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liquors, as a cardriver, conductor, motorman or gripman, or in any other capacity, if fit and competent therefor. All applicants for positions. as motormen or gripmen on any street surface railroad in this State shall be subjected to a thorough examination by the officers of the corporation as to their habits, physical ability and intelligence. If this examination is satisfactory, the applicant shall be placed in the shop or power house where he can be made familiar with the power and machinery he is about to control. He shall then be placed on a car with an instructor, and when the latter is satisfied as to the applicant's. capability for the position of motorman or gripman, he shall so certify to the officers of the company, and, if appointed, the applicant shall first serve on the lines of least travel. Any violation of the provisions of this section shall be a misdemeanor.
Other laws provide for the recovery by employees on railroad corporations in case of accidents in which the injury has been due to the negligence of a fellow-employee, which laws have in many cases been held to apply to street railway corporations, even though these have not been specifically named. Thus in 1883 the Massachusetts legislature passed “an act fixing the responsibility of railroad corporations for negligently causing death of employees.” This act amended the previously existing law so that “if an employee of a railroad corporation being in the exercise of due care, is killed under such circumstances as would have entitled him to maintain an action for damages against such corporation if death had not resulted, the corporation shall be liable in the same manner and to the same extent as it would have been if the deceased had not been an employee.” This act, which was approved June 16, 1883, gave to the employee not only the right to sue when the negligence was the act of a fellow-servant, but also confirmed the right of his legal representatives to sue, even though death supervened as a result of the accident.
CONSTITUTIONALITY OF PROTECTIVE LEGISLATION.
The constitutionality of laws regulating the hours of labor of men employed on street railways has been tested at various times, but the opinion at the present time, especially in view of the decision of the United States Supreme Court in the case of Holden v. Hardy, referring to the hours of labor in the mines of Utah, seems now to uphold the constitutionality of such measures. In the year 1902 the legislature of the State of Rhode Island enacted a law limiting the number of hours of certain street railway employees to 10 per day, these 10 hours of actual work to be performed within a period of 12 consecutive hours. Thereupon the governor of the State submitted to the supreme court of the State the question as to whether the law was constitutional, with the result that the law was sustained by that body, one judge dissenting.
statute included street railways under the term railroads was, according to the court, to be based upon the language of the statute, from the context, or from the intent of the legislature. In this particular clause it was held, that as in many cases street railroads frequently used steam, that as in many cases they used a motive power capable of generating a speed greater than that of steam, that as the law was used to prevent injuries by the operation of moving trains, and as the law was reenacted at a time when street railways were in use, the wellknown conclusion was irresistible that the legislature was satisfied “ with the construction which had been placed on the meaning of this word by the courts and was willing to reenact these sections in the right of the expressed or implied definition of the word “railroad.?" The court therefore held that in obedience to the statute, an employee of a street railway company could recover for injuries inflicted upon him by reason of the negligence of a fellow-employee.
The constitutionality of the law, protecting street railway men in the matter of vestibules, was tested in the Missouri courts in the year 1901.(a) The street railway companies had urged in several cases, as, for instance, in that of the Albany Street Car Company, (') that vestibuling was dangerous to all parties, including motormen, passengers, and conductors, and several reasons were assigned as proof of the impracticability of the plan. The Missouri court, however, declared that the law of March 5, 1897, requiring a screen during winter months, “is not so indefinite as to be inoperative," that the title of the act did not insufficiently indicate the subject matter, that the act “is not special legislation,” that the fine of from $25 to $100 for each day of disobedience of the law, does not impose “cruel or unusual punishment,” that the law does not countervene or conflict with the constitutional provision that “no person shall be deprived of liberty or property without due process of law,” these being the grounds upon which the constitutionality of the measure was assailed.
a State 1. Whitaker, 60 S. W. Rep., 1068. b Street Railway Journal, March 16, 1901, pp. 349, 350.
THE STATE COOPERATIVE ACCIDENT INSURANCE FUND OF
The determination last year by the Baltimore court of common pleas of the unconstitutionality of the act entitled “ Employers and employees' cooperative insurance and liability,” passed by the Maryland legislature at its session in 1902, terminated the operation of a law which was unique in its provisions, so far as this country is concerned, while its resemblance to laws of European countries of similar intent was hardly more than suggestive. This statute extended the liability of certain classes of employers to cases where employees were injured by the negligence of a fellow-servant, and to cases where the injured employee negligently contributed to his own injury. Its main feature, however, was the establishment of an insurance fund to be paid into the hands of the State insurance commissioner and administered by him.(4)
The statute was restricted in its application to mining, quarrying, steam and street railway service, and to municipalities engaged in the construction of sewers or other excavations or physical structures.
