year 1939. The cost of this first year of training would be approximately $99,425 for the 500 college sophomores, and $190,668 for the 2,000 young men of highschool age, the average cost of the latter being approximately $90 per man. This figure includes certain items of cost which would not be recurring for the same number of trainees during the following and succeeding years so that the ultimate average cost would be approximately $60 per man. The Navy Department recommends that the proposed legislation be enacted. NAVY DEPARTMENT, Washington, December 9, 1937. THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, Washington, D. C. MY DEAR MR. SPEAKER: Reference is made to the Navy Department's letter of August 20, 1937, with which was transmitted a draft of a proposed bill to provide for civilian naval training, and for other purposes. The Navy Department recommended that the proposed measure be enacted. After further study and consideration of the proposed measure, it is the opinion of the Navy Department that section 3 of the proposed bill, which provides for medical and surgical treatment, hospitalization, etc., of trainees, should be revised to eliminate provision for rehospitalization and treatment in the homes of trainees, and to provide that trainees engaged in theoretical winter instruction or correspondence courses of instruction at their homes shall not be entitled to the same care prescribed for those undergoing other and more rigorous types of instruction and training. It is felt that the Government would be assuming more than the requirements of the situation indicate should it undertake rehospitalization and home treatment for trainees, and should it assume the responsibility of furnishing medical and surgical care for those engaged in instruction at their homes or schools by means of correspondence courses or other types of training except actual instruction and training with some naval activity. Therefore it is recommended that the proposed draft of legislation submitted with the Navy Department's letter of August 20, 1937, be amended by substituting the following for section 3 of the proposed bill: "SEC. 3. Persons undergoing naval training and instruction as herein authorized, under specific orders for such training and instruction, who suffer personal injury or contract disease in line of duty while en route to or from the places designated for their naval instruction and training and while in attendance thereat, shall under such regulations as the President may prescribe, be entitled, at Government expense, to such medical, surgical, and hospital care as is necessary for the appropriate treatment of such injury or disease until the disability resulting from such injury or disease cannot be materially improved by hospitalization or treatment, and to the necessary transportation and subsistence incident to such medical and hospital treatment and return to their homes when discharged therefrom: Provided, That the above provisions shall not apply while such persons are engaged only in the theoretical winter instructions or correspondence courses of instruction at their homes." This amended section 3 will make ample provision for the care of those who may be injured or become ill while undergoing training and will not have the effect of committing the Navy Department to a program of care for trainees which would be at once costly, difficult to administer, and unnecessary. The change recommended herein will involve no increase in the estimate of cost made in the Navy Department's letter of August 20, 1937. The effect of this change will be to decrease costs. Sincerely yours, о CLAUDE A. SWANSON. 75TH CONGRESS HOUSE OF REPRESENTATIVES 3d Session { REPORT No. 2153 AMENDING THE EMPLOYERS' LIABILITY ACT APRIL 18, 1938.-Referred to the House Calendar and ordered to be printed Mr. RAMSAY, from the Committee on the Judiciary, submitted the following REPORT [To accompany H. R. 10250] The Committee on the Judiciary, to whom was referred the bill (H. R. 10250) to amend an act entitled "An act relating to the liability of common carriers by railroad to their employees in certain cases, approved April 22, 1908 (U. S. C., title 45, sec. 51), after consideration report the same favorably to the House with the recommendation that the bill do pass. This bill, seeking to amend section 51 of chapter 2, title 45, of the Code of Laws of the United States, reads as follows (existing law in roman, new matter proposed to be added in italics): That liability of common carriers by railroad, in interstate or foreign commerce, for injuries to employees from negligence: Every common carrier by railroad, while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District_of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such 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 insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. 