THE RIGHT TO TRIAL BY JURY CAN NOT BE OBSTRUCTED BY ONEROUS CONDITIONS.

One other point deserves notice. While the guaranty of the right to trial by jury stands, the legislature can not impair the right indirectly by imposing onerous conditions on the exercise of it. In Copp v. Henninger (55 N. H., 179) (1875) it was held that in an action against a town for damages caused by a defect in a highway the State bill of rights preserved the right to trial by jury. Article 20 of the New Hampshire bill of rights provided that unless "it has been heretofore otherwise used and practiced, the parties have a right to trial by jury." Commenting on this guaranty of right the court said, at page 194:

"If the legislature should say, 'Trial by jury is a useless, expensive, inconvenient, and bad institution; and, for the purpose of deterring parties from claiming their constitutional right to it, be it enacted that all actions shall be brought before a justice of the peace or referred by the court to an arbitrator, and any party claiming a trial by jury shall be liable to a certain penalty, to be recovered in a qui tam action,' or 'shall pay certain costs,' or 'shall have an increased judgment rendered against him unless he prevails,' or 'shall give security for costs, or debt, or judgment,' or shall in any way be subjected to any expense, liability, inconvenience, or disadvantage, before, after, or during the trial by jury, no one would suppose that a statute thus expressly declaring its unconstitutional purpose of discouraging, obstructing, hindering, and preventing the exercise of a constitutional right could be sustained. And if the statute, instead of expressly declaring its unconstitutional purpose, were silent on that subject, or if it expressly declared that its purpose was to secure and facilitate the constitutional right, its silence or its explicit averment in relation to its purpose would by no means be conclusive on that point. If the burden or disadvantage imposed could have no operation or effect except to prevent, hinder, obstruct, or discourage the exercise of the constitutional right it would operate as a penalty upon the party claiming that right and would, of course, be an infringement of the right itself."

That philanthropic intentions are behind the agitation for workmen's compensation legislation will in the courts be given no weight in judging the constitutionality of such a law. The need of constitutional scrutiny in such situations is best expressed in an extract from Webster's Niblo Garden address, Volume II, Writings and Speeches of Daniel Webster, page 207 (National Edition, Little, Brown & Co., 1903):

"Good intentions will always be pleaded for every assumption of power, but they can not justify it, even if we were sure that they existed. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intention, real or pretended. When bad intentions are boldly avowed the people will promptly take care of themselves. On the other hand, they will always be asked why they should resist or question that exercise of power which is so fair in its object, so plausible and patriotic in appearance, and which has the public good alone confessedly in view." Respectfully submitted.

HUGH L. BOND, Jr.,

General Counsel of Baltimore & Ohio Railroad Co.
A. HUNTER BOYD, Jr.,

Assistant General Attorney of Baltimore & Ohio Railroad Co.

O. W. DYNES,

Assistant General Solicitor of Chicago,
Milwaukee & St. Paul Railway Co.
WILLIAM S. JENNEY,

General Counsel of Delaware, Lackawanna & Western Railroad Co.

OCTOBER, 1911.

H L. STONE,

General Counsel of Louisville & Nashville Railroad Co.

The CHAIRMAN. Mr. Lee, we shall be pleased to hear from you now.

Γ

STATEMENT OF W. G. LEE, PRESIDENT OF THE BROTHERHOOD OF RAILROAD TRAINMEN.

Mr. LEE. The subject of compensation is comparatively a new one with us. A few years ago it did not receive a second thought from the Brotherhood of Railroad Trainmen, the largest railway organization in this country, when the statement was made to it that industry must be made to pay for its human wreckage. It was accepted as so much agreeable expression calculated to please the audience. Within the past six or seven years this subject has been so thoroughly discussed, its merits so well explained, and the justice of the demand become so apparent as to be thus expressed: "Compensation to the injured workman is a legitimate charge against the cost of manufacture, and the victim of an industrial accident, or his dependents, should receive compensation, not as an act of grace on the part of the employer, but as a right."

I wish to go on record at this time as unqualifiedly favoring a workmen's compensation act as a result of resolutions passed by the last two biennial conventions of our organizations. Just what form will be most satisfactory to both employer and employee is a question, but we believe that as far as possible litigation should stop as between the employee and employer. We believe that whatever money is disbursed by the employer should go to those disabled and not a large proportion or percentage to attorneys or others, as is the case at present.

