 184 Fed. 737; Central
R. Co. v. Colasurdo, 113 C. C. A. 379,
192 Fed. 901, affirming 180 Fed. 832;
Zikos v. Oregon R., etc., Co. (C. C.),

179 Fed. 893; Jones v. Chesapeake, etc.,
R. Co., 149 Ky. 566, 149 S. W. 951.
Contra.—In view of the decision in
the Pedersen Case, the decision in
Taylor v. Southern R. Co. (C. C.), 178
Fed. 380, in which it was held that a
member of a railroad bridge gang,
whose duties required work in the re-
pair of bridges in different states, and
who was injured while engaged within
the scope of his employment in repair-
ing a bridge on defendant’s main line
by an alleged defective scaffold, was
not employed in interstate commerce,
can not be sustained. Nor that of
Charleston, etc., R. Co. v. Anchors, 10
Ga, App. 322, 73 S. E. 551, in which
it is held that an employee taking up
and relaying rails of the track of an
interstate road is not within the act.
Held question for jury—Where the
plaintiff, a section foreman, was work-
ing with others in taking out rails
from the main line of an interstate
carrier and putting others in their
place, loading those taken out onto a
flat car near by, and was injured while
so loading, it was at least a question
for the jury whether he was employed
69 EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. § 37

Thus an employee repairing a switch in a terminal yard of an interstate
road, over which interstate passenger and freight cars and engines engaged
in interstate commerce were constantly passing, is engaged in interstate
commerce when struck by a car so engaged, while repairing the switch; 34
and a section foreman who is required to keep in order the tracks and
switches of a railroad yard which is used for breaking up, temporary stor-
age, and making up of trains, devoted to interstate as well as intrastate com-
merce, when shortly before the time of the accident which caused his death
was at work repairing switches in the yard, but he had gone to some other
point in the yard for a purpose not shown and in crossing a track was
run down by a switch engine, he was held to be engaged in interstate com-
merce, within the act.35 And so is a section hand when working on similar
tracks who was killed while returning with some tools for which his fore-
man had sent him. A turntable used for both interstate and intrastate
engines is an instrumentality of interstate commerce, and an employee
injured while repairing it is engaged in interstate commerce.3?

The act also applies to a section hand, injured while engaged in repairing
a switch so as not to delay interstate freight and passenger trains,38 and one
killed, while sweeping snow from the switches, to permit interstate trains
to pass.39

The section hands engaged in repairing the main line of an interstate
railroad are employed in interstate commerce.4® A section hand who was
engaged in repairing the defendant’s main track, over which both interstate
and intrastate traffic passed, by driving spikes in the ties for the purpose
of tightening the rails and joints, was held to be engaged in interstate com-
merce and entitled to recover under the federal act for injuries sustained

in interstate commerce within the Fed-
eral Employers’ Liability Act. Cher-
peski v: Great Northern R. Co., 128
Minn. 360, 150 N. W. 1091.

34. Repairing switch or tracks in
yard or _ terminal.—Central R. Co.
v. Colasurdo, 113 C. C. A. 379, 192
Fed. 901, affirming 180 Fed. 832. The
above case and the principle stated
therein has been frequently cited with
approval. Northern Pac. R. Co. vw.
Maerkl, 117 C. C. A. 237, 198 Fed. 1,
5; Lamphere v. Oregon R,, etc., Co.,
116 C. C. A. 156, 196 Fed. 336, 338.

35. Willever v. Delaware, etc. R.
Co. (N. J.), 94 Atl 595.

36. Waina v. Pennsylvania Co.
(Pa.), 96 Atl. 461.
37. Repairing turntable. — Chesa-

peake, etc., R. Co. v. Kornhoff, 167 Ky.
353, 180 S. W. 523.

38. Repairing switch.—Jones v. Ches-
apeake, etc., R. Co., 149 Ky. 566, 149
S. W. 951.

39. Sweeping snow from switches.—
Hardwick v. Wabash R. Co., 181 Mo.
App. 156, 168 S. W. 328.

“It was necessary to the operation
of such commerce that the tracks, over
which people and freight were con-
veyed through different states, should
be kept free from ice and snow so as
to be reasonably safe for trains in
passing over connecting switches.”
Hardwick v. Wabash R. Co., 181 Mo.
App. 156, 168 S. W. 328.

40. Employee repairing main line.—
Zikos v. Oregon R., etc. Co. (C. C.),
179 Fed. 893; Truesdell v. Chesapeake,
etc., R. Co. (Ky.), 169 S. W. 471; Cin-
cinnati, etc, R. Co. vw. Tucker (Ky.),
181 S. W. 940.

“The roadbed and tracks were in-
strumentalities of interstate commerce
under the allegations of the complaint.
The work of maintaining them in
proper condition after they had be-
come such instrumentalities is clearly
within the act.’ Tralich v. Chicago,
etc, R. Co. (D. C.), 217 Fed. 675, 677.
See, also, San Pedro, etc, R. Co. vw.
Davide, 127 C. C. A. 454, 210 Fed. 870;

‘Missouri, etc., R. Co. v. Mooney (Tex.

Civ. App.), 181 S. W. 543.
§ 37 FEDERAL EMPLOYERS’ LIABILITY ACT. 70
through the negligence of a fellow servant also engaged in such commerce,*1
and a person engaged in repairing the tracks of a railroad company is en-
gaged in interstate commerce, even though the repairs consist in shoveling
the dirt from between the ties under the rails of the tracks used to carry
interstate trains,42 as is one employed in operating a steam shovel to re-
move earth from the roadbed and track on an interstate line.4? <A section
hand whose duty it was to assist in the upkeep and repair of the tracks of
an interstate railroad, by running a hand car used in and about his employ-
ment to transport hands, tools and materials for the work, and from time to
time to remove the hand car from the track so as not to obstruct the same, is
engaged in interstate commerce when injured while removing the car from
the track.434

In the Pederson Case, the evidence, as reported in the opinion of the Fed-
eral Supreme Court, was to the following effect: The defendant was oper-
ating a railroad for the transportation of passengers and freight in interstate
and intrastate commerce, and the plaintiff was an iron worker employed by
the defendant in the alteration and repair of some of its bridges and tracks
at or near Hoboken, New Jersey. On the afternoon of his injury the plain-
tiff and another employee, acting under the direction of their foreman, were
carrying from a tool car to a bridge, known as the Duffield bridge, some
bolts or rivets which were to be used by them that night or very early the
next morning in “repairing that bridge,” the repair to consist in taking out
an existing girder and inserting a new one. The bridge could be reached
only by passing over an intervening temporary bridge at’ James Avenue.
These bridges were being regularly used in both interstate and intrastate
commerce. While the plaintiff was carrying a sack of bolts or rivets over
the James Avenue bridge, on his way to the Duffield bridge, he was run
down and injured by an intrastate passenger train, of the approach of which
its engineer negligently failed to give warning. On this statement of facts
the Supreme Court of the United States, three of the justices dissenting,
held that the plaintiff was engaged in interstate commerce at the time of his
injury, and entitled to the benefit of the federal act.44 The law, as it must
now be taken to exist, is thus laid down in the majority opinion:

“Tracks and bridges are as indispensable to interstate commerce by rail-

road as are engines and cars; and sound economic reasons unite with
ere

41. Zikos v. Oregon R., etc., Co. (C.
C.), 179 Fed. 893.

42. Lombardo v. Boston, etc., Rail-
road (D. C.), 223 Fed. 427, 432.

43. Tralich v. Chicago, etc., R. Co.
(D. C.), 217 Fed. 675.

But see Ft. Smith, etc. Co. v7. Ble-
vins, 35 Okla. 378, 130 Pac. 525, which
holds that a petition showing the plain-
tiff at work upon a work train engaged
in ditching the sides of the track and
removing the dirt to fills, does not
state any facts sufficient to constitute

interstate commerce so as to make the
act apply.

43a. Elliott v. Illinois Cent. R. Co.
(Miss.), 71 So. 741.

44, Carrying material used in repair-
ing of bridge—Pedersen v. Delaware,
etc, R. Co, 229 U. S. 146, 57 L. Ed.
1125, 33 S. Ct. 648, Ann. Cas. 1914C,
153, [reversing (C. C. A.), 197 Fed.
537, which affirmed (C. C.), 184 Fed.
737.] Mr. Justice Lamar with whom
concurred Justices Lurton and
Holmes, dissenting.
71

EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. § 37

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 proceeds 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, ma-
chinery, track, roadbed, works, boats, wharves, or other equipment’
used in interstate commerce. But independently of the statute, we are
of opinion that the work of keeping such instrumentalities in a proper
state of repair while thus used is so closely related to such commerce
as to be in practice and in legal contemplation a part of it. The con-
tention to the contrary proceeds upon the assumption that interstate
commerce by railroad can be separated into its several elements, and the
nature of each determined regardless of its relation to others or to 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 com-
merce in which the carrier is engaged ?’’45

And again:

“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.’’46

Answering the contention 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 done some of

the materials to be used therein, the court says:

“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 to haul in interstate commerce.”47

_ The practical effect of the Pedersen Case is to extend, by construction,
the operation of the Act of 1908 until it is nearly or quite as broad in its
scope as the Act of 1906, which was declared unconstitutional as an at-
tempt to regulate that commerce which is wholly internal; thus once again
reminding us of Mr. Justice Daniel, who was of the opinion that the “vortex
of federal encroachment is of a capacity ample enough for the engulfing and
retention of every power,’ and who in an early case voiced his sentiments

with respect thereto in the following language: “For myself, I would never

45. Pedersen v. Delaware, etc, R. S. Ct. 648, Ann. Cas. 1914C, 153, citing
Co., 229 U. S. 146, 57 L. Ed. 1125, 33 the following cases: Lamphere v. Ore-
S. Ct. 648, Ann. Cas. 1914C, 153. gon R., etc. Co., 116 C. C. A. 156, 196

46. Pedersen v. Delaware, etc., R. Fed. 336; Johnson v. Southern Pac. Co.,
Co., 229 U. S. 146, 57 L. Ed. 1125, 196 U. S. 1, 21, 49 L. Ed. 363, 371, 25
33 S. Ct. 648, Ann. Cas. 1914C, 153. S. Ct. 158; Horton v. Oregon-Wash-
' 47. Pedersen «7. Delaware, etc, R. ington R., etc, Co., 72 Wash. 503, 130
Co., 229 U. S. 146, 57 L. Ed. 1125, 33 Pac. 897.
§ 37 FEDERAL EMPLOYERS’ LIABILITY ACT. 72
hunt with the lion. I would anxiously avoid his path; and as far as possi-
ble keep him from my own; always bearing in mind the pregnant reply told
in the Apologue as having been made to his gracious invitation to visit him
in his lair; that although in the path that conducted to its entrance, innumer-
able footprints were to be seen, yet in the same path there could be dis-
cerned ‘Nulla vestigia retrorsum.’’§

An engineer of an interstate railroad who was engaged in hauling gravel
for use in repairing or improving the roadbed over which interstate com-
merce regularly passed is engaged in interstate commerce.?® And an assist-
ant foreman of a gang on a work train of an interstate road is engaged in
interstate commerce when injured, when at the time he was engaged in re-
moving old rails, that had been replaced by new ones upon the main line of
the defendant company.®® So too, a conductor or a brakeman running
trains between a point in the state of Maine and points in Canada is engaged
in interstate commerce, where the train on which he was engaged was es-
pecially set up for and engaged in gathering up rails from interstate tracks,
to be taken to other parts of the interstate tracks; and this was being done
without any suggestion that they were to be left at intrastate points.5°?

If, as is held in the Pedersen Case, one carrying materials to repair a
bridge used for both interstate and intrastate traffic is engaged in interstate
commerce, one actually repairing a bridge is equally so.51_ Thus a bridge
repairer engaged in knocking bolts from timbers taken from a bridge on an
interstate railroad that had been replaced by a new one, so that the old tim-
bers could be loaded on cars and used to repair other bridges is engaged in
interstate commerce, when injured by the timbers rolling down an embank-
ment.544 And an employee engaged in moving rubbish from around an
abutment of a bridge which had been damaged by a freshet, so that piles
could be driven to support it sufficiently to admit of the passage of trains,
and permit its permanent repair was engaged in interstate commerce, when
the railroad was engaged in the same and the bridge was used to transport
such commerce.5?

An employee engaged in inspecting the main line tracks of a carrier en-
gaged in interstate commerce comes under the federal act.53 Distinguishing

48. Marshall v. Baltimore, etc. R. —Thomson v. Columbia, etc. R. Co.

Co., 16 How. (U. S.), 314, 347, 14 L.
Ed. 953.

49. Engineer hauling gravel to re-
pair track.—Holmberg v. Lake Shore,
etc., R. Co. (Mich.), 155 N. W. 504.

50. Employees removing old rails
after repair—Philadelphia, etc., R. Co.
v. McConnell (C. C. A.), 228 Fed. 263.

50a. Canadian Pac. Ry. Co. v. Thomp-
son (C. C. A.), 232 Fed. 353, 356.

The contrary was held in Illinois
Cent. R. Co. v. Kelly, 167 Ky. 745, 181
S. W. 375, respecting an ordinary la-
borer.

51. Repairing bridge—United States.

(D. C.), 205 Fed. 203.

Kentucky.—Louisville, etc., R. Co. v.
Walker, 162 Ky. 209, 172 S. W. 517..

Missouri—McIntosh v. St. Louis,
etc., R. Co. (Mo. App.), 168 S. W. 821.

5la. Long v. Lusk (Ark.), 186 S.
W. 601.

52. Removing debris to facilitate re-
pair.—Columbia, etc. R. Co. v. Sauter
(C. C. A.), 223 Fed. 604.

53. Employee inspecting track.—Louis-
ville, etc., R. Co. v. Kemp, 140: Ga. 657,
79 S. E. 558; Anest v. Columbia, etc.,
R. Co. (Wash.), 154 Pac. 1100.

Though the evidence makes a ques-
73 EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. § 37
the case from that of an employee at times engaged in interstate and at
other times in intrastate commerce in Anest wv. Columbia, etc., R. Co.
(Wash.), 154 Pac. 1100, 1102, the court said:

“In the present case there could be no possible separation of decedent’s
inspection of appellant’s track for the purpose of its intrastate com-
merce and of its interstate commerce. The two were obviously con-
comitant. His inspection was for the purpose of aiding and assisting
the appellant in the operation of its trains, cars, and locomotives, and
the carrying on of its business both of interstate and intrastate com-
merce.”

In Louisville, etc., R. Co. v. Kemp,5# the injured employee was foreman
of a force of section hands in charge of a section of defendant’s railroad.
His duties required him to inspect and maintain the tracks and roadway
upon his section, over which trains engaged in both interstate and intrastate
commerce were accustomed to run. While on a tour of inspection of the
tracks he was confronted with an emergency produced by the sudden ap-
pearance of a freight train carrying interstate freight, and, in an effort to
remove the hand car on which he was riding from the track and avoid the
impending danger to himself and his hand car, as well as to the freight
train, he was injured. Following the decision in the case of Pedersen wv.
Delaware, etc., R. Co.,55 it was held that the plaintiff, at the time of receiv-
ing the injury complained of, was engaged in interstate commerce.

An employee repairing a telegraph line owned by a road engaged in inter-
state commerce and by the operation of which such commerce is controlled
and directed, is engaged in interstate commerce.®® On affirming this case
in Coal, ete., Ry. Co. v. Deal (C. C. A.), 231 Fed. 604, 607, the court said:

“The Supreme Court having declared that one who is injured while car-
rying spikes to be used in repairing a bridge over which interstate com-
merce is transported is deemed to be engaged in interstate commerce
within the meaning of the act, it necessarily follows that, as in this in-
stance, where one is injured while attempting to erect a telegraph pole
to be used for the purpose of supporting wires over which messages are
to be sent in directing the operation of trains in order that a company
engaged in interstate commerce may safely operate its trains, such per-
son is engaged in interstate commerce within the meaning of the act.”

An employee, who as an electric signal man, engaged in duties which re-
quired him to keep in proper order and repair all of the electric signals
used in directing and controlling the operation of interstate and intrastate

terstate train. Lynch v. Central Ver-
mont R. Co. (Vt.), 95 Atl. 683.
54. 140 Ga. 657, 79 S. E. 558.

tion for the jury they may very prop-
erly infer that a division road master,

whose duty was to look after a track
carrying interstate commerce, to see
that it was kept in a safe condition for
travel, is engaged in interstate com-
merce while inspecting the repairs he
had ordered the conductor to make to
a brake beam of the caboose of an in-

55. 229 U. S. 146, 57 L. Ed. 1125, 33
S. Ct. 648, Ann. Cas. 1914C, 153.

56. Repairing telegraph line.——Deal
v. Coal, etc., R. Co. (D. C.), 215 Fed.
285.
§ 37 FEDERAL EMPLOYERS’ LIABILITY ACT. 74
commerce between two points on an interstate railroad, comes within the
provisions of the act.5* And where decedent was engaged by an interstate
carrier in putting additional cross arms upon poles used to suspend tele-
graph, block signal, power and feed wires, when the intended use of such
additional cross arms was to carry five signal wires in addition to the one
already carried, so that the signal system could be operated automatically
instead of by hand, is an employee engaged in the repair and maintenance
of instrumentalities of interstate commerce and is covered by the provisions
of the federal act.58

An employee framing a new office in a freight shed,®® or in repairing the
pumphouse and pumping station,®° or in rebuilding a roundhouse,*! of an
interstate road, when the same are used for both interstate and intrastate
commerce is engaged in interstate commerce. ‘Thus in the case last cited
allegations “that [on the alleged day of the injury] said roundhouse was
partially damaged by fire, in consequence whereof it became necessary for
said defendant for the conduct of its interstate commerce to tear down so
much thereof as was damaged by fire and to rebuild the same, and that
said defendant * * * was undertaking to tear down and rebuild said
roundhouse, with the intent and for the purpose of again using the same
in such interstate commerce; that said plaintiff was then and there employed
* -* * on said work,” may fairly be taken as alleging that the damage
which the plaintiff was repairing was partial damage to the structure, tempo-
rarily suspending its former regular use, instead of damage requiring its
complete removal, in order to permit the construction of a wholly new struc-
ture to begin. So construed, the declaration states a case within the act.®?

It is manifest, that engines are a necessary part of interstate commerce,
and clearly such commerce cannot be properly or efficiently maintained un-
less those engines are kept in proper repair; plainly they cannot
be kept in proper repair without well-equipped and ample repair
shops; when those repair shops become inadequate or insufficient to promptly
and efficiently keep the engines so engaged in interstate commerce in proper
repair, and it becomes necessary to extend or build additions to said shops

57. Repairing and maintaining elec-
tric signals —Cincinnati, etc., R. Co. v.
Bonham, 130 Tenn. 435, 171 S. W. 79.

58. Employee changing signals from
hand to automatic—Ross v. Sheldon
(Iowa), 154 N. W. 499.

59. Repairing freight sheds and
roundhouses.—Eng v. Southern Pac.
Co. (D. C.), 210 Fed. 92.

“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 em-
ployed to construct 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 the complaint, was in
the nature of the repair of an instru-
mentality so used, and not the con-
struction of new work.” Eng v.
Southern Pac. Co. (D. C.), 210 Fed. 92.

60. Repairing pumphouse.—Newkirk

» Pryor (Mo. App.), 183 S. W. 683.

“61. Thomas vv. Boston, etc., Railroad,
134 C. C. A. 554, 219 Fed. 180, revers-
ing 218 Fed. 143.

62. Repair or enlargement of round-
house or repair shops.—Thomas v.
Boston, etc., Railroad, 134 C. C. A. 554,
219 Fed. 180, reversing 218 Fed. 143.
75 EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. § 37

and install new machinery and appliances therein to the end that the repair
work may be more promptly and efficiently done, does not it necessarily fol-
low that one so engaged in this work of extension is working in aid and
furtherance of interstate commerce? The nuts and bolts in the Pedersen
Case were necessary to keep in repair the bridge being used in interstate
commerce; the extension in this case was necessary to keep in repair and
to promptly and efficiently repair engines engaged in such commerce.*? So
an employee engaged in enlarging a repair shop used in interstate commerce
is himself engaged in interstate commerce.*¢ And the holding in this case
that an employee enlarging a repair shop is engaged in interstate commerce
is further strengthened by the fact that the extension was already completed
to an extent permitting of its use.° In Thompson v. Cincinnati, etc., R.
Co., 165 Ky. 256, 176 S. W. 1006, 1009, the court said:

“The question is: Was the extension to the repair shops wholly a new
instrumentality, designed to be used in the future in aid and further-
ance of interstate commerce, but which had not yet been put to such
use, or was it merely an addition to or repairing of an instrumentality
already in such use? There can be no doubt that if it had been an
original structure intended to be used as an instrumentality of interstate
commerce, but which had never been actually put to such use, the fed-
eral act could not be invoked. But here we have a very different state
of case. The distinction between the erection of an original structure
intended to be used as a repair shop for engines engaged in interstate
commerce, but which has not yet been put to that use, and the erection
of an extension or addition to a building which is already being used
as such repair shop, is apparent. The one is an original undertaking
which has not yet been impressed with its characteristic as an instru-
mentality of interstate commerce, while the other is merely an annex
to or enlargement of a building being already so used, and from its
very inception is necessarily looked upon and regarded as a part of and
impressed with the nature of the parent structure. No matter how
large the extension or addition, if it is to be used in the same business
and forms a part of the original building, and is to be used in connec-
tion with the work done therein, it is nothing more than a repairing of
that building that the work may be more efficiently and promptly exe-
cuted; and if the old structure is already in use as an instrumentality
of interstate commerce, necessarily any repairing or extension designed
to make it more effective as such an instrumentality is a work in further-
ance of or aid to interstate commerce.”

The depots of a railway company engaged in interstate commerce consti-
tute a part of the equipment of the company used in such commerce. An
outhouse at a depot is a mere appendage thereto; and a member of a crew
engaged in transporting a new one to a depot already in use for interstate
traffic, for the purpose of installing it to take the place of an old one previ-

63. Thompson 7. Cincinnati, etc., R. 65. Same—Repairs in use.—Thomp-
Co., 165 Ky. 256, 176 S. W. 1006, 1009. son v. Cincinnati, etc., R. Co. 165 Ky.
64. Thompson v. Cincinnati, etc, R. 256, 176 S. W. 1006, 1008.
Co., 165 Ky. 256, 176 S. W. 1006.
8§ 37-38 FEDERAL EMPLOYERS LIABILITY ACT. 76

ously erected at such depot, is within the protection of the federal act.®¢

§ 38. Original Construction of Instrumentalities.—Relating to this
point is the following excerpt from the majority opinion in Pedersen v.
Delaware, etc., R. Co.,67 where the court said:

“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 maintaining them in proper
condition after they have become such instrumentalities and during their
use as such,’’68

The plain intimation of this language is that employees engaged upon the
original construction of such instrumentalities, and before they have been
used in interstate commerce, are not employed in such commerce. It has
been subsequently so decided.

It follows that employees engaged in constructing a tunnel,’° or a bridge
on a cut-off,” are not engaged in interstate commerce. So too, an employee
of a railroad engaged in interstate commerce, working in an excavation,
under a wooden trestle on which the employer’s track crosses a small
stream and near supporting timbers thereof, intended for an abutment of
a steel bridge to take the place of the trestle and to be used in lieu thereof
when completed, and not repairing or altering the trestle nor otherwise en-
gaged in work on it, or the track, or anything else actually used in the opera-
tion of the railroad, is not within the protection of this statute, and for his
death occasioned by negligence of his employer no recovery can be had un-
der or by virtue thereof. His right of action arises under the state statute
giving damages for death by wrongful act.7?

One employed by an interstate carrier in constructing a new track, parallel

66. Adding outhouse to depot in

h C terstate transportation.” Ruck v. Chi-
use——Nash v. Minneapolis, etc, R.

Co. (Minn.), 154 N. W. 957.

67. 229 U. Si 146, 57 L. Ed. 1125, 33
S. Ct. 648, Ann. Cas. 1914C, 153.

68. Original construction of instru-
mentalities, Pedersen v. Delaware,
etc, R. Co, 229 U. S. 146, 57 L. Ed.
1125, 33 S. Ct. 648, Ann. Cas. 1914C,
153.

69. Bravis v. Chicago, etc, R. Co.,
133 C. C. A. 228, 217 Fed. 234; Chi-
cae; Ft etc., R. Co. uv. Steele (Ind.), 108

“We es the conclusion that the
employee is not employed by the car-
rier in interstate commerce where he
is engaged in constructing or repairing
an appliance, which appliance may
thereafter be used to facilitate intra-
state or interstate transportation as
occasion may require and is intended
for such use, but is not at the time the
repairs in question are being made in
use for the purpose of facilitating in-

cago, etc., R. Co., 153 Wis. 158, 140 N.
W. 1074.

70. Employees constructing new
track.—Jackson v. Chicago, etc., R. Co.
(D. C.), 210 Fed. 495.

71. Bravis uv. Chicago, etc, R. Co.,,
133 C. C. A. 228, 217 Fed. 234.

“There was no error in the ruling
of the trial court that an employee en-
gaged in the construction of a bridge,
600 feet distant from a railroad, on a
cut-off more than a mile in length,
which had never been provided with
rails or used as a railroad, was not em-
ployed in interstate commerce, al-
though his employer was engaged, and
when the cut-off should be completed
intended to use it, in interstate com-
merce.” Bravis v. Chicago, etc, R.
Co. 183 C. C. A. 228, 217 Fed. 234.

72. Same—Employee working on ex-
cavation for new bridge—McKee v.
Ohio Valley, etc., R. Co. (W. Va.), 88
S. E. 616.
77 EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. § 38
to an interstate one, is not engaged in interstate commerce.73

This covers an employee of a train crew employed on a work train en-
gaged in hauling railroad ties for distribution along the right of way, which
ties were intended to be used on a proposed second track. The grade was
not then finished. The work train moved along the rails of the existing track,
which was then used in interstate commerce, and the ties were thrown to the
side along the line of the new grade. The operation of the work train was
wholly intrastate, and no part of the proposed track had been used for any
purpose, but when the same might have been completed it was intended by
appellant to use the same in interstate commerce."#

However, where plaintiff was engaged in repairing tracks, the fact that
they had not been opened to interstate commerce did not conclusively show
that they had not been used therein and where there was evidence that two
interstate trains had used them for the purpose of tying up and resting,
this was sufficient to present the question to the jury upon their interstate
use.75

The rule also applies to the original construction of buildings, as round-
houses, freight shed, etc.,7° though in the cases cited the work was more
in the nature of repair, than original construction.

However it has been held that an employee at work upon the original in-
stallation of a block signal system is an employee engaged in interstate com-
merce.77 Though one of the decisions cited refuses to see “room for any
middle ground by making a new test, was the particular thing on which
the employee was engaged completed or uncompleted, or was it at the
moment the injury was inflicted in actual use?’ 78 Yet it seems to come, as
thought by the court, under the rule relating to repairs; on the ground
that such a system was “attached to and operated in connection with” the
track then used in interstate commerce, in justification of which in Grow v.
Oregon, etc., R. Co., 44 Utah 160, 138 Pac. 398, Ann. Cas. 1915B, 481, the
court said:

“We think the rule announced in the Pedersen Case,7® is decisive
of the question here. If, as there announced, an employee en-
gaged in repairing a car, engine, or track, or constructing or repairing
a switch or bridge along a track used in interstate commerce, is, within
the meaning of the act, employed in stich commerce, then, do we think,

Pac. R. Co. (D. C.), 210 Fed. 92;
Thompson v. Cincinnati, etc., R. Co.,

73. Employee constructing parallel
track.—Chicago, etc., R. Co. v. Steele

(Ind.), 108 N. E. 4.

74. Chicago, etc, R. Co. v. Steele
(Ind.), 108 N. E. 4.

75. Same—Question for jury.—Clark
v. Chicago, etc., R. Co. (Iowa), 152 N.
W. 635.

76. Construction of roundhouses, and
freight sheds.—Thomas v. Boston, etc.,
Railroad, 134 C. C. A. 554, 219 Fed. 180,
reversing on application of rule to
facts, 218 Fed. 143; Eng v. Southern

165 Ky. 256, 176 S. W. 1006.

77. Employee installing block signal
system.—Saunders v. Southern R. Co.,
167 N. C. 375, 83 S. E. 573; Grow vw.
Oregon, etc., R. Co., 44 Utah 160, 138
Pac. 398, Ann. Cas. 1915B, 481.

78. Grow v. Oregon, etc., R. Co., 44
Utah 160, 138 Pac. 398, Ann. Cas. 1915B,
481.

79. 229 U. S. 146, 57 L. Ed. 1125, 33
S. Ct. 648, Ann. Cas. 1914C, 153.
§§ 38-39 FEDERAL EMPLOYERS’ LIABILITY ACT. 78

was the deceased here also employed in such commerce. The defendant
confessedly was engaged in interstate commerce, * * * using its
track and line of railway for such purpose. * * * For the better
conduct of such commerce and the moving of such traffic, and to pro-
mote the safety of employees in operating interstate trains and of pas-
sengers transported from state to state, it was necessary, or, at least,
desirable, to equip its line of railway with block signals. For that pur-
pose were they installed. They are not separate and apart from the
track, something operated independently of it, or independently of the
interstate commerce in which the defendant was engaged, but are, in a
sense, a part and parcel of the track itself, something attached to, and
operated in connection with it in carrying on such commerce.”

And it has been held that a signal repairman, drilling holes in the ends of
rails of a track used for interstate commerce, for the purpose of utilizing
the rails in connection with a new signal system is engaged in interstate
commerce so that a suit under the act may be maintained for his death.8?

§ 39. Employees in Repair Shops.—The mere fact that one is em-
ployed in a repair shop where cars and engines engaged in both interstate
and intrastate commerce were repaired does not make him an employee in
interstate commerce.8!_ Though it has been held that an employee, injured
by the negligence of his fellow servants while engaged in wheeling a barrow
of coal to heat the shop in which other employees were engaged in making
repairs to cars that had been and were to be used in carrying interstate com-
merce, is, at the time of his injury, engaged in and employed by the defendant
in interstate commerce, and entitled to the benefits of the federal act ;8? but
generally in order for such an employee to come within the act, he must at
the time he was injured have been engaged in the repair of an engine or
car used in interstate commerce, or indiscriminately in interstate or intra-
state commerce.’ Thus an employee engaged in repairing an engine in de-
fendant’s roundhouse, which engine for some time before and immediately
prior to the plaintiff’s injury had been used in hauling both intrastate and
interstate commerce and which was likewise used immediately afterwards,
is employed in interstate commerce and the federal act applies.8+

80. Glunt v. Pennsylvania R. Co., 249
Pa. 522, 95 Atl. 109.

81. Shanks v. Delaware, etc., R. Co.,
214 N. Y. 413, 108 N. E. 644, affirmed
in 36 S. Ct. 188.

82. Employee wheeling coal to heat
shop.—Cousins v. Illinois Cent. R. Co.,
126 Minn. 172, 148 N. W. 58.

“That the men engaged in repairing
the cars were employed in interstate
commerce is well settled. That an em-
ployee carrying materials to the shop
to be used in repairing the cars would
be employed in interstate commerce
the Pedersen Case decides. It seems
no extension of the construction thus
given to the statute to hold that an em-
ployee carrying coal for use in heat-

ing the shop where the repairs were
made is employed in interstate com-
merce. The repairs could not be made
unless the shop was heated. It is
not material what our own views are
on the proper construction of the fed-
eral statute. We are bound by the de-
cisions of the Supreme Court of the
United States. We think the Peder-
sen Case controls the case at bar.”
Cousins 7 Illinois Cent. R. Co., 126
Minn. 172, 148 N. W. 58.

83. Repairing car or engine in shops,
roundhouse, or yards.—Missouri, etc.,
R. Co. v. Denahy (Tex. Civ. App.), 165
S. W.. 529.

84. Winters v. Minneapolis, etc. R.
Co., 126 Minn. 260, 148 N. W. 106.
79 EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. § 39

«A truck builder and repairer while repairiag in the defendant’s roundhouse
a yard locomotive temporarily withdrawn from service but which when in
use handled both inter and intrastate cars, is an employee engaged in inter-
state commerce within the act.85 And an employee working in switch or
terminal yards as a machinist, his duty being to repair the switch engines
in the yards, when sent by his superior officer to repair the whistle-rod on
an engine engaged in switching and handling interstate commerce, was at
the time of the accident engaged in interstate commerce.8* An employee,
is engaged in interstate commerce within the meaning of the federal act
who was injured while repairing in the shop of and for an interstate rail-
road, a car used indiscriminately in both interstate and intrastate commerce,
and intended after such repairs to be placed again in the same service.8" It
appeared from the evidence in the Maerkl Case that the place where the re-
pairing was done was on the main line of the defendant company between
Tacoma, Wash., and Portland, Ore., and was connected with it by switches
over which the cars needing repairs were run, and over which, after repair-
ing, they were again put into the service of the company for use in interstate
and intrastate commerce as occasion required. It was agreed that the par-
ticular car upon which the deceased 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. Commenting upon these facts,
the court said:

“That a car so used is one of the instruments of interstate commerce does
not admit of doubt. * * * It is equally plain, we think, that those en-
gaged in the repair of such a car are as much engaged in interstate com-
merce as the switchman who turns the switch that passes the car from
the repair shop to the main track to resume its place in the company’s
system of traffic, or any of the operatives who thereafter handle it in such
traffic.”’88

An employee engaged in assisting to repair an engine which had been reg-
ularly used for interstate transportation and as soon as the repairs were
completed again so used, is engaged in interstate commerce within the mean-
ing of the act, notwithstanding there was an interval of twenty-three days
required for repairs.8® On the question of time that the engine was with-
drawn from interstate commerce in Law v. Illinois Cent. R. Co., 126 C. C.
A. 27, 208 Fed. 869, the court said:

“Were the repairs being made in the roundhouse between two regular
daily trips, the engine, while under such repair would clearly not lose its

85. Southern Pac. Co. v, Pillsbury, 88. Northern Pac. R. Co. v. Maerkl,

170 Cal. 782, 151 Pac. 277.

86. Staley v. Illinois Cent. R. Co.,
268 Ill. 356, 109 N. E. 342, 343, L. R.
A. 1916A, 450.

87. Northern Pac. R. Co. v. Maerkl,
117 C. C. A. 237, 198 Fed. 1. See, also,
Lamphere 7. Oregon R., etc., Co., 116
Cc. C. A. 156, 196 Fed. 336, 339.

117 C. C. A. 237, 198 Fed. 1, 5, citing
Interstate Commerce Commission v.
Illinois Cent. R. Co., 215 U. S. 452,
474, 54 L. Ed. 280, 30 S. Ct. 155.

89. Length of time to repair as affect-
ing character of instrumentality—Law
v. Illinois Cent. R. Co., 126 C. C. A.

27, 208 Fed. 869.
§ 30 FEDERAL EMPLOYERS’ LIABILITY ACT. 80

character as an instrumentality of commerce; and plaintiff, in such case,
would have been engaged in interstate commerce. We have not here a
case of original construction of an engine not yet become an instrumen-
tality of interstate commerce. It had already been impressed with such
use and with such character. Its preservation as such was not a matter of
indifference to defendant, so far as its interstate commerce was con-
cerned. See Pedersen v. Delaware, etc., R. Co., 229 U. S. 146, 57 L.
Ed. 1125, 33 S. Ct. 648, Ann. Cas. 1914C, 153. Under the existing
facts, can the length of time required for the repairs change the legal
situation? If so, where is the line to be drawn? How many days
temporary withdrawal would suffice to take it out of the purview of
the act? And is it material whether the repairs take place in a round-
house or in general shops? Is not the test whether the withdrawal is
merely temporary in character? As held in the Pedersen Case, the
work of keeping the instrumentalities used in interstate commerce
(which would include engines) in a proper state of repair while thus
used is ‘so clearly related to such commerce as to be in practice and in |
legal contemplation a part of it.”

Contrary to the foregoing cases is that of Parsons v. Delaware, etc., Co.,
in which it is held that an employee at work in the shops upon a car used
indiscriminately for interstate or intrastate commerce is not employed in
interstate commerce so as to come within the act. This case follows Illinois
Cent. R. Co. v. Behrens,®! which lays down the rule that the work at the
time is a test to determine its character, and the car in this case not having
been shown to have been used in interstate commerce just prior to coming
to the shops and that it was so used immediately upon its re-entering the
service was purely accidental. It is distinguished from Pederson v.
Delaware, etc., R. Co.,92 on the ground that the employee was required to
perform any work that came to the shop and that the shop and tracks lead-
ing into them were not used as an agency of interstate commerce as such.
But this case, as well as San Antonio, etc., R. Co. v. Littleton,9? in which
it is held that an employee engaged in repairing a car of an intrastate road
who was killed, a suit by his widow comes under the state law and not
under the federal act, where though it was shown that the car was used in-
discriminately, it is not shown how long it had been set aside for repairs nor
when again placed in use or the character of commerce when it was again
used, ignore the distinction that it is only necessary that the cars be actually
engaged in interstate commerce when they are being moved commercially, and
that in their repair it is sufficient if they are used indiscriminately.

But the courts have limited the extent of the statute to the repair of in-

90. Contrary ruling—1i67 App. Div. is not engaged in interstate commerce

536, 153 N. Y. S. 179. : so as to exclude the operation of the
See, also, Okrzsezs v. Lehigh Valley State Workmen’s Compensation Law.
R. Co. (App. Div.), 155 N. Y. S. 919, 91. 233 U. S. 473, 58 L. Ed. 1051, 34

in which it is held that an employee in- S. Ct. 646, Ann. Cas. 1914C, 163.

jured in the defendant's repair shop 92. 229 U. S. 146, 57 L. Ed. 1125, 33
while engaged in repairing a car used S. Ct. 648, Ann. Cas. 1914C, 153.

in intra and interstate commerce both 93. (Tex. Civ. App.), 180 S. W. 1194.
prior and subsequent to the accident y
81 EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. § 39
struments of interstate commerce, and it is held not to extend to the repair
of an instrumentality used to repair instruments of interstate commerce,®*
or the preparation of material which may be subsequently so used.9® Thus
an employee injured while repairing an engine, not engaged in interstate
commerce, except that it hauled a work train engaged in repairing the main
line track of an interstate carrier, is not himself engaged in interstate com-
merce so as to sue under the federal act.9* And an employee engaged in
repairing a boiler which was a part of the equipment of a wrecking train,
used at any point on an interstate road that a wreck should occur, but at the
time of the repair had been removed from the flat car on which it belonged
and placed in a roundhouse near by, was not while making such repairs en-
gaged in interstate commerce.®* An employee, is not engaged in interstate
commerce so as to maintain a suit under the act, when at the time he was
killed he was in charge of one of defendant’s work trains; his particular
duty with such train being to load ties from various places along a branch
line where they had been left by the persons who had cut them, and to take
the cars so loaded to a siding, from which place of deposit the ties would
later be taken by other trains to the defendant’s tie-treating plant, whence,
after treatment to increase their durability, they would be sent to various
points upon the main line or branches of the appellant or its affiliated com-
panies within or without the state as might be required for construction,
renewals, or repairs.°8 And an employee altering the location of a fixture
in a machine shop, the only connection which it had to interstate transporta-
tion being that it was used to communicate power to machinery used in re-
pairing parts of engines some of which were used in interstate commerce,
was remote at best, and too remote as to be practically a part of it, and
therefore does not come under the act.99 In Shanks v. Delaware, etc., R.
Co., 239 U. S. 556, 36 S. Ct. 188, 190, the court said:

“Coming to apply the test to the case in hand, it is plain that Shanks was
not employed in interstate transportation, or in repairing or keeping in
usable condition a roadbed, bridge, engine, car, or other instrument then
in use in such transportation. What he was doing was altering the lo-
cation of a fixture in a machine shop. The connection between the
fixture and interstate transportation was remote at best, for the only
function of the fixture was to communicate power to machinery used

¢4, Limitation of doctrine—Repairing 97. Repairing boiler of wrecking train.

instrument or getting out material
used to repair other instrumentality.—
Shanks v. Delaware, etc. R. Co. 239
U. S. 556, 36 S. Ct. 188; Louisville,
etc., R. Co. v. Carter (Ala.), 70 So. 655.

95. Alexander v. Great Northern R.
Co. (Mont.), 154 Pac. 914; Sullivan v.
Chicago, etc., R. Co. (Wis.), 158 N.
W. 321. %

96. Repairing engine of work train.—
Louisville, etc., R. Co. v. Carter (Ala.),
70 So. 655.

Fed Act—6

—Ruck v. Chicago, etc. R. Co., 153
Wis. 158, 140 N. W. 1074.

98. Employees hauling ties not for
immediate use.—Alexander v. Great
Northern R. Co. (Mont.), 154 Pac. 914,
915.

99. Employee altering fixtures in
shop.—Shanks v. Delaware, etc., R. Co.
239 U. S. 556, 36 S. Ct. 188.
§§ 39-40 FEDERAL EMPLOYERS’ LIABILITY ACT. 82

in repairing parts of engines some of which were used in such trans-
portation. This, we think, demonstrates that the work in which Shanks
was engaged, like that of the coal miner in the Yurkonis Case, was too
remote from interstate transportation to be practically a part of it, and
therefore that he was not employed in interstate commerce within the
meaning of the Employers’ Liability Act.”

§ 40. Repairing Interstate Cars in Transit Awaiting Transfer, or
Return.—The judgment in the Second Employers’ Liability Cases! disposes
of three cases involving the application of the act. In one of
the cases (Walsh v. New York, New Haven, etc. R. Co.), the judg-
ment in which was affirmed, the action was brought and damages were re-
covered by a personal representative of a deceased employee of a railroad
company. The complaint alleged that the injury occurred while the defend-
ant as a common carrier was engaged in commerce between some of the
states, and while the deceased in the course of his employment by the de-
fendant in such commerce was engaged in replacing a drawbar on one of
the defendant’s cars then laden with interstate commerce in transit and, of
course, in use in such commerce. The statement of the facts is meager,
but it would appear therefrom that the employee who was injured was not
one of a train crew, but was a machinist or repairer whose duty it was to
1eplace drawbars, and that the work was done either in a yard or on a
switch, for the injury resulted from the negligence of a fellow servant in
pushing other cars against the one on which the deceased was working.
On this state of facts, the Supreme Court of the United States declared
that the decedent was engaged in interstate commerce at the time of his
death, and that the cause of action which accrued therefrom was properly
prosecuted under the Employers’ Liability Act.?

In line with this decision is Lorick v. Seaboard, etc., Railway,? in which
it is held that an employee engaged in raising a coupler to its standard
height on a car that was in interstate transit but temporarily stopped- for

1. Repairing interstate cars in transit.
—Second Employers’ Liability Cases,
223 U. S. 1, 56 L. Ed. 327, 32 S. Ct.
169.

2. See Second Employers’ Liability
Cases, 223 U. S. 1, 56 L. Ed. 327, 32 S.
Ct. 169; Great Northern Ry. Co. v.
Otos, 239 U. S. 349, 36 S. Ct. 124;
Rich v. St. Louis, etc., R. Co., 166 Mo.
App. 379, 148 S. W. 1011, 1013; Lamp-
here v. Oregon R., ete, Co. 116 C.
C. A. 156, 196 Fed. 336, 339,

“We are of the opinion that at the
time of plaintiff's injury this defective
car was in transit and was being used
in interstate commerce. A car in proc-
ess of transportation from one state
to another is usually in transit and en-
gaged in commerce from the time it
is started upon its passage until the de-
livery of its cargo at the place of des-
tination. United States v. Colorado,

etc, R. Co., 85 C. C. A. 27, 157 Fed.
321,15 L. R. A., N. S., 167, 13 Am. &
Eng. Ann. Cas. 893. It is not taken
out of commerce because in need of
repair, nor because of a purpose to re-
pair it, nor because of a design to set
it upon a repair track in due course
for that purpose. * * * At the time
of the accident it was still part of an
interstate train. Its cargo had not
reached its destination and was not
ready for delivery to the consignee.
It was attached to and was being
moved with another interstate car,
from which it was in due course being
uncoupled. Clearly the defective car
was in transit and was being used in
interstate commerce.” Otos v. Great
Northern R. Co., 128 Minn. 283, 150 N.
W. 992, affirmed in 239 U. S. 349, 36
S. Ct. 124.
3. (S. C.), 86 S. E. 675,
83 EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. § 40

repairs before being turned over to a connecting carrier is engaged in inter-
state commerce. And a car being returned to another state after delivery
of an interstate shipment is still engaged in interstate commerce, though set
on a side track for repairs, and an employee injured while making the same
comes within the act.4

And an employee engaged in making “running repairs,” who is injured
while repairing the brake shoe of a locomotive tender, is engaged in inter-
state commerce, when the locomotive and tender upon which he was work-
ing were habitually and regularly used by the defendant in interstate com-
merce, the locomotive having completed an interstate trip in the morning,
was at its usual place upon a “fire track,’ and was to make another inter-
state trip in the afternoon, it not appearing that in this interval it was used
for any other purpose.® The court in this case relied upon Walsh v. New
York, New Haven & Hartford Railway Co., one of the Second Employers’
Liability Cases, in which the plaintiff was injured while replacing
the drawbar of a car, and held that no line could be drawn between replac-
ing a drawbar of a car and putting back a bolt into the brake shoe of a
tender, nor between a fire track and any other kind of yard or terminal
track.6 And on affirming the decision in Baltimore, etc., R. Co. v. Darr,
124 C. C. A. 565, 204 Fed. 751, the court said:

“If this engine had been stopped en route, while attached to a loaded
train, either in the state of Maryland or in the state of West Virginja,
for making needed repairs, it could hardly have been insisted that dur-
ing the time consumed in making such repairs the defendant company
was not engaged as an interstate carrier. The engine was making its
daily trips through Maryland and West Virginia, and while temporarily
in the yards at Cumberland, Md., it became necessary to make certain
repairs that were essential to the siiccessful operation of the defendant
company’s trains. Therefore it necessarily follows that any work that
was performed by the plaintiff was as much an incident of the business
as if the accident had occurred while the train was on its regular trip
either in Maryland or West Virginia. The learned judge who heard
this case in the court below, among other things, made the following
statement of facts: “The engine was at the time of the accident habitu-
ally used in interstate commerce, and apparently, from the testimony, in
no other kind of commerce. It was not withdrawn from service. * * *
The engine came in from its interstate commerce run as usual, and ap-
parently went out as usual. The repairs which the plaintiff was making
to it were of the ordinary trivial kind, which must be, and habitually
are, made from day to day, without in any wise interfering with the
ordinary and profitable use of the equipment. At the time of the ac-
cident, I am persuaded, the locomotive and tender were instruments of
interstate commerce, as those words are used by the supreme court.’ ”

4. Cars set aside for repair—Gaines (D. C.), 197 Fed. 665, affirmed in 124
v. Detroit, etc, R. Co. 181 Mich. 376, C. C. A. 565, 204 Fed. 751.
148 N. W. 397. 6. Darr v. Baltimore, etc., R. Co. (D.
5. Repairing locomotive between C.), 197 Fed. 665, 668, affirmed in 124
trips—Darr v. Baltimore, etc, R. Co. C. C. A. 565, 204 Fed. 751.
§§ 40-41 FEDERAL EMPLOYERS LIABILITY ACT. 84

In the case of Heimbach v. Lehigh Valley R. Co.,7 the court relying upon
the decision of the circuit court of appeals in the Pedersen Case, held that
employees are not engaged in interstate commerce who were killed while
repairing a car that had been engaged in interstate commerce but had reached
its destination, and when empty being found in need of repairs was placed
upon a side track, it appearing that it was simply awaiting orders, and that
its next movement was interstate. This case is,contrary to the reasoning
in other similar cases, and is to be read in the light of the fact that the opin-
ion of the circuit court of appeals upon which it rests has since been: re-
versed.

§§ 41-46. Employees Actually Engaged in, or Assisting in, Trans-
portation—§ 41. Generally.—The application of the act to employees
actually engaged in the movement of cars is not so broad as when applied to
the workmen on instrumentalities. Because as the power of congress to pass
the act was limited to interstate commerce, so in its exercise of that power
it must be so limited.8 The result is, if an employee is engaged at one time
in interstate and at another in intrastate commerce, and is injured when
engaged in operations purely intrastate he is not within the terms of the
act, as giving to the words “suffering injury while he is employed by such
carrier in such commerce” their natural meaning, it is clear that congress
intended to confine its action to injuries occurring wheh the particular serv-
ice in which the employee is engaged is a part of interstate commerce.?

But this in no way conflicts with the doctrine laid down in the Second
Employers’ Liability Cases and in the Pedersen Case that the operation of
the act is not defeated by reason of the fact that the defendant and the em-
ployee were engaged in both interstate and intrastate commerce at the time
of the injury,!° for in such service the whole becomes interstate, and as
before noted the employer cannot by commingling the service defeat the
operation of thé act.14_ It is to be noted though that a commingled serv-
ice, properly speaking, embraces that service which is both interstate and
intrastate at the same time, but not such service that is interstate at one time
and intrastate at another, which may be properly called indiscriminate serv-
ice. From this it follows that a locomotive engineer on a train which car-

%. Contrary ruling—(D. C.), 197 moment, when the particular service

Fed. 579, decided upon authority of
Pedersen J. Delaware, etc. R. Co., 117
GC. G. A. 23, 197 Fed, pov.

8. Exercise to be measured by power
to enact.—Illinois Cent. R. Co. v. Beh-
rens, 233 U. S. 473, 58 L. Ed. 1051, 34
S. Ct. 646, Ann. Cas. 1914C, 163.

9. Separating service of ‘employee.—
Illinois Cent. R. Co. v. Behrens, 233 U.
S. 473, 58 L. Ed. 1051, 34 S. Ct. 646,
Ann. Cas. 1914C, 163; Corbett v. Bos-
ton, etc., Railroad, 219 Mass. 351, 107
N. E. 60.

“The federal act has been construed
as covering injuries occurring at the

performed is a part of interstate com-
merce. Illinois Cent. R. Co. v. Behrens,
233 U. S. 473, 58 L. Ed. 1051, 34 S. Ct.
646, Ann. Cas. 1914C, 163.” Corbett v.
Boston, etc., Railroad, 219 Mass. 351,
107 N. E. 60.

10. Commingled service. — Second
Employers’ Liability Cases, 223 U. S.
ty a Ed. 327, 32 S. Ct. 169, 38 L.
R. A,, S., 44; Pedersen v. Delaware,
etc., RN Ca, 229 U. S. 146, 57 L. Ed.
1125, 33 S. Ct. 648, Ann. ‘Cas. 1914C,
153.

11. See

ante
Law,” § 24. :

“Superseding State
85 EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. § 41
ries interstate cars is engaged in interstate commerce within the meaning
of the Federal Employers’ Liability Act, though there are intrastate cars in
the train.12

The running of a train from one state into another for the purpose of
transporting freight or passengers across the state line constitutes interstate
commerce, even though it does not appear that any freight or passengers
were actually carried across the state line upon that particular trip. In
other words, the mere operation of the train for the purpose of transporting
freight or passengers across the state line, if offered, constitutes interstate
commerce.13 ‘Through trains” will be considered those which run from
one division point to another division point upon the road, and if these were
each in different states, a plaintiff engaged in operating such trains would
be engaged in interstate commerce.!* So an engineer when running an en-
gine from one state to another for the sole purpose of having it repaired, is
engaged in interstate commerce.!44 An employee, who had been sent from a
point in one state to a point in another for the purpose of returning to the
original starting point, on a dead engine of which he was to act as a care-
taker, is engaged in interstate commerce within the act, when injured on the
return trip.15 Though it was argued that it was not an instrumentality used
by the defendant at the time in interstate commerce, and that, therefore, the
plaintiff could not be said to have been injured “while” engaged in interstate
commerce ; it was shown by the evidence that the dead engine upon which the
plaintiff was riding at the time he received the alleged injuries was part of a
train operated by the defendant and engaged in carrying, in part, through
freight cars with shipments of freight. Clearly the defendant was at the time
engaged in interstate commerce, and the dead engine was one of the instru-
mentalities ordinarily used by the defendant in carrying on its business, and
the fact that this instrumentality was not being put to the precise use for which

12. Employees on trains carrying
both kinds of trafiic.—Horton v. Sea-
board, etc., R. Co., 157 N. C. 146, 72
S. E. 958, reversed on other grounds
in 233 U. S. 492, 34 S. Ct. 635.

A finding that an engineer was en-
gaged in interstate commerce is well
justified by evidence showing that the
train running in the same direction
which he was running generally con-
tained interstate shipments of lumber
and oil, and that his train was hauling
these commodities. Southern Pac. Co.
v. Vaughan (Tex. Civ. App.), 165 S. W.
885, writ of error denied in 170 S. W.
xix, no op.

13. From state to state—Where no
interstate freight or passengers actually
carried on the particular trip.—Arkan-
sas —Kansas, etc., R. Co. v. Cook, 100
Ark. 467, 140 S. W. 579; St. Louis, etc.,
R. Co. v. Anderson (Ark.), 173 S. W.
834.

Kentucky Louisville, etc. R. Co. uv.
Holloway, 163 Ky. 125, 173 S. W. 343.

Missourt—Hearst v. St. Louis, etc.,
R. Co., 188 Mo. App. 36, 173 S. W. 86;
Thompson v. Wabash R. Co., 262 Mo.
468, 171 S. W. 364.

Contradictory evidence as to the
destination of a train, whether intra-
state or interstate, require the submis-
sion of the issue of interstate service
and employment to the jury. Howell
v. Atlantic, etc., R. Co. 99 S. C. 417,
83 S. E. 639.

14. Bower v. Chicago, etc., R. Co.,
96 Neb. 419, 148 N. W. 145.

14a. Chicago, etc., Ry. Co. v. Wright,
239 U. S. 548, 36 S. Ct. 185.

15. Employee, as caretaker on dead
engine in interstate train. — Atlantic
Coast Line R. Co. v. Jones, 9 Ala.
App. 499, 63 So. 693.
§§ 41-42 FEDERAL EMPLOYERS’ LIABILITY ACT. 86

it was designed at the particular time when the injury occurred to the plain-
tiff does not alter the fact that the defendant was engaged in an act of in-
terstate commerce at the time the plaintiff was injured, and that the plain-
tiff was in the performance of his duties in the line of his employment and
was injured while engaged or employed by the defendant in interstate com-
merce.1¢ This contention was well answered in Chicago, etc., Ry. Co. v.
Wright, 239 U. S. 548, 36 S. Ct. 185, 186, where the court said:

“Tt is entirely clear that taking the road engine from Phillipsburg, Kansas,
to Council Bluffs, Iowa, was an act of interstate commerce, and that the
interstate, while participating in that act, was employed in such com-
merce. That the engine was not in commercial use but merely on the
way to a repair shop is immaterial. It was being taken from one state
to another and this was the true test of whether it was moving in in-
terstate commerce.”

§ 42. Intrastate Movement of Trains—Carrying Interstate Ship-
ments.—An engineer moving an engine without cars or train of any sort,
from a point in a state to a point in another state is engaged in interstate
commerce, even when his orders only covered an interstate movement; 1"
but an electric railway employee conducting a local car between points in
the same state is not so engaged,!8 even though it was one of his
duties to keep a clear track for interstate cars. For it could as well be said
that any local employee walking upon the track who should get off when a
train approached was engaged in such service.19 Nor did the fact that he
could give transfers to passengers to a point across the state line, make him
an employee engaged in interstate commerce, when none were given. The
possibility or even probability of such future service is not sufficient,?° as
an intrastate train does not engage in interstate commerce by reason of the
fact that it makes connection with trains running into other states, when

16. Atlantic Coast Line R. Co. w.
Jones, 9 Ala. App. 499, 63 So. 693.

17. Engine or car without commerce.
—Chicago, etc., R. Co. vw. Wright (U.
S.), 36 S. Ct. 185, in which the contrary
holding in Wright v. Chicago, etc., R.
Co., 94 Neb. 317, 143 N. W. 220; S.
C., 96 Neb. 87, 146 N. W. 1024, was
held error but harmless. The lower
court having taken the view that the
engine was on an intrastate trip, due
to the fact that it was running on an
order between two points in the state,
but the evidence showed its ultimate
destination to be out of the state and
that it would receive additional orders
as it proceeded.

18. Miller v. Kansas, etc., R. Co., 180
Mo. App. 371, 168 S. W. 336; Kiser v.
Metropolitan St. R. Co., 188 Mo. App.
169, 175 S. W. 98.

“Tf the work of a local employee is
on, or with, a particular car, that car
must be an interstate car in order that

such employee may be engaged in in-
terstate service.” Miller v. Kansas,
etc, R. Co., 180 Mo. App. 371, 168 S.
W. 336.

19. Same—When keeping lookout for
interstate cars.—Miller v. Kansas, etc.,
R. Co., 180 Mo. App. 371, 168 S. W. 336.

20. Same—Having right to issue
transfer to interstate passenger.—Kiser
v. Metropolitan, etc. R. Co., 188 Mo.
App. 169, 175 S. W. 98.

An electric railway company which
operates an urban car line, and also
other lines connecting therewith and
extending into another state, is both
an intrastate and an interstate carrier.
But the federal act does not apply in
the case of injury to a servant of such
company, who is operating a street
car, confined to the urban lines and
not, at the time of injury, carrying in-
terstate passenger or traffic. Watts vw.
Ohio Valley Electric Ry. Co. (W. Va.),
88 S. E. 659.
87 EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. § 42
there are no passengers, baggage or merchandise on the train to be trans-
ported to such connecting trains.?!

It has also been held that an employee on a train engaged in dis-
tiibuting empty coal cars from a distributing point within the state to coal
mines in the state is not engaged in interstate commerce, when the cars,
though received from a point without the state were destined to such dis-
tributing point, that then their interstate journey ended; and that the sub-
sequent movement under new orders and entirely within the state, was not
interstate commerce.??, And an engineer is not engaged in interstate com-
merce, when hauling cars of coal which having come from another state,
had reached the place in Texas to which they were billed, and from this last
point on being rebilled were being transported to an intrastate destination.
The evidence showing that some of the coal was used at the intermediate point
in supplying trains and for other purposes, and other cars were from there
forwarded under new bills of lading to various points on defendant’s lines
of railway in the state; that in some instances the coal was forwarded in
the same cars in which it had been shipped, and in other cases the coal was
unloaded, put in chutes, and from the chutes loaded into other cars to be
shipped.?8

But employees on intrastate trains which contain interstate shipments are
engaged in interstate commerce.24 In Fernette v. Pere Marquette R. Co.,
175 Mich. 653, 141 N. W. 1084, 144:\N. W. 834, the court said:

“A train operating only between two points within the state, and carrying
merchandise only to destinations within the state, would clearly be sub-
ject to the regulatory provisions of the state act. Does the fact that it
happens to carry one or more cars billed to a foreign destination rob
it of its character as a factor in intrastate commerce? There can be
no doubt that under such circumstances the entire train is impressed
with the qualities of a federal agency of interstate commerce (Pedersen
v. Delaware, etc., R. Co., 229 U. S. 146, 57 L. Ed. 1125, 33 S. Ct. 648,
Ann. Cas. 1914C, 153, and cases there cited), and as such is subject
to the regulatory provisions of the federal act.”

Thus a student fireman on a train hauling to points within the state, under
contracts of through carriage, cars loaded at points outside of the state and
shipped therefrom by other railroad lines, as initial carriers, is engaged in in-

21. Boyle v. Pennsylvania R. Co. (C.
C. A.), 228 Fed. 266, affirming 221 Fed.
453.

22. Cars reaching ultimate destination
and rebilled.— Louisville, etc., R. Co. v.
Strange, 156 Ky. 439, 161 S. W. 239.
See, also, Pennsylvania R. Co. v. Knox,
134 C. C. A. 426, 218 Fed. 748.

28. Missouri, etc. R. Co. wu.
(Tex. Civ. App.), 184 S. W. 1051.

24, Intrastate trains carrying inter-
state freight.— United States.— New
York, etc, R. Co. v. Carr, 238 U. S.
260, 35 S. Ct. 780.

Pace

Iowa.—Brucksshaw v. Chicago, etc.,
R. Co. (Iowa), 155 N. W. 273.
Kentucky.—Nashville, etc., R. Co. v.
Banks, 156 Ky. 609, 161 S. W. 554.
Michigan—Fernette v. Pere Mar-
quette R. Co., 175 Mich. 653, 141 N. W.
1084, 144 N. W. 834.
Missouri—Moliter v. Wabash R. Co.,
180 Mo. App. 84, 168 S. W. 250.
Texas —Ft. Worth, etc, R. Co. v.
Stalcup (Tex. Civ. App. ), 167 5. W. 279,
writ of error denied in 170 S. W. xviii,

no op.
8§ 42-43 FEDERAL EMPLOYERS’ LIABILITY ACT. 88

terstate commerce, notwithstanding the train in which such cars are hauled
is largely composed of cars of intrastate shipment.2> And an employee of a
local railroad is engaged in interstate commerce when employed in switching
an empty car from its ultimate destination on such a road, for the purpose of
returning it to a connecting carrier who had ordered all such cars shipped
to a point in another state, and this is so notwithstanding such car was only
billed to the connecting point.?6

Where a railroad was organized in one state but doing business also in
another into which its tracks ran and over which it transported freight and
passengers was engaged in interstate commerce, and plaintiff, a fireman, was
engaged on an engine which ran from a point in one state to a point in the
same state, but moving cars containing freight and cars bound for points
without the state, he was engaged in interstate commerce, and the fact that
the engine upon which he worked only ran between points in the same state
will not affect the case and the federal act will apply.2" It has also been
held that a conductor whose run was between points in the same state, the
trip.and return being made in one day, was an employee engaged in inter-
state commerce when his train was usually composed of cars loaded with
interstate shipments, but on the day he was injured there were no cars to
be brought back and he was ordered to move between two intermediate
points some flat cars loaded with a pile driver owned by the company. The
court considering that his daily routine “related almost wholly to interstate
commerce, and intrastate work was a mere incident to his general employ-
ment,’ and he was not injured while engaged in some work purely of an
intrastate character.28 This case was again before the court on second ap-
peal and the decision reaffirmed, notwithstanding Illinois Cent. R. Co. v.
Behrens,?® which was considered not applicable.?°

§ 43. Employees Preparing Interstate Trains to Go Out.—An em-
ployee preparing ice for use on trains carrying interstate passengers is en-
gaged in interstate commerce, within the meaning of the act. iSuch employ-
ment contributes to the comfort and necessity of interstate, and not alone to
the local, passengers ;34 and where an infant plaintiff, about 17 years of age,
was employed by defendant, a carrier engaged in interstate commerce, to
fire its engine preparatory to the same being attached to a train scheduled

25. Employee on train hauling inter-
state shipment for connecting line,—
Findley v. Coal, etc, R. Co. (W. Va.),

28. Round trip of train—Carrying in-
terstate commerce one way only.—
Peery v. Illinois Cent. R. Co., 123

87 S. E. 198. ;

26. Trowbridge v. Kansas, etc, R.
Co. (Mo. App.), 179 S. W. 777.

27. Fireman on interstate train, but
engine only running between intrastate
points.—Peek v. Boston, etc., Railroad
(D. C.), 223 Fed. 448. See, also, Noel
v. Quincy, etc. R. Co. (Mo. App.),
182 S. W. 787.

Minn. 264, 143 N. W. 724, affirmed on
2nd Appeal, 150 N. W. 382.

29. 233 U. S. 473, 58 L. Ed. 1051, 34
S. Ct. 646, Ann. Cas. 1914C, 163.

30. Perey v. Illinois Cent. R. Co.,
128 Minn. 119, 150 N. W. 382, 1103.

31. Preparing ice for train engaged in
both kinds of traffic— Freeman v. Pow-
ell (Tex. Civ. App.), 144 S. W. 1033,
affirmed in 105 Tex. 317, 148 S. W. 290.
89 EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. § 43
to run between points in two states and while assisting in operating the en-
gine in the railroad yard, for the purpose of taking on a barrel of oil to be
carried on the engine, the plaintiff was injured, held, that at the time of the
accident the plaintiff and defendant were engaged in interstate commerce,
within the meaning of the terms of the federal act ;3? and an employee en-
gaged in preparing an engine for an interstate trip by filling the tender with
coal is engaged in interstate commerce.3? In Armbruster v. Chicago, etc.,
R. Co., 166 Iowa 155, 147 N. W. 337, the court said:

“True, the engine had not been attached to the train at the time, but it
was being prepared for that purpose, and it was attached shortly there-
after and actually hauled freight into another state. It is suggested
that the engine whose tender was being icoaled was not shown to have
been assigned to haul the particular train, and that the work may have
been done generally, but we think any such inference was obviated by
proof of the actual use made of it and the absence of evidence that
engines were being so prepared generally without reference to when
they were to be employed.”

A hostler, his assistant, and a fireman when moving an engine prepara-
tory to attaching it to cars to be run in interstate commerce is an act of in-
terstate commerce governed by the federal act.3+ And an employee
in looking around the yard of the defendant railroad for a tin cup to be
used on an interstate train is engaging in interstate commerce within the
meaning of the act,35 and a brakeman returning from the ice house of the
company with ice to cool hot boxes on an interstate train on which he was
employed is engaged in interstate commerce.°6

For an injury received by an engineer of a railroad company while ex-
amining. his engine preparatory to taking an interstate train upon its usual
run, an action for damages comes under the Act; for it is not required that
the engine be coupled with a train actually employed at the time in carrying
interstate commerce.37 In North Carolina R. Co. v. Zachary, 232 U. 58.
248, 58 L. Ed. 591, 34 S. Ct. 305, Ann. Cas. 1914C, 159, the court said:

“Tt is argued that because, so far as appears, deceased had not previously
participated in any movement of interstate freight, and the through
cars had not as yet been attached to his engine, his employment in in-
terstate commerce was still in futuro. It seems to us, however, that
his acts in inspecting, oiling, firing, and preparing his engine for the
trip to Selma were acts performed as a part of interstate commerce
and the circumstance that the interstate freight cars had not as yet
been coupled up is legally insignificant.”

32. Helper preparing engine to go
out.—Tonsellito v. New York, etc., R
Co. (N. J.), 94 Atl. 804.

33. Armbruster v. Chicago, etc. R.
Co., 166 Iowa 155, 147 N. W. 337.

34. Byram v. Illinois Cent. R. Co.
(Iowa), 154 N. W. 1006.

35. Finding drinking cup for inter-
state train—Baltimore, etc., R. Co. v.
Whitacre, 124 Md. 411, 92 Atl. 1060.

36. Employee cooling hot box.—Illi-
nois Cent. R. Co. v. Nelson, 122 C. C.
A. 258, 203 Fed. 956. E

37. Engineer inspecting and oiling
engine—North Carolina R. Co. v.
Zachary, 232 U. S. 248, 58 L. Ed. 591,
34 S. Ct. 305, Ann. Cas. 1914C, 159;
Southern R. Co. v. Lloyd (U. S.), 36
S. Ct. 210, affirming 166 N. C. 24, 81
S. E. 1003.
§ 43 FEDERAL EMPLOYERS LIABILITY ACT. 90

Also where plaintiff an engineer who was employed on an interstate train
1eturned from a run about 10:30 p. m. and was not required to make an-
other until 6:10 the next morning. Being detained in the yard for a short
time to determine whether it should be necessary for him to make an extra
run and being informed that it would not, he retired to a boarding house
for rest. The boarding house was full and he went to the roundhouse and
slept in an engine which was to go out before his. While he was sleeping
the engine was taken out by a hostler and he awoke when it was at the
coal chute and asked for his engine, was told that it was in the roundhouse
and when last seen he was going in that direction. His engine was placed
in the roundhouse where the step was over a pit, where he was found dead
after the engine was moved and had gone on its run. The defendant con-
tended that a verdict should have been directed on the ground that he was
not employed in interstate commerce, but the court held that there was evi-
dence sufficient to have the question submitted to the jury in that the en-
gine was in need of repairs and had been placed in the roundhouse for that
purpose, that he was required to inspect his engine before using it and
though he was only required to do so a half hour before leaving time, the
rules did not forbid an earlier inspection.38

And a service which is different from this in degree but not in kind is that
of an engineer, who, after his engine, having been taken to the shops for
repairs, was at the precise time of the injury on a sidetrack connecting with
the main line, ready for a trial trip, and plaintiff was engaged in inspecting
and oiling said engine for the purpose of taking said trip and with a view
of further service for the company, he is held to be engaged in interstate
commerce.39

In the case of Neil v. Idaho Railway Company, it appeared that the plain-
tiff was employed by the defendant railway company as a freight conduc-
tor. On the day of the injury, his train, consisting of about twenty cars,
loaded with intrastate and interstate freight, had been made up, and he had
gone to the engine on the front end of his train and had a conversation with
his engineer, and had given him his clearance card and was going back to
his caboose. It appears from the evidence that, at the time, the car in-
spector was inspecting the plaintiff's train, and the plaintiff, instead of re-
turning to his caboose on the open space between the track on which his
train was standing and the “scale track,” on which the switching was be-
ing done, went upon the “scale track,” and, according to his testimony, was

38. Padgett v. Seaboard, etc., Rail-
way, 99 S. C. 364, 83 S. E. 633, affirmed
in 35 S. Ct. 481.

If the jury could have inferred that
an employee was doing the work that
was required of him, not at a time it
was required, but at a time when it was
not forbidden, then they could con-
clude that he was engaged in interstate
commerce and the court could not di-

rect a verdict that he was not so en-
gaged at the time of injury. Padgett
v. Seaboard, etc., Railway, 99 S. C. 364,
83 S. E. 633.

39. Engineer preparing engine for
trial trip.—Lloyd v. North Carolina R.
Co., 162 N. C. 485, 78 S. E. 489; Lloyd
v. Southern R. Co., 166 N. C. 24, 81 S.
E. 1003, affirmed in 36 S. Ct. 210.
91 EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. §§ 43-44

inspecting his train as he proceeded on his way to its rear. Whether it was
necessary for the conductor to return from the engine to the caboose on
his train does not appear, but it does appear that it was not necessary
for him to walk on the “scale track.” It was contended by counsel for the
defendant that the plaintiff, in walking upon said “scale track,’ could not
have been engaged within the scope of his employment; that there was
nothing in his employment requiring that he should be on said “scale track;”
that, on the contrary, the proper discharge of his duties would require that
he should not be there. Answering this contention, the court said: “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 en-
gaged in interstate commerce to the extent of getting his train ready for
that purpose. It seems to us that preparation was being made to have his
train leave Spirit 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.’’4°

Though it has been held that a carrier is not liable under this act for in-
juries suffered by one of its employees engaged in making up a train, while
effecting a coupling between an engine tender and a baggage car, not ap-
pearing to be then in the service of other than intrastate commerce, notwith-
standing it was the defendant’s intent to immediately thereupon incorporate
in said train a number of freight cars, including three then in the service of
interstate commerce ;41 this can hardly be sustained though decided on au-
thority of Illinois Cent. R. Co. v. Behrens, for the reason that this was
not an independent intrastate service, but service preparatory to interstate
service.

§ 44. Employee Supplying Fuel, Water, etc., for Indiscriminate
Use.—A brakeman on a train carrying water from a point in a state to
fill a tank in the same state, killed by the-explosion of the engine pulling
the train, was not engaged in interstate commerce so as to come within the
act, as even conceding that the water being hauled would ultimately be used
by interstate trains, the proof showed that another employee had to pump
the water into an elevated tank before it could be used by any train ;4% nor
does the act govern a fireman who is so hauling coal ;## but should the water

40. Conductor inspecting train—Neil
v. Idaho, etc., Railroad, 22 Idaho 74,
125 Pac. 331.

41. Contrary holding.—Atchison, etc.,
R. Co. v. Pitts (Okla.), 145 Pac. 1148.

42. 233 U. S. 473, 58 L. Ed. 1051, 34
S. Ct. 646, Ann. Cas. 1914C, 163.

43. Employee on water or coal train.
—Missouri, etc. R. Co. uv. Fesmire
(Tex. Civ. App.), 150 S. W. 201, writ of
error denied in 152 S. W. xv, 106 Tex.
641, no op.

44, Barker v7. Kansas City, etc. R.
Co., 94 Kan. 176, 146 Pac. 358.

“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 trans-
portation of interstate commerce. But
this fact alone could not make him an
employee engaged in interstate com-
merce.” Barker 7. Kansas City, etc.
R. Co., 94 Kan. 176, 146 Pac. 258.
§ 44 FEDERAL EMPLOYERS’ LIABILITY ACT. 92
or coal have been carried from another state, and on the way to a place of
storage, the case would have been otherwise.*5

In Chicago, etc., R. Co. v. Harrington,*® it is held that a switchman while
engaged in moving cars of coal from where they had been standing on a
storage track to a place where the coal could be put in bins or chutes and
supplied to locomotives as needed is not engaged in interstate commerce.
The court considered that the previous movement of the coal to the point
for storage was immaterial, in that it had long since ended, “had been in
storage in [on] its storage tracks for a week or more prior to the time it was
being switched into the coal chutes.” The facts of this case are so similar to
that of Barlow v. Lehigh Valley R. Co.,47 in which it was held that an en-
gineer of a switch engine, while switching coal cars containing an inter-
state shipment so they could be dumped into railroad’s bunkers from which
the railroad’s locomotives, both those doing interstate and intrastate com-
merce, would coal, is engaging in interstaté commerce within the purview
of the act, that the decision therein cannot be considered sound.

An employee engaged in cleaning up the coal from the floor of a basement
room which had been dropped from hoppers leading into it, and placing it
upon conveyors to be carried to bins from which it was taken and weighed,
then placed in other bins to be used by the engines, is not engaged. in inter-
state commerce so that the federal law would apply to an action for an in-
jury received while so engaged.48

However, it is held that an employee who is engaged in loading coal from
chutes to engines is engaged in interstate commerce when the engines
loaded are some used in interstate and some in intrastate commerce but at
the time of his injury he was on his way to the office of the company in or-
der to turn in the tickets upon which his pay was based but it was not shown
whether the tickets were from interstate engines or otherwise.49 Also that
an employee pumping water in a tank,®° one spotting a car of oil,51 rolling

45. See ante, “The Employer,” §§
34-35.

46. Moving coal from storage to
chutes.—(U. S.), 36 S. Ct. 517, affirm-
ing in 180 S. W. 443.

47. 158 App. Div. 768, 143 N. Y. S.
1053, affirmed in 214 N. Y. 116, 107 N.
E. 814.

48. Employee cleaning up coal
around storage bins.—Zavitovsky v.
Chicago, etc., R. Co., 161 Wis. 461, 154
N. W. 974.

49. Employee actually loading en-
gines.—Chicago, etc, R. Co. v. Bond
(Okla.), 148 Pac. 103, reversed in 36
S. Ct. 403, as being an independent
contractor, the federal act was not ap-
plicable and whether he was engaged
in interstate commerce not decided.

50. Employee placing materials to be
loaded.—Horton v. Oregon-Washing-

ton R., etc., Co., 72 Wash. 503, 130 Pac.
897.

51. Montgomery v. Southern Pac.
Co., 64 Ore. 597, 131 Pac. 507, 47 L.
R. A, N. S., 13.

“Oil is the food that gives life and
strength to the engine, furnishing the
motive power for the transportation of
interstate freight. * * * Suppose that
all the agents engaged in providing oil

_to be used as fuel in interstate com-

merce upon a railroad, as this oil was
destined to be used, should cease to
act, for instance, on account of a boy-
cott or by reason of an injunction or-
der issued by a state court for some
purpose conceived to be good (a vio-
lent assumption), and there was a
failure of the supply of fuel and both
the switch and interstate engines were
compelled to stop, the stream of inter-
state commerce would also stop or be
93 EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. §§ 44-45

coal in buggies,®? or placing coal in the pockets of a chute,5? for the use of
both interstate and intrastate trains come within the act.

In the last instance the court sees no distinction between the actual loading
ef the tender and the placing of the coal in position to be automatically
loaded. Commenting on this point in Kamboris v. Oregon-Washington R.,
etc., Co., 75 Ore. 358, 146 Pac. 1097, the court said:

“In the case at bar we cannot see why the act of furnishing the coal for
fuel, and placing the same in the pockets of the chute to be used partly
in the engines engaged in interstate traffic, was not just as essential in
the matter of running interstate trains as the act of taking the same
out of such chute or pockets and placing it upon the tenders of the
engines, or any other act of the employees in running the engines and
trains transporting such commodities. If it were impossible to fill the
position of the deceased, and the coal was not furnished, interstate
commerce would stop or be retarded to that extent, and it clearly seems
to us that the general duties of the decedent, as well as the act he was
performing at the particular time of the injury, had a very substantial
bearing upon and relation to interstate commerce. It cannot be said
consistently that the decedent was not engaged in his duty because he
was waiting for the cars to approach the proper place in order to block
the wheels. It might as well be said that a switchman was not en-
gaged in his duty while waiting for a train to pass a switch in order
to turn the same. The act of placing the cars of coal in the chute was
similar to decedent’s general duties of shoveling coal, and was a nec-
essary service in preparing the fuel for the engines hauling the inter-
state trains.”

§ 45. Employees on Interstate Train—Switching Cars to Compose
Train—When Doing Local Switch Work—Switching after Arrival
at Terminus.—As the employees on interstate trains are considered as
employed in interstate commerce,®* they are also held to be so employed
when engaged in switching cars in order to make up the train at its orig-
inal starting point.55 Thus where cars are being switched to form an in-

interstate commerce. Cincinnati, etc.,
Co. v. Goode, 155 Ky. 153, 159 S.

lessened to the same extent. What
court or lawyer would say that under R.

these circumstances there was not a
substantial interference with interstate
commerce?” Montgomery v. Southern
Pac. Co., 64 Ore. 597, 131 Pac. 507, 47
L. R.A, N.S. 13.

52. Southern R. Co. v. Peters (Ala.),
69 So. 611.

58. Kamboris v. Oregon-Washing-
ton R., etc., Co., 75 Ore. 358, 146 Pac.
1097.

54, Employees on interstate train —
Illinois Cent. R. Co. v. Nelson, 122 C.
C. A. 258, 203 Fed. 956; Vaughan v. St.
Louis, etc., R. Co., 177 Mo. App. 155,
164 S. W. 144.

A brakeman upon a passenger train
due to leave a point in a state for a point
in another, lining up the switches so
his train could go out is engaged in

W. 695, modifying on rehearing 153
Ky. 247, 154 S. W. 941.

55. Switching cars to compose train.
—lIowa—Bruckshaw v. Chicago, etc.,
R. Co. (Iowa), 155 N. W. 273.

Minnesota—Crandall v, Chicago, etc.,
R. Co., 127 Minn. 498, 150 N. W. 165.

New York.—Ruppell v. New York
Cent. R. Co. (App. Div.), 157 N. Y. S.
1095.

Vermont.—Carpenter v. Central Ver-
mont R. Co. (Vt.), 96 Atl. 373.

Virginia.—Southern R. Co. v. Jacobs,
116 Va. 189, 81 S. E. 99, affirmed in
36 S. Ct. 588.

Although an employee of an inter-
state railroad was, at the instant of in-
jury, engaged on a local yard in shift-
ing cars engaged in intrastate com-
§ 45 FEDERAL EMPLOYERS’ LIABILITY ACT. 94
terstate train, the fact that they were not owned by the defendant or to be
operated over its line will not sustain the contention that an employee was
not employed in interstate commerce by the defendant. As where two
railroads use a common switching yard, in which the employees of one
carrier form a switching crew which is actually making up cars into a train,
all of which is to go beyond state lines, those engaged in such switching
are under the protection of the federal act, even if they are not moving the
cars of their immediate employer.5® And a fireman employed on an engine
engaged in making up an interstate train is employed in interstate commerce
so as to bring an action under the act, though at the time he was injured, the
switching crew had stopped, temporarily, the work of switching cars to
go to the yard office for some purpose not disclosed, and the fireman taking
advantage of this lull in the work was cleaning the flues of the engine, a
part of his duty, and necessary for the proper operation of the engine.57
So too, a switchman killed while engaged in putting cars in strings for im-
mediate transportation by boat into another state, this being the only trans-
portation by railroad of the cars out of the state, an action for his death

comes under the act.57

Such employees too, are considered as engaged in interstate commerce
when switching at some intermediate point cars into, or out of, the train,®8

merce, if the shifting and movement of
the cars at the time had for its object
the making up of an interstate train,
the employee was engaging in inter-
state commerce within the meaning of
the Federal Employers’ Liability Law.
Southern R. Co. v. Jacobs, 116 Va. 189,
81 S. E. 99, affirmed 36 S. Ct. 588.

The plaintiff’s intestate, a switchman,
was employed by the defendant in its
yards at Oelwein, Jowa, making up a
train destined for Minnesota, some of
the cars to be set out at stations in
Iowa and some carrying local freight
to be unloaded on the way, some of the
cars in the train being made up hav-
ing been transported by the defendant
from points in Illinois to its Oelwein
yards, destined some to Iowa points
and some to points in Minnesota, and
some of them originating in Iowa, des-
tined some to Iowa points and some
to points in Minnesota. The deceased
was run over by an intrastate car and
the negligence found was in respect of
the brakestep of an intrastate car. It
is held that the defendant was at the
time engaged as a common carrier in
interstate commerce and that the de-
ceased was employed by it in such
commerce, and that the Federal Em-
ployers’ Liability Act applied. Cran-
dall v. Chicago, etc, R. Co. 127 Minn.
498, 150 N. W. 165.

Evidence held to make it a question

for the jury whether plaintiff was en-
gaged in making up a train to run to
interstate points, or moving cars so
destined. St. Louis, etc, R. Co. v.
Brown (Okla.), 144 Pac. 1075, affirmed,
36 S. Ct. 602.

56. Ruppell v. New York Cent. R.
Co. (App. Div.), 157 N. Y. S. 1095.

57. Same—Fireman cleaning flues
during let up in work.—Alabama, etc.,
R. Co. v. Skotzy (Ala.), 71 So. 335.

57a. Preparing cars for interstate
transportation by boat.—Henley v. II-
linois Cent. R. Co. (Minn.), 157 N. W.
1005,

58. Switching cars at intermediate
points.—Moliter v. Wabash R. Co., 180
Mo. App. 84, 168 S. W. 250; Thomp-
son wv. Minneapolis, etc, R. Co.
(Minn.), 158 N. W. 42.

“Plantiff was a brakeman working on
a train running between points in this
state, but as shown by the evidence in
his behalf, at the time he was injured,
his train was composed of freight cars,
a part of which were from and destined
to points within the state and others
were destined to points in Illinois, and
he was engaged in assisting to switch
interstate cars out of the train onto
other tracks. In such circumstances,
he was engaged in interstate commerce.”
Moliter v. Wabash R. Co., 180 Mo.
App. 84, 168 S. W. 250.
95 EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE, § 45
though the cars handled at the time of the injury were entirely engaged in
intrastate business.5® It was insisted that when the intrastate cars were
cut out of the train and backed into a siding, they lost their interstate char-
acter, so that an employee while working thereon was engaged in intrastate
commerce and not entitled to recover under the Federal Employers’ Lia-
bility Act. But owing to the fact that, during the same day, railroad em-
ployees often and rapidly pass from one class of employment to another,
the courts are constantly called upon to decide those close questions where
it is difficult to define the line which divides the state from the interstate
business. This is an instance of that kind; and many arguments may be
advanced to support the contention that, where intrastate cars are cut
out of an interstate train and put upon a siding, it could not be said that
one working thereon was employed in interstate commerce. But the mat-
ter is not to be decided by considering the physical position of the employee
at the moment of injury. If he is hurt in the course of his employment
while going to a car to perform an interstate duty, or if he is injured while
preparing an engine for an interstate trip, he is entitled to the benefits of the
federal act, although the accident occurred prior to the actual coupling of the
engine to the interstate cars,®° and these cars come within the principle of
those two decisions.®1

Commenting on the employee’s relation to interstate commerce, and dis-

59. New York, etc, R. Co. vw. Carr,
238 U. S. 260, 35 S. Ct. 780, affirming
136 N. Y. S. 501, 77 Misc. Rep. 346;
Thornbro v. Kansas, etc., R. Co., 91

Kan. 684, 139 Pac. 410, Ann. Cas.
1915B, 314; S. C., 92 Kan. 681, 142
Pac. 250.

A brakeman in the service of an in-
terstate common carrier, running on a
train consisting in part of cars contain-
ing interstate shipments of freight, was
required to assist in picking up a
freight car loaded with chats standing
on a siding consigned from a point
within the state to another point within
the state. This car was coupled to
another in front of it, which was at-
tached to the engine, and the two cars
were pulled out upon the main track,
in order to place the car of chats in
the train. The brakeman was then re-
quired to uncouple it from the one in
front, which was not to be taken. To do
this, he necessarily went between the cars,
and was killed because of a defective
coupler upon the car to be taken out,
which was not equipped with an auto-
matic coupler as required by the federal
Safety Appliance Acts as amended by
Act March 2, 1903. It is heid: The
brakeman, when injured, was engaged
in interstate commerce, and the action
for resulting damages for his death is

within the purview of the Federal Em-
ployers’ Liability Act. Thornbro v.
Kansas, etc., R. Co., 91 Kan. 684, 139
Pac. 410, Ann. Cas. 1915B, 314.

Contrary ruling—In Van Brimmer
v. Texas, etc., R. Co. (C. C.), 190 Fed.
394, the plaintiff was a brakeman on a
train of the defendant which contained
cars being used for interstate ship-
ments of freight. In the train was a
car which was filled with merchandise
destined for a point within the state.
The shipment of this car originated in,
and was to end in the same state.
When the plaintiff was injured, he was
engaged in switching that intrastate
car alone. And the court was of the
opinion that the service in which he
was engaged was wholly in further-
ance of intrastate commerce, but
since the authoritative decision in New
York, etc, R. Co. v. Carr, 238 U. S.
260, 35 S. Ct. 780, the contrary is set-
tled law.

60. St. Louis, etc., R. Co. v. Seale, 229
U.S. 156, 57 L. Ed. 1129, 33 S. Ct. 651,
Ann. Cas. 1914C, 156; North Carolina
R. Co. v. Zachary, 232 U. S. 248, 58 L.
Ed. 591, 34 S. Ct. 305, Ann. Cas. 1914C,
159.

61. New York, etc., R. Co. v. Carr,
238 U. S. 260, 35 S. Ct. 780.
§ 45 FEDERAL EMPLOYERS’ LIABILITY ACT. 96

tinguishing this from the Behrens Case in New York, etc. R. Co. v.
Carr, 238 U. S. 260, 35 S. Ct. 780, the court said:

“The plaintiff was a brakeman on an interstate train. As such, it was
a part of his duty to assist in the switching, backing, and uncoupling of
the two cars so that they might be left on a siding in order that the
interstate train might proceed on its journey. In performing this duty
it was necessary to set the brake of the car still attached to the inter-
state engine, so that, when uncoupled, the latter might return to the
interstate train and proceed with it, with Carr and the other interstate
employees, on its interstate journey. The case is entirely different from
that of Illinois Cent. R. Co. v. Behrens, 233 U. S. 473, 58 L. Ed. 1051,
34 S. Ct. 646, Ann. Cas. 1914C, 163, for there the train of empty cars
was running between two points in the same state. The fact that they
might soon thereafter be used in interstate business did not affect their
intrastate status at the time of the injury; for, if the fact that a car
had been recently engaged in interstate commerce, or was expected
soon to be used in such commerce, brought them within the class of
interstate vehicles, the effect would be to give every car on the line
that character.”

If an employee was engaged in work upon a train, though only working
between points in the same state, he is engaged in interstate commerce when
the train runs between points in two states and through a third, and when
at the time of the injury there were in the train cars containing interstate
shipments.®2 :

An employee on a train running between points in two states is engaged
in interstate commerce when injured while transferring freight from one
car to another upon the train.®

An engineer, killed in a collision occurring just after the arrival of his
train from another state at the terminus of the road in the state in which
the injury occurred, and while engaged in switching certain cars of his
train preparatory to placing them in the yards according to orders previously
received, was held to be engaged in interstate commerce at the time of the
accident,°+ and a brakeman on an intrastate train carrying interstate ship-
ments is within the act when placing intrastate cars on a switch;®5 and a
stipulation that the decedent, “at the time of the injury causing his death
and immediately prior thereto, was employed as a switchman by this de-
fendant, a common carrier by railroad, operating a line of railroad be-
tween and through the states of Georgia and Florida, * * * and en-
gaged in commerce between the states, and that the said Charles Flanders, at
the said time of the injuries causing his death, and immediately prior thereto,

62. Effect of employee’s run on train 64. Breaking up or switching train
being intrastate.—Noel v. Quincy, etc. after arrival at terminus.—Kansas City,
R. Co. (Mo. App.), 182 S. W. 787. See, etc., R. Co. v. Pope (Tex. Civ. App.),
also, Peek v. Boston, etc., Railroad (D. 152 S. W. 185, motion for rehearing
C.), 223 Fed. 448. overruled in 153 S. W. 163.

63. Employee transferring freight at 65. Nashville, etc., R. Co. v. Banks,
intermediate point—Hubert v. New 156 Ky. 609, 161 S. W. 554.

York, etc., R. Co. (Conn.), 96 Atl. 967,
971.
97 EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. §§ 45-46

was acting as such switchman in the operating and handling of a certain
train of the defendant, * * * which train had just arrived in the city
of Palatka, * * * Fla, from * * * Valdostaa * * * Ga,
and was then and there being handled and operated in * * * Palatka,
Fla., by the employees of said defendant, including said Charles Emory
Flanders, preparatory to its leaving * * * Palatka, * * * Fla., for
a continuous movement of said train * * * to Valdosta, * * *
Ga.;” and that the injuries complained of occurred while the decedent was
thus engaged in interstate commerce and while the defendant was engaged
in interstate commerce; clearly show the decedent was fatally injured while
he was employed in interstate commerce as an employee of the defendant a
“common carrier by railroad,” engaged in interstate commerce.®¢

An engine which has been used in interstate commerce still continues to
retain its character until it reaches the location where it will remain until
called for another trip and does not loose its character when detached from
a train and waiting to be placed on a turntable to reach its proper place in
the roundhouse.*7 An employee working on an interstate train comes under
the act when switching the train from the depot to its regular resting place,
even though on the occasion of the injury the switching was being done in
the usual manner but for the purpose of clearing the track for a fast train,
so that when it had passed, an additional coach could be added to the switch-
ing train to make an extra intrastate run.®8

§ 46. Employees Switching Cars in Yards or between Local
Points.—Where, at the time of a fatal injury an employee was engaged in
moving several cars, all loaded with intrastate freight, from one part of the
city to another, this is not a service in interstate commerce, and so the in-
jury 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.6® In the case of Illinois Cent. R. Co. v. Behrens,?° a fireman of
one of the defendant’s switch engines was killed while working on an
intrastate train, although a good share of the time engaged in interstate com-
merce. The action was brought solely under the Federal Employers’ Lia-
bility Act. He was a member of a switching crew, who reported for duty
at a suburb of New Orleans, made up a train of empties intended for
various destinations, and hauled these empties to another point near New

66. Flanders v. Georgia, etc., R. Co, Cent. R. Co. v. Behrens, 233 U. S. 473,

68 Fla. 479, 67 So. 68.

67. Switching cars or train to usual
resting place.—Chesapeake, etc., R. Co.|
v. Kornhoff, 167 Ky. ae: 180 S. W. 523.

68. Chesapeake, etc., Co. v. Shaw
(Ky. App.), 182 S. W. oe

69. Employees switching cars in
yards or between local points.—Illinois

Fed Act—7

58 L. Ed. 1051, 34 S. Ct. 646, Ann.
Cas. 1914C, 163.

70. Same—Where only local cars be-
ing handled, at time of injury.—233 U.
S. 473, 58 L. Ed. 1051, 34 S. Ct. 646,
Ann. Cas. 1914C, 163, reversing 192 Fed.
581.
§ 46 FEDERAL EMPLOYERS’ LIABILITY ACT. 98
Orleans, and from the second point hauled another train back to the start-
ing point. At the time of the accident all of the cars of the train had orig-
inated at and were destined to points in the state. The court held that the
employee killed was not protected by the provisions of the federal act.

And where a railroad company employs a servant to work a part of his
time on a train engaged in interstate commerce and a part of his time to
work on a train doing purely local service, and the employee is hurt while
doing the local work, the transaction is governed by the law of the state
where the injury occurs, and not by the federal act. So a crew which makes
three or four trips a day out to the main line, carrying cars both for local
and interstate business, but at other times during the day they would shift
coal and coke cars from what were known as the ‘coke tracks,” and dis-
tribute them at different points, all local; one injured while engaged in doing
this purely local work, his action was properly based on the state stat-
‘tte, and not upon the federal law.7! Neither is a member of a crew pro-
tecting a switch, engaged in interstate commerce when injured while en-
gaged in shunting cars for a manufacturing plant, though at other times
engaged in interstate commerce.’? In this respect the decision of the Ore-
gon Supreme Court in Oberlin «. Oregon-Washington R., etc., Co.,*3 must
be considered as unsound, for there an employee, a member of a switch
crew, who handled indiscriminately both kinds of traffic was held to be
within the act when switching the private car used by the superintendent of
a division wholly within the state.

But employees engaged in switching an interstate car, or a cut of cars of
which one or more is interstate, are engaged in interstate commerce regard-
less of the length of the movement," and notwithstanding the fact that the
car upon which they may be riding and endeavoring to set the brakes was
engaged in intrastate commerce.7> Where the plaintiff was employed on a

71. Southern R. Co. v. Murphy, 9
Ga. App. 190, 70 S. E. 972.

72. Shanley v. Philadelphia, etc., R.
Co. (D. C.), 221 Fed. 1012.

73. Contrary rulings.——71 Ore. 177,
142 Pac. 554.

74, Switching interstate cars.—IJndi-
ana.—Vandalia R. Co. v. Holland (Ind.),
108 N. E. 580.

New York.—Barlow v. Lehigh Valley
R. Co., 214 N. Y. 116, 107 N. E. 814.

Washington—Snyder v. Great North-
ern R. Co. (Wash.), 152 Pac. 703.

In Devine v. Chicago, etc., R. Co.,
266 Ill. 248, 107 N. E. 595, affirmed in
239 N. S. 52, 36 S. Ct. 27, the case was
tried before the decision in the Beh-
rens Case and the evidence to show
that the character of the cars in the
switching train was slight but there
was uncontradicted evidence that at
least one car was interstate and this

made a prima facie case to which the
act was applicable.

But an instruction that if the plain-
tiff's usual employment was to switch
cars carrying interstate freight and
other cars carrying intrastate freight,
and that the plaintiff was required to
haul these indiscriminately without any
control in the matter, that, in law,
would constitute him an employee en-
gaged in interstate commerce, is not
technically correct within the rule as
laid down in Illinois Cent. R. Co.
v. Behrens, 233 U. S. 473, 58 L. Ed.
1051, 34 S. Ct. 646, Ann. Cas. 1914C,
163, unless qualified by the statement
that some of the cars being switched
at the time of the injury were loaded
with interstate shipments. Snyder v.
Great Northern R. Co. (Wash.), 152
Pac. 703.

75. Texas, etc., R. Co. v. Sherer (Tex.
Civ. App.), 183 S. W. 404.
99 EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. § 46
local switch engine, he is engaged in interstate commerce, when injured
while cutting out of an interstate train a defective car.7° It is not error to
refuse a charge that a yard conductor was not engaged in interstate com-
merce and therefore could not recover in his action brought under the fed-
eral act, when he was injured while removing two empty cars from a private
switch track, connecting with the yard, in order to place thereon two loaded
coal cars coming from without the state, the movement having commenced
but the engine uncoupled for the purpose of moving the empties.77 A fore-
man of a switching crew engaged in breaking up a train at a division point,
who was killed while switching a car destined to another state, is engaged
in interstate commerce.78

And where the deceased was engaged in distributing the cars from an
interstate train and clearing the track for another interstate train, this is suf-
ficient to show that he was engaged in interstate commerce warranting the
submission of the case to the jury. The possibility of the train having
dropped all cars that came from outside the state and taken up others, is
too remote to warrant withdrawing the case from the jury.7® And where at
the time of an accident the employee was a member of a switching crew
which was engaged in switching cars from points on the company’s tracks
to other points on said tracks, all in the city of Indianapolis; that the switch-
ing crew was engaged in handling all of the cars that belonged to the com-
pany, or that were in its trains as they came through the yards; that said
cars came from all parts of the country and were made up into trains which
went to all parts of the country; and that there were, in the cut of cars
being moved, some that went to a point without the state, both the company
and employee were engaged in interstate commerce,®° and an employee, a
member of a local train crew, hauling cars loaded with interstate commerce
to a point on the road where they could be conveniently taken by a regular,
through, or interstate train, is himself engaged in interstate commerce.§1

76. Sears v. Atlantic Coast Line R.
Co., 139 N. C. 446, 86 S. E. 176.

77. Pennsylvania Co. v. Donat (U.
S.), 36 S. Ct. 4.

78. Rich v. St. Louis, etc. R. Co.,
166 Mo. App. 379, 148 S. W. 1011. See,
also, the following cases cited in the
opinion: Chicago, etc., R. Co. v. Voel-
ker, 65 C. C. A. 226, 129 Fed. 522, 70
L. R. A. 264; United States v. Colo-
rado, etc., R. Co., 85 C. C. A. 27, 157
Fed. 321, 15 L. R. A, N. S., 167, 13
Am. & Eng. Ann. Cas. 893; Norfolk,
etc, R. Co. v. United States, 101 C.
C. A. 249, 177 Fed. 623.

79. Seaboard, etc., Railway v. Koen-
necke, 239 U. S. 352, 36 S. Ct. 126.

In Fairchild v. Pennsylvania R. Co.
(App. Div.), 155 N. Y. S. 751, it is held
that a brakeman or switchman working
on a train operated exclusively within
a state, belonging to an intrastate com-

pany is not engaged in interstate com-
merce so as to come under the act,
when he was breaking up a train of
empty cars preparatory to the forma-
tion of a new train, even though the
train he was breaking up had carried
interstate baggage which had been un-
loaded before the accident.

80. Vandalia R. Co. v. Holland
(Ind.), 108 N. E. 580.
Same — Question for jury. — But

where an employee was assisting to
move a car, it w&s held a question for
the jury, whether at the time it was
being moved and the injury occurred
it was the intention of the railroad in
moving it to load it with an interstate
shipment. Bresky v. Minneapolis, etc.,
R. Co., 115 Minn. 386, 132 N. W. 3°7.

81. Placing cars to be taken by in-
terstate train—Montgomery v. South-
ern Pac. Co., 64 Ore. 597, 131 Pac. 507,
47 L. R.A, N.S, 13.
FEDERAL EMPLOYERS LIABILITY ACT. 100

§§ 46-47

Though all cars of an interstate train are impressed with that character
of service theydo not retain it, if they are otherwise local cars, once the
train has left them at their destination. And so an employee does not come
within the act who is injured at a time when he was assisting in moving six
freight cars, which had been left by a fast interstate train, but put into it
and taken out of it at intrastate points, and the train had left several hours
before the accident, and none of the cars contain interstate freight.8?

The interstate character of a car has ceased, after it has completed its
trip, been unloaded and placed on a storage track subject to future orders,
so that an employee injured by it while it is so stored is not engaged in inter-
state commerce so as to sue under the act.88 Though the action was not
brought umder the act of 1908, for the reason that the injury occurred be-
fore it was enacted, but as illustrative of this class of, service it is held that,
a defective freight car when loaded with interstate freight, remains in inter-
state commerce when refused by a connecting carrier and on the refusal is
placed on a track with other interstate cars and moved in connection with
them.8+ So an employee is engaged in interstate commerce when switching
cars that had been repaired, from the repair track to a storage track, when
one of the cars being switched contained an interstate shipment, even though
such car had not yet been repaired and was not to be removed from the
repair track, except that its movement was necessary in order to move the
other cars.85 In the Delk case, the car was marked “in bad order,” and a
repair piece sent for. Instead of withdrawing the car after thus being noti-
fied of its condition, the company kept on moving it about in connection
with other cars, and finally ordered the injured employee to couple it to an-
other car. This he tried to do with the natural result, and was crippled for
life. "The court held that the car was being used in interstate commerce at
the time of the injury and that the case amply justified the verdict, and that
the judgment should be affirmed.8¢

§ 47. Local Employees; as Clerks, Hostlers, Watchmen, Garden-
ers, Car Loaders, Inspectors.—It has been held that a clerk in a yard
engaged in taking the number of cars of an interstate train,8? and one sealing

82. Switching local cars left by in-
terstate train—Norton v. Erie R. Co.,
163 App. Div. 466, 148 N. Y. S. 769,
following Illinois Cent. R. Co. v. Beh-
‘rens, 233 U. S. 473, 58 L. Ed. 1051, 34
S. Ct. 646, Ann. Cas. 1914C, 163.

88. Switching cars that are in stor-
age.—Moran v. Central R. Co. (N. J.),
96 Atl. 1023.

84. Switching car placed on side
track for repairs—Delk v. St. Louis,
etc., R. Co., 270 U. S. 580, 55 L. Ed.
590, 31 S. Ct. 617.

85. Bolch v. Chicago, etc., R. Co.
(Wash.), 155 Pac. 422.

86. Delk v. St. Louis, etc., R. Co.,

220 U. S. 580, 55 L. Ed. 590, 31 S. Ct.
617, 620.

87. Clerks taking numbers of cars
in interstate train, or sealing interstate
cars.—St. Louis, etc. R. Co. uv. Seale,
229 U. S. 156, 57 L. Ed. 1129, 33 S.
Ct. 651, Ann. Cas. 1914C, 156, revers-
ing 148 S. W. 1099; Pittsburgh, etc., R.
Co. v. Farmers’ Trust, etc., Co. (Ind.),
108 N. E. 108.

Evidence that an employee whose
duty it was to record the numbers of
cars was engaged in interstate com-
merce was sufficiently sustained where
from the evidence given by A., agent
of the shipping department of a glass
manufacturing company, that such
101 EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTABE, COMMERCE. § 47
cars some of which are bound for points out of the state,88 are engaged in
interstate commerce within the meaning of the act. In the case of St. Louis,
etc., R. Co. v. Seale,89 which arose in a state court of Texas and was after-
wards taken to the Supreme Court of the United States on a writ of error,
it appeared that the defendant was a Texas corporation owning and oper-
ating a railroad extending from the boundary between Oklahoma and Texas
southward through North Sherman. This railroad connected at the Okla-
homa boundary with another one extending northward through Madill, and
the two were so operated that trains were run through from North Sherman
to Madill, and from Madill to North Sherman. The defendant was en-
gaged in both intrastate and interstate commerce, much the larger part of
the traffic handled in its North Sherman yard being interstate. The de-
ceased was employed by the defendant as a yard clerk in that yard, and his
principal duties were those of examining incoming and outgoing trains and
making a record of the numbers and initials on the cars, of inspecting and
making a record of the seals on the car doors, of checking the cars with the
conductor’s lists, and ‘of putting cards or labels on the cars to guide switch-
ing crews in breaking up incoming, and making up outgoing trains. His
duties related to both intrastate and interstate traffic, and at the time of his
injury and death he was on his way through the yard to one of the tracks
therein to meet an incoming freight train from Madill, Oklahoma, composed
of several cars, ten of which were loaded with freight. His purpose in going
to the train was that of taking the numbers of the cars and otherwise per-
forming his duties in respect to them. While so engaged he was struck and
fatally injured by a switch engine, which, it was claimed, was being negli-
gently operated by other employees in the yard. Upon this state of facts
in St. Louis, etc., R. Co. v. Seale, 229 U. S. 156, 57 L. Ed. 1129, 33 S. Ct.
651, Ann. Cas. 1914C, 156 the court said:

“In our opinion the evidence docs 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 move-

company received each day at Gas
City, over appellant’s lines, from the
state of West Virgina, as many as one
car of coal, and that on December 13th
the company had loaded a car with
merchandise for shipment the next
morning over appellant’s lines to the
state of California, and the jury was
further warranted in finding that it was
decedent’s dutv on the morning of De-
cember 14th to make a record of the
number on said cars used in interstate
traffic, and that he had entered on the
performance of such duty. Pittsburgh,
etc., R. Co. v. Farmers’ Trust, etc., Co.
(Ind.), 108 N. E. 108.

88. Pecos, etc., R. Co. v. Rosenbloom
(Tex.), 177 S. W. 952 (for former opin-
ion, see 173 S. W. 215), affirmed in 36

S. Ct. 390; Code v. Atchison, etc., R.
Co., 92 Kan. 132, 139 Pac. 1177.

An employee, who as a ticket clerk
was required to be in and at the switch
yard of the defendant, in order to take
and preserve a record of numbers on
outgoing cars, and seal those which
needed it, when so engaged with a
train carrying interstate shipments is
engaged in interstate commerce, so
that an action can not be maintained
for his death by his widow, and an
instruction that she could not do so is
erroneously refused. Pecos, etc. R.
Co. v. Rosenbloom (U. S.), 36 S. Ct.
390.

89. 229 U. S. 156, 57 L. Ed. 1129, 33
S. Ct. 651, Ann. Cas. 1914C, 156, re-
versing 148 S. W. 1099.
FEDERAL EMPLOYERS’ LIABILITY ACT. 102

§ 47

ment of interstate freight; and the duty which the deceased was per-
forming was connected with that movement, not indirectly or remotely,
but directly and immediately. The interstate transportation was not
ended merely because 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 unloading or delivering freight, and
this was as much a part of the interstate transportation as was the
movement across the state line.”

As seen before a hostler or helper engaged in preparing an interstate en-
gine to go out is within the act,9° but the same is not true of those caring
for engines generally, who in order to come within its terms must have been
engaged at the time of the injury at work upon engines entirely engaged in
interstate commerce, or preparing one to go, or caring for one upon its re-
turn from, an interstate service.91_ Thus an employee in a roundhouse whose
duty consisted in receiving, taking care of, having ready for use, the loco-
motives, is not engaged in interstate commerce when steaming up an engine
preparatory to a run, when such engine is used in intrastate and interstate
commerce, its last trip being intrastate and the nature of the trip for which
it was being prepared was not shown.92 And assuming that an engine
hostler, whose duty was to coal, sand, water and do other work required
on engines before and after service is engaged in interstate commerce, as
contemplated by the act, he is not so engaged when injured by a piece of
disused machinery which was being lifted for the purpose of shipping it
to another railroad yard.®#

On the other hand it has been held that as his duties were to engines in
both kinds of service that an employee engaged in cleaning an ash pit is
engaged in interstate commerce.** In Grybowski v. Erie R. Co. (N. J.),
95 Atl. 764, the court said:

“The proofs show that the ash pit was a part of the plant 6f the defend-
ant company, thatit was a necessary part of that plant, and that it was
used ‘both in interstate and intrastate commerce. The keeping of it
clean, and thereby maintaining its effectiveness, was required equally
for both kinds of commerce, just as the keeping in repair of tracks or
bridges which are used for both kinds of commerce is a necessary inci-
dent to each of them.”

90. Hostlers.—See ante, “Employees
Preparing Interstate Trains to Go
Out,” § 43.

91. La Casse v. New Orleans, etc.,
R. Co., 135 La. 129, 64 So. 1012; Gray
v. Chicago, etc. R. Co., 153 Wis. 637,
142 N. W. 505, affirmed in 35 S. Ct.
620, on ground of no error in apply-
ing state law.

An employee in a roundhouse whose
duties required him to operate a turn
table and when not so occupied to wipe
engines, is engaged in interstate com-

merce. Cross v. Chicago, etc. R. Co.
(Mo.), 177 S. W. 1127.

92. La Casse v. New Orleans, etc.,
R. Co., 135 La. 129, 64 So. 1012.

93. Erie R. Co. v. Van Buskirk (C.
C. A.), 228 Fed. 489. ‘

94. Employee cleaning ash pit.—
Grybowski v. Erie R. Co. (N. J.), 95

"Atl. 764; Cincinnati, etc. Ry. Co. v.

Clarke (Ky. App.), 185 S. W. 94. See,
also, Chicago, etc., R. Co. v. Gray, 237
U. S. 399, 35 S. Ct. 620.
103 EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. § 47

A watchman or detective, engaged in his general duties in a large railroad
yard, though there may be cars therein containing interstate shipments, does
not come within the act if at the time of his injury, his work was not in con-
nection with any interstate cars.°44

But a special officer or watchman employed by an interstate railroad to pre-
vent trespassers getting on its cars, was engaged in interstate commerce,
when preventing three men from boarding an interstate train and his em-
ployment in such commerce still continued, when injured, while in pursuit
of them in order to drive them from the company’s property.2> In Smith 7.
Industrial Acci. Comm. (Cal.), 147 Pac. 600, the court said:

“Touching the claim of petitioner that, whatever character his act may
have had as being connected with the operation of an interstate train
up to the moment that he had driven the intruders therefrom and had
himself alighted on the ground, his further act in attempting to drive
the men away was one not connected with the first duty, and was of a
local nature only, it appears that the act was a continuous one without
a break or stop. The watchman caused the men who sought to trespass
on the interstate train to leave it and then, in the words of the finding
made by the commission, he ‘was following them to drive them off the
company’s property when he stumbled and his revolver fell from the

, holster and was discharged.’ It would be to mark a very fine line of
distinction to say that from the moment the watchman and the intruders
stepped from the interstate train the acts of the former changed from
being in aid of interstate commerce and his further motions in pursuit
of these same intruders became colored with conditions of a purely
local employment. The federal courts have not indulged such close
distinctions in applying the statutes.”

A watchman at a grade crossing where the railroad crossed a street in a
city is not engaged in interstate commerce, when at the time he was killed,
he was protecting the crossing for a local and an interstate train.°* In this
case the action was brought by the widow under the Georgia law and the
defendant moved for a directed verdict on the ground that the federal act
applied. It was held properly refused on the following evidence:

“Tt was his duty ‘to protect the crossing—to protect the people who were
crossing there from being injured by the passing of trains.’ Immediately
before the homicide, as one of the defendant’s freight trains approach-
ing from the south was about to pass over the crossing, the watchman
who was on duty gave a signal of warning to a traveler on the street,
who, approaching from the west, was about to pass over the crossing.
He then turned to warn another traveler on the street, who was ap-
proaching the crossing from the east, and, as he did so, a passenger
train of defendant on a different parallel track, coming unobserved
from the north, struck and killed him. The freight train was going
from Atlanta, Ga., to Etowah, Tenn., and carried freight between points

94a. Watchman.—Chicago, etc., Ry. 95. Watchman.—Smith v. Industrial
Co. v. Industrial Board (Ill.), 113 N. Acci. Comm. (Cal.), 147 Pac. 600.
E. 80. : 96. Louisville, etc, R. Co. v. Bar-

rett, 143 Ga. 742, 85 S. E. 923.
FEDERAL EMPLOYERS’ LIABILITY ACT. 104

§ 47

in Georgia, but whether it had freight for points beyond the state of
Georgia does not appear. The passenger train was one operated be-
tween Tate, Ga., and Atlanta. This evidence was insufficient to show
that the plaintiff's husband was engaged in interstate commerce, within
the meaning of the Federal Employers’ Liability Act, at the time of the
catastrophe.’’97

The decision may be sustained for the reason assigned that “in the first
place the duties of the watchman, under his employment, were primarily
for the safety of the public, and do not appear to have extended to any con-
trol of the movements of the train, or to have extended to repairs or physical
maintenance of any of the defendant’s indispensable instrumentalities of
commerce, such as a railroad bridge, tracks, or the like.” But not for that
assigned “in the second place [in that] it does not appear that the freight
train, on account of the approach of which the watchman was warning pe-
destrians not to come upon the tracks, was engaged in carrying freight to
points beyond the limits of this state, or that the passenger train which
inflicted the injury was engaged in interstate commerce.” For as to the
train between the states, it was an interstate train.

An assistant gandener employed, by a railroad company engaged in inter-
state commerce, to cultivate the yard about one of its stations, and to gather
trash and burn it, is not engaged in interstate commerce.®§

An employee actually loading interstate freight into a car for interstate
transportation, is engaged in interstate commerce.9® But because a defend-
ant railroad company was authorized to and did at times engage in inter-
state commerce, and because the plaintiff was employed in loading a flat car
with rails which had been used or were to be used in the repair of tracks,
does not show that the plaintiff was engaged in interstate commerce, the
proof must go further and show that the work plaintiff was performing
was of a character directly pertaining to and a part of interstate commerce.!
Likewise the unloading of steel rails from a car after they had reached their
destination, in which service plaintiff was injured, was held not to be inter-
state commerce, within the Act of April 22, 1908.2 In the last cited case,
decided on authority of Pedersen v. Delaware, etc., R. Co.,3 outside of the
use to be made of the rails, the court was of opinion that the original trans-
portation of the rails from a point in another state was interstate commerce,
but after reaching their destination they ceased to be so, and that the sub-
sequent transportation to the point where they were to be used in replacing
old rails was not an engagement in commerce—certainly not in interstate

97. Louisville, etc, R. Co. v. Bar-
rett, 143 Ga. 742, 85 S. E. 923.

98. Gardener.—Galveston, etc., R. Co.
v, Chojnacky (Tex. Civ. App.), 163 S.
W. 1011.

99. Employees engaged in loading or
unloading cars.—lIllinois Cent. R. Co.

v. Porter, 125 C. C. A. 155, 207 Fed.
Sli, 316.

1. Tsmura v. Great Northern R. Co.,
58 Wash. 316, 108 Pac. 774.

2. Same.—Pierson v. New York, etc.,
R. Co. 83 N. J. L. (54 Vr.) 661, 85
Atl. 233.

8. 117 C. C. A. 33, 197 Fed. 537.
105 EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. § 47
commerce.* So that a plaintiff injured by his fellow servants dropping one
of the rails on his foot could not recover under the act.

An employee engaged in unloading a car of paint to be placed in a store
house, from which it is to be subsequently taken and‘used to paint cars does
not come within the act, when it is not shown where the paint came from
or how or when it is to be used, but only that at some future time it would
be used to paint interstate and intrastate cars.5

An employee engaged to inspect a train is engaged in interstate commerce
so that an action may be maintained for an injury to him or his death if it
occurred while he was performing these duties in connection with an inter-
state train.6 An employee whose duty consisted in seeing to the coupling
of cars, and air hose upon cars placed upon a transfer track, is engaged in
interstate commerce so as to come within the act when some of the cars
being coupled were engaged in interstate commerce.? A car inspector at a
local point while engaged in disconnecting the steam line on a passenger
train running between points in two states, at a point in a third state where
engines were changed, is engaged in interstate commerce. The disconnec-
tion being made in order to couple another engine for the continuation of
the run.8 A train inspector is not engaged in interstate commerce when in-
jured so as to come within the act, when the train he was inspecting is an
intrastate passenger train, carrying no interstate passengers or baggage;
and the fact that it generally carried such passengers, that it was advertised
to do so, or subsequently on the same trip should do so, would not alter
the case.®9 And an employee engaged in inspecting an intrastate train does
not engage in interstate commerce by reason of the fact that the prompt and
safe movement of an intrastate train is so necessary to the safety and un-
impeded movement of interstate trains moving over the same track, that
the inspection of the intrastate train becomes a part of interstate com-
merce.?°

On the other hand as a car inspector is engaged in interstate commerce
when inspecting a train which is to be hauled from a point in one state to
a point in another, his employment does not cease when he is ordered by a
superior to assist in raising a car that had been wrecked in a collision and
under which a co-employee was caught.11

4. This point of the decision would
seem to be sustained by Chicago, etc.,
R. Co. v. Harrington (U. S.), 36 5S.
Ct. 517.

5. Salmon v. Southern R. Co.
(Tenn.), 180 S. W. 165.

6. Inspection of cars or train.—Dut-
ton v, Atlantic, etc., R. Co. (S. C.), 88
S. E. 263.

7. Johnson v. Great Northern R. Co.,
102 C. C. A. 89, 178 Fed. 643.

8. Kansas, etc, R. Co. v. Miller
(Ark.), 175 S. W. 1164, on authority of

Kansas, etc., R. Co. v. Leslie, 112 Ark.
305, 167 S. W. 83, Ann. Cas. 1915B, 834.

9. Boyle v. Pennsylvania R. Co. (C.
C. A.), 228 Fed. 266, affirming 221 Fed.
453.

10. Boyle v. Pennsylvania R. Co. (C.
C. A.), 228 Fed. 266, affirming 221 Fed.
453.

11. Same—When assisting at wreck.
—Southern R. Co. v. Puckett, 16 Ga.
App. 551, 85 S. E. 809.

“The plaintiff had not completed his
work of inspecting the interstate cars,
and while so engaged a sudden emer-
§§ 47-48 FEDERAL EMPLOYERS LIABILITY ACT. 106

An employee stationed near a railroad track, in the act of cleaning sten-
cils used by the defendant railroad company to mark cars owned and used
by it in its interstate business, is not engaged in interstate commerce.!2

§ 48. Employees Not Particularly Engaged—Effect of Past or
Future Service.—The distinction as made in Illinois Cent. R. Co. v. Beh-
rens,'® that whether or not an employee comes within the act, when he is
engaged in interstate commerce at some times, and purely local commerce
at another, is to be determined by the nature of the work at the time of the
injury, leaves for consideration the status of an employee upon his change
from one to the other and while waiting for instructions as to future
work.

It may be correctly said that an employee whose whole time at work is
spent in interstate commerce, may be also engaged therein during his periods
of leisure; that is, while doing nothing but waiting for work;!4 but an em-
ployee engaged in interstate business and part in local or intrastate business,
it would not be logically said that he was “employed in interstate commerce”
at all times, or during his intervals of leisure.15

What an employee had been doing before the time of the accident, or
what he might have done shortly thereafter, if the accident had not hap-
pened, is not very important in determining this question. The important
inquiry is as to what he was doing at the time the accident occurred.1° “The
true test is the nature of the work being done at.the time of the injury.”!7
Thus evidence that shortly before his injury an employee was engaged in
interstate traffic; also, evidence tending to show that the next service he
would be required to perform would be in relation to cars engaged in inter-
state commerce, and where it appears without dispute that he had finished
the duties required of him by prior orders of the master, and was, at the
time of the injury, proceeding to the master’s office for further orders and
direction as to his service, so that he was not then and there employed in
moving or handling cars engaged in interstate commerce, that service having

gency, caused by the wreck, arose, and,
in obedience to the rules of the com-
pany, he hastened to the scene of the
wreck to render assistance, and was
then expressly instructed by an em-
ployee of the company superior to him
in authority to assist in ‘jacking up’ the
wrecked car; and we think that, when
so engaged, under the ruling of the
Supreme Court of the United States in
North Carolina R. Co. v. Zachary, 232
U. S. 248, 58 L. Ed. 591, 34 S. Ct. 308,
Ann. Cas. 1914C, 159, he was still en-
gaged in interstate commerce.” South-
ern R. Co. v. Puckett, 16 Ga. App. 551,
85 S. E. 809.

12. Employee cleaning stencils.—IIli-
nois Cent. R. Co. v. Rogers, 136 C. C.
A. 530, 221 Fed. 52.

13. Effect of past and future service.
—233 U. S. 473, 58 L. Ed. 1051, 34 S.
Ct. 646, Ann. Cas. 1914C, 163.

14. See Gray v. Chicago, etc, R.
Co., 153 Wis. 637, 142 N. W. 505, af-
firmed in 35 S. Ct. 620, for harmless
error if any.

15. See Gray v. Chicago, etc., R. Co.,
153 Wis. 637, 142 N. W. 505, affirmed
in 35 S. Ct. 620, for harmless error if
any.

16. Erie R. Co. v. Jacobus, 137 C.
C. A. 151, 221 Fed. 335; Erie R. Co.
v. Welsh, 89 O. St. 81, 105 N. E. 189.

17. Illinois Cent. R. Co. v. Behrens,
233 U. S. 473, 58 L. Ed. 1051, 34 S. Ct.
646, Ann. Cas. 1914C, 163; Shanks v.
Delaware, etc, R. Co. (U. S.), 36 S.
Ct. 188; Chicago, ete, R. Co. v. Har-
rington (U. S.), 36 S. Ct. 517.
107 EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. § 48
been fully completed and ended, and he had not reengaged in any similar
employment, there is no evidence tending to prove that, at the time the ac-
cident actually happened, the plaintiff was then and there engaged in inter-
state commerce, and the mere fact that shortly before that time he had been
so engaged, or that the next service his master would require would be of
interstate character, cannot and does not establish the fact that at the time
of the injury he was so engaged.!8 But whether or not an employee was
engaged in interstate commerce was a question for the jury when the evi-
dence showed they had just completed an operation of interstate commerce
and there was a conflict in the evidence as to what their next operation was
to be. Plaintiff's evidence showing that they were waiting to move more
interstate freight, and defendant's that they had completed such movements
and were simply waiting further orders, which may or may not have been
interstate.19 However, it has been held, it would seem correctly, that an
employee who is engaged in a yard and there continuously and indiscrimi-
nately switching intrastate and interstate cars, is engaged in interstate com-
merce, when after finishing the distribution of such a cut of cars they had

18. Erie R. Co. v. Welsh, 89 O. St.
81, 105 N. E. 189.

19. When question for jury.—Erie
R. Co. v. Jacobus, 197 C. C. A. 151, 221
Fed. 335.

The facts in this case show that,
“The accident happened at the defend-
ant’s Jersey City dock, known as No.
8, at about 2 o’clock on the morning
of October 27, 1912. The tugboat upon
which the plaintiff was employed had
been engaged throughout the preced-
ing evening in moving the defendant’s
trafic from and to various points in
New York Harbor. At about 11:30
o’clock of the night of the accident, ac-
cording to the contention of the de-
fendant, the tug moved light from
Dock’ 8, Jersey City, known as_ the
headquarters dock, or the home dock,
of the tug, to Dock 2, Jersey City. It
then moved a barge from Jersey City
to Brooklyn, and then proceeded light
from Brooklyn to Pier 7, East River.
It then proceeded upon its last, and
for the purpose of this case its im-
portant, movement, with a loaded float
from Pier 7, East River, in the state
of New York, to Dock 4, Jersey City,
in the state of New Jersey. After de-
livering the float at the pier last named,
it is claimed that the tug completed its
interstate trip, ceased to engage in in-
terstate traffic, and in default of fur-
ther orders moved light from Dock 4
to Dock 8, its home dock in Jersey
City, the two docks being distant one
from the other about 100 yards, there
to await further orders. It was while
the tug was being tied up at Dock 8

on the last movement that the accident
occurred. The testimony given by the
plaintiff discloses a movement of an
altogether different character. Ac-
cording to this testimony, after moving
trafic about New York Harbor
throughout the evening, the tug pro-
ceeded with barges of freight from the
terminal of the defendant at Weehaw-
ken, in the state of New Jersey, to the
Bush terminal in Brooklyn, in the state
of New York, and there left some of
the barges, and with the balance pro-
ceeded to Staten Island, in the state of
New York, and there left the remain-

.der of the barges, and then proceeded

light directly to Pier 8, the home dock
in Jersey City, in the state of New Jer-
sey, for the purpose of executing fur-
ther orders. Upon the part of the
plaintiff there is testimony that the tug
went to Dock 8 in Jersey City, state
of New Jersey, for the purpose of tak-
ing another tow from Dock 8 in Jer-
sey City to Staten Island, in the state
of New York. Upon approaching
Dock 8 the tug blew for the tug dis-
patcher, by whose orders the move-
ments of the tug were controlled, in
response to which the dispatcher called
that the float was not ready, and the
captain proceeded to turn around and
back into the slip, and the accident
happened in the act of making fast.
The question therefore arose, under
the two lines of testimony, whether at
the time the plaintiff was injured the
tug was engaged in interstate com-
merce.” Erie R. Co. v. Jacobus, 137
C. C. A. 151, 221 Fed. 335.

°
§§ 48-50 FEDERAL EMPLOYERS’ LIABILITY ACT. 108
gone, with only the engine outside of the yard, in order to re-enter upon an-
other track to continue their switching work, and he was injured while re-

setting switches.°°

§ 49. Employees Engaged upon or about Ferryboats or Other
Vessels Operated by Railway Companies.—The statute does not limit
the liability of the carrier to its track or train service, but expressly refers
to defects or negligence in boats, wharves, and other equipment, provided
they and the injured party are engaged in interstate commerce. The main-
tenance of a ferry may be within the charter powers of a railroad company,
and although it cannot be said that the voyage is a carriage by rail, the Act
of April 22, 1908, as amended by the Act of April 5, 1910, applies to serv-
ants of an interstate railway employed upon a ferryboat,?! or a tugboat,
used to move floats loaded with cars,22 owned by such carrier and operated
in interstate commerce in connection with its railroad.

Thus in the last cited case an employee on a tugboat, used to move floats
on which cars were transferred from point to point in one state, and from
points in one state to points in another, so that the cars could make connec-
tion and reach their destination, is within the act and can recover for an
injury to his hand, due to the negligence of the defendant while he was at-
tempting to secure a line from the boat to the dock; if the cars to be moved
at the time of the injury were interstate cars, which was held a question
for the jury.28

§ 50. Persons Employed Jointly by Railroad Company and An-
other—Pullman Employees, Express Agents, etc.—Persons employed
jointly by a railway company and another company in the operation and
management of a train are held to be employees of the railway company,
within the meaning of the Employers’ Liability Act.24 Thus, though in
numerous cases it is held that the porter of a pullman car is not an em-

20. Change in indiscriminate work.—
Pittsburgh, etc. R. Co. v. Glinn, 135
C. C. A. 46, 219 Fed. 148. See post,
oe and Burden of Proof,”

148.

21. Employees upon ferryboats, etc.,
operated by railway company.—The
Passaic (D. C.), 190 Fed. 644, 649, af-
firmed in 122 C. C. A. 466, 204 Fed. 266.
See also, Bougham v. New York, etc.,
R. Co., 36 S. Ct. 592; Hurley v. Illinois
Cent. R. Co. (Minn.), 157 N. W. 1005.

Employee unloading coal from car to
boat for purpose of transshipment.—
As to the case of a yard brakeman, in-
jured while engaged in handling his
brake in the process of unloading,
through the device of an unloading
machine, a carload of coal in transit
from Pennsylvania to Wisconsin, the
unloading being in connection with the
transshipment from car to boat inci-

dental to such through shipmertt, see
the case of Erie R. Co. v. Kennedy,
112 C. C. A. 76, 191 Fed. 332, in which
it was assumed without controversy
that he was engaged in interstate com-
merce within the meaning of the fed-
eral act at the time of his injury. The
defendant insisting, however, that the
plaintiff had not stated a case within
the act because not specifically basing
his action thereon. See, also, ante,
“Limited to Railroads,” § 11.

22. Erie R. Co. v. Jacobus, 137 C.

_C. A. 151, 221 Fed. 335.

28. Erie R. Co. v. Jacobus, 137 C.
C. A. 151, 221 Fed. 335.

24. Persons employed jointly by rail-
road company and another—Pullman
employees, express agents, etc.—Oliver
v. Northern Pac. R. Co. (D. C.), 196
Fed. 432, 435.
109 EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. § 50
ployee of the railroad company over whose tracks the car is operated, still
where it appears that the railroad and the Pullman Company were joint
owners of the pullman cars and they had entered into a contract to form an
association for the operation of the cars, the Pullman Company to have the
management of the association, but all obligations were to be assumed and
borne by the association; the association was to furnish employees to col-
lect fares and wait upon and provide for the comfort of the passengers,
which employees were to be subject to the rules of the railroad company
governing its own employees and the car earnings of the association, after
deducting expenses, were to be divided between the railroad and the Pull-
man Company in proportion to. their respective interests; from such an
agreement the railroad and Pullman Company were joint owners of the
cars and the Pullman Company, as manager of the association, was simply
-an agent of the railroad company which was further recognized by the con-
tract of the association in which it is provided that in event of injury to an
employee of the association the railroad company was to be liable only to
the same extent as if the employee injured was its employee. Under these
facts a porter employed on an association car was undoubtedly an employee
of the railroad company and a contract given providing for release from in-
juries was void under the federal act.2° There can be no recovery in such
a case, however, where there is no testimony offered at the trial tending
to show that the relation of master and servant existed between a de-
ceased porter and the defendant company.?6

As the relation of carrier and passenger exists in every case in which the
carrier receives and agrees to transport another not in its employment re-
gardless of the question as to with whom the contract was made, an em-
ployee of an express company employed and paid by it and entitled to ride
upon defendant’s cars under a contract between the companies, is a passen-
ger though his work required him also to handle baggage for the defendant
railroad company.2* Thus where the complaint alleged that the deceased
was an employee of an express company, which the defendant railroad ad-
mitted in its answer and there was nothing in the course of the trial to ob-
viate the effect of this allegation and admission, the railroad is not liable.?8

25. Porter on pullman car.—Oliver company for damages for injury suf-

v. Northern Pac. R. Co. (D. C.), 196
Fed. 432.

26. Same—Evidence to show relation
of master. and servant.—Oliver_ v.
Northern Pac. R. Co. (D. C.), 196 Fed.
432, 434.

27. Express messenger—Presumed
to .be a passenger, when.—Missouri,
etc, R. Co. v. Blalack, 105 Tex. 296,
147 S. W. 559.

28. Missouri, etc, R. Co. v. West,
38 Okla. 581, 134 Pac. 655, dismissed for
want of jurisdiction in 34 S. Ct. 471.

In an action brought by a widow
under a state statute against a railway

fered by her husband which resulted
in his death, the petition alleged that
the deceased was employed by the
American Express Company as an ex-
press messenger; that, in addition to
his duties as an express messenger, he
handled the personal baggage of the
inter and intrastate passengers of the
railway company, which was engaged
in interstate commerce. The answer
of the defendant admitted the forego-
ing allegations, and further alleged
that the deceased, “in performing said
duties in handling said baggage, was
doing so under and by virtue of his
FEDERAL EMPLOYERS’ LIABILITY ACT. 110

§ 50

In considering the status of the express messenger as a joint employee in
Missouri, etc., R. Co. v. West, 38 Okla. 581, 134 Pac. 655, 658, dismissed for
want of jurisdiction in 232 U.S. 682, 34S. Ct. 471, the court said:

“That the deceased was also engaged in handling personal baggage, in
addition to his duties'as express messenger, is sufficient to create the
presumption that he was jointly employed by the railway company.

* * Tt is not disputed that the deceased handled interstate baggage ;
but the answer explains that in handling said baggage he was doing so
under and by virtue of his said employment by said American Express
Company. Moreover, there are no averments in the pleadings from
which an inference may be reasonably drawn that any contract of em-
ployment was ever entered into between the deceased and the railway
company. The language of the act of congress carries with it the idea
and the essence of a contract. To be employed by one is to be en-
gaged in his service, to be used as an agent or substitute in transacting
his business, to be commissioned and intrusted with the management
of his affairs. In our judgment, the words, ‘while employed by such
carrier,’ construed in connection with the context, is equivalent to
‘while hired by such carrier,’ which implies a request and a contract for
compensation. The persons falling within the meaning of the act are
those hired by the railway company, or those who are working for it
at its request and under an agreement on its part to compensate them
for their services. * * * The case of Missouri, etc., R. Co. uv.
Blalack, 105 Tex. 296, 147 S. W. 559, is directly in point on the ques-
tion now under consideration. In that case the railroad company
pleaded that Blalack was in its employ at the time he was injured; but
the only proof of employment was that Blalack handled baggage, which
was the work of an employee of the railway company. The court said:
‘Where, in an action against a railroad company for negligent death,
the evidence of plaintiff showed that decedent was an agent of an ex-
press company, employed and paid by it, and entitled to ride on the
trains of the railroad company, under a contract between the two com-
panies, and that he was killed through the negligence of the employees
in charge of the train, the railroad company, engaged in interstate com-
merce, must show that plaintiff’s claim was unfounded, and that de-
cedent was in its employ, to avail itself of the Federal Employer’s
Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65), and, where it
failed to do so, the state law will govern the right to recover.’ ”

Where an action was brought by the widow to recover for the death of an
express messenger and the defendant sought to show that the parties were
engaged in interstate commerce and that the federal act should apply to the
exclusion of the state law and pleaded that the employee was in its employ
at the time of the injury; the court admitting that the parties were en-
gaged in interstate commerce and the supremacy of the federal act, held

said employment by the said Ameri-
can Express Company.” Held, that
the pleadings disclose that the de-
ceased, a resident of the state of Kan-
sas, suffered the injuries which resulted
in his death while he was employed by
the American Express Company as an
express messenger, and not while he

was employed by the railway company
in interstate commerce, and that the
action was properly brought by the .
widow under the state law. Missouri,
etc, R. Co. v. West, 38 Okla. 581, 134
Pac. 655, dismissed ‘for want of juris-
diction in 34 S. Ct. 471.
111 EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. §§ 50-51

that the defendant failed to prove that the relation of employer and em-
ployee existed. The only proof being that he handled baggage for them
and there was no proof of employment, payment of wages, or the right of
control over him.?9

But a local express agent, a joint employee of a railroad is not employed
by the railroad in interstate commerce when he is removing an interstate
express shipment from its place of deposit on the station grounds into the
station. In such a case he, as agent of the express company, was doing
that company’s duty, and not the duty of the defendant.3°

§ 51. Employees Going to, or Returning from, Work; Waiting
to Go on Duty; Turning Aside During Employment; etc.—An em-
ployee when going or returning from work in order to come within the
protection of the statute, should be going:to perform, or returning from the
performance of some work of an interstate character.31_ And an employee
who is only on his way to his general work and not proceeding to any spe-
cial work under direction of his employer, in order to come within the Act
must establish that the work he was to engage in was wholly interstate, or
that he would be so engaged as soon as he went on duty,32 but a railroad
employee going to a pumping station, to pump water for both interstate
and intrastate trains, is held to be engaged in interstate commerce.2? An
employee of a railroad company engaged in interstate commerce, who was
killed in a collision while riding to his home, by permission, on one of the
company’s trains, but who was not at the time, and, so far as appeared, had
not just previously been employed in interstate commerce, was not within
the Act, and there could be no recovery thereunder for his death.?+

The cases establish the proposition that an employee when under the direc-
tion of his employer is going to, or returning from, work of an interstate
character, while so going or returning he is regarded as engaged in interstate
commerce.35 Thus an extra brakeman, returning to his.headquarters on a
pass, is engaged in interstate commerce, when he had gone out to act as
brakeman on an interstate train, and was paid from the time he started un-
til he returned,3* and an engineer going to his engine for the purpose of

29. Same— Missouri, etc., R. Co. v.
Blalack, 105 Tex. 296, 147 S. W. 559.

30. Local express agent not em-
ployee of railroad when.—Bogart v.
New York, etc, R. Co. (App. Div.),
157 N. Y. S. 420.

31. Going to, or returning from,
work.—Bravis v. Chicago, etc., R. Co.,
133 C. C. A. 228, 217 Fed. 234.

32. Knowles v. New York, etc., R.
Co., 164 App. Div. 711, 150 N. Y. S. 99.

838. Horton v. Oregon-Washington
R., etc., Co., 72 Wash. 503, 130 Pac.
897.

34. Bennett v. Lehigh Valley R. Co.
(D. C.), 197 Fed. 578, decided on au-

thority of Pedersen v. Delaware, etc.,
R. Co. 117 C. C. A. 33, 197 Fed. 537.

35. Same—Under direction of em-
ployer.—K entucky.— Louisville, etc., R.
Co. v. Walker, 162 Ky. 209, 172 S. W.
517.

New York.—See Barlow v. Lehigh
Valley R. Co., 214 N. Y. 116, 107 N.
E. 814.

Texas—St. Louis, etc, R. Co. w.
Brothers (Tex. Civ. App.), 165 S. W.
488, writ of error granted in 170 S.
W. xx, no op.

36. St. Louis, etc., R. Co. 7. Broth-
ers (Tex. Civ. App.), 165 S. W. 488,
writ of error granted in 170 S. W. xx,
no op.
§ 51 FEDERAL EMPLOYERS LIABILITY ACT. 112
going out on the road to bring in an interstate train, is engaged in interstate
commerce.27 On the other hand a freight conductor returning to a terminal
after a trip into another state where he had gone to engage in intrastate
work, and only carrying a caboose is held not to be engaged in interstate
commerce.38 A locomotive fireman in the employment of a railway com-
pany, whose duties required him to respond at any time upon an order to
do so, is engaged in interstate commerce, when he was killed on the prem-
ises of the defendant company by an interstate train as he was proceeding
in obedience to an order, from his home to the depot of the town, to secure
transportation to another town and there relieve the engine crew of an in-
terstate train.3®

In this last case the court recognizes the fact that there is conflict over
the proposition that an employee of a railroad company is engaged in the
service of his employer, and is a fellow servant of other employees of the
same master, while going to and from work, but holds that there can be
no question that he is in the service of his master, and a fellow servant of
his co-employees, whenever he is doing that which under his contract of
employment he is bound to do, and emphasizes the fact that in this case
the deceased, when killed, was not only on his way to work for his employer,
but was proceeding under direct and peremptory command of the railroad
company, and was on the premises of the company and in the discharge of
his duty when he met his death at the hands of negligent co-employees op-
erating a train engaged in interstate commerce and owned by the same rail-
road company.?°

However, it has been held that railroad employees while being carried as
part of their daily service to and from their place of work are fellow serv-
ants; and, even if there is no agreement that they shall be so carried, it is
sufficient if such be the implied agreement or the regular custom of the
railroad company, assented to by the employees, and employees engaged in
interstate commerce, are still so engaged when returning to camp on a hand-
car of the employer,4! even though at the time of the injury they had

37. Huxoll v. Union Pac.
(Neb.), 155 N. W. 900.

38. McAuliffe v. New York Cent.,
etc., R. Co., 164 App. Div. 846, 150 N.
Y. S. 512.

A freight conductor was bringing his
engine and caboose from a point in
New York to one in New Jersey and
he was injured in a collision with an
interstate train, it was held that he
was not then engaged in interstate
commerce, as he had previously been
moving cars from points all within the
state of New York and there was no
evidence that he would on resuming
work engage in such commerce and
the engine and caboose were simply
being brought to the terminal. Mc-

R. Co.

Auliffe v. New York Cent., etc., R. Co.,

164 App. Div. 846, 150 N. Y. S. 512.
39. Lamphere v. Oregon R., etc.,

Co., 116 C. C. A. 156, 196 Fed. 336.

40. Lamphere v. Oregon R., etc.
Co., 116 C. C. A. 156, 196 Fed. 336.

41. Employees returning on hand
cars or trains.—Grow v. Oregon, etc.,
R. Co., 44 Utah 160, 138 Pac. 398, Ann.
Cas. 1915B, 481.

“The further point is made that the
deceased, at the time of the injury, was
not engaged in any work, but was on
way to his abode [upon a railroad tri-
cycle on the company’s track]; hence
the relation of*master and servant did
not then exist between him and the
defendant, and for that reason he was
113

EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. § 51

reached camp and were removing the hand car to a place of safety under

direction of a foreman.?2

And employees returning from repairing a

broken rail on an interstate road on a hand car furnished them, when re-
moving the car from the track to make way for an interstate train, are
employed in interstate commerce. The court holding that if they were not
so employed when returning after finishing the work, were so by reason of
clearing the track of the hand car for the interstate train.43

In determining whether an employee, who had been engaged in interstate

not then ‘employed in such commerce.’
We think that also is answered against
the respondent by the Pedersen Case.
‘But the observations of the court in
the case of Philadelphia, etc., R. Co.
v. Tucker, 35 App. D. C. 123, affirmed
by the supreme court, 220 U. S. 608, 55 L.
Ed. 607, 31 S. Ct. 725, are here perti-
nent: ‘When Tucker was killed he
was upon the premises of the defend-
ant in response to its call, to assume
the duties he had been engaged by the
defendant to assume, and for their mu-
tual interest and advantage. Can it be
that under such circumstances the re-
lation which the decedent sustained to
the defendant was that of a mere
stranger? Is it possible that the act
under consideration warrants a distinc-
tion so fine as to permit a master to
escape liabilitv for negligence resulting
in the injury of one hired to perform
service, because the injury occurs be-
fore the service is actually undertaken,
notwithstanding that, at the time of
the injury, the servant is properly and
necessarily upon the premises of the
master for the sole purpose of his em-
ployment? We think not. Such a
rule, in our view, would be as technical
and artificial as it would be unjust.
We think the better rule, the one
founded in reason and supported by au-
thority, is that the relation of master
and servant, in so far as the obligation
of the master to protect his servant
is concerned, commences when the
servant, in pursuance of his contract
with the master, is rightfully and nec-
essarily upon the premises of the mas-
ter. The servant in such a situation is
not a mere trespasser nor a mere li-
censee. He is there because of his
employment, and we see no reason
why the master does not then owe him
as much protection as he does the mo-
ment he enters upon the actual per-
formance of his task.” To the same
effect are the cases of Horton v. Or-
egon-Washington R., etc., Co. 72
Wash. 503, 130 Pac. 897; Stone-Web-
ster Engineering Corp. v. Collins, 118
Cc. C. A. 55, 199 Fed. 581; Helmke v.
Thilmany, 107 Wis. 216, 83 N. W. 360;

Fed Act—8

Ewald vw. Chicago, etc., R. Co., 70 Wis.
420, 36 N. W. 12, 591, 5 Am. St. Rep.
178; Packet Co. v. McCue (U. S.), 17
Wall. 508, 21 L. Ed. 705. We think
the relation of master and servant be-
tween the deceased and the defendant
with respect to the latter’s liability for
the charged negligence as clearly ex-
isted at the time of the injury as
though the deceased then had been ac-
tually engaged in his work along the
track.” Grow v. Oregon, etc., R. Co.,
44 Utah 160, 138 Pac. 398, Ann. Cas.
1915B, 481.

42. San Pedro, etc., R. Co. v. Da-
vide, 127 C. C. A. 454, 210 Fed. 870.

“The work which he had been do-
ing on the day on which he was in-
jured was undoubtedly work done in
interstate commerce. He had _ been
engaged in ballasting the main track
of a railroad which carried freight and
passengers between different states.
* * * And although at the time
when he was injured he was returning
to camp at the conclusion of his day’s
labor, he was doing so at the direction
of his employer. He got upon the
hand car on which he rode under the
order of the section foreman, to take
it back to a certain designated place
on the line of the road. He was not
only engaged in returning from his
place of work to the camp maintained
by the company, but he was engaged
in taking the hand car to a point
where it was to be removed from the
track so as to leave the road open to
the passage of trains. He had not been
discharged from his day’s work. He
was still acting under the orders of
the section foreman. * * No rea-
son is perceived why a section hand,
engaged in propelling a hand car fur-
nished him by the railroad company to
convey him to his camp, as the con-
cluding part of his daily service of bal-
lasting a track used in traffic between
states is not, while so doing, engaged
in interstate commerce.’ San Pedro,

etc, R. Co. v. Davide, 127 C. C. A.
454, 210 Fed. 870.
48. Texas, etc, R. Co. v. White

(Tex. Civ. App.), 177 S. W. 1185.
§ 51

FEDERAL EMPLOYERS’ LIABILITY ACT. 114

commerce was so engaged while walking on the track to reach his boarding
place in Louisville, etc., R. Co. v. Walker, 162 Ky. 209, 172 5S. W. 517, the
court said:

“Tt is further insisted that if Walker, when going to his boarding place,

could be regarded from any standpoint as an employee, he was not,
within the meaning of the act, an employee engaged in interstate com-
merce. We think, however, that if he should be considered at that
time as an employee at all, he was an employee engaged in interstate
commerce, because this was the only kind of employment in which he
was engaged. At the time of his death he was either an employee en-
gaged in interstate commerce or he was a mere licensee using the tracks
of the company in going from his place of work to the boarding car.
It is very clear that while actually engaged at work for the company
he was an employee engaged in interstate commerce, and we think it
equally clear that the moment his day’s work ended he was not thereby
converted into some other kind of an employee, but that he either re-
tained his character as an interstate employee, or became, when his
work ended, and while going to the boarding car under the circum-
stances stated, a licensee. After giving to this question careful con-
sideration our opinion is that in going from his place of work to his
boarding car he continued in the character of an employee of the com-
pany, engaged in interstate commerce. The boarding cars in which he
took his meals and remained at night were owned by the company.
They were carried about by the company from one state to another
state and from place to place for the convenience and accommodation
of its employees, and at the time in question were standing on the
tracks of the company. The employees were not only invited to, but
were in, a measure, obliged by the company to use these boarding cars,
and the only convenient and practicable way to go to and from the
cars and the place of work was on the track of the company where
Walker was when knocked off. Furthermore, it was not only the cus-
tom of the men to use this way, but on this particular occasion they
were directed by the foreman in charge of the work to so do after the
hand cars had been abandoned. We, therefore, have a case in which
the employee not only worked for the company in the daytime but ate
his meals and occupied at night a place on its premises set apart by the
company for his use and accommodation. And so we think that under
these circumstances an employee such as Walker was should be treated
as engaged in interstate commerce, not only when actually employed at
his work, but while using the premises of the company in going te and
from the place set apart for him to eat and sleep and his work on the
premises of the company. In other words, within the contemplation of
the act, the course of his employment covered, not only the time he
was actually engaged at work, but the time he was engaged in going to
and from his work.”

An extra conductor, directed to report for orders, was ordered to ride
to an intrastate point, where he would receive definite instructions concern-
ing the destination and duties of a work train awaiting him there, is not
engaged in interstate commerce when on his way to the train on which he

Was

to ride to the designated point, when it does not appear that his work
115 EMPLOYER AND EMPLOYEE ENGAGED IN INTERSTATE COMMERCE. § 51

on reaching his destination would be in interstate commerce.*#

Any brief incidental absence from the scene of work or instrumentality
used therein, which is not inconsistent with the employee’s duty to his em-
ployer, does not, necessarily, preclude his efficiently claiming to be still on
duty and engaged in interstate commerce.4® Thus an employee who was
engaged in superintending the unloading of a car, if this was engaging in
interstate commerce, he did not cease to be engaged therein by reason of
the fact that he, at the time of the injury, was directing other work that was
also under his supervision.*6

The act has been held to extend to an employee engaged in relaying rails
on the line of an interstate road, while asleep in a shanty car standing on a
side track;47 but has no application where the employee was employed by
the defendant railroad company to work on its roadbed, and was injured
on Sunday while obeying an order of his superior in boarding an interstate
train to go to a near-by point, also situated within the state, for mail of
the camp.#8

The mere fact that plaintiff, a baggageman employed on defendant’s train,
received the injury complained of, caused by a head-on collision, when he
had stepped into the express car from the baggage car, does not affect his

employment at the time, or the responsibility of the defendant.*9

44. Conductor proceeding to take
up duties on work train not shown to
be interstate.—Feaster v. Philadelphia,
etc, R. Co. (D. C.), 197 Fed. 580, de-
cided on authority of Pedersen v. Del-
aware, etc, R. Co. 117 C. C. A. 33,
197 Fed. 537.

45. Turning aside from work.—Gra-
ber v. Duluth, etc, R. Co., 159 Wis.
414, 150 N. W. 489.

46. Salmon v. Southern R. Co.
(Tenn.), 180 S. W. 165.

47. Employee asleep in car on side
track.—Sanders v. Charleston, etc., R.
Co., 97S. C. 50, 81. S. E. 283.

48. Employee going for mail—Mey-
ers v. Norfolk, etc., R. Co., 162 N. C.
343, 78 S. E. 280, 48 L. R. A, N.S,
987.

49. Baggageman going into express
car—Duvall v. Seaboard Air Line
Tailway, 152 N. C. 524, 67 S. E. 1008,
dismissed for want of jurisdiction in 32
S. Ct. 790.

“The uncontroverted facts are that
the plaintiff was baggagemaster and
flagman, and was so employed at the
time of the injury; he carried local
baggage in the baggage car and
through baggage in the express car; at
the time of the accident the train was
nearing Sanford, going south, at which
point this through train stopped and
where through baggage might be
taken on; the plaintiff stepped from

the baggage car into the express car,
and soon thereafter the collision oc-
curred in which he was seriously in-
jured. The defendant contends that
by going from the baggage car to the
express car the plaintiff ceased to be
an employee, and was not engaged in
the scope of his employment. But the
fact is that his duties called him to the
express car as well as to the baggage
car, and even if it had not, the fact
that the baggageman stepped into the
adjoining express car for a moment
would not have terminated his employ-
ment or put him out of the scope of
his duties. There is no evidence that
being in the express car in anywise en-
hanced his risk or contributed to his
injuries. In fact, the probabilities are
that had he remained in the baggage
car he would have been more seriously
injured or possibly killed by the trunks
falling upon him. The evidence is
that the baggage car was more seri-
ously damaged than the express car.
The plaintiff's going into the express
car was not an unlawful act, and un-
der the circumstances could not have
affected his employment or the respon-
sibility of the company. Besides, his
duty lay in the express car as well as
in the baggage car, for in the former
the through baggage, which was part
of his charge, was carried, and though
there was none at that time, he might
§ 51 FEDERAL EMPLOYERS’ LIABILITY ACT. 116

The federal act, if otherwise applicable, is held to apply to the circum-
stances of a case, where an employee, while being transported from one lo-
cation to another, in the course of the work, had left the defendant’s car,
provided for the accommodation of the work gang, for a necessary purpose,
and was injured by another of defendant’s trains, moving upon a different
track, which had failed in its duty to give the required signals or warnings
of its approach; 5° and it is held at the best a jury question as to whether
an employee ceased to be engaged in the service by leaving the premises to
visit a saloon for a few moments with the intention of returning for further
service, if necessary, before being relieved for the day.51 And a fireman,
engaged in interstate commerce, and who having oiled and prepared his en-
gine, was killed while crossing the tracks to his boarding house for a per-
sonal purpose, was held still to have been engaged in the same kind of com-
merce at the time of the injury.5? In North Carolina R. Co. v. Zachary,
232 U.S. 248, 58 L. Ed. 591, 34 S. Ct. 305, Ann. Cas. 1914C, 159, the

court said:

“Tt is said that because deceased had left his engine and was going to his
boarding house, he was engaged upon a personal errand, and not upon
the carrier’s business. Assuming (what is not clear) that the evidence
fairly tended to indicate the boarding house as his destination, it never-
theless also appears that deceased was shortly to depart upon his run,
having just prepared his engine for the purpose, and that he had not
gone beyond the limits of the railroad yard when he was struck. ‘There
is nothing to indicate that this brief visit to the boarding house was at
all out of the ordinary, or was inconsistent with his duty to his em-
ployer. It seems to us clear that the man was still ‘on duty,’ and em-
ployed in commerce, notwithstanding his temporary absence from the
locomotive engine.”

prepare to receive such at Sanford.”
Duvall v. Seaboard Air Line Railway,
152 N. C. 524, 67 S. E. 1008, dismissed
for want of jurisdiction in 32 S. Ct.
790.

50. Employee leaving place provided
for his accommodation.—Saunders wv.
Southern R. Co., 167 N. C. 375, 83 S.
E. 573.

51. Visiting saloon—Graber v. Du-
luth, etc., R. Co., 159 Wis. 414, 150 N.
W. 489.

52. Fireman crossing tracks to
boarding house.— North Carolina R.
Co. v. Zachary, 232 U. S. 248, 58 L.
Ed. 591, 34 S. Ct. 305, Ann. Cas. 1914C,
159, reversing 156 N. C. 496, 72 S. E.
858, ,
CHAPTER VIII.

NEGLIGENCE OF RAILROAD.

. Degree of Care Required, § 52.

WAAR wWwndH

. Liability for Neglect of Officers, Agents, and Employees, § 53.

. Liability for Defects in Cars, Engines, Appliances, etc., § 54.

. Proximate and Concurrent Cause of Injury, § 55.

. Violation of Statutes as Negligence, § 56.

. Gross Negligence—Willful Injuries, § 57.

. Liability under Traffic Agreement or between Lessor and Lessee, § 58.

§ 52. Degree of Care Required.—Under § 1 of the act the employer
is liable, other requisites being shown, for “injury or death resulting in
whole or in part from the negligence of any of the officers, agents, or em-
ployees 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.”

The act does not give a cause of action to the employee for injuries not
occasioned by negligence, and no recovery can be had under this act by sim-
ply showing the injury, and that at the time the injured servant was engaged
in interstate commerce.1 In Seaboard Air Line Railway v. Horton, 233 U.

1. Liable only for negligence.—
United States—Seaboard Air Line
Railway v. Horton, 233 U. S. 492, 58
L. Ed. 1062, 34 S. Ct. 635, L. R. A.
1915C, 1, Ann. Cas. 1915B, 475; South-
ern R. Co. v. Gray, 36 S. Ct. 558; Hogan
v. New York, etc., R. Co. (C. C. A.),
223 Fed. 890; The Passaic (D. C.), 190
Fed. 644, affirmed 122 C. C. A. 466,
204 Fed. 266; Central R. Co. v, Young,
118 C. C. A. 465, 200 Fed. 359, 45 L.
R. A., N. S., 1015.

Georgia.—Louisville, etc. R. Co. v.
Kemp, 140 Ga. 657, 79 S. E. 558, 559.

Idaho.—Neil v. Idaho, etc., Railroad,
22 Idaho 74, 125 Pac. 331.

Kentucky.—Helm v. Cincinnati, etc.,
R. Co., 156 Ky. 240, 160 S. W. 945;
Long v. Southern R. Co., 155 Ky. 286,
159 S. W. 779; Louisville, etc., R. Co.
v. Holloway, 163 Ky. 125, 173 S. W.
343; Kentucky, etc., R. Co. v. Minton
(Ky. App.), 180 S. W. 831; Davis v.
Chesapeake, etc., R. Co., 166 Ky, 490,
179 S. W. 422.

Maryland.—Baltimore, etc., R. Co. v.
Whitacre, 124 Md. 411, 92 Atl. 1060.

Michigan.—Miller v. Michigan Cent.
R. Co. (Mich.), 152 N. W. 235; Hol-
lingshead v. Detroit, etc., R. Co., 181
Mich. 547, 148 N. W, 171.

North Dakotea—Manson v. Great

117

Northern R. Co. (N. Dak.), 155 N.
W. 32, 34.

New Hampshire—Wilson v. Grand
Trunk Ry. Co. (N. H.), 97 Atl. 981.

Texas—Missouri, etc, R. Co. v.
Poole, 104 Tex. 36, 133 S. W. 239, re-
versing judgment in 58 Tex. Civ. App.
16, 123 S. W. 1176.

Virginia Chesapeake, etc., Railway
v, Shiflett (Va.), 86 S. E. 860.

Washington.—Hobbs v. Great North-
ern R. Co., 80 Wash. 678, 142 Pac. 20,
L. R. A. 1915D, 503; Bjornsen v.
Northern Pac. R. Co., 84 Wash. 220,

°146 Pac. 575; Reeve vw. Northern Pac.

R. Co., 82 Wash. 268, 144 Pac.: 63;
Papoutsikis v. Spokane, etc., R. Co.
(Wash,), 153 Pac. 1053.

West Virginia—Culp v. Virginian R.
Co. (W. Va.), 87 S. E. 187; Hull v.
Virginian R. Co. (W. Va.), 88 S. E.
1060.

Where plaintiff charged in his pe-
tition that he was a section foreman
and that his duty required him to in-
spect the tracks of defendant and that
in doing so with a handcar preceded
by a flagman to warn him of approach-
ing trains, that a freight train uns
scheduled and running at a high and
dangerous speed and not slowing
down when seeing him created an
§ 52

FEDERAL EMPLOYERS LIABILITY ACT.

118

S. 492, 58 L. Ed. 1062, 34 S. Ct. 635, 639, L. R. A. 1915C, 1, Ann. Cas.

1915B, 475, the court said:

“This clause has two branches; the one covering the negligence of any of
the officers, agents, or employees of the carrier, which has the effect of
abolishing in this class of cases the common-law rule that exempted the
employer from responsibility for the negligence of a fellow employee

emergency in the removal of his hand-
car from the track. These allegations
were not sustained by testimony that
unscheduled freight trains were not
unusual nor was the speed of this one
more than ordinary, the plaintiff’s duty
was to look out for such and that if
he had performed the same by send-
ing out a flagman and this did not
give him sufficient time to remove the
handcar from the track it was simply
an unavoidable accident and not negli-
gence on the part of the company
making them liable under the federal
act. Louisville, etc, R. Co. v. Kemp,
140 Ga. 657, 79 S. E. 558.

“Tt is not insisted that the injury
resulted from any defect or insuffi-
ciency in defendant’s cars, engines, ap-
pliances, machinery, track, roadbed,
works, boats, wharves, or other equip-
ment. Therefore plaintiff's whole case
depends on whether or not plaintiff's
injury resulted in whole or in part
from some act of negligence on the
part of those working with him. The
evidence in the case before us shows
that the tie was handled in the usual
manner. It fails to show that the in-
jury was due to any failure of duty on
the part of defendant’s employees, or
that the accident could have been pre-
vented by handling the tie in a differ-
ent manner. On the contrary, every
witness says that the tie turned merely
because it was wet and slippery. In-
deed, all the facts and circumstances
make it plain that plaintiff’s injury was
the result of a mere accident which
could not have been anticipated or
prevented by ordinary prudence on
the part of those working with him.
Therefore, if we assume for the pur-
poses of this case that the plaintiff was
engaged in interstate commerce work,
and that the Employers’ Liability Act
applies, no liability on the part of de-
fendant is shown, as the evidence fails
to disclose that the injury was due to
any negligence on the part of defend-
ant’s servants. We therefore con-
clude that the trial court properly
directed a verdict in favor of the de-
fendant.” Long v. Southern R. Co.,
155 Ky. 286, 159 S. W. 779, 781.

Where a railroad conductor, 40
years of age, being in the possession

' pressure

of all of his faculties, who has had
large experience in railroad business
as a brakeman, switchman, switchyard
foreman, yardmaster, and conductor,
whose train is made up, consisting of
about 20 freight cars and a caboose,
and who goes to the engine attached
to his train and delivers to his engi-
neer his clearance card, and steps
across the space between the tracks
upon the “scale track” and walks lei-
surely back toward the caboose on
his train, and the switch engine that
made up his train and left it standing
on the “passing track” proceeds down
in the yards to get four cars loaded
with coal and returns up the scale
track with said cars, with the bell
ringing so that it could be heard at
least a thousand feet, and the engine
laboring up a 1 per cent. grade and
running at from 8 to 12 miles an hour,
and the exhaust of steam and noise of
the engine could be heard for a quar-
ter of a mile, and the fireman on the
switch engine had seen the respond-
ent walking on the track when he was
about 500 feet away, and respondent
is not noticed thereafter by the fire-
man or engineer until he is struck by
the engine, held, that the railroad is
not guilty of negligence. Neil v.
Idaho, etc., Railroad, 22 Idaho 74, 125
Pac. 331. ;

Testimony is insufficient to sustain
a verdict for plaintiff when the evi-
dence shows he was killed by a colli-
sion when he was on the pilot of the
engine, contrary to the rules of the
company and that nothing within the
scope of his employment called for
his presence there, the evidence on the
last point being only speculative.
Hobbs v. Great Northern R. Co., 80
Wash. 678, 142 Pac. 20, L. R. A. 1915D,
503.

The employer is not liable for the
breaking of a main steam pipe by
which an employee was killed where
it is not shown that the break was
caused by any negligence on its part,
no testimony being presented to show
a physical defect in the construction
or any improper handling. Other evi-
dence showing the strength of the pipe
above the standard and the steam
lower than allowed. The
119

NEGLIGENCE OF RAILROAD. § 52
of the plaintiff; and the other relating to defects and insufficiencies in
the cars, engines, appliances, etc. But, plainly, with respect to the lat-
ter as well as the former ground of liability, it was the intention of con-
gress to base the action upon negligence only, and to exclude responsi-
bility of the carrier to its employees for defects and insufficiencies not
attributable to negligence. The common-law rule is that an employer
is not a guarantor of the safety of the place of work or of the machin-
ery and appliances of the work; the extent of its duty to its employee
is to see that ordinary care and prudence are exercised, to the end that
the place in which the work is to be performed and the tools and ap-
pliances of the work may be safe for the workmen. * * * To hold
that under the statute the railroad company is liable for the injury or
death of an employee 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 negligence.’ The plain effect of these words is to
condition the liability upon negligence; and had there been doubt be-
fore as to the common-law rule, certainly the act now limits the re-
sponsibility of the company as indicated.”

The act does not undertake to define negligence or in any way limit the
application of the common-law rule upon that subject, therefore what con-
stitutes negligence in the employees or instrumentalities is determined by

the common law,” as interpreted and applied in the federal courts.?

Thus

where a member of a section crew and one of the hands under him were

Passaic (D. C.), 190 Fed. 644, affirmed
in 122 C,

tion. Evidence examined, and held:

C. A. 466, 204 Fed. 266. That the railroad company is guilty

Where an employee was killed by
knocking open the trap doors at the
bottom of coal cars which had swollen
and were tight, while he was standing
on top of the coal and he fell through
with the coal into the bunkers below,
no negligence was shown when there
were no hidden or concealed dangers,
defective construction, or unsafe place
to work, and the decedent had been
warned of the particular dangers.
Bjornsen v. Northern Pac. R. Co., 84
Wash. 220, 146 Pac. 575.

In Reeve v. Northern Pac. R. Co.,
82 Wash. 268, 144 Pac. 63, the injury
was due to fellow servants while
wrestling, pushing the plaintiff out of
a car door.

Plaintiff was a section boss engaged
in interstate commerce. Upon the day
of his injury he took a hand car with
13 men, besides himself, and worked
upon an adjoining section. While re-
turning in the evening it began to rain,
and one of the men under him let go
of the handlebars to put on his coat.
In so doing he lost his balance, and
plaintiff, in order to hold the man
upon the hand car, himself released
his hold, fell from the car, and was
injured. There is no evidence that
plaintiff had requested more hand cars
or complained of the crowded condi-

of no negligence for which it is liable
under the federal act. Manson v.
Great Northern R. Co. (N. Dak.), 155
N. W. 32.

The railroad is not liable for the
injury to a call boy who was injured
by jumping from a moving train, on
which he had ridden part of the way
to make a call, he having been cau-
tioned against the practice of jump-
ing on or off trains when going to
town to make calls. Vanordstrand v.
Northern Pac. R. Co., 86 Wash. 665,
151 Pac. 89.

2. Common-law determines negli-
gence.—United States—Seaboard Air
Line Railway v. Horton, 233 U. S. 492,
58 L. Ed. 1062, 34 S. Ct. 635, L. R.
A. 1915C, 1, Ann. Cas. 1915B, 475.

Georgia—Bowers v. Southern R.
Co., 10 Ga. App. 367, 73 S. E. 677;
Louisville, etc., R. Co. v. Kemp, 140
Ga. 657, 79 S. E. 558.

Kentucky.—South Covington,  etc.,
R. Co. v. Finan, 153 Ky. 340, 155 S.
W. 742; Helm v. Cincinnati, etc. R.
Co., 156 Ky. 240, 160 S. W. 945.

North Carolina——Renn v. Seaboard,
etc., Railway (N. C.), 86 S. E. 964, af-
firmed 36 S. Ct. 567.

3. Southern R. Co. v. Gray (U. S.),
36 S. Ct. 558.
§ 52 120

FEDERAL EMPLOYERS LIABILITY ACT.

proceeding on a railroad tricycle to a place on the road to clear the track of
snow and ice. To do so they carried tools in a place on the tricycle set
apart for them. An employee occupying a convenient position in which he
could apply the brakes, was ordered to do so, and in the attempt his fingers
were caught in the cogs of the tricycle, one cut off and another badly mashed.
Negligence was held not to be shown, as the employee was not young or in-
experienced, the machinery of the car was simple and the brake easy to
apply, and the tools in the car had been placed there by the injured em-
ployee; and as there was no negligence in putting the tools in the car, no
negligence in ordering the brakes applied, no defect of any kind in the make
up of the car, and the injury occurred by reason of the accidental contact
of the employee’s arm with the tools in the car, a verdict should have been
directed for the defendant.*

Speaking accurately there is no common law of negligence of the federal
courts as distinguished from the common law of negligence of the state
courts. The law of negligence is the same in both, and apparent differences
of opinion arise because of the application of the law to different combina-
tions of facts, and frequently on account of confusing negligence which may
or may not be the cause of an injury and actionable negligence which unites
cause and effect. The federal courts and the courts of most states concur
in holding that a failure to exercise the diligence and care of a person of
ordinary prudence, or a failure to perform a duty due from one to another, is
negligence, and that if this breach of duty is the proximate cause of an in-
jury it is actionable.» Should there be any difference under the state doc-
trine, as to what constitutes negligence at common law, and the rule in the
federal courts, there is no doubt that the federal rule must control, the same
as it does in contributory negligence and assumption of risk.6 And certain
it is that in trials under the act to determine negligence, the original common-
law rule is to be applied, and not the rule as restricted or enlarged by any
local statutory provision.?

4. Cincinnati, etc, R. Co. v. Hill,
161 Ky. 237, 170 S. W. 599.

5. Federal courts determine common-
law rule—Saunders v. Southern R.
Co., 167 N. C. 375, 83 S. E. 573, 576,

6. Southern R. Co. v. Gray (U. S.),
36 S. Ct. 558.

With the above qualification what
is said in Cincinnati, etc, R. Co. wv.
Swann, 160 Ky. 458, 169 S. W. 886,
888, i. e. “We think that when an
action is brought under the federal act
in our state courts to recover damages
for injuries suffered on account of the
negligence of another employee, the
rules of law prevailing in this state
must be looked to in determining
whether the acts or omissions com-
plained of amount to negligence,” is
true. And when making this state-

ment the court limited its application
to cases of similar facts, and further
guarded it as being a case not involv-
ing defects in cars, engines, etc. and
in which contributory negligence was
not in question.

Res ipsa loquitur—By the decisions
of the United States Supreme Court
the fact of accident does not even
raise a presumption of negligence.
This will be found considered, post,
“Under Doctrine of Res Ipsa Loqui-
tur,” § 163.

7. Not to be restricted or enlarged
by local statute—Seaboard Air Line
Railway v. Horton, 233 U. S. 492, 58
L. Ed. 1062, 34 S. Ct. 635, L. R. A.
1915C, 1, Ann. Cas. 1915B, 475; Louis-
ville, etc., R. Co. v. Kemp, 140 Ga.
657, 79 S. E. 558; Maijala v. Great
121

NEGLIGENCE OF RAILROAD.

§ 52

The employer is not an insurer,8 and the care and diligence required in a
given case, the failure to exercise which is negligence, is that of an ordi-
narily prudent person under similar circumstances,® or only to exercise that

Northern Ry. Co. (Minn.), 158 N. W.
430.

In O’Connor v. Chicago, etc, R.
Co. (Wis.), 158 N. W. 343, it is held
that even if a state statute requiring
railroads to remove trees on the right
of way was superseded by this act,
“still at common law the defendant
would be bound to protect its em-
ployees and passengers from dangers
which ordinary care and _ prudence
could guard against, and there seems
to be no doubt but that the defendant
would be bound to remove the tree in
question independent of statute, or
guard against the danger incident to
its falling upon the track and injur-
ing passengers or employees.”

In this respect the holding in Lou-
isville, etc, R. Co. v. Rhoda (Fla.),
71 So. 369, that in actions under this
act it is not error to charge the jury
that negligence is presumed when an
injury results from the running of
cars or locomotives of a railroad com-
pany, is wrong; and was reversed in
238 U. S. 608, 35 S. Ct. 662, 59 L.
Ed. 1487. Though the effect of the
statute is declared to be a rule of
evidence it cannot be distinguished
from the ruling in Seaboard Air Line
v. Horton, supra, holding it error to
charge that on showing the defendant
had failed to furnish a safe place to
work and a safe appliance to do the
work, it would be liable, as prescribed
by a local statute. Nor is the statute
one of procedure only. See post,
“Procedure,” Chap. XVIII.

8. Care required of employer—In-
surer.—United ‘States—Seaboard Air
Line Railway v. Horton, 233 U. S. 492,
58 L. Ed. 1062, 34 S. Ct. 635, L. R. A.
1915C, 1, Ann. Cas. 1915B, 475; Reese
v. Philadelphia, etc. R. Co. (U. 8),
36 S. Ct. 134.

Arkansas.—Kansas City, etc., R. Co.
v. Livesay (Ark.), 177 S. W. 875.

Michigan.—Miller v. Michigan Cent.
R. Co. (Mich.), 152 N. W. 235.

Missouri—Hawkins v. St. Louis,
etc. R. Co. (Mo. App.), 174 S. W. 129.

Virginia —Atlantic, etc. R. Co. v.
Newton (Va.), 87 S. E. 618.

9. Same—Reasonable care.—United
States—Seaboard Air Line Railway v.
Horton, 233 U. S. 492, 58 L. Ed. 1062,
34 S. Ct. 635, L. R. A. 1915C, 1, Ann.
Cas. 1915B, 475; Hogan v. New York,
etc, R. Co. (C. C. A.), 223 Fed. 890;
Sandidge 7. Atchison, etc. R. Co., 113

C. C. A. 653, 193 Fed. 867; New York,
etc., R. Co. v. Vizvari, 126 C. C. A.
632, 210 Fed. 118, 120; Coal, etc. R.
Co. v. Deal (C. C. A.), 231 Fed. 604.

Arkansas.—St. Louis, etc, R. Co.
wv. Fithian, 106 Ark. 491, 155 §&.
W. 88; Kansas, etc., R. Co. v. Leslie,
112 Ark. 305, 167 S. W. 83, Ann. Cas.
1915B, 834, reversed on other grounds
in 35 S. Ct. 844.

Georgia.—Southern R. Co. v. Hill,
139 Ga. 549, 77 S. E. 803; Southern
R. Co. v. Puckett, 16 Ga. App. 551, 85
S._E. 809.

Kansas—Smith v. St. Louis, etc., R.
Co., 95 Kan. 451, 148 Pac. 759.

Kentucky.—Chesapeake, etc. R. Co.
v. Kelly, 160 Ky. 296, 169 S. W. 736;
Louisville, etc., Co. v. Holloway,
163 Ky. 125, 173 S. W. 343, 346; Lou-
isville, etc, ‘R. Co. v. Patrick (Ky.
App.), 180 S. W. 55.

Maryland.—Baltimore, etc., R. Co. v.
Whitacre, 124 Md. 411, 92 Atl. 1060.

North Carolina.—Saunders v. South-
ern R. Co., 167 N. C. 375, 83 S. E. 573.
See, also, Ridge v. Norfolk, etc. R.
Co., 167 N. C. 510, 83 S. E. 762.
Texas.—Chicago, etc, R. Co. uv. Co-
sio (Tex. Civ. App.), 182 S. W. 83.

Vermont—White v. Central Ver-
mont R. Co., 87 Vt. 330, 89 Atl. 618,
affirmed in 35 S. Ct. 865.

Virginia—Atlantic, ete, R. Co. vw.
Newton (Va.), 87 S. E. 618.

West Virginta—Hull v. Virginian R.
Co. (W. Va.), 88 S. E. 1060, 1063.

“The federal courts and the courts
of this state concur in holding that a
failure to exercise the diligence and
care of a person of ordinary prudence,
or a failure to perform a duty due from
one to another is negligence, and that
if this breach of duty is the proximate
cause of an injury, it is actionable.
* * * They also agree that the care
required is dependent on the circum-
stances then existent.” Saunders v.
Southern R. Co., 167 N. C. 375, 382, 83
S. E. 573.

“The railroad company only owes to
its employees the duty to use reason-
able and ordinary care and diligence
in the construction and maintenance
of its tracks and bridges for the use
and purposes for which they are con-
structed, and which must be reason-
ably sufficient for the purposes in-
tended.” St. Louis, etc, R. Co. wv.
Fithian, 106 Ark. 491, 155 S. W. 88, 91.

In general terms, the degree of care
§§ 52-53 FEDERAL EMPLOYERS’ LIABILITY ACT. 122
care which the exigency reasonably demands.'° As negligence consists in
the failure to discharge a duty owing to another, evidence which does not
show any duty owing to an employee examining seals on cars, to warn him
of their movement, a failure to do so is not negligence.11_ So too, the em-
ployer does not owe any duty to a servant to keep a place safe when the
servant by reason of the nature of his employment and the service required
of him, is charged with the duty of inspection and seeing to it that the place
of his work and the appliances with which he must perform it, are reason-
ably safe for its performance; }# and an employer does not owe any duty to
warn an experienced employee of defects in piling which is being removed
because defective.t3

§ 53. Liability for Neglect of Officers, Agents and Employees.—
It seems that it was the intent and purpose of the act to cover every negli-
gence for which a common carrier engaged in interstate commerce might
be liable to its employees in such commerce.1# Under the clause providing
that the railroad shall be liable for “the negligence of any of its officers,
agents or employees,” '§ negligence can be based upon its failure to make

required of an employer in protecting
his employees from injury is the adop-
tion of all reasonable means and pre-
cautions to provide for the safety of
his employees while they are engaged
in his employment, and this degree of
care is to be measured by the dangers
to be apprehended or avoided. The
employer, whether a natural person or
a corporate body, is under obligation
not to expose the employee in conduct-
ing the employer’s business to perils
or hazards against which he may be
guarded by proper diligence on the
part of the employer. The care re-
quired of the employer is that of rea-
sonable diligence; “and reasonable dili-
gence implies, as between the em-
ployer and employee, such watchful-
ness, caution, and foresight as, under
all the circumstances of the particular
service, a corporation controlled by
careful and prudent officers ought to
exercise.” The failure of the employer
to exercise such reasonable diligence,
caution, and foresight as a prudent
man would exercise under the circum-
stances is negligence. Sandidge v.
Atchison, etc., R. Co., 113 C. C. A. 653,
193 Fed. 867, 872.

The diligence of a foreman of a
switch crew in performing a necessa-
rily dangerous switching operation
(poling a car) must be commensurate
with the danger of the situation. Sweet
uv. Chicago, etc., R. Co., 157 Wis. 400,
147 N. W. 1054.

Risks assumed by an employee for

want of a safe place to work, does not
exempt an employer from his duty to
exercise reasonable care in respect
thereto. Sandidge v. Atchison, etc., R.
Co., 113 C. C. A. 653, 193 Fed. 867.

In some cases the courts have gone
to the length of saying that the rule
requiring the master to use ordinary
care in furnishing 1easonably safe ap-
pliances does not apply where the in-
jury was caused by a _ simple tool.
Conceded as true, a steel chisel used
for cutting steel rails, is not a “simple”
tool within the meaning of the rule.
It will not do to assert that chisels of
this dangerous character fall within
the “simple” tool rule, and say that an
employer putting such instruments into
the hands of a workman is under no
obligation to observe reasonable care
in seeing that they are suitable for the
purposes for which they are to be used.
New York, etc., R. Co. v. Vizvari, 126
C. C. A. 632, 210 Fed. 118, 121.

10. Reese v. Philadelphia, etc., R. Co.
(U. S.), 36 S. Ct. 134.

11. No duty—No negligence.—Helm
v. Cincinnati, etc., R. Co., 156 Ky. 240,
160 S. W. 945.

12. Davis v. Chesapeake, etc., R. Co.,
166 Ky. 490, 179 S. W. 422.

13. Marshall v. Chicago, etc., R. Co.
(Minn.), 155 N. W. 208.

14. Neglect of officers, etc——De At-
ley Chesapeake, etc, R. Co. (D. C.),
201 Fed. 591.

15. See, also,
ants,” Chap.

post, “Fellow Serv-
123

NEGLIGENCE OF RAILROAD,

§ 53

and promulgate rules,!® when by so doing they would have prevented an
injury ;17 its failure to observe rules,18 unless from the length of time

16. Failure to make and observe
trules—De Atley v. Chesapeake, etc.,
R. Co. (D. C.), 201 Fed. 591; Chadwick
v. Oregon-Washington R., etc., Co., 74
Ore. 19, 144 Pac. 1165, L. R. A. 1915C,
823.

17. Gee v. Lehigh Valley R. Co., 163
App. Div. 274, 148 N. Y. S. 882.

Negligence of the defendant in fail-
ing to make and publish rules for the
safety of persons crossing its tracks
while cars are being shunted and
kicked, is not established when there
is no negligence shown on the part of
any employees in failing to watch or
warn the deceased, and how a rule
would have prevented the accident.
Gee v. Lehigh Valley R. Co., 163 App.
Div. 274, 148 N. Y. S. 882.

The failure to adopt rules may be an
element of negligence, but when rules
are adopted the presumption is that
they are sufficient and it is for the
plaintiff to show that there was a neg-
lect of duty in not adopting rules
which experience had shown to be bet-
ter, but the mere suggestion after an
accident of a rule which would have
prevented it, is not evidence of negli-
gence. Swartwood v. Lehigh Valley
R. Co., 169 App. Div. 759, 155 N. Y. S.
778.

18. United States—Yazoo, etc., R. Co.
v. Wright, 125 C. C. A. 25, 207 Fed.
281, affirming 197 Fed. 94; Michigan
Cent. R. Co. v. Schaffer, 136 C. C. A.
413, 220 Fed. 809.

Arkansas.—St. Louis, etc., R. Co. v.
Sharp (Ark.), 171 S. W. 95.

Kentucky.—Louisville, etc., R. Co. v.
Heinig, 162 Ky. 14, 171 S. W. 853.

North Carolina—Saunders v. South-
ern R. Co., 167 N. C. 375, 382, 83 S.
E. 573.

Oregon.—Chadwick v. Oregon-Wash-
ington R., etc., Co., 74 Ore. 19, 144
Pac. 1165, L. R. A. 1915C, 823.

Under the act a railroad company
is liable where a hostler started an en-
gine without warning as required by
the rules of the company and injured
the engineer who was inspecting the
engine. Taylor v. Southern R. Co., 56
Ind. App. 625, 101 N. E. 506.

“The defendant was guilty of negli-
gence in leaving a cut of cars on a
siding within striking distance of an
engine moving on the track on which
the deceased’s engine was proceeding,
and for two reasons: First. The rules
of the defendant company require of
its servants that they shall place cars

on the sidings in the clear. This rule
is a safe and reasonable one, and it was
negligence to violate it. Second. In
the absence of such rule, it would be
negligence in the company to place
and leave a cut of cars so that it would
be within striking distance of an en-
gine moving over an adjacent track.”
Wright v. Yazoo, etc., R. Co. (D. C.),
197 Fed. 94, 96, affirmed in 235 U. S.
376, 35 S. Ct. 130.

Where suit is brought in the state
court, under the Federal Employers’
Liability Act, against a railroad com-
pany for the wrongful death of plain-
tiffs intestate, and it is shown that
while the intestate, an employee of the
defendant, in its interstate business,
was walking upon or across the de-
fendant’s railroad track, in a populous
town and where the conditions were
dangerous, owing to a double main
line and several spur or side tracks,
and the customary use of the right of
way by pedestrians, the defendant’s
freight train approached at a speed of
from 20 to 25 miles an hour, without
signals or other warnings, required by
the dangerous condition of the locality
and the company’s rules, and running
over the defendant, caused the death
complained of, it is held, that the de-
fendant is negligent under the com-
mon law as administered either in the
State or Federal court, and that the
defendant is liable under the Federal
statute. Saunders v. Southern R. Co.,
167 N. C. 375, 83 S. E. 573.

Although a railroad company is un-
der no duty to adopt rules requiring its
employees engaged in shifting engines
and cars upon its yards at night to
give warning to other employees by
ringing bells, blowing whistles, or by
signal lights at the rear of backing en-
gines, still, if it does adopt and pro-
mulgate a rule, unambiguous in its
terms, requiring a light to be carried
on the rear of engines “running back-
ward by night, without cars or at the
front of a train pulling cars,” and the
employees understand such rule as ap-
plying to the yards, as well as to the
main line, and it has become the cus-
tom among them to carry such light
at night, and an employee, passing over
the yards at night, is struck and in-
jured by a backing engine, on which a
co-employee had neglected to place a
light, the company can not escape lia-
bility by proving that the rule was not
intended to apply to its railroad yards,
FEDERAL EMPLOYERS LIABILITY ACT. 124

§ 53
which employees have violated them, they could be considered abrogated.19
If employees have knowledge of the customary violation of a rule they must
govern themselves accordingly. Thus though an engine was running on a
track in a direction contrary to the rules of the company, it is negligence to
place another engine on a cross track in such close proximity to the main
track as to cause a collision, when the employees placing the engine had
knowledge of the customary violation of the rule.2°

However, rules are not to be followed blindly, and negligence may con-
sist in their observance, where their non-observance would have avoided an
accident; 21 because rules do not exempt an employee from taking any
precautions to avoid an accident and resulting injury which, in view of all
the circumstances, are necessary to the exercise of reasonable care; 2? and
if rules are so framed that following them would obviously endanger the
safety of others, they are to that extent unreasonable and void;?8 and
whether they are sufficient to give the necessary protection is for the jury.*4

Negligence may consist also in the failure to warn an inexperienced em-
ployee of the dangers of the service,25 or any employee of an unknown
danger,? but not of warning an employee of an obvious danger.27 Thus

if the absence of such light was the
sole or a contributing cause of the in-
jury. In such case the failure to carry
a light is the negligence of a fellow
servant, and is actionable under the
federal act. Easter v. Virginian R. Co.
(W. Va.), 86 S. E. 37.

19. Missouri, etc. R. Co. v. Rentz
(Tex. Civ. App.), 162 S. W. 959, writ
of error denied in 163 S. W. xv, no op.

20. Louisville, etc., R. Co. v. Fleming
(Ala.), 69 So. 125.

21. When negligence to observe
tules.—White v. Central Vermont R.
Co., 87 Vt. 330, 89 Atl. 618, affirmed in
35 S. Ct. 865.

22. Pyles v. Atchison, etc., R. Co.
(Kan.), 155 Pac. 788.

23. Chicago, etc., R. Co. v. Wright,
239 U. S. 548, 36 S. Ct. 185.

24. Pyles vw. Atchison, etc., R. Co.
(Kan.), 155 Pac. 788.

25. Failure to warn employees of
danger.—Ridge v. Norfolk, etc., R. Co.,
167 N. C. 510, 83 S. E. 762; Maijala v.
Great Northern R. Co. (Minn.), 158
N. W. 430. See, also, Boston, etc.
R. Co. v. Benson, 124 C. C. A. 68, 205
Fed. 876.

Evidence tending to show that the
conductor on defendant’s freight train
ordered the plaintiff, an inexperienced
hand learning the business under him,
to go along the top of a moving train
in a wind sufficiently strong to take
the roof off of the car, which was de-
fective, and injured him, when he must
have observed or known of the danger,
affords direct evidence of the defend-

ant’s negligence, although the evidence
was conflicting as to the force of the
wind. Ridge v. Norfolk, etc., R. Co.,
167 N. C. 510, 83 S. E. 762.

26. United States—Norfolk, etc, R.
Co. v. Holbrook, 131 C. C. A. 621, 215
Fed. 687; Colasurdo v. Central Rail-
road (C. C.), 180 Fed. 832, affirmed in
113 C. C. A. 379, 192 Fed. 901.

Alabama.—Alabama, etc. R. Co. v.
Skotzy (Ala.), 71 So. 335.

Kentucky.—Louisville, etc., R. Co. v.
Johnson, 161 Ky. 824, 171 S. W. 847;
Louisville, etc., R. Co. v. Holloway, 163
Ky. 125, 173 S. W. 343.

Minnesota.x—Bombolis v. Minneap-
olis, etc., R. Co., 128 Minn. 112, 150 N.
W. 385; Riley v. Minneapolis, etc, R.
Co. (Minn.), 156 N. W. 272.

North Cavrolina—Saunders v. South-
ern R. Co., 167 N. C. 375, 83 S. E. 573.

Pennsylvania.—Glunt v. Pennsylvania
R. Co., 249 Pa. 522, 95 Atl. 109.

South Carolina—Koennecke v. Sea-
board, etc., Railway, 101 S. C. 86, 85
S. E. 374, affirmed in 239 U. S. 352,
36 S. Ct. 126.

“We can not assent to the view that,
under no circumstances, it is the duty
of the crew of a switching engine, mov-
ing in a switching yard, to give sig-
nals of its approach for the benefit of
other employees working in the yard,
even though they may know that it is
moving about the yard, and be under
the duty of looking out for it. But, if
the law were as so contended, the en-
gine in question had not theretofore been
moving about the yard. Its regular
125

NEGLIGENCE OF RAILROAD.

om

where water cranes were placed in close proximity to the track a warning that

“they will not clear a man hanging too far outside ‘of car,’

7

is not a proper

warning. It did not tell the brakemen not to hang out on the side of the car
in performing their signaling duties which they were in the habit of doing
with the knowledge of defendant’s officers, but merely cautioned them in a

vague way not to “hang too far outside the car;’

place of work was in another yard. It
had just arrived in the yard where it
ran over deceased, and its arrival may
not have been expected.” Koennecke
v. Seaboard, etc., Railway, 101 S. C. 86,
85 S. E. 374, 377, affirmed in 239 U. S.
352, 36 S. Ct. 126.

Where employees had been instructed
by their foreman to go between cars
for the purpose of urinating, and the
foreman knew such a position was oc-
cupied by a section hand, and he saw
or in the exercise of ordinary care
could have seen cars approaching
which would strike the ones he was
between and injure him, it was his duty
to exercise ordinary care to warn the
employee of his danger, and a failure
was negligence. Louisville, etc. .R.
Co. v. Johnson, 161 Ky. 824, 171 S. W.
847.

Moving cars on repair track without
warning repairmen, held a question for
the jury. Evans v. Detroit, etc.,
Co., 181 Mich. 413, 148 N. W. 490.

Whether defendant was under a
duty to warn an employee that a car
was too high to pass under bridges
when the employee was on top of it,
is for the jury. Portland Terminal Co.
v. Jones (C. C. A.), 227 Fed. 8.

The negligence of defendant predi-
cated on a failure to warn an employee
that ties under a track that had been
washed out were unsafe is not shown
by evidence that the foreman told the
employees to keep off the ties and or-
dered that they be planked. Spinden
v. Atchison, etc., R. Co., 95 Kan. 474,
148 Pac. 747.

“The purpose to be served by warn-
ing signals is to give notice of the ap-
proach of trains so that persons on the
track or in dangerous proximity thereto
may protect themselves from danger.
A failure to observe the precaution
when ordinary prudence and diligence
require it, even in the absence of a
statutory injunction, is evidence of
negligence; when there is such an in-
junction, the mere failure to obey it is
negligence per se. Hunter v. Mon-
tana, etc., Co., 22 Mont. 525, 57
Pac. 140. Employees come within the
protection of the rule; otherwise, by
entering into the employment of a rail-

?

in other words, to exer-

way company, an employee wholly re-
leases it from the duty it owes to every
member of the public whose business
or pleasure may bring him in danger-
ous proximity to the line of railway.
It may not apply so strictly in favor
of employees as other persons, because
in the performance of their duties they
must be in the company’s yards or on
or near the track in other places, and
for this reason must exercise care and
diligence for their own safety commen-
surate with the circumstances, to the
end that the movement of trains may
not be obstructed. Nevertheless, the
measure of duty which the company
owes to them must be determined by
the circumstances as they exist in each
particular case.” Nelson v. Northern
Pac. R. Co., 50 Mont. 516, 148 Pac. 388,
391.

It is the duty of the company to give
to those in charge of a train reasonable
warning of the presence of a work
train upon its main track by placing
torpedoes upon its track or by flagging,
or both, or in some other reasonable
manner while the train was a sufficient
distance from the work tram as would
enable those in charge of such moving
train to have stopped the same by the
exercise of ordinary care in time to
have avoided a collision. Louisville,
ete., R. Co. uv. Holloway, 163 Ky. 125,
173 S. W. 343, 345.

27. Hollingshead v. Detroit, etc., R.
Co., 181 Mich. 547, 148 N. W. 171, 172.

Negligence is not shown as a matter
of law where the deceased who was a
track walker was walking between two
tracks as a train on time and running
at its usual speed approached him, and
when it was ten feet in front of him
stepped upon the track upon which the
train was approaching. He was in
view of the fireman at all times but
not of the engineer on account of a
curve in the track and the negligence
was predicated upon the failure of the
fireman to notify the engineer to blow
the whistle, this was not negligence as
the decedent was in a place of safety
and there was no reason to anticipate
his action in stepping upon the track.
New York, etc., R. Co. v. Pontillo, 128
C. C. A. 573, 211 Fed. 331.
4

FEDERAL EMPLOYERS LIABILITY ACT. 126

§ 53

cise ordinary care.28 But the failure to warn an employee of the danger,
to which he was exposed, of being caught between cars when placing them
on a barge is not negligence making the railroad liable, when there was suf-
ficient room to place them on the barge but after they were in position the
tops were nearly touching.?®

As the employer owes an employee the duty to guard him against unex-
pected dangers, negligence may also consist in its failure to take precautions
against dangers to employees working on its tracks ;3° or a failure to
keep a lookout for employees engaged in duties on or near the tracks.31
Thus evidence of negligence is sufficient to take the question to the jury
where it might have been found that a switchman in a yard was killed by a
train that had just come in and was backing into the yard, that the train

28. Fish v. Chicago, etc., R. Co., 263
Mo. 106, 172 S. W. 340, 346.

29. Baugham v. New York, etc, R.
Co. (U. S.), 36 S. Ct. 592.

30. Guarding against dangers and
keeping lookout.—K entucky— McCalley
v. Chesapeake, etc., R. Co. (Ky. App.),
183 S. W. 234.

Missouri—Hardwick v. Wabash Fu
Co., 181 Mo. App. 156, 168 S. W. 328.

Nebraska.—Huxoll v. Union Pac. R.
Co. (Neb.), 155 N. W. 900.

Where the evidence clearly shows
that there was good ground for the jury
to infer that the precautions against
the approach of danger to employees
working on a railroad track were not
such as due care required, the question
of negligence was proper for the jury.
Norfolk, etc., R. Co. v. Holbrook, 131
C. C. A. 621, 215 Fed. 687.

Evidence that deceased was a switch
tender and as an engine passed he was
informed that it would return in 10 or
15 minutes, on the return the fireman
saw a lantern some 100 feet ahead, but
the engineer did not see any. Held
not to show actionable negligence, as
the switchman’s duty was to look out
and the situation of the lantern did not
call for any action on the part of the
fireman and engineer, decedent not be-
ing in any position of peril. Collins 7.
Pennsylvania R. Co., 163 App. Div. 452,
148 N. Y. S. 777.

81. United States—Southern R. Co.
v. Smith, 123 C. C. A. 488, 205 Fed.
360; North Carolina R. Co. v. Zachary,
232 U. S. 248, 58 L. Ed. 591, 34 S. Ct.
305, Ann. Cas. 1914C, 159.

Kentucky.—Louisville, etc, R. Co. v.
Johnson, 161 Ky. 824, 171 S. W. 847.

Minnesota—Bombolis v. Minneapolis,
etc., R. Co., 128 Minn. 112, 150 N. W.
385.

New Jersey—Grybowski v. Erie R.
Co. (N. J.), 95 Atl. 764.

Utah.—Grow v. Oregon, etc., R. Co.,

44 Utah 160, 138 Pac. 398, Ann. Cas,
1915B, 481.

Washington.—Anest v. Columbia, etc.,
R. Co. (Wash.), 154 Pac. 1100.

“We can not say that there was no
duty whatever to keep a lookout for
Smith [a switch tender in the yard
where killed]. Doubtless, it was pri-
marily Smith’s duty to keep out of the
way, but this did not absolve the en-
gine crew from all obligation. The
care required and the duty imposed
with reference to the yard employees
seen upon the tracks are much less in
degree than with reference to. stran-
gers; but defendant’s theory of no duty
would extend to a case where ‘an em-
ployee was obviously helpless on the
track and might have been seen for
some time from the coming engine. It
would permit the engine crew to run
through the yard with their eyes shut,
and it is too broad. Under such facts
as here exist, there must be a concur-
rent or secondary duty, independent of
statute or rule, to keep such lookout as
is reasonably necessary to avoid injury
to the employee who may neglect his
primary duty to protect himself.”
Southern R. Co. v. Smith, 123 C. C. A.
488, 205 Fed. 360, 361. '

“In yards like the one here in ques-
tion, occupied by a large number of
employees moving about in the per-
formance of their various labors, we
think it was the duty of the railroad
company, when it shunted the cut of
cars or a single car in on track No. 8,
to have a person on the forward end
of the front car for the purpose of giv-
ing warning of its approach and to
control its movement, and that it
should have been run at such a rate of
speed as to enable the person in charge
to give effective notice of its presence
to any person on the track.” Louis-
ville, etc., R. Co. v. Johnson, 161 Ky.
g24, 171 S. W. 847, 849.
127

NEGLIGENCE OF RAILROAD,

§ 53

movement was not a yard movement, that it was on the main track and
there was no outlook at the end of the train and no warning of its approach.
In other words that the injury was not received from the switching engine
known to be engaged upon its ordinary business.3?

However it may be presumed that an employee in full possession of his

faculties will guard against the ordinary movement of trains.33

So an em-

ployee working on or near a track cannot complain of a failure to warn him
of the approach of a train, where he had been given a time table, and it was
his business, not only to take care of himself, but to take care of the men

32. Seaboard, etc., Railway v. Koen-
necke, 239 U. S. 352, 36 S. Ct. 126.
Distinguishing Aerkfetz v. Humphreys,
145 U. S. 418, 36 L. Ed. 758, 12 S. Ct.
835.

33. Same—Duty of employee for own
safety.—Neil v. Idaho, etc., Railroad,
22 Idaho 74, 125 Pac. 331; Pankey v.
Atchison, etc., R. Co., 180 Mo. App.
185, 168 S. W. 274.

The engineer and fireman on a mov-
ing train, with bell ringing and the ex-
haust of steam and the train making
considerable noise, may presume, when
they observe a railroad conductor walk-
ing on the track, that he will heed the
ringing of the bell and the noise of
the train and step off the track in time
to save himself from injury, unless
something indicates the contrary. Neil
v. Idaho, etc., Railroad, 22 Idaho 74,
125 Pac. 331.

“The Supreme Court of the United
States, in Aerkfetz v. Humphreys, 145
U. S. 418, 36 L. Ed. 758, 12 S. Ct. 835,
held that a person in charge of a switch
engine in a railroad yard, used for the
purpose of moving cars, has a right to
act on the belief that the various em-
ployees in the yard, familiar with the
continuously recurring movements of
the cars, will take reasonable precau-
tion against their approach, particu-
larly where the cars are moving so
slowly that ordinary attention on their
part would enable them to avoid them.”
Neil v. Idaho, etc., Railroad, 22 Idaho
74, 125 Pac. 331, 337.

Where .a railroad company’s rules,
of which a section foreman has notice,
require him on approaching a sharp
curve through a deep cut on a hand car
to send a man ahead to look for a
train, the mere failure of trainmen to
give warning of their approach before
the presence of section men on the
track is discoverable is not negligence,
in the absence of a statute or a rule
requiring them to do so; since the
trainmen may assume, until the con-
trary appears, that section men will
obey reasonable, known rules promul-
gated for the safety of themselves and

others. Nor can employees on a track
whose duty it was to lookout for trains
complain of the failure of a train crew
to blow the whistle on approaching a
railroad bridge at an undergrade road-
way in absence of a statute or rule im-
posing such a duty. McCracken wv.
Delano (Neb.), 157 N. W. 917.

No negligence on the part of defend-
ant is shown where the plaintiff was
a section foreman engaged in repair-
ing switches and tracks in defendant’s
yards, was run over as he crossed a
track by an engine backing cars at a
slow rate of speed; the yards were ex-
tensive an average of 3,000 cars being
moved daily and three engines, some-
times four being required to do the
work; he being familiar with all the
conditions, such as cars moving back-
wards and forwards and that they were
likely to come at any time and without
warning, moreover it was shown to
have been his duty to protect not only
himself but the men under him from
dangers from the movements of en-
gines, cars, and trains, and that he had
been so instructed, and a rule requir-
ing an engine backing cars to keep
a man on the front of the leading car
was not applicable to such switching
but only trains moving upon the road.
Willever v. Delaware, etc., R. Co. (N.
J.), 94 Atl. 595,

A section foreman was injured in an
attempt to remove his hand car from
the track before a fast moving train,
the court held that in this he was
within the scope of his employment
and that it was his duty to do so to
avoid a collision, but that he was not
under any legal obligation to do so,
still by his attempt, he did not incur
the imputation of negligence, as mat-
ter of law, and in order to obtain a re-
covery under such circumstances, he
must show that due to negligence of
the engineer in running at such exces-
sive speed that he could not stop, or
by his failure to make any effort to
stop, his injury resulted. Nelson v.
Northern Pac. R. Co., 50 Mont. 516,
148 Pac. 388.
§ 53

FEDERAL EMPLOYERS LIABILITY ACT.

128

and property under his charge, and the company and its employees in other
branches of the service had, the right to assume that he would perform this
duty, and were relieved of the necessity of exercising towards him the de-
gree of care, other employees not charged with. like duties might have the
right to demand. When the railroad company employs a man to keep a
lookout for trains at a particular place, and charges him with the duty of
knowing the time of their arrival, it should not be subjected to liability for
failing to observe towards him the same degree of care employees not
charged with these duties have the right to expect.34

The railroad may be liable for the neglect of its train dispatchers; > an
engineer running into the train ahead,®¢ failure to use the air brake,37 to
have the air brakes properly set for coupling cars,?* moving a train contrary
to orders,3® failure to obey a switchman’s signal,*° or in runnmg train at ex-

34. Cincinnati, etc., R. Co. v. Swann,
160 Ky. 458, 169 S. W. 886.

35. Neglect of train dispatchers and
engineers.—The neglect of a train dis-
patcher who under the rules of the
company should have been informed of
the arrival and departure of all trains,
to notice that a rear train was ap-
proaching one ahead at such a rate
that a collision was inevitable, and be-
ing a vice principal, his knowledge in
this respect was the knowledge of the
defendant, the question of negligence
was for the jury whether by the exer-
cise of reasonable care the latter train
could not have been stopped and the
accident avoided. White v. Central
Vermont R. Co., 87 Vt. 330, 89 Atl.
618, affirmed in 35 S. Ct. 865.

A railroad is responsible for the act
of train dispatcher in ordering
switches lined up so as to turn a run-
away car off the main line, when the
main line was clear and he knew or
should have known, that there were
men on the car, and that the car was
so loaded and the switch such, that
by turning it out it would likely de-
rail. Sandidge v. Atchison, etc., R.
Co., 113 C. C. A. 653, 193 Fed. 867.

Where damages are sought in an
action against a railroad company for
its alleged negligence in giving an il-
legible order for the meeting of
trains at a certain station, resulting in
an injury to an employee on one of
the trains, upon which the evidence
is conflicting, the controversy pre-
sents issues of fact for the determina-
tion of the jury. Tilghman v. Sea-
board, etc.,, R. Co., 167 N. C. 163, 83
S. E. 315, 1090, reversed on other
grounds in 35 S. Ct. 653.

Failure to give a motorman a clear
track when it ordered him to come at
a place “as quick as you can is neg-

ligence.” McAdow v. Kansas, etc., R.
Co. (Mo. App.), 164 S. W. 188, af-
firmed in 36 §. Ct. 517.

86. New York, etc., R. Co. v. Nie-
bel, 1381 C. C. A. 248, 214 Fed. 952.

Where there was testimony from
which the jury might infer that there
were lights burning on the tail end
of a train which was run into by an-
other, the question of negligence in
running into ‘the train was for the
jury and a directed verdict properly
refused. The road being equipped
with block signals and the behind
train proceeding at a slow. speed.
Pennsylvania Co. v. Cole, 131 C. C. A.
244, 214 Fed. 948.

87. Chicago, etc, R. Co. wv. Bond
(Okla.), 148 Pac. 103, reversed on
other grounds in 36 S. Ct. 403.

88. Union Pac. R. Co. v. Fuller, 122
C. C. A. 359, 204 Fed. 45.

39. Lynch v. Central Vermont R.
Co. (Vt.), 95 Atl. 683.

The company is liable if an engineer
move a train, while an inspection of
a temporary repair was being made by
the road master, he having been sent
word by a brakeman not to move the
train and the fact that the message
was not delivered, would not relieve
the defendant as it was equally re-
sponsible for’ the negligence of the
brakeman. Lynch v. Central Vermont
R. Co. (Vt.), 95 Atl. 683.

40. Trowbridge v. Kansas, etc., R.
Co. (Mo. App.), 179 S. W. 777; St.
Louis, etc., R. Co. v. Brown (Okla.),
144 Pac. 1075, affirmed 36 S. Ct. 602.

An engineer is negligent in mov-
ing train after a brakeman, who had
given a “spot” signal, had gone be-
tween cars to arrange a coupler. St.
Louis, etc, R. Co. v. Brown (U. §.),
36 S. Ct. 602.
129 NEGLIGENCE OF RAILROAD. § 53
cessive speed when he knew that a brakeman who had gone ahead for in-
- formation, was required to board the train as it was passing.*1_ The railroad
is liable for a conductor’s improper operation ‘of an engine while relieving
the engineer ; 4? and for his negligence in giving a stop signal while a brake-
man was between the cars engaged in uncoupling them, without a signal
from the brakeman and without knowing he was ready or prepared for a
stop.42 The railroad is liable for a switchman’s failure to close a switch,‘
for a switchman who has control of cars to permit them to be kicked against
other cars about which he had been told an employee would be working,*5
or in moving cars when he knew or had good reason to believe an inspector
was at work on them and was likely to be in a place of danger, notwithstand-
ing the absence of customary signals.*®

The company may be liable for the negligence of an engineer of a bridge
crew in handling a pile,#7 or for the negligence of a section foreman, in
leaving a motor car on the track in a difficult place for its removal before
approaching trains, and ordering its removal by an insufficient number of
hands,#8 or the movement of its trains or cars in an extraordinary and un-

usual manner.?9

41. Chesapeake, etc, R. Co. v. De
Atley (U. S.), 36 S. Ct. 564.

42. Negligence of conductor.—Mar-
tin v. Atchison, etc., R. Co., 93 Kan.
681, 145 Pac. 849.

The petition alleged that the inju-
ries of the plaintiff were caused by a
defect in the tire of one of the drive-
wheels of the locomotive; that it was
loose, and had been in that condition
for a sufficient length of time to charge
the company with notice thereof.
The jury found that it became defec-
tive by the improper use of the brakes
by the conductor while acting as en-
gineer, and that this occurred but a
few moments before the injury to the
plaintiff. Held, that since the special
findings and the evidence show that
plaintiff's injuries were caused by the
negligence of the conductor, the com-
pany is liable irrespective of any no-
tice it may have had of the condition
of the tire. Martin v. Atchison, etc.,
R. Co., 93 Kan. 681, 145 Pac. 849.

43. Thompson v. Minneapolis, etc.,
R. Co. (Minn.), 158 N. W. 42.

44, Negligence of switchman. —
Walsh v. Lake Shore, etc, R. Co.
(Mich.), 151 N. W. 754.

The failure of employees on a wait-
ing train to turn the switch to side
track a passing train is not negligence,
when they had just reached the pass-
ing point and had no reason to antic-
ipate that the passing train would not
be under control so as to be stopped.
Louisville, etc., R. Co. 7. Heinig, 162
Ky. 14, 171 S. W. 853.

Fed Act—9

Thus a motion to direct a verdict for the defendant was

45. Henley v. Illinois Cent. R. Co.
(Minn.), 157 N. W. 1005.

4c, exarkana, etc, R. Co. v. Ca-
sey (Tex. Civ. App.j, 172 S. W. 729.

47, Engineer of bridge crew.—Drop-
ping of a pile on plaintiff, whether or

not negligence, held for the jury.
Smith v. Northern Pac. R. Co. 79
Wash. 448, 140 Pac. 685.

48. Section foreman. — Missouri,

etc. R. Co. v. Freeman (Tex. Civ.
App.), 168 S. W. 69, writ of error dis-
missed in 170 S. W. xix, no op.

49. Extraordinary and unusual move-
ment of trains or cars.—United States.
—Chesapeake, etc., R. Co. v. Proffitt
(U. S.), 36 S. Ct. 620.

Arkansas.—St. Louis, etc., R. Co. v.
Fithian, 106 Ark. 491, 155 S. W. 88.

Towa.—Clark v. Chicago, etc., R. Co.
(Iowa), 152 N. W. 635.

_Kansas—Saar v. Atchison, etc. R.
Co. (Kan.), 155 Pac. 954.

Kentucky.— Louisville, etc., R. Co. v.
Strange, 156 Ky. 439, 161 S. W. 239;
Cincinnati, etc, R. Co. v. Goldston,
156 Ky. 410, 161 S. W. 246; Louisville,
etc, R. Co. v. Stewart, 163 Ky. 823,
174 S. W. 744, affirmed in 36 S. Ct.
586. See, also, Chesapeake, etc., R.
Co. v. Walker, 159 Ky. 237, 167 S.
W. 128.

MissouriVaughan v. St. Louis,
etc, R. Co. (Mo. App.), 164 S. W.
144,

North Carolina—Kenney v. Sea-
board, etc, R. Co., 165 N. C. 99, 80
S. E. 1078.

Oklahoma.—St. Louis, etc., R. Co. v.
§ 53

FEDERAL EMPLOYERS LIABILITY ACT.

130

properly refused where the evidence was that a car checker, in course of
his duties when crossing defendant’s tracks, was struck and killed by a
string of cars the brakes uporf three of which were set and the evidence show-
ing that they were caused to move by being struck with great force by an-

other string of eight or ten cars.

Brown (Okla.), 144 Pac. 1075, affirmed
in 36 S. Ct. 602.

Pennsylvania—Hartman v. Western
Maryland R. Co., 246 Pa. 460, 92 Atl.
698.

Texas.—Ft. Worth, etc., R. Co. v.
Stalcup (Tex. Civ. App.), 167 S. W.
279, writ of error denied in 170 5. W.
Xvili, no op.

Washington. — Papoutsikis v. Spo-
kane, etc, R. Co. (Wash.), 153 Pac.
1053.

In railroad parlance, “kicking” a car
is equivalent to making a “flying
switch,” and where there is evidence
that the death of a brakeman was
caused in this manner while he was
engaged in his duties to the defendant
railroad company, the violent contact
of the car “kicked” with the one
whereon he was employed throwing
him down to his death, it is sufficient
upon the question of actionable neg-
ligence and should be submitted to the
jury. Kenney vz. Seaboard, etc, R.
Co. 165 N. C. 99, 80 S. E. 1078..

The evidence was sufficient to go
to the jury on the question whether
the engineer, a fellow servant, was
negligent in making an emergency
stop when there was no emergency,
and that, if he was negligent, the de-
fendant was chargeable with his neg-
ligence within the provisions of the
federal Employers’ Liability Act. La
Mere v. Railway Transfer Co., 125
Minn. 159, 145 N. W. 1068, Ann. Cas.
1915C, 667.

Where plaintiff was injured just as
he attempted to step from one car to
another by their parting and before
he could recover fell to the ground,
whether the defendant was negligent
in pushing cars without having been
coupled was for: the jury, plaintiff’s
testimony showing that it was usual
to couple them up, and in this he was
corroborated by another witness.
The jury having found this to be neg-
ligence the verdict will not be re-
versed. Denoyer v. Railway Trans-
fer Co., 121 Minn. 269, 141 N. W. 175.

“That the engineer was moving his
train at a high rate of speed, possibly
in excess of the schedule rate, was not
per se negligence. It is a matter of
common knowledge that, when a train
is late, the schedule rate is not ad-

Plaintiff had no warning of the move-

hered to.” Nelson v. Northern Pac.
R. Co., 50 Mont. 516, 148 Pac. 388,
392.

“If, however, the jury believed the
testimony as to the speed of the
train as stated by some of appellee’s
witnesses upon the track, as con-
structed, as they evidently did, we are
not able to say that the evidence of
negligence is insufficient to support
the verdict. The rate of speed at
which the train was going over the
tracks, as constructed, appears to
have been the question insisted upon
for a recovery below. It was not
complained that the speed was exces-
sive, but that that rate of speed over
the track as constructed was not rea-
sonably safe for, and was dangerous
to, the employees engaged in the op-
eration of the train, and constituted
negligence on the part of the com-
pany.” St. Louis, etc., R. Co. v. Fith-
ian, 106 Ark. 491, 155 S. W.,88, 91.

“One of the rules of the defendant
company, offered in evidence by the
plaintiff, fixed the maxim speed of a
freight train such as he was on at 20
miles an hour, and in the general no-
tice to all of the company’s employ-
ees, also offered in evidence, there is
the following: ‘Obedience to the
rules is essential to the safety of pas-
sengers and employees and the pro-
tection of property. The plaintiff
testified that the train was running at
the rate of 25 or 30 miles an hour
when it reached a curve, at which
point the engineer, without any warn-
ing, suddenly put on the brakes and
then instantly released them, so jar-
ring the train that he was jolted from
it. This testimony was sufficient to
send the case to the jury under the
federal statute, for, if believed, it
showed the negligent operation of the
train by the engineer, in violation of
one of the express rules of the com-
pany, to have been the direct cause of
the injuries sustained by the appellee.”
Hartman v. Western Maryland R. Co.,
246 Pa. 460, 92 Atl. 698, 700.

The plaintiffs testimony that a jolt
resulting from the stopping of the
train was “three or four times as se-
vere as on other occasions” is not suf-
ficient to justify a finding that the en-
gineer was guilty of negligence, espe-
131 NEGLIGENCE OF RAILROAD. §§ 53-54
ment and the switch engine could be seen a thousand feet away with the
smoke going straight up, indicating that it was standing still. The approach-
ing cars made no sound, as was testified to by a coemployee that was with
him at the time, but moved suddenly and with force sufficient to go four
car lengths before stopping.®° Nor is it error to refuse to direct a verdict
for the defendant on the ground that no negligence is shown, where the
evidence disclosed a collision between a road engine and a switch engine,
in a deep cut on a curve, and that the crew of. the switching engine were run-
ning at an excessive speed, with knowledge of the approaching road en-
gine.5t_ And it is proper to refuse to direct a verdict where the evidence
shows that a brakeman suddenly stopped a train, causing the engineer to
strike his head against the cab, by reason of which he died; as the defendant
is liable when the action of the brakeman would manifestly cause a sudden
shock, although the particular position of, or specific danger to, the engineer
was unknown, if generically it was the kind of thing that was likely to
happen under the circumstances.52, But where the negligence claimed is in
stopping a train too close to a switch causing a collision with a train due to
pass, no negligence is shown to permit a recovery for an engineer who failed
to obey an order and a bulletin notice as to the passing of trains, and in-
stead of having his train under control at such passing point, it ran into the
other train, especially where it is doubtful if the accident could have been
prevented even had it ‘been further away.53

A foreman is guilty of negligence in ordering a section of a repair shop
to be placed in position when there was a strip of timber nailed to it, which
prevented its going where intended, and directed the end of the timber to
be prized loose, where from the position of an employee, the foreman should
have known it would injure him.54 So too, a railroad company is liable
for the negligence of two members of a bridge crew, who with the permis-
sion of a foreman were carrying home on a push car some unsuitable tim-
ber, where they so loaded it and operated the car at such a speed as to
knock an employee off of a trestle.55

§ 54. Liability for Defects in Cars, Engines, Appliances, etc.—
Under the clause “by reason of any defect or insufficiency, due to its negli-
gence, in its cars, engines, appliances, machinery, track, roadbed, boats,

cially where he further testified that
the stopping threw him in a direction
the reverse of which the train was
moving, this being contrary to well-
known natural laws. Burtnett v. Erie
R. Co., 159 App. Div. 712, 144 N. Y.
S._ 969.

Whether speed excessive held a
question for the jury. St. Louis, etc.,
R. Co. v. Duke, 112 C. C. A. 564, 192
Fed. 306.

50. Great Northern R. Co. v. Mus-
tell (C. C. A.), 222 Fed. 879.

51. Chicago, etc. R. Co. v. Wright,
239 U. S. 548, 36 S. Ct. 185.

52. Louisville, etc, R. Co. uv. Stew-
art (U. S.), 36 S. Ct. 586.

53. Crews—Failure to clear switch.
—Louisville, etc., R. Co. v. Heinig, 162
Ky. 14, 171 S. W. 853.

54, Foreman of repair crew. —
Thompson v. Cincinnati, etc, R. Co.
(Ky.), 176 S. W. 1006.

55. Bridge crew knocking co-em-
ployee off trestle—Louisville, etc. R.
Co. vw Walker, 162 Ky. 209, 172 S.
W. 517.
§ 54

FEDERAL EMPLOYERS’ LIABILITY ACT.

132

wharves, or other equipment,” negligence has been based upon the improper
loading of cars,5® a defective brake step,®* a platform step being knocked
off by obstructions close to the track,®* the failure to keep securely fastened
the top to cars,5® the use of a car with defective door,®° a car without grab
irons,®! or one with a hand hold not properly secured.®?

56. Defects in cars, etc.—Michigan
Cent. R. Co. v. Schaffer, 136 C. C. A.
413, 220 Fed. 809.

57. Crandall v. Chicago, etc., R. Co.,
127 Minn. 498, 150 N. W. 165.

58. Ferebee v. Norfolk, etc., R. Co.,
163 N. C. 351, 79 S. E. 685, 52 L. R.
A. N. S., 1114, affirmed in 35 S. Ct.
781.

In this case there was evidence
tending to show that an employee of
a railroad company was injured while
acting in the course of his employ-
ment, at night, by falling from the
platform of a car at a station, because
of the fact that since the train had
left a former station the steps had
been broken from the platform; that
the only light furnished him was that
from a lantern he was carrying; that
the steps had been broken from the
car by the falling over of large boxes,
4 feet tall and 13 and 18 inches thick,
setting on end and unsecured in any
way, about 12 or 14 inches from pass-
ing cars, left for some weeks on a
trestle, and used for the purpose of
holding oil cans and other things for
the defendant’s engineers: Held, it
was a negligent act of the defendant
to leave boxes, as described, so near
the, main track of its railroad where
they were liable, at any time and from
ordinary causes, to fall over and col-
lide with the defendant’s train, and the
jury having by their verdict accepted
this version of the occurrence and de-
termined such act was the proximate
cause of the plaintiff's injury, without
negligence on his part, an actionable
wrong has been established; and this
position is not affected by the fact that
the action was properly brought under
the Federal Employers’ Liability Act,
which provides that contributory neg-
ligence shall only be considered in
diminution of damages: Held further,
that there was sufficient evidence to
sustain a negative finding of the jury
on the issue of contributory negli-
gence. Ferebee v. Norfolk, etc, R.
Co., 163 N. C. 351, 79 S. E. 685, 52 L. R.
A, N. S., 1114; S.C. 167 N. C. 290,
8° S. E. 360, affirmed in 35 S. Ct. 781.

59. Ridge v. Norfolk, etc. R. Co.,
167 N. C. 510, 83 S. E. 762.

In an action to recover damages
against a railroad company for an in-

Ann.

jury to the plaintiff received while in
the course of his employment by the
top of a box car being blown off by
the wind, striking him and carrying
him to the ground, there was evidence
tending to show that the planks of the
roof of the car, an old one, were seen
by the plaintiff, just prior to the in-
jury, “jumping up and down;” that
the car belonged to another railroad
company, but it could readily have
been inspected by the defendant, un-
der the circumstances, considering its
location and the defendant’s usual
methods of inspection. Held, it was
sufficient evidence that the planks on
top of the car were not properly
nailed or fastened, and of the defend-
ant’s actionable negligence in failing
to discover the defects of the car by
reasonable inspection and remedy it.
Ridge v. Norfolk, etc, R. Co., 167 N.
C. 510, 83 S. E. 762.

60. Smith v. St. Louis, etc. R. Co.,
95 Kan. 451, 148 Pac. 759.

61. “Appellant contends that, in the
absence of a statute requiring railroads
to place handholds or grabirons on the
ends of their cars, there is no duty
upon the railroad company as between
it and its employees to place such
handholds thereon, and therefore evi-
dence showing that there were no
such appliances does not tend to show
negligence. It was the duty of appel-
lant, regardless of any statute pre-
scribing how freight trains should be
equipped for the safety of employees,
to exercise ordinary care to furnish
such employees with a reasonably safe
place in which, and with reasonably
safe appliances with which, to work.
* * * The fact that the interstate
commerce commission postponed the
time for equipping the cars that were
then in service did not relieve the ap-
pellant of the duty of exercising or-
dinary care to furnish its employees
with safe appliances, and to provide
them a safe place in which to do their
work. The interstate commerce com-
mission was without power to exempt
the carrier from liability caused by its
negligence.” Kansas, etc., R. Co. wv.
Leslie, 112 Ark. 305, 167 S. W. 83, 89,
Cas. 1915B, 834, reversed on
other grounds in 35 S. Ct. 844.

62. Cincinnati, etc., R. Co. v. Nolan,
133

NEGLIGENCE OF RAILROAD.

§ 54

Negligence respecting engines may consist in the use of an engine that
was worn and dilapidated;°? of one with an insufficient glass indicator
tube,** or of one with an old style lubricator known to be dangerous; ® or
in using an engine burning oil, on which the crown sheet was secured by
button head instead of taper bolts ;** cr permitting the use of one that so
leaked steam as to obscure the tail lights of a train ahead,®7 or signals given
by it;®° and the use of a road engine for switching,®® especially when

161 Ky. 205, 170 S. W. 650; Smith v.
Great Northern R. Co. (Minn.), 158
N. W. 46.

68. Engines—McCoullough v. Chi-
cago, etc, R. Co., 160 Iowa 524, 142
N. W. 67, 47 L. R.A, N. S., 23.

“It is strenuously urged by appel-
lant that there was no evidence to
sustain the charge of negligence. The
evidence did show that the engine in
question was old and out of repairs;
that its wheels were badly worn; the
bushings and bearings were worn; and
that the engine rattled and pounded
while it worked. The immediate cause
of the breaking of the side bar. was
not ascertained. There was evidence
tending to show that some other part
must have broken first. The general
theory of negligence charged in the
petition was that the worn and dilapi-
dated condition of the engine was such
as to produce an unusual strain upon
the side bar, and this was the theory
upon which the case was submitted to
the jury. We think the evidence was
such that the question of negligence
was fairly one for the jury.” McCoul-
Jough v. Chicago, etc, R. Co, 160
Towa 524, 142 N. W. 67, 74, 47 L. R.
A. N. S., 23.

While the railroad would not be lia-
ble to an engineer for a defective en-
gine which he was to haul to the shop,
still it would be liable if the engineer
of the defective engine negligently ran
into the engine sent to haul it and in-
jured the engineer thereof. Pfeiffer v.
Oregon-Washington R., etc., Co. 74
Ore. 307, 144 Pac. 762.

64. Woodruff v. Yazoo, etc., R. Co.,
127 C. C. A. 411, 210 Fed. 849; S. C.,,
137 C. C. A. 567, 222 Fed. 29; Sea-
board Air Line Railway v. Horton, 233
U. S. 492, 58 L. Ed. 1062, 34 S. Ct.
635, L. R. A. 1915C, 1, Ann. Cas. 1915B,
475, reversing 157 N. C. 146, 72 S. E.
958,

Where the loss of an eye was sought
to be recovered, due to an explosion
of a glass indicator tube of a lubri-
cator, it was improper to direct a ver-
dict for the defendant, where the evi-
dence shows that the original tube had
been tested for tensile strength under

a pressure of 300 pounds and was en-
closed in a perforated tin shield, but
that having been broken another tube
was substituted, and a wire coil used
as a shield in place of the tin. It being
a question for the jury whether or not
a substituted tube was sufficient in ten-
sile strength when it exploded at 150
pounds pressure after a use of eight
days. Woodruff v. Yazoo, etc., R. Co.,
127 C. C. A. 411, 210 Fed. 849; S. C.,
137 C. C. A. 567, 222 Fed. 29.

65. Chicago, etc, R. Co. v. Bower
(U. S.), 36 S. Ct. 624, affirming 96
Neb. 419, 148 N. W. 145.

66. Donaldson v. Great Northern R.
Co. (Wash.), 154 Pac. 133.

67. Whether defendant was negli-
gent in allowing an engine to so leak
steam as to obscure the tail lights of
a train ahead which resulted in a col-
lision and death of a brakeman, was
for the jury. White 7. Central Ver-
mont R. Co., 87 Vt. 330, 89 Atl. 618,
affirmed in 35 S. Ct. 865.

68. Niles v. Central Vermont R. Co.,
87 Vt. 356, 89 Atl. 629.

69. Louisville, etc., R. Co. 7. Lank-
ford, 126 C. C. A. 247, 209 Fed. 321.

“The motion to direct verdict was
properly denied. There was testimony
tending to show negligence on defend-
ant’s part in using a road engine for
switching purposes. There was evi-
dence (including the construction of
the pilot, referred to later) from
which the jury might properly infer
that decedent was expected to ride on
the pilot during switching movements.
Notwithstanding defendant’s evidence
to the contrary, a question of fact for
the jury was presented. There was
evidence that a road engine was less
safe for this purpose than a switch en-
gine, because of the lack of front foot-
board, the pilot having no foot room
except a narrow ‘rim’ perhaps 334
inches wide, which was less secure
than a footboard; that defendant had
then and there shops at which the road
engine could have been properly
equipped for switching purposes by
taking off the pilot and putting on a
front footboard, which required not
more than one to two hours at the
§ 54 FEDERAL EMPLOYERS LIABILITY -ACT. 134
equipped with a 1500 candle power electric headlight.6%

With respect to machinery and appliances negligence may exist for a
failure to exercise due care in the original purchase and keeping and main-
taining tools and appliances, reasonably and adequately safe for use,?7° which
embraces simple as well as complex appliances.71 Thus the failure to
deaden electric switches upon which an employee was working,72 or to
install and keep in safe condition lightning arresters to protect an employee
using a telephone,’ is negligence. And too, the employer is liable for its
failure to furnish, to employees erecting telegraph poles, a “deadman” which
is an appliance used to support a pole as it is being raised, to prevent its
falling, and to hold it while the men get a new holt with their spike poles,74

But the master’is not bound to provide the very best implements or means
which can be procured, or those which are absolutely the most convenient
and safe. His duty is sufficiently discharged by providing implements or
means which are reasonably safe for those exercising ordinary care for
their own safety.7> And where an employee was injured by being struck
with an apron of a coal chute, the evidence tended to show that it was not
properly balanced by weights so that when it was emptied it would be
drawn up, but that in this special instance it came back and struck the em-

most; and that the road engine had
been in use for switching purposes at
least part of the preceding night, all
of the day before the accident, and
from 7 o’clock in the evening until
the accident, which occurred about
midnight.” Louisville, etc., R. Co. v.
Lankford, 126 C. C. A. 247, 209 Fed
321, 323.

69a. Roach v. Great Northern R. Co.
(Minn.), 158 N. W. 232.

70. Appliances and machinery. —
New York, etc., R. Co. v. Vizvari, 126
C. C. A. 632, 210 Fed. 118; Gekas v
Oregon-Washington R., etc. Co., 75
Ore. 243, 146 Pac. 970.

71. Louisville, etc. R. Co. v. Pat-
rick (Ky. App.), 180 S. W. 55; Gekas
v. Oregon-Washington R., etc., Co., 75
Ore. 243, 146 Pac. 970.

“Under the Federal Employers’ Lia-
bility Act the defendant is liable for
an injury resulting in whole or in part
from the negligence of its employee,
or by reason of any defect or insuffi-
ciency, due to its negligence, in its cars,
engines, appliances, or other equip-
ment. In other words such a carrier
is responsible for the negligence of its
employees. The defects and insuffi-
ciencies due to the negligence of the
common carrier referred to in the act
are not confined to complex appli-
ances. The terms of the act in this
respect are broad and appear to apply
to any part of the equipment, whether
simple or complex.” Gekas v. Oregon-

Washington R., etc., Co. 75 Ore. 243,
146 Pac. 970, 972.

72. Millette v. New York, etc. R.
Co., 169 App. Div. 126, 154 N. Y. S.
792.

73. Atlantic, etc., R. Co. v. Newton
(Va.), 87 S. E. 618.

74. Coal, etc. R. Co. v. Deal (C. C.
A.), 231 Fed. 604.

75. Same—Duty to provide best and
safest.—Chicago, etc., R. Co. v. Bower
(U. S.), 36 S. Ct. 624; Truesdell v.
Chesapeake, etc.,, R. Co. 159 Ky. 718,
169 S. W. 471.

The failure of the defendant to fur-
nish tongs for handling rails can not
be regarded as negligence, where there
was some evidence tending to show
that the accident might have been pre-
vented by the use of tongs, but no evi-
dence that the method employed was
dangerous, but all the evidence showed
that it was the usual and customary
way of handling rails, and reasonably
safe for those exercising ordinary care
for their own safety. Truesdell v.
Chesapeake, etc., R. Co., 159 Ky. 718,
169 S. W. 471, 472.

The question of whether or not the
defendant railroad was guilty of neg-
ligence in the use of an old style lu-
bricator upon a high pressure boiler
is one for the jury, when the evidence
shows that it was a dangerous instru-
ment to be so,used, and that a later
type was being installed upon engines
of all sizes. Chicago, etc, R. Co. v.
Bower (U. S.), 36 S. Ct. 624,
135

cn

NEGLIGENCE OF RAILROAD, $ St

ployee upon the head, it was sufficient to have the question of negligence
submitted to the jury;7® and where a water pipe used to water engines is
so hard to swing into position that it caused an employee to fall from an
engine as it suddenly gave way upon his attempt to push it into position,
would not justify a directed verdict for the defendant but its negligence was
a question for the jury.77

Though a railroad is required to maintain its parallel tracks a sufficient
distance apart to avoid injury in their ordinary use, placing the tracks on a
barge in such close proximity that the cars were nearly touching, is not a
defect or insufficiency.78 And it is proper to enter a nonsuit where the neg-
ligence charged was a failure to provide a safe place to work, in that the
tracks were constructed and maintained too near each other; and the evi-
dence shows that though less than the standard distance, they were located
and maintained on a narrow city street, under an ordinance of and in ac-
cordance with plans approved by the city officials, that the condition was
obvious and had existed for fifteen years, that the deceased was a capable,
experienced fireman, operating on a night switching crew_and was injured
about midnight while walking by the side of his slowly moving engine to
procure drinking water from a tap and while so doing was crushed by con-
tact with a freight car on the parallel track.79 Negligence may consist in the
improper construction and maintenance of a cinder platform along the
track; 8° or permitting large clinkers,81 or a handcar to remain on the
track ;8? or a cinder pile,8* or a tree on the side ;83* or in permitting a water
tank to overflow and freeze, forming ice near the track ;8+ or permitting a
defective,8> unlocked,8® or open switch ;87 or an uneven track ;88 or permitting

76. Same—Injury by coal chute or 88a. O’Connor v. Chicago, etc., R.

water crane.—Armbruster v. Chicago,
etc., R. Co., 166 Iowa 155, 147 N. W.
337.

77. Kenyon v. Illinois Cent. R. Co.
(Iowa), 155 N. W. 810.

78. Tracks and roadbed.—Baugham
v. New York, etc. R. Co. (U. S.), 36
S. Ct. 592.

79. Reese v. Philadelphia, etc. R.
Co., 239 U. S. 463, 36 S. Ct. 134, af-
firming 225 Fed. 518.

80. Missouri, etc., R. Co. v. Rogers
(Tex. Civ. App.), 128 S. W. 711.

81. Southern R. Co. wv. Puckett, 16
Ga. App. 551, 85 S. E. 809.

82. Canadian Pac. R. Co. v. Thomp-
son (C. C. A.), 232 Fed. 353.

88. Whether a cinder pile alongside
the track of a railroad, allowed to ac-
cumulate by the company, is a defect
due to the negligence of the company
resulting in an injury to a servant of
the company is a question of fact for
the jury under proper instructions
from the court. Southern R. Co. v.
Jacobs, 116 Va. 189, 81 S. E. 99, af-
firmed in 36 S. Ct. 588.

Co. (Wis.), 158 N. W. 343.

84. Renn v. Seaboard, etc., Railway
(N. C.), 86 S. E. 964, affirmed in 36 S.
Ct. 567.

85. Switches.—Southern R. Co. w.
Lefan (Ala.), 70 So. 249; Basham v.
Chicago, etc, R. Co. (Iowa), 154 N.
W. 1019.

86. Snyder wv. Great Northern, etc.,
R. Co. (Wash.), 152 Pac. 703.

87. Campbell v. Canadian, etc., R.
Co., 124 Minn. 245, 144 N. W. 772, 49
L. R. A., N. S., 951.

“The Northern Pacific now contends
the court erred in charging it with
negligence as a matter of law if it left
the switch open. This defendant, how-
ever, foreclosed itself from so urging
by its attitude on the trial, having con-
ceded several times that the switch
should have been thrown back after
use so as to line up the passing track.
The trial court was justified in assum-
ing absence of dispute on this point.
No error. resulted.” Campbell v.
Canadian, etc., R. Co., 124 Minn. 245,
144 N. W. 772, 49 L. R. A, N. S., 951.

88. Uneven track—A switchman sued
§ 54 FEDERAL EMPLOYERS LIABILITY ACT. 136
rails on a curve to become unduly worn; ®° Also, in failing to inspect a tree
to determine the danger of its being blown across the track by an unusual
wind storm, and in failing to patrol the track to discover obstructions dur-
ing a storm.89

As arailroad company cannot be expected to arrange that all of its trains
will pass at points where the track is clear and unobstructed, it is not negli-
gence to have the switch point of a passing track near a curve and obscured
to a certain extent by embankment and trees.9° But where reasonable care
requires that a platform in a tunnel, should be either lighted or a hole therein
guarded by a railing, the railroad is liable to an employee injured by falling
therein.91

It is the general rule that, a railroad company is required to place struc-
tures, used in connection with its road, at such distance from the track that
they will not endanger its employees in operating trains, and, where struc-
tures are placed by the company in such proximity to the track that they
endanger its servants while discharging their duty, the company is liable.%14

for injuries received by being jolted
from the pilot of a road engine used
for switching, where the evidence
showed that the handhold was not as
accessible as on a switch engine, nor
was the pilot rim as secure a place to
stand, and that it was snowy, it was
sufficient to go to the jury on the
question of whether one in so insecure
a position would be caused to fall by
the unevenness of the track though not
shown to be very great. Louisville,
etc.,, R. Co. v. Lankford, 126 C. C. A.
247, 209 Fed. 321.

Whether the track was in bad condi-
tion held a question for the jury. St.
Louis, etc, R. Co. v. Duke, 112 C. C.
A. 564, 192 Fed. 306.

89. Worn rails on curve.—Chesa-
peake, etc., R. Co. v. Kelley, 160 Ky.
296, 169 S. W. 736; reversed on other
grounds in 36 §. Ct. 630. :

Guard rails on bridges.—A railroad
company is not bound to provide walk-
ways or guard rails on its bridges and
trestles for the protection of its em-
ployees. Hull v. Virginian R. Co. (W.
Va.), 88 S. E. 1060.

89a. Inspection and patrol of track.
—O’Connor v. Chicago, etc, R. Co.
(Wis.), 158 N. W. 343.

90. Obscured switch. — Louisville,
etc., R. Co. v. Heinig, 162 Ky. 14, 171
S. W. 853.

91. Tunnels—Duty to light or guard.
—Copper River, etc., R. Co. v. Heney,
128 C. C. A. 131, 211 Fed. 459, 461.

Pla, Structures near tracks.—United
States—St. Louis, etc., R. Co, v. Con-
ley, 110 C. C. A. 97, 187 Fed. 949;
Portland Terminal Co. v. Jones (C.
C. A.), 227 Fed. 8.

Connecticut—Vickery v. New Lon-
don, etc., R. Co., 87 Conn. 634, 89 Atl.
277,

Minnesotaa—McDonald v. Railway
Transfer Co., 121 Minn. 273, 141 N.
W. 177.

Missouri—Fish v. Chicago, etc. R.
Co., 263 Mo. 106, 172 S. W. 340.

Wisconsin—Rowlands v. Chicago,
etc., R. Co., 149 Wis. 51, 185 N. W. 156.

Plaintiff a fireman on a railroad was
injured by being struck in passing a
mail crane. Against contentions of the
defendant the evidence was not suffi-
cient to show that he was guilty of
negligence, the court held that the
jury might as well have concluded that
it was the proximate cause of the in-
jury where the upper arm of the mail
crane had so worked out as to throw
it about an inch forward and down-
ward which would justify the claim
that it was below the standard height,
and from the injury inflicted it is rea-
sonably certain that if the arm had
been an inch further from plaintiff's
head he would have been uninjured or
if so but slightly. Rowlands v. Chi-
cago, etc., R. Co., 149 Wis. 51, 135 N.
W. 156.

“The negligence alleged against de-
fendant was in maintaining the switch
stand so that the handle thereof, when
the switch was set for track 3, endan-
gered the safety of employees in the
act of boarding or getting off that
side of cars passing over track 4, and
also failure to keep a light out on the
switch stand. It seems palpably clear
that the position of this switch handle,
when the switch for track 3 was set,
and especially at night, when no light
137

NEGLIGENCE OF RAILROAD.

§ 54

Thus it is negligence for a railroad company to conduct switching opera-
tions over a switch so obstructed by a piece of timber in a horizontal posi-
tion, that it cleared an ordinary box car by a height between three and four

and a half feet.9?
a roundhouse,®? or freight houses.%4

But this rule is not applicable in a case of doorways to

Where defendant maintained an open pit in an unlighted roundhouse
whether this was negligence, the proximate cause of the death of an engi-

neer, who went to get his engine, was for the jury.®®

And whether a jack,

on the floor of a roundhouse over which an employee stumbled and fell
under an engine, had remained there so long as in the exercise of ordinary
care the defendant would have discovered and removed it, is a question for

the jury.9¢

was maintained to show its dangerous
proximity to passing cars, amply sus-
tains a finding of negligence. We do
not understand that appellant’s coun-
sel seriously contend to the contrary.
The fact, if such it be, that defendant
fully informed plaintiff of the dan-
gers of the switchyard, or even of
this particular switch, does not en-
tirely wipe out the negligence in the
location of the stand and failure to
light it when darkness hid its dangers.
Furthermore, the instructions given
plaintiff concerning the dangers of this
switch and the knowledge he had
thereof do not conclusively prove that
defendant’s negligence became of no
consequence because thereof. Certain
it is that it can not be said as a mat-
ter of law that there is no evidence of
the negligence pleaded.’ McDonald v.
Railway Transfer Co., 121 Minn. 273,
141 N. W. 177, 178.

Notwithstanding a bridge may have
been constructed and maintained ac-
cording to public authority, a railroad
may be liable if passage beneath it
were not reasonably safe, under the
circumstances. Portland Terminal Co.
v. Jones (C. C. A.), 227 Fed. 8.

Whether defendant had so placed a
standpipe as to leave a reasonably safe
place for a brakeman, held for the jury.
Fish 7. Chicago, etc., R. Co., 263 Mo.
106, 172 S. W. 340.

92. Kanawha, etc., R. Co. v. Kerse,
239 U. S. 576, 36 S. Ct. 174.

98. Hogan v. New York, etc., R. Co.
(C. C. A.), 223 Fed. 890; Hollings-
head v. Detroit, etc., R. Co., 181 Mich.
547, 148 N. W. 171.

“It was not the duty of defendant to
see that this roundhouse was made
equal to the newest and safest of its
engine houses, but its duty was dis-
charged when it furnished such a
place as was reasonably safe and suit-
able for the purposes had in view.

And as it was not intended or sup-
posed that engineers or hostlers would
get upon their engines as they were
about to pass through this doorway,
no duty requiring them to do so, there
would seem to be no evidence that the
roundhouse was unsuitable for its pur-
pose.” Hogan v. New York, etc. R.
Co. (C. C. A.), 223 Fed. 890, 895.

94. Miller v. Michigan Cent. R. Co.
(Mich.), 152 N. W. 235; Pankey v.
Atchison, etc, R. Co., 180 Mo. App.
185, 168 S. W. 274.

“The negligence claimed in the in-
stant case deals exclusively with the
construction of this freighthouse and
these tracks, used in this railroad yard
by the defendant for about 30 years
exactly in the same manner as it was
used upon the day of decedent’s injury,
and for 15 years of that time used con-
tinuously in handling these refrigera-
tor cars, with other cars, all of which
appears without dispute. * * * The
construction of this freighthouse was
upon the plans of the engineer of the
road and in accordance with the gen-
eral plan of building such freighthouses
and tracks for unloading purposes.
Plaintiff introduced no evidence to
show that this was faulty construction,
unusual or different from the manner
in which freighthouses of other rail-
road companies were constructed and
operated. Where work is done and
carsare switched and handled in the
usual and customary way, with the
usual precautions, negligence will not
be presumed, but it must be proved
that such usual manner is in itself im-
proper.” Miller v. Michigan Cent. R.
Co. (Mich.), 152 N. W. 235, 239.

95. Open pit in roundhouse.—Padgett
v. Seaboard, etc., Railway, 99 S. C. 364,
83 S. E. 633, affirmed in 35 S. Ct. 481.

96. Tools on roundhouse floor.—
Hawkins v. St. Louis, etc., R. Co. (Mo.
App.), 174 S. W. 129.
§§ 54-55 FEDERAL EMPLOYERS LIABILITY ACT. 138

Under the first act, a path, used by employees to go and come from work
is a “way” and deemed defective or insufficient where it passes over rail-
road tracks and is in no manner protected or guarded.”

§ 55. Proximate and Concurrent Cause of Injury.—lIn order for
the railroad company to be liable, its negligence must have been the proxi-
mate cause of the injury.°8 Thus the negligence of the defendant in not
having the power brakes in operation on an engine would not make it liable
to an engineer who was run over by the engine when his presence was not
known until he was struck and the use of the brakes could not have oper-
ated to prevent his injury as he was not seen.®® And even the violation of
the safety appliance act or the hours of service act, does not ipso facto
render the railroad liable as this too must be the proximate cause of the
injury.t

But in considering contributory negligence it will be seen that the negli-
gence of the plaintiff is not to be considered the proximate cause of an in-
jury so as to defeat absolutely a recovery, unless it was also the sole cause.?

However, the proximate cause of an injury is not necessarily the act or
omission nearest in time and place? In Shugart v. Atlanta, etc., R. Co., 66
C. C. A. 379, 384, 133 Fed. 505, 510, Judge (afterwards Mr. Justice) Lur-

ton, in delivering the opinion of the court, said:

.97. Approaches to premises.—Phila-
delphia, etc., R. Co. v. Tucker, 35 App.
D.. ‘G. 123.

98. Proximate cause of injury.—Mar-
shall v. Chicago, etc., R. Co. (Minn.),
155 N. W. 208; Manson v. Great North-
ern R. Co. (N. Dak.), 155 N. W. 32.

Defendant’s failure to furnish a suf-
ficient crew is not the proximate cause
of an injury to a brakeman from mov-
ing a heavy box, when the evidence
shows that plaintiff was injured be-
cause he thought himself physically
able to handle the box and did not call
for assistance. St. Louis, etc., R. Co.
v. Snowden (Okla.), 149 Pac. 1083.

The overcrowding of a handcar is
not the proximate cause of an injury
resulting to section foreman from
coming in contact with the pump han-
dle and being knocked from the car
when catching another employee who
was about to fall from the car while
putting on a raincoat. Manson vw.
Great Northern R. Co. (N. Dak.), 155
N. W. 32.

Failure of an engineer to give a sig-
nal to warn section men of his ap-
proach is not the proximate cause of
an accident when the plaintiff testified
that he saw the train in ample time
to get out of the way. Nelson v.
Northern Pac. R. Co., 50 Mont. 516,
148 Pac. 388.

99. Huxoll v. Union Pac. R. Co.
(Neb.), 155 N. W. 900.

1. See proximate cause, as treated
under these acts.

2. Contributory negligence not to be
called proximate cause.—See post, “As
Proximate Cause of Injury,” § 66.

An engine which is leaking steam so
that the engineer can not see ahead
either the tail lights or a fusee on the
tracks, held the proximate cause of a
rear end collision. Niles v. Central
Vermont R. Co., 87 Vt. 356, 89 Atl. 629;
White v. Central Vermont R. Co., 87
Vt. 350, 89 Atl. 618, affirmed in 35 S.
Ct. 865.

3. Proximate cause, not necessarily
nearest in point of time—Union Pac.
R. Co. v. Fuller, 122 C. C. A. 359, 204
Fed. 45.

See Southern R. Co. v. Peters (Ala.),
69 So. 611, where it is held a defective
floor was not the proximate cause of
an injury to an employee, attempting
to lift a coal buggy when it had fallen
through it, but that the employee’s act
was the sole proximate cause of the
injury and the employer was not liable.
But it is hard even to imagine a
stronger case of proximate cause, than
this employee when as the conse-
quence of a hole in a floor, he is in-
jured in attempting to remove the coal
buggy that had fallen into it.
139 NEGLIGENCE OF RAILROAD. § 55

“That cause is proximate without which the accident would not have
happened, but which in the probable sequence of events, and without
the interposition of a new and efficient cause wholly sufficient in itself,
produces the wrong complained of.”

So the negligence of an engineer in not having the air properly set to keep
cars from moving when being coupled is the proximate cause of the death
of a brakeman by being crushed between them, though the movement of
the cars resulted from the opening of air cocks by the brakeman;+ and a
flagman’s negligence in failing to protect the rear of a train, while the con-
ductor is coupling cars, is the proximate cause of an injury resulting to the
conductor by a collision, and not the failure of the conductor to see that the
flagman performed this duty.5 The operation of a handcar so close to a
passenger train when leaving a town, and the neglect to consider the pos-
sibility of some one crossing the track, causing the train to slow down or
stop and a collision result, is the proximate cause of an injury to an em-
ployee in such collision and not a woman suddenly appearing on the track
causing the train to slacken speed or stop.¢

If it is claimed that the injury resulted from an intervening cause, it must
be such that independent of the primary cause the same result would have
occurred.? Thus where a passenger train running at somewhat more than
the schedule rate of speed is wrecked by reason of the fact that a tres-
passer turned the switch between the main line and a siding, whereby
the train was caused to leave the main line and run into the siding,
and was there derailed at a safety switch situated in the sidé track
at a point some 100 feet from the main line, and injury to the fireman was
caused by the wreck, neither the alleged excessive speed at which the train
was running nor the situation of the safety switch is to be regarded as the
proximate cause of the plaintiff’s injury, especially where it appears, from
the allegations of the petition and the proof on the trial, that the same re-
sult probably would have ensued if the train had been running at a normal
rate of speed. The proximate cause of the injury is the act of the tres-
passer.8

Proximate cause is still to be determined according to the general exist-
ing rules on that subject,® and this generally is a question for the jury.
There must be some evidence connecting the negligence of the defendant
with the injuries or death complained of.1° It is not enough that the evi-

4. Union Pac. R. Co. v. Fuller, 122 C.
C. A. 359, 204 Fed. 45.

5. Pennsylvania R. Co. v. Goughnour,
126 C. C. A. 39, 208 Fed. 961.

6. Houston, etc. R. Co. v. Samford
(Tex. Civ. App.), 181 S. W. 857.

7. Independent intervening cause.—
Bowers v. Southern R. Co., 10 Ga.
App. 367, 73 S. E. 677.

8. Bowers v. Southern R. Co., 10 Ga.
App. 367, 73 S. E. 677.

9. Bowers v. Southern R. Co., 10 Ga.
App. 367, 73 S. E. 677.

10. Evidence must show connection
of negligence with injury.—Osborne v.
Cincinnati, etc, R. Co., 158 Ky. 176,
164 S. W. 818, Ann. Cas. 1915D, 449;
Chesapeake, etc. R. Co. v. Walker, 159
Ky. 237, 167 S. W. 128; Crandall v. Chi-
cago, etc., R. Co., 127 Minn. 498, 150
N. W. 165.

Where the evidence does not show
FEDERAL EMPLOYERS LIABILITY ACTF. 140

§ 55
dence be consistent with the theory that the negligent act caused the injury;
it must be such as to show, by legitimate inferences of fact, that it did
cause it. The evidence need not be direct; it may be circumstantial.11 Thus
it is a question for the jury to determine the negligence of the defendant
whether or not it was the proximate cause of the injury where there were
no eyewitnesses to the accident but the evidence shows that the deceased, a
car inspector, had gone to thé yards to inspect a train and was killed by a
cut of cars backed upon him by an engine; when on this cut of cars there
was no light on the rear, no one was going ahead to warn employees in the’
yard, no one was in front of the leading car as required by the rules, and
no warning was given of its approach, and the train which he was to in-
spect was coming in at the same time.!?

Where two causes cooperate to produce an injury, one of which is attribu-
‘table to the defendant’s negligence, the latter becomes liable, if together they
are ‘the proximate cause of the injury, or if the defendant's negligence is
the proximate cause.1? This must be taken to be the meaning of the words
of the act declaring liability for injuries “resulting in whole or in part from
the negligence,” etc. The right to recover may be sustained even though
one of the causes be natural, as the buckling of a track ;14 or an act of God,
as a wind storm.15 So even if it could be said that the failure to remove

that an injury resulted from the use
of a wrench as a lever in a hydraulic
jack, charged as negligence by the
plaintiff, but may have been an acci-
dent or due to other causes, a new trial
will be ordered, but is not a case of
judgment non obstante  veredicto.
Winters v. Minneapolis, etc., R. Co.,
126 Minn. 260, 148 N. W. 106.

11. Kansas, etc., R. Co. v. Leslie, 112
Ark. 305, 167 S. W. 83, Ann. Cas. 1915B,
834; Crandall v. Chicago, etc., R. Co.,
127 Minn. 498, 150 N. W. 165.

12. Thornton v. Seaboard, etc., Rail-
way, 98 S. C. 348, 82 S. E. 433.

13. Concurrent causes.—Minnesota.—
Campbell v. Canadian, etc., R. Co., 124
Minn. 245, 144 N. W. 772, 49 L. R. A,
N. S., 951.

Nebraska.—Hadley v. Union Pac. R.
Co. (Neb.), 156 N. W. 765.

North Carolina—Ridge v. Norfolk,
etc., R. Co., 167 N. C. 510, 83 S. E. 762.

Wisconsin.—Molzoff v. Chicago, etc.,
R. Co. (Wis.), 156 N. W. 467.

Defendant, over whose track a
train was being operated by another
company, under a traffic arrangement,
with the latter’s own crew, could not
escape liability on the theory that the
accidert was due to the neglect of
one of plaintiff's fellow servants to
keep a proper lookout; the case thus
presented being merely one in which
the latter’s negligence concurred with
that of defendant in producing the re-

sult complained of. Campbell v. Cana-
dian, etc, R. Co., 124 Minn. 245, 144
N. W. 772, 49 L. R. A, N. S., 951.

14. Same—Concurrent cause when
natural or act of God.—Charleston,
etc., R. Co. v. Brown, 13 Ga. App. 744,
79 S. E. 932. .

15. Where it has been properly as-
certained that the plaintiff, in the
course of his employment, was injured
by falling from the platform of a car
at night, for the reason that the steps
of the car had recently been broken off
from the platform by the falling over
of large boxes negligently left near the
track over which the defendant’s train
had passed, the fact that a heavy wind-
storm was instrumental in turning
these boxes over will not advantage
the defense, it being primarily the neg-
ligence of the defendant, concurring
with an uncontrollable’ condition, aft-
erwards arising, which proximately
caused the injury complained of.
Ferebee v. Norfolk, etc.; R. Co., 163 N.
C. 351, 79 S. E. 685, 52 L. R. A, Nz
S., 1114; S.-C, 167 N. C. 290. 83 S.
E. 360, affirmed in 35 S. Ct. 781.

It is the duty of the master to fur-
nish the servant with a reasonably safe
place to do his work, under the rule
of the ordinarily prudent man with ref-
erence to his own safety, and when
the master fails in this respect and his
negligence concurs with conditions
over which he has no control, in pro-
141 NEGLIGENCE OF RAILROAD. 8§ 55-56
a dangerous tree was not, but that an extraordinary wind was, the proxi-
mate cause of a wreck, still the dangerous tree was a concurring cause, and
the defendant is liable.15* And under such circumstances, when there is no
negligence on the part of the servant the law will not undertake to apportion
the liability, but will hold the employer responsible to the servant in the same
degree and with the same consequences as if his negligence had been the
sole cause of the injury.16

§ 56. Violation of Statutes as Negligence.—The violation of a statu-
tory duty to an employee is considered as negligence per se.17 This is true
of the safety appliance act, and the hours of service act.

In San Antonio, etc., R. Co. v. Wagner, 36 S. Ct. 626, 630, the court said:

“The Employers’ Liability Act, as its 4th section very clearly shows, recog-
nizes that rights of action may arise out of the violation of the safety
appliance act. As was stated in Texas & P. R. Co. v. Rigsby, 241 U.S.
33, 39, 36 S. Ct. 482, 484, ‘A disregard of the command of the statute
{safety appliance act] is a wrongful act, and where it results in dam-
age to one of the class for whose especial benefit the statute was en-
acted, the right to recover the damages from the party in default is im-
plied.’ If this act is violated, the question of negligence in the general
sense of want of care is immaterial. 241 U.S. 43, and cases there cited.
But the two statutes are in pari materia, and where the Employers’
Liability Act refers to ‘any defect or insufficiency, due to its negligence,
in its cars, engines, appliances,’ etc., it clearly is the legislative intent to
treat a violation of the safety appliance act as ‘negligence,’—what it
sometimes called negligence per se.” 17

In the treatment of these two acts will be found what constitutes a viola-
tion, and the resulting liability in damages. But in this connection it is
well: to note the original safety appliance act and amendments
have been construed by the Supreme Court of the United States to
impose upon the carrier the absolute duty to provide and maintain proper
couplers and other appliances therein mentioned at all times and under all
circumstances. But under the Boiler Act, the carrier has discharged. his
statutory duty to the engineer by turning over to him a locomotive engine

ducing an injury to an employee, it
will be held as the proximate cause of
the consequent injury; and where an
injury to its train hand is caused by
the negligence of a railroad company
to provide a box car reasonably safe
for the purpose of his going along its
top in the performance of his duties,
and in consequence, during a wind-
storm, the roof of the car is blown off
and hurls the plaintiff to the ground
to his injury without other or inter-
vening cause, the doctrine of vis major
will not apply, and the. negligence of
the defendant will be held the proxi-
mate cause of the resulting injury.
Ridge v. Norfolk, etc. R. Co., 167 N.
C. 510, 83 S. E. 762.

15a. O’Connor v. Chicago, etc., R.
Co. (Wis.), 158 N. W. 343, 344.

16. Same—No apportionment for con-
current negligence.—Ridge v. Norfolk,
etc, R. Co., 167 N. C. 510, 83 S. E.
762.

17. Violation of statute as negligence.
—An employee cleaning switches,
comes within the protection of a city
ordinance, general in its terms, limit-
ing the speed of, and requiring the bell
to be rung on passing trains. Hard-
wick v. Wabash R. Co., 181 Mo. App.
156, 168 S. W. 328.

17a. See also, Spokane, etc., R. Co.
v.. Campbell, 36 S. Ct. 683.
FEDERAL EMPLOYERS’ LIABILITY ACT. 142

§§ 56-57
and boiler and appurtenances in proper condition and safe to operate, but it is
not answerable to the engineer as an insurer of his safety throughout the
run; and, in order for his personal representative to maintain an action for
his death caused by the explosion of the boiler, the burden rests upon the
plaintiff to show that the defendant has been guilty of the negligence in re-
gard thereto.1§

While an action under the Liability Act is only maintainable when both
the plaintiff and the defendant are engaged in interstate commerce,
this does not prevent an employee when he is injured though not en-
gaged in interstate commerce from relying upon any federal act such as the
safety appliance act, the hours of service act or the boiler inspection act, as
negligence. ‘Though the violation of these last acts is given special effect
when the Employers’ Liability Act is available, still in actions under a state
law the higher degree of duty imposed by the other federal acts is available
to the plaintiff if the railroad is one engaged in interstate commerce, re-
gardless of his employment.!9

§ 57. Gross Negligence—Willful Injuries.—It is now generally con-
ceded that there is no classification of negligence with respect to the degree
of care required in any given case, as being slight, ordinary, and gross, as
such a distinction can serve no practical purpose and is often very mislead-
ing.2° The requisite degree of care to be employed is that which is suited to
the particular transaction being investigated, and reasonably commensurate
with its circumstances and surroundings, that being supposed to be the care
which any man of ordinary prudence will use, as dictated to him by a natural
sense of his own protection and safety, if his personal rights were involved.?!

Though it has been held that willfulness is not an element under the act,2?
it is scarcely necessary to say that a duty rests on any person or corporation
not to willfully injure a human being, and where a servant, acting within
the general scope of the authority conferred on him by the master, inflicts
a willful injury, the master is liable.28

18, Violation of Boiler
Act.—Virginian R. Co. v.
(Va.), 87 S. E. 577, 579.

19. Availability of federal statutes in
actions not under Employers’ Liability
Act.—Texas, etc., R. Co. v. Rigsby (U.
S.), 36 S. Ct. 482; Trowbridge v. Kan-
sas, etc. R. Co. (Mo. App.), 179 S.
W. 777.

20. Gross _ negligence.—Steamboat
New World v. King (U. S.), 16 How.
469, 475, 14 L. Ed. 1019; Milwaukee,
etc., R. Co. v. Arms, 91 U. S. 489, 23
L. Ed. 374, 8 U. S. E. 878, 879, and
notes.

21. Ridge v. Norfolk, etc., R. Co., 167
N. C. 510, 526, 83 S. E. 762.

But in Jones v. Kansas, etc., R. Co.,
137 La. 178, 68 So. 401, a case under

Inspection
Andrews

the act, it is held to be gross negli-
gence on the part of the employees of
a railroad company to attempt to
make a flying or running switch witha
loaded box car, known to be out of
repair, at the crest of a grade on the
main line of track, when a passenger
train is nearly due. And if the box
car runs away down the grade, collides
with the incoming passenger train,
and kills the engineer, the railroad is
liable in damages to his widow and
children.

22. Willful injury—Dutton v. Atlan-
tic, etc., R. Co. (S. C.), 88 S. E. 263.

. 23. Pittsburgh, etc., R. Co. v. Farm-
ers’ Trust, etc., Co. (Ind.), 108 N. E.
108, 111.
143

NEGLIGENCE OF RAILROAD.

§ 58

§ 58. Liability under Traffic Agreement or between Lessor and
Lessee.—Where a railroad company uses the track of another company,

oes

having a traffic agreement, such track becomes “its” the same as if it were
operating that part of the road under lease, and is responsible for any de-

fects therein.?#

A lessor is responsible for the negligence of the lessee.25 Though revers-
ing the state court for its failure to hold that the act applied to an intrastate
railroad which had leased its operating rights to an interstate railroad, the
doctrine as laid down by the state court was approved in North Carolina R.
Co. v. Zachary, 232 U. S. 248, 58 L. Ed. 591, 34 S. Ct. 305, Ann. Cas. 1914C,”

159, where the court said:

“The responsibility of the lessor for all acts of negligence of the lessee
occurring in the conduct of business on the lessor’s road, as established
by the same court in Logan v. North Carolina R. Co., 116 N. C. 940, 21

S. E. 959, was recognized—indeed, reasserted.

‘But,’ it was said,

‘that is because a railroad corporation cannot escape its responsibility
by leasing its road. It is still liable for its lessee’s acts of commission
and omission, whether they occur in interstate or intrastate commerce,
although the lessor is not actually engaged in either.’ Zachary v. North

Carolina R. Co. [156 N. C. 496, 72 S. E. 858.]

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
everything that relates to the performance of the public duties assumed
by the lessor under its charter, such a lease—certainly so far as con-
cerns the rights of third parties, including employees as well as pa-
trons—constitutes the lessee the lessor’s substitute or agent, so that for
whatever the lessee does or fails to do, whether in interstate or in in-
trastate commerce, the lessor is responsible.”

So too, a construction company operating part of the line of a common
carrier as its agent is liable under the act.?6

24, Under traffic agreement.—Camp-
bell v. Canadian, etc., R. Co., 124 Minn.
245, 144 N. W. 772, 49 L. R.A, N.S,
951.

A Canadian railroad company is lia-
ble to its employees under the Fed-
eral Act when the injury occurring in
one of the states was due to the neg-
ligence of its co-defendant with whom it
had a traffic arrangement and who left
a switch open into which an engine
ran and injured the engineer. The word
“its” in the statute with reference to
cars, appliances and tracks being the
same as if it were operating that part
of the co-defendant’s railroad under a
lease. Campbell v. Canadian, etc., R.
Co., 124 Minn. 245, 144 N. W. 772, 49
L. R.A, N. S., 951.

25. Lessor and lessee.—United States.
—North Carolina R. Co. v. Zachary,
232 U. S. 248, 58 L. Ed. 591, 34 S. Ct.
305, Ann. Cas. 1914C, 159, reversing
on other grounds 156 N. C. 496, 72
S. E. 858. See, also, Southern R. Co.
v. Lloyd (U. S.), 36 S. Ct. 210, affirm-
ing 166 N. C. 24, 81 S. E. 1003.

Illinois —Wagner v. Chicago, etc., R.
Co., 265 Ill. 245, 106 N. E. 809, 812,
Ann. Cas. 1916A, 778, affirmed in 36 S.
Ct. 135.

North Carolina—Lloyd v. Southern
R. Co., 166 N. C. 24, 81 S. E. 1003, af-
firmed in 36 S. Ct. 210; Lloyd v. North
Carolina R. Co., 162 N. C. 485, 78 S. E.
489.

26. Agent of railroad.—Copper River,
etc., R. Co. v. Heney, 128 C. C. A. 131,
211 Fed. 459, 461.
CHAPTER IX.

FELLOW

1. Rule Abolished, § 59.

SERVANT.

2. Fellow Servants within Meaning of Act; § 60.

3. Limitation by Scope of Employment,

§ 61.

§ 59. Rule Abolished.1—The common law rule which makes the neg-
ligence of a fellow servant a bar to a recovery, as the servant is deemed to
have assumed such risk, is abolished by the act.2 In Second Employers’ Lia-

1. As to assumption of risk from
knowledge, see post, “Effect of Knowl-
edge by Employee,” § 73.

2. Fellow servant rule abolished.—
United States—Second Employers’ Lia-
bility Cases, 223-U. S. 1, 56 L. Ed. 327,
32 S. Ct. 169, 38 L. R. A, N. S., 44;
New York, etc., R. Co. v. Carr, 238 U.
S. 260, 59 L. Ed. 1298, 35 S. Ct. 780, af-
firming 136 N. Y. S. 501; Seaboard Air
Line Railway v. Horton, 233 U. S. 492,
58 L. Ed. 1062, 34 S. Ct. 635, L. R. A.
1915C, 1, Ann. Cas. 1915B, 475; Penn-
sylvania. R. Co. v. Goughnour, 126 C.
C. A. 39, 208 Fed. 961; Illinois Cent.
R. Co. v. Porter, 125 C. C. A. 55, 207
Fed. 311; Law wv. Illinois Cent. R. Co.,
126 C. C. A. 27, 208 Fed. 869, 870; Gib-
son v. Chesapeake, etc., R. Co., 131 C.
C. A. 332, 215 Fed. 24; Illinois Cent. R.
Co. v. Skaggs (U. S.), 36 S. Ct. 249;
Virginian R. Co. v. Linkous (C. C. A.),
230 Fed. 88, 91; Portland Terminal Co.
v. Jones (C. C. A.), 227 Fed. 8.

Georgia—Bowers wv. Southern R. Co.,
10 Ga. App. 367, 73 S. E. 677.

Illinois—Devine v. Chicago, etc. R.
Co., 266 Ill. 248, 107 N. E. 595, affirmed
in 36 S. Ct. 27.

Indiana.—Pittsburgh, etc., R. Co. v.
Farmers’ Trust, etc., Co. (Ind.), 108 N.
E. 108; Taylor v. Southern R. Co., 56
Ind. App. 625, 101 N. E. 506.

Iowa.—Byram v. Illinois Cent. R. Co.
(Iowa), 154 N. W. 1006.

Kansas——Martin v. Atchison, etc., R.
Co., 93 Kan. 681, 145 Pac. 849.

Kentucky.—Louisville, etc., R. Co. v.
Strange, 156 Ky. 439, 161 S. W. 239;
Long v. Southern R. Co., 155 Ky. 286,
159 S. W. 779; Cincinnati, etc, R. Co.
v. Wilson, 161 Ky. 640, 171 S. W. 430.

Minnesota—Cherpeski v. Great North-
ern R. Co., 128 Minn. 360, 150 N. W.
1091; Cousins v. Illinois Cent. R. Co.,
126 Minn. 172, 148 N. W. 58; Thomp-

son v, Minneapolis, R. Co.
(Minn.), 158 N. W. 42. ,
Mississippi—Elliott v. Illinois Cent.
R. Co. (Miss.), 71 So. 741.
Missouri—Hawkins v. St. Louis, etc.,
R. Co. (Mo. App.), 174 S. W. 129.
New Hampshire—Caverhill v. Bos-
ton, etc., Railroad, 77 N. H. 330, 91
Atl. 917.
New Jersey—Grybowski v. Erie R.
Co. (N. J.), 95 Atl 764.

etc.,

North Dakota—Manson v. Great
Northern R. Co. (N. Dak.), 155 N.
W. 32.

Oregon.—Gekas v. Oregon-Washing-
ton R., etc., Co., 75 Ore. 243, 146 Pac.
970; Pfeiffer v. Oregon-Washington R.,
etc. Co., 74 Ore. 307, 144 Pac. 762.

Pennsylvania.—Hartman v. Western
Maryland R. Co., 246 Pa: 460, 92 Atl.
698.

Texas.—Carter v. Kansas, etc, R.
Co. (Tex. Civ. App.), 155 S. W. 638;
Missouri, etc., R. Co. v. Poole, 58 Tex.
Civ. App. 16, 123 S. W. 1176, reversed
on other grounds in 104 Tex. 36, 133
S. W. 239; Houston, etc, R. Co. v.
Samford (Tex. Civ. App.), 181 S. W.
857.

Utah.—Grow v. Oregon, etc., R. Co.,
44 Utah 160, 138 Pac. 398, Ann. Cas.
1915B, 481.

Washington.—Reeve v. Northern Pac.
R. Co., 82 Wash. 268, 144 Pac. 63;
Anest v. Columbia, etc., R. Co. (Wash.),
154 Pac. 1100.°

West Virginia—Easter v. Virginian
R. Co. (W. Va.), 86 S. E. 37.

Wisconsin—Graber v. Duluth, etc.,
R. Co., 159 Wis. 414, 150 N. W. 489;
Sweet v. Chicago, etc., R. Co., 157 Wis.
400, 147 N. W. 1054.

“The decedent did not assume the
risk of negligent action of a fellow
servant. To hold the contrary would
be to annul § 1 of the act of congress
in question. Northern Pac. R. Co. v.

144
145 FELLOW SERVANT. § 59
bility Cases, 223 U.S. 1, 56 L. Ed. 327, 32 S. Ct. 169, 38 L. R. A., N. S., 4,
the court said:

“The rule that the negligence of one employee resulting in injury to an-
other was not to be attributed to their common employer is displaced by
a rule imposing upon the employer responsibility for such an injury, as
- done at common law, when the injured person was not an em-
ployee. :

This, of course, was one of the main objects, if not the principal object, of
the act, it being twice provided that the cause of action given shall arise and
the carrier be liable in damages “for such injury or death resulting in whole
or in part from the negligence of any of the officers, agents or employees of
such carrier,’ and its effect is to make the negligence of a fellow servant
the negligence of the defendant.#

Although it may be true that the doctrine of fellow servant and the doc-
trine of assumption of risk originally grew out of the same principle—that
of an implied contract on the part of the employee to assume the risks in-
cident to the negligence of his fellow servant or to assume the risks incident
to his employment and known to him—nevertheless at this time each of
these doctrines are well established in the jurisprudence of this country, and
each is as distinct from the other now as if their origin were entirely differ-
ent In Grybowski v. Erie R. Co. (N. J.), 95 Atl. 764, 765, the court said:
(N. J.), 95 Atl. 764, 765, the court said:

“The doctrine of assumption of risk has no application to such risks as

arise solely and directly out of the negligent acts of fellow servants.
And if it did so apply, as a general rule, it would have no pertinence
in the case of accidents the right of recovery for injuries arising out
of which is regulated by the federal statute; for to so hold would be to

Maerkl, 117 -C. C. A. 237, 198 Fed. 1.”
Sweet v. Chicago, etc., R. Co., 157 Wis.
400, 147 N. W. 1054, 1056.

“The federal act abolishes the de-
fense of fellow service; and whatever
risks the deceased assumed as to the
defendants’ method of doing business,
he did not assume the risk of injury
from the negligence of another em-
ployee. For an injury so caused, the
statute expressly makes the employer
liable.” Caverhill v. Boston, etc., Rail-
road, 77 N. H. 330, 91 Atl. 917, 918.

8. See the Act of April 22, 1908, §§ 1,
2. See, also, Northern Pac. R. Co. vw.
Maerkl, 117 C. C. A. 237, 198 Fed. 1,
6; Central R. Co. v. Colasurdo, 113 C.
C. A. 379, 192 Fed. 901, 902, affirming
180 Fed. 832. See ante, “Liability for
Neglect of Officers, Agents and Em-
ployees,” § 53.

4. Pennsylvania R. Co. v.. Gough-
nour, 126 C. C. A. 39, 208 Fed. 961;
Skaggs v. Illinois Cent. R. Co., 124

Fed Act—10

Minn. 503, 145 N. W. 381, 51 L. R. A,
N. S., 40, affirmed in 36 5, Ct. 249.

5. Distinguished from assumption of
risk, though origin the same.—Elliott
v. Illinois Cent. R. Co. (Miss.), 71 So.
741.

“In the case of Seaboard Air Line
Railway v. Horton, 233 U. S. 492, 501,
58 L. Ed. 1062, 34 S. Ct. 635, L. R. A.
1915C, 1, Ann. Cas. 1915B, 475, relied
on by appellee, this distinction is rec-
ognized in the following paragraph
quoted therefrom: ‘This clause has two
branches; the one covering the negli-
gence of any of the officers, agents, or
employees of ‘the carrier, which has
the effect of abolishing in this class of
cases the common-law rule that ex-
empted the employer from _ responsi-
bility for the negligence of a fellow
employee of the plaintiff, and the other
relating to defects and insufficiencies
in the cars, engines, appliances,’ etc.”
Elliott v. Illinois Cent. R. Co. (Miss.),
71 So. 741.
§§ 59-60 FEDERAL EMPLOYERS’ LIABILITY ACT. 146

nullify the declaration of Congress that every common carrier by rail-
road engaged in interstate commerce shall be liable in damages to the
personal representative of any employee who shall lose his life while
employed in such commerce, when his death results ‘from the negligence
of any of the officers, agents or employees of such carriers.’ ”

Thus an employee’s contract of employment could not involve him in any
general assumption of risk from the negligence of coemployees, for other-
wise the statute counted upon, and declaring, in effect, that the employee
may recover upon showing that one of the co-operating causes of his in-
jury was a negligent act or omission of an officer, agent, or other employee
of the carrier, would be inoperative.5*

And liability is imposed upon the carrier for the death or injury of its serv-
ants, notwithstanding it may have resulted wholly from the negligence of a
fellow servant, or from the combined negligence of a fellow servant and the
deceased or injured party.®

However, while the Act was manifestly intended to modify the law as it
formerly existed so as to materially benefit those who might be injured in
the future, by abolishing the harsh fellow servant rule, yet it cannot be rea-
sonably insisted that it was the purpose of the act to afford relief where one’s
injury is due solely to his own reckless and indifferent conduct. Thus in an
action for the death of an engineer a railroad company will not be held liable
for the negligence of a conductor, fireman, and brakeman who were all riding
on an engine of an extra freight train, for their failure to require the engineer
to obey an order designating the meeting and passing point of their train with
another. The evidence not even making a question for the jury as the fail-
ure to obey the order resulted in collision causing the death of all four of
the crew, and there being nothing to show what was said or done, prior to or
at the time of the accident. And even though it may have been the duty of
these employees to use all means to stop the train, this was the primary duty
of the engineer, and it was not to be supposed that they acquiesced in a course
of conduct by the engineer which they must have known would necessarily
result in disaster.”

§ 60. Fellow Servants within Meaning of Act.—It may be stated in
this connection that in determining who are fellow servants within the mean-
ing of the act, the federal courts follow the rule of the federal supreme court,
and not the doctrines of the state courts ;8 and that a railroad section foreman

4

5a. Risk not assumed under contract. 7. Employee’s own negligence not
—Louisville, etc, R. Co. v. Fleming to be placed on fellow servants.—Vir-
(Ala.), 69 So. 125, 129, citing Northern ginian R. Co. v. Linkous (C. C. A),
Pac. R. Co. v. Maerkl, 117 C. C. A. 237, 230 Fed. 88. :
198 Fed. 1. 8. Fellow servants within meaning of

6. Concurrent negligence of fellow act.—Zikbds v. Oregon, etc., Nav. Co.
servant.—Easter v. Virginian R. Co. (C. C.), 179 Fed. 893, 895, citing Bal-
(W. Va.), 86 S. E. 37. See ante, timore, etc, R. Co. v. Baugh, 149 U.
“Proximate and Concurrent Cause of S. 368, 37 L. Ed. 772, 13 S. Ct. 914;
Injury,” § 55. Missouri, etc., R. Co. v. Mooney (Tex.

Civ. App.), 181 S. W. 543.
147 FELLOW SERVANT § 60

and the members of the crew working under him are fellow servants within
the rule of the federal courts; as are a boiler maker and his helper; 1° con-
ductor and flagman ; 11 and two truckers loading a car.12 And where plain-
tiff, a track walker, was injured while assisting certain fellow employees in
repairing a switch in a railroad yard by being struck by certain cars, kicked
toward him, and from the relative position of plaintiff and his fellow employ-
ees the jury could have found that plaintiff was relying on them to look out
for trains approaching from that direction, their failure to warn him consti-
tuted negligence of fellow servants which, as provided by the act, gave a
right of action against the railroad company.!3

Under the state decisions the employer has been held responsible for the
negligence of a hostler injuring an engineer,!4 an engineer injuring a brake-
man,!® a conductor injuring a brakeman,!®© a switch foreman injuring a
switchman,!7 an engineer injuring a fellow engineer,!® and a brakeman in-

juring a fellow brakeman.!9

9. Section foreman and members of
train crew under him—dZikos v. Ore-
gon, etc., Nav. Co. (C. C.), 179 Fed.
893, 895, citing Northern Pac. R. Co.
v. Hambly, 154 U. S. 349, 33 L. Ed.
1009, 14 S. Ct. 983; Northern Pac. R.
Co. v. Peterson, 162 U. S. 346, 40 L.
Ed. 994, 16 S. Ct. 843; Northern Pac.
R. Co. v. Charless, 162 U. S. 359, 40
L. Ed. 999, 16 S. Ct. 848; Martin wv.
Atchison, etc., R. Co., 166 U. S. 399,
41 L. Ed. 1051, 17 S. Ct. 603.

10. Boiler maker and helper.—Law
v. Illinois Cent. R. Co., 126 C. C. A.
27, 208 Fed. 869.

11. Pennsylvania R. Co. v. Gough-
nour, 126 C. C. A. 39, 208 Fed. 961.

12. Illinois Cent. R. Co. wv. Porter,
125 C. C. A. 55, 207 Fed. 311.

13. Negligence of fellow servants—
What constitutes——Colasurdo v. Cen-
tral Railroad (C. C.), 180 Fed. 832, af-
firmed in 113 C. C. A. 379, 192 Fed.
901, i

14. Holdings of state courts as to
who are fellow servants.—Taylor 7.
Southern R. Co., 56 Ind. App. 625, 101
N. E. 506, -

15. Hartman v. Western Maryland
R. Co., 246 Pa. 460, 92 Atl. 698. “Un-
der the Federal Employers’ Liability
Act the fellow-servant doctrine was
not available as a defense, and, if the
accident was caused by the negligence
of the engineer in suddenly stopping
the train with unnecessary violence,
the deceased did not assume the risk
of such negligence.” Devine v. Chi-
cago, etc., R. Co., 266 Ill. 248, 107 N.
E. 595, 597, affirmed in 36 S. Ct. 27.

16. Carter v. Kansas, etc., R. Co.
(Tex. Civ. App.), 155 S. W. 638;

Thompson v. Minneapolis, etc., R. Co.
(Minn.), 158 N. W. 42.

17. Sweet v. Chicago, etc, R. Co.,
157 Wis. 400, 147 N. W. 1054.

Where a switch foreman directed
that a car should be poled, which con-
sists in pushing a car with an engine
by means of a stout piece of timber
when they are each on nearly parallel
tracks and the usual method is to per-
mit the car and engine to come close
enough together so that the pole will
be retained in place without the neces-
sity of an employee holding it and then
to push the car, which is in itself dan-
gerous enough; but where the evidence
shows this method was not used but
that the engine without stopping after
the pole was in place continued to
push the car, not giving the employee
a chance to move and he was in fact
killed by the falling of the pole and
the contact between the engine and
car; this was a sufficient showing of
negligence of a fellow servant and the
proximate cause of the injury. Sweet
uv. Chicago, etc. R. Co., 157 Wis. 400,
147 N. W. 1054.

18. Pfeiffer v. Oregon-Washington
R., etc., Co., 74 Ore. 307, 144 Pac. 762.

19. Skaggs v. Illinois Cent. R. Co.,
124 Minn. 503, 145 N. W. 381, 51 L.
R. A., N. S., 40, affirmed in 36 S. Ct.
249.

Evidence in an action by a freight
brakeman to recover damages sus-
tained while jointly engaged with a
fellow brakeman in switching move-
ments, by being caught between the
engine tender and cars left on another
track, considered, and held to warrant
findings that, under the circumstances
disclosed, plaintiff had the right to rely
§§ 60-61 FEDERAL EMPLOYERS LIABILITY ACT. 148

Where the duty of inspection is imposed upon a fellow servant, his failure
to make, or negligence in making, such inspection renders the railroad liable.?1

And a fellow servant does not become a vice-principal because for the
moment he assumes to give directions as to the method of doing the work.??