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 negligence of such common carrier, its officers, agents, or employees, proximately contributed to the injury or death of such employee, except those risks that are incident to the employment. H. Repts., 75-3, vol. 233 The evil sought to be remedied by this bill may be briefly stated. The original purpose of section 5 of the Federal Employers' Liability Act was to prevent the employer from escaping liability by means of relief associations or other organizations maintained by the employer and supported in whole or in part by contributions from the employee. Since the original act was adopted, the aggressions of the courts have given to the defense of assumption of risk a scope and quality that threatens the enforcement of the act. At the beginning this defense was deemed to be at most a jury question. But repeated holdings have encroached more and more upon the right of the employee and various new doctrines or amplifications of previous principles have tended constantly to treat this defense as one to be determined by the courts as "matter of law"taking it away from the jury; and the courts have decided now it is a question of law. The point can be best illustrated by concrete cases and decisions. For example, in N. Y. C. & St. L. R. R. v. McDougall (15 Fed. 2, 283) the plaintiff was employed in the defendant's service in Cleveland as a brakeman. He was swept from the top of a car by a low bridge which had less than the usual or the statutory clearance. The defense was that the plaintiff assumed the risk because the plaintiff had previously signed a receipt for a timetable which contained reference to lack of clearance in the Cleveland district. Because he had signed a timetable which made reference to this, the court held that he had knowledge of it. The plaintiff was thus charged with notice of a negligent condition being maintained by the railroad. Manifestly, he was bound constantly to recall the locations of all bridges, and, irrespective of other distracting circumstances, such as the need for watching signals, lightings, weather conditions, and jerking of train movements, was required at all times to know just where he was and just what were the impending dangers. This rule places on an employee a tremendous burden for him to keep constantly in mind where every tunnel and every low bridge was and when he was injured to say, "Well, you were negligent, and therefore you cannot recover, because of your contributory negligence in this case." The court, in the case cited, charged the plaintiff with assumption of risk, held that he must keep constantly in mind the location of all bridges and their lack of clearance, irrespective of the special conditions prevailing at the moment; ruled as matter of law that the plaintiff's testimony as to lack of knowledge was a nullity since he had passed beneath other bridges in safety in the same district and held as matter of law that upon such facts, the plaintiff would assume the risk. It will be seen at once that this doctrine is capable of indefinite extension. If it is proper to charge a man with notice by means of bulletins or time tables, so that all negligently maintained bridges furnish no basis for liability, then every railroad company in this country may maintain an unlimited number of such dangers and may escape liability by mere notices, which a man seeking to secure or retain a job may easily be induced to sign. This clearly is a species of contract against negligence-a type of obligation which has been oftentimes held void at common law. An employee on a railroad working in darkness and storm, and required by his duties to receive and transmit signals, could not be expected to remember every foot of right-of-way, every bridge, pole. structure, or other obstruction along the tracks. To exact from an employee, in advance of actual knowledge an admission of legal knowledge is tantamount to securing a contract from the employee, whereby he agrees that the company may be as negligent as it wishes to be and that the employee bargains away the protection given him by the law. Of course, if it were not for signing this timetable if he were not required to do that the common law would take care of him. By way of contrast to this Federal decision, attention is called to Brant v. C. & A. R. R. Co. (128 N. E. 732-737), where the highest court in Illinois held that an agreement by an employee to assume the risk of existing conditions in the yards of the company was violation of section 5 of the Federal act. That section provided: 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. In other words, such a scheme of charging notice to an employee is a device to escape liability. There is pending at the present moment in the courts of Cuyahoga County, Ohio, an action involving insufficient clearance, absence of telltales, and the question of notice exactly similar to that presented in McDougall v. R. R. supra, the railroad and the tracks involved being the same as in the McDougall case. Needless to say, Needless to say, the defense of the assumption of risk on the basis of timetable notice will be the same. If the McDougall decision is followed, the injured man will be defeated. If the Illinois case is