Regardless of how the workmen's compensation act as in effect in Germany or any of the foreign countries is being considered to-day, I am sure that Congress can adopt a rule that will be fair and equitable to all concerned. I am sure that if the employees will lend their consideration and assistance, and the employers likewise, that Congress can overcome the difficulty complained of.

As stated by Mr. Carter, his principal objection seemed to be that he insisted we would be compelled to give way or stop contention under employers' liability if workmen's compensation was adopted; and he seemed to be of the opinion that we should continue as in the past to force as far possible additional safety appliances. My position is that we will have the same opportunity and the same machinery for furnishing or attempting to force additional safety appliances to be furnished with a satisfactory and suitable workmen's compensation law as we have had in the past. I believe the railway companies of this country desire to adopt almost uniformly the best possible methods for safety. I believe that the records will show that there has been a wonderful improvement in that direction in the past 15 years. We are all agreed that there can be further improvements and that the loss of life and limb can be further decreased, but we are not agreed as to what those safety devices should be. Consequently we must take advantage of experience year by year and adopt those which in the estimation of the men most interested will prove the greatest benefit or the most satisfactory. We know, of course, that every day some man comes along with some invention which, if he and his friends were allowed to say whether it was a safety device of great importance or not, the railroad companies under some proposed law might be required to adopt. We know, too, that many alleged safety devices have been put on the rip track or put out of existence

30169-12

in years gone by after it was proven conclusively that they were not real safety devices.

No class of railroad employees suffers greater than does the class I represent, because the Brotherhood of Railroad Trainmen to-day admit brakemen, baggagemen, switchmen, conductors, and train flagmen; or, in other words, all men employed in actual transportation on a railway, rear of the engine, are eligible to membership, and the organization to-day has a membership of over 117,000 of those men actually employed. The death and disability list, of course, is something appalling. Still, as I said, there is a wonderful improvement to-day as compared with a few years ago.

Personally, I entered the service in 1879. There were few, if any, such things as automatic couplers or air brakes or safety appliances of that kind or block signals at that time, which are common to-day and adopted by most railroads, so that I wish to be understood and written in the record as taking the position that, in so far as it has been possible to ascertain from the membership of the organization I represent, the sentiment has been in favor of a workman's compensation act and the doing away as far as possible with litigation.

War is regarded as the most dangerous pastime at which men can play, but when the hazards of industry are compared with it the soldier appears to be a preferred insurance risk, aside from a general engagement, and the army the only really safe place for a man to be. This is a common comparison, but so well has it served its purpose that public opinion is concentrated in a demand that the terrible loss of life and limb be compensated for and ended, as far as possible, by the intelligent and reasonable use of safety appliances. The time limit now set upon the operations of the employees stands in the way of securing any advantage from protecting devices provided for them. The devices fail in their purpose when the high speed required of the worker prevents their effective application.

The enforced payment for injury and death will lead the employer a long way out of the beaten path of unconcern for his employee and force the adoption of better safety appliances, with time to use them without loss of wages or position. The rule of industry is performance and product first; safety if there is time for it. Until the responsibility of the employer is fixed and the certainty of compensation is established, there will not be less of death and disability incident to industrial operation.

Lack of accurate statistics forces us to accept the estimates, that vary from 500,000 to 2,000,000, of killed and wounded a year as the toll levied in the name of industry. It is very clear that the enormous loss in human life, limb, and energy has never been humanely regarded for the reason that there are always men ready to step into the vacant places, and, further, because the injured and the families of the killed have, in a sort of way, accepted their mental and physical wounds as a part of the day's work and made the best of them without any great outcry against the unfairness of business that compensates for everything except human life and human misery.

I propose to tell you of a class of employees that are, in a way, pretty well known to all of you. All of you come in contact with the men I refer to, more usually, perhaps, on passenger trains, but occasionally in the yards and on freight trains. I am sure you will agree with me in saying that they are an unusually intelligent class

of men, but even at that you do not do them justice. You may not know that these men are the pick of America's workmen; that each one of them has had to pass a physical and mental examination more exacting in some respects than is required for admission to the Army or the Navy; they must be young, physically perfect, and show a fitness for the work or they are not retained in the service. Only young men are employed, the physically and mentally alert, ready to act on the emergency with sound judgment, for railroad work does

not admit mistakes.

