EMPLOYERS' LIABILITY ACTS. The English act, 1880, gives to all workmen, ex cept domestic or menial servants and sea men, a right of action if injured by reason of the defective condition of machinery, etc., if the defect was attributable to the negligence of the employer or his agent; to the negli gence of his superintendent or one to whom he has given authority over the workman; to some act or omission by a fellow workman in obedience to the employer's by-laws, or to the particular instruction of one placed in authority over him; or to a fellow work man in charge of any railroad signal, loco motive or train. The act abolishes the fel low servant rule, but not the contributory negligence rule. The employer may set up the defence that the workman knew of the defect but did not complain. A contract not to claim compensation under' the act is law ful ; Griffiths v. Earl of Dudley, 9 Q. B. D. 357.
The act of congress of June 11, 1906, was 'declared unconstitutional in the Employers' Liability Case (Howard v. R. Co.) 207 U. S. 463, 28 Sup. Ct. 141, 52 L. Ed. 297, Harlan, Holmes, Moody, and Lurton, JJ., dissenting. 'The act of April 22, 1908, as amended April .5, 1910, provides for the liability of common carriers engaged in interstate or foreign commerce to their employees injured in such commerce, or in case of death gives a right of action to their personal representatives for the benefit of the surviving widow or husband and children of such employee, and 'if none, then of such employee's parents, and if none, then of the next of kin depend ent upon such employee. There shall be only' one recovery for the same injury ; St. Louis, I. M. & S. Ry. Co. v. Hesterly, 228 U. S. 702, 33 Sup. Ct. 703, 57 L. Ed. It does away with the fellow servant rule, the contributory negligence rule, except that damages shall be diminished in proportion to the amount of contributory negligence at tributable to the employee, and the rule that an employee is held to have assumed the risk of his employment in any case where the violation, by the carrier, of any statute enacted for the safety Of employees contrib uted .to the injury or death of such employee. Acceptance of relief, such as railway relief, is no bar to an action though agreed to, but simply reduces the damages pro tanto.
The following cases define what is inter state commerce within the act. In Johnson v. Great Northern R. R. Co., 178 Fed. 643, 102 C. C. A. 89 (8th Cir.), it was held that an employee charged with the duty of' cou pling cars and airbrake pipes upon cars standing upon a switch track, some of which cars were engaged in interstate commerce, was himself employed in interstate com merce. In Zikos v. Navigation Co., 179 Fed. 893 (C. C., E. D. Wash.), it was held that a section hand, while driving a spike on the track of a railroad over which both inter state and intrastate commerce moved, was employed in interstate commerce. In Cen tral R. Co. of New Jersey v. Colasurdo, 192 Fed. 901, 113 C. C. A. 379 (2d Cir.), where the plaintiff was injured while repairing an Interstate road over which interstate com merce and freight, and cars and engines en gaged in interstate commerce were constant ly passing, he was considered as being en gaged in interstate commerce. In Pedersen v. R. Co., 197 Fed. 537, 117 C. C. A. 33 (3d (Cir.), the plaintiff was an iron worker on a 'bridge on which an additional track was be ing placed. In getting rivets for the bridge he went upon the main east-bound track of the road, where he was struck and injured by a local, intrastate train coming 'from the other direction ; and it was held that neither by operating such local train, nor by build ing an additional track or bridge, nor by sending the 'man for the rivets, was the car rier engaged in interstate commerce; nor was the plaintiff, by helping to build such bridge or by going upon a track which the company was not using in interstate com merce employed by such carrier in such com merce. The case was reversed in Pedersen v. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Holmes, Lamar and Lurton, JJ., dissenting. The court held there was evi dence to sustain a finding that at the time of the injury the defendant was engaged, and the plaintiff was employed by it, in inter state commerce. In Illinois Cent. R. Co. v. Porter, 207 Fed. 3.11 (C. C. A., 6th Cir.) a truckman employed by the railroad to wheel interstate freight from a warehouse into a car to be transported in interstate commerce was held to be engaged in such commerce.