followed, the question will at least be for the jury. The purpose of the proposed section is to outlaw such methods of avoiding liability. If one railroad may, as to one obstruction over or beside its tracks, charge the whole burden upon the employee, then all railroads may, as to all obstructions upon or near their tracks, escape all liability, as a matter of law, as to such obstructions. As a practical matter, it could be shown that no trainman could possibly attend to his duties and at the same time keep constantly in mind the location and clearance of every conceivable obstruction which the employer might choose to maintain over or near tracks. The decision of the Illinois Supreme Court, cited supra, is a clear recognition that the prohibition of devices, regulations, and so forth, to defeat liability covers a subject matter outside of relief associations, against which the provisions of section 5 were mainly directed. Section 2 provides that where the employer is maintaining a dangerous and negligent situation, the fact that the employee is alleged to have been made aware of it will no longer exculpate the employer. An example taken from a recent decision will illustrate how this principle of assumption of risk has served to defeat legitimate actions. In Jacobs v. Southern Ry. Co. (241 U. S. 229) a railway fireman while trying to board his engine fell under the wheels as a result of a pile of cinders alongside the track. The defense was assumption of risk due to plaintiff's knowledge of the company's negligence. The court held that the momentary forgetfulness of Jacobs made no difference; that the principle of contributory negligence which, of course, would only have been a partial defense, could not be invoked; that in nonsafety appliance cases the original doctrine of the common law as to assumption of risk would apply and would totally defeat the action. While some courts give scope to the question as to "appreciation of risk" (even with knowledge of it) even that qualification was refused application in the Jacobs case. Not even actual knowledge and actual appreciation of the danger are requisite to make out the defense. It is sufficient if the danger be "so open and obvious that an ordinarily prudent person must necessarily have observed and appreciated it" even though such danger is occasioned by the master's negligence. Boldt v. Penn. Co. (245 U. S. 441); Gila Valley Ry. v. Hall (232 U. S. 94). A great many decisions could of course be cited upon this point but it is believed that they can be summarized by the statement that the habitual negligence of the employer literally becomes clothed with a prescriptive right. The only type of employer's negligence which leaves the employee wholly free from the defense of assumption of risk is the suddenly developing act or hidden condition of which the employee could not have had advance knowledge. For example, in C. R. I. & P. Ry. v. Ward (252 U. S. 18), the defense was denied where a railroad conductor gave an improper signal and the employee was thrown from the train. In thousands of cases the doctrine is complicated by "promise to repair," "preemptory order," and other special incidents. The "simple tool" doctrine also arose as an exception. The "promise to repair" aspect of the question is further confused by two superimposed theories; that the employee may rely upon such promise for a reasonable time and, next, that if the danger was so manifest that no reasonable person would act upon such promise, then assumption of risk is reestablished. Southwestern Co. v. Schmidt (226 U. S. 162). All this nonsense has been swept away with respect to safetyappliance requirements. But from the practical viewpoint of a railroad employee, it should also be swept away as to the situations of danger which exist upon every railroad where the employer is guilty of negligence. If attention be paid to the provisions of section 1 of the act of 1908 (title 45, sec. 51) the liability of the employer was conceived of as relating to negligence by reason of any defect or insufficiency in its cars, engines, applicances, machinery, track, roadbed, works, boats, wharves, or other equipment. It is quite difficult to attribute to Congress a purpose to create liability for negligence as to these matters, but to accord recognition to the right of the employer to be negligent with respect to them. Yet, by the construction of section 4 of the act (title 45, sec. 54) the implication was held to arise, out of the affirmative prohibition of assumption of risk in safety-appliance cases only, that as to all other cases of negligence the defense of assumption of risk was still left in full force if knowledge or notice, either actual or constructive, could be fastened upon the employee (Seaboard Line v. Horton, 239 U. S. 595). A reading of the report of the committee of Congress at the time of the adoption of the Employers' Liability Act will show that foremost in the minds of the legislators at that time was to set aside the defense of fellow servant which, therefore, had been a genuine bulwark |