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W. W. (William Wheeler) Thornton.

A treatise on the Federal employers' liability and safety appliance acts, with similar state statutes and federal statutes on hours of labor online

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By the law it was intended to prohibit a railroad company
from using a car or engine having a defective coupler only
upon one end, even though that coupler was so defective that a
reasonably prudent man would not undertake to make a
coupling therewith. The law was intended to protect the
lives and safety of all employees, whether they are reasonably
prudent or not. As I view it, an engine in the condition in
which this was was a possible source of great danger, in that
if an employee were standing upon the footboard and the head
of the defective coupler was so low as not to engage with the
coupler upon a car in proper condition, thus permitting the
two cars to come close together, the employee might be
crushed. Or, upon the other hand, an employee of little ex-
perience or caution might undertake, in case of emergency,
to couple the defective coupling with that of another car, and
thus imperil his safety or his life. In that view I have ex-
cluded the testimony offered on behalf of the defendant and
declined to give certain requested instructions, and it becomes
your duty to find a verdict in favor of the plaintiff in ac-
cordance with the prayer of the complaint.



APPENDIX H.



STATE STATUTES.

CxiLIFORNIA.

[Statute 1911, p. 796.]

Section 1. ''In any action to recover damages for a per-
sonal injury sustained by an employee while engaged in the
line of his duty or the course of his employment as such, or
for death resulting from personal injury so sustained, in
which recovery is sought upon the ground of want of ordinary
or reasonable care of the employer, or of any officer, agent or
servant of the employer, the fact that such employee may
have been guilty of contributory negligence shall not bar a
recovery therein where his contributory negligence was slight
and that of the employer w^as gross, in comparison, but the
damages may be diminished by the jury in proportion to the
amount of negligence attributable to such employee, and it
shall be conclusively presumed that such employee was not
guilty of contributory negligence in any case where the
violation of any statute enacted for the safety of employees
contributed to such employee's injury; and it shall not be a
defense :

(1) "That the employee either expressly or impliedly as-
sumed the risk of the hazard complained of.

(2) "That the injury or death was caused in whole or in
part by the want of ordinary or reasonable care of a fellow
servant.

Section 2. "No contract, rule or regulation, shall exempt
the employer from any of the provisions of the preceding
section of this Act. ' '
711



712 STATE STATUTES.

FLORIDA.

From General Statute 1906.

Section 3148. Liability of railroad company. "A railroad
company shall be liable for any damages done to persons,
stock or other property, by the running of the locomotive, or
ears, or other machinery of such company, or for damage
done by any person in the employ and service of such com-
pany, unless the company shall make it appear that their
agents have exercised all ordinary and reasonable care and
diligence, the presumption in all cases being against the
company. ' '

Section 3149. When recovery of damages jorhidden. "No
person shall recover damages from a railroad company for
injury to himself or his property, where tlie same is done by
his consent, or is caused by his own negligence. If the com-
pany and the agents of the company arc both at faidt, the
former may recover, but the damages shall be diminished or
increased by the jury in proportion to the amount of default
attributable to him."

Section 3150. Liability for injury to employee. "If any
person be injured by a railroad company by the running of
the locomotives or cars, or other machinery of such company,
he being at the time of such injury an employee of the com-
pany, and the damage was caused by negligence of another
employee, and without fault or negligence on the part of the
person injured, his emplojnnent by the company shall be no
l)ar to a recovery. No contract which restricts such liability
shaU be legal or binding." [Acts 1891, Ch. 4071, § 1.]



IOWA.

[Code 1907, § 2071, as amended by Acts 1911, p. 117.]

Section 2071. "Every corporation operating a railway
shall be liable for all damages sustained by any person, in-
cluding employees of such corporation, in consequence of the



APPENDIX H. 713

neglect of the agents, or by any mismanagement of the engi-
neers, or other employees thereof, and in conse(iiience of the;
wilful wrongs, whether of commission or omission, of such
agents, engineers or other employees, when such wrongs are
in any manner connected Avith the use and operation of any
railway on or about which they shall be employed, and no
contract which restricts such liability shall be legal or ])inding.
Nor shall any contract of insurance, relief, benefit, or in-
demnity in case of injury or death, entered into prior to th(!
injury, between the person so injured and such corporation,
or any other person or association acting for such corporation,
nor shall the acceptance of any such insurance, relief, benefit,
or indemnity by the person injured, his widow, heirs, or legal
representatives after the injury, from such corporation, person
or association, constitute any bar or defense to any cause of
action brought under the provisions of this section ; but
nothing contained herein shall be construed to prevent or in-
validate any settlement for damages between the parties sub-
sequent to injuries received." [The following was added in
1911.] "That in all actions hereafter brought against any
such corporation to recover damages for the personal injury
or death of any employee under or by virtue of the provisions
of this section, 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 attributable to such employee:
Provided, That no such employee who may be injured or
killed shall be held to have been guilty of contributory negli-
gence in any case where the violation by such common carrier
or corporation of any statute enacted for the safety of em-
ployees contributed to the injury or death of such employee ;
nor shall it be any defense to such action that the employee
who was injured or killed assumed the risks of his
employment. ' '



714 STATE STATUTES.

MICHIGAN.

