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JANUARY 1, 1904.

[The Tenth Special Report of this Bureau contains all laws of the various States and Territories and of the United States relating to labor, in force January 1, 1904. Later enactments are reproduced in successive issues of the Bulletin, beginning with Bulletin No. 57, the issue of March, 1905. Acumulative index of these later enactments is to be found on page 403 et seq. of this issue.]



CHAPTER 37.-Employment offices- Penalty. SECTION 1. Section eleven of an act entitled “An Act to regulate the keeping of employment agencies in the District of Columbia where fees are charged for procuring employment or situations," approved June nineteenth, nineteen hundred and six, is hereby amended by inserting aiter the words "at least six months from the date of revocation of such license" the words “every violation of any provision of this act, except as provided in section ten, shall be punishable by a fine not to exceed twentyfive dollars, and in default thereof the person or persons so offending shall be committed for a period not to exceed thirty days, and this penalty shall also include such violations of section ten for which no penalty is prescribed in said section ten.”

Approved, January 12, 1907.




Act No. 1416.- Employees injured in line of duty-Insular government. SECTION 6. Unclassified employees of the insular government, including laborers, who are injured in elear line of duty may, in the discretion of the chief of the bureau and with the approval of the head of the department under which they are employed, continue to receive their regular compensation during the period of disability not exceeding ninety days: Provided, That the governor-general or proper head of department may, in his discretion, authorize payment of medical attendance, necessary transportation, and hospital fees for officers and employees injured in clear line of duty, but such payment shall not be made from the appropriation for the insular salary and expense fund when the bureau or office concerned has an available appropriation for contingent expenses or public works, as the case may be, from which such payment can be made, nor shall the provisions of this section be construed to cover sickness as distinguished from physical wounds.

Enacted, December 1, 1905.

Act No. 1439.-Scamon-Descrtion.

SECTION 1. On application of a consul or vice-consul of any foreign Government having a treaty with the United States stipulating for the restoration of seamen deserting, made in writing, stating that the person therein named has deserted from a vessel of any such Government while in any port of the Philippine Islands, and on proof, by the exhibition of the register of the vessel, ship's roll, or other official document, that the person named belonged at the time of desertion to the crew of such vessel, it shall be the duty of the supreme court, or of any court of first instance, or of any judge thereof, or of any judge of a municipal court lawfully established in the Philippine Islands, to issue warrants to cause such person to be arrested for examination. If, on examination, the facts stated are found to be true, the person arrested, not being a citizen of the United States, or of the Philippine Islands, shall be delivered up to the consul or viceconsul, to be sent back to the dominions of any such Government, or, on the request and at the expense of the consul or vice-consui, shall be detained until the consul or vice-consul finds an opportunity to send him back to the dominions of any such Goyernment. No person so arrested shall be detained more than two months after his arrest; but at the end of that time shall be set at liberty, and shall not be again molested for the same cause. If any such deserter shall be found to have committed any crime or offense, his surrender may be delayed until the tribunal before which the case shall be pending, or may be cognizable, shall have pronounced its sentence, and such sentence shall have been carried into effect. Enacted, January 16, 1906.

Act No. 1511.-Hours of labor on public roads. SECTION 1. Every male inhabitant of the Philippine Islands who is subject to the payment of a poll or cedula personal tax by virtue of the provisions of the internal revenue law as now existing or as hereafter amended shall labor on the public highways, bridges, wharves, or trails for five days of eight hours each, every calendar year, or pay the equivalent in cash of such days' labor commuted at the rate and in the manner hereinafter provided, subject, however, to the provisions of section eighteen of this act: Provided, That this act shall not apply to the city of Manila nor to bona fide residents thereof, nor to members of the Philippine Constabulary and municipal police, nor to residents of provinces organized under act number thirteen hundred and ninetysix: And provided further, That this act shall not apply to a township or settlement of any non-Christian tribe in any province until made applicable to such township or settlement by resolution of the provincial board approved by the secretary of the interior.

Sec. 18. This act shall not be effective in any province until it shall have been adopted for that province by a majority vote of those present at an assembly as hereinafter provided.

Enacted, July 13, 1906.


ACTS OF 1906.

Act No. 52.-Employment of children. SECTION 1. Section 712 of the Vermont Statutes as amended by section 1 of No. 155 of the Acts of 1904 is hereby, amended so as to read as follows, viz.:

Section 712. A child under sixteen years of age, who has not completed the elementary course of study of nine years prepared for the public schools by the superintendent of education, shall not unless excused in writing by the town superintendent of schools be employed in work connected with railroading, mining, manufacturing, or quarrying, or be employed in delivering messages by any corporation or company, except during vacation and before and after school, unless said child deposits wiih his employer in work herein specified a certificate from the town superintendent of schools to the effect that he is eligible to employment in accordance with the provisions of this chapter, and no child under sixteen years of age shall be employed after eight o'clock at night in any of the occupations or industries herein enumerated. In case said child has been in attendance upon a private or parochial school, the superintendent of schools is hereby empowered to examine said child for the purpose

of determining his eligibility to employment in accordance with this section.

