STRIKES, BY METHOD OF SETTLEMENT, 1901 TO 1903-Concluded.

a By disintegration is meant the breaking up of the strike by the gradual return of the strikers. > Where two or more methods of settlement have been employed the data were reported in each case, hence these totals do not show the actual number of strikes,

In the above table, where two or more methods of settlement have been employed, the data were repeated in each case. Hence the totals do not agree with those of the actual number of strikes and persons affected as shown elsewhere. It will be observed that in each year over one-half of the strikes were settled by direct negotiation of the parties, disintegration being next in frequency in 1901 and 1902, and employment of other workmen in 1903.

LOCKOUTS.-There were 7 lockouts in 1901, 14 in 1902, and 14 in 1903. The number of persons locked out was 362 in 1901, 2,381 in 1902, and 1,021 in 1903.

DECISIONS OF COURTS AFFECTING LABOR.

[This subject, begun in Bulletin No. 2, has been continued in successive issues. All material parts of the decisions are reproduced in the words of the courts, indicated when short by quotation marks, and when long by being printed solid. In order to save space, matter needed simply by way of explanation is given in the words of the editorial reviser.]

DECISIONS UNDER STATUTORY LAW.

EMPLOYERS'

LIABILITY-RAILROAD

COMPANIES-FELLOW-SERVANTS CONSTITUTIONALITY OF STATUTE-Kane v. Erie Railroad Company, United States Circuit Court, Northern District of Ohio, Eastern Division, 128 Federal Reporter, page 474.-Thomas M. Kane, a fireman in the employment of the above-named railroad company, met his death, as was alleged, through the negligence of an engineer on another locomotive than that on which he was serving. An action was brought by his administratrix to recover damages for such death. The right to recover was based upon section 3365-22 of the Revised Statutes of Ohio, which provides that the alleged negligent engineer would be held to be the superior and not a fellow-servant of the said Kane. The claim of the railroad company was made that the petition did not state facts sufficient to constitute a cause of action and the court was asked to enter final judgment in favor of the company against the claimant. The essential portion of the statute in question will be found quoted in the remarks of Judge Wing, who announced the opinion of the court granting the request of the defendant company, and declaring that portion of the statute under consider, ation to be unconstitutional. The remarks of Judge Wing are given in full below:

My first reason for sustaining the objection to the introduction of any testimony under the petition in this case is that in the case of Baltimore and Ohio Railroad Company v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772, it was decided that a question of liability by reason of the negligent acts of a fellow-servant, and what relation constituted one a fellow-servant, was a question of general law, and that the solution of the question as to whether one person is the .ellowservant of another is not based upon the superiority of one over the other, but upon the character of labor in which they are engaged, and that, if two are working together, they may be fellow-servants, notwithstanding that one is superior in authority to the other. The statute relied upon in this case (section 3365-22 of the Revised Statutes

of Ohio), when forming the basis of an action in the courts of the State of Ohio, has read into it the ruling of the supreme court of Ohio, to the effect that the negligence of a servant superior to another servant is, with respect to the latter, by reason of such superiority, the negligence of the master. When an action is brought in the Federal courts, the statute should have read into it the decisions of the Federal courts with respect to fellowship in service. The statute does not, in terms, create liability, and only has that effect when it is assumed that negligence by a superior servant creates liability of the master to the inferior. But since, in the Federal court, negligence of a superior does not create liability of the master to the inferior, the statute creates no right of action in the Federal court.

My second reason is that, in my opinion, the third section of the act, which is section 3365-22 of the Revised Statutes, is in contravention of section 2 of article 1 of the constitution of Ohio, which provides that government is instituted for the equal protection and benefit of the people. Assuming that the section of the statutes referred to creates a liability, and consequently a right of action, it withholds that right of action by the exception found in the last two lines of the statute from general operation. The provision of the statute is:

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that every person in the employ of such company having charge or control of employees in any separate branch or department, shall be held to be the superior and not fellow-servant of employees in any other branch or department who have no power to direct or control in the branch or department in which they are employed."

We may understand the operation of this provision of the statute by applying it to the incident which gives rise to this suit. Two engines belonging to the defendant railroad company collide. This collision is occasioned by the negligence of the engineer of engine No. 1. Such engineer has control of his fireman. The collision results in the injury of both the engineer and fireman of engine No. 2. If the negligence of the engineer of engine No. 1 is attributable to his master, then there should be a right of action, on account of such negligence, in favor of both the engineer and the fireman of engine No. 2, except for the defense of fellow-servant. The right of action, however, by the statute, is allowed to the fireman, and withheld from the engineer, by a fact which has in no wise had to do with the causing of the injury. We may go further, so as to relieve the question from the level rank of the two engineers. Suppose that on engine No. 2 there is a coal passer, who, by the rules of the company, is under the charge or control of the fireman, and who has no one under his charge or control. Then a right of action for this accident would be given to the coal passer, and withheld from the fireman, by the arbitrary distinction made in the statute. Before the passage of the statute, no right of action, under similar circumstances, would have existed in favor of either the engineer, fireman, or coal passer of engine No. 2. The statute attempts to make a classification between individuals. who may have a right of action, and bases that classification upon a fact which has had nothing to do with occasioning the accident, and over which the person injured has had no control. The law does not operate to equally protect the persons injured, or liable to be injured. Although I have used the word "classification," we can not say that the legislature, in enacting this section of the statute, has made a classification. It rather has delegated to the railroad company the