[Public Acts 1909, p. 210.]

Section 1. "Every common carrier railroad company in
this state shall be liable to any of its employees, or, in 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, for all damages which may
result from the negligence of any such railroad company or
from the negligence of any of its officers, agents or employees,
or by reason of any defect or insufficiency due to the negli-
gence of any such common carrier railroad company in its
cars, engines, appliances, machinery, track, roadbeds, works,
boats, wharves, coal docks or other equipment."

Section 2. "In all actions hereinafter brought against
any such common carrier railroad company under or by
virtue of any of the provisions of this Act to recover damages
for personal injury to any employee, or where such injuries
have resulted in Lis death, the fact that the employee may
have been guilty of contributory negligence shall not bar
a recovery : Provided, That the negligence of such employee
was of a lesser degree than the negligence of such company,
its officers, agents or employees: Provided further, That no
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 railroad company of any
statute enacted for the safety of employees contributed to the
injury of such employee, and such employee shall not be held
to have assumed the risk of his employment in any case where
the violation by such common carrier of any statute enacted
for the safety of emj^loyees contributed to the injury or death
of such employee."

Section 3. "The words 'railroad company,' as used in this
Act, shall be taken to embrace any company, association,
corporation, or person managing, maintaining, operating, or
in possession of a common carrier railroad in whole or in part



APPENDIX n. 71, J

within this state, wliethcr as owner, contractor, lessee,
mortgagee, trustee, assignee or receiver.''

Section 4. "No contract of employment, insurance, relief,
benefit, or indemnity for injury or death entered into by or ou
behalf of any employee, nor the acceptance of any such in-
surance, 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, hoivever, That upon the trial of
such action, the defendant may set off therein any sum it has
contributed toward any such insurance, relief, benefit or in-
demnity that may have been paid to the injured employee,
or, in case of his death, to his personal representative."

Section 5. "No action shall be maintained under this Act
unless commenced within two years from the time the cause of
action occurred."

Section G. "Nothing in this Act shall be held to limit the
duty of common carrier railroad companies, or impair the
rights of their employees under existing laws of the state."

Section 7. "The provisions of this Act shall not apply to
employees working in shops or offices."



MONTANA.

[Laws 1911, p. 47.]

Section 1. "Every person or corporation operating a
railroad in this state shall be liable in damages to any person
suffering injury while he is employed by such person or
corporation so operating any such railroad, or, in case of the
death of such employee, instantaneously or otheruase, to his
or her personal representatives, for the benefit of the surviv-
ing 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 employees, for such
injury or death resulting in whole or in part from the negli-



716 STATE STATUTES.

gence of any of the officers, agents, or employees of such
person or corporation so operating such railroad in or about
the handling, movement or operation of any train, engine or
cars, on or over such railroad, or by reason of any defect or
insufficiency, due to its negligence, in its cars, engines, ap-
pliances, machinery, track, roadbed, works, boats, wharves
or other equipment,"

Section 2. "In all actions hereafter brought against any
such person or corporation so operating such railroad, under
or by virtue of any of the provisions of this Act, the fact
that the employee may have been guilty of contributory negli-
gence shall not bar a recovery, but the damages shall be
diminished by the jury in proportion to the amount of negli-
gence attributable to such employee : Provided, That no such
employee who may be injured or killed shall be held to have
been giiilty of contributory negligence in any case where the
violation of such person or corporation so operating such rail-
road of any statute for the safety of employees contributed to
the injury or death of such employee."

Section 3. ' ' Any employee of any such person or corpora-
tion so operating such railroad shall not be deemed to have
assumed any risk incident to his employment when such risk
arises by reason of the negligence of the employer or of any
person in the service of such employer."

Section 4. ' ' Any contract, rule, regulation or device what-
soever, the purpose or intent of which shall be to enable any
such person or corporation so operating such railroad to ex-
empt itself from any liability created by this Act shall, to that
extent, be void : Provided, That in any action brought against
any such person or corporation so operating such railroad,
under or by virtue of any of the provisions of this Act, sucb.
person or corporation may set off therein any sum it has con-
tributed or ])aid to any insurance, relief, benefit, or indemnity
that may have been paid to the injured employee, or to the
persons entitled thereto, on account of the injury or death
for which said action is brought."



APPENDIX H. 717

NEBRASKA.

[From Cobbey's Ann. Stat. 1911.]

