servant caused by the negligence of a fellow-servant in a common employment; but this exemption does not extend to injuries caused by the carelessness or neglect of another person in the master's service in an employment not common to that in which the person injured is engaged, and upon a subject in regard to which the person injured has a right to look for care and diligence on the part of the other person as the representative of the common master. If no one is appointed by a railroad company to look after the condition of its cars, and see that the machinery and appliances used to move and stop them are kept in repair and in good working order, it is liable for the injuries caused thereby. If one is appointed by it charged with that duty, and the injuries result from his negligence in its performance, the company is liable. He is, so far as that duty is concerned, the representative of the company. Section 1130 [4096] does not apply to losses suffered by an employee in consequence of the negligence of another person, employed by the same employer in another and not in the same general business. Section 1131 [4097] expresses the general law, that an employer is responsible for injuries to his employees caused by his own want of ordinary care. His selection of defective machinery, which is to be moved by steam power, is of itself evidence of a want of ordinary care, and allowing it to remain out of repair, when its condition is brought to his notice, or by proper inspection might be known, is culpable negligence. (United States Supreme Court, 1886, Northern Pacific Railroad Company v. Herbert, 116 U.S., 642.)

A section foreman and the conductor of a train are coemployees within the meaning of the rule of the common law, and also section 1130 [4096]. (Supreme Court, 1889, Elliot v. Chicago, Minneapolis and St. Paul Railway Company, 5 Dakota, 523.)

Where two servants of the same master are engaged together in the accomplishment of a common object, the one having no control or authority over the other, they are coemployees within the meaning of section 1130 [4096]. (Supreme Court, 1889, Schmidt v. Leistekow, 6 Dakota, 386.)

The negligence of a foreman of a gang in failing to block a pile which was shoved against plaintiff, injuring him, because it was not blocked, is the negligence of a fellow-servant within section 1130 [4096], although the foreman had authority to employ and discharge plaintiff, and plaintiff was under his superintendence and control in doing the work in the performance of which he was injured. Whether a negligent servant is the fellow-servant of an employee who is injured by the carelessness of the former, within section 1130 [4096], depends, not upon the relative rank of the two servants, but upon the character of the work, the negligence with respect to which resulted in the injury. The negligence of a servant engaged in the same general business with the injured servant is the negligence of a fellowservant, whatever position the former occupies with respect to the latter, as to all acts which pertain to the duties of a mere servant, as contradistinguished from the duties of the master to his employees. (Supreme Court, 1891, Ell v. Northern Pacific Railroad Company, 1 N. D., 336.)

A brakeman and a conductor are fellow-servants within section 1130 [4096]. (United States Circuit Court of Appeals, Eighth Circuit, 1894, Northern Pacific Railroad Company v. Hogan, 63 Federal Reporter, 102.)

OHIO.

REVISED STATUTES, SEVENTH EDITION, PART I, POLITICAL, SECTIONS 290 To 306a.— Mine regulations and inspection. (a)

Under sections 298 and 301 of the Revised Statutes, which require the operator of a coal mine to keep the same free from gas, and to have the working places examined every morning with a safety lamp before workmen are allowed to enter, and give a cause of action to a person injured for direct damage occasioned by any violation or willful failure to comply with the requirements of the statute, an employee can not maintain an action against his employer for an injury following such violation, unless at the time he was injured he was in the exercise of due care. One who voluntarily assumes a risk thereby waives the provisions of a statute made for his protection; and, where a statute does not otherwise provide, the rule requiring the plaintiff, in an action for negligence, to be free from fault contributing to his injury is the same, whether the action is brought under a statute or at common law. (Supreme Court, 1895, Krause et al. v. Morgan, 40 Northeastern Reporter, 886.)

a See Law, page 821.

REVISED STATutes, Seventh EDITION, PART I, POLITICAL, SECTIONS 2573 TO 2575.-Factories, workshops, etc. (a)

Section 2573 does not impose upon any owner in fee of a building more than two stories high the duty to provide a convenient exit from the different upper stories of said building when such owner is not in possession or control thereof, although his tenant in possession and control of the building may use the same as a factory or workshop. The legislature intended to provide for the safety of laborers or employees engaged in manufacturing. The owner of a building may have no interest in the use to which it is applied. Hence the owner of a building and the owner of a factory which is conducted in the building may be different persons, and when this is so the owner of the factory and not the owner in remainder or reversion of the building, is the person on whom the statute imposes the duty. (Supreme Court, 1885, Lee v. Smith, 42 Ohio State Reports, 458.)

