of defense for the employer, and next, to cut down the efficacy pro tanto of the doctrine of contributory negligence. Except in the case of violation of the safety-appliance acts, no mention was made of assumption of risk.

It is a reasonable inference that the legislators of that day were unaware of the devastating scope which could be accorded to the latter defense. I think that is true. I do not think that Congress ever dreamed, when it passed this former law, that this defense would ever be raised by the use of these articles mentioned. It is a fair guess that they were not fully cognizant of the extraordinary capacity of that doctrine to embrace the established negligence of the employer. Nor is it likely that they realized that in the order of precedence, that is to say, in the hierarchy of defenses, the doctrine of assumption stood at the head of the list.

In a closely reasoned and scholarly discussion of these two doctrines, the Supreme Court of Massachusetts has shown that if there is a question of assumption of risk in the case, it occupies a place of preeminence as against all other questions. In fact, if it can be made out it dispenses with any inquiry as to whether there was any duty on the master; or any violation of that duty; or any negligence on the part of the injured man; or any question of proximate cause.

From the opinion of Lummus, Judge (Hietala v. Ry., 3 N. E. 2, 378), the common-law status of the doctrine is thus stated:

There is no relation between contributory negligence and what has often loosely been called the contractual assumption of risk. That expression denotes the rule of law that an employer owes no duty to an employee to change the equipment, methods of operation, and other conditions which obviously existed and were apparently contemplated by the parties when the contract of service was made, even though they were fraught with danger that might be avoided by the adoption of improved equipment or methods.

Further at page 380:

The effect of the doctrine of voluntary assumption of risk, it has been said, is to render unnecessary an analysis which might determine whether the ultimate ground of denial of recovery is absence of duty or breach of duty, want of proximate causal relation, or contributory negligence.

Where there has been a voluntary assumption of risk, the defendant is entitled to have analysis go no further. If the voluntary assumption of risk is clear enough to warrant a directed verdict, "the jury should be instructed that he (the plaintiff) cannot recover, and should not be permitted to consider the conduct of the defendant by itself, and find that it was negligent, and then consider the plaintiff's conduct by itself, and find that it was reasonably careful."

It is believed that had the Congress of 1908 realized that assumption of risk occupied such a position in the law as is indicated by this outline of the doctrine, there would have been at least as much attention devoted to some limitation upon the defensive effect of the doctrine as was applied to the related doctrine of contributory negligence. There are many persuasive reasons for this belief. One is, that the two doctrines are so closely blended together in the facts of many cases that it was somewhat futile to include the doctrine of comparative negligence so as to permit an offset in the one case and yet allow an equally fatal doctrine to subsist alongside of it with no privilege of deduction or comparison. Take as an illustration the Jacobs case cited, supra. In the courts of Virginia in the trial of that case it was thought that a man getting on the engine was at most guilty of contributory negligence and the jury was instructed to make such deduction as the law required upon that theory. Certainly, the facts

were referable to the injured man's conduct as to being careful or otherwise. Yet the Supreme Court, as we have seen, swept aside that defense, which was only partial, and gave full scope to the other aspect; thus the correctness of the views expressed by the Massachusetts court as to the primary and dominant status of assumption of risk with respect to contributory negligence was given practical effect.

The foregoing considerations would furnish warrant for a much more complete modification of this defense. However, the provisions of the bill do not abolish the defense but only modify it in certain particulars.

All that is attempted is to prevent the master from charging the employee with assumption of risk as to specified, continuing, and established dangers which the master maintains and which he seeks to charge the employee with knowing about through some form of writing, notice, contract, or communication. Manifestly, all that is sought to be done is to prevent the master from embarking upon a practice of negligence with respect to the physical conditions upon and along the right-of-way. As to the ordinary perils of the business, such as the jerks of trains, the ordinary dangers of mounting and dismounting from cars and all the rest of the common and indispensable dangers, the law is left untouched. I do not touch that, but this other bill does. Also it must be noted that the courts still will have to determine what is negligence. The definition of that term is not changed. This other bill does make a change.