But it may be a question for the jury to determine whether a fellow serv-
ant was guilty of negligence. As where an employee and other servants were
unloading rails from a car, whether the plaintiff was injured by the negli-
gence of his fellow servants in raising one end of the rail while loading,
without the customary signal, thereby causing the other end to hit him, was a

question for the jury.?%

§ 61. Limitation by Scope of Employment.—At the time of the en-
actment of the statute it was the well-established doctrine of the common
law that the master is responsible for the negligent acts of his servants while
acting as such servants, if committed in the course of their employment, al-
though unauthorized or even forbidden by the master, and without regard to
their motives, but that he was not responsible for an act outside of the scope
of their employment. So while construing the federal Act literally, it imposes
liability upon the employer for the negligent acts of its officers, agents, or
employees, it would seem to be liable only for such acts as are performed
by its officers, agents, and employees within the course of their employment.
Because, in the absence of ruling of the federal courts to the contrary, it is
not believed that it may fairly be said that by this act congress undertook to
abrogate the fundamental principles of the common law in respect of the
vicarious responsibility of the master for the negligent acts of his servants.?4
Therefore a section foreman, although not a superior foreman in a force,
is acting within the scope of his employment, when he warns the workmen
of an imaginary impending danger, as the collision of a fast freight train
with the work train, and the master is responsible for an injury to an em-
ployee under the superior foreman caused by the warning.25 But the com-
pany is held not to be liable for injuries received by an employee being
pushed out of the door of a baggage car by two other employees wrestling
therein.2® And a call boy, who is instructing another such boy in the serv-
ice, does not stand in the relation’ of vice-principal so as to make the com-

on the other brakeman’s statement Northern Pac. R. Co., 86 Wash. 665,

that the cars were clear for the engine
to pass, and that.the making thereof
constituted negligence attributable to
defendant under the Federal Employ-
ers’ Liability Act. Skaggs «7. Illinois
Cent. R. Co. 124 Minn. 503, 145 N.
W. 381, 51 L. R. A, N. S., 40, affirmed
in 86 S. Ct. 249.

21. Inspection.—Michigan Cent. R.
Co. v. Schaffer, 136 C. C. A. 413, 220
Fed. 809; Carter v. Kansas, etc., R. Co.
(Tex. Civ. App.), 155 S. W. 638.

22. As vice-principal because assum-
ing to direct work.—Vanordstrand wv.

151 Pac. 89.

23. Question for jury, whether serv-
ant negligent.—Cherpeski wv. Great
Northern R. Co., 128 Minn. 360, 150 N.
W. 1091.

24. Limitation by scope of employ-
ment.—Cincinnati, etc., R. Co. v. Wil-
son, 161 Ky. 640, 171 S. W. 430. See
also, Arizona Eastern R. Co. v. Bryan
(Ariz.), 157 Pac. 376.

25. Cincinnati, etc, R. Co. v. Wil-
son, 161 Ky. 640, 171 S. W. 430.

26. Reeve v. Northern Pac. R. Co..
82 Wash. 268, 144 Pac. 63.
149 : FELLOW SERVANT. § 61

pany liable even if he had instructed such boy to jump a train to ride part
of the way to make a call, since such an instruction was outside the scope
of any authority conferred upon him and the practice prohibited by the com-
pany.27 In the case of Reeve v. Northern Pac. R. Co., 82 Wash. 268, 144
Pac. 63, 64, the court said:

“The primary purpose of the statute was to permit a recovery in that class
of cases where the right would be otherwise defeated under the common-
law doctrine of fellow servant. Its purpose was not to render the carrier
liable in all instances, and under all circumstances, where one employee
of a carrier is injured by the careless and negligent acts of another. It
is not enough that the negligent act causing the injury occur during the
existence of the employment, nor is it enough that it occur during the
hours the employees are required to be on duty. To render the carrier
liable the negligent act must occur while the employees are doing some
act required in the prosecution of the carrier’s business.”

In a Kentucky case?8 the contention was advanced that employees, who
after the completion of the day’s work, were carrying home unsuitable
bridge timber on a hand car, were not within the scope of their employment
so that the company would be liable but, in Louisville, etc., R. Co. v. Walker,
162 Ky. 209, 172.8. W. 517, 521, the court said:

“Here the actionable negligence consisted in the permission given by an
authorized employee of the company to the men to use, for the pur-
pose they were using it, the push car, and their negligent use of it was
the same as his negligent use of it would have been. If the employee
who gave to these men permission to use the car had been using it him-
self in the manner they were using it, we think there could be no doubt
of the liability of the company for his negligence, and in our opinion
there is no difference, so far as the liability of the company is con-
cerned, between his use of the car and the use made of it with his
permission.”

On the other hand it cannot be contended that the very act of negligence
complained of must have been an act within the servant’s employment; in
other words in order to hold the defendant liable that it is necessary that it
should have hired the servant to perform the negligent act.?9

27. Vanordstrand v. Northern Pac. 29. Arizona Eastern R. Co. v. Bryan
R. Co., 86 Wash. 665, 151 Pac. 89. (Ariz.), 157 Pac. 376.

28. Louisville, etc., R. Co. v. Walker,
162 Ky. 209, 172 S. W. 517.
CHAPTER X.

Contrinutory NEGLIGENCE.

What Constitutes Contributory Negligence Unchanged, § 62.
. Abolished When Statute Violated, § 63.

. Proportionate Recovery in Other Cases, § 64.

. Extent of Rule as to Proportionate Recovery, § 65.

As Proximate Cause of Injury, § 66.

. As Question of Law or Fact, § 67.

on wwe

§ 62. What Constitutes Contributory Negligence Unchanged.—
The act does not change the rule of law as to what constitutes contributory
negligence.t It exists as before and requires an employee to exercise ordi-
nary care, or such care in performing his duties as would an ordinarily pru-
dent person under like circumstances.? But all that is required of an infant
is that he exercise care and prudence equal to his capacity But an employee
placed in a position of peril should have his conduct judged by the condi-
tions with which he was confronted, at the time and not as they subse-
quently occurred. That is, if there were open to him two or more possible
means of escape, the fact that he adopted one of such by which he was in-
jured, will not render him guilty of contributory negligence when had he
adopted another he would not have been injured.#

§ 63. Abolished When Statute Violated.°—By § 3 of the act it is
provided that “no such employee who may be injured or killed shall be held
to have been guilty of contributory negligence in any case where the viola-
tion by such common carrier of any statute enacted for the safety of em-
ployees contributed to the injury or death of such employee.’ In other

1. Rule as to what constitutes not lantern that threw no light up or

changed.—Raines v. Southern R. Co.,
169 N. C. 189, 85 S. E. 294.

2. United States—Seaboard Air Line
Railway v. Horton, 233 U. S. 492, 58 L.
Ed. 1062, 34 S. Ct. 635, L. R. A. 1915C,
1, Ann. Cas. 1915B, 475.

Kentucky.—Nashville, etc., R. Co. v.
Banks, 156 Ky. 609, 161 S. W. 554;
Louisville, etc, R. Co. v. Holloway,
163 Ky. 125, 173 S. W. 343.

Utah—Grow v. Oregon, etc., R. Co.,
44 Utah 160, 138 Pac. 398, Ann. Cas.
1915B, 481.

Plaintiff who was injured by falling
from the platform of a baggage car
because the steps had been knocked
off by an obstruction near the track,
was not guilty of contributory negli-
gence in failing to discover the condi-
tion when. there were no lights on the
platform and he was furnished with a

150

down but only “glared from the sides.”
Ferebee v. Norfolk, etc., R. Co., 163
N. C. 351, 79 S. E. 685, 52 L. R. A,, N.
S., 1114; S. C., 167 N. C. 290, 83 S.
E. 360, affirmed in 35 S. Ct. 781.

Distinguished from assumption of
risk—See post, “Distinguished from
Contributory Negligence,” § 68.

8. Care required of infant.—Raines
v. Southern R. Co., 169 N. C. 189, 85
S. E. 294.

4. Acts in emergency—Choice of
means of escape.—Louisville, etc. R.
Co. v. Holloway, 163 Ky. 125, 173 S.
W. 343.

5. Abolished when statute violated.
—As to necessity of violation being
proximate cause of injury, see post,
“Available When No Statute Vio-
lated,” § 69.
151

CONTRIBUTORY NEGLIGENCE.

§ 63

words, as to cases of this character, the defense of contributory negligence
is wholly abolished. In Grand Trunk, etc., R. Co. v. Lindsay, 233 U. S.
42, 58 L. Ed. 838, 34 S. Ct. 581, 583, Ann. Cas. 1914C, 168, the court said:

“Although by the 3d section of the Employers’ Liability Act a recovery is
not prevented in a case of contributory negligence, since the statute

6. United States—Smith v. Atlantic,
etc.,, R. Co., 127 C. C. A. 311, 210 Fed.
761; Johnson v. Great Northern R.
Co., 102 C. C. A. 89, 178 Fed. 643, 30
L. R. A., N. S., 990; Grand Trunk, etc.,
R. Co. v. Lindsay, 233 U. S. 42, 58 L.
Ed. 838, 34 S. Ct. 581, Ann. Cas. 1914C,
168; Seaboard Air Line Railway v.
Tilghman, 237 U. S. 499, 59 L. Ed.
1069, 35 S. Ct. 653; Great Northern R.
Co. v. Otos (U. §.), 36 S. Ct. 124;
Clark v. Erie R. Co. (D. C.), 230 Fed.
478; San Antonio, etc., R. Co. v. Wag-
ner (U. S.), 36 S. Ct. 626; Spokane,
etc, R. Co. v. Campbell (U. S.), 36 S.
Ct. 683.

Arkansas.—St. .ouis, etc, R. Co. v.
Anderson (Ark.), 173 S. W. 834.

Kansas—Thornbro v. Kansas, etc.,
R. Co., 91 Kan. 684, 189 Pac. 410, Ann.
Cas. 1915D, 314; S. C., 92 Kan. 681,
142 Pac. 250.

Kentucky—Louisville, etc., R. Co. v.
Strange, 156 Ky. 439, 161 S. W. 239;
Nashville, etc, R. Co. v. Henry, 158
Ky. 88, 164 S. W. 310; Kentucky, etc.,
R. Co. v. Minton (Ky. App.), 180 S.
W. 831.

Minnesota—Ahrens v. Chicago, etc.,
R. Co., 121 Minn. 335, 141 N. W. 297;
Burho v. Minneapolis, etc., R. Co., 121
Minn. 326, 141 N. W. 300; La Mere vw.
Railway Transfer Co., 125 Minn. 159,
145 N. W. 1068, Ann. Cas. 1915C, 667.

Missouri. — Trowbridge v. Kansas,
etc, R. Co. (Mo. App.), 179 S. W. 777;
Moore v. St. Joseph, etc., R. Co. (Mo.),
186 S. W. 1035.

Nebraska.—Huxoll v. Union Pac. R.
Co. (Neb.), 155 N. W. 900.

North Carolina—Fleming v. Norfolk,
etc., R. Co., 160 N. C. 196, 76 S. E. 212;
Sears v. Atlantic, etc, R. Co. 169 N.
C. 446, 86 S. E. 176.

South Dakota—Fletcher v. South
Dakota Cent. R. Co. (S. Dak.), 155
N. W. 3.

Texas—San Antonio, etc. R. Co. v.
Wagner (Tex. Civ. App.), 166 S. W.
24, affirmed in 36 S. Ct. 626.

“The defendant complains because
the court did not permit the jury to
consider the contributory negligence
of the plaintiff in reduction of dam-
ages. * * * The only negligence
which the court left in the case was
based upon noncompliance with the
safety appliance act of congress. As

affected by the proviso contained in §
3 of the Federal Employers’ Liability
Act of 1908, contributory negligence
is no more available to a defendant
under the situation developed at this
trial than is the defense of assump-
tion of risk. * * * The trial court
took the view, and to that extent
agreed with the defense, that the de-
tendant was guilty of no actionable
tegligence unless it was found in the
failure to provide a coupler complying
with the federal safety appliance act.
Such being the case, we can see no
theory upon which plaintiff's negli-
gence could avail either as a defense
or in reduction of damages.” Burbo
v. Minneapolis, etc., R. Co., 121 Minn.
326, 141 N. W. 300, 302.

“The contention of defendant that
plaintiff could have run ahead of the
car and opened the knuckle on the
standing car is of no merit. At most,
it goes to plaintiff's contributory negli-
gence, which is not defensive matter
in these actions. We think there was
evidence to sustain the finding of the
jury that plaintiff was engaged in mak-
ing a coupling, at the time he was in-
jured, in the customary way of making
it, when a coupler fails to work prop-
erly.” Burho v. Minneapolis, etc., R.
Co., 121 Minn. 326, 141 N. W. 300, 302.

“By the act of 1908, congress made
the doctrine of comparative negligence
applicable to all cases based on the
negligence of the railroad and contrib-
utory negligence of the injured party,
except in cases where the injury is in-
flicted or the death caused through a
violation of the safety appliance act.
In the last class of cases the defense
of contributory negligence is wholly
abolished. Richey, Fed. Employers’
Liability Act, p. 39; Horton v. Sea-
board, etc., R. Co., 157 N. C. 146, 72
S. E. 958. The same rule applies to
assumed risk, and authorities on that
subject are also authorities on the
question of contributory negligence.
Freeman v. Powell (Tex. Civ. App.), 144
S. W. 1033, writ of error denied in 147
S. W. xv, 106 Tex. 626, no op.; Cola-
surdo uv. Central Railroad (C. C.), 180
Fed. 832, [affirmed in 113 C. C. A. 379,
192 Fed. 901].” San Antonio, etc., R.
Co. v. Wagner (Tex. Civ. App.), 166
S. W. 24, 28, affirmed in 36 S. Ct. 626.
170 S. W. xviii, no op.
§§ 63-64 FEDERAL EMPLOYERS LIABILITY ACT. 152

substitutes for it a system of comparative negligence, whereby the dam-
ages are to be diminished in the proportion which his negligence bears
to thé combined negligence of himself and the carrier—in other words,
the carrier is to be exonerated from a proportional part of the damages
corresponding to the amount of negligence attributable to the employee
(Norfolk, etc., R. Co. v. Earnest, 229 U. 5. 114, 122, 57 L. Ed. 1096,
1101, 33 S. Ct. 654, Ann. Cas. 1914C, 172),—nevertheless, under the
terms of a proviso to the section, contributory negligence on the part
of the employee does not operate even to diminish the recovery where
the injury has been occasioned in part by the failure of the carrier to
comply with the exactions of an act of Congress enacted to promote the
safety of employees. In that contingency the statute abolishes the de-
fense of contributory negligence, not’only as a bar to recovery, but for
all purposes.”

So, in an action under the Federal Employers’ Liability Act and the safety
appliance act, proof by plaintiff of a violation of the safety appliance act,
by the use of a defective coupler, and tat its use was the proximate cause
of the injury, makes a case of absolute tiability, for the duty to furnish such
appliances as are prescribed by the later act is absolute, and not limited by
the exercise of due care and diligence on the part of the carrier; and the
defenses of contributory negligence and assumption of risk will not defeat a
recovery for an injury so caused.7 And in this connection it is to be noted
that where plaintiff’s contributory negligence and the defendant’s violation
of a provision of the safety appliance act are concurring proximate causes
of the injury or death of an employee, it is plain that the employers’ lia-
bility act requires that the proximate concurring negligence of the employee
be disregarded in determining the amount of recovery.™*

The statutes referred to in this section, like those in § 4 are federal stat-
utes,S but whether the statute meant by the act is state or federal, will not
be considered when the state statute is otherwise irrelevant.?

§ 64. Proportionate Recovery in Other Cases.—As to all other
cases it is provided that “the fact that the employee 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 attribu-
table to such employee.”?° At common law there could be no recovery in

7. Liability absolute in such a case.
—Steele v. Atlantic, etc, R. Co. (S.
C.), 87 S. E. 639, 642.

Under this statute, where a railroad
company failed to comply with the
provisions of the safety appliance act
and such failure “contributed” to an
injury suffered by an employee, no act
of the employee, no matter how neg-
ligent it may be or to what extent it
may in fact have contributed to the
‘injury, can be urged as “contributory
negligence” for purposes of defense.
Fletcher v. South Dakota Cent. R. Co.
(S. Dak.), 155 N. W. dy Bs

7a. Spokane, etc., R. Co. v. Camp-
bell, 36 S. Ct. 683, 689.

8. Federal statutes are meant.—Sea-
board Air Line Railway v. Tilghman,
237 U. S. 499, 59 L. Ed. 1069, 35 S.
Ct. 653; Gee v. Lehigh Valley R. Co.,
163 App. Div. 274, 148 N. Y. S. 882.
See post, “Section Refers to Federal
Statutes,” § 71.

9. Farley v. New York, etc., R. Co.,
87 Conn. 328, 87 Atl. 990.

10. Proportionate diminution of
damages.—See the Act of 1909, § 3.
See, also, Cain v. Southern R. Co. (C.
C.), 199 Fed. 211, 213; Central R. Co.
133

CONTRIBUTORY NEGLIGENCE.

§ 64

such a case, the contributory negligence being a complete bar or defense.
But this statute rejects the common-law rule and adopts another, deemed

more reasonable.11

Under this clause it has been held that contributory negligence does not,
in any case, defeat a recovery, but only diminishes the amount of dam-

ages.1?

v. Colasurdo, 113 C. C. A. 379, 192
Fed. 901, 902, affirming 180 Fed. 832;
Johnson v. Great Northern R. Co., 102
Cc. C. A. 89, 178 Fed. 643, 648, 30 L.
R. A., N. S., 990.

11. Seaboard Air Line Railway v.
Tilghman, 237 U. S. 499, 59 L. Ed.
1069, 35 S. Ct. 653.

12. United States—lIllinois Cent. R.
Co. v. Nelson, 122 C. C. A. 258, 203
Fed. 956; Wright v. Yazoo, etc. R.
Co. (D. C.), 197 Fed. 94, 96, affirmed
in 235 U. S. 376, 35 S. Ct. 130; Chicago,
etc., R. Co. v. McCormick, 118 C. C.
A. 527, 200 Fed. 375, 45 L. R. A, N.
S., 539; Copper River, etc., R. Co. wv.
Heney, 128 C. C. A. 131, 211 Fed. 459,
462; Louisville, etc, R. Co. v. Lank-
ford, 126 C. C. A. 247, 209 Fed. 321;
Grand Trunk, etc., R. Co. v. Lindsay,
120 C. C. A. 166, 201 Fed. 836, 841, af-
firmed in 32 S. Ct. 581; Spokane, etc.,
R. Co. v. Campbell, 133 C. C. A. 370,
217 Fed. 518, affirmed in 36 S. Ct. 683;
Seaboard Air Line Railway v. Tilgh-
man, 237 U. S. 499, 59 L. Ed. 1069, 35
S. Ct. 653; Union Pac. R. Co. v. Ful-
ler, 122 C. C. A. 359, 204 Fed. 45; Port-
land Terminal Co. v. Jones (C. C. A.),
227 Fed. 8; Siegesmund wv. Chitago,
etc., R. Co. (C. C. A.), 229 Fed. 956;
Virginian R. Co. v. Linkous (C. C. A.),
230 Fed. 88, 91.

Alabama.—Southern R. Co. v. Peters
(Ala.), 69 So. 611.

Arizona.—Arizona Eastern R. Co. v.
Bryan (Ariz.), 157 Pac. 376.

Arkansas.—St. Louis, etc., R. Co. v.
Rodgers (Ark.), 176 S. W. 696; St.
Louis, etc., R. Co. v. Sharp (Ark.),
171 S. W. 95.

Georgia.—Charleston, etc., R. Co. v.
Brown, 13 Ga. App. 744, 79 S. E. 932,
934; Bowers v. Southern R. Co., 10
Ga. App. 367, 73 S. E. 677; Southern
R. Co. v. Hill, 139 Ga. 549, 77 S. E.
803; Charleston, etc, R. Co. v. Syl-
vester (Ga. App.), 86 S. E. 275. See,
also, Louisville, etc., R. Co. v. Kemp,
140 Ga. 657, 79 S. E. 558.

Idaho.—Neil v. Idaho, etc., Railroad,
22 Idaho 74, 125 Pac. 331.

Illinois —Steckstor v. Cleveland, etc.,
R. Co., 169 Ill. App. 40; Hall v. Van-
dalia R.'Co., 169 Ill. App. 12.

Iowa.—Byram vw. Illinois Cent. R. Co.

(Iowa), 154 N. W. 1006; Kenyon v.
Illinois Cent. R. Co. (Iowa), 155 N.
W. 810.

Kansas—Barker v. Kansas, etc., R.
Co., 88 Kan. 767, 129 Pac. 1151, 43 L.
R. A., N. S., 1121.

Kentucky.—Long v. Southern R. Co.,
155 Ky. 286, 159 S. W. 779; Louis-
ville, etc., R. Co. v. Strange, 156 Ky.
439, 161 S. W. 239, 242; Nashville, etc.,
R. Co. v. Banks, 156 Ky. 609, 161 S.
W. 554; Cincinnati, etc, R. Co. vw.
Swann, 160 Ky. 458, 169 S. W. 886;
Louisville, etc, R. Co. v. Winkler, 162
Ky. 843, 173 S. W. 151; Cincinnati,
etc., R. Co. v. Nolan, 167 Ky. 11, 179
S. W. 1046.

Louisiana—Jones v. Kansas, etc., R.
Co., 137 La. 178, 68 So. 401, reversed
on other grounds in 36 S. Ct. 513.

Maryland.—Baltimore, etc., R. Co. v.
Whitacre, 124 Md. 411, 92 Atl. 1060.

Minnesota.— McDonald v. Railway
Transfer Co., 121 Minn. 273, 141 N.
W. 177; La Mere v. Railway Transfer
Co., 125 Minn. 159, 145 N. W. 1068,
Ann. Cas. 1915C, 667; Wiles v. Great
Northern R. Co., 125 Minn. 348, 147
N. W. 427, reversed on the facts in 36
S. Ct. 406.

Missouri.—Pankey v. Atchison, etc.,
R. Co., 180 Mo. App. 185, 168 S. W.
274; Cross v. Chicago, etc., R. Co., 191
Mo. App. 202, 177 S. W. 1127; S. C,,
186 S. W. 1130; Fish v. Chicago, etc.,
R. Co., 263 Mo. 106, 172 S. W. 340:
Hardwick v. Wabash R. Co., 181 Mo.
App. 156, 168 S. W. 328; Sells v. Atchi-
son, etc., R. Co. (Mo.), 181 S. W. 106.

New York.—Gee v. Lehigh Valley R.
Co., 163 App. Div. 274, 148 N. Y. S.
882, 883. ei

North Carolina—Raines v. Southern
R. Co., 169 N. C. 189, 85 S. E. 294;
Horton v. Seaboard, etc., R. Co., 157
N. C. 146, 72 S. E. 958; Montgomery
v. Carolina, etc., R. Co., 163 N. C. 597,
80 S. E. 83; Kenney v. Seaboard, etc.,
R. Co., 165 N. C. 99, 80 S. E. 1078;
Fleming v. Norfolk, etc., R. Co., 160
N. C. 196, 76 S. E 212; Saunders v.
Southern R. Co., 167 N. C. 375, 83 S.
E. 573; Lloyd v. Southern R. Co., 166
N. C. 24, 81 S. E. 1003, affirmed in 36
S. Ct. 210.

North Dakota. — Manson v. Great
§ 65

FEDERAL EMPLOYERS LIABILITY ACT.

154

§ 65. Extent of Rule as to Proportionate Recovery.—Under the act
of 1906 there could only be a recovery where the contributory negligence of
the plaintiff was slight and the negligence of the defendant gross in com-
parison,!$ but not in a case where the negligence of each was equal, or that
of the plaintiff greater. Under the present act .this is changed. The rule
as to proportionate damages, permits a recovery, even though the negligence
of the employee is equal to or greater than that of the defendant company,"
or if the defendant was in the slightest degree negligent.15 In Pennsylvania
Co. v. Cole, 131 C. C. A. 244, 214 Fed. 948, 950, the court said:

“Under this act, no degree of negligence on the part of the plaintiff, how-
ever gross or proximate, can, as matter of law, bar recovery; for, as
said in Norfolk, etc., R. Co. v. Earnest, 229 U. $. 114, 57 L. Ed. 1096,
33 S. Ct. 654, Ann. Cas. 1914C, 172, the direction that the diminu-
tion shall be ‘in proportion to the amount of negligence attributable to
such employee’ means that: ‘Where the causal negligence is partly at-

Northern R. Co. (N. Dak.), 155 N.
W.. 32.

Oregon. — Chadwick v. Oregon-
Washington R., etc., Co., 74 Ore. 19,
144 Pac. 1165, L. R. A. 1915C, 823;
Pfeiffer v. Oregon-Washington R.,
etc., Co., 74 Ore. 307, 144 Pac. 762.

South Dakota—Fletcher v. South
Dakota Cent. R. Co. (S. Dak.), 155 N.
W. 3.

Texas.—Missouri, etc, R. Co. w.
Rentz (Tex. Civ. App.), 162 S. W. 959,
writ of error denied in 163 S. W. xv,
no op.; Carter v. Kansas, etc., R. Co.
(Tex. Civ. App.), 155 S. W. 638. See,
also, Kansas, etc., R. Co. v. Hall (Tex.
Civ. App.), 152 S. W. 445.

Vermont—White v. Central Ver-
mont R. Co., 87 Vt. 330, 89 Atl. 618,
affirmed in 35 S. Ct. 865.

Washington—Fogarty v. Northern
Pac. R. Co., 74 Wash. 397, 133 Pac.
609.

West Virginia—Easter v. Virginian
R. Co. (W. Va.), 86 S. E. 37.

“Contributory negligence on the
part of the injured servant diminishes,
but does not defeat, a recovery.” Bow-
ers v. Southern R. Co., 10 Ga. App.
367, 73 S. E. 677, 679.

“Under the act of congress * * *
contributory negligence is not an en-
tire defense against an injured em-
ployee where any negligence of the de-
fendant or any of its other employees
is shown which caused the injury of
the plaintiff either in whole or in part.
The utmost that can be claimed for
the contributory negligence of the
plaintiff is mitigation of damages. In
short the contributory negligence of
the plaintiff, alone, will not operate to
defeat his cause of action, but may be
shown to reduce the damages which

he might otherwise claim in the pro-
portion which his ‘own negligence
bears to the sum total of all negli-
gence affecting the transaction from
every source.” Chadwick v. Oregon-
Washington R., etc., Co., 74 Ore. 19,
144 Pac. 1165, 1167, L. R. A. 1915C,
823.

In an action by an administrator of
an employee of a railroad company to
recover damages of the company for
his wrongful death, coming within the
meaning of the federal employers’ li-
ability act, an affirmative answer by
the jury to the issue of contributory
negligence does not preclude an an-
swer to the issue of damages, when
the issue as to the defendant’s negli-
gence has been correctly answered in
the affirmative. Saunders v. Southern
R. Co., 167 N. C. 375, 83 S. E. 573.

18. Philadelphia, etc, R. Co. wv.
Tucker, 35 App. D. C. 123. § 2 of act
of 1906.

14. Where employee’s negligence
equal to or greater than that of de-
fendant.—United States. — Louisville,
etc., R. Co. v. Wene, 121 C. C. A. 245,
202 Fed. 887; Pennsylvania Co. v. Cole,
131 C. C. A. 244, 214 Fed. 948.

Georgia—Southern R. Co. wv. Hill,
139 Ga. 549, 77 S. E. 803.

Washington. — Anest v. Columbia,
etc., R. Co. (Wash.), 154 Pac. 1100.

15. Anest v. Columbia, etc., R. Co.
(Wash.), 154 Pac. 1100, 1103.

See Arizona Eastern R. Co. v. Bryan
(Ariz.), 157 Pac. 376, 380, where it is
said: “If no defense was pleaded
other than contributory negligence in
an action based upon the Federal Lia-
bility Act, the plaintiff would as a
matter of law be entitled to recover
a nominal judgment.”
155 CONTRIBUTORY NEGLIGENCE. § 65

tributable to him and partly to the carrier, he shall not recover full dam-
ages, 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.’ To say that plaintiff’s negligence
equals the combined negligence of plaintiff and defendant is impossi-
ble.”

The supreme court, in Norfolk, etc, R. Co. v. Earnest,® and Grand
Trunk, etc., R. Co. v. Lindsay,!7 has interpreted the act to mean that the
defendant is liable, if through other employees it is guilty of any causative
negligence no matter how slight in comparison to that of plaintiff, and that
the total damages should be proportioned between plaintiff and defendant
according to their respective fractions of the total negligence.'8 Thus it
will be seen that under this statute it is not a question of majority of negli-
gence, but rather one of proportion. Any negligence of the defendant work-
ing injury to the plaintiff would therefore entail some damage. For illus-
tration, let us suppose that both parties were equally negligent in the esti-
mation of the jury and that the actual damages of the defendant were prop-
erly assessable at $2,000. In such a case the verdict should be for the plain-
tiff in the sum of $1,000, for the reason that his negligence is one-half of
the sum total of all the negligence of both parties.1®

Possibly this would be more clearly understood and not so confusing in
its application were the doctrine of comparative negligence, by which name
it is often called, entirely eliminated, as it must be; because this is not com-
parative negligence. In comparative negligence there may be a point in
which the negligence of the employee exceeds that of the employer and pre-
vents a recovery but in thus proportionating negligence this is never so, as
a part will never equal or exceed the whole, and it is this part of the em-
ployee’s negligence that is to reduce the damages in the proportion that it
bears to the whole negligence. True the negligence of the parties is com-
pared, but not primarily to determine the damages, but to determine the pro-
portion in which the negligence of each contributed to the total injury and
damage, upon the determination of which the plaintiff’s recovery is to be
reduced accordingly.

Thus in reversing the lower court for its failure to give effect to the rule
as laid down in the statute, and permitting the jury to reduce the amount

16. 229 U. S. 114, 122, 57 L. Ed. said: “The cases must therefore be

1096, 33 S. Ct. 654, Ann. Cas. 1914C,
172.

17. 233 U. S. 42, 47, 58 L. Ed. 838,
34 S. Ct. 581, Ann. Cas. 1914C, 168.

18. New York, etc., R. Co. v. Niebel,
131 C. C. A. 248, 214 Fed. 952, 955.

19. Chadwick v. Oregon-Washington
R., etc, Co., 74 Ore. 19, 144 Pac. 1165,
1169, L. R. A. 1915C, 823.

In Fogarty v. Northern Pac. R. Co.,
74 Wash. 397, 133 Pac. 609, the court
does not seem to have recognized the
rule as above laid down, when it is

rare in which the court would be justi-
fied in saying, as a matter of law, that
the contributory negligence of the em-
ployee so far exceeds the negligence
of the employer that the jury would
not be justified in returning a verdict
in any amount.’ Because it never de-
feats a recovery as long as it is con-
tributory. But negligence of the em-
ployee, when the sole cause of the in-
jury defeats a recovery, but such is
not contributory negligence as in such
a case the defendant is not negligent.
FEDERAL EMPLOYERS LIABILITY ACT. 156

§§ 65-66
of damages by whatever amount they thought proper, without naming any
standard to which their action should conform, other than their own con-
ception of what was reasonable, in Seaboard Air Line Railway v. Tilghman,
237 U. S. 499, 59 L. Ed. 1069, 35 S. Ct. 653, 654, the court said:

“It means, and can only mean, as this court has held, that, where the
causal negligence is attributable partly to the carrier and partly to the
injured employee, he shall not recover full damages, but only a dimin-
ished sum bearing the same relation to the full damages that the negli-
gence attributable to the carrier bears to the negligence attributable to
both; the purpose being to exclude from the recovery a proportional
part of the damages corresponding to, the employee’s contribution to
the total negligence.”

§ 66. As Proximate Cause of Injury.—In order to diminish a re-
covery the contributory negligence of the employee must have been the
’ proximate cause of his injury.2° So if an employee had fallen asleep on the
track, his negligence in doing so would not be contributory, in a legal sense,
unless it was the proximate cause of the injury to him. So if, notwithstand-
ing his negligence in sleeping on the track, the defendant’s engineer, after
he saw him lying there and became aware of his perilous situation, could,
by exercising the proper care, have stopped the train in time to avoid the
injury, and failed to do so, his negligence in not doing so would be consid~
ered as the proximate cause of intestate’s death.*?

That is the doctrine of last clear chance as under the common law is still
applicable, and in the case of an employee on the track the duty of the com-
pany’s employees not to injure him begins, not from the time of the actual
discovery of his perilous situation but from the time when in the exercise
of proper diligence in keeping a lookout ahead they would have discovered
him and could have avoided the injury.2* Holding that under the doctrine
of last clear chance, a recovery for the plaintiff could not be sustained and
that the trial court erred in refusing a dismissal as of nonsuit, where the
evidence showed that an employee who had been sent forward to protect
his train while it was clearing the track, went to sleep and was killed by an
on coming train, in Southern R. Co. v. Gray (U. S.), 36 S. Ct. 558, the
court said:

“When it first became possible for the engineer to see signal lights, 1,254
feet away he had a right to suppose the brakeman was standing there
on. guard. Immediately, he says, the customary signal was sounded.
No duty to the brakeman demanded an instant effort to stop the train,—
the indicated danger was more than half a mile away. Moreover, ap-

20. Contributory negligence as proxi-
mate cause.—Raines v. Southern R.
Co., 169 N. C. 189, 85 S. E. 294; Carter
v. Kansas, etc., R. Co. (Tex. Civ. App.),
155 S. W. 638.

22. Raines v. Southern R. Co., 169
N. C. 189, 85 S. E. 294, 296.

23. Last clear chance still applicable.
—Gray v. Southern R. Co., 167 N. C.
433, 83 S. E. 849, reversed in 36 S. Ct.
538 on application of law to facts. See,
also, Ellis v. Louisville, etc., R. Co.,
155 Ky. 745, 160 S. W. 512; Doichinoff
v. Chicago, etc. R. Co. (Mont.), 154
Pac. 924.
157 § 66

CONTRIBUTORY NEGLIGENCE.

plication of emergency apparatus on that moment, it appears, would not
have caused a stop in time to prevent the accident. There is no evi-
dence that the engineer could have seen the brakeman a single moment
before he did, or omitted thereafter to do all within his power.”

Nor has the doctrine any application to a case where a conductor of a freight
train was walking in a yard along a switch track parallel to the one upon
which his train was standing, and was struck by a switch engine, when it
does not appear that the engineer presumed, or was bound to presume, that
the conductor would not step off the track before the accident occurred, and,
when he first realized that the conductor was in peril, he stopped his train
within 80 feet, which was as quickly as it could have been stopped; and it
does not appear that by the exercise of reasonable care and prudence the
engineer could have prevented the accident.?4

The common-law principle controlling the right to recover, that is, that
in the negligent act of the defendant must be found the proximate cause of
the injury, is abrogated in cases coming within the statute, and liability is
made to depend upon the question whether such negligent act contributed
“in whole or in part” to the injury.2° That is if the cause of action is es-
tablished by showing that the injury resulted in whole or in part from the
defendant railway company’s negligence, the statute cannot be nullified and
the right of recovery defeated by calling the plaintiff’s act the proximate
cause of the injury; that the plaintiff's negligent act or omission, by what-
ever name it may be called, is the same act or omission, and that it is only
when such act or omission on the part of the plaintiff is the sole cause—
when the defendant’s act is no part of the causation—that the defendant is
free from liability under the act.26 In Illinois Cent. R. Co. v. Skaggs (U.
.S.), 36S. Ct. 249, 250, the court said:

24. Neil z. Idaho, etc., Railroad, 22
Idaho 74, 125 Pac. 331, 341.

25. When proximate cause not appli-
cable.—Smith v. Atlantic, etc., R. Co.,
127 C. C. A. 311, 210 Fed. 761, 765.

26. United States—Grand Trunk, etc.,
R. Co. v, Lindsay, 233 U. S. 42, 47, 58 L.
Ed. 838, 34 S. Ct. 581, Ann. Cas. 1914C,
168, affirming 120 C. C. A. 166, 201
Fed. 836, affirmed in 32 §. Ct. 581;
Louisville, etc., R. Co. v. Wene, 121 C.
C. A. 245, 202 Fed. 887; Smith v. At-
lantic, etc, R. Co. 127 C. C. A. 311,
210 Fed. 761; Illinois Cent. R. Co. v.
Porter, 125 C. C. A. 55, 207 Fed. 311,
316; Spokane, etc. R. Co. vw. Camp-
bell, 133 C. C. A. 370, 217 Fed. 518,
affirmed in 36 S. Ct. 683.

Kentucky—Nashville, etc., R. Co. v.
Banks, 156 Ky. 609, 161 S. W. 554;
Cincinnati, etc, R. Co. v. Goode, 163
Ky. 60, 173 S. W. 329.

Minnesota—Otos v. Great Northern
R. Co., 128 Minn. 283, 150 N. W. 922,
affirmed in 36 S. Ct. 124.

The act of a switchman in stepping
between moving cars to make an un-
coupling because of a defective coupler
is not the sole proximate cause of an
injury received by him while so do-
ing. The violation of the statute is a
contributing cause of the injury. Otos
vw. Great Northern R. Co., 128 Minn.
283, 150 N. W. 922, affirmed in 36 §.
Ct. 126.

In Fletcher z. South Dakota Cent.
R. Co. (S. Dak.), 155 N. W. 3, 5, it
is pointed out that when the employer
is guilty of negligence the employee’s
acts will not be considered the sole
cause of the injury, though it may
have been an intervening cause, but
that it can only be the sole cause when
the employee’s negligence furnished an
occasion for action by the employee in
which he did not exercise reasonable
care, but proceeded recklessly which
was the cause of his injury. It is thus
illustrated: “If the light in the lantern
of a brakeman on a freight train should
§ 66

FEDERAL EMPLOYERS LIABILITY ACT.

158

“It may be taken for granted that the statute does not contemplate a re-
covery by an employee for the consequences of action exclusively his
own; that is, where his injury does not result in whole or in part from
the negligence of any of the officers, agents, or employees of the em-
ploying carrier, or by reason of any defect or insufficiency, due to its

negligence, in its property or equipment. * * *

But, on the other

hand, it cannot be said that there can be no recovery simply because
the injured employee participated in the act which caused the injury.”

The proper construction to put upon the word “contributed,” as used in
this section necessarily includes the proposition that the negligence of plain-
tiff cannot in fact merely contribute to an injury unless there be negligence
on the part of defendant also contributing thereto; neither can the negli-
gence of a plaintiff be the sole cause of an injury, and thus bar recovery
under the act, if the negligence of defendant did contribute to the injury.27
This reduces itself to the proposition that to defeat a recovery on the
ground of negligence of the plaintiff, such must have been the sole cause
of the injury, so that there is no negligence of the defendant to which it is
contributory, nor any negligence of the defendant making it liable, as it is

only liable for negligence.?8

become extinguished through some
negligence of the railroad company,
making it necessary for the brakeman
to relight it, and, in order to relight
it, it was necessary for him to pass
over the moving train to the caboose
or the engine, in doing which he, ow-
ing to the darkness, fell and was in-
jured, there would be a direct line of
causation leading from the negligence
of the company to the injury of the
brakeman. If, in such case, the brake-
man should be negligent while passing
over the moving cars, such negligence
would be contributory to that of the
railroad company.

“A rear brakeman on a long train is
called upon, in the, course of his du-
ties, to communicate with the engineer
on the engine, and his lantern having,
through the negligence of the railroad
company, become broken, thus pre-
venting signaling, it becomes neces-
sary for him to approach such engine
in order to deliver his message. In
order to do so, he elects to board a
passing train, and, after getting safely
aboard of such train, and while on his
way to deliver his message, he com-
mits some negligent act which results
in an injury to him. Here the line of
causation is broken, and the negligence
of the company could not be held to
have contributed to the injury—the
negligence of the company merely fur-
nishing the occasion for the interpo-
sition of an intervening cause, the
recklessness of the brakeman, which

recklessness was the sole cause of the

injury.”
27. Term “contributory,” presup-
poses negligence’ of efendant. —

Fletcher v. South Dakota Cent. R. Co.
(S. Dak.), 155 N. W. 3, 5. See, also,
Arizona Eastern R. Co. v. Bryan
(Ariz.), 157 Pac. 376.

28. Negligence of plaintiff as sole
cause.— Umted States——lIllinois Cent.
R. Co. v. Skaggs (U. S.), 36 S. Ct. 249.

Alabama.—Southern R. Co. v. Peters
(Ala.), 69 So. 611.

Kentucky—Louisville, etc., R. Co. v.
Heinig, 162 Ky. 14, 171 S. W. 853;
Louisville, etc. R. Co. v. Winkler, 162
Ky. 843, 173 S. W. 151.

Massachusetts —Gillis v. New York,
etc., R. Co. (Mass.), 113 N. E. 212.

Missouri—Pankey v. Atchison, etc.,
R. Co., 180 Mo. App. 185, 168 S. W.
274; Trowbridge v. Kansas, etc, R.
Co. (Mo. App.), 179 S. W. 777; Delano
v. Roberts (Mo. App.), 182 S. W. 771.

South Dakota—Fletcher v. South
pole Cent. R. Co. (S. Dak.), 155 N.

Virginia—Virginian R. Co. v. An-
drews (Va.), 87 S. E. 577, 580.

See Central R. Co. v. Young, 118 C.
C. A. 465, 200 Fed. 359, 45 L. R. A,
N. S., 1015, where the employee violated
a rule of the company resulting in a
collision, which caused his death, the
company not being negligent, it was
held judgment should have been en-
tered non obstante veredicto.

“Under the Employers’ Liability Act,
159 CONTRIBUTORY NEGLIGENCE.

§ 66

Instances in which the plaintiff’s negligence has been held to be the sole
cause of his injury, are found where a car inspector, required by the rules
of the company to protect himself by a flag while inspecting or repairing
cars, but failed to do so, and it was not shown that the defendant vio-
lated any duty which it owed to him, or tnat his perilous situation was dis-
covered in time to have avoided the injury.2® A flagman sent out to watch
for trains and warn employees 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 he can-
not recover of the company for an injury which he received by reason of
his neglect, unless his presence and peril were discovered by those in charge
of the train in time to avoid striking him, by the exercise of ordinary care.®°
The negligence of an employee will bar a recovery where he was riding on
a hand car and on rounding a curve perceived a train and from fright jumped
from the car and was injured. Since no other employees acted so, and the
section foreman had time to pick up the employee and remove his hand car
before the train actually came, showing that there was no real danger.3+
Where the deceased was a rear brakeman on a freight train which broke in
two, his neglect to obey the rules of the company, and the signal of the en-
gineer to go back for the purpose of flagging approaching trains, is held to
be the sole cause of his death, when he knew a passenger train was close
behind, which was not negligently operated.®?

if there was negligence on the part of
the defendant, contributory negligence
of the deceased does not bar a recov-
ery but only diminishes the damages
in proportion to the amount of negli-
gence attributable to such employee.
Where, however, there is no negli-
gence on the part of the master, but
the injury is solely the result of the
employee’s negligence, there can be
no recovery. That such is the case
here we think there can be no doubt.
Pankey gave the slow signal and then
went from a place of safety and, with-
out notice or intimation to any one,
placed himself in an exceedingly dan-
gerous situation [between a track on
which the cars were coming and a
freight platform]. He was not re-
quired 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
dangerous instead of an easier and a
surely safe way out.” Pankey v. Atchi-
son, etc., R. Co., 180 Mo. App. 185, 168
S. W. 274, 280.

29. Instances where employee held
negligent.—Kentucky, etc, R. Co. wv.
Mintcn (Ky.), 180 S. W. 831; Wilson
v. Grand Trunk R. Co. (N. H.), 97
Atl. 981.

30. Ellis v. Louisville, etc., R. Co.,
155 Ky. 745, 160 S. W. 612.

31. Papoutsikis v. Spokane, etc., R.
Co. (Wash.), 153 Pac. 1053.

82. Great Northern R. Co. v. Wiles
(U. S.), 36 S. Ct. 406, reversing 147 N.

“W. 427.

See, also, Hull v. Virginian R. Co.
(W. Va.), 88 S. E. 1060, where upon
practically the same state of facts, only
the rear of the train was left on the
main track while the engine was doing
switch work, a rear brakeman was held
not entitled to a recovery.

In Southern R. Co. v7. Peters (Ala.),
69 So. 611, 614, on rehearing, it was
held that the defendant’s negligence
in having a rotten floor over which the
plaintiff was required to roll coal, was
not the proximate cause of an injury
to the plaintiff in attempting to lift a
coal buggy out of a hole, but that in
so doing plaintiffs injury was a result
of a subsequent, independent act of
his own, the sole proximate cause of
his injury. This case can hardly be
sustained as had the floor been in good
condition the buggy would not have
fallen in a hole, the plaintiff would not
have had to lift it out, his injury would
not have resulted. So if he was guilty
of negligence it was at most contribu-
tory.
§ 66 FEDERAL EMPLOYERS’ LIABILITY ACT. 160

On the other hand, the following cases have been held to constitute con-
tributory negligence. A railroad fireman injured by the neglect of the en-
gineer to obey a signal, and his own contributory negligence in disobeying a
rule of the company, and the recognized practice of the road, to see that
signals were obeyed or ascertain the reason for their disobedience, does not
constitute the sole cause of his injury which would defeat a recovery but
only contributory negligence diminishing the damages.°? Plaintiff’s failure
to obey an order was not the sole proximate cause of his injury in a colli-
sion, even though so found by the special verdict of a jury as such finding
was a conclusion of law and not a finding of fact, when they also found that
defendant was guilty of negligence in having insufficient air brakes to enable
the plaintiff to control the speed of the train.24 The negligence of an
employee in walking on the tracks in the yards is not the sole cause of
his death, when the defendant is negligent in failing to display a light on
the train or to give a signal by bell or whistle.25 The negligence
of an employee in going between cars to uncouple them, when the automatic
couplers refused to work, when there was presented other ways to perivrm
the work, is not the sole cause of a resulting injury but only contributory
negligence not constituting a defense.26 Where an employee signaled an
engineer to stop the engine when he observed that the couplers were not in
line and the engineer failing to do so he attempted to kick the coupler on
the engine so as to meet the coupler on the car and in doing so his foot was
crushed, the kicking was not the sole cause of the injury as it arose from the
failure of the engineer to stop on receiving the signal.37 The neglect of an
employee to flag a rear train is not the sole cause of an injury resulting from
a rear end collision, when the engineer of the rear train ran past block sig-
nals without knowledge of their indicating a clear or blocked track.28 The
case of Louisville, etc., R. Co. v. Heinig,3® was to recover damages under
the federal law for the death of a railroad engineer resulting from a collision.
It was primarily the duty of the engineer to observe train orders placed in
his hands and keep a lookout to avoid collisions. It was also the duty of
the conductor under certain conditions to apply the angle cock and stop the
train. It was held that, where the conductor failed to perform his duty,
there might be a recovery for the engineer’s death, although his negligence
created the condition which caused his death#¢ And where the deceased
was a fireman and ran into an open switch, his failure to observe the dan-
ger signal caused by the switch being open and to inform the engineer, was

33. Instances held to constitute con-
tributory negligence.—Pennsylvania Co.
v. Sheeley, 137 C. C. A. 471, 221 Fed.
901.

34. Spokane, etc., R. Co. v. Campbell,
133 C. C. A. 370, 217 Fed. 518, affirmed
in 36 S. Ct. 683.

35. Easter v. Virginian R. Co. (W.
Va.), 86 S. E. 37.

36. Fletcher v. South Dakota Cent.
R. Co. (S. Dak.), 155 N. W. 3.

37. Trowbridge v. Kansas, etc., R.
Co. (Mo. App.), 179 S. W. 777.
38. Hadley v. Union Pac.

(Neb.), 156 N. W. 765.

89. 162 Ky. 14, 171 S. W. 853.
40. Louisville, etc., R. Co. v. Wink-
ler, 162 Ky. 843, 173 S. W. 151.

R. Co.
161 CONTRIBUTORY NEGLIGENCE. §§ 66-67

not the sole proximate cause of injuries received by going into the switch
and colliding with another train standing on it.4%

The question of whether or not the contributory negligence was a proxi-
mate cause of the injury is usually one of fact for the jury.4! It cannot be
said that an employee in using a water gauge without a guard glass, when he
could have cut this off and used the gauge cocks, was the proximate cause of
his injury, when there was evidence to show that these were not an entirely
safe instrumentality because of their liability to clog, and at most the proxi-
mate cause of the injury is a question for the jury.42 But where the negli-
gence of a railroad company consisted of its failure to furnish a proper
drawbar which caused the train to break in two, and the employee’s negli-
gence consisted in his failure to go back and signal an approaching passen-
ger train, it was not error to direct a judgment notwithstanding a verdict
on the theory that the employee’s negligence was the proximate cause of
the injury and not one of concurrent negligence between himself and the
railroad company.#3 é

§ 67. As Question of Law or Fact.—The evidence may in a given
case be such as to require the court to determine whether or not an employee
is guilty of contributory negligence, but when the issues make a case of last
clear chance, this is an admission of contributory negligence.*4

A violation of the printed rules of the railroad company made to regu-
late the employee’s work and conduct is held to be negligence,4®°—it is not

40a. Hackney v. Missouri, etc, R. would have traveled had it been

Co., 96 Kan. 30, 149 Pac. 421.

41. As question for jury.—Carter v.
Kansas, etc., R. Co. (Tex. Civ. App.),
155 S. W. 638.

“Counsel for appellee contends that
Carter was attempting to perform his
duties in a manner prohibited by the
rules of the company in making a fly-
ing switch; that he thus chose an un-
safe method for doing his work; and
for that reason he assumed all the
risks incident thereto. The rules of-
fered in evidence permit the making
of a flying switch when necessary.
The determination of when it becomes
necessary must, in the nature of things,
be left largely to the judgment of the
employees. But, if it should be said
in this instance that incorporating the
car into the train by means of a flying
switch was not necessary, there is still
another complete answer to appellee’s
contention. The injury sustained by
Carter was not necessarily a result of
making a flying switch. He was struck
by an open door; and this might have
occurred had the switching been done
in the usual manner. The car was at
the time rolling slowing [slowly] down
the track, no faster, probably, than it

Fed Act—11

shoved by the engine in the ordinary
way. Louisville, etc. R. Co. v. Pear-
son, 97 Ala. 211, 12 So. 176. The fact
that Carter was injured while making
a running switch in violation of the
rules would be no defense unless it be
shown that that method of doing the
work proximately caused his injury.
In this instance, the court could not
assume, as a matter of law, that it did.”
Carter uv. Kansas, etc, R. Co. (Tex.
Civ. App.), 155 S. W. 638, 643.

42. Seaboard, etc., Railway v. Hor-
ton 239 U. S. 595, 36 S. Ct. 180.

43. Great Northern R. Co. v. Wiles
(U. S.), 36 S. Ct. 406, reversing 125
Minn. 348, 147 N. W. 427.

44, Contributory negligence as mat-
ter of law.—Doichinoff v. Chicago, etc.,
R. Co. (Mont.), 154 Pac. 924.

45. Same— Violation of rules. —
United States—Pennsylvania Co. vw.
Sheeley, 137 C. C. A. 471, 221 Fed. 901;
New York, etc., R. Co. v. Niebel, 131
C. C. A. 248, 214 Fed. 952.

Michigan—Holmberg v. Lake Shore,
etc., R. Co. (Mich.), 155 N. W. 504.

Oregon—Oberlin v. Oregon-Wash-
ington R., etc., Co., 71 Ore. 177, 142
Pac. 554; Pfeiffer v. Oregon-Washing-
FEDERAL EMPLOYERS LIABILITY ACT. 162

§ 67

assumed risk. So if a train is pulled in two, due to a drawbar breaking,
a rear brakeman is guilty of negligence barring a recovery, when he fails,
as required by the rules of the company, to go back and protect his train.47
But in determining whether an employee has violated a rule made for his
guidance, making him guilty of contributory negligence, it should be so con-
strued as to admit of performance when considered in connection with other
rules and the duties of the employee.*8

However, a violation may be excused by showing the acquiescence of the
company in the violation so long as to deem the rule abrogated ;#9 or a failure
of duty on the part of the master may render a compliance impossible ; 5° or

ton R., etc., Co., 74 Ore. 307, 144 Pac.
762.

A fireman was held to be guilty of
contributory negligence in violating a
rule of the company requiring his co-
operation with the engineer in observ-
ing and obeying signals. That on ob-
serving a signal being passed and no
attention paid to the warning given
thereby, he could not assume that it
had been changed since he called the
engineer’s attention to it, but that it
was his duty to find out why it was
not observed and to take some action
tending to insure that it should be.
Pennsylvania Co. v. Sheeley, 137 C. C.
A. 471, 221 Fed. 901.

Instructing the jury that if the plain-
tiff got off his engine while a switch-
ing movement was being made he vio-
lated one of the rules, and if he could
have avoided the injury by obeying
said rule, then he was guilty of negli-
gence, as a matter of law, was as fav-
orable to the defendant as could be
reasonably expected. Pfeiffer v. Ore-
gon-Washington R., etc., Co., 74 Ore.
307, 144 Pac. 762, 765.

46. Boldt v. Pennsylvania R. Co., 134
C. C. A. 175, 218 Fed: 367; Oberlin v.
Oregon-Washington R., etc. Co., 71
Ore. 177, 142 Pac. 554. See Kansas,
etc., R. Co. v. Miller (Ark.), 175 S. W.
1164, 1167, where violation of a rule,
which if obeyed would have charged
the employee with knowledge, is re-
ferred to as assumption of risk.

47. Great Northern R. Co. v. Wiles
(U. S.), 36 S. Ct. 406. See, also, Hull
v. Virginian R. Co. (W. Va.), 88 S.
E. 1060.

_The failure of an engineer to give a
signal to a rear brakeman to go back
and protect the train as required by
the rules of the company would not
be sufficient to excuse a brakeman
from performing that duty when it
was required of him by another rule
of the company without waiting for
signals or instructions. New York,

etc, R. Co. v. Niebel, 131 C. C. A.
248, 214 Fed. 952.

48. Same—Construction to be placed
on rules.—Culp v. Virginian R. Co. (W.
Va.), 87 S. E. 187.

As a railroad may only promulgate
reasonable rules for the conduct of its
employees such a construction will be
given them when considered to de-
termine the contributory negligence of
an employee, rather than one which
is unreasonable. Southern R. Co. v.
Hill, 139 Ga. 549, 77 S. E. 803.

49. Excuses for violation of rules.—
St. Louis, etc., R. Co. v. Sharp (Ark.),
171 S. W. 95; Missouri, etc., R. Co. v.
Rentz (Tex. Civ. App.), 162 S. W. 959,
writ of error denied in 163 S. W. xv,
no op.; Texarkana, etc, R. Co. ».
Casey (Tex. Civ. App.), 172 S. W. 729.

Plaintiff's intestate may have failed
to observe a rule prohibiting the run-
ning of trains on main lines against the
current of traffic, under such circum-
stances that the court could not de-
clare his nonobservance negligence, as
a matter of law. There was evidence
going to show that it was proper and
necessary to try out, break in, or test
engines before putting them into reg-
ular use after they had been sent to
the shop for repair. If this test was
customarily made by running engines
back and forth on one of the main
lines, and this was a nightly occur-
rence, as the evidence tended to show,
the jury may have inferred that de-
fendant was informed of the practice
and concurred in it as a reasonable and
prudent manner of performing such
duties. In that event, the jury may
have found that the rule was waived,
so that a failure to observe it, without
more, did not constitute negligence.
Louisville, etc, R. Co. v. Fleming
(Ala.), 69 So. 125, 129.

50. Burho v. Minneapolis, etc, R.
Co., 121 Minn. 326, 141 N. W. 300. See
also, Sandidge v. Atchison, etc, R.
Co., 113 C. C. A. 653, 193 Fed. 867.

Disobedience of a rule of the com-
163 CONTRIBUTORY NEGLIGENCE. § 67
the rule may not be applicable to the particular case ; 5! or a compliance would
not have averted the injury.52 In Anest v. Columbia, etc., R. Co.®? an ac-
tion was brought for the death of a car inspector who was run down by an
engine while inspecting the defendant’s main line track. The case was tried by
the court which found that the deceased was free from contributory negli-
gence but on appeal the supreme ceurt reviewing the facts held that under
the rules of the company and the care required for his self-preservation, it
was his duty to discover an approaching train at the earliest possible mo-
ment so as to avoid injury. The evidence showing that the train could have
been discovered prior to the time when he first attempted to remove the
hand car from the track, that he was guilty of contributory negligence at
least equal to that of the defendant’s employees in failing to discover him.
And as an employee is presumed by law to have acted with ordinary care
while engaged in the work of switching to protect himself from being thrown
from a car from the usual and ordinary force incident to such work, and
which he should have reasonably anticipated, in the absence of: testimony
rebutting this presumption, the question should not be submitted to the
jury.>4
Contributory negligence is generally a question of fact to be determined

by the jury.65 Thus whether an employee used due care in jumping from
an engine under circumstances showing an emergency;5® or in failing ,
to stop his train on seeing workmen repairing a track;57 or in violat-

pany forbidding employees going be-
tween moving cars to effect a coupling,
would not make an employee guilty of
contributory negligence, when owing
to a failure of the automatic coupler
to work it was necessary to go in front
of a car to open a knuckle so it would
couple. Burho v. Minneapolis, etc., R.
Co., 121 Minn. 326, 141 N. W. 300.

51. Pelton wv. Illinois Cent. R. Co.
(Iowa), 150 N. W. 236.

52. Niles v. Central Vermont R. Co.,
87 Vt. 356, 89 Atl. 629.

Plaintiff held not to be guilty of con-
tributory negligence by failure to
throw out fusees as a signal to a train
which -he knew was following him,
when the circumstances were such that
the rules of the company did not re-
quire them to be thrown and one that
he did throw was so obscured from the
engineer by the leaking steam of the
following engine that he did not see
it, but it was still burning after the
train had passed over it. Niles v. Cen-
tral Vermont R. Co., 87 Vt. 356, 89 Atl.
629.

58. (Wash.), 154 Pac. 1100.

54. On failure to rebut presumption
of due care.—Ft. Worth, etc., R. Co. v.
Stalcup (Tex. Civ. App.), 167 S. W.

279, 285, writ of error denied in 170 S.
W. xviii, no op.

55. Contributory negligence as a
question for the jury—Unmited States.—
Johnson v, Great Northern R. Co., 102
C. C. A. 89, 178 Fed. 643, 648, 30 L. R.
A., N. S., 990; Sandidge v. Atchison,
etc., R. Co., 113 C. C. A. 653, 193 Fed.
867; Pennsylvania R. Co. v. Goughnour,
126 C. C. A. 39, 208 Fed. 961; Smith v.
Atlantic, etc., R. Co. 127 C. C. A. 311,
210 Fed. 761; Erie R. Co. v. Jacobus,
137 C. C. A. 151, 221 Fed. 335; Illinois
Cent. R. Co. v. Stewart (C. C. A.), 223
Fed. 30.

Minnesota.—Burho v. Minneapolis,
etc., R. Co., 121 Minn. 326, 141 N. W.
300.

Oregon.—Pfeiffer v. Oregon-Wash-
ington R., etc., Co., 74 Ore. 307, 144
Pac. 762.

Texas.—Missouri, etc, R. Co. v.
Rentz (Tex. Civ. App.), 162 S. W.
959, writ of error denied in 163 S. W.
Xv, no op.; Carter v. Kansas, etc., R.
Co. (Tex. Civ. App.), 155 S. W. 638.

56. Charleston, etc., R. Co. v. Brown,
13 Ga. App. 744, 79 S. E. 932.

57. Chicago, etc., R. Co. v. McCor-
mick, 118 C. C. A. 527, 200 Fed. 375.
45 L. R. A, N. S., 539.
§ 67

FEDERAL EMPLOYERS’ LIABILITY ACT.

164

ing a rule;58 or in going between cars; >® or into a roundhouse without a
light ; ®° or in failing to keep an outlook when riding a railroad tricycle on a

58. Sandidge v. Atchison, etc. R.
Co., 113 C. C. A. 653, 193 Fed. 867;
Illinois Cent. R. Co. v. Stewart (C. C.
A.), 223 Fed. 30; Texarkana, etc., R.
Co. v. Casey (Tex. Civ. App.), 172 5.
W. 729. :

“Tt is next claimed that the trial
court erred in refusing to direct a ver-
dict in favor of plaintiff in error, for
the reason that the evidence showed
that the deceased was guilty of con-
tributory negligence. * * * It is
claimed that the deceased under rules
was bound to protect, himself by either
a flag or a blue light. Considering,
however, the act of negligence which
was submitted to the jury, and the
further fact that the cars moved by
gravity at the time they caught de-
ceased and fatally injured him, it is
apparent that a flag or a light would
have been no protection against the
force of gravity, which neither sees
nor hears. As the three cars were
placed upon the track before the de-
ceased commenced to. repair the defec-
tive coupling, no flag. or light would
be expected at that time. We see no
error upon this point.” Illinois Cent.
R. Co. v. Stewart (C. C. A.), 223 Fed.
30, 32.

“We are also of the opinion that it
can not be said as a matter of law that
Casey was guilty of contributory neg-
ligence in going between the cars at
the time he did. Assuming that the
rules hereinbefore quoted required in-
spectors to put up signals when per-
forming their work, the evidence in this
record shows that a custom had pre-
vailed for a considerable length of
time in the yards of the appellant not
to apply that rule to ‘pick-ups’ such
as the coal cars were in this instance.
The disregard of the rule in that par-
ticular was of such long standing and
was so well known to the switching
crew that the omission of that duty
by Casey and his helper would not
constitute contributory negligence as
a matter of law; and that issue be-
comes one of fact which the jury had
a right to determine as it did.” Tex-
arkana, etc., R. Co. v. Casey (Tex. Civ.
App.), 172 S. W. 729, 733.

59. United States—Grand Trunk, etc.,
R. Co. v. Lindsay, 233 U. S. 42, 58
L. Fd. 838, 34 S. Ct. 581, Ann. Cas.
1914C, 168; Chicago, etc. R. Co. vw.
Brown, 229 U. S. 317, 57 L. Ed. 1204,
33 S. Ct. 840.

Arkansas—St. Louis, etc., R. Co. v.
Anderson (Ark.), 173 S. W. 834.

New Jersey—Parker v. Atlantic City
R. Co. (N. J.), 93 Ath 574.

“Nor was the company entitled to
the direction of a verdict upon the
ground that the plaintiff might have
prevented the injury had he acted oth-
erwise than he did by going between
the cars to shove the drawhead over
so that the coupling could be effected,
because, in that situation, some judg-
ment was necessary, and whether he
should have selected some other mode
of action or have refrained from act-
ing in the emergency that confronted
him is at least debatable and raised a
question for the jury. This rule is laid
down by the United States Supreme
Court in Chicago, Rock Island & Pa-
cific Ry. Co. v. Brown, supra (Mr.
Justice McKenna writing the opinion),
wherein it was held, at page 317 of
229 U. S., at page 840 of 33 Sup. Ct.
(57 L. Ed. 1204):

“A switchman, reaching in between
slowly moving cars to remove a coup-
ling pin after repeated unsuccessful at-
tempts to operate the automatic coup-
ler, is not, as a matter of law, guilty
of such contributory negligence as de-
feats his right to recover for the re-
sulting injuries, because he did not an-
ticipate that his foot might slip and
catch as it did in an unblocked guard
rail of which he had, or could be
charged with, knowledge.’” Parker v.
Atlantic City R. Co. (N. J.), 93 Atl.
574,

60. Hawkins v. St. Louis, etc, R.
Co. (Mo. App.), 174 S. W. 129.

In an action by an employee of a
roundhouse, for injuries received by
stumbling over a jack on the floor he
can not be held guilty of contributory
negligence as a matter of law by fail-
ing to have a lantern. In view of the
fact that it was “daylight enough out-
side to see without a lantern;” and

‘the fact that the lanterns were not

coal oil lamps and did not give a
bright light and were big at the bot-
tom so as to exclude the light some-
what from the floor, and, according
to one witness, were not used to work
with but merely to keep people from
running over each other; and the fact
that a hostler, went entirely around
the engine with his lantern and did
not see the jack; and the fact that the
jack was black like the floor so that
after the injury workmen had to hunt
for it with a torch; and the fact that
plaintiff did not know of its presence
on the floor—the question of con-
165 CONTRIBUTORY NEGLIGENCE.

§ 67

track ; ®1 or in the manner of riding a car ; ©? or in standing on the track when
straightening a flue auger;®? or in permitting a high tension electric
switch to make contact ; ** or in failing to discover a partially open switch ; ®
or adopting one method when a safer one was open to him,®® so as to be
guilty of contributory negligence should be submitted to the jury. An em-
ployee is not guilty of contributory negligence as a matter of law by con-
tinuing in his employment in the face of a constant, but not an imminent
danger, where he complained to the proper party to remedy the defect, was
promised that it would bbe repaired, and directed or requested to continue
at work; as he could place a reasonable reliance upon the employer’s promise
to repair, before he would be guilty of contributory negligence, which was a
question for the jury.%7

However, in all cases where it is applicable to reduce damages, and
whether found by the court or left to the jury, it is for the jury to determine
the amount that the damages are to be reduced on account of the contribu-
tory negligence.*8 In the case of injury resulting in death, therefore, the jury

tributory negligence was one for the
jury. Hawkins v. St. Louis, etc., R.
Co. (Mo. App.), 174 S. W. 129, 135.

61. Grow v. Oregon, etc., R. Co., 44
Utah 160, 138 Pac. 398, 401, Ann. Cas.
1915B, 481.

62. Bolch v. Chicago, etc., ‘R. Co.
(Wash.), 155 Pac. 422. See also, Ar-
izona Eastern R. Co. v. Bryan (Ariz.),
157 Pac. 376.

63. Alabama, etc., R. Co. v. Skotzy
(Ala.), 71 So. 335.

64, Millette v. New York, etc. R.
Co., 169 App. Div. 126, 154 N. Y. S.
792,

65. Basham v. Chicago, etc., R. Co.
(Iowa), 154 N. W. 1019.

66. Sweet v. Chicago, etc. R. Co.,
157 Wis. 400, 147 N. W. 1054.

An employee assisting to pole a car,
which operation consisted in the plac-
ing of a pole between an engine and a
car so that the latter would be pushed
by the former, can not be said to be
guilty of contributory negligence in
failing to stop the engine when the
pole was in position and move out of
the way when the operations were
being directed by a switch foreman
under whose orders the employee
worked. Neither would he be guilty
of contributory negligence because he
took his place on the running board
of the engine instead of a more dan-
gerous position on the ground be-
tween the engine and the car. Sweet
v. Chicago, etc., R. Co., 157 Wis. 400,
147 N. W. 1054.

Contributory negligence of an em-
ployee in walking in the middle of the
track in order to reach his engine is
for the jury when there is testimony

that he took such a course to avoid a
frozen place around a water crane.
Huxoll v. Union Pac. R. Co. (Neb.),
155 N. W. 900.

67. Continuance in employment un-
der promise of repair.—Seaboard, etc.,
Railway v. Horton, 239 U. S. 595, 36
S. Ct. 180.

68. As reduction of damages always
for jury —United States.—Illinois Cent.
R. Co. v. Nelson, 122 C. C. A. 258, 203
Fed. 956; Louisville, etc, R. Co. v.
Lankford, 126 C. C. A. 247, 209 Fed.
321.

Kentucky.—Louisville, etc., R. Co. v.
Heinig, 162 Ky. 14, 171 S. W. 853.

Minnesota. — Denoyer v. Railway
Transfer Co., 121 Minn. 269, 141 N.
W. 175, 176.

Oregon.—Pfeiffer «v. Oregon-Wash-
ington R., etc. Co., 74 Ore. 307, 144
Pac. 762, 766.

Washington—Fogarty v.” Northern
Pac. R. Co., 74 Wash. 397, 133 Pac.
609, 610.

“Contributory negligence being only
a partial defense, it is then necessary,
in a case otherwise proper, to submit
the matter of contributory negligence
of the plaintiff to the jury in order
that the same may be compared with
the negligence of the defendant and
the damages apportioned as the neg-
ligence of each caused the injury, and
diminished accordingly.” Pfeiffer v.
Oregon-Washington R., etc., Co., 74
Ore. 307, 144 Pac. 762, 766.

“Under § 3 of the act, contributory
negligence is not a bar to recovery,
but the damages are to be diminished
by the jury in proportion to the
amount of negligence attributable to
§ 67 FEDERAL EMPLOYERS LIABILITY ACT. 166

should first find the amount of damages to which the decedent’s next of kin
would have been entitled in the absence of any contributory negligence on his
part; and they should then abate that sum by the amount which they shall
find represented the decedent’s proportionate contributory negligence.® But
where the injury is caused by the violation of a statutory duty, the sole ques-
tion, left open, is whether such violation contributed to the injury; or, whether
the negligent conduct of the employee was the sole cause of the injury; if the
latter is found the employer is not liable. But when the violation of such
statutory duty by the employer was “in whole or in part,” or a contributive
cause of the injury then the employee’s negligence is eliminated, and the

jury only considers the amount of damages.7°

the employee. It will thus be seen
that in cases under this act it becomes
a question of fact for a jury to appor-
tion the negligence of the employer
and employee, and to’render a ver-
dict in such an amount as they shall
fairly determine to represent the true
apportionment.” Fogarty v. Northern
Pac. R. Co., 74 Wash. 397, 133 Pac.
609, 610.

“The court instructed the jury that
it was for them to pass upon the ex-
istence of such negligence, and that
if they found the same they should
prorate the amount of the damages be-
tween the parties in proportion to
their negligence, which latter proposi-
tion is unquestionably the rule under
the federal act.” Denoyer v. Railway
Transfer Co., 121 Minn. 269, 141 N.
W. 175, 176.

“Instead of leaving the question of
decedent’s contributory negligence to
the jury, the court will tell the jury

that decedent was guilty of contribu-
tory negligence, and at the same time
direct the jury in conformity to the
rule laid down in Norfolk, etc., R. Co. v.
Earnest, 229 U. S. 114, 57 L. Ed. 1096,
33 S. Ct. 654, Ann. Cas. 1914C, 172,
how to apportion the damages in the
event they believe that defendant’s
conductor was negligent in failing to
stop the train.” Louisville, etc., R. Co.
v. Heinig, 162 Ky. 14, 171 S. W. 853,
858.

69. How jury to proceed in dimin-
ishing damages.—Louisville, etc. R.
Co. v.” Wene, 121 C. C. A. 245, 202
Fed. 887, 891. See post, “Apportion-
ment or Diminution of Damages in
Case of Contributory Negligence,”
§ 188.

70. Smith v. Atlantic, etc., R. Co.,
127 C. C. A. 311, 210 Fed. 761; Spo-
kane, etc., R. Co. v. Campbell (U. S.),
36 S. Ct. 583:
CHAPTER XI.

ASSUMPTION OF RISK.

. Distinguished from Contributory Negligence, § 68.

. Available When No Statute Violated, § 69.

. Superseding State Common Law Rule, § 70.

4. Section Refers to Federal Statutes, § 71.

5. Extent and Application of Doctrine, §§ 72-75.

‘a. Statement of Rule, § 72.

b. Effect of Knowledge by Employee, § 73.

c. Assumed Risk of One of Two Concurring Causes, § 74.
d. As Question of Law or Fact, § 75.

w ne

§ 68. Distinguished from Contributory Negligence.—By 8 4 of the
Act of 1908, it is provided that: “In any action brought against any com-
mon 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 employees, such employee
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 employees contributed to the injury or death of such employee.”

The defenses of assumed risk and contributory negligence have frequently
been referred to and discussed by courts without making any discrimination
between them. This is doubtless due to the fact that both have heretofore
been treated in law as complete defenses in suits for personal injuries, and
there was no necessity for observing the technical legal distinction. And
while of little consequence when both led to the same result, it becomes im-
portant in actions founded upon the federal act, which in ordinary cases
recognized assumption of risk as a complete bar to the action, while con-
tributory negligence merely mitigates the damages.1 Nor is it to be sup-
posed that congress in enacting the statute was ignorant of the distinction,
because it is only through a distinction between contributory negligence and
assumption of risk being recognized, that any, but a contradictory, meaning
would be expressed by §§ 3 and 4.2

1. Distinction immaterial when ei-
ther was bar to action—Seaboard, etc.,
Railway v. Horton, 239 U. S. 595, 36
S. Ct. 180, 183.

2. Distinction recognized by con-
gress—Fish v. Chicago, etc. R. Co.,
263 Mo. 106, 172 S. W. 340. See Bar-
ker v. Kansas, etc, R. Co. 94 Kan.
176, 146 Pac. 358.

“And, taking §§ 3 and 4 together,
there is no doubt that congress recog-
nized the distinction between contrib-
utory negligence and assumption of
risk; for, while it is declared that nei-
ther of these shall avail the carrier in

167

cases where the violation of a statute
has contributed to the injury or death
of the employee, there is, with respect
to cases not in this category, a limi-
tation upon the effect that is to be
given to contributory negligence,
while no corresponding limitation is
imposed upon the defense of assump-
tion of risk—perhaps none was
deemed feasible.’ Seaboard Air Line
Railway v. Horton, 233 U. S. 492, 58
L. Ed. 1062, 34 S. Ct. 635, 639, L. R.
A. 1915C, 1, Ann. Cas. 1915B, 475.
“It was borne in mind by congress
when it enacted the Federal Employ-
FEDERAL EMPLOYERS LIABILITY ACT. 168

§ 68

As in cases under the safety appliance act in which assumption of risk
is abolished, an employee was not to be deprived of a recovery by calling
his conduct contributory negligence,? so in actions under this act the de-
fendant is not to be deprived of a defense by calling assumption of risk,
contributory negligence. So the Supreme Court of the United States, be-
fore considering the questions for which a writ of error was granted, dis-
tinguishes the two, where in Seaboard Air Line Railway v. Horton, 233 U.
S. 492, 58 L. Ed. 1062, 34 S. Ct. 635, 639, L. R. A. 1915C, 1, Ann. Cas:
1915B, 475, the court said:

“The distinction, although simple, is sometimes overlooked. Contributory
negligence involves the notion of some fault or breach of duty on the
part of the employee; 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 employees in similar circum-
stances 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 employee. The risks may be present,
notwithstanding the exercise of all reasonable care on his part. Some
employments are necessarily fraught with danger to the workman,—
danger that must be and is confronted in the line of his duty. Such
dangers as are normally and necessarily incident to the occupation are
presumably taken into the account in fixing the rate of wages. Anda
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 nat-
urally 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-
ployee 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 circum-
stances would have observed and appreciated them. These distinctions
have been recognized and applied in numerous decisions of this court.
* * * When the employee 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 repre-
sentative an assurance that the defect will be remedied, the employee
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 performance, the employee, relying upon
the promise, does not assume the risk unless at least the danger be so
imminent that no ordinarily prudent man under the circumstances would
rely upon such promise.’

ers’ Act, for it abolished the bar of have disposed of the other.” Fish ».

contributory negligence, and left only
a limited application of the doctrine
of assumption of risk, and this evi-
dently because of the essential differ-
ence between the two, for, if they were
identical, the abrogation of one would

Chicago, etc., R. Co., 263 Mo. 106, 172
S. W. 340, 346.
8. Distinguished by courts.—See
discussion under Safety Appliance Act.
4. Other cases noting the distinction
are Charleston, etc, R. Co. vu. Syl-
169 ASSUMPTION OF RISK. § 68

This case was reversed and remanded for a failure to charge that if the
plaintiff with knowledge that the water gauge of a locomotive boiler was not
provided with a guard glass and the condition was open and obvious, and
was fully known to the plaintiff and he continued to use such gauge, with
such knowledge and without objection, and that he knew the risk incident
thereto, then he voluntarily assumed the risk and could not recover, but
charged that the same facts constituted contributory negligence.5

Though an employee is said to assume the risk of the consequences re-
sulting from a violation of rules, this is properly contributory negligence.®
And an employee in view of severe weather conditions is guilty of contribu-
tory negligence and does not assume the risk when he fails to protect the
rear of his train by proper signals, though warned by the following engineer
that it was impossible to see the block signals and told to do a good job of
“flagging.” 7 And an employee will be charged with contributory negligence
and not assumption of risk in stepping off a ladder when he stepped, and
was injured by a piece of scrap hose allowed to remain on the floor of a

roundhouse.

Because the danger caused by the presence of the piece of

hose upon the floor as not a danger or a defect permanent in its nature. It
was likely to be picked up by the men defendant had employed for that

vester (Ga. App.), 86 S. E. 275; Fish
v. Chicago, etc., R. Co., 263 Mo. 106,
172 S. W. 340; Trowbridge v. Kansas,
etc. R. Co. (Mo. App.), 179 S. W. 777;
Cross v. Chicago, etc. R. Co. (Mo.
App.), 186 S. W. 1130.

“Assumed risk is founded upon the
knowledge of the employee, either ac-
tual or constructive, of the hazards to
be encountered, and his consent to
take the chance of injury therefrom.
Contributory negligence implies mis-
conduct, the doing of an imprudent
act by the injured party, or his dere-
liction in failing to take a proper pre-
caution for his personal safety. The
doctrine of assumed risk is founded
upon contract, while contributory neg-
ligence is solely a matter of conduct.
1 Labatt on Mas. & Serv., §§ 305, 306,
and notes.” Carter v. Kansas, etc., R.
Co. (Tex. Civ. App.), 155 S. W. 638,
643.

“Assumption of risk” is a doctrine
wholly distinguishable from that of
“contributory negligence,’ which is a
breach of a legal duty imposed by law
upon the servant, however unwilling
or protesting he may be, while as-
sumption of risk is not a duty, but is
merely voluntary on the part of the
servant. Southern R. Co. wv. Jacobs,
116 Va. 189, 81 S. E. 99.

“Tf one sees an approaching train
and does not get out of the way, or
fails to look and see it when due care
required him to look and see it, and

is run over and injured, he is guilty of
negligence; but, it is a confusion of
terms to say he assumed the risk.”
Grow v. Oregon, etc., R. Co., 44 Utah
160, 138 Pac. 398, 401, Ann. Cas. 1915B,
481.

Assumption of risk is not shown
where a railroad engineer proceeding
with his engine on a lead track, ap-
proached or was traversing a railroad
yard, noticing some loaded cars on the
opposite side, visible to him but be-
coming more and more shut off as the
train proceeded, inquired of the fire-
man who was on the same side as the
cars and in full view, whether they
were clear of the track, and was told
that they were. Again later asking
the fireman if they were clear, he re-
plied that they were not, and jumped
from the engine. The engineer then
shut off the power and stepped to the
left side of the engine where he was
injured, and which caused his death.
This shows contributory negligence
but not assumption of risk. Yazoo,
etc, R. Co. v. Wright, 235 U. S. 376,
59 L. Ed. 277, 35 S. Ct. 130.

5. Seaboard Air Line Railway v.
Horton, 233 U. S. 492, 58 L. Ed. 1062,
34 S. Ct. 635, L. R. A. 1915C, 1, Ann.
Cas. 1915B, 475.

6. See ante, “As Question of Law or
Fact,” § 67.

7 Hadley v. Union Pac. R. Co.
(Neb.), 156 N. W. 765.
§§ 68-69 FEDERAL EMPLOYERS’ LIABILITY ACT. 170

purpose whose duty it was to pick up things from the floor every day.
And plaintiff's evidence as a whole shows that, while he did know the hose
had been there several days before, and he had seen it several times, yet
it also shows that he did not actually know it was there on the day of the
accident until he stepped on it. Unless, therefore, he was bound to assume
that defendant’s men had continued to negligently leave it there, in violation
of their duty and the regulations of the shop, he did not have actual notice
that it was still there at the time he stepped from the ladder.”

Whether an employee may be charged with assumed risk or contributory
negligence by continuing in his employment in reliance upon a promise to
repair in the presence of a danger so imminent that no reasonably prudent
person would confront it, is a question upon which the courts differ. In
Seaboard, etc., Railroad v. Horton§ the question was not decided, because
it was held that as the court below had charged that it constituted
assumption of risk which was more favorable to defendant than if it had
charged that it was contributory negligence, therefore if error, was one of
which it could not complain.

§ 69. Available When No Statute Violated.—Under this section it
is held that in cases not involving a violation of a statute, a complaining em-
ployee to whom the act applies is not relieved from the operation of the
rule of assumed risk, but the same is left as at common law.? In Seaboard

7a. Cross v. Chicago, etc. R. Co.
(Mo. App.), 186 S. W. 1130.

8. Same—Continuance in employ-
ment on promise to repair.—(U. S.),
36 S. Ct. 180.

9. When available as at common
law.—United States. — Seaboard Air
Line Railway v. Horton, 233 U. S.
492, 503, 58 L. Ed. 1062, 1069, 34 S.
Ct. 635, L. R. A. 1915C, 1, Ann. Cas.
1915B, 475; Toledo, etc., R. Co. vw. Sla-
vin, 236 U. S. 454, 59 L. Ed. 671, 35 S.
Ct. 306, 307; Southern R. Co. v. Crock-
ett, 234 U. S. 725, 58 L. Ed. 1564, 34 S.
Ct. 897; New York, etc., R. Co. v. Viz-
vari, 126 C. C. A. 632, 210 Fed. 118;
Boldt v. Pennsylvania R. Co., 134 C.C. A.
175, 218 Fed. 367; Central, etc., R. Co. v.
Bethune, 124 C. C. A. 528, 206 Fed. 868;
Columbia, etc, R. Co. v. Sauter (C.
C. A.), 223 Fed. 604, 610; Great North-
ern R. Co. v. Knapp (U. S.), 36 S. Ct.
399; Clark v. Erie R. Co. (D. C.), 230
Fed. 478; Baugham v. New York, etc.,
R. Co. (U. §S.), 36 S. Ct. 592; Jacobs
v. Southern R. Co. (U. S.), 36 S. Ct.
588; Chesapeake, etc, R. Co. v. De
Atley (U. S.), 36 S. Ct. 564.

Alabama.—Southern R. Co. v. Peters
(Ala.), 69 So. 611.

Arizona—Guana v. Southern Pac.
Co., 15 Ariz. 413, 139 Pac. 782, 784.

Arkansas.—Kansas, etc., R. Co. v.
Livesay (Ark.), 177 S. W. 875, 876.

Connecticut-—Farley v. New York,
etc, R. Co., 88 Conn. 409, 91 Atl. 650.

Georgia.—Kirbo v. Southern R. Co.,
16 Ga. App. 49, 84 S. E. 491; Bowers
v. Southern R. Co., 10 Ga. App. 367,
73 S. E. 677; Charleston, etc., R. Co.
v. Sylvester (Ga. App.), 86 S. E. 275.

Idaho.—Neil v. Idaho, etc., Railroad,
22 Idaho 74, 125 Pac. 331.

Indiana.—Southern R. Co. v. How-
erton, 182 Ind. 208, 105 N. E. 1025, 106
N. E. 369, reversing 101 N. E. 121;
Cincinnati, etc., R. Co. v. Gross (Ind.
App.), 111 N. E. 653.

Kansas.—Barker v. Kansas, etc., R.
Co., 88 Kan. 767, 129 Pac. 1151, 43 L.
R. A. N. S., 1121; Spinden v. Atchi-
son, etc., R. Co., 95 Kan. 474, 148 Pac.
747,

Kentucky,— Louisville, etc., R. Co. v.
Strange, 156 Ky. 439, 161 S. W. 239;
Louisville, etc., R. Co. v. Heinig, 162
Ky. 14, 171 S. W. 853; Truesdell v.
Chesapeake, etc., R. Co., 159 Ky. 718,
169 S. W. 471; Glenn v. Cincinnati,
etc, R. Co. 157 Ky. 453, 163 S. W.
461; Davis v. Chesapeake, etc., R. Co.,
166 Ky. 490, 179 S. W. 422; Louis-
ville, etc, R. Co. wv. Patrick (Ky.
App.), 180 S. W. 55.

Michigan.—Miller v. Michigan Cent.
R. Co. (Mich.), 152 N. W. 235.
Minnesota..— Marshall wv. Chicago,
171

ASSUMPTION OF RISK.

§ 69

Air Line Railway v. Horton, 233 U. S. 492, 58 L. Ed. 1062, 34 S. Ct. 635,
639, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475, the court said:

“It seems to us that § 4, in eliminating the defense of assumption 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.”

etc., R. Co. (Minn.), 155 N. W. 208.
Missouri—Fish v. Chicago, etc., R.
Co., 263 Mo. 106, 172 S. W. 340.
North Dakotaa—Manson v. Great
Northern R. Co. (N. Dak.), 155 N.
W. 32.
Oklahoma.—St. Louis, etc., R. Co. v.
Snowden (Okla.), 149 Pac. 1083.

_ Oregon—Oberlin v. Oregon-Wash-
ington R., etc, Co., 71 Ore. 177, 142
Pac. 554.

Texas.—Carter v. Kansas, etc, R.
Co. (Tex. Civ. App.), 155 S. W. 638;
Freeman v. Powell (Tex. Civ. App.),
144 S. W. 1033, writ of error denied
in 147 S. W. xv, 106 Tex. 626, no op.;
Ft. Worth, etc. R. Co. v. Copeland
(Tex. Civ. App.), 164 S. W. 857, writ
of error dismissed in 170 S. W. xix,
no op. See, also, Missouri, etc. R.
Co. v. Scott (Tex. Civ. App.), 160 S.
W. 432, writ of error denied in 165
S. W. xvi, no op.; Kansas, etc., R.
Co. v. Hall (Tex. Civ. App.), 152 S.
W. 445.

Virginia—Southern R. Co. v. Jacobs,
116 Va. 189, 81 S. E. 99, affirmed in 36
S. Ct. 588.

West Virginia—Hull v. Virginian
R. Co. (W. Va.), 88 S. E. 1060.

The decision in Wright v. Yazoo,
etc., R. Co. (D. C.), 197 Fed. 94, which
denied the right of assumed risk to the
railroad company, if to the contrary
as it appears to be, was rightly de-
cided as the employee had not in fact
assumed the risk. The case was af-
firmed in 125 C. C. A. 25, 207 Fed. 281;
and this in turn affirmed in 235 U. S.
276, 35 S. Ct. 130.

Notwithstanding “the provisions of
the ‘3d section of the act, which pro-
vides that the contributory negligence
of the employee ‘shall not bar a re-
covery;’ and of the 5th section, which
precludes the carrier from exempting
itself from liability. * * * It is clear,
* * * that the assumption of risk as a
defense is abolished only where the
negligence of the carrier is in violation
of some statute enacted for the safety
of employees. In other cases, there-
fore, it is retained. And such is the
ruling in the Horton Case, made upon
due consideration and analysis of the
statute and those to which it referred.”

Jacobs v. Southern R. Co. (U. S.), 36
S. Ct. 588, 591.

“The jury was instructed in the
present case, in effect, that under the
Employers’ Liability Act of Congress
the defendant would be rendered lia-
ble for injuries resulting from its neg-
ligence, and that to this rule there is
no exception. So it was concluded
that the decedent was chargeable with
the element of danger which his em-
ployment occasioned, and assumed the
risks which were inherent in his em-
ployment and work, but that these
did not comprehend negligence on the
part of the defendant, and that he
would not thereby forego the right to
recover damages caused by negligence
on the part of the defendant. In other
words, the jury was left to infer that,
if the defendant were guilty of any
negligence at all, or any kind of negli-
gence, contributing to the injury, then
the decedent assumed none of the
risks incident to his employment.
Such is not the law, * * * The as-
sumption of risk is eradicated only in
case the employer is negligent in the
violation of some statute enacted for
the safety of employees. In other
negligence the rule remains as at com-
mon law.” Columbia, etc. R. Co. wv.
Sauter (C. C. A.), 223 Fed. 604, 610.

“There is nothing to indicate an in-
tention to hold the carrier liable or-
dinarily for an injury arising out of a
risk assumed by the employee.” Bar-
ker v. Kansas, etc, R. Co., 94 Kan.
176, 146 Pac. 358.

“The action was brought under the
interstate commerce act, and _ while
that act provides that contributory
negligence shall not bar a recovery,
but only mitigate the damages, it
makes no change in the rule as to as-
sumed risks except as to the safety
of appliances provided for by the act
of congress. As there is no provision
in the act as to any appliances that are
here in question, the case must be de-
termined under the general rule as to
the assumption of risks by servants.”
Glenn zv. Cincinnati, etc., R. Co., 157
Ky. 453, 163 S. W. 461, 462.

“There being no federal statute re-
quiring railroads to use the block-signal
system, the common-law doctrine of
§ 69

FEDERAL EMPLOYERS’ LIABILITY ACT.

172

The interpretation of the statute here declared is reaffirmed in the case of
Southern R. Co. v. Crockett, 234 U. S. 725, 730, 58 L. Ed. 1564, 34 S. Ct.

897, 899, where the court says:

“Upon the merits, we of course sustain the contention that by the Em-
ployers’ 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 employees contributed to the injury or death

a9

of such employee.

However, where there is a violation by the carrier of some statute en-
acted for the safety of employees and such violation has contributed to the
injury or death, assumption of risk has no application.1° Thus it has been
held not to be available when the negligence of the defendant is predicated
upon the federal safety appliance act,!! though that act itself abolishes the

defense.12

But an employee must come within the protection of the statute violated
in order to preclude the defense and an employee engaged in feeding and

assumed risk applies.” Louisville,
etc., R. Co. v. Heinig, 162 Ky. 14, 171
S. W. 853, 857.

Under the act of 1906, where the
complaint charges negligence on the
part of the defendant in its business
as a common carrier of interstate and
foreign commerce by operating an un-
guarded saw in its carshops, and that
said saw by reason of its defective
condition caused a piece of timber to
be hurled violently, causing the in-
jury, it is no defense that the un-
boxed saw and the danger of its op-
eration were obvious, and known to
plaintiff, and that by voluntarily ac-
cepting employment in the shop he
assumed the risk of any injury which
might happen from its operation.
Malloy v. Northern Pac. R. Co. (C.
C.), 151 Fed. 1019.

And also under the act of 1906, it
is held that the relation being con-
tractual, the defense was abolished by
§ 3 of that act. Philadelphia, etc. R.
Co. v. Tucker, 35 App. D. C. 123.

10. When not available—Statute
violated. —United States—Johnson  v.
Great Northern R. Co., 102 C. C. A.
89, 178 Fed. 643, 30 L. R. A, N. S,
990.

Kansas—Thornbro v. Kansas, etc.,
R. Co., 91 Kan. 684, 139 Pac. 410, Ann.
Cas. 1915D, 314; S. C., 92 Kan. 681,
142 Pac. 250.

Minnesotaa—La Mere v. Railway
Transfer Co., 125 Minn. 159, 145 N.
W. 1068, Ann. Cas. 1915C, 667.

Nebraska —Huxoll v. Union Pac. R.
Co. (Neb.), 155 N. W. 900.

Texas—Missouri, etc, R. Co. v.

“1908.”

Barrington (Tex. Civ. App.), 173 S.
W. 595.

11. United ‘States——Johnson v. Great
Northern R. Co., 102 C. C. A. 89, 178
Fed. 643, 30 L. R. A., N. S., 990; Clark
v. Erie R. Co. (D. C.), 230 Fed. 478,
483.

Kansas.—Thornbro v. Kansas, etc.,
R. Co., 91 Kan. 684, 139 Pac. 410, Ann.
Cas. 1915D, 314; S. C., 92 Kan. 681,
142 Pac. 250.

Kentucky,—Nashville, etc. R. Co. v.
Henry, 158 Ky. 88, 164 S. W. 310.

Minnesota——Ahrens v. Chicago, etc.,
R. Co., 121 Minn. 335, 141 N. W. 297,
298. See, also, La Mere'v. Railway
Transfer Co., 125 Minn. 159, 145 N.
W. 1068, Ann. Cas. 1915C, 667.

North Carolina—Sears v. Atlantic,
etc, R. Co, 169 N. C. 446, 86 S. E.

176.

Texas.—Missouri, etc, R. Co. v.
Barrington (Tex. Civ. App.), 173 S.
W. 595; San Antonio, etc. R. Co. v.
Wagner (Tex. Civ. App.), 166 S. W. 24,
affirmed in 36 S. Ct. 626.

12. La Mere v. Railway Transfer
Co., 125 Minn. 159, 145 N. W. 1068,
Ann. Cas. 1915C, 667; Montgomery v.
Carolina, etc., R. Co. 163 N. C. 59%,
80 S. E. 83.

“Tf the injury came from the viola-
tion of the safety appliance act as-
sumption of risks is not a defense, for
it is excluded by § 8 of the safety ap-
pliance act and is apparently abro-
gated by the provisions of the Em-
ployers’ Liability Act of April 22,
La Mere v. Railway Transfer
Co., 125 Minn. 159, 145 N. W. 1068,
1072, Ann. Cas. 1915C, 667.
173 ASSUMPTION OF RISK. §§ 69-70
watering cattle en route is not within the hours of service act so as to pre-

clude the defense of assumed risk in an action to recover for his injury.!*

Nor is it to be understood that the simple violation of the carrier of a fed-
eral act operates of itself to abolish contributory negligence and assumption
of risk in actions under the federal act. As in order to render the master
liable the violation must have been the proximate cause of the injury, so
to abolish these defenses the violation must have contributed to the injury.14
Thus where an employee who was on duty over time, while about to do
some oiling according to directions, fell from the running board of the pilot
and his leg was cut off, and though there was evidence of negligence, the de-
fendant having pleaded contributory negligence and assumption of risk, it is
error for the court to instruct the jury that if they found the defendant was
guilty of violating the hours of service act, “then and in that event you will
entirely disregard defendant’s pleas of contributory negligence and assumed
risk, as then the plaintiff can in no way be held to have been guilty of con-
tributory negligence in going upon the pilot while the engine was moving,
nor can he in any way be held to have assumed any of the risks ordinarily
incident to his work or even open and apparent to him at the time he was
hurt.” 15 In Atchison, etc., R. Co. v. Swearingen, 239 U.S. 339, 36 S. Ct.
121, 122, the court said:

“This instruction was excepted to in the presence of the jury, but the
charge. was not modified. It was the one instruction specifically di-
rected to the matter of overtime. The natural understanding of it by
people untrained in the law, if not by everybody, would be that the un-
justified retention of the plaintiff at his work for more than sixteen
hours would make the defendant liable whether the retention contributed
to the injury or not. The statute that excludes the defenses of con-
tributory negligence and assumption of risk in such a case is not the
hours of labor act itself, but the subsequent Employers’ Liability Act.
* * * The latter has that operation only when the breach of the
law contributes to the injury. * * * We do not think it possible to
read the absolute language of the instruction as implicitly limited to
such a case.”

§ 70. Superseding State Common Law Rule.—This section is con-
trolling with respect to any different or contrary state rule, in cases in which
the federal act applies, whether such state rule be common law or statu-
tory.16 In Seaboard Air Line Railway v. Horton, 233 U. S. 492, 58 L. Ed.

mon law rule existing in state.—

18. Same—Employee must come : :
United States—Seaboard Air Line

within statute violated—Schweig v.

Chicago, etc., R. Co., 132 C. C. A. 660,
216 Fed. 750.

14. Violation of statute must be
proximate cause of injury.—Atchison,
etc. R. Co. v. Swearingen, 239 U. 5.
339, 36 S. Ct. 121.

15. Atchison, etc., R. Co. v. Swear-
ingen, 239 U. S. 339, 36 S. Ct. 121.

16. Supersedes statutory or com-

Railway v. Horton, 233 U. S. 492, 58
L. Ed. 1062, 34 S. Ct. 635, L. R. A.
1915C, 1, Ann. Cas. 1915B, 475.

South Carolina—Bramlett v. South-
ern R. Co., 98 S. C. 319, 82 S. E. 501.

Texas—Freeman v. Powell (Tex.
Civ. App.), 144 S. W. 1033, writ, of
error denied in 147 S. W. xv, 106 Tex.
626, no op.
§ 70 FEDERAL EMPLOYERS’ LIABILITY ACT. 174

1062, 34 S. Ct. 635, 641, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475, the court
said:

“The trial court, while recognizing that the act of congress applied so
far as its terms extended, and that by its terms the employee is not to
be held to have assumed the risk in any case where the violation by the
carrier of a statute enacted for the safety of employees contributed te
the injury, at the same time held that, since no statute had been en-
acted covering such an appliance as the glass water gauge, the rights
of plaintiff were such as he would have under the state law. * * *
It is true that such an appliance as the water gauge and guard glass in
question is not covered by the provisions of the safety appliance act,
or any other law passed by congress for the safety of employees, in
force at the time this action arose. But the necessary result of this is
not to leave the employer responsible for the consequences of any de-
fect in such an appliance, excluding the common-law rule as to assump-
tion of risk, but to leave the matter in this respect open to the ordinary
application of the common-law rule. The adoption of the opposite
view would in effect leave the several state laws, and not the act of con-
gress, to control the subject-matter.”

It would seem that, when the court said the act left the matter in respect
to assumption of risk “open to the ordinary application of the common-law
rule,” it meant the common-law rule as enforced by that court and the other
federal courts following it.17 It is true, with the exception noted in Smith
v. Alabama,!8 there is no federal common law. Nevertheless, the federal
courts determine for themselves what the common law is. And this is espe-
cially true when they are passing upon matters of general law, in which case
they do not feel called upon to accept the views of state courts, but exercise
an independent judgment even as to what is or is not the true rule of the
common law; and certainly the question of the responsibility of an inter-
state railroad to its servants engaged in interstate commerce is one of gen-
eral law.19 And while the state courts, in passing on matters of purely
local concern, are independent of the national courts in their view of what
the common law is, yet it is hard to see how a state court, when called upon
to apply and enforce a federal statute, can disregard the rules of decision in
regard thereto laid down by the federal courts and follow the state court’s
own rules not in harmony therewith. If it can, then the responsibility of an
interstate carrier to its employees in interstate commerce will vary accord-
ing to the view the various states may take of the common-law rule con-
cerning assumption of risk. But congress sought to regulate this responsibil-
ity, and, having acted in the matter, it established a policy for all, and the

17. Determination of what is com-
mon law rule.—See Cross v. Chicago,
etc., R. Co., 191 Mo. App. 202, 177 S.
W. 1127, 1130.

18. No federal common law.—124 U.
S. 465, 31 L. Ed. 508, 8 S. Ct. 564.

19. Federal courts determine ques-

tions of general law.—See Cross vw.
Chicago, etc. R. Co. 191 Mo. App.
202, 177 S. W. 1127, 1130, citing Bal-
timore, etc.. R. Co. v. Baugh, 149 U.
S. 368, 37 L. Ed. 772, 13 S. Ct. 914.
See also. Southern R. Co. v. Gray (U.
S.), 36 S. Ct. 558, 561.
175 ASSUMPTION OF RISK. § 70

liability, as determined by the several states, is superseded by this one gen-
eral supreme law.?°

So in determining whether the state or federal rule, as to what is the com-
mon law, is to be followed in a case under the act, it would seem that, since
the federal Act is a general law enacted by congress to regulate the responsi-
bility of interstate common carriers by railroad to their employees engaged
in carrying on commerce between the states, the purpose of congress was to
establish one general uniform law in that regard, and that therefore, not
only the construction of that act by the federal courts, but the rules of de-
cision adopted therein in applying and enforcing the act, should be binding
upon the state courts. It is so held in regard to the liability of an interstate
common carrier to an interstate shipper for loss of goods, created by the
interstate commerce act.24_ And similarly, in cases under the Federal Em-
ployers’ Liability Act, it would seem that the rights of the employee and em-
ployer should be construed in the light of the federal decisions. And such
is the holding in some states.??

In Southern R. Co. v. Jacobs,?? the Supreme Court of Virginia followed
and applied the federal rule in regard to assumption of risk instead of the
rule in Virginia in that regard.

In Freeman v. Powell?4 the Texas Court of Civil Appeals adopted the
federal view as to assumption of risk in direct opposition to the state rule
on that subject; the court saying:

“Congress has undertaken to define the relative rights and liabilities of
railway companies and their employees engaged in interstate commerce,
and we do not think we have power to add to the act of congress by in-
grafting thereon an exception to the consequences that must ordinarily
flow from appellee’s undisputed knowledge of the defect and negligence
complained of in this suit.”

In Glenn v. Cincinnati, etc., R. Co.,25 the same rule concerning assump-
tion of risk was applied, though doubtless that was also the rule in that
state. The same may be observed of the case of Farley v. New York, etc.,
R. Co.26

From the foregoing it would seem that the Missouri cases which hold
otherwise and apply their own interpretation of the common law, are un-
sound in this respect.?7

20. Federal action supreme and rule 95 Kan. 474, 148 Pac. 747. See Cross

to be followed.—See Cross v. Chicago,
etc, R. Co., 191 Mo. App. 202, 177
S. W. 1127, citing Second Employers’
Liability Cases, 223 U. S. 1, 56 L. Ed.
327, 32 S. Ct. 169, 38 L. R. A, N.
S., 44.

21. Adams Exp. Co. v. Croninger,
226 U. S. 491, 57 L. Ed. 314, 33 S. Ct.
148, 44 L. R. A., N. S., 257; Missouri,
etc, R. Co. v. Harriman, 227 U. &.
657, 57 L. Ed. 690, 33 S. Ct. 397.

22. Spinden v. Atchison, etc., R. Co.,

v. Chicago, etc. R. Co. 191 Mo. App.
202, 177 S. W. 1127, 1129.

23. 116 Va. 189, 81 S. E. 99, affirmed
in 36 S. Ct. 588.

24. (Tex. Civ. App.), 144 S. W. 1033,
writ of error denied in 147 S. W. xv,
106 Tex. 626, no op.

25. 157 Ky. 453, 163 S. W. 461.

26. 88 Conn. 409, 91 Atl. 650. See,
also, Hardwick v. Wabash R. Co., 181
Mo. App. 156, 168 S. W. 328. :

27. Contrary holding.—Fish v. Chi-
§ 71 FEDERAL EMPLOYERS LIABILITY ACT. 176

§ 71. Section Refers to Federal Statutes.—There may have been
some doubt as to whether the statutes referred to in this section are federal
statutes only, or included the statutes of the state. It has been construed to
mean federal statutes only.28 In Seaboard Air Line Railway v. Horton, 233
U. S. 492, 58 L. Ed. 1062, 34 S. Ct. 635, 639, L. R. A. 1915C, 1, Ann. Cas,
1915B, 475, the court said:

“By the phrase ‘any statute enacted for the safety of employees’, congress
evidently intended federal statutes, such as the safety appliance acts
and the hours of service act. For it is not to be conceived that, in en-
acting a general law for establishing and enforcing the responsibility
of common carriers by railroad to their employees in interstate com-
merce, 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 employees, since this would
in effect relegate to state control two of the essential factors that de-
termine the responsibility of the employer.”

And again in Toledo, etc., R. Co. v. Slavin, 236 U. S. 454, 59 L. Ed. 671, 35
S. Ct. 306, 307, the court said:

“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 fed-
eral statutes, which—like the hours of labor law and the safety appli-
ance act—were passed for the protection of interstate employees.”

Even admitting that the act is open to the construction that state as well
as federal statutes are included in its terms, this would certainly, defeat the
uniformity of its operation throughout the several states. However, the
binding effect of the federal supreme court decision has been recognized in

cago, etc. R. Co., 263 Mo. 106, 172 5. S. W. 129, the Springfield Court of

W. 340, the ruling in which is recog-
niged in Hawkins v. St. Louis, etc., R.
Co. (Mo. App.), 174 S. W. 129, and
Hosheit v. Lusk, 190 Mo. App. 431, 177
S. W. 712, 716, but doubted in Cross
v. Chicago, etc., R. Co., 191 Mo. App.
202, 177 S. W. 1127.

In the case of Fish v. Chicago, etc.,

R. Co., 263 Mo. 106, 172 S. W. 340,

it is true the petition alleged that the
servant did not know of the danger-
ous proximity of the standpipe to the
track, but the proof was that he was
notified there was some danger from
its location. But, even if the facts
were that the servant in that case did
not know of the defect or the peril,
still the holding of the court is plain
that the Missouri rule as to assump-
tion of risk will be applied, and we
defer to that holding. In Hawkins v.
St. Louis, etc., R. Co. (Mo. App.), 174

Appeals, following the Fish Case, an-
nounced the same _ view, though
clearly, in that case, the facts did not
violate the rule of the federal courts
as to assumption of risk, since the
servant did not know of the presence
of the jack over which he fell. Cross
v. ‘Chicago, etc., R. Co., 191 Mo. App.
202, 177 S. W. 1127, 1130.

28. Construed to mean federal stat-
utes.—Seaboard Air Line Railway v.
Horton, 233 U. S. 492, 503, 58 L. Ed.
1062, 34 S. Ct. 635, L. R. A. 1915C, 1,
Ann. Cas. 1915B, 475; Toledo, etc., R.
Co. v. Slavin, 236 U. S. 454, 39 L. Ed.
671, 35 S. Ct. 306. See, also, Fleming
v. Norfolk, etc., R. Co., 160 N. C. 196,
203, 76 S. E. 212; Horton v. Seaboard,
etc, R. Co., 162 N. C. 424, 78 S. E. 494,
Ann. Cas. 1915A, 132, reversed on
other grounds in 34 S. Ct. 635.
177 8§ 71-72

ASSUMPTION OF RISK.

the cases below,?° and followed by the Washington State Supreme Court?°
which had previously ruled to the contrary.31

§§ 72-75. Extent and Application of Doctrine—§ 72. Statement
of Rule.—The general rule of the federal courts as to assumption of risk is
stated in the case of Gila Valley, etc., R. Co. v. Hall, 232 U. S. 94, 101, 58
L. Ed. 521, 524; 34 S. Ct. 229, 231, as follows:

“An employee assumes the risk of dangers normally incident to the oc-
cupation in which he voluntarily engages, so far as these are not at-
tributable to the employer’s negligence. But the employee 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 employee be-
comes 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 employee with the assumption of a 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 endan-
gered his safety; or else such danger must have been so obvious that an
ordinarily prudent person, under the circumstances, would have ap-~
preciated it.”

A servant on accepting employment assumes all the ordinary and usual
risks and perils incident thereto? The “ordinary” risks are those which

29. United States——Columbia, etc., Indiana.—Pittsburgh, etc., R. Co. v.

R. Co. v. Sauter (C. C. A.), 223 Fed.
604.

Connecticut—Farley v. New York,
etc., R. Co., 88 Conn. 409, 91 Atl. 650.

Georgia—Kirbo v. Southern R. Co.,
16 Ga. App. 49, 84 S. E, 491.

Indiana.—Cincinnati, etc., R. Co. wv.
Gross (Ind. App.), 111 N. E. 653.

Kentucky.— Louisville, etc., R. Co. v.
Patrick (Ky. App.), 180 S. W. 55.

Oregon.—Oberlin v. Oregon-Wash-
ington R., etc., Co. 71 Ore. 177, 142
Pac. 554, 557.

30. Lauer v. Northern Pac. R. Co.,
83 Wash. 465, 145 Pac. 606, L. R. A.
1915D, 292.

31. Opsahl v. Northern Pac. R. Co.,
78 Wash. 197, 138 Pac. 681.

82. Risks generally assumed—Usual
and ordinary risks.—United States.—
New York, etc., R. Co. v. Vizvari, 126
C. C. A. 632, 210 Fed. 118; Illinois
Cent. R. Co. wv. Stewart (C. C. A),
223 Fed. 30; Wright v. Yazoo, etc., R.
Co. (D. C.), 197 Fed. 94, affirmed in
235 U. S. 376, 35 S. Ct. 130; Central,
etc., R.'Co. v. Bethune, 124 C. C. A.
528, 206 Fed. 868.

Arkansas.—Kansas, etc, R. Co. vw.
Livesay (Ark.), 177 S. W. 875.

Fed Act—12

Farmers’ Trust, etc., Co. (Ind.), 108 N.
E. 108.

Kentucky.—Louisville, etc., R. Co. v.
Strange, 156 Ky. 439, 161 S. W. 239;
Cincinnati, etc, R. Co. wv. Goldston,
156 Ky. 410, 161 S. W. 246; Chesa-
peake, etc., R. Co. v. Walker, 159 Ky.
237, 167 S. W. 128; Truesdell v. Ches-
apeake, etc, R. Co., 159 Ky. 718, 169
S. W. 471, 472.

Maryland.—Baltimore, etc., R. Co. wv.
Whitacre, 124 Md. 411, 92 Atl. 1060.

Texvas—Missouri, etc, R. Co. v.
Bunkley (Tex. Civ. App.), 153 S. W.
937; Carter v. Kansas, etc, R. Co.
(Tex. Civ. App.), 155 S. W. 638.

Utah.—Grow v. Oregon, etc., R. Co.
44 Utah 160, 138 Pac. 398, Ann. Cas.
1915B, 481.

West Virginia—Hull v. Virginian R.
Co. (W. Va.), 88 S. E. 1060.

“The risks which are assumed by an
employee are those incident to, or
connected with, the work which the
employee performs, not those which
may exist in other portions of the es-
tablishment or yard where he him-
self has no duties, and where he has
the right to rely upon the master’s
§ 72 FEDERAL EMPLOYERS LIABILITY ACT. 178
are a part of the natural and ordinary method of conducting the business
and which are often recurring. The “usual” risks are those which are
common, frequent, and customary. Every risk which is not caused by a
negligent act or omission on the part of the employer is an ordinary risk.%$

Thus in the absence of any negligence on the part of the company an em-
ployee who goes between cars, which are likely to be moved at any time,
assumes the risk of injury from their movement.?4 And as an employee is
presumed to know rules that are made for his guidance, and that he is to
enforce, so he assumes the risk of an injury resulting from the operation of
cars as provided by such rules,?5 and an experienced employee when remov-
ing a defective pile from a bridge assumes the risk of an injury resulting
from its defective condition.®®

A trackwalker is necessarily subject to great dangers. When therefore,
a man contracts for such employment, he knows and takes on himself the
risks and dangers incident to such dangerous work. His assumption of
those obvious and unavoidable risks is in the very nature of things part of his
employment, so as long as the defendant railroad used its tracks by running
its trains properly thereon and in the usual way, the duty of guarding him-

self against such trains rested on the employee.37

having performed his entire duty.”
Baltimore, etc. R. Co. v. Whitacre,
124 Md. 411, 92 Atl. 1060, 1064.

An experienced switchman,  thor-
oughly familiar with the work at which
he was engaged, and thoroughly fa-
miliar with the customary methods of
doing the work which he was engaged
in doing at the time he received his in-
juries, assumed the risk of the injuries
received by him, where the conduct
of defendant was not negligent, but
was done and performed in the usual
and customary manner with it and
other railroads for doing such things.
Ft. Worth, etc., R. Co. v. Copeland
(Tex. Civ. App.), 164 S. W. 857, 858,
writ of error dismissed in 170 S. W.
xix, no op.

An employee who is an experienced
fireman assumes the risk of a bolt
lying upon the top of the water tank
on his engine, which turned under his
feet and caused him to fall and be in-
jured. He having no right to expect
this place to be free of obstructions
as the. engine had no tool box, and
that it was customary on such engines
to carry equipment on top of the wa-
ter tank, and there were at the time,
cinders, coal, rubber hose and an iron
bar, besides the bolt. Kansas, etc., R.
Co. v. Livesay (Ark.), 177 S. W. 875.

An employee assumes the risk of
alighting from the caboose of a train
when upon a high trestle, of which
there were many on defendant’s road,

on a dark night for the purpose of
performing his duty as a flagman. Hull
v. Virginian R. Co. (W. Va.), 88 S.
E. 1060.

33. New York, etc, R. Co. v. Viz-
vari, 126 C. C. A. 632, 210 Fed. 118,
122.

34. Moving cars when employee be-
tween.—Louisville, etc, R. Co. w.
Johnson, 161 Ky. 824, 171 S. W. 847.

An operation consisting in running
cars down an incline from a hump
which was of daily occurrence and a
usual practice of railroads generally, is
a risk of the service which plaintiff as-
sumes and he can not recover for an
injury received due to the practice

-while he was between cars which were

knocked together by those coming
down the incline, especially as a rule
of the company required an employee
going between cars to take precautions
against their being moved which he
did not do. Boldt v. Pennsylvania R.
Co., 134 C. C. A. 175, 218 Fed. 367.

35. Swartwood v. Lehigh Valley R.
Co., 169 App. Div. 759, 155 N. Y. S.
778.

36. Employee repairing defect.—Mar-
shall v. Chicago, etc., R. Co. (Minn.),
155 N. W. 208.

37. Employment dangerous in itself.
—Connelley v. Pennsylvania R. Co.,
119 C. C. A. 392, 201 Fed. 54, 56, 47
L. R. A., N. S., 867, reversed in 231 U.
S. 764, 58 L. Ed. 472, 34 S. Ct. 327,
179

ASSUMPTION OF RISK.

& 7a

So too, an employee assumes the risk of injury from simple tools,3& but
a steel chisel used by employees to cut steel railroad rails is not a simple

tool.39

A servant does not assume the extraordinary and unusual risks of the
employment,*® and he does not assume the risks which would not have ex-

isted if the employer had fulfilled his contractual duties.

But only those

risks are assumed which the employment involves after the employer has
done everything that he is bound to do for the purpose of securing the safety
of his servants,*! that is, he does not assume the risk of injury from the

negligence of the master.4?

on confession of error, presumably
that the evidence showed an extraor-
dinary danger even in such an employ-
ment.

38. Simple tools—New York, etc.,
R. Co. v. Vizvari, 126 C. C. A. 632,
210 Fed. 118.

39. New York, etc., R. Co. vw. Viz-
vari, 126 C. C. A. 632, 210 Fed. 118,
120.

40. Extraordinary and unusual risks.
—Umited States—New York, etc, R.
Co. v. Vizvari, 126 C. C. A. 632, 210
Fed. 118; Central R. Co. v. Colasurdo,
113 C. C. A. 379, 192 Fed. 901, affirm-
ing 180 Fed. 832; Illinois Cent. R. Co.
v. Porter, 125 C. C. A. 55, 207 Fed.
311; Boston, etc., R. Co. v. Benson, 124
Cc. C. A. 68, 205 Fed. 876; Chesapeake,
etc, R. Co. v. Proffitt, 134 C. C. A.
37, 218 Fed. 23, affirmed in 36 S. Ct.
620.

Kentucky.—Louisville, etc., R. Co. v.
Strange, 156 Ky. 439, 161 S. W. 239.

Nebraska —Huxoll v. Union Pac. R.
Co. (Neb.), .155 N. W. 900.

North Carolina—Renn v. Seaboard,
etc, Railway (N. C.), 86 S. E. 964,
affirmed in 36 S. Ct. 567.

Pennsylvania.—Hartman v. Western
Maryland R. Co., 246 Pa. 460, 92 Atl.
698. :

When considering the question
whether: the doctrine of assumption of
risk, as it existed at common law, was
entirely abolished by the act, the court
held that even at common law an em-
ployee did not assume the risk of neg-
ligence of the employer nor unusual
or unexpected methods of operation
and where an employee was injured by
the sudden starting of an engine as he
was about to mount it, having dis-
mounted in order to examine some
defect at the request of the engineer,
the sudden starting of the engine was
such an extraordinary method of op-
eration as would preclude the doctrine
of assumed risk. Southern R. Co. wv.
Gadd, 125 C. C. A. 21, 207 Fed. 277,
affirmed in 34 S. Ct. 696.

So an engineer does not assume the risk of the

A brakeman who went between cars
to couple the air hose, does not as-
sume the risk of an injury due to the
impact from cars in the rear, when
done negligently, without notice, and
with great violence and high speed.
Chesapeake, etc. R. Co. v. Proffitt,
134 C. C. A. 37, 218 Fed. 23, affirmed
in 36 S. Ct. 620. s

41. Negligence of master.—New
York, etc., R. Co. v. Vizvari, 126 C. C.
A. 632, 210 Fed. 118.

42. United States—Chesapeake, etc.,
R. Co. uv. Proffitt (U. S.), 36 S. Ct.
620; Central R. Co. v. Young, 118 C.
C. A. 465, 200 Fed. 359, 45 L. R. A,
N. S., 1015; Grand Trunk, etc. R. Co.
v. Lindsay, 120 C. C. A. 166, 201 Fed.
836, affirmed in 32 S. Ct. 581; Sandidge
v. Atchison, etc., R. Co., 113 C. C. A.
653, 193 Fed. 867; Wright v. Yazoo,
etc. R. Co. (D. C.), 197 Fed. 94, af-
firmed in 235 U. S. 376, 35 S. Ct. 1305
Woodruff v. Yazoo, etc, R. Co., 127
C. C. A. 411, 210 Fed. 849; S. C., 137
C. C. A. 567, 222 Fed. 29; Union Pac.
R. Co. v. Fuller, 122 C. C. A. 359, 204
Fed. 45; Clark v. Erie R. Co. (D. C.),
230 Fed. 478, 483. See, also, South-
ern R. Co. v. Gadd, 125 C. C. A. 21,
207 Fed. 277, affirmed in 34 S. Ct. 696.

Arizona—Guana v. Southern Pac.
Co., 15 Ariz. 413, 139 Pac. 782; Ari-
zona Eastern R. Co. v. Bryan (Ariz.),
157 Pac. 376.

Connecticut—Vickery v. New Lon-
don, etc., R. Co., 87 Conn. 634, 89 Atl.
277.

, Georgia—Kirbo v. Southern R. Co.,
16 Ga. App. 49, 84 S. E. 491.

Kansas.—Smith v. St. Louis, ete, R.
Co., 95 Kan. 451, 148 Pac. 759.

Kentucky.—Cincinnati, etc., R. Co. v.
Goldston, 156 Ky. 410, 161 S. W. 246;
Louisville, etc., R. Co. v. Henry (Ky.
App.), 180 S. W. 74.

Minnesota—La Mere v. Railway
Transfer Co., 125 Minn. 159, 145 N.
W. 1068, Ann. Cas. 1915C, 667; Thomp-
§§ 72-73

FEDERAL EMPLOYERS LIABILITY ACT.

180

application of the air brakes by a brakeman causing the sudden stopping of
a train, even when done to avoid injury to property, if the emergency was
brought about by the defendant’s servants in the negligent operation of the
train causing the necessity of the application of the brakes.48

§ 73. Effect of Knowledge by Employee.—The principal element of

assumed risk is knowledge.

Of usual and ordinary risks this is presumed,

but many of the risks previously noted as not being assumed, as negligence
of the employer, and extraordinary risks, are assumed when the employee

son v. Minneapolis, ete, R. Co.
(Minn.), 158 N. W. 42.

Missouri—Hawkins v. St. Louis,
etc., R. Co. (Mo. App.), 174 S. W. 129.

Texas.—Missouri, etc, R. Co. v.
Bunkley (Tex. Civ. App.), 153 $. W.
937.

Vermont.—Niles v. Central Vermont
R. Co., 87 Vt. 356, 89 Atl. 629.

“The assumption of risk saved to
employers under the federal act as a
shield against the consequences of in-
juries to employees, does not include
risk of unexpected negligent acts of
co-employees.” Graber v. Duluth,
etc, R. Co. 159 Wis. 414, 150 N. W.
489, 492. ;

“A brakeman on the train assumed
the danger of the ordinary bumping of
the cars attendant upon their usual
and proper operation, or, putting it in
another way, the railway company is
not negligent in respect of the bump-
ing incident upon the usual and proper
operation of the train. The brakeman
does not assume the jerking and
bumping caused by the negligent op-
eration of the train.” La Mere v. Rail-
way Transfer Co., 125 Minn. 159, 145
N. W. 1068, 1072, Ann. Cas. 1915C,
667.

A conductor who undertook to as-
sist a brakeman in controlling a car
so overloaded that the brakes would
not hold it, and that had started down
grade, can not be said to assume the
risk, as this was the duty incident to
his position, one which he could not
neglect unless the danger was such
that an ordinarily prudent person
would not have undertaken it. San-
didge v. Atchison, etc, R. Co, 113
C. C. A. 653, 193 Fed. 867. ‘

Where it is the duty of a locomotive
engineer to inspect his engine before
taking it upon his run in the com-
pany’s service, and to report any de-
fects to the repair department, and
preparatory to making his run, he is
injured while inspecting the engine,
just received from the repair shop, by
reason of a defect in its machinery
unknown to him, the question of as-

sumption of risks is not presented, it
not being the duty of the engineer to
repair the engine; and the company
is responsible in damages for the in-
jury if directly and proximately caused
by the defective condition of the en-
gine, it being its duty, by the exercise
of proper care, to furnish its employee
with a reasonably safe place to work
and reasonably safe appliances with
which to do it. Lloyd v. Southern R.
Co., 166 N. C. 24, 81 S. E. 1003, af-
firmed in 36 S. Ct. 210.

An inspector when riding upon the
main line assumed the risk of injury
from all trains properly operated but
does not assume the risk of engines
running backwards without an outlook
or any warning being given him of
their approach. Anest yw. Columbia,
etc, R. Co. (Wash.), 154 Pac. 1100.

A locomotive engineer in walking
to his engine in the switching yards
of a division station through a cloud
of smoke and steam does not assume
the risk that his employer will negli-
gently propel an engine backwards
through the yards and through dense
clouds of smoke and steam without
warning of some character either by
bell, whistle, light, or lookout. Hux-
oll v. Union Pac. R. Co. (Neb.), 155
N. W. 900.

An employee working on the track
does not assume the risk of injury
from a passing train which failed to
give warning of its approach, and the
employee had been instructed that
there would be no trains passing on
that particular track in the direction
this train was going. Glunt v. Penn-
sylvania R. Co., 249 Pa. 522, 95 Atl.
109.

An employee is not guilty of as-
sumed risk when working on a switch
of a high tension electric line when he
was killed by its making a connection
when he shad not been told or had any
reason to suppose that it was charged.
Millette v. New York, etc., R. Co., 169
App. Div. 126, 154 N. Y. S. 792.

43. Louisville, etc, R. Co. v. Stew-
art (U. S.), 36 S. Ct. 586.
181

with knowledge thereof continues his employment ‘without

ASSUMPTION OF RISK.

§ 73

objection.t#

This knowledge must be shown,*> and that the plaintiff appreciated or was

44, Knowledge of employee. —
United States—Seaboard Air Line
Railway v. Horton, 233 U. S. 492, 58
L. Ed. 1062, 34 S. Ct. 635, L. R. A.
1915C, 1, Ann. Cas. 1915B, 475; Schweig
v. Chicago, etc., R. Co., 132 C. C. A
660, 216 Fed. 750, 752.

Texas—Carter v. Kansas, etc, R.
Co. (Tex. Civ. App.), 155 S. W. 638;
Texas, etc., R. Co. v. White (Tex. Civ.
App.), 177 S. W. 1185.

Virginia—Southern R. Co. v. Jacobs,
116 Va. 189, 199, 81 S. E. 99, affirmed
in 36 S. Ct. 588.

“Cases might be multiplied to any.

extent to show that the doctrine of
assumed risks covers more than these
risks which are ordinarily incident to
the business, and embraces the use of
defective appliances, and work of al-
most every description where the em-
ployee with knowledge of the defect
continues to use it without notice to
the employer. Upon this point see
Choctaw, etc., R. Co. v. McDade, 191
U. S. 64, 48 L. Ed. 96, 24 S. Ct. 24,
where it is said, that ‘An employee
assumes the risk of injury from de-
fective appliances furnished by his em-
ployer only when the defect is known
to, or plainly observable by, the em-
ployee.” Southern R. Co. v. Jacobs,
116 Va. 189, 199, 81 S. E. 99, affirmed
in 36 S. Ct. 588.

45. United States—Colasurdo  v.
Central Railroad (C. C.), 180 Fed. 832,
affirmed in 113 C. C. A. 379, 192 Fed.
901; Yazoo, etc., R. Co. v. Wright, 125
C. C. A. 25, 207 Fed. 281, affirming 197
Fed. 94, affirmed in 285 U. S. 376, 35
S. Ct. 130; Illinois Cent. R. Co. vw.
Stewart (C, C. A.), 223 Fed. 30, 34;
Central Vermont R. Co. v. White, 238
U.S. 507, 59 L. Ed. 1433, 35 S. Ct. 865;
Chesapeake, etc., R. Co. v. Proffitt (U.
S.), 36 S. Ct. 620.

Indiana—Pittsburgh, etc., R. Co. v.
Farmers’ Trust, etc., Co. (Ind.), 108
N. E. 108, 110. ;

Minnesotaa—McDonald v. Railway
Transfer Co., 121 Minn. 273, 141 N.
W. 177.

North Carolina—Lloyd v. Southern
R. Co., 166 N. C. 24, 81 S. E. 1003, af-
firmed in 36 S. Ct. 210.

Texas.—Missouri, etc, R. Co. wv.
Bunkley (Tex. Civ. App.), 153 S. W.
937; Missouri, etc. R. Co. v. Freeman
(Tex. Civ. App.), 168 S. W. 69.

The rules of the company are part
of the contract of employment and
their violation, unless habitual or oth-
erwise brought to the knowledge of

we

the servant, would not make him
guilty of assumption of risk in that
respect. Yazoo, etc. R. Co. v. Wright,
125 C. C. A. 25, 207 Fed. 281, affirming
197 Fed. 94, affirmed in 235 U. S. 376,
35 S. Ct. 130.

An employee killed by being struck
by a post at the entrance of a round-
house, by reason of an engine being
wider than ordinary, a fact of which
he had no knowledge, held not to have
assumed the risk. Guana v. Southern
Pac. Co., 15 Ariz. 413, 139 Pac. 782.

Where the evidence shows that
plaintiff by the use of an old style lu-
bricator had no knowledge of its dan-
gerous qualities as compared with a
new model, it was not error for the
court to instruct that the plaintiff did
not assume the risk. Bower v. Chi-
cago, etc. R. Co., 96 Neb. 419, 148 N.
W. 145, affirmed in 36 S. Ct. 624.

The negligence of the coservant of
the intestate, is not an ordinary risk
which can be in any way covered by
the rule as to assumption of risk, un-
less possibly where there is evidence
that the coservants are usually negli-
gent in a certain specified way, with
which fact the party injured was ac-
quainted. Boston, etc., R. Co. v. Ben-
son, 124 C. C. A. 68, 205 Fed. 876, 878.

Plaintiff does not assume the risk
of injury from a switch being so
placed as to have the lever within
114% inches of a passing car when “He
denied that he was riding, or attempt-
ing to ride, on the side of the car, if
defendant’s instruction forbade this at
the place in question. A fair inference
of his testimony is that, although he
believed there was enough clearance
to pass a man between the switch
stand, when on the side of the car, he
did not act on that belief, but was at-
tempting, when struck, to get out of
all danger by swinging onto the end
of the car. The night was dark, and
there is nothing to show that he could
see just how far he was away from
the switch when he attempted to
board the car. He claimed he had
never observed a car of the size of the
one he was on when injured, with a
stirrup extending out 3 inches, or any
car on track 4, pass the switch when
set for track 3. An employee can not
be said to have assumed unknown and
unappreciated dangers, unless it is
made to appear that, had he used or-
dinary care and prudence, he would
have known and appreciated the
same.” McDonald v. Railway Trans-
§ 73

bound to appreciate the risk.*®

FEDERAL EMPLOYERS LIABILITY ACT.

182

\

In Chicago, etc., R. Co. v. Bower,*% the

court held that an engineer did not assume the risk of the use of a lubricator
having tubular glasses, because he did not know or have sufficient notice of
the increased danger attributable to the employee's negligence, in maintain-
ing such an appliance upon a high pressure boiler.

But risks which are open and obvious or which in the exercise of ordinary
care an employee would have discovered, he is presumed to know and as-
sume.47 ‘But by this it is not understood that the employee is under a duty

fer Co., 121 Minn. 273, 141 N. W. 177,
178.

The plaintiff, an engineer on defend-
ant’s railroad, was injured while in-
specting his locomotive or in operat-
ing a defective lever thereon, while
making the inspection, and in his ac-
tion to recover damages for personal
injuries inflicted on him, a charge by
the court to the jury is held correct
-which requires the plaintiff to show
by the preponderance of the evidence
that the defendant knew of the defect,
or should have known thereof by
exercising a reasonable inspection.
Lloyd v. Southern R. Co., 166 N. C. 24,
81 S. E. 1003, affirmed in 36 S. Ct. 210.

Where a railroad brakeman made a
contract upon entering his employment
that he would take care of himself as
far as known and existing dangers of
the work were concerned, the same
does not apply to an injury received
by a standpipe erected too close to
the track and of which he did not re-
ceive adequate notice of the danger.
Fish v. Chicago, etc., R. Co., 263 Mo.
106, 172 S. W. 340.

46. Michigan Cent. R. Co. v. Schaffer,
136 C. C. A. 413, 220 Fed. 809; Chesa-
peake, etc, R. Co. v. De Atley (U.
S.), 36 S. Ct. 564.

“While appellee may have known
that there were not enough employees
present to properly remove the car
a the track, yet something had to

e done; a passenger train was in
sight; and, if the car was left on the
track, a collision might have occurred,
which would probably have resulted
in loss of life or property. Under
these conditions, appellee was com-
manded by the foreman to quickly re-
move the car, and, while obeying that
command, appellee was hurt. When
he was ordered to remove the car, ap-
pellee had no time for deliberation,
but responded immediately to the
foreman’s orders to prevent a collision
and probably the loss of life or prop-
erty. He evidently did not deliberate
but acted as the occasion demanded,
without time to consider the danger
to himself.” Missouri, etc., R. Co. v.

Freeman (Tex. Civ. App.), 168 S. W.
69, 70, writ of error dismissed in 170
S. W. xix, no op.

46a. 36 S. Ct. 624.

47, United States—Wright v. Yazoo,
etc, R. Co. (D. C.), 197 Fed. 94, af-
firmed in Yazoo, etc., R. Co. v. Wright,
125 C. C. A. 25, 207 Fed. 281, this last
case affirmed in 235 U. S. 3876, 35 S.
Ct. 130. :

Arizona.—Guana wv. Southern Pac.
Co., 15 Ariz. 413, 139 Pac. 782.

Connecticut.—Farley v. New York,
etc., R. Co., 88 Conn. 409, 91 Atl. 650.

Kansas—Barker v. Kansas, etc, R.
Co., 88 Kan. 767, 129 Pac. 1151, 43 L.
R. A., N. S., 1121; S. C., 94 Kan. 176,
146 Pac. 358; Spinden v. Atchison, etc.,
R. Co., 95 Kan. 474, 148 Pac. 747.

Kentucky.—Cincinnati, etc. R. Co. v.
Goldston, 156 Ky. 410, 161 S. W. 246;
Davis v. Chesapeake, etc., R. Co., 166
Ky. 490, 179 S. W. 422.

Minnesota. — McDonald v. Railway
Transfer Co., 121 Minn. 273, 141 N.
W. 177.

Utah.—Grow v. Oregon, etc., R. Co.
44 Utah 160, 138 Pac. 398, Ann. Cas.
1915B, 481. i

Where an engineer was killed by
coming in contact with a high voltage
wire at a point where it was depressed
to permit its passing under a bridge,
he was held to have assumed the risk
of such injury. He being familiar
with all the conditions, his experience
confined to a section of road where
such dangers were numerous and his
latest services frequently upon it, and
the conditions having existed for
years, even though not warned, which
he was, of the dangers. Farley v. New
York, etc, R. Co., 88 Conn. 409, 91
Atl. 650.

The Kansas Court, reversing the
lower court for instructing that in or-
der for an employee to be held to as-
sume the risk the danger must be so
glaring that an ordinarily prudent per-
son in the exercise of ordinary care
would not attempt it, said: “This ac-
tion, however, is brought under the
Federal Employers’ Liability Act.
* * * The matter is therefore con-
183 ASSUMPTION OF RISK. § 73
to anticipate or take any precautions to discover a danger the result of neg-
ligence on the part of the employer or co-employees.48 In Chesapeake, etc.,

R. Co. v. De Atley (U. 8.), 36 S. Ct. 564, 566, the court said:

“According to our decisions, the settled rule is not that it is the duty of
an employee to exercise care to discover extraordinary dangers that
may arise from the negligence of the employer or of those for whose
conduct the employer ‘is responsible, but that the employees may as-
sume that the employer or his agents have exercised proper care with
respect to his safety until notified to the contrary, unless the want of
care and the danger arising from it are so.obvious that an ordinarily
careful person, under the circumstances, would observe and appreciate
them.”

Thus an employee who with knowledge assumes the risk of customary neg-
ligence of his co-employees, did not assume the risk of an isolated act of
negligence which he had no reason to anticipate would then occur4® And
where an employee in the performance of his duties was required to board
a moving train as it approached him, he had a right to assume that the en-
gineer would run the train at a speed that would enable him to get on in
safety. It being impossible to form an accurate judgment of the speed
of a train coming directly toward him, he did not necessarily assume the
risk by attempting to board it when his opportunity to observe the speed
was limited to the brief space of time that elapsed between the passing of
the front end of the engine and the cab where it was his purpose to get on,
and his duties required him to be.5° .

But when the employee knows of a defect in the appliances used by him,
and appreciates the danger resulting, and continues in the employment with-
out objection, or without obtaining from the employer an assurance of rep-
aration, he assumes the risk, even though it may arise from the employer’s
breach of duty.51

trolled by the decisions of the United
States Supreme Court, which deter-
mine that this statute makes assump-
tion of risk a distinct and complete
defense, and that it may exist without
chances being taken that an ordina-
rily prudent person would not incur.
Seaboard Air Line Railway v. Horton,
233 U. S. 492, 504, 58 L. Ed. 1062, 34
S. Ct. 635, L. R. A. 1915C, 1, Ann. Cas.
1915B, 475. The question of the atti-
tude of a person of ordinary prudence
enters into the matter in two ways.
The employee is not regarded as as-
suming unknown or _ unappreciated
risks arising from his employer’s neg-
lect, unless they are so obvious that
an ordinarily prudent person would
observe and appreciate them. Seaboard
Air Line Railway v. Horton, 223 U. S.
492, 504, 58 L. Ed. 1062, 34 S. Ct. 635,
L. R. A. 1915C, 1, Ann, Cas. 1915B,
475; Gila Valley, etc, R. Co. v. Hall,

232 U. S. 94, 102, 58 L. Ed. 521, 34
S. Ct. 229. And, where a promise of
reparation is made, the employee who
relies upon it is said not to 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.’ Seaboard
Air Line Railway v. Horton, 233 U.
S. 492, 505, 58 L. Ed. 1062, 34 S. Ct.
635, L. R. A. 1915C, 1, Ann. Cas. 1915B,
475.” Spinden wv. Aachison, etc., R.
Co., 95 Kan. 474, 148 Pac. 747, 748.

48. Employee not required to use
care to discover danger.—Chesapeake,
etc, R. Co. v. De Atley (U. S.), 36 S.
Ct: 564, 566.

49. Texarkana, etc., R. Co. v. Casey
(Tex. Civ. App.), 172 S. W. 729.

50. Chesapeake, etc., R. Co. vw. De
Atley (U. S.), 36 S. Ct. 564.

51. As extending to negligence of
master.—United States—Seaboard Air
§ 73 FEDERAL EMPLOYERS’ LIABILITY ACT. 184

It has been contended that in allowing the defense of assumed risk it was
not intended to embrace such risks as flow from any negligent act on the
part of the employer, or of any of its officers, agents or employees, 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 equip-
ment, but that as to such acts of negligence the employer is under an abso-
lute liability by force of the first section of the act. In support of this
contention reliance was placed in part upon the precise form of the term
used in the act, which does not speak of ‘assumption of risks,” but uses the
phrase, the employee shall not be held to have “assumed the risks.” But this
change merely in the order of the words used cannot have any important
bearing, on the construction of the statute; “Assumption of risks,’ and “as-
sumed the risks” of his employment being equivalent modes of stating an
identical proposition. It is a phrase which has acquired a definite technical
meaning, nowhere more vigorously enforced than in the decisions of the
Supreme Court of the United States.°2 The contention was renewed. on
appeal in the Federal Supreme Court, based upon the act being punitive of
negligence and that it did not cast upon the employees an assumption of
risk of any condition or situation caused by such negligence, but the court
held this was foreclosed by the decision in the Horton Case.53

Thus an employee with knowledge assumes the risk of the negligent fail-
ure of a railroad to supply a guard glass on the water gauge of the locomo-
tive; °4 of its failure to provide a handcar sufficiently light to be handled by
the number of men at work;** in having an insufficient force to do the

Line Railway v. Horton, 233 U. S. 492,
58 L. Ed. 1062, 34 S. Ct. 635, L. R. A.
1915C, 1, Ann. Cas. 1915B, 475; Colum-
bia, etc, R. Co. v. Sauter (C. C. A,),
223 Fed. 604; Boldt v. Pennsylvania R.
Co. 184 C. C. A. 175, 218 Fed. 367;
Clark v. Erie R. Co. (D. C.), 230 Fed.
478.

South Carolina—Lorick v. Seaboard,
etc., Railway (S. C.), 86 S. E. 675.

Virginia.—Southern R. Co. v. Ja-
cobs, 116 Va. 189, 81 S. E. 99, affirmed
in 36 S. Ct. 588.

A pit necessarily maintained in a
railway shop even though it is un-
guarded, is a risk which a plaintiff as-
sumes when he has knowledge of its
existence and condition. Glenn v. Cin-
cinnati, etc., R. Co. 157 Ky. 453, 163
S. W. 461.

Evidence held not to show that
plaintiff was aware of a jack being on the
floor of a roundhouse, over which he
stumbled and was thrown under an
engine, the fact of an absence of light,
known to him was an ordinary risk,
but did not extend to the positive neg-
ligent act of the defendant in leaving
the jack on the floor. Hawkins v. St.
Louis, etc, R. Co. (Mo. App.), 174
S. W. 129.

Plaintiff assumes the risk of injury
from a lnown condition of spike mauls
which caused splinters of steel to fly
therefrom, when he continues work
without assurance that the defect would
be remedied. Louisville, etc., R. Co.
v. Patrick (Ky. App.), 180 S. W. 55.

A petition which discloses that an
employee voluntarily attempted to
cross over a known dangerous and de-
fective roadbed through a small open-
ing between moving cars, shows as-
sumed risk and is subject to a gen-
eral demurrer. Charleston, etc.,
Co. v. Sylvester (Ga. App.), 86 S. E.
Os

52. Southern R. Co. v. Jacobs, 116 Va.
189, 81 S. E. 99, affirmed in 36 S. Ct.
588.

53. Jacobs v. Southern R. Co. (U.
S.), 36 S. Ct. 588. See, also, Columbia,
etc, R. Co. vw Sauter (C. C. A.), 223
Fed. 604.

54. Seaboard Air Line Railway v.
Horton, 233 U. S. 492, 58 L. Ed. 1062,
34 S. Ct. 635, L. R. A. 1915C, 1, Ann.
Cas. 1915B, 475.

55. Texas, etc, R. Co. v. White
(Tex. Civ. App.), 177 S. W. 1185, 1186.
185 ASSUMPTION OF RISK. § 73

work; 5° in permitting a pile of cinders to remain in close proximity to the
track;*7 in constructing its tracks too close to each other,®8 or around a
curve and through a deep cut which prevented employees seeing switch
lights.5®

When there has been a complaint made and an assurance of absence of
danger, or a promise to repair, the above principles are further qualified.
As it is well settled that where an employee requests additional tools or
appliances in order to insure his safety, and the refusal to comply with such
request is accompanied by an assurance that there is no danger in the serv-
ice which he is required to perform, the employee, under such circumstances,
will not be deemed to have assumed the risk incident to his employment.®
In Seaboard, etc., Railway v. Horton, 239 U. S. 595, 36 S. Ct. 180, 182, the
court said:

“There is a substantial difference in the attitude of the employee towards
the known dangers arising out of defects attributable to the employer's
negligence, depending upon whether there has or has not been a prom-
ise of repair. It was clearly expressed in a well-reasoned opinion by the
supreme court of New Jersey (Dowd v. Erie R. Co., 70 N. J. L. 451,
455, 57 Atl. 248, 16 Am. Neg. Rep. 122) thus: ‘To the rule that the
servant assumes the obvious risks of the employment, an exception is
made where the master has promised to amend the defect or to make
the place safe, and the servant continues the work in reliance upon the
promise. * * * The master is exempted from liability in the case
of obvious risks for the reason that the servant, by continuing in the
employment with knowledge of the danger, evinces a willingness to
incur the risk, and upon the principle “volenti non fit injuria.” But
when the servant shows that he relied upon a promise made to him to
remedy the defect, he negatives the inference of willingness to incur
the risk.’ To relieve the employer from responsibility for injuries that

56. Marshall v. Chicago, etc. R. Co. the rule of the cases. Gila Valley, etc.,

(Minn.), 155 N. W. 208.

57. Southern R. Co. v. Jacobs, 116
Va. 189, 81 S. E. 99, affirmed in 36 S.
Ct. 588.

It can not be contended that the
evidence failed to show that an em-
ployee was chargeable with knowledge
of the material conditions, the imme-
diate cause of his injury, or that he
appreciated the dangers produced by
abnormal conditions when “He ad-
mitted a knowledge of the ‘material
conditions,’ and it would be going very
far to say that a fireman of an engine
who knew of the custom of depositing
cinders between the tracks, knew of
their existence, and who attempted to
mount an engine with a vessel of wa-
ter in his hands holding ‘not over a
gallon,’ could be considered as not
having appreciated the danger and as-
sumed the risk of the situation because
he had forgotten their existence at the
time and did not notice them. We
think his situation brought him within

R. Co. wv. Hall, 232 U. S. 94, 102, 58
L. Ed. 521, 34 S. Ct. 229.” Jacobs v.
Southern R. Co. (U. S.), 36 S. Ct.
588, 591.

58. Central, etc, R. Co. v. Bethune,
124 C. C. A. 528, 206 Fed. 868; Kirbo
v. Southern R. Co., 16 Ga. App. 49,
84 S. E. 491. See also, Baugham v.
New York, etc, R. Co. (U. 8.), 36

‘S. Ct. 592.

59. Bowers v. Southern R. Co., 10
Ga. App. 367, 73 S. E. 677.

An engineer assumes the risk of a
switch point obscured by a curve,
when he had been in the employ of
the company for a number of years,
the danger being known to him, and
it was necessarily one of the ordinary
risks incident to the employment in
which he was engaged. Louisville,
etc. R. Co. v. Heinig, 162 Ky. 14, 171
S. W. 853.

60. Effect of complaint—Coal, etc.,
R. Co. v. Deal (C. C. A.), 231 Fed. 604,
610.
§§ 73-75 FEDERAL EMPLOYERS’ LIABILITY ACT. 186

may lbefall the employee while remaining at his work in reliance upon a
promise of reparation, there must be something more than knowledge
by the employee that danger confronts him, or that it is constant. The
danger must be imminent,—immediately threatening,—so as to render
it clearly imprudent for him to confront it, even in the line of duty,
pending the promise.”

§ 74. Assumed Risk of One of Two Concurring Causes.—Upon well
settled principles it has been held that where an employee is injured by two
concurring causes, the fact that he assumed the risk of injury from one, will
not defeat a recovery when the employer is liable for the injury due to the
other cause.®! ‘Thus, where one of the proximate causes of the injury was
the negligence of a fellow servant of the deceased, it was held that since
under the act such defense was no longer available to the defendant com-
pany, it was immaterial whether the deceased had assumed the risk of the
defendant’s negligence in failing to see that the flooring of a car was prop-
erly fastened to the center sills, since the law is that it is only necessary for
the plaintiff to show that one of the co-operating causes of the injury was a
negligent act or omission for which the master is responsible.62

§ 75. As Question of Law or Fact.—On conflicting evidence the ques-
tion of assumed risk is for the jury.6 The doctrine of the Federal Supreme
Court is that the trial court is bound to submit the case to the jury unless a
recovery is impossible upon any view that can be properly taken of the facts
which the evidence tends to establish,** or as generally expressed, unless the
evidence is of such a character that ordinary minds would not differ as to
the proper conclusion to be reached.6® So the questions of whether a defect
or danger, was obvious,®* or there was knowledge,®7 or in the exercise of

61. Where employee assumes risk
of one of two contributing causes.—
Northern Pac. R. Co. v. Maerkl, 117
C. C. A. 237, 198 Fed. 1.

See, also, Carter v. Kansas, etc., R.
Co. (Tex. Civ. App.), 155 S. W. 638,
where an employee was injured by a
defective door when making a flying
switch.

62. Northern Pac. R. Co. v. Maerkl,
117 C. C. A. 237, 198 Fed. 1, 6.

63. As question for jury.—McGov-
ern _v. Philadelphia, etc, R. Co., 235
U. S. 389, 59 L. Ed. 283, 35 S. Ct. 127;
Kanawha, etc., R. Co. v. Kerse, 239
U. $. 576, 36 S. Ct. 174; Lorick v. Sea-
board, etc., Railway (S. C.), 86 S. E.
675.

64. New York, etc., R. Co. v. Viz-
vari, 126 C. C. A. 632, 210 Fed. 118,
127; citing Dunlap v. Northeastern R.
Co., 130 U. S. 649, 32 L. Ed. 1058, 9
8. Ct. 647; Kane v. Northern Cent. R.
ae 128 U. S. 91, 32 L. Ed. 339, 9 S.

t. 16.

65. Chesapeake, etc, R. Co. v. De

Atley (U. S.), 36 S. Ct. 564; Carter v.
Kansas, etc., R. Co. (Tex. Civ. App.),
155 S. W. 638, 643. See, also, Railroad
Co. v. Stout (U. S.), 17 Wall. 657, 21
L. Ed. 745,

66. Siegesmund v. Chicago, etc., R.
Co. (C. C. A.), 229 Fed. 956; Portland
Terminal Co. v. Jones (C. C. A.), 227
Fed. 8; Tonsellito v. New York, etc.,
R. Co. (N. J.), 94 Atl 804,

67. Woodruff v. Yazoo, etc., R. Co.,
127 C. C. A. 411, 210 Fed. 849; S.C,
137 C. C. A. 567, 222 Fed. 29.

Whether plaintiff assumed the risk
of an explosion from a glass indicator
tube of a lubricator was for the jury
where the evidence shows a substitu-
tion of the original tube which had
been tested for tensile strength by a
pressure of 300 pounds, by one fur-
nished by the defendant, not shown
to have been tested and which ex-
ploded after eight days’ use at 145
pounds pressure. Sufficient and in-
sufficient tubes being the same in ap-
pearance and a test required to deter-
187

ASSUMPTION OF RISK.

§ 75

due care would have had knoweldge,®8 or whether he appreciated the dan-

mine their sufficiency. Plaintiff hav-
ing no means of making this test could
assume one furnished was sufficient
until he acquired knowledge to the
contrary, and knowledge not being
shown. Woodruff v. Yazoo, etc, R.
Co., 127 C. C. A. 411, 210 Fed. 849; S.
C., 187 C. C. A. 567, 222 Fed. 29.

Nor is there any distinction between
an obligation imposed by the common
law and one imposed by statute, re-
quiring a holding that if with knowl-
edge of the defect one continues to
work with a defective instrument fur-
nished him in violation of a common-
law obligation, he assumes the risk as
matter of law but if the defective ap-
pliance is furnished in violation of
statutory obligation he does not as
matter of law assume the risk even
though he had knowledge of the risk
arising from the master’s failure to
comply with the statutory require-
ment. New York, etc., R. Co. v. Viz-
vari, 126 C. C. A. 632, 210 Fed. 118, 125.

68. United States—Chesapeake, etc.,
R. Co. v. De Atley (U. S.), 36 S. Ct.
564; Erie R. Co. v. Jacobus, 137 C. C.
A. 151, 221 Fed. 335.

Georgia.—Kirbo v. Southern R. Co.,
16 Ga. App. 49, 84 S. E. 491.

South  Carolina—Padgett v. , Sea-
board, etc., Railway, 99 S. C. 364, 83
S. E. 633, affirmed in 35 S. Ct. 481.

Texas—Missouri, etc, R. Co. w.
Bunkley (Tex. Civ. App.), 153 S. W.
937, 942.

Wisconsin—Rowlands v. Chicago,
etc, R. Co., 149 Wis. 51, 185 N. W.
156.

An engineer does not assume the
risk of a open pit in an unlighted
roundhouse unless he knew thereof,
which is not shown as a matter of
law, when he generally came into the
yards at night and left early in the
morning, his usual duties not requiring
him to go inside of the roundhouse.
Padgett v. Seaboard, etc., Railway, 99
S. C. 364, 83 S. E. 633, affirmed in 35
S. Ct. 481.

It is a question for the jury whether
an employee assumes the risk of
boarding a fast moving train, as this
is an extraordinary risk and depend-
ent upon whether he knew that the
speed was excessive. The evidence
showing that as it was required of him
to board the train he had a right to as-
sume it would be running at such a
speed as to enable him safely to do
so and that standing as he was facing
the train, accurate judgment as to its
speed could not be formed. Chesapeake,

etc, R. Co. vu. De Atley (U. S.), 36
S. Ct. 564.

Where plaintiff when firing on a
passenger train was injured by a mail
crane, whether he assumed the risk
was for the jury, he having testified
that it was his duty to look out and
that he had no knowledge of the ex-
istence of a mail crane at this special
point. He previously, being employed
on freight trains when cranes were
generally not used and backed from
the right of way. Rowlands v. Chi-
cago, etc., R. Co., 149 Wis. 51, 135 N.
W. 156.

Whether, after discovering the in-
sufficiency of light, the employee as-
sumed the extra risk thereby result-
ing, by undertaking to perform his du-
ties as a switchman near and around
dangerous tracks, notwithstanding the
imperfect light, would be a question
of fact for determination by a jury,
depending in part upon how long this
insufficiency existed immediately prior
to the injury, and upon when the dis-
covery was or could have been made
by the plaintiff, and also upon his lo-
cation at the time the light failed, and
whether, under the exigencies of the
situation, it was then possible for him
to remove himself from the danger
zone to a place of safety, or whether
the employee was necessarily so en-
grossed in the efficient and proper dis-
charge of his duties as to render him
oblivious to a partial failure of the
light. Kirbo v. Southern R. Co., 16
Ga. App. 49, 84 S. E. 491.

In St. Louis, etc., R. Co. v. Conley,
110 C. C. A. 97, 187 Fed. 949, 955,
where the defendant sought to defeat
the action on the ground of assumed
risk, when the injuries were due to
upright post in a tunnel so placed as
‘to leave a small clearance only the
court said: “But it is said that Conley
was familiar with the tunnel, having
passed through it many times, there-
fore he assumed the risk. Without de-
ciding whether § 4 of the Employers’
Liability Act abolishes the assumption
of risk in cases like the present, and
viewing the case from a point most
favorable to the defendant, we do not
think the evidence sufficient to war-
rant the court in saying as a matter
of law that he realized and appreciated
the danger, or that the danger was
so patent and obvious that he would
be conclusively presumed to have
known it. The testimony of a num-
ber of expert witnesses on the part of
both the plaintiff and defendant
tended to show that, because of the
FEDERAL EMPLOYERS LIABILITY ACT. 188

§ 75
ger,®® or the risk was such that a man of ordinary prudence would not re-
main in the employment,” or a train movement was merely an ordinary
movement,?7! or the work of loading cars was the usual and ordinary
method,?2 or in using a road engine for switching,’? an employee assumed
the risk of injury from such, are for the jury.

A servant does not assume the risk of the negligent failure to furnish
suitable appliances to perform his work; but continuance in the service with
knowledge of the defect is a waiver of the negligence and the risk is as-
sumed in spite thereof; but if on complaint there is a promise to repair,
whether such risk is assumed, is for the jury.74 Thus it cannot be said as
a matter of law that an employee assumes the risk of injury arising from
the absence of a guard glass on a water gauge of a locomotive boiler, when
after complaint to a proper party of its absence and a request for one, plain-
tiff was told that none were on hand, but one would be obtained and in the
meantime to run the locomotive as it was, when the danger of the explosion
of the water glass, which normally would withstand the pressure to which
it was subjected, but which probably might explode at sometime near or
remote, was not imminent, or immediately threatening.”

But where the uncontroverted evidence discloses the fact, that the danger
was apparent to an ordinarily prudent person, and that the services were
rendered without complaint, the defense of assumption of risk is conclusively
established, and there is no question for the jury, and the court should in-
struct the jury to return a verdict for the employer.“® Thus where it is
manifest that, even if a wet and slippery condition of a pipe on a water
column was attributable to the negligence of the carrier, if the danger to
which plaintiff subjected himself in attempting to make use of it in descend-

swaying motion of the engine running
over a rough track, it was impossible
to ascertain the distance structures
were from the track with any degree
of accuracy, even in the daytime, and
the conditions here were much less
favorable. The engine was being op-
erated through a dark and lengthy
tunnel at a speed of from 18 to 20
miles an hour, and the posts covered
not more than 30 feet of space, and
would be passed at that rate of speed
in a little more than a second of time.
In addition to this, as shown by the
condition of the engine after coming
out of the tunnel, an emergency had
arisen which required the engineer’s
immediate attention. As stated by
one of the witnesses, who was a lo-
comotive engineer: ‘It might be death
to look out of the cab, and death not
to look out when the injecter is not
working properly” We think the
question was properly left to the
jury.”

69. Roach wv. Great Northern R. Co.
(Minn.), 158 N. W. 232.

70. New York, etc, R. Co. wv. Viz-
vari, 126 C. C. ‘A. 632, 210 Fed. 118.

71. Kentucky—Cincinnati, etc, R.
Co. v. Goldston, 156 Ky. 410, 161 S.
W. 246.

Whether the plaintiff, who was in-
jured while crossing defendant’s tracks
in the course of his duties by the
violent and extraordinary movement
of a string of cars without warn-
ing, assumed the risk of such injury,
was for the jury. Great Northern R.
Co. v. Mustell (C. C. A.), 222 Fed. 879.

72. Illinois Cent. R. Co. v. Porter,
125 C. C. A. 55, 207 Fed. 311, 314.

73. Louisville, etc., R. Co. v. Lank-
ford, 126 C. C. A. 247, 209 Fed. 321,
323.

74. Same—On promise to repair.—
Lorick v. Seaboard, etc., Railway (S.
C.), 86 S. E. 675.

75. Seaboard, etc., Railway v. Hor-
ton (U. &.), 36 S. Ct. 180.

76. Question for court.—St. Louis,
etc. R. Co. v. Snowden (Okla.), 149
Pac. 1083.
189 ASSUMPTION OF RISK. § 75

ing from a water column was so obvious and imminent that an ordinarily
prudent person could not, under the circumstances, have failed to know and
appreciate it, the giving of the peremptory instruction by the trial court was
not error.*7 And uncontradicted evidence that a brakeman moved a heavy
box of machinery alone, because the crew was short handed and as soon as
he complained was given assistance, shows assumption of risk as a matter
of law.78 And where the evidence shows that an engineer who was killed
in an accident by the cab of his engine striking a coal car that had not been
placed clear of the lead track, the car being situated on the left side of the
engine, that occupied by the fireman, of whom he had inquired whether or
not it would clear the engine and at first received an affirmative reply but
afterwards the fireman discovering that it would not clear so notified the
engineer and jumped from the engine, the engineer started for that side
of the engine to ascertain for himself the real conditions and was killed
when the engine struck the car. This was held not to show assumption of
risk for want of knowledge of the danger."®

77. Davis v. Chesapeake, etc., R. Co., 79. Yazoo, etc, R. Co. v. Wright,
166 Ky. 490, 179 S. W. 422, 425. 125 C. C. A. 25, 207 Fed. 281, affirm-

78. St. Louis, etc, R. Co. v. Snow- ing 197 Fed. 94, affirmed in 35 S. Ct.
den (Okla.), 149 Pac. 1083, 1085. 130.
CHAPTER XII.

NATURE OF CAUSE OF ACTION—ABATEMENT, SURVIVAL AND REVIVAL.

1. General Nature; Survival, § 76.

2. Revival, § 77.

3. Only One Recovery for Same Injury, § 78.
4. Effect When Death Instantaneous, § 79.

§ 76. General Nature; Survival.—When considering the right of the
administrator of one who died of painful injuries to recover damages for

such injuries, before the amendment of 1910 in Garrett v. Louisville, etc.,
R. Co., 235 U. S. 308, 59 L. Ed. 242, 35 S. Ct. 32, 33, the court said:

“Tt is now definitely settled that the act declared two distinct and inde-
pendent liabilities resting upon the common foundation of a wrongful
injury: (1) liability to the injured employee for which he alone can re-
cover; and (2), in case of death, liability 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 to the pecuniary loss
and damage resulting to them by reason of the death.”

Therefore as the first section of the act of 1908, omits any provision on
the subject of the survival of the right of action given the injured employee,
but, in case of the death of such employee from his injury, creates‘a new
and distinct right of action for the benefit of the dependent relatives named
in the statute; as the act stood prior to the enactment of § 9, it was held
under the common-law rule, that, upon the death of the injured employee,
the right of action given him died also, and that there could be no recovery

of damages for his conscious suffering in an action for his death.!

1, General nature of action; survival.
—United States—Michigan Cent. R.
Co. v. Vreeland, 227 U. S. 59, 67, 57
L. Ed. 417, 33 S. Ct. 192, Ann. Cas.
1914C, 176; St. Louis, etc, R. Co. v.
Hesterly, 228 U. S. 702, 57 L. Ed. 1031,
33 S. Ct. 703, L. R. A. 1915E, 706;
American R. Co. v. Didricksen, 227 U.
S. 145, 57 L. Ed. 456, 33 S. Ct. 224,
225; St. Louis, etc, R. Co. v. Seale,
229 U. S. 156, 57 L. Ed. 1129, 33 S. Ct.
651, Ann. Cas. 1914C, 156; Fulgham v.
Midland Valley R. Co. (C. C.), 167
Fed. 660; Walsh v7. New York, etc., R.
Co. (C. C.), 173 Fed 494, affirmed in
32 S. Ct. 169; 1003; Cain 7. Southern
R. Co. (C. C.), 199 Fed. 211; Garrett
v. Louisville, etc, R. Co. 235 U. S.
308, 59 L. Ed. 242, 35 S. Ct. 32; St.
Louis, etc. R. Co. v7. Craft, 237 U. S.
648, 59 L. Ed. 1160, 35 S. Ct. 704; Ho-
gan v. New York, etc., R. Co., 139 C.
C. A. 328, 223 Fed. 890; Thomas v.

In St.

Chicago, etc., R. Co. (D. C.), 202 Fed.
766.

MichiganJorgenson v. Grand Rap-
ids, etc, R. Co. (Mich.), 155 N. W.
535.

Montana.—Melzner v. Northern Pac.
R. Co., 46 Mont. 277, 127 Pac. 1002, L.
R. A. 1915B, 811.

In Fulgham v. Midland Valley R. Co.
(C. C.), 167 Fed. 660, 663, it is said:
“But it will be observed on the other
hand that the act makes no provisions
for the survival of that action, so
given, for an injury sustained, in the
event of the death of the injured em-
ployee.” While that case was re-
versed (Midland Valley R. Co. wv. Ful-
gham, 104 C. C. A. 151, 181 Fed. 91,
95), yet the reason assigned for the re-
versal was the failure to show negli-
gence of the company; the question of
survival of action not being consid-
ered. So St. Louis, etc, R. Co. wu

190
191 NATURE OF ACTION—ABATEMENT, SURVIVAL AND REVIVAL,

§ 76

Louis, etc., R. Co. v. Craft, 237 U. S. 648, 59 L, Ed. 1160, 35 S. Ct. 704, 705,
the court said:

“At first there was no provision for a survival of the right given to the
injured person, and so, under the operation of the rule of the common
law, it would die with him.”

Moreover, the cause of action being given by a federal statute, there
could be no recourse to state statutes in order to determine whether it sur-
vived or not. It could not be pieced out by resorting to the local statutes of
the state in which the proceeding was had or in which the injury occurred ;
the question of survival not being one of procedure, but one which depends
on the substance of the cause of action.2 It is true that Rev. Stat., § 955
(U. S. Comp. Stat. 1901, p. 697), provides that: ‘When either of the par-
ties, whether plaintiff, or petitioner, or defendant, in any suit in any court
of the United States, dies before final judgment, the executor or adminis-
trator of such deceased party may, in case the cause of action survives by
law, prosecute or defend any such suit to final judgment.” But this section
does not itself provide what causes of action shall survive, and in the ab-
sence of any other controlling statute, leaves the matter to the common law.
As to cases arising under the act of April 22, 1908, as originally enacted
therefore, the case stood that the state statutes relating to survival were in-
applicable; there was no general federal statute; and the particular statute
in question, the act of 1908, said nothing about survival. Thus remitted to
the common law, at which survival is out of the question, the courts were

compelled to hold that the cause of action did not survive.?

Duke, 112 C. C. A. 564, 192 Fed. 306,
310, in effect denied the survival
theory under the act in question say-
ing: “The rule is that compensatory
damages only can be awarded in such
cases as this. The actual pecuniary
loss resulting to the widow and chil-
dren occasioned by the death of the
father is all that can be allowed.”
Garrett v. Louisville, etc., R. Co., 117
C. C. A. 109, 197, Fed. 715, 719, affirmed
in 35 S. Ct. 32. /

“Nothing is better settled than that,
at common law, the right of action
for an injury to the person is extin-
guished by the death of the party in-
jured. The rule, ‘Actio personalis
moritur cum persona’ applies, whether
the death from the injury be instanta-
neous or not. The act of 1908 does
not provide for any survival of the
right of action created in behalf of
an injured employee. That right of
action was therefore extinguished.
The act has been many times so con-
strued by the circuit courts. We cite
a few of the cases: Fulgham v. Mid-
land Valley R. Co. (C. C.), 167 Fed.
660; Walsh v. New York, etc., R. Co.
(C. C.), 173 Fed. 494, 495.” Michigan

Thus as the

Cent. R. Co. v. Vreeland, 227 U. S. 59,
57 L. Ed. 417, 33 S. Ct. 192, 195, Ann.
Cas. 1914C, 176.

2. Same—Not aided by recourse to
State statutes.—Michigan Cent. R. Co.
v. Vreeland, 227 U. S. 59, 57 L. Ed.
417, 33 S. Ct. 192, 194, Ann. Cas. 1914C,
176; Walsh v.. New York, etc., R. Co.
(C. C.), 173 Fed. 494. See, also,
Schreiber v. Sharpless, 110 U. S. 76,
80, 28 L. Ed. 65, 3 S. Ct. 423; Balti-
more, etc, R. Co. v. Joy, 173 U. 8.
226, 230, 43 L. Ed. 677, 19 S. Ct.
387; United States v. De Goer (D. C.),
38 Fed. 80; United States v. Riley (D.
C.), 104 Fed. 275.

8. No survival under act as origi-
nally enacted.—United States—Michi-
gan Cent. R. Co. v. Vreeland, 227 U.
S. 59, 57 L. Ed. 417, 33 S. Ct. 192, 195,
Ann. Cas. 1914C, 176; Fulgham v. Mid-
land Valley R. Co. (C. C.), 167 Fed.
660; Walsh v. New York, etc., R. Co.
(C. C.), 173 Fed. 494, 495.

Alabama.—Louisville, etc., R. Co. v.
Fleming (Ala.), 69 So. 125.

Montana. — Melzner v. Northern
Pac. R. Co., 46 Mont. 277, 127 Pac.
1002, L. R. A. 1915B, 811.
192 FEDERAL EMPLOYERS’ LIABILITY ACT. § 76

cause of action which was created in behalf of the injured employee did not
survive his death, nor pass to his representatives, the act, in case of the
death of such an employee from his injury, created a new and distinct right
of action for the benefit of the dependent relatives named in the statute.4
Such survival of the injured employee’s right of action was expressly pro-
vided for by § 2 of the later amendatory act of April 5, 1910, adding § 9 as
a new section to the Act of April 22, 1908. This, however, was held not to
enlarge the measure of recovery in cases arising under the act previous to
the amendment, but they were still controlled entirely by provisions of the
Act of 1908.5 Clearly the sole purpose of adding § 9 was to provide for the
survival of the action upon the death of the injured employee, since by that
section the person who must bring or continue the action is the same, and
the beneficiaries the same, as provided by the act before it was added.6 The
only difference is that since the addition of § 9, damages, in case the injury
results in death, may now be recovered for the injury and suffering sus-
tained by the employee as well as for his death, and for the benefit of the
beneficiaries named,’ and not for the benefit of his estate® as intimated in

some cases.®

4, Independent and distinct right of
beneficiaries. — United States—Ameri-
can R. Co. uv. Didricksen, 227 U. S.
145, 57 L. Ed. 456, 33 S. Ct. 224; Gar-
rett v. Louisville, etc, R. Co., 235 U.
S. 308, 59 L. Ed. 242, 35 S. Ct. 32, af-
firming 197 Fed. 715, 117 C. C. A.
109; Hogan v. New York, etc., R. Co.,
139 C. C. A, 328, 223 Fed. 890.

Connecticut—Farley v. New York,
etc. R. Co., 87 Conn. 328, 87 Atl. 990.

Washington—Fogarty v. Northern
Pac. R. Co., 85 Wash. 90, 147 Pac. 652.

5. Survival under amended act—
Cases previously arising —St. Louis,
etc., R. Co. v. Hesterly, 228 U. S. 702,
57 L. Ed. 1031, 33 S. Ct. 703, L. R. A.
1915E, 706; Cain v. Southern R. Co.
(C. C.), 199 Fed. 211, 212.

6. Sole purpose of § 9 to provide for
survival.__A labama. — Louisville, etc.,
R. Co. v. Fleming (Ala.), 69 So. 125.

Montana. — Melzner v. Northern
Pac. R. Co. 46 Mont. 277, 127 Pac.
1002, L. R. A. 1915B, 811.

Tennessee. — Carolina, etc., Railroad
v. Shewalter, 128 Tenn. 363, 161 S. W.
1136, Ann. Cas. 1915C, 605.

Wisconsin—Calhoun v. Great North-
ern R. Co: (Wis.), 156 N. W. 198.

7. Same—Effect as to damages re-
coverable.—Northern Pac. R. Co. v.
Maerkl, 117 C. C. A. 237, 198 Fed. 1.
See, also, Moffett v. Baltimore, etc., R.
Co., 135 C. C. A. 607, 220 Fed. 39; St.
Louis, etc., R. Co. v. Conarty, 106 Ark.
421, 155 S. W. 93, reversed on other
grounds in 35 S. Ct. 785. As to dam-
ages recoverable, see post, § 11 (12).

Right to recover both in same dec-
laration.—In Louisville, etc., R. Co. v.
Fleming (Ala.), 69 So, 125, the court
questioned the right to recover for
pain and suffering of the deceased and
damages to the beneficiaries on the
same declaration, setting out the lia-
bility for each in separate counts, but
held that the court having submitted
the issues and the defendant made no
objection to the joinder, or motion to
elect, he could not raise the question
first on appeal.

8. Recovery not for estate——United
States.—Garrett v. Louisville, etc. R.
Co., 235 U. S. 308, 59 L. Ed. 242, 35
S. Ct. 32; Thomas v. Chicago, etc., R.
Co. (D. C.), 202 Fed. 766; Hogan v.
New York, etc. R. Co. 139 C. C. A.
328, 223 Fed. 890; Louisville, etc. R.
Co. vw. Stewart (U. S.), 36 S. Ct. 586.

Georgia—Allen v. Napier (Ga.), 85
do. E. 1013.

Kentucky.—Illinois Cent. R. Co. wv.
Doherty, 153 Ky. 363, 155 S. W. 1119,
47 L. R. A., N. S., 31; Chesapeake, etc.,
R. Co. v. Dwyer, 157 Ky. 590, 163 S.
W. 752.

9. See Fulgham v. Midland Valley
R. Co. (C. C.), 167 Fed. 660, 664; Cain
v. Southern ,R. Co. (C. C.), 199 Fed.
211, 212; St. Louis, etc., R. Co. v. Hes-
terly, 98 Ark. 240, 185 S. W. 874, 881,
reversed in 33 S. Ct. 703; Midland Val-
ley R. Co. v. Lemoyne, 104 Ark. 327,
148 S. W. 654; Louisville, etc., R. Co.
v. Rhoda (Fla.), 71 So. 369.
193 NATURE OF ACTION—ABATEMENT, SURVIVAL AND REVIVAL. §§ 76-77

The Supreme Court of the United States has fully and clearly explained
the effect and operation of these two sections where in St. Louis, etc., R. Co.
v. Craft, 237 U. S. 648, 59 L. Ed. 1160, 35 S. Ct. 704, 706, the court said:

“No change was made in § 1. Taylor wv. Taylor, 232 U. S. 363, 370, 58
L. Ed. 638, 34 S. Ct. 350,6 N. C. C: A. 436. It continues, as before, to
provide for two distinct rights of action: one in the injured person for
his personal loss and suffering where the injuries are not immediately
fatal, and the other in his personal representative for the pecuniary loss
sustained by designated relatives where the injuries immediately or ulti-
mately result in death. Without abrogating or curtailing either right,
the new section provides in exact words that the right given to the in-
jured person ‘shall survive’ to his personal representative ‘for the bene-
fit of’ the same relatives in whose behalf the other right is given.
Brought into the act by way of amendment, this provision expresses
the deliberate will of congress. Its terms are direct, evidently carefully
chosen, and should ibe given effect accordingly. It does not mean that
the injured person’s right shall survive to his personal representative
and yet be unenforceable by the latter, or that the survival shall be for
the benefit of the designated relatives, and yet be of no avail to them.
On the contrary, it means that the right existing in the injured person
at his death—a right covering his loss and suffering while he lived, but
taking no account of his premature death or of what he would have
earned or accomplished in the natural span of life—shall survive to his
personal representative to the end that it may be enforced and the pro-
ceeds paid to the relatives indicated. And when this provision and § 1
are read together the conclusion is unavoidable that the personal repre-
sentative is to recover on behalf of the designated beneficiaries, not
only such damages as will compensate them for their own pecuniary
loss, but also such damages as will be reasonably compensatory for the
loss and suffering of the injured person while he lived. Although orig-
inating in the same wrongful act or neglect, the two claims are quite
distinct, no part of either being embraced in the other. One is for the
wrong to thé injured person, and is confined to his personal loss and
suffering before he died, while the other is for the wrong to the bene-
ficiaries, and is confined to their pecuniary loss through his death. One
begins where the other ends, and a recovery upon both in the same ac-
tion is not a double recovery for a single wrong, but a single recovery
for a double wrong.”

§ 77. Revival.—The employee having begun the action in his lifetime,
if he should die before it is te1minated, it may be revived in the name of his
personal representative and a recovery had for his injury, also his death if
that resulted:-from the injury.1° So where an employee, after his injuries,
became insane and suit was brought during his lifetime by his committee in
which it was alleged that plaintiff had a wife and a minor child dependent
upon him, a petition for revival which makes the original petition a part
thereof and alleged a survival of the action for the benefit of his estate, is

10. Revival of action——In Woodruff instituted the suit, but died and his
v. Yazoo, etc. R. Co. 127 C. C. A. widow, as administrator, continued
411, 210 Fed. 849, the employee had _ the action.

Fed Act—13
§§ 77-78 FEDERAL EMPLOYERS LIABILITY ACT. 194
not objectionable on the ground that the court had no right to revive the
action for the benefit of the estate for the real action was stated in the orig-
inal petition, the cause of action did survive to the representative for the
benefit of the widow and minor child and it was clearly established that they
were entitled to whatever recovery might be had. The rights of the parties
being clearly shown it is proper to refuse to reverse the judgment on the
ground that the petition failed to allege the survival of.a widow and minor
child or to ask a revival for their special benefit or that the order granting

the same did not so provide.1!

§ 78. Only One Recovery for Same Injury.—It is expressly pro-
vided by § 9 that there shall be only one recovery for the same injury.
Damages of both kinds, therefore, must be recovered in one and the same
action. This is the plain meaning of the act.12 Nor is it proper to require
the plaintiff to elect whether the action will be maintained to recover for the
pain and ‘suffering of the deceased, or the pecuniary loss to the beneficia-
ries.13

It has been contended that the right to one recovery under this section
was a recovery either of the pain and suffering endured by the decedent or
the pecuniary loss to the next of kin, and not one recovery for both of these
in the same action. But the contention was declared unsound.!4 As had
congress intended that the personal representative should make an election
between the two rights of action and sue upon one only, it is not easy to
believe that it would have chosen the words in this clause to express that
intention.> In St. Louis, etc., R. Co. v. Craft, 237 U. S. 648, 59 L. Ed.
1160, 35 S. Ct. 704, 707, the court said:

“We think this clause, as applied to cases like the present, is not intended
to restrict the personal representative to one right to the exclusion of

11. Same—Sufficiency of petition.— “There was no error in refusing to

Cincinnati, etc., R. Co. v. Claybourne
(Ky. App.), 183 S. W. 903.

_ 12 Only one recovery for same in-
jury—United States—Northern Pac.
R. Co. v. Maerkl, 117 C. C. A. 237,
198 Fed. 1, 6; Oliver v. Northern Pac.
R. Co. (D. C.), 196 Fed. 432; St. Louis,
etc., R. Co. v. Hesterly, 228 U. S. 702,
57 L. Ed. 1031, 33 S. Ct. 703, L. R.
A. 1915E, 706; St. Louis, etc., R. Co.
v. Craft, 237 U. S. 648, 59 L. Ed. 1160,
35 S. Ct. 704.

Arkansas —St. Louis, etc, R. Co. v.
Conarty, 106 Ark. 421, 155 S. W. 93,
reversed on other grounds in 35 S.
Ct. 785.

__Michigan—Jorgenson v. Grand Rap-
ids, etc, R. Co. (Mich.), 155 N. W.
535,

13. Same—Requiring election —St.
Louis, etc., R. Co. v. Conarty, 106 Ark.
421, 155 S. W. 93, 94, reversed on other
grounds in 35 S. Ct. 785.

require the appellee to elect between
the cause of action for the benefit of
the estate and that for the pecuniary
loss to the widow and next of kin.
Kansas, etc., R. Co. v. Leslie, 112 Ark.
305, 167 S. W. 83, Ann. Cas. 1915B,
834; St. Louis, etc., R. Co. v. Conarty,
106 Ark. 421, 155 S. W. 93, reversed
on other grounds in 35 S. Ct. 785.”
St. Louis, etc, R. Co. v. Rodgers
(Ark.), 176 S. W. 696, 698.

14. St. Louis, etc, R. Co. v. Craft,
115 Ark. 483, 171 S. W. 1185, affirmed
in 35 S. Ct. 704; St. Louis, etc., R. Co.
v. Conarty, 106 Ark. 421, 155 S. W. 93,
reversed on other grounds in 35 S.
Ct. 785; Kansas, etc. R. Co. v. Les-
lie, 112 Ark. 305, 167 S. W. 83, Ann.
Cas. 1915B, 834, reversed in 35 S. Ct.
844,

15. St. Louis, etc, R. Co. v. Craft,
p37 U. S. 648, 59 L. Ed. 1160, 35 S.
Ct. 704.
195 NATURE OF ACTION—ABATEMENT, SURVIVAL AND REVIVAL.

§§ 78-79

the other, or to require that he make a choice between them, but to
limit him to one recovery of damages for both, and so to avoid the need-
less litigation in separate actions of what would better be settled once
for all in a single action. This view gives full effect to every word in
the clause, and ascribes to it a reasonable purpose without bringing it
into conflict with other provisions the terms of which are plain and
unequivocal.”

§ 79. Effect When Death Instantaneous.—When the death of an
employee is instantaneous with the injury there can be no survival, of the
right to recover for pain and suffering; 1° on the other hand, the fact that
death is instantaneous does not preclude a recovery for pecuniary loss to
the beneficiaries, on the theory that no cause of action ever existed,in the
deceased, and therefore there was none to survive.

It may be taken as well-settled law that'no right of action passes to the
personal representatives of a deceased person where the killing was instan-
taneous, under statutes which provide simply in general terms for a sur-
vival of causes of action for personal injury. Statutes which have been con-
strued to the contrary contained some language peculiar to themselves, and
are not plain and direct in their terms as is the amendatory act of congress.
The act of 1908 conferred a right of action upon employees suffering injury,
and the amendment simply provided that this right of action should sur-
vive. The amendment undertook to deal with the cause of action which had
accrued, and which otherwise would have been lost by the death of the
employee. The amendment was passed to meet the effect of the decisions
in Fulgham v. Midland Valley R. Co.18 and Walsh v. New York, etc., R.
Co.19 And it was not the intention of congress by this amendment to create
a new cause of action, but only to preserve one heretofore conferred upon
the employees by the act of 1908. The act of 1908 cannot be construed as
having conferred upon an employee or his estate an action for recovery of
damages, where his death was instantaneous. In such cases, the right of
action was conferred upon designated beneficiaries. Only the quick can be
described as suffering. The dead may have suffered, but are not suffering.
When injury and death of an employee are simultaneous, there occurs no
period in which he may be said to be suffering, no span of life in which this
right of action may accrue. Never having existed, such right of course
cannot survive.?°

Though the reports of the judiciary committees of the House and Senate
indicate that the purpose of the amendment of 1910 was to make the remedy
of the employee as broad and comprehensive as the remedy afforded to him
and his estate in any of the states; we must, however, look primarily to

16. Effect when death instantane- 19. (C. C.), 173 Fed. 494.

ous.—Carolina, etc., Railroad v. Shew-
alter, 128 Tenn. 363, 161 S. W. 1136,
Ann. Cas. 1915C, 605, affirmed in 239
U. S. 630, 36 S. Ct. 166, no op.

18. (C. C.), 167 Fed. 660.

20. Carolina, etc., Railroad v. Shew-
alter, 128 Tenn. 363, 161 S. W. 1136,
1142, Ann. Cas. 1915C, 605, affirmed
in 239 U. S. 630, 36 S. Ct. 166, no op.
196

§ 79 FEDERAL EMPLOYERS LIABILITY ACT.
the language used by the lawmakers in the, statute enacted. If the language
there used is plain, and there is no cause for construction or interpretation,
there is no justification in drawing upon extraneous sources for the mean-
ing of the statute.??

When a person lives an appreciable length of time after receiving an in-
jury through a defendant’s negligence, even though in a state of uncon-
sciousness, his cause of action survives under § .9 of the act, added by act
April 5, 1910.22. Thus where an employee lived for fully thirty minutes
after an injury, a recovery for his suffering during this time is justified.?8

In St. Louis, etc., R. Co. v. Craft, 237 U. S. 648, 59 L. Ed. 1160, 35 S. Ct.

704, the court said:

“The defendant insists * * *

anything for pain and suffering of the decedent,

that the recovery could not include

* * * because

there was no evidence that he endured any conscious pain or suffering.

The record discloses that the ‘decedent survived his injuries

more than a half hour, and that they were such as were calculated to
cause him extreme pain and suffering, if he remained conscious. A
car passed partly over his body, breaking some of the bones, lacerating
the flesh and opening the abdomen, and then held him fast under the

21. Same—Construing act from ex-
traneous source to embrace survival
for instant death—Carolina, etc., Rail-
road v. Shewalter, 128 Tenn. 363, 161
S. W. 1136, 1142, Ann. Cas. 1915C, 605,
affirmed in 239 U. S. 630, 36 S. Ct.
no op.

22. Momentary survival after injury.
—Capital Trust Co. v. Great Northern
R. Co., 127 Minn. 144, 149 N. W. 14,
L. R. A. 1915B, 708.

In the case of Kellow v. Central
Iowa R. Co., 68 Iowa 470, 23 N. W.

740, 27 N. W. 466, 56 Am. Rep.
858, the jury answered in the af-
firmative the question, “Was the

death of the deceased of that na-
ture commonly known as_ instant
death?” Nevertheless the court held
that such finding did not determine
that a cause of action did not accrue
to him before his death. The deceased
was on a railroad train that was
wrecked; when found in the wreck he
breathed, but died before he could be
removed. The court said: “If he sur-
vived the injury but for a single mo-
ment, the cause of action accrued to
him as certainly as it would have done
if he had lived for a month or a year
thereafter.” Capital Trust Co. v.
Great Northern R. Co., 127 Minn. 144,
149 N. W. 14, 16, L. R. A. 1915B, 708.

In Kearney v. Boston, etc., R. Corp.
(Mass.), 9 Cush. 108, a cause of ac-
tion was held not to survive where “it
is in evidence that there was only a
momentary, spasmodic struggle, and

the death instantaneous.” In the later
case of Hollenbeck v. Berkshire R.
Co. (Mass.), 9 Cush. 478, Chief Jus-
tice Shaw says: “The accruing of the
right of action does not depend upon
intelligence, consciousness, or ‘mental
capacity of any kind, on the part of
the sufferer.” Chief Justice Bigelow
in Bancroft v. Boston, etc, R. Corp.
(Mass.), 11 Allen 34, says: “The con-
tinuance of life after the accident, and
not insensibility and want of con-
sciousness, is the test by which to de-
termine whether a cause of action
survives.” “If the intestate lived after
he was struck, though the time might
be brief, the cause of action survived.”
Tully v. Fitchburg R. Co., 134 Mass.
499. To the same effect is St. Louis,
etc., R. Co. v. Dawson, 68 Ark. 1, 56
S. W. 46; Beeler v. Butte, etc. De-
velop. Co., 41 Mont. 465, 110 Pac. 528;
Kellow v. Central Iowa R. Co., 68
Iowa 470, 23 N. W. 740, 27 N. W.
466, 56 Am. Rep. 858; Oliver v.
Houghton County St. R. Co., 134 Mich.
367, 96 N. W. 434, 104 Am. St. Rep.
607, 3 Am. & Eng. Ann. Cas. 53; Ely
v. Detroit United Railway, 162 Mich.
287, 127 N. W. 259. The case of Dil-
lon v. Great Northern R. Co., 38 Mont.
485, 100 Pac. 960, is not in point for
there was a stipulation that death was
instantaneous.

23. St. Louis, etc., R. Co. v. Craft,
115 Ark. 483, 171 S. W. 1185, affirmed
in 35 S. Ct. 704.
197 NATURE OF ACTION—ABATEMENT, SURVIVAL AND REVIVAL. § 79

wheels with a brake rod pressing his face to the ground. It took fif-
teen minutes to lift the car and release his body, and fifteen minutes
more to start him to the hospital in an ambulance. It was after this
that he died, the time not being more definitely stated. As to whether
he was conscious and capable of suffering pain the evidence was con-
flicting. Some of the witnesses testified that he was ‘groaning every
once in a while,’ and that when they were endeavoring to pull him
from under the car ‘he would raise his arm’ and ‘try to pull himself,’
while others testified that they did not notice these indications of con-
sciousness, and that he seemed to be unconscious from the beginning.
The jury found that he was conscious, and both state courts accepted
that solution of the dispute. Of course, the question here is not which
way the evidence preponderated, but whether there was evidence from
which the jury reasonably could find that while he lived he endured
conscious pain and suffering as a result of his injuries. That question,
we are perstiaded, must be answered in the affirmative. But to avoid
any misapprehension it is well to observe that the case is close to the
border line, for such pain and suffering as are substantially contempo-
raneous with death or mere incidents to it, as also the short periods
of insensibility which sometimes intervene between fatal injuries and
death, afford no basis for a separate estimation or award of damages
under statutes like that which is controlling here.”

In a case under the act where there was testimony that plaintiff's intestate
after the injury moaned and breathed for ten minutes justified the court in
submitting the question of the survival of his cause of action to the jury,?4
because the theory of a survival of an action is not that there was a period
of time during which the deceased could have brought an action in his own
behalf.25 It is hard to understand, even in the absence of the light since
thrown upon the act of 1908 by judicial decisions, how such a construction
of the act could have been seriously contended for; and yet, in a case that
went to the Supreme Court of the United States, counsel for the defendant
railway company raised and argued the point, that the fact that the injured
employee survived his injuries for several hours operated to extinguish the
defendant’s liability, not only for the wrongful injury, but for the death
which ensued, on the theory that the act declared a single lability and gave
a cause of action to the injured employee, if he survived the accident, or,
in the event his death was instantaneous, and only in that event, a right of
action for the benefit of the persons named in the act. In other words, the
contention seems to have been that if the first-mentioned cause of action
once arose, the second could never come into existence, and the death of
the injured employee before institution of suit or recovery of judgment upon
said first-mentioned cause of action operated to defeat all liability whatso-
ever. The supreme court refused to adopt this senseless and narrow view,
and construed the act as giving a right of action, first, to the injured em-

24. Survival of injury as question 25. Capital Trust Co. v. Great
for jury.—Capital Trust Co. v. Great Northern R. Co., 127 Minn. 144, 149
Northern R. Co., 127 Minn. 144, 149 N. W. 14, 16, L. R. A. 1915B, 708.

N. W. 14, L. R. A. 1915B, 708.
§ 79 FEDERAL EMPLOYERS LIABILITY ACT. 198 *

ployee, which, prior to the Amendment of April 5, 1910, died with the per-
son in case of death before recovery therein; second, a new and independ-
ent cause of action, springing up in favor of certain named beneficiaries in
case of death before suit brought or recovery had upon the cause of action
first mentioned.?®

26. Survival as limited to cases 227 U. S. 59, 57 L. Ed. 417, 33 S. Ct
where death was instantaneous— 192, 193, Ann. Cas. 1914C, 176.
Michigan Cent. R. Co. v. Vreeland,
Conta» rF yw wie

CHAPTER XIII.

ParTIES ENTITLED TO SUE.

. Necessity of Appointment of Personal Representative, § 80.
. Action Maintainable Only by Personal Representative, § 81.

Amendment of Declaration or Complaint, § 82.

. Adoption of Proceedings by Personal Representative after Judgment, § 83.
. Doctrine as to Nonsuit, § 84.

. Former Judgment as Res Adjudicata, § 85.

. Suit by Foreign Personal Representative, § 86.

. Suit by Ancillary Administrator, § 87.

. Objections and Waiver, § 88.

§ 80. Necessity of Appointment of Personal Representative.—

The term “personal representative” means an executor or administrator,?
and in order to appoint such personal representative an administration pro-

ceeding is of necessity required.”

And as there must be such appointment,

in order to bring an action under the act, it can be secured, even though the

decedent left no other assets to be administered.®

In Gulf, etc., R. Co. v.

Beezley (Tex. Civ. App.), 153 S. W. 651, 652, the court said:

“The deceased having been killed while in the employ of appellant who
was then engaged in interstate commerce, this suit was brought by
appellee under the Federal Employers’ Liability Act, * * * under
which an action for the death of an employee must be brought by the
personal representative of the deceased. See Gulf, etc., R. Co. v. Les-
ter (Tex. Civ. App.), 149 S. W. 841. The contention on the part of
appellant is that if, ordinarily, no necessity existed for administration
upon the estate of the deceased, then no letters of administration could
be granted upon his estate for the sole purpose of enabling the surviv-
ing wife to bring this suit under said Federal Employers’ Liability Act.
This insistence has been held in this state to be untenable in the case of

_1. Meaning of “personal representa-
tive."—United States—Southern  R.
Co. v. Hawkins, 35 App. D. C. 313, 21
Am. & Eng. Ann. Cas. 926.
Louisiana—Penny v. New Orleans,
etc, R. Co., 135 La. 962, 66 So. 313.
Oklahoma.—Missouri, etc., R. Co. v.
Lenahan, 39 Okla. 283, 135 Pac. 383,
385.

2. Administration necessary to se-
cure personal representative.—Rivera

v. Atchison, etc., R. Co. (Tex. Civ.
App.), 149 S. W. 223.
3. Appointment necessary even

though no estate—United States.—
American R. Co. v. Birch, 224 U. S%.
547, 56 L. Ed. 879, 32 S. Ct. 603.
Tennessee-—Howard v. Nashville,
etc, R. Co. (Tenn.), 179 S. W. 380.

Texas.—Rivera v. Atchison, etc. R.
Co. (Tex. Civ. App.), 149 S. W. 223;
Eastern R. Co. v. Ellis (Tex. Civ.
App.), 153 S. W. 701; Gulf, etc, R.
Co. v. Beezley (Tex. Civ. App.), 153
S. W. 651; St. Louis, etc. R. Co. v.
Brothers (Tex. Civ. App.), 165 S. W.
488, writ of error granted in 170 S.
W. xx, no op.

“It will not do to say that, because
there is no estate of the decedent
other than the cause of action itself,
there can be no administration, and
hence no personal representative, for
the reason that it is now definitely
settled, we think, that the inchoate
right to the damages alone constitutes
a sufficient predicate for the adminis-
tration.” Eastern R. Co. v. Ellis (Tex.
Civ. App.), 153 S. W. 701, 708.

199
§ 80 FEDERAL EMPLOYERS LIABILITY ACT. 200

Rivera v. Atchison, etc., R. Co. (Tex. Civ. App.), 149 8. W. 223,
wherein it is said that, under the laws of this state, a cause of action
is property and an asset of the estate, and, being property and an asset
of the estate, the right to administration would, of necessity, follow;
the court in this connection quoting with approval from the opinion in
the case of Southern Pac. Co. v. De Valle Da Costa, 111 C. C. A. 417,
190 Fed. 689, as follows: ‘The enactment of a statute giving an action
for death and requiring that it shall be brought by a personal represent-
ative we think should be regarded as a conclusive recognition of the
right of administration to enforce such a claim. If a statute designates
the personal representative of the deceased as the proper plaintiff, to
limit the right to cases in which the deceased left assets other than the
right of action would introduce an unreasonable and arbitrary distinc-
tion. To hold that suit must be brought .in the state of Massachusetts
for causing death, if the deceased left property in the state, but that it
could not be brought if he had no property, would be to make a distinc-
tion in favor of persons who have estates, against persons who have no
estates—to deny the remedy to those most in need of it.’”

And in a case arising in Porto Rico, where there existed a local employ-
ers’ liability act when the federal statute was enacted, and which gave a
cause of action under certain conditions to the widow of the deceased, or to
his children or dependent parents, an action brought by the widow and only
son of the deceased was held by the lower court to have been properly
brought in the name of the only persons for whose benefit any recovery could
be had, and that the federal act was not to be construed as requiring a sur-
viving husband or wife, in the absence of any estate belonging to the de-
ceased, other than his right to sue, to have an administrator appointed solely
for the purpose of bringing the suit. In reversing the lower court on this
point, the Supreme Court of the United States in American R. Co. v. Birch,
224 U.S. 547, 56 L. Ed. 879, 32 S. Ct. 603, 606, followed in Missouri, etc.,
R, Co, vw Wulf, 226 U. 8, 570, 57 L. Ed. 355, 33 §, Ch, 135, 137, Ann, Cas.
1914B, 134, said:

“But the words of the act will not yield to such a liberal construction.
They are too clear to be other than strictly followed. They give an
_action for damages to the person injured, or, ‘in case of his death,
* * * to his or her personal representative.’ It is true that the
recovery of the damages is not for the benefit of the estate of the de-
ceased, but for the benefit ‘of the surviving widow or husband and
children.’ But this distinction between the parties to sue and the par-
ties to be benefited by the suit makes clear the purposes of congress. To
this purpose we must yield, even if we could say, as we cannot, that it
is not a better provision than to give the cause of action to those in re-
lation to the deceased. In the present case it looks like a useless cir-
cumlocution to require an administration upon the deceased’s estate,
but in many cases it might be much the simpler plan and keep the con-
troversy free from elements but those which relate to the cause of ac-
tion. But we may presume that all contending considerations were

taken into account and the purpose of congress expressed in the lan-
guage it used.”
201 PARTIES ENTITLED TO SUE. §§ 80-81

An employee killed in a state other than that in which the action is
brought, when he leaves a wife and children resident in the state of the
forum, they may have administration proceedings in the latter state.4

As an administrator may be appointed in the state where a non-resident
was killed in order to maintain an action there,®> so an employee, who is
a non-resident, injured in another state but died in the state in which the
action was brought may have an administrator appointed there though he
left no property, and the appointment is for the sole purpose of maintain-
ing an action under the federal act.¢ In this last case it was pointed out
that the mere fact that in such cases an insignificant amount of property is
generally considered sufficient upon which to base the administration pro-
ceedings, shows the unsubstantial and technical character of any other rule.
Nor is it material that the amount recovered is unavailable to the creditors
of the deceased in any manner for the payment of his debts but goes
solely to his widow and children or next of kin. The administrator being
appointed not solely for the benefit of creditors but to collect any assets
which may be due the estate.7

§ 81. Action Maintainable Only by Personal Representative.—In
view of the plain provisions of the federal act giving the right of action to
the personal representative of the deceased employee, it would seem that
no question could have arisen as to the proper party to bring the suit in
those cases in which the injury results in death; and yet several cases have
arisen in which the action was attempted to be brought by the widow or
next of kin, or some person other than the personal representative. By the
decisions in these same cases it is now settled as thoroughly as any point
could well be, that, as regards the proper party plaintiff, the federal act is
exclusive of and supersedes all state and territorial legislation, and that in
those cases in which the injury results in death the action must be brought
or continued by and in the name of the personal representative, and no one
else; and unless the action is so prosecuted, there can be no recovery under
the federal act.8

4. Venue of administration proceed-
ings.—Rivera v. Atchison, etc., R. Co.
(Tex. Civ. App.), 149 S. W. 223.

5. Right to administration on es-
tate of non-resident for sole purpose
of suit—Sharp v. Cincinnati, etc, R.
Co. (Tenn.), 179 S. W. 875.

6. Howard v. Nashville, etc., R. Co.
(Tenn.), 179 S. W. 380.

%. Howard v. Nashville, etc., R. Co.
(Tenn.), 179 S. W. 380.

8. Brought solely by personal rep-
resentative in case of death—Uniied
States—American R. Co. v. Birch, 224
U. S. 547, 557, 56 L. Ed. 879, 32 S.
Ct. 603; Missouri, etc, R. Co. v. Wulf,
226 U. S. 570, 576, 57 L. Ed. -355, 33
S. Ct. 135, Ann. Cas. 1914B, 134; Trox-

ell v. Delaware, etc., R. Co. 227 U.
S. 434, 443, 57 L. Ed. 586, 33 S. Ct.
274; St. Louis, etc. R. Co. uv. Seale,
229 U. S. 156,.57 L. Ed. 1129, 33 S.
Ct. 651, Ann. Cas. 1914C, 156; Mr. Jus-
tice Lamar, dissenting; St. Louis, etc.,
R. Co. vw. Hesterly, 228 U. S. 702, 57
L. Ed. 1031, 33 S. Ct. 703, L. R.A.
1915E, 706; Oliver v. Northern Pac.
R. Co. (D. C.), 196 Fed. 432; Dew-
berry v. Southern R. Co. (C. C.), 175
Fed. 307; Fulgham v. Midland Valley
R. Co. (C. C.), 167 Fed. 660, 662;
Thompson v. Wabash R. Co. (C. C.),
184 Fed. 554; Fithian v. St. Louis, etc.,
R. Co. (C. C.), 188 Fed. 842; Ander-
son v. Louisville, etc., R. Co., 126 C.
C. A. 277, 210 Fed. 689; Pecos, etc.,
FEDERAL EMPLOYERS LIABILITY ACT. 202

§ 8l

Because the right of action for injuries resulting in death is entirely based
upon statute, no such right existing at common law, the law is well settled
that such an action can only be brought in the name of the person or per-
sons to whom the right is given by the statute under which it is sought to
prosecute it, upon the well-settled principle that when a statute gives the
cause of action and designates the persons who may sue, they alone can
sue. So where the action is brought in the name of the widow as sole bene-
ficiary it is reversible error to overrule defendant’s request for a peremptory
instruction. In such a case the plaintiff has failed to bring herself within the
condition prescribed in the statute, and, having no right to maintain the action
at common law, or aside from the statute, she failed to show a personal right
of recovery. The case is not one of defect of parties or want of legal ca-
pacity to sue; it is purely a want of a cause of action in the plaintiff, and,
regardless of what might have been alleged in the pleadings or proven by
the testimony, the action not having been brought in the name of the per-
sonal representative, plaintiff was not entitled to judgment.1°

It has been contended that the action could be maintained by the next of
kin dependent upon the deceased if there was no personal representative, on
the ground that given a proper construction of the act the words “and, if
none, then the next of kin dependent upon such employee” refer to the
personal representative and not the beneficiaries. But the language of the
act is too plain to bear such a construction. What was intended by congress
by the words “and, if none” refers to the beneficiaries mentioned in the pre-
ceding part of that section. This is clearly shown by the context of the en-

R. Co. v. Rosenbloom (U. S.), 36 S.
Ct. 390; Seaboard Air Line Railway
v. Kenney (U. S.), 36 S. Ct. 458.
Arkansas.—Midland Valley R. Co. v.
Lemoyne, 104 Ark. 327, 148 S. W. 654.
Florida —Flanders vw. Georgia, etc.,
R. Co., 68 Fla. 479, 67 So. 68.

Louisiana—La Casse v. New Or-
leans, etc, R. Co., 135 La. 129, 64 So.
1012; Penny v. New Orleans, etc., R.
Co., 135 La. 962, 66 So. 313.

Massachusetté. — Corbett v. Boston,
etc. Railroad, 219 Mass. 351, 107 N.
E. 60.

Missouri—Vaughan v. St. Louis,
etc, R. Co. 177 Mo. App. 155, 164 S.
W. 144; Dungan v. St. Louis, etc., R.
Co., 178 Mo. App. 164, 165 S. W. 1116;
Rich v. St. Louis, etc., R. Co., 166 Mo.
App. 379, 148 S. W. 1011; Hearst v. St.
Louis, etc., R. Co. 188 Mo. App. 36,
173 5S. W. 86; Sells v. Atchison, etc.,
R. Co. (Mo.), 181 S. W. 106.

Montana—Melzner v. Northern Pac.
R. Co., 46 Mont. 277, 127 Pac. 1002, L,
R. A. 1915B, 811.

Oklahoma.—Missouri, etc., R. Co. v.
Lenahan, 39 Okla. 283, 135 Pac. 383.

Tennessee —Cincinnati, été, R. Ce:

v. Bonham, 130 Tenn. 435, 171 S.
W. 79.

Texas—Eastern R. Co. v. Ellis
(Tex. Civ. App.), 153 S. W. 701; Kan-
sas, etc, R. Co. v Pope (Tex. Civ.
App.), 152 S. W. 185, motion for re-
hearing denied in 153 S. W. 163; Gulf,
etc, R. Co. v. Lester (Tex. Civ. App.),
149 S. W. 841; St. Louis, etc., R. Co. v.
Geer (Tex. Civ. App.), 149 S. W. 1178,
1180, writ of error denied in 154 S. W.
X1x, no op., writ of error granted in
106 Tex. 649, no op., as to (Geer v.
St. Louis, etc, R. Co.).

In Bixler v. Pennsylvania R. Co. (D.
C.), 201 Fed. 553, the court refused
to abate. an action because brought
in the name of the parents, and doubt-
ing the necessity of an amendment
substituting the same parties as ad-
ministrators, ordered that it be done,
to conform to a previous ruling of that
court. .

9. Statutory right restricted to per-
sons designated.—Fithian v. St. Louis,
etc., R. Co. (C. C.), 188 Fed. 842.

Oklahoma—Missouri, etc., R. Co. v.
Lenahan, 39 Okla. 283, 135 Pac. 383.

10. Missouri, etc., R. Co. v. Lena-
han, 39 Okla. 283, 135 Pac. 383.
203 PARTIES ENTITLED TO SUE. § 81

tire section. The beneficiaries first mentioned are “the surviving widow or
husband and children of such employee.” That is followed by a semicolon.
Then the act proceeds, “and, if none, then of such employee’s parents,” fol-
lowed again by a semicolon; and then follows, “and, if none, then of the
next of kin dependent upon such employee.” The words “if none” clearly
apply solely to persons for whose benefit the personal representative is au-
thorized to prosecute the action, and who, in case of a recovery, are to be
the beneficiaries. The language of the act is clear and unambiguous, and,
leaves no room for construction. The personal representative of the de-
ceased, and no one else, is authorized to maintain the action. This is the
natural grammatical construction of the language used, and is strengthened
by the punctuation—a semicolon—after each class of beneficiaries.11
Of course, where the heirs, next of kin, or other parties at interest con-
sider that the injury occurred wholly outside the channels of interstate com-
merce and that the federal act is not applicable, they may proceed under the
state law, and bring the action in the name of the widow, next of kin, or
, whoever may be the proper person designated by the state law to bring such
action ;12 but should it be shown by the declaration in such case, or devel-
oped in the evidence, that the injury occurred while the defendant and the
employee were engaging in interstate commerce, the exclusive operation of
the federal act would at once come into play, and no recovery could be had
upon the action as brought.

The fact that plaintiff’s petition did not set out a cause of action arising
under the federal act in no wise affects the applicatory law, should the plead-
ings or the evidence show, that the case was one that must be controlled by
the federal act, and it therefore mattered not that plaintiff did not base her

right to recover upon the federal statute.!4

11. Construction of words “and if
none” as referring to personal repre-
sentative.—Fithian v. St. Louis, etc.,
R. Co. (C. C.), 188 Fed. 342.

12. Injuries occurring outside chan-
nels of interstate commerce. — St.
Louis, etc, R. Co. wv. Seale (Tex.
Civ. App.), 148 S. W. 1099, writ. of
error denied in 150 S. W. xix, 106 Tex.
649, no op.; Kansas, etc., Co. v.
Pope (Tex. Civ. App.), 152 S. W. 185,
motion for rehearing denied in 153 S.
W. 163.

138. Where pleading or evidence
shows case under federal act. —
United States—St. Louis, etc., R. Co.
v. Seale, 229 U. S. 156, 57 L. Ed. 1129,
33 S. Ct. 651, Ann. Cas. 1914C, 156;
Troxell v. Delaware, etc., R. Co., 227
U. S. 434, 443, 57 L. Ed. 586, 33 S.
Ct. 274; Missouri, etc., R. Co. v. Wulf,
226 U. S. 570, 576, 57 L. Ed. 355, 33
S. Ct. 135, Ann. Cas. 1914B, 134;

The exact question was deter-

American R. Co. wv. Birch, 224 U. S.
547, 56 L. Ed. 879, 32 S. Ct. 603; Dew-
berry v. Southern R. Co. (C. C.), 175
Fed. 307.

Florida—Flanders v. Georgia, etc.,
R. Co., 68 Fla. 479, 67 So. 68.
Kansas—Giersch v. Atchison, etc.,

R. Co. (Kan.), 158 Pae. 54.
Missouri —Rich v. St. Louis, etc., R.
Co., 166 Mo. App. 379, 148 S. W. 1011.
Afontana.—Melzner v. Northern Pac.
R. Co., 46 Mont. 277, 127 Pac. 1002, L.
R. A. 1915B, 811.
Oklahoma.—Missouri, etc., R. Co. 7.
Lenahan, 39 Okla. 283, 135 Pac. 383.
Texas —Gulf, etc, R. Co. vw. Lester
(Tex. Civ. App.), 149 S. W. 841; ‘Kan-
sas, etc, R. Co. v. Pope (Tex. Civ.
App.), 152 S. W. 185, motion for re-
hearing denied in 153 S. W. 163.

14. Plaintiff not relying on act.—

‘Missouri, etc., R. Co. v. Lenahan, 39

Okla. 283, 135 Pac. 383, 386.
FEDERAL EMPLOYERS LIABILITY ACT. 204

§ 81
mined by the supreme court in Missouri, etc., R. Co. v. Wulf, 226 U. S. 570.
57 L. Ed. 355, 33 S. Ct. 135, Ann. Cas. 1914B, 134, where it said:

“Tt is true the original petition asserted a right of action under the laws
of Kansas, without making reference to the act of Congress. But the
court was presumed to be cognizant of the enactment of the employers’
liability act, and to know that with respect to the responsibility of in-
terstate carriers by railroad to their employees injured in such com-
merce after its enactment it had the effect of superseding state laws
upon the subject. Second’ Employers’ Liability Cases, 223 U.S. 1, 53,
56 L. Ed. 327, 32 S. Ct. 169, 38 L. R. A., N. S., 44. Therefore the
pleader was not required to refer to the federal act, and the reference
actually made to the Kansas statute no more vitiated the pleading than
a reference to any other repealed statute would have done.”

Thus in a case arising in the federal circuit court for the Northern Dis-
trict of Georgia, the plaintiff sued as the widow of her deceased husband,
who was killed in the employ of the defendant railway company. The suit
was brought under the Georgia statute, which provides that a widow may
recover for the homicide of her husband. The declaration disclosed the
fact, however, that the deceased.was running as an engineer at the time he
was killed on a train engaged in interstate commerce; consequently, it was
held that the action, founded on a state statute, could not be maintained.

It is true, therefore, that under the federal statute a plaintiff can not,
although he or she be the sole beneficiary, maintain an action except as the
personal representative of the deceased.16

By the same token, where an action brought by the personal representa-
tive of the deceased and based specifically upon the federal act cannot be
sustained under that act for the reason, among others, that it arose, if at
all, prior to the passage of that act, neither can it be sustained under a state
law which gives the right of action to the parents, even though it set out
facts showing a cause of action under the state law, since damages to the
estate of a deceased minor for which a personal representative might main-
tain an action would be a distinct cause of action from damages to his par-
ents resulting from his death, and for which the state law gives a cause of
action to the parents.17

15. Dewberry v. Southern R. Co.

damages, given by the Employers’ Lia-

(C. C.), 175 Fed. 307.

16. Only personal representative can
sue.—United Staies—Missouri, etc., R.
Co. ». Wulf, 226 U. S. 570, 57 L. Ed.
355, 33 S. Ct. 135, 137, Ann. Cas. 1914B,
134; American R. Co. v. Birch, 224 U.
$. 547, 56 L. Ed. 879, 32 S. Ct. 603;
St. Louis, ete, R. Co. v. Seale, 229
U. S. 156, 57 L. Ed. 1129, 33 S. Ct.
651, Ann. Cas. 1914C, 156.

Louisiana—Penny v. New Orleans,
etc., R. Co., 185 La. 962, 66 So. 313.

Oklahoma—Missouri, etc., R. Co. v.
Lenahan, 39 Okla. 283, 135 Pac. 383.

The widow the sole beneficiary of a
deceased railway employee can not
bring in her own name the action for

bility Act of April 22, 1908, “to his
or her personal representatives, for
the benefit of the surviving widow or
husband and children of such em-
ployee.” The right of action, in case
of death of the employee, is given to
the personal representative, and not
to the surviving widow, and such rep-
resentative alone can sue. Missouri,
etc, R. Co. v. Lenahan, 39 Okla. 283,
135 Pac, 383. ;

17, When action based on federal
act proves to be governed by state law.
—Winfree v. Northern Pac. R. Co.,,
227 U. S. 296, 57 L. Ed. 518, 33 S. Ct.
273, affirming 173 Fed. 65.
205 PARTIES ENTITLED TO SUE. § 82

§ 82. Amendment of Declaration or Complaint.—Where the plain-
tiff is uncertain as to whether the injury occurred while the employee was
engaged in intrastate or interstate commerce, he may plead the facts and
then recover under either the state or federal law according as the evidence
may develop, subject to the usual rules governing variances between the
pleadings and proof. But from what has already been said, it at once ap-
pears that this does not solve the problem as to the proper party plaintiff in
those instances in which the state law provides for the bringing of the ac-
tion by a person or persons different from the person prescribed by the
federal act, and that he must still face the danger of bringing the suit in the
name of the party prescribed by the one act only to fail because of the evi-
dence developing a case calling for the exclusive operation of the other.
The proper recourse in such an event is to resort either to a nonsuit or to
an amendment changing the relation in which the plaintiff sues to the rela-
tion prescribed by the statute, state or federal, as the case may be. That
such an amendment is permissible has been held in a case decided by the
Federal Supreme Court, in which it was held that where aside from the ca-
pacity in which the plaintiff assumed to bring her action, there is no sub-
stantial difference between an original and the amended petition, when in
the former, as in the latter, it is sufficiently averred that the deceased came
to his death through injuries suffered while he was employed by the defend-
ant railroad compahy in interstate commerce; that his death resulted from
the negligence of the company and by reason of defects in one of its loco-
motive engines, due to its negligence; and that since the deceased died un-
married and childless, the plaintiff, as his sole surviving parent, was the
sole beneficiary of the action, and an amendment that, without in any way
modifying or enlarging the facts upon which the action was based, in effect
merely indicated the capacity in which the plaintiff was to prosecute the ac-
tion, was clearly within § 954, Rev. Stat. U. S. Comp. Stat. 1901, p. 6968.18

Following this decision it is held to be proper upon motion to grant a new
trial upon an amended petition, having the facts stated therein that plaintiff
had been appointed administratrix and was suing in that capacity.19 So it
is within the discretion of the trial court to.permit the plaintiff to amend a
petition by stating that the appointment as administratrix was by a local
court of a different county from that first stated. This is not the substitu-
tion of a new plaintiff.?°

This right of amendment is subject, of course, to the limitation that it
must not introduce or undertake to set up a new cause of action upon the

18. Pleading facts—Amendment as
to party plaintiff or as to beneficiaries
of suit—Missouri, etc, R. Co. vw.
Wulf, 226 U. S. 570, 57 L. Ed. 355, 33
S. Ct. 135, Ann. Cas. 1914B, 134.

See, also, a case arising under the
Act of June 11, 1906, in which the
plaintiff sued as widow of the de-
ceased, and it was held that she might
amend her declaration so as to change

her relation to that of administratrix.
Hall v. Louisville, etc., R. Co. (C. C.),
157 Fed. 464.

19. Vaughan v. St. Louis, etc, R.
Co., 177 Mo. App. 155, 164 S. W. 144,
149.

20. Same—Alleging appointment by
different court—Chicago, etc., R. Co.
wv. McCormick, 118 C. C. A. 527, 200
Fed. 375, 45 L. R. A. N. S., 539.
§ Q2 FEDERAL EMPLOYERS LIABILITY ACT. 206
facts.2! So, where the plaintiff sued first as heir at law or next of kin to
recover for the death of her unmarried and childless son, basing her right
to recover upon the state law, it was held that a mere statement, by which,
without stating any new facts as the ground of action, she set up for the
first time the right to sue as personal representative, was not equivalent to
the commencement of a new action for the purpose of applying the two
years’ limitation prescribed by the federal act, and that her pleading was not
vitiated by the reference to the state law any more than it would have been
by a reference to any other repealed statute.??

But in the Hall Case, arising under the act of 1906, where it appeared that
the state law gave the right of action to the widow, when there was one, for
her sole benefit, whereas the federal act gave such right to the personal repre-
sentative alone and for the benefit of the widow and children or dependent
next of kin, it was held that the action brought in a state court by the widow
was presumed to have been brought under the state law, as that was the
only law permitting the widow to recover, and that an amendment which
sought to make the widow as administrator, a party plaintitf so as to re-
cover under the federal act for the benefit of herself and three children of
the deceased, would not be allowed, as it introduced a new cause of action
which did not relate back to the commencement of the suit and that the
statute of limitations was a good plea.?3

In Bixler v. Pennsylvania R. Co.2+ an amendment was allowed so as to
substitute the father and mother of a deceased employee who had sued in
their individual capacity so as to permit them to continue the action in the
capacity of administrators when objection was made to their capacity to sue.
The court holding that the personal representative was merely a nominal
party, the object of recovery will be the same when the parents bring the
suit either individually or as administrators, they being the sole beneficiaries,
and the change was not the statement of a new cause of action.

In Texarkana, etc., R. Co..v. Casey 25 an amendment was allowed to per-
mit the widow, who had originally instituted suit for herself and the sur-
viving children, to prosecute a suit under the act as administratrix, notwith-

21. Same—Limitations of right of bringing of a new action. See Veughan
amendment.— Missouri, etc, R. Co. v.  v. St. Louis, etc, R. Co., 177 Mo. App.

Wulf, 226 U. S. 570, 57 L. Ed. 355, 33
S. Ct. 135, 137, Ann. Cas. 1914B, 134.

There seems to be a distinction between
a petition or declaration which makes a
defective statement of a good cause of
action and one which makes the state-
ment of a defective cause of action
or between the statement of a “cause
of action” and the “plaintiffs right
to a judgment;” the former of which
being defective may be amended
without being a statement of a new
cause of action but the latter having
stated no action in the first place is
not cured by an amendment but is the

155, 164 S. W. 144, 150; Vickery wv.
New London, etc, R. Co., 87 Conn.
634, 89 Atl. 277, 279.

22. Amendment as commencement
of new action—Statute of limitations.
Missouri, etc., R. Co. v. Wulf, 226 U.
S. 570, 57 L. Ed. 355, 33 S. Ct. 135,
137, Ann. Cas. 1914B, 134, distinguish-
ing Union Pac. R. Co. v. Wyler, 158
U.S. 285, 39 L. Ed. 983, 15 S. Ct. 877.

23. Hall vw. Louisville, etc., R. Co.
(C. C.), 157 Fed. 464.

24. (D. C.), 201 Fed. 553.

25. (Tex. Civ. App.), 172 S. W. 729.
207 PARTIES ENTITLED TO SUE. § 82
standing that more than two years had elapsed when the amendment was
made. The original suit having been brought in time.?®

The case of St. Louis, etc., R. Co. v. Smith27 is the Seale Case which
was remanded by the federal supreme court for want of proper parties to
maintain the action. The suit was originally brought by the widow and the
father and mother of the deceased employee in their individual capacities.
The motion for judgment made after the remand of the case on the ground
that an amendment which would permit the widow to sue as the personal
representative would be the bringing of a new cause of action and barred
by limitations was refused and the case remanded to the lower court for trial.?8
After remand to the lower court the widow having married again asked to
be substituted as party plaintiff in lieu of the original parties, which motion
was granted, and also on the same day she filed an amended petition pros-
ecuting the suit as the personal representative of the deceased instead of her
individual capacity. It was held that neither the substitution of the parties
plaintiff nor the amendment changing the widow from an individual to a
representative capacity was the bringing of a new cause of action barred
by the statute.

In Nashville, etc., Railway v. Anderson 2° the suit was originally brought
in the name of the administrator of the deceased, but later as the action was
brought under a Georgia statute which made the widow a proper party, an
order was entered dismissing the case as to the administrator and directing
that it be prosecuted in the name of the widow by her next friend. On ap-
peal to the circuit court the case was reversed on the ground that the federal
law governed and not the Georgia statute. On remand of the case the dec-
laration was again amended to state the action in the name of the adminis-
trator to which the defendants interposed a plea of limitations. The trial
court overruled the plea but on appeal to a circuit court this was held error,
but on appeal to the supreme court of the state the amendment was held to
come within the authority of the Wulf Case and was not the statement of
a new cause of action, subject to a plea of limitations.

Tihe Supreme Court of the United States itself has made some very close
distinctions as to what constitutes a new and distinct cause of action in such
cases, distinctions that it is not always easy to follow;#° but however this
may be, it must be conceded that under the doctrine of the Wulf Case an
amendment which merely changes the capacity in which the plaintiff sues is

introducing new cause of action—See

26. See also, Ft. Worth Belt R. Co.
v. Jones (Tex. Civ. App.), 182 S. W.
1184.

27. (Tex. Civ. App.), 171 S. W. 512,
writ of error denied in 179 S. W. xvi,
no op.

28. St. Louis, etc, R. Co. v. Seale
(Tex. Civ. App.), 160 S. W. 317.

29. (Tenn.), 185 S. W. 677.

80. Distinctions as to amendments

(Missouri, etc., R. Co. v. Wulf, 226 U.
S. 570, 57 L. Ed. 355, 33 S. Ct. 135,
Ann. Cas. 1914B, 134; Union Pac. R.
Co. v. Wyler, 158 U. S. 285, 39 L. Ed.
983, 15 S. Ct. 877; Winfree v. Northern
Pac. R. Co., 227 U. S. 296, 57 L. Ed. 518,
33 S. Ct. 273, affirming 173 Fed. 65;
Troxell v. Delaware, etc., R. Co., 227
U. S. 434, 57 L. Ed. 586, 33 S. Ct. 274,
reversing 200 Fed. 44.
§§ 82-84 FEDERAL EMPLOYERS LIABILITY ACT. 208

entirely permissible and relates back to the beginning of the action, and that
the decision of the Hall Case and any similar case must be considered as
governed by its ruling authority.

§ 83. Adoption of Proceedings by Personal Representative after
Judgment.—After judgment is rendered in favor of a plaintiff as an in-
dividual, such a one could not as administrator, enter an appearance, adopt
the proceedings, and stand in judgment in place of the individual.3! It was
contended that this was a mere matter of procedure, but even on the theory
that the plaintiff’s “adoption” of the judgment may be considered purely a
“method of precedence,” with which the federal statute has nothing to do,
still, it is a procedure not authorized by law.3?

Furthermore the appointment of a personal representative, and that the
one claiming to be such was the one appointed, are as necessary to be proved,
as a part of the facts necessary to support a judgment, as any other facts.
And the defendant is entitled to an opportunity to controvert them before
the jury as well as any others. But by the administrator coming in after
the judgment, and attempting to make proof before the court of the ap-
pointment and identity as such representative, defendant would be pre-
cluded and foreclosed from controverting these matters. It is thus seen that
what the representative sought to do here involves more than a mere “mode
of procedure.” It involves the right of the defendant to controvert every ele-
ment of the facts necessary to the rendition of a judgment, and the power
of the court to render any judgment at all as the case stood at the time it
was rendered.22 In Vaughan v. St. Louis, etc., R. Co., 177 Mo. App. 155,
164 S. W. 144, 148, the court said:

“The trouble with this contention is that said judgment was rendered
without authority of law. Defendant by its demurrer raised the point
that plaintiff, as the case then stood, was not entitled to judgment. Un-
der the law she was not. Consequently, how can the administratrix
claim that by entering her appearance after judgment, she made that
valid which before was invalid? Plaintiff, with much earnestness,
cites the case of Missouri, etc., R. Co. v. Wulf, 226 U. S. 570, 57 L. Ed.
355, 33S. Ct. 135, Ann. Cas. 1914B, 134, as an authority for that po-
sition. But in that case the petition was amended, and the administra-
trix became a party to the suit before the judgment was rendered.
Consequently there was in the case, at the time of that judgment, a
party entitled to recover, and in whose favor the court had authority
to render judgment. But such was not the case here. The judgment
in the case at bar is in favor of a party not entitled to judgment under
the terms of the federal act, which is exclusive.”

§ 84. Doctrine as to Nonsuit.—As regards a nonsuit, it has been held
that where at the time the motion to direct a verdict and the motion for a

31. Vaughan v. St. Louis, etc., R. 32. Vaughan wv. St. Louis, etc, R.
Co., 177 Mo. App. 155, 164 S. W. 144; Co., 177 Mo. App. 155, 164 S. W. 144,
Dungan v. St. Louis, etc, R. Co. 178 149.

Mo. App. 164, 165 S. W. 1116. 33. Vaughan v. St. Louis, etc, R.
Co., 177 Mo. App. 155, 164 S. W. 144.
209 PARTIES ENTITLED TO SUE. §§ 84-85

voluntary dismissal were interposed, it was clearly within the power and
discretion of the court to dismiss the entire action without prejudice gen-
erally, it was clearly within its power and discretion to dismiss it without
prejudice to the bringing of an action under the federal act.24 As to whether
a judgment in the case as brought—that is, where the plaintiff does not
suffer a nonsuit nor affect an amendment changing the capacity in which
he sues—can be pleaded in bar of another action depends upon principles
now to be considered.

§ 85. Former Judgment as Res Adjudicata.—As it is impracticable
in a treatise of this kind to enter into a general discussion of the subject of
res adjudicata, or estopped by former judgment, we cannot do better than
to give the holding of the Supreme Court of the United States in a very
recent case which arose under the Act 1908, as amended by the Act of
1910. In the case in question, the suit was originally brought by the widow
and surviving children of the deceased seeking a recovery under the state
law, and the question at issue was whether a judgment rendered in that suit
as brought was a ‘bar to a subsequent action brought by the widow as ad-
ministratrix, for the benefit of herself and the said children, against the
same defendant, under the federal act. The circuit court of appeals,
reversing the lower court, was of the opinion that it was, upon the ground
that the parties were essentially the same in both actions. The Supreme
Court of the United States, in Troxell v. Delaware, etc., R. Co., 227 U.S.
434, 57 L. Ed. 586, 33 S. Ct. 274, reversing the circuit court of appeals, laid
down the governing principles as follows:

‘Where the second suit is upon the same cause of action set up in the first
suit, an estoppel by judgment arises in respect to every matter offered
or received in evidence, or which might have been offered, to sustain
or defeat the claim in controversy; but, where the second suit is upon
a different claim or demand, the prior judgment operates as an estoppel
only as to matters in issue or points controverted and actually deter-
mined in the original suit. * * * 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, * * * there must
have been identity of parties in the two actions.”

Tollowing these principles it was held that, the fact that the plaintiff at-
tcmpted to recover under the state law and pursued the supposed remedy un-
til the court adjudged that it never existed would not of itself preclude the
subsequent pursuit of a remedy for relief to which in law she is entitled un-
der the federal act; neither were the parties in the second case identical
nor essentially the same as those in the first, for, said the court :

“Whether the plaintiff could recover under the Pennsylvania statute was
not involved in the second action, and the plaintiff’s right to recover

mea Doctrine as to nonsuit—Oliver v. Northern Pac. R. Co. (D. C.). 196
ed. 432.

Fed Act—14
§ 85

FEDERAL EMPLOYERS LIABILITY ACT. 210

because of the injury occasioned by the negligence of the fellow serv-
ants 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 identity of parties in the two actions.3® * * ¥* 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 Lizzie
M. Troxell and the two minor children, and the present case, although
the action was brought by the administratrix, is for the benefit of her-
self and children—and held that, except in mere form, the actions were
for the benefit of the same persons and therefore the parties were prac-
tically the same; and that the omission 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 R. Co. v. Birch, 224 U. S. 547, 56 L. Ed. 879, 32 S. Ct. 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 representative 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
without the appointment of a personal representative. This court de-
nied the contention and held that congress, doubtless for good reasons,
had specifically provided that an action under the Employers’ Liability
Act could ‘be brought only by the personal representative, and the judg-
ment was reversed without prejudice to the rights of such personal rep-
resentative. 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
Employers’ Liability Act, which renders the former suit and judgment
a bar to the present action.” 36

Subsequent suits which have been brought by parties not entitled to main-

tain the action, have been dismissed on appeal, without prejudice to any
rights conferred by the act.37 Thus in St. Louis, etc., R. Co. v. Seale,3§ the
suit was brought ‘by the widow and parents of an employee to recover dam-
ages for his death. The railway company, for defense, insisted that its
liability, if any, arose under the federal statute, and therefore the action
could be brought only by the personal representative of the deceased. The
supreme court sustained this contention, but in reversing the judgment said:
“The judgment is accordingly reversed, and the case is remanded for fur-
ther proceedings not inconsistent with this opinion, but without prejudice

35. Former judgment as res adjudi-
cata.—Citing Brown v. Fletcher, 210
U. S. 82, 52 L. Ed. 966, 28 S. Ct. 702;
Ingersoll v. Coram, 211 U. S. 335, 53
L. Ed. 208, 29 S. Ct. 92.

36. Troxell v. Delaware, etc., R. Co.,
227 U. S. 434, 57 L. Ed. 586, 33 S. Ct.
274, reversing 200 Fed. 44. See, also,

S. C., 185 Fed. 540, 105 C. C. A. 593,
183 Fed. 373; 180 Fed. 871.

37. Penny v. New Orleans, etc., R.
Co., 135 La. 962, 66 So. 313; Cincin-
nati, etc., R. Co. v. Bonham, 130 Tenn.
435, 171 S. W. 79.

88. 229 U. S. 156, 57 L. Ed. 1129, 33
S. Ct. 651, Ann. Cas. 1914C, 156.
211 PARTIES ENTITLED TO SUE.

§§ 85-86
to such rights as a personal representative of the deceased may have”—thus
indicating that on a return of the case an amended petition might be filed in
the name of the personal representative and the action originally brought be
prosecuted in his name, although it appears that more than two years had
elapsed between the death of the employee and the decision of the court.

§ 86. Suit by Foreign Personal Representative.—Where there is a
state statute which, ex vi termini, or as construed by the courts of that state,
authorizes a foreign personal representative to sue in the courts of that
state upon a cause of action for death by wrongful act, there can be no
doubt as to the right of such a representative to maintain a suit upon
a cause of action arising under the Federal Employers’ Liability Act.39 In
the case cited, the injury occurred in Oklahoma and the suit was brought
in a state court in Arkansas. It did not appear, said the Arkansas court,
whether the plaintiff, who had taken out original letters of administration in
Oklahoma and ancillary letters in Arkansas, sued by virtue of the Oklahoma
appointment or under authority of the letters ancillary; but it was expressly
held that the point was immaterial, since under the Arkansas statutes as
construed by the courts of that state she was entitled to sue by virtue of
either appointment. It is but fair to say, however, that the point that the action
arose under and was controlled by the federal act was not raised until aft-
erward upon rehearing, and that the right of the plaintiff to maintain the
action was not brought in question upon such rehearing.4°

As a question of general law, the right of a foreign personal representa-
tive to maintain in the courts, state or federal, of another state an action
for death by wrongful act is very uncertain and dependent in any particular
case upon principles not within the range of this discussion. Any one mak-
ing an examination of the cases on the subject is apt to find that any sup-
posed line of cleavage will lead him through a maze of obscure distinctions,
only to be in the end entirely obliterated by conflicting decisions. Suffice it
to say that the weight of authority is against the existence of any such right
upon the part of a foreign representative in cases of wrongful death, except
as given by statute. To any one interested in an investigation of the sub-
ject, however, the cases cited in the note are sufficient to give a line upon
most of the others.4!_ But as to cases arising under the federal act, it would

39. Suit by foreign personal repre-
sentative—When authorized by stat-
ute——Midland Valley R. Co. v. Le-
moyne, 104 Ark. 327, 148 S. W. 654.

40. Midland Valley R. Co. uv. Le-
moyne, 104 Ark. 327, 148 S: W. 654,
662.

41, Right of foreign representative
to sue in absence of statute.—United
States—Dennick v. Railroad Co., 103
U.S. 11, 26 L. Ed. 439; Sanbo 2. Union
Pac. Coal Co. (C, Ci, 130 Fed. 52;
Dodge v. North Hudson (C. C.), 177
Fed. 986; Cornell Co. v. Ward, 93 C.
C. A. 473, 168 Fed. 51, 52; Baltimore,

etc., R. Co. v. Evans, 110 C. C. A. 156,
188 Fed. 6; St. Bernard v. Shane (D.
C.), 201 Fed. 453.
Arkansas.—St. Louis, etc., R. Co. v.
Graham, 83 Ark. 61, 102 S. W. 700.
North Carolina—Hall v. Southern R.
Co., 146 N. C. 345, 59 S. E. 879; S.C,
149 N. C. 108, 62 S. E. 899.
Virginia—Low Moor Iron Co. v. La
Bianca, 106 Va. 83, 55 S. E. 532, 9
Am. & Eng. Ann. Cas. 1177.
IVisconsin, — Robertson v. Chicago,
etc., R. Co., 122 Wis. 66, 99 N. W. 433,
66 L. R. A. 919, 106 Am. St. Rep. 925.
§ 86 FEDERAL EMPLOYERS’ LIABILITY ACT. 212

seem that the principles laid down as governing the right of a foreign repre-
sentative to sue, in the absence of statutory authority, upon a right of ac-
tion for wrongful death arising under a state statute, are inapplicable, and
that under the federal act the personal representative has the right to sue
in any proper venue and in any proper court, state or federal, without re-
gard to whether it be in the state or jurisdiction in which he qualified as
such representative or not. This conclusion is based, first, upon the gen-
eral supremacy and controlling authority of the federal act as an expression
of the constitutional right of congress to create the right of action and confer
it upon whom it saw fit; second, upon the nature of the right conferred upon
the personal representative, the cause of action being, not for the benefit
of the estate, but for the benefit of certain surviving relatives and next of
kin, thus harmonizing with the distinction made in many cases which per-
mit suits to be brought by foreign representatives where they sue otherwise
than in their strict representative capacity and for the benefit of the estate.
One case arising under the federal act which involved the right of the per-
sonal representative to sue in a foreign jurisdiction in the absence of a state
statute conferring the privilege, is Brooks v. Southern Pacific Railway Com-
pany, which arose under the Act of June 11, 1906. It appeared that the de-
ceased, who had his domicil in the state of Kansas, was employed as a fire-
man by the defendant railway company and was killed in an accident in
the. course of his employment upon an interstate train of said company in
the state of Nevada. ‘The mother of the deceased qualified as his adminis-
tratrix in the state of Kansas, and brought suit against the defendant in the
federal circuit court in the Western District of Kentucky, the defendant be-
ing a Kentucky corporation. The court held that while there were some
cases which seemed to support the contention that a personal representative
qualified in one state could not sue in the courts of another state without
authority from such other state, yet in order that the plaintiff might have
a remedy which could be enforced against the corporation, which had no
residence in the state of the plaintiff's domicil, it would, for the purpose of
a suit based on the act of congress, treat the plaintiff as the personal repre-
sentative of the deceased within the purview of the act and entitled to sue
in that jurisdiction. But as the court further held the act to be unconstitu-
tional upon various grounds set forth in the opinion, thus remitting the par-
ties to such rights and liabilities as they might have under the state statutes
and decisions, it recurred to this point, and proceeded to hold that, inde-
pendently of the federal act, which it deemed to be invalid, a personal rep-
resentative qualified in one state could not sue in another state without au-
thorization by the latter, and that as the Kentucky statute authorizing suits
to recover debts by foreign personal representatives could not be invoked
in support of an action to recover damages for a fort, the plaintiff had no
standing to maintain the suit in that state. The significant point in the whole
case is that the court was of the opinion that, had the act of 1906, been con-
stitutional, the personal representative could have maintained the suit in the
213 PARTIES ENTITLED TO SUE. §§ 86-88

foreign jurisdiction even in the absence of any statute conferring the privi-
lege in that class of cases.*2

§ 87. Suit by Ancillary Administrator.—There is nothing in the act
which explicitly clothes a domiciliary administrator with an exclusive right
to maintain the action for damages, and the same may be maintained by
an ancillary administrator? If restricted to the domiciliary administrator,
coupled with any doubt as to the right of such an administrator to sue in a
foreign jurisdiction, the result would be to cause greater inconvenience than
by the appointment of another administrator elsewhere and his prosecution
of the suit.

That such a right would tend to a multiplicity of actions and confusion
has been urged against its exercise, but the statute employs the generic term
‘‘personal representative,” and so describes a familiar class that would natu-
rally include members that are ordinarily appointed in outside jurisdictions
for legitimate objects of adiministration. In the absence then of express
restriction to particular members of such a class, it can hardly be presumed
that there was legislative apprehension of abuses from inclusion of the
whole class. Such abuses have not arisen through unnecessary appoint-
ments and suits in the administration simply of estates; nor is it perceived
why this situation should change merely because damages recovered under
this statute wopld belong to the beneficiaries instead of the estate, much
less why possibility of abuses could be a true test of the right of a plaintiff to
maintain the suit. In any event, there could be but one satisfaction.#4

Hence, it seems it is more in consonance with the statute, and is but giv-
ing effect to one of its paramount objects, so to construe it as to permit any
validly appointed personal representative of a deceased employee to main-
tain the suit; and especially must this be so where it is plain, as here, that no
injustice can thereby result either to the beneficiaries or the defendant.#®

§ 88. Objections and Waiver.—Want of legal capacity to sue refers to
a general legal disability. If such disability does nof exist, the failure of a
plaintiff to show a right of action in herself goes to the sufficiency of the
pleading to state a cause of action, and is not waived by failure to demur,
or answer, pleading want of capacity.4¢ Upon a contention that the de-
fendant by a failure to demur or answer, had waived any objection to the
widow as a plaintiff, the court in Missouri, etc., R. Co. v. Lenahan, 39 Okla.
283, 135 Pac. 383, 388, said:

“The Federal Employers’ Liability Act does not give to the widow of the

42. Same—In cases arising under the

45. Anderson v. Louisville, etc., R-
federal act—Brooks v. Southern Pac.

Co., 126 C. C. A. 277, 210 Fed. 689.

Co. (C. C.), 148 Fed. 986.

43. Suit by ancillary administrator.—
Anderson v. Louisville, etc., R. Co.,
126 C. C. A. 277, 210 Fed. 689.

44. Inconvenience and multiplicity of
suits—Anderson v. Louisville, etc., R.
Co., 126 C. C. A. 277, 210 Fed. 689.

46. Failure to plead want of capacity. ~
—Vaughan v. St. Louis, etc, R. Co.,
177 Mo. App. 155, 164 S. W. 144; Mis-
souri, etc., R. Co. v. Lenahan, 39 Okla.
283, 135 Pac. 383.
§ 88 FEDERAL EMPLOYERS LIABILITY ACT. 214

deceased, as such, any right of action whatever for the death of the de-
ceased, but gives that right of action solely to the personal representa-
tive of the deceased, and therefore, when in a suit by the widow the
facts are shown to be such that the act of Congress applies, such suit
cannot ‘be maintained by her because she has, in her own right, no cause
of action.”

A total absence of right on the part of the plaintiff to maintain the action
may be urged at any stage of the cause, and even on appeal, it may be ob-
jected that if the case does come under the federal statute the suit instituted
by a widow for the death of her husband cannot ‘be maintained and only the
personal representative could maintain it.47 It is not necessary that the
objection be by plea in abatement before answering to the merits#8 Though
it has been held that when the widow is the sole beneficiary, on failure to
object in limine the question becomes immaterial,t® it cannot be considered
applicable for the reason that the case turns on the right to amend.

As in all cases the action must be brought and maintained by the de-
cedent’s “personal representative.” This essential requirement cannot be
affected by mere possible waivers resulting from the order of presenting
pleadings or of procedure that might operate in a local forum to affect a
right given by the local law and in controversy. This being so, if the facts
on which the cause of action must rest bring the case within the operation
of the paramount federal statute, it is quite immaterial how or when the
real facts developed in the progress of the cause.®° Thus where the plain-
tiff contended that the defendant, having pleaded the general issue and as-
sumption of risk, should not afterwards be allowed to interpose an addi-
tional plea stating facts on which the right of the plaintiff to maintain the
action as brought was challenged,®! in Flanders v. Georgia, etc., R. Co., 68
Fla. 479, 67 So. 68, 71, the court said:

47. Time of objection—La Casse v.
New Orleans, etc., R. Co., 135 La. 129,
64 So. 1012; Cincinnati,’ etc, R. Co. v.
Benham, 130 Tenn. 435, 171 S. W. 79.

48. Eastern R. Co. v. Ellis (Tex. Civ.
App.), 153 S. W. 701.

“Appellee, however, contends that
while the act of Congress provides
that the suit should be brought by a
personal representative, yet the most
that can be said for this provision is
that it is a direction, a matter of pro-
cedure, and only a formality, and, such
being the nature of the provision,
when it is not observed in the filing
of suit, then by analogy from all kin-
dred legal questions, civil or criminal,
timely objection must be made thereto
and the party given an opportunity for
cerrection, and that appellants, having
failed to raise this question by formal
plea in abatement, filed in due order
of pleading, must be held to have
waived the same. * * * And we

are inclined to the opinion that this
requirement is such [an] essential part
of the act that it can not be waived by
failure on the part of appellants to
raise the question by formal plea in
abatement, filed in due order of plead-
ing, but that such objection to the ca-
pacity in which appellee sued could be
raised, as was done by exception, at
any time before a trial had on the
merits and judgment rendered.” East-
ern R. Co. v. Ellis (Tex. Civ. App.),
153 S. W. 701, 704.

49. Missouri, etc. R. Co. v. Wulf,
113 C. C. A. 665, 192 Fed. 919, affirmed
in 33 S. Ct. 135.

50. Waiver by order of presenting
pleas——Flanders v. Georgia, etc. R.
Co., 68 Fla. 479, 67 So. 68.

51. Same—First entering plea of gen-
eral issue and assumption of risk.—
Flanders v. Georgia, etc., R. Co., 68
Fla. 479, 67 So. 68.
PARTIES ENTITLED TO SUE. § 88
“But the plaintiff brought the action as he chose to do, and the defendant
was called upon to respond to the action as brought. Besides this, the
contention relates to mere procedure, and procedure is not of substance
or at all material where the facts on which the cause of action rests do
not authorize the action as brought to be maintained. The facts stated
in the plea are expressly admitted to be true. Such facts clearly show
that the federal law is applicable, while the action is brought under the
state law. Being applicable to the facts of the case, the federal law by
its paramount force and effect supersedes and excludes the state law.
It is therefore immaterial whether other pleas had been filed or whether
the last plea be regarded as being in abatement or in bar of the action
brought under the state law. On the admitted facts and notwithstand-
ing the previous pleas in the case, the state law is superseded and ex-
cluded ‘by the paramount federal law, and the action brought under the
state law cannot be maintained. In bringing the action the express re-
quirements of the federal law were not complied with either as to the
necessary party plaintiff or as to the nature of the damages claimed.
The action therefore could not be maintained under the federal law,

no appropriate and timely amendments being offered.”

A demurrer to a complaint, on the ground that it does not state facts
sufficient to constitute a cause of action, raises the question of the right of
plaintiff to maintain the action,5? as does an objection to the reception of
“any evidence on the part of plaintiff,’ on the ground that the federal and
not the state law controls the case,5? and also a demurrer to the evidence.54

52. Mode of objection.—Missouri,
etc. R. Co. v. Lenahan, 39 Okla. 283,
135 Pac. 383.

58. Penny v. New Orleans, etc. R.
Co., 135 La. 962, 66 So. 313.

This is an action brought by a
widow, as such, and as tutrix of minor
children, for the recovery of damages
resulting from the death of the hus-
band and father, through the alleged
negligence of defendant. The petition
sets forth a case falling under the
Federal Employers’ Liability Act; but
plaintiffs, at the inception of the trial,
upon being called on, elected to pro-
ceed under the state law. Defendant
interposed no exception to the capac-
ity of the widow and tutrix to prose-
cute the suit, but, on the propounding
of the first question to the first wit-
ness, objected to “any evidence on the
part of plaintiffs,’ on the ground that
the state law had been superseded by the
federal law, which objection having been
overruled, defendant excepted, and re-
served a bill; but the objection was not
at any time renewed, though the trial
proceeded, and a number of wit-
nesses, called by both litigants, subse-
quently testified as to the existence
vel non of the facts essential, under
either law, to a recovery; the result
being a verdict and judgment for
plaintiffs, from which defendant prose-

cutes the appeal. Held, that the ver-
dict and judgment must be set aside,
for plaintiffs are obliged to show the
law entitling them to recover, and as
the state law under which they elected
to proceed has been superseded, and
the federal law, by which it was su-
perseded, confers no such right upon
them, they have failed to discharge
that obligation. Penny v. New Or-
leans, etc., R. Co., 135 La. 962, 66 So.
212.

54. Vaughan v. St. Louis, etc, R.
Co., 177 Mo. App. 155, 164 S. W. 144.

“But plaintiff says that the federal
act does not attempt to control state
procedure, and that, as defendant did
not demur or raise its objection by
answer, it has waived her lack of ca-
pacity. The trouble with this con-
tention 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 ob-
jected to any judgment, 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 defend-
ant objected thereto, by demurring to
FEDERAL EMPLOYERS LIABILITY ACT. 216

§ 88

So where the plaintiff brings the action as widow, and alleges that the
defendant was engaged in interstate commerce, to which the defendant
answers by general denial, contributory negligence and assumption of risk,
this is sufficient to put in issue the allegation of the character-of the com-
merce and the evidence showing that this was interstate, the defendant does
not waive the right to object by a demurrer to the evidence to the capacity
of the plaintiff to sue, because throughout the trial it proceeded upon the
theory and conducted the defense as though the suit was properly brought
and prosecuted under the state statute.5> And also a request for a peremp-
tory instruction by the defendant, a refusal of which is made the ground
of a motion for a new trial, the objection to the right of a widow to main-
tain the action is preserved.*6

the terms of the statute. So that, as
defendant objected to the judgment

the evidence, the validity thereof was
not waived. See on this point Barker

v. Hannibal, etc, R. Co., 91 Mo. 86,
14S. W. 280; Hegberg wv. St. Louis,
etc., R. Co., 164 Mo. App. 514, 147 S.
W. 192; 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

before it was rendered, the provisions
of the federal law were not waived.”
Vaughan v. St. Louis, etc., R. Co., 177
Mo. App. 155, 164 S. W. 144, 148.

55. Sells v. Atchison, etc., R. Co.
(Mo.), 181 S. W. 106.

56. Cincinnati, etc., R. Co. v. Bon-
ham, 130 Tenn. 435, 171 S. W. 79.
CHAPTER XIV

BENEFICIARIES UNpER Act.

. For Whose Benefit, § 89.
Exclusive Operation, § 90.

we

Class, § 92.

. Existence of Beneficiaries in One Class as.Excluding Other Classes, § 91.
Dependency and Pecuniary Expectation of Beneficiaries of First and Second

5. Character of Expectation or Dependency of Beneficiaries of Third Class, § 93.
6. Recovery Not for Equal Benefit of Beneficiaries, § 94.
7. Effect of Separation or Divorce on Rights of Widow and Children as Bene-

ficiaries, § 95.

8. Existence of Beneficiaries a Jurisdictional Fact, § 96.

9. Pecuniary Loss of Beneficiaries, § 97.

10. State Law Determines Beneficiaries, § 98.
11. Right of Recovery for Benefit of Aliens, § 99.

§ 89. For Whose Benefit.—Both the act of April 22, 1908, and the
amendment of April 5, 1910, adding § 9, provide that the action given shall
be, not for the benefit of the estate, but 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.” 1

§ 90. Exclusive Operation.—It is well settled that this provision, like
all others of the act, is exclusive in all cases in which the act applies, and
that the distribution of damages recovered for the death of an employee
resulting from injuries sustained while engaged in interstate commerce is
governed by this provision of the federal act, any state law upon the sub-
ject to the contrary notwithstanding.?

1. For whose benefit action given.—
See the Act of April 22, 1908, and
amendment of April 5, 1910. See, also,
the following cases: St. Louis, etc., R.
Co. v. Hesterly, 228 U. S. 702, 57 L.
Ed. 1031, 33 S. Ct. 703, L. R. A. 1915E,
706; Michigan Cent. R. Co. v. Vree-
land, 227 U. S. 59, 68, 57 L. Ed. 417,
33 S. Ct. 192, Ann. Cas. 1914C, 176;
American R. Co. w Didricksen, 227 U.
S. 145, 149, 57 L. Ed. 456, 33 S. Ct. 224;
Gulf, etc, R. Co. v7. McGinnis, 228 U.
S. 173, 175, 57 L. Ed. 785, 33 S. Ct.
426; Thomas v. Chicago, etc. R. Co.
(D. C.), 202 Fed. 766; Melzner vw.
Northern Pac. R. Co., 46 Mont. 277,
127 Pac. 1002. 1004, L. R. A. 1915B, 811.

2. Same—Exclusive operation of this
provision.—United States—Second Em-
ployers’ Liability Cases, 223 U. S. 1,
56 L. Ed. 327, 32 S. Ct. 169, 38 L. R.
A. N. S., 44; St. Louis, etc, R. Co.

v. Hesterly, 228 U. S. 702, 57 L. Ed.
1031, 33 S. Ct. 703, L. R. A. 1915E, 706;
Thomas v. Chicago, etc., R. Co. (D.
C.), 202 Fed. 766; Taylor v. Taylor,
232 U. S. 363, 58 L. Ed. 638, 34 S.
Ct. 350; Seaboard Air Line Railway
uv. Kenney (U. S.), 36 S. Ct. 458.

Towa.—Bradbury v. Chicago, etc., R.
Co., 149 Iowa 51, 128 N. W. 1, 40 L.
R. A. N. S., 684.

Kentucky.—Louisville, etc., R. Co. v.
Stewart, 157 Ky. 642, 163 S. W. 755.

Missouri.—Rich v. St. Louis, etc., R.
Co., 166 Mo. App. 379, 148 S. W. 1011,
1014.

Montana.—Melzner v. Northern Pac.
R. Co., 46 Mont. 277, 127 Pac. 1002,
L. R. A. 1915B, 811.

South Carolina.—Jones v. Charleston,
etc., R. Co., 98 S. C. 197, 82 S. E. 415.
See ante, “Limitation of State and
Territorial Powers.” Chap. II.

217
§ 91 FEDERAL EMPLOYERS LIABILITY ACT. 218

§ 91. Existence of Beneficiaries in One Class as Excluding Other
Classes.—By the federal statute the cause of action is given, in case of the
death of the employee, to the personal representative of the deceased, for
the benefit of the surviving widow or husband and children of the employee,
if there be such persons, to the exclusion of the other beneficiaries named
therein.2 In other words, under the federal statute, if there be persons of
the first class mentioned therein, all the persons of the second and third
class are excluded, and no cause of action is given for their benefit for any
damages which may have resulted to them on account of the death of the
employee. And it is only when there is no one belonging to the first and
second classes that an action may be maintained in behalf of more remote rel-
atives—next of kin—and they must be dependent.®

Thus where a brakeman, who received fatal injuries from being thrown
from the top of a car en route to another state, left a wife and child surviv-
ing, his dependent mother had no right of action against the railroad com-
pany, the right of action in such case being controlled by the federal act which
gives a right of action to the parents for the wrongful death of an employee
only when he leaves no wife or child surviving. And in another case, in
which the parties attempted to proceed in accordance with the state law and
sued in their individual capacities, the Supreme Court of the United States,
holding that the employee was engaged in interstate commerce at the time
of his injury and that the action should have been brought by the personal
representative in accordance with the federal act, St. Louis, etc., R. Co. v.
Seale, 229 U. S. 156, 57 L. Ed. 1129, 33 5. Ct. 651, 653, Ann. Cas. 1914C,
156, said:

“Two of the plaintiffs, the father and mother, in whose favor there was
a separate recovery, are not even beneficiaries under the federal stat-
ute, there being a surviving widow; and she was not entitled to recover
in her own name, but only through the deceased’s personal representa-
tive, as is shown by the terms of the statute and the decisions before
cited.”

So in an action brought by the representative for the benefit of the parents,
it is necessary to allege and prove that the deceased left no widow or chil-
dren surviving him in order to entitle plaintiff to recover.7

8. Existence of beneficiaries in one
class as excluding other classes—Tay-
lor v. Taylor, 232 U. S. 363, 58 L. Ed.
638, 34 S. Ct. 350; St. Louis, etc, R.
Co. v. Geer (Tex. Civ. App.), 149 S.
W. 1178, 1180, writ of error denied in
154 S. W. xix, no op., writ of error
granted in 106 Tex. 649, no op., as to
(Geer v. St. Louis, etc, R. Co.).

4. St. Louis, etc., Co. v. Geer
(Tex. Civ. App.), 149 S. W. 1178, 1180,
writ of error denied in 154 S. W. xix,
no op., writ of error granted in 106

Tex. 649, no op. as to (Geer wv. St.
Louis, etc., R. Co.).

5. Dooley v. Seaboard, etc. R. Co.,
163 N. C. 454, 458, 79 S. E. 970.

6. Parents excluded where wife or
child survives.—St. Louis, etc., R. Co.
v. Geer (Tex. Civ. App. ), 149 5S. W.
1178, writ of error denied in 154 S. W.
xix, no op., writ of error granted in
106 Tex. 649, no op., as to (Geer wv. St.
Louis, etc., R. Co.).

7. Moffett v. Baltimore, etc., R. Co.,
135 C. C. A. 607, 220 Fed. 39,
219 BENEFICIARIES UNDER ACT. §§ 91-92

The courts of New York held that a recovery would go to the estate and
that the father of an employee could share therein,’ but in reversing the
lower court in Taylor v. Taylor, 232 U. S. 363, 58 L. Ed. 638, 34 S. Ct. 350,
353, the court said:

“Tf under § 1, the cause of action was not derived from the deceased in
the sense of a succession from him. As said in one of the
cited cases, her cause of action was ‘one beyond that which the
decedent had,—one proceeding upon altogether different principles.’
It came to her, it is true, on account of his death, but because of her
pecuniary interest in his life and the damage she suffered by his- death.
It was her loss, not that which his father may have suffered. The
judgment she recovered was for herself alone. He had no interest in
it. Any loss he may have suffered was not and could not have been
any part of it, as we have seen. If the action included a right under
§ 9, the recovery was for her benefit exclusively as the widow of the
decedent. The language of the section is that the right of action given
to the employee survives to his personal representatives for the benefit
of his parents only when there is no widow.”

§ 92. Dependency and Pecuniary Expectation of Beneficiaries of
First and Second Class.—As a matter of mere grammatical construction,
there can be no doubt that what is known as the “dependency clause” or re-
quirement of the statute applies in terms solely to those beneficiaries com-
ing within the third class, the language of the act of 1908, both in the orig-
inal (§ 1) and in the amendment of 1910 (§ 9), being: “to his or her per-
sonal representative, for the benefit of the surviving widow or husband of
and children of such employee; and, if none, then of such employee's par-
ents; and, if none, then of the next of kin dependent upon such employee,”
etc. And while the Supreme Court of the United States, holds that, in its
distinguishing features, it is essentially identical with Lord Campbell’s Act,
and that like that act, it must be construed as awarding damages for pe-
cuniary loss only, and that in order to enable any beneficiary in any class
to share in the damages recovered, it must appear that there was some de-
pendency, or some reasonable expectation of pecuniary assistance or sup-
port of which such beneficiary has been deprived, and that the recovery
must be limited to compensating only those who have sustained such pecu-
niary loss, this is not a holding that the widow and children must be de-
pendent, as thought by some courts,!° but only that they must show either

8. In re Taylor, 144 App. Div. 634,
129 N. Y. S. 378; S. C., 204 N. Y. 135,
97 N. E. 502, Ann. Cas. 1913D, 276.

9. Dependency and pecuniary ex-
pectation of beneficiaries. — Michigan
Cent. R. Co. v. Vreeland, 227 U. S.
59, 70, 57 L. Ed. 417, 33 S. Ct. 192, Ann.
Cas. 1914C, 176; Gulf, etc. R. Co. wu.
McGinnis, 228 U. S. 173, 57 L. Ed. 785,
33 S. Ct. 426. See, also, American R.

Co. v. Didricksen, 227 U. S. 145, 57 L.
Ed. 456, 33 S. Ct. 224.

10. See, also, Southern R. Co. v. Ves-
sell (Ala.), 68 So. 336, where it is said:
“As an original proposition, we might,
if the question was involved, be in-
clined to hold that the right of action
in favor of those of the first and sec-
ond classes did not hinge upon the fact
that they were dependent upon the
§ 92 FEDERAL, EMPLOYERS’ LIABILITY ACT. 220

a dependency or a pecuniary loss from the death of the husband and father.1?

The application of this construction of the statute is strikingly shown in
the McGinnis Case, in which the action was originally brought in a state
court of Texas under the act of 1908, by the administratrix of McGinnis
for the benefit of his widow and four surviving children; the widow suing
as administratrix for the benefit of herself and the four children named in
the petition. It appears from the report of the case that one of the surviv-
ing children was Mrs. Nellie Sanders, a married woman residing with and
maintained by her husband. There was neither allegation nor evidence that
Mrs. Sanders was in any way dependent upon the decedent, nor that she
had any reasonable expectation of any pecuniary benefit as a result of a
continuation of his life. The court was requested to instruct the jury that
it could not find any damages in favor of Mrs. Sanders, but this it declined
to do. On the other hand, the jury were instructed that, if they found for
the plaintiff, to return a verdict for such a sum as would justly compensate
the persons for whose benefit the suit was brought for such pecuniary bene-
fits as they might believe from the evidence any of the beneficiaries had a
reasonable expectation of receiving from the deceased, if his death had not
been so occasioned. They were further told to find a round sum in favor of
the plaintiff and then apportion that sum among all the persons for whom
the suit had been brought, and to state in their verdict, “how much, if any-
thing, you find for each of said persons.” The jury returned a verdict for
$15,000, and apportioned it, one-half to the widow and the remainder
equally among the four children, including Mrs. Sanders. The Texas Court
of Civil Appeals upheld this ruling, saying that the federal statute expressly
authorized a suit to be brought by the personal representative for the bene-
fit of the surviving wife and children of the deceased, irrespective of whether
they were dependent upon him, or had the right to expect any pecuniary as-
sistance from him.12 In reversing this judgment of the Texas Court of
Civil Appeals, the United States Supreme Court held, that as Mrs. Sanders
was not shown to be in any way dependent upon her father (the decedent)
nor to have had any reasonable expectation of any pecuniary benefit result-

employee at the time of his death, but be considered in reference to the

we are now precluded from doing so,
even if the question was involved upon
this appeal, as the United States Su-
preme Court, in the case of Gulf, etc.,
R. Co. v. McGinnis, 228 U. S. 173, 57
L. Ed. 785, 33 S. Ct. 426, held that for
persons belonging to either class to
get the benefit of the statute he or she
must have been a dependent upon the

deceased.”
See Chesapeake, etc, R. Co. w.
Dwyer, 162 Ky. 427, 172 S. W. 918,

where in considering the question of
excessive damages in an action by an
administrator for the benefit of a
widow, and two children, an adult son
and married daughter, the amount will

widow only, as the children were not
dependent. .

11. Melzner v. Northern Pac. R. Co.,
46 Mont. 277, 127 Pac. 1002, 1004, L.
R. A. 1915B, 811, where it was said:
“By the very terms of the statute, the
heirs or next of kin, other than those
who stood in the relation of husband,
wife, children, or parents, are not
beneficiaries unless they were depend-
ent upon the decedent during his life-
time.”

12. See Gulf, etc., R. Co. v. McGin-
nis (Tex. Civ. App.), 147 S. W. 1188,
1189, writ of error denied in 106 Tex.
630, no op.
221 BENEFICIARIES UNDER ACT. § 92
ing from a continuation of his life, she was not entitled to share in the re-
covery, nor should any recovery have been had upon her account in the ab-
sence of such a showing.13

However, the decisions of the United States Supreme Court in these
cases!# are not considered as holding that the beneficiaries of the first and
second class must tbe actually dependent, but only that there must be an
expectation of pecuniary benefit of which they have been deprived1® The
question was not raised or decided in either case, that the word “dependent”
in the first section of the act of 1908 refers to the beneficiaries named in the
statute as well as to the next of kin; and while expressions appear to the
effect that it was the purpose of the act to give a right of action to dependent
relatives, it is distinctly held that the right of action exists in favor of those
named in the statute, other than the next of kin, if there is a reasonable
expectation of pecuniary benefit from the continuance of life, although pro-
spective. It would seem, then, that the construction placed upon the act by
the supreme court of the United States is that the action may be maintained
in behalf of widow, or husband, or children, or parents, upon proof of a
reasonable expectation of pecuniary benefit; and that when it is for the
benefit of others as next of kin, there must ‘be proof of dependency. It may
be doubted whether the courts should limit and qualify the right of action
for the benefit of the widow, etc., when the statute does not do so, and when
the effect is to narrow the scope of the act passed for the protection of
employees, so that under this construction in most cases the amount of re-
covery will be greatly reduced, and in many it will be nominal; but however
this may be, the language will not permit the construction that the word
“dependent” relates to any of the beneficiaries except the next of kin.16
Therefore it is only necessary to show “dependency” of the beneficiary on
the deceased, when his personal representative sues for damages, under the
act, in behalf of the remote relatives, termed by the act, “next of kin;’ and
not when the beneficiary is the parent, or in the same classification, such as
the “surviving widow or husband and children of such employee.17 Thus evi-

13. Application of principle; exclud- The English cases under Lord

ing child who was not dependent or
showing pecuniary expectations.—Gulf,
etc, R. Co. v. McGinnis, 228 U. S.
173, 57 L. Ed. 785, 33 S. Ct. 426.

14. Beneficiaries of first and second
class, need not be dependent.—Mich-
igan Cent. R. Co. v. Vreeland, 227
U.S. 59, 57 L. Ed. 417, 33 S. Ct. 192,
Ann. Cas. 1914C, 176; American R.
Co. v. Didricksen, 227 U. S. 145, 57
L. Ed. 456, 33 S. Ct. 224; Gulf, etc.,
R. Co. v. McGinnin, 228 U. S. 173, 57
L. Ed. 785, 33 S. Ct. 426.

15. Moffett wv. Baltimore, etc. R.
Co. 1385 C. C. A. 607, 220 Fed. 39;
Dooley v. Seaboard, etc., R. Co., 163
N. C. 454, 79 S. E. 970; Irvin v. South-
ern R. Co., 164 N. C. 5, 80 S. E. 78,
49 L. R. A, N.S, 810.

Te

Campbell’s Act decide that an action
may be maintained for the benefit of
the parent for the wrongful death of
an adult son, when there is a reason-
able expectation of pecuniary benefit
from the continuance of the life of
the son, and that it is not necessary
to prove that the son had contributed
to the support of the parent in order
to establish such reasonable expecta-
tion, and the American authorities
support the same position. Dooley v.
Seaboard, etc., R. Co., 163 N. C. 454,
461, 79 S. E. 970.

16. Dooley v. Seaboard, etc., R. Co.,
163 N. C. 454, 79 S. E. 970.

17. Dooley v. Seaboard, etc., R. Co.,
163 N. C. 454, 79 S. E. 970.
§§ 92-93 FEDERAL EMPLOYERS’ LIABILITY ACT. 222

dence to sustain an action for such recovery is held sufficient and within the
rule, if it tends to show that the deceased was a young man of good habits
and character, in good health, and had helped his father and was disposed
to give him his last cent if he needed it; that the father was growing old,
and while not actually dependent on the son for support at the time of the
latter’s death, he could not tell how soon he might be.18 And where the ac-
tion was brought for the benefit of the widow, it was held that where the
plaintiff not only offered evidence tending to show that the mother was to
some extent dependent upon her son for maintenance and support during his
lifetime—which he generously furnished her—but that she had a reasonable
expectation of pecuniary benefit from a continuance of decedent’s life,
this evidence raised a question of fact pertinent to the issues presented by
the pleading, and the same should have been submitted to the jury for its
determination.1®

§ 93. Character of Expectation or Dependency of Beneficiaries of
Third Class.—The McGinnis Case undoubtedly establishes that there can
be no recovery, even on the part of a child, where there was no dependency
and no reasonable expectation of pecuniary benefits resulting from a continu-
ance of the life of the deceased employee. The question then arises as to
the character of the expectation which the beneficiary must have had, and
the character of the obligation, if any, resting upon the deceased to render
pecuniary aid to such beneficiary, had he (the deceased) continued to live.
On this point it was held in the case of Michigan Cent. R. Co. v. Vreeland,
in which the action was brought by the personal representative for the
benefit of the widow of the deceased, that the pecuniary loss recoverable
under the act by one dependent upon the employee wrongfully killed, must
be a loss which can be measured by some standard, and that it does not in-
clude an inestimable loss, such as that of the society and companionship of
the deceased, or of care and advice in case of a husband for his wife; but
that: ‘The pecuniary loss is not dependent upon any Jegal 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.”2°

Though holding that the dependence or expectation of pecuniary benefit,
of the beneficiary of any class is a condition precedent to recovery,?! and
notwithstanding the recoverable damages was laid down,?2 the United States
Supreme Court seems not to have defined or interpreted the word “depend-

18. Sufficiency of evidence to show. 417, 33 S. Ct. 192, Ann. Cas. 1914C,
—Dooley wv. Seaboard, etc, R. Co. 163 176; Moffett v. Baltimore, etc, R. Co.

N. C. 454, 79 S. E. 970. 135 C. C. A. 607, 220 Fed. 39.

19. Question for jury.—Moffett v. 21. Meaning of dependent. — Gulf,
Baltimore, etc, R. Co. 135 C. C. A. etc, R. Co. v. McGinnis, 228 U. S. 173,
607, 220 Fed. 39, 44. 57 L. Ed. 785, 33 S. Ct. 426.

20. Character of expectation or de- 22. Michigan Cent. R. Co. v. Vree-

pendency.—Michigan Cent. R. Co. v. land, 227 U. S. 59, 57 L. Ed. 417, 33
Vreeland, 227 U. S. 59, 70, 57 L. Ed. S. Ct. 192, Ann. Cas. 1914C, 176.
223 BENEFICIARIES UNDER ACT. § 93

ent” as used in the act, and there can be no doubt of the fact that, in order
for a member of the third class to come within the influence of the stat-
ute, he or she must have been a “dependent” upon the deceased employee.?*
The word “dependent,” as used in insurance policies and statutes, as well as
in statutes providing for a right or survival of action in case of the death
of an employee, has been differently defined and applied by different courts;
some holding that, in order to come within the statute, the beneficiary must
have been solely dependent upon the deceased for support; others, not solely
but substantially or materially so; a few holding that it includes those to
whom the deceased made contributions and who were partially dependent
upon him; and others seem to hold that in order for one to have been a
dependent the deceased must have been under a legal, rather than a moral,
obligation to help and support him.4

But it would seem that a moral claim to support is not sufficient but there
must have been some substantial dependency, a necessitous want on the part
of the beneficiary and a recognition thereof on the part of the decedent.
Had the statute intended to provide for a relative who had moral claims
upon the deceased or one whom he was merely assisting, as distinguished
from a “dependent,” it would no doubt have been framed so as to include
such persons as beneficiaries, but, worded as it is, it can include no one in
the third class who was not a “dependent” upon the deceased at the time of
his death for a substantial, if not an entire, support.?®

Thus a sister of the decedent, who sues as administratrix of the estate
and upon the trial establishes that the decedent contributed to her support
by the gift of money, by the payment of her board and otherwise, will ‘be
considered a dependent, and entitled to recover damages because of the in-
jury suffered, even though possessed of property and having a clerical posi-
tion which in part supports her.26 But evidence which shows that a brother
made monthly contributions for about two years prior to his death for the
benefit of his sister and a minor nephew, but he was getting, in return, his
board and lodging, and which was approximately worth the amount con-
tributed. The sister instead of being in a necessitous condition, was in as
good financial condition as when she was supporting the deceased. Her
husband had employment, they had a home, and he seems to have been able
to take care of the family, including the deceased, up to two years prior to
his death, and there was not such a shrinkage or diminution in his earnings,
or ability to earn, as to render his wife dependent upon the deceased or any
one else. The sister had been like a mother to the deceased, her. younger
brother; and it was not only natural, but he was under a high moral duty,
to aid and assist her financially and otherwise, and though it may be that

28. Southern R. Co. v. Vessell (Ala.), 25. Southern R. Co. v. Vessell (Ala.),
68 So. 336. 68 So. 336.
_ 24. Southern R. Co. v. Vessell (Ala.), 26. Sister of deceased held depend-
68 So. 336. ent.—Richelieu v. Union Pac. R. Co.,

97 Neb. 360, 149 N. W. 772.
§§ 93-95 FEDERAL EMPLOYERS LIABILITY ACT. 224

she lost a prospective help and support, in case she came to need and want,
as time and age made their impress upon herself and husband; but she was
not at the time of the death of the deceased dependent upon him for a sup-
port, as contemplated by the statute.27 And, also, where deceased left one
brother who was a farmer and the evidence showed that he had been sick
and unable to work for some time and was still so at the time of the trial,
however, there was no testimony that deceased had ever contributed to his
support at any time or in any way had given him anything or any service
of pecuniary value and no evidence to infer that he would have done so in
the future, nor was there any evidence that conditions were such that deceased
felt impelled by relationship to render any service if he had lived. This
evidence was not sufficient to require submission of the issues to the jury
whether he was dependent upon the deceased.28 Evidence that the brothers
and sisters of the deceased were of tender age, and without estate is suff-
cient to require submission to the jury as to whether or not they were de-
pendent upon the deceased employee.?®

§ 94. Recovery Not for Equal Benefit of Beneficiaries.—The ac-
tion brought under the statute by the personal representative is not for the
equal benefit of each of the surviving relatives for whose benefit the suit is
brought, and though the judgment may be for a gross amount, the interest
of each beneficiary must be measured by his or her individual loss, the jury
making the apportionment and excluding all recovery in behalf of such as
show no pecuniary loss.3°

§ 95. Effect of Separation or Divorce on Rights of Widow and
Children as Beneficiaries.—A husband and wife are presumed to retain
that relation until separated in the manner provided by law, hence evidence
of a temporary separation is not admissible to effect the wife's right to re-
cover.*1 Where the decedent was divorced from his wife, and remarried,
the right of a minor son by the divorced wife to share in the recovery must
be determined by the test of whether he was dependent upon or had any
reasonable expectation of any pecuniary benefit from a continuance of his
father’s life, but the legal liability of his father to his son was alone sufficient
to constitute some ground of reasonable expectation of pecuniary benefits
of which he was deprived by the wrongful killing of his father.*2

27. Sister and brother held not de-

pendent.—Southern R. Co. v. Vessell
(Ala.), 68 So. 336.

28. Jones v. Charleston, etc., R. Co.,
98 S. C. 197, 82 S. E. 415.

29. Same—Question for jury.—Ken-
ney z. Seaboard, etc, R. Co. 167 N.
C. 14, 82 S. E. 968.

30. Recovery not for equal benefit of
beneficiaries.— Gulf, etc., R. Co. v. Mc-
Ginnis, 228 U. S. 173, 57 L. Ed. 785, 33

S. Ct. 426; Fogarty v. Northern Pac.
R. Co., 74 Wash. 397, 133 Pac. 609.

31. Effect of separation or divorce on
rights of widow as beneficiary.—Dun-
bar v. Charleston, etc., R. Co. (C. C.),
186 Fed. 175; Fogarty wv. Northern
Pac. R. Co., 74 Wash. 397, 133 Pac.
609.

32. Children of decedent who was
divorced and remarried.—McGarvey v.
McGarvey, 163 Ky. 242, 173 S. W. 765.
225 BENEFICIARIES UNDER ACT. § 96

§ 96. Existence of Beneficiaries a Jurisdictional Fact.—The exist-
ence of some one or more beneficiaries answering the description of those
named in the act is a jurisdictional prerequisite to the right to recover, and
such fact must be alleged and proved; otherwise the court should sustain a
demurrer or direct a verdict for the defendant? It is true that ordinarily
the presumption may be indulged that every decedent leaves heirs; but, by
the very terms of the statute, the heirs or next of kin are not beneficiaries
unless they were dependent upon the decedent during his lifetime, and there
is no presumption that all or any of the next of kin of a decedent were so
dependent upon him. The existence of a beneficiary within the description
of the statute is a necessary prerequisite—an issuable fact—therefore, and
must be alleged and proved.34

Unless there are such survivors, there is no cause of action. The
situation is very different under the federal statute from what it is under
state statutes, where, failing other beneficiaries, the amount recovered goes
to the heirs at law of the deceased, to be divided in accordance with the
statute for the distribution of intestate estates; and “in the absence of aver-
ments to the contrary it will always be presumed that, if there is no widow
or husband or lineal descendants, there are heirs to whom a distribution of
personal estate can be made.” ‘There is no basis for a presumption that one
dying leaves a husband, widow, child, parent, or next of kin dependent upon
him. Absence of allegation to that effect cannot therefore be supplied by
presumption. It must appear in the complaint that such a person there was,
or there is a failure to state a cause of action.> In Illinois Cent. R. Co. v.
Doherty, 153 Ky. 363, 155 S. W. 1119, 1121, 47 L. R. A., N. S., 31, the
court said:

“It is clear that the act does not, like the Kentucky statute applicable to
similar cases, allow a recovery merely to compensate the estate of the
decedent for his death and the consequent destruction of his power to

83. Existence of beneficiaries a juris-
dictional fact.—United States—Thomas
v. Chicago, etc, R. Co. (D. C.), 202
Fed. 766; Bankson v. Illinois Cent. R.
Co. (D. C.), 196 Fed. 171.

Arkansas—Long v. Lusk (Ark.), 186
S. W. 601.

Connecticut—Farley v. New York,
etc, R. Co., 87 Conn. 328, 87 Atl. 990.

Kewiveny: ailtats Cent. R. Co. vw.
Doherty, 153 Ky. 363, 155 S. W. 1119,
47 L. RL. AY N.S, 31.

Moniana.-Melones v. Northern Pac.
R. Co., 46 Mont. 277, 127 Pac. 1002,
L. R. A. 1915B, 811.

New York.—Collins v. Pennsylvania
R. Co., 163 App. Div. 452, 148 N. Y.
SS: 079;

South Carolina—Jones v. Charleston,
etc, R. Co., 98 S. C. 197, 82 S. E. 415.

Fed Act—15

“It has been held that the cause of
action which survives under this
amendment does not survive for the
benefit of the deceased’s estate, but
only for the benefit of the relatives
stated in the act and in the order spec-
ified, and if no such relatives survive,
no right of recovery is given by the
amendment. Thomas v. Chicago, etc.,
R. Co. (D. C.), 202 Fed. 766.” Hogan
v. New York, etc., R. Co., 139 C. C. A.
328, 223 Fed. 890, 892. See post,
“Existence of Beneficiaries,” § 131.

34. Thomas v. Chicago, etc., R. Co.
(D. C.), 202 Fed. 766; Melzner v.
Northern Pac. R. Co., 46 Mont. 277,
127 Pac. 1002, 1004, L. R. A, 1915B,
811.

35. Distinguished from action under
state laws.—Farley v. New York, etc.,
R. Co., 87 Conn. 328, 87 Atl. 990.
96-97 FEDERAL EMPLOYERS’ LIABILITY ACT. 226

“yn
“nr

earn money, but provides that only those naturally or actually depend-
ent upon the decedent shall take the benefit of the recovery. It there-
fore expressly limits the right of recovery to cases in which only the
person or persons sustaining pecuniary loss by the decedent’s death are
entitled to be compensated, viz., the beneficiaries named in the order
named. This being so, it necessarily follows that in an action under the
act of congress if there is no one for whom a recovery can be had there
can be no recovery. Proof must therefore be made of the existence of
such surviving beneficiary or beneficiaries; and, if necessary to be |
proved as an element essential to a recovery, it is an issuable fact that
must be alleged. So, if the petition in such an action fails to allege
that the decedent is survived by a person or persons coming within the
indicated limitation, it is bad on demurrer. * * * As upon the ad-
mitted facts of the instant case appellant’s liability, if any, for the death
of the decedent must be made to rest upon the Employers’ Liability Act
of April 22, 1908, and the petition failed to allege that the decedent left
surviving him any one of the beneficiaries named ‘by that act in whose
behalf a recovery against appellant could be had, it did not state a cause
of action, hence the demurrer filed to it by appellant should have been
sustained.”

Thus an unmarried child born out of wedlock, the result of the illicit re-
lations of a divorced husband and wife, who did not afterwards marry, does
not leave any next of kin dependent upon him; the father and mother being
dead and to the legitimate issue of their marriage he did not contribute sup-
port, but only to the widow and minor children of his father by a subsequent
marriage.36

§ 97. Pecuniary Loss of Beneficiaries.—A petition which states only
facts sufficient (1) to give the court jurisdiction (2) to show the employ-
ment of the deceased and the negligence resulting in his death (3) the names
of beneficiaries and the amount of damages is not in itself wholly sufficient
as to the beneficiaries. Perhaps in the case of the widow and minor chil-
dren there would be a presumption of substantial damage and specific aver-
ments would be unnecessary, but in case of the father and mother aver-
ments of actual pecuniary loss or injury are necessary, but not that there
was any dependence upon the son killed; in case of the next of kin, aver-
ments of dependence upon the deceased would be necessary.37 In Garrett
v. Louisville, etc., R. Co., 235 U.S. 308, 59 L. Ed. 242, 35 S. Ct. 32, 33, the
court said:

86. Next of kin of unmarried bas- Montana.—Melzner v. Northern Pac.
tard.—Cincinnati, etc, R. Co. v. Wil- R. Co., 46 Mont. 277, 127 Pac. 1002,
son, 157 Ky. 460, 163 S. W. 493, 51 L. R. A. 1915B, 811.

L. R.A. N. S., 308. “We have held in such case that

37. Pecuniary ‘loss of beneficiaries. — where parents or next of kin are bene-
United States—Garrett v. Louisville, ficiaries it is necessary that the decla-
etc., R. Co., 117 C. C. A. 109, 197 Fed. ration contain an averment of pecu-
715, affirmed in 35 §. Ct. 32; Illinois niary loss (Garrett v. Louisville, etc.,
Cent. R. Co. v. Porter, 125 C. C. A. R. Co. 117 C. C. A. 109, 197 Fed. 715,
55, 207 Fed. 311. 722).” Illinois Cent. R. Co. v. Porter,

Towa.—McCoullough v. Chicago, etc, 125 C. C. A. 55, 207 Fed. 311, 314.

R. Co., 160 Iowa 524, 142 N. W. 67.
227 BENEFICIARIES UNDER ACT. § 97

“The plaintiff’s declaration contains no positive averment of pecuniary
loss to the parents for whose benefit the suit was instituted. Nor does
it set out facts or circumstances adequate to appraise the defendant with
reasonable particularity that such loss in fact was suffered. Common
experience teaches that financial damage to a parent by no means fol-
lows as a necessary consequence upon the death of an adult son. The
plaintiff expressly declined in both courts below so to amend his declara-
tion as to allege pecuniary loss to the parents; and judgment properly
went against him.”

However, it has been held that where the petition contained an averment
that the decedent left surviving him his father and mother, but there was
no direct averment that such survivors had sustained any pecuniary loss by
his death nor any direct averment that the action was brought in their be-
half, however, taking the petition as a whole the fair inference ought to be
indulged that such was the apparent intention of the pleader, and the case
would not be reversed on this ground, especially in view of the fact that
the petition was not assailed ;38 and when the objection that pecuniary in-
jury to one or more of the relatives named was not alleged was not raised
either by demurrer or upon the trial, but had it been so raised, the declara-
tion would have been readily amendable.®®

An amendment of the pleadings may be allowed on the trial, so as to state
a case within the act when the evidence introduced makes the same appli-
cable, provided such an amendment does not so materially change the claim
or defense as to result in prejudice to the adverse party. But the adverse
party should show wherein he would be misled or surprised, which if done
the court should either refuse the amendment, or, granting it, should con-
tinue the hearing, or impose such other terms and condition as it might deem
necessary to prevent prejudice.#° But an abuse of the trial court’s discre-
tion in permitting during the trial an amendment to a complaint so
as to have the case tried tnder the act is not shown where de-
fendant’s attorneys stated that they were not prepared to meet the issue
of dependency of the beneficiaries, but the record shows that they resisted
the motion to amend chiefly on the want of power in the court to grant it.
The court having offered to postpone the trial if defendants were surprised
and not prepared to proceed. Plaintiff also having offered to strike out the
names of children whose dependency might be doubted, and defendants
made no effort, though plaintiff and her children resided at the place of trial,
to obtain evidence of their independence, not even cross-examining plain-
tiff’s witness on the subject. The objection seeming to have been made

38. Failure to object—McCoullough Doherty, 153 Ky. 363, 155 S. W. 1119,
v. Chicago, etc, R. Co., 160 Iowa 524, 47 L. R. A,, N. S., 31, where the re-

142 N. W. 67. fusal to so amend was held not error
39. Right to amend to show.—lIlli- the evidence not showing dependency.
nois Cent. R. Co. v. Porter, 125 C. C. A. 40. Koennecke v. Seaboard, etc.

55, 207 Fed. 311; Kenney 7. Seaboard, Railway, 101 S. C. 86, 85 S. E. 374, af-
etc., R. Co., 165 N. C. 99, 80 S. E. 1078. firmed in 36 S. Ct. 126.
See, also, Illinois Cent. R. Co. vw.
§§ 97-98 FEDERAL EMPLOYERS’ LIABILITY ACT. 228

to secure a technical advantage and grounds for a new trial, rather than
opportunity to meet the issue.*!