Section 2573 is intended, as a primary object, to secure means for safe egress by tenants occupying the upper stories of such buildings in case of fire, and applies as well to those who occupy the second story as to occupants of the higher stories. The duty to provide convenient exits, prescribed by section 2573, is not confined to buildings within municipalities, but is of general application. A tenant in a tenement house, situate within a city or village, who, without fault on his part, receives injury because of the neglect of the owner to comply with the requirements of section 2573, may maintain against such owner a civil action for damages, and his right of recovery will not be affected by the fact that the mayor has not given to the owner the notice required by section 2574. A four-story building, occupied by three families living in separate apartments on the second floor and by two families living in separate apartments on the third floor, numbering in all sixteen persons, all tenants of one owner, is a "tenement house" within the meaning of section 2573. (Supreme Court, 1892, Rose v. King, 49 Ohio State Reports, 213.)

REVISED STATUTES, SEVENTH EDITION, PART IV, PENAL, SECTION 6871.—Penalties for injuring mines, etc. (b)

Under section 6871 it is the duty of the owner, agent, or operator of a coal mine to keep a supply of timber constantly on hand and to deliver the same to the working place of the miner, and a failure so to do is negligence on his part, and if an injury is proximately caused thereby an action will lie to recover damages therefor. A sufficient supply of timber having been delivered to the working place of a miner, it is his duty under this section to securely prop the roof of such working place; and if he fails to do so, and thereby sustains injury, he is guilty of such negligence as will prevent a recovery therefor. If a miner props the roof of his working place until he regards it safe and then enters or remains therein and is injured by stones or other material falling from such roof in consequence of his mistake in judgment as to its safety, he can not sustain an action for such injury. One who enters or remains in the room of a coal mine, knowing the roof thereof to be unsafe, or having the means at hand of knowing the unsafety of such roof, is guilty of such negligence as will prevent a recovery for any injury he may sustain by the falling of such roof.

If one party has been negligent and the other party has knowledge thereof or is chargeable with such knowledge he must thereafter act with reference to such negligence and can not shut his eyes and claim that he relied upon a proper performance of duty by the other party. (Supreme Court, 1895, Coal Company . Estievenard, 40 Northeastern Reporter, 725.)

REVISED STATUTES, SEVENTH EDITION, PART V, UNCODIFIED, SECTIONS 9822 AND 9823.-Railroads-Blocking of frogs, switches, and guard rails. (c)

Where two railway companies receive cars from each other over a delivery track at a certain point, a person employed by one of them to take the number of its cars, and inspect their seal, as trains were made up at such place by the other, is an employee of the latter, within the meaning of this statute. (United States Circuit Court, Northern District, 1889, Atkyn v. Wabash Railway Company, 41 Federal Reporter, 193.)

The remedy by fine provided in section 2 [9823] of this act is not exclusive. An employee of a railroad company can maintain an action for damages for an injury caused by failure on the part of the company to comply with the provisions of a See Law, page 832. b See Law, page 845.. c See Law, page 860.

section 1 [9822] of said act. The servant of the company charged with the duty of filling or blocking the guard rail as required by section 1 [9822] of this act is not, as to the other employees of the railroad company, a fellow-servant engaged in a common employment. (Circuit Court, Third Circuit, 1891, The New York, Chicago and St. Louis Railroad Company v. Lambright, 5 Ohio Circuit Court Reports, 433.)

ACTS OF 1890, PAGE 149.-Liability of railroad companies for injuries of employees, etc. (a)

A railroad corporation for the failure to furnish a discharged employee the reason (in writing) for such discharge is not liable in a civil action to the penalty or forfeiture provided by an act of the legislature passed April 2, 1890 [above act], for the following reasons: The act nowhere declares that the failure of the railroad company to furnish the reason of the discharge "shall be unlawful." The failure to furnish the reason must be unlawful to constitute an "offense." So that if the failure to furnish a written reason for the discharge is not an offense" in the light and sense of this act, then it follows that it does not constitute a cause of action. (Circuit Court, Third Circuit, 1893, Crall v. The Toledo and Ohio Central Railroad Company, 7 Ohio Circuit Court Reports, 132.)

66

An engineer in charge of a locomotive on one train of cars of a railroad company is in a branch or department of its service separate from that of a brakeman on another train of the same company within the meaning of the terms "separate branch or department" as those terms are employed in section 3 of this act.

An engineer in charge of a locomotive who has authority to direct or control a fireman serving on the same locomotive is a "superior" within the meaning of the above-named section.