For example: A number of cases have reached the courts where a trainman struck a mail crane which was placed at the distance proper for its normal functioning and also at such point as the laws of the State permitted. Under the present bill there would not be any modification of the present law as to what constitutes negligence (Randall v. B. & O. R. R., 109 U. S. 478 (switch stand); So. Pac. R. R. Co., 152 U. S. 45; C. & O. Ry. v. Lertch, 276 U. S. 429; So. Pac. Ry. v. Berkshire, 254 U. S. 415; Atl. Coast Line v. Powe, 283 U. S. 401).

Similarly, where the accident arose from the operation of trains in yards-sectionmen, brakemen, and so forth-the bill does not seek to touch the situation but leaves the law as it is, namely, that in the absence of special custom or unusual circumstances, a man who is run over by a switching movement cannot recover (Toledo, St. L. & W. Ry. v. Allen, 276 U. S. 165; Kansas City, etc., v. Jones, 276 U. S. 303; Mo. Pac. Ry. v. Aeby, 275 U. S. 426; C. & O. Ry. v. Kuhn, 284 U. S. 44).

It has already been stated that the apparent original purpose of section 5 relating to devices was directed chiefly against the various schemes of the railroad companies as to their relief associations. It may be argued that since that was the purpose, it will be incongruous to attach to that section a provision which reaches out and embraces the master's negligence as to physical conditions. If we refer back to the report of the House committee which passed on the act of 1908, we will see that at that time the thing that was in the committee's mind was any form of contractual escape from liability. This is shown by the references to the various types of contract under which the employee surrendered his right to sue for the master's negligence as a condition of entering the employment. Whether the master was relieved from the consequences of his negligence in one respect or the other is beside the point. It should be remembered that the highest

national court has uniformly upheld contracts against negligence: See cases cited infra.

While many State courts have held that an employer cannot stipulate against his own negligence, when we are dealing with Federal courts, it is necessary to observe the paramount law, especially when all questions of liability under the acts are to be determined under the applicable decisions of the highest Federal tribunal.

Merely by way of illustration of how the question has been dealt with in other jurisdictions, it may be of aid to examine the Ohio statute on this question. (Parenthetically it should be said that State statutes have no effect whatever upon litigation as to liability under the Federal Employers' Liability Act.) It may further be noted that since the passage of the Ohio act, railroads have managed to live under the law as it is and so far as we know there never has been any attempt to repeal or modify the act in question. A copy of the material features of the act follows:

G. C. 9017:

Every railroad shall be liable to an employee for injury or death; when such injury or death is caused by a defect in any locomotive, engine, car, handcar, rail, track, machinery, or appliance required by such company to be used by its employees in and about the business of their employment, if such defect could have been discovered by reasonable and proper care, tests, or inspection. Proof of such defect shall be presumptive evidence of knowledge thereof on the part of such company. An employee of such railroad company who is injured or killed as a result of such a defect, shall not be deemed to have assumed the risk occasioned thereby, although continuing in the employment of the company after knowledge of the defect; nor shall continuance in employment after such knowledge by an employee be deemed an act of contributory negligence.

A similar feature appears in the General Employers' Liability Act of Ohio, and there never has been any complaint that the act was unfair and so far as we have heard, there has never been any attempt to repeal it. General Code 6242 et seq.

A thorough study of statutes of other States would probably disclose that many other States have enacted similar laws. Long ago the harsh rules of the common law were set aside in many jurisdictions on the question of the fellow-servant doctrine. Compare original Judiciary Committee reports of House and Senate 1908-10.

We would not be sufficiently presumptuous to say that the proposed language of the bill is the most perfect to attain the objectives contemplated. But the substance of what is attempted is to place the defense of assumption of risk in a classification, at least in part, that prevents it from destroying the plaintiff's case by charging him with the employer's negligence. If it were prudent to do this as to safety appliances; if it were prudent to do this as to contributory negligence, a fortiori is it imperative that it be done as to this sweeping doctrine to which such wide latitude has recently been given.