§ 98. State Law Determines Beneficiaries.—Within the intent of
the federal act, the meaning of the words “next of kin” depending upon
the employee, who are given a right of action against a railroad company
for his wrongful death, when there are no surviving widow or husband or
children, is dependent upon the state law regulating inheritances.42 In Sea-
board Air Line Railway v. Kenney (U. 8S.), 36 S. Ct. 458, 460, the court
said:

“Plainly the statute contains no definition of who are to constitute the
next of kin to whom a right of recovery is granted. But, as speaking
generally under our dual system of government, who are next of kin
is determined by the legislation of the various states to whose authority
that subject is normally committed, it would seem to be clear that the
absence of a definition in the act of congress plainly indicates the pur-
pose of congress to leave the determination of that question to the
state law. But, it is urged, as next of kin was a term well known at
common law, it is to be presumed that the words were used as having
their common-law significance, and therefore as excluding all persons
not included in the term under the common law; meaning, of course,
the law of England as it existed at the time of the separation from the
mother country. * * * In Hutchinson Invest. Co. v. Caldwell, 152
U.S. 65, 38 L. Ed. 356, 14S. Ct. 504, * * * the court said: * * *
‘Undoubtedly the word “heirs” was used as meaning, as at common
law, those capable of inheriting, but it does not follow that the ques-
tion as to who possessed that capability was thereby designed to be
determined otherwise than by the law of the state” * * * And
* * * Blagge v. Balch, 162 U. S. 439, 40 L. Ed. 1032, 16 S. Ct. 853,
* * * coming to determine the significance of the words ‘next of
kin’? * * * the court said: ‘And we are of opinion that congress, in
order to reach the next of kin of the original sufferers, capable of tak-
ing at the time of distribution, on principles universally accepted as
most just and equitable, intended next of kin according to the statutes
of distribution of the respective states.’ ”

To the contention that so construed the act would not be uniform in its
operation in all the states, the North Carolina Supreme Court in Kenney v.
Seaboard, etc., R. Co., 167 N. C. 14, 15, 82 S. E. 968, had said:

“Indeed, there could be no uniformity if that was desirable, for there is
no common law in Louisiana, and the common law is much modified
in some of the states which we acquired from Mexico and France, and

41. Koennecke v. Seaboard, etc., Under North Carolina Revisal, §

Railway, 101 S. C. 86, 85 S. E. 374, af-
firmed in 36 S. Ct. 126, to the effect
that such a proceeding did not deprive
the defendant of due process of law.

42, State law determines benefici-
aries.—Seaboard Air Line Railway v.
Kenney (U. S.), 36 S. Ct. 458, affirm-
ing 167 N. C. 14, 82 S. E. 968.

137, the half-brothers of the deceased
employee, an illegitimate child, may
maintain the action when born in law-
ful wedlock of the same mother. Ken-
ney v. Seaboard, etc, R. Co. 167 N.
C. 14, 82 S. E. 968.
229 BENEFICIARIES UNDER ACT. §§ 98-99

on many subjects the rule of the common law has been held differently in
the different states.”

Also in determining who are the parents of a child under a statute of adop-
tion, the state statute and decisions thereunder will control.42 And where
the state statute provides that an adopted child shall have all the rights and
be subject to all the obligations of one born in wedlock to the adopting
parents; and at the same time divests these natural parents of their rights
and obligations to such a child; and making only the exception that in case
of death of such a child without issue, prior to the death of the adopting
parents, no property shall descend to the next of kin of the adopted child,
this divests the natural parents of any right to recover damages for the
wrongful death of the child which right was in the adopting parents alone.4*

§ 99. Right of Recovery for Benefit of Aliens.—Nonresident aliens
are entitled to the benefits of this federal act.4%

The weight of authority in this country and in England is that alienage
is not a condition affecting a recovery under acts such as this.46 The
policy of the employers’ liability act accords with and finds expression in
the universality of its language. Its purpose is something more than to
give compensation for the negligence of railroad companies. Even if that
were its only object, the distinction between the duties imposed by a statute
upon persons in another state, and benefits conferred upon them
might be accepted. Extraterritorial application would naturally not be
given to the first, “but rights can be offered to such persons, 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.”47 If this “puts bur-
dens on our own citizens for the benefit of nonresident aliens,” it is a
burden imposed for wrongdoing that has caused the destruction of life.
It is to the prevention 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.48

43. Recovery as between natural and 46. McGovern v. Philadelphia, etc.,
foster parents—Ransom v. New York, R. Co., 235 U. S. 389, 59 L. Ed.’ 283,
etc. R. Co. (O.), 112 N. E. 586. 35 S. Ct. 127.

44. Ransom v. New York, etc., R. 47. McGovern v. Philadelphia, etc.,
Co. (O.), 112 N. E. 586, Under Ohio R. Co., 235 U. S. 389, 59 L. Ed. 283,
§§ 8029, 8030 General Code. 35 S. Ct. 127.

45. Right of recovery for benefit of 48. As benefiting aliens by burden-
aliens—McGovern v. Philadelphia, etc., ing citizens—McGovern v. Philadel-
R. Co., 235 U. S. 389, 59 L. Ed. 283, phia, etc., R. Co., 235 U. S. 389, 59 L.
35 S. Ct. 127; Bombolis v. Minneapolis, Ed. 283, 35 S. Ct. 127.
etc., R. Co., 128 Minn. 112, 150 N. W.

385,
CHAPTER XV.

LIMITATION OF ACTION.

1. General Provision, § 100.

2. As Affected by State Laws, § 101.

3. Institution of Suit by Employee—Effect on Action for Death, § 102.
4. Limitation of Right, Not Remedy, § 103.

5. Amendment Setting up New Cause of Action, § 104.

§ 100. General Provision.—The act of June 11, 1906, limited the
right of action thereunder to one year from the date of the injury,1 and
this was not extended by any retroactive operation of the present act.?
Section 6 of the present act of 1908, provides that no action shall be main-
tained thereunder unless commenced within two years from the day the
cause of action accrued.

In American R. Co. v. Coronas? it is held that as the statute does not

require that the action shall be brought within two years from the death,
but within two years from the time the cause of action accrued; as the ac-
tion is not for the occurrence out of which the death arose, but for the
pecuniary damage to the beneficiaries due to the death; and as it is a gen-
eral rule of law that where a cause of action arises, after death, it is con-
sidered as accruing, for the purpose of the running of the statute, only
from the time when there is some one in existence capable of suing, and, if
no one but the administrator can sue, that the statute does not begin to run
until administration is granted. So that a declaration is not demurrable
which shows that the plaintiff was appointed administrator within two
years prior to the bringing of the suit, but fails to show that it was brought
within two years from the death, which had in fact occurred six years
before. But the case of Bixler v. Pennsylvania R. Co.* holds that the
cause of action accrues and the statute begins to run from the time of the
death, and not when parties appeared: and were competent to bring suit.

There has been no ruling of the Federal Supreme Court as to the time
when the action accrues from which the two years’ limitation begins to
run, and the decision of the circuit court of Porto Rico seems sound and
well sustained by authority. On the other hand, it is not believed that it
was the intention of Congress to have the commencement of the action for
damages prolonged indefinitely by the beneficiaries by simply failing to

1. Time to sue and limitation of ac-
tions.—See Act Cong. June 11, 1906, c.
3073, § 1, 34 Stat. 232, U. S. Comp. St.
Supp. 1907, p. 891; Winfree v. North-
ern Pac. R. Co., 97 C. C. A. 392, 173
Fed. 65, 44 L. R. A., N. S., 841.

2. Morrison v. Baltimore, etc., R. Co.,
40 App. Cas. 391, Ann. Cas. 1914C,

230

1026, following Winfree v. Northern
Pac. R. Co., 227 U. S. 296, 57 L. Ed.
518, 33 S. Ct. 273.

8. When action “accrues.”—(C. C.
A.), 230 Fed. 545.

4 (D. C.),; 201 Fed. 553. See, also,
Lindsay v. Chicago, etc, R. Co.
(Okla.), 155 Pac. 1173.
231 LIMITATION OF ACTION. §§ 100-103

have an administrator appointed, while the action by the employee him-
self must necessarily be commenced within the two year period. Though
no doubt this point of view was not called to the attention of the court in
the case of Missouri, etc., R. Co. vu. Wulf, ® the court must have been of
the opinion that the limitation ran from the death of the employee, for
otherwise the decision on the applicability of the limitation to the case was
unnecessary.

§ 101. As Affected by State Laws.—This section controls over any
state statute providing a limitation for injuries or death, ® and where the
action is not begun within the two year period the suit must be dismissed.7
Thus where plaintiff brought his‘action under the act within the two year
limitation but it was terminated by a voluntary nonsuit, a subsequent suit
could not be instituted under the act after the two years’ limitation had
expired, even though such a right was granted by a state statute provid-
ing that when an action originally brought in time, is terminated but is
not conclusive, a subsequent action may be brought within a year.§

§ 102. Institution of Suit by Employee—Effect on Action for
Death.—Where the original action as brought by the injured employee is
based upon the law of the state, and there is no suggestion of fact in the
complaint indicating an intention to avail of the federal statute, it is not
permissible, upon his death, nearly three years after the action accrued,
and his representative had been substituted as plaintiff to so amend the
complaint as to state a cause of action within the act.®

It would seem, however, that in the decision of the New York case last
cited that an important point was overlooked. As § 6 provides that the
action shall be commenced “within two years from the day the cause of
action accrued,”’ and as was seen in treating the nature of the action,!° the
action for injuries and death are separate and distinct, and while the ac-
tion for injuries arise on the date thereof, that for death arises at the
earliest on the death of the party injured. Till then no right existed, and
it cannot be said to have accrued before by the fact of the injured party
having instituted a suit.11

§ 103. Limitation of Right, Not Remedy.—Irrespective of the fact
that the act of congress is paramount, when a law that is relied on as a

5. 226 U. S. 570, 57 L. Ed. 355, 33
S. Ct. 135, Ann. Cas. 1914B, 134.

6. Supersedes state statutes.—Shan-
non v. Boston, etc., Railroad (N. H.),
92 Atl. 167; Vaught v. Virginia, etc.,
Railroad (Tenn.), 179 S. W. 314. See,
also, Atlantic, etc, R. Co. v. Burnette,
239 U. S. 199, 36 S. Ct. 75.

7% Shannon v. Boston, etc., Railroad
(N. H.)j, 92 Atl. 167.

8. Vaught v. Virginia, etc., Railroad
(Tenn.), 179 S. W. 314. ~

9. Original ‘suit by employee, amend-
ment by administrator to come under
act.—Hughes v. New York, etc., R.
Co., 158 App. Div. 443, 143 N. Y. S.
603.

10. Beginning. of limitations for death.
—See ante, “General Nature; Sur-
vival,” § 76.

11. See Lindsay v. Chicago, etc., R.
Co. (Okla.), 155 Pac, 1173.
§§ 103-104 FEDERAL EMPLOYERS LIABILITY ACT. 232

source of an obligation in tort sets a limit to the existence of what it cre-
ates; other jurisdictions naturally have’ been disinclined to press the obliga-
tion farther.!2

The ordinary statute of limitations confers upon a defendant the privi-
lege of interposing a definite limitation of time as a bar to the enforce-
ment of a liability existing independently of the statute defining the limita-
tion. Such statutes, therefore, are merely limitations of the remedy.
Statutes like the present are more. They create a right of action condi-
tioned upon its enforcement within the prescribed period. The legislature,
having the power to create the right, may affix the conditions under which
it is to be enforced, and a compliance with those conditions is essential.1*
In The Harrisburg, 119 U. S. 199, 214, 30 L. Ed. 358, 7 S. Ct. 140, the
court said:

“The time within which the suit must be brought operates as a limita-
tion of the liability itself as created, and not of the remedy alone. It
is a condition attached to the right to sue at all. * * ™* ‘Time has
been made of the essence of the right, andthe right is lost if the time
is disregarded. The liability and the remedy are created by the same
statutes, and the limitations of the remedy are therefore to be treated
as limitations of the right.”

It follows that the failure of the defendant to plead the limitation, will
not defeat his right to insist that the action was brought too late when the
fact is apparent on the allegations of the declaration and the admissions
of the answer.14 Because unlike the rule applicable to a defense based
upon an ordinary statute of limitation, which requires the defendant to
plead the statute, that the plaintiff may have an opportunity of replying
and pleading any matter which would prevent the running of the statute,
the rule applicable to statutes creating a conditional right of action permits
the defendant to interpose a demurrer where, on an inspection of the plead-
ings, it is apparent that a case within the statute has not been stated.15
But where a petition upon its face does not show that a cause of action is
barred by the statutes of limitations a demurrer urged specially upon that
ground should be overruled.1®

§ 104. Amendment Setting up New Cause of Action.—Where
the original pleadings fail to state an action under the act, they cannot be
amended after the two years, limitation so as to bring the case under the
act.17

12. Limitation of right—By statute
itself— Atlantic, etc, R. Co. v. Bur-
nette, 239 U. S. 199, 36 S. Ct. 75.

138. Morrison v. Baltimore, etc., R.
Co., 40 App. Cas. 391, Ann. Cas. 1914C,
1026.

14. Necessity to plead—Atlantic,
etc. R. Co. v. Burnette, 239 U. S. 199,
36 S. Ct. 75, reversing 163 N. C. 186, 79
S. E, 414.

15. Morrison v. Baltimore, etc., R.
Co., 40 App. Cas. 391, Ann. Cas. 1914C,
1026.

16. Lindsay v. Chicago, etc., R. Co.
(Okla.), 155 Pac. 1173.

17. As to changing party plaintiff, see
ante, “Amendment of Declaration or
Complaint,” § 82.°

As to allege interstate commerce, see
post, “Amendment of Declaration or
Complaint,” § 137.
CHAPTER XVI.

JURISDICTION OF CourTS AND REMOVAL OF CAUSES.

1. Jurisdiction of Federal and State Courts, §§ 105-111.
a. Of the Federal Courts, §§ 105-107.
(1) In General, § 105.
(2) Admiralty Jurisdiction of Federal Courts, § 106.
(3) Of Territorial Courts on Admission to Statehood, § 107.
b. Jurisdiction of State Courts, §§ 108-111.
(1) As Concurrent with Federal Courts, § 108.
(2) Constitutionality of Grant of Jurisdiction, § 109.
(3) Duty of State Courts to Take Jurisdiction, § 110.
(4) Competency of Jurisdiction as Affected by Constitution of Jury, or
Verdict Not Unanimous, § 111.
2. Removal of Cause, §§ 112-120.
a. Prior to Express Prohibition Contained in Act, § 112.
b. Removal Subsequent to Express Prohibition Embodied in Act and Judi-
cial Code, § 113.
c. Retroactive Operation of Provision, § 114.
d. Constitutionality of Prohibition against Removal, § 115.
e. When Cause Shown under Act within Prohibition, § 116.
f. Fraudulent Allegations Designed to Prevent Removal, § 117.
g. Jurisdiction to Determine Removability, § 118.
h. Mandamus to Compel Remand, § 119.
i. Waiver of Right to Object to Removal, § 120.

§§ 105-111. Jurisdiction of Federal and State Courts.—§§
105-107. Of the Federal Courts.—§ 105. In General.—Previous to
any provision in the act to that effect, any cause of action within its terms
was within the jurisdiction of a federal circuit court, without reference to
the citizenship of the parties, where the requisite amount was involved, as
a suit of a civil nature arising under the laws of the United States.1 By §
6 of the act, as amended April 5, 1910, it was expressly provided that ac-
tions under the act might be brought in the circuit courts of the United
States; and now, of course, since the abolition of those courts, under the
Judicial Code, in the federal district courts.2 But this provision has no

s

1. Jurisdiction of the federal courts. 2. Action now brought in federal
—Cound v. Atchison, etc, R. Co. (C. district courts—Act of March 3, 1911,
C.), 173 Fed. 527; Zikos v. Oregon ch. 13, §§ 289-296, 36 Stat. Atl. 1167.
R., etc., Co. (C. C.), 179 Fed. 893, 904; “The action being one arising un-
Clark v. Southern Pac. Co. (C. C.), der a law of the United States, and
175 Fed. 122; Arizona, etc. R. Co. v. the requisite amount being in contro-
Clark, 235 U. S. 669, 59 L. Ed. 415, versy, the federal district court had
35 S. Ct. 210; Hoxie v. New York, original jurisdiction under § 24, Ju-
etc. R. Co., 82 Conn. 352, 73 Atl. 754,  dicial Code.” Arizona, etc. R. Co. v.
17 Am. & Eng. Ann. Cas. 324; fol- Clark, 235 U. S. 669, 59 L. Ed. 415,
lowed in Mondou v. New York, etc. 35 S. Ct. 210.

R. Co., 82 Conn. 373, 73 Atl. 762.

* 233
§ 105 FEDERAL EMPLOYERS LIABILITY ACT. 234
retroactive operation so as to give jurisdiction to a district court in which

the suit is not properly brought in the first instance.®

However, no concession by the defendant can give the court jurisdiction
on the ground that the parties were engaged in interstate commerce, if the
facts alleged show that such is not true, and jurisdiction was not otherwise
available. And it will be presumed that a cause is without the jurisdiction
of the United States District Court, unless the contrary affirmatively ap-
pears from the record. Jurisdiction depends primarily upon the allegations
of the bill, not upon the facts as they may subsequently turn out, nor upon
the actual sufficiency, in the opinion of the court, of the facts alleged to jus-
tify the relief prayed for. But by this is not meant, however, that a mere
claim in words is sufficient ; a substantial controversy must be presented,® and
a declaration or complaint need not specially allege that the parties were
engaged in interstate commerce, it is sufficient if it alleges facts to raise the
question of whether or not they were so engaged.7. Such a dispute or con-
troversy is within the jurisdiction of the federal courts if the correct con-
struction of the law, which is laid in the complaint as the basis of the right
of action, is necessarily involved in the decision, and where it is quite clear
that it is necessary to determine the meaning of ‘the phrase “person em-
ployed by such carrier in such commerce,” the court has jurisdiction, even
though the complaint should be dismissed because the plaintiff was not a
person so employed. But where the allegations of a petition show that
the plaintiff and defendant were engaged in mining coal, this was not in-
terstate commerce, and did not present any controversy as to the applica-
tion of the federal act so the court did not have jurisdiction.®

And where the question was not of jurisdiction ‘but of removal it is held
that a petition originally brought under a state statute between citizens of
different states and which showed that the plaintiff was a track repairer
and engaged in repairing tracks of an interstate road at the time he was
killed, sufficiently set forth a controversy under the act of which the court
would have had jurisdiction, even though it should have ultimately appeared
that the plaintiff was not engaged in interstate commerce at the time. How-
ever, as an amended petition was filed specially based upon the act and rais-
ing the amount of recovery to the jurisdiction of the district court, the court

8. Retroactive operation of Amend-
ment of 1910—Newell v. Baltimore,
etc. R. Co. (C. C.), 181 Fed. 698.

4. Concession to grant jurisdiction.
—Delaware, etc., R. Co. vw. Yurkonis,
137 C. C. A. 23, 220 Fed. 429, dismissed
for want of jurisdiction in 35 S. Ct.
902.

5. Presumption of, and sufficiency
of record to show jurisdiction —Shade
v. Northern Pac. R. Co. (D. C.), 206
Fed. 353.

6. Pacific Elect. R. Co. v. Los An-

geles, 194 U. S. 112, 48 L. Ed. 896, 24
S. Ct. 586; Stafford v. Norfolk, etc.,
R. Co. (D. C.), 202 Fed. 605.

7. Stafford v. Norfolk, etc., R. Co.
(D. C.), 202 Fed. 605.

8. Same—Presentation of contro-
versy.—Colasurdo v. Central Railroad
(C. C.), 180 Fed. 832, affirmed in 113
C. C. A. 379, 192 Fed. 901.

9. Delaware, etc. R. Co. v. Yurko-
nis, 137 C. C. A. 23, 220 Fed. 429, dis-
missed for want of jurisdiction in 35
S. Ct. 902.

>
235 §§ 105-108

JURISDICTION OF COURTS AND REMOVAL OF CAUSES.

held that though it had jurisdiction, it was not removable under the amend-
ment of 1910.1°

§ 106. Admiralty Jurisdiction of Federal Courts.—While the federal
act is general in its application to all employees of a railroad engaged in in-
terstate commerce, still whether or not it has the effect of repealing by impli-
cation a statutory limitation of liability in admiralty will not ‘be considered
on the denial of the jurisdiction of the admiralty court. For while the act had
the effect of superseding other laws it did not deprive the admiralty court
of jurisdiction and the claimant only objected thereto after appearing
and answering to the merits and the court having jurisdiction of the

. parties would determine the whole controversy; especially where it ap-
peared that the petitioner in admiralty had not been guilty of any negligence
for which it would be liable as a matter of law, and that the claimant could
not have had the case submitted to a jury even if tried in a law court under
the federal act.11

§ 107. Of Territorial Courts on Admission to Statehood.—Where
an action under the act was pending in the territorial courts of the territory
.of Arizona, upon its admission to statehood, it was properly transferable
to the appropriate state court, under the terms of the enabling act which
provided that pending actions jurisdiction of which was concurrent between
the state and federal courts should be so transferred, subject to be removed
as provided by law.12 However, as both federal and state courts had con-
current jurisdiction, error, if any, in not transferring an action to the state
court but to the federal district court, was waived by defendant’s appearing
in the district court and answering to the merits without objection.14

§§ 108-111. Jurisdiction of State Courts.—§ 108. As Concur-
rent with Federal Courts.—The law is settled that courts of general ju-
risdiction in the several states have power to decide cases involving the
rights of litigants under the constitution or statutes of the United States,
unless deprived of the right so to do by the terms of the federal constitution
or acts of congress.14 And previous, to the existence of any express: provi-

10. Stafford v. Norfolk, ete., R. Co.
(D. C.), 202 Fed. 605.

11. Admiralty jurisdiction. — The
Passaic, 121 C. C. A. 466, 204 Fed.
266, affirming 190 Fed. 644.

12, Of territorial courts on admission
to statehood.—Arizona, etc., R. Co. v.
Clark, 235 U. S. 669, 59 L. Ed. 415,
35 S. Ct. 210.

18. Same—Waiver of transfer.—Ar-
izona, etc. R. Co. v. Clark, 235 U. S.
669, 59 L. Ed. 415, 35 S. Ct. 210.

14. Concurrent jurisdiction of state
courts—General rule.—United States.—
Arizona, etc, R. Co. v. Clark, 235 U.
S. 669, 59 L. Ed. 415, 35 S. Ct. 210;

Gibson v. Bellingham, etc., R. Co. (D.
C.), 213 Fed. 488.

Arkansas.—St. Louis, etc, R. Co. v.
Hesterly, 98 Ark. 240, 135 S. W. 874.

Indiana—Southern R. Co. v. How-
erton, 182 Ind. 208, 105 N. E. 1025,
106 N. E. 369, reversing 101 N. E. 121,
and citing Pittsburgh, etc., R. Co. wv.
Mitchell, 175 Ind. 196, 91 N. E. 735,
93 N. E. 996.

Iowa.—Bradbury v. Chicago, etc., R.
Co., 149 Iowa 51, 128 N. W. 1, 40 L.
R. A., N. S., 684.

Kentucky.—Chesapeake, etc., R. Co.
v. Kelly, 161 Ky. 655, 171 S. W. 185.

Minnesota—Owens v. Chicago, etc.,
§ 108

FEDERAL EMPLOYERS’ LIABILITY ACT.

236

sion to that effect in the Employers’ Liability Act itself, it was well settled
that actions arising thereunder might be maintained in the state as well as
the federal courts where their jurisdiction, as prescribed by local laws, was
adequate to the occasion.15 In Minneapolis, etc., R. Co. v. Bombolis (U. 8.),

36 S. Ct. 595, 598, the court said:

“Lawful rights of the citizen, whether arising from a legitimate exercise

of state or national power, unless excepted by express constitutional
limitation or by valid legislation to that effect, are concurrently subject
to be enforced in the courts of the state or nation when such rights
come within the general scope of the jurisdiction conferred upon such
courts by the authority, state or nation, creating them. This principle
was made the basis of the first federal judiciary act, and has prevailed
in theory and practice ever since as to rights of every character, whether
derived from constitutional grant or legislative enactment, state or
national. In fact, this theory and practice is but an expression of the
principles underlying the constitution, and which cause the govern-
ments and courts of both the nation and the several states not to be
strange or foreign to each other in the broad sense of that word, but
to be all courts of a common country, all within the orbit of their lawful
authority being charged with the duty to safeguard and enforce the
right of every citizen without reference to the particular exercise of
governmental power from which the right may have arisen, if only the
authority to enforce such right comes generally within the scope of the

jurisdiction conferred by the government creating them.”

But the existence of such concurrent jurisdiction in the state courts, as
well as the power of congress to confer it, having been denied by the Su-
preme Court of Errors of Connecticut in the case in Hoxie v. New York,

R. Co., 113 Minn. 49, 128 N. W. 1011.

Missouri—Fish v. Chicago, etc., R.
Co., 263 Mo. 106, 172 S. W. 340.

Texas—Missouri, etc, R. Co. w.
Blalack (Tex. Civ. App.), 128 S. W.
706, 707, affirmed in 105 Tex. 296, 147
S. W. 559.

15. Same—Under the Act of April
22, 1908.—United States—Second Em-
ployers’ Liability Cases, 223 U. S. 1,
56 L. Ed. 327, 32 S. Ct. 169, 38 L. R.
A., N. S., 44; St. Louis, etc, R. Co.
2. Conley, 110 C. C. A. 97, 187 Fed.
949; Zikos v. Oregon R., etc., Co. (C.
C.), 179 Fed. 893.

Florida—Atlantic Coast Line R. Co.
v. Whitney, 62 Fla. 124, 56 So. 937.

Towa.—Bradbury wv. Chicago, etc., R.
Co., 149 Iowa 51, 128 N. W. 1, 40 L.
R. A., N. S., 684; McCoullough zv. Chi-

cago, etc., R. Co., 160 Iowa 524, 142
N. W. 67.
Kentucky. — Lemon v. Louisville,

etc, R. Co., 137 Ky. 276, 125 S. W.
701.

Michigan —Holmberg v. Lake Shore,
etc., R. Co. (Mich.), 155 N. W. 504,
506.

Minnesota—Owens v. Chicago, etc.,
R. Co., 113 Minn. 49, 128 N. W. 1011.

Missouri—White v. Missouri Pac.
R. Co. (Mo.), 178 S. W. 83.

Oklahoma.—Missouri, etc., R. Co. uv.
Lenahan, 39 Okla. 283, 135 Pac. 383.

Texas—St. Louis, ete, R. Co. w.
Geer (Tex. Civ. App.), 149 S. W. 1178,
1180, writ of error denied in 154 §S.
W. xix, no op., writ of error granted
‘to (Geer v. St. Louis, etc., R. Co.) 106
Tex. 649, no op.

The enforcement of rights under the
act of 1908, regulating the liability of
interstate railway carriers for death
or injury of their employees while en-
gaged in interstate commerce, can not
be regarded as impliedly restricted to
the federal courts, in view of the con-
current jurisdiction provision of the
judiciary act of August 13, 1888 (25
Stat. 433, c. 866 [U. S. Comp. St. 1901,
p. 508]), to the original employers’
liability act, which, instead of granting
jurisdiction to the state courts, pre-
supposes that they already possess it.
Missouri, etc., R. Co. v. Lenahan, 39
Okla. 283, 185 Pac. 383.
237 JURISDICTION OF COURTS AND REMOVAL OF CAUSES. § 108

etc., R. Company,!® congress enacted the Amendment of April 5, 1910, in
which § 6 is amended so as to provide, inter alia, that: ‘The jurisdiction
of the courts of the United States under this act shall be concurrent with
that of the courts of the several states ;” the object of such express provision
being, as stated in the report of the Senate Judiciary Committee, to leave no
excuse for the courts of other states to follow in the error of the Supreme
Court of Errors of Connecticut,17 and the jurisdiction of the state courts is
now unquestionable.18

This particular provision added nothing to the act, of course, since, as
stated, the existence of concurrent jurisdiction in the state courts was al-
ready well established; hence there is no merit in the contention made in
cases brought since this amendment, upon causes of action arising before,
that the jurisdiction of the federal courts is, as to those actions, exclusive.1®
The provision therefore simply confirmed the existence of the concurrent
jurisdiction of the state courts and plaintiff’s privilege to have the case tried
as of right in the state courts.2° So even in a case in which the pleadings

16. Hoxie v. New York, etc., R. Co.,
82 Conn. 352, 73 Atl. 754, 17 Am. &
Eng. Ann. Cas. 324, followed in Mon-
dou v. New York, etc, R. Co., 82
Conn. 373, 73 Atl. 762, and reversed in
Second Employers’ Liability Cases, 223
U.S. 1, 56 L. Ed. 327, 32 S. Ct. 169, 38
L. R. A. N.S. 44.

17. Express provision of act con-
ferring jurisdiction—Zikos v. Oregon
R., etc., Co. (C. C.), 179 Fed. 893, 902.

18. United States—Southern R. Co.
v. Lloyd, 239 U. S. 496, 36 S. Ct. 210;
Minneapolis, etc., R. Co. v. Bombolis
(U. S.), 36 S. Ct. 595.

Towa. — McCoullough v. Chicago,
etc, R. Co., 160 Iowa 524, 142 N.
W.. 67.

Vermont.—Lynch v. Central Ver-
mont R. Co. (Vt.), 95 Atl. 683, 685._

West Virginia—Easter v. Virginian
R. Co. (W. Va.), 86 S. E. 37.

“In Bradbury v. Chicago, etc. R.
Co., 149 Iowa 51, 128 N. W. 1, 40 L.
R. A. N. S., 684, * * * we held
that the implications of the congres-
sional act in question permitted a con-
current jurisdiction to the state courts
for its enforcement within their re-
spective states. Since that time
(April 5, 1910) congress has enacted
an amendment to the original act
whereby it has in express terms rec-
ognized such concurrent jurisdiction
in the state courts. If anything more
were needed to remove the question
beyond the realm of debate, it has
been furnished by the holding of the
Supreme Court of the United States
in Second Employers’ Liability Cases,
223 U. S. 1, 56 L. Ed. 327, 32 S. Ct.

169, 38 L. R. A., N. S., 44.” McCoul-
lough v. Chicago, etc., R. Co., 160
Iowa 524, 142 N. W. 67.

19. Effect of express provision as
to cases previously arising. — United
States—Second Employers’ Liability
Cases, 223 U. S. 1, 56 L. Ed. 327, 32
S. Ct. 169, 38 L. R. A., N. S., 44; Zikos
v. Oregon R,, etc. Co. (C. C.), 179
Fed. 893, 901.

Towa.—Bradbury v. Chicago, etc., R.
Co., 149 Iowa 51, 128 N. W. 1, 40 L,.
R. A. N. S., 684.

Minnesotan—Owens v. Chicago, etc.,
R. Co., 113 Minn. 49, 128 N. W. 1011.

Texas —Gulf, etc, R. Co. v. Lester
(Tex. Civ. App.), 149 S. W. 841, 843;
St. Louis, etc, R. Co. v. Geer (Tex.
Civ. App.), 149 S. W. 1178, 1180, writ
of error denied in 154 S. W. xix, no
op., writ of error granted to (Geer vw.
St. Louis, etc. R. Co.) 106 Tex. 649,
no op.

20. Act 1910 confirms right.—Ala-
bama.—Atlantic Coast Line R. Co. v.
Jones, 9 Ala. App. 499, 63 So. 693.

Kentucky.—lIllinois Cent. R. Co. vw.
Doherty, 153 Ky. 363, 155 S. W. 1119;
St. Louis, etc., R. Co. v. McWhirter,
145 Ky. 427, 140 S. W. 672, reversed
on other grounds in 33 S. Ct. 858;
Chesapeake, etc., R. Co. v. Kelly, 161
Ky. 655, 171 S. W. 185.

Louisiana—Gordon v. New Orleans,
etc., R. Co., 135 La. 137, 64 So. 1014;
Penny v. New Orleans, etc., R. Co.
135 La. 962, 66 So. 313.

Missouri—McIntosh v. St. Louis,
etc., R. Co., 182 Mo. App. 288, 168
S. W. 821; Hardwick v. Wabash R.
Co., 181 Mo. App. 156, 168 S. W. 328;
§§ 108-111 FEDERAL EMPLOYERS LIABILITY ACT. 238

do not show whether the common law, a state statute or the federal act will
ultimately govern the case, the state courts have jurisdiction.2+

§ 109. Constitutionality of Grant of Jurisdiction.—There is no
doubt as to the constitutionality of this provision of the act.??

§ 110. Duty of State Courts to Take Jurisdiction.—The state
courts are not free to decline jurisdiction of cases under the act for the rea-
son that it is not in harmony with the policy of the state. The claim that
the different rule imposed by the act would result in inconvenience and con-
fusion affords no reason for declining a jurisdiction conferred by law.?%
The constitution of the United States being the supreme law of the land,
state and federal courts are alike subject to its provisions, and the refusal
of the former to enforce rights conferred iby congress would put them in
the same category as would a refusal to entertain causes flowing from any
other recognized source of authority. It would be an anomaly in our system
if state tribunals, after having so long entertained the grievances of litigants,
where rights are traceable to congressional legislation, should refuse to do
so further because of the fact that there has been provided, by a power
clearly competent, different rules of liability for those engaged in interstate
commerce from those which may be fixed. by statute or recognized by de-
cisions in the several states.24 So too, the state courts cannot by declining to
appoint an administrator when there are no other assets, thus nullify the
federal act; because as the administrator is the only one to sue, such would
be the effect of a refusal to make the appointment.25

§ 111. Competency of Jurisdiction as Affected by Constitution of
Jury, or Verdict Not Unanimous.—When treating of matters of practice

White v. Missouri Pac. R. Co. (Mo.),
178 S. W. 83, 84.

North Carolina—Fleming v. Nor-
folk, etc., R. Co., 160 N. C. 196, 76 S.
E. 212; Lloyd v. North Carolina, etc.,
R. Co., 162 N. C. 485, 78 S. E. 489;
Horton v. Seaboard, etc., R. Co., 157
N. C. 146, 72 S. E. 958, reversed on
other grounds.

Oregon. — Kamboris v. Oregon-
Washington R., etc., Co., 75 Ore..358,
146 Pac. 1097.

Pennsylvania.—Golligher v. Pennsyl-
vania R. Co., 237 Pa. 152, 85 Atl. 129.

21. Cases under common law, state
statute and federal act.—Wabash R.
Co. v. Hayes, 234 U. S. 86, 58 L. Ed.
1226, 34 S. Ct. 729; Corbett v. Boston,
etc. Railroad (Mass.), 107 N. E. 60.

22. Constitutionality of provision as
to concurrent  jurisdiction—Second
Employers’ Liability Cases, 223 U. S.
1, 56 L. Ed. 327, 32 S. Ct. 169, 38 L. R.
A., N. S., 44, reversing Hoxie v. New

York, etc, R. Co., 82 Conn. 352, 73
Atl. 754, 17 Am. & Eng. Ann. Cas. 324,
followed in Mondou v. New York, etc.,
R. Co. 82 Conn. 373, 73 Atl. 762;
Zikos v. Oregon R., etc., .Co. (C.
C.), 179 Fed. 893; Teel v. Chesapeake,
etc., R. Co., 123 C. C. A. 240, 204 Fed.
918, 47 L. R. A. N. S., 21.

23. Duty of state courts to take ju-
risdiction—Second Employers’ Liabil-
ity Cases, 223 U.S. 1, 56 L. Ed. 327, 32
S. Ct. 169, 38 L. R. A, N. S., 44, re-
versing Hoxie v. New York, etc. R.
Co., 82 Conn. 352, 73 Atl. 754, 17 Am.
& Eng. Ann. Cas. 324, followed in
Mondou v. New York, etc., R. Co., 82
Conn. 373, 73 Atl. 762. See, also, Mid-
land Valley R. Co. v. Le Moyne, 104
Ark. 327, 148 S. W. 654.

24, Zikos v. Oregon R., etc., Co. (C.
C.), 179 Fed. 893, 901.

25. Refusal to appoint administra-
tor for sole purpose of suit—Howard
v. Nashville, etc., R. Co. (Tenn.), 179
S. W. 380.
239 § 111

JURISDICTION OF COURTS AND REMOVAL OF CAUSES.

under the act it will be seen that congress in committing to state courts the
duty of trying cases arising thereunder, such cases were tried according to
the state rules of procedure, provided the parties were not thereby deprived
of some substantial right under the act, characterized under the name of
procedure.2° However, 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 practice and procedure of the forum and
under the jury system adopted, subject, of course, to such conditions as
congress may attach to the legislation; and congress did not, in the legisla-
tion here in question, attempt to attach any conditions to the practice and.
procedure through which the jurisdiction of state courts of competent juris-
diction might be exercised in the enforcement of rights arising under this
act.27 In Second Employers’ Liability Cases, 223 U. S. 1, 56 L. Ed. 327,
32 S. Ct. 169, 38 L. R. A., N. S., 44, the supreme court said that:

“There is not here involved any attempt by congress to enlarge or regu-
late the jurisdiction of state courts, or to control or affect their modes
of procedure, ‘but only a question of the duty of such a court, when its
ordinary jurisdiction, as prescribed by local laws, * * * is in-
voked in conformity with those laws, to take cognizance of an action
to enforce a right of civil recovery arising under the act of congress
and susceptible of adjudication according to the prevailing rules of
procedure.”

The state is often called upon to enforce and administer the federal laws
in her courts; yet it is only required to do so in the manner provided by, and
in harmony with, its law, and cannot be compelled to follow the procedure
provided by the federal government for its own courts.28 Nor does the
creation of a right by congress, require that it be enforced according to the
mode in which power and jurisdiction are exercised in tribunals of the
United States.29 And in enforcing federal rights the state courts are not
to be treated as federal courts and subjected pro hoc vice to the limitations

26. Competency of jurisdiction as Carnahan (Va.), 86 S. E. 863, 865, af-

affected by verdict not unanimous.—
See post, “State Rules as Governing,”
§ 123.

27. No conditions attached to en-
forcement of act——Chesapeake, etc.,
R. Co. v. Kelly, 161 Ky. 655, 171 S.
W. 185, reversed on other grounds in
36 S. Ct. 630.

28. State rules of procedure prevail.
—Minneapolis, etc, R. Co. v. Bombo-
lis (U. S.), 36 S. Ct. 595; St. Louis,
etc, R. Co. v. Brown (Okla.), 144
Pac. 1075, affirmed in 36 S. Ct. 602.

29. On creation of right, procedure
does not also attach—Minneapolis,
etc., R. Co. v. Bombolis (U. S.), 36
S. Ct. 595; Chesapeake, etc., R. Co. v.

firmed in 36 S. Ct. 594.

In Chesapeake, etc., R. Co. uv. Car-
nahan (Va.), 86 S. E. 863, 865, the
court said: “Upon reason and author-
ity it is not essential to the enforce-
ment of a right created by a federal
law that provisions of the federal con-
stitution regarding the administration
of the federal law be followed. The
enforcement of a federal right, as it
seems to us from the authorities, does
not differ from the enforcement of
rights created by other sovereignties
than the United States, in that it

‘draws with it the necessity of enforce-

ment in the manner prescribed by the
federal constitution for the adminis-
tration of justice.”
§ 111

of the federal constitution.3°

FEDERAL EMPLOYERS’ LIABILITY ACT.

240

To the contrary contention in Minneapolis,

etc., R. Co. v. Bombolis (U. S.), 36 S. Ct. 595, 598, the court said:

“And, of course, if this principle were well founded, the converse would
also be the case, and both federal and state courts would, by fluctuating

hybridization, be bereft of all real, independent existence.

That is to

say, whether they should be considered as state or as Federal courts
would from day to day depend not upon the character and source of
the authority with which they were endowed by the government cre-
ating them, but upon the mere subject-matter of the controversy which

they were considering.”

But it has been contended that courts, empowered to try cases with a
jury of less than twelve, or to receive a verdict which was not unanimous,
could not try cases under the act, because (1) it would be violative of the
“due process of law” clause of the federal constitution, and (2) that such
courts were not ‘‘competent” within the meaning of that term as used in §
6 of the amendment of 1910. Both of which have been determined con-

trary to the contention.?4

A trial under a state statute abridging the number of jurors, or dispensing
with the feature of unanimity, is not a denial of “due process” within the
inhibition of the Fourteenth Amendment.?2

30. State courts enforcing federal
rights, are not federal courts.—Minne-
apolis, etc, R. Co. v. Bombolis (U.
S.), 36S. Ct. 595.

31. Juries of less than 12 and ver-
dicts not unanimous.—United States.—
Gibson v. Bellingham, etc., R. Co. (D.
C.), 213 Fed. 488; Minneapolis, etc.,
R. Co. v. Bombolis (U. S.), 36 S. Ct.
"595.

Kentucky.—Louisville, etc., R. Co. v.
Winkler, 162 Ky. 843, 173 S. W. 151;
Chesapeake, etc., R. Co. v. Kelly, 161
Ky. 655, 171 S. W. 185, reversed on
other grounds, affirmed on this point,
in 36 S. Ct. 630; Louisville, etc., R. Co.
v. Stewart, 163 Ky. 823, 174 S. W. 744,
affirmed in 36 S. Ct. 586; Cincinnati,
etc., R. Co. v. Claybourne (Ky. App.),
183 S. W. 903; Louisville, etc., R. Co.
v. Holloway (Ky. App.), 181 S. W.
1126; Chesapeake, etc., R. Co. v. Korn-
hoff (Ky. App.), 180 S. W. 523; Ches-
apeake, etc, R. Co. v. Shaw (Ky.
App.), 182 S. W. 653; Cincinnati, etc.,
R. Co. v. Clarke (Ky. App.), 185 S.
W. 94, 95.

Minnesota.—Bombolis v. Minneapo-
lis, etc., R. Co., 128 Minn. 112. 150 N.
W. 385, affirmed in 36 S. Ct. 595; Win-
ters v. Minneapolis, etc., R. Co., 126
Minn. 260, 148 N. W. 106.

Oklahoma.—St. Louis, etc., R. Co. v.
Brown (Okla.), 144 Pac. 1075, affirmed
in 36 S. Ct. 602.

Washington. — Donaldson wv Great

Northern R. Co.
133.

“Following Winters v. Minneapolis,
etc., R. Co., 126 Minn. 260, 148 N. W.
106, we hold that, in an action in a
state court based upon the Federal
Employers’ Liability Act, the  five-
sixths jury law (G. S. 1913, § 7805)
applies.” Bombolis v. Minneapolis,
etc., R. Co., 128 Minn. 112, 150 N. W.
385, 387, affirmed in 36 S. Ct. 595.

“In cases brought in the state courts
under the Federal Employers’ Liabil-
ity Act, three-fourths or more of the
jury may return the verdict, as pro-
vided in § 2268 of the Kentucky Stat-
utes.” Louisville, etc., R. Co. v. Win-
kler, 162 Ky. 843, 173 S. W. 151.

See Arizona Eastern R. Co. vw.
Bryan (Ariz.), 157 Pac. 376, where the
error, if any, in directing that a ver-
dict not unanimous might be returned
was declared harmless as the verdict
returned was unanimous.

32. Same—As denial of due process
of law.—United States.—Gibson v. Bel-
lingham, etc., R. Co. (D. C.), 213 Fed.
488, 490, citing Hurtado v. California,
110 U. S. 516, 28 L. Ed. 232, 4 S. Ct.
111, 292; Kennard v. Morgan, 92 U.
S. 480, 23 L. Ed. 478; Davidson v.
New Orleans, 96 U. S. 97, 24 L. Ed.
616.

Kentucky—Chesapeake, etc. R. Co.
v. Kelly, 161 Ky. 655, 171 S. W. 185,

(Wash.), 154 Pac.
241 JURISDICTION OF COURTS AND REMOVAL OF CAUSES. § 111

Nor can the contention be sustained that a state court is ‘not a court of
“competent jurisdiction” for the reason that the Seventh Amendment to the
constitution provides for a trial by jury, which has been held to mean 12
men unanimously consenting, and the Constitution and laws of the state pro-
vide for a verdict by the consent of a less number than 12. The Seventh
Amendment provides: “In suits of common law, where the value in contro-
versy shall exceed $20, the right of trial by jury shall be preserved.” Though
this provision contemplates a jury as constituted at common law of which
the unanimous verdict of 12 men was an essential feature, it has been held
by a long line of decisions that the Seventh Amendment does not apply to
the states, and that a state is not inhibited by the federal constitution from
providing for a jury of less than 12 men, or for a verdict that is not unani-
mous.%%. It is true that the right to jury trial which the Seventh Amend-
ment secures is a substantial one in that it exacts a substantial compliance
with the common-law standard as to what constitutes a jury. But this

reversed on other grounds in 36 S.
Ct. 630.

Minnesota.—Winters v. Minneapolis,
etc.,, R. Co., 126 Minn. 260, 148 N. W.
106.

Oklahoma.—St. Louis, etc., R. Co. wv.
Brown (Okla.), 144 Pac. 1075, affirmed
in 36 S. Ct. 602.

33. Same — Competency of such
courts as affected by Seventh Amend-
ment.—United States. — Minneapolis,

etc., R. Co. v. Bombolis (U. S.), 36
S. Ct. 595; Gibson v. Bellingham, etc.,
R. Co. (D. C.), 213 Fed. 488, 489.

Virginia—Chesapeake, etc. R. Co.
v. Carnahan (Va.), 86 S. E. 863, af-
firmed in 36 S. Ct. 594.

Washington.— Donaldson v. Great
Northern R. Co. (Wash.), 154 Pac.
133.

“Appellant contends that the in-

struction that an agreement by ten ju-
rors would be sufficient is in violation
of the Seventh Amendment to the
constitution of the United States,
which has been generally construed to
contemplate a trial by twelve jurors.
It is, however, well settled that this
amendment does not apply to the
states, and that the verdict in an ac-
tion in the state court under the Fed-
eral Employers’ Liability Act is con-
trolled, not by the provision of the
national constitution, but by the laws
of the state where the suit is pend-
. ing.” Donaldson v. Great Northern
R. Co. (Wash.), 154 Pac. 133, 135.

In Chesapeake, etc., R. Co. v. Car-
nahan (Va.), 86 S. E. 863, 866, affirmed
in 36 S. Ct. 594, the court said: “This
contention is without merit. Section
6 of the Employers’ Liability Act, as

Fed Act—16

amended by act April 5, 1910, ex-
pressly provides that the federal
courts shall have concurrent jurisdic-
tion with the state courts of cases
arising under the act, and that no case
brought in a state court shall be re-
moved to a federal court. How else
is a state court to exercise its juris-
diction in such a case, except accord-
ing to the procedure provided for in
its own statutes? The statutes of this
state make no provision for a trial in
civil cases by a jury of 12, except for
some special reason, when a special

.jury may be summoned under § 3158

of the Code, and the allowance or re-
fusal of a special jury is a matter
resting in the sound discretion of the
court. * * * Tt is inconceivable
that the supreme court in the Second
Employers’ Liability Cases, in holding
that the right of the state courts of
general jurisdiction to enforce a right
under this law created an implication
of duty to enforce it, intended that
this ruling should be restricted to
courts of states providing a jury of
12. Federal rights are recognized and
enforced in the state courts, as are
any other rights which are the basis
of a litigation, whether arising out of
state or foreign law. The constitution
of the United States contains no pro-
hibition to the enforcement of those
rights in the state courts, in accord-
ance with their established mode of
procedure, and the Seventh Amend-
ment is a limitation on the adminis-
tration of law in the federal courts,
not a limitation on the conduct of lit-
igation, on whatever rights based, in
the state courts.”
§ 111 FEDERAL EMPLOYERS’ LIABILITY ACT. 242

truth has not the slightest tendency to support the contention that the sub-
stantial right secured extends to, and is operative in, a field to which it is
not applicable and with which it is not concerned. It is also true that al-
though territorial courts of the United States are not constitutional courts,
nevertheless, as they are courts created by congress, and exercise jurisdic-
tion alone by virtue of power conferred by the law of the United States,
the provisions of the Seventh Amendment are applicable in such: courts.
But this affords no ground for the proposition that the amendment is ap-
plicable and controlling in proceedings in state courts deriving their author-
ity from state law, in the teeth of the express and settled doctrine that the
amendment does not relate to proceedings in such courts.34

The United States Supreme Court has disposed of appeals from the
courts of Minnesota, Virginia, Kentucky and Oklahoma, involving the ques-
tion of whether or not the Seventh Amendment applied to the courts of
the states and the validity of verdicts returned by juries of less than twelve
or a verdict by a jury of 12 that was not unanimous. The court held that
the Seventh Amendment had no application; that the Minnesota verdict
which was returned by five-sixth of the jury after they had been out twelve
hours and unable to reach an unanimous verdict; that the Virginia jury of
seven; and that the Kentucky and Oklahoma juries of twelve, nine of
whom could return a verdict, were all valid in actions under this act.35
In Minneapolis, etc., R. Co. v. Bombolis (U. S.), 36 S. Ct. 595, the court
said :

“Two propositions as to the operation and effect of the Seventh Amend-
ment are as conclusively determined as is that concerning the nature
and character of the jury required by that amendment where applicable.
(a) That the first ten amendments, including, of course, the seventh,
are not concerned with state action, and deal only with Federal action.
*  %« And, as a necessary corollary, (b) that the Seventh Amend-
ment applies only to proceedings in courts of the United States, and
does not in any manner whatever govern or regulate trials by jury
in state courts, or the standards which must be applied concerning the
same. * * * So completely and conclusively have both of these
principles been settled, so expressly have they been recognized without
dissent or question almost from the beginning in the accepted interpre-
tation of the constitution, in the enactment of laws by congress and
proceedings in the federal courts, and by state constitutions and state
enactments and proceedings in the state courts, that it is true to say that
to concede that they are open to contention would be to grant that
nothing whatever had been settled as to the power of state and federal:
governments or the authority of state and federal courts and their mode
of procedure from the beginning. Doubtless it was this view of the

34. Minneapolis, etc, R. Co. vw. R. Co. uv. Stewart (U. S.), 36 S. Ct.
Bombolis (U. S.), 36 S. Ct. 595, 597. 586; St. Louis, etc., R. Co. v. Brown
35. Minneapolis, etc, R. Co. v. Bom- (U. S.), 36 S. Ct. 602; Chesapeake,
bolis (U. S.), 36 S. Ct. 595, in which etc., R. Co. v. Kelly (U. S.), 36S. Ct.
the following cases were disposed of: 630; Chesapeake, etc., R. Co. v. Gainey
Chesapeake, etc., R. Co. v. Carnahan (U. S.), 36 S. Ct. 633.
(U. S.), 36 S. Ct. 594; Louisville, etc.,
243 JURISDICTION OF COURTS AND REMOVAL OF CAUSES. § 111

contention which led the supreme court of Minnesota in this case and
the courts of last resort of the other states in the cases which were
argued with this to coincide in opinion as to the entire want of founda-
tion for the proposition relied upon, and in the conclusion that to ad-
vance it was virtually to attempt to question the entire course of judi-
cial ruling and legislative practice, both state and national, which had
prevailed from the commencement. * * * Indeed, it may not be
doubted that it must have been the same point of view which has
caused it to come to pass that during the number of years which have
elapsed since the enactment of the employers’ liability act and the
safety appliance act, and in the large number of cases which have been
tried in state courts, growing out of the rights conferred by those acts,
the judgments in many of such cases having been here reviewed, it
never entered the mind of anyone to suggest the new and strange view
concerning the significance and operation of the Seventh Amendment
which was urged in this case and the cases which were argued with it.”

Congress, having no right to create state courts or to provide rules for
their procedure, must have contemplated that the competency of their ju-
risdiction should be determined by the principles prevailing in the state
creating them.26 And it will be charged with knowledge that certain states
provided for a verdict without the unanimous consent of 12 men; so if it
had intended that a rule of procedure or method of trial should be invoked
to test the competency of the state court’s jurisdiction, it would have ex-
pressly so provided.37 ;

The word “competent” as used in the statute is descriptive of the nature
and extent of the court’s power to hear and determine causes, not to the
means by which it is exercised. Its power to take cognizance of and re-
dress a wrong is the primary question to be considered in determining its
“competency ;” the particular method of trial adopted is a secondary mat-
ter, and becomes important only when it is such as to come in conflict with
the Fourteenth Amendment, and amount to a deprivation of rights there
guaranteed, without due process of law. ‘Then and only then could its
method of procedure affect its power or jurisdiction. When its method of
procedure satisfies this test, we must look to the authority creating it, and
defining its powers and jurisdiction, to determine whether it is ‘““competent,”
whether it has the power to hear and determine the particular controversy
and afford the appropriate relief.28 In Second Employers’ Liability Cases,
223 U.S. 1, 56 L. Ed. 327, 32 S. Ct. 169, 38 L. R. A., N. S., 44, when it was
said:

“We conclude that rights arising under the act in question may be en-
forced, as of right, in the courts of the states when their jurisdiction, as
prescribed by local laws, is adequate to the occasion.”

36. Power of congress over state
courts and knowledge of procedure.—
Minneapolis, etc., R. Co. v. Bombolis
(U. S.), 36 S. Ct. 595; Gibson v. Bel-
lingham, etc., R. Co. (D. C.), 213 Fed.
488; Winters v. Minneapolis, etc., R.

Co., 126 Minn. 260, 148 N. W. 106.
87. Gibson «7. Bellingham, etc. R.
Co. (D. C.), 213 Fed. 488.
88. Test of competency.—Gibson v.
Bellingham, etc., R. Co. (D. C.), 218
Fed. 488.
§§ 111-112 FEDERAL EMPLOYERS’ LIABILITY ACT. 244

The expression “adequate to the occasion,” evidently means when, accord-
ing to the state law, the state courts have jurisdiction over the subject-mat-
ter and the parties.?9

Therefore where it appears that the court of the state in which the ac-
tion is brought has power to hear and determine similar controversies; and
it also appears from the decisions of the state supreme court that such
courts may take cognizance of actions for personal injuries, and that actions
for such injuries are brought and tried, not only when the injury occurred
within the state, but where the right of action arose outside of the state;
in the latter event, the right of the plaintiff to recover is determined by the
laws of the state where his injury was sustained, but the rules of procedure
and methods of trial employed are those of the tribunal whose aid is in-
voked ; there is no sound reason why the principle should be different when
a right of action created by a federal statute is sought to be enforced in a
state court. The right of trial by a jury of 12, where the assent of all is
necessary to a verdict, is but a method of trial prevailing in the federal
courts. The fact that it is prescribed by the federal constitution does not
change its essential character. It was intended to regulate the procedure
of trials in the federal courts, not to be annexed as a condition to the en-
forcement of a right of action.?°

§§ 112-120. Removal of Cause.—§ 112. Prior to Express Pro-
hibition Contained in Act.—Previous to the incorporation of the prohibi-
tion against removal into § 6 of the act by the amendment of 1910, causes
arising under the act and brought in the state courts might be removed to
the federal courts subject to the rules applicable in other cases! There-
fore, if an action in which the provisions of this act are relied on is brought
in the state court, and no motion in due time is made by the defendant to
remove it to the federal court, the state court may apply its provisions. But
if a motion is made, in due time, in the state court, by the defendant, to re-
move the action to the federal court, this motion must prevail.4?

In accordance with those rules, it was held that an action brought in re-
liance upon the act of 1908, was not removable as one involving a federal
question where the declaration contained no statement or suggestion that the
result of the suit would depend upon the construction of the act.44 In Nel-

39. St. Louis, etc., R. Co. v. Brown Kentucky.—Lemon v. Louisville, etc.,
(Okla.), 144 Pac. 1075, affirmed in 36 R. Co. 137 Ky. 276, 125 S. W. 701.
S. Ct. 602. See, also, Ft. Smith, etc, R. Co. wv.

40. Gibson v. Bellingham, etc, R. Blevins, 35 Okla. 378, 130 Pac. 525,
Co. (D. C.), 213 Fed. 488, 490. See, which recognizes the right to remove
also, Second Employers’ Liability where plaintiff amends his petition so
Cases, 223 U. S. 1, 56 L. Ed. 327, 32 as to make a removable case, but

S. Ct. 169, 38 L. R. A., N. S., 44. holds the amendment of 1910 not re-
41. Removal of cause—Prior to ex-  troactive so as to prevent removal.
press prohibition against removal. — 42. Lemon v. Louisville, etc., R. Co.,

United States—Zikos v. Oregon R., 137 Ky. 276, 125 S. W. 701.
etc., Co. (C. C.), 179 Fed. 893, 900. 43. Same—Where declaration failed

Georgia—Calhoun v. Central, etc, to show case arising under the act.—
R. Co., 7 Ga. App. 528, 67 S. E. 274. Nelson v. Southern R. Co. (C. C),
245 JURISDICTION OF COURTS AND REMOVAL OF CAUSES. § 112

son v. Southern R. Co. (C. C.), 172 Fed. 478, 484, the court said:

“The contention of learned counsel seems to be that, because it is a case
in which the right to recover is based on an act of congress, therefore
the construction of the act is necessarily involved. As stated by Mr.
Justice Brewer in Shoshone Min. Co. v. Rutter (177 U. S. 505, 44 L.
Ed. 864, 20 S. Ct. 726): ‘A suit to enforce a right which takes its
origin in the laws of the United States is not necessarily one arising
under the constitution or laws of the United States, within the mean-
ing of the jurisdiction clauses.’ A suit, as has been pointed out, may
well be based on a law without involving, in any way, the construction of
the law. This may be, and, so far as the declaration shows, is, such a
suit. If, in the course of the trial in the state court, the defendant
claims any right, privilege, or immunity under this act, and the same
is denied, it may have the adverse decision reviewed by the Supreme
Court of the United States on a writ of error to the highest court of
the state.”

But in order to justify a removal of a cause from a state court to the
circuit court of the United States on the ground that the suit is one arising
under the constitution, laws, or treaties of the United States, it must appear
in plaintiff’s statement of his own claim that the suit is one so arising, it
being insufficient that such facts appear in the answer or petition to re-
move.44 Though a party need not specially plead the act but it is sufficient
in such a case if facts are alleged showing its applicability.*5

Thus where the plaintiff sued under the act as widow, the court held that
as such she did not show a cause of action under the act and a petition to
remove was dismissed,4® but where it is manifest that the federal act is the
only law under which plaintiff’s pleadings entitle him to a recovery, liability
must be considered as based thereon.** And where it is alleged that de-
fendant is a common carrier, engaged in interstate commerce, and that
plaintiff was employed by it in such commerce, and the right to recover is
specially based on the act, it will be deemed to be brought thereunder, not-
withstanding the allegations of negligence were open to question as suffi-
cient to state a liability under the act.48

However, where removal was had on the ground of diversity of citizen-

172 Fed. 478; Hubbard v. Chicago, “As the common law did not per-

etc., R. Co. (C. C.), 176 Fed. 994; Leg-
gett v. Great Northern R. Co. (C. C.),
180 Fed. 314; Miller v. Illinois Cent.
R. Co. (C. C.), 168 Fed. 982. ‘

44. Must appear from plaintiff’s
pleading.— Miller v. Illinois Cent. R.
Co. (C. C.), 168 Fed. 982; Leggett v.
Great Northern R. Co. (C. C.), 180
Fed. 314.

45. See post, “Unnecessary to Plead
Statutes,” § 129.

46. Thompson v. Wabash R.. Co.
(C. C.), 184 Fed. 554.

47. Lemon v. Louisville, etc., R. Co.,
137 Ky. 276, 125 S. W. 701.

mit a recovery for death caused by
negligence, it is manifest that the ac-
tion was not brought under the com-
mon law, and as facts were not
pleaded that would sustain the action
under the statute of Tennessee, there
is no escape from the conclusion that
it was brought under the federal stat-
ute, which allows a recovery in cases
like this.” Lemon v. Louisville, etc.,
R. Co., 137 Ky. 276, 125 S. W. 701.

48. De Atley v. Chesapeake, etc., R.
Co. (D. C.), 201 Fed. 591.
§§ 112-113 FEDERAL EMPLOYERS’ LIABILITY ACT. 246

ship, the case was not subject to remand on it appearing that the parties
were of the same citizenship, if federal jurisdiction was further shown by
the fact that the suit involved a construction of the act, it being a law of
the United States.#9

And should the action be brought in a state court it can only be removed
to the court of the district in which it is brought and not to that in which it
might have been originally brought.5° Other cases, involving questions as to
the joinder of resident and nonresident defendants in order to prevent re-
moval,®! the right to remove where neither party was a resident of the
district,52 and the waiver of objections in such case, are cited below.®3

§ 113. Removal Subsequent to Express Prohibition Embodied in
Act and Judicial Code.—The amendment of 1910 declares: ‘No case
arising under this act and brought in any state court of competent jurisdic-
tion shall be removed to any court of the United States.” Section 28, Judi-
cial Code, effective January 1, 1912, specifies causes removable from state
courts and concludes: “Provided, that no case arising under an act entitled
‘An Act Relating to the Liability of Common Carriers by Railroad to Their
Employees in Certain Cases; approved April twenty-second, nineteen hun-
dred and eight, or any amendment thereto, and brought in any state court of
competent jurisdiction shall be removed to any court of the United States.’’ 54

49. Removal for diversity of citi-
zenship—Failure of proof—Remand.—
Colasurdo v. Central Railroad (C. C.),
180 Fed. 832, affirmed in 192 Fed. 901,
113 C. C. A. 379.

50. District to which removable.—
Hubbard v. Chicago, etc. R. Co. (C.
C.), 176 Fed. 994.

51. Miscellaneous cases involving
right to remove previous to express
prohibition against removal.—Taylor
v. Southern R. Co. (C. C.), 178 Fed.
380.

52. Ex parte Wisner, 203 U. S. 449,
51 L. Ed. 264, 27 S. Ct. 150; Bottoms
v. St. Louis, etc, R. Co. (C. C.), 179
Fed. 318, 319; Clark v. Southern Pac.
Co. (C. C.), 175 Fed. 122, 126.

58. In re Moore, 209 U. S. 490, 52
L. Ed. 904, 28 S. Ct. 585, 706, 14 Am.
& Eng. Ann. Cas. 1164; Clark v.
Southern Pac. Co. (C. C.), 175 Fed.
122, 127; Hubbard v. Chicago, etc., R.
Co. (C. C.), 176 Fed. 994.

54. Section 28 of the Judicial Code
(act of March 3, 1911 36 Stat. at L.
1095, chap. 231, Comp. Stat. 1913, §
1010, provides for the removal of
causes from the state courts to the
federal courts, and provides generally:
(1) That “any suit of a civil nature,
at law or in equity, arising under the
Constitution or laws of the United
States, * * * of which the Dis-
trict Courts of the United States are

given original jurisdiction by this ti-
tle [The Judiciary], which may now
be pending or which may hereafter be
brought, in any state court, may be re-
moved ‘by the defendant or defend-
ants therein to the District, Court of
the United States for the proper dis-
trict;” and (2) “any other suit of a
civil nature, at law or in equity, of
which the District Courts of the
United States are given jurisdiction by
this title [The Judiciary], and which
are now pending, or which may here-
after be brought, in any state court,
may be removed into the District
Court of the United States for the
proper district by the defendant or de-
fendants therein, being nonresidents
of that state;” and (3) “where a suit
is now’ pending, or may hereafter be
brought, in any state court, in which
there is a controversy between a cit-
izen of the state in which the suit is
brought and a citizen of another state,
any defendant, being such citizen of

-another state, may remove such suit

into the District Court of the United
States for the proper district, at any
time before the trial thereof, when it
should be made to appear to said Dis-
trict Court that from prejudice or lo-
cal influence he will not be able to
obtain justice in such state court, or
in any other state court to which the
said defendant may, under the laws of
247 JURISDICTION OF COURTS AND REMOVAL OF CAUSES. § 113

The purpose and effect of the amendment of 1910 is to withdraw the right
of removal to the Federal courts in cases arising under the statute when the
action has been instituted in the state court, and the Federal questions
thereunder arising are reviewable in the Federal Supreme court upon a writ
of error to the State court making final disposition of the cause in its juris-
diction.55

Since the incorporation of this express prohibition against removal into §
6 of the act, however, the question has arisen whether removal may not be
had where there is ground therefor under some other law. But a case
brought under the act is not removable on the ground that the defendant is
a federal corporation.®¢

In a case arising in the federal circuit court for the eastern district of
Texas it was held that the prohibition contained in the act did not prevent a
removal in case there was a diversity of citizenship, the court being of the
opinion that congress, having created a liability by the act of 1908, which did
not exist ‘before, and seeing that the volume of litigation growing out of that
act which would reach the federal courts was destined to be very large,
intended only to say that the act alone should not give a defendant the right
to remove a cause of action brought originally in the state court; and that
there was no intention on the part of congress to destroy the right of re-

moval which a defendant might have by virtue of some other provision of
law.57

But the law is authoritatively settled otherwise by the decision of the
United States Supreme Court5’ in Kansas, etc., R. Co. v. Leslie, 238 U. S.
599, 59 L. Ed. 1478, 35 S. Ct. 844, 845, where the court said:

“The language of both amendment and Judicial Code, we think, clearly
inhibits removal of a cause arising under the act from a state court
upon the sole ground of diversity of citizenship. The same conclusion

the state, have the right, on account of
such prejudice or local influence, to re-
move said cause,” etc.

Then follows in the same section
the following provision: ‘Whenever
any cause shall be removed from any
state court into any District Court of
the United States, and the District
Court shall decide that the cause was
improperly removed, and order the
same to be remanded to the state
court from whence it came, such re-
mand shall be immediately carried into
execution, and no appeal or writ of er-
ror from the decision of the District
Court so remanding such cause shall
be allowed: Provided, that no case
arising under an act entitled ‘An act
relating to the liability of common car-
riers by railroad to their employees in
certain cases,’ approved April twenty-
second, nineteen hundred and eight,

or any amendment thereto, and brought
in any state court of competent juris-
diction shall be removed to any court
of the United States.”

55. Removal subsequent to express
prohibition—General effect of provi-
sion against removal_—Lloyd v. North
Carolina, etc, R. Co., 162 N. C. 485,
78 S. E. 489.

56. Defendant a federal corporation.
—Texas, etc, R. Co. v. Rasmussen
(Tex. Civ. App.), 181 S. W.. 212;
Texas, etc., R. Co. v. Sherer (Tex. Civ.
App.), 183 S. W. 404.

57. Removal for diverse citizenship.
—Van Brimmer v. Texas, etc., R. Co.
(C. C.), 190 Fed. 394.

58. Kansas, etc., R. Co. v. Leslie, 238
U. S. 599, 59 L. Ed. 1478, 35 S. Ct. 844;
Southern R. Co. v. Lloyd, 239 U. S.
496, 36 S. Ct. 210.
§ 113

has been announced frequently by lower federal courts®9 *

FEDERAL EMPLOYERS LIABILITY ACT.

248

KOK

A different view expressed in Van Brimmer v. Texas, etc., R. Co. (C.
C.), 190 Fed. 394, decided October, 1911, cannot be accepted.”

There are also numerous state? and lower federal courts,*! expressly
disagreeing with the Van Brimmer Case,®? and others in which this decision
is not noted reached the same conclusion as the United States Supreme

Court in the Leslie Case.6#

Though recognizing that the act and Judicial Code necessarily precluded
any other conclusion, the reasonableness of the rule was questioned in
Lombardo v. Boston, etc., Railroad (D. C.), 223 Fed. 427, 433, where the

court said:

“Tf this court had the power to amend the proviso to the removal stat-
ute, it would speedily do so, and establish the rule declared in the Van
Brimmer Case, as it is of the opinion that such ought to be the law.
It is a harsh rule to deprive carriers engaged in interstate commerce of
the privilege of removing their cases to the federal courts for trial, when

59. Citing Symonds v. St. Louis, etc.,
R. Co. C.), 192 Fed. 353, 356;
Strauser v. Chicago, etc, R. Co. (D
C.), 193 Fed. 293, 294; Saiek v, Penn-
sylvania R. Co. (C. C.), 193 Fed. 303;
Lee v. Toledo, etc., R. Co. (D. C.), 193
Fed. 685, 686; Ullrich v. New York,
etc., R. Co. (D. C.), 193 Fed. 768, 770;
Hulac v. Chicago, etc., R. Co. (D. C.),
194 Fed. 747, 749; McChesney vw. Illi-
nois Cent. R. Co. (D. C.), 197 Fed.
85, 87; De Atley v. Chesapeake, etc.,
R. Co. (D. C.), 201 Fed. 591, 596; Kelly
v. Chesapeake, etc., R. Co. (D. C.), 201
Fed. 602, 605; Rice v. Boston, etc.,
Railroad (D. C.), 203 Fed. 580, 581;
Teel v. Chesapeake, etc., R. Co., 123
C. C. A. 240, 204 Fed. 918, 47 L. R.
A., N. S., 21; Patton v. Cincinnati, etc.,
Railway (D. C.), 208 Fed. 29, 30; Eng
v. Southern Pac. Co. (D. C.), 210 Fed.
92, 93; Burnett v. Spokane, etc. R.
Co. (D. C.), 210 Fed. 94, 95.

60. Jones v. Kansas, etc., R. Co., 137
La. 178, 68 So. 401, reversed on other
grounds in 36 S. Ct. 513; Pankey v.
Atchison, etc., R. Co., 180 Mo. App.
185, 168 S. W. 274.

61. Lombardo v. Boston, etc. Rail-
road (D. C.), 223 Fed. 427; Peek wv.
Boston, etc., Railroad (D. C.), 223 Fed.
448; Kelly v. Chesapeake, etc., R. Co.
(D. C.), 201 Fed. 602; McChesney v.
Illinois Cent. R. Co. (D. C.), 197 Fed.
85; De Atley v. Chesapeake, etc. R.
Co. (D. C.), 201 Fed. 591; Teel v.
Chesapeake, etc., R. Co. 123 C. C. A.
240, 204 Fed. 918, 47 L. R. A, N.

gp OL

“In Lombardo v. Boston, etc., Rail-
road (D. C.), 223 Fed. 427, this court
hands down its decision herewith that

a case or cause of action arising under
the. Federal Employers’ Liability Act
can not be removed into the federal
court for trial, notwithstanding the
fact that diversity of citizenship and
requisite amount in controversy ex-
ists, because of the proviso in § 28 of
the Judicial Code.” Peek v. Boston,
etc., Railroad (D. C.), 223 Fed. 448,
450.

But in Lee v. Toledo, etc. R. Co.
(D. C.), 193 Fed. 685, but for the pro-
viso in § 28 Judicial Code, the court
was inclined to adopt the ruling of
Van Brimmer v. Texas, etc, R. Co.,
190 Fed. 394.

62. (C. C.), 190 Fed. 394.

63. United States—Saiek v. Pennsyl-
vania R. Co. (C. C.), 193 Fed. 303;
Patton wv. Cincinnati, etc., Railway
(D. C.), 208 Fed. 29; Stafford v. Nor-
folk, ete, R. Co. (D. C.), 202 Fed.
605; Eng v. Southern Pac. Co. (D. C.),
210 Fed. 92.

Arkansas—Kansas, etc. R. Co. vw.
Leslie, 112 Ark. 305, 167 S. W. 83, Ann.
Cas. 1915B, 834, reversed in 35 S. Ct.
844, affirmed on this point; Kansas,
etc., R. Co. v. Cook, 100 Ark. 467, 140
S. W. 579; St. Louis, etc, R. Co. wv.
Conarty, 106 Ark. 421, 155 S. W. 93,
reversed on other grounds in 33 S. Ct.
785.

Kentucky.—De Atley v. Chesapeake,
etc., R. Co., 147 Ky. 315, 144 S. W. 95.

Missourt.—Fish v. Chicago, etc., R.
Co., 263 Mo. 106, 172 S. W. 340. See
also, Moore v. St. Joseph, etc., R. Co.
(Mo.), 186 S. W. 1035.

exas.—Missouri, etc, R. Co. wv.
Bunkley (Tex. Civ. App.), 153 S. W.
937.
249

JURISDICTION OF COURTS AND REMOVAL OF CAUSES.

Sane

sued by an employee, when the necessary diversity of citizenship exists
and the requisite amount is in controversy.”

On the question of removal for prejudice or local influence, congress hav-
ing made the provision, and its having been construed to extend to two
classes of removable cases, it is hardly to be supposed that an exception will
be made of any. So that the fact that the case is one arising under and con-
trolled by the federal act is sufficient to prevent its being removed into a
federal court upon any ground whatsoever. ®* Not only is this conclusion
deducible from the perfectly plain language of the act itself, and the impro-
priety of the courts reading into it exceptions, the discussion of which con-
gress evidently intended to foreclose,®® but a reference to the debates in con-

64. Local prejudice or other grounds.
—United States—Strauser v. Chicago,
etc., R. Co. (D. C.), 193 Fed. 293; Sy-
monds v. St. Louis, etc., R. Co. (C. C.),
192 Fed. 353; Ullrich v. New York,
etc., R. Co. (D. C.), 193 Fed. 768; Mc-
Chesney wv. Illinois Cent. R. Co. (D.
C.), 197 Fed. 85; Saiek v. Pennsylvania
R. Co. (C. C.), 193 Fed. 303; Hulac
v. Chicago, etc, R. Co. (D. C.), 194
Fed. 747; Patton wv. Cincinnati, etc.,
Railway (D. C.), 208 Fed. 29; Lom-
bardo 7. Boston, etc., Railroad (D. C.),
223 Fed. 427; Teel v. Chesapeake, etc., R.
Co., 123 C. C. A. 240, 204 Fed. 918,
47 L. R. A, N.S, 21.

Arkansas.—Kansas, etc, R. Co. vu.
Cook, 100 Ark. 467, 140 S. W. 579.

Georgia—Southern R. Co. v. Puckett
(Ga. App.), 85 S. E. 809.

Texas.—Missouri, etc, Rv Co. vw.
Bunkley (Tex. Civ. App.), 153 S. W.
037,

“A case arising under the Employ-
ers’ Liability Act and brought in a
state court of competent jurisdiction
is not removable to a federal district
court even although the case would be
otherwise removable by reason of di-
versity of citizenship or other inde-
pendent ground of removal.” Patton
v. Cincinnati, etc., Railway (D. C.), 208
Fed. 29, 30.

“This right of removal, if it exists,
must have been conferred by some act
of Congress. This right of removal,
if it exists at all, is conferred by § 28
of the Judicial Code, read and con-
strued as a whole, and from which
must be deduced the policy and inten-
tion of congress. It seems to me that
if congress had intended to leave any
case, arising under the act referred
to, removable to the federal court, it
would have expressed or indicated
such intention in some way, and would
not have used the broad and compre-
hensive language it did at the very end
of the section providing for the re-

moval of causes, and which section,
as stated, is the only authority for
such removal. It is, of course, diffi-
cult and to me impossible to spell out,
surmise, or guess any good reason for
denying to a defendant common car-
rier engaged in interstate commerce
the right to have a case arising under
the Federal Employers’ Liabilty Act,
when diversity of citizenship and req-
uisite amount in controversy, or local
prejudice of the extent named, exist,
tried in the federal court; but congress
has so decreed in plain language, and
I discover no ground or theory on
which the courts can make over the
statute referred to. To broadly ex-
cept that class of cases from the op-
eration of the removal statute was
clearly within the power and discre-
tion of congress. It seems to me that,
if words not found in the proviso of
the removal statute are to be written
into and read as a part of it, limiting
and restricting the meaning of the
words now found therein, it should be
done by congress, and not by judicial
legislation.” Lombardo v._ Boston,
etc., Railroad (D. C.), 223 Fed. 427,
430.

65. Same—Language of act conclu-
sive—Symonds v. St. Louis, etc. R.
Co. (C. C.), 192 Fed. 353, 354; Ullrich
v. New York, etc., R. Co. (D. C.), 193
Fed. 768, 770; Strauser v. Chicago, etc.,
R. Co. (D. C.), 193 Fed. 293; Kansas,
etc., R. Co. v. Cook, 100 Ark. 467, 140

S. W. 579.

“We agree with Judge Cochran,
who said in De Atley v. Chesapeake,
etc, R. Co. (D. C.), 201 Fed.

591, where the removal had been ob-
tained on the ground of diversity of
citizenship: ‘Congress said that “no
case arising under this act” should be
removed, and it should be taken to
have meant what it said’” Teel v.
Chesapeake, etc., R. Co., 123 C. C. A.
240, 204 Fed. 918, 47 L. R. A., N. S., 21.
§ 113 FEDERAL EMPLOYERS LIABILITY ACT. 250

gress, upon the passage of the amended section, is ‘sufficient, as pointed out
in several cases, to dispel all doubt, and to show that it was the intention of
congress to give the plaintiff his choice of a forum in actions arising under
the act, and, such choice having been once made, to prevent a removal there-
after upon any ground. This is made perfectly plain by the following brief
history of its enactment:

“The bill amending § 6 of the Employers’ Liability Act, approved April
22, 1908, was considered in the Senate on March 30, 1910. As the bill left
the House and reached the Senate, the clause in question read as follows:

“The jurisdiction of the courts of the United States under this act shall
be concurrent with that of the courts of the several states.’ Congressional
Rec., Second Sess. 61st Congress, vol. 45, part IV, p. 3994.

“The question of removal was fully discussed. In the course of the dis-
cussion the following amendment was presented:

“Provided, that every common carrier by railroad subject to the provi-
sions of this act shall be deemed a citizen of every state into or through
which its line of railroad shall be constructed or extend.’ Id., p. 3995.

“This was criticised on the ground that it would not fully effect the pur-
pose intended; that is, the denial of the right of removal. It was shown
that this amendment would affect only the right of removal on the ground
of diverse citizenship, and would not affect the right of removal on the
ground that a federal question was involved. The discussion was resumed
in the Senate the next day. Senator Paynter, of Kentucky, said:

““T offer an amendment which will give to the plaintiff, the right to select
the forum in which his case shall be tried. He can select the federal or the
state court, as he may prefer, to try his case arising under the act in ques-
tion.’

“The amendment offered was as follows:

““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.’

“Upon the reading of the proposed amendment, Mr. Bailey, of Texas,
said:

“*That, Mr. President, is entirely agreeable to me, because it takes these
cases out of the operation of the removal act.’ Id. 4051.

“This amendment was adopted and incorporated in the bill. The House
concurred on April 2, 1910, on which date this amendment was discussed.
It was stated by Mr. Mann, of Illinois, that the effect of the amendment
was that suits brought under the act should not be subject to removal, ‘no.
matter what the amount or citizenship.’ Mr. Parker, who had charge of
the bill, added:

““No matter what the amount or citizenship. The idea was that a writ of
error would issue only upon a federal question at the termination of the
suit.’ Id. 4158.
251 JURISDICTION OF COURTS AND REMOVAL OF CAUSES. §§ 113-115

“These discussions disclose fully the intention of congress. The language
plainly expresses that intention, and excludes any other.’’6é

If further authority in favor of this view were needed, it is found in the
fact that the prohibition in question has been re-enacted by congress as a
proviso to § 28 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat.
1087) ; for it is quite plain that the Judicial Code, in its general purpose,
seeks further to restrict the jurisdiction of the federal courts, and that a
special restriction of this kind, placed as it is at the close of the section
granting the general right of removal, shows that congress intended that no
case arising under the act referred to therein should be removed from the
state court upon any ground. In other words, it is obvious that, in its re-
enactment as a part of § 28 of the Judicial Code, congress had in mind all
of the various grounds of removal, including diversity of citizenship and
local influence and prejudice.®7

That the state court in which the action is to be tried does not require the
unanimous verdict of 12 jurors, does not render such court incompetent so
as to make a case removable.®8

§ 114. Retroactive Operation of Provision.—In Teel v. Chesaperke,
etc., R. Co.,®9 in which the action arose before the amendment of 1910, it
was contended that this provision would not apply as to do so would make
it retroactive, that the intent was simply to deny removal under the act itself
and not to disturb such right when traceable to some other provision of the
law. But the court held that it was not concerned with the right of action,
the liability, created by the Act, but the remedy given to enforce it, and that
as neither the plaintiff’s right of action nor the railroad company’s defense
was disturbed; the change made simply affected the remedy. Thus dis-
tinguishing the case from Winfree v. Northern Pac. R. Co.,7° in which the
retroactive operation of the act was denied.7! i

§ 115. Constitutionality of Prohibition against Removal.—The
contention made in several cases that this prohibition against removal is un-
constitutional has been held to be without merit. The Supreme Court of

66. Same—Construction by reference 69. Retroactive operation.—123 C.

to debates in congress.—Symonds v.
St. Louis, etc., R. Co. (C. C.), 192 Fed.
353, 355. See, also, Ullrich vu. New
York, etc, R.'Co. (D. C.), 193 Fed.
768, 770.

67. Construction by reference to its
re-enactment into Judicial Code—
Strauser v. Chicago, etc, R. Co. (D.
C.), 193 Fed. 293, 294; Patton v. Cin-
cinnati, etc., Railway (D. C.), 208 Fed.
29; Lee v. Toledo, etc., R. Co. (D. C.),
193 Fed. 685, 686.

68. Incompetency of state court.—
Gibson v. Bellingham, etc., R. Co, (D.
C.), 218 Fed. 488. See, ante, “Juris-
diction of State Courts,” § 108.

C. A. 240, 204 Fed. 918, 47 L. R. A,
N. S&., 21.

70. 227 U. S. 296, 301, 57 L. Ed. 518,
33 S. Ct. 273.

71. Same—Contra—But see Newell
v. Baltimore, etc., R. Co. (D. C.), 181
Fed. 698, which holds that the act
is not retroactive so as to confer ju-
risdiction in a district where the ac-
tion was not otherwise maintainable;
and Ft. Smith, etc., R. Co. v. Blevins,
35 Okla. 378, 130 Pac. 525, which ac-
cepts this last case as authority for
the contrary of the proposition as
stated in the text.
§§ 115-116 FEDERAL EMPLOYERS’ LIABILITY ACT. 252
the United States has repeatedly held that the right of removal to the federal
court is statutory, and that it does not exist in the absence of an act of con-
gress conferring that right; and the courts have so held with reference to
the prohibition embodied in this section.72 Congress has the right to provide
for the removal of one class of cases from the state to the federal courts for
trial to the exclusion of other classes, even though suits arising under such
excluded classes might be surrounded by local prejudices and influences of
such character and extent as to forbid the defendant a fair trial in the state
court,73 because courts inferior to the supreme court are created by acts of
congress, and their jurisdiction is dependent upon the same source. Con-
gress may confer or withhold from them power to hear and determine any
of the cases to which the judicial power of the United States extends; and
it therefore follows that it may prescribe when the right of removal from a
state court shall exist.74 In Teel v. Chesapeake, etc., R. Co., 123 C. C. A.
240, 204 Fed. 918, 47 L. R. A., N. S., 21, the court said:

“The plenary character of this power manifestly includes discretion in
congress to classify remedies, as well as the rights thereby intended to
be enforced. The power of congress to create the rights of action given
by the Employers’ Liability Act is settled; and since such rights of ac-
tion are limited to a particular class, there is no perceivable reason why
the remedies making them available may not be likewise limited. The
insistence, then, that to construe the amendment so as to include and
prohibit removal on the ground of diversity of citizenship in this class.
of cases, while permitting removal on such ground in other cases, would
be to deny due process of law and the equal protection of the laws,
cannot be sanctioned.”

And again in McChesney v. Illinois Cent. R. Co. (D. C.), 197 Fed. 85, 88,
the court said:

“Tn its legislative discretion congress may exert this power to the extent
of making one class of cases femovable while denying that right to an-
other class. It has uniformly and without question exercised this right
and discretion ever since the original judiciary act of 1789. * * *
We know of no place where a more general discrimination has been
made between classes of cases than in respect to the amount involved,
though otherwise the cases are precisely alike. No one, we think, has
ever seriously questioned the right to make this character of classifica-
tion, and the classification now called in question rests upon no different
principle.”

§ 116. When Cause Shown under Act within Prohibition.—As
cases not brought under the act may be removed if the other requisites are

72. Constitutionality of prohibition
against removal.Symonds v. St.
Louis, etc., R. Co. (C. C.), 192 Fed.
353, 354; Teel v. Chesapeake, etc, R.
Co., 123 C. C. A. 240, 204 Fed. 918, 47
L. R. A. N. S., 21; Lee v. Toledo, etc.,
R. Co. (D. C.), 193 Fed. 685; Gibson
v. Bellingham, etc., R. Co. (D. C.), 213
Fed. 488; Kelly v. Chesapeake, etc., R.

Co. (D. C.), 201 Fed. 602; Lombardo
v. Boston, etc., Railroad (D. C.), 223
Fed. 427; Kansas, etc., R. Co. v. Cook,
100 Ark. 467, 140 S. W. 579.

73. As unjust discrimination.—Lom-
bardo v. Boston, etc., Railroad (D. C.),
223 Fed. 427, 430.

74, Gibson v. Bellingham, etc. R.
Co. (D. C.), 213 Fed. 488.
253 JURISDICTION OF COURTS AND REMOVAL OF CAUSES. § 116

present, it is material to determine when a case is brought under the act.
Thus an action is removable on the ground of diverse citizenship where the
petition for removal alleges the administrator to be a citizen of one state
and the defendant railroad though operating its line in the same state was
not incorporated therein, but was a corporation of another state, and the
petition setting forth the cause of action nowhere alleged that deceased left
surviving him a widow, child, parent, or next of kin, for whose benefit the
right of action given to the decedent survives, nor for whose benefit an orig-
inal right of action was given for the pecuniary loss either may have sus-
tained because of his untimely death, and for whose benefit alone the plain-
tiff is entitled to recover in either event. No facts were therefore alleged
from which it could rightly be determined that a right of action accrued to,
or existed in favor of, the plaintiff as administratrix of the deceased em-
ployee under the federal act, though, there was an allegation “that by reason
of the foregoing a cause of action has accrued to plaintiff against the defend-
ant under and by virtue of” the Employers’ Liability Act. But this is a con-
clusion only, and does not enlarge the facts previously alleged, and from
which the conclusion is drawn. The court takes notice of the acts of con-
gress, and it is to the facts alleged in the petition that it must look to deter-
mine whether or not a cause of action is alleged thereunder; and, if they do
not show a cause of action arising under some act of congress, an averment
that they do so arise avails nothing.7® But in a suit against a carrier by one
of its employees seeking to recover damages for an injury caused by the
negligence of one of its officers, agents or employees, if expressly based on
the act, would seem to arise thereunder, even though the negligence charged
was one not covered by the act, or the facts alleged did not make out that
there had been negligence as charged.7®

Upon a motion to remand a case to the state court where it appeared that
the complaint stated a cause of action under, not only the federal act, but
also under the New York Labor Law, and lastly under the common law;
and upon a contention that the defendant was entitled to remove the causes
of action stated under the state statute and the common law, it was held
that it was enough to avoid the jurisdiction of the federal court for all pur-
poses that the plaintiff had alleged that he was engaged in interstate com-
merce, and Judge Hand, in upholding the jurisdiction of the state court as
to all three causes of action shown, in Ullrich v. New York, etc., R. Co.
(D. C.), 193 Fed. 768, 771, said:

“Analogy exists for the interpretation in those cases in which a federal
court, having one ground of jurisdiction, can dispose of the whole case,
though it involves other matters (Railroad Co. v. Mississippi, 102 U. S.
135, 26 L. Ed. 96), as, indeed, in those in which the jurisdiction re-

75. Case shown within prohibition 76. Failure to allege negligence cov-
—Failure to allege beneficiaries named ered by act.—De Atley v. Chesapeake,
by statute—Thomas v. Chicago, etc, etc, R. Co. (D. C.), 201 Fed. 591.

R. Co. (D. C.), 202 Fed. 766.
§§ 116-117 FEDERAL EMPLOYERS’ LIABILITY ACT. 254

mains, though the allegations of jurisdiction prove unsupported (City
R. Co. v. Citizens’ St. R. Co., 166 U. S. 557, 41 L. Ed. 1114, 17 S. Ct.
653). So here, though the defendant could remove, were it not for the
allegations which bring the case within the Employers’ Liability Act, I
think it could not have been the intention of congress to sever three
such knitted causes of action, and bring two into this court, while the
other stayed where it was. The ‘case’ arose, I think, for all purposes
under the act.” 77
On the other hand, where plaintiff brings his action by a petition contain-
ing two counts, one under the federal act and the other under the common
law and state statutes, but the subject of each count is the same injury, it
is held that as the prohibition of removal is limited to cases which purport
by the plaintiff’s petition to arise under the act; and when to a cause of
action under the act, there is joined one that does not purport to arise there-
under the prohibition does not apply.78 The cases of Ullrich v. New York,
etc., R. Co.7® and Rice v. Boston, etc., Railroad 8° are distinguished on the
ground that the petitions in those cases contained only a single count, and the
plaintiff’s good faith in stating the cause of action was presumed, but in a
statement in two counts the plaintiff had presented two distinct causes of ac-
tion on either of which he might elect to proceed and only one was within the
prohibition.84

§ 117. Fraudulent Allegations Designed to Prevent Removal.—
Now that it may be considered settled, that no case under the act is remov-
able, a plaintiff would have nothing to accomplish by joining individual de-
fendants, residents of his state, in order to prevent removal. In Kelly v.
Chesapeake, etc., R. Co. 8% to insure against a removal, the plaintiff joined
a co-employee as defendant, but instead of having the desired effect, as
expressed by the court, “so doing has brought about the only complications
in the case.” But aside from this question, an action under the statute can-
not be maintained against a railroad and co-employee joined as defendants,
for the employee is not a common carrier by railroad engaged in interstate
commerce and hence is not liable.83

Where the defendant would otherwise be entitled to remove, he may show
that the plaintiff has made false and fraudulent allegations of jurisdictional
facts with intent to prevent a removal, not by making fraudulent joinder of
defendants but fraudulently basing his action on the federal act for the pur-
pose of defeating a removal.84 As just seen in the statement of a case within

77. Setting out case under state, com-
mon, and federal law in ‘single count.
—See, also, Rice v. Boston, etc., Rail-
road (D. C.), 203 Fed. 580.

78. Same—Effect of setting out ac-
tions in separate counts.—Strother v.
Union Pac. R. Co. (D. C.), 220 Fed.
731; Flas v. Illinois Cent. R. Co. (D.
C.), 229 Fed. 319. ‘

79. (D. C.), 193 Fed. 768.

80. (D. C.), 203 Fed. 580.

81. Flas v. Illinois Cent. R. Co. (D.
C.), 229 Fed. 319.

82. Fraudulent allegations designed
to prevent removal—Act itself best bar
to removal.—(D. C.), 201 Fed. 602.

83. Co-employee as defendants can
not be joined.—Kelly v. Chesapeake,
etc, R. Co. (D. C.), 201 Fed. 602.

84. Fraudulently basing action un-
der act.—Lloyd v. North Carolina, etc.,
R. Co., 162 N. C. 485, 78 S. E. 489.
255

JURISDICTION OF COURTS AND REMOVAL OF CAUSES.

§§ 117-118

the act the plaintiff may bring a cause of action based on the common-law,
a state statute and the federal act and the same being deemed a single cause
of action, a plaintiff may by so framing his pleadings bring an action which
would eventually be found to be governed by the state or common law alone,
and which the defendant would have had the right to remove. So in order
to protect the defendant’s rights, if the plaintiff should fail to show a cause
*of action under the act the case should be dismissed. And if the plaintiff is
held to proof bringing his case within the act, as a result removal will be
defeated in the excepted case only and properly.

§ 118. Jurisdiction to Determine Removability.—While ordinarily
the state courts have no jurisdiction to pass upon issues of fact raised by the
filing of a sufficient petition and bond for removal to the federal court for
diversity of citizenship, it is necessary for this result, where a fraudulent
joinder of a resident defendant is alleged, for the petitioner to set forth a
full and direct statement of the facts and circumstances of the transaction,
sufficient, if true, to demonstrate ‘that the adverse party is making a fraud-
ulent attempt to impose upon the court, and so deprive the defendant of his
right of removal.” 8° In Southern R. Co. v. Lloyd, 239 U. S. 496, 36 S. Ct.

210, 212, the court said:

“In no case can the right of removal be established by a petition to re-
move which amounts simply to a traverse of the facts alleged in the
plaintiff’s petition, and in that way undertaking to try the merits of a

cause of action, good upon its face.
rell, 232 U.S. 146, 58 L. Ed. 544, 34 S. Ct. 278.

Chesapeake, etc., R. Co. v. Cock-
It is only in cases

wherein the facts alleged in the petition for removal are sufficient to
fairly raise the issue of fraud that the state court is required to sur-

render its jurisdiction.”

So that a state court, having jurisdiction of the case, is not bound to sur-
render its jurisdiction until a case has been made which, on its face, shows
a right to the transfer of the case to the federal court, and the state court
determines for itself whether, on the face of the record, a removal has been
affected. If the state court should decide erroneously against the removal,
and proceed with the cause, its ruling on that question can be reviewed, after
final judgment, by the United States Supreme Court.87

And a right of removal cannot be established by a petition to remove which
simply alleged a fraudulent joinder of a citizen of the same state and denied
the fact that the injury happened in interstate commerce.8® ‘Thus where the
plaintiff brings his action in the state court to recover damages, for a personal

85. Joining different causes of action
—Holding plaintiff to proof of case
under act.—Rice v. Boston, etc., Rail-
road (D, C.), 203 Fed. 580.

86. Allegation and proof of fraudulent
facts—Lloyd v. North Carolina, etc.,
R. Co., 162 N. C. 485, 78 S. E. 489.
See, also, Lloyd v. Southern R. Co.,

166 N. C. 24, 81 S. E. 1003; S. C., 239
U. S. 496, 36 S. Ct. 210.

87. Chesapeake, etc., R. Co. v. Shaw
(Ky. App.), 182 S. W. 653, 657.

88. Southern R. Co. uv. Lloyd, 239 U.
S. 496, 36 S. Ct. 210, citing Chesayeake,
etc., R. Co. vw. Cockrell, 232 U. S. 146,
58 L. Ed. 544, 34 S. Ct. 278.
§ 118 FEDERAL EMPLOYERS’ LIABILITY ACT. 256

injury, against an interstate railway company, under the federal act, and
joins therein a local company, its lessor, wherein a petition and bond for
removal of the cause to the federal court, for diversity of citizenship, is filed,
upon the ground that the latter road was fraudulently joined for the purpose
of retaining the cause in the state court, and it appeared from the pleadings
and admissions, that the plaintiff was a locomotive engineer of the petitioner ;
that the injury occurred at a repair shop of the petitioner, off of the leased
premises, by reason of a defect in the machinery of the engine, not properly
repaired, and while the plaintiff was preparing to test the engine, upon a
trial trip within the state, for the further service of the company; that he
had theretofore been operating this locomotive for the petitioner over a
portion of the leased road, used as a part of the petitioner’s trunk line, and
on to a point in another state, in moving interstate trains. Held, that upon
these allegations, construing the federal acts in connection with the act of
congress entitled ‘Safety Appliance Act,” the charge of fraud is not to be
necessarily inferred, so as to give the petitioner the right of removal upon
the filing of the petition and bond.89

To the contention that if the defendant moves for a removal of a cause
on the ground of diverse citizenship and that the allegation that the parties
were engaged in interstate commerce is made fraudulently to prevent a re-

moval, the state court is without jurisdiction to determine this question but :

the cause should be removed and the question of its removability determined
by the federal courts; in Chesapeake, etc., R. Co. v. Shaw (Ky. App.), 182
S. W. 653, 656, the court said:

“Tf this be the correct practice, every case may be removed to the federal
court, notwithstanding the provision of § 28, supra, and the federal court
alone would have the right to determine that question. The effect of
such a rule would be to give the federal courts exclusive jurisdiction of
the merits in every case of this character, although such jurisdiction is
expressly made concurrent with that of the state courts, and the de-
fendant, by the express terms of the statute, is prohibited from remov-
ing the case into the federal court.”

Where the lower court erroneously orders the removal of a case to the
federal court which order is reversed on appeal to the state court, the de-
fendant on a retrial cannot question the jurisdiction of the lower court.
The filing of a transcript in the federal court did not prevent the state court
from proceeding to final judgment on appeal by which the order of transfer
was reversed and the court directed to retain the case. The right to ques-
tion the judgment being by writ of error and not collateral attack.%

Unless the pleadings on their face are insufficient to show a case within
the act, the question of whether or not the plaintiff may be ultimately en-
titled to a recovery thereunder, will not be determined on a motion to re-

89. Lloyd v. North Carolina, etc., R. 90. Jurisdiction after order of re-
Co., 162 N. C. 485, 78 S. E. 489. moval.—Lloyd v. Southern R. Co., 166
N. C. 24, 81 S. E. 1003.
257 JURISDICTION OF COURTS AND REMOVAL OF CAUSES. §§ 118-120

mand.°! Therefore where a widow brought an action as administratrix,
especially relying on the act, the sufficiency of the pleadings to show that her
husband was engaged in interstate commerce would not be determined on
motion to remand; as having in good faith gone into a state court, unequivo-
cally declaring that she sought a recovery under the act, and, having the right
to select the tribunal to which she would submit her claim, she should have
this question, as well as all others, decided by the court whose jurisdiction
she has invoked.9?

§ 119. Mandamus to Compel Remand.—The accustomed office of
a writ of mandamus, when directed to a judicial officer, is to compel an
exercise of existing jurisdiction, but not to control his decision. It does
not lie to compel a reversal of a decision, either interlocutory or final, made
in the exercise of a lawful jurisdiction, especially where in regular course
the decision may be reviewed upon a writ of error or an appeal.®3

So the refusal of a district court to remand a case where the question
presented by the motion was whether § 6 of the act, and § 28 of the Judicial
Code were intended to forbid a removal in every case falling within the act,
regardless of the presence of some independent ground of removal, or only
to declare that the fact that a case arises under that act shall not be a ground
of removal, cannot be reviewed by writ of mandamus, so as to pronounce
that ruling erroneous, and direct the respondent to retract it and remand
the case. Whether the ruling was right or wrong, it was a judicial act,
done in the exercise of a jurisdiction conferred by law, and, even if errone-
ous, was not void or open to collateral attack, but only subject to correc-
tion in an appropriate appellate proceeding. Like any other ruling in the
progress of the case, it will be regularly subject,to appellate review after
final judgment, and the authorized mode of obtaining such a review, the
action being at law, is by a writ of error.%4

§ 120. Waiver of Right to Object to Removal.—The failure of a
defendant to except to the action of the court in refusing a removal, any
error therein will not be reviewed on appeal.95

The right of removal is purely statutory. It exists only in such cases as
congress has seen proper to make provision therefor. Without some federal
statute, no action brought in a state court can be removed to a federal
court.%® So when, congress, in adopting the Judicial Code, incorporated a

91. Right to recover under act not
determinable on motion to remand.—
Stafford v. Norfolk, etc, R. Co. (D.
C.), 202 Fed. 605; Smith v. Camas
Prarie R. Co. (D. C.), 216 Fed. 799.

92. Smith v. Camas Prarie R. Co. (D.
C.), 216 Fed. 799, 801.

98. Mandamus to compel remand.—
Ex parte Roe, 234 U. S. 70, 58 L. Ed.
1217, 34 S. Ct. 722.

Fed Act—17

94. Ex parte Roe, 234 U. S. 70, 58
L. Ed. 1217, 34 S. Ct. 722.

95. Review on appeal—Failure to
object—St. Louis, etc., R. Co. v. Mc-
Whirter, 145 Ky. 427, 140 S. W. 672,
679, reversed on other grounds in 33
S. Ct. 858.

96. Deprivation of right to remove
as deprivation of jurisdiction —Bur-
nett v. Spokane, etc., R. Co. (D. C.),
210 Fed. 94.
§ 120 FEDERAL EMPLOYERS’ LIABILITY ACT. 258

provision that no case arising under the Federal Employers’ Liability Act in
a state court of competent jurisdiction should be removed to'a federal court,
it took from the effect of the removal act, actions under that act. This
provision limits the jurisdictidn of the federal courts as a class, and entirely
withholds from them jurisdiction, through removal proceedings, of cases
arising under the Employers’ Liability Act which have been previously com-
menced in state courts of competent jurisdiction. That this is a limitation
of jurisdiction and not a privilege or exemption in favor of the plaintiff is
emphasized by the contrast between the language of the first sentence in
§ 6 of the act, as amended by the act of 1910, in reference to the particular
district in which a suit ‘‘may” be brought under that act, and that in the
second sentence of the same section, which provides that “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.” It is also the neces-
sary result of the proviso, framed in substantially the same language, con-
tained in § 28 of the Judicial Code.°”

So if the federal courts are thus deprived of jurisdiction of the subject-
matter this is not merely a personal privilege or exemption in favor of the
plaintiff in respect to the jurisdiction of the particular district court to which
the case has been removed, which he may waive after the removal by ap-
pearance or consent,®® and where after the removal of a case to the federal
court, the defendants answered and plaintiff filed a reply, by so doing
he did not confer jurisdiction on the court, or preclude a subsequent motion
to remand;°® because it would clearly be the duty of the court, even in
the absence of a motion to remand, upon its own motion, when such want of
jurisdiction is brought to its attention, to remand the case to the state court,
under the provisions of §°37 of the Judicial Code.?

Where the defendant relied upon the rule that, “the question.of remova-
bility depends upon the state of the pleadings and the record at the time
of the application for removal,” 2 the fact that the plaintiff's declaration had
not been filed in the State court at the time the defendant’s petition for
removal was filed, and there was nothing in fhe record at that time to show
that the case was one arising under the Employers’ Liability Act; nor the

97. Patton v. Cincinnati, etc., Rail-

99. Effect of filing pleadings.—Bur-
way (D. C.), 208 Fed. 29.. See, also,

nett v. Spokane, etc., R. Co. (D. C.),

Burnett v. Spokane, etc. R. Co. (D.
C.); 210 Fed. 94.

98. Not to be waived by consert.—
Patton v. Cincinnati, etc., Railway (D.
C.), 208 Fed. 29.

In Bankson v. Illinois Cent. R. Co.
(D. C.), 196 Fed. 171, 174, the right
of removal was not challenged by the
plaintiff.

Contra.—Stephens v. Chicago, etc.,
R. Co. (D. C.), 206° Fed. 854; Lee wv.
Toledo, etc. R. Co. (D. C.), 193 Fed.
685.

210 Fed. 94.

1. Remand ex proprio motu.—Pat-
ton v. Cincinnati, etc. Railway (D.
C.), 208 Fed. 29. ;

2. Wher record on removal in no
way shows case under act.—Alabama,
etc., R. Co. v. Thompson, 200 U. S.
206, 216, 50 L. Ed. 441, 26 S. Ct. 161,
4 Am. & Eng. Ann. Cas. 1147, cited in
Patton v. Cincinnati, etc., Railway (D.
C.), 208 Fed. 29.
259 JURISDICTION OF COURTS AND REMOVAL OF CAUSES. § 120

fact that the defendant’s petition for removal was based solely upon di-
versity of citizenship, and the amount in controversy, and did not disclose
that the suit was one arising under the Employers’ Liability Act, which
fact first appeared in the record when the plaintiff subsequently filed her
declaration in the federal court, does not alter the rule forbidding removal,
and permit the federal court to retain jurisdiction. In Patton v. Cincinnati,
etc., Railway (D. C.), 208 Fed. 29, 32, the court said:

“It is to be observed, however, that the rule relied on by the defendant
was stated in a case in which the plaintiff's declaration had been filed
before the petition for removal had been filed, and in connection with
the well settled doctrine that the case made by the plaintiff in his plead-
‘ings was to determine the alleged separable character of the controversy
for the purpose of deciding the right of removal; and the rule relied on
is in no wise authority for the contention that where the plaintiff had
not filed any pleading at the time the petition for removal was filed
which showed the cause of action, the defendant could obtain a right
of removal to which it was otherwise not entitled, by filing a petition
for removal which likewise did not state the cause of action, and when,
if the nature of the cause of action had been stated in the petition for
removal it would have affirmatively appeared that the suit was one
which the defendant was not entitled to remove to the Federal court.
The general rule relied on by the defendant that the question of re-
movability depends upon the state of the pleadings and the record at
the time of the application for removal, would, in fact, seem, when ap-
plied to the instant case, to lead to the conclusion that, as matter of law,
the case was not shown to be a removable one at the time the petition
for removal was filed. Construing the acts of congress as excepting
from all otherwise removable cases those arising under the Employers’
Liability Act and pending in a state court, it may well be that where a
railway company seeks to remove tc a Federal court an action for dam-
ages pending in a state court, and the exact nature of the cause of ac-
tion has not yet appeared from any pleadings filed by the plaintiff, it is
incumbent upon the defendant, in order to show a removable case upon
the face of its petition for removal, to specifically aver that the case is
not one excepted from removal by the proviso in § 28 of the Judicial
Code, that is, that it is not a suit arising under the Employers’ Liability
Act.”

In any case, however, where the jurisdiction is doubtful, the court should
resolve the doubt against its own jurisdiction.®

Two cases that went to the United States Supreme Court cannot be said
to be contrary to the principles just stated. In Garrett v. Louisville, etc., R.
Co.,# the decision was that the removal of a case to the wrong district could
not be questioned on appeal, the right to a removal at all under the amend-

3. Jurisdiction doubtful—Court de-
cides against—Burnett v. Spokane,
etc, R. Co. (D. C.), 210 Fed. 94, 95.
See to the contrary, Strother v. Union
Pac. R. Co. (D. C.), 220 Fed. 731,
based on the Boatmen’s Bank v. Fritz-
len, 68 C. C. A. 288, 135 Fed. 650,

where it is held that to remand the
case would leave the petitioner with-
out a remedy.

4. United States Supreme Court rul-
ings distinguished—117 C. C. A. 109,
197 Fed. 715.
§ 120 FEDERAL EMPLOYERS LIABILITY ACT. 260

ment of 1910 not being raised; but in affirming the case 5 the opinion only
treats other grounds, adding that “the courts below committed no error of
which just complaint can be made here.” In Arizona, etc., R. Co. v. Clark,®
the action was never in the state courts ‘but was pending in the territorial
courts of Arizona at the time of its admission to statehood, and was trans-
ferred to the federal court. The enabling act required that actions of which
the state and federal courts had concurrent jurisdiction should be trans-
ferred to the state courts, but the plaintiff by permitting the cause to proceed
in the federal court and answering thereupon the merits without objection
was held to have waived any formal defects in such transfer proceedings.

ri
7

5. Garrett v. Louisville, etc., R. Co., 6. 235 U. S. 669, 59 L. Ed. 415, 35
oe U. S. 308, 59 L. Ed. 242, 35 S. S. Ct. 210.
t. 32.
CHAPTER XVII.

VENUE.

1. In General, § 121.
2. Waiver of Objections, § 122.

§ 121. In General.—An action under the act is not local but transitory,?
so must apply to the defendant wherever found in the United States, since
it proceeds from supreme power, and is not by its terms limited to any spe-
cial locality.?

Section 6 of the act of April 22, 1908, as amended April 5, 1910, provides:
“Under this act an action may be brought in a circuit court (now district
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.” As to cases arising
under the act and involving questions of venue previous to this amendment,
see below.? This provision has no retroactive operation.*

§ 122. Waiver of Objections.—Where plaintiff's petition described
generally the right of action alleged, but did not specify whether reliance
was placed on a state statute, or the federal act, but the defendant pleaded
facts which would make the federal act applicable, and at the close of the
evidence the defendant requested a directed verdict, but the court submitted
the case to the jury on the theory that the federal act governed, any objec-
tion that the defendant may have had as to the district in which the suit was
brought, if under the federal act it was maintainable elsewhere, is deemed
to be waived.* But where the fact that the action is based upon the federal
act is made first to appear by an amendment of the petition, an objection of
the defendant made at the first convenient time after amendment to the
jurisdiction of the court for not being brought in the district of defendant’s
residence, sufficiently raises the question of jurisdiction.

1. Action is  transitory.— Anderson
v. Louisville, etc., R. Co., 127 'C. C. A.
277, 210 Fed. 689; Kansas, etc., R. Co.
v. McAdow, 240 U. S. 51, 36 S. Ct. 252.

2. Howard v. Nashville, etc., R. Co.
(Tenn.), 179 S. W. 380, 381.

8. Venue previous to Amendment of
April 5, 1910— Smith v. Detroit, etc.,
R. Co. (C. C.), 175 Fed. 506; Clark v.
Southern Pac. Co. (C. C.), 175 Fed.
122; Whittaker v. Illinois Cent. R. Co.
(C. C.), 176 Fed. 130; Hubbard wv. Chi-
cago, etc., R. Co. (C. C.), 176 Fed. 994.

Venue of suit by foreign personal
representative.—As to the venue of a

suit brought by a foreign personal
representative under the Act of June
11, 1906, and the right of such repre-

sentative to sue, see ante, “Suit by
ae hla Personal Representative,”
86.

4. Amendment of 1910 not re-
troactive—Newell v. Baltimore, etc.,
R. Co. (C. C.), 181 Fed. 698.

5. Waiver of objection to venue.—
Erie R. Co. v. Kennedy, 112 C. C. A.
76, 191 Fed. 332.

6. Newell v. Baltimore, etc., R. Co.
(C. C.), 181 Fed. 698.

261
CHAPTER XVIII.

PROCEDURE.

1. State Rules as Governing, § 123.
2. Substantive Rights Not to Be Defeated, § 124.

§ 123. State Rules as Governing.—As congress cannot enlarge the
jurisdiction of a state court, nor has it power to prescribe rules of procedure
or methods of trial to be followed therein,! and as the act does not deal with
the question of practice or procedure, nor undertake to prescribe the prac-
tice to be followed, but merely fixes the rights of the parties, ° the state
courts in the trial of actions under the act follow their own methods of
procedure; * which should conform as near as may be to that of the state
law applicable, including the “character of action, the order and manner of
trial, the rules of pleading and evidence.” 4 In Central Vermont R. Co. v.
White, 238 U. S. 507, 59 L. Ed. 1433, 35 S. Ct. 865, the court said:

“There can, of course, be no doubt of the general principle that matters

respecting the remedy—such as the form of the action, sufficiency of
the pleadings, rules of evidence, and the statute of limitations—depend

upon the law of the place where the suit is brought.. * *

* But mat-

ters of substance and procedure must not be confounded because they

happen to have the same name.”

Thus the admission of testimony;® the sufficiency of the pleadings; ®
amendments of pleadings,’ whether permitted on the ground of waiver, or

1. Gibson v. Bellingham, etc., R. Co.
(D. C.), 213 Fed. 488, 491, citing Claf-
lin v. Houseman, 93 U. S. 130, 141, 23
L. Ed. 833.

2. Louisville, etc., R. Co. v. Hollo-
way, 163 Ky. 125, 173 S. W. 343.

8. United States——Chesapeake, etc.,
R. Co. wv. DeAtley (U. S.), 36 S. Ct.
564; Central Vermont R. Co. v. White,
238 U. S. 507, 59 L. Ed. 1433, 35 S. Ct.
865.

Kentucky.—Louisville, etc., R. Co. v.
Holloway, 163 Ky. 125, 173 S. W. 343;
Louisville, etc., R. Co. v. Johnson, 161
Ky. 824, 171 S. W. 847.

Missouri—McAdow v. Kansas, etc.,
R. Co. (Mo. App.), 164 S. W. 188, af-
firmed in 36 S. Ct. 252; McIntosh v.
St. Louis, etc, R. Co., 182 Mo. App.
288, 168 S. W. 821; Sells v. Atchison,
etc., R. Co. (Mo.), 181 S. W. 106; Pipes
v. Missouri Pac. R. Co. (Mo.), 184 S.
W. 79.

South Carolina—Howell v. Atlantic,
etc., R. Co., 99 S. C. 417, 83 S. E. 639.

Wisconsin.—Sweet v. Chicago, etc.,
R. Co., 157 Wis. 400, 147 N. W. 1054.

262

4. Fleming v. Norfolk, etc., R. Co.,
160 N. C. 196, 76 S. E. 212; Renn ~@.
Seaboard Air Line Railway (N. C.),
86 S. E. 964, affirmed in 36 S. Ct. 567;
Bennett v. Southern Railway, 98 S. C.
42, 79 S. E. 710, affirmed in 34 S. Ct.
566.

5. What constitutes procedure.—
Chesapeake. etc, R. Co. v. Kelly (U.
S.), 36 S. Ct. 630; Kansas, etc., R. Co.
v. Leslie, 112 Ark. 305, 167 S. W. 83,
Ann. Cas. 1915B, 834, reversed on other
grounds in 35 S. Ct. 844.

6. Louisville, etc., R. Co. v. Stewart,
156 Ky. 550, 161 S. W. 557, affirmed in
36 S. Ct. 586.

See Fleming v. Norfolk, etc., R. Co.,
160 N. C. 196, 76 S. E. 212, where con-
tributory negligence as a partial de-
fense was held not available to the
defendant because not set up in the
answer and proved as required by the
state statute.

7. United States—Brinkmeier v. Mis-
souri Pac. R. Co., 224 U. S. 268, 56 L.
Ed. 758, 32 S. Ct. 412; Kansas, etc., R.
263 PROCEDURE. §§ 123-124
as matter of course;8 the duty of the court to correct instructions sub-
mitted; ® the sufficiency of the evidence to make a case for the jury; 1° the
direction of judgment notwithstanding the verdict; 11 and the constitution of
the jury and number required to return a verdict,!? are controlled by the

rules of the local courts.

§ 124. Substantive Rights Not to Be Defeated.—The difficulty
arises from confounding matters of substance and procedure, because any
substantive right or defense arising under the federal law cannot be lessened
or destroyed by a rule of practice.13 Thus the duty rests upon the plaintiff
to prove the defendant to have been negligent, and a statute creating a pre-
sumption of negligence in certain cases cannot aid to this end, though recog-
nized in the state courts as a rule of evidence.14 And a rule of the state
courts which imposes upon the plaintiff the burden of showing himself free
from fault, is not a rule of procedure, but goes to the substance of plaintiff's

Case,

Co. v. McAdow (U. S.), 36 S. Ct. 252.
See, also, Seaboard, etc., Railway vw.
Renn (U. S.), 36 S. Ct. 567.

Missouri—McAdow v. Kansas, etc.,
R. Co. (Mo. App.), 164 S. W. 188, 190,
affirmed in 36 S. Ct. 252.

North Carolina —Renn v. Seaboard
Air Line Railway (N. C.), 86 S. E. 964,
affirmed in 36 S. Ct. 567.

“The Employers’ Liability Act con-
fers concurrent jurisdiction upon the
state courts for the trial of causes of
action arising thereunder, and instead
of prescribing the practice and proce-
dure for the state courts, it is provided
in another act of Congress as to ac-
tions at law in the federal courts (and
this falls within that class) that: “The
propriety of amendments to pleadings
in the circuit and district courts of the
United States is governed by the pro-
visions of § 1914 of the Revised Stat-
utes to the effect that: The practice,
pleading and form and mode of pro-
ceeding in civil causes other than
equity and admiralty causes in the cir-
cuit and district courts shall conform
as near as may be to the practice,
‘pleadings and form and mode of pro-
ceeding existing at the time in like
causes in the courts of record of the
state within which such circuit or dis-
trict courts are held. Any rule of
court to the contrary notwithstanding.
1 Ency. U. S. 298.’ If, therefore, the
action had been commenced in a court
of the United States, the power would
have existed of ‘inserting other allega-
tions material to the case’ in conform-
ity with our statute (Revisal, § 507),
and this power can not be less when
the action is brought in the courts of
the state.’ Renn v. Seaboard Air

The federal courts hold that the burden of proving plaintiff’s negli-

Line Railway (N. C.), 86 S. E. 964,
969, affirmed in 36 S. Ct. 567.

8. Kansas, etc., R. Co. v. McAdow
(U. S.), 36 S. Ct. 252.

9. Chesapeake, etc, R. Co. v. De-
Atley (U. S.), 36 S. Ct. 564.

10. Louisville, etc., R. Co. v. John-
son, 161 Ky. 824, 171 S. W. 847; Howell
v. Atlantic, etc, R. Co. 99 S. C. 417,
83 S. E. 639; Dutton v. Atlantic, etc.,
R. Co. (S. C.), 88 S. E. 263. See post,
“To Take Question to Jury, Follow-
ing Federal Rule,” § 164.

11. Marshall «7. Chicago, etc., R. Co.
(Minn.), 157 N. W. 638.

12. See ante, “Competency of Juris-
diction as Affected by Constitution of
Jury or Verdict Not Unanimous,”
§ 111.

13. Substantive rights not to be de-
feated.—Norfolk Southern R. Co. w.
Ferebee, 238 U. S. 269, 59 L. Ed. 1303, .
35 S. Ct. 781.

14. Presumption from injury.—In
Louisville, etc., R. Co. v. Rhoda (Fla.),
71 So. 369, the court had charged as
provided by a local law that there was
a presumption of negligence from an
injury done by the running of the lo-
comotives or cars of a railroad com-
pany, and on appeal it was held that
this did not impose a liability but
merely asserts a rule of evidence. The
case was reversed on appeal to the
United States Supreme Court (238 U.
S. 608, 59 L. Ed. 1487, 35 S. Ct. 601), in
a memorandum decision on authority of
the Horton Case. So that whether the
defendant is negligent or not, is to
be determined by the rule of the com-
mon law without the aid of a local
statutory presumption.
§ 124 FEDERAL EMPLOYERS’ LIABILITY ACT. 264

gence is on the defendant, and in administering this act the state courts
must follow the federal rule.15 But by this it is not to be understood that
the defendant must offer evidence of: the negligence of the plaintiff when
the same is established by plaintiff's own evidence. Any presumption of his
freedom from fault when overthrown by his own evidence, showing him to
be conclusively guilty of contributory negligence, the court should instruct
the jury to so find.16

Also the question of survival is not one of procedure, “but one which de-
pends on the substance of the cause of action.” 17 And in Seaboard, etc.,
Railway v. Renn,!8 while recognizing that an amendment to a com-
plaint was in the discretion of the court, and a matter of local procedure,
not subject to review; still that an amendment if it in fact operated to state
a cause of action under the act, which the original complaint did not state,
and in effect was inconsistent with the provision of § 6 limiting the time in
which the action is to be brought, then it was a federal question subject to
examination.

The state rule of procedure must also be one that is established and set-
tled, and which counsel would have had reason to anticipate, so it is error
amounting to the denial of a federal right where the defendant offered evi-
dence of contributory negligence which the court held admissible in diminu-
tion of damages but it was held properly excluded for the reason that coun-
sel failed to state the purpose and limitation for which it was offered and
there was no settled local rule requiring this to be done and counsel had no
reason to anticipate the same.!®

15. Burden of proof not procedure.

—Central Vermont R. Co. 7. White,
238 U. S. 507, 59 L. Ed. 1433, 35 S.
Ct. 865; Holmberg v. Lake Shore, etc.,
R. Co. (Mich.), 155 N. W. 504, 506.

See post, “Evidence,” Chap. XXIII.

16. Holmberg v. Lake Shore, etc.,
R. Co. (Mich.), 155 N. W. 504.

17. Question of survival.—Michigan
Cent. R. Co. v. Vreeland, 227 U. S. 59,
57 L. Ed. 417, 33 S. Ct. 192; Ann. Cas.

1914C, 176, citing Schreiber v. Sharp-
less, 110 U. S. 76, 28 L. Ed. 65, 3 S.
Ct. 423; Martin v. Baltimore, etc., R.
Co. 151 U. S. 673,38 L. Ed. 314, 14
S. Ct. 533.

18. Amendment of pleadings.—(U.
S.), 36 S. Ct. 567.

19. Failure to conform to unsettled
rule of practice.—Kansas, etc., R. Co.
vw. Jones (U. §.), 36 S. Ct. 513.
CHAPTER XIX.

ELECTION oF REMEDIES.

1. Right to Require Election, § 125.
2. Effect of Election When Other Law Governs, § 126.

§ 125. Right to Require Election.—It is a familiar principle that,
where inconsistent 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 another, or he may pursue all concurrently, until it finally is
decided which affords the remedy. This rule has been followed in actions
where it was doubtful whether the remedy of the plaintiff was under state
statute or at common law. It is equally applicable to the cases under this
act. The principle is not changed in any material respect, because the ques-
tion relates to remedies afforded by the statutes of different sovereign
powers, each exclusive within its own domain. The relief is sought in the
same forum, for the state court has jurisdiction of the cause of action,
whichever law may be controlling.

It would be a great hardship to compel a plaintiff to try out the question
under one law, and, if it in the end shall be decided that it does not apply,
then to test by further litigation the same rights under another law. The short
period of limitations provided by each 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 liberally permitted in cases of this sort, nevertheless the allowance
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.2 In Corbett v. Boston, etc.,
Railroad (Mass.), 107 N. E. 60, 63, the court said:

“Whether a railroad employee is engaged in interstate or intrastate com-
merce often involves legal discrimination of great nicety about which
even the justices of the highest court are not always in harmony. * * *
It would be a saving of expense both to the parties and to the common-
wealth if the two actions could be prosecuted together, so that by one
trial the facts could be ascertained and the causes ended by the deter-
mination of the governing principles of law. Where the settlement of

"an issue of fact depends 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 situa-
tion under an adequate statement of the governing rules of law appli- .
cable to all phases, than to require two distinct and successive inquiries

1, Right to require election—Cor-  niary loss, see ante, “General Nature;
bett wv. Boston, etc., Railroad (Mass.), Survival,” § 76.
107 N. E. 60, 62. 2. Corbett 7. Boston, etc., Railroad
As to requiring election between ac- (Mass.), 107 N. E. 60.
tion for pain and suffering, and pecu-

265
§ 125 FEDERAL EMPLOYERS LIABILITY ACT. 266
before separate tribunals where only a single aspect of the incident
could be open to investigation at one time.” °

The remedy given by the act is not cumulative or optional, and it was not
a matter of election with a plaintiff to bring his action under the state or
federal law. If the facts are such as to bring the case within the operation
of the federal act, then the plaintiff was precluded from any other rem-
edy.4 :

It follows that a plaintiff cannot be required to elect whether a recovery
is claimed under the state or federal law.> In Bankson v. Illinois Cent. R.
Co. (D. C.), 196 Fed. 171, the court said: [the state law permitting]

“Where the same acts of negligence would entitle her to recover, either
under the Employers’ Liability Act of Congress, or under the general
law of negligence, she can, of course, have but one recovery; and being
thus authorized to unite in a single petition, in different counts thereof,
as many causes of action as she may have, she cannot rightly be re-
quired upon filing her petition to elect upon which of said causes of ac-
tion she will rely for recovery. It may be that at the time of filing her
petition she knows the acts of negligence upon which she relies for re-
covery; but whether they authorize a recovery under the Employer’s
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 submitted 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 ques-
tion as one of law, or they may be such as to require the submission
of the question to the jury to determine that question.”

8. Contrary cases disapproved.—“So
far as the reasoning in Louisville, etc.,
R. Co. v. Strange, 156 Ky. 439, 161 S.
W. 239, and South Covington, etc., R.
Co. v. Finan, 153 Ky. 340, 155 S. W.
742, is inconsistent with the result
here reached, we are not inclined to
follow those decisions.” Corbett v.
Boston, etc., Railroad (Mass.), 107 N.
E. 60, 63.

4. No election when federal law su-
preme. — United States. — Oliver v.
Northern Pac. R. Co. (D. C.), 196 Fed.
432, 436.

Connecticut——Vickery v. New Lon-
don, etc., R. Co., 87 Conn. 634, 89 Atl.
277.

Towa—Pelton v. Illinois Cent. R. Co.
(Iowa), 150 N. W. 236.

5. No election required.—United
States—Bankson v. Illinois Cent. R.
Co. (D. C.), 196 Fed. 171; Oliver v.
Northern Pac. R. Co. (D. C.), 196 Fed.
432,

Kansas—Cole v. Atchison, etc, R.
Co., 92 Kan. 132, 139 Pac. 1177. -

Massachusetts. — Corbett v. Boston,
etc., Railroad (Mass.), 107 N. E. 60.

Texas —International, etc, R. Co.v.
Reek (Tex. Civ. App.), 179 S. W. 699.
Wisconsin.—Graber v. Duluth, etc.,
R. Co., 159 Wis. 414, 150 N. W. 489.
The expression in St. Louis, etc., R.
Co. v. Hesterly, 228 U. S. 702, 57 L.
Ed. 1031, 33 S. Ct. 703, that “the plain-
tiff, not the defendant, had the elec-
tion how the suit should be brought,”
can not be construed as an intimation
or decision that an election is required,
but only means that a plaintiff having
a right to state his action as he
thought proper, does not preclude a
defendant who has pleaded under the
action as stated, from contending that
the facts show another law applicable.
Contra.—Louisville, etc, R. Co. v.
Strange, 156 Ky. 439, 161 S. W. 239;
South Covington, etc. R. Co. v. Finan,
153 Ky. 340, 155 S. W. 742; Thompson
v. Cincinnati, etc, R. Co., 165 Ky.
256, 176 S. W. 1006; Louisville, etc.,
R: Co. v. Moore, 156 Ky. 708, 161 S.
W. 1129; Cincinnati, etc, R. Co. wv.
Clarke (Ky. App.), 185 S. W. 94, 95.
267 ELECTION OF REMEDIES. §§ 125-126

So a plaintiff, by bringing and discontinuing an action at common law
or under a:state statute, is not barred by the doctrine of election of reme-
dies from subsequently bringing his action under the federal statute.®

So too it has been held that a petition which states a cause of action under
the common law, a state statute, and the federal act, amounts only to the
statement of a single cause of action and that the plaintiff cannot be required
to elect between them.’ And as the defendant is only liable once for dam-
ages this presents no argument for an election under a petition claiming in
two counts liability under the federal act and a state statute.§

§ 126. Effect of Election When Other Law Governs.—But where
the plaintiffs, who were the widow and minor children, elected to proceed
under the state law, and the facts showed the federal law applicable they
could not afterwards claim a recovery under the federal law as the right
of a recovery under that was in the personal representative.® And where
the plaintiff at the close of his own case so amended his complaint which
had stated a cause of action under a state law, as to state a cause of action
under the federal law, he thereby elected to abandon his rights under the
state law and to insist upon a recovery under the federal act. The facts
showing the state law applicable the court at the request of the defendant
directed a verdict, the plaintiff was estopped from repudiating his election,
to claim a recovery under the state law.1°

In Armbruster v. Chicago, etc., R. Co.,11 an action was first brought by
the decedent’s widow under a Missouri statute to which the defendant
pleaded that it was a common carrier and with the employee was engaged
in interstate commerce. The plaintiff filed a subsequent suit as administra-
tor under the federa] act. The two cases were consolidated at the trial
and at the close of the evidence plaintiff required to elect which action she
would prosecute and elected to stand on the Missouri statute, and the case
was accordingly submitted thereunder.. On appeal the supreme court held
that it was error to require this election but that the question should have
been submitted to the jury as to whether or not the parties were employed
in interstate commerce. The evidence showing that they were, the court
ordered a new trial and if the evidence were substantially the same, that
a verdict be directed against the plaintiff as widow, and the case submitted
to the jury under the action asserted upon the federal act.

6. Bringing and discontinuing other 8.
action—Hogan v. New York Cent.
etc., R. Co., 139 C. C. A. 328, 223 Fed.
890.

7. Election between common, state, 7.

Defendant only liable once .—
Bankson v. Illinois Cent. R. Co. (D.
C.), 196 Fed. 171.

9. Effect of wrong election.—Penny
New Orleans, etc., R. Co., 135 La.

and federal law.—Rice v. Boston, etc.,
Railroad (D. C.), 203 Fed. 580; Payne
v. New York, etc., R. Co., 201 N. Y.
436, 95 N. E. 19.

962, 66 So. 313.

10. Bravis v. Chicago, etc., R. Co.,
133 C. C. A. 228, 217 Fed. 234.

11. Same—On trial of consolidated
actions.—166 Iowa 155, 147 N. W. 337.
CHAPTER XN.

PARTIES.

1. Party Plaintiff, § 127.
2. Parties Defendant, § 128.

§ 127. Party Plaintiff—That no one but the personal representative
can maintain the action was previously pointed out.1. Where the plaintiff
assigns half of his claim against the defendant to an attorney, it is not nec-
essary that he be made a party, so that a plea in abatement on that ground
is properly overruled.?

§ 128. Parties Defendant.—As only common carriers are liable un-
der the act, an individual or a corporation, not a common carrier, cannot
be made a joint defendant.2 Nor can an employee of the defendant rail-
road company be joined with it as a defendant. So when the court had
required the plaintiff to elect whether he would proceed under the federal
act or the state law, and he had elected to proceed under the former, it
necessarily followed that the action must be dismissed as against two
individual defendants, who were the co-employees of appellant, for the
federal act provided only for recovery by employees against a “common
carrier by railroad while engaged in commerce between any of the several
states,” and nowhere, either expressly or by inference, provides for a re-
covery by one employee against his co-employees. To have overruled this
motion, after the election to proceed under the federal act, would have
left pending one action under the federal act against the carrier, and another
under the state law against the individual defendants.®

1. Party plaintiff.—See ante, “Ac-
tion Maintainable Only by Personal
Representative,” § 81.

2. Making assignee of claim party.—
Chicago, etc, R. Co. v. Cosio (Tex.
Civ. App.), 182 S. W. 83.

8. Copper River, etc, R. Co. wv.
Heney, 128°C. C. A. 131, 211 Fed. 459.

4, Joint liability with employees.—
Kelly v. Chesapeake, etc., R. Co. (D.
C.), 201 Fed. 602.

5. Thompson v. Cincinnati, etc., R.
Co., 165 Ky. 256, 176 S. W. 1006.

Railroad jointly operated by two
companies.—Where two railway com-
panies, incorporated under the laws of
different states, but whose tracks con-
nect at the state line, and together
form a continuous line of railway ex-
tending into both states, and both said
companies use the same headquarters,
roundhouse, and switch yards, and

have the same managing and operating
officers, and employ and use the same
engineers and train crews, and use
indiscriminately each other’s engines,
cars, and trains, and jointly operate
through trains and train crews over
both lines of road, and sell continuous
tickets and carry passengers over both
roads, and deposit the earnings of both
companies in one common fund re-
ceived, kept and disbursed by a com-
mon auditor of both companies, and
from which common fund the employ-
ees and expenses of both companies
are paid, and the joint earnings and
expenses are respectively credited and
charged to each company in propor-
tion to mileage owned by it of the ag-
gregate contiguous lines of railway
in the two states. and the same com-
mon managing officers of both compa-
nies have authority to employ, direct,

268
269

PARTIES.

§ 128

In an action against a lessee of a railroad for injuries under the act, the

lessor road is a proper party.®

Where the plaintiff joined two defendants one of whom was a common
carrier and the other not and as under the act only the one that was a
common carrier could be liable, defendant’s remedy was to move the court
when the evidence disclosed the misjoinder to require the plaintiff to elect as
against which one of the defendants he would proceed.7

control, and discharge, at. will, the en-
gineers and other employees of both
companies, and, all of whom may be
required to work on either company’s
line of railway, held, in such case, an
engineer so employed and controlled,
who is injured by the negligence of
one or both of such railway companies,
while doing the work of both, may sue
one or both such companies in the
courts of either state, and recover his

'

damages, provided he is otherwise en-
titled to damages. Wichita Falls, etc.,
R. Co. v. Puckett (Okla.), 157 Pac. 112.

6. Lessor.—Lloyd wv. Southern R.
Co., 166 N. C. 24, 81 S. E. 1003, af-
firmed in 36 S. Ct. 210.

7. Motion to discontinue as to -im-
proper parties.——Copper River, etc., R.
Co. v. Heney, 128 C. C. A. 131, 211
Fed. 459. i
CHAPTER XXI.

PLEADING.

1. Declaration or Complaint, §§ 129-137.
. Unnecessary to Plead Statutes, § 129.
. That Plaintiff and Defendant Were Engaged in Interstate Commerce, § 130.
. Existence of Beneficiaries, § 131.
. Certainty of Allegations, § 132.
. Sufficiency to Show Negligence, § 133.
. Aider by Plea or Answer, § 134.
. Negativing Defenses, § 135.
. Joinder of Causes of Action, § 136.
i. Amendment of Declaration or Complaint, § 137.
2. Plea or Answer, §§ 138-141.
a. Necessity of Defendant Pleading Act as Defense, § 138.
b. Pleading Assumed Risk and Contributory Negligence, § 139.
c. Plea to Venue, Where Action Brought in Federal Court, § 140.
d. Lis Pendens, § 141.

mi wo aog¢ep

§§ 129-137. Declaration or Complaint.—§ 129. Unnecessary to
Plead Statutes.—A right of action for wrongful death being unknown to
the common law, it is essential that it be based upon some applicable stat-
ute.1 And were it not for the court’s judicial knowledge of this statute, it
would have to be pleaded. as the foundation of the action.2 But under the
doctrines relating to the judicial notice of statutes, it is not necessary to
plead the federal statute in order to rely thereon in an action in a state
court, since it is not a foreign law as to the state courts. It is sufficient to
set out a statement of facts bringing the case within the terms of the stat-

ute.3

1. Declaration or complaint—Neces-
sity for basing statutory action upon
applicable statute—Michigan Cent. R.
Co. v. Vreeland, 227 U. S. 59, 57 L.
Ed. 417, 33 S. Ct. 192, Ann. Cas. 1914C,
176; St. Louis, etc., R. Co. v. Seale,
229 U. S. 156, 57 L. Ed. 1129, 33 S.
Ct. 651, Ann. Cas. 1914C, 156.

2. Findley v. Coal, etc., R. Co. (W.
Va.), 87 S. E. 198, 201.

8. Same—Unnecessary to specific-
ally plead or refer to statute in state
courts.—United States. — Seaboard,
etc., Railway v. Duvall, 225 U. S. 477,
56 L. Ed. 1171, 32 S. Ct. 790; Kansas,
etc., R. Co. v. McAdow (U. S.), 36
S. Ct. 252.

Arkansas.—St. Louis, etc. R. Co. v.
Hesterly, 98 Ark. 240, 135 S. W. 874,
reversed on other grounds in 33 S.
Ct. 703; Kansas, etc., R. Co. v. Cook,
100 Ark. 467, 140 S. W. 579.

270

The case is different from taking a constitutional point in a state

Georgia—Southern R. Co. v. An-
sley, 8 Ga. App. 325, 68 S. E. 1086;
Gainesville Mid. Railway v. Vandiver,
141 Ga. 350, 80 S. E. 997.

lowa.—Bradbury v. Chicago, etc., R.
Co., 149 Iowa 51, 128 N. W. 1, 40 L.
R. A. N. S., 684.

Kentucky—Lemon v. Louisville, etc.,
R. Co., 137 Ky. 276, 125 S. W. 701;
Cincinnati, etc., R. Co. v. Tucker (Ky.
App.), 181 S. W. 940.

Michigan —Fernette v. Pere Mar-
quette R. Co., 175 Mich. 653, 141 N.
W. 1084, 144 N. W. 834; Jorgenson v.
Grand Rapids, etc., R. Co. (Mich.), 155
N. W. 535.

Minnesota. — Denoyer v. Railway
Transfer Co. 121 Minn. 269, 141 N.
W. 175; McDonald v. Railway Trans-
fer Co., 121 Minn. 273, 141 N. W. 177;
271

PLEADING.

§ 129

court for writ of error to the federal supreme court.*
Neither is it necessary to plead the statute in the federal courts or refer

thereto in the declaration in order to confer jurisdiction.

If the facts are

sufficient to sustain an action under the statute, appropriate allegations

thereof are all that is necessary, since it is the duty of the courts, state and

federal, to take notice of and enforce the laws of the United States, and they

are presumed to be cognizant thereof without pleading, and to know that

this particular act had the effect of superseding all state laws with respect

to the responsibility of interstate carriers by railroad to their employees in-

jured in such commerce after its enactment.®
The proper procedure, as heretofore stated, is to plead the facts,® setting

Ahrens v. Chicago, etc.,
Minn. 335, 141 N. W. 297.

Missouri—MclIntosh v. St. Louis,
etc, R. Co., 182 Mo. App. 288, 168 S.
W. 821; Pipes v. Missouri Pac. R. Co.
(Mo.), 184 S. W. 79; Hartman v. Chi-
‘cago, etc., R. Co. (Mo. App.), 182 S.
W. 148, 150.

Ohio.—Erie R. Co. v. Welsh, 89 O.
St. 81, 105 N. E. 189.

South Carolina—Mims v. Atlantic,
etc., R. Co., 100 S. C. 375, 85 S. E. 372.

Texas—San Antonio, etc., R. Co. v.
Littleton (Tex. Civ. App.), 180 S. W.
1194.

Vermont—Bouchard v. Central, etc.,
R. Co., 87 Vt. 399, 89 Atl. 475.

Wisconsin. — Rowlands v. Chicago,
etc. R. Co., 149 Wis. 51, 135 N. W.
156.

As to right to rely on act when not
pleaded to avoid release, see ante,
“Contract, Stipulation or Device In-
tended to Defeat Operation of Stat-
ute,” § 29.

“This court, in the case of Ft.
Worth, etc, R. Co. vw Stalcup (Tex.
Civ. App.), 167 S. W. 279, writ of er-
ror denied in 170 S. W. xviii, no op.,
held substantially that, when the peti-
tion showed the employee, when
killed, was employed in interstate
commerce, the allegation was suff-
cient to designate the statute controll-
ing. A writ of error was refused in
that case by the Supreme Court of
this state, as well as by the Supreme
Court of the United States.” Chicago,
etc., R. Co. v. Cosio (Tex. Civ. App.),
182 S. W. 83, 86.

4 Ullrich v. New York, etc.,. R.
Co. (D. C.), 193 Fed. 768, 771.

5. In federal courts.—Missouri, etc.,
R. Co. v. Wulf, 226 U. S. 570, 57 L.
Ed.. 355, 33 S. Ct. 135, Ann.-Cas. 1914B,
134; Ullrich v. New York, etc., R: Co.
(D. C.), 193 Fed. 768, 771; Cound vw.
Atchison, etc., R. Co. (C. C.), 173 Fed.
527, 532; Whittaker v. Illinois Cent. R.

R. Co., 121

Co. (C. C.), 176 Fed. 130; Smith v.
Detroit, etc., R. Co. (C. C.), 175 Fed.
506; Clark w. Southern Pac. Co. (CL.
C.), 175 Fed. 122; Erie R. Co. v. Ken-
nedy, 112 C. C. A. 76, 191 Fed. 332;
Tralich v. Chicago, etc. R. Co. (D.
C.), 217 Fed. 675; Morrison v. Balti-
more, etc, R. Co. (D. C.), 40 App.
Cas. 391, Ann. Cas. 1914C, 1026; Mc-
Chesney v. Illinois Cent. R. Co. (D.
C.), 197 Fed. 85; Grand Trunk, etc.,
R. Co. v. Lindsay, 233 U. S. 42, 58
L. Ed. 838, 34 S. Ct. 581, Ann. Cas.
1914C, 168; Garrett v. Louisville, etc.,
R. Co., 117 C. C. A. 109, 197 Fed. 715;
Kelly v. Chesapeake, etc., R. Co. (D.
C.), 201 Fed. 602.

6. Plaintiff should plead the facts.
—United States—Erie R. Co. v. Ken-
nedy, 112 C. C. A. 76, 191 Fed. 332.

Georgia.—Gainesville Mid. Railway
v. Vandiver, 141 Ga. 350, 80 S. E. 997;
Louisville, etc., R. Co. v. Barrett, 143
Ga. 742, 85 S. E. 923.

Indiana.—Vandalia R. Co. v. Stringer,
182 Ind. 676, 106 N. E. 865, 107 N. E.
673.

Massachusetts—Corbett v. Boston,
etc., Railroad (Mass.), 107 N. E. 60.

Minnesota. — Denoyer v. Railway
Transfer Co., 121 Minn. 269, 141 N.
W. 175.

South Carolina—Mims v. Atlantic,
etc., R. Co., 100 S. C. 375, 85 S. E. 372.
See also, ante, “Right to Recover un-
der Either State or Federal Law—
Pleading and Proof,” § 27.

“While it was ruled, in the case
cited above [Gainesville Mid. Railway
v. Vandiver, 141 Ga. 350, 80 S. E. 997],
that it was unnecessary under the cir-
cumstances to specially plead the stat-
ute, it was not ruled that it was un-
necessary to plead facts which might
be relied on to show that the case fell
within the operation of one statute or
the other. Owing to the difference
between the state statute and the fed-
eral statute and the circumstances. un-
272

§ 129 FEDERAL EMPLOYERS’ LIABILITY ACT.

them out, if need be, in separate counts, where the local practice permits.”

By so doing a cause of action may be stated under either a state or the
federal statute.8 Thus a complaint which avers that the appellant was a
railroad corporation, engaged in interstate commerce, and alleges that he
(appellee) was injured by reason of the carelessness and negligence of the
engineer in allowing the water to become low on the crown sheet of the
locomotive, and then suddenly injecting water into the boiler of said loco-
motive and causing a sudden and extreme amount of steam to be generated,
thus causing the crown sheet to drop into the fire box, and thus causing a
loud report and noise, which led appellee to believe he was in danger of
great bodily harm, and, acting on that belief, jumped from the window
of said cab and was severely injured; that appellee was a brakeman on ap-
pellant’s train; and that it was his duty, and that he was directed, to ride in
the cab of said engine, while running, states a cause of action either under
the statutes of Indiana,® or under the federal act.1° Also a complaint
which alleged that the defendant’s line of railroad extended from Charlotte,
in the state of North Carolina, through the state of South Carolina, to At-
lanta, in the state of Georgia, said railroad being an interstate road and en-
gaged in interstate commerce, and plaintiff was employed as a bridge car-
penter upon defendant’s said line of railroad, and was working as such with
a ‘bridge force in the yard of defendant, at Greenville, S. C., was sufficient
to state a cause of action under the federal act, or the state law. Besides
this, if the allegation of the complaint that the plaintiff was engaged in work
on a trestle used by a road in interstate commerce did not allege interstate
business, still the answer specifically alleged the interstate employment.!!

If, however, the plaintiff does undertake to plead the statute, state or
federal, an erroneous reference to the one in a cause of action which, if sus-
tained at all, must legally rest upon the other, will not invalidate the plead-
ing, but such erroneous plea or reference to the statute may be stricken out
as surplusage, and then if there is enough left to state a cause of action
under the applicable law the case may proceed to judgment accordingly ;
or the plaintiff may amend so as to bring himself within the applicable
statute subject to the rules applicable to the introduction of new causes of
action by amendment.!?

der which the one or the other should Southern R. Co. (Ind. App.), 101 N. E.

be applied, facts of this character go
to the substance of the case, and can
not be judicially recognized as can be
the substance of the statutes.” Louis-
ville, etc. R. Co. v. Barrett, 143 Ga.
742, 85 S. E. 923.

7. Setting out facts in separate counts.
—Thomas v. Chicago, etc, R. Co. (D.
C.), 202 Fed. 766; Bankson v. Illinois,
Cent. R. Co. (D. C.), 196 Fed. 171. See
post, “Joinder of Causes of Action,”

126.

: 8. Complaint showing action under
state or federal statute—Taylor v.

506; Vandalia R. Co. v. Stringer, 182
Ind. 676, 106 N. E. 865, 107 N. E. 673;
San Antonio, etc., R. Co. uw. Littleton
(Tex. Civ. App.), 180 S. W. 1194.

9. Burns 1914, § 8017, cl. 4.

10. Vandalia R. Co. v. Stringer, 182
Ind. 676, 106 N. E. 865, 107 N. E. 673.

11. Camp v. Atlanta, etc., R. Co., 100
S. C. 294, 84 S. E. 825.

12. Effect of erroneous plea or refer-
ence to statute—United States——Mis-
souri, etc, R. Co. vw. Wulf, 226 U. S.
570, 57 L. Ed. 355, 33 S. Ct. 135, Ann.
Cas. 1914B, 134. See, also, Erie R. Co.
273 PLEADING. § 129

In Wabash R. Co. v. Hayes,!* an action was brought under the federal
act. But omitting the allegations which, if proved, would have made the
federal statute applicable, a cause of action was stated under the state law.
The proof failed to show that the injury occurred in interstate commerce,
and, at defendant’s request, the court instructed the jury that the federal
statute was not applicable. The case was then submitted to the jury under
the state law, and the plaintiff recovered. The federal supreme court sus-
tained the judgment, holding that the state “court merely gave effect to a
rule of local practice, the ape eation of which was not iM any wise in con-
travention of the federal act.”

In San Antonio, etc., R. Co. v. Littleton!* it is said that should the plain-
tiff file an action under the federal act as administrator and the evidence

v. Kennedy, 112 C. C. A. 76, 191 Fed.
532.

Georgia.—Gainesville Mid. Railway v.
Vandiver, 141 Ga. 350, 80 S. E. 997.

Kentucky.—Illinois Cent. R. Co. wv.
Kelly (Ky. App.), 181 S. W. 375; Jones
v. Chesapeake, etc., R. Co., 149 Ky. 566,
149 S. W. 951.

Michigan—Jorgenson v. Grand Rap-
ids, etc., R. Co. (Mich.), 155 N. W. 535.

Missouri.—Carpenter v. Kansas, etc.,
R. Co., 189 Mo. App. 164, 175 S. W.
234,

Montana.—Alexander v. Great North-
ern R. Co. (Mont.), 154 'Pac. 914, 916.
And see ante, “Right to Recover un-
der Either State or Federal Law—
Pleading and Proof,” § 27.

“In pleading a cause of action, where
a foreign statute is not relied upon, it
is unnecessary, and indeed it is im-
proper, to incorporate in the pleading
a statement of the law upon which the
cause of action is based. The court
will apply the appropriate law to the
facts as pleaded, and the reference to
the law will be regarded as surplusage.
Voelker v. Chicago, etc, R. Co. (C
C.), 116 Fed. 867. Of course, it is not
error to strip a plea of immaterial mat-
ter or mere surplusage; and therefore
there was no error in allowing the
amendment striking from the petition
reference to its being brought under
the Georgia statute.” Gainesville Mid.
Railway v. Vandiver, 141 Ga. 350, 80 S.
E. 997, 998.

“It is said that the opinion of the
Kansas City Court of Appeals in the
case of Moliter v. Wabash R. Co., 180
Mo. App. 84, 168 S. W. 250, and our
opinion in McIntosh v. St. Louis, etc.,
R. Co., 182 Mo. App. 288, 168 S. W.
$21, are in conflict, and that, if we fol-
low the McIntosh Case in deciding the
present case, we will again be in, con-
flict with the Moliter Case. In the

Fed Act—18

present case the plaintiff alleges in his
petition, and the testimony shows, that
he was employed by defendant as a
brakeman on its freight train from
Pittsburg, Kan., running through Mis-
souri, Arkansas, and into Oklahoma.
It is alleged in his petition that while
he was about the performance of his
duties in which he received his injury
he was in exercise of ordinary care.
It is also alleged that at the time and
place of receiving his injury the com-
mon-law liability of the master for in-
juries to employees was in force. Both
in the Moliter Case and the McIntosh
Case decisions of the Supreme Court
of the United States are cited holding
that, when the facts disclose a case
coming under the Employers’ Liability
Act, the petition is in no manner af-
fected by reference to a noneffective
law; so that we can say, and be in
harmony with all the decisions to
which our attention has been directed,
that the petition in this case states
facts sufficient to constitute a cause of
action under the act in question. The
difference between the Moliter and
McIntosh Cases is that in the former
case (180 Mo. App. 87, 88, 168 S. W.
250) it was conceded by the plaintiff
that the petition stated no cause of
action under the Liability Act. The
testimony disclosed a case under the
act, and it was held that a demurrer to
the testimony should have been sus-
tained, as there was a total failure of
proof of the cause of action alleged.”
Carpenter v. Kansas, etc., R. Co., 189
Mo. App. 164, 175 S. W. 234. See, ‘also,
Pipes v. Missouri Pac. R. Co. (Mo.),
184 S$. W. 79, where the statement in
the Moliter Case is declared an inad-
vertence.

13. 234 U. S. 86, 58 L. Ed. 1226, 34
S. Ct. 729.

14. (Tex. Civ. App.), 180 S. W. 1194.
§ 129 FEDERAL EMPLOYERS’ LIABILITY ACT. 274

showed a case to which the state law was applicable that the term adminis-
trator could be stricken out as surplusage and a recovery allowed under a
state law which gives a right of action to the widow.

Of course, in order to have the benefit of the federal statute in either the
state or federal courts, or to recover under either the state or federal law,
it is necessary that the declaration or complaint should allege facts suffi-
cient to show a case under the one law or the other. That is, whenever
the pleadings show facts pleaded that the case is one that can be tried either
under the federal or state Jaw, then the court can try it under either law.
When the pleadings show facts that bring it under the federal law, it must
be tried under the federal law; and, when the pleadings show it is brought
under the state law, it must be tried under that law,1® but should there be
.nothing in the pleadings to make the federal act applicable, when the evi-
dence shows a case. thereunder, the plaintiff cannot recover, as this is a
failure of proof.17 But should it be admitted that the defendant is a com-
mon carrier engaged in interstate commerce, and that the plaintiff was em-
ployed in such commerce at the time of his injury, it is necessary and es-
sential to allege a cause of action under the federal act because it is ex-
clusive and supersedes the right of action under the state law.18

If the plaintiff is sure of his proof and that it will show conclusively that
the parties were engaged in interstate commerce, it is not necessary to al-
lege the various facts which, put in evidence, would show the defendant
was engaged in interstate commerce and the facts which would show the
plaintiff was employed by it in such commerce at the time he received his
injury. These are matters of evidence, and it is proper for a complaint
to allege in words substantially those of the statute that the defendant was
a railroad company engaged as a common carrier in interstate commerce,
and that the plaintiff was employed by it therein, and that his injury arose
while engaged therein from the negligence of the defendant in certain re-
spects which should be stated with sufficient definiteness.19

The plaintiff who desires to avail himself of the federal act has the bur-

15. Declaration must allege facts etc. R. Co. v, Hawley, 58 Tex. Civ.

showing a case under statute— United
States—Walton v. Southern R. Co.
(C. C.), 179 Fed. 175, 176; Whittaker
v. Illinois Cent. R. Co. (C. C.), 176
Fed. 130; Thomas v. Chicago, etc., R.
Co. (D. C.), 202 Fed. 766.

Arkansas.—St. Louis, etc., R. Co. wv.
Hesterly, 98 Ark. 240, 135 S. W. 874.

Georgia—Southern R. Co. v. Ansley,
8 Ga. App. 325, 68 S. E. 1086.

lowa.—Bradbury v. Chicago, etc., R.

Co., 149 Towa 51, 128 N. W. 1, 40 L.
R. A, N. S., 684.
Texas—Missouri, etc, R. Co. w

Neaves (Tex. Civ. App.), 127.5. W.
1090, 1091, affirmed, no op.; Missouri,

App. 143, 123 S. W. 726.

Washington. — Tsmura vv. Great
Northern R. Co., 58 Wash. 316, 108
Pac. 774.

16. Mims v. Atlantic, etc, R. Co.,
100 S. C. 375, 85 S. E. 372, 373.

17. Moliter v. Wabash R. Co., 180
Mo. App. 84, 168 S. W. 250; Findley v.
Coal, etc, R. Co. (W. Va.), 87 S. E.
198. See post, “Variance,” §§ 164-165.

18. Renn v. Seaboard Air Line Rail-
way (N. C.), 86 S. E. 964, affirmed in
36 S. Ct. 567.

19. Allegations in language of stat-
ute—Southern R. Co. v. Peters (Ala.),
69 So. 611, 613; Lewis v. Denver, etc.,
R. Co. (Minn.), 154 N. W. 945,
275 PLEADING. § 129

den of alleging and proving a case within the statute.2° If, however, the
declaration or complaint does show a state of facts sufficient to bring the
case within the statute, it will be presumed that the case is brought under
the statute and the declaration or complaint will be so construed and the
action will be governed by the act, whether the same be specifically declared
on or not.21, And where a complaint fails to state a cause of action either at
common law or under the federal act and the theory upon which the case
was tried can only be supported by the construction that the complaint is
sufficient under the federal act it will be considered as based thereon.??

On the other hand, where the declaration or complaint fails to allege
facts showing a case within the statute, it will be presumed and held that
the plaintiff is not seeking a recovery under the federal act, but under the
state law, and the sufficiency of the declaration or complaint will be tested
by the state law, 23 and where, under the rules of pleading in vogue in the
state, the plaintiff is not required to make specific allegations as to the char-
acter of the commerce in which he and the defendant were engaging at the
time of the injury the declaration or complaint will not be subject to demur-
rer as failing to show whether the plaintiff is proceeding under the federal
act or under the state law.24 Thus the overruling of a special demurrer to
a petition for failure to state a cause of action under the act is not prejudicial
to the defendant where the uncontroverted evidence shows that a defective
car from which appellee fell was not moving in interstate commerce, that
defendant’s line of railroad did not extend beyond the boundary line of
this state, and that it did not operate any trains outside of the state; and
there was no testimony whatever tending to show that said train, or any
car in it, or any item of freight contained in any car forming a part of said
train, was destined or carried to a point outside of the state. It does not
therefore appear that the defendant was engaged in interstate commerce, or

20. Burden upon plaintiff to show
a case under the statute, if he desires
to proceed under same.—Arkansas.—
St. Louis, etc., R. Co. vu. Hesterly, 98
Ark. 240, 135 S. W. 874, reversed, on
other grounds, in 33 S. Ct. 702.

Iowa.—Bradbury v. Chicago, etc., R.
Co., 149 Iowa 51, 128 N. W. 1, 40 L.
R. A. N. S., 684.

Washington. — Tsmura v. Great
Northern R. Co., 58 Wash. 316, 108
Pac. 774.

21. Action presumed brought under
statute where declaration sufficient.—
Whittaker v. Illinois Cent.’R. Co. (C.
C.), 176 Fed. 130; Cound v. Atchison,
etc, R. Co. (C. C.), 173 Fed. 527, 532;
Smith v. Detroit, etc., R. Co. (C. C.),
175 Fed. 506.

22. Cincinnati, etc. R. Co. v. Gross
(Ind. App.), 111 N. E. 653.

23. Otherwise where declaration

fails to allege case under statute.
United States—Thomas v. Chicago,
etc., R. Co. (D. C.), 202 Fed. 766.

’ Iowa.—Bradbury v. Chicago, etc., R.
Co., 149 Iowa 51, 128 N. W. 1, 40 L.
R. A., N. S., 684.

Texas—St. Louis, etc, R. Co. v.
Seale (Tex. Civ. App.), 148 S. W. 1099,
reversed in 229 U. S. 156, 33 S. Ct. 651;
Missouri, etc., R. Co. v. Neaves (Tex.
Civ. App.), 127 S. W. 1090, 1091, af-
firmed, no op.; Missouri, etc., R. Co.
v. Hawley, 58 Tex. Civ. App. 143, 123
S. W. 726.

24. Want of specific allegations as
to character of commerce—Demurrer.
—St. Louis, etc., R. Co. v. Seale (Tex.
Civ. App.), 148 S. W. 1099, reversed in
229 U. S. 156, 33 S. Ct. 651; Missouri,
etc., R. Co. v. Neaves (Tex. Civ. App.),
127 S. W. 1090, affirmed, no op.; Mis-

' souri, etc, R. Co. v. Hawley, 58 Tex.

Civ. App. 143, 123 S. W. 726.
§ 129 FEDERAL EMPLOYERS’ LIABILITY ACT. 276

that the act of congress mentioned was in any manner involved.”°

What is here said as to demurrer applies, of course, to actions brought in
the state courts, for if the action is brought in the federal courts, and the
jurisdiction is dependent upon showing a case under the federal act,
it is necessary to show specifically the character of the commerce
in which the defendant and the injured employee were engaged at
the time of the accident in order to show a case within the jurisdiction
of the court.26 In a case ‘before the United States Supreme
Court, it was held that though neither the complaint nor the answer makes
any direct reference to the act; but the complaint did allege that the
railroad company was operating a line of railroad between Portsmouth,
Virginia, and Monroe, North Carolina, and that the plaintiff, while in its
employment as baggage master and flagman upon a passenger train running
between said points, was negligently injured by a head-on collision, this
states a ground of action under that act.27 So too, where it is expressly
alleged that the corporate defendant is a common carrier engaged in in-
terstate commerce, the decedent was employed in such commerce, and he
was killed by the negligence of the officers and agents and employees of the
corporate defendant, and the defective condition of its roadbed and engine,
thus bringing the case within the terms of the act, notwithstanding it was
not pleaded.28 Where it is not distinctly alleged in the declaration that the
action is based upon the act, ‘but this effect must be given to the averments
of the declaration when they allege that the deceased met his death while in
the employ of the company, and while it was engaged in interstate com-
merce, as such averments rendered the federal act alone applicable.29 And
the failure of plaintiff's petition to state whether his cause of action was
brought under the state or federal law and its statement that the railroad
of which he was an employee and by which he was injured, was one that
operated only between points within the same state, followed by an aver-
ment of the work in which he was engaged, the manner of his injury and that
the same was caused by a co-employee, is a sufficient statement of his
cause of action against an objection to the introduction of testimony upon
the ground that the defendant was an interstate railroad and that plaintiff
was employed in interstate commerce. It being common knowledge that a
road wholly within a state may at the same time be engaged in interstate
commerce.2® So where it was assigned as error that the petition was de-
fective for the reason that it could not be ascertained whether the suit was
brought under the federal act, or under the statutes of Texas, it was

25. Missouri, etc., R. Co. v. Hawley,
58 Tex. Civ. App. 143, 123 S. W. 726.

26. Same—Where action in federal
court and jurisdiction dependent upon
federal act—Walton v. Southern R.
Co. (C. C.), 179 Fed. 175.

27. Complaints and declarations held
to state case under act, though not
pleaded.—Seaboard, etc., Railway vw.

Duvall, 225 U. S. 477, 56 L. Ed. 1171,
32 S. Ct. 790.

28. Kelly v. Chesapeake, etc., R. Co.
(D. C.), 201 Fed. 602.

29. Garrett v. Louisville, etc., R. Co.,
117 C. C. A. 109, 197 Fed. 715, affirmed
in-35 S. Ct. 32.

30. McIntosh v. St. Louis, etc, R.
Co., 182 Mo. App. 288, 168 S. W. 821.
277 PLEADING.

§§ 129-130

held to show a case under the federal act; as the suit was brought by an
administrator and not by the wife of the deceased; it was alleged substan-
tially that the line of road.runs from Ft. Worth, Tex., to Denver, Colo., it
was expressly alleged that when deceased was killed he was engaged in
making up a train at Texline, Tex., to be moved into and through New
Mexico and Colorado; it was alleged also that the defendant ran through
trains over its line of road from Ft. Worth, Tex., to Denver, Colo. The
suit, having been brought by the administrator, itself was a sufficient desig-
nation of the act under which it was brought.31

Where the complaint alleged that the plaintiff was in the employ of the
defendant on a passenger engine owned by it and “used and operated over
and upon the lines of said defendant company at and between the city of
Chicago, in the state of Ilinois, and the city of Milwaukee, in the state of
Wisconsin,” and, further, “that on the morning of the 25th day of Feb-
ruary, 1910, the plaintiff was employed by and working for said defendant
company in the capacity of a fireman of an engine which was then and there
being used to haul a combined passenger, baggage, express, and mail train
from the city of Chicago northward toward the city of Milwaukee,” the
facts were sufficiently pleaded to show that the case was within the federal
statute, and that it was unnecessary to plead the statute itself.3?

§ 130. That Plaintiff and Defendant Were Engaged in Interstate
Commerce.—In order to state a cause of action under the federal act, it
is essential that the plaintiff’s pleading should allege that the defendant, at
the time of the injury, was a common carrier engaged in interstate com-
merce by railroad,?3 and it should further allege the facts showing that
plaintiff, or the deceased, was injured while employed by the defendant in
such commerce.?4 So while it may be inferred that the defendant was en-
gaged in interstate commerce from an allegation that its line of railway ex-
tended from one state, through another, and into a third, it is insufficient if

31. Ft. Worth, etc., R. Co. v. Stal-
cup (Tex. Civ. App.), 167 S. W. 279,
287, writ of error denied in 170 S. W.
Xvili, no op., citing Voelker v. Chicago,
etc., R. Co. (C. C.), 116 Fed. 867, 869;
St. Louis, etc., R. Co. v. Cox (Tex. Civ.
App.), 159 S. W. 1042, writ of error
granted in 161 S. W. xvi, no op.; East-
ern R. Co. v. Ellis (Tex. Civ. App.),
153 S. W. 701.

32. Rowlands wv. Chicago, etc. R.
Co., 149 Wis. 51, 135 N. W. 156.

33. Allegations necessary to show
case under federal act—Character of
commerce.—United States—Walton v.
Southern R. Co. (C. C.), 179 Fed. 175,
176.

Arkansas.—St. Louis, ete., R. Co. v.
Hesterly, 98 Ark. 240, 135 S. W. 874.

Kentucky.—Cincinnati, etc., R. Co. v.
Tucker (Ky. App.), 181 S. W. 940.

Michigan.—Fernette wv. Pere Mar-
quette R. Co., 175 Mich. 653, 141 N.
W. 1084, 144 N. W. 834.

Washington. — Tsmura v. Great
Northern R. Co., 58 Wash. 316, 108
Pac. 774.

34. Arkansas.—St. Louis, etc. R.
Co. v. Hesterly, 98 Ark. 240, 135 S.
W. 874, reversed, on other grounds,
in 33 S. Ct. 702.

Indiana.—Southern R. Co. v. How-
erton, 182 Ind. 208, 106 N. E. 369, de-
nying rehearing, 105 N. E. 1025.

Kentucky.—Cincinnati, etc. R. Co.
z. Tucker (Ky. App.), 181 S. W. 940.

Washington. — Tsmura v.  Gre-t
Northern R. Co., 58 Wash.: 316, 108
Pac. 774.
278

§ 130 FEDERAL EMPLOYERS’ LIABILITY ACT.

it does not allege that the plaintiff was engaged in interstate commerce.*°

But it is not necessary to allege, as has been held, that the agency or
instrumentality which caused the injury was used or engaged in interstate
commerce.3?

So an allegation in a declaration that “at the time of the injuries here-
inafter complained of your petitioner was engaged in the transportation of
interstate commerce” is clearly an insufficient statement to make a case un-
der the federal act. It should certainly be alleged that defendant was a com-
mon carrier engaged in interstate commerce by railroad.38 And a complaint
which alleges “that the defendant St. Louis, Iron Mountain & Southern
Railway Company is, and was on the date hereinafter mentioned, a railroad
corporation operating a line of railroad in the state of Oklahoma, and was in
said state of Oklahoma a common carrier of freight and passengers for
hire,” is insufficient. There being no allegation that the carrier was engag-
ing in interstate commerce, nor that deceased was injured while employed
by such carrier in such commerce, and, for aught that appears to the con-
trary in the pleadings, the negligence and injury was purely local to the state
of Oklahoma, and the action an ordinary one at common law.?® And a
complaint which shows that the train upon which the employee was injured
was running between points in the same state loaded with gravel and ballast,
does not show a case within the act.4° Nor does one which alleges facts
showing that the defendant was engaged in interstate commerce but does
not allege anything to show that the train upon which the injured employee
was working was so engaged.4!

Where a petition states that plaintiff was an employee of defendant, a
corporation engaged in building, equipping and operating a railroad from a
point in one state to a point in another, that his work was upon a work
train engaged in ditching the sides of the track and removing the dirt to
fills, does not state any facts sufficient to constitute interstate commerce so

as to make the federal act apply.42
~ On the other hand, allegations that the defendant railway company, a
Missouri corporation, was engaged as a common carrier of commerce be-
tween the states of Missouri, Kansas, Arkansas and Texas, and that plain-
tiff was employed at the time of his injury as a swing brakeman on a

35. Inferences to be drawn from 179 Fed. 175; Shade v. Northern Pac.

complaint.—Southern R. Co. v. How-
erton, 182 Ind. 208, 106 N. E. 369, de-
nying rehearing, 105 N. E. 1025.

36. That injury inflicted by agency
of interstate commerce.—lIllinois Cent.
R. Co. v. Rogers, 186 C. C. A. 530, 221
Fed. 52.

37. See ante, “Where Injury to In-
terstate Employee Results from Neg-
ligence of Employee or Agency Not
Engaged in Interstate Commerce,”
§

§ 3.
38. Allegations held insufficient.—
Walton v. Southern R. Co. (C. C.),

R. Co. (D. C.), 206 Fed. 353.

39. St. Louis, etc, R. Co. v. Hes-
terly, 98 Ark. 240, 1385 S. W. 874, re-
versed on other grounds in 33 S. Ct.
703.

40. Same—Showing employee on in-
trastate train—St. Louis, etc., R. Co.
v. Coke, 118 Ark. 49, 175 S. W. 1177.

41. Cincinnati, etc., R. Co. v. Gross
(Ind. App.), 111 N. E. 653.

42. Same—Employee on work train.
—Ft. Smith, etc., R. Co. v. Blevins, 35
Okla. 378, 130 Pac. 525.
279 PLEADING. § 130

local freight train running from Texas into Arkansas, were sufficient to
show that plaintiff’s injury occurred while he and the defendant were en-
gaged in interstate commerce, so as to bring the case within the Act of
April 22, 1908, as amended by the act of April 5, 1910. The allegation be-
ing plainly to the effect that the train was running from the state of Texas
into the state of Arkansas, it was immaterial that it was described as a
local freight train, and without specific allegation that it was then carrying
consignments across the state line. The mere operation of the train across
the state line for the purpose of carrying such interstate shipments as might
be offered was of itself interstate commerce without regard to whether it
.actually carried any shipments of that character upon that particular trip
or not. ‘Nor was it necessary for the complaint to contain a statement
that the particular defective car which caused the injury was one used in
interstate traffic. If it constituted a part of the train at the time plaintiff
was injured, and he was then engaged in discharging his duties in operating
a train engaged in interstate commerce, it is sufficient.44

A petition which charges that a railroad company was at the time of
the injury operating as a lessee, the roads and side tracks of another rail-
road company and that the defendant was employed by the lessee as an
engineer engaged in running trains in interstate service; that preparatory
to operating the engine he was engaged in oiling and inspecting the same
when he was injured, on its face makes a case under the act.45

And a complaint which alleges that the decedent was a bridge carpenter
engaged in repairing a bridge upon a road engaged in interstate and foreign
commerce, sufficiently alleges that both the decedent and the railroad were
engaged in interstate commerce as against a demurrer on that ground.‘
Where the petition alleges that appellant operated a line of railroad from
Amarillo, Tex., to Tucumcari, N. M., and through Oldham county, Tex.,
appellee’s place of residence, and that the injury of which complaint is made
was received by appellee while he was employed in repairing appellant’s
roadbed and track so used, and that it was his duty, as one of the employees
of appellant, to operate a certain car along the line of road for the purpose
of carrying appellant’s servants, together with their tools and the material
for repairing the road on which appellee was then employed as a servant of
the appellant, and that he was injured while thus employed, it is sufficient
to show a cause of action under the act.47

An allegation in a declaration that the defendant owned and operated a

43. Allegations held to state action specting engine.-Southern R. Co. v.

under act—Where brakeman injured
on train carrying both kinds of com-
merce.—Kansas, etc., R. Co. v. Cook,
100 Ark. 467, 140 S. W. 579.’

44. Same—Allegations as to particu-
lar defective car.—Kansas, etc., R. Co.
v. Cook, 100 Ark. 467, 140 S. W. 579.

45. Same—Employee oiling and in-

Lloyd, 239 U. S. 496, 36 S. Ct. 210.
46. Same—Allegations showing em-
ployee repairing interstate road. —
Thomson v. Columbia, etc., R. Co. (D.
C.), 205 Fed. 203. See, also, Camp v.
Atlanta, etc., R. Co., 100 S. C. 294, 84

'S. E. 825.

47. Chicago, etc, R. Co. v. Cosio
(Tex. Civ. App.), 182 S. W. 83, 86.
§ 130 FEDERAL EMPLOYERS’ LIABILITY ACT. 280

railroad extending through two states and that the decedent was employed
in the construction, repair and maintenance of the roadbed of such railway
is sufficient as an allegation that the parties were engaged in interstate com-
merce.48 The following language, “while employed * * *
operating a steam shovel * * * in the removal of earth from the road-
bed and tracks of the defendant,” as set forth in one paragraph, with the
allegation in another paragraph that plaintiff was employed “in the repair
and maintenance of the tracks and roadbed * * * which were employed
for the transportation and movement of defendant’s trains in the conduct
of its business,” which it is alleged was interstate commerce, brings the ac-
tion within the provisions of the Act.*% Where in the complaint it is alleged
that the appellant “‘is at this time, and was at all the times herein mentioned,
a corporation organized and existing under the laws of the state of Wis-
consin, owning and operating an interstate system of railways, with several
branches in the western part of the state of Washington, engaged in com-
merce between the several states from Minnesota to Puget Sound and Ore-
gon,” and that one of its branch lines extended “out of the city of Tacoma
southeasterly, herein called the Wilkeson branch,” on which the accident
to the respondent happened. Though, there is no direct allegation in the
complaint that the so-called Wilkeson branch was, at the time of the injury,
used by the appellant in interstate commerce; but it is clearly so inferable
from the other facts alleged; and it is plain that the pleader meant to allege,
and would be commonly understood as alleging, that the interstate system,
as well as the several branches mentioned, were used by the appellant in its
business of interstate commerce; therefore, this is sufficient as against an
objection raised for the first time by motion for an instructed verdict, and
the record discloses that the trial proceeded throughout on the theory, that
the federal law governed.®°

A declaration which alleges that the defendant was a common carrier en-
gaged in interstate business and maintaining a freight depot and yard at a
certain place where the plaintiff was employed as a switchman that it was
his duty to couple and uncouple cars and at which he was injured, sufficiently
states the interstate character of the business of the defendant and plaintiff.
Even though the engine was used entirely in the yard at the point where he
was injured but moved interstate and intrastate cars as circumstances re-
quired.5t Anda complaint which alleges that decedent was yard clerk, and

48. Jorgenson v. Grand Rapids, etc.,
R. Co. (Mich.), 155 N. W. 535.

49. Tralich v. Chicago, etc, R. Co.
(D. C.), 217 Fed. 675.

“The averments of this complaint
are clearly distinguishable from the
holding of the court in Galveston, etc.,
R. Co. v. Chojnacky (Tex. Civ. App.),
163 S. W. 1011. In that case a gar-
dener was injured by the explosion of
a torpedo which was concealed in
some rubbish upon the premises. This

was not taken from the track, nor was
the gardener employed on the roadbed
or track.” Tralich v. Chicago, etc., R.
Co. (D. C.), 217 Fed. 675, 677.

50. Same—Allegations as to service
on intrastate branch lines.—Smith v.
Northern Pac. R. Co., 79 Wash. 448,
140 Pac. 685.

51. Same—Allegations showing em-
ployee in local yard.—Atlantic, etc.,
R. Co. v. Reaves, 125 C. C. A. 599,
208 Fed. 141.
281 PLEADING. § 130

it was his duty to go into the yards daily and make a record of incoming and
outgoing cars, and that there was a constant movement there of interstate
traffic, and that the injury was received while engaged in such duty, is suf-
ficient to repel a demurrer for want of facts. Because, if there was a con-
stant movement of interstate cars, decedent must necessarily, on the day
he was injured, have been subjected to the duty of making a record of some
car used in interstate commerce.®?

And in Renn v. Seaboard Air Line Railway 58 it is held that a complaint
which alleges the defendant to be a railroad operating between two states,
but does not refer to its doing an intrastate business; and also alleges that
the plaintiff was employed by it, lived in one state and was injured in an-
other, as it in no way referred to any intrastate business, it was a reason-
able and permissible inference that he was engaged in interstate commerce.

Where the complaint alleges, not only those facts upon which depends
the “right” created by the federal act, but also those upon which depend
another “right,” created by the state law, and, moreover, those upon which
the common law “right” depends, it is sufficient. The “case,” for all pur-
poses, arises under the Federal Employers’ Liability Act when the plaintiff
alleges that he was himself engaged in interstate commerce and was injured
by an interstate railroad.5+ Also the allegations of a complaint that the de-
fendant railroad, a common carrier and the codefendant also a common
carrier, by virtue of a lease operated a large railroad yard in which there
were many switch tracks, that the plaintiff was in the employ of one of the
defendants and while so employed was injured, will be held to state a cause
of action within the federal act, though it may have been the counsel’s in-
tention to state one governed by the local law, in view of the fact that the
prior federal law had been declared unconstitutional and that he had no pur-
pose or intent to conceal or mistate the facts.55

And if an employee of a carrier by railroad suffer personal injury from
the negligence of the latter while employed in the performance of his duty,
and such injury result from an accident, occurring in the territories, ap-
propriate allegations of such facts are alone sufficient without specially
pleading the act or without referring to its provisions.56

52. Pittsburgh, etc. R. Co. v. Far-
mers’, etc., Sav. Co. (Ind. App.), 108
N. E. 108.

58. Same—AInferences from allega-
tions.—(N. C.), 86 S. E. 964, affirmed
in 36 S. Ct. 567.

54, Complaint setting out cause un-
der two laws.—Ullrich v. New York,
etc, R. Co. (D. C.), 193 Fed. 768, 771.

In Payne v. New York, etc., R. Co.,
201 N. Y. 436, 95 N. E. 19, the court
of appeals (New York) has held in ef-
fect that a complaint states but a sin-
gle cause of action, although based on

three several grounds of liability, viz.,
the federal statute, the common-law
liability, and the Massachusetts stat-
ute. Rice v. Boston, etc., Railroad (D.
C.), 203 Fed. 580, 581.

See, as to such pleading affecting the
removal of causes, “Fraudulent Allega-
tions Designed to Prevent Removal,”
§ 117.

55. Vickery v. New London, etc., R.
Co., 87 Conn. 634, 89 Atl. 277.

56. Where injury occurs in territory.
—Clark v. Southern Pac. Co. (C. C.),
175 Fed. 122.
282

§ 131 FEDERAL EMPLOYERS’ LIABILITY ACT.

§ 131. Existence of Beneficiaries.—When the action is brought by
the personal representative it is necessary to allege in the complaint that
there are in existence persons answering the description of the beneficiaries
named in the statute; because the action is statutory, and without the stat-
ute the right to bring it would not exist. ‘The representative is vested with
the right to bring it, but only for the benefit of those who are named in the
statute. He is thereby made a statutory trustee for them, not for the bene-
fit of the decedent’s estate. The fund recovered goes to the beneficiaries,
not by virtue of the law of succession, but because it is given them by the
statute. Therefore, if there is no beneficiary within the déscription of the
statute, there is no right of action; for the liability of the defendant is made
contingent upon the existence of one or more beneficiaries. If there are
none, there is no liability. The existence of one or more beneficiaries an-
swering the description of those named in the statute is, therefore, a juris-
dictional averment.57 So it must be distinctly alleged in the petition that the
deceased left surviving him a widow or minor children, or other dependent
relatives.5§

_/ However, where an action is brought, and the beneficiaries are desig-
nated as the “widow and next of kin” this is not a fatal defect, but the
beneficiaries should be alleged to be the ‘surviving widow and children of

the employee.” 5°

to the pecuniary loss that the plaintiff expects to prove.S°

57. Complaint must allege existence
of beneficiaries. — United States. —
Thomas v. Chicago, etc. R. Co. (D.
C.), 202 Fed. 766.

Connecticut.—Farley v. New York,
etc., R. Co., 87 Conn. 328, 87 Atl. 990.

Kentucky.—Cincinnati, etc., R. Co. v.
Tucker (Ky. App.), 181 S. W. 940.

Montana.—Melzner v. Northern Pac.
R. Co. (Mont.), 127 Pac. 1002. See
ante, “Beneficiaries under Act,” Chap.
XIV.

In Gulf, etc, R. Co. v. McGinnis
(Tex. Civ. App.), 147 S. W. 1188, 1189,
reversed on other grounds in 228 U.
S. 173, 57 L. Ed. 785, 33 S. Ct. 426, it
was objected that the statement in a
petition that the suit was brought by
Mrs. Mary McGinnis, as administra-
trix of the estate of W. T. McGinnis,
deceased, for the use and benefit of
herself, as surviving wife, showed that
it was brought in a dual capacity.
But the court said that the statements
therein as to whose benefit it was
brought were not improper and should
not be stricken out, because that un-
der the statute such allegations were
certainly proper if not necessary.

58. Bankson v. Illinois Cent. R. Co.
(D. C.), 196 Fed. 171.

So too, there should be an averment in the pleadings as

And when the

The following allegation as to bene-
ficiaries and pecuniary loss was held
sufficient under the act: “That this
action is brought for and on behalf
of the next of kin of the said deceased,
the said deceased having left no
widow or children surviving him; that
the mother of the said deceased, Car-
rie Toft, of the age of fifty-three (53)
years, the sister, Mabel Toft, twenty
(20) years of age, and a brother, Mil-
ton Toft, seventeen (17) years of age,
are the only surviving next of kin of
the said deceased; that the mother of
the said deceased at the time of his
death was entirely, and the sister and
brother were in part, dependent upon
the said deceased for their care, sup-
port, and maintenance,” and though
the brother and sister were not prop-
erly beneficiaries, no evidence being
introduced as to their pecuniary loss,
the reference to them must be re-
garded as surplusage.’ Illinois Cent.
R. Co. v. Stewart, 138 C. C. A. 444,
223 Fed. 30.

59. Designation of beneficiaries.—
‘Hall v. Vandalia R. Co. 169 IU.
App. 12.

60. Pecuniary loss.—Nashville, etc.,
Railway v. Anderson (Tenn.), 185 S.
W. 677.
283 PLEADING. §§ 131-133

petition shows the relation of the dependent to the deceased, a general aver-
ment that the person for whose benefit the action was brought was depend-
ent upon the deceased and had a pecuniary interest in his life and suffered
a pecuniary loss by his death is sufficient, without setting out in detail the
reasons showing the dependency or the extent of the pecuniary loss.®1

§ 132. Certainty of Allegations.—Whether defendant was engaged
in interstate commerce was a matter about which plaintiff had no knowl-
edge or information, but was a fact peculiarly within the knowledge of the
defendant. In such a case the pleader is relieved from the necessity of using
that degree of accuracy and certainty which would be required were the
facts known to him.62. Also if there is any informality about the pleading
due to which it cannot be determined whether or not it is brought under the
federal act, the remedy of defendant was a motion to make the complaint
more definite and certain.5? And this also is the proper course to pursue if
the complaint fails to show with definiteness that the employee by whom
another was injured was acting within the scope of his employment.®4

§ 133. Sufficiency to Show Negligence.—A question as to the suffi-
ciency of the pleadings to show negligence is one of procedure.65 There-
fore, where a petition charged in general terms that the death of an em-
ployee was brought about by the negligence of the agents and employees of
defendant, but does not specify in detail the negligence complained of, it is
not open to demurrer because the plaintiff was proceeding under a federal
statute and should have been required to set up with particularity the acts of
negligence complained of as he would have been required to do in the fed-
eral court. A general allegation of negligence under the state procedure
being held sufficient prior to the enactment of the Employers’ Liability Act,
such a petition will be held good even when proceeding under that act.6
And where the declaration in an action against a railway company for death
by wrongful act, properly construed, contains a general charge of negli-
gence, and also a charge of negligence in the violation of a particular rule

61. Details and extent of dependency-

need not be alleged.—Louisville, etc.,
R. Co. v. Holloway (Ky. App,), 181 S.
W. 1126, 1128.

62. Certainty of allegations.—Mis-
souri, etc. R. Co. v. Hawley, 58 Tex.
Civ. App. 143, 123 S. W. ®26. See,
also, Fernette v. Pere Marquette R.
Co., 175 Mich. 653, 141 N. W. 1084,
144 N. W. 834; Fleming v. Norfolk,
etc, R. Co., 160 N. C. 196, 76 S. E.
212.

Under the Missouri practice it is
held that a motion to make the peti-
tion specific and definite as to the
character of the defendant’s business
is appropriate if the defendant has any
defense to interpose based on the dis-
closure that the case was governed by

the federal act; and an objection to
evidence to test its sufficiency is not
favored. McIntosh v. St. Louis, etc.,
R. Co., 182 Mo. App. 288, 168 S. W.
821.

68. Motion to make more certain.
—Rowlands v. Chicago, etc., R. Co.,
149 Wis. 51, 135 N. W. 156.

64. Arizona Eastern R. Co. v. Bryan
(Ariz.), 157 Pac. 376.

65. Sufficiency to show negligence—
Question of procedure.—Louisville,
etc, R. Co. v. Stewart, 156 Ky. 550,
161 S. W. 557. See, also, Central Ver-
mont R. Co. uv. White, 238 U. S. 507,
59 L. Ed. 1433, 35 S. Ct. 865.

66. General allegations.—Louisville,
etc, R. Co. v. Stewart, 156 Ky. 550,
161 S. W. 557.
§ 133 FEDERAL EMPLOYERS’ LIABILITY ACT, 284

of the company in the operation of its trains, and right of recovery is not
thereby limited solely to negligent infraction of such rule.67

An alternative charge alleging the negligence of the defendant, in failing
to discover the peril of an employee or to warn him of his danger, in the
absence of a motion or demurrer pointing out the defect, is sufficient to state
a cause of action and the theory of the case.®8 A declaration against a rail-
road company, in an action by one of its employees for personal injury, re-
ceived while employed in interstate traffic, is not demurrable because its
averments show that the injury was caused either by the negligence of a
fellow servant or by the combined negligence of himself and a fellow serv-
ant.69

Where a complaint states that decedent was an employee of the defend-
ant railroad, engaged in its yard as a clerk, and that there was a constant
movement of traffic about him and that while so engaged he was run over
and killed by an engine which was running backwards at a dangerous speed,
and that the employees on the engine could have seen the decedent, suffi-
ciently show a duty to decedent, that it was violated, and the proximate
cause of the injury as against a demurrer for that reason.?°

Where the petition, construed, as it must be, most strongly against the
pleader, shows that the injured employee, when he voluntarily stepped upon
the track in front of a moving train, in an attempt to cross over a dangerous
and defective roadbed to the other side, must have seen and realized the
imminent peril to which he was exposing himself. He assumed the risk,
and a general demurrer to the petition should have been sustained.7!

Where a defect in an engine is alleged as having been due to the negli-
gence of the defendant, it is therefore unnecessary to aver that the de-
fect had not been discoyered or remedied owing to the negligence of the
defendant. The allegation that the defect was due to the negligence of the
defendant was equivalent, in legal effect, to saying that the defendant had
knowledge of the defect, or failed to use due care to acquire knowledge of
it. So an allegation in that the plaintiff was negligently thrown, or caused
to be thrown, from an engine as a proximate consequence of the negligence
of the defendant by reason of a defect in the said engine, which defect was
due to defendant’s negligence, is a sufficient averment in this particular.7?

Also if it appears, from the several paragraphs of a complaint, that a
hostler moved an engine in violation of a rule whicg required him to ring
the bell before doing so, and at a time when he Rnew, or should have known,

70. Duty mployee and violation
thereof.—Pi rgh, etc, R. Co. w.
Farmers’, et, Sav. Co. (Ind. App.),

67. Same—Effect when followed by
specific charge.—Culp v. Virginian R.
Co. (W. Va.), 87 S. E. 187.

68. Charging negligence in alterna-
tive—Failure to object——Doichinoff v.
Chicago, etc., R. Co. (Mont.), 154 Pac.
924,

69. Showing injury resulting from
one of two causes.—Easter v. Virgin-
ian R. Co. (W. Va.¥, 86 S. E. 37.

108 N. E. 108.

71. Petition held to show assumed
risk.—Charleston, etc, R. Co. v. Syl-
vester (Ga. App.), 86 S. E. 275.

72. Knowledge of defendant.—at-
lantic Coast Line R. Co. v. Jones, 9
Ala. App. 499, 63 So. 693.
285 PLEADING. § 133

that the plaintiff, in the performance of his duties as inspector of the engine,
was expected to do, and by specific direction and long-established custom
frequently did, the work required of him about the engine, when it was in
charge of the hostler, and these averments, when considered with the ones
preceding, sufficiently charging the hostler with actionable negligence, for
which appellees companies must answer, states a cause of action under a
state statute; and also states facts sufficient to show a cause of action under
the federal act.72 Where the different counts in a declaration amounted to
a charge that the defendant was required by its rules to transmit to con-
ductors and engineers orders for the government of their trains, and kept at
stations books called train registers, in which conductors, by requirement
of the defendant, registered the arrival and departure of their respective
trains for the information and instruction of the conductors and engineers
of other trains, thereafter arriving at and departing from such stations, “in
respect to running and operating” their respective trains. The plaintiff and
his conductor on a certain train going north received orders to meet a cer-
tain other train at Roxbury. On their arrival at Roxbury the defendant’s
train register showed that the train to be met had arrived and departed. It
had in fact departed, not by going on, but by going back to Montpelier, and
it was making a second trip over the line from Montpelier to Roxbury. Of
this the plaintiff and his conductor knew nothing, but believed from the in-
formation given in the train register that the train they were to meet had
already gone on, and so they started out from Roxbury towards Montpelier
with the result that a collision occurred with the train, which, having been
registered out of Roxbury, was in fact coming in. Both the orders to the
plaintiff and his conductor, and the entries on the train register by conduc-
tors of other trains, were for the guidance of the plaintiff and his conductor.
The court said: “The negligence charged in two of the counts under con-
sideration is the failure to make and enforce a proper system of rules ap-
plicable to the orders of the plaintiff and his conductor in the situation. The
negligence charged in the other counts is the failure of the defendant to
‘give a plain, safe, and proper order in the particular case. As the situation
is set out, we cannot say, as matter of law, that negligence is not charged
in each and every count,” and that it was the proximate cause of thé in-
jury,74 and a declaration charging a violation of rules is not bad on de-
murrer for a failure to negative certain exceptions contained in the rule.75
Where the case made by the petition was substantially as follows: The
plaintiff was a locomotive fireman on the defendant’s train, which operated
daily between Georgia and South Carolina. At a point in South Carolina

78. Violation of rules by fellow serv- 75. Negativing exceptions in rule.
ant—Taylor v. Southern R. Co. (Ind. —Culp v. Virginian R. Co. (W. Va.),
App.), 101 N. E. 506. 87 S. E. 187.

74. Failure to make and _ enforce
rules—Bouchard 7. Central, etc. R.
Co., 87 Vt. 399, 89 Atl. 475.
§§ 133-134 FEDERAL EMPLOYERS’ LIABILITY ACT. 286

the track was being repaired, and, when the train upon which the plaintiff
was employed approached, one of the track flagmen grabbed a flag of dis-
tress, and in an excited manner ran up the track of the railroad, met the
train, and signaled it to stop; thereupon the engineer, after putting on the
emergency brakes, jumped from the engine, and the plaintiff, seeing that
the rails of the track ahead of the engine were out of line and “buckled,”
and believing that the train would be wrecked and his life be in peril, jumped
from the engine, and in doing so sustained serious injury. It is alleged that
the defendant was negligent in suffering its roadbed to get out of order and
its rails to become “buckled,” and in not placing a danger flag at a sufficient
distance on its line from the place where the track was out of order, after
the “buckled” condition of the track had been discovered, to have notified
the employees on the engine of the danger, and thus have prevented the
application of the emergency brakes and the apparent necessity for the plain-
tiff to jump from the engine. Held, that the petition was not subject to
general demurrer, upon the ground that the negligence complained of was
not the proximate cause of the injury, nor was it essential to allege that the
train actually ran off the track. The plaintiff did not complain of injuries
sustained by reason of a derailment, but complained of injuries resulting
from his fall in consequence of the jump made necessary by an emergency
brought about by the defendant.7¢
, However, should the plaintiff rely upon the violation of an ordinance,
limiting the speed or requiring the ringing of a bell, it should be pleaded.7”
While the direct allegation that the servant whose negligent act is relied
upon was acting within the scope of his employment at the time of the al-
leged negligence is preferable, yet, when the complaint sets forth facts which
admit of no inference other than that he was so acting at the time, the same
end is attained by the pleading, and the defendant is sufficiently informed
of the charge it is required to meet, and sustains no injury by the indirect
allegation.78

§ 134. Aider by Plea or Answer.—If the plaintiff’s complaint does
not show that the negligence was committed by the defendant’s servant
while engaged in the service, the answer of the defendant may ‘be looked to
for the purpose of determining the question, and if it is admitted in the
answer the error is cured.79

The failure of the plaintiff to allege that the parties were engaged in in-
terstate commerce, so as to state a case under the act, may be cured by the
defendant’s pleading the same.8° So where the defendant pleaded as a de-

78. Showing fellow servant within
scope of employment.—Arizona East-
ern R. Co. v. Bryan (Ariz.), 157 Pac.
376, 379.

77. Violation of ordinance as negli-
gence.—Hardwick v. Wabash R. Co.,
181 Mo. App. 156, 168 S. W. 328.

76. Proximate cause of injury—De-

fect in track.—Charleston, etc., R. Co.
v. Brown, 13 Ga. App. 744, 79 S. E.
932.

79. Aider by plea or answer.—Ari-
zona Eastern R. Co. v. Bryan (Ariz.),
157 Pac. 376.

80. Allegations of Interstate Com-
merce. — Tennessee. — Nashville, ' etce.,
287 PLEADING. §§ 134-135
fense that the plaintiff was engaged in interstate commerce at the time he
was injured and that it too was engaged therein and this is admitted by
the plaintiff it would serve as an express aider to a declaration which failed
to allege any interstate facts sufficient to make the federal act applicable.§+
And the failure of the plaintiff to plead that the parties were engaged in
interstate commerce so as to show a cause of action under the act, is cured
by the defendant’s pleading the same by a plea filed seven months after the
accident occurred, so that on the plaintiff's amending his petition alleging
that the parties were engaged in interstate commerce, the defendant could
not contend that the plaintiff’s statement was a change from fact to fact
the statement of a new cause of action barred by the two years’ limitation.S2

To the contention that such a reply admitting the allegations of a plea that’
the parties were engaged in interstate commerce constituted a departure in
White v. Central Vermont R. Co., 87 Vt. 330, 89 Atl. 618,8% the court said:

“But the matter replied by way of departure—if it was a departure, a
question we do not decide—would have been a sufficient answer, in
substance, to the defendant’s plea had the plaintiff pleaded it in the
first instance, and the verdict in favor of the party who made the de-
parture cured the fault. The only mode of taking advantage of a de-
parture is by demurrer, and since the defendant, instead of standing
upon its demurrer took issue upon the replication containing the de-
parture, and it being found against the defendant, the court will not
arrest the judgment, for after such finding it necessarily appears on
the whole record that the plaintiff is in law entitled to judgment.”

§ 135. Negativing Defenses.—Under the rules generally prevailing
in most of the states, the plaintiff in his declaration or complaint need not
negative contributory negligence or assumption of risk.8* But where it is
permissible to join counts at common law with those under the act, and it
is necessary to sustain the common-law action to plead and prove freedom
from contributory negligence, such is sufficiently pleaded when the counts

Railway v. Anderson (Tenn.), 185 S.

W. 677.
Texas—Chicago, etc, R. Co. wu

Cosio (Tex. Civ. App.), 182 S. W. 83.

interstate commerce; but that fact is
set forth in the answer, and the case
was tried under the terms of that stat-
ute. The rights of the parties must

Wisconsin.—Calhoun v. Great North-
ern R. Co. (Wis.), 156 N. W. 198; Cur-
tice v. Chicago, etc., R. Co. (Wis.), 156
N. W. 484.

81. Connecticut.— Vickery v. New
London, ete., R. Co., 87 Conn. 634, 89
Atl. 277.

Tennessee—Nashville, etc., Railway
v. Anderson (Tenn.), 185 S. W. 677.

Vermont—White v. Central Vermont
R. Co., 87 Vt. 330, 89 Atl. 618, affirmed
in 35 S. Ct. 865.

“The plaintiff does not, in her com-
plaint, expressly declare upon the fed-
eral statute known as the ‘Employers’
Liability Act.’ Nor does the complaint
even contain an allegation that Sharp
was engaged in work on a car used in

therefore be determined by the terms
of the federal statute.” St. Louis, etc.,
R. Co. v. Sharp, 115 Ark, 308, 171 S.
W. 95.

82. Nashville, etc., Railway v. Ander-
son (Tenn.), 185 S. W. 677.

83. Affirmed in 238 U. S. 507, 35 S.
Ct. 865, on the ground that this was a
matter affecting the remedy governed
by the law of the forum.

84. Negativing defenses.—Vickery v.
New London, etc., R. Co. 87 Conn.
634, 89 Atl 277; Kenyon vw. Illinois
Cent. R. Co. (Iowa), 155 N. W. 810.

In Indiana it is required of the plain-
tiff that he negative the defense of as-
sumed risk. Cincinnati, etc., R. Co. vw.
Gross (Ind. App.), 111 N. E. 653.
§§ 135-136 FEDERAL EMPLOYERS’ LIABILITY ACT. 288

state that the accident and injuries were “solely on account of the negli-
gence of the defendant in the premises.” §5

§ 136. Joinder of Causes of Action.—In cases of death where the
state statute and the federal act do not provide for the same party to bring
the action 86 a joinder would not be permitted. (But where the plaintiff sues
in the same capacity under either statute, or seeks individually to maintain
his action for injuries, there does not appear to be any sound reason why he
may not set up in his declaration or complaint the same cause of action
under the state law and also under the federal law, stating it separately, of
course, and try it under the law which the proof shows to be applicable.
Where the cause of action is so alleged, the parties would come to trial
prepared to meet the issues which might arise under either aspect of the
case. There is no inherent difficulty in this method of procedure, and it
will greatly facilitate the trial of such cases and promote the ends of jus-
tice. Doubtless in most cases the evidence will clearly settle the question
whether the state or federal law is applicable. But when, under proper
allegations of the complaint or answer, and the evidence adduced, there is
an issue of fact whether the state or federal law is applicable, the case
should be submitted to the jury, under proper instructions as to both aspects
of it, so that the jury may render their verdict under the one or the other,
as they may find the facts.87 Such is the general procedure in actions hav-
ing such a double aspect that they may be regarded either as action at com-
mon law or under a statute. Nor is such procedure obnoxious to any pro-
vision of the federal statute.88 And the right to so frame a complaint or
declaration is generally recognized.8®

85. Same—When joined with com-

Pelton v. Ulinois Cent. R. Co. (Iowa),
mon-law counts.—Bouchard v. Central,

150 N. W. 236.

etc.. R. Co.. 87 Vt. 399. 89 Atl. 475.

86. Joinder of actions.—See ante,
“Parties Entitled to Sue,’ Chap. XIII.

87. Koennecke v. Seaboard, etc., Rail-
way, 101 S. C. 86, 85 S.'E. 374, affirmed
in 239 U. S. 352, 36 S. Ct. 126.

88. United States—Wabash R. Co. v.
Hayes, 234 U. S. 86, 58 L. Ed. 1226, 34
S. Ct. 729.

South Carolina—Koennecke v. Sea-
board, etc., Railway, 101 S. C. 86, 85
S. E. 874. 1

89. United States.—Delaware, etc., R.
Co. v. Yurkonis, 137 C. C. A. 23, 220
Fed. 429, dismissed for want of juris-
diction in 35 S. Ct. 902.

Alabama.—Atlantic Coast Line R.
Co. v. Jones, 9 Ala. App. 499, 63 So.
693; Ex parte Atlantic, etc, R. Co.,
190 Ala. 132, 67 So. 256.

Arkansas.—Midland Valley R. Co. v.
Ennis, 109 Ark. 206, 159 S. W. 214,
Ann. Cas. 1915C, 957.

Iowa.—Armbruster v. Chicago, etc.,
R. Co., 166 Iowa 155, 147 N. W. 337;

New York—Payne v. New York,
etc., R. Co., 201 N. Y. 436, 95 N. E. 19.

Texas.—International, etc., R. Co. v.
Reek (Tex. Civ. App.), 179 S. W. 699;
San- Antonio, etc., R. Co. v. Littleton
(Tex. Civ. App.), 180 S. W. 1194.

Vermont.—Bouchard v. Central, ete.,
R. Co., 87 Vt. 399, 89 Atl. 475.

“The amended complaint was evi-
dently intended to enable the plaintiff
to recover either under the federal
act, or under the Employers’ Liability
Law of Pennsylvania, or under the law
of master and servant at common law,
supplemented as to negligence by the
Pennsylvania Mining Law, according
as the evidence might permit. _ This
was quite proper (Wabash R. Co. vw.
Hayes, 234 U. S. 86, 58 L. Ed. 1226, 34
S. Ct. 729), and is the practice in the
courts of the state of New York
(Payne v. New York, etc., R. Co., 201
N. Y. 436, 95 N. E. 19). The trial
judge was therefore right in submit-
ting the case to the jury, if a cause of
289 PLEADING. § 136

The joinder of such counts does not constitute repugnancy, even though
it is true that the counts are inconsistent in that the federal law is exclusive
to the extent to which it applies, so that, if the plaintiff makes out a case of
liability under that law, there can be no liability under the common-law
counts. But the common-law doctrine of repugnancy relates to inconsistent
matters of substance in the same count or plea. Counts and pleas which
are merely inconsistent are not for that reason repugnant in a legal sense.
Though inconsistent methods of pleading are not to be tolerated, incon-
sistency between pleas is permissible. Inconsistency of statement between
counts is merely the common-law way of providing for the exigencies of
the evidence.

Nor is the joinder objectionable as stating different causes of action.
In Bouchard v. Central, etc., R. Co., 87. Vt. 399, 89 Atl. 475, the court said:

“Tt is the policy of the law to permit and encourage the joinder of causes
of action that are of the same nature and are to be pursued in the same
form of action. * * * And it is not now considered material, if
other conditions are met, that a statutory cause of action is joined with
one at common law. * * * The tradition, sometimes called a prin-
ciple, that a common-law cause of action cannot be joined with one
given by statute seems in the remote analysis to have no better support
than a case, reported anonymously in Jenkins Centuries, which goes
only to the extent of holding that where the two actions are different
in nature and form, as an action of trespass on a statute and an action
of detinue at common law, they cannot be joined. Jenk. Cent. Case, 46,
p. 211.”

As just stated the actions are to be separated in distinct counts, and
where a petition discloses a cause of action under the Federal Act and one
under a state law all in a single count a “motion to require the plaintiff to
separate and divide the causes of action alleged in the single count of her
petition into separate and distinct counts is therefore sustained, and the
plaintiff will be required to amend her petition, and so state the facts con-
stituting such causes of action in separate counts of the petition within
five days.” 92

action was developed under either.”

i 92. Requiring statement in separate
Delaware, etc., R. Co. v. Yurkonis, 137

counts.—Bankson wv. Illinois Cent. R.

C. C. A. 23, 220 Fed. 429, 433, dismissed
for want of jurisdiction in 35 S. Ct. 902.

In Chesapeake, etc., R. Co. v. Carna-
han (Va.), 86 S. ‘E. 863, error was as-
signed to the overruling of a demurrer
to a declaration which in separate
counts stated a cause of action under
the federal and state law, but on ap-
peal the assignment was waived.

90. Not objectionable as repugnant.
—Bouchard v. Central, etc., R. Co., 87
Vt. 399, 89 Atl. 475.

91. As stating different causes of ac-
tion Bouchard v. Central, etc., R. Co.,
87 Vt. 399, 89 Atl. 475.

Fed Act—19

Co. (D. C.), 196 Fed. 171.

“The facts, somewhat loosely al-
leged, are of such character that the
deceased may have lost his life while
he was engaged as an employee of the
defendant in interstate commerce be-
tween the states of Illinois and Iowa;
or, if not so engaged, that he might
be entitled to recover against the de-
fendant under the general law of neg-
ligence, operative both in the states of
Illinois and Iowa. Two causes of ac-
tion are therefore attempted to be al-
leged in the petition; and under such
circumstances it is the duty ot the
§§ 136-137 FEDERAL EMPLOYERS LIABILITY ACT. 290

Also each count should be so drawn that the courts may be able to deter-
mine under which of the two enactments, state or federal, the respective
counts are intended to assert a claim for liability. The sufficiency vel non
of counts under state statute necessarily involve questions 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 enact-
ment forbid matters of defense admissible in an action under the state
statute.98

Should the joinder by the plaintiff of different causes of action be con-
sidered improper, it is the duty of the defendant to object and except
thereto; and if not done, the right to join the actions will not be considered
on appeal.94

§ 137. Amendment of Declaration or Complaint.—The power which
lies in the discretion of the trial court to permit an amendment to the com-
plaint or declaration which in no way prejudices the rights of the defendant
cannot be questioned.95 And an amendment of a complaint in a minor
particular, and where the same evidence was admissible without amendment
is not prejudicial to the defendant.% So if a plaintiff states a cause of, ac-
tion under the state and federal law all in one count, a motion to separate
the actions under distinct counts is proper, and plaintiff will be required to
amend in conformity to the motion.97

As previously seen the act need not be pleaded or the interstate character
of the employee or employer alleged, if the facts are stated. The rule de-
ducible from the cases would seem to be that while a plaintiff is not per-
mitted to change the allegations of his petition from one state of facts to
another, as this constitutes a departure; yet if the original pleadings set up
facts the conclusion from which show interstate commerce, he will be per-
mitted to amend so as to specifically allege the same. Also if the facts
when not showing whether the commerce is inter or intrastate, do show
that the plaintiff was in the employ of a railroad and that he was injured
while so employed, any amendment to show the railroad engaged in inter-

plaintiff to distinctly allege in sepa- As to right of administrator to

rate counts of the petition the facts
upon which she relies as constituting
these different causes of action, and
she is not permitted to allege them in
a single count thereof. Code of Iowa
(1897) §§ 3545-3559.” Bankson v. Illi-
nois Cent. R. Co. (D. C.), 196 Fed. 171.

93. Certainty of each count.—Ex
parte Atlantic, etc. R. Co. 190 Ala.
132, 67 So. 256, 257. :

94. Exception to have review on ap-
peal—Atlantic Coast Line R. Co. wv
Tones, 9 Ala. App. 499, 63 So. 693.

95. Amendment of declaration or
complaint—As to amendment so as
to change the capacity in which the
plaintiff sues, see ante, ‘Amendment of
Declaration or Complaint,” § 82.

change action on death of employee
after period of limitations, see ante,
“Institution of Suit by Employee—Ef-
fect on Action for Death,” § 102.

As to amending so as to conform to
proof, see post, “Amendment to Con-
form to Proof,” § 166.

As being question of state procedure,
see “State Rules Governing,” § 123;
“Substantive Rights Not to Be De-
feated,” § 124.

96. Doichinoff v. Chicago, etc. R.
Co. (Mont.), 154 Pac. 924.

97. Requiring statement in separate
counts.—Bankson v. Illinois Cent. R.
Co. (D. C.), 196 Fed. 171.
291 § 137

PLEADING.

state commerce, and that the plaintiff was employed therein, is simply an
enlargement on the original facts pleaded and is permissible.®®

Thus a complaint which alleges facts showing the defendant to be an
interstate road, and that the plaintiff was employed by it as a bridge car-
penter and was engaged in work on a trestle used in interstate commerce, is
sufficient to base an action under the act without an amendment, specially
when the answer specifically alleged the interstate employment of the plain-
tiff, 8° because an amendment may be accomplished by aider from the an-
swer as well as express permission of the court... And where a complaint
was held to state'a cause of action in interstate commerce, and an amend-
ment was asked so as to specially bring the action under the federal act,
holding that it should have been granted, in Vickery v. New London, etc., R.
Co., 87 Conn. 634, 89 Atl. 277, 279, the court said:

“The worst that can be said of the complaint from the defendant’s pres-
ent standpoint is that it contains no allegations showing that it was
brought under the federal statute. Assuming against the plaintiff's con-
tention that such allegations form a part of the statement of a cause of
action, the fault with the complaint is that it contains a defective state-
ment of a good cause of action and not the statement of a defective
cause of action. The distinction is important, and is attended with
important consequences. Where a complaint contains a defective
statement of a cause of action, that statement may be perfected later
by amendment, but the statement of a defective cause of action is not
the statement of any cause of action at all; and any process which will
result in the statement of a good cause of action necessarily involves
the introduction of a new cause of action. The perfection of a com-
plaint of the former type, although defective in substance, by the pro-
cess of amendment supplying material matter omitted from it, does not

98. Rule as to amendment.—United
States.— Seaboard, etc., Railway v.
Renn (U. S.), 36 S. Ct. 567; Missouri,

South Carolina—Camp v. Atlanta,
etc., R. Co., 100 S. C. 294, 84 S. E. 825.
99. Necessity for amendment—Aider

etc., R. Co. v. Wulf, 226 U. S. 570, 57
L. Ed. 355, 33 S. Ct. 135, Ann. Cas.
1914B, 134; Smith v. Atlantic Coast
Line R. Co., 127 C. C. A. 311, 210 Fed.
761, Ann. Cas. 1916A, 940.
Connecticut—Vickery v. New. Lon-
don, etc., R. Co., 87 Conn. 634, 89 Atl.
eas
Georgia—Gainesville Mid. Railway
v. Vandiver, 141 Ga. 350, 80 S. E. 997.
Kentucky.—Cincinnati, etc., R. Co. v.
Goode, 163 Ky. 60, 173 S. W. 329.

Michigan.—Fernette v. Pere Mar-
quette R. Co., 175 Mich. 653, 141 N.
W. 1084, 144 N. W. 834; Jorgenson v.
Grand Rapids, etc., R. Co. (Mich.), 155
N. W. 535.

Minnesota—Ahrens v. Chicago, etc.,
R. Co., 121 Minn. 335, 141 N. W. 297.

Pennsylvania—Hogarty v. Philadel-
phia, etc., R. Co., 245 Pa. 443, 91 Atl.
854,

by answer.—Camp v. Atlanta, etc., R.
Co., 100 S. C. 294, 84 S. E. 825.

“There is another feature of this
case which is worthy of notice. When
the defendant answered the original
complaint it set up the facts which
were omitted in the plaintiff's defective
complaint and necessary to perfect ‘the
cause of action under the federal act,
and which were afterwards set up by
plaintiff in the amendment complained
of. The defendant was therefore in no
way surprised or prejudiced by the
amendment. Doubtless the case could
have gone to trial on the pleadings as
originally framed, and the complaint
on the trial amended or treated as
amended in accordance with the issues
made by the pleadings as originally
framed.” Curtice v. Chicago, etc, R
Co. (Wis.), 156 N. W. 484, 486.

1. Vickery v. New London, etc. R.
Co., 87 Conn. 634, 89 Atl. 277.
§ 137 FEDERAL EMPLOYERS’ LIABILITY ACT. 292

accomplish a change of the cause of action. ‘The rounding out of a
complaint to cure a defective complaint, even in material matters, is not
changing a cause of action nor adding a new cause, but merely making
a good cause out of that which was a defective statement of a cause of
action because of the omission of ‘“‘material allegations.” ’ Lassiter v.
Norfolk, etc., R. Co., 136 N. C. 89, 92, 48 S. E. 642, 1 Am. & Eng. Ann.
Cas. 456.”

To the contention that an amendment which only added to the declara-
tion the fact that the plaintiff came from beyond the state, should not have
been permitted, for the reason that it gave the state court jurisdiction that
otherwise it would not have had, in Kansas, etc., R. Co. v. McAdow, 240 U.
S. 51, 36 S. Ct. 252, 253, the court said:

“The amendment introduced no fact inconsistent with those first alleged,
and it was unnecessary when the facts were stated to invoke the act
of congress in terms. ‘The law governing the situation is equally the
Jaw of the state, whether derived from congress or the state legislature,
and must be noticed by the courts.”

In cases of this character as it is not the bringing of a new cause of ac-
tion, the amendment would relate to the time of the filing of the petition,
and an action would not be barred under the statute of limitations where
it was not barred at the institution of the suit.2 So where in fact, the orig-
inal 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 proceeded to judgment in that way; an
amended petition which merely reiterates 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, the trial court did not
err in ignoring the plea of limitation.? And where the original complaint
set out facts showing that the plaintiff was an employee of the defendant;
that while acting as yard conductor, under orders of a superior, he was
endeavoring to make a coupling of two freight cars, the coupler of one
being “out of order;” and that while so doing he was injured; may be

2. As barred by limitations.—United
States——Seaboard, etc., Railway v. Renn
(U. S.), 36 S. Ct. 567; Smith v. Atlan-
tic Coast Line R. Co., 127 C. C. A.
311, 210 Fed. 761, Ann. Cas. 1916A, 940.

Georgia.—Gainesville Mid. Railway v.
Vandiver, 141 Ga. 350, 80 S. E. 997.

Kentucky.—Cincinnati, etc., R. Co. v.
Goode, 163 Ky. 60, 173 S. W. 329; Balti-
more, etc., R. Co. v. Smith (Ky. App.),
184 S. W. 1108, 1115.

Michigan—Jorgenson v. Grand Rap-
ids, etc., R. Co. (Mich.), 155 N. W.
535.

North Carolina—Renn v. Seaboard
Air Line Railway (N. C.), 86 S. E.
964, affirmed in 36 S. Ct. 567.

Tennessee-—Nashville, etc. Railway
wv. Anderson (Tenn.), 185 S. W. 677.

“Tf the amendment merely expanded
or amplifed what was alleged in support
ot the cause of action already asserted,
it related back to the commencement
of the action, and was not affected by
the intervening lapse of time. * * *
But if it introduced a new or different
cause of action, it was the equivalent
of a new suit, as to which the running
of the limitation was not theretofore
arrested.” Seaboard, etc., Railway v.
Renn (U. S.), 36 S. Ct. 567, 568.

8. Same—Amendments held not to
state new action.—Cincinnati, etc., R.
Co. v. Goode, 163 Ky. 60, 173 S. W.
329,
293 PLEADING. § 137

amended so as to show the interstate character of the defendant’s business
and of the train upon which he was employed when he sustained the in-
jury. And such an amendment is not the statement of a new cause of ac-
tion, to which the defendant may plead the two years limitation of the act.+

In passing on such a case the United States Supreme Court.in Seaboard,
etc., Railway v. Renn (U. S.), 36S. Ct. 567, 568, said:

“The original complaint set forth that the defendant was operating a line
of railroad in Virginia, North Carolina, and elsewhere; that the plain-
tiff was in its employ; that when he was injured he was in the line of
duty and was proceeding to get aboard one of the defendant’s trains,
and that the injury was sustained at Cochran, Virginia, through the
defendant’s negligence in permitting a part of its right of way
at that place to get and remain in a dangerous condition. Of
course, the right of action could not arise under the laws of North
Carolina when the causal negligence and the injury occurred in Vir-
ginia; and the absence of any mention of the laws of the latter state
was at least consistent with their inapplicability. Besides, the allega-
tion that the defendant was operating a railroad in states other than
Virginia was superfluous if the right of action arose under the laws of
that state, and was pertinent only if it arose in interstate commerce,
and therefore under the act of congress. In these circumstances, while
the question is not free from difficulty, we cannot say that the court
erred in treating the original complaint as pointing, although only im-
perfectly, to a cause of action under the law of congress. And this
being so, it must be taken that the amendment merely expanded or
amplified what was alleged in support of that cause of action, and re-
lated back to the commencement of the suit, which was before the limi-
tation had expired.”

On the other hand where the declaration, as originally prepared and filed
and upon which a trial was had, disclosed no fact that in any way suggested
the plaintiff's decedent had been killed, while engaged in interstate com-
merce; but upon a second trial where the defendant introduced evidence
that the parties were engaged in interstate commerce so as to defeat the ac-
tion as brought, the plaintiff was not entitled to amend so as to state a case
within the act as this was in effect a new action subject to the two years’ limi-
tation which had then expired.® In three cases, originally brought under the
state law, an amendment has been permitted after the limitation had so ex-
pired, as to state that the parties were engaged in interstate commerce, not-
withstanding the fact that there was no statement in the original pleadings
to indicate that they were so engaged, though there was nothing inconsistent
therewith These cases are doubtful for the reason that the United States

4, Smith v. Atlantic Coast Line R. 6. Same—Doubtful holdings.—Georgia.
Co., 127 C. C. A. 311, 210 Fed. 761, Ann. —Gainesville Mid. Railway v. Van-
Cas. i916A, 940. diver, 141 Ga. 350, 80 S. E. 997.

5. Same—Amendment held to state lowa.—Basham v. Chicago, etc. R.
new action.—Findley v. Coal, etc, R. Co. (Iowa), 157 N. W. 192, 194.

Co. (W. Va.), 87 S. E. 198. Wisconsin.—Curtice v. Chicago, etc.,

R. Co. (Wis.), 156 N. W. 484.
294

§ 137 FEDERAL EMPLOYERS LIABILITY ACT.

Supreme Court in passing on this question has examined the pleadings in
detail, and it is not sufficient that the declaration or complaint should simply
be not inconsistent with, but it should contain some allegation necessary to,
an action under the act, or allegations inconsistent with an action under the
state law.7

An amendment to a petition by adding an allegation that the deceased left
a dependent wife who suffered pecuniary injury by his death and that the
action was being prosecuted for her benefit, so as to bring an action under
the federal act is not the bringing of a new action barred by the two years’
limitations, where “the suit was originally brought and has ever since been
maintained by the administrator, who is the proper person to prosecute it,
whether it be maintainable under the law of the state or under the Federal
Employers’ Liability Act. The cause of action in either case is the death of
Spellman, occasioned by the alleged negligence of the defendant. In other
words, whether the action be brought in one form or the other, it is by the
same party, against the same party, in the same court, for damages for the
same alleged wrong; the sole distinction being in the measure of damages
to be recovered and the person or beneficiary to whom the plaintiff must ac-
count for the damages, if any, which he collects.” §

It has been held that where the plaintiff at the close of his own case so
amended his complaint, which stated in a single count a cause of action
under the state law, as to make it state a cause of action under the federal
act, he thereby elected to abandon his cause of action under the state law
and to insist upon a recovery under the federal act, and the evidence show-
ing the state law applicable, a directed verdict for the defendant was proper.
Though had the actions been properly pleaded in separate counts, and no
election made, the court intimates that such may not have been proper.®

However, where the case was tried below upon the theory that the com-
mon law governed the case, the plaintiff will not on appeal be permitted to
amend his declaration to show a cause of action under the federal act so as
to uphold his judgment.1° But on remand, it seems that the pleadings may
Le amended so as to state an action under the proper law.1!_ The contrary

7. See Missouri, etc., R. Co. v. Wulf, 11. Amendment on remand.—Mid-

226 U. S. 570, 57 L. Ed. 355, 33 S. Ct.
135, Ann. Cas. 1914B, 134; Seaboard,
etc., Railway v. Renn (U. S.), 36 S. Ct.
567.

8. Amendment showing existence
of beneficiary.— Basham v. Chicago,
etc, R. Co. (Iowa), 157 N. W. 192,
193. Withdrawing former opinion in
154 N. W. 1019.

9. Amendment as election and aban-
donment of claim under state law.—
Bravis v. Chicago, etc., R. Co., 133 C.
C. A. 228, 217 Fed. 234, 236.

10. Amendment on _  appeal.—Car-
penter v. Central Vermont R. Co.
(Vt.), 96 Atl. 373.

land Valley R. Co. v. Ennis, 109 Ark.
206, 159 S. W. 214. See St. Louis, etc.,
R. Co. v. Seale, 229 U. S. 156, 57 L.
Ed. 1129, 33 S. Ct. 651, Ann. Cas. 1914C,
156.

Under Kirby’s Digest (Ark.), § 6145,
“the court may, in its discretion, before
the commencement of the trial, allow
a complaint to be amended so as to
change the cause of action to another
one which might have been joined in
the same action, and at any time dur-
ing the progress of the trial may per-
mit an amendment which does not
change substantially the claim, so as
to conform to the facts proved. The
295 PLEADING. §§ 137-138

holding in Moliter v. Wabash R. Co.,1? was subsequently declared, by the
state supreme court probably an inadvertence and not to be followed.1%

Where the plaintiff in his original petition claimed a recovery under the
common law, but afterwards filed an amended petition, in which he alleged
the cause of action accrued under a state statute, other than that of the
forum, to which the defendant objected on the ground of departure; but
before a ruling was had the plaintiff filed a second amended petition claim-
ing a recovery under the federal act; the defendant again objected, on
the ground of departure from the original and first amended petition, which
being overruled and an exception taken, he answered to the last amended
petition: it was held that even conceding the departure as claimed, the de-
fendant, by answering to the merits of the action finally pleaded and going
to trial thereon, waived the objection to the amendments as made.4

§§ 138-141. Plea or Answer—§ 138. Necessity of Defendant
Pleading Act’ as Defense.1®—It has been held that where, in an action in
a state court, the plaintiff sets forth a state of facts showing that he is en-
titled to recover under the state law, the defendant seeking to invoke the
federal statute to defeat the plaintiff’s right to recover in accordance with
the state law, must plead the same.16 In Pelton v. Illinois Cent. R. Co.
(Iowa), 150 N. W. 236, 243, the court said:

“In view of the anomalous situation created by the existence of two lines

of remedy emanating from different legislative jurisdictions, the one
necessarily exclusive of the other, both administered by the same court,
and the respective applicability of the one or the other being determined
solely by the relation or want of relation of the parties to interstate
commerce, it is manifestly desirable that such anomaly should not be

_ only limitation in the statute is that,
after the proof is introduced, the plead-
ings can not be amended so as to sub-
stantially change the cause of action.
* * * On the remand of the cause
the appellee can if so advised, amend
the pleadings so as to state a cause of
action based upon intrastate service
of the deceased, and thus make out a
right of action under the state law.”
Midland Valley R. Co. v. Ennis, 109
Ark. 206, 159 S. W. 214.

12. 180 Mo. App. 84, 168 S. W. 250.

13. Sells v. Atchison, etc., R. Co.
(Mo.), 181 S. W. 106.

14, Waiver by answer and trial.— Mc-
Adow v. Kansas, etc, R. Co. (Mo.
App.), 164 S. W. 188, affirmed in 36 S.
Ct. 252.

15. As to necessity to plead limita-
tions, see ante, “Limitation of Right,
Not Remedy,” § 103.

16. Necessity for defendant’s plead-
ing federal act.—United States.—Illi-
nois Cent. R. Co. v. Nelson, 128 C. C.
A. 525, 212 Fed. 69.

Iowa.—Bradbury 7. Chicago, etc., R.
Co., 149 Iowa 51, 128 N. W. 1, 40 L.
R. A., N. S., 684; Pelton v. Illinois
Cent. R. Co. (Iowa), 150 N. W. 236.

New York.—Bitondo v. New York,
etc., R. Co., 163 App. Div. 823, 149 N.
Y. S. 339; Rogers v. New York, etc.,
R. Co. (App. Div.), 157 N. Y. S. 83.

North Carolina.—Ingle v, Southern R.
Co., 167 N. C. 636, 83 S. E. 744.

Ohio.—Erie R. Co. v. Welsh, 89 O.
St. 81, 105 N. E. 189.

Oklahoma—Chicago, etc. R. Co. v.
McBee (Okla.), 145 Pac. 331.

Texas—St. Louis, ete, R. Co. wv.
Seale (Tex. Civ. App.), 148 S. W. 1099,
reversed on the facts and on the issue
as to whether or not the defendant’s
objection that the action was con-
trolled by the federal act was offered

“in time, in 229 U. S. 156, 57 L. Ed.

1129, 33 S. Ct. 651.

As to requiring plaintiff to make
complaint certain, see ante, “Certainty
of Allegation,” § 132.
§ 138

FEDERAL EMPLOYERS’ LIABILITY ACT.

296

made a mere pitfall, and that it should not become an undue obstacle to
the prosecution of a cause of action on its larger merits. If, after a trial on
the general merits, plaintiff's case must fail on that one question, it
ought to be so only when the parties have made a definite issue

thereon.”

It is, of course, not necessary that the defendant should plead the terms
and provisions of the federal act. It is only necessary that it plead the facts

that show that the federal act, and not the state law, applies.

This tenders

an issue of fact, which, if denied by the reply, must be determined as any

other issue of fact in the case.!7

Should the action be framed under one

law, either state or federal, to the exclusion of the other, a general denial is
not sufficient to raise the issue of liability under the law excluded.1§

17. Sufficiency of plea—Erie R. Co. @ such case, a general denial by defend-

v. Welsh, 89 O. St. 81, 105 N. E. 189.

18. Same— General denial.—Louis-
ville, etc., R. Co. wv. Barrett, 143 Ga.
742, 85 S. E. 923; Pelton 7. Illinois
Cent. R. Co. (Iowa), 150 N. W. 236.

Where a widow institutes an action
against a railroad company for the
homicide of her husband, and the pe-
tition alleges facts sufficient to show
a cause of action under the state law,
and makes no reference to any engage-
ment of the deceased person in inter-
state commerce, and the defendant
files an answer which merely denies
“as untrue” the several paragraphs of
the petition, such denial does not ex-
tend beyond a denial of the facts spe-
cifically alleged, and where in such an
action the defendant desires to defeat
the widow’s right to sue, by proof of
facts tending to showing that at the
time of the catastrophe her husband
was engaged in interstate commerce
under his employment by the defend-
ant, it is incumbent upon the defend-
ant to specifically plead such new facts.
Louisville, etc., R. Co. v. Barrett, 143
Ga. 742, 85 S. E. 923.

A general denial does not put in is-
sue the question of interstate com-
merce. “The right of plaintiff to bring
his action under the federal act was
not challenged in the answer. Plain-
tiff alleged that his injury occurred
while he was in defendant’s employ and
engaged in interstate commerce. No
issue was made by defendant on this
allegation, unless it was made by the
general denial. We think that under
our rules of pleading, and particularly
under Code, §§ 3627, 3628, a mere de-
nial was not sufficient to put such al-
legation in issue. * * * Tf the plain-
tiff had failed to aver that he was en-
gaged in interstate commerce at the
time of his injury, his petition would
still disclose a complete cause of ac-
tion under the law of this state. In

3

Want would neither make nor tender an
-issue as to whether the parties were

engaged in interstate commerce at the
time of the injury. Bradbury v. Chi-
cago, etc., R. Co., 149 Jowa 51, 128 N.
W. 1, 40 L. R. A, N.S. 684. Such
question could only be raised by an af-
firmative pleading. * * * If the de-
fendant desires to make issue on such
question, it should be done unequivo-
cally. He should not be permitted to
spread the net of a mere general de-
nial, so as to hold in reserve the ques-
tion of abatement, and in that manner
to render it equally available in a sec-
ond action as in the first. Under cover
of such a method of pleading, the de-
fendant might abate both actions suc-
cessively, the first through plaintiff's
failure of proof of the interstate char-
acter of the commerce, and the second
through defendant’s conclusive proof
of such character. A method of plead-
ing which would permit such mobility
to an abatement defense carries its
own condemnation.” Pelton wv. IIli-
nois Cent. R. Co. (Iowa), 150 N. W.
236.

In Missouri it is held that a general
denial under the statutes of that state
puts in issue the facts pleaded in the
petition, not the liability. So that
where the plaintiff alleged that the de-
fendant was engaged in _ intrastate
commerce, there was no other mode or
manner by which the fact of whether
or not it was so engaged could be as
clearly and pointedly put in issue as
by a general denial. Sells v. Atchison,
etc, R. Co. (Mo.), 181 S. W. 106.

In Kansas, it is held that even if the
defendant failed to plead the federal
act, under a general denial it could
show that whatever liability might ex-
ist the widow could not maintain the
action. Giersch v. Atchison, etc. R.
Co. (Kan.), 158 Pac. 54.
297 PLEADING. § 138

Moreover, it is indispensable to a plea that the action arose under the
federal law that the defendant should aver that the plaintiff and his em-
ployer were each engaged in interstate commerce at the time of the acci-
dent.1® And where under the rules of practice material allegations of the
complaint are taken as true when not denied by the answer, 2° and a com-
plaint in an action against a railroad company for damages arising from a
personal injury negligently inflicted on an employee alleges that the injury
incurred on a train over the defendant’s road running wholly within the
state, so that it appears that the train was an intrastate train, defendant
cannot defend on the ground that the train was an interstate one, in the
absence of a denial of the allegation in its answer.?1

There is nothing unreasonable in the requirement that a defendant pro-
posing to defend upon the ground that the action is controlled by the federal
act shall either plead the same or interpose it by proper objections. The
important question is as to the time in which such plea must be tendered or
objection raised. In the Bradbury Case, cited in the notes, it was held not
to be an abuse of discretion to sustain a motion to strike an amendment to
the answer, filed after all the evidence was adduced, raising the issue that
plaintiff’s injury was received while employed on a train engaged in inter-
state commerce.?2. And in a Georgia case in which the plaintiff specifically
based his action upon the Alabama statute, it otherwise appearing from
the petition, and afterwards from the evidence, that the case arose in in-
terstate commerce and was controlled by the federal act, it was held that an
amendment to the answer setting up that fact was in the nature of a plea
in abatement and came too late because not filed at the appearance term.2®
The error, if any, in the ruling in that case was harmless, however, since it
further appears that the court discarded all references in the petition to
the Alabama statute and tried the case under, and gave judgment in ac-
cordance with, the federal act.2*+ In St. Louis, etc., R. Co. v. Seale, 25 it
was contended that by not interposing a plea in abatement, the defendant
waived its right to object that the plaintiff was not the personal representa-
tive of the deceased, and that the state statute authorized a recovery by the
plaintiff on the case stated in their petition and as the federal act was not
pleaded as a defense it could not be invoked to defeat a recovery. How-
ever, the defendant had, by its special exceptions, called attention to the
Federal statute, and suggested that the state statute might not be the appli-
cable one. But the plaintiffs, with the sanction of the court, stood by their

19. Same—To show other law appli- R. Co., 149 Iowa 51, 128 N. W. 1, 40
cable.—Illinois Cent. R. Co. v. Nelson, L. R. A., N. S., 684.

128 C. C. A. 525, 212 Fed. 69. 28. Sontrern R Co. 7. Ansley, 8 Ga.
20. Failure to deny by answer, as ad- App. 325, 68 S. E. 1086, 1089.

mission.—(N. C.), Revisal, § 503. 24. Southern R. Co. v. Ansley, 8 Ga.
21. Fleming v. Norfolk, etc, R. Co, App. 325, 68 S. E. 1086. :

160 N. C. 196, 76 S. E. 212. 25. Rule in Seale Case.—229 U. S.

22. Time of interposing plea or ob- 156, 57 L. Ed. 1129, 33 S. Ct. 651, Ann.
jection that case is controlled by fed- Cas. 1914C, 156, reversing 148 S. W.
eral act.—Bradbury wv. Chicago, etc. 1099.
298

§§ 138-139 FEDERAL EMPLOYERS LIABILITY ACT.

It was to the case therein stated that.the defendant was called
upon to make defense. A plea in abatement would have been unavailing,
because the plaintiffs were the proper parties to prosecute that case. When
the evidence was adduced 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 recover on the case proved. It was held
that the objection was interposed in due time and that the state courts erred
in overruling it.

Upon familiar principles, the decision of five supreme court in the Seale
Case is not only clearly right, but, the court might very properly have gone
further and held that such objection may be raised for the first time at any
stage of the proceedings, and that the Georgia decision and other cases
holding such objection to be in the nature of a dilatory plea, which must be
plead in order, are erroneous, for the simple reason that the controlling ef-
fect of the federal act, operating, when it applies at all, to supersede the
state law, as regards that case, as effectively as though the latter had never
been enacted, renders the question jurisdictional, with the consequent right
of the defendant to raise it at any stage of the proceeding. And such, in
effect, has been the ruling of one of the Texas courts of civil appeal in a
case wherein it was held that the defendant does not waive its right to in-
sist that the action was maintainable only by the personal representative,
because it first answered to the merits and subsequently set up the same by
amendment. For the reason that after the federal enactment upon the sub-
ject no right of action whatever in this character of cases could have been
based upon state statutes or the common law liability. This being true,
the right of action is wholly and entirely dependent upon the statute itself,
the liability under which was given to the personal representative of the de-
ceased, and not to the beneficiaries; from which ‘it followed that no one,
except the representative, could maintain the suit.26 And it is also held that
the defendant sufficiently challenges the right of the plaintiff to recover un-
der the law stated by a motion for a directed verdict.27

petition.

§ 139. Pleading Assumed Risk and Contributory Negligence.—
When the defendant by plea or answer sets up assumed risk or contributory
negligence, it does not thereby admit that the cause of action arose wholly
under a state law. Because, under the federal act, contributory negligence
and assumption of risk are not taken entirely out of the case, except where

26. Same—Plea of statute held not
waived by first answering to merits.—
Gulf, etc., R. Co. v. Lester (Tex. Civ.
App.), 149 S. W. 841.

See Sells v. Atchison, etc. R. Co.
(Mo.), 181 S. W. 106, where it is said
that the failure of the petition to show
a cause of action may be taken ad-

vantage of by demurrer or objection
to the introduction of testimony or any
appropriate plea filed, at any time, in
any court, in which the case may be
pending and being heard.

27. Same—By motion for directed
verdict.—Cincinnati, etc, R. Co. wv.
Tucker (Ky. App.), 181 S. W. 940.
299 PLEADING. § 139

the violation of a statute enacted for the safety of employees caused or con-
tributed to the death, and are a defense to specifications of negligence in a
Petition not based on the violation of a statute.28 Moreover, as pointed out
by the court, the plaintiff, not the defendant, had the election how the suit
should be brought, and as he relied upon the state law, the defendant had
no choice, if it was to defend upon the facts.29

Whether the defendant is required to plead contributory negligence is a
.question depending entirely upon the local rules of pleading. Even in the
states where it is required to be pleaded as a defense, in actions under this
act as it is not a complete defense, such a plea is bad on demurrer.?° But
to diminish the damages it may be necessary to plead contributory negli-
gence,31 but other jurisdictions hold in such cases that contributory negli-
gence may be shown without pleading it, on the theory that any facts not
alleged by the defendant may be proven to show less damages than are
claimed by the plaintiff.22 But if the defendant wishes to show that the
plaintiff’s negligence was the sole cause of his injury, and that it was in no
way produced through the negligence of the defendant this defense is avail-

able under the general issue.?#

28. Estoppel to rely upon federal act
by reason of plea of contributory neg-
ligence—St. Louis, etc, R. Co. v.
Hesterly, 228 U. S. 702, 57 L. Ed. 1031,
33 S. Ct. 703; Vaughan v. St. Louis,
etc, R. Co., 177 Mo. App. 155, 164 S.
W. 144; Sells v. Atchison, etc., R. Co.
(Mo.), 181 S. W. 106.

29. St. Louis, etc., R. Co. v. Hesterly,
228 U. S. 702, 57 L. Ed. 1031, 33 S. Ct.
703. *

30. Pleading contributory negligence
—When plea bad on demurrer.—South-
ern R. Co. v. Peters (Ala.), 69 So. 611.

31. Same—Necessity to plead in miti-
gation of damages.—Sells 7. Atchison,
etc, R. Co. (Mo.), 181 S. W. 106;
Fleming v. Norfolk, etc., R. Co., 160
N. C. 196, 76 S. E. 212.

“Our state statute on this subject
(Revisal, § 483) provides that ‘in all
actions to recover damages by reason
of a defendant’s negligence, when con-
tributory negligence is relied on as a
defense, it shall be set up in the an-
swer and proved at the trial.’ While
matter in diminution of damages is not
ordinarily required to be specially
pleaded except in cases of libel and
slander (Revisal, § 502), but the same
may be made available under the gen-
eral issue, in view of the provision of
the Federal statute that the fact of
contributory negligence should be in
some way established, and that the
procedure for that purpose has been
defined and approved under numerous

decisions of our court, construing the
state statute controlling the question,
we deem it proper to hold that in or-
der to establish this fact of contribu-
tory negligence, as referred to in the
federal statute, it should be considered
and treated as a partial defense, com-
ing within the terms of the local law,
and to make same available, it must be
set up in the answer and proved as the
state statute requires.” Fleming wv.
Norfolk, etc., R. Co., 160 N. C. 196, 204,
76S. E. 212.

32. Jones v. Kansas, etc., R. Co., 137
La. 178, 68 So. 401.

While it is true that this case was
reversed by the United States Supreme
Court in Kansas, etc., R. Co. v. Jones
(U. S.), 36 S. Ct. 513, this does not de-
tract from the holding of the lower
court which recognized the right of
the defendant to show the negligence
of the plaintiff under its general denial,
but held that the trial court properly
excluded the evidence because it was
not stated to have been offered for the
special purpose of mitigating damages.
The case was reversed for the reason
that the defendant was deprived of a
defense which under the pleadings it
was entitled and there was no settled
local rule requiring counsel, without in-
quiry by the court, to announce in ad-
vance the purpose for which evidence
1s tendered.

33. Negligence of plaintiff as sole
cause of injury.—Southern R. Co. v.
Peters (Ala.), 69 So. 611, 613.
§§ 139-141 FEDERAL EMPLOYERS LIABILITY ACT. 300

It is generally held that assumed risk must be pleaded.?4 In a case under
the act before the circuit court on appeal from the Southern District of New
York,35 it held that the question is controlled by the rules which obtain in
the state in which the action is tried. However, it was necessary to observe
that a difference exists between the assumption of the “ordinary” risks of
the employment and the assumption of “extraordinary” risks. If the risk
is of the former kind, it is not incumbent on the defendant to plead it; but,
if the risk is of the latter kind, the rule in some jurisdictions is that, if the
defendant desires to rely upon it as a defense, he must specially plead it.

An answer which avers the promulgation of rules and their violation by an
employee does not set up assumption of risk, but contributory negligence ; *°
and a plea which charged assumption of risk but alleged in the alternative
that an employee knew of a defect or negligently failed to discover the same,
is bad on demurrer, as it was as much a plea of contributory negligence as
one of assumed risk.37 Should the evidence given by the plaintiff tend to
prove assumption of risk, it is available to the defendant though not
pleaded.88

§ 140. Plea to Venue, Where Action Brought in Federal Court.—
Where the complaint in an action brought in a federal court does not specifi-
cally base the action upon either the state or federal statute, an objection
that the action is brought in the wrong venue is waived if not urged at the
proper time.®®

§ 141. Lis Pendens.—The federal act being exclusive where appli-
cable, an answer which alleges a pending action under a state law, states no
defense, and it is proper to strike on motion the allegations covering this
defense.?°

34. Pleading assumed risk.—United
States—New York, etc., R. Co. 7. Viz-
vari, 126 C. C. A. 632, 210 Fed. 118,

Alabama—Alabama, etc. R. Co. v.
Skotzy (Ala.), 71 So. 335.
Connecticut——Vickery v. New Lon-

don, etc., R. Co., 87 Conn. 634, 89 Atl.
277.

Kansas.—Barker v. Kansas, etc, R.
Co., 88 Kan. 767, 129 Pac. 1151.

North Carolina—Lioyd v. Southern
R. Co., 166 N. C. 24, 81 S. E. 1003,
affirmed in 239 U. S. 496, 36 S. Ct.
210.

Oregon.—Oberlin v. Oregon-Wash-
ington R., etc, Co., 71 Ore. 177, 142
Pac. 554.

Texas.—kansas, etc., R. Co. v. Hall
(Tex. Civ. App.), 152 S. W. 445.

Where the plaintiff was injured by
a switch in close proximity to a track
and the defendant attempted to es-
cape the liability on the ground of as-
sumption of risk, it was necessary that
this should be specially pleaded. Vick-
ery v. New London, etc. R. Co., 87
Conn. 634, 89 Atl. 277.

In order for a defendant to avail it-

self of the defense of assumption of
risk, it must, under our practice, be
specially pleaded in the answer, and
an issue should be tendered thereon
unless it is submitted by the court on
its own motion. Lloyd 7. Southern R.
Co., 166 N. C. 24, 81 S. E. 1003, affirmed
in 239 U. S. 496, 36 S. Ct. 210.

35. Same—Distinction between “or-
dinary” and “extraordinary” risk.—
New York, etc., R. Co. v. Vizvari, 126
C. C. A. 632, 210 Fed. 118. :

36. Same—Sufficiency of facts to
show.—Oberlin v. Oregon-Washington
R., etc., Co., 71 Ore. 177, 142 Pac. 554.

37. Southern R. Co. v. Peters (Ala.),
69 So. 611, 613.

38. Same—When shown by plaintiff's
evidence.—New York, etc, R. Co. v.
Vizvari, 126 C. C. A. 632, 210 Fed. 118.

39. Plea to venue, where action
brought in federal court.—Erie R. Co.
v. Kennedy, 112 C. C. A. 76, 191 Fed.
832, :

40. Striking answer of lis pendens.—
Cory v. Lake Shore, etc, R. Co. (D.
C.), 208 Fed. 847.
CHAPTER XXII.

DEFENSES TO ACTION.

. In General, § 142.

. Contributory Negligence and Assumption of Risk, § 143.
. Settlement by Administrator, § 144.

Former Judgment as Res Adjudicata, § 145.

. Lis Pendens, § 146.

. Defenses of Co-defendant, § 147.

Pw Ne

a

§ 142. In General.—The effect of any contract, stipulation or device
intended to defeat the operation of the act,! and the right to defeat a re-
covery under a state law by showing the exclusive operation of the federal
act,2 have been considered.

The fact that an employee was injured in a state where under the circum-
stances causing his injury he was liable to be punished criminally as for a
misdemeanor, would not affect his right of recovery when it depends upon
this act of congress, to which all state legislation must yield.?

§ 143. Contributory Negligence and Assumption of Risk.—
The act abolishes the defense of assumption of risk in cases where the de-
fendant has violated any statute enacted for the safety of the employee,
otherwise, under the act, the defense of assumption of risk remains as at
common law; and the term ‘statute,’ as used in this connection, means any
federal statute, and, in the absence of such statute, an employee may as-
sume the risk of injury.*

Under the act, contributory negligence on the part of the plaintiff is not
a bar to recovery; but the damages must be diminished by the jury in pro-
portion to the amount of negligence attributable to such employee.®

§ 144. Settlement by Administrator.—A settlement made by a spe-
cial administrator in no way binds the next of kin of deceased dependent
upon him for support, and confers no power on the person so appointed,
where it conclusively appeared that no petition was presented to the probate
court for the appointment of a specia! administrator. Such petition is ju-
risdictional, and without it, the probate court has no power to appoint such
administrator, to approve his bond, or to issue letters of administration.
Such orders are nullities.® :

1. Matters of defense—See ante,

4. Assumption of risk.—See ante,
“Agreements in Contravention of Act,”

“Assumption of Risk,’ Chap. XI. As

Chap. VI.

2. See ante, “Exclusive or Control-
ling Operation of Federal Act,” §§
24-28.

3. Criminal negligence of employee.
—Spokane, etc., R. Co. v. Campbell (U.
S.), 36 S. Ct. 683.

to assumed risk of fellow servants, see
ante, “Fellow Servants,” ‘Chap. IX.

5. Contributory negligence.—See
ante, “Contributory Negligence,”
Chap. X.

6. Bombolis v. Minneapolis, etc., R.
Co., 128 Minn. 112, 150 N. W. 385.

301
302

§§ 145-147 FEDERAL EMPLOYERS’ LIABILITY ACT.

§ 145. Former Judgment as Rés Adjudicata.’—A finding on a plea
in abatement that an action was maintainable only under the federal law
and not under a state statute, will not bar a future action under the federal
‘act.8 And a directed verdict and resulting judgment of a case brought un-
der a state statute, when the defendant pleaded and proved that the federal
act governed, is not deemed a bar to an appropriate action under the federal
act.2 Where on a former trial and appeal therefrom it was held erroneous
for the trial court to have directed a verdict for the defendant, upon the evi-
dence introduced by the plaintiff, this does not preclude the defendant from
setting up other matter of defense upon a subsequent trial; viz., that the
case was governed by the federal act and not the state law.1°

§ 146. Lis Pendens.—The federal act being exclusive where applicable,
it is no defense to an action thereunder that a suit for the same injury is:
pending under a state law.14

§ 147. Defenses of Co-Defendant.—Where the plaintiff joined with
his employer another railroad as a co-defendant, such co-defendant could
not show to relieve itself from liability that the Federal Safety Appliance
Act had been violated, the evidence of an unimpeached witness showing
that even’ had the law been complied with the accident would not have been
avoided.!?

7. Former judgment as res adjudi- 10. Right to introduce other de-

cata.—As to operation of judgment in
state court as res adjudicata, see ante,

“Former Judgment as Res Adjudi-
cata,” § 85.
8. Pelton v. Illinois Cent. R. Co.

(Jowa), 150 N. W. 236.
9. Ross v. Sheldon (Iowa), 154 N.
W. 499.

fenses on retrial_—Findley v. Coal, etc.,
R. Co. (W. Va.), 87 S. E. 198.

11. Lis pendens.—Cory' v. Lake
Shore, etc, R. Co. (D. C.), 208 Fed.
847.

12. Defenses of co-defendant. —
Campbell v. Canadian Northern R.
Co., 124 Minn. 245, 144 N. W. 772.
CHAPTER XXIII.

EVIDENCE.

1. Presumption and Burden of Proof, § 148.
2. Judicial Notice, § 149.
3. Admissibility of Evidence, §§ 150-159.
. Under Issues Made by Pleadings, § 150.
. Of Interstate Commerce, § 1£1.
. Relation of Parties, § 152.
. Of Negligence, § 153.
Of Contributory Negligence, § 154.
Of Rules and Orders, § 155. é
Of Pain, Suffering, and Mental Anguish, § 156.
. Damages to Plaintiff, § 157.
. Damages to Beneficiaries, § 158.
j. Evidence on Cross-Examination, § 159. ‘

4. Sufficiency of Evidence, §§ 160-164.

a. Generally, § 160.

b. Of Interstate Commerce, § 161.

c. Of Negligence of Defendant, § 162.

d. Under Doctrine of Res Ipsa Loquitur, § 163.

e. To Take Question to Jury, Following Federal Rule, § 164.
. Variance, §§ 165-166.

a. In Pleading Applicable Law, § 165.

b. Variance in Pleading and Proving Negligence, § 166.
. Amendment to Conform to Proof, § 167.
. Objections and Waiver, § 168.

ce FO HOA TP

or

a

-2

§ 148. Presumption and Burden of Proof.—Upon the plaintiff rests
the burden of proof to show a case within the law pleaded, either state or
federal,1 and to come under the federal act he must show that the relation
of employer and employee existed, and that he was within the scope of his
employment.2 The plaintiff must prove that the employer was a common
carrier engaged in interstate commerce and that the employee was also en-
gaged therein. In Cantin v. Glen Junction Transfer Co. (N. H.), 96 Atl.
303, the court said:

\

1. Presumptions and burden of 2. Relation of employer and em-

proof.—McAuliffe v. New York, etc.,
R. Co., 164 App. Div. 846, 150 N. Y. S.
512.

“When the question arises whether
the federal act applies, the burden is
upon the person asserting to show
that the facts at the time of the hap-
perting abated the original and primary
sovereignty of the state, and permitted
the exceptional and limited power of
the federal government to attach.”
McAuliffe v. New York, etc., R. Co.,
164 App. Div. 846, 150 N. Y. S. 512.

303

ployee.—Hobbs v. Great Northern R.
Co., 80 Wash. 678, 142 Pac. 20, L. R.
A. 1915D, 503. See ante, “Scope of
Act,” § 6.

3. Engaging in interstate commerce
by both parties—United States —Sea-
board, etc., R. Co. v. Moore, 228 U. S.
433, 57 L. Ed. 907, 33 S. Ct. 580; Erie
R. Co. wv. Jacobus, 137 C. C. A. 151,
221 Fed. 335; Shanley v. Philadelphia,
etc, R. Co. (D. C.), 221 Fed. 1012;
Pittsburgh, etc., R. Co. v. Glinn, 135
C. C. A. 46, 219 Fed. 148; Bay v. Mer-
§ 148 FEDERAL EMPLOYERS’ LIABILITY ACT. 304

“In order for the plaintiff to prevail under that statute he must show,
among other things, that at the time of the accident he was engaged in
interstate commerce. If the business of the railroad which employs
him is in part interstate and in part intrastate commerce, the statute
does not apply when the work he is engaged in at the time of his injury
is wholly of the latter class. He must show that he was injured while
employed in the former capacity.” 4

But it need not be proved that an engine by which an employee was killed
was engaged in interstate commerce.®

The plaintiff must also prove that the injury was the result of the em-
ployee’s negligence while so engaged.® But in an action to which the evi-
dence shows the federal law is applicable and therefore supreme, the plain-
tiff cannot have the advantage of a state law providing that the proof of
the existence of defects in appliances is prima facie evidence of negligence,
sufficient to throw the burden of disproving negligence on the railroad com-
pany;7 or of a state law that there is a presumption of negligence from an

injury caused by the running of cars or locomotives.§
So in an action under the act the plaintiff cannot be

rules of procedure.

required to prove himself free from negligence.®

rill, etc., Lumber Co. (D. C.), 211 Fed.
717; Southern R. Co. v. Lloyd, 239 U.
S. 496, 36 S. Ct. 210.

Illinois —Chicago, etc., R. Co. v. In-
dustrial Board (Ill.), 113 N. E. 80.

Kentucky.—Chesapeake, etc., R. Co.
v. Shaw (Ky. App.), 182 S. W. 653.

Loutsiana—Gordon v. New Orleans,
etc, R. Co., 135 La. 137, 64 So. 1014.

Minnesota—Hurley v. Illinois Cent.
R. Co. (Minn.), 157 N. W. 1005.

Montana.—Alexander v. Great North-
ern R. Co. (Mont.), 154 Pac. 914.

New York.—McAuliffe v. New York,
etc., R. Co., 164 App. Div. 846, 150 N.
Y. S. 512; Knowles v. New York, etc.,
R. Co., 164 App. Div. 711, 150 N. Y.
S. 99.

Ohio.—Erie R. Co. v. Welsh, 89 O.
St. 81, 105 N. E. 189:

Oklahoma.—St. Louis, etc., R. Co. wv.
Brown (Okla.), 144 Pac. 1075; Atchi-
son, etc., R. Co. v. Pitts, 44 Okla. 604,
145 Pac. 1148.

Pennsylvania——Hench v. Pennsylva-
nia R. Co., 246 Pa. 1, 91 Atl. 1056, L,.
R. A. 1915D, 557.

Washington. — Tsmura  v. Great
Northern R. Co., 58 Wash. 316, 108
Pac. 774.

4. Citing Illinois, etc, R. Co. w.
Behrens, 233 U. S. 473, 58 L. Ed. 1051,
34 S. Ct. 646, Ann. Cas. 1914C, 163.

5. Pittsburgh, etc, R. Co. v. Far-
mers’ Trust, etc., Co. (Ind.), 108 N.
E. 108.

6. Negligence of defendant.—United
States—Bay v. Merrill, etc., Lumber
Co. (D. C.), 211 Fed. 717; Pennsylva-

Such rules are not

In Central Vermont R.

nia R. Co. v. Knox, 134 C. C. A. 426,
R18 Fed. 748; Canadian Pac. R. Co. v.
Thompson (C. C. A.), 232 Fed. 353.
Georgia.—Louisville, etc, R. Co. v.
Kemp, 140 Ga. 657, 79 S. E. 558; Char-
leston, etc. R. Co. wv. Brown, 13 Ga.
App. 744, 79 S. E. 932; Bowers v.
Southern R. Co., 10 Ga. App. 367, 73
S. E. 677. :
Kentucky—South Covington, etc., R.
Co. v. Finan, 153 Ky. 340, 155 S. W.
742; Cincinnati, etc., R. Co. v. Gold-
ston, 156 Ky. 410, 161 S. W. 246.
Minnesota—Hurley v. Illinois Cent.
R. Co. (Minn.), 157 N. W. 1005.
Missourit.—Fish v. Chicago, etc. R.
Co., 263 Mo. 106, 172 S. W. 340.
New York—Swartwood v. Lehigh,
etc., R. Co., 169 App. Div. 759, 155 N.

Y. S. 778.

Dakota——Manson v. Great
Northern R. Co. (N. Dak.), 155 N. W.
32, 34,

West Virginia—Culp v. Virginian R.
Co. (W. Va.), 87 S. E. 187. See post,
“Of Negligence of Defendant,” § 162.

7. Effect of state law changing bur-
den of proof.—South Covington, etc.,

. Co. v. Finan, 153 Ky. 340, 155 S.
W. 742.

8. A contrary holding on this point
in Louisville, etc, R. Co. v. Rhoda
(Fla.), 71 So. 369, was reversed in a
memorandum decision in 238 U. S.
608, 59 L. Ed. 1487, 35 S. Ct. 662.

9. Rule as to burden of proof as one
of procedure—Central Vermont R.
Co. v. White, 238 U. S. 507, 59 L. Ed.
1433, 35 S. Ct. 865, affirming 89 Atl.
618.
305

EVIDENCE.

§ 148

Co. v. White, 238 U. $. 507, 59 L. Ed. 1433, 35 §. Ct. 865, the court

said:

“But it is a misnomer to say that the question as to the burden of proof

as to contributory negligence is a mere matter of state procedure. For,
in Vermont, and in a few other states, proof of plaintiff’s freedom from
fault is a part of the very substance of his case. He must not only sat-
isfy the jury (1) that he was injured by the negligence of the defend-
ant, but he must go further, and, as a condition of his right to recover,
must also show (2) that he was not guilty of contributory negligence.
In those states the plaintiff is as much under the necessity of proving
one of these facts as the other; and as to neither can it be said that the
burden is imposed by a rule of procedure, since it arises out of the gen-
eral obligation imposed upon every plaintiff, to establish all of the facts
necessary to make out his cause of action. But the United States courts
have uniformly held that, as a matter of general law, the burden of
proving contributory negligence is on the defendant. The federal
courts have enforced that principle even in trials in states which hold
that the burden is on the plaintiff. * * * Congress, in passing the
Federal Employers’ Liability Act, evidently intended that the federal
statute should be construed in the light of these and other decisions of
the federal courts. Such construction of the statute was, in effect, ap-
proved in Seaboard, etc., R. Co. v. Moore, 228 U. S. 433, 57 L. Ed. 907,
33 S. Ct. 580. There was, therefore, no error in failing to enforce what
the defendant calls the Vermont rule of procedure as to the burden of

proof.”

A plea of contributory negligence does not amount to such an admission
of negligence so as to relieve the plaintiff of the burden of proof in this

respect.1°

Should the action be brought by the personal representative, it is necessary
to prove the existence of such beneficiaries as are designated by the act.11

10. Plea of contributory negligence
as relieving from proof.—Nelson wv.
Northern Pac. R. Co., 50 Mont. 516,
148 Pac. 388.

“Counsel makes the contention seri-
ously that a plea of contributory neg-
ligence is an admission of the negli-
gence alleged in the complaint, and
that, since, under the federal statute,
contributory negligence is not a bar
to the action, the nonsuit was improp-
erly granted. Under § 3 of the act,
a plea of contributory negligence 1s
not available in any case, except to di-
minish the amount of damages, and
may not be interposed for any pur-
pose in cases in which the violation of
a statute enacted for the safety of em-
ployees has contributed to the injury.
Seaboard Air Line Railway v7. Horton,
233 U. S. 492, 58 L. Ed. 1062, 34 Ss.
Ct. 635, Ann. Cas. 1915B, 475. But
the statute does not in any wise affect
the office of the plea when it is avail-
able, except as expressly indicated.

Fed Act—20

In the case of Day «7. Kelly, 50 Mont.
306, 146 Pac. 930, the same contention
was made as counsel makes here. The
office and effect of such a plea was
examined in the light of the decisions
on the subject, and it was determined
that the plea, when coupled with a de-
nial, involves merely a hypothetical
admission, and does not in any meas-
ure relieve the plaintiff of the burden
of proving negligence on the part of
the defendant in some one or more of
the particulars alleged in the com-
plaint. The contention, therefore, can
not be sustained.” Nelson v. North-
ern Pac. R. Co., 50 Mont. 516, 148 Pac.
388.

11. Beneficiaries—TIllinois Cent. R.
Co. v. Doherty, 153 Ky. 363, 155 S. W.
1119, 47 L. RL. A, N.S, 81.

“The evidence being wholly insuffi-
cient to show that the decedent was
survived by any person naturally or
actually dependent upon him in the
meaning of the Employer’s Liability
§ 148

FEDERAL EMPLOYERS’ LIABILITY ACT.

306

And where the action is brought for the benefit of the beneficiaries in the
second or third class, the proof should show their right to recover by evi-
dence that there were no beneficiaries of the preceding class,!* though the
evidence may be such as to create a presumption of the non-existence of

other beneficiaries.13

Upon the defendant rests the burden of proof of any defense it may have
to the action; as assumption of risk,14 or contributory negligence,!5 or the
character of the commerce in which it or the employee were engaged, if
thereby it seeks to prevent a recovery under the case alleged.1¢

Act of April 22, 1908, the refusal by
the trial court of the peremptory in-
struction directing a verdict for appel-
lant was error. No right of recovery
in behalf of appellee was shown, and,
having failed to manifest such right
under the Employer’s Liability Act, he
could not rest his right to recover on
the statute of the state.” Illinois Cent.
R. Co. v. Doherty, 153 Ky. 363, 155
S. W. 1119, 47 L. R. A., N. S., 31.

12. -Moffett v. Baltimore, etc, R.
Co., 135 C. C. A. 607, 220 Fed. 39.

“In view of the provisions of the
statutes, it was necessary to allege and
prove that the deceased left no widow
or children surviving him in order to
entitle plaintiff in this instance to re-
cover. Garrett v. Louisville, etc. R.
Co. 117 C. C. A. 109, 197 Fed. 715;
Michigan Cent. R. Co. v. Vreeland,
227 U. S. 59, 57 L. Ed. 417, 33 S. Ct.
192, Ann. Cas. 1914C, 176; American
R. Co. v. Didricksen, 227 U. S. 145, 57
L. Ed.-456, 33 S. Ct. 224, Ann. Cas.

1914C, 128.” Moffett wv. Baltimore,
etc. R. Co, 135 C. C. A. 607, 220
Fed. 39. See ante, “Existence of Ben-

¢ficiaries in One Class, as Excluding
Other Classes,” 91.

18. Moffett v. Baltimore, etc, R.
Co., 135 C. C. A. 607, 220 Fed. 39.

“The mother of the decedent testi-
fied that he always contributed to her
support, and that he would give her
the last dollar he had; further, that he
spent very little for himself, and that
he only paid his board, and that she
did not know that he bought any
clothes while working for the com-
pany, but that he gave his money to
her. These things probably would not
have happened if he had had a wife
and children. Indeed, the record
shows that the trial was conducted by
counsel on both sides on the assump-
tion that the father and the mother
were the nearest relatives. In view of
this evidence, it would be absurd to
say that there were no facts from
which the jury could reasonably infer
that decedent had no wife or child.
To deprive the decedent’s mother, in

view of the evidence, of the privileze
of having her rights passed upon by a
jury on account of a technical slip of
this kind, would be a manifest miscar-
riage of justices.” Moffett v. Balti-
more, etc., R. Co., 135 C. C. A. 607, 220
Fed. 39.

14. Burden of proof of defenses.—
United States—Kanawha, etc. R. Co.
v. Kerse (U. S.), 36 S. Ct. 174.

Connecticut—Vickery v. New Lon-
don, etc., R. Co., 87 Conn. 634, 89 Atl.
277.

Georgia—Charleston, etc., R. Co. v.
Brown, 13 Ga. App. 744, 79 S. E. 932.
og ante, “Assumption of Risk,” Chap.

15. Central Vermont R. Co. wv.
White, 238 U. S. 507, 59 L. Ed. 1433,
35 S. Ct. 865; S. C., 87 Vt. 330, 89 Atl.
‘618.

Plaintiff was not required to show
that he was free from fault (as the
employee who proceeds for damages
under the statutes of this state must
do), if he succeeded in proving that
it was negligence to give the signal to
stop the train, and that his injury re-
sulted primarily from this negligence
of one of the carrier’s employees, it
is sufficient. Charleston, etc., R. Co.
v. Brown, 13 Ga. App. 744, 79-S. E.
G32,

“Consequently the question of the
burden of proof respecting contribu-
tory negligence on the part of the in-
jured employee is to be determined ac-
cording to the provisions of that act,
and the declaration of the Supreme
Court of the United States thereon
controls. In Seaboard, etc., R. Co. v.
Moore, 113 C. C. A. 668, 193 Fed. 1022,
this burden was charged to be with
the defendant, and on writ of error the
judgment was affirmed by the Su-
preme Court of the United States.
Same case, 228 U. S. 433, 57 L. Ed.
907, 33 S. Ct. 580.” White v. Central,
etc., R. Co., 87 Vt. 330, 89 Atl. 618,
affirmed in 35 S. Ct. 865. See ante,
“Contributory Negligence,” Chap. X.

16. Zavitovsky v. Chicago, etc. R.
Co., 161 Wis. 461, 154 N. W. 974,
307 EVIDENCE. §§ 148-149

Burden of proof of contributory negligence is not upon defendant where
the evidence of plaintiff proves or tends to prove the same.17 So even where
the plaintiff has alleged in his declaration that he was ‘“‘without fault or neg-
ligence on his part,’ he will not be required to prove such allegation.
The federal courts have never held that where plaintiff’s negligence is estab-
lished by his own evidence, the defendant could not have the benefit of it.
The onus probandi as to defendant begins with the condition of affairs as
it stands upon the undisputed facts as plaintiff’s testimony leaves them. So
where any presumption of law that plaintiff was not in fault which might
otherwise obtain was overthrown by his own evidence, and it is clearly dis-
closed by the undisputed facts that plaintiff was guilty of such negligence
causing or contributing to the accident as would, at common law, have en-
tirely barred recovery; viz. that plaintiff was violating well-known rules of
his company when this accident occurred is conclusively shown, he was, as
a matter of law, guilty of negligence, and the court should have so instructed
the jury before submitting to them the questions of defendant’s negligence
and apportionment of damages.?8

§ 149. Judicial Notice.—Both state and federal courts take judicial
notice of the federal statutes.19 As seen when treating the supremacy of
the federal law, and stating actions thereunder, it is not necessary to plead
or prove the act but when the facts show it applicable the court will take
judicial notice of it and enforce it.2° And for the purpose of determining
the interstate character of a railroad, the court will take judicial notice of
its charter,2! the geography of the state,2? and the terminus of its main line
when situated in a well-known geographical point.2* But where the defend-
ant knowing the origin and destination of cars, failed to show the same the
court will not take judicial notice of the fact that they were engaged in in-
terstate commerce by reason of the fact that they were shown to have ar-
rived at a point in a state that was near the state line from the direction in
which they came.?4

17. Plaintiff's evidence showing de- 28. Bower wv. Chicago, etc., R. Co.,

fense is available to defendant.—Culp
v. Virginian R. Co. (W. Va.), 87 S. E.
187.

18. Holmberg v. Lake Shore, etc.,
R. Co. (Mich.), 155 N. W. 504, 506.

19. Judicial notice of statutes.—Cin-
cinnati, etc., R. Co. v. Tucker, 168 Ky.
App. 144, 181 S. W. 940.

20. See ante, “Right to Recover un-
der Either State or Federal Law—
Pleading and Proof,” § 27; Unneces-
sary to Plead Statutes,” § 129.

21. Of railroad charter.—Vickery vw.
New London, etc., R. Co., 87 Conn.
634, 89 Atl. 277.

22. Of State geography.—Lynch v.
Central, etc., R. Co. (Vt.), 95 Atl. 683,
€86.

96 Neb. 419, 148 N. W. 145.

The courts of this state will take
judicial notice of the fact that the
“Black Hills’ are in South Dakota,
and of the further fact that the west-
ern terminus of the main line of the
Chicago & Northwestern Railway
Company, running from Omaha north-
west through the city of Long Pine,
Neb., is in the Black Hills, in the state
of South Dakota. Bower v. Chicago,
etc., R. Co., 96 Neb. 419, 148 N. W.
145. :

24. Interstate character of cars ar-
riving at point near state line.—Texas,
etc., R. Co. v. Rigsby (U. S.), 36 S.
Ct. 482.
§ 150 FEDERAL EMPLOYERS LIABILITY ACT. 308

§§ 150-159. Admissibility of Evidence—§ 150. Under Issues
Made by Pleadings.—In a complaint based upon the act it is sufficient to
allege that the defendant is a railroad company engaged as a common car-
rier in interstate commerce; that the plaintiff was employed by the defend-
ant in such commerce; and that he received his injury in connection there-
with through the negligence of the defendant. Such allegations are not
conclusions of law; and it is held error to refuse proffered proof in support
of them, for that reason.2> And a new trial will be granted, where the de-
fendant after pleading the federal law offers evidence to sustain the plea
which was held inadmissible, and the trial proceeded as at common law.?®

Where the plaintiff has stated his action so as to show a case under one
law only, either state or federal, and the defendant does not raise an issue
by pleading the opposite law, any evidence to show the case is governed by
the same, is inadmissible.27 But where by its plea in bar the defendant ex-
pressly supplied the omission in the declaration, essential to a good cause
of action under the federal law, and issue was joined on the replication, the

25. Character of commerce.—Lewis
v. Denver, etc., R. Co., 131 Minn. 122,
154 N. W. 945.

26. Carpenter v. Central,
Co. (Vt.), 96 Atl. 373.

27. Same—Right to show when not
pleaded.—Georgia.— Louisville, etc. R.
Co. v. Barrett (Ga.), 85 S. E. 923.

New York.—Rogers v. New York,
es R. Co. (App. Div.), 157 N. Y.

. 83.

North Carolina—Fleming v. Norfolk,
etc, R. Co. 160 N. C. 196, 76 S. E.
212, 43 L. R. A, N. S., 293.

Ohio.—Erie R. Co. v. Welsh, 89 O.
St. 81, 105 N. E. 189.

South Carolina—Mims v. Atlantic,
etc., R. Co., 100 S. C. 375, 85 S. E. 372.

West Virginia —Findley v. Coal, etc.,
R. Co. (W. Va.), 87 S. E. 198.

Wisconsin.—Gray v. Chicago, etc., R.
Co., 153 Wis. 637, 142 N. W. 505, 508,
Ann. Cas. 1915A, 911, L. R. A. 1915F,
744, affirmed in 35 S. Ct. 620.

“It is not necessary to plead either
a state or federal statute, but it is nec-
essary to plead facts which bring it
under one or the other; and, when the
pleadings show that it was interstate
commerce, the state or federal courts
try it, and federal law governs; when
the pleadings show it was intrastate
commerce, the state law governs. The
defendants should have pleaded the
federal act, or at least such facts as
would render the act applicable; and
inasmuch as they did not do so, and
the pleadings made out a case based
on the state law, the exclusion of the
evidence by his honor, complained of,
was proper, as it was not responsive

etc, R.

to any issue raised by the pleadings.
If there had been an allegation in the
answer that brought it within the Fed-
eral Employers’ Liability Act, it
would have been controlled by the
act, although the provisions may not
have been referred to in express terms
in the pleadings, and proof would be
allowed in the case, but in this case
there is no such allegation, and his

. honor committed no error, and these,

exceptions are overruled.” Mims v.
Atlantic, etc, R. Co., 100 S. C. 375,
85 S. E. 372.

In an action for damages against a
railroad company for a personal in-
jury to an employee negligently in-
flicted, where the complaint alleges the
injury sued on occurred on an intra-
state train, it is incompetent for the
defendant to show that the train was
an interstate train, in the absence of
a denial of plaintiff's allegation in the
answer, and thus defeat the plaintiff’s
action on the ground of a failure of
his proof, under the Federal Employ-
ers’ Liability Act, considered as a sep-
arate cause of action. Fleming v. Nor-
folk, etc, R. Co., 160 N. C. 196, 76
S._E. 212, 43 L. R. A. N. S., 293.

In Sells wv. Atchison, etc., R. Co.
(Mo.), 181 S. W. 106, it is held where
the plaintiff alleged that the defendant
was engaged in intrastate commerce
and the defendant answered by gen-
eral denial, this was sufficient to put
in issue the character of commerce.
As the plaintiff would have to offer
evidence to support the allegation, the
defendant could do so to show the
contrary or in rebuttal.
309 § 150

EVIDENCE.

defendant’s objection to the introduction of any evidence because the decla-
ration does not state facts sufficient to constitute a cause of action under that
law was properly overruled.28 Or should defendant. by its answer practi-
cally admit that the injury occurred in intrastate commerce, it cannot intro-
duce evidence to show the contrary.29

When the character of the commerce is not in issue, if evidence is ad-
mitted, over the objection of the parties it is subject to be stricken out.?°
This admission over objection, distinguishes the cases from those in which
the applicable law is made to appear from evidence admitted without ob-
jection; as where even if the defendant does not plead the act to the plain-
tiff’s action, based on a state law, and evidence is admitted without objec-
tion showing that the federal law is applicable, such must be applied to the
exclusion of the state law.3!

In an action between an employee of a railroad company in which the de-
fendant was a joint tort-feasor with plaintiff's employer, but the federal
act did not apply as between the parties for the reason that the relation of
master and servant did not exist, and defendant sought to defeat the action
by showing a release given by plaintiff, evidence was admissible to show
that as between plaintiff and his employer that they were engaged in inter-
state commerce and that the federal act would apply, under which such a

28. White v. Central, etc, R. Co.,
87 Vt. 330, 89 Atl. 618, affirmed in 35
S. Ct. 865.

29. Bitondo v. New York, etc., R.
Co., 163 App. Div. 823, 149 N. Y. &.
339. See, also, Fleming v. Norfolk,
etc, R. Co. 160 N. C. 196, 76 S. E.
212,43 L. R. A, N. S., 293.

80. Same—Striking evidence ad-
mitted over objection.—United States.
—Illinois Cent. R. Co. v. Nelson, 128
C. C. A. 525, 212 Fed. 69.

Iowa.—Bradbury v. Chicago, etc., R.
Co., 149 Iowa 51, 128 N. W. 1, 40 L.
R. A. N. S., 684.

North Carolina.—Fleming v. Norfolk,
etc, R. Co., 160 N. C. 196, 76 S. E.
212, 43 L. R. A, N. S., 293.

South Carolina—Koennecke v. Sea-
board, etc., Railway, 101 S. C. 86, 85
S. E. 374, affirmed in 36 S. Ct. 126.

But see Giersch v. Atchison, etc., R.
Co. (Kan.), 158 Pac. 54, where it is
held that the lower court erred in
striking from the record evidence that
the parties were engaged in interstate
commerce, because it was not an issue
under the pleadings, but that as the
widow could not maintain the suit un-
der the federal act, it was proper to
show this under a general denial.

31. Same—Admitted without objec-
tion— Toledo, etc, R. Co. v. Slavin,
236 U. S. 454, 59 L. Ed. 671, 35 S.

Ct. 306; St. Louis, etc., R. Co. v. Coke,
118 Ark. 49, 175 S. W. 1177.

In Rogers v. New York, etc., R. Co.
(App. Div.), 157 N. Y. S. 83, after the
plaintiff asked for an amendment of
her complaint to state a case under
the act which was refused, and the de-
fendant did not plead the federal act
as governing the case, but during the
trial conceded that the tracks at the
crossing and place where the intestate
met his death were regularly used
daily for the hauling of freight and ex-
press and passengers from a point
without the state to points east and
west of the state, and that freight, pas-
sengers, and express were hauled from
one state to another over these tracks.
However, that concession was made
with the distinct statement that it was
not to be regarded as in any way
waiving the defendant’s objection to
the evidence as incompetent and inad-
missible under the pleadings and im-
material in the case; counsel for the
defendant explicitly stating that the
concession was only to be regarded the
same as though the plaintiff had called
a witness and asked these questions,
and the defendant had taken objections
and exceptions, to which statement the
trial judge assented. This could not
serve to make the federal law appli-
cable, as it was not in issue under the
complaint or answer, and an objec-
tion is made.
310

§ 150 FEDERAL EMPLOYERS’ LIABILITY ACT.

release was void; and an agreement that the question of interstate commerce
should be eliminated would not preclude its admission.®2

Allegations of a reply, to a plea of settlement made with a special admin-
istrator, amounting to a denial of his appointment are sufficient to put in
issue the validity of the order of his appointment.33

The admission in evidence of a statute requiring a warning signal to be
placed at every overhead road, bridge or structure crossing a railroad track,
is irrelevant to the issue when the negligence charged was that defendant
maintained a high voltage wire over its tracks and where it passed under a
bridge it was so low that decedent, an engineer on the tender of the loco-
motive, came in contact with it and was killed34 A plaintiff, who relies
upon the failure of the defendant to provide a safe place to work, need not
allege that ice near the track was due to the negligent act of permitting a tank
to run over, as evidence of that fact is admissible for the purpose of show-
ing that the ice did not form from natural causes.35

Even though the Federal Safety Appliance Act is not relied upon as neg-
ligence, evidence may be admitted to show why a coupler was on one side
necessitating some action by the plaintiff to align another coupler to meet it.
The negligence alleged being the failure of the engineer to stop on signal.3¢

From the fact that a violation of a rule is not pleaded as negligence, or
in justification of plaintiff’s conduct, it does not follow that the rule and
testimony of its meaning in practice are wholly inadmissible. Under the
rule of comparative negligence, the jury is entitled to consider all the cir-
cumstances which characterize the negligence of either party and which
tend to fix the quantity and quality of that negligence in its relation to the
sum total of the negligence of both parties. Even though the negligence of
either party clearly appears, all circumstances of aggravation or of mitiga-
tion must be considered.37 In a case where the plaintiff sued and based
his action in part upon a violation of the safety appliance act, but upon the
trial abandoned this claim, the effect was not to withdraw all the evidence
tending to show that the act had been violated but was still admissible under
the issttes of the Employers’ Liability Act, and to show the occasion of the
plaintiff being upon the track and negativing negligence on his part.38

Evidence of contributory negligence, when offered in mitigation of dam-
ages, may be shown in some jurisdictions without issue under a special

32. Same—To show release void.—
Wagner v. Chicago, etc, R. Co., 265
Til. 245, 106 N. E. 809, Ann. Cas.
1916A, 778, affirmed in 239 U. S. —,
36 S. Ct. 135.

83. Appointment of administrator.—
Bombolis v. Minneapolis, etc., R. Co.,
128 Minn. 112, 150 N. W. 385.

34. Negligence—Farley v. New
York, etc. R. Co. 87 Conn. 328, 87
Atl. 990.

35. Renn v. Seaboard, etc., Railway
(N. C.), 86 S. E. 964, 970.

36. Trowbridge v. Kansas, etc, R.
Co. (Mo. App.), 179 S. W. 777.

37. New York, etc., R. Co. v. Niebel,
131 C. C. A. 248, 214 Fed. 952.

38. Same—Abandonment of issue as
withdrawn of evidence—St. Louis,
etc., R. Co. v. Brown (U. S.), 36 S. Ct.
602.
311 EVIDENCE. §§ 150-151
plea °° in others it is required that it be pleaded4® But under § 3 the car-
rier has a federal right to a fair opportunity to show in diminution of
damages any negligence contributable to the employee, which cannot be
defeated by an unsettled rule of practice.4+

Where a new trial is awarded on appeal only on the issue of damages,
the plaintiff is not confined on the second trial to the evidence on this issue
he has introduced on the first one, but may show other matters tending to
increase the amount.*?

Where the allegations in the plaintiff’s petition set out that his body was
bruised, his ribs fractured, his skull caved in, one of his ear drums bursted,
the back of his skull fractured, his spinal cord and nervous system injured,
the joints of his neck strained, the large bone in his right leg bruised, and
that his eyes and ears were injured so as to permanently injure his eyesight
and hearing, and his body and head otherwise bruised and injured; it is
improper and reversible error to permit him to prove that his senses of taste
and smell had been greatly impaired as a result of the accident; that he
could not smell anything, and that everything tasted alike, and to allow med-
ical experts to give testimony along these lines.43

§ 151. Of Interstate Commerce.—Evidence of the character of
freight shipped on a train of which a decedent was employed,** a statement
of a conductor to a plaintiff as to the interstate character of a train,#® and
evidence of the general duties of a train crew,*® are admissible to show the
character of the commerce in which the parties were engaged. And where
plaintiff was engaged in loading engines with coal and injured when pre-
paring to load the next engine that came, evidence that the next engine ex-
pected was hauling an interstate train is admissible*7 The defendant is
entitled to show by the records required to be kept by its agents the char-
acter of commerce hauled by a certain train, and the exclusion of such evi-
dence is error.48 And when shown by an agent to be correct and that they
were made in the due course of business, they are admissible though not
offered while he was on the stand but at a time when another agent was
testifying.4® So too, the defendant, having shown the loss of certain way-

39. Contributory negligence.—Jones 44, Evidence of interstate com-

v. Kansas, etc. R. Co., 137 La. 178,
68 So. 401, reversed on other grounds
in 36 S. Ct. 513.

40. See ante, “Pleading Assumed
Risk and Contributory Negligence,” §
139.

41. Kansas, etc., R. Co. v. Jones (U.
S.), 36 S. Ct. 513.

42. Damages as limited to evidence at
former trial.—Ferebee v. Norfolk, etc.,
R. Co., 167 N. C. 290, 83 S. E. 360, af-
firmed in 35 S. Ct. 781.

43. Of injury to taste and smell—
Louisville, etc, R. Co. v. Henry (Ky.
App.), 180 S. W. 74, 77.

merce.—Southern Pac. Co. v. Vaughn
(Tex. Civ. App.), 165 S. W. 885, writ
of error denied in 170 S. W.. xix,
no op.

45. Howell v. Atlantic, etc. R. Co.,
99 S. C. 417, 83 S. E. 639.

46. Montgomery v. Southern Pac.
Co., 64 Ore. 597, 131 Pac. 507, 47 L.
R. A, N.S. 13.

47. Southern R. Co. v. Peters (Ala.),
G9 So. 611.

48. Records.—Carpenter v. Central,
etc, R. Co. (Vt.), 96 Atl. 373.

49. Same—Time of introduction —
Trowbridge v. Kansas, etc, R. Co.
(Mo. App.), 179 S. W. 777.
312

§§ 151-153 FEDERAL EMPLOYERS’ LIABILITY ACT.

bills indicating the destination of the cars in question, it was error to refuse
to admit letter press copies offered in evidence.5® And in the former days
of strictness carbon copies of office records were not deemed competent,
but practical requirements of ‘business, and the application of common
sense by the courts have brought about a recognition of the competency of
such records.54 What is part of the res geste must in a large measure be
left to the sound judicial discretion of the trial judge.5? So evidence that
a son told his mother what he was doing at the time of a collision when he
was injured from which he subsequently died, is not admissible as part of
the res geste.53

§ 152. Relation of Parties.—Where written contracts provide, on
their face, that a street railway company should take defendant’s cars and
operate them exclusively, with its own servants, that is not any reason to
prevent the fact from being shown, if it were a fact, that, notwithstanding
the writing, the defendant operated them with its own servants, or at least
with its own motorman, as written contracts cannot be utilized to prevent
evidence that they were not observed.*+

§ 153. Of Negligence.—Evidence of the condition of a switch, or a
platform at a time subsequent to the injury may be shown if they were in
the same condition on the two occasions in question, whether it sought to
show a prior defective condition,®>> or prior good condition.5* Evidence has
been held admissible of the prior good condition of an engine, with respect.
to a defect claimed at the time of the injury,5? as well as its condition just
prior to the injury,®§ and evidence of the prior derailment of an engine 5®
or of a prior defective condition is admissible on the question of notice.®°
Objections as to the remoteness of the latter class of evidence go more to its
weight than to its competency.®! ‘So too, evidence is admissible that a type
of engine was being discarded, to show defendant’s knowledge of the dan-
ger in their use.6? But evidence that it was the duty of an engineer to re-
port a defect in an engine on leaving a terminal is inadmissible in the ab-

50. Same—Copies of waybills.—Bar-
ker v. Kansas, etc, R. Co., 88 Kan.
767, 129 Pac. 1151, 48 L. R. A, N.S,
1121,

51. Giersch v. Atchison, etc., R. Co.
(Kan.), 158 Pac. 54, 55.

52. Res geste.—Mims v. Atlantic,
etc., R. Co., 100 S. C. 375, 85 S. E. 372.

53. Hobbs v. Great Northern R. Co.,
80 Wash. 678, 142 Pac. 20, L. R. A.
1915D, 503. ‘

54, Evidence of relation of parties—
Contradicting written agreement.—
McAdow v. Kansas, etc., R. Co. (Mo.
App.), 164 S. W. 188.

