12. A brakeman is injured by striking his head against a low bridge under which his train passed at night. He knew the location of the bridge and had passed under it at other times. Can he recover from the railroad company? 13. P is crushed between the top of a car and a girder while repairing the roof of the car. It is shown that the accident was caused by slight negligence on his part. Can he recover damages? 14. Summarize the defenses possible at common law in suits against employers for damages for injuries to employees. 15. Does the general enactment of workmen's compensation laws completely remove all grounds for damage suits under the common-law employers' liability principle? 16. P is a child whose employment at a particular kind of work is prohibited by the law of the state. P is injured and sues for damages. D, the employer, presents the defense of contributory negligence. Decide. D [In many jurisdictions the common-law defenses of the employer have been altered by statutory enactment. In the cases of most states Workmen's Compensation Acts provide the means of dealing with the bulk of accidents received by employees in the course of their employment. Where such acts do not apply, and especially in federal jurisdiction where no such acts applying to the mass of private employees exist, the complete or partial abrogation of the common-law defenses is of great assistance to the employees in collecting damages for injuries received. A description of the statutes abrogating the defenses and of the multitude of court decisions that have arisen under them would far exceed the limits of the present volume. The following description1 of the federal act relating to railroad employees will suggest the general content of the statutes. "An Employers' Liability Act was passed in 1906,2 but declared unconstitutional by the Supreme Court in 1908.3 Three months later Congress passed a new act, meeting the constitutional objections. The act of 1908 (April 22) provided that every railroad while engaging in interstate or foreign commerce should be liable in damages to any person suffering injury while employed by the railroad in such commerce, or in case of death to his representative. The liability of the 1 Jones, Eliot, Principles of Railway Transportation, pp. 382-383. Copyright (1924) by the Macmillan Company. Reprinted by permission. 234 Statutes at Large, Part I, pp. 232-233. 3 207 U. S. 463-541. 4 35 Statutes at Large, Part I, pp. 65-66. This act was upheld by the Supreme Court, 223 U. S. 1-59 (1912). railroad was for injury or death due in whole or in part to the negligence of any of its officers, agents, or employees, or due to any defect or insufficiency (the result of its negligence) in its cars, engines, appliances, and roadbed. In an action brought against the railroad to recover damages, the fact that the employee may have been guilty of contributory negligence should not prevent recovery, though the damages should be diminished by the jury in proportion to the amount of negligence attributable to the employee. Moreover, in an action to recover damages the employee should not be held to have assumed the risks of his employment in any case where the violation by a railroad of a statute enacted for the safety of employees contributed to his injury or death. Any contract intended to enable the railroad to exempt itself from the liability created by the act was to that extent void." In 1920 Congress by the act of June fifth (41 Stat. L. 1007) gave to seamen who suffer injury in course of their employment the same right of action at law for damages as was given to railroad employees by the statute described by Mr. Jones.] QUESTIONS 1. Explain definitely why it would be easier for an injured railroad employee to recover under the Employers' Liability Act than at common law. 2. How could seamen recover damages for injuries received in course of employment prior to the passage of the act of 1920? 3. "Employers have a vested interest in the common-law defenses. Congress has no right to abrogate them." Is there any basis for such a statement? 4. "The states have Workmen's Compensation Laws, so it is unnecessary to provide protection for railroad employees or seamen through federal action." Is this true? 5. Why would it not be simpler and more just to give seamen and railroad workers the advantages of a workmen's compensation act? B. COMPENSATION LAWS IN THE UNITED STATES I. CONSTITUTIONALITY NEW YORK CENTRAL R. R. CO. v. WHITE MR. JUSTICE PITNEY delivered the opinion of the court: A proceeding was commenced by defendant in error before the Workmen's Compensation Commission of the State of New York, established by the Workmen's Compensation Law of that state, to recover compensation from the New York Central & Hudson River Railroad Company for the death of her husband, Jacob White, who lost his life September 2, 1914, through an accidental injury arising out of and in the course of his employment under that company. The Commission awarded compensation in accordance with the terms of the law; its award was affirmed, without opinion, by the appellate division of the supreme court for the third judicial department, whose order was affirmed by the court of appeals, without opinion. 216 N. Y. 653. Federal questions having been saved, the present writ of error was sued out by the New York Central Railroad Company, successor, through a consolidation of corporations, to the rights and liabilities of the employing company. The writ was directed to the appellate division, to which the record and proceedings had been remitted by the court of appeals... The errors specified are based upon these contentions: (1) that the liability, if any, of the railroad company for the death of Jacob White, is defined and limited exclusively by the provisions of the Federal Employers' Liability Act of April 22, 1908, chap. 149, 35 Stat. at L. 65, and (2) that to award compensation to defendant in error under the provisions of the Workmen's Compensation Law would deprive plaintiff in error of its property without due process of law, and deny to it the equal protection of the laws, in contravention of the 14th Amendment. The first point assumes that the deceased was employed in interstate commerce at the time he received the fatal injuries. According to the record, he was a night watchman, charged with the duty of guarding tools and materials intended to be used in