There is a possibility that it will be urged that the only purpose of the original section 5 was directed against relief associations. It would be found, however, that the House Judiciary Committee, which passed upon the act of 1908, examined the whole question very broadly and reviewed such cases as Voight v. B. & O. S. W. R. R. (176 U. S. 498), in which the Supreme Court upheld an advance release by an employee of the American Express Co. The comn.i.tee also noted O'Brien v. Ry. (116 F. R. 502), where an Iowa statute declaring such contracts invalid was upheld although the Court voted that at common law such contracts would be enforced against the

employee. Incidentally, the Supreme Court of Ohio refused emphatically to follow the case of Voight v. Ry., supra, and held that a release in advance by a Pullman employee who was injured through the negligence of the company would not be upheld.

P., C., C. & St. L. Ry. v. Kinney, 95 O. S. 64. Such contracts are expressly forbidden by Ohio General Code, section 9011.

The discussion in the House Judiciary Committee report indicates that the Judiciary Committee was desirous of thwarting any scheme by which the employer could contract away its negligence. That was clearly the intent of our original act, but we were not able to do it.

For these reasons, and for many others, it is believed that the provisions of this bill can properly be applied to any form of clause in any writing or to any attempted notice, even if given orally.

All that is sought to be done is to prevent the employer from casting the burden upon the employee, with respect to a negligently maintained condition through devices and methods described. In all other respects the doctrine of assumption of risk still persists.

The effect of the passage and adoption of this bill, in negligence cases arising out of the failure of the employer to furnish the employee a safe place to work, and to furnish him with sound and safe tools and implements to perform such work, will be to restore to the common law rules of assumption of risks, except those risks that are common and incident to the employment.

MINORITY VIEWS OF MR. GWYNNE

This bill should not be enacted at this time for the following reasons: 1. It will be a burden on the railroads at a time when it is doubtful if they can survive their present difficulties.

2. It will be of no benefit to the great majority of the employees. 3. It will delay the enactment of real legislation on the subject, to wit, a railway employees' compensation act.

The financial plight of the railways is too well known to need elaboration here. The employees, the owners, and the public generally are now looking to Congress to devise some way to keep the railroads operating. This bill would add to their burdens by removing the defense of assumption of risk from those cases in which it now obtains. It would, of course, increase the number of suits against them. Everyone knows that many lawyers throughout the country specialize in damage cases against railroad companies. Many of them have their "runners" who actively solicit these cases on a percentage basis. This group of people will, of course, be benefited by this legislation.

Under the common law, the liability of the master for injuries to his servant was settled in accordance with the broad principles applicable to torts generally. As business and industry became more complex, the law on this subject became very confused. There was developed and applied the principles of contributory negligence, of assumption of risk, of negligence of the fellow servant, etc. Payment to the injured employee was made to depend upon the application of these rules through an expensive course of litigation. Eventually an enlightened sense of justice demanded that injuries to employees should be treated as an expense of the industry, and charged to the consuming public. The result was the workmen's compensation acts, now almost universally in operation throughout the English-speaking world. These acts were a radical departure from the old theory of liability under the common la. No question of negligence was considered. The question of payment was determined by the answer to a simple question, "Did the injury arise out of and in the course of the employment?"

In order to receive the benefits of this legislation, both employer and employee gave up certain rights guaranteed them under the common law. The employer gave up practically all of his defenses, such as freedom from negligence, assumption of risk by the employee, contributory negligence, etc. The employee in turn gave up his valuable right to have a jury assess the amount of his damages, and accepted payment in accordance with a schedule fixed in the law.

The success of this type of legislation is indicated by the fact that 46 States and the District of Columbia now have in operation workmen's compensation acts. Congress has also passed the Federal Employees' Compensation Act and the Longshoreman's and Harbor Worker's Act.