55. Evidence of negligence—Condi-
tion prior to injury.—Southern R. Co.
v. Lefan (Ala.), 70 So. 249; St. Louis,

etc, R. Co. v. Clampitt (Okla.), 154
Pac. 40.

56. Southern R. Co. v. Lefan (Ala.),
70 So. 249.

57%. Defects in engine—Niles v.
Central, etc, R. Co. 87 Vt. 356, 89
Atl. 629,

58. Niles v. Central, etc., R. Co., 87
Vt. 356, 89 Atl. 629.

59. ‘Chesapeake, etc, R. Co. vw.
Kelly, 160 Ky. 296, 169 S. W. 736.

60. Southern Pac. Co. v. Vaughn
(Tex. Civ. App.), 165 S. W. 885, writ
of error denied in 170 S. W. xix, no op.

61. Southern Pac. Co. v. Vaughn
(Tex. Civ. App.), 165 S. W. 885, writ
of error denied in 170 S. W. xix, no op.

62. Chesapeake, etc. R. Co. vw.
Kelly, 160 Ky. 296, 169 S. W. 736.
313 EVIDENCE. § 153

sence of a proposal to show that the engineer did not in fact make such
report.°3 In an action where the negligence charged was the explosion of
a locomotive boiler the contention of the plaintiff being that it was old and
scaly which caused its explosion and that of the defendant was that it ex-
ploded due to lack of water and evidence was introduced of a piece of scale
curved like the bark of a tree which fitted into a place on the crown sheet
and defendant introduced testimony that it had no boilers with curved
crown sheets, evidence in rebuttal that some types of boilers had curved
crown sheets was admissible.64

Where fire was discovered immediately after one of defendant’s locomo-
tive engines had passed over a bridge, and it was a question for the jury to
determine how the cross-ties and bridge caught fire and burned, it was
proper to permit a witness to testify that he saw places where fire had been
dropped about two miles from the trestle bridge, which was on fire.*®

Where unusual speed is relied on as negligence, evidence of the time
trains were due at a certain station is admissible to show the necessity
of unusual speed in order to make the schedule and permit other trains to
pass without delay.%6

Evidence is properly admitted to show whether a method adopted of load-
ing piles is reasonably safe, when they are loaded as was customary to load
saw logs, but the testimony showed a different method of loading telegraph
poles, which the piles more resembled.®7

Where plaintiff, a fireman, was injured by the sudden starting of an
engine when he was in dangerous position which he had assumed at the
request of the engineer to examine a defect in the engine, evidence that the
engineer had a friend riding in the cab of the engine was admissible as
far as it might show the want of attention to his duties the engineer was
giving to his train for this reason.®8 Evidence.is inadmissible to show that
the engineer in charge of the train on which plaintiff’s intestate, as a loco-
motive fireman, was killed, was-one of the most careful engineers of the
defendant. The question for the jury was not to determine what the en-
gineer’s general reputation was, but what his conduct was on the particular
occasion—whether or not at this particular occasion he was guilty of any
negligence or dereliction of duty.6® And where the plaintiff’s intestate has

63. Niles v. Central, etc., R. Co., 87
Vt. 356, 89 Atl. 629.

64. Dungan v. St. Louis, etc. R.
Co., 178 Mo. App. 164, 165 S. W, 1116.

65. Origin of fire—Bennett v. South-
ern Railway, 98 S. C. 42, 79 S. E. 710,
affirmed in 34 S. Ct. 566.

“This testimony tended to elucidate
how and by what means the fire orig-
inated which destroyed the trestle, and
his honor’s ruling is sustained in the
case decided by the Supreme Court of
the United States of Grand Trunk R.
Co. v. Richardson, 91 U. S. 454, 23
L. Ed. 356.” Bennett v. Southern Rail-

way, 98 S. C. 42, 79 S. E. 710, affirmed
in 34 S. Ct. 566.

66. Excessive speed.—St. Louis, etc.,
R. Co. v. Duke, 112 C. C. A. 564, 192
Fed. 306.

67. Loading cars.—Michigan Cent.
R. Co. v. Schaffer, 136 C. C. A. 413,
220 Fed. 809.

68. On part of engineer.—Southern
R. Co. v. Gadd, 125 C. C. A. 21, 207
Fed. 277, affirmed in 34 S. Ct. 696.

69. Bennett v. Southern Railway, 98
S. C. 42, 79 S. E. 710, affirmed in 34
S. Ct. 566.
314

§ 153 FEDERAL EMPLOYERS’ LIABILITY ACT.

been killed by the defendant railroad’s train, it is competent for a witness to
testify that a curve near the place of the injury did not interfere with the
engineer’s view from his engine at a certain point north of the place, when
such is relevant to the inquiry Xs to whether the engineer saw, or by keeping
a proper lookout could have seen, the danger of the intestate in time to
have avoided killing him.7°

Testimony of experts is admissible on the question of a safe place to
work, as a cinder pit;7! or on the question of automatic couplers,7? or
the comparative merits of different types of engines.’3 But where evidence
is offered to show that an engine claimed to be defective compares favorably
with other engines of a type said to be unsatisfactory and being discarded,
it must be shown before the evidence is admissible that the engines sought
to be compared are of the same type, ™ and while a photograph of the rear
of a locomotive tender is not admissible to show negligence of the defend-
ant in the location of grab irons, it is admissible to explain the testimony of
witnesses, and upon its introduction in evidence its purpose is properly
limited by an instruction to this effect.75 What statements should be ad-
mitted under the doctrine of res geste must be left to the sound discretion
of the trial judge.7® Thus the statement of a brakeman, made some 15
minutes after an accident, explaining where he had obtained a coupling pin,
then in his possession, which he said had some connection with the coupling
on a car, is not sufficient to show a defective coupler as it was vague and

a violation of the res geste rule.7

70. Gray v. Southern R. Co., 167 N.

C. 433, 83 S. E. 849, reversed on the
facts in 36 S. Ct. 558.
71. Expert testimony.—Baltimore,

etc., R. Co. v. Whitacre, 124 Md. 411,
92 Atl. 1060.

As to qualifications of experts, see
post, “Witnesses,” Chap. XXIV.

“The construction of railroad cin-
der pits is not a matter with which
the average individual is so brought
in contact in his daily life as to be
necessarily familiar with what is and
what is not practicable and proper, as
to exclude evidence of an expert char-
acter. Furthermore, it appears that
cnly a very small number of water
pits have been built thus far in this
country. How they may compare
with dry pits in the element of dan-
ger is known to but few and is clearly
without the range of the ordinary ex-
perience of the individual. It was
therefore proper to admit this evi-
dence, as was done, and there was thus
raised by the testimony a distinct is-
sue as to the negligence of the de-
fendant, the railroad company, in the
construction and maintenance of the
pit.” Baltimore, etc., R. Co. v. Whit-
acre, 124 Md. 411, 92 Atl. 1060.

But where a collision was the result

72. Grand Trunk Western R. Co. vw.
Lindsay, 120 C. C. A. 166, 201 Fed.
836, affirmed in 32 S. Ct. 581.

73. Niles v. Central, etc, R. Co., 87
Vt. 356, 89 Atl. 629.

74. Niles v. Central,
87 Vt. 356, 89 Atl. 629.

7§.  Photograph—Limitation by in-
struction—Moore v. St. Joseph, etc.,
R. Co. (Mo.), 186 S. W. 1035.

76. Evidence under res geste rule.—
Mulligan v. Atlantic, etc., R. Co.
C.), 88 S. E. 445.

The court did not err in receiving
in evidence as a part of the res geste
statements as to the cause of an injury
made by the deceased at a time not
precisely shown, but perhaps as long
as 45 minutes after the accident, the
deceased at the time suffering intense
pain, and having so suffered since the
accident, there being some attendant
excitement, and the circumstances on
the whole tending to indicate an ab-
sence of fabrication and to accredit the
statements as trustworthy. Roach v.
Great Northern R. Co. (Minn.), 158
N. W. 282.

77. Kentucky, etc. R. Co. v. Min-
ton (Ky. App.), 180 S. W. 831.

etc., R. Co.,
315 EVIDENCE. §§ 153-155

of an open switch an exclamatory question made on the subject of the
condition of the switch and the answer thereto is admissible as res geste
when it occurred immediately following the collision, but questions and
answers in narrative form made one-half hour prior to the collision are
properly excluded.78

§ 154. Of Contributory Negligence.—To show the plaintiff guilty of
contributory negligence evidence is not admissible of his failure to obey
signals at a time prior to the accident.79 Evidence that it was the habitual
practice of brakemen at stations to alight from moving trains in the per-
formance of their duties is admissible, especially when it is shown that it
is impractical to perform such duties without getting on and alighting from
moving trains, and defendant’s rules only prohibited getting on or off trains
moving at a high rate of speed.89 And a plaintiff on his examination be-
ing asked if he in any way caused the injury, and answered that he was as
careful as could be, this is not objectionable as an expression of an opin-

1on.81

§ 155. Of Rules and Orders.—A railroad company may not prove its

printed rules by oral evidence of plaintiff on cross-examination.8?

The

construction of a rule is for the court, 88 and is not a subject for expert tes-

timony,84 while its

78. Cincinnati, etc., R. Co. v. Gross
(Ind. App.), 111 N. E. 653.

“The statement of the brakeman, as
to the cause of the accident, as the
narration of a past occurrence was in-
admissible as matter of law.” Wilson
v. Grand Trunk R. Co. (N. H.), 97
Atl. 981, 982.

79. Evidence of contributory negli-
gence.—Arizona, etc., R. Co. v. Clark,
125 C. C. A. 305, 207 Fed. 817.

“The record shows that the defend-
ant asked the witness whether the
plaintiff was a careful or negligent
man in the operation of his engine in
switching cars, and whether he knew
of any instances prior to the accident
and within the space of two years
where he was negligent in the opera-
tion of his engine in respect to obey-
ing signals, and offered to show by the
witness that the plaintiff for two years
previous to the accident in question
‘was habitually careless and negligent
in obeying signals given him while
operating his engine in switching cars
in the yards of the defendant;’ and of
the witness Kline the defendant asked
the question, ‘Do you know his (plain-
tiff’s) general reputation as to being
a safe and conservative engineer, or as
to his reputation of being a_ reckless
engineer in the operation of his en-
gine?’ objections to all of which the

applicability to the particular

case is for the

court sustained, to which rulings the
defendant excepted. We think the rul-
ings right. So far as concerns the
signals, the evidence showed that the
plaintiff strictly obeyed the signals
given him in the instance in question
by stopping his engine within eight
seconds after receiving it, resulting in
the injuries complained of, and we
find nothing in the evidence to the
contrary. Whether he failed to obey
some other signal at some other time
was manifestly immaterial.” Arizona,
etc., R. Co. v. Clark, 125 C. C. A. 305,
207 Fed. 817, affirmed in 35 S. Ct. 210.

80. St. Louis, etc., R. Co. v. Clam-
pitt (Okla.), 154 Pac. 40.

81. Renn v. Seaboard, etc. Railway
(N. C.), 86 S. E. 964.

82. Of rules and orders.—Ferebee
v. Norfolk, etc., R. Co., 167 N. C. 290,
83 S. E. 360, affirmed in 35 S. Ct. 781.

83. Chadwick v. Oregon-Washing-
ton R., etc. Co., 74 Ore. 19, 144 Pac.
1165, L. R. A. 1915C, 823.

84. Niles v. Central, etc., R. Co., 87
Vt. 356, 89 Atl. 629; White v. Central,
etc., R. Co., 87 Vt. 330, 89 Atl. 618, af-
firmed in 35 S. Ct. 865.

“The defendant called one J. E.
Maun as a witness, and, having quali-
fied him as an expert on railroad rules,
"asked him what duty rule 91 imposes
upon the rear brakeman; the defendant
§ 155 FEDERAL EMPLOYERS LIABILITY ACT. 316
jury.8 And where the defendant relies on the supposed negligence and con-
tributory negligence of an injured employee to defeat or reduce the amount
of any recovery under the federal act, it should not be limited in its proof
to its printed rules, but may properly give in evidence special instructions to
such injured employee as to other well known rules, practices and customs
promulgated by it to govern its employees in the safe operation of its trains.®®

Though an employee was running an engine in a direction contrary to
rules, still it may be shown that the rule was frequently violated, as tending
to show negligence on the part of employees who placed an engine so that
a collision resulted, killing the employee.’

A copy of a train order is properly admitted in evidence when it is shown
to be a copy, that the original was lost and could not be found after a rea-
sonable search in places where it was likely to be found.8§

While expert testimony is competent as to the genuineness of a written
instrument, one who has inspected an original train order may testify, that
a copy exhibited in evidence is not genuine, or that of two orders, one is

more like the original than the other, even though he is not an expert.89

claiming that it was entitled to the
opinion of an expert upon the rules.
The question was excluded and excep-
tion saved. The construction of this
rule, if material, was for the court;
and, while experts may be called to
define terms of art, to explain the
principles of their science, where such
principles are necessary to be under-
stood, to state the condition and prac-
tice of their business, when material,
they can not, as witnesses, be per-
mitted to instruct the court as to the
meaning and legal construction of a
written instrument, nor to give their
cpinion thereon.” White v. Central,
etc. R. Co, 87 Vt. 330, 89 Atl. 618, af-
firmed in 35 S. Ct. 865.

85. Koennecke v. Seaboard, etc.,
Railway, 101 S. C. 86, 85 S. E. 374, af-
firmed in 36 S. Ct. 126.

Where an engine had just reached a
yard from a trip on the main line the
court said: ‘While the undisputed
evidence shows that rule U, which for-
bids the moving of engines or cars
backward without lookout, was not ap-
plicable to yard service, it was con-
ceded that it was applicable on the main
line. Therefore, under the rule, ‘the
engine should have had a lookout while
on the main line from Columbia to
Cayce. As it was a question of fact
whether this more extended movement
than yard service had been completed,
there was no prejudicial error in ad-
mitting the rule, for it was for the jury
to say whether, under the circum-
stances, the lookout should have been
kept on the backing engine after it

entered the yard and until its extended
movement was completed.” Koen-
necke v. Seaboard, etc., Railway, 101
S. C. 86, 85 S. E. 374, affirmed in 36
S. Ct. 126.

86. Special instructions in connection
with printed rules.—Culp v. Virginian
R. Co. (W. Va.), 87 S. E. 187.

87. Showing Violation.—Louisville,
etc., R. Co. v. Fleming (Ala.), 69 So.
125,

88. Copies or parol evidence.— White
v. Central, etc., R. Co., 87 Vt. 330, 89
Atl. 618, affirmed in 35 S. Ct. 865.

Under § 782, L. O. L., requires the
original writing to be produced and
proved, except as provided in § 712.
Held that it fairly appeared the origi-
nal document could not be procured
by the plaintiff with proper diligence,
and that the absence thereof was not
due to his negligence or default, and
parol evidence thereof was admissible.
Pfeiffer v. Oregon-Washington R,,
etc., Co., 74 Ore. 307, 144 Pac. 762.

89. Same—Comparison of copy with
genuine order by non-expert witness.—
Tilghman v. Seaboard, etc., R. Co., 167
N. C. 163, 83 S. E. 315, 1090, reversed
on other grounds in 35 S. Ct. 653.

_ “Exception 45 was to the plaintiff’s
inquiry of the witness Bryant, as to
the paper introduced in evidence by
the defendant purporting to be the
train orders governing the plaintiff's
action. The plaintiff contended that
such paper was not genuine. This was
not a question of an expert on hand-
writing. but merely required the wit-
ness who had seen and inspected the
317 EVIDENCE. §§ 155-156

Custom may be used as a means of interpretation, but cannot be ad-
mitted to contradict explicit rules and positive orders. This is on the
principle that as the rules known to the plaintiff govern the relation between
him and his employer, they are in a sense part of the contract of his em-
ployment.%°

The admission in evidence of the rules regarding the duty of car in-
spectors when not shown to be prejudicial to the defendant or of advantage
to the plaintiff, will not be held error; especially when the bill of exceptions
fail to show any reason why it should operate to the prejudice of the de-
fendant.%

§ 156. Of Pain, Suffering, and Mental Anguish.—Under this act in
an action for personal injury the plaintiff may recover for the bodily suffer-
ing and the mental pain, which are inseparable from, and which necessarily
and inevitably result from the injury. So where after a wreck the plaintiff
was found pinned to the ground by a beam across his broken arm so near
to a fire which had immediately started that there was danger of its burn-
ing him before the timber could be sawed so that he could be released,
after evidence of this situation had been introduced, hjs testimony is ad-
missible that “I was in lots of pain and was afraid of being burned,” over
the objection of the defendant that it ‘was a self-serving declaration, no
part of the res geste, irrelevant, incompetent, and immaterial, and that it
embraced matters which were not evidential of an injury.” 92 And evi-
dence is admissible of the suffering in body and mind of an employee, con-

fined under an overturned engine where steam was burning him.®

original to state whether or not this
alleged carbon copy looked like the
original.” Tilghman v. Seaboard, etc.,
R. Co., 167 N. C. 163, 83 S. E. 315,
1090, reversed on other grounds in 35
S. Ct. 653.

A railroad company having two sta-
tions on its road with similar names,
“Grandy” and “Granite,” wired from
its proper department for two trains
going in opposite directions to meet at
one of these points, which they failed to
do, resulting in a collision and the in-
jury to the plaintiff, and the contro-
versy turned upon the question which
point was named in the order, the
plaintiff contending that the order he
received instructed “Grandy” as _ the
meeting point. The plaintiff having
been fully examined and testified he
had no doubt that the order read
“Grandy” instead of “Granite.” was
permitted to say that a paperwriting
exhibited to him looked nearer like the
one he had received than that intro-
duced by the defendant, and that it
read that the trains should pass at
“Grandy,” the name of the station as

appearing upon the order being indis-
tinct; and this is held no error. Tilgh-
man v. Seaboard, etc., R. Co., 167 N.
C. 163, 83 S. E. 315, 1090, reversed on
other grounds in 35 S. Ct. 653.

90. Contradiction by custom.—Chad-
wick v. Oregon-Washington R., etc.,
Co. 74 Ore. 19, 144 Pac. 1165, L. R.
A, 1915C, 823.

Admission of evidence of a custom
to the contrary of express rules and or-
ders is reversible error when the pur-
pose of the evidence was to excuse
plaintiff of contributory negligence.
Chadwick v. Oregon-Washington R.,
etc., Co., 74 Ore. 19, 144 Pac. 1165, L.
R. A. 1915C, 823.

91. Admission of rules when harm-
less error.— Boston, etc., Railroad
v. Benson, 124 C. C. A. 68, 205 Fed.
876.

92. Evidence of pain and suffering,
and mental anguish.—Illinois Cent. R.
Co. v. Nelson, 128 C. C. A. 525, 212
Fed. 69.

98. Texas, etc., R. Co. v. Rasmussen
(Tex. Civ. App.), 181 S. W. 212.
§§ 156-157 FEDERAL EMPLOYERS’ LIABILITY ACT. 318

Where the plaintiff's foot was amputated, evidence that he suffered great
trouble with the stump of his leg in trying to wear an artificial limb, that
his nervous system was injured, and other sufferings, the direct and proxi-
mate result of the injury he received, is competent evidence.°4 Evidence
of the undertaker who prepared the body of decedent for burial in answer
to a question as to where he found the body, that he found it on the pilot
“seemed to be crowded up there,” was not objectionable as showing pain
and suffering, when considered in connection with the question asked.°>
But as the recovery for mental anguish must be such as naturally results
from the injury, evidence that an employee was worried because he had a
son to educate who had never been to school is not admissible evidence.%

However, where the admissions of a deceased employee are not admis-
sible in evidence under all the issues, but are admissible to show pain and
suffering, there should be a request for their admission, and limited to that
issue.97 And where plaintiff had his legs broken, evidence that he suffered
pain was admissible even in the absence of an allegation to that effect.98
And where the pleadings were such as to leave only negligence and con-
tributory negligence in issue it is error to permit the introduction of evi-
dence that decedent’s body was burned in a fire resulting from a collision.9*

§ 157. Damages to Plaintiff.—In an action to recover damages for
a personal injury, it is competent for the plaintiff to testify, upon the ques-
tion of the measure of damages, as to his trade or business and proficiency
therein, and how the injury had reduced his earning capacity.1 So too, the
plaintiff may testify to the amount of wages he had received as brakeman,
as flagman, and at the time he was injured, that then he “had been in
line for the extra baggage for two or three months.” 2 To show that by his
injuries an employee was unfit for work it is proper to admit evidence
that the plaintiff in a conversation with a superintendent of the company
was told of a report from the company’s hospital in which it was stated
that he was incompetent. It not being objectionable as secondary evidence,
the testimony not attempting to show a report or its contents but relating
only to the conversation.2 Expert evidence is properly admitted to show

94. Atlantic, etc., R. Co. v, Whitney,
64 Fla. 72, 61 So. 179.

95. White v. Central, etc., R. Co., 87
Vt. 330, 89 Atl. 618, affirmed in 35 S.
Ct. 865.

96. Ferebee v. Norfolk, etc, R. Co.,
163 N.C. 351, 79 S. E. 685, 52 L. R.
A., N. S., 1114.

97. Limited to this special issue.
Kansas, etc., R. Co. v. Leslie, 112 Ark.
305, 167 S. W. 83, reversed on other
grounds in 35 S. Ct. 844.

98. When pleadings raise issue.—
Niles v. Central, etc, R. Co. 87 Vt.
356, 89 Atl. 629.

99. Louisville, etc., R. Co. v. Hollo-
way, 163 Ky. 125, 173 S. W. 343.

1. Evidence of damages.—Ridge v.
Norfolk, etc., R. Co., 167 N. C. 510, 83
S. E. 762; Texas, etc., R. Co. v. ,Ras-
mussen (Tex. Civ. App.), 181 S. W.
212.

Plaintiff may testify that his injuries
left him in such a condition that he
could not run a switch engine, he hav-
ing knowledge of the requirements of
such service, and is not objectionable
aS an opinion or conclusion. ‘Texas,
etc, R. Co. v. Rasmussen (Tex. Civ.
App.), 181 S. W. 212.

2. Ferebee v. Norfolk, etc.. R. Co,
167 N. C. 290, 88 S. E. 360, affirmed in
35 S. Ct. 781.

3. Smith v. St. Louis, etc., R. Co., 95
Kan. 451, 148 Pac. 759.
‘

319 EVIDENCE. § 157
the extent of the injuries suffered by the plaintiff, whether the injuries were
the result of the accident, and the effect they are likely to have. This should
be based on actual knowledge, and not a history of the case,+ and an ob-
jection that the opinion of a witness, as to the condition of plaintiff's eyes,
was based on hearsay (history of the case as given by plaintiff) cannot be
sustained, when the witness had himself examined the plaintiff.5 So too,
the admission of opinions of experts based on a history of the case is
improper, but not ground for reversal where there was other expert testi-
mony not based on a history of the case. Thus it is competent for a medi-
cal expert, during the examination of the plaintiff in his action to recover
damages of the defendant for a personal injury alleged to have negligently
been inflicted by it, to indicate the wound on the plaintiff’s person, and tes-
tify from its character that it had apparently been produced “by some force
coming from above, carrying the head and upper part of the spine for-
ward,” and state his reasons, when relevant to the inquiry, and other com-
petent witnesses have testified as to the manner, place, and time the injury
had been received.7

And it is competent for a medical expert ta testify, within his own knowl-
edge, that the plaintiff’s vertebre had been crushed in the accident, for
which damages are claimed, and for him and other physicians, who have
qualified, to give their expert opinion as to the effect of this condition upon
the plaintiff. And also they may testify, when relevant to the measure of
damages in an action for a personal injury, as to the effect on plaintiff’s
nervous system in amputating his arm; that they found the plaintiff “run
down and weak, with rather a troubled expression, indicating sorrow and
suffering.” ®

Evidence of a physician is admissible to show that from the condition of
plaintiff’s wounds, it is very probable it will result in blood poison or erysip-
elas.1° And a hypothetical question purporting to embrace a history of the
case which concluded with a statement that, “Now, you may take those facts,
those statements, into consideration as facts, and include everything else
that you may have heard about the case, but take the facts that I have re-
cited to you as facts in connection with your own observation; now tell us
what the results of your examination are?’ is error requiring reversal,
even though the stenographer make affidavit that the word “include” was
written “exclude” in his notes, there being no order of the trial court to

4. Expert testimony. — Arkansas.—
Kansas, etc., R. Co. v. Miller, 117 Ark.
296, 175 S. W. 1164.

Kansas—Smith v. St. Louis, etc., R.
Co., 95 Kan. 451, 148 Pac. 759.

Maryland.—Baltimore, etc., R. Co. v.
Whitacre, 124 Md. 411, 92 Atl. 1060.

5. Kansas, etc., R. Co. v. Miller, 117
Ark. 396, 175 S. W. 1164.

6. Smith v. St. Louis, etc., R. Co., 95
Kan. 451, 148 Pac. 759.

7. Ferebee v. Norfolk, etc., R. Co.,
167 N. C. 290, 83 S. E. 360, affirmed in
35 S. Ct. 781.

8. Ridge v. Norfolk, etc., R. Co., 167
N. C. 510, 83 S. E. 762.

9. Ferebee v. Norfolk, etc., R. Co.,
167 N. C. 290, 83 S. E. 360, affirmed in
35 S. Ct. 781.

10. Texas, etc., R. Co. v. Rasmussen
(Tex. Civ. App.), 181 S. W. 212.
§§ 157-158 FEDERAL EMPLOYERS’ LIABILITY ACT. 320

amend the record.11 However, it is held that the refusal of the court to
permit defendant’s medical expert witness to further testify as to the
incorrect methods employed by a medical expert witness who had testified
in plaintiff’s behalf, is not erroneous, it appearing it was a repetition by the
witness of his testimony already given upon the trial.1?

X-ray photographs showing the resulting injuries to the bones of the
plaintiff are admissible.13

For the jury to determine the proper amount of damages, evidence of
an insurance expert in giving from his tables of value of an income, such
as the plaintiff was receiving at the time of the accident is properly ad-
mitted4 Mortality tables are not admissible in evidence to show the life
expectancy of a plaintiff, when there is no evidence to show that the injury
to him was permanent.15

If the plaintiff when being examined by experts does not make a full
disclosure of his injuries, and on the trial other injury is claimed for which
the examination was not made, the court should permit another examina-
tion when the same could be had without delay in the trial or inconvenience
to the plaintiff.1¢

§ 158. Damages to Beneficiaries.—Evidence is held admissible to
show the chance of a deceased employee being promoted ; 17 of his renting his
home and being a good provider and of his good moral habits;18 of his
earnings,!® and contributions to the support of a parent is material and
important in determining whether reasonable expectation of pecuniary bene-
fits exists, and in the assessment of damages which may be recovered.2° And
if such evidence is material and competent for the parent, the defendant may
prove the contrary.21_ And that the deceased was a member of a church, as

11. White v. Missouri Pac. R.
(Mo.), 178 S. W. 83.

12. Same—Cumulative testimony.—
Ferebee wv. Norfolk, etc., R. Co., 167 N.
C. 290, 83 S. E. 360, affirmed in 35 S.
Ct. 781.

13. X-ray photographs.—Chesapeake,
etc, R. Co. v. Kornhoff (Ky. App.),
180 S$. W. 523.

14, Insurance expert—Value of in-
come.—Baltimore, etc., R. Co. v. Whit-
acre, 124 Md. 411, 92 Atl. 1060.

15. Same—Mortality tables.—Snyder
v. Great Northern R. Co. (Wash.), 152
Pac. 703.

16. Permitting second examination
by experts.—Rief v. Great Northern
R. Co., 126 Minn. 430, 148 N. W. 309.

17. Damages to beneficiaries.—Ft.
Worth, etc, R. Co. uv. Stalcup (Tex.
Civ. App.), 167 S. W. 279, writ of er-
ror denied in 170 S. W. xviii, no op.

“Further following this testimony by
stating that conductors received $45 or
$50 per month more pay than a brake-
man. Appellant objected on the
ground that the question of promotion,

Co.

or chance of promotion of an employee
who is killed or injured, when offered
as a basis of damages, is speculative,
contingent, and remote, and should not
be taken into consideration for meas-
uring damages. This character of tes-
timony has been admitted and allowed
in this state in reference to the de-
ceased employee’s future expectations.”
Ft. Worth, etc., R. Co. v. Stalcup (Tex.
Civ. App.), 167 S. W. 279, 287, writ of
error denied in 170 S. W. xviii, no op.

18. Ft. Worth, etc. R. Co. v. Stal-
cup (Tex. Civ. App.), 167 S. W. 279,
287, writ of error denied in 170 S. W.
xviii, no op.

19. McCoullough v. Chicago, etc., R.
Co., 160 Iowa 524, 142 N. W. 67, 47
L. R. A. N.S. 23.

20. McCoullough v. Chicago, etc., R.
Co., 160 Iowa 524, 142 N. W. 67, 47 L.
R. A. N.S. 23; Irvin v. Southern R.
Co., 164 N. C. 5, 80 S. E. 78, 49 L. R.
A., N. S., 810, Ann. Cas. 1915D, 54.

21. Irvin v. Southern R. Co., 164 N.
C. 5, 80S. E. 78. 49 L. R. A, N. S., 810,
Ann. Cas. 1915D, 54.
321 EVIDENCE. § 158
indicating the moral training and discipline and influence which would have
been received from him by his children, is proper evidence to be considered
by the jury in determining the pecuniary damages occasioned by his death.??
In an action to recover damages for death where the widow of the deceased
was asked if, during the preceding five years, her father-in-law had not
contributed to her support; if she could give any idea how much her hus-
band contributed; if she had not kept house for her father-in-law, her child
living with her, and he paying the bills; if for the last two or three years
prior to her husband’s death the relations between herself and her hus-
band had not been unpleasant; if just prior to his death the sub-
ject of divorce had not been discussed between them; and if it were not
a fact that his insurance policies were made payable to his father.
All these questions were upon objection excluded, but improperly excluded.
They were distinctly relevant, as bearing upon the pertinent inquiry as to
the extent of the pecuniary benefits reasonably to have been expected by
her, had her husband lived, of which she had been deprived by his wrongful
death. There was no better way of judging future expectation than by past
experience, and few lines of inquiry could well be more illuminating as to
what of pecuniary or material worth a wife might reasonably hope for from
her husband, consistent with his means and ability, than one which dis-
closed the character of their relations and feelings towards each other.?8

And generally in determining pecuniary loss sustained, it is proper to
take into consideration the earning capacity, age, health, habits, character,
occupation, expectancy of life and mental and physical disposition to labor
of the deceased.24 Where the deceased left a widow and daughter about
17 years of age, evidence is admissible to show the daughter an invalid,
unable to care for herself and that her father had been attentive to her
wants and provided for her necessities and her comfort, as this had a
tendency to show her actual pecuniary loss resulting from her father’s
death.25. Where the death of such injured employee is the basis of the
action, any standard table of mortality reasonably authenticated, covering
the class of persons to which deceased belonged, is admissible in evidence
on the question of the quantum of damages recoverable, and is not in-

22. White v. Central, etc, R. Co.,
87 Vt. 330, 89 Atl. 618, affirmed in 35
S. Ct. 865,

23. Expectation of pecuniary bene-
fits—Farley v. New York, etc, R.
Co., 87 Conn. 328, 87 Atl. 990.

24. Louisville, etc., R. Co. v. Fleming
(Ala.), 69 So. 125, 128; Louisville, etc.,
R. Co. v. Holloway (Ky. App.), 181 S.
W. 1126.

Continuance of contributions after
majority—In McCoullough v. Chicago,
etc, R. Co., 160 Iowa 524, 142 N. W.
67, 47 L. R. A., N. S., 23, where it
is said: ‘Where recovery is claimed

Fed Act—21

for the benefit of parents for the death
of a child, it is material to show
whether the decedent was a minor or
adult. If a minor, the question
whether his services during the re-
maining years of his minority would
have been pecuniarily valuable to his
parents may be inquired into as affect-
ing the measure of damage. If the de-
cedent was adult, then this question is
eliminated.”

25. Evidence that daughter invalid.
—Lynch wv. Central, etc., R. Co. (Vt.),
95 Atl. 683.
§§ 158-159 FEDERAL EMPLOYERS LIABILITY ACT. 322

competent evidence because the injured employee, a freight train conduc-
tor, was not, when so employed, insurable in some particular insurance
company.26 But in an action by a widow, for herself and minor children,
for the negligent killing of the husband and father, evidence that the widow
is engaged to be married again is irrelevant and inadmissible,?? as is evi-
dence of the receipt of insurance money, as it would effect the amount of
damages, 28 but evidence that a husband and wife are separated is admis-
sible to mitigate the damages.2® And as no provision seems to be included
or intended by the act to compensate for the expenses of burial, therefore
the testimony of funeral charges received by the trial court under defend-
ant’s objection, is erroneous.?°

§ 159. Evidence on Cross-Examination.—The manner of cross-ex-
amination of a witness is very largely a matter which must be left to the
sound discretion of the trial judge, which will not be held for reversible er-
ror except when palpably abused. So where the court permitted the
plaintiff to ask a medical expert witness “Do you want to leave the jury
under the impression that the plaintiff is ‘faking’? is held harmless, where
the witness was not treated with indignity and it is not seen how the de-
rendant could be prejudiced by asking if a witness intended to disparage
the plaintiff.32

In an action where the negligence claimed was a defective engine, and a
witness testified that he understood that another railroad was discarding
engines of this type, it was not permissible to show by him that he had no
knowledge of such being a fact, since he had only testified to his under-
standing of the matter and the source thereof.33 Nor is it objectionable to
permit an expert witness of the defendant’s to testify on his cross-examina-
tion that it was customary for employees to go between cars to adjust the
knuckles of couplers on which the pin-lifting rod would not work, even
though the defendant had introduced in evidence a rule forbidding em-

26. Mortality tables—Culp v. Vir-
ginian R. Co. (W. Va.), 87 S. E. 187.

27. Widow’s engagement to remarry.
—Jones v. Kansas, etc., R. Co., 137 La.
178, 68 So. 401.

28. Receipt of insurance money.—
Brabham v. Baltimore, etc., R. Co., 136
C. C. A. 117, 220 Fed. 35.

29. Separation of husband and wife.
—Fogarty v. Northern Pac. R. Co., 85
Wash. 90, 147 Pac. 652.

80. Funeral expenses.—Collins  v.
Pennsylvania R. Co., 163 App. Div.
452, 148 N. Y. S. 777.

31. Evidence on cross-examination.
—Ferebee v. Norfolk, etc., R. Co., 167
N. C. 290, 83 S. E. 360, affirmed in 35
S. Ct. 781.

The practice of the trial judge taking
charge of a witness, and conducting a

long cross-examination, is not to be
commended. Still it is the duty of the
judge to see that the facts are brought
out; and, unless it is apparent that
there has been an abuse of discretion,
and that the trial judge has shown his
belief in the untruthfulness of the wit-
ness, or has given an intimation of his
opinion on the facts, it is not preju-
dicial error. St. Louis, etc., R. Co. v.
Clampitt (Okla.), 154 Pac. 40, citing
New York Transp. Co. v. Garside, 85
C. C. A. 285, 157 Fed. 521; Berwind-
White Coal Min. Co. v. Firment, 95
C. C. A. 1, 170 Fed. 151.

32. Berebee v. Norfolk, etc., R. Co.,
167 N. C. 290, 83 S. E. 360, affrmed in
35 S. Ct. 781.

33. Niles v. Central, etc, R. Co., 87
Vt. 856, 89 Atl. 629.
323 EVIDENCE. §§ 159-160
ployees going between moving cars to affect a coupling, a violation of
which it contended was the proximate cause of the plaintiff’s injury.%4

The party on whose behalf a witness is called has the right to restrict his
cross-examination to the subjects of his direct examination, and a violation
of this right is reversible error. If the cross-examiner would inquire of
the witness concerning matters not opened on the direct examination, he
must call him on his own behalf.25 However, it is within the discretion
of the trial judge to permit an expert witness to testify to new matter on
his cross-examination.3¢

Witnesses must not be asked questions the answer to which calls for
an opinion. Thus it is improper to ask a witness if his having an engine
at a particular place was a proper and regular movement for it to make; if
it violated any rules of the company; or conformed to any rules which pre-
vailed.7

§§ 160-164. Sufficiency of Evidence—§ 160. Generally.—The
judge’s function is to superintend and direct the course of trial, and the
jury are to determine the ultimate facts in issue; but, when the facts dis-
closed by the testimony clearly cannot under the law support a verdict, it
would be useless to submit it to a jury.28 So unless the evidence is suff-
cient to warrant a reasonable jury in basing a verdict upon: it, a nonsuit
should be granted or the verdict directed, and when the evidence is suscepti-
ble of only one reasonable inference, the court must declare what that in-
ference is, as matter of law.3® And should the case have been submitted
to the jury upon evidence insufficient to sustain the verdict, a judgment
should be directed notwithstanding the verdict.4° But on a motion to direct
a nonsuit all the evidence should be considered in the most favorable light in
order to sustain the plaintiff's case,41 and if there is any legal evidence to

34. Moore v. St. Joseph, etc, R. Co.
(Mo.), 186 S. W. 1035.

35. New Matter—lIllinois Cent. R.
Co. v. Nelson, 128 C. C. A. 525, 212
Fed. 69.

36. Tilghman v. Seaboard, etc, R.
Co., 167 N. C. 163, 83 S. E. 315, 1090,
reversed on other grounds in 35 S. Ct.
653.

37. Questions calling for opinion.—
Louisville, etc, R. Co. uv. Fleming
(Ala.), 69 So. 125.

38. Sufficiency of evidence—Direct-
ing verdict or non-suit.—Bay v. Mer-
rill, etc., Lumber Co. (D. C.), 211 Fed.
717, 719; Nordgard v. Marysville, etc.,
R. Co. (D. C.), 211 Fed. 721.

“The contention of the plaintiff that
the court in granting judgment on the
motion for a directed verdict violated
the seventh amendment to the consti-
tution has no merit. The Supreme
Court of the United States in an un-
broken line of decisions has held that,

where the evidence produced at the
trial was not sufficient to sustain a
verdict, it is the duty of the court not
to submit the matter to the jury. This
is expressly sustained in Slocum v.
New York Life Ins. Co., 228 U. S. 364,
57 L. Ed. 879, 33 S. Ct. 523, Ann. Cas.
1914D, 1029, cited by the plaintiff, and
this rule is adhered to by this court in
Bay v. Merrill, etc., Lumber Co. (D.
C.), 211 Fed. 717.” Nordgard v.
Marysville, etc, R. Co. (D. C.), 211
Fed. 724, 722.

89. Oklahoma—St. Louis, etc., R. Co.
v. Clampitt (Okla.), 154 Pac. 40.

South Carolina—Howell v. Atlantic,
etc., R. Co., 99 S. C. 417, 83 S. E. 639.

West Virginia—Culp v. Virginian R.
Co. (W. Va.), 87 S. E. 187.

40. Marshall v. Chicago, etc., R. Co.
(Minn.), 157 N. W. 638.

41. Sandidge v. Atchison, etc., R.
Co., 113 'C. C. A. 653, 193 Fed. 867.
§§ 160-161

FEDERAL EMPLOYERS LIABILITY ACT.

324

sustain the case, the nonsuit or directed verdict should be refused.*?

Whether or not the evidence is sufficient to sustain or rebut any fact nec-
essary to make ‘out a case is considered. in treatment of such facts, 4? ex-
cept interstate commerce and negligence which are noted below.

§ 161. Of Interstate Commerce.—The plaintiff carrying the burden
of proof of interstate commerce does not sustain the same by showing that
a railroad is engaged in interstate commerce without showing that he was

actually engaged therein.*4

And where the evidence does not show the

employee (decedent) to have been engaged in interstate commerce in an
action under the act, the jury should be instructed to find for the defend-

ant.45

42. United States—Seaboard, etc.,
Railway v. Koennecke, 239 U. S. 352,
36 S. Ct. 126; Southern R. Co. v. Lloyd,
239 U. S. 496, 36 S. Ct. 210.

North Carolina.—Ridge v. Norfolk,
etc., R. Co., 167 N. C. 510, 83 S. E.
762; Gray v. Southern R. Co., 167 N.
C. 433, 83 S. E. 849, reversed on the
facts in 36 S. Ct. 538.

Oklahoma.—wWichita Falls, etc. R.
Co. v. Puckett (Okla.), 157 Pac. 112.

South Carolina—Bennett v. Southern
Railway, 98 S. C. 42, 79 S. E. 710, af-
firmed in 34 S. Ct. 566; Camp wv. At-
lanta, etc., R. Co., 100 S. C. 294, 84 S.
E. 825; Koennecke v. Seaboard, etc.,
Railway, 101 S. C. 86, 85 S. E. 374,
affirmed in 36 S. Ct. 126.

“Was there any evidence of negli-
gence to go to the jury? There were
several specifications of negligence,
but, if there was any evidence to sus-
tain one of them, the case should have
been sent to the jury. The respond-
ent’s argument states: ‘The circuit
judge directed a verdict in this case
for the defendant on the ground that
the plaintiff was outside of the scope
of his employment when injured, and
there was no negligence.” The com-
plaint alleged plaintiff was instructed
by defendant, its agents and servants,
having authority to give such orders,
to assist in loading the car. There was
evidence to sustain the allegation. It
is true that plaintiff alleged ‘that it
was outside of the regular duties of
this plaintiff,’ but there was evidence
that the officer who gave the order
was authorized to require any work
outside of regular duties. There was
evidence that, while the gondola car
was safer than a flat car in transporta-
tion of lumber, it was dangerous in
loading. The injury was alleged to
have been done in the loading. There
was therefore some evidence of neg-
ligence, and the case should have been

Where a case is submitted to the jury permitting them to find lia-

sent to the jury.” Camp wv. Atlanta,
etc., R. Co., 100 S. C. 294, 84 S. E. 825.

43. Sufficiency to support particular
fact.—See ante, “Contributory Negli-
gence,” Chap. X; “Assumption of
Risk,’ Chap. XI; “Agreement in
Contravention of Act,’ Chap. VI;
“Beneficiaries under Act,’ Chap. XIV;
post, “Damages,” Chap. XXVI.

44. Sufficiency to show interstate
commerce.—Gordon v. New Orleans,
etc, R. Co. 135 La. 137, 64 So. 1014;
Chicago, etc., R. Co. v. McBee (Okla.),
145 Pac. 331.

“While this court may properly, in
certain cases, take judicial cognizance
of the fact that any one of the many
great trunk lines of railway extending
through the various states is engaged
in interstate commerce, yet the fact is
equally as notorious and as much the
subject of judicial notice that every
such railway is also engaged in intra-
state traffic; and clearly it is not a
matter of such general knowledge as
to dispense with proof that any spe-
cific portion of the equipment or any
particular employee of such railway is
engaged in interstate, rather than in-
trastate, 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 passen-
ger train between points in this state.”
Chicago, etc., R. Co. v. McBee (Okla.),
145 Pac. 331, 333.

45. Kentucky.—Chesapeake, etc., R.
Co. v. Shaw (Ky. App.), 182 S. W.
653, 657.

New_Jersey—Moran v. Central R.
Co. (N. J.), 96 Atl. 1023.

West Virginia—McKee v. Ohio, etc.,
R. Co. (W. Va.), 88 S. E. 616.
325

EVIDENCE. § 161

bility under either the state or federal law, and a general verdict is re-
turned, it is proper to set it aside when there is no evidence to sustain the
case under the federal act.46

So the plaintiff does not sustain the burden of proof of interstate service
by showing that he was engaged in loading rails where it is not shown
whether the rails were old or new, where they came from, where they were
to be taken, or where the car was to go when loaded. Because the defend-
ant was authorized to, and did at times, engage in interstate commerce, and
because the plaintiff was employed in loading a flat car with rails which had
been used or were to be used in the repair of its roadbed in another state,
he was not necessarily engaged in interstate commerce within the meaning
of the act.47 And evidence that upon one freight car of a train, at some
time by some one unknown, there had been written with chalk the name of
a certain station, and that destinations were sometimes thus indicated, is
not sufficiently probative to warrant a finding that such car was then being
moved to such station, which would make it a car used in interstate com-
merce.48 And the fact that there were cars being used in interstate com-
merce in the yard of an interstate carrier in which an employee was work-
ing as a watchman or detective, is insufficient to show that he was engaged
in interstate commerce, when at the time of his injury he was particularly
employed in inspecting a cut of cars, none of which were shown to have
been engaged in interstate commerce.4® The employer does not sustain
the burden of proof so as to have the federal act applied, where it is only
shown that the employee every night for about 20 minutes, at which time
he was injured, cleaned up the coal in a basement room and loaded
it on conveyors which carried it to a bin, from which it was subsequently
taken and weighed and placed in other bins from which it was transferred
to locomotives.®® Where the defendant contended that the federal act, and
not the state law should govern the case, it is held, that the testimony of a
witness that he thought, without accurate means of knowledge, that some
of the cars of the train were loaded with coal from Tennessee or Virginia,
js not sufficient to constitute legal evidence of interstate commerce.®!

On the other hand plaintiff has established that he was engaged in inter-
state commerce at the time of his injury, where there was evidence tending
to show that the freight train, on which he was injured, was engaged in
hauling two freight cars which were loaded with lumber destined to be
shipped to a terminal near Tampa, Florida, and there unloaded, and to be
afterwards shipped by schooner to a point in the state of New Jersey.®*

46. Cantin v. Glen Junction Transfer 50. Zavitovsky v. Chicago, etc, R.

Co. (N. H.), 96 Atl. 303.

47. Tsmura v. Great Northern R.
Co., 58 Wash. 316, 108 Pac. 774.

48. Barker v. Kansas, etc., R. Co., 88
Kan. 767, 129 Pac. 1151, 43 L. R. A,
N. S., 1121.

49. Chicago, etc., R. Co. v. Industrial
Board (Ill.), 113 N. E. 80.

Co., 161 Wis. 461, 154 N. W. 974.

51. Ingle v. Southern R. Co., 167 N.
C. 636, 83 S. E. 744.

52. Evidence held to show engage-
ment in interstate commerce. — Sea-
board, etc., R. Co. v. Moore, 228 U. S.
433, 57 L. Ed. 907, 33 S. Ct. 580.
326

§ 161 FEDERAL EMPLOYERS LIABILITY ACT.

And a locomotive tender filled by decedent was sufficiently identified as the
one attached to an interstate train, where the number of the latter was 1968,
and an employee authorized to keep a record of each engine and tender sup-
plied with coal testified that this was the number of that in connection with
which deceased was killed. In the absence of any evidence to the contrary,
the jury would not have been warranted in rejecting this identification as
insufficient.5? So too, where the evidence shows that the plaintiff's intestate,
a switchman, was employed in switching cars in one of the defendant’s yards,
putting them into strings of cars for transportation by boat into another
state, the only transportation by railroad out of the state being such as was
given by the switching crew, and the cars being destined for immediate in-
terstate transportation, a finding that he was employed in interstate com-
merce is justified.54

And where the defendant by plea alleges that the parties were’ engaged
in interstate commerce and this is admitted by the replication of the plain-
tiff; this is a judicial admission by both, which evidence is unnecessary to
establish or admissible to dispute.>5

Should the evidence establish that the plaintiff or defendant is engaged
indiscriminately in interstate and intrastate commerce, and does not show
definitely the one or the other, it is held that this is insufficient to show the
parties were engaged in interstate commerce. There being no presumption
either way, and hence the plaintiff must fail for want of proof.°® But as
these facts lie more within the knowledge of the defendant, the better rule
would seem to be established by Pittsburgh, etc., R. Co. uv. Glinn, 135 C. C.
A. 46, 219 Fed. 148, in which it is said:

“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.”

Where the evidence shows the defendant an intrastate railroad to be en-
gaged in interstate commerce to the extent of four-fifth or more of its
business, and that a large amount was done on the day of an accident, but
does not show that at the particular time it was engaged in interstate com-
merce, no other inference than that it was so engaged at that time could
be drawn from such evidence.57 Where the records of a freight train, on

53. Armbruster v. Chicago, etc., R.
Co., 166 Iowa 155, 147 N. W. 337.

54. Hurley v. Illinois Cent. R. Co.
(Minn.), 157 N. W. 1005.

55. Same—Effect of admission in
pleadings.—White v. Central, etc, R.
Co., 87 Vt. 330, 89 Atl. 618, affirmed in
35 S. Ct. 865. See, also, Chicago, etc.,
R. Co. v. Cosio (Tex. Civ. App.), 182
S. W. 83.

56. Same — Showing indiscriminate
service—Knowles v. New York, etc.,
R. Co., 164 App. Div. 711, 150 N. Y.
S. 99; Hench v. Pennsylvania R. Co.,

246 Pa. 1, 91 Atl. 1056, L. R. A. 1915D,
557,

And where the defendant was en-
gaged in both interstate and intrastate
commerce, and there was no evidence
that the cars, about which an employee
was working when injured, were being
used in interstate commerce, an ac-
tion under the act must fail. ‘Cantin
vw. Glen Junction Transfer Co. (N. H.),
96 Atl. 303.

57. Presumption that business inter-
oa v. Sheldon (Iowa), 154 N.

V. 499.
327

EVIDENCE. §§ 161-162

which the deceased was employed when killed, would have shown whether
or not it was engaged in interstate commerce, but was found to have been
lost and no one admitted knowledge of its contents, evidence, that the train
consisting of fifty-two cars all loaded with freight of all kinds and from all
points, taken unaltered between two points across a state, is sufficient to
sustain an allegation that the train was engaged in interstate commerce and
support the jury’s finding to that effect.58 If the evidence of interstate com-
merce is in conflict, it may be a question for the jury.5® And where a yard
conductor who had commenced to move two loaded cars coming from with-
out the state to a private switch track connecting with the yard but finding
it necessary to remove two empty cars from the switch, uncoupled the engine
and was injured while engaged in the removal, whether or not he was en-
gaged in interstate commerce is properly submitted to the jury and the court
could not charge that he was not so engaged and therefore could not re-
cover.69 But where there was no evidence that an engine around which an
employee was working at the time of the accident had ‘been or was about
to be used in interstate commerce, but the evidence was that it was the en-
gine of a local freight, and while it might have pulled some cars destined
for points beyond the state line, there was no evidence that it actually did
so, there was no question for the jury on that point, and it cannot be con-
tended that the claim sued for arose under, or was controlled by, the federal
act.61

§ 162. Of Negligence of Defendant.—The evidence of negligence
need not be direct in order to sustain the verdict, or require submission of
the question to the jury; but it must be sufficient to show that it caused
the injury and not that it might have caused it.68 Thus a collision itself

58. Lynch v. Central, etc, R. Co. had alighted in the performance of a

(Vt.), 95 Atl. 683.

59. Question for jury.—Pennsylvania
Co. v. Donat, 239 U. S. 50, 36 S. Ct.
4; Chicago, etc, R. Co. v. Felder
(Okla.), 155 Pac. 529.

60. Pennsylvania Co. v. Donat, 239
U.S. 50, 36S. Ct. 4.

61. Chicago, etc. R. Co. 7.
(Okla.), 155 Pac. 529, 531.

62. Sufficiency of evidence of negli-
gence—Direct evidence not essential.
—Georgia—Alabama, etc, R. Co. v.
Tidwell (Ga.), 88 S. E. 939.

Towa.—Basham v. Chicago, etc. R.
Co. (Iowa), 154 N. W. 1019.

Minnesota.—Hurley v. Illinois Cent.
R. Co. (Minn.), 157 N. W. 1005.

Montana. — Doichinoff v. Chicago,
etc. R. Co. (Mont.), 154 Pac. 924.

South Carolina—Mulligan v. Atlan-
tic, etc, R. Co. (S. C.), 88 S. E. 445.

Where the evidence tends to show
that a brakeman was killed by falling
under a moving train, from which he

Felder

duty, and there was evidence that the
platform on which he alighted was de-
fective in a manner that might have
caused him to fall under the train, the
question was properly left to the jury,
although there was no direct evidence
that the condition of the platform
caused him to fall. St. Louis, etc., R.
Co. v. Clampitt (Okla.), 154 Pac. 40.

63. Evidence leaving negligence in
conjecture.—Hurley v. Illinois Cent. R.
Co. (Minn.), 157 N. W. 1005; Hull v.
Virginian R. Co. (W. Va.), 88 S. E.
1060.

Where it is a fair inference that an
unexpected jerk coming from the neg-
ligent’ giving of a stop signal by a
conductor caused the death of a brake-
man, the evidence is not left in con-
jecture. Thompson v. Minneapolis,
etc.,, R. Co. (Minn.), 158 N. W. 42.

“When the two merchandise cars
were kicked against the standing cars
on track 10 [where deceased was work-
§ 162 FEDERAL EMPLOYERS’ LIABILITY ACT. 328

might seem to prove negligence on the part of some one or more of defend-
ant’s servants, who were in charge of one or the other of the colliding
trains, but does not definitely prove actionable negligence. The accident
may have been due wholly to the negligence of deceased; or it may have
been a pure accident. So in an action under the act for the negligent killing
of a brakeman, the happening of a rear-end collision between a train stand-
ing on the main track and one in motion, on a dark and foggy night, is not
of itself sufficient to prove negligence on the part of the engineer of the
moving train, although he knew another train was ahead of him, but did
not know it had stopped, when the undisputed testimony of witnesses shows
he was running not over 12 or 15 miles an hour, and was keeping a careful
lookout and was not signaled to stop, and did not see the lights on the rear
end of the standing train, on account of a short curve and the darkness and
fogginess of the night, until he was so close as to make it impossible to stop
his engine in time to avoid the collision, he having a right, under the rules
of defendant company, to expect a signal in time to stop, in case the fore-
most train should stop on the main line.%4

However, evidence of a railroad engineer having been killed when oper-
ating a rotary snow plow, by the overturning of his engine, due to the sup-
ports of a wooden bridge being burned, is sufficient to show actionable neg-
ligence on the part of defendant.2® And where a car was not under con-
trol in coming down the main line track but was ordered diverted by a train
dispatcher and was derailed, this constituted negligence for which the de-
fendant was liable, it not being shown that there was any emergency re-
quiring such action and that the car could have been kept on the main line
of the track which was clear for 20 miles and within which distance it might
have been stopped.®®

The contention that the evidence did not show negligence on the part of
a railroad company sufficient to sustain a verdict, and a motion to direct

ing] the deceased was heard to scream.
He was found between the two rails,
lying on his face, and partly under the
north end of the car southerly of the
two northerly ones. The defective
couplers were on these two cars. He
was crushed in and about the hip, and
above it, and death resulted in a few
minutes. His lighted lantern was
standing on the westerly side of the
track as if he had put it there. He had
a pencil in his hand. In his line of
work he took the numbers of the cars,
standing or passing on the west side
of the track in doing so. It was cus-
tomary for the switching foreman,
working as the deceased was, to exam-
ine the couplers, fix them so that they
would automatically couple, and con-
nect the air hose. It is the theory of
the plaintiff that the deceased was be-

tween the two cars, in the discharge of
his duties, either opening the knuckles,
or tending to the air line, and was
caught between the two uncoupled cars
when those from the south were
kicked in. A jury, proceeding by fair
inference, and without indulging in
conjecture, might have so found. Such
a finding would not be merely specu-
lative.” Hurley wv. Illinois Cent. R.
Co. (Minn.), 157 N. W. 1005, 1008. See
post, “Under Doctrine of Res Ipsa
Loquitur,” § 163.

64. Hull v. Virginian R. Co.
Va.), 88 S. E. 1060.

65. Evidence held to show negli-
gence.—Copper River, etc., R. Co. v.
Reed, 128 C. C. A. 39, 211 Fed. 111.

66. Sandidge v. Atchison, etc. R.
Co., 113 C. C. A. 653, 193 Fed. 867.

CW.
329 EVIDENCE. § 162

a verdict for the defendant is not sustained, where the proof shows that the
plaintiff was injured in a collision due to the negligence of an employee of
the company in issuing a “clearance card” to a train behind, which was
traveling faster than the train upon which plaintiff was employed, and which
also had a leaky cylinder the steam from which obscured the view of the
train ahead.§7

In a case under the doctrine of last clear chance there was not in the rec-
ord any direct evidence that an employee was actually discovered by the
enginemen in time to avoid the accident, but it had been made to appear
that he was walking upon the railroad track in broad daylight, 200 feet or
more in advance of the locomotive, that he was apparently unaware of dan-
ger, that the view from the locomotive was entirely unobstructed, that the
enginemen were at their respective posts of duty on the locomotive, and
were keeping a lookout ahead in his direction, that the locomotive could
have been stopped within from 10 to 30 feet, considering the speed at which
it was moving; no one would question the right of a jury to say that his
position was discovered in ample time to avoid striking him, even in the
face of the positive testimony of the’ enginemen that they did not see him
at all until he was struck.*8 But in Southern R. Co. v. Gray (U. 5.),®° it
is held that as an engineer is not under any duty to stop his train immedi-
ately upon perceiving a brakeman, sent back to protect a train ahead, but
that he had a right to assume that he was on guard; and where there was
no evidence to show that the engineer could have seen him a single moment
before he did, or omitted thereafter to do all within his power to protect
him, the railroad was not liable.

The plaintiff is not required to prove the date of the injury, the essential
thing he is called upon to establish is the fact of injury and generally the
date upon which it was received is an immaterial detail. But should he
undertake to establish the fact of injury by proof of injury under certain
circumstances and conditions, among which were the circumstances of time
and place, these circumstances thus at once became material in a determina-
tion of the fact of injury in issue. Disproof of injury at the time and place
as testified, in the absence of proof indicating that the claimed injury was
received at some other time or place, was disproof which left the plaintiff
without proof of the essential fact of injury. Thus where the evidence
showed that the plaintiffs service was confined between two dates it is
proper for the court to instruct that the injury must have occurred in that
time, otherwise the verdict might be based on a finding that the accident
happened on some day concerning which there was no evidence introduced.7°

67. Central Vermont R. Co. v. White, 69. 36 S. Ct. 558, 559.
1238 U. S. 507, 59 L. Ed. 1433, 35 S. Ct. 70. Time of injury—Hubert v. New
865. York, etc., R. Co. (Conn.), 96 Atl. 967,

68. Under doctrine of “last clear 973.
chance.”—Doichinoff v. Chicago, etc.,
R. Co. (Mont.), 154 Pac. 924.
§§ 162-163 FEDERAL EMPLOYERS’ LIABILITY ACT. 330

Where the plaintiff makes out a prima facie case by showing negligence
en the part of the defendant in leaving a switch unlocked and partially open
from which a derailment occurs, evidence of the defendant of the care gen-
erally exercised to keep switches closed and that a lone engine had just
previously passed the switch without accident is not sufficient to rebut the
prima facie case, especially in the absence of evidence that the switch had
been tampered with by strangers.71 And where an employee was killed
while on the tracks of a railroad company and the complaint charged a fail-
ure of duty in not seeing and warning him, the allegation in defendant’s
answer that the employee stepped on the track immediately in front of the
locomotive, is not new matter which is admitted by the plaintiff’s failure to
reply.7?

§ 163. Under Doctrine of Res Ipsa Loquitur.—The doctrine of res
ipsa loquitur applies, in proper instances, to an action brought under this
act.73 And as applied to the evidence it does not relieve the plaintiff of the
burden of proof required of him, the effect being only that sufficient evi-
dence has been introduced to take the case to the jury.7+

The Supreme Court of the United States has not decided otherwise in
Patton v. Texas, etc., R. Co.75 It has recognized the doctrine as disputable,"®

71. Sufficiency to rebut prima facie
case.—Basham v. Chicago, etc., R. Co.
(Iowa), 154 N. W. 1019.

72. Admission by failure to reply.—
Doichinoff v. Chicago, etc, R. Co.
(Mont.), 154 Pac. 924.

73. Under doctrine of res ipsa lo-
uitur.— Baltimore, etc, R. Co. vw.

mith (Ky. App.), 184 S. W. 1108;
Lile v. Louisville, etc., R. Co., 161 Ky.
347, 170 S. W. 936; Ridge v. Norfolk,
etc., R. Co., 167 N. C. 510, 83 S. E. 762.

74. Ridge v. Norfolk, etc., R. Co., 167
N. C. 510, 83 S. E. 762.

75. 179 U. S. 658, 45 L. Ed. 361, 21
S. Ct. 275.

“Some text-writers state that the
Supreme Court of the United States
does not recognize this doctrine in ac-
tions between master and servant, and
the case of Patton v. Texas, etc. R.
Co., 179 U. S. 658, 45 L. Ed. 361, 21
S. Ct. 275, is cited as authority for this
contention. The reference in the opin-
ion to this doctrine is obiter, as will be
seen by a careful consideration of the
facts in that case. But even if the
court did so hold in that case, the rea-
son for depriving a plaintiff of the

benefit of the doctrine, when the
plaintiff happens to be a_ servant
of the defendant, no longer, exists.

Those cases which deny the appli-
cability of the doctrine in an action
by a servant against his master pro-
ceed upon the theory that the in-

jury may be referred to the negligence
of a fellow-servant, or to contributory
negligence of the plaintiff, with just
as much reason as to the negligence
of the master. Under the employers’
liability act the defense of the fellow-
servant doctrine is excluded, as is that
of contributory negligence to some ex-
tent; hence the reason for the law, as
thus stated, having ceased, the rule
ceases. In the recent case of Sweeney
v. Erving, 228 U. S. 233, 57 L. Ed. 815,
33 S. Ct. 416, already cited by us, the
doctrine of res ipsa loquitur is recog-
nized by the Supreme Court of the
United States in an action for dam-
ages for personal injuries brought by
a patient against q physician in the use
of the X-ray, and the question of con-
tributory negligence might become in-
velved in such a case.” Ridge v. Nor-
folk, etc., R. Co., 167 N. C. 510, 83 S.
E. 762. See, also, Baltimore, etc. R.
Co. v. Smith (Ky. App.), 184 S. W.
1108, 1113.

76. Great Northern R. Co. v. Wiles
(U. S.), 36 S. Ct. 406, reversing 147
N. W. 427.

In Great Northern R. Co. v. Wiles
(1, $.), 36 S. Ct. 406, reversing 147
N. W. 427, which held that the pulling
out of a drawbar of a freight train
affords a proper basis for the applica-
tion of the doctrine of res ipsa lo-
quitur, the United States Supreme
Court holding that the doctrine has no
331 EVIDENCE. § 163

and that it was not error to give an instruction embracing it.77 In Southern
Railway v. Bennett, 233 U. S. 80, 58 L. Ed. 860, 34 S. Ct. 566, the court
Said:

“The first complaint is against an instruction to the effect that, if a serv-
ant is injured through defective instrumentalities, it is prima facie evi-
dence of the master’s negligence, and that the master ‘assumes the bur-
den’ of showing that he exercised due care in furnishing them. Of
course the burden of proving negligence in a strict sense is on the plain-
tiff 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 explanation was given, the plaintiff
had sustained the burden. The instruction is criticised further as if
the judge had said res ipsa loguitur—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 ap-
pliances which the company was hound 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 instruction 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 concerning
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.”

In the application of the doctrine two points are affirmatively settled:
(1) that the proof of the accident alone does not in all cases raise any pre-
sumption of negligence, but there must be independent evidence that it was
caused by some negligent act of the defendant;78 and (2), that the proof
cf an injury resulting from one of two causes, for one of which only the
defendant is liable, leaves the proof in conjecture and actionable negligence

‘Operation in a case where a train hav-
ing broken in two a rear brakeman
failed to go back to protect the train
which resulted in his death. The
breaking of the train created a condi-
tion which required action on the part
of the employee and the performance
of the duty which the rules enjoined
upon him and which would have been
averred had he obeyed them.
77. Southern Railway v. Bennett, 233
U. S. 80, 58 L. Ed. 860, 34 S. Ct. 566.
78. Proof of accident alone.—United
States—Midland, etc. R. Co. v. Ful-
gham, 104 C. C. A. 151, 181 Fed. 91.
Kentucky.—Lile v. Louisville, etc., R.
Co., 161 Ky. 347, 170 S. W. 936.
Oklahoma—St. Louis, etc., R. Co. v.
Clampitt (Okla.), 154 Pac. 40.
Texas—Ft. Worth, etc, R. Co. 2.
Stalcup (Tex. Civ. App.), 167 S. W.

279, writ of error denied in 170 S. W.
Xvili, no op.

Virginia—Atlantic, etc, R. Co. v.
Newton (Va.), 87 S. E. 618, 621.

Proof that an employee was injured
and no proof that he was negligent does
not necessarily fix liability on the em-
ployer. The injury may have been an
accident or mishap in which there was
no negligence. Papoutsikis v. Spo-
kane, etc. R. Co. (Wash.), 153 Pac.
1053.

Where a locomotive engine and
boiler and appurtenances were in the
exclusive custody and control of the
engineer and were being operated by
him, and an explosion occurs, the mere
happening of the accident does not
per se cast upon the defendant the im-
putation of negligence. Virginian R.
Co. v. Andrews (Va.), 87 S. E. 577,
580.
§ 163 332

FEDERAL EMPLOYERS LIABILITY ACT.

is not shown.79 It is thus expressed by Mr. Justice Brewer in Patton v.
Texas, etc., R. Co., 179 U. S. 658, 45 L. Ed. 361, 21 S. Ct. 275:

“First. That while in the case of a passenger the fact of an accident
carries with it a presumption of negligence on the part of the carrier,
a presumption which in the absence of some explanation or proof to
the contrary is sufficient to sustain a verdict against him, for there is
prima facie a breach of his contract to carry safely * * * a dif-
ferent rule obtains as to an employee. The fact of accident carries
with it no presumption of negligence on the part of the employer, and
it is an affirmative fact for the injured employee to establish that the
employer has been guilty of negligence. * * * Second. That in
the latter case it is not sufficient for the employee to show that the em-
ployer may have been guilty of negligence. The evidence must point
to the fact that he was. And where the testimony leaves the matter
uncertain and shows that any one of half a dozen things may have
brought about the injury, for some of which the employer is responsible
and for some of which he is not, it is not for the jury to guess between
these half a dozen causes and find that the negligence of the employer
was the real cause, when there is no satisfactory foundation in the tes-
timony for that conclusion. If the employee is unable to adduce sufh-
cient evidence to show negligence on the part of the employer, it is only
one of the many cases in which the plaintiff fails in his testimony, and
no mere sympathy for the unfortunate victim of an accident justifies
any departure from settled rules of proof resting upon all plaintiffs.”

It does not follow that, because it may appear from the testimony that an
injury may have been caused in one of two or more ways, that the jury may
not be allowed to determine in what way it was caused, if the facts and
circumstances in evidence warrant a reasonable inference that it was caused
in any way alleged in the complaint for which the master would be liable.
In such case the jury should be instructed, that their finding must not be
based upon surmise, conjecture, or speculation, but upon proof—reasonable
inferences from the evidence—and thereby that which is purely speculative
may be eliminated. Otherwise a plaintiff would be required to prove to a

79. Proof leaving case in conjecture.
—Pennsylvania R. Co. v. Knox, 134 C.
C. A. 426, 218 Fed. 748.

Where an employee was discovered
killed at a point where he assumed
the risk of an injury, but there was a
safe place on either side, to hold the
company liable would be to indulge in
speculation rather than in established
facts or legitimate inferences. Swart-
wood v. Lehigh, etc., R. Co., 169 App.
Div. 759, 155 N. Y. S. 778. '

In Culp v. Virginian R. Co. (W. Va.),
87 S. E. 187, a conductor was killed by
the failure of the brakeman to flag a
following train. The evidence showed
that the brakeman’s body was found,
without any marks of violence other
than would have been caused by his

fall, under a high bridge at the place
where the caboose of the forward
train stopped and stood at the time of
the collision. Upon this evidence the
court held that it was as reasonable to
suppose that he had started back to
flag the train and fallen from the ca-
boose and was killed, as it was to sup-
pose that he had been knocked from
the bridge by the following engine or
struck by it while standing on the ca-
boose. And upon this state of the evi-
dence, the plaintiff having failed to
show that the collision resulted from
the neglect of the flagman to go back
and flag the train, he had not sus-
tained the burden of proof and a re-
covery could not be had.
333

EVIDENCE. § 163

certainty the cause of injury, if evidence could be adduced suggesting the
possibility of some other cause than that alleged. But in civil actions the
law does not require proof to a certainty, but it is enough if the evidence
is sufficient to satisfy the mind and conscience of the court and jury of the
reasonable probability of the truth of the allegations.®°

But when the particular thing causing the injury has been shown to be
under the management of the defendant or his servant, and the accident is
such as in the ordinary course of things does not happen, if those who have
the management use proper care, it affords reasonable evidence in the ab-
sence of explanation that the accident arose from a want of care.81 Thus
proof of a collision is of itself prima facie evidence of negligence; §? and
where an engineer was killed due to his engine being derailed by an unlocked
and partially open switch and it was contended that negligence on the part
of the defendant was not shown sufficiently to present the question to the

jury, in Basham v. Chicago, etc., R. Co. (Iowa), 154 N. W. 1019, 1022, the
court said:

“Even if we should disregard matters of fact upon which there is a con-
flict in the evidence, the circumstances upon which there is no dispute—
that the switch, upon the proper placement and maintenance of which
depended the safety of every passing train, was in the exclusive charge
and control of the defendant and its agents; that it stood unattended,
unlocked, and open in a position to create a death trap into which an
approaching train freighted with living persons was liable to plunge;
that the intestate’s engine was in this manner derailed, and he himself
fatally injured; that accidents of this nature do not ordinarily occur if
due care be used by the railway company, its agents and employees;
and that defendant was in duty bound to exercise all reasonable care
to furnish a safe track over which to operate its engines—make up a
record from which a jury may properly draw an inference that there
was a breach of defendant’s duty in this respect. In other words, it
makes a case for the application of the maxim res ipsa loquitur as the
same is now generally understood and applied, and constitutes a prima
facie showing sufficient to sustain a verdict in plaintiff’s favor. This
rule is entirely consistent with the fundamental proposition of the law
of negligence that in order to recoyer on account of the want of due
care on the part of a defendant the plaintiff assumes the burden of
proof, and that proof of the mere fact of his injury is insufficient to

80. Proof to the exclusion of all and was injured by the roof of the

other causes not necessary.—Steele 7.
Atlantic, etc., R. Co. (S. C.), 87 S. E.
639, 643.

81. Accident when employer in ex-
clusive control. Ridge v. Norfolk, etc.,
R. Co., 167 N. C. 510, 83 S. E. 762;
Ft. Worth, etc., R..Co. v. Stalcup (Tex.
Civ. App.), 167 S. W. 279, 282, writ of
error denied in 170 S. W. xviii, no op.

When there is evidence that an em-
ployee of a railroad company was on
the roof of a box car in a train of
sixteen cars in the course of his duties,

car blowing off, in a wind so slight
that he had stood thereon without diffi-
culty, and that the roofs of the other
cars remained intact, the doctrine ap-
plies. Ridge v. Norfolk, etc., R. Co.,
167 N. C. 510, 83 S. E. 762.

82. Tilghman v. Seaboard, etc. R.
Co., 167 N. C. 163, 83 S. E. 315, 1090,
reversed on other grounds in 35 S. Ct.
653; Duvall v. Seaboard, etc., Railway,
152 N. C. 524, 67 S. E. 1008, dismissed
for want of jurisdiction in 32 S. Ct.
790.
§§ 163-164 FEDERAL EMPLOYERS LIABILITY ACT. 334

sustain a finding in his favor. In all cases he must offer competent
evidence from which the jury may fairly and justly find the defendant
wanting in the proper measure of care. This he is not required to do
by direct positive evidence of eyewitnesses to the alleged negligent act,
but it is sufficient to make a case for the jury on this question if he
shows facts from which a reasonable inference of the alleged negligence
may be drawn. ‘If the facts proved make it probable that the defendant
neglected its duty, it is for the jury to decide between them. Green-
leaf v. Illinois Cent. R. Co., 29 Iowa 14, 4 Am. Rep. 181. Res ipsa
loquitur does not release the plaintiff from proving his case, but defines
in a general way one mode of proving it and what shall be prima facie
evidence of negligence. 2 Labatt’s Master & Servant (Ist Ed.) § 834.”

§ 164. To Take Question to Jury, Following Federal Rule.—As
was seen when considering the procedure in state courts under this act®*
with the qualification that the parties must not be deprived of any substantial
right, and except in so far as the 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 the state.84 Thus where it was
argued that, as the action was brought under the federal law, it should be
tried in accordance with the rules of the federal courts, and that therefore
the federal rule, which permits a trial court to take the case from the jury
where the evidence preponderates in favor of one side or the other, should
be applied in lieu of the scintilla rule which has long been in force in the
state; in other words, it is said that, although the jury may believe from
the evidence that the facts upon which the plaintiff relies to recover are true,
they cannot yet find for him unless they believe that these facts have been
proved by a preponderance of the evidence. But as to this practice the
courts follow their own rule and if the evidence in a case heard and deter-
mined under this act would be sufficient to take the case to the jury and sup-
port 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.85 In Howell v. Atlantic, etc., R. Co., 99 S.
C. 417, 83 S. E. 639, the court said:

“Nor do we agree that, in the administration of the federal statute, the
state courts must apply a different rule of procedure from that which
obtains in the administration of state laws. The federal statute does
not so require, and, in the absence of anything therein to the contrary,
it will be presumed that Congress intended that it should be admin-
istered by the state courts, as the laws of the state are therein admin-
istered. This case affords an excellent illustration of the difficulty and

83. Sufficiency to make question for ville, etc., R. Co. v. Johnson, 161 Ky.

jury, following federal rule——See ante,
“Procedure,” Chap. XVIII.

84. Louisville, etc., R. Co. v. John-
son, 161 Ky. 824, 171 S. W. 847.

85. Louisville, etc., R. Co. v. Hollo-
way, 163 Ky. 125, 173 S. W. 343; Louis-

824, 171 S. W. 847; Louisville, etc., R.

‘Co. v. Winkler, 162 Ky. 843, 173 S. W.

151; Howell v. Atlantic, etc., R. Co., 99
S. C. 417, 83 S. E. 689; Mulligan v. At-
lantic, etc, R. Co. (S. C.), 88 S. E.
445,
335

EVIDENCE. §§ 164-165

confusion that would result from an attempt to apply a different rule
of procedure from that which obtains in the administration of state
laws. According to appellant’s contention, if the federal statute is
applicable, the court must depart from its own rule, and decide on the
weight of the evidence, and direct a verdict for the defendant, if in its
opinion, the evidence is insufficient to sustain a verdict for plaintiff;
but it is conceded that under the rule of procedure in the state court,
if the federal statute is not applicable, the court could not have directed
the verdict. As the applicability of the statute is the question at issue,
which horn of the dilemma must the court take? If it decides the facts,
and holds the statute applicable, it denies plaintiff his right, under the
Constitution, to have the jury decide the facts. On the other hand, if
it follows its own rule of procedure and submits the issue to the jury,
if appellant’s contention be correct, it denies defendant its right, under
the federal rule of procedure, to have the court decide the facts. This
shows the futility of attempting to apply conflicting rules of procedure
in the same cause.”

§§ 165-166. Variance—§ 165. In Pleading Applicable Law.—As

the federal act supersedes the common law and the statutes of the state only
in so far as they affect causes arising in interstate commerce, it has been held
that where the plaintiff bases his cause of action upon that act, but the evi-
dence fails to show a right of recovery thereunder, he may still have his
case submitted under the state statute, or under the common law, if the
pleadings, after rejecting all references to the act, are sufficient to warrant

such submission.86

The converse of which is equally true, so that if the

plaintiff has based his action on a state law and the allegations in the plead-

86. Variance—Right to recover under
state or federal law as evidence may
develop.—Wabash R. Co. v. Hayes,
234 U. S. 86, 58 L. Ed. 1226, 34 S. Ct.
729. See, also, Erie R. Co. v. Ken-
nedy, 112 C. C. A. 76, 191 Fed. 332, 41
L. R. A, N. S., 123; Ullrich v. New
York, etc, R. Co. (D. C.), 193 Fed.
768; Jones v. Chesapeake, etc., R. Co.,
149 Ky. 566, 149 S. W. 951.

Where an action is brought under
the act but it develops that it is not
applicable, but that the law of a sis-
ter state applies, in the absense of
pleading or proof of such law the court
can not take judicial notice thereof
and will presume that it is the same
as its own. Grow wv. Oregon, etc., R.
Co., 44 Utah 160, 138 Pac. 398, Ann.
Cas. 1915B, 481.

But see Bravis v. ‘Chicago, etc., R.
Co., 133 C. C. A. 228, 217 Fed. 234,
where it is held that a verdict is prop-
erly directed for the defendant where
the plaintiff by amendment at the close
of his evidence changes his cause of
action to come under the federal act,
which the evidence showed not to be
applicable. To the contention that a
good cause of action was shown under

both the state and federal law, the
court said: “This case does not pre-
sent a complaint where, in separate
counts, a cause of action is pleaded un-
der the federal act and another under
the state law, and no election is made,
and we do not determine the effect of
a motion for a directed verdict in such
a case. It presents a case in which
the plaintiff at the close of his own
case so amended his complaint, which
stated in a single count a cause of ac-
tion under the state law, as to make it
state a cause of action under the Fed-
eral Employers’ Liability Act. The
plaintiff thereby elected to abandon
his cause of action under the state law
and to insist upon a recovery under
the federal act. The defendant then
moved for a directed verdict, and the
court could not lawfully escape the
decision of the only question thus pre-
sented, the question whether or not
the evidence sustained the cause of
action which alone the plaintiff had
then pleaded and on which he had
elected to rely. There was no error
in its decision of that issue, and the
plaintiff was estopped from repudiat-
ing his election.”
§ 165 FEDERAL EMPLOYERS LIABILITY ACT. 336

ings are not inconsistent with an action under the federal act or are suff-
ciently broad to state an action thereunder, evidence showing that the fed-
eral act alone is applicable does not constitute a variance.S”

A variance between the pleading and proof in this respect, is not material
unless it be of such a character as to mislead the opposite party.88 But
where a case is tried throughout on the theory of liability under a state law,
the defenses and evidence being materially different from the same under
the federal act, it cannot be said that the defendant is not prejudiced by a
submission under the federal act after all the evidence is taken.8®

In a Georgia Case, where the plaintiff specifically based her cause of ac-
tion upon the Alabama statute, but the declaration and the evidence showed
a case arising in interstate commerce, and therefore within the controlling
and exclusive operation of the federal act, it was held that the court might
treat all reference to the Alabama statute as surplusage and permit a recov-
ery under the federal act, and that there was no error, or none of which the
defendant could complain, in refusing to permit the defendant, after the

87%. Méinnesotaa—Ahrens v. Chicago,
etc., R. Co., 121 Minn. 335, 141 N. W.
297.

Missouri.—Pipes v. Missouri, Pac. R.
Co. (Mo.), 184 S. W. 79.

Pennsylvania—Hogarty v. Philadel-
phia, etc., R. Co., 245 Pa. 443, 91 Atl.
854.

Wisconsin. — Rowlands wv. Chicago,
etc. R. Co., 149 Wis. 51, 135 N. W.
156.

“The complaint alleged in general
terms facts showing that defendant
was a common carrier and engaged in
interstate commerce, and that plain-
tiff was in its employ as a brakeman
on one of its interstate trains. The
complaint also alleged that the injury,
of which he complained, occurred in
the state of Iowa, and the statutes of
that state were specially pleaded as a
foundation of defendant’s liability. It
appeared from the evidence, and: with-
out dispute, that defendant is an in-
terstate carrier, and that the train in
connection with which plaintiff was em-
ployed was at the time of the injury
engaged in interstate commerce. And
at the close of plaintiff’s case in chief
defendant moved to dismiss the action
on the ground that no recovery could
be had under the Iowa statutes, for
the reason that the statutes of that
state, relied upon by plaintiff, had been
superseded by the Federal Employers’
Liability Act. The court denied the
motion, holding that the complaint
was broad enough in its allegations to
justify a recovery under the federal
statutes. To this ruling defendant ex-
cepted. The trial proceeds upon the
theory expressed by the court in deny-

ing the motion, and the cause was
submitted to the jury accordingly.
The court in its charge limited plain-,
tiff's right of recovery to the question
whether defendant had violated the
Federal Safety Appliance Act, in hav-
ing upon the car causing the injury a de-
fective coupling appliance, and wholly
eliminated all consideration of liability
under the Iowa statutes. Whether the
court erred in so submitting the case
to the jury presents the principal ques-
tion on this appeal. It is contended
by defendant that this was a distinct
departure from the issues made by the
complaint, and, within the case of Cre-
teau v. Chicago, etc., R. Co., 113 Minn.
418, 129 N. W. 855, reversible error.
We do not sustain this contention.
The complaint is broad enough, as
held by the trial court, to sustain the
claim that a failure on the part of de-
fendant to comply with the Safety Ap-
pliance Act was intended by the
pleader to be made in part the basis
of plaintiffs cause of action. It is true
that the federal statutes were not spe-
cifically pleaded. But this was not
necessary. It is sufficient that the facts
pleaded show a liability thereunder.
Denoyer v. Railway Transfer Co., 121
\Minn. 269, 141 N. W. 175; McDonald
v. Railway Transfer Co., 121 Minn. 273,
141 N. W. 177, recently filled.” Ahrens
v. Chicago, etc., R. ‘Co., 121 Minn. 335,
141 N. W. 297.

88. Variance not material, when.—
Erie R. Co. v. Kennedy, 112 C. C. A.
76, 191 Fed. 332, 41 L. R. A, N.S,
123.

89. Creteau v. Chicago, etc., R. Co.,
113 Minn. 418, 129 N. W. 855.
337 EVIDENCE. § 165

appearance term had passed, to file an amendment setting up that the case
erose in interstate commerce and within the controlling operation of the
federal act, such amendment being nothing more than a dilatory plea, going
to show that defendant, though it might be liable to the plaintiff for the
particular wrong or injury, was liable under a different statute from that
sued upon.%°

Of course where the pleadings and evidence show a case arising in inter-
state commerce, the federal act is exclusive, and the existence of a right of
action under the state law or the common law cannot be claimed. The fed-
eral law then becomes the only law under which the action can be prosecuted
and a recovery had. It is the law of the case by which the rights of the
employee and the liability of the carrier are to be measured.9! Where,
therefore, the plaintiff’s petition, as ruled by the state court, states a case
under the state statute, but the evidence shows a case arising in interstate
commerce and controlled by the federal act, the situation presented is that
of the case pleaded not proved, and the case proved not pleaded, and the
defendant, having, in proper time, and in the proper manner, raised the ob-
jection and called the attention of the court to the fact that the case is con-
trolled by the federal statute, is entitled, after the evidence is in, to raise
again the objection that the federal statute must control, and that the plain-
tiff is not entitled to recover upon the case as proved.®? In Toledo, etc., R.
Co. v. Slavin, 236 U. S. 454, 59 L. Ed. 671, 35 S. Ct. 306, the court said:

“In this respect the case is much like St. Louis, etc., R. Co. v. Seale, 229
U.S. 156, 57 L. Ed. 1129, 33 S$. Ct. 651, Ann. Cas. 1914C, 156, 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 adduced 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

Mr. Justice Lamar, dissenting; Toledo,
etc., R. Co. v. Slavin, 236 U. S. 454, 59
L. Ed. 671, 35 S. Ct. 306.
Arkansas.—Midland Valley R. Co. v.
Ennis, 109 Ark. 206, 159 S. W. 214,

90. Same—Erroneous reference to
statute treated as surplusage.—South-
ern R. Co.-v. Ansley, 8 Ga. App. 325,
68 S. E. 1086. See, also, Missouri, etc.,
R. Co. v. Wulf, 226 U. S. 570, 57 L.

Ed. 274, 33 S. Ct. 133, Ann. Cas. 1914B,
134,

91. Where pleadings and evidence
show case under federal act.— St.
Louis, etc., R. Co. v. Hesterly, 228 U.
S. 702, 57 L. Ed. 1031, 33 S. Ct, 703,
LR. A, 1915E, 706, reversing 98 Ark.
240, 135 S. W. 874; St. Louis, etc., R.
Co. v. Seale, 229 U. S. 156, 57 L. Ed.
1129, 33 S. Ct~651, Ann. Cas. 1914C,
156; Cound v. Atchison, etc., R. Co.
(C. 5, 173 Fed. 527.

92. Where the pleadings clearly pre-
gent one case and the evidence another.
—United’ States—St. Louis, etc., R. Co
v. Seale, 229 U. S. 156, 57 L. Ed. 1129,
33 S. Ct. 651, Ann. Cas. 1914C, 156,

Fed Act—22

46 L. R. A N.S. 741.

Towa.—Ross v. Sheldon (Iowa), 154
N. W. 499.

Missouri—Moliter v. Wabash R. Co.,
180 Mo. App. 84, 168 S. W. 250.

West Virginia—Findley v. ‘Coal, etc.,
R. Co. (W. Va.), 87 S. E. 198.

If the plaintiff has joined actions un-
der a state statute and the federal act,
when the evidence shows only the fed-
eral act applicable, the court should
direct the jury to disregard the count
under the state statute. Atlantic, etc.,
R. Co. vw. Jones, 12 Ala. App. 419, 67
So. 632; Ex parte Atlantic, etc., R. Co.,
190 Ala. 132, 67 So. 256,
§§ 165-166 FEDERAL EMPLOYERS LIABILITY ACT. 338

was not pleaded. In that situation the defendant interposed the objec-
tion, grounded on the federal statute, that the plaintiffs were not enti-
tled to recover on the case proved. We think the objection was inter-
posed in due time and that the state court erred in overruling it’ The
principle of that decision and others like it is not based upon any tech-
nical rule of pleading, but is matter of substance.”

This variance usually occurs in actions for death, where the state statute
and federal act, provide different parties plaintiff, and the plaintiff in the
action as brought fails to show a right to a recovery under the law appli-
cable. Thus, where an action brought by a personal representative and based
specifically upon the federal act cannot be sustained under that act for the
reason that the cause of action, if any, arose before the federal statute went
into effect, no recovery can be had upon the action, as brought, under a
state law which gives the right of action, not to the personal representative
of the deceased, but to his parents, since damages to the estate of a deceased
minor for which a personal representative might maintain an action would
be a distinct cause of action from damages to his parents resulting from his
death and for which the statute gives a cause of action to the parents.®%

§ 166. Variance in Pleading and Proving Negligence.—Any vari-
ance between the negligence as charged and proved will only be sufficient
to defeat a recovery when the defendant is substantially prejudiced.®* But
where an employee claims to have been injured at a particular place there
can be no recovery for an injury received elsewhere.2® However, any right

93. Action for death—Where plead-
ings present case under federal act and
evidence shows case under state law.
—Winfree v. Northern Pac. R. Co.,
227 U. S. 296, 57 L. Ed. 518, 33 S. Ct.
273, affirming 173 Fed. 65. See, also,
Missouri, etc., R. Co. v. West, 38 Okla.
581, 134 Pac. 655, dismissed for want
of jurisdiction in 34 S. Ct. 471, where
it is held that evidence adduced in an
action to recover for the death of an
express messenger, brought by the
widow under a state statute, did not
show that he was employed by the
railroad company in interstate com-
merce, so as to defeat the action as
brought.

94. Variance in pleading and proving
negligence——Georgia Southern R. Co.
v. Puckett, 16 Ga. App. 551, 85 S. E.

809.

Iowa.—Pelton v. Illinois Cent. R.
Co. (Iowa), 150 N. W. 236.
Minnesota—Bombolis wv. Minneapo-

lis, etc., R. Co., 128 Minn. 112, 150 N.
W. 385.

Vermont.—White v. Central, etc. R.
Co., 87 Vt. 330, 89 Atl. 618.

A motion for a directed verdict on
the ground of variance is properly re-
fused where the declaration states that
the deceased was injured by an un-

known danger, and the evidence shows
that he had no knowledge of a faster
train following his train from which
a collision resulted and he was killed.
White v. Central, etc., R. '\Co., 87 Vt.
330, 89 Atl. 618.

Where the plaintiff pleaded that the
negligence which resulted in a colli-
sion by which he was injured was the
failure of the defendant’s train dis-
patcher to display a stop signal which
was supported by evidence, but the
evidence of the defendant tended to
show that the negligence was due to
the failure of the engineer to observe
a green stop signal, this was not such
a variance as would require a reversal.
Pelton v. Illinois Cent. R. Co. (Iowa),
150 N. W. 236. © :

Where plaintiff charged the negli-
gence of the defendant, in its failure to
keep its tracks in good order to a track
foreman, a track supervisor and a road
master, the defendant could not defeat
a recovery by showing that this duty
was that of the yard master whose
negligence was not alleged in the pe-
tition. Southern R. Co. v. Puckett,
16 Ga. App. 551, 85 S. E. 809.

95. Cincinnati, etc.. R. Co. v. Clarke
(Ky. App.), 185 S. W. 94.
339 EVIDENCE.

8§ 166-167

to question a variance is waived by a failure to raise the point on the trial.°°

§ 167. Amendment to Conform to Proof.—When the variance is such
as not to prejudice the rights of the defendant, an amendment should be
permitted to make the pleadings conform to the proof.®7 To the objection
of a variance, where the declaration is consistent with the act but not
pleaded, it is held that if for any reason it should have been specially men-
tioned, plaintiff is entitled to amend.98 Thus, if at the trial the proofs dem-
onstrate that the injury arose outside of interstate commerce, and, therefore,
that no recovery could be had under the federal act, the declaration may be
amended, or regarded as amended, to conform to the proofs, and a recovery
permitted under the statutory or common law, if the petition contains the

necessary allegations.®9

On this question in Fernette v. Pere Marquette

R. Co., 175 Mich. 653, 141 N. W. 1084, 144 N. W. 834, the court said:

“His declaration, while it counts upon neither act specifically, was prop-
erly held by the learned trial judge to be based upon the liability fixed

by the state act.

This follows because of the fact that there is no aver-

ment in the declaration that, at the time of the accident, defendant was

engaged in interstate commerce.

At the time plaintiff commenced his

action that fact could not have been known by him, and could have been

ascertained only with great difficulty and trouble, if at all.

96. Waiver.—Law v. Illinois Cent. R.
Co., 126 C. C. A. 27, 208 Fed. 869;
Pennsylvania Co. v. Cole, 131 C. C. A.
244, 214 Fed. 948.

“The failure to observe the markers
on the caboose of the freight train was
perhaps not definitely alleged as a
ground of negligence, but the very first
witness sworn in the case was called
to testify to the existence of lighted
markers upon the caboose; other wit-
nesses gave testimony tending to the
same effect, all without objection of
variance or surprise. Had objection to
this testimony been made on the
ground that it was not covered by the
petition, amendment could and should
have been allowed. .Pennsylvania Co.
v. Cole, 131 C. C. A. 244, 214 Fed. 948.

97. Amendment to conform to proof.
—United States—Pennsylvania Co. v.
Cole, 181 C. C. A. 244, 214 Fed. 948;
Law v. Illinois Cent. R. Co., 126 C. C.
A. 27, 208 Fed. 869; Southern. R. Co.
v. Gadd, 125 C. C. A. 21, 207 Fed. 277,
affirmed in 34 S. Ct. 696; Strother v.
Union Pac. R. Co. (D. C.), 220 Fed.
731; Wabash R. Co. v. Hayes, 234 U.
S. 86, 58 L. Ed. 1226, 34 S. Ct. 729.

Kentucky.—I!linois Cent. R. Co. v.
Kelly (Ky. App.), 181 S. W. 375; Cin-
cinnati, etc, R. Co. v. Tucker, 168 Ky.
App. 144, 181 S. W. 940. .

Pennsylvania.—Hogarty v. Philadel-
phia, etc, R. Co., 245 Pa. 443, 91 Atl.
854.

Defendant

98. Fernette 7. Pere Marquette R.
Co., 175 Mich. 653, 141 N. W. 1084, 144
N. W. 834; Hogarty wv. Philadelphia,
etc., R. Co., 245 Pa. 443, 91 Atl. 854.

99. Strother v. Union Pac. R. Co.
(D. C.), 220 Fed. 731.

In Bitondo v. New York, etc., R.
Co., 163 App. Div. 823, 149 N. Y. S.
339, a mistrial was ordered entered
where the pleadings made a case under
the state law but the evidence showed
the parties were engaged in interstate
commerce. Though the plaintiff was
permitted to amend, the proof showing
the requisites to a recovery, the court
holds that the change in the issue evi-
dently caused surprise.

In Findley v. Coal, etc., R. Co. (W.
Va.), 87 S. E. 198, it is held that when
the limitation for an action under the
federal act has expired a plaintiff can
not amend his complaint to conform
to the proof, as this is the bringing of
a new action.

In Kentucky it is held that a peti-
tion which states a cause of action un-
der one law can not be considered as
stating a cause of action under another
tby the elimination of allegations but
that an amendment is necessary in any
case and that the defendant sufficiently
challenges the right of the plaintiff to
recover under the law stated by mo-
tion for a directed verdict. Cincinnati,
etc., R. Co. v. Tucker, 168 Ky. App.
144, 181 S. W. 940.
§§ 167-168 FEDERAL EMPLOYERS’ LIABILITY ACT. 340

was in possession of all the facts touching upon the matter, and upon
the trial promptly put them in evidence as a matter of defense. Should
plaintiff be held to be debarred from recovery because of his failure to
aver in his declaration a fact of which he was in ignorance, and which
in the nature of things he could not ascertain? We think it would be
a reproach to the administration of justice to so hold. It should be
borne in mind that the declaration sets out facts which would impose a
liability upon defendant under the federal act if it had charged that, at
the time of the collision, defendant was engaged in interstate commerce.
We are of opinion that it was not necessary for plaintiff to plead either
statute, 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. It may be that in case of the death of an injured employee a
different measure of damages is provided by the two acts. If so, the
trial court will instruct the jury as to the proper rule under the appli-
cable act. In this case, plaintiff having survived his injury, the measure
of damages would, it appears, be the same under both acts. Our statute
of amendments is extremely liberal. C. L. §§ 10,272, 10,273.”

As it is within the discretion of the trial court to permit an amendment to a
complaint so as to conform to the proof, but where a complaint is insufficient
to show the existence of any beneficiaries entitled to recovery under the act,
it is not an abuse of discretion to refuse an amendment which would show
the same after all the evidence has been taken and there is no evidence in
the record that would support the amendment.

§ 168. Objections and Waiver.—Objections should be made when a
question is propounded and not after a witness has answered,? and where evi-
dence which is competent when introduced is shown by subsequent evidence
to be incompetent, the party prejudiced thereby should move for its ex-
clusion.2 Evidence admitted over objection is harmless error when other
witnesses testified to the same facts without objections.4

1. Abuse of discretion in refusing,

c the motion of the defendant, but he
when no evidence to support amend-

having failed to make such motion and

ment.—lIllinois Cent. R. Co. v. Do-
herty, 153 Ky. 363, 155 S. W. 1119, 47
L. R.A. N.S. 31.

2. Time of objection.—St. Louis, etc.,
R. Co. v. Duke, 112 C. C. A. 564, 192
Fed. 306, 309.

8. Excluding evidence subsequently
becoming incompetent.—Kansas, etc.,
R. Co. v. Leslie, 112 Ark. 305, 167 S.
W. 83, reversing on other grounds in
35 S. Ct. 844.

Where defendant complained of the
trial court permitting witnesses to tes-
tify that there was trouble with the air
appliance on certain cars which was!
prejudicial because it raised a con-
jecture that it had something to do
with the jerking of the train, also that
the evidence of these same witnesses
showed that these cars had been re-
moved before the accident happened.
If this last contention were true the evi-
dence would have been excluded on

the evidence being clearly competent
when introduced, he can not complain
that it were not excluded and it was
rendered less harmful by an instruc-
tion of the court that they should not
consider any negligence not alleged to
have occurred at the time of the acci-
dent. Kansas, etc. R. Co. wv. Leslie,
112 Ark. 305, 167 3. W. 83, reversed
on other grounds in 35 S. Ct. 844.

4. Evidence of other witness show-
ing same facts as waiver.—United
States.—St. Louis, etc., R. Co. v. Duke,
112 C. C. A. 564, 192 Fed. 306, 309.

South Carolina—Mims v. Atlantic,
etc, R. Co. 100 S. C. 375, 85 S. E.
372; Mulligan v. Atlantic, etc., R. Co.
(S. C.), 88 S. E. 445.

Texas.—Southern Pac. Co. v. Vaughn
(Tex. Civ. App.), 165 S. W. 885, writ
of error denied in 170 S. W. xix, no op.

Vermont.—Lynch v. Central, etc., R.
Co. (Vt.), 95 Atl. 683.
341 EVIDENCE, § 168

In order to obtain a review on appeal objections to the admission of tes-
timony should state wherein it is objectionable. And an objection to evi-
dence as irrelevant is not sufficient to justify its exclusion on special grounds.®
And where evidence is objected to, and the court in response to the objec-
tion states that he does not admit it generally, but admits it for a special
purpose, and counsel for the objecting party, upon ascertaining the purpose
for which it is to be admitted, make no further objection to it, no valid as-
signment of error can ‘be based on the court’s act in admitting it.7

In Dutton v. Atlantic, etc., R. Co.8 testimony was admitted for the pur-
pose of showing that the intestate did not have any property at the time of
his death other than his salary as an employee, and no insurance, with which
to support his family, and that neither the widow nor the children had any
property at the time of his death. The only ground of objection to the ad-
missibility of the testimony was that it was irrelevant. But as the relevancy
of the testimony is left, in large measure, to the discretion of the presiding
judge; it was held that his ruling will not be reversed on appeal, unless it
clearly appears that his discretion was erroneously exercised, to the preju-
dice of the appellant’s rights, which has not been made to appear in this
case. But such evidence would seem to be inadmissible and as subsequently
stated by the court, while the evidence was admissible for the purpose of
showing the dependency of the widow and children upon the decedent, the
damages were limited to the pecuniary loss sustained, but had the objection
to its admissibility been raised that it could not be considered by the jury as
an element of damage, and admitted over such objection quite a different
question would have been presented. So too, where questions are ruled out
as evidence, it must be made to appear of record what the expected answer
will be, so that the court may see their materiality and relevancy, or excep-
tions taken thereto will not be considered.®

The defendant does not waive its right to show that the federal law ap-
plies to a case by having proceeded: in the first trial under a declaration
which did not state an action under the act and defeated the same for the
error of the court in directing a verdict against it.1°

While the reports of an inspector upon the explosion of a boiler made
under the requirement of the boiler inspection act 11 are not to be used “for
any purpose in any suit or action for damages growing out of any matter

5. Sufficiency of objection to assign 7. Bowers v. Southern R. Co., 10 Ga.

error.—Pennsylvania Co. v. Sheeley,
137 C. C. A. 471, 221 Fed. 901; Penn-
sylvania Co. v. Cole, 131 C. C. A. 244,
214 Fed. 948.

North Carolina—Renn v. Seaboard,
etc., Railway (N. C.), 86 S. E. 964.

6. General objection as irrelevant—
When inadmissible on special grounds.
—Dutton v. Atlantic, etc, R. Co. (S.
C.), 88 S. E. 263.

App. 367, 73 S. E. 677.

8. (S. C.), 88 S. E. 263, 266.

9. Tilghman v. Seaboard, etc., R. Co.,
167 N. C. 163, 83 S. E. 315, 1090, re-
versed on other grounds in 35 S. Ct.
653.

10. Waiver by permitting first trial
under state law.—Findley v. Coal, etc.,
R. Co. (W. Va.), 87 S. E. 198.

11. Act Feb. 17, 1911, c. 103; 36 St.
916; Comp. St. 1913, 8637.
§ 168 FEDERAL EMPLOYERS LIABILITY ACT. 342

mentioned in said report or investigation,” the fact that plaintiff’s counsel
tised such a report during the cross-examination of one of defendant’s wit-
nesses there is no prejudice to the defendant, when after the examination
had continued some time, defendant’s counsel objected to the line of cross-
examination but not to the admissibility of the report, and the report was
subsequently offered in evidence but refused, and defendant’s counsel had
in his opening statement challenged the plaintiff to produce the report.1?

12. Reports on accidents not to be aldson v. Great Northern R. Co.
used as evidence—When waived.—Don- (Wash.), 154 Pac. 133.
CHAPTER XXIV.

WITNESSES.

. Competency, § 169.

. Confidential Communications to Physician, § 170.

. Absent Witnesses, and Failure to Procure or Call Witnesses, § 171.
. Conduct of Witnesses on Stand, § 172.

Pw De

§ 169. Competency.—The competency of witnesses is regulated by
the law of the forum! Witnesses whose experience as to loading was
confined to inspections at junction points, made under rules adopted by
most railroads but not defendant, are competent as to the proper loading
of cars, because as between the proper standard of safe loading for hauling
from the point of shipment and the proper standard for transfer at junc-
tion points there can be no such substantial dissimilarity that one can have
no bearing on the other.2 A fireman whose only knowledge of an engine
was confined to the trip on which it exploded, 18 miles in distance and an
hour in time, is not qualified to give an opinion concerning the engine, boiler
and appurtenances.? Where the trial court has found as a fact that one
testifying as a medical expert has qualified himself to give the testimony
sought of him, it is immaterial to what school of medical thought and
practice the witness belongs, and an exception that the witness was an osteo-
path cannot be sustained. So too, when the court has found a witness
qualified as an expert, having had a long experience in surgery under ex-
ceptionally advantageous circumstances both in this county and abroad, he is
competent to testify as to the benefits and advantages of a comparatively
new operation; which is not subject to objection on the ground that he had
never himself performed it.5 A conductor may from his observation and
knowledge be sufficiently expert to testify as to the duties of a division road
master.®

In an action brought by the administrator of the deceased, for the benefit
of the mother, under the act, to recover for the pecuniary loss she has sus-
tained in the negligent killing by the defendant railroad company of her
son, it is competent for her to testify as to what pecuniary benefits she had

1. Competency.— Bowers v. Southern
R. Co., 10 Ga. App. 367, 73 S. E. 677.

A witness in this state is not ren-
dered incompetent by conviction of a
felony, or other crime, irrespective of
whether the conviction be had in this
state or in another state, and irrespec-
tive of whether the conviction in the
state in which it was had carries with
it incompetency to testify or not.
Bowers v. Southern R. Co., 10 Ga. App.
367, 73 S. E. 677.

343

2. Competency as experts.—Michi-
gan Cent. R. Co. v. Schaffer, 136 C.
C. A. 413, 220 Fed. 809.

3. Virginian R. Co. v.
(Va.), 87 S. E. 577.

4, Ferebee v. Norfolk, etc., R. Co.,
167 N. C. 290, 83 S. E. 360, affirmed in
35 S. Ct. 781.

5. Niles v. Central, etc, R. Co. 87
Vt. 356, 89 Atl. 629.

6 Lynch v. Central, R. Co.
(Vt.), 95 Atl. 683.

Andrews

etc.,
§ 169 FEDERAL EMPLOYERS LIABILITY ACT. 344

received from her son. Such testimony, though she is interested in the event
of the action, not being against the representative of a deceased person and
prohibited by statute.7 The same proposition is affirmed by the Arkansas
Supreme Court, when the action is brought by the widow as administrator,
and the provision in that state is constitutional. .The right to testify is
recognized on two grounds, first in St. Louis, etc, R. Co. v. Fithian, 106
Ark. 491, 155 S. W. 88, 92, where the court said:

“This suit was brought under the Employers’ Liability Act, and cannot
be maintained, except when brought by an administrator. * * *
The recovery in this case, however, is for the benefit of the surviving
widow and the minor heir, and the estate of the deceased person has
no interest whatever in the recovery. The amount recovered cannot
be administered by the probate court in any other way than by an order
for its payment to the party interested, or their guardian. The recov-
ery is by the administrator, as a trustee, really, * * * Since the estate
cannot be charged in this suit and has no interest whatever in the re-
covery, our constitution does not contemplate that the widow, if she
be the administratrix, shall not be allowed to testify concerning the
contributions made to her by her husband before his death for the
support of herself and her minor child. Such contributions cannot be
regarded as transactions with the deceased within the meaning of said
constitutional provision that would bar her from testifying thereto be-
cause of the fact that she is the formal party to the suit as required by
said act of congress, but in fact and effect only a trustee for the par-
ticular purpose of bringing the suit and not as administrator within the
usual sense in which it is employed in our statutes and by our constitu-
tion.”

And again in St. Louis, etc., R. Co. v. Conarty, 106 Ark. 421, 155 S. W. 93,
95, reversed on other grounds in 35 S. Ct. 785, the court said:

“In the case of St. Louis, etc., R. Co. v. Fithian, 106 Ark. 491, 155 S. W.
88, the decision being based upon the view that the administrator in
this class of cases acts merely as a trustee, and that it is not such an
action as falls within the above-quoted provision. The writer is satis-
fied with the conclusion reached on that question, but does not feel
sure that the grounds for the decision are sound, inasmuch as a judg-
ment for costs may be rendered against the estate. * * * He feels
more secure in the conclusion that the testimony does not fall within
the constitutional inhibition, for the reason that it establishes facts
entirely collateral to the main issue—i. e., the liability of the defendant
—and merely goes to the question of amount. The provision in ques-
tion was aimed at an exclusion of the testimony of one party as to the
transaction which constituted the basis of the cause of action, and not
merely to transactions which are purely collateral to the main issue.
This view is sustained by the decision of the Supreme Court of the

7. Competency of persons interested 8. St. Louis, etc., R. Co. v. Fithian,
in recovery as against decedent’s es- 106 Ark. 491, 155 S. W. 88; St. Louis,
tate.—Irvin v. Southern R. Co. 164 N. ete, R. Co. v. Conarty, 106 Ark. 421,
C. 5, 80 S. E. 78, 49 L. R.A, N.S. 155 S. W. 93, reversed on other
810, Ann. Cas. 1915D, 54. grounds in 35 S. Ct. 785,
\
345 WITNESSES. §§ 169-170

United States in United States v. Clark, 96 U. S. 37, 24 L. Ed. 696, and
is undoubtedly sound.”

§ 170. Confidential Communications to Physician.—While the
communications made to a physician, or information obtained by him while
examining a patient, are privileged, and cannot be given in evidence over
the objection of the patient, but the*testimony of physicians making an ex-
amination of the plaintiff to ascertain his physical ability to work on a rail-
road, their information not being obtained for the purpose of treating or
acting for him, is not privileged, and it is error to exclude it.2 However,
the relation may exist, even though the physician was not employed or did
not treat the patient. Thus where the plaintiff went to a physician and con-
sulted him about his injury and permitted an examination to be made with
a view to engaging his professional services, and the information was nec-
essary to enable him to prescribe as a physician and was acquired for that
purpose, but the plaintiff after the examination discovered that the physi-
cian was employed by the defendant company to treat its injured employees,
and declined to engage him to treat his injuries, establishes the relation of
physician and patient so as not to permit the physician to disclose the in-
formation so acquired over the patient’s objection.1°

Where a railroad surgeon selected other surgeons to treat plaintiff’s in-
juries, and gave them, and also nurses, general directions to that end, and
also occasionally called on the plaintiff personally after he was injured and
prescribed for him, this does not preclude him from testifying over the ob-
jection that the communications were privileged, to the statements made by
the plaintiff when he was interviewed by railroad representatives in the
reception room of the hospital. The doctor being present for the double pur-
pose that the representatives might be permitted to talk with the plaintiff,
and to see that he was properly cared for while being moved from his ward
to the reception room, and not for the purpose of, or preparatory to treat-
ing the plaintiff and no opinion was sought as to his injuries11 The com-
munications must be such as are necessary and proper for the information
of the physician to enable him to treat the patient skillfully in his profes-
sional capacity, and it is held that where the plaintiff had his leg crushed and
he told his physician that it happened by having his foot slip off the brake
beam onto the “T” rail of the track, and one of the wheels of the car passed
over it, this was not privileged, as the statement of the cause of the injury
could not throw any light upon the manner of treatment, for this purpose it
was absolutely immaterial, and of no assistance to the physician to enable
him to discharge his duties.1?

9. Relation of physician and patient. 11. Communications at other times.
—Cherpeski v. Great Northern R. Co., —Cincinnati, etc., R. Co. v. Gross (Ind.
128 Minn. 360, 150 N. W. 1091. App.), 111 N. E. 653.

10. Kansas, etc., R. Co. v. Miller, 117 12. Communications not necessary
Ark. 396. 175 S. W. 1164. for treatment.—Missouri Pac. R. Co.

uw. Castle, 97 C. C. A. 124, 172 Fed. 841,
affirmed in 224 U. S. 541, 32 S. Ct. 606.
§§ 170-171 FEDERAL EMPLOYERS’ LIABILITY ACT. 346

The United States Supreme Court construed a statute of Arizona which
provides that: A physician or surgeon cannot be examined, without the
consent of his patient, as to any communication made by the patient with
reference to any physical or supposed physical disease or any knowledge
obtained by a personal examination of such patient: ‘Provided, that if
a person offer himself as a witness and voluntarily testify with reference
to such communications, that is to be deemed a consent to the examination
of such physician,” and held that the privilege was not waived by the vol-
untary testimony of the patient relative to his physical condition at the time
of his examination by a physician, but is waived only by testifying to the
communications made to the physician.18 A patient may also waive his
right to prevent his physician giving testimony which is privileged; and if
he fails to object to a question which necessarily calls for testimony which
is privileged, after a fair opportunity is given him to make an objection, he
waives his right to object that the physician cannot testify because of the
privileged character of the testimony.!4

§ 171. Absent Witnesses, and Failure to Procure or Call Wit-
nesses.—A statement of what a witness would say is not admissible in evi-
dence when not incorporated in an affidavit for continuance, nor any agree-
ment that it should be read or any reason why the witness was absent and
should not be admitted over the objections and exceptions of the defendant.15
Where there is evidence that a personal injury was inflicted upon an em-
ployee of a railroad by reason of the failure of the company to inspect a
defective box car, the absence of the railroad’s inspector as a witness jus-
tifies the jury in drawing inferences unfavorable to the defendant, in an
action for damages, upon the issue of its negligence in this respect.16 And
in a case, where the testimony of a fireman tends to show that deceased
could have been seen a long distance off, it is significant that the engineer
of the train by which he was killed was not called to testify; an omission of
such significance as to require consideration.17 And as the mother is not
only a competent, but in all probability the only witness, who would know
of the contributions made to her by her son, her failure to testify may be
taken into consideration and made the subject of comment by counsel.18
So it is competent to show that material witnesses had been subpcened by
the other side, and were present at the trial, for the purpose of showing
why the party had not himself subpceneed them.19

18. Waiver.—Arizona, etc., R. Co. v.
Clark, 235 U. S. 669, 59 L. Ed. 415, 35
S. Ct. 210, affirming 207 Fed. 817.

14. Burke v. Chicago, etc., R. Co.,
131 Minn. 209, 154 N. W. 960.

15. Absent witness—Statement of
testimony.—Kentucky, etc., Co. wu.
Minton (Ky. App.), 180 S. W. 831.

16. Failure to produce witness.
—Ridge v. Norfolk, etc., R. Co., 167 N.
C. 510, 83 S. E. 762.

17. Hardwick v. Wabash R. Co., 181
Mo. App. 156, 168 S. W. 328.

18. Irvin v. Southern R. Co., 164 N.
C. 5, 80 S. E. 78, 49 L. R. A, N.S,
810, Ann. Cas. 1915D, 54.

19. Ferebee v. Norfolk, etc., R. Co.,
167 N. C. 290, 83 S. E. 360, affirmed in
35 S. Ct. 781.
347 WITNESSES. 8§ 171-172

The jury may draw unfavorable inference for failure to produce records,?°
but no presumption arises from the failure of the defendant to produce rec-
ords, showing the origin and destination of loaded and empty cars in a train,
when there is uncontradicted evidence of one of its witnesses showing the
facts sought to be proved by the records.2! Where an agent of the
‘defendant was subpceneed to produce records which would show whether
cars were engaged in interstate commerce, the fact that he did not produce
the records raises no presumption that they were so engaged when he tes-
tified that no records were kept of the movement of which inquiry was
made.?2

§ 172. Conduct of Witnesses on Stand.—Where the widow testified
for herself upon the trial, and while doing so, held in her lap her youngest
child, six years of age, and afflicted in mind, and the defendant objected to
the exhibition of this child before the jury, and at the conclusion of plain-
tiffs examination in chief moved the court to discharge the jury and con-
tinue the case on account thereof; contending that the court in permitting
this child to be exhibited before the jury, and in admitting evidence con-
cerning its mental condition, caused the verdict to be excessive at lease to
the extent of $1,997 awarded to this child more than to the others, and that
this was produced by the exhibition of the child before the jury. Under
the act this child was a beneficiary and entitled to participate in the recov-
ery, and the exhibition of the child to the jury resulting from its presence in
the courtroom is not grounds for complaint, unless an excessive verdict was
thereby induced. That the verdict for this child was in excess of the others,
results from the pecuniary loss to it from the negligent killing of the father
was necessarily greater than to the other children, and that an excess in
the verdict in its favor is the result.?3

20. Hubert v. New York, etc., R. Co. 246 Pa. 1, 91 Atl. 1056, L. R. A. 1915D,

(Conn.), 96 Atl. 967. 557.
21. Devine v. Chicago, etc., R. Co. 23. Widow holding afflicted child in
266 Ill. 248, 107 N. E. 595. lap.—Louisville, etc., R. Co. v. Stewart,

22. Hench v. Pennsylvania R. Co. 163 Ky. 823, 174 S. W. 744.
CHAPTER XXV.

INSTRUCTIONS.

. Sufficiency in General, § 173.

Exceptions and Objections, § 174.

. Instructions on Negligence, § 175.

. Instructions on Contributory Negligence, § 176.
. Instructions upon Assumption of Risk, § 177.

oo

Ore Cw

§ 173. Sufficiency in General.1—It is not proper for the trial judge
to read the pleadings to the jury but rather should give them a distinct
statement of the issues with proper instructions as to the law.?

Instructions directed to issues inapplicable in the case are properly re-
fused. Thus where a complaint fails to allege that the plaintiff was en-
gaged in interstate commerce it is error for the court to instruct that the
action was predicated on the act and that there could be a verdict for the
plaintiff regardless of this element of the case. And an allegation in defend-
ant’s answer to the effect that, if it was liable for plaintiff’s injuries, his
right and defendant’s liability were regulated by the Federal Employers’
Liability Act, states a proposition of law and does not controvert any alle-
gation made in plaintiff’s petition, and hence no issue was made thereby,
and the court did not err in failing to mention such allegation in his pre-
liminary statement to the jury; there being no allegation in the answer
that defendant at the time of the injury was engaged in interstate commerce,
and the defendant having denied plaintiff was injured while in its employ-
ment or under its direction or control.§

Damages for a personal injury inflicted on the employee by the master
under the federal act are considered upon the issue of damages alone, ren-
dering unnecessary a separate issue as to contributory negligence and the
amount to be consequently deducted; and the refusal of the trial court to
submit such an issue to the jury was proper.6 And where on appeal of
an action to recover damages for a personal injury no error is found as to
the issues of negligence and contributory negligence, and the case is sent
back for trial solely on the issue of damages, instructions bearing upon the
first two issues are properly refused.”

1. Instructions—Damages.—As to in-
structions upon apportionment or dim-
inution of damages. See post, ‘““Dam-
ages,” Chap. XXVI.

Defining pecuniary loss or aid.—See
post, “Damages,” Chap. XXVI.

2. Reading Pleadings.—Nashville, etc.,
Railway v. Anderson (Tenn.), 185 S.
W. 677.

3. Confined to issues.—Delano v. Ro-
berts (Mo. App.), 182 S. W. 771; Hor-
ton v. Seaboard Air Line R. Co., 162 N.

348

C. 424, 78 S. E. 494, reversed on other
grounds in 34 S. Ct. 635.

4. Cincinnati, etc, R. Co. v. Gross
(Ind. App.), 111 N. E. 653.

5. Wichita Falls, etc., R. Co. v. Puck-
ett (Okla.), 157 Pac. 112.

6. Damages and contributory negli-
gence are one issue——Lloyd v. South-
ern R. Co., 166 N. C. 24, 81 S. E. 1003,
affirmed in 36 S. Ct. 210.

7. Issue precluded in former trial.—
Ferebee v. Norfolk, etc., R. Co., 167
349

INSTRUCTIONS.

§ 173

Instructions should not by their language appear to assume as proven a
matter sharply disputed by the parties,® or single out and emphasize par-

ticular testimony.®

Nor should a charge embrace inconsistent propositions.

But this is not always reversible error, the jury must have been mislead to
the complainant’s injury.1° And whether the instructions could have pro-
duced misconception in the minds of the jury is not to be ascertained by
merely considering isolated statements, but by taking into view all the in-
structions given and the tendencies of the proof in the case to which they

could possibly be applied.11

N. C. 290, 83 S. E. 360, affirmed in 35
S. Ct. 781.

Abstract instructions——An__ instruc-
tion telling the jury that the law of fel-
low-servancy does not apply, therefore
the negligence of a fellow servant
would not defeat plaintiff’s right of
recovery while objectionable as ab-
stract is not error requiring reversal.
Culp v. Virginian R. Co. (W. Va.), 87
S. E. 187. See, also, Easter v. Virgin-
ian R. Co. (W. Va.), 86 S. E. 37.

8. Assuming facts in dispute.—Jovwa.
—McCoullough v. Chicago, etc., R. Co.,
160 Iowa 524, 142 N. W. 67, 47 L. R.
A., N.S. 23.

Kansas.—Barker 7. Kansas, etc., R.
Co., 88 Kan. 767, 129 Pac. 1151, 43 L,.
R. A. N. S., 1121.

Missouri—Moore v. St. Joseph, etc.,
R. Co. (Mo.),, 186 5S. W. 1035.

West Virgima—Culp v. Virginian R.
Co. (W. Va.), 87 S. E. 187.

An instruction would be erroneous
if it assumed that a pin-lifting rod or
uncoupling rod upon the rear of a ten-
der was not a grab iron, within the
meaning of the safety appliance act re-
quiring grab irons. Moore v. St. Jo-
seph, etc., R. Co. (Mo.), 186 S. W.
1035.

A charge that a fact might be estab-
lished by direct or circumstantial evi-
dence was not without support in the
evidence, where there was testimony
showing the unusual violence of a jolt
causing the injury, which tended to
show that it was negligently caused.
Alabama, etc., R. Co. v. Tidwell (Ga.),
88 S. E. 939. .

An instruction that the engine
_ wheels were flattened is not objection-
able as assuming facts not in evidence
where the petition charged that the
wheels were flattened is not objection-
followed to some extent the allegations
and the evidence showed that the
wheels were badly worn and had not
been trimmed for a year and a half. It
not appearing from the record the
peculiar characteristics of this form of
wear but that it is a wear upon the

Thus an instruction cannot be said to be er-

rim of the wheel. McCoullough v. Chi-
cago, etc, R. Co., 160 Iowa 524, 142
N. W. 67, 47 L. R. A, N. S., 23.

9. Comments on particular testi-
mony.—Dungan v. St. Louis, etc, R.
Co. (Mo. App.), 165 S. W. 1116.

A prayer for special instructions,
that the expert witnesses testifying in
plaintiff’s behalf were inclined to view
the circumstances in a favorable light
for plaintiff, is objectionable as an ex-
pression of opinion by the court for-
bidden by statute. Ferebee v. Norfolk,
etc., R. Co., 167 N. C. 290, 83 S. E. 360,
affirmed in 35 S. Ct. 781.

In an action where the negligence
charged was the explosion of a loco-
motive boiler, the contention of the
plaintiff being that it was old and scaly
which caused its explosion, and that of
the defendant was that it exploded due
to lack of water and evidence was intro-
duced of a piece of scale curved like
the bark of a tree which fitted into a
place on the crown sheet and defend-
ant introduced testimony that it had
no boilers with curved crown sheets,
evidence in rebuttal that some types of
boilers had curved crown sheets was
admissible. Such evidence being ad-
missible, it was error for the court to
instruct that unless the jury believed
that the engine was so shaped that the
piece of scale would fit into them, they
should entirely disregard the testi-
mony. Its effect being to single out
and emphasize this special testimony
when they had been told that unless
engines were in the same shape the
testimony would not prove anything.
Dungan v. St. Louis, etc., R. Co. (Mo.
App.), 165 S. W. 1116.

10. Inconsistent propositions.—Padg-
ett v. Seaboard Air Line Railway, 99
S. C. 364, 83 S. E. 633, affirmed in 35
S. Ct. 481.

11. Consideration to be of chargé as
a whole.—Seaboard Air Line Railway
v. Padgett, 236 U. S. 668, 59 L. Ed. 777,
35 S. Ct. 481; Southern Railway v.
Bennett, 233 U. S. 80, 58 L. Ed. 860,
34 S. Ct. 566, affirming 79 S. E. 710;
350

§ 173 FEDERAL EMPLOYERS LIABILITY ACT.

roneous as authorizing a recovery whether the negligence proved was that
declared on or not, when other instructions required the negligence alleged
to be proved and the jury told to consider the charge as a whole.!?

Where the general charge covers all the substantial issues of the case,
it is not ground for a new trial that the court omits to charge the law re-
lating to certain specific evidence, when no appropriate written request is
made for such an instruction.13 So if the instructions of the court failed to
define the word “proportion” and the defendant makes no request for a
charge on the subject, it cannot complain of the error in failing to define
the word.44_| And where the court modifies a requested instruction which
does not properly state the law and the modification itself does not conform
thereto, still the plaintiff would not be able to complain of the modification
as made, if he was in possession of a correct instruction which was not re-
quested upon the trial.15

Where by amendment certain matters formerly at issue have been elimi-
nated, it is proper for the court to reject issues and prayers for special in-

structions relating thereto.1®

It is never error to refuse an instruction that

is not correct, and no duty devolves on the trial court to modify a requested

one to relieve it of ambiguities.

tion must be plain, certain, and accurate.
The refusal to give a requested instruction in

likely to mislead a jury.!7

Seaboard Air Line Railway v. Renn
(U. 8.), 36 S. Ct. 567.

The error if any in an isolated sen-
tence of a charge, which it is claimed
told the jury that the burden of proof
was upon the plaintiff to establish the
fact of accident beyond a doubt is
cured where the jury had already been
told repeatedly, and in plain and direct
language, that the only burden upon
the plaintiff to entitle him to a verdict
was one to support his material alle-
gations by a fair preponderance of
proof, clearly explained to mean the
better and weightier evidence, and it
is scarcely believable that the jury,
taking the whole charge together,
could have understood their instruc-
tions otherwise. Hubert v. New York,
etc., R. Co. (Conn.), 96 Atl. 967, 971.

12. Devine uv. Chicago, etc. R. Co.,
266 Ill. 248, 107 N. E. 595, affirmed in
36 S. Ct. 27.

13. Duty to request special instruc-
tions.— United States—lIllinois Cent. R.
Co. v. Skaggs (U. S.), 36 S. Ct. 249.

Georgia.—Southern R. Co. v. Hill,
139 Ga. 549, 77 S. E. 803.

Minnesota—Burke v. Chicago, etc.,
R. Co., 131 Minn. 209, 154 N. W. 960.

Defendant can not complain of the
failure of the court to instruct on the
duty of the plaintiff to reduce the

It is well settled that a requested instruc-

It must not be ambiguous, or

damage by the use of ordinary care
and reasonable expense to cure his in-
juries, when no instruction was re-
quested on this point. Delano v. Rob-
erts (Mo. App.), 182 S. W. 771.

14, St. Louis, etc, R. Co. v. Brown
(U. S.), 36 S. Ct. 602.

15. Effect of erroneous modification
of erroneous request.—Arizona, etc.,
R. Co. v. Bryan (Ariz.), 157 Pac. 376.

16. Requests on issues eliminated by
amendment.— Tilghman wv. Seaboard.
etc., R. Co., 167 N. C. 163, 83 S. E. 315,
1090, reversed on other grounds in 35
S. Ct. 653.

17. Requested instructions—Duty of
court to modify.—Pittsburgh, etc., R.
Co. wv, Farmers’, etc., Sav. Co. (Ind.),
10s N. E. 108, 111.

Under the practice in the federal
courts, it is not error to refuse an in-
struction to which a party is not en-
titled, nor is the court bound to modify
the offered instruction so as to bring -
it within the rules of law. See Catts v. .
Phalen (U. S.), 2 How. 375, 382, 11
L. Ed. 306; Buck v. Chesapeake Ins.
Co. (U. S.), 1 Pet. 159, 7 L. Ed. 90;
Haffin v. Mason (U. 8.), 15 Wall. 671,
21 L. Ed. 196.

The rule in some of the state courts
is otherwise. See Chesapeake, etc., R.
Co. v. DeAtley (U. S.), 36 S. Ct. 564.
351 INSTRUCTIONS. § 173

the words of counsel is not error where the court embodies the substance
of the instruction in its charge.18 Thus, it is proper to refuse an instruc-
tion limiting the recovery to an injury received at the place alleged when
other instructions, restricted the right of recovery to such injuries, and it
does not appear that the jury could have understood that it had the right
to return a finding on account of an injury received elsewhere.!®9 A re-
quested instruction that the testimony of a witness to a negative fact, be
given the same consideration as other witnesses, is sufficiently covered by a
general instruction upon the weight of evidence and credibility of wit-
nesses.?°

Instructions confining the right to recover to the federal act are properly
refused when the facts do not bring the case within the act.24_ As where
the undisputed evidence shows a case to which the state law alone is appli-
cable, ?* or the federal law alone, 2% it is the duty of the court to instruct
with reference to such law as governs and not cloud the issues with instruc-
tions on both. Thus it is error for the trial court to so instruct as to per-
mit the jury to determine (upon undisputed evidence showing that both
the carrier and the employee were, at the particular time the latter was in-
jured, engaged only in intrastate commerce) whether the federal or the
state law applies where the defendant relies in part upon the defense of
contributory negligence, which only operates to diminish the amount of
damage recoverable under the former, but is a complete defense under the
latter, law; it not appearing which law the jury applied.2# But in a case
where the evidence warranted the court in instructing that the federal law
governed the case, it was not prejudicial error to submit the question to the
jury, as their finding could be no more adverse than the direction to so
find.25 However, should there be a conflict in the evidence, and the plead-
ings were sufficient to permit a recovery under either the state or federal
law, then the court should submit the issue of fact to the jury, with proper

18. Same—Covered by charge as a erlin wv. Oregon-Washington R., etc.,
whole.—United States—Illinois Cent. Co., 71 Ore. 177, 142 Pac. 554.

“R. Co. v. Nelson, 128 C. C. A. 525, 212 “In short, the plaintiff stated a case
Fed. 69. under the act of Congress relating to

Oklahoma.—St. Louis, etc., R. Co. v. - the liability of railway carriers for
Clampitt (Okla.), 154 Pac. 40. negligent injury to their employees

South Dakota—Fletcher wv. South while engaged in interstate commerce,
Dakota Cent. R. Co. (S. Dak.), 155 N. and produced evidence which the jury

W. 3. was entitled to consider in support of
19. Cincinnati, etc., R. Co. v. Clarke, his allegation; but the trial was
169 Ky. 662, 185 S. W. 94. clouded by erroneous instructions as

20. Grand Trunk, etc, R. Co. wv. to the law applicable to the matter in
Lindsay, 120 C. C. A. 166, 201 Fed. hand and in leaving to the jury the
836, affirmed in 32 S. Ct. 581. matter of determining what legislation

21. Instructions as to law governing was applicable to the case.” Oberlin
case.—Vandalia R. Co. v7. Stringer, 182 v. Oregon-Washington R., etc., Co.,
Ind. 676, 106 N. E. 865, 107 N. E. 673. 71 Ore. 177, 142 Pac. 554.

22. Atchison, etc., R. Co. v. Pitts, 44 24. Atchison, etc., R. Co. v. Pitts, 44
Okla. 604, 145 Pac. 1148. Okla. 604, 145 Pac. 1148.

23. South Covington, etc., R. Co. vu. 25. Pelton v. Illinois Cent. R. Co.,
Finan, 153 Ky. 340, 155 S. W. 742; Ob- 171 Iowa 91, 150 N. W. 236.
352

§§ 173-174 FEDERAL EMPLOYERS’ LIABILITY ACT.

instructions to apply the’state or federal law, as the jury may determine the
facts to be.2* In such a case the objection that instructions are inconsistent
and confusing cannot be properly urged where the complaint presented the
case in two aspects, under the common law and under the federal statute, and
the court instructed the jury upon the principle of each law and its applica-
tion, if they should find that it governed the case. The principles of each
law being different, so of necessity the instructions would be different, but
not inconsistent or necessarily confusing.?7

It is not error to give a general charge which informed the jury that un-
der a certain state of facts the plaintiff in the suit could recover a judg-
ment, and that under a certain other state of facts she could not recover,
the contention being that the court thereby influenced the jury to find the
facts which required a judgment in the plaintiff’s favor, and is based upon
the assumption that the jury would take into consideration the character and
conditions of the parties to the suit, and would be moved by a feeling of
sympathy for the plaintiff. It may be that in controversies of this character
such emotions do sometimes control the verdicts of juries; but, in the ab-
sence of some evidence to that effect, it cannot be assumed that such bias
and sympathy existed. The mere finding of facts favorable to the plaintiff
is not sufficient when the evidence is of that character which -warranted
such finding. To gratuitously assume that a jury which has been properly
tested and selected yielded to such sympathy, or was probably controlled
by such emotions under such conditions, is to impeach the system of trial
by jury for being fundamentally unreliable. Where a general verdict is to
be rendered, the jury are necessarily informed of what is required to be
found in order to entitle either party to a judgment. Evidently the law
does not contemplate that such information should be concealed from juries
in order to insure absolute impartiality.?8

§ 174. Exceptions and Objections.—If a review of the instructions
as given or refused is desired by a party it is necessary to object and ex-
cept thereto in the lower court, ?° and a failure to object will waive the,
question on appeal, even though a state statute permits motions for new
trial on grounds not excepted to on the trial.2° Exceptions to the instruc-
tions given by the court to the jury should be made before the jury retires, 31

26. Same—Submission under both

} 4 29. Necessity of objection and ex-
laws, when evidence conflicting.—Con-

ception. — United States. — Michigan

necticut—Hubert v. New York, etc., R.
Co. (Conn.), 96 Atl. 967.

Ohio.—Erie R. Co. v. Welsh, 89 O.
St. 81, 105 N. E. 189.

South Carolina.— Camp v. Atlanta,
etc., R. Co., 100 S. C. 294, 84 S. E. 825.

27. Hubert v. New York, etc., R. Co.
(Conn.), 96 Atl. 967.

28. General hypothetical charge as
error.—Texarkana, etc, R. Co. wv.
Casey (Tex. Civ. App.), 172 S. W. 729,
734.

Cent. R. Co. v. Schaffer, 136 C. C. A.
413, 220 Fed. 809.

Minnesota. — Denoyer 7. Railway
Transfer Co., 121 Minn. 269, 141 N.
W. 175.

North Carolina.—Ferebee v. Norfolk,
etc, R. Co., 167 N. C. 290, 83 S. E.
360, affirmed in 35 S. Ct. 781.

30. Illinois Cent. R. Co. v. Skaggs
(U. S.), 36 S. Ct. 249.

31. Time for excepting. — Copper
River, etc., R. Co. v7. Reed, 128 C. C.
353 INSTRUCTIONS.

§ 174

as a party should call to the attention of the trial judge, at the time, an al-
leged erroneous statement to the jury of his contentions, to afford him an
opportunity to correct it.22 Under the rule that where an instruction or
the instructions as a whole embodies several propositions of law, to some of
which no objection properly could be taken, a general exception to an en-
tire instruction or charge will not entitle the exceptor to take advantage of
a mistake or error in some single or minor proposition therein.22 And there
is no distinction between one general exception and a special exception to
each charge repeating the same formula.24 Thus where the declaration
alleged that the plaintiff’s damages amounted to $20,000, and prayed judg-
ment for that sum, and one paragraph of the charge to the jury dealt at
some length with the question of the measure of damages, and contained the
statement that, if the verdict was for the plaintiff, he should be awarded
“such an amount of damages, not exceeding $20,000, as” would compensate
him for the injury. An exception was taken to this paragraph, without in-
dicating wherein it was deemed objectionable, and complaint made that it
erroneously conveyed to the jury an intimation that a finding that the plain-
tiff’s damages amounted to $20,000 was justified by the evidence. But in
looking at the entire paragraph it could not have been understood by the
jury as conveying such an intimation, and the words criticized could only
have been understood as marking a limit beyond which the jury could not
go; and if the defendent entertained any fear that the jury would be misled
in that regard, it should, in fairness to the court and the plaintiff, have called
special attention to those words, in order that they might be so modified or
explained as to leave no doubt of their purpose and meaning.*®

In the absence of request to charge, a general exception to the submission
of a case under the federal act, is not sufficient to support an allegation of
error based on the specific difference between a state statute and the federal
act on the defense of contributory negligence. An objection to an instruc-
tion that it told the jury that if they found a defective coupling which con-
tributed to the injury they should find for the plaintiff, is not sufficient to
call the court’s attention to a failure to define the term “scope of employ-
ment.” 87 If defendant had reason to believe that the instructions of the

A. 39, 211 Fed. 111; Pennsylvania Co.
v. Sheeley, 317 C. C. A. 471, 221 Fed.
901.

“Tt seems unnecessary to cite au-
thorities to the proposition that ex-
ceptions to the charge taken after the
jury had brought in a verdict are of
no avail in an appellate court.” Copper
River, etc., R. Co. v. Heney, 128 C. C.
A. 131, 211 Fed. 459.

82. Ferebee v. Norfolk, etc., R. Co.,
167 N. C. 290, 83 S. E. 360, affirmed
in 35 S. Ct. 781.

33. Sufficiency of general exceptions
to instructions.—Norfolk, etc., R. Co.

Fed Act—23

v. Earnest, 229 U. S. 114, 57 L. Ed.
1096, 33 S. Ct. 654, Ann. Cas. 1914C,
Le

34. Pennsylvania Co. v. Sheeley, 137
C. C. A. 471, 221 Fed. 901.

85. Norfolk, etc., R. Co. v. Earnest,
229 U. S. 114, 57 L. Ed. 1096, 33 S. Ct.
654, Ann. Cas. 1914C, 172.

36. Same—As pointing out particu-
lar objection—Erie R. Co. v. Kennedy,
112 C. C. A. 76, 191 Fed. 332.

87. Fletcher v. South Dakota Cent.
R. Co. (S. Dak.), 155 N. W. 3.
§ 174 FEDERAL EMPLOYERS LIABILITY ACT. 354

court covered grounds of negligence alleged in the complaint but not estab-
lished by evidence and that defendant might be liable therefor, it should
direct the court’s attention thereto, and in failing to do so, any error is
waived, when considered as a whole, the instructions direct the jury’s at-
tention to the sole questions of fact for their determination.28 And certainly
for consideration on appeal a party objecting to instructions should point
out wherein they are objectionable.29 Thus an instruction on assumption
of risk which if “viewed wholly with reference to common law principles,”
is erroneous in that it omitted to state as an element the appreciation by the
plaintiff of the danger of the situation, will not be reviewed on appeal when
a general objection only was made at the trial and on appeal to the state
supreme court, the contention against it was only upon the ground that as-
sumption of risk was not available as a defense.#°

The general rules of law relating to instructions which are more favorable
to the objecting party than is warranted by the law and the facts in the case
applies to actions for injuries brought under the federal act, and a party
cannot complain of a failure to instruct under the act where the rules of
law, as stated in the instructions given, were more favorable to it than the
rules prescribed in the act itself.41 Thus the defendant cannot complain where
the court did not follow the federal act, which destroys the defense of fellow
servant’s negligence, but instructed the jury that appellee could not recover
if the injuries were caused by the acts of a fellow servant.42_ And when the
court charges that the plaintiff was guilty of contributory negligence, no
error prejudicial to the defendant is committed by another instruction that
the burden is upon the defendant to show such negligence;4? nor can the
defendant complain of the failure to give the rule of comparative negligence,
when the rule given to apply was more favorable to the defendant—the
jury being instructed to find for the plaintiff only in the event of defendant’s
negligence, and to find for defendant altogether, if plaintiff was guilty of
negligence at all44 Even, the submission of a case to the jury under the

38. Skaggs wv. Illinois Cent. R. Co.,
124 Minn. 503, 145 N. W. 381.

39. Pennsylvania Co. v. Sheeley, 137
C. C. A. 471, 221 Fed. 901; Yazoo, etc.,
R. Co. v. Wright, 125 C. C. A. 25, 207
Fed. 281, afhrming 197 Fed. 94; Mich-
igan Cent. R. Co. v. Schaffer, 136 C.
C. A. 413, 220 Fed. 809; Seaboard Air
Line Railway ». Renn (U. S.), 36 S.
Ct. 567. :

40. Jacobs v. Southern R. Co. (U.
S.), 36 S. Ct. 588.

41. Instructions stating law too fa-
vorably to objecting party.—United
States—Erie R. Co. v. Kennedy, 112
Cc. C. A. 76, 191 Fed. 332.

Georgia—Southern R. Co. v. Ansley,
8 Ga. App. 325, 68 S. E. 1086.

Texas Atchison, etc, R. Co. wv.
Mills, 53 Tex. Civ. App. 359, 116 S.
W. 852, writ of error denied in 104

Tex. 678, no op.; Galveston, etc., R.
Co. v. Averill (Tex. Civ. App.), 136 S.
W. 98.

Vermont—Niles v. Central Vermont
R. Co., 87 Vt. 356, 89 Atl. 629.

In Moore v. St. Joseph, etc., R. Co.
(Mo.), 186 S. W. 1035, it is held that .
an instruction eliminating one ground
authorizing a recovery is not error of
which the defendant can complain.

42. Atchison, etc., R. Co. v. Mills,
53 Tex. Civ. App. 359, 116 S. W. 852,
856, writ of error denied in 104 Tex.
678, no op.

43. Barker v. Kansas, etc., R. Co.,
88 Kan. 767, 129 Pac. 1151, 43 L. R. A,,
INS, 1124,

44. Atchison, etc., R. Co. v. Mills, 53
Tex. Civ. App. 359, 116 S. W. 852,
writ of error denied in 104 Tex. 678,
no op.; Galveston, etc., R. Co. 7. Av-
erill (Tex. Civ. App.), 1836 S. W. 98.
335 INSTRUCTIONS. §§ 174-175
rules of the federal act, assuming that it was error to do so without amend-
ing the pleadings, is harmless; unless prejudice resulted to the defendant in
that the rules of liability existing under the federal act were more burden-
some to it than those existing under the law which the defendant claims
should have been applied.45 In the case of Erie R. Co. v. Kennedy, the
plaintiff's petition described generally the right of action alleged without
specifying whether he based it specifically upon the federal or the state
statute. The defendant in its answer stated that it was a carrier by rail
engaged in interstate commerce, and that the plaintiff was engaged in such
commerce at the time of his injury, but insisted at the trial that the case did
not fall within the federal act because the petition did not so bring it.
The court, however, after the evidence was in, instructed the jury upon the
theory that the action was based upon the federal act, and it was held by
the circuit court of appeals that without regard to whether the case prop-
erly arose under the federal law or the state law, judgment for the plaintiff
should be affirmed, the instructions given not being shown to be more bur-
densome to the defendant than they would have been had they been given
upon the theory that the case arose under the state law.*6

§ 175. Instructions on Negligence.—Where the neglect of the com-
pany to make an inspection,4? Or the negligence of an engineer starting a
train without a signal 4 are not in issue, it is error to instruct thereon.
However, in an action under the act, in which a violation of the safety ap-
pliance act is counted on as negligence, a declaration which simply charges
a failure to equip cars as therein required, will be considered as embracing
a failure to maintain the equipment, justifying an instruction containing this
requirement.49 And where plaintiff claimed damages for injuries received
when he fell from the top of a cut of cars due to the parting of them, be-
cause of the failure of a coupler to hold, just as he was stepping from one
to another, an instruction on the duty of the master to furnish a safe place
to work, is within the issues.5° Where the petition alleges “That plaintiff’s
injuries were brought about by the negligence of the defendant in that the
engine and train on which he was working was old, worn, out of repair,
and unsuited for the purposes for which it was being used, also in the man-
ner and way the engine, tender, and cars were being operated,” this is in-
sufficient to support the submission of an issue of negligence of the railroad
company in permitting the operation of the train at a speed of ten miles
an hour.5!

45. Erie R. Co. v. Kennedy, 112 C.
C. A. 76, 191 Fed. 332.

46. Erie R. Co. v. Kennedy, 112 C.
C. A. 76, 191 Fed. 332.

47. Instructions on negligence—As
fact in issue—Oberlin v. Oregon-Wash-
ington R., etc., Co., 71 Ore. 177, 142
Pac. 554.

48. Cincinnati, etc. R. Co. v. Gold-
ston, 156 Ky. 410, 161 S. W. 246.

49. Atlantic, etc., R. Co. v. Whitney,
65 Fla. 72, 61 So. 179.

50. Vandalia R. Co. vw.
(Ind.), 108 N. E. 580.

51. Missouri, etc, R. Co. v. Poole,
104 Tex. 36, 133 S. W. 239, reversing
123 S. W. 1176.

Holland
§ 175 FEDERAL EMPLOYERS’ LIABILITY ACT. 356

Instructions which impose upon the employer an absolute responsibility
for the safe condition of appliances are erroneous, but they should be limited
to the exercise of reasonable care.52 But an instruction which alone might
have been considered as holding the master to the duty of an insurer, was
not erroneous when the others limited his duty to ordinary care and some
expressly stated that he was not an insurer.®3 An instruction that would
permit of recovery for a defective coupler even though the jury found it
was in perfect order, if it so happened that when the employee tried to work
it, he failed, is not error, when other instructions required the coupler to
be defective to permit of a recovery.*4 A charge that the care required by
the defendant and its employees in the particulars in which they are charged
to have been negligent is ordinary care, and that ordinary care is that care
which a prudent railway company, acting through itself or its employees
or agents, would exercise under the same or similar circumstances, contains
an inaccurate definition of ordinary care because abstract.®®

A charge that the proof of injury to a servant by defective machinery is
prima facie negligence on the part of the defendant is not error, where by
reference to the charge as a whole the jury could only have inferred that
for plaintiff to recover she must have shown affirmatively that the injury
was caused by the master’s negligence.5* And if a case is tried in a state
in which the laws presume negligence from an injury, it is not error to fail
to charge that there is no such presumption under the federal law.5? In
Charleston, etc., R. Co. v. Brown, 13 Ga. App. 744, 79 S. E. 932, the court
said:

“The real question presented, therefore, is whether it was the duty of the
court to point out to the jury the distinction or difference between the
federal statute and the laws of this state, due .to the fact that there is

52. Care required—Seaboard Air
Line Railway v. Horton, 233 U. S.
492, 58 L. Ed. 1062, 34 S. Ct. 635. In
this case the effect was to tell the
jury that the absence of a guard glass
on a water gauge was conclusive evi-
dence of defendant’s negligence.

58. Vandalia R. Co. wv. Holland
(Ind.), 108 N. E. 580.

54. Fletcher v. South Dakota Cent.
R. Co. (S. Dak.), 155 N. W. 3.

55. Defining “ordinary care.” —
Southern R. Co. v. Hill, 139 Ga. 549,
77. S. E. 803.

“‘Ordinary care’ is a relative term,
and what is ordinary care is to be
measured by the nature of each par-
ticular case, and can not be deter-
mined abstractly. A railroad corpo-
ration, considered as a legal fiction, is
an abstraction; but, looked at from the
point of an aggregation of persons us-
ing certain instrumentalities and en-
gaged in the performance of a particu-
lar act, it becomes a concrete entity.

When we speak colloquially of a rail-
road company doing a particular act,
we have in mind, and are understood
to mean, that the act is being per-
formed by the agents of the company.
The standard of ordinary care is not
what a prudent railroad company, or
a prudent industrial corporation, or a
prudent merchant, or a prudent man-
ufacturer would have done under
given circumstances, but it is that care
which ordinarily prudent men engaged
in the particular act complained of
would have exercised.” Southern R.
Co. v. Hill, 139 Ga. 549, 77 S. E. 803.

56. Charging injury as prima facie
negligence—Bennett v. Southern Rail-
way (S. C.), 79 S. E. 710, affirmed on
this point in 233 U. S. 80, 34 S. Ct. 566.

As to application of doctrine of res
ipsa loquitur, see ante, “Under Rule of
Res Ipsa Loquitur,” § 163.

57. Presumption of negligence from
injury—Charleston, etc, R. Co. vw.
Brown, 13 Ga. App. 744, 79 S. E. 932.
357 INSTRUCTIONS.

§ 175

a presumption of negligence against the company where it is sought to
recover damages under the laws of this state, but no such presumption
where the right to recover is based upon the federal statute. We do
not think that the court, in the absence of an appropriate written re-
quest, is in any case required to charge the jury what is not the law.
His duty is fulfilled if he tells the jury what is the law applicable to
the case. In the present case, in telling the jury that the plaintiff was
required to prove all the allegations of negligence set forth in the peti-
tion, or that otherwise the jury should find for the defendant, the judge
certainly conveyed no intimation that there was a presumption of neg-
ligence against the company, and, in order to hold that further instruc-
tions were necessary, it would have to be assumed that there was some
good reason why the jury should have thought that there was a pre-
sumption before it would appear that a jury of ordinary intelligence
would have such an impression. The judge several times told the jury
that the action was based on the Federal Employers’ Liability Act.”

Theoretically there is a distinction between a failure to inspect and a
failure to repair after inspection and discovery. But such distinction is fre-
quently not capable of practical application. So where there is evidence that
an engine was in a dilapidated condition, so that the duty to inspect, dis-
cover and repair is practically identical, it it not error to instruct on lack of
inspection; though there was evidence of an inspection which, however,
could not have been adequate in view of the condition of the engine.®§

Evidence which shows the failure of defendant to comply with its rules
from which an accident happened is sufficient to sustain an instruction that
it is negligence to comply with rules if by a non-compliance in view of the
circumstances an accident could have been avoided, *® and while employees
may presume that other employees will comply with the rules of the com-
pany made for their protection, but conclusive reliance cannot be based on
such a presumption so as to justify an instruction that, “in the exercise of
ordinary care, the employees on the second train had a right to presume
and to act on that presumption that the employees on the first train would
obey the rules of the company by sending a flag back to protect the rear
end of that train if it stopped upon the track.”®° Where the negligence
claimed is that of a fellow servant there is no error in an instruction that the
verdict should be for the plaintiff if the jury found that an employee’s death
was due to the negligence of any ‘other agents or employees” of defendant.
The expression, “other agents or employees” used in the charge clearly
meant agents or employees other than the employee himself, and therefore

58. On inspection and repair—Mc- Pennsylvania R. Co. v. Goughnour, 126

Coullough v. Chicago, etc., R. Co., 160
Towa 524, 142 N. W. 67, 47 L. R. A,
N. S., 23. ;
59. Compliance with rules.—White
vy. Central Vermont R. Co., 87 Vt. 330,
89 Atl. 618, affirmed in 35 S. Ct. 865.
60. Pennsylvania Co. v. Cole, 131 C.
C. A. 244, 214 Fed. 948. And see

C. C. A. 39, 208 Fed. 961, where it is

held not to be error to affirm that a

conductor could assume that a flag-
man would perform his duty, but that
by acquiescence in the non-perform-
ance the conductor would be guilty of
contributory negligence.
§§ 175-176 FEDERAL EMPLOYERS’ LIABILITY ACT. “ 358
was proper, since it excluded him and included the servant by whose neglect
he was injured.61

Where the railroad company and one of its employees are joined as de-
fendants,®? a prayer for a special instruction should have been given as re-
quested ‘by the defendant railroad company, that if they found the engineer
not negligent, his acts or conduct would not support an affirmative answer
to the issue as to the company’s negligence and should not be considered in
determining its negligence; and a charge held for reversible error, that the
defendant, acting necessarily through its employees, was responsible for any
acts of negligence on the part of the train crew which proximately caused
the injury complained of.*?

§ 176. Instruction on Contributory Negligence.®*—In every case in
which contributory negligence is interposed, and there is any evidence in
support of this defense, a proper instruction on this subject should be sub-
mitted, so that the railroad company may have the benefit of this defense
to which under the statute it is entitled.6° If contributory negligence is not
made an issue under the pleadings or evidence, the failure to define its effect
under the statute is not error, °° and such an instruction is properly refused
where the theory of the case is based on the doctrine of “last clear chance”
as this theory has its origin in the concession that the employee was negli-
gent in the first instance.§7

In any action under this act, instructions which make the contributory
negligence a bar to the action should not be given,*8 and as contributory
negligence, is to be considered only in diminution of damages, a requested
instruction upon the question of contributory negligence should be addressed
to the issue of damages, or it will not be considered ;®® and the plaintiff has
a right to a plain and unambiguous instruction to the effect that contributory
negligence is not a complete defense but should be considered only in miti-
gation of damages.7° And as under this act the plaintiff is entitled to re-

61. Charging negligence of other

67. Doichinoff v. Chicago, etc. R.
employees.—Norfolk, etc, R. Co. wv.

Co. (Mont.), 154 Pac. 924.

Holbrook, 131 C. C. A. 621, 215 Fed.
687, reversed on other grounds in
235 U. S. 625, 59 L. Ed. 392, 35 S. Ct.
143.

62. Railroad and employee joint de-
fendants—Charge if employee not
guilty—As to propriety of such join-
der, see ante, “Parties,” Chap. XX.

63. Irvin v. Southern R. Co., 164 N.
C. 5, 80 S. E. 78.

64, Instructions in contributory neg-
ligence.—As to proper instructions for
diminution of damages, see post, “Ap-
portionment or Diminution of Dam-
ages in Case of Contributory Negli-
gence,” § 188.

65. Chesapeake, etc, R. Co. wv.
Cooper, 168 Ky. 137, 181 S. W. 933.

66. An issue in case.—Delano v.
Roberts (Mo. App.), 182 S. W. 771.

68. As bar to recovery.—Arizona.—
Arizona, etc., R. Co. v. Bryan (Ariz.),
157 Pac. 376.

Georgia—Alabama, etc., R. Co. vw.
Tidwell (Ga.), 88 S. E. 939, citing Lou-
isville, etc., R. Co. v. Kemp, 140 Ga.
657, 79 S. E. 558.

Indiana.—Pittsburgh, etc., R. Co. v.
Farmers’, etc., Sav. Co. (Ind.), 108 N.
E. 108.

Texas.—Kansas, etc. R. Co. v. Hall
(Tex. Civ. App.), 152 S. W. 445.

69. Lloyd v. Southern R. Co., 166
N. C. 24, 26, 81 S. E. 1003, affirmed in
36 S. Ct. 210.

70. Ross v. St. Louis, etc., R. Co.,
93 Kan. 517, 144 Pac. 844. See ante,
“Contributory Negligence,” Chap. X;
post, “Damages,” Chap. XXVI.
359 INSTRUCTIONS.

§ 176

cover full damages if he is without fault, consequently he is entitled to
instructions permitting a recovery of the full amount of his damages if he
was without fault or negligence;71 and, if the defendant, having defended
on this ground, desires an instruction upon that question, it should request
it.72

The defendant is entitled to instructions correctly defining the care
required of an employee’? and where plaintiff’s conduct was of such a
character as would amount to contributory negligence to have the jury in-
structed thereon in definite and concrete terms rather than vague generali-
ties.74 Thus where plaintiff who was a brakeman left his train to procure
ice to cool a hot box and on his way had to cross and recross several tracks
and the evidence shows that he did so without stopping or looking,
or listening to ascertain whether any cars were approaching, defendant was
entitled to a concrete instruction defining contributory negligence and a gen-
eral instruction on negligence was not sufficient ;75 but it is not error to have
refused an instruction on contributory negligence where the evidence tends
to show that plaintiff was diligent, not negligent, and the jury found in his
favor.76 :

Where the defendant’s negligence is based upon a violation of the safety
appliance law it is not proper to instruct that, “If, * * * on the occasion
complained of by plaintiff, he voluntarily, unnecessarily, and negligently
went between two of defendant’s freight cars * * * and undertook to
uncouple said cars, and in so doing, and as the sole and only cause thereof,
and without any negligence on the part of defendant.” As from the in-
struction the jury might conclude that, although plaintiff went in between
the cars, yet his action in doing so was neither unnecessary nor negligent;
whereas, as a matter of law, his going between the cars was both unneces-
sary and negligent, if, as a matter of fact, there was no negligence on the
part of the defendant.77

While negligence of the plaintiff is a complete defense when the sole cause
of the injury, if it is so stated in the general charge, defendant’s request

for such a charge is properly refused.*§

71. Carpenter v. Kansas, etc., R. Co.,
188 Mo. App. 164, 175 S. W. 234.

72. Carpenter v. Kansas, etc., R. Co,
188 Mo. App. 164, 175 S. W. 234.

73. Sufficiency to define and submit
issue.—Nashville, etc., R. Co. v. Banks,
156 Ky. 609, 161 S. W. 554.

An instruction stating the degree of
care required of the plaintiff, which a
failure to exercise would constitute
negligence, “and but for which he
would not have been injured” is too
broad in using the expression quoted,
in a case under this act where the con-
tributory negligence does not defeat
recovery but only diminishes the dam-

As according to the usually ac-

ages. Nashville, etc. Railway v.
Henry, 158 Ky. 88, 164 S. W. 310.
74. Pennsylvania Co. v. Sheeley, 137

-C.C. A, 471, 221 Fed. 901.

75. Illinois Cent. R. Co. v. Nelson,
122 C. C. A. 258, 203 Fed. 956.

76. Refusal to instruct harmless er-
ror.—Grand ‘Trunk, etc, R. Co. wv.
Lindsay, 120 C. C. A. 166, 201 Fed.
836, afhrmed in 32 S. Ct. 581.

77. Care required upon violation of
safety appliance act—Nashville, etc.,
Railway v. Henry, 158 Ky. 88, 164 S.
W. 310. ‘

78. As sole cause of injury.—Pfeiffer
v. Oregon-Washington R., etc., Co.,
74 Ore. 307, 144 Pac. 762.
§§ 176-177 FEDERAL EMPLOYERS LIABILITY ACT. 360

cepted definition, contributory negligence is negligence which concurs or
co-operates with that of the defendant, and therefore presupposes negligence
on the part of the defendant, which makes meaningless and confusing an
instruction to the effect that if the contributory negligence of an employee
was the sole and proximate cause of his death, then there should be a ver-
dict for the defendant.7® It is not error to refuse an instruction that a
switchman was guilty of contributory negligence, the sole cause of his in-
jury, so as to preclude a recovery when he gave a signal to come ahead as he
stepped between cars, when there was evidence that the signal may have
been given by some other employee and evidence of a defective coupler.8°

An error in the charge must be eliminated by a retraction of it, or a proper
explanation, which will remove the wrong impression made by it, and the
giving of another correct, but conflicting, instruction, does not answer the
purpose, as it does not produce the desired result. Thus where the court’s
instructions authorized a finding of contributory negligence without the
employee being negligent, it is not cured by another instruction authorizing
such a finding if he had placed himself in a perilous situation.8!

A refusal to charge that under the rules of the company absolute knowl-
edge of a situation was required of the deceased, who obeyed a hand signal
as against a fixed signal was not error, when to justify such an instruction
. and unreasonable interpretation of the rules would be necessary.82 If the
defendant offers instructions based on the supposed violation by a conductor
of rules promulgated to insure the safe operation of its trains by him, they
should be so framed as not to require impossibilities of such conductor
under the rules, but so as to permit performance by him of all other duties
imposed, without incurring the liability of negligence or contributory neg-
ligence, in case of personal injuries sustained by reason of the negligence
of the defendant, or of its other employees, and if not so framed it is not
error to refuse them.*?

§ 177. Instructions upon Assumption of Risk.—The defense of as-
sumed risk being still available as at common law, except where a federal
statute is violated, the defendant is entitled to have the same so submitted
to the jury, without any change as effected by state statutes.84 So when it
is pleaded and supported by the evidence, it is the duty of the court to in-

79. Ross v. St. Louis, etc., R. Co., 93
Kan. 517, 144 Pac. 844.

80. Grand Trunk, ete, R. Co. w.
Lindsay, 233 U. S. 42, 58 L. Ed. 838, 34
S. Ct. 581, affirming 120 C. C. A. 166,
201 Fed. 836.

81. Error cured by other proper in-
struction—Raines v. Southern R. Co.,
169 N. C. 189, 85 S. E. 294.

82. Violation of rules—Southern R.
Co. v. Hill, 139 Ga. 549, 77 S. E. 803.

83. Culp v. Virginian R. Co. (W.
Va.), 87 S. E. 187.

84. Instructions on assumption of
risk—Seaboard Air Line Railway vw.
Horton, 233 U. S. 492, 58 L. Ed. 1062,
34 S. Ct. 635, reversing 157 N. C. 146,
72.8. E. 958.

In Gulf, etc, R. Co. v McGinnis,
228 U. S. 173, 57 L. Ed. 785, 33 S. Ct
426, though reversing 147 S. W. 1188,
said that the defense of assumption of
risk was presented in “a full and fair
general charge.”

See ante, “Assumption of Risk,”
Chap. XI.
361 § 177

INSTRUCTIONS.

struct thereon.85 But where it is not imposed as a defense,8° or when a
federal statute is violated, there is no occasion to charge upon this as a de-
fense.87 Though in such a case it is not error for the trial judge in his
charge to remark upon the general law of assumption of risk, when he had
charged in unmistakable terms that the federal act alone governed the case
and it does not seem that the jury could have misunderstood him.’8
Knowledge being the prime element of assumption of risk, a charge
thereon should be given even when the injury is caused by a defect amount-
ing to negligence,8® and for an employee to assume the risk of a danger with
knowledge, it is not necessary that it be so glaring that an ordinarily prudent
person in the exercise of ordinary care would not attempt the work,’ but
where knowledge of a danger is not shown it is not error to refuse an in-
struction thereon.®! An instruction on assumption of risk which authorized
a recovery for the plaintiff if he did not know that appliances were not rea-
sonably safe or suited for the purpose for which they were being used, is
defective, when it leaves out the question whether the danger was so obvious
that an ordinarily prudent person under the circumstances would have ob-
served and appreciated it, but is cured by another instruction embracing this

omitted part.9?

85. Barker v. Kansas, etc., R. Co., 88
Kan. 767, 129 Pac. 1151, 43 L. R. A,
N. S., 1121.

86. Devine v. Chicago, etc., R. Co.,
266 Ill. 248, 107 N. E. 595, affirmed in
36 S. Ct. 27.

87. When federal statute violated.—
Atlantic, etc., R. Co. v. Whitney, 65
Fla. 72, 61 So. 179.

88. Bramlett v. Southern R. Co., 98
S. C. 319, 82 S. E. 501.

89. Knowledge of defects.—Southern
R. Co. v. Jacobs, 116 Va. 189, 81 S. E.
99, affirmed in 36 S. Ct. 588.

Where the plaintiff was injured by
a pile of cinders near the track and
the defense of assumed risk from
knowledge was set up and supported by
evidence, it is held error to instruct
that “The court further instructs the
jury that knowledge by the plaintiff of
the unsafe character or condition of
the said roadway is of itself no defense
to an action for injury caused to him
thereby. Such knowledge, however, if
the jury believe from the evidence that
he had such knowledge, may be consid-
ered by the jury along with all the evi-
dence in the case in determining whether
the plaintiff was himself guilty of neg-
ligence, which contributed to produce
the injury mentioned in the declara-
tion; but the fact that the plaintiff may
himself have been guilty of contribu-
tory negligence shall not bar a recov-
ery, but the damages shall be dimin-
ished by the jury in proportion to the

amount of contributory negligence, if
such there were, which they may be-
lieve from the evidence was attribu-
table to said plaintiff under the circum-
stances,’ and to refuse an instruction
asked by plaintiff that “The court in-
structs the jury that if they believe
from the evidence that the existence
of the cinder pile was known to the
plaintiff, or that he had been working
for the Southern Railway at Lawrence-
ville for more than a year, and that the
cinders had been piled at the same
place in the way described by the wit-
nesses 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.” Southern R. Co.
vw Jacobs, 116 Va. 189, 81 S. E. 99, af-
firmed in 36 S. Ct. 588.

90. Spinden v. Atchison, etc., R. Co.,
95 Kan. 474, 148 Pac. 747; Barker v.
Kansas, etc., R. Co., 94 Kan. 176, 146
Pac. 358.

91. Central Vermont R. Co. v. White,
238 U. S. 507, 59 L. Ed. 1433, 35 S.
Ct. 865, affirming 87 Vt. 330, 89 Atl.
618.

92. Same—Defects cured by other
instructions.—Louisville, etc., R. Co. v.
Henry, 167 Ky. 151, 180 S. W. 74.
8 177

FEDERAL EMPLOYERS LIABILITY ACT.

362

As the employee assumes the risk of ordinary dangers only, when the
evidence shows the injury to have resulted more from an ordinary danger
than an extraordinary one, a charge on assumption of risk should be given,9?
and instructions should be so worded as to distinguish ordinary from extra-

ordinary acts.%

If an instruction covers only ordinary risk, it is properly

refused where the evidence shows an extraordinary risk,®® or vice versa; %
or the request may be modified by the court to meet the evidence.®7

The. failure of a party to request a charge is a waiver of any objection to
the failure of the court to do so; 98 and a requested charge which embraces
two distinct matters one of which might be of effect and the other of no

effect is properly refused.9

93. Ordinary and extraordinary dan-
gers.—Cincinnati, etc., R. Co. v. Gold-
ston, 156 Ky. 410, 161 S. W. 246.

94. Cincinnati, etc., R. Co. v. Gold-
ston, 156 Ky. 410, 161 S. W. 246.

“In describing the negligent move-
ment of the train the instruction
should have used the terms ‘violent,
unusual, and unnecessary, which are
commonly used in such instructions,
instead of the terms ‘quick and violent
and sudden and unusual.’ A jerk in
the operation of a heavy freight train
might be violent, and nevertheless nec-
essary and usual in such operation.”
Cincinnati, etc., R. Co. v. Goldston, 156
Ky. 410, 161 S. W. 246.

95. Chesapeake, etc., R. Co. v. De
Atley (U. S.), 36 S. Ct. 564; Arizona,
etc, R. Co. v. Bryan (Ariz.), 157 Pac.
376.

96. St. Louis, etc., R. Co. v. Rodgers,
118 Ark. 263, 176 S. W. 696.

“The court did not err in refusing
appellant’s prayer for instruction’ No.
7, in which the appellant sought to
have the jury told that the deceased
Rodgers assumed ‘those unusual and
extraordinary risks that were plainly
observable to the eyes of an ordinarily
prudent man,’ etc. In _ appellant’s
prayer for instruction No. 6 the court
told the jury that Rodgers, when he
entered the employ of the appellant,
‘assumed the risk of the ordinary and
usual dangers of the occupation, and
explained to them and told them that
if they believed from the testimony
that Rodgers’ injury and death re-
sulted from one of the ordinary and
usual dangers to which brakemen are
exposed in the course of their work, as
usually and customarily conducted,’
the verdict should be for the defendant.
Under the evidence, this instruction was
all that was demanded and all that it
was proper to give to correctly submit
the issue of assumed risk. There was
no testimony to warrant a submission

The refusal to give an instruction requested

to the jury of the issue as to whether
there was an unusual risk which was
so obvious that Rodgers must have
known and appreciated the danger
arising therefrom. See St. Louis, etc.,
R. Co. v. Vann, 98 Ark. 145, 150, 135
S. W. 816. The instruction, as an ab-
stract proposition of law, was not cor-
rect, because it failed to make a proper
distinction between contributory neg-
ligence and assumed risk.” St. Louis,
etc., R. Co. v. Rodgers, 118 Ark. 263,
176 S. W. 696.

97. Louisville, etc., R. Co. v. Stewart
(U. S.), 36 S. Ct. 586.

An instruction, where the evidence
shows that a switching movement was
being made, and it became necessary
to apply the air brakes suddenly to
avoid injury to property, that the en-
gineer assumed the risk incident to his
employment, and that, if the applica-
tion of the air brakes was made upon
a reasonable belief that it was nec-
essary to apply them in order to avoid
injury to property, they should find
for the defendant, is properly qualified
by charging, unless they found that
the emergency was brought about by
the defendant’s servants in the negli-
gent operation of the train before the
brakes were applied. Louisville, etc.,
R. Co. v. Stewart (U. S.), 36 S. Ct. 586.
- 98. Requested charges—Waiver by
failure to request—Central Vermont
R. Co. v. White, 238 U. S. 507, 59
L. Ed. 1433, 35 S. Ct. 865; Campbell
v. Canadian, etc. R. Co., 124 Minn.
245, 144 N. W. 772.

99. Same—Embracing two proposi-
tions.—Boston, etc., Railroad v. Ben-
son, 124 C. C. A. 68, 205 Fed. 876.

In an action based on the negligence
of a fellow servant which is not an
ordinary risk covered by the rule of
assumption of risk, the following in-
struction was for the above reason
properly refused. “The plaintiff is
bound to prove that the danger re-
363 §-177

INSTRUCTIONS.

upon the subject of assumption of risk, is not error where the instruction
was couched in such general and sweeping terms that it was not calculated
to give the jury an accurate understanding of the law upon that subject,
or to direct, their attention to the particular phase of the case to which it
was deemed applicable! If the defendant by its answer raises the issue of
assumption of risk, it cannot complain of a charge thereon; and especially
when it also requests such a charge, the only difference between the one
given and that requested being that the requested one made no reference
to the burden of proof.?

sulting in his injury, if you find there
was such a danger, was not known to
the deceased, and in the exercise of or-
dinary: care would not have come to
his knowledge. If you believe that the
tisk of injury from the separation of
the train in the manner proved in this
case was an ordinary risk of Mr. Sum-
ner’s employment, and was known, or
should have been known, and appre-
ciated by him, you are instructed that
Mr. Sumner assumed the risk of in-

jury from this cause, and you will re-
turn a verdict for the defendant.”
Boston, etc., Railroad v. Benson, 124
Cc. C. A. 68, 205 Fed. 876.

1. Same—Too sweeping and general
in terms.—Norfolk, etc., R. Co. v.
Earnest, 229 U. S. 114, 57 L. Ed. 1096,
33 8. Ct. 654, Ann. Cas. 1914C, 172.

2. Same—As waiver of objection.—
Pelton v. Illinois Cent. R. Co., 171
Towa 91, 150 N. W. 236.
CHAPTER XXVI.

DAMAGES.

. Spon Cause of Action Accruing to Injured Employee, § 178.
. Elements of Damage to Employee, § 179.
. Upon Cause of Action Accruing upon Death of Injured Employee, § 180.
. Pecuniary Loss to Beneficiaries, §§ 181-185.
a. General Determination, § 181.
b. Surviving Wife, § 182.
c. Children, § 183.
d. Surviving Parents, § 184.
e. Next of Kin, § 185.
5. Apportionment of Damages among Beneficiaries, § 186.
6. Right of Administrator to Commission on Recovery, § 187.
7. Apportionment or Diminution of Damages in Case of Contributory Negli-
gence, § 188.
8. Amount of Damages, §§ 189-193.
a. In General, § 189.
b. Recovery for Widow and Children, § 190.

em wwe

c. Recovery for Parents, § 191.
d. Recovery for Pain and Suffering of Deceased, § 192.
e. Recovery for Personal Injuries, § 193.

§ 178. Upon Cause of Action Accruing to Injured Employee.—The
federal act, says Mr. Justice Lurton, declares two distinct and independent
liabilities, resting upon the common foundation of a wrongful injury, but
based upon altogether different principles.t It plainly declares the liability
of the carrier to its injured servant, and if he survives, he may recover
such damages as will compensate him for his expense, loss of time, suffering,
and diminished earning power.? But if he does not live to recover upon
his own cause of action, what then? As to causes of action accruing under
the act of 1908, prior to its amendment by the act of 1910, it is settled be-
yond controversy that the cause of action given by the act to the deceased
did not survive his death, and that in an action by his personal representa-
tive for the benefit of the persons named in the act, no recovery could be
had for the conscious suffering of the deceased nor for any other item or
element of damage for which he might have recovered had he lived.8

1. Damages—Distinct liabilities cre-
ated by act.—Michigan Cent. R. Co. v.
Vreeland, 227 U. S. 59, 57 L. Ed. 417,

227 U. S. 59, 57 L. Ed. 417, 33 S. Ct.
192, Ann. Cas. 1914C, 176; St. Louis,
etc., R. Co. v. Hesterly, 228 U. S. 702,

33 S. Ct. 192, Ann. Cas. 1914C, 176.

2. Damages upon cause of action ac-
cruing to injured employee.— Michigan
Cent. R. Co. v7. Vreeland, 227 U. S. 59,
57 L. Ed. 417, 33 S. Ct. 192, Ann. Cas.
1914C, 176.

3. Same—Damages in case of death
—Prior to Amendment of April 5, 1910.
—Michigan Cent. R. Co. v. Vreeland,

57 L. Ed. 1031, 33 S$. Ct. 703; Cain wv.
Southern R. Co. (C. C.), 199 Fed. 211,
212; Fulgham 7. Midland Valley R. Co.
(C. C.), 167 Fed. 660; Walsh v. New
York, etc., R. Co. (C. C.), 173 Fed. 494;
Thomas 7. Chicago, etc, R. Co. (D.
C.), 202 Fed. 766; Melzner v. Northern
Pac. R. Co., 46 Mont. 277, 127 Pac.
1002.

364
365 DAMAGES. §§ 178-179

Now, however, by § 2 of the act of April 5, 1910, adding § 9 to the act
of April 22, 1908, it is expressly provided that the right of action given by
the act to the person suffering injury shall, in the event of his death, sur-
vive to the personal representative for the benefit of the persons named in
the act, but with only one recovery for the same injury. This amendment
clearly contemplates that while there is to be but one recovery for the same
injury in cases resulting in the death of the person injured, that one recovery
is to be had upon two independent and essentially different causes of action
combined into one, and that, in addition to the damages recoverable for the
pecuniary loss or injury in the independent cause of action given by the
act as it originally stood, the plaintiff is now entitled to recover a further
sum upon the cause of action given to the person injured, and which now
survives; so that recovery may now be had for the injury and suffering
sustained by the deceased, as well as for the pecuniary loss or injury result-
ing to the beneficiaries from his death.4 In Kansas, etc., R. Co. v. Leslie,
238 U.S. 599, 59 L. Eid. 1478, 35 S. Ct. 844, the court said:

“Tt is said the court below erred in approving the charge permitting re-
covery for pecuniary loss to widow and child and also for conscious
pain and suffering endured by deceased in the brief period—tless than
two hours—between injury and his death. This point having been
considered, the right to recover for both these reasons in one suit was
recently sustained. St. Louis, etc., R. Co. uv. Craft, 237 U. S. 648, 59
L. Ed. 1160, 35 S. Ct. 704.”

However, in cases where death is instantaneous there cannot be a recovery
for pain and suffering.5

§ 179. Elements of Damage to Employee.—The question of the
proper measure of damages is inseparably connected with the right of ac-
tion, and in cases arising under the Federal Employers’ Liability Act it
must be settled according to general principles of law as administered in
the Federal courts.6 In Nashville, etc., Railway v. Henry, 158 Ky. 88, 164
S. W. 310, 314, the court said:

“Though the difference between our measure of damages and that adopted
by the federal courts is but slight, yet, in view of the fact that plaintiff’s

4, Same—Damages in case of death
subsequent to Amendment of April 5,
1910.—Northern Pac. R. Co. v. Maerkl
(C. C.), 198 Fed. 1; Cain v. Southern
R. Co. (C. C.), 199 Fed. 211; Kansas,
etc., R. Co. v. Leslie, 238 U. S. 599, 59
L. Ed. 1478, 35 S. Ct. 844;. St. Louis,
etc., R. Co. v. Craft, 237 U. S. 648, 59
L. Ed. 1160, 35 S. Ct. 704. See, also,
Michigan Cent. R. Co. v. Vreeland, 227
U. S. 59, 57 L. Ed. 417, 33 S. Ct. 192,
“Ann. Cas. 1914C, 176; St. Loutis, etc.,
R. Co. v. Hesterly, 228 U. S. 702, 57
L. Ed. 1031, 33° S. Ct. 703. Contra:
Thomas v. Chicago, etc., R. Co. (D.
C.), 202 Fed. 766; St. Louis, etc, R.

Co. v. Conarty, 106 Ark. 421, 155 S.
W. 93, reversed on other grounds in
35 S. Ct. 785.

5. Same—When death instantaneous.
—Moffett v. Baltimore, etc., R. Co.,
135 C. C. A. 607, 220 Fed. 39; Carolina,
etc., Railway v. Shewalter, 128 Tenn.
363, 161 S. W. 1136, Ann. Cas. 1915C,
605.

As to the length of time an employee
must live for action to survive, see
ante, “Effect When Death Instantane-
ous,” § 79. >

6. Elements of damage—Following
Federal rule—Chesapeake, etc., R. Co.
v. Kelly (U. S.), 36 S. Ct. 630, 632.
§ 179 FEDERAL EMPLOYERS LIABILITY ACT. 366

action is predicated on federal laws, we conclude that it is the better
and safer practice for trial courts to adopt the measure of damages
sanctioned and approved by the Federal Supreme Court. Under its
rulings the plaintiff, in an action for personal injuries, is entitled to
recover, for his expenses incurred for medical attendance, a reasonable
sum for his pain and suffering, and also a fair recompense for the loss
of what he would otherwise have earned in his trade or profession,
and has been deprived of his capacity for earning by the wrongful act
of the defendant. Vicksburg, etc., R. Co. v. Putnam, 118 U. S. 545,
30 L. Ed. 257, 7 8. Ct. 1." 7

The plaintiff's recoverable damages should include his expenses, loss of
time, suffering, and diminished earning power.8 In Chesapeake, etc., R.
Co. v. Carnahan (U. S.),% the court held that an instruction to the jury,
“that if they believe from a preponderance of the evidence that the defend-
ant is liable to the plaintiff in this action, then is assessing damages against
the defendant, they may take into consideration the pain and suffering of
the plaintiff, his mental anguish, the bodily injury sustained by him, his
pecuniary loss, his loss of power and capacity for work and its effect upon
his future” is not objectionable, as permitting a recovery of speculative and
remote damages; in view of the evidence that the plaintiff was caught be-
tween the tender of his engine and the boiler head in the cab, remained in
this position for forty-five or fifty minutes, his leg was badly mashed and
burned, necessitating an amputation between the knee and the thigh; and
the further instruction of the trial court “that in order for the plaintiff to
recover in this case he must prove by a preponderance of the evidence that
the injuries he sustained were the direct and proximate result of the neg-
ligence of the defendant.”

Where the plaintiff sued to recover for the loss of both hands the court
should not instruct that the damages be returned in such a sum as will “com-
pensate ‘him for injuries to his person” when it afterwards enumerated the
damages to be considered, namely; loss of time, physical and mental suffer-
ing, and permanent injury to him lessening his power to earn money; and
the words “diminution of” should also be substituted for the words “per-
manent injury to him lessening” so that this part will read “any diminu-
tion of his power to earn money.” 1 In other words, the injuries to his
person are measured by his pain and suffering, and the permanent reduc-
tion of his power to earn money. It is not contemplated that he shall re-
ceive damages “for injuries to his person,” and in addition thereto damages
for physical and mental suffering, and for the permanent reduction of his
power to earn money. To do so is necessarily to allow double damages.” 11

7. See, also, Cincinnati, etc., R. Co.
v. Nolan, 161 Ky. 205, 170 S. W. 650,
following Nashville, etc., Railway v.
Henry, 158° Ky. 88, 164 S. W. 310.

8. Includes loss of time, mental an-
guish—Southern R. Co. v. Peters
(Ala.), 69 So. 611, 614.

9. 36 S. Ct. 594.

10. No recovery for injuries to per-
son in addition to pain and suffering..
—Nashville, etc, R. Co. v. Banks, 156
Ky. 609, 161 S. W. 554.

11. Nashville, etc., Railway v. Henry,
158 Ky. 88, 164 S. W. 310, 314.
367 DAMAGES.

§ 179

Should the plaintiff ask a recovery for loss of time and a diminution of
his earning power, the jury should be told to estimate the last element
only from the ending of the allowance for lost time.!?

The plaintiff's condition must be the result of the injury, and the ques-
tion of whether it is or not may be for the jury.13 The mental suffering
which would naturally result from physical injury, wrongfully inflicted,
is a proper element of the damages which may be awarded, but the dam-
ages recoverable from this source must be confined to those which are the
natural and proximate result of the injury as it affects the person him-
self, and the concern which may be caused by its possible or probable
effect upon others may not be considered.1# So too, plaintiff may re-
cover for his suffering in mind and body while confined under an over-
turned engine, where scalding steam was playing on his leg from his
ankle to, and around, his hip.15 But it is not proper to take into con-
sideration that the plaintiff was worried or apprehensive because he had a
child to educate who had never been to school, and he was rendered in-
capable of sending him.1®

Where it is shown that there will be future effects from an injury it is

12. Diminution of earning power, be-
gins when loss of time ends.—Nash-
ville, etc., Railway v. Henry, 158 Ky.
88, 164 S. W. 310; Louisville, etc. R.
Co. v. Patrick, 167 Ky. 118, 180 S.
W. 55. 6

While an instruction after directing
the jury, in case they should find for
the plaintiff, to find for his loss of time
and for pain and suffering, if any, they
were authorized to find “such further
sum as you may believe from the evi-
dence will reasonably compensate him
for the impairment, if any, of his
power to earn money” did not qualify
this last element-of recovery by ex-
pressly confining it to appellee’s
power to earn money in the future or
by directing that any allowance for
the loss of power to earn money should
begin when the time lost had ended,
yet that is the meaning of the instruc-
tion when read as a whole. Further-
more, if it was desired to have a more
specific instruction, it should have
asked the court to make it so; and, hav-
ing failed to call the court’s attention
to the immaterial error, it will not now
be permitted to complain. Chesa-
peake, etc, R. Co. v. Shaw, 168 Ky.
537, 182 S. W. 653.

13. Condition as result of injury—
Question for jury—Where three phy-
sicians testify that plaintiff was suffer-
ing with tuberculosis of the spine
caused by a fall across a rail, and four
other physicians testify that his condi-
tion was the result of other causes,

whether he was in fact suffering with
tuberculosis of the spine induced by
the fall was a question for the jury.
Bolch v. Chicago, etc., R. Co. (Wash.),
155 Pac. 422.

14. Pain and suffering as proximate
result of injury.—Ferebee v. Norfolk,
etc., R. Co., 163 N. C. 351, 79 S. E. 685,
52 L. R. A, N.S. 1114; S.C. 167 N.
C. 290, 83 S. E. 360, affirmed in 35 S.
Ct. 781.

15. Texas, etc., R. Co. v. Rasmussen
(Tex. Civ. App.), 181 S. W. 212.

An instruction that, “the jury * * *
in assessing damages against the de-
fendant, they may take into considera-
tion the pain and suffering of the
plaintiff, his mental anguish, the bodily
injury sustained by him, his pecuniary
loss, his loss of power and capacity
for work and its effect upon his fu-
ture,” is not objectionable as being too
broad and permitting the jury to con-
sider the possibility of plaintiffs pro-
motion, or speculative profits from
collateral. undertakings, in which he
might have engaged but for the injury,
when there is no evidence to sustain
these matters, and the jury had been
expressly instructed not to consider
them, and cautioned counsel not to
argue them. Chesapeake, etc., R. Co.
wv. Carnahan (Va.), 86 S. E. 863, 867,
affirmed in 36 S. Ct. 594.

16. Ferebee «. Norfolk, etc., R. Co.,
163 N. C. 351, 79 S. E. 685, 52 L. R.
A., N. S., 1114; S. C., 167 N. C. 290,
83 S. E. 360, affirmed in 35 S. Ct. 781.
§ 179 FEDERAL EMPLOYERS LIABILITY ACT. 368
proper to include them in the award of damages.17 :

However, where the evidence establishes without contradiction that
plaintiff’s injuries are permanent, a clause in the charge to the jury, on
the question of the measure of damages, that the jury, if they find for the
plaintiff, may allow him for ‘such prospective suffering and loss of health,
if any, as the jury may believe from all the evidence before them in this
case, he will sustain by reason of such injuries,’ is not error, nor in con-
flict with the rule that in such cases it is the duty of the court to instruct
the jury that only such damages as are reasonably certain to result there-
from can be compensated by their verdict.1§

If a person receives an injury through the negligent act of another, and
the injury is afterwards aggravated, and a recovery retarded, through
some accident not the result of want of ordinary care on the part of the
injured person, he may recover for the entire injury sustained, as the
law regards the probability of such aggravation as a sequence and natural
result likely to flow from the original injury.19 While the defendant com-
pany is not liable for increased injury resulting from a second surgical
operation, if it is due to the unskillfulness of the surgeon who performed

17. Future effects of injury.—Chesa-
peake, etc., R. Co. v. Carnahan (U. S.),
36 S. Ct. 594.

18. Prospective suffering and loss of
health.—Bower v. Chicago, etc., R. Co.,
96 Neb. 419, 148 N. W. 145.

Personal inconvenience.—Where the
court instructed the jury that, if they
found for the plaintiff, they would find
such “an amount of damages as will
fully compensate him for all suffering
of mind and body inflicted upon him
by his injury and for the personal in-
convenience and the loss of time and
expense of care that naturally and
proximately resulted from the injury,”
and applied the same rule in case they
should find that the plaintiff’s injuries
are permanent; and error was assigned
for the reasons that “personal incon-
venience is not an element of damages
for which the appellee may recover,”
for either temporary or permanent in-
juries; and without further explana-
tory instructions the words “personal
inconvenience” are too indefinite and
uncertain. Further objection was made
to the use of the words “full compen-
sation.” The court held that these ob-
jections to the instruction were fully
answered in Washington, etc., R. Co.
v. Harmon, 147 U. S. 571, 37 L. Ed.
284, 13 S. Ct. 557, where substantially
the same worded instruction was prop-
erly approved. Arizona, etc., R. Co. v.
Bryan (Ariz.), 157 Pac. 376.

19. Accidental aggravation of injury.
—Smith v. Northern Pac. R. Co., 79
Wash. 448, 140 Pac. 685.

The respondent, among other inju-
ries, sustained a fracture of the femur
of the left leg, and when still in the
hospital, although going about on
crutches, he fell while attempting to
descend a stairway and refractured the
bone at the place of the original frac-
ture. This accident confined him to
his bed for an additional 11 weeks, and
correspondingly increased his suffer-
ings and delayed his recovery. The
appellant introduced evidence tending
to show that the respondent was in an
intoxicated condition at the time of
the second fracture, and that such frac-
ture was the direct and proximate re-
sult of his intoxicated condition. In
its charge to the jury upon this ques-
tion the court instructed them that,
if they found that the respondent was
in an intoxicated condition at the time
he received his second injury, and that
such condition was the direct and
proximate cause of such second injury,
then the appellant would not be liable
in damages for the additional suffering
and delay in recovery caused thereby,
but would be liable only for such dam-
ages as were the direct and proximate
result of the original injury, adding
thereto that, if they found that the re-
spondent was intoxicated at the time
he fell and fractured his leg the sec-
ond time, but that his fall was not the
result of his intoxicated condition,
then they should disregard such fact
in making up their verdict, is proper.
Smith v. Northern Pac. R. Co., 79
Wash. 448, 140 Pac. 685.
369 DAMAGES.

§ 179

the first operation, it is liable if such second operation was made neces-
sary as a proximate result of defendant's negligence.?°

An employee is entitled to an assessment of damages based on the con-
dition he was in at the time of the trial.2!_ But in an action tried within
two months after a claimed serious, and unexpected, permanent malady
developed, where the evidence as to permanency was regarded so unsatis-
factory to the trial court that the verdict was considered excessive to the
extent of one-half, a new trial should have been granted, instead of the
reduction.2?

A person who sustains damage at the hands of another, whether through
breach of contract or through tort, is required to take all reasonable meas-
ures to reduce his damage, 2? but this doctrine cannot be carried to the
extent of holding that this plaintiff, who had already submitted to an
operation which a “great proportion of men * * * do not survive,”
and a number of lesser operations, is under any obligation to submit to an-
other surgical operation in pursuit of an uncertain prospect of lessening
his injury and his damage.?#

For a personal injury the plaintiff’s expenses for nursing were properly
allowed as an element of damages.25

Temporary loss of sexual power is the usual concomitant of almost
every severe injury or illness, and cannot usually be considered as a dis-
tinct element of damages.2® At the same time, where there is tangible
proof that by reason of direct injury to the generative organs or the
nerves that prompt their action, and resulting impotence, there is no good
reason why this element may not be considered. Where the proof rests
upon opinion evidence, it should be closely scrutinized, but it cannot, in
all cases, be rejected entirely. Thus where there is evidence of injury to
the pudic nerve, and also evidence that every known test indicates present

20. Increased injury from surgicalop- damages. Wicker 7. Hoppock (U. S.)}
erations.—Sears v. Atlantic Coast Line

R. Co., 169 N. C. 446, 86 S. E. 176.

21. Result of injury at time of trial
determines damages.— Otos wv. Great
Northern R. Co., 128 Minn. 283, 150 N.
W. 922, affirmed in 239 U. S. 349, 36
S. Ct. 124.

22. Permanency of injury not devel-
oped at time of trial_—Rief v. Great
Northern R. Co., 126 Minn. 430, 148 N.
W. 309.

23. Duty to lessen damage.—Otos v.
Great Northern R. Co., 128 Minn. 283,
150 N. W. 922, affirmed in 239 U. &.
349, 36 S. Ct. 124; Delano 7. Roberts
(Mo. App.), 182 S. W. 771.

“Ordinarily a person seeking to re-
cover damages for the wrongful act
of another must do that which a rea-
sonable man would do under the cir-
cumstances to limit the amount of the

Fed Act—24

6 Wall. 94, 18 L. Ed. 752; The Balti-
more (U. S8.), 8 Wall. 377, 387, 19 L.
Ed. 463; United States v. Smith, 94 U.
S. 214,°218, 24 L. Ed. 115; Warren v.
Stoddart, 105 U. S. 224, 229, 26 L. Ed.
1117; United States v. United States
Fidelity, etc., Co., 236 U.'S. 512, 59 L.
Ed. 696, 35 S. Ct. 298.” Chesapeake,
etc., R. Co. v. Kelly (U. S.), 36 S. Ct.
630, 632.

24. Same—By submission to uncer-
tain surgical operation.—Otos v. Great
Northern R. Co., 128 Minn. 283, 150 N.
W. 922, affirmed in 239 U. S. 349, 36
S. Ct. 124.

25. Expenses of nursing.—Ferebee v.
Norfolk, etc., R. Co., 167 N. C. 290, 83
S. E. 360, affirmed in 35 S. Ct. 781.

26. Loss of sexual power as element
of damages.—Bucher v. Wisconsin
Cent. R. Co., 139 Wis. 597, 120 N. W.
518.
§§ 179-180 FEDERAL EMPLOYERS’ LIABILITY ACT. 370
impotence, and there is expert evidence based upon this alleged organic
injury that impotence will be permanent, the court cannot say as a matter
of law that this evidence should have been wholly disregarded.?7

If from the shock attending the injury there resulted an impairment of
the plaintiff's power of speech, so that he became inflicted with stammer-
ing or stuttering, his humiliation, of course, was proper to be considered in
an award of damages.?8

As the plaintiff cannot recover more damages than the amount claimed
in his pleadings, the fact that an instruction mentions the amount of dam-
ages, and limits the recovery, to that claimed in the declaration, does not
render it objectionable where the same instruction defined the elements
entering into the ascertainment of damages, and expressly told the jury
that such damages as they allowed should “seem to them just and fair.” 29
In Chesapeake, etc., R. Co. v. Carnahan (U. S.), 36 S. Ct. 594, 595, the
court said:

“Tt is also objected that the instruction ‘allowed the jury to indulge in
speculation and conjecture; invited their attention to the sum of
$35,000, and allowed the jury to give such sum as damages as to them
might “seem just and fair” without stating that the damages could be
only such as were proved by the evidence to have proximately re-
sulted from the negligent act complained of. The objection is un-
tenable. As we have seen, the court explicitly enjoined upon the jury
that there must be a proximate and causal relation between the dam-
ages and the negligence of the company, and the reference to the
sum of $35,000 was a limitation of the amount stated in the declara-
tion. There could have been no misunderstanding of the purpose of
the instruction.”

§ 180. Upon Cause of Action Accruing upon Death of Injured
Employee.—Since the amendment of 1910, the beneficiaries are entitled to
recover for the pain and suffering of the employee if he survived the in-
jury, in addition to their recovery for pecuniary loss.3° The damages re-
coverable upon the death of an employee when his action survives to the
personal representative are only those “covering his loss and suffering while
he lived but taking no account of his premature death or of what he would
have earned or accomplished in the natural span of life.” 31 But this re-
covery for death and pain and suffering constitute a separate item of dam-
ages.32 Except for the provision of a survival of the recovery for pain and

27. Otos v. Great Northern R. Co.,
128 Minn. 283, 150 N. W. 922, affirmed
in 239 U. S. 349, 36 S. Ct. 124.

28. Impairment of speech—Burke wv.
Chicago, etc., R. Co., 131 Minn. 209,
154 N. W. 960.

29. Limited to amount claimed in
action.—Chesapeake, etc, R. Co. v.
Carnahan (Va.), 86 S. E. 863, affirmed
in 36 S. Ct. 594.

30. Damages upon cause of action
accruing upon death of injured em-

ployee.—See ante, “Nature of Cause of
Action—Abatement, Revival and Sur-
vival,” Chap. XII.

, 31. St. Louis, etc. R. Co. v. Craft,
237 U. S. 648, 59 L. Ed. 1160, 35 S.
Ct. 704. See, also, Jorgenson v. Grand
Rapids, etc, R. Co. (Mich.), 155 N.
W. 535.

32. Two independent recoveries pro-
vided.—Calhoun v. Great Northern R.
Co. (Wis.), 156 N. W. 198.
371 DAMAGES.

§ 180

suffering, the action for death is independent of any cause of action which
the decedent had, and includes no damages which he might have recovered
for his injury if he had survived. It is one beyond that which the decedent
had—one proceeding upon altogether different principles. It is a liability
for the loss and damage sustained by relatives dependent upon the decedent.
It is, therefore, a liability for the deprivation and loss pecuniarily resulting
to them from the wrongful death of the decedent, and for that only.22 So
in making an award based upon the deprivation of future benefits the jury
must take into account the earning power of the money that is to be
awarded, as it is self-evident that a given sum of money in hand is worth
more than the like sum of money payable in the future, and an award
which excludes this element from consideration will afford more than com-
pensation.34

The instructions to the jury based thereon, to avoid error, should be
clearly limited to such pecuniary loss.35 Thus it is error for the trial judge
to instruct the jury that the measure of his damages is for the loss of life
of the intestate estimated at the present value of his net income for the

33. Limited to pecuniary loss.—
United States—Michigan Cent. R. Co.
v. Vreeland, 227 U. S. 59, 57 L. Ed.
417, 33 S. Ct. 192, Ann. Cas. 1914C, 176;
American R. Co. v. Didricksen, 227 U. S.
145, 57 L. Ed. 456, 33 S. Ct. 224; Gulf,
etc., R. Co. v. McGinnis, 228 U. S. 173,
57 L. Ed. 785, 33 S. Ct. 426; Cain wv.
Southern R. Co. (C. C.), 199 Fed. 211,
212; Thomas v. Chicago, etc., R. Co.
(D. C.), 202 Fed. 766; Kansas, etc., R.
Co. v. Leslie, 238 U. S. 599, 59 L. Ed.
1478, 35 S. Ct. 844, 846; Garrett v.
Louisville, etc., R. Co. (C. C.), 197 Fed.
715, affirmed in 35 S. Ct. 32; Norfolk,
etc., R. Co. v. Holbrook, 235 U. S. 625,
59 L. Ed. 392, 35 S. Ct. 143; Chesa-
peake, etc., R. Co. v. Kelly (U. S.), 36
S. Ct. 630; Hogan v. New York, etc.,
R. Co., 139 C. C. A. 328, 223 Fed. 890.

Connecticut—Farley wv. New York,
etc., R. Co., 87 Conn. 328, 87 Atl. 990.

Kentucky—Louisville, etc., R. Co. v.
Johnson, 161 Ky. 824, 171 S. W. 847;
Louisville, etc, R. Co. 7. Stewart,
157 Ky. 642, 163 S. W. 755, correcting
156 Ky. 530, 161 S. W. 557.

North Carolina—Dooley v. Seaboard
Air Line R. Co., 163 N. C. 454, 79 S.
E. 970; Irvin v. Southern R. Co., 164
N. C. 5, 80 S. E. 78; Kenney v. Sea-
board Air Line R. Co., 165 N. C. 99,
80 S. E. 1078.

South Carolina—Bennett v. Southern
Railway (S. C.), 79 S. E. 710, 715, af-
firmed in 34 S. Ct. 566.

Washington. — Fogarty v. Northern
Pac. R. Co., 74 Wash. 397, 133 Pac.
609; S. C., 85 Wash. 90, 147 Pac. 652.

West Virginia—Culp v. Virginian R.
Co. (W. Va.), 87 S. E. 187.

34. Same—Earning power of award
to be considered.—Chesapeake, etc., R.
Co. v. Kelly (U. 8.), 36 S. Ct. 630.

35. Same—Instructions.—Culp v. Vir-
ginian R. Co. (W. Va.), 87 S. E. 187.

The following instruction was held
erroneous by the United States Su-
preme Court as not properly defining
the pecuniary loss. “If you find for
the plaintiff, you should assess the
damages at such sum as you believe
from a preponderance of the evidence
would be a fair compensation for the
conscious pain and suffering, if any,
the deceased underwent from the time
of his injury until his death and such
further sum as you find from the evi-
dence will be a fair and just compen-
sation with reference to the pecuniary
loss resulting from decedent’s death to
his widow and child; and in fixing the
amount of such pecuniary loss, you
should take into consideration the age,
health, habits, occupation, expectation
of life, mental and physical disposition
of labor, the probable increase or dim-
inution of that ability with the lapse
of time and the deceased’s earning
power and rate of wages. From the
amount thus ascertained the personal
expenses of the deceased should be
deducted and the remainder reduced to.
its present value should be the amount
of contribution for which plaintiff is
entitled to recover, if your verdict
should be for the plaintiff.” Kansas,
etc., R. Co. v. Leslie, 238 U. S. 599, 59
L. Ed. 1478, 35 S. Ct. 844.
§ 181 FEDERAL EMPLOYERS’ LIABILITY ACT. 372

period of expectancy as ascertained by them, after deducting the cost of
living, etc., 3° or to charge that a recovery was permitted, not only for the
pecuniary loss sustained by the wife and children, but in case the net earn-
mgs of the deceased were in excess of this sum, that such excess was also
recoverable by the administrator of the deceased employee, 37 or to charge
that the damages should be assessed upon the basis of the loss to the estate
of the deceased.?8 However, a charge which after correctly stating the
measure of damages also says “you should include the value of the support
and protection,” is not erroneous as the word “protection” when taking the
charge as a whole would mean only pecuniary protection from want or
penury.®® And an instruction on the measure of damages which may have
been erroneous in included probable gifts or inheritance from the deceased,
will not be reversed where the evidence shows that the contributions of the
deceased to his family ‘were greatly in excess of the verdict rendered.‘
Where the trial court attempts to give an instruction on the measure of
damages its duty is to state it in correct.form. A failure to do so is prej-
udicial to the rights of a defendant; who having objected thereto is not
estopped by failing to submit a proper instruction to insist upon a reversal
of the judgment because of the error committed by the court.*}

§§ 181-185. Pecuniary Loss to Beneficiaries—§ 181. General
Determination.—A pecuniary loss or damage must be one which can be
measured by some pecuniary standard. It is a term employed judicially,
says the supreme court, ‘not only to express the character of that loss to the
beneficial plaintiffs which is the foundation of their right of recovery, but
also to discriminate between a material loss which is susceptible of a pecu-
niary valuation, and that inestimable loss of the society and companionship
of the deceased relative upon which, in the nature of things, it is not possi-
ble to set a pecuniary valuation.” 42 It is not dependent upon any legal lia-
bility of the injured person to the beneficiary. That is not the sole test.
There must, however, appear some reasonable expectation of pecuniary as-

sistance or support of which they have been deprived. 4? The pecuniary

36. Dooley v. Seaboard Air Line R.
Co., 163 N. C. 454, 79 S. E. 970.

37. Southern R. Co. v. Hill, 139 Ga.
549, 77 S. E. 803.

88. Farley v. New York, etc., R. Co.,
87 Conn. 328, 87 Atl. 990.

A verdict and resulting judgment
based upon an instruction that the jury
should find, if anything, “such a sum
as will fairly compensate his estate for
his death” will not be reinstated on
appeal after a reversal by the State

Supreme Court. rae etc, R.
Co. v. Stewart (U. S.), 36 Ct. 586.
39. Sweet v. Chicago, etc., e Co., 157

Wis. 400, 147 N. W. 1054.

40. Sweet v. Chicago, etc., R. Co., 157
Wis. 400, 147 N. W. 1054, under Wis-
consin Stat. 1913, § 3072m.

41. Duty of court to instruct—Es-
toppel of defendant by failure to sub-
mit instruction.—Chesapeake, etc, R.
Co. v. Dwyer, 157 Ky. 590, 163 S! Ww.
752.

42. Pecuniary loss defined.—Michi-
gan Cent. R. Co. v. Vreeland, 227 U.
S. 59, 57 L. Ed. 417, 33 S. Ct. 192, Ann.
Cas. 1914C, 176, quoting Patterson
Railway Accident Law, § 401.

43. Not dependent upon legal liabil-
ity to support—Michigan Cent. R. Co.
v. Vreeland, 227 U. S. 59, 57 L. Ed.
417, 33 S. Ct. 192, Ann. Cas. 1914C, 176;
American R. Co. v. Didricksen, 227 U.
S. 145, 57 L. Ed. 456, 33 S. Ct. 224; Cain
v. Southern R. Co. (C. C.), 199 Fed.
211, 212,
373 DAMAGES. § 181
loss of beneficiaries is not what the deceased might have earned but what
part of his earnings they might reasonably have expected to receive, and it
would be error to instruct the jury that they might find the damages to be
the net value of the earnings of the deceased after payment of his personal
expenses.*4 But by pecuniary aid, or support, is meant not only money, but
anything that can be valued in money.*®

On the other hand, damage for pecuniary loss or injury excludes all con-
sideration of punitive elements, such as recompense for grief, wounded feel-
ings of survivors, loss of society, affection, or companionship,*® neither are
the funeral expenses for the deceased to be included.47 It includes, there-

: fore, damages for the loss of the services of the husband, wife or child,**
and in the case of a widow and children substantial damage will be presumed
upon a showing of the pecuniary value of the life of the deceased to his
family+° But there must be evidence of the value of the deceased custom-
ary contributions, and proof of deceased’s age, life expectancy and earning
capacity, also that his wife and children are dependent upon him for sup-
port ; this is not sufficient to support the charge of pecuniary loss where there
was no: proof to indicate what the beneficiaries might reasonably have ex-
pected from him, and in such a case a recovery for nominal damages only
is warranted.5°

The fact that a husband and wife were separated does not preclude
the question of pecuniary loss to the widow and child! Though in
such a case it is held error to instruct 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, or they lived separate and
apart from him; and this duty could not be avoided by him by any voluntary
act on his part, and a wife and child have the right to recover damages for

44, Not measured by earnings, less
expenses.— Nashville, etc., Railway v.
Anderson (Tenn.), 185 S. W. 677, cit-
ing Kansas, etc., R. Co. v. Leslie, 238
U. S. 599, 59 L. Ed. 1478, 35 §S. Ct.
844.

45. Pecuniary aid or support not
limited to money.—St. Louis, etc., R.
Co. v. Geer (Tex. Civ. App.), 149 S.
W. 1178, writ of error denied in 154
S. W. xix, no op.

46. All consideration of punitive
elements excluded.—United States.—
Michigan Cent. R. Co. v. Vreeland, 227
U. S. 59, 57 L. Ed. 417, 33 S. Ct. 192,
Ann, Cas. 1914C, 176; American R. Co.
wv. Didricksen, 227 U. S. 145, 57 L. Ed.
456, 33 S. Ct. 224; Cain v. Southern R.
Co. (C. C.), 199 Fed. 211, 212; New
York; etc., R. Co. v. Niebel, 131 C. C.
A. 248, 214 Fed. 952; Garrett v. Louis-
ville, etc., R. Co. eo C.), 197 Fed. 715,
720, affirmed in 35 S. Ct. 32.

Iowa—McCoullough v. Chicago, etc.,

R. Co., 160 Iowa 524, 142 N. W. 67,
47 L. R.A, N.S, 23.

Texas.—St. Louis, etc, R. Co..v.
Geer (Tex. Civ. App.), 149 S. W. 1178,
writ of error denied in 154 S. W. xix,
no op.

47. Funeral charges.—Collins  v.
Pennsylvania R. Co., 163 App. Div.
452, 148 N. Y. 777.

48. Includes damages for loss of
services.—Michigan Cent. R. Co. vw.
Vreeland, 227 U. S. 59, 57 L. Ed. 417,
33 S. Ct. 192, Ann. Cas. 1914C, 176.

49, Presumption of loss to widow
and children.—McCoullough v. Chi-
cago, etc, R. Co., 160 Iowa 524, 142
N. W. 67, 47 L. R.A. N.S. 23:

50. Proof of contributions .—Nash-
ville, etc, Railway v. Anderson
(Tenn.), 185 S. W. 677.

51. Separation of husband and wife.
—Fogarty v. Northern Pac. R. Co., 85
Wash. 90, 147 Pac. 652. See, also, Mc-
Garvey v. McGarvey, 163 Ky. 242, 173
S. W. 765.
§ 181 FEDERAL EMPLOYERS’ LIABILITY ACT. 374

the death of the husband and father caused by the’negligence of another,
independent of whether he has contributed anything to their support,” in
that it fixes “legal duty” independent of pecuniary benefits as a measure by
which the jury should estimate the damages instead of the pecuniary bene-
fits which the wife and child might have reasonably received during the
lifetime of the deceased.*?

Where evidence was introduced showing the intestate’s age at death, his
previous condition of health, his habits, earning capacity, etc., together with
the expectancy of life of a man of his age, according to the American Ex-
perience Table of Mortality; a charge is not objectionable that “In deter-
mining what he [intestate] is worth to the family, you should consider his
actual earning power, and you should take into consideration his power
to earn for the length of time that he may be expected to live,” etc., as a
failure of the court to charge about the contingencies of illness and loss or
impairment during the period of life, and also the contingency of death
prior to the time limit of expectation. Because under this charge the jury
were to consider the intestate’s earning power during the term of life ex-
pectancy, which consideration involved the probabilities as to his health and
physical condition.53

The law does not contemplate the recovery of a sum the interest upon
which will afford the family an income equivalent to the pecuniary benefits
which they might expect from the deceased if he had continued to live, but
limits the recovery to a sum which would procure an annuity, equivalent to
such pecuniary benefits, for the period covered by the life expectancy of the
deceased. It must also be borne in mind, in determining the loss sustained,
that the portion of his earnings which the deceased, if living, would expend
upon himself for his own maintenance cannot be included therein.54

While there may be local conditions, or cases in which the expectancy of
pecuniary advantage is so short, and the aggregate amount so small that it
would be unreasonable to expect an investment, still as a rule, and in all
cases where it is reasonable to suppose that interest may safely be earned
upon the amount that is awarded, the ascertained future benefits ought to
be discounted in the making up of the award.55 So in computing the dam-

52. Fogarty v. Northern Pac. R. Chesapeake, etc, R. Co. v. Gainey (U.

Co., 74 Wash. 397, 133 Pac. 609.

53. Consideration of contingent ill-
ness and death of deceased.—White v.
Central Vermont R. Co., 87 Vt. 330,
89 Atl. 618, affirmed in 35 S. Ct. 865.

64, Interest on the award not to
equal amount of pecuniary loss.—Nash
v. Minneapolis, etc., R. Co., 131 Minn.
166, 154 N. W. 957.

55. Interest to be derived from
award to be considered.—Chesapeake,
etc., R. Co. v. Kelly (U. S.), 36 S. Ct.
630.

The case of Chesapeake, etc., R. Co.
v. Kelly (U. S.), 36 S. Ct. 630, and

S.), 36 S. Ct. 633, have reversed the
Kentucky cases of Chesapeake, etc.,
R. Co. v. Kelly, 160 Ky. 296, 169 S.
W. 736, and Chesapeake, etc., R. Co.
v. Dwyer, 162 Ky. 427, 172 S. W. 918.
Also the case of Chesapeake, etc., R.
Co. v. Kornhoff, 167 Ky. 353, 180 S.
W. 523, which followed the rulings in
these cases, must be considered un-
sound.

In Chesapeake, etc., R. Co. v. Kelly,
160 Ky. 296, 169 S.. W. 736, the court
had said: “There is no more reason
in appellant’s theory that the defend-
ants should have discounted the loss
375 DAMAGES. §§ 181-182

ages recoverable for the deprivation of future benefits, the principle of limit-
ing the recovery to compensation requires that adequate allowance be made,
according to circumstances, for the earning power of money; in short, that
in awarding a gross sum when future payments or other pecuniary benefits
are to be anticipated, the verdict should be made up on the basis of their
present value only, and the amount awarded should be such that if placed
at interest would be wholly consumed when the time of dependency ceased.**

While it may be a difficult mathematical computation for the ordinary
juryman to calculate interest on deferred payments, with annual rests, and
reach a present cash value; but whether the difficulty should be met by ad-
mitting the testimony of expert witnesses, or by receiving in evidence the
standard interest and annuity tables in which present values are worked out
at various rates of interest and for various periods covering the ordinary
expectancies of life, like other questions of procedure and evidence, it is to
be determined according to the law of the forum.” 57

The discount should not necessarily be at what is. commonly called the
“legal rate” of interest; that is, the rate limited by law, beyond which in-
terest is prohibited. It may be that such rates are not obtainable upon in-
vestments on safe securities, at least, without the exercise of financial ex-
perience and skill in the administration of the fund; and it is evident that the
compensation should be awarded upon a basis that does not call upon the
beneficiaries to exercise such skill, for where this is necessarily employed,
the interest return is in part earned by the investor rather than by the in-
vestment. This, however, is a matter that ordinarily may be adjusted by
scaling the rate of interest to be adopted in computing the present value of
the future benefits; it being a matter of common knowledge that, as a rule,
the best and safest investments, and those which require the least care,
yield only a moderate return.®®

§ 182. Surviving Wife.—In the case of a surviving wife, compensa-
tion will be allowed for the loss of support and maintenance, or whatever
financial benefit might reasonably have been expected from her husband had
he continued alive and uninjured.®® But as just stated no amount is to be

than there is that the railroad company dependent,-is more than ought to be

should be adjudged to pay a fixed sum
annually, semiannually, or monthly for
their support. The award of the jury
should be for the pecuniary loss suf-
fered. .While that loss is, in a meas-
ure, future support, the father’s death
precipitated it, so that it is all due,
and we are not impressed with the ar-
gument that the sum due should be
reduced by rebate or discount. The
value of a father’s support is not so
dificult to estimate, and the average
juryman is competent to compute it,
but to figure interest on deferred pay-
ments, with annual rests, and reach a
present cash value of such loss to each

asked of any one less qualified than
an actuary.”

56. Sum to be consumed at end of
period of dependency.—Chesapeake,
etc., R. Co. v. Kelly (U. S.), 36 S. Ct.
630, 632.

57. Method of determination—Lex
fori controls.—Chesapeake, etc., R. Co.
v. Kelly (U. S.), 36 S. Ct. 630, 632.

58. Rate of interest to control in de-
termination of award.—Chesapeake,
etc, R. Co. v. Kelly (U. S.), 36 S. Ct.
630, 632.

59. Compensation to surviving wife
for loss of support, maintenance, and
financial benefit—Michigan Cent. R.
§ 182

FEDERAL EMPLOYERS’ LIABILITY ACT.

376

allowed for the care and advice ®® or loss of companionship and ‘associa-

tion.§1

Thus where the court below instructed the jury that they could not

allow damages for the grief and sorrow of the widow, or as a “balm to her
feelings,” and that they were to confine themselves to a proper compensa-
tion for the loss of any pecuniary benefit which would reasonably have been
derived by her from the decedent's earnings. ‘The court then went further,
and instructed the jury that, ‘in addition to that, independent of what he
was receiving from the company, it is proper to consider the relation that
was sustained by Mr. Wisemiller and Mrs. Wisemiller, namely, the relation
of husband and wife, and draw upon your experiences as men, and measure,
as far as you can, what it would reasonably have been worth to Mrs. Wise-
miller in dollars and cents to have had, during their life together, had he

lived, the care and advice of Mr. Wisemiller, her husband.”

Co. v. Vreeland, 227 U. S. 59, 57 L.
Ed. 417, 33 S. Ct. 192, Ann. Cas. 1914C,
176; Nashville, etc., Railway v. Ander-
son (Tenn.), 185 S. W. 677.

If on the measure of damages it
were erroneous to charge that the
earning capacity of the deceased was
immaterial, it was not prejudicial er-
ror where the court further charged
that the question was how much did
he contribute to the support and main-
tenance of his wife and_ children.
Thornton v. Seaboard Air Line Rail-
way, 98 S. C. 348, 82 S. E. 433.

An instruction that the jury shall
find such an amount in damages as
will fairly and reasonably compensate
the widow of the deceased for the loss
of pecuniary benefits she might reason-
ably have received if the deceased had
not been killed, is not objectionable
as calculated to mislead the jury and
induce them to allow damages done to
the estate as well as the damages the
widow sustained individually. Louis-
ville, etc., R. Co. v. Holloway, 168 Ky.
262, 181 S. W. 1126.

60. “Care” and “advice” of deceased
husband not an element of recovery.
—Michigan Cent. R. Co. v. Vreeland,
227 U. S. 59, 57 L. Ed. 417, 33 S. Ct.
192, Ann. Cas. 1914C, 176.

61. Companionship and association.
—New York, etc., R. Co. v. Niebel, 131
C. C. A. 248, 214 Fed. 952.

“We find ourselves compelled to di-
rect a new trial because of the meas-
ure of damages given to the jury. The
parties beneficially interested were the
widow and two small children. The
case was tried before the decision of
the Supreme Court in Michigan Cent.
R. Co. v. Vreeland, 227 U. S. 59, 57
L. Ed. 417, 33 S. Ct. 192, Ann. Cas.
1914C, 176, and the charge, as given,
disregarded, at least as to the widow,
the distinctions pointed out between

The Federal

loss of support and maintenance and
loss of companionship and association.
We do not fail to observe that the
loss of companionship and association
was not put before the jury as an ele-
ment of damages additional to the loss
of support and maintenance quite as
distinctly as had been done by the
trial court in the Vreeland Case; but
when we see that the references to the
loss sustained by the widow’s depriva-
tion of her husband’s companionship
and association were repeated, that the
loss of home ties was referred to in a
way to indicate its pecuniary impor-
tance, that the jury was told that the
law attempts to be liberal and not
niggardly with the victims of such an
accident and was not told to distin-
guish support from companionship,
and when we see that the amount of
the verdict would, at the legal rate of
interest in Ohio, make a permanent
annuity reaching well towards the
amount which Niebel, out of his ex-
isting earnings, could have devoted to
the support of his wife and family as
distinguished from his own, we are
convinced that the error in the charge
on the subject of the widow’s loss of
association and companionship must
be treated as prejudicial.” New York,
etc, R. Co. vw. Niebel, 131 C. C. A.
248, 214 Fed. 952.

An instruction to the jury that they
should find what sum if paid now
would “fully compensate” the wife of
a brakeman for the pecuniary loss due
to his death is not objectionable as
permitting a recovery for mental an-
guish and grief for loss of his society,
the original charge having restricted
the damages recoverable to pecuniary
loss. Ft. Worth, etc, R. Co. wv. Stal-
cup (Tex. Civ. App.), 167 S. W. 279,
writ of error denied in 170 S. W. xviii,
no op.
377 DAMAGES. §§ 182-183
Supreme Court held that this threw the door open to the widest speculation,
leaving the jury no longer confined to a consideration of the financial bene-
fits which might reasonably have been expected from her husband in a
pecuniary way, and in reversing the judgment, in Michigan Cent. R. Co. v.
Vreeland, 227 U. S. 59, 57 L. Ed. 417, 33 S. Ct. 192, Ann. Cas. 1914C, 176,

the court said:

“Neither ‘care’ nor ‘advice,’ as used by the court below, can be regarded
as synonymous with ‘support’ and ‘maintenance,’ for the court said it
was a deprivation to be measured cover and above support and mainte-
mance. It is not beyond the bounds of supposition that by the death of
the intestate his widow may have been deprived of some actual custom-
ary service from him, capable of measurement by some pecuniary
standard, and that in some degree that service might include as ele-
ments ‘care and advice.’ But there was neither allegation nor evidence
of such loss of service, care, or advice; and yet, by the instruction given,
the jury were left to conjecture and speculation. They were told to
estimate the financial value of such ‘care and advice from their own
experiences as men.’ These experiences, which were to be the standard,
would, of course, be as various as their tastes, habits, and opinions.
It plainly left it open to the jury to consider the value of the widow’s
loss of the society and companionship of her husband. In this part of
the charge the court erred.”

The damages to a wife should be based upon her expectancy as well as
that of deceased and should be limited to the length of the life which was
shortest.6?

§ 183. Children.—When the beneficiary is a minor child, though enti-
tled to recover such an amount as the deceased would reasonably be ex-
pected under all the facts and circumstances in the case to have contributed
towards the maintenance and education of such children,®? the loss sustained
is peculiarly its own, differing from other beneficiaries, and a recovery may
be had for the loss of that care, counsel, training, and education which it
might, under the evidence, have reasonably received from the parent, and
which can only be supplied by the service of another for compensation.®

62. Length of time expectation may
continue —Nashville, etc., Railway v.
Anderson (Tenn.), 185 S. W. 677.

638. Beneficiary minor child—Kan-
sas, etc., R. Co. v. Roe (Okla.), 150
Pac. 1035; Nashville, etc., Railway 7.
Anderson (Tenn.), 185 S. W. 677.

So it is error to charge that the-

amount of recovery must of necessity
be left to the good sense and sound
judgment of the jury upon a consider-
ation of the facts and circumstances of
the case tending to show the pecuniary
value of the life of the deceased when
it is followed by a paragraph stating
that in assessing damages the jury
should do so dispassionately, acting
neither miserly or extravagantly, but

allowing such an amount as in their
own good judgment tells them would
provide the means of caring for, edu-
cating and properly training the chil-

dren. Kansas, etc, R. Co. v. Roe
(Okla.), 150 Pac. 1035.
64. Same—Loss of counsel, care,

training, etc—United States—Michigan
Cent. R. Co. uv. Vreeland, 227 U. S.
59, 57 L. Ed. 417, 33 S. Ct. 199,
Ann. Cas. 1914C, 176; Cain v. South-
ern R. Co. (C. C.), 199 Fed. 211; Duke
v. St. Louis, etc., R. Co. (C. C.), 172
Fed. 684; S. C., 112 C. C. A. 564, 192
Fed. 306; Norfolk, etc.,, R. Co. v. Hol-
brook, 235 U. S. 625, 59 L. Ed. 392, 35
S. Ct. 143.

Arkansas —St. Louis, etc., R. Co. v.
§ 183

FEDERAL EMPLOYERS LIABILITY ACT.

378

In Norfolk, etc., R. Co. v. Holbrook, 235 U. S. 625, 59 L. Ed. 392, 35 S. Ct.

143, the court said:

' “In the present case there was testimony concerning the personal qualities

of the deceased and the interest which he took in his family.

It was

proper, therefore, to charge that the jury might take into consideration
the care, attention, instruction, training, advice and guidance which the
evidence showed he reasonably might have been expected to give his
children during their minority, and to include the pecuniary value

thereof in the damages assessed.”

This shows that the court had no intention to change the rule previously
laid down, that the loss of a parent by a minor child, was distinct from the
loss by other beneficiaries,®® but it is recognized and affirmed to the extent
that “The elements which make up the total damage resulting to a minor
child from a parent’s death may be materially different from those demand-
ing examination where the beneficiary is a spouse or collateral dependent

relative.” °¢

Rodgers, 118 Ark. 263, 176 S. W. 696.

Texas —St. Louis, etc, R. Co. wv.
Geer (Tex. Civ. App.), 149 S. W. 1178,
writ of error denied in 154 S. W. xix,
no op.

“The appellant complains because
the court permitted the jury to con-
sider, as one of the elements of dam-
age, ‘the care and attention, instruc-
tion, and training, if any, one of Rodg-
ers’ disposition and capacity, as shown
by the evidence, might reasonably be
expected to give his wife and children,
which was lost to them by his death.’
The instruction was correct so far as
it applied to the infant child of the
deceased. See Norfolk, etc., R. Co. v.
Holbrook, 235 U. S. 625, 59 L. Ed.
392, 35 S. Ct. 143; Michigan Cent. R.
Co. v. Vreeland, 227 U. S. 59, 57 L.
Ed. 417, 33 S. Ct. 192, Ann. Cas. 1914C,
176; Railway Co. v. Sweet, 60 Ark. 550,
31 S. W. 571; Kansas, etc., R. Co. wv.
Leslie, 112 Ark. 305, 167 S. W. 83,
Ann. Cas. 1915B, 834.” St. Louis, etc.,
R. Co. v. Rodgers, 118 Ark. 263, 176
S. W. 696.

“On the measure of damages, the
circuit court told the jury that they
might take into consideration, among
other things, ‘the care, attention, in-
struction and training which one of
his’ (decedent’s) ‘disposition and char-
acter as disclosed by the evidence
might reasonably be expected to give
his children during their minority.’
Defendant’s counsel excepted to this,
and affirmatively requested the court
to declare the law to be that neither
the care, attention, instruction, nor
training which the father might rea-
sonably be expected to give to the
children could be considered by the

But the case holds that the courts in charging thereon should

jury in estimating the loss they sus-
tained by reason of his death. The
rule is that compensatory damages
only can be awarded in such cases as
this. The actual pecuniary loss result-
ing to the widow and children occa-
sioned by the death of the father is
all that can be allowed. This was em-
phasized by the trial court by repeti-
tion. He not only so advised the jury
affirmatively, but he told them that
‘neither sympathy, nor bereavement,
nor affection, nor love, nor devotion
which might have existed between the
husband and wife and children can be
rightly considered as an element of
damage in a case of this kind. The
pecuniary loss sustained the law per-
mits compensation for, but not for sor-
row, loss of companionship, or soci-
ety.’ Pretermitting, therefore, any
mere sentimental considerations con-
nected with parental care, instruction
or training, is it true they are of no
actual value in money to the children?
We think not. The attention of a fa-
ther in many cases may obviously save
the employment of nurse, governess,
teacher, or other caretaker. It was
for the jury to say in the light of all
the evidence concerning the character,
devotion, and usefulness of the de-
ceased to his children what would have
been his pecuniary value to them in
the respects under consideration if he
had lived.” St. Louis, etc., R. Co. v.
Duke, 112 C. C. A. 564, 192 Fed. 306.

685. Michigan Cent. R. Co. v. Vree-
land, 227 U. S. 59, 57 L. Ed. 417, 33
S. Ct. 192, Ann. Cas. 1914C, 176.

66. Norfolk, etc.. R. Co. v. Holbrook,
235 U. S. 625, 59 L. Ed. 392, 35 S. Ct.
143.
379 DAMAGES. § 183

be limited by the evidence, and that it was not proper to compare the injury
of a dependent widow and infant children to adult beneficiaries or depend-
ent next of kin, when as said the court in Norfolk, etc., R. Co. v. Holbrook,
23> U.S. 625, 59 L,, Hd, 392, 35 S.Ct. 143:

“There was nothing—indeed there could be nothing—[because the exist-
ence of these beneficiaries excluded the others] to show the hypothetic
injury which might have befallen some unidentified adult beneficiary
or dependent next of kin. The ascertained circumstances must govern
in every case. There was no occasion to compare the rights of the ac-
tual beneficiaries with those of supposed dependents; and we think the
trial court plainly erred when it declared that where the persons suffer-
ing 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 a consideration of elements wholly ir-
relevant to the true problem presented—to indulge in conjecture instead
of weighing established facts. * * * The facts brought out during
the course of the trial were adequate to constitute a strong appeal to
the sympathy naturally engendered in the minds of jurors by the mis-
fortunes of a widow and her dependent children. In such circumstances
it was especially important that the charge should be free from any-
thing 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 pro-
tect the parties from unjust verdicts arising from impulse, passion or
prejudice, or from any other violation of lawful rights.”

The duty of the mother of minor children being that of nurture, and of
intellectual, moral, and physical training, such as when obtained from others
must be for financial compensation, it has been held that the deprivation
thereof is such a loss as admits of definite pecuniary valuation, provided
there be evidence of the fitness of the parent and that the child has been
actually deprived thereof.67 And it has been intimated that in such a case
an instruction authorizing recovery for the loss of a mother’s “care and
advice” would not.be erroneous.®8

There can be no recovery for a daughter of age,®® or a married daughter
in no ways dependent upon the decedent.7° But a charge which permits
the jury in determining the amount of recovery to the dependent wife and
children, is not prejudicially erroneous in that it embraces the right of a
married daughter to reasonably expect assistance of her father in case of
need or sickness and the probability of his granting it, where there is no
evidence of such contribution and the charge as a whole limits the recovery

67. Same—Loss of mother’s care.— 69. Adult children.—St. Louis, ete.,
Michigan Cent. R. Co. v. Vreeland, 227 R. Co. v. Rodgers, 118 Ark. 263, 176
U. S. 59, 57 L. Ed. 417, 33-S. Ct. 192, S. W. 696.

Ann. Cas. 1914C, 176. 70. Married children.—Gulf, etc., R.

68. Michigan Cent. R. Co. v. Vree- Co. v. McGinnis, 228 U. S$. 173, 57
land, 227 U. S. 59, 57 L. Ed. 417, 33S. L. Ed. 785, 33 S. Ct. 426.

Ct. 192, Ann. Cas. 1914C, 176.
§§ 183-184 380

FEDERAL EMPLOYERS’ LIABILITY ACT.

to the dependent wife and children.71

Where the court repeatedly charged the jury that the recovery could be
only for the wife and children dependent upon him, to the amount only that
he contributed to them, it was not prejudicial error to modify a requested
charge that the jury should consider the probability of contributions from
the deceased ceasing upon the children becoming of age, or marrying or even
before that time, by an additional charge that even after becoming of age, or
marriage, though a father would not be legally liable for support and main-
tenance, yet if they should be sick and helpless they could expect support
from their parents.72

§ 184. Surviving Parents.—Where the action is brought for the bene-
fit of the surviving parents, there must be proof of a reasonable expectation
of pecuniary assistance or support from the deceased.7? In the nature of
the case, evidence cannot be very definite as to the amount of the pecuniary
loss sustained in such a case, but it does devolve upon the plaintiff to show
those general facts which are necessarily within the general knowledge of the
beneficiaries and which bear upon the financial resources and prospects of
themselves, as well as those of the decedent.74 Thus in a case where the
father and mother were both witnesses, but the father did not testify to any
fact showing a pecuniary loss, and the mother only testified that the son
contributed to the family expenses when he was working, that he boarded
and roomed with them, for which he paid and in that way contributed, and
in other ways, too, but what other ways were not mentioned, this is insuffi-
cient to sustain a verdict for $5,000, in their favor.7® Other cases are set out
in the notes, showing when the evidence is sufficient to sustain a recovery,’®

71. Same—Instruction not necessa- Co., 160 Iowa 524, 142 N. W. 67, 47
rily erroneous.—Thornton v. Seaboard L. A., N.S, 23.

Air Line Railway, 98 S. C. 348, 82 S.
E. 433.

72. Thornton v. Seaboard Air Line
Railway, 98 S. C. 348, 82 S. E. 433.

73. When parents beneficiaries. —
United States—American R. Co. vt.
Didricksen, 227 U. S. 145,°57 L. Ed.
456, 33 S. Ct. 224; Michigan Cent. R.
Co. v. Vreeland, 227 U. S. 59, 57 L.
Ed. 417, 33 S. Ct. 192, Ann. Cas. 1914C,
176; Moffett v. Baltimore, etc., R. Co.,
135 C. C. A. 607, 220 Fed. 39.

_North Carolina—Raines v. Southern
R. Co. 169 N. C. 189, 85 S. E. 294;
Dooley v. Seaboard Air Line R. Co.,
163 N. C. 454, 79 S. E. 970.

Tennessee.—Carolina, etc., Railway v.
Shewalter, 128 Tenn. 363, 161 S. W.
1136, Ann. Cas. 1915C, 605.

74, Sufficiency of evidence of pecun-
iary loss—McCoullough v. Chicago,
etc., R. Co., 160 Iowa 524, 142 N. W.
67, 47 TL, R. Ay Ne Sa 28.

75. McCoullough wv. Chicago, etc., R.

76. “In this case it appears that the
intestate was a boy of good health,
earning $1.10 per day, and was con-
tributing regularly to the support of
his father. He was sober, industrious,
and of average intelligence for his age.
His conduct towards his parent tended
to show that he was, in mind and dis-
position, imbued with a proper con-
ception of his filial duty and enter-
tained the proper affection for his fa-
ther. The evidence in this case of a
reasonable expectation by the father
of benefit or pecuniary aid or other
advantage of gift or inheritance, if the
life of his son had been spared to him,
was sufficient for submission to the
jury.” Raines v. Southern R, Co., 169
N. C. 189, 85 S. E. 294.

“The deceased was, according to the
evidence, strong, healthy, intelligent,
and industrious, and he was a young
man of good habits and good charac-
ter. He had helped the father and was
381

and when it is considered insufficient.77

DAMAGES.

§ 184

‘The existence of the relation does not create a presumption of pecuniary

loss by the death of the child.7§

In McCoullough wv. Chicago, etc., R. Co.,

160 Iowa 524, 142 N. W. 67, 47 L. R. A., N. S., 23, the court said:

“Tn those states, where similar statutes have been in force, it has been

quite uniformly held that substantial damages will be presumed in favor
of the widow and children without special averment or proof other than
a showing of the pecuniary value of the life of the decedent to his
family; and doubtless to his own estate, on the theory that a prospective
inheritance of such estate by the family would ordinarily be a reason-
able expectation. It has also been quite. usually held that as to other
classes of beneficiaries it is necessary to aver and prove their pecuniary
loss by appropriate allegation and evidence. If the action be brought
on behalf of the parents, it is not enough to show their mere survival.
Pecuniary loss.must be shown. From the nature of the case the evi-
dence must often be circumstantial only and perhaps indefinite, but the
aim of the statute to that end is definite and persistent.”

It.is not necessary to show that the parents were dependent upon the

deceased child, as in cases of dependent next of kin.7* Thus where there
was evidence tending to show that the relationship between the plaintiff and
the deceased was affectionate, and that the latter had contributed to the
support of the former, this is held sufficient to support a verdict awarding

so disposed to him that he would give
him his last cent if the father needed
it, and the father was growing old,
and, while not actually dependent on
the son for support at the time of
death, he did not know how soon he
might be. This furnishes sufficient
evidence to sustain a finding that the
father had a reasonable expectation of
pecuniary benefit from the continu-
ance of the life of the son, and the
motion for judgment of nonsuit was
therefore properly denied.” Dooley v.
Seaboard Air Line R. Co., 163 N. C.
454, 79 S. E. 970.

77. “The deceased, Robert Shewal-
alter, was an adult about 25 years of
age. He did not live with his father
at the time of his death, nor did he
contribute anything to the support of
his father, so far as the record shows.
An effort was made by counsel for the
railroad company below to ascertain
from a brother of deceased while on
the stand what contributions deceased
had made to his father’s support, with
a view of putting this in evidence to
mitigate the recovery. Objection,
however, was taken to this evidence
by counsel for plaintiff below, and it
was excluded. So there is no evidence
in the record that the father of de-
ceased had been in the habit of re-
ceiving pecuniary assistance or sup-

port from deceased. The deceased
was, of course, under no legal liability
to the beneficiary, and the beneficiary
has wholly failed to show that he has
lost any prospective pecuniary benefit
by reason of the death of his son.”
Carolina, etc., Railway v. Shewalter,
128 Tenn. 263, 161 S. W. 1136, Ann.
Cas. 1915C, 605.

Plaintiff's intestate was a common
laborer, 23 years old when killed. He
had remained with and assisted his
parents until a few months previous to
his death. Out of his first month’s
wages he sent $10 to his father because
of the latter's need. The parents
worked on a farm but did not own it.
In this action under the Federal Em-
ployers’ Liability Act it is held, that
there was not such a failure of proof
of pecuniary loss to the parents that
defendant was entitled to either judg-
ment notwithstanding the $2,000 ver-
dict, or a new trial. Lundeen v. Great
Northern R. Co., 128 Minn. 332, 150
N. W. 1088.

78. No presumption of damage.—
McCoullough 7. Chicago, etc., R. Co.,

160 Iowa 524, 142 N. W. 67, 47 L. R.
A,, N. S., 238.
79. Dependency not  necessary.—

McCoullough v7. Chicago, etc. R. Co.,
160 Towa 524, 142 N. W. 67, 47 L. R.
A, N.S, 23.
§ 184 FEDERAL EMPLOYERS’ LIABILITY ACT. 382

more than nominal damages.8° Nor is it necessary to establish that the
intestate would have continued to contribute to the support of his father
after he arrived at the age of 21 years, and, further, the amount of such
contribution as he would have made after his maturity. This could hardly
be the rule intended by congress, as such facts would be incapable of any-
thing like accurate or even approximate proof. They depend so much upon
contingencies as to be beyond the human ken. What a man will do with
his estate in the future, cannot be foretold, and therefore congress, aware
of this difficulty in making proof, required that the amount of recovery
should be measured by the reasonable expectation of benefit which would
accrue to the parent, or a dependent, by the continuance of the life in ques-
tion.81 An instruction that the amount of compensation, if any to be
awarded for the father and mother, “is the present worth of the amount
which it is reasonably probable the deceased would have contributed to the
support of his parents during the whole expectancy of life in proportion to
the amount he was contributing, if any, at the time of his death, not exceed-
ing his expectancy of life,” is proper; and is not objectionable as meaning
to say that plaintiff was entitled to recover an amount equal to intestate’s
probable contribution to the support of his parents during the whole time
of his expectancy.®?

The loss of prospective gifts and contributions is properly a pecuniary
loss, but generally speaking, the measure of such loss is held to be the pres-
ent worth of such gifts as the parents could reasonably have expected to
receive from their adult child in the course of their lives.8%

The loss of the society or companionship of a son is a deprivation not
to be measured by any money standard. It is not a pecuniary loss under
such a statute as this.§ And the court goes beyond this limitation by

80. Saunders v. Southern R. Co., 167 83.
N. C. 375, 83 S. E. 573; Irvin v. South-
ern R. Co., 164 N. C. 5, 80 S. E. 78;
Dooley v. Seaboard Air Line R. Co.,

Loss of prospective gifts and
contributions—McCoullough v. Chi-
cago, etc. R. Co. 160 Iowa 524, 142
N. W. 67, 47 L. R. A., N. S., 23. See,

163 N. C. 454, 79 S. E. 970, cited and
approved.

81. Expectation after decedent
teaches majority.—Raines v. Southern
R. Co., 169 N. C. 189, 85 S. E. 294.

82. Louisville, etc., R. Co. v. Flem-
ing (Ala.), 69 So. 125, 128.

“But for the substitution of the word
‘whole’ for ‘latter’s,’ this statement of
the law follows literally the text of §
168 of Tiffany’s Death by Wrongful
Act. The insertion of ‘whole’ is of
no logical consequence. Otherwise
emended to bring about complete con-
cord with Tiffany’s text, the charge
has the approval of McCoullough v.
Chicago, etc., R. Co., 160 Iowa 524,
142 N. W. 67, 47 L. R. A, N. S., 23.”
Louisville, etc. R. Co. uv. Fleming
(Ala.), 69 So. 125, 128.

also, Sweet v. Chicago, etc., R. Co,
157 Wis. 400, 147 N. W. 1054.

84. Relation of parent and child—
Loss of society and companionship.—
American R. Co. v. Didricksen, 227 U.
S. 145, 57 L. Ed. 456, 33 S. Ct. 224;
Dooley v. Seaboard Air Line R. Co.,
163 N. C. 454, 79 S. E. 970.

“The damages recoverable are lim-
ited to such loss as results to them
because they have been deprived of a
reasonable expectation of pecuniary
benefits by the wrongful death of the
injured employee. The damage is lim-
ited strictly to the financial loss thus
sustained. The court below went be-
yond this limitation by charging the
jury that they might, in estimating the
damages, ‘take into consideration the
fact that they are the father and
383 DAMAGES. §§ 184-185

charging a jury that they might, in estimating the damages, “take into con-
sideration the fact that they are the father and mother of deceased, and
the fact that they are deprived of his society and any care and consideration
he might take of them or have for them during his life.” Because even
laying out of consideration the indefiniteness of the term “care and con-
sideration,” as elements in addition to the loss and damage of such pecuniary
assistance as the parents of the decedent might have reasonably anticipated
from their son, there was no allegation of any such loss, nor any evi-
dence relating to the subject, or from which its pecuniary value might have
been estimated.85

§ 185. Next of Kin.—In the case of the next of kin it is necessary to
show that they were actually or partially dependent upon the deceased.%¢
And the evidence that the deceased employee contributed to the support
of his sister and her daughter, is sufficient to base a recovery of damages
in some amount for their benefit, independent of the sister’s testimony that
she expected support or that she heard him say he expected to give such
financial support.8? But evidence is not sufficient in this respect where the
only possible dependents are sisters and brothers; and one of the brothers
was administrator and testified that one of the sisters was married and liv-
ing with her husband in Ireland; the other a sister of charity residing in a.
convent in Virginia and devoting her time and services to the Catholic
Church and its benevolences. The sister of charity was supported by her
church, and that she did not ask for or receive assistance from the decedent.
Decedent had sometimes sent money to the married sister in Ireland, which
he had on more than one occasion borrowed of him for that purpose, but
did not say that the money borrowed of him was in fact sent the sister, or
that she was dependent upon the decedent. Whether the money the latter
sent her was in payment of a debt or for her support he did not know, or,
at any rate, did not say; nor did he undertake to state that the husband of
the sister in Ireland was unable to support his wife and children. The
death of the sister in Ireland occurred since that of the decedent, and the
names of her surviving children do not even appear in the record. And
there was no attempt on the part of administrator to show that he or the
other brothers of the decedent were in any way dependent upon him.88 And
on the trial evidence which shows that the wages of a decedent were hardly

mother of deceased, and the fact that
they are deprived of his society and
any care and consideration he might
take of them or have for them during
his life’ [5 Porto Rico Fed. Rep.
408.]” American R. Co. v. Didrick-
sen, 227 U. S. 145, 57 L. Ed. 456, 33
S. Ct. 224.

85. Erroneous instruction authoriz-
ing recovery.—American R. Co. vw.
Didricksen, 227 U. S. 145, 57 L. Ed.
456, 33 S. Ct. 224.

86. Actions by next of kin.—TIllinois
Cent. R. Co. v. Doherty, 153 Ky. 363,
155 S. W. 1119, 47 L. R. A, N.S., 31.

As to meaning of dependents, see
ante, “Beneficiaries Under Act,” Chap.
XIV.

87. Bruckshaw wv. Chicago, etc., R.
Co. (Iowa), 155 N. W. 273.

88. Illinois Cent. R. Co. v. Doherty,
153 Ky. 363, 155 S. W. 1119, 47 L. R.
A, N. S., 31.
§§ 185-186 FEDERAL EMPLOYERS’ LIABILITY ACT. 384

sufficient for his own maintenance, would tend to indicate that the next of
kin were not dependent upon him.®®

§ 186. Apportionment of Damages Among Beneficiaries.—In
Gulf, etc., R. Co. v. McGinnis, 228 U. S. 173, 57 L. Ed. 785, 33 S. Ct. 426,
the court said:

“Though the judgment may be for a gross amount, the interest of each
beneficiary must be measured by his or her individual pecuniary loss.
That apportionment is for the jury to return. This will, of course, ex-
clude any recovery in behalf of such as show no pecuniary loss.”

This has been taken to mean that an apportionment among the beneficiaries
was a requirement of a valid verdict,® but not sufficiently prejudicial to
any rights of the parties as to require a reversal, ® especially where there
was no request for an apportionment or objection to the verdict in solido.%?

However, the United States Supreme Court subsequently held that a
verdict in solido was not objectionable, when all the parties to the action
‘are entitled to a recovery, and the prior statement must be read in the light
of the record then before the court. It showed that one of those named as
a beneficiary was a married daughter of the deceased, living with her hus-
band, and supported by him. The jury actually apportioned the damages,
so the question as to the validity of a verdict in solido was not raised by the
record. The quoted language is part of its holding, that it was error to re-
fuse to charge that the married daughter was not a dependent of her de-
ceased father. But there was nothing in that record which would support
a ruling that a general verdict was invalid, or that the verdict could be set
aside because it failed to fix the amount each beneficiary was to receive. %
In Central Vermont R. Co. v. White, 238 U. S. 507, 59 L. Ed. 1433, 35 S.
Ct. 865, the court said:

89. Collins v. Pennsylvania R. Co.,
163 App. Div. 452, 148 N.Y. S. 777,
781.

90. Apportionment of damage
among beneficiaries—Requiring jury
to return.—Kentucky— Louisville, etc.,
R. Co. v. Stewart, 156 Ky. 550, 161 S.
W. 557.

MissouriHardwick v. Wabash R.
Co., 181 Mo. App. 156, 168 S.- W. 328.

New York.—Collins v. Pennsylvania
R. Co., 163 App. Div. 452, 148 N. Y.
Se 07%.

Texas —St. Louis, etc, R. Co. v.
Geer (Tex. Civ. App.), 149 S. W. 1178,
writ of error denied in 154 S. W. xix,
no op.

Washington—Fogarty w. Northern
Pac. R. Co., 74 Wash. 397, 133 Pac.
€09.

91. St. Louis, etc., R. Co. v. Rodgers,
118 Ark. 263, 176 S. W. 696; Anest v.
Columbia, etc., R. Co. (Wash.), 154
Pac. 1100.

92. Waiver by failure to object—
United States—Copper River, etc., R.
Co. uv. Reed, 128 C. C. A. 39, 211 Fed.
111; Southern R. Co. uv. Smith, 123 C.
C. A. 488, 205 Fed. 360. .

Kentucky—Chesapeake, etc. R. Co.
v. Dwyer, 157 Ky. 590, 163 S. W. 752.

Missouri—Hardwick v. Wabash R.
Co., 181 Mo. App. 156, 168 S. W. 328.

Montana. — Doichinoff v. Chicago,
etc., R. Co. (Mont.), 154 Pac. 924.

93. Apportionment of verdict not
necessary. — United ‘States. — Central
Vermont R. Co. v. White, 238 U. S.
507, 59 L. Ed. 1433, 35 S. Ct. 865.

Kentucky.—Cincinnati, etc., R. Co. v.
Claybourne, 169 Ky. 315, 183 S. W.
903.

Nebraska.—Hadley «. Union Pac. R.
Co. (Neb.), 156 N. W. 765. 5

Oklahoma—St. Louis, etc., R. Co. v.
Clampitt (Okla.), 154 Pac. 40.

Washington. — Anest -v. Columbia,
etc, R. Co. (Wash.), 154 Pac. 1100.
385 DAMAGES. § 186

“Under Lord Campbell’s act (9 & 10 Vict. chap. 93, § 2) and in a few of
the American states the jury is required to apportion the damages in
this class of cases. But even in those states the distribution is held to
be of no concern to the defendant, and the failure to apportion the
damages is held not to be reversible error (Norfolk, etc., R. Co. wv.
Stevens, 97 Va. 631, 34 S. E. 525, 46 L. R. A. 3673 International, etc.,
R. Co. v. Lehman (Tex. Civ. App.), 72 S. W. 619, affirmed in 97 Tex.
637, no op.),—certainly not unless the defendant can show that it has
been injured by such failure. The Employers’ Liability Act is substan-
tially like Lord Campbell’s act, except that it omits the requirement that
the jury should apportion the damages. That omission clearly indicates
an intention on the part of congress to change what was the English
practice so as to make the federal statute conform to what was the rule
in most of the states in which it was to operate. Those statutes, when
silent on the subject, have generally been construed not to require te
to make an apportionment. Indeed, to make them do so would,
many cases, double the issues; for, in connection with the a eae
tion of negligence and damage, it would be necessary also to enter upon
an investigation of the domestic affairs of the deceased,—a matter for
probate courts, and not for jurors. If, as in the McGinnis Case, the
plaintiff sues for the benefit of one who is not entitled to share in the
recovery (Taylor v. Taylor, 232 U. S. 363, 58 L. Ed. 638, 34 S. Ct. 350,
6N.C. C. A. 436; North Carolina R. Co. v. Zachary, 232 U. S. 248, 58
L. Ed. 591, 34S. Ct. 305, Ann. Cas. 1914C, 159), and if her inclusion in
the suit might increase the amount of the recovery,—the defendant may
raise the question in such mode as may be appropriate under the practice
of the court in which the trial is had, so as to secure a ruling which will
prevent -a recovery for one not entitled to share in the benefits of the
federal act. But no such question was or could have been raised in the
present case, since, as matter of law, the wife and minor children were
all to be treated as entitled to share in the amount recovered for the
death of the husband and father. 35 Stat. at L. 65, chap. 149, Comp.
Stat. 1913, § 8657.”

But should the jury by direction of the court make an apportionment among
the beneficiaries, it is not error of which a defendant can complain; as there
is nothing in the act prohibiting its being done.®4

Where the administrator of the decedent’s estate settled with the railroad
company, in a suit by a minor son to recover his share therein, it is held that
the amount should be divided between him and the widow in the proportion
that the years before he came of age, were to the years of the widow’s ex-
pectancy of pecuniary assistance.?®

In an action for the death of an employee where damages for pain and
suffering of the deceased, as well as a recovery for pecuniary loss, are
claimed, the jury cannot be required to apportion the award of damages, so
as to show what sum they found on the cause of action for deceased’s pain
and suffering and the cause of action in favor of the deceased’s widow and

94. See Chesapeake, etc, R. Co. w. 95. Apportionment by court on set-
Kelly (U. S.), 36 S. Ct. 630. tlement—McGarvey v. McGarvey, 163
Ky. 242, 173 S. W. 765.

Fed Act—25
§§ 186-187 FEDERAL EMPLOYERS’ LIABILITY ACT. 386

next of kin for their pecuniary loss.9* In Kansas, etc., R. Co. v. Leslie, 238
U.S. 599, 59 L. Ed. 1478, 35 S. Ct. 844, 845, the court said:

“Tt is further objected that as the declaration set up two distinct and in-
dependent liabilities springing from one wrong, but based upon differ-
ent principles, the jury should have been directed to specify in their
verdict the amount awarded, if any, in respect of each. This objec-
tion must be overruled. Of course, in causes arising under this statute
trial courts should point out applicable principles with painstaking care
and diligently exercise their full powers to prevent unjust results; but
its language does not expressly require the jury to report what was
assessed by them on account of each distinct liability, and in view of
the prevailing contrary practice in similar proceedings we cannot say
that a provision to that effect is necessarily implied. As the challenged
verdict seems in harmony with local practice and has been approved by
the courts below, the judgment thereon is not open to attack here upon
the ground specified.”

§ 187. Right of Administrator to Commission on Recovery.—
Where a firm of attorneys was employed by the administrator of a de-
ceased employee of a railway company, which, together with the employee,
was engaged in interstate commerce at the time of the homicide, to recover
damages for the negligent killing of such employee, and a recovery was had
in favor of the administrator, who sued for the father of the deceased em-
ployee as the sole beneficiary entitled to recover under the federal act, and
the money so recovered was paid by the attorneys of record to the father,
the sole beneficiary, the administrator could not subsequently maintain a
rule against the attorneys of record for the purpose of recovering the money
in order that he might get commissions as administrator out of the fund so
recovered and turn the remainder of the money back to the beneficiary. In
such a case, the administrator is not entitled to commissions out of the fund
so collected.97 In Allen v. Napier, 144 Ga. 38, 85 S. E. 1013, the court said:

“Tf the recovery is for the benefit of the next of kin under the statute,
then it is not an asset of the decedent’s estate for distribution, or for
the paying of debts, but is to be paid directly to such next of kin enti-
tled thereto under the statute; and, if this be true, the permanent ad-
ministrator of the decedent’s estate is not entitled to recover from those
who have paid the fund to the one who is entitled to it. It is true he
was a nominal party to the suit, but it was for the purpose of recover-
ing for the sole beneficiary, who has now received that to which the
law says he is entitled, and not for the estate he represents. If the
personal representative brings the suit under the federal statute, it
would not be on behalf of the estate he represents, but for the exclusive
benefit of him who was the sole beneficiary, and who was entitled to
recover for the tortious killing and for the loss which resulted to him

96. Apportionment for pain and suf- etc. R. Co. v. Rodgers, 118 Ark. 263,
fering, and pecuniary loss.—Kansas, 176 S. W. 696.
etc.. R. Co. v. Leslie, 238 U. S. 599, ‘97. Right of administrator to com-
59 L. Ed. 1478, 35 S. Ct. 844; St. Louis, mission on recovery.—Allen v. Napier,
144 Ga. 38, 85 S. E. 1013.
387 DAMAGES. §§ 187-188
thereby. * * * In the case at bar the real beneficiary has been
paid the money to which he was entitled; and, even if the administra-
tor as the nominal party plaintiff was technically entitled to have the
money pass through his hands and be by him paid to the beneficiary,
yet the law will not require an unnecessary thing to be done; and, the
beneficiary having received that which was due him from the proceeds
of the suit, the attorneys who collected the money and paid it over will
not, at the instance of the nominal party who has no interest in the
proceeds of the suit, be made to answer to him for it. That has been
done which ought to have been done, and there the matter should rest.”

§ 188. Apportionment or Diminution of Damages in Case of Con-
tributory Negligence.—Under the federal act, the jury, in estimating
damages, are required to take into consideration any contributory negli-
gence of the person injured, 98 but not to defeat a recovery.9® And it is
not error to refuse an instruction, which ignoring the negligence of the de-
fendant, makes the act of the plaintiff, in riding on the pilot of an engine with
knowledge of apparent and obvious danger, and without necessity, guilty of
contributory negligence, requiring the reduction of his damages to a nominal
sum.

The language of the act requiring apportionment is not in itself a suffi-
cient instruction? but may not be error.2 In St. Louis, etc, R. Co. v.
Brown (U. S.), 36 S. Ct. 602, 604, the court said:

“The instruction given is almost in the identical language of the statute,
and while definition might have further conduced to an appreciation by
the jury of the standard established by the statute, we think there was
‘no error in the charge given, especially as the railroad company made
no request for a charge clarifying any obscurity on the subject which it
deemed existed. It is true the company made a request on the subject
which the court declined to give, but that request, we are of opinion,
taken as a whole, instead of clarifying any ambiguity deemed to exist
in the instruction which the court gave would have served to ob-
scure it.”

However, where the court in charging on the diminution of damages for
contributory negligence read that portion of the statute and further charged
that they were to abate the amount found which represented the decedent's
proportionate contributory negligence and the verdict would be the differ-
ence, it is not error to have refused a charge substantially to the same ef-
fect. But when there is no instruction given as to the measure of dam-

98. Apportionment or diminution of
damages in case of contributory neg-
ligence.—Cain v. Southern R. Co. (C.
C.), 199 Fed. 211, 212. See ante, “Con-
tributory Negligence,”

99. Cincinnati, etc., R. Co. v. Gross
(Ind. App.), 111 N. E. 653; Arizona,
etc, R. Co. v. Bryan (Ariz.), 157 Pac.
376.

1. Damages not to be reduced to
nominal sum.—Louisville, etc., R. Co.

v. Lankford, 126 C. C. A. 247, 209 Fed.
321,

2. Charge in language of statute —
Louisville, etc, R. Co. v. Holloway,
163 Ky. 125, 173 S. W. 343; Nashville,
etc., Railway v. Henry, 158 Ky. 88,
164 S. W. 310.

8. St. Louis, etc., R. Co. v. Brown
(U. S.), 36 S. Ct. 602; Southern R.
Co. v. Hill, 139 Ga. 549, 77 S. E. 803.

4. Refusal of instructions—Grybow-
ski v. Erie R. Co. (N. J.), 95 Atl. 764.
Ԥ 188 FEDERAL EMPLOYERS LIABILITY ACT. 388
ages, should there be a finding of contributory negligence, it is error to re-
fuse an instruction that on a finding of negligence and contributory neg-
ligence the amount found for the plaintiff by reason of the negligence of
the defendant, should be diminished by an amount in proportion to the
amount of negligence attributable to the plaintiff.5 And if an instruction
failed to properly define the measure of damages, and there is a failure to
request a correction of the erroneous part, it is not error when the true rule

is subsequently practically stated by the instructions as a whole.®

The rule to be followed was laid down? in Norfolk, etc., R. Co. v. Earn-
est, 229 U. S. 114, 57 L. Ed. 1096, 33S. Ct. 654, Ann. (Cas. 1914C, 172,

where it is said:

“The statutory direction that the diminution shall be ‘in proportion to the
amount of negligence attributable to such employee’ 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 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 a case, and
to substitute a new rule, confining the exoneration to a proportional
part of the damages, corresponding to the amount of negligence at-

tributable to the employee.”

For the guidance of the Pennsylvania courts, where the rule of compara-

5. Error to refuse correct instruc-
tion when rule not covered by other
instructions.—Snyder v. Great North-
ern R. Co., 88 Wash. 49, 152 Pac. 703.

6. Failure to object to incorrect in-
struction.—Illinois Cent. R. Co. vw.
Skaggs (U. S.), 36 S. Ct. 249.

7. Rule of apportionment.—United
States —Norfolk, etc. R. Co. v. Ear-
nest, 229 U. S. 114, 57 L. Ed. 1096, 33
S. Ct. 654, Ann. Cas. 1914C, 172; Lou-
isville, etc., R. Co. v. Wene, 121 C. C.
A. 245, 202 Fed. 887; Pennsylvania Co.
v. Sheeley, 137 C. C. A. 471, 221 Fed.
901. See Philadelphia, etc., R. Co. wv.
Tucker, 35 App. D. C. 123, under act
1906.

Kentucky.—Louisville, etc., R. Co. v.
Holloway, 163 Ky. 125, 173 S. W. 343;
Cincinnati, etc., R. Co. v. Goode, 163
Ky. 60, 173 S. W. 329.

Vermont—White v. Central Ver-
mont R. Co., 87 Vt. 330, 89 Atl. 618.

On remanding the case in Cincin-
nati, etc., R. Co. v. Goode, 163 Ky. 60,
173 S. W. 329, it was directed that an
instruction supposing the plaintiff to
be guilty of contributory negligence
“in that event you must reduce the
amount of damages you find for him

to the extent that you believe from the
evidence that his negligence, if any,
contributed to said injuries” be changed,
so as to read “then you will diminish the
damages, if any, awarded him, in propor-
tion to the amount of negligence at-
tributable to the plaintiff, so that the
plaintiff will not recover full damages,
but only a proportional part, bearing
the same relation to the full amount
as the negligence attributable to the
defendant bears to the entire negli-
gence attributable to both.”

An instruction on contributory neg-
ligence which after pouring out its ef-
fect under the federal act is not erro-
neous in concluding that if the plain-
tiff was found guilty, “the damages, if
any, shall be diminished by the jury
in proportion to the amount of neg-
ligence, if any, attributable to the said
John G. Holloway by reason thereof.
So that the plaintiff will not recover
full damages, but only a proportional
part, bearing the same relation to the
full amount as the negligence attrib-
utable to the defendant bears to the
entire negligence attributable to both
the said Holloway and the defendant.”
Louisville, etc, R. Co. v. Holloway,
168 Ky. 262, 181 S. W. 1126.
389 DAMAGES. § 188

tive negligence is novel, after reviewing the federal supreme court decision,
in Waina v. Pennsylvania Co. (Pa.), 96 Atl. 461, it is said:

“In cases of this character, where the evidence justifies a finding that
both defendant and plaintiff were guilty of negligence contributing to
the accident, the jury should be carefully instructed concerning the
rule of comparative negligence established by the federal statute. It
is the duty of the jury first to determine whether or not the defendant
was guilty of casual negligence; for, if that issue is determined against
the plaintiff, there can be no recovery. If the issue of the defendant’s
negligence is determined in favor of the plaintiff, then the jury should
consider whether or not he, too, was guilty of negligence directly con-
tributing to the happening of the accident, and, if they decide that issue
against the plaintiff, then, looking at the combined negligence of the
plaintiff and defendant as a whole, and using their best judgment based
on the evidence before them, the next material subject for the jury to
consider is in what ratio should this combined negligence be distributed
between the parties to the accident; in other words, how much, or what
proporton, of the whole blame, or fault, should be attributed to each.
After this problem is solved, the jury must determine the amount of
the damages suffered through the combined negligence, and deduct there-
from a proportion corresponding with the share of negligence charged
against the plaintiff, the balance, or a proportion corresponding with the
share of negligence charged against the defendant, to be awarded as
damages to the plaintiff. We do not mean to say that the method just
outlined is the only way in which a jury may proceed to reach its con-
clusions in the trial of causes involving comparative negligence, but
rather simply to indicate an orderly manner for considering and deter-
mining such cases.”

An instruction is incorrect where after submitting to the jury the ques-
tion whether or not plaintiff failed to exercise ordinary care for his own
safety, and by reason of such failure he contributed to bringing about his
injury, the court adds: “Then you will diminish the damages, if any, you
many assess in his favor in proportion to the amount of negligence, if any,
attributable to him in causing or producing the injury complained of by
him.” § But in an action to recover for the death of a railroad conductor
killed in a collision which was due to a switch being left open by a flagman,
where it appeared that, though it was not his duty to close it, it was his duty
to see that it was closed, the court properly instructed the jury that he was
guilty of contributory negligence but that it would not bar a recovery still
the damages should be diminished by the jury in proportion to the amount
of negligence attributable to him. The circuit court of appeals saying, with
reference to such instruction:

“Manifestly, to give effect to the act, it is essential that the relative amounts
of damages caused by the negligence of the respective parties should
be declared, and we know of no fairer method than that followed by
the trial judge in this case.” ®

8. Nashville, etc., Railway v. Henry, 9. Instructions held proper.—Louis-
158 Ky. 88, 164 S. W. 310, 314. ville, etc., R. Co. v. Wene, 121 C. C.
A. 245, 202 Fed. 887.
§ 188 FEDERAL EMPLOYERS’ LIABILITY ACT. 390

An instruction criticized because, instead of saying that, if the plaintiff was
guilty of contributory negligence, the jury “must diminish the damages,” it
merely said that such negligence “goes by way of diminution of damages,”
is without merit where in one sentence the instruction plainly stated that the
statute requires, where the plaintiff has been guilty of contributory negli-
gence, that “the damages shall be diminished by the jury;” and the state-
ment in the next sentence that such negligence “goes by way of diminution
of damages” was evidently intended as a mere repetition of the statutory
requirement in somewhat different words. Its purpose was to give effect
to what went before, not to qualify it, and it is not reasonable to believe that
the jury could have thought otherwise.1°

A good instruction on the proportion of damages is found in Gekas v.
Oregon-Washington R., etc., Co., 75 Ore. 243, 146 Pac. 970, where:

“The court defined negligence and charged the jury that if they found
that the plaintiff was negligent himself, and that his own conduct con-
tributed to the injury, provided they found that the company was also
negligent, the plaintiff could not recover full damages, but that they
should be diminished in proportion to the amount of negligence attribu-
table to the plaintiff, as follows: So that your verdict, when finally
agreed upon, will be in proportion to’the full compensation as the neg-
ligence attributable to defendant bears to the entire negligence attribu-
table to both plaintiff and the defendant; that is to say your first in-
quiry should be, ‘Was the defendant guilty of negligence?’ And your
second inquiry should be, ‘Was the plaintiff guilty of negligence?? And
your third inquiry should be, ‘In what degree did these casual negli-
gences contribute to the accident?’ And I instruct you as a matter
of law you must determine what proportion plaintiff contributed to
causes that cattsed the accident. If you find pldintiff’s negligence con-
tributed 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; and if to the
extent of two-thirds, then his damages would be reduced by two-thirds ;
and if his 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.” 11

10. Norfolk, etc., R. Co. v. Earnest,
229 U. S. 114, 57 L. Ed. 1096, 33 S. Ct.
654, Ann. Cas. 1914C, 172.

An instruction that, “If you find that
the decedent, Edward M. Walsh, was
guilty of contributory negligence, then
the plaintiff will not be entitled to full
damages, but you will have to deduct
from the plaintiff's full damages such
damages as you may find have been
suffered. by reason of decedent’s own
negligence (that is, if you find that
the plaintiff is entitled to damages, you
will have to estimate first how much
damages the plaintiff has suffered, and
then, if you find that the decedent was
guilty of some negligence, you will
subtract from the entire damages such
proportion as you find was caused on

account of the decedent’s own negli-
gence),” properly submitted the ques-
tion of contributory negligence.
Walsh v. Lake Shore, etc., R. Co., 185
Mich. 177, 151 N. W. 754.

11. In Waina v. Pennsylvania Co.
(Pa.), 96 Atl. 461, it is said to be bet-
ter not to illustrate an instruction on
the proportion of damages, but it is
not erroneous in telling the jury that
in proportioning the negligence, it
does not mean that if the negligence
is equal there shall be no recovery but
that in such a case the plaintiff could
recover one-half, and if his negligence
was more than half, or greater, the
damages would have to be reduced in
proportion.
391

DAMAGES.

§ 188

It is improper in an instruction to tell the jury that the damages should
be reduced in the proportion that the negligence of the plaintiff compares to
the negligence of the defendant.12. Though such an error was held to have
been waived by a failure to point out the defect, and that it was not covered
by a general objection, in Norfolk, etc., R. Co. v. Earnest, 229 U. S. 114,
57 L. Ed. 1096, 33 S. Ct. 654, Ann. Cas. 1914C, 172, the court said: .

“But for the tise in the second instance of the additional words, ‘as com-
pared with the negligence of the defendant,’ there would be no room
for criticism. Those words were not happily chosen, for to have re-
flected what the statute contemplates they should have read, ‘as com-
pared with the combined negligence of himself and the defendant.’ We
say this because the statutory direction that the diminution shall be ‘in

12. Diminution by comparison of
negligence of each held error.—United
States—Norfolk, etc. R. Co. uv. Ear-
nest, 229 U. S. 114, 57 L. Ed. 1096, 33
S. Ct. 654, Ann. Cas. 1914C, 172, citing
Second Employers’ Liability Cases,
223 U. S. 1, 56 L. Ed. 327, 32 S. Ct.
169, 38 L. R. A., N. S., 44; New York,
etc, R. Co. v. Niebel, 131 C. C. A.
248, 214 Fed. 952.

Missouri—Cross v. Chicago, etc., R.
Co., 191 Mo. App. 202, 177 S. W. 1127;
Newkirk v. Pryor (Mo. App.), 183 S.
W. 682, 683.

Oregon.—Chadwick v. Oregon-Wash-
ington R., etc. Co. 74 Ore. 19, 144
Pac. 1165.

“The jury was instructed that, as
matter of law, upon the trial record,
Niebel was guilty of contributory neg-
ligence; but that, under the Employ-
ers’ Liability Act, his negligence and
that of the railroad (if any) through
other employees should be compared,
and, if the other negligence was
greater than his, a verdict should be
rendered for plaintiff; the total actual
damages being diminished in propor-
tion to the relative negligence of the
two parties. Since the case was tried,
the supreme court, in Norfolk, etc., R.
Co. v. Earnest, 229 U. S. 114, 57 L.
Ed. 1096, 33 S. Ct. 654, Ann. Cas.
1914C, 172, and Grand Trunk, etc., R.
Co. v. Lindsay, 233 U. S. 42, 58 L.
Ed. 838, 34 §. Ct. 581, has interpreted
the act to mean that the defendant is
liable, if through other employees it
is guilty of any causative negligence
no matter how slight in comparison
to that of plaintiff, and that the total
damages should be proportioned be-
tween plaintiff and defendant accord-
ing to the respective fractions of the
total negligence. In so far as the in-
terpretation of the statute by the trial
judge was not in accordance with
these later decisions, the error was

not prejudicial to defendant, and af-
fords no ground for reversal.” New
York, etc., R. Co. vw. Niebel, 131 C. C.
A. 248, 214 Fed. 952.

“The defendant sought to have the
jury instructed on the question of the
measure of damages to the effect that
if the plaintiff's negligence was equal
to or exceeded that of the defendant
they must find for the defendant. The
court, however, instructed the jury, in
substance, that it was the duty of the
jury to diminish or reduce the dam-
ages attributable to the defendant’s
negligence in proportion to the amount
of negligence justly chargeable to the
plaintiff, and if there should be any
difference in favor of the plaintiff, af-
ter the damages were reduced to a
money value, such difference should be
the amount of their verdict. The in-
struction of the court was in substance
a compliance with the federal statute
on that subject, which requires that
in case of contributory negligence it
shall not be a defense, “but the dam-
ages shall be diminished by the jury
in proportion to the amount of neg-
ligence attributable to such employee.’
Thus it will be seen that under that
statute it is not a question of major-
ity of negligence, but rather one of
proportion. Any negligence of the
defendant working injury to the plain-
tiff would therefore entail some dam-
ages. For illustration, let us suppose
that both parties were equally negli-
gent in the estimation of the jury and
that the actual damages of the defend-
ant were properly assessable at $2,000.
In such a case the verdict should be
for the plaintiff in the sum of $1,000,
for the reason that his negligence is
one-half of the sum total of all the
negligence of both parties.” Chadwick
v. Oregon-Washington R., etc., Co., 74
Ore. 19, 144 Pac. 1165.
{

ft

§ 188 DAMAGES. 392

proportion to the amount of negligence attributable to such employee’
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 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 a case, and to substitute a new rule, confining the exoneration
to a proportional part of the damages, corresponding to the amount of
negligence attributable to the employee.”

To instruct a jury that, if they found the plaintiff was injured through
the concurring negligence of the railway company and himself, they should
determine the full amount of damages sustained by him, “and then deduct
from that whatever amount you think would be proper for his contributory
negligence,” is error.13 In Seaboard Air Line Railway v. Tilghman, 237
U.S. 499, 59 L. Ed. 1069, 35 S. Ct. 653, the court said:

“This was reiterated in different ways and somewhat elaborated, but the
fair meaning of all that was said was that a reasonable allowance or
deduction should be made for the plaintiff’s negligence, and that it rested
with the jury to determine what was reasonable. No reference was
made to the rule of proportion specified in the statute, or to the occasion
for contrasting the negligence of the employee with the total causal
negligence as a means of ascertaining what proportion of the full dam-
ages should be excluded from the recovery. On the contrary, the
matter of diminishing the damages was committed to the jury without
naming any standard to which their action should conform other than
their own conception of what was reasonable. In this there was a fail-
ure to give proper effect to the part of the statute before quoted. It
prescribes a rule for determining the amount of the deduction required
to be made, and the jury should have been advised of that rule and its
controlling force.”

As contributory negligence to defeat a recovery, must directly and proxi-
mately contribute to the injury, so in an instruction, permitting a diminution
of damages for contributory negligence it is proper to limit it to such negli-
gence of the plaintiff as proximately contributed to the injury.14

If the instruction given should be such that the jury could not have under-
stood the rule as laid down by the supreme court, on the proportional dam-
ages plaintiff was entitled to recover when guilty of contributory negligence,
the case should be reversed and remanded for new trial.15

The defendant cannot complain of an instruction not prejudicial to him.
So where complaint was made of an instruction that plaintiff’s recovery, if
any, should be reduced “by such an amount as you find the negligence at-

13. Instruction permitting reasona- jury.—Illinois Cent. R. Co. v. Porter,
ble reduction erroneous.—Seaboard 125 C. C. A. 55, 207 Fed. 311.
Air Line Railway v. Tilghman, 237 U. 15. True rule when not plain, as
S. 499, 59 L. Ed. 1069, 35 S. Ct. 653, ground for  reversal_—Pennsylvania

reversing 167 N. C. 163, 83 S. E. 315.
14, Limiting to contributory negli-
gence that was proximate cause of in-

Co. v. Sheeley, 187 C. C. A. 471, 221
Fed. 901.
393 DAMAGES. § 188

tributable to him bore in proportion to the negligence of the defendant
company,” on the ground that under this instruction, if plaintiff was found
twice as negligent as defendant, he would recover one-half his damages.
Even if this instruction, standing alone, should be so construed; but con-
sidered in connection with the instruction, elsewhere given in the charge,
that “if the negligence of the plaintiff was as great as the negligence of the
defendant, there might be an equality of negligence, and therefore no sub-
stantial recovery of any amount of damages could be had’’—it is clear de-
fendant was not prejudiced.4¢ As to whether or not the defendant was
prejudiced by plaintiff’s instruction on the measure of damages which told
the jury that, in case they found the plaintiff guilty of contributory negli-
gence, “then such damages should be diminished by the jury in proportion
to the amount of negligence attributable to him, as compared with the neg-
ligence, if any, attributable to the defendant,” in Cross v. Chicago, etc.,
R. Co., 191 Mo. App. 202, 177 S. W. 1127, the court said:

“We cannot say the error was not prejudicial, since we have no means of
knowing the comparisons of negligence made by the jury. Whether this
above instruction would be more favorable to defendant or not depends
upon the relative amount of negligence the jury charged against the
parties. For instance, suppose the full amount of damages was $2,000,
and the jury thought the negligence to be charged to the plaintiff
should be stated at 2 and the defendant’s at 8. In that case plaintiff’s
negligence, according to the instruction, would be one-fourth as much
as defendant’s, while, according to the correct rule, it would be one-fifth
‘of the whole damage. In that event the instruction would be more fa-
vorable to defendant than would the correct rule, since, under the in-
struction, the full damages, $2,000, would be diminished by one-fourth,
or $500, leaving plaintiff’s verdict to be $1,500, while under the correct
rule the $2,000 would be diminished by one-fifth, or $400, leaving the
verdict $1,600. But suppose the jury thought the negligence of the
plaintiff was 8 and that of the defendant 2, then, under the instruction,
plaintiff’s negligence would be three-fourths, while, according to the

16. Prejudice to defendant by in-

€ ered by you.” And also, in summing
struction.—Pennsylvania Co. v. Cole,

up, the following was given: “If, how-

131 C. C. A. 244, 214 Fed. 948.

In Skaggs v. Illinois Cent. R. Co., 124
Minn. 503, 145 N. W. 381, 382, the
trial court after noting the common
law rule, charged that: “But this law
changes that rule and provides, as you
will have noted from my reading of
the section, that when, in an action
such as this, the plaintiff is himself
guilty of negligence which was a prox-
imate cause of the injury, that he will,
notwithstanding that, be entitled to re-
cover a proportionate amount of the
total injury sustained. His negligence
(if he was negligent) would be taken
into consideration, and that a compar-
ative amount, depending upon the ra-
tio of his negligence to the negligence
of the defendant, would be consid-

ever, you reach the conclusion from
all the testimony that the employee
Buchta was negligent, then the plain-
tiff is entitled to recover such sum as
will fairly and justly compensate him
for the injuries sustained by him, un-
less he was himself negligent, unless
the plaintiff was guilty of contributory
negligence, in which event you would
take into consideration his negligence
in comparison with the negligence of
the defendant and reach your conclu-
sion as to the amount under the in-
structions which I have given you.”
While it was held apparent that the
instruction complained of was techni-
cally erroneous; but that upon the
whole instruction no prejudice to de-
fendant resulted.
§§ 188-189 FEDERAL EMPLOYERS LIABILITY ACT. 394

correct rule, it would be four-fifths. In such case, under the instruc-
tion, the $2,000 would be diminished by $1,500, leaving $500 as the
verdict, while, under the correct rule, the $2,000 would be diminished
by $1,600, leaving plaintiff’s verdict at only $400. So that it all depends
on where the jury places the greater negligence as to whether the in-
struction as given is favorable or unfavorable to defendant. Hence
we cannot say the instruction was harmless.”

It is not required in an action brought under the federal act that damages
be assessed under separate issues, one as to the full amount sustained and
the other as to the amount to be deducted therefrom by the answer to the
issue of contributory negligence; and where the trial judge has correctly
charged the jury in this respect, under the one issue of damages, it will not
be held as erroneous.17

§§ 189-193 Amount of Damages—§ 189. In General.!8—When a
cause of action is founded on this act of congress, none of the provisions of
the state statute limiting damages apply to it. The act authorizes the recovery
of damages and places no restriction on the amount, and therefore no limita-
tion applies, except that of the damages actually sustained.1® Nor can a
recovery under the act be limited to the expenses incurred for the
last sickness and burial not exceeding $200 as provided by a state workmen’s
compensation act.2° In affirming a judgment of a state court, where the
ground relied upon for reversal was the refusal to instruct that a state
statute limiting the amount of recovery was controlling although the suit
was brought under the federal act, the Federal Supreme Court in Chicago,
etc., R. Co. v. Devine, 239 U. S. 52, 36 S. Ct. 27, 28,21 said:

“In substance and effect the want of merit in that proposition has by
necessary intendment been so conclusively established by the previous
decisions of this court concerning the exclusive operation and effect of
the Employers’ Liability Act over the subject with which it deals as
to exclude all ground for the contention which the proposition makes.”

And though a state statute in similar cases permits the addition of interest
to the verdict from the date of death, it is not permissible to allow it in
cases under this act; 2? but of course interest is allowable upon a judgment

17. Requiring jury to return separate Minnesota.— Nash v. Minneapolis,

amounts.—Gray v. Southern R. Co.,
167 N. C. 433, 83 S. E. 849, reversed
on other grounds in 36 S. Ct. 558.

18. As to widow holding child in lap,
causing excessive verdict, see ante,
“Witnesses,” Chap. XXIV.

19. Amount of damages—Effect of
state laws on amount.—United States.
—Chicago, etc. R. Co. v. Devine, 239
U. S. 52, 36 S. Ct. 27.

Illinois—Devine v. Chicago, etc., R.
Co., 266 Ill. 248, 107 N. E. 595.

Kansas.—Thornbro wv. Kansas, etc., R.
Co., 91 Kan. 684, 139 Pac. 410, Ann.
Cas. 1915D, 314.

etc., R. Co., 131 Minn. 166, 154 N. W.
957.

20. Grybowski v. Erie R. Co. (N. J.),
95 Atl. 764.

21. Chicago, etc., R. Co. v. Devine,
239 U. S. 52, 36 S. Ct. 27, 28.

22. Adding interest to verdict.—Nor-
ton v. Erie R. Co., 83 Misc. Rep. 159,
144 N. Y. S. 656.

“Plaintiff seeks to add interest on
the verdict from the time of decedent’s
death, $1,251.25, under the authority of
§ 1904 of the Code of Civil Procedure.
The recovery was exclusively under
the federal statute, which does not ex-
395

from its rendition until payment.2?

DAMAGES.

§ 189

No hard and fast rule by which pecuniary damages may in all cases be

measured is possible.24

In Michigan Cent. R. Co. v. Vreeland, 227 U. S.

59, 57 L. Ed. 417, 33 S. Ct. 192, Ann. Cas. 1914C, 176, the court said:

“In Lett vw. St. Lawrence, etc., R. Co., 11 Ont. App. Rep. 1; it was said
in the opinion of Patterson, J. A., after a review of all the English
cases construing the act of Lord Campbell—‘That there is through them

all the same principles of construction applied to the statute.

Each

fresh state of facts as it arose was dealt with, and furnished a further
illustration of the working of the act. The party claiming was held to
be entitled or not to be entitled, the scale of compensation acted upon
by the jury was approved or disapproved, in view of the immediate
circumstances ; but in no case has it been attempted to decide by antici-
pation what are the limits beyond which the benefit of the statute cannot

be claimed.’ ”

The rule must differ according to the relation between the parties plaintiff
and the decedent, according as the action is brought for the benefit of
husband, wife, minor child or parent, for the loss of services or
stipport to which the beneficiary was legally entitled, or is brought for the.
benefit of a person whose damages consist only in the loss of a prospective
benefit to which he was not legally entitled,?> and in addition the amount
to be recovered is made to depend upon the age, the character, the earning
capacity, the habits and morals of the deceased, and of his care, and attention
and solicitude for his children.26 Though there should be some similarity
in the award of damages for like injuries, still there is no exact rule for the
measurement of damages, and the facts of each case must be the basis on
which the amount is predicated,?7 and verdicts in previous and similar cases

pressly allow interest to be added to a
verdict, and that statute displaces the
state statute permitting interest to be
added. * * * If the action had been
tried and the recovery had under the
state statute, plaintiff could undoubt-
edly have added interest to the ver-
dict. Code Civ. Proc. § 1904. While
plaintiff, having brought her action in
a state court, can invoke the state
practice, so far as procedure is con-
cerned, her right of action rested ex-
clusively on the federal statute, which
does not allow interest to be added to
a verdict. * * * The jury, by its
verdict, stated, under the charge of the
court, what plaintiff was entitled to re-
ceive as damages; they can not be in-
creased by adding thereto an item of
interest not allowed by the terms of
the statute under which the case was
tried and the verdict rendered.” Nor-
ton v. Erie R. Co., 83 Misc. Rep. 159,
144 N. Y. S. 656.

In Easter v. Virginian R. Co. (W.
Va.), 86 S. E. 37, it is held that as in

tort actions interest runs only from
the date of the judgment, it is error
to give judgment for interest from the
date of the verdict; and, if such ex-
cessive interest exceeds $100, it is re-
versible error.