the construction of a new station and new tracks upon a line of interstate railroad. The Commission found, upon evidence fully warranting the finding, that he was on duty at the time, and at a place not outside of the limits prescribed for the performance of his duties; that he was not engaged in interstate commerce; and that the injury received by him and resulting in his death was an accidental injury arising out of and in the course of his employment. The admitted fact that the new station and tracks were designed for use, when finished, in interstate commerce, does not bring the case within the Federal act. . . . . Decedent's work bore no direct relation to interstate transportation, had to do solely with construction work, which is clearly distinguishable, . . . . The first point, therefore, is without basis in fact. We turn to the constitutional question. The Workmen's Compensation Law of New York establishes forty-two groups of hazardous employments, defines "employee" as a person engaged in one of these employments upon the premises, or at the plant, or in the course of his employment away from the plant of his employer, but excluding farm laborers and domestic servants; defines "employment" as including employment only in a trade, business, or occupation carried on by the employer for pecuniary gain, "injury" and "personal injury" as meaning only accidental injuries arising out of and in the course of employment, and such disease or infection as naturally and unavoidably may result therefrom; and requires every employer subject to its provisions to pay or provide compensation according to a prescribed schedule for the disability or death of his employee resulting from an accidental personal injury arising out of and in the course of the employment, without regard to fault as a cause, except where the injury is occasioned by the wilful intention of the injured employee to bring about the injury or death of himself or of another, or where it results solely from the intoxication of the injured employee while on duty, in which cases neither the injured employee nor any dependent shall receive compensation. By section 11 the prescribed liability is made exclusive, except that, if an employer fail to secure the payment of compensation as provided in section 50, an injured employee, or his legal representative, in case death results from the injury, may, at his option, elect to claim compensation under the act, or to maintain an action in the courts for damages, and in such an action it shall not be necessary to plead or prove freedom from contributory negligence, nor may the defendant plead as a defense that the injury was caused by the negligence of a fellow servant, that the employee assumed the risk of • his employment, or that the injury was due to contributory negligence. Compensation under the act is not regulated by the measure of damages applied in negligence suits, but, in addition to providing medical, surgical, or other like treatment, it is based solely on loss of earning. power, being graduated according to the average weekly wages of the injured employee and the character and duration of the disability, whether partial or total, temporary or permanent; while in case the injury causes death, the compensation is known as a death benefit, and includes funeral expenses, not exceeding $100, payments to the surviving wife (or dependent husband) during widowhood (or dependent widowerhood) of a percentage of the average wages of the deceased, and if there be a surviving child or children under the age of eighteen years an additional percentage of such wages for each child until that age is reached. There are provisions invalidating agreements by employees to waive the right to compensation, prohibiting any assignment, release, or commutation of claims for compensation or benefits except as provided by the act, exempting them from the claims of creditors, and requiring that the compensation and benefits shall be paid only to employees or their dependents. Provision is made for the establishment of a Workmen's Compensation Commission with administrative and judicial functions, including authority to pass upon claims to compensation on notice to the parties interested. The award or decision of the Commission is made subject to an appeal, on questions of law only, to the appellate division of the supreme court for the third department, with an ultimate appeal to the court of appeals in cases where such an appeal would lie in civil actions. A fund is created, known as "the state insurance fund," for the purpose of insuring employers against liability under the law, and assuring to the persons entitled the compensation thereby provided. The fund is made up primarily of premiums received from employers at rates fixed by the Commission in view of the hazards of the different classes of employment and the premiums are to be based upon the total pay roll and number of employees in each class at the lowest rate consistent with the maintenance of a solvent state insurance fund and the creation of a reasonable surplus and reserve. Elaborate provisions are laid down for the administration of this fund. By section 50, each employer is required to secure compensation to his employees in one of the following ways: (1) By insuring and keeping insured the payment of such compensation in the state fund; or (2) through any stock corporation or mutual association authorized to transact the business of workmen's compensation insurance in the state; or (3) "by furnishing satisfactory proof to the Commission of his financial ability to pay such compensation for himself, in which case the Commission may, in its discretion, require the deposit with the Commission of securities of the kind prescribed in section 13 of the Insurance Law, in an amount to be determined by the Commission, to secure his liability to pay the compensation provided in this chapter." If an employer fails to comply with this section, he is made liable to a penalty in an amount equal to the pro rata premium that would have been payable for insurance in the state fund during the period of noncompliance; besides which, his injured employees or their dependents are at liberty to maintain an action for damages in the courts, as prescribed by section II. In December, 1913, the legislature enacted the law now under consideration (Laws 1913, chap. 816), and in 1914 reenacted it (Laws |