Whether an engineer or other employee of a railroad company has authority to direct or control other employees of the same company is a question of fact to be determined in each case. This may be done, however, either by proof of express authority, or by showing the exercise of such authority to be customary or according to the usual course of conducting the business of the particular company interested or of railroad companies generally. (Supreme Court, 1894, Cincinnati, Hamilton and Dayton Railroad Company v. Margrat, 37 Northeastern Reporter, 11.)

A railroad company is chargeable with knowledge of defects in its cars, locomotives, machinery, and their attachments, as provided in the second section of this act; and to overcome the effect of such knowledge the company must show that, in fact, it did not have such knowledge, and that it used due diligence to ascertain and remedy such defects. The presumption of diligence raised by proof of the employment of competent and careful employees will not be sufficient to overcome the effect of the knowledge of defects, which, by this statute, it is deemed to have.

In the trial of a personal-injury case against a railroad company for injuries caused by defects in its cars, locomotives, and machinery, or their attachments, the defects so causing injury are prima facie evidence of negligence on the part of such corporation; and by force of this statute the burden is thrown upon the company to show, by proof, that it has used due diligence, and is not guilty of negligence.

By virtue of the provisions of the third section of this statute a chief inspector of cars, having other inspectors under him, is not the fellow-servant of a brakeman. (Supreme Court, 1894, Columbus, Hocking Valley and Toledo Railway Company v. Erick, 37 Northeastern Reporter, 128.)

A train dispatcher, who has complete control of the movements of all trains on a division of a railroad, is not a fellow-servant of the engineer of a train running on such division, either at common law nor under section 3 of this statute, providing that every person in the employ of a railroad company actually having power or authority to direct or control any other employee, is not a fellow-servant but a superior of such other employee.

A telegraph operator at a station on the line of a railroad whose duty it is to receive telegraphic orders relative to the movements of trains from the train dispatcher at another place and communicate them to the engineers and conductors of trains at his station is not the superior but the fellow-servant, of the engineer of a train on such railroad, both at common law and under section 3 of this statute. (United States Circuit Court of Appeals, Sixth Circuit, 1895, Baltimore and Ohio Railroad Company v. Camp, 65 Federal Reporter, 952.)

a See Law, page 861.

The provision of the second section of this act, which provides that when certain "defects shall be made to appear in the trial of any action in the courts of this State, brought by such employee or his legal representatives against any railroad corporation for damages on account of such injuries so received, the same shall be prima facie evidence of negligence on the part of such corporation," applies to all railroad companies any part of whose line of railway extends into this State, whether the injury complained of was received within or without the State. (Supreme Court, 1896, Pennsylvania Company v. McCann, 42 Northeastern Reporter, 768.)

ACTS OF 1892, PAGE 269.-Protection of employees as members of labor unions. (a)

This act is constitutional. (Court of Common Pleas, Davis v. State, 30 Weekly Law Bulletin, Ohio, 342.)

ACTS OF 1893, PAGE 220.-Protection of motormen, etc., on street railways. (b)

This act is not in conflict with section 26, article 2 of the constitution of this State, which provides that "all laws of a general nature shall have a uniform operation throughout the State." Neither is it in conflict with section 1 of the fourteenth amendment to the Constitution of the United States. (Supreme Court, 1894, State v. Nelson, 39 Northeastern Reporter, 22.)

[The three following decisions were not rendered under any law published in this volume, but, being of interest, are here included:]

Men have a constitutional right "to assemble together in a peaceable manner to consult for their common good," but an assembling of men for the purpose of forming a combination to go upon the premises of a railroad company to obstruct its business and to prevent, by force or threats, its employees from performing their duties is an unlawful assembling. (New York, Lake Erie and Western Railroad Company v. Wenger, Weekly Law Bulletin, Ohio, May 9, 1887.)

The system of striking workman of sending a committee to the neighborhood of each factory where the strike is on for the purpose of reporting the number of workmen engaged in such factories and their addresses is not necessarily unlawful. A combination of workmen to secure increased wages by agreeing that no one of them shall work for their employer until he shall agree to pay the increased wages is legal. An injunction will not lie against all the members of a labor union because certain members thereof, during a strike, drove off certain workmen from the service of their employers, by means of threats, intimidation, and coercion. While the law permits striking workmen to persuade or induce other workmen to cease labor and join the strikers in their demand for higher wages, such strikers have no right to interfere by threats, intimidation, or coercion with the free will of such other workmen. A court of equity has power to enjoin striking workmen from the repeated interference with their employer's business by the commission of acts which naturally result in driving away other workmen. (Superior Court, Cincinnati, Perkins v. Rogg, 28 Weekly Law Bulletin, 32.)

