In view of the changed conditions of American life since the Constitution was adopted, the distinction between interstate commerce and intrastate commerce may now be, as has been said of loving, mere folly,' but this cannot justify the courts in disregarding a distinction established by the Constitution and by the statute creating the cause of action, We must wear our old clothes at least until we get our new ones."

We quote from the decision:

"That every common carrier by railroad while engaged in commerce between any of the several States. shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce . Giving the words 'suffering injury while he is employed by such carrier in such commerce' their natural meaning, as we think must be done, it is clear that Congress intended to confine its action to injuries occurring when the particular service in which the employe is engaged is a part of interstate commerce."

If the words, "while he is employed by such carrier in any commerce being handled by such carrier" had been used instead of the words "while he is employed by such carrier in such commerce," the act would have read so as to have carried out the real intent and purpose of Congress in its enactment, viz., to afford protection to employes on all roads engaging in interstate commerce, whether handling interstate or intrastate commerce, for the court in its decision acknowledges the power of Congress to make interstate railroads liable to employes while engaged in handling intrastate commerce on such roads, as is clear from the following words:

"Considering the status of the railroad as a highway for both interstate and intrastate commerce, the interdependence of the two classes of traffic in point of movement and safety, the practical difficulty in separating or dividing the general work of the switching crew, and the nature and extent of the power confided to Congress by the commerce clause of the Constitution, we entertain no doubt that the liability of the carrier for injuries suffered by a member of the crew in the course of its general work was subject to regulation by Congress, whether the particular service being performed at the time of the injury, isolatedly considered, was in interstate or intrastate commerce."

Thus as Congress has the power to make an interstate railroad company liable to an injured employe while such employe is engaged in handling intrastate commerce on such road, it would seem as though it would be a simple matter to amend the Employers' Liability Law so that in this particular it would be all that Congress originally intended that it should be.

This decision places upon an injured employe in train or yard service, or in case of his death on his next of kin, the burden of proving that the car by which his injury was caused, or in case of engine crews, that at least one of the cars attached to their engine at the time the injury was sustained, was being used in interstate traffic, or that the work that was being done at the time was "interstate," and this means that until amended-and it should be amended at the earliest possible moment-the Federal Employers' Liability Act will operate in giving relief to injured railroad employes or the dependents of those killed in the performance of their duties as such, in not more than one-half of the cases to which it was originally intended to apply. In view of the difficulty that an injured employe, or if his injuries prove fatal, his widow, children or other relatives, would experience in presenting such proof and of the great number of cars ordinarily handled by enginemen, trainmen and switchmen that are not loaded with interstate freight, it is safe to say that nearly fifty per cent of such employes are by this decision deprived of the benefits of the act.

The second decision was in the case of the Seaboard Air Line Railway vs. James T. Horton. This case was appealed on error to the Supreme Court of the State of North Carolina. The action was brought under the Federal Employers' Liability Act of April 22, 1908, as amended April 5, 1910. James

T. Horton was a locomotive engineer in the service of the Seaboard Air Line Co. The injury for which he sought damages was caused by the bursting of a water glass which he declared was without a proper guard. His testimony was to the effect that during his first trip on the engine on which the accident occurred he noticed that the water glass was without a guard, that next day he reported it to the roundhouse foreman who said that there were no guards in stock, that it would be necessary to send a distance for one but that this he would do, that he (Horton) in the meantime should run his engine without a water glass guard, and that about a week later before the guard was placed on the water glass the glass exploded and flying fragments struck him' in the face, causing the injuries upon which he based his claim for damages.

The company's evidence was to the effect that when the engine was placed in Mr. Horton's charge the water glass was in good condition with guard glass in place, that the gauge cocks were likewise in good working order, that it was the duty of a locomotive engineer to inspect his engine and know that it was in proper order before taking it out, and if not in proper order to make a written report to the roundhouse foreman specifying the defects, that if anything should happen to the water glass it was the engineer's duty to close the valves so as to exclude the steam pressure from it and use the guage cocks, and that these were sufficient for the purpose, also that Engineer Horton had made repeated reports in writing of the work needed on the engine between his first trip and time of his injury, but did not mention the water glass or the absence of the guard. The fireman testified that when Mr. Horton first took charge of the engine the water glass had the shield or guard on it, but that it was so smoky that he, the fireman, in the presence and at the request of the engineer removed the guard in order to clean it and that in the presence of the plaintiff (Engineer Horton) it became broken. The roundhouse foreman specifically denied that Engineer Horton had complained of the absence of the water glass guard or that he, the foreman, had promised to repair the trouble. The case was submitted to the jury upon three issues, to which responses were made as follows:

(1) Was plaintiff injured by defendant's negligence?

Answer-Yes.

(2) If so, did plaintiff assume the risk of injury? Answer-No.

(3) Did plaintiff by his own negligence contribute to his injury? Answer-Yes.

The jury also returned a verdict awarding substantial damages to the plaintiff and upon appeal the judgment was affirmed by the Supreme Court of the State and the case was later appealed to the United States Supreme Court, which tribunal reversed the decision of the North Carolina Courts on the ground that the charge of the trial judge was based on the statutes of North Carolina instead of on the Federal Law-that the judge did not make the law in the case clear to the jury.