Section 10591. Liahiliiy of company for injury or death.
"That every railway company operating a railway engine, or
a train in the state of Nebraska, shall be liable to any of its
employees, who at the time of injury are engaged in construc-
tion or repair work or in the use and operation of any engine,
car or train for said company, or, in the case of his death, to
his personal representatives for the benefit of his widow and
children ; if any, if none, then to his parents ; if none, then
to his next of kin dependent upon him, for all damages
which may result from negligence of any of its officers, agents
or employees, or by reason of any defects or insufficiency due
to its negligence in its cars, engines, appliances, machinery,
track, roadbed, ways or works." [Laws 1907, Ch. 48,
p. 191, § 1.]

Section 10592. Contributory negligence, not a bar. "That
in all actions hereafter brought against any railway company
to recover damages for personal injuries to an employee, or
when such injuries have resulted in his death, the fact that
the employee may have been guilty of contributory negligence
shall not bar a recovery, when his contributory negligence
was slight and that of the employer was gross in comparison,
but damages shall be diminished by the jury in proportion to
the amount of negligence attributable to such employee, all
questions of negligence and contributory negligence shall be
for the jury." [Laws 1907, Ch. 48, p. 192, § 2.]

Section 10593. Insurance or relief contract not bar to re-
covery. "That no contract of employment, insurance, relief,
benefit, or indemnity for injury or death hereafter 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, hoivever, That upon



718 STATE STATUTES.

the trial of such action against any common carrier the
defendant may set off any sum it has contributed toward an}'
such insurance, relief, benefit, or indemnity that may have
been paid to the injured employee, or, in case of his death,
to his personal representative." [Laws 1907, Ch. 48, p,
192, § 3.]



NEVADA.

[Statutes 1911, p. 362.]

Section 1. *'If in any employment to which this Act
applies personal injury disabling a workman from his regular
service for more than ten days, or death by accident, arising
out of and in course of employment is caused to a workman,
the workman so injured, or in case of death, the members of
his family, as hereinafter defined, shall be entitled to receive
from his employer, and the said employer shall be liable to
pay, the compensation provided for in this Act : Provided,
That recovery hereunder shall not be barred where such em-
ployee may have been guilty of contributory negligence where
such contributory negligence is slight and that of the employer
is gross in comparison, but in which event the compensation
may be diminished in proportion to the amount of negligence
attributed to such employee, and it shall be conclusively
presumed that such employee was not guilty of contributory
negligence in any case where the violation of any statute
enacted for the safety of employees contributed to such
employee's injury; and it shall not be a defense: (1) That
the employee either expressly or impliedly assumed the risk
of the hazard complained of; (2) that the injury or death
was caused in whole or in part by the want of ordinary or
reasonable care of a fellow-servant. No contract, rule, or
regulation shall exempt the employer from any of the pro-
visions of the preceding section of this Act."

XoTK. — The remainder of this statute defines "employer" and "em-
ployee" as used in the statute and j)rovides for the compensation of
such employees when injured, tl is based on the English Compensation
Act.



APPENDIX IJ. 719

NEW JERSEY.

[Laws 1911, p. 134.]

Section 1. "Wlien personal injin-y is caused to an
employee by accident arising out of and in the course of his
employment, of which the actual or lawfully imputed negli-
gence of the employer is the natural and proximate cause, he
shall receive compensation therefor from his employer, pro-
vided the employee was himself not wilfully negligent at the
time of receiving such injury, and the question of whether the
employee was wilfully negligent shall be one of fact to be sub-
mitted to the jury, subject to the usual superintending powers
of a court to set aside a verdict rendered contrary to the
evidence."

XoTE. — The remainder of the statute forbids contracts waiving a right
to damages in case of injuries, easting the burden on defendant to show
"wilful negligence" in the employee; and provides provisions for
compensation, similar to the English Compensation Act. Naturally the
question arises, what is "wilful" negligence? Louisville, N. A. & C. Ry.
Oo. v. Bryor, 107 Ohio 51; — N. E. — .



OHIO.
[Acts of Ohio, 1910, p. 195.]

In 1910 the Ohio Legislature adopted a statute which applies
to any employer, fixing a liability for negligence, abolisliing
the rule of fellow-servant in many instances, and abolishing
assumption of risk in many instances. It then provides as
follows :

Section 6245-1. ' ' In all such actions hereafter brought, the
the fact that the employee may have been guilty of contri1)u-
tory negligence shall not bar a recovery where his contributory
negligence is slight and the negligence of the employer is gross
in comparison. But the damages shall be diminished in pro-
portion to the amount of negligence attributable to such
employee: Provided, That no such employee who may be
injured or killed vshall be held in any degree to have been
guilty of contributory negligence in any case where the viola-



720 STATE STATUTES.

tion of such employer of any statute or law of the state, or of
the United States, enacted for the safety of employees, in any
way contributed to the injuiy or death of such employee
unless by the terms of his employment it was expressly made
the duty of such employee to report such violation to the
employer and the e\adence shows that such employee failed so
to report and that the employer was not possessed of knowl-
edg-e of such violation. All questions of negligence, con-
tributory negligence, and assumption of risk, shall be for the
jur^^, under the instruction of the court."