A combination or a conspiracy, by a trades union, to boycott a newspaper for refusing to unionize its office is illegal and unlawful, and will be enjoined by a court of equity. Equity will enjoin the publication and circulation of posters, handbills, circulars, etc., printed and circulated in pursuance of such combination or conspiracy to boycott. (United States Circuit Court. Southern District, 1891, Casey v. Cincinnati Typographical Union, No. 3, et al., 45 Federal Reporter, 135.)

OREGON.

HILL'S ANNOTATED LAWS OF 1892, CRIMINAL CODE, SECTION 1893.-Intimidation, etc., of employers and employees. (c)

It is lawful for a trades union to adopt a scale of wages for which its members may work, and apportion apprentices among employers of its members according to the number of workmen they employ. Trades unions must depend for their membership upon the free choice of each member. A strike is not illegal per se. b See Law, page 871.

a See Law, page 865.

c See Law, page 882.

Where a trades union seeks by fair means to compel an employer of its members to observe one of its lawful rules it can not be restrained therefrom upon the ground that its object in enforcing the rule is to create a monopoly of labor in that particular trade. Section 1893 of Hill's Annotated Laws does not make it unlawful for a trades union, by resolution or order of its executive committee, to require its members, under pain of suspension or expulsion from the union, to quit a person's employ because of his violation of a lawful rule of the union. A conspiracy to injure or destroy a person's business or property is wrongful per se, although not indictable under this statute. Where persons conspire to injure or destroy another's business or property, and it clearly appears that the injury is threatened and imminent and will be irreparable, injunction will lie to restrain the conspirators. An injunction will not be granted unless it appears that great and lasting injury is about to be done by an illegal act. Allegations by plaintiff that the members of the defendant trades union conspired to compel him to submit to the union's dictation upon pain of being boycotted in business; that the union's executive committee entered plaintiff's premises without license and ordered his employees to strike, and that subsequently the union ordered another strike, both of which orders were obeyed; that defendant induced the city council, with threats of boycott at the polls, to reject plaintiff's bid for the city printing, although the bid was the lowest made; that defendant threatened to boycott plaintiff's customers if they patronized him, on account of which he lost one customer, and will lose another; and that defendant circulated the fact of such strikes by posting notices thereof in numerous places, all to the past injury and future danger of plaintiff's business, are not sufficiently definite to justify the issuance of an injunction. (Supreme Court, 1894, Longshore Printing and Publishing Company v. Howell et al., 38 Pacific Reporter, 547.)

HILL'S ANNOTATED LAWS OF 1892, MISCELLANEOUS LAWS, SECTION 4235.-Employment, etc., of Chinese. (a)

This section is in conflict with the treaty between the United States and the Emperor of China, which secures to the Chinese, resident here, the same right to be employed and labor for a living as the subjects of any other nation, and is therefore void. (United States Circuit Court, District of Oregon, 1879, Baker v. City of Portland, 5 Sawyer, 566.)

PENNSYLVANIA.

BRIGHTLY'S PURDON'S DIGEST, TWELFTH EDITION, 1895, PAGE 484, SECTIONS 72 AND 73.-Conspiracy-Labor combinations not unlawful, etc. (b)

[The two decisions immediately following were rendered in cases arising under sections 2 and 3, page 1172, Brightly's Purdon's Digest, edition of 1885, which have been superseded by section 73 of the edition of the Digest of 1895, passed in 1891; as the present law is of the same character as that contained in the sections referred to, so far as the points covered by the decisions are concerned, the principles involved in the decisions would seem to be equally applicable thereto:]

Since the passage of these sections members of trades unions who engage in a strike and notify other members to strike can not be held for a conspiracy unless they hinder the others from working by using force, threats, or menaces. Where a committee from a trade union visits a place where members of a union are working and notifies those members that the demand of the union has been refused by their employers and the workmen must therefore quit work, such notice is not a hindering of the others from working as would make the committee liable to be held for conspiracy. (Court of Quarter Sessions, Philadelphia, Pa., 1881, Commonwealth ex rel. Vallette v. Sheriff, 15 Phil. Reports, 393.)

A court of equity has jurisdiction to enjoin the commission of unlawful acts where the rights are clear and the injury irreparable. A man's business is property and may be protected against injury by unlawful acts tending to injure or destroy it. The fact that the acts complained of may be the subject of criminal prosecution does not oust equitable jurisdiction to prevent private injury. A bill in equity alleged that a number of persons had combined to proscribe the plaintiff's business by "boycotting" him and requesting others to do so; by threatening the parties dealing with him that they will, in turn, be "boycotted" or proscribed;

a See Law, page 887.

b See Law, page 903.