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roadbed, works, boats, wharves, or other equipment,” and even as to “cars, engines, and appliances,” except to the limited extent to which appliances to be used in connection with cars and engines have been prescribed by statute.

Judicial construction that thus makes the system of federal liability a legal hybrid, — partly statutory and partly commonlaw, - rests apparently upon the theory that the act does not "cover the subject,” and that what is regarded as an omission in the act is to be "pieced out” by recourse to the common law. In other words, the conclusion reached in Seaboard Air Line Ry. v. Horton, 4 is a departure from the principle stated in Michigan C. R. Co. v. Vreeland.5

Since, also, Seaboard Air Line Ry. v. Horton originated in the state of North Carolina, where assumption of risk has been abolished by statute, it is difficult to perceive from what source the court derived the common-law principle which it applied. Without considering the legal basis or source of authority of the common law as a rule of decision in the United States, the court assumed the existence of a common-law doctrine of assumption of risk, which state legislation is powerless to repeal, and which is available to "piece out” what was conceived to be an omission in the fourth section to deal fully with common-law assumption of risk.

The court apparently assumed that the act of Congress occupies with respect to the common law the same relation as an act of Parliament, and that the Liability Act, although enacted in the exercise of the exclusive power of legislation vested in Congress by the commerce clause of the Constitution, and as a distinct act of federal sovereignty, is to be regarded merely as an act amendatory of the common law. And what common law? Not the common law of the state, for the state had abolished the principle, which the court applied.

Proceeding upon the assumption of such a common-law principle, which is beyond the power of the state to repeal, the court gave no apparent consideration to the fact that the unconditional liability created by the first section excludes that form of assumption of risk which at common law operates as a bar to recovery when the injury results “in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.”

4 Supra.

6 Supra.

Before proceeding to a technical construction of the act, or attempting to show that the fourth section, instead of giving rise to a defense in favor of the carrier, in fact extends the liability created by the first section, let us consider the anomalous character of the act with this doctrine of the common law construed into it.

The decision in the Horton Case imputes to Congress the inexplicable purpose of imposing the highest degree of liability for failure to comply with statutes enacted for the safety of employees, and, at the same time, of affording immunity to the highest degree of negligence of which the carrier can be guilty with respect to all other instrumentalities not covered by such statutes.

Can any intelligible reason be given why Congress should have intended thus to discriminate between such appliances as driving-wheel brakes, automatic couplers, grab-irons, draw-bars, running-boards, steps, and locomotive ash-pans, on the one hand, and bridges, trestles, roadbeds, tracks, ties, machinery, works, boats, wharves, and all other kinds of appliances and equipment, on the other? Can any reason be conceived why Congress, for the purpose of promoting the safety of employees or advancing interstate commerce, should have imposed absolute liability for the failure to equip cars and engines with the statutory appliances, not to be affected by the employee's knowledge of the omission nor to be mitigated by his contributory negligence, and yet, with respect to all other instrumentalities, have given to the carrier the benefit of the common-law defense of assumption of risk with the encouragement to negligence which that defense affords?

The explanation of the provision of the third section, forbidding the defense of contributory negligence even in mitigation of damages, and of the fourth section, forbidding the defense that the risk was one of the assumed “risks of his employment,” when the injury to the employee results from the violation of a statute, is that Congress intended to compel compliance with its statutes by forbidding any defense in case of their violation. But, since it is impracticable to regulate by statute the whole matter of the construction, equipment, and maintenance of an interstate rail


way, to the extent that the character and condition of the equipment is not, and in the nature of things cannot be, prescribed by statute, the existence of any “defect or insufficiency” due to the carrier's negligence, from which injury to its employee results in whole or in part, is made the conclusive test of liability.

When such a defect or insufficiency and its causal relation to the injury are shown, the liability is absolute and subject only to mitigation to the extent, to be determined by the jury, that the injury is attributable to the employee's contributory negligence.

In the Horton Case the court draws the following distinction between “contributory negligence,” which the act provides shall not bar a recovery, and “assumption of risk,” which the court declares shall bar recovery:

“Contributory negligence involves the notion of some fault or breach of duty on the part of the employee; and since it is ordinarily his duty to take some precaution for his own safety when engaged in a hazardous occupation, contributory negligence is sometimes defined as a failure to use such care for his safety as ordinarily prudent employees in similar circumstances would use. On the other hand, the assumption of risk, even though the risk be obvious, may be free from any suggestion of fault or negligence on the part of the employee.”

