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of all seizures on land or waters not within admiralty and maratime jurisdiction; of all prizes brought into the United States; and of all proceedings for the condemnation of property taken as prize."

"Sec. 2. That clause three of section two hundred and fifty-six of the Judicial Code is hereby amended to read as follows:

"Third. Of all civil causes of admiralty and maratime jurisdiction, saving to suitors in all cases the right of a common law remedy where the common law is competent to give it, and claimants the rights and remedies under the workmen's compensation law of any State."

It is now proposed to extend the benefits of workmen's compensation to injured railroad men by the following Act:

AN ACT

"To amend an act approved the twenty-second day of April, one thousand nine hundred and eight, entitled 'An Act relating to the liability of common carriers by railroad to their employes in certain cases.'

"Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the act approved the twenty-second day of April, one thousand nine hundred and eight, entitled 'An Act relating to the liability of common carriers by railroads to their employes in certain cases,' is hereby amended by adding thereto the following section:

"Section 10. The provisions of this Act do not prohibit an agreement between a railroad engaged in interstate commerce and its employe, whereby the railroad agrees that its liability for injuries received by the employe, whether resulting in death or not, may, at the election of such employe, or, in case of death, at the election of the dependents of such employe, be determined under this Act or adjusted and paid under the Workmen's Compensation Law of the State of which the employe was a resident at the time of the injury.

"In every contract of hiring made after the approval of this amendment and in every contract of hiring renewed or extended by mutual consent, express or implied, after the passage of this amendment, it shall be conclusively presumed that every such railroad company has agreed with its employe as hereinabove provided unless there be, at the time of making, renewal of extension of such contracts, an express statement in writing from either party to the other that the Employer's Liability Act of Congress shall be regulative of the carrier's liability or obligation in every instance where the carrier and employe are both engaged in interstate commerce at the time of the injury or death of the employe.

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"Notice of the election of the employe or of his dependents shall be given in writing by the employe or someone in his or her behalf, or by some of the dependents or some one in their behalf, within ten days after the accident. If no notice is given as aforesaid, it shall be conclusively presumed as an election to proceed, if at all, under the Act of Congress to which this is an amendment.

"It is hereby declared as the intent of the Act to which this is an amendment, that the provisions thereof do not constitute an exclusive regulation of the carrier's obligation or of the employe's right to compensation whenever the railroad engaged in interstate commerce has agreed with its employe, as aforesaid. In the case of such an agree ment, the carrier railroad shall, and in the case of elective compensation laws, may be subject to such laws as if such carrier were engaged in intrastate commerce."

In other words, amendments were proposed to the Act of Congress of 1908, ordinarily known as the Federal Liability Act of 1908, to which I have adverted several times in this paper, and it is proposed to have this Act passed by Congress so that in the case of injury to the railroad employe he or his dependents or his representatives may, within a certain time after the injury is received, file with the railroad company a written election announcing whether he proposes to proceed under the Federal Liability Act of 1908, or if he elects to take the alternative and proceed under the Workmen's Compensation Law of his own particular state. In such an event the employe will first have the opportunity of considering whether or not in his particular case he was injured by the negligence of the fellow-employe or some of those having the management of the rolling stock of the company in charge. If he makes up his mind that his accident is merely one of the usual and ordinary risks of employment, without negligence, then he can turn to his state compensation law and proceed as his neighbor may proceed who is engaged in any of the industrial pursuits of the state.

Legislation of the foregoing character has the endorsement of the railroad organizations that seek the advancement and betterment of the men engaged in the various occupations incident to railroad operations. I believe that the objections which might be urged against this legislation that it would not be inclusive of all the States of the Union-cannot prevail inasmuch as I believe that public sentiment will soon bring about the adoption of some form of workmen's com pensation laws in all the States of the Union and that nothing will aid to this impelling force of public sentiment with greater promise of successful conclusion than to place behind this propaganda the united efforts of the more than 2,000,000 men engaged in railroad oc cupations. I would not be doing my full duty in closing this paper did I not again pay a tribute to the wide and humane policy adopted

and pursued toward this class of cases by the Pennsylvania Railroad. at the time I wrote the original opinion on these cases, I then said of this company: "Thus a great corporation engaged in interstate commerce has recognized the utility of our compensation scheme, and in a spirit of modern humanity has declined to enter technical defenses but has adopted a broad gauged plan of applying our law and at the same time protecting itself against another doubtful, uncertain, and unsatisfactory liability created by Congress."

These observations were justly merited at the time they were first written and there has been nothing in this company's method of handling these cases since the decision of the Supreme Court in the Winfield case to cause me to retract or to modify them at this time. This company has recognized the benefits of the workmen's compensation law and is affording its employes its manifold advantages. It evidently thoroughly believes that the time will shortly come when some legislation will force all railroad companies to adjust their accidents to their employes in some manner as I have outlined and is merely anticipating future events and has inaugurated a complete system in advance.

CHAIRMAN BRYANT: Mr. John C. Rose, Chief Claim Agent, Pennsylvania Railroad Company, Philadelphia, Pa., is to lead the discussion on this paper. I take pleasure in introducing Mr. Rose to you.

