EIGHT-HOUR DAY-CONSTRUCTION OF LEVEES-EXTRAORDINARY EMERGENCY-FEDERAL STATUTE- United States v. Garbish, Supreme Court of the United States (December 11, 1911), 32 Supreme Court Reporter, page 77.-This was an action by the United States for a violation of the act of August 1, 1892, limiting to eight per day the hours of labor of laborers and mechanics on public works except in cases of extraordinary emergency. The defendant was engaged in the construction of a levee in the State of Louisiana to prevent the overflow of the Mississippi River. In the circuit court the indictment was demurred to and the demurrer sustained on the ground that the work engaged in "presents at all times an extraordinary emergency within the meaning of the statute." (180 Fed. 502. See Bulletin No. 92, p. 249.) This conclusion was based on an assumption of the uncertainty of the stage of the river, subject as it is to rise as result of heavy rainfalls, unexpected thawing or freezing, or other act of nature which no one can foresee or anticipate, and from which danger might be avoided by perhaps a few days' earlier completion of a given portion of work. The assumption of judicial knowledge by the court was too broad, in the view of the Government, both in respect of the natural conditions that might intervene and the inability to facilitate the work otherwise than by employing the laborers for more than eight hours per day. This contention the Supreme Court favored, overruling the judgment of the court below and remanding for further proceedings under the indictment. Mr. Justice McKenna, who delivered the opinion of the court, spoke in part as follows:

But, aside from these considerations, it has been decided that no mere requirement of business convenience or pecuniary advantage is an extraordinary emergency within the meaning of the act. (Ellis v. United States, 206 U. S. 246, 256, 257, 51 L. ed. 1047, 1052, 1053, 27 Sup. Ct. Rep. 600, 11 A. & E. Ann. Cas. 589.) And, besides, the extraordinary emergency which relieves from the act is not one that is contemplated and inheres necessarily in the work. (United States v. Sheridan-Kirk Contract Co. 149 Fed. 809.) It is a special occurrence, and the phrase used emphasizes this. It is not an emergency simply which is expressed by it, something merely sudden and unexpected, but an extraordinary one-one exceeding the common degree. We must assume that the phrase was used with a consciousness of its meaning and with the intention of conveying such meaning. As said by the Solicitor General, "the phrase 'continuing extraordinary emergency' is self-contradictory.'

The building and repair of levees on the Mississippi River is one of the most important and conspicuous of the public works of the United States, and if it had been intended to exempt it from the provisions of the act of August 1, 1892, which declared a public policy in regard to labor, it would have been expressed. There is no hardship in this to a contractor. He has before him the law and the conditions affecting the work which he may undertake, and can govern himself accordingly.

EMPLOYERS' LIABILITY-EMPLOYMENT OF CHILDREN-AGE LIMITEMPLOYMENT IN VIOLATION OF STATUTE- Woods v. Kalamazoo Paper Box Co., Supreme Court of Michigan (December 8, 1911), 133 Northwestern Reporter, page 482.-Jessie Woods was injured in the employment of the company named while operating a "stayer machine" in its factory. She was but 15 years old at the time, and her employment at such a machine was in violation of act No. 285, Acts of 1909. Judgment had been in her favor in the circuit court of Kalamazoo County, whereupon the company appealed and procured a reversal of the judgment on the ground that the child was guilty of contributory negligence, the court holding that the fact that the employment was in violation of the statute did not bar the defense. The concluding paragraph of the opinion of the court, which was delivered by Judge Ostrander, is in part as follows:

Giving to plaintiff's testimony the greatest probative force, it shows no connection between defendant's alleged negligence and her injury, unless her employment to operate the machine was a violation of the statute. If it was a violation of the statute, her own conduct may nevertheless be considered to determine whether she was herself at fault. Upon this question her testimony is conclusive. She tripped the machine-set it in motion-while her finger was in the machine, over the anvil. She was not ignorant of the danger or of the consequences of what she did. Unless the machine moved, she was in no danger. It could not move unless she set it in motion. She had no occasion to place her finger in a position where it could be injured, and none to start the machine when it was in such a position.

The judgment is reversed, and no new trial will be granted.