23. Interest on judgment.—See Louis-
ville, etc., R. Co. v. Stewart (U. S.), 36
S. Ct. 586.

24. No hard and fast rule-——Michigan
Cent. R. Co. v. Vreeland, 227 U. S. 59,
57 L. Ed. 417, 33 S. Ct. 192, Ann. Cas.
1914C, 176; St. Louis, etc., R. Co. wv.
Craft, 115 Ark. 483, 171 S. W. 1185,
affirmed in 35 S. Ct. 704.

25. Varies according to relation of
parties, etc—Michigan Cent. R. Co.v.
Vreeland, 227 U. S. 59, 57 L. Ed. 417,
33 S. Ct. 192, Ann. Cas. 4914C, 176.

26. Affected by age, habits, character
and earning capacity—Duke v. St.
Louis, etc., R. Co. (C. C.), 172 Fed. 684.

27. Tested by verdicts in similar
cases.—St. Louis, etc., R. Co. v. Craft,
115 Ark. 483, 171 S. W. 1185, affirmed
in 35 S. Ct. 704.
§§ 189-190 FEDERAL EMPLOYERS LIABILITY ACT. 396

do not necessarily preclude higher verdicts in following cases. Thus where
a verdict for $17,500 was rendered in favor of the plaintiffs, apportioned
by the jury as follows: $5,000 in favor of the widow, $3,500 in favor of
her seven year old daughter, $4,000 in favor of her six year old daughter,
and $5,000 in favor of her two year old boy. The evidence showed that the
deceased was 53 years of age at the time he was killed; was earning $175 a
month; was sober and domestic in his habits, and kind to his wife and
children.28 Considering such a verdict in Jones v. Kansas, etc., R. Co., 137
La. 178, 68 So. 401, the court said:

“The verdict is not excessive. * * * The learned counsel complain of
the amount of the award, and compare it with that awarded in the
‘Eichorn Cases,’ in which a widow and children were given $17,000;
but those cases were decided several years ago, and since then the pur-
chasing power of money has decreased and the cost of living has in-
creased in a ratio which more than accounts for the difference of $500
between those judgments and the judgment here rendered, even though,
as suggested, the present judgment, being governed by the federal stat-
ute, allows nothing for any suffering of the deceased or for the mental
anguish of the plaintiffs, and though it includes nothing in the way of
punitory damages.”

The question of the excessiveness of a verdict is always a delicate one for
a court of final resort, and where one of the grounds in the motion for a
new trial is that the amount of the verdict is excessive, and the trial court
has denied such motion, in passing upon an assignment predicated thereon,
an appellate court will not disturb the verdict on such grounds, unless the
amount is such as to shock its judicial conscience or as to indicate that the
jury must have been unduly influenced in some way, or swayed by bias,
passion, or prejudice.2% In considering the question of excessive damages
in an actiog by an administrator for the benefit of a widow, and two children,
an adult son and married daughter, the amount will be considered in refer-
ence to the widow only, as the children were not dependent.®°

§ 190. Recovery for Widow and Children.—A verdict of $17,545,
where the deceased was 29 years of age; his life expectancy was about 36
years; he was married in 1900, at about the age of 20, and killed in 1909;
in the’nine years of his married life, while apparently industrious, he had
spent several thousand dollars of his wife’s estate, and all he had made
himself, and his estate at his death amounted to about $250; before his
marriage he had taught a country school, and had nothing when he married ;
after his marriage he had driven a team used in hauling (presumably his
own); for a time he had stacked lumber at a sawmill, had farmed one

28. Jones v. Kansas, etc., R. Co., 137 R. Co. v. Goode, 169 Ky. 102, 183 S.
La. 178, 68 So. 401, reversed on other W. 264. As to reduction by remittitur,
grounds in 36 S. Ct. 513. see post, “Judgment on Appeal,” § 213.

29. Excessive when considered on ap- 30. Chesapeake, etc., R. Co. v. Dwyer,
peal.—Atlantic, etc., R. Co. v. Whitney, 162 Ky. 427, 172 S. W. 918, reversed on
65 Fla. 72, 61 So. 179; Cincinnati, etc., other grounds in 36 S. Ct. 633.
397 DAMAGES. § 190

year, and then began braking on a railroad; the evidence also showing
that he was in poor physical condition which would tend to shorten his life
the verdict was ordered reduced to $6,000 or in the alternative a new
trial.31

In another case the court, after stating the general principles, but
without reciting the evidence, reduced a verdict of $10,000 for the death of
the deceased to $7,500, taking into consideration the fact that he had been
guilty of such contributory negligence as would, independently of the stat-
ute, have barred all recovery, and excluding all allowance for suffering
which the deceased might have recovered had he survived, the injury having
been sustained prior to the amendment of April 5, 1910.82

A verdict of $25,000 cannot be said to exceed the pecuniary benefits to
be derived by a widow from her husband who was a locomotive engineer
earning about $200 a month with a life expectancy of over 28 years.33

A recovery of $20,000 is not excessive, where the deceased was a brake-
man, 29 years old, averaging $100 a month, in line for promotion, and the
survivors a widow and three small children upon whom he spent all of his
.salary.24 So $20,000 for the death of an engineer is not excessive, he being
only 31 years old, earning $175 a month and left a wife and child35 A
verdict of $25,000 reduced by a remittitur of $5,000 will not be disturbed
on appeal, though the employee as a fireman was only making $900 a year
and could only give about $700 to his family, the contention as to excess
being that as the deceased had an expectancy of 30 years, the income from
$10,000 was all the damages they were entitled to, while they were given
$20,000 outright.3¢

For the death of an employee, 38 or 39 years old, earning $75 to $85 a

31. Recovery for widow and chil-
dren—Verdict for $17,545 reduced to
$6,000.— Duke v. St. Louis, etc., R. Co.
(C. C.), 172 Fed. 684.

32. Recovery of $10,000 reduced to
$7,500 on account of contributory neg-
‘ligence.—Cain v. Southern R. Co. (C.
C.), 199 Fed. 211, 213.

$22,750 for death of electric foreman,
properly reduced to $15,000.—A verdict
of $22,750 for the death of the foreman
of a force of electric repairmen, earn-
ing $105 a month and paying his wife
$90 to $95 monthly, held excessive and
properly reduced by the trial court to
$15,000. Millette v. New York, etc., R.
Co. (App. Div.), 154 N. Y. S. 792.

A recovery of $18,000 for the benefit
of a widow and two children, for the
death of their husband and father, who
was: 35 years of age whose earnings
as a railroad employee did not appear,
but his previous earning in other occu-
pations averaged a little over $50 a
month, is excessive and unless reduced
to $12,000, a new trial ordered. Nash

v,. Minneapolis, etc., R. Co., 131 Minn.
166, 154 N. W. 957.

33. $25,000 held not excessive.—
Louisville, etc, R. Co. v. Holloway,
168 Ky. 262, 181 S. W. 1126.

A verdict of $25,000 is excessive,
and properly reduced to $15,000 where
the deceased left a widow and two chil-
dren, was 31 years of age, with a life
expectancy of approximately 34 years,
earning from $85 to $100 per month,
but used from $15 to $18 per month
for his personal expenses while out on
his work, the balance being contrib-
uted to the support of His family.
‘Hadley v. Union Pac. R. Co. (Neb.),
156 N. W. 765.

34, Recovery of $20,000 sustained. —
Gulf, etc., R. Co. v. Beezley (Tex. Civ.
App.), 153 S. W. 651.

35. Southern Pac. Co. v. Vaughn
(Tex. Civ. App.), 165 S. W. 885, writ
of error denied in 170 S. W. xix, no op.

36. Recovery of $25,000 reduced to
$20,000.—Southern Railway v. Bennett,
233 U. S. 80, 58 L. Ed. 860, 34 S. Ct.
566, affirming 98 S. C.'42, 79 S. E. 710.
§§ 190-192 FEDERAL EMPLOYERS’ LIABILITY ACT. 398

month, who left a wife and two children, a verdict of $12,000 is not so
large as to show passion or prejudice.27 A recovery of $3,000 in favor of
the estate and $12,000 for the widow and children, is not excessive, in the
case of a car repairer about 35 years old. At the time of his death he was
a big, stout, healthy man, industrious and moral, and received 22% cents
an hour, and who left a widow and two children.38

A verdict for the sum of $7,500, where the deceased was 43 years old,
and earning from $125 to $140 per- month; was an experienced brakeman,
and in line of promotion, sober, and industrious, is not excessive.%®

Where the deceased was an engineer 48 years old, earning $192 a month,
a verdict of $19,011 was not excessive, when he left a wife 45 years old,
and five children between 3 and 16 years old.4® In the case last cited the
contention was urged that the amount of recovery was such that if placed on
interest at 6 per cent, would yield an annual income greater than the amount
that the decedent’s widow would have received had he lived and yet leave
her the principal to dispose of at the time of her death, but was declared
to be without merit, in view of the fact that the award was equal to but two-
fifths of the decedent’s gross earnings.4!_ But on appeal to the Federal Su-
preme Court 42 the case was reversed for a failure to instruct the jury to
consider the earning power of the money in making their award.

§ 191. Recovery for Parents.—An award of $8,500 is not excessive
for the death of an engineer earning $175 a month; and the beneficiary is
his mother to whom he gave $7 5 or more each month to maintain the home
she kept for him, even though the mother had previously supported herself
and had other means of support.**

§ 192. Recovery for Pain and Suffering of Deceased.—A verdict
of $10,000 allowed for pain and suffering and mental anguish are excessive,
and should be reduced to $5,000 or a new trial ordered where deceased’s
legs were both mashed off to the knees, and no physician ministered
to him for an hour and a half thereafter, and he lived for five hours, suf-
fering great pain, at least before the arrival of the physician; and the testi-

37. $12,000 held not excessive.—
Thornbro v. Kansas, etc, R. Co. 91
Kan. 684, 139 Pac. 410, Ann. Cas. 1915D,
314,

38. St. Louis, etc., R. Co. v. Sharp,
115 Ark. 308, 171 S. W. 95.

A recovery of $11,150 for a widow
whose husband was earning $175 a
month with a life expectancy of thir-
teen and one-half years is not so ex-
cessive as to require interference.
Basham v. Chicago, etc., R. Co. (Iowa),
154 N. W. 1019.

39. $7,500 recovery sustained.—Ft.
Worth, etc. R. Co. v. Stalcup (Tex.
Civ. App.), 167 S. W. 279, writ of error
denied in 170 S. W. xviii, no op.

40. $19,000 recovery sustained.—
Chesapeake, etc., R. Co. v. Kelly, 160
Ky. 296, 169 S. W. 736.

41. Same—As exceeding net income
when placed at interest.—Chesapeake,
etc., R. Co. vi Dwyer, 162 Ky. 427, 172
S. W. 918. See, also, Chesapeake, etc.,
R. Co. v. Kelly, 160 Ky. 296, 169 S.
W. 736.

42. Chesapeake, etc., R. Co. v. Kelly
(U. S.), 36S. Ct. 630; Chesapeake, etc.,
R. Co. v. Gainey (U. S.), 36 S. Ct. 633.

43. Recovery for parents—$8,500 held
proper.—Donaldson vw. Great Northern
R. Co. (Wash.), 154 Pac. 133.
399 DAMAGES. §§ 192-193
mony shows that he suffered great anguish of mind about approaching
death, and continually begged those present to pray for him4*# This case
. was reversed on other grounds, however, on a writ of error to the Supreme
Court of the United States.4® So, too, a verdict of $11,000 for the pain
and suffering of the deceased, which continued for more than 30 minutes
after his injury is deemed excessive and should be reduced to $5,000.46 In
affirming this judgment the Supreme Court of the United States in St.
Louis, etc., R. Co. uv. Craft, 237 U. S. 648, 59 L. Ed. 1160, 35 S. Ct. 704,

said:

“Tt is said that the award of $5,000 as damages for pain and suffering,
even though extreme, for so short a period as approximately thirty
minutes, is excessive. The award does seem large, but the power, and
with it the duty and responsibility, of dealing with this matter, rested
upon the courts below. It involves only a question of fact, and is not
open to reconsideration here.”

§ 193. Recovery for Personal Injuries.—Where the employee, who
was a conductor on a freight train, was injured in the yards by reason of
his own negligence while on his way to enter the caboose of his train, which
had just been made up, the negligence on his part consisting in his failure to
observe or heed the signals of the switch engine, and in walking down the
track ahead of the same, no negligence whatever being shown upon the
part of the railway company, the court said that a verdict of $35,000 would
have been excessive, even if it had been shown that the railroad company
was negligent.47 So, too, where plaintiff was allowed $15,000 as damages,
this was held to be excessive by $3,000. He was 24 years old and earning
$80 to $85 per month. His life expectancy was 39.5 years. Prior to the
injury, his health was good, and since then it has been poor. He suffered
pain at the time of the accident and afterwards for four or five days it was
severe. The right arm was amputated about two inches below the elbow.*8

A verdict of $11,500 sustained by the trial court is not so excessive as
to warrant a reversal or reduction where plaintiff was a locomotive engineer
54 years old earning $157 a month and soon entitled to a raise of $175, he
being in good health and the injury resulting in the loss of an eye.4®

44, Recovery for pain and suffering
—Verdict for $10,000 for mental pain
and anguish reduced to $5,000.—St.
Louis, etc., R. Co. v. Hesterly, 98 Ark.
240, 135 S. W. 874.

45. Same— Reversed on other
grounds.—St. ‘Louis, etc. R. Co. v.
Hesterly, 228 U. S. 702, 57 L. Ed. 1031,
33 S. Ct. 703, reversing 98 Ark. 240, 135
S. W. 874.

46. $11,000 for pain and suffering re-
duced to $5,000.—St. Louis, etc., R. Co.
v. Craft, 115 Ark. 483, 171 S. W. 1185,
affirmed in 35 S. Ct. 704.

47. Recovery for personal injuries—
Award of $35,000 held grossly exces-

sive.—Neil v. Idaho, etc., R. Co., 22
Idaho 74, 125 Pac. 331.

48. Verdict for $15,000 held excessive
here—Bradbury v. Chicago, etc, R.
Co., 149 Iowa 51, 128 N. W. 1, 40 L.
R.A, N. S., 684.

Verdict of $15,000 recovered by a
member of bridge crew for a fracture
of the leg from which he suffered much
and resulted in a shortened and deformed
leg held excessive and reduced to
$10,000, if not accepted, new trial.
Smith v. Northern Pac. R. Co., 79
Wash. 448, 140 Pac. 685.

49. $11,500 for loss of eye.—Bower v.
Chicago, etc., R. Co., 96 Neb. 419, 148
N. W. 145.
§ 193 FEDERAL EMPLOYERS’ LIABILITY ACT. 400

Where both of plaintiff's feet were crushed; his right foot was crushed
in the instep and his toes were broken so the bones protruded through the
flesh, causing same to be permanently drawn out of shape; the muscles and.
tendons of this foot were permanently injured, so plaintiff could never have
full and free use of same; his left foot was bruised and maimed so that a
large portion of the bones of his ankle and foot were splintered and mashed,
and it was necessary to remove same; his injuries are permanent, which
require him to use crutches, in order to walk; he suffered a great deal of
pain, and was under care of physicians for several months. A verdict for
$16,900 is not excessive.5°

A verdict of $20,000 reduced by the trial court to $14,000 is not excessive
where the injury caused by jumping from an engine to avoid an impending
collision resulted in a permanently stiff knee, curvature of the spine and
partial paralysis and plaintiff's earning capacity totally destroyed, while
prior thereto he had earned from $100 to $145 a month.®!

A verdict of $9,000 reduced from $12,000 held not excessive in the case
of a conductor 38 years old earning from $125 to $130 a month when he had
been idle more than two years, the injury resulting in a reduction of two
inches in his height and also injury to his spine and neck and to his right
shoulder resulting in his inability to raise his arm above a horizontal posi-
tion.5?

An award of $8,700 damages, is not excessive, when the plaintiff was about
28 years of age, and earning $125 a month at the time of the injury. The
injury itself was serious. The outer table of the skull was fractured for a
length of 414 inches. Plaintiff testified that he was wholly incapacitated for
labor during the year that elapsed between the time of the injury and the
time of the trial. There was medical testimony tending to show that the
injury was permanent, at least unless relief could be secured by an opera-
tion, and it was a matter of conjecture whether an operation would afford
anything more than temporary relief.53 And $13,000 was not an excessive
recovery for an injury, where the plaintiff was 23 years old at the time of
the accident, as a result of his injuries his right arm was amputated, leav-
ing less than three inches of a stump at the shoulder, as a switchman he
earned from $110 to $115 a month, it was a year after the accident before
he was able to work, his first work after the accident was keeping an ac-
count of the number of boxes turned out in a box factory, at which work
he earned $2 per day. After leaving the box factory he has ever since
worked as a switch tender, earning $55 a month. If he had not been in-
jured, he might have worked up in the railroad service. As it is, he was

50. $16,900 not excessive for loss of
both feet.—St. Louis, etc, R. Co. v.
Brown (Okla.), 144 Pac. 1075.

51. $20,000 reduced to $14,000, for in-
jury to knee and spine.—Pelton v. II-
linois Cent. R. Co., 171 Iowa 91, 150 N.
W. 236.

52. $12,000 reduced to $9,000 for in-
jury to spine, neck and shoulder.—
Peery v. Illinois Cent. R. Co., 128
Minn. 119, 150 N. W. 382, 1103.

53. $8,700 for permanent injury to
skull—Rowlands v. Chicago, etc., R.
Co., 149 Wis. 51, 185 N. W. 156.
401 DAMAGES. § 193

filling one of the most ordinary positions in such service, with little or no
chance of promotion. Under these conditions, the verdict could not be
held excessive.54

A verdict of $35,000, where the plaintiff’s left leg had to be amputated
within 2 inches of the hip joint, reduced to $30,000, is not subject to further
reduction for the reason that plaintiff’s suffering might be reduced by a
surgical operation.®5

A verdict of $25,000 is not excessive where an employee 22 years old,
earning $75 to $100 a month, in good health and having a life expectancy
of 40 years, lost both hands, and one of his legs was broken resulting in its
being 214 inches shorter than the other.56 Verdict of $24,750 held large
but not excessive when plaintiff 25 years old was earning good wages as a
brakeman, knew no other vocation, and the injury resulted in the loss of his
leg, and his only way of locomotion is on his hands and knees.57

A recovery of $12,500 is not excessive in case of ah employee working as
a machinist, 35 years old and earning from $100 to $125 a month. He hav-
ing been injured ‘by an iron bar passing clear through his body, his recovery
regarded as a surgical curiosity and resulting in general physical impair-
ment.58 Where an engineer was injured in a collision so as to necessitate
the amputation of his leg three inches below the knee, and it appeared from
the evidence that he was guilty of contributory negligence a verdict of
$8,000 is excessive, because showing the damage was not diminished.5® A
recovery of $9,500 is not excessive, indicating passion and prejudice re-

54. $18,000 for loss of arm.—Grand
Trunk, etc. .R. Co. v. Lindsay, 120 C.
C. A. 166, 201 Fed. 836, affirmed in
32 S. Ct. 581.

55. $35,000 reduced to $30,000 for loss
of leg —Otos v. Great Northern R. Co.,
128 Minn. 283, 150 N. W. 922.

This finding was not disturbed on
appeal. Great Northern R. Co. v. Otos
(U. S.), 36 S. Ct. 124.

56. $25,000 for loss of hands and in-
jury to leg held proper.—Moore wv. St.
Joseph, etc., R. Co. (Mo.), 186 S. W.
1035."

57. $24,750 for loss of leg—Burho v.
Minneapolis, etc., R. Co., 121 Minn.
326, 141 N. W. 300.

A verdict of $25,000, for the loss of
a leg—it being jammed against a boiler
head and roasting for 50 minutes, ne-
cessitating amputation above the knee
—is not excessive requiring revérsal
where the plaintiff was at the time of
his injury 32 years old, was in the best
of health, a man of unusual physique,
who could stand the severest sort of
labor and perform the arduous duties
of a fireman on an engine as well as
and above the average man of his age.

Fed Act—26

He had been in the employ of the de-
fendant as a fireman 6% years, both in
freight and passenger service, earning
at the time of his injury about $100
per month, and after his injury and
up to the trial of this case he had been
unable to earn anything or do any-
thing, as he had no other profession
or trade than that he was pursuing
when injured. Chesapeake, etc, R.
Co. v. Carnahan (Va.), 86 S. E. 863,
868.

58. $12,500—Proper for injury to
body.—Chesapeake, etc, R. Co. wu.
Kornhoff, 167 Ky. 353, 180 S. W. 523.

Same—Loss of heel.—A verdict of
$12,500 will not be set aside as exces-
sive in the case of an employee, 24
years old in good health, earning $90
a month and with a life expectancy of
30.70 years, who had his heel cut off,
practically equivalent to the loss of his
foot, and after six years was still in
an unhealed condition requiring daily
dressing. Cincinnati, etc., R. Co. w.
Goode, 169 Ky. 102, 183 S. W. 264.

59. $8,000 for loss of leg excessive,
when contributory negligence shown.
—Holmberg v. Lake Shore, etc., R. Co.
(Mich.), 155 N. W. 504.
§ 193 FEDERAL EMPLOYERS’ LIABILITY ACT. 402

quiring a reversal, where an employee 22 years old and earning $105 a
month had his hip injured, resulting in the stiffening of his leg and its
becoming shorter than the other by an inch or inch and a half. The evidence
showing the injury permanent.®°

60. $9,500 not excessive for injury to hip.—Cincinnati, etc. R. Co. v. Nolan,
167 Ky. 11, 179 S. W. 1046.
CHAPTER XXVILI.

DismIssaAL AND NoNSsUuIT.

. In General, § 194.

Nonsuit as to One Party in Case of Fraudulent Joinder, § 195.
. As Res Adjudicata; § 196.

co ft et

§ 194. In General.1—The declaration in the federal act, that contribu-
tory negligence shall not bar a recovery is equivalent to a declaration that
the court shall not direct a nonsuit upon the ground that the plaintiff's own
evidence shows him to be guilty of contributory negligence, ? and this ap-
plies of course where the plaintiff sues in the state court and invokes the
benefit of the federal act, any state law with respect to contributory neg-
ligence or rule of practice to the contrary notwithstanding.?

Where the action was originally brought in the state court to enforce an
alleged common-law liability, and that court had power, in its discretion,
to dismiss the entire action without prejudice, it was equally within its
power to dismiss without prejudice to the commencement of a new action
under the federal act.4

A motion to dismiss on the ground of the claimed insufficiency of the al-
legations of a declaration is not properly made, as the sufficiency of a decla-
ration cannot be tested by a motion to dismiss.5

Where a suit as instituted is based on a right to recover as at common
law, and the employee becoming doubtful of his right to recover in the
action brought, instituted another proceeding under the act; it is held that
under such circumstances the second suit should not be dismissed.6 And
where the court decided that an action brought under the act, superseded
one brought under a statute and thus it was deprived of jurisdiction,
and ordered judgment for defendant, even if right in so ruling it was
wrong to order judgment as in such case it could only dismiss for want
of jurisdiction.? Nor should the action be dismissed for a failure to show
a right to recover under the federal act when the evidence is sufficient to
show a case under the state law.§

1. As to dismissal for want of evi-
dence, see anté, “Sufficiency of Evi-
dence,” §§ 160-164.

2. Contributory negligence no ground
for nonsuit—Horton v. Seaboard Air
Line R. Co., 157 N. C. 146, 72 S. E.
958, reversed on other grounds in 34
S. Ct. 635.

3. Same—Applies to case in state
court—Horton v. Seaboard Air Line
R. Co., 157 N. C. 146, 72 S. E. 958, re-
versed on other grounds in 35 S. Ct.
635.

4. Dismissal without prejudice, when.

—Oliver v. Northern Pac. R. Co. (D.
C.), 196 Fed. 432.

5. Dismissal for insufficiency of dec-
laration—Lynch 7. Central Vermont
R. Co. (Vt.), 95 Atl. 683, 685.

6. Dismissal because other action
pending.—Tinkham 7. Boston, etc., R.
Co., 77 N. H. 111, 88 Atl. 709.

7%. When dismissed for want of juris-
diction.—Corbett v. Boston, etc., Rail-
road, 219 Mass. 351, 107 N. E. 60.

8. Failure to show case under act.—
Cantin v. Glen Junction Transfer Co.
(N. H.), 96 Atl. 303.

403
§§ 195-196 FEDERAL EMPLOYERS LIABILITY ACT. 404

§ 195. Nonsuit as to One Party in Case of Fraudulent Joinder.—
Upon a motion for judgment of nonsuit, the allegations and evidence must
be considered in the light most favorable to the plaintiff, and the judgment
against a local railroad is improperly allowed for misjoinder of parties, it
being alleged, with supporting evidence, in an action for damages for per-
sonal injury, wherein defendant’s lessee, an interstate railroad company, was
joined as a defendant, that the plaintiff was a locomotive.engineer of the latter
company, assigned for duty on an interstate train, including in the route a
part of the leased road, and thereon operating under the franchise of the
lessor road; that the injury complained of occurred on a siding off of the
leased premises, by reason of a defect in the locomotive, this siding con-
necting with the main line of the lessee company at either end, and while
the locomotive was being oiled and inspected by the plaintiff for the purpose
of a trial run necessarily passing over a portion of the leased road; that
the lessee company had just had the locomotive repaired at its shop, from
which all engines necessarily had to pass over the leased road to get to the
other lines of the lessee.®

§ 196. As Res Adjudicata.—A judgment of nonsuit is not one on
the merits and therefore not a bar to another suit on the same cause of
action.1°

9. Nonsuit as to one party in case of 10. As res adjudicata—Bixler v.
fraudulent joinder—Lloyd v. North Pennsylvania R. Co. (D. C.), 201 Fed.
Carolina R. Co., 162 N. C. 485, 78 S. 553, 555. See ante, “Former Judgment
E. 489. as Res Adjudicata,” § 85.
CHAPTER XXVIII.
TRIAL AND VERDICT.

1. Consolidation and Continuance, 197.
2. Arguments of Counsel, § 198.
3. Verdict, § 199.

§ 197. Consolidation and Continuance.—Where a suit is instituted
to recover damages for personal injuries as at common law, and a subse-
quent suit is instituted under the federal act, upon motion of plaintiff the
two suits should be consolidated or tried together, so that the parties may
proceed to try out the merits of all parts of their controversy.1 And also,
when two actions are brought, one under a state and the other under the
federal acts, they should be combined and tried as one; for only in such case
would the rights of parties be effectually presented, and the action under
the state act should not be dismissed on the ground that the federal act is
supreme.?

Where the district court refused to allow the defendant a continuance,
and the defendant was thereby prevented from presenting its theory of its
defense to the court and jury, and was denied a fair trial, the action of the
court will be deemed to be an abuse of discretion, for which a new trial will
be granted.2 But where an amendment was allowed, alleging the depend-
ency of beneficiaries so as to have the pleadings conform to an action under
the federal act and the court left it to counsel to say whether he was taken
by surprise, and the counsel was not being willing to do so, the refusal of a
continuance is not an abuse of discretion.4 In Seaboard, etc., Railway v.
Koennecke, 239 U. S. 352, 36.8. Ct. 126, the court said:

“The court left it to the counsel to say whether he was taken by surprise,
and, the counsel not being willing to say so, although saying that he was
not prepared on the question of dependency, ordered. the trial to proceed.
It was alleged as an error that the requirement was contrary to the 14th
Amendment. * * * There is nothing to show that the trial court ex-
ceeded its discretionary power in allowing the trial to go on,—still less
that there was such an arbitrary requirement as to amount to a denial of
due process of law within the 14th Amendment. The court well may
have considered that the defendant was endeavoring to get a technical
advantage, as it had a right to, but that it would suffer no wrong. The
cause of action arose under a different law by the amendment, but the
facts constituting the tort were the same, whichever law gave them that
effect, and the court was warranted in thinking that on the matter of
dependency there was no surprise.”

1. Consolidation of causes for trial. lieu v. Union, etc., R. Co., 97 Neb. 360,
—Tinkham v. Boston, etc., Railroad,.77 149 N. W. 772. Under local law, 8

N. H. 111, 88 Atl. 709. 1, c. 39, Laws 1911.
2. Corbett v. Boston, etc., Railroad, 4. Seaboard, ae Railway v. oan.
219 Mass. 351, 107 N. E. 60. necke (U. S.); 36 S. Ct. 126, affirming

3. Refusal of continuance.—Riche- 85 S. E. 374.
405:
§ 198 FEDERAL EMPLOYERS LIABILITY ACT. 406

§ 198. Arguments of Counsel.—The discretion of the trial judge in al-
lowing argument of counsel is not error, unless abused.> There is nothing
in the federal statute making the defendants’ ability to pay material upon the
questions of liability or amount; so an argument of the plaintiff’s counsel to
the jury, that the verdict asked was not a very serious matter to the railroad,
“taking from them a few coppers, * * * but it means a good deal to her,”
exceeded the limit of legitimate advocacy. And remains prejudicial even
though the statement is made, “That is another way of saying that money
can never bring back her husband toher, * * * that is all I mean by it.”
This was not a withdrawal of the intimation that the damages asked were a
small amount to the defendants.®

For counsel to draw a picture of an imaginary wayward son or daughter at
that critical period when they are prone to go astray, saved by the timely
interference of a strong and tender and watchful father, and from this imag-
inary incident draw the inference that no money could compensate for such
things, and make that the basis of a verdict in damages in a case where there
could be no such evidence, since the only children of deceased were of very
tender years, and what might occur when they had reached the period in life
when such a spectacle as was pictured could occur, is obviously going beyond
the realm of legitimate discussion upon the evidence adduced, and indulging
in speculation as to conditions which may never occur as the basis for the
recovery of damages. The law recognizes no such rule. And the court
should of its own motion stop counsel and admonish the jury to disregard
the remarks. But in a case where there was no admonition, and even though
defendant’s counsel made no objection, the verdict being manifestly excessive,
the courts will order a remittitur or in the alternative a new trial.?7 Failure
of the defendant to call a witness is proper subject for argument of counsel.8
So in an action brought for the benefit of the decedent’s parent, evidence of
contributions when made by the child to the support of the parent is material
and important in determining whether reasonable expectation of pecuniary
benefit exists, and also as to the amount of the recovery. Therefore, where
the parent has not testified as to the pecuniary benefits he had received dur-
ing the life of the child, it is competent for the defendant’s attorney, in his
argument to the jury, to comment on this fact; and for the court to refuse
to permit such argument, is held reversible error, especially where it appears
that the error was accentuated by a refusal of a special prayer for instruc-
tions tendered by the defendant, that there was no evidence of contribution
by the son to the support of the parent, and a charge that the jury may con-

5. Argument of counsel.—Dutton v. 7. On father’s restraint of wayward
Atlantic, etc., R. Co. (S. C.), 88 S. E. children—Duke v. St. Louis, etc. R.
263. ; Ms Co. (C. C.), 172 Fed. 684.

6. On defendant’s ability to pay.— 8. Failure to call witnesses.—Cincin-
Caverhill v. Boston, etc. Railroad, 77 nati, etc, R. Co. v. Tucker, 168 Ky.
N. H. 330, 91 Atl. 917. 144, 181 S. W. 940; Dutton v. Atlantic,

etc, R. Co. (S. C.), 88 S. E. 263.
407 TRIAL AND VERDICT. §§ 198-199

sider what support he had given, when there was no evidence thereof.®

Arguments of counsel should be objected to when made, and the practice of
raising the objection for the first time on motion for new trial, even where
permitted, is not favored.1°

— § 199. Verdict.11—Where a defendant files a plea in abatement alleging
that the employee was engaged in interstate commerce at the time of the in-
jury, and that the transaction was governed by the Federal Employers’ Lia-
bility Act, and not by a state statute, and also a plea to the merits, and by
consent all the issues are tried together, the better practice is that there should
be separate verdicts upon the different pleas; but where there is a general
finding for the plaintiff, this by necessary implication is to be construed as
a finding against all of the pleas.1?

The practice of submitting special questions in aid of a general verdict has
been long recognized 13 and in addition to the general verdict it is not error
to require a finding, on whether the defendant violated the safety appliance
act, whether such violation was the proximate cause of the injury, and
whether plaintiff used ordinary care for his own safety.14 And where
under special interrogatories the amount of damage sustained by different
injuries is set forth, an item of damage allowed for an injury neither
proved nor found should be deducted from the amount of the verdict.15

Special and general verdicts should not be inconsistent and so are rec-
onciled when possible. Because if they are inconsistent a new trial will
be ordered.4® Thus where a special interrogatory was submitted to the

9. Irvin v. Southern R. Co., 164 N.
C. 5, 80 S. E. 78.

Stating facts not in  evidence.—
Where counsel argued to the jury that
he was present at the physical exam-
ination of the plaintiff by expert wit-
nesses and that one of the expert wit-
nesses who had testified in the case did
not get the plaintiff in a proper posi-
tion to make a test of the injury
claimed to have been received, when
there is objection made, and the state-
ment is not withdrawn by counsel and
the court does not then or later charge
the jury relative to it, it is error re-
quiring a new trial. Smith v. Great
Northern R. Co. (Minn.), 158 N. W. 46.

10. Time of objection.—Papoutsikis
v. Spokane, etc., R. Co. (Wash.), 153
Pac. 1053. ;

11. Verdict.—As to right to add in-
terest to verdict; excessive verdicts;
necessity of verdict apportioning dam-
ages among beneficiaries, see post,
“Damage,” Chap. XXVI.

12. General finding considered as
against all issues——Southern R. Co. v.
Murphy, 9 Ga. App. 190, 70 S. E. 972.

“The rule is that, when a jury re-

turns a verdict upon one count ofa pe-
tition, this is equivalent to a finding
against plaintiff on other counts con-
currently submitted.” Moore wv. St.
Joseph, etc., R. Co. (Mo.), 186 S. W.
1035, 1039.

13. Right to require special finding.
—Grand Trunk, etc. R. Co. v. Lind-
say, 120 C. C. A. 166, 201 Fed. 836, af-
firmed in 32 S. Ct. 581.

14. Grand Trunk, etc., R. Co. v. Lind-
say, 120 C. C. A. 166, 201 Fed. 836.

15. Deduction of special damage not
proved.—Barker v. Kansas, etc. R.
Co., 88 Kan. 767, 129 Pac. 1151, 43 L.
R. A, N. S., 1121.

16. Consistency of special and gen-
eral findings.—Cole v. Atchison, etc.,
R. Co., 92 Kan. 132, 139 Pac. 1177; S.
C., 155 Pac. 949; Martin v. Atchison,
etc., R. Co., 93 Kan. 681, 145 Pac. 849.

In an action for wrongful death, un-
der the Federal Employers’ Liability
Act, a general verdict for the plaintiff
must be set aside, where the jury de-
clare in one finding that the accident
would have happened even if the de-
cedent had not been negligent, and in
§ 199 FEDERAL EMPLOYERS LIABILITY ACT. 408

jury on the question of assumed risk and their answer was “no unusual
risk.” This will be taken to mean that the risk was unusual for only in
this way could it be reconciled with the general verdict returned in plain-
tiff’s favor.17 But where the jury found a general verdict for the plaintiff
for $9,100 and a special finding that he was guilty of contributory negli-
gence requiring a reduction of $100 it was held, that if the deceased was
guilty of contributory negligence, his negligence must have been more than
a one ninety-first part of all the negligence that caused his injury. That
amount would have been so small as to render it not worthy of notice.
Either the deceased was not negligent, or, if he was negligent, his neg-
ligence contributed substantially to his injury. And as there was nothing
to indicate passion or prejudice on the part of the jury, under these cir-
cumstances, a new trial must be ordered or the judgment reduced.18

Even though the answers to special interrogatories are favorable to the
plaintiff on the issue of contributory negligence and they return a general
verdict in his favor, this is not conclusive that he was not negligent, as
contributory negligence would not have been a complete bar to a re-
covery.19

As the local law with respect to submitting special findings along with a
general verdict does not control the federal courts in respect to the mode in
which causes shall be submitted to the jury, it is a logical consequence that
the federal courts will not be bound by the rules obtaining in local courts
for interpreting stich verdicts. The general rule with respect to this

another that his negligence contrib- and to take precaution to protect him-
uted to it; no deduction from the self when cars were backed against
amount allowed appearing to have the one on which he was working.
been made on that account. Pyles v. The jury, however, specifically found

Atchison, etc., R. Co. (Kan.), 155 Pac.
788.

17. Same—General finding and as-
sumed risk.—Great Northern .R. Co. vw.
Mustell, 138 C. C. A. 305, 222 Fed. 879.

18. Same—General finding and con-
tributory negligence—Saar v. Atchi-
son, etc., R. Co. (Kan.), 155 Pac. 954,
955.

“The jury found that appellee was
chargeable with contributory negli-
gence, and that, by reason of that neg-
ligence, the damages which he sus-
tained, to wit, $3,000, was diminished
to $1,500. Under:the employers’ lia-
bility law, contributory negligence of
- the employee is not a defense to the
negligence of the employer, but it may
be considered, and the damages sus-
tained may be diminished in propor-
tion to the amount of negligence at-
tributable to the employee. Now the
negligence charged against the appel-
lee was his act in sealing the cars after
dark, instead of doing it in daylight,
and in failing to keep a lookout when
switching was being done in the yard,

that the appellee was not guilty of
negligence in going upon the cars after
dark, and that while it was his duty
to keep a lookout for switching trains
and engines in the yard, that he, in
effect, did keep a reasonable lookout
for them. The jury cut his recovery
one-half because of his negligence, and
yet by these answers declared that he
was not negligent. Another finding is
that appellee knew that trains were be-
ing switched in the yard when he was
upon the refrigerator car engaged in
sealing it, and yet in another finding
the jury said ‘that he could not have
safeguarded himself against the acci-
dent if he had been watching for the
backing of cars upon the track where
he was at work. These findings are in-
consistent with each other and with
the general verdict.” Cole v. Atchison,
etc., R. Co., 92 Kan. 132, 189 Pac. 1177.
19. Special findings and verdict for
plaintiff not conclusive of contributory
negligence.—Cincinnati, etc., R. Co. wv:
Gross (Ind. App.), 111 N. E. 653.
409 TRIAL AND VERDICT.

§ 199

subject is that the court, in determining what judgment shall be entered
upon a special verdict, will not look to the evidence nor beyond the plead-
ings and the judge’s record.2® In those jurisdictions where both a special
and general verdict may be taken the special verdict will prevail over the
general, and this is perhaps the general rule. But this can only be so where
the special verdict has been found respecting every material issue; other-
wise the court could not be in a position to deduce the conclusions of law
necessary to a decision of the case.2! Thus where the jury returned a
general verdict for the plaintiff, and special findings that he had received a
proper train order, that the employer had violated the safety appliance act,
and that the plaintiff violated the order which was the proximate cause of
his injury, such last special finding was held not to control the general
verdict, for it was not a finding of fact but a conclusion of law, and even
had the plaintiff violated orders the proximate cause of his injuries, the
employer was guilty of concurrent negligence in violating the safety appli-
ance act and when such act is violated the negligence of the plaintiff does
not operate even to reduce the damages.?2: In this case on appeal to the
Federal Supreme Court it was held that while it was doubtful whether
under the conformity act 23 the trial court was required to adhere to the
state practice governing the effect of the general verdict and the special
findings, and without deciding the question proceeded to a determination
of their effect according to the state practice and reached the same con-
clusion as did the circuit court of appeals above set forth.?#

Affidavits or testimony of jurors will not be received for the purpose of
impeaching their verdict.2° Where jurors without any agreement to abide
by the result, write the various amounts which they think the plaintiff
should recover and divide the sum by twelve, and after this was done,
there were several votes taken on the question as to the amount the plain-
tiff should: recover and, finally, the jurors concurred in the verdict for nearly
the amount of the quotient so found, this is not objectionable as the re-
To cttre an excessive

sult of chance or lot, nor as a quotient verdict.*6

.

20. Local laws as to special verdicts
affecting federal courts.—Spokane, etc.,
R. Co. v. Campbell, 133 C. C. A. 370,
217 Fed. 518, affirmed in 36 S. Ct. 683,
but this question was undecided. |

21. When special or general verdict
prevails—Spokane, etc, R. Co. w.
Campbell, 133 C. C. A. 370, 217 Fed.
518.

22. Spokane, etc., R. Co. v. Campbell,
133 C. C. A. 370, 217 Fed. 518, affirmed
on this point in 36 S. Ct. 683.

23. Rev.’ Stat, § 914, Comp. Stat.
1913, § 1537.

24. Spokane, etc., R. Co. v. Campbell
(U. S.), 36 S. Ct. 683.

25. Right of jurors to impeach ver-
dict.—St. Louis, etc, R. Co. v. Brown

(Okla.), 144 Pac. 1075, affirmed in 36
S. Ct. 602.

26. Quotient verdict—St. Louis, etc.,
R. Co. v. Brown (Okla.), 144 Pac. 1075,
affirmed in 36 S. Ct. 602.

A quotient verdict is defined to be
“a verdict where each juror marks
down an amount, then the amounts
thus marked down, being added to-
gether, the sum is divided by the num-
ber of jurors and the result rendered
as their verdict.” This must be done
as the result of an agreement in ad-
vance to make it their verdict. St.
Louis, etc., R. Co. v. Brown (Okla.),
144 Pac. 1075, 1077, affirmed in 36 5S.
Ct. 602.
§ 199 FEDERAL EMPLOYERS’ LIABILITY ACT. 410

verdict the trial court cannot arbitrarily order a remittitur.27 If a remit-
titur is entered, it must be at the election of the plaintiff. It may, however,
be at the suggestion of the court that, if not done, a new trial will be
granted.28 ; ares S

27. Curing excessive verdict by re- 28. Duke v. St. Louis, etc., R. Co. (C.
mittitur—Kennon v. Gilmer, 131 U. S. C.), 172 Fed. 684. See post, “Judgment
22, 33 L. Ed. 110, 9 S. Ct. 696. on Appeal,” § 213.
CHAPTER XXIX.

APPEAL AND ERROR.

. Exceptions and Objections, § 200.
. Petition for Writ, Briefs, Assignment of Error, and Bill of Exceptions, § 201.
. Necessity of Prejudicial Error, § 202.
. Changing Theory of Case on Appeal, § 203.
Presumption on Appeal, § 204.
. Parties on Appeal, § 205.
Former Opinion as Law of Case, § 206.
. Questions Proper for Review, § 207.
. Appeals Peculiar to Particular Courts, §§ 208-212.
a. From Lower Federal Court to Supreme Court, § 208.
b. From Circuit Court of Appeals, § 209.
c. From Court of Appeals in District of Columbia, § 210.
d. From State Court of Last Resort to Supreme Court of United States,
§§ 211-212.
(1) Claim and Denial of Federal Right, § 211.
(2) Extent of Review, § 212.
10. Judgment on Appeal, § 213.

CHMONANXR WHE

§ 200. Exceptions and Objections.1—Exception must be taken to
the ruling of the court, and that an objection to a witness was overruled,
but when overruled no exception was made to the action of the court, this
is not a sufficient presentation of the ground for review.2 The practice
in state courts as to the sufficiency of objections to: instructions and re-
quests to instruct does not control in the federal courts. With the excep-
tion of objections to the jurisdiction of the court* objections not raised, or
the grounds of an execution not stated in the court below, will not be
considered on appeal. So upon an appeal by the plaintiff from an order
denying his motion for a new trial the defendant cannot have reviewed
his motion in the trial court to. set aside the service of the summons upon
the ground that no personal jurisdiction was acquired, it being a foreign

1. Failure to object to declaration as 248, 107 N. E. 595; White v. Central
waiver of allegation of pecuniary loss, Vermont R. Co., 87 Vt. 330, 89 Atl.
see ante, “Pecuniary Loss of Benefici- 618.
aries,” § 97. On the failure to raise below the ques-

2. Exceptions must be made to rul-_ tion of the propriety of joining in the
ing.—St. Louis, etc, R. Co. v. Duke, same declaration, counts claiming dam-
112 C. C. A. 564, 192 Fed. 306. ages for death, and for pain and suf-

3. State practice not controlling in fering, the defendant could not do so
federal courts.——Pennsylvania Co. v. for the first time on appeal. Louis-
Sheeley, 137 C. C. A. 471, 221 Fed. 901. ville, etc, R. Co. v. Fleming (Ala.),
See also, Duke uv. St. Louis, etc, R. 69 So. 125.

Co. (C. C.), 172 Fed. 684. Same—To evidence.—See ante, “Ob-
4. Illinois Cent. R. Co. v. Rogers, 136 jections and Waiver,” § 168.
C. C. A. 530, 221 Fed. 52. Same— To _ instruction.—See ante,

5. Must be made in court below.—De- “Exceptions and Objections,” § 174.
vine v. Chicago, etc., R. Co., 266 Ill.

411
§ 200 FEDERAL EMPLOYERS LIABILITY ACT. 412
corporation not doing business in the state, and the motion was denied,
but no appeal was taken.6 So should the particular point of objection be
not sufficient to direct the attention of the trial court thereto, it cannot be
enlarged on appeal so as to make the particular point appear.”

Even though an objection is insufficient, plain error may be noted.®
But the failure to plead and prove that plaintiff’s injury occurred in in-
terstate commerce, will not be noted as plain error where the appellate
court of the state treated the case as coming within the federal act, and
the assignments of error in the Federal Supreme Court and the argu-
ments thereon proceeded upon that basis. The court declined to consider
this important omission for two reasons: (1) The omission may have
been due to an oversight that would have been corrected if the point had
been properly raised in the state courts. (2) As the safety appliance act
was in any event applicable, that the question of the plaintiff’s engagement
in interstate commerce would only bear upon the defense of contributory
negligence and an examination of the record disclosed that no question as
to this defense was raised.®

Recognizing the rule that a total absence of right on the part of the
plaintiff may be urged at any stage of the cause, it held that the right of
widow to a recovery under the act may be advanced on appeal for the
first time.1° In an action, brought by the surviving wife against a com-
mon carrier by railroad, to recover damages for the wrongful death of
her husband, recoverable, if at all, under authority of the federal act, it
appeared from the amended answer that the carrier and the deceased were,
at the time of the injury, engaged in interstate commerce, and which al-
legation of the answer is not put in issue, though a reply was filed, and
where defendant company files a motion for judgment on the pleadings,
objects to the introduction of any evidence, demurs to the evidence in-
troduced at the close of plaintiff's case, and after all the evidence is in,
moves for a peremptory instruction in its favor, it cannot be said that said
defendant has waived its right to insist, on appeal, that the action could
not be brought by such wife suing in her own right.11

The contention that a case is controlled by the federal act which does not
permit a recovery for pain and suffering for the deceased’s estate, is suf-
ficiently presented for consideration on appeal where the evidence shows
that the run of the train on which the deceased was injured was intrastate,

6. Same—Service.—Lewis wv. Den- 9. San Antonio, etc, R. Co. v. Wag-

ver, etc., R. Co., 181 Minn. 122, 154 N.
W. 945.

7. Same—Enlargement on appeal.—
Chicago, etc, R. Co. v. McCormick,
jig C. C. A. 52%, 200 Fed. 375, 47 L..
R. A., N. S., 18; Jacobs v. Southern R.
Co. (U. S.), 36 S. Ct. 588.

g. “Plain error’ when noted.—Penn-
sylvania Co. v, Sheeley, 137 C. C. A.
471, 221 Fed. 901.

ner (U. S.), 36 S. Ct. 626.

10. To right of plaintiff to judgment.
—La Casse v. New Orleans, etc., R.
Co., 1385 La. 129, 64 So. 1012.

11. Sufficiency of objection to cover
capacity of party plaintiff—Missouri,
etc, R. Co. v. Lenahan, 39 Okla. 283,
135 Pac. 383.
413 APPEAL AND ERROR.

§ 200
but it is not shown whether it engaged in or hauled interstate commerce
on the trip, and the defendant asked for a peremptory instruction on a count
based on the federal act, on the ground that plaintiff was not entitled in any
event to recover for the pain and suffering of the deceased for the benefit of
his estate.1? In an action claiming damages for injuries under both the fed-
eral act and at common law, the question as to whether there was any
legal evidence to sustain the claim that the parties were engaged in inter-
state commerce was preserved as a question of law, when the evidence
closed, counsel on either side had their instructions prepared for submis-
sion to the court and at the court’s suggestion exchanged them for mutual
examination during the noon hour, but they were not then submitted to
the court for his consideration. When court met, each party received his
own instructions from the other, but they were not then submitted to the
court. Counsel for the appellant presented first his written instruction for
a verdict as to each count, and counsel for appellee then presented his pre-
liminary instructions. Afterward the court, at the request of the respec-
tive parties, gave their instructions in the case generally.13

The applicability of the federal law to a case will not be considered when
raised for the first time on appeal,1# subject to the qualification that
neither the pleadings nor evidence show the same to have been applicable.
As in the latter case it is the only law by which the case could be tried, and
it is the duty of the court to apply the law which the facts show applica-
ble, whether or not its application to the case is urged by counsel.1® So

12. Recovery for pain and suffering
when raised by peremptory instruc-
tion—St. Louis, etc. R. Co. v. Hes-
terly, 98 Ark. 240, 135 S. W. 874, re-
versed, on other grounds, in 228 U.
S. 702, 57 L. Ed. 1031, 33 S. Ct. 703.

13. Sufficiency to cover claim that
evidence insufficient to show case.—
Patry v. ‘Chicago, etc., R. Co., 265 Il.
310, 106 N. E. 843.

14. Federal law first raised on ap-
peal—New York.—Rogers vu. New
York, etc. R. Co. (App. Div.), 157
N. Y. S. 83.

Oklahoma.—Chicago, etc., R. Co. v.
Holliday (Okla.), 145 Pac. 786; Chi-
cago, etc, R. Co. v. McBee (Okla.),
145 Pac. 381.

Texas.—Chicago, etc., R. Co. v. Rog-
ers (Tex. Civ. App.), 150 S. W. 281,
writ of error denied in 154 S. W. xx,
106 Tex. 618, no op. : .

Wisconsin.—Leora v. Minneapolis,
etc, R. Co., 156 Wis. 386, 146 N. W.
520, followed in Hanson v. Chicago,
etc., R: Co., 157 Wis. 455, 146 N. W.
524,

“The rule seems to be well settled
that a defendant * * * will not be
permitted for the first time in an ap-
pellate court to invoke the protection
of a federal statute. Midland Valley

‘

R. Co. v. Lemoyne, 104 Ark. 327, 148
S. W. 654; Chicago, etc., R. Co. v. Rog-
ers (Tex. Civ. App.), 150 S. W. 281,
writ of error denied in 154 S. W. xx,
106 Tex. 618, no op. See Volume 1
Encyc. U. S. Supreme Court Reports,
pp. 620, 621.” Chicago, etc., R. Co. v.
McBee (Okla.), 145 Pac. 331, 333.

Plaintiffs and defendants in the trial
court proceeded upon the theory that
§§ 5281 and 5282, Rev. Laws 1910,
were controlling. There is nothing in
the pleadings or the evidence, or oth-
erwise in the record, to bring the case
within the purview of the Employers’
Liability Act of April 22, 1908, c. 149,
35 Stat. 65 (U. S. Comp. St. 1913, 8§
8657-8665), or to show that defendants
relied upon said latter act or directed
the attention of the trial court to
same. No federal question was sought
to be raised until after the case was
brought to this court: Held, that the
case is controlled by the state law,
supra. Held, further, that defendants
can not successfully raise a federal
question for the first time in this court
on appeal. Chicago, etc., Co. vw.
Holliday (Okla.), 145 Pac. 786, 787.

15. See ante, “Exclusive and Con-
trolling Operation of Federal Act,” §§
24-28; “Variance,” §§ 165-166.
§§ 200-201 FEDERAL EMPLOYERS’ LIABILITY ACT. 414

that the ruling in the Wisconsin cases }® that the neglect to raise the ques-
tion at some time before or during the trial, and at a time when the op-
posing party had a proper opportunity to meet the question by evidence,
was a waiver of an objection that the case falls under the federal act, and
whether the evidence made such a case or not would not be considered on
appeal, is unsound in a case where the evidence shows the act applicable.

The defendant having by answer, motion for a directed verdict, excep-
tion to instructions, motion for arrest of judgment and new trial, called
the court’s attention to the applicability of the federal law, and error in a
submission under the state law, does not waive its right to have the case
tried under the federal law by not submitting instructions on that issue,
when the court had instructed the jury to disregard the count which raised
the issue.17

§ 201. Petition for Writ, Briefs, Assignment of Error, and Bill
of Exceptions.—A petition for appeal or writ of error, accompanied by
the record, is sufficient if it states the case, assigns error, and points out the
decree or judgment complained of. Its brevity is not objectionable18 A
writ of error and citation dated, and in terms “returnable within thirty
days from the date hereof” is sufficient under United States Supreme
Court Rule 8, cl. 5, and there is no necessity to insert a day certain as a
return day.1® But it is not sufficient that a counsel’s brief should cite the
pages in the printed transcript where they allege in their assignment of errors
that these errors have been committed, but they should also point out in
their brief the pages in the bill of exceptions printed in the transcript as
required by the rule and practice of the court, where the proof, if there be
any, of their averment of these errors may be found.?°

In the absence of any assignments of error the omission to plead and
prove that plaintiff's injury occurred in interstate commerce will not be
considered as ground for reversing a judgment.?1_ But the question of ju-
risdiction need not be presented by any assignment of error, as it is the
duty of the appellate court to inquire into the jurisdiction of the court be-
low, 2? and where the jurisdiction depends upon a construction of the

16. Wisconsin ruling considered un-
sound.—Leora v. Minneapolis, etc., R.
Co., 156 Wis. 386, 146 N. W. 520, fol-
lowed in Hanson v. Chicago, etc. R.
Co., 157 Wis. 455, 146 N. W. 524.

17. Same—Waiver by submitting is-
sues under state law.—Bruckshaw v.
Chicago, etc. R. Co. (Iowa), 155 N.
W. 273.

18. Petition for writ, briefs, assign-
ments, and bills of exception.—Easter
v. Virginian R. Co. (W. Va.), 86 S.
E. 3%

19. Sufficiency of designation of re-
turn day in writ of error.—Seaboard,
etc., R. Co. v. Horton, 233 U. S. 492,

58 L. Ed. 1062, 34 S. Ct. 635, Ann. Cas.
1915B, 475.

20. Designation of page in bill where
error to be found.—lIllinois Cent. R.
Co. v. Nelson, 128 C. C. A. 525, 212
Fed. 69. Rule 24, par. 2, subd. 3, 11
C. C. A. Ixxxviii, 47 Fed. xi, 188 Fed.
xvi, 109 C A. xvi; Rule 21 Su-
preme Court, par. 2, subd. 3 (32 Sup.
Ct. x).

21: Failure to show engagement in
interstate commerce.—San Antonio,
etc, R. Co. v. Wagner (U. S.), 36 S
Ct. 626.

22. On jurisdiction of court.—Teel
v. Chesapeake, etc., R. Co., 123 C. C.
a 240, 204 Fed. 918, 47 L. R. A, N,

ny Oda
415 APPEAL AND ERROR. § 201
pleadings, whether or not they state a case under the act, this need not be
supported by a bill of exceptions.?3

Assignments of error not filed at the time of settling the bill of excep-
tions, may be disregarded,?4 also exceptions appearing in the record of
the case on appeal, and not set out in the brief, or in support of which no
reason or argument is stated or cited, are deemed abandoned on appeal.?®

The “practice of filing a large number of assignments cannot be ap-
proved. It perverts the purpose sought to be subserved by the rule re-
quiring any assignments.” “It points to nothing and thwarts the purpose
of the rule” which was intended to present to the court a clear and con-
cise statement of material points on which the plaintiff in error intends
to rely, 26 and in assignments of error to the United States Supreme Court
they should be confined to errors which the court has power to consider.??

It is not neecessary that every matter charged as error should be brought
up by a separate bill of exceptions. All the alleged errors of a trial may be
incorporated into one bill of exceptions.?8

A bill of exceptions should show the grounds of an objection, to deter-
mine its prejudicial effect.29 Thus where a rule governing the duty of
car inspectors was introduced and the record does not show that it was ad-

23. Illinois Cent. R. Co. v. Rogers, of the employers’ lability act, and

136 C. C. A. 530, 221 Fed. 52.

24. Time of assignment.—Pittsburgh,
etc., R. Co. v. Glinn, 135 C. C. A. 46,
219 Fed. 148, 150, under rule 10, Cir-
cuit Court of Appeals (150 Fed. xxvii;
79 C. C. A. xxvit).

25. Abandoned by failure to urge.
—North Carolina—Llioyd v. Southern
R. Co., 166 N. C. 24, 81 S. -E. 1003.

Vermont.—Niles v. Central Vermont
R. Co., 87 Vt. 356, 89 Atl. 629.

Wisconsin—Graber v. Duluth, etc.,
R. Co., 159 Wis. 414, 150 N. W. 489.

A verdict of $10,000 when plaintiff’s
leg was crushed and amputation nec-
essary between the ankle and knee, will
not be disturbed on the court’s own
motion. The point having been saved
below but not urged on appeal in ar-
gument or ‘brief. Graber v. Duluth,
etc., R. Co., 159 Wis. 414, 150 N. W.
489.

26. Numerous assignments not ap-
proved.—Central Vermont R. Co. vw.
White, 238 U. S. 507, 59 L. Ed. 1433,
35 S. Ct. 865.

27. Same—cConfined to questions
subject of review.—Central Vermont
R. Co. v. White, 238 U. S. 507, 59 L.
Ed. 1433, 35 S. Ct. 865.

“Some of the assignments in the
present case relate to matters of plead-
ing; others to the admissibility of evi-
dence, to the sufficiency of exceptions,
and to various rulings of the trial
court which involve no construction

which, therefore, can not be consid-
ered on writ of error from a state
court. Seaboard Air Line Railway v.
Duvall, 225 U. S. 477, 56 L. Ed. 1171,
32 S. Ct. 790.” Central Vermont. R.
Co. v. White, 238 U. S. 507, 59 L. Ed.
1433, 35 S. Ct. 865.

28. Separate bill of exceptions not
necessary.—Lees v. United States, 150
U. S. 476, 37 L. Ed. 1150, 14 S. Ct. 163;
Norfolk, etc., R. Co. v. Holbrook, 131
C. C. A. 621, 215 Fed. 687, reversed on
other grounds in 235 U. S. 625, 35 S.
Ct. 143.

“The sole purpose of bills of excep-
tions and assignments of error is to
bring separately and clearly the mat-
ters complained of before the trial
judge so that he may have the oppor-
tunity to grant relief if he thinks
proper, before counsel for defendant
in error, so that he may be advised of
the precise points to be met in argu-
ment, and before the appellate court,
so that it may readily perceive the
points to be decided and the portions
of the record on which they depend.
Repetition not necessary to these ends
should not incumber the record.”
Norfolk, etc., R. Co. v. Holbrook, 131
C. C. A. 621, 215 Fed. 687, reversed
on other grounds in 235 U. S. 625, 35
S. Ct. 143. ;

29. Bill should show grounds of ob-
jection.— Boston, etc., Railroad v. Ben-
son, 124 C. C. A. 68, 205 Fed. 876.
§§ 201-202 FEDERAL EMPLOYERS’ LIABILITY ACT. 416
vantageous to plaintiff or prejudicial to defendant, and the bill of excep-
tions only shows that it was introduced against defendant’s exceptions but
assigns no reason, such assignment fails to be of any effect.2° And excep-
tions to a failure to submit requested charges, and failure to charge on par-
ticular points, and to the charges given, will not be considered unless the
charges are set out in the bill of exceptions, or incorporated by reference
to the record, 31 and an exception to the admissibility of documentary evi-
dence cannot be considered, where the document to which exception is
taken is not set forth, either literally or in substance, nor is a copy at-
tached to the bill.32

A typewritten copy of the evidence cannot be excluded on motion as
not being properly identified with a bill of exceptions, when the exception
was to the failure of. the court to direct a verdict, and the intention of
counsel and the court was to incorporate the whole evidence, a slip of
paper indicating this being pinned to the bill, but by inadvertence the evi-
dence was filed separately. It appearing in the printed record as the evi-
dence certified and no attack made on the correctness of the copy.®?

§ 202. Necessity of Prejudicial Error.—On appeal the appellant
cannot complain of any error which did not operate to his prejudice.*+
So the fact that the court inaccurately expressed its reason for affirming
a judgment does not give rise to the duty of reversing the judgment when

no reversible error exists.35

80. Boston, etc., Railroad v. Benson,
124 C. C. A. 68, 205 Fed. 876.

31. Same—Refused instructions. —
Lynch v. Central Vermont R. Co.
(Vt.), 95 Atl 683; Niles v. Central
Vermont R..Co., 87 Vt. 356, 89 Atl.
629.

32. Same—Necessity to show objec-
tionable evidence.—Charleston, etc. R
Co. v. Brown, 13 Ga. App. 744, 79 S.
E. 932.

33. Identification of evidence with
bill of exceptions.—Norfolk, etc., R.
Co. v. Holbrook, 131 C. C. A. 621, 215
Fed. 687, reversed on other grounds in
235 U. S. 625, 35 S. Ct. 143.

34. Necessity of prejudicial error.—
Seaboard Air Line Railway v. Moore,
228 U. S. 433, 57 L. Ed. 907, 33 S. Ct.
580; Grand Trunk, etc., R. Co. v. Lind-
say, 120 C. C. A. 166, 201 Fed. 836, af-
firmed in 32 S. Ct. 581.

Requiring election—Though as pre-
viously seen (“Right to Require Elec-
tion,’ § 125) an election is not re-
quired; but should the court hold that
it is necessary, the defendant can not
complain of a failure to require it to
be made which in no way prejudiced
the case. Cincinnati, etc. R. Co. v.
Clarke, 169 Ky. 662, 185 S. W. 94.

And the failure of the court to require the

35. Wrong reason for right ruling.
—lIllinois Cent. R. Co. vw. Nelson, 128
C. C. A. 525, 212 Fed. 69; St. Louis,
etc., R. Co. v. Brown (U. S.), 36 S. Ct.
602.

Rulings on admission of evidence.—
The improper exclusion of evidence
which would show the federal act to
apply is prejudicial error. Carpenter
v. Central Vermont R. Co. (Vt.), 96
Atl. 373.

The error, if any, in admitting evi-
dence that the plaintiff, a switchman,
was capable of running a switch en-
gine, is harmless where there is no
evidence to show the salary of engi-
neers, and the court instructed the
jury not to consider it. Texas, etc.,
R. Co. v. Rasmussen (Tex. Civ. App.),
181 S. W. 212.

The improper admission of immate-
rial evidence is harmless. Arizona,
etc., R. Co. v. Bryan (Ariz.), 157 Pac.
376.

Refusal of view by jury.—The ques-
tion of permitting a view by the jury
is one which addresses itself to the
discretion of the trial judge; and, to
reverse his ruling ‘denying a view, it
must appear that injury resulted to the
417 APPEAL AND ERROR. § 202

defendant to disclose the facts tending to establish the interstate character
of a shipment, the character of a package by which plaintiff was injured
and the date and circumstances of the injury, was not prejudicial to the
plaintiff, when the interstate service does not appear to have been ques-
tioned, and the package, by reason of its falling, had broken open so plain-
tiff could see its contents, and the other facts being equally within plain-
tiff’s knowledge.*¢

The omission of the court to submit to the jury all the issues upon which
the defendant might be liable is not prejudicial to the defendant.37 Nor
is it prejudicial to refuse an instruction as to the legal results that would
follow a finding of certain facts, when the jury found specially negativing
those facts.28 Nor can the action of the trial court in striking out the special
defenses pleaded by the defendant be assigned as prejudicial error,
where under the general denial the defendant was at liberty to show all
that had been averred in the special defenses.39

In cases where there is no substantial evidence to sustain a verdict that
the plaintiff assumed the risk of his injury or that he was guilty of con-
tributory negligence, this satisfies that the alleged errors in the rulings of
the court on these subjects, did not prejudice and could not have preju-
diced the defendant, whether they were made upon questions regarding
the pleadings, upon the admission or exclusion of evidence, in the charge
of the court, or in its refusal of requested instructions.°

As a rule of law an employee may continue in his employment with
knowledge of a defect when he has complained and received a promise
that the same will be repaired, if the danger is not so immediately threaten-
ing that no ordinarily prudent man would remain at work under the cir-
cumstances ; and it is not error where the jury were told, in substance, that if
they found that the absence of an appliance was known to the plaintiff,
and he reported the defect and was given a promise to repair and if he

party applying therefor. Atlantic, etc., It is not error of which the defend-

. Co. v. Whitney, 65 Fla. 72, 61 So.
179. See ante, “Admissibility of Evi-
dence,” §§ 150-159.

86. Failure to require disclosure by
defendant.—Hubert v. New York, etc.,
R. Co. (Conn.), 96 Atl. 967.

37. Omission of one issue of liabil-
ity—Moore v. St. Joseph, etc., R. Co.
(Mo.), 186 S. W. 1035.

38. Refusal of instructions——Kana-
wha, etc, R. Co. vw. Kerse, 239 U. S.
576, 836 S. Ct. 174.

39. Striking special defenses.—San
Antonio, etc, R. Co. v. Wagner (U.
S.), 36S. Ct. 626. ;

40. Rulings on contributory _negli-
gence and assumption of risk.—IIlinois
Cent. R. Co. v. Nelson, 128 Cc. C. A.
525, 212 Fed. 69. See also, Riley v.
Minneapolis, etc. R. Co. (Minn.), 156
N. W. 272.

Fed Act—27

ant can complain, where the court sub-
mits the issue of assumption of risk to
the jury in an action where the safety
appliance act was violated. Clark v.
Erie R. Co. (D. C.), 230 Fed. 478.

“We would reverse this case except
for the fact’ that there is no evidence
that the appellee was guilty of any
contributory negligence, and_ there-
fore no instruction on the subject
should have been given. If there was
no place in the case for an instruction
on contributory negligence and no evi-
dence on which to base an instruction
on this subject, it is manifest that the
giving of an imperfect instruction
could not have prejudiced the rights
of the company.” Chesapeake, etc., R.
Co. v. Cooper, 168 Ky. 137, 181 S. W.
933.
FEDERAL EMPLOYERS’ LIABILITY ACT. 418

§ 202
knew and appreciated the danger which was so obvious that a man of ordi-
nary prudence would not have continued in the employment then the
plaintiff assumed the risk, was unduly favorable to the defendant in this:
(1) that it omitted to state that in order to qualify plaintiff's right to
rely upon the promise of reparation the danger must be imminent as well
as obvious; (2) in characterizing his conduct as one of assumed risk
rather than of contributory negligence. The courts not being in agree-
ment as to whether such facts constituted assumption of risk or contributory
negligence.41_ However, should the jury base its finding on two grounds
of negligence for one of which the defendant is responsible and for the
other not, it cannot be contended that, as the verdict was proper on one of
these grounds, the fact that the jury based its finding on an insufficient
ground was not prejudicial. But as in cases under this act the contribu-
tory negligence of the plaintiff is a factor in the damages and in compar-
ing the negligence of the decedent and the carrier the jury may have con-
cluded that because plaintiff was negligent in one particular, while the
carrier was negligent in two particulars, the negligence of the carrier was
much greater than that of decedent, and the carrier should therefore be
required to bear the greater part of the entire loss. Where, therefore, the
amount of the verdict necessarily depends on the amount of negligence
attributable to the carrier, a finding based on negligence not authorized by
law is prejudicial, even though based on another and sufficient ground.t2
If, the defendant has had all rights to which he was entitled under the
act, it is no ground to complain of a failure to state that the action was
brought thereunder.43 As the trial of a case under the state law when the
federal law is applicable or vice versa, is not in itself prejudicial.44 And

41. Seaboard, etc., Railway v. Hor-
ton (U. 8.), 36 S. Ct. 180.

42. Finding based on two grounds,
and defendant liable only on one.—
Louisville, etc, R. Co. v. Heinig, 162
Ky. 14, 171 S. W. 853.

43. Failure to state action brought
under act—MclIntosh v. St. Louis,
etc., R. Co., 182 Mo. App. 288, 168 S.
W. 821.

“After the defendant has proceeded
to trial on its answer and been allowed
to prove the facts which make the case
governed by the federal statute and
having been accorded all the rights
and defenses coming to it under that
act, the judgment is good after ver-
dict, and to reverse same would be in
the teeth of our statute (§ 2082) for-
bidding us to reverse a case unless
there be error affecting the merits of
the action.” McIntosh v. St. Louis,
etc., R. Co., 182 Mo. App. 288, 168 S.
W. 821.

44. Trial under law not applicable.
—United States—lIllinois Cent. R.° Co.

v. Nelson, 128 C. C. A. 525, 212 Fed.
69; Chicago, etc. R. Co. v. Gray, 237
U. S. 399, 59 L. Ed. 1018, 35 S. Ct.
620; Kansas, etc., R. Co. v. McAdow,
240 U. S. 51, 36 S. Ct. 282.

Indiana.—Southern R. Co. v. How-
erton, 182 Ind. 208, 105 N. E. 1025, 106
N. E. 369, reversing 101 N. E. 121;
Chicago, etc., R. Co. uv. Steele (Ind.),
108 N. E. 4.

Missowri—Pipes v. Missouri Pac. R.
Co. (Mo.), 184 S. W. 79.

North Carolina—Sears v. Atlantic,
etc., R. Co., 169 N. C. 446, 86 S. E. 176.

Texas—Galveston, etc, R. Co. v.
Kurtz (Tex. Civ. App.), 147 S. W. 658,
writ of error denied in 150 S. W. xix,
106 Tex. 627, no op.; Atchison, etc., R.
Co. v. Tack (Tex. Civ. App.), 130 S.
W. 596, writ of error denied in 104
Tex. 678, no op.; Chicago, etc., R. Co.
v. Trout (Tex. Civ. App.), 152 S. W.
1137, writ of error granted in 156 S.
W. xvi, no op.

Wisconsin—Graber v. Duluth, etc.,
R. Co., 159 Wis. 414, 150 N. W. 489.
419 APPEAL AND ERROR. § 202

where, in an action against a 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 act and under the state laws, and no question of juris-
diction is involved, it is immaterial whether the action, trial, and judgment
are had under the federal law or under the state law.45 And under such
circumstances it is unnecessary to decide which law should have been ap-
plied.#® And where evidence was offered by the railroad company to show
that plaintiff was engaged in interstate commerce, so as to make the federal
act applicable but rejected by the court, if erroneous, is not sufficient to
justify a reversal where it is not perceptible “that there is any difference
that made the railway company’s position worse if tried on the hypothesis
that the state law governed.” 47

Where the only particular in which defendant claims to have sustained
injury is that the laws of Texas, by which the case was tried, did not per-
mit the jury to apportion the loss between the parties, but required that
one or the other should bear the entire burden, but the court charged the
jury to find outright for the defendant if plaintiff was guilty of negligence
causing or contributing to his injury, also to find for the defendant if de-
fendant was not guilty of negligence, and the jury having found for the
plaintiff the finding must have been that the defendant was guilty of neg-
ligence and that plaintiff was guilty of no negligence. Therefore it is not
seen that the result would have been any different, had the rule of the
federal act been applied#8 Nor is there prejudicial error of which the
defendant can complain where the court submits the case to the jury under
a state law, when the federal law is applicable, and the only difference be-
tween the two is that regarding contributory negligence which under the
state law diminishes the damage proportionally only when the employee’s
negligence is slight and the employer’s negligence-gross, but in other cases
it operates to bar a recovery the same as at common law, this being more
favorable to the defendant than the rule under the federal act which never
operates to bar an action but diminishes the recovery in all cases, except
when a statute is violated, and then is not applicable at all.49

The fact that a recovery was in the name of the executrix, as authorized
and required by the federal act, instead of in the name of the surviving

45. Illinois Cent. R. Co. v. Nelson,
128 C. C. A. 525, 212 Fed. 69.

In Cole v. Atchison, etc., R. Co., 92
Kan. 132, 139 Pac. 1177, it is held that
the failure to submit a case properly
coming under the act, but the appli-
cation of the state law was not preju-
dicial error when the laws are substan-
tially the same and the evidence of-
fered was pertinent to the issue as
originally drawn under the federal law.
The case, however, was reversed on
other grounds.

46. Kansas, etc., R. Co. v. McAdow,
240 U. S. 51, 36 S. Ct. 252.

47. Chicago, etc., R. Co. v. Gray, 237
U. S. 399, 59 L. Ed. 1018, 35 S. Ct.
620.

48. Same—Effect of different rules
of contributory negligence—dAtchison,
etc., R. Co. wu. Tack (Tex. Civ. App.),

130 S. W. 596, writ of error denied in
104 Tex. 678, no op. (Under act of
1906.)

49. Chicago, etc., R. Co. v. Wright,
239 U. S. 548, 36 S. Ct. 185.
§ 202 FEDERAL EMPLOYERS LIABILITY ACT. 420

wife, children, and parent of the deceased, as required under a state stat-
ute, is not material where the verdict and judgment specifies the particular
amounts to which the wife, children, and surviving parent were entitled,
both statutes alike requiring the action to be brought for the benefit of
the persons named.5°

But if under the law applied, a party is denied some right to which he
would have been entitled under the proper law, this is prejudicial necessi-
tating a reversal.5!_ So a case tried under a state law will not be affirmed
as one arising under the federal act when the court is not satisfied from
the state of the record that a correct result was reached upon the merits
of the cause; and the action not being brought and tried under the act,
the facts upon the trial were not developed sufficiently for the court to say
that appellant and appellee’s decedent were engaged in interstate com-
merce at the time of the injury.52 And the submission of a case under the
federal act will not be held harmless where the state and federal laws in
regard to negligence and contributory negligence are not the same. Thus
the submission of a case permitting a recovery for ordinary negligence under
the federal act and a diminution of damages for contributory negligence could
not be affirmed where the state statute requires gross negligence in order
to recover for the acts of a foreman and contributory negligence is a com-
plete bar to the action.58

If sufficient facts are undisputed to bring the case within the federal
act, the jury have nothing to do with the question, and the court could
properly have given a peremptory instruction thereon. The fact that it
failed to do so, and that in an instruction submitted the question to the
jury, could not be prejudicial to the defendant. The finding of the jury
could not be more adverse to the defendant than the peremptory instruc-
tion would have been.54

50. Same—Different parties to bring
action—Ft. Worth, etc, R. Co. w.
Jones (Tex. Civ. App.), 182 S. W. 1184.

As previously seen when treating of
the parties entitled to sue it is a gen-
eral principle of law that when a stat-
ute designates by whom the action
shall be brought if not brought in the
name or by such a party, no recovery
can be had. So this holding of the
Texas court, while entirely proper in
the construction of its own laws, would
not be true when applied to an action
under the federal Act, for as to such
actions the decisions of the Supreme
Court of the United States are uniform
and authoritative in holding that the
recovery can only be had in the name
of the person designated by the stat-
ute, that is, the personal representa-
tive. See ante, “Parties Entitled to
Sue,” Chap. XIII.

51. Same—When considered preju-
dicial— Louisville, etc., R. Co. v. Car-

ter (Ala.), 70 So. 655; Chicago, etc., R.
Co. v. Steele (Ind.), 108 N. E. 4.

Under an Indiana statute (Burns
1908, § 700), which provides that a
judgment shall not be reversed where
it appears that the case has been fairly
tried on its merits, an action which has :
been tried under the federal act which
is found on appeal not to apply to a
case, will be reversed where the de-
fense of contributory negligence is not
so stated in the court’s instructions as
to give the defendant his full rights in
respect thereto. Chicago, etc., R. Co.
v. Steele (Ind.), 108 N. E. 4.

52. Chicago, etc., R. Co. v. Mitchell
(Ind. App.), 110 N. E. 78.

53. Illinois Cent. R. Co. v. Kelly,
167 Ky. 745, 181 S. W. 375.

54. Submission to jury of question
justifying directed verdict.—Pelton v.
Illinois Cent. R. Co., 171 Iowa 91, 150
N. W. 236.
421 APPEAL AND ERROR. §§ 202-203

In a case involving only two issues—negligence and interstate com-
merce—and on submission to the jury they were told that there could be
no finding of negligence unless they found the parties engaged in interstate
commerce, and they found for the defendant, fairness to the plaintiff re-
quires a presumption that they found against him on the issue of interstate
commerce.®®

The defendant cannot complain where the court instructed that, if 9 or
more of the jurors agreed upon a verdict, they could return the same
into court, but it would then be necessary for each juror, if less than 12 of
their number agreed, to sign it; but, if 12 jurors agreed on a verdict, then
the law requires it to be signed by their foreman alone; but the record dis-
closes that the verdict was returned by the 12 jurors, and signed by the
foreman alone.®%

§ 203. Changing Theory of Case on Appeal.—In connection with
the law to govern the case, comes the right of a party who has tried the case
under one theory or law to change on appeal and ask a reversal upon an-
other or inconsistent theory. The mere acquiescence alone in the trial
of the case as brought does not bind a defendant to that theory of the case.5*
But where a particular theory is admitted, ®* or, not only no objection is
made,®® but, on the contrary, it is insisted at every stage of the proceeding,
that the cause was one arising under the law by which it was tried,
therefore, even if it was error, the defendant having invited it, and in-

55. Presumption of prejudice.—Boyle
v. Pennsylvania R. Co. (D. C.), 221
Fed. 453.

56. Directing return of verdict by
less than 12 jurors.—<rizona, etc., R.
Co. v. Bryan (Ariz.), 157 Pac. 376, 381.
As to the validity of such a verdict,
see ante, “Competency of Jurisdiction
as Affected by Constitution of Jury or
Verdict Not Unanimous,” § 111.

57. Changing theory of case on ap-
peal.—St. Louis, etc., R. Co. v. Snow-
den (Okla.), 149 Pac. 1083.

“The pleadings and the evidence in
this case showing that the law of the
case is the Federal Employers’ Lia-
bility Act, the error of the court in
applying the constitutional and statu-
tory provisions of this state to the case
did not change the law of the case,
even if said federal act was not pressed
at the trial; and hence the rule
adopted by this court (Checotah vw.
Hardridge, 31 Okla. 742, 123 Pac. 846,
and authorities there cited), that one
who tries a case below on a theory that
one law applies, will not be allowed,
on appeal, to insist that another law is
applicable to the case, and such rule
can not be invoked in this case, as to
do so would be to charge to the liti-
gant the want of information by, and

the wrongful ruling of, the court.” St.
Louis, etc., R. Co. v. Snowden (Okla.),
149 Pac. 1083, 1085.

58. Same—Contributory negligence.
—And where both parties try a case
upon the theory that contributory neg-
ligence was not an issue, they will be

held to that theory on appeal. De-
ae uv. Roberts (Mo. App.), 182 S.
« BEd

59. Same—Theory advanced or ad-
mitted by party complaining.—Smith
v. Northern Pac. R. Co., 79 Wash. 448,
140 Pac. 685. /

The defendant will not be permitted
to raise the question when “it appears
from the record that the court in its
oral charge to the jury stated that
there was no dispute or controversy
between the parties that defendant and
the plaintiff were engaged in interstate
commerce at the time of the injury,
and that they need spend no time ‘on
questions which both sides admit.’ No
objection or exception was taken to
this portion of the charge, which seems
to have been repeated in substance. It
would therefore appear that the trial
was had upon that theory of the case.”
Alabama, etc., R. Co. v. Skotzy (Ala.),
71 So. 335, 336.
§§ 203-204 FEDERAL EMPLOYERS’ LIABILITY ACT. 422

duced the court to commit it, it cannot afterwards be heard to complain.®
And where under the pleading and proof in a case, it appeared that the de-
fendants were engaged in interstate commerce, and that the plaintiff was
employed by them in such commerce when injured, so a state statute on
assumed risk did not control the question of assumed risk, but that ques-
tion was controlled by the act of congress; and the defendant filed a first
supplemental petition, denying that the act of congress had any applica-
tion whatever to the occurrence and transaction involved in the suit, and
pleaded that the laws of the territory of New Mexico should control the
rights of the parties, and the trial court agreed with defendants in their
contention and ignored the federal statute, defendants cannot be heard to
complain of the error, if any, committed by the court. In Chicago, etc.,
R. Co. v. Trout (Tex. Civ. App.), 152 5. W. 1137, 1139, writ of error
granted in 156 S. W. xvi, no op., the court said:

“We are not called upon to here discuss the question as to whether the
rights of the parties should be governed by the federal statute or the
laws of New Mexico; but since appellants invited the error they now
complain of we cannot afford to entertain their complaint. They did
not plead the assumed risk statute of New Mexico, if any existed, nor
was any proven, but the charge of the court seems to be framed under
the Texas Rule. * * * The trial court, following the suggestion
of appellants, tried the case according to the laws of New Mexico,
and gave appellants the benefit of the fellow servants’ doctrine of
contributory negligence as a complete defense, to which they were not
entitled under the federal act, and now it would be a violation of
every principle of right to permit them to successfully contend here
that the federal act applied to the facts in their case.”

The asking and giving of an instruction on the federal act in accordance
with a prior wrongful construction, on which theory the case was tried,
did not irrevocably commit the party asking the same to that view of the
case, so as to preclude him from changing after the United States Supreme
Court had placed another construction thereon.!

§ 204. Presumption on Appeal.—Where the question of assumed
risk was not requested to be submitted to the jury, and the verdict is for
plaintiff, it is presumed on appeal to be found in favor of plaintiff.c? And
where an action is tried under a siate statute in which neither the complaint
nor the answer allege any fact which would make the federal law applica-
ble and on cross-examination of one of plaintiff’s witnesses the fact is
brought out that some of the cars in the train, upon which the deceased was
an engineer, were engaged in interstate commerce and the trial court de-
nied a motion to dismiss which the Appellate Court unanimously affirmed,

60. Illinois Cent. R. Co. v. Egan, 122 62. Presumption on appeal.—Sweet
C. C. A. 239, 203 Fed. 937. v. Chicago, etc., R. Co., 157 Wis. 400,
61. Asking instruction as binding to 147 N. W. 1054, under Wis. Stats. 1913,
theory of case.—Patry v. Chicago, etc. § 3072m.
R. Co., 265 Ill. 310, 106 N. E. 843.
423 APPEAL AND ERROR. §§ 204-205
the court of appeals being required to presume where there has been a
unanimous affirmance below that the evidence sustains the verdict, it would
be presumed if necessary to uphold the verdict that the deceased was found
to have been engaged in intrastate commerce exclusively.“ In actions un-
der this act, contributory negligence not being a bar, but being proper for
consideration in the reduction of damages, the court will assume, when the
ground of the motion for new trial is inadequacy of damages given under
the influence of passion or prejudice, that the jury found the plaintiff
guilty of contributory negligence and reduced the damages.*4

§ 205. Parties on Appeal.—Where the action upon which issue was
joined in the court below was against two defendants (railroad com-
panies), proceedings in error cannot be prosecuted against one only of
such defendants.6*° But the failure to make a joint defendant a party on
appeal may be cured by amendment of the writ of error and issuance of
new citation.%6

Where an action is brought by the surviving wife, instead of by the
personal representative of a deceased railway employee, to recover dam-
ages, recoverable, if at all, under the authority of the federal act, and
where, after submission on appeal, an application is made on behalf of
said wife (who claims to have been appointed administratrix of her hus-
band’s estate by the court of another state, subsequent to the trial below)
to be made a party in her alleged representative capacity, and where, in
opposition thereto, plaintiff in error put in issue by sworn denial both the
plaintiff’s right to and appointment as administratrix, and there being no
one before the court having a right of action, the court cannot hear and
determine the question of fact presented, or further consider the applica-
tion, but will remand the case, without prejudice to such rights as the al-
leged personal representative may have.®* In Missouri, etc., R. Co. v.
Lenahan, 39 Okla. 283, 135 Pac. 383, the court said:

“We have given the application to make the subsequently appointed ad-
ministratrix a party, careful and painstaking consideration and have
been unable to find any reported cases where, under a like or similar

63. Tyndall 7. New York Cent., etc., 65. Prosecution of appeal against

R. Co., 213 N. Y. 691, 107 N. E. 577,
affirming 146 N. Y. S. 1115, 162 App.
Div. 920, under New York Const., art.
6, § 9, Code Civ. Proc. § 191, subd. 4.

See, also, San Antonio, etc., R. Co. v.
Wagner (U. S.), 36 S. Ct. 626, where
the omission of the record to show
that the plaintiff was engaged in in-
terstate commerce was presumed to be
an oversight.

64. That inadequate damages re-
sulted from contributory negligence.—
Burke v. Chicago, ete, R. Co. 131
Minn. 209, 154 N. W. 960.

one of two parties.—Teel v. Chesa-
peake, etc, R. Co. 123 C. C. A. 210,
204 Fed. 914.

66. Same—Right to amend to bring
up other party.—Teel v. Chesapeake,
etc., R. Co. 123 C. C. A. 210, 204 Fed.
914.

67. Right to change of party on ap-
peal—Widow to administrator.—Mis-
souri, etc., R. Co. v. Lenahan, 39 Okla.

283, 135 Pac. 383.
§§ 205-206 FEDERAL, EMPLOYERS’ LIABILITY ACT. 424

state of facts, the right to make new parties on appeal was permitted.
There are a number of well-considered cases which permit the right
of substitution in the trial court of the party having the legal right
to sue on the claim for which the action has been brought. * * *
But where, subsequent to the trial below, the plaintiff therein had ac-
quired a representative capacity, and where all the facts in connec-
tion therewith were put in issue and duly verified by the oath of the
agent or attorney for plaintiff in error, we find and have been cited
to no authority permitting substitution or addition of new parties on
appeal. Both the right of the plaintiff, as well as the alleged fact of
her appointment as administratrix, have been at the first possible op-
portunity put in issue. Plaintiff may or may not now be the admin-
istratrix of her late husband’s estate. We are unable to determine
from the conflicting affidavits. * * * This fact, recently attempted
to be brought into the record, is one that the defendant company had
a right to controvert, and has a right to have tried and determined,
for it is material to its defense, if liable, that the proper party re-
cover, that it may not be subject to a double liability. As we have
seen, its primary defense in this court was that the original plaintiff
could not maintain her action. The right to sue is one that lies at the
foundation of every action at law as well as suit in equity; and, where
a delayed effort is made to amend or substitute new parties, no de-
fendant can be denied the right of an opportunity to be heard as to
the newly acquired rights thus asserted for the first time. Were no
question presented to us save the naked legal proposition of the right
to substitute or make new parties pending an appeal, and the facts
connected therewith were admitted, we would be greatly disposed to
grant the motion. * * * While in given instances this court has
original jurisdiction, in the instant case it can exercise only its appel-
late jurisdiction. It is provided by statute (§ 6067, Comp. Laws 1909)
that ‘the supreme court may reverse, vacate or modify a judgment of
the district court or county court for errors appearing on the record.’
The question presented is not one that seeks, in any manner, to have
reviewed a judgment or order of the district court of Craig county,
but to authorize the bringing in of an additional party under author-
ity alleged to have been acquired subsequent to the trial below, where,
as we have seen, no proper party was theretofore before the court.”

§ 206. Former Opinion as Law of Case.—lIt is well settled that
whatever has been decided on one writ of error cannot be re-examined on
a subsequent writ brought in the same suit.68 * So where the facts on the
retrial of a case were practically the same as in the former trial, and on a
former appeal it was held to be error to grant a nonsuit on the case made
out, this certainly became the law of this case, and res adjudicata as to
the points and question when subsequently presented.6® But should the
evidence upon a second trial be radically different from that of the first,

68. Former opinion as law of case 24 L. Ed. 260; Bell v. Arledge, 135 C.
—On second appeal.—Woodruff v. Ya- C. A. 347, 219 Fed. 675.
zoo, etc., R. Co., 137 C. C. A. 567, 222 69. Cincinnati, etc., R. Co. v. Goode,
Fed. 29, citing Clark v. Keith, 106 U. 169 Ky. 102, 183 S. W. 264; Mims vw.
S. 464, 465, 27 L. Ed. 302, 1 S. Ct. 568; Atlantic, etc., R. Co., 100 S. C. 375, 85
Supervisors v. Kennicott, 94 U. S. 498, S. E. 372.
425 APPEAL AND ERROR. §§ 206-207
the opinion of the former is not binding on the court below.’°

The holding on a former appeal that it did not conclusively appear that
plaintiff had no cause of action, and that the circumstances did not require
that judgment be directed for the defendant notwithstanding the verdict,
is not res judicata; but when there has been another trial, and no better
case has been made, and it appears that no better case can be made; such
circumstances require a holding that it conclusively appears that plaintiff
has no cause of action, and that defendant is entitled to judgment ending
the litigation.7!

A decision on appeal where the state law is applied, does not control an
action which upon remand was tried under the federal act.7?

§ 207. Questions Proper for Review.??—To grant or refuse a new
trial rests in the sound discretion of the court, and its action respecting the
same cannot be made the subject of reversal upon a writ of error.74 The
correction of an excessive verdict is a question for the trial court on a
motion for a new trial, the granting or refusing of which will not be re-
viewed by the federal appellate courts.7%

So, too, it cannot be urged on appeal that damages should be reduced on
account of contributory negligence this being a question for the jury.7°

When the evidence is conflicting, the court cannot reverse a judgment,
unless it appears that the jury were influenced by bias, prejudice, or other
improper motive,77 or that the verdict on the evidence was manifestly
wrong.78

The refusal to direct a verdict for the defendant necessitates a review
of the evidence, considered in the most favorable aspect to plaintiff.79

In a case where the defendant is not shown to have been negligent, and
hence not liable, the question ‘of whether the court erred in applying the
state law to the case will not be considered.®°

Where a verdict has been returned by the jury, it is within the province
of the trial court alone to set it aside in whole or in part, and it may not

70. Louisville, etc., R. Co. v. Stew-
art, 163 Ky. 823, 174 S. W. 744.

71. Marshall v. Chicago, etc., R. Co.,
131 Minn. 392, 155 N. W. 208.

72. Easter v. Virginian R. Co. (W.
Va.), 86 S. E. 37. 8

73. Questions proper for review.—
On appeal from State to United States
Supreme Court, see post, “Extent of
Review,” § 212.

74, Refusal of new trial—Spokane,
etc., R. Co. v. Campbell, 133 C. C. A.
370, 217 Fed. 518. :

75. Same—For excessive verdict.
Chesapeake, etc., R. Co. v. Proffitt, 133
C. C. A. 37, 218 Fed. 23. ;

76. Reducing damages for contribu-
tory mnegligence——Hackney v. Mis-
souri, etc. R. Co., 96 Kan. 30, 149 Pac.
421.

77. Of findings on evidence.—Atlan-
tic, etc., R. Co. v. Whitney, 65 Fla. 72,
61 So. 179; Donaldson v. Great North-
ern R. Co. (Wash.), 154 Pac. 133. See
also, Moore v. St. Joseph, etc., R. Co.
(Mo.), 186 S. W. 1035.

78. Texas, etc, R. Co. v. Siewert
(Tex. Civ. App.), 163 S. W. 624, writ
of error dismissed in 165 S. W. xvi,
no op. ‘

79. Hawkins v. St. Louis, etc. R.
Co., 189 Mo. App. 201, 174 S. W. 129,
citing Myers v. Pittsburgh Coal Co.,
233 U. S. 184, 58 L. Ed. 906, 34 S. Ct.
559.

80. Law governing case when de-
fendant liable under neither.—Chesa-
peake, etc., Railway v. Shiflett (Va.),
86 S. E. 860. °
§§ 207-208 FEDERAL EMPLOYERS’ LIABILITY ACT. 426
be done only upon the agreement of the parties, without the consent of
the court. Hence, an offer of agreement of one party made to the un-
successful one, that the verdict be set aside on a certain issue, is held to be
ineffectual on appeal to prevent the appellee having a new trial on that
issue for errors of law committed in the trial court, or having alleged er-

rors committed on the other issues passed upon on appeal.®4

§§ 208-212. Appeals Peculiar to Particular Courts—§ 208.
From Lower Federal Court to Supreme Court.—That the constitu-
tionality of the federal act was drawn in question by the plaintiff in error
in the lower court affords ground for taking the case directly to the Su-
preme Court of the United States.82 And if a writ of error is allowed on
the constitutionality of the act being questioned, but such questions are
determined prior to a consideration of the case, it will not therefore be
dismissed, the constitutionality not being foreclosed when the writ was
allowed there is still jurisdiction to consider other assignments of error.§§

An appeal also may be had direct from the district court to the United
States Supreme Court when the jurisdiction of the lower court is in issue.
But there is no basis for such a direct writ of error upon a certificate that
the court’s decision was given upon a jurisdictional ground, where the
trial resulted in a judgment of compulsory nonsuit, because the evidence
produced did not disclose that the plaintiff at the time of his injuries was
engaged in interstate commerce. The power of the court to hear and
determine the case was unquestioned and there was no holding of the
court that it was without jurisdiction. On the contrary, it proceeded to
hear and determine the case, decided that the plaintiff could not recover
because an element of his asserted cause of action was without evidence to
sustain it.84 If the claim of the plaintiff is dismissed because the bene-
ficiaries are alien citizens, this presents a question of their right to re-
cover under a treaty, and reviewable on appeal to the United States Su-
preme Court.85

81. Agreement of parties affecting
right to review.—Kenney wv. Seaboard,
etc., R. Co., 165 N. C. 99, 80S. E. 1078.

82. From lower federal court to Su-
preme Court—Constitutional question.
—Michigan Cent. R. Co. v. Vreeland,
2a7 U. S. 59, 57 L. Ed. 417, 33 S. Ct.
192, Ann. Cas. 1914C, 176.

83. Same—Decision of constitutional
question pending appeal as ground for
dismissal. Michigan Cent. R. Co. v.
Vreeland, 227 U. S. 59, 57 L. Ed. 417,
33 S. Ct. 192, Ann. Cas. 1914C, 176;
Norfolk, etc, R. Co. v. Earnest, 229
U. S. 114, 57 L. Ed. 1096, 33 S. Ct.
654, Ann. Cas. 1914C, 172.

84. Appeal on jurisdictional ground.
—Farrugia v. Philadelphia, etc, R.
Co., 233 U. S. 352, 58 L. Ed. 996, 34
S. Ct. 591.

85. Review on construction of treaty.
—McGovern v. Philadelphia, etc., kK.
Co., 235 U. S. 389, 59 L. Ed. 283, 35
S. Ct. 127.

“Tt is suggested rather than urged
that the case is not properly here on
direct appeal. But the right of direct
appeal is based on the ground, among
others, that the construction and ap-
plication of the treaty between the
United States and Great Britain and
Ireland are involved in the case, the
favored-nation clause of which gives
the residents and citizens of Great
Britain and Ireland the same rights as
those of Italy, and that by a treaty
between the latter and the United
States its citizens are entitled to ex-
actly the same rights as citizens of
this country in the courts of this coun-
427 APPEAL, AND ERROR. § 209

§ 209. From the Circuit Court of Appeals.—There is a right to a
writ of error from the Federal Supreme Court to review the judgment of
the circuit court of appeals, such judgment not being final when the ac-
tion is founded under the federal act, and not dependent entirely on the
diversity of citizenship, and the amount in controversy, exceeding $1,000.%°
It is well settled that, in order to review the judgment of the circuit court
of appeals, jurisdiction in the district court must not have rested upon
diverse citizenship alone, but that jurisdiction must in part, at least, have
arisen because of averments showing a cause of action under the constitu-
tion or laws of the United States; and in order to come to the supreme
court by writ of error to the circuit court of appeals such allegations of
Federal right must be found in the complaint.87

The Federal Supreme Court will not scrutinize for error but only de-
termine if plain error was committed in particulars complained of.88 The
mere fact that a case is based on the act, when there is presented for de-
cision no question concerning its interpretation, but all the questions which
require decisions merely involve considerations of general law, depending
in no sense upon the particular significance of the act, only requires an
examination of the record to determine whether plain error was com-
mitted.8% In Southern R. Co. v. Gadd, 233 U. S. 572, 58 L. Ed. 1099, 34
S. Ct. 696, the court said:

“In Chicago Junction R. Co. v. King, 222 U. S. 222, 56 L. Ed. 173, 32
S. Ct. 79, it was held that as the pleadings in that case based the right
to recover upon an act of congress, the safety appliance lw, there
was power in this court to review the judgment of a circuit court of
appeals,—an authority which carried with it the duty to consider and
pass upon all questions for decision in the case, even although they
might not concern the interpretation of the act of congress upon
which the suit was based. But while thus ruling, it was nevertheless
declared that, as questions of common-law negligence not involving
the interpretation of the statute fell within the classes of questions
which, under the distribution of judicial power made by the act of

try, although the citizens of Italy may
be residing abroad. In its first opinion
in the case the district court discussed
at length the question arising upon
the treaty, and held adversely to plain-
tiff. We must presume, therefore, that
the court considered the treatise as ele-
ments in its decision upon the right of
McGovern to recover for the benefit
of the parents of the deceased. This
court, therefore, has jurisdiction.”
McGovern v. Philadelphia, etc., R. Co.,
235 U. S..389, 59 L. Ed. 283, 35 Si Gt.
127.

86. From Circuit Court of Appeals—
Amount of controversy. — Missouri,
etc, R. Co. v. Wulf, 226 U. S. 570, 57
L. Ed. 355, 33 S. Ct. 135, Ann. Cas.
1914B, 134.

87. Federal controversy.—Delaware,
etc. R. Co. v. Yurkonis, 238 U. S. 439.
59 L. Ed. 1397, 35 S. Ct. 902.

88. Extent of review on appeal.—
Chicago Junction R. Co. v. King, 222
U. S. 222, 56 L. Ed. 173, 32 S. Ct. 79;
Grand Trunk, etc., R. Co. v. Lindsay,
233 U. S. 42, 58 L. Ed. 838, 34 S. Ct.
581, Ann. Cas. 1914C, 168; Seaboard
Air Line Railway v. Moore, 228 U. S.
433, 57 L. Ed. 907, 33 S. Ct. 580; South-
ern R. Co. zw. Gadd, 233 U. §. 572, 58
L. Ed. 1099, 34 S. Ct. 696.

89. Yazoo, etc. R. Co. v. Wright,
235 U. S. 376, 59 L. Ed. 277, 35 S. Ct.
130; Southern R. Co. 7. Gadd, 233 U.
S. 572, 58 L. Ed. 1099, 34 S. Ct. 696.
§§ 209-210 FEDERAL EMPLOYERS LIABILITY ACT. 428

1891 [26 Stat. at L. 826, chap. 517. U. S. Comp. Stat. 1901, p. 488]
(re-expressed in the Judicial Code) were determinable by the circuit
court of appeals in last resort, where such questions were brought
here from a circuit court of appeals because they arose in a suit under
the statute, and which for that reason alone could come here, whilst
considering we would not reverse as to such questions unless it clearly
appeared that error had been committed. Besides establishing this
rule, it was further said that, in disposing of such questions, we would
not feel it our duty to re-state the case and reexpound the principles
applicable to its decision below, but would, as a general rule, leave
those subjects where the circuit court of appeals had left them, and
would hence content ourselves with merely expressing our ultimate
conviction of the case as formed after an adequate examination of
the record. The principles announced in the King Case were sub-
sequently expressly reiterated and applied in Seaboard Air Line Rail-
way v. Moore, 228 U. S. 433, 57 L. Ed. 907, 33 S. Ct. 580, and Chi-
cago, etc., R. ‘Co. v. Brown, 229 U. S. 317, 57 L. Ed. 1204, 33 S. Ct.
840, 3 N. C. C. A. 826. And in both of these latter cases it was rec-
ognized that the ruling in the King Case was equally applicable to
cases brought here from the circuit court of appeals on the ground
that the relief sought was based on the Employers’ Liability Act
where the cause of action arose since the adoption of the Judicial

Code.”

Thus an asserted error of the circuit court of appeals in holding that the
federal law abolished, as to all cases coming under its provisions, the de-
fense of assumption of risk and also, that a railroad employee injured in
the course of his employment could avail of the benefits of the statute, al-
though at the time he sustained the injury, he was not actually engaged in
interstate commerce, is not error when the benefit of assumption of risk
was accorded the defendant company at the trial, plaintiff’s right to recover
was conditioned upon his establishing that he was engaged in interstate
commerce at the time of his injury, and the evidence showed both parties
to have been so engaged.

A request by the defendant for a peremptory instruction, taking the case
from the jury, will not be sufficient to show that questions involving the
meaning of the act arose, when in view of the state of proof the request
was so unsubstantial and frivolous as to be absolutely devoid of merit.%
Neither will an assignment that the court below held that the act abolished
the defense of assumed risk, be sufficient to determine its construction on
appeal, when assumed risk was not involved in the case, the court did not
charge thereon, and the statement was made in answer to counsel’s objec-
tion to a charge for not embracing assumption of risk.2

§ 210. From Court of Appeals in District of Columbia.—The
right to review a decision of the court of appeals of the District of Colum-

tions to show construction of act be-

90. Harmless error.—Seaboard Air low.—Southern R..Co. v. Gadd, 233 U.
Line Railway v. Moore, 228 U. S. 433, S. 572, 58 L. Ed. 1099, 34 S. Ct. 696.

57 L. Ed. 907, 33 S. Ct. 580. 92. Southern R. Co. v. Gadd, 233 U-
91. Assignment—Merit of conten- §S. 572, 58 L. Ed. 1099, 34 S. Ct. 696.
429 APPEAL AND ERROR. §§ 210-211
bia, depends upon § 250, cl. 6, of the Judicial Code, giving such a right
when any law of the United States is drawn in question by the defendant
and is not open to controversy that the “law of the United States” therein
referred to “embraced only laws of the United States of general operation,”
and does not therefore include “laws of the United States local in their ap-
plication to the District of Columbia.” The test of jurisdiction is the nature of
the statute itself and not the character of the act to which it applies and also
upon its general operation. So the first Employers’ Liability Act having
been declared unconstitutional it ceased to be a general law of the United
States so as to come under this clause and was thereafter local in its appli-
cation to the District of Columbia and the territories, and to hold it to be
general would cause the court to declare it in operation as to all the states
and thus in effect overrule the opinions which declared it unconstitu-
tional.98

§§ 211-212. From State Court of Last Resort to Supreme Court
of United States—§ 211. Claim and Denial of Federal Right.—lf
in the course of the trial of a case in the state court it should develop that
the decision of the case depends upon the construction of the act of con-
gress, and the decision is against some right or privilege set up and claimed
by the defendant thereunder, he is not remediless. The matter may be
re-examined and reversed or affirmed in the Supreme Court of the United
States upon writ of error to the highest court of the state.®# In order to
secure such a writ there must have been set up and claimed some right un-
der the federal law, which was denied.®®° While it is not necessary that the
claim be set up in the pleadings,®® it must appear of record; and where
under the practice in a state defendant’s demurrer to the evidence present-
ing the objection that “under the pleadings and the evidence” a verdict
could not be found against it, this was sufficiently specific. It refers to the.
petition which was drawn under the state law and to the evidence which
showed a case under the federal statute only, and thereby specifically stated

the trial court. Erie R. Co. v. Purdy,
185 U. S. 148, 46 L. Ed. 487, 22 S.
Ct. 605; Miller v. Texas, 153 U. S. 535,

93. From court of appeals in Dis-
trict of Columbia— Washington, etc.,
R. Co. v. Downey, 236 U. S. 190, 59

L. Ed. 533, 35 S. Ct. 406.

94. From state court of last resort
to supreme court of United States.—
Miller v. Illinois Cent. R. Co. (C. C.),
168 Fed. 982, 987.

95. Sufficiency of claim and denial
of federal right—Chicago, etc., R. Co.
v. Hackett, 228 U. S. 559, 57 L. Ed.
966, 33 S. Ct. 581.

“However, the right must be ‘ “spe-
cially set up or claimed” at the proper
time in the proper way.’ Spies v. Illi-
nois, 123 U. S. 131, 31 L. Ed. 80, 8 8.
Ct. 21, 22; Brown v. Massachusetts,
144 U. S. 573, 36 L. Ed. 546, 12 S. Ct.
757. And the proper time and proper
way is before final judgment and in

38 L. Ed. 812, 14 S. Ct. 874; Morrison
v. Watson, 154 U. S. 111, 38 L. Ed.
927, 14 S. Ct. 995. And it must be un-
mistakably set up or claimed and not
left to inference. Oxley Stave Co. v.
Butler County, 166 U. S. 648, 41 L.
Ed. 1149, 17 S. Ct. 709. * * * While
the right must be unequivocally
claimed and ‘pointed out, it has never
been held that this should be done in
express words.’ Bridge Proprietors v.
Hoboken Co. (U. S.), 1 Wall. 116, 143,
17 L. Ed. 571.” Moliter v. Wabash R.
Co., 180 Mo. App. 84, 168 S. W. 250.
96. Claim need not be in pleadings,
but in record.—Moliter 7. Wabash R.
Co., 180 Mo. App. 84, 168 S. W. 250.
§ 211 FEDERAL EMPLOYERS LIABILITY ACT. 430

that that character of evidence did not show a liability under that character
of pleading.®? That a federal right had been denied is stated as a fact by
the judge granting the writ, is not sufficient.°8 In Seaboard Air Line
Railway v. Duvall, 225 U. S. 477, 56 L. Ed. 1171, 32 S. Ct. 790, the court

said:

“This writ of error was allowed by the chief justice of that court upon
the ground that ‘there was drawn into question a right, privilege, or
immunity claimed by the railroad company under a statute of the
United States, and the decision was against such right, privilege, or
immunity so claimed and specially set up by said defendant,’ etc. Such
a certificate is, however, not sufficient to confer jurisdiction to review
the judgment of a state court under § 709 Revised Statutes (U. S.
Comp. Stat. 1901, p. 575). That there was set up and denied some
claim or right under the constitution or a statute of the United States
must appear upon the record; and such a certificate is only of value
to make more definite or certain that the federal right was definitely
asserted and decided. Sayward uv. Denny, 158 U. S. 180, 39 L. Ed.
941, 15 S. Ct. 777; Louisville, etc., R. Co. v. Smith, 204 U.S. 551, 51
L. Ed. 612, 27 5. Ct. 401.”

Therefore it is the obvious duty of counsel, if they wish any particular
construction of the Employers’ Liability Act to put the request in such
definite terms as that the attention of the court might be directed to the
point, and the record should show that the right claimed on appeal was the
right “specially set up’ and denied by the court. ‘It must appear on the
face of the record that it was in fact raised; that the judicial mind of the
court was exercised upon it; and then a decision against the right claimed
under it.” Or, at all events, it must appear from the record that there was
necessarily present a definite issue as to the correct construction of the act,
so directly involved that the court could not have given the judgment it did
without deciding the question against the contention of the plaintiff in
error.9° Thus where there was a trial in which, under the state practice,
the jury returned a special verdict, finding, among other things: (1) that
the railroad company was negligent, and (2) that the plaintiff was not
guilty of contributory negligence. The case was then taken to the supreme
court of the state, which, because of an error in the chasge on the subject
of damages, granted a partial new trial and remanded the case for a hear-
ing in which the only question to be considered was the amount to be
awarded the plaintiff. The new trial was granted at the instance of the
railway company. It did not ask the supreme court for a rehearing, or for

97. Moliter v. Wabash R. Co., 180 98. Seaboard Air Line Railway v.
Mo. App. 84, 168 S. W. 250. In this Duvall, 225 U. S. 477, 56 L. Ed. 1171,
view the court relied upon the deci- 32 S. Ct. 790.
sion in Vaughan v. St. Louis, etc. R. 99. Seaboard Air Line Railway v.
Co., 177 Mo. App. 155, 164 S. W. Duvall, 225 U. S. 477, 56 L. Ed. 1171,
144, 148, and St. Louis, etc, R. Co. v. 32 S. Ct. 790.

McWhirter, 229 U. S. 265, 277, 57 L.
Ed. 1179, 33 S. Ct. 858.
431 APPEAL AND ERROR. § 211

a modification of the mandate, or for permission to introduce newly dis-
covered evidence, nor was there any offer of such newly discovered evi-
dence on the second trial. That offered and excluded was not in the nature
of newly discovered evidence, and the ruling of the trial court in reference
to such evidence was in accordance with the mandate of the supreme court.
Under these facts it cannot be said that the decision operated to deprive the
railway company of a federal right.2

If the supreme court of a state should pass upon a federal question, the
sufficiency of the record of the trial court to present the question is not
open to objection, since the court held the objection sufficiently raised and
decided it.2. This is also true when it is claimed that the defendant rail-
road, by having pleaded contributory negligence and thus relying on the
state law, is estopped to say that the federal law governed under which
it was denied any rights.? Moreover, since the plaintiff, and not the de-
fendant, had the election as to how the suit should be brought, and as he
relied upon the state law, the defendant had no choice if it was to defend
upon the facts. And also a federal question is presented where the local
rules of practice require that when instructions are offered upon any issue
respecting which the jury should be instructed, but they are incorrect in
form or substance, it is the duty of the trial court to prepare or direct the

1. Norfolk, etc., R. Co. v. Ferebee,
238 U. S. 269, 59 L. Ed. 1303, 35 S.
Ct. 7841.

2. Same—Effect of decision by state
supreme court.—St. Louis, etc., R. Co.
v. Hesterly, 228 U. S. 702, 57 L. Ed.
1031, 33 S. Ct. 703; North Carolina R.
Co. v. Zachary, 232 U. S. 248, 58 L.
Ed. 591, 34 S. Ct. 305, Ann. Cas. 1914C,
159.

“In support of the judgment, it is
earnestly argued that the question
whether deceased was employed in in-
terstate commerce was not properly
raised in the trial court, in accordance
with the pertinent provisions of the
local Code of Civil Procedure. But
this is a question of state practice; and
since it appears that defendant ex-
pressly claimed immunity by reason of
the act of congress, and the highest
court of the state either decided or as-
sumed that the record sufficiently pre-
sented a question of federal right, and
decided against the party asserting that
right, the decisions of this court render
it clear that it is our duty to pass upon
the merits of the Federal question.”
North Carolina R. Co. v. Zachary, 232
U. S. 248, 58 L. Ed. 591, 34 S. Ct. 305,
Ann, Cas. 1914C, 159.

“But, in the latest utterances of the
Supreme Court of the United States,
it is decided that a federal question
will be regarded as property raised at
the proper time and place, in instances

where the state court of last resort
holds that such ‘question is made be-
fore it, according to its practice, and
proceeds to determine it.” Miedreich
v. Lauenstein, 232 U. S. 236, 58 L. Ed.
584, 34 S. Ct. 309. In North Carolina
R. Co. v. Zachary, 232 U. S. 248, 58
L. Ed. 591, 34 S. Ct. 305, Ann. Cas.
1914C, 159. It was held that, as ‘the
highest court of the state either de-
cided or assumed that the record suffi-
ciently presented a question of federal
right and decided against the party as-
serting that right, the decisions of this
court render it clear that it is our duty
to pass upon the merits of the fed-
eral question.’ And the same court in
St. Louis, etc., R. Co. v. Hesterly, 228
U. S. 702, 57 L. Ed. 1031, 33 S. Ct. 703,
said, in answer to an obejction that
the federal question was not specially
raised, that as the supreme court (of
the state) treated the request ‘for a
ruling that the plaintiff could not re-
cover damages for pain,’ as intended
to raise the question, the objection was
not an open one in that court.” Mol-
iter v. Wabash R. Co., 180 Mo. App.
84, 168 S. W. 250.

3. St. Louis, etc., R. Co. v. Hesterly,
228 U. S. 702, 57 L. Ed. 1031, 33 S.
Ct. 703.

4. St. Louis, etc., R. Co. v. Hesterly,
res U. S. 702, 57 L. Ed. 1031, 33 S.
Ct. 703.
§ 211 FEDERAL EMPLOYERS LIABILITY ACT. 432

preparation of a proper instruction upon the point in the place of the de-
fective ones, and the state court decided that there was no evidence re-
quiring the submission of the issue covered by the offered instructions, and
hence that they were properly refused; but the question of whether or not
there was such an issue presented by the evidence was a question of law,
one of federal law in a case under this act, and when the supreme court of
the state assumed to decide it, it is reviewable on appeal.5

The existence of jurisdiction to review under the principles just stated
depends not merely upon form, but upon substance; that is, in this class of
cases, as in others, the general rule controls that power to review cannot
arise from the mere assertion of a formal right when such asserted right is
so wanting in foundation and so unsubstantial as to be devoid of all merit and
frivolous. And a motion to affirm the judgment should prevail, where the
questions urged upon the court’s attention as a basis for a reversal of the
judgment have been so plainly foreclosed by decisions of the court as to
make further argument unnecessary.7

In a cause of action based upon a state statute, the fact that the defend-
ant did not object to the action as brought, until the evidence disclosed a
case under the federal law, was not a waiver of his right to urge that the
federal law governed the case.8 In fact it has been held that if the right is
not set up until made in a motion for a new trial, it is not too late. It being
a matter of claim and not of waiver, it was in time, when made before the
judgment, since a judgment is not considered to be rendered until the mo-
tion for new trial is overruled.®

Where the cause of action alleged was exclusively based on federal stat-
utes and the defense therefore alone involved determining whether there
was liability under such statutes, the mere statement of the case involved a
federal right and necessarily required, from a general point of view, its
determination.1° In such a case the refusal of the court to instruct the
jury that there was no negligence to show the.railroad liable and the sub-
mission of that issue to the jury presents a federal question for review; 11
and if the case is predicated upon the violation of a federal statute as neg-
ligence no ruling of the state court in regard to the liability of the defend-
ant for negligence, can be said to be an independent non-federal ground,

5. Chesapeake, etc., R. Co. v. De At-
ley (U. S.), 36 S. Ct. 564.

6. Same—Claim must be meritorious.
—Seaboard Air Line Railway v. Padg-
ett, 236 U. S. 668, 59 L. Ed. 777, 35
S. Ct. 481.

7. Same—Questions concluded by
decisions.—Missouri Pac. R. Co. 7.
Castle, 224 U. S. 541, 56 L. Ed. 875,
32 S. Ct. 606. 4

8. Time of setting up claim.—St.
Louis, etc., R. Co. v. Seale, 229 U. S.

156, 57 L. Ed. 1129, 33 S. Ct. 651, Ann.
Cas. 1914C, 156.

9. Moliter v. Wabash R. Co., 180
Mo. App. 84, 168 S. W. 250.

10. Cases held to present federal
question—Action based entirely on
federal acts—St. Louis, etc., R. Co. v.
McWhirter, 229 U. S. 265, 57 L. Ed.
1179, 33 S. Ct. 858.

11. St. Louis, etc. R. Co. v. Mc-
Whirter, 229 U. S. 265, 57 L. Ed. 1179,
33 S. Ct. 858, reversing judgment, 140
S. W. 672, 145 Ky. 427.
433 APPEAL’ AND ERROR. § 211

sufficient to sustain the decision of the court below, and defeat the juris-
diction of the federal supreme court.1”

‘A federal question is held to have been sufficiently raised and decided
where the state supreme court sustained the trial court in overruling cer-
tain contentions made by plaintiff in error asserting a construction of the
act, which, if acceded to, would presumably have produced a verdict in its
favor, and consequent immunity from the action.13 So the contentions of
defendant, overruled by the state court and renewed on appeal, that by
the true interpretation of the federal act, the common-law rule respecting
assumption of risk was not abolished except in cases where the viola-
tion by the carrier of some statute enacted for the safety of employees
contributed to the injury of the employee; and that by the safety appliance
act and amendments, as properly interpreted, the height or construction
of the drawbars of locomotives was not regulated, so that the fact that the
drawbar in question was only 30 inches high was not a violation of these
acts, and hence afforded no ground for a recovery under the Employers’
Liability Act, presents a question reviewable in the United States Supreme
Court.1#

Any contention founded upon substantial evidence that the federal law
governs the case, to the exclusion of the state law amounts to a claim and
denial of a right under the act.15 Thus in an action under a state statute,
the plaintiff himself affirmatively proved that he was engaged in interstate
commerce, and defendant, seeing that the case proven was exclusively
cognizable under the federal act, asked a peremptory instruction. The
court refused it and submitted the case under another law. This deprived
defendant of a trial under the federal statute, and of a federal right.1°

12. Same—Decision on non-federal
ground.—St. Louis, etc., R. Co. v. Mc-
Whirter, 229 U. S. 265, 57 L. Ed. 1179,
33 S. Ct. 858.

' 18. Same—Construction of act.—
Seaboard, etc., R. Co. v. Horton, 233
U. S. 492, 58 L. Ed. 1062, 34 S. Ct. 635,
638, L.. R. A. 1915C, 1, Ann. Cas.
1915B, 475. Upon the authority of St.
Louis, etc., R. Co. v. ‘McWhirter, 229
U.S. 265, 57 L. Ed. 1179, 33 S. Ct. 858.

14. Southern R. Co. v. Crockett, 234
U.S. 725, 58 L. Ed. 1564, 34 S. Ct. 897.

15. Same—Claiming federal as ex-
clusive of state law.—St. Louis, etc.,
R. Co. v. Seale, 229 U. S. 156, 57 L.
Ed. 1129, 33 S. Ct. 651, Ann. Cas. 1914C,
156; Toledo, etc., R. Co. v. Slavin, 236
U.S. 454, 59 L. Ed. 671, 35 S. Ct. 306;
North Carolina R. Co. v. Zachary, 232
U. S. 248, 58 L. Ed. 591, 34 S. Ct. 305,
Ann. Cas. 1914C, 159; Moliter v. Wa-
bash R. Co., 180 Mo. App. 84, 168 S.
W. 250.

“Tt is not disputed that if the pro-
visions of the Federal act had been

Fed Act—28

applied, the result of the action might
have been different. To mention only
cne matter: there was neither aver-
ment in the pleadings nor evidence at
the trial that deceased left a widow,
child, parent, or dependent next of kin.
Persons thus related to deceased are
the respective beneficiaries of the ac-
tion prescribed by the act of congress,
and the damages are to be based upon
the pecuniary loss sustained by the ben-
eficiary. Michigan Cent. R. Co. vw.
Vreeland, 227 U. S. 59, 57 L. Ed. 417,
83.8. Ct. 192, Ann. Cas. 1914C, 176;
Gulf, etc., R. Co. v. McGinnis, 228 U.
S. 173, 57 L. Ed. 785, 33 S. Ct. 426.
The state law (Revisal 1908, § 2646)
seems not to recognize this limitation
upon the measure of recovery; cer-
tainly the damages in the present case
were assessed without regard to it.”
North Carolina R. Co. v. Zachary, 232
U. S. 248, 58 L. Ed. 591, 34 S. Ct. 305,
307, Ann. Cas. 1914C, 159.

16. Moliter v. Wabash R. Co., 180
Mo. App. 84, 168 S. W. 250.
§ 211 FEDERAL EMPLOYERS’ LIABILITY ACT. 434

In a case where the plaintiffs’ petition was altogether silent upon whether
the injuries which caused the death of the deceased were sustained while
the company was engaged, and while he was employed by it, in interstate
commerce, and the defendant, by appropriate special exceptions, called at-
tention to the state and federal statutes, insisted that whether one or the
other applied depended upon facts not stated, and asked that the plaintiffs
be required so to state the facts as to enable it to perceive which statute
was relied upon. The exceptions were overruled. Again at the conclusion
of the evidence the defendant requested the court to direct a verdict in its
favor on the ground that the undisputed evidence disclosed that the case
was one in which the defendant’s liability was controlled by the federal
statute, and that, if liable, it was liable only to the personal representative
of the deceased, and not to the plaintiffs. The request was denied, and
the jury returned a verdict for the plaintiffs, in which the damages were
apportioned among them conformably to the state law. These contentions
sufficiently present a denial of a right under the act sufficient to sustain a
writ of error to the United States Supreme Court.17 So, too, where neither
the plaintiff’s complaint nor the defendant’s answer contained any reference
to the act. But, over plaintiff’s objection, evidence was admitted which
showed that the train on which the plaintiff was riding, at the time of the
injury, was engaged in interstate commerce. Thereupon the railroad com-
pany insisted that the case was governed by the provisions of the act, and
moved the court to direct a verdict in its favor. That motion having been
overruled, the defendant asked the court to give in charge to the jury sev-
eral applicable extracts from the federal statute, a controlling federal ques-
tion was necessarily involved. For, when the plaintiff brought suit on the
state statute, the defendant was entitled to disprove liability under the
same, by showing that the injury had been inflicted while the parties were
engaged in interstate business. And, if without amendment, the case pro-
ceeded with the proof showing that the right of the plaintiff and the lia-
bility of the defendant had to be measured by the federal statute, it was
error not to apply and enforce the provisions of that law.18 So an assign-
ment of error which insists that, by the instructions given, the jury were
misled concerning the doctrine of assumption of risk, applicable under the
statute, embraces a federal question giving a right of review.19

The refusal to admit evidence of contributory negligence where the de-
fendant has failed to plead the same amounts to the denial of a federal
right where the court held that the negligence, though not pleaded, should
have been received in mitigation of damages if offered for that specific
purpose but was properly excluded when tendered without restriction and

17. St. Louis, etc., R. Co. v. Seale, 19. Same—Misleading instructions.—
2290 U. S. 156, 57 L. Ed. 1129, 33 5. Seaboard Air Line Railway wv. Padg-
Ct. 651, Ann. Cas. 1914C, 156. ett, 236 U. S. 668, 59 L. Ed. 777, 35

18. Toledo, etc., R. Co. v Slavin, 236 S. Ct. 481.
U. S. 454, 59 L. Ed. 671, 35 S. Ct. 306.
435 § 211

APPEAL AND ERROR.

there is no settled local rule requiring counsel to announce in advance the
purpose for which evidence is tendered.?°

Where the pleadings and evidence show an action under the federal act,
this alone is not sufficient to sustain an appeal from the supreme court of a
state to the Federal Supreme Court where the issue turned on the question
of the negligence of plaintiff in going in an express car, when he should
have remained in the baggage car, his post of duty. No right under the
federal act is denied on an instruction under such issue.24 And where in
an action by an employee of an express company, the state court has de-
cided upon substantial grounds that the pleading and evidence show no
such employment by the railroad company as to render them liable, no
denial of a federal right is involved as to give the Supreme Court juris-
diction and a motion to dismiss will be granted.22 Where the state su-
preme court holds on the question of assumption of risk that no such
issue was made or submitted to the trial court and therefore no question
was presented for review on appeal, this conclusion is not the denial of a
federal right.?3

An appeal on writ of error to a state court brought up under the safety
appliance act does not present a question for review by the Federal Su-
preme Court where the contention was that plaintiff was guilty of contribu-
tory negligence in going between cars, contrary to a rule of the company,
when the automatic coupler failed to work, there being no evidence to show
that plaintiff was engaged in interstate commerce at the time.2+ And
where the defendant knew and failed to show the origin or destination of
cars by which an employee was killed, it is not denied a federal right by
having the case submitted under the state law.?5

Where the court gives effect to a rule of local practice by which an alle-
gation of interstate commerce not sustained by proof is considered elimi-
nated, this in nowise is in contravention of the Federal Act so as to permit
an appeal.26 And permitting an amendment to a declaration, that the
plaintiff came from beyond the state, raises no question under the laws of
the United States, when the original declaration alleged the same facts
with this exception.27_ But while permitting an amendment is a matter of
local practice; whether or not, it is in disregard of the limitation in § 6,

24. Same—Case not under act.—Min-
neapolis, etc., R. Co. v. Popplar, 237

20. Same—Exclusion of evidence.—
Kansas, etc., R. Co. 7. Jones (U. S.),

36 S. Ct. 513.

21. Cases held not to deny federal
right.—Seaboard Air Line Railway v.
Duvall, 225 U. S. 477, 56 L. Ed. 1171,
32 S. Ct. 790.

22. Missouri, etc, R. Co. v. West,
232 U. S. 682, 58 L. Ed. 795, 34 S. Ct.
471.

23. Southern R. Co. v. Lloyd, 496
U. S. 239, 36 S. Ct. 210.

U. S. 369, 59 L. Ed. 1000, 35 S. Ct. 609.

25. Same—Submission of case under
state law.—Osborne v. Gray (U. S.),
36 S. Ct. 486.

26. Same—Amendment to pleadings.
—Wabash R. Co. v. Hayes, 234 U. S.
86, 58 L. Ed. 1226, 34 S. Ct. 729.

27. Kansas, etc., R. Co. v. McAdow,
240 U. S. 51, 36 S. Ct. 252.
§§ 211-212 FEDERAL EMPLOYERS’ LIABILITY ACT. 436
prohibiting the commencement of an action after two years, is a federal
question.?8

Where the plaintiff sued a carrier a joint tort feasor with his employer,
and defendant claimed the benefit of a release given its joint tort feasor,
under the common law rule, making such a release a discharge, assuming
that the release was invalid under § 5 of the Employers’ Liability Act, the
question whether the release, invalid against the joint tort feasor, would
operate to discharge the defendant from its common law liability, is not a
matter of federal law.?°

Where the court declined to dismiss an action brought under a state law
because the evidence showed a case under the federal act the refusal of
the court of appeals to review the judgment, is not a denial ofa federal
right. While the state cannot take away a federal right it can take awav
the right to appeal and in granting the privileges may define the rulings
which are reviewable. This is jurisdictional.3°

§ 212. Extent of Review.—Although the cause of action relied upon
was based upon the federal statute, nevertheless, as pointed out in St.
Louis, etc., R. Co. v. McWhirter, 229 U.S. 265, 57 L. Ed. 1179, 33 S. Ct.
858:

“As it comes here from a state court, our power to review is controlled
by Rev. Stat. § 709 [§ 237, Judicial Code (36 Stat. at L. 1156, chap.
231, Comp. Stat. 1913, § 1214)] and we may therefore not consider
merely incidental questions not federal in 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 exclusively confined, or the converse; that is to say,
the right of the defendant to be shielded from responsibility under
that statute because, when properly applied, no liability on his part
from the statute would result. Seaboard Air Line Railway v. Duvall,
225 U.S. 477, 56 L. Ed. 1171, 32 S. Ct. 790; St. Louis, etc., R. Co. v.
Taylor, 210 U. S. 281, 52 L. Ed. 1061, 28 S. Ct. 616, 21 Am. Neg.
Rep. 464.” 31

Assignments of error which raise questions of general law, but involve
no construction of the federal statute, and neither directly or indirectly
affect any federal right are not reversible upon writ of error to a state
court,?2 and the decisions of the state courts on matters of local pleading
and practice are binding and not subject to review by the Federal Supreme
Court.33 So too, the ruling of the state court as to who constituted the ‘‘next

28. Seaboard, etc., Railway v. Renn 31. Extent of review.—See, also,

(U. S.), 36 S. Ct. 567.

29. _Same—Release of liability of
joint tort feasor.—Chicago, etc. R. Co.
v. Wagner, 239 U. S. 452, 36 S. Ct. 135.

30. Same—Denial of appeal.—Tyn-
dall v. New York Cent., etc., R. Co.,
213 N. Y. 691, 107 N. E. 577, affirm-
ing 146 N. Y. S. 1115, 162 App. Div.
920.

Seaboard Air Line Railway v. Padg-
ett, 236 U. S. 668, 59 L. Ed. 777, 35 S.
Ct. 481,

32. Questions of general law.—Cen-
tral Vermont: R. Co. v. White, 238 U.
S. 507, 59 L. Ed. 1433, 35 S. Ct. 865.

83. Matters of procedure.—Central
Vermont R. Co. v. White, 238 U. S.
507, 59 L. Ed. 1433, 35 S. Ct. 865.
437 APPEAL AND ERROR. §§ 212-213

of kin” of the decedent is not reviewable.34

- The evidence, upon an appeal from the highest state court, will be ex-
amined only to the extent necessary to give to the plaintiff in error the
benefit of an asserted federal right.25 So a case in which there is no ques-
tion as to the interpretation of any provision of the federal act, or as to the
definition of legal principles in its application, but simply involves an ap-
preciation of all the facts and admissible inferences in the particular case
for the purpose of determining whether there were matters for the con-
sideration of the jury, and the state courts, trial and appellate, held that
there were, having regard to the appropriate exercise of the jurisdiction
of the supreme court, the decision should not be disturbed upon such ques-
tions unless error is palpable.3® So, an excessive verdict is not subject to
examination by the Federal Supreme Court on appeal.37

§ 213. Judgment on Appeal.—A case will be dismissed on appeal
where even if the complaint, drawn to state an action under the federal
statute, is broad enough in its statement of facts to make out a case under
the laws of a state, if the case is not within the federal act, where the evi-
dence fails to make out a case under either the federal statutes or the state
law.38 But a motion to dismiss will be overruled where the questions pre-
sented are: “First, a refusal to instruct a verdict on the ground that there
was no evidence tending to show either negligence or that the company or
the deceased at the time of the particular transaction from which the injury
arose was engaged in interstate commerce; and second, a further refusal
to instruct that a state statute limiting the amount of recovery was con-
trolling although the suit was under the act of congress. These contentions
are federal.” 39

A motion to affirm must be granted where the errors assigned are:
first, that there is no evidence to show negligence or that the deceased was
engaged in interstate commerce; second, that a state statute limiting the
amount of recovery was controlling, where it cannot be asserted that there
was no tendency of proof whatever on the subject first stated as error and
the record and arguments show that it alone involves a mere dispute con-

34, “Next of kin.”—Seaboard, etc., ligence and assumed risk as they in-

Railway v. Kenney (U. S.), 36 S. Ct.
458.

35. Extent of consideration of evi-
dence.—North Carolina R. Co. v. Zach-
ary, 232 U. S. 248, 58 L. Ed. 591, 34
S. Ct. 305, Ann. Cas. 1914C, 159.

36. Great Northern R. Co. v. Knapp
(U. S.), 36 S. Ct. 399, 400; Seaboard,
etc., Railway v. Kenney (U. S.), 36 S.
Ct. 458; Louisville, etc., R. Co. v. Stew-
art (U. S.), 36 S. Ct. 586; Baugham vw.
New York, etc, R. Co. (U. S.), 36 S.
Ct. 592.

To disturb the judgments of the trial
and state courts, on questions of neg-

volve an application of all the evidence
and the inferences which admissibly
might be drawn therefrom, there must
be clear and certain error. Seaboard,
etc., Railway v. Renn (U. S.), 36 S.
Ct. 567.

37. Excessive verdict. — Southern
Railway v. Bennett, 233 U. S. 80, 58
L. Ed. 860, 34 S. Ct. 566.

38. When dismissed—Norton v.
Erie R. Co., 163 App. Div. 466, 148 N.
Y. S. 769.

39. Chicago, etc. R. Co. v. Devine,
239 U. S. 52, 36 S. Ct. 27, 28.
§ 213 FEDERAL EMPLOYERS LIABILITY ACT. 438

cerning the weight of conflicting tendencies of proof; and the second js
conclusively established by previous decisions concerning the exclusive
operation and effect of the federal act.4° And the contention that a yard
conductor when acting under instructions to place two loaded cars, which
had been received in the yard from another state, upon a private switch
connecting with the yard, who was injured after beginning the movement,
in removing two empty cars in order to make room for the loaded ones,
was not engaged in interstate commerce requiring a charge to that effect,
is so frivolous as not to need further argument and judgment below must
be affirmed on motion.#!

Where a judgment in favor of the plaintiff has been reversed by the
State Supreme Court for an instruction, excepted to by the defendant,
that the jury should find, if anything, “such a sum as will fairly compensate
his estate for his death,” neither justice nor law will permit the verdict
and judgment to be reinstated after the state court had set it aside.42

Where the contentions of the plaintiff in error as to the construction of
the statute are so wanting in merit, that it can only be concluded that the
appeal was prosecuted for the purpose of delay, a penalty by way of dam-
ages will be imposed.4® And where upon the whole evidence in an action
for personal injuries, the defendant’s motion, for a verdict in its favor be-
ing denied, and upon submission of the issue to the jury they returned a
verdict for the plaintiff; on being taken to the circuit court of appeals, not
because of exception to the charge but .that the undisputed evidence showed
contributory negligence, the verdict was affrmed. On appeal to the United
States Supreme Court, the verdict will be affirmed with 10 per cent dam-
ages.## Qn the right of a state court to add damages to the judgment on
an unsuccessful appeal, in Louisville, etc., R. Co. v. Stewart (U. 8.), 36
S. Ct. 586, 588, the court said:

“The first of the other objections is that the court of appeals was not
authorized to add 10 per cent damages on the amount of the judg-
ment, as it did. But the railroad company obtained a supersedeas,
and the law of the state makes 10 per cent the cost of it to all per-
sons if the judgment is affirmed. There was no obligation upon the
state to provide for a suspension of the judgment, and nothing to
prevent its making it costly in cases where ultimately the judgment
is upheld. So, the state may allow interest upon a judgment from the
time when it is rendered, if it provides appellate proceedings and the
judgment is affirmed, as, but for such proceedings, interest would run
as of course until the judgment was paid.”

40. When affirmed on motion.—Chi- 43. Penalty on affirmance.—South-
cago, etc., R. Co. v. Devine, 239 U. ern _R. Co. v. Gadd, 233 U. S. 572, 58
S. 52, 36 S. Ct. 27. ; L. Ed. 1099, 34 S. Ct. 696.

41. Pennsylvania Co. v. Donat, 239 44, Texas, etc., R. Co. v. Prater, 229
U. S. 50, 36 S. Ct. 4. U.S. 177, 57 L. Ed. 1139, 33 S. Ct. 637.

42. Reinstatement of reversed judg-
ment on appeal.—Louisville, etc. R.
Co. v. Stewart (U. S.), 36 S. Ct. 586.
439 APPEAL AND ERROR. § 213

Where a case properly coming under the act has been tried under the
state law it should be remanded for a new trial, under the federal act,
without prejudice to the rights of the parties.*#5 Where an action is prop-
erly stated under the Act and is brought for the benefit of the employee’s
surviving father and mother, an allegation of pecuniary loss to these bene-
ficiaries is essential. So where for the want of such an allegation the judg-
ments of the district court and the circuit court of appeals are affirmed; the
case will not be remanded so as to permit an amendment including this es-
sential allegation. Opportunity to amend having been offered the plaintitf
in each of the courts below and they having committed no error, of which
just complaint can be made and-even though there were uncertainties as
to the construction of the statute, the rights of the defendant must be given
effect.46 And when after remand and a new trial, if the plaintiff fails to
make a case, and it appears that he cannot do so the defendant is entitled
to a judgment ending the litigation.*7

Though recognizing in the instant case that the ordering of a new trial
upon the issue of damages alone, was in no way prejudicial to the de-
fendant, the United States Supreme Court says, “that the practice is not

to be commended.” #8

45. Remand for trial under proper
law.— United States —St. Louis, etc., R.
Co. v. Seale, 229 U. S. 156, 57 L. Ed.
1129, 33 S. Ct. 651, Ann. Cas. 1914C,
156,

Kentucky.—Cincinnati, etc., R. Co. v.
Goode, 155 Ky. 153, 159 S. W. 695.

Texas—St. Louis, etc, R. Co. wv.
Seale (Tex. Civ. App.), 160 S. W. 317.
See, also, Ft. Worth, etc, R. Co. v.
Copeland (Tex. Civ. App.), 164 S. W.
857, 858, writ of error dismissed in 170
S. W. xix, no op.

“But the case, as made up in the
lower court by the pleadings, evidence,
and instructions, was practiced under
the rules of law prevailing in this state
and not under the federal statute
known as the Employers’ Liability
Act, and we do not see our way clear,
in the condition of the record as it
now stands, to define the rights of ap-
pellee or the liability of the appellants
under the federal statute. But on the
return of the case the court will per-
mit the parties to tender and file such
amended pleadings as they may de-
sire and will hear and adjudge the
case under the federal statute and in
accordance with the rules of law and
practice applicable thereto. This di-
rection, however, is not to prejudice
the rights of the railroad company to
make and rely on any defense it may
have.” Cincinnati, etc, R. Co. vw.
Goode, 155 Ky. 153, 159 S. W. 695.

46. Garrett v. Louisville, etc., R. Co.,
235 U. S. 308, 59 L. Ed. 242, 35 S.
Ct. 32:

47. Marshall v. Chicago, etc., R. Co.,
131 Minn. 392, 155 N. W. 208.

48. Granting partial new trial_—Nor-
folk, etc., R. Co. v. Ferebee, 238 U.
S. 269, 59 L. Ed. 1303, 35 S. Ct. 781.

“Damages and contributory negli-
gence are so blended and interwoven,
and the conduct of the plaintiff at the
time of the accident is so important a
matter in the assessment of damages,
that the instances would be rare in
which it would be proper to submit to
a jury the question of damages with-
out also permitting them to consider
the conduct of the plaintiff at the time
of the injury. But this record, in con-
nection with the special-finding first
verdict, shows that in this case the
two matters were in fact separable, so
that the splitting up the issues and
granting a partial new trial did not
in this particular instance operate to
deprive the defendant of_a Federal
right. For it appears that Ferebee had
nothing to do with the loss of the
steps and was not guilty of contribu-
tory negligence in failing to see that
they were missing. His conduct at the
time of his fall could not, therefore,
affect the amount of the verdict so
that it was possible, on the second
trial, to award damages without con-
sidering the conduct of the plaintiff,
§ 213 FEDERAL EMPLOYERS’ LIABILITY ACT. 440

Where in an action under the state statute a verdict was directed for
the defendant for the reason that the case was governed by the federal
act, and the verdict and judgment did not indicate the ground upon which
they were rendered, the form of the judgment will be so modified so it
will show this upon its face.#9

There may be cases in which the error when affecting the measure of
damages, although prejudicial, can be cured by permitting or requiring
the plaintiff to remit a portion of the damages and thereupon affirming the
judgment. In this respect the appellate court cannot take the place of a
jury." So, in the instances in which this practice has been followed by
the supreme court 5! and by the circuit court of appeals 5? there has been
mathematical basis by which it could be computed, or at least closely ap-
proximated, how much of the verdict was due to the erroneous element;
and the court has declined to permit such a remittitur in a case where this
computation could not be made.5? Though not aware of any instance
where this practice has been adopted by a federal appellate court, and in
which the elements of damage were of such indeterminate character that
there was no criterion for segregation, in view of the manifest merit of
the practice, it cannot be said that it may never be adopted in any case
where the verdict is based on these indeterminate elements. It may some-
times clearly enough appear from the whole record that the damages rest-
ing on the erroneous foundation cannot be more than a certain amount and
that there can be no injustice in providing that the verdict may stand if
the plaintiff will remit that amount.54 Such a case, however, is not pre-
sented where the court would be compelled to estimate three fractions:
First, what portion of the whole damages was represented by the verdict
after a proportionate deduction on account of contributory negligence;
second, what portion of the verdict was considered as. damages to the
widow; and, third, what portion of these damages to the widow was for
loss of society as distinguished from loss of support. The judgment being
in solido for the widow and children, to cure the error it would require a
finding of an unknown fraction of an unknown portion of an unknown
whole, or else to allow so liberally for these uncertainties as to put upon
the plaintiff a greater and more unjust burden than is imposed by the
award of a new trial.55

or retrying the question of contribu-
tory negligence.” Norfolk, etc., R. Co.
v. Ferebee, 238 U. S. 269, 59 L. Ed.
1303, 35 S. Ct. 781.

49. Modification to show grounds of
rendition.—Ross v. Sheldon (Iowa),
154 N. W. 499.

50. Requiring remittitur and affirm-
ance.—Pennsylvania Co. v. Sheeley,
137 C. C. A. 471, 221 Fed. 901.

51. See Hansen v. Boyd, 161 U. S.
397, 40 L. Ed. 746, 16 S. Ct. 571.

52. Huebel Co. v. Leaper, 110 C. C.
A. 475, 188 Fed. 769; Mosby v. United
States, 116 C. C. A. 74, 194 Fed. 346.

58. Chesbrough v. Woodworth, 116
C. C. A. 465, 195 Fed. 875.

54. New York, etc. R. Co. v. Niebel,
131 C. C. A. 248, 214 Fed. 952.

55. Case where error not to be cured
by remittitur—New York, etc., R. Co.
v. Niebel, 131 C. C. A. 248, 214 Fed. 952.
441 APPEAL AND ERROR. § 213

On the other hand where the only error is claimed to be the failure of
the jury to take into consideration the contributory negligence of the plain-
tiff, who was killed while in the employ of a railroad company as a fireman,
by the negligence of the engineer to obey a signal, the negligence of the
engineer being established, and there being no fair grounds to say that the
decedent’s negligence, in failing to see that the engineer obeyed the signals
as more than one-half of the engineer’s or one-third of the whole, a re-
mittitur of one-third of the damages found will be required or a new trial
ordered.5® In Hadley v. Union Pac. R. Co.57 where the negligence was
traceable to so many different people that it was difficult to determine the
proportion that ought to be charged to deceased, but as it could not be less
than one-fourth of the whole this deduction was made from the amount
which was found to represent the total damages. And also where the find-
ings below were that the defendant was negligent and the plaintiff free
from negligence but on appeal both were found to have been equally neg-
ligent, judgment will be rendered for one-half of the amount found be-
low.38

56. Case of proportionate remittitur 57. (Neb.), 156 N. W. 765, 769.
held proper.—Pennsylvania Co. wv. 58. Anest v. Columbia, etc., R. Co.
Sheeley, 137 C. C. A. 471, 221 Fed. 901. (Wash.), 154 Pac. 1100.
The Safety Appliance Act

CHAPTER XXX.

OBJECT, VALIDITY, AND OPERATION OF ACT.

. Object and Purpose, § 214.

. Constitutionality, § 215
Construction, § 216.

. Nature of Duty Imposed, § 217.
. Operation on State Laws, § 218.

oP WYP

§ 214. Object and Purpose.—The primary object of the act was to
promote the public welfare by securing the safety of employees and travel-
ers.t Its specific purpose is pertinently voiced by the title, as follows: “To

promote the safety of employees and travelers upon railroads.”

It is in-

tended to protect the public generally, and persons and property that are
being transported by railroad, and particularly is it intended to protect the
lives and limbs of employees engaged in the dangerous and hazardous busi-
ness of operating railroad trains.2 And in the extent that the employees are
concerned, the act was intended, not to increase the difficulty of getting
compensation for injuries sustained, but to decrease the number of cases in

1. Object and purpose. — United
States—United States v. St. Louis,
etc, R. Co. (D. C.), 154 Fed. 516;
United States v. Southern Pac. Co. (D.
C.), 154 Fed. 897; Wabash R. Co. v.
United States, 93 C. C. A. 393, 168
Fed. 1; Atlantic, etc., R. Co. v. United
States, 94 C. C. A. 35, 168 Fed. 175,
affirming 153 Fed. 918; United States
v. Southern R. Co. (D. C.), 170 Fed.
1014; United States uv. Chicago, etc.,
R. Co. (D. C.), 173 Fed. 684; South-
ern R. Co. v. Snyder, 109 C. C. A. 344,
187 Fed. 492; Johnson v. Southern
Pac. Co. 196 U. S. 1, 49 L. Ed. 363,
25 S. Ct. 158; United States v. Atlan-
tic, etc, R. Co. (D. C.), 214 Fed. 498;
Spokane, etc., R. Co. v. Campbell, 133
C. C. A. 370, 217 Fed. 518, affirmed in
36 S. Ct. 683; United States v. Chicago,
etc, R. Co. (D. C.), 149 Fed. 486;
United States v. Philadelphia, etc., R.
Co. (D. C.), 223 Fed. 215.

Colorado.—Felt v. Denver, etc. R.
Co., 48 Colo. 249, 110 Pac. 215, 21 Am.
& Eng. Ann. Cas. 379.

Pennsylvania.—Allen v.  Tuscaroro,
etc., R. Co., 229 Pa. 97, 78 Atk 34, 30
L. R. A, N. S., 1096.

442

“On the 3d day of December, 1889,
President Harrison, in a message to
congress, in referring to the great loss
of human life, owing to a failure on
the part of railroad companies to prop-
erly equip their cars with safety ap-
pliances, among other things, said:
‘It is a reproach to our civilization
that any class of American workmen,
in the pursuit of a useful and neces-
sary occupation, should be subject to
a peril of life and limb as great as
that ofa soldier in time of war.’” At-
lantic, etc., R. Co. uv. United States,
94 C. C. A. 35, 168 Fed. 175, affirming
153 Fed. 918.

“The object of the congress in pass-
ing the safety appliance acts was un-
doubtedly to safeguard interstate com-
merce, the life of the passengers, and
the life and limb of the employees en-
gaged therein. In doing this it has
seen fit to prescribe the use of certain
appliances for handling trains.” United
States v. Atlantic, ete, R. Co. (D.
C.), 214 Fed. 498, 499.

2. General and particular purpose.
—wUnited States v. Chicago, etc., R.
Co. (D. C.), 162 Fed. 775, 778.
443 OBJECT, VALIDITY, AND OPERATION OF ACT. §§ 214-215
which injuries would happen.? Thus though for violations of the act a
penalty is imposed, its design to give protection, must be considered more

dominant than to inflict punishment.4

§ 215. Constitutionality.—The constitutionality of the act has passed
into the realm of settled law,® but the objections urged are worthy of notice.
Thus the denial to the railroad company of the defense of assumption of
risk is within the power of Congress when legislating on interstate com-
merce, as much so as the right to require compliance with the regulations
thereof.* That the delegation by congress of the power to fix the standard
height of drawbars of cars used in interstate commerce to the American
Railway Association and to be confirmed by the Interstate Commerce Com-
mission, is not an unconstitutional delegation of constitutional power, has
been authoritatively determined.? In St. Louis, etc., R. Co. vu. Taylor, 210
U.S. 281, 52 L. Ed. 1061, 28 S. Ct. 616, the court said:

“It is contended that there is here an unconstitutional delegation of legis-
lative power to the railway association and to the Interstate Commerce
Commission. This is clearly a federal question. Briefly stated, the
statute enacted that after a date named only cars with drawbars of
uniform height should be used in interstate commerce, and that the
standard should be fixed by the association and declared by the Com-
mission. Nothing need be said upon this question except that it was
settled adversely to the contention of the plaintiff in error in Buttfield
v. Stranahan, 192 U. S. 470, 48 L. Ed. 525, 24 S. Ct. 349,—a case
which, in principle, is completely in point. And see Union Bridge Co.
v. United States, 204 U. S. 364, 51 L. Ed. 523, 27 S. Ct. 367, where
the cases were reviewed.”

Interference with Intrastate Commerce.—Its constitutionality has
been attacked on the ground also that it was an unauthorized interference
with intrastate commerce and state laws with respect thereto,’ to which it
was answered that, the constitution reserved to the nation the unlimited
power to regulate interstate and foreign commerce, and if that power cannot

3. Not to increase difficulty of re-
covery of compensation. — Chicago,
etc., R. Co. v. Brown, 107 C. C. A. 300,
185 Fed. 80, affirmed in 33 S. Ct. 840;
United States v. Philadelphia, etc., R.
Co. (D. C.), 223 Fed. 215. ae

“Tts general purpose is humanitarian
—the safeguarding of employees from
injury and death.” United States v.
Philadelphia, etc, R. Co. (D. C.), 223
Fed. 215.

4. Protection, superior to penal
features.—Johnson v. Southern Pac.
Co., 196 U. S. 1, 49 L. Ed. 363, 25 S.
Ct. 158, reversing 117 Fed. 462, 54
C. C. A. 508.

5. Constitutionality—United States
v. Southern R. Co. (D. C.), 164 Fed.
347, affirmed in 32 S. Ct. 2; Wabash

R. Co. v. United States, 93 C. C. A.
393, 168 Fed. 1; icago Junction R.
Co. v. King, 94 C. C. A. 652, 169 Fed.
372; United States v. Atlantic, etc., R.
Co. (D. C.), 153 Fed. 918, affirmed in
168 Fed. 175, 94 C. C. A. 35; Chicago,
etc., R. Co. v. Brown, 107 C. C. A. 300,
185 Fed. 80; Kansas, etc, R. Co. v.
Flippo, 138 Ala. 487, 35 So. 457.

6. Denial of assumed risk as de-
fense.—Kansas, etc., R. Co. v. Flippo,
138 Ala. 487, 35 So. 457.

7. Delegation of authority to fix
height of drawbars.—St. Louis, etc., R.
Co. v. Taylor, 210 U. S. 281, 52 L. Ed.
1061, 28 S. Ct. 616, reversing on other
grounds, 83 Ark. 591, 98 S. W. 958.

8 See post, “Operation on State
Laws,” § 218.
§ 215 THE SAFETY APPLIANCE ACT. 444
be effectually exercised without affecting intrastate commerce then congress,
may undoubtedly in that sense regulate intrastate commerce so far as nec-
essary, in order to regulate interstate commerce fully and effectually. The
people of the United States carved out of their sovereign power, reserved
from the states, and granted to the congress of the United States exclusive
and plenary power to regulate commerce among the states and with foreign
nations. That power is not subordinate, but it is paramount to all the pow-
ers of the states. If its independent and lawful exercise of this congres-
sional power, and the attempted exercise by a state of any of its powers, im-
pinge or conflict, the former must. prevail and the latter must give way.
The constitution and the acts of congress passed in pursuance thereof are
the supreme law of the land. ‘That which is not supreme must yield to that
which is supreme.” ®

This contention was strongly urged after the amendment of 1903, by
which the provision of the original act were made to extend and declared
“to apply to all trains, locomotives, tenders, cars and similar vehicles used
on any railroad engaged in interstate commerce,”!® but the act is not un-
constitutional when made to apply to vehicles of interstate carriers used for
intrastate traffic.1t It would seem that the amendment would be read as if
it were consolidated with the earlier acts; for it is a rule of construction
that “an amendment of a statute by a subsequent act operates precisely as
if the subject-matter of the amendment had been incorporated in the prior
act at the time of its adoption, so far as regards any action had after the
amendment is made.” 12 This would lead to the conclusion that the amend-
ment of 1903 was intended to be a regulation of railroads while they are
engaged in interstate commerce, and that the language means the same
thing as if the word “when” were interposed before the word “engaged.”
And, indeed, this is not a forced construction, but is one of the natural
constructions which the words actually used would bear; for “engaged”
might with equal propriety refer to a continuous period, or to a definite
time. And this fact would found the duty of adopting the latter definition.
And, so construed, the statute is relieved of the objection that congress
has no power to regulate the domestic commerce of a state.18

After all, on this subject of the constitutionality of the act, that question

9. Interference with intrastate com-
merce.—United States wv. Colorado,
etc, R. Co. 85 C. C. A. 27, 157 Fed.
321, 15 L. R: A., N. S., 167, 13 Am. &
Eng. Ann. Cas. 893; Southern R. Co.
v. United States, 222 U. S. 20, 56 L.
Ed. 72, 32 S, Ct. 2, affirming 164 Fed.
347,

10. Amendment of 19038.—By act
March 2, 1903, c. 976, § 1, 32 Stat. 943,
it is declared that: “The provisions
and requirements hereof and of said
acts [meaning the acts of March 2,
1893, and April 1, 1896] relating to

train brakes, automatic couplers, grab-
irons, and the height of drawbars shall
be held to apply to all trains, locomo-
tives, tenders, cars and similar vehi-
cles used on any railroad engaged in
interstate commerce.”

11. State vw. Orange, etc, R. Co.
(Tex. Civ. App.), 181 S. W. 494.

12. Black on the Interpretation of
Laws, 357.

13. As consolidated with prior act.
—Louisville, etc, R. Co. v. United
States, 108 C. C. A. 326, 186 Fed. 280.
445 OBJECT, VALIDITY, AND OPERATION OF ACT. § 215

has been fully answered by the determination of the Supreme Court of the
United States: It is declared that this act of 1903 only construes and ap-
plies the act of 1893, and does not add any new affirmative provision.14
Also by that court it has also been determined that the power of congress to
regulate interstate commerce is plenary, and competently may be exerted
to secure the safety of the persons and property transported therein and
of those who are employed in such transportation, no matter what may be
the source of the dangers which threaten it. That is to say, it is no objec-
tion to such an exertion of this power that the dangers intended to be
avoided arise, in whole or in part, out of matter connected with intrastate
commerce,!5 and when considering this point, after declaring the amend-
ment to have enlarged the original act, in Southern R. Co. v. United States,
222 U. S. 20, 56 L. Ed. 72, 32 S. Ct. 2, the court says:

“We come, then, to the question whether these acts are within the power
of congress under the commerce clause of the constitution, considering
that they are not confined to vehicles used in moving interstate traffic,
but embrace vehicles used in moving intrastate traffic. The answer to this
question depends upon another, which is, is there a real or substantial
relation or connection between what is required by these acts in respect
of vehicles used in moving intrastate traffic, and the object which the
acts obviously are designed to attain; namely, the safety of interstate
commerce and of those who are employed in its movement? Or, stating
it in another way, is there such a close or direct relation or connection
between the two classes of. traffic, when moving over the same railroad,
as to make it certain that the safety of the interstate traffic and of those
who are employed in its movement will be promoted in a real or sub-
stantial sense by applying the requirements of these acts to vehicles
used in moving the traffic which is intrastate as well as to those used
in moving that which is interstate? If the answer to this question, as
doubly stated, be in the affirmative, then the principal question must
bes answered in the same way. * * * Speaking only of railroads
which are highways of both interstate and intrastate commerce, these
things are of common knowledge: Both classes of traffic are at times
carried in the same car, and when this is not the case, the cars in which
they are carried are frequently commingled in the same train and in

14. As declaratory of construction
of prior act.—Johnson v. Southern
Pac. Co., 196 U.S. 1, 49 L. Ed. 363, 25
S. Ct. 158. See also, United States v.
Wheeling, etc, R. Co. (D. C.), 167
Fed. 198.

15. As sufficiently related to be.

within power over interstate com-
merce.—Southern R. Co. vw. United
States, 222° U. S. 20, 56 L. Ed. 72, 32
S. Ct. 2, affirming 164 Fed. 347; Wa-
bash R. Co. v. United States, 93 C.
C. A. 393, 168 Fed. 1.

The amendment of March 2, 1903
(32 Stat. 943, c. 976 [U. S. Comp. St.
Supp. 1907, p. 885]), to the safety ap-
pliance act applies to all cars and
trains operated by a railroad carrier of

interstate commerce over an interstate
highway, irrespective of whether they
are operated between points situated
in the same state, or whether they are
empty, or whether the traffic carried
is intrastate traffic, and is constitu-
tional, Wabash R. Co. v. United
States, 93 C. C. A. 393, 168 Fed. 1.
The decision in Southern R. Co. v.
Snyder, 109 C. C. A. 344, 187 Fed. 492,
that the amendment did not embrace
cars “while actually devoted to purely
intrastate use, even though not set
apart solely and specifically for such
use,” in order to harmonize with the
decision in Employers’ Liability Cases,
207 U. S. 463, 52 L. Ed. 297, 28 S. Ct.
141, must be considered as overruled.
§§ 215-216

THE SAFETY APPLIANCE ACT. 446

the switching and other movements at terminals. Cars are seldom set
apart for exclusive use in moving either class of traffic, but generally
are used interchangeably in moving both; and the situation is much
the same with trainmen, switchmen, and like employees, for they
usually, if not necessarily, have to do with both classes of traffic. Be-
sides, the several trains on the same railroad are not independent in
point of movement and safety, but are interdependent; for whatever
brings delay or disaster to one, or results in disabling one of its opera-
tives, is calculated to impede the progress and imperil the safety of
other trains. And so the absence of appropriate safety appliances from
any part of any train is a menace not only to that train, but to others.
These practical considerations make it plain, as we think, that the
questions before stated must be answered in the affirmative.”

The latest contention passed upon by the Federal Supreme Court was
that this act was unconstitutional if held to apply to an employee injured
while not engaged in interstate commerce, as in the case under considera-
tion, 16 an employee injured when moving cars to be repaired. On this
point in Texas, etc., R. Co. v. Rigsby (U. S.), 36S. Ct. 482, 485, the court

said:

“While it may be conceded, for the purposes of the argument, that the

mere question of compensation to persons injured in intrastate com-
merce is of no concern to congress, it must be held that the liability of
interstate carriers to pay such compensation because of their disregard
of regulations established primarily for safeguarding commerce ‘be-
tween the states is a matter within the control of congress; for unless
persons injured in intrastate commerce are to be excluded from the
benefit of a remedial action that is provided for persons similarly in-
jured in interstate commerce,—a discrimination certainly not required
by anything in the constitution —remedial actions in behalf of intra-
state employees and travelers must either be governed by the acts of
congress or else be left subject to regulation by the several states, with
probable differences in the law material to its effect as regulatory of
the conduct of the carrier. We are therefore brought to the conclusion
that the right of private action by an employee injured while engaged
in duties unconnected with interstate commerce, but injured through a
defect in a safety appliance required by the act of congress to be made
secure, has so intimate a relation to the operation of the act as a regu-
lation of commerce between the states that it is within the constitu-
tional grant of authority over that subject.”

§ 216. Construction.—The object and purpose,!7 of congress in en-
acting the statute and the evil sought to be remedied, are primary in de-

termining its construction.

These being beneficial and remedial, must not

be defeated by a strained construction, 18 or one which would obviously

16. Same—When employee not en-
gaged in interstate commerce.—Texas,
etc., R. Co. v. Rigsby (U. S.), 36 S.
Ct. 482.

17. Construction.—See “Ob-
ject and Purpose,” § 214.

72 LInited States v. Pere Marquette
R. Co. (D. C.), 211 Fed. 220, 223.

ante,

“The beneficial and remedial pur-
poses of these statutes must not be

-defeated by strained construction and

must not be made subordinate to ei-
ther convenience or economy of rail-
road operation.” United States vw.
Pere Marrvette R. Co. (D. C.), 211
Fed. 22%, 223.
447

OBJECT, VALIDITY, AND OPERATION OF ACT.

§ 216

defeat its plain purpose and intent, 1® but rather a construction which would

accomplish the same.2°
sequence results.?1
35, 168 Fed. 175, the court said:

Where neither an absurd nor a mischievous con-
In Atlantic, etc., R. Co. v. United States, 94 C. C. A.

“To sustain the contention of the defendant company as to the proper

construction to be placed upon the provisions of this act would be to
render the act nugatory, while on the other hand, if we construe it in
accordance with the well-established rules in such cases, we afford life
and vitality to the law and thus give expression to the legislative will.
In other words, if congress had the power, in the first instance, to leg-
islate so as to regulate the conduct of railroads for the protection of
employees and in the interest of the traveling public, then it must be
admitted that it has not, in the passage of this law, transcended its limi-
tation, and any construction short of holding the act to be absolute
would leave undisturbed the situation as it existed prior to its enact-
ment, and it would be difficult to imagine a state of facts upon which
railroads would be liable for a penalty or where an employee would be
able to recover in an action instituted to recover damages for injuries
incurred on account of failure to perform the duties imposed by the
statute. It was the manifest intention of congress, in the enactment
of this statute, to require all common carriers engaged in interstate
commerce to keep their cars and engines at all times equipped with
proper safety appliances. The degree of diligence required by the
statute is of the highest order, and the duty thus imposed is absolute
and unconditional. Therefore any failure on the part of a railroad to
comply with its requirements must necessarily subject the railroad
company to the penalty imposed.”

19. Atlantic, etc, R. Co. v. Urited
States, 94 C. C. A. 35, 168 Fed. 175;
Southern R. Co. v. Snyder, 109 C. C.
A. 344, 187 Fed. 492; United States v.
Great Northern R. Co. (C. C. A.), 229
Fed. 927; Mobile, etc., R. Co. v. Brom-
berg, 141 Ala. 258, 37 So. 395.

20. Johnson v. Southern Pac. Co.,
196 U. S. 1, 49 L. Ed. 363, 25 S. Ct.
158; Chicago, etc.,.R. Co. v. Voelker,
65 C. C. A. 226, 129 Fed. 522, 70 L.
R. A. 264; United States v. Central,
etc, R. Co. (D. C.), 157 Fed. 893;
United States v. St. Louis, etc, R.
Co. 106 C. C. A. 230, 184 Fed. 28;
United States v. Chicago, etc., R. Co.
(D. C.), 149 Fed. 486; United States
v. Southern R. Co. (D. C.), 135 Fed.
122, 127; United States v. Southern R.
Co. (D. C.), 170 Fed. 1014; Atlantic,
etc., R. Co. v. United States, 94 C. C.
A. 35, 168 Fed. 175, affirming 153 Fed.
918; United States v. Chicago, etc. R.
Co. (D. C.), 173 Fed. 684. See, also,
Pennell vw. Philadelphia, etc., R. Co,
231 U. S. 675, 58 L. Ed. 430, 34 S. Ct.
220; Southern Pac. Co. v. Allen, 48
Tex. Civ. App. 66, 106 S. W. 441.

“A statute, like a contract, must be

‘ gaged in interstate commerce.

held up by the four corners and ex-
amined, and when remedial in its na-
ture, it must be examined in the light
of its history and its purposes, and the
then existing evils, which were to be
corrected, remedied, and prevented.”
United States 7. Chicago, etc., R..Co.
(D. C.), 149 Fed. 486, 487.

“This act of congress is a remedial
statute, and it is the duty of the court
to so construe its provisions as to ac-
complish the intent of congress—to
protect the lives and limbs of men en-
This
intent is shown as well by the title of
the act as by its provisions. The ti-
tle is: ‘An act to promote the safety
of employees and travelers upon rail-
roads.’” United States wv. Central,
etc, R. Co. (D. C.), 157 Fed. 893, 894.

The undoubted purpose of congress
in enacting the safety appliance laws
was humanitarian, and the act should
not be frittered away by judicial con-
struction. United States 7. Chicago,
etc., R. Co. (D. C.), 149 Fed. 486.

21. United States v7. Baltimore, etc.,
R. Co. (D. C.), 184 Fed. 94.
§ 216

THE SAFETY APPLIANCE ACT.

448

Even though the act be regarded as penal, it is still remedial and the de-
sign to give relief being more dominant than to inflict punishment, it should

control.22

The rule of strict construction of a penal statute however, only

prohibits the courts by construction from ingrafting upon a statute offenses
which it was not the intention of the law-making power should be em-
braced within its provisions.23 In Johnson v. Southern Pac. Co., 196 U. S.
1, 49 L. Ed. 363, 25 S. Ct. 158, the court said:

“Moreover, it is settled that ‘though penal laws are to be construed

strictly, yet the intention of the legislature must govern in the construc-
tion of penal as well as other statutes; and they are not to be construed
so strictly as to defeat the obvious intention of the legislature.’ United
States v. Lacher, 134 U.S. 624, 33 L. Ed. 1080, 10 S. Ct. 625. In that
case we cited and quoted from United States v. Winn, 3 Sumn. 209,
Fed. Cas. No. 16,740, in which Mr. Justice Story, referring to the rule
that penal statutes are to be construed strictly, said: ‘I agree to that
rule in its true and sober sense; and that is, that penal statutes are not
to be enlarged by implication, or extended to cases not obviously within
their words and purport. But where the words are general,.and include
various classes of persons, I know of no authority which would justify
the court in restricting them to one class, or in giving them the nar-
rowest interpretation, where the mischief to be redressed by the statute
is equally applicable to all of them. And where a word is used in a
statute which has various known significations, I know of no rule that
requires the court to.adopt one in preference to another, simply be-
cause it is more restrained, if the objects of the statute equally apply
to the largest and broadest sense of the word. In short, it appears to
me that the proper course in all these cases is to search out and follow
the true intent of the legislature, and to adopt that sense of the words
which harmonizes best with the context, and promotes in the fullest

manner the apparent policy and objects of the legislature.

»9

In order that a strict construction should be placed on the act, it has been

22. Penal statutes requiring strict
construction.—United States wv. Chi-
cago, etc., R. Co. (D. C.), 173 Fed. 684,
685; St. Louis, etc. R. Co. v. United
States, 106 C. C. A. 136, 183 Fed. 770;
Johnson v. Southern Pac. Co., 196 U.
S. 1, 49 L. Ed. 363, 25 S. Ct. 158, re-
versing 117 Fed. 462, 54 C. C. A. 508.
See, also, United States v. St. Louis,
etc, R. Co., 106 C. A. 230, 184
Fed. 28.

“The primary object of the act was
to promote the public welfare by se-
curing the safety of employees and
travelers, and it was in that aspect
remedial, while for violations a pen-
alty of one hundred dollars, recovera-
ble in a civil action, was provided for,
and in that aspect it was penal. But
the design to give relief was more
dominant than to inflict punishment.”
Johnson v. Southern Pac. Co., 196 U.
S. 1, 49 L. Ed. 363, 25 S. Ct. 158, re-
versing 117 Fed. 462, 54 C. C. A. 508.

23. Johnson v. Southern Pac. Co.,
196 U. S. 1, 49 L. Ed. 363, 25 S. Ct.
158; United States v. Chicago, etc., R.
Co. (D. C.), 149 Fed. 486; United
States v. St. Louis, etc, R. Co., 106
C. C. A. 230, 184 Fed. 28; Wabash R.
Co. v. United States, 93 C. C. A. 393,

168 Fed. 1; United States wv. Illinois
Cent. R. Co., 101 'C. C. A. 15, 177 Fed.
801.

“The general rule is well settled that
although penal laws and statutes in
derogation of the common law are to
be construed strictly, and not extended
beyond their plain meaning, yet the
intention of the legislature must gov-
ern in the construction of penal as well
as other statutes, and they are not
to be construed so strictly as to de-
feat the obvious intention of the leg-
islature.” United States v. Illinois
Cent. R. Co., 101 C. C. A. 15, 177 Fed.
801.
449 OBJECT, VALIDITY, AND OPERATION OF ACT. § 216

a

contended that all statutes in derogation of the common law should be so
construed. But the dogma as to the strict construction of statutes in dero-
gation of the common law, only amomnts ta a recognition of a presumption
against an intention to change existing law, and there is no doubt of such
intention under this act. However, even conceding that statutes in deroga-
tion of the common law are to be construed strictly, they are also to be
construed sensibly, and with a view to the object aimed at by the legislature
if that is clearly revealed by the act as a whole.?4

A survey of the entire statute leaves no room to doubt that all violations
thereof are put in the same category, and in its construction that whatever
properly would be deemed a violation in an action to recover for personal
injuries is to be deemed equally a violation in an action to recover a pen-
alty.25 And there is no constitutional obstacle in the way of giving to the
act in its remedial aspect as broad an application as was accorded to its
penal provisions.2® The several sections of the act are framed upon the
same general plan, and, notwithstanding any minor differences in their
language, a declaration by the Supreme Court of the United States that
one of them is intended to impose upon the carrier the absolute duty of
keeping in good repair the equipment therein required, irrespective of any
question of negligence, determines that a like interpretation is to be given to
the others.27_ In United States v. Pere Marquette R. Co. (D. C.), 211 Fed.
220, 223, the court said:

“Should the statutory requirement concerning the use, connection, and
operation of train brakes be given a different construction or interpre-
tation from that which has been applied by the courts to the provisions
relating to car coupling apparatus? Clearly not. The two sections of
the statute are identical in the form of language employed, in legisla-
tive intent, in remedial purpose, and in the mandatory obedience thereto
which is required; the only difference being that in the one the unit is
a train or combination of cars, and in the other a single car.”

Where there is no express or implied qualification or exception, in the
statute, it is not for the courts to introduce one which congress did not see
fit to make; ?8 though where a custom of railroads has the approval and

27. Same construction for all sec-

24. Derogation of common law | L
tions.—United States v. Pere Mar-

Johnson v. Southern Pac. Co., 196 U.

S. 1, 49 L. Ed. 363, 25 S. Ct. 158, re-
versing 117 Fed. 462, 54 C. C. A. 508;
Wabash R. Co. v. United States, 93
C. C. A. 393, 168 Fed. 1; United States
v. Illinois Cent. R. Co., 101 C. C. A.
15, 177 Fed. 801.

25. Same construction in actions for
damages as for penalties.—Chicago,
etc, R. Co. v. United States, 220 U.
S. 559, 55 L. Ed. 582, 31 S. Ct. 612,
affirming 95 C. C. A. 642, 170 Fed. 556,
156 Fed. 180; United States v. Atchi-
son, etc., R. Co., 90 C. C. A. 327, 163
Fed. 517 (150 Fed. 442, reversed).

26. Texas, etc., R. Co. v. Rigsby (U.
S.), 36 S. Ct. 482, 485.

Fed Act—29

quette R. Co. (D. C.), 211 Fed. 220;
Brinkmeier v. Missouri Pac. R. Co.,
81 Kan. 101, 105 Pac. 221, affirmed in
32 S. Ct. 412. The first paragraph of
the syllabus in Missouri Pac. R. Co.
v. Brinkmeier, 77 Kan. 14, 93 Pac. 621,
overruled.

28. Implying exceptions.—Virginian
R. Co. v. United States, 139 C. C. A.
278, 223 Fed. 748; United States v.
Baltimore, etc., R. Co. (D. C.), 184 Fed.
94; United States v. Colorado, etc., R.
Co., 85 C. C. A. 27, 157 Fed. 321, 15
L. R. A, N. S., 167, 13 Am. & Eng.
Ann. Cas. 893.
450

§ 216 THE SAFETY APPLIANCE ACT.

acquiescence of the interstate commerce commission, while it will not ex-
cuse a violation of the statute it is persuasive of the meaning thereof.?°

The courts in construing the act as imposing an absolute duty on the
carriers were met by the contention that such a construction works a hard-
ship. But this contention applies with equal force to any statute which
undertakes to control the affairs of individuals or corporations in this way,
but in the light of past experience it is thought that this is the only method
by which dangers incident to this kind of employment can be minimized.
On contemplation of the vast number of accidents resulting from the op-
eration of railroad trains not properly equipped with safety appliances, one
is forced to admit the wisdom and fairness of legislation of this kind. It
has been the policy of our lawmakers, both state and national, to grant
railroad and other public corporations certain privileges not enjoyed
by private individuals; and, while this is a wise policy and has met with
general approval, it is likewise proper that due regard should be had for the
rights of those employed by such corporations in performing duties
that are necessarily dangerous in their character, and it cannot be said
to be an unreasonable provision to require railroad companies, en-
joying privileges thus conferred upon them, to manage and operate
their engines and cars so as to minimize the risk incident to travel or
employment.2° And whether it makes a hardship or not, it was within the
province of congress to so enact and until congress changes the law the
courts must hold to its meaning. In St. Louis, etc., R. Co. v. Taylor, 210
U.S. 281, 52 L. Ed. 1061, 28 S. Ct. 616, the court said:

“The argument of hardship is plausible only when the attention is di-
rected to the material interest of the employer to the exclusion of the
interests of the employee and of the public. Where an injury happens
through the absence of a safe drawbar there must be hardship. Such
an injury must be an irreparable misfortune to someone. If it must
be borne entirely by him who suffers it, that is a hardship to him. If
its burden is transferred, as far as it is capable of transfer, to the em-
ployer, it is a hardship to him. It is quite conceivable that congress,

29. Customs approved by interstate
commerce commission.— Pennell v.
Philadelphia, etc., R. Co., 231 U. S. 675,
58 L. Ed. 430, 34 S. Ct. 220.

30. Hardship imposed by requiring
absolute compliance.—Atlantic, etc., R.
Co. v. United States, 94 C. C. A. 35,
168 Fed. 175, affirming 153 Fed. 918.

81. United States v. Baltimore, etc.,
R. Co. (D. C.), 170 Fed. 456. See
also, San Antonio, etc., R. Co. v. Wag-
ner (Tex. Civ. App.), 166 S. W. 24,
writ of error denied in 170 S. W. xviii,
no op., affirmed in 36 S. Ct. 626.

“In arriving at this conclusion, I have
considered the question of hardship
that has been suggested upon part
of the railroad company. *

There is no more hardship on the part

of the railroad company than there is
on the part * * of a licensed sa-
loon keeper, who inquires of a minor
if he is of full age before he furnishes
him with liquor, and is informed that
he is of full age; for that licensed sa-
loon keeper, although he was deceived
by the man who received the drink, is .
held under the law to be liable. It
was his duty to take care of that. And
the question of hardship upon the rail-
road company, * * is not a mat-
ter to be considered in this case at all,
because the act of congress has speci-
fied what the railroad company was to
do in order to change the conditions
that previously existed.” United States
v, Baltimore, etc, R. Co. (D..C.), 170
Fed. 456, 458.
451 OBJECT, VALIDITY, AND OPERATION OF ACT. § 216

contemplating the inevitable hardship of such injuries, and hoping to
diminish the economic loss to the community resulting from them,
should deem it wise to impose their burdens upon those who could
measureably control their causes, instead of upon those who are, in the
main, helpless in that regard.”

Nor will the difficulty of equipping cars with appliances as provided in
the act excuse a failure to do so. This merely asserts that the statute may
be violated with impunity if only the railroads find its provisions onerous.3?

Though it has been held that the interstate commerce act 33 where it de-
fines a common carrier should control in the interpretation of the same terms
of this act,34 yet it would seem upon good reason to be the contrary, as
the rule in pari materia, that the language of statutes upon the same or
similar subjects should have like interpretation, is inapplicable where the
provisions of the later statute are positive and explicit, and also where the
subjects of the statutes, the mischiefs at which they are leveled, and the
remedies so provided are radically different.25 In Pacific Coast R. Co. v.
United States, 98 C. C. A. 31, 173 Fed. 448, the court said:

“Tt is true that the interstate commerce act is expressly limited in its ap-
plication to certain defined classes of interstate commerce. But we are
unable to discover in that fact any reason for saying that the safety
appliance act was intended to be similarly limited. If such was the in-
tention of congress, the reasonable inquiry is: Why was it not so ex-
pressed in terms? Instead of such an express limitation, we find in
the act the broad declaration that ‘it shall apply to all railroads engaged
in interstate commerce. What warrant have we for holding that the
act does not mean what it says? The omission to limit its application
as the interstate commerce act was limited is persuasive evidence of ‘the
intention of congress to make it more comprehensive than that act.
In the nature of the legislation itself, there was no reason to make it
less comprehensive than it was made. The evil intended tn be remedied
by the act existed in the operation of all railroads. The power of con-

. gress to remedy it extended to all railroads engaged in interstate com-
merce, and it would be unreasonable to suppose that congress intended
to withhold the benefit of the remedy from the operatives of any road
concerning which it had the power to legislate.”

32. Difficulty of Compliance.—Spo-
kane, etc., R. ‘Co. v. United States (U.
5), 26 S. Ct. 66. : :

33. With statutes in pari materia.
Act Fed. 4, 1887, c. 104, 24 Stat. 379
[U. S. Comp. St. 1904, p. 3154].

34. United States v. Geddes, 65 C. C.
A. 320, 131 Fed. 452, affirming 180 Fed.
480. See also, Gray v. Louisville, etc.,
R. Co. (C. C.), 197 Fed. 874.

35. United States v. Colorado, etc.,
R. Co. 85 C. C. A. 27, 157 Fed. 321,
15 L. R. A, N. S., 167, 13 Am. & Eng.
Ann. Cas. 893. See, also, Pacific Coast
R. Co. v. United States, 98 C. C. A. 31,
173 Fed. 448.

“The interstate commerce act [Feb.
4, 1887, c. 104, 24 Stat. 379, U. S. Comp.

St. 1901, p. 3154], does not appear to
us to define common carriers engaged
in interstate commerce by railroad, but
simply to apply the provisions of that
act to the members of a specified class
of these carriers, the fact that the in-
terstate commerce act is not in pari
materia with the safety appliance acts,
either in its subject-matter, in the evils
it assails, or in the remedies it pro-
vides, so that neither its language nor
the construction thereof is opposite to
or controlling of the terms or of the
interpretation of the latter act.”
United States v. Colorado, etc., R. Cos,
85 C. C. A. 27, 157 Fed. 321, 15 L. R.
A, N. S., 167, 13 Am. & Eng. Ann.
Cas. 893.
§§ 216-217 THE SAFETY APPLIANCE ACT. 452

The amendment of 1903, there being no doubt of the meaning of the
prior law, subsequent legislation cannot be regarded as intended to operate
to destroy it. Indeed, the latter act is affirmative and declaratory; and, in
effect, only construed and applied the former act.2® In Chicago, etc., R.
Co. uv. United States, 93 C. C. A. 450, 168 Fed. 236, 21 L. R. A., N. S., 690,
when reversing 157 Fed. 616, the court said:

“The amendment of 1903 (32 Stat. 943) had three objects: First, to
extend the safety appliance act to traffic in the District of Columbia and
‘the territories; second, to remove the doubt as to the meaning of the
term ‘cars,’ as used in the act, created by the decision of this court in
the Johnson Case, 54 C. C. A. 508, 117 Fed. 462, third, to enlarge the
scope of the safety appliance act, so as to include not only ‘the cars,
locomotives, tenders, and similar vehicles,’ etc., therein referred to,
but also to embrace ‘all other locomotives, tenders, cars, and similar
vehicles used in connection therewith.’ ”

Section 3 of the amendment of 1910, authorizing the Interstate Commerce
Commission to establish uniform equipment over all railroads and to pro-
vide a time within which to establish this uniform equipment, did not operate
to suspend § 2 of the original act which provided that all cars should be
equipped with certain appliances without regard to uniformity and fixed a
time when it should become effective, namely July 1, 1911.37

§ 217. Nature of Duty Imposed.—The duty imposed by the statute
is absolute whether it be an action to recover damages for injury or death
based on the neglect of the carrier to provide the appliances therein re-
quired, 38 or to recover the penalties imposed for a failure to comply with its

36. Amendment of 19038, declaratory
of construction—Johnson v. Southern
Pac. Co, 196 U. S. 1, 49 L. Ed. 363,
25 S. Ct. 158. See also, United States
v. Chicago, etc. R. Co. (D. C.), 149
Fed. 486.

37. Amendment of 1910, as suspend-
ing time of operation.—Coleman v. II-
linois Cent. R. Co. (Minn.), 155 N. W.
763.

88. Recovery of injuries.—United
States—St. Louis, etc, R. Co. v. Tay-
lor, 210 U. S. 281, 52 L. Ed. 1061, 28
S. Ct. 616; Delk v. St. Louis, etc., R.
Co., 220 U. S. 580, 55 L. Ed. 590, 31
S. Ct. 617, reversing 86 C. C. A. 95,
158 Fed. 931; Smith v. Atlantic, etc.,
R. Co., 127 C. C. A. 311, 210 Fed. 761;
Johnson v. Great Northern R. Co., 102
Cc. C. A. 89, 178 Fed. 643; Donegan v.
Baltimore, etc., R. Co. 91 C. C. A. 555,
165 Fed. 869; Great Northern R. Co.
7. Otos, 239 U. S. 349, 36 S. Ct. 124;
Texas, etc., R. Co. v. Rigsby (U. S.),
36 S. Ct. 482; Spokane, etc. R. Co. wv.
Campbell (U. S.), 36 S. Ct. 683.

Florida—Atlantic, etc., R. Co. w.
Whitney, 62 Fla. 124, 56 So. 937.

Illinois —Chicago, etc, R. Co. w.
Walters, 217 Ill. 87, 75 N. E. 441;
Luken v. Lake Shore, etc, R. Co., 248
Ill. 377, 94 N. E. 175, 21 Am. & Eng.
Ann. Cas. 82; Lucas v. Peoria, etc., R.
Co., 171 Ill. App. 1.

Kansas.—Brinkmeier v. Missouri Pac.
R. Co., 81 Kan. 101, 105 Pac. 221, af-
firmed in 32 S. Ct. 412; S. C., 77 Kan.
14, 93 Pac. 621, overruled.

Minnesota—Popplar v. Minneapolis,
etc., R. Co., 121 Minn. 413, 141 N. W.
798, Ann. Cas. 1914D, 383, affirmed in
35 S. Ct. 609; Burho v. Minneapolis,
etc., R. Co., 121 Minn. 326, 141 N. W.
300; Willett v. Illinois Cent. R. Co.,
122 Minn, 513, 142 N. W. 883; Coleman
v. Illinois Cent. R. Co. (Minn.), 155 N.
W. 763.

Missouri—Noel v. Quincy, etc. R.
Co. (Mo. App.), 182 S. W. 787; Moore
v. St. Joseph, etc., R. Co. (Mo.), 186 S.
W. 1035.

New Jersey—Parker v. Atlantic, etc.,
R. Co., 87 N. J. L. 148, 93 Atl. 574.

New Mexico—Thayer v. Denver,
etc., R. Co. (N. Mex.), 154 Pac. 691.

South Carolina—Steele v Atlantic,
453

OBJECT, VALIDITY, AND OPERATION OF ACT.

§ 217

provisions.2® In Chicago, etc., R. Co. v. United States, 220 U. S. 559, 55 L.
Eid. 582, 31 S. Ct. 612, affirming 170 Fed. 556, 95 C. C. A. 642; 156 Fed. 180,

the court said:

“The Taylor Case (210 U. S. 281, 52 L. Ed. 1061, 28 S. Ct. 616), was a
strictly civil proceeding, being an action by an individual to recover
damages for a personal injury alleged to have been caused by the
negligence of a corporation; whereas, the present action is to recover
a penalty. This difference, it is suggested, will justify a re-examina-

etc., R. Co. (S. C.), 87 S. E. 639.

Texas.—Missouri, etc., R. Co. v. Bar-
rington (Tex. Civ. App.), 173 S. W.
595; Missouri, etc., R. Co. v. Plemmons
(Tex. Civ. App.), 171 S. W. 259; Gal-
veston, etc., R. Co. v. Kurtz (Tex. Civ.
App.), 147 S. W. 658, writ of error de-
nied in 150 S. W. xix, 106 Tex. 627,
no op.

Wisconsin—Calhoun v. Great North-
ern R. Co. (Wis.), 156 N. W. 198.

“The question whether the defective
condition of the ladder was due to de-
fendant’s negligence is immaterial,
since the statute imposes an absolute
and unqualified duty to maintain the
appliance in secure condition.” Texas,
etc, R. Co. v. Rigsby (U. S.), 36 S.
Ct. 482, 485.

39. Recovery of penalties——Chicago,
etc., R. Co. v. United States, 220 U. S.
559, 55 L. Ed. 582, 31 S. Ct. 612, affirm-
ing 95 C. C. A. 642, 170 Fed. 556; 156
Fed. 180; United States wv. Baltimore,
etc, R. Co. (D. C.), 170 Fed. 456;
United States v. Atchison, etc., R. Co.
(D. C.), 167 Fed. 696; Atlantic, etc., R.
Co. v. United States, 94 C. C. A. 35,
168 Fed. 175, affirming 153 Fed. 918;
United States v. Erie R. Co. (D. C.),
166 Fed. 352; United States v. South-
ern Pac. Co. (D. C.), 167 Fed. 699;
United States v. Trinity, etc., R. Co.,
128 C. C. A. 120, 211 Fed. 448; United
States v. Pere Marquette R. Co. (D.
C.), 211 Fed. 220; United States vw.
Atchison, etc., R. Co., 90 C. C. A. 327,
163 Fed. 517, reversing 150 Fed. 442;
United States v. Denver, etc., R. Co.,
90 C. C. A. 329, 163 Fed. 519; United
States v. Chicago, etc., R. Co. (D. C.),
162 Fed. 775; United States v. Phila-
delphia, etc., R. Co. (D. C.), 160 Fed.
696; United States 7. Central, etc, R.
Co. (D. C.), 157 Fed. 893; United
States v. Great Northern R. Co. (D.
C.), 150 Fed. 229; Norfolk, etc., R. Co.
v. United States, 112 C. C. A. 46, 191
Fed. 302; United States v. Southern R.
Co. (D. C.), 170 Fed. 1014; United
States v. Southern Pac. Co., 94 C. C. A.
629, 169 Fed. 407; Wabash R. Co. wv.
United States, 97 C. C. A. 284, 172 Fed.
864; Norfolk, etc, R. Co. v. United

States, 101 C. C. A. 249, 177 Fed. 623;
Galveston, etc., R. Co. v. United States,
105 C. C. A. 422, 183 Fed. 579; United
States v. Wheeling, etc. R. Co. (D.
C.), 167 Fed. 198; Atchison, etc. R.
Co. v. United States, 96 C. C. A. 664,
172 Fed. 1021; Chicago, etc., R. Co. wv.
United States, 91 C. C. A. 373, 165 Fed.
423, 20 L. R. A. N. S., 473; Virginian
R. Co. v. United States, 139 C. C. A.
278, 223 Fed. 748; United States wv.
Baltimore, etc., R. Co. (D. C.), 184 Fed.
94; United States v. Philadelphia, etc.,
R. Co. (D. C.), 223 Fed. 215.

“The language of the statute is man-
datory.” United States v. Central, etc.,
R. Co. (D. C.), 157 Fed. 893, 894.

“The circuit court of appeals for the
eighth circuit, in the case of United
States v. Atchison, etc, R. Co., 90 C.
C. A. 327, 163 Fed. 517, held that the
duty placed upon the railroads by the
act is the same in both instances, and
therefore that which would be deemed
a violation in an action to recover
for personal injuries is also to be
deemed a violation in an action to re-
cover the statutory penalty. In that
case the court followed the decision
of the Supreme Court of the United
States in the case of St. Louis, etc., R.
Co. v. Taylor, 210 U. S. 281, 52 L. Ed.
1061, 28 S. Ct. 616, holding that the
duty imposed upon a railroad company
by the safety appliance act is absolute
and unconditional.” Atlantic, etc., R.
Co. v. United States, 94 C. C. A. 35,
168 Fed. 175, affirming 153 Fed. 918.

By “the opinion of the supreme
court in the more recent case of St.
Louis, etc. R. Co. v. Taylor, 210 U. S.
281, 52 L. Ed. 1061, 28 S. Ct. 616; S. C.,
71 Ark. 445, 78 S. W. 220; 83 Ark. 591,
98 S. W. 958), it is now authoritatively
settled that the duty of the railway com-
pany in situations where the congres-
sional law is applicable is not that of
exercising reasonable care in maintain-
ing the prescribed safety appliance in
operative condition, but is absolute.”
United States v. Atchison, etc. R. Co.,
90 C. C. A. 327, 163 Fed. 517 (150 Fed.
442, reversed.)
S27

THE SAFETY APPLIANCE ACT. 454

tion, upon the principle, of the rvle announced in the Taylor Case.”
“Tf the court was wrong in the Taylor Case, the way is open for such
an amendment of the statute as congress may, in its discretion, deem
propet. This court ought not now disturb what has been so widely ac-
cepted and acted upon by the courts as having been decided in that case.
A contrary course would cause infinite uncertainty, if not mischief, in
the administration of the law in the federal courts. To avoid misap-
prehension, it is appropriate to say that we are not to be understood as
questioning the soundness of the interpretation heretofore placed by
this court upon the safety appliance act. We only mean to say that
until congress, by an amendment of the statute, changes the rule an-
nounced in the Taylor Case, this court will adhere to and apply that
rule.”

Knowledge and Intent.—It being thus an absolute duty, the existence
of any wrongful intent on the part of the company, ‘4° or whether it knew
or not that the statutory requirements were not complied with are not es-
sential to liability.41 In Chicago, etc, R. Co. v. United States, 220 U. S.
559, 55 L. Ed. 582, 31 S. Ct. 612, affirming 95 C. C. A. 642, 170 Fed. 556;

156 Fed. 180, the court said:

“In Halsted v. State, 41 N. J. L. 552, 591, 32 Am. Rep.. 247, the sug-

gestion was made that, in determining the mind of the legislature, the
dictates of natural justice should be the ground of decision, and not
simply regarded as a mere circumstance of weight. But that court
said: ‘As there is an undoubted competency in the lawmaker to de-
clare an act criminal, irrespective of the knowledge or motive of the
doer of such act, there can be, of necessity, no judicial authority hav-
ing the power to require, in the enforcement of the law, such knowl-
edge or motive to be shown. In such instances the entire function of
the court is to find out the intention of the legislature, and to enforce

40. Intent.—Chicago, etc., R. Co. v.
United States, 220 U. S. 559, 55 L. Ed.
582, 31 S. Ct. 612, affirming 170 Fed.
556; United States v. Great Northern
R. Co. (D. C.), 150 Fed. 229; Norfolk,
etc., R. Co. v. United States, 101 C. C.
A. 249, 177 Fed. 623; United States v.
Southern R. Co. (D. C.), 135 Fed. 122.
See also, Luken v. Lake Shore, etc., R.
Co., 248 Ill. 377, 94 N. E. 175, 21 Am.
& Eng. Ann. Cas. 82.

41. Knowledge. —-Chicago, etc. R.
Co. v. United States, 220 U. S. 559, 55
L. Ed. 582, 31 S. Ct. 612, affirming 170
Fed. 556; United States v. Trinity, etc.,
R. Co., 128 C. C. A. 120, 211 Fed. 448;
United States v. Southern Pac. Co. (D.
C.), 154 Fed. 897; United States v.
Southern R. ‘Co. (D. C.), 135 Fed. 122;
United States v. Chicago, etc., R. Co.
(D. C.), 149 Fed. 486; United States
v. Great Northern R. Co. (D. C.), 150
Fed. 229; United States v. Atlantic,
etc, R. Co. (D. C.), 153. Fed. 918;
Nashville, etc, Railway v. Henry, 158
Ky. 88, 164 5S. W. 310.

“Bear in mind that under the safety
appliance act of 1893, and the amend-
ments, ignorance of defects does not
excuse.” United States v. Trinity, etc.,
R. Co., 128 C. Cc. A. 120, 211 Fed. 448.

“The power of the legislature to de-
clare an offense, and to exclude the
elements of knowledge and due dili-
gence from any injury as to its com-
mission, can not * * * be ques-
tioned.” Chicago, etc, R. Co. w.
United States, 220 U. S. 559, 55 L. Ed.
582, 31 S. Ct. 612.

“The rule generally is, as contended
by defendant’s counsel, that guilty
knowledge is necessary to constitute
an offense. But the statutes in ques-
tion make no such requirements.”
United States v. Chicago, etc., R. Co.
(D. C.), 149 Fed. 486, 491.

Contra—United States v. Atchison,
etc, R. Co. (D. C.), 150 Fed. 442;
Southern Pac. Co. uv. Allen, 48 Tex.
Civ. App. 66, 106 S. W. 441.
OBJECT, VALIDITY, AND OPERATION OF ACT.

grr

the law in absolute conformity to such intention.’ So, in Greenleaf on
Evidence: ‘Where a statute commands that an act be done or omitted,
which, in the absence of such statute, might have been done or omitted
without culpability, ignorance of the fact or state of things contem-
plated by the statute, it seems, will not excuse its violation. Thus, for
example, where the law enacts the forfeiture of a ship having smug-
gled goods on board, and such goods are secreted on board by some
of the crew, the owner and officers being alike innocently ignorant
of the fact, yet the forfeiture is incurred, notwithstanding their igno-
rance. Such is also the case in regard to many other fiscal, police, and
other laws and regulations, for the mere violation of which, irrespec-
tive of the motives or knowledge of the party, certain penalties are
enacted; for the law, in these cases, seems to bind the party to know
the facts and to obey the law at his peril.’ 3 Greenl. 16th ed. §§ 21,
26, and notes.”

And on the same point, in United States v. Southern Pac. Co. (D. C.), 154

Fed. 897, 899, the court said:

“It is urged that the cars were so moved by the defendant company

without knowledge of the defects, and that that fact ought to relieve
it from liability. This is resting the case upon the degree of diligence
observed by the defendant company in ascertaining the fact of the
existence of the defects. But the proposition cannot be maintained.
The very question has been decided by Humphrey, District Judge, nt
United States v. Southern R. Co. (D. C.), 135 Fed. 122. *

And it was specifically held that due diligence in keeping the mode
in proper repair was not an element of defense. If such an act was
not cause for defense in that case, lack of knowledge that the appa-
ratus was defective would not constitute a defense in this. The rail-
road companies are charged, as I have shown, with the duty of haul-
ing only such cars as are provided with automatic couplers in suit-
able repair, so as to be operative without the necessity of employees
going between the cars; and it would go far to subvert the law, and
the purpose thereof, if they were permitted to say that they had no
knowledge of the defect, and that therefore they were not liable under
the act. The companies must ascertain for themselves, and at their
peril, whether, or not they have taken up or are hauling cars with de-
fective couplers. Their intention to do right does not relieve them.
* %* > JT hold, therefore, that want of knowledge of the defects on
the part of the defendant company does not constitute a defense.”

Reasonable Care and Diligence.—Neither would the fact that the
railroad used due care and reasonable diligence to comply with the stat-

ute, 42 be sufficient as a defense.

42. Reasonable care and diligence.
United States—St. Louis, etc., R. Co. v.
Taylor, 210 U. S. 281, 52 L. Ed. 1061,
28S. Ct. 616; Delk v. St. Louis, etc.,
R. Co., 220 U. S. 580, 55 L. Ed. 590,
31 S. Ct. 617, reversing 86 C. C. A. 95,
158 Fed. 931; Chicago, etc., R. Co. v.
United States, 220 U. S. 559, 55 L. Ed.
582, 31 S. Ct. 612, affirming 95 C. C. A.
642, 170 Fed. 556; United States v.

In United States v. Atchison, etc., R.

Southern R. Co. (D. C.), 170 Fed. 1014;
United States v. Philadelphia, etc, R
Co. (D. C.), 160 Fed. 696; United
States v. Chicago, etc., R. Co. (D. C.),
162 ‘Fed. 775; United States v. South-
ern Pac. Co., 94 C. C. A. 629, 169 Fed.
407; United States v. Wheeling, etc.,
R. Co. (D. C.), 167 Fed. 198; United
States v. Atchison, etc., R. Co. (D. C.),
167 Fed. 696; United States 7. Denver,
e217

THE SAFETY APPLIANCE ACT.

456

Co., #3 the common-law rules in respect of the exercise of reasonable care
by the master, and of the nonliability of the master for the negligence of a
fellow servant, were invoked by the railway company, and were held by

the court to be superseded by the statute.

etc., R. Co., 90 C. C. A, 329, 163 Fed.
519; Chicago, etc., R. Co. v. United
States, 91 C. C. A. 373, 165 Fed. 423,
20 L. R. A., N. Si, 473; United States
v. Baltimore, etc., R. Co. (D. C.), 170
Fed. 456; United States v. Pere Mar-
quette R. Co. (D. C.), 211 Fed. 220;
Atchison, etc., R. Co. v. United States,
96 C. C. A. 664, 172 Fed. 1021; ee
R. Co. vw. United States, 97 en

284, 172 Fed. 864; Norfolk, etc., R “eet
v. United States, 112 C. C. A. 46, 191
Fed. 302; S. C., 101 C. C. A. 249, 177
Fed. 623; United States v. Atchison,
etc., R. Co., 90 C. C. A. 327, 163 Fed.
517, reversing 150 Fed. 442, Donegan v.
Baltimore, etc., R. Co., 91 C. C. A. 555,
165 Fed. 869. See also, United States
v. Indiana Harbor R. Co. (D. C.), 157
Fed. 565.

Missouri—Noel v. Quincy, etc., R.
Co. (Mo. App.), 182 S. W. 787; Moore
v. St. Joseph, etc., R. Co. (Mo.), 186 S.
W. 1035.

South Carolina—Steele v. Atlantic,
etc. R. Co. (S. C.), 87 S. E. 639.

Texas —Missouri, etc, R. Co. vw.
Plemmons (Tex. Civ. App.),,-171 S. W.
259; Missouri, etc., R. Co. v. Barring-
ton (Tex. Civ. App.), 173 S. W. 595;
Galveston, etc., Co. v. Kurtz (Tex.
Civ. App.), 147 S. W. 658, writ of error
denied in 150 S. W. xix, 106 Tex. 627,
no op.

“The duty of railroads under the
statute in question is an absolute duty,
and not one which is discharged by
the exercise of reasonable care or dili-
gence.” Chicago, etc., R. Co. v. United
States, 220 U. S. 559, 55 L. Ed. 582, 31
S. Ct. 612.

The safety appliance act imposes
upon a railroad company an absolute
duty to maintain the prescribed cou-
pling appliances, grabirons, and hand-
holds in operative condition, and is not
satisfied by the exercise of reasonable
care to that end. United States wv.
Baltimore, etc., R. Co. (D. C.), 170 Fed.
456.

If a carrier hauls any cars which
can not be coupled automatically by
reason of the improper equipment or
otherwise, the act is in violation of
the safety appliance act. United States
v. Atchison, etc., R. Co. (D. C.), 167
Fed. 696.

“Railroad companies engaged in
such commerce are required to strictly

While the defective appliance

comply with its provisions and obey
this law. It was therefore the duty
of this defendant, when it received the
various cars described in the petition
to be hauled and used upon its line of
railroad in moving interstate traffic, or
in connection with other cars. that
were so used, to know at its peril that
each of said cars was equipped with

.the safety appliances required by this

law, and if it hauled or used any of
said cars when not so equipped to
move interstate traffic, or in connec-
tion with other cars that were so used,
then it is liable to the penalty of $100
for each and every car described in
some count of the petition that it so
hauled or used.” United States v. Chi-
cago, etc., R. Co. (D. C.), 162 Fed. 775,
778; St. Louis, etc., R. Co. v. Conarty,
106 Ark. 421, 155 S. W. 93, reversed on
other grounds in 238 U. S. 243, 35 S.
Ct. 785; Luken v. Lake Shore, etc., R.
Co., 248 Ill. 377, 94 N. E. 175, 21 Am.
& Eng. Ann. Cas. 82.

“The federal courts, in cases arising
under the federal statute, have by an
almost uniform line of decisions held
that the duty of the carrier is not merely
that of exercising reasonable care in
maintaining the prescribed safety ap-
pliances in an operative condition, but
is absolute.” Luken v. Lake Shore,
etc., R. Co., 248 Ill. 377, 94 N. E. 175,
21 Am. & Eng. Ann. Cas. 82.

“In Galveston, etc. R. Co. v. Kurtz
(Tex. Civ. App.), 147 S. W. 658, writ
of error denied in 150 S. W. xix, 106
Tex. 627, no op. * * * it is held
that * * * ‘railway companies, un-
der these statutes, are required to do
more than exercise ordinary care to

‘have and maintain secure handholds,

etc. They are required to do more
than exercise a high degree of care.
They are required to do all things that
are possible to that end, even if they
have for that purpose to keep inspec-
tors on every train they move.’” Mis-
souri, etc., R. Co. v. Plemmons (Tex.
Civ. App.), 171 S. W. 259, 263.

Contra—United States v. Illinois
Cent. R. Co., 95 C. C. A. 628, 170 Fed.
542; Southern Pac. Co. v. Allen, 48
Tex. Civ. App. 66, 106 S. W. 441.

43. Common law of reasonable care
superseded.—90 C. C. A. 327, 163 Fed.
517.

t
457 OBJECT, VALIDITY, AND OPERATION OF ACT. § 217

in that case was a drawbar, and the action was one to recover damages for
the death of an employee, there is nothing in these differences which dis-
tinguish the case from one to recover penalties for a defective coupler.
As respects the nature of the duty placed upon the railway company, § 5,
relating to drawbars, is the same as § 2, relating to couplers; and § 6, re-
lating to the penalty, is expressed in terms which embrace every violation
of any provision of the preceding sections. Indeed, a survey of the en-
tire statute leaves no room to doubt that all violations thereof are put in
the same category, and that whatever properly would be deemed a violation
in an action to recover for personal injuries is to be deemed equally a vio-
lation in an action to recover a penalty.*4

Even if an employee of the railroad company deliberately puts the ap-
pliances required by the act in a condition which the law undertakes to
prevent, the latter is liable to the penalty for the unlawful act of the em-
ployee, #® but under such circumstances would not be liable in damages.*¢
On the other hand, if the equipment as required by the act is in fact upon
cars, it is not unlawful for the carrier’s employee to fail properly to ad-
just the appliance with which the car has been and is at the time properly
equipped. The act requires equipment, and equipment too, that is capable
of being operated; but no penalty should attach if being there it is not
in fact efficiently operated by those in charge of the train.47

Of Original Equipment and Future Repairs.—The act requires
the common carrier not only once to equip a car used in interstate traffic
with appliances of the kind required, but to keep it so equipped. The duty
imposed cannot be qualified by saying that the carrier, after having once
supplied lawful appliances, is bound to use only a high degree of skill
to maintain them in perfect condition.#§

Delegation.—The duty of seeing that the cars used or hauled on its

44. Chicago, etc. R. Co. v. United
States, 220 U. S. 559, 55 L. Ed. 582, 31
S. Ct. 612, affirming 170 Fed. 556, 95
C. C. A. 642; 156 Fed. 180; United
States v. Atchison, etc., R. Co., 90 C.
C. A. 327, 163 Fed. 517, reversing 150
Fed. 442,

45. Responsible for unlawful act of
employee.—United States v. Southern
Pac. Co. (D. C.), 167 Fed. 699.

46. See Galveston, etc. R. Co. v.
Kurtz (Tex. Civ. App.), 147 S. W. 658,
writ of error denied in 150 S. W. xix,
106 Tex. 627, no op.; Missouri, etc., R.
Co. v. Plemmons (Tex. Civ. App.), 171
S. W. 259.

See also, Smith v. Great Northern R.
Co. (Minn.), 158 N. W. 46, where the
claim was made that an employee had
loosened one end of a handhold but
the jury decided otherwise.

47. Failure of employee to operate
proper equipment.—United States v.
Illinois Cent. R. Co. (D. C.), 156 Fed.
182.

48. Of original equipment and fu-
ture repairs—Delk v. St. Louis, etc.,
R. Co., 220 U. S. 580, 55 L. Ed. 590,
31 S. Ct. 617; United States v. Erie R.
Co. (D. C.), 166 Fed. 352, 354; United
States v. Atchison, etc, R. Co. (D.
C.), 167 Fed. 696; Voelker v. Chicago,
etc, R. Co. (C. C.), 116 Fed. 867, re-
versed on other grounds in 65 C. C. A.
226, 129 Fed. 522, 70 L. R. A. 264; At-
lantic, etc., R. Co. v. Whitney, 65 Fla.
72, 61 So. 179. See also, Southern R.
Co. v. Carson, 194 U. S. 136, 48 L. Ed.
907, 24 S. Ct. 609; St. Louis, etc., R.
Co. v. Taylor, 210 U. S. 281, 52 L. Ed.
1061, 28 S. Ct. 616.

Contra—United States v. Illinois
Cent. R. Co., 95 C. C. A. 628, 170 Fed.
542, :
458

§§ 217-218 THE SAFETY APPLIANCE ACT.

line are equipped according to the statutory requirements, is placed upon
the carrier, and cannot be evaded by assignment or otherwise; and any
action taken by employee to whom such duty has been assigned must be
considered the act of the railroad4® Neither can the railroad by its rules
requiring an employee to report defects escape its duty to make proper
inspection and repair.5°

§ 218. Operation on State Laws.—In the absence of legislation by
congress, the states are not denied the exercise of their power to secure
safety in the physical operation of railroad trains within their territory,
even though such trains are used in interstate commerce. That has been
the law since ‘the beginning of.railroad transportation. It was not intended
that, pending federal action, the use of such agencies, which, unless care-
fully guarded, was fraught with danger to the community, should go un-
regulated, and that the states should be without authority to secure needed
local protection. The requirements of a state, of course, must not be arbi-
trary, or pass beyond the limits of a fair judgment as to what the exigency
demands, but they are not invalid because another state, in the exercise of
a similar power, may not impose the same regulation.5! If there is a con-
flict in such local regulations, by which interstate commerce may be incon-
venienced,—if there appears to be need of standardization of safety appli-
ances, and of providing rules of operation which will govern the entire in-
terstate road, irrespective of state boundaries,—there is a simple remedy;
and it cannot be assumed that it will not be readily applied if there be real
occasion for it. That remedy does not rest in a denial to the state, in the
absence of conflicting Federal action, of its power to protect life and prop-
erty within its borders, but it does lie in the exercise of the paramount au-
thority of congress, in its control of interstate commerce, to establish such
regulations as, in its judgment, may be deemed appropriate and sufficient.
Congress, when it pleases, may give the rule and make the standard to be
observed on the interstate highway.52

By the very nature of things railroads between states are national in
their character, and, when congress determines to assume regulation thereof,
its control must be, and is, exclusive and final. Uniformity of regulation
affecting all the states is not only permissible, but is required. There must

49. Delegation.—Chicago Junction R.
Co. v. King, 94 C. C. A. 652, 169 Fed.
372. See also, St. Louis, etc., R. Co.
v. Taylor, 210 U. S. 281, 52 L. Ed. 1061,
28 S. Ct. 616.

50. Chicago, etc., R. Co. v. Walters,
217 Ill. 87, 75 N. E. 441; Noel v.
Quincy, etc., R. Co. (Mo. App.), 182
S. W. 787. See post, “Duty of Rail-
road,” § 245.

It is the duty of the railroad com-
pany to make proper inspection and
repair and this is one which it owes
to an employee. It could not be dis-

charged by requiring an employee to
himself report defects as they are dis-
covered. Chicago, etc, R. Co. vw.
Walters, 217 Ill. 87, 75 N. E. 441.

51. State legislation—In absence of
congressional action.— Atlantic, etc.,
R. Co. v. Georgia, 234 U. S. 280, 58 L.
Ed. 1312, 34 S. Ct. 829; Southern R.
Co. v. Railroad Comm., 236 U. S. 439,
59 L. Ed. 661, 35 S. Ct. 304.

52. Conflict in state regulations as
showing need of action by congress.
—Atlantic, etc, R. Co. v. Georgia, 234
U.S. 280, 58 L. Ed. 1312, 34 S. Ct. 829.
459 OBJECT, VALIDITY, AND OPERATION OF ACT. § 218

be only one system of rules applicable alike to the whole country, which
congress alone can prescribe.

Interminabte discord would of necessity prevail under our dual system of
government if the power of congress, once assumed, and the regulations
prescribed by it, could be invaded by each and every state through which a
great interstate highway runs. Within the field of congressional power, au-
thorized by the constitution of the United States, the federal power, to be
effective at all, must be supreme in all parts of the United States. This dec-
laration of supremacy as vouchsafed to the federal government is expressed
in article 6, par. 2, of the constitution of the United States, in the following
words: “This constitution, and the laws of the United States which shall
be made in pursuance thereof, and all treaties made, or which shall be made,
under the authority of the United States, 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.” So under
the constitution the nature of that power is such that, when exercised, it is
exclusive, and ipso facto supersedes existing state legislation on the same
subject.53

If congress, under the power granted by the Constitution and under its
police power, has a right to regulate the use of the interstate highways, surely
that right cannot be impaired by any action of a state in conflict with the
rules and regulations established by congress.54

However, the intent to supersede the exercise of the state’s police power
is not to be inferred or presumed from any restricted action by congress,
but only by manifest legislation to that end.55

Liability under Both State and Federal Laws.—A railroad company
is not liable for the penalty imposed by both the federal and a state statute.
It is true that the same act may constitute a criminal offense against two
sovereignties, and that punishment by one does not prevent punishment by
the other. That doctrine is thoroughly established. But, upon an analysis
of the principle on which it is founded, it will be found to relate only to
cases where the act sought to be punished is one over which both sovereign-
ties have jurisdiction. This concurrent jurisdiction may be either because

53. Supremacy of federal laws.— acy of congress in the field of inter-

Southern R. Co. v. Railroad Comm.,
236 U. S. 439, 59 L. Ed. 661, 35 S. Ct.
304; United States v. Southern R. Co.
(D. 'C.), 164 Fed. 347, affirmed in 32 S.
Ct. 2.

54. Not to be impaired by state laws.
—United States v7. Southern R. Co. (D.
C.), 164 Fed. 347, affirmed in 32 S.
Ct. 2; State v. Beaumont, etc., Railroad
(Tex. Civ. App.), 183 S. W. 120.

“Congress, in passing the safety ap-
pliance acts, proceeded under author-
ity given it by the commerce clause of
the federal constitution. The suprem-

state commerce is not now open to
question, and, when it enters this field,
the right of the states to legislate with
respect to the subject-matter covered
by is enactments, or to enforce legis-
lation previously enacted, ceases to
exist.” State v. Beaumont, etc., Rail-
road (Tex. Civ. App.), 183 S. W. 120,
123.

55. Not presumed from restricted ac-
tion.—Atlantic, etc. R. Co. v. Georgia,
234 .U. S. 280, 58 L. Ed. 1312, 34 S.
Ct. 829.
§ 218 THE SAFETY APPLIANCE ACT. 460

the nature of the act is such that at the same time it produces effects re-
spectively within the sphere of state and federal regulation, and thus vio-
lates the laws of both; or where there is his double effect in a matter of
which one can exercise control, but an authoritative declaration that the
paramount jurisdiction of one shall not exclude that of the other. But the
principle that the offender may, for one act, be prosecuted in two jurisdic-
tions, has no application where one of the governments has exclusive juris-
diction of the subject-matter, and therefore the exclusive power to punish.5®

Occupation of Field by Congressional Legislation.—By this act,5”
congress has so far occupied the field of legislation relating to the equip-
ment of freight cars with safety appliances as to supersede exiting and pre-
vent further state legislation on that swbject.58 So state laws cannot
be held to cover cars of an interstate railroad used exclusively in intrastate
business.5®

Congress by enacting this act and excepting therefrom four-wheel cars,
and logging cars, did not intend that these should be left to be covered by
state, legislation, but it is manifest that the intention was that they should
go unregulated. And a state statute covering such cars when used upon a
railroad engaged in interstate commerce cannot be enforced.6®

Congress, of course, could have “circumscribed its regulations” so as to
occupy a limited field. But so far as it did legislate, the exclusive effect of
the safety appliance act did not relate merely to details of the statute and
the penalties it imposed, but extended to the whole subject of equipping
cars with appliances intended for the protection of employees. The states
thereafter could not legislate so as to require greater or less or different
equipment; nor could they punish by imposing greater or less or different
penalties.61 In Cleveland, etc., R. Co. v. Public Service Comm. (Ind.), 108
N. E. 515, the court said:

“The question heretofore has been before this court in a case involving a
failure on the part of a railroad engaged in interstate commerce to pro-
vide grabirons as required by other sections of both the state and fed-

56. Liability under both state and
Federal Laws—Right of two sovereign-
ties to punish for same act.—Southern
R. Co. v. Railroad Comm., 236 U. S.
439, 59 L. Ed. 661, 35 S. Ct. 304.

57. Occupation of field by congres-
sional legislation—March 2, 1893, c.
196, 27 Stat. 531.

58. Same—United States—Southern
R. Co. v. Railroad Comm., 236 U. S.
439, 59 L. Ed. 661, 35 S. Ct. 304; United
States v. Southern R. Co. (D. C.), 164
Fed. 347, affirmed in 32 S. Ct. 2.

Indiana.—Cleveland, etc., R. Co. v.
Public Service Comm. (Ind.), 108 N.
E. 515; Southern R. Co. v. Railroad
Comm. (Ind.), 109 N. E. 759, 760.

Ohio.— Detroit, etc., R. Co. uv. State,

11 0. C. C., N.S. 482, 21-31 O. C. D.
20, affirmed 32 O. St. 60, 91 N. E. 869,
137 Am. St. Rep. 758.

Contra.—Luken v. Lake Shore, etc.,
R. Co., 248 Ill. 377, 94 N. E. 175, 21
Am, & Eng. Ann. Cas. 82. ;

59. Cars exclusively in intrastate
service.—State v. Orange, etc., R. Co.
(Tex. Civ. App.), 181 S. W. 494.

60. State laws covering cars excepted
by act—State v. Beaumont, etc., Rail-
road (Tex. Civ. App.), 183 S. W. 120.

61. Greater or less restrictions, or
penalties, not to be imposed by states.
—Southern R. Co. v. Railroad Comm.,
236 U. S. 439, 59 L. Ed. 661, 35 S. Ct.
304,
461

OBJECT, VALIDITY, AND OPERATION OF ACT. § 218
eral acts. In that case this court upheld the state’s right to enforce its
statute and to recover the penalty it provided. Southern R. Co. w.
Railroad Comm., 179 Ind. 23, 100 N. E. 337. The case was appealed
to the Supreme Court of the United States, which reached a contrary
conclusion. Southern R. Co. v. Railroad Comm., 236 U. S. 439, 59.
L. Ed. 661, 35 S. Ct. 304. In Southern R. Co. v. United States, 222
U.S. 20, 56 L. Ed. 72, 32 S. Ct. 2, it was held that by the amendment of
March 2, 1903 (32 Stat. at L. 943; Comp. St. 1913, § 8613) of § 1 of
the Federal Safety Appliance Act of 1893, such act was made to em-
brace all locomotives, cars, and similar vehicles used on any railway
that is a highway of interstate commerce, and that it is not confined
exclusively to vehicles engaged in such commerce. Following this con-
clusion, it was held in Southern R. Co. v. Railroad Comm., supra, that
congress has so far occupied the field of legislation relating to the
equipment of freight cars with safety appliances as to supersede exist-
ing and to prevent further state legislation on that subject, and that
the. test is not whether the state legislation is in conflict with the details
of the federal law or supplements it, but whether a state has any juris-
diction of a subject over which Congress has exerted its exclusive
control.”

Subjects of Legislation Not Covered.—The decisions, the principle
being expressed in various ways, show that when a state law enacted in the
exercise of its police power affects interstate commerce only indirectly and
incidentally, is passed in good faith and is not directed against interstate
commerce, is an aid to commerce, does not go beyond the necessities of the
case, and does not constitute an arbitrary or unreasonable interference with
commerce between the states, is appropriate to and has a real substantial
relation to an object as to which the state is competent to legislate, and does
not conflict with the expressed or presumed will of ‘Congress on the subject,
it is invariably sustained.62 Thus there is nothing in the act of 1893 cover-
ing a subject of train crews, and state legislation ®* which required that
certain railroads operate their trains with a crew of not less than an engi-

62. Subjects of legislation not cov-
ered.—Pertinent illustrations, and there
are many others, are found in Smith
v. Alabama, 124 U. S. 465, 31 L,. Ed.
508, 8 S. Ct. 564, in which a law of Ala-
bama requiring railroad engineers to
be examined touching their qualifica-
tions and to obtain a license was held
valid, although the plaintiff in error
ran an engine between Mobile, Ala.,
and Corinth, Miss.; Nashville, etc. R.
Co. v. Alabama, 128 U. S. 96, 32 L. Ed.
352, 9 S. Ct. 28, in which a law of Ala-
bama requiring of locomotive engi-
neers the ability to distinguish between
colors and to be examined relative
thereto was held to be no interfer-
ence with commerce between the
states, although the engineers might be
engaged in that service; New York,
etc, R. Co. v. New York, 165 U. S.
628, 41 L. Ed. 853, 17 S. Ct. 418. in

which a statute of New York regulat-
ing the heating of steam passenger
cars was sustained, although the par-
ticular train involved in the litigation
was engaged in interstate commerce;
Chicago, etc., R. Co. v. Arkansas, 219
U. S. 453, 55 L. Ed. 290, 31 S. Ct. 275,
in which a statute of Arkansas regulat-
ing the number of men constituting a
train crew operating trains passing
within the state was held valid and ap-
plicable to trains carrying commerce
between the state, and Hennington v.
Georgia, 163 U. S. 299, 41 L. Ed. 166,
i6 S. Ct. 1086, in which a law of
Georgia, forbidding the running of
freight trains on Sunday, necessarily
affected interstate commerce, but was
sustained.

63. Full train crews.—Act 116, p. 295,
Laws (Ark.), 1907.
§ 218 THE SAFETY APPLIANCE ACT. 462

neer, a fireman and three brakemen, regardless of any modern equipment,
is not so covered by the safety appliance act as to make the same invalid.*4
And a state statute requiring that railroad companies operating in yards or
terminals within a state and moving cars across public crossings within the
city limits shall have crews with not less than one engineer, a fireman, a
foreman and three helpers, is not invalid as an interference with interstate
commerce.®> Neither congress, nor the interstate commerce commission,
have established any regulations as far as head lights are concerned,
and a state statute requiring locomotives on the main line to be
equipped with electric head lights is not invalid, as being already regulated
by congress, or an interference with interstate commerce.®* In Atlantic,
etc., R. Co. v. State, 135 Ga. 545, 69 S. E. 725, 733, 32 L. R. A., N. S., 20,
affirmed in 34 S. Ct. 829, the court said:

“A railroad company driving an engine engaged in interstate commerce
through the territory of this state, with a headlight which endangers
‘the lives and property of the people, cannot claim that under the com-
merce clause of the federal constitution it is not subject to reasonable
police regulations of this state requiring an adequate headlight for the
protection of the lives and property of the people. The act in question
does not restrict or prohibit interstate commerce. It is an exercise of
the police power, designed to protect persons and property in this state,
and does not prohibit or regulate interstate commerce. The statute is
not directed against interstate commerce. So far as the act affects in-
terstate commerce, it is in aid thereof. It protects the persons and
property on trains brought from another state into this state, as it also
does persons and property not so brought; and it is the duty of the
state to protect the former as well as the latter.”

State laws, however, are only superseded and suspended in so far as
they conflict or interfere with the valid regulations of congress, and the
circumstance that a state statute covers acts of negligence of railroad com-
panies in respect to their cars, roadbed, machinery, etc.,—subjects dealt with
by this act—does not afford any substantial ground for the contention that
the statute is invalid, in so far as it imposed liability for an injury to an
employee arising from the negligence of a coemployee.8?

Applicability in Territories, District of Columbia, etc.—The orig-
inal act of 1893 only extends to common carriers engaged in interstate
commerce by railroad, but this was enlarged under the amendment of 1903
where it was declared “to apply to common carriers by railroads in the

64, Chicago, etc., R. Co. v. Arkansas,
219 U. S. 453, 55 L. Ed. 290, 31 S. Ct.
275, affirming 86 Ark. 412, 111 S. W.
456.

65. St. Louis, etc, R. Co. v. Arkan-
sas, 240 U. S. 518, 36 S. Ct. 443.

Blocking frogs and switches.—See
also, St. Louis, etc, R. Co. v. Mc-
Namare, 91 Ark. 515, 122 S. W. 102,
an act requiring railroads to fill or
block all switches, frogs and guard

rails, held not in conflict with Employ-
ers’ Liability Act, April 22, 1908. See
ante, “Limitation of State and Territo-
rial Powers,” Chap. II.

66. Electric head lights.—Atlantic,
etc. R. Co. v. Georgia, 234 U. S. 280,
58 L. Ed. 1312, 34 S. Ct. 829.

67. Negligence of fellow servants.—
iMissouri Pac. R. Co. v. Castle, 224 U.
S. 541, 56 L. Ed. 875, 32 S. Ct. 606.
463 OBJECT, VALIDITY, AND OPERATION OF ACT. § 218

territories and the District of Columbia.” ‘The question whether it extends
to the insular possessions of the United States was raised in American R.
Co. v. Birch,®8 with regard to Porto Rico, but was undecided. That it does
so extend was subsequently decided, in a case arising under the Federal
Employer’s Liability Act, on the ground that proper effect could not be
given the latter act unless it did apply.®® Considering its operation inde-
pendent of such act in American R. Co. v. Didricksen, 227 U. S. 145, 57 L.
Ed. 456, 33 S. Ct. 224, Ann. Cas. 1914B, 192, the court said:

“The acts of March 2, 1893 (27 Stat. at L. 531, chap. 196, U. S. Comp.
Stat. 1901, p. 3174), and April 1, 1896 (29 Stat. at L. 85, chap. 87,
U. 8. Comp. Stat. 1901, p. 3175), related only to railroad companies
engaged in interstate commerce. The traffic wholly confined to a ter-
ritory of the United States was therefore not within either. But the
act of March 2, 1903, amended the former acts and extended their pro-
visions to ‘common carriers by railroad in the territories and the Dis-
trict of Columbia.’ »* * * Weare of opinion that the act does extend
to Porto Rico. * * * Its organization is in most essentials that of
those political entities known as territories. It has a territorial legis-
lature and a territorial system of courts. By the 14th section of the
Foraker act of 1900 (31 Stat. at L. 80, chap. 191), ‘the statutory laws
of the United States not locally inapplicable * * * have the same
force and effort in Porto Rico as in the United States, except the in-
ternal revenue laws.’ In Kopel v. Bingham, 211 U. 5. 468, [53 L. Ed.
286, 29 S. Ct. 190,] Porto Rico was held to be a territory within the
meaning of § 5278, Revised Statutes (U. S. Comp. Stat. 1901, p. 3597),
providing for the surrender of fugitive criminals by governors of ter-
ritories.”’

68. Applicability in territories, Dis- 69. American R. Co. v. Didricksen,
trict of Columbia, etc.—224 U. S. 547, 227 U. S. 145, 57 L. Ed. 456, 33 S. Ct.
56 L. ‘Ed. 879, 32 S. Ct. 603. 224, Ann. Cas. 1914B, 192.
CHAPTER XXXI.

RAILROADS ENGAGED AND VEHICLES USED IN INTERSTATE COMMERCE.

1. What Constitutes Interstate Commerce, § 219.

2. Test of Applicability, § 220.

3. Railroads Engaged in Interstate Commerce, § 221.
4, Vehicles Used in Interstate Commerce, § 222.

5. Vehicles Set Aside for Repairs, § 223.

§ 219. What Constitutes Interstate Commerce.—By “interstate
traffic’ is meant, traffic that is moved from one state or territory into or
through some other state or territory. But not that the traffic should have
actually moved across the state line, it is only necessary that it should be
so consigned, and without regard to the length of the movement, the traf-
fic will take its character from the inception.2 If merchandise be consigned
from one point in a state to another point in the same state, but it is transit
carried through a portion of another state, the transaction constitutes inter-
state commerce.?

§ 220. Test of Applicability.—The test to determine whether the act
applies to any vehicle, is the use of the vehicle on a highway of interstate
commerce, and not the particular use which is being made of it at the time.
The length of the haul is immaterial.® Un fact it is doubted if a haul is

1. What constitutes interstate com- 4. Test of applicability —Southern R.
merce.—United States v. Chicago, etc, Co. uv. United States, 222 U. S. 20, 56
R. Co. (D. C.), 162 Fed. 775; United L. Ed. 72, 32 S. Ct. 2; Texas, etc, R.
States v. Colorado, etc. R. Co, 85 C. Co. v. Rigsby (U. S.), 36 S. Ct. 482;
C. A. 27, 157 Fed. 321,15 L. R. A.. N. Devine v. Chicago, etc., R. Co., 259 IIL.
S., 167, 13 Am. & Eng. Ann. Cas. 893. 449, 102 N. E. 803; United States v.

2. United States v. Central, etc, R. International, etc., R. Co., 98°C. C. A.

Co. (D. C.), 157 Fed. 893. 392, 174 Fed. 638; Hurley v. Illinois
“It has been proven in this case, and Cent. R. Co. (Minn.), 157 N. W. 1005.
there is no conflict in the evidence, “The original act, as enlarged by the

that both of the cars in question were amendatory one, is intended to em-
carrying traffic consigned from a point brace all locomotives, cars, and simi-
in one state to a point in another state. lar vehicles used on any railroad which
This makes such traffic interstate traf- is a highway of interstate commerce.”
fic. While the evidence does not show Southern R. Co. v. United States, 222
that the defendant hauled the car U.S. 20, 56 L. Ed. 72, 32 S. Ct. 2, af-
across the state line, still the defend- firming 164 Fed. 347. ;
ant is engaged in interstate traffic no “On any railroad engaged,” embraces
matter how short the movement, if the every train on a railroad which is a
traffic hauled is in course of movement highway of interstate commerce, with-
from a point in one state to a point in out regard to the class of traffic which
another.” United States v. Central, the cars are moving. Southern R. Co.
etc., R. Co. (D. C.), 157 Fed. 893, 894. v. United States, 222 U. S. 20, 56 L.
8. Passing through other states to Ed. 72, 32 S. Ct. 2, affirming 164 Fed.
reach point in same state——Hanley v. 347.
Kansas, etc., R. Co., 187 U. S. 617, 47 5. United States v. Southern Pac. Co.
L. Ed. 333, 23 S. Ct. 214; United States (D. C.), 167 Fed. 699.
v. Erie R. Co. (D. C.), 166 Fed. 352.

464
465

RAILROADS AND VEHICLES IN INTERSTATE COMMERCE.

§ 220

necessary at all, if the car is used.6 In United States v. St. Louis, etc., R.
Co., 106 C. C. A. 230, 184 Fed. 28, the court said:

“Ts the defendant’s contention true, that a hauling is absolutely necessary

to complete the offense? ‘The statute forbids hauling and using. Why
were both words used? If the car was fully loaded and on the track
ready to be started as a part of an interstate train, with engine attached
and fired, and requiring only the touch of the engineer to start, would
not the car be ‘used’ or in use, within the statute, before it was hauled?
If it was without the automatic coupler, so that the brakeman would
have to go between the cars to couple them, it would clearly be within
the mischief the statute was intended to prevent. ‘Used’ has other
meanings than ‘hauled.’ It is a broader word. To haul is to use, but
may not a car be used within the statutory meaning otherwise than by
being hauled? ‘This question is not necessarily involved so as to re-
quire its decision, and is only relevant as bearing on the soundness of
the defendant’s contention, for in the instant case all three of the de-
fective cars, were, in fact, hauled.”

But, prior to the amendment of 1903, the statute did not apply to any car
excepting those “used in moving interstate traffic.” 7

The use of a defective car over the line of a carrier engaged in inter-
state commerce is within the prohibition of the act, though that movement
does not constitute a use of the car in interstate commerce.® It was the

6. United States v. St. Louis, etc., R.
Co., 106 C. C. A. 230, 184 Fed. 28.

In Grand Trunk, etc., R. Co. v. Lind-
say, 120 C. C. A. 166, 201 Fed. 836, af-
firmed in 32 S. Ct. 581, it is said that
the use of a car having a defective
coupler is wrongful even though its
coming in contact with another car
was accidental.

7. Brinkmeier v. Missouri Pac. R.
Co., 81 Kan. 101, 105 Pac. 221, affirmed
in 32 S. Ct. 412. See also, Felt v. Den-
ver, etc., R. Co., 48 Colo. 249, 110 Pac.
215, 21 Am. & Eng. Ann. Cas. 379; Rio
Grande, etc, R. Co. uv. Campbell, 44
Colo. 1, 96 Pac. 986.

8. Use in interstate commerce not-es-
sential—United States—Southern R. Co.
v. United States, 222 U. S. 20, 56 L. Ed.
72, 32 S. Ct. 2; Southern R. Co. v. Rail-
road Comm., 236 U. S. 439, 59 L. Ed.
661, 35 S. Ct. 304; Southern R. Co. v.
Snyder, 124 C. C. A. 60, 205 Fed. 868;
United States v. Southern R. Co. (D.
C.), 164 Fed. 347, affirmed in 32 S. Ct.
2; Texas, etc, R. Co. v. Rigsby, 138
C. C. A. 51, 222 Fed. 221; United States
v. Pere Marquette R. Co. (D. C.), 211
Fed. 220; Wabash R. Co. v. United
States, 93 C. C. A. 393, 168 Fed. 1;
United States v. Great Northern R. Co.
(D. C.), 145 Fed. 438; Hohenleitner v.
Southern Pac. Co. (C. C.), 177 Fed.
796; United States v. Illinois Cent. R.

Fed Act—30

Co. (D. C.), 166 Fed. 997; United
States v. International, etc., R. Co., 98
C. C. A. 392, 174 Fed. 638; Boyle v.
Pennsylvania R. Co., 142 C. C. A. 558,
228 Fed. 266.

Indiana.—Southern R. Co. v. Railroad
Comm., 179 Ind. 23, 100 N. E. 337, re-
versed on other grounds in 35 S. Ct.
304.

Jowa.—Stearns v. Chicago, etc. R.
Co., 166 Iowa 566, 148 N. W. 128.

Kansas—Thornbro v. Kansas, etc.,
R. Co., 91 Kan. 684, 139 Pac. 410, Ann.
Cas. 1915D, 314.

Texas.—State v. Orange, etc., R. Co.
(Tex. Civ. App.), 181 S. W. 494.

Every railroad company engaged in
interstate commerce must equip with
safety appliances all of its cars and all
of its trains, regardless of the service
in which they are employed. United
States v. Pere Marquette R. Co. (D.
C.), 211 Fed. 220, 222.

In Southern R. Co. v. Snyder, 109 C.
C. A. 344, 187 Fed. 492, it was held that
the act should not be construed to
mean cars devoted at the time to purely
intrastate use though not set apart for
the same, but on second appeal (205
Fed. 868) their views were changed to
meet the decision in Southern R. Co.
v. United States, 222 U. S. 20, 56 L.
Ed. 72, 32 S. Ct. 2.

“The effect of the amendment is to
§ 220 466

THE SAFETY APPLIANCE ACT.

intention of congress to prevent the movement of such a car over such a
line.® In Southern R. Co. v. United States, 1° the company was held lia-
ble for the movement, on a road over which traffic was continually being
moved from one state to another, of three cars on which the couplers were
defective and inoperative, though they were moving purely interstate traf-
fic, and not in connection with any car or cars used in interstate commerce.
In Wabash R. Co. v. United States,1! the circuit court of appeals for the
seventh circuit held that a car belonging to a railroad engaged in interstate
commerce, and which car is customarily and generally employed in moving in-
terstate traffic, is subject to the Federal Safety Appliance Act. This hold-
ing was made in a case heard upon demurrer, the effect of which was to
admit that: “The defective car was not part of an interstate train, was not
itself being moved on an interstate journey, and was not exclusively de-
voted to the carriage of commodities in interstate traffic.”

The switch track of an interstate carrier are parts of its line, so that
cars moved thereon are within the statute.12 In United States v. Chesa-
peake, etc., R. Co., 130 C. C. A. 262, 213 Fed. 748, the court said:

“To hold that the words ‘while such car was being used by such carrier

upon its line of railroad’ are intended to limit the statute in its applica-

tion to the main line would, in a large degree, nullify the act.

When

we consider the statute in regard to safety appliances, we are forced
to the conclusion that it must have been the intention of Congress that
the same should apply to side tracks and yard tracks as well as the

main lines.”

Where a railroad company operated its trains engaged in interstate com-
merce with its own engines and crews over the tracks of another company

apply the provisions and requirements
of the act to all cars used on any rail-
road engaged in interstate commerce
and to all other cars used in connec-
tion therewith. Act March 2, 1903, c.
976, 32 Stat. 943 (U. S. Comp. St. ‘Supp.
1909, p. 1143). If it is so used, it
makes no difference if the defective
car was empty, or how it was loaded
at the time. The act, as amended, ap-

plies to all cars and trains operated by.

a railroad carrier of interstate com-
merce over an interstate railway, ir-
respective of whether the defective
car is being hauled from one point to
another in the same state or not; it
being part of a train engaged in in-
terstate traffic.” United. States v. In-
ternational, etc., R. Co. 98 C. C. A.
392, 174 Fed. 638.

“Under the safety appliance act, all
cars of an interstate railroad, in what-
ever kind of commerce used, are re-
quired to be equipped with safety ap-
pliances, upon the theory that such
universal equipment is necessary to the
safety of interstate traffic. It has
therefore been held in Southern R. Co.

v. United States, 222 U. S. 20, 56 L.
Ed. 72, 32 S. Ct. 2, that a car used
for intrastate traffic only, when hauled
over tracks used for interstate traffic,
is within the safety appliance act.”
Boyle v. Pennsylvania R. Co., 142 C.
C. A. 558, 228 Fed. 266, affirming 221
Fed. 453; Lucas v. Peoria, etc., R. Co.,
17111. App. 1.

Contra—United States v. Erie R.
Co. (D. C.), 166 Fed. 352; Kansas, etc.,
R. Co. v. Flippo, 138 Ala. 487, 35 So.
457, where it was held a question for
the jury.

9. Test is use by interstate carrier.
—Texas, etc, R. Co. v. Rigsby, 138
C. C. A. 51, 222 Fed. 221, affirmed in
36 S. Ct. 482.

10. 222 U. S. 20, 56 L. Ed. 72, 32
S. Ct: 2.

11. 93 C. C. A. 393, 168 Fed. 1.

12. Switches as part of line.—Chi-
cago, etc., R. Co. v. United States, 127
C. C. A. 438, 211 Fed. 12, reversed on
other grounds in 35 S. Ct. 635; United
States v. Chesapeake, etc., R. Co., 130
C. C. A. 262, 213 Fed. 748.
467 RAILROADS AND VEHICLES IN INTERSTATE COMMERCE. §§ 220-221

under a contract between them, such other tracks are a part of its line
within the meaning of the act and its amendments so as to require cars
operated upon them to be equipped with safety appliances as therein re-
quired. The fact that, in conducting its train over these tracks the de-
fendant company did so subject to such rules and regulations of the
other company as were necessary for the safe and convenient conduct of
its business, in nowise militates against the proposition.1® And when a
private switch is used for interstate business a car thereon is subject to the
act and peremptory instruction that the act did not apply was error.!4

§ 221. Railroads Engaged in Interstate Commerce.—A railroad
has been defined as a road or way on which iron rails are laid for wheels
to run on for the conveyance of heavy loads and vehicles. Such a track
is a railroad independently of the use made of the track in the hauling of
cars over it.15

The requirements of the act extend to “common carriers engaged in
interstate commerce by railroad,” and applies to railroads wholly within a
state as well as those running between states. It was the evident and de-
clared purpose of the safety appliance acts to require every common car-
rier engaged in interstate commerce, and hence every common carrier so
engaged independently in a single state, to comply with the requirements
of the statute. No greater burden is thereby imposed upon a company
engaged in such commerce within one state than upon one so engaged in
more than one state. There was as urgent a demand, and as much reason
and necessity, for the protection of the liyes and limbs of the servants of
railroad companies operating in a single state as of preserving the lives
and limbs of the servants of such companies operating across state lines.
The safety appliance acts might be practically evaded and thus rendered
futile if companies independently transporting articles of interstate com-
merce in single states could exempt themselves from their provisions by
conducting all such transportation, except that across the imaginary lines
which divide the states, by means of corporations operating in single states
only.16 Also the reason for the law as imperatively requires the protec-
tion from dangerous vehicles of the employees of companies independently
engaged in interstate commerce by railroads entirely within single states
as it does the protection of the servants of other companies employed in
the transportation of articles of commerce between states by railroad.17

13. Tracks of others as part of line.
Philadelphia, etc., R. Co. v. United
States, 111 C. C. A. 661, 191 Fed. 1.

14, Private switch—Gray v. Louis-
ville, etc., R. Co. (C. C.), 197 Fed. 874.

15. Railroad defined.—United States
v. Union Stock Yards Co. (D. C.), 161
Fed. 919, on authority of Dinsmore v.
Racine, etc., R. Co., 12 Wis. 649; Lake
Superior, etc., R. Co. v. United States,
93 U. S. 442, 23 L. Ed. 965.

16. Railroads wholly within state.
United States v. Colorado, etc., R. Co.,
85 C. C. A. 27, 157 Fed. 321, 15 L. R.
A. N. S., 167, 13 Am. & Eng. Ann.
Cas. 893; Wabash R. Co. v. United
States, 93 C. C. A. 393, 168 Fed. 1;
United States v. Chicago, etc., R. Co.
(D. C.), 143 Fed. 353.

17. United States v. Colorado, etc.,
R. Co., 85 C. C. A. 27, 157 Fed. 321, 15
L. R. A, N. S., 167, 13 Am. & Eng.
Ann. Cas. 893.
§ 221 THE SAFETY APPLIANCE ACT. 468

It has ‘been contended that it was never the intention of congress that
this act should apply to such roads, but that they were an exception, 1%
to which in United States v. Colorado, etc., R. Co., 85 C. C. A. 27, 157
Fed. 321,15 L. R. A., N. S., 167, 13 Am. & Eng. Ann. Cas. 893, the court

said:

“But where the congress makes no exception from the clear and certain
declaration of a statute, there is ordinarily a presumption that it in-
tended to make none. * * * By so much the more is it true that
where the lawmaking body has made exceptions to the general terms
of an act, as in this instance, the presumption is that it intended to
make no more. Again, if congress intended to make this exception,
it was a secret intention which the safety appliance acts not only
failed to express but which their terms expressly negatived. It is the
intention expressed, or necessarily implied, in the law, and that alone,
to which courts may lawfully give effect. They may not assume or
presume purposes and intentions that are neither expressed nor im-
plied, and then construe into the law the provisions to accomplish
these assumed intentions. A secret intention of the lawmaking body
cannot be legally interpreted into a statute which is plain and unam-
biguous, and which does not express or imply it.”

In order to include a railroad wholly within the state, it is not necessary
that it should be under the common control, or management of other car-
riers or have any arrangement with them for a continuous shipment.1®
All that is necessary is that it should deliver at their ultimate destination
shipments originating in other states, or receive shipments destined to other
states. Because transportation into one state from another is the indis-
pensable element, the test, of interstate commerce. Every part of every
transportation of articles of commerce in a continuous passage from an
inception in one state to a prescribed destination in another is a transaction
of interstate commerce. Goods so carried never cease to be articles of
interstate commerce from the time they are started upon their passage in
one state until their delivery at their destination in the other is completed,
and they there mingle with and become a part of the great mass of prop-
erty within the latter state. Their transportation never ceases to be a
transaction of interstate commerce from its inception in one state until the
delivery of the goods at their prescribed destination in the other, and
every one who participates in it, who carries the goods through any part
of their continuous passage, unavoidably engages in interstate com-
merce.?°

18. As excepted from act.—United Am. & Eng. Ann. Cas. 893; Pacific

States v. Colorado, etc, R. Co., 85 C.
C. A. 27, 157 Fed. 321, 15 L. R. A,,
N. S., 167, 13 Am. & Eng. Ann. Cas.
893.

19. Necessity of arrangement with
other railroads—United States v. Col-
orado, etc., R. Co., 85 C. C. A. 27, 157
Fed. 321, 15 L. R. A. N.S. 167, 13

Coast R. Co. v. United States, 98 C.
C, A. 31, 173 Fed. 448.

Contra.—United States v. Geddes, 65
C. C. A. 320, 181 Fed. 452, affirmed in
180 Fed. 480.

20. United States v. Colorado, etc.,
R. Co., 85 C. C. A. 27, 157 Fed. 321, 15
L. R. A. N. S., 167, 13 Am. & Eng.
469 RAILROADS AND VEHICLES IN INTERSTATE COMMERCE. § 221

A loaded car which is consigned to another state is in use in interstate
traffic, even though the company accepting it for delivery agrees only to »
deliver it within the same state to a connecting carrier.21_ So the transporta-
tion by a common carrier by railroad of articles of interstate commerce for
an independent express company, or for other railroad companies, is en-
gaging in interstate commerce. by railroad as effectually as their carriage by
it for the vendors or consignors.22. And where the railroad wholly within
a state is of narrow gauge, necessitating the transfer of goods to its cars
from those of the connecting carrier, this would not effect an interstate ship-
ment so as to make the transportation between the connecting point and the
ultimate destination intrastate.2#

Transfer and Belt Railroads.—Carriers who are engaged in transfer-
ring cars to their ultimate destination either to their own plant, or to other
consignees or carriers are required to equip their vehicles in compliance
with the act. Even though as such carriers they carry only for other car-
riers and not for consignors or consignees.24 Thus a stockyards company
which owns and maintains at a large shipping point an extensive stockyards
which is in effect the live stock depot of all the railroad companies doing
business at that point, and which owns and maintains several miles of rail-
road tracks extending over its own premises from its stockyards to a trans-
fer track (also on its own premises) connecting with the several tracks of
the railroad companies, and which by means of its own locomotives and
servants transports for hire over its tracks all shipments of live stock ac-
cepted by the railroad companies for carriage to and from such stockyards,
including such shipments as are interstate, is a common carrier engaged in
interstate commerce by railroad within the meaning of the safety appliance

Ann. Cas. 893; Pacific Coast R. Co. v.
United States, 98 C. C. A. 31, 173 Fed.
448; Devine v. Chicago, etc., R. Co.,
259 Ill. 449, 102 N. E. 803, reversing
174 Ill. App. 324.

“The evidence in the case at bar
shows that cars loaded with freight
billed to the foundry company came
to the point where plaintiff in error’s
tracks connected with interstate roads
and were there received by plaintiff
in error and hauled over its tracks to
their final destination. In handling
both incoming and outgoing cars as a
connecting line with interstate rail-
roads plaintiff in error was engaged
in interstate commerce. Every part
of the transportation of goods in a
continuous passage from one state to
a designated point in another state is
interstate commerce, and every com-
mon carrier that participates in the
transportation of such goods is en-
gaged in interstate commerce, even
though the particular part of the trans-
portation of a given carrier is wholly

within one state.” Devine v. Chicago,
etc., R. Co., 259 Ill. 449, 102 N. E. 808.

21, Agreements to deliver to con-
necting carrier only.—United States v.
Southern R. Co. (D. C.), 135 Fed. 122.

22. Transporting goods for express
company or other railroad.—United
States v. Colorado, etc., R. Co., 85 C.
C. A. 48, 157 Fed. 342; Union Stock-
yards Co. v. United States, 94 C. C.
A. 626, 169 Fed. 404.

23. When connecting carrier narrow
gauge.—Pacific Coast R. Co. v. United
States, 98 C. C. A. 31, 173 Fed. 448.

Contra.—United States v. Geddes, 65
C. C. A. 320, 181 Fed. 452, affirmed in
180 Fed. 480.

24. Transfer and belt railroads.—
Belt R. Co. v. United States, 93 C. C.
A. 666, 168 Fed. 542, 22 L. R. A, N.
S., 582; Union Stockyards Co. vw.
United States, 94 C. C. A. 626, 169 Fed.
404, affirming 161 Fed. 919; United
States v. Northern Pac. Terminal Co.
(D. C.), 144 Fed. 861.
§§ 221-222 THE SAFETY APPLIANCE ACT. 470

law of congress, although the cars in which it transports such shipments
are in every instance the cars of the railroad company from which the ship-
ment is received or-to which it is delivered at the transfer track, and al-
though the stockyards company does not collect the compensation for its
service directly from the shippers or consignees, but only from the railroad
companies delivering the loaded cars to it, or receiving them from it, at the
transfer track, and although its service is performed and its compensation
is paid in accordance with a contract between it and the railroad com-
panies.25

Common Carrier.—It may be questioned whether a railroad company
must be a common carrier in order to bring it within these acts, since the
amendment approved March 2, 1903, makes the provisions and require-
ments of that amendatory act, as weil as of the original act as amended,
apply to all “cars and similar vehicles used on any railroad engaged in in-
terstate commerce.” 26 But it has been held that a carrier operating its own
construction train, which hauls its own rails and products from a point in
one state to a point in another state, is engaged in interstate commerce, and
vehicles upon its line must be equipped according to the act.27

Interurban Lines.—When congress excepted from the operation of the
act cars “which are used upon street railways,” it must have intended to
exclude only such as are used solely on street railways and it cannot be
construed so as not to embrace an interurban line extending for forty miles
out from a city which was doing an interstate business, practically the same
as a railroad—of standard gauge, selling tickets, carrying baggage, run-
ning on regular schedule and operated by train dispatchers. The operation
in the city being merely a minor part of the regular operation of the serv-
ice.?8

§ 222. Vehicles Used in Interstate Commerce.—While under the
original act there were many cars to which it was not applicable, due to the
limitation of their use “in moving interstate traffic,” yet after the amend-
ment of 1903 in which it was declared “to apply to all trains, locomotives,
tenders, cars and similar vehicles used on any railroad engaged in interstate
commerce, and * * * to all other locomotives, tenders, cars and similar
vehicles used in connection therewith,” there are not any vehicles which fail

25. Union Stockyards Co. v. United
States, 94 C. C. A. 626, 169 Fed. 404.

26. Common -carrier.—United States
v. Union Stock Yards Co. (D. C.), 161
Fed. 919.

When a railroad which is chartered
by a state, the constitution of which
declares that railroads constructed
within the state are public highways
and free to all persons for the trans-
porting of their persons and property
and that their liability as common car-
riers shall never be limited, it is to
be deemed a common carrier, of a rail-

.

road, regardless of the limited nature
of the business in which it may be en-
gaged. United States v. Union Stock
Yards Co. (D. C.), 161 Fed. 919, af-
firmed in 169 Fed. 404.

27. Carrier carrying for itself.—
United States v. Chicago, etc., R. Co.
(D. C.), 149 Fed. 486.

28. Interurban lines.—Spokane, etc.,
R. Co. v, Campbell (U. S.), 36 S. Ct.
683; Spokane, etc, R. Co. v. United
States .(U. S.), 36 S. Ct. 668, affirming
210 Fed. 243, which affirmed 206 Fed.
988.
471 RAILROADS AND VEHICLES IN INTERSTATE COMMERCE. § 222

to come within the act, except those which are excluded by the, proviso, viz.,
logging cars and locomotives, and street cars. Certainly the reported deci-
sions fail to show any such case. And even under the original act in United
States v. St. Louis, etc., R. Co. (D. C.), 154 Fed. 516, 518, it is declared,

“The phrase, ‘used in moving interstate traffic,’ does not only mean that
the car must be actually loaded with interstate traffic and on its jour-
ney from state to state at the time of the alleged violation, but its
more natural meaning is that it is a car that has been used for such
purpose, stands ready, and is intended to be used for such purpose
whenever needed.”

Merely because cars are only engaged in switching operations at the time
they are defective does not take them out of the operation of the act requir-
ing automatic couplers,2® and a car which is delivered by one company to
another and by the latter moved from one yard in a city to another yard for
the purpose of being placed in an interstate train, is a car engaged in inter-
state commerce while it is being so moved between the yards.2° As soon as
a car is moved for the purpose of spotting it so as to receive an interstate
shipment it becomes impressed’ with the character of that service, though
whether it was moved for that purpose may be a question for the jury.31

There is an important distinction between merchandise which may be the
subject of interstate commerce and the car in which such merchandise is
moved. The merchandise is not an article of interstate commerce before.
transportation begins, but the car or engine is within the safety appliance act
if used as an instrument in moving interstate commerce, and such use be-
gins when it is moved for the purpose of receiving merchandise to be shipped
out of the state.3?

When a train is being made up for the purpose of moving interstate com-

merce all cars therein are subject to the act.33

29. Switching.—United States v. At-
lantic, etc, R. Co. (D. C.), 214 Fed.
498; United States v. Southern R. Co.
(D. C.), 170 Fed. 1014; Erie R. Co. v.
Russell, 106 C. C. A. 160, 183 Fed. 722;
Delk v. St. Louis, etc., R. Co., 220 U.
S. 580, 55 L. Ed. 590, 31 S. Ct. 617;
‘Hurley v. Illinois Cent. R. Co. (Minn.),
157 N. W. 1005.

“For a failure to have the car prop-
erly equipped with a coupling as re-
quired by the act, it is no defense to
this charge to say, it is true the car
was not properly equipped, but we are
switching it and other cars on our line
or in our yards. There is no denial
that the defendant was a railroad en-
gaged in interstate commerce and the
cars mentioned engaged in interstate
commerce, except it be by reason of
the switching operations.’ United
States v. Atlantic, etc., R. Co. (D. C.),
214 Fed. 498, 500.

30. United States v. Pittsburgh, etc.,
R. Co. (D. C.), 143 Fed. 360.

31. Spotting car to load.—Bresky v.
‘Minneapolis, etc., R. Co. 115 Minn.
386, 182 N. W. 337.

Whether defendant intended by
moving a car to place it so as to re-
ceive an interstate shipment was for
the jury, the evidence showing the car
to have been partly loaded, which was
completed some ten days later, and
after ten or twelve more days was sent
on an interstate journey, the defend-
ant offering no evidence to show that
it was not so engaged. Bresky v. Min-
neapolis, etc., R. Co., 115 Minn. 386,
132 N. W. 337.

32. Bresky v. Minneapolis, etc., R.
Co., 115 Minn. 386, 182 N. W. 337.

33. Making up trains.—Mobile, etc.,
R. Co. v. Bromberg, 141 Ala. 258, 37
So. 395.
§ 222 THE SAFETY APPLIANCE ACT. 472

Cars Once Used in Interstate Traffic—When Use Ends.—When cars
are once used in interstate commerce, it is a reasonable presumption that
they remain in it.24 And that when once they have started on an interstate
trip, they retain their status until reaching the ultimate destination and have
been unloaded.35 Thus where another railroad company delivered to the
defendant upon an exchange track in its yards at Ottumwa, in the state of
Iowa, a string of six freight cars among which was a foreign car loaded
with lumber that had come from a point in the state of Arkansas and was
consigned to an industry located a few blocks distant from the exchange
track. A switching crew of the defendant company with a switch engine
pulled the cars out of the track where they had been placed, and were en-
gaged in distributing them when it was discovered that the coupling appli-
ance on the foreign car would not work so it could be uncoupled from the

car next to it.

84. Cars once used in interstate traf-
fic—When use ends.—Wheeling Ter-
minal R. Co. v. Russell, 126 C. C. A.
519, 209 Fed. 795; Felt «. Denver, etc.,
R. Co., 48 Colo. 249, 110 Pac. 215, 21
Am. & Eng. Ann. Cas. 379.

35. When ultimate destination
reached.—Delk v. St. Louis, etc., R.
Co., 220 U. S. 580, 55 L. Ed. 590, 31
S. Ct. 617, affirming 158 Fed. 931; Chi-
cago, etc., R. Co. v. United States, 91
C. C. A. 373, 165 Fed. 423, 20 L. R.
A., N. S., 473; United States v. West-
ern, etc., R. Co. (D. C.), 184 Fed. 336;
Wheeling Terminal R. Co. v. Russell,
126 C. C. A. 519, 209 Fed. 795; United
States v. Atlantic, etc. R. Co. (D. C.),
214 Fed. 498; Chicago, etc., R. Co. w.
Voelker, 65 C. C. A. 226, 129 Fed. 522,
70 L. R. A. 264.

“The next point is that the interstate
shipment contained in car P. F. W. &C.
Ry., 823210, was consigned from Rich-
mond, in the state of Virginia, to At-
lanta, in the state of Georgia, and, ac-
cording to the declaration, it had al-
ready reached its destination. The
meaning of the declaration would seem
to be that the train in question was
passing through or around Atlanta,
and presumably being switched from
one railroad yard to another in order
to be delivered! at its final destination.
This being true, and if the interstate
shipment had not reached its final des-
tination, it would come within the
safety appliance act. Judge Brawley,
in charging the jury in United States
v. Atlantic C. L. R. Co., in the District
Court in South Carolina, used this lan-
guage (Kent’s Index-Digest of Deci-
sions under the Federal Safety Appli-
ance Act, Appendix, 267): ‘Wherever
a car is loaded in one state of the Un-

A switchman then went between the ends of the cars and

ion with a commodity which is des-
tined for another state, and begins to
move, then interstate commerce has
begun, and does not cease till the car
has arrived at its point of final desti-
nation.” United States v. Western,
ete, R. Co. (D. C.), 184 Fed. 336, 337.

“We think there was evidence that
the carriage or movement of the coal
with which the car in question was
loaded had not terminated, and that
the coal was still actually in transit.
The evidence contains no suggestion
that the car had reached the end of
its journey, or that it was to remain
indefinitely or for any considerable
time on the track where it was at the
time of the injury, or that the coal
was to be unloaded there. The infer-
ence to be reasonably drawn from the
evidence is that the car was then about
to actively continue the journey to-
ward the ultimate destination of the
coal which it was carrying. Whether
that was near by or remote is not ma-
terial, because the shipment had origi-
nated in another state, and was al-
ready impressed with the character of
interstate traffic, which would follow
it at least until the actual transit
ceased.” Chicago, etc., R. Co. v. Voel-
ker, 65 C. C. A. 226, 129 Fed. 522, 70
L. R. A. 264.

The case of Chicago, etc., R. Co. v.
United States, 91 C. C. A. 373, 165 Fed.
423, 20 L. R. A., N. S., 473, holds that:
“There had been no delivery of the
car in question at the ultimate destina-
tion, and the switching of it from the
time it was taken by defendant’s em-
ployees * * to the time of the
discovery of the defect was in the
course of such delivery and constituted
a case in interstate commerce.”

’
473 RAILROADS AND VEHICLES IN INTERSTATE COMMERCE, § 222

with his hands manipulated the coupler of the opposite car and so detached
them. The car with the defective coupler was then put’ back on the ex-
change track from whence it was taken. There had been no delivery of
the car in question at its ultimate destination, and the switching of it from
the time it was taken by defendant’s employees on the exchange track to
the time of the discovery of the defect was in the course of such delivery
and constituted a use in interstate commerce.?¢

Even after it is unloaded it may still retain its character if there is any-
thing remaining to be done in connection with the shipment. Thus a ship-
ment consisting of loaded cars which came from without the state was de-
livered to a consignee and after being unloaded they were to be reweighed
in order to determine the net weight of the contents; until after the reweigh-
ing that they were still engaged in such commerce.37 Also, when it is in-
tended that after the delivery of the consignment in a car, that it should be
returned to the railroad company from which received, while on a side track
waiting such delivery; #8 or if it is to be returned to the other state from
which it came, during the time of unloading and the return trip; 2° or if it is
to be taken on to a division point of the road for future use, #° it is engaged in
interstate commerce.

Cars Used in Connection with Interstate Cars.—Whenever a car in
interstate use is in any way connected with other cars or engines though not
so used, whether in the same train,#1 or in the same switching move-

86. Chicago, etc., R. Co. uv. United
States, 91 C. C. A. 373, 165 Fed. 423,
20 L. R. A, N. S., 473.

37. Use of car after unloading.—
Wheeling Terminal R. Co. v. Russell,
126 C. C. A. 519, 209 Fed. 795.

88. Johnson v. Great Northern R.
Co., 102 C. C. A. 89, 178 Fed. 643.

39. Bresky v. Minneapolis, etc, R.
Co., 115 Minn. 386, 132 N. W. 337.

40. Felt v. Denver, etc. R..Co., 48
Colo. 249, 110 Pac. 215, 21 Am. & Eng.
Ann, Cas. 379.

41. Cars used in connection with in-
terstate cars—Thornbro v. Kansas,
etc., R. Co., 91 Kan. 684, 139 Pac. 410,
Ann. Cas. 1915D, 314; Thornbro wv.
Kansas, etc, R. Co. 92 Kan. 681,
142 Pac. 250; United States uv. Bal-
timore, etc., R. Co. (D. ‘C.), 170 Fed.
456; Norfolk, etc. R. Co. v.- United
States, 101 C. C. A. 249, 177 Fed. 623;
United States v. Wheeling, etc., R. Co.
(D. C.), 167 Fed. 198; Louisville, etc.,
R. Co. v. United States, 108 C. C. A.
326, 186 Fed. 280; United States v. In-
ternational, etc, R. Co, 98 C. C._A.
392, 174 Fed. 638; United States v. Erie
R. Co. (D. C.), 166 Fed. 352; United
States uv. Illinois Cent. R. Co. (D. C.),
166 Fed. 997; Wabash R. Co. v. United
States, 93 C. C. A. 393, 168 Fed. 1;

Bresky v. Minneapolis, etc, R. Co.,
115 Minn. 386, 132 N. W. 337; United
States v. Chicago, etc., R. Co. (D. C.),
162 Fed. 775, 782; United States v.
Western, etc., R. Co. (D. C.), 184 Fed.
an, 397,

If a railroad company hauls a car
which is defective as to coupling ap-
pliances or grabirons or handholds, al-
though the defective car does not con-
tain any interstate traffic, yet if it is
hauled in a train which contains an-
other car that is loaded with interstate
traffic, then the statute is violated.
United States v. Baltimore, etc., R. Co.
(D. C.), 170 Fed. 456.

“The fact that that car was hauled
wholly within the state of Iowa is not
material, if in the same train that it
was hauled there were other cars
loaded with traffic from a point with-
out the state, or from a point within
the state consigned to a point without
the state.” United States v. Chicago,
etc. R. Co. (D. C.), 162 Fed. 775, 782.

“A train, composed of cars some of
which are and some of which are not
engaged in interstate traffic, is subject
to the regulation of congress. A rail-
way company can not escape liability
by mixing, in the same train, cars en-
gaged in interstate traffic with cars
474

§ 222 THE SAFETY APPLIANCE ACT.

ment,#? the effect is to impress all such cars or engines with an interstate
service and the equipment as required by the act is necessary on all cars and
not only the ones next in proximity to the interstate car.43

_ The car which is used to. impress the whole service with an interstate com-
merce use, need not be the one which is defective. Thus in a switching move-
ment the car that was being moved to receive an interstate shipment was not
defective, but another car between it and the engine was and the court held
that this was the same thing as if the engine had been defective and coupled
directly to such interstate car.44 Indeed as far as the switching movement
is concerned, cars and engine would seem to be in interstate service from the
moment they were ordered to move an interstate car, and not necessarily
until it was physically connected therewith.

Cars Temporarily at Rest.—Cars which are regularly used in interstate
commerce are still used therein, though at the time they are on a side track
waiting to be connected with an interstate train.4® Thus a dining car had
been constantly used for several years to furnish means to passengers be-
tween San Francisco and Ogden, and for no other purpose. Qn the day of
the accident the eastbound train was so late that it was found that the car
could not reach Ogden in time to return on the next westbound train ac-
cording to intention, and it was therefore dropped off at Promontory, to be
picked up by that train as it came along that evening. Confessedly this
dining car was under the control of congress while in the act of making
its interstate journey, and it was equally so when waiting for the train to
be made up for the next trip. It was being regularly used in the movement
of interstate traffic, and so within the law.46 When, too, cars have com-
pleted an interstate trip and are in the yards of the company awaiting dis-
position they retain their interstate character,47 and especially is this so if

engaged in intrastate traffic. All the sions that have been rendered, that it

cars in such a train must be provided
with the automatic couplers and grab-
irons required by the aet of March 2,
1893, for every such car is in fact ‘used
in moving interstate traffic.’” United
States v. Erie R. Co. (D. C.), 166 Fed.
BO2, B55.

42. Bresky v. Minneapolis, etc., R.
Co., 115 Minn. 386, 132 N. W. 337;
Otos v. Great Northern R. Co., 128
(Minn. 283, 150 N. W. 922.

43. Direct connection with defective
cars.—Norfolk, etc, R. Co. v. United
States, 101 C. C. A. 249, 177 Fed. 623;
Louisville, etc., R. Co. v. United States,
108 C. C. A. 326, 186 Fed. 280; United
States v. Western, etc., R. Co. (D. C.),
184 Fed. 336; United States v. Illinois
Cent. R. Co. (D. C.), 166 Fed. 997;
Winkler v. Philadelphia, etc., R. Co.,
4 Pennewill (Del.) 80, 53 Atl. 90.

“It seems perfectly clear to me, and
such, I think, is the effect of all deci-

is immaterial whether the car which
is engaged in interstate commerce, car-
rying an interstate shipment, is imme-
diately connected with the car having
the defective appliance or not, so long
as it is in the same train of cars. This
is clearly alleged in this declaration.”
United States v. Western, etc., R. Co.
(D. C.), 184 Fed. 336, 337.

44. Bresky v. Minneapolis, etc., R.
Co., 115 Minn. 386, 132 N. W. 337.

45. Cars temporarily at rest.—John-
son v. Southern Pac. Co., 196 U. S. 4,
49 L. Ed. 363, 25 S. Ct. 158, reversing
117 Fed. 462, 54 C. C. A. 508.

46. Johnson v. Southern Pac. Co.,
196 U. S. 1, 49 L. Ed. 363, 25 S. Ct.
158.

47. Felt v. Denver, etc., R. Co., 48
Colo. 249, 110 Pac. 215, 21 Am. & Eng.
Ann. Cas. 379.

“The car No. 6918, having been once
used in actually moving interstate traf-
475 RAILROADS AND VEHICLES IN INTERSTATE COMMERCE. § 222

the next trip made is interstate.48 As where a car engaged in interstate
commerce having arrived at its destination and been unloaded was then
moved to a yard of defendant in a city near by, it was subsequently moved
to another yard in the same city and soon thereafter again loaded with an
interstate shipment, this was a car engaged in interstate commerce.*?

Empties.—It is as much in violation of this act to haul—that is, to pull,
to drag, to draw—an empty car that is used in moving commodities of in-
terstate commerce, and which is not equipped with automatic couplers, as
it is to haul a car actually loaded with commodities of interstate commerce,
not so equipped. The statute was designed to inhibit the hauling, or using
by any railroad company on its line, any car used in moving interstate traffic
not equipped with couplers coupling automatically by impact, etc.; the de-
nouncement being against the use of the car. It makes but little difference,
therefore, whether the car contained at the time any commodity being car-
ried as freight or not, if the car was one being used in moving interstate
traffic, not in the sense that at the particular time it was going, loaded or
partially so with a commodity being shipped from one state into another,
or others, but that it was being employed in a service that was moving in-
terstate traffic.5°

There is as great danger to the employee in going between empty cars to
couple and uncouple them as there is in going between loaded cars for like
‘purpose.51 An empty car in a train containing a car with an interstate ship-

fic, became impressed with that char-

R. Co., 102 C. C. A. 89, 178 Fed. 643;
acter and as it was held in the com-

pany’s yards at Salida to be sent upon
an interstate trip whenever required,
and as the record does not show that
the car was segregated from the class,
i. e., cars used in moving interstate
traffic, in which it was placed by the
company, it was, at the time of the
injury, a car used in moving interstate
traffic, within the meaning of the act
of congress.” Felt v. Denver, etc., R.
Co., 48 Colo. 249, 110 Pac. 215, 21 Am.
& Eng. Ann. Cas. 379.

48. Johnson v. Great Northern R.
Co., 102 C. C. A. 89, 178 Fed. 643;
Moyer v. Pennsylvania R. Co., 247 Pa.
210, 93 Atl. 282; Erie R. Co. v. Russell,
106 C. C. A. 160, 183 Fed. 722.

49. Moyer v. Pennsylvania R. Co.,
247 Pa. 210, 93 Atl. 282.

50. Empties.—Johnson v. Southern
Pac. Co., 196 U. S. 1, 49 L. Ed. 363, 25
S. Ct. 158; United States v. Northern
Pac. Terminal Co. (D. C.), 144 Fed.
861; Voelker v. Chicago, etc., R. Co.
(C. C.), 116 Fed. 867, reversed on other
grounds in 65 C. C. A. 226, 129 Fed.
522, 70 L. R. A. 264; United States v.
St. Louis, etc, R. Co. (D. C.), 154
Fed. 516; Johnson v. Great Northern

United States v. Southern R. Co. (D.
C.), 170 Fed. 1014; Louisville, etc, R.
Co. v. United States, 98 C. C. A. 664,
174 Fed. 1021, affirming 162 Fed. 185;
Chicago, etc., R. Co. v. United States,
91 C. C. A. 373, 165 Fed. 423, 20 L.
R. A. N. S., 473; Hohenleitner v.
Southern Pac. Co. (C. C.), 177 Fed.
796; Wabash R. Co. v. United States,
93 C. C. A. 393, 168 Fed. 1.

“Besides, whether cars are empty or
loaded, the danger to employees is
practically the same, and we agree
with the observation of District Judge
Shiras, in Voelker v. Chicago, etc. R.
Co. (C. C.), 116 Fed. 867, that ‘it can
not be true that on the eastern trip
the provisions of the act of congress
would be binding upon the company,
because the cars were loaded, but
would not be binding upon the return
trip, because the cars are empty.”
Johnson v. Southern Pac. Co., 196 U.
S. 1, 49 L. Ed. 363, 25 S. Ct. 158.

See to the contrary United States
v. Illinois Cent. R. Co. (D. C.), 156
Fed. 182.

51. Danger the same, whether car
is empty or loaded.—United States v.
St. Louis, etc., R. Co. (D. C.), 154 Fed.
516.
§§ 222-223 THE SAFETY APPLIANCE ACT. 476
ment, becomes a car engaged in interstate commerce. It is a part of the
current. The interstate car cannot move except with relation to the empty
car. The empty car may at any moment be coupled to the interstate car.
A brakeman engaged in performing some duty in respect to the interstate
car may be compelled to pass over or use a grab iron on.the empty car or
couple the empty car to the interstate car. Endless confusion would arise
if any distinction was made under such conditions between a car loaded with
interstate traffic and an empty car regularly used in the movement of inter-
state traffic, but at the time unloaded and coupled to another car actually
in use in the movement of interstate traffic.52 And the hauling, even to
repair, of empties is within the statute when this is done in connection with
other interstate cars.58

Interurban Cars.—Cars of an interurban line are within the provisions
of the act when such line is doing an interstate business and their use upon
the streets of a city is practically limited to going to and from the depot.5#

§ 223. Vehicles Set Aside for Repairs.—A car while retained on a
repair track out of all connection with other vehicles in commercial use, is
not subject to the act.55 In order to be so disconnected from cars in com-
mercial use that the act will not apply, the defective car must be not only
not actually connected with any such car at the time, but must be so situated
that in the natural and regular course of switching operations, it is not sub-
ject to be directly connected or come in collision with cars commercially
used.56 In Southern R. Co. v. Snyder, 109 C. C. A. 344, 187 Fed. 492, the
court said:

“The fact that the car in question could have been, and was about to be,
taken from the transfer track without being connected with or without
the movement of the cars on the west end of the track, is not, to our
minds, necessarily controlling of the question whether the car was
withdrawn from use in connection with cars commercially engaged,
or from use in connection with cars engaged in interstate commerce.
If the cars then and there in commercial use were subject to be directly
connected with the car in question, in the natural and regular course
of switching operation, the connection contemplated by the statute
may have existed, notwithstanding the car was not actually connected
up with any cars at the time in commercial use. Again, if the cars to
the east of the car in question, and to which it was being connected,
_were themselves in commercial use, the car in question would still be
subject to the act.”

Thus a car which has been marked for repairs and was to be switched

52. United States v. Wheeling, etc.,
R. Co. (D. C.), 167 Fed. 198.

53. See post, “Hauling Cars to Re-
pair,” §§ 247-251.

54, Cars on interurban line—Spo-
kane, etc., R. Co. v. United States (U.
S.), 36 S. Ct. 668, affirming 210 Fed.
243, which affirmed 206 Fed. 988.

55. Vehicles set aside for repairs.—
Southern R. Co. v. Snyder, 109 C. C.
A. 344, 187 Fed. 492.

56. Southern R. Co. v. Snyder, 109 C.
C. A. 344, 187 Fed. 492; Southern R.
Co. v. Snyder, 124 C. C. A. 60, 205 Fed.
868. *
477 RAILROADS AND VEHICLES IN INTERSTATE COMMERCE. § 223

for that purpose before going further is still used in interstate commerce
when at the moment of the accident it was being switched in connection
with another interstate car.57 And where a car loaded with an interstate
shipment was refused by a connecting carrier because of a defect in the
coupler and placed in connection with other cars, by the defendant railroad
company upon a team track, which is a track used to load and unload ship-
ments directly into drays or wagons, such did not constitute its withdrawal
from interstate commerce even though so placed for the purpose of repair.5®
A car which is being repaired while temporarily stopped on its interstate
journey is engaged in interstate commerce to which the safety appliance
act applies.5® And a car which is billed to a repair shop but is not sent there,
nor to any place used especially for making repairs, but is only stopped
temporarily and intended to be used as soon as repaired, is in use as con-
templated in the act.6° And when a defect occurs or is discovered in a
car which is at the time associated with other cars used in interstate commerce
then the railroad would be permitted to remove such car from connection with
the others without being guilty of a violation of the act.61 In Siegel v.
New York Cent., etc., Railroad (C. C.), 178 Fed. 873, 876, the court said:

“But it was expressly held in Chicago, etc., R. Co. v. United States, 93
C. C. A. 450, 168 Fed. 236, 21 L. R. A., N. S., 690, reversing 157 Fed.
616, that the necessary movement of a defective car by itself, for the
purpose of repair only, and not in conjunction with cars commercially
used, does not subject the carrier to the penalties of the law. Repair
shops, as it is pertinently said, cannot be kept on wheels; and a carrier
may therefore move one or more defective cars by themselves to such
shops, for the purpose of having them put in a condition to conform to
the requirements of the safety appliance acts, provided such cars are ex-
cluded from commercial use themselves, and from connection with other
cars which are being used commercially. And much more may a crip-
pled car be shifted about upon the tracks of a railroad yard, in order
to separate it from others, and put it where it can be properly attended
tos” 6?

57. Great Northern R. Co. v. Otos,
239 U. S. 349, 36 S. Ct. 124.

58. Cars held not to be set aside.
—Delk v. St. Louis, etc. R. Co., 220
U. S. 580, 55 L. Ed. 590, 31 S. Ct. 617.

59. Lorick v. Seaboard, etc. Rail-
way, 102 S. C. 276, 86 S. E. 675.

60. Car billed to repair shop.—Erie
R. Co. v. Russell, 106 C. C. A. 160, 183
Fed. 722.

61. Separating defective cars.—Sie-
gel v. New York Cent., etc., Railroad
(C. C.), 178 Fed. 873.

62. But on this point, see post,
“Hauling Cars to Repair,” §§ 247-251.
CHAPTER XXXII.

INSTRUMENTALITIES TO BE EQUIPPED AND SUFFICIENCY OF EQUIPMENT.

1. Foreign Cars, § 224.
2. Interchangeable Equipment, § 225.
3. Air brake, §§ 226-228.
a. Requirements of Statute and Interstate Commerce Commission, § 226.
b. Engines with Brakes and Air Power, § 227.
c. Trains with Power Brakes, § 228.
4, Automatic Couplers on Cars, §§ 229-235.
. Vehicles Embraced under Term “Cars,” § 229.
. Cars Engaged in Switching, § 230.
. Complete Equipment of Each Car, § 231.
. Empty Cars, § 232.
. Test of Sufficiency, § 233.
. Standard and Design of Coupler, § 234.
. Defective or Inoperative Couplers, § 235.
5. Grab Irons, Handholds, Hand Brakes, Ladders, Running Boards, etc., §§
226-239,
a. Requirements of Statute and Interstate Commerce Commission, § 236.
b. Vehicles to Which Applicable, § 237.
c. Object, Number and Location, § 238.
d. Lack of Equipment When Other Appliances Afford Equal Protection,
§ 239.
6. Drawbars of Standard Height, §§ 240-243.
. Requirements of Statute and Interstate Commerce Commission, § 240.
. Vehicles to Which Applicable, § 241.
Variations in Height, § 242.
. Devices to Maintain Height, § 243.

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§ 224. Foreign Cars.—The act forbids a railroad to use, to haul, or
permit to be hauled or used, cars not equipped with appliances as required
regardless of the question of ownership.! Section 3 of the original act ?
provides that “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 § 1 of this act, it may law-
fully refuse to receive from connecting lines of road or 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.” But no provi-
sion is made regarding other appliances. However it has been decided that
one company is under no obligation to receive from any other company cars
defective as to safety appliances,? and, when it does receive cars from

; 1. Foreign cars.—Missouri, etc., R. 8. United States v. Chicago, etc., R.
Co. v. Barrington (Tex. Civ. App.), Co. (D. C.), 149 Fed. 486; United
173 S. W. 595, 597. States v. Southern Pac. Co. (D. C.),

2. Act March 2, 1893, c. 196, 27 St. 167 Fed. 699.
531.

478
479 EQUIPMENT AND SUFFICIENCY OF EQUIPMENT.  §§ 224-225

another company at any point, it must know, at its peril, that each car so
received is equipped with the safety appliance required, and that such appli-
ances are in good order and condition.4

Therefore, when an interstate carrier receives and hauls a defectively
equipped foreign car it violates the act. And the fact that the car belonged
to another company and had not been in defendant’s hands a sufficient time
to discover a defect by reasonable inspection .will not excuse defendant,®
and an instruction on the defendant’s duty to inspect them is properly re-
fused.?7. In Grand Trunk, etc., R. Co. v. Poole, 175 Ind. 567, 93 N. E. 26,
the court said:

“These instructions might have been relevant and proper in a common-
law action, based upon a defect in a foreign car, but the paragraphs of
appellee’s complaint involving the defective coupling on a foreign car
were founded on the specific provisions of state and federal statutes,
imposing upon appellant an imperative duty to use no car, without
regard to ownership, unless equipped with automatic couplers in nor-
mal working condition.”

§ 225. Interchangeable Equipment.—While at first devices used in
order to conform to the act would generally work with those of the same
make and type, they would not do so with those of another kind. This was
not sufficient. It is necessary that each type work as well with those of an-
other type as it does with its own.8 In Southern R. Co. v. Crockett, 234
U.S. 725, 58 L. Ed. 1564, 34 S. Ct. 897, the court said:

“The experience of the interstate commerce commission, in seeing to the
enforcement of the act of 1893, tended to emphasize the importance
of interchangeable equipment upon the rolling stock of railroads en-
gaged in interstate commerce, so that cars used in such commerce would
readily couple with cars not so used, and that locomotives could be
readily coupled with cars of either sort. The 16th Annual Report of
the commission, 1902, p. 61, recommended to congress, inter alia: ‘That

4, United States v. Southern Pac.
Co. (D. C.), 167 Fed. 699; Missouri,
etc., R. Co. v. Plemmons (Tex. Civ.

the same penalty in hauling such cars
when in such defective condition that
it would if they were its own cars.
Each defendant

App.), 171 S. W. 259, 262.

5. United States v., Chicago, etc., R.
Co. (D. C.), 149 Fed. 486; United States
v. Chicago, etc. R. Co. (D. C.), 162
Fed. 775; Grand Trunk, etc, R. Co.
v. Poole, 175 Ind. 567, 93 N. E. 26.

See also, United States v. Chicago,
etc., R. Co. (D. C.), 143 Fed. 353. De-
cided on ground of joint liability.

“Tt appears from the evidence that
some of the cars alleged to have been
hauled or used by the, defendant in
violation of the law were not its own
cars, but were the cars of some other
company. This fact is wholly imma-
terial. If such cars were in defective
condition, as contended on behalf of
the plaintiffs, no matter to whom they
belonged, the defendant would incur

car hauled by the
must have been equipped with the re-
quired couplers and hand holds so that
it could be coupled to, and uncoupled
from, other cars by its own couplers,
irrespective of the couplers or hand
holds of the other car to which it was
coupled, or was to be coupled.”
United States v. Chicago, etc., R. Co.
(D. C.), 162 Fed. 775, 781.

6. Inspection for defects. — Texas,
etc., R. Co. v. Sherer (Tex. Civ. App.),
183 S. W. 404.

7. .Instructions on inspection. —
Grand Trunk, etc., R. Co. v. Poole, 175
Ind. 567, 93 N. E. 26.