MR. ROSE: Ladies and gentlemen, like the last two speakers I have seen fit to put on paper the brief discourse I shall make upon this topic of Mr. Mackey's; perhaps not for the same reasons. I find it convenient, in the event of losing one's place or an interruption to be able to proceed without starting all over again. Another is that in the after-criticism I may have proof of the limits of my liability, and then that I may know when I am through and sit down.

However, I am going to make this statement and I think it is due me, that after I had been assigned a part on this program, and had prepared a quite orderly paper and carefully committed it to memory the topic was shifted by some one and I was at the last moment advised that I should respond to the address of Mr. Mackey. There is very little I can add to what Mr. Mackey has said except this: The most recent decisions of the United States Supreme Court have brought within the state compensation laws a very large percentage of railroad work-I should say on the Pennsylvania Railroad, in all occupations, perhaps not less than fifty per cent. of the employes are now subject to the state compensation law whereas it was felt originally that not more than ten per cent. came within the act. The recent case of Winters decided that question. Winters was a repairman in the roundhouse and sa locomotive was brought in from an interstate commerce run. It was there a few hours and while undergoing repairs Winters was injured. The locomotive went out into service of interstate commerce as it happened and the Supreme Court in reviewing that evidence said that when Winters was injured the locomotive was performing no service and Winters, therefore, was entitled to the benefit of the Federal Employe's Liability Law. There are others that have been decided by the District Court which are quite as strong and therefore we feel that there is a very much greater number of men subject to state law than there were before the interpretation that I referred to.

RAILROAD EMPLOYES AND WORKMEN'S COMPENSATION LAWS.

By JOHN C. ROSE, Chief Claim Agent, Pennsylvania Railroad Company, Philadelphia, Pa.

Railroad employes are subject to state compensation laws, except at such times or on such occasions as their work is in furtherance of interstate commerce, and also, possibly, when an accident occurs by reason of the failure of certain appliances specifically subject by statute to Federal regulation, such as brakes, automotic couplers, and grab irons. The Federal Employer's Liability Act, approved April 22, 1908, provides a remedy for men engaged in interstate commerce on railroads and while so definitely employed, in substitution for common law rights and statutory remedies of individual state making. It removes the defense of negligence of a fellow servant and substitutes for the defense of contributory negligence the doctrine of comparative negligence, the theory of which is that the proportion of negligence which an employe may contribute can be determined in dollars and cents in its relation to the whole damage.

To the railroad employe not engaged in interstate commerce, or rather to the person who, when injured, shall be employed in work in no wise associated with commerce between the states but in work purely state or intrastate in character, the Workmen's Compensation Law fully applies.

There is in many cases the difficulty of differentiating between state and interstate service and therein lies the chief perplexity of the railroad company, and also of its employes in the desire to comply fully with the laws to which they severally and jointly are subject. As the Supreme Court of the United States from time to time interprets the law new light is shed upon the question of jurisdiction, the problem becomes simpler, and eventually it is expected will fully be solved. But until the Supreme Court shall have decided all the mooted questions in the law there will occur these differences of opinion as to jurisdiction.

The Federal Employer's Law is an exclusive remedy and brooks no substitution in the nature of an agreement between master and servant upon another remedy which might be more agreeable to both parties; and in that interference with individual rights and personal liberties arises the difficulty which prevents the enactment of a state compensation law which shall include all citizens of the Commonwealth.

The Pennsylvania Railroad Company is paying all its employes compensation benefits provided in the State law without regard to the distinctions of employments referred to, and I can say that from the experience of nearly two years the company sees no compelling reason to change that attitude. There have been instances where employes have sought the remedy of the Federal Law quite speculatively in preference to the compensation law, but the number is small in com`parison with the thousands who have met the company fairly, and who by their conduct have shown appreciation of its generosity. The continuing of this attitude by the Company will depend almost entirely upon the future conduct of the employe. Whether, by reason of the action of employes in seeking the Federal remedy in preference to the compensation law, the company, shall feel compelled to recede from the position of paying compensation in all cases regardless of jurisdiction, is a matter very much in the control of the employes. It must be perfectly clear that the employer cannot with consistency or propriety continue to pay compensation benefits in all cases, as is now being done although there is no legal obligation for such action in more than half the number, if the employe shall exercise his choice of remedies with more freedom; or, if there shall be continued the effort to enact legislation giving to the employe a choice between trial by jury with virtually all defense removed and compensation benefits, whichever remedy appears to him as the more favorable to his interests regardless of the interests of his employer. The evil effects of such a law would eventually be felt by both employer and employe, and in its antagonism to the basic principles of compensation would bring about a return to the ancient common law conditions.

This brings us to a consideration of the causes and effects of accidents growing out of the industrial conditions of the time, and of the increase in number of accidents, which experience is entailing such a great financial burden upon the employer that it may affect future legislation on compensation, even to a modification of the schedule of benefits or the adoption of a form of remedy by amendment which shall place a penalty upon acts of gross negligence, and will also differentiate between the honest claimant and the malingerer.

Permit me now to digress just briefly on a thought that is quite in harmony with the labor question as affecting the railroads in their problem for help.

All industrial life now is seriously affected by what is termed the labor turnover. In a recent address Mr. Rea, President of the Pennsylvania Railroad Company, stated that during the year 1916 out of the 146,438 employes, which was the average per month for the year, 121,477 were new workers, and for the first eight months of the present year when the average number was 154,971, new men were repre

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