right to make the classification which will serve as the criterion of its own liability, because by its rules and its acts a right of recovery for an injury can be prevented. It lies entirely within the power of a railroad company as to whether or not a servant shall have charge and control of another servant, as, we may suppose, a railroad company, for the purpose of relieving itself from liability, puts upon each of its trains a boy, who, under its rules, is in the charge and under the control of every other employee on the train. The only liability, then, of the railroad company, for a collision occasioned by the negligence of an employee on another of its trains, would be to this boy; and this, by reason of the creation of facts which are the basis of the assumed classification established by the statute. The statute might as well have read that, in the event of injury occasioned by the negligence of an employee in a separate branch or department, right of action, notwithstanding the doctrine of fellow-servant, shall exist in favor of those only whom the railroad company shall designate." For the reasons given, I hold that so much of section 3365-22, Rev. St. Ohio, as provides that "every person in the employ of such company having charge or control of employees in any separate branch or department shall be held to be the superior and not fellow-servant of employees in any other branch or department who have no power to direct or control in the branch or department in which they are employed," is unconstitutional, because its benefits are restricted to those who have no power to direct or control in the branch or department in which they are employed.

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EMPLOYERS' LIABILITY-RAILROAD COMPANIES SAFETY APPLIANCE LAW ASSUMPTION OF RISK-CONTRIBUTORY NEGLIGENCE-Denver and Rio Grande Railway Co. v. Arrighi, United States Circuit Court of Appeals, Eighth Circuit, 129 Federal Reporter, page 347.—The plaintiff, Arrighi, was a switchman in the service of the railroad company named above, and had been injured while endeavoring to couple freight cars which were not equipped with automatic couplers as directed by the act of 1893. This act provides that any employee of any interstate carrier who may be injured by any car used in interstate traffic by reason of the same not having been equipped with an automatic coupling device shall not be deemed to have assumed the risk thereby occasioned, though continuing in the service after the fact of such defective equipment has been brought to his knowledge. The circuit court of the United States for the district of Colorado had allowed damages, from which judgment the company appealed, procuring a reversal of such judgment and orders for a new trial. It appeared from the evidence that the plaintiff was a skillful workman of about eleven years' experience in railroading; that he was acquainted with the old style coupling which was in use on the cars in question, and that the movement of the engine was being directed by him, and there were no circumstances making the coupling especially difficult. He was holding the coupling link of the approaching car with his left hand and failed to remove it in time to avoid the impact so that his

hand was crushed, resulting in the loss of three fingers. The opinion of the court was announced by Judge Hook, who held that while the statute provides against the assumption of risk it did not do away with the defense of contributory negligence. The following extract from Judge Hook's opinion presents the grounds on which the conclusions are based:

Prior to the time when the act of Congress became fully operative, the employees of a railroad company subject to its provisions, engaged in coupling cars used in moving interstate traffic, but not equipped with automatic couplers, assumed the ordinary risks and hazards of that employment, and the company was not liable to them for injuries resulting therefrom. The common-law doctrine of the assumption of risk was then applicable. But a new rule is prescribed by the act. It specially provides that the employees shall no longer rest under the burden of that assumption in respect of any car used contrary to its provisions. While this is true, the railroad company is not thereby deprived of the defense of contributory negligence. With an exception, unnecessary to be noted here, the risks and dangers of an employment which at common law are assumed by the employee are not those which arise from the negligence of either party. And when the burden of those assumed risks and dangers were lifted from the employee by statutory enactment, and cast upon the railroad company, there was not transferred therewith a responsibility for the negligence of the employee himself, The rationale of the doctrine of assumption of risk is not that which supports the rule of contributory negligence. They operate differently, and are dependent upon widely different principles. It can not be assumed that by the passage of a salutary law designed for the protection of those engaged in a hazardous occupation Congress intended to offer a premium for carelessness, or to grant immunity from the consequences of negligence. The reasonable conclusion is that the defense of contributory negligence is as available to a railroad company after as before the passage of the act of Congress, although it has not complied with its requirements.

EMPLOYERS' LIABILITY-RAILROAD

COMPANIES--SAFETY

COUP

DEFECTIVE APPLIANCES-CUSTOM-ASSUMPTION OF RISK-Chicago, Milwaukee and St. Paul Railway Co. v. Voelker, United States Circuit Court of Appeals, Eighth Circuit, 129 Federal Reporter, page 522.-Emil Voelker was a switchman in the employment of the railway company, and was killed while attempting to effect a coupling between cars in the line of his employment. One of the cars to be coupled was provided with a coupler so defective that it was necessary to go entirely between the cars to adjust it for the impact, and while so occupied Voelker had been crushed by the unexpected kicking of other cars against those he wished to couple.

The circuit court of the United States for the northern district of Iowa had awarded Voelker's administratrix damages (see Bulletin of the Department of Labor No. 44, p. 165), on the ground that the defec