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that it was within the power of the legislature to fix an age limit below which children should not be employed in dangerous kinds of work, and that an employer who violated the law by engaging a child under the statutory age did so at his own risk, and in an action of trespass for personal injuries sustained in such employment the master can not set up as a defense either the assumption of risk or the contributory negligence of the child servant. This seems to be the rule adopted by the courts of other jurisdictions as well as our own. (Sipes v. Michigan Starch Company, 137 Mich. 258, 100 N. W. 447.) The suggestion made by the learned counsel for appellee that a violation of section 2, which prohibits the employment of children under 14 years of age, can only be punished as a misdemeanor as provided in section 23, can not be accepted as a sound rule of law. It is true the statute is penal, and violations of its provisions, upon conviction, are punishable by fine or imprisonment, but these remedies are not exclusive, and do not supersede the right of action for damages in a civil proceeding. (Narramore v. Railway Company, 96 Fed. 298, 37 C. Č. A. 499 [Bulletin No. 26, p. 202].) Whether the employment of a child in a hazardous occupation, when such employment is prohibited by law, is negligence per se, or only evidence of negligence to be considered in connection with other facts tending to show negligence, the authorities are not entirely agreed, but, for the purpose of the present case, we hold that the employment of the boy under 14 years of age to do any kind of work in the establishment prohibited by section 2, and of his having been employed to clean or oil machinery while in motion, prohibited by section 4, were both questions of fact to be submitted to the jury as evidence of negligence, and, if the injury resulted by reason of the employment prohibited by law, there can and should be a recovery in the case. In the view thus taken of the act of 1905, it is not important to consider the assignments of error relating to the duty of an employer to properly instruct a young and inexperienced employee in the use of dangerous machinery. As to the prohibited employment the master is not relieved by giving instructions.

We do not consider it necessary to consider in detail the numerous assignments of error, because they nearly all relate wholly or in part to the force and effect to be given the act of 1905, and, with this fundamental and controlling question now settled, no difficulty will be experienced in the proper application of the rules of law applicable thereto when the case is again tried.

Judgment reversed, and a venire facias de novo awarded.

EMPLOYERS' LIABILITY-RAILROAD COMPANIES-SAFETY APPLIANCE LAW-DELEGATION OF LEGISLATIVE POWER-CONSTRUCTION OF STATUTE-DUTY AS TO MAINTENANCE OF PRESCRIBED CONDITION-St. Louis, Iron Mountain and Southern Railway Company v. Taylor, Supreme Court of the United States, 28 Supreme Court Reporter, page 616.— George W. Taylor, a brakeman in the employ of the company named, was killed while attempting to couple cars, and his administratrix sued to recover damages for his death. The right to recover was based solely

on the failure of the railroad company to equip the cars in question with drawbars conforming to the safety appliance law of March 2, 1893. Judgment was for the plaintiff in the circuit court of Crawford County, Ark., and, on appeal, in the supreme court of the State. This judgment was reversed in the Supreme Court of the United States because of faulty instructions given by the court below as to the construction of the regulations fixing the height of drawbars, while as to other points the contentions of the railroad company were denied.

The opinion of the court was delivered by Justice Moody, who, after disposing of the question of jurisdiction, took up the provision of the law that authorized the American Railway Association to designate to the Interstate Commerce Commission the standard height of drawbars for freight trains and the maximum variation allowable between the drawbars of empty and loaded cars. The height was fixed by the Association and promulgated by the Commission at 341 inches from the top of the rails to the center of the drawbars for cars on standard gauge railroads, with a maximum variation of 3 inches between the drawbars of empty and loaded cars. The company attacked this provision of the law as being an unconstitutional delegation of legislative power, as to which contention Justice Moody said:

Nothing need be said upon this question except that it was settled adversely to the contention of the plaintiff in error in Buttfield v. Stranahan (192 U. S. 470, 48 L. Ed. 525, 24 Sup. Ct. Rep. 349)— a case which, in principle, is completely in point. (a)

The next point considered turned on the instructions as to the prescribed height of the drawbars. The court below gave the proper statement that the height for an empty car should be 34 inches, but added that for loaded cars there should be a uniform height of 311 inches, and that if such was shown not to be the case, the defendant was negligent. One of the cars to be coupled was fully, and the other lightly, loaded. One had an automatic coupler and the other a link and pin coupler, the law at the time not requiring all cars to be provided with the automatic coupler. The question turned on the height of the drawbars, as to which the testimony was conflicting. Speaking of the force of the regulation and its construction by the court below, Mr. Justice Moody said:

We think that it requires that the center of the drawbars of freight cars used on standard-gauge railroads shall be, when the cars are empty, 34 inches above the level of the tops of the rails; that it permits, when a car is partly or fully loaded, a variation in the height

« The case cited was one in which a law authorizing the Treasurer of the United States to appoint a board of tea experts who should classify teas imported into the United States, and to adopt such classification in the collection of duties, etc., was held valid.

downward, in no case to exceed 3 inches; that it does not require that the variation shall be in proportion to the load, nor that a fullyloaded car shall exhaust the full 3 inches of the maximum permissible variation and bring its drawbars down to the height of 31 inches above the rails. If a car, when unloaded, has its drawbars 344 inches above the rails, and, in any stage of loading, does not lower its drawbars more than 3 inches, it complies with the requirements of the law. If, when unloaded, its drawbars are of greater or less height than the standard prescribed by the law, or if, when wholly or partially loaded, its drawbars are lowered more than the maximum variation permitted, the car does not comply with the requirements of the law.

The clear intendment of these instructions was that the law required that the drawbars of a fully-loaded car should be of the height of 311⁄2 inches, and that if either of the cars varied from this requirement the defendant had failed in the performance of its duty. We find nothing in the remainder of the charge which qualifies this instruction, and we think it was erroneous. We should be reluctant to insist upon mere academic accuracy of instructions to a jury. But how vitally this error affected the defendant is demonstrated by the fact that its own evidence showed that the drawbar of the fully-loaded car was 32 inches in height. Under these instructions the plaintiff was permitted to recover on proof of this fact alone. From such proof a verdict for the plaintiff would logically follow. The error of the charge was emphasized by the refusal to instruct the jury, as requested by the defendant, "that when one car is fully loaded and another car in the same train is only partially loaded, the law allows a variation of full 3 inches between the center of the drawbars of such cars, without regard to the amount of weight in the partiallyloaded car." This request, taken in connection with the instruction that the drawbars of unloaded cars should be of the height prescribed by the act, expressed the true rule, and should have been given.

The last question considered related to the duty devolved upon the company by the rule requiring the limits of the variation named to be observed, which was disposed of by holding the duty to be an absolute one, requiring actual performance, and that the employer was not relieved by proof of reasonable care. On this point the

court said:

The evidence showed that drawbars which, as originally constructed, are of standard height, are lowered by the natural effect of proper use; that, in addition to the correction of this tendency by general repair, devices called "shims," which are metallic wedges of different thickness, are employed to raise the lowered drawbar to the legal standard; and that, in the caboose of this train, the railroad furnished a sufficient supply of these shims, which it was the duty of the conductor or brakeman to use as occasion demanded. On this state of the evidence the defendant was refused instructions, in substance, that, if the defendant furnished cars which were constructed with drawbars of a standard height, and furnished shims to competent inspectors and trainmen, and used reasonable care to keep the drawbars at a reasonable height, it had complied with its statutory duty, and, if the lowering of the drawbar resulted from the failure to use the shims, that was the negligence of a fellow-servant, for which