After a reference to the existing provisions of law for the recovery of damages for injuries or for the death of an employee, the act then added the liabilities mentioned above. The next section provided that any employer or employing company might be exempt from the liabilities mentioned by making certain annual payments in monthly installments for the maintenance of an insurance fund. The amount of this installment varied with the industry, being $3 per year for each employee of a steam railroad, $1.80 per year for each employee in a mine or quarry, and 60 cents per year for each employee of a street railway or trolley road. The amounts payable by municipalities were to be fixed by the insurance commissioner. The commissioner also had plenary power to settle disputes arising in connection with the administration of this law, and to regulate from year to year the amounts of the premiums to be paid in order to maintain the fund and make the payments indicated. An amount not exceeding one half the premiums might, after notice to the employees affected, be deducted by the employer from their wages.
a For a copy of the law in full see Bulletin of the Department of Labor, No. 45, pp. 406-408.
Exemption from liability for damages for injuries to employees could also be procured by an employer or employing company on a showing, satisfactory to the insurance commissioner, that better provisions for the compensation of injured workmen were otherwise arranged for.
From the fund formed as above, the sum of $1,000 was to be paid to the heirs or personal representatives of any employee whose death resulted from accident in the course of his employment, after the commissioner had satisfied himself that the case was within the provisions of this law. No provision was made for nonfatal injuries, nor for a review by any court of the action of the commissioner.
The law was in operation from July, 1902, to April, 1904, when it was declared unconstitutional.(") Immediately following this action by the court, the insurance commissioner notified the companies which had been making payments to the fund that he could receive no further sums on that account, and presented a report to the governor of the State, in which he said: “This law was in operation for nearly two years. We received $5,313.90, and paid five death losses amounting to $5,000, and the entire expense was only $300, about 6 per cent of the amount paid in. It can be readily seen what an advantage it had over ordinary insurance companies, where the expenses are scarcely ever below 50 per cent of the premium receipts.” In another part of the report he says, “I believe the law was a good one, both for the company and the employee."
But 9 companies availed themselves of the provisions of the law, as shown in the following table, which presents the number of months during which each company contributed, the average number of employees for the same period, and the total payments made:
NUMBER OF MONTIIS CONTRIBUTIONS WERE MADE, AVERAGE NUMBER OF EMPLOYEES,
AND TOTAL PAYMENTS MADE BY EACH COMPANY.
a Delta is on the State line, the quarries being on the Maryland side, while the post-office of the village is in Pennsylvanin.
From this table it appears that fof the companies were contributors during the entire 22 months of the existence of the fund. Of the
a For a presentation of the case see pp. 689 and 690, below.
others, 2 began payments in the second month, 1 in the third, 1 in the seventh, and 1 in the eighth. But 1 company, the Cumberland and Westernport Electric Railway Company, withdrew from the plan, it making its last payment in August, 1903.
In view of the discretionary power conferred upon the commissioner to regulate rates, it may be of interest to note that the statutory rate of 5 cents per month for street railway employees and of 15 cents per month for quarry employees maintained the fund in the face of the various benefit payments made as follows:
STATEMENT OF TIIE INSURANCE FUND BEFORE AND AFTER PAYMENT OF BENEFITS.
No note is taken of administrative expenses, as they are reported only in gross. Obviously, however, the fund was not at any time exbausted, as the total cost of administration was but $300. The remainder here shown is $2 less than the amount reported elsewhere, but is in agreement with the detailed statement of contributions.
Of the amounts distributed, $3,000 were paid to heirs of employees of the United Railways and Electric Company, the largest contributor to the fund. It will be observed that these payments practically offset the amount paid in by that company. The company reports that it made the entire payment out of its own funds, making no deduction from the wages of its employees, as under the law it might have done to the extent of one-half the payments. The practice of the other companies in this regard is not reported.
In the two other cases of benefits paid quarrymen were the beneficiaries. One of these was an employee of the Peach Bottom Slate Company, one of the smaller companies in the fund. Of the other nothing further can be reported.
The liability of the employing companies in the above cases, under other laws than the one in accordance with which the benefits were paid, can not, of course, be positively determined apart from legal proceedings, which were not had in these cases. An official of the United Railways and Electric Company stated, however, that in his opinion the company would have probably been successful in defending the suits in two of the cases on the ground that the injured employees were guilty of contributory negligence, while in the third case the plaintiff's would have probably won their suit. In the case of the