pose, judicious) error, the counsel for the plaintiff, always sure of his verdict below, goes up with a reasonable confidence that he can make the court see that the time has come for a little further modification; and the result is that no one is ever sure of what the law in a given case is.

THE CHICAGO, MILWAUKEE AND ST. PAUL R. R. Co. v. Ross.-In Chicago, Milwaukee & St. Paul R. R. Co. v. Ross, 112 U. S. 377; s. c., 17 Am. & Eng. R. R. Cas. 501, the United States Supreme Court saw fit to declare in favor of a modification of the rule, to the effect that the conductor of a railway train is not a fellow-servant with the engineer in charge of its engine, within the meaning of the rule which exempts a master from liability for the negligence of his servant, whereby another servant engaged in the same common employment is injured; but such conductor is the vice-principal of the company.

In reaching this conclusion they relied on the Ohio cases which I have noticed in the earlier part of this note. The Ohio idea is therefore the author and finisher of the superior and inferior limitation upon the rule. The decision was reached by a vote of five to four, Justices Bradley, Matthews, Gray, and Blatchford dissenting. The decision has been welcomed as a finality by the believers in the doctrine. In 1865, the Kentucky supreme court rendered a decision adopting the same view. Louisville, etc., R. R. Co. v. Collins, 2 Duv. 114. (A Kentucky text-writer may be pardoned for reminding his brethren that the doctrine of the Supreme Court of the United States, as expounded in this case, is the Kentucky doctrine declared many years ago in Louisville & Nashville R. R. Co. v. Collins, by our great Chief Justice Robertson, and which has since been the rule in this State." Beach, Contributory Negligence, p. 337.) Mr. Charles Fisk Beach, Jr., writing from the Louisville Courier-Journal Building, and with a prophetic imagination, perhaps infected by the lurid periods which are wont to emanate from that building, proclaims that "verily the doctrine of this case has come to stay." Beach on Contributory Negligence, p. 336, note. Mr. Asa Iglehart, in reviewing the same case, 20 Cent. L. J., p. 86 et seq., points out that the real question in the particular case is one of fact, and that the superiority of the conductor was not in evidence in that case; that it has no existence in fact; and that in importing that fiction into the case, and then recognizing and applying the superior-servant doctrine to it, the Supreme Court of the United States committed gratuitous errors. Of the Kentucky case (championed by the other writer, Beach, Contrib. Neg., p. 337) he says: "It is enough to say that it was decided nearly twenty years ago, and the extract below is anything else but an assurance of the learning and erudition of the court thus attempting to establish a new line of decisions; the utterances by the court do not add much weight to the opinion thus enunciated. The extract is as follows:

"This is the only doctrine we can recognize as consistent with the enlightened and homogeneous jurisprudence of the clearer day of its ripening maturity; and, looking through the mist of the adjudged cases and elementary dicta, we can see no other fundamental principle which can mould them into a consistent or abiding form. That principle is the only safe clew to lead the bewildered explorer to the light which shows the sure way to the right, and proves the true doctrine of American law."

Mr. Iglehart concludes: "It would seem inevitable that any fancied benefit which the court may contemplate from the change of the rule will be overbalanced by the increase of litigation resulting therefrom. . . . But it is not probable that a rule of law so well settled will be unsettled by one opinion, however high the court announcing it-certainly not by an opinion with so shadowy a foundation and rendered by a court so evenly divided. It may rather be predicted that when this question next comes before this

court the eminent justices who dissented in this case will be in the majority."

XII. THE RATIONALE OF THE GENERAL RULE.-From this résumé it will be seen that the law implies a contract on the part of the master to provide, select, and maintain suitable machinery appliances, places for work, and suitable fellow-servants; and on the part of the servant it implies a contract something like this: "I know what kind of work I am going into. You do your duty in furnishing the equipment, and I'll take my chances."

That there are hardships in this rule no one can deny; that it is the best possible rule would be a hardy assumption. But I firmly believe that it is not the province of the courts to modify the rule. That is the field of the legislature, and accordingly in many jurisdictions we find them at work upon it.

XIII. STATUTES.-The Employers' Liability Act, 1880, L. R. 15 and 16 Gen. Sts. 258 (43 and 44 Vict. c. 42), makes the master liable for accidents happening: (1) By reason of any defect in the ways, works, machinery, or plant. (2) By the negligence of persons in superintendence.

(3) By the negligence of superiors.

By acts or omissions done in obedience to orders to which the servant was bound to comform.

(5) By acts or omissions in obedience to by-laws or particular instructions given by persons delegated with authority in that behalf.

(6) By reason of the negligence of any person in the service of the employer who has the charge or control of any signal points, locomotive, engine, or train upon a railway.