8. Interchangeable equipment.—See
post, “Standard and Design of Coup-
ler,” § 234.
§§ 225-226 THE SAFETY APPLIANCE ACT. 480

provisions relating to automatic couplers, grab irons, and the height
of drawbars, be made to apply to all locomotives, tenders, cars, and
similar vehicles, both those equipped in interstate commerce and those
used in connection therewith (except those trains, cars, and locomotives
exempted by the acts of March 2, 1893, and April 1, 1896).’ This
recommendation appears to have been evoked by the decision of the
circuit court of appeals in Johnson v. Southern Pac. Co., 54 C. C. A.
508, 117 Fed. 462, 12 Am. Neg. Rep. 398, afterwards reversed by this
court in 196 U. S. 1, 49 L. Ed. 363, 25 S. Ct. 158, 17 Am. Neg. Rep.
412. The court of appeals held that there was nothing in the act of
1893 to require a common carrier engaged in interstate commerce to
have every car on its railroad equipped with the same kind of coupling,
or to require that every car should be equipped with a coupler that
would couple automatically with every other coupler with which it
might be brought into contact; and also that the act did not forbid
the use of an engine not equipped with automatic couplers. Congress
not only responded to the recommendation of the Commission, but en-
larged the act more broadly by enacting * * * that the provisions
and requirements of the original act should be held (a) to apply to
common carriers by railroads in the territories and the District of Co-
lumbia; (b) to apply in all cases, whether or not the couplers brought
together are of the same kind, make, or type; (c) that ‘the provisions
and requirements * * * 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 exempted
by the act of March 2, 1893, as amended Avpril 1, 1896, and those used
upon street railways.”

§§ 226-228. Air Brake—§ 226. Requirements of Statute and
Interstate Commerce Commission.—Under § 1 of the original act it
was unlawful to: “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 ttaffic 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.” But this was amended by the act of 1903 so that the ‘“‘suffi-
ciency” of the air power, as provided in the original act, was changed so
as to require fifty per cent of the cars of a train associated together, shall
have their air brakes operating. This amendment also gave the interstate
commerce commission power to raise the minimum per cent which was done
by an order of Nov. 15, 1905 to seventy-five per cent, and this order was
changed by one of June 6, 1910 to become effective Sept. 1, which is now in
force requiring a minimum of eighty-five per cent.®

9. Requirements of statute and interstate commerce commission.—For text
of order, see Appendix B.
481 EQUIPMENT AND SUFFICIENCY OF EQUIPMENT.

§ 227

§ 227. Engines with Brakes and Air Power.—By § 1 it is provided
that “it shall be unlawful * * * touse * * * any locomotive engine
* * * not equipped with a power driving-wheel brake and appliances for
operating the train-brake system.” The purpose of the legislature was to
provide, among other things, for a more efficient and effective way of hand-
ling trains so that their speed and movement might be regulated and con-
trolled, and, when desired and in cases of emergency, readily brought to
a stop, all from the engine and by the one person in charge of it, thereby
to lessen the danger to employees and the public incident to the operation of
the railroad.1° Therefore an electrically propelled locomotive is as well within
the act as one propelled by steam.1! Though no doubt when the act was
passed, electrically propelled trains were not within the legislative mind and
the term “locomotive engine” had reference only to one propelled by steam.
And, too, the term “engineer” applies to one in control of such an engine.
But this does not signify that other locomotive or motor engines, may not
come within the scope and intendment of the act. In Spokane, etc., R. Co. v.
Campbell, 133 C. C, A. 370, 217 Fed. 518, the court said:

“The electric railroad has since come into very general use, with its

driving engines called motors, and its employees in charge of the en-

10. Engines with brakes and air
power.—In United States v. Louis-
ville, etc., R. Co. (D. C.), 162 Fed. 185,
187, affirmed in 174 Fed. 1021, the .fol-
lowing is the charge to the jury for a
violation of this section, “The third
count of the complaint is somewhat
different from the others—not in prin-
ciple, but in the facts alleged. The al-
legations in this count are that the de-
fendant used on its line of railroad a
locomotive engine, L. & N. 519, to
haul a car A. C. L. No. 22246, contain-
ing merchandise consigned from a
point in Louisiana to a point in Flor-
ida; that on or about February 18,
1907, defendant used said locomotive
engine to haul said car with said in-
terstate traffic over its line of railroad
when the air pump on said engine was
inoperative, and when said engine was
not equipped with a power driving-
wheel brake and appliances for .oper-
ating the train brake system. The law
provides that it shall be unlawful for
any common carrier engaged in inter-
state commerce by railroad to use on
its line any locomotive engine in mov-
ing interstate traffic not equipped with
a power driving-wheel brake and ap-
pliances for operating the train braké
system. The court charges you that
if you find from the evidence that the
defendant used on its line of railroad
said locomotive engine, and that it was.
hauling a car containing merchandise
consigned from a point in Louisiana to

Fed Act—31

a point in Florida, that it was moving
interstate traffic, and if you ‘further
find from the evidence that said en-
gine was not equipped with a power
driving-wheel brake and appliances for
operating the train brake system, then
your verdict should be for the United
States. If you are not satisfied from
the evidence that the defendant was
using a locomotive engine moving in-
terstate traffic as alleged, or you are
not satisfied that said engine was not
equipped with a power driving-wheel
brake and appliances for operating the
train brake system, then in either case
your verdict should be for the defend-
ant under the third count of the com-
plaint.”

Evidence heid to show defect.—Evi-
dence that an employee applied the
brakes which subsequently released
will be sufficient to warrant a finding
that they were in some manner de-
fective when there is testimony that
when in proper order they would have
stopped a car within 300 feet, but in
this case the car continued on 600 feet
when it collided with an other car.
Spokane, etc., R. Co. v. Campbell (U.
S.), 36 S. Ct. 683.

11. Electrically propelled locomo-
tives —Spokane, etc, R. Co. v. Camp-
bell (U. S.), 36 S. Ct..683; Spokane,
etc., R. Co. v. Campbell, 133 C. C. A.
370, 217 Fed. 518, affirmed in 36 S.
Ct. 668.
§§ 227-228 THE SAFETY APPLIANCE ACT. 482

gines are called motormen or enginemen. ‘These railroads, notwith-
standing, are common carriers of property and persons, the same as
steam railroads, and have employees and come into relation with the
public in the same way, the only essential difference being that- elec-
tricity has taken the place of steam as a propelling agency or force,
with differently contrived engines, suited to the harnessing of the pro-
pelling agency to the use desired, so that the broad purpose of the leg-
islature applies as completely to the one kind of railroad as to the other.
In a narrower sense, a locomotive engine is spoken of as an engine
propelled by steam; but when the statute, as the amendment does, ex-
tends the provisions of the act to apply to all trains, locomotives, ten-
ders, cars, and similar vehicles used on any railroad engaged in inter-
state commerce, and to all other locomotives, tenders, cars, and similar
vehicles, it broadens the significance so as, without question, to include
motors electrically propelled, used upon railroads engaged in interstate
commerce. So, also, the original act, with its amendment, includes the
operators of such engines, whether called engineers or motormen. We
think the statute is broad enough to require that electrically propelled
engines and trains engaged in interstate commerce, as well as steam-
propelled engines and trains, shall be equipped with air brakes for their
efficient operation and control.”

§ 228. Trains with Power Brakes.—By § 1 of the original act is
provided also that “it shall be unlawful * * * to run any train * * *
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 brakemen to use the common hand brake
for that purpose.”

Definition of Train.—The question at once arises as to what constitutes
a “train.” In United States v. Grand Trunk R. Co. (D. C.), 203 Fed. 775,
the court said:

“In Webster’s Dictionary the word ‘train’ is defined as a ‘connected line
of cars or carriages on a railroad.’ In Detroit City Railway v. Mills, 85
Mich. 634, 48 N. W. 1007, it is stated that a ‘train is a continuous or
connected line of cars or carriages on a railroad.” In Dacey v. Old
Colony R. Co., 153 Mass. 112, 26 N. E. 437, and in Carson v. Boston,
etc., R. Co., 164 Mass. 523, 42 N. E. 112, a train is defined to be ‘a
locomotive and one or more cars coupled together and run upon a
railroad.’ These definitions induce the belief that congress, in enact-
ing the safety appliance act, used the word ‘train’ in the ordinary and
not the technical sense, regardless of the varying rules and practices of
carriers. The Supreme Court of the United States in Johnson v,
Southern Pac. Co., 196 U. S. 1, 49 L. Ed. 363, 25 S. Ct. 158, supports
the view that, even though the statute was in derogation of the com-
mon law, it should not be so strictly construed as to defeat the purpose
of congress, and it was there held that locomotive engines are included
in the act under the words ‘any car.’ By a parity of reasoning the
words ‘any train’ are believed to clearly include all trains having cars
coupled together and locomotives drawing them, irrespective of whether
a caboose is attached or markers displayed.”
483 EQUIPMENT AND SUFFICIENCY OF EQUIPMENT.

§ 228

When a train is made up and operated it retains its ideritity as a single train
until its destination is reached, and the locomotive and cars composing the
same are placed on switches or made up into other trains. If a train is
scheduled to run regularly as one train between two points, and does so run
between these points, within the meaning of the act it was but a single train,
though certain of the cars composing it when it started on the run may have
been set out and others placed therein at different stations along the line,
and even though the train crew and the engine and caboose were changed
and another engine and another crew hauled it a part of the distance.!?
Application to Switching Operations.—By reference to the statutory
requirements it will be seen that the air equipment is only required on trains,
and does not apply to ordinary switching operations in yards.1? A train in
the sense intended consists of an engine and cars which have been assembled
and coupled together for a run or trip along the road. When a train is
thus made up and is proceeding on its journey it is within the operation of
the air-brake provision. But it is otherwise with the various movements in
railroad yards whereby cars are assembled and coupled into outgoing trains,

12. When identity changed.— United
States v. Chicago, etc., R. Co. (D. C.),
162 Fed. 775. But see United States v.
Boston, etc., R. Co. (D. C.), 168 Fed.
148, where a change of engine is held
to constitute another train.

13. Application to switching opera-
tions.— United States——United States v.
Erie R. Co., 237 U. S. 402, 59 L. Ed.
1019, 35 S. Ct. 621; United States v.
New York Cent., etc., R. Co. (D. C.),
205 Fed. 428. See also, Rosney v. Erie
R. Co., 68 C. C. A. 155, 135 Fed. 311.

New Jersey—Farrell v. Pennsylva-
nia R. Co., 87 N. J. L. 78, 93 Atl. 682.

North Carolina—Worley v. Southern
R. Co., 169 N. C. 105, 85 S. E. 397.

Pennsylvania.—Whalley wv. Philadel-
phia, etc., R. Co., 248 Penn. 298, 93
Atl. 1016.

Negligence is not shown when pred-
icated upon the violation of the safety
appliance act, for a failure to have
the power brakes coupled up, when the
cars, upon which plaintiff was injured
by using a stick on a hand brake, were
being switched in a. switching yard.
Worley v. Southern R. Co., 169 N. C.
105, 85 S. E. 397.

“And in Erie R. Co. v7. United States,
116 C. C. A. 649, 197 Fed. 287, in con-
struing the same acts of congress, it
was held that they were not meant to
cover bona fide switching operations,
and were not intended to apply to the
sorting and switching work carried on
in a terminal yard. Following the con-
struction thus placed upon a federal
law by the federal courts in this dis-

trict, the trial judge entered judgment
for defendant non obstante veredicto.
In so doing we think he was fully jus-
tified. -It would ill become us to give
to a federal statute a construction dif-
fering from that adopted by the federal
courts, in considering its application
to the precise state of facts now be-
fore us. The same question was con-
sidered upon an appeal, from a judg-
ment upon a verdict directed in favor
of the railroad company, in United
States v. Erie R. Co., 129 C. C. A. 307,
212 Fed. 853. There the question of
the compulsory use of air-brake equip-
ment in switching operations was elab-
orately considered, and it was held
that the act of congress does not com-
pel the air coupling of cars in switch-
ing movements. The conclusion there
reached is supported by reasoning
which is convincing. The record in
this case seems, to us, to clearly show
that the proximate cause of the injury
was the pulling out, or breaking, of
the drawhead, which permitted the
rear part of the train to run backward
until it collided with the engine of the
train behind. But as to this, there was
no evidence that the defendant was, in
any respect, negligent, and it can not
be made the basis of any claim of lia-
bility. We do not see that the record
discloses anything upon which it may
fairly be held that the plaintiff is en-
titled to recover.’”” Whalley v. Phila-
delphia, etc., R. Co., 248 Penn. 298, 93
Atl. 1016.
§ 228

THE SAFETY APPLIANCE ACT.

484

and whereby incoming trains which have completed their run are broken up.
These are not train movements, but mere switching operations, and so are

not within the air-brake provision.!+

It would seem that a switching operation in order to be such within the
statute must be confined to one yard and when an engine with cars goes out-
side where all the dangers of regular road operation are to be encountered
it ceases to be switching and the requisite percentage of air brakes must be
coupled.15 Certain it is that a movement from one yard to another when the
run is over a part of the main line, across track of other roads, pass numer-
ous switches, through tunnels and over bridges, is more than a switching
operation, even though the train is controlled by a yard or switching crew,
does not carry a caboose, and is not under orders from the train dis-

patchers.16

14. Train and . switching  distin-
guished—United States v. Erie R.
Co., 237 U. S. 402, 59 L. Ed. 1019, 35
S. Ct. 621.

15. Movements outside of yards.—
United States v. Chicago, etc., R. Co.,
237 U. S. 410, 59 L. Ed. 1023, 35 S.
Ct. 634; United States v. Pere Mar-
quette R. Co. (D. C.), 211 Fed. 220;
United States v. Grand Trunk R. Co.
(D. C.), 203 Fed. 775; Stearns v. Chi-
cago, etc. R. Co. 166 Iowa 566, 148
N. W. 128. See, also, United States v.
Atlantic, etc., R. Co. (D. C.), 214 Fed.
498.

“The undisputed facts show that the
cars constituting the train were hauled
from Black Rock, in Buffalo, to
Bridgeburg, in Canada, a distance of
approximately two miles, over a draw-
bridge crossing the Barge Canal and
over the International Bridge across
Niagara river. The cars were not en-
gaged in the performance of a switch-
ing operation, nor were they moving
in the yard of the defendant company;
but the evidence as to one cause of
action set forth in the complaint
shows that 9 cars were coupled and
loaded, and hauled by a locomotive,
and, as to the other cause of action,
that there were 25 coupled, loaded cars
similarly hauled on the main track to
Bridgeburg, from whence they were
destined to other points. I think the
journey was fairly initiated at Buffalo,
and that the cars coupled to the loco-
motive constituted a train, and that
the operators of the train constituted
a train crew, even though orders from
the train dispatcher of the defendant
‘were not given to them at Buffalo,
but were given to another crew re-
lieving them at Bridgeburg.” United
States v. Grand Trunk R. Co. (D. C.),
203 Fed. 775, 776.

If § 1 of the original safety appliance act stood alone, there

16. Movement between yards. —
United States v. Erie R. Co., 237 U.
S. 402, 59 L. Ed. 1019, 35 S. Ct. 621;
United States v. Chicago, etc., R. Co.,
237 U. S. 410, 59 L. Ed. 1023, 35 S.
Ct. 634; Atchison, etc, R. Co. vw.
United States, 117 C. C. A. 341, 198
Fed. 637; United States wv. Grand
Trunk R. Co. (D. C.), 203 Fed. 775;
United States v. Pere Marquette R.
Co. (D. C.), 211 Fed. 220; Chesapeake,
etc, R. Co. vw. United States, 141 C.
C. A. 439, 226 Fed. 683;. La Mere v.
Railway Transfer Co., 125 Minn. 159,
145 N. W. 1068, Ann. Cas. 1915C, 667.

Where trains were stopped at a yard
eight miles out of a large city and
there broken up and the cars assem-
bled into a train to run into the inner
city yards upon which run it crossed

- switches, lead tracks and main tracks

of plaintiff also a draw bridge and
three railroads, going. six or eight
miles an hour, though they were’ un-
der the control of the yard master and
not the train dispatcher and handled
by switching crews and not road
crews, they are within § 1 of the act
recuiring 75 per cent air brakes con-
trolled by the engineer. Atchison,
etc.. R. Co. v. United States, 117 C.
C. A. 341, 198 Fed. 637.

The Federal Safety Appliance Act
requiring air brakes in operation on
all trains, applies to an engine and 15
cars loaded and switched in the yards
of the defendant transfer railway com-
pany, and placed upon a track set
apart for the use of a particular road,
and thereafter moved by the engine
and crew some six or seven blocks, a
distance of something like a half mile,
across a number of switches, and
across and along the two parallel main
tracks of an independent railroad, and
into the yards of the company to
485 EQUIPMENT AND SUFFICIENCY OF EQUIPMENT. § 228

would be at least room for argument that its provisions were intended by
congress to apply solely to trains made up for road service. But this sec-
tion does not stand alone. ‘It must be construed in connection with the other
sections of the same statute, and particularly in connection with, and with
reference to, the modifying and explanatory act of March 2, 1903. In and
by the latter act congress has removed whatever doubt, uncertainty, or am-
biguity existed in the former one, and has said plainly and unequivocally
that the provisions and requirements of the earlier act “shall be held to
apply to all trains, locomotives, tenders, cars‘and similar vehicles used on
any railroad engaged in interstate commerce.” The legislative intent so
plainly expressed must be respected.17

The controlling test of the act’s application lying in the essential nature
of the work rather than the make up of the train, or the name applied to
those engaged in operating it.18 In United States v. Erie R. Co., 237 U.S.
402, 59 L. Ed. 1019, 35S. Ct. 621, 624, the court said:

“We are persuaded that the transfer trains moving from Jersey City and

Weehawken to Bergen and vice versa came within the purview of the

air-brake provision.

They were made up in yards like other trains,

and then proceeded to their destinations over main-line tracks used by
other freight trains, both through and focal. They were not moving

which the cars belonged. La Mere v.
Railway Transfer Co., 125 Minn. 159,
145 N. W. 1068, Ann. Cas. 1915C, 667.

17. United States v. Pere Marquette
R. Co. (D.'C.), 211 Fed. 220.

18. United States v. Chicago, etc.,
R. Co., 237 U. S. 410, 59 L. Ed. 1023,
35 S. Ct. 634; United States v. Pere
Marquette R. Co. (D. C.), 211 Fed.
220.

“The facts disclosed by the evidence
are these: The defendant operates a
railroad which passes through Kansas
City, Missouri, and is used largely in
interstate commerce. Among its ter-
minal facilities at that point are two
freight yards. * * * These yards
are on opposite sides of the Missouri
river, the distance between their near-
est points being about 2 miles. The
track connecting them is one by which
passenger and treight trains enter and
leave the city; in other words, a main-
line track. For a distance of 3,000 feet
it is upon a single-track bridge span-
ning the river, and off the bridge it
intersects at grade twelve or fifteen
tracks of other companies and passes
through the Union Depot tracks. Be-
sides its use by the defendant’s trains,
a considerable portion of it is also
the line by which the passenger trains
and some of the freight trains of the
Rock Island and’ Wabash railroads en-
ter and leave the city. Both yards are
used for receiving and breaking up in-

coming trains, assembling and starting
outgoing trains, and assorting, stor-
ing, and distributing cars. To reach
their ultimate destinations, whether on
the defendant’s road or on those of
other carriers, a large proportion of
the cars have to be moved from one
yard to the other, and this is accom-
plished by transfer trains which are
run over the main-line track connect-
ing the yards. These trains usually
consist of an engine and about thirty-
five cars. * * Each train is
moved as a unit from one yard to the
other. * * * According to the fair
acceptation of the term they were
trains in the sense of the statute.”
United States v. Chicago, etc., R. Co.,
e37 U. S. 410, 59 L. Ed. 1023, 35 S.
Ct. 634.

“It must be conceded that 16 cars
and a locomotive coupled and moved
together for two miles upon the main
tracks of a railroad line through a
large city and across several streets
constitute a train within the purview
of the statute. Plaintiff’s witnesses
have called the movement of this train
a ‘transfer’ movement, while defend-
ant’s witnesses insist that it was purely
a ‘switching’ movement. The name
given to the movement is of no im-
portance, and its character may not be
controlling.” United States v. Pere
Marquette R. Co. (D. C.), 211 Fed.
220, 222.
§ 228 THE SAFETY APPLIANCE ACT. 486

cars about in a yard or on tracks set apart for switching operations,
but were engaged in main-line transportation, and this in circumstances
where they had to pass through a dark tunnel, over switches leading to
other tracks, and across passenger tracks whereon trains were fre-
quently moving. Thus it is plain that in common with other trains
using the same main-line tracks, they were exposed to hazards which
made it essential that appliances be at hand for readily and quickly
checking or controlling their movements. The original act prescribed
that these appliances should consist of air brakes controlled by the en-
gineer on the locomotive, and the act of 1903 declared that this require-
ment should ‘be held to apply to all trains.’ We therefore conclude
and hold that it embraced these transfer trains.”

Necessity to Use Power on All Cars.—The statute does not require
all cars which may be equipped. with power brakes to be coupled or as-
sociated together but only a certain per cent of such cars, but it does re-
quire all that may have been equipped with power brakes and actually
associated with that per cent to be controlled by the engineer from the
‘locomotive. The statute contemplates and allows that there may be cars
in the train equipped with air brakes and not associated with the per-
centage operated from the engine. The word “associated,” as here used,
manifestly means the cars immediately connected with the percentage
equipped with power brakes and operated from the engine; and those
associated cars are also required to be operated from the engine. But the
terms of the statute, not only fail to require all cars of the train to be
equipped with air brakes operated from the engine, but impliedly excludes
such requirement, by expressing the requirement that such cars when as-
sociated with the minimum number of cars shall be so equipped.1® If
there may be cars in a train which are not required to be connected with
the air power, it is no violation of the act to have among such cars those
which have no air brake equipment, or upon which the equipment is de-
fective.?°

Liability When Full Percentage Used.—When the railroad has in
operation in a train the required percentage of cars equipped with power
it would seem that the act is complied with and there would be no liability
for a penalty.2!_ The failure to have more than is required is not evidence

19. Necessity to use power on all
cars.—United States v. Baltimore, etc.,
R. Co. (D. C.), 176 Fed. 114; Lyon v.
Charleston, etc., Railway, 77 S. C. 328,
58 S. E. 12.

“The act does not say all power
braked cars in a train shall have their
brakes used and operated. There is a
qualification which must mean that
only such power braked cars ‘which
are associated together with said’ 75
per cent shall have their brakes used.
That clearly contemplated that there
might be some power braked cars not
associated with the 75 per cent, which

need not have their air brakes used
and operated.’’ United States v. Bal-
timore, etc., R. Co. (D. C.), 176 Fed.
114, affirmed but not on merits in 107
C. C. A. 586, 185 Fed. 486.

20. Cars with defective brakes, —
United States v. Baltimore, etc., R. Co.
(D. C.), 176 Fed. 114.

21. Liability when full percentage
used.—See United States v. Baltimore,
etc, R. Co. (D. C.), 176 Fed. 114, af-
firmed (not on merits) in 107 C. C. A.
586, 185 Fed: 486, where a nonsuit was
directed for insufficient evidence (or- -
ders requiring the use of hand brakes
487 EQUIPMENT AND SUFFICIENCY OF EQUIPMENT. § 228

of negligence.??, In Lyon v. Charleston, etc., Railway, 77 S. C. 328, 58 S.
E. 12, the court said:

“The statute fixes 50 per cent as the proportions of the cars required to
be equipped with air brakes operated from'the engine, and in the face
of this provision the court would be going very far to hold it to be
evidence of negligence under the statute not to have all the cars so
equipped.”

Use of Hand Brakes.—Requiring brakemen to use the common hand
brake for controlling the speed of the train, is within the prohibition of
this section, 2? and their use to control the ordinary movement of a train,
is a violation of the statute even though the train is equipped’ with power
brakes as required.2+ In Virginia R. Co. 7. United States, 139 C. C. A.
278, 223 Fed. 748, the court said:

“In our judgment the legislation here considered manifests the plain in-
tention of congress to require the control of trains in ordinary line
movement by the train brakes prescribed, and to make unlawful the
use of hand brakes for that purpose. True, the use of hand brakes is
not in express terms prohibited; but this is the necessary implication
of the language used, and it admits of. no other reasonable construc-
tion. It was the evident purpose of the train brake provision to
prevent the danger resulting from the operation of hand brakes on the
tops of cars in moving trains. Just as the object of the automatic
coupler is to keep employees from going between cars, so the object
of the train brake is to keep employees from going on top of cars to
set and release the hand brakes. The purpose of the law is the guide
to its interpretation, as the courts have repeatedly said. For example,
in Erie R. Co. v. United States, 116 C. C. A. 649, 197 Fed. 287, where

being all offered), the court said: later act, but rather affirmed therein

“Proof of the mere fact that hand
brakes were used on the Sand Patch
grade would not be evidence that the
trains were not properly equipped with
the requisite number of power brake
cars.”

“The act of 1893 was amended by
the act of 1903. By the latter the
number of cars in any train to have
their brakes used and operated by the
engineer is fixed at a minimum of 50
per cent. In this respect § 1 of the
act of 1893 was amended. In that act
the minimum was expressed by ‘suffi-
cient,’ a word than which no clearer
could be chosen from our language to
indicate a minimum quantity, and yet
a word indicating various require-
ments to various men operating rail-
roads under various conditions. It is
therefore apparent that one of the pur-
poses of the amendment was to render
certain that which was uncertain. If,
however, this were not so, yet the
power given to the commission to ex-
tend the time for compliance with the
original act was not taken away by the

by the provision that the commission
could from time to time increase the
minimum of 50 per cent. In the ex-
ercise of that power the minimum was
increased and is now 75 per cent. It
seems, therefore, that if a train now
has 75 per cent of its cars used and
operated by the engineer, and if there
is no other infraction of the law, a
jury should not be permitted to find
that the train has not a ‘sufficient’
number of cars equipped as required.
But whether the train is improperly
equipped is a question of fact, and
must be proven by the party who as-
serts the affirmative.” United States
v. Baltimore, etc. R. Co. (D. C.), 176
Fed. 114, 116, affirmed (not on merits)
in 107 C. C. A. 586, 185 Fed. 486.

22. Lyon v. Charleston, etc., Rail-
way, 77 S. C. 328, 58 S. E. 12.

23. Use of hand brakes.—Virginian
R. Co. v. United States, 139 C. C. A.
278, 223 Fed. 748.

2%. United States v. Great Northern
R. Co. (C. C. A.), 229 Fed. 927.
§§ 228-229 THE SAFETY APPLIANCE ACT. 488

it was held that the train brake requirement does not apply to switch-
ing movements in railroad yards, the court took occasion to say of
the act: ‘Its purpose was to compel railroads to equip trains in in-
terstate transit with air brakes, thereby contributing not only to the
safety of passengers and crews, but saving brakemen, so far as pos-
sible, from the dangers incurred in manipulating hand brakes.’ ”

The use of hand brakes in cases of emergency or extraordinary difficulty
is not only permissible 25 but cars are required to be equipped with such
brakes 26 for that use. But this is confined to their use in connection with
the power brakes 27 and not independent thereof.28

The convenience and economy in the operation of long trains will not
justify the discontinuance of the use of power brakes and the use of hand
brakes to control their speed. Where a railroad is constructed with the
prime object of hauling unusually long trains but in actual operation the
use of air power brakes for controlling their speed is found impracticable,
because when applied sufficiently to run at a low speed they would cause the
trains to stop, and if released before the trains came to a standstill, would
cause such a jerking and surging of the train as to break the cars apart, does
not show any emergency or extraordinary difficulty sufficient to permit the
use of hand brakes in place of power brakes. Such operating conditions
being of the railroad’s own creation, all that was necessary to be done was
to make up trains of a smaller number of cars which could be handled
without resorting to the use of hand brakes.?9

§§ 229-235. Automatic Couplers on Cars—§ 229. Vehicles Em-
braced under Term ‘‘Cars.’’ ?°—Under the original act the only two ve-
hicles mentioned were a locomotive under § 1, which was required to be
equipped with a power driving-wheel brake and appliances for operating the
train-brake system; the cars under § 2 required to be equipped with auto-
matic couplers and under § 4 required to be equipped with handholds and

25. In  emergency.—See. United

the need of hand brakes, are evidently
States v. Baltimore, etc, R. Co. (D.

of defendant’s own creation. All it has

C.), 176 Fed. 114; Virginian R. Co. v.
United States, 139 C. C. A. 278, 223
Fed. 748.

26. See Appendix “B.”

27. See United States v. Baltimore,
etc, R. Co. (D. C.), 176 Fed. 114.

28. Virginian R. Co. v. United
States, 139 C. C. A. 278, 223 Fed. 748.

29. Convenience and economy of
hand brakes.—Virginian R. Co. vw.
United States, 139 C. C. A. 278, 223
Fed. 748.

“The justification set up is that
trains of 100 cars can not be moved on
this stretch of track, at the slow speed of
10 miles an hour or less and kept under
safe control with the use only of the
prescribed power brake. But those op-
erating conditions, which occasioned

to do to comply with the law is to make
up trains of such smaller number of
cars as can be safely and properly har -
dled without resorting to the use of
hand brakes. In short, the mandate
of the congress is disregarded in this
instance, not because compliance in-
volves any physical difficulty which is
inherent or practically serious, but
merely because it involves some in-
crease of expense. It is too plain for
argument that no such reason can
serve to condone disobedience to the
command of the statutes.” Virginian
R. Co. vw. United States, 139 C. C. A.
278, 223 Fed. 748.

30. ‘Automatic couplers on cars.—
Time of operation as suspended by
Amendment of 1910, see ante, ‘“Con-
struction,” § 216.
489 EQUIPMENT AND SUFFICIENCY OF EQUIPMENT, § 229

grab irons; and under § 5 freight cars, the drawbars of which were required
to be of standard height. Only these vehicles being mentioned gave rise to
the question as to what was included in the term “cars” but much of the
uncertainty has been settled when by the amendment of 1903 it was declared
that the provisions of the act shall apply “to all trains, locomotives, tenders,
cars and similar vehicles.” A locomotive was, however, considered a “car”
within the meaning of § 2 of the original act.34

But it was said that this carinot be so because locomotives were elsewhere
in terms required to be equipped with power driving-wheel brakes, and that
the rule that the expression of one thing excludes another applies. That,
however, is a question of intention, and as there was special reason for re-
quiring locomotives to be equipped with power driving-wheel brakes, if it
were also necessary that locomotives should be equipped with automatic
couplers, and the word “car” would cover locomotives, then the intention
to limit the equipment of locomotives to power driving-wheel brakes, be-
cause they were separably mentioned, could not be imputed. Now it was
as necessary for the safety of employees in coupling and uncoupling, that
locomotives should be equipped with automatic couplers, as it was that
freight and passenger and dining cars should be, perhaps more so, “since
engines have occasion to make couplings more frequently.” 32

The tender of a locomotive, however, is not under ordinary operating
conditions distinct from the engine, but they are considered as an integral,
a car, and between these two an automatic coupler is not required, but
only at the rear of the tender.23 In Pennell v. Philadelphia, etc., R. Co.,
231 U. S. 675, 58 L. Ed. 430, 34 S. Ct. 220, the court said:

31. Cars as including locomotives. ers, and that its protection extends to

—Johnson v. Southern Pac. Co., 196
U. S. 1, 49 L. Ed. 363, 25 S. Ct. 158;
Southern R. Co. v. Crockett, 234 U. S.
725, 58 L. Ed. 1564, 34 S. Ct. 897;
United States v. Philadelphia, etc. R.
Co. (D. C.), 223 Fed. 215, 216; Pennell
v. Philadelphia, etc, R. Co., 122 C.
C. A. 77, 203 Fed. 681, affirmed 34 S.
Ct. 220; United States v. Southern R.
Co. (D. C.), 170 Fed. 1014. See also,
Moore v. St. Joseph, etc, R. Co.
(Mo.), 186 S. W. 1035. ;

“And manifestly the word ‘car’ was
used in its generic sense. There is
nothing to indicate that any particular
kind of car was meant. Tested by
context, subject-matter and object,
‘any car’ meant all kinds of cars run-
ning on the rails, including locomo-
tives: And this view is supported by
the dictionary definitions and by many
judicial decisions.” Johnson v. South-
ern Pac. Co., 196 U. S. 1, 49 L. Ed.
363, 25 S. Ct. 158, reversing 117 Fed.
462, 54 C. C. A. 508. ;

“That the act requires locomotives
to be equipped with automatic coup-

men when coupling as well as when
uncoupling cars, are points set at rest
by Johnson v. Southern Pac. Co., 196
U. S. 1, 49 L. Ed. 363, 25 S. Ct. 158,
17 Am. Neg. Rep. 412.” San Anto-
nio, etc. R. Co. v. Wagner (U. S.),
36 S. Ct. 626, 629.

82. Johnson v. Southern Pac. Co.,
196 U. S. 1, 49 L. Ed. 363, 25 S. Ct.
158, reversing 117 Fed. 462, 54 C. C.
A. 508.

33. Locomotive and tender as inte- .
gral.—Pennell v. Philadelphia, etc., R.
Co., 231 U. S. 675, 58 L. Ed. 430, 34
S. Ct. 220.

“Under the various safety appliance
acts the commission is charged with
the duty of prosecuting violations of
them which come to its knowledge,
and by the sundry civil appropriation
act of June 28, 1902 [32 Stat. at L.
419, chap. 1301], the commission was
authorized to employ inspectors to ex-
ecute and enforce the requirements of
the acts. It is of special significance,
therefore, that in its order under the
act of April 14, 1910 [36 Stat. at L.
§ 229 THE SAFETY APPLIANCE ACT. 490

“Engine and tender are a single thing; separable, it may be, but never
separated in their ordinary and essential use. The connection between
them, that is, between the engine and tender, it was testified, was in the
nature of a permanent coupling, and it was also testified that there was
practically no opening between the engine and tender, and that attached
to the engine was a drawbar which fitted in the yoke of the tender, and
the pin was dropped down to connect drawbar and yoke. The neces-
sary deduction from this is that no dangerous position was assumed by
an employee in coupling the engine and tender for the reason that the
pin was dropped through the bar from the tank of the tender. The
case at bar, therefore, is not brought either within the mischief or the
remedy of the act.”

The union of engine and tender is in large measure a permanent one, and
the act of joining the two is of such rare occurrence, and is so alien to
transportation, and an accident resulting from the joining of such parts so
unheard of, that congress could not have had it in view to require an auto-
matic coupler at that point.2+ Neither did the amendment of 1903, destroy
the integrity of the locomotive and tender though in that act each was
named as a class.35

The tender, however, has been classed as a car and an automatic coupler
required at the rear end,°* but as being distinct from the engine.37 But
this division of the parts of the locomotive can hardly be sustained in view
of the decision in Pennell v. Philadelphia, etc., R. Co.,28 and the require-
ments that cars be equipped with automatic couplers at both ends.9

The question arose as to whether a shovel car was within the contempla-
tion of the Federal Safety Appliance Act.4° The court below having ruled
that it was not in Schlemmer v. Buffalo, etc., R. Co., 205 U. S. 1, 51 L. Ed.
681, 27 S. Ct. 407, the court said:

“The latter question is pretty nearly answered by Johnson v. Southern
Pac. Co., 196 U.S. 1, 49 L. Ed. 363, 25 S. Ct. 158. As there observed:
‘Tested by context, subject-matter, and object, “any car” meant all

298, chap. 160, U. S. Comp. Stat. Supp.
1911, p. 1327], which was supplemental
of the other acts, designating the num-
ber, dimensions, location, and manner
of application of certain appliances, it
provided as follows: ‘Couplers: Lo-
comotives shall be equipped with au-
tomatic couplers at rear of tender and
front of locomotive. That is, coup-
lers were required where danger might
be incurred by the employees.” Pen-
nell v. Philadelphia, etc., R. Co., 231
U. S. 675, 58 L. Ed. 430, 34 S. Ct. 220.

34. Pennell v. Philadelphia, etc., R.
Co., 122 C. C. A. 77, 203 Fed. 681.

35. Pennell v. Philadelphia, etc., R.
Co., 231 U. S. 675, 58 L. Ed. 430, 34 S.
Ct. 220.

36. Tenders.—Winkler v. Philadel-
phia, etc, R. Co., 4 Pennewill (Del.),
80, 53 Atl. 90, affirmed in 56 Atl. 112.

Contra.—Larabee v. New York, etc.,
R. Co., 182 Mass. 348, 66 N. E. 1032.

37. Winkler v. Philadelphia, etc., R.
Co., 4 Pennewill (Del.), 80, 53 Atl. 90.

“A tender is defined to be a car by
Webster. The tender is not a loco-
motive engine, or component part
thereof, but is the small car carrying
water and fuel for the engine, and to
which the first passenger or freight
car of the train is usually coupled.”
Winkler v. Philadelphia, etc. R. Co.,
4 Pennewill (Del.), 80 Atl. 90.

88. 231 U. S. 675, 58 L. Ed. 430, 34
S. Ct. 220.

'89. See post, “Complete Equipment
of Each Car,” § 231.

40. Shovel car.—Schlemmer v. Buf-
falo, etc, R. Co. 205 U. S. 1, 51 L.
Ed. 681, 27 S. Ct. 407.
491 EQUIPMENT AND SUFFICIENCY OF EQUIPMENT. §§ 229-231

kinds of cars running on the rails, including locomotives. * * * The
object was to protect the lives and limbs of railroad employees by ren-
dering it unnecessary for a man operating the couplers to go between
the ends of the cars.’ These considerations apply to shovel cars as
well as to locomotives, and show that the words ‘used in moving inter-
state traffic’ should not be taken in a narrow sense. The later act of
March 2, 1903, chap. 976, 32 Stat. at L. 943, U. S. Comp. Stat. Supp.
1905, p. 603, enacting that the provision shall be held to apply to all
cars and similar vehicles, may be used as an argument on either side;
but, in our opinion, indicates the intent of the original act. Johnson v.
Southern Pac. Co., 196 U. S. 1, 49 L. Ed. 363, 25 S. Ct. 158. There
was an error on this point in the decision below.”

§ 230. Cars Engaged in Switching.—All cars used and hauled must
be equipped with automatic couplers. This requirement is broader and
more extensive than the one requiring air brakes on trains moved,*! and
embraces switching operations as well as train movements, for both involve
a hauling or using of cars.42, The coupling and uncoupling of cars, however,
is confined almost wholly to such operations, and to hold that it is not a
violation of the law to have the coupling and uncoupling apparatus in a
defective condition at such times would be a clear nullification, not only of
the language of the statute, but of its manifest purpose.*® And as the risks
incurred in coupling and uncoupling are more imminent on switching tracks,
where frains are made up and distributed, and where empty cars are set
out at freight houses or factory platforms to be loaded, than on the main
lines, it is not reasonable to suppose that congress intended to cover only
the smaller part of the dangers.#4

The main ground for the contention that switching operations were not
within the act was that such cars were not used or hauled in interstate com-
merce, but that they are so used was previously noted.#%

§ 231. Complete Equipment of Each Car.—The direction of con-
gress is that any common carrier, such as a railroad, must equip its cars
so that there shall be at each end of every car,*® a coupler which will couple

terstate Commerce,” § 222.
46. Complete equipment of each
car.—United States v. Denver, etc., R.

41. Cars engaged in switching.—See
ante, “Trains with Power Brakes,”
228.

42. United States v. Erie R. Co., 237
U. S. 402, 59 L. Ed. 1019, 35 S. Ct. 621;
United States v. Southern R. Co. (D.
C.), 170 Fed. 1014; United States v.
Atlantic, ete, R. Co. (D.C.), 214 Fed.
498; Chicago, etc, R. Co. v._ United
States, 127 C. C. A. 438, 211 Fed. 12;
Wabash R. Co. v. United States, 93
C. C. A.-393, 168 Fed. 1; Hurley v. Ill-
inois Cent. R. Co. (Minn.), 157 N. W.
1005.

48. Chicago, etc, R. Co. v. United
States, 127 C. C. A. 438, 211 Fed. 12.

44. Wabash R. Co. v. United States,
93 C. C. A. 393, 168 Fed. 1.

45. See ante, “Vehicles Used in In-

Co., 90 C. C. A. 329, 163 Fed. 519;
Chicago, etc., R. Co. v. United States,
116 C. C. A. 444, 196 Fed. 882; United
States v. Philadelphia, etc., R. Co. (D.
C.), 223 Fed. 215; United States v.
Philadelphia, etc, R. Co. (D. C.), 160
Fed. 696; United States v. Central, etc.,
R. Co. (D. C.), 157 Fed. 893; United
States v. Atchison, etc., R. Co. (D. C.),
167 Fed. 696; Norfolk, etc., R. Co. vu.
United States, 101 C. C. A. 249, 177
Fed. 623; United States v. Baltimore,
etc., R. Co. (D. C.), 170 Fed. 456.
“The statute in terms requires that
every car to which it applies shall be
equipped with ‘couplers’ of a prescribed
§ 231 THE SAFETY APPLIANCE ACT. 492

automatically by impact when it comes in contact with another car, and
which may be uncoupled also from the side without the necessity of a man
going between the ends of the two cars in order to perform that operation.
This requires that each car taken separately shall be complete—completely
equipped; that is to say, it requires that the couplers at both ends shall be
in good order. It is not sufficient, under this act of congress, that one
coupler should be in good order and the other should be defective.47

Locomotives.—But a locomotive which is so designed and constructed
as not to permit of any cars being coupled to it at its front end, need not
be equipped with a coupler there.48 In Wabash R. Co. v. United States, 97
C. C. A. 284, 172 Fed. 864, the court said:

“The supreme court has held in Johnson v. Southern Pac. Co., 196 U. S.
1, 49 L. Ed. 363, 25 S. Ct. 158, that a locomotive engine is a car within
the meaning of the statute; therefore, locomotive engines must be
equipped with ‘couplers,’ and inasmuch as ‘couplers’ means more than
one coupler, and if more than a coupler on the tender is used the other
must be used on the B. end of the engine, therefore, an engine un-
equipped with a coupler at its B. end, in accordance with the require-
ments of the act, is a violation of the act. The difficulty with this
reasoning is, first, in the assumption that under the doctrine of the
Johnson Case a locomotive and a car are synonymous terms in every
respect and for every purpose—a rigidity of construction that the
supreme court never intended; and the second difficulty is in“the as-
sumption that, because couplers, in the statute, is in the plural, there
can be no car without a coupler at each end, irrespective of the use to
which such car is put. As was said by the supreme court in the John-
son Case, the primary object of the act was to promote the public
welfare by securing the safety of employees and travelers. Its design
to give relief was more dominant than to inflict punishment—a view
of the statute that is wholly irreconcilable with a construction that
would require the designated couplers to be placed where they were
never used or intended to be used.”

On the other hand if it is so constructed that couplings may be made at

either end, both must be such, as to comply with the requirements of the

act,#9 and a violation is not excused though such defective end is not used ; 5°
R. Co. (D. C.),

operative type, and the reasonable at- States 7. Central, etc.,

tainment of its manifest object renders
it necessary that the coupler at each
end of the car shall conform, to this
requirement.” United States v. Den-
ver, etc., R. Co., 90 C. C. A. 329, 163
Fed. 519.

Where the evidence shows that one
end of a car was not provided with a
coupler, but that the other was so pro-
vided, and, if the employee was stand-
ing on a certain side of the car, he can
make the coupling and uncoupling with-
out going between the cars, but could
not make this coupling and ‘uncoupling
if on the opposite side, this is not a
compliance with the law. United

157 Fed. 893.

47. United States v. Philadelphia,
etc, R. Co. (D. C.), 160 Fed. 696.

48. Locomotives.—Wabash R. Co. v.
United States, 97 C. C. A. 284, 172
Fed. 864. See also, Chicago, etc.,
Co. v. United States, 116 C. C. A.
444, 196 Fed. 882; Campbell v. Spo-
kane, etc., R. Co. (C. C.), 188 Fed. 516.

49. Defective coupler not used.—
United States v. Philadelphia, etc., R.
Co. (D. C.), 223 Fed. 215; Chicago,
etc, R. Co. v. United States, 116 C.
C. A. 144, 196 Fed. 882.

50. United States 7. Philadelphia, etc.
R. Co. (D. C.), 223 Fed. 215.
493 EQUIPMENT AND SUFFICIENCY OF EQUIPMENT. § 231
or even though the defective coupler is entirely removed from the locomo-
tive preventing a coupling being made at that end.5! Thus where on an
engine so designed, the uncoupling apparatus on the front end (due to an
accident) became inoperative, but the coupling feature was fully operative,
it was held a violation of the act to continue the use of such engine after the
accident, notwithstanding the fact that the employees were notified of the
condition of the engine and instructed not to use that end, and couplings
were afterwards made only with the operative end, and the further fact
that even had it been used as only the uncoupling device was out of order,
uncoupling could have been accomplished by the use of the lever on the
car coupled, and the requirements of the law fulfilled as far as the coupling
by impact and uncoupling without the necessity of going between the cars
were concerned. But it is the use of the car which controls, and therefore
the intended use which determines the equipment. The facts suggest these
observations. The requirement of the law is not that some kind of coupling
device shall be provided so that cars may be coupled without risk to human
life or limb, but the requirement is that no car shall be used unless it has
the equipment called for by the act. The precautions taken by a carrier
might afford as complete, or indeed fuller, protection to its employees than
‘the means demanded by the law. It none the less follows that imposition
of the penalty must be visited upon the carrier guilty of a noncompliance
with the act of congress.5?

Use with Adjacent Car.—What the act forbids is the hauling of “any
car,” and requires that each coupler on a car be operative in itself, so that
an employee will not have to go to another car to couple or uncouple the
car in question. The provisions as to coupling and uncoupling apply to the
coupler on each end of every car subject to the law. It is wholly immaterial
in what condition was the coupler on the adjacent car or any other car or
cars to which such car was to be coupled. The equipment on each end of
cars must be in such condition that whenever called upon for use it can be
operated without the necessity of men going between the ends of the cars.58
In Chicago, etc., R. Co. v. United States, 127 C. C. A. 438, 211 Fed. 12, the
court said:

“Tt was also shown that the coupling apparatus on the car to which the

51. See Chicago, etc, R. Co. wv.

United States, 116 C. C. A. 444, 196
Fed. 882. ;
Contra—Wabash R. Co. 7. United
States, 97 C. C. A. 284, 172 Fed. 864.
52. United States 7. Philadelphia,
etc., R. Co. (D. C.), 223 Fed. 215, 216.
58. Use with adjacent car.—United
States v. Atchison, etc., R. Co. (D. C.),
167 Fed. 696, 697; United States v.
Central, etc., R. Co. (D. C.), 157 Fed.
893; Central Vermont’R. Co. v. United
States, 123 C. C. A. 308, 205 Fed. 40;
Wabash R. Co. v. United States, 93 C.

C. A. 393, 168 Fed. 1; United States
v. Southern R. Co. (D. C.), 170 Fed.
1014; United States v. Southern Pac.
Co. (D. C.), 167 Fed. 699; Chicago,

-etc., R. Co. v. United States, 127 C. C.

A. 438, 211 Fed. 12.

“Under the act each car is a unit and
must itself be completely equipped so
that trainmen may go about their
work without charging their memories
with differences between cars.” Wa-
bash R. Co. v. United States, 93 C. C.
A. 393, 168 Fed. 1.
§§ 231-233 THE SAFETY APPLIANCE ACT. 404

car in question was coupled was in perfect condition, and that the two
cars could have been uncoupled by the use of ‘the lever on the first-
mentioned car, and for this reason it is urged that the cars could be
uncoupled ‘without the necessity of men going between the ends of the
cars,’ and hence there was no violation of section 2. That section,
however, makes it a crime to use ‘any car’ upon which the coupling
apparatus is not operative, and we think that under this statute every
car is a unit, and must have its coupling apparatus in condition. Nor-
folk, etc., R. Co. v. United States, 101 C. C. A. 249, 177 Fed. 623.
The argument of plaintiff in error in support of this contention is
based mainly upon the decisions of this court in Morris v. Duluth, etc.,
R. Co., 47 C. C. A. 661, 108 Fed. 747; Gilbert v. Burlington, etc., R.
Co., 63 C. C. A. 27, 128 Fed. 529; Suttle v. Choctaw, etc., R. Co., 75
C. C. A. 470, 144 Fed. 668; and Union Pac. R. Co. v. Brady, 88 C.
C. A. 579, 161 Fed. 719. In those cases it was held that a switchman
was guilty of contributory negligence in going between cars to uncouple
them if the lever upon either car was operative. The opinions contain
no suggestion, however, that the company in suffering the coupling
appliance upon one car to be inoperative was not guilty of a violation
of the safety appliance act. On the contrary, all those decisions proceed
upon the ground that the company was guilty of such a violation of
the law, but held that the plaintiff was guilty of contributory negli-
gence which defeated his right of recovery because, notwithstanding the
company’s breach of duty, there was a safe way in which the employee
could have uncoupled the cars, and he was bound to choose that way
rather than the dangerous method of going between the cars.”

§ 232. Empty Cars.—The danger to brakemen which the federal stat-
ute was designed to obviate is the same, whether the car be loaded or empty.
The statute applies not only to cars that are loaded, but to all cars, whether
empty or loaded,®+ which are being “used” in interstate commerce.55

§ 233. Test of Sufficiency.—By § 2 of the original act it is provided
that couplers shall couple “automatically by impact, and which can be un-
coupled without the necessity of men going between the ends of the cars.”
This does not prohibit men from going between the cars and the fact that
they do, does not ipso facto show the act was not complied with, because
their action may have been unnecessary; but to determine if the appliances
are sufficient the test is, were the cars so equipped that they could be coupled
or uncoupled without the necessity of men going between them,>* whether

54, Empty cars.—Wabash R. Co. v.
United States, 93 C. C. A. 393, 168 Fed.
1; United States v. St. Louis, etc., R.
Co. (D.-C.), 154 Fed. 516; Malott v.
Hood, 201 Ill. 202, 66 N. E. 247; Luken
uv. Lake Shore, etc., R. Co., 248 Ill. 377,
94 N. E. 175, 21 Am. & Eng. Ann.
Cas. 82.

“It was an empty car, but the law
applies as well to empty cars as to
loaded cars,” Luken v. Lake Shore,
etc., R. Co., 248 Ill. 377, 94 N. E. 175,
21 Am. & Eng. Ann. Cas. 82.

55. As to whether an empty car is
one used in interstate commerce, see
ante, ‘Vehicles Used in Interstate
Commerce,” § 222.

56. Test of sufficiency.—United States.
—Chicago, etc., R. Co. v. United States,
220 U. S. 559, 55 L. Ed. 582, 13 S. Ct.
612; San Antonio, etc., R. Co. v. Wag-
ner (U. S.), 36 S. Ct. 626; Hohenleitner
v. Southern Pac. Co. (C. C.), 177 Fed.
796; Johnson v. Great Northern R.
Co., 102 C. C. A. 89, 178 Fed. 643;
United States v. Southern Pac. Co. (D.
495

EQUIPMENT AND SUFFICIENCY OF EQUIPMENT.

§ 233

they were standing or moving.57 Thus though cars are equipped with auto-

C.), 167 Fed. 699; United States v.
Southern R. Co. (D. C.), 135 Fed. 122;
United States v. Montpelier, etc. Rail-
road (D. C.), 175 Fed. 874; Voelker v.
Chicago, etc., R. Co. (C. C.), 116 Fed.
867; Chicago, etc. R. Co. v. Voelker,
65 C. C. A. 226, 129 Fed. 522, 70
L. R. A. 264; United States vw.
Nevada County, etc, R. Co. (D. C.),
167 Fed. 695; Wheeling Terminal R.
Co. v. Russell, 126 C. C. A. 519, 209
Fed. 795; United States v. Atchison,
etc., R. Co. (D. C.), 167 Fed. 696, 697;
Delk v. St. Louis, etc., R. Co., 220 U.
S. 580, 55 L. Ed. 590, 31 S. Ct. 617, re-
versing 86 C. C. A. 95, 158 Fed. 931;
Johnson v. Southern Pac. Co., 196 U.
S. 1, 49 L. Ed. 363, 25 S. Ct. 158, re-
versing 117 Fed. 462, 54 C. C. A. 508;
United States v. Central, etc., R. Co.
(D. C.), 157 Fed. 893; United States
v. Philadelphia, etc. R. Co. (D. C.),
223 Fed. 215; United States v. Lehigh
Valley R. Co. (D. C.), 162 Fed. 410,
412; Minneapolis, etc., R. Co. wv. Pop-
plar, 237 U. S. 369, 59 L. Ed. 1000, 35
S. Ct. 609. See also, United States v.
Baltimore, etc, R. Co. (D. C.), 176
‘Fed. 114, affirmed (not on merits) in
185 Fed. 486.

Delaware-—Winkler v. Philadelphia,
etc, R. Co., 4 Pennewill (Del.) 80, 53
Atl. 90, affirmed in 4 Pennewill (Del.)
387, 56 Atl. 112.

Illinois—lLuken v. Lake Shore, etc.,
R. Co., 154 Ill. App. 550.

Minnesota—Popplar v. Minneapolis,
etc, R. Co., 121 Minn. 413, 141 N. W.
798, Ann, Cas. 1914D, 383, affirmed in
35 S. Ct. 609; Willett v. Illinois Cent.
R. Co., 122 Minn. 513, 142 N. W. 883;
Hurley v. Illinois Cent. R. Co.
(Minn.), 157 N. W. 1005.

Texas.—Southern Pac. Co. v. Allen,
48 Tex. Civ. App. 66, 106 S. W. 441;
San Antonio, etc, R. Co. v. Wagner
(Tex. Civ. App.), 166 S. W. 24, writ of
error denied in 170 S. W. xviii, no op.,
affirmed in 36 S. Ct. 626.

Virginia-—Southern R. Co. v.
mons, 105 Va. 651, 55 S. E. 459.

“The circuit court of appeals well
said, in the present case, that while
the general purpose of the statute was
to promote the safety of employees
and travelers, its immediate purpose
was to provide a particular mode to
effect that result; namely, the equip-
ping of each car used in moving in-
terstate traffic with couplers, coupling
automatically by impact, and which
can be uncoupled without the necessity
of men going between the ends of the
cars.” Delk v. St. Louis, etc., R. Co.,
220 U. S. 580, 55 L. Ed. 590, 31 S. Ct.

Sim-

617, affirming 158 Fed. 931, 86 C. C.
A. 95.

“The true intent and meaning of the
statute is not merely that the cars, etc.,
used in moving interstate traffic shall
be equipped with automatic couplers of
the description therein mentioned, but
also that such couplers shall be in such
condition as to be used automatically
while such cars are so engaged.”
Philadelphia, etc., R. Co. v. Winkler, 4
Pennewill (Del.) 387, 56 Atl. 112.

“What the act plainly forbade was the
use of cars which could not be coupled
automatically by impact, and uncoupled
without the necessity of men going
between the cars. Unless a car was
so equipped, it was not to be put in
service. It was not to be used. The
act plainly prohibited its use, and fixed
a penalty therefor.” United States v.
Southern R. Co. (D. C.), 135 Fed. 122,
127.

Where the couplings would not work
together, so that the employee was
obliged to go between the cars, the
law was not complied with. John-
son v. Southern Pac. Co., 196 U. S. 1,
49 L. Ed. 363, 25 S. Ct. 158, reversing
117 Fed. 462, 54 C. C. A. 508.

“Upon an examination made imme-
diately after the deceased was killed it
was found that the knuckles would not
open with the use of the pin-lifter lever
and that to open them one must go
between the cars and use his hands.
The proof that the couplers were de-
fective was sufficient. A coupler which
will not couple by impact, unless the
knuckles have been opened by hand, is
not such as is contemplated by the act.
Burho v. Minneapolis, etc., R. Co., 121
Minn. 326, 141 N. W. 300.” Hurley v.
Illinois Cent. R. Co. (Minn.), 157 N.
W. 1005, 1007.

Contra.—In Parker v. Atlantic, etc.,
R. Co., 87 N. J. L. 148, 93 Atl. 574, it
is held that the couplers actually did
not work automatically by impact in
the case at bar raised at least a pre-
sumption that the defendant company
had not provided the couplers required
by the safety appliances act, and that
presented a question for ‘the jury. See
also, United States v. Illinois Cent. R.
Co., 95 C. C. A. 628, 170 Fed. 542,
where it is held that this requirement
is descriptive of the equipment re-
quired and imports nothing in regard
to the duty of the carrier when from
accident, or some other cause without
his fault, the equipment becomes de-
ranged.

57. Same test for moving or standing
cars.—Minneapolis, etc., R. Co. v. Pop-
§ 233 THE SAFETY APPLIANCE ACT. , 496

matic couplers, if another device or appliance is used in connection with
the couplers which would render them inoperative to the extent of requir-
ing men to go between the cars, then such coupling did not comply with the
act and is unlawful.58

The going between the cars extends to the act of coupling as well as un-
coupling.6® The contention that the preparation of the coupler for the
impact is distinct from the act of coupling is a mistaken attempt to separate
a part of an act from the whole. The preparation of the coupler and the
impact are not isolated acts, but connected and indispensable parts of the
larger act, which is regulated by these statutes, and the performance of
which is intended to be relieved of unnecessary risk and danger.6° In
justification of an employeee’s going between cars, where the couplers re-
fused to make at the first trial and an employee was adjusting it for a second
attempt when he was injured, it was insisted that neither the original act
nor the amendment precludes adjustment of the coupler prior to or at the
time of impact, because cars must be provided with adjustable knuckles
which can be opened and closed and that there is no kind of automatic
coupler constructed or that can be constructed which will open at all times
without previous adjustment; and that neither does this act nor the amend-
ments treat a drawbar out of alignment as a defect in the automatic coupler,
because drawbars must have lateral play to permit the cars to round curves.

plar, 237 U. S. 369, 95 L. Ed. 1000, 35 -not come under the condemnation of
S. Ct. 609; San Antonio, etc., R. Co. v. state or federal law. The decision in

Wagner (Tex. Civ. App.), 166 S. W.
24, 26, writ of error denied in 170 S.
W. xviii, no op.

58. Other appliances presenting cou-
pler working.—Philadelphia, etc, R.
Co. v. Winkler, 4 Pennewill (Del.) 387,
56 Atl. 112. See post, “Defective or
Inoperative Couplers,” § 235.

59. Statutes embraces both coupling
and uncoupling.—Johnson v. Southern
Pac. Co., 196 U. S. 1, 49 L. Ed. 363,
25 S. Ct. 158; United States v. Central,
ete., R. Co. (D. C.), 157 Fed. 893; Chi-
cago, etc., R. Co. v. Voelker, 65 C. C.
A. 226, 129 Fed. 522, 70 L. R. A. 264;
United States v. Nevada County, etc.,
R. Co. (D. C.), 167 Fed. 695; Grand
Trunk, etc., R. Co. v. Poole, 175 Ind.
56%, 93 N. E. 26.

60. Preparation and coupling is same
act.—Chicago, etc., R. Co. v. Voelker,
65 C. C. A. 226, 129 Fed. 522, 70 L.
R. A. 264. See also, Burho v. Minne-
apolis, etc., R. Co., 121 Minn. 326, 141
N. W. 300.

“The case of Morris 7. St. Louis,
etc., R. Co. (Tex. Civ. App.), 158 S. W.
1055, is cited by appellant as deciding
that a defective coupler that required
adjustment before it would couple did

that case can be justified only by the
fact stated that it was not shown that
the coupler could not have been ad-
justed without going between the en-
gine and the car. If the opinion can
be construed into holding that a rail-
road company is under no obligation
to keep its coupler in such condition
as to couple by impact, without the
necessity of any one going between the
ends of the cars, it is in direct conflict
with state and federal decisions which
construe the act of congress. * *
We do not think that the court
civil appeals of the sixth district in-
tended to hold anything except that
the proof in that case failed to show
that the coupler to the engine could
not have been adjusted without going
between the engine and car. In this
case, however, the proof is positive
that it was absolutely necessary for
appellee to go between the engine and
car to adjust the coupler. Appellant in
its pleadings practically admitted that
the coupler could not be adjusted with-
out going between the engine and car.’
San Antonio, ete, R. Co. v. Wagner
(Tex. Civ. App. ), 166 S. W. 24, 27, writ
of error denied in 170 S. W. xviii, no
op., affirmed in 36 S. Ct. 626.
497 EQUIPMENT AND SUFFICIENCY OF EQUIPMENT. § 233

To this in San Antonio, etc., R. Co. v. Wagner (U. S.), 36 S. Ct. 626, 629,
the court said:

“The evidence of bad repair in the automatic equipment was not confined
to the fact that the drawbar on the engine was out of line; the fact
that the coupling pin on the box car failed to drop as it should have
done at the first impact, and required manipulation in preparation for
the second impact, together with the fact that the drawbar on the
engine was so far out of line as to require adjustment in preparation
for the second impact, and the opinion evidence, being sufficient to
sustain a finding that the equipment was defective. The jury could
reasonably find that the misalignment of the drawbar was greater than
required to permit the rounding of curves, or, if not, that an adjusting
lever should have been provided upon the engine as upon the car, and
that there was none upon the engine.”

The risks and dangers which attended the old link and pin system when
couplings and uncouplings were effected by going between the cars were
such a menace to the lives and limbs of those employed in that branch of
the railroad service, and these risks and dangers inhered so largely in the
act of going between the cars, whether in the act of coupling or uncoupling,
that there can be no doubt of the purpose of the congressional enactment
to obviate and prevent this act of exposure, which the invention and use of
automatic couplers had demonstrated to tbe wholly, or at least largely, un-
necessary. Uncertainty in the congressional act, is obviated by merely
inserting a comma after, the word “uncoupled” in that portion of the act
which calls for “couplers coupling automatically by impact, and which can
be uncoupled without the necessity of men going between the ends of the
cars.” The concluding phrase then literally applies to both the coupling
and uncoupling. Punctuation is a minor, and not a controlling, element in
interpretation, and courts will disregard the punctuation of a statute, or
re-punctuate it, if need be, to give effect to what otherwise appears to be its
purpose and true meaning.®1

A necessity under the statute is presented, though there may be a way of
coupling or uncoupling the cars with the appliance with which they are
equipped without going between them, if such way is unreasonable or one
which the dispatch of railroad business would not generally permit.62 The
question of the necessity of a brakeman going between the cars arose in a

61. Intention of congress to embrace
both acts.-—Chicago, etc, R. Co. wv.
Voelker, 65 C. C. A. 226, 129 Fed. 522,
70 L. R. A. 264.

“We dismiss as without merit the
suggestion, which has been made, that
the words ‘without the necessity of
men going between the ends of the
cars,’ which are the test of compliance
with section two, apply only to the act
of uncoupling. The phrase literally
covers both coupling and uncoupling,
and if read, as it should be, with a

Fed Act—32

comma after the word ‘uncoupled,’ this
becomes entirely clear.” Johnson v.
Southern Pac. Co., 196 U. S. 1, 49 L.
Ed. 363, 25 S. Ct. 158, reversing 117
Fed. 462, 54 C. C. A. 508.

62. When necessity exists.—Norfolk,
etc., R. Co. v. United States, 101 C. C.
A. 249, 177 Fed. 623; United States z.
Louisville, etc, R. Co. (D. C.), 162
Fed. 185, affirmed in 174 Fed. 1021, 98
C. C. A. 664; United States v. Chicago,
etc, R. Co. (D. C.), 149 Fed. 486.
§§ 233-234 THE SAFETY APPLIANCE ACT. 498

case where the coupler of one car was out of order and if they were to be
operated it would be required that the brakeman go to the one on the op-
posite side of the train and the court held that the fact that he might by
climbing over a car, or crawling under, or going around the train, effect
the coupling without going between the cars, did not prevent the existence
of a necessity and that when a coupler was in such condition it was in dis-
repair making its use unlawful.®%

§ 234. Standard and Design of Coupler.—The law does not require
the carriers to adopt any specific design of coupler.64 That matter is left
to them. They may adopt any design, kind, or make which they please,
provided the cars equipped therewith shall couple automatically by impact,
and can be coupled and uncoupled without the necessity of persons going
between them. The cars must not only be provided with couplers, but the
couplers must be such that, when used, they will couple together automat-
ically. If the cars hauled or used by a carrier engaged in such commerce
will not so couple, the law is violated, whether it is due to the character of
the car, the kind of equipment used, or, the manner in which tracks re-
quired to be used in coupling or uncoupling cars or making up trains are
located or built.66 To make a coupler complete an uncoupling lever is not

68. Norfolk, etc., R. Co. v. United
States, 101 C. C. A. 249, 177 Fed. 623.

Instructions—When a _ word like
“necessity” is used in a statute, it is
very difficult and generally inexpedient
by a general instruction to a jury to
attempt to define by specific illustra-
tions its scope which will depend
largely upon circumstances, but the
giving of the following instruction, un-
der the circumstances and_ evidence
was not substantial error. “The court
also instructs you that the word ‘ne-
cessity’ as used in the second section
of the statute does not mean absolute
necessity, and also does not imply a
physical impossibility of uncoupling
except by going between the ends of
the cars. The possibility of uncou-
pling by crawling under a car, or climb-
ing over a car, or by going around the
end of a train, does not prevent the
existence of a ‘necessity’ within the
meaning of the statute of men going
between the ends of the cars in order
to uncouple. If the uncoupling lever
at either end of any car is so inopera-
tive that it is necessary in order to un-
couple to go between the cars, or to
go around the train, or to climb over
a car, or crawl under a car, or to climb
over or craw! under the couplers, then
such car is in such condition of dis-
repair that it is unlawful to use it in
the movement of interstate traffic.”

Norfolk, etc., R. Co. v. United States,
101 C. C. A. 249, 177 Fed. 623.

64. Standard and design of coupler.
—United States—Johnson v. Southern
Pac. Co., 196 U. S. 1, 49 L. Ed. 363, 25
S. Ct. 158; Hohenleitner v. Southern
Pac. Co. (C. C.), 177 Fed. 796; Norfolk,
etc., R. Co. v. United States, 101 C.
C. A. 249, 177 Fed. 623.

Illinois —Devine v. Chicago, etc, R,.
Co., 259 Ill. 449, 102 N. E. 803.

Virginia.—Southern R. Co. 7.
mons, 105 Va. 651, 55 S. E. 459.

“No particular design was required.”
Johnson v. Southern Pac. Co., 196 U.
S. 1, 49 L. Ed. 363, 25 S. Ct. 158.

“Any standard coupler which will
couple automatically by impact, and
which can be uncoupled without re-
quiring men to go between the ends of
cars, would satisfy the statute.” De-
vine uv. Chicago, etc. R. Co., 259 Ill.
449, 102 N. E. 803.

65. Hohenleitner v. Southern Pac.
Co. (C. C.), 177 Fed. 796; Shohoney v.
Quincy, etc., R. Co., 223 Mo. 649, 122
S. W. 1025.

“The act of congress requires rail-
roads engaged in interstate commerce
to use automatic couplers that will
couple by impact, without requiring
switchmen to go between the cars.
Whilst the Leeds coupler, as it was be-
ing used in the case now before us,
was an automatic coupler, and did not

Sim-
499

necessary.®6

Fed. 874, 875, the court said:

EQUIPMENT AND SUFFICIENCY OF EQUIPMENT.

In United States v. Montpelier, etc.,

§ 234
Railroad (D. C€.), 175

“The agreed statement of facts is that,the locomotive engine used by the

defendant had no uncoupling levers on it.

No other shortage of statu-

tory duty is claimed. The statute makes no provision as to ‘uncou-

pling levers.’

There is no evidence before the court that ‘uncoupling

levers’ are necessary. The statute simply provides that cars must be
equipped for coupling automatically by impact, and for uncoupling

without the necessity of men going between the ends of the cars.

There

is no evidence here that this engine could not couple to cars automatic-
ally by impact, and the evidence is that it could uncouple from the car
used ‘without the necessity of any man going between the car and the

engine.’

The object of this statute is to protect life and limb. ‘The

facts stated do not bring the case within either the letter or the spirit

of the law.”

Couplers must be capable of being operated at any point at which a coupling
would be made, and the fact that the track had a 20° curve would not ex-

cuse a failure to operate.§7

It is requisite that a coupler of whatever make should be capable of being
operated with those of other makes, if they are used, and not only operative

with others of the same make.68

In Johnson v. Southern Pac. Co., 196 U.

S. 1, 49 L. Ed. 363, 25 S. Ct. 158, the court said:

require the switchman to go between
the cars, yet, because it would not
couple automatically with one of its
kind, it did not measure up to the
standard prescribed by the act of con-
gress.” Shohoney v. Quincy, etc., R.
Co., 223 Mo. 649, 122 S. W. 1025.

66. Necessity of uncoupling lever.
—United States v. Montpelier, etc.,
Railroad (D. C.), 175 Fed. 874.

67. Failure to operate on curved
track.—Hohenleitner v. Southern Pac.
Co. (C. C.), 177 Fed. 796; Parker v.
Atlantic, etc., R. Co. 87 N. J. L. 148,
93 Atl. 574.

Couplings had been made daily for
more than a year on a certain curve
without any failure to couple auto-
matically on impact. At the time of
the accident, the drawbars of the cars
to be coupled had several inches of
play or lateral motion, and were so far
out of line that the cars would not
couple automatically on impact on this
curve. Held, that the court can not say
as a matter of law that the couplers
were not defective within the meaning
of the safety appliance act, nor that
the coupling was attempted at an im-
proper place, and that these questions
were properly submitted to the jury.
Willett v. Illinois Cent. R. Co., 122
Minn, 513, 142 N. W. 883.

It is not an answer to say that the

couplers would have worked if the car

‘has been upon a straight track, for

the Supreme Court of the United
States in Chicago, etc, R. Co, wv.
Brown, 229 U. S. 317, observed at
page 320, 57 L. Ed. 1204, 33 S.
Ct. 840, that it was conceded that
in St. Louis, etc, R. Co. wv. Tay-
lor, 210 U. S. 281, 52 L. Ed. 1061,
28 S. Ct. 616, and in Chicago,
etc., R. Co. uv. United States, 220 U.

S. 559, 55 L. Ed. 582, 31 S. Ct. 612,
that that court settled that the fail-
ure of a coupler to work at any time
sustained a charge of negligence in
that respect, etc. Parker v. Atlantic,
etc., R. Co, 87 N. J. L. 148, 93 Atl. 574.
68. Coupling with other makes.—
Johnson v. Southern Pac. Co., 196 U.
S. 1, 49 L. Ed. 363, 25 S. Ct. 158: United
States v. Illinois Cent. R. Co., 101 C.
C. A. 15, 177 Fed. 801; Southern R. Co.
v. Simmons, 105 Va. 651, 55 S. E. 459.
“Whatever the devices used they
were to be effectively interchangeable.”
Johnson v. Southern Pac. Co., 196 U.
S. 1, 49 L. Ed. 363, 25 S. Ct. 158, re-
versing 117 Fed. 462, 54 C. C. A. 508.
The act of congress regulating the
couplings to be used on cars moving
interstate traffic requires the use of
couplers coupling automatically by
impact, and which can be uncoupled
without the necessity of men going be-
§§ 234-235 THE SAFETY APPLIANCE ACT. 500

“Tt appears, however, that this locomotive was in fact equipped with
automatic couplers, as well as the dining car; but that the couplers
on each, which were of different types, would not couple with each
other automatically, by impact, so as to render it unnecessary for men
to go between the cars to couple and uncouple. Nevertheless, the cir-
cuit court of appeals was of opinion that it would be an unwarrantable
extension of the terms of the law to hold that where the couplers
would couple automatically with couplers of their own kind, the coup-
lers must so couple with couplers of different kinds. But we think
that what the act plainly forbade was the use of cars which could not
be coupled together automatically by impact, by means of the couplers
actually used on the cars to be coupled. The object was to protect
the lives and limbs of railroad employees by rendering it unnecessary
for a man operating the couplers to go between the ends of the cars;
and that object would be defeated, not necessarily by the use of auto-
matic couplers of different kinds, but if those different kinds would
not automatically couple with each other. The point was that the rail-
road companies should be compelled; respectively, to adopt devices,
whatever they were, which would act so far uniformly as to eliminate
the danger consequent on men going between the cars.”

§ 235. Defective or Inoperative Couplers.—There is no doubt that
the requirements of the safety appliance act extend to cars originally
equipped with the prescribed coupling apparatus, but which through the
default of the railroad company have been used when inoperative by rea-
son of being worn out or out of repair.6® The same duty is imposed upon a
railroad to maintain its couplers in proper working condition as is imposed
for their installation,?7° and for a broken chain which renders it inoperative
the railroad is liable, for the penalty,7! or guilty of negligence,’ the same
as though the cars had never been equipped. Thus the fact that a chain
had never been connected up between the lever and the lock pin of a
coupler so that it was inoperative, shows either of two things, one that the
coupler was incomplete, and the other that it was defective, either of which
was a violation of the statute.78

tween the ends of the cars. The act v. Great Northern R. Co. (D. C.), 150

sought to obviate risk by requiring the
use of couplers that would actually couple
automatically by impact, and while no
particular design was required it Was
intended that the couplings used by
different railroads were to be effec-
tively interchangeable. It was not in-
tended merely to require couplings that
would couple automatically after they
had been fixed and made ready to be
coupled. Southern R.,Co. v. Simmons,
105 Va. 651, 55 S. E. 459.

69. Defective or inoperative couplers.
—United States v. Illinois Cent. R. Co.,
101 C. C. A. 15, 177 Fed. 801.

70. See ante, “Nature of Duty Im-
posed,” § 217.

71. United States 7. Southern R. Co.
(D. C.), 170 Fed. 1014; United States

Fed. 229.

72. Donegan v. Baltimore, etc., R. Co.,
91 C. C. A. 555, 165 Fed. 869; Philadel-
phia, etc., R. Co. v. Winkler, 4 Penne-
will (Del.) 387, 56 Atl. 112.

73. United States v7. Great Northern
R. Co. (D. C.), 150 Fed. 229.

“The undisputed evidence is that the
equipment itself was in perfect condi-
tion. It only needed to be connected
to make it available for the purpose for
which it was intended. In such a case,
until the chain is connected, a car is
not equipped with couplers ‘which can
be uncoupled without the necessity of
men going between the ends of the
cars. In the absence of any testimony
showing that it ever was attached, it
must be presumed, since the working
501 EQUIPMENT AND SUFFICIENCY OF EQUIPMENT. § 235

The act does not determine how many levers shall be furnished to oper-
ate a coupling device, nor where such levers shall be placed. If one be
sufficient in connection with the device to perform the work of operation,
but one is required. On the other hand, there is no restriction upon the
placing of two such levers, one on each side, on the end of any or all its
cars, if the companies desire or deem it conducive of more effective opera-
tion of the coupling automatically by impact without the necessity of men
going between the ends of the cars. But, while this is true, these levers,
whether one or more, become parts of the coupling device itself, and a fair
construction of the statute requires that the device itself must be in such
repair as to be capable of operation, and if the levers furnished to operate
it, whether one or two at the end of the car, should, as such parts of it,
be kept in condition to operate it; that, if there be two, one on each side
of the end of a car, and one be maintained in a condition capable of opera-
tion and the other not, the latter is calculated only to deceive the employee
and under some conditions perhaps create a necessity, in other conditions
at least a temptation, to be negligent and step between the cars to uncouple
them by hand. The defective lever has no business there and should be
either made operative or taken away, as it renders, in the true sense of the
statute, the coupling device, of which it is a part, defective.4

The mere fact that the carrier provides couplers proper in their material
and construction, which are of standard make and are modeled and con-
structed so as to be certainly capable of coupling by impact, will not alone
be an entire performance of the duty which the congress has imposed upon
the carrier. Necessarily the couplers must be so attached to the cars, and
kept attached, that they will perform the function required by the statute,
viz. couple by impact. And if the defendant has so attached them to the
car or they become so worn in use that they will not meet, they fail to
accomplish the purpose of the statute as fully as if they would not couple
by impact, if they did meet.*5 That is the couplers may not be defective

parts were in perfect order, that the

I be presumed that this is the fact.”
apparatus was only partially com-

United States 7. Great Northern R.

pleted, and that it was the ultimate in-
tention to connect the parts and to
thereby comply with the provisions of
the statute. There are two phases of
the case, therefore, which are conclu-
sive against the defendant: First, in-
dulging the theory that apparatus, the
working parts of which were in per-
fect order, and which only needed to
be connected to make the appliance
available, was out of repair because
not connected, the defendant fails, be-
cause it was its duty in this regard to
keep the,car in repair; second, if the
chain never had been connected, then
the defendant never did equip the car
in the manner provided by law, and
in the absence of explanation it must

Co. (D. C.), 150 Fed. 229.

74, One of two levers defective —
Norfolk, etc. R. Co. «7. United States,
101 C. C. A. 249, 177 Fed. 623.

75. Inoperative couplers—Noel v.
Quincy, etc., R. Co. (Mo. App.), 182
S. W. 787, 788.

In Noel v. Quincy, etc., R. Co. (Mo.
App.), 182 S. W. 787, 788, the couplers
failed to perform by inpact of the cars,
and there was evidence tending to show
that such failure was not due to a fault
in their construction, but from the fact
that the hole in the wood of the cross-
beam of the car, through which the
metal “neck” extended, had become
worn and enlarged, so that it left too
much room or “play,” and permitted
§ 235 502

THE SAFETY APPLIANCE ACT.

and yet be inoperative. So if a coupler fails to work when an honest and rea-
sonable effort is made to operate it, under circumstances and in the manner
it is designed to be operated, but can be made to work only after extraordi-
nary efforts, or sporadically, or by opening the knuckle thereof with the
hand, the law is not complied with.7¢ Thus where a brakeman in attempt-
ing to lift the pin to open a coupler, “jerked on it and pulled up at it”
three or four times, but it would not uncouple. Another brakeman testified
that he soon thereafter tried to lift the pin, but could not. Defendant’s
witnesses admitted that it worked stiff. This was sufficient evidence to
sustain a finding of the jury that the coupler was not such as was required
by law.77 However, an employee must make a reasonable effort to work
the coupler before concluding that it is inoperative and evidence showing that
a coupler would not respond to two or three jerks, whereupon an
employee went between the cars and he was injured, but upon an examina-
tion soon after the accident the coupler was found in perfect operative
condition but that it was new and possibly worked hard, was not sufficient
to show the company guilty of negligence in respect to the equipment.7§
The question of whether or not a coupler is defective may be one for the
jury.*® Thus an employee’s ‘allegation and proof of a defective coupler
requiring him to go between cars, was not conclusively disproved requiring
a directed verdict, where three of defendant’s witnesses who an hour after
the accident inspected the couplings and found that they did work, but one
of them testified that they worked ‘a little stiff,” especially in view of the
fact that the cars were not coupled at the time and their identity and ab-
sence of repair in the interval between the accident and inspection de-
pended on the testimony of one witness who was uncontradicted,8° and
where there was testimony that the decedent, on giving a stop signal, at-
tempted to uncouple a “head car” that was to be left to run of its own
momentum on a siding; and he tried repeatedly to do this by pulling the
coupling pin with the lifter at the end of the next car, but without success,
and then, stepping between the two cars, while they were moving at the
rate of about 4 miles an hour, in order to effect the uncoupling by hand,
he was run over and killed. The conductor, a witness for the company,
who examined the coupling apparatus soon after the accident, testified that

Ann. Cas. 1914D, 383, affirmed 35 S.

the couplers to pass by, instead of per-
mitting the knuckles of the coupler to
pass over each other and clasp, thus
perfecting the coupling. A case was
considered made against the defend-
ant.

76. Couplers hard to work.—Burho
v. Minneapolis, etc., R. Co., 121 Minn.
326, 141 N. W. 300; Popplar v. Minne-
apolis, etc., R. Co. 121 Minn. 413, 141
N. W. 798, Ann. Cas. 1914D, 383, at-
firmed 35 S. Ct. 609.

77. Popplar v. Minneapolis, etc., R.
Co., 121 Minn. 413, 141 N. W. 798,

Ct. 609.

78. Reasonable effort of employee to
work new coupler.—Union Pac. R. Co.
v. Brady, 88 C. C. A. 579, 161 Fed. 719.

79. Same—Question for jury.—
Nashville, etc. Railway v. Henry, 158
Ky. 88, 164 S. W. 310; Steele v. Atlan-
tic, etc., R. Co. (S. C.), 87 S. E. 639.

80. Nichols v. Chesapeake, etc., R.
Co., 115 C. C. A. 601, 195 Fed. 913.
— post, “Failure to Use Appliances,”

261,
503 EQUIPMENT AND SUFFICIENCY OF EQUIPMENT, §§ 235-236

it worked with difficulty and that he would have reported it as a “bad
coupler’ had it been brought to his attention, is sufficient to go to the jury
upon the question whether, in fact, the coupler was defective.®!

Even if a engine tender was equipped with automatic couplers, but was
so connected with a “bull-nose” coupler that the coupling with other cars
could not be made automatically by impact, but make it necessary
for men to go between the ends of the cars to couple and uncouple them,
the apparatus did not comply with the act of congress.82_ Or if the load on
a car is so placed that it projects over the ends of the car to such an extent
as to prevent the movement of the uncoupling lever, and render the device
inoperative, it is a violation of the statute.8? In United States v. Illinois
Cent. 'R. Co., 101 C. C. A. 15, 177 Fed. 801, the court said:

“We can see no substantial difference in principle, so far as concerns
the question here involved, between the case of a coupler temporarily
inoperative by reason of being out of repair and one rendered equally
inoperative ‘because of the loading of the car in such way that the act
of uncoupling could not be accomplished without the necessity of a
man going between the cars. The latter case, which is presented here,
is equally within the mischief which the statute is designed to prevent.
It is unnecessary to consider the case, suggested by defendant’s counsel,
of two cars loaded with materials of such length as to rest upon both
cars and to extend wholly across the space between; no coupling or
uncoupling being intended during transit. The record presents no such
case.”

§§ 236-239. Grab Irons, Handholds, Hand Brakes, Ladders,
Running Boards, etc.8:—§ 236. Requirements of Statute and In-
terstate Commerce Commission.—By § 4 of the original act it is pro-
vided that “it shall be unlawful * * * to use any car * * * 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.” And
by the amendment of 1910 it was further required that: “AI! cars must
be equipped with secure sill steps and efficient hand brakes; all cars re-
quiring 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 pur-

81. Minneapolis, etc, R. Co. v. Pop- 83. Load preventing movement of
plar, 237 U. S. 369, 59 L. Ed. 1000, 35 lever—United States v. Illinois Cent.
S. Ct. 609. R. Co., 101 C. C. A. 15, 177 Fed. 801.

82. Other appliance preventing coup-
ler working.—Philadelphia, etc., R. Co.
v. Winkler, 4 Pennewill (Del.), 387,
56 Atl. 112. See also, United States v.
Illinois Cent. R. Co., 101 C. C. A. 15,
177 Fed. 801.

84. Grab irons, handholds, etc.—As
to number of offenses from violation,
see post, “Verdict and Judgment,” §
286. As to sufficiency of pleading to
show device covered by act, see post,
“Pleading,” Chap. XL. °
504

§§ 236-238 THE SAFETY APPLIANCE ACT.

pose.” The interstate commerce commission was given power within six
months after the passage of this latter act to provide for the number, di-
mensions, location and manner of application of the appliances required by
these two sections, which was done. An order of the commission of March
13, 1911, superseding prior orders on the subject.8®

§ 237. Vehicles to Which Applicable.—By reference to the order
of the interstate commerce commission, it will be seen that the requirements
extend to box and other house cars, hopper cars and gondolas, flat cars,
tank cars, cabooses, passenger cars and locomotives. But even before this
order was in force the act was declared not to be confined to freight cars
but was applicable to passenger cars,8° and to locomotive tenders.87

§ 238. Object, Number and Location.—The object in requiring the
handholds and grab irons was to afford greater security to employees en-
gaged in coupling and uncoupling cars and-one connecting or disconnecting
the air hose between the cars is engaged in coupling or uncoupling cars
within the meaning of the act, if it is necessary for him to connect or
disconnect that hose in order to connect or disconnect the cars.88 The
contention that an employee who was injured in using a handhold at the
top of a ladder does not come within the act because he was not at the
time coupling or uncoupling cars cannot ibe sustained, as under § 2 of the
amendment of 1910 security of this class of equipment is required regard-
less of the special duties of the employee at the time of his injury. There
can be no question that a box car having a hand brake operated from its
roof requires also a secure ladder to enable an employee to ascend and
descend.8?

While this section is in itself indefinite as to the number and location of
handholds, but it is not indefinite in so far as it requires that handholds
be provided both on the ends and sides of cars.®° But this uncertainty has

85. Requirements of statute and in-
terstate commerce commission.—For
text of order, see Appendix B.

€6. Passenger cars.—Norfolk, etc.,
R. Co. v. United States, 101 C. C. A.
249, 177 Fed. 623; United Stdtes v.
Norfolk, etc, R. Co. (D. C.), 184
Fed. 99.

“The contention that § 4 of the
safety appliance act was never in-
tended to apply to passenger cars de-
serves some consideration. The origi-
nal act of 1893 (27 Stat. 531) in terms
applied to ‘any car.’ In passing the
amendment of 1896 (Act April 1, 1896,
c. 87, 29 Stat. 85) congress did not see
fit to make any exception as to passen-
ger cars, and the amendment of 1903
(Act March 2, 1903, c. 976, 32 Stat. 943
[U. S. Comp. St. Supp. 1909, p. 1143])
not only does not in the slightest indi-
cate any. intention to except passenger

cars from the operation of § 4, but it
emphasizes the point that the require-
ments as to couplers, grabirons, etc.,
apply to ‘all cars’ used in interstate
commerce.” United States v. Norfolk,
etc, R. Co. (D.'C.), 184 Fed. 99, 101.

87. Locomotive tenders. — United
States v. Baltimore, etc, R. Co. (D.
C.), 184 Fed. 94. See also, ante, “Ve-
ee Embraced under Term ‘Cars,’”

229. »

88. Object of requirement—Extends
to employees connecting air hose.—
United States v. Boston, etc., R. Co.
(D. C.), 168 Fed. 148.

89. As extending to employees not
coupling or uncoupling cars—Texas,
etc, R. Co. v. Rigsby (U. S.), 36 S.
Ct. 482.

90. Number and_location—United
States v. Baltimore, etc, R. Co. (D.
C.), 184 Fed. 94, 95; United States v.
505 EQUIPMENT AND SUFFICIENCY OF EQUIPMENT. §§ 238-239

been obviated by the specific requirement of the order of the interstate
commerce commission.91

The fact that a defective handhold was on top of a car, and not on the
side or end is unimportant.°2

If where the ends of the boards on the top of a car, which together form
the running board, come together, one of them is from a quarter to five
eighths of an inch higher than the other, and over this projecting board
an employee stumbled and was injured, the railroad is liable. However,
whether a board on the rear of an engine tender is a “running board” is a
question of fact for the jury in an action by an employee who tried to jump
upon it and was injured by its defective condition. The railroad not being
entitled to a ruling that it was not a “running board,” for the reason that it
was referred to interchangeably as a “footboard” and “running board.” %

§ 239. Lack of Equipment When Other Appliances Afford Equal
Protection.—Of course if a railroad company has in use a car upon which
the handholds or grab irons are missing, this is a violation of the statute.%
However, there are generally numerous appliances at the ends of cars which
would practically serve the same purpose and it has been held that when
they do so the act is not violated.°* But this holding is not considered sound
because the act having required the use of grab irons and handholds, excep-
tions ought not to be embodied therein by judicial construction %* which
would relieve the railroad from its duty in this respect and permit the use

Southern R. Co. (D. C.), 170 Fed. 1014.
See also, United States v. Norfolk,
etc., R. Co. (D. C.), 184 Fed. 99.

91. See Appendix B.

92. Missouri, etc., R. Co. v. Barring-
ton (Tex. Civ. App.), 173 S. W. 595.

“Furthermore, we find that at the
time appellee was hurt he was climb-
ing up to the top of the car on a lad-
der, and that by act of congress,
passed April 14, 1910, to supplement
an act to promote the safety of em-
ployees, etc. (U. S. Comp. Stat. 1901,
Supp. 1911, § 2, p. 132), it is provided,
among other things, that: ‘All cars
having ladders shall also be equipped
with secure handholds or grabirons on
their roofs at the top of such ladders.’ ”
Missouri, etc, R. Co. v. Barrington
(Tex. Civ. App.), 173 S. W. 595, 597.

93. Uneven running  board.—Cal-
houn v. Great Northern R. Co. (Wis.),
156 N. W. 198.

94. What constitutes running board
—Question for jury.—Bramlett  v.
Southern R. Co., 98 S. C. 319, 82 S.
E. 501.

95. Lack of equipment.—United
States v. Southern R. Co. (D. C.), 170
Fed. 1014.

96. Other appliances serving pur-
pose.—United States v. Boston, etc., R.
Co. (D.-C.), 168 Fed. 148.

Charging jury: “If at any place in
the end of this car there was not a
grabiron or handhold, properly speak-
ing, but some other appliance, such as
a ladder or brake lever, or whatever
else you please, which afforded equal
security with a grabiron or a handhold
at that point, then I shall instruct you
that the law has not been violated so
far as a grabiron or handhold at that
point is concerned. Having something
there which performs all the functions
of a grabiron or a handhold is just the
same thing as having what is properly
called a grabiron or a handhold at that
point. It may not be possible to say
that a coupling lever or a ladder is a
grabiron or a handhold, but if it af-
fords the same security to a man who
may need to use one that a grabiron
or a handhold, properly speaking,
would afford, then, in my judgment,
the statute has not been violated.”
United States v. Boston, etc., R. Co.
(D. C.), 168 Fed. 148, 151.

97. See ante, “Construction,” § 216.
506

§ 239 THE SAFETY APPLIANCE ACT.

-of something else.98 Thus where the tender of a locomotive had a running
board across its rear end and the uncoupling lever bar which ran nearly
across the entire end was so located and of such a character that it served as
a handhold on the end of the tender, the statute was held to have been vio-
lated as it did not appear, even with these appliances, that the handholds
would not have afforded a greater security.°® Besides many of such appli-
ances were known to congress when the act was passed and it must have
intended to require the use of these in addition to those already used. In
United States v. Norfolk, etc., R. Co. (D. C.), 184 Fed. 99, 100, the court
said:

“Tt was admitted that the various appliances relied upon as excusing the
presence of handholds, while not all in general use, were not unknown
in 1893, when the safety appliance act was first passed. This statute
as appears from its title was enacted ‘to promote the safety of employ-
ees and travelers. * * *’ So far as am aware we have no warrant
for assuming that congress was in 1893 ignorant of the use theretofore
made of air hose, etc., and of the measure of protection afforded em-
ployees by these appliances. It seems to me therefore a disregard of
the plain intent of this statute to hold that the presence of appliances
not unknown in 1893 could in any way be considered as excusing com-
pliance with § 4 of the act. As we cannot properly assume that con-
gress did not know of the use of air hose, steam hose, etc., and as the
act plainly intended to promote, to forward, to increase, the safety of
employees, a fair interpretation of the act seems to demand that we
construe it as intending to require protection in addition to that afforded
by the appliances in use to some extent at least prior to the passage of
the act. The concluding words of § 4 are, ‘for greater security to men
in coupling and uncoupling cars.’ I am, to say the least of it, highly
doubtful if the reason for using this language was to explain the object
in view in enacting § 4. But counsel for defendant necessarily contend
that such was the chief, if not the sole, reason for using the language
above quoted. If this view be at all sound, it seems to me that the

98. United States «7. Norfolk, etc. not. If they were not in use, it is im-

R. Co. (D. C.), 184 Fed. 99; United
States v. Baltimore, etc. R. Co. (D.
C.), 184 Fed. 94.

“Tt is clear congress intended to and
did require both the automatic coup-
ler, which included its uncoupling
lever or pin-lifting rod, and in addi-
tion, required grabirons or handholds
to be placed in the ends and sides of
cars. * * * That the act did not
contemplate such a_ substitution is
clear from its terms. It has been so
held by one federal court. United
States v. Baltimore, etc. R. Co. (D.
C.), 184 Fed. 94; United States v, Nor-
folk, etc., R. Co. (D. C.), 184 Fed. 99.
Either automatic couplers, with their
uncoupling ‘levers, were in use and
upon cars when the applicable safety
appliance act was passed or they were

possible that congress had them in
mind in requiring grabirons in the end
of cars. If they were in use, then the
act clearly contemplated grabirons in
addition to them in order to afford
employees ‘greater security’ than was
then afforded by whatever appliances
were upon the cars. It is true there
are decisions which construe the act
otherwise, but the cases cited are in
better accord with its language and

‘the circumstances attending its pas-

sage.” Moore v. St. Joseph, etc. R.
Co. (Mo.), 186 S. W. 1035, 1040.
99. United States v. Baltimore, etc.,

‘R. Co. (D. C.), 184 Fed. 94.

1. United States v. Norfolk, etc., R.
Co. (D. C.), 184 Fed. 99; United States
v. Baltimore, etc., R. Co. (D. C.), 184
Fed. 94.
507 EQUIPMENT AND SUFFICIENCY OF EQUIPMENT. §§ 239-240

words ‘greater security’ may reasonably be construed to imply greater
security than was afforded by appliances—other than handholds—in use
to some extent and not unknown prior to the passage of the act.”

§§ 240-243. Drawbars of Standard Height—§ 240. Require-
ments of Statute and Interstate Commerce Commission.—Under § 5
of the original act, the power to fix the standard height of drawbars of
freight cars, and a minimum variation from such standard khetween loaded
and unloaded cars, was given to the American Railway Association, by them
to be designated to the interstate commerce commission and the latter to
notify the railroads. But if the association failed to act, then the duty de-
volved upon the interstate commere commission. The action taken in com-
pliance with this law by the American Railway Association, which was duly
certified to and promulgated by the interstate commerce commission, was
contained in the following resolution: ‘Resolved, that the standard height
of drawbars for freight cars, measured perpendicular from the level of the
tops of the rails to the centers of the drawbars, for standard-guage railroads
in the United States, shall be 3414 inches, and the maximum variation from
such standard heights to be allowed between the drawbars of empty and
loaded cars shall be 3 inches. Resolved, that 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 drawbars, for the narrow-guage railroads in
the United States, shall be 26 inches, and the maximum variation from such
standard height to be allowed between the drawbars of empty and loaded
cars shall be 3 inches.”

However, under § 3 of the amendment of 1910, the interstate commerce
commission was authorized to change or modify the standard as originally
fixed. By an order of October 10, 1910, to become effective December 31,
1910, it was provided that: ‘The standard 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 the level of the tops of rails
to the centers of drawbars for standard-guage railroads in the United States
subject to said act shall be 34% inches, and the minimum height of draw-
bars for freight cars on such standard-gauge railroads measured in the same
manner shall be 311% inches, and on narrow-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 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 1714 inches, and the
minimum height of drawbars for freight cars on such 2-foot-gauge railroads
measured in the same manner shall be 141% inches.”
§ 241 THE SAFETY APPLIANCE ACT. 508

§ 241. Vehicles to Which Applicable.—The original act provided for
the fixing of a standard height for “freight cars,” and the orders of the in-
terstate commerce commission also thus designates them; but the amend-
ment of 1903 making the provisions extend to all trains, locomotives, etc.,
extends this provision also to others than “freight cars’’ when properly so
called.2. In Southern R. Co. v. Crockett, 234 U. S. 725, 58 L. Ed. 1564, 34
S. Ct. 897, the court said:

“We deem the true intent and meaning to be that the provisions and re-
quirements respecting train brakes, automatic couplers, grab irons, and
the height of drawbars shall be extended to all railroad vehicles used
upon any railroad engaged in interstate commerce, and to all other ve-
hicles used in connection with them, so far as the respective safety de-
vices and standards are capable of being installed upon the respective
vehicles. It follows that by the act of 1903 the standard height of
drawbars was made applicable to locomotive engines as well as to
freight cars. And so it was held by the circuit court of appeals for the
ninth circuit in Chicago, etc., R. Co. v. United States, 116 C. C. A. 44,
196 Fed. 882, 884.”

It has been expressly decided to extend to the locomotive * and in Chicago,
etc., R. Co. v. United States,t it was declared that, “in view of the language
of the act and its purpose, it was intended to include within the term ‘freight
cars’ all cars used in the movement of freight, whether freight was actually
stored in them or they were used for the purpose of moving the train, and
that there is included therein the locomotive at the head of the train and
the caboose at the other end.”

Furthermore, if a locomotive is constructed with a drawbar at each end
to which cars may be coupled and uncoupled, both must be of standard
height and it is not a defense when sued. for a violation that the locomotive
was only being used with the drawbar that conformed to standard® In
Chicago, etc., R. Co. v. United States, 116 C. C. A. 444, 196 Fed. 882, the
court said:

2. Vehicles to which applicable.—

festly enacted for the purpose of
Southern R. Co. v. Crockett, 234 U.

broadening the scope of the original

S. 725, 58 L. Ed. 1564, 34 S. Ct. 897;
Chicago, etc., R. Co. v. United States,
116 C. C. A. 444, 196 Fed. 882.

“The letter of the act was construed
in the light of its spirit and purpose,
as indicated by its title no less than
by the ‘enacting clauses. The same
guiding principle should be adhered to
in considering the question now pre-
sented. Conceding that it may be
doubtful whether the act, in its origi-
nal form, evidenced an intent on the
part of congress to standardize the
height of drawbars upon vehicles other
than freight cars, and therefore assum-
ing for argument’s sake that the act
was not in this respect applicable to
locomotive engines, it seems to us
that the amendment of 1903, mani-

act, must, upon a fair construction, be
deemed to extend its provisions and
requirements respecting the standard
height of drawbars, so as to make
them applicable to locomotives, ex-
cepting such as are in terms ex-
empted.” Southern R. Co. vw. Crock-
ett, 234 U. S. 725, 58 L. Ed. 1564, 34
S. Ct. 897.

3. Locomotive—Southern R. Co. v.
Crockett, 234 U. S. 725, 58 L. Ed. 1564,
34 S. Ct. 897; Chicago, etc, R. Co. v.
United States, 116 C. C. A. 444, 196
Fed. 882.

4. Locomotive and caboose.—116 C.
C. A. 444, 196 Fed. 882.

5. Both ends of locomotives.—Chi-
cago, etc., R. Co. v. United States, 116
C. C. A. 444, 196 Fed. 882.
509 EQUIPMENT AND SUFFICIENCY OF EQUIPMENT. 8§ 241-242

“The court in that case ® held there was no violation of the safety appli-
ance act in the use of an engine which had originally been equipped
with automatic couplers at the A. end and the B. end, but thereafter
the lock chain had been disconnected and the knuckle removed from
the coupler at the B. end, leaving that coupler in such a condition that
no other car could be coupled thereto or uncoupled therefrom, and
where it appeared that the coupler at the A. end was the only one used
at the time in question in moving interstate traffic. While with all re-
spect for that court we are inclined to doubt the correctness of that
ruling, we find it sufficient for the present case to point to the difference
‘between that case and this. There the coupler had been disconnected
and the knuckle taken out ‘in pursuance of a purpose that it should not
be used.’ In the case at bar the plaintiff in error was found using a
defective coupler at one end of the engine, and thereafter, having re-
versed the engine, was found using the other end for the purpose of
transferring cars. Nothing was shown indicative of a purpose to re-
frain from using both ends of the locomotive for coupling, and no
portion of the defective coupling device was removed. That device
remained, as it was before, a trap to the unwary.”

As seen before electric motors are as much within the act as steam locomo-
tives,” but when it is not the intention of a railroad company to couple and
uncouple cars from the front end of such a motor, it is under no obligation
to maintain drawbars at that end.8

§ 242. Variations in Height.—It is to be noted that the last order of
the interstate commerce commission provides only for a maximum and mini-
mum height without regard to the variations for load, and a standard gauge
car which is empty may be only 31% inches above the rails,® while the first
order required that the center of the drawbars of freight cars used on
standard-gauge railroads shall be, when the cars are empty, 3414 inches
above the level of the tops of the rails; but it permitted, when a car is partly
or fully loaded, a variation in the height downward, in no case to exceed 3
inches; but it did not require that the variation shall be in proportion to
the load, nor that a fully-loaded car shall exhaust the full 3 inches of the
maximum permissible variation and bring its drawbars down to the height
of 31% inches above the rails. If a car, when unloaded, has its drawbars
34Y% inches above the rails, and, in any stage of loading, does not lower its

6. Wabash R. Co. v. United States,
97 C. C. A. 284, 172 Fed. 864.

7. See ante, “Engines with Brakes
and Air Power,” § 227.

8. Electric motors—Campbell 7.
Spokane, etc., R. Co. (C. C.), 188 Fed.
516.

9. Variations in height—Under the
present order the following instruc-
tion declared properly refused in St.
Louis, etc, R. Co. v. Taylor, 210 U.
S. 281, 52 L. Ed. 1061, 28 S. Ct. 616,
could be given, “The court charges
you that the act of congress allows a

variation in height of 3 inches between
the centers of the drawbars of all cars
used in interstate commerce, regard-
less of whether they are loaded or
empty, the measurement of such
height to be made _ perpendicularly
from the top of the rail to the center
of the drawbar shank or draft line.”
It is based upon the theory that the
height of the drawbars of unloaded
cars may vary 3 inches, but the first
order required: that the height of the
drawbars of unloaded cars shall be
uniform.
510

§§ 242-243 THE SAFETY APPLIANCE ACT.

drawbars more than 3 inches, it complies with the requirements of the law.
If, when unloaded, its drawbars are of greater or less height than the stand-
ard prescribed by the law, or if, when wholly or partially loaded, its draw-
bars are lowered more than the maximum variation. permitted, the car does
not comply with the requirements of the law.!°

Where the drawbars of a car were less than the standard above the rails,
a violation of the act cannot be questioned on the ground that the condition
resulted, not from any defect in the drawbar itself, or in its attachment to
the frame of the car, but, from the breaking of a king pin, whereby the
frame to which the drawbar remained securely attached was lowered. But
the statute (§ 5) provides that “no cars, either loaded or unloaded, shall
be used in interstate traffic which do not comply with the standard above
provided for,” so it is immaterial whether the lowering was caused by the
sagging of the drawbar from the frame or the sagging of the entire frame;
and the resulting condition of noncompliance with the standard height would
be as observable in the one case as in the other.14

§ 243. Devices to Maintain Height.—The duty imposed being abso-
lute not only to provide the appliances required but to keep them in future
repair, and being nondelegable 12 it is not discharged, when the railroad
after making the drawbars on the cars conform to standard, but as they are
lowered by the natural effect of proper use, provides, in addition, to the cor-
rection of this by general repair, devices called “shims,” which are metallic
wedges of different thickness, to raise the lowered drawbars to the legal

standards and requires their use by trainmen.13
* 10. St. Louis, etc., R. Co. v. Taylor,

12. See ante, “Nature of Duty Im-

210 U. S. 281, 52 L. Ed. 1061, 28 S. Ct.
616, reversing 83 Ark. 591, 98 S. W.
958.

11. Due to sagging of whole frame.
—Atchison, etc, R. Co. v. United
States, 117 C. C. A. 341, 198 Fed. 637.

posed,” § 217.

13. Devices to maintain height.—St.
Louis, etc., R. Co. v. Taylor, 210 U.
S. 281, 52 L. Ed. 1061, 28 S. Ct. 616,
reversing 83 Ark. 591, 98 S. W. 958.
CHAPTER XXXIII.

INSPECTION AND REPAIR.

1. Duty of Government Inspectors, § 244.

2. Duty of Railroad, § 245.

3. Establishment and Maintenance of Repair Points, § 246.

4, Hauling Cars to Repair, §§ 247-251.
a. Under Original Act, §§ 247-248.

(1) Defects Developed in Transit, § 247.
(2) Movement with Commercial Cars, § 248.
b. Under Amendment of 1910, §§ 249-251.
(1) Provision and Object of Amendment, § 249.

(2) Retroactive Operation, § 250.

(3) Movements Embraced under Amendment, § 251.

§ 244. Duty of Government Inspectors.1—A government inspector
is under no legal obligation to inform the railroad company of defective

cars.”
302, the court said:

In Norfolk, etc., R. Co. v. United States, 112 C. C. A. 46, 191 Fed.

“Tf it is the intention of the law that when an inspector goes from place
to place, and when he finds a car in a defective condition that it is his
duty to notify the company of the same before the car is transported,
then it would be impossible to secure anything like a fair enforcement

1. Duty of government inspectors—
As to mail cars.—In the act of May
27, 1908, ch. 200, 35 Stat. at L. 325, it
is provided that, ‘Hereafter all in-
spectors employed for the enforce-
ment of said act (Act of March 2, 1903,
ch. 196) shall also be required to make
examination of the construction, adapt-
ability,_ design, and condition of all
mail cars used on any railroad in the

United States and make _ report
thereon, a copy of which report shall
be transmitted to the Postmaster-
General.”

2. To inform company of defects.
—Chicago, etc, R. Co. wv. United

States, 127 C. C. A. 438, 211 Fed. 12;
Norfolk, etc., R. Co. v. United States,
112 C. C. A. 46, 191 Fed. 302; United
States v. Baltimore, etc, R. Co. (D.
C.), 170 Fed. 456; United States v. Chi-
cago, etc, R. Co. (D. C.), 162 Fed.
775. .

, However, in United States v. Balti-
more, etc. R. Co. (D. C.), 170 Fed.
456, 461, while the absence of a legal
duty was recognized, the judge con-
sidered that inspectors were under a
moral duty to inform the company of
defects and gave the following charge:

511

“T have been asked to charge you that
it was not necessary for the agents or
officers of the interstate commerce
commission to notify the railroad com-
pany of these defects, and I will so
charge you that there was no legal lia-
bility upon them to do so. But I can
not help but feel that, in view of the
purpose for which this act was passed,
and in view of the fact that those
points were repair points, it was a
matter of common ordinary honesty,
for the purpose, a matter of common
ordinary human obligation, to have in-
formed the railroad company, if they
had time to inform them, or to in-
form the officers in charge of the re-
pairing and inspecting of the cars
there, before permitting those cars to
go out upon the road as a menace to
people who might have to use them,
of defects found. I will charge you

‘that there was no legal liability upon

them to do so, but I have expressed
myself as I have done, because I think
that is right.”

As to discrediting testimony of in-
spectors for failure to make known de-
fects, see post, “Testimony of Inspect-
ors,” § 279.
512

§ 244 THE SAFETY APPLIANCE ACT.

of the law which penalizes the railroads for not properly equipping
and maintaining their cars with safety appliances. In the case of
United States v. Atchison, etc., R. Co., Kent’s Index-Digest, 125, the
court said: ‘Inspectors in the employ of the interstate commerce com-
mission are not required to inform the employees of the defendant,
when they make the inspection of the cars sued upon, of the defects
found in the appliances.’ Also in the case of the United States v. Chi-
cago, etc., R. Co. (D. C.), 162 Fed. 775, the.court said: “The inspect-
ors for the government are not required to notify the employees of
the railroad company of existing defects previous to or at the time
of movement of defective cars sued upon of the defects found in the
appliances.’ ”

Government inspectors are no part of a railroad company’s repair force,
it is their duty to ascertain whether or not the company is violating the
statute, and the company cannot complain that they did not inform it of a
defect in a coupler so that it might have been repaired before movement.
To so hold would make it almost impossible to enforce the statute. It would
be difficult to show that at the end of a trip a car was defective in the be-
ginning as such evidence could only be obtained from employees and would
tend to show them guilty of negligence in not remedying a known defect.

Nor is an inspector under a duty to make himself known when inspecting
for violations. It is provided by the rules® governing inspection that in
any inspection, except those intended to secure evidence of violation of the
law, that the inspector should make himself known to the officer in charge,
or, in the absence of the agent, the next official in authority, and, whenever
practicable, the official found in charge should be invited to accompany or
send a representative with the inspector so as to have his attention called
to any defects and the same noted. The next paragraph is explanatory of
this rule, and, among other things, it is stated therein that the inspectors
must observe the rules under which they operate and enter upon every

‘investigation with a spirit of fairness and a desire to perform their whole
duty as officials directed to aid in the execution and enforcement of the law.
But when an inspector at the time was endeavoring to secure evidence of

pany or send a representative with the
inspector, and the person so accom-
panying the inspector should have his

8. Chicago, etc. R. Co. v. United
States, 127 C. C. A. 438, 211 Fed. 12.
4. To make identity known.—Nor-

folk, etc., R. Co. v. United States, 112
Cc. C. A. 46, 191 Fed. 302.

5. “In all inspections except in those
intended to secure evidence of viola-
tion of the law, the inspector should
maks himself known to the foreman

or other official of the mechanical de-’

partment or in the absence of that offi-
cer, to the agent or other employee
next in authority. In all cases have
name and title of such officer or em-
ployee included in report of inspection.
Whenever practicable the official found
in charge should be invited to accom-

attention drawn to all defects noted.
The time of making inspections is to
be shown on each report. *

The object of those instructions is to
call the attention of inspectors to cer-
tain rules to be observed in obtaining
evidence upon which the government
can successfully prosecute. Inspectors
should enter upon the investigation of
every case in a spirit of fairness and
with a desire to perform their whole
duty as officials of the government,
directed to aid in the execution and
enforcement of the law.”
513 INSPECTION AND REPAIR. §§ 244-245

violation of the law, the exception to the rule is to the effect that in such
cases he is not required to make himself known.®

§ 245. Duty of Railroad.—The duty imposed by the act being not to
haul or use any cars not equipped as required,’ a railroad is not excused
when the defects were not discoverable by a reasonable inspection. The
act requires those defects to be found at the peril of the company, and, if
they fail to find them, then they are responsible for the penalty, even though
they may have honestly done all in their power to do. If there is care-
lessness and negligence, of course, they would be responsible; but even if
they put careful men on, and careful men had done their work as well as
they knew how, nevertheless, if through some oversight, which even the
most careful men are liable to commit, a defect was not discovered, then

the company would be responsible.9

6. Norfolk, etc, R. Co. v. United
States, 112 C. C. A. 46, 191. Fed. 302.

7. Duty of railroad——As to inspec-
tion of foreign cars, see ante, “For-
eign Cars,” § 224.

8. Chicago, etc, R. Co. v. United
States, 220 U. S. 559, 55 L. Ed. 582,
31 S. Ct. 612; United States v. Trinity,
etc., R. Co., 128 C. C. A. 120, 211 Fed.
448; United States 7. Philadelphia, etc.,
R. Co. (D. C.), 160 Fed. 696; South-
ern R. Co. v. Snyder, 109 C. C. A. 344,
187 Fed. 492; United States v. South-
ern R. Co. (D. C.), 135 Fed. 122;
United States v. Atchison, etc., R. Co.,
90 C. C. A. 327, 163 Fed. 517; Calhoun
v. Great Northern R. Co. (Wis.), 156
N. W. 198.

In Chicago, etc. R. Co. vw. United
States, 220 U. S. 559, 55 L. Ed. 582,
31 S. Ct. 612, it is said: “After re-
ferring to various cases holding, that
the omission of congress to make
knowledge and diligence on the part
of the carrier ingredients of the act
condemned: the trial court said: ‘Its
omission was intentional, in order that
this statute might induce such a high
degree of care and diligence on the
part of the railway company as to ne-
cessitate a change in the manner of in-
specting appliances, and to protect the
lives and safety of its employees, pro-
vided the accident occurs from a de-
fective appliance such as is designated
in this act. And for these reasons the
jury will be peremptorily instructed to
find a verdict for the government.”
See also, St. Louis, etc, R. Co. uw.
York, 92 Ark. 554, 123 S. W. 376, where
there was no evidence of the exercise
of ordinary care on the part of the de-
fendant in making an inspection.

Contra—United States v. Illinois
Cent. R. Co., 95 C. C. A. 628, 170 Fed.

Fed Act—33

542, where it is declared that the gov-
ernment having made out a case the
burden is on the defendant to prove
“that it has used all reasonably possi-
ble endeavor to discover and correct
the fault.”

The case of United States v. Atchi-
son, etc., R. Co. (D. C.), 150 Fed. 442,
443, to the contrary was reversed in
90 C. C. A. 327, 163 Fed. 517.

9. Defects not discovered by most
careful inspection.—United States vw.
Philadelphia, etc., R. Co. (D. C.), 162
Fed. 403. See in accord United States
v. Philadelphia, etc. R. Co. (D. C.),
162 Fed. 405; United States v. Penn-
sylvania R. Co. (D. C.), 162 Fed. 408;
United States v. Lehigh Valley R. Co.
(D. C.), 162 Fed. 410; Norfolk, etc.,
R. Co. v. United States, 112 C. C. A.
46, 191 Fed. 302. See ante, “Nature of
Duty Imposed,” § 217. /

Instructions —‘“But after a railroad
company has performed such duty and
equipped its cars with such automatic
couplers, while the law requires the
railroad company to exercise a high
degree of care and diligence in keep-
ing and maintaining such safety appli-
ance in proper condition and repair,
so far as by reasonable inspection from
time to time it can be reasonably done,
the law does not impose upon a rail-
road company the duty of an absolute
insurer as to the perfect condition of
such safety appliances at all times and
under all conditions and circum-
stances.” Held properly refused as
not conforming to the degree of care
required. Norfolk, etc, R. Co. v.
United States, 112 C. C. A. 46, 191 Fed.
302.

“In other words, the question of dil-
igence or carefulness on the part of
the carrier in inspecting the cars has
514

§ 245 THE SAFETY APPLIANCE ACT.

If then, an opportunity to inspect is shown, and inspectors fail to find
an existing defect the company is liable.1° Thus the defendant was held lia-
ble for a broken finger or lifting key that worked within the coupling-block
and which would not appear on an external view but a manipulation of the
lever without moving the car would disclose it; defendant failing to show
any inspection of the car as would reveal its defective condition and there
was no proof of its having been broken so recently as to preclude the pos-
sibility of discovery by inspection.1! And where in a cut of cars eight are
found defective by government inspectors, after the inspectors of the com-
pany had failed to find any defects, such inspection is so weak as to be
farcial.1?

The railroad cannot by its rules require an employee to inspect and re-
port defects, and for a failure to do so hold him guilty of contributory neg-
ligence in violating rules.13 And also where one railroad operates its trains
over the lines of another company under a traffic agreement and the in-
spectors of the latter also inspect the cars of the former, it cannot thus by
contract dispense with any care required of it by law, and the most that
could be said of such a situation would be that it had voluntarily made the
inspectors of the other company its own.14

Repairs also must be made at once when possible before a car is hauled
or used.1® and the exercise of reasonable care in making them, 1° or keeping
them in good repair, 17 is no excuse. And this has been declared to be true
even though the defect existed so recently that in the exercise of ordinary
care it was impossible to replace or repair it.18 Certainly the company

nothing at all to do with the matter

1 € find them at its peril. If its inspectors
now before you. The obligation is laid

failed to find them, then the liability for

upon the carrier by the statute to find,
in effect, any defect that may exist,
when it has, as it had under these cir-
cumstances, the opportunity to discover
it, and, if its inspectors do not discover
it, then the carrier is liable for those
defects and for the penalty that is im-
posed for the use of the car having
such defects.” United States v. Phila-
delphia, etc, R. Co. (D. C.), 162 Fed.
405, 407.

10. Opportunity to inspect and fail-
ure to discover defects—United States
z. Louisville, etc., R. Co. (D. C.), 156
Fed. 193; United States v. Philadelphia,
etc, R. Co. (D. C.), 160 Fed. 696;
United States v. Lehigh Valley R. Co.
(D. C.), 162 Fed. 410.

“Here is a case in which this car has
been shown to have been at rest at
East Penn Junction for a number of
hours, and therefore when there was
an opportunity to inspect upon the
part of the railroad company. Now,
under such circumstances, my reading
of the statute is that it imposes upon
the company the duty to find the de-
fects, if defects exist, and that it must

the penalty exists if the car is after-
wards moved without having the de-
fects repaired.” United States uv. Le-
high Valley R. Co. (D. C.), 162 Fed.
410, 412.

11. Chicago, etc. R. Co. v. United
States, 91 C. C. A. 373, 165 Fed. 423,
20L. R.A, N.S, 473.

12. United States v. Southern R. Co.
(D. C.), 135 Fed. 122.

13. Requiring employee to inspect.
—Chicago, etc., R. Co. v. Walters, 217
Ill. 87, 75 N. E. 441. As to delega-
tion of duty, see ante, “Nature of Duty
Imposed,” § 217.

14. Inspectors of one company act-
ing for another.—Philadelphia, etc., R-
Co. v. United States, 111 C. C. A. 661,
191 Fed. 1.

15. See post, “Hauling Cars to Re-
pair,” §§ 247-251.

16. United States v. Southern R. Co.
(D. C.), 170 Fed. 1014.

17. Wabash R. Co. v. United States,
97 C. C. A. 284, 172 Fed. 864.

18. United States v, Wheeling, etc.,
R. Co. (D. C.), 167 Fed. 198.
515 INSPECTION AND REPAIR. §§ 245-247
cannot excuse itself by showing when sued for injuries that an appliance

was temporarily out of repair.®

§ 246. Establishment and Maintenance of Repair Points.—It is
the duty of a railroad company, subject to thé provisions of the safety ap-
pliance act, to establish reasonable repair points along its line of rail-
way for the making of repairs of the kind necessary to comply with the
law—that is to say, repair points at places where they are reasonably re-
quired. It is also the duty of a railroad company to have on hand at such
repair points the material and facilities necessary to make all such repairs,
and a railway company must use reasonable foresight in providing material
and facilities for such purpose; and, if a railroad hauled any car defective as
to safety appliances over its line of railroad from any such repair point,
where by the exercise of reasonable diligence and foresight such repairs
could have been made, it will be guilty of a violation of the act.?°

§§ 247-251. Hauling Cars to Repair—§§ 247-248. Under Orig-
inal Act—§ 247. Defects Developed in Transit.—Though the statute
as originally passed did not contain any provision which would permit a
railroad company to haul or use a defectively equipped car, still if the cars
were equipped with the requisite appliances, and were in the condition re-
quired by the law when they were received by the railroad to be hauled
upon its line, but during the time they were being so hauled they from any
cause became injured or out of repair, so that they were not in an operative
condition, then the railroad would be required to immediately repair said
defects and put the appliances in operative condition, if it could do so
with the means and appliances at hand at the time and place when and
where it discovered their defective and inoperative condition, or when such
condition could have been discovered by the exercise of reasonable care on
part of its agents or servants charged with that duty.?1

When the defects are such that they may be repaired at the point where
they are discovered, then they must be there repaired and not delayed until
the cars are unloaded, or removed to the shop.22. An illustration is afforded

19. United States v. Great Northern
R. Co. (D. C.), 150 Fed. 229.

20. Establishment and maintenance
of repair points—United States v.
Atchison, etc. R. Co. (D. C.), 167
Fed. 696; United States v. Southern
Pac. Co. (D. C.), 167 Fed. 699.

21. Defects repairable in transit.—
United States v. Southern Pac. Co. (D.
C.), 154 Fed. 897; United States v.
Southern Pac. Co. (D. C.), 167 Fed.
699; United States wv. Chicago, etc., R.
Co. (D. C.), 162 Fed. 775; United
States v. Atchison, etc., R. Co. (D. C.),
167 Fed. 696. See also, United States
v. Illinois Cent. R. Co. (D. C.), 156
Fed. 182.

“While the safety appliance law does

not ask a railway company to do the
impossible, it does nevertheless place
upon such company the responsibility
of properly equipping its cars in the
first instance, and the maintaining of
such equipment in good operative con-
dition at all times thereafter. Of
course, if, while a car is being hauled
between repair stations, some defect
occurs to its safety appliances, such
railway company must use the utmost
care to discover and repair such de-
fects, if the nature of the repairs will
permit of their being made at that
time and _ place.” United States v.
Southern Pac. Co. (D. C.), 167 Fed.
699, 700.

22. United States v. Louisville, etc.,
R. Co. (D. C.), 156 Fed. 193.
§ 247 THE SAFETY APPLIANCE ACT. 516

by what was done in a case, where after the defective cars were taken into
the terminal yards, it was necessary to uncouple them to set them out for
unloading, and to couple them again for transportation to the company’s
car shops, with possibly other couplings and uncouplings to be made. So
that the danger to the brakeman continued, and must needs have continued,
until relieved by the proper repairs being made. That this is just the dan-
ger that congress intended to relieve against by the adoption of the act, and
that it is what the defendant’s duty required it to relieve against by mak-
ing the repair of the defects prior to taking the cars into the terminal com-
pany’s yards. The shortness of the haul does not alter the case.2® In
United States v. Southern Pac. Co. (D. C.), 154 Fed. 897, 900, the court
said:

“The next question is whether the defendant company should have made
the repairs before hauling the cars across the river and into the terminal
yards. There are here two phases of the question. One involves the
condition that the couplers were capable of repair, in the respect that
the law requires, without the necessity of taking the cars to the repair
shops. If they were, there can be no further contention, because it
would surely follow that the defendant should have repaired the de-
fects before moving the cars further upon their journey. I say further
upon their journey, because the cars were yet in transit; the point of
destination had not been reached; nor was it reached until they were
set in at the place of unloading. The chain coupling the lock pin with
the lever, is a very simple device, consisting of a few links of a small
chain, easily attachable with the aid of light tools, and there exists no
reason why it should not be readily repaired or replaced at any stage
in the journey without serious or material inconvenience. or delay.
But if Iam in error as to the fact of the readiness with which the re-
pairs can be made, then the other phase of the question arises, which is,
whether the cars should have been taken to the car shops for repair be-
fore being carried to the terminal yards for unloading. It is urged that
the court should take into consideration the convenience and practica-
bility of repairing the defects. ‘To be understood, it should be said
that the term ‘impracticable’ is not employed in the answer to indicate
that it was impossible to set the cars out and take them to the repair
shops before carrying them on their journey; but that it was imprac-
ticable so to do, in the sense that it would unduly impede and interfere
with the transportation of freight by cars, and in special instances
might result in loss to either the shipper or carrier, or to both, as in the
case where perishable goods were being transported. While congress
may have taken into consideration, and presumably did, the inconven-
ience to railroad companies in providing equipment of the character
here under consideration, and in keeping the same in repair, yet by
its positive enactment it manifestly considered the safety of the brake-
ment and employees who are charged with the duty of coupling and
uncoupling cars paramount; and, having made no exception in terms,
the natural conclusion is that the act was intended to apply in all cases
where the cars were being used in moving interstate traffic.”

23. United States v. Southern Pac. Co. (D. C.), 154 Fed. 897.
S17 INSPECTION AND REPAIR. § 247

Though the movement of a car made from the point where it is first dis-
covered to be defective to its final destination and unloaded, if the defect
is one which could not be repaired without unloading and movement to the
shop, will not be considered a violation of the statute, when the car is in a
conjested yard and the objects and purposes of the statute would be better
complied with by such a movement.24_ However, if there are minor defects
in a car repairable on discovery the fact that there is also a defect which
can only be repaired in the shop, does not justify the railroad in postponing
the whole repairs until the car reaches the shop, but such minor defects
must be repaired at once.25

Defects Repairable Only at Shop.—lIf a railroad company did not.
at the time when and place where a defect was discovered have the requisite
means or appliances at hand to remedy a defect and put the appliances in
good condition, then it would have the right, without incurring the penalty
of the law, to haul such car or cars to the nearest repair point on its line
where such defects could be repaired and the appliances put in operative
condition.26 In doing this the company cannot choose its place of making
repairs, but must avail itself, for that purpose, of the nearest point where,
by the exercise of diligence and foresight, it may prepare to make such re-
pairs, 27 and that it was more convenient or economical to make them at

another place will not excuse a hauling pass the nearer place.?8

24. Cars not repaired unless un-
loaded. United States v. Loyisville,
etc., R. Co. (D. C.), 156 Fed. 195.

25. Postponing all repairs until
reaching shop. — United States vw.
Southern Pac. Co. (D. C.), 154 Fed.
897.

26. Defects repairable only at shop.
—United States v. Southern Pac. Co.
(D. C.), 167 Fed. 699; United States v.
Chicago, etc. R. Co. (D. C.), 162 Fed.
775; United States v. Atchison, etc. R
Co. (D. C.), 167 Fed. 696; United
States v. Rio Grande, etc., R. Co., 98
Cc. Cc. A. 293, 174 Fed. 399; United
States uv. Illinois Cent. R. Co., 95 C.
C. A. 628, 170 Fed. 542.

It is not a violation of the act to
move under its own power an engine
which also moves a train when the
front end has the coupler missing,
when the main purpose of moving the
engine is to effect the repairs, which
could not be done at a nearer point.
United States v. Southern Pac. Co. (D.
C.), 167 Fed. 699.

“There was evidence that the in-
_ spector for the government found Or-
egon Short Line Car No. 4582, which
was charged in one of the counts to
have been defective, upon the icehouse
track in the yard of the defendant, that
it had one draft timber broken, one
spring and two followers gone, one

So where

pin chain broken, one end gate gone,
two end gate rods gone, that it was
impossible to repair it effectually in
that yard, and that for this reason it
was hauled over onto’ connecting
tracks of the Southern Pacific Railroad
Company at Ogden, and was there
shopped and repaired. There was no
evidence that this car was hauled over
to the shop for any other purpose than
to have the necessary repairs made
upon it, or that its trip to the shop
tracks was or could have been used for
any other purpose than to secure the
making of these necessary repairs.”
United States v. Rio Grande, etc. R.
Co., 98 C. C. A. 293, 174 Fed. 399.

27. Choice of place—Convenience
and economy.—United States v7. South-
ern Pac. Co. (D. C.), 167 Fed. 699.
See also, United States 7. St. Louis,
etc, R. Co. (D. C.), 154 Fed. 516.

28. Chicago Junction R. Co. v. King,
94 C. C. A. 652, 169 Fed. 372. See also,
post, “Movements Embraced under
Amendment,” § 251.

“If the exercise of reasonable care
in maintaining the statutory standard
of equipment will not exempt a car
movement as being beyond the spirit,
and therefore the reach, of the stat-
ute * * * much less will mere
convenience be accepted as an excuse.”
Chicago Junction R. Co. v. King, 94
C. C. A. 652, 169 Fed. 372.
§§ 247-248 THE SAFETY APPLIANCE ACT. 518

an interstate carrier hauls cars, considerably damaged by derailment so that
the coupling devices are gone, three hundred and seventy-nine miles past
three or more places where repairing is done in order to make repairs at
larger and better equipped shops it violates the safety appliance law.?? In
United States v. Southern Pac. Co. (D. C.), 154 Fed. 897, 901, the court

said:

“If a breakage occurs between stations where repair shops are located,
and the repair cannot be made without taking the car to such a place,
the éompany cannot be held liable until it has had the opportunity of
making the repair, and in that event it would be justified in hauling the
car in the train to the succeeding station where such repairs could be
made. This does not, however, give to the company the discretion of
carrying the car forward to repair shops at destination. If it were per-
missible to carry the car by one repair shop to another, where the re-
pair could be more conveniently made, then it could, with equal propri-
ety, be claimed that the car might be carried by and beyond two or
more of such stations, and, indeed, to cover an entire journey from the
Middle West to the Pacific seaboard. This would detract vitally from
the utility of the law, as brakemen might, in the course of such a haul,
be required to pass many times between the cars for the coupling and
uncoupling of the particular car or cars with defective equipment.”

If a defective or inoperative condition of the appliances existed at a repair
point on defendant’s line, or at a place where such defects could have been
remedied, then, if it hauled a car or cars from such place in such condition,
it would do so at its peril and be liable for the statutory penalty for so haul-
ing or using the cars.30

§ 248. Movement with Commercial Cars.—When a car is discov-
ered to be defective and cannot be repaired at the point of discovery, it
must then be disconnected from other cars commercially used, 1 and its

29. United States v. Chicago, etc, R. repair point.” United States v. South-

Co. (D. C.), 149 Fed. 486.

30. Hauling from repair point de-
fective cars—United States uv. Chi-
cago, etc. R. Co. (D. C.), 162 Fed.
775; United States v. Illinois Cent. R.
Co., 95 C. C. A. 628, 170 Fed. 542;
United States v. Atchison, etc., R. Co.
(D. C.), 167 Fed. 696; United States v.
Southern Pac. Co. (D. C.), 167 Fed.
699. See also, United States v. Col-
orado Mid. R. Co, 121 C. C. A. 194,
202 Fed. 732.

“And if a defect exists at a repair
point, or at any place where such de-
fect could have been repaired, and the
company moves the car while in the
defective condition, it does so at its
peril, and it becomes then subject to
the penalty of the law. The law is not
satisfied by the exercise of reasonable
care to this end; but the company must
at its peril discover and repair all de-
fects before removing a car from a

ern Pac. Co. (D. C.), 167 Fed. 699, 701.

31. Movement with commercial cars.
—Chicago, etc., R. Co. v. United States,
93 C. C. A. 450, 168 Fed. 236, 21 L.
R. A. N. S. 690, reversing 157 Fed.
616; United States v. Southern Pac.
Co., 94 C. C. A. 629, 169 Fed. 407;
Southern R. Co. vw. Snyder, 124 C. C.
A. 60, 205 Fed. 868; United States v.
St. Louis, etc. R. Co. (D. C.), 154
Fed. 516; Southern R. Co. wv. Snyder,
109 C. C. A. 344, 187 Fed. 499.

In United States v. St. Louis, etc.,
R. Co. (D. C.), 154 Fed. 516, the rail-
way company hauled two ‘freight cars
into Memphis, Tenn. just prior to
June 27, 1906, and on that date, while
in the defendant’s yards, the two cars
were inspected by United States in-
spectors and found to be defective as
to couplers. The two cars were then
empty, and, with the two defective
ends chained together, the cars were
519

future movement either alone, ?2 or with other defective cars.33

INSPECTION AND REPAIR.

§ 248

In Chi-

cago, etc., R. Co. v. United States, 93 C. C. A. 450, 168 Fed. 236, 21 L. R.
A., N. S., 690, reversing 157 Fed. 616, the court said:

“The only practical method of railroading requires that such vehicles,
when out of repair, shall be taken to the shops; and if they are wholly

placed in a freight train destined to
Arkansas and the West; and the same
day they were inspected and found de-
ficient, and were hauled out of Tennes-
see and into Arkansas by the defend-
ant in that case, and these two cars
were waybilled to Baring Cross shops,
Arkansas, near Little Rock, to be re-
paired. The defendant in that case
contended that, under § 2 of the act of
congress, these cars were not used in
moving interstate traffic. The court
said: “It is insisted, however, that
these cars were not being used, but
were chained together and on the way
to-the shop for repairs. It is true that
they were not being used in the’ sense
that they were loaded, so also it is true
that they were on the way to the
shops. But it is equally true that they
were cars that were ‘used in moving
interstate traffic,’ albeit at this particu-
lar time they were empty. They were
being hauled over defendant's line of
railroad, and were not equipped with
couplers, coupling automatically by
impact, and which could not be un-
coupled without the necessity of men
going between the ends of the cars.
The fact that these two cars were
being hauled to the repair shops in the
manner disclosed by ‘the evidence can
not avail the defendant. The statute
makes no such exception.”
“Although the injury did not occur
while the car was in a train bound for
Lenois City, but while employed in
switching and transfer operations,
there was testimony tending to show
that it had not been withdrawn from
connection with cars commercially em-
ployed. Unless so withdrawn, the car,
if otherwise subject to the act, would
not be relieved therefrom by _ its
own withdrawal from commercial use.
There was also testimony tending to
show that the car in question was at
the time of the accident employed in
connection with cars engaged in inter-
state traffic, and thus made subject to
the act, even if not itself a car engaged
in such interstate commerce. The tes-
timony tended to shqw that the car
was, through the fault of the defend-
ant, placed on the transfer track in
question; that this track was used with-
out discrimination for both state and
interstate traffic in connection with the
making up and unmaking of trains; that

on this track at the time were cars
employed in commerce generally, as
well as cars actually engaged in inter-
state commerce, whose movement in
fact precipitated the collision and con-
sequent injury to plaintiff.” Southern
R. Co. v. Snyder, 109 C. C. A. 344, 187
Fed. 492.

32. Must be alone.—Chicago, etc.,
R. Co. v. United States, 93 C. C. A. 450,
168 Fed. 236, 21 L. R. A. N. S., 690,
reversing 157 Fed. 616; Siegel v. New
York Cent., etc., Railroad (C. C.), 178
Fed. 873; Gray v. Louisville, etc., R.
Co. (C. C.), 197 Fed. 874. See also, St.
Louis, etc., R. Co. 7. Conarty, 106 Ark.
421, 155 S$. W. 93, reversed on other
grounds in 238 U. S. 243, 35 S. Ct. 785.

83. With others defective —Chicago,
etc., R. Co. v. United States, 93 C. C.
A. 450, 168 Fed. 236, 21 L. R. A. N.
S., 690, 157 Fed. 616 reversed; South-
ern R. Co. v. Snyder, 109 C. C. A.
344, 187 Fed. 492.

“While a carrier may move empty
cars by themselves to repair shops for
the purpose of having them placed in
condition to comply with the safety
appliance acts, without being guilty of
a violation of those acts while engaged
in an honest effort to meet their re-
quirements, yet the cars, in any move-
ment for the purpose of repairing them
after they so become defective, must,
in order not to be subject to the act,
be wholly excluded from commercial
use themselves and from other vehi-
cles which are commercially employed.”
Southern R. Co. v. Snyder, 109 C. C.
A. 344, 187 Fed. 492. ,

Reading the statute and its amend-.
ments together they include “first, ve-
hicles actually moving interstate traf-
fic; second, such vehicles, though
empty, when moving to points for the
purpose of receiving interstate traffic,
or otherwise commercially used by the
carrier; and, third, vehicles used in
connection with vehicles é¢mbraced in
either of the two former classes. This
would include cars that were out of
repair, and were being transported
solely for the purpose of repair, if they
were placed in trains whose vehicles
come within either of the first two
classes.” Chicago, etc., R. Co. 7. United
States, 93 C. C. A. 450, 168 Fed. 236,
21 L. R. A, N. S., 690, reversing 157
Fed. 616.
§§ 248-249 THE SAFETY APPLIANCE ACT. 520

excluded from commercial use themselves, and from other vehicles
which are commercially employed, they do not fall within any of
the classes covered by the safety appliance acts. A carrier may move
one or more cars by themselves to repair shops, for the purpose of
having them placed in a condition to conform to the safety appliance
acts, without being guilty of a violation of those acts while thus en-
gaged in an honest effort to meet their requirements.”

The movement of a defective car, though empty along with other cars
used in interstate commerce, presents the very danger that the act was in-
tended to obviate24 In Chicago, etc., R. Co. v. United States, 91 C. C. A.
373, 165 Fed. 423, 20 L. R. A., N. S., 473, the court said:

“Eyen if the car did not itself carry traffic, it was engaged in intercourse
between the states. The particular purpose of the movement or the
character of the vehicle running on the rails between points in different
states is not important. * * * Moreover, the case is wholly within
the spirit of the act of congress, for the presence in such a train of an
empty, crippled car having no appliances as prescribed by § 2 of the
act, or no grab irons or hand holds required by § 4, or with drawbars
higher or lower than as fixed under § 5, albeit the car is being for-
warded for repairs, threatens the very dangers to life and limb against
which congress has commanded the maintenance of safeguards. It
is said it was not intended that the two cars chained together should
be separated before they reached the repair shops, but no one could
foretell that an emergency would not arise requiring it, and the prob-
ability or improbability of it being necessary for an employee to go be-
tween the cars cannot qualify the duty of the carrier to observe the re-
quirements of the statute.”

However, it has been held that a car switched for repairs along with other
cars is not a violation of the act, though it might have been switched by
itself after the others had been hauled away from it. As it still would have
had to be coupled to and uncoupled from the engine, by which it was being
drawn, which could only have been done by going in ‘between the two, with
the same exposure to danger; and this circumstance was of no- signifi-
cance.35 This decision would seem to overlook the fact that in any move-
ment of cars the fewer there are, the easier it is to control them. - And
the coupling of an engine and car alone, presents much less danger than
coupling a car to an engine with a string of cars.

§§ 249-251. Under Amendment of 1910—§ 249. Provision and
Object of Amendment.—Under § 4 of the amendment of 1910 there is a
proviso, “that where any car shall have been properly equipped, * * *
and such equipment shall have become defective 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

34. Chicago, etc, R. Co. v7. United 35. Contra—Siegel v. New York
States, 91 C. C. A. 373, 165 Fed. 423, Cent., etc., Railroad (C. C.), 178 Fed.
20 L. R. A. N. S., 473. 873, 875.
521 INSPECTION AND REPAIR. § 249

defective or insecure to the nearest available point where such car can be
repaired, without liability for the penalties imposed * * * if such
movement is necessary to make such repairs and such repairs cannot be
made except at such repair point; * * * 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.” This amendment is only a declaration of the law
as enforced by the courts, and in addition permits a hauling of defective
cars with chains in association with other cars only when they contain
live stock or “perishable” freight. The courts had not as yet recognized this
exception.3®

It is manifestly the purpose of this statute in cases where equipment on
any car may become defective to permit the railroad company to haul the
same to the nearest available point where the proper repairs can be speedily
made. Any movement of a defective car was held to be a violation of the
act as originally passed. It was undoubtedly the purpose of congress in
adopting the amendment of 1910 to somewhat relax the rigid rule which had
theretofore been announced as to the time within which repairs of defective
cars should be made.**

But it is to be noted that it only relieves from the penalty and the civil
liability remains as before.28 As it is also provided that: “Such movement
or hauling of such car shall be at the sole risk of the carrier, and nothing in
this section shall be construed to relieve such carrier from liability in any
remedial action for the death or injury of any railroad employee caused to
such employee by reason of or in connection with the movement or hauling

36. Provision and object of amend-
ment of 1910—See ante, “Movement
with Commercial Cars,” § 248.

37. United States v. Chesapeake, etc.,
R. Co., 130 C. C. A. 262, 213 Fed. 748;
Galveston, etc., R. Co. v. United States,
118 C. C. A. 339, 199 Fed. 891. ;

“By incorporating the provision * * *
{in § 4], and declaring the same as a
supplement to the act of 1893, we may
safely infer that it was intended by
congress to give the proper construc-
tion to the act of 1893.’ Galveston,
etc., R. Co. v. United States, 118 C. C.
A. 339, 199 Fed. 891.

38. Still liable in civil action.—Texas,
etc., R. Co. v. Rigsby (U. S.), 36 S. Ct.
482, affirming on this point 222 Fed.
221; Great Northern R. Co. v. Otos,
239 U. S. 349, 36 S. Ct. 124. See also,
St. Louis, etc., R. Co. v. Conarty, 106
Ark. 421, 155 S. W. 93, reversed on
other grounds in 238 U. S. 243, 35 S.
Ct. 785.

“It is argued that the statute does
not apply except where the car is in

use in transportation at the time of the
injury to the employee, and that since
it does not appear that the car in ques-
tion was in bad order because of any
negligence on the part of the railway
company, and it was being taken to
the shop for repairs at the time of the
accident, there is no liability for inju-
ries to an employee who had notice
of its bad condition, and was engaged
in the very duty of taking it to the
shop. This is sufficiently answered by
our recent decision in Great Northern
R. Co. v. Otos, 239 U. S. 349, 351, 36°
S. Ct. 124, where it was pointed out
that although § 4 of the act of 1910 re-
lieves the carrier from the statutory
penalties while a car is being hauled
to the nearest available point for re-
pairs, it expressly provides that it shall
not be construed to relieve a carrier
from liability in a remedial action for
the death or injury of an employee
caused by or in connection with the
movement of a car with defective
eguipment.” Texas, etc, R. Co. wv.
Rigsby (U. S.), 36 S. Ct. 482, 485.
§§ 249-250 THE SAFETY APPLIANCE ACT. 522

of such car with equipment which is defective or insecure or which is not
maintained in accordance with the requirements of this act.” In Great
Northern R. Co. v. Otos, 239 U. S. 349, 36 S. Ct. 124, the court said:

“The supplementary act [1910] * * * relieves the carrier from the
statutory penalties while the car is being hauled to the nearest avail-
able point where it can be repaired, but expressly provides that it
shall not be construed to relieve from liability for injury to an em-
ployee in connection with the hauling of the car. The next section re-
cites that under § 4 the movement of a car with defective equipment
may be made within the limits there specified without incurring the
penalties, ‘but shall in all other respects be unlawful.’ Whether or
not the absolute liability created by the earlier act extended to the
present case, and we are far from implying that it did not, the act of
1910 imports, with unmistakable iteration, that the liability exists.”

§ 250. Retroactive Operation.—This section of the amendment has
no retroactive operation so as to relieve a railroad from a liability previously
incurred.2® In United States v. Colorado Mid. R. Co., 121 C. C. A. 194,
202 Fed. 732, the court said:

“It is an indisputable canon of construction that, unless the intention of
the legislative body that a law should operate retrospectively is clear, it
should not be given that effect. There is no provision or term in this
act which expresses any intention of the congress to release offenders
who prior to its passage had found and hauled cars with defective or
insecure equipment in the manner described in the proviso of § 4 from
the liabilities for penalties which they had admittedly incurred by such
acts under the earlier safety appliance acts. On the other hand, the
proviso of § 4, and the other provisions of the act of 1910 relating to
this subject, use expressions which either customarily or naturally refer
to the future. The proviso reads that a car whose proper equipment
has become defective or insecure ‘may be hauled’ to the nearest available
repair point without liability for the penalties imposed by the earlier
safety appliance acts and by that act. The act speaks at the time of its
passage. This provision means that after that time, after the passage
of the act, a car may be hauled without liability; and under the rule
that the expression of one excludes other like times or conditions, this
provision excludes the thought that at any previous time a car could
have been so hauled without liability for the penalties. There is noth-
ing in the act to indicate that it was the purpose of congress to release
offenders from liabilities already incurred. Its purpose appears to have
been to permit common carriers to avoid possible liabilities in the fu-
ture, and upon a consideration of its purpose, its terms, and its pro-
visions the conclusion is that the proviso of § 4 of the act of April 14,
1910, is inapplicable to violations of the safety appliance acts prior to
its passage, and that the act did not release offenders who had hauled
cars with defective or insecure equipment in the manner described in
the proviso of § 4 from liabilities for penalties incurred by such previous
violations of the earlier safety appliance acts.”

39. Retroactive operation.— United States v. Colorado Mid. R. Co., 121 C.
C. A. 194, 202 Fed. 732.
523 INSPECTION AND REPAIR. § 251

§ 251. Movements Embraced under Amendment.?°—In order to
come within this provision the car must have been properly equipped in the
first place and become defective or insecure while being used, and when a
car is defective before it started on a movement the railroad is not protected
thereby.41_ Thus where an engine and train were admittedly in perfect con-
dition as required by the statute when started, and the break occurred sud-
denly after going at least 300 miles, and there were no facilities for repairs
at the point where the break occurred, it was carried to the first and nearest
Tepair point for the purpose of repair, this was obviously such a case as the
amendment was intended to embrace.4?

The movement which is permitted is one for the purpose of making re-
pairs and when a defective car is moved for another purpose the proviso is
not applicable.42 And the defendant may move a car for the purpose of
repair when it cannot be otherwise repaired, it cannot defend on the ground
that such a defect existed, when the movement was made not for the pur-
pose of repair, but only in commercial service.*#

Cars Repairable Where Found Defective.—While § 4 of the act of
1910 permits a defective car to be hauled, without liability for the statutory
penalty, from the place where the defects are discovered to the nearest avail-
able point for making repairs, it distinctly excludes from this permission,
all cars which can be repaired at the place where they are found to be de-
fective.45 In United States v. Chesapeake, etc., R. Co., 130 C. C. A. 262,
213 Fed. 748, the court said:

from the T. S. yard, or became defec-
tive in the course of its journey from
that yard to the M. yard, charging
them that if the defect arose while the
car was in transit, the company would
not be liable. The jury accepted the

40. Movements embraced under
amendment.—As to necessity to plead
proviso, see post, ‘Pleading,’ Chap.
XL. As to sufficiency of proof, see
post, “To Sustain Defense,” § 283.

41. Chicago, etc, R. Co. uv. United

States, 127 C. C. A. 438, 211 Fed. 12,
reversed on other grounds in 237 U. S.
410, 35 S. Ct. 634; United States v.
Trinity, etc, R. Co., 128 C. C. A. 120,
211 Fed. 448.

The evidence tended to show that
the car was received by defendant
from another railroad; that before it
was received it was inspected and
found to be in proper condition, and
that the company first learned that
the coupling appliance was out of re-
pair after the car had been moved into
the M. yard. There was evidence,
however, on the part of the govern-
ment inspectors that they examined
the car while it was in the T. S. yard,
and found it in a defective condition;
that they accompanied it to the M.
yard, and there informed the company’s
employees of its defective condition,
who thereupon promptly supplied the
defective part. The trial court sub-
mitted to the jury the question whether
the car was defective when it started

testimony of the government inspec-
tors, and found that the car was de-
fective before it started upon the
movement complained of. It is quite
clear, therefore, that the company is
not protected by the proviso upon
which it relies. Chicago, etc., R. Co.
v. United States, 127 C. C. A. 438, 211
Fed. 12, reversed on other grounds in
35 S. Ct. 634.

42. Galveston, etc., R. Co. v. United
States, 118 C. C. A. 339, 199 Fed. 891.

438. Movement not to repair.—Chi-
cago, etc.,, R. Co. v. United States, 127
C. C. A. 438, 211 Fed. 12, reversed on
other grounds in 35 S. Ct. 634.

44. Chesapeake, etc., R. Co. v. United
States, 141 C. C. A. 439, 226 Fed. 683.

45. Cars repairable where found de-
fective——United States v. Erie R. Co., 237
U. S. 402, 59 L. Ed. 1019, 35 S. Ct. 621;
United States v. Chesapeake, ete, R.
Co., 130 C. C. A. 262, 213 Fed. 748;
Texas, etc, R. Co. wv Rigsby, 138 C.
C. A. 51, 222 Fed. 221; United States
§ 251 THE SAFETY APPLIANCE ACT. 524

“The requirement that a car with defective equipment may be hauled
from where such equipment is first discovered to be defective or inse-
cure ‘to the nearest available point where such car can be repaired’ was
evidently designed for the purpose of giving the railroad company suf-
ficient time within which to make such repairs as could only be made
at the shops of the company, or at a point where material and appli-
ances were kept for that purpose. * * * In other words, we think
the statute contemplates that if, when the defective equipment is dis-
covered, it can be repaired at the point where the discovery is first
made, then it is incumbent upon the railroad company to repair the
same as soon as the services of a repairman can be had; but, if the
defect is of such character that it cannot be repaired at the point where
discovered, such car may be hauled to the nearest available point for
that purpose, and not used in the meantime on its lines between stations
or in its yards.”

The amendment certainly cannot be construed to embrace a case where
a car is discovered to be defective in one yard and is thereafter switched
about with other cars in the yard, is moved to another yard and after 12
days returned to the yard where it was originally found defective and then
repaired.4® But the fact that repairs, which could be made at the point
where they were found necessary, could be more ecorfomically and con-
veniently made elsewhere would not excuse the failure to make them.47 In
United States v. Atchison, etc., R. Co. (D. C.), 220 Fed. 215, 217, the court
said :

“The sole question in the case, which is of importance because of the
principle rather than of the amount involved, is whether or not, upon
the discovery of an inhibited defect in the equipment of a car, the

v. Trinity, etc, R. Co, 128 C. C. A.
120, 211 Fed. 448; Chicago, etc., R. Co.
v. United States, 127 C. C. A. 438, 211
Fed. 12, reversed on other grounds in
35 S. Ct. 634.

The defect was of a character that
could have been supplied in the T. S.
yard. It consisted of a small clevis
which had fallen out of the coupling
appliance. This could have been sup-
plied as well in one yard as the other,
and a car can be moved for purposes
of repair under the proviso only when
such a movement is necessary; that is,
when the repair is of a character which
requires the taking of the car to some
particular point. Chicago, etc., R. Co.
v. United States, 127 C. C. A. 438, 211
Fed. 12, reversed on other grounds in
35 S. Ct. 634.

“The evidence in this case was with-
out conflict to the effect that the in-
jury to the defendant in error. a switch-
man employed by the plaintiff in error,
a common carrier engaged in inter-
state commerce by railroad, was due
to the defective condition of one of
the rungs or grabirons constituting the

ladder to the top of a box car which
at the time was standing on the plain-
tiff in error’s main line at Marshall,
Tex., while switching was going on
which was required to complete a
movement previously started of that
with other cars from another track in
the yard to the plaintiff in error’s re-
pair shop at that place. There was an
absence of evidence tending to prove
that the defect which caused the injury
could not as well have been repaired
or removed without making the move-
ment of the car which had been par-
tially executed when the injury oc-
curred. We are of opinion that the
evidence showed.a right of recovery in
the defendant in error, and that there
was no reversible error in any ruling
complained of.” Texas, etc., R. Co. wv.
Rigsby, 138 C. C. A. 51, 222 Fed. 221.

46. United States v. Chesapeake, etc.,
R. Co., 130 C. C. A. 262, 213 Fed. 748.

47. Convenience in making repairs
elsewhere.—United States v. Atchison,
etc., R. Co. (D. C.), 220 Fed. 215. See
also, ante, “Defects Developed in Tran-
sit,” § 247.
525 INSPECTION AND REPAIR? § 251

common carrier may haul the car in the usual and ordinary way from
the place where the defect is first discovered to the nearest place where
such repairs as are necessary, because of the existence of such defect,
are usually and ordinarily made, in spite of the fact that with but little,
if any, inconvenience or interference with the practical operation of
the carrier’s business, such repair could have been made upon the
ground, and without any necessity of moving the car or subjecting
employees of the carrier to risk of injury. Mr. Justice Moody, of the
United States Supreme Court, in construing the safety appliance act,
said: ‘There is no escape from the meaning of these words. Explana-
tion cannot clarify them, and ought not to be employed to confuse them
or lessen their significance. The obvious purpose of the legislature
was to supplant the qualified duty of the common law with an absolute
duty deemed by it more just.’ St. Louis, etc., R. Co. v. Taylor, 210 U.
S. 281, 52 L. Ed. 1061, 28 S. Ct. 616. It is apparent to me from a
careful reading of the safety appliance act, together with its amend-
ments, that congress intended that an ‘absolute’ duty was to be cast
upon common carriers operating the usual instrumentalities of inter-
state commerce; that such absolute duty required of such common car-
riers the doing of the certain precise definite things specified in the
statute; that the considerations impelling the requirement of these
things were those looking to human safety and the protection of the
lives of the thousands of employees engaged in and about the work in-
cident to the carrying on of interstate commerce. Under such cir-
cumstances this court feels that considerations of ‘convenience,’ ‘prac-
ticability,’ or ‘expediency’ should not be permitted to fritter away or
lessen the most commendable purpose of the act in question, and that
a defendant should not be permitted to claim the benefit of the remedial
amendment above referred to, unless such defendant clearly and in-
disputably brings itself within the purview thereof. If such be the
correct and rational interpretation of the entire act, then in order that
the movement of a car, such as is involved herein, can be justified, 1
must be shown by the carrier that such movement was necessary, i
order that the required repairs might be made, and that such Bae
could not be made except at the repair point to which the car was
moved. It will not suffice, in my judgment, to hold that the word ‘nec-
essary’ is the substantial equivalent of ‘convenient,’ or that it should be
qualified by the phrases ‘practicably’ or ‘economically ;’ so to hold
would be to place convenience, practicability, and economy above hu-
man life, and that this court will not do.”

Use of Chains.—When the couplers of cars are broken and in order to
move them a chain is necessary, they must be moved alone or with other
cars not in commercial use. If, however, the cars contain live stock or
perishable freight then the use of chains is permitted.*8

48. Use of chains.—United States v. Erie R. Co., 237 U. S. 402, 59 L. Ed.
1019, 35 S. Ct. 621.
CHAPTER XXXIV.

NEGLIGENCE.

. As Result of Violation, § 252.

. Persons Protected by Statute, § 253.
. Negligence of Fellow Servants, § 254.
. Proximate Cause of Injury, § 255.

Pw ne

§ 252. As Result of Violation.—Usually the master is only bound to
exercise ordinary care to provide suitable appliances and tools for the serv-
ant, and is liable for damages caused by defective machinery only where the
evidence shows that he neglected to repair the defect after having notice
thereof, or when by the exercise of ordinary care he would have known
that the same was defective; but where the statute requires the master to
furnish a particular safe appliance, and he violates that statutory duty, and
injury is caused thereby, the rule is different. In such event the violation of
the statutory duty from which the injury results makes out a prima facie
case of negligence, if not an absolute case.1 So if the railroad does use
cars which do not comply with the standard, it violates the plain prohibi-
tions of the law, and there arises from that violation the liability to make
compensation to one who is injured by it.?

In such cases the liability of the defendant does not grow out of the
common-law duty of master to servant. Congress, not satisfied with the
common-law duty and its resulting liability, has prescribed and defined the
duty by statute. The obvious purpose of which was to supplant the quali-
fied duty of the common law with an absolute duty, deemed by it more
just.2 The act does not merely make a rule of evidence for a negligence
case, but, even in the absence of any negligence, it causes or creates a lia-
bility which automatically and necessarily comes into existence by virtue of
the statute when the statutory conditions exist, and where, except for the
statute, there would be no such liability.5 Thus the failure to comply with
the requirements of the statute is negligence per se.6 Should the negligence

1. Common law duty—Supplanted.—
St. Louis, etc., R. Co. v. York, 92 Ark.
554, 123 S. W. 376.

2. St. Louis, etc., R. Co. v. Taylor,
210 U. S. 281, 52 L. Ed. 1061, 28 S. Ct.
616.

3. St. Louis, etc., R. Co. v. Taylor,
210 U. S. 281, 52 L. Ed. 1061, 28 S. Ct.
616. 7

4, Liability not necessarily one for
negligence.—Delk v. St. Louis, etc., R.
Co., 220 U. S. 580, 55 L. Ed. 590, 31 S.
Ct. 617.

5. Nichols v. Chesapeake, etc., R. Co.,
115 C. C. A. 601, 195 Fed. 913.

6. Negligence per se—United States.
—Texas, etc. R. Co. v. Rigsby (U. S.),
36 S. Ct. 482; San Antonio, etc., R. Co.
wv. Wagner (U. S.), 36 S. Ct. 626: Spo-
“kane, etc., R. Co. v. Campbell (U. S.),
36 S. Ct. 683; Smith v. Atlantic, etc.,
R. Co., 127 C. C. A. 311, 210 Fed. 761;
Grand Trunk,’ etc., R. Co. v. Lindsay,
120 C. C. A. 166, 201 Fed. 836, affirmed
in 34 S. Ct. 581; Chicago, etc., R. Co.
v. Voelker, 65 C. C. A. 226, 129 Fed.
522, 70 L. R. A. 264; Campbell v. Spo-

526
527

NEGLIGENCE.

§§ 252-253

of the railroad concur with that of a fellow servant it is liable.7

§ 253. Persons Protected by Statute.—When a statute is designed
to protect a particular class of persons against a particular class of injuries,
a violation of the statutory duty constitutes negligence per se, whenever
one of the protested class is injured from a cause against which the statute
was designed to protect him. But a person who is not within the class or
whose injury results from an evil against which the provisions of a statute
were not directed, cannot recover for a violation thereof, notwithstanding

it may have been the proximate cause of his injury.®

Thus where the de-

ceased was riding on the footboard of an engine and was killed due to its
collision with a car, the coupler and drawhead of which had been pulled out

kane, etc., R. Co. (C. C.), 188 Fed. 516.

Alabama.—Kansas, etc, R. Co. vw.
Flippo, 138 Ala. 487, 35 So. 457.

Delaware-—Winkler v. Philadelphia,
etc., R. Co., 4 Pennewill (Del.), 80, 53
Atl. 90; Philadelphia, etc., R. Co. v.
Winkler, 4 Pennewill (Del.) 387, 50
Atl. 112.

Indiana.—Grand Trunk, etc., R. Co.
v. Poole, 175 Ind. 567, 93 N. E. 26.

Kansas—Thornbro v. Kansas, etc., R.
Co., 91 Kan. 684, 139 Pac. 410, Ann.
Cas. 1915D, 314; S. C., 92 Kan. 681,
142 Pac. 250.

Louisiana.—Gordon v. New Orleans,
etc., R. Co., 135 La. 137, 64 So. 1014.

Minnesota—Smith v. Great North-
ern R. Co. (Minn.), 158 N. W. 46; La
Mere v. Railway Transfer Co., 125
Minn. 159, 145 N. W. 1068, Ann. Cas.
1915C, 667.

North Carolina. — Montgomery v.
Carolina, etc., R. Co., 163 N. C. 597,
60 S. E. 83.

Pennsylvania.—Moyer wv. Pennsylvania
R. Co., 247 Pa. 210, 93 Atl. 282.

South Carolina—Carson v. Southern
Railway, 68 S. C. 55, 46 S. E. 525, af-
firmed in 194 U. S. 136, 24 S. Ct. 609;
Steele v. Atlantic, etc. R. Co. (S. C.),
87 S. E. 639.

Texas.—Texas, etc., R. Co. v. Sherer
(Tex. Civ. App.), 183 S. W. 404; San
Antonio, etc. R. Co. v. Wagner (Tex.
Civ. App.), 166 S. W. 24, writ of error
denied in 170 S. W. xviii, no op., af-
firmed in 36 S. Ct. 626.

“Tt was negligence per se, for de-
fendant to use the car having the de-
fective coupler, even though the shov-
ing of the cars together was accidental.
St. Louis, etc, R. Co. v. Taylor, 210
U.S. 281, 52 L. Ed. 1061, 28 S. Ct. 616;
Chicago, etc., R. Co. v. United States,
220 U. S. 559, 55 L. Ed. 582, 31 S. Ct.
612.” Grand Trunk, etc, R. Co. v.
Lindsay, 120 C. C. A. 166, 201 Fed. 836,
affirmed in 34 S, Ct. 581.

“Tt is a well-established rule of law

that the violation of a statute by a
railroad company in the operation of
its road and trains constitutes an act
of negligence for which a liability be-
comes fixed upon the company when
injury to a person results as the proxi-
mate consequence of such negligence.”
Kansas, etc., R. Co. v. Flippo, 138 Ala.
487, 35 So. 457.

Where a railroad, by furnishing its
cars with automatic couplers, can,avoid
a brakeman the necessity of going be-
tween the cars, in a position of danger,
to couple them, and fails to do so, it
is liable to a brakeman injured while
between cars in an effort to couple
them, after he had ascertained by a
trial that the automatic couplers will
not work. Gordon v. New Orleans,
etc., R. Co., 135 La. 137, 64 So. 1014.

“Tf, at the time of the accident, the
defendant was using such a coupler,
which was prohibited by the act of
Congress, it was guilty of negligence
per se; and, if the injuries complained
of resulted from such unlawful use
alone, then the defendant would be
liable.” Philadelphia, etc., R. Co. v.
Winkler, 4 Pennewill (Del.) 387, 56
Atl 112.

7. Concurrent negligence.—See post,
“Negligence of Fellow Servants,” §
254.

8. Persons protected by statute.—
St. Louis, etc., R. Co. wv. Conarty, 238
U. S. 243, 59 L. Ed. 1290, 35 S. Ct. 785;
Campbell v. Spokane, etc. R. Co. (C.
C.), 188 Fed. 516.

“Waiving the question whether the
defendant violated the act by maintain-
ing drawbars on its different cars at
different heights, as between itself and
the government, the plaintiff in this
case has no ground of complaint, be-
cause he was not injured from the use
of the defective drawbars, but as the
result of a collision.” Campbell v.
Spokane, etc., R. Co. (C. C.), 188 Fed.
516, 518, affirmed in 217 Fed. 518.
§ 253 THE SAFETY APPLIANCE ACT. 528

in transit, and which was being placed at the time on an isolated track for
repair, but was left near the switch leading to that track while other cars
were being moved out of the way, he was not within the protection of the
statute. After reviewing the purpose of the provisions requiring automatic
couplers and drawbars of standard height, in St. Louis, etc., R. Co. v. Con-
arty, 238 U. S. 243, 59 L. Ed. 1290, 35 S. Ct. 785, the court said:

“Nothing in either provision gives any warrant for saying that they are
intended to provide a place of safety between colliding cars. On the
contrary, they affirmatively show that a principal purpose in their en-
actment was to obviate ‘the necessity for men going between the ends
of the cars.’ We are of opinion that the deceased, who was not en-
deavoring to couple or uncouple the car or to handle it in any way,
but was riding on the colliding engine, was not in a situation where
the absence of the prescribed coupler and drawbar operated as a breach
of a duty imposed for his benefit, and that the supreme court of the state
erred in concluding that the safety appliance acts required it to hold
otherwise.”

But where it was within the scope of a switchman’s duty to endeavor to
repair a coupler so that a train might be coupled together and proceed on its
way, he was within the statute while making such repairs, and was injured
by an attempt to shove the car to a repair point by order of the conductor.®
In Johnson v. Great Northern R. Co., 102 C. C. Bs 89, 178 Fed. 643, the
court said: bP 3

“Tt was contended * * * that plaintiff, in doing the work of repair-
ing a coupler, was not within the protection of the act, the coupler pro-
visions being designed only for those who are engaged in the work of
coupling and uncoupling cars. The court of appeals, in holding other-
wise, said: ‘But we find nothing in the statute that limits the classes
of persons to whom carriers shall be responsible for damages that re-
sult directly and immediately from its illegal doings.’ We think the
proper construction of the act is applicable to all servants of the carrier
who are injured while acting in the performance of their duty in and
about the operation of the cars, where the proximate cause of the in-
jury is the movement of a car in interstate commerce, with a defective
coupler.”

While § 4 of the act of March 2, 1893, requires “secure grabirons or hand-
holds in the ends and sides of each car for greater security to men in
coupling and uncoupling cars,” it cannot be contended that an employee in-
jured by a defective handhold on the roof of a car is not within the statute
when the action is based upon § 2 of the amendment of 1910, which de-
clares: “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

9. Same—Repairmen.—Chicago Junc- ern R. Co., 102 C. C. A. 89, 178 Fed.
tion R. Co. v. King, 94 C. C. A. 652, 643.
169 Fed. 372; Johnson v. Great North-
529 NEGLIGENCE. § 253

all cars having ladders shall also be equipped with secure handhold or grab-
irons on their roofs at the tops of such ladders.” There can be no question
that a box car having a hand brake operated from the roof requires also a
secure ladder to enable the employee to safely ascend and descend, and that
the provision quoted was intended for the especial protection of employees
engaged in duties such as that which plaintiff was performing.?°

From the fact that an engineer violated the orders given him respecting
the running of his train, it cannot be contended that he is precluded from
claiming the benefits of the act requiring the equipment of engines with
power brakes. The argument that the purpose of this provision was to
place control of the train in his hands for the safety of employees and pas-
sengers but not to permit him to escape injury from a peril to which he had
wrongfully exposed himself, is too narrow a meaning of the act.1!

It has been contended that the act did not give rise to a cause of action for
the negligence when death resulted but only in case of injuries. But this
was denied on the ground that the purpose was as much to preserve life as
limb.12 This is gonfirmed by the amendment of 1910 in § 4, where after
permitting a movement of defective cars when necessary to repair it is pro-
vided further “nothing in this section shall be construed to relieve such
carrier from liability in any remedial action for the death or injury of any
railroad employee,” etc.

The plaintiff need not be engaged in interstate commerce to come within
the protection of this act.18 Because it is to be noted that though an ac-
tion under the liability act is only maintainable when both the plaintiff and
the defendant are engaged in interstate commerce but this does not prevent
an employee when he is injured, though not engaged in interstate com-
merce, from relying upon any federal act such as the Safety Appliance Act,
the Hours of Service Act or the Boiler Inspection Act as negligence.
Though the violation of these last acts is given especial effect when the Em-
ployers’ Liability Act is available, still in actions under a state law the
higher degree of duty imposed by the other federal acts is available to the
plaintiff if the railroad is one engaged in interstate commerce regardless of
his employment.1* In Texas, etc., R. Co. v. Rigsby (U. $.), 36 S. Ct. 482,
484, the court said:

“That the scope of the legislation is broad enough to include all employees
thus injured, irrespective of the character of the commerce in which
they are engaged, is plain. The title of the act, repeated in that of
each supplement, is general: ‘An act to promote the safety of em-
ployees and travelers,’ etc.; and in the proviso to § 4 of the supplement

10. Protection to employee not coup- bile, etc., R. Co. 7. Bromberg, 141 Ala.
ling cars.—Texas, etc., R. Co. v. Rigsby 258, 37 So. 395.
(U. S.), 36 S. Ct. 482, 483. . _ 13. Necessity of plaintiff's engaging
11. Employee acting in violation of in interstate commerce.—Texas, etc.,
orders.—Spokane, etc., R. Co. v. Camp- R. Co. v. Rigsby (U. S.), 36 S. Ct. 482.
bell (U. S.), 36. S. Ct. 683. 14. See Trowbridge v. Kansas, etc.,
12. Recovery in case of death—Mo- R. Co. (Mo. App.), 179 S. W. 777.

Fed Act—34
§§ 253-254 THE SAFETY APPLIANCE ACT. 530
of 1910'there is a-reservation as to ‘liability in any remedial action
for the death or injury of:any railroad employee.’ None of the acts,
indeed, contains express language conferring a right of action for the
death or injury of an employee; but the safety of employees and trav-
elers is their principal object, and the right of private action by an in-
jured employee, even without the Employers’ Liability Act, had never
been doubted. * * * A disregard of the command of the statute is
a wrongful act, and where it results in damage to one of the class for
whose especial benefit the statute was enacted, the right to recover the
damages from the party in default is implied, according to a doctrine
of the common law expressed in 1 Comyn’s Dig. title, ‘Action upon
Statute’ (F), in these words: ‘So, in every case, where statute en-
acts or prohibits a thing for the benefit of a person, he shall have a
remedy upon the same statute for the thing enacted for his advantage,
or for the recompense of a wrong done to him contrary to the said law.’
(Per Holt, Ch. J., Anonymous, 6 Mod. 26, 27.) This is but an appli-
cation of the maxim, Ubi jus ibi remedium. See 3 BI. Com. 51, 123;
Couch wv. Steel, 3 El. & BI. 402, 411, 23 L. J. Q. B. N.S. 121, 125,2C. L.
R. 940, 18 Jur. 515, 2 Week. Rep. 170. The inference of a private
right of action in the present instance is rendered irresistible by the
provision of § 8 of the act of 1893 that an employee injured by any
car, etc., in use contrary to the act, shall not be deemed to have assumed
the risk, and by the language above cited from the proviso in § 4 of the
1910 act.” ¥

§ 254. Negligence of Fellow Servants.—The fellow servant rule
must be considered as abolished by the act, when its foundation, assumption
of risk, was declared not to be a defense. However, when the railroad has
failed to comply with the act it is guilty of negligence and though the re-
sulting injury be due to an act of a fellow servant it is concurrent with the
negligence of the railroad and for this concurrent negligence the master is

liable even at common law.15 In Southern Pac. Co. v. Allen, 48 Tex. Civ.
App. 66, 106 5. W. 441, the court said:

“Tf, then, the cars were not sufficiently equipped with automatic couplers
in accordance with the act-of congress, as was found by the jury, it is
a logical sequence that plaintiff’s injury, though caused by the negli-
gence of a fellow servant, was from a risk which, as a matter of law,
he did not assume. * * * The purpose of the safety appliance
act is to relieve the employee of the danger of going between the ends
of cars to couple or uncouple them. If they are not moving when he

15. Chicago Junction R. Co. v. King,
94 C. C. A. 652, 169 Fed. 372; Neal v.
St. Louis, etc., R. Co., 71 Ark. 445, 78
S. W. 220, 2nd Appeal 98 S. W. 958,
reversed on other grounds in 28 S. Ct.
616.

The duty imposed by the statute be-
ing absolute and nondelegable, an ac-
tion for personal injuries can not be
defeated upon the ground that it was
caused by the negligence of a fellow
servant. In the instant case the plain-
tiff attempted to repair a car where it

stood without the knowledge of the
conductor of ithe train who ordered
them to be moved, which was done at
a time when the plaintiff had arrived
to repair them. The court holding that
the act of the conductor was that of
the defendant and that the negligence
of the engineer (if it was such), would
be merely concurrent negligence which
would not relieve the defendant from
liability. Chicago Junction R. Co. vw.
King, 94 C. C. A. 652, 169 Fed. 372.
531 NEGLIGENCE. §§ 254-255
goes between them, nor moved while he is there, no danger is incurred
by him. The danger is from their movement, which is necessary to
couple them by impact and ofttimes required to uncouple them. It is
always an employee other than the one who is between the cars who
moves them. If, in doing so, he is negligent, and such negligence re-
lieves his employer from his negligence in failing to comply with the
act of Congress, and visits the consequence of the negligence of both
upon the employee whom the act was intended to protect, then such
legislation is as worthless as ‘the stuff that dreams are made of.’ See
Schlemmer v. Buffalo, etc., R. Co., 205 U. S. 1, 51 L. Ed. 681, 27 S. Ct.
407. Even at common law, where the harsh fellow-servant doctrine
applies with undiminished rigor, the concurrence of a servant’s neg-
ligence in causing an injury to another servant does not absolve the
master from his liability for its consequences. In this case the most
that can be said of the negligence of plaintiff's fellow servants is that
it simply concurred with that of the defendant in causing the injury to
plaintiff.”

§ 255. Proximate Cause of Injury.—Where the failure of the de-
fendant railroad company to comply with the act is not the sole, 1° or proxi-
mate cause of the injury or death, it is not liable.17 Except in cases when
the violation of the act and the negligence of an employee, are the proximate
concurrent cause of an injury to the employee, in actions under the Federal
Employers’ Liability Act, the effect is to abolish the doctrine of proximate
cause, as far as the negligence of the employee is concerned.18

It is generally held that, in order to warrant a finding that negligence is
the proximate cause of an injury, it must appear that the injury was the
natural and probable consequence of the negligence or wrongful act, and
that it ought to have been foreseen in the light of the attending circum-
stances.19 Thus a brakeman going between cars to uncouple them but
injured by his foot getting caught in an unblocked frog, is the natural and
probable consequence of failing to provide automatic couplers, which would
enable the brakeman to uncouple the cars without going between them.
When he, in the performance of his duties, went between them, in order to

19. Evidence held to show violation

16. Proximate cause of injury.— : :
proximate cause.—E\vidence that when

Winkler v. Philadelphia, etc, R. Co.,

4 Pennewill (Del.) 80, 53 Atl. 90.

17. United States—Clark v. Erie R.
Co. (D. C.), 230 Fed. 478, 481.

Illinois —Devine wv. Chicago, etc. R.
Co., 259 Ill. 449, 102 N. E. 803.

Iowa.—Dodge v. Chicago, etc., R. Co.,
164 Iowa 627, 146 N. W. 14.

South Carolina—Lyon v. Charleston,
etc., Railway, 77 S. C. 328, 58 S. E. 12.

exas.—St. Louis, etc, R. Co. vu.

Wilkes (Tex. Civ. App.), 159 S. W.
126, writ of error granted in 161 S.
W. xvi, no op.

18. When abolished.—Spokane, etc.,
R. Co. v. Campbell (U. S.), 36 S. Ct.
683

the brakes are set on the engine in an
emergency a much harder shock or
jerk is given than when the air brakes
are in operation on the cars, and there
is a recoil or rebound; but if there was
an emergency stop, and the air was in
operation, the train would have been
under the engineer’s direct control, was
sufficient to justify the finding of the
jury that the failure to have the air
brakes in operation was the proximate
cause of the plaintiff’s injury resulting
from his being thrown from a ladder
on the side of car by the stopping of
the train. La Mere v. Railway Trans-
fer Co., 125 Minn. 159, 145 N. W. 1068,
Ann. Cas. 1915C, 667.
§ 255 THE SAFETY APPLIANCE ACT. 532

uncouple them, and his death resulted from his failure to extricate himself
from the dangerous position; it matters not whether an unblocked frog, a
hole, or rock, or some other obstruction, caused him to fall. The default
was in the company failing to equip itself with appliances that would en-
able him to uncouple the cars without going between them.2® So, too, a
defective coupler is the proximate cause of an injury received by a brake-
man between cars, though they were brought together by the negligence of
the company in kicking other cars against them.?!

On the other hand the negligence of the defendant in not having the
power brakes in operation on an engine would not make it liable, where an
engineer was run over by an engine but his presence was not known until
he was struck so that the use of the brakes would not have operated to
prevent his injury as he was not seen.?? And where an employee was in-
jured by a derailment of a locomotive claimed to have been caused by a
piece of chain on the track which had been at some time used to replace a
defective coupler but just prior to the accident was simply tied to the end
of a bad order car when moved for repair, such defect in no way entered
into the situation, other than because of it the car was brought in for re-
pairs. No use was made of the defective coupling as a means of attaching
it to the train. It was on the rear end of the car, which was at the end of
the train. The chain served no purpose but was merely fastened at its
rear, as a convenient means of caring for it. The chain itself was not a
defective appliance, but was a means only, when in use, to cover emergen-
cies arising from defects in other parts. The accident did not result from
any causal connection with the defective condition of the car, but from a
cause which was unrelated to it, excepting that the chain had previously
been used to couple that car to another one, but which at the time of the
movement of the car was not so used.?8

While the general rule is that the question of proximate cause of an in-
jury is one of fact for the jury, and should be submitted where different
conclusions could be drawn, 24 still, where there is no dispute as to the

20. Same—Catching foot in unblocked
frog.—York v. St. Louis, etc. R. Co.,
86 Ark. 244, 110 S. W. 803; St. Louis,
etc, R. Co. v. York, 92 Ark. 554, 123
S. W. 376.

21. Same—Negligence in moving
other cars.—Voelker v. Chicago, etc.,
R. Co. (C. C.), 116 Fed. 867, reversed
on other grounds in 65 C. C. A. 226,
129 Fed. 522, 70 L. R. A. 264.

22. Evidence held not to show vio-
lation proximate cause.—Huxoll v.
Union Pac. R. Co. (Neb.), 155 N. W.
900.

23. Same—Chain used to haul defec-
tive cars, but not in use at time.—
Dodge v. Chicago, etc, R. Co., 164
Towa 627, 146 N. W. 14.

24. Question of law or fact.—Done-
gan v. Baltimore, etc., R. Co., 91 C. C.
A. 555, 165 Fed. 869; Erie R. Co. v.
Russell, 106 C. C. A. 160, 183 Fed. 722;
Southern R. Co. v. Simmons, 105 Va.
651, 55 S. E. 459.

“The question of proximate cause
was one of fact for the jury. It was
so held in the circuit court of appeals
in the second circuit, in Donegan wv.
Baltimore, etc., R. Co., 91 C. C. A. 555,
165 Fed. 869, a case quite similar to
this, where a brakeman stepped be-
tween moving cars to uncouple them
because the automatic coupler was
broken. In starting back his foot was
caught in an unblocked frog, and he
was thereby pulled down and injured.
The court held upon the question of
533

NEGLIGENCE.

§ 255

facts and they are such that all reasonable minds must reach the same
conclusion in regard thereto, it may become a question of law to de-
termine whether a given injury is the proximate result-of a given cause.?®

proximate cause: ‘It is true that the
direct instrumentality by which the
plaintiff was injured was the frog. It
was the immediate, but not necessarily
the proximate, cause. It was for the
jury to determine whether the failure
of the defendant to equip the cars with
the appliances required by the statute
was, in view of all the facts and cir-
cumstances, a proximate cause of the
accident. Had the car been properly
equipped, there would have been no oc-
casion for the plaintiff to go into a
place of danger. We can not say that
the jury would not have been war-
ranted in finding that the accident
would never have occurred had the car
been equipped with the statutory ap-
pliances, and consequently that the
failure to have such appliances was a
proximate cause of the plaintiff's in-
juries.” The circuit court had ruled
in that case that the violation of the
safety appliance act was not a proxi-
mate cause of the accident, and the
court of appeals ordered a new trial
for that error. Held, upon competent
evidence and pertinent instructions, the

jury found that the defective appli-
ance was the proximate cause, and the
district court approved the finding.”
Thornbro v. Kansas, etc., R. Co., 91
Kan. 684, 139 Pac. 410, Ann. Cas. 1915D,
314.

25. Devine v. Chicago, etc., R. Co.,
259 Ill. 449, 102 N. E. 803.

Instruction held not to take question
from jury—But an instruction that
“Negligence may be the proximate
cause of an injury of which it is not
the sole or immediate cause. If you
find from the evidence that defendant
was negligent in either particular al-
leged in the complaint, and that said
negligence in that particular concurred
with some other cause or causes in
bringing about and causing plaintiff’s
injury, the defendant’s said negligence
would be a proximate cause within the
meaning of that term as used in these
instructions,” does not deny the jury’s
right to determine the proximate
cause of plaintiff's injury. Grand
Trunk, etc., R. Co. v. Poole, 175 Ind.
567, 93 N. E. 26.
CHAPTER XXXV.

ASSUMPTION OF RISK.

1. Abolished under Statute, § 256.
2. Object in Abolishing Defense, § 257.
3. Assumption of Risk and Contributory Negligence Distinguished, § 258.

§ 256. Abolished under Statute.—Prior to the time when the act of
congress became fully operative, the employees of a railroad company sub-
ject to its provisions, engaged in coupling cars used in moving interstate
traffic, but not equipped with automatic couplers, assumed the ordinary risks
and hazards of that employment, and the company was not liable to them
for injuries resulting therefrom. The common-law doctrine of assump-
tion of risk was then applicable. But a new rule is prescribed by the act.
It specifically provides in § 8 “That any employee of any such common
carrier who may be injured by any locomotive, car, or train in use contrary
to the provision of this act shall not be deemed thereby to have assumed
the risk thereby occasioned, although continuing in the employment of such
carrier after the unlawful use of such locomotive, car, or train had been
brought to his knowledge.” 4

The act abrogates the common law pro tanto, and imposes a liability on
the carrier different from that imposed by the common law. The latter
gives the employee a right of action for an injury resulting from an act ex-
posing him to a danger which he did not assume in entering the carrier’s
service; but the statute deprives the carrier of the protection and defense
of the risk assumed by the employee, which it had at common law, when the
injury resulted from the knowledge of the employee of the danger.?

1. Abolished under statute—Act vw. St. Louis, etc., R. Co. 71 Ark. 445,

March 2, 1893, c. 196, § 8, 27 Stat. L.
531.

As to operation in cases under the
liability act, see. ante, ‘‘Assumption of
Risk,” Chap. XI.

2. United States—Schlemmer v. Buf-
falo, etc. R. Co. 220 U. S. 590, 55 L,.
Ed. 596, 31 S. Ct. 561; Denver, etc., R.
Co. v. Arrighi, 63 C. C. A. 649, 129
Fed. 347; Norfolk, etc., R. Co. v. Ha-
zelrigg, 107 C. C. A. 66, 184 Fed. 828;
Grand Trunk, etc, R. Co. wv. Lindsay,
120 C. C. A. 166, 201 Fed. 836, affirmed
in 34 S. Ct. 581; Clark v. Erie R. Co.
(D. C.), 230 Fed. 478.

Alabama.—Mobile, etc, R. Co. wv.
Bromberg, 141 Ala. 258, 37 So. 395;
Kansas, etc., R. ‘Co. v. Flippo, 138 Ala.
487, 35 So. 457.

Arkansas.—Y ork v. St. Louis, ete., R.
Co., 86 Ark. 244, 110 S. W. 803; Neal

78 S. W. 220, (2nd App. 98 S. W. 958,
reversed in 28 S. Ct. 616, on other
grounds.)

Delaware.—Philadelphia, etc., R. Co.
v. Winkler, 4 Pennewill (Del.) 387, 56
Atl. 112.

Illinois—Luken v. Lake Shore, etc.,
R. Co., 248 Ill. 377, 94 N. E. 175, 21
Am. & Eng. Ann. Cas. 82, affirming
154 Ill, App. 530; Daly vw. Illinois
Cent. R. Co., 170 Ill. App. 185; Lucas
v. Peoria, ete. R. Co. 171 Ill. App. 1.

Pennsylvania—Allen v. Tuscarora,
etc. R. Co., 229 Pa. 97, 78 Atl. 34, 30
L. R. A, N.S. 1096.

Texas—Southern Pac. Co. v. Allen,
48 Tex. Civ. App. 66, 106 S. W. 441;
Missouri, etc., R. Co. v. Barrington
(Tex. Civ. App.), 173 S. W. 595.

“The statute of congress expressly
provides that the employee shall not

534
530

ASSUMPTION OF RISK.

§ 256

Facts which show assumption of risk are not available to the railroad

though called contributory negligence.

Because if, in cases where the same

facts which would make out the defense of assumed risk (were such de-
fense not abolished) could also constitute the defense of contributory neg-
ligence, the latter defense should be allowed to prevail, the humane and
beneficent purpose of congress would in a large number of cases be ren-

dered abortive.

Therefore, as a statute should be so construed as to ac-

complish its evident intention and purpose; the act, in abolishing the de-
fense of assumed risk, did away with any other defense, though of a dif-
ferent name, which would be constituted by identically the same facts
which go to establish that of assumed risk.*

be deemed to have assumed the risk
of injury if such is occasioned by his
continuing in the employ of the carrier
after the unlawful use of the car or
train in the failure to provide auto-
matic couplers has been brotight to his
knowledge. Therefore, when Schlem-
mer saw that the shovel car was not
equipped with an automatic coupler, he
would not, from that knowledge alone,
take upon himself the risk of injury
without liability from his employer.”
Schlemmer v. Buffalo, etc., R. Co., 220
U. S. 590, 55 L. Ed. 596, 31 S. Ct. 561.

“Of course, the employee’s knowl-
edge of the defect does not bar his
suit, for by § 8 of the act of 1893 an
employee injured by any car in use
contrary to the provisions of the act
is not to be deemed to have assumed
the risk, although continuing in the
employment of the carrier after the un-
lawful use of the car has been brought
to his knowledge.” Texas, etc., R. Co.
v. Rigsby (U. S.), 36 S. Ct. 482, 486.

The act of the carrier in failing to
equip its cars with automatic couplers
is declared to be unlawful, and is for-
bidden under the penalty, imposed by
§ 8, that the employee if injured shall
not be deemed to have assumed the
risk of his employment. Allen z. Tus-
carora, etc., R. Co., 229 Pa. 97, 78 Atl.
34, 30 L. R. A, N. 5S., 1096.

“The law manifestly contemplates
that the car shall be so equipped that
the coupling shall actually be made au-
tomatically, and, if not so equipped, the
plaintiff did not assume the risk aris-
ing therefrom, even though he contin-
ued in the employment of the company
after such unlawful use of the cars had
come to his knowledge.” Philadelphia,
ete. R. Co. v. Winkler, 4 Pennewill
(Del.) 387, 56 Atl. 112.

“Tf it be conceded that appellee knew
the handhold which gave way and
caused him to fall, was defective, he
did not assume the risk of using it.
There is no pretense that he produced

the defective condition of the hand-
hold, and it seems that in no other
event would the defense of assumed
risk be available to appellant.” Mis-
souri, etc., R. Co. v. Plemmons (Tex.
Civ. App.), 171 S. W. 259, 263.

“The fact that plaintiff acquired
knowledge of the defective condition
of the coupler at Paris, Tenn., and
never reported its condition to the con-
ductor, and with knowledge of its con-
diton went in between the cars on the
occasion in question, in no way affects
defendant’s liability. While he might
with propriety have informed the con-
ductor, yet he was under no legal ob-
ligation to inform him of that which
the statute required him to know. His
knowledge of the unworkable condi-
tion of the coupler has a bearing on
no other phase of the case than that of
assumed risk and contributory negli-
gence. By the express terms of the
Federal Employers’ Liability Act these
two defenses are eliminated where a
violation of a statute enacted for the
safety of employees contributes to the
injury.” Nashville, etc, Railway v.
Henry, 158 Ky. 88, 164 S. W. 310, 313.

3. Not to be called contributory
negligence.—Schlemmer v. Buffalo, etc.,
R. Co., 205 U. S. 1, 51 L. Ed. 681, 27
S. Ct. 407, reversing 56 Atl. 417, 207 Pa.
198; Chicago Junction R. Co. v. King,
94 C. C. A. 652, 169 Fed. 372: South-
ern Pac. Co. v7. Allen, 48 Tex. Civ. App.
66, 106 S. W. 441.

“When a statute exonerates a serv-
ant from the former [assumption of
risk], if at the same time it leaves the
defense of contributory negligence
still open to the master (a matter upon
which we express no opinion), then,
unless great care be taken, the servant’s
rights will be sacrificed by simply
charging him with assumption of the
risk under another name.” Schlem-
mer v. Buffalo, etc., R. Co., 205 U. S.
1,51 L. Ed. 681, 27 S. Ct. 407.
§§ 256-257 THE SAFETY APPLIANCE ACT. 536

The Supreme Court of the United States in Schlemmer v. Buffalo, etc.,
R. Co.,4 held that it was error to direct a verdict of nonsuit on the ground
of contributory negligence, when the facts possibly only showed assumption
of risk which would not justify such verdict, as an employee who went be-
tween cars, due to the fact that one of them was not equipped with an
automatic coupler, and was injured, could not be held to have been guilty
of contributory negligence, as a matter of law, by reason of the fact that
after going between the cars he was warned by the conductor to keep his
head low but he was not in such a position as to know when it was low
enough to avoid the danger. On a second appeal, however other facts were
shown upon which the court held that he was guilty of contributory negli-
gence precluding recovery.®

Even though an employee is to be deemed to assume the risk necessary
to the isolation of defective cars, yet plaintiff’s knowledge of such defect
must be shown and that the car was being moved in order to isolate it. This
is not sufficiently shown by evidence that the track upon which the car was
standing was one sometimes used to place bad order cars upon, when there
was a regular hospital track in the yard, and that cars coming in were in-
spected and if defective were marked and the car by which he was injured
was not so marked.®

§ 257. Object in Abolishing Defense.—To make the statutory re-
quirements effective, otherwise than by the penalties imposed, it was further
provided that, should the company be in default in obeying the act, the
employee would not be held to have assumed the risk, if he continued to
perform his duties. If this provision had not been added, the act would
have been wholly nugatory, for the employee would assume the risk when-
ever the company failed to equip itself as required by the act. This pro-
vision relieves the employee of the assumption of the risk so long as he is
performing the duty required of him; but this will not relieve him of neg-
ligence in contributing to the injury, nor permit him to unnecessarily pro-
long his stay between the cars. In other words, the act permits no alliance
with danger, but does permit him, without assuming the risk when the com-
pany is in default, to couple or uncouple cars by going between them, and
an injury received while in the performance of this duty, either in the act
of doing it or extricating himself, would be primarily due to the failure of
the company to equip itself with automatic couplers, thus rendering neces-
sary the presence of an employee between moving cars.7

4. 205 U. S. 1, 51 L. Ed. 681, 27 S.
Ct. 407. See post, 114.

5. Schlemmer v. Buffalo, etc., R. Co.,
205 U. S. 1, 51 L. Ed. 681, 27 S. Ct.
407. See post, 114.

6. In isolating cars for repair—
Knowledge of defect—Chicago, etc.,

R. Co. v. Voelker, 65 C. C. A. 226, 129
Fed. 522, 70 L. R. A. 264, reversing 116
Fed. 867.

7. Object in abolishing defense.—
York v. St. Louis, etc., R. Co., 86 Ark.
244, 110 S. W. 803.
537 ASSUMPTION OF RISK. § 258

§ 258. Assumption of Risk and Contributory Negligence Distin-
guished.—Assumption of risk sometimes shades into negligence as com-
monly understood, there is, nevertheless, a practical and clear distinction
between the two. In the absence of statute taking away the defense, or such
obvious dangers that no ordinarily prudent person would incur them, an
employee is held to assume the risk of the ordinary dangers of the occupa-
tion into which he is about to enter, and also those risks and dangers which
are known, or are so plainly observable that the employee may be presumed
to know of them, and if he continues in the master’s employ without objec-
tion, he takes upon himself the risk of injury from such defects. Contribu-
tory negligence, on the other hand, is the omission of the employee to use
those precautions for his own safety which ordinary prudence requires.®
In the case of Narramore v. Cleveland, etc., R. Co., 37 C. C. A. 499, 96 Fed.
298, 48 L. R. A. 68, Circuit Judge Taft expressed the principle as follows:

“Assumption of risk and contributory negligence approximate when the
danger is so obvious and imminent that no ordinarily prudent man would
assume the risk of injury therefrom. But where the danger, though
present and appreciated, is one which many men are in the habit of
assuming, and which prudent men who must earn a living are willing
to assume for extra compensation, one who assumes the risk cannot be
said to be guilty of contributory negligence if, having in view the risk
of danger assumed, he uses care reasonably commensurate with the
risk to avoid injurious consequences.”

Thus where a switchman confronted with a situation in which there exists
a practical necessity, to uncotiple the cars by some means other than a de-
fective lever, what is done is assumption of risk. Putting his arm between
the cars, under such circumstances, and traveling with them, is not per se
contributory negligence. If there be contributory negligence at all, it de-
pends, not upon his assuming the risk under the circumstances disclosed,
but upon the degree of care with which he acts while in the performance
of the work under the assumed risk.®

8. Assumption of risk and contrib-
utory negligence distinguished. —
Schlemmer v. Buffalo, etc., R. Co., 220
U. S. 590, 55 L. Ed. 596, 31.5. Ct. 561.
See also, ante, “Distinguished from
‘ Contributory Negligence,” § 68.

“Negligence consists in conduct
which common experience or the spe-
cial knowledge of the actor shows to
be so likely to produce the result com-
plained of, under the circumstances
known to the actor, that he is held
answerable for that result, although it
was not certain, intended, or foreseen.
He is held to assume the risk upon the
same ground. Choctaw, etc., R. Co.
v. McDade, 191 U. S. 64, 48 L. Ed. 96,
24 S. Ct. 24. Apart from the notion

of contract, rather shadowy as applied
to this broad form of the latter con-
ception, the practical difference of the
two ideas is in the degree of their
proximity to the particular harm. The
preliminary conduct of getting into the
dangerous employment or relation is
said to be accompanied by assumption
of the risk. The act more immediately
leading to a specific accident is called
negligent. But the difference between
the two is one of degree rather than
of kind.” Schlemmer v. Buffalo, etc.,
R. Co., 205 U. S. 1, 51 L. Ed. 681, 27
S. Ct. 407.

9. Chicago, etc. R. Co. v. Brown,
107 C. C. A. 300, 185 Fed. 80, affirmed
in 229 U. S. 317, 33 S. Ct. 840.
CHAPTER XXXVI.

CoNTRIBUTORY NEGLIGENCE.

1. Available under Statute, § 259.

2. Care Required of Employee, § 260.
3. Failure to Use Appliances, § 261.

4, Failure to Use Safer Method, § 262.
5. Failure to Observe Rules, § 263.

§ 259. Available under Statute.—Though the act abolishes the doc-
trine of assumption of risk, the railroad company is not thereby deprived

of the defense of contributory negligence.1

In Minneapolis, etc., R. Co. v.

Popplar, 237 U. S. 369, 59 L. Ed. 1000, 35 S. Ct. 609, 610, the court said:

“Tt did not preclude the defense of contributory negligence, as distin-
guished from that of assumption of risk. As this court has said: ‘The
defense of contributory negligence was not dealt with by the statute.’
Schlemmer wv. Buffalo, etc., R. Co., 220 U. S. 590, 55 L. Ed. 596, 31

S; Gt. S61;

Whether the rule of the company applied in such an

emergency as that in which the decedent found himself,—whether he
was guilty of contributory negligence as matter of law, or could be ex-
cused upon the ground that in an exceptional situation he acted with
reasonable care, were questions which the federal act left untouched.

1. Available under statute.—Uniied
States—Schlemmer v. Buffalo, etc., R.
Co., 220 U. S. 590, 55 L. Ed. 596, 31
S. Ct. 561; San Antonio, etc., R. Co. v.
Wagner (U. S.), 36 S. Ct. 626; Cleve-
land, etc., R. Co. v. Baker, 33 C. C.
A. 468, 91 Fed. 224, 63 U. S. App: 553;
Denver, etc. R. Co. v. Arrighi, 63 C.
C. A. 649, 129 Fed. 347; Chicago Junc-
tion R. Co. uv. King, 94 C. C. A. 652,
169 Fed. 372; Southern R. Co. v. Sny-
der, 124 C. C. A. 60, 205 Fed. 868;
Clark v. Erie R. Co. (D. C.), 230 Fed.
478.

Delaware—Winkler v. Philadelphia,
etc, R. Co., 4 Pennewill (Del.) 80,
53 Atl. 90.

Kansas.—Atchison, etc., R. Co. v. Ru-
dolph, 78 Kan. 695, 99 Pac. 224.

Minnesota—Popplar 7. Minneapolis,
etc, R. Co., 121 Minn. 413, 141 N. W.
798, Ann. Cas. 1914D, 383, affirmed 35
S. Ct. 609.

Texas.——Southern Pac. Co. v. Allen,
48 Tex. Civ. App. 66, 106 S. W. 441.

“Though the statute under which
this action is brought provides that
an employee injured by any locomo-
tive, car, or train in use contrary to
its provisions shall not be deemed
thereby to have assumed the risk

538

thereby occasioned, it does not assume
to affect the defense of contributory
negligence, but seemingly leaves it un-
disturbed as it exists at common law.”
Southern Pac. Co. v. Allen, 48 Tex.
Civ. App. 66, 106 S. W. 441, 445.

“The safety appliance act permits
the defense of contributory negligence.
The Employers’ Liability Act of April
22, 1908 (35 Stat. 65, c. 149 [U. S.
Comp. St. Supp. 1911, p. 1322]),
amends the safety appliance act so as
to abolish this defense when the em-
ployee is engaged in interstate com-
merce; but this is not such a case.”
Popplar 7. Minneapolis, etc., R. Co.,
121 Minn. 413, 141 N. W. 798, 799,
Ann. Cas. 1914D, 383, affirmed 35 S.
Ct. 609.

“The defense of contributory negli-
gence is material here because the
safety appliance statutes do not take
away contributory negligence as a
complete defense; and the accident hav-
ing occurred before the passage of the
second Employers’ Liability Act, the
present case is not affected by the pro-
vision of that act which makes con-
tributory negligence operate only in
reduction of damages.” Southern R.
Co. v. Snyder, 124 C. C. A. 60, 205
Fed. 868, 871.
539 CONTRIBUTORY NEGLIGENCE.

§ 259

The action fell within the familiar category of cases involving the duty
of a master to his servant. This duty is defined by the common law,
except as it may be modified by legislation. The federal statute, in the
present case, touched the duty of the master at a single point, and, save
as provided in the statute, the right of the plaintiff to recover was left
to be determined by the law of the state.”

Except in cases brought under the Federal Employers’ Liability Act,?
it remains as at common law; and the risks and dangers of an employment
which at common law are assumed by the employee are not those which
arise from the negligence of either party. And when the burden of those
assumed risks and dangers were lifted from the employee by statutory en-
actment, and cast upon the railroad company, there was not transferred
therewith a responsibility for the negligence of the employee himself. The
rationale of the doctrine of assumption of risk is not that which supports
the rule of contributory negligence. They operate differently, and are de-
pendent upon widely different principles.*

It cannot be assumed that by the passage of a salutary law designed for
the protection of those engaged in a hazardous occupation congress intended
to offer a premium for carelessness, or to grant immunity from the conse-
quences of negligence. The reasonable conclusion is that the defense of
contributory negligence is as available to a railroad company after as before
the passage of the act of congress, although it has not complied with its
requirements. And there is nothing in the statute absolving the employee
from the duty of using ordinary care to protect himself from injury in the
use of a car with the appliances actually furnished. In other words, not-
withstanding the company failed to comply with the statute, the employee
was not, for that reason, absolved from the duty of using ordinary care for
his own protection under the circumstances as they existed. This has been
the holding of the courts in construing statutes enacted to promote the
safety of employees.? The meaning of the act is that, by remaining in his

2. Delk v. St. Louis, etc, R. Co.,
220 U. S. 580, 55 L. Ed. 590, 31 S. Ct.
617; Grand Trunk, etc., R. Co. v. Lind-
say, 233 U. S. 42, 58 L. Ed. 838, 34 S.
Ct. 581.

In Schlemmer v. -Buffalo, etc. R.
Co., 220 U. S. 590, 55 L. Ed. 596, 31
S. Ct. 561, it is held that under the
original safety appliance act, and un-
til that act was amended by that of
April 22d, 1908 (35 Stat. at L. 65,
chap. 149, U. S. Comp. Stat. Supp. 1909,
p. 1171), contributory negligence on
the part of the party injured, where
such negligence was the proximate
cause of the injury, was a valid de-
fense for the interstate carrier. Delk
v. St. Louis, etc, R. Co., 220 U. S.
580, 55 L. Ed. 590, 31 S. Ct. 627.

Failure of safety couplers to work,
and employee going between cars does
not constitute contributory negligence

so as to bar a recovery, not even com-
parative negligence to diminish dam-
ages under the Employers’ Liability
Act. Grand Trunk, etc, R. Co. 7v.
Lindsay, 233 U. S. 42, 58 L. Ed. 838,
34S. Ct. 581. See ante, “Abolished
When Statute Violated,” § 63.

3. Choctaw, etc., R. Co. v. McDade,
191 U. S. 64, 48 L. Ed. 96, 24 S. Ct.
24; St. Louis Cordage Co. 7. Miller,
61 C. C. A. 477, 126 Fed. 495, 63 L,
R. A. 551. See ante, “Distinguished
from Contributory Negligence.” § 68;
“Assumption of Risk and Contributory
Negligence Distinguished,” § 258.

4. Denver, etc., R. Co. v. Arrighi, 63
C. C. A. 649, 129 Fed. 347,

5. Schlemmer v. Buffalo, etc., R. Co.,
220 U. S. 590, 55 L. Ed. 596, 31 S.
Ct. 561; Cleveland, etc., R. Co. v7. Cur-
tis, 134 Ill. App. 565.
§§ 259-260 THE SAFETY APPLIANCE ACT. 540

employment, the servant does not assume the risks generally incident to the
absence of such equipment as is required, but not that in a particular case
of voluntary action, with full knowledge of the situation, the character of
the act is not to be determined according to all the facts and circumstances.
The known absence of such equipment is a circumstance to be considered
in determining whether an employee was guilty of contributory negligence,
or intended to assume the risk. A contrary construction of the act would
permit the employee to take the risk of operating instrumentalities not sup-
plied with statutory appliances under circumstances of extreme and well-
understood danger, with the conscious purpose of holding the company re-
Sponsible for the result.6 The distinction between assumed risk and con-
tributory negligence is not easily drawn but the plaintiff’s acts when they
amount to assumed risk cannot be called contributory negligence so as to
permit a defense which the statute intended to abolish.7

§ 260. Care Required of Employee.—An employee must exercise not
only ordinary care, but that degree of care and watchfulness which men of
ordinary care and prudence, with the same knowledge and experience, us-
ually exercise for their own safety under similar circumstances. The man-
ner in which other railroad men of reasonable prudence, were accustomed
to perform their work, provided such was not manifestly negligent, would
fix the standard by which an employee’s conduct must be tested. This is
true even in the absence of knowledge by an employee of the manner in

which the other employees customarily worked.®

6. Cleveland, etc, R. Co. v. Baker,
33 C. C. A. 468, 91 Fed. 224, 63 U. S.

App. 553.
% See ante, “Abolished under Stat-
ute,” § 256.

8. Care required of employee.—Delk
v. St. Louis, etc, R. Co., 220 U. S$.
580, 55 L. Ed. 590, 31 S. Ct. 617; Nor-
folk, etc., R. Co. v. Hazelrigg, 107 C.
C. A. 66, 184 Fed. 828; Grand Trunk,
etc., R. Co. v. Poole, 175 Ind. 567, 93
N.E. 26.

Instructions on care—The follow-
ing instruction on contributory negli-
gence under the act, when due to a
defective coupler an employee is re-
quired to go between cars, was held
to fairly submit that question to the
jury: “If you conclude that he did
that as a reasonably prudent man, with
his experience and his observation and
the facts and circumstances in the case
as I have detailed or undertook to
state them here, and if you believe
that that was done as a reasonably
prudent man would have done it, then
he would not be barred in this action;
but if you believe that his conduct in
the manner in which he attempted to
couple that car was such that a rea-

sonably prudent man, situated as he
was under all the facts and circum-
stances that surrounded him there,
would not have attempted to do it,
and that it was a negligent way to at-
tempt to do it, and such a negligent
way as a reasonably prudent man with
his experience and observation would
not have attempted, then he would be
guilty of negligence; and that negli-
gence, if you believe it was the prox-
imate cause of the injury, would be
such as to bar him in this action; and
that question I leave to you entirely
without intimating any opinion about
it.” Delk v. St. Louis, etc., R. Co., 220
U. S. 580, 55 L. Ed. 590, 31 S. Ct. 617,
reversing 158 Fed. 931, 14 Am. & Eng.
Ann. Cas. 233, 86 C. C. A. 95. ©

9. Custom of other employees.—
Grand Trunk, etc., R. Co. v. Poole, 175
Ind. 567, 93 N. E. 26.

Same—Instructions—On the ques-
tion of contributory negligence it is
proper to submit the question of plain-
tiff’s knowledge and experience. “The
use of the words ‘with such experience
as plaintiff in this case had, and with
such knowledge of railroading as he
had,’ is criticised as an unwarranted
541 CONTRIBUTORY NEGLIGENCE. § 260

Almost every act of operative railroading presents elements of known
danger to the employee in such service, but this fact does not make him
chargeable with negligence in undertaking such work. The question in each
case is whether the particular act involved was attended with such manifest
or known danger that a person of ordinary prudence should not have at-
tempted its performance under existing circumstances,!° because the move-
ment of trains requires prompt action, and it cannot be held that, as a mat-
ter of law, a brakeman, in leaning forward to remove a pin which would
have yielded to his effort, was guilty of negligence because he did not an-
ticipate that his foot might slip and be caught in an open frog rail of which
he had or could be charged with knowledge.11

The question whether an employee was guilty of contributory negligence
is generally not one of law for the court, but one-of fact for the determina-
tion of the jury, in the light of all the evidence, and the instructions of the
court upon that subject.12. That an employee was injured while using the

limitation upon the rule governing 229 U. S. 317, 57 L. Ed. 1204, 33 S. Ct.

contributory negligence; the defendant
contending that the plaintiff's negli-
gence must be determined by the
standard of a brakeman of ordinary
care and prudence, and not by the
standard of a brakeman of ordinary
care and prudence with like knowledge
and experience. It can not be contro-
verted that plaintiff's knowledge and
experience are proper elements for
consideration in determining the ques-
tion of assumption of risk. That sub-
ject, however, is not before us, as un-
der the federal safety appliance act
(Act March 2, 1893, c. 196, 27 Stat. 531
[U. S. Comp. St. 1901, p. 3174]) the
defense of assumption of risk is not
open. In our opinion the plaintiff’s
experience is equally to be taken into
account in cases of contributory negli-
gence. Blumenthal v. Craig, 26 C. C.
A. 427, 81 Fed. 320; George v. Clark,
29 C. C. A. 374, 85 Fed. 608; Wheeler
v. Oak Harbor Headlining, etc., Co.,
61 C. C. A. 250, 126 Fed. 348; Michigan
Headlining, etc, Co. v. Wheeler, 72
Cc. Cc. A. 71, 141 Fed. 61.” Norfolk,
etc., R. Co. v. Hazelrigg, 107 C. C. A.
66, 184 Fed. 828.

10. Known dangers.—Grand Trunk,
etc., R. Co. v. Poole, 175 Ind. 567, 93
N. E. 26.

An employee can not be declared to
be guilty of contributory negligence
because frogs, both blocked and un-
blocked, were known to him to present
elements of danger to one walking in
front of a moving car. Grand Trunk,
etc, R. Co. v. Poole, 175 Ind. 567, 93
N. E. 26.

11. Chicago, etc. R. Co. v. Brown,

840.

12. Question for jury.—United States.
—Grand Trunk, etc, R. Co. v. Lind-
say, 233 U. S. 42, 58 L. Ed. 838, 34 S.
Ct. 581; Chicago, etc., R. Co. v. Brown,
229 U. S. 317, 57 L. Ed. 1204, 33 S.
Ct. 840, affiyming 185 Fed. 80, 107 C.
C. A. 300; Delk vw. St. Louis, etc., R.
Co., 220 U. S. 580, 55 L. Ed. 590, 31
S. Ct. 617; Southern R. Co. v. Snyder,
124 C. C. A. 60, 205 Fed. 868; Nichols
v. Chesapeake, etc., R. Co., 115 C. C.
A. 601, 195 Fed. 913; Denver, etc., R.
Co. v. Arrighi, 72 C. C. A. 400, 141 Fed.
67; Erie R. Co. v. Russell, 106 C. C.
A. 160, 183 Fed. 722; Chicago Junc-
tion R. Co. v. King, 94 C. C. A. 652,
169 Fed. 372.

Alabama.—Kansas, etc. R. Co. vw.
Flippo, 138 Ala. 487, 35 So. 457.
Arkansas.—York v. St. Louis, etc., R.
Co., 86 Ark. 244, 110 S. W. 803. ,
Illinois —Chicago, etc, R. Co. w.
Walters, 217 Ill. 87, 75 N. E. 441.
Indiana.—Grand Trunk, etc., R. Co.
v. Poole, 175 Ind. 567, 93 N. E. 26.
Missouri—Johnston v. Chicago, etc.,
R. Co. (Mo. App.), 164 S. W. 260.
Texas.——Southern Pac. Co. v. Allen,
48 Tex. Civ. App. 66, 106 S. W. 441.
Virginia.—Southern R. Co. v. Sim-
mons, 105 Va. 651, 55 S. E. 459.
Going between cars when couplers
fail to work is not contributory negli-
gence per se but depends upon care
exercised after going between. Grand
Trunk, etc., R. Co. v. Lindsay, 233 U.
S. 42, 58 L. Ed. 838, 34 S. Ct. 581.
“Tt can not be afhirmed to be negli-
gence per se for a breakman to go in
between the cars and engine to make
§ 260

THE SAFETY APPLIANCE ACT.

542

old-fashioned link and pin coupler will not raise a presumption that he was
negligent. While it might be argued that there are thousands of such coup-
lings made each day without injury to employees, yet on the other hand they
have been recognized as being so dangerous that upon the attention of con-
gress being called to such, the safety appliance act was passed ; and therefore
his injury cannot create a presumption one way or the other, but the ques-
tion would be for the jury whether or not he exercised ordinary care in

making the coupling.1%

Where before plaintiff went between the cars to

make a coupling, necessitated by a defective coupler, a switchman belonging
to his crew was stationed on a box car—the second car toward the engine
from the one at which plaintiff was working—who knew that plaintiff
was working. between the cars, and it was his duty to watch out for
danger in each direction, and to warn plaintiff of the approach of any car

a coupling.” Kansas, etc. R. Co. v.
Flippo, 138 Ala. 487, 35 So. 457.

Where an engine was under the con-
trol of a brakeman but he only gave a
signal to’ go slow, and not to stop
which he could have done and made a
coupling in safety; but if he had rea-
sonable ground to believe he could
make it safely and possibly would have
done so except for a defect in the
coupling of which he bag no knowl-
edge, and when this contingency oc-
curred, immediate action was required,
he could not be held to be guilty of
contributory negligence as matter of
law. Chicago, etc. R. Co. v. Walters,
217 Ill. 87, 75 N. E. 441.

“Plaintiff testified that, when he
found the lever would not work, he
climbed up between the cars and stood
upon the sill of the last car which was
to remain in the train, and between
the body of that car and the car which
was being pushed and which was to
be cut off. He says this was not only
the customary method under the cir-
cumstances, but that he had been ex-
pressly instructed to take this course
when levers would not work. Stand-
ing here and grasping the handhold
upon the adjacent body of the car we
can not say that, as matter of law, he
was in an unnecessarily dangerous po-
sition. It was in many respects safer
than being upon the ground between
moving cars, and we decline to say
that assuming this position, after the
failure of the automatic coupler appa-
ratus, was necessarily negligence. He
says that then, standing in this posi-
tion and retaining with his left hand
his grip upon the handhold, he put his
right foot upon the sill of the other
car, leaned down, pulled the pin,
stepped back and recovered his upright

position—all before the sudden jar
which threw him to the ground. The
conclusion that there was contributory
negligence seems to be rested essen-
tially upon Nichols’ act in placing his
right foot upon the sill of the other
car. It obviously would be inexcus-
ably negligent for a man to ride in
this position, depending equally upon
the foot upon each side, and then to
cause the cars to separate, but the
same conclusion can not be impera-
tively applied’ to this case without
overlooking his statement that he had
recovered his upright position upon
the following car before the shock,
and that. he had continually retained
his grip upon the handhold. Whether
his conduct under these conditions,
and in view of his testimony that he
was following instructions in this
method of operation, made him guilty
of contributory negligence, was for
the triers of fact.” Nichols v. Chesa-
peake, etc., R. Co. 115 C. C. A. 601,
195 Fed. 913, 918.

“When one is required to act quickly
in an emergency he can not be held
to be guilty of contributory negligence
as a matter of law, if he failed to ex-
ercise the best judgment or did not
take the safest course. The question
is then for the jury to determine
whether, under all the circumstances
of the case, he acted as an ordinarily
prudent and careful person would have
done, under similar circumstances, in
adopting the course he did, even
though it proved to be the more dan-
gerous.” St. Louis, ete, R. Co. vw.
York, 92 Ark. 554, 123 S. W. 376, 378.

13. Same—Presumption from injury.
—Denver, etc, R. Co. uv. Arrighi, 72
C. C. A. 400, 141 Fed. 67.
543 CONTRIBUTORY NEGLIGENCE. § 260
liable to effect a collision with the cars in plaintiff’s vicinity. There was
testimony tending to show that this was’ the customary means of protection
prevailing in those yards under similar circumstances, and with the knowl-
edge and approval of yard superintendents. Plaintiff knew that the watch-
man was on top of the car, and for the purpose of discovering, and warning
him of, any danger of collision. The jury might well have found that
plaintiff believed the provision made adequate for his safety, and that the
switchman on watch could and would ascertain and warn plaintiff of the
approach of any car liable to cause a collision with him. The conclusion that
plaintiff must have known that it was impossible for the switchman on watch
to afford him protection against a movement of the cars by no means re-
sulting from the testimony, it cannot be said, as matter of law, that an ordi-
narily prudent person, under the given circumstances, would have taken
other or more effective means for his protection than were taken by plaintiff.
It results that plaintiff’s contributory negligence did not appear as matter
of law, and the court did not err in refusing to direct a verdict on this
ground.1+

Nor can it be said as a matter of law that an employee was guilty of
contributory negligence in placing his arm between the buffers of cars when
an engine was attached to them, when he had no reason to think that the
engine was liable to move the cars at any moment, but on the contrary, he
had the right to assume, and act upon the assumption, that his signal not
to move the cars while he was between them, would be obeyed by the engi-
neer.15 Neither was an employee guilty of contributory negligence as a
matter of law in walking backwards with the motion of a car after uncoup-
ling it. If he remained between the cars longer than was necessary for him
to extricate himself after uncoupling them, he would certainly be guilty of
contributory negligence, and could not recover; but going backward with
the motion of the car might, or might not, have been the best method to
have escaped the moving car from his position where he uncoupled it. That
is a question of fact.1®

Contributory Negligence as Matter of Law.—There are, however,
cases in which the evidence is sufficient to show the employee failed to
exercise ordinary care and was guilty of contributory negligence as a matter
of law,!7 as where after an employee made several attempts to couple cars
with a defective coupling but could not do so and at last coming from be-
tween the cars gave a signal to the engineer to come back quick which was
immediately obeyed, but he himself in the meantime went between the cars,

14. Same — Adequate precaution
against danger—-Southern R. Co. v.
Snyder, 124 C. C. A. 60, 205 Fed. 868.

17. Contributory negligence as mat-
ter of law.—Toledo, etc., R. Co. v.
Gordon, 100 C. C. A. 572, 177 Fed.

15. Same—Assuming dangerous po-
sition —Southern Pac. Co. v. Allen, 48
Tex. Civ. App. 66, 106 S. W. 441.

16. York v. St. Louis, etc, R. Co..
86 Ark. 244, 110 S. W. 803.

152; Denver, etc., R. Co. v. Arrighi, 63
C. C. A. 649, 129 Fed. 347; Schlemmer
v. Buffalo, etc., R. Co., 220 U. S. 590,
55 L. Ed. 596, 31 S. Ct. 561.
§ 260 THE SAFETY APPLIANCE ACT, 544

he was held to be guilty of contributory negligence precluding a recovery.*®
Also the following facts were held such as to justify a verdict being di-
rected for the defendant on the ground of contributory negligence: “The
plaintiff was a skillful workman in his calling, having had about 11 years’
experience in railroading. He was thoroughly acquainted with the old-
style link and pin couplings and the method of operating them. He knew
that the cars which he sought to couple were so equipped. There was no
defect in the couplings which contributed to the accident. The engine which
was moving the car up to make the coupling was being directed by him,
and they came up so slowly as to be barely moving. Not a single fact, cir-
cumstance, or condition appeared in connection with the cars, their sur-
roundings, equipment, or operation which was exceptional, or which seemed
in any way to contribute to the accident. The plaintiff adopted the most
dangerous method of performing his duty. He took hold of the link of the
approaching car with his left hand to guide and direct it, and, having done
so, he simply left his hand between the drawheads until his fingers were
crushed by the impact. His attention was not momentarily distracted; the
moving car did not approach more rapidly than he calculated; he did not
stumble or lose his balance, nor was he unable to see clearly; he was not
unfamiliar in any degree with the character of the appliances about which
he was engaged; and it does not even appear that he endeavored to remove
his hand.” 19 In Schlemmer v. Buffalo, etc., R. Co., 220 U. S. 590, 55 L.
Ed. 596, 31 S. Ct. 561, 563, the court said:

“Was the ruling of the state court in denying the right of recovery upon
the ground of contributory negligence, in view of the circumstances
shown, such as to deprive the plaintiff in error of the benefit of the
statute which made assumption of risk a defense no longer available
to the employer? To answer this question we shall have to look to the
testimony adduced at the trial, all of which is contained in the record
‘before us. As we have already said, the testimony shows that the
plaintiff’s intestate was an experienced brakeman. A witness, who is
uncontradicted in the record, testified that just before Schlemmer got
out of the caboose, when he saw the train backing up, he was told:
“We had better shove that up by hand, the same as we did in Bradford.
That is a dangerous coupling to make.’ (At Bradford the method of
making the coupling was by means of pushing the caboose up against.
the train, instead of backing the train against the caboose.) To this
Schlemmer replied, with emphasis, ‘Back up.’ He then proceeded to
make the coupling, with the result stated. Another witness, the yard
conductor, testified without contradiction, that just before the cars
got together he walked up to Schlemmer, and told him they had better
shove the caboose on by hand, to which he answered: ‘Never mind,
I will make this coupling.’ To which the witness answered: ‘Well,
you will have to get down.’ Witness testified that he called to him

18. Toledo, etc, R. Co. v. Gordon, see Denver, etc, R. Co. v. Arrighi,
100 C. C. A.:572, 177 Fed. 152. 72 C. C. A. 400, 141 Fed. 67, where

19. Denver, etc. R. Co. v. Arrighi, the evidence on appeal was held to
63 C. C. A. 649, 129 Fed. 347. But present a question for the jury.
545

CONTRIBUTORY NEGLIGENCE. §§ 260-261

twice to get down, the last time not more than a second, possibly a
couple of seconds, before he was injured. This witness furthermore
testified that he had a sufficient crew to push the caboose up by hand,
that there was plenty of force to shove the caboose up in that way; that
that was a great deal safer way to make the coupling than backing onto
the caboose. The testimony further shows that there was plenty of
-room under the projection of the shovel car to operate the drawbar
and raise it up. In fact, in this manner, the coupling was made a few
minutes after the unfortunate occurrence which resulted in the death of
the deceased. As the record is now presented, there is no proof in the
case that the deceased was ordered to make the coupling in the manner
he did, and there is testimony to the effect that, just before the injury,
the conductor in charge of the train said to the deceased: ‘Mr. Sch-
lemmer, you be very careful now, and keep your head down low, so as
not to get mashed in between those cars.’ He said he would. In view
of this record we cannot say that the court, in denying a recovery to
the plaintiff, upon the ground of contributory negligence of the de-
ceased, denied to her any rights secured by the federal statute. En-
tirely apart from the question of assumption of risk, which, under the
law, could not be a defense to the plaintiff's action, as the law then
stood, there remained the defense of contributory negligence. After
an examination of the record as now presented, containing testimony
not adduced at the former trial, we are constrained to the conclusion
that there was ample ground for saying, as both the trial court and
the supreme court of the state of Pennsylvania did, that the decedent
met his death because of his unfortunate attempt to make the coupling
in a dangerous way, when a safer way was at the time called to his
attention. Furthermore, he was injured in spite of repeated cautions,
made at the time, as to the great danger of being injured if he raised his
head in attempting to make the coupling in the manner which he did.”

§ 261. Failure to Use Appliances.—Where a railroad company fur-

nishes its cars with automatic couplers, coupling by impact, with which cars
may be coupled’and uncoupled with safety and without going between the
cars, a brakeman refusing to use such safety appliance, and voluntarily
adopting the dangerous method of going between the cars to do the work,
and being fatally injured while so engaged, no recovery can be had against

the company.?°

20. Failure to use appliances.—Gil-
bert v. Burlington, etc. R. Co., 63 Cc.
C. A. 27, 128 Fed. 529; Atchison, etc.,
R. Co. v. Rudolph, 78 Kan. 695, 99 Pac.
224: Morris v. St. Louis, etc. R. Co.
(Tex. Civ. App.), 158 S. W. 1055. See
also, Norfolk, etc. R. Co. v.. United
States, 101 C. C. A. 249, 177 Fed. 623.

“Tt has been held that when a rail-
road company, in compliance with the
safety appliance act, furnishes its em-
ployees with the required appliance, it
becomes their duty to use it, and a
failure to do so will bar a recovery
for injuries which would have been
avoided by such use. Gilbert v. Bur-
lington, etc, R. Co., 63 Cc. C. A. 2%,

Fed Act—35

And an employee in charge of a train who fails to have

128 Fed. 529.” Atchison, etc., R. Co.
v. Rudolph, 78 Kan. 695, 99 Pac. 224,
22:7,

In Gilbert v. Burlington, etc., R. Co.,
63 C. C. A. 27, 128 Fed. 529, it
is held that the safety appliance act
making it the absolute duty of the
companies to equip their cars with
couplers which can be uncoupled
“without the necessity of men going
between the ends of the cars” imposes
upon the employees the correlative
duty of using these couplers when
furnished, and of refraining from un-
necessarily going between the ends of
cars to uncouple them, and a failure of
a servant to observe this duty directly
§§ 261-262 THE SAFETY APPLIANCE ACT. 546
the air brakes coupled up as required by the act, violates the statute and for
this reason is guilty of contributory negligence, precluding a recovery;
and the custom of the company not to require such coupling would not be
an excuse. The action being against a railroad other than the employer,
the accident happening at a crossing and the evidence showing that if the
train on which plaintiff was a conductor had had the air brakes working
it could have been stopped before reaching the other track.22

An employee cannot assume, when a coupler refuses to work by a single
operation of the lever, that it is out of order, but he must give it a fair and
reasonable trial before going between the cars. Thus where plaintiff was
37 years of age, had 12 years’ experience as a brakeman, switchman, and
yardmaster, and was thoroughly familiar with that branch of railroad serv-
ice, is not excused for going between cars, when he admitted it was a very
common occurrence for the effective operation of a coupling appliance to
require several forcible jerks of the lever—as many as three or four. This
is naturally so, and it does not imply a defect in the condition of the
mechanism if it is of an approved pattern. Exposure to weather and rust
will cause the best of them to work hard at times, and the con-
necting link or links will occasionally become cramped. Such _ things
are unavoidable, and it is the duty of him who works with such
appliances to give them a fair and reasonable trial before going into a place
where life and limb are in jeopardy; otherwise, the well known tendency,
born of familiarity with danger, to do a thing the easier rather than the safer
way will frustrate the beneficient purposes of the act of Congress and de-
prive it of much of its potency.?8

§ 262. Failure to Use Safer Method.—When there is a compara-
tively safe and a more dangerous way known to a servant, by means of
which he may discharge his duty, it is negligence for him to select the
more dangerous method,?* but a showing that all ways are dangerous does

contributes to his injury and bars his
recovery. Union Pac. R. Co. v. Brady,
88 C. C. A. 579, 161 Fed. 719.

Where the defendant’s negligence is
based upon a violation of the safety
appliance law it is not proper to in-
struct that, “(4) If, * * * on the
occasion complained of by plaintiff, he
voluntarily, unnecessarily, and negli-
gently went between two of defend-
ant’s freight cars * * * and under-
took to uncouple said cars, and in so
doing, and as the sole and only cause
thereof, and without any negligence on
the part of defendant” he can not re-
cover for the injuries complained of.
As from the instruction the jury
might conclude that, although plaintiff
went in between the cars, yet his ac-
tion in doing so was neither unneces-
sary nor negligent; whereas, as a mat-

ter of law, his going between the cars
was both unnecessary and negligent
if, as a matter of fact, there was no
negligence on the part of defendant.
Nashville, etc., Railway v. Henry, 158
Ky. 88, 164 S. W. 310.

21. Stearns v. Chicago, etc, R. Co.,
166 Iowa 566, 148 N. W. 128; St. Louis,
etc.,, R. Co. v. Wilkes (Tex. Civ. App.),
159 S. W. 126, writ of error granted in
161 S. W. xvi, no op.

22. Stearns v. Chicago, etc., R. Co.,
166 Iowa 566, 148 N. W. 128.

23.. Reasonable effort to work appli-
ances.—Union Pac. R. Co. wv. Brady,
ss C. C. A. 579, 161 Fed. 719. See
also, ante, “Defective and Inoperative
Couplers,” § 235. :

24, Failure to use safer method.—

Morris v. Duluth, etc., R. Co., 47 C.

C. A. 661, 108 Fed. 747; Gilbert v. Bur-
547 CONTRIBUTORY NEGLIGENCE. § 262

not raise any question of contributory negligence in the choice of ways.?5
Though upon this proposition the cases may appear to be in conflict, they
are not so when it is qualified by adding that in the choice of ways the
operation can be performed as easily in one as the other. Thus
while couplers may be operated on either side it is not an employee’s ab-
solute duty when the lever on his side refuses to work, to use the lever on
the opposite side and in this way prevent the necessity of going between the
cars.?8

That it was an absolute duty to use the coupling lever on the opposite
side, the violation of which made an employee guilty of contributory negli-
gence, was held in Gilbert v. Burlington, etc., R. Co., 27 but the duty as laid
down in that case was subsequently, distinctly disapproved by the United
States Circuit Court of Appeals for the seventh circuit in the later case of
Chicago, etc., R. Co. v. Brown, 28 and this last case was followed and applied
in Grand Trunk, etc., R. Co. v. Lindsay, 2° so it is not to be considered con-
tributory negligence per se, when it is necessary to reach the lever on the

lington, etc., R. Co, 63 C. C. A. 27,
128 Fed. 529; Atchison, etc., R. Co. v.
Rudolph, 78 Kan. 695, 99 Pac. 224;
Schlemmer v. Buffalo, etc., R. Co., 222
Pa. 470, 71 Atl. 1053, affirmed in 31 S.
Ct. 561.

Where the employee of a railroad
company, in the discharge of his du-
ties, has two methods by which his
work can be accomplished, one safe
and the other dangerous, and he vol-
untarily and of his own choice adopts
the dangerous method and is injured
while so engaged, no recovery from
the railroad company can be had for
such injuries. Atchison, etc., R. Co.
v. Rudolph, 78 Kan. 695, 99 Pac. 224.

A railway train was equipped with
two levers,—one on each side of it,—
to enable the brakeman to draw a pin
between two cars without entering be-
tween them. The machinery attached
to the lever on the side of the plain-
tiff was out of order, while that at-
tached to the lever on the opposite
side was in good condition. Held, the
fact that the brakeman chose to, and
did, step in between the cars while in
motion to draw the pin, instead of us-
ing the lever on the opposite side of
the train, provided for the purpose,
was evidence of negligence contribu-
ting to an injury resulting from his
stumbling while walking between the
cars. Morris v. Duluth, etc. R. Co.,
47 C. C. A. 661, 108 Fed. 747.

“The present is a clear case of con-
tributory negligence within this rule.
The evidence is indisputable that the
unfortunate decedent not only at-
tempted to make the coupling in a
dangerous way when his attention was

directly called to a safer way, but also
did it with reckless disregard of his
personal safety by raising his head,
though twice expressly cautioned at
the time as to the danger of so doing.”
Schlemmer v. Buffalo, etc., R. Co., 222
Pa. 470, 71 Atl. 1053, affirmed in 31 S.
Ct. 561.

25. Grand Trunk, etc, R. Co. vw.
Poole, 175 Ind. 567, 93 N. E. 26.

26. Use of coupler on opposite side.

—Norfolk, etc, R. Co. v. Hazelrigg,
107 C. C. A. 66, 184 Fed. 828; Nichols
v. Chesapeake, etc., R. Co. 115 C. C.
A. 601, 195 Fed. 913.
_An instruction on contributory neg-
ligence is properly refused, which fails
to submit to the jury the plaintiffs
knowledge of a comparatively safe and
less dangerous way of performing the
coupling by which he was injured.
Norfolk, etc, R. Co. v. Hazelrigg, 107
C. C. A. 66, 184 Fed. 828.

27. 63 C. C. A. 27, 128 Fed. 529.

Plaintiff held guilty of contributory
negligence on his failure to use lever
on opposite side when the one on his
side failed to work. Gilbert v. Chi-
cago, etc., R. Co. (C. C.), 123 Fed. 832,
affirmed in Gilbert v. Burlington, etc.,
R. Co., 68.C. C. A. 27, 128 Fed. 529.

28. 107 Gy Co Ae 300, 185 Fed. 80, af-
firmed in 33 S. Ct. 840. See also, John-
ston v. Chicago, ete, R. Co. (Mo.
App.), 164 S. W. 260.

29. 120 C. C. A. 166, 201 Fed. 836,
affirmed in 34 S. Ct. 581. See also,
Popplar v. Minneapolis, etc. R. Co.,
121 Minn. 413, 141 N. W. 798, Ann.
Cas. 1914D, 383, affirmed in 35 S. Ct.
609; Southern Pac. Co. v. Allen, 48
Tex. Civ. App. 66, 106 S. W. 441.
§ 262

THE SAFETY APPLIANCE ACT.

548

opposite side, that an employee must climb over the train or wait till the
cars have stopped, °° or to go around the end of the train or in front of the
engine ; 3! but where the employee has only to cross the track, 3? or the plat-
form of a caboose, 23 in order to reach the lever on the other side he will
be guilty of contributory negligence. as a matter of law. Thus in justify-
ing a directed verdict for the defendant in Suttle v. Choctaw, etc., R. Co.,
75 C..C. A. 470, 144 Fed. 668, the court said:

“When plaintiff’s intestate was directed to uncouple the caboose, he was

on the south side of the train, which was then standing still.

30. United States—Nichols v. Chesa-
peake, etc, R. Co. 115 C. C. A. 601,
195 Fed. 913; Chicago, etc., R. Co. v.
Brown, 107 C. C. A. 300, 185 Fed. 80,
affirmed in 33 S. Ct. 840; Donegan v.
Baltimore, etc., R. Co., 91 C. C. A. 555,
165 Fed. 869.

Arkansas —St. Louis, etc., R. Co. v.
York, 92 Ark. 554, 123 S. W. 376.

Minnesota—Popplar v. Minneapolis,
etc., R. Co., 121 Minn. 413, 141 N. W.
798, Ann. Cas. 1914D, 383, affirmed 35
S. Ct. 609.

Where, in switching operations in a
large railroad yard, a car is being
“kicked,” and the usual method of un-
coupling is to pull the pin while the
cars are in motion, if the pin lifter on
an automatic coupler refuses to work,
the act of the brakeman in going be-
tween the cars while in motion to
make the uncoupling is not conclusive
of negligence on his part, where the
only way to open the coupler without
so doing is to stop the train, abandon
the “kick,” and walk around to a lever
on the other side of the train. Pop-
plar v. Minneapolis, etc., R. Co. 121
Minn. 413, 141 N. W. 798, Ann. Cas.
1914D, 383, affirmed in 35 S. Ct. 609.

“It is also urged that, after the lever
refused to work, there was a safe way,
and a dangerous way, of pulling the
pin; that Nichols chose the danger-
ous way, and was, therefore, negligent.
It is true that it would have been pos-
sible for him to climb over the train
and operate the lever on the other side
or to refuse to go between the cars
until the train had stopped; but we can
not say as matter of law that it was
his unquestionable duty to do either
one of these things.” Nichols v. Ches-
apeake, etc., R. Co. 115 C. C. A. 601,
195 Fed. 913, 918.

“It is contended that upon the facts
the plaintiff was, as a matter of law,
guilty of contributory negligence. We
can not so rule. Without attempting
to differentiate between the defense of
asst:mption of the risk, which can not
be set up in an action based upon the
safety appliance law, and the de-

The east

fense of contributory negligence (see
Schlemmer v. Buffalo, etc., R. Co., 205
U.S. 1, 51 L. Ed. 681, 27 S. Ct. 407),
it is sufficient to say that the question
of contributory negligence here was
one for the jury. The duty of the
plaintiff was to uncouple the cars. His
first obligation was to use the safety
appliance. He attempted to use the
appliance on his side of the car, but
it was broken. He could only have
used the appliance on the opposite side
of the car—provided it was in working
order—by in some way going around
or across the moving train. He could
hardly have accomplished this before
reaching the west yard switch. He
attempted to obey his order by un-
coupling by hand. Under the circum-
stances it can not be said as a matter
of law that he adopted a dangerous
method of discharging his duty when
a comparatively safe means was open
to him. It was peculiarly within the
province of the jury to look into all
the facts and circumstances and deter-
mine whether the plaintiff used the or-
dinary care required of him in carrying
out the order which was given him.
Negligence is not the only inference
possible to be drawn from the facts,
and its existence could not be deter-
mined as a matter of legal knowledge.”
Donegan v. Baltimore, etc., R. Co., 91
C. C. A. 555, 165 Fed. 869, 872.

31. Norfolk, etc, R. Co. v. Hazel-
rigg, 107 C. C. A. 66, 184 Fed. 828;
Fletcher v. South Dakota Cent. R. Co.
(S. Dak.), 155 N. W. 3, 6.

32. Union Pac. R. Co. v. Brady, 88
C..C. A. 579, 161 Fed. 719.

Plaintiff going between cars to op-
erate a coupler is guilty of contribu-
tory negligence when he could have
crossed the track and used a lever on
the other side, the danger of doing so
being small as one car was wuncon-
nected and the engine attached to the
others being under his control. Un-
ion Pac. R. Co. v. Brady, 88 C. C. A.
579, 161 Fed. 719.

33. Suttle v. Choctaw, etc. R. Co.,
75 C. C. A. 470, 144 Fed. 668.
549 CONTRIBUTORY NEGLIGENCE. §§ 262-263
end of the caboose was furnished with the ordinary platform for pas-
sage from one side to the other. He passed over this platform,
turned a switch, and returned to the south side. "The train had then
started and was moving at a slow rate of four to six miles per hour.
There is no evidence of any unusual haste or emergency. Plaintiff’s in-
testate, either knowing before, or then ascertaining, that the lever on
the south side of the caboose did not operate the coupling pin, went be-
tween the caboose and neighboring box car while the train was moving,
as just stated, for the purpose of lifting the coupling pin with his fingers
and thereby disconnecting the two cars. This was in the nighttime. While
doing this he stumbled and fell and was run over by the train. The
evidence discloses that there were other safe and practicable methods
open to plaintiff for uncoupling the cars. On receiving his orders, he
being on the south side, crossed the platform to the north side, turned
the switch, and returned to the south side. He might, as he had just
done, have stepped across the platform and made use of the lever on
the box car. He might have sat on the platform and safely reached
over and drawn the pin with his hands. He might have given a signal
and had the train stopped for the purpose of safely disconnecting the
cars. Moreover, he might, as he should have done, declined to expose
himself to danger by unnecessarily going between the two cars in the
nighttime, while they were in motion.”

§ 263. Failure to Observe Rules.—The violation of an employee of

a rule of the employer, made for the protection of employees, is ordinarily

held to constitute negligence per se. But this doctrine is not an absolute one.

It yields to practical necessity. If the employer has failed to comply with

some requirement of law, and such failure makes it impossible for the

employee to do his work in the usual way, this may excuse him, if he fol-
lows a method of doing the work which is the only method reasonably
practicable under the circumstances, or is a method which a reasonably pru-
dent man would follow.34 Thus the rules of practically all railroads pro-
hibit employees from going between cars, but if a coupling cannot be made
in any other way, a violation is excusable. Whether or not the circum-
stances justified a violation and the employee used reasonable prudence, is
for the jury.25 An employee is not to be held guilty of contributory neg-

34. Failure to observe rules.—Chi-
cago, etc, R. Co. vw Walters, 120 Il.
App. 152, affirmed in 75 N. E. 441, 217

ing cars. The rule must be construed
in connection with the- statute. The
course to be followed by a brakeman

‘ll. 87; Popplar v. Minneapolis, etc.,
R. Co., 121 Minn. 413, 141 N. W. 798,
Ann. Cas. 1914D, 383, affirmed in 35
S. Ct. 609; Burho v. Minneapolis, etc.,
R. Co., 121 Minn. 326, 141 N. W. 300.
See, also, Schlemmer v. Buffalo, etc.,
R. Co., 205 U. S. 1, 51 L. Ed. 681, 27
S. Ct. 407.

85. Popplar v. Minneapolis, etc., R.
Co., 121 Minn. 413, 141 N. W. 798, Ann.
Cas. 1914D, 383, affirmed in 35 S. Ct.
609; Southern Pac. Co. v. Allen, 48
Tex. Civ. App. 66, 106 S. W. 441.

In this case a rule of defendant for-
bade brakemen going in between mov-

when an automatic coupler refuses to
work is not pointed out in any rule.
The only way to uncouple, without go-
ing between cars, was to stop the train
and walk around to the other side.
The conductor on the train, called by
defendant, testified that it was not nec-
essary for the brakeman to do this, but
that he might go between the cars
while standing and open the coupler.
This was one of the things the stat-
ute was designed to avoid. Under all
the circumstances of the case, the
question whether disobedience of the
rule was in this case negligence was
§ 263 THE SAFETY APPLIANCE ACT. 550

ligence for his failure to report a defect which was a violation of the Act
or that in making the report it was made to an official not designated by the
rules of the company. The defect had been in existence for two weeks and
though it was contended that the defendant had no knowledge of it by rea-
son of the failure of the employee to report it, yet this would not excuse
the company as knowledge is not an element nor could it delegate its duty
of inspection and repair to an employee by making rules to that end.3¢

one of fact for the jury. Popplar v.
Minneapolis, etc., R. Co., 121 Minn.
413, 141 N. W. 798, Ann. Cas. 1914D,
383, affirmed in 35 S. Ct. 609.

“The violation or disobedience of
the servant of his masters rules is not
negligence per se; but whether negli-

gence vel non is a question of fact for
the jury.” Southern Pac. Co. wv. Al-
len, 48 Tex. Civ. App. 66, 106 S. W.
441, 447.

36. Failing to report defects.—Chi-
cago, etc., R. Co. v. Walters, 217 Ill.
87, 75 N. E. 441.
CHAPTER XXXVII

PROCEEDINGS FOR PENALTY.

1. Nature of Proceedings, § 264.
2. Duty to Institute Proceedings, § 265.

§ 264. Nature of Proceedings.—A proceeding to recover penalties
under this act is not a criminal case. It is a civil action in the nature of an
action of debt to recover a penalty, 1 which congress in its wisdom saw fit
to impose upon railroads to secure compliance with certain specified regu-
lations, made to promote the safety of passengers and freight carried in
interstate commerce, and to protect employees engaged in that service.
After making provisions for the automatic coupling devices and grabiron
and handholds, the statute enacts that any common carrier making use of
any car not equipped as required by the act “shall be liable to a penalty of
one hundred dollars for each and every such violations, to be recovered in
a suit or suits to be brought by the United States.’2 This is not the lan-
guage employed in fixing punishments denounced for criminal offenses.
The act made it unlawful for railroads to use cars not equipped as therein
provided, and thereby imposed a duty upon railroad companies to equip

1. Nature of proceedings.—Chicago,
etc, R. Co. v. United States, 220 U.
S. 559, 55 L. Ed. 582, 31 S. Ct. 612, af-
firming 95 C. C. A. 642, 170 Fed. 556;
Louisville, etc., R. Co. v. United States,
98 C. C. A. 664, 174 Fed. 1021, affirm-
ing 162 Fed. 185; United States v. Chi-
cago, etc, R. Co. (D. ©.), 162 Fed.
775; United States v. Atlantic, etc., R.
Co. (D. C.), 153 Fed. 918, 919, affirmed
in 168 Fed. 175, 94 C. C. A. 35; United
States v. Illinois Cent. R. Co., 95 C.
C. A. 628, 170 Fed. 542; United States
v. Southern R. Co. (D. C.), 170 Fed.
1014; United States v. St. Louis, etc.,
R. Co., 106 C. C. A. 230, 184 Fed. 28;
St. Louis, etc., R. Co. uv. United States,
106 C. C. A. 136, 183 Fed. 770; United
States v. Philadelphia, etc., R. Co. (D.
C.), 160 Fed. 696; United States vw.
Boston, etc., R. Co. (D. C.), 168 Fed.
148; United States v. Atlantic, etc., R.
Co. (D. C.), 182 Fed. 284; United
States v. Great Northern R. Co. (C. C.
A.), 229 Fed. 927.

“While this suit is in the nature of
a penal action, yet it does not follow
that it is a criminal’ prosecution. It
is really an action for debt.” Atlantic,
etc., R. Co. v. United States, 94 C. C.
A. 35, 168 Fed. 175, 176, affirming 153
Fed. 918.

“There is this further to be said:

551

This is what is called a penal statute;
that is to say, it is a statute that im-
poses a penalty. It is not a statute
that makes a criminal prosecution or
requires a criminal prosecution, or per-
mits, indeed, a criminal prosecution
for the violation of its provisions, but
it imposes a money penalty. The rules
that apply, therefore, in the: criminal
court do not apply here.” United
States v. Philadelphia, etc., R. Co. (D.
C.), 160 Fed. 696, 699.

“This is not a criminal action, but
is a suit of a civil nature to recover
the penalties prescribed for a viola-
tion of the law.’ United States vw.
Chicago, etc., R. Co. (D. C.), 162 Fed.
775, 778.

As to nature with respect to direct-
ing verdict, see post, “Verdict and
Judgment,” '§ 286.

Contra.—United States v. Illinois
Cent. R. Co. .(D. C.), 156 Fed. 182;
Atchison, etc., R. Co. v. United States,
96 C. C. A. 646, 172 Fed. 194, 27 L. R.
A., N. S., 756. See, also, United States
v. Southern R. Co, (D. C.), 135 Fed.
122; United States v. Erie R. Co., 237
U. S. 402, 59 L. Ed. 1019, 35 S. Ct. 621.

2. Wording of act as determining
character—Section 6 of the act of
1893.
§ 264 THE SAFETY APPLIANCE ACT. 552

cars accordingly. A breach of this duty, like the breach of most civil duties,
naturally entailed a liability, and congress fixed that liability not as a pun-
ishment for a criminal offense but as a civil consequence, so far as the
government was concerned, of a failure to perform the duty which in the
opinion of congress the public weal demanded should be performed by rail-
road companies.

Penalty as Determining Character.—Even a penal action is not nec-
essarily a criminal prosecution. In Chicago, etc., (R. Co. v. United States,
220 U. S. 559, 55 L. Ed. 582, 31 S. Ct. 612, 617, aieuing 95 C. eo A. 642,
170 Fed. 556; 156 Fed. 180, the court said:

“The present action is a civil one. It is settled law that ‘a certain sum,
or a sum which can readily be reduced to a certainty, prescribed in a
statute as a penalty for the violation of law, may be recovered by civil
action, even if it may also be recovered in a proceeding which is tech-
nically criminal.’ It was so decided, upon full consideration, in Hepner
v. United States, 213 U. S. 103, 53 L. Ed. 720, 29 S. Ct. 474, 27 L. R.
A., N. S., 739, 16 Am. & Eng. Ann. Cas. 960. * * * If the statute
upon which the present action is based had expressly or by implication
declared that the penalty prescribed may only be recovered by a crim-
inal proceeding, that direction must have been followed.”

Penalties are often recoverable in civil actions,* and the mere infliction
of a penalty does not make the action criminal;® as penalties are of differ-
ent sorts. They may consist of a sum of money which the offender shall
pay in atonement for his forbidden act—in other words, of a fine—or
shall suffer some other form of forfeiture of property, or they may con-
sist of the infliction of the corporal punishment of the guilty party, or they
may consist of both of these punishments. The public through its govern-
ment may employ, within certain limitations, such of these various forms
of punishment as it may deem just and necessary to the common welfare.
Offenses range in respect of their turpitude from the smallest to the great-
est, and the theory of punishment is that it shall be measured by the gravity
of the offense. While it is true that the constitution and laws of the coun-
try are prescribed and enforced for the protection of property as well as
of the person, yet they regard with greater concern the protection of the
latter. And so, when for small offenses a pecuniary punishment is pre-
scribed as the atonement, it has long been the practice to employ a civil
action for its recovery. Assuming that the punishment is just, the conse-
quences to the defendant are not far different from those which happen in
civil actions, only it is the government which is the plaintiff. The conse-
quences of the judgment are substantially the same to him as if the penalty
was bestowed upon a private party, except with regard to the scintilla of

8. Chicago, etc, R. Co. v. United Co. (D. C.), 180 Fed. 483.
States, 95 C. C. A. 642, 170 Fed. 556, 5. Chicago, etc., R. Co. v. United
affirmed in 31 S. Ct. 612. States, 220 U. S. 559, 55 L, Ed. 582, 31
4. Penalty as determining charac- S. Ct. 612.
ter.—United States v. Oregon, etc., R.
4

553 PROCEEDINGS FOR PENALTY. §§ 264-265

interest he has in the public revenue. If the public may, for a sufficient rea-
son, compel the defendant to pay a fine, it is of little importance to him
whether the government keeps it for its own purposes or turns it over to an-
other who is already indemnified. Mere academic discussions of the theory
of the practice by which it is done do not interest him. Probably in all the
systems of law in the state and federal government there are instances where
to civil liabilities there are attached penalties, there being something wanton
or gross or otherwise peculiar to the liability. Yet such penalties are en-
forced in civil actions.®.

Besides § 6 of the act makes it the duty of the district attorney to bring
suits. If it were a criminal case, provision would have been made for its
prosecution by information or indictment.7

§ 265. Duty to Institute Proceedings.—Suits for violations are 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 inter-
state commerce commission to lodge with the proper district attorneys in-
formation of any such violations as may come to its knowledge.®

Proper Parties to Maintain Action for Damages.—A party injured
of course brings the action in his own name, but in case of death where an
action is brought under the Federal Employers’ Liability Act it must be
maintained in the name of his personal representative because it is therein
so provided. But an action under this act and which is not brought under
the federal act but under an act of the state permitting a recovery in cases
of death from negligence, is properly maintained in the name of the person
upon whom such state statute confers that right.®

6. United States v. Illinois Cent. R.
Co., 95 C. C. A. 628, 170 Fed. 542.

7. Recovery not by indictment or in-
formation.—United States v. St. Louis,
etc, R. Co, 106 C. C. A. 230, 184
Fed. 28.

8. Duty to institute proceedings. —
Section 6 of Act March 2, 1893, ch.

196, 27 St. at L. 531, as amended by
Act April 1, 1896, ch. 87, 29 St. at L.
85. See United States v. St. Louis,
etc. R. Co. 106 C. C. A. 230, 184
Fed. 28.

9. Parties who may maintain ac-
tion— Mobile, etc, R. Co. v. Brom-
berg, 141 Ala. 258, 37 So. 395.
CHAPTER XXXVIII.
JurispicTion, VENUE AND REMOWAL OF CAUSE.

1. Jurisdiction and Venue, § 266.
2. Removal of Cause, §§ 267-271.
a. Because under Federal Law, § 267.
b. Necessity of Pleading Raising Federal Question, § 268.
c. Amendment of Pleading Raising Question, § 269.
d. Joint Actions—Separable Controversy, § 270.
e. Jurisdiction on Removal and Effect of Decision, § 271.

§ 266. Jurisdiction and Venue.—An action to recover damages, may
be maintained in the state courts.1 Though the act does not confer upon the
state courts any jurisdiction permitting a recovery for negligence based
thereon, it has been universally enforced when applicable, the jurisdiction
unquestioned, and it is not perceived how it could be, as the act of congress
is a valid regulation of interstate commerce, and over which congress
has exclusive jurisdiction, its provisions are binding upon the courts of all
the states.?

Since this question has been decided by the Federal Supreme Court in a
very recent case where the right of the state to entertain jurisdiction of an
action under the liability act was raised, though previously considered,? it
may be well to repeat what was said in Minneapolis, etc., R. Co. v. Bombolis
(U. S.), 36S. Ct. 595, 598:

“Lawful rights of the citizen, whether arising from a legitimate exercise
of state or national power, unless excepted by express constitutional
limitation or by valid legislation to that effect, are concurrently subject
to be enforced in the courts of the state or nation when such rights
come within the general scope of the jurisdiction conferred upon such
courts by the authority, state or nation, creating them. This principle
was made the basis of the first Federal judiciary act, and has prevailed
in theory and practice ever since as to rights of every character, whether
derived from constitutional grant or legislative enactment, state or na-
tional. In fact, this theory and practice is but an expression of the
principles underlying the constitution, and which cause the governments
and courts of both the nation and the several states not to be’ strange or
foreign to each other in the broad sense of that word, but to be all
courts of a common country, all within the orbit of their lawful author-
ity being charged with the duty to safeguard and enforce the right of
every citizen without reference to the particular exercise of govern-
mental power from which the right may have arisen, if only the au-
thority to enforce such right comes generally within the scope of the
jurisdiction conferred by the government creating them.”

1. Jurisdiction—To recover dam- 2. Mobile, etc, R. Co. v. Bromberg,
ages.—Minneapolis, etc, R. Co. v. 141 Ala. 258, 37 So. 395.
Bombolis (U. S.), 36 S. Ct. 595; At- 8. See ante, “Jurisdiction of state

lantic, etc., R. Co. v. Whitney, 62 Fla. Courts,” §§ 108-111.
124, 56 So. 937.

554
555 JURISDICTION, VENUE AND REMOVAL OF CAUSE. 88 266-267

In proceedings to recover penalties, suit is to be brought in the district
court of the United States having jurisdiction in the locality where a vio-
lation shall have been committed.4

Actions brought under the act to recover injuries are transitory.5 “If an
injury be done to the person or to personalty of another, it is at common
law said to be ‘transitory; that is, the liability therefor is deemed to be
personal to the perpetrator of the wrong, following him wherever he may
go, so that compensation may be exacted from him in any proper tribunal
which may obtain jurisdiction of the defendant’s person, the right to sue not
being confined to the place where the cause of action arises.”® The right
of the courts of one state or country to take jurisdiction of actions arising
in another, if not contrary to the public policy of the forum, is based upon
the comity due one state or country to another, and is established beyond
dispute. The concurrence of the two in holding that a negligent act, such
as that upon which the suit is based, is subject to legal redress shows that
it is not contrary to the public policy of the state; but, if an action under
this act should be regarded as distinctively statutory, the statute upon which
it is based gives the same right of action and redress for injuries caused
from its violation in every state and territory in the Union.”

§§ 267-271. Removal of Cause—§ 267. Because under Federal
Law.—The mere fact that plaintiff’s cause of action is based upon an act
of congress, does not make it removable. The controversy must be one as
to the construction of the statute, as distinguished from the questions of
fact. A federal question which will confer jurisdiction upon a United States
court, either by original process or by removal, must be a question of law
as stated by the plaintiff in his complaint, and not a question of fact. Where
the facts only are in dispute, and the federal law governing the case is un-
controverted, the United States court cannot take jurisdiction. When a
legal question arising under the constitution or a law or a treaty of the
United States is decided by the Supreme Court, it ceases to be a federal
question. In Shulthis v. McDougal, 225 U. 8. 561, 56 L. Ed. 1205, 32 S.
Ct. 704, the court said:

“A suit to enforce a right which takes its origin in the laws of the United
States is not necessarily, or for that reason alone, one arising under
those laws, for a suit does not so arise unless it really and substantially
involves a dispute or controversy respecting the validity, construction,

4. Venue of proceedings for penalty.
—Section 6 of Act March 2, 1893, ch.
196, 27 Stat. at L. 531, as amended by
Act April 1, 1896, ch. 87, 29 Stat. at
L. 85.

5. Action for damages is transitory.
—St. Louis, etc., R. Co. v. Taylor, 210
U. S. 281, 52 L. Ed. 1061, 28 S. Ct.
616; Southern Pac. Co. wv. Allen, 48
Tex. Civ. App. 66, 106 S. W. 441.

6. Minor’s Conflict of Laws, § 192.

7. Federal statutory rights enforce-
able in all states——Southern Pac. Co.
v. Allen, 48 Tex. Civ. App. 66, 106 S.
W. 441.

8. Because under federal law.—
Myrtle v. Nevada, etc., R. Co. (C. C.),
137 Fed. 193. See, also, Shulthis v.
McDougal, 225 U. S. 561, 56 L. Ed.
1205, 32 S. Ct. 704.
§§ 267-268 THE SAFETY APPLIANCE ACT. 556
or effect of such a law upon the determination of which the result de-

pends.”

So where the only question raised by the pleadings is, whether the defendant
was engaged in interstate commerce, and whether, if so engaged, its cars
were equipped as provided for in the act; this.is only a question of fact,
which can be determined in the state court as well as the federal court, and
is not removable.®

§ 268. Necessity of Pleading Raising Federal Question.—The right
to remove the cause from a state to a federal court, on the ground alone of
a federal controversy, depends upon whether or not at the time the removal
is sought the pleadings show a controversy involving a federal question.
They must show this on their face.!° In International, etc., R. Co. v. Elder,
44 Tex. Civ. App. 605, 99 S. W. 856, 857, dismissed in 102 Tex. 585, no op.,
the court said:

“Tt is first insisted that the court erred in refusing to grant appellant’s
motion and petition to remove this cause to the circuit court of the
United States. The question presented is, Do the facts as alleged in
appellee’s petition show that the case is one arising, in whole or in part,
‘under the constitution or laws of the United States? If so, then, it
is one over which the circuit court of the United States has been given
original jurisdiction by Act Cong. March 3, 1875, c. 137, and which
hence, by the second section of the same act, may be removed to such
court from a state court. * *.* The allegations in appellee’s petition
upon which appellant principally rests its contention are that the ‘cars
in use on defendant’s said railway, and particularly the cars on which
plaintiff was injured, were not properly equipped with automatic coup-
lers, as required by law.’ It is urged that this necessarily involved a
construction and application of the act of congress requiring railway
companies to equip their cars with automatic couplers, and that there-
fore the suit arises, in part at least, under the law of the United States,
and consequently is removable. We hardly feel prepared to say that
the allegations quoted necessarily import a reliance upon the act of
congress mentioned, for it was undoubtedly appellant’s duty under
general principles of law to use ordinary care to furnish its servants
with reasonably safe appliances, and the failure to furnish an automatic
coupler, or furnishing a defective coupler, as alleged by appellee, might
constitute negligence. But conceding that the allegations necessarily
import a reliance upon the act of congress, we still conclude that no
error has been made to appear in the action of the court in overruling
appellant’s motion for removal. By reference to the first and second
sections of the act requiring automatic couplers (see Act March 2, 1893,
c. 196, 27 Stat. 531), it is perfectly apparent that the act is made to

9. Myrtle v. Nevada, etc. R. Co. (C. “To entitle the defendant to re-

C.), 187 Fed. 193.

10. Necessity of pleading raising
federal question—Myrtle v. Nevada,
etc., R. Co. (C. C.), 187 Fed. 193; In-
ternational, etc, R. Co. vw. Elder, 44
Tex. Civ. App. 605, 99 S. W. 856, dis-
missed in 102 Tex. 585, no op.

moval, it [the complaint] must show
that the action arises under the act of
congress; that the plaintiff claims a
legal right thereunder, which legal
right is controverted by the defend-
ant.” Myrtle v. Nevada, etc, R. Co.
(C. C.), 187 Fed. 193.
557 JURISDICTION, VENUE AND REMOVAL OF CAUSE. —8§ 268-269
apply only to common carriers engaged in interstate commerce. The
act has no application whatever to instrumentalities of transportation
used alone within the boundaries of the several states, and it nowhere
appears either in appellee’s original petition, nor in the petition for
removal, that appellant at the time was a common cartier engaged in
interstate commerce, or that the cars charged to have been supplied
with defective automatic couplers were loaded with, or about to be
used in the transportation of, articles constituting such commerce.
The petition alleges appellant to be a corporation incorporated under
the laws of this state, and operating a line of railway between points in
this state. The record hence fails to show a removable case.”

And a petition, declaration or complaint which in the statement of the
cause of action does not show a right or claim under the laws or constitu-
tion of the United States so as to be removable cannot be enlarged by de-
fendant’s petition for removal,1! nor any subsequent pleadings of the de-
fendant so as to confer such right.12

§ 269. Amendment of Pleading Raising Question.—Though it is
only by the plaintiff’s statement of his cause of action that its removability
is determined, but this is not confined to his original statement but extends
to any subsequent amendment, !8 and the fact that a removal is not de-
manded until after the amendment does not characterize the defendant’s re-
quest as untimely.14 In Myrtle v. Nevada, etc., R. Co. (C. C.), 137 Fed.
193, 195, the court said:

“The law is now well settled that an amendment to a complaint in the
state court, which transforms a nonremovable case into a removable
one, allows the suit to be removed into the circuit court, if the defend-
ant acts promptly. This matter is elaborately discussed by the supreme
court in Powers v. Chesapeake, etc., R. Co., 169 U. S. 92, 100, 42 L.
Ed. 673, 18'S. Ct. 264. Among other things, the court said: “The rea-
sonable construction of the act of congress, and the only one which

11. Enlargement by petition for re- the defendants under common law

moval or subsequent pleadings of de-
fendant.—Shohoney v. Quincy, etc., R.
Co., 223 Mo. 649, 122 S. W. 1025, 1029.

12. Gableman v. Peoria, etc., R. Co.,
179 U. S. 335, 337, 45 L. Ed. 220, 21
S. Ct. 171; Walker v. Collins, 167 U.
S. 57, 42 L. Ed. 76, 17 S. Ct. 738.

Contra.—Shohoney v. Quincy, etc.,
R. Co., 223 Mo. 649, 122 S. W. 1025,
1029.

13. Amendment of pleading raising
question— Myrtle v. Nevada, etc. R.
Co. (C. C.), 137 Fed. 193; Nicholas v.
Chesapeake, etc, R. Co., 127 Ky. 310,
105 S. W. 481,17 L. R. A. N. S., 861.

“Tt is impossible to avoid the conclu-
sion that the defendant was entitled to
remove the case to the federal court
after the filing of the amended petition
pleading the federal statute. It may be
that plaintiff could have made out a
case of actionable negligence against

principles; but if it had appeared that,
under the evidence adduced, the plain-
tiff, under common-law principles, as-
sumed the risk of the accident by
which he was hurt, then his right to
recover, if he had such right, would
rest upon the operation of the federal
statute, which relieved him from the
assumption of the risk in question. So
that the case seems to fall necessarily
in the category of cases which arise
under a law of the United States, and,
this being true, was removable by de-
fendants under the federal statute reg-
ulating the jurisdiction of the United
States Circuit Courts and the removal
of actions from the state to the federal
courts.” Nicholas v. Chesapeake, etc.,
R. Co., 127 Ky. 310, 105 S. W. 481, 484,
i7 L. R.A, N. S., 861.

14, Myrtle v. Nevada, etc, R. Co.
(C. C.), 137 Fed. 193, 195.
§ 269 THE SAFETY APPLIANCE ACT. 558

will prevent the right of removal, to which the statute declares the
party to be entitled, from being defeated by circumstances wholly
beyond his control, is to hold that the incidental provision as to the
time must, when necessary to carry out the purpose of the statute,
yield to the principal enactment as to the right; and to consider the
statute as, in intention and effect, permitting and requiring the defend-
ant to file a petition for removal as soon as the action assumes the
shape of a removable case in the court in which it was brought.’ . See,
also, Speckart v. German Nat. Bank (C. C.), 85 Fed. 12, 14; Bailey v.
Mosher (C. C.), 95 Fed. 223, 225; Guarantee Co. v. Hanway, 44 C.
C. A. 312, 104 Fed. 369, 374; Moon on Removal of Causes, § 157, and
authorities there cited.”

Right of Other Application after Amendment.—If the original state-
ment of the plaintiff is decided not to show a removable cause, and the
statement is afterwards amended, defendant is entitled to a second petition
for removal.15 However, if the federal court has once remanded a cause
as not removable there must be a substantial change in the pleadings in
order for the state court to grant a removal, the right being considered as
determined by the federal court.16 In St. Louis, etc., R. Co. v. Neal, 83
Ark. 591, 98 S. W. 958, 963, reversed on other grounds in 28 S. Ct. 616, the
court said:

“The original complaint alleged ‘that plaintiff's cause of action arises
under an act of congress, and, in the trial of said cause, there will
be a controversy as to the construction of said act of congress,’ and
it then proceeded to allege the death of the deceased on account of
said wrongful and improper equipment of said two cars [which he as
brakeman was coupling], and the negligent, defective, and dangerous
condition of same; that said cars were wrongfully and improperly
equipped, and in a dangerous and defective condition in this: ‘Said
cars were not equipped with automatic or safety couplers; the draw-
bars on said cars were not even, uniform, or standard height, as re-
quired by the laws of congress.’ After the remand of the cause to the
state circuit court, the plaintiff amended the first clause above quoted
so as to make it read as follows: ‘That: plaintiff’s cause of action
arises under an act of congress, and in the trial of said cause there
will be a controversy as to the construction of said act of congress,
and that, in the trial of this cause, said act of congress will have to be
construed by the court, and that there will be a controversy as to the
construction of said act of congress.’ Appellant says: ‘After the cause
was remanded from the United States court at Ft. Smith to the Craw-
ford circuit court for trial, then the plaintiff amended his complaint,
and charged that his cause of action arose under the safety appliance
act of congress, and that it would be necessary for the court to construe
the safety appliance act of congress during the further progress of the
cause.’ All of this is true, but the complaint before amendment showed

15. Right of other application after 16. St. Louis, etc., R. Co. v. Neal, 83
amendment.—St. Louis, etc., R. Co. v. Ark. 591, 98 S. W. 958, reversed on
Neal, 83 Ark. 591, 98 S. W. 958, re- other grounds in 28 S. Ct. 616..
versed on other grounds in 28 S. Ct.

616.
559 JURISDICTION, VENUE AND REMOVAL OF CAUSE. §§ 269-271

exactly the same thing, and the amendment was trivial and neither
added to nor took away anything. Whether it was a federal question
was just as clearly in the complaint before as it was after the
amendment, and the federal circuit court decided it was not a federal
question, and that decision is not reviewable here.”

§ 270. Joint Actions—Separable Controversy.—An action brought
by the plaintiff against a railroad with which is joined an employee of the
railroad, a resident of the same state as the plaintiff, and which is not re-
movable, cannot be removed on the ground of a separate controversy. In
Southern R. Co. v. Carson, 194 U. S. 136, 48 L. Ed. 907, 24S. Ct. 609, 610,
the court said:

“The rule is well settled, as stated by Mr. Justice Gray in Powers v.
Chesapeake, etc., R. Co., 169 U. S. 92, 42 L. Ed. 673, 18 S. Ct. 264,
‘that an action of tort, which might have been brought against many
persons, or against any one or more of them, and which is brought in
a state court, against all jointly, contains no separate controversy which
will authorize its removal by some of the defendants into the circuit
court of the United States, even if they file separate answers, and set
up different defenses from the other defendants, and allege that they
are not jointly liable with them, and that their own controversy with
the plaintiff is a separate one; for, as this court has often said, “a de-
fendant has no right to say that an action shall be several which the
plaintiff seeks to make joint. A separate defense may defeat a joint
recovery, but it cannot deprive a plaintiff of his right to prosecute his
suit to final decision in his own way. The cause of action is the sub-
ject-matter of the controversy, and that is, for all the purposes of the
suit, whatever the plaintiff declares it to be in his pleadings.’’”’ The
view thus expressed was reiterated in Chesapeake, etc., R. Co. v. Dixon,
179 U. S, 131,45 L. Ed. 121, 21 8. Ct. G7, where the subject was much
considered, and cases cited.”

But where an action is'instituted by a citizen of one state against a rail-
road domiciled in another with which is joined the engineer as a defendant
upon a common law cause of action, such action is not removable, but when
by amendment the petition is also made to state a cause of action against
the railroad company for violation of a statute, (Safety Appliance Act)
this presents a separable controversy which is removable.17

§ 271. Jurisdiction on Removal and Effect of Decision.—It is not
the order of a state court removing the cause that gives the federal court
jurisdiction, but it is the application for removal in the form prescribed by
the act of congress. If the petition for removal, read in the light of the
pleadings of the case, shows a proper case for removal and the bond ten-
dered is sufficient, it makes no difference what action the state court may
take, the cause is rightfully in the federal -court.18 But where a

17. Action at common law and under 18. Jurisdiction on removal and effect
statute—Nichols v. Chesapeake, etc., of decision—Shohoney v. Quincy, etc.,
R. Co., 115 C. C. A. 601, 195 Fed. 913. R. Co., 223 Mo. 649, 122 S. W. 1025.
560

§ 271 THE SAFETY APPLIANCE ACT.

cause, not removable, is transferred to the federal court, this does not confer
jurisdiction upon it for any purpose save to remand, and while a judgment
denying the motion to remand is binding upon the plaintiff until set aside
on direct attack, so a motion by him to dismiss the proceedings will not
operate to that end, as the federal court had no jurisdiction on removal
and the proceedings in the state court were still pending.19

However a cause which has been properly removed to the federal court
and a motion to remand denied, may be dismissed. After which plaintiff
may begin the action as before, leaving out of his petition the allegations
which made the cause removable, and the decision of the federal court that
it had jurisdiction of the action is not res adjudicata.?°

Review on Remand.—The decision of a federal court remanding a
cause to the state court is not reviewable on appeal to the state supreme
court.21 In St. Louis, etc., R. Co. v. Neal, 83 Ark. 591, 98 S. 'W. 958, 962,
reversed on other grounds in 28 S. Ct. 616, the court said:

“The rule governing this matter is thus stated by the United States Su-

preme Court:

‘If the circuit court (of the United States) remands a

cause, and the state court thereupon proceeds to final judgment, the
action of the circuit court is not reviewable on writ of error to such
judgment. A state court cannot be held to have decided against a fed-

19. Right to dismiss nonremovable
cause in Federal court.—Nichols v.
Chesapeake, etc., R. Co., 115 C. C. A.
601, 195 Fed. 913.

20. Dismissal of removal cause as
res adjudicata—Shohoney v. Quincy,
etc., R. Co., 223 Mo. 649, 122 S. W.
1025, 1029.

“It is also argued that the® Sullivan
county case being based on the same
cause of action, and that case having
been removed to the federal court, and
the motion to remand having been
there overruled, the point of jurisdic-
tion is res adjudicata. There are some
differences between the petitions in the
two cases. The petition in the Sullivan
county case looks very much as though
the pleader had the mind to bring his
case under the act of congress, al-
though that act is not mentioned by
name. It states that the defendant was
engaged in interstate commerce, which
fact, under what we have already said,
even if it was the intention to bring
the suit under that act, was perhaps
unnecessary, because it was a fact of
which the court would take judicial
notice, yet it is a circumstance to
show what the pleader had in his mind;
and the petition also stated, which is
more to the point, that it was the duty
of defendant to have its cars equipped
with automatic couplers that would
couple by impact, and that it failed
to have such couplers, and by reason

of the failure the plaintiff was injured.
There was at that time no law that re-
quired a railroad company to have
such couplers, except the act of con-
gress referred to. Therefore the plain-
tiff pleaded that act. The plaintiff
might have had a cause of action at
common law and also one under the
act of congress, and, if he had both, he
might have sued on either, or, having
sued on one, he might have dismissed
that one and brought suit on the other.
If in the first place plaintiff had brought
his suit in the United States Circuit
Court bottomed on the statute, and had
afterwards dismissed that suit and
brought this one in the state court bot-
tomed on the common law, his position
would have been exactly as it is now.
The order of the federal court overruling
plaintiff's motion to remand the cause
to the state court, if it was a final judg-
ment on the question of jurisdiction,
as defendant contends it was, it was
so only in reference to that case, which
as we have said was different from this
one. After that order was made the
plaintiff dismissed that suit, and de-
fendant does not question his right to
do so, or contend that it barred an-
other suit on the merits.” Shohoney
v. Quincy, etc., R. Co., 223 Mo. 649, 122
S. W. 1025, 1030.

21. Review on remand.—St. Louis,
etc, R. Co. v. Neal, 83 Ark. 591, 98 S.
W. 958, reversed on other grounds in
28 S. Ct. 616.
541

JURISDICTION, VENUE AND REMOVAL OF CAUSE. § 271

eral right, when it is the circuit court (of the United States), and not
the state court, which has denied its possession. * * * As under
the statute a remanding order of the circuit court is not reviewable by
that court on appeal or writ of error from or to that court, so it would
seem to follow that it cannot be reviewed on writ of error to a state
court, the prohibition being that “no appeal or writ of error from the
decision of a circuit court remanding such cause shall be allowed.”
And it is entirely clear that a writ of error cannot be maintained under
§ 709, Rev. St. [U. S. Comp. St. 1901, p. 575] in respect of such an
order when the state court has rendered no decision against a federal
right but simply accepted the conclusion of the circuit court.’ Missouri
Pac. R. Co. v. Fitzgerald, 160 U. S. 556, 40 L. Ed. 536, 16 S. Ct. 389;
Nelson v. Moloney, 174 U. S. 164, 43 L. Ed. 934, 19 S. Ct. 622; Tellu-
ride Power Trans. Co. v. Rio Grande R. Co., 187 U.S. 569, 47, L. Ed.
307, 23 S. Ct. 178.”

Fed Act—36
CHAPTER XXXIX.

LIMITATION OF ACTION, AND DEFENSES.

1. Limitation of Actions, § 272.
2. Defenses, § 273.

§ 272. Limitation of Actions.—In the absence of any general federal
statutes of limitation, and in the absence of any specific limitation in the
statute creating the cause of action, the rule of limitation is to be found
in the statutes of the state, ! and in actions in the federal courts in the ab-
sence of any authoritative construction of such statute by the supreme court
of the state, the federal courts apply their own construction.”

§ 273. Defenses.2—It has been seen in considering previous sections,
that the use of one end only of a locomotive, for the purpose of coupling
when the other end was defective was not a defense; * neither was the low-
ering of a drawbar when due to the sagging, not of the bar itself but of the
whole frame; 5 nor that a car could be coupled with an adjacent car by the
use of the appliances thereon without an employee going between ; ® nor that
the defendant -had used due diligence to discover defects and make repairs."

1. Limitation of actions.—Nichals v.
Chesapeake, etc., R. Co., 115 C. C. A.
601, 195 Fed. 913. Following, Camp-
bell v. Haverhill, 155 U. S. 610, 613, 39
L. Ed. 280, 15 S. Ct. 217.

2. Nichols v. Chesapeake, etc., R. Co.,
115 C. C. A. 601, 195 Fed. 913.

Kentucky statute construed.—‘‘Sec-
tion 2515, Kentucky Statutes, directs
that various actions, and among those
‘upon a liability created by statute’
shall be commenced within. five years;
while § 2516 prescribes that certain ac-
tions, and among others those for per-
sonal injury, must be commenced
within one year after the cause of
action accrues. The defendant invokes
§ 2516 as the applicable section,” but
“because it states one depending on
the statute we think it follows that the
five-year statute (§ 2515) covers the
case, and hence that the action is not
barred. This liability seems plainly i
be one ‘created by statute’ * *

If the Kentucky courts had con-
strued the one-year statute as covering
such an action as this, we would be
bound by such construction, but, in the
absence of such controlling authority,
we can not adopt that view. The Ken-
tucky cases which are cited (Carden
v. Louisville, etc, Railroad, 101 Ky.
113, 39 S. W. 1027; Louisville, etc.,
R. Co. w Simrall, 127 Ky. 55, 104

562

S. W. 1011) do hold that actions
for negligently causing death, which
actions are created by the death
act of 1854 (Acts 1853-54, c. 964), are
barred in one year, but this is because
the one-year limitation is found ex-
pressly stated in the original death act,
and its presence in § 2516 is thought
to be in this connection merely a trans-
fer in revision. We can not construe
§§ 2515 and 2516 as covering in this re-
spect a common field, and enforce the
stricter or shorter limitation. Con-
strued together, these sections mean
that ordinary actions for personal in-
jury are barred in one year, but that
those actions of that general character
which are created by statute are not
barred until five years. The specific
must control the general.” Nichols v.
Chesapeake, etc. R. Co. 115 C. C. A.
601, 195 Fed. 913, 916.

3. Defenses.—As to difficulty of com-
pliance as defense, see ante, “Construc-
tion,” § 216.

4, See ante, “Complete Equipment of
Each Car,” § 231; “Vehicles to Which
Applicable, ” § 237.

5. See ante, “Variations in Height,”
§ 242.

6. See ante, “Complete Equipment of
Each Car,” g 231.
ue See ante, “Duty of Railroads,” §

5.
563 LIMITATION OF ACTION, AND DEFENSES. § 273
And when treating the nature of the duty imposed by the act 8 it was seen
to be no defense, that the railroad had no knowledge of the defects com-
plained of, or that it had exercised reasonable care and diligence to comply
with the statute, or had made rules requiring the employee to inspect for
defects.®

When considering the right to establish reasonable care as a defense in
United States v. Southern R. Co. (D. C.), 135 Fed. 122, 127, the court

said:

“The statute says that a common carrier shall not haul or use cars in a
certain described condition. The defendant asks the court to hold, in
effect, that they cannot haul the car in that condition, provided they
have failed to use diligence to discover its defective condition, but that,
if they have used due diligence, they may haul the car in its defective
condition. In all such cases it would be impossible for the officers of
the government to determine in advance whether a statute has been
violated or not; but, before a prosecution could be properly instituted,
they should go to the defendant company; ascertain what care it had
used in regard to a certain car; determine as a matter of fact and law,
whether the acts of the defendant constituted due diligence, and from
that determine whether a prosecution might be safely instituted. It is
evident that such a defense would take the very life out of the act in
question, and render its enforcement impossible except in a few iso-
lated cases. The courts cannot by judicial legislation read into the act
any language which will excuse offenders, any more than they can read
into it language which would increase their liability. Courts must en-
force the law as they find it.”

Even should it be assumed that due care and diligence would constitute
a defense it must be the highest form of diligence, and where a car is found
defective soon after leaving the initial point where received from a connect-
ing road, and in the short distance traveled on defendant’s road it is prob-
able that had the appliance been in proper condition when it left such point,
it would not have become defective, this is strongly indicative of a defect
discoverable by proper inspection.1°

The custom of the railroad could not, of course, justify a violation of the
statute, but that custom, having the acquiescence of the interstate commerce

commission, is persuasive of the meaning of the statute,!! and the placing
of a red card on a car indicative of a defect in the coupler will not excuse
its continued use in interstate commerce.??

8. See ante, “Nature of Duty Im-
posed,” § 217.

9. See ante,
245,

10. United States v. Indiana Harbor
R. Co. (D. C.), 157 Fed. 565.

11. Custom and indicating defect.
Pennell v. Philadelphia, etc., R. Co., 231
U. S. 675, 58 L. Ed. 430, 34 S. Ct. 220.

12. United States v. Chicago, etc., R.
Co. (D. C.), 173 Fed. 684.

Where the defendant company, in

“Duty of Railroads,” §

the conduct of its business, contem-
plated and expected that in some in-
stances it would put cars in use with
defective safety appliances, this will
not be excused by the use of an “M.
C. B. card”’ This card placed on a
defective car, with the defect described
on the card, is notice to all connecting
lines that the defendant sent the car
out defective, and that other lines
using the car would not have to ac-
count to defendant for the particular
§ 273 THE SAFETY APPLIANCE ACT, 564

Hauling and Setting Aside for Repairs.—The defendant railroad com-
pany can show that it comes within a proviso of the act, and even before
the amendment of 1910, permitting a movement necessary for repairs, the
courts had construed the act as not requiring an impossibility, and permitted
such a movement under some circumstances.1% If it was permitted to set
cars aside for repairs, they were considered as withdrawn from interstate
commerce ;14 but the railroad seeking to excuse itself on this ground has
to plead the same,!® and also carries the burden of proof.!%

injury or defect noted on the car, but 14. See ante, “Vehicles Set Aside for
is such a deliberate violation of the stat- Repairs,” § 223.

ute as to amount to defiance of the law. 15. See post, “Plea or Answer,”
United States v. Southern R. Co. (D.  8§ 275, 277.

C.), 1385 Fed. 122, 129. 16. See post, “To Sustain Defense,”

18. Hauling and setting aside for re- § 283.
pairs.—See ante, “Hauling Cars to Re-
pair,” §§ 247-251.
CHAPTER XL.

PLEADING.

1. Actions to Recover Penalties, §§ 274-275.
a. Declaration or Complaint, § 274.
b. Plea or Answer, § 275.

2. Actions for Damages, §§ 276-277.
a. Declaration or Petition, § 276.

b. Plea or Answer, § 277.

§§ 274-275. Actions to Recover Penalties—§ 274. Declaration
or Complaint.—In matters of practice and pleading the United States
courts are governed largely by the practice and pleading of the courts of
the state where the suit may be instituted. This rule is based upon the pro-
visions of § 914 of the ‘Revised Statutes! which reads as follows: “The
practice, pleadings, and forms and modes of proceeding in civil causes, other
than equity and admiralty causes, in the circuit and district courts, shall con-
form, as near as may be, to the practice, pleadings, and forms and modes
of proceeding existing at the time in like causes in the courts of record of
the state within which such Circuit or District Courts are held, any rule of
court to the contrary notwithstanding.” 2

Charging Violation in Language of Statute.—Where in each count or
cause of action the alleged dereliction of the defendant is set forth in the
language of the statute itself, and in addition thereto the time and ‘place,
the car, and the particular part of the car where the defect existed, as well
as the nature of the defect, are all specifically alleged; more is not re-
quired. This is true if the action is to be considered civil, but even when

considered criminal is equally true In United States v. Oregon, etc., R.
Co. (D. C.), 180 Fed. 483, 484, the court said:

“But, even if we apply the stricter rules of criminal pleading, the com-
plaint must be held to meet the requirements. ‘It is sufficient to pursue
the very words of the statute, if by doing so the act, in the doing of
which the offense consists, is fully, directly and expressly alleged, with-
out any uncertainty or ambiguity. In many cases no allegation of any-
thing more than the words of the statute, ex vi terminorum, import is
necessary, in order to show that the defendant has committed the of-
fense, and to charge the offense with certainty. Here it is always suf-
ficient to charge the offense in the words of the statute.’ Clark, Crim-
inal Procedure, p. 269.”

