run their trains, and the way in which they may cross or run upon highways and turnpikes used for public travel. It may make all such regulations as are appropriate to protect the lives of persons carried upon railroads, or passing upon highways crossed by railroads." It could also be added that the legislature has the authority to compel the adoption of devices and appliances for the protection of those in the service of railways, can declare that the doctrine of fellow-servants shall not apply in cases arising between railways and their employees, and can perforce alter, change, or abolish the law of assumed risks. In discussing the constitutionality of laws, the mistake is too often made of endeavoring to apply the same rules in the government of natural persons not engaged in public occupations to the control of creatures of law, whose very existence rests in the hands of the legislative branch of the government, and which can and must be regulated in a manner that individuals in pursuit of private occupations, with a due regard to the principles of free government and the rights of personal liberty, can not be regulated. Barring an interference with vested rights, rights of property, and the obligations of existing contracts, the legislature may impose upon private corporations, engaged in serving the public, any additional restriction and burden that the public good may require or render proper and expedient.

The statute of 1905 interferes with no vested right, and does not in any manner impair the obligation of contracts, but it is a measure passed, undoubtedly, to better protect the lives and limbs of those who are in the employment of railroads or street railways. It is an exercise of the police power of the State over the creatures that it has by its legislative fiat brought into existence. "This police power of the State extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State." (Cooley's Const. Lim. (7th Ed.) p. 831.) The exercise of this police power is the exercise of a power belonging to State sovereignty, reserved and protected by the Constitution of the United States. The clause of that Constitution which forbids the passage of laws impairing the obligation of contracts is frequently invoked by private corporations to prevent the legislatures of the States from regulating and controlling them, but it is uniformly held by Federal and State courts, that they are subject to such regulations from time to time as may be deemed necessary to guard the rights of individuals and other corporations, shield the public health, and protect the safety of life and limb. There is no limit to this police power except that it must be exercised for the comfort, safety, or welfare of society; that it must not destroy any charter privilege, nor interfere with any vested right. The State of Texas has not transgressed these bounds in restricting the defense of assumed risk. The judgment is affirmed.

EMPLOYERS' LIABILITY-CONSTRUCTION OF STATUTE-ACTS OF SUPERINTENDENTS-FORM OF COMPLAINT-Harris v. Baltimore Machine and Elevator Works, Court of Appeals of New York, 80 Northeastern Reporter, page 1028.-Norman Harris had recovered a judgment for damages for injuries received while in the employment of

the company named, from which judgment an appeal was taken. The appeal to the appellate division of the supreme court resulted in the affirmation of the judgment, as did the further appeal to the court of appeals. The facts are given in the opinion as delivered by Judge Gray, reproduced below:

The question of interest to the profession in this case is as to the sufficiency of a complaint under the employers' liability act (Laws 1902, p. 1748, c. 600). This action was brought to recover damages for the injuries sustained by the plaintiff by reason of the negligence of his employer. The complaint alleged, in substance, that the plaintiff was directed by the defendant, a foreign corporation, in whose employ he was, to enter an elevator, "which the defendant had constructed and then had under its supervision and control;" that the elevator was negligently constructed by the defendant, “in that the steel rope, or cable, by which the elevator car was suspended * * * was loosely * * * and improperly fastened to the top of the car and that the safety appliances *. had not been attached thereto;" that by reason of the defendant's negligence "in directing the plaintiff to enter the car, while it was in said condition," and without fault on plaintiff's part, the "cable became unfastened from the elevator" and the car fell; and that, by reason of the premises, the plaintiff sustained certain injuries. The final paragraph of the complaint alleged that "within 120 days after the occurrence of the said accident, * * * and on the 18th day of March, 1903, due notice in writing of the time, place, and cause of the injury was given to the defendant in the manner provided by and pursuant to chapter 600 of the Laws of 1902."

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Upon the trial proof was given upon which the jury returned verdict against the defendant and the unanimous affirmance by the appellate division of the plaintiff's judgment is conclusive upon us that the facts sufficiently supported the verdict. At the opening of the trial, at the close of plaintiff's case, and at the close of the evidence, the defendant moved that the plaintiff be compelled to elect whether he proceeded at common law, or under the employers' liability act. The motions were, at first, denied; but, when the evidence was all in, the plaintiff was directed to, and did, elect to proceed under the act, after a suggestion by the trial court that there was no common-law cause of action. The appellant argues that the complaint failed to state facts sufficient to constitute a cause of action under the employers' liability act, that, therefore, his motion to dismiss it for that reason should have been granted, and that the denial was error.