We quote from the decision:

Upon the issue of defendant's negligence, the trial court charged the jury as follows: "It is the duty of the defendant to provide a reasonably safe place for the plaintiff to work, and to furnish him with reasonably safe appliances with which to do his work." And in various other forms the notion was expressed that the duty of defendant was absolute with respect to the safety of the place of work and of the appliances for the work. Thus: "If you find from the evidence that it [the locomotive engine] was turned over to him without the guard, and if you further find from the evidence that the guard was a proper safety provision for the use of that

gauge and that it was unsafe without it, then the defendant did not furnish him a safe place and a safe appliance to do his work, and if it remained in that condition it was continuing negligence on the part of the defendant, and if he was injured in consequence thereof, if you so find by the greater weight of the evidence, you should answer the first issue 'Yes.'"

"In these instructions the trial judge evidently adopted the same measure of responsibility respecting the character and safe condition of the place of work, and the appliances for the doing of the work, that is prescribed by the local statute. But it is settled that since Congress, by the Act of 1908, took possession of the field of the employer's liability to employes in interstate transportation by rail, all State laws upon the subject are superseded. . . . . It was the intention of Congress to base the action upon negligence only, and to exclude responsibility of the carrier to its employes for defects and insufficiencies not attributable to negligence. The common law rule is that an employer is not a guarantor of the safety of the place of work or of the machinery and appliances of the work; the extent of its duty to its employes is to see that ordinary care and prudence are exercised, to the end that the place in which the work is to be performed and the tools and appliances of the work may be safe for the workmen. To hold that under the statute the railroad company is liable for the injury or death of an employe resulting from any defect or insufficiency in its cars, engines, appliances, etc., however caused, is to take from the Act the words 'due to its negligence.' The plain effect of these words is to condition the liability upon negligence and had there been doubt before as to the common law rule, certainly the Act now limits the responsibility of the company as indicated. The instructions of the trial judge to the jury above quoted imposed upon the employer an absolute responsibility for the safe condition of the appliances of the work, inslead of limiting the responsibility to the exercise of reasonable care. In effect, the jury was instructed that the absence of the guard glass was conclusive evidence of defendant's negligence. In this there was error."

Thus are revivified the old common law "assumption of risk," "fellow servant" and "contributory negligence" doctrines that we had believed dead or nearly so. The common law from which in these particulars we have been so long trying to get away, is quoted in the above interpretation to demonstrate that an employer is not a guarantor of the safety of the place of work, or the machinery and appliances of the work-"the extent of its duty to its employes," being "to see that ordinary care and prudence are exercised," etc. As a result of this decision rights that were believed to have been possessed by every employe of railroads engaged in interstate commerce are annulled in quite a large proportion of death and disability cases occurring on such railroads.

Continuing the decision says:

The questions more particularly discussed, however, and upon which the decision seems to have turned in the Supreme Court of North Carolina, pertain to the issues of assumption of risk and contributory negligence. By Section 3 of the Act of 1908 it is declared that "The fact that the employe may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe: Provided, that no such employe who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe." And by Section 4, "Such employe shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe."

By the phrase "any statute enacted for the safety of employes," Congress evidently intended Federal statutes, such as the Safety Appliance Acts, (27 Stat. 531, ch. 196; 32 Stat. 943, ch. 976; 36 Stat. 298, ch. 160; Id. 913, ch. 103;) and the Hours of Service Act (34 Stat. 1415, ch. 2939). For it is not to be conceived that, in enacting a general law for establishing and enforcing the responsibility of common carriers by railroad to their employes in interstate commerce, Congress intended to permit the legislatures of the several States to determine the effect of contributory negligence and assumption of risk, by enacting statutes for the safety of employes, since this would in effect relegate to State control two of the essential factors that determine the responsibility of the employer.

The foregoing evidently determines that damages can be secured under the Federal Employers' Liability Law in the case of such accidents only as constitute a violation of the safety appliance acts and the hours of service law.

The decision continues:

It seems to us that Section 4, in eliminating the defense of assumption of risk in the cases indicated, quite plainly evidences the legislative intent that in all other cases such assumption shall have its former effect as a complete bar to the action. And, taking Sections 3 and 4 together, there is no doubt that Congress recognized the distinction between contributory negligence and assumption of risk; for, while it is declared that neither of these shall avail the carrier in cases where the violation of a statute has contributed to the injury or death of the employe, there is, with respect to cases not in this category, a limitation upon the effect that is to be given to contributory negligence, while no corresponding limitation is imposed upon the defense of assumption of risk-perhaps none was deemed feasible.