SEC. 2. Section 715 of the Vermont Statutes is hereby amended so as to read as follows, viz.:

Section 715. A town superintendent may inquire of the owner or superintendent of a mill, factory, quarry, workshop, or railroad oflice, shop, or yards, as to the employ; ment of children therein, may call for the production of the certificates deposited with such owner or superintendent, and satisiy himself that the requirements of law have been complied with.

Sec. 3. Section 1 of No. 155 of the Acts of 1904 is hereby amended so as to read as follows, viz.:

Section 1. No child under the age of twelve years shall be employed by or permitted to work for any railroad company, or in any mill, factory, quarry, or workshop, or in delivering messages for a corporation or company.

Approved December 19, 1906.

The Supreme Court of the United States reviewed this decision on a writ of error and reversed it by a divided court, four of the nine judges holding that the court had no jurisdiction. The majority opinion was prepared by Judge Holmes, and is in part as follows:

The plaintiff, in her declaration, alleged that the defendant was transporting the shovel car from State to State, and that the coupler was not such as was required by existing laws. At the trial special attention was called to the United States statute as part of the plaintiff's case. The court having directed a nonsuit with leave to the plaintiff to move to take it off, a motion was made on the ground, among others, “that under the United States statute, specially pleaded in this case, the decedent was not deemed to have assumed the risk, owing to the fact that the car was not equipped with an automatic coupler." The question thus raised was dealt with by the court in overruling the motion. Exceptions were allowed and an appeal taken. Among the errors assigned was one "in holding that the shovel car was not a car used in interstate commerce or any other kind of traffic,"—the words of the court below. The supreme court affirmed the judgment in words that we shall quote. We are of opinion that the plaintiff's rights were saved and that we have jurisdiction of the case, subject to certain matters that we shall discuss.

On the merits there are two lesser questions to be disposed of before we come to the main one. A doubt is suggested whether the shovel car was in course of transportation between points in different States, and also an argument is made that it was not a car within the contemplation of section 2. On the former matter there seems to have been no dispute below. The trial court states the fact as shown by the evidence, and testimony that the car was coming from Limestone, New York, is set forth, which, although based on the report of others, was evidence, at least, unless objected to as hearsay. It was the testimony of the defendant's special agent employed to investigate the matter.

The latter question is pretty nearly answered by Johnson v. Southern P. Co., 196 U. S. 1, 16, 49 L. Ed. 363, 368, 25 Sup. Ct. Rep. 158, 161. [Bulletin No. 56, p. 303.] As there observed: “Tested by context, subject matter, and object, “any car' meant all kinds of cars running on the rails , including locomotives.

The object was to protect the lives and limbs of railroad employees by rendering it unnecessary for a man operating the couplers to go between the ends of the cars.' These considerations apply to shovel cars as well as to locomotives, and show that the words used in moving interstate traffic” should not be taken in a narrow sense. The later act of March 2, 1903, chap. 976, 32 Stat. at L. 943, U. S. Comp. Stat. Supp. 1905, p. 603, enacting that the provision shall be held to apply to all cars and similar vehicles, may be used as an argument on either side; but, in our opinion, indicates the intent of the original act. (196 U. S. 21, 49 L. Ed. 371, 25 Sup. Ct. Rep. 158.) There was an error on this point in the decision below.

A faint suggestion was made that the proviso in section 6 of the act, that nothing in it shall apply to trains composed of four-wheel cars, was not negatived by the plaintiff. The fair inference from the evidence is that this was an unusually large car of the ordinary pattern.




We come now to the main question. The opinion of the supreme court was as follows: “Whether the act of Congress has any applicability at all in actions for negligence in the courts of Pennsylvania is a question that does not arise in this case, and we therefore express no opinion upon it. The learned judge below sustained the nonsuit on the ground of the deceased's contributory negligence, and the judgment is affirmed on his opinion on that subject.” It is said that the existence of contributory negligence

' is not a Federal question, and that, as the decision went off on that ground, there is nothing open to revision here.

We certainly do not mean to qualify or limit the rule that, for this court to entertain jurisdiction of a writ of error to a State court, it must appear aflirmatively that the State court could not have reached its judgment without tacitly, if not expressly, deciding the Federal matter. But, on the other hand, if the question is duly raised and the judgment necessarily, or, by what appears, in fact involves such a decision, then this court will take jurisdiction, although the opinion below says nothing about it. And if it is evident that a ruling purporting to deal only with local law has for its premise or necessary concomitant a cognizable mistake, that may be sufficient to warrant a review. The application of this rather vague principle will appear as we proceed.