We think that the complaint was sufficient, in the respect argued by the appellant. The employers' liability act extended the liability of the employer of labor at common law, and, in order to sufficiently plead a cause of action thereunder, required, as a condition precedent to a recovery, that notice be given of the accident to the master. It gave an additional cause of action, because it prescribed that a master shall be liable for the negligence of the superintendent or the person acting as such. (Gmaehle v. Rosenberg, 178 N. Y. 147, 70 N. E. 411.) At common law such a liability was not recognized, unless the superintending servant was the alter ego of the master with respect to the work.

This complaint not only set forth facts showing a defect in the condition of the machinery connected with the employers' business, due to his negligence, but necessarily as the employer was a corporation, predicated the charge of the negligence from which he suffered, namely, a direction to enter an unsafe elevator, upon the act of one of its servants. Further, the allegation in the complaint as to notice. specifically drew the attention of the defendant to the fact that the plaintiff was resting his cause of action, and was depending, upon the provisions of the employers' liability act.

The proofs established that the negligence, which occasioned the happening of the accident was that of the defendant's superintendent. The failure to insure the safety of the attachment of the cable to the elevator, by fastening the ends properly, was due to his neglect, and, when the plaintiff came to work at the place, it was the superintendent who directed him to go upon it for the purpose. It is not necessary, in order to plead a cause of action under the employers' liability act, that its precise language should be made use of, provided that it appear plainly from what is alleged that the cause of action was within the provisions of the act, and that its requirement of the giving of a notice to the defendant has been complied with. That is this case.

The ruling upon the degree of care due from the defendant, with respect to providing a reasonably safe elevator, is to be considered in the light of the facts, which showed it to be one in the course of construction and installation. It was in use for the purpose of the work, which plaintiff was directed to perform, on the day in question and the main charge fairly described the situation. The jury could not have been misled upon the subject of the measure of defendant's duty to the plaintiff, nor have supposed that it was greater than an obligation to provide a safe place for the plaintiff to work upon.

The judgment should be affirmed, with costs.

EMPLOYERS' LIABILITY-EMPLOYMENT OF CHILDREN-VIOLATION OF STATUTE-NEGLIGENCE-Leathers v. Blackwell's Durham Tobacco Company, Supreme Court of North Carolina, 57 Southeastern Reporter, page 11.—This was an action to recover damages for injuries to a child employed in violation of the statute prohibiting the employment in factories of children under 12 years of age. Judgment was rendered in the child's favor in the superior court of Durham County, from which an appeal was taken. The appeal was based in part on a contention as to whether the employment of children in violation of the statute was negligence per se, the appellant maintaining that it was no more than evidence of negligence. The supreme court approved the finding of the lower court, and also construed the violation of the law to be negligence per se. The following extract from the opinion of the court, as delivered by Judge Connor, indicates the grounds on which this conclusion was reached:

It is not denied that the plaintiff was injured in a "factory or manufacturing establishment" within the meaning of the statute. We thus

have presented for decision the question whether the employment of a child in a factory within the prohibited age is negligence per se, entitling it to recover for an injury sustained-such employment being the proximate cause thereof or whether such employment is only evidence of negligence to be submitted to the jury. His honor evidently construed the language used by us in Rolin v. Tobacco Co., 141 N. C. 300, 53 S. E. 891 [see Bulletin No. 67, p. 863], as answering the first branch of the question affirmatively. In that case, being the first which came to this court after the passage of the statute, the court below nonsuited the plaintiff, and we held that in any aspect of the testimony the case should have gone to the jury.

