cases on employer's liability acts. These latter cases held that the English act (that of 1880) and the substantially similar Massachusetts law of 1887 (neither of which created or imposed any new statutory duty on the master) were intended to modify the fellow servant doctrine, and not to affect in any way the doctrine of assumed risk. In the Knisley case the defendant refused or neglected to obey the mandatory provision of the Factory act imposing the specific duty upon him of placing guards on cogwheels of his machinery. Owing to the absence of these guards, and apparently not by reason of any personal carelessness, the plaintiff's arm was drawn into the cogs and so crushed and torn that it had to be amputated at the shoulder-a peculiarly distressing case. In this case the plaintiff was a young woman of full age. The New York court recognizes no difference in the rule by reason of infancy, however.

The question of the assumption of statutory risks has been adjudicated upon in Illinois in several cases, but the exact question of public policy involved is apparently still undecided by its highest court. The decisions would make the final adoption of the English rule more probable. It has been held in Indiana, Missouri, and Illinois that where there is a general public ordinance regulating the speed of railway trains passing near or through cities, enacted for the benefit of the public, an employee of a railroad who continues in its employment with knowledge of the violation of the ordinance (without contributing actively to its violation) does not assume the risk of injury, nor is he by reason of his employment deprived of any of the benefits of the ordinance to which other citizens are entitled.

In Greenlee vs. Southern Railway Co. the plaintiff was injured by reason of the failure of the railroad company defendant to comply with the federal law requiring self couplers and air brakes to be placed on all freight and passenger cars by January 1, 1898. The plaintiff's injuries were due to a defective brake. The plaintiff's recovery, at trial, was affirmed on appeal, the court using the following language:

"Six years ago this court said it would soon be negligence per se whenever an action happened for lack of a self coupler.

Congress has enacted that self couplers should be used. For this lack this plaintiff was injured. It is true the defendant replies that the plaintiff remained in its service knowing it did not have self couplers. If that were a defense, no railroad company would ever be liable for failure to put in life saving devices, and the need of bread would force employees to continue the annual sacrifice of thousands of men. But this is not the doctrine of assumption of risk. That is a more reasonable doctrine, and is merely that when a particular machine is defective or injured, and the employee, knowing it, continues to use it, he assumes the risk. That doctrine has no application where the law requires the adoption of new devices to save life or limb (as self couplers), and the employee, either ignorant of that fact or expecting daily compliance with the law, continues in service with the appliances formerly in use."

Two cases illustrative of the diversity of opinion among the courts on this matter of public policy involve statutes requiring railroad companies to fill or block frogs and guard rails on their tracks. In both cases the actions were for recovery of damages for personal injuries from such unblocked frogs received by employees who continued in the railroad service with knowledge that the condition of the rails was contrary to the statute and dangerous. In one decided by the United States Circuit court of appeals, in the opinion of Judge Taft, the learned justice remarks: "In the absence of statute, and upon common law principles, we have no doubt that in this case the plaintiff would be held to have assumed the risk of the absence of blocks in guard rails and switches by defendant." The court held, however, that the plaintiff's rights under the statute could not be waived by continuance:

The only ground for passing such a statute is found in the inequality of terms upon which the railway company and its servants deal in regard to the dangers of their employment. The manifest legislative purpose was to protect the servant by positive law, because he had not previously shown himself capable of protecting himself by contract;

and it would entirely defeat this purpose thus to permit the servant to contract the master out of the statute.

In the other case, the Supreme court of Maine held that the continuing servant assumed the risk of injury from the railway's refusal to obey the law requiring blocked frogs and guard rails.

In Mississippi the state constitution provides (Art. VII., sec. 193):

Knowledge by any employee injured of the defective or unsafe character of any machinery, ways, or appliances shall be no defense to an action for injuries caused thereby, except as to conductors or engineers in charge of dangerous or unsafe cars or engines voluntarily operated by them.

A similar statutory provision appears in the Revised Statutes of Ontario, chap. 160, sec. 6:

Provided, however, that such workman shall not reason only of his continuing in the employment of the employer with knowledge of the defect negligence act or omission which caused his injury be deemed to have voluntarily incurred the risk of the injury.

If the writer may venture a personal opinion, it is that the English rule, in cases where no violation of statute is involved, is fairer, leaving it for the jury to say, from the facts in evidence in a given case, whether the workman who continues to use machinery he knows to be defective should be held to have assumed the risk of injury. It has the merit of flexibility, and is more calculated to meet the requirements of substantial justice in the varying facts of different cases.

As to the violation of regulative statutes framed to secure the safety of the employee, the situation would seem to be simpler. If the conditions of an employment are such as to make such legislation necessary to preserve the lives of employees, such resulting legislation should be supported by the courts instead of being nullified and rendered absurd.

The attitude of the courts toward factory legislation is of importance to others besides the injured litigant. While it has been said on good authority that the courts in the great manufacturing states are desirous of diminishing the constantly increasing flood of negligence litigation by discouraging the

injured servant from taking his troubles to court, the public, and particularly the working classes, are interested in obtaining the same result by diminishing the number of accidents from which alone such lawsuits can originate. Any perceptible diminution in the number of accidents can scarcely be expected when the responsibility of the master for his own negligence to his workmen is nominal and not actual. The prospect of verdicts for large damages actually sustained on appeal in actions brought against him by his injured employees would be a most healthful stimulus to vigilance by the master in performing his legal duties to his men and in giving reasonable care to their safety. A reasonable modification of the assumption doctrine would, moreover, make unnecessary the greater part of the regulative statutes applying to particular trades, yearly increasing in bulk and complexity, confusing alike to lawyer and layman-in itself a consummation devoutly to be wished.

CHILD LABOR LEGISLATION.

BY FLORENCE KELLEY.

[Florence Kelley, secretary National Consumer's League since May, 1899; born Philadelphia, September 12, 1859; graduated from Cornell, 1882; writer on social and labor questions; state inspector of factories for Illinois, 1893-7 and did much to enforce the child labor law and brought about many reforms.]

Copyright 1902 by American Academy of Political and Social Science

It is most desirable that the present widespread agitation for child labor legislation may achieve permanent results of a uniform character. Such laws as now exist are alike in no two states; they are enforced differently when they are enforced at all; they are uniform only in their failure to afford adequate protection to the rising generation of the working class.

It is the aim of this paper to set forth some essential points of an effectve child labor law efficiently enforced; for whatever the local differences of industrial conditions may be, certain fundamental needs of childhood are constant and child labor legislation must ultimately be framed with regard to these.

This fact is somewhat recognized in the statutes already enacted; for all these begin with a restriction upon the age at which the child may begin to work. This minimal age has varied from ten to fifteen, differing in some states for boys and for girls, while the statutes prescribing it have been weakened in some states by exemptions and strengthened in others by educational requirements. The fundamental provision of all child labor legislation has always been the prohibition of work before a specified birthday.

Akin to the restriction of the age of employment is the restriction of the hours of work. The former secures to the child a fixed modicum of childhood; the latter assures to the adolescent certain leisure, all too little, for growth and development.

No one law can be selected as containing all the provisions needed or even as containing all the provisions now in