It is enacted by section 8 of the act that any employee injured by any car in use contrary to the provisions of this act shall not be deemed to have assumed the risk thereby occasioned, although continuing in the employment of the carrier after the unlawful use had been brought to his knowledge. An early, if not the earliest, application of the phrase "assumption of risk” was the establishment of the exception to the liability of a master for the negligence of his servant when the person injured was a fellow-servant of the negligent man. Whether an actual assumption by contract was supposed on grounds of economic theory, or the assumption was imputed because of a conception of justice and convenience, does not matter for the present purpose. Both reasons are suggested in the wellknown case of Farwell v. Boston & W. R. Corp., 4 Met. 49, 57, 58, 38 Am. Dec. 339. But at the present time, the motion is not confined to risks of such negligence. It is extended, as in this statute it plainly is extended, to dangerous conditions, as of machinery, premises, and the like, which the injured party understood and appreciated when he submitted his person to them. In this class of cases the risk is said to be assumed because a person who freely and voluntarily encounters it has only himself to thank if harm comes, on a general principle of our law. Probably the modification of this general principle by some judicial decisions and by statutes like section 8 is due to an opinion that men who work with their hands have not always the freedom and equality of position assumed by the doctrine of laissez faire to exist.

Assumption of risk in this broad sense obviously shades into negligence as commonly understood. Negligence consists in conduct which common experience or the special knowledge of the actor shows to be so likely to produce the result complained of, under the circumstances known to the actor, that he is held answerable for that result, although it was not certain, intended, or foreseen. He is held to assume the risk upon the same ground. (Choctaw,

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0. & G. R. Co. v. McDade, 191 U. S. 64, 68, 48 L. Ed. 96, 100, 24 Sup. Ct. Rep. 24.) Apart from the notion of contract, rather shadowy as applied to this broad form of the latter conception, the practical difference of the two ideas is in the degree of their proximity to the particular harm. The preliminary, conduct of getting into the dangerous employment or relation is said to be accompanied by assumption of the risk. The act more immediately leading to a specific accident is called negligent. But the difference between the two is one of degree rather than of kind; and when a statute exonerates a servant from the former, if at the same time it leaves the defense of contributory negligence still open to the master (a matter upon which we express no opinion), then, unless great care be taken, the servant's rights will be sacrificed by simply charging him with assumption of the risk under another name. Especially is this true in Pennsylvania, where some cases, at least, seem to have treated assumption of risk and negligence as convertible terms. (Patterson v. Pittsburg & C. R. Co., 76 Pa. 389, 18 Am. Rep. 412.) We can not help thinking that this happened in the present case, as well as that the ruling upon Schlemmer's negligence was so involved with and dependent upon erroneous views of the statute that if the judgment stood the statute would suffer a wound.

To recur for a moment to the facts: The only ground, if any, on which Schlemmer could be charged with negligence, is that when he was between the tracks he was twice warned by the yard conductor to keep his head down. It is true that he had a stick, which the rules of the company required to be used in coupling, but it could not have been used in this case, or at least the contrary could not be and was not assumed for the purpose of directing a nonsuit. It was necessary for him to get between the rails and under the shovel car as he did, and his orders contemplated that he should do so. But the opinion of the trial judge, to which, as has been seen, the supreme court refers, did not put the decision on the fact of warning alone. On the contrary, it began with a statement that an employee takes the risk even of unusual dangers if he has notice of them and voluntarily exposes himself to them.

Then it went on to say that the deceased attempted to make the coupling with a full knowledge of the danger, and to imply that the defendant was guilty of no negligence in using the arrangement which it used. It then decided in terms that the shovel car was not a car within the meaning of section 2. Only after these preliminaries did it say that, were the law otherwise, the deceased was guilty of contributory negligence; leaving it somewhat uncertain what the negligence was.

It seems to us not extravagant to say that the final ruling was so implicated with the earlier errors that on that ground alone the judgment should not be allowed to stand. We are clearly of opinion that Schlemmer's rights were in no way impaired by his getting between the rails and attempting to couple the cars.

So far he was saved by the provision that he did not assume the risk. The negligence, if any, came later.

any, came later. We doubt if this was the opinion of the court below. But suppose the nonsuit has been put clearly and in terms on Schlemmer's raising his head too high after he had been warned. Still we could not avoid dealing with the case, because it still would be our duty to see that his privilege against being held to have assumed the risk of the situation should not be impaired by

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