tools therein; that on the day of the accident the plaintiff and others of the gang, at the hour to quit work, started north toward the tool house carrying the tools with which they had worked; that before reaching a bridge they had to cross they met a hand car, used on the section, going south to get some tools to carry back to the tool house; that this car was operated by some of the same gang of section men; that this car, upon returning, on its way to the tool house, overtook the plaintiff and two others while they were on the bridge; that said car was running at a speed of about 8 miles an hour, and struck the plaintiff, knocked him down, ran over and injured him. In this same statement the judge said: "I find that the men operating the hand car were negligent in running upon plaintiff, and that plaintiff did not contribute to his injury by any negligence upon his part. Yet I render judgment for defendant because I conclude that the plaintiff and the section men operating said hand car were fellowservants, and I further find that plaintiff was not engaged in operating the trains, cars, or locomotives of defendant." From the judgment of the trial judge the plaintiff appealed the case to the court of civil appeals for the second division of the State, which court, after a hearing, affirmed the judgment of the trial court. The plaintiff then carried the case upon a writ of error before the supreme court of Texas, which rendered its decision June 25, 1900, and reversed the judgments of the lower courts.

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Chief Justice Gaines delivered the opinion, and, in the course of the same, he said:

The trial court's conclusion that the servants upon the hand car, whose negligence caused the injury, were the fellow-servants of the plaintiff, was assigned as error in the court of civil appeals, and is assigned in this court. That, according to the rulings of this court, these employees would have been fellow-servants at common law, there can be no question. But the common law in regard to fellow-servants has been changed by statute in this State. The legislature has passed three acts upon the subject, each of which has had the effect of placing restrictions upon the rule.

The judge at this point mentions and comments upon the first two acts and then continues:

The act of June 18, 1897, makes more sweeping changes. The first section excludes all persons "engaged in the work of operating the cars, locomotives or trains" of a railroad company from the rule of fellow-servants. Section 3 is a substitute for section 2 of the previous act, and is as follows: "All persons who are engaged in the common service of such person, receiver, or corporation, controlling or operating a railroad or street railway, and who while so employed, are in the same grade of employment and are doing the same character of work or service and are working together at the same time and place and at the same piece of work and to a common purpose, are fellowservants with each other. Employees who do not come within the provisions of this section shall not be considered fellow-servants."

The additional limitations placed upon the rule by the language just quoted are two: First, the employees must be doing the same character of work; and, second, they must be working at the same piece of work. In determining this case we may concede, for the sake of the argument, that the men who were engaged in carrying in the tools at the time the accident occurred were working together at the same time and place, and to a common purpose. They were clearly of the same grade of employment. The questions, then, to be determined. are: Were the men who were operating the hand car and the plaintiff engaged in the same character of work? and were they engaged in the same piece of work, within the meaning of the statute? Neither the meaning of the terms "character of work" nor that of the words "same piece of work" is at all clear. When applied to the complicated constructions and repairs incident to the business of railroads, terms more indefinite could hardly have been found. We must, therefore, forbear the attempt to lay down any general rule to be followed in their construction and application, and content ourselves with the endeavor to apply them to the particular facts of this case.

The work immediately at hand when the injury was inflicted was the carrying of the tools to a place of safety. For the accomplishment of this purpose, some of the employees (including those through whose negligence the injury was inflicted) were using a hand car, while others, including the plaintiff, were merely carrying them in by hand. The means employed by the former was so distinctly different from those in use by the latter that we are of opinion that they were engaged in a different character of work within the meaning of the statute. Nor do we think that it can be said that at the very time of the accident the plaintiff and those operating the hand car were doing the same piece of work. If the injury had been inflicted by one of the employees working the hand car upon another who was then engaged in operating the same car, it should be held that they were engaged upon the same piece of work. But it would seem that each employee who was carrying one or more tools without the aid of another was engaged in a different piece of work from that which was being done by any one of his coemployees. Our conclusion is that the court erred in holding that the servants upon the hand car were fellow-servants with the plaintiff, and therefore the judgment must be reversed.

