NOTES OF IMPORTANT DECISIONS.

CONVICTS-RIGHT OF ACTION AGAINST LESSEE FOR SERVICES RENDERED.-In Anderson v. Salant, 96 Atl. 425, the Supreme Court of Rhode Island goes into a tediously elaborate discussion of the status of a slave as meant by the Thirteenth Amendment and the Rhode Island Constitution, with the result of concluding that a convict's position so far as his right of contract and of inheritance and to his being a chattel of an owner, bears little or no analogy thereto. This being determined it is then considered whether he was so absolutely under the dominion of one to whom he is farmed out under statute providing therefor as to give him right of action for services rendered the State's lessee. By like reasoning, by which the court arrives at the conclusion that a convict was not to be deemed a slave, it reaches the result, that these statutes have been recognized for so many years, that there is a very strong presumption of their validity.

It is said: "The condition of slavery sought to be established is a synthetic slavery made up from the incidents inherent in the condition of being a convict lawfully under sentence and the fact that said convict was compelled to work pursuant to the contract made under the statute. * * * The plaintiff's inability to dispose of his person and property and services is in no way due to the contract of which he complains, but is an incident of his condition as a convict. ** As we have seen, it is not claimed that to cause a prisoner to work for the State is a violation of the constitutional provision forbidding slavery, but that to cause him to work upon materials of another than the State, under a contract between such other person and the State, in the prison of the State, under the control of the State, the State receiving compensation for said work and the convict not receiving compensation therefor, results in the transformation of the labor which is imposed upon the convict as a part of his sentence, into that of a slave and constitutes a condition of slavery. If this contention is sound, it follows that while the State may compel the convict to work for the State upon the materials of the State in its workshops situated in the prison, the State must own the materials upon which the work is done or the convict cannot lawfully be compelled to work."

We have used a lengthy extract to show how very fine spun is the contention ad

vanced. It is not asserted that the convict's punishment is in any way more severe or in any regard added to by making him work for another than the State, and it seems to us that a lessee would be deemed pro hac vice an officer of the State and his anticipated profit to represent a definite salary.

But independently of this hair splitting ratiocination, the constitutional provisions referred to can not be supposed to extend to statutes of duration long previous to their adoption.

WORKMEN'S COMPENSATION ACT-RECOVERY OF EMPLOYEE IN INTERSTATE COMMERCE, NO NEGLIGENCE BEING CLAIMED.-In 82 Cent. L. J. 43, and 63, there was discussed the applicability of workmen's compensation acts under any circumstances to a case of injury suffered by an employee engaged in interstate commerce, the two cases therein referred to holding that the Federal Employers' Liability Act left the State law to operate in non-negligence cases. We indicated our dissent from their conclusion.

In Winfield v. Erie R. Co., 96 Atl. 394, New Jersey Court of Errors appears to go even further than did the cases we considered.

Thus, in the Winfield case there was writ of error to the trial court to review a finding by it that an employee was not killed in the course of an interstate employment and the Supreme Court held he was and set aside a judgment in favor of plaintiff.

The Court of Errors and Appeals in reversing the Supreme Court, said: "We do not find it necessary to determine whether appellant's decedent came to his death while employed by the defendant in interstate commerce, as the Supreme Court held, or while employed in intrastate commerce, as was found by the Court of Common Pleas, but will assume for the purpose of deciding this appeal that the conclusion of the Supreme Court * justified by the facts proved. The question then is whether the widow of an employee of a common carrier by railroad which is engaged in interstate commerce, who comes to his death while he is employed by such carrier in such commerce, must in all cases bring her action to recover compensation under the Federal Employers' Liability Act. This ques

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tion, we think, must be answered in the negative. *** It cannot be that when the federal act affords no remedy, the widow cannot enforce a remedy which is given her by a State

statute." But it can be if the federal statute covers the whole question of liability.

The court further says that: "What the appellant in the present proceeding seeks to enforce against the defendant company is not a liability arising out of its negligence, but a contractual obligation created by Section 2 of our Workmen's Compensation Act with the consent of both employer and employee and which exists although no negligence can be imputed to the employer. And this we consider she is entitled to do in the absence of any averment by her or any proof offered, or any admission made by defendant company showing that the death of her decedent resulted from defendant's negligence and thus created a liability against it under the federal eral statute."

