decide it except a jury. When they determined that issue in the affirmative, as the evidence undoubtedly justified them in doing, the question of assumed risk was removed from the case.

It is argued by appellant that appellee must have been guilty of contributory negligence if he knew of the defects in the water glass; but that does not necessarily follow. If he had not been relieved from the imputation of assuming the risk by the legislature making the test, the conduct of a person of ordinary care, a knowledge of the defects would create the state of assumed risk, but not of contributory negligence. The distinction between the two must be observed, or confusion will result in the application of the rules pertaining to the two defenses. When it was proved that 75 or 80 persons were using engines on appellant's railroad equipped with water glasses, guarded as was the one that exploded and hurt appellee, it would seem that fact alone would show that persons of ordinary care would use such engines, and justified the jury in eliminating the question of assumed risk from the When that defense is removed from the case, it does not necessarily follow, because appellee knew of the defects in the water glass, that he was guilty of contributory negligence in remaining in the service of his employer. The rules of assumed risk and contributory negligence are dependent on widely separated tests and principles. Entering the employment of one who is known to furnish defective appliances might be assuming the risks arising therefrom, but it is not contributory negligence. The latter is the doing of some act or omission amounting to a want of ordinary care as, concurring with some negligent act of the defendant, is the proximate cause of the injury for which redress is sought. There must be some positive act of commission or omission that caused the injury or contributed thereto.

case.

Assumed risk refers to a general course of action in connection with the master's way of doing business and the appliances furnished. Contributory negligence refers to the question as to whether the servant acted prudently in connection with a certain matter that arose for his consideration at a certain time and place. The first is an intelligent choice; the latter is carelessness. In the case of Mundle v. Mfg. Co. (Me.), 30 Atl. 16, it was said: "Assuming the risks of an employment is one thing, and quite a different thing from incurring an injury through contributory negligence." Again, in the case of Dempsey v. Sawyer (Me.), 49 Atl. 1035, it was held: "There is an essential difference between the defense of contributory negligence and the defense. of assumption of risk-a difference often obscured, but which should be kept clear in the mind for a correct understanding of the relative rights and duties of master and servant, as to the dangers arising from the use of defective machinery or appliances. Contributory negligence is a breach of the legal duty of due care imposed by law upon the servant, however unwilling or protesting he may be. Assumption of risk is not a duty, but is purely voluntary upon the part of the servant. The risk from the master's breach of duty never rests upon the protesting or unwilling servant. Volens, not sciens, is the test."

If the contention made by the appellant, that the question of whether an appliance is a reasonably safe one should always be left to railway companies, and should never be inquired into by courts or juries, should be sustained, railroad companies could never be held liable for injuries arising from defective appliances furnished to their

servants. Whatever may be the attitude of the courts of the United States or other States, such a rule finds no countenance or support in the decisions of Texas. A railroad company can not be heard to justify its negligence in failing to exercise ordinary care in selecting the appliances to be furnished its employees by a statement that it has the authority to choose its own appliances, no matter how defective. The doctrine of the right of the master to carry on his business in his own way may be conceded; but it is not so sacred a right that a court or jury can not inquire into it to ascertain if he has negligently injured his servant. The master may run his business in the way to suit himself, but subject to an inquiry as to whether ordinary care was used. It was the duty of the railroad company to use ordinary care to provide its engines with the best appliances and improvements for the protection of its employees, and it was a question of fact as to whether such care was exercised. The final arbiter as to the exercise of such care can not be the master, who of all others would be the most unfit tribunal to decide upon its own care, but must be an impartial jury in a court of law and justice. The evidence in this case shows the wisdom of such a rule, for it clearly appears that a use of the proper means, at the hands of appellant, in screening its water glasses, would have protected its employees from the dangers attendant upon the use of open slotted guards that practically give no protection against constantly recurring explosions of the glasses. As said by the Supreme Court of the United States in the case of Railway v. McDade, 191 U. S. 64, 24 Sup. Ct. 24, 48 L. Ed. 96: "Where no necessity exists as in the present case for the use of dangerous appliances, and where it is a matter requiring only due skill and care to make the appliances safe, there is no reason why an employee should be subjected to dangers wholly unnecessary to the proper operation of the business of the employer.'