EMPLOYERS' LIABILITY-FELLOW SERVANTS-ACT OF SUPERINTENDENCE-RAILWAY SECTION MEN OPERATION OF TRAINSRichey v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Supreme Court of Indiana (November 28, 1911), 96 Northeastern Reporter, page 694.-This was an action by Walter Richey to recover damages from the company named on account of an injury sustained while employed by it as a section man. The injury complained of was received on March 27, 1905, and was caused by the action of the section foreman who, in the course of duty, had ordered Richey to get upon a hand car and proceed with him to another part of the section on which they were working. While traveling at the estimated speed of 12 miles per hour the car was suddenly brought to a stop by the careless and forcible application of the brake by the section foreman without notice of his intention so to do, whereby the plaintiff was thrown to the ground and seriously injured. In the court below the company had demurred to the complaint, which demurrer being sustained Richey appealed, the appeal resulting in

judgment of the court below being affirmed. Judge Myers, who delivered the opinion of the court, discussed at considerable length the relation of the plaintiff to his superior, the section foreman, and the responsibility of the company for the actions of the latter. The action was based on subdivisions 2 and 4 of the employers' liability act of the State (Burns, 1908, sec. 8017), which charges railroad companies with liability for the negligence of any person in their service to whose order an injured employee is bound to conform and does conform or who is "at the time acting in the place of and performing the duty of the corporation," as employer. On the question of the relations of Richey to his foreman and the liability of the company for the latter's acts, Judge Myers said:

In going upon the hand car, and in being carried upon it, appellant was acting in obedience to an order of one who had authority to direct him. It was not necessary that the injury should arise directly from obedience to that order, but it is sufficient if it arises during compliance with it. In Louisville, etc., Co. v. Wagner, 153 Ind. 420, 53 N. E. 927, it was held that it was not necessary that the "order, or direction in said subsection (2) be negligent; but it is sufficient if the employee was bound to conform, and was conforming at the time of the injury, to the order or direction of the person whose negligence caused the injury." In that case it was said: "The order to loose the truck was the proximate cause of the injury. And it was both. directing the plaintiff into a dangerous situation that he was bound to enter, and then ordering the truck turned loose upon him without warning, that constitute the actionable negligence.' In Thacker v. Chicago, etc., Co., supra, the section men were obeying a general order, when the foreman gave the negligent special order, which another obeyed, from which Thacker was injured. Here appellant was acting under an order to go upon the car, and while being carried upon it, in conformity to the order, and in its continuity of execution, he was injured by the direct negligence of the foreman. There was an intimate connection between appellant's conforming to the order in being upon the car, and the action of the foreman which caused the injury. In other words, the order to go upon the car was a proper and continuing one, and not negligent. The injury arose subsequently in conforming to that order, and under the English cases, in construing the British act upon which our own is modeled, a liability arises.

The court is of the opinion that this complaint, if otherwise sufficient, is good under the rule announced as to the fourth paragraph of complaint in the Thacker case, and the rule in the Shumack case, and the doctrine of Island Coal Co. v. Swaggerty, supra, and Louisville, etc., Co. v. Wagner, supra, upon the theory that the act of the section foreman in doing a negligent thing himself, from which the injury arose, was as potent as his giving an order to do it; that it necessarily involved the same mental process to determine to do what he did, as if he had given an order to another to do it as he did it; that the master's duty to exercise reasonable care to make and keep the appliance reasonably safe was a duty imposed upon the section foreman; and that this duty was extended to the operation

of the hand car, so far as he himself was concerned in operating it, as applied to the question of keeping it safe, for it would be the refinement of reasoning to say that he by giving the order to another would create a liability, but if he did the thing himself it would not.

The status of the conduct of the section foreman was thus fixed, if determined by the provisions of the railway employers' liability act; but since the Supreme Court of Indiana had construed this act as applying only to workmen exposed to the hazards resulting from the operation of railroad trains, the question remained for decision whether or not this accident came within the scope of the law. Numerous cases were cited under the laws of a number of other States as well as a review of the principal decisions under the Indiana statute. Considerable attention was given to the decision by the Supreme Court of the United States in the case of Louisville & Nashville Railroad Co. v. Melton, 30 Sup. Ct. 676 (Bulletin No. 90, p. 848), in which the Supreme Court had declined to give the Indiana statute the narrow construction laid down by the supreme court of that State, and had given judgment in favor of a bridge carpenter who was injured otherwise than by the operation of a trair. On this point Judge Myers said in part:

If, as seems to be the case, the Supreme Court in the Melton case regards the construction by this court as too restricted, with respect to the character of employees, as restricted to those in the train service, we agree with it; but we do not so understand the rule, but understand and hold that it should be drawn at those who incur the bazard of and injury by and from the operation of trains, but we can not go further without offending the prohibition of our own constitution against special and class legislation. To adopt the broad construction apparently given in L. & N. Co. v. Melton, 127 Ky. 276, 105 S. W. 366, 110 S. W. 233, 112 S. W. 618, and followed on appeal to the Supreme Court of the United States, could but lead to the entire overthrow of the act; but it seems to us that there is a line of possible harmony in the cases, on principle, though it could not harmonize our views with the rule adopted by the Supreme Court of Appeals of Kentucky in the Melton case, as applying to a bridge carpenter, whose injury was in nowise caused by or connected with the hazard of operating trains, or different from that in any other business of a like character. The distinction, it seems to us, lies not from the general inclusion of employees in a class, owing to the impracticability, if not the impossibility of enacting a statute which would in and of itself apply to every condition or character of modern employments it may be sought to apply it to, but in the application of the statute in a particular case, irrespective of the general classification, to those whose employment for the time being exposes them to the hazards of, and injury from, the operation of trains.

With one judge dissenting, the court therefore held that the operation of a hand car was not within the provisions of the act, inasmuch as the injury was not the result of an exposure to the hazards of the operations of trains.

OF

EMPLOYERS' LIABILITY-MINE REGULATIONS-NEGLIGENCE FOREMAN-Davis v. Mabscot Coal & Coke Company, Supreme Court of Appeals of West Virginia (November 14, 1911), 72 Southeastern Reporter, page 1030.-One Bowman employed by the company named above was killed while at work laying a track, by the falling upon him of slate from the roof of an air way, and Davis sued the company as administrator to recover damages, alleging that the injury was caused by the negligence of the employing company. Judgment was in favor of the company in the circuit court of Raleigh County, whereupon Davis appealed, the appeal resulting in the judgment being affirmed. The grounds for this position are set forth in the following portion of the opinion of the court, which was delivered by Judge Brannon:

The mine operator employed a competent mine boss as required by our statute, and as the duty of watching overhead slate rests on this boss, the mine owner is not responsible for the negligence of this boss. A number of decisions have established this rule. (Williams v. Thacker Coal Co., 44 W. Va. 599, 30 S. E. 107, [Bulletin No. 19, p. 879]; McMillan v. Coal Co., 61 W. Va. 531, 57 S. E. 129, [Bulletin No. 72, p. 608]; Bralley v. Tidewater Co., 66 W. Va. 278, 66 S. E. 684; Squilache v. Coal & Coke Co., 64 W. Va. 337, 62 S. E. 446.) It is frankly admitted by counsel that unless this case can be differentiated from those cases the planitiff can not recover, and to do so the plaintiff alleges that the proof shows that the defendant's superintendent had notice of the unsafety of the roof of the air course a month before the accident, and did not remedy it. We do not say whether, if a mine owner has notice of a defect, he must take steps to render it safe, or may remain inactive, leaving the matter to the mine boss.

We do not think the facts take this case out of the principles established in the cases cited, and we affirm the judgment.

EMPLOYERS' LIABILITY-MINE REGULATIONS-REFUGE HOLESNEGLIGENCE-Helliel v. Piney Coal & Coke Company, Supreme Court of Appeals of West Virginia (November 28, 1911), 73 Southeastern Reporter, page 289.-George Helliel was a coal miner employed by the company named, and while passing through the main entry of their mine was caught by some coal cars which had broken loose from the motor to which they were attached and injured by reason of the fact that the space between the cars and the rib or wall of the mine was too narrow. This condition resulted from a failure to observe the provisions of chapter 78, Acts of 1907, which requires either an ample width of passageways or that refuge holes be constructed at suitable intervals. Helliel had secured judgment for damages in the circuit court of Raleigh County, whereupon the company appealed, the appeal resulting in the judgment of the court below being reversed,