There are exceptions to these classes which need not be noted in detail. It is interesting to note that the Parliamentary committee having the subject in charge, in their report on the state of the law, adopted the opinion of Chief Justice Shaw in Farwell v. The Boston & Worcester R. R. Corp. as their statement of the existing law.

Statutes are now in force in

California. Codes, 6970-71, §§ 1970–71.

Dakota. Code 1877, p. 396, art. 2, following that of California.

Georgia. Code 1873, p. 521, 3036.

Iowa. Code 1880, vol. 1, p. 342, § 1307.

Kansas. R. L. 1879, p. 784, c. 84, § 4914 (enacted 1874)

Mississippi. Code 1880, 309, § 1054.

Montana. R. S. 1879, 471, § 318.

Rhode Island. Public Statutes 1882, 553, c. 204, § 15.
Wisconsin. L. 1875.

Wyoming. Compiled Laws 1876, p. 512, c. 97, § 1.
Missouri. R. S. 1879, p. 349, c. 25, § 2121.

A convenient summary of these statutes is given by Mr. Beach in his valuable work on Contributory Negligence, pp. 379 382.

XIV. CONSTITUTIONALITY AND VALIDITY OF STATUTES.-Some of these statutes are directed especially against railroad companies. In the principal case of The Missouri Pacific R. R. Co. v. Mackay, given above, it was contended that such a statute was unconstitutional, under the Fourteenth Amendment to the Constitution of the United States, forbidding each of the States to "deny to any person within its jurisdiction the equal protection of the laws." The contention was that placing this burden upon railway companies and not upon other employers was unequal.

It seems that the objection is not well taken. If it were, then laws requiring railway companies to uniform their employees, would be unequal; laws requiring railway employees to complain in the magistrates' courts of violations of the act against minors jumping on trains would be unequal; and laws requiring railways to fence their tracks would be unequal.

The law in controversy and all these laws proceed upon the idea that a railway operated by steam causes special dangers, and that such dangers may be made subjects of legislation in a proper exercise of the police power. These laws apply to all railways equally, and this must be taken to comply with the spirit of the amendment.

The question has also been mooted whether statutes similar to the Iowa statute, imposing such liability on masters, "any contract to the contrary notwithstanding, and such contracts to be void," are valid; but the question, fairly presented, scarcely affords room for discussion. The law restrains alienation of property, restrains a contract by a tenant, giving the landlord power to eject without notice, and in numerous ways restrains the "right of free contract."

XV. RAILWAY-ACCIDENT INSURANCE.-Several of the railway companies in America have adopted the system of employees' accident insurance companies, requiring their employees to pay a certain amount from their wages into a common fund, from which losses are paid, and insuring the employees against losses by accidents.

The plan has many commendable features, and we are informed by the newspapers that Bismarck is favoring a similar scheme of governmental insurance for all operatives. Several amendments to the scheme as now in operation would be necessary to make it safe and equitable. Thus, unless the company contributes to the insurance fund, the employees are compelled to pay for losses caused by defective machinery or other results of the company's negligence. Again, the effect of such insurance upon the injured servant's right of action against the company, in the respective cases when the company contributes to the insurance fund, and when it does not, would need legal regulation. Again, the custody and management of the reserve fund of the company would present important questions. Shall the employees build up a fund and leave its custody to the officers of the company? Have the officers of our railway companies the time to administer the affairs of such an insurance company in addition to their other duties? Are railway officers ex officio good insurance officers? And, most important of all, is it wise in the present relations of employers and employees for the companies to seek to control such a fund created by their employees? Is such an attempt likely to be generally successful?

Again, the burden of maintaining such a charge, and managing the business incident thereto, while not likely to rest severely upon the larger companies or their employees, would render it impracticable when applied to some of our smaller roads.

And yet the workings of the accident-insurance plan seem likely to be much better than the workings of the present law. At present the company gets off in many cases when it ought to pay, and is oppressed with unconscionable verdicts when it ought not to pay. We are told that in this controversy juries are organized on the side of poverty, and courts on the side of property. In the majority of cases the fault rests upon a fellow-servant who is worthless; the company is not liable under the existing law, and the barren remedy against the co-employee is all that is left to the sufferer; and, as will be seen, even that was once denied in Massachusetts. Albro v. Jaquith, 4 Gray, 99; overruled, 1881.

The accident-insurance plan would provide a fund for all these cases, and if properly participated in by the companies, under the sanctions of law, might be substituted for the liability in damages under the present law.