It seems a mere juggling of words to say there is not a liability but only a contractual obligation. If the contractual obligation takes in injury from tort by employer, it certainly is excluded by the federal act. And if it intended to cover the whole field of accident for which an employer in interstate commerce is liable, injury not thus arising would also be excluded.

As we urged in 82 Cent. L. J. 43, the real question is whether the federal act intended that no other burden should be put upon a carrier in interstate commerce, and, therefore, on commerce itself, than was imposed for injury occurring as in that act stated. It could have said the carrier should not be liable at all, but employees should take all risks. Did it not impliedly say they did this when the carrier was not negligent at all? The act gives a remedy to a class. Can the class have a remedy in other law?

FALSE STATEMENT IN PACKAGE REGARDING CURATIVE EFFECTS.-The term "misbranded" is by statute made to embrace, as to drugs shipped in interstate commerce, a case where any "package or label shall bear or contain any statement, design or device regarding the curative or therapeutic effect of such article or any of the ingredients or substances contained therein, which is false and fraudulent." This statute was held to embrace circulars in packages containing drugs, where false and fraudulent, and as so construed it came within the power of Congress under the commerce clause. Seven Cases v. United States, 36 Sup. Ct. 190.

This ruling is predicated upon the principle

that there was no encroachment upon the reserved power of the states. The court said: "The objection is not to be distinguished in substance from that which was overruled in sustaining the White Slave Act. Hoke v. United States, 227 U. S. 308. There, after stating that "if the facility of interstate transportation can be denied in the case of lotteries, obscene literature, diseased cattle and persons and impure food and drugs, the like facility could be taken away from 'the systematic enticement of and the enslavement in prostitution and debauchery of women,' the court conIcluded with the reassertion of the simple principle that Congress is not to be denied the exercise of its constitutional authority over interstate commerce and its power to adopt not only means necessary but convenient to its exercise, because these means may have the quality of police regulations."

It is hard to see how it is necessary or even convenient to the exercise of the right to exclude misbranded drugs from interstate commerce, to declare further that no circulars shall accompany them of an untruthful nature, nor is it very apparent that if such circulars are of the nature of misbranding, that they should be both false and fraudulent, that is to say, intentionally false. For them to be false should be misbranding whether done innocently or fraudulently.

This goes to show that the falling under police power is the gist of the statute and not that police power incidentally comes in. But it is also held that the inclusion of the word "fraudulent" was in effect necessary to avoid the guaranty by the Fifth Amendment.

It is said: "Congress deliberately excluded the field where there are honest differences of opinion between schools and practitioners. It was plainly to leave no doubt upon this point that the words 'false and fraudulent' were used. This phrase must be taken with its accepted legal meaning and thus it must be found that the statement contained in the package was put there to accompany the goods with actual intent to deceive." Here we get back to what would ordinarily be "the reserved power of the states," and how anyone could see that it only incidentally comes in, and is not the primary purpose of the statute, we do not understand. There is certainly very great temptation in Congress to help out police power, in every way it is more able to do this than states are, but the sustaining of the granting of such aid as lawful very greatly resembles dialectical gymnastics.

SOME OBSERVATIONS ON THE APPLICATION OF THE DOCTRINE OF THE LAST CLEAR CHANCE.

The application by the various courts of the doctrine of the last clear chance, to the particular facts presented by each case, has caused some confusion as to the real meaning of this principle. As a consequence it is difficult to reconcile all of the cases on the subject by the application of any fixed rule.

No consideration of this doctrine can be rightly entered into without an examination of the rule of contributory negligence. The rule that contributory negligence will defeat recovery in negligence cases appears to have been first distinctly announced in the case of Butterfield v. Forrester,' though not then as a novel doctrine. There the defendant, for the purpose of making some repairs to his house, which was close by the roadside, had put up a pole across this part of the road, a free passage being left by another branch or street in the same direction. The plaintiff, about candle light, but while there was yet light enough left to discern the obstruction at 100 yards distance, while riding very rapidly, rode against the pole and was thrown and badly hurt. The Court directed a jury, that "if a person riding with reasonable and ordinary care could

of the plaintiff which in any degree contributed to an accident was the proximate cause thereof, and constituted contributory negligence which barred recovery. It was further held in some cases that plaintiff must not only prove the negligence of the defendant, but must also affirmatively disprove any negligence on his part. Carried to such extremes, the doctrine became the subject of severe condemnation as a harsh and unjust rule, as it left the plaintiff to bear all the damages, although he may have been but remotely, and consequently, but slightly in fault.