It was established, by a preponderance of the evidence, that a device for protecting against explosions was in use by other railroads that was much safer than the one used by appellant, and much of the evidence tended to show that such a device was an absolute protection. It appeared that appellant had adopted it on some of its engines, and that it could be substituted for the older device in a few minutes and at a small cost. The failure to adopt the safer and better device raised the issue as to the exercise of ordinary care in the selection of its appliances by appellant and it was properly submitted to the jury. The act of 1905 is not "oppressive, arbitrary or unreasonable," nor is it unconstitutional. Similar acts have been in existence in England, Canada, and different States of the Union, and have been uniformly sustained by the courts of last resort. Similar laws have been sustained also by the Supreme Court of the United States. (McGuire v. Railway (Iowa), 108 N. W. 902; Railway v. Bristol, 151 U. S. 567, 14 Sup. Ct. 437; Railway v. Ellis, 165 U. S. 158, 17 Sup. Ct. 255; Railway v. Buffalo Steamer Co., 111 N. Y. 132, 19 N. E. 63; People v. Railway, 70 N. Y. 569.) It is true as said by the court of appeals of New York in the last cited case: "Railroad corporations hold their property and exercise their functions for the public benefit, and are therefore subject to legislative control. The legislature, which has created them, may regulate the mode in which they shall transact their business, the price which they shall charge for the transportation of freight and passengers, the speed at which they may

run their trains, and the way in which they may cross or run upon highways and turnpikes used for public travel. It may make all such regulations as are appropriate to protect the lives of persons carried upon railroads, or passing upon highways crossed by railroads." It could also be added that the legislature has the authority to compel the adoption of devices and appliances for the protection of those in the service of railways, can declare that the doctrine of fellow-servants shall not apply in cases arising between railways and their employees, and can perforce alter, change, or abolish the law of assumed risks. In discussing the constitutionality of laws, the mistake is too often made of endeavoring to apply the same rules in the government of natural persons not engaged in public occupations to the control of creatures of law, whose very existence rests in the hands of the legislative branch of the government, and which can and must be regulated in a manner that individuals in pursuit of private occupations, with a due regard to the principles of free government and the rights of personal liberty, can not be regulated. Barring an interference with vested rights, rights of property, and the obligations of existing contracts, the legislature may impose upon private corporations, engaged in serving the public, any additional restriction and burden that the public good may require or render proper and expedient.

The statute of 1905 interferes with no vested right, and does not in any manner impair the obligation of contracts, but it is a measure passed, undoubtedly, to better protect the lives and limbs of those who are in the employment of railroads or street railways. It is an exercise of the police power of the State over the creatures that it has by its legislative fiat brought into existence. "This police power of the State extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State." (Cooley's Const. Lim. (7th Ed.) p. 831.) The exercise of this police power is the exercise of a power belonging to State sovereignty, reserved and protected by the Constitution of the United States. The clause of that Constitution which forbids the passage of laws impairing the obligation of contracts is frequently invoked by private corporations to prevent the legislatures of the States from regulating and controlling them, but it is uniformly held by Federal and State courts, that they are subject to such regulations from time to time as may be deemed necessary to guard the rights of individuals and other corporations, shield the public health, and protect the safety of life and limb. There is no limit to this police power except that it must be exercised for the comfort, safety, or welfare of society; that it must not destroy any charter privilege, nor interfere with any vested right. The State of Texas has not transgressed these bounds in restricting the defense of assumed risk. The judgment is affirmed.

EMPLOYERS' LIABILITY-CONSTRUCTION OF STATUTE-ACTS OF SUPERINTENDENTS-FORM OF COMPLAINT-Harris v. Baltimore Machine and Elevator Works, Court of Appeals of New York, 80 Northeastern Reporter, page 1028.-Norman Harris had recovered a judgment for damages for injuries received while in the employment of

the company named, from which judgment an appeal was taken. The appeal to the appellate division of the supreme court resulted in the affirmation of the judgment, as did the further appeal to the court of appeals. The facts are given in the opinion as delivered by Judge Gray, reproduced below:

* * *

The question of interest to the profession in this case is as to the sufficiency of a complaint under the employers' liability act (Laws 1902, p. 1748, c. 600). This action was brought to recover damages for the injuries sustained by the plaintiff by reason of the negligence of his employer. The complaint alleged, in substance, that the plaintiff was directed by the defendant, a foreign corporation, in whose employ he was, to enter an elevator, "which the defendant had constructed and then had under its supervision and control;' that the elevator was negligently constructed by the defendant, "in that the steel rope, or cable, by which the elevator car was suspended * was loosely * * and improperly fastened to the top of the car and that the safety appliances had not been attached thereto;" that by reason of the defendant's negligence "in directing the plaintiff to enter the car, while it was in said condition," and without fault on plaintiff's part, the "cable became unfastened from the elevator" and the car fell; and that, by reason of the premises, the plaintiff sustained certain injuries. The final paragraph of the complaint alleged that "within 120 days after the occurrence of the said accident, * * * and on the 18th day of March, 1903, due notice in writing of the time, place, and cause of the injury was given to the defendant in the manner provided by and pursuant to chapter 600 of the Laws of 1902."

* * *

Upon the trial proof was given upon which the jury returned a verdict against the defendant and the unanimous affirmance by the appellate division of the plaintiff's judgment is conclusive upon us that the facts sufficiently supported the verdict. At the opening of the trial, at the close of plaintiff's case, and at the close of the evidence, the defendant moved that the plaintiff be compelled to elect whether he proceeded at common law, or under the employers' liability act. The motions were, at first, denied; but, when the evidence was all in, the plaintiff was directed to, and did, elect to proceed under the act, after a suggestion by the trial court that there was no common-law cause of action. The appellant argues that the complaint failed to state facts sufficient to constitute a cause of action under the employers' liability act, that, therefore, his motion to dismiss it for that reason should have been granted, and that the denial was error.

We think that the complaint was sufficient, in the respect argued by the appellant. The employers' liability act extended the liability of the employer of labor at common law, and, in order to sufficiently plead a cause of action thereunder, required, as a condition precedent to a recovery, that notice be given of the accident to the master. It gave an additional cause of action, because it prescribed that a master shall be liable for the negligence of the superintendent or the person acting as such. (Gmaehle v. Rosenberg, 178 N. Y. 147, 70 N. E. 411.) At common law such a liability was not recognized, unless the superintending servant was the alter ego of the master with respect to the work.

This complaint not only set forth facts showing a defect in the condition of the machinery connected with the employers' business, due to his negligence, but necessarily as the employer was a corporation, predicated the charge of the negligence from which he suffered, namely, a direction to enter an unsafe elevator, upon the act of one of its servants. Further, the allegation in the complaint as to notice specifically drew the attention of the defendant to the fact that the plaintiff was resting his cause of action, and was depending, upon the provisions of the employers' liability act.

The proofs established that the negligence, which occasioned the happening of the accident was that of the defendant's superintendent. The failure to insure the safety of the attachment of the cable to the elevator, by fastening the ends properly, was due to his neglect, and, when the plaintiff came to work at the place, it was the superintendent who directed him to go upon it for the purpose. It is not necessary, in order to plead a cause of action under the employers' liability act, that its precise language should be made use of, provided that it appear plainly from what is alleged that the cause of action was within the provisions of the act, and that its requirement of the giving of a notice to the defendant has been complied with. That is this case.

The ruling upon the degree of care due from the defendant, with respect to providing a reasonably safe elevator, is to be considered in the light of the facts, which showed it to be one in the course of construction and installation. It was in use for the purpose of the work, which plaintiff was directed to perform, on the day in question and the main charge fairly described the situation. The jury could not have been misled upon the subject of the measure of defendant's duty to the plaintiff, nor have supposed that it was greater than an obligation to provide a safe place for the plaintiff to work upon.

The judgment should be affirmed, with costs.

EMPLOYERS' LIABILITY-EMPLOYMENT OF CHILDREN-VIOLATION OF STATUTE-NEGLIGENCE-Leathers v. Blackwell's Durham Tobacco Company, Supreme Court of North Carolina, 57 Southeastern Reporter, page 11.-This was an action to recover damages for injuries to a child employed in violation of the statute prohibiting the employment in factories of children under 12 years of age. Judgment was rendered in the child's favor in the superior court of Durham County, from which an appeal was taken. The appeal was based in part on a contention as to whether the employment of children in violation of the statute was negligence per se, the appellant maintaining that it was no more than evidence of negligence. The supreme court approved the finding of the lower court, and also construed the violation of the law to be negligence per se. The following extract from the opinion of the court, as delivered by Judge Connor, indicates the grounds on which this conclusion was reached:

It is not denied that the plaintiff was injured in a "factory or manufacturing establishment" within the meaning of the statute. We thus