From reports of the Interstate Commerce Commission it will be noted that one of these railroad men is reported killed about every 2 hours and 15 minutes, while 1 is injured about every 7 minutes in the performance of his duty. In 1910 there were 2,668 employees killed and 61,827 injured. The record of the killed and injured for the years 1902 to 1910, inclusive, shows 28,499 employees killed and 444,718 injured, which is a terrible record of death and disability declared to be necessary to the successful operation of American railways. The extent of partial or total disability is not known, but we can take the insurance payments of the five railroad organizations as a fair index of the number of total disabilities that resulted. They pay certain amounts for total and permanent disability-that is, for such disabilities only as prevent the injured from performing the work at which he was engaged at the time of his injury. Minor injuries are not included in this record.

The record of the Brotherhood of Railroad Trainmen shows 10 claims paid per thousand; the Order of Railway Conductors pays about 12 claims per thousand insured; the Brotherhood of Locomotive Engineers pays about 8 claims per thousand insured; the Brotherhood of Locomotive Firemen and Enginemen pays about 7 claims per thousand insured; and the Switchmen's Union pays about 15 claims per thousand insured. Fully two-thirds of these claims are for accident.

Mr. BROWN. Pardon me just a moment, Mr. Lee. What percentage of the trainmen belong to the order which you represent Mr. LEE. I would say 80 per cent of the trainmen and yardmen in the United States and Canada.

The CHAIRMAN. And Canada?

Mr. LEE. Yes; 80 per cent.

The CHAIRMAN. Does this 117,000 include the Canadians?

Mr. LEE. Yes. When I give the total membership of the organization it includes Canada, but the membership in Canada is only six thousand eight hundred and some odd.

The CHAIRMAN. So the membership here would be

Mr. LEE. Over 100,000.

The CHAIRMAN. Over 110,000.

Mr. LEE. Yes, over 110,000. I think our last report showed six thousand eight hundred and some odd members, if I am not mistaken, in Canada. Something like that, at any rate. You see there are only two large trunk lines in Canada.

The working life of a brakeman is estimated at only seven years, and the average of our conductors, brakemen, and switchmen killed and totally disabled is 32. There is a long period judged from life expectancy unprovided for.

What do the railways pay? No one knows; but it is reasonable to say that not more than 10 per cent of injuries and deaths are compensated and the average amount paid is low.

The question may be asked, why is it with the adoption of safety devices on railways the casualty rate remains about stationary, for that is the fact, as reference to Government reports will show.

Safety appliances reduce the number of casualties of some kinds, but where they save life and limb in one way they take it in another. Without safety devices it was impossible to handle equipment as it is now handled; cars were by no means as large, distances between tracks were greater, trains were shorter and lighter, the train and yard men were on their guard against sudden stops and starts, and in many other ways the hurry-up practices of to-day were not pos sible with the link and pin coupler and hand brake.

Train capacity in the past 20 years has been increased fivefold at least, cars and engines are equipped with automatic couplers and air brakes, built to take care of themselves and by their own strength do so, but unfortunately automatic equipment is not always automatic; it needs adjustment; distances between yard tracks particularly are so short that it often happens a man can not stand between them when they are occupied; it is an easy matter to get caught between tracks, knocked from ladders, or fall between cars in going over the top of the train. It is not unusual for employees to be required to handle almost a mile of cars, and communication in many instances is out of the question between men on the same train, which adds to the danger of the work; the sudden application of the air from any cause is likely to unbalance the man on the car and throw him off, usually with serious injury.

Particular stress will be given the fact that the rules in vogue on every railroad are intended for the protection of the employees, and you may feel after reviewing the casualty records that railway men are a careless lot, with little regard for their lives or limbs, that they will not obey the rules established for their safety; in short, that they court injury and death, the only apparent reason being that of disturbing their employers and mussing up the right of way with their remains. The railway employee is careless, just as you are in crossing a busy street in the face of motor and street cars, but be generous enough to credit the railway employee with the same reluctance to undergo bodily pain as ourselves; the fact that he works for a railroad company does not make him insensible to mental or physical anguish. You may ask, if this is true, Why, then, does he not observe the safety rules adopted for his protection? The answer is a short one: He does not have the time.

If those who believe the rules of the railways purporting to protect their employees from injury and death are meant to be obeyed could make one trip on local freight on almost any eastern railway or watch a switch crew at work in any large yard I am confident the experience gained would satisfy the observer that many of the rules were made for the purpose of protecting the railway companies against personal injury suits. Such investigation would undoubtedly prove that it is impossible for a train or yard man to carefully examine all cars, equipment, appliances, tracks, and other things too numerous to mention while engaged in the performance of his duty. He is, of course, admonished by the rules to carefully look into and examine all equip