The existence of these conditions, and especially in cases where human life was concerned, created a need for a more just and humane rule, and accounts for the prompt and general approval given to the doctrine now generally known as the "Last Clear Chance", or as it is sometimes referred to as the rule of antecedent and subsequent negligence.

The case of Davies v. Mann3 is generally considered to be the case from which the above doctrine originated. In that case the owner of a donkey negligently turned it out upon the highway with its feet fettered, and the animal was killed by a party who was carelessly driving along the highway and ran into it. A recovery was allowed notwithstanding the negligence of the owner. In that case Lord Abinger, C. B., said: "The defendant has not denied that the ass was

without ordinary care, they should find a verdict for the defendant." This charge was sustained on appeal.2

This doctrine, thus first enunciated in a most reasonable form was soon carried beyond what could ever have been contemplated by the original case. At length some courts held that any negligence on the part

(1) Butterfield v. Forrester, 11 East 60, 10 Revised Rep. 433.

(2) For definitions of contributory negligence see 29 Cyc, 505; 1 Sherman & Redf, Neg. (6th ed.) sec. 61. 1 Thomp. Neg. 2d ed. sec. 169.

must asume it to have been lawfully there. But even were it otherwise, it would have made no difference for as the defendant might, by proper care have avoided injuring the animal, and did not, he is liable for the consequences of his negligence though the animal might have been improperly there." And in the same case, Parke, B. says; "Although the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace

(3) Davies v. Mann, 10 Mees & W. 546, 12 L. J. Exch. N. S.; 10, 6 Jur. 954, 19 Eng. Rul. Cas. 190.

as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public highway or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road."

The doctrine of the above case has been stated to be that "the party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible for it." Another legal writer in describing the rule as set out in the above case says, "It means only that negligence upon the part of plaintiff which bars his recovery from the defendant must have been a proximate cause of the injury, and that it is not a proximate, but only a remote cause of the injury when the defendant notwithstanding the plaintiff's negligence, might, by the exercise of ordinary care and skill, have avoided the doing of the injury."

Mr. Beach, after considering the subject at some length, is of the opinion, that the following principles cover every case in which a correct application has been made of the rule of Davies v. Mann:" (a) When the plaintiff's negligence is only a remote cause of the injury he sustains, it is not contributory negligence, and he may recover; and (b) contributory negligence is no bar to an action for willful injury."

The clear modern doctrine is that, in order to constitute such negligence as will bar a recovery of damages, these two elements must in every case concur: (a) A want of ordinary care on the part of the plaintiff, or, where the action is for damages, resulting in death, a want of ordinary care on the part of the person killed; (b) a proximate connection between this want of ordinary care and the injury complained of. When this definition is kept in mind it will be seen that the rule as asserted in Davies v. Mann, i. e., of the last clear

(4) (5) Pattersons Railway Accident Law, 55. (6) Beach, Contrib. Neg., sec 28. See also Sherman & Redf. Neg., sec. 99; 66 Cent. L. J. 215; 79 Cent. L. J. 352.

Law Quarterly Review p. 507.

chance, is not in conflict with the rule asserted first in Butterfield v. Forrester, i. e., of contributory negligence, but that the rule of the former case is rather a just extension of the latter's underlying principles.

Nor is the doctrine of the last clear chance, an exception to the rule that contributory negligence bars a recovery, unless the injury is wanton or willfully inflicted. Its proper application does not permit an injured person to recover in spite of negligence on his part contributing to the injury but it does permit a recovery notwithstanding a want of due care on the part of the plaintiff, in cases where the facts are such that it may be said that the plaintiff's want of due care was not the proximate cause of the injury. Evidence to which this rule of law is applicable does not tend to prove that the injured party used due care, but it does tend to prove that such want of due care on the part of the plaintiff was not the proximate cause of the injury, and that the injury was caused solely by the failure of the defendant to take advantage of the last clear chance of avoiding the injury. As tersely stated by one Court "it is simply a means of determining whether the plaintiff's negligence is a remote or a proximate cause of the injury."