Charging Several Violations in Distinct Counts.—Being in effect an

1. Declaration or complaint.—U. 5. 3. In language of statute.—United
Comp. St. 1901, p. 684. States v. Oregon, etc., R. Co. (D. C.),
2. Governed by practice of state— 180 Fed. 483.
Atlantic, etc., R. Co. v. United States, 4. United States v. Oregon, etc., R.

94 C. C. A. 35, 168 Fed. 175, 176, af- Co. (D. C.), 180 Fed. 483.
firming 153 Fed. 918.

565
§ 274 THE SAFETY APPLIANCE ACT. 566
action of debt to recover penalties, the petition may, of course, properly
contain several counts, and the. government may charge in each count a
distinct violation of the act, as that the defendant hauled a car in violation
of § 2 without automatic couplers, another in violation of § 4 on which the
grab irons of another car were missing, and a third also in violation of § 2
in which it is charged that another car was out of repair and not equipped
with automatic couplers. This is not the splitting up of a crime and trial of
it in parts, nor a violation of any rule of duplicity in indictments, or putting
one twice in jeopardy for the same offense.®

Charging Use in Interstate Commerce.—In charging in the same dec-
laration in different counts several violations of the act and in the first
paragraph defendant is charged with an act constituting a movement of
cars in interstate commerce, other paragraphs which begin with the state-
ment, ‘Plaintiff further alleges,” etc., but setting up no interstate movement
will be held to refer to the first paragraph, on a demurrer on that ground.®
An allegation that the defendant hauled a car in interstate traffic is all that
is necessary, and there need not be any allegation as to the length of the
haul or that the appliance claimed to be defective, was used during such
haul.7 In United States v. Denver, etc., R. Co., 90 C. C. A. 329, 163 Fed.
519, 521, the court said:

“The statute inhibits a hauling ‘in moving interstate traffic,’ and the com-
plaint, taking the second count as an illustration, alleges that the de-
fendant ‘hauled over its line of railroad one car, to wit, Pere Marquette
41,948, used in moving interstate traffic to wit, bullion consigned from
Murray, in the state of Utah, to New York Harbor, in the
state of New York,’ and ‘hauled said car, with said interstate traffic,
over its line of railroad out of its yards at Minturn, in the state of
Colorado, in an easterly direction, when’ one of the couplers thereon
was out of repair and inoperative, as before stated. The criticism made
of this allegation is that it does not specify how far the hauling was
continued, or its purpose, and is silent respecting any actual use of the
defective coupler; but the answer to this is that the allegation does
sufficiently show an actual and substantial hauling in moving interstate
traffic, and that, this being so, it is immaterial, under the statute, how
far the hauling was continued or whether there was any actual use of
the defective coupler.”

And as a car continues to be used in interstate commerce until its final des-
tination is reached,® a car which is consigned to a large city and is being
switched from one railroad yard to another, is still used in such commerce

5. Charging several violations in dis-
tinct counts.—United States wv. St.
Louis, etc., R. Co., 106 C. C. A. 230,
184 Fed. 28.

6. Use in interstate commerce—
Charging in each count.—Louisville,
etc., R. Co. v. United States, 108 C. C.
A. 326, 186 Fed. 280.

7. Same—Length of haul and use of
appliance.—United States v. Denver,
etc, R. Co., 90 C. C. A. 329, 163 Fed.
519.

8. See ante, “Vehicles Used in Inter-
state Commerce,” § 222.
567 § 274

PLEADING.

within the allegations of a declaration that a railroad used such car “over
its line of railroad in and about Atlanta in the state of Georgia.” 9

Charging Knowledge or Want of Care.—The duty imposed by the
statute being absolute,!° a declaration need not charge the appliance to be

defective because of negligence and want of care on the part of the com-

pany.11_ In United States v. Wheeling, etc., R. Co. (D. C.), 167 Fed. 198,
201, the court said:

“Whatever may be the right of the railroad company to defend against
the claim made in a suit of this kind by saying that the coupling became
defective or the grab iron lost so recently before the time named in
the petition as to make it impossible in the exercise of ordinary care to
replace or repair, that is purely a matter of defense if it ever can be
asserted at all. It cannot be urged in support of a demurrer to the
cause of action. If it were not so, it would be practically impossible
for proof to be made in any case of a violation of the law. There are
approximately two million cars in use by railroads in this country, and,
if the contention referred to is sound, it would be necessary in order
to sustain a cause of action in cases under this act that proof be made
that the appliance was in a condition of unrepair at one time, that it
continued to be in that condition of unrepair or in a developing condi-
tion of greater unrepair up to another time, the lapse of the interven-
ing time being so great as to show a want of ordinary care on the part
of the railroad company. In the meantime the very thing to prevent
which the law was passed might occur, to wit, the inquiry of an em-
ployee. The practical administration of justice would be denied, and
the real enforcement of the law be impossible if the construction con-
tended for was sound. But it has been held in several cases that, even
as a defense on the merits no degree of care, no absence of negligence
can excuse for the failure to perform a duty unqualifiedly imposed by

‘statute. And in the recent case of St. Louis, etc., R. Co. v. Taylor, 210
U. S. 281, 52 L. Ed. 1061, 28 S. Ct. 616, the court very pointedly lays
the unqualified responsibility upon the railroad for such a condition of
unrepair.”

Neither is it necessary to charge that the defendant acted with knowl-
edge.t2. Thus where a complaint charged a failure to keep couplers in re-

9. Same—Car in city of destination.
—United States v. Western, etc. R.
Co. (D. C.), 184 Fed. 336.

10. Charging knowledge or want of
care—See ante, “Nature of Duty Im-
posed,” § 217. ;

11. Norfolk, etc, R. Co. v. United
States, 101 C. C. A. 249, 177 Fed. 623;
United States v. Denver, etc., R. Co.
90 C. C. A. 329, 163 Fed. 519; Atlantic,
etc., R. Co. v. United States, 94 C. C.
A. 35, 168 Fed. 175, affirming 153 Fed.
918; United States v. Wheeling, etc.,
R. Co. (D. C.), 167 Fed. 198.

“The third objection is that there is
no allegation of any failure on the part
of the defendant to exercise reasonable

care in maintaining the coupler in op-
erative condition. It must also fail, be-
cause the duty which the statute im-
poses upon a railroad company, in that
regard is not qualified by the common-
law rule of reasonable care, but is ab-
solute, as has been recently and au-
thoritatively settled in St. Louis, etc.,
R. Co. v. Taylor, 210 U. S. 281, 52 L.
Ed. 1061, 28 S. Ct. 616. See also,
United States v. Atchison, etc., R. Co.,
90 C. C. A. 327, 163 Fed. 517.” United
States vi Denver, etc., R. Co., 90 C.
me a oo 519, 521.

. Unite tates v. Oregon, etc., R.
Co. (D. C.), 180 Fed. 483,~ we
§ 274 THE SAFETY APPLIANCE ACT. 568

pair, it is not necessary to allege that the defect was discovered, or could
by a reasonable inspection have been discovered, so that the car could have
been repaired before it was hauled or moved.!? An allegation that the vio-
lation occurred “on or about” a particular date is not vague and indefinite,
in fact no particular date need be alleged where the other allegations are
such that the defendant can determine the date from its records, and if it
deems the date essential may obtain the same by a bill of particulars.15 In
Atlantic, etc., R. Co. v. United States, 94 C. C. A. 35, 168 Fed. 175,178,
the court said:

“Here we have an allegation in which is stated the number of the car,
and the nature of the traffic, as well as the point from which the car
was started and the direction in which it was hauled. It seems to us
that such an allegation is sufficiently definite to advise the defendant
as to the character of the charge which it is called upon to defend, and
to enable it to determine with accuracy as to the particular date on
which such car was hauled over its line. It is to be presumed that the
railroad company keeps a record of its cars, as well as the numbers of
the same, and in a case like this, where the number of the car is given, '
and the kind of traffic it carried on or about a certain date, it would be
an easy matter for the officers of the company to examine its books and
ascertain definitely as to the day when such car was moved, and thereby
be afforded full and ample information as to any facts which it might
desire to use in defending an action of this character. However, if
counsel for defendant believed that such allegations were too vague and
indefinite, they could have availed themselves of the provisions of the
North Carolina statute, and, under the practice in that state, could have
obtained a bill of particulars setting forth in detail all the desired in-
formation. This they neglected to do. Following the well-established
practice in the courts of that state, we conclude there was no error in
the action of the court below in overruling the demurrer.”

Alleging Necessity of Going between Cars.—The statute makes the
hauling unlawful if the car be not equipped with “couplers coupling auto-
matically by impact, and which can be uncoupled, without the necessity of
men going between the ends of the cars,’ and a complaint which alleges
that the hauling occurred “when the coupling and uncoupling apparatus on
the ‘B’ end of said car was out of repair and inoperative, the uncoupling
chain being kinked on said end of said car, thus necessitating a man or men
going between the ends of the cars to couple or uncouple them, and when
said car was not equipped with couplers coupling automatically by impact,
and which could be uncoupled, without the necessity of a man or men going
between the ends of the cars,” is sufficient to show that the hauling of the
car was unlawful. Though it is contended that a coupling between such
an inoperative coupler and an operative one can be automatically effected

18. Discovery of defects by inspec- 14. Time of offence.—Atlantic, etc.,
tion.— Atlantic, etc, R. Co. v. United R. Co. v. United States, 94 C. C. A. 35,
States, 94 C. C. A. 35, 168 Fed. 175, af- 168 Fed. 175, affirming 153 Fed. 918.
firming 153 Fed. 918. 15. Atlantic, etc. R. Co. v. United

States, 94 C. C. A. 35, 168 Fed. 175.
569 PLEADING. § 274

by impact, and an uncoupling #hereof can also be effected, without the ne-
cessity of a man going between the ends of the cars, if he happens to be on
that side of the track from which the lever of the operative coupler can be
manipulated, or if he crosses to that side by going around, climbing over
or crawling under the cars, the statute having been construed to require an
operative coupler on both ends of the car;,16 and if a coupler is rendered
inoperative due to the manner of loading, the fact that the declaration
fails to show that the only way to uncouple the cars was to go between, does
not make it insufficient.17 In United States v. Illinois Cent. R. Co., 101
C.C. A. 15, 177 Fed. 801, 804, the court said:

“We are not impressed by the contention of defendant that the facts
stated in the declaration do not make it appear that it was necessary to
go between the cars to effect an uncoupling, from the fact that such
act could be accomplished by getting on top of the car and removing
the lumber from over the lever. So long as the lumber was so loaded
‘as to project out over the uncoupling lever,’ and so as to ‘prevent the
operation of the uncoupling lever, * * * thus necessitating a man
or men going between the ends of said car * * * and the car ad-
jacent to couple or uncouple them,’ the automatic apparatus was wholly
inoperative, and the situation during the existence of that state of
facts was as much fraught with danger to the employee, and as much
within the mischief the statute was intended to prevent, as if the car
were not equipped with automatic devices.”

Negativing Exception in Proviso.—lIt is a settled rule that an excep-
tion created by a proviso or other distinct or substantive clause, whether
in the same section or elsewhere, is defensive, and need not be negatived
by one suing under the general clause, and the government in its complaint
or declaration is not required to negative the fact that the violations com-
plained of do not come within the proviso in § 6,18 relative to four-wheeled
cars, eight-wheel standard logging cars, or locomotives hauling such, when
exclusively used for transporting logs. In United States v. Atlantic, etc.,
R. Co. (D. C.), 153 Fed. 918, 920, affirmed in 94 C. C. A. 35, 168 Fed. 175,
the court said:

“Another ground urged in support of the demurrer is that the complaint
does not allege that the cars mentioned in the various causes of action
were not four-wheel cars or eight-wheel standard logging cars. The
Supreme Court of the United States in the case of Schlemmer v. Buf-
falo, etc., R. Co., 205 U. S. 1, 51 L. Ed. 681, 27 S. Ct. 407, says on that
point, Justice Holmes delivering the opinion: ‘A faint suggestion was
made that the proviso in § 6 of the act that nothing in it shall apply to
trains composed of four-wheeled cars was not negatived by the plaintiff.
The fair inference from the evidence is that this was an unusually

16. Effect of alleging necessity of go- 17. United States v. Illinois Cent. R.
ing between cars.—United States v. Co., 101 C. C. A. 15, 177 Fed. 801.
Denver, etc., R. Co, 90 C. C. A. 329, 18. Negative exception in proviso.—

163 Fed. 519. See ante, “Complete United States v. Denver, etc., R. Co.,
Equipment of Each Car,” § 231. 90 C. C. A. 329, 163 Fed. 519.
§§ 274-276 THE SAFETY APPLIANCE ACT. 570
large car of the ordinary pattern; but, further, if the defendant wished
to rely upon this proviso, the burden was upon it to bring itself within
the exception. The word “provided” is used in our legislation for many
other purposes besides that of expressing a condition. The only differ-
ence expressed by this clause is that four-wheeled cars shall be excepted
from the requirements of the act. In substance, it merely creates an
exception which has been said to be the general purpose of such
clauses.’ ”

§ 275. Plea or Answer.—As the only exceptions to the act are em-
bodied in the act itself and not in the enacting clause, if the defendant
wishes to avail itself of them they must be specially pleaded.1®

§§ 276-277. Actions for Damages—§ 276. Declaration or Pe-
tition.2°9—The courts of the country take judicial notice of the public acts
of Congress and it is unnecessary to specifically mention the safety appli-
ance act in a cause of action predicated thereon. It is sufficient if the plead-
ing contains facts which would suggest to a person familiar with such act
that its provisions had been violated.24_ In Voelker v. Chicago, etc., R. Co.
(C. C.), 116 Fed. 867, 871, though reversed on other grounds in 65 C. C. A.
226, 129 Fed. 522, it is said:

“As matter of pleading, it certainly cannot be said that, in order to base
a right of recovery on the provisions of the statute, it was necessary to
cite the statute or its provisions in the petition. The petition is set
words charged the defendant with negligence in having.and operating
a car upon which was a defective, worn-out, and inoperative coupler,
which would not couple by impact. Charging the defendant with neg-
ligence was charging that the company had not met or fulfilled the
duty imposed upon it by law with respect to having and keeping the
coupler upon the car in proper condition for use. It was not necessary,
nor, indeed, permissible, under the rules of pleading, that -the petition
should set forth the law which had been violated. It is not for one
moment supposable that the officers of the defendant company, or the
learned counsel representing it in this case, are not, and were not when
this action was commenced, fully aware of the provisions of the act of
congress of March, 2, 1893, * * * and therefore knew that as to
cars used in interstate traffic the obligations of the act of congress were
in force. * * * ‘Therefore, when the petition charged the defend-
ant with negligence with respect to the coupler upon the car, the de-
fendant must have known that, as the car was used in interstate traffic,
the act of congress would necessarily come into consideration in defin-
ing the obligations resting upon the defendant company.”

Thus where a complaint charged as the negligence of the defendant that

19. Plea or answer.—United States v. able cause, see ante, “Removal of

Atlantic, etc., R. Co. (D. C.), 153 Fed.
918, affirmed in 94 C. C. A. 35, 168 Fed.
175. See post, “Declaration or Peti-
tion,’ § 276. :

20 Declaration or petition—As to
sufficiency of petition to show remov-

Cause,” §§ 267-271.

21. Necessity to plead act—Voelker
v. Chicago, etc, R. Co. (C. C:), 116
Fed. 867; Kansas, etc., R. Co. v. Flippo,
138 Ala. 487, 35 So. 457; Missouri Pac.
R. Co. v. Brinkmeier, 77 Kan. 14, 93
Pac. 621.
571 § 276

PLEADING.

defendant used a car in interstate commerce with a defective coupler by
which he was injured, it must be construed as depending wholly on the fed-
eral statute when it contains no sufficient allegations of negligence irrespec-
tive of the statute.??

Pleading in Separate Counts—Hlection.—An action may be brought
under a state statute and the federal act when stated in separate counts and
a recovery had according as the proof discloses a liability under either one
of the other, but in such a case it is not proper to require the plaintiff to
elect upon which he will proceed, but to submit both to the jury to determine
under which count a liability has been proved, and to return their verdict
accordingly.28

Allegations of Negligence, Contributory Negligence and Assump-
tion of Risk.—Where there is shown the duty owing to plaintiff and a vio-
lation thereof by the defendant, in a failure to have cars equipped as re-
quired by the act, which resulted in plaintiff’s injury, it is unnecessary to
allege the manner in which the violation caused the injury.?4 And a decla-
ration .which charges a defendant with a failure to equip its cars as re-
quired will be construed to embrace a failure to keep them as required.?5
In connection with a claim that there was no allegation as to a defect in
the couplers that brought them within the scope of the statute, the follow-
ing from a petition: “Plaintiff avers that the coupler attached to said en-
gine and car would not couple automatically by impact, as required by
law; and, for the purpose of making said coupling, it became necessary for
plaintiff to stand upon the footboard of said engine, between said engine
and car, and to shove the knuckle of the coupler on said engine so as to
make the coupling as aforesaid,” is held sufficient to charge a non-compli-
ance with the act.28 Where the defect complained of in plaintiff’s petition
was a “foot board,” the fact that these appliances are referred to in the act
as “running boards,” will not render the complaint insufficient as not stating
a case under the Act when the defendant in its answer called it a “running
board” in one paragraph and in another a “foot board” and upon cross-ex-
amination of, the plaintiff seemed to use the terms interchangeably.”

‘Contributory negligence must affirmatively appear on the face of a com-

22, Presumption that case under act.
—Breske v. Minneapolis, etc., R. Co.,
115 Minn, 386, 132 N. W. 337.

23. Pleading in separate counts—
Election—Luken v. Lake Shore, etc.,
R. Co., 248 Ill. 377, 94 N. E. 175, 21
Am. & Eng. Ann. Cas. 82.

24, Allegation of negligence, contrib-
utory negligence and assumption of
risk.— Mobile, etc., R. Co. v. Bromberg,
141 Ala. 258, 37 So. 395, 400; Kansas,
etc., R. Co. v. Flippo, 138 Ala. 487, 35
So. 457.

As said in Georgia Pac. R. Co. v.
Davis, 92 Ala. 300, 9 So. 252, 25 Am.
St. Rep. 47, “Under. our system of

pleading, very general averments, little
short, indeed, of mere conclusions, of
a want of care and consequent injury,
leaving out the facts which constitute
and go to prove the negligence, meet
all the requirements of the law.” Kan-
sas, etc., R. Co. v. Flippo, 138 Ala. 487,
35 So. 457, 460.

25. Atlantic, etc., R. Co. v. Whitney,
65 Fla. 72, 61 So. 179.

26. San Antonio, etc., R. Co. v. Wag-
ner (Tex. Civ. App.), 166 S. W. 24, 29,
writ of error denied in 170 S. W. xviii,
no op. affirmed in 36 S. Ct. 482.

27. Bramlett v. Southern R. Co., 98
S. C. 319, 82 S. E. 501.
§ 276 THE SAFETY APPLIANCE ACT. 572

plaint in order to justify sustaining of a demurrer thereto for such cause;
and where the plaintiff avers in general terms that he was in the exercise
of due care when injured and the particular facts alleged do not contradict
this averment, the complaint is sufficient.2§

Where in a complaint brought under the act for injuries to plaintiff re-
sulting from his foot being caught in an unblocked frog in which it is alleged
that due to a pin being pulled from its socket a car could not be made to
couple automatically, and that the plaintiff went in front of the same in
order to adjust the coupler, and which further alleged that it was the de-
fendant’s custom, practice and mode of doing business to block all of its
frogs upon its lines, switches and side tracks which was known to the plain-
tiff and he relying thereon but in pursuit of his duties he could not observe
the frog by which his foot was caught and in consequence he was injured,
was sufficient to repel any claim that the accident was a result of an as-
sumed risk on the part of the plaintiff.?®

Allegations of Use in Interstate Commerce.—Prior to the amend-
ment of 1903, in order to state a cause of action under the act it was nec-
essary to allege that the car by which the plaintiff was injured, or the de-
cedent was killed, was used in moving interstate traffic, and an allegation
that the defendant railroad was engaged in interstate commerce,: without al-
leging that the car was so used was not sufficient.3° In Brinkmeier v. Mis-
souri Pac. R. Co., 224 U. S. 268, 56 L. Ed. 758, 32 S. Ct. 412, 413, the
court said:

“The petition, if liberally construed, charged that defendant was a com-
mon carrier engaged in interstate commerce by railroad; that the cars
in question were not equipped with couplers of) the prescribed type,
and that the plaintiff’s injuries proximately resulted from the absence
of such couplers; but there was no allegation that either of the cars was
then or at any time used in moving interstate traffic. The supreme
court of the state held that in the absence of such an allegation the
petition did not state a cause of action under the original act. We
think that ruling was right. The terms of that act were such that its

this car before this coupling was made
to comply with the federal statute.
* * * But no such case as is con-

28. Allegations showing contributory
negligence.—Grand Trunk, etc., R. Co.
v. Poole, 175 Ind. 567, 93 N. E. 26.

29. Showing assumption of risk.—
Grand Trunk, etc., R. Co. v. Poole, 175
Ind. 567, 93 N. E. 26.

30. Allegations of use in interstate
commerce. — Brinkmeier v. Missouri
Pac. R. Co., 224 U. S. 268, 56 L. Ed.
758, 32 S. Ct. 412, affirming 105 Pac.
221; Norman v. Southern R. Co., 119
Tenn. 401, 104 S. W. 1088.

“Tt is next insisted on behalf of
plaintiff that this car was used in in-
terstate traffic, and that the case falls
within the federal statute forbidding
the use of cars without automatic cou-
plers, and that defendant was negli-
gent in having its employees to handle

tended for is made by the declaration.
It is only alleged ingidentally that de-
fendant was a common carrier operat-
ing numerous lines of railroad ‘running
to divers places and points in and be-
yond the state of Tennessee.’ But
there is even no averment that the par-
ticular car referred to as defective was
being used in the carraige of interstate
traffic, and thus no notice is given de-
fendant that it will be required to meet
the case now contended for. The acts
of negligence averred are only those
referred to in another connection.”
Norman w. Southern R. Co., 119 Tenn.
401, 104 S. W. 1088, 1092.
573 PLEADING.

§ 276

application depended, first, upon the carrier being engaged in interstate
commerce by railroad, and, second, upon the use of the car in moving
interstate traffic. It did not embrace all cars used on the line of such a
carrier, but only such as were used in interstate commerce. Southern
R. Co. v. United States, 222 U. S. 20, 25, 56 L. Ed. 72, 32 S. Ct. 2.
The act was amended March 2, 1903, 32 Stat. at L. 943, chap. 976, U.
S. Comp. Stat. Supp. 1909, p. 1143, so as to include all cars ‘used on
any railroad engaged in interstate commerce,’ but the amendment
came too late to be of any avail to the plaintiff.”

But since this amendment, it is only necessary to allege that the car was
used upon a railroad engaged in interstate commerce, or in connection with
cars used in such commerce, #1 and not that it was actually engaged
therein.32

Waiver.—Where the defendant made no objection to a petition, on the
ground of its failure to show the interstate character of the railroad or of
the car, and evidence was introduced also without objection of the inter-
state character of both, the defendant was held to have waived his rights

-to question the sufficiency of the petition by not interposing a timely ob-
jection.38

Negativing Proviso.—The proviso in § 6, as to four-wheeled cars need
not be negatived by plaintiff. This is matter of defense to be pleaded.*4

Amendment of Pleading.—An amendment to a petition or declaration
is within the discretion of the trial judge, and is generally granted without
question when the substantial rights of the defendant will not be affected
thereby. This even to the extent of allowing an amendment to meet a vari-
ance in the proof when the defendant has made no objection35

But after the period of limitation for bringing the action has expired,
no amendment will be permitted when it is in effect the statement of a

81. Brinkmeier v. Missouri Pac. R. traffic. The law requires that it be

Co., 224 U. S. 268, 56 L. Ed. 758, 32
S. Ct. 412.

82. Felt v. Denver, etc., R. Co. 48
Colo. 249, 110 Pac. 215, 21 Am. & Eng.
Ann. Cas. 379.

“The petition alleged that appellant
was engaged in interstate and intra-
state commerce, and that it ‘used on
said railroad in interstate commerce
and intrastate commerce a certain en-
gine and a certain car; and it became
and was the duty of plaintiff then and
there to couple the aforesaid engine
and car together.’ The allegation was
sufficient to show that appellant was
engaged in interstate commerce.” San
Antonio, etc., R. Co. v. Wagner (Tex.
Civ. App.), 166 S. W. 24, 29, writ of
error denied in 170 S. W. xviii, no op.,
affirmed in 36 S. Ct. 484.

“It is not necessary, in actions of
this character, to allege or prove that
a car is actually loaded with interstate

equipped with automatic couplers at
all times, until it reaches its destina-
tion, as fixed by the order of the com-
pany at the time it starts on its inter-
state journey.” Felt v. Denver, etc.,
R. Co., 48 Colo. 249, 110 Pac. 215, 216,
21 Am. & Eng. Ann. Cas. 379.

33. Waiver.—Chicago, etc., R. Co. v.
Voelker, 65 C. C. A. 226, 129 Fed. 522,
7o L. R. A. 264. See post, “Variance,”
§ 284.

34. Negativing proviso. Schlemmer
v. Buffalo, etc., R. Co., 205 U. S. 1, 51
L. Ed. 681, 27 S. Ct. 407.

35. Amendment of pleading.—Chi-
cago, etc., R. Co. v. Voelker, 65 C. C.
A. 226, 129 Fed. 522, 70 L. R. A. 264.
See post, “Variance,” § 284.

As to review of right to amend by
United States Supreme Court, see post.
Rt dao of Highest State Courts,”

291.
THE SAFETY APPLIANCE ACT. 574

§ 276

new cause of action.36 As to when an amendment amounts to the state-
ment of a new cause of action the authorities are in conflict, 37 but one
point may be considered settled and that is that a declaration stating a cause
of action at common law if amended to bring it under a statute is the
bringing of a new cause of action, not permissible after the limitation for
such statutory action has expired.38 In Allen v. Tuscarora Valley R. Co.,
229 Pa. 97, 78 Atl. 34, 35, 30 L. R.'A., N. S., 1096, the court said:

“In support of the contention that, the amendment did not change the
cause of action, the learned counsel for the plaintiff claims that the
language of the original statement was not changed in any way by the
amendment which, it is alleged, consisted simply of an addition to the
original statement and directed attention to the act of congress, and its
supplement as being applicable to the facts of the case. But, it will be
observed, in the amendment there was a departure, not only from the
facts as laid in the original statement, but also frofn the law as applica-
ble to the facts in the original statement. In other words, there was a
departure, not only from fact to fact, but from law to law. A de-
parture in pleading may be eithér in the substance of the action or de-
fense, or the law on which it is founded. 2 Saunders on Pleading and
Evidence, 807. The original statement, it is true, averred the injuries
of the plaintiff and the alleged negligent act 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 tests in determining
whether the amendment introduces a different cause of action. Wa-
bash R. Co. v. Bhymer, 214 Ill. 579, 73 N. E. 879. It is apparent that
without this amendment the act of congress could have had no
place in the case, and could not have been invoked to deprive the com-
pany of its defense that the plaintiff assumed the risks or dangers of
his employment.39 * * * It is also true that if, as claimed by the
plaintiff, all the facts necessary to sustain a recovery on the amended
were set forth in the original statement, the amendment would still be
a change or departure from the original statement, not from fact to
fact, but from law to law, from an action founded on the common law
to one founded on a statute abrogating the common law, which is
equally effective to prevent an allowance of the amendment. In such

86. After period of limitations.—
Brinkmeier v. Missouri Pac. R. Co., 81
Kan. 101, 105 Pac. 221, affirmed in 32
S. Ct. 412, but question not considered
as not federal. Allen wv. Tuscarora
Valley R. Co., 229 Pa. 97, 78 Atl. 34,
30 L. R. A., N. S., 1096.

37. Under Employers’ Liability Act,
see “Pleading,” Chap. XXI.

38. Changing from law to law.—Al-
len v. Tuscarora Valley R. Co., 229
Pa. 97, 78 Atl 34, 30 L. R. A, N.S,
1096. See also, Nichols v. Chesapeake,
etc., R. Co., 115 C. C. A. 601, 195 Fed.
913.

39. “If, however, all the facts neces-
sary to bring the case within the act
of congress had been included in the
original statement, it would have been
insufficient as a statement under the
act without a reference to the statute.
Bolton v. Georgia Pac. R. Co., 83 Ga.
659, 10 S. E. 352.” The above state-
ment which occurs at this point in the
case is true only to the extent that
when a foreign statute is pleaded it is
necessary that it be referred to in the
declaration, but the Act of Congress,
as seen before, it is not necessary to
plead.
575 PLEADING. § 276°

case the plaintiff bases his right of recovery upon other and different
law, instead of other and different facts, and it constitutes a departure
from the original cause of action. Union Pac. R. Co. v. Wyler, 158 U.
S. 285, 39 L. Ed. 983, 15 S. Ct. 877; Boston, etc., Railroad v. Hurd,
47 C. C. A. 615, 108 Fed. 116, 56 L. R. A. 193.”

And also, where the plaintiff in instituting the proceedings attempts to
allege a cause of action under the statute but omits some essential allegation
in the pleading, a subsequent amendment for the purpose of curing this
defect states a new cause of action.4° In Brinkmeier v. Missouri ‘Pac. R.
‘Co., 81 Kan. 101, 105 Pac. 221, affirmed but point not considered in 32 S.
Ct. 412, the court said:

“The petition contained no allusion whatever to interstate commerce, ex-
cept in a statement that the defendant was a corporation doing business
as a railway company ‘as a common carrier into and through the coun-
ties of Sedgwick and Reno in the state of Kansas and into the states
of Colorado, Nebraska, Missouri, Arkansas, Texas, Oklahoma, and In-
dian Territory.’ This was a sufficient allegation that the company was
engaged in interstate commerce, and warrants the inference that the
car in question was used on a railroad over which interstate commerce
was conducted. (Therefore the facts pleaded would have constituted
a good cause of action under the letter of the law as it now stands.
But, prior to the amendment of 1903, the statute did not apply to any
car excepting those ‘used in moving interstate traffic.’ There was noth-
ing in the petition to suggest, even remotely, that the car the defective
equipment of which caused the plaintiff’s injury was so used. There-
fore, as decided at the former hearing, the petition stated no cause
of action under the federal statute. It is urged, however, that the
court should have allowed an amendment. The statute of limitation
had barred an action based upon the act of congress before leave to
amend was asked. It was then too late for such an amendment, under
repeated decisions of this court, of which the earliest is Atchison, etc.,
R. Co. uw. Schroeder, 56 Kan. 731, 44 Pac. 1093, where it was said:
‘A plaintiff cannot deprive a defendant of the benefit of the statute
of limitations by ingrafting upon a case commenced in time another
cause of actiori barred by the statute. * ©*'.* The-statute of’ limi-
tations, as applied to such new cause of action, treats the action as
commenced when the amendment was incorporated into the pleadings,
and not as begun when the action itself was commenced.’ (Syllabus.)”

Same—Waiver and Estoppel.—However, should the defendant fail to
object to one amendment which serves to bring the action under the statute
after the limitation has expired, but only objects to a second amendment,
he will be deemed to have waived his rights to make such objection.4! In
Nichols v. Chesapeake, etc., R. Co., 115 IC. C. A. 601, 195 Fed. 913, 917,
the court said:

‘

40. Curing defects in petition—Brink- 41. Same—waiver and estoppel.—See
meier v. Missouri Pac. R. Co., 81 Kan. Nichols v. Chesapeake, etc., R. Co., 115
,101, 105 Pac. 221, affirmed on other C. C. A. 601, 195 Fed. 913.
grounds and point not considered. in ‘i
32 S. Ct. 412.
§§ 276-277 THE SAFETY APPLIANCE ACT. 576

“Tt is further to be noted that, when the defendant came to plead the
statute of limitations, it raised that objection against ‘the cause of action
relied upon by the plaintiff in the amendment filed on December 3,
1907,’ and insisted that the year had elapsed “before the filing of such
amendment.’ It did not allege the existence of the bar at the time of the
filing of the amendment of 1905, although this amendment clearly
stated the cause of action based upon the safety appliance act.”

But a stipulation will not operate to bring a case under the act, after the
period of limitations has expired, when the original pleadings were in-
sufficient for that purpose. The issues as made cannot be thus enlarged.#?
In Brinkmeier v. Missouri Pac. R. Co., 81 Kan. 101, 105 Pac. 221, 222,
affirmed in 32 S. Ct. 412, the court said:

“In 1905 a stipulation was signed and filed in the case stating facts show-
ing that the car at the time of the injury was being used in interstate
commerce, and this is relied upon as supplying the omission of the pe-
tition. ‘The stipulation expressly recited that it was made to avoid the
necessity of taking depositions, adding that it might be read in lieu
thereof, but that its statements should be subject to objections as to
competency and relevancy. An agreement so made could not enlarge
the issues made by the pleadings. Its purpose, as clearly indicated by
its recitals, was merely to obviate the inconvenience and expense of
taking depositions. It had no functions except as a substitute for the
testimony of witnesses, and even if made before the statute of limita-
tion had run, could not have operated as a waiver of any defect in the
petition.”

§ 277. Plea or Answer.—Pleading Exceptions.—lI{i the defendant
seeks to avail itself of any provisions of the act which would serve to de-
feat an action brought thereunder, they must be specially pleaded, as all
such are embodied in the statute and not contained in the enacting clause.*
However where the defendant in its answer pleaded facts showing that the
law had been complied with, but the answer was stricken out, it is not error
when the same facts are admitted under a general denial.*4

Contributory Negligence.—Contributory negligence is a defense under
the act, 45 but a plea setting up the same must allege in what the contribu-
tory negligence consisted, and as it cannot be affirmed to be negligence per
se for a brakeman to go in between cars and an engine to make a coupling;
so when this is in effect all that is alleged, sustaining a demurrer thereto is
not error.46 Where under defendant’s general plea of contributory negli-
gence, opportunity was had of proving any phase of such, it was not error

42, Brinkmeier v. Missouri Pac. R. (Tex. Civ. App.), 166 S. W. 24, writ of
Co., 81 Kan. 101, 105 Pac. 221, affirmed error denied in 170 S. W. xviii, no op.,
in 32 S. Ct. 412. Point not considered affirmed in 36 S. Ct. 482.
on appeal for want of federal question. 45. Contributory negligence. — See

43. Pleading exceptions.—Schlem- ante, “Contributory Negligence,” Chap.
mer v. Buffalo, etc, R. Co., 205 U.S. XXXVI.

1, 51 L. Ed. 681, 27 S. Ct. 407. 46. Contributory negligence—Plea

44, Striking answer—when harmless. showing facts.—Kansas, etc., R. Co. v.
—San Antonio, etc. R. Co. v. Wagnér Filippo, 138 Ala. 487, 35 So. 457.
577 PLEADING. § 277

to have sustained a demurrer to a special plea setting up contributory neg-
ligence.47

Assumption of Risk.—This statute in terms provides that in cases aris-
ing under it from a failure to comply with its provisions the employee shall
not be deemed to have assumed the risk of the employment, and pleas set-
ting up this defense in an action thereunder may well be stricken on motion
as being frivolous.48

47. Sustaining demurrer to special 48. Assumption of risk—Striking as
plea—Harmless error.—Mobile, etc., R. frivolous.—Mobile, etc., R. Co. v. Brom-
Co. v. Bromberg, 141 Ala. 258, 37 So. berg, 141 Ala. 258, 37 So. 395; Kansas,
395. etc, R. Co. v. Flippo, 138 Ala. 487,

35 So. 457.

Fed Act—37
CHAPTER XLI.

EvIDENCE.

1. Admissibility, § 278.
2. Testimony of Inspectors, § 279.
3. Relative Value of Positive and Negative Testimony, § 280.
4. Burden and Sufficiency of Proof, §§ 281-283.
a. To Sustain Recovery of Penalty, § 281.
b. To Sustain Recovery of Damages, § 282.
c. To Sustain Defense, § 283.
5. Variance, § 284.

§ 278. Admissibility.—The refusal to admit testimony of the plaintiff
is harmless where there is uncontradicted evidence to the same effect.}

Introducing Act as Evidence.—Defendant cannot complain of the in-
troduction in evidence by the plaintiff of the act of congress requiring rail-
roads engaged in interstate commerce to equip their cars with automatic
couplers. The courts take judicial knowledge of what this act embraces,
and therefore it was immaterial whether it was introduced in evidence or
not.?

Of Models.—Where, in a trial there is a question as to complicated ma-
chinery, it is competent to use any model or drawing that may illustrate the
condition of such machinery so as to give the jury a clear and distinct idea
as to the nature and character of the defect in order that they may intelli-
gently deal with the question that is submitted for their consideration. And
the action of a court in permitting the use of models merely for the pur-
pose of illustration was not prejudicial to the rights of the defendant. In
Norfolk, etc., R. Co. v. United States, 112 C. C. A. 46, 191 Fed. 302, 305,
37 L. R. A., N. S., 976, the court said:

“The model in question was used merely for the purpose of aiding the
court and the jury in ascertaining as to whether there was any defect
in the coupler, and it was admitted by the government that this model
was not exactly like the coupler attached to the car in question. It was
not introduced in evidence, but the court permitted the use of the same
to illustrate the condition of the coupler just as maps and drawings are
used in the trial of ejectment suits.”

1. Refusal—Harmless_ error.—Chi- dence.—No prejudicial misconduct

cago, etc. R. Co. v. Walters, 217 III.
87, 75 N. E. 441.

2. Act as evidence.—Mobile, etc., R.
Co. v. Bromberg, 141 Ala. 258, 37 So.
395.

8. Use of models.—Norfolk, etc., R.
Co. v. United States, 112 C. C. A. 46,
191 Fed. 302, 37 L. R. A, N. S., 976.

Jurors examining models not in evi-

578

available to defendant is found in the
fact that two jurors saw other couplers,
which were permitted to remain in an
anteroom to the courtroom during the
trial; the court and the attorneys for
defendant knowing of their presence
and possibility of being observed by
jurors. Burho v. Minneapolis, etc., R.
Co., 121 Minn. 326, 141 N. W. 300.
579 EVIDENCE. § 278

Expert Testimony.—An expert trainman may be asked, at the trial of
a case under the safety appliance acts, as to the condition of a car coupler
in question, and as to what was necessary in order to operate that coupler,
as the mode of operation of automatic coupling mechanism and the effect
of various conditions thereof are proper subjects for expert testimony,* and
a witness who has worked several years as a brakeman is qualified as an
expert and his testimony that a coupler in ordinary repair may be closed
with the foot as well as the hand which might be taken as matter of fact
learned from experience, is not objectionable as a conclusion.5

But whether the openings in the buffer on the ends of cars afforded the
security intended by the act of congress in requiring handholds and grab
irons, was not the subject of expert testimony. The personal inspection of
such openings by sensible jurors was a safer guide to the truth in regard to
the matter than the mere opinion of witnesses.6 And also, where the dec-
laration charges the defendant with a failure to equip a car with an auto-
matic coupler which would couple it automatically with other cars by impact,
it is error to permit a witness to answer a question as to whether or not a
coupler in which the lever would not lift the pin out of the coupling would
couple automatically by impact. Such a question calling for a conclusion
by the witness as to the ultimate fact which the jury were impaneled to
try.7

Use in Interstate Commerce.—Testimony of defendant’s special agent
employed to investigate an accident, is admissible and sufficient to show that
a car was used in interstate commerce when he testified that a car was coming
from New York to a point in Pennsylvania. If hearsay it was not objected
to.8 Where notice was given to the attorney for the railroad company to
produce upon the trial the original waybills which accompanied the cars, and
the attorney denied all knowledge of them, and they were not produced, im-
pression copies made by an agent of defendant taken from the records in his
office are competent as an admission of fact by the defendant.2 In Louis-

4, Expert testimony.—Wabash R. 166, 201 Fed. 836, 844, affirmed in 34

Co. v. United States, 93 C. C. A. 393,
168 Fed. 1.

5. Grand Trunk, etc., R. Co. v. Lind-
say, 120 C. C. A. 166, 201 Fed. 836,
affirmed in 34 S. Ct. 581. See also,
San Antonio, etc., R. Co. v. Wagner
(Tex. Civ. App.), 166 S. W. 24, 26,
writ of error denied in 170 S. W.
xviii, no op., affirmed in 36 S. Ct. 482.

“Automatic couplers, like buffers,
switches, frogs, cattle guards, spark
arresters, and other railroad machines
and appliances, are not to be supposed
to come so fully within the knowl-
edge of average jurymen that experts
may not properly be allowed to tes-
tify respecting their nature, operation,
and normal condition.” Grand Trunk,
etc. R. Co. v. Lindsay, 120 C. C. A.

S. Ct. 581.

6. Spokane, etc., R. Co. vw. United
States (U. S.), 36 S. Ct. 668, affirm-
ing the same point in Spokane, a
R. Co. v. United States, 127 C.

61, 210 Fed. 243.

7. Chicago, etc., R. Co. v. Walters,
217 Ill. 87, 75 N. E. 441.

Though the question was held harm-
less in that the answer did not state
a conclusion but merely facts proper
to go to the jury. Chicago, etc. R.
Co. 7. Walters, 217 Ill. 87, 75 N. E.
441.

8. Use in interstate commerce. —
Schlemmer v. Buffalo, etc., R. Co., 205
U. S. 1, 51 L. Ed. 681, 27 S. Ct. 407.

9. Same—Records.—Louisville, etc.,
R. Co. v. United States, 108 C. C
326, 186 Fed. 280.
§ 278 THE SAFETY APPLIANCE ACT. 580

ville, etc., R. Co. v. United States, 108 C. C. A. 326, 186 Fed. 280, 284, the
court said:

“A witness named Johnson was called by the government, and testified
that he was an agent of the railroad company at Paris, and that it was
his duty in August, 1908, to oversee the loading and unloading of freight,
locking up cars and billing them out; that he kept a record of the move-
ment of cars at that station and of the origin and destination of freight
passing through it; that he kept a record, made under his supervision,
of the contents of car 92920 on August 10, 1908; and that that record
was preserved in his office. He produced an impression copy of an
entry of the waybill book, a part of such records. It was offered in
evidence, and admitted against the defendant’s objection that it was ‘not
the best evidence of what the car contained.’ The objection was over-
ruled, and the defendant excepted. The impression copies contained
entries of freight in car 92920 consigned to various points in Alabama,
Illinois, and Tennessee. Proof of what the car contained might have
been made by the original waybills. But they were not the only compe-
tent evidence of the facts. They were not contractual instruments be-
tween these parties, and were not the necessary proof of the’ facts
which they might have a tendency to prove. An admission of the facts
made by the defendant would be competent evidence to prove them,
independently of the waybills. The record kept and preserved by the
agent at Paris employed for the purpose by his company were compe-
tent, though doubtless not incontestible, evidence to prove an admission
of the fact by the railroad company. For this purpose, it would not
be necessary to establish all the necessary conditions of proof which
would be required if the railroad company were offering these records
for some self-serving purpose of its own. ‘These records were kept for
the very purpose of giving necessary information on which the company
itself would rely. It is proper to add that the objection was not aimed
to the circumstance that the papers offered were not the records of the
company’s office, and were only impressions of them, but was directed
to the point that they were secondary evidence of the waybills.”

Custom.—Evidence of the custom generally used by railroad men in
coupling and uncoupling slowly moving cars, is admissible upon the ques-
tion of contributory negligence of the plaintiff in order to determine whether
the care used by him was such as generally prevailed among employees
under like circumstance.?°

Instructions to Employees.—Instructions given an employee by a fore-
man when he commenced work are admissible.11

Prior Good or Bad Condition.—Where it is alleged that cars were de-
fective at a certain point, evidence is admissible to show that at another
point only thirty-seven miles away, an inspector found them in repair, and
the repairs that had been there made on them. Objection on the ground of

10. Custom—To establish contribu- 11. Instructions to employees. —
tory negligence—Grand Trunk, etc., Grand Trunk, etc, R. Co. v. Poole,
B Co. v. Poole, 175 Ind. 567, 93 N. 175 Ind. 567, 93 N. E. 26.

. 26.
581 EVIDENCE. 8§ 278-279
immateriality not being sustainable.12 And the material slips made by a work-
man who repaired cars which set forth the specific repairs made upon them,
and which are verified by his oath are permissible evidence of the character
of the defects in the cars repaired.18

That a defect existed at another time and place than that charged in
the declaration in an action for a penalty, cannot be shown.1# In Norfolk,
etc., R. Co. v. United States, 112 C. C. A. 46, 191 Fed. 302; 306, 37 L. R.
A., N. S., 976, the court said:

“This evidence, it appears, relates to a time and place different from that
alleged in the declaration, and we cannot understand upon what theory
it could have been offered as having any bearing whatever upon the is-
sues involved in this controversy. In the first place, there is nothing to
indicate what would have been the witness’ answer, but in any event
this testimony would not be competent. The witness was being cross-
examined, and it was purely within the discretion of the court as to
whether he should be required to answer the question, inasmuch as it
did not tend to throw light upon the issues raised by the pleadings, and
we think the court very properly excluded the same.”

But in an action for injuries, evidence is admissible to show that two days
after an accident upon an examination of a coupler claimed to be defective,
it was so found.!

§ 279. Testimony of Inspectors.—The government has a right to
employ especial agencies to ferret out and secure testimony to convict those
who violate the laws of the land. If this were not true, many would escape
the penalties of the law, and go unwhipt of justice. So, too, the defendant
could not operate its trains without the employment of men necessarily re-
quired to testify as witness. But in considering the testimony of witnesses
the jury should not give either more or less weight to the testimony of any
witness because of the fact that such witness testifies on behalf of the gov-
ernment, or on behalf of the railroad company, but the jury should give to
the testimony of each witness that weight which in its judgment it is entitled
to from all the facts and circumstances in the case."

12. Prior good condition.—United
States v. Rio Grande, etc., R. Co., 98 775
C. C. A. 293, 174 Fed. 399.

18, Of repairs—United States v. >You are the judges, and the sole

‘Rio Grande, etc. R. Co., 98 C. C. A.
293, 174 Fed. 399.

14. Defective condition.—Norfolk,
etc, R. Co. v. United States, 112 C.
C. A. 46, 191 Fed. 302, 37 L. R. A,
N. S., 976.

15. Lucas v. Peoria, etc., R. Co., 171
Ill. App. 1.

16. Testimony of inspectors. —
United States v. Central, etc., R. Co.
(D. C.), 157 Fed. 893; Norfolk, etc.,
R. Co. v. United States, 101 C. C. A.
249, 177 Fed. 623; United States v. Chi-

judges, of the credibility of the sev-
eral witnesses who have testified be-
fore you, and of the weight that shall
be given to the testimony of each.
This is to be determined by you
largely from the manner in which the
witnesses have testified before you,
their appearance when testifying, their
interest, if any, or lack of interest, in
the result of this controversy, their
knowledge or lack of knowledge or
means of knowing the facts about
which they have testified, and all other
matters appearing in the evidence
§§ 279-280 THE SAFETY APPLIANCE ACT. 582

The inspectors of the government inspecting to secure evidence of viola-
tion of the act are not required to inform the employees of the railroad
company, when they made the inspection of cars, of the defects in the ap-
pliances, if any, they discovered; and their testimony should not be dis-
credited solely because they did not so inform them.17 The failure of an
inspector to make himself known when the inspection is made to secure
evidence of violations of the act, comes within the exception to the rule re-
quiring him to do so when making other inspections, and on a prosecution
for violation, such rule is inadmissible in evidence as not bearing on the
issues. And the evidence showing him to have been acting within the ex-
ception, it would be inadmissible even to impeach him.18

§ 280. Relative Value of Positive and Negative Testimony.—
Positive testimony is to be preferred to negative testimony, other things be-
ing equal; but where it was the duty of an inspector on the part of the rail-
road company to inspect cars, and he says that he did inspect the cars that
came in and did not see certain defective appliances, that is not such nega-
tive testimony that it should not receive the same consideration, other things

being equal between the witnesses, as positive testimony.!®

In Norfolk,

etc., R. Co. v. United States, 101 C. C. A. 249, 177 Fed. 623, 630, the court

said:

“The evidence of the company’s inspector was not negative.

It is to be

remembered that he was employed by the company for the express pur-

which may affect or bear upon the
credibility of the witnesses or the
weight that shall be given to this tes-
timony. You should not discredit the
testimony of any witness solely be-
cause he is in the employ of either
the government as an inspector of rail-
road trains or cars, or in the employ
of the defendant railroad company;
but you will determine the cred-
ibility of such witness and the weight
to be given to the testimony of each
as I have already said to you, and,
when you have determined that, then
you will determine where the greater
weight of the testimony is upon these
different questions of fact about which
they have testified before you.” United
States v. Chicago, etc, R. Co. (D. C.),
162 Fed. 775, 779.

Instructions which told the jury that
the evidence of the inspector of the
company, whose express duty it was
to inspect all cars coming into his
yard with a view to discover and re-
port defects in safety appliances, and
who has testified that in discharge of
that express duty he did inspect a par-
ticular car and found no defect in its
coupling device, could only be con-
sidered “in so far as it tends to contra-
dict” the testimony of the government

inspectors; that such evidence could
only “be considered as tending to con-
tradict the evidence of the government
on that point” (that is, whether a defect
in the coupling device existed or not);
and that such evidence was negative
as to the inspection, while that given
by the government inspectors was pos-
itive, is error. They should not have
been given for these reasons: First,
because they held the evidence to be
solely contradictory in character; sec-
ond, because they tended to give un-
due weight to the evidence of the gov-
ernment inspectors and, third, because
the evidence of the company’s in-
spector was not negative but positive.
Norfolk, etc., R. Co. v. United States,
101 C. C. A. 249, 177 Fed. 623, 629.

_1%. Failure to make self known as
discrediting—United States v. Chi-
cago, etc., R. Co. (D. C.), 162 Fed. 775.

18. Norfolk, etc., R. Co. v. United
States, 112 C. C. A. 46, 191 Fed. 302,
37 L. R. A, N.S. 976.

19. Relative value of positive and
negative testimony.—Norfolk, etc., R.
Co. v. United States, 101 C. C. A.
249, 177 Fed. 623; United States v. Bal-
timore, etc. R. Co. (D. C.), 170 Fed.
456.
583

EVIDENCE.

§§ 280-281

pose of inspecting cars and discovering and reporting these and other
defects; that he has testified that in discharge of this express duty he
inspected this train and this particular car in question; that he lifted
all the rods or levers to see if they were in condition from one end of
the train to the other, always in accord with a fixed practice of his in-
spection; and that he found no defect in the coupling device in ques-

tion.

This was positive evidence of a negative fact.”

§§ 281-283. Burden and Sufficiency of Proof—§ 281. To Sus-
tain Recovery of Penalty.—In order for the government to make out a
case to recover for penalties it is only necessary to prove the use of the
vehicle upon a railroad of a common carrier engaged in interstate commerce,
or that it was used in connection with the other vehicles of a railroad so en-

gaged, 2° and that it was not equipped as required by the act.?!

How-

ever, it is to be remembered that actions brought by the government to re-
cover penalties are not criminal but are in the nature of civil proceedings, °?
and though upon the government rests the burden of proof, 7% it is not
bound to establish its case to a reasonable certainty or beyond a reasonable

doubt ; 24

but it is only necessary that it establish to the reasonable satis-

faction of the jury, by a preponderance of the evidence, that the statute has

been violated.2°
170 Fed. 542, 546, the court said:

20. Burden and sufficiency of proof
—To sustain recovery of penalty. —
As to when it is so sued, see ante,
“Railroad Engaged and Vehicles Used
in Interstate Commerce,’ Chap.
XXXI.

21. As to when it is not so equipped,
see ante, “Instrumentalities to Be
Equipped and Sufficiency of Equip-
ment,’ Chap. XXXII.

22. See ante, “Proceedings for Pen-
alty,” Chap. XXXVII.

23. United.States v. Montpelier, etc.,
Railroad (D. C.), 175 Fed. 874; United
States v. Pennsylvania R. Co. (D. C.),
162 Fed. 408, 410; United States wv.
Southern Pac. Co. (D. C.), 167 Fed.
699; United States v. Philadelphia, etc.,
R. Co. (D. C.), 160 Fed. 696; United
States v. Central, etc, R. Co. (D. C.),
157 Fed. 893.

“The United States has the burden
of proof upon it in order to make out
its case. It has the burden of proof
from the beginning to the end of it.
It never shifts. It is bound to make
out its case, and it is bound to make
it out by evidence that is clear and
satisfactory to the jury. That is the
obligation that is laid upon it. Not
by evidence which is of that high de-
gree which we describe when we say
evidence beyond reasonable doubt;
but it is bound to make it out by such
evidence as is clear and satisfactory,

In United States uv. Illinois Cent. R. Co., 95 C. C. A. 628,

and by that degree of proof to make
out all the elements which go to con-
stitute the charge. If the United
States has failed to come up to that
standard, then it has failed in this case
as to one or more or all of these par-
ticular charges, because that obliga-
tion rests upon it.” United States v.
Philadelphia, etc., R. Co. (D. C.), 160
Fed. 696, 699.

24. United States v. Central, etc., R.
Co. (D. C.), 157 Fed. 893; United
States v. Philadelphia, etc., R. Co. (D.
C.), 160 Fed. 696; United States v. Chi-
cago, etc, R. Co. (D. C.), 162 Fed.
775; United States v. Illinois Cent. R.
Co. 95 C. C. A. 628, 170 Fed. 542;
United States uv. Chicago, etc., R. Co.
(D. C.), 173 Fed. 684; Louisville, etc.,
R. Co. v. United States, 98 C. C. A.
664, 174 Fed. 1021, affirming 162 Fed.
185; United States v. Baltimore, etc.,
R. Co. (D. C.), 170 Fed. 456.

Contra——In United States. v. Louis-
ville, etc., R. Co. (D. C.), 156 Fed. 195,
the court said, “the testimony fails to
show beyond a reasonable doubt the
existence of every element necessary
to constitute the offense alleged in the
petition.”

25. Preponderance of evidence only
required.—United States wv. Central,
etc, R. Co. (D. C.), 157 Fed. 893;
United States v. Philadelphia, etc., R.
Co. (D. C.), 160 Fed. 696; United
§ 281 THE SAFETY APPLIANCE ACT. 584+

“We have referred to instances where, in the enforcement of civil lia-
bilities, penalties incurred by wrongful neglect to discharge them are
.also enforced; and yet we are not aware that it has ever been supposed
that the rule of the criminal law respecting the degree of proof was
to be imported into the trial of the civil action. The giving of such a
remedy as that specified by the sixth section, without any restriction or
condition, imports an action at law with the customary incidents of such
an action. Being a remedy which does not touch the person, there is
no such urgency for protecting him as to require that the rules for
the conduct of a civil suit should be displaced and those of a criminal
proceeding be taken in. We think the law does not sanction such an
anomalous compound in legal proceedings. If, indeed, there be no
substantial distinction between a case where the government retains the
fine and one where it is given to a private party in excess of his -other-
wise legal right, there are decisions in point which hold that where the
suit is a civil action for a penalty the evidence is sufficient if it pre-
ponderates, and need not be such as to remove all reasonable doubt.”

By a preponderance of evidence is not meant the greater number of wit- -

nesses, but it means that evidence which is the most satisfactory and is en-
titled to the greatest weight.*® Defining to the jury a preponderance of evi-

States v. Lehigh Valley R. Co. (D.
C.), 162 Fed. 410; United States w.
Philadelphia, etc., R. Co. (D. C.), 162

Louis, etc, R. Co. v. United States,
106 C. C. A. 136, 183 Fed. 770, 771.

“This action is a civil action, al-

Fed. 405; United States 7. Pennsylva-
nia R. Co. (D. C.), 162 Fed. 408;
United States 7. Atchison, etc., R. Co.
(D. C.), 167 Fed. 696; United States v.
Southern Pac. Co. (D. C.), 167 Fed.
699; United States v. Boston, etc., R.
Co. (D. C.), 168 Fed. 148; United
States v. Illinois Cent. R. Co., 95 C.
C. A. 628, 170 Fed. 542; United States
v. Baltimore, etc., R. Co. (D. C.), 170
Fed. 456; United States v. Southern
R. Co. (D. C.), 170 Fed. 1014; Louis-
ville, etc, R. Co. 7. United States, 98
Cc. C. A. 664, 174 Fed. 1021, affirming
162 Fed. 185; United States v. Mont-
pelier, etc., Railroad (D. C.), 175 Fed.
874; United States v7. Baltimore, etc.,
R. Co. (D. C.), 176 Fed. 114, affirmed
in 107 C. C. A. 586, 185 Fed. 486; St.
Louis, etc., R. Co. v. United States,
106 C. C. A. 136, 183 Fed. 770; United
States v. Chicago, etc., R. Co. (D. C.),
162 Fed. 775; United States vw. Ne-
vada County, etc. R. Co. (D. C.), 167
Fed. 695; Norfolk, etc, R. Co. v.
United States, 112 C. C. A. 46, 191 Fed.
302, 37 L. R. A, N. S., 976.

“On reason and weight of authority
it is considered that actions to re-
cover the statutory penalties for vio-
lation of the safety appliance law are
so far civil in their nature that the
strict construction applicable in crim-
inal proceedings is not required, and
the United States may recover upon
the preponderance of evidence.” St.

though for penalties, and there is no
greater burden of proof imposed upon
the United States than upon the plain-
tiff in any other civil action.” United
States wv. Baltimore, etc., R. Co. (D.
C.), 176 Fed. 114, 116, affirmed in 107
C. C. A. 586, 185 Fed. 486.

“Under the safety appliance act the
government is only required to prove
by a fair preponderance of the evi-
dence the existence of the defects as
set out in the complaint.” United
States v. Atchison, etc, R. Co. -(D.
C.), 167 Fed. 696, 697.

“Every material fact must be proved
by a fair balance of evidence to enti-
tle the plaintiff to recover the penalty
prescribed by law.” United States v.
iMontpelier, etc., Railroad (D. C.), 175
Fed. 874, 875.

“The burden of proof is on the gov-
ernment to show you by clear and sat-
isfactory evidence that it [coupler]
was out of otider at one or both ends,
and if the government has not so sat-
ised you, then your verdict must be
for the defendant.” United States v.
Pennsylvania R. Co. (D. C.), 162 Fed.
408, 410. See in accord United States
v. Philadelphia, etc, R. Co. (D. C.),
162 Fed. 405; United States v. Lehigh
Valley R. Co. (D. C.), 162 Fed. 410.

26. Meaning of preponderance. —

“United States v. Southern Pac. Co. (D.

C.), 167 Fed. 699, 703; United States
585 EVIDENCE. § 281

dence in United States v. Boston, etc., R. Co. (D. C.), 168 Fed. 148, 151,

the court said:

“A preponderance of the evidence in this case is sufficient ; and what does

that mean? It means that after balancing and considering the evidence
on the one side and on the other you are not left in doubt, but that you
find that the evidence for the government outweighs the evidence
brought here to meet it. If your minds, after weighing and consider-
ing the evidence on both sides, are left in doubt, if they are left equally
balanced on the question, there is no preponderance of the evidence;
and in that event, as I have told you, your verdict should be for the de-
fendant. It is necessary, in order to find a verdict for the plaintiff,
that the evidence for the government should outweigh that for the de-
fendant.”

Of Use in Interstate Commerce.—Where it was contended that the
only evidence to show the transportation of freight from points beyond

the state was heresay and insufficient to sustain the judgment, in Pacific
Coast R. Co. v. United States, 98 C. C. A. 31, 173 Fed. 448, 452, the court

said:

“The evidence consisted of bills of lading, waybills, orders for and rec-

ords of changes in destination, and receipts for freight. A stipulation
was entered into between the parties in the court below that the several
documents introduced in evidence ‘might be deemed genuine docu-
ments according to the purport thereof, and that, where the same
marks or designations occur in different documents, they might be
referred to for the purpose of identifying the things which they pur-
ported to relate to or’ describe.’ The evidence was that the bills of
lading were made out at the time of shipment, that they accompanied
the shipments, went with the car on which the goods were carried as
they passed through the respective divisions, or from one railroad to
another, and that sometimes the goods were rebilled and sometimes
they just passed from one line to another on the original waybill. The
only objection made to the introduction of these documents was that
they were incompetent, irrelevant, and immaterial, and did not tend to
show that the plaintiff in error at any time was engaged in the trans-
portation of interstate traffic in any of its cars. In view of the stipu-
lation of the parties and the nature of the objection which was made to
the evidence, we think that the government was not required to call
as witnesses the persons who had physical charge of the transportation
in question, or to prove by them that in the course of their duties they
had made records of the movements of the respective cars on which
the freight was carried. The documents so admitted under the stipula-
tion may be regarded as entries made in the regular course of business,
and in the absence of any offer to disprove their verity we are of the
opinion ‘that they were sufficient to sustain the judgment of the court
below.”

v. Central, etc, R. Co. (D. C.), 157 is sufficient if you are satisfied in your

Fed. 893. ;

“By the preponderance of the evi-
dence, you are not to understand that
the government must make out its
case beyond a reasonable doubt. It

own mind from all the evidence that
the defendant did the act complained
of.” United States v. Central, etc., R.
Co. (D. C.), 157 Fed. 893, 895.
§ 282 THE SAFETY APPLIANCE ACT. 586

§ 282. To Sustain Recovery of Damages.—The burden of proof of
a violation of the act to show negligence is upon the party relying thereon 27
and he makes out a prima facie case of negligence by showing a use in vio-
lation of the statutory requirements, of a defective applicance, the same as
to recover the penalty, 28 and in addition the injury or death resulting there-
from.?9

And as far ds the couplers are concerned it is held that their failure to
work at any time, 3° or the use of a link and pin coupler, sustains a charge
of negligence. In Mobile, etc., R. Co. v. Bromberg, 141 Ala. 258, 37 So.
395, 401, the court said:

“The defendant moved to exclude all the evidence offered on behalf of
the plaintiff on the grounds that no prima facie case had been made
out by the evidence; * * * the gravamen of each count being the
violation of the federal statute requiring railroads engaged in inter-
state commerce to equip their locomotives and cars with automatic
couplers, and the failure of the defendant company to comply with its
provisions. That the cars which were being coupled by the plaintiff’s
intestate at the time he was killed were used in interstate commerce,
and were not provided with automatic couplers, and that intestate’s
death was occasioned by reason of the old-fashioned couplers which
were being used slipping by one another at the time the cars were
brought together for the purpose of being coupled, was without dis-
pute, and was proven by the testimony of the witness Heron. So,
clearly, the first ground of the motion to exclude was wholly without
merit.”

The motion to exclude all the evidence is also properly denied, when it
is made on the ground that the evidence making out a prima facie case also
shows the plaintiff guilty of contributory negligence, as this would in effect
deprive the plaintiff of his right to have the jury pass upon the credibility
of the testimony. The proper proceeding in such case being to request ap-
propriate instructions.3!

27. Sufficiency to sustain recovery
of damages.—Rosney v. Erie R. Co.,

30. Same — Defective couplers. —
United States—Chicago, etc., R. Co. v.

68 C. C. A. 155, 1385 Fed. 311; Philadel-
phia, etc. R. Co. v. Winkler, 4 Penne-
will (Del.) 387, 56 Atl 112; Winkler
v. Philadelphia, etc., R. Co., 4 Penne-
will (Del.) 80, 53 Atl. 90; Hench v.
Pennsylvania R. Co., 246 Pa. 1, 91 Atl.
1056, L. R. A. 1915D, 557.

As to sufficiency of evidence to show
defective air brake, see ante, “Engines
with Brake and Air Power,” § 227.

28. See ante, “To Sustain Recovery
of Penalties,” § 281.

29. What constitutes prima facie
case.—Norfolk, etc., R. Co. v. Hazel-
rigg, 107 C. C. A. 66, 184 Fed. 828;
Mobile, etc., R. Co. v. Bromberg, 141
Ala. 258, 37 So. 395; Grand Trunk, etc.,
R. Co. v. Poole, 175 Ind. 567, 93 N.
E. 26.

Brown, 229 U. S. 317, 57 L. Ed. 1204,
33 S. Ct. 840; Clark v. Erie R. Co. (D.
C.), 230 Fed. 478, 483.
Kentucky—Nashville, etc., Railway
v. Henry, 158 Ky. 88, 164 S. W. 310.
Missouri—Noel v. Quincy, etc, R.
Co. (Mo. App.), 182 S. W. 787, 788.
New Jersey.—Parker v. Atlantic City
R. Co. 87 N. J. L. 148, 93 Atl. 574,
L. R. A. 1915D, 1190.
North Carolina. — Montgomery v.
Carolina, etc, R. Co., 163 N. C. 597,
600, 80 S. E. 83.

South Dakota.—Fletcher v. South
Dakota Cent. R. Co. (S. Dak.), 155
N. W. 3.

31. Mobile, etc., R. Co. v. Bromberg,
141 Ala. 258, 37 So. 395.
587 EVIDENCE, § 282

However, should the evidence show that notwithstanding a defect, if
properly adjusted for that purpose a coupler would couple automatically by
impact, and it does not appear that to make this adjustment it was necessary
to go between the cars, the plaintiff has not shown a violation and a per-
emptory instruction is proper.?2

Plaintiff must show a use of the car in interstate commerce,*? or since the
amendment of 1903, its use upon a railroad engaged in interstate com-
merce, but not that they are actually loaded with an interstate consign-
ment.34 So where it was shown that cars had been employed in interstate
commerce, and it was not shown that they had been withdrawn from such
service, the reasonable presumption, therefore, is that they remained in it.
In practice such presumption will not work injustice. The defendant car-
rier will usually have little difficulty in showing, when it wishes to do so,
where the cars were to be taken and for what purpose. For the plaintiff to
trace them may be difficult and expensive.*® And also a showing that a car
came into a city in an interstate train one afternoon and out the next morn-
ing in another interstate train is sufficient, though at the time plaintiff was

injured the car was being switched in the yard.#6

32. Morris v. St. Louis, etc., R. Co.
(Tex. Civ. App.), 158 S. W. 1055, 1056.

33. Use in interstate Commerce.—
Rosney v. Erie R. Co., 68 C. C. A. 155,
135 Fed. 311.

“The act * * * requiring common
carriers engaged in interstate com-
merce to use automatic couplers and
air brakes on engines and cars used in
interstate commerce has no_ bearing
upon the present controvers. Assum-
ing that the act applies to cars being
shunted about in a switching yard
where, from the nature of the business
it would be impracticable, if not im-
possible, to connect up the air brakes,
it cannot be invoked in the present in-
stance for the reason that there is no
proof that the engine and cars were
used in interstate commerce. In John-
son v. Southern Pac. Co., 196 U. S. 1,
49 L,. Ed. 363, 25 S. Ct. 158, the engine
and car in question were both used in
interstate commerce.” Rosney v.
Erie R. Co., 68 C. C. A. 155, 135 Fed.
311, 316.

Where by an oral stipulation made
in open court it was admitted that the
defendant “is a common carrier en-
gaged in interstate commerce,” this
was a sufficient showing of such fact.
If it were to be denied by the defend-
ant then it should either amend such
stipulation or permit the plaintiff to
introduce evidence of the fact to ob-
viate the taking of which the stipula-
tion was made. Wabash R. Co. v.
United States, 93 C. C. A. 393, 168
Fed. 1.

But where the defendant

38a. For full discussion, see ante,
“Railroad Engaged and Vehicles Used
in Interstate Commerce,” Chap. XXXI.

34. Felt v. Denver, etc, R. Co., 48
Colo. 249, 110 Pac. 215, 1136, 21 Am.
& Eng. Ann. Cas. 379, reversing the
judgment below directed on the ground
that after a car was unloaded it lost
its interstate character, and overruling
as in conflict Rio Grande, etc., R. Co.
v. Campbell, 44 Colo. 1, 96 Pac. 986.

It is to be noted that where an ac-
tion is brought under the Federal Em-
ployer’s Liability Act, it is necessary
to prove that an employee was en-
gaged in interstate commerce at the
time of receiving his injuries, but this
is not necessary in an action under
this act as it is the use of the vehicle
in interstate commerce and not the
character of the employment of the
plaintiff. Texas, ete, R. Co. uw.
Rigsby, 138 C. C. A. 51, 222 Fed. 221.
See ante, “Persons Entitled to Protec-
tion,” § 253.

35. Wheeling Terminal R. Co. v.
Russell, 126 C. C. A. 519, 209 Fed. 795.
See, also, Felt v. Denver, etc., R. Co.,
48 Colo. 249, 110 Pac. 215, 21 Am. &
Eng. Ann. Cas. 379.

36. “The car itself does not appear
to have been used in an interstate
business at the time in question. It
was hauled empty from a New York
point to Port Jervis in the same state,
and the following day in like condition
was hauled to another New York point.
THE SAFETY APPLIANCE ACT. 588

§§ 282-283

by its pleadings fails to deny an allegation of the use of cars in interstate
commerce, such is not in issue, and proof of the same is not necessary.*7

Conjecture is an unsound and unjust basis for a verdict. Substantial evi-
dence of the facts which constitute the cause of action, is indispensable to
the maintenance of a verdict sustaining the cause.?8 But the plaintiff makes
a prima facie showing of negligence by showing a defective condition of a
coupling device, either in that the chain designed to lift the locking dog or
pin was broken, or that the chain was too long, but the fact that he did not
show which of the two defects mentioned was the one actually existing did
not make his proofs conjectural.®®

§ 283. To Sustain Defense.—The railroad company relying upon any
defense available has the burden of proving the same*® And where con-
tributory negligence is relied upon as a defense, the burden of proving such
negligence is upon the defendant.*!

Also if under any proviso of the act, it would not be liable, it has the
burden of proving that it comes thereunder.4? So where defendant con-
tended that the movement of a car was necessary for repairs, but the evi-
dence showed that the car was received by defendant from another com-
pany, was inspected and found in proper condition, and not till after the
car had been moved was the defect discovered. The evidence of the gov-
ernment on the other hand showed a defect existing prior to the movement
and which was repaired as soon as attention was called to it, and the jury

But the test of the application of the
statute is the train rather than the car
and we are of the opinion that there
was evidence warranting a finding that
the train in which this car moved into
Port Jervis included other cars loaded
with interstate shipments, and that the
train in which it' moved out of Port
Jervis was of a similar character. Upon
these facts it is held that the safety ap-
pliance act applies. * * * The fact
that the accident occurred during
switching operations, and not during
either the regular western or eastern
movement of the freight train, does
not affect the application of the stat-
ute. * * * Certainly if the car came
into Port Jervis in the afternoon in an
interstate train, and moved out of Port
Jervis the next morning in another in-
terstate train, the character of its use
was not changed during the switching
operations at night. Rosney wv. Erie
R. Co., 68 C. C. A. 155, 185 Fed. 311,
is distinguished from the fact that in
that case there was no proof of use
in interstate commerce.” Erie R. Co.
v. Russell, 106 C. C. A. 160, 183 Fed.
722, 725, 33 L. R. A., N. S., 800.

37. When not in issue—Norfolk, etc.,
R. Co. v. Hazelrigg, 95 C. C. A. 637,
170 Fed. 551.

88. Conjectural proof.—Midland Val-
ley R. Co. v. Fulgham, 104 C. C. A.
151, 181 Fed. 91.

89. Norfolk, etc. R. Co. v. Hazel-
rigg, 107 C. C. A. 66, 184 Fed. 828.

40. To. sustain defense. — Grand
Trunk, etc, R. Co. v. Poole, 175 Ind.
567, 93 N. E. 26.

41. Of contributory negligence.—Chi-
cago Junction R. Co. v. King, 94 C. C.
A. 652, 169 Fed. 372; Winkler v. Phila-
delphia, etc., R. Co, ‘4 Pennewill (Del.)
8c, 53 Atl. 90.

42. Coming under proviso.—Schlem-
mer v. Buffalo, etc, R. Co., 205 U. S.
1, 51 L. Ed. 681, 27 S. Ct. 407; United
States 7. Atlantic, etc, R. Co. (D. C.),
153 Fed. 918. See, also, “Under Amend-
ment of 1910,” §$ 249-251.

= ‘The general rule of law is that a
proviso carves special exceptions only
out of the body of the act; and those
who set up any such exception must
establish it.’ The rule applied to con-
struction is applied equally to the bur-
den of proof in a case like Beat
United States v. Atlantic, etc., Co.
(D. C.), 153 Fed. 918, 920, aed in
168 Fed, 175, 94 C. C. A. 35,
389 EVIDENCE. §§ 283-284

returned a verdict sustaining it. The court held that the defendant had
not brought itself within the proviso for two reasons; first because the re-
pair was such that it could have been made as well in one place as another,
and a car can be moved under the proviso only when the repair. is of such
a character as to require the taking of the car to some particular point; and
second, the movement permitted must be for the purpose of making re-
pairs and the movement complained of was not of that character.42? And
again the evidence must show a positive necessity for the movement, and
exclude the possibility of repair by other means, #4 in United States v. At-
chison, etc., R. Co. (D. C.), 220 Fed. 215, 217, the court said:

“It is clearly apparent, from the agreed statement of facts, that it would
have been very easy for the defendant to have sent an appropriate ré-
pairman from its repair track to the transfer track, where the car in
question was standing. It would have been equally easy, or possibly
less so, if the engine had been made use of, for the switching crew to
have sent to the repair track for the materials necessary to effectuate
an adequate repair. It is suggested in the agreed statement of facts
that the crew did not have in their possession, or upon their engine,
a clevis and clevis pin of the size, type, and kind necessary to make the
required repairs. It does not appear, however, that they did not have
in some other place, to wit, upon the other end of the car in question,
such clevis, or that they did not have at hand a different sized clevis or
other instrumentality which could have been used for the precise repair
then necessary. In any event, it does not appeal to the court that the
movement of the car complained of by the government was necessary,
in order that the repair could be made, nor that the repair could not,
consistently with a proper operation of defendant’s railway even, have
been made, at the point where the defect was originally discovered.”

Unless the evidence of the defendant tends to show, that the car was
properly equipped at starting on the journey, and became defective while
being used on the line of railroad of defendant, that the movement of the
car in the train was necessary to repair the defect, and that the repair could
not have been made except at such repair point, it is not even sufficient to

present a question for the jury, as to whether or not it is within the
proviso.#5

§ 284. Variance.—Where plaintiff's petition states that defendant was
a common carrier engaged in commerce by railroad, and that it was using
a car on its line of railroad in moving traffic, the case stated falls short
of coming within the act of congress only in that the petition does not allege
the interstate character of the commerce in which defendant was engaged,
or of the traffic which the car was moving. But if defendant offered no ob-
jection to evidence, which without conflict established the interstate char-

43. Chicago, etc, R. Co. v. United 44, United States v. Atchison, etc., R.
States, 127 C. C. A. 438, 211 Fed. 12, Co. (D. C.), 220 Fed: 215.

reversed on other grounds in 35 S. Ct. 45. As question for jury.—United

635. States v. Trinity, etc., R. Co., 128 C.
C. A. 120, 211 Fed. 448.
§ 284 THE SAFETY APPLIANCE ACT. 590

acter of the commerce in which defendant was engaged, and of the traffic
being moved by the car mentioned; and where it does appear that in except-
ing to the instructions by which the court applied the act of congress to this
branch of the case, defendant put its exception upon the ground that the pe-
tition did not state a case arising in interstate commerce; and as the plaintiff
was entitled to be seasonably appraised of the objection if it were intended
to be relied upon, and doubtless the court would have permitted an amend-
ment of the petition, it is manifest the defendant was not misled or surprised
by the variance. Under such circumstances the petition may well be con-
sidered as having been amended to conform to the facts proved.*®

Undisputed evidence, that a car was equipped with appliances as re-
quired by the act of Congress—that is to say, with automatic couplers—
under the averments of a complaint that the cars were not equipped with
automatic couplers, evidence merely of a defect in such couplers would not
support the averment. The defendant was on this undisputed evidence
entitled to the general charge requested as to the counts based on said act
of congress, and the court erred in refusing the same.47 This, however,
seems rather narrow, and a ruling that a declaration charging a failure to
equip also embraces the duty to maintain the equipment, seems more in
accord with the object and purpose of the act.4§

46. Variance.—Chicago, etc., R. Co. v. 47. Kansas, etc., R. Co. v. Flippo, 138)
Voelker, 65 C. C. A. 226, 129 Fed. 522, Ala. 487, 35 So. 457.
70 L. R. A. 264. 48. Atlantic, etc., R. Co. v. Whitney,

65 Fla. 72, 61 So. 179.
CHAPTER XLII.

INSTRUCTIONS, VERDICT AND JUDGMENT.

1. Instructions, § 285.
2. Verdict and Judgment, § 286.

§ 285. Instructions.—Instructions on negligence,! proximate cause,?
contributory negligence,? defects in foreign cars,‘ and the sufficiency of
couplers > were noted under these appropriate sections, when ruled upon by
the court.

‘The court is not required to embody every legal proposition applicable to
the case in a single instruction, but it is sufficient if the instructions as a
whole correctly advise the jury upon the law.® So it is not error to refuse
a charge embraced in a given charge or the general charge.? Nor will a
verdict be disturbed which is in accordance with the law and the evidence,
even if it is contrary to erroneous instructions given at the request of the
party against whom the verdict is rendered. And an instruction though
not strictly accurate is sufficient when in substance it embodies the true
doctrine of the court.» However, where the act as shown by the evidence
is applicable it is the duty of the court to instruct as to plaintiff's rights

1. Instructions.—See ante, “Result of
Violation,” § 252.

2. See ante, “Proximate Cause of In-
jury,” § 255.

8. See ante, “Contributory Negli-
gence,” Chap. XXXVI.

4, See ante, “Foreign Cars,” § 224.

5. See ante, “Test of Sufficiency,”
§ 233.

6. Instructions as a whole.—Grand
Trunk, etc., R. Co. v. Poole, 175 Ind.
567, 93 N. E. 26.

An instruction that would permit of
recovery for a defective coupler even
though the jury found it was in per-
fect order, if it so happened that when
the employee tried to work it, he failed,
is not error, when other instructions
required the coupler to be defective to
permit of a recovery. Fletcher v.
South Dakota Cent. R. Co. (S. Dak.),
“155 N. W. 3.

7. Norfolk, etc, R. Co. wv. United
States, 112 C. C. A. 46, 191 Fed. 302,
37 L. R. A, N. S., 976.

In an action to recover a penalty for
violating the safety appliance act, the
court charged that if the car in ques-
tion was used in interstate commerce,
but before starting on its interstate
journey, after being loaded, it was care-

591

fully inspected and the coupling ap-
paratus was not out of repair, and the
uncoupling chain was not kinked in-
side the coupler head, then the jury
should find for defendant, that, while
the testimony of defendant’s witnesses
that the car was inspected on its jour-
ney was not of itself substantive evi-
dence as to the condition of the car
when it left D., yet it was competent
to corroborate the testimony of de-
fendant’s car inspector, who testified
that he inspected the car at D., and
that the chain was not kinked in the
head of the coupler, nor out of repair
at that time. Held, that such instruc-
tion covered a requested charge that
though the chain was kinked at the
time the train was being made up at
D., and before it left the yards, yet,
if the kink had been loosened before
the train pulled out, the verdict should
be for defendant. Norfolk, etc., R. Co.
v. United States, 112 C. C. A. 46, 191
Fed. 302, 37 L. R. A., N. S., 976.

8. Erroneous instructions at de-
feated party’s request—Luken v. Lake
Shore, etc., R. Co., 248 Ill. 377, 94 N.
E. 175, 21 Am. & Eng. Ann. Cas. 82.

9. Instructions not strictly accurate.
—Malcott v. Hood, 201 Ill. 202, 66 N.
E. 247.
§§ 285-286 THE SAFETY APPLIANCE ACT. 592

thereunder, even though it be not otherwise brought to the court's atten-
tion; 1° but the court having by proper instructions submitted the case, if
either party consider the instructions insufficient on any point, it is their
duty to request a charge thereon.!!

Instructions upon an abstract proposition 1? or one ignoring the evidence
is properly refused. Thus where plaintiff was injured by going between
cars in order to affect a coupling which would not couple automatically,
the evidence showing that in order to aid the operation of weighing them,
they had been arranged so as not to couple but when it was attempted to
couple them neither would the coupling work, the defendant having offered
evidence that when in order they would couple without going between the
cars, could not ignore this other and have the jury instructed that the failure
to arrange them properly was the sole cause of the injury.18

Instructing the jury that if they believed from the evidence that the
plaintiff was injured, in the manner charged in the declaration, as the result
of such negligence, their verdict should be for the plaintiff, the reference
thus made to the declaration is not objectionable.1* And where the declara-
tion in an action for injuries charged defendant only with a failure to equip
its cars as required by the act, it was proper for the court to instruct on the
duty of the defendant to maintain the equipment as well. The duty as im-
posed being to maintain as well as equip.®

§ 286. Verdict and Judgment—Special Verdicts.—Interrogatories
upon which a special finding is to be based, should be so framed as to admit
of a direct answer of yes or no;16 and where the question of whether or
not plaintiff might have made a coupling with safety to himself in another
way, was submitted in various forms, to all of which the jury answered
“always dangerous,” the clear meaning of which was “no,” it was not error
to refuse to require a more direct answer.17 Where the jury returned a
general verdict for the plaintiff, such was not contradicted by special in-
terrogatories submitted to them, as showing plaintiff guilty of contributory
negligence when they specially found that plaintiff was performing his work
of coupling cars in the way usual and customary in defendant’s yards and
that the other way suggested was always dangerous.18

10. Duty to instruct on act ex pro-
prio motu.—Voelker v. Chicago, etc.,
R. Co. (C. C.), 116 Fed. 867, reversed
on other grounds in Chicago, etc., R.
Co. v. Voelker, 65 C. C. A. 226, 129
Fed. 522, 70 L. R. A. 264.

11. Request necessary to cover spe-
cial point—Malott v. Hood, 201 Ill.
202, 66 N. E. 247.

12. Abstract proposition.— Norfolk,
etc., R. Co. v. United States, 112 C.
C. A. 46, 191 Fed. 302, 37 L. R. A., N.
S., 976.

13. Ignoring evidence.—Wheeling
Terminal R. Co. v. Russell, 126 C. C.

A. 519, 209 Fed. 795.

14. Referring to pleadings—Malott
v. Hood, 201 Ill. 202, 66 N. E. 247.

15. Enlarging on issues.—Atlantic,
etc, R. Co. v. Whitney, 65 Fla. 72, 61 -
So. 179.

16. Interrogatories—Grand Trunk,
etc., R. Co. v. Poole, 175 Ind. 567, 93
N. E. 26.

17%. Sufficiency of answer.—Grand
Trunk, etc., R. Co. v. Poole, 175 Ind.
567, 93 N. E. 26.

18. As controlling general.—Grand
Trunk, etc, R. Co. v. Poole, 175 Ind.
567, 93 N. E. 26.
.

593 INSTRUCTIONS, VERDICT AND JUDGMENT.

§ 286
In an action to recover penalties, the trial court may direct a verdict.19

In Chicago, etc., R. Co. v. United States, 220 U. S. 559, 55 L. Ed. 582, 31
S. Ct. 612, 617, the court said:

“Tn that case 2° it was also held that it was competent for the trial court,
even though the action was for a penalty, to direct a verdict for the
government, the court saying that it was ‘fundamental in the conduct
of civil actions, that the court may withdraw a case from the jury, and
direct a verdict according to the law, if the evidence is uncontradicted
and raises only a question of law.’ ”’

quem

And again, in United States v. Atlantic, etc, R. Co. (D. C.), 182 Fed.
284:
“The law on this subject, as announced by Mr. Justice Harlan, in stating
the conclusions of the court in Hepner v. United States, 213 U. S. 103,
53 L. Ed. 720, 29 S. Ct. 474, 27 L. R. A., N. S., 739, 16 Am. & Eng.
Ann. (Cas. 960, after summing up all the authorities, is: ‘If, in a civil
action to recover a penalty, the defendant is entitled, the evidence being
undisputed, to have a peremptory instruction in his behalf, it is diffi-
cult to perceive why the government is not entitled to a peremptory
instruction in its favor, where the undisputed testimony left no facts
for the jury to consider, but established, beyond all question and as
matter of law, its right to judgment for the prescribed penalty.’ ”

So undisputed evidence that the sides of a tender,21 and a passenger coach,22
were not equipped with grabirons, requires a directed verdict for the gov-
ernment notwithstanding that other appliances on the cars may have served
the same purpose as grabirons.28 Of course in actions to recover damages
the right to a directed verdict is undisputed, and where the evidence shows
planitiff guilty of contributory negligence this even warrants a judgment non
cbstante veredicto.*4

However a verdict should not be directed if the plaintiff has made out a
prima’ facie case,?5 or when there is a material conflict in the evidence, or
when the evidence is such as to afford reasonable inference of the existence
of any facts or fact unfavorable to a right of recovery by the party asking

19. Directing verdict—For penalty. 20. Hepner v. United States, 213 U.

—Chicago, etc., R. Co. v. United States,
220 U. S. 559, 55 L. Ed. 582, 31 S. Ct.
612, affirming 95 C. C. A. 642, 170 Fed.
556, 156 Fed. 180; Galveston, etc. R.
Co. v. United States, 105 C. C. A. 422,
183 Fed. 579; St. Louis, etc, R. Co.
v. United States, 106 C. C. A. 136, 183
Fed. 770; United States v. Atlantic,
etc, R. Co. (D. C.), 182 Fed. 284;
United States v. Baltimore, etc., R. Co.
(D. C.), 184 Fed. 94; United States 7.
Norfolk, etc., R. Co. (D. C.), 184 Fed.
99; Galveston, etc., R. Co. wv. United
States, 118 C. C. A. 339, 199 Fed. 891.

Contra—Atchison, etc., R. Co. w.
United States, 96 C. C. A. 646, 172 Fed.
194,27 L. R.A, N.S. 756.

Fed Act—38

S. 103, 53 L. Ed. 720, 29 S. Ct. 474, 27
L. R. A, N. S., 739, 16 Am. & Eng.
Ann. Cas. 960.

21. United States v. Baltimore, etc.,
R. Co. (D. C.), 184 Fed. 94.

22. United States v. Norfolk, etc., R.
Co. (D. C.), 184 Fed. 99.

23. See ante. “Tack of Eauipment
When Other Appliances Afford Equal.
Protection,” § 239.

24. Same—In action for damages.
—Schlemmer v. Buffalo, etc., R. Co.,
220 U. S. 590, 55 L. Ed. 596, 31 S. Ct.
561.

25. See ante, “To Sustain Recovery
of Damages,” § 282.
§ 286 594

THE SAFETY APPLIANCE ACT.

it2 The rule upon this subject is well settled. It is that “when the evi-
dence given at the trial, with all inferences that the jury could justifiably
draw from it, is insufficient to support a verdict for the plaintiff, so that
such a verdict, if returned, must be set aside, the court is not bound to
submit the case to the jury, but may direct a verdict for the defendant.” °*

Number of Offences from Violation.—Whether the hauling be of sev-
eral cars by one act or by several acts is immaterial, so that if several cars,
each without the requisite appliances, are hauled by the carrier at one and
the same time, there are several distinct violations, for each and every one of
which the penalty is due and recoverable,?8 and it is error to permit a re-
covery on only one count of a petition charging several violations.2® In

United States v. St. Louis, etc., R. 'Co., 106 C. C. A. 230, 184 Fed. 28, 31,
the court said:

“The contention is that the defendant ‘has committed only one act; that
it, by one act, hauled three cars, m one movement, not equipped with
safety appliances as -requirea by law.’ If this, contention is well
founded, a defendant who used on the same trip a defectively equipped
engine and a defectively equipped car could be made to pay one penalty
only, although the use of the engine is made unlawful by § 1 and the
use of the car by § 2 or 4. It woud also follow that a defendant who
hauled or used 20 defective cars could not be made to suffer a larger
penalty than a defendant who hauled or used only one defective car.
It is difficult to believe that such was the intention of congress. The
words of the §§ 2 and 4—designating the unlawful act, point, it seems
to us, at the car, and not at the train. It is made unlawful to haul or
use ‘any car.’ If it had been made unlawful to haul any train contain-
ing a car or cars not equipped as required, it is easy to see that the
number of defective cars would not increase the penalty. But the act
makes the hauling or use of the defective car the unit of the offense,
and prescribes the penalty ‘for each and every such violation.’ The
hauling or use of each car is, it is admitted, a violation, for which the
penalty may be inflicted. But the contention is that the hauling or
use of each car must be separate, or there is but one offense. In view
of the purpose of the act to protect lite and limb by the enforced equip-
ment of every car, and its being inade unlawful to haul or use any car

26. Delk v. St. Louis, etc, R. Co.,
220 U. S. 580, 55 L. Ed. 590, 31 S.
Ct. 617, 14 Am. & Eng. Ann. Cas. 233;
Norfolk, etc., R. Co. v. Hazelrigg, 95

C. A. 637, 170 Fed. 551; Mobile,
etc., R. Co. v. Bromberg, 141 Ala. 258,
37 So. 395.

27. Delk v. St. Louis, ete. R. Co.,
220 U. S. 580, 55 L. Ed. 590, 31 S. Ct.
617, 14 Am. & Eng. Ann. Cas. 233.

28. Couplers and grab irons or hand
holds.—St. Louis, etc., R. Co. v. United
States, 106 C. C. A. 136, 183 Fed. 770;
United States v. St. Louis, etc., R. Co.,
106 C. C. A. 230, 184 Fed. 28. See
also, Detroit, etc., R. Co. v. State, 11
O. C. C., N. S., 482, 21-31 O. C. D. 20.

“The hauling by any carrier engaged
in interstate commerce of a car not
furnished with the safety appliance re-
quired by the laws of the United States
is a violation of the statute, which en-
titles the United States to recover a
penalty of $100; and as this penalty at-
taches for each and every such viola-
tion, it is recoverable for each and
every car not furnished with the req-
uisite safety appliances hauled in vio-
lation of the act.” St. Louis, etc., R.
Co. v. United States, 106 C. C. A. 136,
183 Fed. 770.

29. United States v. St. Louis, etc.,
R. Co., 106 C. C. A. 230, 184 Fed. 28.
595 INSTRUCTIONS, VERDICT AND JUDGMENT. § 286

not equipped as required, it seems to us that the construction contended
for by the defendant is so narrow as to defeat the intention of congress.
If the three defective cars had been hauled or used by the same engine,
but only one moved at a time at intervais of one minute or less, it is not
denied by defendant’s contention that three penalties could be recov-
ered. The three penalties would have been recovered, for the reason
that the statute makes unlawful the hauling or use of ‘any car,’ or each
car not equipped as required. It seems strained to say that the statute
requires for its complete application an interval, and that the condem-
nation and penalty is not the same if the three cars are hauled or used
at the same time.”

But the question as to what would constitute two distinct uses of the same
car, so as to embrace two offenses, is not so clear. It has been decided that
where a car is not properly provided with grabiron on a given day, and the
train stops for a certain time and then goes on again, there are not two vio-
lations of the law, but only one, because the car is all the time being moved
in the same train. It makes no difference that it is being so moved on two
different days,?° and in United States 7. Boston, etc., R. Co. (D. C.), 168
Fed. 148, 152, the court said:

“The government claims here that it has proved to you by a preponder-
ance of the evidence not only one violation of the statute, but two.
Now, on that point, gentlemen, you will consider whether or not this

‘car, in the first place, was unprovided with grabirons or handholds,
as it should have been, and, in the second place, whether it was moved
by this railroad in more than one train. Let us suppose that you have
found that that car was on a given day not properly provided with
grabirons and handholds as the statute requires. Let us suppose that
that car was at the time being moved in a train. Let us suppose that
that train stopped for some purpose, no matter what, for a while, and,
after having so stopped for a certain time, started up and went on
again. Now, in a supposed case like that, my instruction to you would
be that there were not two violations of the law, but only one, because
the car was all the time being moved in the same train. I should in-
struct you, gentlemen, that, so long as the car is being all the time
moved in the same train, it makes no difference that it is being so
moved on two different days; that so long as the car continues being
moved by the railroad on the same train it makes no difference that
September 19th has run out and September 20th has come in; that
that does not make two distinct violations of the statute, but the move-
ment of the car being, though on those two different days, all the time
in one train, there has only been one violation of the statute. You will
consider upon the evidence to which you have listened whether this car
has been moved in more than one train. If you so find, it will be
proper, provided you have been satisfied by a preponderance of the
evidence that it was being so moved without the grabirons and hand-
holds which the law requires, to find for the plaintiff both on the first
count and on the fifth count. If, on the other hand, you are not satis-
fied by a preponderance of the evidence that the car was moved in

30. What constitutes distinct offence.—United States v. Boston, etc., R. Co.
(D. C.), 168 Fed. 148.
§ 286 THE SAFETY APPLIANCE ACT. 596

two trains, but was only so moved in one, that both on September 19th
and on September 20th the car was continued all the time in one train,
you should then find for the plaintiff only on one of those counts, either
the first or the fifth, but you should not find for the plaintiff on both of
them.”

It would seem that the haul of a defectively equipped car, or one not
equipped, even in the same train would constitute more than one offense
if the length of the haul were unusually long and an opportunity to remedy
the condition was presented to the railroad. However, the provision re-
quiring air brakes does not extend to each car as a unit but is applicable
only to a train of cars, and only one penalty is incurred for its use without
the required air power.*1

Joint Liability.—For hauling or using the same defective car two rail-
roads may be jointly liable and where so charged a judgment may be had
against either or both of them, according to the evidence of their liabil-
ity.?

31. Same—Air brakes. — United 32. Joint liability—United States v.
States v. Chicago, etc, R. Co. (D. C.), Chicago, etc, R. Co. (D. G.), 143 Fed.
162 Fed. 775, 782. 353.

When considering this provision of
the statute a train was defined. See
ante, “Air Brake,” §§ 226-228. a
CHAPTER XLIII.

APPEAL AND ERROR.

1. Presentation of Question Below, § 287.

2. Sufficiency of Record for Appeal, § 288.

3. Right of Reyiew in Action for Penalties, § 289.

4. Review by United States Supreme Court, §§ 290-291.
a. Judgments of Circuit Courts of Appeals, § 290.
b. Judgments of Highest State Courts, § 291.

5. Judgment on Appeal, § 292.

§ 287. Presentation of Question Below.—Where the trial court was
not asked to hold, as matter of law, that the evidence was insufficient to
warrant recovery and to direct a peremptory verdict for defendant, the
question is not presented on the record, and the action of the lower court is
conclusive on the sufficiency of the proof to support the verdict.1_ So, too,
the refusal of the court to direct a verdict for the defendant on the ground
that the evidence did not show it to be engaged in interstate commerce, will
not be considered on appeal where such fact was not disclosed as one of the
grounds for the motion.”

§ 288. Sufficiency of Record for Appeal.—The action of the lower
court in granting a compulsory nonsuit and refusal to revoke it, will be
affirmed on appeal where the evidence was taken in such a way and so
voluminous as to make its application to the particular counts practically
unintelligible and the briefs of counsel fail to give any aid to that end.3
And where a rule of court requiring “Only so much of the evidence shall
be embraced in a bill of exceptions as may be necessary to present clearly
the questions of law involved in the rulings to which exceptions are reserved
and such evidence as is embraced therein shall be set forth in condensed
and narrative form, save as a proper understanding of the questions pre-
sented may require that parts of it be set forth otherwise,” is not complied
with where the entire transcript of the stenographer’s trial notes has been
included in the bill of exceptions, and no part of the evidence, no matter
how formal or undisputed, has been reduced to narrative form; and is
therefore not in proper condition for review.‘

It is to be presumed that proceedings were regular and properly con-
ducted, and where error is predicated upon the failure of the court to in-

1. Presentation of question below.— Baltimore, etc., R. Co., 107 C. C. A.
Malott v. Hood, 201 Ill. 202, 66 N. EF. 586, 185 Fed. 486, affirming 176 Fed.
247, 114. ‘ :

* Wabash R. Co.,v. United States, | 4. Reduction of testimony to narra-
93 C. C. A. 393, 168 Fed. 1. tive form.—Wheeling Terminal R. Co.

3. Showing application of testimony v. Russell, 126 C. C. A. 519, 209 Fed.
to particular counts—United States v. 795.

597
§§ 288-289 598

THE SAFETY APPLIANCE ACT.

struct upon an order permitting the dismissal of some counts and the ad-
dition of one count to a declaration, the record must set out the manner of
amendment under the order, or no error is shown.®

§ 289. Right of Review in Action for Penalties.—If the violation of
the act were a criminal offense, the government would be concluded by the
trial in the district court,6 but an action to recover penalties, being in the
nature of a civil action to recover a debt’ the right of appeal and review by
the government cannot be denied. In United States v. Illinois Cent. R. Co.,
95 C. C. A. 628,170 Fed. 542, 545, the court said:

“We held in United States v. Baltimore, etc., R. Co., 86 C. C. A. 223,
159 Fed. 33, 38,9 and again in the case of United States v. Louisville,
etc., R. Co., 93 C. C. A. 58, 167 Fed. 306, that the government was
entitled to prosecute a writ of error from this court to the district court
to review the proceedings in an action of debt to recover a pecuniary
penalty which alone was the punishment prescribed. To this ruling we
adhere. The result is that the motion to dismiss must be overruled.”

It was contended that this review of the trial in an appellate court, was
against the prohibition subjecting a person to be put twice in jeopardy for
the same offense, which applied not only to crimes but to misdemeanors
also. But it was held that if this were true the court would have to suppose
the protection thereby afforded, extended to artificial as well as natural
persons, as the defendant was a corporation, and that if a private person
could invoke it in a case where only the forfeiture of property was involved,
then a corporation might invoke it in like cases. The contention was over-
ruled, as this being an extension of the doctrine beyond its hitherto recog-
nized scope.!°

But an appeal is only permitted when the trial has proceeded according
to law and when the case is heard by the judge of the District ‘Court sitting
without a jury, there can be no appeal.11_ In United States v. Louisville,
etc., R. Co., 93 C..C. A. 58, 167 Fed. 306, 308, the court said:

“But the essential fact here is that the parties instead, of trying the case
by a method known to the common law or provided by statute, were
content to submit it to the determination of one who must necessarily
act as an arbitrator, to whose conclusions a writ of error would not
lie, that remedy being only available to correct errors in judicial pro-

5. Showing manner of amendment
of pleadings.—Malott v. Hood, 201 III.
202, 66 N. E. 247.

6. Right of review in action for pen-
alties—United States v. Louisville,
etc, R. Co. 93 C. C. A. 58, 167 Fed.
306, affirming 156 Fed. 195.

7. See ante, “Proceedings for Pen-
alty,” Chap. XXXVII.

8. United States v. Louisville, etc.,
R. Co., 93 C. C. A. 58, 167 Fed. 306;
United States v. Illinois Cent. R. Co.,
95 C. C. A. 628, 170 Fed. 542.

9. A case to recover penalties for
violation of Act June 29, 1906, 34 Stat.
at L. 607, relating to feeding and wa-
tering live stock in transit.

10. As twice in jeopardy.—United
States v. Illinois Cent. R. Co., 95 C.
C. A. 628, 170 Fed. 542.

11, On trial without jury in Dis-
trict Court.—United States v. Louis-
ville, etc., R. Co. 983 C. C. A. 58, 167
Fed. 306, affirming 156 Fed. 195.
599 APPEAL AND ERROR. §§ 289-290
ceedings authorized by law. And there is no law under which the
facts may, in a common-law case, be tried by the judge in a District
Court. As was pointed out in the case of Rogers v. United States,
141 U. S. 548, 35 L. Ed. 853, 12 S. Ct. 91, while there is statutory
authority for the trial of causes by the judge upon the law and the
facts in the circuit court (§ 649, Rev. St. [U. 5. Comp. St. 1901,
p. 525]), no such authority is given to the judge of the district court
in the trial of a civil action. On the contrary, it is expressly declared
by § 566, Rev. St. (U. S. Comp. St. 1901, p. 461), that all issues of
fact, with the exception of equity and admiralty causes, shall be tried
by a jury. In that case there had been a trial by the judge of the
district court, a judgment, a bill of exceptions allowed, and a writ of
error to the circuit court, where the judgment was affirmed. The case
was thereupon taken to the supreme court, where, on looking into the
record, the court discovered that the case had been tried by the Dis-
trict Judge upon a submission of the cause to him, sitting without a
jury. It was thereupon held (as the ruling is condensed in the sylla-
bus) that: (1) “The circuit court could not properly consider any matter
raised by the bill of exceptions, nor can this court do so, because the
trial was not by a jury nor on an agreed statement of facts. (2) All
that the circuit court could do was to affirm the judgment of the dis-
trict court, and all that this court can do is to affirm the judgment of
the circuit court, as the latter court had jurisdiction and this court
has it.”

§§ 290-291. Review by United States Supreme Court—§ 290.
Judgments of Circuit Courts of Appeals.—Though in some cases the
judgment of the circuit court of appeals is final, it is not when the case is
one arising under the constitution and laws of the United States, and an
action under this act will give jurisdiction,!2 but when the constitutionality
of an act of congress is first advanced at the trial, it does not give juris-
diction.13

Even when it has jurisdiction and the question presented is the suffi-
ciency of the evidence to sustain a directed verdict for the defendant on
the ground of contributory negligence, an examination of the record will
only extend to a determination of whether plain error has been committed by
the court below in the particulars complained of.14 In Chicago Junction
R. Co. v. King, 222 U. S. 222, 56 L. Ed. 173, 32 S. Ct. 79, 80, the court

said:

“We do not think we are called upon to scrutinize the whole record for
the purpose of discovering whether it may not be possible, by a minute
analysis of the evidence, to draw therefrom inferenecs which may
possibly conflict with the conclusion of the courts below as to the

S. Ct. 79, affirming 94 C. C. A. 652,

12. Cases reviewable. — Chicago
169 Fed. 372.

Junction R. Co. v. King, 222 U.S. 222,
56 L. Ed. 173, 32 S. Ct. 79, affirming
94 C. C. A. 652, 169 Fed. 372.

18. Time of asserting federal ques-
tion.—Chicago Junction R. Co. w.
King, 222 U. S. 222, 56 L. Ed. 173, 32

14, Extent of consideration of rec-
ord.—Chicago Junction R. Co. uv. King,
222 U. S. 222, 56 L. Ed. 173, 32 S. Ct.
79, affirming 94 C. C. A. 652, 169 Fed.

Bites
§§ 290-291 THE SAFETY APPLIANCE ACT. 600

tendencies of the proof. We are of this opinion because, in this and
cases like it, that is, in cases where the conditions are in all respects
identical with those here presented, we think our whole duty will be
performed by giving to the record such examination and consideration
as may be necessary to enable us to determine whether plain error was
committed by the court below in any of the particulars complained of.
In the discharge of such duty in this case, in view of the full opinion
of the circuit court of appeals, and in the light of the adequate ex-
amination which we have made of the record, as we find nothing
giving rise to a clear conviction on our part that error has resulted
from the action of the courts below, it follows that the judgment of
the circuit court of appeals must be and it is affirmed.”

§ 291. Judgments of Highest State Courts.—While the jurisdiction
of Federal courts extends “To all cases, in law and equity, arising under
this constitution, the laws of the United States, and treaties made, or which
shall be made, under their authority,” 15 the appellate jurisdiction of the
supreme court however, must be exercised “with such exceptions and unger
such regulations as the congress shall make.” 16 Congress has regulated
and limited the. appellate jurisdiction of the supreme court over the state
courts by § 709 of the Revised Statutes,17 and jurisdiction in this respect
extends only to the cases there enumerated, even though a wider jurisdic-
tion might be permitted by the constitutional grant of power. The words
of that section material here are those authorizing the supreme court to
re-examine the judgments of the state courts “where any title, right, privi-
lege, or immunity is claimed under * * * any * * * statute of
* * %* the United States, and the decision is against the title, right, privi-
lege, or immunity specially set up or claimed * * * under such * * *
statute.”

Jurisdiction so clearly warranted by the constitution and so explicitly
conferred by the act of congress needs no justification. But it may not be
out of place to say that in no other manner can a uniform construction of
the statute laws of the United States be secured, so that they shall have the
same meaning and effect in all the states of the Union.18 The jurisdiction
to review depends upon a federal right being claimed in the court below
and a denial thereof to the plaintiff in error. The principles to be derived
from the cases are these: Where a party to litigation in a state court in-
sists, by way of objection to or requests for instructions, upon a construc-
tion of a statute of the United States which will lead, or, on possible find-
ings of fact from the evidence may lead, to a judgment in his favor, and
his claim in this respect, being duly set up, is denied by the highest court
of the state, then the question thus raised may be reviewed. The plain rea-

15. Judgments of highest state 3, 1911, it was re-enacted without
courts.—Const. art. 3, § 2. change in § 237.

16. Const. art. 3, § 2. 18. St. Louis, etc., R. Co. v. Taylor,

17. Though this section was renealed 210 U. S. 281, 52 L. Ed. 1061, 28 S.
by § 297 of the Judiciary Act of March Ct. 616.
601- APPEAL, AND ERROR. § 291

son is that, in all such cases, he has claimed in the state court a right or
immunity under a law of the United States and it has been denied to him.19
Thus where the declaration in an action for personal injuries alleged that
‘the defendant was engaged in interstate commerce and that the coupler
used was not such as was required by the federal statute and upon the trial,
special attention was called to its application to the case and upon dismissal,
on the ground of contributory negligence, motion to reconsider was made upon
the same grounds, this sufficiently presented a question made and overruled
which would give plaintiff a right to a writ of error from the supreme
court.2°

However a railroad company did not specially set up or claim any
right under the act of congress or dependent on its construction which was
denied by the state courts, where a recovery was not sought upon the single
ground of defective equipment under the federal safety appliance act;
though the trial court, in one of its instructions, set forth the provisions of
the act, and told the jury that if they found the railway company was en-
gaged, and the cars by which plaintiff was injured were being used, in in-
terstate traffic, and that they were not equipped with the automatic couplers
required, such failure was negligence; and it was further charged that rail-
roads were required to keep their appliances in safe and suitable order. It
being objected that the instructions assumed that if the automatic coupler
was out of repair, the company failed to comply with the act of congress.
The supreme court of the state held that there was no error, as congress
must have intended that the couplers should be kept in proper repair for
use, and moreover, as such was the law of the state, even if the act of con-
gress had not specifically imposed this duty. By this ruling no right specifi-
cally set up or claimed under the act of congress by defendant below was
decided against. There was no pretence that the act of congress provided
that the automatic couplers need not be kept in order, and whether the cars
‘in question were used in moving interstate traffic and whether the coupling
appliances were defective or not, were facts left to the jury, and determined
by their verdict.2!_ And also, where defendant, a railroad, made no ap-
plication to have a cause removed, it was not denied any federal right sub-
ject to review on appeal, though it requested instructions that if plaintiff
by his pleadings made a case of joint liability between the company and a
citizen of the state, and thereby deprived the defendant of its right of re-
moval, and to allow plaintiff to recover on proof not showing such joint
liability would deprive defendant of its rights guaranteed by the Federal
Constitution and laws.??

19. What constitutes claim of right. 21. Southern R. Co. v. Carson, 194
—St. Louis, etc., R. Co. v. Taylor, 210 U. S. 136, 48 L. Ed. 907, 24 S. Ct. 609.
U. S. 281, 52 L. Ed. 1061, 28 S. Ct. 616. 22. Southern R. Co. v. Carson, 194

20. Schlemmer v. Buffalo, etc, R. U. S. 136, 48 rE Ed. 907, 24 S. Ct.
Co., 205 U. S. 1, 51 L. Ed. 681, 27 S. 609.
Ct. 407.
602

§ 291 THE SAFETY APPLIANCE ACT.

Objecting to an erroneous construction of the safety appliance act, which
warranted on the evidence a judgment against it, and insisting upon a cor-
rect construction of the act, which would have warranted on the evidence
a judgment in its favor, and the denial of such claims, are decisions of fed-
eral questions, as is also the contention of the constitutionality of the act,
delegating the power to prescribe the height of drawbars used on cars in
interstate commerce to the interstate commerce commission.2? Where in
an action for injuries due to an employee being compelled to go between
cars in order to affect a coupling, one of the cars not being equipped with
an automatic coupler, the court held that the federal safety appliance act
did not apply and a nonsuit was sustained on the ground of contributory
negligence, this was a sufficient decision of a federal matter as to give juris-
diction of a case from a state supreme court to the United States Supreme
Court. The fact that the suit was dismissed upon the ground of contribu-
tory negligence does not preclude the fact that the other question was in-
volved and considered.24 In Schlemmer wv. Buffalo, etc., R. Co., 205 U. S.
1, 51 L. Ed. 681, 27 S. Ct. 407, the court said:

“We certainly do not mean to qualify or limit the rule that, for this
court to entertain jurisdiction of a writ of error to a state court, it
must appear affirmatively that the state court could not have reached
its judgment without tacitly, if not expressly, deciding the federal mat-
ter. * * * But, on the other hand, if the question is duly raised
and the judgment necessarily, or, by what appears, in fact involves
such a decision, then this court will take jurisdiction, although the
opinion below says nothing about it. * * * And if it is evident
that a ruling purporting to deal only with local law has for its prem-
ise or necessary concomitant a cognizable mistake, that may be suffi-
cient to warrant a review.”

As every state may, subject to the restrictions of the federal constitution,
determine the limit of the jurisdiction of its courts, the character of the con-
troversy which shall be heard in them, and specifically how far it will,

23. What constitutes federal ques-
tion.—St. Louis, etc, R. Co. v. Tay-
lor, 210 U. S. 281, 52 L. Ed. 1061, 28
S. Ct. 616.

2%. Schlemmer v. Buffalo, etc, R.
Co., 205 U. S. 1, 51 L. Ed. 681, 27 5.
Ct. 407; Schlemmer v. Buffalo, etc., R.
Co., 220 U. S. 590, 55 L. Ed. 596, 31
S. Ct. 561, affirming 222 Pa. 470, 71
Atl. 1053.

“This court held that the shovel car
was in course of transportation be-
tween points of different states, and
therefore was being used in interstate
commerce; that the shovel car was a
car within contemplation of § 2 of the
act of congress; that § 8 of that act
had deprived the company of the de-
fense of assumed risk on the part of
an employee; that the ruling in the

Pennsylvania court upon contributory
negligence was so dependent upon an
erroneous construction of the statute
that it could not stand. Schlemmer
v. Buffalo, etc, R. Co. 205 U. S. 1,
51 L. Ed. 681, 27 S. Ct. 407. As the
alleged right to recover was under a
federal statute, alleged to have been
improperly construed against the
plaintiff in error, the case presented a
claim of federal right, a denial of
which, was reviewable here, and the
case, for the reason stated, was re-
versed by this court, and sent back
for further proceedings in conformity
with the opinion of this court. We
find no occasion to depart from the
former decision.” Schlemmer v. Buf-
falo, etc, R. Co., 220 U. S. 590, 55 L.
Ed. 596, 31 S. Ct. 561, 562.
603 APPEAL AND ERROR. §§ 291-292
having jurisdiction of the parties, entertain in its courts transitory actions
where the cause of action has arisen outside its borders, the determination
by the supreme court of the state that it had authority to try an action
which arose in a territory created by congress, is not a federal question
reviewable upon the appeal to the United States Supreme Court.25 An as-
signment of error for the refusal of permission to amend a petition so as to
charge that cars were moved in interstate commerce, the statute of limita-
tions having become operative, is a question of pleading and practice under
the laws of the state, that is not subject to review as a federal question, 2°
and where a petition did not state a cause of action under the safety-appli-
ance act, but at most a right of recovery at common law, the ruling upon
the sufficiency of the evidence did not involve a federal question.27

So, too, the failure of the court to rule that an employee’s action for dam-
ages was barred by his disobeying a rule of the company which forbade
him going between moving cars, on the ground that the jury might find
that a practical necessity existed for the disobedience of this rule and that
the course which he followed in the emergency was that of a reasonably
prudent man, does not involve the construction of the act or any right or
immunity from liability which is thereby conferred.28 And also where the
court instructed that if the federal satety appliance law applied it exacted a
usual, that is, ordinary, degree of care in the appliances to which it related,
an appeal will not lie from the Federal Supreme Court to a state court.
Such contention is without merit and frivolous.2® And a proposition which
is unsubstantial and frivolous cannot be made substantial by asserting an-
other of the same character.®°

§ 292. Judgment on Appeal.—While there is always due a certain
respect and confidence to every expression of opinion by a superior court
to a subordinate one, but it is of controlling authority only upon those dec-
larations of essential import resting upon the facts and leading to the con-
clusion manifested by the judgment. Declarations of law bearing upon the
issues and indicating the proper judgment thereon are binding. The facts
and law of the instant case only are in the'eye and thought of the court.
But expressions of opinion as to how the law would be upon facts essen-
tially different from those in issue are not controlling, in another case when

25. Held not federal question—Ju-
risdiction.—St. Louis, etc., Co. wv.
Taylor, 210 U. S. 281, 52 L. Ed. 1061,
28 S. Ct. 616.

26. Amendment of pleading.—Brink-
meier v. Missouri Pac. R. Co., 224 U.
S. 268, 56 L. Ed. 758, 32 S. Ct. 412.

But see Seaboard Air Line Railway
v. Renn (U. S.), 36 S. Ct. 567, where
such an amendment is held to be a
federal question if it operates to pro-
long the limitation under the Em-
ployers’ Liability Act.

27. Rulings on evidence.—Brinkme-
ier v. Missouri Pac. R. Co., 224 U. S.
268, 56 L. Ed. 758, 32 S. Ct. 412.

28. Minneapolis, etc., R. Co. v. Pop-
plar, 237 U. S. 369, 59 L. Ed. 1000,
35 S. Ct. 609.

29. Frivolous contentions.—Erie R.
Co. v. Solomon, 237 U. S. 427, 59 L.
Ed. 1033, 35 S. Ct. 648.

30. Erie R. Co. v7. Solomon, 237 U.
S. 427, 59 L. Ed. 1033, 35 S. Ct. 648.
§ 287 604

THE SAFETY APPLIANCE ACT.

different facts and issues are presented. These rules have been de-
clared on many occasions by the supreme court itself, and no appellate
tribunal has more strongly emphasized them.*!| Thus where on appeal it
was held to be error to have refused to direct a verdict, upon a retrial after
remand it was not error again to refuse to do so unless the evidence is sub-
stantially the same.??

When a case is remanded by the Supreme Court of the United States to
the supreme court of a state, the mandate of the latter court to the trial
court should direct that the trial be proceeded with according to the law as
declared by the United States Supreme Court. In Schlemmer v. Buffalo,
etc., R. Co., 220.U. S. 590, 55 L. Ed. 596, 31 S. Ct. 561, 562, the court said:

“Tt is first objected by the plaintiff in error that the supreme court of
Pennsylvania remanded the case to the lower court for trial contrary
to the mandate sent down upon the reversal by this court. The su-
preme court of Pennsylvania remitted the case, after receipt of
the mandate from this court, to the lower court, to be retried ‘on the
settled principles of contributory negligence, as heretofore declared
in the decisions of this court,—supreme court of Pennsylvania.
The counsel for plaintiff in error moved the supreme court of
Pennsylvania to amend its judgment and remittitur so as to conform
with the mandate of this court, which motion was overruled. We
are of opinion that the order and remittitur of the supreme court of
Pennsylvania, in compliance with the mandate of this court, should
have required the further proceedings to conform to the opin-
ion of this court, as its mandate required, and as was within
the authority of this court, the matter involved being a right of federal
creation within the ultimate protection of this court. If an examination
of the record indicated that, by reason of this mandate, the subsequent
proceedings in the state court had operated to deprive the plaintiff in
error of the benefit of a trial under the federal statute properly con-
strued, we should be constrained to reverse the case.”

Under a writ of certiorari, a judgment of the circuit court of appeals
which had reversed a judgment of the circuit court was itself reversed, and
the Supreme Court of the United States on rendering judgment, held that
as they had the same right to dispose of the case under the writ of certiorari
as they would have had on an appeal and the judgment of the circuit court
of appeals being erroneous it was reversed, and that of the circuit court in
which there appeared no error was affirmed.*4

U. S. 590, 55 L. Ed. 596, 31 S. Ct. 561.

34. Affirming lower court on certio-
rari from intermediate court.—Delk v.
St. Louis, etc., R. Co., 220 U. S. 580,

31. Extent of binding lower court.
—United States wv. Illinois Cent. R.
Co., 95 C. C. A. 628, 170 Fed. 542.

32. Denver, etc. R. Co. v. Arrighi,

63 C. C. A. 649, 129 Fed. 347.

33. Mandate requiring court to fol-
low supreme court judgment. —
Schlemmer v. Buffalo, etc., R. Co., 220

55 L. Ed. 590, 31 S. Ct. 617, 14 Am.
& Eng. Ann. Cas. 233, reversing 158
Fed. 931, 86 C. C. A. 95.
The Hours of Service Act’

CHAPTER XLIV.

Oxyect, Nature or Duty, AnD CONSTITUTIONALITY.

1. Object and Purpose, § 288.
2. Nature of Duty Imposed, § 289.
3. Constitutionality, § 290.

§ 288. Object and Purpose.—Protection to the lives of employees and
of the traveling public against accidents due to loss of efficiency from over-
work was the purpose of limiting the hours of service.2. In United States wv.
Yazoo, etc., R. Co. (D. C.), 203 Fed. 159, 161, the court said:

“Tt recognizes that there is a limit to human endurance, and that hours of
rest and recreation are needful to the health and efficiency of men
engaged in the hazardous work of railroading. The benefit it is in-
tended to confer is to better enable employees to serve their employ-
ers, and to promote the needs of commerce, and also to promote the
safety of travelers upon railroads. The limiting of hours of labor
of thoses who are in control of dangerous agencies, it is believed, will
relieve the employees of over fatigue and resulting indifference, and
thus avert accidents which lead to injuries and destruction of life and
property. Such purpose could scarcely be said to be of less importance
than making of annual reports, showing in detail the amount of capital
stock issued, the amounts paid therefor, the dividends paid, the surplus
funds, etc., unless we have unhappily fallen upon times when it is of
greater moment to enact and enforce laws, the purpose of which is to

v. Chicago, etc, R. Co. (D. C.), 197

1. The recent act of Sept. 2, 1916,
Fed. 624; United States wv. Great

fixing eight hours as a measure or

standard of a days work, does not
come within the scope of this work.
Its purpose being more to determine
a standard of pay, than to fix the
hours of labor, and under this act it
is permissible to work employees over
eight hours, with proportionate pay.
2. Object and purpose.—Delano v.
United States, 136 C. C. A. 243, 220
Fed. 635, 636; United States v. Atlan-
tic, etc., R. Co., 128 C. C. A. 275, 211
Fed. 897; Atlantic, etc, R. Co. vw.
United States, 128 C. C. A. 281, 211
Fed. 903; United States v. Kansas
City, etc, R. Co., 121 C. C. A. 136,
202 Fed. 828; United States v. New
York, etc, R. Co. (D. C.), 216 Fed.
702; United States 7. Missouri, etc.,
R. Co. (D. C.), 208 Fed. 957; Missouri
Pac. R. Co. v. United States, 128 C.
C. A. 271, 211 Fed. 893; United States

605

Northern R. Co. (C. C. A.), 220 Fed.
630, 633; Great Northern R. Co. vw.
United States, 127 C. C. A. 595, 211
Fed. 309; United States v. Atlantic,
etc, Co. (D. C.), 224 Fed. 160, 163;
United States v. Yazoo, etc. R. Co.
(D. C.), 203 Fed. 159.

“The primary purpose of the act of
Congress was to provide for the safety
of those intrusted to the supervision
of the employees, from the dangers
arising from their lack -of attention
and misjudgment, owing to fatigue
(Baltimore, etc. R. Co. uv. Interstate
Commerce Comm., 221 U. S. 612, 55
L. Ed. 878, 31 S. Ct. 621; United States
v. Missouri Pac. R. Co., 130 C. C. A.
5, 213 Fed. 169).” United States v.
Denver, etc., R. Co., 136 C. C. A. 275,
R20 Fed. 293, 295.
§§ 288-289 606

THE HOURS OF SERVICE ACT.

safeguard the financial interests of the public and the carrier, than it
is to enact and enforce laws, the purpose of which is to protect the
lives and limbs of human beings.”

Experience had shown that many serious accidents to trains causing great
loss of life or permanent disabilities to passengers, ,as well as employees,
were often due solely to the fact that members of the train crew had become
exhausted by reason of being required or permitted to remain on duty for
too long a period, and therefore unable to give that care and attention neces-
sary for the safety of the train.2 The remedy adopted was by limiting the
maximum of the hours of service and the minimum for the intervals be-
tween. It was thought futile to attempt to control the employees in their
use of their off time; therefore, as being more practical and efficient, the
command was laid upon and confined to those who gave them employment
in their regular occupations 4

§ 289. Nature of Duty Imposed.—tThe hours of service as prescribed
by the act must be observed, and the railroad cannot so arrange the service
to exceed the prescribed limitations upon the theory that the rest periods
are ample. The statute is mandatory,* and the duty imposed by the act,
like that of the safety appliance act,7 is positive and absolute. So reason-
able care or want of knowledge on the part of the officers and agents of
the carrier constitute no defense to a charge of requiring or permitting an
employee to be or remain on duty overtime.8 Certainly the duty is not
performed when the railroad is guilty of negligence.®

While the words “require or pennit” imply consent or knowledge on the
part of the employer, and this is pernaps their common significance; but the
word “permit” also means a failure to prohibit by one who has the power
and authority to do so, and would seem here to be used in the latter sense.

3. United States vw.
etc, R. Co. (D. C.),
San Pedro, ete, R. Co. vw.

Kansas City, 7. See ante, “Nature of Duty Im-
189 Fed. 471; posed,” § 217.
United 8. Absolute duty—Reasonable care

States, 130 C. C. A. 28, 213 Fed. 326,
Ann. Cas. 1914D, 1238.

4. San Pedro, etc., R. Co. v. United
States, 130 C. C. A. 28, 213 Fed. 326,
Ann. Cas. 1914D, 1238.

5. Nature of duty imposed.—United
States v. Grand Rapids, etc., R. Co.
140 C. C. A. 177, 224 Fed. 667.

6. United States v. Chicago, etc., R.
Co. (D. C.), 195 Fed. 783.

“It is mandatory in declaring:
‘That it shall be unlawful for any com-
mon carrier, its officers or agents, sub-
ject to this act to require or permit
an employee subject to this Act to
be or remain on duty for a longer pe-
riod than sixteen consecutive hours.’
This broad rule is restricted only by
the exceptions specified in the act it-
self.’ United States v. Chicago, etc.,
R. Co. (D. C.), 195 Fed. 783, 785.

not excuse.—United States v. Oregon-
Washington R., etc., Co. (D. C.), 218
Fed. 925; United States v. Oregon-
Washington R., etc., Co. (D. C.), 213
Fed. 688; United States v. Oregon
Short Line R. Co. (D. C.), 228 Fed.
561.

“Tt is now well settled that the
safety appliance act and kindred stat-
utes impose positive and absolute du-
ties on carriers, the nonperformance ,
of which is not excused by the exer-
cise of reasonable diligence or due
care on their part, and the hours of
service act admits of no other rational
construction.” United States v. Ore-
gon-Washington R., etc, Co. (D. C.),
213 Fed. 688, 690.

9. Black v, Charleston, etc, R. Co.,
87 S. C. 241, 69 5. E. 230, 31 L. R. A,
N. S., 1184.
607 OBJECT, NATURE OF DUTY, AND CONSTITUTIONALITY, § 289
But as if to allay all question as to its appropriate meaning the act expressly
provides in § 3 that “‘in all, prosecutions under this act the common carrier
shall be deemed to have had knowledge of all acts of all its officers and
agents,” and this provision eliminates all questions of knowledge or criminal
intent.1° Nor can the expression, ‘“‘all its officers and agents,” be limited to
general officers and agents. The knowledge of such general officers or agents
is imputed to the company by the common law, and it is very apparent that
the statute in question is not merely declaratory of the common law. In
United States v. Kansas City, etc, R. Co., 121 C. C. A. 136, 202 Fed. 828,
833, the court said:

“The act under consideration does not employ the words ‘knowingly’ and
‘willfully.’ The carrier is made liable if it requires or permits any
employee to be or remain on duty in violation of stated provisions.
This case then falls within that class where purposely doing a thing
prohibited by statute may amount to an offense, although the act does
not involve turpitude or moral wrong.”

A railroad therefore is guilty of a violation of the act when it permits
an employee subject thereto to remain on duty longer periods than those
specified, notwithstanding that such employee may have done so of his own
volition, and not from any requirement of his employer,!! and even where he
does so against orders.!?

However, an absolute compliance under all circumstances is not re-
quired.13 In the safety appliance act and kindred acts, the kind, character,
size, and adjustment of appliances generally understood and not difficult to
be provided by the railroad companies were prescribed. When, however,
congress came to deal with the question of continuous service of employees,
the human element, with its well-understood limitations and contingencies,
it was found much more difficult to prescribe an absolute rule and measure
of duty. This fact is recognized in the provisions found in the statute. It
was well known to the lawmakers that in maintaining telegraph offices and
stations for the transmission of orders, messages, and instructions, controll-
ing the movement of trains, conditions and contingencies would arise when,
to enforce an absolute, inflexible rule, as to periods of service, would defeat
the purpose of the law and endanger the safety of travelers, as was said ‘by
Judge Sanborn, in United States v. Missouri Pac. R. Co., 130 C. C. A. 5,
213 Fed. 169:

10. Knowledge by employer of vio-
lation. — United States v. Oregon-
Washington R., etc., Co. (D. C.), 213
Fed. 688, affirmed in 223 Fed. 596;
United States v. Oregon-Washington
R., etc, Co. (D. C.), 218 Fed. 925.

11. Voluntary service. — United
States v. Kansas City, etc., R. Co. (D.
C.), 189 Fed. 471.

12. Oregon-Washington R., etc,

Co. v. United States, 139 C. C. A. 142,
223 Fed. 596, affirming 213 Fed. 688;
United States v. Oregon Short Line
R. Co. (D. C.), 228 Fed. 561. See post,
“Defenses,” Chap. XLVIII.

18. Compliance in all cases not re-
quired—United States v. Atlantic,
etc., Co. (D. C.), 224 Fed. 160; United
States v. Missouri Pac. R. Co., 130 C.
C. A. 5, 213 Fed. 169.
§§ 289-290

THE HOURS OF SERVICE ACT.

608

“Congress perceived, and reflection will convince any one, that the pro-
tection, safety, and welfare of travelers and employees upon railroads
require that in such cases hard and fast rules shall yield to the demands

of humanity and the necessities of the cases.

The times when such

casualties will occur and when such cases will arise cannot be fore-

seen.”

§ 290. Constitutionality.—The authority of congress to enact the
hours of service act, is derived from its power to regulate interstate and
foreign commerce by the passage of laws for the safeguarding of the per-
sons and property that are transported in that commerce, and of those who
are employed in transporting them. Being within these limits it is valid.14
In Baltimore, etc., R. Co. v. Interstate Commerce Comm., 221 U. S. 612,
55 L. Ed. 878, 31 S. Ct. 621, 625, the court said:

“The fundamental question here is whether a restriction upon the hours
of labor of employees who are connected with the movement of trains
in interstate transportation is comprehended within this sphere of au-
thorized legislation. This question admits of but one answer. The length
of hours of service has direct relation to the efficiency of the human
agencies upon which protection to life and property necessarily de-

pends.”

The statute in its scope, is materially different from the first Employers’
Liability Act.15 There, while the carriers described were those engaged in

14. Declared constitutional —United
States——Baltimore, etc., R. Co. v. In-
terstate Commerce Comm., 221 U. S.
612, 55 L. Ed. 878, 31 S. Ct. 621, 625;
United States v. Chicago, etc., R. Co.
(D. C.), 218 Fed. 701; United States
v. Illinois Cent. R. Co. (D. C.), 180
Fed. 630; United States v. Kansas
City, etc, R. Co. (D. C.), 189 Fed.
471; United States v. St. Louis, etc.,
R. Co. (D. C.), 189 Fed. 954.

Kentucky—St. Louis, etc., R. Co. v.
McWhirter, 145 Ky. 427, 140 S. W.
672, reversed on other grounds in 33
S. Ct. 858.

Wisconsin,—State v. Chicago, etc.,
R. Co., 136 Wis. 407, 117 N. W. 686,
19 L. R. A, N. S., 326.

“That the regulation of the relation
between master and servant as to acts
done in interstate commerce is within
the power thus conferred upon con-
gress is authoritatively decided by
The Employers’ Liability Cases, 207
U. S. 463, 494, 52 L. Ed. 297, 28 S.
Ct. 141. It is categorically so declared
in the opinion of the court, although
three of the five justices who con-
curred in the decision withheld their
assent from this proposition, which,
however, received the approval of the
three justices who dissented from the
ultimate decision. We can discover no
distinction in principle between the

subject of regulation considered in
that case, namely, the - responsibility
of the employer for injuries to an em-
ployee, though due to the negligence
of a fellow servant, and the subject of
the act under consideration, which is
the prohibition of employers from im-
posing upon employees excessive
hours of labor. Both must seek their
justification for governmental action
in the same’ principles and reasons,
either in the protection of a class of
employees from. requirements hurtful
to them, or in the protection of the
welfare and safety of the public and
of the commerce from dangers sup-
posed to arise by reason of burden-
some responsibilities or perils im-
posed upon the employees of railroad.
While the thing primarily regulated is
not commerce, the regulation of the
conduct of the individual while en-
gaged in carrying on that commerce so
directly affects it that the latter is
thereby regulated.” State v. Chicago,
etc. R. Co., 136° Wis. 407, 117 N. W.
686, 687, 19 L. R. A, N. S., 326.

15. Act of June 11, 1906, chapter
3073, 34 Stat. at L. 232, U. S. Comp.
Stat. Supp. 1909, p. 1148. Declared un-
constitutional in The Employers’ Lia-
bility Cases, 207 U. S. 463, 52 L. Ed.
297, 28 S. Ct. 141.
609

OBJECT, NATURE OF DUTY, AND CONSTITUTIONALITY.

§ 290

the commerce subject to the regulating power of congress, it appeared that
if a carrier was so engaged, the act governed its relation to every employee,
although the employment of the latter might have nothing whatever to do
with interstate commerce. In the present statute, the limiting words govern

the employees as well as the carriers.1®

In State v. Chicago, etc., R. Co.,

136 Wis. 407, 117 N. W. 686, 691,19 L. R. A., N. S., 326, the court said:
“But it is claimed that the federal act of March 4, 1907, itself is uncon-

stitutional upon the same ground that the Employer’s Liability Act was
so held in the case already mentioned [The Employers’ Liability Cases],
207 U. S. 463, 52 L. Ed. 297, 28 S. Ct. 141. That case, from amongst
great contrariety of opinion of individual justices, finally decided the
very narrow proposition that the mere fact that a person or corporation
is engaged in interstate commerce does not confer upon congress au-
thority to regulate its acts not connected with such commerce. * * *
The act of congress of March 4, 1907, was passed after that case had
been decided in the same way in the lower court, and after a writ of
error had been for some time pending in the supreme court, and the
department of justice had asked, and been granted, right to be heard
on behalf of the United States on the question of constitutionality.
The contention of those who attacked the employer’s liability law was
doubtless well known to the interstate commerce commission and to the
congress. It is therefore entirely natural and probable that an attempt
would have been made to differentiate the latter enactment from the
former one, and to escape the somewhat technical ground of invalidity
in the former. It is without surprise, therefore, that we find such dif-
ferentiating provision in the first section, to the effect “that the provi-
sions of this act shall apply to any common carrier or carriers, their
officers, agents and employees, engaged in the transportation of passen-
gers,” etc., between the several states, and also: “The term “employees”
as used in this act shall be held to mean persons actually engaged in
or connected with the movement of any [interstate] train.” It will
also be noted that the hours of employment are prescribed for ‘any em-
ployee subject to this act.’ We cannot doubt that by these phrases the
operation of the present act was limited, not only to employers engaged
in interstate commerce, but to the conduct of employees so engaged,
to the exclusion of any who might be engaged purely in the domestic
affairs of the employer, and that by this very distinction and limitation
of the application of the act the legislation is brought within that por-
tion of the decision which holds that the employer’s liability act would
have been valid had it been confined in application to the relation of
employees while engaged in interstate commerce. The Employers’
Liability Cases, 207 U. S. 463, 52 L. Ed. 297, 28 S. Ct. 141.”

That it draws no distinction between employees engaged in interstate
commerce and those engaged in both interstate and intrastate, and confine
its provisions strictly to the former does not make it invalid.17

16. Baltimore, etc., R. Co. v. Inter-
state Commerce Comm., 221 U. S. 612,
55 L. Ed. 878, 31 S. Ct. 621, 625; State
v. Chicago, etc., R. Co., 136 Wis. 407,
117 N. W. 686, 19 L. R. A, N. S., 326.

17. Not distinguishing interstate and
intrastate service.—St. Louis, etc., R.

Fed Act—39

Co. v. McWhirter, 145 Ky. 427, 140 S.
W. 672, reversed on other grounds in
33 S. Ct. 858; People v. Erie R. Co.,
135 App. Div. 767, 119 N. Y. S. 873,
reversed in 198 N. Y. 369, 91 N. E.
849, but affirmed in 34 S. Ct. 756.
§ 290 THE HOUR OF SERVICE ACT. 610

In its power suitably to provide for the safety of employees and travelers,
congress was not limited to the enactment of laws relating to mechanical
appliances, but it was also competent to consider, and to endeavor to reduce,
the dangers incident to the strain of excessive hours of duty on the part of
engineers, conductors, train dispatchers, telegraphers, and other persons
embraced within the class defined by the act.18 And in imposing restrictions
having reasonable relation to this end there is no interference with liberty
of contract as guaranteed by the Constitution.1?

The act is not so uncertain or ambiguous as to render it invalid,?° by the
fact that the clause “except in case of emergency” in § 2 may be already
included in the proviso to § 3. In Baltimore, etc., R. Co. uv. Interstate Com-
merce Comm., 221 U. S. 612, 55 L. Ed. 878, 31 S. Ct. 621, 625, the court

said:

“But this argument in substance denies to the legislature the power to use
a generic description, and, if pressed to its logical conclusion, would
practically nullify the legislative authority by making it essential that
legislation should define, without the use of generic terms, all the spe-
cific instances to be brought within it. In a legal sense there is no
uncertainty. Congress, by an appropriate description of an exceptional
class, has established a standard with respect to which cases that arise
must be adjudged. Nor does the contention gather strength from the
broad scope of the proviso in § 3, for if the latter, in limiting the effect
of the entire act, could be said to include everything that may be em-
braced within the term ‘emergency,’ as used in § 2, this would be merely
a duplication which would not invalidate the act.”

But as will be shown later 21 these exceptions each have a distinct opera-
tion.

Neither does the inclusion in the first part of § 2 of all employees with
a limitation on their hours of service, and the provision in the latter part
of the same section respecting the hours of operators and dispatchers, render
it uncertain and ambiguous.2?

18. Not limited to mechanical appli-
ances.—Baltimore, etc., R. Co. vw. In-
terstate Commerce Comm., 221 U. S.
612, 55 L. Ed. 878, 31 S. Ct. 621, 625.

19. As restricting liberty of contract.
—Baltimore, etc. R. Co. v. Interstate
Commerce Comm., 221 U. S. 612, 55
L. Ed. 878, 31 S. Ct. 621; United States
v. St. Louis, ete, R. Co. (D. C.), 189
Fed. 954.

20. Certainty.—Baltimore, etc. R.
Co. v. Interstate Commerce Comm.,
221 U. S. 612, 55 L. Ed. 878, 31 S. Ct.
621; United States v7. St. Louis, etc., R.
Co. (D. C.), 189 Fed. 954.

21. See post, “Defenses,” Chap.
XLVIII.

22. United States v. St. Louis, etc.,
R. Co. (D. C.), 189 Fed. 954.

“Tt will be observed that the first

part of the section refers to employees
generally, subject to the act, and ren-
ders it unlawful for a carrier to re-
quire or permit any employee to be or
remain on duty for a longer period
than 16 consecutive hours, etc. The
proviso, however, excepts operators
and train dispatchers from the gen-
eral language thus employed, and pro-
vides for them a special rule. For rea-
sons deemed wise by the congress, it
was thought that telegraph operators
and train dispatchers should have
shorter hours for work and longer in-
tervals of rest; and hence the provi-
sion directly applied to them, that
their work hours should be limited to
9 and 13, respectively, according as
they might be employed in stations
continuously operated night and day,
611 OBJECT, NATURE OF DUTY, AND CONSTITUTIONALITY. § 290

It has been contended that the classification of operators is arbitrary in
that it discriminates between operators engaged in stations that are “con-
tinuously operated night and day’ and those employed in stations that are
“continuously operated only during the day time,’ and that this would
render the act void. But was decided to the contrary.?® In United States v.
St. Louis, etc., R. Co. (D. C.), 189 Fed. 954, 961, the court said:

“Just why the classification is unconstitutional it is difficult for the court
to conceive. And it is still more strange that the supreme court in
construing the act in its entirety 24 should have overlooked what counsel
appear to regard as so vital an objection to its constitutionality. The
proviso, referring to operators, train dispatchers, etc., was considered
by the court, and there is no intimation in the opinion that the classi-
fication is either unjust or arbitrary. Where congress has power to
legislate in reference to the hours of labor of employees, no hard and
fast rule of classification may for all cases be prescribed. * * *
The objection of counsel that the classification in the act provided is
unreasonable and arbitrary, and therefore void, is untenable.”

Against the objection to the orders of the interstate commerce commis-
sion made to enforce the act, it has been held that an order which requires
a sworn monthly report of all violations, or no violations, does not infringe
any constitutional provision as to self-incriminating evidence, nor the pro-
tection guaranteed by the provision against unreasonable searches and seiz-
ures.?5

etc., R. Co., 140 C. C. A. 177, 224 Fed.
667.

or in stations operated only during
the daytime. Is there any uncertainty

or ambiguity in the language of the
act? It is thought by the court that
the language is too plain to be mis-
understood. The obscurity suggested
by counsel is rather imaginary than
real. The proviso of § 2 relates solely
to the operator, train dispatcher, or
other employee ‘who * * * reports,
transmits, receives, or delivers orders
pertaining to or affecting train move-
ments,’ while the first part of the sec-
tion embraces all other employees sub-
ject to the act.” United States v. St.
Louis, etc, R. Co. (D. C.), 189 Fed.
954, 963.

23. Classification of employees not
arbitrary.— United States v. St. Louis,
etc, R. Co. (D. C.), 189 Fed. 954, af-
firmed in 199 Fed. 990, 117 C. C. A.
666; United States v. Grand Rapids,

“The principles underlying classifi-
cation such as this do not require pre-
cise adjustment of all the rights and
duties involved as respects either per-
sons or things. Even the rule of
equality admits of practical inequali-
ties; for, after all, reasonable approxi-
mation to exactness furnishes the only
standards attainable.” United States
v. Grand Rapids, etc., R. Co., 140 C. C.
A. 177, 224 Fed. 667, 670.

24. Baltimore, etc., R. Co. v. Inter-
state Commerce Comm., 221 U. S. 612,
55 L. Ed. 878, 31 S. Ct. 621, 625.

25. Requiring incriminating evidence
and permitting unreasonable searches
and seizures.—Baltimore, etc., R. Co.
v. Interstate Commerce Comm., 221 U.
S. 612, 55 L. Ed. 878, 31 S. Ct. 621.
CHAPTER XLV.

CONSTRUCTION AND OPERATION.

. Construction, § 291.

. Operation on State Legislation, § 292.

. Time of Taking Effect, § 293.

. Employer and Employee to Whom Applicable, § 294.

. Enforcement by Interstate Commerce Commission, § 295.

ap wn

§ 291. Construction.—The end to be attained by the law is the pri-
mary guide to its interpretation.1 So the language used must be taken as
the best evidence of that intention, and upon this is brought to bear the
established rules of statutory construction as far as applicable, ever keeping
in mind the object and purpose of its enactment.2 Where the language is
unambiguous and its meaning is plain, there is no need for construction.
However, in a doubtful case the apparent and natural meaning is always
to be preferred to any curious hidden signification discoverable only by
study and reflection, or deducible by ingenuity and strong desire? Also
an interpretation which is rational, sensible and practicable is to be pre-
ferred to one which is unreasonable, impracticable or improbable.*

If such a result can properly be reached the courts must ascribe a mean-
ing and a purpose to every part of a statute, with intent of leaving, if
possible, vitality in all its parts.6 The whole act must be taken together and
be so construed as to give effect to its humane purposes, and at the same
time to give the railroad companies the benefit of the exceptions and pro-
visos in all cases fairly brought within their terms and true intent.6 But
where no exceptions are made, the conclusive presumption is that none
were intended and it is not the province of the court to make them.? So,
too, as “a statute which creates a new offense and prescribes its punishment
must state clearly the persons and acts denounced,” and, an act which was
not an offense by the expressed will of the legislative body before it was

1. Construction.—United States v.
Atlantic, etc., R. Co., 128 C. C. A. 275,
211 Fed. 897, 900; Atlantic, etc., R. Co.
v. United States, 128 C. C. A. 281, 211

lects, and where the language of a
statute is unambiguous and its mean-
ing is plain, no room is left for con-
struction.” United States v. Missouri

Fed. 903. See also, United States v. Pac. R. Co. 130 C. C. A. 5, 213 Fed.
Atlantic, etc, Co. (D. C.), 224 Fed. 169, 173.
160, 163.

4. Northern Pac. R. Co. v. United
States, 129 C. C. A. 514, 213 Fed. 162;
United States v. Missouri Pac. R. Co.,
130 C. C. A. 5, 213 Fed. 169.

2. Missouri Pac. R. Co. v. United
States, 128 C. C. A. 271, 211 Fed. 893,
895.

8. Northern Pac. R. Co. v. United
States, 129 C. C. A. 514, 213 Fed. 162,
168.

“The apparent and natural meaning
of the terms of a statute is always to
be preferred to any curious hidden sig-
nification deduced by the reflection and
ingenuity of acute and powerful intel-

5. United States v. Great Northern
R. Co. (C. C. A.), 220 Fed. 630.

6. Benefit of exceptions.—San Pedro,
etc., R. Co. v. United States, 136 C. C.
A. 343, 220 Fed. 737.

7. No exceptions to be interposed.—
United States v..Missouri Pac. R. Co.,
130 C. C. A. 5, 213 Fed. 169, 173.

612
613 CONSTRUCTION AND OPERATION. § 291

done may not be justly or lawfully made so by construction after it is com-
mitted, either by the introduction into the statute of declarations, or the
expunging therefrom of words or terms, by the judiciary.§

The rulings of the interstate commerce commission while instructive are
not authoritative, but it is the duty of the court to so construe the act as
to give effect to what it deems to be its true meaning and purpose.®

Though there exists a close analogy between the statute under considera-
tion and the safety appliance act in some respects and from certain view-
points, but because in some of their features there is a similarity, and there-
fore because decisions construing certain features of the one may be taken
as authority for the construction to be placed upon corresponding and simi-
lar features of the other, it does not follow that decisions construing other
provisions of the one are to be taken as authority touching the interpreta-
tion to be given to corresponding but wholly dissimilar features of the
other.1°

This act is highly remedial, and the public, no less than the employees
themselves, is vitally interested in its enforcement. For this reason, the
law should be liberally construed.11 Although penal jn the aspect of a ‘pen-
alty provided for its violation, the act is not, strictly speaking, a penal

statute, requiring the application of the rules of strict construction.1?

8. Offenses not to be engrafted.—
United States v. Missouri Pac. R. Co.,
130 C. C. A. 5, 213 Fed. 169; North-
ern Pac. R. Co. v. United States, 129
C. C. A. 514, 213 Fed. 162, 167.

9. Weight of construction by inter-
state commerce commission. — San
Pedro, etc., R. Co. v. United States, 136
Cc. C. A. 343, 220 Fed. 737. See also,
Osborne wv. Cincinnati, etc., R. Co., 158
Ky. 176, 164 S. W. 818. e

10. Analogy with Safety Appliance
Act.—United States v. Chicago, etc.,
R. Co. (D. C.), 219 Fed. 632.

“When, in United States v. Kansas
City, etc, R. Co. 121 C. C. A. 136,
202 Fed. 828, the court spoke of the
safety appliance act as ‘a closely analo-
gous statute,’ it was considering the
general purpose of the act and the na-
ture of an action brought to recover
the penalty, and the pleadings and
procedure in such action. So in
United States v. St. Louis, etc., R. Co.
(D. C.), 189 Fed. 954, the court was
considering only the penal character of
the action.” United States v. Chicago,
etc, R. Co. (D. C.), 219 Fed. 632, 633.

11. Entitled to liberal construction.
—United States v. Northern Pac. R.
Co. (D. C.), 213 Fed. 539; San Pedro,
etc, R. Co. v. United States cc. G.
A.), 213 Fed. 326; United States v.
Kansas City, etc., R. Co., 121 C. C. A.
136, 202 Fed. 828; St. Joseph, etc., R.

Co. v. United States (C. C. A.), 232
Fed. 349; United States v. Atlantic,
etc., R. Co., 128 C. C. A. 275, 211 Fed.
897; Atlantic, etc., R. Co. v. United
States, 128 C. C. A. 281, 211 Fed. 903;
United States v. New York, etc., R.
Co. (D. C.), 216 Fed. 702; United
States v. Great Northern R. Co. (C. C.
A.), 220 Fed. 630; Delano v. United
States, 136 C. C. A. 243, 220 Fed. 635;
United States v. Kansas City, etc. R.
Co. (D. C.), 189 Fed. 471.

“The act being remedial, for the pur-
pose of preventing accidents to trains
and consequent injuries to passengers
and employees, it is the duty of the
courts to construe it liberally in order
to accomplish the purpose of its en-
actment. Johnson v. Southern Pac.
Co., 196 U. S. 1, 49 L. Ed. 363, 25 S.
Ct. 158.” United States v. Kansas City,
etc. R. Co. (D. C.), 189 Fed. 471, 475.

“It is rather a remedial statute
which should be so construed, if ‘its
language permits as to best accom-
plish the protective purpose for which
it was enacted.” United States v. At-
lantic, etc., R. Co. 128 C. C. A. 275,
211 Fed. 897, 900; Atlantic, etc., R. Co.
wv. United States, 128 C. C. A. 281, 211
Fed. 903.

12. Not penal.—United States wv.
Grand Rapids, etc., R. Co., 140 C. C.
A. 177, 224 Fed. 667; United States w.
Kansas City, etc. R. Co. 121 C. C. A.
§ 292 THE HOUR OF SERVICE ACT. 614

§ 292. Operation on State Legislation.—The relative supremacy of
the state and national power over interstate commerce needs but little com-
ment. However, it may be said that the Supreme Court of the United
States has classified the commerce field into three classes of legislative acts:
The first, where the states have plenary power and congress has no right
to interfere, which concerri the strictly internal commerce of the state, and,
while the regulation may affect interstate commerce indirectly, its bearing
is so remote that it cannot be termed in any just sense interference. The
second includes cases of what may be termed “concurrent jurisdiction,”
where the states may act in the absence of congressional action. Obviously
this field must be one where congress has right and power to act if it sees fit,
‘but where some restraint and regulation is necessary, and the authority
therefor is deemed to be conceded to the states pending nonaction of con-
gress. The third is the class where, from the very intimacy with and direet-
ness of effect upon interstate commerce of any legislative action, and na-
tional scope of the subject of legislation, it is presumed that the refraining
of congress from promulgating any regulations must be considered to de-
clare a policy that the subject shall be free from regulation. Pretty ob-
viously, under the decisions of the Supreme Court of the United States,
the act we are considering must fall in the second class,!2 so where there is
conflict the state legislation must give way. Indeed when congress acts in
such a way as to manifest its purpose to exercise its constitutional author-
ity, the regulating power of the state ceases to exist.14

Co. v. Washington, 222 U. S. 370, 56
L. Ed. 237, 32 S. Ct. 160, reversing (s.
c.), 53 Wash. 673, 102 Pac. 876; Erie
R. Co. v. New York, 233 U. S. 671, 58

136, 202 Fed. 828; United States v.
St. Louis, etc., R. Co. (D. C.), 189 Fed.
954; United States v. Chicago, etc., R.
Co. (D. C.), 197 Fed. 624. See, also,

United States v. Ramsey, 116 C. C. A.
568, 197 Fed. 144, 42 L. R. A, N.S,
1031.

“This is not a criminal statute, and
therefore is not governed by the rule
of strict construction.” United States
v. Atlantic, etc., R. Co., 128 C. C. A.
275, 211 Fed. 897, 900; Atlantic, etc., R.
Co. v. United States, 128 C. C. A. 281,
211 Fed. 903.

“And while the statute is penal in
its nature, it is in some aspects reme-
dial and should be so construed as to
promote the apparent policy and ob-
ject of the legislature, and not entirely
defeat its purpose.” United States v.
Chicago, etc, R. Co. (D. C.), 197 Fed.
624, 627.

18. Supremacy of federal laws in
general.—Covington, etc, Bridge Co.
v. Commonwealth, 154 U. S. 204, 38
L. Ed. 962, 14 S. Ct. 1087; State v. Chi-
cago, etc. R. Co. 136 Wis. 407, 117
N. W. 686, 688, 19 L. R. A., N. S., 326;
State v. Texas, etc. R. Co., 58 ‘Tex.
Civ. App. 410, 124 S. W. 984.

14. United States—Northern Pac. R.

L. Ed. 1149, 34 S. Ct. 756, 52 L. R. A,
N. S., 266, Ann. Cas. 1915D, 138.

New York—People v. New York
Cent., etc, R. Co., 163 App. Div. 79,
148 N. Y. S. 495.

Wisconsin.—State v. Chicago, etc., R.
Co., 1836 Wis. 407, 117 N. W. 686, 19
L. R. A. N. S., 326.

The hours of service act of March
4, 1907, c. 2939, 34 Stat. 1415, invali-
dates the provisions of Laws N. Y.
1897, c. 415, as amended by Laws
1907, c. 627. Erie R. Co. v. New York,
233 U. S. 671, 58 L. Ed. 1149, 34 S.
Ct. 756, 52 L. R. A., N. S., 266, Ann.
Cas. 1915D, 138.

In Northern Pac. R. Co. v. Wash-
ington, 222 U. S. 370, 56 L. Ed. 237,
32 S. Ct. 160, it was held that congres-
sional legislation as to hours of serv-
ice so completely occupied the field

as to prevent state legislation om
that subject. In Erie R. Co. vw.
New York, 233 U. S. 671, 58 L. Ed.

1149, 34'S. Ct. 756, 52 L. R. A, N.
S., 266, Ann. Cas. 1915D, 138, a like
ruling was made in a case where the
615

CONSTRUCTION AND OPERATION.

§ 292

The fact that congress when it enacted the statute, postponed its opera-

tion for a year did not leave the field open for state legislation.

The stat-

ute was in force from the time of its enactment, though its operation was
deferred, precluding state regulations on the subject.15 It is manifest that
it would cause the statute to destroy itself to give to the clause postponing
its operatoin for one year the meaning which must be affixed to it in order
to hold that, during the year of postponement, state police laws applied.

New York law punished a railroad
company for allowing an employee to
work more than eight hours when the
federal statute punished the company
for employing him for more than nine
hours—even though it was argued that
the state legislation was not in con-
flict with the federal act, but rather in
aid of it.

“We are therefore constrained to
the conclusion that restriction of hours
of labor of telegraph operators en-
gaged in moving interstate trains or
traffic is a field of legislation forbid-
den to the states by the federal con-
stitution, but also that the limitation
contained in our statute is in conflict
with and in negation of the act of con-
gress, and can not be enforced as to
such employees.” State wv. Chicago,
etc., R. Co., 136 Wis. 407, 117 N. W
686, 690,19 L. R.A, N. S., 326.

The strong trend of the recent de-
cisions in the United States Supreme
Court on the subject of the conflicting
jurisdiction in the matter of interstate
commerce is to the effect that where
congress has legislated upon the sub-
ject such legislation becomes exclu-
sive, and there is no room for state leg-
islation. The state laws, so far as they
cover the same field or relate to the
same subject, are superceded abso-
lutely by the federal laws. Repeat-
edly, in different phraseology, this idea
has been expressed’ by the Supreme
Court of the United States. The lan-
guage is so emphatic and unequivocal
that it is impossible to misinterpret it.
People v. New York Cent., etc., R. Co.,
163 App. Div. 79, 148 N. Y. S. 495, 496;
State v. Texas, etc. R. Co. 58 Tex.
Civ. App. 410, 124 S. W. 984, 985.

15. During year before law became
operative.—United ‘States—Erie R. Co.
v. New York, 233 U. S. 671, 58 L. Ed.
1149, 34 S. Ct. 756, 759, 52 L. R. A., N.
Si 266, Ann. Cas. 1915D, 138; Northern
Pac. R. Co. v. Washington, 222 U.S.
370, 56 L. Ed. 237, 32 S. Ct. 160. See
also, Louisville, etc., R. Co. v. Hughes
(D. C.), 201 Fed. 727.

Missouri.—State v. Missouri Pac. R.
a4 os Mo. 658, 111 S. W. 500, 20 L.

, N. S., 284.

New York—People v. Erie R. Co.,
135 App. Div. 767, 119 N. Y. S. 873,
reversed in 198 N. Y. 369, 91 N. E.
849, but affirmed in 34 S. Ct. 756.

Texas —State v. Texas, etc, R. Co.,
58 Tex. Civ. App. 410, 124 S. W. 984.

Wisconsin—State v. Chicago, etc., R.
Co., 136 Wis. 407, 117 N. W. 686, 19
L. R. A., N. S., 326.

On March 4, 1907, before the act
now under consideration was passed,
and even before it was introduced in
the Wisconsin Legislature, congress
had legislated fully upon the subject
of hours of labor for the very class of
employees affected by § 1816m. This
was a clear declaration by congress of
‘a will and policy that, so far as the
regulation and safeguarding of inter-
state commerce might properly be af-
fected by prescribing hours of labor
for such employees, the subject should
be under control of congress, and not
of the state legislatures. Doubtless
the state Legislatures persisted in
their power to protect the safety of
their respective communities by rea
sonably regulating the hours of serv-
ice of railroad employees, with the lim-
itation, however, that they must not
thereby restrict or effectively regulate
interstate commerce. Under many de-
cisions of the United States Supreme
Court the states are thereby precluded
from enacting any law of this sort
which’ would have that effect, for the
field of policy and legislation was thus
assumed by Congress and withdrawn
from state competency. State wv. Chi-
cago, etc., R. Co., 136 Wis. 407, 117 N.
W.. 686, 689, ie Lk. &, N. S., 326.

Contra.—Lloyd v. North Carolina R.
Co., 151 N. C/ 536, 66 S. E. 604, 19 Am.
& Eng. Ann. Cas. 384; Hoxie v. New
York, etc, R. Co., 82 Conn. 352, 73
Atl. 754,17 Am. & Eng. Ann. Cas. 324.

An act of the Montana Legislature
regarding hours of labor was not re-
pealed by the passage of the act of
congress (Mar 4, 1907) until the date
upon which the federal act came into
operation. State v. Northern Pac. R.
Co., 36 Mont. 582, 93 Pac. 945, 15 L,.
R. A., N. S., 134, 13 Am. *& Eng. Ann.
Cas. 144.
§ 292 THE HOUR OF SERVICE ACT. 616

In the first place, there could be no conceivable reason for the postponing
provision, if it was contemplated that the prohibitions of state laws should
apply in the meantime. This is true because if it be that it was contem-
plated that the subject dealt with should be controlled during the year by
state laws, the postponement of the prohibition of the act could accomplish
no possible purpose. In the second place, the obvious suggestion is that
the purpose of congress in giving time was to enable the necessary adjust-
ments to be made by the railroads to meet the new conditions created by
the act,—a purpose which would of course be frustrated by giving to the
provision as to postponement a significance which would destroy the very
reason which caused it to be enacted.1® In Erie R. Co. v. New York, 233
U.S. 671, 58 L. Ed. 1149, 34 8. Ct. 756, 759, 52 L. R. A., N. S., 266, Ann.
Cas. 1915D, 138, the court said:

“Tt was given application to an instance like that in the case at bar in
Northern Pac. R. Co. v. Washington, 222 U. S. 370, 56 L. Ed. 237,
32 S. Ct- 160. The case arose upon an asserted conflict between
the hours of service law of March 4, 1907, the one involved here,
and a law of the state of Washington which also regulated the
hours of railway employees. The latter became effective June 12, 1907;
that is, before the time the federal hours of service law was in force,
but after its enactment. ‘The state act resembled the federal act, and
prohibited the consecutive hours of service which had taken place on
the Northern Pacific Railroad, and on account of which the action was
brought by the attorney general of the state against the company for
the penalties prescribed for violation of the act. The railroad com-
pany admitted the facts, but denied liability under the act, asserting
that its train was an interstate train and was not subject to the control
of the state, because within the exclusive control of congress on that
subject. The trial court granted a motion for judgment on the plead-
ings, which was affirmed by the supreme court of the state. That court
held that the train was an interstate train, and conceded that congress
might prescribe the number of consecutive hours an employee of a car-
rier so engaged should be required to remain on duty; and when it
so legislated upon the subject, its act superseded any and all state leg-
islation on that particular,subject. But the court held that the act of
congress did not apply because of its provision that it should not take
.effect until one year after its passage, and until such time it should
be treated as not existing. We reversed the judgment on the ground
that the view expressed was not ‘compatible with the paramount power
of congress over interstate commerce,’ and we considered it elementary
that the police power of the state could only exist from the silence of
congress upon the subject, and ceased when congress acted or manifested
its purpose to call into play its exclusive power. It was further said
that the mere fact of the enactment of the act of March 4, 1907, was
a manifestation of the will of congress to bring the subject within its
control, and to reason that because congress chose to make its prohibi-
tions take effect only after a year, it was intended to leave the subject to

16. Effect of allowing state to regu- Pac. R. Co. v. Washington, 222 U. S.
late during ‘postponement.—Northern 370, 56 L. Ed. 237, 32 S. Ct. 160.
617 CONSTRUCTION AND OPERATION.

{
state power, was to cause the act of congress to destroy itself. There
was no conceivable reason, it was said, for postponing the prohibitions
if it was contemplated that the state law should apply in the mean-
time. The reason for the postponement, it was pointed out, was to
enable the railroads to meet the new conditions.”

§ 292

It is only by virtue of its power over interstate commerce that this act
of congress is supreme, and the states’ power over its purely internal affairs
is not affected.17 So it has been urged that, even if it be beyond the power
of the state to restrict the services of an operator engaged in moving in-
terstate trains, it is competent to so restrict as to one engaged exclusively
upon trains or business wholly within the state, and that the law may be
construed as so limited, and its validity as so limited be sustained. The
principle invoked is doubtless sound, if it is reasonably possible to separate
the permissible from the forbidden, and to believe that the legislature in-
tended by the act to effect the one and omit the other. On this subject the
Employer’s Liability Cases,18 are entirely germane and controlling. It
is there pointed out that by its terms the act is aimed simply at the employer,
and makes no distinction in denunciation of his acts, whether they be done
in interstate or intrastate business, so that it in terms regulates purely do-
mestic acts and transactions. But a state statute is even more objectionable
in this regard than the Employer’s Liability Act, when by its terms it is
directed to every corporation operating a line of railroad, in whole or in
part, in the state, thus expressly including those who are engaged in inter-
state commerce. But it is also open to another objection, held to be fatal,
that it restricts the employment of all operators, without discrimination as
to the character of their services. This alone, under the reasoning of the
Employer’s Liability Act, would condemn a state act; for it is matter of
common knowledge, that any operator who works upon trains or transpor-
tation wholly within the state also necessarily and at the same time works
upon interstate trains and transportation.1*

When a state legislature has in terms undertaken to restrict hours of work
of employees engaged in safeguarding and conducting interstate commerce,
as well as domestic, a contradictory meaning cannot be imported to the
express words. Neither can there be felt any certainty that the generality

17. Baltimore, etc., R. Co. v. Inter-
state Commerce Comm., 221 U. S. 612,
55 L. Ed. 878, 31 S. Ct. 621.

18. Rights over intrastate commerce
—Construing state act to apply to such
only.—Howard v. Illinois Cent. R. Co.,
207 U. S. 463, 52 L. Ed. 297, 28 S. Ct.
141.

: e

19. State v. Missouri Pac. R. Co., 212

‘Mo. 658, 111 S. W. 500, 20 Ty. -R. Ass

N. S., 284. See also, State v. Wabash
R. Co., 238 Mo. 21, 141 S. W. 646.

“The. direction and dispatching of

every train on an interstate railway

necessarily involves knowledge in the
train dispatcher of all other trains
which are in the same vicinity at the
same time, and also ability to control
such other trains.” State v. Chicago,
etc., R. Co., 186 Wis. 407, 117 N. W.
686, 690, 19 L. R. A. N. S., 326.

“In view of the unity and indivisi-
bilty of the service of the train crew
and the paramount character of the
authority of congress to regulate com-
merce, the act of congress was exclu-
sively controlling.” Northern Pac. R.
Co. v. Washington, 222 U. S. 370, 56
L. Ed. 237, 32 S. Ct. 160.
§§ 292-293 THE HOUR OF SERVICE ACT. 618

of the restriction was not an essential element in the entire legislative
scheme, so that it could be believed the legislature would have imposed upon
domestic commerce, or on employees exclusively engaged therein, burdens
not also resting on entirely similar acts of employees involving interstate
trains or commerce.2

It was thought by the court of appeals of New York! that as this
act had only prescribed a general minimum limit of safety applicable to
average conditions throughout the country in the movement of inter-
state traffic, a state statute did not trespass upon forbidden territory and
become obnoxious because, in response to special conditions prevailing
within its limits, it has raised such limit of safety. That there was no con-
flict; the state had simply supplemented the action of the federal authorities.
It is the same as if congress had enacted that the classes of employees named
might be employed for nine hours or less, and the state had then fixed the
lesser number, which was left open by the federal statute. The form of
the latter fixing the outside limit but not expressly legalizing employment up
to that limit, fairly seemed to have invited and to have left the subject open
for supplemental state legislation if necessary. But it is held otherwise 22
and in Erie R. Co. v. New York, 233 U. S. 671, 58 L. Ed. 1149, 34 S. Ct.
756, 760, 52 L. R. A., N. S., 2v0, Ann. Cas. 1915D, 138, the court said:

“The reasoning of the opinion and the decision oppose the contention of
defendant in error and of the court of appeals, that the state law and
the federal law can stand together, because, as expressed by the court
of appeals, ‘the state has simply supplemented the action of the federal
authorities,’ and, on account of special conditions prevailing within its
limits, has raised the limit of safety; and the form of the federal stat-
ute, although ‘not expressly legalizing employment up to that limit,
fairly seems to have invited and to have left the subject open for sup-
plemental state legislation if necessary.’ We realize the strength of
these observations, but they put out of view, we think, the ground of
decision of the cases, and indeed, the necessary condition of the su-
premacy of the congressional power. It is not that there may be divi-
sion of the field of regulation, but an exclusive occupation of it when
congress manifests a purpose to enter it. Regulation is not intended to
be a mere wanton exercise of power. It is a restriction upon the man-
agement of the railroads. It is induced by the public interest or safety,
and the ‘hours of service’ law of March 4, 1907, is the judgment of
congress of the extent of the restriction necessary. It admits of no
supplement; it is the prescribed measure of what is necessary and suf-
ficient for the public safety, and of the cost and burden which the rail-
road must endure to secure it.”

§ 293. Time of Taking Effect.—Owing to the probable necessity of
changing in some instances division pofnts, entailing the removal of em-

20. Restricting state statute to intra- 22. Erie R. Co. v. New York, 233 U.
state commerce.—State v. Chicago, S. 671, 58 L. Ed. 1149, 34 S. Ct. 756,
etc., R. Co. 136 Wis. 407, 117 N. W. 52 L. R. A, N. S., 266, Ann. Cas.
686, 690, 19 L. R. A. N. S., 326. 1915D, 138; State v. Texas, etc.,.R. Co.,

21. State legislation as supplemental. 58 Tex. Civ. App. 410, 124 S. W. 984.
—People v. Erie R. Co., 198 N. Y. 369,

91 N. E. 849.
619 CONSTRUCTION AND OPERATION. §§ 293-294

ployees, and to permit ample time to readjust themselves to the requirements
of the law, it was not to become operative for one year after its approval.28

§ 294. Employer and Employee to Whom Applicable.—By the first
section thereof the act is made to apply “to any common carrier or carriers,
their officers, agents and employees, engaged in the transportation of pas-
sengers or property by railroad” from one state to another; and the term
“employees” as used is declared “to mean persons actually engaged in or
connected with the movement of any train.” Congress, in passing the act
in question, must have intended to use the term “common carrier” in the
usual and ordinary acceptation of the term, to wit, as one engaged in the
business of carrying persons and property from one place to another, for
compensation, for all who should apply to have their goods transported or
to be transported in person.24 So it seems clear that a receiver, in the op-
eration of a railroad is a common carrier within the meaning of the stat-
ute.25

It has been repeatedly held by the Supreme Court of the United States
that, whenever a commodity has begun to move as an article of trade from
one state to another, commerce in that commodity between the states has
commenced, and that such commerce is subject in all respects to the para-
mount laws of the United States. Within this rule, employees of a railway
company, engaged in hauling freight, from some intermediate point on the
railway line to another point where it is taken up by the regular trains for
interstate shipment, are “employed in interstate commerce,” and the rail-
way company itself is engaged in interstate commerce.?®

The fact that a train runs only between points in the same state, does not
prevent its being an interstate train.27 In Northern Pac. R. Co. v. Wash-
ington, 222 U. S. 370, 56 L. Ed. 237, 32 S. Ct. 160, the court said:

“The train, although moving from one point to another in the state of
Washington, was hauling merchandise from points outside of the state,
destined to points within the state, and from points within the state to
points in British Columbia, as well as in carrying merchandise which
had originated outside of the state, and was in transit through the
state to a foreign destination. This transportation was interstate com-
merce, and the train was an interstate train, despite the fact that it
may also have been carrying some local freight.”

Thus a fireman on a work train, wholly within a state but brought from
another state with material to be used on the interstate roadbed of the de-

28. Northern Pac. R. Co. v. Washing- 26. Employee engaged in interstate
ton, 222 U. S. 370, 56 L. Ed. 237, 32S. commerce.—United States v. Chicago,
Ct. 160, 162. etc., R. Co. (D. C.), 197 Fed. 624, 626.

24, Common carrier defined.—United 27. Trains running in state only.—
States v. Ramsey, 116 C. C. A. 568, 197 Northern Pac. R. Co. v. Washington,
Fed. 144, 42 L. R. A, N. S., 1081. 222 U. S. 370, 56 L. Ed. 237, 32 S. Ct.
. 25. Receiver as common carrier. 160; United States v. Chicago, etc., R.

United States v. Ramsey, 116 C. C. A. Co. (D. C.), 197 Fed. 624, 626.
568, 197 Fed. 144, 42 L. R.A, N.S,
1031.
§§ 294-295 THE HOUR OF SERVICE ACT. 620
fendant at a point beyond where the offense was committed, is employed in
interstate commerce.28 But on the other hand an employee upon a railroad
“work train” operated wholly within one state, by a railroad corporation
engaged in interstate commerce, upon a line of railroad constituting a part
of the company’s through highway of interstate commerce, does not fall

within the provisions of the act.?®

§ 295. Enforcement by Interstate Commerce Commission.—The
authority was conferred by the act upon the interstate commerce commis-
sion to use “all powers granted” to it, for its enforcement.3° If under this
section it had not authority to require sworn monthly reports of cases in-
volving violations and giving the reason and explanation for such violation,
or if there was no violation a sworn statement to that effect, the authority
was embraced in the subsequent amendment.8! And although there might
have been doubt as to the adequacy of the authority of the commission, un-
der the law as it formerly stood, to require these reports, there can be none
now, in view of the amendment of § 20 of the act to regulate commerce by
the act of June 18, 1910, chapter 309, 36 Stat. at L. 556. As amended, this
section contains the following provision: “The commission shall also have
authority by general or special orders to require said carriers, or any of
them, to file monthly reports of earnings and expenses, and to file period-
icals or special, or both periodical and special, reports concerning any mat-
ters about which the commission is authorized or required by this or any

28. Same—Employee on work train.

f thereafter he again went back into in-
—St. Joseph, etc, R. Co. v. United

terstate commerce service. Held, that

States (C. C. A.), 232 Fed. 349.

“The fact that this fireman was em-
ployed on a work train was wholly im-
material, if it was in fact an interstate
train. The act of Congress makes no
such exception, and the courts cer-
tainly are powerless to do so. The
gist of the offense is that the carrier
is engaged in the transportation of
passengers or property by railroad
from one state to another, and that the
employee is actually engaged in or
connected with the movement of any
train. “Any train” is certainly broad
enough to include a work train.” St.
Joseph, etc., R. Co. v. United States
(C. C. A.), 232 Fed. 349.

29. United States v. Chicago, etc., R.
Co. (D. C.), 218 Fed. 701, 702; United
States v. Chicago, etc., R. Co. (D. C.),
219 Fed. 632. .

At one time C. an engineer was reg-
ularly employed by the defendant in
moving interstate commerce; thereafter
for a period of 59 days he was regu-
larly employed in operating a work
train, wholly within a state, for the
purpose of filling (not repairing) a
bridge upon a line of road which was
a part of an interstate highway; that

the fact that he had been engaged in
the movement of interstate commerce
and subsequently resumed that kind of
service is without legal significance,
and a stipulation that “Crown was po-
tentially subject to recall,” is without
substance, meaning only that if at any
time the defendant had need of and
desired to use his services in moving
interstate commerce, and if at such
time he was willing to render such
service, the defendant would so employ
him. “This is not a case where there
was a commingling of service, where the
employee was one hour or one day
operating in interstate and another
hour or another day operating in in-
trastate commerce; nor is it a case
where, though not in a literal sense
actually engaged in moving an inter-
state train, the employee ‘stands and
waits’ to actually engage in such serv-
ice.” United States vw. Chicago, etc.,
R. Co. (D. C.), 219 Fed. 632, 635.

30. Authority.—See § 4 of the act.

31. Act June 18, 1910, c. 309, § 14, 36
Stat. 555—Baltimore, etc, R. Co. v.
Interstate Commerce Comm., 221 U.
S. 612, 55 L. Ed. 878, 31 S. Ct. 621.
621 CONSTRUCTION AND OPERATION § 295

other law to inquire or to keep itself informed, or which it is required to
enforce; and such periodical or special reports shall be under oath whenever
the commission so requires.”

Reports on Violations.—Under the orders of the interstate commerce
commission carriers are required to make monthly reports of all violations
of the act. The requirement to make this report is mandatory and the
carrier is not excused for its delay by reason of a strike existing at the time
the report was required.32

The railroad is liable under the orders to a penalty should it fail to re-
port a violation, even though under the act the violation was excusable.
For it is not within the spirit of the act that the employer should be the sole
judge of when an emergency existed sufficient to warrant extra service.
So that extra service when rendered in an emergency, although the railroad
would be excused from a penalty, still it should report the same to the in-
terstate commerce commission so that they might judge as to the existence
of an emergency warranting the excessive service.2? But when the railroad
in good faith under the belief that it was not required to report excusable
violations, fails to do so, it will be penalized $100 for the failure to make
the report of the extra hours of service rendered by each of four employees,
but should not be penalized the further sum of $100 a day for each of the
days it was in default.24 The terms of the statute fail to declare the inno-
cent omission of an instance of excessive service from or the mistake in a
report an offense punishable by the fines it specifies. Reason and authority
alike teach that the act of omitting from a periodical report filed in good faith
an instance or item which should have been included therein, or a mistake
in the information which the report contains, is not the offense of failing to
file any such periodical report. And the conclusion is that an omission by
a carrier from the periodical report of the instances of excessive service
of its employees made and filed in good faith within the time prescribed
therefor by the interstate commerce commission of one or more instances
that should have been included therein, or any mistake of law or fact therein
made in good faith, does not subject the carrier to liability for the penalties
or forfeitures denounced by that amendment for the failure to file a period-
ical report.35

32. Failure to make any report.—
United States v. Yazoo, etc, R. Co.
(D. C.), 203 Fed. 159. :

33. Omissions in reports when vio-

lation excusable.—United States v.
Baltimore, etc. R. Co. (D. C.), 226
Fed. 220.

34. United States v. Baltimore, etc.,
R. Co. (D. C.), 226 Fed. 220.

35. Mistakes and omissions in re-
ports.—Northern Pac. R. Co. v. United
States, 129 C. C. A. 514, 213 Fed. 162,
168; Elgin, etc, R. Co. wv. United
States, 142 C. C. A. 107, 227 Fed. 411,

413; Oregon-Washington K., etc., Co.
v. United States, 138 C. C. A. 367, 222
Fed. 887.

Where a declaration charged the de-
fendant with a failure to make a re-
port, and the stipulated facts show a
report to have been made, but omitted
facts deemed necessary in such a re-
port, the averment being contrary to
the conceded facts, a verdict for the
defendant should be directed. Elgin,
etc., R. Co. v. United States, 142 C. C.
A. 107, 227 Fed. 411.
CHAPTER XLVI.

CoMPUTATION OF PERIODS.

1. When Periods Begin, § 296.
2. Effect of Temporary Relief, § 297.
3. Changes in Class of Work, § 298.

§ 296. When Periods Begin.—The act does not designate when the
period of service’'is to begin or end but only that employees shall not be
required or permitted to remain “on. duty” longer than the hours specified.
It is doubtful if any definition of the words ‘on duty” can be clearer than
the words themselves. Manifestly, however, they mean to be either actually
engaged in work or to be charged with present responsibility for such should
occasion for it arise.1 In United States uv. Chicago, etc., R. Co. (D. C.),
195 Fed. 783, 785, the court said:

“An employee is on duty when he is at his post in obedience to rules or
requirements of his superiors, and ready and willing to work whether
actually at work or waiting for orders or for the removal of hindrances
from any cause. The words ‘on duty’ appear to have been intelligently
chosen and used in the composition of the statute to bar all excuses for
noncompliance with its requirements by any pretext of misunderstand-
ing its meaning.”

The time that the employee may occupy in going from his home or any
other place to the point at which his duties connected with the movement of
the train are to begin should not be counted in estimating the hours of serv-
ice he is employed, because, during this time, he is not, within the meaning
of the act, engaged in any service connected with the movement of the train.
He is only preparing to put himself in a position where he can render some
service connected with the movement of a train.?

However employees who are required by rules of the company to report
before the time of their actual service are “on duty” within the meaning

1. When begun.—United States v.
Denver, etc., R. Co. (D. C.), 197 Fed.
629.

2. Employee going to work.—Os-
borne v. Cincinnati, etc., R. Co., 158
Ky. 176, 164 S. W. 818, 822.

Employee “dead heading” as on duty.
—“The interstate commission, how-
ever, has promulgated rule No. 74, pro-
viding that ‘employees “deadheading”
on passenger trains or on freight trains
and not required to perform, and not
held responsible for the performance
of, any service or duty in connection

622

with the movement of the train upon
which they are “deadheading,” are not
while so ‘“deadheading” “on duty” as
that phrase is used in the act regulat-
ing the hours of labor.’ This construc-
tion, although it does not have the
binding force of a court decision, is yet
entitled to great weight on account of
the important duties this high com-
mission exercises in administering
these remedial federal statutes, and we
concur in its soundness when applied
to the facts of this case.” Osborne v.
Cincinnati, etc, R. Co., 158 Ky. 176,
164 5. W. 818, 822.
623 COMPUTATION OF PERIODS.

§ 296

of the act,3 and they remain so though there be a further delay in departure.
Thus where a crew having reported 15 minutes ahead of time pursuant to a
rule of the company requiring them to do so, they were engaged in work
necessary to the trip—the conductor getting his bills and orders, the brake-
men were looking over the train to detect defective cars and equipment and
in going to the roundhouse to bring the engines and to couple them to the
train. With all of these unperformed the train could not have moved.
With some unperformed the train would probably have moved only to de-
struction for lack of orders or of safe equipment. These duties were quite
as important as those after the train started, and constituted quite as great
a strain upon the nervous and physical energies as arose after the train was
actually in motion. Such seems to have been as much in the congressional
mind in declaring what length of duty shall call for rest as those connected
with a train actually moving.5

The fact that it was not the custom of the company to strictly enforce
the rules requiring them to be on hand before time, would make no differ-
ence in a case where it was complied with by the employee. That no com-
pensation was paid for this preliminary work has been held not to detract
from this view.?. In United States v. Denver, etc., R. Co. (D. C.), 197 Fed.

629, 631, the court said:

3. Rules requiring reporting ahead of
time.—United States v. Denver, etc.,
R. Co. (D. C.), 197 Fed. 629; San
Pedro, etc., R. Co. v. United States,
130 C. C. A. 28, 213 Fed. 326, Ann. Cas.
1914D, 1238; United States v. Illinois
Cent. R. Co. (D. C.), 180 Fed. 630;
United States v. Kansas City, etc, R.
Co. (D. C.), 189 Fed. 471, 478.

“It is not denied that the half hour
before the schedule time for leaving
the initial station should be counted,
the fireman having reported as re-
quired by the rules (United States v.
Illinois Cent. R. Co. (D. C.), 180
Fed. 630; United States v. Denver, etc.,
R. Co. (D. C.), 197 Fed. 629); nor the
further delay in departure (United
States v. Chicago, etc., R. Co. (D. C.),
195 Fed. 783).” San Pedro, etc. R.
Co. v. United States (C. C. A.), 213
Fed. 326, 329.

4. United States v. Chicago, etc., R.
Co. (D. C.), 195 Fed. 783.

5. United States v. Denver, etc. R.
Co. (D. C.), 197 Fed. 629.

6. Customary violation of rule. —
United States v. Illinois Cent. R. Co.
(D. C.), 180 Fed. 630.

“T do not think the custom of the
company not to strictly enforce the
rule makes any difference. This man
complied with the rule. He arrived at
the engine 30 minutes before the leav-
ing time of the train, and was actually
engaged in doing the things required

by the rule; and the question here is
whether he was during that time,
within the meaning of the act, actually
engaged in or connected with the
movement of that train. That is the
question here. In my opinion this
man was on duty, within the meaning
of the act, from the time he went there
and commenced to supervise, or over-
look, that engine in preparation for the
trip. It does not make any difference
whether he was paid for this time or
not. That was the time his work and
the strain on him began. The work of
an engineer, an employee of the rail-
road, begins when under the rule of
the company he is there and is at work
in connection with the preparation of
the engine for the moving of the train.
He must look over that engine. He
must see that it is oiled up. He must
see that the air brakes are all right.
He must move the engine down over
the tracks and across the switches to
connect it with the train. And in my
opinion he is on duty, within the mean-
ing of the act, during the time he is
doing these things. If he goes there
a half an hour before the time to start
to do these things, during the time he
is there doing them he is on duty.”
United States uv. Illinois Cent. R. Co.
(D. C.), 180 Fed. 630.

7. No compensation for extra work.
—United States v. Denver, etc., R. Co.
(D. C€.), 197 Fed. 629.
§§ 296-297

THE HOUR OF SERVICE ACT.

624

“The defendant can hardly be heard to contend this in the face of its rule

requiring this very service.

Presumably, however, in fixing a rate of

compensation beginning in terms only with the starting time, the em-
ployees and the railroad took into consideration the rule just mentioned,
so that after all this preliminary work was not really done gratuitously,
but was merged into a scale of wages mutually satisfactory to all con-
cerned. At any rate, labor does not cease to be such because not paid
for, nor does duty cease to exist because performed without compensa-
tion in connection with duty for which there was compensation.”

§ 297. Effect of Temporary Relief.—Any temporary lay off does not
relieve the employees from duty, and is not sufficient to break the contin-

uity of service.

Thus in the case of an indefinite lay off as waiting on a

delayed train or other contingency, the crew is still on duty,’ though they

had tied up the train and engaging the time by reading or sleeping.®

And

a definite release of a train crew for an hour and a half, which would
amount to the same thing as being idle while in service, being of no benefit
to them and serving no substantial purpose save to obviate the penalty im-
posed by law does not break the continuity of service.1°

The time too that the employees operating trains are at meals is to be
counted as part of their hours of service,!! and in case of operators they are

8. Indefinite lay off.—Missouri, etc.,
R. Co. v. United States, 231 U. S. 112,
58 L. Ed. 144, 34 S. Ct. 26; United
States v. Chicago, etc., R. Co. (D. C.),
197 Fed. 624.

“One of the delays was while the en-
gine was sent off for water and repairs.
In the meantime the men were wait-
ing, doing nothing. It is argued that
they were not on duty during this
period, and that if it be deducted, they
were not kept more than sixteen hours.
But they were under orders, liable to
be called upon at any moment, and not
at liberty to go away. They were
none the less on duty when inactive.
Their duty was to stand and wait.”
Missouri, etc., R. Co. v. United States,
231 U. S. 112, 58 L. Ed. 144, 34 S. Ct.
26, 27.

“A delay under the circumstances
[awaiting the passing of another train]
here disclosed constituted at most
simply ‘a trivial interruption,’ such as
under United States v. Atchison, etc.,
R. Co., 220 U. S. 37, 44, 55 L. Ed. 361,
31 S. Ct. 362, 363, ‘will not be consid-
ered.’ To hold otherwise will be prac-
tically to nullify the statute.” United
States v. Denver, etc., R. Co. (D. C.),
197 Fed. 629, 632.

9. United States v. Denver, etc., R.
Co. (D. C.), 197 Fed. 629.

10. Definite lay off—Northern Pac.
R. Co. v. United States (D. C.), 220
Fed. 108; United States v. Northern
Pac. R. Co. (D. C.), 213 Fed. 539.

“In the case of United States v. Chi-
cago, etc., R. Co. (D. C.), 197 Fed. 624,
I held that a lay-off of from 30 to 45
minutes for breakfast and of about 1
hour each for the midday and evening
meals did not break the continuity of
the service. I further held in the same
case that an indefinite lay-off of 3 hours
while the train crew was awaiting the
arrival of a helper engine at a small
way station did not break the contin-
uity of the service. This decision was
cited with apparent approval in the
case of Missouri, etc., R. Co. v. United
States, 231 U. S. 112, 58 L. Ed. 144, 34
S. Ct. 26. That case, it seems to me,
is controlling here.” United States v.
Northern Pac. R. Co. (D. C.), 213 Fed.
539, 540.

11. Meal time.—United States uv.
Ghisaee, etc., R. Co. (D. C.), 197 Fed.

“Nor should the brief periods al-
lowed for meals be deducted from the
time of service, in order to break its
continuity. The statute uses the terms,
sixteen consecutive hours,’ and ‘con-
tinuously on duty’; and while, literally
speaking, ‘consecutive’ means succeed-
ing one another in regular order, with
no interval or break, and the word
‘continuously’ means substantially the
same, yet it is manifest that no. such
strict or literal meaning of these ex-
pressions was _ intended.” United
States v. Chicago, etc., R. Co. (D. C.),
197 Fed. 624, 627.
625 COMPUTATION OF PERIODS. §§ 297-298
certainly so, when during the meal they are subject to call.12_ But on the
other hand it is held, and it would seem correct, that an operator in an
office continuously operated may be permitted to work over a period cover-
ing 10 hours, when during that time he is given an hour for meals, relax,

and recreation, and was only subject to call in case of an emergency.}3

§ 298. Changes in Class of Work.—It must be thought that congress
intended, at or before the expiration of the periods of service provided in
the act, an employee would be in need of rest and relaxation freed from all
care and responsibility for the safety of himself and others.14 So the courts
are uniform in holding that when the full period under the act has been
served, an employee cannot be permitted or required to serve additional
time, though in other employment.1® In Baltimore, etc., R. Co. uv. Interstate
Commerce Comm., 221 U. S. 612, 55 L. Ed. 878, 31 S. Ct. 621, 625, the
court said:

“If, then, it be assumed, as it must be, that, in the furtherance of its pur-
pose, congress can limit the hours of labor of employees engaged in
interstate transportation, it follows that this power cannot be defeated
either by prolonging the period of service through other requirements
of the carriers, or by the commingling of duties relating to interstate
and intrastate operations.”

It has been so held with respect to train dispatchers, when the other work
was other than dispatching trains,1° and in the case of other employees who
had served as firemen, they could not serve additional time as watchmen on
their engines; when as such they were required to keep up the fires and
water,!7 and in this case it has been held that it is not a defense to such

12. At meals subject to call.—United
States v. Chicago, etc., R. Co. (D. C.),
219 Fed. 342.

The operator was always subject to
call whenever his services were re-
quired, both during meal hours and at
other times. It is well settled that,
within the meaning of the hours of
service act, brief periods allowed for
meals and other purposes do not in-
terrupt the continuity of service. Un-
der the circumstances here shown, it
must be held that the operator was on
duty during the time he was_ taking
his meals. United States v. Chicago,
etc., R. Co. (D. C.), 197 Fed. 624, 627;
Missouri, etc., R. Co. v. United States,
231 U. S. 112, 119, 58 L. Ed. 144, 34
S. Ct. 26; United States v. Northern
Pac. R. Co. (D. C.), 213 Fed. 539;
United States v. Chicago, etc., R. Co.
(D. C.), 219 Fed. 342, 343.

18. Subject to call only in emer-
gency——United States v. Atchison,
etc., R. Co. (D. C.), 232 Fed. 196, 197.

See, also, United States v. Atchison, .

etc.,, R. Co., 220 U. S. 37, 55 L. Ed.
361, 31 S. Ct. 362.

Fed Act—40

14. Changes in class of work.—
United States v. Missouri, etc., R. Co.
(D. C.), 206 Fed. 847.

15. United States v. Missouri, etc.,
R. Co. (D. C.), 206 Fed. 847; Great
Northern R. Co. v. United States, 127
C. C. A. 595, 211 Fed. 309, affirming
United States v. Great Northern R.
Co. (D. C.), 206 Fed. 838; San Pedro,
etc., R. Co. v. United States, 130 C. C.
A. 28, 213 Fed. 326, Ann. Cas. 1914D,
1238; Northern Pac. R. Co. v. United
States (C. C. A.), 2138 Fed. 577; United
States v. New York, etc., R. Co. (D.
C.), 216 Fed. 702; Delano v. United
States, 136 C. C. A. 248, 220 Fed. 635.

16. United States v. Oregon Short
Line R. Co. (D. C.), 228 Fed. 561;
United States v. New York, etc. R.
Co. (D. C.), 216 Fed. 702; Oregon-
Washington R., etc, Co. v. United
States, 139 C. C. A. 142, 223 Fed. 596,
affirming 213 Fed. 688; Delano vw.
United States, 136 C. C. A. 243, 220
Fed. 635.

17. Firemen as watchmen.—United
States v. Missouri, etc., R. Co. (D.
C.), 206 Fed. 847; Great Northern R.
§ 298 THE HOUR OF SERVICE ACT. 626

service, that the tie-up of the train was due to an unprecedented storm, or
caused by an act of God.18 The service being so similar to the duties re-
quired in their regular occupation, as not to support the contention that this
additional service was not covered thereby, they being different only in
degree as on the run they required more time and were more strenuous.}®

One argument why this additional service was not: within the act was
that it did not come within the object and purpose of the act, to which in
Great Northern R. Co. v. United States, 127 C. C. A. 595, 211 Fed. 309, 313,
the court said:

“The argument of the plaintiff in error, in connection with the contention
now under consideration, is that the safety of its employees and of the
travelers upon its railroad was not imperiled by the employee remaining
on duty the additional period of eight hours as engine watchman. Con-
ceding that this might be true as to the employees and travelers upon
other trains, the fact would still remain that had the fireman, Burgen,
during this additional period while he was acting as engine watchman,
through fatigue and general debility due to excessive hours of labor,
permitted the water in his locomotive to become so low that an ex-
plosion would have been caused thereby, his own safety, and perhaps
the safety of the other members of the crew of the train, would have
been imperiled.” 2°

But the argument most advanced and pressed was that such additional
service is not performed when the employee is “actually engaged in or con-

e

Co. v. United States, 127 C. C. A. 595, called, at 10:30 o’clock p. m. on July
211 Fed. 309, writ of error denied in 10th, it remained stationary on the sid-
234 U. S. 760, affirming United States ing, and no member of its crew, in-
v. Great Northern R. Co. (D. C.), 206 cluding Burgen, received or was
Fed. 838; San Pedro, etc. R. Co. v. obliged or permitted to receive any
United States, 130 C. C. A. 28, 213 order with reference to the future
Fed. 326, Ann. Cas. 1914D, 1238; movement of the train or engine. Bur-
Northern Pac. R. Co. v. United States gen, however, was permitted and re-
(C. C. A.), 213 Fed. 577; Great North- quired to remain upon the engine con-
ern ‘R. Co. v. United States, 134 C. C. tinuously thereafter, until 6 o’clock
A. 98, 218 Fed. 302, L. R. A. 1915D, the next morning, during which time
408; St. Joseph, etc. R. Co. v. United he was on duty as an engine watch-
States (C. C. A.), 232 Fed. 349. man, charged with the performance of

“Upon the arrival of the train at La no other duty or work than that of
Clede it was run into the siding or engine watchman.” United States v.
side track leading out of and into the Great Northern R. Co. (D. C.), 206
main line of the defendant’s main track, Fed. 838, 839.
and thereupon it occupied only the side In United States v. Missouri Pac. R.
track, leaving the main line clear for Co, (D. C.), 206 Fed. 847, the train
the unobstructed movement of trains was not tied up as in United States v.
approaching and passing through La Great Northern R. Co. (D. C.), 206
Clede station. The switches at each Fed. 838, but the duties of the fireman
end of the side track were thereupon were practically the same while the
locked, and thereafter remained locked engine and train were being hauled by
in such pe that ihe en could another train
not leave the side track, and no other 2 ,
train could pass from the main line to gan vee Pac. a Co. v. United
and upon the side track. The brakes BOS Ae -), 213 Fed. 577. 7
were set so that neither the train nor 19. Great Northern R. Co. v. United
the engine could move without first ‘States, 127 C. C. A. 595, 211 Fed. 309.
releasing the brakes. After the train “ 20. See United States v. Missouri
was thus ‘tied up,’ as the process is Pac. R. Co. (D. C.), 206 Fed. 847.
627 COMPUTATION OF PERIODS. § 298

nected with the movement of any train.” One answer to*which has been
that the object of the act was to secure rest for the employees and obviously
its purpose would be defeated if they might be required or permitted by
their employers to occupy the hours intended for rest with railroad service
of another kind. The particular character of the labor required or per-
mitted in the intervals would seem immaterial.?1

Another answer that it was not the intention of Congress that the word
“movement” should be restricted to the actual revolution of the wheels
of a train or locomotive engaged in interstate commerce, for, if that inter-
pretation were the correct one, obviously the very object of the act, the
promotion of the safety of employees and travelers upon railroads, would
be frustrated. The sidings of a railroad are a part of its system and are
indispensable to the proper operation and movement of its trains. Tying
upon a siding for any purpose, whether to await orders, or for the passing
of other trains, or’ for any other purpose connected with the transportation
of freight or passengers, is as much a part of the general movement of a train
as the actual running thereof on the main line and at scheduled periods.
The fact that the delay was for a period of eight consecutive hours does not
operate to make it any the less a delay occurring in the ordinary course of
the general movement of the trains. Such delays are a part of the general
operations whereby traffic over railroads is conducted. Followed to its log-
ical conclusion, the result would be that a freight train and locomotive could
be side-tracked and tied up for an hour at a time, at intervals of an hour,
and its employee required to remain on duty as fireman and as engine watch-
man alternatively for an indefinite period, yet it would not be guilty of a
violation of the act.?? ‘

There is another and a much stronger reason which supports the views
stated. The act prohibits any common carrier from requiring or permitting
any “employee” to be and remain on duty for a longer period than 16 con-

21. San Pedro. etc., R. Co. v. United
States, 130 C. C. A. 28, 213 Fed. 326,
328, Ann. Cas. 1914D, 1238; Northern
Pac. R. Co. v. United States (C. C.
A.), 213 Fed. 577; United States v. Mis-
souri Pac. R. Co. (D. C.), 206 Fed. 847.

“This conclusion makes it unneces-
sary to consider whether a fireman
who, after 16 consecutive hours of
service as such, watches his engine on
a siding and keeps it in a state of pre-
paredness for his successor, is perform-
ing a duty in connection with the
movement of the train. See United
States v. Missouri Pac. R. Co. (D. C.),
206 Fed. 847.” San Pedro, etc., R. Co.
v. United States, 130 C. C. A. 28, 213
Fed. 326, 329, Ann. Cas. 1914D, 1238.

“The intent of the act was and is to
compel rest for each member of the
train’s crew at the termination of the
16-hour period, to the end that his next

succeeding hours of service may be
efficient.” Northern Pac. R. Co. wv.
United States (C. C. A.), 213 Fed. 577,
580.

“That the cab of a moving engine in
which such watchman is required to
ride is not such place as in the absence
of any duty to be performed is con-
ducive to that rest and relaxation re-
quired by the statute is a matter of
common experience and knowledge.
However, when tto this self-evident
fact, as in this case, there is superadded
the duties imposed on one so situate,
as by the parties stipulated, the ques-
tion of relaxation, rest, and sleep re-
quired by the statute, must be almost
if not altogether, impossible.” United
States v. Missouri Pac. R. Co. (D. C.),
206 Fed. 847, 849.

22. Great Northern R. Co. v. United
States, 127 C. C. A. 595, 211 Fed. 309.
§ 298 THE HOUR OF SERVICE ACT. 628
secutive hours. *There is no distinction made in the act as to any particular
duty or duties which an employee may be performing during the whole time,
or any portion of the time, he is on duty. Therefore, when an employee’s
duties were changed from those of fireman to those of engine watchman,
he continued to be no less an employee of the railroad company. In other
words, had he been employed as an engine watchman during the entire
period of 24 consecutive hours, there could be no question but that such
employment would have constituted a violation of the act. The fact that
during the 24-hour period he was employed for 16 hours as fireman and for

8 hours as engine watchman does not lessen the offense.23
IN ss

23. Great Northern R. Co. v. United
States, 127 C. C. A. 595, 211 Fed. 309,
313; United States v. Great Northern
R. Co. (D. C.), 206 Fed. 838, 840.

“Without further discussion, my
conclusion is that, under a proper con-
struction of the act, locomotive fire-
man, engineers, conductors, and other
members of train crews, being ‘em-

ployees’ as that term is defined, can
not be permitted to be on duty for
more than 16 consecutive hours, re-
gardless of the question whether such
duty consists in whole or only in part
of work directly connected with the
movement of trains.” United States
v. Great Northern R. Co. (D. C.), 206
Fed. 838, 841.
CHAPTER XLVII.

CLASSES OF SERVICE, EMPLOYEES AND OFFICES. d

1. Continuous and Aggregate Service, § 299.
2. Classes of Employees, § 300.
3. Classes of Offices, § 301.

§ 299. Continuous and Aggregate Service.—There are two separate
and distinct periods of duty provided for in section 2. The first period is
that referred to in the first clause of the section, and that period is desig-
nated as “sixteen consecutive hours.” The second period is that referred
to in the second clause of the section, and that period is designated as “‘six-
teen hours in the aggregate.” The purpose of the distinction in the two
periods of duty is found in the provision following requiring succeeding
periods of rest. When an employee has been continuously on duty for
16 hours, he must be relieved, and not required or permitted again to go
on duty until he has had at least 10 consecutive hours off duty; and when
he has been on duty 16 hours in the aggregate in any 24-hour period, he
must not be required or permitted to continue or again go on duty without
having at least 8 hours off duty... But in order that an employer might not
by breaking up the periods of service require more hours in any period than
permitted by the act, or practically keep an employee engaged at all times
by such a division, the provision was made requiring a continuous period
of rest.?

If while making a run, a train crew are permitted periods of rest, this
is sufficient to break the continuity of their service. But whether these
breaks in the service are such as the law will recognize depends upon their
character as periods of substantial rest, and are to be determined by a
jury.*

1. Continuous and aggregate service.
—Southern: Pac. Co. v. United States,
137 C. C. A. 584, 222 Fed. 46, 48.

2. Continuous rest period.—United
States v. Atchison, etc., R. Co., 220 U.
S. 37, 55 L. Ed. 361, 31 S. Ct. 362;
Atchison, etc., R. Co. v. United States,
100 C. C. A. 534, 177 Fed. 114, 118.

3. Train crew resting during run.—
Southern Pac. Co. v. United States, 137
C. C. A. 584, 222 Fed. 46, 50.

4. Southern Pac. Co. v. United States,
137 C. C. A. 584, 222 Fed. 46.

“In the present case, with respect to
the first period of release, from 9:15
a. m. to 11:40a.m., the order of the train
dispatcher at Tucson to the agent at
Bowie was: ‘As you have to use the
local engine, there will be no engine
for local crews to work with. Release

the local crews, and call for when can
give them an engine. Advise time re-
leased and recalled. See it is as much
as an hour, so we can get credit for it.’
This order appears to be uncertain as
to time, and made only for the pur-
pose of claiming credit for the time of
the release as a period of time when
the crew was off duty. The train dis-
patcher testified with respect to this
order: ‘In case they [the crew] were
wanted, it would have been necessary
to send out and notify them. I could
not have canceled that release until
I had gotten word to the men. If I
had found we wanted them at 10
o’clock, I had a right to call them; but
I didn’t need them.’ On the other hand,
Sullivan, the conductor, testified with
respect to this period that he did not

629
'§ 299

THE HOUR OF SERVICE ACT.

630

The work even of operators need not be continuous and an operator, in
an office continuously operated, employed for six hours and then, after an
interval, for three, in the same twenty-four, is not employed for a longer

period than nine consecutive hours.

Indeed, the word “consecutive” was

struck out when the bill was under discussion, on the suggestion that other-
wise a man might be worked for a second nine hours after an interval

of half an hour.®

receive any message at Bowie that he
was released, and that the operator told
him he would be off duty until called;
but he testified, further, that he spent
the time sitting around the hotel at
Bowie, and reading; that he did not
perform any duty tor the company aur-
ing that time; that both he and the
trainmen could have gotten into an au-
tomobile and gone into the country uti
11:40 a. m., had they so desired; that
they were free and their time was ab-
solutely their own. With respect to
the period of release from 1:20 p. m.
to 2:20 p. m. there was a definite re-
lease for one hour. Sullivan testified
that during that period his time, and
the time of his trainmen, was abso-
lutely their own; that they were free
to come and go as long as they were
back at 2:20 p. m. With respect to
the period of release of the engineer
and fireman at Bowie from 1:30 p. m.
to 2:30 p. m., that was also a definite
release of one hour. The engineer tes-
tified that during that time neither he
nor his fireman was expected to work;
that they could do as they pleased dur-
ing that hour, and they did do as they
pleased; that he ate and smoked a
cigar, and laid down and took a nap,
and got rested. Was this a substantial
and opportune period of rest, under
all the circumstances? ‘The testimony
clearly presented questions of fact for
the jury, to be determined under ap-
propriate instructions as to the law.
It was not for the court to find the
facts, when a jury had been impaneled
for that purpose. It may be that this
case came within the twilight zone,
referred to by Judge Rudkin in United
States v. Northern Pac. R. Co. (D. C.),
213 Fed. 539; and, if it does, we know
of no better way of disposing of the
issues than by submitting the facts to
the determination of a jury. The mo-
tion of the defendant that the case be
‘ submitted to the jury should therefore
have been granted.” Southern Pac. Co.
v. United States, 137 C. C. A. 584, 222
Fed. 46, 51.
In this conclusion we are supported
by the decision of the Supreme Court
of the United States in the case of

And even though there is no rest period designated in

United States v. Atchison, etc., R. Co.,
220 U. S. 37, 55 L. Ed. 361, 31 S. Ct.
362. In that case the court had under
consideration the provision of the
same act and. section relating to the
hours of service of telegraph opera-
tors. That provision is as follows:

“No operator, train dispatcher, or
other employee who by the use of the
telegraph or telephone dispatches, re-
ports, transmits, receives, or delivers
orders pertaining to or affecting train
movements shall be required or per-
mitted to be or remain on duty for a
longer period than nine hours in any
twenty-four hour period. * * *”

The operator in that case went on
duty at 6:30 a. m. and worked until
12 m. He was then given an inter-
mission until 3 p. m., and then worked
until 6:30 p. m., making in all 9 hours’
actual service, but 12 hours from the
beginning to the end of the service.
it was contended on the part of the
government that this was a service of
12 hours, notwithstanding the inter-
mission of 3 hours, and that the stat-
ute had been violated. The trial court
so held in a trial before a jury. But
the Supreme Court ruled otherwise.
This construction of the statute is ap-
plicable here, and determines that as
a matter of law there may be periods
of duty with’ intermissions between,
providing the aggregate of such pe-
riods do not exceed 16 hours, and pro-
viding, further, that thereafter there
are at least 8 consecutive hours off
duty in any 24-hour period. Southern
Pac. Co. v. United States, 137 C. C. A.
584, 222 Fed. 46, 50.

5. Dividing period of operators.—
United States v. Atchison, etc, R. Co.,
220 U.S. 37, 55 L. Ed. 361, 31 S. Ct.
362, 363.

: “The reason for striking out the word
consecutive’ in the proviso given, as
we have mentioned, when the bill was
under discussion, and the alternative
reference in § 2 to ‘sixteen consecutive
hours’ and ‘sixteen hours in the aggre-
gate, show that the obvious possibil-
ity of two periods of service in the
same twenty-four hours was before the
mind of congress, and that there was
631 CLASSES OF SERVICE, EMPLOYEES AND OFFICES. §§ 299-300

the proviso limiting their hours of service, they are employees within the
meaning of the main part of § 2.6 But should the aggregate of the divided
service in a 24-hour period exceeds 9 hours, in an office continuously oper-
ated, the statute is violated.7

§ 300. Classes of Employees.—By the terms of the act “employees”
are defined as meaning “persons actually engaged in or connected with the
movement of any train.” Perhaps congress might have made the act com-
prehend, but plainly it did not make it comprehend, all persons employed
by a railroad company “engaged in interstate commerce.” It expressly
restricted its application to certain classes of persons, rendering certain
specified services. Thus an employee engaged in watering and feeding
cattle, is not “actually engaged in or connected with the movement of any
train,” so as to be within the act, though at the time of injury he was riding
on an engine to his place of work.”

The act recognizes two distinct classes of employees, those engaged in
operating trains, and those engaged in dispatching them. Before consider-
ing the two classes, it is well to observe that though the hours of service of
operators are embodied in a proviso, they are still employees within the main
part of the section giving to all employees “at least eight consecutive hours
off duty” in each day counting from some period in the next day.1°

To which class an employee belongs is determined in the work in which
he is principally engaged. And conductors or others employed in moving
trains, do not from the fact that they are required at times to use the tele-
phone to receive orders, come within the class of operators and dispatch-
ers; 11 and neither do switch tenders come within this class, where stationed

no oversight in the choice of words.”
United States uv. Atchison, etc., R. Co.,
220 U. S. 37, 55 L. Ed. 361, 31 S. Ct.
362, 364.

6. Atchison, etc. R. Co. v. United
States, 100 C. C. A. 534, 177 Fed. 114,
affirmed in 220 U. S. 37, 55'L. Ed. 361,
31 S. Ct. 362.

7. Same—Aggregate exceeding stat-
utory limit.—United States v. St. Louis,
etc., R. Co. (D. C.), 189 Fed. 954.

8. Classes of employees. — United
States v. Chicago, etc., R. Co. (D. C.),
219 Fed. 632.

9. Schweig v. Chicago, etc., R. Co.,
132 C. C. A. 660, 216 Fed. 750; Schweig
v. Chicago, etc, R. Co. (D. C.), 205
Fed. 96. d

10. Atchison, etc., R. Co. v. United
States, 100 C. C. A. 534, 177 Fed. 114,
affirming United States v. Atchison,
etc., R. Co., 220 U. S. 37, 55 L. Ed. 361,
31 S. Ct. 362.

11, Conductors using telephone are
not operators.—United States v. Chi-
cago, etc, R. Co. (D. C.), 219 Fed.

1011; United States v. Florida, etc., R.
Co., 137 C. C. A. 571, 222 Fed. 33.
The question submitted for consid-
eration involves the construction of
the first proviso of § 2 of the act ap-
proved March 4, 1907, commonly
known as the “Hours of Service Act;”
the second proviso not being pertinent
to the present inquiry. 34 Stat. pt. 1,
p. 1415 (Comp. St. 1913, § 8678). The
precise question may be thus stated:
Is the conductor of an interstate rail-
way train, who is required or per-
mitted during his run to stop at sta-
tions to report, transmit, receive, or
deliver orders pertaining to or affect-
ing his train, embraced within the
terms of the proviso? It seems to us
that it would plainly violate accepted
canons for construing statutes to in-
clude in the proviso a train conductor,
having no fixed place for work except
on a moving train, and who, under the
first clause of § 2, may be required or
permitted to work for the period of 16
hours. His primary and chief duty
§ 300

THE HOUR OF SERVICE ACT.

632

at the yard limits of a large city yard, whose primary duty was to throw
switches but who use the telephone placed in a shed in the yard for the
purpose of communicating with the yard tower to ascertain what was

wanted.!2
Fed. 893, the court said:

In Missouri Pac. R. Co. v. United States, 128 C. C..A. 271, 211

“The difference in the hours of labor fixed by § 2 was based upon the

character of the service rendered by the employee, not upon the use
of the telephone. R. Connell and J. W. King (switchmen), beyond
question, were not operators or dispatchers. * * * ‘The proviso
ought not to be construed so broadly as to annihilate the general lan-
guage of the section. We think that, under a well-established rule of
construction, the words ‘or other employee,’ found in the proviso, must
be construed to mean an employee engaged in the same character of
service as a train dispatcher or operator, who, by the use of the tele-

graph or telephone, performs the work described in the proviso. In

other words, congress intended the 9-hour provision to apply to employ-

ees whose primary duty was to dispatch, report, transmit, receive, or

deliver orders pertaining to or affecting train movements. * * *

Where general words follow an enumeration of particular classes of

persons or things, they will be construed as applicable only to persons

or things of the same general nature or class as thase enumerated.

* * * The words ‘other’ or ‘any other,’ following an enumeration

of particular classes, are therefore to be read as ‘other such like,’ and

to include only others of like kind or character. * * * As the word

‘employee,’ in the proviso of § 2, includes ‘operator’ and ‘train dis-

patcher,’ for the latter are both employees, the conclusion here is irre-

sistible that congress intended, by the use of the words ‘other employee,’

to mean an employee engaged primarily in the same class of service

as would be performed by an operator or train dispatcher. If this be’
the right construction to place upon the proviso, then R. Connell and

J. W. King were not in any sense employees, whose primary duty was

to dispatch, report, transmit, receive, or deliver by the use of the tele-

graph or telephone orders pertaining to or affecting train movements,

within the meaning of the proviso. While, as has been said before,

we must give the law such a construction as will promote the purpose .
of the law, in our zeal to do so, however, we must not attempt to legis-

late ourselves.”

It will be observed that the prohibition of the statute is not limited to
employees performing the duties of operators or train dispatchers only,

requires him to look after his train, and
stopping at a station to transmit or
receive an order, affecting his imme-
diate train, is a mere incidental serv-
ice, which can not operate to classify
him as a telegraph or telephone op-
erator or train dispatcher. The con-
tention of counsel for the government
is that train conductors are included in
the words of the proviso, “or other
employee,” who by the use of the tele-
graph or telephone dispatches reports,
etc. We have endeavored to show that

it was not the intention of the law-
makers to so include them. United
States v. Florida, etc, Ri Co., 137 C.
C. A. 571, 222 Fed. 33, 36.

12. Switch tenders using telephone
to yard tower not operators.—Mis-
souri Pac. R. Co. v. United States, 128

. C. A, 271, 211 Fed. 893; United
States v. Chicago, etc, R. Co. (D. C.),
219 Fed. 1011; Chicago, etc., R. Co. vu.
United States, 141 CG C. A; 135, 226
Fed. 27.
633 CLASSES OF SERVICE, EMPLOYEES AND OFFICES. §§ 300-301

but includes any “other employee who by the use of the telegraph or tele-
phone dispatches, reports, transmits, receives, or delivers orders pertaining
to or affecting train movements.” So a station agent who was required to
take the place of a discharged operator, upon the change of service came
within this prohibition.13 And where a copy operator, qualified to perform
the duties of a regular operator, and when as such he was required to do
so from 12 n. to 7 a. m. after having served as a copy operator from 8 a. m.
to 4 p. m,, this was held a violation-but was excused under § 3 as on account
of the illness of operator in one instance and the death of the operator’s
mother in the other.14

The word “orders” as used in the statute as pertaining to or affecting
train movements is not to be construed to mean what the railroads techni-
cally call “train orders;” that is such orders as emanate from the train
dispatcher’s office, and are reduced to writing and handed to the conductor
and engineer of a train. An order affecting train movements may be given
by a wave of the hand or the flash of a lantern and its disobedience cause
as dire consequences as a failure to obey a written message. ‘Necessarily
an order affecting train movements may be given by any subordinate having
to do with trains and switches,15 and in the case of towermen is generally
done by the use of the semipore. And towermen who use the telephone,
to repeat signals from trainmen, which indicates the routing of a train as
originally made by the train master; to give information that trains have
started on receipt of which other towermen must throw switches, line up
tracks and hold other trains as a matter of duty and without discretion;
to run trains in both directions over a single track and to instruct other
towermen as to holding traffic, are employees using a telephone to dispatch,
report, transmit, receive, and deliver orders appertaining to, or affecting,
train movements. And it is difficult to conceive how anything could be a
more imperative order affecting train movements than for one towerman
to notify another that he had started a train, at the same’ time telling him
to hold all traffic in the opposite direction over the same track.16

§ 301. Classes of Offices.—Under the statute only two kinds of of-
fices are designated, and “the antithesis is between places continuously. oper-
ated night and day and places operated only during the day time.” 17 But
a siding with no station, but only a telephone instrument, attached possibly
to a telegraph pole is not such an office as is contemplated in the statute.18

ing movement of trains.——United States

13. Station agent becoming opera-
v. Houston, etc., R. Co., 125 C. C. A.

tor.—Oregon-Washington R., etc., Co.

v. United States, 139 C. C. A. 142, 223
Fed. 596. .

14. Copy operator working as regu-
lar operator.—United States v. New
York, etc., R. Co. (D. C.), 216 Fed. 702.

15. Meaning of word “orders.”—
United States v. Houston, etc., R. Co.,
125 C. C. A. 481, 205 Fed. 344.

16. Towermen receiving and direct-

481, 205 Fed. 344; Chicago, etc., R. Co.
v. United States, 141 C. C. A. 135, 226
Fed. 27.

17. Day offices and continuously op-
erated offices.—United States v. Atchi-
son, etc. R. Co., 220 U. S. 37, 55 L.
Ed. 361, 31 S. Ct. 362.

18. United States v. Chicago, etc., R.
Co. (D. C.), 219 Fed. 1011, 1013.
§ 301 THE HOUR OF SERVICE ACT. 634

The character and amount of work done by an office is not to determine the
hours of the operator therein, ‘because “we deem it beyond dispute that the
classification of an office is fixed by the length of time it is kept open, and
not in the least by the nature of the duties performed, if only those duties
include the handling of train orders as occasion may require.” Nor is it
“to be assumed that the telegrapher in a train dispatcher’s office, or other
similar office, performs more wearisome labor, or becomes sooner fatigued,
than the operator at an ordinary local station. The latter, it is true, may
average only a small number of train orders in the course of a day, but
nevertheless he may have, and usually does have, other duties which are
varied and often onerous.” 19

In considering the question as to what limit was to be placed on an office
in order to determine its character, it is well said in United States v. Grand
Rapids, etc., R. Co., 140 C. C. A. 177, 224 Fed. 667, 671:

“The dominant characteristic of the ‘daytime’ class is that for a substan-

tial portion of the year the whole service, and for the rest of the year
by far the greater length of the daily service, falls within the hours of
daylight; while the controlling characteristic of the ‘night and day’
class is that the service extends into both night and day throughout
the year. The fluctuations in length of service that may be rendered
during the hours of daylight do not seem to us to be material, whether
the one or the other of these classes be considered.” 2°

19. Not determined by work done.—
United States v. Atlantic, etc., R. Co.,
128 C. C. A. 275, 211 Fed. 897, 900; At-
lantic, etc, R. Co. vw. United States,
128 C. C. A. 281, 211 Fed. 903.

20. “It is conceded that an office
need not literally be kept open every
minute of the 24 hours in order to be
within the 9-hour restriction. But if
it may be closed for one or more sub-
stantial intervals ‘of time and still re-
main in the 9-hour class where shall
the line of division be drawn? In the
Atchison Case, above cited [United
States v. Atchison, etc., R. Co., 220 U.
S. 37, 55 L. Ed. 361, 31 S. Ct. 362], the
office was shut from noon to 3 p. m,
and from midnight to 3 a. m. or 6
hours in all out of the 24, and the su-
preme court strongly intimated, though
the point was not directly involved,
that it should be classed as a 9-hour
office, because the proviso was meant
to deal with all offices, and therefore,
‘we should go farther than otherwise
we might in holding offices not op-
erated only during the daytime as fall-
ing under the other head.’ But where
is the logical place to stop? The
words ‘operated only during daytime’
are quite as much entitled to be made
effective as the words ‘continuously
operated night and day.’ Manifestly,

if we look only at the surface mean-
ing of words, these two definitions are
inconsistent, or at least overlap each
other, since there must be many offices
which could not be fairly described as ‘op-
erated only during the daytime’ and
yet are not, in any absolute sense,
‘continuously operated night and day.’
For example, in a case argued at the
same time with this, the office was
open throughout the 24 hours except
from 1:30 a. m. to 6:30 a.m. To say
that such an office is operated only in
the daytime is to do violence to the
commonest understanding. This is
plainly a case where the natural sig-
nificance of terms must yield to the
necessity for giving to the entire pro-
viso such reasonable meaning as will
promote its beneficial purpose, If
it seems a strained and unwarranted
construction to hold that an office
which is generally closed at 10:15 p.
m., and never later than 11, and kept
closed till 6:30 a. m., is nevertheless
‘continuously operated night and day,’
is it not equally strained and unwar-
ranted to hold that an office which is
kept open from 6:30 a. m. to 10:15 p.
m., or later, is nevertheless ‘operated
only during the daytime’? Since the
office in question must be assigned to
one class or the other, we are of opin -
635 CLASSES OF SERVICE, EMPLOYEES AND OFFICES. § 301

It follows that an office which is closed 3 hours every day and the same
at night; 1 an office opened from 8 a. m. of one day to 6 a. m. of the
next; 2? an office closed four times for a period of one hour each time, dur-
ing a 24-hour period ; 23 an office open at 6:30 a. m. and closed at 10:15 p. m,
never later than 11;24 an office regularly open from 6:30 a. m. to 11
p. m.; 5 an office open, except between the hours of 6 to 7 a. m., 11 a. m.
to 12 m., and 9:30 p. m. to 4:30: a. m.; 26 are considered as being continu-
ously operated and come within the nine hour limitation for employees

working in them.

ion on the whole that it will be more
correctly and usefully placed in the
night and day class than in the day-
time class. If this conclusion gives
greater effect to the words ‘operated
only during the daytime’ than to the
words ‘continuously operated night
and day,’ we think the object of the
law requires that preference be ac-
corded to a construction which recog-
nizes the legislative intent to permit
13 hours of service in offices kept open
only such number of hours in the ag-
gregate as do not materially or sub-
stantially exceed the length of an or-
dinary day, and to prohibit more than
9 hours service in offices kept open
such number of hours in the aggregate
as necessarily include a material or
substantial portion of the night.”
United States vw. Atlantic, etc, R. Co.,
128 C. C. A. 275, 211 Fed. 897, 901; At-
lantic, etc., R. Co. v. United States, 128
Cc. C. A. 281, 211 Fed. 903.

21. United States v. Atchison, etc., R.
Co., 220 U. S. 37, 55 L. Ed. 361, 31 S.
Ct. 362.

22. United States v. Missouri, etc.,
R. Co. (D. C.), 208 Fed. 957.

23. United States v. St. Louis, etc.,
R. Co. (D. C.), 189 Fed. -954.

“The court is clearly of the opinion
that the office was within the contem-
plation of law continuously operated
night and day. If the defendant may
interrupt the continuity of the work-
ing hours by closing the office for an
hour and thus evade the statute, why
may it not do-so by closing the doors
for a period of 30 or even 15 minutes?
But it can do so in neither case. It
is not within the power of a carrier
by resorting to shifts and evasions of
any kind or character to nullify a stat-
ute obviously intended, as was the
present act, to promote the safety of
employees and of the traveling public.”
United States v. St. Louis, etc., R. Co.
(D. C.), 189 Fed. 954, 964.

24, United States v. Atlantic, etc., R.
Co., 128 C. C. A. 275, 211 Fed. 897; At-
lantic, etc., R. Co. v. United States, 128
C. C. A. 281, 211 Fed. 903.

25. United States v. Grand Rapids,
etc., R. Co., 140 C. C. A. 177, 224 Fed.
667.

26. United States v. Grand Rapids,
etc., R. Co., 140 C. C. A. 177, 224 Fed.
667.
CHAPTER XLVIII.

DEFENSES.

. In General, § 302.

. Operators in Case of Emergency, § 303.

Any Employee in Cases of Casualty, Unavoidable Accident, Act of God, § 304.
Delays from Unknown or Unforeseen Causes, § 305.

. Members of Wrecking Crews, § 306.

. Effect of Failure to Relieve When Possible, § 307.

§ 302. In General.—Where the railroad company has so disposed the
hours of work, as justly to require service on the part of operators in excess
of nine hours in the twenty-four hour period, it cannot excuse the violation
on the theory that the rest periods are ample. Two provisos in the act
embrace the only defenses available, the first in § 2 with regard to operators,
train dispatchers, etc., and the other in § 3 which extends to all employees
within the act, and so applies to operators.

The duty imposed being absolute, and as no amount of diligence or want
of knowledge will excuse the carrier,? it is no defense that of his own voli-
tion and contrary to the rules or instructions of his superiors, and without
the actual knowledge of any one in defendant’s employ except himself, an
operator worked longer than the designated hours. The fact of disobedi-
ence to orders being taken out of the case by the act declaring that the com-
pany shall be decreed to have knowledge of all acts of its officers and
agents.4

However regardless of the element of knowledge where the circumstances
are such that an employee must work or close the office, the railroad may
be deemed to have had knowledge of his service over time. In Oregon-
Washington R., etc., Co: v. United States, 139 C. C. A. 142, 223 Fed. 596,
it is said:

“But it is contended that the railroad company is excused from liability
for Longabaugh’s excessive service because, as stated in the stipulation,
he—‘was instructed by his superior officer not to work in excess of nine
hours in any twenty-four. hour period either as agent or operator or

in both capacities.’ But this stipulation is qualified by the admitted fact
that one of the telegraph operators at the station where Longabaugh

1. Defenses.—United States v. Grand
Rapids, etc., R. Co., 140 C. C. A. 177,
224 Fed. 667.

2. See ante, “Nature of Duty Im-
posed,” § 289.

3. Knowledge—Violation of orders
by employee—United States v. Ore-
gon-Washington R., etc., Co. (D. C.), 213
Fed. 688, afarmed Oregon-Washington
R., etc., Co. v. United States, 139 C. C.
A. 142, 223 Fed. 596; United States v.

Oregon-Washington R., etc., Co. (D.
C.), 218 Fed. 925; United States v. Ore-
gon Short Line R. Co. (D. C.), 228
Fed. 561.

4. Oregon-Washington R., etc., Co.
v. United States, 139 C. C. A. 142, 223
Fed. 596, affirming 213 Fed. 688.

5. Oregon-Washington R., etc., Co.
v. United States, 139 C. C. A. 142, 223
Fed. 596, affirming 213 Fed. 688.

636
637 DEFENSES. §§ 302-303

was employed was discharged, leaving only two telegraph operators at
the station for the performance of the duties of moving the trains.
The railroad company undertook to secure some one to supply the
place of the discharged operator and failed, and then proceeded to
arrange the hours of those on duty to cover the service of the dis-
charged employee, and in doing so assigned Longabaugh to three hours
service as station agent and six hours as telegraph operator. In other
words, the railroad company abandoned the effort, for the time being
at least, to provide the full force of employees required at the station,
leaving the station short-handed in the service of both station agent
and telegraph operator, and Longabaugh found himself compelled to
serve 12 hours as station agent, instead of 3 as directed, or close that
office for the greater part of the day. In this situation we do not think
it is a very harsh application of the letter of the statute to hold that the
railroad company had knowledge of all of the acts of all its officers
and agents with respect to the excessive employment of Longabaugh.
It seems to us that upon the admitted facts the railroad company was
charged with actual notice of Longabaugh’s excessive service, notwith-
standing the stipulation.”

If there is a defense in the initial employment of the employees overtime,
in computing the period of excused delay it is proper to consider other
causes necessarily resulting from the primary cause, such as a congestion
of trains and slower movements the result of a hotbox as a primary cause.®

In a case where the defendant sought to defeat an action for damages by a
passenger, based on a failure to carry him to his destination, on the ground
that it was necessary to tie up the train to comply with this act; the court
held that the defendant could not thus shield itself when the delay was
not due to any cause recognized by the act but to the negligence of the
carrier.7

§ 303. Operators in Case of Emergency.—With respect to operators,
in § 2 it is provided that in case of emergency, the employees named in this
proviso may be permitted to be and 1emain on duty for four additional
hours in a twenty-four hour period on not exceeding three days in any
week.®

It does not appear that congress used the word “emergency” in any other
than its ordinary or popular sense. Webster defines the word “emergency”
as: “Any event or occasional combination of circumstances which calls
for immediate action or remedy; pressing necessity; exigency.” The Cen-
tury Dictionary defines the word as follows: “Sudden or unexpected hap-

6. Additional delay resulting from
primary excusable cause. — United
States v. New York Cent., etc., R. Co.,
124 C. C. A. 369, 218 Fed. 611.

7. Statutes as defense to civil action.
—Black v. Charleston, etc. R. Co., 87
S. C. 241, 69 S. E. 230, 231, 31 L. R.
A., N. S., 1184.

8. Operators in case of emergency.
—‘The word ‘week’ in the statute was
intended to mean a period of 7 days,
and not necessarily a calendar week,
and that the statute is not violated if
no employee worked over time more
than 3 days out of 7.” United States
v. Southern Pac. Co., 126 C. C. A. 384,
209 Fed. 562, 567.
§ 303

pening; an unforeseen occurrence or condition.” ®

THE HOUR OF SERVICE ACT.

638

Such emergency, has

been held to exist upon the illness of a dispatcher, combined with the inabil-
ity of the company to obtain a man to take his place while he was ill;
when he could not be relieved sooner on account of a train wreck; 11 upon
the failure of an operator to return in time for his “trick” when attending
court as ‘a witness in answer to a summons; ?2 and upon the discharge of an

employee for insubordination.13

Though in this last case it may be urged that no emergency is shown, be-
cause insubordination by an employee is but a violation of the rules of his
employment, and a railroad company may not create an emergency at will
by discharging an employee for infraction of rules, and thus require re-

' 9. Definition of emergency.—United
States v. Southern Pac. Co., 126 C. C.
A. 384, 209 Fed. 562, 565.

“The word ‘emergency’ was used by
congress in a sense different from
‘casualty,’ ‘unavoidable accident,’ ‘act
of God,’ or other like terms found
therein.” “We find that the English
word ‘emergency’ is derived from the
Latin ‘emergo,’ ‘to arise out of,’ as
‘something which arises suddenly out
of the currents of events.’ Brewer,
416. Its synonym is ‘exigency.’ Crabb.
It does not appear to be synonymous
with ‘accident’ or ‘casualty.’ It mani-
festly is not so with ‘act of God.’
* * * ‘Emergency’ is defined as:
‘Any event, or occasional combination
of circumstances, which calls for im-
mediate action or remedy; pressing
necessity; exigency.’ Webster. ‘A
sudden and unexpected happening; an
unforeseen occurrence or condition.’
Century Dictionary; United States v.
Southern Pac. Co., 126 C. C. A. 384,
209 Fed. 562.” United States uv. At-
lantic, etc., Co. (D. C.), 224 Fed. 160,
166.

10. Operators in case of emergency
—Illness.—United States v. Southern
Pac. Co. 126 C. C. A. 384, 209 Fed.
562; San. Pedro, etc., R. Co. v. United
States, 136 C. C. A. 343, 220 Fed. 737.

“We do not decide that sudden ill-
ness in all cases or standing alone
would constitute an emergency. Each
case must depend upon its own facts.
Sudden illness might continue for such
a number of days as to cease to be an
emergency. Under our ruling in the
Kansas City Southern Case, supra [202
Fed. 828, 121 C. C. A. 136], to the
effect that the statute in question,
being highly remedial, should be lib-
erally construed so that its purposes
may be effected, we think the illness
of Johnson, coupled with the inabil-
ity of the company to secure other
help during the time he was sick, con-

stituted an emergency within the mean-
ing of the law.” United States v.
Southern Pac. Co., 126 C. C. A. 384,
209 Fed. 562, 567.

11. Train wreck—United States v.
Missouri Pac. R. Co., 130 C. C. A. 5,
213 Fed. 169; San Pedro, etc., R. Co.
v. United States, 136 C. C. A. 343, 220
Fed. 737.

An operator at a day office was in
service at a station where the general
limit of his service expired at 10 p.
m. December iith, and the limit of
his four hours excess service in case
of emergency at 2 a. m. December
12th. An unavoidable accident caused
a wreck before 10 p. m. December
11th, and necessitated the continuous
service of the operator until the wreck
could be cleared. A _ relief operator’
could have been procured at the time
of the accident, but the company ex-
pected to clear the wreck by 11 p. m.
December 11th. Every effort to clear
it at once was made, but unforeseen
and unavoidable difficulties delayed the
clearance until 5 a. m., and necessi-
tated the operator’s continued service
until 6:35 a. m. December 12th. As
soon as the delay was known, defend-
ant attempted to procure a relief op-
erator, but .none could be _ found.
Held, these facts fail to deprive the
defendant of its defense to an action
for the penalty for the violation of the
hours of service act that the contin-
ued service of the operator was nec-
essarily rendered in a case of casualty
or unavoidable accident. United
States v. Missouri Pac. R. Co., 130 C.
C. A. 5, 213 Fed. 169.

12, Employee delayed attending
court.—United States v. Atlantic, etc.
Co. (D. C.), 224 Fed. 160.

13. Employee discharged for insub-
ordination.—United States v. Denver,

etc, R. Co., 136 C. C. A. 275, 220 Fed.
293,
639 DEFENSES. §§ 303-304

maining employees to render extra labor. But the railroad company did not
create the emergency, but merely acted in one, when the employee became
of violent temper, abusive, insubordinate, and defiant, and might have had
the power, disposition, and purpose to endanger the safety of those who
traveled subject to his care by acts of omission or commission. The primary
purpose of the act of congress was to provide for the safety of those in-
trusted to the supervision of the employees, from the dangers arising from
their lack of attention and misjudgment, owing to fatigue, but the danger
from such a source is not greater than arises from the disobedience, willful-
ness, or malice of employees.!4

§ 304. Any Employee in Cases of Casualty, Unavoidable Accident,
Act of God.—By § 3 it is provided, “That the provisions of this act shall
not apply in any case of casualty or unavoidable accident or the act of
God.”

Casualty has been defined as an act which proceeds from an unknown
cause or is an unusual effect of a known cause.!5

An unavoidable accident is said to be an inevitable accident which could
not have been foreseen and prevented by the exercise of that degree of
diligence which reasonable men would exercise under like conditions and
without any fault attributable to the party sought to be held responsible.1®

An Act of God.—“While it is not advisable to give an exact definition
of that phrase which will cover every phase, it has been generally defined as
something which occurs exclusively by the violence of nature; at least an
act of nature which implies an entire exclusion of all human agencies.” 17

It would be and is the duty of a railroad corporation to have a reasonable
number of employees in its employ, and to exercise reasonable and due
care to that end, to secure the proper running of its trains, including the
dispatching, of course, but not to meet and cover cases of casualty, unavoid-
able accidents, or the act of God. If, then, a casualty, or an unavoidable
accident, or an act of God, occur and intervene, making it necessary to work
an employee overtime, assuming the railroad company has done its duty in
having in its employ a reasonable number of employees to take care of
ordinary conditions, including mishaps and occurrences reasonably to be
apprehended and liable to occur, and the employee is worked overtime, the
act does not apply.t®

The proviso in this section extends to all employees, operators included,1®

14, United States v. Denver, etc., R.
Co., 136 C. C. A. 275, 220 Fed. 293.

15. Casualty defined.—Chicago, etc.,
R. Co. v. Pullman Southern Car Co.,
139 U. S. 79, 86, 35 L. Ed. 97, 11 S.
Ct. 490. See United States v. Kansas
City, etc., R. Co. (D. C.), 189 Fed. 471,
A477.

16. Unavoidable accident.—United
States v. Kansas City, etc. R. Co. (D.
C.), 189 Fed. 471, 477.

17. Act of God.—United States v.
Kansas City, etc., R. Co. (D. C.), 189
Fed. 471, 476.

18. Primary duty of company to
have sufficient employees. — United
States v. New York, etc., R. Co. (D.
C.), 216 Fed. 702, 707.

19. As extended to all employees.—
“The chief object of the congress in
enacting the proviso in section 3 was
to promote and insure the safety of
§ 304 640

THE HOUR OF SERVICE ACT.

and this distinction is to be noted that while in a case of emergency as in
§ 2, the excessive service is limited to four hours in a twenty-four-hour
period on three days in a week, yet in cases under § 3 they serve without
limitation as to excessive service. And as the act not only failed clearly
to denounce as an offense requiring or permitting an operator or train dis-
patcher to serve beyond the hours limited in § 2 in case of a casualty,
an unavoidable accident, or the act of God, but positively declared that in
such a case the provisions of the act which denounced such excessive serv-
ice, as an offense did not apply, the defendant may not lawfully be punished
for such an act.?°

The operation of those two sections together is well illustrated by an ac-
tual case. In San Pedro, etc., R. Co. v. United States, 136 C. C. A. 343,
220 Fed. 737, 740, it is said:

“Starkey’s illness certainly caused a sudden and unexpected occasion
for action on the part of the railway company—a pressing necessity,
ail emergency, that fairly came within the meaning of the statute. An
emergency existing, the defendant company by the first proviso to
§ 2 of the act was expressly authorized to permit Grandee and Dugan
each to remain on duty for 4 additional hours in the 24-hour period
on not exceeding 3 days in any week. The case shows that each of
them remained on duty for 3 additional hours in a 24-hour period
during the 16th, 17th, and 18th days of January. Then the overtime
permitted them during that week by the proviso of § 2 of the act of
congress * * * ended, and if there were nothing more to the case
we would have no difficulty in affirming the action of the court below
in directing a verdict for the plaintiff upon the first three counts in
case 106, for the evidence is that Grandee and Dugan continued to
work overtime during the 20th and for part of the 21st of January.
But the uncontradicted proof shows that the defendant company on the
17th of January started an operator—one Ham—to Kelso from Las

travelers and employees on railroads
in cases of casualties, unavoidable ac-
cidents, and grave catastrophies af-
fecting the operation of railroads.
The danger to travelers and employees
upon trains running upon the roads
from the absence of the service of
telegraphers and train dispatchers who
control their movements is vastly
greater than from the absence of the
service of any other class of employ-
ees, and that fact is a persausive rea-
son why the congress excepted them,
as well as all other employees, from
the limitation of their hours of serv-
ice fixed by section 2 of the act in
every case of a casualty, an unavoida-
ble accident, or an act of God. That
congress was of the opinion that it
was more important to insure their
continued service than that of any
other class of employees under such
circumstances is demonstrated by the
fact that it permitted their service in

any emergency whatever four hours
longer than the time generally lim-
ited for their service, while it per-
mited no such excess of service to
other employees in any case except in
case of casualty, unavoidable accident,
or act of God.” United States v. Mis-
souri Pac. R. Co., 1830 C. C..A. 5, 213
Fed. 169, 172.

20. Limit of excessive service not
designated.—United States v. Missouri
Pac. R. Co, 130 C. C. A. 5, 213 Fed.
169.

The proviso in § 8, limiting the
cases in which*the statute is inappli-
cable, applies to all employees named
in the act and the fact that the oper-
ators are permitted to serve extra time

‘in cases of an emergency, does not ex-

clude them from being worked still
longer time in cases of casualty, una-
voidable accident, or act of God.
United States v. Missouri Pac. R. Co.,,
130 C. C. A. 5, 213 Fed. 169.
641

DEFENSES. § 304
Vegas, to take the place of Starkey, in ample time to have done so be-
fore the expiration of the 3-day period during which Grandee and
Dugan were each authorized by the statute to work 4 additional hours
in each 24-hour period. But unfortunately the train on which Ham
was proceeding was derailed at a point between Las Vegas and Kelso,
turned over, injuring 14 passengers, damaging the equipment of the
train, and blocking the main line. Because of that disaster Ham was
instructed by the chief dispatcher of the road to establish a telegraph
office at the wreck, in order that he could communicate with head-
quarters and report conditions and progress there, and enable the dis-
patcher to move the trains around the wreck when the line was cleared,
which he did, resulting in the necessary continuance of overtime work
by Grandee and Dugan during the 20th and 21st of January. And the
question is whether that accident or casualty rendered the act in ques-
tion inapplicable. We are of the opinion that it clearly did. See United
States v. Missouri Pac. R. Co., 130°C. C. A. 5, 213 Fed. 169.”

However a casualty has been held to exist upon the sudden illness of a

dispatcher ; 21 and by the death of one in the immediate family.??

And

also, where the derailment of a train was the cause of a train crew being
worked in violation of the statute, it was held that the extra work thrown
on the dispatchers from the large number of trains that the derailment
caused to be tied up and in getting them on their runs, they failed to note
that some of the crews could not reach a terminal within the prescribed
hours, was a casualty or unavoidable accident to which the act would not

apply.?8

21.
casualty.—United States v. New York,
etc., R. Co. (D. C.), 216 Fed. 702. ;

“In this case there was no. negli-

°

Sudden illness of dispatcher as forcement of the law, perhaps to hold
that a casualty, or an unavoidable ac-
cident, or an act of God .not operating

directly on the employee or the em-

gence on the part of the defendant
railroad company. It had three regu-
lar dispatchers able and competent to
take their places, and at least two ex-
tra copy dispatchers able and compe-
tent to take the place of two of the
others, if they were called upon to
act as dispatchers. It seems to me
that it would be too onerous and un-
reasonable to require a railroad com-
pany, under the circumstances shown
here, to keep in its employ and ready
for duty a greater force of dispatchers
and copy dispatchers and reserve copy
dispatchers than this defendant had.
No happenings or experience had
shown defendant’s force to be inade-
quate, and reasonable foresight could
not have foreseen such a_ condition,
which was unusual, not liable to hap-
pen, and which had not existed be-
fore.” United States v. New York,
etc. R. Co. (D. C.), 216 Fed. 702, 707.

22. United States v. New York, etc.,
R. Co. (D. C.), 216 Fed. 702.

“Tt is hard to draw the line, and
somewhat dangerous to the strict en-

Fed Act—41

ployer, brings a case within the pro-
viso of the act; but I think it the
more just and reasonable to hold that
it does, provided the employee by its
operation is incapacitated from the
proper performance of his duty, and
the employer has done its duty in pro-
viding a reasonable number of em-
ployees for the duty. If the casualty,
or accident, or act of God is such that
it operates directly or indirectly on
the employee performing a certain
duty, and relied on by the employer
to perform’ such duty, and thereby in
fact incapacitates such employee from
discharging that duty, and makes it
necessary for the railroad company to
tie up its trains or work a train dix
patcher overtime, there being no neg-
ligence, it seems to me the Hours of
Labor Act does not apply.” United
States v. New York, etc., R. Co. (D.
C.), 216 Fed. 702, 707.

23. Derailment—United States v.
Northern Pac. R. Co., 131 C. C. A. 372,
215 Fed. 64.

In United States v. Missouri Pac. R.
§ 305 THE HOUR OF SERVICE ACT, 642

§ 305. Delays from Unknown and Unforeseen Causes.—It is also
provided in’§ 3, “that the provisions of this act shall not apply * * *
where the delay was the result of a cause not known to the carrier or its
officer or agent in charge of such employee at the time said employee left a
terminal, and which could not have been toreseen.” In order to come within
this latter clause the delay must have been the result of a cause, not only
unforeseen, but which could not have been foreseen and prevented by the
exercise of the highest degree of care.*4

The phrase “by the exercise of due diligence and foresight” not heing
present, it has been argued that by leaving out this phrase congress intended
to limit the liability of the carrier; that it meant to imply that what was
not actually foreknown could not, in contemplation of this law, have been
foreseen. To which in United States v. Kansas City, ete, R. Co., 121 C.
C. A. 136, 202 Fed. 828, 833, it is said:

“We cannot assent to this interpretation. Clearly congress did not in-
tend to relieve the carrier from responsibility in guarding against de-
lays in a matter deemed to be of such importance. By this act it sought
to prevent railroad employees from working consecutively longer than
the period prescribed, as completely and efficiently as could. be ac-
complished by legislation. To bring itself within the exceptions stated,
the carrier must be held to as high a degree of diligence and foresight
as may be consistent with the object aimed at, and the practical opera-
tion of its railroad. Conformably to this view it has been uniformly
held by the courts that, ordinary, delays in starting trains by reason of
the fact that another train is late; from side-tracking to give superior
trains the right of way, if the meeting of such trains could have been
anticipated at the time of leaving the starting point; from getting out
of steam or cleaning fires; from defects in equipment; from switching;

Co., 130 C. C. A. 5, 213 Fed. 169, that
a derailment was not a casualty or un-
avoidable accident was not decided as
the case was on a demurrer to the
complaint and the answer alleged
“that through no fault or negligence
of the defendant company, its agents
or servants, a derailment occurred on
the line of defendant” which had to be
taken as true.

Unprecedented storm as act of God.
—But it has been held that an unpre-
cedented storm, as an act of God, does
not excuse the employment of a fire-
man over time, when he was acting in
the capacity of a watchman after his
train was tied up. Northern Pac. R.
Co. v. United States (C. C. A.), 213
Fed. 577.

24. Delays from unknown and un-
foreseen causes.—United States v.
Kansas City, etc, R. Co. 121 Cc. ¢.
A. 136, 202 Fed. 828; United States v.
Great Northern R. Co. (C. C. A),
220 Fed. 630; Great Northern R. Co.

v. United States, 134 C. C. A. 98, 218
Fed. 302, L. R. A. 1915D, 408; United
States v. Southern Pac. Co., 136 C. C.
A. 351, 220 Fed. 745; San Pedro, etc.,
R. Co. v. United States, 136 C. C. A.
343, 220 Fed: 737. See also, United
States v. Lehigh Valley R. Co., 135
C. C. A. 282, 219 Fed. 532.

The proviso, in § 3, does not relieve
officials in charge of train crews from
exercising proper diligence to avoid
working ‘them overtime, and proper
diligence requires officials to know
whether or not engines and cars are
in proper condition for use when
started upon a run. Great Northern
R. Co. v. United States, 134 C. C. A.
98, 218 Fed. 302, L. R. A. 1915D, 408.

In United States v. Atchison, etc.,
R. Co. (D. C.), 212 Fed. 1000, the de-
lay was due to hauling a car with a
chain, and as it did not contain live
stock or perishable freight was in vio-
lation of the safety appliance act.
643

DEFENSES.

§ 305.

from time taken for meals; and in short from all the usual causes in-
cidental to operation—are not, standing alone, valid excuses within the

meaning of this proviso.

The carrier must go still farther and show

that such delays could not have been foreseen and prevented by exer-
cise of the high degree of diligence demanded.”

Whether the defendant has exercised this care is generally a question for

the jury.?5

This proviso does not excuse a violation due to hot boxes; *6

or for time lost by reason of the locomotive getting out of steam or cleaning
fires, 27 or a delay due to a defective shaker rod, or leaky flues; 8 or a de-

25. Knowledge and foresight—Ques-
tion for jury.—United States v. New
York Cent., etc., R. Co., 134 C. C. A. 369,
218 Fed. 611; United States v. Lehigh
Valley R. Co., 185 C. C. A. 282, 219
Fed. 532; United States v. Kansas
City, etc, R. Co., 121 C. C. A. 136,
202 Fed. 828, 835.

26. Hot boxes.—United States v.
Kansas City, etc., R. Co. (D. C.), 189
Fed. 471; Great Northern R. Co. v.
United States, 134 C. C. A. 98, 218
Fed. 302, L. R. A. 1915D, 408.

“There was some time lost by rea-
son of hot boxes, and this it -is claimed
was an unavoidable accident. It is a
matter of universal knowledge that
science has not yet been able to dis-
cover the means of preventing hot
boxes entirely, but a careful examina-
tion of them before starting a train
and examination at stopping points
will reduce accidents of that nature to
a minimum. But in no event can it
be said that a hot box is an unavoid-
able or unforeseen accident. The of-
ficials of defendant could reasonably
anticipate that hot boxes are likely to
occur on every train, more especially
on freight trains such as these were,
and it was their duty to take that
fact, as well as the frequency with
which other trains would be met, into
consideration in establishing the divi-
sion or terminal yards and determin-
ing the distances for them. If they
failed to do so, and by reason of such
failure the crews on its trains are re-
quired to remain on duty for a longer
period than 16 consecutive hours, it
is guilty of a violation of this act.
United States v. Atchison, etc., R. Co.
(D. C.), 166 Fed. 160.” United States
v7. Kansas City, etc, R. Co. (D. C.),
189 Fed. 471, 479.

“In United States v. Kansas City,
etc. R. Co. (D. C.), 189 Fed. 471, a
verdict had been directed in favor of
defendant on the ground (inter alia)
that delay was caused by a hot box.
Motion for a new trial was granted;
the judge—not the one who tried the

.

cause—stating that, although science
had not yet been able to discover the
means of preventing hot boxes en-
tirely, careful examination before
starting and at stopping points would
reduce such accidents to a minimum.”
United States v. New York Cent., etc.,
R. Co., 134 C. C. A. 369, 218 Fed. 611.

Heavy traffic and adverse weather
conditions.—That there was a heavy
grain movement is not an unavoida-
ble casualty, nor is it a cause that
can not be known or foreseen in the
exercise of proper diligence upon the
part of the officials in charge of the
running of trains before they are sent
out. Neither is an “extraordinary
head wind” or a storm, that does not
cause obstructions to or breaks in the
track or roadbed that may delay
trains to some extent in making their
ordinary running time, a cause not to
be anticipated or foreseen by train of-
ficials; and violations of the law in
working the trainmen overtime can
easily be avoided by relieving them, if
necessary. Great Northern R. Co. w.
United States, 134 C. C. A. 98, 218
Fed. 302, 309, L. R. A. 1915D, 408.

27. Want of steam and cleaning fires.
—United States v. Kansas City, etc.,
R. Co. (D. C.), 189 Fed. 471, 479.

28. Defective shaker road and leaky
flues.—“‘In United States v. Kansas City,
etc., R. Co., 121 C. C. A. 136, 202 Fed.
828, the trouble was caused by leaky
flues and a defective shaker rod; it
did not appear when the leaking be-
gan, and there were two reports (prior
to the accident) that the shaker rod
was defective and should be repaired.
The trial judge held that the facts
brought the case within the proviso
and directed a verdict for the defend-
ant. The court of appeals held that
this was error and that the ‘case
should have been submitted to the
jury, under appropriate instructions to
determine whether defendant had
taken sufficient precaution to see that
its engine was in proper condition
when it started, and whether the de-
§§ 305-307 THE HOUR OF SERVICE ACT. 644

lay in starting caused by reason of the fact that another train was late, ?®
or accidently delayed; ?° or for delays caused by side tracking for other
trains.31 .

However where an engine gave out of water short of a terminal, due to
a run on a temporary road and used water from a creek generally used and
which had prior thereto proved adequate, but'on this occasion the water in
the creek being low and warm would not properly work in the injectors,
but served to take the train within 4 miles of a water tank and there failed,
it would ‘be considered so unexpected as to be unavoidable and a delay of
2% hours excusable.®?

§ 306. Members of Wrecking Crews.—An operator who is required
to serve fourteen hours at a wreck out from the office on the line of the
road, is held to come within the crew of a wreck train, his work being as
important as a member of the crew of an emergency character and uncer-
tain in duration.33

§ 307. Effect of Failure to Relieve When Possible.—Even when
there is an excuse for working employees overtime, the railroad to come
within the law must make an attempt to relieve them, and in fact do so
where possible. Thus in order to bring itself within the proviso in § 3
permitting the employment of operators over time where in an office con-
tinuously operated one of the operators was reported sick at 7:30 p. m.

lays which occurred were the result of
causes which could not have been
foreseen by exercise of the necessary
diligence and_ foresight.’” United
States v. New York Cent., etc., R. Co.,
134 C. C. A. 369, 218 Fed. 611.

29. Waiting for delayed train
United States v. Kansas City, etc, R.
Co. (D. C.), 189 Fed. 471, 478; United
States v. Chicago, etc., R. Co. (D. C.),
219 Fed. 342.

“Delays in the arrival and departure
of trains are of frequent occurrence
and are usual incidents in the ordinary
operation of railroads. The fact that
the defendant received the through
train in question from another rail-
road is of no consequence. Delays in
the departure of trains caused by
trains upon connecting lines being late
are common. Such delays do not con-
stitute an emergency within the mean-
ing of the law. United States v. Kan-
sas City, etc, R. Co, 121 C. C. A.
136, 202 Fed. 828; United States v.
Kansas City, etc, R. Co. (D. C.), 189
Fed. 471, 478.” United States v. Chi-
cago, etc, R. Co. (D. C.), 219 Fed.
342, 343.

30. Delay in departure—Where a
circus train was delayed in departure
due to their employees running a

wagon off a flat car, as the train was

being loaded on the main track which
it was necessary to clear as soon as
possible, this was held not sufficient
to excuse a violation of the law, as
such accidents are to be expected, and
the same having occurred severa)
hours before the operator should have
been relieved and there was on show-
ing that another could not have been
procured. United States v. Chicago,
etc. R. Co. (D. C.), 219 Fed. 342.

31. Side tracking for other trains.—
United States v. Kansas City, etc, R.
Co. (D. C.), 189 Fed. 471.

“Tt is claimed that time lost by rea-
son of side-tracking to give passenger
or superior freight trains the right of
way is an excuse, but it has been ex-
pressly held in United States v. South-
ern Pac. Co. (D. C.), 157 Fed. 459, that
this is no excuse if the meeting of such
trains could have been anticipated at
the time the train was dispatched from
its starting point.” United States v.
Kansas City, etc, R. Co. (D. C.), 189
Fed. 471, 479.

32. Delay from bad water.—United
States v7. Chicago, etc., R. Co. (D. C.),
R12 Fed. 574.

33. Members of wrecking crews.—
United States v. Baltimore, etc., R. Co.
(D. C.), 226 Fed. 220.
645

DEFENSES.

§ 307

and his work continued four additional hours by the operator then on duty,
if the sickness of the operator was an emergency there should have been an
attempt made to obtain another operator and not work an additional one

over time.

The company was held excusable for the first violation but

liable for the second.4 And also where a terminal is reached, it is the duty
of the railroad to relieve the employees who have served their periods; and
in this case the terminal is considered any such where other employees may
be obtained, and not the terminal at the end of the train’s run.?®

34. Effect of failure to relieve when
possible——United States wv. Atlantic,
etc., Co. (D. C.), 224 Fed. 160.

35. Atchison, etc., R. Co. v. United
States (C. C. A.), 220 Fed. 748, revers-
ing on this point 212 Fed. 1000; San
Pedro, etc., R. Co. v. United States, 136
C. C. A. 343, 220 Fed. 737.

“As under the evidence there can be
no doubt that the landslide was the di-
rect and necessary cause of the detour
of the train in question and of its
numerous delays, and that therefore
the defendant company, was entirely
justified in continuing in service its train
crew up to the time it could, with the
exercise of proper diligence have re-
lieved it, it is plain that the action of
the court below in directing a verdict
for the plaintiff on counts 3, 4, and 5

must have been based on the view that
the defendant company had the oppor-
tunity to relieve that crew either at
San Bernardino, or Daggett, or both,
and was by the statute, properly con-
strued, required to avail itself of it, in
which view we think, for the reasons
already stated, the court was right—
being unable to agree with the learned
counsel for the defendant company
that by the adoption of the first pro-
viso to the third section of the act ‘it
was the intention of congress to permit
a crew starting from a terminal to re-
main with the train overtaken by de-
lay, casualty, or unavoidable accident,
until the end of the run.” San Pedro,
etc, R. Co. v. United States, 136 C. C.
A. 343, 220 Fed. 737, 744.
CHAPTER XLIX.

e
ACTIONS UNDER ACT.

. Nature of Proceedings for Penalty, § 308.
. Violation as Negligence, § 309.

Evidence, § 310.

. Pleadings, § 311.

. Verdict and Judgment, § 312.

. Appeal and Error, § 313.

aonrk WO WN FH

§ 308. Nature of Proceedings for Penalty.—An action for a pen-
alty under this act is a civil! and the rules governing civil procedure ap-
ply;? except that the amount of the penalty is to be determined by the
court and not the jury.?

§ 309. Violation as Negligence.—While there can be no doubt that a
violation of the act resulting in injury to an employee, is to be regarded as
negligence per se, still the fact that an employee injured in an acci-
dent was working overtime in violation of the act, does not ipso facto con-
stitute negligence rendering the company liable, but in addition to a viola-
tion of this statute, it is necessary that the plaintiff shall show some act of
negligence on the part of the defendant that, concurring with or attributable
to the violation of the act, contributed to the injury or death.

Although it might well be said, that, where a violation of this act is
shown, it would require very slight evidence of other concurring or con-
nected acts of negligence to authorize a recovery.4

The violation in order to constitute actionable negligence must have been
the proximate cause of the injury.® In St. Louis, etc., R. Co. v. McWhirter,
229 U.S. 265, 57 L. Ed. 1179, 33 S. Ct. 858, 864, the court said:

“We are unable to discover in the text of the statute’ any support for the
conclusion that it was the purpose of congress in adopting it to subject
carriers to the extreme liability of insurers, which the view taken of
the act by the court below imposes. We say this because, although the
act carefully provides punishment for a violation of its provisions, no-
where does it intimate that there was a purpose to subject the carrier
who allowed its employees to work beyond the statutory time to lia-

1. Nature of proceedings for penalty.
—Delano v. United States, 136 CC. A.
243, 220 Fed. 635, 636; United States
uv. Kansas City, etc., R. Co. 121 C. C.
A. 136, 202 Fed. 828; United States v.
Great Northern R. Co. (C. C. A.), 220
Fed. 630.

2. United States v. Kansas City, etc.,
R. Co., 121 C. C. A. 136, 202 Fed. 828,
832.

3. Missouri, etc, R. Co. uv. United
States, 231 U. S. 112, 58 L. Ed. 144,
34 9. Ct. 26.

646

4, Violation as negligence.—Osborne
v. Cincinnati, etc., R. Co., 158 Ky. 176,
164 S. W. 818, 823.

5. St. Louis, etc, R. Co. v. Me-
Whirter, 229 U. S. 265, 57 L. Ed. 1179,
33 S. Ct. 858, reversing judgment 145
Ky. 427, 140 S. W. 672; Atchison, etc.
R. Co. v. Swearingen 239 U. S. 339, 36
S. Ct. 121; Osborne v. Cincinnati, etc.,
R. Co., 158 Ky. 176, 164 S. W. 818, 823;
Bjornsen v. Northern Pac. R. Co., 84
Wash. 220, 146 Pac. 575.
647 ACTIONS UNDER ACT.

§ 309

bility for all accidents happening during such period, without refer-
ence to whether the accident was attributable to the act of working
overtime. And we think that where no such liability is expressed in
the statute, it cannot be supplied by implication. It requires no reason-
ing to demonstrate that the general rule is that, where negligence is
charged, to justify a recovery it must be shown that the alleged neg-
ligence was the proximate cause of the damage.” ®
Thus in an action under the Federal Employers’ Liability Act, the defendant
having pleaded contributory negligence and assumption of risk it is error
to instruct the jury that if they found the plaintiff had been kept at work
overtime under such conditions as would constitute a violation of this stat-
ute, these defenses should be entirely disregarded. As the unjustified re-
tention of the plaintiff at his work for more than the hours provided would
not make the defendant liable whether the retention contributed to the in-
jury or not. The statute that excludes the defenses of contributory neg-
ligence and assumption of risk in such a case is not the hours of labor act
itself, but the subsequent employers’ liability act. The latter has that op-
eration only when the breach of the law contributes to the injury.7
The injured employee also, who relies upon the statute as negligence,
must be one whom the statute was intended to protect, and whether or not
he is such is a question of law for the court.8 Thus, an employee feeding or
watering stock in a yard does not come within the protection of the statute,

as he is not concerned with the operation of trains.®

6. Where deceased was a member
of a train crew which was working
overtime and he was killed by stepping
off the front of the engine to throw a
switch when he fell down and was
killed the court said: “Our conclusion
that there was no reasonable tend-
ency in the evidence connecting the
permitting of the working overtime
with the accident may be briefly thus
summarized: First, because we think
there is nothing in the proof concern-
ing the action of the deceased from
which an inference could be drawn,
that his jumping from the pilot of the
slowly moving engine was in any way
caused by the fact that he had been
working overtime; second, because we
think there was no proof tending to
show negligence on the part of the en-
gineer, and therefore obviously no
room to conclude that the fact that he
had worked overtime negligently con-
tributed to the accident, for the fol-
lowing reasons: (a) because of the un-
contradicted testimony of the engineer
and of the telegraph operator whose
signal was immediately seen and
caused the engineer to stop the train
within a car length; (b) because of the
testimony of the operator as to the po-
sition of the brakeman when he leaped
from the pilot. to run towards the

switch, of his statement as to the line
of vision from where he stood and the
brakeman and engineer, the short in-
terval which elapsed, the place where
the brakeman, in rising after falling,
was struck by the locomotive, as shown
by the distance the engine traveled be-
fore it came to a stop and the place
where the body was found. Indeed, ir-
respective of the testimony of the tele-
graph operator, we think, when the
natural position of the engineer on the
right side of the cab is considered, of
the position in which it is unquestion-
ably shown the deceased was, of the
short distance which the train moved
before it was stopped after the signal
from the operator, it is demonstrated
with mathematical certainty that the
deceased was not within the possible
vision of the engineer as he leaped or
stepped from the pilot for the purpose
of running along the track to the
switch.” St. Louis, etc., R. Co. v. Mc-
Whirter, 229 U. S. 265, 57 L. Ed. 1179,
33 S. Ct. 858, 864.

7. Atchison, etc., R. Co. v. Swearin-
gen, 239 U. S. 339, 36 S. Ct. 121.

8 Employee protected by statute
Schweig v. Chicago, etc, R. Co. (D.
C.), 205 Fed. 96.

9. Schweig v. Chicago, etc., R. Co.
(D. C.), 205 Fed. 96, 97.
§ 310 THE HOUR OF SERVICE ACT. 648

§ 310. Evidence.—The courts take judicial notice of this act; and
also, of the orders of the interstate commerce commission made for the
purpose of enforcing it.1°

An officer of the carrier cannot refuse to make the sworn monthly re-
port, demanded by the interstate commerce commission, detailing instances
if any, in which the law was violated and giving the reason and an explana-
tion thereof, or if there were no violation his affidavit to that effect, on the
ground of personal privilege against self incrimination.11 In Baltimore,
etc., R. Co. v. Interstate Commerce Comm., 221 U. S. 612, 55 L. Ed. 878, 31
S. Ct. 621, 627, the court said:

“The transactions to which the required reports relate are corporate
transactions, subject to the regulating power of congress. And, with
regard to the keeping of suitable records of corporate administration,
and the making of reports of corporate action, where these are ordered
by the commission under the authority of congress, the officers of the
corporation, by virtue of the assumption of their duties as such, are
bound by the corporate obligation, and cannot claim a personal privilege
in hostility to the requirement.”

The carrier cannot claim such a privilege on its own account, !2 nor claim
such privilege for an officer.18 ‘

Admissibility.—In order for evidence to be admissible to justify the
working of employees overtime under the provisos, they must be pleaded,!4
and evidence showing facts in justification of such overtime work is not
admissible under a general denial.15 And even though the court and coun-
sel, by common consent, tried a case as though an alleged defense was em-
braced within the issues; on appeal, it will be treated as though set out in
the answer, so the court can review the evidence as a defense.16

While evidence is not admissible to show violations at other times, to
sustain a conviction of the particular violation charged, but where the de-
fendant seeks to excuse itself upon the ground of an unavoidable accident

10. Orders of Interstate Commerce
Commission—Judicial Notice——United
States «. Baltimore, etc. R. Co. (D.
C.), 226 Fed. 220.

11. Same—Refusal to obey as self-
incriminating.—Baltimore, etc. R. Co.
vw. Interstate Commerce Comm., 221 U.
S. 612, 55 L. Ed. 878, 31 S. Ct. 621.

12. Baltimore, etc., R. Co. v. Inter-
state Commerce Comm., 221 U. S. 612,
55 L. Ed. 878, 31 S. Ct. 621, 626.

13. Baltimore, etc., R. Co. v. Inter-
state Commerce Comm., 221 U. S. 612,
55 L. Ed. 878, 31 S. Ct. 621, 627.

14. Admissibility under issues of
Rleading.—See post, “Pleading,” § 311.

15. Great Northern R. Co. uv. United
States, 134 C. C. A. 98, 218 Fed. 302,
L. R. A. 1915D, 408.

“The court was undoubtedly right in

excluding the evidence offered by the
defendant in support of any supposed
defense it might have under the pro-
viso in § 3 of the hours of service act,
as the only defense pleaded when this
offer was made was that neither of the
fireman was employed more than 16
consecutive hours upon his engine. If
the defendant relied upon any defense
under the proviso, it was its duty to
allege the facts constituting such de-
fense before the trial began, so that
the government might know what it
would be required to meet.’ Great
Northern R. Co. v. United States, 134
C. C. A. 98, 218 Fed. 302, 308, L. R.
A. 1915D, 408.

16. United States v. Kansas City, etc.,
R. Co., 121 C. C. A. 136, 202 Fed. 828,
ce See post, “Appeal and Error,”

313.
649 ACTIONS UNDER ACT. §§ 310-311

(breaking of air hose and pulling out of draw bars), the government is
entitled to show that during several months preceding the. accidents in
question, instances of like trouble were of daily occurrence. Though the
defendant would be entitled to an instruction limiting its effect, it was
clearly admissible ‘‘as tending to show a negligent habit of the officers and
agents of the railroad company.” 17

Presumptions and Burden of Proof.—The burden is upon the gov-
ernment to establish that the defendant has required or permitted its em-
ployees to remain on duty longer than specified in the act,1® but if this is
conceded it makes a prima facie case.'"? This casts upon the defendant the
burden of proving by the great weight of testimony, facts which bring it
within the provisos of the act.2° But with respect to the proviso in § 3,
relative to delays caused by unknown or unforeseen causes, it is held that the
defendant is not excused by showing that it was without actual knowledge,
but that it must show that it was a delay which, in the exercise of the highest
degree of care, was not to be anticipated.?1

§ 311. Pleadings.—The government need not specially plead an order
of the Interstate Commerce Commission for the purpose of relying thereon
as a violation of the Act.??_ The action, though for a penalty, is civil in its na-
ture, and the pleader is not required to state his cause of action with the
exactness and particularity that would be necessary in a criminal indict-
ment; 23 but a complaint charging that an operator was worked overtime,
should state whether he was detained after the 9-hour or 13-hour period,
and if it fails to do so, it does not state a cause of action.24_ So too, should
the defendant be charged with the working of an operator over time, this
is not sufficient to base a penalty for its negligent failure to secure a relief
operator.?>

provided by that act.” United States

17. Occurrences at other times.—
v. Kansas City, etc, R. Co. (D. C.),

United States v. Great Northern R.

Co. (C. C. A.), 220 Fed. 630.

18. Presumptions and burden of
proof.—United States v. Kansas City,
etc., R. Co., 121 C. C. A. 136, 202 Fed.
828.

19. United States v. Kansas City, etc.,
R. Co., 121 C. C. A. 136, 202 Fed. 828,
/832; United States «. Atchison, etc.,
R. Co. (D. C.), 212 Fed. 1000.

20. Great Northern R. Co. v. United
States, 134 C. C. A. 98, 218 Fed. 302,
L. R. A. 1915D, 408; United States
v. Houston, etc, R. Co., 125 C. C. A.
481, 205 Fed. 344; United States v.
Kansas City, etc. R. Co. 121 C. C. A.
136, 202 Fed. 828; United States wv.
Great Northern R. Co. (C. C. A.), 220
Fed. 630.

“The defendant, to sustain its plea,
must bring itself strictly within the let-
ter as well as within the reason of the
proviso in order to escape the penalty

189 Fed. 471, 476.

21. United States v. Kansas City, etc.,
R. Co., 121 C. C. A. 136, 202 Fed. 828;
United States v. Oregon Short Line R.
Co. (D. C.), 228 Fed. 561.

22. Pleading—Orders of Interstate
Commerce Commission.—United States
v. Baltimore, etc., R. Co. (D. C.), 226
Fed. 220.

23. Certainty.— United States v.
Houston, etc., R. Co., 125 C. C. A. 481,
205 Fed. 344.

24. Same—Designating hours of serv-
ice.—United States v. Chicago, etc., R.
Co. (D. C.), 219 Fed. 1011.

25. Sufficiency of allegation to em-
brace negligence in emergency.—
United States v. Missouri Pac. R. Co.,
130 C. C. A. 5, 213 Fed. 169. See also,
United States v. Atlantic, etc., Co. (D.
C.), 224 Fed. 160, 165.
§ 311 THE HOUR OF SERVICE ACT. 650

If a statute puts an exception or limitation into the definition of duty,
then a plaintiff, counting on a breach of the duty, must plead and prove the
negative of the exception or limitation. As the provisos in the hours of
service statute are not an exception or limitation in the definition of duty,
but only subsequently affords certain exemptions from liability for viola-
tions of the defined duty, a complaint need not negative all possible legal
excuses for the violations that were duly set forth.*6

Plea or Answer.—The defendant seeking to excuse itself under the
provisos of the acts must plead the same.27 In the nature of things, in most
cases arising under the act, facts bringing the case within the exception
would be only within the knowledge of the railroad,-and the government
should not be required to allege that of which it knows nothing simply to
conform to a mere technicality of pleading. If facts existed that would
bring the case within the exception, they constituted a defense that the rail-
road should have pleaded and proved.?8

Amendment.—lf the court requires the plaintiff to amend its complaint,
by subsequently doing so the plaintiff waived its exception to the ruling that
required the amendment.2® Without leave of court an amendment to the
answer cannot be made after trial by stipulation providing that it shall op-
erate as it filed before, so as to bind the court.?°

Demurrers.—A receiver of a railroad is a common carrier and a de-
murrer to an action for violation of the act, if based on this fact, is wrong-
fully sustained.21 A demurrer to a plea or answer admits all the allega-
tions as true, so an answer which alleges that a delay was caused by an un-
avoidable accident which could not have been foreseen, is sufficient as against
a demurrer. And also if the plaintiff demurs to an answer which alleges
“that through no fault or negligence of the defendant company, its agents,
or servants, a derailmént occurred on the line of defendant,” it is pre-
cluded from contending that such derailment was not a casualty or un-
avoidable accident because the defendant failed to use due diligence to avoid
it, for however great the diligence required, defendant exercised it, for so
only could he have been without fault or negligence.?8

26. Negativing provisos. — United 29. Amendment—Waiver of excep-

States v. Great Northern R. Co. (C.
C. A.), 220 Fed. 630, 632; United States
v. Houston, etc., R. Co., 125 C. C. A.
481, 205 Fed. 344.

27. Plea or answer.—United States v.
Kansas City, etc., R. Co., 121 C. C. A.
136, 202 Fed. 828, 832; Great Northern
R. Co. v. United States, 134 C. C. A.
98, 218 Fed. 302, L. R. A. ‘1915D, 408;
St. Louis, etc, R. Co. v. McWhirter,
145 Ky. 427, 140 S. W. 672, 678, re-
versed in 33 S. Ct. 858.

28. United States v. Houston, etc., R.
Co., 125 C. C. A. 481, 205 Fed. 344, 348.

tion requiring United States v. Great
Northern R. Co., (C. C. A.), 220 Fed.
630.

30. Same—Making without leave of
court.—Great Northern R. Co. v. United
States, 134 C. C. A. 98, 218 Fed. 302,
L. R. A. 1915D, 408.

31. Demurrers.—United States v.
Rarhsey, 116 C. C. A. 568, 197 Fed. 144,
42 L. R. A, N. S., 1081. :

82. Demurrers, effect of.— United
States v. Southern Pac. Co., 136 C. C.
A. 351, 220 Fed. 745.

33. United States v. Missouri Pac. R.
Co., 130 C. C. A. 5, 213 Fed. 169.
651 ACTIONS UNDER ACT. §§ 312-313

§ 312. Verdict and Judgment.—The amount of the penalty, it being
a deterrent, not a compensation, and measured not by the harm to the em-
ployees, but by the fault of the carrier, and being punitive, rightly is de-
termined by the court.34

The retention of a number of employees overtime, constitutes a violation
as to each employee though due to a single cause. So where employees
were kept on duty over sixteen hours. due to the delay of one train, there is a
violation with respect to each such employee.8® In Missouri, etc., R. Co. v.
. United States, 231 U.S. 112, 58 L. Ed. 144, 34 S. Ct. 26, 27, the court said:

“The statute makes the carrier who permits ‘any employee’ to remain on
duty in violation of its terms, liable to a penalty ‘for each and every
violation.” The implication of these words cannot be made much
plainer by argument. But it may be observed, as was said by the gov-
ernment, that as towards the public, every overworked man presents a
distinct danger, and as towards the employees, each case, of course, is
distinct.”

A judgment may be rendered against a receiver and though he is not per-
sonally liable, he is liable in his official capacity, and the payment of any
judgment obtained would be subject to the order of the court appointing
the receiver in the exercise of its equitable powers.*°

§ 313. Appeal and Error.—lf a case is submitted to the jury under
a charge which construed the section counted on as a violation, stated the
issues, reviewed the testimony and the contention of both sides, and carefully
instructed the jury as to what questions they were to decide, to which the
government took no exception to the charge, but submitted a few requests
to charge, which were all complied with, the verdict is conclusive as to the
facts in controversy, and no error is pointed out for review.37

The rule that where both parties ask a directed verdict, the proceeding is
equivalent to a request for a finding of facts by the court, and, if the court
directs the jury to return a verdict for one of the parties both are concluded as
to the finding of fact, is not applicable in a case where in addition to a mo-
tion for a directed verdict, the defendant further requests that, in case
its motion is denied, the case be submitted to the jury. In such a case the
appellate court will review the evidence, to determine if it was so undis-
puted, or was of such a conclusive character as would have made it the

34, Amount to be determined by
judge.— Missouri, etc., R. Co. v. United
States, 231 U. S. 112, 58 L. Ed. 144, 34
S. Ct. 26. See also, United States v.
Atlantic, etc., R. Co., 98 C. C. A. 110,
178 Fed. 764, 771; Atchison, etc, R.
Co. v. United States, 101 C. C. A. 140,
478 Fed. 12, 15, 21 Am. & Eng. Ann.
Cas. 819.

35. Number of violations from of-
fense.— Missouri, etc., R. Co. v. United

States, 231 U. S. 112, 58 L. Ed. 144, 34
S. Ct. 26.

36. Judgment against receiver. —
United States v. Ramsey, 116 C. C. A.
568, 197 Fed. 144, 148, 42 L. R. A, N.
S., 1031.

87. Objection in court below.— United
States v. New York Cent., etc., R. Co.,
134 C. C. A. 369, 218 Fed. 611.
THE HOUR OF SERVICE ACT. 652

duty of the court to set aside the verdict, if the case had been given to the
jury and a verdict returned in favor of the defendant.38

A request to direct a verdict for the defendant is not sufficient to present
for review on appeal, the question of whether or not a delay was the result
of a defective injector, not known to the carrier and not foreseen, when the
trouble might have been due to the scarcity and bad quality of the water
which was well known.3?

On appeal the court will only consider questions decided below, and evi-
dence held inadmissible under the pleadings, cannot by a stipulation per-
mitting an amendment, made without leave of court, be considered as made
before trial, so as to permit the review of such evidence on appeal as con-
stituting a defense.4°

88. Review of evidence when both
parties ask directed verdict.—Southern
Pac. Co. v. United States, 137 C. C. A.
584, 222 Fed. 46, 48.

89. Request for directed verdict as
raising objection.—Missouri, etc, R.
Co. v. United States, 231 U. S. 112, 58
L. Ed. 144, 34 S. Ct. 26.

40. Review only of questions decided
below.—Great Northern R. Co. w.

United States, 134 C. C. A. 98, 218 Fed.
302, L. R. A. 1915D, 408.

In United States v. Kansas City, etc.,
R. Co, 121 C. C. A. 136, 202 Fed. 828,
it was‘held that as court and counsel
considered the evidence as embraced in
the issue, the court on appeal con-
sidered the defense as if set out in the
answer.
Appendix A

THE FEDERAL EMPLOYERS’ LIABILITY ACTS.

TEx? or Acts.
Act June 1, 1906, 34 Stat. at L. 232, chap. 3073.

§ 1. [Railroad Liable—To Whom—To What Extent—For Whose
Benefit—For What Negligence. |—That every common carrier engaged
in trade or commerce 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 employees, 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 employees,
or by reason of any defect or insufficiency due to its negligence in its cars,
engines, appliances, machinery, track, roadbed, ways, or works.

§ 2. [Contributory Negligence. ]|—That in all actions hereafter brought
against any common carriers to recover damages for personal injuries to
an employee, or where such injuries have resulted in his death, the fact that
the employee 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 diminished by
the jury in proportion to the amount of negligence attributable to such em-
ployee. All questions of negligence and contributory negligence shall be for
the jury.

§ 3. [Contracts as Defense—Set-Off of Insurance or Benefits
Paid.]—That no contract of employment, insurance, relief benefit, or in-
demnity for injury or death entered into by or on behalf of any employee,
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
employee: Provided, however, That upon the trial of such action against
any common carrier the defendant may set off therein any sum it has con-
tributed toward any such insurance, relief benefit, or indemnity that may
have been paid to the injured empioyee, or, in case of his death, to his per-
sonal representative.

653
654 FEDERAL EMPLOYERS’ LIABILITY ACTS.

§ 4. [Limitations.]—That no action shall be maintained under this Act,
unless commenced within one year from the time the cause of action accrued.

§ 5. [Safety Appliance Law Unaffected. ]—That nothing in this Act
shall be held to limit the duty of common carriers by railroads or impair the
rights of their employees under the Safety Appliance Act of March, sec-
ond, eighteen hundred and ninety-three, as amended April first, eighteen
hundred and ninety-six, and March second, nineteen hunderd and three.

Act of April 22, 1908, 35 Stat. at L. 65, ch, 149.

§ 1. [Railroads Liable—To Whom—To What Extent—For Whose
Benefit—For What Negligence.]—That every common carrier by rail-
road while engaging in commerce between any of the several states or ter-
ritories, or between any of the states and territories, or between the Dis-
trict 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 in-
jury while he is employed by such carrier in such commerce, or, 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 resulting in whole or in part from the negligence of any of the officers,
agents, or employees of such carrier, or by reason of any defect or insuffi-
ciency, due to its negligence, in its cars, engines, appliances, machinery, track,
roadbed, works, boats, wharves or other equipment.

§ 2. [Liability in Territories, District of Columbia, Canal Zone,
and Other Possessions. |—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 jurisdic-
tion, or, in case of the death of such employee, to his or her personal repre-
sentative 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 in-
jury or death resulting in whole or in part from the negligence of any of the
officers, agents, or employees 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.

§ 3, [Contributory Negligence, |—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
employee, or where, such injuries have resulted in his death, the fact that
TEXT OF ACTS. 655

the employee 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 employee: Provided, That no
such employee 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 employees contrib-
uted to the injury or death of such employee.

§ 4. [Assumption of Risk.]—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 employees, such
employee 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 employees contributed to the injury or death of such em-
ployee.

§ 5. [Contract or Device Exempting Liability—Set-Off of Sum,
Contributed or Paid.]|—That any contract, rule, regulation, or device what-
soever, 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 car-
rier 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 insur-
ance, relief benefit, or indemnity that may have been paid to the injured em-
ployee or the person entitled thereto on account, of the injury or death for
which said action was brought.

§ 6. [Limitation.]—That no action shall be maintained under this Act
unless commenced within two years from the day the cause of action accrued.
(An addition was made to this section by Act April 5, 1910, 36 Stat. at L.
291, ch. 143.)

§ 7. [Liability of Receivers.]—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.

§ 8. [Former Act Not Repealed. ]—That nothing in this Act shall be
held to limit the duty or liability of common carriers or to impair the rights
of their employees 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 com-
merce between the states and between the states and foreign nations to their
employees,” approved June eleventh, nineteen hundred and six.
656 FEDERAL EMPLOYERS’ LIABILITY ACTS.

AMENDMENT OF 1910.
Act of April 5, 1910, 36 Stat. at L. 291, ch. 143.

§ 1. [Limitation, Jurisdiction, Removal.]—That an act entitled “An
act relating to the liability of common carriers by railroad to their employees
in certain cases,” approved April twenty-second, nineteen hundred and eight,
be amended in section six so that said section shall read:.

§ 6. That 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.

§ 2. [Survival.]—That said Act be further amended by adding the fol-
lowing section as section nine of said act:

§ 9. That any right of action given by this Act to-a person suffering in-
jury shall survive 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 de-
pendent upon such employee, but in such cases there shall be only one re-
covery for the same injury.
Appendix B

THE SAFETY APPLIANCE ACTS.
TEXT oF ACTS.

Act of March 2, 1893, 27 Stat. at L. 531, ch. 196.

An act to promote the safety of employees 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.

§ 1. [Air Brakes on Engine and Cars.]|—That 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 railroad to use
on its line any locomotive engine in moving interstate traffic not equipped
with a power driving-wheel brake and appliances fer 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 with-
out requiring brakemen to use the common hand brake for that purpose.

§ 2, [Automatic Couplers.|—That on and after the first day of Jan-
uary, 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 auto-
matically by impact, and which can be uncoupled without the necessity of
men going between the ends of the cars.

§ 3. [Refusal of Cars Unless Air Equipment Interchangeable. ]—
That 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 lawfully
refuse to receive from connecting lines of road or 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.