Can any reason be given why Congress should have intended to forbid recovery to an employee guilty of no fault, and yet allow recovery to an employee guilty of contributory negligence, which necessarily implies that he was chargeable with the same knowledge of the danger which resulted in the injury? Or can any reason be given why Congress should have intended to forbid recovery to an employee for merely remaining in the service with knowledge and without complaint, and yet allow recovery to an employee who, with the same knowledge, expressly and for valuable consideration contracted to exempt the carrier from liability?

Besides the policy of the act and the ground of its constitutionality declared in Mondou v. New York, N. H. & H. R. R. Co.,8 already quoted, we have the following statement of the court in Pedersen v. Delaware, L. & W. R. R. Co.: 9

6 Baltimore & O. R. Co. v. Darr, 204 Fed. 751 (1913); Grand Trunk W. Ry. Co. v. Lindsay, 201 Fed. 836 (1912); Wright v. Yazoo & M. V. R. Co., 197 Fed. 94 (1912); Illinois Cent. R. Co. o. Nelson, 203 Fed. 956 (1913); St. Louis, I. M. & S. Ry. Co. v. Conley, 187 Fed. 949 (1911); Philadelphia, B. & W. R. R. Co. v. Tucker, 35 App. D.C. 123, 220 U. S. 608 (1910); and by the trial court in Pedersen v. Delaware, L. & W. R. R. Co., 229 U. S. 146 (1913).

? Supra, p. 639.

8 Supra.

. . . Indeed, the statute now before us proceeds upon the theory that the carrier is charged with the duty of exercising appropriate care to prevent or correct ‘any defect or insufficiency ... in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.""

Is it conceivable that the policy of the act, as thus twice declared by the court, could be more effectually defeated than by introducing into it the common-law defense of assumption of risk as to all dangers arising from defects and insufficiencies, except from violations of statutes? This defense encourages negligence. As observed by Judge Jaggard in Rase v. Minnea polis, St. P. & S. S. M. R. Co.: 11

“The reasoning by which it is sought to be justified, carried to its logical conclusion, tends to result in this paradox: The more grossly the master is negligent, the more certain is the assumption of risk by the servant, and the master's exoneration. If the master be more careful, then the more doubtful is the servant's assumption of risk, and the more probable is the master's liability. The employer who is successfully careful and he who is extremely careless are equally protected. The exercise of care is discouraged, and a premium is put on negligence.”

The doctrine of assumption of risk which thus gives immunity to the employer's negligence and compels the servant, as a last resort, to quit the service and stop the business in order to escape irremediable injury, is at variance with the ground upon which the constitutionality of the act was sustained. Such a doctrine had its origin in the relation of master and servant under conditions which affected the interests only of the employer and employee. It is an incubus upon the interstate commerce of the country with the important public interests which that commerce subserves. Under its baleful influence upon commerce, in time of peace trainmeň, on becoming chargeable with knowledge of the carrier's negligence, must cease the transportation of passengers, mails, and freight, and in time of war, the transportation of troops as well.

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The doctrine of assumption of risk originated in the case of Priestley v. Fowler. 11 There is no more similarity between the reasons and policy upon which that decision is based, and the reasons and policy which called for the legislation embodied in the Federal Employers' Liability Act, than there is between a “butcher's van” and the physical equipment of an American transcontinental railway.

It is inconceivable that Congress should have intended to fetter the interstate commerce of the present day with the crude doctrines laid down by Lord Abinger in Priestley v. Fowler, which involved the question of liability of a butcher for injury to his servant resulting from an overloaded “butcher's van,” — doctrines against which many of the courts have protested and the injustice of which, in their application to modern industrial conditions, has brought forth the various acts of remedial legislation in all the countries in which the common law of England has prevailed.

The interstate carriers of the United States are public service corporations. The commerce in which they are engaged and the instrumentalities by which that commerce is carried on were not conceived of at the time of Priestley v. Fowler. On that commerce depend the wealth, the happiness, and the civilization of the country. Employees of interstate carriers are indispensable instrumentalities or agencies in that commerce. The commerce must go on; employees cannot stop.

To free commerce from the fetters of the common law, “to impel the carrier to avoid or prevent the negligent acts and omissions which are made the bases of the rights of recovery which the statute creates and defines,” and thereby "to promote the safety of the employees and to advance the commerce in which they are engaged," 12 — was the enlightened purpose of the act and the constitutional justification for this exertion of congressional power.13


3 Mees. & W. 1 (1837). 12 Mondou v. New York, N. H. & H. R. R. Co., supra, p. 51.

13 Senator Dolliver, discussing upon the floor of the Senate the Act of April 22, 1908, said:

“The public policy which we now declare is based upon the failure of the common law to meet the modern industrial conditions."

Senator Borah, advocating the amendment of April 5, 1910, declared that,

“It was the intention of Congress in the enactment of this law originally, and it may be presumed to be the intention of the present Congress, to shift the burden of

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