the defendant was not responsible. In deciding the questions thus raised, upon which the courts have differed (St. Louis & S. F. R. Co. v. Delk, 158 Fed. 931), we need not enter into the wilderness of cases upon the common-law duty of the employer to use reasonable care to furnish his employee reasonably safe tools, machinery, and appliances, or consider when and how far that duty may be performed by delegating it to suitable persons for whose default the employer is not responsible. In the case before us the liability of the defendant does not grow out of the common law duty of master to servant. The Congress, not satisfied with the common law duty and its resulting liability, has prescribed and defined the duty by statute. We have nothing to do but to ascertain and declare the meaning of a few simple words in which the duty is described. It is enacted that "no cars, either loaded or unloaded, shall be used in interstate traffic which do not comply with the standard." There is no escape from the meaning of these words. Explanation can not clarify them, and ought not to be employed to confuse them or lessen their significance. The obvious purpose of the legislature was to supplant the qualified duty of the common law with an absolute duty, deemed by it more just. If the railroad does, in point of fact, use cars which do not comply with the standard, it violates the plain prohibitions of the law, and there arises from that violation the liability to make compensation to one who is injured by it. It is urged that this is a harsh construction. To this we reply that, if it be the true construction, its harshness is no concern of the courts. They have no responsibility for the justice or wisdom of legislation, and no duty except to enforce the law as it is written, unless it is clearly beyond the constitutional power of the lawmaking body. It is said that the liability under the statute, as thus construed, imposes so great a hardship upon the railroads that it ought not to be supposed that Congress intended it. Certainly the statute ought not to be given an absurd or utterly unreasonable interpretation, leading to hardship and injustice, if any other interpretation is reasonably possible. But this argument is a dangerous one, and never should be heeded where the hardship would be occasional and exceptional. It would be better, it was once said by Lord Eldon, to look hardship in the face rather than break down the rules of law. But when applied to the case at bar the argument of hardship is plausible only when the attention is directed to the material interest of the employer to the exclusion of the interests of the employee and of the public. Where an injury happens through the absence of a safe drawbar there must be hardship. Such an injury must be an irreparable misfortune to some one. If it must be borne entirely by him who suffers it, that is a hardship to him. If its burden is transferred, as far as it is capable of transfer, to the employer, it is a hardship to him. It is quite conceivable that Congress, contemplating the inevitable hardship of such injuries, and hoping to diminish the economic loss to the community resulting from them, should deem it wise to impose their burdens upon those who could measurably control their causes, instead of upon those who are, in the main, helpless in that regard. Such a policy would be intelligible, and, to say the least, not so unreasonable as to require us to doubt that it was intended, and to seek some unnatural interpretation of common words. We see no error in this part of the case. But, for the reasons before given, the judgment must be reversed.

EMPLOYERS' LIABILITY - RAILROAD COMPANIES VALIDITY OF FEDERAL STATUTE IN THE DISTRICT OF COLUMBIA-DAMAGESHyde v. Southern Railway Company, Court of Appeals of the District of Columbia, 36 Washington Law Reporter, page 374.-This case was before the court of appeals for a decision as to the constitutionality of the Federal liability law of 1906 in its application to employees of common carriers in the District of Columbia. This law was declared unconstitutional by the Supreme Court of the United States, in so far as it related to commerce between the different States. (Howard v. Railroad Company, 28 Sup. Ct. 141; see Bulletin No. 74, p. 216.) In the case in hand, however, it was held by the court of appeals that as the Congress of the United States had plenary power to legislate for the District of Columbia and the Territories, any decision as to the validity or nonvalidity of the law as to other localities did not affect the question as it relates to the District, and the law was declared to be in effect in this jurisdiction.

The title of the act is "An Act relating to liability of common carriers in the District of Columbia and Territories and common carriers engaged in commerce between the States and between the States and foreign nations to their employees." Similar language is used in the opening clauses of section 1 of the law. (For the law in full see Bulletin No. 74, pp. 216, 217.)

After quoting the title and first section of the law, and announcing the ruling of the Supreme Court, Chief Justice Shepard, speaking for the court of appeals, said:

We think it is evident from the language of the title and the first clauses of section 1 of the act that, in its enactment, Congress contemplated the exercise of its plenary power in the District of Columbia and the Territories, and of only its limited power in the States. This general intention, as regards the latter, was thwarted by the use of language, appropriate to the exercise of its plenary power, but not to the exercise of its limited power, making the common carrier, who might also be engaged in interstate commerce, liable to "any of its employees," without discrimination in respect of the character of the business in the conduct of which the injury might occur. We do not think, however, that the purpose to make the new rule of law, defining the relations of master and servant, apply to "every common carrier engaged in trade or commerce in the District of Columbia or in any Territory of the United States," is made abortive by the next clause making it apply also to common carriers engaged in commerce among the several States. This second clause or provision can be eliminated without impairing the particular effect or changing the meaning of the first in any particular. The provisions of the section being deemed severable, the next question is, whether it is plain that Congress would have enacted the act with the unconstitutional provision eliminated? We see no reason to doubt that it would have done so. One of the special duties of Congress is to legislate generally for the benefit of the inhabitants of the District of Columbia and the Territories. That

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