‘§ 4. [Grab Irons and Hand-holds—Time of Taking Effect. ]—That
from and after the first day of July, eighteen hundred and ninety-five, un-
til otherwise ordered by the Interstate Commerce Commission, it shall be
unlawful for any railroad company to use any car in interstate commerce

Fed Act—42 657
658 THE SAFETY APPLIANCE ACTS.

that is not provided with secure grab irons or hand-holds in the ends and
sides of each car for greater security to men in coupling and uncoupling cars.

§ 5. [Drawbars, Standard. Height and Variations—Authority to
Fix and Time of Taking Effect.]|—That 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
drawbars for freight cars, measured perpendicular from the level of the tops
of the rails to the centers of the drawbars, for each of the several gauges
of railroads in use in the United States, and shall fix a maximum variation
_ from such standard height to be allowed between the drawbars of empty
and loaded cars. Upon their determination being certified to the Interstate
Commerce 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 Commis-
sion to do so, before July first, eighteen hundred and ninety-four, and im-
mediately 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.

§ 6. [Liability for, and Amount of, Penalty—Jurisdiction—Duty to
Sue—Exceptions, Four-Wheel and Logging Cars.}—That 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 one hundred dol-
lars 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 Inter-
state Commerce Commission to lodge with the proper district attorneys in-
formation of any such violations as may come to its knowledge: Provided,
That nothing i in this Act contained shall apply to trains composed of four-
wheel 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 locomotives used in hauling such trains when such
cars or locomotives are exclusively used for the transportation of logs. [As
amended by Act April 1, 1896, Ch. 87, 29 Stat. at L. 85.]

[The amendment only changed the original section by exempting eight-
wheel logging cars and engines as well as four-wheel cars.]

§ 7. [Extension of Time for Compliance. |—That the Interstate Com-
TEXT OF ACTS. ° 659

merce 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.

§ 8. [Assumption of Risk.]—That any employee of any such common
carrier who may be injured by any locomotive, car, or train in use contrary
to the provision of this act shall not be deemed thereby to have assumed
the risk thereby occasioned, although 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.
Act March 2, 1903, 32 Stat. at L. 943, ch. 976.

An act to amend an act entitled, “An act to promote the safety of em-
ployees and travelers upon railroads by compelling common carriers engaged
in interstate commerce to equip their cars with automatic couplers and con-
tinuous brakes and their locomotives 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.

§ 1. [Extended to Territories and District of Columbia—Requir-
ing Couplers to Be Interchangeable—Applicable to All Interstate
Roads and Vehicles Used—Additional Exception of Street Cars.]—
The provisions and requirements of the act entitled “An act to promote the
safety of employees and travelers upon railroad by compelling common car~-
riers engaged in interstate commerce to equip their cars with automatic coup-
lers and continuous brakes and their locomotives 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, ten-
ders, cars, and similar vehicles used in connection therewith, excepting those
trains, cars, and locomotives exempted by the provisions of § 6 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.

§ 2. [Fixing Percentage of Power Brakes—Granting Power to
Increase Percentage. ]—\henever, as provided in said act, any train is
660 THE SAFETY APPLIANCE ACTS.

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 drawing 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 fully 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 or train brakes which must have
their brakes used and operated as aforesaid; and failure to comply with any
such requirements of the said Interstate Commerce Commission shall be sub-
ject to the like penalty as failure to comply with any requirement of this
section.

§ 3. [Time of Taking Effect—Operation with Prior Act Declared. |
—The provisions of this act shall not take effect until September first, nine-
teen 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 lia~
bilities 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.

Act April 14, 1910, 36 Stat. at L. 298, ch. 160.

An Act to supplement “An act to promote the safety of employees 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 pur-
poses,” and other safety appliance acts, and for other purposes.

§ 1. [Carriers and Vehicles Affected.]—Be it enacted by the Sen-
ate and House of Representatives of the United States of America in Con-
gress assembled, That the provisions of this act shall apply to every com-
mon carrier and every vehicle subject to the 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, commonly known
as the “Safety Appliance Acts.”

§ 2. [Steps, Handbrakes, Ladders, Running Boards, Handholds,
Grab Irons—Exception, Cars Used Together. ]—That on and after July
first, nineteen hundred and eleven, it shall be unlawful for any common car-
TEXT OF ACTS. 661

rier subject to the provisions of this act to haul, or permit to be hauled or
used on its line any car subject to the provisions 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 handbrakes; all cars requiring secure lad-
ders 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.

§ 3. [Standards of Equipment, How Fixed, Notice to Carriers—
Power of Interstate Commerce Commission—Time When Effective. ]
—That within six months from the passage of this act the Interstate Com-
merce Commission, after hearing, shall designate the number, dimensions,
location, and manner of application of the appliances provided for by section
two of this act and section four of the act of March second, eighteen hun-
dred and ninety-three, and shall give notice of such designation to all com-
mon 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 re-
main 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 Com-
merce 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, 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 Commis-
sion 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
the passage of this act. Said commission is hereby given authority, after
hearing, to modify or change, and to prescribe the standard height of draw-
bars and to fix the time within which such modification or change shall be-
come effective and obligatory, and prior to the time so fixed it shall be un-
lawful 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 in-
terstate or foreign traffic which does not comply with the standard so pre-
scribed by the commission.

§ 4. [Liability for, and Amount of, Penalty—On Hauling to Re-
pair. ]—That any common carrier subject to this act using, hauling, or per-
mitting to be used or hauled on its line, any car subject to the requirements
662 THE SAFETY APPLIANCE ACTS.

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: Pro-
vided, That where any car shall have been properly equipped, as provided
in this act and the other acts mentioned herein, and such equipment shall
have become defective 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 cannot 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 section shall be construed to
relieve such carrier from liability in any remedial action for the death or
injury of any railroad employee caused to such employee 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 mantained in accordance with
the requirements of this act and the other acts herein referred to; and noth-
ing 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 con-
tain live stock or “perishable” freight.

§ 5. [Hauling to Repair—Liability in Other Cases Than Pen-
alty.|—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 con-
strued to relieve any common carrier, the Interstate 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, nineteen hundred and three; and, ex-
cept 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.

§ 6. [Enforcement by Interstate Commerce Commission. ]—That
it shall 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.

Approved, April 14, 1910.
ORDERS OF INTERSTATE COMMERCE COMMISSION. 663

Orders of Interstate Commerce Commission.

Fixing Percentage of Air Brakes.

At a general Session of the Interstate Commerce Commission, held at its
office in Washington, D. C., on the 6th day of June, A. D., 1910.

Present: :
Martin A. Knapp, Francis M. CocKRELL,
Jupson C, CLEMENTS, FRANKLIN K. LANE,
Cares A. Prouty, Epcar FE. CLark,

James S. HARLAN,

In the Matter of Requiring an Increase in the Minimum Percentage of
Brakes.

The Commission having under consideration the question of requiring an
increase in the minimum percentage of power brakes to be used and op-
erated on trains and railroads engaged in interstate commerce as provided
by section 2 of the Act of March 2, 1903, and it appearing to the commis-
sion 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
railroads in the United States, and at which time all interested parties were
given an opportunity to be heard and submit their views, that to more fully
secure the objects of the Act to promote the safety of employees and trav-
elers 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 fur-
ther increased.

It Is Ordered: That on and after September 1, 1910, on all railroads
used in interstate commerce, however, as required by the Safety Appliance
Act as amended March 2, 1903, any train is operated with power or train
brakes, not less than 85% of the cars of such train shall have their brakes
used and operated by the engineer of the locomotive drawing such train, and
all power-brake cars in every such train which are associated together with
the 85% shall have their brakes so used and operated.

Epw. A. MoseEtey,
Secretary.

Fixing Standard Height of Drawbars.

Order of the Interstate Commerce Commission, Oct. 10, 1910.

Whereas, by the third section of an act of Congress appproved April
14, 1910, entitled “An act to supplement ‘An act to promote the safety of
employees and travelers upon railroads by compelling common carriers en-
gaged in interstate commerce to equip their cars with automatic couplers and
664 THE SAFETY APPLIANCE ACTS.

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 the Interstate Commerce Commis-
sion 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 Com-
mission at its office in Washington, 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 § 6 of the
Safety Appliance Act of March 2, 1893, as the same was amended April 1,
1896) the standard height of drawbars heretofore designated in compliance
with law is hereby modified and changed in the manner hereinafter pre-
scribed—to-wit: The maximum height of drawbars for freight cars meas-
ured perpendicularly from 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 3414 inches, and the minimum height of drawbars for freight
cars on such standard-gauge railroads measured in the same manner. shall
be 31% inches, and on narrow-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 26 inches,
and the minimum height of drawbars for freight cars on such narraw-
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 1714 inches, and the minimum
height of drawbars for freight cars on such 2-foot-gauge railroads measured
in the same manner shall be 1414 inches.

And it is further ordered, That such modification or change shall become
effective and obligatory December 31, 1910.

Designating Appliances Under Act of April ro, roro.
At a General Session of the Interstate Commerce Commission, held at its
office in Washington, D. C., on the 13th day of March, A. D. 1911.

Present:

Jupson C. CLEMENTS, Epcar EF. Clark,
Cuaries A. Proury, JAmMes S. Harian,
FRANKLIN K. LANeE, Cuaryes C. McCuorp,

BALTHASAR H. MEyEr.
ORDERS OF INTERSTATE COMMERCE COMMISSION. 665

In the Matter of Designating the Number, Dimensions, Location, and Man-
ner of Application of Certain Safety Appliances.

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
employees 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 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 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, dimensions, 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 com-
ply with any such requirement of the Interstate Commerce Commission
shall be subject to a like penalty as failure to comply with any require-
ment 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 re-
spect to the equipment of cars actually in service upon the date of the
passage of this act;” and

Whereas hearings in the matter of the number, dimensions, 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 Washington, 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 superseding the Commission’s order
of October 13, 1910, relative thereto

Tt ts 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
666 THE SAFETY APPLIANCE ACTS.

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 (114) inches in diameter, of wrought iron or steel without weld.

The brake-wheel may be flat or dished, not less than fifteen (15), pref-
erably sixteen (16), inches in diameter, of malleable iron, wrought iron
or steel.

Location.—The hand-brake shall be so located that it can be safely op-
erated while car is in motion.

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
(4) 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
(7%) 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 (3¢), preferably
seven-sixteenths (7/16) inch wrought iron or steel, with a link on the
brake-rod end of not less than seven-sixteenths (7/16), preferably one-
half (14), inch wrought iron or steel, and shall be secured to brake-shaft
drum by not less than one-half (14) 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-shait shall be provided with a trunnion. of not less
than three-fourths (34), 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 (114) 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 and five-sixteenths (1 5/16) inches
square. When ratchet-wheel with square fit is used provision shall be
ORDERS OF INTERSTATE COMMERCE COMMISSION. 667

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 (5%),
preferably five and one-half (514), inches in diameter and shall have not
less than fourteen (14), preferably 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 up-
per portion of brake-shaft; said brake-shaft support shall be fastened with
not less than one-half (14) inch bolts or rivets.

The brake-pawl shall be pivoted upon a bolt or rivet not less than five-
eights (3¢) of an inch in diameter, or upon a trunnion secured by not less
than one-half (14) inch bolt or rivet, and there shall be a rigid metal con-
nection 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 (34) of an inch in diameter; said nut shall be se-
cured by riveting over or by the use of a 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 shall 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 (34)
by one and one-half (114) inches or equivalent, which shall be securely
fastened to body of car with not less than one-half (1%) inch bolt 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.—Full lenghth of car, center of roof.

On outside-metal-roof cars there shall be two (2) latitudinal extensions
from longitudinal running-board to ladder locations, except on-refrigerator
cars where such latitudinal extensions cannot be applied on account of ice
hatches. °

Manner of Application.—Running-boards' shall be continuous from end
668 THE SAFETY APPLIANCE ACTS.

to end 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 (14) by one and
one-half (114) inches, or equivalent, of wrought iron or steel.

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 in-.
side 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 (14) inch
bolts with nuts outside (when possible) and riveted over, or with not less
than one-half (14) inch rivets.

Ladders.

Number.—Four (4).

Dimensions.—Minimum clear length of tread: Side laddérs 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
will not permit the application of a tread of end ladder to coincide with bot
ORDERS OF INTERSTATE COMMERCE COMMISSION. 669

tom tread of side ladder, the bottom tread of end ladder must coincide with
second tread from bottom of side ladder.

Hard-wood treads, minimum dimensions one and one-half (114) by two
(2) inches.

Iron or steel treads, minimum diameter five-eighths (56) of an inch.

Minimum clearance of treads, two (2), preferably two and one-half
(214), 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 corner of car.

Manner of Application.—Metal ladders without stiles near corners of
cars shall have foot guards or upward projections 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 (%) inch
bolts with nuts outside (when possible) and riveted over, or with not less
than one-half (14) inch rivets. Three-eighths (3¢) 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 (2) adjacent
specified roof-handholds, provided the dimensions and locations coincide,
and that an extra leg is securely fastened to car at point of angle.

Dimensions.—Minimum diameter, five-eights (54) of an inch, wrought
iron or steel.

Minimum clear length, sixteen (16) inches.

Minimum clearance, two (2), preferably two and one-half (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.
670 THE SAFETY APPLIANCE ACTS.

Manner of Application.—Roof-handholds shall be securely fastened
with not less than one-half (14) inch bolts with nuts outside (when possi-
ble) and riveted over, or with not less than one-half (14) inch rivets.

Side-Handholds,

Number.—Four (4).

[Tread of side-ladder is a side-handhold.]

Dimensions.—Minimum diameter, five-eighths (5¢) of an inch, wrought
iron or steel. Minimum 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 of Application.—Side-handholds shall be securely fastened
with not less than one-half (14) inch bolts with nuts outside (when possi-
ble) and riveted over, or with not less than one-half (%4) 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 (54) of an inch, wrought
iron or steel. Minimum clear length, sixteen (16) inches, preferably
twenty-four (24) inches.

A handhold fourteen (14) inchés in length may be used where it is im-
possible to use one sixteen (16) inches in length.

Minimum clearance, two (2), preferably two and one-half (234) 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-hand-
hold. Clearance of outer end of handhold shall be not more ae eight (8)
inches from side of car.

One (1) near each side of each end of car on face of end-sill or sheath-
ing over end-sill, projecting outward or downward. 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 additional 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-sill.

Manner of Application.—Horizontal end-handholds shall be securely
fastened with not less than one-half (14) inch bolts with nuts outside
ORDERS OF INTERSTATE COMMERCE COMMISSION. 671

(when possible) and riveted over, or with not less'than one-half (14) inch
rivets.
Vertical End-Handholds.

Number.—Two (2) on full-width platform end-sill cars, as heretofore
described.

Dimensions.—Minimum diameter five-eighths (54) of an inch, wrought
iron or steel. é,

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 fas-
tened with not less than one-half (14) inch bolts with nuts outside (when
possible) and riveted over, or with not less than one-half (14) inch rivets.

Uncoupling-Levers.

Number.—Two (2).

Uncoupling-levers may be either single or double, and of any efficient de-
sign,

Dimensions.—Handles of uncoupling-levers, except those shown on Plate
B or similar designs, shall be not more than six (6) inches from sides
of car.

Uncouping-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 (3%) inches beyond center of eye of uncoupling-pin of coupler
when horn of coupler is against the buffer-block or end-sill. (See Plate B.)

Ends of handles shall extend not less than four (4) inches below bottom:
of end-sill or shall be so constructed as to give a minimum clearance of two
(2) inches around handle. Minimum drop of handles shall be twelve (12)
inches; maximum, 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 suitable 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.
622 THE SAFETY APPLIANCE ACTS.

Hopper Cars Anp Hicu-Sipk GonDoLAS WITH Fixep Ewps.

[Cars with sides more than thirty-six (36) inches above the floor are high-
side 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, 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.”

Sul.Steaps.
Same as specified for ‘‘Box and other house cars.”

Ladders.
Number.—Same as specified for “Box and other house cars.”
Dimensions.—Same as specified for “Box and other house cars,” ex-

cept 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 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, 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-sills, 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.
ORDERS OF INTERSTATE COMMERCE COMMISSION. 673

Dror-Enp HicHu-SipE GoNnpDOoLA 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 of Application.—Same as specified for “Box and other house
cars.”

Sill-Steps.
Number.—Same as specified for ‘Box and other house cars.”

Ladders.

Number.—Too (2).

Dimensions.—Same as specified for “Box and other house cars,” ex-
cept 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 corner 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.”

Location.—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 siteen
(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 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.

Fed Act—43
674 THE SAFETY APPLIANCE ACTS.

Fixep-Enp Low-Sipg GonporaA AND Low-SipE Hopper Cars.

[Cars with sides thirty-six (36) inches or less above the floor are low-
side 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 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.”

Sul-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) near each end on each side of car, not
less than twentyfour (24) nor more than thirty (30) inches above center
line of coupler, if car construction will permit, but handhold shall not
project above stop 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-Holds.

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 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 will 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.”

Uncoupling-Levers.

Same as specified for ‘““Box and other house cars.”
ORDERS OF INTERSTATE COMMERCE COMMISSION. 675

End-Ladder 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 outer face of buffer-block.

Drop-ENp Low-Sip— GonpoLa CARs.

Hand-Brakes.
Number.—Same as specified for “Box and other house cars.”
Dimensions.—Same as specified for “Box and other house cars.”

Location.—Ejach hand-brake shall be so located that it can be safely op-
erated 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 support may be omitted.

SillSteps.
Same as specified for “Box and other house cars.”

Side-Handholds.

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 above center
line of coupler, if car construction 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.”
676 THE SAFETY APPLIANCE ACTS.

End-Ladder Clearance.

No part of car above end sills within thirty (30) inches from side of
car, evcept 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.

FLAT Cars.

[Cars with sides twelve (12) inches or less above the floor may be equipped

the same as 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 of Application.—Same as specified for “Box and other house
cars.”

Sul-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.”
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.”
ORDERS OF INTERSTATE COMMERCE COMMISSION. 677

TANK-Cars WITH SIDE-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 op-
erated 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.”

Sul-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) addi-
tional vertical handholds shall be applied, one (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 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-eigths (54) of an inch, wrought
iron or steel. Minimum clearance two (2), preferably two and one-half
(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 fas-
tened.
678 THE SAFETY APPLIANCE ACTS.

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.

Dimensions.—Not less than three-fourths (34) of an inch, iron.

Location.—Running full length of tank either at side supported by posts
or securely fastened to tank or tank-bands, not less than thirty (30) nor
more than sixty (60) inches above platform.

Manner of Application.—Safety-railings shall be securely 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 buffer-block, brake-shaft, brake-shaft brackets, brake-wheel or tfn-
coupling-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 SHoR?T SIpE-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 op-
erated 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.”

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.

Dimensions.—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 shall extend from
center to center of bolsters, one (1) on each side.

Manner of Application.—If side running-boards are applied below cen-
ORDERS OF INTERSTATE COMMERCE COMMISSION. 679

ter 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 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.—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), preferably not more than
twenty-two (22), inches above the top of rail.
Manner of Application.—Same as specified for “Box and other house
cars.”
Ladders.

[Jf running-boards are so located as 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 (114) by two
(2) inches.

Wrought iron or steel treads, minimum diameter, five-eighths (5) of
an inch.

Minimum clearance, two (2), preferably two and one-half (214), 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 side end of each run-
ning-board. :

Manner of Application.—Ladders shall be securely fastened with not
less than one-half (%) inch 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-sills, or one (1) attached to top of running-
board projecting outward above sill-steps or ladders on tank cars without
side-sills. 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) addi-
680 THE SAFETY APPLIANCE ACTS.

tional vertical handholds shall be applied, one (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 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 (354) of an inch, wrought
iron or steel.

Minimum clearance two (2), preferably two and one-half (214), 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 handholds 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 fas-
tened.

Safety-Railings.

Number.—One (1) running around sides and ends of tank or two (2)
running full length of tank.

Dimensions.—Minimum diameter, seven-eighths (7) of an inch, wrought
iron or steel.

Minimum clearance, two and one-half (214) inches.

Location.—Running full length of tank, not less than thirty (30) nor
more than sixty (60) inches above platform or running-board.

Manner of Application.—Safety-railings shall be securely fastened to
tank or tank-bands and secured against end shifting.

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-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-
ORDERS OF INTERSTATE COMMERCE COMMISSION. 681

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 op-
erated 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.”

Brake-Step.
Same as specified for “Box and other house cars.”

Running-Boards.

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 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.

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.

Sil-Steps.

Number.—Four (4). [Jf tank has high running-boards, making lad-
ders necessary, Sill-steps must meet ladder requirements. |

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 practicable.

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 laterally braced.

Sill-steps sall be securely fastened with not less than one-half (14) inch
bolts with nuts outside (when possible) and riveted over, or with one-half
(4) inch rivets.

Side-Handholds.

Number.—Four (4) or more.
Dimensions.—Same as specified for “Box and other house cars.”
682 THE SAFETY APPLIANCE ACTS.

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 out-
side 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 vertical 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 of Application.—Same as specified for “Box and other house
cars.”

Safety-Railings.

Number.—One (1).

Dimensions.—Minimum diameter seven-eighths (7) of an inch,
wrought iron or steel.

Minimum clearance two and one-half (2%) inches.

Location.—Safety-railings shall be continuous around sides and ends of
car, not less than thirty (30) nor more than sixty (60) inches above run-
ning-board.

Manner of Application.—Safety-railings shall be securely 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 cen-~
ter line of coupler.

End-Ladder Clearance.

No part of car above buffer-block within thirty (30) inches from side of
ORDERS OF INTERSTATE COMMERCE COMMISSION. 683

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 knuckle when closed with
coupler-horn against the buffer-block or back-step, 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.

Casooske Cars WITH PLATFORMS.

Hand-Brakes.

Number.—Each caboose 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.—Same as specified for “Box and other house cars.”

Location.—Each hand-brake shall be so located that it can be safely op-
erated while car is in motion.

The brake-shaft on caboose cars with platforms shall be located on plat-
form 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 cars.”
Location.—Full length of car, center of roof. [On caboose cars with
cupolas, longitudinal running-boards shall extend from cupolas 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 cars.”

Location.—On roof of caboose, in line with and running parallel to
684 THE SAFETY APPLIANCE ACTS.

treads of ladder, not less than eight (8) nor more than fifteen (15) inches
from edge of roof.
Manner of Application.—Same as specified for **Box and other house
cars.”
Cupola-Handholds.

Number.—One (1) or more.

Dimensions.— Minimum diameter, five-eighths (54) of an inch, wrought
iron or steel.

Minimum clearance two (2), preferably two and one-half (2%), inches.

Location.—One (1) continuous handhold extending around top of cup-
ola 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 handhold specified, if locations coincide.

Manner of Application.—Cupola-handholds shall be securely fastened
with not less than one-half (14) inch bolts with nuts outside and riveted
over or with not less than one-half (14) inch rivets.

Side-Handholds.

Number.—Four (4).

Dimensions.— Minimum diameter, five-eighths (54) of an inch, wrought
iron or steel.

Minimum clear length, thirty-six (36) inches.

Minimum clearance, two (2), preferably two and one-half (214), inches.

Location.—One (1) near each end on each side of car, curving down-
ward 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.”

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
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 (5¢) of an inch, wrought
iron or steel.
ORDERS OF INTERSTATE COMMERCE COMMISSION. 685

Minimum clearance, two (2), preferably two and one-half (214), 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-rail, 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 pro-
vided 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.”

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 op-
erated 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 specified for “Box and other house cars.”

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 caboose cars with
cupolas, longitudinal running-boards shall extend from cupola to ends of
roof.]

Outside-metal-roof cars shall have latitudinal extensions leading to lad-
der locations.

Manner of Application.—Same as specified for “Box and other house
cars.”

Sul-Steps.

Same as specified for “Box and other house cars.”

Side-Door Steps.
Number.—Two (2) [if caboose has side-doors.]
Dimensions.—Minimum length, five (5) feet.
Minimum width, six (6) inches.
686 THE SAFETY APPLIANCE ACTS.

Minimum thickness of tread, one and one-half (114) inches.

Minimum height of back-stop, three (3) inches.

Maximum 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 supported 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 (34) 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 ex-
ceptions herein noted, shall extend beyond the outer face of buffer-block.

Roof-Handholds.

Number.—Four (4).

Dimensions.—Same as specified for “Box and other house cars.”

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 Application.—Roof-handholds shall be securely fastened
with not less than one-half (1%) inch bolts with nuts outside (when possi-
ble) and riveted over, or with not less than one-half (14) inch rivets.

Cupola-Handholds.
Number.—One (1) or more.
Dimensions.—Minimum diameter five-eighths (54) of an inch, wrought
iron or steel.
Minimum clearance, two (2), preferably two and one-half (214), inches.
ORDERS OF INTERSTATE COMMERCE COMMISSION. 687

Location.—One (1) continuous cupola-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 corner, not less than
sixteen (16) inches in clear length from point of angle, may take the place
of the one (1) continuous handhold specified, if locations coincide.

Manner of Application.—Cupola-handhold shall be securely fastened
with not less than one-half (14) inch bolts with nuts outside and riveted
over or with not less than one-half (14) 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 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.” ‘

Side-Door Handholds.

Number.—Four (4); Two (2) curved, two (2) straight.

Dimensions.—Minimum diameter five-eighths (5¢) of an inch, wrought
iron or steel.

Minimum clearance two (2), preferably two and one-half (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 downward 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 bottom of car to a point not more
than six (6) inches above level of bottom of door.

Manner of Application.—Side-door handholds shall be securely fas-
tened with not less than one-half (44) inch bolts with nuts outside (when
possible) and riveted over, or with not less than one-half (14) 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 handhold shall 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.

Manner of Application.—Same as specified for “Box and other house
cars.”
688 THE SAFETY APPLIANCE ACTS.

Vertical End-Handholds.
Same as specified for “Box and other house cars.”

Uncoupling-Levers.
Same as specified for “Box and other house cars.”

Hand-Brakes.

Number.—Each passenger-train car shall be equipped with an efficient
hand-brake, which shall operate in harmony with the power-brake thereon.

Location.—Each hand-brake shall be so located that it can be safely op-
erated while car is in motion.

Side-Handholds.

Number.—Eight (8).

Dimensions.—Minimum diameter, five-eighths (54) 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 securely fastened
with bolts, rivets or screws.

. End-Handholds.
Number.—Four (4).
Dimensions.—Minimum diameter, five-eighths (54) of an inch, wrought

iron or steel.

Minimum clear length, sixteen (16) inches.

Minimum clearance, two (2), preferably two and one-half (214), inches.

Handholds shall be flush with or project not more than one (1) inch be-
yond vestibule face.

Location.—Horizontal: One (1) near each side on each end project-
ing 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 securely fastened

with bolts or rivets.

When marker-sockets or brackets are located so that they can not 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 un-

coupling attachments shall be so applied that the coupler can be operated
from left side of car.
ORDERS OF: INTERSTATE COMMERCE COMMISSION. 689

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 harmony with the power-brake thereon.

Location.—Each hand-brake shall be so located that it can be safely op-
erated while car is in motion.

End-Handholds.

Number.—Four (4).

Dimensions.—Minimum diameter, five-eighths (56) of an inch, wrought
iron or steel.

Minimum clear length, sixteen (16) inches.

Minimum clearance, two (2), preferably two and one-half (214), inches.

Handholds shall be flush with or project not more than one (1) inch be-
yond 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 hand-
hold shall be not more than sixteen (16) inches from end of end-sill.

Manner of Application.—End-handholds shall be securely fastened
with bolts or rivets

End Platform-Handholds.

Number.—Four (4). [Cars equipped with safety-gates do not require
end platform-handholds. |

Dimensions.—Minimum clearance two (2), preferably two and one-
half (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 por-
tion 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. ‘

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 of end of car to handle of attachment.

On passenger-train cars used in freight or mixed-train service the un-
coupling attachments shall be so applied that the coupler can be operated
from left side of car.

PASSENGER-TRAIN CARS WITHOUUT END-PLATFORMS.
Hand-Brakes.
Number.—Each passenger-train car shall be equipped with an efficient

Fed Act—44
690 THE SAFETY APPLIANCE ACTS.

hand-brake which shall operate in harmony with the power-brake thereon.

Location.—Each hand-brake shall be so located that it can be safely op-
erated while car is in motion.

Sil-Steps.

Number.—Four (4).

Dimensions.—Minimum lenth of tread ten (10), preferably twelve (12),
inches.

Minimum cross-sectional area one-half (1%) by one and one-half (1%)
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 in-
side of face of 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.—Steps exceeding eighteen (18) inches in
depth shall have an additional tread and be laterally braced.

Sill-steps shall be securely fastened with not less than one-half (14) inch
bolts with nuts outside (when possible) and riveted over, or with not less
than one-half (14) inch rivets.

Side-Handholds.

Number.—Four (4).

Dimensions.— Minimum diameter, five-eighths (5<) of an inch, wrought
iron or steel.

Minimum clearance, two (2), preferably two and one-half (214), 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 (2+) 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.

Manner of Application.—Side-handholds shall be securely fastened
with bolts, rivets or screws.
End-Handholds.

Number.—Four (4).

Dimensions.—Minimum diameter, five-eighths (54) of.an inch, wrought
iron or steel.

Minimum clear length, sixteen (16) inches.

Minimum clearance, two (2), preferably two and one-half (2%), inches.

Location.—Horizontal: One (1) near each side on each end projecting
downward 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.
ORDERS OF INTERSTATE COMMERCE COMMISSION. 691

Manner of 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 can not be con-
veniently reached from platforms, suitable steps and handholds shall be
provided for men to reach such sockets or brackets.

End-Handrails.
[On Cars with projecting end-sills.]

Number.—Four (4).

Dimensions.—Minimum diameter, five-eighths (54) of an Siele wrought
iron or steel.

Minimum clearance, two (2), preferably two and one-half (214), 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 securely fastened
with bolts, rivets or screws.

Side-Door Steps.

Number.—One (1) under each door.

Dimensions.—Minimum length of tread, ten (10), preferably twelve
(12), inches.

Minimum cross-sectional area, one-half (%4) by one and one-half (134)
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 (18) inches in depth shall
have an additional tread and be laterally braced.

Side-door steps shall be securely fastened with not less than one-half (1%)
inch bolts with nuts outside (when possible ) aaa riveted over, or with not
less than one-half (14) 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.
692 THE SAFETY APPLIANCE ACTS.

On passenger-train cars used in freight or mixed-train service, the un-
coupling attachment shall be so applied that the coupler can be operated
from the left side of car.

Steam Locomotives UsrEp 1n 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 of Application.—Tender sill-steps shall be securely 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.

Manner of Application.—Pilot sill-steps shall be securely fastened with
bolts or rivets.

Pilot-Beam Handholds.

Number.—Two (2).

Dimensions.—Minimum diameter, five-eighths (58) of an inch, wrought
iron or steel.

Minimum clear length, fourteen (14), preferably sixteen (16), inches.

Minimum clearance, two and one-half (214) inches.

Location.—One (1) on each end of buffer-beam.

[Jf uncoupling-lever extends across front end of locomotive to within
eight (8) inches of end of buffer-beam, and is seven-eighths (14) of an
inch or more in diameter, securely fastened, with a clearance of two and
one-half (22) inches, it is a handhold. }

Manner of Application.—Pilot-beams 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 (74) of an inch, wrought iron or steel.
Horizontal, minimum clear. length, sixteen (16) inches.
Vertical, clear length equal to approximate height of tank.
ORDERS OF INTERSTATE COMMERCE COMMISSION. 693

Minimum clearance two (2), preferably two and one-half (214), 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 enh side of
locomotive at gangway; applied vertically.

Manner of Application.—Side-handholds shall be securely fastened
with not less than one-half (14) inch bolts or rivets.

Rear-End Handholds.

Number.—Two (2).

Dimensions.—Minimum diameter, five-eighths (54) of an inch, wrought
iron or steel.

Minimum clear length, fourteen (14) inches.

Minimum clearance two (2), preferably two and one-half (234), 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 fast-
ened with not less than one-half (14) 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), ieeters
ably 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.

Manner of Application.—Uncoupling-levers shall be securely fastened
with bolts or rivets.

Couplers.

Locomotives shall be equipped with automatic couplers at rear of tender

and front of locomotive.

Steam Locomotives UsEp IN SWITCHING SERVICE.
Footboard.

Number.—Two (2) or more.
Dimensions.— Minimum width of tread, ten (10) inches, wood.
Minimum thickness of tread, one and one-half (114), preferably two

(2), inches
694 THE SAFETY APPLIANCE ACTS.

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 constructed in two (2)
sections, provided that practically all space on each side of coupler is filled;
each séction shall be not less than three (3) feet in length.

Footboards shall be securely 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 ap-
plied not less than thirty (30) inches nor more than sixty (60) inches above
tread of footboard.

Sil-Steps.

Number.—Two (2) or more.

Dimensions.—Lower tread of step shall be 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
ten (10), preferably twelve (12), inches.

Location.—One (1) or more on each side at gangway secured to loco-
motive 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 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 securely fastened
with bolts or rivets.
ORDERS OF INTERSTATE COMMERCE COMMISSION. 695

Side-Handholds.

Number.—Four (4).

Dimensions.—Minimum diameter, seven-eighths (7) of an_ inch,
wrought iron or steel.

Clear length equal to approximate height of tank.

Minimum clearance, two (2), preferably two and one-half (214), inches.

Location.—Vertical. One (1) on each side of tender near front cor-
ner; one (1) on each side of locomotive at gangway.

Manner of Application.—Side-handholds shall be securely fastened
with bolts or rivets. .

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-locomotives 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 head-
light.

End-Ladder Clearance.

No part of locomotive or tender except draft-rigging, coupler and at-
tachments, 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.

SPECIFICATIONS CoMMON To ALL, STEAM LOCOMOTIVES.
Hand-Brakes.

Hand-brakes will not be required on locomotives nor on tenders when at-
tached to locomotives.

If tenders are detached from locomotives and used in special service,
they shall be equipped with efficient hand-brakes.
696 THE SAFETY APPLIANCE ACTS.

Running-Boards.

Number.—Two (2).

Dimensions.—Not less than ten (10) inches wide. If of wood, not less
than one and one-half (114) inches in thickness; if of metal, not less than
three-sixteenths (3/16) of an inch, properly supported.

Location.—One (1) on each side of boiler extending from cab to front
end near pilot-beam. [Running-boards may be in sections. Flat-top steam-
chests may form section of running-board. |

Manner of Application.—Running boards shall be securely 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 hand-
railings not iess 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.

Dimension.—Not less than one (1) inch in diameter, wrought iron or
steel.

Location.—One on each side of boiler extending from near cab to
near front end of boiler, and extending across end of boiler, not less than
twenty-four (24) nor more than sixty-six (66) inches above running-board.

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 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. | ot

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
ORDERS OF INTERSTATE COMMERCE COMMISSION. 697

more than two (2) inches in diameter and properly located, may form sec-
tion of handhold.

An additional horizontal end handhold shall be applied on rear end of all
Vanderbilt type of tenders which are not equipped 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) inches.

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 shall be equipped with secure hand-
rails 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 top of end-sill, and se-
curely 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 foregoing 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 approx-~
imate type.

“Ricut” or “Lerr” 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 en-
velope by registered mail.

By the Commission:
Epwarp A. Mose.ey, Secretary.
698 THE SAFETY APPLIANCE ACTS.

SUPPLEMENTAL ORDERS GRANTING AN EXTENSION OF TIME FOR SPECIFIED
REQUIREMENTS.

At a General Session of the Interstate Commerce Commission, held at its
office in Washington, D. C., on the 13th day of March, A. D. 1911.

Present:
Jupson C. CLEMENTS, Epcar E. CLark,
Cuarzes A. PRrouty, JAMEs S. Harban,
FRANKLIN K. LANE, Cuaryes C. McCuorp,

BALTHASAR H. MEYER,

In the Matter of the Extension of the Period within Which Common Car-
riers Shall Comply with the Requirements of An Act Entitled, “An Act
to Supplement ‘An Act to Promote the Safety of Employees and Trav-
elers Upon Railroads by Compelling Common Carriers Engaged in In-
terstate Commerce to Equip Their Cars with Automatic Couplers and Con-
tinuous Brakes and Their Locomotives with Driving-Wheel Brakes and
for Other Purposes,’ and Other Safety Appliance Acts, and for Other
Purposes,’ Approved April 14, 1910, as Amended by ‘“‘An Act Making
Appropriations for Sunday Civil Expenses of the Government for the
Fiscal Year Ending June 30, 1912, and for Other Purposes,” Approved
March 4, 1911.

Whereas, pursuant to the provisions of the act above stated, the Inter-
state Commerce Commission, by its orders duly made and entered on Oc-
tober 13, 1910, and March 13, 1911, has designated the number, dimensions,
location, and manner of application of the appliances provided for by sec-
tion 2 of the act aforesaid and section 4 of the act of March 2, 1893, as
amended April 1, 1896, and March 2, 1903, known as the “Safety Appliance
Acts”; and whereas the matter of extending the period within which com-
mon carriers shall comply with the provisions of section 2 of the act first
aforesaid being under consideration, upon full hearing and for good cause
shown:

It is ordered, That the period of time within which said common carriers
shall comply with the provisions of section 3 of said act in respect of the
equipment of cars in service on the Ist day of July, 1911, be, and the same
is hereby, extended as follows, to wit:

FREIGHT-TRAIN Cars.

(a) Carriers are not required to change the brakes from right to left
side on steel-underframe cars with platform end sills, or to change the end
ladders on such cars, except when such appliances are renewed, at which
time they must be made to comply with the standards prescribed in said
order of March 13, 1911.
ORDERS OF INTERSTATE COMMERCE COMMISSION. 699

(6) Carriers are granted an extension of five years from July 1, 1911,
to change the location of brakes on all cars other than those designated in
paragraph (a) to comply with the standards prescribed in said order.

(c) Carriers are granted an extension of five years from July 1, 1911,
to comply with the standards prescribed in said order in respect of all brake
specifications contained therein, other than those designated in paragraphs
(a) and (b), on cars of all classes.

(d) Carriers are not required to make changes to secure additional end-
ladder clearance on cars that have 10 or more inches end-ladder clearance,
within 30 inches of side of car, until car is shopped for work amounting
to practically rebuilding body of car, at which time they must be made to
comply with the standards prescribed in said order.

(e) Carriers are granted an extension of five years from July 1, 1911,
to change cars having less. than 10°inches end-ladder clearance, within 30
inches of side of car, to comply with the standards prescribed in said order.

(f) Carriers are granted an extension of five years from July 1, 1911, to
change and apply all other appliances on freight-train cars to comply with
the standards prescribed in said order, except that when a car is shopped
for work amounting to practically rebuilding body of car, it must then be
equipped according to the standards prescribed in said order in respect to
handholds, running boards, ladder, sill-steps, and brake staffs: Provided,
That the extension of time herein granted is not to be construed as reliev-
ing carriers from complying with the provisions of section 4 of the act of
March 2, 1893, as amended April 1, 1896, and March 2, 1903.

(g) Carriers are not required to change the location of handholds (ex-
cept end handholds under end sills), ladders, sill steps, brake wheels, and
brake staffs on freight-train cars where the appliances are within 3 inches
of the required location, except that when cars undergo regular repairs
they must then be made to comply with the standards prescribed in said
order.

PASSENGER-TRAIN Cars.

(h) Carriers are granted an extension of three years from July 1, 1911,
to change passenger-train cars to comply with the standards prescribed in
said order.

LOcoMOTIVES, SWITCHING.

(i) Carriers are granted an extension of. one year from July 1, 1911,
to change switching locomotives to comply with the standards prescribed in
said order.

Locomotives, OTHER THAN SWITCHING.

(j) Carriers are granted an extension of two years from July 1, 1911,
700 THE SAFETY APPLIANCE ACTS.

to change all locomotives of other classes to comply with the standards pre-
scribed in said order.

A true copy.
Epw. A. Mose.ey, Secretary.

At a General Session of the Interstate Commerce Commission, held at its
office in Washington, D. C., on the 2d day of November, A. D. 1915.

In the Matter of the Application of Certain Railroad Companies for a Fur-
ther Extension of Time within Which to Make Their Freight Cars Con-
form to the Standards of Equipment of Freight Cars as Prescribed by
the Commission pursuant to the Provisions of Section 3 of An Act to
Supplement the Safety Appliance Acts (Public No. 133), Approved ‘April
14, 1910, as Amended by “An Act Making Appropriations for Sundry
Civil Expenses of the Government for the Fiscal Year Ending June 30,
1912, and for Other Purposes,’ Approved March 4, 1911. /

It appearing, That certain railroad companies have made application for
a further extension of time within which to comply with the provisions of
section 3 of an act to supplement the safety appliance acts, approved April
14, 1910, as amended by “An act making appropriations for sundry civil ex-
penses of the government for the fiscal year ending June 30, 1912, and for
other purposes,” approved March 4, 1911; upon full hearing and for good
cause shown:

It is ordered, That the period of time heretofore granted to common car-
riers subject to the act above stated by paragraphs (0), (c), (e), and (f) of
the order of the Commission duly entered on March 13, 1911, ‘In the matter
of the extension of the period within which common carriers shall comply
with the requirements of an act entitled, ‘An act to supplement “An act to
promote the safety of employees 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 driv-
ing-wheel brakes and for other purposes,” and other safety appliance acts,
and for other purposes, approved April 14, 1910, as amended by ‘An act
making appropriations for sundry civil expenses of the government for the
fiscal year ending June 30, 1912, and for other purposes,’ approved March
4, 1911,” be, and the same is hereby, futher extended for a period of 12
months from July 1, 1916.

And it is further ordered, That a copy of this order be served upon all
common carriers subject to said act.

By the Commission.

[SEAL. ] Grorcr B. McGrnry,

Secretary.
Plates Illustrating United States

Safety Appliance Standards.
ORDERS OF INTERSTATE COMMERCE COMMISSION. 703

     
 
  

 
  
 

Riveted over or use lock nut in %
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[Any efficient arrangement of ratchet-wheel and pawl may be used.)
704 THE SAFETY APPLIANCE ACTS.

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When necessary the red should be ben? or ws
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retainer pipe, or end posts, allowing Free-
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The end of handle to extend nor less Than
4" below bottom of end s1// or. h
to be so constructed as 10 GIVE a HII TIMIh T
Clearance of 2 around hand/e.

since oe uae te taken Application to concealed endsi!/ cars
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Gracker oe Lt bee rod Graduated lock castiigs may he used.
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Application to outside erdsi/! Cars.
705

ORDERS OF INTERSTATE COMMERCE COMMISSION,

 

       

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  

 

 

 

 

 

 

 

 

 

 

    
 

   

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Appendix C

THE HOURS OF SERVICE ACT.

Text oF Act.
Act of March 4, 1907, 34 Stat. at L. 1415, chap. 2939.

§ 1. [To Whom Applicable—‘‘Railroad’’ and ‘‘Employee’’ De-
fined.]—That the provisions of this Act shall apply to any common car-
rier or carriers, their officers, agents, and employees, engaged in the trans-
portation of passengers or property by railroad in the District of Columbia
or any Territory of the United States, or from one State or Territory of
the United States or the District of Columbia to any other State or Terri-
tory 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
or operated under a contract, agreement, or lease; and the term “employ-
ees’ as used in this Act shall be held to mean persons actually engaged in
or connected with the movement of any train.

§ 2. [Periods of Duty and Recreation Fixed—Additional Duty of
Operators in Emergency—Extension of Time by Interstate Com-
merce Commission. ]—That it shall be unlawful for any common carrier,
its officers or agents, subject to this Act to require or permit any employee
subject to this Act to be or remain on duty for a longer period than sixteen
consecutive hours, and whenever any such employee of such common car-
rier shall have been continuously on duty for sixteen hours he shall be re-
lieved and not required or permitted again to go on duty until he has had
at least ten consecutive hours off duty; and no such employee 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 employee who by the use of the telegraph or telephone
dispatches, reports, transmits, receives, or delivers orders pertaining to or
affecting 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

Fed Act—46 721
122 HOURS OF SERVICE ACT.

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 employees 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.
(34 Stat. L. 1416.) ,

§ 3. [Penalty—How Recovered—Jurisdiction—Duty to Institute
Proceedings—Limitations—When Act Not Applicable.]—That any
such common carrier, or any officer or agent thereof, requiring or permitting
any employee to go, be, or remain on duty in violation of the second section
hereof shall be liable to a penalty of not less than $100 nor more than $500
for each and every 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 violations shall have
been committed; and it shall be the duty of such district attorney to bring
such suit upon satisfactory information 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 attorney information of any
such violations as may come to its knowledge. In all prosecutions under
this Act the common carrier shall be deemed to have 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 employee at the time said employee
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. (As amended by Act May 4, 1916. Section 2 of said Act
provides that nothing in the act shall affect any suit instituted prior to the
approval of the act, or pending at the time of the approval of the act.)

§ 4. [Duty of Interstate Commerce Commission to Enforce. ]—It
shall be the duty of the Interstate Commerce Commission to execute and en-
force 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.

§ 5. [Time When Effective.]—That this Act shall take effect and be
in force one year after its passage.
RULINGS OF INTERSTATE COMMERCE COMMISSION. 723

Conference Rulings on the Hours-of-Service Law by the Commis-
sion.
April 7, 1908.
56. Street-Car Companies.—Upon inquiry whether the hours-of-
service law applies to electric street car lines which are interstate carriers:
Held, That it applies to all railroads subject to the provisions of the act to

regulate commerce, as amended, including street railroads when engaged in
interstate commerce. (See Rule 287.)

May 5, 1908.

74. Employee Deadheading to or from Work.—Employees dead-
heading on passenger trains or on freight trains and not required to per-
form, and not held responsible for the performance of, any service or duty
in connection with the movement of the train upon which they are dead-
heading, are not while so deadheading ‘on duty” as that phrase is used in
the act regulating the hours of labor. (See Rule 287-b.)

June 25, 1908.

88. General Rulings.—(a) The specific proviso of the law in regard
to hours of service is:

“That no operator, train dispatcher, or other employee who by the use of
the telegraph or telephone dispatches, reports, transmits, receives, or
delivers orders pertaining to or affecting train movements shall be re-
quired 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 employees named in this proviso may be permitted to be and re-
main on duty for four additional hours in a twenty-four-hour period
or not exceeding three days in any week.”

These provisions apply to employees in towers, offices, places, and sta-
tions, and do not include train employees who, by the terms of the law, are
permitted to be or remain on duty sixteen hours consecutively or sixteen
hours ia the aggregate in any twenty-four-hour period, and who may oc-
casiona\ly use telegraph or telephone instruments for the receipt or trans-
mission of orders affecting the movement of trains. (See Rule 287.)

(b) Section of the law provides that:

“The provisions of this act shall not apply in any case of casualty or un-
avoidable 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 employee at the time said employee left a terminal, and
which could not have been foreseen.”

Any employee so delayed may therefore continue on duty to the terminal
or end of that run. The proviso quoted removes the application of the law
to that trip. (See Rule 287.)
724 HOURS OF SERVICE -ACT.

November 10, 1908.

108. Ferry Employees.—The hours-of-service law does not apply to
employees on a ferry, even though the ferry be owned by a railroad com-
pany. The law applies to employees connected with the movement of trains,
and hence does not embrace employees engaged only in the operation of a
ferry. This ruling does not apply to car ferries. (See Rule 287.)

April 4, I9IO.

275. Train Baggagemen.—The provisions of section 1 of the hours-
of-service law apply to train baggagemen who are employees of the railway
company and who are required by the rules of the company to perform or
to hold themselves in readiness, when called upon, to perform any duty con-
nected with the movement of any train. (See Rules 74 and 287.)

March 16, 1908.

287. General Rulings.—(a) The provisions of this act apply to all
common carriers by railroad in the District of Columbia, or in any Terri-
tory of the United States, or engaged in the movement of interstate or
foreign traffic; and to all employees of such common carriers who are en-
gaged in or connected with the movement of any train carrying traffic in
the District of Columbia, or in any Territory, or carrying interstate or for-
eign traffic. (See Rule 56.)

(b) Sec. 2. The requirement for ten consecutive hours off duty applies
only to such employees as have been on duty for sixteen consecutive hours.
The requirement for eight consecutive hours off duty applies only to em-
ployees who have not been on duty sixteen consecutive hours, but have been
on duty sixteen hours in the aggregate out of a twenty-four hour period.
Such twenty-four-hour period begins at the time the employee first goes on
duty after having had at least eight consecutive hours off duty. The term “on
duty” includes all the time during which the employee is performing service,
or is held responsible for performance of service. An employee goes ‘‘on
duty” at the time he begins to perform service or at which he is required
to be in readiness to perform service, and goes “off duty” at the time he is
relieved from service and from responsibility for performance of service.
(Qualified by Rule 74.)

(c) The act does not specify the classes of employees that are subject to
its terms. All employees engaged in or connected with the movement of
any train as described in section 1 are within its scope. Train dispatchers,
conductors, telegraphers, firemen, brakemen, train baggagemen who, by
rules of carriers, are required to perform any duty in connection with the
movement of trains, yardmen, switch tenders, tower men, block-signal
operators, etc., come within the provisions of the statute. (Qualified by
Rules 108 and 275; see also Rule 88.)

(d) The proviso in section 2 covers every employee who, by the use of
the telegraph or telephone, handles orders pertaining to or affecting train
RULINGS OF INTERSTATE COMMERCE COMMISSION. 725

‘

movements. In order to preserve the obvious intent of the law this provi-
sion must be construed to include all employees who, by the use of an elec-

trical current, handle, train orders or signals which control movement of
trains. (See Rule 88.)

(e) The prime purpose of this law is to secure additional safety by pre-
venting employees from working longer hours than those specified in the
act. Therefore a telegraph or telephone operator who is employed in a
night and day office may not be required to perform duty in any capacity or
of any kind beyond nine hours of total service in any twenty-four hour
period.

(f) The phrase “towers, offices, places, and stations” is interpreted to
mean particular and definite locations. The purpose of the law and of the
proviso for nine hours of service may not be avoided by erecting offices,
stations, depots, or buildings in close proximity to each other and operating
from one a part of the day while the other is closed, and vice versa.

The statute is remedial in its intent and must have a broad construction
so that the purpose of the Congress may not be defeated.

(g) The Commission interprets the phrase “continuously operated night
and day” as applying to all offices, places, and stations operated during a
portion of the day and a portion of the night a total of more than thirteen
hours.

The phrase “‘operated only during the daytime” refers to stations which
are operated not to exceed thirteen hours in a twenty-four hour period,
and is not considered as meaning that the operator thereat may be employed
only during the daytime.

(h) The act provides that operators employed at night and day stations
or at daytime stations may, in case of emergency, be required to work four
additional hours on not exceeding three days in any week. Manifestly, the
emergency must be real and one against which the carrier cannot guard.

“In any week” is construed to mean in any calendar week, beginning
with Sunday.

(1) Sec. 3. The instances in which the act will not apply include only
such occurrences as could not be guarded against; those which involved no
neglect or lack of precaution on the part of the carrier, its agents, or of-
ficers; and they serve to waive the application of the law to employers on
trains only until such employees, so delayed, reach a terminal or relay point.

(See Rule 88.)

“Casualty,” like its synonyms “accident” and “misfortune,” may proceed
or result from negligence or other cause known or unknown. (Words
and Phrases Judicially Defined, vol. 2, 1003.)

Act of God. Any accident due to natural causes directly and ex-
clusively without human intervention, such as could not have been
prevented by any amount of foresight, and pains, and care reasonably
to have been expected. (Bouvier’s Law Dictionary, vol. 1, 79.)
726 HOURS OF SERVICE ACT.

(7) It will be noted that the penalties for violation of this act are against
the “common carriers, or any officer or agent thereof, requiring or permit-
ting any employee to go, be, or remiain on duty” in violation of the law.
It is clear that the officers and agents of carriers who are liable to the pen-
alties provided in the act are those who have official direction or control of
the employees; and that the penalties do not attach to the employees who,
subject to such supervision or control, perform the service prohibited.

(k) Sec. 4. To enforce this act the Interstate Commerce Commission
has all the powers which have been granted to it for the enforcement of the
act to regulate commerce, including authority to appoint employees, to re-
quire reports, to examine books, papers, and documents, to administer oaths,
to issue subpcenas, and to interrogate witnesses.

February 12, I912.

342. Train Employee’s Sending or Receiving Orders.—A trainman
required by the rules of the carrier, in conjunction with his duties as train-
man, to send, receive, or deliver orders affecting the movement of trains
comes within the proviso of section 2 of the hours-of-service act, and there-
fore a carrier may not require a trainman, who has been on duty longer
than the limit of time fixed for a telegraph or telephone operator, to send,
receive, or deliver orders affecting the movement of trains as a part of the
duties regularly assigned to him.

But upon inquiry whether the practice of requiring conductors of trains
delayed at stations where there is no regularly assigned telegraph or tele-
phone operator on duty, and conductors of trains about to be overtaken by
superior trains, to telephone or telegraph the train despatcher for instruc-
tions is in accord with the act and with the Commission’s order of interpre-
tation of June 25, 1908, Held, That a trainman who has been on duty for
more than 9 hours or for more than thirteen hours is not prohibited from
occasionally using the telegraph or telephone to meet an emergency.
Appendix D

THE BOILER INSPECTION ACT.
Text or Acts.

Act of Feb. 17, 1911, 36 Stat. at L. 913, ch. 103.

An Act to promote the safety of employees and travelers upon railroads
by compelling common carriers engaged in interstate commerce to equip
their locomotives with safe and suitable boilers and appurtenances thereto.

§ 1. [To Whom Applicable—‘‘Railroad’’ and ‘‘Employee’”’ De-
fined.]—The provisions of this act shall apply to any common carrier or
carriers, their officers, agents, and employees, 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 Territory 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 op-
erated under a contract, agreement, or lease, and the term “employees” as
used in this act shall be held to mean persons actually engaged in or con-
nected with the movement of any train.

Effect on state laws.——The Ohio Law, May 20, 1910, requiring an inspection of
boilers by operators of steam railroads, was a valid exercise of the police power
of the state and not an interference with interstate commerce. Though it was
superseded by the Act of Congress Feb. 17, 1911, 36 Stat. 913, which was in con-
flict therewith, as far as interstate carriers were affected, and this from the day
of its passage and not from the day it was to take effect. Louisville, etc., R.
Co. v. Hughes (D. C.), 201° Fed. 727.

Effect on prior judgment.——The act of Congress of March 4, 1915, pro-
viding for inspection and appliances of locomotives, does not abrogate a state
law so as to affect a judgment previously rendered for a plaintiff. Randall v.
Minneapolis, etc., Ry. Co. (Wis.), 156 N. W. 629.

Nature of duty imposed.—Under the Boiler Act, the carrier has discharged
his statutory duty to the engineer by turning over to him a locomotive engine
and boiler and appurenances in proper condition and safe to operate, it is not
answerable to the engineer as an insurer of his safety throughout the run; and,
in order for his personal representative to maintain an action for his death caused
by the explosion of the boiler, the burden rest upon the plaintiff to show that
the defendant has been guilty of the negligence in regard thereto. Virginian
Ry. Co. v. Andrews (Va.), 87 S$. E. 577, 579.

727
728 BOILER INSPECTION ACT.

§ 2. [Time When Effective—Use of Unsafe Boiler Prohibited—
Inspection Required.|—From and after the first day of July, nineteen
hundred and eleven, it shall be unlawful for any common carrier, its offi-
cers 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
locomotive and appurtenances thereof are in proper condition and safe to op-
erate in the service to which the same is put, that the same may be em-
ployed in the active service of such carrier in moving traffic without un-~
necessary peril to life or limb, and all boilers shall be inspected from time to
time in accordance with the provisions of this act, and be able to withstand
such test or tests as may be prescribed in the rules and regulations herein-
after provided for.

§ 3. [Chief Inspectors—Appointment, Duty and Qualifications—
Salary—Office.]—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 superintend-
ence of the inspectors hereinafter provided for, direct them in the duties
hereby imposed upon them, and see that the requirements of this act and
the rules, regulations, and instructions made or given hereunder are ob-
served by common carriers subject thereto. The said chief inspector and
his two assistants shall be selected with reference to their practical knowl-
edge 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. The 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 per-
formance of his duties. The office of the chief inspector shall be in Wash-
ington, District of Columbia, and the Interstate Commerce Commission
shall provide such stenographic and clerical help as the business of the of-
fices of the chief inspector and his said assistants may require.

§ 4. [Division of County into Districts—Selection of Inspectors—
Assignment to Districts—Salary and Expenses—Examination of Ap-
plicants—Persons Ineligible.]—Immediately after his appointment and
qualification the chief inspector shall divide the territory comprising 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 shall be sub-
stantially the same. ‘Thereupon there shall be appointed by the Interstate
Commerce Commission fifty inspectors of locomotive boilers. Said inspect-
ors shall be in the classified service and shall be appointed after competitive
examination according to the law and the rules of the Civil Service Com-
TEXT OF ACT. 729

mission governing the classified service. The chief inspector shall assign
one inspector so appointed to each of the districts hereinafter named. Fach
inspector shall receive a salary of one thousand eight hundred dollars per
year and his traveling expenses while engaged in the performance of his
duty. He shall receive in addition thereto an annual allowance for office
rent, stationery, and clerical assistance, to be fixed by the Interstate Com-
merce Commission, but not to exceed in the case of any district inspector
six hundred dollars per year. In order to obtain the most competent in-
spectors 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 Inter-
state Commerce Commission, shall be used by the Civil Service Commission
as a part of its examination. No person interested, either directly or indi-
rectly, 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.

§ 5. [Rules to Govern Inspection by Carrier—Change of Rules,
How Made—Rules to Govern Inspectors. ]—Each carrier subject to this
act shall file its rules and instructions for the inspection of locomotive boilers
with the chief inspector within three months after the approval of this act,
and after hearing an approval by the Interstate Commerce Commission,
such rules and instructions, with such modifications as the commission re-
quires, shall become obligatory upon such carrier: Provided, however,
That if any carrier subject to this act shall fail to file its rules and instruc-
tions 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 Com-
merce Commission, and a copy thereof being served upon the president,
general manager, or general superintendent of such carrier, shall be obliga-
tory, 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 regulations 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, regulations, 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 in-
structions shall be approved by the Interstate Commerce Commission before
they take effect.

§ 6. [Duty of Inspectors—Appeals from Decision of Inspectors. |
—It shall be the duty of each inspector to become familiar, so far as practi-
cable, with the condition of each locomotive boiler ordinarily housed or re-
730 BOILER INSPECTION ACT.

paired in his district, 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 inspector shall make such personal inspection of the loco-
motive 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 intervals. His first duty shall be to see that the carriers make
inspections in accordance with the rules and regulations established or ap-
proved by the Interstate Commerce Commission, and that carriers repair
the defects which such inspections disclose before the boiler or boilers or
appurtenances 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 officer or employee, a duplicate of the report of each in-
spection required by such rules and regulations, and shall also file with such
inspector, under the oath of the proper officer or employee, a report showing
the repair of the defects disclosed by the inspection. The rules and regula-
tions hereinbefore provided for shall prescribe the time at which such re-
ports shall be made.- Whenever any district inspector shall, in the perform-
ance of his duty, find any locomotive boiler or apparatus pertaining thereto
not conforming to the requirements 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 telegraph or by letter to have said boiler reexamined,
and upon receipt of the appeal from the inspector’s decision, the chief in-
spector shall assign one of the assistant chief inspectors or any district in-
spector other than the one from whose decision the appeal is taken to re-
examine and inspect said boiler within fifteen days from date of notice. If
upon such reexamination the boiler is found in serviceable condition, the
chief inspector shall immediately notify the carrier in writing, whereupon
such boiler may be put into service without further delay; but if the reexam-
ination of said boiler sustains the decision of the district inspector, the chief
inspector shall at once notify the carrier owning or operating such loco-
motive 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 serv-
iceable condition and authorize the same to be operated: Provided further,
That pending either appeal the requirements of the inspector shall be ef-
fective.
TEXT OF ACT. 731

§ 7. [Reports of Chief Inspector.]—The chief inspector shall make
an annual report to the Interstate Commerce Commission of the work done
during the year, and shall make such recommendations for the betterment
of the services as he may desire.

§ 8. [Reports of Accidents by Carrier—Investigation by Inspect-
ors—Preservation of Parts by Carrier—Reports on Investigation. |
—In the case of accident resulting from failure from any cause of a locomo-
tive 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 loco-
motive is disabled to the extent that it cannot 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 or 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.

[Reports to Interstate Commerce Commission—Making Public—
Use in Damage Suits.]—The Interstate Commerce Commission may 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 investiga-
tion.

§ 9. [Liability for Penalty—Amount—Party to Sue—Jurisdiction
—Venue—Duty of United States Attorney to Sue.—Any common car-
rier 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 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, respect-
ively, 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.
732 BOILER INSPECTION ACT.

§ 10. [Appropriation to Carry Out Act.]—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.

Approved, Feb. 17, 1911.

AMENDMENT oF 1915.

Amendment of Act of March 4, 1915.

An Act to amend an Act entitled “An Act to promote the safety of employ-
ees and travelers upon railroads by compelling common carriers engaged
in interstate commerce to equip their locomotives with safe and suitable
boilers and appurtenances thereto,” approved February seventeenth,
nineteen hundred and eleven.

§ 1. [Act Extended to All Parts of Locomotive Including Tender. |
—That § 2 of the Act entitled “An Act to promote the safety of employees
and travelers upon railroads by compelling common carriers engaged in in-
terstate commerce to equip their locomotives with safe and suitable boilers
and appurtenances thereto,’ approved February seventeenth, nineteen hun-
dred and eleven, shall apply to and include the entire locomotive and tender
and all parts and appurtenances thereof.

§ 2. [Powers and Duties of Inspectors Enlarged to Embrace Ex-
tension of Act.]|—-That the chief inspector and the two assistant chief in-
spectors, together with all the district inspectors, appointed under the Act
of February seventeenth, nineteen hundred and eleven, shall inspect and
shall have the same powers and duties with respect to all the parts and
appurtenances of the locomotive and tender that they now have with respect
to the boiler of a locomotive and the appurtenances thereof, and the said
Act of February seventeenth, nineteen hundred and eleven, shall apply to
and include the entire locomotive and tender and all their parts with the
same force and effect as it now applies to locomotive boilers and their ap-
purtenances. That upon the passage of this Act all inspectors and appli-
cants for the position of inspector shall be examined touching their quali-
fications and fitness with respect to the additional duties imposed by this
Act.

§ 3. [Not to Effect Prior Act.]—That nothing in this Act shall be held
to alter, amend, change, repeal, or modify any other Act of Congress than
the said Act of February seventeenth, nineteen hundred and eleven, to which
reference is herein specifically made, or any order of the Interstate Com-
merce Commission promulgated under the safety appliance Act of March
second, eighteen hundred and ninety-three, and supplemental Acts.

§ 4. When Effective.—That this Act shall take effect six months after
its passage, except as otherwise herein provided.
Appendix E

ASH PAN ACT.

Text or Acts.
Act of May 30, 1908, 35 Stat. at. L. 476, ch. 225.

§ 1. [When Effective—To Whom Applicable—Type of Pan Re-
quired.]—That on and after the first day of January, nineteen hundred
and ten, it shall be unlawful for any common carrier engaged in interstate
or foreign commerce by railroad 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 employee going under
such locomotive.

§ 2. [Application to Carriers in Territories and District of Colum-
bia. ]—That on and after the first day of January, nineteen hundred and
ten, it shall be unlawful for any common carrier by railroad in any Terri-
tory of the United States or 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 employee going under such locomotive.

§ 3. [Penal Liability—How Recovered—Jurisdiction and Venue—
Duty to Institute Suit—Duty of Interstate Commerce Commission
to Lodge Information.]—That any such common carrier using any loco-
motive 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 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 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 violation as may come
to its knowledge.

§ 4, [Duty of Interstate Commerce Commission to Enforce. ]—
That it shall be the duty of the Interstate Commerce Commission to enforce
the provisions of this Act, and all powers heretofore granted to said Com- .
mission are hereby extended to it for the purpose of the enforcement of this”

Act.
733
734 ASH PAN ACT.

§ 5. [Common Carrier, as Including Receivers.]|—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.

§ 6. [Certain Locomotives Exempt.]—That nothing in this Act con-
tained shall apply to any locomotive upon which, by reason of the use of
oil, electricity, or other such agency, an ash pan is not necessary.
Index

ACCIDENT

See “Negligence,” “Res Ipsa
Loquitur.”
Defined, p. 725.
Proof of as negligence, 331.
When employer in exclusive con-
trol, p. 333.

ACTIONS

See “Limitations.”
Amendment introducing new action:
See “Amendments;” “Limita-
tions.”
Aider by plea or answer, p. 287.
Changes in party plaintiff, p. 207.
In general, pp. 573-575.
Amendment of 1910:
Confers no new cause of, p. 195.
Beneficiaries, necessity of depend-
ency, p. 221.
Character of, determined by state or
federal law, pp. 36, 262.
Consolidation for trial, p. 267.
Damages:
See “Damages.”
All recovered in one action, p.
365.
Recoverable for death, p. 364.
Recoverable for personal inju-
ries, p. 364.
Election of remedies, pp. 265-267.
Engagement in interstate commerce,
p. 17.
Failure to state:
Dismissal on appeal, p. 437.
Plaintiff improper party, p. 202.
Want of dependent beneficiaries,
p. 225.
Federal law supreme, p. 35.
General nature, pp. 190-193.
Hours of Service Act:
See “Hours of Service Act.”
Nature of proceedings, p. 646.
Joinder of, p. 288.
Stating case under state, federal
and common law, pp. 254-255.
Under federal and state law, p.
272.
Limitation of, pp. 230-232.
As extended by subsequent stat-
ute, p. 35.
Lis pendens, p. 302.
Notice precedent to suit, pp. 55-56.
Parties, pp. 268-269:
Adoption of proceedings, p. 208.
Amendment to affect, p. 205.
Ancillary administrator, p. 213.
Beneficiaries’ right to sue, p. 200.
Change in as setting up new ac-
tion, p. 206.
Changing after judgment, p. 208.

ACTIONS, cont'd.

Parties, cont'd.

Effect when improper, p. 202.

Excludes state laws, pp. 201, 203.

Misjoinder, p. 269.

Necessity of appointment of ad-
munistrator, p. 199.

Next of kin cannot maintain, p.
202.

Objections and waivers, pp. 213-
elas

Personal representative is proper,
p. 267.

Personal representative only may
sue, p. 201.

Personal representative’s right to
sue in other state, pp. 211-213.

Statutory designation controls, p.
202.

Under Safety Appliance Act, p.
553.

Widow cannot be, p. 267.

Pleading under different laws, p. 281.

Recovery:
Death and damages to be in
one, p. 192.
Election between not required,
p. 194.

Pecuniary loss and pain and suf-
fering in same action, p. 194.
Prior, under state law, as res ad-
judicata, p. 209.
Revival:
See “Revival.”
Not for benefit of estate, p. 194.
Sufficiency of petition, p. 193.
When brought by committee of
insane party, p. 193.
When brought by employee in-
jured, p. 193.
Safety Appliance Act:
Nature of proceedings for pen-
alty, pp. 551-553.
Survival:
See “Survival.”
At common law, p. 191.
Injuries to employee under orig-
inal act, p. 190.
In name of personal representa-

tive, p. 201.

Length of life after injury, pp.
196-197.

Length of time for employee to
sue, p. 197.

Limitation to instantaneous
death, pp. 195, 197.

Question for jury, p. 197.

Question of procedure, pp. 191,
264.

Recourse to state statutes, p. 191.
736

ACTIONS, contd.
Survival, cont'd.

Sole purpose to provide for sur-
vival, p. 192.
Under amendment of 1910, p. 365.
Under original act, p. 191, 364.
Transitory:
Under Safety Appliance Act, p.
555.
Under amendment of 1910:
Of beneficiaries as independent
of injured employee, p. 198.
Recovery for employee’s pain
and suffering granted, p. 198.
Under original liability act:
Beneficiaries’ right of, independ-
ent and distinct, p. 192.
Survival provided for by act of
1910, p. 192.
Under relief contract:
After institution of suit for in-
juries, p. 58.
Giving release precedent to ac-
tion, p. 58.
Right to bring action, p. 58.
Venue:
See “Venue.”
Waiver of venue, p. 261.

ACT OF GOD

Apportionment of damages when
concurring with negligence of de-
fendant, p. 141.

Defined, p. 725.

Excuse for firemen employed over-
time, p. 526.

Liability when defendant’s  negli-
gence concurs with, p. 140.
Unprecedented storm, p. 642.
ACT OF 1906
Assumption of risk abolished when,
p. 172.

Constitutionality, p. 27.

Reason of unconstitutionality, p. 14.

Repeal by subsequent act, p. 655.

Text of act, p. 653.

Valid as to District of Columbia and
territories, pp. 7, 27.

ACT OF 1908

Repealing prior act, p. 655.
Text of act, p. 654.

ADMIRALTY

Jurisdiction of federal courts in, p.
235.

ADMINISTRATION

Necessity of, to secure appointment
of personal representative, p. 199,

Right to when no other assets of es-
taté, p. 199.

Venue of proceedings, p. 201.

INDEX.

ADMINISTRATOR

See “Personal Representative.”
Commission on recovery, p. 386.
Evidence to show appointment, p.
310.

Necessity of appointment for sole pur-
pose of suit, p. 200.

Refusal of state court to appoint, p.
238.

Right of ancillary to sue, p. 213.

AGENTS

Liability of railroad for negligence
of, p. 142.

AGGREGATE SERVICE

Distinct from continuous, pp. 629-631.

Hours for rest of employees in, p.
724.

Resting during work, p. 629.

Statutory provisions, p. 721.

AIR BRAKES

See “Hand Brakes,” “Safety Ap-
pliance Act.”
Cars with defective brakes, p. 486.

Employee connecting as’ coupling
cars, 504. :

Hand brakes used in emergency, p.
488.

Insufficiency of, as negligence, p. 160.

Liability when full percentage used,
p. 486.

Negligence of application in emer-
gency, p. 180.

Number of violations from failure to
use, p. 596.

Orders fixing percentage, pp. 480, 663.

Requirements under Safety Appliance
Act, p. 480.

Statutory provisions, p. 657, 659.

Trains to be equipped, p. 482.

Use on all cars, p. 486.

ALIENS
Right of, to recover, p. 229.
AMENDMENTS
See “Declaration, Complaint or
; Petition;” “Limitation of Ac-

tions;” “Pleadings.”
Application for removal after, p. 558.
As federal controversy, pp. 435, 603.
Changing party plaintiff, p. 205:
As new action, p. 206.
Conforming to variations in proof, p.
339. :
Continuance of trial after allowing,
p. 405.
Instructions on issues eliminated by,
p. 350,
Limitation of right to amend, p. 206.
Not to set up new cause of action,
p. 206,
On appeal, p. 294.
INDEX. 737

AMENDMENTS, cont'd.

Remand to permit, p. 439.
Removal when federal
shown by, p. 557.
Right to make by stipulation, p. 650.
Showing manner of, on appeal, p.
598. :
Under Safety Appliance Act:
After limitations, pp. 573-575.
Waiver of objections to, pp. 573-575.
Waiver of ruling requiring, p. 650.

question

ANSWER

See “Plea or Answer.”

APPEAL AND ERROR

Amendment of pleading on appeal, p.
294,
Amendment on remand, p. 294.
Assignments of error:
Abandonment by failure to urge,
p. 415.
Confined to questions subject of
review, p. 415.
Failure to show interstate com-
merce, p. 414.
Numerous assignments not ap-
proved, p. 415.
On jurisdiction of court, p. 414.
Plain error when noted, p. 412.
Time of, p. 415.
Bill of exceptions:
Designation where error found,

p. 414.

Necessity to show prejudicial er-
ror, p. 416.

Separate bill not necessary, p.

. 415. :

Showing grounds of objection, p.
415.

Sufficiency of, p. 597.

Changing theory on appeal:

Asking instruction as binding to
theory, p. 422.

Contributory negligence as issue,
p. 421.

Estoppel by advancing or admit-
ting theory below, p. 421.

Law of case, p. 421.

Not advanced on trial, p. 45.

Decision reviewable:

Judgment remanding cause, pp.
560-561.
Denial of review as federal question,
p. 436.

Exceptions and objections:
Enlargement on appeal, p. 412.
Failure to object to removal, p.

57,
Joinder of causes of action, p. 290.
Must be to ruling of court, p. 411.
Necessity of, below, p. 651.
Objections not raised below, pp.
32, 412.
State practice regarding ‘not con-
trolling in federal court, p. 411.

Fed Act—47

APPEAL AND ERROR, cout’d.

Exceptions and objections, cont'd.

Sufficiency to assign error, p. 341.

To jurisdiction of court, p. 411.

Waiver by failure to submit in-

structions, p. 414.
Extent of review, pp. 428, 436, 652.
Federal question:

See “Federal Controversy.”
Former opinion as law of case, p. 424.
Identification of evidence with bill of

exceptions, p. 416.
Instructions:
Diminishing damages when erro-
neous, 392.
Refusal of, p. 388.
Interest on judgment, p. 395.
Judgment on appeal:
Affirmance in federal supreme
court, p. 438.
Affirming on certiorari, p. 604.
Damages when prosecuted for
delay, p. 438.
Dismissal in
court, p. 437.
Dismissal without prejudice to
suit under state law, p. 210.
Extent binding on lower court,
p. 604.
Granting partial new trial, p. 439.
Mandate to require compliance,
p. 604.
Penalty on affirmance, p. 438.
Questions concluded by decision,
p. 432.
Reinstatement of reversed judg-
ment, p. 438.
Remand for trial under proper
law, p. 439.
Remand to permit amendment, p.
439.
Requiring remittitur and affirm-
ance, pp. 440, 441.
Reversal for insufficiency of pe-
tition for revival, p. 194.
Parties:
Changing on appeal, p. 423.
Curing defect by amendment of
writ, p. 423,
One only of two, p. 423.
“Plain Error’ when noted, p. 412.
Prejudicial error:
Admission of evidence, pp. 317,
416.
Admitting evidence over general
objection, p. 341.
Admitting report under Boiler
Inspection Act, p. 342.
Bill of exceptions to show, p. 416.
Contributory negligence called
assumed risk, pp. 170, 418.
Excluding evidence, p. 416.
Failure to require disclosure, p.
417.
Failure to state action under act,
p. 418.

federal supreme
738

APPEAL AND ERROR, cont'd.
Prejudicial error, cont'd.
Finding on two grounds, liability
under one, p. 418.
General hypothetical charge, p.
352.
In giving instructions, pp. 349,
354, 359.
Instructions on damages, p. 393.
Necessity of, pp. 416, 428.
Omission of issue, p. 417.
Presumption of prejudice, p. 42h
Refusal of instructions, p. 417.
Refusal of view by jury, p. 416.
Requiring election, p. 416.
Return of verdict by less than
twelve, p. 421.
Rulings on assumption of risk, p.

417.
Rulings on contributory negli-
gence, p. 417.

Striking pleading, p. 417.

Submitting question of law to
jury, pp. 351, 420.

Trial under law not applicable,
pp. 46, 354, 418-421,

Wrong reason for ruling, p. 416.

Presentation of question below, pp.

412, 436, 597.
Claim and denial of federal
right, p. 429.
Presumption:
Inadequate damages result of

contributory negligence, p. 423.

Issue favorable to prevailing party,
p. 422.

Of engagement in intrastate com-
merce, p. 423.

Of regularity below, p. 597.

Questions for review:

Decisions in discretion of trial
court, p. 425.

Excessive damages, pp. 396, 425.
Failure to show engagement in
interstate commerce, p. 412.

Findings on evidence, p. 425.
Frivolous contentions, p. 428.
Impairment by agreement of

parties, p. 426.
In federal courts without juries,
p. 598.

Law to govern case, p. 425.
Plain error, p. 412.
Refusal of new trial, p. 425.
Right of plaintiff to recover, p.
p. 412.
Sufficiency of record for appeal, p.
597.
Showing manner of amendment
of pleading, p. 598.
To federal supreme court:
Cases reviewable, p. 599.
Claim of federal right, p. 600.
Claim of federal right, what con-
stitutes, p. 601.

INDEX.

APPEAL AND ERROR, coni’d.
To federal supreme court, cont'd.
Consideration of evidence, p.
437.
Excessive verdict, p. 437.
Extent of review on appeal, pp.
427, 428, 436.
Federal controversy presented
below, p. 436.
Federal controversy, what con-
stitutes, pp. 602, 603.
From circuit court of appeals, p.
427,
From district court, p. 426.
From District of Columbia, p. 428.
From state court of last resort,
p. 429.
Matters of procedure, p. 436.
Next of kin, p. 437.
Questions of general law, p. 436.
Under Safety Appliance Act:
Judgments on appeal, p. 603.
Review of judgment for penalties,
p. 598.
Writ of error:
Designation of return day, p. 414.

APPLIANCES

See “Brakes,” “Cars,” “Coup-
lers,” “Safety Appliance Act,”
“Tools and Appliances.”

Designation by Interstate Com-
merce Commission, p. 504.
Order of Interstate Commerce Com-

mission requiring, p. 664.

Additional time to comply with,

pp. 698, 700.

Plates illustrating, pp. 703-720.
Time for compliance with orders, p.
664.

ARGUMENTS OF COUNSEL

Ability of defendant to pay, p. 406.

Discretion of judge in permitting, p
406.

Failure to call witnesses, p. 406.

Inferences from failure to call wit-
nesses, p. 346.

Objections, time of, p. 407.

Restraint of wayward children by fa-
ther, p. 406.

Stating facts not in evidence, p. 407.

ASH PAN ACT
Text of act, p. 733.

ASH PITS

Employee cleaning as engaged in
interstate commerce, p. 102.

Expert evidence on construction, p.
314.

ASSIGNMENTS OF ERROR
See “Appeal and Error.”
INDEX. 739

ASSUMPTION OF RISK

Abolished:
By Safety Appliance Act, p. 534.
Not violation of due process
clause, p. 30.
Statute violated as proximate
cause of injury, pp. 173, 647.
When federal statute violated, p.
361.
Acts done according to rules, p. 178.
Acts in emergency caused by negli-
gence, p. 180.
Appreciation of danger by employee:
Removing hand car from track
in front of train, p. 182.
Using lubricator with tubular
glasses, p. 182.
As defense, p. 301.
Availability of evidence of plain-
tiff showing, p. 300.
Burden of proof, p. 306.
Called contributory negligence when
not prejudicial, p. 418.
Common law rule of:

Not applicable under
conditions, p. 13.
Concurrent cause of injury:
As question for jury, p. 186.

Risk of one only assumed, p. 186.
Continuance in employment in reli-
ance on promise to repair, p. 170.

modern

Contributory negligence not to be

called, p. 535.
Defect in engine just out of repair

shop, p. 180.
Denial of defense as constitutional,
p. 443.

Determined as under original com-
mon law, p. 174.

Determined by state law, when, p. 42.
Distinguished from contributory neg-
ligence, pp. 167-170, 537.

Necessity of distinction when
one is barred and the other
not, pp. 167-170.
Distinguished from fellow servant
rule, p. 145.
Duty of employee to discover dan-
ger, p. 183.
Effect of knowledge by employee, pp.
180-186.
Extent and application of doctrine,
pp. 177-189. °
Failure to protect train by signals,
p. 169.
Going between cars, p. 178.
Instructions on:
As at common law, p. 360.
Defect cured by other instruc-
tions, p. 361.
Distinguishing ordinary from ex-
traordinary dangers, p. 362.
Modified by state statutes, p. 360.
Request as waiver of objection,
p. 363.

ASSUMPTION OF RISK, cont'd.

Instructions on, cont'd.

Request too general in terms, p.
363.

When not imposed as a defense,
p. 861;

Issue presumed favorable to plaintiff,
when, p. 422.

Knowledge of employee:

Boarding fast moving train, p.
187.

Continuance in employment
without objection, p. 169.

Defects in cars being set aside
for repair, p. 536.

Insufficiency of light to conduct
switching, p. 187.

Nearness of mail crane to track,
p. 187.

Of defect, pp. 300, 361.

Open pit in roundhouse, p. 187.

Question for jury, p. 187.

Sufficiency of clearance of post
in tunnel, p. 187.

Using defective water gauge, p.
169.

Necessity to plead, p. 300.
Negativing as defense, p. 287.
Negligence of employer:
Absence of guard glass on water
gauge, p. 184.
Absence of knowledge of failure
of cars to clear track, p. 189.
As matter of law, p. 189.
Continuance in employment
without objection, p. 181.
Continuance in employment with
knowledge and appreciation of
danger, p. 183.

Defect in water column, p. 189.

Defective roadbed, p. 184.

Effect of complaint and assurance
of safety or promise to repair,
p. 185.

Employee with knowledge as-
sumes, p. 181.

High tension electric line, p. 180.

Insufficient force for work, p. 185.

Isolated act of negligence, p. 183.

Knowledge of closeness of switch
to track, p. 181.

Knowledge of danger by em-
ployee, p. 189.

Knowledge of danger of old style
lubricator, p. 181.

Knowledge of employee when
presumed, p. 182.

Knowledge of usual negligence
of co-servants, p. 181.

Knowledge of violation of rules,
p. 181.

Knowledge of width of engine
entering roundhouse, p. 181.
Lifting heavy box without ask-

ing for assistance, p. 189.
740 INDEX.

ASSUMPTION OF RISK, cont'd.
Negligence of employer, cont'd.

Loose tools on roundhouse floor,
p. 184.

Not precluded by statute, p. 184.

Obstructions near track, p. 185.

Of standpipe too close to track,
p. 182,

Open pit in railway shop, p. 184.

Operation of trains or engines, p.
180.

Opportunity to appreciate dan-
ger, Dp. 188;

Ordinary movement of train, p.
188.

Presumption that employer not
negligent, p. 183.

Question for jury, p. 188.

Remaining in employment on
promise to repair, p. 188.

Remaining in employment with
knowledge, p. 188.

Remaining in service with knowl-
edge and without complaint, p.
188.

Splinters from spike mauls, p.
184.

Tracks constructed preventing
view ahead, p. 185.

Tracks too close together, p.
185.

Under contract to care for self,
under known and existing dan-
gers, p. 182.

Using a road engine for switch-
ing, p. 188.

Negligence of fellow servants:
Application to, pp. 144, 180.
Unnecessary violence in stopping

train, p. 147.
Not available when statute violated,
p. 172.

Object in abolishing:

Under Safety Appliance Act, p.
536.

Ordinary risks defined, p. 178.

Pleading:

As estoppel to rely on federal
act, p. 298. ,

Petition held to show, p. 284.

Under Safety Appliance Act, p.
571.

Risks inherent from work, p. 178.
Removing defective pile from

bridge, p. 178.

Trackwalker, p. 178.

Rulings on, when not prejudicial, p.

417.

Simple tools:

Steel chisel as, p. 179.

Statement of rule, p. 177.

State statutes affecting, p. 360.

State statutes superseded, p. 173.

Statutory provisions, pp. 655, 659.

Sufficiency of pleading to show, p.

300.

ASSUMPTION OF RISK, cont'd.

Supremacy of federal laws defining
common law as to, p. 175.
Violation of rules as, pp. 169, 300.
Violation of statute as abolishing: +
Must be proximate cause of in-
jury, p. 173.
Statute violated must be federal,
p. 176.
Want of safe place does not excuse
reasonable care, p. 122.
When available, p. 170-173.

BAGGAGEMEN

On trains within Hours of Service
Law, p. 724.

BARGES

See “Boats.”
Closeness of tracks on:

As negligence, p. 126.

Not a defect, p. 135.

BENEFICIARIES

Aliens right to recover, p. 229.
Alleging existence of, p. 253.
Amendment of pleading to show ex-
istence of, p. 294.
Amendment to show pecuniary loss,
p. 439. :
Apportionment of damages among, p.
384, 385.
Burden of proof:
Existence, p. 305.
Non-existence of previous class,
p. 306.
Children:
Invalid child, p. 347.
Loss peculiar to, p. 378.
Classes of:
Existence of one as excluding
other, p. 218.
Damages to:
Pecuniary loss, p. 373.
Surviving parents, p. 380.
Dependency of:
Beneficiaries of first and second
class, p. 221.
Defined, pp. 222-223.
Next of kin, p. 222.
Parents, p. 222.
Different under state and federal law,
p. 10.
Effect of change to representative ca-
pacity, p. 206.
Evidence held to show dependency, p.
223.
Evidence of damages to, p. 320.
Existence of, jurisdictional, p. 225.
Federal act determines, p. 36.
Necessity of alleging pecuniary loss,
Pp. 226.
Necessity of dependency:
Of beneficiaries of first and sec-
ond class, p. 219.
Of beneficiaries of third class, p.
219.
INDEX. 741

BENEFICIARIES, cont'd. BOILER INSPECTION ACT

Next of kin as, p. 223.

Determined by state law, p. 228.
Parents:

Pecuniary loss to, p. 382.
Pecuniary benefit, pp. 224, 374.
Pleading:

Existence of, p. 282.

Necessity to show, p. 225.

Sufficiency of designation, p. 282.
Presumption of existence of, p. 225.
Recovery:

Not for equal benefit, p. 224.

Not to be for estate, p. 192.

Of all damages in same action,

p, 365,
Recovery under amendment of 1910.

For pain and suffering of de-

ceased, p. 198.
Independent action for pecuniary
loss, p. 198.
Right of congress to designate:
: Cortrary to state law, p. 29.
Right te maintain action in own
name, pp. 200, 206.
Separation and divorce of parties, p.
204,
Showing existence of, in pleading, p
340.
Statute designating controls, p. 217.
Statutory provisions, pp. 653, 654.
Survival of action to, when death in-
stantaneous, p. 195.
To whom action given, p. 217.
When right exists under local law,
p. 200.

BILL OF EXCEPTIONS

Designation in brief where error
found, p. 414.
Identification of evidence with, p. 416.
Reducing evidence to narrative form,
p. 597.
Separate bill not necessary, p. 415.
Showing grounds of objection, p. 415.
Showing prejudice to defendant:
In admission of testimony, p. 416.
In refusing instructions, p. 416.

BLOCK SIGNALS
See “Signals.”
Passing without knowledge of indi-
cations as negligence, p. 160.

BOATS

As adjunct to transportation by rail,
‘Dp. Lm:
Employees on as engaged in inter-
state commerce, p. 108.
Preparing cars for shipment by,
p. 94.
Removing local cars, p. 108.
Unloading coal from cars to boat,
p. 108.
Waiting for work, p. 107.
Used in connection ‘with railroads,
p. 16.

Effect on prior judgment, p. 727.

Effect on state law, p. 727.

“Employee” defined, p. 727.

Nature of duty imposed, Pp. 141, 727.

“Railroad” defined, p. 727

Reliance on by plaintiff mat engaged
in interstate commerce, p. 142.

Reports of accidents as evidence, p.
342,

Text of act, p. 727.

BOILERS

Assumption of risk:
Appreciation of danger in use of
old style lubricator, p. 182.

BRAKES

See “Air Brakes,” “Hand Brakes.”

BRIDGES

Admissibility of evidence:
Showing origin of fire on, p. 313.
Assumption of risk:
From defect while being repaired,
p. 178.
Of electric wires passing under,
p. 182.
Care required in construction and
maintenance, p. 121. :
Duty to place guard rail on, p. 136.
Failure to warn employee of low,
p. 125.
Liability for negligence of engineer
of crew, p. 129.
Liability of crew knocking employee
off trestle, p. 131.
Proof of collapse as showing negli-
gence, p. 328.
Repairing as engagement in inter-
State commerce, p. 279,
Too close to track when constructed
by public authority, p. 137.
Working on as interstate commerce:
Carrying bolts or rivets to repair,
« WO:
Constructing on cut-off, p. 76.
Excavating for new bridge, p. 76.
Removing bolts from timber, p.

72.
Removing rubbish from abut-
ment, p. 72.
Repairing, pp. 72, 279.
BRIEFS

Assignments of error:

Engagement in interstate com-

merce, p. 414.

Jurisdiction of court, p. 414.

Designation where error found, p.
414.

Waiver of error by failure to assign,
p. 415,

BURDEN OF PROOF

As rule of procedure, pp. 304, 305.
Assumption of risk, p. 306.
742

BURDEN OF PROOF, cont'd.

Contributory negligence, pp. 304, 306.
Evidence of plaintiff showing,
a07.
Defenses:
Under Safety Appliance Act, p.
588.
Existence of beneficiaries, pp. 305, 306.
Interstate commerce, p. 303.
Engine inflicting injury, p. 304.
Failure to deny allegation, p. 588.
Sufficiency of evidence, p. 325.
Law applicable, p. 306.
Law pleaded, p. 303.
Negligence of defendant, p. 304.
Under Safety Appliance Act, p.
586.
Relation of employer and employee,
p. 303,
Scope of employment, p. 303.
State laws:
Changing, p. 263.
Creating presumption, p. 304.
Shifting burden, p. 304.
Sufficiency of evidence to sustain:
Conjectural proof, p. 588.
Under Hours of Service Act, p. 649.
Under rule of res ipsa loquitur, p. 330.
Under Safety Appliance Act:
Preponderance of evidence only
required, p. 583.
To recover penalty, p. 583.

CABOOSES
See “Cars.”
Safety appliances applicable to, p.
504.
CANAL ZONE
Statutory provisions
654.

CARE AND DILIGENCE

regarding, op.

See “Hours of Service Act,”
“Negligence,” “Safety Appli-
ance Act.”

As defense to Safety Appliance Act,
p. 455. ;
CARRIERS

See “Common Carrier,” “Em-
ployer and Employee,” “Rail-
roads.”

CARS
Air brake equipment:

Defective brakes, Pi 486.

Liability when full percentage
used, p. 486.

Movements between yards, p.

484,
Movements outside yards, p. 484.
Statutory provisions, p. 657.
Switching, p. 483.
Use on all, p. 486.

INDEX.

CARS, cont'd.
Assumption of risk from defects in:
When one or two concurring
causes, p. 186.
Assumption of risk from manner of
loading:
Question for jury, p. 188.
Causing injury:
Need not be engaged in inter-
state commerce, p. 279.
Cleaning stencils for, as engagement
in interstate commerce, p. 106.
Contributory negligence from going
between:
Question for jury, p. 541.
Question of law, p. 543.

Coupled to haul long commodities:
Statutory provisions, p. 661.

Couplers:

See “Coupler.”

Failure to couple on impact, p.
501.

Other appliances preventing op-
eration, p. 496.

Couplers required on:

Embraces both coupling and un-
coupling, p. 496.

Extends to preparation, p. 496.

To keep employees from going
between, p. 496.

Coupling or uncoupling:

When connecting air hose, p. 504.

Defective:

Containing intrastate shipment, p.
474,

Defective condition of, as negligence:
Absence of grab irons, p. 132.
Defect in brake step, p. 132.
Defect in door, p. 132.
Handholds improperly secured,

p. 132.
Improper loading, p. 132.
Platform knocked off, p. 132.
Tops not securely fastened, p. 132.

Defective couplers:

Effort of employee to operate, p.

502.
Load preventing movement of
lever, p. 503.

New and hard to work, p. 502.
One of two levers defective, p.
501.
Other appliances preventing op-
eration, p. 503.
Drawbars:
Applicable to, p. 508.
Duty to maintain height, p. 510.
Height required, p. 507.
Duty to keep in repair, p. 457.
Duty to warn employee of movement,
p. 122.
Empty:
Necessity of equipment with
couplers, p. 494.
When engaged in interstate com-
merce, pp. 64, 88.
INDEX. 743

CARS, cont'd.

Engaged in interstate cammerce:
When in storage, p. 100.
When left by interstate train, p.
100.
When on side track for repairs,
p. 100.

Equipment required:

Foreign cars, p. 478.
Interchangeable, p. 479.
When switching, p. 491.

Equipment with couplers:

On end of each car, p. 491.
Test of sufficiency, p. 494.
Use with adjacent cars, p. 493.

Evidence to show interstate com-

merce:
Destinations written in chalk, p.
325.
Excepted from Safety Appliance Act:
Right of states to regulate ap-
pliances, p. 460.
Statutory provisions as to, p. 658.

Extraordinary and unusual movement
as negligence, p. 129.

Failure to protect by flag when in-
specting as sole cause of injury, p.
159. .

Failure to use safety appliances as
contributory negligence, p. 545.

Failure to warn employee between as
negligence, p. 125.

Going between:

As assumption of risk, p. 178.

As contributory negligence, pp.
160, 164.

Assumption of risk when negli-
gently operated, p. 179.

Necessity of, when existent, p.
497,

Hand brakes on combined cars, p.
503.

Handholds and grab irons on:

Object, number and location, p.
504.
Hauling to repair: :
Containing live stock or perish-
able freight, p. 521.
Defects developed in transit, pp.
523-525.
Defects repairable where found,
pp. 523-525.
Movement with commercial cars,
pp. 518-520.
Statutory provisions, pp. 661, 662.
Under amendment of 1910, p. 520.
Using chains, pp. 521, 525.
Improper loading:
Admissibility of
show, p. 313. a

Inspecting as engagement in inter-
state commerce, p. 105.

Ladders on box cars, p. 529.

Loading as engagement in interstate

commerce, p. 104.

evidence to

CARS, cont'd.

Loading as engagement in interstate
commerce, cont'd.

Directing unloading, p. 115.
Turning aside to other work, p.
i5.

Unloading paint for storage, p.
105.

Locomotives as, p. 489.
Manner of poling as contributory
negligence, p. 165.

Manner of riding as contributory neg-
ligence, p. 165.

Movement in violation of rules as
negligence, p. 123.

Moving as proximate cause of injury,
p. 139.

Moving on repair track as negligence,
p. 125.

Negligence in movement of, p. 122.
Plates illustrating appliances, pp.
703-720.
Repairing as engagement in interstate
commerce:
In shops, pp. 78, 79.
In transit, pp. 82-84.
Set aside for, p. 83.
Shovel car:
As requiring equipment, p. 490.
Sleeping in, on side track, as en-
gagement in interstate commerce,
p. 115,
Switching as engagement in inter-
state commerce, pp. 94, 107, 280.
At intermediate points on run, p.
94.

Coal, for carrier’s use, p. 92.

Distributing from interstate
train, p. 99.

Empties to be replaced by inter-
state cars, p. 99.

Empty cars between local points,
p. 97.

For transportation by boat, p. 94.

Interstate cars, pp. 98, 99.

Interstate cars in yard, pp. 97, 99.

Interstate train at terminals, p. 96.

Intrastate car from interstate
train, p. 95.

Intrastate cars but general em-
ployment in interstate com-
miérce, p. 38.

Intrastate cars in yard when next
service to be interstate, p. 97.

Setting switches for change in
work, p. 107.

To compose interstate train, pp.
93, 94,

To local point to be taken by
interstate train, p. 99.

Switching as use in interstate com-
merce, p. 471.

Switching in yard, duty of employee
to lookout for, p. 127.
744

CARS, cont'd.

Switching without warning as negli-
gence, p. 126.

Under Safety Appliance Act:
Movement on switches, p. 466.
Necessity of engagement in inter-

state commerce, p. 466.
Used in intrastate commerce, p.
466.

Use in interstate commerce:

After unloading shipment, p. 473.

At rest, p. 474.

Empties, p. 475.

Ending of use, p. 472.

Statutory provisions, p. 659.

Use with other cars therein, p.
473.

When set aside for repairs, p.
476.

Use of constituting negligence:

Failure to have coupled in mak-
ing emergency stop, p. 130.
Flying switches, p. 130.
Kicking cars, p. 130.
Unusual and extraordinary move-
ment, p. 130.
Violations from use of defective un-
der Safety Appliance Act, p. 594.

Want of equipment required:
Directing verdict, p. 593. /

Warning employee of close proximity

when on barge, p. 126.

When use in_ interstate

eeases, p. OY.

CASUALTY

See “Hours of Service Act.”
Death in family, p. 641.
Defined, p. 725.
Derailment of train, p. 641.
Sudden illness of dispatcher, p. 641.

commerce

CERTIORARI
Affirmance of judgments on, p. 604.
CHAINS
See “Cars,” “Safety Appliance
Act.”

Moving defective cars to repair with,
pp. 521, 523-525.

Use of as proximate cause of injury,
p. 532.

CHILDREN ‘

Amount of damages for, pp. 396-398.
Adult children, p. 379..
Afflicted child, p. 347.
Married children, p. 379.

Apportionment of damages

widow, p. 385.

Damages to:

Son by divorced wife, p. 224.
When married and not depend-
ent, p. 220. |

Foster child, recovery for death: of,

p. 229.

with

INDEX. |

CHILDREN, coni’d.
Necessity,to show dependency of, p.
221. ;
Pecuniary loss peculiar to, p. 379.
Invalid child, p. 321.
Loss of mother’s care, p. 379.
Loss of services of father, p. 373.

CLERKS

Engagement in interstate commerce:
Sealing cars in interstate train,
p. 100.
Taking numbers of cars in inter-
state train, p. 100.

COAL

Handling as engagement in interstate
commerce:
Cleaning up around bins, p. 92.
Hauling for carrier’s use, p. 91.
Loading engines with, p. 9%.
Placing in chutes, p. 93.
Switching cars of, for use
rier, p. 92.

COAL CHUTES

Employee cleaning up around:
‘As engaged in interstate com-
merce, p. 325.
Negligence in not having properly
balanced, p. 135.

COLLISION

Liability of railroad for, p. 131.
Proof of, as showing negligence, p.
328.

COMMERCE

Cars used in interstate:

See “Cars.”

Cars temporarily at rest, p. 474.

Containing intrastate shipment,
p. 474.

Empty cars, p. 475.

In transit waiting transfer or re-
turn, p. 82.

On interurban line, p. 476.

Set aside for repairs, p. 476.
Commingled service in intrastate,
and interstate, pp. 4, 84.
Federal law controls, p. 43.

Engagement in interstate:
Agency inflicting injury need not
be, pp. 5, 20, 62, 278.
Amendment of pleading to show,
p. 291.
Both partiés must be at time of
injury, pp. 17, 18, 27.
Question for jury, pp. 85, 107.
Same act of not essential, p. 19.
Test to determine, pp. 62, 71.'
Engagement in interstate by em-
ployee:
Altering machinery in
shop, p. 81.

of car-

work
INDEX. , 745

COMMERCE, cont'd.

' COMMERCE, cont'd.
Engagement in interstate by em-

ployee, cont'd.

Asleep in car on side track, p.
115,

Assisting in moving machinery
for shipment, p. 102.

Assisting to prepare engine to
go out, p. 89.

Baggageman going into express
car, p. 115,

Baggageman on interstate train,
p. 276.

Breaking up train at division
point, p. 99.

Bridge repairers removing bolts
from timber, p. 72.

Caretaker on dead engine in in-
terstate train, p. 85.

Caring for engines generally, p.
102.

Carrying bolts or rivets to repair

bridge, p. 70.

Change in indiscriminating work,
p. 108.

Change in work, employee while
setting switches, p. 107.

Change in work, next service
held question for jury, p. 107.

Changing hand signals to auto-
matic, p. 74.

Cleaning ash pit, p. 102.

Cleaning flues of engine, p. 94.

Cleaning stencils, p. 106. ~

Cleaning up around coal bins, pp.
92, 325.
Clerk sealing cars of interstate
train, p. 100.
Clerk taking numbers of cars of
interstate train, p. 100.

Conducting car between local
points, p. 86.

Conductor on way to take out
train, p. 115.

Consideration of past and future
service, p. 106.

Constructing bridge on cut-off,
p. 76.

Constructing new track, p. 77.

Constructing parallel tracks, p.
The

Constructing roundhouse and
freight sheds, p. 77.

Constructing tunnel, p. 76.

Cooling hot box, p. 89.

Coupling cars and air hose on
transfer track, p. 105.

Detective or watchman in yard,
p. 103.

Distinction between repair and
original construction, p. 68.
Distinction between use and re-
pair of instruments, p. 67.
Distributing cars rebilled from

intrastate points, p. 67.

Engagement in interstate by em-

ployee, cont'd.

Distributing cars to mines from
intrastate points, p. 87.

Engaged in both kinds of, p. 41.

Engaged in or assisting in trans-
portation, p. 84.

Enlarging roundhouse or repair-
ing shop, p. 74.

Excavating for abutment for new
bridge, p. 76.

Express agent removing package
from grounds to depot, p. 111.

Filling tender with coal, p. 89.

Finding drinxing cup, p. 89.

Fireman on interstate train, p.
277.

Gardner taking care of station
grounds, p. 104.

Gathering up discarded rails, p.
723

Going for mail, p. 115.

Going for orders, p. 106.

Going to boarding house, p. 116.

Going to depot to board train,
p. 112.

Going to general work, p. 111.

Going to or returning from work,
in general, pp. 111-116.

Going to pump water for trains,
p. 111.

Going to roundhouse for engine,
p. 90.

Handling interstate and intra-
state commerce at same time,
p. 84.

Hauling cars to local point to be
taken by interstate train, p. 99.

Hauling gravel to repair inter-
state road, p. 72.

Hauling water or coal, p. 91.

In action under Safety Appliance
Act, pp. 446, 529.

Indiscriminate service, p. 326,

Inspecting and oiling engine, p.
89.

Inspecting tracks, pp. 72, 73.

Inspecting train, pp. 90, 105.

Inspector assisting at wreck, p.
105.

Inspector disconnecting steam
hose on interstate train, p. 105.

Installing block signal system, p.
7%,

Interstate train but run between
intrastate points, p. 88.

Intrastate service when next
service interstate, p. 97.

Investigating accident, p. 579.

Joint employment by railroad
and another, p. 108.

Keeping track clear for interstate
train, p. 86.

Leaving place provided for ac-
commodation, p. 116.
746 2 INDEX.

COMMERCE, cont'd.
Engagement in interstate by em-

COMMERCE, coni’d.
Engagement in interstate by em-

ployee, cont'd.

Loading engine tenders, pp. 92,
326.

Loading interstate freight, p. 104.

Loading rails to repair track, pp.
104, 325.

Loading ties, p. 81.

Local employees; clerks; host-
lers; car-loaders; inspectors,
etc., pp. 100-106.

Machinist repairing switch en-
gines in yard, p. 79.

Making up train, p. 277.
Moving engine without cars be-
tween interstate points, p. 86.
Oiling and inspecting engine of

interstate train, p. 279.

On boat, p. 107.

On handcars, pp. 42, 70.

On interstate train, pp. 93, 325,
619.

On train carrying both kinds of
commerce, pp. 85, 279.

On work train, pp. 278, 620.
Operating handcar for upkeep
and repair of track, p. 70.

Operating steam shovel, p. 70.

Preparing engine for interstate
train, p. 88.

Preparing engine for trial trip,
p. 90.

Preparing engine to go out, p.
102.

Preparing ice for interstate train,
p. 88.

Preparing interstate trains to go
out, pp. 88-91.

Preparing material to repair in-
struments of interstate com-
merce, p. 81.

Presumption of, p. 326.

Question for jury, p. 327.

Removing coal from storage, p.
92. ‘

Removing old rails on interstate
road, p. 72.

Removing rubbish from bridge
abutment, p. 72.

Repairing boiler of wrecking
train, p. 81.

Repairing bridge on interstate
road, p. 279.

Repairing cars in shop, pp. 78, 79.

Repairing cars set aside for re-
pair, p. 83.

Repairing electric signals, p. 73.

Repairing engine between trips,
p. 83.

Repairing engine in roundhouse,
p. 79.

Repairing engine of work train,
> Bde

Resairine freight sheds and
roundhouses, p. 74.

ployee, coni’d.

Repairing instruments: of inter-
state commerce, pp. 66-68.

Repairing instruments used to
repair other instruments of in-
terstate commerce, p. 81.

Repairing pumphouse, p. 74.

Repairing switches in yards, p. 69.

Repairing telegraph line, p. 73.

Repairing tracks, bridges, etc.,
pp. 68-76.

Repairing tracks of interstate
road, pp. 69, 234, 280.

Repairing turntables, p. 69.

Riding on handcar to place for
work, p. 112.

Riding on train to place for work,
p. 112.

Right to give transfers to pas-
sengers across State line, p. 86.

Round trip, carrying interstate
commerce one way, p. 88.

Running engine from state to
state for repairs, p. 85.

Shoveling dirt between ties, p. 70.

Supplying materials for indis-
criminate use, p. 91.

Sweeping snow from switches, p.
69.

Switching car at terminal, p. 97.

Switching cars at points on run,
p. 94.

Switching cars both interstate
and intrastate, p. 98.

Switching cars for immediate
transportation, p. 326.

Switching cars for interstate
transportation by boat, p. 94.

Switching cars in storage, p. 100.

Switching cars in yards, pp. 97,
280.

Switching cars out of interstate
train, p. 96.

Switching cars placed on side
track for repairs, p. 100.

Switching cars, some interstate,
one employee on _ intrastate,
Dp. 98. .

Switching cars to make up train,
p. 93.

Switching defective car out of
interstate train, p. 99.

Switching empty cars between lo-
cal points, p. 97.

Switching empty cars to replace
by interstate, p. 99.

Switching empty car to return
to connecting carrier, p. 88.

Switching engine to attach to in-
terstate train, p. 89.

Switching engine to be placed in
roundhouse, p. 97.

Switching interstate cars, pp. 98,
438.
INDEX. 747

COMMERCE, cont'd.

Engagement in interstate by em-

ployee, cont'd.

Switching intrastate cars, p. 98.

Switching intrastate cars out of
interstate train, p. 94.

Switching local cars left by in-
terstate train, p. 100.

Switching or breaking up trains
at terminals, p. 96.

Switching train to regular place,
p. 97.

‘Time necessary for repairs as af-
fecting question, p. 79.

Transferring freight at interme-
diate points, p. 96. f

Turning aside during employ-
ment, pp. 111-116.

Unloading paint to be used on
cars, p. 105.

Unloading rails from car at des-
tination, p. 104.

Visiting saloon, p. 116.

Waiting to go on duty, pp. 111-
116.

Watchman at grade crossings, p.
103.

Watchman in yard, p. 325.

Wheeling coal to heat shop, p. 78.

Working for interstate road, p.
281.

Working in repair shops, p. 78.

Working on branch line, p. 280.

Working on interstate train be-
tween points in same _ state,
p. 96.

Working on intrastate train car-
rying interstate shipment, p. 87.

Working on vessels, boats, etc.,

p. 108.
Engagement in interstate by em-
ployer:
Agreement with connecting car-
riers, p. 468.

Carrying for itself, pp. 65, 470.

Carrying goods for express com-
pany, p. 469.

Carrying goods for other rail-
roads, p. 469. :

Carrying to intrastate points to
connecting carrier, p. 469.

Effect of intent to do so in near
future, p. 66.

Employees engaged in makes
employer engaged in, p. 66.

Hauling dead engine, p. 64.

Hauling empty cars, p. 64.

Interstate carrier by water, p. 15.

Interurban lines, pp. 64, 470.

Line leased to interstate carrier,
p. 66.

Making repairs to track, p. 65.

Mining coal, p. 64.

Moving engine to repair, p. 64.

Operating between states, p. 281.

When wholly within state, pp. 63,
276, 467.

COMMERCE, cont'd.

Engagement in intrastate:
Reliance on violation of federal
act as negligence, p. 142.
State law controls, p. 41.
Evidence of interstate, p. 311.
See “Evidence.”
Admissibility, p. 579.
Admissibility when not pleaded,
De 308.
Sufficiency to show, pp. 44, 275,
324, 326, 585.
Exclusive control by congress of in-
terstate:
Effect of different rule under
state and federal law, p. 29.
Effect of inaction, p. 35.
Impairment by subsequent state
: law, p. 36.
Federal !aw supreme over interstate,
pp. 3, 9, 44, 175, 203, 459.
As superseding state law whether
common or statutory, p. 36.
State law not cumulative, p. 39.
State law not supplementary, .p.

39, :
Waiver of application of federal
laws, p. 44.

Hours of Service Act, pp. 619-620.
See “Hours of Service Act.”
Not distinguishing between, p.
609.
Statutory Provisions, p. 721.
Indiscriminate service in intrastate
and interstate, p. 84.
Instructions on interstate:
See “Instructions.”
In actions under state law, p. 348.
Liability “in certain cases’ means
exclusion of intrastate commerce,
p. 50.
No carriage, no commerce, p. 15.
Past or future service to determine
service of employee, p. 63.
Interstate: 5
As fact within knowledge of de-
fendant, p. 283.
Defeating action under state law,

p. 297. f

Employee must be engaged in,
p. 17. ;

Employer must be engaged in, p.
254.

Failure to raise question of, p.
597. ;

Injury from outside agency, pp.
19, 28. ;

Limited to parties engaged in, p.
61.

Mining coal, p. 234.

Passing through other states to
point in same state, p. 464. —
Presumption of engagement in,

p. 423.
Presumption of use in, p. 587.
Railroad wholly within state, pp.
63, 276, 467.
748 INDEX.

COMMERCE, cont'd.
Interstate, cont’d.

Records, p. 579.

Safety Appliance Act as interfer-
ence with, p. 443.

Separation between intrastate, p.
68..

Statutory provisions on, pp. 653,
654, 659.

What constitutes, p. 464.

Pleading interstate:

See “Pleading.”

Aider by answer, p. 286.

Amendment to show, p. 290.

Evidence showing intrastate, p..

274,

Showing to give federal courts
jurisdiction, p. 234.

Sufficiency to show, pp. 277-281.

Power of congress over interstate, p.
444,
See “Congress.”

Act of 1906 exceeds, p. 27.

Present act no regulation of in-
trastate, p. 28.

Regulating employer and em-
ployees, not encroachment on
state powers, p. 26.

Want of, not presumed from re-
stricted action, p. 459.

Proof of interstate, p. 303:
Actions under Safety Appliance

Act, p. 583.
Instrumentality inflicting injury,
p. 304.
Rebilling cars with interstate ship-
ment, p. 87.

Safety Appliance Act, p. 572.
See “Safety Appliance Act.”
Cars moved on private switches,
p. 467.
Cars moved on switches, p. 466.
Cars moved on track of other
. carriers, p. 467.
Charging use in interstate, p. 566.
Use in interstate not essential,

p. 465.
State laws interfering with interstate,
p. 462. : :
Cannot’ be impaired by state
laws, p. 459.

Electric headlights, p. 462.

Engineer to distinguish colors, p.
461.

Frogs and switches to be
blocked, p. 462.

Heating of cars, p. 461.

Negligence of fellow servants, p.
462.

Number of train crew, p. 461.

Requiring licenses of engineers,
p. 461. : :

Subsequent legislation, p. 36.

State laws when controlling, p. 42.

COMMINGLED SERVICE

Distinguished from indiscriminate

service, p. 84.

COMMON CARRIER

Act extends only to company as such,
p. 16.
Boats used in connection with roads,
p. 16.
Engaged in intrastate commerce:
State laws control, p. 42.
Hours of Service Act:
Defined, p. 619.
Receiver as, p. 619.
Individual defendant not liable as
such, p. 254.
Power of congress to regulate on
land and water:
Act extends only to carriers by
rail, p. 7.
Railroads transporting own products,
p. 15.
Street railways, p. 15.
Terminal railways, p. 15.
What constitutes, p. 15.

COMMON LAW

Assumption of risk:
Abolished by Safety Appliance
Act, p. 534.
When available as at, p. 170.
Change by statutory requirements, p.
526.
Considered archaic, p. 13.
Construction of statutes in delega-
tion of, p. 449.
Contributory negligence rule:
Rejected, p. 153.
Declared hard and oppressive, p. 3.
Enlargement or restriction by state
statute, pp. 120, 174.
Federal act as superseding, p. 36.
Federal courts determine, pp. 119,
120, 174.
Joinder of actions with statutory ac-
tion, p. 288.
Negligence: .
Determined by rule of, p. 119.
Ordinary application to be made in
cases under act, p. 174.
Superseded by Safety Appliance Act,
p. 456.
Survival at, p. 191.
Vested rights in rules of, p. 2.

COMPARATIVE NEGLIGENCE

ae wy t€ ay
See “Damages,” “Negligence.”

Distinguished from proportionate
negligence, p. 155. ,
COMPROMISE AND SETTLE-
MENT.

See “Defenses.”
By administrator as defense, p. 301.
Right of employee to affect after in-
jury, p. 59.
Settlement by administrator:
Validity of appointment, p. 310.
INDEX. 749

CONCURRENT CAUSE

See “Proximate and Concurrent
Cause.”

CONDITIONS

Requiring notice precedent to suit,
pp. 55-56.

CONGRESS

Distinction between contributory
negligence and assumption of risk
recognized by, p. 167.

Impairment of contracts, p. 52.

Nature of regulation protecting em-
ployees, p. 2.

Object in enacting law, pp. 13, 175.

Occupation of field by Safety Ap-
pliance Act, p. 460.

Power in District of Columbia, p. 6:

Power in territories:

Not dependent upon interstate
commerce, pp. 6, 12.

Retroactive operation of laws, p.
12.

Power over interstate commerce:

See “Commerce.”

Act of 1906, exceeds, p. 14.

Conflict with state laws, pp. 29,
39.

Destruction by commingling
business, p. 4.

Effect of enactment on state
laws, p. 614.

Effect of inaction, p. 35.

Effect of prior state enactment
om, p, The 3

Exercise not presumed by re-
stricted action, p. 459.

Injury resulting ‘outside of inter-
state commerce, p. 5.

Limitation to mechanical ap-
pliances, p. 610.

Not limited to engaging in inter-
state commerce by both par-
ties, p. 18.

Plenary, p. 3.

Supreme, not supplementary or
cumulative, p- 39.

Test of, pp. 1, 5.

To abolish common law tule, af-
fecting, p. 3.

To declare contract in contra-
vention of act void, p. 52.

To enact Hours of Service Act,
p. 608.

To enact Safety Appliance Act,
pp. 444, 458.

Power over state courts, p. 243.

Powers over carriers on land and
water, p. 7.

Powers restricted to interstate com-
merce, pp. 3, 14, 28.

Power to change common law rule,

p. 2.

CONGRESS, cont'd.

Power to regulate employer and em-
ployees:
Not encroachment on state pow-
ers, p. 26.
Removal of causes:
See “Removal of Cause.”
Intent to deny in all cases, pp.
250-251.
Right to prohibit removal, pp.
251-252.

CONSOLIDATION

Of suits under state and federal laws
for trial, p. 405.

CONSTITUTIONAL LAW
Abridging privileges and immunities:
Refers to state action, p. 32.

Act of 1906:
Reason of unconstitutionality, p.
14,
Act of 1908:
Conferring jurisdiction upon
state courts, p. 238.
Effect of injury from outside
agency, p. 28.
Not interference with intrastate
commerce, 28.
Valid exercise of power over in-
terstate commerce, p. 26.
Arbitrary classification:
Benefit to interstate employees,
p. 31.
Limited to railroad employees,
p. 31.
Designation of beneficiaries:
Interference with administration
of estates, p. 29.
Different rules under state and fed-
eral law, p. 29.
Due process of law not violated, p.
30
Effect of unconstitutionality, p. 9.
Federal law under, supreme, p. 10.
Forbidding contracts to defeat act as
impairing obligation of contract, p.
Ody
Fourteenth Amendment:
Procedure when violative of, p.
243.
Verdict not unanimous, p. 240.
When jury less than twelve, p
240.
Hours of Service Act:
Arbitrary classification of em-
ployees, p. 611.
Certainty of statute, p. 610.
Not distinguishing between in;
terstate and intrastate service,

p. 609.

Requiring sworn monthly re-
ports, p. 611.

Restricting liberty of contract, p.
610.

Validity, p. 608.
750 INDEX.

CONSTITUTIONAL LAW, cont'd.
Impairment of existing contract, p.
52.
Inseparability of act, partially void,

4
Power of congress:
In District of
territories, p. 6.
Over indiscriminate
p. 29.
Over interstate commerce, p. 3.
Over intrastate commerce, p. 3.
Regulating relation of master
and servant, p. 2.
Regulation of all business of in-
terstate carrier, p. 4.
Prohibiting changes in common law
rules, p. 3.

Prohibiting removal of causes, pp.
251-252.
Review of questions by federal su-
preme court, pp. 32, 426.
Right to raise question of, p. 32.
Safety Appliance Act:
Construction same in civil and
penal aspect, p. 449.
Delegation of constitutional
power to Interstate Commerce
Commission, p. 443.
Interference with intrastate com-
merce, pp. 443-446.
Seventh Amendment:
Not applicable to states, p. 241.
State courts having juries of less
than twelve, p. 240.
State courts receiving verdict not
unanimous, p. ‘240.
Vested right in common law, p. 30.

CONSTRUCTION

See “Hours of Service Act,”
“Safety Appliance Act,” “Stat-
utes.”

By federal supreme court conclusive,
p. 33.

Drawing from extraneous source, pp.
196-197.

Hardship caused by, p. 49.

Liability “In Certain Cases” is to in-
terstate commerce not negligence,

Columbia and

commerce,

p. 50. .
Of instruments of interstate com-
merce:

As engagement in such com-
merce, pp. 76-78.

Penal or remedial, p. 33.

Permitting beneficiaries to sue, p.
203.

Requiring election between actions
for pain and suffering and pecuni-
ary loss, p. 194.

State courts follow federal, p. 33.

On assumption of risk, p. 34.
On fellow servants, p. 34.
On negligence, p. 34.

CONSTRUCTION, cont'd.

Strict or liberal, p. 33.
With reference to Workmen’s Com-
pensation Act, p. 49.

CONTINUANCE

Discretion to grant, p. 405.
Permitting after amendment of plead-
ing, p. 405.

CONTINUOUS SERVICE

Distinct from aggregate, pp. 629-631.

Hours for rest of employees in, p.
724,

Interruption of, by meal time, p. 624.

Lay-off as breaking, p. 624.

Resting during run, p. 629.

Statutory provisions, p. 721.

CONTRACTS

See “Defenses,” “Set-Off.”

Accepting benefits under, p. 56.
Action under relief contract, p. 58.
Suit for injuries as precluding,
p. 58.
Admissibility of, to show relation of
parties, p. 312.
As defense, p. 301.
Between others than employer and
employee, p. 53.
Express agent, p. 54.
Independent contractor, p. 54.
Operation as between joint tort
feasors, p. 54.
Pullman porter, p. 54.
Student brakeman, p. 54.
Covering injury from fellow servants,
p. 146.
Defeating operation of act, p. 51.
Employer and employee not on
equal plane in making, p. 13.
Failure to keep lookout under, as con-
tributory negligence, p. 164.
Hours of service:
As restricting liberty of, p. 610.
Impairing liberty of contract, pp. 51,
610.
Implied contracts within prohibition,
p. 53. 3
Meaning and scope as question for
jury, p. 55.
Pleading act to show contract void,
p. 55.
Pre-existing contracts, pp. 52, 53.
Release of liability subsequent to in-
jury, pp. 59-60.
Requiring notice precedent to suit, p.
55.
Right to defeat liability by:
Opposed to due process clause,
p. 30.
Set--off of liability, p. 51.
Showing void as to party jointly lia-
ble, p. 309.
Statutory provisions on, pp. 653, 655.
Void for fraud, p. 59.
INDEX. 751

CONTRACTS, contd.

Void for want of mental capacity, 60.
With relief department:
As within prohibition, p. 56.
Release under, as new contract,
p. 57.

CONTRIBUTORY NEGLIGENCE

Abolished when, pp. 150-152.
Statute must be federal, p. 176.
Statute violated, pp. 173, 176.
Statute violated as proximate
cause of injury, pp. 173, 176.
Adopting unsafe method of work, p.
165.
Asleep on track, p. 156.
Assuming dangerous position, p. 543.
Assumption of risk:
Distinguished, p. 167.
Necessity of recognizing dis-
tinction, pp. 167-170.
Not to be called, p. 535.
When calling not prejudicial, p.

418.
Available under Safety Appliance
Act, p. 538.

Burden of proof, pp. 304-306, 588.

Evidence of plaintiff showing, p.

307.

Pleading as admission, p. 305.

Care required of employee, pp. 127,
150, 540.

Choice of ways, p. 150.

Infants, p. 150.

Precaution against danger, p. 543.

When Safety Appliance Act vio-

lated, p. 539.
Common-law rule: :
Comparative negligence substi-
tuted for, p. 14.
Not applicable under modern
conditions, p. 13.

Rejected, p. 153.

Continuance in employment in face
of danger, p. 165.

Continuance in employment on
promise to repair, p. 170.

Criminal negligence of employee as
defense, p. 301.

Custom as evidence of, p. 580.

Defense, p. 301.

Of other employees, p. 540.
Definition of unchanged, p. 150.
Determined by state law when, p. 42.
Diminishes damages only, p. 153.
Diminution of damages for, pp. 387-

394.

Apportionment by jury in ver-
dict, p. 394.

Comparison of negligence of
each, p. 391.

Confusion with comparative
damages, p. 155.

Plaintiff's negligence greater, p.
154.

CONTRIBUTORY NEGLIGENCE,

cont'd,

Diminution of damages for, cont'd.

Proximate cause of injury, p.
202.

Reasonable reduction, p. 392.

Reduction by amount jury thinks
proper, p. 156.

To be proportionate, p. 152.
‘When statute violated, p. 166.
Distinguished from assumption of

risk, p. 537.

Doctrine of last clear chance, p. 156.
As admission of, p. 161.
Instructions on, p. 358.

Effect of violation of Safety Ap-

pliance Act on, p. 151.
Evidence admissible to show:
Alighting from moving trains,
p. 315.
Care of employee, p. 315.
Customs of employees, p. 580.
Failure to obey signals, p. 315.
Failure to discover open switch, p.
165.
Failure to flag rear train, p. 156.
Failure to keep lookout on track, p-
164.
Failure to protect train by signals, p.
169. ;
Failure to remove hand car from
track, p. 163.
Failure to use automatic couplers, pp.
547, 548.
Failure to use safer method, p. 546.
Failure to use safety appliances, p.
545.
Finding for plaintiff not conclusive
of, p. 408.
Going between cars, p. 164.
As question for jury, p. 541.
As question of law, p. 543.
Couplers hard to work, p. 502.
Effort required of employee to
operate couplers, p. 502.
Necessity of, p. 497.
Going between close parallel tracks
with knowledge, p. 135.
Going in roundhouse without light,
p. 164.
Implies negligence on part of plain-
tiff and defendant, p. 158.
Inadequate damages presumed as re-
sult of, p. 423.
Instructions:
Addressed to issue of damages,
p. 358.
Included under damages, p. 348.
Necessity to give, p. 359.
Too favorable to party objecting,
p. 354.
Jumping from engine in emergency,
p. 163.

Manner of riding car, p. 165.

Nonsuit for, p. 403.

Object in changing rule, p. 14.
752 INDEX.

CONTRIBUTORY NEGLIGENCE,
cont'd.

Permitting contact of electric-switch,
p. 165. ‘
Pleading:
As estoppel to rely on federal
act, p. 298.
Availability under general issue,
p. 299.
Necessity, pp. 287, 262.
Under Safety Appliance Act, pp.
571, S76,
Power to abolish, p. 3.
Presumption of due care, pp. 163, 307.
Presumption of negligence from in-
jury, p. 542.
Proximate cause of injury, pp. 156-

161.
Not to be called to defeat recov-
ery, p. 157.

Recovery not defeated unless
sole cause, p. 138.

Question of law or fact, pp. 161-166,
541, 543.
Reduction of damages, p. 165.
Under Safety Appliance Act, p.
586.

Recovery not defeated by, p. 152.
Requiring remittitur for and affirm-
ance of judgment, pp. 440, 441.
Rulings on when not prejudicial, p.

417.

Sole cause of injury, pp. 359, 360.
Defeats recovery, p. 158.
Disobedience of rules, p. 160.
Failure to flag rear train, p. 160.
Failure to go back to protect

train, p. 159.
Failure to inform engineer of
open switch, p. 160.
Failure to obey orders, p. 160.
Failure to protect cars by flag,
ps 168.
Going between cars, p. 160.
Jumping from hand car, p. 159.
Neglect to watch train when
sent back, p. 159.
Not contributory, p. 158.
Using foot to adjust coupler, p.
160.
Walking on track, p. 160.
Special verdict as showing, p. 592.
Standing on track while working, p.
165.

Statutory provisions on, pp. 653, 654.

Stepping before moving train, p. 157.

Sufficiency of evidence to show:
Going between cars, p. 536.

Using defective water gauge with

knowledge and without objection,
p. 169.
Violation of rules or orders, pp. 24,
161, 164, 307, 514, 549.
Compliance would not avoid in-
jury, p. 163.

CONTRIBUTORY NEGLIGENCE,

cont'd.
Violation of rules or orders, cont'd.
Excuses for violation, pp. 162,
163.
Requiring reporting of defects,
550.
Rules not applicable, p. 163.
Violation of Safety Appliance Act, p.
15k. 2
As proximate cause of injury, pp.
531-532.
In actions under liability act, p.
539.

COUPLERS

See “Cars,” “Safety Appliance
Act.”
Automatic operation:
Effort required of employee to
work, p. 546.
Embraces both coupling and un-
coupling, p. 496.
Extends to preparation for
coupling, p. 496.
Interchangeable, p. 479.
Load of cars preventing opera-
tion, p. 503.
Other appliances preventing op-
eration, p. 496.
Car equipment:
At each end of, p. 491.
Empties, p. 494.
While switched, p. 491.
Charging want of, as including defec-
tive, p. 590.
Contributory negtigence in failure to
use:
Existence of necessity to go be-
tween, p. 497.
When on other side of train, p.
547.
Defective:
Broken chain, p. 500.
Due to wear, p. 500.
Effort of employee to operate, p.

502.

Evidence of, subsequent to in-
jury, p. 581.

Failure to couple on impact, p.
501.

Failure to operate on curve
track, p. 499.

Failure to operate with other
makes, p. 499.
New and hard to work, p. 502.
Not used, p. 492.
Question for jury, p. 502.
Removal of, p. 493.
Duty to maintain, p. 500.
Expert evidence on, pp. 314, 579.
Failure to couple when switching, as
negligence, p. 130.

Going between cars as contributory
negligence, p. 160.
INDEX.

COUPLERS, cont'd.

Levers:

Necessity of, p. 498..

One of two defective, p. 501.

Required, p. 501.

Locomotive equipment, pp. 489, 492.

Between engine and tender, p.

489.

Removal of defective, p. 493.
Parties protected by statute, p. 528.
Standard and design, p. 498.
Statutory provisions, p. 657.
Sufficiency:

Test of, p. 494.

Use with adjacent cars, p. 493.
Sufficiency of evidence:

To sustain charge of negligence,

p. 586.
COURTS
See “Appeal and Error,” “Juris-
diction,” “Removal of Cause.”

Construction of general and special
verdicts, p. 409.
Following state rule, p. 409.
Construction of statutes:
‘Exceptions not to be implied, p.
449.
State statutes, by federal, p. 562.
Duty to administer proper law, pp. 47,
204, 413.
Duty to modify instructions, p. 362.
Federal:
Authoritative construction of
federal statutes, p. 33.
Determine common law for them-
selves, p. 174.
Determine who are fellow serv-
ants, p. 146.
Following state practice, p. 409.
Judicial notice, p. 307.
Pleading statutes to give juris-
diction, p. 270.
Fellow servants determined by fed-
eral courts, p. 146.

Instructions on law governing case,

p. 351. :
Duty to give without motion, p.
592.
Waiver by failure to request

proper one, p. 372.

Judicial notice of federal statutes, pp.
204, 307.

Jurisdiction of federal, pp. 233-235.
Admiralty courts, p. 235.
Concession to give, p. 234.
Dependent on allegations of pe-

tition, p. 234.
Doubtful, court
against, p. 259.
Presentation of federal contro-

versy, p. 234.
Presumption of, p. 234.
Territorial courts, p. 235.
Waiver of, p. 235.

Fed Act—48

determines

753

COURTS, cont'd.

Jurisdiction of state, pp. 235-244.
Actions under Safety Appliance

Act, p. 554.

Concurrent with federal courts,
p. 235.

Constitutionality of grant of, p.
238.

Duty to take, p. 238.
Expressly conferred by act of
1910, p. 237.
Having jury of less than twelve,
pp. 238, 240.
Hearing and determining similar
controversies, p. 244.
Power of congress over, p. 243.
Procedure does not affect, p. 243.
Refusal by declining to appoint
administrator, p. 238.
Refusal of as against public pol-
icy, p. 238.
Returning verdict not unanimous,
pp. 238, 240.
Test of competency, p. 243.
Jurisdiction on removal, pp. 244-260,
559:
Conferred by consent, p. 258.
Erroneous order of removal, p.
256.
Jurisdiction to determine, p. 255.
Pleading federal statutes in state, p.
270.
Procedure, following federal rule:
In enforcing federal rights, p.
239.
Taking question from jury, p. 334.
Review by federal supreme:
See “Appeal and Error,” “Ju-
risdiction.”
From district court, p. 426.
Under Safety Appliance Act, p.
599.

States follow federal as to construc-
tion of common law, pp. 119-120.
Wisdom or expediency of legislation

not questionable, p. 3.

CREWS

See “Commerce.”
State statute regulating number of:
As interference with interstate
commerce, p. 461.

CROSS-EXAMINATION

Admissibility of evidence on, pp. 315,
322.

Sufficiency of objection to, p. 342.

Testifying to new matter, p. 323.

CROSSINGS

Watchman at as engaged in inter-
state commerce, p. 103.
754

CUSTOM

Admissibility of evidence of, 316.
To contradict rules and orders,
p. 317,
To show contributory negligence,
p. 580.
As defense:
Actions under Safety Appliance
Act, pp. 562-564.
Determining care required of em-
ployee, p. 540.
To use caboose for toilet after end of
run, p. 22.

CUT-OFF
Employee working on bridge as en-
gaged in interstate commerce, p. 76.

DAMAGES
See “Pecuniary Loss.”
Accidental aggravation of injury, p.
368.
“Adding interest to verdict, pp. 234,
395.
Admissibility of evidence of:
Chance for promotion, p. 318.
Earning capacity, p. 318.
Expert evidence, p. 319.
Income tables, p. 320.
In mitigation, p. 310.
Lex fori controls, p. 375.
Limitation by first trial, p. 311.
Mortality tables, p. 320.
Pecuniary loss, p. 322.
To beneficiaries, p. 320.
Trade or business, p. 318.
Unfitness for future work, p. 318.
Wages received, p. 318.
X-ray photographs, p. 320.
Aliens right to recover, p. 229.
Amount:
Ability of defendant to pay af-
fecting, p. 406.

Consumed at end of dependency,
p. 375.

For widow and children, pp. 396-
398.
Interest to be considered, p. 374.
Limited to life expectancy, p. 377.
Limited to pecuniary loss, p. 371.
Limited to sum claimed in peti-
tion, p. 370.

Recovery for pain and suffering,
p. 398.

Recovery for parents, p. 398.

Recovery for personal injuries,
pp. 399-402.

Tested by amount in
cases, p. 395.

Variation according to relation,
p. 395.

Apportionment, p. 224.

Among beneficiaries, pp. 384, 385.

Between Act of God and concur-
rent negligence of defendant, p.
141. :

Fer pain and suffering, and pe-
cuniary loss, p. 386.

similar

INDEX.

DAMAGES, cont'd.

Benefit of estate, pp. 192, 194, 195,
217, 219.
Commission by administrator on re-
covery, p. 386.
Contributory negligence:
Considered in mitigation only, pp.
153, 358, 387-394.
Disregarded when, p. 152. ©
Plaintiff’s negligence greater, p.
154.
Proportionate recovery for, p. 152.
Safety Appliance Act violated, p.
152.
To defeat recovery must be sole
cause of injury, p. 158.
Determined by state law when, p. 42.
Different under state and _ federal
laws, p. 10.
Diminution for contributory  neli-
gence, pp. 152, 387-394.
Apportionment by jury in verdict,

p. 394.

Comparison of negligence of
each, p. 391.

Plaintiff’s negligence greater, p.
154. "

Proportional, pp. 14, 155.

Proximate cause of injury, p. 392.

Question for jury, p. 165. ~

Reasonable reduction, p. 392.

Reduced by amount jury think
proper, p. 156,

Rule stated, p. 388.

When not pleaded, pp. 299.
When statute violated, p. 166.
Distribution of statute controls, p.

217.
Duty ‘to lessen, p. 369.
Election between recoveries not re-
quired, p. 194.
Elements of:
To children, pp. 220, 377.
To employee, p. 365.
To next of kin, p. 383.
To surviving wife, p. 375.
Excessive:
When afflicted child exhibited to
jury, p. 347.
Excess, over pecuniary, to estate, p.
372.
Expenses of nursing, p. 369.
Expert evidence to show extent of
injuries, p. 319.
Federal act controls distribution, pp.
40, 219.
Federal act determines, p. 36.
For iniuries and death recovered in
one action, p. 192.
For personal injuries:
Diminished earning power, p. 364,
366.

Expenses incurred, p. 364.
Future effects of injury, p. 368.
Impairment of speech, p. 370.
INDEX. 755

DAMAGES, cont'd.
For personal injuries, cont'd.
Increased injury from surgical
Operations, p. 369.
Loss of sexual power, p. 369.
Loss of time, pp. 364, 366.
Pain and suffering, pp. 364, 366.
Permanency of injury not devel-
oped at trial, p. 369.
Personal inconvenience, p. 368.
Prospective suffering and loss of
health, p. 368.
Foster children right to recover for,
Pp. 229.
Inadequate:
Presumed to result from contrib-
utory negligence, p. 423.
In case of death:
For pecuniary loss and pain and
suffering, pp. 365, 370.
Not equal among beneficiaries, p.

224,

One recovery in same action, p.
365.

Prior to amendment of 1910, p.
364,

Survival under amendment of
1910, p. 365.

Instructions:

Contributory negligence not sep-

arate, p. 348.

To be proportioned not com-
pared, pp. 14, 155.
Too favorable to party complain-
ing, p. 354.
Loss to estate, p. 372.
Measure of: /
} Following federal rule, p. 365.
Necessity of pecuniary:
To next of kin, p. 219.
To widow, children and parents,
p. 219.
Peculiar to children, p. 377.
Adults, p. 379.
Afflicted child, p. 347.
Loss of mothers care, p. 379.
Married, pp. 220, 379.
Pecuniary loss:
Admissibility of
show, p. 321.
Care and advice, p. 222.
Comparison between adults and
children, p. 379.
Contingent illness and death of
deceased considered, p. 374.
Contributions to children, p. 380.
Defined, p. 372.
Earning power of award consid-
ered, p. 371.
Excludes funeral charges, p. 373.
Gifts of inheritance from de-
ceased, p. 372.
Gross income less expenses, pp.
372, 373.
Includes loss of services, p. 373.
Interest not to equal, p. 374.

evidence to

DAMAGES, cont'd.

Pecuniary loss, cont'd.
Interest on money to be con-
sidered, p. 374. .
Necessity of, p. 220.
Not dependent upon legal lia-
bility, p. 372.

Not limited to money, p. 373.

Of next of kin, p. 222.

Of son by divorced wife, p. 224.

Punitive elements excluded, p.

373.
Questions for jury, p. 222.
Society and companionship, p.
222. ;
Sufficiency of evidence to show,
p. 222.

To parents, pp. 222, 382.
Penalty for delay by appeal, p. 438.
Proximate result of injury, p. 367.
Reduction by court, p. 369.
Reduction on appeal, p. 425.
Requiring remittitur, pp. 440, 441.
Restriction by state laws, p. 394.
Statutory provisions, pp. 653, 654.

Two liabilities declared, p. 364.
Suffering and pecuniary loss recov-

ered in same action, p. 194.
Survival of action when death in-
stantaneous, p. 195.
Time of determining extent, p. 369.
To whom given, p. 217.

DANGERS

Appreciation by employee to show
assumption of risk, p. 182.

Assumption of risk:

Care required. of employer to
discover, p. 183.

Opportunity for appreciation of,
p. 183.

Continuance in employment in face
of as contributory negligence, p-
165.

Instructions on assumption of risk:
Embracing obvious, p. 361.
Embracing ordinary and extra-

ordinary, p. 362.

Precaution against, p. 543.

DEATH
See “Actions,” “Damages,” ‘‘Re-
vival,” “Survival.”
Damages:

Recovery when, p. 365.

Right of survival, p. 195.
Independent action in case of, p. 190.
Instantaneous:

As defeating recovery, p. 197. —

Precluding recovery for pecuni-

ary loss, p. 195.
Recovery for conscious suffering un-
der original act, p. 190.
Recovery for, under Safety Appliance
Act, p. 529.
756

DEATH, cont'd.

Revival of action on, p. 193.
Survival:
Recovery for pain and suffering,
p. 198.
Time between injuries and death,
pp. 196-197.
Under amendment of 1910, p.
192.
Total recovery in one action, p.
365.

DECLARATION, COMPLAINT OR
PETITION

See “Actions,” “Commerce,”
“Hours of Service Act,” “Lim-
itations,”’ ‘Pleading,’ ‘Safety
Appliance Act.”

Aider by plea or answer, p. 286.
Amendment of:

By aider of answer, p. 291.

Requiring statement in separate
counts, p. 290.

Right of court to permit, p. 290.

Subject to limitation of actions,
p. 292.

To show existence of beneficia-
ries, p. 340.

To show interstate commerce, p.
290.

When stating new cause of ac-
tion, p. 292.

Amendment changing parties:

Appointment of administrator by
different court, p. 205.

Must not state new action, p.
207.

Next of kin to representative, p.
205.

Widow to representative, p. 205.

Beneficiaries:

Showing existence of, p. 340.
Demurrer:

As questioning capacity of party

plaintiff, p. 215.

Right to impose, p. 232.
Dismissal for insufficiency, p. 403.
Erroneous reference to law, p. 204.

Rejecting as surplusage, p. 336.

Waiver by failure to plead in
abatement, p. 298.

Joinder of causes of action, p. 288.

As statement of different . ac-
tions, p. 288.

Repugnancy of, p. 288.

Statement in separate counts,
p. 288.
With action under state law,
p. 287.

Necessity to plead law, pp. 204, 570.
Negativing defenses, p. 287.
Objections to, under state law, p. 298.
Showing limitation past, p. 232.
Under Safety Appliance Act, p. 572.
Alleging necessity of going be-
tween cars, p. 568.
Following state practice, p. 565.

INDEX.

DECLARATION, COMPLAINT OR

PETITION, cont'd.
Under Safety Appliance Act, cont'd.
In language of statute, p. 565.
Knowledge of want of care,
p. 567.

Necessity to plead, p. 570.

Negativing exception in proviso,
pp. 569, 573.

Several violations in
counts, p. 565.

Use in interstate commerce, p.
566.

Waiver of failure to allege inter-
state commerce, p. 573.

distinct

DEFENDANTS

See “Parties.”
Defenses, special to, p. 302.
Dismissal of fraudulently joined, p.
404.
Instructions when one not liable,
p. 358.
Joint lability:
Evidence showing
commerce, p. 309.
For violating Safety Appliance
Act, p. 596.
Proceedings on appeal:
Against one of two defendants,
p. 423.
Curing defect
p. 423.

interstate

by amendment,

DEFENSES

See ‘Assumption of Risk,” “Con-
tracts,’ “Contributory Negli-
gence,” “Hours of Service
Act,” “Safety Appliance Act.”

Assumed risk and contributory neg-

ligence distinguished, pp. 167-170.

Assumption of risk, p. 301.

Available when, p. 170.

Denial of, as unconstitutional,
p. 443.

Object in abolishing, p. 536.

Violation of statute to defeat,
must be proximate cause of
injury, p. 173.

Contract or device exempting em-

ployer, pp. 53, 301.

Operation between joint tort
feasors, p. 54.

Releasing liability, p.’ 54.

Statutory provisions on, pp. 653,
655.

Contributory: negligence, p. 301.
Failure to use appliances, p. 545.
Failure to use safer method,

p. 546.

Necessity to plead, p. 262.

Not to defeat action, pp. 153,
358.

Sole cause of injury, p. 359.

Under Safety Appliance Act.
pi. B58.
INDEX.

DEFENCES, cont'd.

Criminal negligence of employee,
Pp. 301.
Failure to give notice precedent to

suit, p. 55.

Hours of Service Act, pp. 636-645.
Knowledge of employee, p. 605.
Necessity to plead, p. 648.
Reasonable care, p. 605.

Service against orders, p. 607.
Sufficiency of rest periods, p. 605.
Voluntary service of employees,
p. 607.
Invoking federal act as, p. 295.
Judgment in action under state law,
p. 209.

Limitation of action, pp. 230-232.

Lis pendens, p. 300, 302.

Negativing, p. 287.

Other law controlling, p. 301.

Release of liability subsequent to in-

jury, p. 59.
Res adjudicata, pp. 209, 302.
Safety Appliance Act, pp. 479, 562-
564,
Assumption of
pp. 534-536.
Care and diligence, p. 455.
Difficulty of compliance, p. 451.
Failure to report defects, p. 550.
Knowledge and intent, p. 454.
Movement to repair, p. 564.
Sufficiency of evidence to sus-
tain, p. 588.
Settlement, p. 301.
Special to co-defendant, p. 302.

risk abolished,

DELEGATION
See “Hours of Service Act,”
“Negligence,” “Safety Appli-
ance Act.”
Duty under Safety Appliance Act,
p. 457.
DEMURRERS

Hours of Service Act:
Action against receiver, p. 650.
Admissions by demurrer, p. 650.
Sufficiency to question capacity of
plaintiff:
When made to complaint or dec-
laration, p. 215.
When made to evidence, p. 215.

DEPENDENCY

See “Beneficiaries,’
“Pecuniary Loss.”
Character when beneficiaries of third
class, p. 222.
Defined, p. 223.
Moral claim to support as showing,
p. 223.
Necessity to allege, p. 226.
Necessity to show:
Of beneficiaries,
p. 225.
Of next of kin, p. 221.
Of widow and children, p. 221.

’

“Damages,”

not presumed,

7357

DEPENDENCY, cont'd.

Of next of kin, pp. 219, 383.
Of parents, p. 219.
As question for jury, p. 222.
Not necessary, p. 381.
Sufficiency of evidence to show,
p. 222.
Of sister:
Evidence held to show, p. 223.
Of sister and brother, p. 224.
Question for jury, p. 224.
Of widow and children, p. 219.
Sufficiency of allegations of, p. 283.

Sufficiency of evidence to show,
p. 383.
DEPOTS
See “Stations.”
DETECTIVES
See “Watchman.”
DEVICE

See “Contracts.”
To defeat operation of act, p. 51.

DISMISSAL AND NONSUIT

As res adjudicata, p. 404.
By neglect to take nonsuit, p. 209.
Consideration of evidence upon re-
quest to dismiss, p. 323. °
Dismissal for improper parties, p. 269.
Dismissal without prejudice:
Effect. on right to subsequent
suit, p. 210.
Right of court, p. 209.
For insufficient evidence, p. 323.
Failure to show negligence in
having tracks too close to-
gether, p. 135.
Former opinion as law
p. 424.
Fraudulent joinder of party, p. 404.
Institution of subsequent suit on,
after limitation, p. 231.
Insufficiency of declaration, p. 403.
Lis pendens, p. 403.
Nonsuit for contributory negligence,

regarding,

pp. 156, 403.
On appeal, dismissal or affirmance,
p. 437.

Power of court to dismiss, p. 403.
Taking nonsuit as to improper party,

p. 205.
Want of jurisdiction, p. 403.
DISPATCHER
See “Hours of Service Act,”
“Operators.”

Negligence of, pp. 128, 328.
-Unders Hours of Service ‘Act:
Requiring work in other service,
p. 526.

DISTRICT ATTORNEY

Duty to institute suit:
Statutory provisions, pp. 658, 722.
758

DISTRICT OF COLUMBIA

Act extending to, p. 37.
Act of 1906 still operative in, pp. 7,
27.
Carriers running outside of, p. 27.
Appeals from courts to federal su-
preme court, p. 428.

Hours of Service Act in, p. 724.
Statutory provisions, p. 721.
Legislative power of congress over,

p. 6.
Safety Appliance Act in, pp. 462-463.
_, Statutory provisions, p. 659.
Statutory provisions regarding, pp.
653, 654,

DIVERSITY OF CITIZENSHIP

See “Removal of Cause.”
As ground for removal, pp. 247, 248.

DIVORCE

Admissibility of evidence of, p. 224.
Affecting right of recovery, p. 224.

DRAWBARS

See “Cars,”
Act.”
Defect concurring with negligence of

employee, p. 161.
Delegation of authority to fix height
as unconstitutional, p. 443.
Devices to maintain height, p. 5%0.
Duty respecting, same as couplers,
p. 457.
Orders fixing height, p. 663.
Replacing while in transit as engage-
ment in interstate commerce, p. 82.
Requirements of, p. 507.
Statutory provisions, p. 658.
Variation in height, p. 509.

EARNING POWER

See “Damages.”
Damages for loss of:
Begins where loss of time ends,
p. 367.
Recovery when diminished, p.
366.

ELECTION OF REMEDIES

Between state and federal laws:
Federal law supreme, p. 266.
Not cumulative or optional, p.
266,
Right to, p. 43.
By amendment to show action under
federal law, p. 294.
Effect when wrong, p. 267.
Right to require, pp. 43, 265.
Between damages for personal
injury and pecuniary loss, p.
194.
Employees joined as defendants,
p. 268.
In suit under state, common and
federal law, p. 267.

“Safety Appliance

INDEX.

ELECTION OF REMEDIES, cont'd.
Under Safety Appliance Act:
Between state and federal stat-
utes, p. 571.

ELECTRIC APPLIANCES

Assumption of risk: ;
From high tension line, p. 180.
Of wires passing under bridge,

p. 182. . .
Failure to deaden switch as negli-
gence, p. 134.
Motorcars with air brakes, p. 481.
EMERGENCY

See “Assumption of Risk,” “Con-
tributory Negligence,’ “Hours
of Service Act.” ‘

Acts in, as negligence, p. 163.
Assumption of risk of act in, when
caused by negligence, p. 180.
Working employee over time:
Necessity of being real, p. 725.
Statutory provisions, p. 721.

EMPLOYER AND EMPLOYEE

Admissibility of evidence:

Of employees, p. 579.
Reputation of employee, p. 313.

Assumption of risk:

Federal law determines common
law rule, p. 175.
Statement of rule, p. 177.

Assumption of risk of negligence:
Concurring causes, one only as-

sumed, p. 186.

Continuance in employment with
knowledge and without objec-
tion, p. 181.

Effect of promise to repair, pp.
181, 185.

Knowledge and appreciation of
danger, pp. 183, 185.

Not precluded by statute, p. 184.

Question for court, pp. 188-189.

Question for jury, p. 188.

Care required of employee, p. 540.
Choice of ways, pp. 150, 546.
Infants, p. 150.

Instructions defining, p. 359.

To use appliances furnished, p.

546.
When Safety Appliance Act vio-
lated, p. 539.
Constitutionality of regulation of re-
lation:
Encroachment on state powers,
p. 26.
Employee engaged in interstate com-
merce:
Action under Safety Appliance
Act, p. 446,
Altering machinery in shops,
p. 81. :
Asleep in car on side track, p.
115.
INDEX. 759

: EMPLOYER AND EMPLOYEE, EMPLOYER AND EMPLOYEE,
contd. cont'd.

Employee engaged in interstate com- Employee engaged in interstate com-

merce, cont'd.

Assisting in moving machinery
for shipment, p. 102.

Baggageman going into express
car, p. 115. :

Breaking up train at division
point, p. 99.

Caretaker on dead engine in train
from state to state, p. 85.

vas for engines generally, p.

Carrying bolts or rivets to repair
bridge, p. 70.

Change in work, next service
held question for jury, p. 107.
Changing hand signals to auto-

matic, p. 74.

Cleaning ash pit, p. 102.

Cleaning flues of engine, p. 94.

Cleaning stencils, p. 106.

Cleaning up coal around bins,

. 92.

‘Clerk sealing cars in interstate
train, p. 100. ‘

Clerk taking numbers of cars in
interstate train, p. 100.

Commingling of service of em-
ployee, p. 43.

Conducting car between local
points, p. 86.

Conductor inspecting train, p. 99.

Conductor on way to take out
train, p. 115.

Consideration of past and future
service, p. 106.

Constructing bridge on cut-off,
p. 76.

Constructing  instrumentalities,
pp. 76-78.

Constructing parallel tracks, p.
T%,

Constructing roundhouses and
freight sheds, p. 77.

Constructing tunnel, p. 76.

Cooling hot box, p. 89.

Coupling cars and air hose on
transfer track, p. 105.

Detective or watchman in yard,
p. 103.

Distinction between use of in-
strument and repair, p. 67.
Distributing cars rebilled from

intrastate points, p. 87.

Distributing cars to mines from
intrastate points, p. 87.

Effect of keeping track clear for
interstate train, p. 86.

Effect of right to give transfers
to passengers across state line,
p- 86. /

Engineer preparing engine for
trial trip, p. 90.

merce, cont'd.

Enlarging roundhouse or repair
shop, p. 74.

Excavating for new bridge, p. 76.

Express agent removing package
from grounds to depot, p. 111.

Filling tender with coal, p. 89.

Finding drinking cup, p. 89.

Gardner taking care of station
grounds, p. 104.

Gathering up discarded rails, p.
12;

Going for mail, p. 115.

Going for orders, p. 106.

Going to boarding house, p. 116.

Going to depot to board train,
p. 112.

Going to general work, p. 111.

Going to or returning from work,

pp. 111-116.

Going to pump water for trains,
p. 111. ,

Going to roundhouse for engine,
p. 90.

Hauling cars to local point to be
taken by interstate train, p. 99.

Hauling gravel to repair track,
p. 72.

Hauling water or coal, p. 91.

Helping to prepare engine to go
out, p. 89.

In both interstate and intrastate
commerce, pp. 41, 68, 84.

In intrastate commerce, when
next service interstate, p. 97.

In repair shops, p. 78. ;

Inspecting and oiling engine, p.
39.

Inspecting interstate train, p. 105.

Inspecting tracks, p. 73.

Inspector assisting at wreck, p.
105.

Inspector disconnecting steam
hose on interstate train, p. 105.

Inspector of intrastate train, p.

105.

Installing block signal system,
p. 77.

Joint employment by railroad and
another, p. 108.

Leaving place provided for ac-
commodation, p. 116.

Loading engine tenders, p. 92.

Loading interstate freight, p. 104.

Loading rails to repair track, p.
104.

Loading ties, p. 81.

Local employees; clerks; hostlers,
car loaders, inspectors, etc.,
pp. 100-106.

Maintaining electric signals in
repair, p. 73.
INDEX.

EMPLOYER AND EMPLOYEE,

cont'd.
Employee engaged in interstate com-
merce, cont'd.

Moving engine without cars be-
tween interstate points, p. 86.

On boat, p. 107.

On change in indiscriminate
work, p. 108.

On handcar, p. 42.

On interstate train, pp. 93, 619.

On interstate train but run be-
tween intrastate points, p. 88,
96.

On intrastate train carrying in-
terstate shipment, p. 87.

On round trip carrying interstate
commerce one way, p. 88.

On train carrying both kinds of
traffic, p. 85.

On train connecting with inter-
state one, p. 105. ‘

On train from state to. state
carrying no traffic, p. 85.

On work trains, p. 620.

Operating handcar for upkeep
and repair of tracks, p. 70.

Operating steam shovel, p. 70.

Preparing engine for interstate

train, p. 88.
Preparing engine to go out, p.
102.

Preparing ice for interstate train,
p. 88.

Preparing interstate trains to go
out, pp. 88-91.

Removing bolts from bridge tim-
ber, p. 72.

Removing coal from storage, p.
92.

Removing empty cars to replace
by interstate cars, p. 99.

Removing engine to attach to in-
terstate train, p. 89.

Removing old rails, p. 72.

Removing rubbish from bridge
abutment, p. 72.

Repairing boiler of wrecking
train, p. 81.

Repairing bridges, p. 72.

Repairing cars in shops, p. 79.

Repairing cars in transit, p. 82.

Repairing cars set aside, p. 83.

Repairing engine in roundhouse,
p. 79.

Repairing engine of work train,
p. 81.

Repairing engines in yard, p. 79.

Repairing freight sheds and
roundhouses, p. 74.

Repairing instruments of com-
merce, pp. 66-68.

Repairing intrastate car, p. 43.

Repairing locomotive © between
trips, p. 83.

Repairing main line, p. 69.

EMPLOYER AND EMPLOYEE,

cont'd.

Employee engaged in interstate com-

merce, cont'd.

Repairing pumphouse, p. 74.

Repairing switch in yards, p. 69.

Repairing telegraph line, p. 73.

Repairing tracks, bridges, etc.,
pp. 68-76.

Repairing tracks in yards, p. 69.

Repairing turntables, p. 69.

Repairs, time necessary for, as
affecting question, p. 79.

Riding on handcar to place for
work, p. 112.

Riding on train to place for work,
p. 112.

Running engine from state to
state for purpose of repairs,
pH. Bh.

Setting switches to change work,
p. 107.

Shoveling dirt between ties, p. 70.

Supplying materials for indis-
criminate use, p. 91.

Sweeping snow from switch, p.
69.

Switching car at terminal, p. 97.

Switching cars, p. 94.

Switching cars at points on run,
p. 94.

Switching cars for ' interstate
transportation by boat, p. 94.
Switching cars in storage, p. 100.
Switching cars in yards or be-
tween local points, pp. 97-100.
Switching cars out of interstate

train, p. 96.

Switching cars placed on side
track for repairs, p. 100.

Switching cars to make up train,
p 2S,

Switching cut of cars some in-
terstate, p. 98.

Switching cut of cars some in-
terstate, one employee on in-
trastate, p. 98.

Switching defective car out of
interstate train, p. 98.

Switching empty cars between
local points, p. 97.

Switching empty car to return
to connecting carrier, p. 88.
Switching engine to be placed in

roundhouse, p. 97.

Switching interstate cars, p. 98.

Switching local cars left by in-
terstate train, pp. 95, 100.

Switching or breaking up trains
at terminals, p. 96.

Switching train to regular rest-
ing place, p. 97.

Transferring freight at inter-
mediate points, p. 96.

Transporting freight from boat
to cars, p. 17.
INDEX. 761

EMPLOYER AND EMPLOYEE,
cont'd,
Employee engaged in interstate com-
merce, cont'd.
Turning aside during employ-
ment, pp. 111-116.
Unloading paint to be used on
cars, p. 105.
Unloading rails from car at des-
tination, p. 104.
Visiting saloon, p. 116.
Waiting to go on duty, pp.
111-116.
Watchman at grade crossing, p.
103.
Wheeling coal to heat shop,
p. 78.
Working on vessels, boats, etc.,
p. 108.
Employee instrument of interstate
commerce, p. 2.
Employer engaged in interstate com-
merce:
See “Commerce.”
Engagement in interstate commerce:
Agency inflicting injury may be
intrastate, p. 19.
Both must be, p. 4.
Includes all parties possible, p. 18.
Need not be same act, p. 19.
Under Safety Appliance Act, p.
529.
Engagement in intrastate commerce,
p. 42.
Reliance on violation of federal
act as negligence, p. 142.
Existence of relation:
Contracts to show, p. 312.
Effect of joint employment, pp.

21, 94.

Employee loitering on premises,
p. 21.

Employee making toilet on

premises, p. 22.
Employee subject to call, p. 21.
Employee transported to and
from work by company, p. 22.
Employee walking to and from

work, p. 22.
Express agents, pp. 21, 108.
Express messenger handling

baggage for railroad, p. 110.
Express messengers, p. 109.
Defendants joint tort feasors,

p.» 21.

Independent contractor, p. 25.
Necessity of, pp. 20, 53.
Proof of, p. 303.
Pullman employees, p. 109.
Reporting ahead of time for
service, p. 623.
Volunteers, p. 23.
When deemed to exist, p. 21.
Fellow servants:
See “Fellow Servants.” 7
Vice-principal when assuming to
give orders, p. 148.

EMPLOYER AND EMPLOYEE,

cont'd.
Gross negligence, right to recover
for, p. 142.
Hours of Service Act:
Change in class of work, pp.

625-628.

Commencement of service, p.
622.

Deadheading to or from work, p.
723.

Employee defined, 619.
Employees within, pp. 619, 724.
Going to and coming from work
as on duty, pp. 622, 723.
“On duty” and “off duty” defined,
p. 724.
Statutory definition, p. 721.
Liability for fellow servants:
Limited by scope of employ-
ment, pp. 148, 149.
Vice-principal, p. 148.
Liability for negligence:
See “Fellow Servants,” “Hours
of Service Act,” “Negli-
” “Safety Appliance

Not assumed when, p. 179.
Only liable for, p. 159.

Not on equal terms, p. 13.
Relation must exist to make act ap-
plicable, pp. 20, 53.

Safety Appliance Act:
Delegation of duty, p. 458.
Duty, p. 526.
Employees protected by, p. 527.
Engagement in interstate com-

merce not necessary, p. 18.

Unlawful acts of employee, lia-
. bility for, p. 457.

Scope of employment:
Act in violation of orders, p. 24.
Assisting other employees, p. 24.

Brakeman acting as fireman,
p. 24.

Going to and returning from
work, p. 22.

Imprudent or negligent act of
employee, p. 24.
Proof of, p. 303.
Student employee, p. 23.
Sufficiency of pleading to show,
p. 286.
To ask assistance of
Dp. 23:
Turning aside from work, p. 23.
Uncertainty of pleading, p. 283.
Volunteers, p. 23.
Terms in statute used in ordinary
sense, p. 21.
Willful injuries, right to recover for,
p. 142.

others,

ENGINES

See “Cars,” “Coupons,” “Safety
Appliance Act.”
762 INDEX.

ENGINES, cont'd. ENGINES, cont'd.

Admissibility of evidence of defect
in, pp. 312, 313.
Air brake equipments, p. 481.
Electrically propelled, p. 481.
AS cars, p. 489,
Assumption of risk:
Appreciation of danger of old
style lubricator on, p. 182.
Defects in, when just out of re-
pair shop, p. 180.

Failure to supply guard glass on
water gauge, pp. 184, 188.
Negligent operation of, p. 179.

Too wide for roundhouse door,
p. 181.
Using road engine for switching,
p. 188.
Boiler inspection act, pp. 727, 732.
Couplers required, p. 492.
Defective on one end, removed,
p. 493.
Drawbars required on, p. 508.
Electric motors, p. 508.
Duty to furnish under federal act, p.
142. ©
Employees on, when engaged in in-
terstate commerce:
Caring for engines generally, p.
102.
Cleaning flues, p. 94.
Filling tender with coal, pp.
89, 92.
Going to roundhouse for, p. 90.
Inspecting and oiling engine,
p» 39.
Inspecting for trial trip, p. 80.
Preparing for trip, pp. 88, 89,
102, 116.
Repairing between trips, p. 83.
Repairing engine of work train,
p. 81.
Repairing in roundhouse, p. 78.
Repairs, time necessary for, as
affecting question, p. 79.
Expert evidence on merits of differ-
ent types, p. 314.
Improper operation by conductor as
negligence, p. 129.
Integral with tender, p. 489.
Jumping from in emergency as con-
tributory negligence, p. 163.
Negligence in use of:
Using road engine for switching,
p. 133. :
When leaking steam, p. 133.
When worn and dilapidated, p.
133.
With improper crown sheets for
oil-burning, p. 133.
With insufficient glass indicator
tube, p. 133.
With old style lubricator, p. 133.
Safety appliances applicable, p. 504.

Use in interstate commerce:
Of one inflicting injury, p. 304.
Running from state to state for
repairs, pp. 85-86.
When use ceases, p. 97.

ESTATES

Excess over pecuniary loss as asset
of, p. 372.

Federal law providing distribution
contrary to state, p. 29.

Recovery not for benefit of, pp. 194,
219, 372.

EVIDENCE

Admissibility:
As rule of procedure, when rule
unsettled, p. 264.
Contradiction of pleading, p. 309.
Custom, p. 317.
Dependency of beneficiaries, p.
227. 5
Divorce, p. 224.
nee to employees, p. 580.
odels, p. 578.
Relation of parties, p. 312.
Reports under Boiler Inspection
Act, p. 342.
State rules determine, p. 262.
Under amendment of petition, p.
227.
Admissibility under issues, pp. 308-
311.
Abandonment of issues as with-
drawal of cvidence, p. 310.
Contributory negligence, pp. 299,
310.
Interstate commerce, pp. 44, 309.
Negligence, p. 310.
Validity of appointment of ad-
ministrator, p. 310.
Waiver by failure to object, p.
573.
Admission ‘by failure to reply, p. 330.
Appointment of personal representa-
tive:
Necessity of proof, p. 208.
Argument of counsel on:

Ability of defendant to pay, p.
406. :
Facts not in evidence, p. 407.

Failure to call witnesses, p. 406.
Father’s restraint of wayward
children, p. 406.
Assumption of risk:
Question for jury, p. 186.
Sufficiency to show knowledge,
p. 536.
When shown by plaintiff, p. 300.
Contributory negligence, admissibil-
ity to show:
Alighting from moving trains, p.
315. t
Care of employee, p. 315.
Custom of employees, p. 580.
Failure to obey signals, p. 315.
INDEX. 763

EVIDENCE, cont'd.

Contributory negligence, making
question for jury, pp. 161-166,
536, 541.
Under Safety Appliance Act, p.
586. :
Contributory negligence, sufficiency
to show: :
Failure to use automatic coupler,
p. 548.

Sleeping on track, p. 156.

Violation of rules, pp. 161, 307.
Cross-examination, p. 322.

Limitation by direct examina-

tion, p. 323.
Questions calling for opinion, p.
323.

Damages, admissibility to show:
Chance for promotion, pp. 318,
320.
Character and habits of em-
ployee, p. 320.
Expert testimony, p. 375.
Expert testimony of result of in-
juries, p. 319.
Income tables, p. 320.
Injury to taste and smell, p. 311.
Interest tables, p. 375.
Limitation by first trial, p. 311.
Limiting to issue, p. 318.
Mortality tables, p. 320.
Of pain, suffering and mental
anguish, p. 317.
Trade or ‘business of plaintiff, p.
318.
Wages received, p. 318.
X-ray photographs, p. 320.
Demurrer to:
As questioning capacity of party
plaintiff, p. 215.
Dependency:
Held sufficient to show, p. 223.
Necessity to show, p. 221.
Question for jury, p. 224.
Sufficiency to show, p. 383.
Direction of verdict:
Governed by state law, p. 263.
Under Safety Appliance Act, p.

593.
Harmless refusal or admission, pp.
317, 578. '
Identification with bill of exceptions,
p. 416.
Impeachment of verdict by jurors, p.
409.

Incrimination by report of excessive
hours of service, p. 648.
Inferences from failure to call wit-
nesses, p. 346.
Instructions ignoring, p. 592.
Interstate commerce, admissibility to
show:
Character of
loaded, p. 311.
Character of freight on train, p.
a1i.

engine being

EVIDENCE, cont'd.

Interstate commerce, admissibility to
show, cont'd.
Copies of records, p. 312.
Duty of train crew, p. 311.
Employee investigating accident,
p. 579.
Harmless, p. 20.
Over objection, p. 309.
Records, pp. 311, 579.
Statements of employees, p. 311.
Under res geste rule, p. 312.
Without objection, p. 309.
Interstate commerce, making ques-
tion for jury, pp. 107, 288, 327.
Interstate commerce, sufficiency to
show, pp. 44, 117, 275, 824, 587.
Admission by pleading, p. 326.
Car’s destination indicated by

chalk, p. 325.
Cleaning up around coal bin, p.
325.

Employee in yard, p. 325.
Employee loading rails, p. 325.
Employee on train with inter-
state shipments, p. 325.
Indiscriminate service shown, p.

326.

Loading tender of interstate
train, p. 326.

Switching cars for immediate

transportation, p. 326.
Under Safety Appliance Act, p.
585.
Judicial notice, p. 648.
Charter of railroad, p. 307.
Geographical points, p. 307.
Interstate character of cars, p.
307.
Of statutes, pp. 270, 307, 570, 578.
Jurors examining models not in, p.
578.
Limitation to issues, p. 318.
Motion to exclude, p. 340.
Negligence, admissibility to show:
Defects in engine, pp. 312, 313.
Excessive speed, p. 313.
Expert testimony, p. 314.
Knowledge, p. 312.
Origin of fire, p. 313.
Photographs, p. 314.
Prior condition, pp. 312, 580.
Reputation of employees, p. 313.
Sudden starting of engine, p. 313.
Under res geste rule, p. 314.
Unsafe custom of loading cars,
p. 313.
Negligence, making
jury:
Cinder pile along track, p. 135.
Defective couplers, p. 502.
Engineer dropping pile, p. 129.
Engine leaking steam, p. 133.
Failure to have cars coupled, p.
130.

question for
764

EVIDENCE, cont'd.
Interstate commerce, admissibility to
show, contd.
Leaving jack on
floor, p. 137.
Maintaining open pit in round-
house, p. 137.
Operation of trains at excessive

roundhouse

speed, p. 130.

Pipe or water crane hard to ad-
just, p. 135.

Placing standpipe near track, p.
137.

Proximate cause of injury, p.
532.

Unsafe lubricator, p. 133.
Using coal chutes not properly
balanced, p. 135.

Using old style lubricator on
high pressure boiler, p. 134.
Using road engine for switching,

pp. 133, 136.
Using worn and dilapidated en-
gine, p. 133.
Violent movement of cars, p. 130.
Negligence, sufficiency to show:
Accident alone, p. 331.
Circumstantial, p. 327.
Collapse of bridge, p. 328.
Collision, p. 328.
Conjectural, pp. 331-332, 588.
Connection with injury, p. 139.
Defect in air brakes, p. 481.
Defective coupler, p. 497.
Derailment of car, p. 328.
Employer in exclusive control,
p. 333.
Following federal rule, p. 334..
Platform knocked off car, p. 132.
To permit directed verdict, p.

131.

Top of car not properly secured,
p. 132.

To reasonable satisfaction of
jury, p. 332.

Under doctrine of last clear

chance, p. 329.
Objections and exceptions:
See “Objections and Exceptions.”
In general, pp. 240-241.

Sufficiency to assign error, p.
341.

Pecuniary loss, admissibility to
show, p. 375.

Daughter an invalid, p. 321.

Earning capacity, health, habits,
etc., p. 321.

Engagement of widow to be re-
married, p. 322.

Funeral expenses, p. 322.

Mortality tables, p. 322.

Receipt of insurance money by
wife, p. 322.

Relations existing between hus-
band and wife, p. 321.

Separation from husband, p. 322.

INDEX.

EVIDENCE, cont'd.

Pecuniary loss, sufficiency to show,
pp. 373, 380.

Question for jury, p. 222.
Personal examination of plaintiff, p.
- 820.

Positive and negative testimony, p.
582.
Prejudice in rulings on, p. 416.
Preponderance of, defined, p. 584.
Presumption and burden of proof,
pp. 303-307.
Existence of dependent bene-
ficiaries, p. 225.
Failure of proof, p. 274.
Interstate commerce, pp. 326,
587.
Negligence from injury, p. 121.
Negligence of defendant in fur-
nishing engine, p. 142.
Presumptions created by plain-
tiff’s evidence, p. 264.
Safety Appliance Act, p. 583.
State laws changing burden, p.

263. .
State laws creating presump-
tions, p. 263.

Question for jurv:
Damages as result of injuries, p.
367.
Engagement in interstate com-
merce, p. 327.
Submission when not prejudicial,
p. 420. :
Requiring disclosure by defendant, p.
417.
Res ipsa loquitur:
See “Res Ipsa Loquitur.”
Review on appeal, pp. 425, 599.
By federal, supreme court, p. 437.
Reduction to narrative form, p.
59%.
Rules and orders, admissibility to
show:
Expert testimony of, p. 315.
Parol evidence of printed rules,
p. 315.
Rulings on:
As federal controversy, p. 603.
Showing interstate commerce, ex-
cludes state law, pp. 48, 215.
Striking, p. 309.
Sufficiency:
Circumstantial as showing proxi-
mate cause of injury, p. 140.
Direction of verdict or submis-
sion to jury in general, p. 323.
To rebut prima facie case, p. 330.
To recover penalty, p. 583.’
To show relation of employer
and employee, p. 109.
Sufficiency to take question to jury:
Following federal rule, pp. 263,
334,
Time of injury, p. 329.
Time of introduction, p. 311.
INDEX.

EVIDENCE, cont'd.
Variance, p. 589.
See “Variance.”
Action under the state law but
federal law applicable, pp. 203,
298.
As to time of injury, p. 329.
Federal law pleaded, submission
under state law, p. 273.
Pleading one law evidence show-
ing another, p. 274.
Waiver:
See “Waiver.”
In general, pp. 340-342.

EXCEPTIONS

See “Objections and
tions,” ‘‘Provisos.”

EXPENSES

See “Damages,”
penses.”
Damages for, p. 364.

EXPERT TESTIMONY

See “Evidence,” ‘“ Witnesses.”
Automatic couplers, p. 314.
Comparative merits of engines, p.

314,
Competency of witnesses, p. 343.
Construction of cinder pits, p. 314.
Cross-examination, p. 322.
Damages to plaintiff, p. 319.
Personal examination of plain-
tiff, p. 320.
Determination of present cash value
of award, p. 375.
Genuineness of copy, p. 316.
Rules and orders, p. 315.
Under Safety Appliance Act:

Couplers, p. 579.

Openings on cars as equal to

handholds and grab irons, p.
579.

EXPRESS AGENT

Employee of railroad, pp. 54, 108, 109.
Employment in interstate commerce:
Removing package from grounds

to depot, p. 111.

EXPRESS COMPANIES

Transporting goods for, as engage-
ment in interstate commerce, p.
469.

FEDERAL CONTROVERSY

Amendment of pleadings, pp. 435,
603.
As ground for removal, p. 247.
Claiming exclusiveness of federal
law, pp. 433, 434.
Construction of statute, p. 433.
Decision on non-federal ground,
pp. 433, 602.
Denial of appeal, p. 436.

Excep-

Ex-

“Funeral

765

FEDERAL CONTROVERSY, cont'd.

Exclusion of evidence, p. 435.
Frivolous contentions, pp. 432, 603.
Holding case not within act, p. 435.
Jurisdiction of courts, p. 603.
Limitation of recovery by state stat-
ute, p. 437.
Misleading instructions on assump-
tion of risk, p. 434.
Presentation in court below, pp. 352,
413.
Appearance in pleading, p. 429.
Appearance in record, pp. 429,
430. :
Decision by state court, p. 431.
Demurrer to evidence as show-
ing, p. 429.
General exception to charge, p.
B58.
Instruction upon construction of
statute, p. 600.
Statement by
writ, p. 430.
Sufficiency of claim, p. 429.
Questions concluded by decisions, p.
432.
Refusal of instructions, p. 432.
Refusal of removal as presenting, p.
601.
Release of liability, p. 436.
Ruling on question of procedure, p.
435.
Ruling on relation of master and
servant, p. 435.
Ruling on scope of employment, p.
435.
Rulings on evidence, p. 603.
Time for setting up, p. 432.

FEDERAL LAWS
See “State and Federal Laws.”

FELLOW SERVANTS

See “Assumption of Risk,” “Em-
ployer and Employee,” “Negli-
gence.”

Abolition of rule of, pp. 118, 144-146.

Power to abolish, p. 3.

Principal object of act, p. 145.

Violation of due process clause,
p- 30.

Assumption of risk:
Concurring with other negligence
of defendant, p. 186.
Does not extend to negligent act
of, p. 180.
Habitual negligence of, p. 181.
Insufficient number as question
for court, p. 189.
Isolated act of negligence, p. 183.
Knowledge of customary negli-
gence, p. 183.
Under contract, p. 146.
Becoming vice-principal by assuming
to give orders, p. 148.

judge granting
766

FELLOW SERVANTS, coni’d.

Common law rule of, considered ar-
chaic, p. 13.
Concurrent negligence of, under
Safety Appliance Act, pp. 527, 530.
Instructions covering liability for
negligence of, p. 357.
Liability for negligence of, p. 129.
Giving incorrect information as
to location of car, p. 147.
Injury while wrestling, p. 119.
In making inspection, p. 148.
In manner of unloading rails, p.
148."
Instructing employee to do pro-
hibited act, p. 149.
Necessity that servant be hired
to perform negligent act, p. 149.
Question for jury, p. 148.
Under Safety Appliance Act, p.

530.
When going to and from work,
pp. 112, 149.

When poling car, p. 147.
Within scope of employment, p.
149.
Negligence of, no bar to recovery,
p. 144.

Pleading negligence of:
Concurrent negligence, p.
Violation of rules, p. 284.

Right to join as defendants, p. 268.

Rule of distinguished from assump-

tion of risk, p. 145.

Scope of employment:

Negligence of, limited to, p. 148.

Warning of imaginary danger as
within, p. 148.

Wrestling as within, p. 148.

Sole negligence of injured employee
not to be attributed to, p. 146.
Who are, within meaning of act, pp.

146-148.

Boiler maker and helper, p. 147.

Brakemen, p. 147.

Car-loaders, p. 147.

Conductor and brakeman, p. 147.

Conductor and flagman, p. 147.

Engineer and brakeman, p. 147.

Engineers, p. 147.

Federal courts determine, p. 146.

Hostler and engineer, p. 147.

Section foremen and members of
crew, p. 147.

Switch foreman and switchman,
p. 147.

FERRIES
See “Boats.”
Employees on under Hours of Serv-
ice Act, p. 724.
FIFTH AMENDMENT
Act as violating, pp. 30, 31.

284,

INDEX.

FIREMEN
Under Hours of Service Act:
Additional service as watchmen,
p. 526.

FIRES
Admissibility of evidence to show
origin, p. 313.

FLAT CARS

See “Cars.”
Safety appliances applicable to, p.
504,

FOREIGN PERSONAL REPRE-
SENTATIVE

See “Personal Representative.”
Right to sue in other state, pp. 211-
213.

FOURTEENTH AMENDMENT

Act as violating, p. 31.
Procedure when violative of, p. 243.
Refers only to state action, p. 32.
Violation by state courts:
When juries less than twelve ssid
verdict not unanimous, p. 240.

FREIGHT
Perishable:
Hauling cars containing, to re-
pair, p. 521.

FREIGHT SHEDS OR HOUSES
Employee repairing as engaged in in-
terstate commerce, p. 74.
Negligence in construction of door-
ways to, p. 137.

FUNERAL EXPENSES
See “Damages.”
Evidence of, p. 322.
GARDNER

Caring for station and grounds as en-
gaged in interstate commerce, p.
104.

GENERAL DENIAL

See “Evidence,” “Pleading,” “Plea
or Answer.”
Raising question of law applicable,
p. 296.
Showing contributory negligence un-
der, pp. 299, 311.

GIFTS

As element of damage, p. 372.

Loss of, as pecuniary, p. 382.
GONDOLA CARS

Safety appliances applicable, p. 504.

GRAB IRONS

See “Cars” “Handholds, ” “Safety
Appliance Act.”
INDEX.

GRAB IRONS, cont'd.
Absence of from car as negligence,
p. 132.
Cars requiring. p. 504.
Expert testimony:
Showing openings equal to, p.
579.
Negligence in providing in absence
of statute, p. 132.
Other appliances affording equal pro-
tection, pp. 505-506.
Rulings of interstate commerce com-
mission, p. 503.
Statutory provisions, pp. 503, 657,
660.
Want of:
Requiring directed verdict, p. 593.

GROSS NEGLIGENCE

Distinction not to be made in degrees,
p. 142.
Liability for, p. 142.

HAND BRAKES

See “Air Brakes,” “Safety Appli-
ance Act.”
Cars requiring, p. 504.
Defective step to, as negligence, p.
132.
Equipment required, p. 488.
Cars combined to carry load, p.
503.
Ladders to reach, p. 504.
Rulings of interstate commerce com-
mission, p. 503.
Statutory provisions, pp. 503, 660.
Use in emergency, p. 488.
Use to control speed of train, p. 487.

HAND CARS

Assumption of risk in use:
Too heavy to handle by crew,
p. 184,
Falling from when putting on rain-
coat as negligence, p. 119.
Leaving on track contrary to rules
as contributory negligence, p. 163.
Negligent use of:

After day’s work as within scope’

of employment, p. 149.
Employee jumping from, p. 159.
Leaving on track, p. 135.
Operating at excessive speed, p.

131.

Operating to assist in upkeep and re-
pair of tracks as engagement in in-
terstate commerce, p. 70.

Operation of, close to train as proxi-
mate cause of injury, p. 139.

Riding on to work as engagement
in interstate commerce, p. 112.

HANDHOLDS

See “Grab Irons,” “Safety Appli-
ance Act.”
Cars requiring, p. 504.

767

HAND HOLDS, cont'd.

Employee protected by requirements
of, p. 528.
Expert testimony:
Showing openings equal to, p.
579.
Location, p. 504.
Negligence:
Failure to properly secure, p. 132.
Failure to provide in absence of
statute, p. 132.
Number, p. 504.
Object, p. 504.

Other appliances affording equal pro-
tection, pp. 505-506.
Rulings of Interstate
Commission, p. 503.
Statutory provisions, pp. 503, 657,

660.

Commerce

HEADLIGHTS

See “Commerce,” ‘Congress,”
“State and Federal Laws.”
State statute requires electric:
As interference with interstate
commerce, p. 462.

HOPPER CARS

Safety appliances applicable to, p.
504.

HOSTLERS

See “Employer and Employee.”
Authority to call assistance, p. 23.

HOURS OF SERVICE ACT

See “Congress,” “Defenses,”
“Employer. and Employee,’
“Evidence,” “Negligence,”

“Pleading,” “Statutes.”
“Act of God” defined, p. 639.
Agegrepate service, 629-631.
Appeal and error:
Extent of review, p. 652.
Objection in court below, p. 651.
Review of evidence, p. 652.
Assumption of risk abolished:
Employee must come under stat-
ute, p. 172.
Violation as proximate cause of
injury, p. 647.
Burden cf proof, p. 649.
“Casualty” defined, p. 639.
Changes in class of work:
Additional time in other employ-
ment, pp. 625-628.
Classes of employees, pp. 631-633.
Commencement of service:
Deadheading as on duty, p. 622.
Going to work, p. 622.
Reporting ahead of time, p. 623.
Common carrier defined, p. 619.
Compliance in all cases not to re-
quire, p. 607.
Conductors as operators, p. 631.
768 INDEX.

HOURS OF SERVICE ACT, cont'd. HOURS OF SERVICE ACT, cont'd.

Constitutionality, p. 608.

Arbitrary classification, p. 611.

Certainty of statute, p. 610.

Congress not limited to mechan-
ical appliances, p. 610.

Restricting liberty of contract,
p. 610.

Sworn monthly reports of viola-
tions, p. 611.

Construction:
Analogy with Safety Appliance
Act, p. 613.
Confining to actual movement of
train, p. 627.
Exceptions not to be engrafted,
p. 612.
Liberal construction, p. 613.
Offenses not to be engrafted, p.
613.
Remedial not penal, p. 613.
Weight of rulings of Interstate
Commerce Commission, p. 613.
Continuous service, pp. 629-631.
Employee subject to call, p. 625.
Temporary relief, p. 624.
Time for meals, p. 625.

Contributory negligence abolished:
Violation as proximate cause of
injury, p. 647.
Declaration, complaint or petition:
Amendments, p. 650.
Certainty of, p. 649.
Designating hours of service, p.
649.
Negativing provisos, p. 650.
Setting out orders of Interstate
Commerce Commission, p. 649.
Sufficiency to charge offense, p.
649.
Defenses:
Defects in engines, p. 643.
Delay from bad water, p. 644.
Delay in departure, p. 644.
Delays from unknown and un-
foreseen causes, p. 642.
Derailment of train, p. 641.
Heavy traffic and weather condi-
tions, p. 643.
Hot boxes, p. 643.
Reasonable care, p. 605.
Service against orders, p. 607.
Side tracking for other trains, p.
‘644,
Sudden illness of dispatcher, p.
641.
Unprecedented storm, p. 642.
Voluntary service of employee,
p. 607.
Waiting for delayed train, p. 644.
Duty to institute proceedings:
Statutory provisions, p. 722.
Duty to relieve when possible, p. 644.
“Emergency” defined, p. 637.
Employees defined, p. 631.

Employer and employee to whom ap-
plicable, p. 619.
Operating trains, p. 631.
Watering and feeding cattle, pp.
631, 647.
Enforcement by Interstate Commerce
Commission, p. 620.
Engagement in interstate commerce,
p. 619.
On work trains, p. 620.
Reliance on by plaintiff not en-
gaged in, p. 142.
Judgment:

Determination of amount, p. 651.

Rendition against receiver, p. 651.
Jurisdiction:

Statutory provisions, p. 722.
Limitation:

Statutory provisions, p. 722.
Movement of trains:

When on sidings, p. 627.

Nature of duty imposed:

Reasonable care, p. 605.
Objects and purposes, p. 605.
Offices:

Classes of, pp. 633-635.

Statutory provisions, p. 721.
Operators, who are, p. 631.

Switch tenders as, p. 632.
“Orders,” meaning of term, p. 633.
Penalties:

Number from violations, p. 651.

Statutory provisions, p. 722.
Periods of duty and recreation:

Statutory provisions, p. 721.
Pleading:

Admissions by demurrer, p. 650.
Plea or answer:

Necessity to plead provisos, p.

650.
Postponing operation of, object in,
p. 616.
Proceedings for penalty:

Nature of, p. 646.

Rules governing, p. 646.
Proximate cause of injury, p. 646.
Receiver as common carrier, p. 619.
Reports on violations:

Failure to make, p. 621.

Mistakes and omissions in re-

ports, p. 621.

Necessity to make, p. 621.
Rulings of interstate commerce com-

mission:
“Act of God” defined, p. 725.
“Casualty” defined, p. 725.
Deadheading to or from work,
p. 723.

District of Columbia, application
in, p. 724,

Emergency, must be real, p. 725.

Employees occasionally using
telephone, p. 723.

Employees within
724.

Ferry employees, p. 724.

statutes, p.
INDEX.

HOURS OF SERVICE ACT, cont'd.
Rulings of interstate commerce com-
mission, cont'd.

Offices continuously operated,
what constitutes, p. 725.

Offices operated in daytime, what
constitutes, p. 725.

On authority to enforce act, p.

726,

“On Duty” and “Off Duty” de-
fined, p. 724.

Operators performing other serv-
ice, p. 725.

Penalty against employer
employee, p. 726.

Periods when begun, p. 724.

Street-car companies, p. 723.

Terminal, what constitutes, p.
723.

Territories, application in, p. 724.

“Towers, Offices, Places and Sta-
tions” defined, p. 725.

Train baggagemen, p. 724.

Train employees sending or re-
ceiving orders, p. 726.

“Week” defined, p. 725.

Statutory definitions:

“Railroad” and

721.
Superseding state regulation, p. 11.

As supplementing’ federal act, p.
618.

During year before effective, p.
614.

Limiting state laws to intrastate
commerce, p. 616.

Operation of state laws, p. 614.

State laws as interference with,
616-617.

Time of taking effect. p. 618.
Statutory provision, p. 722.
“Unavoidable Accident” defined, p.

639.
Violation:
As negligence, pp. 141, 646.
Number of offenses from, p. 651.
Proximate cause of injury, p. 138.
To defeat assumption of risk and
contributory negligence must
tbe proximate cause of injury,
p. 173.
“Week” defined, p. 637.
Wrecking crews, p. 644.

HOUSE CARS
Safety appliances applicable to, p. 504.

ICE
On track as negligence, p. 135.

INDEPENDENT CONTRACTORS

As employee of railroad, p. 54.
Liability to under statute, p. 25.

INDICATORS
Negligence in furnishing,
Fed Act—49

not

“Employee,” p.

p. 133.

769

INDISCRIMINATE SERVICE
See “Commerce,” “Commingled
Service.”

INFANTS
Care required of, p. 150.

INSPECTION
See “Inspectors,” “Negligence,”
“Repairs,’ “Safety Appliance
Act:
Failure to make as negligence:
After storm, p. 136.
When employee charged with
duty, p. 122.
Imposed on fellow servant, liability
of railroad, p. 148.
Instructions on:
Distinction between failure to in-
“ spect and repair after inspec-
tion, p. 357.
Under Safety Appliance Act:
As defense, p. 479.
Imposing duty on employee, pp.
458, 514.
Nondelegable, p. 510.
Opportunity and failure to dis-
cover defects, p. 514.

INSPECTORS
See “Inspection.”
Contributory negligence:
Violation of rules by failing to
remove hand car from track,
p. 163.
Duty of government inspectors:
To inform company of defects,
p. 511.
To make identity known, p. 512.
When engaged in interstate com-
merce, p. 105.
Conductor inspecting train, p. 90.
Employee inspecting tracks, pp.
72-73.
Engineer inspecting engine for
trial trip, p. 90.
Testimony of:
Positive and negative, p. 582.
Weight and credibility, pp. 581-
582.

INSTRUCTIONS

Abstract, pp. 349, 592.

Applicability to issue, p. 348.
Enlarging on issues, p. 592.
Issues| precluded in former trial,

p. 348.

Matters not within, p. 355.
Assuming facts in dispute, p. 349.
Assumption of risk, pp. 360-363.
Comments on particular testimony,

p. 349.
Consideration of to be as a whole,
pp. 349, 359, 361, 591.
Charge on negative testimony, p.
351.
Limiting recovery to injury at
place alleged, p. 351.
770

INSTRUCTIONS, cont'd: :

Contributory negligence, pp. 358-360.
Defining proportion, p. 350.
Diminution of damages for, pp.
387-394,

Meaning of proportionate recov-
éry, p. 156,

Submitting in separate issues, p.
348.

Damages:

Comparing loss of children with
adults, p. 379.

Consideration as a whole, p. 372.

Diminished earning power, p.
366.

Diminution for contributory neg-
ligence, p. 387.

Failure to request on, p. 388.

Future effects of injury, p. 368.

Limited to amount claimed in
petition, p. 370.

Limited to pecuniary loss, pp. 371,
372, 373.

Loss of time and- diminished
earning power, p. 367.

Pain and suffering and mental
anguish, p. 367.

Pecuniary injury to children, p.
378.

Probability of contributions, p.
380.

‘To parents, p. 382.

To widow, p. 376.

Waiver by failure to request, p.
372.

Denying federal right, p. 601.

Duty of court to correct:

Erroneous request, p. 350.
Governed by state law, p. 263.
Embracing inconsistent propositions,

p. 349.
Erroneous, giving by request of los-
ing parties, p. 591.
Exceptions and objections to, pp. 352-
355.
Presenting question on appeal,
p. 353.
Failure to submit all issues, p. 417.
Favorable to party complaining, p.
354.
General hypothetical charge as error,
p. 352.
Ignoring evidence, p. 592.
Inconsistency of request for applica-
tion of state or federal law, p. 45.

Inconsistent propositions:

Case under state or federal law,
p. 352.

Inspection and repair, p. 357.

Joint defendants:

When one not guilty, p. 358.

Law governing case, p. 351.
Effect when wrong, pp. 354, 355.
Necessity of request, p. 592.
Modification bw court, p. 362.

INDEX.

INSTRUCTIONS, -cont’d.

Negligence, pp. 355-358.
Care required, p. 356.
Error cured by giving other in-
structions, p. 360.
Presumption of compliance with
rules, p. 357.

Sole cause of injury, p. 360.
Negligence of fellow servants, p. 357.
Reading pleadings, p. 348.

Referring to pleadings, p. 592.
Refusal:
As federal question, p. 432.
Prejudice to defendants by, p.
209.
When harmless, p. 417.

Request:
As binding to theory of case on
appeal, p. 422.
As objection to capacity of party
plaintiff, p. 216.
As waiver of objection, p. 363.
Covered by charge as a whole,

p. 351.

Duty of court to modify, p. 350,
362.

Duty of party to make, pp. 350,
362.

Embracing two propositions, p.
362.

On issues eliminated ‘by amend-
ment, p. 350.

On special points, p. 592.

Too general in terms, p. 363.
Sufficiency in general, p. 348.
Under Safety Appliance Act, p. 592.
Value of positive and negative testi-

mony, pp. 581-582.

Waiver of federal law:

By failure to submit, p. 414.

INSURANCE

See “Contracts,”
Receipt of money:
To diminish pecuniary loss, p. 322.

INTENT

See “Hours of Service

“Safety Appliance Act.”

As defense to violation of Safety Ap-
pliance Act, p. 454.

INTERCHANGEABLE
MENT

“Set-Off.”

Act,”

EQUIP-

See ‘Cars,” “Couplers,”
Appliance Act.”
Statutory provision, p. 657.

“Safety

INTEREST
See “Damages,” “Judgment,”
“Verdict.”
Admissibility of tables in evidence,
p. 375.

Consideration in determining pecu-
niary loss, p. 374.
INDEX.

INTEREST, cont'd.

Rate to control in determining
award, p. 375.
INTERROGATORIES

See “Verdict.”
Framing for special finding, p. 592.
Sufficiency of answer, p. 592.

INTERSTATE AND INTRASTATE
: COMMERCE

See “Commerce,” “Congress,”
“Hours of Service Act,” “Safety
Appliance Act.”

INTERSTATE COMMERCE COM-
MISSION

Authority to enforce Safety Appli-
ance Act:
Statutory provisions, p. 662.
Designating safety appliances:
Additional time for compliance
with orders, pp. 658, 664, 698,
700.
Plates illustrating, pp. 703-720.
Statutory provisions, p. 661.
Statutory provisions extending
time for compliance, p. 658.
Time orders effective, p. 664.
Under Act of 1910, p. 664.
Duty to furnish information, statu-
tory provisions, p. 658. ©
Violation of .Safety Appliance

Act, p. 553. 7
. Enforcement of Hours of Service
Act:

Authority, p. 620.
Reports on violations, p. 620.
Rulings on act, p. 726.
Statutory provisions, p. 722.
Fixing height of drawbars, pp. 507,
663.
Fixing percentage of air brakes, p.
663.
Increase in percentage of air brakes:
Statutory provisions, p. 660.
Judicial notice of orders, p. 648.
Refusal to make reports to, incrim-
inating, p. 648.
Rulings as construction of statutes,
p. 613. |
Rulings on the Hours of Service Act:
Application to street-car com-
panies, p. 723.
Employee deadheading as on
duty, p. 723.
Operators’ occasional use of tele-
phones, p. 723.
Terminal, what
723.
Statutory authority:
Designating grab irons and hand-
holds, p. 658.
Fixing height
658.

constitutes, p.

of drawbars, p.

771

INTERURBAN LINES

See “Railroads.”
Application of Safety Appliance Act
to, p. 470.
Use of cars on, in interstate com-
merce, p. 476.
When engaged in interstate
merce, pp. 64, 86.

INTERVENING CAUSE

‘See “Proximate and Concurrent
Cause.”

JOINDER OF ACTIONS

See “Actions,” “Pleading.”
Right to join under state, federal and
common law, pp. 254-255.

JOINT LIABILITY

See “Actions,” “Contracts,” “De-
fendants,” “Negligence.”
Right to show contract void as to

joint tort feasor, p. 54.
Under traffic arrangement for con-
current negligence, p. 140.

JUDGMENTS

See “Appeal and Error,” “Hours
of Service Act,” “Res Adjudi-
cata,” “Safety Appliance Act,”
“Verdict.”

Adding inte1est to, p. 395.
Adoption of proceedings
208.
Directing notwithstanding verdict, p.
593.
When defendant not negligent,
. 158.
When defendant’s negligence not
proximate cause of injury, p.
161.
Federal statutes, operation on prior,
p. 727
Former judgment as res adjudicata,
pp. 302, 209-211.
Effect of limitations, p. 210.
Identity of parties in actions, p.
209.
Judgment under state law sub-

com-

after, p.

sequent action under act, p.
209.

When dismissed without preju-
dice, p. 210.

Mandamus can not control, p. 257.
Nonsuit as res adjudicata, p. 404.
For injuries as bar to a tion um
der contract, p. 58.

On appeal, p. 603.
Affirming judgment on certio-
rari, p. 604.
Dismissal or affirmance, p. 437.

Extent of binding on lower
court, p. 604.

Granting partial new trial, p.
439.
772 INDEX.

JUDGMENTS, cont'd. JURISDICTION, cont'd.

On appeal, cont'd.

Mandate to require compliance,
p. 604.

Modification to show ground of
rendition, p. 440.

Reinstatement after reversal, pp.
372, 438.

Remand for amendment, p. 439.

Remand for new trial, p. 439.

Requiring remittitur and affirm-
ance, pp. 440, 441.

Reversal for insufficiency of pe-
tition for revival, p. 194.
Ordering for want of jurisdiction, p.

403.
Penalty on affirmance, p. 438.
Questions concluded by decisions, p.
432.
Review of for penalties, p. 598.
Under Hours of Service Act:
Amount, p. 651.
Validity against receiver, p. 651.
Under Safety Appliance Act:
On each count, p. 596.
Upon removal of cause:
Right to question remand, pp.
256-257.

JUDICIAL CODE

Prohibition against removal in, pp.
246, 251.

JURIES

Competency of state courts as af-
fected by:
Verdict not unanimous, p. 241.
When less than twelve, pp. 240,
241.
Impeachment of verdict by mem-
bers ot, p. 409.
Less than twelve:
Denial of due process of law, p.
240.
Misconduct:
Examining models not in evi-
dence, p. 578.
Quotient verdict, what constitutes, p.
409.

JURISDICTION
See “A ppeal and Error,”
“Courts,’ “Hours of Service
Act,’ “Removal of Cause,”
“Safety Appliance Act,”
“Venue.”

Admiralty of federal courts, p. 235.

As federal controversy, p. 603.

Dismissal for want of, p. 403.

Doubtful, court determines against,
p. 259.

Existence of beneficiaries as jurisdic-
tional fact, p. 225.

Federal courts, pp. 233-235.

Concessions to give, p. 234.

Federal courts, contd.

Not exclusive prior to act of
1910, p. 237.
Pleading statutes to give, p. 270.
Presentation of federal contro-
versy, p. 234.
Presumption of, p. 234.
Showing engagement in inter-
state commerce, p. 234. ;
Federal courts on appeal:
Trial without jury, p. 598.
Federal supreme court:
Amount in dispute, p. 427.
Claim and denial of federal
right, p. 429.
Constitutional question, p. 426.
Construction of treaty, p. 426.
Extent of review, p. 436.
Federal controversy, pp. 427,
433.
Federal controversy, necessity
of record to show, pp. 429-430.
From highest state courts, p.
600.
Jurisdictional grounds, p. 426.
Merits of claim from state court,
p. 432.
Presentation of federal contro-
“ versy below, pp. 430, 434, 435.
Questions concluded, p. 432.
Under Safety Appliance Act, p.
599.
Mandamus to compel exercise of, p.
257.
Objections in court below, p. 411.
Of territorial courts on admission to
statehood, p. 235.
On removal of cause, pp. 244-260,
559.
Erroneous order of removal, p.
256,
Not to be conferred by consent,
p. 258.
To determine removability, p.
200.
State courts, pp. 235-244.
Actions under state, federal or
common law, p. 237.
Constitutionality of grant of ju-
risdiction, p. 238.
Duty to take jurisdiction, p. 238.
Enforcing federal right follow
own procedure, p. 239.
Expressly conferred by act of
1910, p. 237.
Having jury of less than twelve,
pp. 238, 240, 241.
Hearing and determining similar
controversies, p. 244.
Power of congress over, p. 243.
Procedure does not affect, p. 243.
Receiving verdict not unani-
mous, p. 240, 241.
Refusal by declining to appoint
administrator, p. 238.
INDEX.

JURISDICTION, cont'd.
State courts, cont'd.
Refusal of, as
policy, p. 238.
Test of competency, p. 243.
Statutory provisions, pp. 656, 658.
Venue of actions, p. 261.
Waiver:
Objections to venue, p. 261.
Of transfer from ‘territorial to
federal court, p. 235.
Supreme court rulings distingu-

against public

ished, p. 259.
KNOWLEDGE
See “Assumption of Risk,”
“Hours of Service Act,”

“Safety Appliance Act.”
Admissibility of evidence to show,
p. 312.
Assumption of risk:
Absence of makes question -for
court, p. 189. :
Conditions known but forgotten
at time, p. 185.
Defects in cars being set aside
for repair, p. 536.
Instructions embracing, p. 361.
Principle element of, p. 180.
Question for jury, :p. 187.
Showing, to charge employee

with, p. 181.
Defense to Hours of Service Act,
p. 607.
Defense to Safety Appliance Act, p.
454.

Pleadings in cases under Safety Ap-
pliance Act, p. 567.

LADDERS

See “Cars,”
Act.”
Cars requiring, p. 504.
Required to reach hand brakes, p.
529,
Rulings of Interstate
Commission, p. 503.
Statutory requirements, pp. 503, 660.

LAST CLEAR CHANCE
See “Contributory Negligence,”

“Safety Appliance

Commerce

“Evidence,” “Negligence.”
As admission of contributory negli-
gence, p. 161.

LESSOR AND LESSEE
Employee of lessee as engaged in
interstate commerce, p. 279.
Lease of intrastate road to interstate
carrier, p. 66.
Liability for negligence between, p.
143.

LICENSES
Engineers in interstate commerce:
Right of states to require, p. 461.

773

LIFE EXPECTANCY

“Damages,”
Loss.”
Damages limited to, p. 377.

LIMITATIONS

See “Actions,” “Amendments,”
“Declaration, Complaint or
Petition,” ‘Pleading.”

Accrual of action, pp. 230, 231.

Dependent upon appointment of
administrator, p. 230.

Amendments of pleading after, pp.
573-575.

Aider by plea or answer, p. 287.

As rule of procedure, p. 264.

Changing parties as new action,
p. 206.

Relating back to institution of
suit, pp. 292-293.

Waiver, p. 575.

Effect of state laws on, p. 231.

Is of right not remedy, p. 231.

Necessity of defendant to plead, p.
232. ,

Nonsuit and subsequent action after
period, p. 231.

Right to demur to declaration show-
ing, p. 232.

Statute itself determines, p. 232.

Statutory provisions on, pp. 654, 655,
656.

Stipulation to bring action after ex-
piration, p. 576.

Under act of 1906, p. 230.

Under act of 1908, p. 230.

Under Safety Appliance Act, p. 562.

LIS PENDENS
See “Actions,” “Defenses.”
As defense, pp. 300, 302.
Dismissal for, p. 403.
Striking plea of, p. 300.
LOCAL PREJUDICE
See “Removal of Cause.”
As grounds for removal, p. 249.
LOCOMOTIVES
See “Engines.”
LUBRICATORS

Assumption of risk:
Appreciation of danger in use, p.

“Pecuniary

182.
In use of old style, p. 181.
F Question for jury, p. 186.

Negligence in furnishing, p. 133.

MAIL CRANE
Negligence in placing too close to
track, ». 136.
MANDAMUS

Right to writ:
To compel remand of case to
state court, p. 257.
774 INDEX.

MANDATE
From federal
courts, p. 604.
MASTER AND SERVANT
See “Commerce,” ‘Congress,’
“Employer and Employee.”
MEALS
See > “Continuous Service,”
“Hours of Service Act.”
Employees at, as on duty, p. 624.
MENTAL ANGUISH
See “Damages.”
Evidence of, p. 317.
Recovery for by employee, p. 366.
MODELS
See “Couplers,” “Evidence,”
“Safety Appliance Act.”
MORTALITY TABLES
See “Damages,” “Evidence.”

NEGLIGENCE

See “Air Brakes,” “Assumption
of Risk,” “Bridges,” “Cars,”

supreme to_ state

“Commerce,” “Contributory
Negligence,” “Coupler,” “Cus-
tom,” “Employer and Em-

ployee,” “Engines,” “Evidence,”
“Hours of Service Act,” ‘“Plead-
ing,” “Safety Appliance Act,”
“Workmen’s Compensation
Act.” ,

Accidental injury:
See “Accident.”

Breaking of steam pipe, p. 118.

Failing to keep lookout, p. 118.

Handling ties, p. 118.

All actions for, covered by federal
act, p. 10.
Application of last clear chance, pp.
156, 329.

Admission of contributory negli-
gence, p. 161.

Stepping in front of moving
train, p. 157.

Assumption of risk does not extend
to; p, 179.

Concurring cause of injury, one
assumed, p. 186.

In manner of bringing cars to-
gether, p. 179.

In method of operating engine,
p. 179.

Assumption of risk of:

Continuance in employment with
knowledge and appreciation of
danger, p. 185.

Continuance in employment with
knowledge and without objec-
tion, p. 181.

Customary negligence of fellow
servants, p. 183.

NEGLIGENCE, cont'd.

Assumption of risk of, cont'd.
Dangers must be appreciated, p.
182.
Effect of complaint and assur-
ance of safety or promise to
repair, p. 185.
Isolated act of negligence, p. 183.
Not precluded by statute, p. 184.
Presumption of care of employer,
p. 183.
Question for court, pp. 188-189.
Question for jury, p. 188.
Boiler Inspection Act:

Nature of duty imposed, p. 727.
Burden of proof, p. 304.
Care required of employer, pp. 117-

122.
Employee sent back to flag
train, p. 156.

Failure to perform duty required
by state statute, p. 121.
Insurer, p. 121.
Reasonable care, p. 121.
To employee asleep on track, p.
156.
Classification by degrees not to be
made, p. 142.
Common law determines, p. 119.
Comparative distinguished from pro-
portionate, p. 155.
Concurrent cause of injury, pp. 138-

141.
See “Proximate and Concur-
rent Cause.”
, Apportionment when with act of
God, p. 141.
Drawbar breaking and employ-
ee’s failure to protect train, p.

161.

Sufficiency of pleading to. show,
p. 284.

Under Safety Appliance Act, pp.
527, 530.

Defects in cars, engines and appli-
ances, pp. 131-138.
Employee guilty of, as outside scope
of employment, p. 24.
Criminal act of employee, p. 301.
Evidence, admissibility of, pp. 312,
313, 314, 316.
Failure to give signal, p. 310.
Unsafe place to work, p. 310.
Violation of Safety Appliance
Act, p. 310.

Evidence, sufficiency to show, p. 324.
Collapse of bridge, p. 328.
Collision, p. 328.

Derailment of car, p. 328.

Leaving question in conjecture,
pp. 327, 282,

eo of direct evidence, p.
327.

Proof of accident alone, p. 331.

Proof of accident when em-
ployer in exclusive control, p.
Ban.
INDEX. 775

NEGLIGENCE; cont'd.
Evidence, sufficiency to show, cont'd.
Proof to reasonable certainty re-
quired, p. 332.
To rebut prima facie case, p. 330.
Under doctrine of last clear
chance, p. 329.
Federal courts determine common
law of, p. 120.
Furnishing and maintaining appli-
ances:
Care required in purchasing and
upkeep, p. 134.
Coal chute, or water crane hard
to operate, p. 135.
Duty to provide safest and best,
p. 134.
Lightning arresters on _ tele-
phones, p. 134.
Giving illegible orders, p. 128.
Guarding against dangers, p. 126.
Ordinary movement of trains, p.
127.
Injury, as prima facie negligence, p.
356.
Instructions on:
See “Instructions.”
Care required, p. 356.
Defining “ordinary care,’ p. 356.
Injury as prima facie negligence,
p. 356.
Matters not within issue, p. 355.
Of employee, when sole cause of
injury, p. 359.
Presumption of negligence from
injury, p. 356.
Keeping lookout for employees, p.
126.
Liability between lessor and lessee,
p. 143.
Liability for agent, p. 143.
Liability for injury on boat, p. 16.
Liability only for, pp. 48, 117, 158.
Liability under traffic agreement, p.
143.
Necessity to show to prevent appli-

cation of state compensation act,

p. 50.
No duty, no negligence, p. 122.
Not defined by act, p. 119.
Of employee: ‘
See “Contributory Negligence.”
Acting in violation of orders, p.
529.
As sole cause of injury, pp. 158,
159, 360.
Choice of ways, p. 150.
Duty for own safety, p. 127.
Employee unloading coal cars, p.
119.
Failure to keep lookout when on
track, p. 164.
Failure to look and listen in
crossing track, p. 359.
Falling from hand car when put-
ting on raincoat, p. 119.

NEGLIGENCE, cont'd.

Of employee, cont'd.

Going between cars, p. 164.
Going into roundhouse without
light, p. 164.
Infants, p. 150.
Jumping from train, p. 119.
Presumption of due care, p. 163.
Violating rules, pp. 163, 164.
When greater than that of de-
fendant, p. 154.
Of officers, agents and employees,
pp. 122-131.
Bridge crew knocking employee
of trestle, p. 131.
Combined with negligence of in-
jured party, p. 146.
Conductor improperly giving sig-
nals, p. 129.
Conductor improperly operating
engine, p. 129.
Failure to clear switch, p. 131.
Failure to warn, p. 147.
For collision, p. 131.
Foreman of repair crew in loos-
ening timber, p. 131.
In making inspection, p. 148.
In unloading rails, p. 148.
Limited by scope of employ-
ment, pp. 148, 149.
Not,to be assumed by contract,

p. 146.
Operating trains at excessive
speed, p. 131.

Permitting extraordinary and un-
usual movement of trains or
cars, p. 129.

Rule abolished, pp. 144-146.

‘Section foreman leaving shand
car in difficult place for re-
moval, p. 129.

Sudden stopping of trains, :p. 131.

Switchman’s failure to close
switches, p. 129.

Switchman’s failure to control
cars when other employee be-
tween, p. 129.

Train crew’s failure to repair
switch, p. 131.

What constitutes, p. 147.

Wrestling between, p. 119.

Operating trains and cars:

Clearing track for sidetracked
runaway car, p. 128.

Contrary to orders, p. 128.

Employee charged with knowl-
edge of movement, p. 127.

Excessive speed, pp. 128, 130.

Failure to couple cars during
switching movement, p. 130.

Failure to have air brake set, p.
128.

Failure to obey signals, p. 128.

Running into train ahead, p. 128.

Stopping train to avoid accident,
p. 128.
776 INDEX.

NEGLIGENCE, coni’d. NEGLIGENCE, cont'd.

Operating trains and cars, cont'd.

Switching cars without signal,
p. 124,
Unusual and extraordinary move-
ments, p. 130.
Pleading:
See “Pleading.”
Aider by answer, p. 286.
Sufficiency to show, pp. 283-286.
Presumption of, from injury, pp. 121,
356, 542.
Proximate cause of injury, pp. 138-
149.
See “Proximate and Concur-
rent Cause.”
When not applicable, p. 157.

Relation to interstate commerce, p. 4.
Resulting from agency of intra-

state commerce, pp. 5, 19.

Respecting cars:

See “Cars.”

Absence of grab irons, p. 132.

Defect in brake step, p. 132.

Defect in door, p. 132. :

Handholds not properly secured,
p. 132.

Improper loading, p. 132.

Platform knocked off, p. 132.

Tops not securely fastened, p.
132.

Respecting engines:

See “Engines.”

Improper crown sheets for oil-
burning, p. 133.

Insufficient glass indicator tube,
p. 133.

Leaking steam, p. 133.

Old style lubricator, p. 133.

Using road engine for switching,
p. 133.

Worn and dilapidated, p. 133.

Rules, failure to make and observe,

p. 123.

Observance of when customarily
violated, p. 124.

Sufficiency of pleading to charge,
p. 285.

When non-observance will avoid
accident, p. 124.

Safe place to work, pp. 119, 122.
After completion of work, p. 23.
Duty on employee, p. 122.
Leaving jack on _ roundhouse

floor, p. 137.
Open pit in roundhouse, p. 137.
Protecting or guarding approach
to premises, p. 138.
State courts follow doctrine of fed-
eral courts, p. 120.
State laws:
See “State and Federal Laws.”
Presumptions created by, pp. 263,
304.
Restriction or enlargement by,
p. 120.

State laws, cont'd.

Right to enact laws on, pp. 9, 50.
Shifting burden of proof, p. 304.
Superseded, p. 10.

Statutory provisions on, pp. 653, 654.

Time of injury, p. 329.

Tracks and roadbed, p. 135.

Bridge maintained by public au-

thority, p. 137.

Cinder pile on side of, p. 135.
Cinder platform near, p. 135.
Clinkers on, p. 185.

Doorways to roundhouse’ or

freight house, p. 1387.

Guard rails on bridges, p. 136.
Hand car permitted to remain

on, p. 135.

Ice on, from overflowing water

tower, p. 135.

Inspection and patrol of tracks,

p. 136.

Structures near, pp. 136, 137.
Switches, defective, unlocked and

open, p. 135.

Switches obscured by embank-

ment and trees, p. 136.

Timber ‘over, p. 137.

Too close together, p. 135.

Tree on side of, p. 135.
Tunnels, failure to light or guard,

p. 136.

Unevenness of, p. 135.
Worn rails on curve, p. 136.

Violation of statute:

See “Hours of Service Act,”
“Safety Appliance Act,”
“Statutes.”

Employee protected by statute,

pp. 527-530, 647.

In general, pp. 141-142.

Warning of danger, pp. 122, 124, 147.
Employees close to track, p. 125.
Height of bridge, p. 125.
Inexperienced employee, p. 124.
Nearness of tracks on barge, p.

126.

Obvious dangers, p. 124.

Pleadings, charging, p. 284.

Structure near track, p. 125.

Sufficiency of, p. 125.

Unknown danger, p. 124.

When between cars, p. 125.
Willful injuries, right to recover for,

p. 142.

NEW TRIAL

For excessive damages, p. 369.
Granting partial, p. 439.
Refusal of, review on appeal, p. 425.

NEXT OF KIN

See ‘Beneficiaries,’ “Damages,”
“Dependency,”, “Parties,”
“Plaintiff.”

Bastard children, p. 226.
INDEX. 777

NEXT OF KIN, cont'd.

Can not maintain action, p. 202.
If no personal representative, p.
203.
Under state law, evidence show-
ing interstate commerce, p.
203.
Changing capacity as plaintiff as
bringing new action, p. 206.
Dependency:
Necessity of, pp. 221, 383.
Pleadings must show, p. 225.
Sufficiency of. evidence to show,
p. 383.
Determined by state law, p. 228.
Elements of damage to, p. 383.
Foster parents, p. 229.
Pecuniary loss:
Necessity of, p. 219.
Necessity to allege, p. 226.
Recovery for, when wife, children or
parents survive, p. 218.
Review of decision by state court on,
p. 437.

NOTICE

See “Actions.”
Requiring notice precedent to suit,
pp. 55-56.
OBJECTIONS AND EXCEPTIONS
See “Appeal and Error,”

“Evidence,” ‘Instructions,”
“Waiver.”
Evidence:
Admission without objection, p.
340.

Sufficiency to assign error, p. 341.

Time for making, p. 340.
Instructions:

General exceptions, p. 353.

Necessity of, p. 352.

Sufficiency to present question on

appeal, p. 353.

Time for excepting, p. 352.
Necessity to make for review, p. 411.
Time of, to argument of counsel, p.

407.

To party plaintiff, pp. 213-216.

Waiver by failure to make, p. 300.

OBJECTS AND PURPOSES OF
ACTS

Abolishing assumption of risk, p. 536.

Common law considered archaic,
«. Ass

Barsrrnetion to effect, in Safety Ap-
pliance Act, p. 446.

Employer and employee not on equal
terms, p. 13.

Establishment of uniform legislation,
. 175.

Hele of Service Act, pp. 605-606.

Postponing operation of, p. 616.

In harmony with public opinion,

p: 14;

OBJECTS AND PURPOSES OF
ACTS, cont'd.
Of Safety Appliance Act, pp. 442,
521.
To include all parties possible, p. 18.

OFFICES
See “Hours of Service Act.”
Classes of, pp. 633-635.
Continuously operated, p. 725.
Defined, p. 725.
Operated during daytime, p. 725.
Statutory provisions, p. 721.

OPERATORS
See “Dispatchers.”

Character of offices, pp. 633-635.
Conductors using telephones, p. 631.
Copy operator in regular service, p.
633.
Employees occasionally using tele-
phone, p. 723.
Limit of service of:
Member of wrecking crew, p.
644.
Requiring performance of other
service, p. 725.
Statutory provisions, p. 721.
Station agents, p. 633.
Switch tenders using telephones, p.
632.

ORDERS

See “Hours of Service Act,”

“Rules and Orders.”
Hours of Service Act:

Employees handling, within law,
p. 724,

Meaning of term, p. 633.

Train employees sending or re-
ceiving, p. 726.

ORDINANCES
See “Negligence,” ‘Pleading.”
Setting forth when pleaded as negli-
gence, p. 286.

PAIN AND SUFFERING

See “Damages.”

Amount of damages recoverable for,
p. 398.

Apportionment of damages for, p.
386.

Proximate result of injury, p. 367.

Recovery by beneficiaries:
Separate item of damages, p. 370.
Recovery for by employee, p. 366. |
Recovery in same action for pecuni-
ary loss, p. 365.

Recovery when death instantaneous,
p. 365.

Review on appeal: .

Raised by peremptory instruc-

tion, p. 413.
778 INDEX.

PANAMA CANAL
Act extending to, p. 37.

PARENTS
See “Beneficiaries,” ‘Damages,”
“Dependency,” “Pecuniary
Loss.” ad

Amount of damages to, p. 398.
Pecuniary loss, p. 380.
Expectation after majority of
children, p. 382.
Necessity of, p. 219.
Presumption from death of child,
p. 381.
Prospective gifts and contribu-
tions, p. 382.
Society and companionship, p.
382.
Recovery as between natural and fos-
ter, p. 229.
Recovery for excluded where wife
or children survive, p. 218.

PARTIES

See “Actions,” ‘‘Beneficiaries,”
“Defendant,” “Next of Kin,”
“Personal Representative,”
“Plaintiff,” “Widow.”

Adoption of proceedings after judg-
ment by other, p. 208.

Ancillary administrator’s right to sue,
p. 213.

Change in as setting up new action,
p. 206.

Defendants:

Discontinuance of improper, p.
269.

Dismissal for fraudulent joinder,
p. 404.

Dismissal of improper, p. 268.

Employee as, p. 268.

Joining to prevent removal, p.
254,

Lessor, p. 269.

Misjoinder, when one not com-
mon carrier, p. 269.

Not common carriers, p. 268.

Federal act determines, p. 36.

Statutory designation of party to
sue controls, p. 204.

When statute designates others
excluded, p. 202.

Improper, when not prejudicial, p.

420.
In actions under Safety Appliance
Act, p. 553.
Insane:
Revival of action in case of, p.

193.
Manner of objection to:
By demurrer, p. 215.
By demurrer to the evidence, p.
215.
By objection to all evidence, p.
215.
By request for peremptory in-
struction, p. 216.

PARTIES, cont'd.

Objection and waiver as to:
Failure to plead, p. 213.
On appeal:
Curing defect by amendment, p.
423.
One of two defendants, p. 423.
Right to change, p. 423.
Plaintiffs:
See “Plaintiff.”
Right of personal representative to
sue in other state, pp. 211-213.
Similarity, of in actions under state
and federal act, p. 209.
Statutory provisions, pp. 653, 654.
Within protection of statutes, p. 527.

PASSENGER CARS

See “Cars.”
Safety appliance applicable to, p. 504.

PASSENGERS

Express agent presumed to be, p.
109.

PATH
See “Way.”

PECUNIARY LOSS

See “Beneficiaries,” ‘‘Damages,”
“Dependency.”

Admissibility of evidence to show, p.
320-322.

Apportionment of damages for, p.
386.

Confining to money, p. 373.
amages limited to, p. 371.

Defined, pp. 222, 372.

Dependent on legal liability, p. 372.

Earning power of award considered,
p. 371.

Election between, and pain and suf-
fering not required, p. 194.

Excess over to estate, p. 372.

From death of divorced father, p.
» 224,

Funeral expenses excluded, p. 373.

Interest on money awarded, p. 374.

Married children not dependent, ei
220.

Measured by earnings, less expenses,
373,

Necessity of:

To next of kin, p. 222.

To parents, p. 219.

To widow and children, p. 219.
Necessity to allege, p. 226, 282.
Presumption in case of widow and

children, p. 226.
Punitive elements excluded, p. 373.
Recovered in same action for pain
and suffering, pp. 194, 365.

Separation of husband and wife does
not preclude, p. 373.

To surviving parents, p. 380.
INDEX.

PECUNIARY LOSS, cont'd.
To widow:
Care and advice excluded, p. 376.

Companionship and association
excluded, p. 376.

PENALTIES

See “Hours of Service Act,”
“Judgment,” “Safety Appliance
Act,” “Verdict.”
Appeal for purpose of delay, p. 438.
Recovery under Hours of Service
Act:
Nature of proceedings, p. 646.
Number of, p. 651.
Rules governing, p. 646.
Relief by retroactive operation of
statutes, p. 522.

Review of judgment for, p. 598.

Violation of Hours of Service Act:
Determination of amount, pp.

646, 651.

Violation of Safety Appliance Act:
Duty imposed, p. 452.
Knowledge and intent, p. 455.
Nature of proceedings for, pp.

551-553.
Number of, p. 594.

PERIODS

See “Hours of Service Act.”
Continuous and aggregate service:
Distinct, pp. 629-631.

PERSONAL INJURIES

See “Damages,” “Evidence,”
“Pain and Suffering.”
Amount of recovery for, pp. 399-402.
Evidence of, p. 311.

PERSONAL REPRESENTATIVE

See “Actions,” “Administration,”
“Administrator,” “Amendments,”
“Parties,” “Plaintiff,” ‘Plead-
ing.”

Action must be brought by, pp. 202,
204.
Local law designating the bene-
ficiaries as plaintiff, pp. 200.
Administration necessary to secure
appointment, p. 199.
Adoption of proceedings by, after
judgment, p. 208.
Ancillary administrator’s right to sue,
p. 213.
Appointment for purpose of suit, p.
199.
Change to, on appeal, p. 423.
Commission on recovery, p. 386.
Competency as witness, p. 344..
Meaning of, p. 199.
Necessity of appointment for sole
purpose of suit, p. 200.
Making after judgment, p. 208.
Proof of appointment, p. 208.
Revival of action by, in case of death,
p. 193.

779

PERSONAL
cont'd,

Right to sue:

After suit under state statute, p.
209.

In other state, pp. 211-213.

Suit not brought by:
Time of objection, p. 214.

PHOTOGRAPHS

Admissibility in evidence:
To show negligence, p. 314.
X-ray, p. 320.

PHYSICIANS

Competency as experts:
Opinion on operation not per-
sonally performed, p. 343.
Osteopath, p. 343.
Competency as witnesses:

REPRESENTATIVE,

Confidential communications, p.
345.
Waiver of communications, to, p.
346.
PLAINTIFF
See “Parties,” “Personal Repre-
sentative.”
Action maintainable only by personal
representative, pp. 201, 204, 267,
268, 298.

Amendments of, as introducing new
cause of action:

See “Amendments,” ‘Plead-
ing.”
Personal representative to
é widow, p. 274.

Widow and next of kin to per-
sonal representative, p. 207.
Widow to personal representa-
tive, p. 207.
Assignee of claim as, p. 268.
Beneficiaries as parties, p. 298.
Waiver by answering to merits,
p. 298.
Change on appeal, p. 423.
Effect of improper party:
‘ Is failure to state cause of ac-
tion, p. 202.
Not a defect or want of legal
capacity, p. 202.
Questioned by peremptory in-
struction, p. 202.
Next of kin can not be, p. 202.
Proof of appointment of personal
representative, p. 208.
To bring action, pp. 48, 199.
Want of capacity:
Advanced on appeal, p. 412.
Time of objection, p. 214.
Widow can not be, pp. 204, 245, 267.

PLATFORM

See “Cars.”
Absence of from car as negligence,
p. 132.
780 INDEX.

PLEADING

See “Amendments,” ‘“Declara-
tion, Complaint or Petition,”
“Hours of Service Act,” “Lim-
itations,” ‘Parties,’ “Plea or
Answer,” “Removal of Cause,”
“Safety Appliance Act,” “Vari-
ance.”

Action under different laws, pp. 272,
281.

Election between, p. 571.

In separate counts, p. 254.

In single count, pp. 253-254.
Admissions by demurrer, p. 650.
Admission by failure to deny, p. 588.
Admission by failure to reply, p. 330.
Amendments, pp. 290-295, 573.

As rule of procedure when made
after limitations, p. 264.
Changing parties, pp. 205, 207.

Erroneous law set forth, p. 272.

On appeal, p. 294.

On remand, p. 294.

Original action by employee,
amendment by administrator,
p. 231.

Requiring statement in separate
counts, p. 289.

Right of trial court to permit, p.
227.

Showing pecuniary loss, p. 227.

State rules determine, p. 262.

To bring case under act, p. 47.

To conform to variance, p. 339.

Waiver, pp. 295, 573.

Beneficiaries must be alleged, pp. 225,

253, 282.

Remand to permit amendmen
p. 439.

Certainty:

Allegations of interstate com-
merce, p. 283.
Motion to make more certain, p.
283,
Of each count, p. 290.
Construction, as state procedure, p.
273.

Departures: 7
Admission in reply as, p. 287.
Waiver by answer, p. 295.

Dependency:

See “Dependency.”
Sufficiency of allegations of, p.

283.
Engagement in interstate commerce,
p. 277.
Allegations held insufficient, p.
278,

Allegations held sufficient, p. 279.

Character of agency inflicting in-
jury, p. 278.

Enlargement by stipulations, p.
576,

Failing to show, comes under
state law, p. 43.

Inferences from petition, p. 278.

In language of statute, p. 274.

PLEADING, cont'd.

Engagement in interstate commerce,
cont'd.

In territorial courts, p. 281.

Presumption of, from allegation,
p. 281.

Railroad operating between two
states, p. 281.

Repairing and maintaining road-
bed, p. 280.

Showing service in local yard, p.
280.

Switching cars in yard, p. 281.

Evidence, admissible under:

See “Evidence.”

Federal question:

Necessity to show for appeal, p.
429.

Fraudulent allegations to prevent re-
moval, p. 254.

Falsely basing action upon act,
p. 254,

Joining individual defendants, p.
254.

Giving jurisdiction to federal caurt,
p. 276.

Engagement by parties in inter-
state commerce, p. 234.

Presenting federal controversy,
p. 234.

Instructions applicable to, p. 348.
Joinder of actions, p. 287.

Failure to object, p. 290.

Under state and federal law, pp.
253-254, 266, :

Limitation of action:

Demur to declaration
expiration, p. 232.

Failure to show action brought
within, p. 230.

Showing action brought within
two years since appointment of
administrator, p. 230.

Stipulations effecting, p. 576.

Negativing defenses, p. 287.

Negativing proviso, p. 569, 570, 573.

Negligence, sufficiency to charge, pp.
253, 272, 284, 285.

Alternative charges, p. 284.

As question of procedure, p. 283.

Assumption of risk shown, p.
284,

Duty and violation, p. 284.

Failure to make and _ enforce
rules, p. 285.

General allegations, p. 283.

Injury resulting from one of two
causes, p. 284.

Knowledge of defendant, p. 284.

Scope of employment of fellow
servants, p. 286.

Setting forth ordinance violated,

showing

p. 286.

Violation of rule by fellow serv-
ant, p. 284.

Waiver by failure to object, p.
284,
INDEX.

PLEADING, cont'd.
Objection to capacity of plaintiff,
time of filing, p. 214. °
Parties:
’ Necessity to plead want of ca-

pacity, p. 213.

Necessity to state action in plain-

tiff, p. 213.

Pecuniary loss:

See “Pecuniary Loss.”
Amendment to show, p. 227.
Failure to object, p. 227.
Inferences from petition, p. 227.
Necessity to allege, p. 226.
Objections and waiver, p. 227.

Presumption of case under act, pp.
ats, S71,
Reference to, instructions, p. 592.
Removal of cause:
See “Removal of Cause.”

Requiring election between remedies,

pp. 265-267.
Revival, sufficiency of petition for, p.
193.

Showing case under statute, p. 274.
Though not pleaded, pp. 276-277.
Showing interstate commerce ex-
cludes state law, p. 43.
State practice in federal courts, p.
565.
Statutes, necessity to plead, 45, 46,
204, 570.
Actions in federal’ courts, p. 271.
Actions in state courts, p. 270.
Effect when erroneous, pp. 46,

* 272.
Proper practice to state facts,
pp. 46, 271.

To show release void, ip. 55.

Striking answer when harmless, p.

576.
Striking special defenses, p. 417.
Surplusage, striking out law inappli-

cable, pp. 272-273, 325.
Time of pleading federal law, p. 47.
Variance:

See “Variance.”

Pleading one law, evidence
showing another, pp. 45, 203,
274,

Under Safety Appliance Act, p.
589.

PLEA OF ABATEMENT
Necessity of, to case under state law,
p. 297,

PLEA OR ANSWER
See “Defenses,” “Pleading.”
Admission by failure to reply, p. 330.
Aider to declaration, pp. 286, 291.
Alleging engagement in interstate
commerce, p. 297.
As estoppel to rely upon federal
act, p. 298.

781

PLEA OR ANSWER, cont'd.

Assumption of risk:
Necessity to plead, p. 300.
Sufficiency of pleading to show,
p. 300.
Contributory negligence:
As estoppel to rely on federal
act, p. 298.
Availability under general issue,
p. 299.

Necessity to plead, pp. 262, 299.
General denial:

As raising question of applicable

law, p. 296.
Lis pendens:

Striking plea of, p. 300.
Necessity to plead limitation, p. 232.
Necessity to plead want of capacity

in plaintiff, p. 213.
Necessity to set out act, p. 296.
Plea to action under state law:
Failure to deny in answer, p.
297.

Time of interposing plea, p. 297.
Setting up act as defense, p. 295.
Venue, necessity to plead, p. 300.

POLICE POWER

By states in absence of action by
congress:
Failure of congress to exercise
power, p. 35.
Restricted action by congress, p.
459,
Encroachment upon general federal
powers, p. 8.

Of states, under federal constitu-
tion, p. 8.

Safety Appliance Act as interference
with, p. 443.

When exercised by congress, p. 2.

PORTO RICO
Act extending to, p. 37.
Application of Safety Appliance Act
in, pp. 37, 462-463.

PRESUMPTION

See “Burden of Proof,”
dence.”

Action brought under act, p. 275.
Created by state laws, pp. 263, 304.
Due care of plaintiff:
Overthrown by own evidence, p.
307.
Engagement in intrastate commerce,
pp. 326, 423, 472, 587.
Failure to produce records, p. 347.
Failure to produce witness, p. 346.
Inadequate damages results from con-
tributory negligence, p. 423.
Issue found favorable to prevailing
party, p. 423.
Negligence from injury, pp. 356, 542.

“Evi-
782

PRESUMPTION, cont'd,

Of regularity of proceedings on ap-
peal, p. 597.
Pecuniary: loss:
To parents, p. 381.
To widow and children, p. 373.
Prejudice on appeal, p. 421.
PROCEDURE
Admissibility of evidence:
To determine value of income,
p. 375.
Amendment of pleadings:
State rules must be
and settled, p. 264.
Stating action after
p. 264.
Burden of proof as, p. 304.
State laws changing, p. 263.
Competency of witnesses, p. 343.
Defeating substantive right, p. 311.
Does not affect jurisdiction, p. 243.
Effect of, changing terms of statute,
p. 216.
Evidence in mitigation of damages
under pleading, p. 311.
Joinder of causes of action, p. 288.
Personal representative adopting
proceeding after judgment, p. 208.
Pleading:
Construction of declaration, p.
pie.
Sufficiency, p. 283.
Power of congress over, p. 243.
Right to enlarge, p. 262.
Repugnant to federal statute, p. 288.
Review of questions of, 436.
Rulings on, as federal questions, p.

established

limitations,

435.

State rules as govering, pp. 239, 243,
262-263. :

Substantive rights not to be treated
as, p. 263.

Survival of action, pp. 191, 264.
Taking question from jury:
Following federal rule, p. 334.
Time of filing pleas, p. 215.
Trial by jury of twelve:
Is federal procedure, p. 944.
Not required in state courts, p.
244,
What constitutes:
Admission of testimony, p. 262.
Amendments of pleadings, p. 262.
Constitution of jury, p. 263.
Correction of instructions, p.
263.
Direction of verdict, p. 263.
Number of jurors to return ver-
dict, p. 263.
Sufficiency of evidence, p. 263.
Sufficiency of pleadings, p. 262.

PROVISO
See “Defenses,” “Hours of Serv-
ice Act,” “Pleading,” ‘Safety
Appliance Act.”

INDEX.

PROXIMATE AND CONCURRENT
CAUSE

See “Contributory Negligence,”
“Hours of Service Act,” “Neg-
ligence,” “Safety Appliance
Act.”

Assumption of risk from one of two
concurring causes, p. 186.

Concurrent cause, attributable to de-
fendant when natural, or an act of
God, p. 140.

Contributory negligence to defeat re-
covery must be sole cause of in-
jury, pp. 138, 156, 157.

Damages, as proximate result of in-
jury, p. 367.

Employee asleep on track, p. 156.

Failure of engineer to have air ad-
justed, injury resulting from act of
brakeman, p. 139.

Failure of flagman to protect train,
or conductor to see duty per-
formed, p. 139.

Failure to warn
knowledge, p. 138.

| Heavy boxes, insufficiency of crew
to handle, p. 138.

Intervening cause, p. 139.

Evidence must show connection
with injury, p. 139.

Excessive speed when switch
turned by trespasser, p. 139.

Must be independent of primary
cause, p. 139.

Question for jury, p. 139.

Lifting coal buggy from hole in floor,
p. 138.

Negligence must be, p. 138.

Not necessarily nearest in time and
place, p. 138.

Operation of hand car close to train.
stopped by woman on track, p. 139.

Overcrowded hand car, attempt to
catch employee putting on rain-

employee with

coat, p. 136.
Question for jury, p. 161.
When evidence’ circumstantial,
p. 140.

Statutory violation to defeat assump-
tion of risk and contributory neg-
ligence must be, p. 173.

Violation of Hours of Service Act,
pp. 138, 646.

Violation of Safety Appliance Act,

pp. 531-533.
Concurrent negligence of plain-
tiff to be disregarded, p. 152.

PULLMAN PORTER

See “Employer and Employee.”
Employee of railroad, pp. 54, 108.

PUMPHOUSE

Employee repairing as engaged in
interstate commerce, p. 74.
INDEX.

RAILROADS
See “Commerce,” “Common Car-
riers,” “Employer and Em-
ployee.”

Act limited to, p. 15.
Defined, p. 467.
Engagement in interstate commerce:
Agreement with connecting car-
rier, p. 468.
Hauling dead engine, p. 64.
Hauling empty cars, p. 64.
Hauling for itself, p. 65.
Intent to engage in, in near fu-
ture, p. 66,
Lines leased to interstate carrier,
p. 66.
Moving engine to repair, p. 64.
Transfer and belt companies, p.
469.
Transporting goods for manufac-
ture or sale, p. 64.
When employees engage in, em-
ployer does also, p. 66.
When making repairs to track,
p. 65.
When mining coal, p. 64.
When street railway used to
complete journey, p. 65.
Wholly within the state, pp. 63,
277, 467.
Interurban line as, p. 15.
Quasi public corporations, p. 14.
Statutory provisions on liability, pp.
653, 654.
Street railways as, pp. 15.
Under Hours of Service Act:
Statutory definition, p. 21.
Vessels as part of system, p. 16.

RECEIVER
As common carrier, p. 619.
Statutory provision, p. 655.
Validity of judgment against, p. 651.
RECORDS
See “Evidence.”
Admissibility, p. 312.

Admissibility to show interstate com-
merce, pp. 311, 579.

Inferences from failure to produce,
p. 347.
RELEASE

See “Gontracts,” ‘Defenses.”

REMITTITUR

See “Appeal and Error,” “Dam-
ages,” “Judgment,” “Verdict.”

REMOVAL OF CAUSE

Action under Safety Appliance Act,
p. 555.
Condition of pleadings to determine:
Amendment of, showing federal
question, p. 557.

783

REMOVAL OF CAUSE, cont'd.
Condition of Pleadings to determine,

cont'd.

Declaration not filed on applica-
tion, p. 258.

Enlargement by petition to re-
move, p. 557.

Enlargement by subsequent
pleadings of defendant, p. 557.

Failure to allege beneficiaries, p.
253.

Failure to allege negligence, p.
253.

Necessity to plead act, p. 245.

Plaintiff's own statement of case,

p. 245.

Showing federal question, pp.
244, 556.

State of, at time of application,
D. 258.

Stating case. under common,
state and federal laws, pp. 253-
254,

Denial of removal:
Constitutionality, p. 251.
Federal right, p. 601.
Not class legislation, p. 252.
Of remedy not right, p. 251.
Purpose and effect of, p. 247.
Retroactive operation, p. 251.
Fraudulent allegations to prevent:
Falsely basing ‘action upon act,

p. 254.
Holding plaintiff to proof of case,
Dp, 255,
Joining individual defendants, p.
254.
Jurisdiction to determine, pp. 255,
559.

Effect of decision, p. 559.
Petition for removal:
Sufficiency to show fraud, p. 255.
Prior to prohibition against, p. 244.
District to which removable, p.
246.
Remand:
Made by court if case not re-
movable, p. 258.
Mandamus to compel, p. 257.
Question determined by order,
pp. 256-257.
Review on, pp. 560-561.
Second petition for removal:
After amendment of pleadings,
p. 558.
Separable controversy, p. 559.
Statutory provisions, pp. 246, 656.
Subsequent to express prohibition:
Defendant a federal corporation,
p. 247.
Diversity of citizenship, pp. 247,
248.
Intention of congress to prevent
in any case, pp. 250-251.
Local prejudice or other grounds,
p. 249.
No case removable, p. 246.
784 INDEX.

REMOVAL OF CAUSE, cont'd.

Waiver of objection to, p. 257.
By filing pleadings, p. 258.
Not to be made by consent, p.
258.

REPAIRS

See “Inspection,” “Safety Appli-
ance Act.”

Instruments of interstate commerce:

As engagement in such com-
merce, pp. 68-75.
Making in shop, pp. 78-82.

Time to complete as showing with-
drawal of instrumentality from in-
terstate commerce, p. 79.

Under Safety Appliance Act:

See “Safety Appliance Act.”
Duty of railroad, pp. 457, 513.
Establishment and maintenance

of repair points, p. 515.
Maintaining height of drawbars,

p. 510.

Rules imposing duty on em-

ployee, p. 458.

REPAIR SHOPS

See “Commerce,” “Safety -Ap-
pliance Act.”
Altering machinery in as engage-
ment in interstate commerce, p. 81.
Duty of railroad to establish, p. 515.
Hauling defective cars past, p. 517.
Repairing or enlarging as engage-
ment in interstate commerce, p. 74.

REPORTS

See “Constitutional Law,” “Evi-

dence,” “Hours of Service Act.”
Under Hours of Service Act:

Authority of Interstate Com-
merce Commission to require,
p. 620.

Constitutionality, p. 611.

Failure to make, p. 621.

Omissions, p. 621.

RES ADJUDICATA
See “Judgment.”
Decision on prior appeal, p. 604.
Former opinion in case, p. 424.
RES GESTZ
See “Evidence.”

Admission to show interstate com-
merce, p. 312.
To show negligence, p. 314.

RES IPSA LOQUITUR
Application to case under act, p. 330.
Evidence leaving proof in conjec-
ture, p. 331.
Extent of rule, p. 330.
Proof of accident alone, p. 331.

REVIVAL

See “Actions,” “Survival.”
Not for benefit of estate, p. 194.
‘Parties entitled to, p. 193.
Sufficiency of petition for, p. 193.

ROUNDHOUSES

Assumption of risk:
Engine too wide for door, p. 181.
From tools on floor, p. 184.
Scrap hose on floor, p. 169.
Enlarging as engagement in inter-
state commerce, p. 74. :
Going in without light as contribu-
tory negligence, p. 164.
Knowledge of employee of open
pit in:
As question for jury, p. 187.
Negligence in construction of door-
ways, p. 137. : oa :
Negligence in maintaining open pit
in, p. 137.
Negligence, leaving jack on floor, p.
137.
Repairing as engagement in inter-
state commerce, p. 74.
Repairing of engine in, as engage-
ment in interstate commerce, p. 78.

RULES

Abrogated by constant violation, p.
124,

Admissibility in evidence, p. 310.
Copies, p. 316.

Custom to contradict, p. 317.

Expert testimony, p. 315.

Expert testimony of copies, p.
316.

Harmless, p. 317.

Parol proof of written rules, p.
315.

Admissibility to show negligence:
Confined to printed rules, p. 316.
Special instructions given em-

ployee, p. 316.
When habitually violated, p. 316.

Assumption of risk:

Of habitual violation, p. 181.
Of operation conducted in ac-
cordance with, p. 178.

Construction, p. 315.

Excuses for violation:

Acquiescence of company, p. 162.
Compliance would not avoid in-

jury, p. 163.

Impossibility of compliance, p.
162.

Rules inapplicable to conditions,
p. 163.

Failure to make and observe as neg-
ligence, p. 123. :
Imposing duty of inspection and re-

pair, pp. 458, 550. /
Under Safety Appliance Act, pp.
458, 514.
RULES, cont'd.

Instructions on, p. 357.
Permitting performance in con-
nection with other duties, p.
360.
Must admit of performance in con-
nection with other duties, p. 162.
Observance as negligence, p. 124.
Pleading, negativing exceptions in,
Pp. 285.
Presumption of compliance with, p.
357.
Sufficiency to protect employee, ques-
tion for jury, p. 124.
Violation as proximate cause of in-
jury, p. 161.
Violation of, as contributory negli-
gence, pp. 131, 160, 161, 549.
Failure to discover train in time
to avoid injury, p. 163.
Failure to throw fusees to warn
rear train, p. 163.

Going between cars when coupler
refuses to work, p. 163.
Violation of, as outside scope of em-

ployment, pp. 24, 529.

RUNNING BOARDS

Cars requiring, p. 504.
Rulings of Interstate
Commission, p. 508.

Statutory provisions, pp. 503, 660.

What constitutes, as question for
jury, p. 505.

When defective, p. 505.

Commerce

SAFETY APPLIANCE ACT

Air brakes:
See “Air Brakes.”
Equipment of engines, p. 481.
Failure to have in operation not
proximate cause of injury, p.
138.
Air brake requirements:
Liability when full
used, p. 486.
Movement between yards, p. 484.
Movement outside yard, p. 484.
On all cars, p. 486.
Orders of Interstate Commerce
Commission fixing percentage,
p. 663.
Switching cars without, p. 483.
Violation from failure to use, p.
596.
Amendment of 1903:
Declaratory of original act, p.
452.
Amendment of 1910:
Object of, p. 521. é.
Analogy with Hours of Service Act,
p. 613.
Appeal and error:
See “Appeal and Error.”
Judgments on appeal, pp. 603,
604.

Fed Act—50

percentage

INDEX. 785

SAFETY APPLIANCE ACT, cont'd.

Appeal and error, cont'd.
Presentation of question below,
p. 597.
Right to review judgment for
penalties, p. 598.
Sufficiency of record for appeal,
p. 597.
Appeal to federal supreme court:
Cases reviewable, p. 599.
Claim of federal right, what con-
stitutes, p. 601.
Extent of consideration of re-
cord, p. 599.
Federal controversy, what con-
stitutes, p. 604.
Federal question presented be-
low, p. 602.

Judgments of
courts, p. 600.
Time of asserting federal ques-
tion, p. 599.
Assumption of risk:
See “Assumption of Risk.”
Abolished, p. 534.
Abolished in actions under lia-
bility act, p. 172.
‘ Contributory negligence distin-
guished, p. 537.
Not to be called contributory
negligence, p. 535.

Object in abolishing, p. 536.
Statutory provisions, p. 659.
Authority of Interstate Commerce
Commission to enforce:
Statutory provisions, p. 662.

To designate appliances, p. 504.

Cars:

highest state

See “Cars.”
Defined, p. 488.
Locomotive as, p. 489.

Cars excepted by, p. 460.

Right of states to regulate ap-
pliances on, p. 460.

Statutory provisions, p. 659.

Cars to which applicable:

Box cars, p. 504.

Cabooses, p. 504.

Containing intrastate shipment,
p. 474.

Empties, p. 494.

Engaged in switching, p. 491.

Exclusively engaged in intrastate’
commerce, p. 460.

Flat cars, p. 504.

.Foreign, p. 478.

Gondola cars, p. 504.

“Hopper cars, p. 504.

House cars, p. 504.

Locomotives, p. 504.

Passenger cars, p. 504.

Shovel car, p. 490.

Tank cars, p. 504.
786 INDEX. .

SAFETY APPLIANCE ACT, cont'd. SAFETY APPLIANCE ACT, cont'd.
Common carrier: Couplers, cont'd.
Necessity of defendant being, Failure of employee to operate,

470. p. 457.
Common law rules superseded, pp. Failure to adjust, p. 587.
456, 526. Failure to equip includes defect-
Constitutionality: ive, p. 590.
See “Constitutional Law.” Failure to operate on curve track,
Denial of assumption of risk as p. 499.

defense, p. 443.

Construction:

See “Statutes.”

Amendment of 1910, p. 522.

Embraces both coupling and un-
coupling, p. 496.

Excepting roads wholly within
state, p. 468.

Exceptions not to be implied, p.
449.

Extends to preparation for
coupling, p. 496.

Hardship imposed by strict con-
struction, p. 450.

In derogation of common law, p.
449,

Intention of congress, p. 497.

Keeping employees from _ be-
tween cars, p. 496.

Other appliances affording pro-
tection, pp. 505-506.

Failure to operate with other
makes, p. 499.

Failure to work on impact, p.
501.

Hard to work, p. 502.

Inoperative or defective, p. 500.

Interchangeable, p. 479.

Levers, necessity of, pp. 498, 501.

Levers, one of two defective, p.
501.

Load of car preventing operation,
p. 503.

On cars, p. 488.

On ends of each car, p. 491.

On locomotives, pp. 489, 492.

Other appliances preventing op-
eration, pp. 496, 503.

Standard and design, p. 498.

Sufficiency of, p. 493.

. Sufficiency, test of, p. 494.

Use with adjacent cars, p. 493.

Penal requiring strict, p. 448.
Punctuation to effect, p. 497.
Retroactive operation, p. 522.
Same for all sections, pp. 449,

Custom approved by commerce com-
mission, p. 450.
Defective cars:
Temporarily at 1est, p. 474.

457. 5
Same for damages or penalty, Defenses, pp. 562-564.
pp. 449, 457. Care and diligence, p. 455.

To effect purpose, p. 446.
Uncertainty and indefiniteness of
appliances required, p. 504.
With statutes in pari materia, p.

451.

Contributory negligence:

See “Contributory Negligence.”
Abolished in actions under lia-
bility act, p. 151.
Custom to show, p. 580.
Failure to observe rules, p.- 549.
Failure to use appliances, p. 545.
Failure to use coupler on adja-
eert car, p. £51,
Failure to use couplers on op-
posite side, p. 547.

Contributory negligence, p. 538.

Custom approved by Interstate
Commerce Commission, p. 563.

Difficulty of compliance, p. 451.

Failure of employee to report de-
fects, p. 550.

Foreign cars, p. 479.

Indicating defects on car, p. 563.

Inspection, p. 479.

Knowledge and intent, p. 454.

Movement to repair, pp. 564, 588.

Reasonable care, p. 563.

Sufficiency of evidence to sus-
tain, p. 588.

Unlawful act of employee, p. 457.

Violation by co-defendant, p. 302.

Failure to use safer method, p. Difficulty of compliance with, p. 451.
546. Drawbars:
Couplers: See “Drawbars.”

See “Couplers.” —
Between locomotive and_ ten-

der, p. 489.

Defective not used on locomo-
tives, p. 492.

Defective removed from locomo-
tive, p. 493.

Duty to maintain, p. 501.
Effort of employee to operate,
p. 502.

Devices to maintain height, p.
510.

On electric motors, p. 509.

Orders of Interstate Commerce
Commission fixing height, p.
663.

Requirements of statute and In-
terstate Commerce Commis-
sion, p. 507.

Variation in height, p. 509.
INDEX.

SAFETY APPLIANCE ACT, cont'd.

Drawbars, cont'd.
Vehicles to which applicable, p
508.
Duty imposed, pp. 452-454.
Creates absolute liability, p. 449.
Delegation, pp. 457, 458.
Original equipment and future
repairs, p. 457.
Engagement in interstate commerce:
See “Commerce.”
Necessity of, by employee, p. 529.
Railroads wholly within state, p.
467.
Establishment and maintenance of
repair points, p. 515.
Evidence:
See “Evidence,” “Variance.”
Admissibility of instructions to
employees, p. 580.
Burden of proof, p. 586.
Custom to show contributory
negligence, p. 580.
Direction of verdict, p. 593.
Expert testimony, p. 579.
Models, p. 578.
Of inspectors, p. 581.
Of repairs, p. 581.

Positive and negative testimony, °

p. 582.
Preponderance defined, p. 584.

Presumptions of use in interstate.

commeice, p. 587.
Prior condition of appliance, p.
580.
Showing use in interstate com-
merce, p. 587.
Variance, p. 589.
Exceptions from act:
Statutory provisions, p. 658.
Going between cars:
When necessity existent, p. 497.
Government inspectors:
Duty to inform company of de-

fects, p. 511.
Duty to make identity known,
p. 512.

Grab irons:
See “Grab Irons.”
Rulings of Interstate Commerce
Commission, pp. 503-504.
Statutory requirements, pp. 503-
504.
Hand brakes:
See “Hand Brakes.”
Cars combined to carry load, p.
503.
Rulings of Interstate Commerce
Commission, p. 503.
Statutory requirements, p. 503.
To control speed of train, p. 487.
Use in emergency, p. 488.
Handholds:
See “Handholds.”
Rulings of Interstate Commerce
Commission, pp. 503-504.

787

SAFETY APPLIANCE ACT, cont'd.

Handholds, cont'd.
Statutory requirements, pp. 503-
504.
Hauling cars to repair:
Civil liability under amendment
of 1910, p. 521.
Defects developed in transit, pp.
515, 523-525.
Defects repairable in transit, pp.
515, 523-525.
Defects repairable only at shop,
p. 517.
Movements other than to repair,
pp. 523-525.
Movement with commercial cars,
pp. 518-520.
Passing repair point, p. 517.
Postponing all repair until reach-
ing shop, p. 517.
Statutory provisions, pp. 661, 662.
Sufficiency of evidence to show,
p. 588.
Under amendment of 1910, p. 520.
Unloading before repair, p. 517.
Use of chains, p. 525.
Inspection and repair:
See “Inspection,” “Repair.”
Delegation of duty, p. 510.
Duty of railroad, p. 513.
Employees of another company
inspecting, p. 514.
Opportunity and failure to dis-
cover defects, p. 514.
Requiring employee to inspect,
p. 514.
Time for making repairs, p. 514.
Instructions:
See “Instructions.”
Enlarging on issues, p. 592.
Erroneous request giving for los-
ing party, p. 591.
Ignoring evidence, p. 592.
Negligence in going between cars,
p. 359.
On duty to maintain equipment,
p. 355.
Refe ring to pleadings, p. 592.
Sufficient if correct as a whole,
p. 591.
Interurban cars, p. 476.
Interurban lines, application to, p.
470.
Joint lability, p. 596.
Jurisdiction:
See “Courts,” “Jurisdiction.”
In general, pp. 554-555.
To recover damages, p. 554.
To recover penalties, p. 555.
Ladders:
Defective, p. 529.
Rulings of Interstate Commerce
Commission, p. 503.
Statutory requirements, p. 503.
Liability act not affected by, p. 654.
Limitation of actions, p. 562.
788 INDEX.

SAFETY APPLIANCE ACT, cont'd.

Locomotive and tender as integral,
p. 489.
Locomotive as car, p. 489.
Object and purpose, pp. 442, 497.
Operation in territories and District
of Columbia, pp. 462-463.
Orders of Interstate Commerce Com-
mission: ;
Additional time for compliance
with, pp. 698, 700.
Designating appliances under act
of 1910, p. 664.
Height of drawbars, p. 663.
ercentage of air brakes, p. 663.
Plates illustrating, pp. 703-720.
Other appliances affording equal pro-
tection, pp. 505-506.
Penalties:
See “Judgment.”
Failure to use air brakes, p. 596.
Number of, from violation, p.
p. 594.
Pleading:
See “Amendments,”
ing.”
Amendments, p. 573.
Assumption of risk, p. 571.
Charging knowledge or want of
care, p. 567.
Contributory negligence, p. 571.
Following state practice, p. 565.
In language of statute, p. 565.
Necessity to going between cars,

“Plead-

p. 568.

Necessity of set- forth act, p.
570,

Negativing proviso, pp. 569, 573,
576.

Negligence, 571.
Presumption, that case based on,

p. 571.

Several violations in

counts, p. 565.

Use in interstate commerce, pp.

556, 572.

Waiver of failure to show inter-

state commerce, p. 573.

Plea or answer:

See “Plea or Answer.”
Assumption of risk, p. 577.
Contributory negligence, p. 576.
Pleading exceptions, pp. 570, 576.
Striking when harmless, p. 576.

Proceedings:
Duty to institute, p. 553.
Nature of, pp. 551-553.
Protection superior to penal feature,
p. 443.
Recovery for death, p. 529.
Reliance on, by plaintiff not engaged
‘in interstate commerce, p. 142.
Removal of cause:

See “Removal of Cause.”
Because under federal law, p. 555.
Petition for removal, p. 558.

distinct

SAFETY APPLIANCE ACT, cont'd.

Removal of cause, cont'd.

Review on remand, pp. 560-561.

Separable controversy, p. 559.

Sufficiency to show, pp. 556-557.
Running boards:

Rulings of Interstate Commerce

Commission, p. 503.

Statutory requirements, p. 503.
What constitutes, as question for
jury, p. 505.
When defective, p. 505.
State laws:

See “State and Federal Laws.”
Covering same ground, p. 460.
Difference in restrictions and

penalties, p. 460.

Liability under both, p. 459.

Operation on, p. 458.

Subjects not covered, p. 462.
Time of taking effect:

Amendment of 1910 as suspend-

ing, p. 452.

Authority of Interstate Com-
merce Commission to deter-

mine, p. 661.

Rules of Interstate Commerce

Commission, p. 664.

Statutory provisions, pp. 657, 658,

660.

Trains and switching distinguished,
p. 484.
Trains defined, p. 482.
Unlawful act of employees:
Liability for damages, p. 457.
Liability for penalty, p. 457.
Use in interstate commerce:

See “Commerce.”

After shipment unloaded, p. 473.

Cars used in, p. 464.

Empty cars, p. 475.

Ending of use, p. 472.

Moved on switches, pp. 466, 471.

Moving intrastate traffic, pp. 466,
474,

Not essential, p. 465.

On interstate roads, pp. 452, 470.

On private switches, p. 467.

On tracks of other carriers, p.

467.

Presumption of, p. 472.

Set aside for repairs, p. 476.

Sufficiency of evidence to show,

p. 585.

Temporarily at rest, p. 474.

Test of applicability, p. 464.

Use with interstate cars, p. 473.
Venue:

See “Venue.”

Proceedings for damages, p. 555.
Proceedings for penalty, p. 555.
Violation as negligence, pp. 141, 526.

See “Negligence,” “Statutes.”
Absolute liability, p. 152.
Concurrent negligence of plaintiff

to be disregarded, p. 152.
INDEX.

SAFETY APPLIANCE ACT, cont'd.
Violation as negligence, cont'd.

Concurrent with fellow servants,
pp. 527, 530.

Defeating assumption of risk and
contributory negligence must
be proximate cause of injury,
p. 173.

Employee acting in violation of
orders, p. 529.

In general, pp. 141-142, 526-527.

Persons protected by statute, p.
527.

Proximate cause of injury, pp.
138, 157, 531-533.

SCOPE OF ACT

Broad and comprehensive as state
laws, p. 195. :
Includes all that could be in-
cluded, p. 61.
Limitation to:
Carrier by rail, p. 15.
Common carrier, p. 15.
Employer and employee, p. 20.
Test to determine, p. 62.

SCOPE OF EMPLOYMENT
See “Employer and Employee.”
SECTION HANDS

See “Commerce,” “Employer
and Employee,” “Negligence.”
SET-OFF

See “Contracts.”
Amount paid under contract, pp. 51,
57. 4
Statutory: provisions on, pp. 653, 655.

SEVENTH AMENDMENT

See “Constitutional
“Courts,” “Jurisdiction.”
Not applicable to states, p. 241.

SIGNALS

Contributory negligence:
Failure to obey, p. 160.
Failure to protect cars being re-
paired, p. 164.
Failure to protect train, p. 169.
Employee engaged in interstate com-
merce:
Changing hand to automatic, p.

Law,”

7A,
Installing block signal, p. 77.
Repairing and maintaining. p. 73.
Failure to give to following train as
negligence, p. 163.
Negligence of conductor in giving, p.
129.
Obeying hand as against fixed, p.
360.

STARE DECISIS

See “Judgment.”
Former opinion in same case, p. 424.

789.

STATE AND FEDERAL LAWS

See “Commerce,” “Congress,”

“Courts,” “States.”

Applicability of federal law:
As defense to action, p. 301.
As federal controversy, pp. 433-

434,

Improper plea of state law, p.

46,

Raised by general denial, p. 296.
Sufficiency of objection to raise

question of, p. 45.

Change of law on appeal, p. 421.
Consolidation of cases under, p. 405.
Duty of court to administer law con-

trolling, pp. 43, 45, 46, 47.
State law not to be’ applied to

case of interstate commerce,

p. 47.

Trial under law not applicable,

pp. 46, 418-421.

Election between, pp. 43, 571.
Effect when wrong, p. 267.
Enforcement of federal in state
courts, 554,
Exclusive operation of each, p. 40.
Hours of Service Act:
Effect on state law, p. 14.
Instruction on, p. 351.
Inconsistency of request as to
law governing case, p. 45.
Joinder of actions under, p. 288.
Judicial notice of federal, pp. 46, 307,
578.
Liability under both, p.
Presumption created by
p. 356.
Presumption that action brought un-
der federal, p. 275.
Presumption that action brought un-
der state, p. 275.
Proof of law pleaded, p. 303.
Proof of law to govern, p. 306.
Providing different parties to bring
action, p. 200.
Refusal of state to enforce as against
public policy, p. 238.
Review on appeal:

See “Appeal and Error.”
Error in applying, p. 425.
Sufficiency of objection below,

p. 413.

Safety Appliance Act:
Cars engaged in intrastate com-

merce, p. 460.

Operation on state laws, p. 458.
Right of states to legislate, p.

460.

State laws as affecting interstate

commerce, p. 461.

State laws as supplemental to

federal, p. 618.

Subjects of legislation not cov-

ered, p. 461.

State modification of common law
not to be applied, p. 174.

459.
state laws,
790

STATE AND FEDERAL LAWS,
cont'd,

States in enforcing federal law fol-
low own procedure, p. 239.

Supremacy of federal law,

266, 337, 459, 614.

Actions pending under state law,
p. 302.

Assumption of risk, pp. 173, 175.

Beneficiaries, pp. 217, 225.

Boiler Inspection Act, p. 727.

Contributory negligence, p. 176.

Damages, p. 394.

pp. 43,

Determination of common law,
p. 174.

Distribution of damages, pp. 217,
219.

During postponement of opera-
tion, p. 614.

Evidence showing it applicable,
p. 215.

Judgment in action under state
law as bar, p. 209.
Limitation of actions, p. 231.
Not cumulative or optional, p.
266. .
Over state workmen’s compensa-
tion act, pp. 48-50.
Parties, pp. 201, 203, 205.
Pleading showing case under, p.
274,
Survival, p. 191.
Supremacy of state law, p. 41.
Next of kin, p. 228.
Over intrastate commerce, p. 42.
Procedure, pp. 239, 262.
Variance between pleading and proof
of law, p. 335.
Waiver of application of proper law,
p. 44.
By plea under state law, p. 431.
Failure to plead, p. 298.
First questioned on appeal, p.
413.
Proceeding with trial under state
statute, p. 341.

Submitting issues under state
law, p. 414.

STATES
See “Commerce,” “Congress,”

“Courts,” “Hours of Service
Act,” “Safety Appliance Act,”
“State and Federal Laws.”
Duty to enforce federal law, p. 39.
Exclusive operation of state law, p.
40,
Federal law, against public policy of,
p. 38.
Federal laws, paramount in, p. 38.
Follow own procedure in enforcing
federal laws, p. 239.
Jurisdiction of courts, pp. 235-244,
Constitutionality, p. 238.
Right to decline, p. 238.

INDEX.

STATES, cont'd.

Laws embracing same subject matter

as federal:

Effect of difference in beneficia-
ries, p. 10.

Effect of different recovery, p.
10.

Police powers of: ;
As affected by federal constitu-
tion, p. 8.
Power over intrastate
p. 3.
Regulations of interstate commerce:
Compensation act as interference
with, p. 11.
Cumulative with federal laws, p.
39.
Effect of inaction by congress,

commerce,

p: fi:

Effect of repeal or unconstitu-
tionality of federal law, pp. 9,
Li.

Federal laws on, supreme, p. 10.

In absence of federal legislation,
pp. 8, 25, 39.

Inoperative, not void, p. 11.

Jnvalid action by congress, p., 11.

Police power of states over, p. 8.

Presumed not to embrace in-
terstate commerce, p. 11.

Priority of state enactment, p. 11.

Requiring improvements on
tracks, p. 10.

Supplementary to federal law, p.

39.
Retroactive operation of federal
laws, p. 12.
United States not foreign to, p. 38.
STATIONS
See “Commerce,” “Employer

and Employee.”
Employee repairing as engaged in in-
terstate commerce, p. 75.

STATUTES
See “Assumption of Risk,” “Con-
stitutional Law,” ‘“Contribu-
tory Negligence,” “Hours of
Service Act,” “Negligence,”

“Safety Appliance Act.”
Aid of federal by state, pp. 191, 618.
Amendment as construing, pp. 444,
452, 522.
Assumption of risk abolished when
violated, p. 170.
Federal statute, p. 176.
Proximate cause of injury, p. 173.
Construction:
Affecting purpose, pp. 446, 535.
All sections receive same, p. 449.
As denial of federal right, p. 600.
As federal controversy, pp. 430,
433, 602.
Authoritatively construed by
federal courts, p. 33.
INDEX. 791

STATUTES, cont'd.
Construction, cont'd.

Certainty, p. 610,

Custom approved by commerce

commission, p. 450.
Derogation of common law, pp.

34, 449.

Exceptions not to be implied,
pp. 449, 468.

Following rule of federal court,
p. 34.

Hardships imposed, p. 450.
Intention of enactment, p. 497.
Of provision against removal, p.
251.
Of state by federal courts, p. 562.
Prospective or retroactive, pp.
34, 35, 230, 234, 251, 522.
Punctuation to effect, p. 497.
Restricting state to intrastate
commerce, p. 618.
Strict or liberal, p. 33.
With others in pari materia, p.
451. iy
Contributory negligence abolished
when violated, pp. 150, 166.
Federal statute, p. 176.
Proximate cause of injury, p. 173.
Death action must be based on, p.
270.
Employees within protection of, pp.
527, 647.
Erroneous pleading, effect of, p. 272.
Federal enforceable in all states, p.
555.
Federal not foreign to state, p. 270.
Joinder of actions under common
law with, p. 288.
Judicial notice of, pp. 270, 307.
Necessity to plead federal, pp. 204,
270.
Presumption when
under, p. 275.
Removal of cause:
See “Removal of Cause.”
Because under federal, p. 555.
Violation as negligence, p. 526.
Employee acting in violation of
orders, p. 529.
Nature of duty imposed by, p.
141.
Proximate cause of
531-533.
When plaintiff not engaged in
interstate commerce, p. 142.

action brought

injury, pp.

STEAM SHOVEL

See “Commerce,” “Employer and
Employee.”
Employee operating as engaged in
interstate commerce, p. 70.

STIPULATION

See “Contracts.”
Affecting review on appeal, p. 426.
To defeat operation of act, p. 51.

STREET RAILWAYS

See “Cars,” “Railroads.”
Application of Hours of Service Act,
to, p. 723.
Application of Safety Appliance Act,
p. 470.
Statutory provisions, p. 659.

SURVIVAL

See “Actions.”

As question of procedure, p. 264.

Not limited to cases of instantane-
ous death, p. 197.

Of injuries as question for jury, p.
197.

Statutory provision, p. 656.

To personal representative only, p.
201.

SWITCHES

Admissibility of evidence of defect,
p. 312.
As line of interstate carrier, p. 466.
Assumption of risk of:
Constructed around curve, p. 185.
Placed too close to track, p. 181.
Condition of as negligence:
Defective, p. 135.
Obscured by embankment and
trees, p. 136.
Open, p. 135.
Placed too near track, p. 136.
Unlocked, p. 135.
Employee repairing when engaged in
interstate commerce, p. 69.
Failure of fireman to inform engineer
of open, as contributory negli-
gence, p. 160.
Failure of train to clear as negli-
gence, p. 131.

Failure to close as negligence, p. 129.

Failure to discover open as contrib-
utory negligence, p. 165.

Making flying, as proximate cause of
injury, p. 161.

State statute requiring blocking:

Interference with interstate com-
merce, p. 462.

TANK CARS

Safety appliances applicable to, p.
504,

TELEGRAPHS AND TELE-
PHONES
See “Commerce,” “Hours of
Service Act,” “Negligence,”
“Offices.”

Employee repairing telegraph line as
engaged in interstate commerce, p.
To.

Employees handling orders, within
Hours of Service Act, p. 724.

Employees using telephone as opera~
tors, pp. 631-633.
792

TELEGRAPHS AND
PHONES, cont'd.

Failure to install lightning arresters
on telephones as negligence, p. 134.

Failure to provide means to erect
telegraph poles as negligence, p.
134.

Hours of employees, statutory pro-
visions, p. 721.

Office, what constitutes, pp. 633-635.

TERMINALS

Switching cars at, as engagement in
interstate commerce, p. 96.

What constitutes, under Hours of
Service Act, p. 723.

TERRITORIES

Act extending to, p. 37.
Act of 1906 still operative in, p. 27.
Effect when admitted as state,

TELE-

p. 7.
Application of Hours of Service Act,
p. 724. ;
Statutory provisions, p. 721.
Application of Safety Appliance Act
in, pp. 462-463.
Jurisdiction of courts on admission to
statehood, p. 235.
Legislation superseded, pp. 12, 36.
Legislative power of congress over,

p. 6.
Statutory provisions regarding, pp.
653, 654, 659.

TEXT OF ACTS

Ash Pan Act, p. 733.

Boiler Inspection Act, p. 727.
Amendment of 1915, p. 732.
First Federal Employers’ (Liability

Act, p. 653.

Hours of Service Act, p. 721.
Amendment of 1916, p. 722.

Safety Appliance Act, p. 657.
Amendment of 1903, p. 659.
Amendment of 1910. n. 660.

Second Employers’ Liability Act, p.

654.

Amendment of 1910, p. 656.

TOOLS AND APPLIANCES
See “Appliances,” “Assumption
of Risk,” “Contributory Neg-
ligence,” “Negligence,” “Safety
Appliance Act.” :
Assumption of risk:
Employee with knowledge of de-
fect in, p. 181.
Splinters from
184.
Care required of employee, p. 122.
For simple and complex, p. 134.
Simple tools:
Assumption of risk as to, p. 179.
What are, p. 179.

spike mauls, p.

INDEX.

TOWERS

See “Hours of Service Act.”
Defined, p. 725.
Employees giving and receiving or-
ders, p. 633.

TRACKS

Assumption of risk:
By trackwalker, p. 178.
Cinders close to, p. 185.
Dangerous and defective, p. 184.

Obstructions close to, pp. 181,
189.
Too close to each other, p. 185.
When constructed preventing
view ahead, p. 185.
Contributory negligence:
Failure of employee to keep

lookout, p. 164. _
Working or walking on, pp. 160,.

165.
Employees on, engaged in interstate
commerce; |

Constructing new, p. 76.
Constructing parallel, p. 77.
Hauling gravel to repair, p. 72.
Inspection of, p. 72.
Operating steam shovel, p. 70.
Removing earth, p. 70.
Removing old rails from, p. 72.
Pepairing, pp. 69, 280.
Running hand car for upkeep
and repair, p. 70.
Shoveling dirt between ties, p. 70.
Failure of couplers to work on
curved, p. 499.
Negligence respecting:
Care required in construction and
maintenance, p. 121.

Defects on or near track, p. 135.

Failure to protect or guard path
over, p. 138.

Horizontal timber overhead, p.
137.

Lookout for employees sent back
to flag train, p. 156.

Lookout for employees working
on, p. 126.

Nearness when in city street, p.
135.

Placing structures near, p. 136.

Precautions against dangers to
employees working on, p. 126.

Too close together, p. 135.

Uneven, p. 135.

Using worn rails on curve, p. 136.

Warning employee of unsafe, p.
125. ;

Warning employees of close prox-
imity, p. 125.

Warning employee when close
together on barge, p. 126.

Warning trackwalker, p. 125.
INDEX.

TRAFFIC AGREEMENTS

Delivery to connecting carrier in
State as interstate commerce, p. 469.

Liability for negligence under, p. 143.

Necessity of to constitute interstate
carriers, p. 468.

TRAINS

See “Air Brakes,” “Commerce,”
“Hours of Service Act,” “Safety Ap-
pliance Act.” :

Air brake equipment on, p. 482.

Controlling speed of, by hand
brakes, p. 487.

Number of offenses from failure
to use, p. 596.

Assumption of risk:

As question for jury, pp. 187,
188.

Attempting to board when mov-
ing fast, p, 183.

Negligent operation. p. 180.

Baggagemen, on within Hours. of
Service Act, p. 724.

Conductor on using telephone as op-
erator, p. 631.

Contributory negligence:

Failure of employee to protect
rear as concurrent negligence
with defendant, p. 161.

Failure of flagman to protect rear
as sole cause of injury, p. 159.

Failure to protect by proper sig-
nal, p. 169.

Failure to stop on seeing work-
men on track, p. 163.

Defined, p. 482.

Duty of employee:

Charged with knowledge of
movement, p. 127. :

To guard against ordinary move-
ment, p. 127.

Employee jumping from, railroad not
liable for, p. 119.

Interstate service of employee on:

Breaking up trains at terminals,
pe. 96.

Hauling cars to interstate, p. 99.

Inspecting, p. 105.

Keeping lookout for interstate,
p. 86.

Loading ties on, p. 81.

Local employment on interstate,
p. 96.

Local, engaged in interstate com-
merce, p. 86.

Making up, p. 471.

On leaving train, p. 116.

On work trains, pp. 116, 278.

Repairing boiler of wrecking
train, p. 81.

Riding on, to work, p. 112.

Right to give transfers to inter-
state destination, p. 86.

_ Round trip carrying interstate
commerce one way, p. 88.

793

TRAINS, cont'd.
Interstate service of employee on,
cont'd.
Running from state to state with-
out traffic, p. 85.
Running interstate, but engine
changed between local points,
p. 88.
Switching cars left at destination,
p. 100. ;
Switching intrastate car out of
or into interstate train, p. 95.
Transferring freight at interme-
diate points, p. 96.
When operated across state line,
p. 279.
When running intrastate, p. 619.
Movements distinguished from switch-
ing, p. 484. :
Negligence in operating:
By train dispatchers, p. 128.
Excessive speed, pp. 123, 130, 131.
Failure to clear switch, p. 131.
Making emergency stop, p. 130.
Permitting extraordinary and un-
usual movement, p. 129.
Pushing uncoupled cars, p. 130.
Without signals or warning, pp.
123, 125.
Proximate cause of injury:
Excessive speed, p. 139.
Failure to protect rear by flag-
man, p. 139.
Stopping for person on track, p.
130
Use in interstate commerce, when
ending, p. 97. :

TRANSFER AND BELT RAIL-
ROADS
Engagement in interstate commerce,
p. 469.

TRIAL
See “Actions,” “Appeal and Er-
ror,’ “Juries,” “Procedure,”
“Verdict.”
Consolidation of actions for, p. 267.
Purpose of, p. 405.
Continuance:
Allowance after amendment of
pleading, p. 405.
Discretion of court, p. 405.
Under law not applicable, when preju-
dicial, p. 418.

TUNNELS
Assumption of risk from post in:
As question for jury, p. 187.
Duty to light or guard, p. 136.
Employee constructing as engaged in
interstate commerce, p. 76.

TURNTABLES
Employee repairing; when engaged in
interstate commerce, p. 69.
794

VARIANCE

See “Amendments,” “Evidence,”
“Pleading.”
Actions under Safety Appliance Act,
p. 589.
Amendment of pleadings to conform
tO, PP, 389, 373.
In pleading negligence:
Place of injury, p. 338.
Pleading one law evidence showing
other, p. 335. ;
Different parties to bring action,
p. 338,
Prejudice to adverse party, p. 336.
Waiver by failure to question, p. 339.
When material, p. 336.
Case presented under one law evi-
dence showing another, p. 337.

VENUE

See “Jurisdiction.”
Amendment of 1910 provides venue in
federal courts, p. 261.
Provisions not retroactive, p. 261.

Of administration proceedings, p. 201.

Transitory, p. 261.

Under Safety Appliance Act:
Proceedings for damages, p. 555.
Proceedings for penalty, p. 555.

Waiver of objections to, pp. 261, 300.

VERDICT

See “Judgment.”
Adding interest to, p. 394.

Amount:
Consideration on appeal, pp. 396,
425, 437.

Tested by similar cases, p. 395.
Apportionment of damages in:
Among beneficiaries, pp. 384-386.
For negligence and contributory
negligence, p. 394.
Waiver of failure to, p. 384.
Curing excessive by remittitur, pp.
410, 440, 441.
Duty to direct, p. 323.
Consideration of evidence on re-

quest, p. 323.
Evidence required for negligence,
p. 131. j

Failure of plaintiff to show right
of recovery, p. 267.

Judgment, notwithstanding,
323, 518.

State law governs, p. 263.

Excessive when afflicted child exhib-
ited to jury, p. 347.
For plaintiff, not conclusive of con-
tributory negligence, p. 408.
Framing interrogatories for special
finding:

Sufficiency of answer, p. 592.
Quotient, what constitutes, p. 409.
Separate for each issue, p. 407.
Special and general verdict:

Consistency of, p. 407.

Pp.

INDEX.

VERDICT, cont'd.

Special and general verdict, cont'd.
Construction of, p. 409.
Following state law, p. 409.
General finding and assumed risk,

p. 408.
General finding and contributory
negligence, p. 408.
General finding, effect of, p. 407.
General operation, pp. 48, 409.
Right to require special, p. 407.
Special as controlled by general,
p. 592.

State juries less than twelve:

Denial of due process of law, p.
240.

Federal law not followed, p. 244.

Question of procedure, p. 244.

State law governs, p. 263. _

Sufficiency of evidence to sustain:
Conjectural proof, p. 588.

In case under state and federal
law, p. 325.
Testimony of jurors to impeach, p.
409.

Under Hours of Service Act:
Determination of amount, p. 651.
Number of offenses for violation,

p. 651.

Under Safety Appliance Act:
Direction in civil action, p. 593.
Right to direct for penalty, p. 593.

VESSELS

See “Boats,” “Railroads.”
WAIVER

See “Evidence,” “Instructions,”

“Pleadings.”
Amendments to pleadings, pp. 573-575.

By conforming to ruling, p. 650.
Claim of federal right:

Time of imposing, p. 432.
Failure to apportion damages, p. 384.
Of error on appeal:

By failure to assign, p. 415.

Of federal law: "
Failure to submit instructions, p.
414,
Plea under state law, p. 431.
Proceeding with trial under state
statute, p. 341.
Of objection to instructions:
By request, p. 363.
Of pleading: :
Failing to show interstate com-
merce, p. 573.
Of variance, p. 339. |
Right to waive application of proper
law by parties, p. 44.
To evidence: :
By failure to object, p. 340,
Other evidence to same effect, p.

340.
Reports under Boiler Inspection
Act, p. 342.
INDEX.

WATCHMAN

Engagement in interstate commerce:
At grade crossing, p. 103.
In railroad yard, p. 103.
Sufficiency of evidence to show,
p. 325.
Under Hours of Service Act:
Requiring firemen to be, p. 526.

WATER

See “Commerce.”
Engagement in interstate commerce
by employee:
Going to pumping station, p. 111.
Hauling for carrier’s use, p. 91.
Pumping water for trains, p. 111.
Supplying tank, p. 92.

WATER CRANE

Assumption of risk of negligent po-
sition of, as question for court, p.
189.

Having pipe hard to swing into posi-
tion as negligence, p. 135.

Overflow of and formation of ice on
track as negligence, p. 135.

WATER GAUGE

Assumption of risk:

Failure to supply guard glass on,
p. 184.

Use of with knowledge of defec-
tive condition, p. 169.

Use of, without guard glass as
proximate cause of injury, p.
161. *

WAY

Failure to protect or guard as negli-
gence, p. 138.

WEEK

See “Hours of Service Act.”
Defined, p. 725.

WHARVES

See “Boats.”
As adjunct to transportation by rail,
p. 17.

WIDOW

See “Beneficiaries,” ‘Damages,’
“Judgment,” “Parties,” “Pecu-
niary Loss,’ “Personal Repre-
sentative.”

Amount of damages for, pp. 396-398.
Apportionment of damages with mi-
nor son, p. 385.
Changing from administrator to, p.
274,
As bringing new action, p. 206.

795

WIDOW, cont'd.

Elements of damage to, p. 375.
Evidence of pecuniary loss:

Engaged to be remarried, p. 322.

Receipt of insurance money, p.
322.

Separation from husband, p. 322.

Existence of, excludes other benefi-
claries, p. 218.
Institution of suit by:

Adoption of proceedings after
judgment by personal repre-
sentative, p. 208.

Necessity of pecuniary loss to, p. 219.

Necessity to show dependency of, p.
221.

Pecuniary loss to:

Unpleasant relations with hus-
band, p. 321.

When separated from husband,
Dp. 373,

Suit by, in own right, pp. 203, 204,
245, 267.
Time of objection, p. 214.

WILLFUL INJURIES

See “Negligence.”
Right to recover for, p. 142.

WITNESSES
See “Evidence,” “Expert Testi-
mony.”
Argument of counsel on failure to
call, p. 406.
Competency:
As experts, p. 343.
Interested parties, p. 344.
Law regulating, p. 343.
Personal representative, p. 344.
Conduct on stand, p. 347.

Failure to appear and testify, p. 346.
Inferences from failure to produce
records, p. 347. 2
New matter on cross-examination,

p. 323.
Physicians:
Communications to, p. 345.
Waiver of privilege, p. 346.
Testimony when absent, p. 346.

WORKMEN'S COMPENSATION

ACT
As contract releasing liability, p. 55.
As regulating interstate commerce,
p. 11.
Federal law controls over, pp. 48, 50.
Showing interstate commerce
sufficient to show control over,
Dp. 56.
Limiting damages by, p. 394.
 

 

 

 

 

 

 

 

 

 

 

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