The question which gave us more difficulty in the case was whether, upon the plaintiff's testimony, he was engaged in performing the work for which he was employed, and therefore whether there was any evidence that such employment was, in any aspect of the testimony, the proximate cause of his injury. This court has held in a series of cases affirming the instructions given by the superior court judges that a failure to obey town ordinances regulating the rate of speed was at least evidence of negligence. (Edwards v. Railroad, 129 N. C. 78, 39 S. E. 730.) The language of Justice Douglas indicates that in some cases such violation of a town ordinance would be negligence per se. The judge in Edwards' Case instructed the jury that, if the injury to the plaintiff's intestate was caused by the violation of the ordinance, they should give to the first issue an affirmative answer. This, the court said, was correct. In other cases we have approved the instruction that violation of speed ordinances was evidence of negligence. In Rolin's Case, supra, we followed this rule, saying that the employment of a child within the prohibited age was strong evidence of negligence. In neither of those cases was it necessary to decide the question presented by his honor's instructions. The defendant insists that the instruction by treating this employment, assuming the plaintiff to be under 12 years of age, as negligence per se, does violence to the decision in Rolin's Case. We have given to the question most careful consideration, and reexamined both the basis of the rule and the authorities in which it is discussed. Mr. Bishop says: "Whenever the common law, a statute or municipal by-law, or any other law imposes on one a duty, if of a sort affecting the public within the principles of the criminal law, a breach of it is indictable, and a civil action will lie in favor of any person who has suffered specially therefrom. The civil action is maintainable when, and only when, the person complaining is of a class entitled to take advantage of the law, is a sufferer from the disobedience, is not himself a partaker in the wrong of which he complains, or is not otherwise precluded by the principles of the common law from his proper standing in court." (Noncontract Law, secs. 132-141.) Lord Holt ruled that, when a statute enacts or prohibits a thing for the benefit of a person, "he shall have a remedy upon the same statute for the thing enacted to his advantage or for the recompense of a wrong done to him contrary to the said law." (Mod. Cases, 26, 27.) Judge Thompson, in his work on Negligence (vol. 1, sec. 10), says: "When the legislature of a State or the council of a municipal corporation, having in view the promotion of the safety of the public or of individual members of the public, commands or forbids the doing of a particular act, the general conception of the courts, and the only one that is reconcilable with reason, is that a failure to

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do the act commanded, or doing the act prohibited, is negligence as mere matter of law, otherwise called negligence per se, and this, irrespective of all questions of the exercise of prudence, diligence, care, or skill, so that if it is the proximate cause of hurt or damage to another, and if that other is without contributory fault, the case is decided in his favor, and all that remains is to assess the damages." The author expresses regret that "two or three authoritative courts" have held that the violation of a statute is only "evidence of negligence." He proceeds to criticise the doctrine in vigorous terms (sec. 11): "If a specific duty is imposed upon any person by law or by a legal authority, an action may be sustained against him by any person who is specially injured by his failure to perform that duty.' (Shearman & Red. Neg. 54.) The authors say that the action is in tort for negligence. "The violation of an imposed statutory duty is a sort of negligence per se. Thus, where a railroad operates its trains at a higher rate of speed than the law allows, the question of whether it is guilty of negligence is not debatable. This preliminary matter the law conclusively determines against the company, and the sole question to be settled in cases of this kind is whether that delinquency can be considered a proximate cause of the damage of which complaint is made." (1 Street, Foundation Legal Liability, 172.) A number of illustrative cases are cited. The several views are stated in 21 Am. & Eng. Enc. 478, and the cases illustrating them cited.

We have carefully examined a number of cases, and find that a large number of the courts have adopted the opinion of the text writers. It is so held in Perry v. Tozer, 97 N. W. 137, 90 Minn. 431 [Bulletin 51, p. 448]; Am. Car Co. v. Armentraut, 214 Ill. 509, 73 S. E. 766 [Bulletin No. 59, p. 335]; Billings v. Breinig, 45 Mich. 65, 7 N. W. 722. In Railroad v. Stebbing, 62 Md. 505, Alvey, C. J., speaking of a speed ordinance, says: "This ordinance is general, and is for the protection of the public generally; but the neglect or disregard of the general duty imposed for the protection of everyone can never become the foundation of a mere personal right of action, until the individual complaining is shown to have been placed in position that gave him particular occasion and right to insist upon the performance of the duty to him personally. The duty being due to the public, composed of individual persons, each person specially injured by the breach of duty thus imposed becomes entitled to compensation for such injury." In Railroad Co. v. Voelker, 129 Ill. 540, 555, 22 N. E. 20, 24, it is said: "A statute commanding an act to be done creates an absolute duty to perform such act, and the duty of performance does not depend upon and is not controlled by surrounding circumstances. Nonperformance of such statutory duty, resulting in injury to another, may therefore be pronounced to be negligence as a conclusion of law." [Cases cited.] In Salisbury v. Horchenroder, 106 Mass. 458, 8 Am. Rep. 354, the evidence showed that defendant hung a sign over the sidewalk in front of his store, in violation of an ordinance of the town. It was blown down by a gale of wind, injuring plaintiff's property. Chapman, C. J., said: "If the defendant's sign had been rightfully placed where it was, the question would have been presented whether he had used reasonable care in securing it. If he had done so, the injury would have been caused, without his fault, the extraordinary and unusual gale of wind, etc. But the defendant's sign was suspended over the street in violation of a public

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