In the application of this doctrine, it must be borne in mind that it presupposes the existence and breach of a duty on the part of the defendant; and it cannot itself be properly invoked for the purpose of raising such a duty. The determination of the question as to whether any duty exists which has been violated, logically precedes any consideration of the applicability of the doctrine of last clear chance, and is of the nature of a condition precedent to the consideration of that doctrine. If for example, A trespasser on a railroad track is struck

(7) Smith v. Norfolk, etc., R. Co. 14 N. C. 728. 19 S. E. 863, 25 L. R. A. 287; Indianapolis Trac. etc. Co. v. Croly, 54 Ind. App. 566; Button v. Hudson River R. Co. 18 N. Y. 248; Nashua Iron. etc., Co. v. Worcester, etc., R. Co., 62 N. H. 159: Tanner v. Bouisville, etc., R. Co., 60 Ala. 621.

(8) Smith v. Norfolk, etc.. R. Co. 114 N. C 728, 25 L. R. A. 287, 19 S. E. 863.

by a train, and it appears that the employees in charge of the train did not see him, but that they might have seen him if they had kept a lookout, the question immediately arises whether the railroad company owed any duty to keep a lookout for trespassers."

If under the decision of that state no such duty was incumbent upon the railroad company, and there was no other breach of of duty on its part, the question as to the applicability of the doctrine of last clear chance could not properly arise, for if the defendant was free from negligence then it would not be liable even if the plaintiff was entirely free from fault.10

When, however, a breach of duty on defendant's part, operating as a proximate cause of the injury, is established independently, and it further appears that plaintiff or deceased was guilty of antecedent negligence in getting into a position of peril, so that under the ordinary rule he would be chargeable with contributory negligence, the question arises whether he may be relieved of the operation of that general doctrine by the application of the doctrine of last clear chance; and it is not until this point is reached that the question whether the antecedent negligence of plaintiff or decedent continued until the instance of the impact is material.

The doctrine of last clear chance applies only to cases where the defendant's opportunity of preventing the injury by the exercise of due care, was later in point of time than that of the plaintiff. This is a rule of universal application and it affords the test of the applicability of the doctrine to a particular case. As a sort of corollary to this rule, the courts have stated as a general proposition, that, where the person injured has negligently exposed himself to the injury, he cannot recover on account of the negligence of the defendant by an application of this doctrine, unless it appears

that the defendant's negligence intervened or continued after the negligence of the plaintiff had ceased.11

However, there is at least one class of cases in which it has been held that an injured person may recover by the application of the doctrine of last clear chance, notwithstanding his own negligence continues up to the very time of the injury. This class includes such cases as those involving railroad trespassers, where the engine driver or motorman actually possesses knowledge of the danger in which plaintiff is and has the power to prevent the accident and fails to take advantage thereof. In a recent Indiana case of this nature,12 the Court instructed the jury that deceased was a trespasser on defendant's track and that they should find for the defendant unless they found that defendant's engineer discovered that the decedent was in a perilous position, and that he was unaware of such condition, and that such engineer made such discovery in time to have stopped or checked the train and avoided striking decedent. The instruction concluded as follows: "But, in case you find that said engineer, with ordinary care in the use of such means as were then at hand and under his control, and without endangering the train or the persons thereon, could have stopped said avoid striking said decedent then your vertrain, or checked the speed thereof so as to dict should be for the plaintiff." This instruction was objected to on the ground that it gave the jury to understand that the decedent was not obliged to use ordinary care, with which he is always chargeable in case of injury. In upholding the instruction the higher Court said: "As a general proposition, the statement of the law contended for by appellant is correct, but in the application of the doctrine of last clear chance the existence of the negligence of the party injured or his failure to exercise.

(11) Indianapolis Traction, etc., Co. v. Croly, 54 Ind. App., pg. 582.

(12) Pennsylvania Co. v. Reesor, (Ind. App.) 108 N. E. 983.