of the rule stated in the paragraph above. The courts of Kentucky, (a) Massachusetts, (') Pennsylvania, () and Tennessee (4) have allowed recovery for injuries received by employees riding on trains or street cars at the close of the day's work or for meals without payment of fare, the view being taken that such transportation was not connected with the performance of their duties, which were at an end for the time, and that they had no connection with the operation of the vehicle on which they rode.

The variety of facts involved in cases presenting the question of course of employment is so great that it would practically require an enumeration of the decisions to present the attitude of the courts thereon. The general rule has been mentioned, i. e., that the employer is not liable for injuries incurred by employees going beyond the scope of their employment. () They approximate the condition of volunteers, with whom they are sometimes classed. By the term "volunteers" is meant persons not in the service of the employer prior to their engaging, without authorization, in the employment at which they received the injury complained of, and their situation is in general no better than that of trespassers. They are held to have assumed the limitations of servants without acquiring the right to claim the performance of a master's duties toward them. () They will be protected from wanton injuries at the hands of the regular employees, however, (9) and the circumstances may be such that they will be held to warrant a service rendered at the invitation of persons not ordinarily authorized to hire employees so as to give to injured volunteers a right to recover. (") Or it might be said that the situation of the persons so employed is modified so that they are no longer regarded as volunteers, at least not as trespassers.

The reason for the rule as to volunteers is that no one can be subjected to the obligations of an employer, which are the result of contract, without his consent thereto, either express or implied. This being the case, the situation of a person undertaking to render service, either on his own motion or at the invitation of an unauthorized person, gains nothing from the fact that the danger was not appreciated. This prevents exceptions in behalf of minors, though

a Louisville & N. R. Co. v. Scott (1900), 22 Ky. L. Rep. 30, 56 S. W. 674. Dickinson . West End St. R. Co. (1901), 177 Mass. 365, 59 N. E. 60. McNulty r. Pennsylvania R. Co. (1897), 182 Pa. 479, 38 Atl. 524.

$61.

Chattanooga Rapid Transit Co. r. Venable (1900), 105 Tenn. 460, 58 S. W.

Page 46, supra.

f Langan r. Tyler (1902), 114 Fed. 716 (C. C. A.).

9 Kentucky C. R. Co. v. Gastineau (1885), 83 Ky. 119; Evarts r. St. Paul, M. & M. R. Co. (1894), 56 Minn. 141, 57 N. W. 459.

Bradley v. New York C. R. Co. (1875), 62 N. Y. 99; Barstow r. Old Colony R. Co. (1887), 143 Mass. 535, 10 N. E. 255.

in some jurisdictions they are not regarded as trespassers when they are too young to be charged with discretion, and thus a greater degree of caution must be exercised in their behalf.

DETAILS OF WORK.

A general limitation of the obligations of the employer is to be found in the rule that he is not bound to supervise the purely operative details of his employees' undertakings. He will not be responsible, therefore, for merely transitory dangers, "existing only on the single occasion when the injury was sustained, and due to no fault of plan or construction, or lack of repair, and to no permanent defect or want of safety in the defendant's works, or in the manner in which they had been ordinarily used."(") So, also, if the danger arises in the progress of the work and is one of the understood conditions of such progress, no liability attaches to the employer. Acts which are involved in the preparation or care of instrumentalities cast no responsibility upon the employer where such acts are a part of the work of the employees affected. If, however, the person caring for or preparing the agencies is not the one who uses them, the latter person will, according to a large number of cases, have an action for injuries resulting from the negligence of the first-named employee, (") though mere difference of employment does not imply such right. Other decisions, many of them subsequently overruled, make repair hands fellow-servants with the users of the instrumentalities.

The improper use of suitable instrumentalities, or failure to use those furnished, erroneous choice of methods of work, or improper orders and assignments of subordinates to duty are acts of a superior for which the employer will not in general be held responsible. (c) In the same category are found the giving of signals, the transmission of orders, and the manipulation of instrumentalities (e. g., cars on railway tracks) during the progress of work. (4) The adjustment of temporary structures and appliances used in the course of the work are within the rule of nonliability.

The reverse has been held where the appliance causing the injury was furnished by the employer himself, where there was an implied undertaking that the appliance furnished should be in a completed condition, where the employer failed to furnish suitable material for the preparation of an instrumentality, where the employee did not

a Meehan . Spiers Mfg. Co. (1899), 172 Mass. 375, 52 N. E. 518.

Ford v. Fitchburg R. Co. (1872), 110 Mass. 240, 14 Am. Rep. 598; Hough v. Texas & P. R. Co. (1879), 100 T. S. 213; Gunter r. Graniteville Mfg. Co. (1882), 18 S. C. 262, 44 Am. Rep. 573.

Cullen v. Norton (1891), 126 N. Y. 1, 26 N. E. 905.

d Martin

hison, T. & S. F. R. Co. (1897), 166 U. S. 399, 17 Sup. Ct. 603.

have free choice in the selection of materials, and where the danger resulted from conditions which might properly be classed as permanent.

In concluding this review of the common-law phases of the employer's liability it is hardly necessary to recur to the preliminary statements made as to the variant and contradictory interpretations promulgated by the same courts at different times and to the dissimilarity of views held by the courts of different States, since the importance of definite, unifying legislation must be obvious. In considering the statutes enacted on the subject, a considerable influence toward harmonizing the law will be found in the fact that, a legislature enacting a statute copied from another State is assumed to take over also the construction and interpretation put upon the statute by the courts of the earlier enacting State prior to its adoption by the legislature of the later one. Apart from this fact, however, the diversities of interpretation of the common law reappear to affect the construction put upon statutes of independent enactment in the various States.