OREGON.

[Acts 1911, p. 16.]

A statute of Oregon defines what corporations shall be liable
to their, employees, and for what they shall be liable, and
concludes wiih the following section :

Section 7. "The contributory negligence of the person
injured shall not be a defense, but may be taken into account
by the jury in fixing the amount of the damage,"



TEXAS.

[General Laws, 1909, p. 279.]

Section 1. "That every corporation, receiver, or other per-
son operating any railroad, shall be liable in damages to any
person suffering injury while he is employed by such carrier
operating such railroad; or in case of the death of such
employee, to his or her personal representative for the benefit
of the surviving widow and children, or husband and children,
and motlier and father of the deceased, and if none, then of
the next of kin dependent upon such employee, for such injury
or death, 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



APPENDIX H. 721

cars, engines, appliances, maeliinery, track, roadbed, works,
wharves, or other equipment : Provided, The amount recover-
able shall not be liable for the debts of tlie deceased and shall
be divided among the persons entitled to the benefit of the
action, or such of them as shall be alive, in such shares as the
jury, or the court trying the case without a jury, shall deem
proper ; and provided, in case of the death of such employe"
the action may be brought without administration by all the
parties entitled thereto, or by any one or more of them for
the benefit of all, and if all parties be not before the court
the action may proceed for the benefit of such of said parties
as are before the court."

Section 2. "That in all actions hereafter brought against
any such common carrier by [or] railroad under or In' 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 the emploj'^ee may have
been guilty of contributory negligence sliall not bar a re-
covery, but the damages shall be diminished by the juiy 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 con-
tributory negligence in any case where the violations by
such common carrier of any statute enacted for the safety
of employees contributed to the injury or death of such
employee. ' '

Section 3. ' ' That in any action brought against any common
carrier under or by virtue of the provisions of this Act to
recover damages for injuries to, or the death of its employees,
such employee shall not be held to have assumed the risks of
his employment in any case where the violation of such com-
mon carrier of any statute enacted for the safety of employees
contributed to the injury or death of such employee."

Section 4. "That any contract, i-ule, regulation or devise
whatsoever, the purpose or intent of which shall be to enable
any common carrier to exempt itself from any liablity created
by this Act, shall to that extent be void: Provided, That in



722 STATE STATUTES.

any action brought against any such common carrier under
or by virtue of any of the provisions of tiiis Act, such common
carrier may set off therein any sum it lias contributed or paid
to any insurance, relief, benefit, or indemnity that may have
been paid to the injured employee, or the person entitled
thereto on account of the injury or death for which said
action "was brought."

Section 5. ''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 'The Assumed Risk Law,'
enacted by the Twenty-ninth Legislature, and known as
Chapter 163, page 386, of the General Laws of the Twenty-
ninth Legislature, any other Act or Acts of the Legislature
of this state, though in case of conflict this law shall prevail,
or to effect the prosecution of any pending proceeding or right
of action under the laws of this state."

Section 6. "The fact that a conflict may arise between
the Federal courts and the courts of this state in construing
the Federal [statutes] and state statutes of this state in suits
against common carriers by employees for damages on account
of personal injuries, creates an emergency, and on inspection
public necessity exists that the constitutional rule requiring
bills to be read on three several days be suspended and that
this Act take effect and be in force from and after its passage,
and it is so enacted."



WASHINGTON.

[Acts 1911, p. 345.]

The state of Washington has a Workman's Compensation
Act which gives a workman injured in extra-hazardous work,
their families and dependents, compensation "regardless of
questions of fault and to the exclusion of every other remedy,
proceedings or compensation, except as otherwise provided
in the Act.



APPENDIX 11. 72:}

WISCONSIN.

[Laws 1907, pp. 495, 496.]

Section 1816. Crippling or death damages. "Every rail-
road company * * * shall be liable for * * * dam-
ages * * * for all injuries, whether resulting in death or
not, sustained by any of its employees, subject to the provi-
sions hereinafter contained regarding contributory negligence
on the part of the injured employee."

1. Roadbed and machinery defects. "When * * »
such injury is caused by a defect * * * in any locomo-
tive, engine, car, rail, track, roadbed or appliance * * *
used by its employees in and about the business of their
employment. ' '

2. Fellow employees* negligence. "When such injury



Online LibraryW. W. (William Wheeler) ThorntonA treatise on the Federal employers' liability and safety appliance acts, with similar state statutes and federal statutes on hours of labor → online text (page 71 of 73)