EMPLOYERS' LIABILITY-RAILROAD COMPANIES-CONTRIBUTORY NEGLIGENCE OF THE EMPLOYEE, ETC.-Quirouet v. Alabama Great Southern Railroad Co., 36 Southeastern Reporter, page 599.-Action was brought against the above-named railroad company by A. J. Quirouet to recover damages for injuries incurred by him while in its employ and due, as he alleged, to its negligence. The evidence showed that he was employed as a flagman on one of the company's freight trains; that he sought to mount the fourth car from the caboose while the train was in motion in order to release the brakes, which he himself had "put on," as the set brakes were causing the wheels to slide and smoke, rendering the wheels liable to burst; that when he tried to mount the car he took hold of a standard which was on the car for the purpose of preventing

the pipes, with which the car was loaded, from rolling off; that the standard was so large that he could not grasp it, but was required to throw his hands and wrist around it; that as he did so, and placed his foot upon the journal box, and threw his weight on the standard, it turned with him, threw him down, and threw his foot off the journal box and under the wheel of the car, which passed over his ankle, foot, and leg, and caused him to sustain serious and painful injuries; that the socket in which the standard worked was square, and the standard was round and not properly fitted to it; and that the rules of the road in force when the plaintiff was injured declared that employees must not attempt to get on or off of trains when in motion, and that, if they did so, it would be at their own peril and risk.

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The plaintiff claimed that the following, making part of section 2590 of the code of Alabama of 1886, was applicable in his case: "When a personal injury is received by a servant or employee in the service or business of the master or employer, the master or employer is liable to answer in damages to such servant or employee, as if he were a stranger, and not engaged in such service or employment, in the cases following: (1) When the injury is caused by reason of any defect in the condition of the ways, works, machinery, or plant connected with, or used in, the business of the master or employer. * (5) When such injury is caused by reason of the negligence of any person in the service or employment of the master or employer, who has the charge or control of any signal, points, locomotive, engine, switch, car, or train upon a railway, or of any part of the track of a railway." The case was heard in the city court of Atlanta, Ga., and the court directed the jury to render a verdict for the defendant company. The plaintiff then carried the case before the supreme court of the State upon a writ of error, which court rendered its decision July 12, 1900, and affirmed the action of the lower court.

The opinion of the supreme court was delivered by Judge Cobb, and the syllabus of the same, prepared by the court, reads as follows:

1. An employee of a railroad company, who was injured in undertaking to mount a rapidly moving flat car by placing his foot upon the lid of the journal box, and seizing a standard which had been inserted in an opening in the side of a car in order to prevent the freight thereon from falling off, was not, either under the general rules of law or any Alabama statute, entitled to a recovery on the ground that the standard sipped in the socket and caused him to fall, when there was no testimony tending to show that the standard was placed on the car as a means of mounting the same, but, on the contrary, positive testimony that it was not placed there or intended to be used for that purpose.

2. When an employee has his choice of two ways in which to perform a duty, the one safe, though inconvenient, and the other dangerous, he is bound to select the safe method; and if, instead of so doing, he elects to pursue the dangerous way, and is, in consequence, injured, he is guilty of such negligence as will bar an action for damages against

the master. The principle here announced is recognized law in the State of Alabama.

3. If there was, in the present case, any evidence tending to show that the plaintiff acted in an emergency, it was one of his own making, and the defendant company could not be held responsible on the theory that it had by its negligence placed him in such a position as to relieve him of the duty of exercising ordinary care for his own safety.

4. The evidence demanded a verdict for the defendant, and there was no error in directing the jury to find accordingly.

SEAMEN-SUIT FOR WAGES CREDIT FOR PROHIBITED PAYMENTSThe Alexander M. Lawrence, 101 Federal Reporter, page 135.-This was a suit in admiralty brought by a seaman to recover wages in the United States district court for the southern district of Alabama. The court rendered its decision March 3, 1900, and gave a decree in the seaman's favor. There is no statement of the facts in the case other than the references thereto made in the opinion of the court delivered by District Judge Toulmin, and which reads as follows:

The statutes of the United States forbid the payment of a seaman's wages in advance, and provide that in no case, except as therein provided, shall such payment absolve the vessel, or the master or owner thereof, from full payment of wages after the same shall have been actually earned, and shall be no defense to a libel for the recovery of such wages. (30 Stat., 763.) The statutes also provide that all seamen discharged from merchant vessels, etc., shall be discharged and receive their wages in the presence of a duly-authorized shipping commissioner, except when some court otherwise directs; and any master or owner of any such vessel, who discharges any such seamen belonging thereto, or pays their wages within the United States in any other manner, shall be liable to a penalty of not more than $50 (Rev. St., sec. 4549); and further provides that, in all cases in which discharge and settlement before a shipping commissioner are required, no payment, receipt, settlement, or discharge, otherwise made, shall operate as evidence of the release or satisfaction of any claim (id., sec. 4552).

It is an elementary principle of law that one who has himself participated in a violation of the law can not be permitted to assert in a court of justice any right founded upon or growing out of the illegal transaction. The authorities, both State and Federal, hold that no rights can spring from or be rested upon an act in the performance of which a criminal penalty is incurred. The penalty implies a prohibition, and the act relating to it is void-as absolutely void as if the law had declared that it should be so.

Hence I am bound to hold that the advance of $10 made by the master to the libelant on his wages not then earned can be no defense to this libel for the recovery of wages, the proof showing that wages were earned; and, in view of the fact that the payment of the $12.36 to the libelant at Mobile on the termination of the voyage was in violation of section 4549, Rev. St., and of the law as declared in the authorities cited, however unjust it may appear, or however harsh such rulings might sometimes be, I am constrained to hold that the

claimant can not be permitted to assert his right to have such payment deducted from or charged against any wages actually earned by the libelant. The claimant can rest no right upon the act of payment, it being done subject to a penalty. Furthermore, the statute expressly says that no such payment shall operate as evidence of the release or satisfaction of the libelant's claim. If the payment can not operate as evidence, is it admissible as evidence? My opinion is that the libelant is entitled to no wages from the time he was imprisoned down to the time he reshipped on the voyage to Mobile, as I find he was himself the cause of the imprisonment. A decree will be entered for the libelant for $22.36, with a division of the costs.

SEAMEN-VALIDITY OF SHIPPING ARTICLES-RIGHT TO LEAVE VESSEL-The Occidental, 101 Federal Reporter, page 997.-This suit was heard in the United States district court for the district of Washington, northern division, by seamen to collect wages. The decision in the case was rendered May 12, 1900, and the facts and the legal points settled therein are shown in the opinion of the court, delivered by District Judge Hanford, which reads as follows:

This is a suit to collect seamen's wages which the libelants claim to have earned by services on the ship Occidental, on a run from San Francisco to Seattle. The owner of the ship appears as claimant, and has filed an answer in which he resists the demand of the libelants on the ground that they became bound, by signing articles for a definite period of time, to continue in the service of the vessel to the end of the specified period, and until the return of the vessel to San Francisco, the port of discharge, and that, being so bound to service, they were guilty of continued willful disobedience of lawful commands of the captain, and by such disobedience they have forfeited the entire amount of their wages. I find from the evidence that during the run from San Francisco to Seattle the libelants faithfully performed their duties as seamen in doing the work required of them, which was necessary to be done in navigating the vessel, but on two occasions they refused to do seamen's work which was not strictly necessary in maneuvering the vessel or for her preservation, and while at sea they made known their intentions to leave the vessel on arrival at Seattle. After coming to anchor in the harbor, they did repeatedly refuse to work in discharging ballast, and in justification of their refusal to do work other than what was necessary in the navigation of the vessel they charge that the shipping articles for the voyage are unlawful and void, and that the captain imposed upon them by leaving San Francisco without having on board a full complement of men.

I find from the evidence that the captain made a bona fide attempt to employ 10 seamen for the voyage, and that 10 men signed the shipping articles in the presence of the deputy United States shipping commissioner, but 3 of those who signed failed to report for duty. When the ship was ready to cast off her moorings, the captain was informed by the mate that there was a full crew on board, and then, without taking the trouble to muster the crew on deck, the vessel proceeded on her way, although there were then on board only 7 of the