It was generally believed that a long step toward the harmonization of the law relating to the liability of common carriers for injuries to their employees was taken in 1906 in the enactment of a Federal statute applying to interstate commerce generally. This belief was based on the fact that such a statute would supersede all local statutes and rulings where it applied, and also because its construction by the Supreme Court of the United States, in any case that should come before it, would become the authoritative ruling in every jurisdiction on the point involved. By the ruling of the Supreme Court (") this law was declared not constitutional. What State legislation has accomplished will appear in the main in the following portions of this article.

LIABILITY UNDER STATUTE LAW.

EMPLOYERS' LIABILITY LAWS.

The laws enacted in the United States for the purpose of determining the liability of the employer for injuries to his employees are of two principal classes, one relating in a more or less general and inclusive way to the subject of employment, the other confining itself to specified forms or groups of employment. The laws of both classes are reproduced in the following compilation, following which is a brief discussion of their application and judicial construction.

Nos. 216, 222, October term, 1907. See pages 216--239, below. A bill intended to embody such provisions of this act as could be constitutionally enforced has been introduced, but has not at this date come up for consideration.

דיי

APPLIANCE AND INSPECTION LAWS.

Ay of Fow that are related to those here considered prescribes of atoty appliances on railways and in factories and reguthe operation of mines with a view to the safety of employees. taw frequently contain a provision that violation of the cute hall entail a special liability upon the employer for injuries ated by such violation, or shall affect his defenses in actions. To juries. The violation of laws of this class is construed by the

nts of some States only as evidence of negligence, (") by others. as negligence per se. (") In the latter view, the defense of assumed risks is barred, (") and the party injured is not bound to show that he was in the exercise of due care to avoid an injury caused by a willful violation. (4) None of these laws can properly be reproduced in the present connection; but their more important provisions, from the standpoint of their effect on the liability of the employer, will be noted.

RIGHT OF ACTION FOR INJURIES CAUSING DEATH.

In almost every jurisdiction in this country laws have been enacted which, while not employers' liability laws in form, have yet gone far to ameliorate the condition of the employee suffering under the hardship of the common-law rule that prohibits recovery of damages in cases where an injured person dies immediately as a consequence of his injury. Though this statute in itself does not affect the usual defenses of the employer in cases of accidental injury, it does give a new right to the heirs or personal representatives of a deceased employee, conferring upon them the same right of action that the injured person would have had had he survived. These laws are generally held to inure to the benefit of nonresident alien beneficiaries. () The laws of the various States differ in some minor points, though they are alike modeled after an English act of 1846, known as "Lord Campbell's act." The States are not uniform in their rulings on the question as to whether or not punitive or exemplary damages are recoverable under their acts, but only such rights can be enforced as the statute provides. The amount recoverable is fixed

Pitcher v. New York C. & H. R. R. Co. (1891), 127 N. Y. 678, 28 N. E. 136; Jupiter Coal Min. Co. v. Mercer (1899), 84 Ill. App. 96.

Colliott v. American Mfg. Co. (1897), 71 Mo. App. 163; Lore v. Am. Mfg. Co. (1901), 160 Mo. 608, 61 S. W. 678.

Narramore v. Cleveland, etc., R. Co. (1899), 96 Fed. 298; United States Cement Co. v. Cooper (1907), 82 N. E. 981. (Ind.) (See under Restrictions of employees' right to recover, page 14, above.)

* Pawnee Coal Co. v. Royce (1900), 184 Ill. 402, 56 N. E. 1090.

Mulhall . Fallon (1900), 176 Mass. 266, 57 N. E. 386; Low Moor Iron Co. v. La Bianca's Admr. (1906), 55 S. E. 532, 106 Va. 83.

by the statutes of some States, while others declare in the constitution of the State that the amount shall not be restricted. Persons properly classifiable as beneficiaries must be found to bring the action, the persons so named by the English act being the wife, husband, parent, and child of the deceased person. In a number of States the use of the words "personal representatives" implies a less restricted classification of beneficiaries. Of the same effect is the ruling in a case under the statute of Connecticut on this subject, that the ground of damages is not the loss to the relatives, but the personal injury to the deceased. (a)

Laws governing the liability of employers either contain independent provisions conferring the right of action in cases of death from accidental injury or refer to the State statute providing for such action.

Owing to the fact that these laws are not to be regarded as employers' liability laws, and, further, that they are very similar in their principal features, no reproduction of them will be made beyond a presentation of the law of the District of Columbia (Code of 1901), which will serve as an example of this class of statutes:

SECTION 1301. Whenever by an injury done or happening within the limits of the District of Columbia the death of a person shall be caused by the wrongful act, neglect, or default of any person or corporation, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured, or if the person injured be a married woman, have entitled her husband, either separately or by joining with the wife, to maintain an action and recover damages, the person who or corporation which would have been liable if death had not ensued shall be liable to an action for damages for such death, notwithstanding the death of the person injured, even though the death shall have been caused under circumstances which constitute a felony; and such damages shall be assessed with reference to the injury resulting from such act, neglect, or default causing such death, to the widow and next of kin of such deceased person: Provided, That in no case shall the recovery under this act exceed the sum of ten thousand dollars: And provided further, That no action shall be maintained under this chapter in any case when the party injured by such wrongful act, neglect, or default has recovered damages therefor during the life of such party.

SEC. 1302. Every such action shall be brought by and in the name of the personal representative of such deceased person, and within one year after the death of the party injured.

SEC. 1303. The damages recovered in such action shall not be appropriated to the payment of the debts or liabilities of such deceased person, but shall inure to the benefit of his or her family and be distributed according to the provisions of the statute of distribution in force in the said District of Columbia.

@ McElligott v. Randolph (1891), 61 Conn. 157.