Roughly to sketch out such a law, suppose that an experienced statistician were to take the statistics of railway accidents for a period of years, and, using all accessible information, compute the ratio of railway accidents caused by the negligence of employees to the total number, and in the same manner the number of accidents due to negligent or reckless orders of the manage

ment (as in the New York case, supra, where the telegraphic order to the engineer ran "wild-cat to Cayuga regardless of 50"), also from the use of defective machinery and from the failure of the companies to use due care for their employees in maintaining their plant and corps of employees, and then let the burden of maintaining the insurance fund be divided between the companies and the employees on that ratio. Let all the companies and railway employees in a State, say, be required to join in one common fund.

Then let the employees and the companies have a voice in electing the officers and determining the management in proportion to their respective contributions to the fund. This would include the smaller roads, and their membership would be advantageous both to them and their men and to the larger companies. Give this large accident insurance company a separate management, with officers not connected with any of the railway companies interested. A company of this size could employ first-class insurance officers to manage it and pay them well, and yet be operated at trifling cost as compared with the average insurance company. The large item of expense with the ordinary insurance company, of maintaining a corps of insurance solicitors in the field, would be done away. Let the ordinary rules of contributory negligence apply to the claims and proofs of losses, and let the insurance protection be in lieu of the liability in damages.

No doubt there would be considerable difficulty in procuring the enactment of such a scheme, and when enacted many unforeseen difficulties of detail would arise, and there would be some floundering before it could be made to run smoothly.

The advantages of the plan over the present anomalous system of verdicts for the plaintiffs and reversals above, are obvious.

It would, to a great extent, remove the ill-feeling occasionally produced in the adjustment of servants' claims for personal injuries. But it would do more than this. The hostile feeling between capital and labor is one of the ominous signs of the times. The proposed plan would tend to bind the railway company and its operatives together with new ties of common interest. The indemnity so furnished by the company to its employees, and by the employees to the company, would give each an increased sense of security. Their common contributions to a joint fund, their joint ownership of the fund, and joint interest in the management of the fund-in a word, the mutuality of interest, always existing, in fact, though generally lost sight of, between capital and labor, but here developed in a new and most important form, and avowedly made the controlling feature of the plan-would go far to remove feelings of hostility.

The plan would probably prove popular with the employees, judging from the general popularity of mutual insurance and benefit societies among them. The only persons likely to be injured would be professional accident lawyers and professional labor-reformers, and we may expect them to organize a powerful lobby against the bill when it is brought in.

The proposed plan applies only to railway companies. The vast army of manufacturing employees would be unaffected by it. The railway field is no doubt the easiest field in which to try the experiment. When placed in operation, if found to work well, it could gradually be extended to other fields. Meanwhile it seems that such an act as the English Employers' Liability Act would be a good thing for the field not covered by the insurance plan.

WHITSETT

v.

CHICAGO, ROCK ISLAND AND PACIFIC R. R. Co.

(Advance Case, Iowa. October 20, 1885.)

Where a brakeman on a freight train, whose duty it was to go forward and open a switch, jumped from the first car to the engine tender, held that the testimony of brakeman was admissible to show such to be the usual custom, and that it was easier to jump on the tender, and go from it to the engine steps, which were nearer the ground, than to go down the ladder on the side of the car.

But a witness testifying to such custom cannot be permitted to testify also that in going from the top of a box car in the rear of the tender to the engine he would jump down on the same place in the tender on which plaintiff testified he jumped.

It may be shown also that if the motion of the engine is suddenly increased after the speed of the train has been checked by the brakes, it produces a jerking of the cars more or less violent, and sometimes sufficient to break coupling-irons.

Instructions must be based upon evidence and pleadings.

When the circumstances and facts of a case are proven by direct testimony, it is error to instruct the jury that they should consider and give proper weight to the instincts and presumptions which naturally lead men to avoid injury and preserve their own lives, in determining whether at the time the plaintiff was injured he was in the exercise of ordinary care.

The question whether a party has been guilty of negligence is not always one of law, when the facts are undisputed; but where the facts are such that but one conclusion can reasonably be drawn from them, it is the province of the court to determine that conclusion. When different minds might reasonably reach different conclusions from them, the parties are entitled to have the question determined by the jury.

APPEAL from Mahaska district court.

Action for the recovery of damages for a personal injury sustained by plaintiff while in defendant's employ as a brakeman on one of its trains, in consequence, as is alleged, of the negligence of the engineer in charge of the engine which was hauling said train. There was a verdict and judgment for plaintiff. Defendant appeals.

M. A. Low for appellant.
Bolton & McCoy for appellee.

REED, J.-Plaintiff was employed as head brakeman on a freight train. He had been in defendant's service about 10 days at the time he received the injuries complained of, but had some experience as brakeman on another road before entering defendant's employment. At the time of the accident he was making his first trip with the engineer who was in charge of the engine. The accident happened as the train was approaching a

FACTS.