The distinction, although simple, is sometimes overlooked. Contributory negligence involves the notion of some fault or breach of duty on the part of the employe, 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 employes 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 employe. The risks may be present, notwithstanding the exercise of all reasonable care on his part. Some employments are necessarily fraught with danger to the workman-danger that must be and is confronted in the line of his duty. Such dangers as are normally and necessarily incident to the occupation are presumably taken into the account in fixing the rate of wages. And a workman of mature years is taken to assume risks of this sort, whether he is actually aware of them or not. But risks of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These the employe is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unless defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them. These distinctions have been recognized and applied in numerous decisions of this court: Choctaw, Oklahoma, etc., R. Co. vs. McDade, 191 U. S. 64, 68; Schlemmer vs. Buffalo, etc., Ry. Co., 220 U. S. 590, 596; Tex. & Pac. Ry. Co. vs. Harvey, 228 U. S. 319, 321; Gila Valley Ry. Co. vs. Hall, 232 U. S. 94, 102, and cases cited."

Thus in the event of a defect existing in a locomotive or car which is "obvious" enough for "an ordinarily prudent person" to have observed, even although such “ordinarily prudent person" may not have observed it and may have become crippled for life or injured so that death ensues because of it, such "ordinarily prudent person," if an employe of the company operating such car or locomotive, whose duties required him to work with such defective car or locomotive, will be held as having assumed the risk, whether or not he was conscious of this defect, and it will not be necessary for the company to prove that he was not conscious of it-so says the U. S. Supreme Courtand the assumption of risk on the part of such employe, unconscious though he may be of these defects, all hinges upon the extent of the "obviousiness" of the defect, and if it is for a Federal judge to decide the said "obviousness" it is a safe bet that the "obviousness" will be so "obvious" that assumption of risk will be established beyond the possibility of recovery of damages by the injured employe, or by his dependents, in case of his death.

We quote from the decision, Farwell vs. The Boston and Worcester Railroad Company, Massachusetts, 1842:

"He who engages in the employment of another for the performance of specified services for compensation takes upon himself the natural and ordinary risks and

perils incident to the performance of such services, and in legal presumption the compensation is adjusted accordingly."

The language of this antiquated decision of the Massachusetts court of 1842, and that of the U. S. Supreme Court of 1914, which above we have run in italics, is so similar as to strongly suggest the modernizing of the latter institution, or at least that some effort be made to bring it to a realization of the changes that have taken place in conditions to which these decisions apply, since this decision of the Massachusetts court was rendered.

The decision continues:

"When the employe does know of the defect, and appreciates the risk that is attributable to it, then, if he continue in the employment, without objection, or without obtaining from the employer or his representative, an assurance that the defect will be remedied, the employe assumes the risk even though it arise out of the master's breach of duty.”

Thus this august body gives the employe the choice of quitting his job or taking strong chances on being crippled or killed, without any hope that he or those dependant upon him will receive any compensation in the event of his injury or death as a result of such defect. It would be interesting to know if this learned body realizes that these railroad men must work for a living, and that the necessity for working is so great, particularly in the case of men having others dependant upon them, that there is no choice in the matter of assuming risks under the circumstances above set forth, and if the said learned body realizes this, then wherein is the justice of such a decision or the logic or the reasoning from which it arises.

Continuing, the decision says:

"If, however, there be a promise of reparation, then during such time as may be reasonably required for its performance, or until the particular time specified for its performance, the employe relying on the promise does not assume the risk unless at least the danger be so imminent that no ordinarily prudent man under the circumstances would rely upon such promise."

In the light of these principles, the rulings of the trial court in the case at bar must be considered.

Defendant specifically requested an instruction that plaintiff's right to recover damages was to be determined by the provisions of the Federal act, and that "If you find by a preponderance of evidence that the water glass on the engine on which plaintiff was employed was not provided with a guard glass, and the condition of the glass was open and obvious and was fully known to plaintiff and he continued to use such water glass with such knowledge, and without objection, and that he knew the risk incident thereto, then the court charges you that the plaintiff voluntarily assumed the risk incident to such use, and you will answer the second issue 'Yes.'" The court gave this instruction as applicable to the issue of contributory negligence, and instead of the words "then the court charges you that the plaintiff voluntarily assumed the risk incident to such use, and you will answer the second issue 'Yes,' ," used the words, "then the court charges you that the plaintiff was guilty of contributory negligence, and you will answer the third issue 'Yes.'" To the refusal to give the instruction as requested, and the modification of it, defendant excepted.

The trial court evidently deemed, as did the State Supreme Court, that the topic of assumption of risk, with reference to the circumstances of the case, was sufficiently and properly covered by an instruction actually given as follows: after stating in general terms that "A man assumes the risk, when he takes employment, incident to the class of work which he is to perform," but that "He does not assume the risk incident to the negligence of his employer in providing machinery and appliances with which he has to work," the court proceeded as follows:

"On the other hand the employer has the right to assume that his employe will go about the work in a reasonably safe way, and give due regard to the machinery and appliances which are in his hands and under his control, and if you should find from the evidence by its greater weight, because the burden in this instance is on the de fendant, that the plaintiff knew of the absence of the guard or shield to the water gauge and failed to give notice to the defendant or to the agent whose duty it was to furnish the water gauge and appliance, and he continued to use it without giving that notice, it being furnished to him in a safe condition, then he assumed the risk incident